In the case City of Waco v. Debra Kirwan, et al., college student Brad McGehee was sitting on a bluff in a park owned and operated by the city of Waco, Texas, watching boat races when the rock beneath him crumbled and he fell to his death. At the time of his accident, McGehee was sitting in an area beyond a wall on which a sign was posted by the city that read, "FOR YOUR SAFETY, DO NOT GO BEYOND WALL."

McGehee’s heir and representative, Debra Kirwan, filed suit against the city, claiming that the city was grossly negligent in not warning park patrons specifically of the risk of fatality from falling rocks, and in even allowing patrons to access the area at issue, given that prior injuries and fatalities had occurred there.

Under Texas’ recreational user statute, if the city owed a duty to warn recreational users of a dangerous property condition, then the user must meet a heightened burden of proof, demonstrating the government’s "gross negligence, malicious intent or bad faith" to support a premises liability case. If there was no duty to warn, though, the city would be immune to suit and liability under the Texas Tort Claims Act.

The trial court found that the city was immune to suit, because it could not be found grossly negligent for failing to warn park-goers of an "inherent danger of nature."

On appeal, though, this ruling was reversed. The appellate court held that "the recreational use statute permits premises defect claims based on natural conditions as long as the condition is not open and obvious and the plaintiff furnishes evidence of the defendant’s alleged gross negligence," and ordered Kirwan’s case to be heard in full to determine whether the city’s conduct rose to the level of gross negligence.

The city appealed the matter to the Texas Supreme Court, which reversed the appeals court’s ruling and dismissed the case. The court explained that the city could be liable or found grossly negligent in this case only to the extent that it owed McGehee a legal duty.

The court weighed numerous factors in deciding whether the city owed McGehee any duty. First, a cliff is foreseeably dangerous to both landowner and user, the court explained. Second, the inherent danger of a cliff’s edge is significant, not something a reasonable user would take lightly.

Finally, the court opined, requiring a landowner to look for every potentially dangerous natural condition and either warn visitors or render the condition safe would be "generally unreasonable and unduly burdensome."

Accordingly, the court ruled, under the recreational use statute, a governmental landowner does not owe a user the duty to warn them of inherently dangerous, naturally occurring conditions.

Additionally, the court emphasized, the city’s actual behavior was in fact not grossly negligent, in that the city had taken pains to construct a wall blocking park visitors from accessing the dangerous area and a sign warning that it was unsafe for visitors to go beyond the wall.

For these reasons, the Texas Supreme Court found there was no reason to waive the city of Waco’s immunity, and the appellate decision was reversed. Kirwan’s case was dismissed.

Tara-Nicholle Nelson is author of "The Savvy Woman’s Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site,


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