### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON REMAND

NO. 03-07-00593- CV

Texas State Univer sity–San Marcos, Appellant

v. Sam and B ett y Bonn in, In divid ually, an d as In dependent, Co-Adm inis trat ors of the Estate of Jason L ee Bonnin , Appellees

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 207 TH JUDICI AL DISTRICT NO. 05- 1738 , H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Sam and Be tty Bonnin bro u g ht a wrong ful death and survival action ag ainst appellant Texas State University

–San Marc os (TSU) in connec tion with the death of their son, J ason Bonnin. 1 TSU filed a plea to the jurisdiction, whic h the trial court denied. I n this interlocutory appea l, TSU arg ues t hat t he trial court erre d in deny ing its plea to the j u ri sdiction beca use t he Bonnins had not

es t ablished a waiver of sovere ign immunit y . On orig inal submissi on, we held that the Bonnins ’ pleading s did not establish jurisdiction, but that they wer e entitled to the opportunity to a mend the pleading s beca

use they did not aff

irmatively demonstrate incura ble jurisdictional defe cts. TSU filed

To avoid confusi on, we will ref er to the appellee s collectively as “the Bonnins,” and to 1 J ason B onnin individually as Jason.a petition for discretionar y revie w, and the supreme court vacated our opinion and rema nded the case back to this Court for rec onsideration in light of City of W aco v. Kirw an , 298 S.W

. 3d 618, 620 (Tex. 2009), a case decide d afte r our orig inal opinion was issued. I n ligh t o f t h e cl ar ification provided by Kirw an , we reve rse the trial court’s order deny ing the plea to the jurisdiction and rende r judgme nt dismiss ing all of the Bonnins’ claims ag ainst TSU for lack of subject-matter jurisdiction.

BACK GR OUND J ason Bonnin drowne d on April 21, 2005, afte r jumping fr o m t h e balcony of a restaur ant wher e he worke d into the water way at Spring L ake Dam on the TSU campus. Acc ording
t o the Bonnins’ pleading s, J ason’s death resulted from a turbulent undertow that pulled him i n t o underw ater cave rns locate d benea th the restaur ant. The Bonnins broug ht claims for neg lige nt use of rea l and persona l proper ty and the defe ctive condition of rea l and persona l proper ty , alleg ing that TSU cre ated an unrea sonably dang erous condition by making repa ir s t o t h e water way wher e the incident occur

red and fail i ng to block acc ess to the underw ater cave rns or war n others of their exis tence

. The B onnins also broug ht the following claim:

2

A condition of ag ricultural land or o ther proper ty used for rec rea

tional purposes, which posed an u n rea sonable risk of harm. Specifica lly Def endant TSU allowed and/or cre ated a defe ctive co n d i t i o n on the subject rea l proper ty when it knew, or should have kno wn , the proper ty would be used for rec rea tional purposes. By allowing such condition, Def endant TSU proximately

cause d Plaintiffs’ damag es.

T h e Bo n nins also broug ht claims ag ainst sever al other defe ndants. Be cause TSU is the 2 only defe ndant that soug ht dismis sal by the plea to the jurisdiction involved in this appea l, our dispositi on of this appea l does not aff ect the B onnins’ claims ag ainst the other de fenda nts. 2TSU filed a plea to the jurisdiction, arg uing that the Bonnins’ claims wer e barr ed by

sovere ign immunity . The trial c ourt denied the plea, a nd this int erloc utory

appea l followed.

STANDARD OF REVIEW Be cause this is an appea l from a plea to the jurisdiction, “we will revie w the fac e of appellants’ pleading s to deter mine whether they show a lack of jurisdiction or whether the pleading s, if liberally construed, favore d jurisdiction.” Atmos Energy Corp. v. Abbott , 127 S.W .3d 852, 855 (Tex. App.—Austin 2004, no pet.). Whether a trial court has subject-matter jurisdiction is a question of law we revie w de novo. W estbrook v. Penley , 231 S.W .3d 389, 394 (Tex. 2007). I f the pleading s do not a ffirma

tively demonstrate the trial court’s jurisdiction but do not a ffirma tively demonstrate incura ble defe cts in jurisdiction, the issue is one of pleading sufficie ncy and the plaintiffs should be aff orded the opportunity to amend. Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226-27 (Tex. 2004). I f the pleading s aff irmatively neg ate jurisdiction, then a plea to the jurisdiction may be g rante d without allowing a n opportunity

to amend. Id. at 227.

DISCUSSIO N Texas Tort Cl aims Act

I n its fi rs t i s s u e on appea l, TSU arg ues that the Bonnins have not sufficie ntly established a waiver of sovere ign immunit y under the Texas T ort Claims Ac t. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101

. 0 0 1 -. 1 0 9 (W est 2005 & Supp. 2010). The State and its ag encie s are g ener ally immune from suit, absent an express waiver of sovere ign immunit y . Miranda , 133 S.W .3d
at 224. Sovereig n immunit y is waived under t h e Texas Tort Claims Act for claims involving

3persona l injury or death if the plaintiff alleg es the injury was cause d b y t h e condition or use of

tang ible persona l property or re al prope rty . Tex. Ci v. Prac. & Rem. Code Ann. § 101.021. An exception to the waiver of sovere ign immunit y under the Texas Tort Claims Act exis ts for a g overnme ntal unit’s failure to perf orm an act or decision not to perf orm an act if the law leave s the perf

ormanc e or nonperf

ormanc e of the act to the discretion of the g overnme ntal unit. Id. § 101.056. TSU arg ues that beca use the Bonnins alleg e that the drowning occur red as the result of desig n decisions made by TSU in repa iring the dam, the exception for discretionar y acts applies and

sovere ign immunit y is not waived. To the extent that the Bonnins’ claims rela te to the repa irs made to the water

way by TSU, we a g ree . The Texas Supre me Court ha s held that the exception f or discretionar

y acts applies to the desig n of public works. See State v. Rodriguez , 985 S.W .2d 83, 85 (Tex. 1999) (“D esig n of any public work, such as a roadw ay , is a discretionar y function involving many policy decisions, and the g overnme ntal entity responsible may not be sued fo r s u ch decisions.”)

. “L ikewise, decisions about installing safe ty fea tures are discretionar y decisions for which the State may not be sued.” State v. Ramirez , 74 S.W .3d 864, 867 (Tex. 2002). Whil e co u rt s have held that the neg lige nt maintenanc e of public works is not subject to the except i o n fo r discretionar y acts, neg lige nt maintenanc e is not at issue her e. See Brown v. Texas De p’t of Transp. , 80 S.W .3d 594, 598 (Tex. App.—Corpus Christi 2000), aff’d , 80 S.W .3d 549 (Tex. 2002) (hol d i n g that failure to maintain
street lamps was not discretionar y act) ; Texas Parks & W

ildlif e Dep’ t v. Davis , 988 S.W .2d 370, 374 (Tex. App.—Austin 1999, no pet.) (holding that failure to remove deter iorated park bench was not discretionar

y act protected by Texas Tort C laims Act). Un l i k e the pl aintiffs i n Brown and Davis ,

4the Bonnins do not alleg e that TSU failed to maintain the water way afte r the repa irs wer e made, but attribute the injury to the initial desig n decisions reg arding the repa irs. As a result, we hold that the 3 Bonnins failed to establish a waiver of sovere ign immunit y for their claims of neg lige nt use of rea l and persona l proper

ty and defe ctive condit i o n of rea l and persona l proper ty , to the extent those claims rela te t o the waterwa y repa irs

. W e further hold that beca use t he pleadings reg arding these particula r claims rely on d esi g n decisions that are subject to the discretionar y acts exception, the pleading s aff

irmatively neg ate the exis tence of jurisdiction and the Bonnins need not be allowed an opportunity

to amend.

Rec reational Use Statute

The Bonnins also raise an additional p re m i s es defe ct claim that is unrela ted to the repa irs of the water

way , all egi n g t h at “TSU allowed and/or cre ated a defe ctive condition on the subject rea l proper

ty wh en i t k n ew, or should have known, the proper ty would be used for

rec rea tional pur

poses.” (Emphasis adde d.) I n alleg ing tha t TSU allowed a de fec tive condition on

rea l proper

ty , the Bonni ns bring a premises defe ct claim based on the turbulent undertow itself, rathe r than the desig n decisions rela ted to the water

way repa irs. Be cause this claim does not rely on

The Bonnins’ petition was acc ompanied by an aff idavit from an eng ineer ing expert, stating: 3 [I ]t is my opinion that the hy draulic pr operties of the spillway have c hang ed due to the repa irs that wer e p er fo rm ed o n the Spring L ake Dam Spill way in 2001. By ra i sing the bottom of the spillway chute with 14 inches, a chang e in the hy draulic proper ties of the water dischargi n g the spillway chute and enter ing the river has occur red.

. . . The 2001 repa irs to the dam could have reduc ed or elimi n at ed t h e dang erous condition had they been de signe d differ ently . For example, the original penstock cave rns benea

th J oe’s Crab Shack should have been cover ed or closed off as par t of this project. 5a desig n decision by TSU, it is not subject to the discretionar y acts exception to the Texas Tort Claims Act. I n order to deter mine whether sovere ign immunit y bars this claim, we m u s t ad d re s s TSU’s second issue, in whic h it arg ues that its sovereig n immunit y has not been waived under the

rec rea tional use statute. See Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-.006 (West 2005 & Supp. 2010); see also Stephen F. Austin State Univ. v. Flynn , 228 S.W .3d 653, 660 (Tex. 2007) (noting that “bec ause the rec rea tional use statute modifies the Tort Claims Act’s waiver of sovere ign immunit y , it is properly

part of the g overnme nt’s plea to the jurisdiction”)

. The Texas Tort Claims Act incorporates the limit ations of liability articula ted in the

re cr ea t i o n al use st atute int o a gover nmental uni t’s waiver of i mmunity from sui t. Tex. Civ. Prac. & Rem. Code Ann. § 101.058 (“To the extent that Chapter 75 limit s the liability of a g overnme ntal unit under circ umstances in which the g overnme ntal unit would be liable under this chapte r, Chapter 75 controls.”) ; Miranda , 133 S.W .3d at 225. The r ecr eational use statute states, in rele vant par t:

I f an owner , lessee, or occupa nt of real property

. . . g ives permission to another to enter the prem i s es for rec rea tion, the owner , lessee, or occupa nt, by g iving the permission, does not: (1) a ssure that the pr emises ar e saf e for that purpose; (2) owe to the person to whom permission is g rante d a g rea ter deg ree of car e than is owed to a tre spasser on the premises; or (3) assume responsibility or incur liability for any injury to any individual or proper ty cause d by

any act of the per son to whom permission is gra nted.

Tex. Ci v . P ra c. & Rem. Code Ann. § 75.002(c)

. Be cause the Bonnins, in bring ing their premises defe ct claim, alleg e that T S U “k n ew , or should have known, the proper ty would be used for

6rec rea tional purposes,” we will assume without deciding that the rec rea tional use statute applies to

the pre sent ca se.

The rec rea tional use statute limit s the landowner ’s duty for premises defe cts to that which is owed a tres p as s er —a duty not to injure t hat person willfully , wantonly , or t hroug h g ross neg lige nce. See Miranda , 133 S.W .3d at 225. “Theref ore, a g overnme ntal unit waives sovereig n immunit y under the rec rea tional use statute and the Texas To rt C l aim s Act only if it is g rossly neg lige nt.” Id. ; see also Tex. Civ. Prac. & Rem

. C o d e Ann. § 75.002(d) (re cre ational use statute does not limit liability wher e owner “has been g rossly neg lige nt or has acte d with ma licious intent or in bad fa ith”).

I n City of W

aco v. Kirw an , t h e T exas Supreme Court clar ified the duty owed by landowner s to rec rea tional users under t he recre ational us e st atute, holdi ng that a l an d owner does
not g ener ally owe a duty “to protec t or war n ag ainst the dang ers of natura l conditions on the land.” 298 S.W .3d at 627. As a result, the court held that the City of Waco’s sovere ign immunit y was not

wa ived in connec tion with a premises liability claim based solely on the collapse of a natura lly

occur ring cliff. Id. at 620. The B onnins’ premises de fec t claim rela ted to the turbulent undertow, like the claim in Kirw an , is based solely on an alleg edly dang erous natura l condition. See id. at 624 (discussing “a sever e undertow” in context of dang erous natura l conditions that would g ener ally not

cre ate duty

on part of la

ndowner ). On orig inal submissi on, we considere d the Bonnins’ claim based on the undertow to be simil ar to the claim at issue in State v. Shumake , 199 S.W .3d 279 (Tex. 2006). I n Shumake , the plaintiffs broug ht a pre mises defe ct claim afte r t heir daug hter drowned while swimming at a st ate

7park, alleg edly as a result of being sucked underw ater by a power ful undertow and trappe d in a manmade culver

t. Id. at 281. The supreme court conclude d that the plaintiffs’ pleading s wer e sufficie nt to state a premises defe ct claim that n o t only fell within the Texas Tort Claims Act waiver of

sovere ign immunit y , but also satisfied the heig htened standar d fo r l i abil ity imposed by the

rec rea tional use statute. Id. at 288.

I n Kirw an , howeve r, the supreme court drew a distinction betwee n premises liability claims based s o l el y o n natura lly occur ring conditions and those based on artificia l or man-made conditions, char acte rizing Shumake as the latter due to the alleg edly dang erous condition of the manmade c ulverts. Kirw an , 298 S.W .3d at 622. Specific ally , the cour t stated:

We ag ree that, while Shumake may have provided some g uidance , it did not direc tly answe r the que stion presented he re. The condition in Shumake was not a naturally occur ring one. See [119 S .W.3d] at 281 (a ddressing liability for dang er from manmade culver

t). Her e, howeve r, the fac ts prese nt a condition alleg ed to be both natura l and not open a

nd obvious. 4

Id. The court in Shumake did not addre ss the discretionar y acts exception found in section 101.056 of the Texas Tort Claims Ac t in connec tion with the desig n of the man-made culver ts, presumably beca use the issue was not raised by the parties. See generally 119 S.W .3d 279. I n the prese nt case , howeve r, the issue of the discretionar y acts exception has been raised and decide d in favor of TSU

on the Bonnins’ claims based on the water way repa irs. As a result, this case differ s from Shumake

The court emphasized that the condition at issue was not open and obvious beca use it had 4 previously stated in Shuma ke t h at landowner s have no duty to war n rec rea tional users ag ainst obvious defe cts or conditions. See State v. Shumake , 199 S.W .3d 279, 288 (Tex. 2006); see also id. (“B ut a landowner can be liable for g ross neg lige nce in cre ating a condition that a rec rea tional user would not rea sonably

expect to encounter

on the prope rty

in the course of the pe rmitted use.”)

. 8i n t hat the only claim rema ining to be considere d under the rec rea tional use statute is o n e b as ed

solely on the turbulent undertow itself, a natura lly occur ring condition. Given the supreme court’s 5 h o l d i n g t h at landowner s do not have a g ener al duty to war n or protec t rec rea tional users ag ain s t natura lly occur

ring conditions, the Bonnins ca nnot plead a valid g ross neg lige nce claim under the

rec rea tional use statute. See Kirwan , 298 S.W .3d at 620.

I n light of the fore g oing, w e hold that the Bonnins’ premises defe ct claim based on the turbulent undertow, like their claims based on the desig n of the water way , is barr ed by sovere ign immunit y . Fur

thermore , beca

use the Bonnins’ pleading s aff irm at i v el y neg ate the exis tence of jurisdiction, they

need not be aff

orded the opportunity

to amend. I n its third issue on appea l, TSU arg ues t h at the Bonnins failed to plead or prove a claim for neg lige nt use of tang ible persona l p ro p er t y . This arg ument is based on the Bonnins’ alleg ation that in making the repa irs to the water way , TSU was neg lige nt in installing “var ious persona l proper

ty in and around the water way .” TSU also asser

ts that the Bonnins may not proce ed on a g ener al neg lige nce c laim once a premises defe ct claim has been identified on the same fac ts. Given our conclusion that the Bonnins’ claims rela ted to t h e wa t erway repa irs fall under the discretionar

y acts e x ception and a

re the ref ore barre d by sovere ign immuni ty , we need not addre ss TSU’s third issue on appea l.

To the extent the Bonnins’ complaint reg arding the turbulent und e r to w c a n be char acte rized 5 as a premises defe ct claim based on the exis tence of the underw ater cave rns, that complaint would be for eclose d by

the discre tionary acts exception. The Bonnins’ own expert took the position that the nature of the underw ater cave rns was the direc t result of a desig n decision by TSU, opining that the 2001 repa irs to the water way should have been “desig ned differ ently ” by cover ing or closing off the ca verns. 9CONCLUSION We r ever se the trial court’s order deny ing TSU’s plea to the jurisdiction a nd rende r judgme nt dismi ssing the B onnins’ claims ag ainst TSU for lac k of subject- matter jurisdiction.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Diane M. H enson, Jus tice Be fore J ustices Patterson, Waldrop and H enson; J ustice Waldrop not participa ting Reverse d and Rende red on Rema nd Filed: Nove mber 5, 2010

10