San Marcos Mercury | Local News from San Marcos and Hays County, Texas

November 10th, 2010
University wins appeal in wrongful death suit

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The Saltgrass Steakhouse was Joe’s Crab Shack when Texas State student Jason Bonnin jumped off the roof after work and drowned in 2005. Photo by Sean Batura.

SEAN BATURA
News Reporter

The Third Court of Appeals in Austin last week overturned a trial court ruling and dismissed Sam and Betty Bonnin’s wrongful death suit against Texas State regarding the passing of their son, Jason Bonnin.

Jason Bonnin, a 22-year-old Texas State student, drowned in 2005 after a powerful current pulled him into the underwater caverns beneath what is now Saltgrass Steakhouse. Bonnin and a co-worker had leaped from the building’s roof after working their shifts at the restaurant, which was then Joe’s Crab Shack. The restaurant and surrounding land is owned by Texas State.

Three months after Bonnin’s drowning — and after city fire and rescue personnel were called to the scene for six more water rescues — the university erected signs carrying warnings about the dangerous currents and undertows. The area remains open for swimming, though diving is prohibited.

The Bonnins alleged that the university created an unreasonably dangerous condition by failing to block access to the underwater caverns or warn others of their existence, and by making faulty design decisions in repairing Spring Lake Dam. The dam’s spillway is adjacent to the restaurant and contributes to the strong current.

The Bonnins claimed the university allowed or created a defective condition leading to their son’s drowning because school officials knew, or should have known, that the property would be used for recreational purposes.

The university claimed immunity from the Bonnins’ lawsuit. The state and its agencies are generally immune from suit without a waiver of sovereign immunity, or permission to sue. The university claimed the Bonnins had not sufficiently established a waiver of sovereign immunity under the Texas Civil Practice and Remedies Code (TCPRC). The university also argued that the Bonnins failed to plead or prove a claim for negligent use of tangible personal property.

The appeals court ruled that the Bonnins failed to establish a waiver of sovereign immunity under the Texas Tort Claims Act and the recreational use provision of the TCPRC.

The court ruled that the Bonnins did not establish a sovereign immunity waiver under the Texas Tort Claims Act because they did not allege that the university failed to maintain the river after the repairs to Spring Lake Dam, but instead attributed the injury to the initial design decisions regarding the repairs.

“Given the (Texas) supreme court’s holding that landowners do not have a general duty to warn or protect recreational users against naturally occurring conditions, the Bonnins cannot plead a valid gross negligence claim under the recreational use statute,” states the Third Court of Appeals Memorandum Opinion in Texas State University–San Marcos v. Sam and Betty Bonnin. “In light of the foregoing, we hold that the Bonnins’ premises defect claim based on the turbulent undertow, like their claims based on the design of the waterway, is barred by sovereign immunity.”

Third Court of Appeals Justices Jan Patterson and Diane M. Henson issued last week’s ruling, which reversed a trial court’s order denying the university’s claim that the Bonnins had failed to establish a waiver of sovereign immunity. The trial court was the 207th District Court presided over by Judge Jack Robison.

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