Supervisor at City operated summer day camp who accidentally hit minor in the eye with bat held not to be grossly negligent under recreational use statute

City of Conroe v. Tiffany Thomas, et al. 09-18-00215-CV (Tex. App. – Beaumont, October 11, 2018).

This is a recreational use/ gross negligence case where the Beaumont Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims.

Thomas, on behalf of a minor, referred to as CC, sued the City asserting a camp supervisor working at a City operated summer day camp, caused the minor injuries. Thomas asserts the supervisor had the children play baseball with a makeshift bat. The supervisor swung the bat, but struck the minor child causing him to lose sight in his left eye. The City filed a plea to the jurisdiction, which was denied. The City appealed.

The recreational use statute recognizes that landowners or occupiers, who open their property to the public for recreational purposes, provide a public benefit. The statute “absolves property owners of liability for injuries to others using the property for recreation so long as the property owner does not engage in grossly negligent conduct or act with malicious intent or in bad faith.” The relevant question is what the plaintiff was doing when he was injured. While the statute does not apply to competitive sporting events or spectators, it does apply to informal ball games associated with enjoying nature and the outdoors. The statute also includes indoor recreational activities that are conducted inside buildings and structures located on the governmental unit’s property.  The Plaintiff was participating in a free summer day camp operated by the City, and the purpose of the camp was to offer campers a safe and fun place to participate in camp activities. The fact that the camp supervisor conducted the ball game indoors due to weather conditions does not remove the recreational activity from the statute. Therefore, the Recreational Use Statute applies and the City’s immunity is waived only to the extent it was grossly negligent. “Gross negligence requires that the landowner be subjectively aware of, and consciously indifferent to, an extreme risk of harm.” The supervisor had organized an indoor softball game because it was raining outside, and the game included a padded bat and dodge balls. The camp supervisor testified that the game was not an organized athletic event, but merely a day camp game played to be interactive and entertaining. Prior to this incident, he was not aware of any safety complaints concerning the counselor nor any injury ever occurring during this type of camp activity. Such is not “gross negligence” and the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, Justices Kreger and Johnson.  Opinion by Chief Justice McKeithen.  The attorney listed for the Plaintiff is Edward Allen Mattingly.  The attorneys listed for the City are Heidi Gumienny and Steven D. Selbe.v

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