DID THE “RECREATIONAL USE STATUTE” BAR THE NEGLIGENCE SUIT AGAINST THE UNIVERSITY?
Case citation: University of Texas at Arlington v. Williams, __ S.W.3d __, 2013 WL 1234878 (Tex. App. – Waco 2013).
Summary: Sandra and Steve Williams attended their daughter’s high school soccer game at the University of Texas at Arlington’s (UTA) Maverick Stadium. However, while Sandra was walking down the stairs toward the field level, she placed her hand on a gate that swung open. As a result, she fell five feet to the track below and broke her left arm and a rib.
Sandra and Steve sued UTA claiming that the gate was faulty and that the university was negligent with respect to maintaining the gate and the locking mechanism. In addition to Sandra’s personal injury claims, Steve sued on his own behalf for loss of consortium. The university sought dismissal of the suit. UTA asserted that attending a sporting event is a recreational use and that the university’s liability was limited by the “recreational use statute.” UTA also argued that Steve did not provide proper notice of his claim as required by the Tort Claims Act. The trial court declined to dismiss the case and the university appealed.
Ruling: The appeals court upheld the trial court’s denial of UTA’s plea to the jurisdiction. The Texas Tort Claims Act waives sovereign immunity for certain tort claims. A premises defect is one type of claim for which the legislature has provided a waiver of immunity for universities. That waiver is limited, however, by Texas’s recreational use statute. Under that statute (Tex. Civ. Prac. & Rem. Code §§ 75.002(c), 75.003), if an owner of real property, including a governmental unit, gives permission to another to enter the premises for recreation, the owner owes to that person only the degree of care owed to trespassers. This limitation, however, does not apply to an owner who has been “grossly negligent or acted with malicious intent or in bad faith.”
Thus, according to the appeals court, if Sandra were engaging in recreation when she was injured, then UTA owed her only the duty it would owe to a trespasser unless it had been grossly negligent or acted with malicious intent or in bad faith. The statute provides a list of activities that are recreational. The list is not exclusive and the term “recreational” includes activities “such as” those included in the statutory list. The Supreme Court has held further that in determining whether an activity is recreational, courts should look to what the person was doing when she was injured, rather than the person’s purpose for entering the facility.
In this case, the appeals court held that Sandra was not engaging in “recreational” activities at the time of her injury. She was not playing soccer, but was a spectator at a sporting event and exiting the stadium. The appeals court concluded that neither of those activities fell within the meaning of recreational activity under the statute. Because the recreational use statute did not apply to Sandra’s claims, it did not provide immunity to the university.
The appeals court also held that Sandra had created a fact issue on whether UTA acted with gross negligence in maintaining its facilities. To raise a fact issue, Sandra had to produce some evidence that (1) UTA had committed an act or omission, (2) the act or omission involved an extreme degree of risk, (3) UTA had subjective awareness of the extreme degree of risk, and (4) this awareness indicated a conscious indifference to the rights, safety, and welfare of others. According to the appeals court, the Williamses produced evidence that UTA had knowledge that the padlocks had a tendency to fail but, nevertheless, relied on the lock to keep the gate closed and prevent a five-foot fall from the stands to the track below. The evidence was sufficient to create a fact issue on the claim of gross negligence.
The appeals court determined further that UTA received adequate notice of Steve’s claims as required under the Tort Claims Act. The Act provides that a “governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred.” In this case, Sandra gave formal notice of her claims to the university under the Act. In that notice, she included the identity and contact information for Steve as a witness to the incident, and she identified him as her spouse. Steve’s claims were based on Sandra’s injuries. Thus, according to the appeals court, if the university was on notice of Sandra’s injuries, then it had notice of Steve’s injuries as well. Because UTA had adequate notice of Steve’s claims, the university was not entitled to dismissal of the claims.
Things to Remember: Tort liability for universities is greater than it is for public school districts. The Tort Claims Act allows claims against universities for the negligence in the “condition or use of tangible personal or real property.” Thus UTA faces potential liability for the negligent maintenance of a gate. Liability of school districts, however, is limited to negligence in the use or operation of a motor vehicle or motor-driven equipment.