      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00256-CV



                            Leonard Meredith and Angela Meredith,
           Individually and as Next Friend of Courtney Meredith, a Minor, Appellants

                                                  v.

               Mark Chezem as Next Friend of Carli Chezem, a Minor, Appellee


    FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
           NO. 39617, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                 Appellants Leonard Meredith and Angela Meredith appeal from the trial court’s

judgment awarding actual damages to appellee Mark Chezem for personal injuries sustained by his

daughter, Carli Chezem, in an all-terrain vehicle (ATV) accident that occurred on the Merediths’

property.1 Because the recreational-use statute, see Tex. Civ. Prac. & Rem. Code §§ 75.001-.007,

governs this dispute and Chezem failed to obtain a finding of gross negligence, malicious intent, or

bad faith, as required by the statute, we reverse the judgment of the trial court and render judgment

that Chezem take nothing on his claims.




       1
         Notice of appeal for this case was originally filed in this Court in September 2016, at which
time the case was transferred to the El Paso Court of Appeals in compliance with a docket-
equalization order issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court
ordered that certain cases be transferred back to this Court from the El Paso Court, and we consider
this appeal pursuant to that order. See Misc. Docket No. 18-9054 (Tex. Apr. 12, 2018) (per curiam).
                                         BACKGROUND

               In 2010, Mark Chezem’s daughter Carli was visiting with her friend, Courtney

Meredith, at the Merediths’ home in Burnet County. During the visit, the twelve-year-old girls asked

the Merediths if they could drive around the Merediths’ property on the family’s ATV.2 The Merediths

gave the girls permission to use the ATV but did not accompany the girls or supervise their use.

               Courtney and Carli rode the ATV around the Merediths’ property that morning

without incident before returning to the Merediths’ house to pick up two additional minor

passengers, Courtney’s sister Emily and her friend. Although Emily initially drove the ATV, at some

point during the excursion, Courtney assumed driving duties while the other three girls, including

Carli, rode in the passenger seats. As the group traveled back to the Merediths’ house, Courtney

made a sharp left turn, causing the ATV to flip over. Carli sustained a broken ankle and a puncture

wound, requiring two surgeries and physical therapy.

               In 2011, Chezem filed suit on behalf of his daughter asserting claims for negligence,

negligence per se, negligent entrustment, and gross negligence. Following a jury trial, the jury found

that the Merediths’ negligence proximately caused Carli’s injuries and that she had sustained

$88,620.38 in past and future damages. The jury also expressly found that the Merediths’ actions

did not constitute gross negligence.

               Citing the recreational-use statute, the Merediths filed a motion for entry of judgment

requesting that the trial court sign a judgment declaring that Chezem take nothing on his claims.




       2
         Leonard Meredith’s undisputed testimony at trial establishes that the property is used for
farm and ranch work, including keeping cattle and growing hay and wheat.

                                                  2
See Tex. R. Civ. P. 301 (permitting judgment notwithstanding verdict); McCullough v. Scarbrough,

Medlin & Assocs., 435 S.W.3d 871, 885 (Tex. App.—Dallas 2014, pet. denied) (explaining that

judgment notwithstanding verdict is proper when “(1) the evidence is conclusive and one party is

entitled to judgment as a matter of law, or (2) a legal principle precludes recovery”). The trial court

denied the Merediths’ motion, and instead signed a judgment awarding actual damages in the amount

found by the jury. This appeal followed.


                                            DISCUSSION

                In their first issue on appeal, the Merediths assert that the trial court erred in denying

their motion for a take-nothing judgment because, according to the Merediths, the undisputed

evidence establishes that the recreational-use statute applies to Chezem’s claims and required

Chezem to obtain a finding of gross negligence, malicious intent, or bad faith.

                The recreational-use statute was enacted to encourage landowners, both governmental

entities and private parties, to open their land to the public for recreational use by limiting their

potential liability for injury. See City of Waco v. Kirwan, 298 S.W.3d 618, 626 (Tex. 2009). Under

the statute, the owner, lessee, or occupant of agricultural land does not assure that the premises are

safe for recreational purposes and does not assume responsibility for the actions taken by persons

permitted or invited to enter the property for recreation.3 Tex. Civ. Prac. & Rem. Code § 75.002(b).


       3
           In relevant part, Section 75.002 provides:

              If an owner . . . of agricultural land gives permission to another or invites
       another to enter the premises for recreation, the owner, . . . by giving the permission,
       does not:


                                                    3
In addition, the statute “creates a legal fiction, classifying the invited recreational user of the property

as a trespasser” and, in effect, restricts landowner liability by raising the burden of proof to that of

gross negligence, malicious intent, or bad faith. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006);

see Tex Civ. Prac. & Rem. Code § 75.002(b)(3), (d).

                In this case, the parties do not dispute that the Merediths’ property is “agricultural

land,” as that term is used in the recreational-use statute. See id. § 75.001(1)(c). In addition, the

undisputed evidence establishes that Carli was an invited social guest to the Merediths’ property and

was “invited to enter the premises.” See id. §§ 75.002(b), .003(h). Nevertheless, Chezem argues

that the jury’s finding of ordinary negligence is sufficient to support the trial court’s judgment

because the limitation on liability found in the recreational-use statute does not apply in this case

for three reasons.

                First, Chezem argues that the recreational-use statute does not govern this dispute

because Carli was not engaged in “recreation” at the time of the accident that is the basis of his

claims. The statute applies if a claimant is engaged in “recreation” on the property at the time of the




                (1)     assure that the premises are safe for that purpose;

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

                (3)     assume responsibility or incur liability for any injury to any individual
                        or property caused by an act of the person to whom permission is
                        granted or to whom the invitation is extended.

Tex. Civ. Prac. & Rem. Code § 75.002(b).


                                                     4
alleged injury, even if the claimant entered the premises for some other purpose. City of Bellmead

v. Torres, 89 S.W.3d 611, 613-14 (Tex. 2002). “Recreation” is statutorily defined and expressly

includes “pleasure driving, including . . . the use of all-terrain vehicles.” See Tex. Civ. Prac. & Rem.

Code § 75.001(3)(H). Although Chezem does not dispute that the girls were engaged in “recreation”

as they explored the Merediths’ property using the ATV, he contends that at the time of the accident,

the girls had already completed their excursion and were traveling back to the house, “super wet and

muddy and cold.” In effect, Chezem asserts that the recreational-use statute does not apply because

the girls were not “pleasure driving,” or otherwise engaging in “recreation,” at the very moment

the accident occurred.

                A claimant need not be actively participating in the recreational activity at the

exact moment of the injury, however, to come within the purview of the recreational-use statute. See

Karl v. Brazos River Auth., 494 S.W.3d 168, 172 (Tex. App.—Eastland 2015, pet. denied). Instead,

Texas courts have recognized that a person is engaged in “recreation” under the statute not only

when actively participating in recreation but also when engaged in acts incidental to that recreation.

See, e.g., id. (concluding that recreational-use statute applied to claimant who fell in parking lot

because claimant was injured during conduct on premises related to activity of swimming); City

of Plano v. Homoky, 294 S.W.3d 809, 817 (Tex. App.—Dallas 2009, no pet.) (concluding that

recreational-use statute applied to claimant who fell in clubhouse after playing golf because conduct

at time of injury was related to activity of golf). Here, even assuming (as Chezem implies) that Carli

was not having a pleasurable experience on the ATV in the moments immediately preceding

the accident, she was, at the very least, “us[ing] [an] all-terrain vehicle[]” and in the process of



                                                   5
concluding her “pleasure driving” excursion. See Tex. Civ. Prac. & Rem. Code § 75.001(3)(H).

Based on the undisputed evidence, we conclude that Carli was engaged in “recreation” at the time

of the accident.

               In his second argument, Chezem asserts that the recreational-use statute does not

apply because the evidence establishes that the ATV was an “attractive nuisance.” Under the

attractive-nuisance doctrine, the owner or occupier of premises owes a trespassing child the same

duty as an invitee with respect to a “highly dangerous artificial condition on the land.” See id.

§ 75.007(c) (codification of common-law doctrine of attractive nuisance); Texas Utils. Elec. Co. v.

Timmons, 947 S.W.2d 191, 193-94 (Tex. 1997) (outlining common-law elements of attractive

nuisance (citing Restatement 2d of Torts § 339)). As Chezem points out, the statute specifically

provides that “[it] does not affect the doctrine of attractive nuisance,” subject to certain exceptions

not at issue here. Tex. Civ. Prac. & Rem. Code § 75.003(b).

               When a plaintiff asserts a claim under the attractive-nuisance doctrine, whether an

attractive nuisance exists is an issue of duty and therefore a question of law for the court to decide.

Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 491 (Tex. App.—Beaumont 2004, pet. denied);

see Nabors v. Drilling U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (explaining that “the

existence of a duty is a question of law”). On the other hand, when an attractive-nuisance exists,

the determination of whether a landowner has breached his duty under the doctrine by failing to

exercise reasonable care to eliminate the danger is a question of fact. See Aguirre v. Vasquez,

225 S.W.3d 744, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (explaining that in negligence

claims, “resolution of a defendant’s possible breach of duty is a question of fact”). Chezem does not

cite, nor have we found, any authority suggesting that an ATV may be considered “a highly dangerous


                                                  6
artificial condition on the land.” See Tex. Civ. Prac. & Rem. Code § 75.007(c). Moreover, Chezem

did not plead a claim based on attractive nuisance and did not request that the trial court submit a

question to the jury based on an attractive-nuisance theory. See Tex. R. Civ. P. 278. Consequently,

Chezem has waived that potential ground of recovery, and it cannot serve as an independent basis

for affirming the trial court’s judgment. See id. R. 279; Great Am. Prods. v. Permabond Int’l,

94 S.W.3d 675, 684 (Tex. App.—Austin 2002, pet. denied) (concluding that appellant who failed

to plead and to submit jury question waived issue on appeal).

                In his third argument, Chezem argues that the trial court’s judgment should be

affirmed because the Merediths’ liability is based on the Merediths’ negligent actions and, according

to Chezem, the recreational-use statute applies only to premises-defect cases. “[A]s a general

proposition, a landowner . . . ‘is not liable for injury to trespassers caused by his failure to exercise

reasonable care [1.] to put his land in a safe condition for them, or [2.] to carry on his activities in

a manner which does not endanger them.’” Shumake, 199 S.W.3d at 285 (citing W. Page Keeton

et al., Prosser and Keeton on the Law of Torts § 58 at 393-94 (5th ed. 1984)); see also Boerjan v.

Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (per curiam) (concluding that wrongful-death claim

failed as matter of law because defendants did not owe claimants, who were trespassers, ordinary

negligence duty). Similarly, the Texas Supreme Court has recognized that the recreational-use

statute’s limitation on liability under section 75.002 “does not distinguish between injuries caused

by conditions and activities.” Shumake, 199 S.W.3d at 287. Consequently, the recreational-use

statute applies to Chezem’s claims based on negligent acts or omissions, so long as the claims

otherwise fall within the scope of the statute.




                                                   7
                Finally, Chezem argues, in the alternative, that even if the recreational-use statute

applies, the record is sufficient to support the judgment because it establishes as a matter of law that

the Merediths committed negligence per se by failing to comply with section 663.032 of the

Texas Transportation Code. See Tex. Transp. Code § 663.032 (providing that person younger than

14 must be supervised when operating ATV). “Negligence per se is a tort concept where a plaintiff

establishes breach of legal duty based on the violation of statute that was designed to prevent an

injury to that class of persons to which the plaintiff belongs.” Carrera v. Yanez, 491 S.W.3d 90, 94

(Tex. App.—San Antonio 2016, no pet.). As previously discussed, the recreational-use statute

generally immunizes landowners from liability unless they have committed gross negligence or

have engaged in willful or malicious conduct. Shumake, 199 S.W.3d at 287-88. Nothing in the

statute suggests that its limitation on landowners’ liability does not apply to ordinary negligence

claims based on negligence per se theories, as they are in this case. See Tex. Civ. Prac. & Rem. Code

§ 75.003 (“Application and Effect of Chapter”). Thus, even if the evidence conclusively established

that the Merediths committed negligence per se, we could not conclude that this evidence, standing

alone, is sufficient to support the trial court’s judgment.

                The undisputed evidence demonstrates that Carli was invited to enter the Merediths’

agricultural land for recreation. See id. § 75.002(b). Chezem’s claims are therefore governed by the

recreational-use statute, and Chezem was required to plead and prove that Carli was injured as a

result of gross negligence, malicious intent, or bad faith. See id. § 75.002(b), (d). Although Chezem

pleaded that Carli was injured as a result of grossly negligent actions by the Merediths, he failed to

obtain a finding in his favor on this issue. Instead, the jury found that the Merediths were negligent

but not grossly negligent. As the Texas Supreme Court has observed, “[G]ross negligence is not


                                                   8
synonymous with negligence, but rather requires the existence of an extreme risk of serious injury

or death, evaluated both objectively and subjectively.” Stephen F. Austin State Univ. v. Flynn,

228 S.W.3d 653, 660 (Tex. 2007) (citing Shumake, 199 S.W.3d at 287); see also Texas Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004) (applying gross-negligence standard

to recreational-use statute). The jury’s finding that the Merediths were negligent is insufficient to

support the trial court’s judgment.4 Because the trial court erred in denying the Merediths’ motion

for judgment, we sustain the Merediths’ first issue on appeal.


                                          CONCLUSION

               We reverse the judgment of the trial court and render judgment that appellee take

nothing on his claims.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Reversed and Rendered

Filed: December 7, 2018




       4
          In their second issue on appeal, the Merediths assert that the trial court erred in allowing
the submission of a negligence per se instruction as to Courtney. Because the Merediths’ first issue
is dispositive to this appeal, we do not decide this issue. See Tex. R. App. P. 47.1.

                                                  9
