IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0515

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Stephen F. Austin = State=20 University, Petitioner,

Diane Flynn,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Twelfth = District of=20 Texas

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Argued October 19,=20 2006

Justice Medina delivered the = opinion of=20 the Court, in which = Chief Justice Jefferson, Justice = O=92Neill,=20 Justice Brister, Justice Green, and Justice Johnson joined, and in = all but=20 Part III of which Justice = Hecht, Justice=20 Wainwright, and = Justice Willett joined.

Justice Hecht filed a = concurring=20 opinion, in which Justice Wainwright and Justice Willett joined.

This=20 interlocutory appeal concerns a trial court=92s order denying Stephen = F. Austin=20 State University=92s (SFA) plea to the = jurisdiction and motion to dismiss. The court of appeals affirmed the = order,=20 holding that the Texas Tort Claims Act waived SFA=92s=20 sovereign immunity and that the recreational use statute did not apply. = 202=20 S.W.3d 167. Because we conclude that the recreational use statute does = apply to=20 this suit and does operate under the undisputed facts to bar the = plaintiff=92s=20 claim here, we reverse the court of appeals=92 judgment and render = judgment=20 dismissing the case.

The = Lanana Creek Trail is a community trail open to = the public=20 for walking and cycling. Part of the trail crosses SFA=92s campus, and the university has granted an = easement to=20 the City of Nacogdoches for this use. Diane Flynn = was=20 riding her bike on the trail, crossing the SFA campus, when she was hit = by a=20 stream of water from an oscillating sprinkler. The force of the water = knocked=20 her off her bike, causing her injury. The sprinkler was part of an = in-ground=20 irrigation system on SFA=92s campus, and = this particular=20 sprinkler head was on SFA=92s shot-put field = about four=20 feet from the trail.

Flynn sued=20 SFA for damages under the Tort Claims Act, alleging that her injuries = were=20 proximately caused by SFA=92s negligent use = of real=20 property, negligent operation of the premises, negligent activity, and = gross=20 negligence. SFA filed a plea to the jurisdiction and motion to dismiss, = arguing=20 that sovereign immunity had not been waived under the Tort Claims Act,[1] or, alternatively, that it was = entitled=20 to protection under the recreational use statute [2] because it had granted the = public=20 permission to use its property for recreational purposes.

The = trial=20 court denied SFA=92s plea to the = jurisdiction, and SFA=20 perfected an interlocutory appeal. See Tex. Civ. Prac. & Rem. = Code =A7=20 51.014(a)(8). The court of appeals affirmed the trial court=92s order, = concluding=20 that Flynn had sufficiently alleged a premises defect for which the Tort = Claims=20 Act waived sovereign immunity and that neither the discretionary powers=20 exception to the Act nor the recreational use statute barred Flynn=92s = claim. 202=20 S.W.3d at 175-76. SFA appeals, arguing again that its decision to = install an=20 irrigation system was a discretionary function within the bounds of the=20 discretionary powers exception to the Tort Claims Act or, alternatively, = that=20 the recreational use statute protects it from liability.

=20 Because this is an interlocutory appeal, we first consider the = issue of=20 our own jurisdiction. An interlocutory appeal is generally final in the = court of=20 appeals. Tex. Gov=92t = Code =A7=20 22.225(b)(3). There are exceptions, however, such as when the court=92s = decision=20 conflicts with a prior decision of another court of appeals or of this = Court.=20 Tex. Gov=92t Code = =A7=A7 22.001(a)(2),=20 22.225(c). Two decisions conflict for purposes of establishing our = jurisdiction=20 when the two are so similar that the decision in one is necessarily = conclusive=20 of the decision in the other.[3]

=20 SFA contends that we have jurisdiction because the court of = appeals=92=20 decision here conflicts with Guadalupe-Blanco River Authority v. = Pitonyak, 84 S.W.3d 326 (Tex. App.=96Corpus = Christi 2002,=20 no pet.). In that case, the Corpus Christi Court of Appeals rejected the = contention that a governmental unit might control the premises for = purposes of=20 waiving immunity under the Tort Claims Act and yet not sufficiently = control the=20 premises for purposes of the recreational use statute. See id. at = 339-40.=20

=20 The case concerned two men who drowned while boating in a bayou. = Their=20 survivors sued the state river authority whose jurisdiction included the = bayou.=20 The authority filed a plea to the jurisdiction which the trial court = denied.=20 Id. at=20 326. The court of appeals reversed, holding that the recreational use = statute=20 applied to protect the authority from liability even though the = survivors=20 pleaded a premises defect claim sufficient to support a waiver of = immunity under=20 the Tort Claims Act. Id. at 339-40, 45. The = survivors=20 argued that the recreational use statue did not apply because the bayou = was a=20 navigable waterway owned by the State, not the authority, and ultimately = under=20 the State=92s control. The court of appeals rejected as inconsistent the = argument=20 that the authority could be the relevant premises owner for purposes of = the Tort=20 Claims Act but not for purposes of the recreational use statute. = Id. at = 340.

=20 In this case, the court of appeals has taken a position similar = to the=20 argument rejected in Guadalupe-Blanco River Authority. The court = here=20 recognizes SFA as the owner of the defective premises for purposes of = waiver=20 under the Tort Claims Act, but redefines the premises for purposes of = the=20 recreational use statute. 202 S.W.3d at 175. This conflict is sufficient = to=20 invoke our jurisdiction. See Henry Schein, Inc. v.=20 Stromboe, 102 S.W.3d 675, 689 = (Tex. 2003) = (concluding=20 that one court need not expressly disavow the other court's decision for = conflicts jurisdiction to exist). We turn then to the merits of this = appeal.

III

=20 The Tort Claims Act generally waives the state=92s immunity from = suit for=20 certain tort claims involving automobiles, premises defects, or the = condition or=20 use of property. See Tex. Civ. = Prac.=20 & Rem. Code =A7=A7 101.001(3)(A)-(B), 101.021, 101.022, = 101.025;=20 County of = Cameron v. Brown, 80 S.W.3d 549, 554 = (Tex. 2002). = Even under=20 these circumstances, however, the Act preserves immunity for = discretionary=20 decisions under the =93discretionary powers=94 exception to the waiver. = Tex. Civ. Prac. & Rem. Code = =A7=20 101.056. The exception=92s purpose is to avoid judicial review or = interference=20 with those policy decisions committed to the other branches of = government.=20 Terrell v. State, 588 S.W.2d 784, 787 (Tex. 1979). The provision generally = preserves=20 immunity not only for the state=92s public policy decisions, but also = for the=20 state=92s failure to act, when no particular action is required by law. = See=20 Tex. Civ. Prac. & Rem. = Code=20 =A7 101.056; see also State of Texas v. San Miguel, 2 S.W.3d 249, 250-51 = (Tex. = 1999).

=20 When the government in the exercise of its discretion decides to = act,=20 however, a distinction is drawn between the negligent formulation of = policy, for=20 which sovereign immunity is preserved, and the negligent implementation = of=20 policy, for which immunity is waived. See Terrell, 588 S.W.2d at = 788;=20 see also City of Brownsville v. = Alvarado, 897=20 S.W.2d 750, 754 (Tex. 1995). This determination is a = question=20 of law. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. = 1999).

=20 The court of appeals concluded that SFA=92s=20 decision to irrigate its campus was a policy decision for which immunity = was=20 preserved, but that Flynn=92s complaint about SFA=92s=20 operation of the irrigation system over the trail during peak periods of = public=20 use was the negligent implementation of that policy. 202 S.W.3d at 176. = SFA=20 argues, however, that it retained immunity because the design of its = irrigation=20 system, including the placement of sprinkler heads, the force of the = water, and=20 the pattern of the spray were all discretionary decisions, involving the = design=20 of a public work. SFA equates its irrigation system to the design of a = public=20 highway and its safety features, which have been construed to be policy=20 formulation rather than implementation. See State of Texas v.=20 Miguel, 2 S.W.3d 249, 251 (Tex. 1999).

=20 We have more than one test =93for determining when questioned = conduct=20 involves a protected =91discretionary=92 determination.=94 19 William V. Dorsaneo III, Texas Litigation Guide =A7 = 293.12[7]=20 (2007). One such test distinguishes between policy-level decisions and=20 operational-level decisions. See, e.g., Terrell, 588 S.W.2d at = 788. Under=20 this test, one court has observed that the decision to release water = from a=20 spillway constitutes policy formulation for which the water district is = immune,=20 but that the subordinate decision of determining the volume of the = outflow is=20 policy implementation for which the district is not immune. Bennett = v.=20 Tarrant County Water Control & Improvement Dist. No. 1, 894 = S.W.2d 441,=20 452 (Tex. App.=96Fort Worth 1995, writ denied). Another test = distinguishes the=20 design of public works, for which there is immunity, from their = maintenance, for=20 which there is not immunity. See, e.g., County of Cameron, 80 = S.W.3d at=20 558. Thus, while the government is not liable for designing a bridge = without=20 lighting, it may be liable for failing to maintain the lighting on a = bridge=20 designed to be illuminated. Compare Tarrant County Water Control v. = Crossland, 781 S.W.2d 427, 433 (Tex. = App.=96Fort Worth=20 1989, writ denied), with County of Cameron, 80 S.W.3d at = 558.

=20 The court of appeals correctly concluded that the decisions here=20 concerning when and where the water was to spray were operational- or=20 maintenance-level decisions, rather than policy formulation. 202 S.W.3d = at 176.=20 Thus, the acts that allegedly caused Flynn=92s injury fall outside the = scope of=20 the discretionary powers exception.

=20 SFA also argues that Flynn=92s present claim is barred by the = recreational=20 use statute. See Tex. = Civ. Prac.=20 & Rem. Code =A7=A7 75.001-.004. The recreational use statute = recognizes=20 that landowners or occupiers, who open their property to the public for=20 recreational purposes, provide a public benefit. To encourage this use, = the=20 statute limits the liability of the =93owner, lessee, or occupant of = real=20 property=94 who =93gives permission to another to enter the premises for = recreation.=94 Id. =A7 75.002(c). By = dedicating this=20 easement for use as a recreational trail, SFA argues, it gave the = public,=20 including Flynn, permission to use a part of its campus for recreation = and is=20 therefore entitled to the statute=92s protection.

=20 The court of appeals disagreed, however, concluding that by = granting the=20 City of Nacogdoches an easement through its = campus, SFA=20 forfeited its control over those who might use the trail for = recreational=20 purposes and thereby gave up the statute=92s protection. 202 S.W.3d at = 175. The=20 court reasoned that: (1) by granting an easement over its campus, SFA = ceased to=20 be a member of the class protected by the recreational use statute; = i.e., ceased=20 to be an owner or occupier of the land in question; and (2) Flynn did = not need=20 SFA=92s permission to use the trail because = SFA did not=20 own or control the land at the time of her use. Id. at 174-75. We disagree = with both of=20 these reasons.

=20 First, we disagree that the easement removed SFA from the = protection of=20 the recreational use statute. An easement does not convey title to = property.=20 Marcus Cable Assocs. v. Krohn, 90 = S.W.3d 697,=20 700 (Tex.=20 2002). It is instead a =93nonpossessory = interest that=20 authorizes its holder to use the property for only particular = purposes.=94=20 Id.=20 (citing Restatement (Third) of = Property=20 (Servitudes) =A7 1.2 cmt. d). Thus, = even though=20 SFA dedicated a public easement over its campus for use as a = recreational trail,=20 it retained ownership of the underlying fee, and, as the owner of the = property,=20 SFA retained its status as a member of the class protected by the = recreational=20 use statute.

=20 We also disagree that Flynn=92s use of the recreational trail was = without=20 SFA=92s permission or that SFA=92s permission was unnecessary. Although the = recreational=20 use statute provides that an owner of real property is entitled to the = statute=92s=20 protection when it gives =93permission to another to enter for = recreation,=94 the=20 statute does not specify how that permission is to be granted. Tex. Civ. Prac. & Rem. = Code =A7=20 75.002(c). Nor does the statute require that the landowner = contemporaneously=20 acknowledge each use. Permission may instead be implied from a = landowner=92s=20 knowledge of, and acquiescence in, the public=92s use of its land for = recreational=20 purposes. See, e.g., Gulf, C. & S.F. Ry. Co. v.=20 Matthews, 88 S.W. 192, 197 (Tex. 1905) (a trespass tolerated for = a=20 sufficient period of time that the public believes it has the permission = to use=20 the property).

=20 It would be perverse to hold the formal dedication in this case=20 insufficient, particularly since recreation was the reason for the = dedication of=20 the easement in the first place. Indeed, to construe the statute so = narrowly as=20 to exclude SFA under these circumstances would be contrary to the = statute=92s=20 purpose of encouraging landowners to open their land for recreational = use by=20 limiting their liability. See=20 State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). = Accordingly,=20 we hold that a landowner who dedicates a public easement for = recreational=20 purposes is entitled to the protection of the recreational use statute. = See=20 Urban v. Grasser, 627 N.W.2d 511 (Wis.=20 2001) (applying Wisconsin=92s recreational use = statute to=20 protect landowners who grant easements for recreational purposes).

=20 The statute protects the landowner by providing that one who = permits the=20 use of its land for recreation does not assure that the premises are = safe for=20 recreational purposes and does not assume responsibility for the actions = of=20 those admitted to the property. Tex.=20 Civ. Prac. & Rem. Code =A7 75.002(c)(1), (3). The statute = further=20 protects the landowner from liability associated with the recreational = use of=20 real property by elevating the plaintiff=92s burden of proof. Id. = =A7=20 75.002(c)(2), (d). The statute effectively requires for liability either = gross=20 negligence or an intent to injure. See id. =A7 75.002(d) = (=93owner, lessee,=20 or occupant=94 must be =93grossly negligent=94 or =93act[] with = malicious intent or in=20 bad faith=94); see also Shumake,199 S.W.3d at 286-87.

=20 Here, Flynn generally alleges gross negligence. In her brief to = this=20 Court, Flynn asserts =93that SFA knew that the use of the sprinkler in = the manner=20 and at the time of said use posed a risk of serious injury to others, = including=20 the Plaintiff, but that SFA was grossly negligent in ignoring and = creating that=20 risk.=94 Flynn=92s response to SFA=92s plea = to the=20 jurisdiction and motion to dismiss provides no additional facts to = support her=20 claim of gross negligence. SFA asserted in its plea and motion that = Flynn=92s=20 allegations of gross negligence were conclusory and a=20 sham, attaching the deposition testimony of both Flynn and her = husband.

=20 Flynn=92s husband, Matthew, was also riding his bike on the day = of the=20 accident. When biking with his wife, he ordinarily rode ahead, = periodically=20 turning back to check on her progress. He therefore was the first to = encounter=20 the sprinkler on SFA=92s property.

=20 Matthew noticed the sprinkler oscillating in a clockwise = direction as he=20 approached SFA=92s shot-put field. He = estimated that the=20 sprinkler to be about four feet off the trail, arcing a stream of water=20 approximately 15 to 20 feet into the air. Approaching the sprinkler, he = ducked=20 under the water arc and continued on his ride. He apparently did not = view the=20 sprinkler to be a sufficient threat either to stop or to go back to warn = his=20 wife.

=20 As Flynn approached the shot-put field her husband was already = out of=20 sight. She also noticed the sprinkler and its water arc about nine or = ten=20 seconds ahead near the trail. It was her habit to focus attention on the = trail=20 about two or three feet ahead of her bike, however, and she did not = again notice=20 the sprinkler until she was almost upon it. She tried to veer away, but = it was=20 too late, and the water knocked her to the ground.

=20 In Shumake, we held that the=20 recreational use statute does not foreclose premises defect claims, but = rather=20 limits the landowner=92s liability by raising the plaintiff=92s burden = of proof to=20 that of gross negligence, malicious intent, or bad faith. Shumake, 199 S.W.3d at 285-87. We further = emphasized=20 that the statute=92s liability limitations should have meaning. Thus, we = observed=20 that landowners have no duty to warn or protect recreational users from = defects=20 or conditions that are open and obvious. Id. at 288. Moreover, we = observed that gross negligence is not synonymous with negligence, but = rather=20 requires the existence of an extreme risk of serious injury or death, = evaluated=20 both objectively and subjectively. Id. at 287.

=20 The Legislature has defined gross negligence as an act or = omission: (1)=20 =93which when viewed objectively from the standpoint of the actor at the = time of=20 its occurrence, involves an extreme degree of risk, considering the = probability=20 and magnitude of the potential harm to others; and=94 (2) =93of which = the actor has=20 actual, subjective awareness of the risk involved, but nevertheless = proceeds=20 with conscious indifference to the rights, safety, or welfare of = others.=94 Tex. Civ. Prac. & Rem. = Code =A7=20 41.001(11). The allegations in this case fail to demonstrate either that = the=20 sprinkler presented an extreme risk, that SFA was aware of the risk, or = that SFA=20 was consciously indifferent to the sprinkler=92s capacity to inflict = serious=20 injury. Moreover, Flynn concedes that she was aware of the sprinkler = before she=20 encountered it, and as we have already mentioned, the recreational use = statute=20 does not obligate a landowner to warn of known conditions. See = Tex. Civ. Prac. & Rem. = Code =A7=20 75.002(c)(2) (classifying recreational user as trespasser); cf. State = Dep=92t=20 of Pub. Highways & Pub. Transp. v. = Payne, 838=20 S.W.2d 235, 237 (Tex. 1992) (noting that for premises liability even = licensee=20 must prove no actual knowledge of the condition). Accordingly, we agree = with SFA=20 that Flynn=92s conclusory allegations of = gross=20 negligence are not sufficient to meet the standard imposed by the = recreational=20 use statute or to rebut the evidence attached to SFA=92s=20 motion to dismiss.

=20 In Miranda, we recognized similar deficiencies to be more = than=20 mere defects in pleading because they involve the state=92s sovereign = immunity.=20 Tex. Dep=92t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, = 227-28=20 (Tex. 2004). We further noted that because the recreational use statute = modifies=20 the Tort Claims Act=92s waiver of sovereign immunity, it is properly = part of the=20 government=92s plea to the jurisdiction and thus part of the = interlocutory appeal.=20 Id. at 224-25; see also Tex. Civ. Prac. & Rem. = Code =A7=20 51.014(a)(8) (granting governmental unit right to interlocutory appeal = from=20 denial of a plea to the jurisdiction). Here, the court of appeals erred = in=20 rejecting SFA=92s plea under the = recreational use=20 statute because no material factual dispute exists regarding its = application in=20 this case. Because the statute applies and operates under the undisputed = facts=20 to bar Flynn=92s claim, we reverse the court of appeals=92 judgment and = render=20 judgment dismissing the case.

=20 ____________________________________

=20 David M. Medina

=20 Justice

Opinion=20 delivered: June 29, = 2007

^[1]=20 See Tex. Civ. Prac. = & Rem.=20 Code =A7=A7 101.021, 101.056.

^[2]=20 See Tex. Civ. Prac. = & Rem.=20 Code =A7=A7 75.001 - .004.

^[3]=20 In 2003, the Legislature broadened this Court=92s jurisdiction over = interlocutory=20 appeals by redefining conflicting decisions to include an = =93inconsistency in=20 their respective decisions that should be clarified to remove = unnecessary=20 uncertainty in the law and unfairness to litigants.=94 Tex. Gov=92t Code =A7 = 22.225(e). This case=20 was filed before the effective date of that legislation and thus our = former=20 definition applies. See, e.g., Tex. Dep=92t of Parks = &=20 Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex.=20 2004).