











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00048-CV
______________________________

 
LAWANDA WOOLRIDGE, INDIVIDUALLY AND AS REPRESENTATIVE        OF THE ESTATE OF JORDAN CENTRELL WOOLRIDGE, Appellant
 
V.
 
EAST TEXAS BAPTIST UNIVERSITY, Appellee


                                              

On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 03-0403


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Chief Justice Morriss


O P I N I O N

            Tragically, four-year-old Jordan Centrell Woolridge drowned.  The summary judgment
evidence shows the accident occurred while Jordan, his ten-year-old sister, and her thirteen-year-old
friend were playing, unsupervised, in and about a creek on unimproved land owned by East Texas
Baptist University (ETBU) located approximately a half mile from the Woolridge home.
            Lawanda Woolridge, individually and as representative of Jordan's estate, sued ETBU over
Jordan's death.  The trial court granted ETBU's motion for summary judgment, and Woolridge
appeals.  This appeal turns on whether the creek was an attractive nuisance either because ETBU had
altered its property, thus creating a dangerous condition, or because others created a dangerous
condition on the property through off-premises development.  The summary judgment evidence
demonstrates that ETBU has not altered this property, and Texas law does not recognize a condition
as an attractive nuisance if it was created by off-premises alterations by others.  Therefore, we affirm
the summary judgment in favor of ETBU because the summary judgment evidence demonstrates the
creek was not an attractive nuisance under Texas law.
Reviewing Summary Judgments
            To prevail on a motion for summary judgment, a movant must establish that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 
Tex. R. Civ. P. 166a(c).  Summary judgment for a defendant is proper when the defendant negates
at least one element essential to each of the plaintiff's theories of recovery or pleads and conclusively
establishes each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910,
911 (Tex. 1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).  The movant has the
burden of showing that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).
            In reviewing a summary judgment, we accept all the nonmovant's summary judgment
evidence as true and indulge every reasonable inference in the nonmovant's favor.  Martinez, 941
S.W.2d at 911.  All doubts about the existence of a genuine issue of a material fact must be resolved
against the movant.  Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.
1996).
            ETBU contends that the attractive nuisance doctrine does not apply and that the trial court's
granting of ETBU's summary judgment was therefore proper.  The trial court's order granting
summary judgment does not specify the ground or grounds on which the motion was granted.  Thus,
the summary judgment will be affirmed on appeal if any of the theories advanced by the movant are
meritorious.  Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).
Premises Liability and the Attractive-Nuisance Doctrine
            The only duty a premises owner or occupier owes a trespasser is not to injure him or her
willfully, wantonly, or through gross negligence.  Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191,
193 (Tex. 1997); Restatement (Second) of Torts § 333 (1965).  However, "when children of
tender years come upon the premises by virtue of their unusual attractiveness, the legal effect is that
of an implied invitation to do so.  Such child is regarded, not as a trespasser, but as being rightfully
on the premises."  Timmons, 947 S.W.2d at 193 (citing Banker v. McLaughlin, 146 Tex. 434, 208
S.W.2d 843, 847 (1948)).
            The theory of liability under the attractive-nuisance doctrine is that, 
where the owner maintains a device or machinery on his premises of such an
unusually attractive nature as to be especially alluring to children of tender years, he
thereby impliedly invites such children to come upon his premises, and by reason of
such invitation, they are relieved from being classed as trespassers, but are in the
attitude of being rightfully on the premises.  Under such circumstances, the law
places upon the owner of such machinery or device the duty of exercising ordinary
care to keep such machinery in reasonably safe condition for their protection[.]
Banker, 208 S.W.2d at 847–48.  In Banker, the Texas Supreme Court adopted the statement of the
attractive-nuisance doctrine found in Section 339 of the Restatement, which, among other things,
requires an "artificial condition" on the land.  Banker, 208 S.W.2d at 847–48; see Restatement
(Second) of Torts § 339 (1965).
            The attractive-nuisance doctrine applies not to natural conditions, but only to things or
conditions artificially created and maintained.  Hooper v. M M Cattle Co., 278 S.W.2d 170, 172
(Tex. Civ. App.—Amarillo 1955, writ ref'd n.r.e.).  The owner is not required to fence or prevent
injury from naturally occurring things, such as lakes, rivers, trees, or creeks.  Maruska  v. Mo., K.
& T. R. Co., 10 S.W.2d 211 (Tex. Civ. App.—Austin 1928, writ ref'd).  "Although, a property owner
may know of the habit of children to visit waters upon his premises, he is as a rule under no
obligation to erect barriers or take other measures to prevent them being injured thereby."  Id. at 212;
see Dobbins v. Mo., K. & T. R. Co., 91 Tex. 60, 41 S.W. 62  (1897).
The Creek Was Not an Attractive Nuisance
            ETBU argues that the creek and the pond within it are naturally occurring conditions and that
the attractive-nuisance doctrine thus does not apply.  Woolridge argues the creek has been artificially
altered due to the construction of pavements, parking lots, drainage ditches, houses, and buildings
around the property where the accident occurred.  Yet Dan Mueller, Woolridge's engineer, stated that
"[t]he pond that is present in the creek was formed over time from the eroding of the creek bed." 
Storm water flows into the pond, and that has increased due to development in the creek's watershed
and the resulting reduction of the absorption of surface water in the watershed.   
            Woolridge's expert engineer, Robin Roberts, stated in his affidavit that "[t]he location of the
drowning is on unimproved property owned by" ETBU.  Roberts stated that the creek, not ETBU or
its predecessor in title, dug out a deep hole with steep, slippery sides.  There is no evidence that
ETBU did anything to create or modify the creek, the pool within it, or its environs.
            Hooper is on point.  In Hooper, suit was brought for the death of a nine year old who
drowned in a pool of surface water impounded by Borger Properties, Inc., when the latter, while
building a housing project, obstructed natural drainage.  Hooper, 278 S.W.2d at 171.  Borger
Properties filled in part of a canyon or ravine on its own land up to its property line with the
defendant, M M Cattle Company, creating a relative depression on M M Cattle Company's land,
which collected rainfall and drainage water in which the nine year old drowned.  Id.  The court,
holding in favor of M M Cattle Company, opined that 
[i]t was not shown there was ever a hole where the child drowned until the [sic]
Borger Properties, Inc., filled in where the natural drainage of the flood waters
escaped.  None of the defendants did anything to create the pool.  The hole or pond
was created by a dam built by Borger Properties, Inc., on its land and the dam was
maintained by it on its own property.  If the defendants could be held liable in the
present case, they would also be held liable if the fill or dam had been placed a mile
down the draw and the water caused to back up on the defendant's property.
Id. at 172.  Similarly, ETBU is not liable under the attractive-nuisance doctrine, since it does not
have control over the residential and commercial development around its property and it has not
modified the creek or its environs.  See id.  Sam Fogle, vice president of administration and finance,
who has ultimate responsibility over the real properties owned by ETBU, stated in his affidavit that
the property where the creek is located was acquired through donation in 1952, and ETBU has never
developed the property.  He further stated the property as of today has remained an undeveloped,
wooded tract of land.  Fogle also stated in his deposition that ETBU has not used the property in
question for any reason.  The record is devoid of evidence of any changes or improvement to the
property.
            Eric Wilburn, the director of ETBU's physical facilities, who directly oversees ETBU's real
property, stated in his affidavit that the property where the creek is located has never been used by
ETBU for development.  Wilburn stated that the property "remains in a raw, undeveloped, and
heavily wooded state."  Those assertions of fact are not contradicted in the evidence.
            Woolf  is also on point.  In Woolf, four-year-old Jackie Woolf drowned in a pool of water in
a creek located on property owned by Luella Carver.  Woolf v. City of Dallas, 311 S.W.2d 78 (Tex.
Civ. App.—Dallas 1958).  The trial court granted the defendant's summary judgment, and the court
of appeals affirmed the judgment.  Id.  The court of appeals reviewed numerous affidavits from the
owner of the property and the neighbors, and concluded the testimony and affidavits show without
dispute that
the waterway involved was a natural creek or stream formed as a natural part of such
stream by forces of nature and that it had existed in its present condition, size and
depth for about fifty years without change which would alter the course of the stream
or the size or depth of the pool.
Id. at 87.  Similarly, in this case, the summary judgment evidence from Mueller, Roberts, Fogle, and
Wilburn show without dispute that ETBU's creek has remained without change for over fifty years.
            ETBU has successfully negated the artificial condition requirement required by the attractive-nuisance doctrine.  Woolridge has not provided any evidence that ETBU altered the creek or its
environs and thus has not raised a genuine issue of material fact.  Because there was no attractive
nuisance, any knowledge by ETBU of the creek's dangerousness, or of children playing around the
creek, is irrelevant.  Therefore, the trial court did not err in granting ETBU summary judgment.
 
 
 
 
            We affirm the trial court's judgment.
 
                                                                                    Josh R. Morriss, III
                                                                                    Chief Justice

Date Submitted:          August 23, 2004
Date Decided:             January 12, 2005

