In City of Waco v. Kirwan, 298 S.W.3d 618, 620 (Tex. 2009), the Texas Supreme Court clarified the duty owed by landowners to recreational users under the recreational use statute, holding that a landowner does not generally owe a duty "to protect or warn against the dangers of natural conditions on the land." 298 S.W.3d at 627.
As a result, the court held that the City of Waco's sovereign immunity was not waived in connection with a premises liability claim based solely on the collapse of a naturally occurring cliff. Id. at 620.
The Texas supreme court drew a distinction between premises liability claims based solely on naturally occurring conditions and those based on artificial or man-made conditions, characterizing State v. Shumake, 199 S.W.3d 279 (Tex. 2006) as the latter due to the allegedly dangerous condition of the man-made culverts. Kirwan, 298 S.W.3d at 622.
Specifically, the court stated:
"We agree that, while Shumake may have provided some guidance, it did not directly answer the question presented here. The condition in Shumake was not a naturally occurring one. See 119 S.W.3d at 281 (addressing liability for danger from man-made culvert). Here, however, the facts present a condition alleged to be both natural and not open and obvious. Id.
The court emphasized that the condition at issue was not open and obvious because it had previously stated in Shumake that landowners have no duty to warn recreational users against obvious defects or conditions. See State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006); see also id. ("But a landowner can be liable for gross negligence in creating a condition that a recreational user would not reasonably expect to encounter on the property in the course of the permitted use.").