Subject: IN THE SUPREME COURT OF TEXAS
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Date: Sat, 30 Jun 2007 15:10:27 -0500

IN THE SUPREME COURT OF TEXAS

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No. 04-0515

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Stephen F. Austin State
University, Petitioner,

v.

Diane Flynn,
Respondent

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On Petition for Review from the

Court of Appeals for the Twelfth District of
Texas

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Argued October 19,
2006

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

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

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

I

The Lanana Creek Trail is a community trail open to the public
for walking and cycling. Part of the trail crosses SFA’s campus, and the university has granted an easement to
the City of Nacogdoches for this use. Diane Flynn was
riding her bike on the trail, 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 in-ground
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, arguing
that sovereign immunity had not been waived under the Tort Claims Act,[1] or, alternatively, that it was entitled
to protection under the recreational use statute[2] 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. See Tex. Civ. Prac. & Rem. Code §
51.014(a)(8). The court of appeals 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. 202
S.W.3d at 175-76. SFA appeals, arguing again that its decision to install an
irrigation system was a discretionary function within the bounds of the
discretionary powers exception to the Tort Claims Act or, alternatively, that
the recreational use statute protects it from liability.

II

Because this is an interlocutory appeal, we first consider the issue of
our own jurisdiction. An interlocutory appeal is generally final in the court of
appeals. Tex. Gov’t Code §
22.225(b)(3). There are exceptions, however, such as when the court’s decision
conflicts with a prior decision of another court of appeals or of this Court.
Tex. Gov’t Code §§ 22.001(a)(2),
22.225(c). Two decisions conflict for purposes of establishing our jurisdiction
when the two are so similar that the decision in one is necessarily conclusive
of the decision in the other.[3]

SFA contends that we have jurisdiction because the court of appeals’
decision here conflicts with Guadalupe-Blanco River Authority v. Pitonyak, 84 S.W.3d 326 (Tex. App.–Corpus Christi 2002,
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
waiving immunity under the Tort Claims Act and yet not sufficiently control the
premises for purposes of the recreational use statute. See id. at 339-40.

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

In this case, the court of appeals has taken a position similar to the
argument rejected in Guadalupe-Blanco River Authority. The court here
recognizes SFA as the owner of the defective premises for purposes of waiver
under the Tort Claims Act, but redefines the premises for purposes of the
recreational use statute. 202 S.W.3d at 175. This conflict is sufficient to
invoke our jurisdiction. See Henry Schein, Inc. v.
Stromboe, 102 S.W.3d 675, 689 (Tex. 2003) (concluding
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

The Tort Claims Act generally waives the state’s immunity from suit for
certain tort claims involving automobiles, premises defects, or the condition or
use of property. See Tex. Civ. Prac.
& Rem. Code §§ 101.001(3)(A)-(B), 101.021, 101.022, 101.025;
County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). Even under
these circumstances, however, the Act preserves immunity for discretionary
decisions under the “discretionary powers” exception to the waiver. Tex. Civ. Prac. & Rem. Code §
101.056. The exception’s purpose is to avoid judicial review or interference
with those policy decisions committed to the other branches of government.
Terrell v. State, 588 S.W.2d 784, 787 (Tex. 1979). 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. See
Tex. Civ. Prac. & Rem. Code
§ 101.056; see also State of Texas v. San Miguel, 2 S.W.3d 249, 250-51 (Tex. 1999).

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

The court of appeals 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. 202 S.W.3d at 176. SFA
argues, however, that it retained immunity because the design of its irrigation
system, including the placement of sprinkler heads, the force of the water, and
the pattern of the spray were all discretionary decisions, involving the design
of a public work. SFA equates its irrigation system to the design of a public
highway and its safety features, which have been construed to be policy
formulation rather than implementation. See State of Texas v.
Miguel, 2 S.W.3d 249, 251 (Tex. 1999).

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

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

IV

A

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

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

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

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

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

B

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

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

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

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

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

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

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

In Miranda, we recognized similar deficiencies to be more than
mere defects in pleading because they involve the state’s sovereign immunity.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28
(Tex. 2004). We further noted that because the recreational use statute modifies
the Tort Claims Act’s waiver of sovereign immunity, it is properly part of the
government’s plea to the jurisdiction and thus part of the interlocutory appeal.
Id. at 224-25; see also Tex. Civ. Prac. & Rem. Code §
51.014(a)(8) (granting governmental unit right to interlocutory appeal from
denial of a plea to the jurisdiction). Here, the court of appeals erred in
rejecting SFA’s plea under the recreational use
statute because no material factual dispute exists regarding its application in
this case. Because the statute applies and operates under the undisputed facts
to bar Flynn’s claim, we reverse the court of appeals’ judgment and render
judgment dismissing the case.

____________________________________

David M. Medina

Justice

Opinion
delivered:         June 29, 2007

[1]
See Tex. Civ. Prac. & Rem.
Code §§ 101.021, 101.056.

[2]
See Tex. Civ. Prac. & Rem.
Code §§ 75.001 - .004.

[3]
In 2003, the Legislature broadened this Court’s jurisdiction over interlocutory
appeals by redefining conflicting decisions to include an “inconsistency in
their respective decisions that should be clarified to remove unnecessary
uncertainty in the law and unfairness to litigants.” Tex. Gov’t Code § 22.225(e). This case
was filed before the effective date of that legislation and thus our former
definition applies. See, e.g., Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex.
2004).