Opinion issued March 7, 2013

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 12
- 00848
- CV

——————————— THE CITY OF TEXAS CI TY , Appellant V. EDITH SUAREZ, INDIVI UALLY AND AS SURVIVI NG PARENT OF AS AND SS, DECEASED, AN D AS SURVIVING SPOUSE OF HECTOR SUAREZ, DECEASED , Appellee

On Appeal from the 212th District Court Galveston County , Texas Trial Court Ca se No. 11CV1108

MEMORANDUM OPINION This case arises from a sad a nd tragic event: the drowning deaths of n i n e year - old twin girls, AS and SS, and their father, Hector Suarez . The drowning s2 occurred in Galveston Bay at a recreational area located on a dike owned and operated by the City of Texas City. Edith Suarez, the twins’ mother and Hector’s wife, filed suit against t he City asserting wrongful death and survival claims . She alleges that the City was negligen t and gross ly negligen t in failing to warn of certain premises hazards that she claims led to the deaths of her daughters and husband

. The City filed a plea to t he jurisdiction asserting that Suarez’s claims should be dismissed because they are barred by governmental immunity. The trial court denied the plea , and the City filed this interlocutory appeal

. 1 T he City present s one issue challenging the trial court’s denial of its plea to the jurisdiction. We reverse the trial court’s order denying the City’s plea to the jurisdiction and render judgment dismissing Suarez’s claims. Background Summary The Texas City Dike is a five

- mile

- l ong manmade structure surrounded on three sides by the waters of Galveston Bay. T he United States Corp of Engineers constructed the Dike in 1915 to protect the Texas City ship channel from siltation

. Through the passage of special legislation, the State of Texas conveyed title of the

1 See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014(a)(8) (Vernon 2012) (permitting interlocutory appeal from an order that “grants or denies a plea to the jurisdiction by a governmental unit”).3 Dike to the City of Texas City in 1931 . The l egislation required that the Dike be used only for public purposes. 2 In 1963, the legislature permitted the Dike to be used for recreational
purposes. Visitors to the Dike engage in activities such as boating, fishing, picnicking, and swimming. An asphalt road runs the length of the Dike. The Dike also has boat ramps, parking areas, and concrete picnic shelters. The Dike is owned, maintained, and oper ated by the City of Texas City

. The Corp of Engineers also uses a designated area on the north side of the Dike as a place to dispose of the sediment or “spoil” that it dredges from the ship channel. This designated spoil area has over time developed in to a man

- made beach. The Dike was heavily damaged during Hurricane Ike in September 2008. Relevant to this case, signs that had been posted on the Dike were destroyed during the hurricane. Among those signs were postings warning visitors to beware of water hazards such as undertow, rip currents, wakes from passing ships, and sink holes. Signs also warned that no lifeguards were on duty and that persons should swim in designated areas only

. For nearly two years after the hurricane , t he Dike remained closed to the public . During this period, the City made repairs and improvements to the Dike.

2 See Act “Granting Dike” to City of Texas City, 42nd Leg., R.S., Ch. 54, 1931 Tex. Spec. Laws 134.4 During the repair process, t he City d id not re place all of the signs that had, before the hurricane, warned of water ha zards. The City , however, did erect sign s at two of the Dike’s boat ramps warning of such hazards. These signs read in English and in Spanish: “Warning ! No Swimming

- Diving.” The signs also caution in English: “Beware [of] Undertow and Wake from Passing Ships.” On September 10, 2010, the Ci ty reopened the Dike to the public for recreational use. After the reopening, the C ity began charg ing a $5 per vehicle fee on weekends for non

- residents to enter the Dike

. The City’s residents, pedestrians , cyclists, and anyone entering during the week are not charged a fee. The $5 entry
fee is used for trash collection and maintenance of the Dike

. On Sunday, October 3, 2010, the Suarez family , including Edith Suarez , her husband, Hector, and their nine

- year - old twin daughte rs, AS and SS , went to the Dike to attend a family gathering. A fter paying the $5 entry fee , t he family parked their car near one of the concrete picnic shelters adjacent to the man - made beach

area on the Dike’s north side

. T he twin girls immediately entered the water from the beach

. Antonio Esquivel , who had also arrived at the beach for the family gathering, later testified in an affidavit as follows: While the vehicles were being parked, [AS] and [SS] in their street clothes began playing in the b each water. It was about 9:45 a.m. The depth of the water was at about their knee s. I saw both girls struggling against the water. It appeared that they were about 10 feet5 or so from the beach. I saw Hector r unn ing toward the water. I ran to the wate r. After entering the water, I could feel the pull of the current

. · I could see He c tor and [AS] in the wate r and tried to swim out to them

. I saw [AS] and Hector floating on their backs about 20 feet away. Because of the force of the current, [another man] who also tried to assist and I had to help each other back to the beach. AS, SS, and their father , Hector , drown ed

. Edith Suarez (“Suarez”) filed a wrongful death and survival suit against the City . In her petition, Suarez alleged negligence claims based on special d efect and premises defect. She also identified claims for gross negligence and attractive nuisance. Suarez alleged, inter alia, that the City was aware of hidden dangers existing in the water at the beach where her family drowned; name ly, she alleged that the City knew of the strong currents and

an unstable submerged beach surface . She asserted that the City had been negligent in permitting swimming at the beach and in failing to warn about the dangerous conditions associated with entering the water at th at location

. Suarez alleged that the C ity had actual knowledge of the dangerous conditions because it had erected signs prohibiting swimming in certain areas on the Dike . The signs warn ed of undertows and deep holes. Suarez aver red that the signage had been put up by the City “[b]ecause the area had been the subject of other drownings and swimming incidents.” She pointed out that these signs had been destroyed by Hurricane Ike. She further pointed out that , when it made repairs to the Dike , the City had not placed a warning sign at the beach where her family drowned.6 Suarez asserted that the legislature had waived the City’s governmental immunity in the Texas Wrongful Death Statute. Suarez alternatively alleged that the suit was permitted under the Texas Tort Claims Act and the Recreational Use
Statute. The City answered Suarez’s suit. In its answer, the City raised a plea to the jurisdiction asserting that the trial court lacked subject

- matter jurisdiction because the City ’s immunity from suit had not been waived. The City later filed a supplemental plea to the jurisdiction. The City argued that the Wrongful Death Statute does not waive its immunity. It also asserted that its immunity had not been waived under the Tort Claims Act . The City also argued that the Recreational Use Statute limit ed the duty of care the City owed to the Suarez family to th e duty owed to a trespasser

. The City asserted that Suarez had not pled sufficient jurisdictional facts , and it challenged the underlying jurisdictional facts. In support of its plea, the City offered the affidavit of its Director of Public Works , Tom Kessler. Appended to Kessler’s affidavit are photographs of the signs installed by the City at three different boat ramps o n the Dike. The photos depict the signs installed at the boat ramps as they appeared before the hurricane and after the hurricane. The signs show that , after the hu r ricane , the City replaced signs at
two separate boat ramps warning people not to swim and informing them to beware of undertow and wakes from passing ships.7 Suarez filed a response to the supplemental plea. In support of her response,
Suarez offered the deposition testimony of the City’s mayor, Matthew Doyle, and the d eposition testimony of Tom Kessler. Suarez also offered the affidavit of a coastal engineering expert, William Worsham.
Suarez discussed Worsham’s testimony as follows: [Worsham] conducted a study of the incident forming the basis of this lawsuit with t he intent to characterize natural and man

- made forces that were potentially involved. Mr. W orsham reached several highly pertinent conclusions, including the following: • The Texas City dike is a man

- made feature. • The recreational beach upon which the subject incident occurred is a manmade feature placed adjacent to the dike

. • The material placed adjacent to the dike to form the beach was dredged from an adjacent navigation cha nn el and included fine

grained sediment that had the effect of making the submerged beach surface noticeably slippery when standing in the water. • The presence of tidal currents and wind

- generated waves interacting with the manmade beach on the morning of October 3, 2010, caused water motion adjacent to the beach shoreline of a magnitude sufficient to cause beachgoers standing in shallow water to lose their footing. • The cuspate or scalloped surface of the subject beach is characteristic of a beach that can generate seaward

- moving water motion known as rip currents when waves interact with the cuspate surface. • The d ike and manmade beach interacted with the waves and tidal currents naturally present to cause energetic breaking waves and stronger currents, each of which·was highly variable in strength and direction.8 • The breaking waves produced by this interaction were sufficient to cause young persons and adults to lose balance. The likelihood of losing balance increased rapidly in the surf zone, such that even water depths of less than two feet were capable of causing l oss of balance.

• The conditions found on the particular beach in question are unique in the upper Texas coastal region and do not exist naturally anywhere in Texas. Suarez asserted that Worsham’s testimony “contradicts the City’s contention that the w ave forces and current forces that con tributed to the drownings

. . . were entirely natural phenomena.” Suarez continued, It is not simply the risk of drowning in any body of water that lies at the heart of Suarez ’ s allegations. It is the risk of drowni ng in this particular body of water at this particular beach that was created under the authority of the City of Texas City; was owned, operated, and managed by the City of Texas City; and where rip currents and a “perfect storm” of man

- made and natural fo rces converged in a way that does not occur anywhere else on the Texas Gulf Coast. Suarez asserted that the City had an actual awareness of the hazards existing at the beach area. Suarez pointed to Mayor Doyle’s testimony indicating an awareness by the C ity that people swam “all around” the Dike. She also pointed to the mayor’s testimony in which he stated that the signs at the boat ramps cautioning people not to swim w ere intended to warn people not to swim anywhere on the Dike; the warnings were not intended to be limited to the boat ramp areas

. Suarez further asserted as follows in her response: The presence of signs in some locations and not others is an indication that the City was aware of the danger of rip currents. The City’s failure to replace warning signs [after the hurricane] is evidence9 of its indifference to that danger and, in particu lar, to the danger it posed to beach users. While Mayor Doyle points to signs warning users of the Dike’s boat ramps of undertows and rip currents, the City afforded no such warning to swimmers, the Dike ’ s most vulnerable users. Following a hearing, the trial court denied the City’s plea to the jurisdiction and its motion for summary judgment

. T his interlocutory appeal followed. The City raises one issue asserting that the trial court erred by denying its plea to the jurisdiction

. Plea to the Jurisdi ction A. Standard and Scope of Review 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 lo oking 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 whe n those facts may10 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 ju risdictional 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 dou bts in the nonmovant ’ s favor.” Id

. B. Texas Wrongful Death Statute Generally, the doctrine of governmental immunity protects political subdivisions, such as cities , from suit and liability. See Harris Cnty

. v. Sykes , 136 S.W.3d 635, 63 8 (Tex. 2004) ; Wich ita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 694 n.3 (Tex. 2003). Immunity from suit, as distinguished from immunity from liability, deprives a trial court of subject matter jurisdiction unless the government has consented to being sued. Miranda , 133 S.W.3d at 224; Tex. Dep’t of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). The governmental entity ’ s consent to suit allows the trial court to exercise jurisdiction over the lawsuit.
Jones , 8 S.W.3d at 638. A plaintiff bears the burden to affirmat ively demonstrate a trial court’ s jurisdiction by alleging a valid waiver of immunity, which may be either a reference to a statute or to express legislative permission. Id.11 Suarez alleged in her petition that the Wrongful Death Statute waives the City’s immunity. Section 71.002(b) of the statute provides, “ A person is liable for damages arising from an injury that causes an individual ’ s death if the injury was caused by the person ’ s or his agent ’ s or servant ’ s wrongful act, neglect, carelessness, unskill fulness, or default. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 71.002 (b) (Verno n 2008 ). The statute defines “ p erson” to mean “ an individual, association of individuals, joint

- stock company, or corporation or a trustee or receiver of an individual, association of individuals, joint

- stock company, or corporation. ” Id. § 71.001(2 ) (Vernon 2008 ). The statute further defines “corporation” to include a municipal corporation; that is, a city. Id. § 71.001(1 ). Applying these definitions, Suarez contends that the st atute waives the City’s immunity from suit because it provides that a city may be held liable for wrongful death damages. To waive immunity, the statute at issue must contain a clear and unambiguous expression of waiver. Rolling Plains Groundwater Conservation Dist. v. City of Aspermont , 353 S.W.3d 756, 759 (Tex. 2011) (citing T EX
. G OV ’ T C ODE § 311.034; Taylor , 106 S.W.3d at 696 )

. As pointed out by the City, the Wrongful Death Statute expressly states that it applies only if the individual injured would have been entitled to bring an action for the injury if the individual had lived

. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 71.003( a) (Vernon 2008 ).12 Here, AS, SS, and Hector Suarez would not have been entitled to bring an action against the City unles s they first showed that the City’s immunity from suit had been waived. See Miranda , 133 S.W.3d at 224

. Moreover, the Wrongful Death Statute can be reasonably construed as consistent with governmental immunity. The statute applies to private individual s and entities and municipal corporations alike ; thus, the statute is not without meaning when construed against an asserted waiver of immunity. See Rolling Plains Groundwater , 353 S.W.3d at 759 ; cf. Kerrville State Hosp. v. Fernandez , 28 S.W.3d 1, 8 (Tex. 2000) (holding that the anti

- retaliation statute had no meaning absent waiver of sovereign immunity)

. Even if the statute’s definition s of “person” and “corporation” created an ambiguity, we must construe ambiguities in a manner that retains immunit y. Rolling Plains Groundwater , 353 S.W.3d at 759

. We hold that the Wrongful Death Statute does not waive the City’s immunity from suit. C. Governmental vs. Proprietary Functions In her response to the City’s jurisdictional plea, Suarez asserted that a fact issue exists with respect to whether the City is immune from suit because its conduct of operating and managing the Dike i s a proprietary function rather than a governmental one, as the City argues. The Texas Constitution authorizes the Texas Legislature to “define for all purposes those functions of a municipality that are to be considered governmental13 and those that are proprietary

. . . .” T EX
. C ONST . art. XI, § 13; see Tooke v. City of
Mexia , 197 S.W.3d 325, 343 (Tex. 2006)

. A municipality engaged in a function defined by the legislature as governmental is entitled to governmental immunity absent a legislative waiver of immunity. Hudson v. City of Houston , No. 01

– 07

– 00939

– CV, 2011 WL 1376168 , at * 5 (Tex. App.

— Houston [1st Dist.] Jan. 13, 2011, pet. denied) ; see Tooke , 197 S.W. at 343

. In contrast, governmental immunity does not protect a city from suit when the claim arises from the performance of a proprietary function. See Dilley v. City of H ouston , 222 S.W.2d 992, 993 ( Tex. 1949); see also Tooke , 197 S.W.3d at 343. As a result, a city is liable to the same extent as a private party if it is negligent while engaged in the performance of a proprietary function. Gates v. City of Dallas , 704 S.W.2d 737, 739 (Tex. 1986); Hudson , 2011 WL 1376168, at *5. In the Texas Tort Claims Act (“TTCA”) , the legislature has described governmental functions as “those functions that are enjoined on a municipality by law and are given it by the state as part of the state’ s sovereignty, to be exercised by the municipality in the interest of the general public.” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.0215 (a) (Vernon 2011). On the other hand, the legislature has defined a proprietary act as an act performed by a municipality in its discretion, primarily for the benefit of those within its corporate limits rather than for the general public. Id . § 101.0215(b).14 In TTCA section 101.0215, t he legislature provide s a nonexclusive list of 39 municipal functions, cl assifying each function as either governmental or proprietary. See i d . § 101.0215 (a)

– (b). Among the designated governmental functions, the legislature listed “parks and zoos” and “recreational facilities, including but not limited to swimming pools, beaches, and marinas.” Id. § 101.0215(a)(13), (23). As interpreted by Texas courts and the l egislature, the terms “parks” and “recreation” have broad meanings. City of Plano v. Homoky , 294 S.W.3d 809, 814 (Tex. App.

— Dallas 2009, no pet.) (citing Lewis v . City of Fort Worth , 89 S.W.2d 975, 978 ( Tex. 1936 ) ). A municipal park has been defined
as “‘ a place where the public generally may go for various kinds of recreation and
amusement. ’ ” Id. (quoting Lewis , 89 S.W.2d at 978 )

. Parks are also tracts of land “‘ornamented and improved as a place of resort for the public, for recreation and amusement of the public.’” Id. (quoting King v. City of Dallas , 374 S.W.2d 707, 710 (Tex

. Civ. App.

— Dallas 1964, writ ref’ d n.r.e.) ). “ Recreational parks are governmental in design because their purpose is to promote and benefit the ‘ health and pleasure of the people at large. ’” Id. (quoting Wiggins v. City of Fort Worth , 299 S.W. 468, 471 (Tex. Civ. App.

— Fort Worth 1927), aff’d , 5 S.W.2 d 761 (Tex.
Comm ’ n App. 1928) ). By analogy , the legislature in the Recreational Use Statute has broadly defined “recreation” to include swimming, boating, picnicking, and15 “any other activity associated with enjoying nature or the outdoors.” T EX
. C IV
. P RA C
. & R EM
. C ODE A NN
. § 75.001(3)(C), (D), (F), (L) (Vernon 2011)

. It is not in dispute that the Dike is a place where the public at large goes to enjoy a variety of recreational activities , such as swimming, boating, and picnicking

. In other words, the Dike serves the same purposes as described in the broad interpretation that the law has given “parks” and “ recreation al facilities.”
See Homoky , 294 S.W.3d at 814 ( holding that operation of a golf course is encompassed within the gover nmental functions listed in the TTCA ). In addition , Suarez’s claims center on her allegation that the City negligently manage d the beach area where her family drown ed . The legislature expressly mentions “beaches” as a specific examp le of a recreational f acility. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.0215(a) (23). Given the broad interpretations afforded “parks” and “recreational facilities,” we conclude that the governmental functions listed in the TTCA encompass the City’s operation and management of t he Dike. See Homoky , 294 S.W.3d at 814

– 15. Nonetheless, Suarez contends that evidence indicates that the City’s operation of the Dike is not a governmental function because such operation is more akin to an “amusement,” which the legislature lists as a proprietary function.
See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.0215 (b)(2). Suarez points to M ayor Doyle’s testimony that the Dike is operated for the benefit of th e City’s residents.16 Suarez also points out that City charges non

- residents $5 to enter the Dike. She asserts that these payments benefit the City and its citizens. When read in context, however, the evidence shows that the entry fees are used by the Cit y for trash pickup and maintenance of the Dike. Thus, the evidence indicates that the entry fee benefits all who use the Dike , not just the City’s residents

. In any event, if a City ’ s actions are included as a governmental function in the TTCA , we have n o discretion, regardless of the City ’ s motives, to declare the actions as proprietary. Homoky , 294 S.W.3d at 814; Tex. River Barges v. City of
San Antonio , 21 S.W.3d 347, 357 (Tex. App.

— San Antonio 2000, pet. denied) ; see T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.0215(c) (providing that “ t he proprietary functions of a municipality do not include those governmental activities listed under Subsection (a) ”).
Hav ing concluded that the City’s management of the Dike fall s within the classification of governmental functions listed by the legislature in the TTCA , we are precluded from holding that any of the activities related to the management of Dike are proprietary. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.0215(c); see also City of San Antonio v. Polanco & Co. , L.L.C. , No. 04

– 07

– 00258

– CV , 2007 WL 3171360 , at *4 (Tex. App.

— San Antonio Oct. 31, 2007, pet. denied) (mem. op.) ; City of Weslaco v. Borne , 210 S.W.3d 782, 792

– 93 (Tex. App.

— Corpus Christi 2006, pet. denied). Because the City was engaged in a statutoril y defined17 governmental function , the City ’s immun ity from suit is retained, unless it has otherwise been waived by the legislature

. D. Tort Claims Act and Recreational Use Statute The l egislature has p rovided a limited waiver of governmental immunity from suit for certain tort claims under the Texas Tort Claims Act. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §§ 101.021, 101.025 (Vernon 2011 )

. The TTCA includes, among other things, a limited waiver of the state ’ s immunity from suits alleging personal injury or death caused by premises defects. 3 Id . §§ 101.021(2), 101.022. Here, Suarez’s petition raised allegations of premises defect. 4 See State

3 Suarez also alleged in her petition that her claim, in part, arose from a special defect in addition to a premises defect. A special defect is a subset of a premises defect. See Davis v. Comal Cnty

. C om’rs Court , No. 03

– 11

– 00414

– CV, 2012 WL 2989220, at *2 (Tex. App.

— Austin July 13, 2012, no pet.) (mem. op.). Under Texas law, whether a complained

- of condition is classified as a premise defect or a spec ial defect controls the entrant’ s status, which in turn determines the duty of care owed to the entrant by the governmental unit. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.022; City of Dallas v. Reed , 258 S.W.3d 620, 622 (Tex. 2008).

4 Suarez also alleges claims of general negligence and attractive n uisance in her petition. A plaintiff asserting a premises defect claim is limited to the TTCA provisions delineated by the section on premises defects and may not assert a general negligence theory. See Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W. 3d 217, 2 3 3 (Tex

. 2004). W e further note that the Tort Claims Act expressly excludes attractive nuisance as a basis for waiver of sovereign immunity. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.059 (Vernon 2011). In addition, Suarez alleges that the City’s immunity is waived based on its failure to replace certain warning signs after the hurricane. She alleged that this constituted a use of tangible personal property sufficient to waive immunity u nder TTCA section 101.021 (2). That section provides, in part, that a governmental unit is liable for personal injury or death caused by the use of tangible personal property. Id. § 101.021(2) (Vernon 2011). The Supreme Court of Texas has recently reiter ated, “I t is well settled that mere nonuse of property does not suffi ce to invoke section 101.021(2)’ s18 v. Schumake , 199 S.W.3d 279, 283 (Tex. 2006) ( citing TTCA provision waiving sovereign immunity for premises defect claim in case involving drowning death of child swimming in a state park river who was sucked u nderwater by a powerful undertow and trapped in man

- made culvert) ; see also City of Weston v

. Gaudette , 287 S.W.3d 832, 836 (Tex. App.

— Dallas 2009, no pet.) ( defining premises defect

as a d efect or dangerous condition arising from a condition of the premises )

. The type of duty owed to a plaintiff is part of the waiver analysis. City of Dallas v. Hughes , 344 S.W.3d 549 , 554 (Tex. App.

— Dallas 2011, no pet.) (citing
T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . §§ 101.021 , 101.022 )

. In premises

- defect cases, the governmental unit owes “only the duty that a private person owes to a licensee on p rivate property , unless the claimant pays for the use of the premises” in which case the duty owed is that owed to an invitee

. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 101.022(a) ; s ee City of Irving v. Seppy , 301 S.W.3d 435, 44 1 (Tex. App.

— Dallas 2009, no pet.); Garcia v. Sta te , 817 S.W.2d 741, 742 (Tex. App.

— San Antonio 1991, writ denied). The TTCA furth er modifies a governmental unit’ s waiver of immunity from suit by imposing the liability limitations prescribed in the R ecreational U se S tatute.

waiver. ” City of N

. Richland Hills v. Friend , 370 S.W.3d 369 , 372 (Tex. 2012). Here, Suarez’s allegation that the City failed to replace certain warnin g signs does not allege a use of tangible property but is an allegation of non

- use of such property. Accordingly, it does not fall within the waiver of immunity defined in section 101.021(2)

. See id. at 372

– 73.19 Miranda , 133 S.W.3d at 225 (citing T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.058). The Recreational Use Statu te limits the governmental unit’ s liability as a premises owner when the plaintiff engages in recreation on the premises. See
T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §§ 75.001

– . 0 0 3 ( Vernon 2011 & Supp. 2012 ) ; Stephen F. Austin State Univ. v. Flynn , 228 S.W.3d 653, 659

– 60 (Tex. 2007). In such a case, chapter 75 controls over the TTCA. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 75.003(g) ( providing that chapter 75 controls over chapter 101 to extent chapter 75 limits liability of governmental unit under circumstances in which governmental unit would be liable under chapter 101); i d. § 101.058 ( Vernon 20 11 ) ( providing same )

. When injury or death results on government

- owned, recreational land , the R ecreational U se S tatute limits the governmental unit’ s duty to that owed by a landowner to a trespasser. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 75.002(c)(2), (f) ( defining duty as that owed to trespasser); see Schumake , 199 S.W.3d at 283. Thus, when applicable, the R ecreational U se S tatute elevates the plaintiff ’ s burden to require a show ing of gross negligence, malicious intent, or bad faith. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 75.002(d); Flynn , 228 S.W.3d at 659.
Because it is not i n dispute that the Suarez family entered the Dike to engage in recreation, the Recreational Use Statute applies to limit the City’s liability

. See
T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 75.00 1 ( 3 ) (defining “recreation”) ; see also20 Homoky , 2 94 S.W.3d at 817. O ur analysis involves only the standard for gross negligence

. Suarez has not alleged that the City acted with malicious intent or in bad faith. Gross negligence is “an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.” Shumake , 199 S.W.3d at 287 (citing Transp. Ins. Co. v. Moriel , 879 S.W.2d 10, 21 (Tex. 1994 ) ). Gross negligence, as applied under the
R ecreational U se S tatute, involves two components: (1) viewed objective ly from the actor’ s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of risk invo lved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. See Miranda , 133 S.W.3d at 225. Speaking to the second subjective component, the Supreme Court of Texas has explained: “[W]hat separates ordinary negli gence from gross negligence is the defendant ’ s state of mind; in other words, the plaintiff must show that the defendant knew about the peril, but [its] acts or omissions demonstrate that [it] did
not care.” Louisiana

– Pacific Corp. v. Andrade , 19 S.W.3d 2 45, 246

– 47 (Tex. 1999) ; see also City of Corsicana v. Stewart , 249 S.W.3d 412, 414

– 15 (Tex. 2008) (holding that “actual knowledge” element of a premises defect cause of action21 requires knowledge that the dangerous condition existed at the time of the accident )

. In her petition, Suarez alleged that the City had actual knowledge of

“ dangerous currents and an unstable bottom .” Suarez alleged that, “[b]ecause the area has been the subject of other drownings and swimming incidents, the [City], in the pas t put up signs giving warning of undertows, deep holes and areas where swimming was not allowed.” Suarez also averred, There were dangerous currents and an unstable bottom that had been created through erosion, ship movements in the Houston ship channel and various weather conditions including hurricanes and storms over the years. In addition, there had been numerous drownings and swimming events to where [the City], knew dangerous conditions existed in the area where these drownings occurred.
Suarez ’s petition did not contain allegations that the City had knowledge of the unique danger resulting from a confluence of man

- made and natural conditions, which she later alleged in her response to the plea

. Rather, in her petition, she alleged only naturally occurring conditions as the premises peril causing her family to drown . This is noteworthy.
I n City of Waco v. Kirwan , the Supreme Court of Texas clarified the duty owed by landowners to recreational users under the R ecreational U se St atute, holding tha t a landowner does not generally owe a duty “to protect or warn against the dangers of natural conditions on the land.” 298 S.W.3d 618, 62 6 (Tex. 2009); see also Tex

. State Univ

. – San Marcos v. Bonnin , No. 03

– 07

– 00593

– CV , 2010 WL22 4367013, at *4 (Tex. App.

— Austin Nov. 5, 2010 , no pet.) (mem. op.) (holding plaintiffs could not plead valid gross negli gence claim under R ecreational U se S tatute for failure to warn of a turbulent undertow , which led to their son’s drowning death because undertow was a naturally occurring condition ). In
Kirwan , the supreme court held that the City of Waco retained its governmental immunity in connection with a premises liability claim based solely on the collapse of a naturally occurring cliff in a city p ark

. Kirwan , 298 S.W.3d at 62 5

– 29. The Kirwan court drew a distinction between premises liability claims based solely on naturally occurring conditions and those based on artificial or man

- made conditions

. Id. at 622. The court distinguished its earlier holding in Shumake , a case in which a nine

- year - old girl, tubing in a state park river, had drowned after being sucked into a man

- made culvert by a strong undertow

. Id. ; see Shumake , 199 S.W.3d at 288. The Kirwan court noted that the claims in Shumake w ere not based on a naturally occurring condition as were the claims in Kirwan

. Kirwan , 298 S.W.3d at 622

. In its plea to the jurisdiction, the City relied on Kirwan , asserting that, because she was alleging her family drowned because of naturally occurring conditions, it had no duty to warn of those conditions. The City asserted that Suarez’s pleading a ffirmatively negated jurisdiction.23 When she responded to the City’s plea, Suarez effectively amended her allegations agai nst the City. In her response , Suarez stated , “ I t is not simply the risk of drowning in any body of water that lies at the heart of [her] allegations. It is the risk of drowning in this particular body of water at this particular beach.” She described t h e dangerous condition present at the beach as “a perfect storm of man

made and natural forces that converged in a way that does not occur anywhere else on the Texas Gulf Coast. ” Suarez relied on the affidavit of her expert , William Worsham, to explain th e unique perils existing at the beach. In his affidavit, Worsham explained that “[t] he presence of tidal currents and wind

- generated waves interacting with the manmade beach on the morning of October 3, 2010, caused water motion adjacent to the beach shor eline of a magnitude sufficient to cause beachgoers standing in shallow water to lose their footing. ” He explained that dredged sediment or “spoil , ” placed on the beach by the Corp of Engineers , had made the submerged beach slippery. Worsham opined that the beach had a cuspate or scalloped surface that generated rip currents. He stated that “[t]he d ike and manmade beach interacted with the waves and tidal currents naturally present to cause energetic breaking waves and stronger currents, each of which·was highly variable in strength and direction. ” According to Worsham, “ The breaking waves produced by this interaction were sufficient to cause young persons and adults to lose balance. The likelihood of24 losing balance increased rapidly in the surf zone, such that even water depths of less than two feet were capable of causing loss of balance .”
Suarez also point ed to evidence offered in the jurisdictional proceedings showing that , before Hurricane Ike, the City had erected signs at various locati ons on the Dike warning visitors to swim only i n designated areas and cautioning them to beware of undertows and rip currents

. In her response, Suarez wrote, “The presence of signs in some locations and not others is an indication that the City was

aware of the danger of rip currents.” As the City pointed out, Suarez d id not explain , nor is it apparent , how such war nings indicate that the City had actual knowledge of the uniqu ely perilous conditions , cause d by a confluence of man

made and natural conditions , she allege d existed on the day of the drownings

. To the contrary, the signs warned of naturally occurring marine hazards commonly found in the ocean. The evidence showed that the City had placed the signs at various locations around the Dike but no evidence indicate d that a warning sign had at any time in the past been erected at the beach

. In addition, t he warning signs , to which Suarez point ed , were erected before the hurricane. The evidence showed that the Dike was damaged by the hurrica ne and then repaired. The evidence also showed that, since the hurricane, the Corp of Engineers had placed additional spoils on the beach area, indicating that the area had been changed since the signs were erected. In short, no reasonable inference25 may be drawn that the City had actual awareness of the alleged unique and perilous conditions present at beach at the time of the drownings based on its placement of

s igns warning of common marine haz ards at other locations on the Dike more than two years before the drowning deaths in this case

. Cf. Prairie View A & M Univ. v. Brooks , 180 S.W.3d 694, 707 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) ( holding that actual knowledge requires finding State knew of dan gerous condition that caused injury, not just proof State was aware of related condition creating danger)

. Manager of Public Works, Tom Kessler, did acknowledge in his deposition that there had been other drownings at the Dike before October 3, 2010 , an d some had involved children. He stated that he did not know how many drownings there had been. No evidence was presented or allegations made when the drownings had occurred, where they had occurred on the five

- mile

- long Dike, or under what circumstances they had occurred . The record contains no allegations or jurisdictional evidence that any drownings had been attributed to the unique conditions described by Worsham in his affidavit. See Kirwan , 298 S.W.3d at 625 (noting that, although it had received reports of other falls from cliffs in the park, the city had received no reports of a cliff crumbling, which was the dangerous condition underlying the plaintiff ’s premises claim); c f. Shumake , 199 S.W.3d at
2 81, 288 ( concluding that plaintiffs had alleged sufficient jurisdictional facts to26 show gross negligence in drowning case in which it was undisputed that the park had received complaints, only days before, of others that had nearly drowned from the same alleged risk at the sa me spot on the river)

. The record also contains affirmative evidence indicating that the City had no actual knowledge of the unique peril s Suarez alleges existed at the beach at the time of the drownings. Evidence was presented showing that the City had not commissioned any studies to determine the effect of the Dike on wave action or other naturally occurring conditions. Mayor Doyle testified in his deposition that the City had never conducted any type of analysis or risk assessment to determine whether there were dangerous currents that could affect swimmers at the beach

area. The mayor also testified that he was not aware that the presence of the Dike created rip currents. The evidence showed that Mayor Doyle was the person who made the decision with respect to what signs should be erected and where they should be erected. The record also shows that the drowning deaths occurred less than one month after the reopening of the Dike following its nearly two

- year closure

. After a review of the jurisdict ional evidence in the record , we conclude that there is no evidence that creates a factual dispute with regard to whether the City had actual knowledge or awareness of the alleged unique and dangerous property condition existing at the beach at the time of the drowning deaths of Suarez’s27 family. In other words, the record conclusively shows that the City did not have actual awareness of the unique peril. The record indicates that Suarez has been given a full and fair opportunity to develop the record in this case, having deposed city officials, obtained written discovery, and retained expert assistance in developing her claim. See Rusk State Hosp. v. Black , No. 10

– 0548 , 2012 WL 3800218, at * 6 (Tex. Aug. 31, 2012). We conclude that Suarez cannot bring a valid gross negligence claim under the R ecreational U se S tatute ; thus, the City’s immunity from liability for that claim is not waived. As a result, the City’s immunity from suit also remains intact. See
Kirwan , 298 S.W.3d at 629. We hold that the trial court erred when it denied the City’s plea to the jurisdiction. We sustain the City’s sole issue. 5
Conclusion We reverse th e order of the trial court and render judgment dismissing
Suarez’ s claims against the City of Texas City.

Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justices Higley and Brown.

5 We need not address other sub

- issues and arguments that the City raises in support of its plea to the jurisdiction

.