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Click here for the full text of this decision FACTS:While visiting an outdoor swimming pool, which was owned by East Texas Baptist University and made publicly available for a nominal fee, Michelle Howard allegedly injured her back when the pool’s diving board “double bounced.” She contends the diving board’s fulcrum was improperly positioned, so one side of the board was unsupported and she was “propelled upward in an unstable manner and in an unexpected direction.” Howard alleges that her automatic attempt to correct herself in midair resulted in injuries to her back. Howard initially sued ETBU June 1, 2001. As in the present lawsuit, ETBU filed a motion for summary judgment, which was set for submission May 31, 2002. Howard filed a motion for non-suit May 23, 2002. On July 5, 2002, Howard refiled her suit against ETBU alleging causes of action for premises liability, negligence, and gross negligence. ETBU answered Aug. 6, 2002, and filed its motion for summary judgment two days later. On Sept. 5, 2002, the day before the setting for submission on the motion for summary judgment, Howard filed an opposed motion for continuance that was subsequently denied. On Nov. 25, 2002, the trial court granted ETBU’s motion for summary judgment. Howard now appeals, contending summary judgment was improper and the trial court erred in denying her motion for continuance. HOLDING:Affirmed. The court concludes that, by using the terms “entire premises” and “the premises” within the same test, the Legislature intended the meaning of the latter to be the same as the former. In other words, the use of the words “the premises” merely refers back to and takes on the meaning of the more specific term, “entire premises.” This interpretation comports with other courts’ assessments of the Legislature’s general intent in enacting the recreational use statute. The court concludes that, by using the terms “entire premises” and “the premises” within the same test, the Legislature intended the meaning of the latter to be the same as the former. In other words, the use of the words “the premises” merely refers back to and takes on the meaning of the more specific term, “entire premises.” This interpretation comports with other courts’ assessments of the Legislature’s general intent in enacting the recreational use statute. The evidence simply does not suggest that, considering the probability and magnitude of the potential harm to others, there was an extreme degree of risk involving the diving board’s use or that ETBU was aware of, or acted with conscious indifference to, any risk involving the rights, safety, or welfare of its patrons. The summary judgment was properly granted. The court holds it was within the trial court’s sound discretion, when considering the motion for continuance, to consider the time lapsed, and the actions taken and not taken, during pendency of the first suit. OPINION:Morriss, J.; Morriss, C.J., Ross and Carter, JJ.

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