## IN THE SUPREME COURT O F TEX AS

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F I R S T D I S T R I C T O F T E X A S

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Argued January 14, 2015

J U S T I C E G U Z M A N delivere d the opinion of the Court.
T his interlocutory appea l involves a municipality ’s plea to the jurisdiction in a p re m i s es liability case arising from the drowning deaths of three family members at a man-made beac h. The surviving spouse and mother of the dece dents alleg es that the drowning deaths re s u l t ed from a peculiar risk of harm cre ated by a conflue nce of artificia l and natura l conditions at the beac h and that the municipality was g rossly neg lige nt in failing to war n or protec t the public ag ainst those dang ers. The trial court denied the jurisdictional plea, but t h e court of appea ls reve rsed and dismiss ed the claims for want of

jurisdi c ti o n. No. 01-12-00848- CV, 2013 WL 867428, at *1 (Tex. App.—Houston [1st Dist.] Marc h 7, 2013). At issue on ap p ea l i s wh ether there is some evidenc e of themunicipality ’s l iability to invoke t he Tex as Tort Claims Act’s waiver of g o v er n m ental immunit y ,

as limit ed by the rec rea tional use statute. S ee T E X
. C I V
. P R A C
. & R E M
. C O D E §§ 75.003(e) -(g ), 101.021-.022,.025. The Tort Claims Act g ener ally waives g overnme ntal immunit y in pr emisesliability case s when a g overnme ntal unit brea ches the duty of car e that a private party would owe to

a licensee

. Id. §§ 101.021-.022, .025. I f premises are open to the public for rec rea tional activities, howeve r, the rec rea tional use statute eleva tes the burden of proof require d to invoke the Tort Claims Act’s immunit y waiver by classify ing rec rea tional users as trespasse rs and requiring proof of g ross
neg lige nce, malicious intent, or bad faith. Id. § 75.002; State v. Shumake , 19 9 S

. W

. 3 d 2 7 9 , 281 (Tex. 2006). I n previous case s apply ing these statutes, we have held that landowner s owe a duty to

war n or protec t rec rea tional users when artificia l conditions cre ate dang erous conditions that are not
open and obvious, but have no duty to war n or protec t ag ainst conditions that are open or inhere nt, and thus obvious, reg ardle ss of whether such conditions are natura lly or artificia lly cre ated. Compare S

h umake , 199 S.W .3d at 281-82, 88 (man-ma de culver t cre ated dang erous, hidden undertow) , with City of W aco v. Kir w a n , 2 9 8 S

. W.3d 618, 626 (Tex. 2009) (edg e of cliff is inhere ntly dang erous) and Stephen F. Austin State Univ. v. Flynn , 228 S.W .3d 653, 660 (Tex. 2007) (ar tificial condition was visible and known to rec rea tional cy clist). The alleg ation in this case is that artificia l conditions interac ted with natura l conditions to exacer bate and incre ase inhere nt risks well bey ond what a rea sonable rec rea tional use r might rea sonably anticipate. This c ase thus involves a

conver g ence of natura l and ar tificial conditions as well as ope n, inhere nt, and latent dang ers. Reg ardle ss of whethe r a duty exis ts, however , when g ross neg lige nce is alleg ed, immunity is waived only

if the g overnme ntal entity (1) knew about a condition of the pr operty g iving r ise to

2an extreme deg ree of risk and (2) proce eded wi t h conscious indiffer ence to the rig hts, safe ty , or

welfa re of others. Shumake , 199 S.W .3d at 287; see also T E X
. C I V
. P R A C
. & R E M
. C O D E § 41.001(11). Construing the rec ord in the light most favor able to the petitioner, as we must, there is no evidenc e that the municipality had knowledg e of conce aled conditions at the beac h cre ating an extreme risk of har

m. We therefor e af

firm the cour

t of appe als’ judg ment. I. Background The trag ic deaths of a y oung fathe r and h i s twin daug hters occurre d in the waters adjacent
to the Texas City Dike, a man-made peninsula jutting 5.4 miles into Galveston Ba y off the coast of
Texas City , Texas. The Dike was initially cre ated more than 10 0 y ea rs ag o to help prese rve the Texas Cit y

Ship C hannel f

rom excessive siltation.
Be cause of the ship channe l’s location in Galveston Ba y near an inlet to the Gulf of Mexi co,

curr ents car

ry silt i n t o the man-made channe l and fre quent dredg ing is require d to keep the water navig able. The United States Army Corps of Eng ineer s constructe d the Dike to help stop the flow of silt into t he cha

nnel. Orig inally completed in 1915, the Dike wa s ext ended to its curr ent leng th in 1 9 3 4

. T o m aint ain t he shi p channe l, the C orps of Eng ineer s reg ularly dredg es t he channel and deposits dredg ed materia ls consisting of fine-g rain sediment at a “spoil are a” on the north side of the Dike. Ove r time, the spoil are a has de veloped into a man- made be ach.
I n 1931, the State convey ed owner ship of the Dike to T exas City and require d that the Dike be used only

for public pur

poses. See Act “Granting Dike” to City of Tex as C ity , 42nd L eg ., R.S., ch. 54, § 1, 1931 Tex. Spec. L aws 134, 134-35. Texas City has owned, maintained, and opera ted the Dike ever since. I n 1963, the Texas L eg islature opened the Dike up to rec rea tional activity

. Act of

3May 22, 1963, 58th L eg ., R.S., ch. 503, § 2, 1963 Tex. Gen. L aws 1316, 1317. To fac ilitate acc ess,

an aspha lt road stretc hes the leng th of the five- mile peninsula. Wit h co ast al water s acc essible via 10 miles of shoreline, visitors to the Dike eng ag e in

rec rea tional activities including boating , fishing, cra bbing, and swimming, in addition to non-wa terre l ated activities like picnicking , running , and cy cling

. Amenities at the Dike include boat ramps, piers, p a r k in g are as, picnic shelters, portable restrooms, fish-cle aning tables, and street and boat-ra mp lights. At some point, signs we re e rec ted at seve ral loca tions along the Dike bearing the foll owing admonitions:

C “Warning ! No Swimmi ng [or] Diving. Be war e [of] undertow and wake from passing ships.”

C “B ewa

re [of] undertow[,] wake , rip curr ent, and sink holes.”

C “No life g uard on duty . Swim in designate d are a only .”

C “No lifeg uar d on duty

. Swim at y our own risk. Be war e of undertow from passing ships.” Some of the sig ns’ war

nings w ere in Eng lish only and other s were in both Spanish and English. 1
On September 13, 2008, Hurric ane I ke made landfa ll near Galveston, Texas. The hurrica ne

cause d considera

ble damag e to the Dike—er oding beac hes, d am ag ing the roadw ay , upending and damag ing improvements, and destroy ing or damag ing all the war ning signs. Due to ong oing repa irs, Texas Cit y

closed the D ike to the public for ne arly two y ear s.

T h e r e i s a s u g g e s t i o n i n t h e r e c o r d t h a t a t l e a s t s o m e o f t h e s e s i g n s w e r e p o s t e d a t t h e b e h e s t o f a f o r m e r T e x a s 1 C i t y m a y o r , C h u c k D o y l e , i n r e s p o n s e t o h i s s o n ’ s d i v i n g a c c i d e n t , t h e c i r c u m s t a n c e s o f w h i c h a r e n o t e l u c i d a t e d

. T e x a s C i t y ’ s c u r r e n t m a y o r , M a t t h e w T

. D o y l e , i s t h e f o r m e r m a y o r ’ s s o n a n d w a s t h e v i c t i m o f t h e r e f e r e n c e d d i v i n g a c c i d e n t

. H e t e s t i f i e d t h a t h e d i d n o t k n o w a b o u t a p a r t i c u l a r i m p e t u s f o r e r e c t i n g w a r n i n g s i g n s a t t h e D i k e a n d s t a t e d t h a t h i s a c c i d e n t h a d n o t h i n g t o d o w i t h s w i m m i n g s k i l l o r a b i l i t y b u t r e s u l t e d f r o m a m i s t a k e . 4Whil e public acc ess was suspended, Texas City repa ired or repl ac ed the road, piers, boat

ramps, picnic shelters, and lighting structure s. But, not all war ning signs were replac ed. The only

war ning signs the City repla ced wer e “monument” signs at two boat ramps that wer e reope ned following the hurricane. Those sig ns, which ar e lar g e, woode n destination marke rs, are si milar to 2 signs that had been in place at t h e same locations befor e the hurrica ne. The signs include the following war

ning in Eng lish and Spanish: “Warning ! No Swimmi ng [or] Diving.” The signs also caution in Eng lish: “B ewa re [of] Under

tow and Wake from Passing ships.” Texas City elec ted not
to repla ce other war

ning signs destroy ed by the storm. The evidenc e in the rec ord does not establish the location or number of those signs but it i s undisputed that the signs that wer e not repla ced had

war ned about swimming outside desig nated are as, cautioned that no lifeg uard was on duty , advised

rec rea tional users to swim at their own risk, or w arne d about rip tides and sink holes. On October 3, 2010, less than a month afte r the Dike re- opened t o t h e p u b l i c, Edith and
Hec tor Suarez visi t ed the Dike along with their nine-y ear -old twin daug hters and other family members and friends. They paid t he $5 entra nce fee char g ed to nonresidents on the weekends and drove to the beac h are a that had been formed over time by the deposition of silt dredg ed from the ship channe l. The be ach, w hich was a ppointed with cover ed picnic ta bles, aff orded visitors unimpeded

acc ess to the wa t er . No are a was desig nated for swimming at the beac h, and no signs prohibited swimming or war

ned of swimming dang ers at that location. The tide was high, the wind was strong , and the wa t er wa s choppy with brea king wave s. As soon as the Suarez family had parke d their

A m o n u m e n t s i g n w i t h o u t a w a r n i n g w a s r e p l a c e d w i t h a n o t h e r , s i m i l a r s i g n a t a t h i r d b o a t r a m p . 2
5vehicle, the t wi n gi rl s , s t i ll dresse d in street clothes, wade d into the water up to their knees. Ver y shortly there afte r, they wer e seen strug g ling to stay afloa t in deepe r water approximately 10 fee t from the beac h. Hec tor Suarez and two other men strug g led to save the g irls, but the resc ue attempt failed.
Hec tor and his daug hters drowne d as t hey wer e swept far ther from the shore, and the other two

resc uers ha d to help one anothe r bac k to the beac h to esca pe the strong curr ent. 3
Wil liam W o rs h am , a coasta l eng ineer reta ined to asce rtain how the incident had occur red, deter mined that brea

king wave s and the “noticea bly slippery ” surfa ce of the submerg ed beac h cause d the y oung victims to lose their footing despite standing in shallow water ; the scalloped shape of the beac h’s surfa ce wa s char acte ristic of a beac h that can g ener ate rip curr ents when interac ting with

wave s; and the conver g ence of these conditions cause d the girls to be swept from knee-de ep water “to water s deep and roug h enoug h to result in drowning .” Acc ording to Worsham, on the day of the incident, “[w]ater conditions adjac ent to the beac h wer e turbulent and highly varia ble, consisting of choppy water , brea

king wave s, oscillating onshore and offshore curr ents, and longshor e curr ents. I t is clea r upon inspection that these are difficult swimming conditions.” Moreove r, “[g]iven the wave and curr ent conditions, upon rea ching a water depth of even half a person’ s heig ht[ ,] it would be quite difficult . .

. to ma intain suf ficient contac t w ith the bottom t o resist being moved in the direc tion of
water motion.” I n Worsham’s opinion, “[e]ven water d ep t h s o f less than t wo feet wer e capable of causing loss of balanc e,” a condition that “wa s preva lent within 25 fee t of the shore in the case of the children involved.” Worsham’s “[i] nitial analy sis showed wind-g ener ated wave s interac ted with the

B e c a u s e E d i t h a n d H e c t o r S u a r e z s h a r e a s u r n a m e , w e r e f e r t o H e c t o r b y h i s f

i r s t n a m e t o a v o i d c o n f u s i o n . 3 6[m an-ma de] beac h and cause d the upset and loss of footing of the y oung victims, and that [st rong er]

tidal curr ents and local curr ents resulting from the interac tion of wave s with the beac h surfa ce would transport a

person towa

rd dee per w ater

once he /she had lost contac t with the bottom . . . .”
E d ith Suarez, individually and on behalf of the dece dents, sued Texas City , allegin g i t h ad
actua l or constructive knowledg e that hidden, dange rous conditi ons exis ted i n t h e wa t er wher e the family drowne d and was there fore neg lige nt and g rossly neg lige nt in (1) cre ating a be ach, (2) allowing swimming in the are a, (3) fai l ing to provide signs war ning of perilous conditions that wer e not obvious to swimmers, and (4) failing to conduct studies to deter mine the exis tence of any such perils. Suarez asser

ted that, in doing so, Texas City failed to use the ordinary car e a rea sonable and prudent
person would have employ ed to reduc e, eliminate, or war n about the risk and, acc ording ly , brea ched its duty to war

n or make the premises rea sonably safe

. I n the alterna tive, Suarez claimed Texas City

cre ated an attrac tive nuisance , entici n g t h e public to swim near an are a that looked like a beac h, knowing there wer e hidden dang ers in the form of deadly undertows, curr ents, and deep holes in the beac h water

. I n b ri n gi ng suit ag ainst Texas City , Suarez aver red that g overnme ntal immunit y was waived under the Wrongf

ul Dea th Act and, in the alterna tive, the Tort Claims Act and the rec rea tional
use statute. Texas City answe red with a plea to the jurisdiction, g ener al denial, and sever al aff irmat i v e defe nses. The City ’s plea, as supplemented, asser ted that S uare z’s pleading s and evidenc e wer e insuf fi cient to support jurisdiction. Texas City denied that it owed a duty under the circ umstances
or t hat there was a

ny evidenc e it acte d with the culpabilit y require d to invoke a statutory waiver of immun i t y . More specific ally , the City asser ted it owes rec rea tional users only the deg ree of car e
7aff

orded to a trespasse r, which does not include war ning or protec ting ag ainst beac h conditions and associate d risks that are open and obvious, ordinary and natura l fe at u re s of submerg ed land, and inhere nt in open-w ater swimming. The City further alleg ed that evidenc e of conscious indiffer ence

was lacking and arg ued that the use of s ome war ning signs aff

irmatively neg ated conscious i n d i ff er en ce . I n addition to other arg uments, the City denied the exis tence of a defe ct, specia l or otherwise; asser

ted that its discretionar

y decisio n s re gar d ing place ment of war ning signs is not actionable under the Tort Claims Act; and arg ued that the Wro n gfu l Dea th Act does not waive immunit y for municipalities. See T E X
. C I V
. P R A C
. & R E M
. C O D E § 101.056.
Texas C i t y al s o moved for summary judgme nt on identical grounds and further challeng ed

causa tion as a matter of law. I n support of both the plea and the moti o n for summary judgme nt, Texas Cit y offe red the aff idavit of Tom Kessler , the C ity ’s Dire ctor of Public Works, and attac hed photogr aphs showing t hat warning signs erec ted by Texas City afte r Hurricane I k e an d i n stalled at
two boat ramps wer e substantively identical to the monument sig ns damag ed in the hurrica ne. The photos also show that a si g n at a third boat ramp bore no war nings eith er befor e or afte r Hurricane
I ke.
I n response to Texas City ’s jurisdictional plea and m o t i o n for summary judgme nt, Suarez offe red the following evidenc e: (1) deposition testimony from both the curr ent may or of Texas City , Matthew T. Doy le, and the Direc tor of Public Works, Tom Kessler ; (2) an aff idavit from one of the would-be resc uers rec ounting the events leading up to the drowning s; (3) Texas City ’s response s to Suarez’s reque st for admissions; and (4) an aff idavit from Worsham, the coasta l eng ineer ing expert, in which he “cha

rac ter i z e[ d ] natura l and man-made forc es that wer e potentially involved” and

8“desc ribe[d] in a phy sical sense how this incident occur red.” I n his aff

idavit, Worsham observe d that “[t] he direc tional orientation of [t he] rec rea tional beac h with respe ct to wind-g ener ated wave s, tidal

curr ents, and ship-g ener ated hy drody namic eff ects is unique in the upper Texas coastal re g ion, and does not exis t natura lly any wher e in Texas” and that, on t h e day of the incident, “[t] he manmade
structure (Texas City Dike) and beac h interac ted with the [natural] wave s and tidal curr ents to cause

ener g etic brea

king wav es and strong er curr ents, eac h of which was highly varia ble in streng th and direc tion.” He opined that “[t] he water motion in the form of wa v e action and curr ents initially

cause d the loss of footing of these two y oung victims and resulted in the rela tively rapid movement of the y oung victims from knee de ep wa ter into dee per r oug h water .” Af t er a h earing , the trial court denied Texas City ’s plea to the jurisdiction and motion for
summary judgme nt. Texas City filed an interlocutory appea l from the denial of its jurisdictional plea. See T E X
. C I V
. P R A C
. & R E M
. C O D E § 51.014(a) (8). The court of appea ls reve rsed the trial court’s order and rende red judgme nt dismiss ing Suarez’s claims for lack of jurisdiction. I n addition to other holdings that are not at issue on appea l, the court of appea ls held t hat the rec ord contained “no evidenc e [c re at ing] a fac tual dispute with reg ard to whether [Tex as City ] had actua l knowledg e or

awa rene ss of t he allege d unique and dang erous pr operty condition exi sting a t the beac h at t he ti me

o f t h e drowning deaths of Suarez’s family .” 2013 WL 867428, at *12. Acc ording ly , the cou rt conclude d that Suarez failed to bring a valid g ross-neg lige nce claim under the rec rea tional use statute and, as a result, Texas City

reta ined immunity

from suit. Id. Suarez moved for

panel a nd en banc rec onsideration. Although the court of appe als denied both motions, J ustice Key es, a non-pan el m em b er, dissented in an opinion challeng ing the court’s
9jurisdictional analy s i s . J ustice Key es stated that the court had improperly relied on prec edent

perta ining only to natura l conditions and incorre ctly applied the standard of revie w by cre diting infere nces in s u p port of Texas City rathe r than in favor of Suarez. ___ S.W .3d ____, No. 01-12- 00848-CV, 2013 WL 5913185, at *10-13 (Ke y es, J ., dissenting on reh’ g ). Be cause J ustice Key es’s dissent addre ssed the mer its of the panel’ s decision and e x pressly disag ree d with a question of l aw materia l to the decision, we ha ve jurisdiction over this i nterlocutory appea l. See A m. Type Culture Collectio n, Inc. v. Coleman , 83 S.W .3d 801, 805 (Tex. 2002) (citing T E X
. G O V ’ T C O D E § 22.225(b)( 4)). The issues on appe al to this Court are limit ed to the existence of e vidence to support Texas City ’s liability under the rec rea tional use statute as it perta ins to the Texas Tort Claims Act’s waiver of immunit y . The specific matters prese nted for our co n s i d er ati on are (1) the exis tence and
para meters of any duty to wa rn or protec t rec rea tional users from the conditions at the man-made beac h and (2) whether

there is some evidence that Texas City was grossly neg lige nt in discharg ing
any such duty

. II. Discussion A. G overnm ental Im m uni ty Absent a valid statutory or constitutional waiver , trial courts lack subject-matter jurisdiction
to adjudicate lawsuits ag ainst municipalities. City of W atauga v. Gordon , 434 S.W .3d 586, 589 (Tex. 2014); Tex. Dep’ t. of Parks & W ildlif e v. Miranda , 133 S.W .3d 217 , 2 2 4 (T ex . 2 004); Tex. Dep’ t of Transp. v. Jones , 8 S.W .3d 6 3 6 , 638 (Tex. 1999). The Texas Tort Claims Act waives immunit y from suit but only “to the extent of liability cre ated by [t he Act].” See T E X
. C I V
. P R A C
. &

1 0R E M
. C O D E § 101.025(a)

. The immunity waiver is theref ore inter twined with the merits of a claim under the Act. Under the Tort Claims Act, a g overnme ntal unit is liable for “per sonal injury and death so

cause d by a condition or use of

. . . rea l p ro p er t y i f t h e governme ntal unit would, wer e it a private
person, be liable to the claimant acc ording to T exas la w.” Id. § 101.021; see State v. Shumake , 199 S.W .3d 279, 283 (Tex. 2006). I n premises-de fec t case s, the g overnme ntal unit owes “only the duty [of car e] that a private person o we s t o a l icense e on private proper ty .” Id. § 101.022(a)

. When 4
proper ty is open to the public for “re cre ation,” howeve r, the rec rea tional use statute further limit s the
g overnme ntal unit’s duty by classify ing rec reational users as trespasse rs and limit ing liability for premises defe cts to claims involving g ross neg lige nce, malicious intent, or bad faith. Id. at § 75.002.
I n doing so, the statu t e el ev at es the burden of proof nece ssary to invoke the Tort Claims Act’s statutory waiver

. Id. §§ 75.003(d)- (g ) (the rec rea tional use statute neither cre ates liability nor waives

sovere ign immunit y , but “limits the liability of a g overnme ntal unit under circ umstances in which the
g overnme ntal unit would be liable u n d e r [t h e Tort Claims Act]”); 101.058 (the rec rea tional use statute controls to the extent it limit s a g overnme ntal unit’s liability under the Tort Claims Act). As used in the rec rea tional use statute, the term “re cre ation” includes a non-exclusive list of activities, including “swimming” and “picnicking .” Id. § 75.001(3). Suarez does not dispute that her family was eng ag ed in these activi t i es and that the rec rea tional use statute there fore applies. See City of Bellmead v. Torres , 89 S.W .3d 611, 614 (Tex. 2002).

E x c e p t i o n s a m p l i f

y i n g t h e g o v e r n m e n t ’ s d u t y e x i s t a n d w e r e a l l e g e d t o a p p l y i n t h i s c a s e . S e e T E X
. C IV
. P R A C
. 4 & R E M
. C O D E § 1 0 1

. 0 2 2 ( a ) , ( b )

. H o w e v e r , t h e c o u r t o f a p p e a l s d e t e r m i n e d t h o s e m a t t e r s a d v e r s e l y t o S u a r e z , a n d t h e y a r e n o t a t i s s u e o n a p p e a l t o t h i s C o u r t

. 1 1Fur thermore , Suarez does not alleg e that Tex as C i ty acte d with malicious intent or in bad faith; acc ording ly , Texas City “may be liable for g ross neg lige nce only to the extent that it owed

. . . a leg al duty .” See Kirw an , 298 S.W .3d at 623. Considering the interplay betwee n the Texas Tort Claims Ac t and the re cre ational use statute, Te x as City reta ins imm unity from suit a bsent evidenc e of circ umstances g iving ri s e t o a duty to war n or protec t coupled with the requisite mental state. Suarez contends that immunit y is waived beca use (1) Texas City had a duty to war n about or protec t
ag ainst the extreme and unusual d anger s cre ated by the interac tion of natura l forc es with the manmade dike and (2) there is some evidenc e Texas City acte d with g ross neg lige nce by failing to war n or protec t the dece dents from those c onditions. See Shum ake , 199 S.W .3d at 287-88.
B. Stand ard of Review Whether subject-matter jurisdiction exis ts is a question of law that can be challeng ed, as it was here , by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 554 (Tex. 2000).
We revie w de novo the dispositi on of Texas City ’s jurisdictional plea. Miranda , 133 S.W .3d at 226.
Be cause we addre ss a plea to the jurisdiction in which disputed evidenc e implicates both the court’s subject-matter jurisdiction and the merits of the case , we consider rele vant evidenc e submitt ed by the
p ar t i es t o d etermine if a fact i ssue ex ists. Id. at 227. We take as true all evidenc e favorable to the nonmovant, indulge ever

y rea sonable inferenc e, and resolve a ny doubts in the nonmovant’s favor

. Id. at 228. I f the evidenc e cre ates a fac t question reg arding jurisd i ct ion, the plea must be denied pending resolution of the fac t issue by the fa ct finder. Id. at 227–28. I f the evidenc e fails to r aise a question of fac t, howeve r, the plea to the jurisdiction must be g rante d as a matter of law. Id. at 228.

1 2C. Analysis

We ha ve bee n called upon on se vera l occa sions to ex amine whe n circ umstances exis ting in

a re cre ational setting g ive rise to a duty to war n or protec t. We have found such a duty wh en an artificia l condition crea ted a risk of harm that was latent and not so inhere nt in the rec rea tional use that it could rea sonably be anticipated. See Shumake , 199 S.W .3d at 281–82, 288 (re cog nizi ng a duty
to war n or protec t when a man-made structure —an underg round culver t—interac ted with the natura l perils associate d with river tubi n g t o cr ea t e a power ful undertow that sucked a nine-y ear -old g irl under water and t rappe d her in the culvert). On t he other hand, we have de clined to i mpose a duty for premises conditions that are open and obvious, reg ardle ss of whether such conditions are artificia l

or natura lly occur

ring

. See Kirw an , 298 S.W .3d at 623, 626 (conc luding that landowner had no duty
to war n about risk of falling associate d with sitti ng on cliff’ s edg e even th o u gh t h e p ar t icular risk—the collapse of the cliff—wa s unexpected); Flynn , 228 S.W .3d at 655, 659–60 (finding no duty
to w arn or protec t c y clist from visible oscillating sprinkler that knocked the plaintiff off her bike as she rode along a public t ra i l ). Fo r natura lly occur ring conditions, our jurisprudenc e sug g ests that obvious conditions include dang ers that are not nece ssarily visible but are inhere nt in the rec rea tional

use. Kirw an , 298 S.W .3d at 626. Although we have not direc tly addre ssed whether a duty arises with
respe ct to conditions that are natura lly occur ring bu t co n cea led and unexpected, we have said we could “e nvision” such a duty wher e a landowner knows of a hidden and dang erous natura l condition that is located i n an ar ea fre quented by rec rea tional users, where the landowner is awa re of death s or injuries rela ted to that particula r condition, and wher e the dang er is such that a rea sonable re cre ational user w ould not ex pect to enc ounter it on the prope rty

.

1 3Id. at 626.

Her e, we n ee d n o t consider whether Texas City had a duty to war n or protec t under the circ umstances alleg ed to exis t at the Dike beca use, even assuming the exis tence of such a duty , there is no evidence that Texas Cit y was g rossly

neg lige nt. As used in the rec rea tional use statute, g ros s n egl i gen ce has both objective and subjective components: (1) view ed objec tively

from the standpoint of the actor at the time of its occurr ence , the act or omission involves an extreme deg ree of risk, considering the probability and mag nitude of the potential ha rm to others; and (2) the actor has actua l, subjective awa rene s s of the risk involved, but never theless proce eds with conscious indiffe renc e to the rig hts, safety , or we lfare of others. Flynn , 228 S.W .3d at 660 (citing T E X
. C I V
. P R A C
. & R E M
. C O D E § 41.001(11)) ; Louisi ana-Pac. Corp.

v. Andrade , 19 S.W .3d 245, 246 (Tex. 1999). To raise a fac t issue reg arding g ross neg lige nce, there
must be leg ally sufficie nt e vidence that Texas City had actua l, subjective awa rene ss that conditions
at the beac h involved an extreme deg ree of harm but never theless was consciously indiffer ent to the rig hts, sa fety , or welfa

re of others. Flynn , 228 S.W .3d at 660. “[I ]n other words, the plaintiff must show that the def

endant kne w about the pe ril, but his acts or omissions demonstrate that he did not

ca re . ” Louisi ana-Pac. Corp. , 19 S.W .3d at 246–47. We assume for purposes of our anal y s i s t h at there is some evidenc e of an extreme risk considering both the probability and mag nitude of the harm. But Suare z’s claim fails nonetheless beca use t here is no evidenc e that Texas City was subjec tively

awa re of perils at the beac h that wer e bey ond the ken of a rea sonable rec rea tional user. See Bellmead ,

1 489 S.W .3d at 614 (in premises-de fec t case s, the risk or condition alleg ed must be the ca u s e of the

resulting injury).
To satisfy the subjective-know ledg e co m p o n en t of the g ross neg lige nce standard, the
g overnme ntal entity must have “knowledg e that the dang erou s condition exis ted at the time of the

acc ident.” City of Corsicana v. Stewart , 249 S.W .3d 412, 414–15 (Tex. 2008). Suarez’s alleg ation that Texas City had knowledg e of latent perils at the man-made Dike rests on circ umstantial evidenc e and infere nces alleg ed to arise from evidenc e that, prior to Hurric ane I ke, Texas City (1) had posted

war ning signs—including signs that said: “B eware . Under tow and wake , rip curr ents, and sink holes , ” “N o l i fe g uard on duty

. Swim at y our own risk,” and “Swim in desig nated are a only ”—but failed to r eplac e the signs afte r the hurrica ne; (2) ha d previously

provided a “desig nated swimming

are a” somewher e at the beac h but had not established such an are a afte r Hurric ane I ke; and (3) knew

an unspecifie d number of drowning deaths had previously occur red at unknown locations along the Dike over the course of an unspecifie d time period. To the extent this evidenc e raises any infere nce that the City knew uniquely perilous conditions exis ted at the beach (o r t h e Dike g ener ally ), the evidenc e is equally

consistent with mere know ledg e of r isks inherently associate d with open-wa ter swimming. As such, it is no evidenc e of subjective awa rene ss of and consc ious indiffere nce to the enhanc ed marine hazards alleg ed to have cause d or contributed to the d ro wn i ng deaths of Hec tor Suarez and his daug hters. See City of Keller v. W

ilson , 168 S.W .3d 802, 814 (Tex. 2005) (“When the circ umstances are equally consistent with either of two fac ts, neither fac t may be inferr ed.” (quoting
Lozano v. Lozano , 52 S.W .3d 141, 167 (Tex. 2001))).

1 5Circumstantial evidenc e can establish actua l knowledg e but such evidenc e must “either

direc tly or by rea sonable inf erence ” support that conclusion. Stewart , 249 S.W .3d at 415 (quoting State v. Gonzalez , 82 S.W .3d 322, 330 (Tex. 2002) ). An infere nce is not reasona ble, howeve r, if it is premised on mere suspicion—“some suspicion linked to other suspicion produce s only more suspicion, which is not the same as some evidenc e.” Marathon Corp. v. Pit zner , 106 S.W .3d 724, 727–28 (Tex. 2003) (citing Johnson v. Brewer & Pritchard, P.C. , 73 S.W .3d 193, 210 (Tex. 2002)). “When the evidenc e offe red t o p ro v e a v ital fac t is so wea k as to do no more than cre ate a mere surmise or suspicion of its exis tence , the evidenc e is no more than a scintilla and, in leg al ef

fec t, is

no ev idence .” Browning–Ferris, Inc. v. Rey na, 865 S.W .2d 925, 927 & n.3 (Tex. 1993) (quoting Kindred v

. Con/Chem, I

nc., 650 S.W .2d 61, 63 (Tex. 1983) ). An infere nce is not rea sonable if it is susceptible to multipl e, equally probable infere nces, requiring the fac tfinder to g uess in order to rea ch

a conc lusion. See F

ord Motor Co. v

. Ridgway , 135 S.W .3d 598, 601 (Tex. 2004) (citing Lozano v.
Lozano , 52 S.W .3d 141, 148 (Tex. 2001)); see also City of Keller , 168 S.W .3d at 814. Reviewing the rec ord in the light most fa vorable to Suar ez, w e conclude there is no e vidence Texas Cit y knew perilous con d i t i o n s exis ted along the Dike that exceede d those inhere ntly associate d with aquatic activities in open wa ter or be y ond what would re asonably be expected to e x ist. Suarez first relies on undisputed evidenc e that befor e Hurric ane I ke, Texas City had ere cted signs on the Dike wa rn i ng visitors about undertows, wake s, rip curr ents, and sink holes and cautioning them not to swim or to swim at their own risk. Although the admonitions on those signs

cer tainly imply an understanding of the perils associate d with en t er i n g t he water s surrounding the Dike, they ref

er to common marine hazards that a rea sonable rec rea tional user would know or expect
1 6to exis t, espec ially in are as where boaters and swimmers reg ularly interac t. They do not, perf orce , g ive rise to an infere nce that Texas City had actua l knowledg e of any conditions or risks bey ond those
open and inhere nt in open-w ater rec rea tional use. I ndeed, the signs do not even hint that conditions
at the beac h wer e of such mag nitude as to swee p awa y even non-swimmers wading in shallow water

. As we acknow ledg ed in Kirw an , landowner s may err on the side of safe ty by war ning v i s i t o rs o f dang erous natura l c onditions whe ther or not the landowner has any duty to pr ovide such war nings. 298 S.W .3d at 625–26. Other than g uesswork and conjec ture, the lang uag e used on the pre- Hurric ane I ke war ning signs g ives no purcha se to Suarez’s alleg ation that Texas City was awa re of an unusual, extreme, and c oncea led risk of ha rm at the Dike

. Suarez next points to the est ab l i s h ment and subsequent elimination of a “desig nated swimming ar ea” as evide nce tha t Texas Ci ty had knowledg e of da

ng erous c onditions i n the wate r. I n her brief, Suar ez contends that (1) Texas Cit y specific ally desig nated “saf e are as for swimming” befor e Hurric ane I ke, (2) no desig nated swimming are a was ree stablish ed after the hurrica ne, and (3 ) h er husband and daug hters drowne d in an are a previously desig nated for swimming. T h e infere nce S u ar ez s u g g ests is not clea r. She implies both that desig nating a swimming are a at the beac h supports an infere nce that swimming was rec ommended as being safe there and that the desig nated swimming are a wa s discontinued beca use it was not safe to swim at that location.
For some period of time, T ex as C i t y had ere cted a war ning sign on the Dike that rea d “No lifeg uard on duty

. Swim in desig nated are a only .” The sign may have been place d at the beac h, but the rec ord is unclea

r on that point. The location of the desig nated swimming are a is also specula tive, but may h ave been at the beac h and possibly in the are a wher e the drowning s occur red. But even
1 7assuming the fac ts are as Suarez alleg es, what infere nce do these fac ts g ener ate? One could equally

infer any of the following : (1) Texas City ’s knowledg e that swimming at any location at the Dike was abnorma lly dang erous; (2) Texas City knew that, whateve r conditions exis ted at the Dike, they wer e

no differ ent in the desig nated location; or (3) establishing a seg reg ated swimming are a was futile when pe ople ca

n and do ente r the wa ter a ll along the 10-mile shoreline.
Tom Kessler , Direc tor of Public Works, testified that the swim are a “wa sn’t there very long” ; “y ou’re swimming at y our own risk in that are a, too”; “[t] here was nothing specia l about it. I t was just set aside” ; “[t] he hazards wer e essentially the s ame [beca use] [ i] t’s the same bottom, the s ame

curr ents, same ever

y thing, other than it had some [py lons] around it”; and swimming occur red outside

as well as inside the desig nated s wi m m i n g ar ea when it exis ted. The only evidenc e in the rec ord
reg arding the purpose of the desig nated swimming are a is that it had been int en d ed t o reduc e the interac tion betwee n rec rea tional boater s and swimmers. May or Doy le testified that “[t] he py lon are a

was there to separ ate the boats, the catamara ns . . . from the swimmers.

. . . I t m ay h av e b ee n a desig nated swimming [area] but it cer tainly wasn’t the only swimming are a” beca use people “swim all over the dike.” Nothing more insidious could rea sonably be inf er re d fr o m the absenc e of a specia lly desig nated swimming are a af ter Hur rica ne Ike. Suarez next contends that Texas City knew dang erous conditions exis ted beca use people had previously drowne d at the beac h. Although Kessler aff irmed that “other drowning deaths on the dike [occurre d] befor e October 3, 2010,” the rec ord in this case is not compar able to other case s in which courts have found suffic ient evidenc e of know ledg e base d on evidenc e of pr ior incidents.

1 8I n Shumake , the city knew about the dang ers associate d with a man-made culver t beca use only day s befor e the incident, both a Parks Depa rtment employ ee and the Austin Parks Depa rtment wer e informed that three park patrons near ly drowne d in the same are a from the same undertow that killed the Shumakes’ daug hter. 199 S.W .3d at 281, 288. Simi larly , in City of Houston v. Cavazos , a child drowne d while attempting to cross a river over a concr ete slab partially cover ed in water

. 811 S.W .2d 231, 231 (Tex. App.—Houston [14t h Dist.] 1991, writ dism’d). The slab appea red to be cover ed with about a foot of murky water but the water conce aled a fiftee n-foot drop-of f at the concr ete slab’s edg e. Id. The child slipped, fell, and was car ried into deepe r water wher e he drowne d. Id. I n Cavazos , the
court found evidenc e of knowledg e based in part on testimony from two law-e nfor c e me n t o f fice rs that the dang ers at t h e l o cation wer e well known to the city

. Id. at 234-35. Both office rs stated unequivoca lly that the are a was dang erous and that war nings wer e imperative. Id. One of the office rs testified that he had persona lly posted war ning signs five y ear s befor e the child died, the signs wer e
not up at the time of the incident beca use the city had remove d them, and the city must ha ve known about the dang ers beca

use as many as three drowning s had occur red ever y y ear at the same location

over a seven -y ear period. Id. at 235; see also City of El Paso v. Zarate , 917 S.W .2d 326, 332–33 (Tex. App.—El Paso 1996, no writ) (f inding e vidence of knowledg e whe re a child near ly

drowne d in the same loca tion four y ear s ear lier).
Her e, the rec ord is devoid of simil ar evidenc e. Suarez prese nted no evidenc e descr ibing the number, nature , location, fre quency , or circ umstances of any previous drowning s over the fifty -y ear period the Dike has been ope n to the publ ic for rec rea tional purposes. No evidence ex ists that any previous drownings occurr ed under conditions simi lar, in any respe ct, to those conditions Suarez’s

1 9expert attributed to the deaths of Hec tor Suarez and his daug hters. I n fa ct , n o t hing in the rec ord

sug g ests tha

t a n y d r o w nings or near drowning s occur red with such fre quency or under such conditions that it would be rea sonable to infer actua l knowledg e of risks in excess of those normally associate d with coasta l-wate r rec rea tion. Considering the Dike’s siz e, the plethora of hazards inhere ntly prese nt there , and the leng th of time it has been ope n to the public, the bare fact t hat ot her drowning s have

occur red do es not cre ate a rea sonable infere nce that Texas City had subjective knowledg e of an extreme risk of har

m. Finally , Suarez cites deposition testimony from the curr ent may or, Matthew Doy le, who was responsible for deter

mining whether and to what extent to repla ce war ning signs at the Dike that wer e damag ed or destroy ed by Hurric ane I ke. Doy le admitted that he knew that wake s from passing ships could aff ect wave action along the Dike and that choppy water from wind, undertows, and rip tides incre ases the risk of drowning

. Ag ain, these are risks and conditio n s t h at wo u ld ordinarily be anticipated by rea sonable rec rea tional users interac ting with coas t al waters along a peninsula stretching five miles into Galveston B ay . The may or consistently asser ted t hat undertows “occ ur[] out in the water , period” and “[a]ny time y ou enter

the wate r, y ou’re taking on some kind of risk.”
Moreove r, whil e the may or acknowledg ed that the Dike a ffe cts the natura l conditions in t he wa ter, h e al s o as s erted the eff

ects wer e no differ ent from those other land masses would cause and, eve n without the Dike, dang ers would still exis t beca use “[w]e’re on the Gulf Coast.” N o knowledg e of the particula

r risk alleg ed can be inferr ed from mere knowledg e that marine activities are inhere ntly dang erous a

nd can be aff

ecte d by varia ble conditions.

2 0Construing the evidenc e and ever y rea sonable infere nce in Suarez’s favor , we conclude there is no evidenc e from which a rea sonable fac tfinder could conclude that Texas City possessed actua l, subjective awa

rene ss that the combined eff ect of the Dike’s siz e and location , along with the deposition of fine-g raine d sediment, altere d the natura l conditions in t he wa ter a t the beac h. There is likewise no evidenc e that Texas City knew about or appre ciated the g ravity of any dang er cre ated by the combined eff

ect of man-made and natur al conditions in the water at the bea ch. B eca

use t he evidenc e fails to raise a g enuine and materia l fac t issue concern ing g ross neg lige nce, Texas City
reta ins imm unity

from suit and the trial c ourt lacks jurisdiction over Suarez’s cla ims.
III. Conclusi on We hold Suarez failed to produce evidenc e sufficie nt to invoke the Texas Tort Claims Act’s waiver of immunit y from suit. We there fore aff irm the court of appea ls’ judgm en t d i s m i s sing the petitioner’s c laims for wa nt of jurisdiction.

____________________________________ Eva M. Guzman J ustice
Opin ion d elivere d: J une 19, 2015

2 1