Opinion issued October 31, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00848-CV
                           ———————————
                   THE CITY OF TEXAS CITY, Appellant
                                       V.
EDITH SUAREZ, INDIVIDUALLY AND AS SURVIVING PARENT OF AS
  AND SS, DECEASED, AND AS SURVIVING SPOUSE OF HECTOR
                SUAREZ, DECEASED, Appellee



                   On Appeal from the 212th District Court
                         Galveston County, Texas
                      Trial Court Case No. 11CV1108


     OPINION DISSENTING FROM DENIAL OF EN BANC REVIEW

      I respectfully dissent. As the panel opinion states, this wrongful death and

survival case arises from the drowning deaths of nine-year-old twin girls, AS and
SS, and their father, Hector Suarez, in Galveston Bay at a recreational area owned

and operated by the City of Texas City. Edith Suarez, the twins’ mother and

Hector’s wife, filed suit against the City asserting wrongful death and survival

claims. She alleged that the City was negligent and grossly negligent in failing to

warn of dangerous hidden undertows and rip currents in the waters of a partly

submerged beach constructed by the City next to the Dike of the City of Texas City

(“the Dike”) and opened by the City to the public for recreational purposes—rip

currents that caused the deaths of Suarez and his daughters, who had gone to the

beach for a picnic and swimming and had paid the City’s entrance fee to use the

beach.

      The City filed a plea to the jurisdiction asserting that Suarez’s claims should

be dismissed because they are barred by governmental immunity. The trial court

denied the plea, and the City filed this interlocutory appeal. The panel reversed the

trial court’s order denying the City’s plea to the jurisdiction and rendered judgment

dismissing Suarez’s claims. The en banc court has denied review.

      I believe this wrongful death and survivor case, arising from hidden hazards

on a manmade beach owned by the City and operated for recreational use sets

precedent in this Court that is contrary to established law on three important issues:

      (1) the opinion’s construction of the waiver of immunity provisions of the
          Texas Tort Claims Act, as restricted by Texas’s Recreation Use Statute
          with respect to a wrongful death and survivor action predicated on

                                          2
         premise liability, effectively bars all premise liability claims on
         governmentally owned and maintained premises used for recreation;

      (2) it effectively reinstates for this Court prior law expressly abrogated by
          the Texas Supreme Court; and

      (3) it reverses the standard of review of pleas to the jurisdiction, accepting all
          of the movant’s evidence of the City’s lack of knowledge of hazardous
          conditions, hence lack of gross negligence, as true, while discounting all
          of the nonmovant’s evidence of gross negligence as no evidence.

“I recognize that [e]n banc consideration of a case is not favored and should not be

ordered unless necessary to secure or maintain uniformity of the court’s decisions

or unless extraordinary circumstances require en banc consideration.” TEX. R.

APP. P. 41.2(c). Here, however, I believe that extraordinary circumstances require

en banc review.

      I would grant en banc review and would hold that Suarez produced

jurisdictional evidence from which the trial court, the trier of jurisdictional facts,

could reasonably have concluded that the City’s actions in rebuilding the manmade

beach after Hurricane Ike greatly enhanced the already extreme danger of hidden

undertows and rip currents close to shore on the submerged beach and that the City

was grossly negligent in failing to conduct safety studies, in failing to warn of the

danger, and in charging the public to use the beach for picnicking, swimming, and

wading when the beach was not fit for those purposes. Therefore, I would hold

that the trial court did not err in holding that the City’s immunity to the wrongful

death and survivorship claims of plaintiff Edith Suarez, individually and as
                                          3
surviving parent of A.S. and S.S., deceased, and as surviving spouse of Hector

Suarez, deceased, was waived by the premise liability exception to the Texas Tort

Claims Act as modified by the Recreational Use Statute. I would affirm the trial

court’s denial of the City’s plea to the jurisdiction, and I would remand the case for

trial on the merits.

                              Plea to the Jurisdiction

A.     Standard and Scope of Review

       A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. See

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).

When reviewing whether a plea was properly granted, we first look to the

pleadings to determine if jurisdiction is proper, construing them liberally in favor

of the plaintiff and looking to the pleader’s intent. Id. at 226. The allegations

found in the pleadings may affirmatively demonstrate or negate the court’s

jurisdiction. Id. at 226–27. “However, if a plea to the jurisdiction challenges the

existence of jurisdictional facts, we consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised,” even when those

facts may implicate the merits of the cause of action. Id. at 227. “[I]f the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue,

the trial court rules on the plea to the jurisdiction as a matter of law.” Id. at 228.

However, if the evidence creates a fact question as to the jurisdictional issue,

                                           4
jurisdiction is for the fact-finder to decide. Id. at 227–28. In considering the

jurisdictional evidence, we “take as true all evidence favorable to the nonmovant”

and “indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.” Id. at 228.

B.    Governmental Immunity

      Generally, the doctrine of governmental immunity protects political

subdivisions, such as cities, from suit and liability. Harris Cnty. v. Sykes, 136

S.W.3d 635, 638 (Tex. 2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d

692, 694 n.3 (Tex. 2003). Immunity from suit, as distinguished from immunity

from liability, deprives a trial court of subject matter jurisdiction unless the

government has consented to being sued. Miranda, 133 S.W.3d at 224; Tex. Dep’t

of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The governmental entity’s

consent to suit allows the trial court to exercise jurisdiction over the lawsuit. See

Jones, 8 S.W.3d at 638. A plaintiff bears the burden to affirmatively demonstrate a

trial court’s jurisdiction by alleging a valid waiver of immunity, which may be

either by a reference to a statute or by express legislative permission. Id.

      1. Texas’s Wrongful Death Statute

      Suarez brought her claims pursuant to Texas’s Wrongful Death Statute,

which provides, “A person is liable for damages arising from an injury that causes

an individual’s death if the injury was caused by the person’s or his agent’s or

                                          5
servant’s wrongful act, neglect, carelessness, unskillfulness, or default.” TEX. CIV.

PRAC. & REM. CODE ANN. § 71.002(b) (Vernon 2008).                The statute defines

“person” to mean “an individual, association of individuals, joint-stock company,

or corporation or a trustee or receiver of an individual, association of individuals,

joint-stock company, or corporation.” Id. § 71.001(2) (Vernon 2008). The statute

further defines “corporation” to include a municipal corporation; that is, a city. Id.

§ 71.001(1). The Wrongful Death Statute is not sufficient, by itself, however, to

waive a city’s immunity to suit. To waive immunity, a statute must contain a clear

and unambiguous expression of waiver.                Rolling Plains Groundwater

Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759 (Tex. 2011) (citing

TEX. GOV’T CODE § 311.034 (Vernon 2011) and Taylor, 106 S.W.3d at 696).

      The Wrongful Death Statute expressly states that it applies only if the

individual injured would have been entitled to bring an action for the injury if the

individual had lived. TEX. CIV. PRAC. & REM. CODE ANN. § 71.003(a) (Vernon

2008). Here, AS, SS, and Hector Suarez would have been entitled to bring an

action against the City if they had lived if they first showed either (1) that the City

was performing a proprietary function in operating the manmade beach as a

recreational facility or (2) that, even though the City was performing a

governmental function in operating the manmade beach, its immunity from suit

was waived by its actions. See Miranda, 133 S.W.3d at 224–25 (discussing

                                          6
waiver of immunity in Texas Tort Claims Act). Because I believe the City’s

immunity to Suarez’s claim for damages is waived by Tort Claims Act 1 section

101.021(2), governing premise liability, as modified by Texas’s Recreational Use

Statute,2 even if the City’s operation of the beach is a governmental function, I

would not address Suarez’s argument that the City’s operation of the beach is a

proprietary function.

      2. Texas’s Tort Claims Act and Recreational Use Statute

      Suarez contends that the dangerous condition of the Texas City manmade

beach created a duty of ordinary care on the part of the City either to warn of the

condition or to make the beach reasonably safe for use as a recreational facility;

that is, she raises a premise defect claim against the City. Suarez claims that the

Tort Claims Act waives immunity for wrongful death caused by a premise defect.

She further argues that, even if the Recreational Use Statute restricts the duty owed

by a governmental entity for premise liability to the duty owed to a trespasser,

rather than an invitee or licensee, and even if it restricts the Tort Claims Act’s

waiver of the governmental entity’s immunity for its actions to acts that are wanton

and willful or grossly negligent, the City’s immunity to her claims is waived under



1
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (Vernon 2011 & Supp.
      2012).
2
      See id. §§ 75.001–.003 (Vernon Supp. 2011 & Supp. 2012).
                                         7
controlling Texas Supreme Court law because the City acted with gross

negligence. I agree.

      The Tort Claims Act provides a limited waiver of governmental immunity

from suit for certain tort claims.      See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.021, 101.025 (Vernon 2011). The Act includes, among other things, a

limited waiver of the state’s immunity from suits alleging personal injury or death

caused by premise defects.3 Id. §§ 101.021(2), 101.022 (Vernon 2011); City of

Dallas v. Giraldo, 262 S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.).

      Section 101.022 of the Tort Claims Act provides, in relevant part:

         [I]f a claim arises from a premise defect, the governmental unit
         owes to the claimant only the duty that a private person owes to a
         licensee on private property, unless the claimant pays for the use of
         the premises.

TEX. CIV. PRAC. & REM. CODE § 101.022(a).

      For the Tort Claims Act’s limited waiver of sovereign immunity for a

premise defect to apply, the plaintiff must prove: (1) the condition of the premises



3
      Suarez also alleged in her petition that her claim, in part, arose from a special
      defect in addition to a premise defect. See TEX. CIV. PRAC. & REM. CODE ANN.
      § 101.022(b) (Vernon 2011). Whether a condition is a premise defect or a special
      defect is a question of law for the court to decide. City of Dallas v. Giraldo, 262
      S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.). “Special defects” under the
      Tort Claims Act are “excavations or obstructions on highways, roads, or streets.”
      Id. at 870. I would hold that, as a matter of law, Suarez’s claim is not a special
      defect claim but a premise defect claim. See City of Dallas v. Reed, 258 S.W.3d
      620, 622 (Tex. 2008) (“Special defects are defects of the same kind or class as
      ‘excavations or obstructions on highways, roads, or streets.’”).
                                           8
created an unreasonable risk of harm to the licensee or invitee; (2) the owner failed

to exercise ordinary care to protect the licensee or invitee from danger; and (3) the

owner’s failure was a proximate cause of injury to the licensee or invitee. Giraldo,

262 S.W.3d at 869. A premise defect claim is based on the property itself being

unsafe. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).

      In premise defect cases, the governmental unit owes “only the duty that a

private person owes to a licensee on private property, unless the claimant pays for

the use of the premises” in which case the duty owed is that owed to an invitee.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a); Shumake, 199 S.W.3d at 283 &

n.3; see City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no

pet.); Garcia v. State, 817 S.W.2d 741, 742 (Tex. App.—San Antonio 1991, writ

denied). A personal injury claimant alleging a premise defect claim against a city

with respect to a licensee must plead and prove either (1) that the city’s conduct

was “willful, wanton, or grossly negligent” or (2) that “the city had actual

knowledge of the dangerous condition, the claimant did not, and the city failed to

warn of the condition or make the condition reasonably safe.” City of Weston v.

Gaudette, 287 S.W.3d 832, 836 (Tex. App.—Dallas 2009, no pet.); see Tex. S.

Univ. v. Gilford, 277 S.W.3d 65, 69–70 (Tex. App—Houston [1st Dist.] 2009, pet.

denied) (holding that limited duty owed to licensee requires that landowner either

warn licensee of, or make reasonably safe, dangerous condition of which

                                         9
landowner has actual knowledge and licensee does not; but if plaintiff pays fee,

duty owed is that of invitee and owner is required to reduce or eliminate

unreasonable risk of harm created by premise condition of which owner is or

reasonably should be aware) .

      The Tort Claims Act modifies a governmental unit’s waiver of immunity,

however, in a premise liability case in which the plaintiff was injured while

engaging in a recreational activity within the scope of the Recreational Use Statute.

Miranda, 133 S.W.3d at 225 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.058

(Vernon 2011)); see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001–.003

(Vernon 2011 & Supp. 2012). In such a case, the Recreational Use Statute controls

over the Tort Claims Act. TEX. CIV. PRAC. & REM. CODE ANN. § 75.003(g)

(Vernon 2011) (providing that chapter 75 controls over chapter 101 to extent

chapter 75 limits liability of governmental unit under circumstances in which

governmental unit would be liable under chapter 101); id. § 101.058 (Vernon

2011) (providing same).

      The Recreational Use Statute provides:

      If an owner, lessee, or occupant of real property . . . gives permission
      to another to enter the premises for recreation, the owner, lessee, or
      occupant, by giving the permission, does not:
         (1) assure that the premises are safe for that purpose;

         (2) owe to the person to whom permission is granted a greater
             degree of care than is owed to a trespasser on the premises; or

                                         10
         (3) assume responsibility or incur liability for any injury to any
             individual or property caused by any act of the person to whom
             permission is granted.
TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c) (Vernon 2011).

      Section 75.002(d) of the statute provides that subsection (c) “shall not limit

the liability of an owner, lessee, or occupant of real property who has been grossly

negligent or has acted with malicious intent or in bad faith.” Id. § 75.002(d).

      The statute’s definition of “recreation” is a non-exclusive list of activities,

including, inter alia, hunting, fishing, swimming, boating, camping, picnicking,

hiking, nature study, “waterskiing and other water sports,” and “any other activity

associated with enjoying nature or the outdoors.” Id. § 75.001(3).

      Under section 75.002(c), when injury or death results on government-

owned, recreational land, the Recreational Use Statute limits the governmental

unit’s duty to that owed by a landowner to a trespasser. TEX. CIV. PRAC. & REM.

CODE ANN. § 75.002(c)(2), (f).     Thus, the Texas Supreme Court has defined the

duty owed by a government entity to a person who is injured or dies on

government-owned recreational land as the duty “to refrain from injuring the

trespasser ‘willfully, wantonly, or through gross negligence.’” Shumake, 199

S.W.3d at 285 (quoting Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193

(Tex. 1997)); see TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(d); see also

Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 659 (Tex. 2007) (holding


                                         11
that section 75.002(d) “limits the landowner’s liability by raising the plaintiff’s

burden of proof to that of gross negligence, malicious intent, or bad faith”).

      The Texas Legislature has defined gross negligence as an act or omission

“which when viewed objectively from the standpoint of the actor at the time of its

occurrence involves an extreme degree of risk, considering the probability and

magnitude of the potential harm to others” and of which risk “the actor has actual,

subjective awareness . . . but nevertheless proceeds with conscious indifference to

the rights, safety, or welfare of others.”       TEX. CIV. PRAC. & REM. CODE

§ 41.001(11) (Vernon 2008). This definition is used to determine waiver of

immunity under the Recreational Use Statute. See Flynn, 228 S.W.3d at 660

(quoting statute); Shumake, 199 S.W.3d at 287 (citing Transp. Ins. Co. v. Moriel,

879 S.W.2d 10, 21 (Tex. 1994) (defining gross negligence for purposes of statute

as “an act or omission involving subjective awareness of an extreme degree of risk,

indicating conscious indifference to the rights, safety, or welfare of others.”);

Miranda, 133 S.W.3d at 225. Gross negligence, as applied under the Recreational

Use Statute, involves two components: (1) viewed objectively from the actor’s

standpoint, the act or omission must involve an extreme degree of risk, considering

the probability and magnitude of the potential harm to others; and (2) the actor

must have actual, subjective awareness of the risk involved, but nevertheless




                                         12
proceed in conscious indifference to the rights, safety, or welfare of others.

Miranda, 133 S.W.3d at 225.

      The Supreme Court of Texas has explained: “[W]hat separates ordinary

negligence from gross negligence is the defendant’s state of mind; in other words,

the plaintiff must show that the defendant knew about the peril, but [its] acts or

omissions demonstrate that [it] did not care.” Louisiana–Pacific Corp. v. Andrade,

19 S.W.3d 245, 246–47 (Tex. 1999); see also City of Corsicana v. Stewart, 249

S.W.3d 412, 414–15 (Tex. 2008) (holding that “actual knowledge” element of

premise defect cause of action requires knowledge that dangerous condition

existed at time of accident).

      In Shumake, the Texas Supreme Court expressly abrogated a line of

intermediate court of appeals’ cases holding that the Recreational Use Statute does

not permit a premise defect claim against the state. Shumake, 199 S.W.3d at 282.

The court held that a landowner may not be held grossly negligent “for failing to

warn of the inherent dangers of nature,” but “a landowner can be liable for gross

negligence in creating a condition that a recreational user would not reasonably

expect to encounter on the property in the course of the permitted use.” Shumake,

199 S.W.3d at 288 (emphasis added). The supreme court quoted Golding v. Ashley

Cen. Irrigation Co. for the proposition,

      If [] a landowner has knowledge of an uncommon, hidden peril or
      danger on the land that is not inherent in the use to which the land is
                                           13
      put and that would not be reasonably discovered or avoided by a
      trespasser, the landowner’s failure to warn or guard against such a
      danger could amount to willful, wanton, or malicious inaction.

Id. (citing Golding, 902 P.2d 142, 134 (Utah 1994)).

      The court also cited City of Houston v. Cavazos for the proposition that

“knowledge that numerous people had drowned over a period of years at the same

artificially created, but hidden, hazard without any action by city to warn or

remedy the hazard was some evidence of gross negligence.” Id. (citing Cavazos,

811 S.W.2d 231, 234–35 (Tex. App.—Houston [14th Dist.] 1991, writ dism’d)).

In that case, the City of Houston was found grossly negligent, supporting a suit for

damages for wrongful death against the city by the parents of a child who had

drowned in a city park. 811 S.W.2d 231, 232 (Tex. App.—Houston [14th Dist.]

1991, writ dism’d). The child slipped and fell while wading along a concrete slab

covered with a foot to a foot and a half of water in a city park behind Lake

Houston Dam where people stood to fish. Although the water at the edge of the

slab dropped off to a depth of fifteen feet, the drop-off could not be seen by people

wading across the slab. The Cavazos family saw numerous people walking across

the slab and assumed it was safe to cross. Id. The younger brother, who was

crossing with his older brother and uncle, “slipped, fell, was carried into the deep

water and drowned.” Id. The expert witness for the Cavazos family testified that

“despite the appearance of safety, the slab was extremely dangerous because of the

                                         14
swift current running across it, the slippery nature of parts of the slab, and the

inability to see the dramatic change in depth at the edge of the slab.” Id.

      Similarly, the claim in Shumake arose from the recreational use of a state

park that resulted in the drowning death of a child swimming in a park river who

was sucked underwater by a powerful undertow and trapped in a man-made

culvert. Id. at 281. The supreme court held that the pleadings were sufficient to

state a premise liability claims under the Recreational Use Statute, and thus, to

waive the state’s sovereign immunity. Id. at 288.

      By contrast, in Flynn, decided a year after Shumake, the supreme court held

that the plaintiff failed to meet the standard for establishing a premises liability on

recreational premises. 228 S.W.3d at 659–60. In that case, the plaintiff bike rider

sued for injuries sustained when she was hit by a stream of water from an

oscillating sprinkler while riding her bike on a trail on a university campus, fell,

and was injured. Id. at 655. The supreme court reiterated its holding in Shumake

that “the recreational use statute does not foreclose premise defect claims, but

rather limits the landowner’s liability by raising the plaintiff’s burden of proof to

that of gross negligence, malicious intent, or bad faith.”         Id. at 659 (citing

Shumake, 199 S.W.3d at 285–87). It emphasized that “gross negligence is not

synonymous with negligence, but rather requires the existence of an extreme risk




                                          15
of serious injury or death, evaluated both objectively and subjectively.” Id. at 660

(citing Shumake, 199 S.W.3d at 287).

      The court commented that the allegations failed to demonstrate “that the

sprinkler presented an extreme risk,” that the university “was aware of the risk,” or

that it “was consciously indifferent to the sprinkler’s capacity to inflict serious

injury.” Id. Moreover, the plaintiff conceded that she was aware of the sprinkler

before she encountered it, and “the recreational use statute does not obligate a

landowner to warn of known conditions.” Id. Thus, the plaintiff’s “conclusory

allegations” of gross negligence were not sufficient to meet the standard imposed

by the Recreational Use Statute or to rebut the jurisdictional evidence attached to

the university’s motion to dismiss. Id.

      Two years later, in City of Waco v. Kirwan, the supreme court further

clarified the duty owed by a governmental entity as a landowner to a recreational

user of the land. In Kirwan, a college student was sitting on a rock cliff watching

boat races in a municipal park located in the City of Waco when the cliff collapsed

beneath him, causing him to fall sixty feet to his death. 298 S.W.3d 618, 620 (Tex.

2009). The cliff was a naturally occurring cliff consisting of loose rock and natural

cracks, and the city had not “altered, modified, or excavated the limestone cliff

beyond the stone wall in front of the cliff,” which had been constructed by the

City. Id. A sign in front of the cliff stated, “FOR YOUR SAFETY DO NOT GO

                                          16
BEYOND WALL.” Id. The student had crossed the wall and was beyond the

warning sign when he fell to his death. Id.

      The supreme court held that the City of Waco retained its governmental

immunity in connection with a premise liability claim brought by the student’s

mother based solely on the collapse of the naturally occurring cliff. Id. at 628–29.

It stated that a landowner does not generally owe a duty “to protect or warn against

the dangers of natural conditions on the land.” Id. at 626. But it also emphasized

what it was not holding, stating that “we do not hold that a party may never be

liable for gross negligence related to a natural condition—under some

circumstances not present in this case, a landowner may be liable.” Id. at 627.

      Acknowledging that it had “previously held that the recreational use statute

imposes a duty with respect to artificially created conditions in many instances,”

the court stated, “we do not strive today to define which conditions are transformed

from ‘natural’ to ‘artificial’ due to a landowner’s modifications” because the facts

of the case did not require such a distinction. Id. It also observed that “it is

possible a duty may be imposed on a landowner who has undertaken affirmative

acts related to natural conditions, such as recommending a certain area or assuring

a patron as to the condition’s safety.” Id. The court then distinguished its earlier

holding in Shumake, noting that the claims made in Shumake—where a nine-year-

old girl was sucked into a manmade culvert by a strong undercurrent while tubing

                                        17
in a state park and drowned—were not based on a naturally occurring condition,

unlike the claims then at issue in Kirwan—where a student fell to his death from a

naturally crumbling cliff beyond a wall he had been clearly warned not to pass.

Id. at 622 (citing Shumake, 199 S.W.3d at 281, 288).

      While the panel brings this case under the rule in Kirwan, I find very little, if

any, difference between this case and Shumake and essentially no difference

between this case and Cavazos. See Shumake, 199 S.W.3d at 281, 288 (holding

that state’s sovereign immunity was waived when child drowned after being

sucked into manmade culvert by strong undercurrent while tubing in state park);

Cavazos, 811 S.W.2d at 232 (affirming finding that city was grossly negligent in

drowning death of child who fell while wading along water-covered concrete slab

in city park behind Lake Houston Dam). I would hold, like the panel, that the

Recreational Use Statute applies to limit the City’s waiver of immunity under the

Tort Claims Act for a wrongful death claim, like Suarez’s, to a premise defect

claim based on the City’s gross negligence. But I would also hold, unlike the

panel, that Suarez has clearly stated such a claim on the basis of the undisputed

jurisdictional facts. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c).

      It is undisputed that the Suarez family entered the beach after paying a park

entrance fee to the City to engage in recreation, specifically, picnicking at picnic

tables provided by the City near the water, and enjoying the beach and the water.

                                         18
The undisputed evidence showed that the beach had been opened for exactly those

purposes and that the City charged a fee for those entering the recently reopened

beach for recreational purposes after changes made to the land and water by the

City after Hurricane Ike.    The record also showed that the drowning deaths

occurred less than one month after the reopening of the Dike following its nearly

two-year closure.     And the evidence also showed that the Suarez twins

immediately entered the water in their street clothes upon arriving at the beach and

were wading within ten feet of the shore when they were swept away by a virulent

hidden rip current, as was their father when he attempted to rescue them. There

were no signs at the manmade beach warning of dangerous rip currents and

undertows there and elsewhere along the length of the Dike or warning of previous

drowning deaths that had occurred before the hurricane.

      In her petition, Suarez alleged that the City had actual knowledge of

“dangerous currents and an unstable bottom.” She also alleged that, “[b]ecause the

area has been the subject of other drownings and swimming incidents, the [City],

in the past put up signs giving warning of undertows, deep holes and areas where

swimming was not allowed.” Suarez also averred,

      There were dangerous currents and an unstable bottom that had been
      created through erosion, ship movements in the Houston ship channel
      and various weather conditions including hurricanes and storms over
      the years. In addition, there had been numerous drownings and
      swimming events to where [the City] knew dangerous conditions
      existed in the area where these drownings occurred.
                                        19
She described the conditions created by the alteration of the beach as “a perfect

storm of man-made and natural forces that converged in a way that does not occur

anywhere else on the Texas Gulf Coast” to create extremely dangerous undertows.

      In addition to evidence showing that, after Hurricane Ike, the Army Corps of

Engineers had placed additional dredged sediment, or spoil, on the beach area,

Suarez relied on the affidavit of her expert, William Worsham, to explain the

unique perils existing at the beach.     In his affidavit, Worsham stated, “The

presence of tidal currents and wind-generated waves interacting with the manmade

beach on the morning of October 3, 2010, caused water motion adjacent to the

beach shoreline of a magnitude sufficient to cause beachgoers standing in shallow

water to lose their footing.” He further stated that dredged sediment placed on the

beach by the Corp of Engineers, had made the submerged beach slippery.

Worsham opined that the beach had a cuspate, or scalloped, surface that generated

rip currents and that “[t]he [D]ike and manmade beach interacted with the waves

and tidal currents naturally present to cause energetic breaking waves and stronger

currents, each of which was highly variable in strength and direction.” According

to Worsham’s expert testimony, “The breaking waves produced by this interaction

were sufficient to cause young persons and adults to lose balance. The likelihood

of losing balance increased rapidly in the surf zone, such that even water depths of

less than two feet were capable of causing loss of balance.”

                                        20
      The City’s Manager of Public Works, Tom Kessler, likewise acknowledged

in his deposition that there had been other drownings at the Dike before October 3,

2010, and that some had involved children. Nevertheless, Texas City Mayor Doyle

testified in his deposition that the City had never conducted any type of analysis or

risk assessment to determine whether there were dangerous currents that could

affect swimmers at the beach area. Nor had the City commissioned any studies to

determine the effect of the Dike on wave action or other naturally occurring

conditions.

      Suarez also pointed to evidence offered in the jurisdictional proceedings

showing that, before Hurricane Ike, the City had erected signs at various locations

on the Dike warning visitors to swim only in designated areas and cautioning them

to beware of undertows and rip currents. But no evidence indicated that a warning

sign had at any time before the hurricane been erected at the manmade beach that

the City had just reopened, nor was there any evidence that any warning signs were

placed at the manmade beach after the repairs were made and the beach reopened

for recreational activities.   Suarez alleged, “The presence of signs in some

locations and not others is an indication that the City was aware of the danger of

rip currents.” Mayor Doyle, however, testified that he was not aware that the

presence of the Dike created rip currents, and the evidence showed that Mayor




                                         21
Doyle was the person who made the decision with respect to what signs should be

erected and where they should be erected.

      The panel discounts all of the foregoing evidence as no evidence of the

City’s gross negligence in failing to warn of dangerous hidden undertows, rip

currents, and extreme risk of drowning, as it warned elsewhere on the beach along

the Dike, where many drownings had occurred; or in failing to conduct any studies

to ascertain whether its own activities in rebuilding the beach had augmented the

danger; or in opening the beach to the public for picnicking and swimming

knowing it had failed to take any steps to ascertain the effect of its actions on the

extreme risk already posed by the natural currents or to warn or to make the beach

safe for the recreational purpose for which it was intended. Rather, the panel takes

all of the foregoing evidence as evidence of the City’s lack of knowledge of the

extreme risk of drowning caused by the dangerous hidden undertows and rip

currents occurring all along the Dike and enhanced by its own activities—rather

than as evidence of the City’s knowledge of the risk and failure to ascertain the

effect of its own activities on that risk and its nevertheless proceeding to open the

beach to the public in conscious indifference to the fate of those who accepted its

invitation to use the beach for recreational purposes.

      The panel opines that rip currents are “naturally occurring marine hazards

commonly found in the ocean,” as if the City’s actions in augmenting the beach,

                                         22
restoring the Dike, and opening the beach to the public for picnicking and

swimming were irrelevant, and that signs elsewhere warning of the rip currents

were adequate to warn families who paid their money to enter the manmade beach

to picnic and swim that they should not enter the water because of the extreme risk

involved. See City of Texas City v. Suarez, No. 01-12-00848-CV, 2013 WL

867428, at *10 (Tex. App.—Houston [1st Dist.] Mar. 7, 2013, no pet. h.) (mem.

op.). Indeed, the panel faults Suarez for failing to explain “how such warnings

indicate that the City had actual knowledge of the uniquely perilous conditions,

caused by a confluence of man-made and natural conditions, she alleged existed on

the day of the drowning.” Id. It observes that “no evidence indicated that a

warning sign had at any time in the past been erected at the beach,” and it

construes this as evidence, not of the City’s gross negligence in failing to warn of

the danger there, but as evidence of the City’s lack of knowledge of any danger

from riptides at the beach. “In short,” it concludes, “no reasonable inference may

be drawn that the City had actual awareness of the alleged unique and perilous

conditions present at beach at the time of the drownings based on its placement of

signs warning of common marine hazards at other locations on the Dike more than

two years before the drowning deaths in this case.” Id. at *11.

      The panel entirely disregards the supreme court’s admonition in Kirwan that

“we do not hold that a party may never be liable for gross negligence related to a

                                         23
natural condition—under some circumstances not present in this case, a landowner

may be liable.” 298 S.W.3d at 627. It likewise disregards the supreme court’s

statement in Kirwan that, in Shumake, it had “held that the recreational use statute

imposes a duty with respect to artificially created conditions in many instances”

and its further statement that “a duty may be imposed on a landowner who has

undertaken affirmative acts related to natural conditions, such as recommending a

certain area or assuring a patron as to the condition’s safety.” Id. It even fails to

recognize that, in this case, the governmental entity had altered the naturally

occurring rip currents and undertows by adding spoils to an already manmade

beach next to the Dike, just as, in Shumake, the city had altered the natural flow of

water in the river by diverting it through a manmade culvert that created a

powerful hidden undertow when the water was high. See 199 S.W.3d at 281. And

it disregards the virtually identical conditions described in Cavazos, in which a

child drowned after slipping on a water-covered concrete slab with a hidden fifteen

foot drop-off that he was wading along at a popular fishing spot in a city-owned

park next to a dam. Cavazos, 811 S.W.2d at 234–35. The supreme court in

Shumake cited these conditions as supporting the gross negligence claim made by

the child’s survivors against the City. See Shumake, 199 S.W.3d at 288 (citing

Cavazos, 811 S.W.2d at 234–35). The panel disregards all of these supreme court

guidelines in applying the law to this case.

                                         24
      In my view, the panel’s analysis is directly contrary to the analysis required

to determine gross negligence for purposes of the Recreational Use Statute as set

out in both statutory and case law. See TEX. CIV. PRAC. & REM. CODE § 41.001(11)

(defining gross negligence as actor’s acts or omissions which, when viewed

objectively from standpoint of actor at time of occurrence, involve extreme degree

of risk, considering probability and magnitude of potential harm to others and of

which risk actor has actual subjective awareness but nevertheless proceeds with

conscious indifference to rights, safety, or welfare of others); Flynn, 228 S.W.3d at

660; Miranda, 133 S.W.3d at 225.

      Despite the testimony of the City’s own city manager, Keasler, as to

previous drownings and of Suarez’s expert, Worsham, as to the dangers created by

the City’s own activities, the panel discounts all evidence of the City’s knowledge

of dangerous conditions at the manmade beach on the ground that “[t]he record

contains no allegations or jurisdictional evidence that any drownings had been

attributed to the unique conditions described by Worsham in his affidavit.”

Suarez, 2013 WL 867428, at *11.          It also states that the record contained

“affirmative evidence indicating that the City had no actual knowledge of the

unique perils Suarez alleges existed at the beach at the time of the drownings.” Id.

The panel cites, in support of its opinion, the evidence showing that the City did

not commission any studies to determine the effect of the Dike on wave action or

                                         25
other naturally occurring conditions and Mayor Doyle’s deposition testimony that

the City had never conducted any type of analysis or risk assessment to determine

whether there were dangerous currents that could affect swimmers at the beach

area. It also cites the mayor’s testimony that he was not personally aware that the

presence of the Dike created rip currents and that he was the person who made the

decision with respect to what signs should be erected and where they should be

erected. The panel also cites evidence that the drowning deaths occurred less than

one month after the reopening of the Dike following its nearly two-year closure as

support for its conclusion that the City did not know of—and, critically, was not

grossly negligent in failing to ascertain—the extreme risk of death from drowning

when the beach was used for the purpose for which it was opened to the public.

      After reviewing the jurisdictional evidence, the panel concludes that there

was “no evidence that creates a factual dispute with regard to whether the City had

actual knowledge or awareness of the alleged unique and dangerous property

condition existing at the beach at the time of the drowning deaths of Suarez’s

family,” and it states that “the record conclusively shows that the City did not have

actual awareness of the unique peril.” Id. at *12. It, therefore, holds “that Suarez

cannot bring a valid gross negligence claim under the Recreational Use Statute;

thus, the City’s immunity from liability for that claim is not waived. As a result,

the City’s immunity from suit also remains intact.” Id. I conclude exactly the

                                         26
opposite. I am hard put to discern any difference between this case and Shumake

and Cavazos, which are almost identical on their jurisdictional facts.

      I read the evidence as showing exactly the opposite of what the panel

concludes it shows.      I read it as evidence that the City knew of dangerous

undertows and rip currents next to the beach that had caused drownings all along

the Dike, including the manmade beach where the Suarezes drowned. The City

nevertheless invited the public to use the reopened beach for recreational purposes,

including picnicking and swimming, in exchange for a fee, after building it up and

restoring the Dike, with conscious indifference to the effect of its actions and

omissions in exposing the public to an extreme risk of drowning, thus breaching its

duty of care for the safety of the public.

      In my view, the panel opinion in this case takes exactly the position of the

line of cases abrogated by the supreme court in Shumake by labeling all hidden

undertows and rip currents as naturally occurring conditions and labeling all

evidence of the enhancement of the danger of the undertow by the City’s activity

and its indifference to the hazards and failure to warn as evidence of the City’s lack

of knowledge of the hazard, hence as no evidence of its gross negligence, and thus

as no evidence of its waiver of immunity to claims of wrongful death arising from

the use of the beach for the purpose for which it was intended, namely as a family-




                                             27
friendly spot for picnicking, swimming, and enjoying nature. See Shumake, 199

S.W.3d at 282 (citing abrogated cases).

      On the panel’s analysis, all evidence that the City ignored or made worse an

already extremely dangerous hidden condition at the manmade beach in the form

of virulent hidden undertows and rip currents without taking any steps to ascertain

the effect of its activities on the safety of the site or to make the site safe for its

intended purpose; that it then invited the public onto the beach precisely for the

purpose of picnicking, wading, swimming, and related activities in return for

payment of a fee; and that it failed to warn even of known naturally occurring

undertows and rip currents that had caused drowning deaths all along the Dike—

much less the much more dangerous riptides close to shore created by its own

activity in rebuilding the beach—is all irrelevant. Rip currents and undertows, in

the view of the panel, are natural occurrences. Thus the panel opinion recreates for

this Court, as binding authority, an analysis expressly repudiated by the supreme

court in Shumake. See 199 S.W.3d at 282, 287.

      In my view, the panel’s holding is directly contrary to the directives of the

supreme court in Shumake, Flynn, and Kirwan, and also to the burden of proof

required to obtain dismissal of a cause of action on grounds of sovereign immunity

in a wrongful death and survivorship case brought subject to the Tort Claims Act

and Recreational Use Statute. By discounting all of the nonmovant’s evidence of

                                          28
jurisdictional facts and relying solely on the conclusory and self-serving testimony

of the City’s mayor that he did not subjectively know that the City’s activities had

created an extremely dangerous condition when the beach was used for its intended

purpose, the panel reverses the standard of review of a plea to the jurisdiction

based on proof of jurisdictional facts. Indeed, its opinion is based on a standard of

review that is exactly the opposite of that mandated by the Texas Supreme Court.

See Miranda, 133 S.W.3d at 226–28.

      In my view, there is ample jurisdictional evidence in the record from which

the trial court, as fact-finder, could reasonably have concluded that the City’s

immunity to Suarez’s premises liability claim against it was waived by the Tort

Claims Act as modified by the Recreational Use Statute. Under Miranda, the court

reviewing a plea to the jurisdiction is required to look first to the pleadings to

determine whether jurisdiction is proper and must construe them liberally in favor

of plaintiff, looking to her intent. See 133 S.W.3d at 226. If the pleadings do not

affirmatively demonstrate or negate the court’s jurisdiction, the court must review

the evidence, taking as true all evidence favorable to the nonmovant and indulging

every reasonable inference and resolving all doubts in favor of the nonmovant. Id.

at 228. If the evidence raises a fact question on the jurisdictional issue, the fact

finder decides that question. Id. at 227–28.




                                         29
      Instead of taking Suarez’s pleadings as true, however, and construing the

evidence liberally in her favor, the panel has done exactly the opposite. The panel

has taken the City’s evidence as true, no matter how conclusory, self-serving, and

incapable of objective proof it is; it has discounted and explained away all of

Suarez’s evidence; and it has, consequently, concluded that, as a matter of law, the

City did not waive its immunity to Suarez’s suit. Cf. id. at 228 (holding that, in

considering jurisdictional evidence evidence, reviewing court must “take as true all

evidence favorable to the nonmovant” and “indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor”). On this standard of review, no

future similar claim involving wrongful death caused by the failure to warn about

hidden natural hazards augmented by human activity on recreational property

owned by a state entity can in this Court.

      I would hold that Suarez produced sufficient evidence from which the fact-

finder as to jurisdictional facts—the trial court—could reasonably have determined

that Suarez stated a claim for premise liability arising from the City’s gross

negligence in failing either to make the beach it opened to the public safe for

recreational purposes or to warn of its dangers, knowing of the extreme risk of

drowning from hidden rip currents and undertows and of its failure to warn,

knowing that it had done no safety studies of the effect of its own actions on these

dangerous hidden hazards, and knowing that the hidden rip currents and undertows

                                         30
posed an extreme risk of danger to members of the public using the beach for its

intended purpose. Thus, I would hold that Suarez has produced sufficient evidence

as to the jurisdictional issue of waiver of immunity for the fact-finder, the trial

court, reasonably to have concluded that the City’s immunity was waived by the

Tort Claims Act as modified by the Recreational Use Statute . See Miranda, at

227-28. I would, therefore, hold that the trial court did not err when it denied the

City’s plea to the jurisdiction, and I would overrule the City’s sole issue.

                                     Conclusion

      I believe that the binding precedent created by the panel opinion in this case

presents important questions of law regarding the correct construction of a

governmental entity’s waiver of immunity to liability for a premise defect under

the Tort Claims Act as modified by the Recreational Use Statute and the proper

standard of review of evidence of jurisdictional facts regarding pleas to the

jurisdiction. I also believe that the panel opinion restores an abrogated line of

cases binding precedent in this Court and brings this Court’s construction of the

law in this important area of governmental immunity into conflict with controlling

supreme court authority.       Thus, I believe this case presents extraordinary

circumstances that meet the en banc standard. See TEX. R. APP. PROC. 41.2(c).




                                          31
      I would grant en banc review, and I would affirm the order of the trial court

refusing to dismiss Suarez’s claims against the City of Texas City on a plea to the

jurisdiction, and I would remand the case for trial on the merits.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

The en banc court Chief Justice Radack and Justices Jennings, Keyes, Higley,
Bland, Sharp, Massengale, Brown, and Huddle.

Justice Keyes, dissenting from the denial of en banc review.




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