March 2012 - Parks & Recreation - 30

law review continued from page 27

state RUS is defined as " an act or omission involving subjective awareness of an
extreme degree of risk, indicating conscious indifference to the rights, safety, or
welfare of others. "
In this particular case, a college student, Brad McGehee, fell 60 feet to his

death when the solid ground on a cliff
collapsed underneath him. At the time,
McGehee had been watching boat races at Circle Point in Cameron Park, a municipal park located in the City of Waco.
The cliff was a natural condition altered
only by nature, consisting of loose rock

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and natural cracks. The City had constructed a wall in front of the cliff which
was accompanied by a sign warning
" FOR YOUR SAFETY DO NOT GO BEYOND WALL. " The City had not altered,
modified, or excavated the limestone cliff
beyond the stone wall in front of the cliff.
McGehee had crossed the wall and was
beyond the warning sign when he fell to
his death.
The City's first responder to the scene
of the accident testified that he was aware
of six incidents involving falls from the
cliffs in Cameron Park, including the incident involving McGehee. While he was
not aware of any other injuries caused by
crumbling rocks, he did testify that one
could see where rocks had fallen along
the trails below the cliff over the years.
Plaintiff Debra Kirwan, the representative of McGehee's estate, alleged McGehee's death was caused by the City's
gross negligence. To establish gross
negligence under the state recreational
use statute, Kirwan would have to produce evidence of " the City's subjective
awareness of the cliff's alleged extreme
degree of risk and the City's conscious
indifference to these risks. " As evidence
of gross negligence, Kirwan cited " the
lack of any sign specifically warning of
the risk of fatality resulting from the condition of the Cameron Park. " According to
Kirwan, " the City continued to allow park
patrons into the areas with the unstable
rock " despite the fact that " other park patrons had died or been seriously injured
by the condition of the premises. "
In response, the City claimed " as a
matter of law, a landowner may not be
grossly negligent for failing to warn of the
inherent dangers of nature. " As a result,
the City argued that Kirwan had " failed
to allege the City was grossly negligent
in creating a condition that a recreational
user would not reasonably expect to encounter on the property in the course of
permitted use. " The trial court agreed
and dismissed Kirwan's claims against
the City. The state appeals court, however, reversed the trial court's judgment.
In the opinion of the appeals court, the
trial court had erred in concluding " all

March 2012 - Parks & Recreation

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