Brief the case?University of Texas at Arlington v. Williams, 459 S.W. 3d 48 (Tex. 2015), which is attached as ‘Williamscase.docx’?? ?Please ?use the approved case brief format that

1 of 1 DOCUMENT

UNIVERSITY OF TEXAS AT ARLINGTON, PETITIONER, v. SANDRA WILLIAMS AND STEVE WILLIAMS, RESPONDENTS

NO. 13-0338

SUPREME COURT OF TEXAS

459 S.W.3d 48; 2015 Tex. LEXIS 268; 58 Tex. Sup. J. 514

October 9, 2014, Argued

March 20, 2015, Opinion Delivered

PRIOR HISTORY: [**1] ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS.

Univ. of Tex. at Arlington v. Williams, 455 S.W.3d 640, 2013 Tex. App. LEXIS 3985 (Tex. App. Fort Worth, Mar. 28, 2013)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, did not bar the spectator's underlying premises liability action after she fell at a college stadium because the activity of being a spectator at a competitive-sports event was too dissimilar to the others on the list under Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3), to be included and thus, it was not "recreation" under the statute; [2]-Although soccer might be played in an open-air stadium, a soccer game, as ordinarily understood, was not associated with nature in the sense indicated by the statutory definition of "recreation." Because the outdoors and nature were not integral to the enjoyment of this activity and because the activity was unlike the others the statute uses to define "recreation," § 75.001(3)(L), the so-called "catch-all", did not catch that activity.

OUTCOME: Judgment affirmed.

CORE TERMS: recreational use, outdoor, sport, recreation, stadium, enjoying, plurality, recreational activity, competitive, soccer, spectator, immunity, daughter's, recreational, playground, enjoyment, catchall, playing, team, spectating, swimming, gate, Tex Gen Laws, camping, outdoor activities, landowner, boating, driving, governmental unit, fishing

LexisNexis(R) Headnotes

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN1] The recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, provides limited protection to landowners and occupants who open their property for public recreational purposes. When applicable, the statute effectively immunizes the landowner or occupant from ordinary negligence claims associated with the property's recreational use by requiring the plaintiff to establish gross negligence, Tex. Civ. Prac. & Rem. Code Ann. § 75.002(c)-(d), (f). The statute, however, only applies to certain recreational uses that it defines through a list of activities it considers to be recreation, Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3).

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN2] Tex. Civ. Prac. & Rem. Code Ann. §§ 75.003(g) and 101.058 provide that, to the extent the recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, applies, it controls over the Tort Claims Act.

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN3] When applicable, the recreational use statute limits the liability of landowners by requiring proof of their gross negligence, malicious intent, or bad faith in the premises liability case, Tex. Civ. Prac. & Rem. Code Ann. § 75.002(d).

Civil Procedure > Appeals > Appellate Jurisdiction > Interlocutory Orders

[HN4] Interlocutory appeals are generally final in the court of appeals unless there is a dissent in that court or a conflict with another decision, Tex. Gov't Code Ann. §§ 22.001(a)(2), 22.225(b)(3), (c).

Governments > Courts > Judicial Precedents

[HN5] Decisions conflict when there is an inconsistency in the respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants, Tex. Gov't Code Ann. § 22.225(e).

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN6] The recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, protects landowners who open property for recreational purposes, limiting their liability to the recreational user. The statute accomplishes this by elevating the burden of proof in premises liability cases in which it applies. The statute effectively requires either gross negligence or an intent to injure. The statute, however, only applies to recreational uses, which the statute defines through a non-exclusive list of included activities.

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN7] See Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3).

Governments > Legislation > Interpretation

[HN8] General terms and phrases should be limited to matters similar in type to those specifically enumerated. When words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation. In a similar vein, context is fundamental to understanding the use of language and that meaning cannot ordinarily be drawn from isolated words or phrases but must typically be determined from statutory context. Courts are also typically inclined to apply a term's common meaning unless a contrary intention is apparent from the statute's context.

Governments > Legislation > Interpretation

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN9] The Legislature did not provide that the recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, was to cover recreation generally but rather defined the term through the list of included activities under Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3). Although the Legislature has broadened the statute's reach over the years, it has not made it generally applicable to all refreshing, relaxing, or enjoyable activities. "Recreation" under the statute has remained more specific than the word's ordinary meaning.

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN10] Under the recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, there was nothing illogical about the Legislature's decision to include bird-watching as a covered recreational activity, but not spectating at outdoor sports stadiums. A landowner who allows a person to bird-watch opens his property for use in its natural state. The landowner does not build a stadium or otherwise make improvements for that purpose as in the case of organized-sporting activity.

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN11] If the Legislature intended for the recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, to apply generally to competitive sports and their spectators, the catchall provision is a curious choice as it apparently applies to some competitions but not others, that is, those played in open-air stadiums instead of enclosed facilities. It is apparent from the statute's development that Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(L) "catchall" was not intended simply to incorporate all other outdoor activities into the statute. Had that been the Legislature's intent, it would not have continued to add specific outdoor activities after adding the "catchall" in 1997. But § 75.001(3)(L) must catch some unlisted activities; otherwise, it would have no purpose.

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

Governments > Legislation > Interpretation

[HN12] The meaning of individual words may be ascertained by reference to words associated with them in the statute. Where two or more words of analogous meaning, such as "nature" and "the outdoors", are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other. Because of its association with nature, "enjoying the outdoors" cannot include every enjoyable outside activity. It must also be associated with nature, or "that part of the physical world that is removed from human habitation." In this sense, the "outdoors" is not integral to the enjoyment of competitive sports because the focus of that activity is the competition itself, not where the competition takes place.

Governments > Legislation > Interpretation

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN13] Although soccer may be played in an open-air stadium, a soccer game, as ordinarily understood, is not associated with nature in the sense indicated by the statutory definition of "recreation." Because the outdoors and nature are not integral to the enjoyment of this activity and because the activity is unlike the others the statute uses to define "recreation," Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(L), the so-called "catch-all", does not catch this activity.

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN14] The Texas statute mentions only "water sports" among its list of recreational activities, Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(K). The only other part of the statute that arguably associates recreational activity with any type of competitive sport is Tex. Civ. Prac. & Rem. Code Ann. § 75.002(e), which adds adds certain hockey and skating activities, as well as soap box derby and paintball uses as recreational activities if the activities take place on premises owned, operated, or maintained by a governmental unit.

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN15] See Tex. Civ. Prac. & Rem. Code Ann. § 75.002(e).

Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Recreational Use Statutes

[HN16] None of the amendments in the recreational use statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, suggest that the Legislature intended to include competitive sports and spectating as recreational activities under the statute.

COUNSEL: Amicus Curiae for Texas City Attorneys Association, Texas Municipal League: Laura F. Mueller, Texas Municipal League, Austin, TX.

For University of Texas at Arlington, Petitioner: Arthur Cleveland D'Andrea, Assistant Solicitor General, Austin, TX; Daniel T. Hodge, First Assistant Attorney General, Austin, TX; Dustin Mark Howell, Office of the Attorney General of Texas, Austin, TX; Greg W. Abbott, Attorney General of Texas, Austin, TX; Jonathan F. Mitchell, Solicitor General, Office of the Attorney General, Austin, TX; Kevin Desiderio Molina, Attorney General's Office, Tort Litigation Division, Austin, TX.

For Sandra Williams, Steve Williams, Respondent: Christopher J. Harris, David Lee Cook, Kimberly Fitzpatrick, Harris Cook LLP, Arlington, TX.

JUDGES: JUSTICE DEVINE announced the judgment of the Court and delivered an opinion, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, and JUSTICE LEHRMANN joined. JUSTICE GUZMAN filed a concurring opinion, in which JUSTICE WILLETT joined. JUSTICE BOYD filed a concurring opinion. JUSTICE JOHNSON filed an opinion, concurring in part and dissenting in part, in which JUSTICE BROWN joined.

OPINION BY: John P. Devine

OPINION

[*49] [HN1] The recreational use statute provides limited protection to landowners and occupants who open their property for public recreational purposes. See Tex. Civ. Prac. & Rem. Code §§ 75.001-.007 (the recreational use statute). When applicable, the statute effectively immunizes the landowner or occupant from ordinary negligence claims associated with the property's recreational use by requiring the plaintiff to establish gross negligence. See id. § 75.002(c)-(d), (f). The statute, however, only applies to certain recreational uses that it defines through a list of activities it considers to be "recreation." Id. § 75.001(3).

The question here is whether the statute's recreational-activity list reasonably includes a spectator at a competitive-sports event. The court of appeals [**2] concluded that this activity was too dissimilar to the others on the list to be included and accordingly held it was not "recreation" under the statute.455 S.W.3d 640, 648, 2013 Tex. App. LEXIS 3985 (Tex. App.–Fort Worth 2013) (mem. op.). We agree. Although members of this Court have different views on the nature of the injury-producing activity in this case, we agree that the recreational use statute does not bar the underlying action. The court of appeals' judgment is accordingly affirmed.

I

Sandra Williams and her husband sued the University of Texas at Arlington (UTA) for injuries Williams sustained when she fell at Maverick Stadium. The stadium is a 12,500 seat, multipurpose facility located on the western edge of the UTA campus. It served as UTA's football stadium through the 1985 season, after which the university gave up its football program. The stadium is now used by the university's track-and-field teams and is also leased to the Arlington Independent School District for football games and other events. The Williamses were at the stadium to watch their daughter's high school soccer game.

[*50] After the game, Williams walked down the stadium stairs to wait for her daughter, stopping at a guard rail that separates the stands from the playing field. The [**3] stands are elevated above the field, but a gate in the railing provides access to the field when portable stairs are in place. On this occasion, the stairs were not there, and the gate was closed.

The gate's latch had previously broken off, but the gate was secured with a chain and padlock. While waiting for her daughter, Williams leaned against this gate, which unexpectedly opened. Williams fell five feet to the artificial-turf field below, injuring a rib and her left arm.

In her premises liability suit against the university, Williams alleged that UTA was negligent and grossly negligent in securing the gate with a chain and lock it knew to be inadequate, and in failing to maintain the gate and repair its broken latch. UTA responded with a general denial, a plea to the jurisdiction, and a motion to dismiss, asserting sovereign immunity and the recreational use statute. See Tex. Civ. Prac. & Rem. Code §§ 75.003(g), 101.058 ( [HN2] providing that to the extent the recreational use statute applies, it controls over the Tort Claims Act).

Williams argued that the recreational use statute did not apply because she was not engaged in a recreational activity at the time of the accident. In the alternative, she argued [**4] that, if the statute applied, UTA's plea and motion to dismiss should still be denied because she had raised a fact question regarding UTA's gross negligence. [HN3] When applicable, the recreational use statute limits the liability of landowners by requiring proof of their gross negligence, malicious intent, or bad faith in the premises liability case. Tex. Civ. Prac. & Rem. Code § 75.002(d).

The trial court denied UTA's plea and motion, apparently agreeing with Williams' arguments. The court of appeals affirmed.455 S.W.3d 642, 2013 Tex. App. LEXIS 3985. UTA appealed. We granted UTA's petition to consider whether attending a soccer game as a spectator is a recreational activity under the recreational use statute.

II

We begin, however, with our own jurisdiction, which is limited when the appeal is from an interlocutory order, such as the trial court's order here denying UTA's plea to the jurisdiction. UTA, a state university, argues that we have jurisdiction under section 51.014(a)(8) of the Civil Practice and Remedies Code, which authorizes an interlocutory appeal from the grant or denial of "a plea to the jurisdiction by a governmental unit" such as UTA. [HN4] Interlocutory appeals, however, are generally final in the court of appeals unless there is a dissent in that court or a conflict with another decision. [**5] See Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 656 (Tex. 2007); see also Tex. Gov'T Code §§ 22.001(a)(2), 22.225(b)(3), (c).

UTA argues that the court of appeals' decision here conflicts with one of our prior decisions. See City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. 2002). In City of Bellmead, we concluded that the recreational use statute applied to the user of playground equipment in a city park because the activity was of a type that the Legislature intended to include as recreation. Id. at 615. UTA argues that the users of stadiums and sports fields are similarly engaged in recreation under the statute and that the court of appeals' determination to the contrary is in conflict with City of Bellmead. UTA further points out that the court of appeals' decision here conflicts with another court of appeals' decision, which applied the recreational use statute to a spectator at a baseball game. See Sam Houston State [*51] Univ. v. Anderson, No. 10-07-00403-CV, 2008 Tex. App. LEXIS 8614, 2008 WL 4901233, at *3 (Tex. App.–Waco Nov. 12, 2008, no pet.) (mem. op.) (concluding that statute applied to a spectator whose arm was broken when the bleachers collapsed during a baseball game).

[HN5] Decisions conflict when there is an "inconsistency in [the] respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants." Tex. Gov'T Code § 22.225(e). The conflict here satisfies that definition and thus supports our [**6] jurisdiction. We turn then to the recreational use statute and the question presented: whether a spectator at a competitive-sports event is engaged in "recreation" under the recreational use statute.

III

[HN6] The recreational use statute protects landowners who open property for recreational purposes, limiting their liability to the recreational user. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). The statute accomplishes this by elevating the burden of proof in premises liability cases in which it applies. See Stephen F. Austin State Univ., 228 S.W.3d at 659 (noting that the statute "effectively requires . . . either gross negligence or an intent to injure"). The statute, however, only applies to recreational uses, which the statute defines through a non-exclusive list of included activities. Under the statute,

[HN7] "Recreation" means an activity such as:

(A) hunting;

(B) fishing;

(C) swimming;

(D) boating;

(E) camping;

(F) picnicking;

(G) hiking;

(H) pleasure driving, including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles;

(I) nature study, including bird-watching;

(J) cave exploration;

(K) waterskiing and other water sports;

(L) any other activity associated with enjoying nature or the outdoors;

(M) bicycling and mountain biking;

(N) disc golf;

(O) on-leash [**7] and off-leash walking of dogs; or

(P) radio control flying and related activities.

Tex. Civ. Prac. & Rem. Code § 75.001(3) (emphasis added).

The issue in this case is whether the statutory term "recreation" reasonably includes competitive sports and their spectators. We did not answer that question in City of Bellmead v. Torres. See 89 S.W.3d at 614 (declining to decide whether "softball is . . . recreation within the meaning of the Statute"). We did, however, apply subpart (L) in that case to enlarge the statutory list to include an omitted activity. Id. at 615. Because competitive team sports–like soccer–and spectating are also omitted from the recreational-activities list, the focus again is on subpart (L)'s " any other activity associated with enjoying nature or the outdoors."

As mentioned, we did not decide whether playing or watching softball was "recreation" in City of Bellmead. The court of appeals there, however, considered the issue and decided it was not under the statute. Torres v. City of Bellmead, 40 S.W.3d 662, 664-65 (Tex. App.–Waco 2001), rev'd on other grounds, 89 S.W.3d 611 (Tex. 2002). Although Torres had gone to the city's softball complex to play softball, we declined to consider her purpose for [*52] entering the park, reasoning that her purpose for entry did not control the statute's application. City of Bellmead, 89 S.W.3d at 614 [**8] . Instead of softball, we focused on Torres' use of a swing set in the park because that was the activity that led to her injury. Id. In reversing the court of appeals, we reasoned that the use of playground equipment, although not specifically included in the statutory list as a recreational activity, was nevertheless covered as "the type of activity 'associated with enjoying . . . the outdoors'" under subpart (L). Id. at 615 (quoting Tex. Civ. Prac. & Rem. Code § 75.001(3)(L)).

UTA argues that Williams was also engaged in recreation at the time of her accident because her attendance at the soccer game was similarly an "activity associated with enjoying nature or the outdoors." Tex. Civ. Prac. & Rem. Code § 75.001(3)(L). UTA describes subpart (L) as a "broad catchall provision" sufficient to include spectators in stadiums who watch competitive-sports events.

Williams responds that subpart (L) is not so broad. She argues that the meaning of "any other activity associated with enjoying nature or the outdoors" is informed by the other listed activities and that none of these are similar to watching competitive sports at a large, multipurpose stadium. Underpinning Williams' argument is the principle of ejusdem generis.

That principle is a familiar canon of statutory construction, which provides that [HN8] general terms and phrases should be limited to matters similar in type to those specifically enumerated. City of Houston v. Bates, 406 S.W.3d 539, 545 (Tex. 2013); see also Hilco Elec. Coop. v. Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex. 2003) (noting that "when words of a general nature are used in connection with the designation of particular objects [**9] or classes of persons or things, the meaning of the general words will be restricted to the particular designation"). In a similar vein, we have noted that context is fundamental to understanding the use of language and that meaning cannot ordinarily be drawn from isolated words or phrases but must typically be determined from statutory context. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).

We are also "typically inclined to apply a term's common meaning [unless] a contrary intention is apparent from the statute's context." Bates, 406 S.W.3d at 544. Were we to apply recreation's ordinary meaning here, we would unquestionably include competitive team sports and spectators within its scope. See, e.g., Webster'S Ninth New Collegiate Dictionary 985 (1984) (defining "recreation" generally as refreshment from work or a diversion; in other words, something done to relax or have fun). But [HN9] the Legislature did not provide that the statute was to cover recreation generally but rather defined the term through section 75.001(3)'s list of included activities. And although the Legislature has broadened the statute's reach over the years, it has not made it generally applicable to all refreshing, relaxing, or enjoyable activities. "Recreation" under the statute has remained more specific [**10] than the word's ordinary meaning.

When first enacted in 1965, the Legislature limited the statute to hunting, fishing, or camping on private property.1 Over the last fifty years, the Legislature has added to the recreational-activities list, but as a class these activities have generally remained consistent. For example, the list [*53] was enlarged in 1981 to include "activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing and water sports."2 An accompanying bill analysis explained that the statute's "original purpose" had been "to keep private land open for hunting, fishing, and camping" but that "many other recreational activities [had] gained popularity" since the law's original enactment, "such as water skiing and cross-country hiking, which require wide open spaces or lakes and streams that may not be available in public parks or preserves near urban centers."3 The analysis concluded that expanding the list of activities "would encourage owners to open more land for such uses."4

1 See Act of May 29, 1965, 59th Leg., R.S., ch. 677, § 1, 1965 Tex. Gen. Laws 1551 (protecting "any owner, lessee or occupant of real property giv[ing] permission [**11] to another to enter the premises for purposes of hunting, fishing and/or camping").

2 See Act of May 30, 1981, 67th Leg., R.S., ch. 349, § 2, sec. 6(b), 1981 Tex. Gen. Laws 934.

3 House Study Group, Bill Analysis, Tex. H.B. 749, 67th Leg., R.S. (1981).

4 Id.

For the next fifteen years, the recreational-activities list remained relatively unchanged. During this period, the statute was recodified as chapter 75 of the Civil Practice and Remedies Code,5 and in 1995 it was amended to extend its protection to publicly held land.6

5 Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec. 75.001-.003, 1985 Tex. Gen. Laws 3242, 3299.

6 Act of May 26, 1995, 74th Leg., R.S., ch. 520, § 2, 1995