Fort Worth Court of Appeals held plaintiffs’ pleadings defective in flood/drowning case but remanded to allow plaintiffs to replead
City of Fort Worth v. Soledad Alvarez, et al. 02-20-00408-CV (Tex. App. – Fort Worth, February 10, 2022)
This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Fort Worth Court of Appeals agreed jurisdiction was not pled or presented but remanded for an opportunity to cure the pleading.
Romero was traveling in a vehicle with her daughter when floodwaters due to rain swept the vehicle into an alleged rain-filled excavation on property owned by Whiz-Q that was purported to have improper drainage due to a defective excavation. Both occupants drowned. The family sued Whiz-Q, the City and TxDOT. The City filed a plea to the jurisdiction claiming that its immunity was not waived because it did not own, occupy, or control “the property where this incident occurred” or the access road Romero was on. The plea was denied, and the City appealed.
Plaintiffs argued their pleadings incorporated by implication that the flood waters on the access road constituted a defective condition, but the City asserts the pleadings only mention defective excavation. The court held the pleadings must be read as written, which does not include the flood waters as a defective condition. The City next argued that it did not have a duty to make the premises safe because it did not create the dangerous condition or agree to make safe a known, dangerous condition. However, a premises-liability defendant may be held liable for a dangerous condition on real property if it created the condition or it “assum[ed] control over and responsibility for the premises,” even if it did not own or physically occupy the property. “The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.” While the City has exclusive control over its roadways, it entered into an agreement with TxDOT to maintain the access road. The City’s jurisdictional evidence shows that, at the time of the accident, the City did not possess—that is it did not own, occupy, or control—the property or the defective excavation on the property. Whiz-Q owns and operates its business on the property. The court concluded that at the time of the accident, either Whiz-Q or TxDOT owned or maintained the property, not the City. The pleadings are therefore defective. However, the court noted a premise defect (as opposed to a special defect) could still be potentially raised in the pleadings under the agreement with TxDOT; at least the City failed to negate all conceivable avenues under the agreement. As a result, the suit was remanded to allow the Plaintiffs to replead under a premise defect theory only.
If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Kerr, and Justice Womack. Memorandum Opinion by Justice Kerr
