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M.C. v. Pantego Camp Thurman, Inc.

Court of Appeals of Texas, Second District, Fort Worth

February 22, 2018

M.C., INDIVIDUALLY AND AS NEXT FRIEND OF J.C., A MINOR; E.P., INDIVIDUALLY AND AS NEXT FRIEND OF A.P., A MINOR; AND EACH ON BEHALF OF THE ESTATE OF J.G., DECEDENT APPELLANTS
v.
PANTEGO CAMP THURMAN, INC. APPELLEE

          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 017-269875-13

          PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

          OPINION

          BONNIE SUDDERTH CHIEF JUSTICE

         In the early morning hours following Christmas Day 2011, J.G.-who had been smoking marijuana and drinking heavily-walked with a female companion, Faith Yeh, through his neighbor's property, climbed over a four-foot-high wooden fence on which four "No Trespassing" signs were posted, and entered Camp Thurman. The pair proceeded to climb a cargo net to a triangular platform located more than 20 feet above ground, where they began to kiss. After rebuking further advances, Yeh turned and started to retreat back down from the platform. At that point, she heard J.G.'s body hit the ground below.

         Two years later, M.C. and E.P. (Appellants)-the mothers of J.G.'s two children-filed a wrongful death action against Appellee Pantego Camp Thurman, Inc. (Pantego)[1] on behalf of themselves and J.G.'s two young sons, alleging that Pantego's negligence caused J.G. to fall to his death. After the jury rendered a verdict in Pantego's favor, the trial court signed a take-nothing judgment. Appellants now bring this appeal, arguing in three issues that the trial court erred. We affirm.

         Background

         Camp Thurman is located on a 12.3-acre site in Pantego. In the summer months, Camp Thurman serves as a children's camp. During the remainder of the year, the site is used for adult team-building workshops.

         The platform from which J.G. fell-the "Wild Woozy"-was one element of a challenge course located on the property and consisted of two 22- to 30-foot tall wooden platforms connected to each other by two cables.[2] One platform was triangular in shape, the other was rectangular. The triangular platform was accessible in two ways-by a cargo net reaching from the ground to one side of the platform, and by a spiral staircase located on another side of the platform. The spiral staircase was encased by a six-to-eight-foot-high wrought-iron fence with a door that was locked when the element was not in use. Two signs on the element warned, "Coaster's Wild Woozy, extreme danger, " and "WARNING! Equipment and area are only to be used with proper supervision!"

         When Yeh heard J.G.'s body hit the ground, she raced down the spiral staircase, only to realize when she reached the bottom that the door to the staircase was locked, forcing her to go back up to the platform and climb down the cargo net. By the time she reached J.G., his body was not moving. Yeh called 911 and paramedics pronounced J.G. dead at the scene.

         At trial, evidence was presented of J.G.'s struggles with alcoholism, drug use, and depression. His girlfriend at the time of his death, Ashleigh Miller, described him as a heavy drinker who drank daily "until he [was] drunk." She also testified that J.G. smoked marijuana at least three times a day.[3] According to Miller, J.G. sometimes spoke of killing himself and of his desire to "disappear from the world." Although he had two young sons, he rarely saw them and, at the time of his death, J.G. owed back child support to both Appellants.

         One of the Appellants testified that the platform of the Wild Woozy was J.G.'s "secret spot, " a place where he went when he was feeling depressed and needed to think. J.G.'s roommate and girlfriend also confirmed that J.G. had visited the Wild Woozy multiple times prior to the night he died.

         The jury found that J.G. had trespassed onto Camp Thurman and that his death was not caused by Pantego's gross negligence.[4]

         Discussion

         Appellants bring three issues in this appeal. The first two issues relate to the trial court's failure to take judicial notice of and to admit into evidence certain provisions of the Texas Administrative Code relating to safety standards for youth camps. In their third issue, Appellants argue that the jury's verdict was against the great weight and preponderance of the evidence.

         I. Administrative code provisions

         During the trial, Appellants' counsel attempted to introduce exhibit 18, a 34-page printout of sections 265.11 through 265.29 of the Texas Administrative Code, portions of which relate to safety standards for youth camps. See Tex. Admin. Code Ann. §§ 265.11-.29. Pantego's counsel objected that Appellants had failed to reveal that they planned to introduce evidence of those sections of the administrative code in response to discovery.[5] The trial court sustained the objection and did not admit the code provisions into evidence. Later, Appellants' counsel again offered exhibit 18, arguing that Pantego would not be unfairly surprised by its admission because the Appellants ...


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