This is a suit instituted by Oscar Murphy and wife, as next friends and natural
LNVA is a governmental entity that operates a network of canals approximately 175 to 200 miles in length. The summary judgment record reveals that Wendell sustained serious bodily injuries when he dived into a LNVA canal and struck his head on a hump or mound of clay on the bottom of the canal. The waters of the canal are consistently muddy and the humps of clay on the bottom are not visible. Wendell was fourteen years old at the time of the accident and is at least of average intelligence for his age.
The testimony of Wendell on deposition is crucial. He stated that he had been swimming in the portion of the canal where the accident occurred on previous occasions and knew the area well. In particular, Wendell testified that he knew there were humps of clay on the bottom of the canal and that he knew the danger they presented.
All parties, together with the courts below, have treated Wendell as enjoying the status of a licensee and as not having the status of a trespasser when swimming and diving in the canal at the time the accident occurred. We will assume without deciding that such was his status.
In State v. Tennison, 509 S.W.2d 560 (Tex.1974), we defined the nature of the duty owed to a licensee by a unit of government:
It is well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.1972, writ ref. n. r. e.); Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.1967, writ ref. n. r. e.); Buchholz v. Steitz, 463 S.W.2d 451 (Tex. Civ.App.1971, writ ref. n. r. e.). An exception to the general rule is that when
LNVA, as the movant for summary judgment had the burden of establishing as a matter of law that there were no genuine issues of fact as to one or more of the essential elements of the asserted cause of action, i. e., that no fact issue stands in the way of judgment in its favor. Betty L. Cook, et al v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751 (Tex.1976); Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972); Torres v. Western Casualty & Surety Co., 457 S.W.2d 50 (Tex. 1970); Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).
The Court of Civil Appeals recognized that Wendell's deposition testimony established that he knew "there were humps and lumps on the bottom of the canal between a foot and a foot and a half high" in the area of his dive; but, said the Court, "the deposition also shows that he did not know the humps or lumps were at the exact spot where he dived in." (italics added). So the Court of Civil Appeals concluded that it was not shown "as a matter of law that Wendell knew about the dangerous condition which resulted in his injury." 529 S.W.2d at 819. In their reply brief "Respondents submit that each hump or lump of clay in itself constituted a dangerous condition"; that "there is a fact question present as to whether or not Wendell . . did realize that there were humps of clay in the location where he dove"; that "it is unclear whether Wendell . . . knew of various humps of clay away from the bank, or if the only humps of clay he was aware of were the humps that he referred to as ridges that ran out from the bank."
As before noted, the rule stated in State v. Tennison, supra, is that a licensor is under the duty of not injuring a licensee by willful, wanton or gross negligence; but that an exception to this rule is that when the licensor does have knowledge
The reliance of Oscar Murphy, et al, Respondents, upon Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.1954, writ ref'd n. r. e.) is misplaced. The injured party there was precluded from recovering because he
The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.
SAM D. JOHNSON, J., writes concurring opinion in which REAVLEY, J., joins.
SAM D. JOHNSON, Justice (concurring).
This writer would adopt the rule of liability for the possessor of land to a licensee recited in Section 342 of the Restatement (Second) of Torts. The duty of an owner-occupier of land should be extended accordingly. Concurring Opinion, State v. Tennison, 509 S.W.2d 560, 563 (Tex.1974).
Even under the Restatement rule, however, this writer would reach the result of the majority.
REAVLEY, J., joins in this concurring opinion.