Texas, like many states, has Recreational Use Statutes (RUS) that shield both government entities and landowners from liability if they allow the public to use their land for recreational purposes. In most cases, landowners or the government agency charged with managing public lands will not be liable for injuries or deaths that occur while visitors are engaged in recreational activities like fishing, camping, hiking, kayaking or swimming.
The rules are different if a landowner charges a fee for recreational use of the land, although their responsibility may vary depending on the expectation of protection or safety given to visitors.
Government agencies are also afforded enhanced liability protection through sovereign immunity laws, which provide more robust protection than RUS.
Gross Negligence Exceptions
There are exceptions to limited liability protection, particularly for actions that constitute gross negligence, malicious intent or willful or wanton acts.
In these cases, failure to address a known dangerous condition can expose a public entity or private landowner to liability. However, a lack of knowledge of the hazard may be an effective defense.
For example, if a park service doesn’t put up signs warning swimmers to avoid a lake that contains trash or sharp rocks, and someone dives into the lake and is injured by the debris, the public entity could potentially be liable.
The plaintiff would still need to establish that the park service knew of the dangerous conditions. If the park service didn’t know about the rocks or people dumping trash in the lake, and a swimmer is injured, the park service likely can’t be held liable.
Even if the plaintiff can prove the park service knew about the hazard, the agency may still invoke sovereign immunity, making it more difficult or event impossible to hold them liable for a drowning.
If a swimmer files a complaint about sharp rocks or trash in the lake, and the landowner or manager fails to take action, they could be liable for drownings or other injuries that result from the hazard. The number of complaints or incidents may influence the ability of injured parties to seek damages. Repeated complaints and previous incidents can strengthen a claimant’s case.
There could also be scenarios where a property owner is required by local ordinances to put up barriers or fences around restricted or hazardous water, such as retention ponds. These ponds may have strong currents from powerful drainage pipes or pumps, poor water quality, unpredictable depths, and steep slopes or drop-offs that make falls more likely.
Although Texas doesn’t have state-wide statutes about retention ponds, some jurisdictions may have municipal ordinances or safety regulations regarding fencing or signage. If a property owner failed to follow local ordinances, and someone was injured in the retention pond when swimming, the landowner could potentially be liable.
Even if local ordinances don’t require fencing, a landowner may still want to install it due to risks under the attractive nuisance doctrine. If children trespass to swim in a retention pond and one of them drowns, the landowner could potentially be liable despite not inviting the children on the property.
Sovereign Immunity and Its Effect on Drowning Injuries or Deaths
Sovereign immunity is a legal doctrine that shields government entities from being sued for damages without their consent. Although gross negligence exceptions can still apply, it is typically far more difficult to hold a government agency responsible for drownings than a private landowner.
Texas does have the Texas Tort Claims Act, which does allow individuals to sue government entities for certain types of negligence, but even this law has restrictions.
Why Would a Government Agency Ever Consent to Be Held Liable?
Although it is uncommon, there are occasional situations where a government agency will accept liability or may be legally compelled to do so under specific circumstances.
The risk of liability is an important deterrent in every facet of private and public policy. Businesses would be much less likely to adopt rigorous safety measures if they didn’t fear financial liability for injuries they cause, and the same can be said of public agencies.
Agencies may also desire to maintain public trust. A government agency may not want the blowback of a highly publicized incident in which they refuse to accept liability despite clear negligence on the part of their policies or an employee.
What Are Scenarios in Which a Private Landowner Might Be Liable for Drownings Despite RUS?
There are differences between recreational use and a private social arrangement. RUS generally doesn’t apply to private residential properties used for personal purposes. Homeowners owe a duty of care to guests that extend beyond what’s required under RUS.
For example, if a homeowner with a pool allows their children’s friends to use their pool, and one of those friends drowns, the homeowner would not be protected by RUS.
RUS also wouldn’t protect a landowner who encouraged high-risk recreational activities, like cliff diving into shallow water. A tire swing installed at the top of a cliff overlooking a shallow pond may be considered the facilitation of a hazardous activity. The limited liability protection of RUS might not protect the landowner if someone used the tire swing, hits their head, and drowns.
Receive Aggressive Representation After Drowning Injuries or Deaths in Houston
Families of people who have suffered serious drowning injuries or deaths in the Houston area deserve justice. In cases of negligence, justice often comes in the form of monetary compensation for medical costs, lost wages and pain and suffering.
The Weycer Law Firm is dedicated to representing families of people injured in drownings. Call us at (713) 668-4545 for a free case evaluation.