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Click here for the full text of this decision FACTS:The court of appeals is asked for rehearing and rehearing en banc in a premises defect case against the Department of Parks and Wildlife. The plaintiffs alleged gross negligence by the department in maintaining a danger to swimmers created by a man-made culvert. The court is being asked to reconsider its decision in light of Texas Department of Parks and Wildlife v. Miranda, No. 01-0619 (Tex. Apr. 2, 2004), which threw out a premises defect case based on “sudden branch drop syndrome.” HOLDING:Motions denied. The court concludes that its opinion is still valid under Miranda. The court interprets Miranda as acknowledging that a premises defect may properly be brought under the recreational use statute as long as the plaintiffs create a factual dispute regarding gross negligence with respect to the defect alleged. Unlike the Mirandas, the court finds that the plaintiffs in this case have alleged facts that if proved would establish gross negligence. The court finds significant that the defect in Miranda was one that was naturally occurring, whereas the defect in this case was artificially created. “Imposing this standard of care on a park that invites the Texas public to enter its premises for recreation is not at odds with the legislative intent of the recreational use statute.” OPINION:Smith, J.; before Law, C.J., Kidd, Smith, Patterson, Puryear and Pemberton, JJ. Justice Pemberton not participating.

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