Lubbock County Water Control and Improvement District No. 1 v. Jonathan Rodriguez and Abrisian Rodriguez, Individually and as Next Friends of E.R., R.R., and A.R., Minors

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00424-CV

LUBBOCK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1,
APPELLANT

V.

JONATHAN RODRIGUEZ AND ABRISIAN RODRIGUEZ, INDIVIDUALLY
AND AS NEXT FRIENDS OF E.R., R.R., AND A.R., MINORS, APPELLEES

On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. 2021-544,990, Honorable John C. Grace, Presiding

June 11, 2024
DISSENTING OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Being outdoors and watching fireworks, as Rodriguez did here, is not “recreation”

as contemplated by the Recreational Use Statute. When coupled with the knowledge

that the Recreational Use Statute defines “recreation” as any other activity associated

with enjoying nature or the outdoors, it seems like a strange outcome, but nevertheless,

this is what the majority concluded. Because the majority relied almost entirely on
University of Texas at Arlington v. Williams, 459 S.W.3d 48 (Tex. 2015), a plurality opinion

which is not binding precedent, I respectfully dissent.

ANALYSIS

Relying on Williams, the majority’s analysis seems to turn on two issues:

spectating (passive observation) and manmade. As an initial matter, the Williams opinion

is a plurality opinion. 459 S.W.3d at 49–57 (plurality op.). In Williams, the Court was

fractured. Four justices joined the plurality opinion. Id. There were two separate

concurring opinions, one joined by two justices, and another joined solely by its author.

Id. at 57–63 (concurring ops.). The remaining two justices concurred in part and

dissented in part. Id. at 63–67 (concurring and dissenting op.). While a majority agreed

on the result, which was that the Recreational Use Statute did not apply to the spectator’s

claims because she was not engaged in a recreational activity under the statute, a

majority did not agree as to the rationale. In short, a majority of the Court did not embrace

the plurality’s reasoning. See id. at 54–55 (Devine, J., plurality op.) (reasoning that

spectating, which is not expressly listed as a recreational activity, does not qualify as

recreation under the statute’s catch-all provision because spectating is not activity

associated with enjoying nature or outdoors, terms that refer to portion of physical world

removed from human habitation, because nature and outdoors are not integral to

enjoyment of competitive sports, the focus of which is competition itself rather than where

competition takes place); id. at 57–59 (Guzman, J., concurring) (reasoning that plaintiff

was not even spectating when injured but was instead trying to acquire and sign form

releasing child from school after soccer match and thus was not recreating because

activity at time of injury controls and statute neither defines acquisition or signing of
2
release as recreation nor denominates any similar activity as recreation); id. at 60–63

(Boyd, J., concurring) (reasoning that statute cannot be sensibly applied based on its own

terms, resorting to canon of construction that statute depriving persons of common-law

right must be strictly limited to its plain meaning and not applied in cases that do not

clearly fall within scope of statute, and concluding that spectating at soccer match does

not clearly fall within scope of this statute).

Plurality opinions are not binding precedent. Cincinnati Life Ins. Co. v. Cates, 927

S.W.2d 623, 626 (Tex. 1996). When, as in Williams, a majority of the Supreme Court

does not agree on the rationale for its judgment, “the judgment itself has very limited

precedential value and would control the result only in identical cases.” Univ. of Tex.

Med. Branch at Galveston v. York, 871 S.W.2d 175, 176–77 (Tex. 1994). The decision

does not otherwise bind the lower courts. Id. Under these circumstances, the holding of

the Court—to the extent that there is a holding—consists of the position taken by those

justices who concurred on the narrowest grounds. Worthy v. Collagen Corp., 967 S.W.2d

360, 368 (Tex. 1998).

In Williams, the position taken by those justices concurring on the narrowest

grounds, albeit for different reasons, was that spectating at a competitive-sports event is

not recreation under the Recreational Use Statute. 459 S.W.3d at 54–55 (plurality op.);

id. at 60–63 (Boyd, J., concurring); see also Lawson v. Diboll, 472 S.W.3d 667, 667 (Tex.

2015) (per curiam) (stating Williams “determined that the recreational use statute is

inapplicable to spectators at outdoor competitive sporting events” and citing Justice

Devine’s plurality opinion and Justice Boyd’s concurrence in support of this proposition).

On its face, the Court’s narrow holding is not dispositive of the present appeal, which
3
turns on whether Rodriguez’s participation in a different outdoor activity, picnicking and

enjoying fireworks at a public lake, rather than spectating at a competitive-sports event,

is recreation under the statute.

We may, of course, rely on the reasoning of plurality opinions, like the one in

Williams, to the extent we find that reasoning to be both on point and persuasive. D.M.

Diamond Corp. v. Dunbar Armored, Inc., 124 S.W.3d 655, 659 n.6 (Tex. App.—Houston

[14th Dist.] 2003, no pet.). But in instances when we do so, we must be careful to apply

the Court’s existing precedent as we find it, rather than predicting whether the Court will

embrace a view expressed by a plurality, because it is not the role of the courts of appeals

to abrogate or modify the Court’s precedent. Lubbock Cty., Tex. v. Trammel’s Lubbock

Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002).

Here, I conclude that Williams and this appeal are so dissimilar to one another as

to make the Williams plurality’s reasoning unsuitable. In Williams, the Court confronted

a materially different scenario than the one before us. Namely, the Court had to decide

whether an activity—spectating at a competitive-sports event—was encompassed by the

Recreational Use Statute’s catch-all provision concerning “any other activity associated

with enjoying nature or the outdoors” when that activity did not resemble any of the

activities expressly listed by the statute’s laundry-list definition of recreation. See 459

S.W.3d at 49 (Devine, J., plurality op.) (identifying question as “whether the statute’s

recreational-activity list reasonably includes a spectator at a competitive-sports event”

and agreeing with conclusion of court of appeals that “this activity was too dissimilar to

the others on the list to be included” among those covered by statute’s definition of

recreation).
4
Now we must turn to the two issues the majority relied on in its analysis, spectating

and manmade. As outlined above, the majority utilizes the word “spectate” in its analysis

from Williams. However, the word “manmade” never appears in Williams. I suspect the

majority uses the word “manmade” in place of “human habitation” – the Williams plurality’s

additional reasoning that the catch-all provision’s reference to “enjoying nature or the

outdoors” necessarily limits its application to the enjoyment of “that part of the physical

world that is removed from human habitation.” Id. at 54 (Devine, J., plurality op.) (quoting

from thesaurus to define terms “nature” and “outdoors” because statute does not define

these two terms). As noted, however, a majority of the Court did not embrace this

position.

The plurality reasoned that the enjoyment of nature or the outdoors is not essential

to spectating in the same way that it is integral to playground activities, like sitting on a

swing as addressed by the Court in Torres, because the former constitutes a celebration

of organized human activity while the latter is a respite from organized human activity.

Compare Williams, 459 S.W.3d at 54 (Devine, J., plurality op.) (“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.”), with id. at 55 (“In contrast, a park playground is not so much a celebration of

organized human activity as it is a respite from it—a place where children can run, play,

and otherwise enjoy the outdoors. The enjoyment of nature or the outdoors is thus a

significant part of playground activity but, is not integral to the enjoyment of competitive

sports.”). The plurality did not propose a simple distinction between activities occurring

in areas of human habitation and those occurring outside of these areas. Rather, the

5
plurality engaged in a more subtle inquiry, assessing the degree to which an activity not

expressly listed in the statute reflected the kind of organized human activity associated

with civilization and thus cannot be said to be focused on the enjoyment of nature or the

outdoors, which lie outside the ordered bounds of human settlement. See id. at 55

(concluding statute’s catch-all provision did not encompass spectating at a competitive-

sports event, as “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’”).

Accordingly, even if we were to employ the Williams plurality’s reasoning here, this

line of reasoning would not lead us to conclude that the Recreational Use Statute is

inapplicable in this instance. Unlike spectating at a competitive-sports event at a stadium,

enjoying fireworks at a public lake is not susceptible to characterization as a celebration

of organized human activity. Unlike a competitive-sports event, where you attend to

watch your favorite player, most people do not know or care who is launching the

fireworks. You do not watch fireworks for people, you watch fireworks for the colors and

sounds in the sky. I agree with the majority that simply because something can occur

outdoors, does not affect the analysis of whether or not the Recreational Use Statute is

applicable; however, fireworks and the outdoors are integral. You cannot enjoy fireworks

indoors.

Notably, all the justices who joined the Court’s judgment in Williams agreed that to

fall within the scope of the statute, any activity not expressly listed under the definition of

recreation must bear some resemblance to one of those expressly listed. See Williams,

459 S.W.3d at 53–55 (Devine, J., plurality op.) (reasoning that statute must be read to

encompass only activities similar to those expressly listed in definition of recreation); id.
6
at 58 (Guzman, J., concurring) (agreeing that unlisted activities must be similar to those

that are listed to fall within catch-all provision of statutory definition of recreation); id. at

60–62 (Boyd, J., concurring) (agreeing in principle that unlisted activities must be similar

to those listed to qualify as recreation but concluding that listed activities are so varied

that statute was difficult to decipher, and that spectating at a competitive-sports event

does not clearly fall within language of catch-all provision of statute’s definition of

recreation). The mode of analysis we apply today comports with this majority view of the

statute. Here, watching fireworks is similar to watching “radio control flying and related

activities.” TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(3)(P). Both activities you sit and

enjoy a show in the sky. The only difference, instead of the operator flying a radio-

controlled plane, the operator launches a firework into the sky.

When does picnicking end?

In Torres, the Supreme Court of Texas explained that, because the Recreational

Use Statute is a premises defect statute, whether a particular action qualifies as

“recreation” turns on the precise activity the plaintiff was engaged in when the injury

occurred. 89 S.W.3d at 614. Texas courts have also recognized that persons may be

engaged in “recreation” when engaged in acts that are incidental to their active

participation in a recreational activity. See, e.g., City of Dalhart v. Lathem, 476 S.W.3d

103, 108 (Tex. App.—Amarillo 2015, pet. denied) (applying statute when child injured

while seated at table inside pool facility during break mandated by lifeguards); Karl v.

Brazos River Auth., 494 S.W.3d 168, 172–74 (Tex. App.—Eastland 2015, pet. denied)

(applying statute when plaintiff injured while walking on premises en route to go

swimming).
7
Other than the recitation of case law, the majority’s analysis on the activity

Rodriguez was engaged in at the time simply accepts Rodriguez’s description as

“spectating fireworks.” There is no analysis on whether or not Rodriguez was picnicking.

When does picnicking end? It does not end when the food is consumed. Certainly, a

family could lie on a blanket and enjoy clouds after finishing their meal during a picnic.

Can you not bird watch and enjoy radio controlled flying shows when picnicking? Just

because you are also watching fireworks, does not mean you are finished picnicking.

In any event, I conclude the Recreational Use Statute applies to Rodriguez’s

claims. Even if his picnic had ended someway, enjoying fireworks is so similar to viewing

radio controlled flying planes and integral to the outdoors, the Recreational Use Statute

should apply.

Issue 2 – Gross Negligence

“Gross negligence” is defined as an act or omission “which when viewed

objectively from the standpoint of the actor at the time of its occurrence involves an

extreme degree of risk, considering the possibility and magnitude of the potential harm to

others and of which the actor has actual, subjective awareness of the risk involved, but

nevertheless proceeds with conscious indifference to the rights, safety, or welfare of

others.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11). A plaintiff must prove gross

negligence by clear and convincing evidence. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10,

21 (Tex. 1994).

The National Fire Protection Association standards require a minimum radius of

420 feet between a fireworks launch site and potential spectators. In the underlying case,

8
Extreme Pyrotechnics gained approval for a launch site in accordance with those

standards. However, prior to the fireworks display, the launch site was moved causing

the fallout area to cover the area where Rodriguez was observing the fireworks.

An employee with Extreme Pyrotechnics testified he moved the launch site at the

direction of the general manager for WCID; however, the general manager disputed the

testimony. The dispute notwithstanding, Rodriguez did not present any evidence to show

WCID knew the changed location of the launch site would affect the fallout area exposing

him to the likelihood of serious injury. Neither did Rodriguez present any evidence that

the changed location violated the National Fire Protection Association standards. See

Agrium U.S., Inc. v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005, pet. denied)

(noting that a violation of a law or regulation does not show conscious indifference).

Rodriguez failed to present evidence WCID knew the changed launch site posed an

extreme degree of risk and that it was aware of the risk but proceeded with conscious

indifference to the safety of others. Thus, he failed to prove WCID caused his injuries

through gross negligence.

CONCLUSION

Having determined that the Recreational Use Statute does apply to Appellees’

claims, and Rodriguez failed to present evidence of gross negligence, I would reverse

and render, granting WCID’s plea to the jurisdiction. Accordingly, I respectfully dissent.

Alex Yarbrough
Justice

9