City of Haltom City v. Aurell

• Decision Date: 20 September 2012
• Docket Number: No. 02–11–00197–CV.,02–11–00197–CV.
• Citation: 380 S.W.3d 839
• Parties: CITY OF HALTOM CITY, Appellant, v. Brian AURELL, Individually and as Next Friend of Ranger Hunter Aurell, A Minor; Jacki Chantell Sexton–Aurell, Individually; Aaron Collins, Individually and as Representative of the Estate of Alexanderia Collins; and Natasha Collins, Individually and as Representative of the Estate of Alexanderia Collins and as Next Friend of Cheslea McMaster, Appellees.
• Court: Texas Court of Appeals

380 S.W.3d 839

CITY OF HALTOM CITY, Appellant,

v.Brian AURELL, Individually and as Next Friend of Ranger Hunter Aurell, A Minor; Jacki Chantell Sexton–Aurell, Individually; Aaron Collins, Individually and as Representative of the Estate of Alexanderia Collins; and Natasha Collins, Individually and as Representative of the Estate of Alexanderia Collins and as Next Friend of Cheslea McMaster, Appellees.

No. 02–11–00197–CV.

Court of Appeals of Texas, Fort Worth.

Aug. 23, 2012.

Rehearing Overruled Sept. 20, 2012.

James T. Jeffrey, Law Offices of Jim Jeffrey, Arlington, TX, for Appellant.

Robert H. Osburn, Dallas, TX, for Appellees Brian Aurell, Jacki Chantell Sexton–Aurell.

Billy McGill, Dallas, TX, for Appellees Aaron Collins and Natasha Collins.

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

In this interlocutory appeal,¹ appellant City of Haltom City (the City) appeals the trial court's order denying its motion for summary judgment concerning the claims brought by appellees, whom we have listed above. In five issues, the City argues that the trial court does not have jurisdiction over appellees' claims because the City's immunity has not been waived. We reverse the trial court's order denying the City's motion for summary judgment, and we render a judgment dismissing appellees' lawsuit against the City with prejudice.

Background Facts

Over the course of many years prior to June 2007, Skyline Mobile Home Estates (Skyline), which is located in the northern part of Haltom City, flooded numerous times when the City received heavy rain. During those floods, members of the Haltom City Fire Department (HCFD) would sometimes have to evacuate and rescue people who were in Skyline and to barricade some areas of Skyline to make them inaccessible. In March 2007, for example, members of the HCFD, at their own risk, performed a swift water rescue in Skyline. In that flood, approximately forty people were evacuated, and several homes sustained damage. Between March 2007 and June 2007, the City did not take any action to protect Skyline's residents from flooding except creating a policy that allowed the mayor to force evacuations in the event of another flood.

Parts of Skyline are in low-lying areas near Whites Branch Creek, and those parts are therefore prone to flooding.² The HCFD, on its own initiative, therefore monitored Skyline, the City's worst area for flooding, during times of heavy rain. But neither Skyline nor the City regularly informed Skyline's residents of the danger of flooding there before June 2007.

On the night of June 17, 2007, storms with heavy rain moved into the North Texas area. At about midnight, an HCFD lieutenant, Greg Wagner, went to Skyline. At that time, it was not raining, there was no flooding, and the forecast did not call for more heavy rain. After midnight, in the early morning of June 18, the HCFD received a call from the city of Keller about flooding there, and members of the HCFD used a boat to rescue people who were trapped on the roof of a car that was in swift-flowing floodwater.

At 1:30 a.m. on June 18, Skyline was not flooding. But by about 2 a.m., when Lieutenant Wagner and other HCFD employees, including HCFD Chief Wes Rhodes, returned to Skyline with the same boat that they had used in Keller, they found that water had risen past the banks of the creek.³ Eventually, Skyline residents began to call 911; the water had risen several feet and was high enough that some residents had to get on the roofs of their mobile homes. Although Lieutenant Wagner had worked for the HCFD for many years, he had never seen flooding that bad in Skyline. Several cities, including Fort Worth, sent crews to Skyline. Lieutenant Wagner, along with others, entered Skyline to rescue dozens of its residents, including a man and a child who were holding onto a tree. At least twenty-four HCFD personnel responded to the emergency at Skyline.

Jacki Chantell Sexton–Aurell and her husband, Brian, lived in Skyline in June 2007. On June 17, a couple of hours before midnight, Jacki noticed that there was some water in the trailer park, but the water was not in the streets, and it was not raining at that time, so Jacki went to sleep. At around midnight, Jacki awoke and saw that the water had risen to near the door of her house, which was elevated about four feet off of the ground. Jacki and her eight-year-old stepson, Ranger, could not get out of their home, so Jacki called 911. When Jacki and Ranger went to Jacki's bedroom, Jacki smelled gas inside her trailer and called 911 again. After the water rose more, the mobile home exploded. The explosion threw Jacki and Ranger out of a window and caused them to suffer severe burns. Rescuers eventually reached them and took them to an ambulance. An engineer later opined that the Aurells' home had shifted because it was not properly tied to the ground. When the home shifted, the gas line broke, causing the explosion.

Aaron Collins also resided in Skyline with his wife, Natasha, their four-year-old daughter, Alexanderia, and Natasha's daughter, Cheslea. They had moved into Skyline about a month before the June 2007 flood occurred. On the night of June 17, a third child, who was Cheslea's friend, stayed in the Collinses' mobile home. According to Natasha, when she went to bed that night, there was nothing to indicate that a flood was going to occur. Eventually, Natasha thought she heard thunder and awoke; she later learned that she had heard the explosion of the Aurells' trailer. By the time Natasha woke up, water was ankle deep in the Collinses' mobile home. Natasha rushed to her daughters' bedrooms, and by the time she got there, the water was knee deep. Natasha stood on a couch with the three children who were in the home and called 911 while Aaron tried to open doors.

Eventually, Aaron opened the back door and found a small boat outside of the mobile home. Everyone in the Collinses' home entered the boat, but the boat capsized when the rushing water caused it to slam into another mobile home. Natasha grabbed the three girls as the water took Aaron downstream. The current eventually ripped Cheslea and her friend from Natasha's arms, but Aaron was able to catch them, and he took them to another mobile home. Another strong current then caused Natasha to lose balance, and she lost her grip of Alexanderia, the four-year-old girl. Aaron tried to catch Alexanderia, but he was not able to. The current slammed Natasha into a tree, where she held on and yelled for help. Aaron dove into the water but was unable to find Alexanderia. Rescuers eventually retrieved Natasha and immediately left again to rescue more people.

Natasha told several firefighters that Alexanderia was missing, and Chief Rhodes sent rescuers to look for her, but they could not find her. When the sun arose and the water receded, Alexanderia's dead body was found in a wooded area that also contained debris that had been carried away by the flood. ⁴

The Collinses' and Aurells' homes were located in a floodway.⁵ But neither family had been told that their home was in a flood-prone area. Both families have sworn that if they had known of that danger, they would not have moved into Skyline.

The June 2007 flood displaced and damaged several mobile homes within Skyline and sent two homes and a car into the creek. The record indicates that the flood caused more than $1 million in property damage. When the flood occurred, Haltom City was not receiving heavy rain. Chief Rhodes, who had been working for the HCFD since 1986, said that until the June 2007 Skyline flood, he had never known flooding to occur in the City when there was no ongoing heavy rain.

Tarrant County declared a local state of disaster. On June 19, 2007, Tarrant County Judge B. Glen Whitley sent a letter to Governor Rick Perry to ask for state assistance in responding to the flood. Officials also asked for and received federal assistance. In part by money that the City received from a federal grant, it eventually began purchasing many Skyline properties that were located in the floodway or floodplain. Also, in 2008, the City cooperated with other cities to create a Hazard Mitigation Action Plan, which broadly addressed potential hazards that could occur in the future. After the flood, Skyline put up signs that warned residents about parts of Skyline being located within a floodplain; the signs cost between $20 and $40 each.

At the time that the flood occurred, the City did not own or maintain any land in or adjacent to Skyline, did not own or control streets in Skyline, did not own or maintain any part of the creek that flows through or is adjacent to Skyline, and did not have any “moveable property” in Skyline.⁶ Also, the City did not require residential property owners, including owners of mobile homes, to obtain a permit when moving into a home in the City. Skyline's residents did not pay the City directly for water and sewer service; instead, the City billed Skyline, which billed the residents. The City did not furnish electric or gas utility service to Skyline's residents.

Appellees sued the City, Skyline (for negligence and negligence per se), and other parties.⁷ Against the City, appellees asserted negligence claims based on special defect and premises defect theories, citing sections 101.021 and 101.022 of the civil practice and remedies code.⁸ Appellees also asserted a claim against the City under Wilson v. Tex. Parks and Wildlife Dep't,⁹ alleging that the City was liable because it had undertaken a duty to make Skyline safe and had breached that duty. Appellees sought damages for their personal physical and emotional injuries, but they did not seek damages relating to their property.

The City answered appellees' suit and filed a motion for summary judgment on traditional and no-evidence grounds.¹⁰ In the motion, the City contended that it had immunity from appellees' claims because it...