      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00271-CV



  Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen
 Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson, Appellants

                                                 v.

   UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides;
             William George Rivers; and Richard Duane Rivers, Appellees


     FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT
          NO. C2012-0796D, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellants Cynthia Walker, Individually and on Behalf of the Estate of Norman

Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson1

filed suit against appellees UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’

River Rides; William George Rivers; and Richard Duane Rivers for injuries sustained when the

Guadalupe River overran its banks during a flash flood in June 2010.2 The trial court granted summary

judgment in favor of appellees. We affirm the trial court’s orders granting summary judgment.


       1
         Cynthia Walker was married to Norman Walker, and Stephen Walker, Stephanie Walker
Hatton, and Jordan Walker are their children. Caren Johnson is married to Terry Johnson, Cynthia’s
brother. Cynthia, Norman, Caren, and Terry were camping together at Camp Huaco Springs when
they were caught in the flood. Norman died, while Cynthia, Terry, and Caren were injured. Caren
and Cynthia sued for their own injuries. Cynthia also sued as a representative of Norman’s estate
and, along with her children, as a wrongful death beneficiary.
       2
          UME, Inc. operates Camp Huaco Springs, WWGAF operates Rockin ‘R’ River Rides, a
river-tubing and recreation outfitter, and William and Richard Rivers own the two businesses.
                                        Factual Summary

               In June 2010, Cynthia and Norman Walker and Terry and Caren Johnson went to

Camp Huaco Springs in their RV campers for a weekend of camping and river rafting. When they

arrived at the campground, they were assigned two parking spaces. The Walkers and the Johnsons

parked their campers as directed. On Saturday, the Walkers and the Johnsons took a canoe trip on

the river and went to tour nearby caverns. When they returned to the campsite and went to bed, it

was not raining. They had not heard any weather reports and did not know heavy rain was forecast

for that night. Cynthia woke at about 6:00 a.m. to thunder and lightning. She looked out the window

and saw Terry was screaming that they had to leave. Cynthia looked down and noticed that the river

had risen to surround the two campers, causing them to begin floating. The Walkers and Johnsons

were all swept downstream in the flood. Norman died in the flood. Cynthia, Terry, and Caren were

rescued miles downstream from the campsite and all required medical attention.

               Appellants filed suit alleging negligence, premises liability, and gross negligence.

They asserted that WWGAF was liable because it was a joint enterprise with UME and that the

Rivers brothers were liable under a theory of alter ego. Appellants asserted that appellees knew that

the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the

approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have

and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn

and evacuate guests; to have an employee on site during severe weather; and to make reasonable

modifications, have emergency communications, or educate guests about severe-weather risks.




                                                 2
                UME and the Rivers brothers filed a traditional and no-evidence motion for summary

judgment, asserting that the Texas Recreational Use Statute3 limited appellants to asserting a gross-

negligence claim and that appellants could not show various elements of gross negligence; that there

was no evidence that they had a duty to warn that the campground was in a flood zone, to warn that

severe weather was approaching, or to plan and prepare for flooding; that there was no evidence they

had a duty to have and use speakers or sirens to warn guests; and that there was no evidence that

appellants’ injuries were caused by any negligence on the part of UME or the Rivers brothers. UME

and the Rivers brothers filed a separate motion for traditional and no-evidence summary judgment

addressing appellants’ theories of alter ego and joint enterprise. WWGAF filed its own motion for

summary judgment, asserting that it did not own or operate Camp Huaco, that it did not owe a duty

to the Walkers and the Johnsons, and that it was a separate entity from Camp Huaco and could not

be held liable under theories of joint enterprise or vicarious liability. The trial court signed several

orders granting appellees’ motions for summary judgment without specifying the grounds.


                                              Discussion

                The first question to be addressed, the answer to which is dispositive of this appeal,

is whether appellees owed any duty to the Walkers and the Johnsons. Even if we assume that the

recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the




       3
         See Tex. Civ. Prac. & Rem. Code § 75.002 (owner, lessee, or occupant of agricultural land
who invites another onto premises for recreation owes invitee same duty that would be owed to
trespasser and only owes duty not to injure invitee wilfully, wantonly, or through gross negligence);
see generally id. §§ 75.001-.007 (chapter 75, titled “Limitation of Landowners’ Liability”).

                                                   3
Walkers and Johnsons a duty to warn of or ensure against rising river waters. Without such a duty,

appellants’ premises-liability claims must fail.4

               When an injured invitee asserts a premises-liability claim, she must show that the

owner or occupier had actual or constructive knowledge of a condition that posed an unreasonable

risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure

proximately caused her injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). We

initially note that appellants do not assert that a condition on the premises caused the tragedy and

thus was the basis for liability. Instead, the injuries suffered by appellants were caused by a rain-

swollen river that inundated the campground, a condition that came to the premises.

               Regardless of that fact, Texas courts have consistently held as a matter of law that

naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions




       4
           Although appellants alleged both negligence and premises-defect claims, “negligent activity
encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that
caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s
failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,
776 (Tex. 2010); see Scurlock v. Pennell, 177 S.W.3d 222, 224-25 (Tex. App.—Houston [1st Dist.]
2005, no pet.) (citing Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.
1998)) (“Recovery for a negligent activity requires that a person have been injured by the activity
itself, rather than by a condition created by the activity; in contrast, recovery for premises liability
depends upon a failure to use ordinary care to reduce or to eliminate an unreasonable risk of
harm created by a premises condition about which the owner or occupier [of land] knows or, in
the exercise of ordinary care, should know.”). The claims raised by appellants clearly alleged that
appellees had failed to take various measures that would have made the campsite safe; they did
not allege “contemporaneous conduct . . . that caused the injur[ies].” See Smith, 307 S.W.3d at 776.
We therefore consider appellants’ claims under a theory of premises liability. Regardless of the
theory under which they are analyzed, appellants’ claims would fail because, as we explain below,
appellees did not owe the duty that appellants claim was breached. See General Elec. Co. v. Moritz,
257 S.W.3d 211, 217 (Tex. 2008) (“Like any other negligence action, a defendant in a premises
case is liable only to the extent it owes the plaintiff a legal duty.”).

                                                    4
posing an unreasonable risk of harm. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675-76 (Tex.

2004); see Scott & White Mem. Hosp. v. Fair, 310 S.W.3d 411, 412-14 (Tex. 2010) (“Because we

find no reason to distinguish between the mud in M.O. Dental and the ice in this case, we hold that

naturally occurring ice that accumulates without the assistance or involvement of unnatural contact

is not an unreasonably dangerous condition sufficient to support a premises liability claim.”); Wal-

Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 445 (Tex. App.—Eastland 2003, pet. denied)

(landowner “does not have a duty to protect its invitees from conditions caused by a natural

accumulation of frozen precipitation on its parking lot because such an accumulation does not

constitute an unreasonably dangerous condition”).5 The basis for those rulings is that rain, dirt, and

mud are naturally occurring conditions beyond a landowner’s control. See, e.g., M.O. Dental Lab,

139 S.W.3d at 676 (“rain is beyond the control of landowners” and “accidents involving naturally

accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”).


       5
           See also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex.
1993) (per curiam) (in premises defect case under Texas Tort Claims Act, supreme court held
that “[w]hen there is precipitation accompanied by near-freezing temperatures, . . . an icy bridge is
neither unexpected nor unusual, but rather, entirely predictable [and] is something motorists can and
should anticipate when the weather is conducive to such a condition”); Brownsville Navigation Dist.
v. Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992) (“Plain dirt which ordinarily becomes soft and muddy
when wet is not a dangerous condition of property for which a landlord may be liable.”); Lee v. K&N
Mgmt., Inc., No. 03-15-00243-CV, 2015 WL 8594163, at *3-4 (Tex. App.—Austin Dec. 11, 2015,
no pet.) (mem. op.) (plant that extended over edge of flowerbed was not unreasonably dangerous
condition; “The Texas Supreme Court has held that certain naturally occurring substances generally
do not pose an unreasonable risk of harm. . . . Under the facts of this case, the plant, like mud and
dirt, may have formed a condition that posed a risk of harm, but on this record, we cannot conclude
that it was an unreasonable risk of harm.”); City of Houston v. Cogburn, No. 01-11-00318-CV, 2014
WL 1778279, at *4 (Tex. App.—Houston [1st Dist.] May 1, 2014, no pet.) (mem. op.) (“as a matter
of law, naturally occurring conditions that are open and obvious do not create an unreasonable risk
of harm for purposes of premises liability”; tree roots over which plaintiff tripped were “open and
obvious and were a naturally occurring condition”).

                                                  5
Requiring a landowner to protect an invitee from precipitation or other acts of nature would place

an enormous burden on the landowner. See id.; see also Fair, 310 S.W.3d at 414 (requiring

landowners “to guard against wintery conditions would inflict a heavy burden because of the limited

resources landowners likely have on hand to combat occasional ice accumulations”).

               Further, an invitee is or should be “at least as aware” as the landowner of visible

conditions that have “accumulated naturally outdoors” and thus “will often be in a better position

to take immediate precautions against injury.” M.O. Dental Lab, 139 S.W.3d at 676. In other words,

as the supreme court has explained:


       When the condition is open and obvious or known to the invitee, however, the
       landowner is not in a better position to discover it. When invitees are aware of
       dangerous premises conditions—whether because the danger is obvious or because
       the landowner provided an adequate warning—the condition will, in most cases, no
       longer pose an unreasonable risk because the law presumes that invitees will take
       reasonable measures to protect themselves against known risks, which may include
       a decision not to accept the invitation to enter onto the landowner’s premises. This
       is why the Court has typically characterized the landowner’s duty as a duty to make
       safe or warn of unreasonably dangerous conditions that are not open and obvious or
       otherwise known to the invitee


Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015) (citations omitted). Texas courts have

repeatedly observed that a landowner “‘is not an insurer’” of an invitee’s safety and generally “has

no duty to warn of hazards that are open and obvious or known to the invitee.” Id. at 203-04

(quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)). Texas courts have

held in various contexts that flooding due to heavy rains is an open and obvious hazard. See, e.g.,

State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006) (“[T]he owner may assume that the recreational

user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing

                                                  6
river, or even a concealed rattlesnake. 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.”); City of Austin v. Leggett, 257 S.W.3d 456, 475 (Tex. App.—Austin

2008, pet. denied) (flooded intersection was readily apparent and presented obstacle that would be

open and obvious to ordinary motorists).

               We see no useful distinction to be drawn between ice and mud, which are natural

conditions caused by rain and freezing temperatures, and rising river waters, caused by a natural

weather event over which appellees could exercise no control. See Fair, 310 S.W.3d at 414. The

June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding

was a condition that came to the campground as the adjacent river, the same river that made the

land an attractive place to camp, rose due to heavy rains. The Walkers and the Johnsons had gone

canoeing on the river the day before the flooding occurred, and thus they were obviously aware of

the river’s proximity to their campsite. This situation is indeed a tragic one, but it is not one for

which appellees can be held to bear legal responsibility. We hold that as a matter of law appellees

had no duty to warn the Walkers and Johnsons of the possibility that the river they were camping

beside might rise in the event of heavy rain, posing a risk to the campground.6




       6
          We further note that, even if the campground had posted warnings or issued flood cautions
when the Walkers and Johnsons checked into the campsite, there is nothing in this record to indicate
that events would have turned out any differently. The Walkers and Johnsons went to bed not having
heard that heavy rains would approach and slept heavily enough that none of them woke up during
the storm or to warnings by the local sheriff’s officers, who drove through the campsite at about 4:00
a.m., blowing an airhorn and flashing their car’s lights as they announced over their PA system that
the river was rising.

                                                  7
                                           Conclusion

               Because appellees did not owe a duty to warn of or attempt to make the campground

safe against flooding of the adjacent river due to torrential rain, the trial court properly granted

summary judgment in their favor. We affirm the trial court’s orders.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: June 3, 2016




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