EDITH SUAREZ, INDIVIDUALLY AND AS SURVIVING PARENT OF A.S. AND S.S., DECEASED, AND AS SURVIVING SPOUSE OF HECTOR SUAREZ, DECEASED v. THE CITY OF TEXAS CITY, 13-0947 (Tex. June 19, 2015)
This interlocutory appeal granting a municipality’s plea to the jurisdiction in a premises liability case arising from the drowning deaths of three family members at a man-made beach.
The deaths of a young father and his twin daughters occurred in the waters adjacent to the Texas City Dike, a man-made peninsula jutting 5.4 miles into Galveston Bay off the coast of Texas City. The Dike was initially created more than 100 years ago to help preserve the Texas City Ship Channel from excessive siltation. The United States Army Corps of Engineers constructed the Dike to help stop the flow of silt into the channel. To maintain the ship channel, the Corps of Engineers regularly dredges the channel and deposits dredged materials consisting of fine-grain sediment at a “spoil area” on the north side of the Dike. Over time, the spoil area has developed into a man-made beach. The State conveyed ownership of the Dike to Texas City which uses it, in part, for recreational purposes. After Hurricane Ike in 2009, not all warning signs were replaced, but many were. On October 3, 2010, less than a month after the Dike re-opened to the public after Ike, Edith and Hector Suarez visited the Dike along with their nine-year-old twin daughters. No area was designated for swimming at the beach, and no signs prohibited swimming or warned of swimming dangers at that location. At some point, apparently due to the slippery nature of the beach material, and the currents, the father and twin daughters drown. The mother sued te. The City filed a plea to the jurisdiction which the trial court denied but the Court of Appeals reversed.
Suarez advanced under the Recreational Use Statute based only on a gross-negligence claim. To raise a fact issue regarding gross negligence, there must be legally sufficient evidence that Texas City had actual, subjective awareness that conditions at the beach involved an extreme degree of harm but nevertheless was consciously indifferent to the rights, safety, or welfare of others. The Court assumed there was some evidence of an extreme risk considering both the probability and magnitude of the harm. However no evidence exists in the record that Texas City was subjectively aware of perils at the beach that were beyond the ken of a reasonable recreational user. The fact Texas City had signs warning of dangerous conditions at the beach were nothing more than the same present for open-water and natural beaches. While prior drownings have occurred, no number, nature, location, frequency, or circumstances of any previous drownings is present to implicate they are comparable. An inference of evidence is not reasonable if it is susceptible to multiple, equally probable inferences, requiring the factfinder to guess in order to reach a conclusion. As a result, no evidence exists of a subjective awareness of danger which is required for a gross-negligence finding. The dismissal is therefore affirmed.