Summary: This case involves a woman who suffered serious burns and injuries to her legs and abdomen when a firework landed and exploded in her lap at an event in Johnson County, Texas. The Defendants – who promoted, organized and supervised the fireworks event – filed a motion for summary judgement, arguing that they enjoyed immunity from the Plaintiff’s claims under the Texas Recreational Use Statute, which limits their liability only to acts of gross negligence. The Plaintiff filed the following response to the Defendants’ motion for summary judgement, arguing that the Recreational Use Statute does not apply because she was not engaged in a recreational use of Defendants’ property at the time she was injured, and that therefore, the Defendants are liable for acts of negligence as well as gross negligence.
CAUSE NO. DC-C201600111
ANTHONY EUGENE SALMON,
IN THE DISTRICT COURT
Plaintiff Mariana Baldridge (“Plaintiff’) files this Initial Response to Defendants’ Motion for Summary Judgment and would show the Court as follows:
On July 4, 2015, a fireworks event was held in a field located in Johnson County, Texas owned by Defendants and situated at the corner of CR 6161 and FM 917. In order to gain access to the event, would-be spectators were required to pay an entrance fee to enter the property. The event involved numerous participants haphazardly setting off consumer-grade fireworks in a chaotic, disorderly and unsafe manner before a crowd of hundreds of spectators, one of whom was the Plaintiff. At one point during the fireworks event, a firework landed and exploded in Plaintiff’s lap, causing her to suffer serious burn and penetration injuries to the inside of her legs and her abdomen. Defendants were involved in the promotion, organization and supervision of the fireworks event where the accident involving Plaintiff occurred.
Defendants have filed a Motion for Summary Judgment. The Motion asserts that the claims asserted herein by Plaintiff are governed by the Texas Recreational Use Statute. Under that statute, an owner, lessee or occupant of agricultural land who allows others to use the land for a “recreational use” enjoys a type of limited immunity. Specifically, such a defendant owes the same duty to the plaintiff owed to a trespasser: the duty not to injure the plaintiff through willful or wanton acts or gross negligence. Defendants assert that Plaintiff was injured while engaging in a recreational use of its property and that liability to Plaintiff is limited to acts of gross negligence. Defendants further claim that Plaintiff has “no evidence” to substantiate any claims of gross negligence and that they are therefore entitled to judgment in their favor as a matter of law.
As set forth below, Defendants’ Motion should be denied because Plaintiff was not engaged in a recreational use of Defendants’ property at the time she was injured. As a result, the Recreational Use Statute does not apply and Defendants are liable for acts of negligence as well as gross negligence. Their Motion for Summary Judgment should therefore be denied.
ARGUMENT AND AUTHORITIES
I. The Texas Recreational Use Statute applies only where the enjoyment of nature is an integral part of an activity.
A. The statute applies only to outdoor active pursuits such as hunting, fishing and camping.
The Texas Recreational Use Statute applies when an owner, lessee or occupier of agricultural land allows others to use the land for a “recreational use.” Tex. Civ. Prac. Rem. Code § 75.002. If a Plaintiff is not injured during a recreational use of the land, the statute does not apply. See, e.g., Univ. of Texas at Arlington v. Williams, 459 S.W.3d 48, 51 (Tex. 2015) (“The statute, however, only applies to recreational uses, which the statute defines through a non-exclusive list of included activities.”). The statute lays out a non-exclusive, but illustrative, list of specific recreational activities to which it applies. These specific activities are:
- pleasure driving, including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles;
- nature study, including bird-watching;
- cave exploration;
- waterskiing and other water sports;
- bicycling and mountain biking;
- disc golf;
- on-leash and off-leash walking of dogs; or
- radio control flying and related activities.
Tex. Civ. Prac. Rem. Code § 75.001(3). Obviously, each of these activities are ones in which the participant is engaged in an outdoor active pursuit. None of these are mere sedentary pursuits. And none of them are pursuits in which the participant merely watches someone else engaged in an activity such as attending a stock car race or baseball game. The Texas Supreme Court has noted that “spectating,” that is, watching others engaged in an activity, is not included among the specifically-enumerated activities in the statute. Williams, 459 S.W.3d at 51.
B. The added “catch-all” provision cannot be interpreted by using the common dictionary definition of “recreation.”
In 1997, the Texas Legislature added a new “catch-all” provision to the statute as Subsection L. According to that provision, a recreational use includes “any other activity associated with nature or the outdoors.” Tex. Civ. Prac. Rem. Code § 75.001(3)(L). While this description might appear broad, the Texas Supreme Court in Williams found it to be much narrower than it appears. In that case, the court held that courts construing the statute could not use the normal, dictionary definition of “recreation” to determine whether something constituted a recreational use because “‘recreation’ under the statute has remained more specific than the word’s ordinary meaning.” Williams, 459 S.W.3d at 52. As the court noted:
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.
Id. Thus, any attempt to determine whether an activity falls within the statute by resort to a commonly understood definition of “recreation” is simply improper. Id.
C. The added “catch-all” provision must be interpreted by reference to the specifically identified recreational activities listed in the statute.
Rules of construction require that the newly added “catch-all” provision be read in context with, and limited to matters similar to, the specifically-enumerated list of activities that count as a recreational use. Williams, 459 S.W.3d at 53. In Williams, the court soundly rejected the notion that the new Subsection L was meant to encompass other enjoyable outdoor activities regardless of their similarity or dissimilarity to the specific activities listed in the statute, holding that “[p]rinciples of ejusdem generis, however, counsel that a general or broad provision included within a more specific list should be read in context and limited to matters similar in type to those specifically enumerated.” Id. at 53-54. Applying these principles, the court held that Subsection L does not apply to an activity merely because the activity typically occurs outdoors rather than indoors, stating that Subsection L:
- “does not ‘catch’ an activity simply because it occurs outside;”
- was “not intended simply to incorporate all other outdoor activities into the statute;” and
- “cannot include every enjoyable outdoor activity.”
Id. at 54; see also Id. at 59 (Guzman, concurring) (“The Legislature did not purport to incorporate an activity merely because it occurs outdoors.”); Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018 at *6 (Tex. App.—Fort Worth May 19, 2011, pet. denied) (“we do not think the statutory definition of recreation is so broad as to encompass all activity beyond work as recreation as long as it is conducted outdoors.”).
D. The key to applying and interpreting Subsection L is to focus on the word “nature” rather than “outdoors.”
The key to applying and interpreting Subsection L is to focus on the word “nature” rather than “outdoors.” As already stated, not all outdoor activities are meant to be included as “recreation” under the statute. Id. at 54, 59. Rather, to be a recreational use, an activity “must be associated with nature, or that part of the physical world that is removed from human habitation.” Id. at 55. As such, the court in Williams held, although watching a soccer game in an open-air stadium occurs outdoors, it is not a recreational use because nature is not integral to the enjoyment of watching competitive sports. Id. In other words:
“Nature” and the “outdoors” are synonyms, descriptive of “that part of the physical world that is removed from human habitation.” Gathering together in a stadium to cheer a soccer team is not to remove oneself from human habitation but to embrace it; it is not the pursuit of nature but rather the celebration of organized human activity.
Id. at 54; Id. at 59 (Guzman, concurring) (the Texas Legislature did not intend to include within the statute “activities that, while temporally related to a recreational activity, have no actual connection to an individual’s enjoyment of nature or the outdoors.”). Because the focus of the plaintiff’s activity in Williams was the soccer competition itself, not the open-air stadium where the event took place, the court held that it was not a recreational use under the statute:
“[W]here 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, as JUSTICE BOYD notes. 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.
Id. at 55.
II. The fireworks event was crazy, chaotic and crowded.
In order to convince the Court that the fireworks event was a recreational use of Defendants’ property, they mischaracterize the event as a calm, bucolic event where relaxed spectators quietly watched an organized fireworks show set in a beautiful, natural environment. They even go so far as to claim that Plaintiff was “essentially picnicking” at the time she was injured simply because she drank a cocktail while watching the fireworks! Defendants’ Motion at 9. This is absurd. See, e.g., Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018 at *6 (Tex. App.—Fort Worth May 19, 2011, pet. denied) (attendance at outdoor garden wedding could not be characterized as a “picnic” even though dinner was served outdoors because the attendees were there for a wedding, not to eat.).
Defendants’ description of the fireworks event could not be further from the truth. First, several firefighters who were at the event to deal with spot fires testified that the scene was “chaotic and crazy.” See Deposition of Chad Hutchinson attached hereto as Exhibit A at pp. 47-50. It was so “chaotic and crazy” that Johnson County ESD Fire Captain Chad Hutchinson was “concerned” and believed that the scene was not “a safe environment for the people that would have been in the area.” Id. at 48-50. It was a hardly a picnic to use Defendants’ vernacular.
Moreover, the event was crowded. Well over 100 cars had entered the lot where the fireworks were to be discharged. See Deposition of Lynetta Seeton attached hereto as Exhibit B at pp. 83-84 (Defendants charged $20 per car to enter the property); Defendants’ Motion at 4 (“Defendants used the entrance fee money to pay for cleanup of the Pop Site and donated the remainder to the volunteer firefighters and police officers”); Deposition of Chad Hutchinson attached hereto as Exhibit A at p. 46 (Defendants gave $2000 to the fire department). They parked along the perimeter of the fenced-in lot where the fireworks event occurred. See Deposition of Tony Salmon attached hereto as Exhibit C at pp. 82-83; Deposition of Morris Noles attached hereto as Exhibit D at p. 51.
Although the witnesses testified that the lot was five acres, it was closer to four acres. See Google Map attached hereto as Exhibit E; Deposition of Lynetta Seeton attached hereto as Exhibit B at pp. 82-84; Exhibit 8 from Deposition of Lynetta Seeton attached hereto as Exhibit F. In addition to the more than 100 cars parked within the four- acre fenced lot, Fire Captain Hutchinson testified that there were “hundreds” of people attending or participating in the fireworks event. See Deposition of Chad Hutchinson attached hereto as Exhibit A at p. 51. Tony Salmon estimated there were 200-300 people. Deposition of Tony Salmo attached hereto as Exhibit C at p. 103.
Not only was the event, crazy, chaotic and crowded, it was not a traditional fireworks show were people sit on lounge chairs while a choreographed and organized display is fired high into the night sky. In fact, Defendants have stated that they “do not put on a fireworks show and do not sell any commercial or professional firework displays.” Defendants’ Motion at p. 3. Instead, the event simply consisted of hundreds of amateurs firing off their “low grade consumer fireworks” that they brought with them or purchased from Defendants. Deposition of Lynetta Seeton attached hereto as Exhibit B at 15, 63-64; Defendants’ Motion at pp. 2-3. One witness testified that things were “out of order” and that people were launching fireworks from their pickup trucks and throwing fireworks into bonfires on the property. Deposition of Sterling Florentin attached hereto as Exhibit G at pp. 41-44. It was clearly not the traditional type of organized, relaxing fireworks show that Defendants attempt to conjure in their Motion.
III. The fireworks event was not a recreational use under the statute.
A. The statute must be construed narrowly.
Because watching fireworks is not specifically listed in the statute, the Court must interpret the language “any other activity associated with enjoying nature or the outdoors” to determine whether watching fireworks falls within its purview. Tex. Civ. Prac. Rem. Code § 75.001(3)(L). In interpreting the statute, the Court is required to construe it narrowly:
Because the statute deprives invitees of their common law right to recover for injuries caused by a landowner’s negligence, and instead permits them to recover only upon proof of gross negligence, malicious intent, or bad faith, see TEX. CIV. PRAC. & REM. CODE § 75.002(d), we must strictly construe it and apply it only to cases that are “clearly within its purview.”
Williams, 459 S.W.3d at 62 (Boyd, concurring); Id. at 59 (Guzman, concurring) (“we must construe the catchall provision narrowly to encompass only those activities closely connected to enjoying the outdoors.”); Satterfield v. Satterfield, 448 S.W.2d456, 459 (Tex.1969) (“if a statute deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview.”).
B. The fireworks event was not a recreational use under the statute because it is dissimilar to the activities specifically listed in the statute.
The fireworks event was not a recreational use under the statute because it is dissimilar to the activities specifically listed in the statute. As the court stated in Williams, “[p]rinciples of ejusdem generis, however, counsel that a general or broad provision included within a more specific list should be read in context and limited to matters similar in type to those specifically enumerated.” Id. at 53-54; Reyes v. City of Laredo, 335 S.W.3d 605, 607 (Tex. 2010) (“The Act does not define ‘special defect,’ and so, ‘[u]nder the ejusdem generis rule, we are to construe special defect to include those defects of the same kind or class as the ones expressly mentioned”—that is, excavations and obstructions on roadways.”); In re Readyone Industries, 394 S.W.3d 697, (Tex. App.—El Paso 2013, no pet.) (“Under the doctrine of ejusdem generis, when general words in a statute follow specific examples, the general words are to be restricted in their meaning to a sense analogous to the same kind or class as those expressly mentioned.”).
All of the listed activities in Section 72.01 involve active participation and physical exertion by the plaintiff. In each case, the plaintiff is physically doing something: swimming, hiking, driving, exploring, etc. Similarly, all of the cases Defendants cite involve a physical activity by the plaintiff. See, e.g., City of Bellmead v. Torres, 89 S.W.3d 611, 615 (Tex. 2002) (using a swing on a swingset at a park was a recreational use); City of Plano v. Homoky, 294 S.W.3d 809, 815 (Tex. App.—Dallas 2009, no pet.) (using a municipal golf course was a recreational use); Karl v. Brazos River Authority, 494 S.W.3d 168, 172 (Tex. App.—Eastland 2015, pet. denied) (swimming was a recreational use).
Here, by contrast, Plaintiff was simply watching other people in a crowded field launch consumer grade fireworks. Plaintiff’s act of watching fireworks is dissimilar to the other items listed in the statute and should therefore not be included within its reach, especially since the Court is required to construe the statute narrowly. See, e.g., Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018 at *6 (Tex. App.—Fort Worth May 19, 2011, pet. denied) (“we do not think that the wedding transforms from a ceremony to recreation simply because it occurred outside. We believe there has to be something more—an activeness, a physical exertion, or immersion in the physical elements of nature—that is essential to finding an activity ‘associated with enjoying nature or the outdoors’ as the statute intends.”); Busa v. City of Bridgeport, No. CV 25 14 66 S, 1994 WL 260869 at *3 (Conn. Super. Ct. June 7, 1004) (“being a spectator at a band concert is not a physical, participatory, outdoor activity. Therefore, it is found that plaintiff Anthony Busa’s conduct does not constitute a ‘recreational purpose’ within the meaning of the statute.”); Matthews v. Elk Pioneer Days, 824 P.2d 541, 543 (Wash. App. 1992) (attending outdoor festival was not a “recreational use” of land because all of the examples in the non-exclusive, illustrative list of activities in the statute “are physical in nature and require the active involvement of the person using the land.”); Villanova v. American Federation of Musicians Local 16, 301 A.2d 467, 469 (N.J. Super. Ct. App. Div. 1973) (musician participating in outdoor concert was not engaged in “recreational activity” because the examples in the statute “are more physical than not” and are “activities in which the individual using the land is himself involved.”).
C. The fireworks event was not a recreational use under the statute because spectator events are not a recreational use.
In determining whether the fireworks event was a recreational use of Defendants’ land, “the relevant inquiry is what the plaintiff was doing at the time she was injured.” Defendants’ Motion at 8. As stated above, Plaintiff was merely watching hundreds of amateurs in a crowded field launch low-grade consumer fireworks. Although Plaintiff brought fireworks with her, she decided to leave them in her vehicle and not discharge them because the scene was so chaotic that she felt she needed to focus on what was going on around her. See Deposition of Mariana Baldridge attached hereto as Exhibit H at pp. 61-62. Plaintiff was a spectator, not a participant.
Spectator events are nowhere found in the Texas Recreational Use Statute’s list of recognized recreational uses. And the Texas Supreme Court specifically held in Williams that being a spectator at an outdoor soccer game was not “recreation.” Williams, 459 S.W.3d at 54. In so doing, it specifically rejected the argument that there was no difference between those who watch an event and those who participate in it. Williams, 459 S.W.3d at 54 (“UTA argues that no difference exists between playgrounds and sports stadiums or between those who watch or play at either place because both activities are ‘associated with enjoying nature or the outdoors’ within the meaning of subpart (L). We disagree.”). Applying its holding in Williams, the Texas Supreme Court subsequently held in Lawson v. Diboll, 472 S.W.3d 667, 669 (Tex. 2015) that watching a youth softball game at an outdoor softball complex was not a “recreational use” under the statute. There is simply no justification for finding that Plaintiff was engaged in a “recreational use” of Defendants’ land while watching an amateur fireworks event in a crowded field given the Texas Supreme Court’s recent holdings that watching an outdoor soccer match or an outdoor softball game is not a recreational use.
D. The fireworks event was not a recreational use under the statute simply because it occurred outdoors.
Defendants assert that the fireworks event was a recreational use under the statute because watching fireworks “is not an activity that can be accomplished indoors or if weather is poor or rainy.” Defendants’ Motion at pp. 9-10. This, of course, is not true. Sporting events have used indoor fireworks on many occasions, as have indoor concerts and other events. And fireworks shows occur in rainy or inclement weather all the time. More importantly, even if all fireworks events occurred outdoors and only in good weather, this fact would not bring them within the statute’s purview. Williams, 459 S.W.3d at 54 (Subsection L “does not ‘catch’ an activity simply because it occurs outside” and was “not intended simply to incorporate all other outdoor activities into the statute.”); Id. at 59 (Guzman, concurring) (“The Legislature did not purport to incorporate an activity merely because it occurs outdoors.”); Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018 at *6 (Tex. App.—Fort Worth May 19, 2011, pet. denied) (“we do not think the statutory definition of recreation is so broad as to encompass all activity beyond work as recreation as long as it is conducted outdoors.”).
E. The fireworks event was not a recreational use under the statute because the enjoyment of nature was not integral to its enjoyment.
Defendants claim that the fireworks event “[e]licit[ed] enjoyment of being outside in nature on a warm, clear Texas summer evening.” Defendants’ Motion at 10. But enjoying nature is not integral to watching fireworks. Fireworks and other pyrotechnics are often used at indoor sporting events, concerts and stage shows. And even traditional fireworks shows occur over crowded downtown areas such as Dallas and Fort Worth.
Moreover, the venue of Defendants’ fireworks event can hardly be described as part of “nature.” It occurred in a crowded, four-acre lot filled with over 100 cars and hundreds of participants. The lot itself was on a busy road, FM 917. See Google Map attached hereto as Exhibit I. Adjacent and nearby businesses included a pipeline yard, two auto repair shops, a paint shop and an RV park. Id. Under the facts here, Defendants’ fireworks event cannot be considered a “recreational use” because nature was not integral to watching the event:
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 . . . we conclude that subpart (L)’s so-called “catch-all” does not catch this activity.
Williams, 459 S.W.3d at 55.
F. The fireworks event was not a recreational use under the statute because the focus of the event was on the fireworks rather than on nature.
Finally, the fireworks event was not a recreational use under the statute because the focus of the event was on the fireworks rather than on nature. The focus when watching fireworks is on the man-made spectacle of the fireworks themselves, not on the environment in which they are displayed. See, e.g., Shopey v. Lupoli, No. CV 91 0055850, 1994 WL 161357 at *3 (Conn. Super. Ct. 1994) (“In this particular instance, however, the public park was being utilized by the plaintiffs only as a spectator point to view a man-made activity. The fireworks display, not the public land, was the object of the plaintiffs’ viewing and enjoyment. Accordingly, the plaintiffs’ activity does not qualify as a ‘recreational purpose.’”). The Texas Legislature did not intend to include within the statute “activities that, while temporally related to a recreational activity, have no actual connection to an individual’s enjoyment of nature or the outdoors.” Williams, 459 S.W.3d at 59 (Guzman, concurring). Here, watching fireworks in a crowded field is no different than watching a drive-in movie. In both instances, the focus is on the man-made entertainment: fireworks in one case and a movie in the other. The outdoor setting, while perhaps enhancing the experience, is not the focus of it. For this additional reason, Plaintiff’s spectating at Defendants’ fireworks event was not a “recreational use” of their land. Williams, 459 S.W.3d at 55 (the court noted that there was no recreational use because the focus of the plaintiff’s activity was the soccer competition itself, not where the event took place). Defendants’ Motion should therefore be denied.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that upon hearing, the Court deny Defendants’ Motion for Summary Judgment and grant Plaintiff such other and further relief to which she may be justly entitled.
Eric D. Pearson
State Bar No. 15690472
State Bar No. 24040092
James Craig Orr, Jr.
State Bar No. 15313550
Heygood, Orr & Pearson
6363 North State Highway 161
Irving, Texas 75038
ATTORNEYS FOR PLAINTIFF
 This Initial Response addresses only the applicability of the Texas Recreational Use Statute. Plaintiff intends to file a supplemental response addressing Defendants’ claim that Plaintiff has no evidence to support her gross negligence claim.