This is a suit against a city by the family of two girls and their father who were killed by rip currents near the Texas City Dike while swimming. The plaintiffs argue that the City should have posted more warnings or even closed the area to swimming because of the risk. The City lost its plea to the jurisdiction, but the court of appeals ruled in its favor, dismissing the claims. The petition argues that the claim should be allowed to move forward because, in part, warning signs that had previously been present signaled awareness of the problem — or at least would permit a fact-finder to draw such an inference.

The beach in question was damaged extensively by Hurricane Ike. When it reopened, after two years of repairs, the City did not replace all the warning signs that had previously been present. Those hsigns warned of the risks of swimming and diving.

The Texas Supreme Court granted the petition but ultimately affirmed the court of appeals, concluding that the evidence fell short of what would be required to show gross negligence: "[T]here is no evidence that the municipality had knowledge of concealed conditions at the beach creating an extreme risk of harm."

The Supreme Court noted that the case involved a recreational use of property and, thus, any claim against the landowner (the City) would have to prove gross negligence as defined in the statute, which requires both that the action involved objectively "involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others" and that the defendant "has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others." Tex. Civ. Prac. & Rem. Code §41.001(11).

The opinion focused primarily on the signage and, particularly, whether it represented prior knowledge of the particular risks involved. The Court held that it would be improper for a fact-finder to draw such an inference. The opinion invoked the equal-inference rule, concluding that generic signs about the risks of swimming were "equally consistent with mere knowledge of risks inherently associated with open-water swimming" and thus did not show "subjective awareness of and conscious indifference" to the specific types of marine hazards involved in this accident. As such, the Court concluded, they are not evidnece that the City was aware of risks beyond those that would already be known to a recreational swimmer.

Finding no evidence of gross negligence, the Court affirmed the court of appeals's dismissal.