IN THE SUPREME COURT OF TEXAS

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No. 04-0460

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The State of Texas and the Texas Parks and Wildlife Department, Petitioners,

v.

Ricky Shumake and Sandra Shumake, Individually and as Personal Representative of the Estate of Kayla Shumake, Deceased,

Respondents

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On Petition for Review from the

Court of Appeals for the Third District of Texas

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Argued April 12, 2005

Justice Brister, dissenting.

No one needs to be warned that it is dangerous for a nine-year-old child to go tubing in a rushing river during high water. Because the Court holds the State must do so or pay the consequences, I respectfully dissent.

Nature is not safe. In many instances, that is its beauty. We can make a river safer by removing every rock and posting warning signs every 50 feet, but it is no longer a river — it is a waterpark. We can make a bridge safer by creating higher and longer spans, but only at some cost in both dollars and scenic beauty.

The Recreational Use Statute favors leaving things as they are, but encouraging people to enjoy them nonetheless. The unstated but unavoidable cost of this choice is that some users will be seriously injured, and some even killed, as Kayla Shumake was. But the statute does not make an exception for serious injury or death; indeed, the potential liability in precisely those cases is what tempts landowners to keep the State’s scenic beauty to themselves. The only exception the statute makes is for willful or wanton acts or gross negligence. See Tex. Civ. Prac. & Rem Code § 75.002(a).

Here, the Shumakes alleged the State knew “one or more persons had almost drowned because of the undertow at or near the same spot where Kayla Shumake drowned,” and was grossly negligent because it “failed to block swimmer’s [sic] even though it knew that swimmers were subject to being sucked under the water into the culvert.” This presents the stark choice: if one person “almost drowns” at a beach, lake, or swimming hole, must the State block swimmers in the future so it never happens again? I would hold the State cannot be grossly negligent in refusing to do so.

The Court says the State need not warn of or make safe natural conditions like a rushing river, but must do so here because it created a condition that recreational users would not expect to encounter. But those who tube in Texas rivers (unlike the Court) frequently encounter low-water crossings and culverts, often obstructed by debris, and must know that floating into such a hazard can be very dangerous. Further, because such rivers tend to be swift (few tube in ponds), visitors must reasonably expect to encounter strong currents that can pin a boat, canoe, or swimmer against any number of natural and artificial obstacles.

JUSTICE WAINWRIGHT skirts the statutory limitations by saying the State did not prove the river was rushing or that the Shumakes knew about undertow at this particular spot. But the unreasonably dangerous condition the Shumakes alleged was “the powerful flow of the elevated water level”; that they did not anticipate the details of what might occur does not mean the danger was not obvious. See Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991). Because the statute says nothing about what dangers are obvious (merely incorporating our own common law of trespass), we cannot blame the Legislature for making us decide this was not an obvious danger.

The people of Texas face a choice with respect to wild lands: we can leave them like they are and trust visitors to use reasonable caution, or we can flatten them and fill them with signs for the safety of those few who might not. The Recreational Use Statute favors the former. Because today’s decision does not, I respectfully dissent.

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Scott Brister

Justice

OPINION DELIVERED: June 23, 2006