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Click here for the full text of this decision FACTS:The Lanana Creek Trail is a community trail open to the public for walking and cycling. Part of the trail crosses Stephen F. Austin State University’s (SFA) campus. SFA has granted an easement to the city of Nacogdoches for this use. Diane Flynn was riding her bike on the trail and crossing the SFA campus when she was hit by a stream of water from an oscillating sprinkler. The force of the water knocked her off her bike, causing her injury. The sprinkler was part of an inground irrigation system on SFA’s campus and this particular sprinkler head was on SFA’s shot-put field about four feet from the trail. Flynn sued SFA for damages under the Tort Claims Act, alleging that her injuries were proximately caused by SFA’s negligent use of real property, negligent operation of the premises, negligent activity and gross negligence. SFA filed a plea to the jurisdiction and motion to dismiss on grounds of sovereign immunity or that it was entitled to protection under the recreational use statute, because it had granted the public permission to use its property for recreational purposes. The trial court denied SFA’s plea to the jurisdiction, and SFA perfected an interlocutory appeal. The 12th Court affirmed the trial court’s order, concluding that Flynn had sufficiently alleged a premises defect for which the Tort Claims Act waived sovereign immunity and that neither the discretionary powers exception to the Act nor the recreational use statute barred Flynn’s claim. SFA appealed to the Texas Supreme Court. HOLDING:Reversed and rendered. The Tort Claims Act, the court stated, generally waives the state’s immunity from suit for certain tort claims involving automobiles, premises defects, or the condition or use of property. Even under these circumstances, however, the act preserves immunity for discretionary decisions under the “discretionary powers” exception to the waiver, found in Texas Civil Practice & Remedies Code �101.056. The exception’s purpose, the court stated, is to avoid judicial review or interference with those policy decisions committed to the other branches of government. The provision generally preserves immunity not only for the state’s public policy decisions but also for the state’s failure to act when no particular action is required by law. When the government in the exercise of its discretion decides to act, the court drew a distinction between the negligent formulation of policy, for which sovereign immunity is preserved, and the negligent implementation of policy, for which immunity is waived. The 12th Court concluded that SFA’s decision to irrigate its campus was a policy decision for which immunity was preserved but that Flynn’s complaint about SFA’s operation of the irrigation system over the trail during peak periods of public use was the negligent implementation of that policy. The court found that the 12th Court correctly concluded that the decisions concerning when and where the water was to spray were operational- or maintenance-level decisions, rather than policy formulation. Thus, the court held the acts that allegedly caused Flynn’s injury fell outside the scope of the discretionary powers exception. The court then examined whether Texas Civil Practice & Remedies Code ��75.001-.004, the recreational use statute, protected SFA. The 12th Court concluded that by granting the city of Nacogdoches an easement through its campus, SFA “ceased to be an owner or occupier of the land in question” and forfeited its control over those who might use the trail for recreational purposes, thereby giving up the statute’s protection. The court disagreed with the 12th Court’s conclusion, because an easement does not convey title to property. Rather, it is a “nonpossessory interest that authorizes its holder to use the property for only particular purposes.” Thus, even though SFA dedicated a public easement over its campus for use as a recreational trail, it retained ownership of the underlying fee. As the owner of the property, the court stated, SFA retained its status as a member of the class protected by the recreational use statute. Accordingly, the court held that a landowner who dedicates a public easement for recreational purposes is entitled to the protection of the recreational use statute. Finally, the court found that Flynn failed to demonstrate gross negligence necessary to survive the higher burden of proof required by the recreational use statute. OPINION:Medina, J., delivered the opinion of the court, in which Jefferson, C.J., and O’Neill, Brister, Green and Johnson, JJ., and in all but Part III of which Hecht, Wainwright and Willett, JJ., joined. CONCURRENCE:Hecht, J., filed a concurring opinion, in which Wainwright and Willett, JJ., joined. “Having decided that Stephen F. Austin State University is immune from Diana Flynn’s lawsuit because it was not grossly negligent in irrigating its campus the way it did, which is a prerequisite for liability under the Recreational Use Statute, the Court need not consider whether the University was also immune from suit because its conduct fell within the discretionary function exception to the Texas Tort Claims Act’s waiver of immunity.”

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