In a decision reminiscent of the Dallas Court of Appeals’ pronouncement that a tornado is not a windstorm, the Texas Supreme Court reversed a San Antonio Court of Appeals decision that (mind-bogglingly) held that a jogger in a 5K run in downtown San Antonio was not “recreating” within the meaning of the Recreational Use Statute.
The City of San Antonio v. Nadine Realme (No. 24-0864; March 13, 2026) arose from injuries suffered by Plaintiff when she tripped over a metal object while running in 5K race in downtown San Antonio. She sued the City alleging negligence and gross negligence. The City filed a plea to the jurisdiction under the Tort Claims Act, which the trial court denied. In its initial appeal to the court of appeals, the court affirmed the trial court order and declined to address the City’s claim for immunity based on the Recreational Use Statute (RUS). On remand, the City filed another plea to the jurisdiction based on the RUS. Again, the trial court denied the motion. And again, the City appealed.
In an opinion by Justice Watkins, the court of appeals affirmed. At issue was the application of the RUS (§ 75.002(f), CPRC), which provides that “if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater duty of care than is owed to a trespasser on the premises.” If the RUS applies, consequently, a plaintiff has to raise a fact issue as to the unit’s gross negligence, malicious intent, or bad faith in order to get over the jurisdictional hurdle. The question before the court was whether running a 5K constituted “recreation” under the statute.
As defined by § 75.001(3), CPRC, “recreation” includes hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, cave exploration, waterskiing and water sports, bicycling, disc golf, dog-walking, radio control flying, and rock climbing. The court found no evidence that Plaintiff’s “running, jogging, or walking during the 5K race was directly associated with any of the statutorily identified forms of recreation.” (It should be pointed out that the statute states that “recreation” means an activity “such as” the above list. It is not expressly limited to the listed items.) Rejecting the City’s argument that running, jogging, or walking fell within § 75.003(3)(L), a catchall provision covering “any other activity associated with enjoying nature or the outdoors,” the court found “no authority expressly holding that all outdoor running, jogging, and walking is included in the statutory definition of “recreation.” The court, however, acknowledged that running, jogging, and walking are commonly defined as “recreation.”
In an opinion by Justice Hawkins, the court reversed. Beginning with the 19th-century origins of the Thanksgiving turkey trot in Buffalo, New York, the court observed that recreational use statutes stemmed from “[c]oncern[s] about a lack of available venues to accommodate Americans’ growing appetite for recreation.” In 1965 the Council of State Governments drafted a model statute limiting liability for landowners who made their land available for recreational purposes. Texas adopted a version of the statute that same year, and the Legislature expanded it in 1981 “to offer protection when a landowner ‘gives permission to another to enter the premises for recreational purposes.’” In 1985 the statute was codified in the CPRC and has been variously amended to add to the non-exhaustive list of recreational activities.
SCOTX interpreted the statutory term “recreation” for the first time in 2002, when it held that “swinging” on a swing in a city park met the definition. In 2015 a plurality of the court thought that a spectator at a high-school soccer game inside a stadium was not “recreating” within the meaning of the statute, followed in the same year by a holding that a spectator injured at a softball game was not engaged in recreation at the time of the injury. But in University of Texas v. Garner, 595 S.W.3d 645 (Tex. 2019), the court ruled that the RUS applied “when the plaintiff entered a university owned apartment complex ‘and engage[d] in recreation on those premises.’” The court added that whether an activity is recreational involves an objective analysis, not the plaintiff’s subjective intent. Confusing? Justice Hawkins thought so, noting that intermediate appellate courts “have struggled not only to decide what activities count, but also how to analyze the question.”
Turning the text of the statute, the court observed that while it doesn’t define “recreation,” it does enumerate “at least two dozen activities” that “count.” This list is not exclusive, and the statute further includes a “catch-all” provision that captures “any other activity associated with enjoying nature or the outdoors.” § 75.001(3)(L), CRPC. Since the term “recreation” has no technical or statutorily specific meaning, the court looked to common dictionary definitions, which all similarly focus on “‘diversion’ or ‘play’ performed for the sale of its own enjoyment or amusement. A holistic approach grounded in ordinary meaning therefore compels the conclusion that the statute captures other such diversions and forms of play, undertaken for refreshment from the toils of life.” Based on common usage of the term, consequently, “[a] community fun run is plainly a recreational activity … the whole point is to do something fun in the community on Thanksgiving.” Plaintiff’s ordinary negligence claim thus failed.
The court of appeals went wrong when it strayed into “an extended analysis of abstract questions about whether fun runs are ‘sufficiently connected to enjoyment of the natural world’” (as if the definition of “natural world” is at all obvious). In other words, the court of appeals failed to adopt a “holistic” approach to the statute as the Legislature wrote it. The court further rejected the court of appeals’ reasoning that just because the Legislature enumerated a bunch of specific activities that come under the definition of “recreation,” fitting anything else into the statute rendered the list “surplusage.” A statute may be redundant without containing surplusage, said the court. And the fact that Plaintiff had to pay an entry fee was neither here nor there, since the statute doesn’t say anything about it. Because the court of appeals declined to consider Plaintiff’s gross negligence claim, the court remanded the case so that it could do so.
