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Click here for the full text of this decision FACTS:A child drowned in a man-made culvert while swimming in the Blanco River in Blanco State Park. Her parents, Ricky and Sandra Shumake, brought suit against the state of Texas, acting through the Texas Department of Parks and Wildlife, and the Texas Department of Parks and Wildlife for their daughter’s wrongful death, alleging that the culvert was a special or premises defect and a nuisance or attractive nuisance. The Shumakes contended that the Texas Tort Claims Act waives sovereign immunity for their claims. The Parks Department filed a plea to the jurisdiction disputing any waiver of immunity under the tort claims act for nuisance or attractive nuisance and alleging that the Recreational Use Statute, which applies to recreational activities such as swimming, removed any waiver for special or premises defects. Texas Civil Practice and Remedies Code Chapter 75. The Shumakes countered that the benefits of the recreational use statute were not available to the Parks Department because it had charged them an entrance fee; therefore, they insisted that the tort claims act’s waiver of immunity for special or premises defects preserved their claims. The Shumakes alternatively pled that the Parks Department had breached the standard of care it owed their daughter under the recreational use statute. The Parks Department brings this interlocutory appeal challenging the district court’s denial of its plea to the jurisdiction. HOLDING:The court reverses the trial court’s denial of the plea to the jurisdiction as to the Shumakes’ claim of nuisance or attractive nuisance and render judgment that the Shumakes failed to establish a waiver of the Parks Department’s immunity for the Shumakes’ nuisance or attractive nuisance claims. The court holds that the recreational use statute is constitutional and applies even though the Parks Department charged an entrance fee, but the court affirms the denial of the plea to the jurisdiction as to the premises defect claim because the Shumakes have established a waiver of immunity by alleging facts that if proved might establish gross negligence under the duty of care owed to a known trespasser. The court concludes that the Shumakes’ nuisance cause of action does not come within any exception to sovereign immunity. The court sustains the Parks Department’s first issue and holds that the district court erred in denying the plea to the jurisdiction as to the nuisance and attractive nuisance claims. The court holds that the recreational use statute applies to all governmental units, even when they charge a fee for entrance. This reading of �75.003(c) is compelled by the opening phrase that the paying and non-paying distinction shall not be applied to a governmental unit. Moreover, the statutory measure of “nominal fees” has meaning only in the context of private landowners: fees will not take a landowner out of the protection of the recreational use statute unless the total fees collected in the previous calendar year exceed the ad valorem taxes assessed on the property. If the court tried to apply this section to a governmental unit, this measure of nominal fees becomes nonsensical because governmental units do not pay ad valorem taxes. The distinction between landowners who charge a significant entry fee and those who charge a nominal fee cannot be applied to governmental landowners; thus, the court follows the statute’s plain-language directive that �75.003(c) does not apply to governmental units. Even though the Shumakes paid a fee to enter Blanco State Park, under the recreational use statute the Parks Department owed them only the duty owed to a trespasser. The court is persuaded that the recreational use statute does not bar all premises defect claims. The Restatement of Torts outlines limited exceptions to the naked trespasser duty of care that are sensible, conceptually supported by precedent and that do not conflict with the underlying policy of the recreational use statute. Only failure to remove or warn of artificial conditions of which the landowner is actually aware or the failure to remove or warn of artificial conditions that are seriously dangerous in the vicinity of the known trespassers, of which the landowner is or should be aware, may constitute gross negligence under the recreational use statute. It is clear that landowners, private and governmental alike, who open their property for recreational use know that people are entering their land. In reality, the entrants are licensees on the landowner’s property. The Legislature, however, has decided to impute the trespasser duty of care in these circumstances in order to encourage landowners to open their property for recreational uses. The supreme court has stated that landowners may not commit gross negligence against the public. In the case of a park that invites the public to enter for recreational purposes or charges a fee for entrance, the governmental landowner has knowledge that the public will be on the land. The court relies on the second Restatement of Torts, and the supreme court’s general definition of gross negligence, to impose on landowners a higher duty of care to known trespassers injured by artificial conditions that pose a risk of serious bodily harm of which the landowner knows or should know. In the Shumakes’ case, the Parks Department knew that entrants tubed and swam in the river and that the artificial condition of their own making � the culvert under Park Road 23 � had threatened the lives of at least three people before Kayla Shumake’s death. It is clear that the Shumakes have sufficiently alleged facts that, if proved, may establish gross negligence under the standard of care owed to known trespassers. Thus, the Shumakes have met their burden of establishing a waiver of immunity sufficient to defeat the plea to the jurisdiction on their premises defect claim. The Shumakes seem to argue that allowing governmental landowners and private landowners to maintain a different duty of care in the same situation would violate a plaintiff’s equal protection rights. The court answers that the state maintains its sovereign immunity unless the legislature expressly waives it. The Legislature may waive it to any degree it wishes. The consequence of all sovereign immunity is to treat the sovereign differently than the private individual by protecting the sovereign from both suit and liability except in specifically enumerated situations where the legislature has waived sovereign immunity. An equal protection argument is misplaced in this context. OPINION:Smith, J.; Kidd, B. A. Smith and Puryear, JJ. Kidd, J., concurs.

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