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Click here for the full text of this decision FACTS:On March 30, 2002, the Morrises arrived at Goliad State Park in Goliad County. Shortly after arriving at the Park, M.M., a 3-year-old child, fell into a campfire ring allegedly containing hot coals or ash from a previous fire. M.M. suffered second- and third-degree burns requiring medical treatment. On Aug. 1, 2002, the Morrises brought suit in Webb County against the Texas Parks and Wildlife Department alleging common-law negligence. On Oct. 18, 2002, the Webb County trial court granted the department’s motion to transfer venue to Goliad County. Guided by the 13th Court of Appeals’ 2004 decision in State of Texas Parks & Wildlife Department v. Morris, the Morrises amended their petition on March 30, 2004, to include a gross negligence claim. In addition, on March 30, 2004, the last day of the two-year statute of limitations under Texas Civil Practice & Remedies Code �16.003(a), the Morrises named Sandra Carson as a defendant in the suit and asserted a claim of negligence against her. Carson, allegedly the last camper at the campsite before the Morrises arrived, filed a motion for summary judgment. Additionally, in response to the Morrises’ second amended petition, the department filed a plea to the jurisdiction. Following the filing of Carson’s motion for summary judgment and the department’s plea to the jurisdiction, the Morrises filed their third amended petition developing their gross negligence claim against the department and their negligence claim against Carson. They also responded to Carson’s motion and the department’s plea, to which both Carson and the department respectively replied. After hearing the plea to the jurisdiction and motion for summary judgment, the trial court granted both. The Morrises appealed. HOLDING:Affirmed. In their first issue, the Morrises contended that the trial court erred in granting the department’s motion to transfer venue to Goliad County. Examining the full record, the court found no essential fact or act that took place in Webb County giving rise to a cause of action or part of a cause of action. Thus, the court stated, the Morrises did not choose a county of proper venue and there is probative evidence in the record that venue is proper in Goliad County. Therefore, the court stated that it must uphold the trial court’s determination on the matter of venue. In their second issue, the Morrises contended that the trial court erred in granting the department’s plea to the jurisdiction, because material jurisdictional fact issues remained. Under the common law doctrine of sovereign immunity, the court stated, a governmental unit such as the department is immune from suit for the performance of governmental functions. Exceptions under �101.0215 allow for a limited waiver of the department’s sovereign immunity with respect to performance of its governmental functions in the use of publicly owned automobiles, premises defects and injuries arising out of conditions or use of property. Section 101.058, the recreational use statute, further modifies the department’s waiver of immunity from suit by imposing liability limitations as set out in the recreational use statute. The statute provides in pertinent part that if an owner, lessee or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee or occupant, by giving the permission, does not: assure that the premises are safe for the purpose, owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises, or assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted. Liability resulting from the breach of duty owed to a trespasser, the court stated, occurs when the premises owner causes an injury willfully, wantonly or through gross negligence. In this case, the court stated, the recreational use statute limited the department’s waiver of immunity, if any, to injuries caused through gross negligence. The court concluded that the Morrises did not overcome the burden of alleging facts that affirmatively demonstrated the trial court’s jurisdiction to hear the case. The court could not conclude the Morrises “would not reasonably have expected to encounter a campfire ring that contained ashes or coals from a fire made the night before, in the course of the permitted use of the property.” Under the facts of the case, the court concluded that the campfire coals were a condition inherent in the use to which the land was put. The department, the court stated, had no duty to protect the Morrises from this obvious and expected condition. Therefore, the court found that the department could not be grossly negligent, because the only duty it owed to the Morrises was that owed to a trespasser, which did not include ensuring the safety of the campsite. By their third issue, the Morrises contended that the trial court erred in granting Carson’s motion for summary judgment. To prevail on their negligence claim against Carson, the court stated, the Morrises must plead and prove that Carson owed a legal duty to the Morrises, that Carson breached that duty and that the Morrises suffered damages proximately resulting from that breach. The Morrises, the court stated, claim that Carson “was negligent in failing to do something which an ordinarily prudent person would have done under the same or similar circumstances which, in this case, would have been failing to totally extinguish the fire in the campfire ring when she left the camp site.” No Texas case law imposes liability on a camper, even an experienced camper, for damages allegedly caused by the previous camper’s failure to totally extinguish an in-ground, self-contained campfire at the camp site. Nonetheless, the court stated, the Morrises argued that Texas should recognize such a duty under the circumstances of this case. The court declined to do so. In reaching this conclusion, the court analyzed foreseeabilty, risk and likelihood of injury, social utility and the magnitude of the burden. The court concluded that by leaving a campfire burning in the campfire ring the night before the incident, it was foreseeable that Carson created a risk of harm to the next campers at that site. The court noted, however, that Carson left the hot coals in a place designated for fires at the campsite. Based on the facts of the case, the court found the risk and likelihood of injury “not high.” The injured child, the court stated, was with family members who themselves were campers at the park. The court then examined the social utility of Carson’s conduct. While the social utility for leaving a safe camp site is high, the court stated that “the social utility for leaving an unextinguished fire started the night before in a designated area so that the next camper can use it to start his or her fire is also high.” Finally, the court examined the magnitude of the burden of guarding against the injury and the consequences of placing the burden on Carson. The duty the Morrises wished to impose, the court stated, would apparently attach in any setting where controlled campfires are allowed. As a practical matter, the court stated, if such a duty attached a camper would have to decide whether to have a controlled campfire at all or to start the fire and then wait until the fire was totally extinguished before leaving. It is also unclear, the court stated, how a camper can reliably recognize when a campfire is “totally extinguished.” Thus, the court concluded that the magnitude and consequences of imposing this limited duty on a camper such as Carson were high. On balance, the court concluded, several factors favored the conclusion that there should be no duty to totally extinguish a fire in a campfire ring under the facts of the case, finding that social policies and concerns as well as the risk factor outweighed foreseeability. Therefore, the court concluded that Carson owed no legal duty to the Morrises to fully extinguish the campfire in the campfire ring, and that summary judgment for Carson was proper as a matter of law. OPINION:Rodriguez, J.; Valdez, J., and Rodriguez and Garza, J.J.

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