1st Court of Appeals holds “actual knowledge” of a dangerous condition is required for beach deaths.
City of Texas City v Suarez, NO. 01-12-00848-CV, (Tex. Civ. App. – Galveston, March 7, 2013).
This is a Texas Tort Claims Act (“TTCA”)/ Recreational Use Statute (“RUS”) interlocutory appeal case where the Court of Appeals determined the City retained immunity for three drownings which occurred at a local beach. Three members of a family (father and twin daughters) drowned due to undercurrents in a beach created around a local dike. The Plaintiffs asserted that the Wrongful Death statute waived immunity, that the beach was an “amusement” and a proprietary function and that the City did not warn of known dangerous conditions which were manmade. The City filed a Plea to the Jurisdiction which the trial court denied. The Court of Appeals reversed.
The Court of Appeals applied fairly straight forward law in determining there is no waiver of immunity so there are no earthshattering rulings in this case. The important things to take away from this case are that the Court of Appeals provided a good outline and framework for dealing with determining proprietary v governmental as well as whether something falls under the RUS or the TTCA. In this case the RUS controls over the TTCA. Of particular interest is the challenge that the City knew of the dangerous conditions because it put out signs stating undercurrents exist, although not in the location of the deaths. The Court held that a waiver of immunity under the RUS requires the City to have actual knowledge of a dangerous condition, at the specific location of the drowning, on that particular day.
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