Death from slip on kayak cut in dam not actionable under TTCA, but failure to maintain scour hole is says Fort Worth Court of Appeals

Tarrant Regional Water District v. Richard Johnson and Sharkara Johnson, 02-16-00043-CV (Tex. App— Fort Worth, December 30, 2016)

This is an interlocutory appeal in a Texas Tort Claims Act (“TTCA”) case where the Fort Worth Court of Appeals affirmed-in-part and reversed-in-part the denial of the Tarrant Regional Water ‘s (“TRWD”) plea to the jurisdiction. This is a 32-page opinion plus the dissent.

Brandy Johnson drowned in the Trinity River after attempting to walk across Trinity Park Dam No. 2 (“Dam No. 2”) in Fort Worth, which had been redesigned and reconstructed in 2002.   Plaintiffs alleged the kayak chutes cut into the middle of the dam allegedly allowed water to flow unregulated and up to 2,700 cubic feet per second, which constitutes a Class II+ whitewater rapid.  The chute was designed to be slippery to allow for kayak travel.  Additionally, the materials partially filling a scour hole had been washed away, making the hole dangerous to anyone who fell in. According to the Johnsons, Brandy drowned when she fell from the kayak chute into the scour hole, which was not visible to Brandy and had become deeper than designed.  The Johnsons further detailed three previous drownings and two near drownings at the same site, all involving people falling off the dam. The chute was not designed as a walkway, but these events made TRWD aware people were using it as such. The only warning sign present stated “Safety First Please Watch Your Children.”   No additional warning signs were added to the dam after the prior incidents.  The Plaintiffs alleged the dangerous condition was created by “altering the natural flow of the Clear Fork of the Trinity River by diverting the river through a series of artificial man-made dams and kayak chutes,” creating “a smooth looking yet powerful and deceptively dangerous current through the kayak chute.” The Plaintiffs further allege the TRWD negligently implemented policy by not filling in the scour hole.  The family sued TRWD under the TTCA asserting a special and/or premise defect on the dam. It also asserted a tangible personal property claim. TRWD filed a plea to the jurisdiction which the trial court denied. TRWD appealed.

After a detailed factual analysis, the court first held the death is a result of the chute’s intentional design and not a malfunction of the chute or TRWD’s failure to maintain it. The entire design of the dam indicates an intentional design to bring people down to the river to fish and not to parade them across the dam.  No waiver of immunity exists for discretionary acts such as design elements. Further, the complaint about the warning signs is a complaint about the decision of whether or not to install safety features, which is likewise barred. The Court held the Plaintiffs did not allege a special defect, only a premise defect. Further, they did not allege the negligent use of personal property; this was a premise defect claim only.  However, with regards to the scour hole, the evidence showed the hole was deeper than it was ever designed to be and TRWD was aware of the depth due to a bathymetric survey. The primary maintenance for the dam is “debris removal after storms [and] flow events.” Thus, the complaints about the deepening scour hole and possible related boil effect are not complaints about the original design, but rather the failure to maintain the original design.  The complaint alleged it was a dangerous condition of which TRWD had actual knowledge, so the plea was properly denied as to that claim.

The dissent disagreed with the majority’s holding on the premise defect claim regarding the kayak cut, specifically that there still exists a duty to warn and the “Safety First Please Watch Your Children” sign comes nowhere close. As a result, she would not have reversed any portion of the trial court’s order denying the plea.

If you would like to read this opinion click here. The panel includes Chief Justice Livingston, Justice Dauphinot and Justice Sudderth. Chief Justice Livingston delivered the opinion of the court. To see the concurring and dissenting opinion delivered by Justice Sudderth click here. Attorney for the appellant: Joel E. Geary. Attorney for the Appellees: Jamshyd (Jim) Zadeh