Tarrant Reg'l Water Dist. v. Johnson

• Decision Date: 30 December 2016
• Docket Number: NO. 02–16–00043–CV,02–16–00043–CV
• Parties: TARRANT REGIONAL WATER DISTRICT Appellant v. Richard JOHNSON and Sharkara Johnson, Individually and as Personal Representatives of the Estate of Brandy Johnson Appellees
• Court: Texas Court of Appeals

514 S.W.3d 346

TARRANT REGIONAL WATER DISTRICT Appellant

v.Richard JOHNSON and Sharkara Johnson, Individually and as Personal Representatives of the Estate of Brandy Johnson Appellees

NO. 02–16–00043–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: December 30, 2016

Joel E. Geary & James M. Welch, Vincent Serafino Geary, Waddell Jenevein, P.C., Dallas, TX, for Appellant.

Jamshyd (Jim) M. Zadeh, Law Offices of Jim Zadeh, P.C., Jason C.N. Smith, Law Offices of Jason Smith, Fort Worth, TX, for Appellees.

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

OPINION

TERRIE LIVINGSTON, CHIEF JUSTICE

This is an interlocutory appeal from the denial of a plea to the jurisdiction based on alleged governmental immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016). In a single issue, appellant Tarrant Regional Water District (TRWD) contends that the trial court erred by denying its plea to the jurisdiction because the Texas Tort Claims Act (TTCA) does not waive its immunity from suit on the claims brought by appellees Richard and Sharkara Johnson. We reverse and render in part and affirm in part.

Background

On January 16, 2013, the Johnsons' nineteen-year-old daughter Brandy Johnson tragically drowned in the Trinity River after apparently attempting to walk across Trinity Park Dam No. 2 (Dam No. 2) in Fort Worth on her way to a job interview. That dam has a kayak chute in the middle through which the river rapidly flows. After Brandy's death, the Johnsons sued TRWD, which "owns, operates[,] and maintains the systems of levees, sump areas, flood gate structures, channel improvements, river bottoms, low water weirs, dams, walkways[,] and kayak chutes on the Clear Fork" of the Trinity River in the area where Brandy drowned. In their third amended petition, the Johnsons brought claims under the TTCA alleging that the following conditions constituted either a premises defect, a special defect, or both: "Trinity Park Dam No. 2, the kayak chute on Trinity Park Dam No. 2, the levees, rock stairs and handicapped accessible walkway leading to Trinity Park Dam No. 2, the Clear Fork of the Trinity River, the river bottom of the Clear Fork of the Trinity River[,] and the large scour hole located at the base of Trinity Park Dam No. 2" (collectively the Premises). They also alleged that (1) TRWD is liable under the TTCA for negligence because an employee had used or misused tangible personal property or furnished Brandy with inadequate or defective tangible personal property and (2) TRWD was either grossly negligent or acted with malicious intent or bad faith. Finally, the Johnsons brought wrongful death and survival causes of action.

TRWD filed a plea to the jurisdiction alleging that its immunity had not been waived under the TTCA for any of the Johnsons' claims because (1) the Johnsons did not identify any item of personal property allegedly used or misused by an employee, (2) as a matter of law, the Premises are not a special defect, and (3) even if the Johnsons alleged a premises defect for which its immunity is waived, the TTCA reinstates that immunity because its decisions regarding the design of the Premises and any related safety features, such as warning signs, are discretionary. Alternatively, TRWD argued that if (3) above does not apply, the Johnsons still cannot maintain a premises defect claim because they (a) failed to identify a premises defect that created an unreasonable risk of harm, (b) even if they alleged an actionable defect, there is no evidence it caused Brandy's death, (c) the kayak chute and water running through it are an open and obvious danger, and (d) if TRWD had a duty to warn Brandy, as a matter of law it did so adequately. The trial court denied the plea to the jurisdiction.

Standard of Review

We review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ; City of Wichita Falls v. Jenkins , 307 S.W.3d 854, 857 (Tex. App.—Fort Worth 2010, pet. denied). The plaintiff has the burden of alleging facts that affirmatively establish the trial court's subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993) ; Eden Cooper, LP v. City of Arlington , No. 02–11–00439–CV, 2012 WL 2428481, at *3 (Tex. App.–Fort Worth June 28, 2012, no pet.) (mem. op.). We construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. Miranda , 133 S.W.3d at 226. Whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is a question of law. Id. ; Jenkins , 307 S.W.3d at 857.

If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Miranda , 133 S.W.3d at 227 ; Jenkins , 307 S.W.3d at 857. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder. Miranda , 133 S.W.3d at 227–28 ; Jenkins , 307 S.W.3d at 857. But if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda , 133 S.W.3d at 228 ; Jenkins , 307 S.W.3d at 857. This standard generally mirrors that of a traditional summary judgment. Miranda , 133 S.W.3d at 228 ; Jenkins , 307 S.W.3d at 857 ; see Tex. R. Civ. P. 166a(c).

Waiver of Immunity Under TTCA

Generally, a governmental unit enjoys immunity from lawsuits for damages. See City of Dallas v. Reed , 258 S.W.3d 620, 622 (Tex. 2008) ; City of Haltom City v. Aurell , 380 S.W.3d 839, 844 (Tex. App.–Fort Worth 2012, no pet.). An assertion of governmental immunity to suit is a challenge of the trial court's jurisdiction. Harris Cty. Hosp. Dist. v. Tomball Reg'l Hosp. , 283 S.W.3d 838, 842 (Tex. 2009) ; State v. Holland , 221 S.W.3d 639, 642 (Tex. 2007).

The legislature has provided a narrow waiver of immunity in the TTCA. Reed , 258 S.W.3d at 622 ; Haltom City , 380 S.W.3d at 844. A cause of action must initially meet the requirements set forth in section 101.021 of the TTCA to come within its waiver of governmental immunity. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011) ; Wise Reg'l Health Sys. v. Brittain , 268 S.W.3d 799, 805 (Tex. App.–Fort Worth 2008, no pet.). Under section 101.021, governmental units are liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). "Liability for premises defects is implied under section 101.021(2) because a premises defect arises from a condition existing on real property." Haltom City , 380 S.W.3d at 845 (quoting Perez v. City of Dallas , 180 S.W.3d 906, 910 (Tex. App.–Dallas 2005, no pet.) ).

But even if a plaintiff has pleaded claims for which immunity is waived under section 101.021, the TTCA nevertheless contains specific exemptions from that waiver. Univ. of Tex. at San Antonio v. Trevino , 153 S.W.3d 58, 61 (Tex. App.–San Antonio 2002, no pet.). Section 101.056 of the TTCA exempts from section 101.021's waiver of immunity a "governmental unit's decision not to perform an act[,] or ... 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." Tex. Civ. Prac. & Rem. Code Ann. § 101.056(2) (West 2011); Brazoria Cty. v. Van Gelder , 304 S.W.3d 447, 453 (Tex. App.–Houston [14th Dist.] 2009, pet. denied). Whether a governmental activity is discretionary for TTCA purposes is a question of law. State v. San Miguel , 2 S.W.3d 249, 251 (Tex. 1999).

"An act is discretionary if it requires exercising judgment and [if] the law does not mandate performing the act with such precision that nothing is left to discretion or judgment." State v. Rodriguez , 985 S.W.2d 83, 85 (Tex. 1999), overruled on other grounds by Denton Cty. v. Beynon , 283 S.W.3d 329, 331 n.11 (Tex. 2009). The supreme court has articulated two tests for determining whether conduct by a governmental entity involves a discretionary function: the first test distinguishes between policy-level decisions, for which immunity exists, and operational-level decisions, for which there is no immunity; the second distinguishes between the design of public works, for which there is immunity, and their maintenance, for which there is no immunity. Stephen F. Austin State Univ. v. Flynn , 228 S.W.3d 653, 657 (Tex. 2007). Operational or maintenance level decisions are those involved in carrying out a policy, consisting of ministerial acts that require obedience to orders; by contrast, policy decisions are those taken at the planning level that constitute the execution of or the actual making of those policy decisions. Tex. Dep't of Transp. v. Hathorn , No. 03–11–00011–CV, 2012 WL 2989235, at *6–7 (Tex. App.–Austin July 19, 2012, no pet.) (mem. op.). And because "the ‘[d]esign of any public work, such as a roadway, is a discretionary function involving many policy decisions, ... the governmental entity responsible may not be sued for such decisions.’ "¹ Tex. Dep't of Transp. v. Perches , 388 S.W.3d 652, 655 (Tex. 2012) (quoting Rodriguez , 985 S.W.2d at 85 ); Brazoria Cty. , 304 S.W.3d at 454. Additionally, a court should not second-guess a governmental unit's decision about the type of marker or safety device that is the most appropriate. San Miguel , 2 S.W.3d at 251.

Because TRWD's first contention in the trial court and here is that even if its immunity from the Johnsons' claims is initially waived under section 101.021, it would still be...