Justices find Waco not negligent in death of man who fell from cliff

The SE Texas Record Dec. 2, 2009, 12:39pm

AUSTIN – "For your safety do not go beyond wall," a sign advised in capital letters at a cliff in a Waco park, yet the estate of a man who fell from the cliff blamed the city.

The estate's claim failed at the Supreme Court of Texas on Nov. 20, as all nine justices absolved Waco of gross negligence in the death of Brad McGehee.

"Nature is full of risks and it is certainly foreseeable that human interaction with nature may lead to injuries and possibly even death," Justice Paul Green wrote.

"Our state parks and lands are covered by numerous potentially dangerous natural conditions: cliffs; caves; waterfalls; swamps and other wetlands; mountains and canyons' surf, and various animal creatures," he wrote.

Both landowners and reasonable recreational users are aware of risks, Green wrote.

The decision reversed 10th District appeals judges in Waco, who found that the estate raised issues of fact about negligence.

According to court documents, McGehee climbed over the wall in 2004 and sat at the edge of the cliff to watch boats race in Cameron Park. The cliff crumbled and he fell 60 feet.

Debra Kirwan sued for the estate in 2005, claiming Waco's gross negligence waived the immunity that normally shields local governments from liability claims.

She argued that the sign didn't specifically warn about fatal risk, that the city allowed people to climb the wall, and that falls from the cliffs had previously injured people.

She submitted to McLennan County District Judge Ralph Strother a report Waco officials had received from a Baylor University student on cliff hazards.

The city replied that Strother lacked jurisdiction. He agreed and dismissed the suit.

The 10th District reversed him, ruling that recreational law permits a claim of gross negligence over a natural condition if the condition is not open and obvious.

The Supreme Court disagreed, finding Kirwan did not prove conscious indifference under recreational law.

Green wrote that "a barrier and a sign warning a recreational user to stay away from a dangerous natural condition generally will be sufficient to avoid a showing of conscious indifference to the rights, safety and welfare of others under the statute."

He wrote, "It is generally unreasonable and unduly burdensome to ask a landowner to seek out every naturally occurring condition that might be dangerous and then warn of the condition or make it safe."

Green asked if beach owners must post signs warning of dangerous surf, or if Big Bend Ranch State Park must post signs warning of rattlesnakes and mountain lions.

"The likelihood of harm at the cliff's edge was significant, which is why the city had posted a sign warning visitors to stay away from the cliff's edge," he wrote

He wrote that previous injuries did not involve a large piece of earth falling.

Charles Olson and Alfred Mackenzie represented the city of Waco. Jeffery Mundy and Michael Singley represented Kirwan.

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