                                                                              ACCEPTED
                                                                          03-15-00271-CV
                                                                                  7576132
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                   10/28/2015 11:38:12 AM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                     NO. 03-15-00271-CV

                         IN THE                           FILED IN
                                                   3rd COURT OF APPEALS
                 THIRD COURT OF APPEALS                AUSTIN, TEXAS
                                                  10/28/2015 11:38:12 AM
                      AUSTIN, TEXAS
                                                     JEFFREY D. KYLE
                                                           Clerk


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’ RIVER RIDES; WILLIAM GEORGE RIVERS; and
                   RICHARD DUANE RIVERS
                        APPELLEES

  ON APPEAL FROM THE 433RD JUDICIAL DISTRICT COURT,
  COMAL COUNTY, TEXAS, HON. DIB WALDRIP, PRESIDING


                     APPELLANTS’ BRIEF
______________________________________________________________

                            Clark Richards
                            State Bar No. 90001613
                            crichards@rrsfirm.com
                            Richards Rodriguez & Skeith, LLP
                            816 Congress Ave., Suite 1200
                            Austin, Texas 78701
                            Fax (512) 476-0005
                            Tel (512) 476-1513
                            ATTORNEY FOR APPELLANT

               ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Trial Court:
433rd District Court, Comal County, Texas

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

Trial Counsel for Plaintiffs:
Mark R. Mueller                        Clark Richards
State Bar No. 14623500                 State Bar No. 90001613
Mueller Law, PLLC                      Richards, Rodriguez & Skeith, LLP
404 West 7th Street                    816 Congress Avenue, Suite 1200
Austin, Texas 78701                    Austin, Texas 78701
Tel (512) 478-1236                     Tel (512) 476-0005
Fax (512) 478-1473                     Fax (512) 476-1513
mmueller@muellerlaw.com                crichards@rrsfirm.com
mark@voodoocowboy.com

Appellate Counsel for Appellants:
Clark Richards
State Bar No. 90001613
Richards, Rodriguez & Skeith, LLP
816 Congress Avenue, Suite 1200
Austin, Texas 78701
Tel (512) 476-0005
Fax (512) 476-1513
crichards@rrsfirm.com




                                      ii
Defendant/Appellee:
WWGAF, Inc. d/b/a Rockin’ R River Rides

Trial/Appellant Counsel for Appellee:
Andres R. Gonzalez
State Bar No. 24032240
agonzalez@cbylaw.com
Karen L. Landinger
State Bar No. 00787873
klandinger@cbylaw.com
Cokinos Bosien & Young
10999 West IH-10, Suite 800
San Antonio, Texas 78230
Tel (210) 293-8700
Fax (210) 293-8733

Defendants/Appellees:
UME, Inc. d/b/a Camp Huaco Springs, Williams George Rivers and Richard
Duane Rivers

Trial/Appellant Counsel for Appellees:
Willie Ben Daw, III
State Bar No. 05594050
wbdaw@dawray.com
C. Thomas Valentine
State Bar No. 00786303
tvalentine@dawray.com
Kyle D. Giacco
State Bar No. 07839150
Kgiacco@dawray.com
5718 Westheimer, Suite 1750
Houston, Texas 77057
Tel (713) 266-3121
Fax (713) 266-3188


                                        iii
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii 
TABLE OF CONTENTS ......................................................................................... iv 
INDEX OF AUTHORITIES................................................................................... vii 
STATEMENT OF THE CASE ................................................................................ ix 
STATEMENT REGARDING ORAL ARGUMENT ...............................................x 
ISSUES PRESENTED ............................................................................................. xi 
STATEMENT OF FACTS ........................................................................................1 
SUMMARY OF ARGUMENT .................................................................................8 
ARGUMENT ...........................................................................................................10 
   I.      Standard of Review .....................................................................................10 

                    The Court should reverse because there is more than a scintilla of
                    evidence to support a question of fact for trial. ................................10 

   II.     Appellees’ Duty ..........................................................................................10 

                    Appellees had a duty because they were aware of a dangerous
                    condition that was unknown to Appellants. .....................................10 

                    Appellees had a duty to warn Appellants because they created a
                    dangerous situation. ..........................................................................12 

                    Appellees had a duty to make Camp Huaco Springs safe because
                    they controlled the conduct of its visitors.........................................13 

                    The co-owner of Camp Huaco Springs testified that he had a duty to
                    make the Walkers’ and the Johnsons’ stay as safe has he can. ........13 

   III.  Appellees’ Breach .......................................................................................14 

                    Camp Huaco Springs failed to take any action to make the premises
                    safe for its visitors. ............................................................................14 

                    Camp Huaco Springs failed to monitor weather warnings...............15 

                                                          iv
               Camp Huaco Springs provided no flood safety information. ...........16 

               Camp Huaco Springs had no onsite personnel at night. ...................16 

               The summary judgment evidence establishes that Camp Huaco
               Springs took no action to discharge its duties. .................................17 

IV.  Appellees’ Breach Caused Damages ..........................................................18 

               Appellants suffered personal injury, wrongful death, and property
               damages as a result of the failure of Camp Huaco Springs to fulfill
               its duty to them. ................................................................................18 

V.     CPRC Chapter 75 Does Not Apply ............................................................18 

               The Recreational Use Statute does not apply because the premises is
               not agricultural land. .........................................................................18 

               The insurance provisions of the Recreational Use Statute do not
               apply to commercial recreation businesses. .....................................19 

               The Texas Supreme Court recently clarified the application of the
               Recreational Use Statute. ..................................................................20 

               Camp Huaco Springs is not in its natural state nor is it removed from
               human habitation. .............................................................................22 

               Sleeping in a house trailer is not a recreational use..........................22 

VI.  Appellees’ Gross Negligence ......................................................................24 

               Even if the Recreational Use Statute applies, there is sufficient
               evidence to establish gross negligence. ............................................24 

VII.  Liability of the Rivers Brothers and WWGAF ...........................................26 

               Under the terms of the lease, the Rivers brothers and
               WWGAF/Rockin’ R are occupants of the Camp Huaco Springs
               premises. ...........................................................................................26 


                                                      v
                     WWGAF/Rockin’ R engages in business operations on the Camp
                     Huaco Springs premises. ..................................................................27 

                     There is a question of fact as to a joint enterprise between UME, Inc.
                     and WWGAF/Rockin’ R. .................................................................28 

                     The Walkers purchased a combined package from “Camp Huaco
                     Springs” that including an RV park stay and river rafting. ..............29 

   VIII.  Testimony of Comal County Sheriff Personnel ..........................................30 

                     The testimony of Deputy Cline and Sergeant Prescott do not provide
                     grounds for summary judgment. .......................................................30 

CONCLUSION ........................................................................................................31 
PRAYER ..................................................................................................................32 
CERTIFICATE OF COMPLIANCE .......................................................................34 
APPENDIX ..............................................................................................................36 




                                                            vi
                                   INDEX OF AUTHORITIES

Cases 

Boerjan v. Rodriguez,
 436 S.W.3d 307 (Tex. 2014) ................................................................................10

Chrysler Corp. v. Dallas Power & Light Co.,
 522 S.W.2d 742 (Tex. App – Eastland 1975, n.r.e.) ............................................12

City of Waco v. Kirwan,
  298 S.W.3d 618 (Tex. 2009) ......................................................................... 11, 12

County of Cameron v. Brown,
  80 S.W.3d 549 (Tex. 2002) .................................................................................27

Howard v. E. Tex. Baptist Univ.,
 122 S.W.3d 407 (Tex. App. Eastland 2003, no pet.) ...........................................20

McMillan v. Parker,
 910 S.W.2d 616 (Tex. App. – Austin 1995, writ denied) ....................................20

Merriman v. XTO Energy, Inc.,
 407 S.W.3d 244 (Tex. 2013) ................................................................................10

Shell Oil Co. v. Khan,
  138 S.W.3d 288 (Tex. 2004) ................................................................................26

State v. Schumake,
  199 S.W.3d 279 (Tex. 2006) ................................................................... 24, 25, 26

Suarez v. City of Texas City,
  465 S.W.3d 623 (Tex. 2005) ......................................................................... 11, 12

Texas DOT v. Able,
  35 S.W.3d 608 (Tex. 2000) ..................................................................................28

Univ. of Tex. at Arlington v. Williams,
 459 S.W.3d 48 (Tex. 2015) ............................................................... 20, 21, 22, 23

                                                      vii
Wilson v. Texas Parks & Wildlife Dep't,
 8 S.W.3d 634 (Tex. 1999) ....................................................................................13

Statutes 

Civil Practice & Remedies Code Chapter 75................................................... passim

Texas Transportation Code §501.002 ......................................................................23




                                                     viii
                         STATEMENT OF THE CASE


      This is a lawsuit for personal injuries, property damage, and wrongful death

arising out of a 2010 flood in Comal County. Plaintiffs filed suit in 2012. (CR 13-

25). The trial court granted summary judgment as to one defendant on March 10,

2015. (CR 2172; App. Tab 1). The trial court granted summary judgment as to the

remaining defendants on March 26, 2015. (CR 2194-2201; App. Tab 2). Plaintiffs

filed a Second Amended Petition with additional causes of action prior to the

orders granting summary judgment, therefore the summary judgment orders did

not dispose of the entire case. (CR 1847-1864). On April 21, 2015, the trial court

entered an order striking the Second Amended Petition, disposing of all remaining

claims. (CR 2259).




                                        ix
              STATEMENT REGARDING ORAL ARGUMENT

      Because there are numerous points of appeal relating to a wide range of

issues presented and the status of various parties, Appellants urge the Court to

grant oral argument to give the parties an opportunity to address any questions

raised by the briefing and the record.




                                         x
                              ISSUES PRESENTED

1)    The summary judgment evidence created a question of fact for trial on all

elements for a claim of landowner or occupant liability.

2)    Civil Practice & Remedies Code Chapter 75, referred to as the Recreational

Use Statute, does not apply to this case. (App. Tab 6).

3)    If the Recreational Use Statute does apply, the summary judgment evidence

created a question of fact for a claim of gross negligence.

4)    All of the appellees are subject to liability because UME, Inc., WWGAF,

Inc., Richard Rivers, and William Rivers are all occupants of the Camp Huaco

Springs premises.

5)    Alternatively, the summary judgment evidence established a question of fact

for a claim that WWGAF, Inc., and UME, Inc. are in a joint enterprise such that

they are both liable to the Appellants.

6)    The testimony of Comal County Sheriff Department personnel does not

establish grounds for summary judgment.




                                          xi
                            STATEMENT OF FACTS

1)    In the early morning hours of June 9, 2010, heavy rains resulted in a flash

flood on the Guadalupe River in the vicinity of New Braunfels in Comal County.

Cynthia Walker and her husband Norman Walker were sleeping in their 38 foot

“5th Wheel” RV house trailer parked in a space rented from and located in Camp

Huaco Springs on River Road adjacent to the Guadalupe River. (CR 1375-79; App.

Tab 4).   Cynthia’s brother Terry Johnson and his wife Caren Johnson were

sleeping in their RV house trailer in an adjacent space. (CR 1376; App. Tab 4).

When the Walkers and the Johnsons woke up, the flood water was already up to

the wheels of their house trailers and rising so fast that before they could exit, the

water was coming inside the trailers. (CR 1379; App. Tab 4).            During their

attempted escape, the Walkers and the Johnsons, along with their trucks and RV

house trailers, were swept downstream resulting in the death of Norman Walker

and severe personal injuries to the others. (CR 1380-84; App. Tab 4; CR 1733-35).

In this lawsuit, Cynthia Walker, Caren Johnson, and the surviving children of

Norman Walker seek personal injury, property loss, and wrongful death damages

from the parties who controlled the premises and operated the business that rented

them the RV trailer house parking spaces, which are UME, Inc. d/b/a Camp Huaco

Springs, WWGAF, Inc. d/b/a Rockin’ R River Rides, and the owners of these

entities, Richard and William Rivers. (CR 13-25, 1011-26).


                                          1
2)     Appellant Cynthia Walker is a retired Wichita Falls police sergeant who

suffers from multiple sclerosis. (CR 1373; App. Tab 4). Two years before his

death Norman Walker also retired from the Wichita Falls police department as a

detective. (CR 1373; App. Tab 4). Cynthia and Norman had acquired a two night

stay and river rafting trip at Camp Huaco Springs through a silent auction and

contacted Camp Huaco Springs through its website to schedule their stay. (CR

1375; App. Tab 4). When the Walkers and the Johnsons arrived, Camp Huaco

Springs’ personnel directed them to two assigned paved concrete RV parking

spots. (CR 1376-77; App. Tab 4; CR 2226-33).1 None of the four had ever been to

Camp Huaco Springs, therefore they were unaware that they were in a flash flood

prone area. (CR 1375-76; App. Tab 4). Camp Huaco Springs provided no safety

information and posted no warnings about the flash flood prone premises. (CR

1783-84, 1798-99). Other RV parks routinely provide written safety instructions

and have 24-hour onsite personnel in case of emergencies such as severe weather.

(CR 1389-90; App. Tab 4). In fact, when Cynthia and Norman Walker stayed at

an RV park in Kansas, the RV park had provided information on the risk of

tornados and when a tornado warning occurred, an RV park employee came to

1
  The trial court partially granted Plaintiffs’ motion to supplement the summary judgment record,
to include the exhibits to Cynthia Walker’s deposition which had not been filed with the initial
summary judgment evidence. (CR 2263). The exhibits to Cynthia Walker’s deposition are
included at CR 2226-33 (App. Tab 5) and include photos of the paved location of their trailer
homes when the flood occurred.

                                               2
their trailer to warn them. (CR 1382, 1389-90; App. Tab 4). Camp Huaco Springs

had no flood warning system, provided no safety information, posted no warnings

about the risk of flood, and had no 24-hour onsite personnel. (CR 1783-84, 1798-

99).

3)     The owners and operators of Camp Huaco Springs were aware that the

location where they instructed the Walkers and the Johnsons to park was subject to

flash flooding because there had been previous flash floods in that location which

were twice as bad as the June 2010 flood. (CR 1746, 1785). Furthermore, in the

Camp Huaco Springs lease, UME, Inc. and the Rivers brothers agreed that they

had full knowledge of the high water conditions that occur on the premises. (CR

1412). Richard Rivers, one of the owners of Camp Huaco Springs, testified that he

has a responsibility to make their stay as safe as possible. (CR 1772). Despite the

prior floods at Camp Huaco Springs, the operators never took any steps to warn

their visitors or reduce the flood risks at the premises. (CR 1747, 1749, 1783,

1799).

4)     At 10:34 AM on June 8, 2010, the National Weather Service issued a flash

flood watch for New Braunfels and Comal County. (CR 409-10). Between 11:00

AM that morning and 6:15 AM June 9, 2010, the National Weather Service issued

twelve more bulletins, including Flash Flood Watches, Advisories, and Warnings,




                                        3
for New Braunfels and Comal County. (CR 410-21).2 Randy Schumann, a Camp

Huaco Springs manager, was working in San Marcos until 3:30 AM at which point

he drove home past Camp Huaco Springs to his house upstream. (CR 1802). By

the time Schumann drove home, ten weather bulletins had been issued and steady

rain had already been falling for some time. (CR 409-21, 1802). If he had been

paying attention to the weather bulletins, he would have been aware of the flood

risk and could have easily warned the visitors at the Camp Huaco Springs.

However, Camp Huaco Springs did not have any personnel responsible for

monitoring weather alerts and he did not stop to warn any of the persons sleeping

at Camp Huaco Springs. (CR 409-21, 1800-02). Schumann did not attempt to

contact anyone about the danger of flooding until he received a phone call from his

boss Eddie Gillespie at 6 AM on June 9, 2010. (CR 1801-1802). By that time it

was too late because the bridges between his home and the camp were already

flooded and the Walkers and the Johnsons were already being swept down river.

(CR 1378-81; App. Tab 4; CR 1802). At the same time that Schumann received

the phone call from his superior, Cynthia Walker was awakened by her dog

barking and her brother screaming from the adjacent trailer. (CR 1378-79; App.

Tab 4). Within minutes, the water was coming into their trailer and they were all

swept down river along with their trucks and trailers. (CR 1378-81; App. Tab 4).

2
    Several of these bulletins warned “do not stay in flood prone areas.” (CR 416, 420).

                                                  4
5)    Camp Huaco Springs is a business operated for profit that, among other

activities, rents RV parking lots on a paved strip approximately 100 feet wide

between River Road and the bank of the Guadalupe River. (CR 1799, 2233). The

76 paved house trailer rental lots are improved with water and waste water

connections. (CR 1404, 1799, 2233). The lease for the property identifies Richard

Rivers, William Rivers, and UME, Inc. as lessees. (CR 1398). The lease also

provides that WWGAF, Inc. and Rockin’ R River Rides are permitted to operate

their business on the property. (CR 1406). The lease restricts the use of the

property to leasing for human habitation for vacation purposes and the rental of

watercraft and innertubes. (CR 1409).

6)    Brothers Richard Rivers and William Rivers are the sole shareholders and

officers of UME, Inc. which has an assumed name certificate on file for the name

“Camp Huaco Springs.” (CR 309, 479-80, 1769, 1805). UME Inc.’s summary

judgment motion admits that it is the owner of the business at Camp Huaco

Springs. (CR 309).     The Rivers brothers are also the sole shareholders and

corporate officers of WWGAF, Inc. (“WWGAF/Rockin’ R”) which has an

assumed name certificate on file for the name Rockin’ R River Rides. (CR 391,

485-86, 1769, 1805). At summary judgment, WWGAF/Rockin’ R argued that it

did not own, operate or manage the Camp Huaco Springs property because its

business is restricted to river equipment rental. (CR 309, 1198, 1204-05, 1211).


                                         5
7)    WWGAF/Rockin’ R maintains a river equipment rental operation on the site

of Camp Huaco Springs. (CR 1693, 1806).        WWGAF/Rockin’ R’s insurance

policy identifies 4881 River Road, which is the address of Camp Huaco Springs, as

a premises that WWGAF/Rockin’ R owns, rents or occupies. (CR 1604, 1772).

The WWGAF/Rocking’ R policy also states that “campground” is one of its

insured activities. (CR 1639). WWGAF/Rockin’ R is also listed as an additional

insured under the UME, Inc. insurance policy for Camp Huaco Springs. (CR

1535). Eddie Gillespie, the General Manager of Camp Huaco Springs, testified

that Camp Huaco Springs is owned by Rockin R’ and that Rockin R’ is owned by

the Rivers Brothers. (CR 1784). Randy Schumann, a manager at Camp Huaco

Springs, testified that Camp Huaco Springs is a division of Rockin’ R. (CR 1804).

The police report regarding Norman Walker’s death identified WWGAF/Rockin’

R as the location of the Walker’s RV at the time of the flood. (CR 1734). UME,

Inc. and WWGAF/Rockin’ R share corporate offices, personnel, and office

equipment. (CR 1787).     UME, Inc. and WWGAF/Rockin’ R also engage in

combined marketing and advertisement through the Camp Huaco Springs’ website

and social media – the “About Us” page of the Camp Huaco Springs’ website

identifies WWGAF, Inc. as the entity in charge of Camp Huaco Springs and

contains no mention of UME, Inc. (CR 1692-1701).         To the extent that any

corporate meetings for either entity take place, they occur when one brother


                                       6
wanders into the other brother’s office without any corporate formalities or

corporate records. (CR 1747, 1751).

8)    Appellees’ summary judgment arguments relied on the testimony of two

Comal County Sheriff’s personnel who testified that they drove through the Camp

Huaco Springs premises during the night and warned people about the risk of

potential flood through their car loudspeakers. (CR 394-99, 460-65, 1422-40). The

summary judgment record includes an affidavit from Thomas Eaves, who was

present at Camp Huaco Springs during the flood and disputed the testimony of the

sheriff’s personnel stating that he never heard nor saw any law enforcement

personnel there. (CR 867-68). Cynthia Walker also did not hear or see any law

enforcement announcement during the night because she slept through the night

without waking until 6 AM. (CR 1378-79; App. Tab 4).




                                       7
                          SUMMARY OF ARGUMENT

1)    Appellees knew of a dangerous condition and created a dangerous situation

at Camp Huaco Springs that resulted in the death of Norman Walker and severe

injuries to Cynthia Walker and Caren Johnson, therefore there is a question of fact

for trial for all elements of a claim for landowner or occupant liability.

2)    The Recreational Use Statute does not apply in this case because:

      a. The Camp Huaco Springs premises is not agricultural land.

      b. The statute does not apply to commercial for profit businesses.

      c. The Camp Huaco Springs premises is not land in its natural state

          removed from human habitation.

      d. The Walkers and the Johnsons were not engaged in a recreational use at

          the time of the flood.

      e. The Recreational Use Statute should be strictly construed against the

          derogation of Appellants’ common law rights.

3)    Alternatively, if the Recreational Use Statute applies, the evidence creates a

question of fact for trial for a claim of gross negligence because Appellees acted

with subjective awareness of an extreme degree of risk, indicating conscious

indifference to the rights, safety, or welfare of the Walkers and the Johnsons.

4)    Based on the terms of the lease and other summary judgment evidence,

UME, Inc., WWGAF/Rockin’ R, and the Rivers brothers are all occupants of the


                                           8
Camp Huaco Springs premises therefore all of them are subject to landowner or

occupant liability in this case.

5)    Camp Huaco Springs is a joint enterprise between UME, Inc. and

WWGAF/Rockin’ R because there is an express or implied agreement for the

common purpose with a community of pecuniary interest and an equal right to

control the premises, therefore both entities are subject to liability.

6)    The testimony of Comal County Sheriff personnel regarding warnings made

during the night does not establish any basis for summary judgment because it is

only relevant to the affirmative defense of comparative fault or contributory

negligence.




                                           9
                                        ARGUMENT

    I.   Standard of Review

               The Court should reverse because there is more than a scintilla of
               evidence to support a question of fact for trial.
1)       This is an appeal from a summary judgment, therefore the Court must

consider all the evidence in the light most favorable to Appellants, crediting all

evidence favorable to Appellants and disregarding contrary evidence. Boerjan v.

Rodriguez, 436 S.W.3d 307, 311-12 (Tex. 2014).                      Appellees brought both

traditional and no-evidence motions for summary judgment and the Court granted

summary judgment without specifying the grounds. (CR 2172, 2194-2201; App.

Tabs 1-2). The Court should reverse and remand for trial if there is more than a

scintilla of evidence supporting each element of Appellants’ claims. Merriman v.

XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). The summary judgment

record contains ample evidence to support each element of Appellants’ claim,

therefore the Court should reverse and remand for trial.

II.      Appellees’ Duty

               Appellees3 had a duty because they were aware of a dangerous
               condition that was unknown to Appellants.


3
  There is a dispute as to just who is responsible for the obligations of Camp Huaco Springs.
Appellees contend that only UME, Inc. is responsible for Camp Huaco Springs and that the other
Appellees have no liability for any act or omission at the premises. This dispute is the subject of
a subsequent section of this brief. For this section, Appellants will use “Camp Huaco Springs” to
refer generally to Appellees.

                                                10
2)    When a landowner knows of a hidden and dangerous condition such that a

reasonable user would not expect to encounter it on the property, the foreseeability

and likelihood of the risk of harm can outweigh the burden of imposing a duty of

care on the landowner. City of Waco v. Kirwan, 298 S.W.3d 618, 626 (Tex. 2009);

Suarez v. City of Texas City, 465 S.W.3d 623, 633 (Tex. 2005). The summary

judgment evidence establishes that there was a dangerous condition at Camp

Huaco Springs because it was susceptible to flash flooding. (CR 1746-49, 1771-72,

1785).    Richard and William Rivers, the owners of UME, Inc. and

WWGAF/Rockin’ R, both testified that they knew there had been previous floods

in 1998 and 2002. (CR 1746-49, 1771-72). Eddie Gillespie, the general manager

of Camp Huaco Springs, testified that he knew that the 1998 and 2002 floods had

been twice as bad as the 2010 flood. (CR 1785). The Walkers and the Johnsons

had never been to Camp Huaco Springs before. (CR 1375-76; App. Tab 4). Camp

Huaco Springs did not provide any safety information or post any warnings about

the risk of flash floods on the premises. (CR 1783-84, 1798-99). Accordingly, the

Walkers and the Johnsons had no reason to expect that the premises were subject

to flash floods. The flash flooding at Camp Huaco Springs poses an extremely

high risk of harm because it washes away trucks, RV house trailers, trees, and

people, resulting in severe injuries and death with little or no warning. (CR 1378-

81; App. Tab 4). Because Appellees knew there was a risk of flash flooding


                                        11
posing an extreme risk of injury and death to unsuspecting visitors like the Walkers

and the Johnsons, the summary judgment evidence establishes a duty of care under

Kirwan, 298 S.W.3d at 626 and Suarez, 465 S.W.3d at 633.

             Appellees had a duty to warn Appellants because they created a
             dangerous situation.
3)    “Texas law does recognize a duty to warn on the part of the person who

creates a dangerous situation.” Chrysler Corp. v. Dallas Power & Light Co., 522

S.W.2d 742, 744 (Tex. App – Eastland 1975, n.r.e.) (Defendant created dangerous

flood conditions and therefore had a duty to warn.) Camp Huaco Springs created a

dangerous condition by directing the Walkers and the Johnsons to park and sleep in

a location prone to life-threatening flash floods. The summary judgment evidence

establishes that Camp Huaco Springs created paved and improved lots in a flash

flood prone location. (CR 1376-77; App. Tab 4; CR 2226-33). The Walkers and

the Johnsons did not choose the location where they parked and slept, because

these locations were assigned to them by Camp Huaco Springs’ personnel, who

directed them to park there. (CR 1376; App. Tab 4). This created a dangerous

situation because the location is prone to flash flooding with little or no notice such

that sleeping individuals can be swept away by flood waters resulting in severe

injuries and death. (CR 1378-81; App. Tab 4).          Because Appellees created a

dangerous situation, they had a duty to warn Appellants under Chrysler Corp., 522

S.W.2d at 744.

                                          12
            Appellees had a duty to make Camp Huaco Springs safe because
            they controlled the conduct of its visitors.
4)    A party that controls the visitors to a premises owes a duty to the visitors.

Wilson v. Texas Parks & Wildlife Dep't, 8 S.W.3d 634, 635-36 (Tex. 1999). Camp

Huaco Springs directed the Walkers and the Johnsons to park and sleep in specific

paved and improved lots in a dangerous flash flood zone. (CR 1376-77; App. Tab

4; CR 2226-33). The situation might be different if Camp Huaco Springs merely

charged admission to an open and unimproved tract of land and allowed visitors to

select their sleeping locations at their own risk. Under those circumstances, Camp

Huaco Springs might reasonably argue that it exercised no control over its visitors.

But the operators of Camp Huaco Springs decided to create a paved and improved

premises and control the sleeping locations of its visitors. Because Appellees

exercised control over the Walkers and the Johnsons and directed them to park and

sleep in a dangerous flash flood prone location, Appellees owed them a duty under

Wilson, 8 S.W.3d at 635-36.

            The co-owner of Camp Huaco Springs testified that he had a duty
            to make the Walkers’ and the Johnsons’ stay as safe has he can.
5)    At his deposition, Richard Rivers testified:

      Q.    “[D]o you agree [you] owe responsibilities to the campers that

      you have at the Camp Huaco Springs to make their stay – stay there as

      reasonable and safe as you can?


                                         13
       …


       A. Yes.

 This by itself establishes that Camp Huaco Springs owed the Walkers and the

 Johnsons a duty to make their stay safe. Accordingly, there is no dispute that

 Appellees owed a duty of care to the Walkers and the Johnsons when they stayed

 at Camp Huaco Springs.

III.   Appellees’ Breach
             Camp Huaco Springs failed to take any action to make the
             premises safe for its visitors.
 6)    Richard Rivers, William Rivers, Eddie Gillespie, and Randy Schumann all

 testified that they were aware of the history of dangerous flooding at the Camp

 Huaco Springs premises. (CR 1746-49, 1771-72, 1785, 1798). These witnesses

 also uniformly testified that no actions of any kind were taken to improve the

 safety of the Camp Huaco Springs premises. (CR 1747, 1749, 1769, 1772, 1783,

 1799).    Following the 2002 flood, Camp Huaco Springs engaged in major

 improvements by installing sewer lines and improving the RV trailer house lots.

 (CR 1798-99). However, there was no effort to increase the grade of the RV trailer

 house parking to protect visitors against flood waters. (CR 1799). Furthermore,

 there was no attempt to install any flood water gauge, monitor, or warning device




                                        14
to protect the visitors to Camp Huaco Springs. (CR 1800).4 Other RV trailer house

parks with tornado risks maintain a tornado warning siren, indicating that a

reasonable park operator would install such equipment when there is a risk of

dangerous weather. (CR 1382, 1389-90; App. Tab 4). Accordingly, the summary

judgment evidence shows that Camp Huaco Springs took no actions to fulfill the

duty to make the premises safe for visitors sleeping unaware in a flash flood prone

location.

                 Camp Huaco Springs failed to monitor weather warnings.
7)       Starting at 10:30 AM the day before Norman Walker’s death, the National

Weather Service issued 13 flash flood bulletins for New Braunfels and Comal

Counties. (CR 409-21). Camp Huaco Springs had no personnel responsible for

monitoring such weather bulletins, therefore nobody at Camp Huaco Springs was

aware of the multiple flash flood bulletins. (CR 1800). Because Camp Huaco

Springs is in a flash flood prone location that has been subject to previous flash

floods, the minimal effort required to monitor such bulletins and notify visitors

would be a reasonable precaution.5 Failure to monitor weather bulletins is another




4
    A flood monitor system was installed after the 2010 flood. (CR 1800).
5
  A number of websites and applications (such as https://alert.accuweather.com/accualert/index)
provide location based weather service bulletin alerts that do not require active monitoring, but
rather provide email or text notifications of weather bulletins for requested locations.

                                                15
example of how Camp Huaco Springs failed to discharge its duty regarding the

safety of its visitors.

              Camp Huaco Springs provided no flood safety information.
8)     Camp Huaco Springs did not provide the Walkers or the Johnsons, or any

other visitors, any information regarding the flood risk on the premises when they

arrived. (CR 1376; App. Tab 4; CR 1798). Camp Huaco Springs did not post any

warnings on the premises notifying visitors of the risk of flash flooding. (CR 1783-

84, 1800). All other RV trailer home parks visited by the Walkers provided

written instructions regarding weather or other hazards of the location, indicating

that the standard of care includes this relatively minimal effort to provide visitors

with warning. (CR 1389-90; App. Tab 4). Posting written notices and handing out

safety information regarding flood risks is a relatively low burden given the

extreme risk of harm posed by flash flooding, but Camp Huaco Springs made

absolutely no effort to discharge its duty to provide a warning regarding the

hazards of flash flooding on the premises.

              Camp Huaco Springs had no onsite personnel at night.
9)     Camp Huaco Springs did not maintain 24-hour onsite personnel at the

premises. (CR 1783, 1799). All other RV trailer home parks visited by the Walkers

had 24-hour onsite personnel, and in the instance of a tornado warning, the onsite

personnel came and knocked on their door to alert them. (CR 1382, 1389-90; App.

Tab 4). If Camp Huaco Springs had maintained overnight personnel like other RV
                                         16
trailer house parks, such personnel could have knocked on the door of the Walkers’

and the Johnsons’ house trailers and made sure that they were awake and aware of

the flood risk. Because Camp Huaco Springs did not maintain such personnel, no

such warning was provided, resulting in the death of Norman Walker and severe

injuries to Cynthia Walker and Caren Johnson.

            The summary judgment evidence establishes that Camp Huaco
            Springs took no action to discharge its duties.
10)   As established above, the summary judgment evidence establishes that

Camp Huaco Springs had a duty to make the premises safe and to warn the

Walkers and the Johnsons.      The summary judgment evidence establishes that

Camp Huaco Springs took no action of any kind to make the premises safe, to

monitor applicable weather bulletins, to install any flood monitoring system, to

provide any notices or warnings, or to provide onsite personnel.        Other park

operators install warning equipment, provide written notices of hazardous

conditions, and provide 24-hour personnel who provide warnings of dangerous

weather, indicating that such measures are within the realm of reasonable

precautions. Because Camp Huaco Springs failed to do anything to fulfill its duty

to provide a safe premises and warn visitors of the flood hazard, there is more than

a scintilla of evidence from which the jury could conclude that Appellees breached

their duty to the Walkers and the Johnsons.



                                        17
IV.   Appellees’ Breach Caused Damages

            Appellants suffered personal injury, wrongful death, and
            property damages as a result of the failure of Camp Huaco
            Springs to fulfill its duty to them.
11)   Camp Huaco Springs failed to make its premises safe or warn the Walkers

and the Johnsons of the flood hazard and Norman Walker died as a result. (CR

1380-84; App. Tab 4; CR 1733-35). Cynthia Walker and Norman’s children,

Stephen, Jordan and Stephanie, suffered wrongful death damages as a result. (CR

1464-67). Caren Johnson and Cynthia Walker were swept down the river in the

flood suffering severe personal injuries and property loss. (CR 1380-87; App. Tab

4). Therefore, the summary judgment evidence establishes more than a scintilla of

evidence of duty, breach, and damages suffered by the Appellants and the Court

should reverse and remand for trial.

V.    CPRC Chapter 75 Does Not Apply

            The Recreational Use Statute does not apply because the premises
            is not agricultural land.
12)   Appellees contend that Civil Practice & Remedies Code Chapter 75 applies

to this lawsuit claiming that Camp Huaco Springs is agricultural land suitable for

cattle grazing. The photographs of the location demonstrate that Camp Huaco

Springs is a narrow strip of land between River Road and the Guadalupe River that

is virtually all paved with concrete. (CR 2226-33; App. Tab 5). The testimony

establishes that Camp Huaco Springs is a paved RV trailer house park improved

                                       18
with water and wastewater plumbing for the RV parking spaces. (CR 1376; App.

Tab 4; CR 1799). There is no pasture between the road and the river in this

location. Furthermore, cattle grazing on this property is prohibited by Appellees’

lease, which expressly limits the use of the property “for the rental of the existing

cabins or additional structures placed thereon by Lessee for the purposes of human

habitation for vacation purposes only, and for the rental of water craft of every

description and innertubes. … The premises may not be used for any other

business endeavors.” (CR 1409) (emphasis added). Not only is the property not

physically suitable for agricultural use, agricultural use is prohibited by the lease.

Accordingly, the property is not agricultural land for the purposes of Civil Practice

& Remedies Code Chapter 75.

             The insurance provisions of the Recreational Use Statute do not
             apply to commercial recreation businesses.
13)    Appellees argue that they are protected by Civil Practice & Remedies Code

§75.003(c)(3) because they maintain liability insurance in accordance with

§75.004(a). However, §75.004(a) is expressly limited to agricultural land: “[T]he

liability of an owner, lessee, or occupant of agricultural land used for recreational

purposes…” (emphasis added). As demonstrated above, Camp Huaco Springs is

not agricultural land.   Furthermore, the statute does not apply to commercial

operations. “[T]he purpose of [§75.003(c)] was to expressly prevent landowners

who specialize in commercial recreation from wrongfully taking advantage of the

                                         19
statute.” McMillan v. Parker, 910 S.W.2d 616, 619 (Tex. App. – Austin 1995, writ

denied) (emphasis added); Howard v. E. Tex. Baptist Univ., 122 S.W.3d 407, 411

(Tex. App. Eastland 2003, no pet.) It is undisputed that Appellees operate a

commercial recreation business:

      Q:   Okay. Now at all times when you were working at Camp
      Huaco Springs, did – was there a – was this this operated as a
      commercial business?


      A.    As in opposed to a state facility or – I’m not understanding
            what you’re –


      Q:    Okay. No. I mean, the – the Camp Huaco Springs was a – was a
      business in – providing services in exchange for money for profit?

      A:    Yes.

      (CR 1799)

It is undisputed that Appellees specialize in commercial recreation, therefore the

Recreational Use Statute does not apply.

            The Texas Supreme Court recently clarified the application of the
            Recreational Use Statute.
14)   On March 20, 2015, after the first interlocutory summary judgment order

and six days before the second interlocutory summary judgment order, the

Supreme Court issued a decision under the Recreational Use Statute in Univ. of

Tex. at Arlington v. Williams, 459 S.W.3d 48 (Tex. 2015). In that case, the

plaintiff was at a high school soccer match at UT Arlington stadium and was


                                       20
injured due to a fall caused by a faulty gate latch. The Court extensively analyzed

the recreational use statute and held that it did not apply to insulate UT Arlington

from liability. Justice Devine’s plurality opinion concluded that the statute did not

apply to spectating in a soccer stadium because it was not intended to apply to

improved property, but rather to property made available in its natural state, as

“part of the physical world that is removed from human habitation.” Id. at 43-55.

Justice Guzman, joined by Justice Willett, concurred and held that application of

the statute “turns entirely on the precise activity the plaintiff was engaged in when

the injury occurs.” Id. at 58. Because the plaintiff was no longer watching the

game, but instead was leaning against the gate waiting to sign a release document

so she could take her daughter home, Justice Guzman concluded that the statute

could not apply because that precise activity could not constitute recreational use.

Id. Justice Boyd concurred, stating “[b]ecause the statute deprives invitees of their

common law right to recover for injuries caused by a landowner's negligence, and

instead permits them to recover only upon proof of gross negligence, malicious

intent, or bad faith, see Tex. Civ. Prac. & Rem. Code § 75.002(d), we must strictly

construe it and apply it only to cases that are "clearly within its purview.” Id. at 62.

Because the plaintiff’s activity did not clearly fall within the application of the

statute, the statute did not apply. Id. Camp Huaco Springs is improved for the

purposes of human habitation. Sleeping in a house trailer is a residential, not


                                          21
recreational, use. Because the statute must be strictly construed as a deprivation of

common law rights, the Recreational Use Statute should not apply to this case.

             Camp Huaco Springs is not in its natural state nor is it removed
             from human habitation.
15)   The summary judgment evidence shows that Camp Huaco Springs is a fully

paved premises with water and waste water connections for 76 residential house

trailers (CR 1376; App. Tab 4; CR 1799, 2226-33; App. Tab 5). Clearly this

property is not in its “natural state” nor is it “removed from human habitation”

because the entire purpose of this property is for human habitation.             The

Defendants’ lease even restricts the use of the property to commercial use for

“human habitation for vacation purposes.” (CR 1409). Because the Supreme Court

has concluded in Williams that the statute only applies to property in its “natural

state” “removed from human habitation,” Camp Huaco Springs is not subject to the

Recreational Use Statute.

             Sleeping in a house trailer is not a recreational use.
16)   At the motion for new trial, Appellees argued that Williams was inapplicable

because the activity in that case was argued to fall within the “other activity

associated with enjoying nature” provision of §75.001(3)(L) and that the Walkers

and the Johnsons were engaged in “camping.” The Johnson’s vehicle was a 38-

foot fifth wheel trailer with a master bedroom, bathroom, shower, kitchen, two

televisions, and a satellite TV antenna. (CR 1375; App. Tab 4). This residential

                                         22
structure, defined as a “House trailer” by Texas Transportation Code §501.002(9),

is larger and more luxurious than many immobile residential premises, such as

hotels, dormitories, and efficiency apartments.     Many people use such house

trailers as permanent residences, such as the occupants of the Pecan Grove RV

Park at 1518 Barton Springs Road in Austin, where most of the lots are occupied

by permanent residents. As discussed by Justice Guzman in Williams, the focus is

on the precise activity Appellants were engaged in at the time of the injury.

Furthermore, as discussed by Justice Boyd, the statute must be strictly construed as

a derogation of common law rights of invitees. At the very least, this creates a

question of fact for the jury as to whether or not the Walkers and the Johnsons

were “camping” as contemplated by the statute and therefore subject to a

heightened standard of care.

17)   Furthermore, Appellees’ argument goes too far because limiting Williams to

the “other activity” provision of §75.001(3)(L) would mean that students in

sleeping bags inside a school stadium are engaged in “camping” and subject to the

recreational use statute regardless of the fact that the stadium is not land in its

natural state removed from human habitation. The Recreational Use Statute does

not apply to this case because the Camp Huaco Springs RV trailer house park is

not agricultural land and it is not in its natural state removed from human

habitation. However, even if Camp Huaco Springs is subject to the statute, the


                                        23
Court should reverse and remand because sleeping in a house trailer is not a

recreational use to which the statute applies.

VI.   Appellees’ Gross Negligence

             Even if the Recreational Use Statute applies, there is sufficient
             evidence to establish gross negligence.
18)   As discussed above, the Recreational Use Statute does not apply to this case

because this is not agricultural land, the statute does not apply to commercial

recreation businesses, this premises is not in its natural state and removed from

human habitation, and sleeping in a house trailer is not a recreational use.

However, should the Court conclude that the statute applies, there is more than

sufficient evidence to create a question of fact for gross negligence. “Because

gross negligence may result from acts or omissions, and section 75.002(d) does not

distinguish between injuries caused by conditions and activities, we conclude that

section 75.002(d) permits a premises defect claim for gross negligence.” State v.

Schumake, 199 S.W.3d 279, 287 (Tex. 2006). Gross negligence is “an act or

omission involving subjective awareness of an extreme degree of risk, indicating

conscious indifference to the rights, safety, or welfare of others.” Id.     “[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.” Id. at 288. “If a landowner has knowledge of an

uncommon, hidden peril or danger on the land that is not inherent in the use to

                                          24
which the land is 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.

19)   In Schumake, a child drowned in a culvert due to a dangerous undertow at a

state park. The Texas Parks Department was aware of the undertow because others

had been caught in it and reported it. Id. at 281. The Texas Supreme Court

concluded that because the State, as operator of the premises, was aware of the

hidden danger and did not warn the plaintiffs, there was sufficient evidence to

establish a claim for gross negligence. Id. at 288. The evidence in this case is very

similar. Appellees were aware that the location of this lot was subject to extreme

flooding but nevertheless elected to construct RV trailer house rental lots in the

flash flood zone. (CR 1785, 1798-1800). The Walkers and the Johnsons did not

know they were in a flash flood prone area, because they had never been to this

location before. (CR 1375-76; App. Tab 4).      Therefore, the Appellees created a

dangerous condition that included a hidden danger of flooding of which the

Walkers and the Johnsons were unaware. The extreme danger of flooding while

visitors sleep in this location is clear – the rising water can sweep them away

resulting in injury and death, which is what happened to the Walkers and the

Johnsons. Therefore, the Appellees were subjectively aware of an extreme degree

of risk and were consciously indifferent to the safety of the Walkers and the


                                         25
 Johnsons in failing to make the premises safe or warn them of the danger. Under

 the holding of the Texas Supreme Court in Schumake, this is sufficient evidence

 for a trial on a claim of gross negligence. Therefore, even if the recreational use

 statute applies, the Court should deny summary judgment and proceed to trial on a

 claim of gross negligence.

VII.    Liability of the Rivers Brothers and WWGAF

             Under the terms of the lease, the Rivers brothers and
             WWGAF/Rockin’ R are occupants of the Camp Huaco Springs
             premises.
 20)    UME, Inc. has an assumed name certificate on file for the name “Camp

 Huaco Springs” and admits in its summary judgment motion that it is the owner of

 Camp    Huaco    Springs.    (CR   309,    479-80).   The   Rivers   brothers   and

 WWGAF/Rockin’ R contend that they are not liable because only UME, Inc. is

 responsible for the Camp Huaco Springs premises. The terms of the lease for

 Camp Huaco Springs state that Richard and William Rivers are lessees who have

 “quiet enjoyment and possession of the premises.” (CR 1398-99). Furthermore,

 the lease provides that WWGAF/Rockin’ R is permitted to operate its business on

 the premises. (CR 1406). The right of control of a premises can be shown by the

 terms of a lease contract. Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004).

 Accordingly, the terms of the lease itself provide more than a scintilla of evidence




                                           26
from which the jury could conclude that William Rivers, Richard Rivers, and

WWGAF/Rockin’ R are also responsible for the Camp Huaco Springs premises.

            WWGAF/Rockin’ R engages in business operations on the Camp
            Huaco Springs premises.
21)   Consistent with the terms of the lease, WWGAF/Rockin’ R does operate a

rental business on the Camp Huaco Springs premises. (CR 1693, 1806).

Furthermore, WWGAF/Rockin’ R admits that it “owns, rents or occupies” the

Camp Huaco Springs premises in its insurance policy because one of its insured

locations is 4881 River Road, which is the address of Camp Huaco Springs. (CR

1604, 1772).   The policy also admits that WWGAF/Rockin’ R is one of the

operators of Camp Huaco Springs because “campground” is one of its insured

activities. (CR 1639). Finally, WWGAF/Rockin’ R is an additional insured under

the UME, Inc. policy, which covers Camp Huaco Springs. (CR 1535). A party that

occupies or controls a premises is subject to premises liability. County of Cameron

v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). Because WWGAF/Rockin’ R engages

in actual business operations on the Camp Huaco Springs premises, there is more

than a scintilla of evidence from which the jury can conclude that

WWGAF/Rockin’ R occupies or controls the premises and is subject to liability for

the death and injuries of the Walkers and the Johnsons.




                                        27
            There is a question of fact as to a joint enterprise between UME,
            Inc. and WWGAF/Rockin’ R.
22)   In addition to being liable as an occupant in control of the premises,

WWGAF/Rockin’ R can also be held vicariously liable based on its joint enterprise

with UME, Inc. Texas DOT v. Able, 35 S.W.3d 608, 613 (Tex. 2000). The

summary judgment evidence demonstrates there is an express or implied

agreement for a common business purpose and an equal right to control the

enterprise. Id. Both UME, Inc. and WWGAF/Rockin’ R operate businesses on the

Camp Huaco Springs premises. (CR 309, 1693, 1806). The managers of Camp

Huaco Springs cannot even distinguish UME, Inc. from WWGAF/Rockin’ R

because Eddie Gillespie, the general manager who has worked for the Rivers

brothers since 1992, testified that Camp Huaco Springs is owned by Rockin R’ and

Rockin R’ is owned by the Rivers Brothers. (CR 1783-84). Randy Schumann, a

Camp Huaco Springs manager, testified that Camp Huaco Springs is a division of

Rockin’ R. (CR 1804). UME, Inc. and WWGAF/Rockin’ R are both owned by the

Rivers brothers and share corporate offices, personnel, and office equipment. (CR

1787).   Furthermore, the supposedly separate companies engage in combined

marketing and advertisement through the Camp Huaco Springs’ website and social

media. (CR 1692-1701). The “About Us” page of the Camp Huaco Springs’

website identifies WWGAF, Inc. as the entity that runs Camp Huaco Springs and

contains no mention of UME, Inc. (CR 1692). Furthermore, the Camp Huaco

                                       28
Springs’ website says: “Our second largest river equipment rental unit is located

right at the end of the campground” which admits that the river equipment rental

and Camp Huaco Springs are a single business, not separate businesses. (CR

1693). To the extent that any corporate meetings take place, they occur when one

brother wanders into the other brother’s office without any corporate formalities or

corporate records. (CR 1747, 1751). This evidence establishes that both entities

are integrally involved in the operation and control of Camp Huaco Springs, which

is more than a scintilla of evidence for a jury trial on joint enterprise liability for

WWGAF/Rockin’ R.

             The Walkers purchased a combined package from “Camp Huaco
             Springs” that including an RV park stay and river rafting.
23)   When the Walkers obtained their vacation package through a silent auction,

it was for two nights at the RV park and river rafting, but the package directed

Cynthia Walker only to the website for Camp Huaco Springs. (CR 1375; App. Tab

4).   The Rivers brothers claim that UME, Inc. operates the RV park,

WWGAF/Rockin’ R operates all river rental business, and they maintain complete

separation between the two entities. (CR 1770). However, the package sold to

Cynthia Walker demonstrates that there is no such separation because “Camp

Huaco Springs” sold her a package that included two nights in the RV park and

river rafting services, both by Camp Huaco Springs from the same premises. This

shows that there is a joint enterprise for both entities to share business and the

                                          29
  Camp Huaco Springs premises for the mutual benefit of both UME, Inc. and

  WWGAF/Rockin’ R, all for the ultimate benefit of the Rivers brothers.

  Accordingly, the summary judgment evidence includes more than a scintilla of

  evidence of a joint enterprise such that both UME, Inc. and WWGAF/Rockin’ R

  may be held liable for the death and injuries to the Walkers and the Johnsons.

VIII.   Testimony of Comal County Sheriff Personnel

              The testimony of Deputy Cline and Sergeant Prescott do not
              provide grounds for summary judgment.
  24)   Appellees have submitted the depositions of Comal Sheriff Deputy Cline

  and Sergeant Prescott who testified that they drove through the premises during the

  night of the flood to warn the visitors. (CR 460-65, 1422-41). This testimony is

  disputed by the affidavit of Thomas Eaves, who states that he was present at Camp

  Huaco Springs that night and never saw or heard any law enforcement personnel

  make any announcement or warning. (CR 867-68). Accordingly, to the extent that

  the actions of Prescott and Cline are relevant, there is a question of fact for jury

  trial with regard to whether or not Prescott and Cline did drive through the

  premises. However, even if it was undisputed that they drove through as they

  testified, such evidence would not be grounds for summary judgment. Prescott and

  Cline are not employees of Appellees and their actions do not constitute actions in

  discharge of the duties of Appellees. Appellees have not articulated why the

  actions of Prescott and Cline would be relevant in this case, however the only

                                          30
possible relevance would be to argue that the negligence or gross negligence of

Appellees was not the cause in fact of the Walkers’ and the Johnsons’ injuries.

Assuming that Appellees articulate the only possible relevance of this evidence,

the argument would have to be that Appellees’ negligence did not cause the

Walkers and Johnsons to be swept away by the flood because they failed to

respond to the disputed warning claimed by Prescott and Cline. While this might

be admissible to support a claim of comparative fault and contributory negligence,

at most this is some evidence for jury consideration of an affirmative defense and

cannot provide the basis for Appellees to prove as a matter of law that they were

not grossly negligent or that their negligence did not cause the death and injuries

suffered by the Walkers and the Johnsons.

                                   CONCLUSION

25)   The summary judgment record contains more than a scintilla of evidence

that Appellees owed a duty to the Walkers and the Johnsons because they knew

that they were directing the Walkers and the Johnsons to park and sleep in a flash

flood prone location of which the Walkers and the Johnsons were unaware. The

summary judgment record demonstrates that Appellees did absolutely nothing to

warn the Walkers and the Johnsons and did nothing to make the premises safe

from the known danger of flash flooding, therefore there is a question of fact for

trial on Appellees’ failure to fulfill their duty to the Walkers and the Johnsons. It is


                                          31
undisputed that the Walkers and the Johnsons suffered severe injuries, death, and

property loss as a result. Because the premises is paved and improved, it is not

agricultural land nor is it in its natural state, therefore the Recreational Use Statute

does not apply.      However, even if it did, the summary judgment record

demonstrates that Appellees knew that the premises had an extremely dangerous

risk of flash flooding and took no action to warn or protect the Walkers and the

Johnsons from this known, and extremely hazardous, situation. Therefore, there is

more than a scintilla of evidence from which the jury could conclude that

Appellees are liable for gross negligence. Finally, there is more than a scintilla of

evidence from which the jury could conclude that Richard Rivers, William Rivers,

and WWGAF/Rockin’ R controlled and occupied the premises, and alternatively

that UME, Inc. and WWGAF/Rockin’ R were engaged in a joint enterprise,

therefore all of the Appellees can be held liable for the injuries and death suffered

by the Walkers and the Johnsons.           Because the summary judgment record

establishes a question of fact for each of Appellants’ claims against all of the

Appellees, the Court should reverse and remand for trial.


                                      PRAYER

      Appellants request that the Court reverse the trial court’s grant of summary

judgment as to all Appellants and remand this case for trial.



                                          32
Respectfully submitted,




_______________________
Clark Richards
State Bar No. 90001613
crichards@rrsfirm.com
Richards Rodriguez & Skeith, LLP
816 Congress Ave., Suite 1200
Austin, Texas 78701
Fax (512) 476-0005
Tel (512) 476-1513
ATTORNEY FOR APPELLANTS
CYNTHIA WALKER, Individually and
on Behalf of the ESTATE OF NORMAN
WALKER; STEPHEN WALKER;
STEPHANIE WALKER HATTON;
JORDAN WALKER; and CARRIE ANN
JOHNSON




 33
                     CERTIFICATE OF COMPLIANCE

       In compliance with Tex. R. Civ. App. P 9.4(i)(2)(B) and 9.4(i)(3), I certify
that the number of words in this document, excluding those matters listed in Rule
9.4(i)(1), which was prepared in Microsoft Word using 14-point Times Roman, is
7,594 words.




                                      ________________________________
                                      CLARK RICHARDS




                                        34
                 CERTIFICATE OF FILING AND SERVICE

      I hereby certify that on this 28th day of October 2015, a copy of Appellants’
Brief was served by email and first class mail on the following counsel:

Karen L. Landinger                        Willie Ben Daw, III
klandinger@cbylaw.com                     wbdaw@dawray.com
Andres R. Gonzalez                        C. Thomas Valentine
agonzalez@cbylaw.com                      tvalentine@dawray.com
Cokinos Bosien & Young                    Kyle D. Giacco
10999 West IH-10, Suite 800               Kgiacco@dawray.com
San Antonio, Texas 78230                  5718 Westheimer, Suite 1750
Attorneys for Appellee                    Houston, Texas 77057
WWGAF, Inc. d/b/a Rockin ‘R’ River        Attorneys for UME, Inc. d/b/a Camp
Rides                                     Huaco Springs, Williams George
                                          Rivers and Richard Duane Rivers




                                      ________________________________
                                      CLARK RICHARDS




                                        35
                             APPENDIX

TAB 1   Order Granting Defendant WWGAF, Inc.’s Amended Traditional and
        No Evidence Motion for Partial Summary Judgment, dated March 10,
        2015. (CR 2172)

TAB 2   Orders Granting Defendants, UME, Inc. d/b/a Camp Huaco Springs,
        William George Rivers, and Richard Duane Rivers’ First Amended
        Traditional and No-Evidence Motion for Summary Judgment and No-
        Evidence Motion for Partial Summary Judgment, dated March 26,
        2015. (CR 2194-2201)
TAB 3   Order granting in part Motion for Leave to Supplement Summary
        Judgment Record, dated April 21, 2015 (CR 2263)
TAB 4   Deposition of Cynthia Walker (CR 1371-1395)
TAB 5   Color copies of Plaintiffs’ Supplemental Summary Judgment Exhibit
        R (also referenced as CR 2226-2233)
TAB 6   Tex. Civ. Prac. & Rem. Code Chapter 75, Recreational Use Statute




                                  36
TAB 1
2172
TAB 2
2194
2195
2196
2197
2198
2199
2200
2201
TAB 3
2263
TAB 4
1371
1372
1373
1374
1375
1376
1377
1378
1379
1380
1381
1382
1383
1384
1385
1386
1387
1388
1389
1390
1391
1392
1393
1394
1395
TAB 5
Plaintiffs' Summary Judgment Exhibit R - Page 1 of 8
Plaintiffs' Summary Judgment Exhibit R - Page 2 of 8
Plaintiffs' Summary Judgment Exhibit R - Page 3 of 8
Plaintiffs' Summary Judgment Exhibit R - Page 4 of 8
Plaintiffs' Summary Judgment Exhibit R - Page 5 of 8
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TAB 6
                               Tex. Civ. Prac. & Rem. Code § 75.001
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 4 Liability In
Tort > Chapter 75 Limitation of Landowners’ Liability

Sec. 75.001. Definitions.
   In this chapter:
       (1) “Agricultural land” means land that is located in this state and that is suitable for:
           (A) use in production of plants and fruits grown for human or animal consumption, or plants
               grown for the production of fibers, floriculture, viticulture, horticulture, or planting seed;
           (B) forestry and the growing of trees for the purpose of rendering those trees into lumber, fiber,
               or other items used for industrial, commercial, or personal consumption; or
           (C) domestic or native farm or ranch animals kept for use or profit.
       (2) “Premises” includes land, roads, water, watercourse, private ways, and buildings, structures,
            machinery, and equipment attached to or located on the land, road, water, watercourse, or
            private way.
       (3) “Recreation” means an activity such as:
           (A) hunting;
           (B) fishing;
           (C) swimming;
           (D) boating;
           (E) camping;
           (F) picnicking;
           (G) hiking;
           (H) pleasure driving, including off-road motorcycling and off-road automobile driving and the
               use of all-terrain vehicles and recreational off-highway vehicles;
           (I) nature study, including bird-watching;
           (J) cave exploration;
           (K) waterskiing and other water sports;
           (L) any other activity associated with enjoying nature or the outdoors;
           (M) bicycling and mountain biking;
           (N) disc golf;
           (O) on-leash and off-leash walking of dogs; or
           (P) radio control flying and related activities.
       (4) “Governmental unit” has the meaning assigned by Section 101.001.
                                                                                           Page 2 of 2
                                           Tex. Civ. Prac. & Rem. Code § 75.001

History
Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985; am. Acts 1989,
71st Leg., ch. 62 (H.B. 239), § 1, effective September 1, 1989; am. Acts 1989, 71st Leg., ch. 736 (H.B.
1224), § 1, effective September 1, 1989; am. Acts 1995, 74th Leg., ch. 520 (H.B. 2085), § 1, effective
August 28, 1995; am. Acts 1997, 75th Leg., ch. 56 (H.B. 2664), § 1, effective September 1, 1997; am.
Acts 2005, 79th Leg., ch. 116 (S.B. 1224), § 1, effective September 1, 2005; am. Acts 2005, 79th Leg.,
ch. 932 (H.B. 616), § 1, effective September 1, 2005; am. Acts 2007, 80th Leg., ch. 659 (H.B. 1183), §
1, effective June 15, 2007; am. Acts 2015, 84th Leg., ch. HB2303 (H.B. 2303), § 1, effective June 19,
2015.
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                               Tex. Civ. Prac. & Rem. Code § 75.002
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 4 Liability In
Tort > Chapter 75 Limitation of Landowners’ Liability

Sec. 75.002. Liability Limited.
   (a) An owner, lessee, or occupant of agricultural land:
       (1) does not owe a duty of care to a trespasser on the land; and
       (2) is not liable for any injury to a trespasser on the land, except for wilful or wanton acts or gross
            negligence by the owner, lessee, or other occupant of agricultural land.
   (b) If an owner, lessee, or occupant of agricultural land gives permission to another or invites 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 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 any
            act of the person to whom permission is granted or to whom the invitation is extended.
   (c) If an owner, lessee, or occupant of real property other than agricultural land 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
       (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.
   (d) Subsections (a), (b), and (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.
   (e) In this section, “recreation” means, in addition to its meaning under Section 75.001, the following
        activities only if the activities take place on premises owned, operated, or maintained by a
        governmental unit for the purposes of those activities:
       (1) hockey and in-line hockey;
       (2) skating, in-line skating, roller-skating, skateboarding, and roller-blading;
       (3) soap box derby use; and
       (4) paintball use.
   (f) Notwithstanding Subsections (b) and (c), if a person enters premises owned, operated, or maintained
        by a governmental unit and engages in recreation on those premises, the governmental unit does not
        owe to the person a greater degree of care than is owed to a trespasser on the premises.
                                                                                                 Page 2 of 2
                                           Tex. Civ. Prac. & Rem. Code § 75.002

    (g) Any premises a governmental unit owns, operates, or maintains and on which the recreational
        activities described in Subsections (e)(1)—(4) are conducted shall post and maintain a clearly
        readable sign in a clearly visible location on or near the premises. The sign shall contain the
        following warning language:
         WARNING
     WARNINGTEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES CODE) LIMITS
       THE LIABILITY OF A GOVERNMENTAL UNIT FOR DAMAGES ARISING DIRECTLY
       FROM HOCKEY, IN-LINE HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING,
       SKATEBOARDING, ROLLER-BLADING, PAINTBALL USE, OR SOAP BOX DERBY USE
       ON PREMISES THAT THE GOVERNMENTAL UNIT OWNS, OPERATES, OR MAINTAINS
       FOR THAT PURPOSE.
    (h) An owner, lessee, or occupant of real property in this state is liable for trespass as a result of
        migration or transport of any air contaminant, as defined in Section 382.003(2), Health and Safety
        Code, other than odor, only upon a showing of actual and substantial damages by a plaintiff in a
        civil action.
    (i) Subsections (b) and (c) do not affect any liability of an owner, lessee, or occupant of real property
         for an injury occurring outside the boundaries of the real property caused by an activity described
         by Section 75.001(3)(P) that originates within the boundaries of the real property.

History
Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985; am. Acts 1989, 71st
Leg., ch. 62 (H.B. 239), § 2, effective September 1, 1989; am. Acts 1997, 75th Leg., ch. 56 (H.B. 2664), §
2, effective September 1, 1997; am. Acts 1999, 76th Leg., ch. 734 (H.B. 1058), § 1, effective September 1,
1999; am. Acts 2003, 78th Leg., ch. 204 (H.B. 4), § 21.01, effective September 1, 2003; am. Acts 2003,
78th Leg., ch. 739 (H.B. 3248), § 1, effective September 1, 2003; am. Acts 2005, 79th Leg., ch. 116 (S.B.
1224), § 2, effective September 1, 2005; am. Acts 2005, 79th Leg., ch. 932 (H.B. 616), § 2, effective
September 1, 2005; am. Acts 2007, 80th Leg., ch. 227 (H.B. 1560), § 1, effective May 25, 2007; am. Acts
2007, 80th Leg., ch. 659 (H.B. 1183), § 2, effective June 15, 2007.
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                                Tex. Civ. Prac. & Rem. Code § 75.003
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 4 Liability In
Tort > Chapter 75 Limitation of Landowners’ Liability

Sec. 75.003. Application and Effect of Chapter.
   (a) This chapter does not relieve any owner, lessee, or occupant of real property of any liability that
       would otherwise exist for deliberate, wilful, or malicious injury to a person or to property.
   (b) This chapter does not affect the doctrine of attractive nuisance, except:
       (1) as provided by Section 75.0022(g) or 75.0025(c); and
       (2) the doctrine of attractive nuisance may not be the basis for liability of an owner, lessee, or
            occupant of agricultural land for any injury to a trespasser over the age of 16 years.
   (c) Except for a governmental unit, this chapter applies only to an owner, lessee, or occupant of real
        property who:
       (1) does not charge for entry to the premises;
       (2) charges for entry to the premises, but whose total charges collected in the previous calendar
            year for all recreational use of the entire premises of the owner, lessee, or occupant are not
            more than 20 times the total amount of ad valorem taxes imposed on the premises for the
            previous calendar year; or
       (3) has liability insurance coverage in effect on an act or omission described by Section 75.004(a)
            and in the amounts equal to or greater than those provided by that section.
   (d) This chapter does not create any liability.
   (e) Except as otherwise provided, this chapter applies to a governmental unit.
   (f) This chapter does not waive sovereign immunity.
   (g) To the extent that this chapter limits the liability of a governmental unit under circumstances in
       which the governmental unit would be liable under Chapter 101, this chapter controls.
   (h) In the case of agricultural land, an owner, lessee, or occupant of real property who does not charge
        for entry to the premises because the individuals entering the premises for recreation are invited
        social guests satisfies the requirement of Subsection (c)(1).

History
Enacted by Acts 1985, 69th Leg., ch. 959 (S.B. 797), § 1, effective September 1, 1985; am. Acts 1987,
70th Leg., ch. 832 (H.B. 1032), § 5, effective September 1, 1987; am. Acts 1989, 71st Leg., ch. 62 (H.B.
239), § 3, effective September 1, 1989; am. Acts 1995, 74th Leg., ch. 520 (H.B. 2085), § 2, effective
August 28, 1995; am. Acts 1997, 75th Leg., ch. 56 (H.B. 2664), § 3, effective September 1, 1997; am.
Acts 2003, 78th Leg., ch. 429 (H.B. 408), § 1, effective September 1, 2003; am. Acts 2013, 83rd Leg., ch.
44 (H.B. 200), § 4, effective May 16, 2013; am. Acts 2015, 84th Leg., ch. HB262 (H.B. 262), § 2,
effective September 1, 2015.
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                                                                                  Page 2 of 2
                                           Tex. Civ. Prac. & Rem. Code § 75.003

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                                   Tex. Civ. Prac. & Rem. Code § 75.004
Texas Statutes & Codes Annotated by LexisNexis® > Civil Practice and Remedies Code > Title 4 Liability In
Tort > Chapter 75 Limitation of Landowners’ Liability

Sec. 75.004. Limitation on Monetary Damages for Private Landowners.
    (a) Subject to Subsection (b), the liability of an owner, lessee, or occupant of agricultural land used for
        recreational purposes for an act or omission by the owner, lessee, or occupant relating to the
        premises that results in damages to a person who has entered the premises is limited to a
        maximum amount of $500,000 for each person and $1 million for each single occurrence of
        bodily injury or death and $100,000 for each single occurrence for injury to or destruction of
        property. In the case of agricultural land, the total liability of an owner, lessee, or occupant for a
        single occurrence is limited to $1 million, and the liability also is subject to the limits for each
        single occurrence of bodily injury or death and each single occurrence for injury to or destruction
        of property stated in this subsection.
    (b) This section applies only to an owner, lessee, or occupant of agricultural land used for recreational
        purposes who has liability insurance coverage in effect on an act or omission described by
        Subsection (a) and in the amounts equal to or greater than those provided by Subsection (a). The
        coverage may be provided under a contract of insurance or other plan of insurance authorized by
        statute. The limit of liability insurance coverage applicable with respect to agricultural land may
        be a combined single limit in the amount of $1 million for each single occurrence.
    (c) This section does not affect the liability of an insurer or insurance plan in an action under Chapter
         541, Insurance Code, or an action for bad faith conduct, breach of fiduciary duty, or negligent
         failure to settle a claim.
    (d) This section does not apply to a governmental unit.

History
Enacted by Acts 1995, 74th Leg., ch. 520 (H.B. 2085), § 3, effective August 28, 1995; am. Acts 1997,
75th Leg., ch. 56 (H.B. 2664), § 4, effective September 1, 1997; am. Acts 2005, 79th Leg., ch. 728 (H.B.
2018), § 11.106, effective September 1, 2005.
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