*1 346 NLRB, 666, Corp. Maint. v. 452 U.S.
Nat.
Conclusion
(1981);
674,
2573,
101
does
part practice.” of an unfair labor J.I. Case N.L.R.B., 332, 339, v.
Co. 321 U.S. S.Ct. (1944).
576, L.Ed. (1) case, In this PPA addresses REGIONAL TARRANT WATER any arising for forum resolution of claims Appellant DISTRICT (2) incident; July pro- out of the v. payments for to Lawal vides additional expressly leaving wages requir- while his Richard JOHNSON and Sharkara John- (3) unchanged; a union contribution son, Individually Rep- and as Personal any not provides Lawal will suffer Brandy of the Estate resentatives employment adverse actions he decides Appellees Johnson (4) change not participate; not does NO. 02-16-00043-CV parties any obligations duties or reasons, the CBA. For under these Texas, Appeals Court of addressing not an agreement PPA is terms Fort Worth. employment, and conditions Lawal’s 30, 2016 DELIVERED: December require union therefore CBA did representation negotiating of Lawal in
PPA.17 Marine, Inc., employed plaintiff Civ. made after defendant had
17. See
v. Weeks
A.
Nunez
06-3777,
(E.D.
WL
injury—
at *3
when the reason for arbitration—the
13, 2007)
that,
(holding
Marine, Inc.,
existed);
Feb.
Act
La.
case,
Jones
already
In re Weeks
agreement
post-injury
was
arbitration
(holding post-injury
Act does brought by appel- from suit the claims lees Richard and Sharkara Johnson. We and render in and affirm reverse part.
Background 16, 2013, January nine- On the Johnsons’ teen-year-old daughter Brandy Johnson tragically Trinity in the drowned River apparently attempting after to walk across (Dam 2) Trinity Park way job to a Fort on her interview. Worth in the That dam has middle through rapidly which the river flows. Af- death, ter the Johnsons sued TRWD, “owns, operates[,] levees, systems sump ar- maintains the eas, structures, im- gate channel flood *5 bottoms, provements, low water weirs, dams, walkways[,j kayak and chutes Fork” on the Clear of the River Trinity Welch, Geary E. & M. Vin- Joel James Brandy the area drowned. In their where Jenevein, Geary, cent Serafino Waddell petition, third amended the Johnsons P.C., Dallas, TX, Appellant. for brought alleging claims under the TTCA following conditions constituted (Jim) Zadeh, Jamshyd M. Law Offices defect, defect, premises special a a either Smith, Zadeh, P.C., C.N. Jim Jason Law “Trinity Park or both: Dam No. Worth, TX, Smith, of Jason Fort Offices kayak Trinity on Park Dam No. Appellees. for levees, handicapped rock stairs LIVINGSTON, C.J.; walkway leading Trinity Park accessible PANEL: SUDDERTH, Trinity Fork of the JJ. the Clear DAUPHINOT and River, bottom of the Clear Fork the river River[,] Trinity large scour and the OPINION Trinity located at the base of Park hole LIVINGSTON, TERRIE CHIEF Premises). (collectively 2” Dam No. JUSTICE (1) They alleged is also TRWD liable negligence an interlocutory appeal This an from the under the TTCA for because is plea jurisdiction employee tangible on used or misused a based had denial See Tex. immunity. personal property Brandy or furnished alleged governmental Prac. & Rem. Code Ann. with inadequate tangible per- or defective Civ. 2016). (2) 51.014(a)(8) (West § In a Supp. property sin- TRWD was either sonal issue, appellant Regional grossly negligent Tarrant or acted with malicious gle Wa- (TRWD) Finally, tri- faith. the Johnsons ter District contends intent bad by denying plea brought wrongful its death and survival al court erred to the Tort causes of action. jurisdiction because the Texas Claims plea jurisdiction a undisputed TRWD filed jurisdic- Whether evidence immunity alleging had not been tional facts establishes a trial juris- court’s for any waived under the TTCA Id.; Jenkins, question diction a is law. (1) Johnsons’ claims because the Johnsons at 857. S.W.3d identify any personal prop- did not item plea If a jurisdiction to the chal erty allegedly by misused an em- used lenges jurisdictional facts, the existence of (2) ployee, law, as a matter of the Premis- we consider relevant evidence submitted defect, (3) special es are not if even parties necessary when to resolve alleged the Johnsons premises defect raised, jurisdictional issues as the trial waived, immunity which its is the TTCA Miranda, required court is to do. immunity reinstates that because its deci- 227; Jenkins, S.W.3d at at S.W.3d 857. regarding sions of the Premises If the evidence question creates fact features, safety related such as issue, regarding jurisdictional then the warning signs, discretionary. are Alterna- trial grant court cannot plea to the (3) tively, argued that if above does jurisdiction, and the fact issue will be re not apply, the Johnsons still cannot main- Miranda, solved the factfinder. premises they tain a claim defect because 227-28; Jenkins, S.W.3d at at (a) S.W.3d identify premises failed to defect that 857. if the But relevant evidence is undis (b) harm, an created unreasonable risk of puted question or fails to raise a fact defect, if they alleged even an actionable issue, jurisdictional the trial court is there no evidence it caused plea rules on the jurisdiction as a death, (c) chute and run- water Miranda, matter law. at 133 S.W.3d ning through it open are an and obvious 228; Jenkins, (d) at This 307 S.W.3d danger, duty TRWD had generally standard mirrors that of a tradi Brandy, as a matter of warn law did so Miranda, summary judgment. tional adequately. plea The trial court denied the 228; Jenkins, at jurisdiction. *6 857; see Tex. R. Civ. P. 166a(c). of Review Standard Immunity of ruling review the trial court’s Under TTCA
We Waiver plea jurisdiction on a a de under Generally, governmental a unit Dep’t Tex. novo standard of review. of enjoys immunity from for lawsuits dam Miranda, Parks & v. 133 S.W.3d Wildlife Reed, City v. See Dallas ages. 258 of 217, (Tex. 2004); City Falls 226 Wichita of (Tex. 2008); City Hal 620, S.W.3d 622 of Jenkins, v. 854, (Tex. 307 857 S.W.3d Aurell, City tom v. 839, 380 S.W.3d 844 denied). 2010, App.—Fort pet. Worth The (Tex. 2012, App.-Fort no An pet.). Worth plaintiff of alleging has the burden facts governmental of immunity assertion to suit affirmatively trial establish the court’s a challenge jurisdic is of the trial court’s Tex. Ass’n of subject jurisdiction. matter Cty. Hasp. tion. Harris v. Tomball Dist. Bd., Bus. v. Tex. Air Control 852 S.W.2d (Tex. Reg’l Hosp., 283 838, 842 S.W.3d 440, (Tex. 1993); LP Cooper, Eden v. 446 Holland, 639, v. 2009); State 221 S.W.3d City Arlington, 02-11-00439-CV, of (Tex. 2007). 642 (Tex. 2428481, App.-Fort 2012 at WL *3 28, (mem. 2012, legislature provided a pet.) op.). Worth June no The has immunity in the TTCA. pleadings liberally We construe the in fa narrow waiver Reed, 622; City, Haltom plaintiff plead vor of the look to 258 at 380 S.W.3d Miranda, A er’s intent. 133 at 844. cause of action must S.W.3d at S.W.3d 352 discretionary if forth in “An act is requirements set
initially meet with- judgment of the TTCA to come requires exercising section 101.021 [if] immunity. governmental in its waiver performing not mandate the act law does Ann. Rem. Tex. Civ. Prac. & Code precision nothing such is left to with (West 2011); Reg’l § Health 101.021 Wise judgment.” or State v. Rodri discretion (Tex. 799, Brittain, 805 Sys. v. 268 S.W.3d (Tex. 83, 1999), over guez, 985 S.W.2d 85 2008, pet.). no Under App.-Fort Worth grounds by Cty. Denton v. ruled on other 101.021, lia- governmental units are section (Tex. 329, Beynon, 331 n.11 283 S.W.3d so injury “personal for and death ble 2009). supreme court has The articulated tangible or by a use caused condition determining for conduct two tests whether if govern- property or real personal entity a discre by governmental a involves would, per- private a mental unit were tionary function: the first test distin son, according to to the claimant be liable decisions, policy-level for guishes between Code Tex. Civ. Rem. Texas law.” Prac. <& exists, immunity operational- which 101.021(2). for “Liability premises §Ann. decisions, for there is no level which immu 101.021(2) section implied is under defects distinguishes the second between nity; premises arises from defect because works, public for which there is existing property.” on real Hal- condition maintenance, immunity, their City, (quoting tom at Perez S.W.3d immunity. Stephen there is no F. which 906, (Tex. Dallas, City v. S.W.3d Flynn, Austin Univ. State v. pet.)). no App.-Dallas 2007). (Tex. or Operational main plaintiff pleaded if has But even tenance level decisions are those involved immunity claims for is waived under policy, consisting out min carrying 101.021, the TTCA nevertheless section to or require isterial acts that obedience from exemptions specific contains ders; contrast, policy are decisions at v. Univ. San Antonio waiver. Tex. planning con those taken at level that (Tex. Trevino, 58, 61 App.-San of or mak the execution the actual stitute pet.). no 101.056 of Antonio Section policy Dep’t decisions. Tex. those exempts 101.021’s the TTCA from section No, Hathom, 03-11-00011-CV, Transp. v. immunity “governmental unit’s waiver (Tex. App. WL *6-7 act[,] perform or ... not to an decision (mem. 19, 2012, op.). July pet.) Austin perform failure to make a decision ‘[d]esign public because “the And act[,] an nonperformance ance work, roadway, discretionary as a is a such performance nonper law leaves *7 decisions, involving many policy function the act to discretion of the formance of entity responsible governmental ... governmental Civ. Prac. & unit.” Tex. may not be sued for decisions.’”1 such 101.056(2)(West 2011); § Rem. Code Ann. Perches, Transp. v. Dep’t Tex. 388 Gelder, 304 Cty. Brazoria v. Van S.W.3d 2012) 652, (Tex. (quoting 655 Rod S.W.3d 447, (Tex. App.-Houston [14th Dist.] 453 85); Cty., riguez, 985 Brazoria S.W.2d at 2009, denied). governmen pet. Whether Additionally, at 454. a court activity discretionary pur tal for TTCA is second-guess governmental not should poses question is of law. State v. San (Tex. 1999). 249, or Miguel, type unit’s decision about marker S.W.3d 03-06-00606-CV, Although many Amezquita, WL discretionary design No. 4, (Tex, App.-Austin roadway design, they *2 June cases are not relate to (mem. pet.) op.). roadway design. no See Tex.v. limited to Univ. of safety that appropriate. device is the most not to Brandy visible large “as Miguel, San at 251. originally negligently repaired when in 2002.” petition states, The depth “The Because contention in TRWD’s first the river at the base ... downstream trial court is and here that even feet,” No. 2 supposed Dam is to be three immunity from the claims is ini- Johnsons’ alleges Brandy that if had fallen into 101.021, tially waived under section would, at that depth, she have would still be immune because section been able up stand and would not have applicability, 101.056’s we will first review drowned. alleged The Johnsons also that whether the solely Johnsons’ claims relate death, after ap- TRWD had to discretionary functions hole,- proved plans to “fix the scour seal immunity not would be waived being placed the material in the scour under TTCA. hole[,] depth and return the river back to . original depth.” three foot Specific Allegations in the Johnsons’ Third Amended Petition The Johnsons further pre- detailed three alleged The Johnsons plead- their live drownings vious and two drownings near that the chute cut into the .mid- site, at the same involving all people falling ,2, dle of Dam No. like the chutes two of off They the dam. also noted that allega- the other dams the same area of the tions had been made in some of those River, Trinity for water to flow “allow[s] cases although that signs dam had 2,700 through up of at at rates least it, signs those not warn of dangers. per They alleged feet cubic second.” also alleged The that Johnsons additional that is exposed the chute “made of an warning signs better were added after mix, aggregate pea gravel concrete is ap- Additionally, these incidents. the Johnsons across[,] proximately 10 feet and is alleged cyclist that a successfully who smooth, slippery, especially slick and with son, Dania saved Martinez’s but who could running through They water the chute.” Martinez, not news, rescue told CBS 11 “It alleged further that the in Dam No. ,.. completely looks harmless but II rapid.” “creates a Class + Whitewater little waterfall and then there’s a little petition The also is a pulled claimed there sinkhole. You’re down then “huge scour hole” at the Dam you’re being pushed base of way this and down. 2 that him, “creates a channel I got down, bottom was When I to reach had to nine up deeper expected feet than starting go he was under and had been designed” and bobbing up the scour According hole and down.” partially completely “was cyclist, but she swimming filled had been “almost life,” with loose materials construction ma- her entire but she found it difficult terials and the keep materials were her sealed head above water. The Johnsons in place.” point, At alleged some loose mate- further that in “[t]he March hole, rials were placing warning washed out the scour considered new signs on likely in during flooding 2 in response some three drown- *8 ‘high velocity’ ings flow events ... and at [and were] least one the near drown- pushed far ings. downstream and even designs created a two were While considered— small artificial island from” of which through downstream one showed an arrow Johnsons, 2. According No. Strong water and said “Beware Currents” Brandy when fell from top drowned she the and other of which of a showed .the kayak hole, chute into the scour person’s waving which was head and a over wa- arm when there was water [Dam 2] YOU across stating “STRONG CURRENT
ter flowing through kayak BE FROM chute.” SWEPT COULD AWAY IF AND IN COULD DROWN SHORE that the defec- The Johnsons contended ap- final DON’T GO OUT”—the DOUBT by of Dam No. was caused tive condition person of a proved design top showed the “altering the natural the Clear flow water, standing in front person in with a by diverting the Trinity Fork of River ' stating PLEASE “SAFETY FIRST man of artificial through a series According YOUR WATCH CHILDREN.” chutes,” creating “a kayak made dams and Johnsons, to yet powerful decep- and looking smooth sign by a designed This was created and ka- tively dangerous through current person. safety public relations No stud- large scour yak “re-creat[ing] chute” ies contact was made with occurred. No hole[,] large “If scour which was hole”: designer walkways to see by the artificial diversion of created they expert could be made safer. No was water, proper- natural flow of the had been artificially making consulted on cre- maintained, ... ly repaired Brandy or Nothing ated condition occurred safer. in the up able to stand would have been except placement poorly of one de- Trinity Fork of the River.” Further- Clear signed sign in the word caution more, neg- the Johnsons claim that TRWD intentionally had been removed. negligent- ligently implemented policy and general, alleged In that the Johnsons “filling ly by the Premises maintained “artificially created created condition hole,” filling repairing large in or scour by” Dam No. “the scour hole and the both, improperly, by negligent- it in chute,” ... slippery kayak walk- ly constructing Dam No. and the sur- river, ways, and channel bottoms were allege rounding Finally, area. the Johnsons dangerous conditions and TRWD “did negligent failing that TRWD was adequate safety warnings not have warnings explicit more manufacture the signs” According at the dam. to the John- signs proposed and considered TRWD sons, actually TRWD was aware of these death, before conditions, dangerous including that prohibit ac- failing to “secure the area supposed scour hole was be three conditions.” cess the unsafe in depth actually feet eleven to twelve Moreover, they allege in depth. feet Complaints The Johnsons’ About actually aware “of the numer- TRWD Premises Than Parts of the Other drownings” at Dam drownings ous near Resulting The “Boil Scour Hole and and that Dam No. “had more Only Discretion- Effect” Relate drownings drownings or near than ary Design Decisions2 twenty-three twenty-five the other dams Relevant Facts they con- Finally, oversees.” TRWD following The evidence about was aware “that it was tend during plea developed Premises was dangerous general public for the to walk reply was entitled to a dismissal the Johnsons’ 2. TRWD contends brief that claims, appeal pre- their pleaded Johnsons "narrowed” claims on we will consider TRWD’s arguments only responding with about the appellate arguments to the John- served effect, hole, resulting scour undertow and boil light appropriate petition in sons' entire chute; through and the current Miranda, 133 of review. See standard however, applicable because the standard of at 226-27. requires review us to consider whether TRWD *9 jurisdiction pleading process. Army The Corps Engineers of that the chute Army Corps Engineers United States of is would not impact overall flow of the jointly responsible regu- with for TRWD river so comport as to Corps’ plan with the lating maintaining along flood control for prevention. flood Trinity River in Fort In Worth. kayak The in chute the middle of Dam 1960s, Corps part channelized this 2No. is a opening through ten foot strengthened the river and existing levees center of consists “running the dam and assist flood Part of control. the chan- running water a slippery over surface.” establishing nelization included the of a The kayak was intentionally chute de- grade for the river bottom to facilitate signed to so slippery be facilitate the river flow. As a result the river channel- kayaks movement small boats project, ization several con- dams were through pool it from one the river to the structed Dam TRWD. the dam next. of exposed pea The bottom is made here, at issue fishing pier included a on the gravel that was chosen be “smooth side; 1970s, west designed TRWD slick.” designer TRWD on the relied leading and installed rock stairs down to chute to make sure would be safe for 1980s, the river on Dam In No. 2. However, kayakers. Verreault admitted a handicapped TRWD installed accessible not take TRWD did measures to en- ramp adjacent Trinity sidewalk from Park safety sure the of people walking across down the dam. kayak it was chute because not intend- According to walkway. and Levee ed as a Verreault did believe Safety Engineer, Verreault, unsafe, Louis the dam but agree he original dams in this location were vertical walking dangerous. on it could be time, face types dams. Over those dams Verreault estimated that the flow of the will move sediment from the river channel river day Brandy’s on the death was two bottom “scouring” downstream a effect to five per cubic feet second. The hundred due to the force of the flowing water over velocity running through of the water the dam and straight then down toward chute, however, would have been faster the river bottom. than the overall flow because In 2002 redesigned all TRWD be water would concentrated dams, including reconstructed several through opening. ten-foot Verreault Dam No. for purposes. recreational moving The across the water estimated design for Dam kayak day included the chute on the death which, the middle of it for use recre- was six deep, speed inches kayakers ational and inner tubers. Con- was could to fall. moving, cause someone began struction in 2003 day, and consisted of On that flowing through the water the removal of the built in dams the 1960s chute did not reach across its entire ten rebuilding According width; and the foot according new dams. testi- Verreault’s Verreault, dam, mony, appears very new Dam No. “it that there was low “designed chute, to retain to con- through water and flow because the center it’s trol not designed erosion and is as a walk- all within contained the center chute and way.” side, my doesn’t cover it from so side assumption is that it’s at a lower flow.” job during
Verreault’s redesign the dam installed, was to integrity. ensure its structural As When Dam No. 2 was process warnings regarding did not install the dan- chute, chute, TRWD had to ger speed demonstrate to the or flow in the the water *10 inspects year, visually rock Each the signs ap-
but it embed the TRWD 2, kayak dams, of proaching including Corps the chute on each side a Dam No. with depiction figure a of the chute walk- with engineer they damaged to see if have been of through a line it. At time with the any repairs necessary. part or if As of are death, Brandy’s signs of another set had inspection of TRWD’s annual visual the kayak on posted either side of the been dams, warning signs to make checks the said, chute on Dam No. 2 that “SAFETY they damaged sure are not obscured PLEASE CHIL- WATCH YOUR FIRST debris. DREN,” along with of a small picture Analysis with an figure water arm above head. Beason, Darrell of
According Director to conclu supports All the evidence the TRWD, time, for Operations at the there kayak that the of the chute sion condition drownings peo- or of had been children complain—that about which Johnsons ple attempting rescue children who had its smooth and slippery surface was and river, thought fallen in the so TRWD dangerous, swift current ran that there had been several such reason through it—is an intentional result unsuper- incidents was related more design not a chute’s malfunction the ade- vised children than an issue with chute or failure to maintain it. against walking through quacy warnings The evidence the chute was shows kayak chute. designed to ten wide and have a be feet death, Brandy’s posted TRWD After slippery on surface the bottom over warnings regarding strong current running velocity water would flow at Fort Star- social Worth media and kayaks sufficient to move and small boats Telegram. placed signs on also new TRWD Additionally, across it. shows evidence death; since Dam No. after than that the rest the Premises other 20, 2015, August that time until at least alleged the scorn1 hole boil related had deposition, the date of Beason’s there stairs, pier, parts of Dam effect—the drownings at Dam No. 2. In been kayak No. other than the chute—were August approved the TRWD Board design constructed in accordance with feet; twenty-five widening the chute to intentionally bringing people down place baf- planned also rubber TRWD river to fish launch boats. discourage chute to walk- fles around the allegations This evidence shows that the ing across the chute. regarding the condition of Dam However, early aware as as TRWD was including the remain- walking “all over” people 2003 that were than der the Premises other the scour Dam No. 2. The stairs to the dam down complaints hole and boil effect are about installed to facilitate fishermen and were Dam No. rather than people launching kayaks and inner tubes: contrary maintenance Dam No. purpose are stairs original design. Mogayzel Dep’t See v. Tex. “bringing] people [to river] down (Tex. Transp., 66 465-66 recreate ... contact ... the river.” [and] denied) (“[A]l- 2001, pet. App.-Fort Worth Likewise, fishing already ex- pier though had 2002; Appellants pled Appellees isting redesign dangerous of I-20’s the stairs notice condition connected a reasonable up pier.3 and dam to the failed correct within walking required points or use across the 3. Neither of these of access chute. time, alleged they City’s alleged that the dan about have not to decision gerous through modify existing design condition came about public of its *11 negligently implemented policy plan. or complaint change of to works” failure Rather, Appellants complain design of condi a to make safer was nevertheless of originally tion 1-20 as it was de a complaint design). to A complaint related signed”). Accordingly, Johnsons’ about of adequacy efficacy safety claims about conditions are warning those barred devices such as is a signs com of plaint under section 101.056 the TTCA. See about discretionary design, for Frame, City Austin v. immunity 03-15- which not Migu is San waived. (Tex. 00292-CV, 3068379, el, (“A 2016 *5 WL at 2 at 251 not S.W.3d court should 27, (mem. 2016, App.-Austin May pet.) no second-guess governmental a unit’s deci op.) (holding to that failure construct sion type about the or safety marker guard rail or from separating barrier road that appropriate.”); device is the most trail protect Olivares, to of trail from users road Tex. Dep’t Transp. v. 316 1 required City 89, (Tex. hazards “the so App.-Houston balance S.W.3d 100-0 2010, cial and economic a concerns devise no pet.); Dept. Dist.] Tex. [14th plan specific Bederka, 266, identified Transp. address each v. 271 (Tex. complaint (hold hazard” and that that 2001, App.-Beaumont pet.) no City should a specific have addressed hazr ing “Department enjoys immunity that the by erecting guardrail ard a or barrier “is regarding from suit place its decision to a ultimately complaint City about how the particular signal, traffic control even resources,” chose to allocate its which is signal premises make the [and fails safe “exactly policy the sort of formulation and that employed the] selection the device balancing of interests that the discretion added)), (emphasis is not its condition” ary-powers exception is protect”); meant to disapproved grounds by City on other Hathorn, 2989235, (“Even 2012 WL at *8 Grapevine v. Sipes, 195 S.W.3d taking light the evidence most favor (Tex. 2006). Accordingly, n.5 we conclude Hathorn, non-movant, is able clear regard and hold that Johnsons’ claims the negligence alleged by Hathorn signs’ allegedly inadequate warn not from faulty implementation arose creating as an unsafe condition are ings plans, from but deci policy TxDOT’s by 101.056. barred section sion roadway’s design.”). about the The Johnsons contend that different
Likewise,
compelled by
is
complaint
result
virtue of the reason-
the Johnsons’
University-San
about
adequacy
warning signs— ing
Texas State
Marcos
content,
Bonnin,
03-07-00593-CV,
their placement,
v.
both4—is a
WL
(Tex.
complaint
5, 2010,
about
App.-Austin
whether or
Nov.
decision
features,
(mem.
case,
install safety
pet.)
op.).
young
which is
In that
man
barred
section
Dep’t
jumping
balcony
101.056. See Tex.
after
died
from the
Ramirez,
Transp. v.
into
867 restaurant where he worked
the wa-
(Tex. 2002); Frame,
terway
at
at
Dam on
Spring
WL
Lake
the univer-
*6 (holding
complaint
City’s
about
sity’s campus.
parents
Id. at *1. His
sued
protective
failure
install
university,
barrier
that his
pleading
death was
essence,
guardrail
“in
complaint
of a
result
turbulent undertow
complaint
signs
This includes
implement
the Johnsons'
an initial
with a
negligently
implemented
policy
warning.
clearer
signs
add new
approve
because it did not
(Tex. 2015)
(quoting
into underwater caverns be-
him
pulled
Ann.
citing
Civ. Prac. & Rem. Code
According to the
Tex.
the restaurant. Id.
neath
Bonnin,
§
In
75.003(d)-(g)).
the court ad
university had creat-
petition,
Bonnins’
complaints
pleaded
as
dressed
unreasonably dangerous condition
an
ed
here,
Bonnins;
plead
the Johnsons
waterway
making repairs to the
a result of
any claims under the Recreational Use
died and
location where their son
at the
statute,
they rely
pursue
nor
on it to
could
to, or warn others
failing to block access
claims not otherwise allowed under the
about,
Id. The
the underwater caverns.
id.;
Arling
TTCA. See
Univ. Tex.
*12
section
Appeals
held that
Austin Court
cf.
(Tex.
Williams,
v.
ton
S.W.3d
regard-
Bonnins’ claims
101.056barred the
2015) (considering
Recreational
whether
and fail-
creation of the condition
the
statute,
applies
“activities]
Use
warn,
allegations
holding that those
ure to
enjoying
associated
nature or the out
with
argument
on the
that the
were not based
doors,”
attending
applied to the act
and
university
to maintain the wa-
had failed
game). Ac
observing
competitive sports
a
but,
terway
repairs
after the
were made
cordingly,
reasoning
the
Bonnin does
rather,
they
Bonnins’ son’s
attributed the
apply
except
the Johnsons’ claims
not
design
re-
to “the initial
decisions
death
Premises,
regarding
parts
the
other
repairs.” Id. at *2.
garding the
than
scour hole and boil
undertow
the
However,
court
on to address
went
current,5
related
from section
petition:
Bonnins’
separate
a
claim the
immu
101.056’sreinstatement of TRWD’s
statute,
Use
that under the Recreational
nity.
University had
a
allowed
defective
argue
Ultimately,
the Johnsons
property—a dangerous
on
condition
from,
design
not cre-
that there is a difference between
existing apart
undertow
on
ing dangerous
property
cav-
a
condition
real
by,
design of the underwater
ated
dangerously-designed
allowing
... or
have
such a
“knew
should
erns—when
However,
to continue unabated.
property
known
would be used
condition
[that]
*3;
propo
not stand for that
purposes.”
Id. at
see
the case law does
recreational
Instead,
holdings
Ann.
are clear
Tex. Civ. Prac. & Rem. Code
sition.
2016)
(West
if
alleged
property
§
an
real
condition is
Supp.
75.001-.007
&
discretionary design
of a
(commonly
Use
result
decision—
known as the Recreational
words,
statute).
no law mandates
certain
The Recreational Use statute nei-
other
liability
sovereign
design—rather
or different
than the result
creates
nor waives
ther
instead,
properly
maintain the real
immunity;
“limits the
the failure
further
liability
property
designed—even
of a
cir-
as
the result
governmental unit under
design
is
governmental
discretionary
in which
decision
cumstances
allegedly dangerous
of an
condi
unit would be liable under” the TTCA.
creation
entity’s im-
City
City,
governmental
tion—then the
Suarez v.
Texas
appear
phrase
next
to the Johnsons’ alle-
5. The Johnsons
to use tire
"de-
sion
section
dangerous
ceptively
interchangeably
“deceptively dangerous
gations
current”
cur-
about
brief,
petition
in their
either to
refer
it can be construed as
rent” to
extent that
running through
kayak
the water
pertaining
alleged boil effect at
to the
the base
creating
the current
the boil or undertow
immediately
Dam
downstream from
of and
larger
effect as evidenced
scour hole.
(in-
Miranda,
Mogayzel, 66 465-66. Therefore, [Citation omitted.] like- we will wise review evidence related Complaints Regarding Deepen- The scour hole and condition of the river at the ing of Hole the Scour and Evidence immediately base downstream of Raising Regarding a Fact Issue the dam. Existence of or Boil an Undertow Verreault, According- to original Effect Do Not Relate to a Discre- of this" Trinity channelization tionary Design Decision Army Corps River Engineers *13 all contends that of the TRWD purpose was for the of preventing and claims, including Johnsons’ those related minimizing flooding. That effort included to the scour possible hole undertow and channel; grade of leveling design the of immediately and boh at the base grade important to prevent is erosion 2, downstream of Dam No. are barred keeping moving while also water down- Johnsons, however, section 101.056. The stream. grade The intended for the in area respond discretionary that excep the acts which Dam No. is now located apply aspects tion does not to of those the mean feet sea level. After the channeliza- Premises because tion, original the dams were constructed of purposes sediment and con- erosion
Here, knew of TRWD and allowed the trol. large Trinity scour hole at the of base Park Dam of knew and allowed that prior The evidence to the showed dangerous the conditions created the of Dam 2003 reconstruction a scour hole,
large including scour an undertow hole existed two to three hundred feet swimming and boil effect which made dam, original of the downstream which difficult, of and knew and allowed the created a effect. According boil Ver- dangérous 10 12 foot depth of the reault, formation of the scour holes down- scour’ hole. The scour hole made the stream of low-water common dams was depth of the Fork 10 to 12 Clear feet before because the “near vertical-to- deep of instead three feet. TRWD knew of vertical” downstream face such dams dangerous and allowed all of these “highly flowing the aerated” water over conditions on premises. dropped them as it faces. down dam
As Safety Engineer flowing has The of the force downward water testified, not on part “impact[ immediately ] the scour hole was would the water structure,” any rely cre- TRWD and did on the downstream side hole, any design. ating a “zone of rotation” as it flowed TRWD The scour boil effect, channel, depth along of the rose undertow and river bottom downstream, rely on to- design. The scour and was “directed back hole, effect, This high- boil river ward the face the structure.” undertow and boil, depth dangerous ly were a defective and aerated area is called a Trinity objects condition at that fall into the river pushes the base Park bottom, survey of channel bathymetric the river from the top area during re- performed that he directing back toward the structure. them consequence that the This is a of water construction dams showed natural immediately flowing such a vertical-face dam. sea downstream over mean level pre-2003 designs from vertical-face dam from the old dam varied These bank drownings, including drownings caused from 514 sea to 525 bank feet mean level members, capsized part rescue crew boats. of the feet mean sea level. The center channel closest to the down- averred an affidavit that Verreault from ranged face of the stream old dam design of Dam No. the other the 2002 level, 514 to sea 518 feet mean hand, . Corps means that had excavated higher pool downstream creates water original design the channel drop during even a vertical without chan- grade—522 feet mean sea level—the higher designed is flow. The chute water immediately nel bottom below down- along direct water surface stream face of the dam had eroded old river and not bottom towards the original design feet eight four below Therefore,, channel. if an individual falls natural, grade. expected This result is the dam, hydraulic off there is boil over the effect flow water old- down, keeps pushes them them un- style vertical face dams. water, pulls back der them toward Rather, flow dam. water redesigned and recon- When TRWD push should individual downstream Dam No. 2 in structed river to and toward the side shal- existing decided not to fill scour hole low water. bring channel elevation back to the *14 Verreault, originally designed 522 According is “no boil feet sea to there mean level. by” kayak zone and no undertow Dam Because the of the chute would created base level, anyone off the feet sea No. falls dam be at 525.5 mean TRWD who kayakers encounter.anything wanting other than that to should was concerned agreed He perform the normal flow river. or other maneu- the underwater rolls swimming that more through boil makes difficult the chute could passing vers after that of Dam No. design but the kayaks. reiterated hit or river their heads the 2 not create a “does boil.” only a three foot bottom with and one-half Instead, clearance. that TRWD decided admitted that the flow wa-
Verreault hole, existing plan the which the scour through kayak ter the chute creates a being 516 designated approximately as feet “standing wave” on the side. But other level, place. sea mean would remain Verreault, according to water exits once chute, velocity drops the off because the that Beason averred TRWD learned widens; “very channel thin stream the scour hole created the old dam through water the channel that mov[es] during redesign The construction. appears stop almost to as water pool,” contemplated “existing that spreads out, velocity on and there’s no plan as feet which was described of that.” that the sides Verreault said flow approximately “or or 9 mean level sea Brandy not have drawn under the would chute,” depth feet water below the of the water because dam. place remain in construction would after construction, During 2. Verreault of the Dam No. work- that base averred dam,” kayak temporary “coffer approximately is at 525.5 feet ers built a chute (such soil, that of rubble mean “numerous items sea level. He also averred were, concrete) gravel, dis- the water from and remnant someone the river who equipment lodged by the construction and was to “closer the near shore” and who According “appeared into the area.” to be slid scoured unable swim and was Beason, floating of Dam with after construction the drift the current.” The complete, looking with the other witness out' of he consulted de- the building signer, saw a head who told Beason above the water near where kayak Brandy’s body bottom downstream of was found. Fort The Worth of at depth eight Department needed be at a least Fire Team Dive noted Therefore, depth feet. removed Brandy the coffer the water where TRWD “graded dam channel bottom a found was thirteen feet. depth keep that would river channel death, Brandy’s After Beason contacted from
bottom less than feet the bottom kayak chute, designer Gary into kayak chute the dam.” built Lacy, changes if any ask could be made
However, surrounding also shows or might evidence that at dam area that death, Brandy’s drownings. the time of Lacy scour hole decrease risk ad- raising kayak deeper at the chute was vised Beason that the channel base bot- contemplated tom eight depth level, than even the feet to 522 feet mean sea approximately the conclusion of the dam rebuild. three and one-half feet be- Accord- Verreault, ing chute, before sometime or after low the was now feasible many had kayakers could not re- because moved to death—Verreault us- “shorter, ‘play’ member whether in 2012 2013—as a boats.” stubbier This hydrographic development sport result of of kayaking an sur- in the unrelated vey, raising a scour hole the channel bottom discovered locat- made more from ed dam to than it have approxi- the base of the feasible would been mately two hundred feet downstream from by deposition Verreault testified stretching feet across. The job TRWD is to his with monitor been loose materials that had used for the on or “any deposition of near a sediment fill away point, had been washed at some might be from dam need removed possibly event in during a flood 2007. Ver- river, by bathy- areas indicated reault not think scour hole resulted *15 in, surveys to in metric that need be filled from kayak from flow of water the bottom match order to make the river that acknowledged chute. He a small is- design grade.” He that testified land of appearing debris be the fill that to changes design had approved Board placed had been in the river bottom had grade immediately downstream downstream, appeared but he did not August No. which included appeared. know when that had “island” bringing adjacent grade immediately if agreed design grade Verreault that to chute to kayak the base of the within of the river bottom had been to elevated chute, three feet of the or base 522 feet mean at the sea level downstream sea level. about 522 feet Verreault mean person base Dam No. would have agreed to grade with the raise the decision been up. able to stand location, at by Lacy, that as -recommended program Park to “part
Two witnesses Plaza build- because [TRWD’s] adjacent south of the to both raise channel or Dam No. levees and bottoms person grade,” 2 saw day. design water that lower them to this an One was screaming changed. heard when he area that to looked out needed be Addition- window, grade his flailing ally, office hands he said that were elevat- saw above depth that level, thus shows person of sufficient The evidence ed that eight to be supposed the dam was into below up if he or she fell height could stand instead eleven by design, feet but was that location. the river at deep; that the scour hole was thirteen feet primary main- Beason testified that and fill up made of loose debris partially for the dam is “debris removal tenance deeper away and over that washed became also storms flow events.” He [and] after time; charged with moni- that was job warning that replacing signs had the maintaining depth; the channel toring and may damaged during storms. have been deep hole that an almost eleven foot scour aware of the scour hole Beason was Dam No. was rebuilt had existed before kayak pool” at the base of the “plunge feet; depth eight into in 2003 and filled chute; thought eight it at feet he least previ- a boil existed at the that effect had redesign. deep as a result site; an artificial ous on the same that dam rebuild, “plunge pool” this Before the had been created down- island debris thus, deep; feet eleven the concrete 2; of Dam that at least stream placed fill in it during rubble that was swum that area person one who had only brought up reconstruction about the water save child indicated feet, eight three still about feet under the bottom and then pushed her down to the pre-dam design grade of 522 feet mean sea up. This is some popped her back evidence design changes—bringing The 2015 level. contradicting TRWD’s assertion Ver- grade up to mean sea around feet testimony conclusively proved that reault’s level—occurred because after due to the there was boil effect death, police told creating TRWD was a fact chute and thus Bea- depth was eleven thirteen feet. issue as whether TRWD’s failure eight-foot-designed depth at thought son that was unusual the time maintain the sup- creation of a boil effect he that was contributed because remembered at base of Dam No. undertow eight to be feet. posed Thus, deepening complaints about the Beason, According to as a result of the possible scour hole and related boil effect report Department Fire Dive Team’s complaints original de- are about they depth about the the river where to maintain the sign, but rather the failure Brandy, a bathymetric found he ordered Trevino, design. original See survey, depth which indicated the (holding 62-63 that section 101.056 did indeed, was, at that location water eleven allegations that immunity from reinstate deep. eight to thirteen instead of feet main- properly not been bleachers had why peo- thought many When asked he so supported in a condition when tained safe ple at Dam Beason had drowned by police report stating the sides said, loose from wear and *16 the bleachers were platform boards and that some of the tear I I problem knew what the real wish causing slightly warped, “possibly were employees ... I that was. have no have trip”). someone ..., any eyewitness witness had ambiguous statements are Conversely, complaints— somewhat the Johnsons’ conflicting. existing fall off the original Did someone that scour hole had (when into was rede- they dam the water? 2002 and 2003 the dam Were rebuilt) in to a not in I been filled they signed chute? Were the chute? Brandy have been nothing depth, have to tell me ex- would that—what three-foot she fell in—are all actly happened. up to stand when able
363 (Tex. discretionary design 351, to a function. related 155 356-57 App.-Fort S.W.3d 2004, denied) pet. No evidence shows that TRWD ever (quoting Worth Villarre State, 419, (Tex. in 2002 or planned 2003 to raise the exist- al v. S.W.2d depth; App.-Dallas 1991, denied)). scour hole to a in- three-foot writ is There stead, eight- that no ordinary evidence shows evidence that an user of Dam depth design foot intentional so to No. would encounter the scour hole and passage kayakers Although accommodate of and boil present effect. the Johnsons boats. people ed evidence that walk “all would
over” the dam and that off some had fallen Supports Allegation Evidence No dam, no there is evidence that the Either a Misuse of Personal that deepened or resulting scour hole boil effect Property Special or a Defect Caused was a temporary condition out of the ordi Brandy’s Death nary of events that have course would an unexpected danger created to an ordi argues that the John- TRWD nary Accordingly, user the dam. we any surviving sons cannot maintain claims they allege conclude and hold did not that personal either a property under misuse special a Beynon, defect. See 283 S.W.3d theory special theory or a defect because 330-32; Dep’t Highways State & law, a they alleged as matter have not 235, Pub. Transp. Payne, v. 838 S.W.2d shown viable claim under theo either (Tex. 1992) reh’g); 238-39 (op. on Ward ry. argue they The Johnsons do not law v. Dep’t Transp., Tex. claims, can such agree. maintain and we (Tex. 2009, App.-San 373-74 Antonio allege any specific The Johnsons did not pet.). We thus must address TRWD’s TRWD, personal property misused nor argument regarding final whether any of the evidence show mis such alleged premises claim Johnsons defect they alleged use. To the extent immunity is waived under sec warning signs they misuse because tion 101.021. inadequate, liability are is not waived; a nonuse or failure erect ade Allege Deeper TRWD Did Not quate signage allegation is not an of mis Alleged Boil “Scour Hole” and Effect personal property. City use of Fort See Open and Obvious Was Crockett, Worth v. S.W.3d (Tex. denied) App.-Fort pet. finally argues Worth that even (op. reh’g). on conditions Additionally, the Johnsons’ claims are barred, complain they which the Johnsons cannot be nevertheless failed state a special special A liability defects. defect is condi claim for which its is waived be danger Brandy open tion the same kind or an exca cause class as vation or Dep’t obstruction. Tex. obvious.6 But because TRWD did as (Tex. York, Transp. jurisdiction v. plea sert its 2009) (op. reh’g). Additionally, spe “a scour open hole and boil effect were something obvious—only cial defect must be out of the chute and water ordinary running through course of events rather than a it—the trial court did not routine, long-standard, jurisdiction permanent denying plea de err Andrews, Dep’t Transp. fect.” Tex. on that v. basis. *17 plea jurisdiction, TRWD ways raised other in which it con- 101.022 its to the but it in open argument appeal tends the Johnsons failed to state a claim that to and limits its its argument, was waived under sections 101.021 and obvious pri private person issue owes to a licensee on
Accordingly, we overrule TRWD’s property.” vate Tex. Prac. & Rem. allegations regarding Civ. as to the Johnsons’ 101.022(a) (West 2011). § A Ann. resulting boil Code deepening scour hole and the (1) prove alleged failure to licensee must that: a condition to effect due TRWD’s premises the created an risk part of the unreasonable maintain that area (2) licensee; harm to the the owner No. 2. But we sustain channel around Dam (3) condition; actually complaints knew Johnsons’ its issue as to the Premises, condi actually licensee did not know the in- about remainder (4) tion; ordi have filled in the owner failed exercise cluding that should TRWD protect during redesign nary care the licensee from dan scour hole (5) a depth ger; failure of Dam No. to a owner’s and 2003 rebuild proximate injury cause of to the licensee. chute. only three below feet Dep’t Highways Transp. v. State & Pub. 1992) (Tex. Payne, 838 S.W.2d Conclusion (op. Sampson on reh’g); see also v. Univ. Having overruled sole issue in TRWD’s Austin, at Tex. 500 S.W.3d of (Tex. 2016) part, affirm trial court’s order we de- Payne, (citing nying plea jurisdiction TRWD’s 237). part opinion. as set forth in this But hav- disputes sustained its as some of No one issue that TRWD knew above, rate, chute, the Johnsons’ claims as detailed we slippery water flow hole, reverse the trial court’s order as to those the scour and there is some evidence judgment of claims and render a dismissal knew about the TRWD record only. App. those claims See Tex. R. P. boil effect. There is at least evidence some 43.2(c). this record that Johnson did not know In alleged danger. discharging duty
SUDDERTH, J., concurring filed a ordinary protect to exercise care John- dissenting opinion. son from must dangers alleged, dangerous have either con- warned DAUPHINOT, J., concurs without dangerous dition made such condition opinion. reasonably argue safe. The Johnsons warning, the nebulus “SAFETY FIRST CONCURRING AND DISSENTING CHILDREN,” PLEASE WATCH YOUR OPINION per- warning is tantamount to no at all as SUDDERTH, Justice, taining BONNIE deceptively fast water flow concurring dissenting. rate, designed slippery, to be and a scour hole and boil effect that could not be Act, Tort Under the Texas Claims eye. detected with the naked On these governmental “personal unit is liable for evidence, pleadings I and with this would injury so and death caused condition hold that the trial court not err govern of ... property use real denying plea jurisdiction would, private per unit mental were it to complaints regarding these four con- son, according be to the claimant liable majority To ditions. the extent Texas law.” Tex. Civ. Prac. & Rem. Code hold, not so I respectfully does dissent. (West 2011); §Ann. 101.021 see State v. Shumake, (Tex. 2006). majority’s I concur with the conclusion cases, alleged or premises-defect governmen In the Johnsons “have not tal unit claim” a mis- duty owes the care “that a shown a viable under either *18 personal property theory spe- use of or a theory,
cial defect I and would sustain as to issue these two Otherwise,
claims. I would overrule the
remainder of on appeal. TRWD’s sole issue Emily Kay
EX PARTE SMIRL
No. 07-16-00055-CV Texas,
Court Appeals
Amarillo.
January Wooldridge, E.
James for S. E. K. Gore, R. Richard for The of Texas. State C.J., QUINN, Before and CAMPBELL PIRTLE, JJ.