*1 rе- awarded the trial court should be and the Texas statutory in the of Texas light change
duced STATE also judgments. They Department, interest rate on Parks and Wildlife in im- complain that the trial court erred Petitioners, on the stock posing constructive trust Donnelly the letter allegedly due agreement, and the real estate owned Shumake, Ricky and SHUMAKE Sandra on Retreat
the Willises which Urban Repre Individually Personal and as dispo- of our property is located. Because Kayla Shu sentative of the Estate of above, sition other issues discussed make, Deceased, Respondents. longer judgment there is no against any Petitioner on which award No. 04-0460. interest or a constructive trust. Becаuse take-nothing are entitled to a Willises Supreme Court of Texas. claims, judgment on all we reverse and Argued April 2005. portion judgment impos-
render the ing a constructive trust on the real estate Decided June they own and issued stock WHE or URH that own. As to a contract 22, 2006. Rehearing Sept. Denied against and for a con- WHE URH stock, structive trust on unissued the cor-
porations persuasive argument make no
that the trial court could not order such Donnelly properly
relief if pleads relief,
elects such but this is sue is moot Donnelly
until judg- such time as secures a surviving
ment on the contract claim
against WHE or URH.
III. Conclusion in part appeals’
We reverse the court of
judgment and take-nothing judg- render a Donnelly’s
ment on all of claims ap-
the Willises. We affirm the court of judgment
peals’ insofar as it remanded the
case for a new trial on the contract claim
against WHE and URH. We remand the pro-
case to the district court for further
ceedings opinion. consistent this with O’NEILL, BRISTER,
Justice Justice participate MEDINA did not Justice
in the decision. *2 raises recreational use statute
While the re- by classifying the proof the burden of of state-owned creational user requiring proof intent, faith, it malicious or bad negligence, *3 immunity sovereign but does not reinstate only to the rather immunizes the state Although extent of the elevаted standard. respects in all agree we do not with agree with its appeals’ opinion, court of Milios, Abbott, Lynn Greg Danica Attor- accordingly and affirm. judgment General, McBee, ney Barry Ross Edward Burbach, Cruz, D. Rafael Edward S. Ron- Keister, Attorney ald Office Gener- I al, Austin, petitioners. for camping, Park is a picnic, Blanco State Mendelsohn, Les Les Mendelsohn & As- by and recreation area owned the State sociates, P.C., Poole, Ricky J. Law Offices operated by Texas and the Texas Parks Poole, Antonio, Ricky respon- J. San for Department. During family and Wildlife dents. nine-year- park, visit to the the Shumake’s Kayla, swim- daughter, old drowned while Fierros, E. City Luis Assistant Attor- ming tubing in the Blanco River. ney, City Attorney, Officе of the Fort Kayla allegedly underwater was sucked Worth, Houston, City for Amicus Curiae trapped in a powerful undertow and Fort Worth. the water man-made culvert that diverted III, Ramon G. Viada Abrams Scott & nearby park under a road. L.L.P., Houston, Bicldey, for Amici Curiae The later learned that Shumakes Municipal League Texas and Texas Kayla’s park days before death three other Attorneys’ Association. same under- patrons had encountered the Justice MEDINA delivered the opinion nearly to the same tow and drowned due Court, in of the which Chief Justice communi- conditions. These events were JEFFERSON, HECHT, Justice Department employ- Justice cated to both a Parks O’NEILL, GREEN, Justice and Justice Austin office of the Parks ee and to the joined. JOHNSON Department. Texas,
In this case we consider the effect of the
sued the
Shumakes
State
among
things,
recreational use statute on a
lia-
other
premises
claiming,
bility
daughter
of their
was
wrongful
the state.
death
Tex.
Civ.
§§
special
75.001-.004. The
defect.
caused
Peac. & Rem. Code
They
Tort Claims Act waives the
sover-
that when the river’s waters
state’s
asserted
concealed,
eign immunity
high,
or in- were
the culvert was
cre-
defects
juries
They
...
fur-
ating
dangerous
caused
“a condition or use of
undertow.
Parks
property.”
Department
real
Civ. PRAC. & Rem.
ther
here,
situation,
hav-
101.021. The State contends
was aware of this
however,
reports
that the recreational use statute
received
of other recent near-
area,
effectively
premis-
drownings involving
the same
reinstates
arising
es
claims
on state-owned
failed to make the culvert
or warn
safer
finally alleged
properties.
disagree.
danger.
The Shumakes
We
Generally,
appeals’
a court of
de-
Department’s
that the Parks
failure to act
diction.
risk,
degree
consid-
extreme
an interlocutory appeal
involved
cision in
is final.
ering
probability
magnitude
of the
22.225(b)(3). When,
Tex. Gov’t Code
and thus had
potential harm swimmers
however,
justice
appeals
the court
breached even the modest
of care
question
on a
of law material to
dissеnts
owed to them as
interlocutory
appeal,
the decision
statute.
recreational use
prior
when a
decision of another court of
plea
filed a
Parks
appeals conflicts with the court’s decision
jurisdiction, seeking
dismissal
juris-
interlocutory appeal,
we have
subject
Shumakes’ claims for lack of
mat
disagreement
diction to
or con-
resolve
jurisdiction,
among
urging,
ter
other
(2)
22.001(a)(1),
§§
flict. Tex. Gov’t Code
*4
things,
use statute
22.225(c).
premises
barred their
defect claims
im
eliminating
governmental
the waiver of
of
decision in this
appeals’
The court
munity provided by the Tort Claims Act
conflicts with those of four other
case
& Rem.
for such claims. See Tex. Civ. PRac.
aрpeals
courts of
which have held that the
§§
trial court de
75.001-.004. The
permit
a
recreational use statute does
plea,1
Department
nied the
and the Parks
premises
defect claim
the state.
interlocutory appeal.
took an
See
Tex.
Civ.
Crockett, 142
City
Fort
v.
See
Worth
of
51.014(a)(8).
PRAC. & Rem. Code
2004,
(Tex.App.
550
Worth
S.W.3d
—Fort
appeals
The court of
affirmed the trial
Galveston,
denied);
pet.
Gray
City
v.
of
plea
jurisdic-
of
to the
court’s denial
(Tex.App.
II
v.
pet.); City
Houston
(Tex.App.
[14th
Advanced Fixation (Tex.1999). We may S.W.2d 865-66 IV ascertaining leg- consider other matters negligent activity A claim requires intent, objective including islative injury result claimant’s from law, history, consequences its contemporaneous activity itself than rather of a See particular construction. Govt from a condition on the premises created 311.023(1),(3), (5); Union Bankers activity; whereas defect Shelton, Ins. Co. being claim is based on itself (Tex.1994). Statutory construction Kroger unsafe. See Keetch v. law, question and our review is accord- (Tex.1992). We have re Forlenza, 140 ingly novo. In re de jected attempts to blur the distinction be (declining tween these two claims. See id.
“to all prem eliminate distinction between activities”). use statute limits The recreational negligent ises conditions and state, Lability here, but also Department’s argument The Park others, however, liability open does much who their land not seek so to blur purposes. distinction the two as it to for between does Tex. Civ. Prac. Determining one altogether. protec §§ eliminate 75.001-.004.4 & Rem. Code a “trespasser” whether re encourage type state-owned this tion is extended injuries land creational has a provid use. The statute limits by the prop caused unsafe condition the occupier of the owner or real erty requires that construe the statute that the property does not assure *6 along with the law the principles common are purposes safe for recreational does ostensibly incorporates. statute the responsibility not assume for actions of property.
those to admitted Id. A (3). 75.002(c)(1), § The statute further fiction, legal classifying invit creates statute, construing When we property ed recreational user of the as a begin language. primary with its Our ob trespasser, imposing that limited stan jective Legislature’s is to determine upon dard landowner. Id. which, of care possible, intent we discern when however, 75.002(c)(2). statute, The also plain meaning from the cho words user’s provides that the recreational status City of Boerne, sen. San Antonio of liability of “shall not limit trespasser If the stat lessee, owner, or real unambiguous, occupant prop- must an ute is clear and or erty grossly negligent to been has apply аccording its words their common who has 2) person permission part to the to whom 4. The of the statute relevant to this case owe greater degree care granted a than is provides: trespasser premises; to a on the or owed lessee, (c) owner, occupant an or real If 3) ... agricultural gives property than land other (d) (c) ... not limit the Subsection shall permission to enter another owner, lessee, occupant liability owner, recreation, lessee, or occu- grossly negli- property who been real has by pant, giving permission, not: does gent intent or or has acted with malicious 1) assure safe for that the are faith. in bad purpose; that 75.002(c), (d). Tex. Civ. Prac. & Rem. Code danger, unsuspected acted with malicious intent or bad faith.” fall into an the loss 75.002(d). §Id. v. Dick their own.” Tex. Cities Gas Co. ens, 140 Tex. face, 75.002(d) On its section makes no (1943). Thus, general proposition, as a injuries by distinction between caused ac- use landowner is entitled the exclusive injuries tivities and caused conditions. injury property of his and “is not hable for however, Department argues, caused his failure to 75.002(d) though even section does not ex- put exercise reasonable care to his land pressly limit scope gross negli- of a them, carry a safe condition for or to claim, gence the limitation is nevertheless in a his activities manner which does implicit in the classifiсation of the recre- Page al., endanger them.” W. et trespasser ational user as a under section Keeton 75.002(c)(2). PROSSERAnd on the Law of ToRts submits Keeton (5th ed.1984). § 58 at 393-94 arise, all, gross negligence must if at contemporaneous from activities on the grounded This rule is the common property right because a has regard rights law’s traditional to expect property that the is safe or that private ownership and the as- any dangerous owner will warn about sumption normally landowners have general prop- conditions known to it. As a expect trespassers no reason to or know correct, osition this is but construing tres- them, and thus no for creat- passer status as an absolute to a bar condition on their own premises defect claim under the statute property. general Id. at 395. This propo- requires closer examination. subject sition to a qualifica- number of (“Once tions, however. See id. at 395-99 B foregoing general nonliability rule of A trespasser at common law was stated, has been rest the law one who entered upon property of another it.”). trespassers is a of exceptions list invitation, any legal right without ex jurisdictions, A number of motivated press implied. Texas-Louisiana Power pressing more considerations for human Webster, Co. v. 127 Tex. safety, (1936). have balanced such considerations law, At common the land *7 against favoring prop- the traditional rule duty owner owed no but to refrain from erty rights. authority As one has ob- injuring the trespasser “willfully, wanton served, very if the landowner’s “burden is ly, through gross or negligence.” Tex. slight, trespass- and if the risk of harm to Timmons, Utils. Elec. Co. v. 947 S.W.2d 191, correspondingly very great, ers is there (Tex.1997); 193 Burton Constr. may good be reason to hold the defendant Broussard, Shipbuilding Co. v. 154 Tex. (1954). 50, 598, exception liable.” Id. at 395. Under this 603 The rule is rule, landowner, general to the a who has based on the principle that a landowner knowledge trespasser actual that a is com- obligation protect trespasser has no to a ing and a (cid:127)wrongful the use of the will encounter known prop landowner’s landowner, erty: by may condition the tresрassers, who come uninvited for created purposes duty of their own to “must take the owe a warn or take some other they them; trespasser’s as find and if action for protection.5 the See, Arts, e.g., Copeland injure dangers v. Pike Liberal 553 and to warn him of known him 100, (Ala. 1989) (duty by danger So.2d 102 owed to tres aware of to [landowner] was after passer wantonly intentionally [trespasser]”); Parzych Branford, is "not to or v. 20 Conn.
286 oth- position, This is also the Restatement’s case. Neither this distinction nor the adopted by appeals. disagreement the court of 131 er common law’s here controlling trespassers S.W.Bd treatment of is at 77-78. Legislature pur- here because the did not however, Department argues, The Parks adopt principles to common law port these that before this case Texas law had not 75.002(d). liability as its section standard distinction, recognized such a and thus the fact, entirely. something In it intended else principle contemplated could not have been 75.002(d) quite plainly provides when it enacted this Section of a user statute. But whether Texas common law that the classification has, should, “limit distinguish trespasser differ- a not intended to between as was types not landowner] ent does control who has been [a statutory grossly our in this construction or has with mali- negligent decision acted 223, 378, ("[I]n (1974) (1957) ("[A]lthough Supp. occupier A.2d 474 an 136 225 owner or duty trespasser Conneсticut a landowner is not liable to a of land a to owes wilful, trespasser safeguard to use to wanton con for failure care refrain from or reckless duct, injury trespasser position due to is him from conditions on the where a in a However, pres presence peril helpless land. when the of a tres or in situation and his a known, known, passer duty a a ordinary becomes to use ence becomes the owner then has arises.”); injury duty injuring care to avoid then Wood v. to use care to avoid reasonable 691, stated, 693, (Fla. him, or, 1973) Camp, duty 284 So.2d 694 a of rea sometimes ("The circumstances.”); unwavering trespasser rule as to a sonable care Hanson is 495, 252, duty only Bailey, is 257 ownеr under the 249 Minn. 83 N.W.2d (1957) (Sections Restate to avoid willful and wanton harm to him and 333 and of the upon presence "correctly appli discovery warn him of his to ment Torts enunciate law”); dangers open ordinary Riegel Paper Corp., 24 known tion.”); to observa cable Imre v. Co., 438, 505, (1957) ("The v. Lake W.R. N.J. Bremer Erie & 132 A.2d 11, 862, (1925) (“The duty protection of others Ill. 148 N.E. dis standard of is the harm; clearly tinction an is made that a defendant owes unreasonable risk of duty ordinary trespasser principle trespass operative in favor of care to danger, particular injuring presence known ers on land to be in avoid him. if the discovered, injury trespasser possessor ordinary If care be or the exercise can avoided, trespassing be the land be of constant the defendant is liable aware care, particular trespasser, upon place failure or a area and to use such but to limited unknown, presence danger likely whose the act is cause death or serious or whose care, harm.”); ordinary bodily Maple v. duty there is Tennessee Gas exercise Co., (Ohio though duly injure 201 N.E.2d there is not to him Transmission negli ("The duty willfully wantonly, Ct.App.1963) injure a tres such willfulness.”); prem gence passer upon to be as evidences Reasoner v. after he is known duty Chicago, as is in that Rock Island & Pac. R.R. ises is same owed Pratt, (1960) ("It invitee.”); respect to Lavallee v. Iowa 101 N.W.2d (1960) ("The fact uniformly that the or holder Vt. 166 A.2d stated owner plaintiff will not owes no to the unknown that the was *8 duly trespasser upon properly that of of reasonable his save excuse actor from presence injuring willfully wantonly, safety his his was known him and to use care for if anticipat reasonably ordinary such care as the or should have been reasonable 605, demand, Carvill, ed.”); 527 presence 206 W.Va. circumstances his Brown v. after known, 149, (1998) ("We held peril S.E.2d have and his are avoid 153-54 him."); dangerous injuring Louisville Nashville R.R. that when a landowner creates & 349, likely (Ky. is Vanderpool, upon 496 condition his that Co. S.W.2d 351 death, 1973) ("[T]he duty trespasser bodily injury or and the only cause one owes serious (as Vanderpool) ordinary is that intrude was to еxercise landowner is aware dangerous position condition injuring care to him his into the area where avoid after exists, discovered.”); exercise peril must then Pridgen is v. Boston Hous the landowner 467, 696, trespassers.”). ing Authority, due care 364 Mass. 308 N.E.2d towards gross cious intent or bad faith.” Tex. negligence spe- should have such a Civ. 75.002(d). § PRAC. & Rem. Code Had the meaning. cial or limited Because it is not Legislature merely adopt otherwise, intended to defined we conclude that standard, trespasser this limitation would Legislature must have for gross intended necessary. have been standard negligence commonly-accepted to have its 75.002(d) section and the trespasser stan- legal meaning.
dard are therefore not the same. Both Legisla this Court the Texas immediately gross negligence
This
ture have defined
as an
apparent
(d)
language
subjective
when the
act or
involving
of subsection
omission
aware
compared
risk,
to that consistently
degree
used
Tex
ness of an extreme
indicat
as courts to describe the
rights,
common law
conscious indifference to the
of care owed to trespassers:
safety,
to refrain
or welfare of others.
Ins.
Transp.
Moriel,
(Tex.
injuring
trespasser
from
“willfully, Co. v.
S.W.2d
wantonly
through gross
1994);
negligence.”
Ry.
Shuford,
Missouri Pac.
v.Co.
Dept.
(1888);
Tex.
Parks & Wildlife,
Functional Restoration V (Tex.2000). Thus, Depart Recreational use statutes have been en ment’s argument concerning the limita nearly every acted in uniformly state and tions in inherent negligence under provide that landowners do not extend to (c) trespasser standard, subsection recreational users assurance that the statute, does not inform our under safe, property is nor confer re upon the (d). standing of subsection legal creational user the status of an invi The recreational use statute does not ordinary duty tee or licensee to whom an gross negligence; define merely pro- of care is owed. See 62 Am. Prem JuR.2d (1990). vides that status shall not limit Liability ises These stat utes, however, of a landowner “who has bеen generally also retain liabili grossly negligent.” Tex. Civ. ty guard for a willful or malicious failure PRAC. Rem. 75.002(d). language condition, This does not or warn suggest use, structure, con- activity. was Id. at 479. Be *9 cerned about a landowner’s immunize contemporane- generally cause these statutes ous and active conduct as liability landowners from unless are argued. Nothing has in the language guilty gross negligence, indi- of willful or mali conduct, cates that intended that important cious it is to under- 288 Co., (Tex.App.- a failure to Elec.
stand under what conditions S.W.2d dism’d) (landowner’s El guard dangerous or a condi- Paso writ warn may dangerous of grossly negligent,, signs warning tion be considered use of waters discharge malicious or canal company’s willful. created land demonstrated conscious concern of Contrary sug to the Dissent’s safety trespass “for the even of owner hold, gestion, imply, not or even we do ers”). requires Gross negligence may negligent a landowner be for grossly of, and subjectively be landowner aware of failing dangers warn of inherent to, consciously an risk indifferent extreme (Brister, nature. at 290 J. S.W.3d harm. See Crv. Peac. Rem. dissenting) (suggesting that State must 41.001(11); v. Corp. Louisiana-Pacific now warn that “it is for a nine- (Tex.1999) Andrade, 246-47 a year-old go tubing rushing child to (“what separates ordinary negligence from water”). A during high river landowner gross negligence state defendant’s protect trespassers has no to warn or mind; words, plaintiff must in other Thus, from obvious defects or conditions. about the show that the defendant knew may the owner that the assume recreation his demon peril, but acts omissions appreciate al user warning needs care”). he This is strate that did not conditions, dangers natural such as a De approach with our in Texas consistent cliff, river, rushing sheer a or even a con v. Mi partment Parks and Wildlife a can cealed rattlesnake. But landowner premises might defect claim randa that gross negligence creating liable for be under recreational use stat brought be condition that a user recreational would long ute as a factual dis there existed reasonably expect not tо encounter on neg pute regarding the landowner’s permitted property in the course of the respect defect. ligence with See, e.g., Golding Ashley use. v. Cen. The recreational 230-31. (Utah 142, 145 Irrigation 902 P.2d state’s use statute limits the (“If 1995) knowledge has landowner [ ] defects, not to but its effect is uncommon, danger hidden peril from suit. the state’s reinstate not in the the land that is inherent use put land is and that would which the reasonably discovered or avoided
be plead- that the Shumakes’ We conclude trespasser, the landowner’s failure to warn to state a ings were sufficient danger guard against such a could use liability claim under the recreational willful, wanton, or in amount to malicious court оf judgment statute. action.”); Cavazos, v. City Houston affirmed. appeals accordingly (Tex.App.-Houston [14th Dist.] S.W.2d 231 dism’d) that numer (knowledge writ filed a Justice WAINWRIGHT period people ous had drowned over concurrence. created, years artificially at the same filed a dissent. BRISTER Justice hidden, city action hazard without remedy hazard was some to warn or participate. did Justice WILLET see also gross negligence); evidence of WAINWRIGHT, concurring. Justice Adrian, Burnett Mich. (1982) relatively straightforward. case is (reaching same con This N.W.2d pled plaintiffs question use whether Michigan’s clusion statute); to constitute a v. Tex. facts sufficient Smither Utilities cf. *10 gross negligence against holding bridge the Texas De- That is a in we сrossed Miranda, partment so, relying on the common law Parks and If Wildlife. they gross negligence standard. 133 S.W.2d pleading requirements satisfied the I that agree 225. with the Court the for a sovereign immunity limited waiver of pled gross negli- Shumakes a claim for Legislature created the under the re- gence Legislature’s and satisfied the re- creational use statute. quirements for a limited waiver of Kayla Shumake and parents her were for them lawsuit Department. the swimming and tubing at Blanco State Park I do not concur in broader view of the pulled Kayla when an undertow under limited waiver the recreational use stat- neath the into water a culvert where she ute. drowned. The pled Shumakes that the suggests The dissеnt that the Court’s Department constructed and maintained a knowledge: conclusion defies common drainage park culvert under a that road one needs to be that “[n]o warned a dangerous created and hidden undertow dangerous for nine-year-old child to go apparently popular swimming area tubing rushing river during high wa- when the level of the Blanco River was ter.” 199 If Depart- elevated. The pled Shumakes that presented ment evidence that danger Department that, only days knew before was obvious virtue of observable “rush- Kayla drowned, Shumake per one or more ing” flowing through water swimming nearly sons had drowned at the same site area, might the result in this case be dif- from the same risk. The Shumakes also ferent. pleadings But the Shumakes’ con- pled Department that knew of the tain no Department such reference and the continuing yet risk failed to warn of the presents no assertions or evidence con- undertow in the swimming area. The Shu- allegation they trovert the Shumakes’ pled makes did not know of the knowledge had no of the undertow. The undertow and could have known of the dissent also criticizes the Court’s result as danger in the ordinary exercise of care. “[njature imprudent, commenting that Thus, the Shumakes facts to sup instances, In many safe. is its (1) port their objec contention that viewed beauty. can We make a river safer tively from Departmеnt’s standpoint, removing every posting warning rock and its failure to warn involved an extreme feet, signs every longer but it is no risk, degree considering probability waterpark. river —it is a can We make magnitude and potential harm to bridge by creating safer higher longer (2) actual, others had spans, at some cost in both dollars subjective knowledge of the risk involved beauty.” and scenic Id. No one would but nevertheless acted with in conscious doubt the truth of these statements. But safety difference to the guests of the swim surely the dissent would concede that the ming in park. See Tex. Dep’t Parks Legislature elementary knew these facts Miranda, 133 S.W.3d Wildlife parks and rivers when it passed the (Tex.2004); City Bellmead v. Tor fаct, Leg- use statute. In res, superior islature is in a position to deter- Under the recreational use statute and dangers mine the conditions and Act, the Texas Legislature Tort Claims parks, State’s as well Department’s as the sovereign waives Depart- if the ability perils to warn of or make them safe. grossly negligent. ment is position greater PRAC. From this knowledge, Tex. Civ. 75.002(c)-(d), §§ 101.058. made its decision and & Rem. Code *11 subject under the water being use as to sucked drafted the recreational statute a presents im- into the This the stark sovereign limited culvert.” waiver the State’s at person choice: if one “almost drowns” a munity. disagreed if Even we with the beach, lake, hole, swimming risks, must the parkland Legislature’s assessment in the sо State block swimmers future it Legislature’s we are bound choice again? happens never I would hold the it displace and should not with our own. grossly negligent in refus- State cannot be judgment. I concur the Court’s ing to do so. says The the State need not warn Court BRISTER, dissenting. Justice like of or make safe natural conditions a it No needs warned that one to be river, rushing must do so here because but go for a child to nine-year-old it created condition tubing wa- rushing during high in a river to But expect users would not encounter. ter. the Court holds the State Because (unlike those who tube Texas rivers pay consequences, must do so or I Court) frequently encounter low-water respectfully dissent. culverts, crossings oftеn obstructed and instances, many Nature is not safe. In debris, that floating must know into and beauty. a river that is its We can make very dangerous. such hazard can be by removing every rock posting safer and Further, rivers to such tend be because feet, warning it is signs every 50 but (few tube in visitors must ponds), swift longer waterpark. a river —it We can cur- expect strong encounter reasonably bridge by creating higher make a safer boat, canoe, or swim- pin rents that can only at cost in longer spans, and but some against any of natural and mer number beauty. both dollars scenic artificial obstacles. Statute Recreational Use favors skirts the JUSTICE WAINWRIGHT are, leaving things they encouraging as by saying the State statutory limitatiоns enjoy people to them nonetheless. The rushing not or that prove did river was unstated but unavoidable cost this about undertow at Shumakes knew seriously choice that some users will be unreasonably particular spot. this But killed, Kayla injured, and some even dangerous condition the Shumakes was. But the statute does not Shumake of the elevated powerful was “the flow injury or exception make an for serious level”; they anticipate did water death; indeed, liability in potential might of what occur does details tempts land- precisely those cases is what danger mean not obvious. See was beauty scenic keep owners to State’s Sons, Joseph Seagram & Inc. v. E. exception the stat- themselves. The McGuire, or wanton acts or ute makes is willful says nothing Because the statute gross negligence. See incorpo- (merely PRác. what are dangers Civ. obvious 75.002(a). trespass), common law of rating our own Rem Code mak- Legislature for we cannot blame the Here, alleged the State Shumakes us not an obvious decide this was almost persons knew “one or more had danger. of the undertow drowned because face choice with Kayla people of Texas spot near where Shumake the same them drowned,” respect be- we can leave grossly negligent to wild lands: was visitors use like are and trust [sic] cause it “failed block swimmer’s caution, them we can flatten that swimmers were reasonable though even knew safety of signs and fill them with for the *12 might not. The Recreation-
those few who
al favors the former. Because Use Statute not,
today’s does I respectfully decision
dissent. SUDAN, Petitioner,
Philip Jr., P. Dye
Margaret SUDAN, now known as Mackenzie,
Maggie Respondent.
No. 04-0921.
Supreme Court of Texas.
June 2006.
Rehearing Sept. Denied 2006. Allshouse, Houston, Bucky peti-
J.D. tioner. Richie, Walters, E. Katherine
Sheldon J. Cole, P.C., Jeffrey Gueringer, R. Richie & Austin, Grimes, Ellen Elkins Law Office Grimes, Houston, respon- Ellen Elkins dent.
PER CURIAM.
In to enforce a this suit settlement agreement incorporated in a de- divorce cree, we consider whether there is into evidence that ex-wife was coerced alimony relinquishing rights her to future payments. appeals The court of reversed summary judgment favor of the ex- husband, concluding evi- there was some ex-wife was dence that the under economic gave her up rights. duress when she disagree that there We economic is evidence of duress here