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Click here for the full text of this decision FACTS:During a family visit to the park, a nine-year old child, Kayla Shumake, drowned while swimming and tubing in the Blanco River. Kayla was allegedly sucked underwater by a powerful undertow and trapped in a man-made culvert that diverted the water under a nearby park road. The Shumakes later learned that only days before Kayla’s death three other park patrons had encountered the same undertow and nearly drowned due to the same conditions. These events were communicated to both an employee of the Texas Parks and Wildlife Department and to the Austin office department. The Shumakes sued the state of Texas, claiming, among other things, that the wrongful death of their daughter was caused by a special or premises defect. They asserted that when the river’s waters were high, the culvert was concealed, creating an dangerous undertow. They further alleged that the department was aware of this dangerous situation, having received reports of other recent near-drownings involving the same area, but failed to make the culvert safer or warn of the danger. The Shumakes finally alleged that the department’s failure to act involved an extreme degree of risk, considering the probability and magnitude of the potential harm to swimmers and thus had breached even the modest duty of care owed to them as trespassers under the recreational use statute. The department filed a plea to the jurisdiction, seeking dismissal of the Shumakes’ claims for lack of subject matter jurisdiction, urging, among other things, that the recreational use statute barred their premises defect claims by eliminating the waiver of governmental immunity provided by the Tort Claims Act for such claims. The trial court denied the plea, and the department took an interlocutory appeal. The court of appeals affirmed the trial court’s denial of the plea to the jurisdiction, concluding that the Shumakes had adequately pled a premises liability claim against the state within the Tort Claims Act’s waiver and that the recreational use statute, although reducing the duty of care, did not otherwise affect that waiver. HOLDING:Affirmed. Texas Civil Practice & Remedies Code �75.002(d) quite plainly provides that the classification of a recreational user as a trespasser was not intended to “limit the liability of [a landowner] who has been grossly negligent or has acted with malicious intent or in bad faith.” Had the Legislature merely intended to adopt the trespasser standard, this limitation would not have been necessary. The standard of �75.002(d) and the trespasser standard are therefore not the same. Nothing in the language of the statute indicates that the Legislature intended that gross negligence should have a special or limited meaning. Because it is not defined otherwise, the court concludes that the Legislature must have intended for gross negligence to have its commonly-accepted legal meaning. Because gross negligence may result from acts or omissions, and �75.002(d) does not distinguish between injuries caused by conditions and activities, the court concludes that �75.002(d) permits a premises defect claim for gross negligence. The Shumakes’ pleadings were sufficient to state a premises liability claim under the recreational use statute, the court concludes. OPINION:Medina, J.; Jefferson, Hecht, O’Neill, Green and Johnson, J.J., joined. Wainwright, J., filed a concurrence. Brister, J., filed a dissent. Willet, J., did not participate. CONCURRENCE:Wainwright, J. “[T]he Legislature is in a superior position to determine the conditions and dangers of the State’s parks, as well as the Department’s ability to warn of perils or make them safe. From this position of greater knowledge, the Legislature made its decision and drafted the recreational use statute as a limited waiver of the State’s sovereign immunity. Even if we disagreed with the Legislature’s assessment of parkland risks, we are bound by the Legislature’s choice and should not displace it with our own.” DISSENT:Brister, J. “The people of Texas face a choice with respect to wild lands: we can leave them like they are and trust visitors to use reasonable caution, or we can flatten them and fill them with signs for the safety of those few who might not. The Recreational Use Statute favors the former. Because today’s decision does not, I respectfully dissent.”

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