Appeals Court Reverses Field, Dismissing Spectator’s Claim against University

Feb 13, 2009

A Texas state appeals court has held that a trial court erred when it failed to use the Texas Recreational Use Statute in considering the claim of a baseball fan, who fell from the bleachers during a game and was injured.
Had the trial court applied the TRUS, the plaintiff would have been required “to allege or produce evidence of grossly negligent, willful, or wanton conduct by the university’s employees,” something the plaintiff was not prepared to do.
The incident occurred at a Sam Houston State University baseball game in April of 1998. Plaintiff Thomas Anderson was sitting at the top row of bleachers at the game when seat backing “gave way” as the result of metal fatigue, causing him to fall approximately six feet off the back row of the bleachers and to sustain a broken arm.
Anderson sued SHSU under the Texas Tort Claims Act, alleging a premises liability claim. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3303 (current version at TEX. CIV. PRAC. & REM. CODE ANN § 101.022 (Vernon Supp. 2008)). SHSU filed a plea to the jurisdiction and motion to dismiss, asserting that “(1) Anderson’s claims fall under the TRUS, and his failure to allege or produce evidence of grossly negligent, willful, or wanton conduct by SHSU’s employees deprives the trial court of subject-matter jurisdiction; and (2) Anderson cannot produce evidence that SHSU had actual or constructive knowledge that its bleacher was in the allegedly dangerous condition. SHSU reasserts those two issues in this appeal.”
The appeals court noted that “the controlling question in SHSU’s first issue is whether the Recreational Use Statute applies. The parties agree that the bleachers were a ‘structure’ for purposes of the statute’s application. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(2) (Vernon Supp. 2008). Where they disagree is whether Anderson was engaged in ‘recreation.’
“The statute, as it existed when Anderson was injured, itemized a number of activities as recreation, such as: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, cave exploration, waterskiing and other water sports, ‘any other activity associated with enjoying nature or the outdoors,’ and indoor hockey or skating at a municipally owned or operated facility. Act of May 15, 1989, 71st Leg., R.S., ch. 736, § 1, 1989 Tex. Gen. Laws 3299; Act of April 24, 1997, 75th Leg., R.S., ch. 56, § 1, 1997 Tex. Gen. Laws 124; Act of June 18, 1999, 76th Leg., R.S. ch. 734, § 1, 1999 Tex. Gen. Laws 3345 (current version at TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001(3)(A)-(P), 75.002(e) (Vernon Supp. 2008)).
“Our focus is on what activity Anderson was engaged in when he was injured. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002). He was sitting outdoors on bleachers while watching a baseball game. Therefore, the question is whether sitting outdoors on bleachers while watching a baseball game is the type of activity that the Legislature intended to include as recreation under the Recreational Use Statute. Id.”
The court looked closely a Torres, a situation in which “the plaintiff was sitting on a swing while watching a softball game at a municipal softball complex, and she was injured when the swing broke. Id. at 612; Torres v. City of Bellmead, 40 S.W.3d 662, 663 (Tex. App.–Waco 2001), rev’d, 89 S.W.3d 611 (Tex. 2002). In determining that the plaintiff’s sitting on a swing is recreation, the Supreme Court focused only on the plaintiff’s swing-sitting. Torres, 89 S.W.3d at 614-15. It did not factor in her purpose for sitting on the swing–to watch a softball game. We believe that the same result is warranted in this case.
“Anderson is correct that the Legislature included a list of specific activities as recreation and that watching competitive sports outdoors is not one of them. But the Legislature included ‘any other activity associated with enjoying . . . the outdoors,’ and that broad language evinces an intent to include myriad other activities as recreation. See Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. App.–Dallas 1993, writ denied); Martinez v. Harris County, 808 S.W.2d 257, 259 (Tex. App.–Houston [1st Dist.] 1991, writ denied) (same), overruled on other grounds by City of Dallas v. Mitchell, 870 S.W.2d 21 (Tex. 1994).
“Courts have found a number of unlisted activities to be recreation. E.g., Torres, 89 S.W.3d at 615 (sitting on a swing at city softball complex); City of Edinburg v. Vasquez, 2005 Tex. App. LEXIS 10255, 2005 WL 3312976, (Tex. App.–Corpus Christi Dec. 8, 2005, no pet.) (mem. op.) (using playground equipment in city park); City of Galveston v. Garza, 2003 Tex. App. LEXIS 7255, 2003 WL 21994741 (Tex. App.–Waco Aug. 20, 2003, pet. denied) (mem. op.) (acknowledging that parking or driving on pier was recreational); Garcia v. City of Richardson, 2002 Tex. App. LEXIS 5556, 2002 WL 1752219 (Tex. App.–Dallas July 30, 2002, pet. denied) (participating in informal soccer game while attending picnic and baby shower at city park); City of Lubbock v. Rule, 68 S.W.3d 853, 858 (Tex. App.–Amarillo 2002, no pet.) (“That journeying to a park to enjoy its facilities and playground equipment is akin to ‘picnicking’ . . . and within the category of an ‘activity associated with enjoying nature or the outdoors’ cannot reasonably be disputed.”), overruled in part on other grounds by State v. Shumake, 199 S.W.3d 279 (Tex. 2006); Flye v. City of Waco, 50 S.W.3d 645, 647 (Tex. App.–Waco 2001, no pet.) (acknowledging that use of playground equipment, a swing, at city park was within statutory definition of recreation); Kopplin, 869 S.W.2d at 441 (playing on playground equipment on city playground was “recreational activity” contemplated under recreational use statute); Martinez, 808 S.W.2d at 259 (swinging on swing-set in county park was “recreational activity” contemplated under recreational use statute).”
The appeals court added that the definition of “recreation” is also broad:
1. refreshment by means of some pastime, agreeable exercise, or the like,
2. a pastime, diversion, exercise or other resource affording relaxation and enjoyment.
“WEBSTER’S UNABRIDGED DICTIONARY 1613 (Random House 2001). And ‘pastime’ is defined as ‘something that serves to make time pass agreeably; a pleasant means of amusement, recreation, or sport.’ Id. 1419.
“We hold that Anderson’s sitting on bleachers at an outdoor baseball stadium and watching baseball is within the type of activity ‘associated with enjoying . . . the outdoors’ and is a form of recreation under section 75.001(3)(L).”
Sam Houston State University v. Thomas G. Anderson; Ct. App. of Texas, 10th Dist., Waco; No. 10-07-00403-CV, 2008 Tex. App. LEXIS 8614; 11/12/08


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