In a decision reminiscent of the Dallas Court of Appeals’ pronouncement that a tornado is not a windstorm, the Texas Supreme Court has granted the City of San Antonio’s petition for review of a San Antonio Court of Appeals decision that (mind-bogglingly) held that a jogger in a 5K 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; granted June 13, 2025) 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 City 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.”
Just between us, we think this is one of the most tortured and backwards-reasoned opinions we have seen in a long time. Although the City cited numerous cases appearing to include running and walking within the ambit of the statute, the court took great pains to distinguish them all. Also along these lines, the court seemed perfectly happy to consider Plaintiff’s “day-to-day runs through downtown San Antonio” as recreational under the statute, but “not her participation in the 5K race that led to her injury.” Perhaps it would have been better for the court to skip the circumlocution and simply stick with the position that because the statute doesn’t specifically list those activities, it shouldn’t go beyond it (never mind that the statute expressly states that the list is not exclusive).
SCOTX has not yet scheduled oral argument.
