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Click here for the full text of this decision FACTS:Brad McGehee was sitting on the edge of Circle Point Cliff in Cameron Park, a park owned and operated by the city of Waco, when the ground beneath him gave way and he fell approximately 60 feet to his death. Debra Kirwan, McGehee’s mother, individually and as representative of McGehee’s estate brought a wrongful death suit against the city, alleging a premises defect. The city filed a plea to the jurisdiction. The trial court granted the plea, holding that Kirwan had not: 1. “alleged that the Defendant was grossly negligent in creating a condition that a recreational user would not reasonably expect to encounter in Cameron Park in the course of permitted use;” or 2. “raise[d] a genuine issue of material fact.” Kirwan appealed the trial court’s judgment, arguing that: 1. the recreational use statute does not require that all premises defect claims be based on a condition created by the defendant; 2. the record contains more than a scintilla of evidence on each element of gross negligence; and 3. the trial court abused its discretion by sustaining the city’s objection to certain testimony and overruling Kirwan’s objection to certain photographs. HOLDING:Reversed and remanded. First, Kirwan argued that the trial court erred by sustaining the city’s objection to the testimony of Capt. Benjamin Samarippa and overruling her objection to photographs of Circle Point Cliff. During his deposition, Samarippa, a firefighter who responded to the scene of McGehee’s fall, testified that an average person would probably not understand that the ground could give way underneath them. The city objected, arguing that the testimony was speculative. Kirwan countered that the testimony constitutes admissible lay witness opinion. The trial court sustained the city’s objection. Under Texas Rule of Evidence 701, the court stated, if a witness is not testifying as an expert, his “testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” That an average person would not understand that the ground could give way, the court stated, was an opinion or inference reasonably based on Samarippa’s personal perceptions of the cliff conditions. The testimony assisted the trier of fact in determining whether the condition alleged is open and obvious, an ultimate issue in the case. Accordingly, the court found that the trial court abused its discretion by granting the city’s objection to Samarippa’s testimony. As for photographs of the cliffs, the court stated that a witness did not have to make the photographs, observe their making or know when they were taken. All that is necessary, the court stated, is testimony from a witness with personal knowledge that the photographs accurately depict what they are “claimed to be.” Next, Kirwan challenged whether the recreational use statute required that all premises defect claims be based on a condition created by the defendant, thereby barring any claim based on a natural condition. Based on a review of case law, the court held that the recreational use statute permitted premises defect claims based on natural conditions as long as the condition was not open and obvious and the plaintiff furnished evidence of the defendant’s alleged gross negligence. The court also found that Kirwan raised fact questions as to the city’s gross negligence. Before McGehee’s death, the court explained, the city had constructed a low wall obstructing access to the cliff and posted signs instructing patrons not to go beyond the wall. Kirwan, nevertheless, contended that the city acted with conscious indifference by failing to adequately warn or protect patrons of the specific danger of structurally unstable rock. The city’s existing signs, the court stated, indicate some “conscious concern” for the safety of park patrons. But the court found that the signs not only failed to warn of structurally unstable ground, but they failed to warn of any potential hazard. The court could not say that the signs were adequate as a matter of law. OPINION:Reyna, J.; Vance and Reyna, JJ. DISSENT:Gray, C.J., dissented without a written opinion.

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