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Click here for the full text of this decision FACTS:Justin and Cody West, brothers, and a third teenager went to a Crandall playground during summer vacation in 1999. Though Justin and the third teen used the swing set without incident, when Cody used it, the unanchored set tipped over and fell on Justin, injuring him. Justin and his mother sued the city for negligence, alleging attractive nuisance, res ipsa loquitur and gross negligence. To counter the immunity argument they knew the city would raise, the Wests stated that the city was engaged in a proprietary function in maintaining the park, and that Justin’s injuries stemmed from the city’s use of tangible property. During discovery, the city said that at the time of Justin’s accident, the city was engaged in moving certain playground equipment, including the swing set, from one part of the park to another. During the move, the swing set was laid on its side to discourage people from using it until installation was complete. The city filed traditional and no-evidence summary judgment motions, alleging multiple grounds with multiple sub-parts. An affidavit from a firefighter who responded to the call for emergency help stated Cody told him that he and Justin had uprighted the swing set and then used it. In response, both boys denied that they had done that, or that they had told anyone that they did. The Wests said these conflicting stories presented a fact issue under either the Recreational Use Act or the Tort Claims Act. The Wests did not address the arguments related to attractive nuisance or res ipsa loquitur. The trial court granted the city’s motion without specifying the ground, and the Wests appeal, challenging the court’s ruling only on the Recreational Use Act and Tort Claims Act issue. HOLDING:Affirmed. The court states that the Recreational Use Act governs the negligence claim in this case since 75.003 specifically states that the RUA controls in cases otherwise governed by the TTCA. Under the RUA, the city does not assume a duty to the recreational users of its parks to assure the parks are safe for that purpose. To prevail in a claim brought under the RUA, the Wests would have had to raise an issue of material fact that the city had actual, subjective awareness of the risk involved in the unanchored swing set, but nevertheless proceeded with conscious indifference to the rights, safety or welfare of others. The court finds that, even if it assumes that placing the unanchored swing set back in the ground without warning was grossly negligent, the Wests still have failed to raise a fact issue concerning the city’s breach of duty. “[T]here is simply no evidence — whether direct or circumstantial — indicating either the City was responsible for replacing the unanchored swing set or the City knew the swing set had been replaced,” the court holds. OPINION:FitzGerald, J.; Morris, FitzGerald and Francis, JJ.

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