COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00043-CV
TARRANT REGIONAL WATER APPELLANT
DISTRICT
V.
RICHARD JOHNSON AND APPELLEES
SHARKARA JOHNSON,
INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVES
OF THE ESTATE OF BRANDY
JOHNSON
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 048-274121-14
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CONCURRING AND DISSENTING OPINION
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Under the Texas Tort Claims Act, a governmental unit is liable for
“personal injury and death so caused by a condition or use of . . . 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 (West
2011); see State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006). In premises-
defect cases, the governmental unit owes the duty of care “that a private person
owes to a licensee on private property.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.022(a) (West 2011). A licensee must prove that: (1) a condition of the
premises created an unreasonable risk of harm to the licensee; (2) the owner
actually knew of the condition; (3) the licensee did not actually know of the
condition; (4) the owner failed to exercise ordinary care to protect the licensee
from danger; and (5) the owner’s failure was a proximate cause of injury to the
licensee. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,
237 (Tex. 1992) (op. on reh’g); see also Sampson v. Univ. of Tex. at Austin, 500
S.W.3d 380, 391 (Tex. 2016) (citing Payne, 838 S.W.2d at 237).
No one disputes that TRWD knew of the water flow rate, the slippery
chute, and the scour hole, and there is some evidence in the record that TRWD
knew about the boil effect. There is at least some evidence in this record that
Johnson did not know of the alleged danger. In discharging its duty to exercise
ordinary care to protect Johnson from the dangers alleged, TRWD must have
either warned of the dangerous condition or made such dangerous condition
reasonably safe. The Johnsons argue that the nebulus warning, “SAFETY
FIRST PLEASE WATCH YOUR CHILDREN,” is tantamount to no warning at all
as pertaining to a deceptively fast water flow rate, a chute designed to be
slippery, and a scour hole and boil effect that could not be detected with the
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naked eye. On these pleadings and with this evidence, I would hold that the trial
court did not err by denying TRWD’s plea to the jurisdiction as to complaints
regarding these four conditions. To the extent that the majority does not so hold,
I respectfully dissent.
I concur with the majority’s conclusion that the Johnsons “have not alleged
or shown a viable claim” under either a misuse of personal property theory or a
special defect theory, and I would sustain TRWD’s issue in part as to these two
claims. Otherwise, I would overrule the remainder of TRWD’s sole issue on
appeal.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
DELIVERED: December 30, 2016
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