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Tarrant Regional Water District v. Johnson

Supreme Court of Texas

April 12, 2019

Tarrant Regional Water District, Petitioner,
v.
Richard Johnson and Sharkara Johnson, Individually and as Personal Representatives of the Estate of Brandy Johnson, Respondents

          Argued October 30, 2018

          On Petition for Review from the Court of Appeals for the Second District of Texas

          Justice Busby did not participate in the decision.

          OPINION

          JUSTICE BLACKLOCK

         On January 16, 2013, Brandy Johnson attempted to cross the Clear Fork of the Trinity River in Fort Worth by walking across Trinity Park Dam No. 2. She was five months pregnant and wearing heavy clothing. In the middle of the dam is a ten-foot-wide kayak chute, through which the river swiftly flows. Brandy lost her footing on the dam, slipped into the river, and drowned. Brandy's parents sued the Tarrant Regional Water District, which constructed and maintains the dam from which Brandy fell. The District, however, is a governmental entity and therefore generally immune from suit unless the Legislature has waived its immunity. Our task in this appeal is to examine the Tort Claims Act to determine whether the Legislature has authorized this suit against the District. We conclude that it has not. For the reasons explained below, section 101.056 of the Tort Claims Act, known as the discretionary function exception, applies here. As a result, governmental immunity bars the Johnsons' claims. We therefore reverse the judgment of the court of appeals in part and render judgment dismissing all claims against the District.

         I. Background

         The Tarrant Regional Water District is a water control and improvement district created under article XVI, section 59 of the Texas Constitution. Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 549 (Tex. 2004). Its responsibilities include flood protection. Tex. Water Code § 51.121(b). The District is responsible, along with the U.S. Army Corps of Engineers, for maintaining flood control along the Fort Worth Floodway, which includes the Clear Fork of the Trinity River. In the 1960s, the District built a series of dams as part of a joint effort with the Corps of Engineers to channelize part of the Trinity River to help with flood control. The original dams were vertical-face dams, which have a steep drop off. The Corps' original design plans from 1966 indicated that, below the dam, the river bottom would be graded to a depth of approximately 3.5 feet in order to facilitate water flow.

         In 2002, the District redesigned several dams along the Clear Fork of the Trinity River, including Dam No. 2, to allow for kayaks and other small vessels to pass through the dams as they navigate the river. In 2003, the District demolished the old dams and constructed new ones. As the District was constructing the new version of Trinity Park Dam No. 2, it discovered that the old dam had created a "scouring effect" downstream, the result of water flowing vertically over the dam and eroding the bottom of the river. According to the affidavit of Louis Verreault, the District's Dam Levee Safety Engineer, by 2003 the river bottom had eroded to a depth of roughly eight or nine feet below the bottom of the dam. Darrell Beason, the District's then-Director of Operations, testified that rather than filling in the eroded area and raising the depth to the 1966 design level of 3.5 feet, the dam design engineer decided the deeper river bottom should remain in place to prevent kayakers and tubers from injuring themselves when passing through the chute. Beason testified that, under the new dam design, the riverbed immediately downstream from the kayak chute needed to remain at "a depth of at least eight feet." The District graded the river bottom accordingly.

         After Brandy's death, her parents, the Johnsons, sued the District. The Johnsons sought to overcome the District's immunity by alleging the accident was caused by the use or condition of the District's tangible or real property. See Tex. Civ. Prac. & Rem. Code § 101.021(2). They alleged both premise-defect and special-defect theories of property-owner liability. See Tex. Civ. Prac. & Rem. Code § 101.022. In their third amended petition, the Johnsons alleged that the kayak chute was slippery and that the current running through it was deceptively dangerous and difficult to see. They also alleged that there were no signs warning of the strong current and slippery surface. Additionally, the Johnsons claimed that the scour hole at the base of the dam and the "hydraulic boil effect" it created were not visible or obvious to a person crossing the dam and that no signage warned specifically of these dangers. They further alleged that the District had knowledge of these dangerous conditions because of previous incidents at this location.

         The District filed a plea to the jurisdiction. Among other arguments, it contended that all the Johnsons' claims are barred because of section 101.056 of the Tort Claims Act, which creates an exception to the waivers of immunity otherwise provided by the Act. Section 101.056 states:

         This chapter does not apply to a claim based on:

(1)the failure of a governmental unit to perform an act that the unit is not required by law to perform; or
(2)a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

         "The provision generally preserves immunity not only for the state's public policy decisions, but also for the state's failure to act, when no particular action is required by law." Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007). The District argued that section 101.056 shields it from any liability that might otherwise flow from its discretionary decisions related to the design of the dam and its safety features. Additionally, the District argued that the Johnsons could not establish a premise-defect claim sufficient to waive its immunity. The trial court denied the District's plea to the jurisdiction.

         On interlocutory appeal, the court of appeals affirmed in part and reversed in part. 514 S.W.3d 346, 350 (Tex. App.-Fort Worth 2016). The court rejected the Johnsons' effort to establish a waiver of immunity based on either a misuse-of-personal-property theory or a special-defect theory. That left only the premise-defect theory remaining. The District argued that the Johnsons had not properly stated a premise-defect claim sufficient to waive immunity since the danger to Brandy was open and obvious. The court of appeals rejected this argument. It determined that because the District only argued in its plea to the jurisdiction that the dangers related to the kayak chute and swift current were open and obvious, and not that the dangers related to the scour hole and alleged boil effect were open and obvious, the trial court properly denied the District's plea to the jurisdiction on that basis. The court of appeals held that the Johnsons' claims regarding the dam itself (i.e., the slippery nature of the kayak chute and the swiftly flowing current passing through the chute) were barred in light of section 101.056 because those features of the dam were the result of the District's intentional design decisions. See Flynn, 228 S.W.3d at 657 (distinguishing "the design of public works, for which there is immunity, from their maintenance, for which there is not immunity"). The court of appeals also held that the Johnsons' claims regarding the adequacy of the District's warning signs were all complaints related to the design of the dam and were thus barred by immunity due to section 101.056. However, the court of appeals held that the scoured or eroded riverbed and the resulting possibility of a "hydraulic boil" were not related to the dam's original design but resulted from the District's failure to maintain that design. On this basis, the court of appeals upheld the trial court's denial of the District's plea to the jurisdiction as to the Johnsons' premise-defect claim based on the scour hole and alleged boil effect.

         The District petitioned for review. The Johnsons did not. In this Court, the District continues to argue that, by operation of section 101.056, immunity bars all the Johnsons' claims, including those based on the scoured area of the riverbed and the alleged boil effect. The District also re-urges its argument that the Johnsons' premise-defect claim does not support a waiver of immunity because Brandy chose to encounter the open and obvious risk that she might drown.[1]

         II. Standard of Review

         A. Texas ...


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