City of Waco v. Kirwan, No. 08-0121 (Tex. Nov. 20, 2009)(Green)(Texas Tort Claims Act case
dismissed)
CITY OF WACO v. DEBRA KIRWAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BRAD
MCGEHEE, DECEASED; from McLennan County;
10th district (10 07 00123 CV, 249 SW3d 544, 01 09 08)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright,
Justice Medina, Justice Johnson, Justice Willett, and Justice Guzman joined as to Parts I–V, and in which
Chief Justice Jefferson joined as to Part IV. [pdf]
View Electronic Briefs in 08-0121 CITY OF WACO v. KIRWAN
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City of Waco v. Kirwan (Tex. 2009)(Green)
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Argued February 3, 2009
Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice O’Neill, Justice
Wainwright, Justice Medina, Justice Johnson, Justice Willett, and Justice Guzman joined as to Parts I–V, and
in which Chief Justice Jefferson joined as to Part IV.
The recreational use statute, when applicable, “raises the burden of proof [in a premises liability case]
by classifying the recreational user of [government]-owned property as a trespasser and requiring proof of
gross negligence, malicious intent, or bad faith” on the part of the governmental unit. State v. Shumake, 199
S.W.3d 279, 281 (Tex. 2006). But if the law imposes no duty upon the landowner with respect to the allegedly
dangerous condition, then this burden of proof does not come into play. In this case, we consider whether a
landowner owes a duty, under the recreational use statute, to recreational users to warn or protect
recreational users against the danger of a naturally occurring condition or otherwise refrain from gross
negligence with respect to the condition. We hold, consistent with the purpose of the statute, that a landowner
generally owes no such duty, and therefore reverse the court of appeals’ judgment and dismiss the case with
prejudice.
I
On April 24, 2004, college student Brad McGehee was watching boat races in Cameron Park, a
municipal park located in the City of Waco. McGehee was sitting on top of a cliff in an area known as Circle
Point, when the plaintiffs allege the solid rock ground collapsed underneath him, causing him to fall
approximately sixty feet to his death. Rusty Black, Municipal Services Director for the City of Waco, swore in
an affidavit that the cliff was a naturally occurring cliff consisting of loose rock and natural cracks, that it was
not created by the City of Waco, nor had the City altered, modified, or excavated the limestone cliff beyond
the stone wall in front of the cliff. Attached to his affidavit were photographs of the cliff, which clearly
demonstrate that the cliff is a natural condition altered only by nature. The photographs show a rock wall
constructed by the City situated in front of the cliff, accompanied by a sign warning, “FOR YOUR SAFETY DO
NOT GO BEYOND WALL.” McGehee had crossed the wall and was beyond the warning sign when he fell to
his death. There was no evidence that the City modified the cliff from which McGehee fell in any way.
On February 4, 2005, Debra Kirwan, individually and as representative of the Estate of Brad McGehee,
filed a premises liability suit against the City of Waco, alleging that McGehee’s death was proximately caused
by the gross negligence of the City, thus waiving the City’s immunity against suit and liability under the Texas
Tort Claims Act. After the original petition was filed, the parties agreed to abate the case until this Court
issued its decision in State v. Shumake, 199 S.W.3d 279 (Tex. 2006)—a case which addressed the
recreational use statute. Following the Shumake decision, Kirwan filed an amended petition, alleging that
McGehee’s death and Kirwan’s damages were directly and proximately caused by the gross negligence of the
City of Waco in connection with the condition of its real property. See Shumake, 199 S.W.3d at 287 (defining
gross negligence as “an act or omission involving subjective awareness of an extreme degree of risk,
indicating conscious indifference to the rights, safety, or welfare of others”). As evidence of the City’s
subjective awareness of the cliff’s alleged extreme degree of risk, Kirwan relied on a student report, which
had been submitted to the City, and had warned of falling rocks in Cameron Park and had recommended the
use of warning signs. As evidence of the City’s alleged conscious indifference to these risks, Kirwan cited the
lack of any sign specifically warning of the risk of fatality resulting from the condition of the Cameron Park
premise and evidence showing that despite the fact that other park patrons had died or been seriously
injured by the condition of the premises, the City continued to allow park patrons into the areas with the
unstable rock.
The City responded by filing a Second Amended Plea to the Jurisdiction, arguing that Kirwan’s pleadings
affirmatively negated the court’s jurisdiction, or, in the alterative, that the undisputed evidence established a
lack of jurisdiction. Specifically, the City relied on Shumake to argue that, as a matter of law, a landowner may
not be grossly negligent for failing to warn of the inherent dangers of nature. The trial court agreed and
signed an order dismissing the case against the City.
A divided court of appeals reversed the trial court’s judgment and remanded, reasoning that “[w]e do not
read Shumake to suggest that all natural conditions are per se open and obvious or that a natural condition
may never serve as the basis for a premises defect claim”; instead, it held that “the recreational use statute
permits premises defect claims based on natural conditions as long as the condition is not open and obvious
and the plaintiff furnishes evidence of the defendant’s alleged gross negligence.” 249 S.W.3d 544, 552
(emphasis in original).1 The court of appeals then concluded that Kirwan’s pleadings and evidence raised
fact issues as to the City’s alleged gross negligence. Id. at 557. We granted the City’s petition for review to
determine whether, under the recreational use statute, a landowner owes a duty to warn or protect
recreational users against the dangers of naturally occurring conditions. 52 Tex. Sup. Ct. J. 122 (Tex. Nov.
21, 2008).
II
A plea to the jurisdiction seeks to dismiss a case for want of jurisdiction. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). When reviewing whether a plea was properly granted, we first
look to the pleadings to determine if jurisdiction is proper, construing them liberally in favor of the plaintiffs
and looking to the pleader’s intent. Id. at 226. The allegations found in the pleadings may either affirmatively
demonstrate or negate the court’s jurisdiction. Id. at 226–27. If the pleadings do neither, it is an issue of
pleading sufficiency and the plaintiff should be given an opportunity to amend the pleadings. Id. “However, if a
plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised,” even where those facts
may implicate the merits of the cause of action. Id. at 227. If that evidence creates a fact issue as to the
jurisdictional issue, then it is for the fact-finder to decide. Id. at 227-28. “However, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the
jurisdiction as a matter of law.” Id. at 228. In considering this evidence, we “take as true all evidence favorable
to the nonmovant” and “indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor.” Id.
The City claims Kirwan’s pleadings affirmatively negate the trial court’s jurisdiction because she failed to
allege the City was grossly negligent “in creating a condition that a recreational user would not reasonably
expect to encounter on the property in the course of permitted use.” Shumake, 199 S.W.3d at 288.
Alternatively, the City argues that, even if the pleadings do not affirmatively negate jurisdiction on their face,
then the undisputed evidence establishes as a matter of law a lack of jurisdictional facts to support a waiver
of governmental immunity. Both arguments present the question of whether, under the recreational use
statute, a landowner owes a duty to warn or protect recreational users against the dangers of naturally
occurring conditions on the landowner’s property. The City argues that we answered this question in
Shumake, where we stated:
[W]e do not hold, or even imply, that a landowner may be grossly negligent for failing to warn of the inherent
dangers of nature. A landowner has no duty to warn or protect trespassers from obvious defects or
conditions. Thus, the owner may assume that the recreational user needs no warning to appreciate the
dangers of natural conditions, such as a sheer cliff, a rushing 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.
199 S.W.3d 288 (citations omitted). Kirwan and the court of appeals disagree, arguing that this statement
addressed open and obvious conditions only, and that Shumake merely provided examples of open and
obvious conditions which happen to be naturally occurring. We agree that, while Shumake may have provided
some guidance, it did not directly answer the question presented here. The condition in Shumake was not a
naturally occurring one. See id. at 281 (addressing liability for danger from man-made culvert). Here,
however, the facts present a condition alleged to be both natural and not open and obvious. Thus, the
question left open by Shumake is properly before us.
III
A
Under the Texas Tort Claims Act, the government waives immunity from suit to the extent of liability
under the Act. Tex. Civ. Prac. & Rem. Code § 101.025. The government is liable under the Act for “personal
injury and death so caused by a condition . . . of . . . real property if the governmental unit would, were it a
private person, be liable to the claimant according to Texas law.” Id. § 101.021(2). The Act also sets the duty
owed in premises liability cases: “[i]f a claim arises from a premise defect, the governmental unit owes to the
claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays
for the use of the premises.” Id. § 101.022(a). However, the recreational use statute, applicable here,
modifies this duty further, setting the standard as that owed to a trespasser. Id. § 75.002(c)(2). We
recognized in Shumake, however, that although the recreational use statute references a trespasser
standard, it actually creates a specialized standard of care, one not exactly consistent with the common-law
trespasser standard. 199 S.W.3d at 286–87. This specialized standard dictates that landowners must refrain
from gross negligence, or from acting with malicious intent or in bad faith. Id.; Tex. Civ. Prac. & Rem. Code §
75.002(d). Gross negligence is not defined in the statute, so we apply its commonly-accepted legal meaning,
which 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.” Shumake, 199 S.W.3d at 287 (citing cases and Tex.
Civ. Prac. & Rem. Code § 41.001(11)).
As with negligence actions, see, e.g., Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008), a
defendant may be liable for gross negligence only to the extent that it owed the plaintiff a legal duty. See
Shumake, 199 S.W.3d at 287–88 (discussing “under what conditions a failure to guard or warn against a
dangerous condition may be considered grossly negligent, malicious or willful”); Morris v. Tex. Parks & Wildlife
Dep’t, 226 S.W.3d 720, 727 (Tex. App.—Corpus Christi 2007, no pet.) (examining whether park owed a duty,
under recreational use statute, to ensure the safety of a campsite). For example, we have held that “[a]
landowner has no duty to warn or protect trespassers from obvious defects or conditions.” Shumake, 199 S.
W.3d at 288; see also Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 659–60 (Tex. 2007). We have
discussed, but never fully addressed, whether a duty arises with respect to natural conditions, whether they
be open and obvious or not. See Shumake, 199 S.W.3d at 288 (“[W]e do not hold, or even imply, that a
landowner may be grossly negligent for failing to warn of the inherent dangers of nature.”); Miranda, 133 S.W.
3d at 234 (Jefferson, J., dissenting) (“Texas law does not impose on landowners a duty to warn trespassers
about all conceivable dangers inherent in nature.”) (emphasis removed).
If we apply common-law principles with regard to trespassers, the answer to this question is that the
landowner owes no duty to warn or protect against natural conditions. See Shumake, 199 S.W.3d at 285–86
(discussing limited exception to common-law trespasser rule where the landowner created a dangerous
condition); see also, e.g., Restatement (Second) of Torts §§ 333–339 (1977) (stating general rule of no
liability to trespassers, but providing limited exceptions for activities, controllable forces, and artificial
conditions). But, as explained in Shumake, the common-law trespasser standard does not dictate the answer
to this duty question. 199 S.W.3d at 286–87. Instead, the statutory standard controls. Id. And, while it does
not wholly adopt the common-law trespasser standard, it does adopt the common-law gross negligence
standard. Id. Thus, we refer to our traditional, common-law duty analysis, “consider[ing] ‘several interrelated
factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’
s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the
burden on the defendant.’” Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 544 (Tex. 1998) (quoting
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990)). However, unique to this analysis
is the fact that liability here is premised on a statute; therefore, we must be especially mindful of its text and
purpose. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683–84 (Tex. 2007) (applying
statutory construction principles when considering legislatively-created duty owed by alcohol providers to
third parties).
B
Nature is full of risks and it is certainly foreseeable that human interaction with nature may lead to
injuries and possibly even death. Our state parks and lands are covered by numerous potentially dangerous
natural conditions: cliffs; caves; waterfalls; swamps and other wetlands; mountains and canyons; surf; and
various animals and creatures. Landowners likely know of the types of animals and natural formations on
their property, and will no doubt, as a general rule, foresee the risks which will accompany human interaction
with these natural conditions. Reasonable recreational users who choose to visit a property for recreational
purposes will also have, or in the very least should have, awareness of the inherent risks involved in
interacting with nature. See Shumake, 199 S.W.3d at 288 (“[An] owner may assume that the recreational user
needs no warning to appreciate the dangers of natural conditions. . . .”). Therefore, the risks inherent in a
natural condition will ordinarily be foreseeable not only to the landowner but to the recreational user as well.
This is especially true where a natural condition is of the sort one would reasonably expect to find on a
property. Id.
A cliff, like the one here, is the sort of dangerous natural condition that both a landowner and
recreational user could foresee would pose a risk. Indeed, the City had erected a wall and posted a sign
warning visitors to stay away from the cliff’s edge. The cliff also consisted of loose rocks and cracks that
would have been visible to any patron who stood at its edge. However, even assuming that the particular risk
at the cliff’s edge—the alleged crumbling of a large section of the cliff—was not necessarily foreseeable, the
general risk of a cliff’s edge is. See Walker v. Harris, 924 S.W.2d 375, 377 (1996) (“Foreseeability requires
only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.”);
Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 387 (Tex. 1989).
While foreseeability of the risk “is the foremost and dominant consideration,” Greater Houston Transp.
Co., 801 S.W.2d at 525 (internal quotations omitted), “foreseeability alone is not sufficient to justify the
imposition of a duty,” Golden Spread Council, Inc. v. Atkins, 926 S.W.2d 287, 290–91 (Tex. 1996). We must
consider other factors, including the likelihood of injury and the burden of imposing a duty of care. See Tex.
Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002) (observing that question of legal duty is
multifaceted and requires a balance of several factors). The likelihood of harm where a natural condition is
concerned will inevitably vary depending on the location and type of condition. For example, if a coastal area
possesses a severe undertow, the likelihood of harm would be great. The likelihood would increase if the
area was heavily populated by tourists wishing to swim in the water. The likelihood of harm at a cliff’s edge,
and in particular the cliff in this case, has the potential to be great as well—a cliff is an inherently dangerous
condition. However, while some evidence showed the existence of past injuries at the cliffs in Cameron Park,
none appeared to have involved a large piece of earth falling from a cliff as allegedly happened in this case,
or even a rock fall in general. Benjamin Samarripa, Captain of the City of Waco Fire Department and the
emergency first responder to the scene of the accident, testified that he was aware of six incidents involving
falls from the cliffs in Cameron Park, including the incident involving McGehee, but was not aware of any
other injuries caused by crumbling rocks.2 However, Samarripa did testify that along the trails one could see
where rocks had fallen over the years. Kirwan additionally offered as evidence a report by a Baylor University
student which detailed the possibility of rock falls at Cameron Park, but the report did not concern the
possibility of a person actually falling from the top of a cliff due to a cliff losing a section of its edge. Instead,
the report concerned the danger to pedestrians on trails below due to rocks falling from the cliffs. Still, in the
aggregate, the evidence shows that the likelihood of harm at the cliff’s edge was significant, which is why the
City had posted a sign warning visitors to stay away from the cliff’s edge.
Finally, we consider the public policy implications of imposing a duty of care on the City. Peavy, 89 S.W.
3d at 39. In so doing, we balance the social utility of the City’s conduct, the magnitude of the burden of
guarding against the injury, and the consequences of placing the burden on the City, against the risk,
foreseeability, and likelihood of harm. Fletcher, 975 S.W.2d at 544; see also Prosser and Keeton on the Law
of Torts (W. Page Keeton, et. al. eds., 5th ed. 1984) § 32, at 173 (“It . . . is fundamental that the standard of
conduct which is the basis of the law of negligence is usually determined upon a risk-benefit form of analysis:
by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent
of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the
course pursued.”). We must consider what actions a landowner, such as the City, must take to avoid showing
“conscious indifference to the rights, safety, or welfare of others.” Shumake, 199 S.W.3d at 287. As a
practical matter, landowners would err on the side of avoiding obvious harm to others from dangers on their
property by posting a sign, fencing off an area, or closing the area altogether. But these actions, while
desirable in many contexts, do not generally comport with the purpose of the recreational use statute, which
is to encourage landowners to make their lands available to visitors. See Shumake, 199 S.W.3d at 284;
Flynn, 228 S.W.3d at 658.
It is generally unreasonable and unduly burdensome to ask a landowner to seek out every naturally
occurring condition that might be dangerous and then warn of the condition or make it safe. In most
circumstances, the magnitude of the burden in requiring a landowner to make perfectly safe, or post signs
warning of, every potentially dangerous naturally occurring condition on his property would be immense. For
example, must a landowner provide signs along every stretch of beach warning of the dangers of the surf? Or
post warnings throughout Big Bend Ranch State Park concerning the dangers of rattlesnakes and mountain
lions? As a matter of policy, we would hope that a landowner would err on the side of safety by warning
visitors of an especially dangerous natural condition he is aware of on his property. But, when considering
whether the landowner owes a duty of care in determining liability under the statute, the magnitude of this sort
of burden will generally outweigh the foreseeability of the risk of harm where the condition is naturally
occurring.
This is not to say that the risk of harm may never outweigh the burden of imposing a duty of care on
landowners to warn or protect others against the dangers of natural conditions on the land. In the instant
case, one could reasonably expect a cliff to impose a risk of harm: a “recreational user needs no warning to
appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed
rattlesnake.” Shumake, 199 S.W.3d at 288. The loose rocks and cracks at the cliff’s edge could have alerted
a recreational user of the possibility of crumbling rocks. Moreover, it would be obvious to reasonable
recreational users that many cliffs have the potential to crumble. The risk of harm was therefore foreseeable
not just to the City but to McGehee as well. However, we can envision a circumstance where a landowner
knows of a hidden and dangerous natural condition that is located in an area frequented by recreational
users, where the landowner is aware of deaths or injuries related to that particular condition, and where the
danger is such that a reasonable recreational user would not expect to encounter it on the property. In those
circumstances, the foreseeability and likelihood of the risk of harm might outweigh the burden of imposing a
duty of care on the landowner. But such a situation is not present in this case.
The recreational use statute was enacted to encourage government and private parties to open their
land to the public. See Flynn, 228 S.W.3d at 658. It expressly provides that the landowner does not “assure
that the premises are safe for [recreational] purpose[s].” Tex. Civ. Prac. & Rem. Code § 75.002(c)(1). The
Legislature, through the recreational use statute, sought to encourage landowners to open their lands to the
public by limiting their potential liability. We must respect that legislative decision and apply the statute to this
case in a manner that furthers that policy. Thus, we hold that a landowner, lessee, or occupant, under the
recreational use statute, does not generally owe a duty to others to protect or warn against the dangers of
natural conditions on the land, and therefore may not ordinarily be held to have been grossly negligent for
failing to have done so.
C
Kirwan argues that, in Miranda, we implicitly held that a claim may be premised on an injury caused by a
naturally occurring condition. See Miranda, 133 S.W.3d at 229–30 (alleging Department of Parks and Wildlife
was grossly negligent where it failed to warn or protect against falling branches). As stated above, we agree
that a claim may be premised on an injury caused by a naturally occurring condition under limited
circumstances. However, we hold today that, under the recreational use statute, a landowner generally owes
no duty where a claim is premised on an injury caused by a naturally occurring condition. We do not believe
that this holding runs afoul of our holding in Miranda. See id. at 221. First, we did not directly address the
duty question in Miranda. See id. Moreover, only a plurality of the Court joined the part of the opinion which
held that Miranda alleged sufficient facts for a gross negligence claim under the recreational use statute. Id.
at 220, 229–31 (Part III.C.1.).
D
As discussed above, we do not hold that a party may never be liable for gross negligence related to a
natural condition—under some circumstances not present in this case, a landowner may be liable. While we
have previously held that the recreational use statute imposes a duty with respect to artificially created
conditions in many instances, see Shumake, 199 S.W.3d at 288, we do not strive today to define which
conditions are transformed from “natural” to “artificial” due to a landowner’s modifications. The facts here do
not require it. Nor do we hold that a party may escape liability if it acts with malice or in bad faith, even if the
conduct relates to a natural condition. Also, it is possible a duty may be imposed on a landowner who has
undertaken affirmative acts related to natural conditions, such as recommending a certain area or assuring a
patron as to the condition’s safety. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 837–38 (Tex. 2000)
(explaining standard for negligent undertaking claim); Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634,
636 (Tex. 1999) (per curiam) (remanding for trial on undertaking theory where Department “put up signs
around the park notifying visitors that they should leave the river area immediately whenever they heard the
flood warning sirens,” but then the siren failed to alert the plaintiffs of a flood).
The Legislature has left decisions about what size human footprint should be left on our state’s lands to
landowners, park rangers, and patrons. The recreational use statute imposes duties and liability in some
instances as discussed above, but exhibits an overall policy choice to leave wild lands as they are and trust
visitors to use reasonable caution.
IV
We further emphasize that the City had constructed a wall and posted a prominent sign in front of the
cliff stating, “FOR YOUR SAFETY DO NOT GO BEYOND WALL.” As discussed above, the recreational use
statute” requir[es] proof of gross negligence, malicious intent, or bad faith” on the part of the governmental
unit in order to invoke liability. Shumake, 199 S.W.3d at 281. Kirwan alleged gross negligence. Even
assuming that the City owed McGehee a duty, which we hold today that it did not, and assuming that the City
knew of an “extreme degree of risk,” we fail to see how the City showed “conscious indifference to the rights,
safety, or welfare of others” as required under the statute. See Shumake, 199 S.W.3d at 287 (defining gross
negligence as an act or omission involving subjective awareness of an extreme degree of risk, indicating
conscious indifference to the rights, safety, or welfare of others). In previous opinions, we have held that what
separates ordinary negligence and gross negligence is the defendant’s state of mind—the plaintiff must show
that the defendant knew about the risk, but the defendant’s acts or omissions show that he did not care. La.
Pac. Corp. v. Andrade, 19 S.W.3d 245, 246–47 (Tex. 1999). However, “some evidence of care does not
defeat a gross-negligence finding.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001); Gen.
Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex. 1999).
The wall and sign do not indicate simply “some evidence of care.” Harrison, 70 S.W.3d at 785. Instead,
the wall provided a barrier in front of the cliff to prevent patrons from accessing the cliff’s edge, and the sign
warned patrons to stay away from the cliff by instructing them not to go beyond the wall. Kirwan contends that
the sign was inadequate in that it failed to identify the particular hazard applicable to this case, namely the
risk of fatality resulting from the condition of the Cameron Park premises. Kirwan also contends that the City
demonstrated conscious indifference by continuing to allow park patrons into the areas with the unstable
rock. For support, Kirwan cites various premises liability “adequacy of warning” cases under the Texas Torts
Claims Act where the courts of appeals found a warning inadequate. See, e.g., Tex. Dep’t of Transp. v.
Gutierrez, 243 S.W.3d 127, 136 (Tex.App.—San Antonio 2007, no pet.); State v. McBride, 601 S.W.2d 552,
557 (Tex.App.—Waco 1980, writ ref’d n.r.e.). However, these cases did not construe gross negligence under
the recreational use statute and did not concern naturally occurring conditions. Moreover, the City did not
actually allow park patrons into the areas with the unstable rock; rather, the City had constructed a wall and
posted a sign warning visitors not to enter the specific area of the cliff. Given that the purpose of the statute
is to encourage landowners to open their land to recreational users, and the attendant burden of requiring
landowners to warn of or make safe each naturally occurring condition on the land, we refuse to require a
landowner who posts a sign warning of a natural condition to detail each possible dangerous scenario
concerning that condition. This is especially the case where the landowner has also constructed a barrier
around the condition. We do not intend to discourage landowners from posting detailed warning signs where
necessary, but a barrier and a sign warning a recreational user to stay away from a dangerous natural
condition generally will be sufficient to avoid a showing of “conscious indifference to the rights, safety, and
welfare of others” under the statute. Accordingly, we hold that Kirwan’s pleadings and evidence fail to raise a
fact question as to whether the City acted with conscious indifference.
V
We have determined that, with some exceptions that do not apply here, a landowner generally owes no
duty under the recreational use statute to warn or protect against the dangers of natural conditions, and that
the City did not owe McGehee a duty in this case. We have further determined that even if the City did owe
McGehee a duty, the City was not grossly negligent. We now consider the City’s plea to the jurisdiction. As
discussed above, Kirwan’s pleadings allege on their face that: “[McGehee] was watching boat races on the
edge of a popular path in the park sitting on solid ground, which is open to the public and well and heavily
used. Suddenly and without warning, the solid rock ground collapsed underneath him plunging [McGehee]
more than 60 feet . . . .” This statement does not, in itself, affirmatively negate the trial court’s jurisdiction. See
Miranda, 133 S.W.3d at 226–27. However, the City also challenged the existence of jurisdictional facts,
including whether the area where McGehee was sitting was an artificial condition created by the City.3 Upon
review of the jurisdictional evidence, which we discussed above, it is clear that the cliff upon which McGehee
was sitting when he fell was a natural condition. The rock wall and sign situated in front of the cliff are man-
made conditions, but they are not part of the cliff; the cliff from which McGehee fell was beyond the wall.
Moreover, as discussed above, under some narrow circumstances a landowner might owe a duty to warn or
protect against the dangers of a condition even where the condition is naturally occurring, but the undisputed
facts of this case do not rise to that level. Finally, the evidence failed to show a factual dispute concerning the
City’s alleged “conscious indifference to the rights, safety, or welfare” of a recreational user at Circle Point:
the City had built a rock wall in front of the cliff and posted a sign warning visitors not to go beyond the wall.
Because the undisputed facts do not rise to the necessary level that waives the City’s immunity from liability,
neither, therefore, is its immunity from suit waived. See Tex. Civ. Prac. & Rem. Code § 101.025.
* * * * *
For these reasons, we reverse the court of appeals’ judgment and dismiss the case with
prejudice.
_________________________
Paul W. Green
Justice
--------------------------------------------------------------------------------
1 Chief Justice Gray dissented, without issuing a separate opinion. Id.
2 Samarripa testified that three of the other falls involved park patrons either jumping from the cliffs or falling while attempting
to climb the cliffs. He did not explain the manner in which the other two falls occurred. Rusty Black additionally testified that he
was aware of four incidents where falls had occurred at the cliffs at Cameron Park. However, he did not explain the
circumstances of these incidents.
3 The City did not file special exceptions or claim that the pleadings failed either to negate or demonstrate jurisdiction. See
Miranda, 133 S.W.3d at 226–27 (holding that if the pleadings neither affirmatively demonstrate nor negate jurisdiction, “the
issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend” the pleadings).
OPINION DELIVERED: November 20, 2009.
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Note: Key legal terms and phrases rendered in bold type and hyperlinks are not part of the opinion as issued
by the Texas Supreme Court