COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00197-CV
CITY OF HALTOM CITY APPELLANT
V.
BRIAN AURELL, INDIVIDUALLY APPELLEES
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
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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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
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2012).
2
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
2
Whites Branch Creek enters the City at its northeast corner, which is
about half of a mile north of Skyline, and the creek flows south.
3
The record indicates that runoff from other cities flowed into Haltom City
and caused the creek’s water level to rise.
3
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.
4
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.
5
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
4
Natasha concedes that the emergency responders did all that they could
to find Alexanderia.
5
According to City Engineer Tom Ice, who also serves as the City’s
floodplain administrator, a floodway is a channel on a water course “that must be
reserved in order to discharge a base flood without cumulatively increasing the
water surface elevation more than [a] designated height.” A floodplain is “land
susceptible to being inundated by water.” Chief Rhodes described the floodway
as “creek level.” A City ordinance describes a floodway as an “extremely
hazardous area due to the velocity of flood waters.”
6
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
6
The City owned a buried, underground sewer line that ran through part of
Skyline, but the sewer line did not affect the flow of surface water in Skyline. The
City also owned a part of the creek that was approximately half a mile
downstream from Skyline.
7
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 had not
7
Appellees eventually settled their claims against Skyline.
8
See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021–.022 (West 2011).
9
8 S.W.3d 634, 635–36 (Tex. 1999).
10
The City filed a motion for summary judgment rather than a plea to the
jurisdiction. That distinction does not affect our jurisdiction over the City’s
interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Tex.
Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (“[A]n
interlocutory appeal may be taken from a refusal to dismiss for want of
jurisdiction whether the jurisdictional argument is presented by plea to the
jurisdiction or some other vehicle, such as a motion for summary judgment.”).
8
received timely written or actual notice of them;11 it did not own, occupy, or
control the land where the flooding occurred; it did not breach any duty that might
have been owed to appellees when the flood occurred; it had performed
discretionary, legislative functions with respect to the enforcement (or lack
thereof) or ordinances affecting Skyline; and appellees had no evidence that the
City had assumed or breached a duty under Wilson. In appellees’ response to
the City’s motion, they dropped their special defect claim and proceeded only
upon their premises defect claim and their claim that the City had undertaken a
duty to protect Skyline’s residents from flooding. The trial court denied the City’s
motion, and the City brought this appeal.
Governmental Immunity Generally
Generally, a governmental unit, including a city, enjoys immunity from
lawsuits for damages. See City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.
2008); Corbin v. City of Keller, 1 S.W.3d 743, 746 & n.3 (Tex. App.—Fort Worth
1999, pet. denied); see also Pakdimounivong v. City of Arlington, 219 S.W.3d
401, 408–09 (Tex. App.—Fort Worth 2006, pet. denied) (“The doctrine of . . .
governmental immunity prohibits suits against a governmental entity unless there
has been a clear and unambiguous constitutional or statutory waiver of that
immunity.”). The legislature has provided a narrow waiver of immunity through
the Texas Tort Claims Act (TTCA). Reed, 258 S.W.3d at 622; Wise Reg’l Health
11
See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (West 2011).
9
Sys. v. Brittain, 268 S.W.3d 799, 804 (Tex. App.—Fort Worth 2008, no pet.);
Lipan Indep. Sch. Dist. v. Bigler, 187 S.W.3d 747, 751 (Tex. App.—Fort Worth
2006, pet. denied). A plaintiff’s mere reference to the TTCA, however, does not
confer jurisdiction on the trial court. Mogayzel v. Tex. Dep’t of Transp., 66
S.W.3d 459, 464 (Tex. App.—Fort Worth 2001, pet. denied).
“The requirements that a cause of action must meet in order to come
within the TTCA’s waiver of governmental immunity are found in section 101.021
of the Act . . . .” Brittain, 268 S.W.3d at 805; see Tex. Dep’t of Criminal Justice v.
Miller, 51 S.W.3d 583, 587 (Tex. 2001) (explaining that the “Tort Claims Act does
not waive . . . immunity for all negligence claims against governmental units”).
Under section 101.021, governmental units are liable for, as is relevant to this
case, “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(2).
An assertion of governmental immunity to suit is a challenge of the trial
court’s jurisdiction. Harris Cnty. 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). A
motion asserting such immunity involves a question of law that we review de
novo. Harris Cnty. Hosp. Dist., 283 S.W.3d at 842. The motion should not be
granted if a material fact issue exists concerning the trial court’s jurisdiction, but if
relevant, undisputed evidence negates jurisdiction, the motion must be granted.
10
Holland, 221 S.W.3d at 643. “It is the plaintiff’s burden to allege facts that
affirmatively establish the trial court’s subject matter jurisdiction.”
Pakdimounivong, 219 S.W.3d at 407.
The City’s Immunity from Appellees’ Premises Defect Claim
In part of the City’s second issue, it argues that it is immune from
appellees’ premises defect claim because even if appellees could establish that
the City had a duty with respect to the premises at Skyline, appellees did not
present evidence that the City breached that duty. Specifically, the City contends
that it is immune because the only facts that appellees cite to in an effort to show
a breach of duty by the City are “matters which are antecedent to the flood.”
“Liability for premises defects is implied under section 101.021(2) because
a premises defect arises from a condition existing on real property.” Perez v.
City of Dallas, 180 S.W.3d 906, 910 (Tex. App.—Dallas 2005, no pet.); see also
Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 592 (Tex.
App.—Fort Worth 2008, pet. denied) (“Premises liability is a special form of
negligence.”), cert. denied, 555 U.S. 1138 (2009). If a claim “arises from a
premise defect, the governmental unit owes to the claimant only the duty that a
private person owes to a licensee on private property, unless the claimant pays
for the use of the premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a);
see Reyes v. City of Laredo, 335 S.W.3d 605, 606 (Tex. 2010).
A party that has a duty with respect to a premise defect must “not injure a
licensee by willful, wanton, or grossly negligent conduct, and . . . the [party must]
11
use ordinary care to either warn a licensee of, or make reasonably safe, a
dangerous condition of which the owner is aware and the licensee is not.”
Corbin, 1 S.W.3d at 747. To prevail on a premises defect claim under the TTCA,
a plaintiff must prove that the condition of the premises created an unreasonable
risk of harm, that the governmental unit actually knew of the condition, that the
plaintiff did not actually know of the condition, that the governmental unit failed to
exercise ordinary care to protect the plaintiff from the dangerous condition, and
that the governmental unit’s failure to exercise ordinary care proximately caused
the plaintiff’s injury. Id. at 748; see State Dep’t of Highways & Pub. Transp. v.
Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh’g).
The City sought summary judgment on the basis that appellees had no
evidence that the “City failed to exercise ordinary care to protect [appellees] from
[a] dangerous condition.” After an adequate time for discovery, the party without
the burden of proof may, without presenting evidence, move for summary
judgment on the ground that there is no evidence to support an essential element
of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Timpte Indus.,
Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the
motion unless the nonmovant produces summary judgment evidence that raises
a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); Hamilton v. Wilson,
249 S.W.3d 425, 426 (Tex. 2008). When reviewing a no-evidence summary
judgment, we examine the entire record in the light most favorable to the
12
nonmovant, indulging every reasonable inference and resolving any doubts
against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
In the trial court and on appeal, the City has argued that for appellees to
establish a waiver of the City’s immunity for their premises defect claim, they
must show that the City failed to exercise ordinary care to protect appellees from
a dangerous condition and that in this case, the dangerous condition was the
flood that occurred in June 2007 and not some condition that existed at Skyline
before that date. For this argument, the City relies in part on the supreme court’s
decision in Reyes.
In Reyes, Maria Reyes sued the City of Laredo for the wrongful death of
her fourteen-year-old daughter, who drowned when the van in which she was
riding was swept away by water from an overflowing creek during a rainstorm.
335 S.W.3d at 606. The city asserted governmental immunity, and Reyes
argued, in part, that the city was liable under the TTCA for a premise defect. Id.
The supreme court explained that section 101.022(a) of the TTCA limits the
government’s duty to prevent injury from premise defects to those of which it has
actual knowledge. Id. at 606, 608. Under that standard and in light of the
evidence that had been presented, the court held that the city was immune from
Reyes’s suit, explaining that the city
knew that the crossing had flooded before during heavy rains, but
“the actual knowledge required for liability is of the dangerous
condition at the time of the accident, not merely of the possibility that
a dangerous condition can develop over time.”
13
. . . Reyes alleges in her petition that the accident occurred
between 3:00 and 3:30 a.m. . . . . Reyes argues that there is
evidence the City knew of the flooding as early as 12:30 a.m.
....
. . . [T]he most one can reasonably infer [from a homeowner
near the accident site who had called 911 several times about the
rising water] about what the City knew is that at 12:30 a.m., Chacon
Creek was rising, that “there was going to be a problem” at some
point, and that the danger persisted throughout the night. . . . [O]ne
cannot infer that the City ever actually knew Century Boulevard had
flooded, or more especially, that it was flooding when the accident
occurred. . . . Awareness of a potential problem is not actual
knowledge of an existing danger. Had there been testimony that a
911 operator received a credible report at about the time of the
accident that the crossing had actually flooded and was imperiling
motorists, there would have been evidence the City had actual
knowledge of a dangerous condition.
....
. . . The City of Laredo knew Chacon Creek might flood, but
the record does not show that it knew the creek had flooded at the
time of the accident. One can certainly argue that as a policy matter,
the government should be obliged to do more to protect against
dangerous conditions . . . . But that choice belongs to the
Legislature.
Id. at 608–09 (emphasis added) (citations omitted).
More than a decade before deciding Reyes, the supreme court considered
whether a city could be liable for injuries that a plaintiff received at a city-owned
recreation center by slipping on water while playing basketball. See City of San
Antonio v. Rodriguez, 931 S.W.2d 535, 536 (Tex. 1996). In explaining what the
relevant “dangerous condition” was in the suit, the court stated,
The water on the floor of the basketball court came from a
leak in the roof. The evidence is undisputed that the City knew of
14
the leaks in the roof, but the City disputed whether it knew of the
water on the floor at the time Rodriguez slipped. The court of
appeals held that the jury could have concluded that the leaky roof
was the dangerous condition in the premises, so that the City’s
knowledge of the dangerous condition was conclusively established.
We disagree. The leaky roof was not itself a dangerous condition; it
could only cause a dangerous condition. The City was not required
to warn of leaks in the roof or repair them; it was required only to
prevent the water that leaked through the roof from causing a
dangerous condition. On retrial, the jury should be instructed that
the allegedly dangerous condition was the water Rodriguez claims
was on the floor.
Id. at 536–37 (emphasis added) (citation omitted).
Between deciding Rodriguez and Reyes, the supreme court considered
whether the City of Dallas could be liable for a premise defect when a plaintiff
injured herself by tripping on a metal coverplate in an airport. See City of Dallas
v. Thompson, 210 S.W.3d 601, 602 (Tex. 2006). After stating that the city was
immune unless “there [was] evidence that it actually knew of the alleged
protruding coverplate,” the court determined that Thompson had presented no
such evidence. Id. at 602–03. The court explained,
The lobby area in which Thompson fell was well-traveled, and
passengers and City employees walked through the area daily,
including the day of the fall. In the hours prior to Thompson’s fall,
City employees had been in the area of the coverplate and probably
had walked over it, but no one reported or observed the coverplate
protruding from the floor. Accident logs reflected reports of tripping
where Thompson did, but none for at least three years. The City
knew that the coverplate could become loose and raise suddenly or
over time with ordinary wear and tear, and when it did, City
employees would tighten it. . . .
Thompson argues that the fact that the coverplate could
loosen and protrude over time made the coverplate itself, actually
protruding or not, a dangerous condition, and the City’s knowledge
15
of this periodic protrusion and the need for inspection and
maintenance satisfied the requirement of actual knowledge. But we
have held that the fact that materials . . . may become dangerous
does not itself create a dangerous condition, and the actual
knowledge required for liability is of the dangerous condition at the
time of the accident, not merely of the possibility that a dangerous
condition can develop over time. CMH Homes, Inc. v. Daenen, 15
S.W.3d 97, 100–02 (Tex. 2000) (holding that the defendant’s
knowledge that its stair and platform units periodically became
unstable was not evidence the units were unreasonably dangerous,
nor evidence of actual or constructive knowledge that a unit had
become dangerous when plaintiff was injured); see also State v.
Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002) (holding that evidence
that the State “knew the [traffic] signs had been repeatedly
vandalized does not indicate, either directly or by reasonable
inference, that [it] actually knew the signs were down before the
accident occurred”).
Thompson argues that the City’s knowledge of past reports of
tripping was sufficient. But the reports were all far too remote to
show that the City knew of a dangerous condition at the time
Thompson fell.
Id. at 603 (emphasis added).
Finally, four years ago, in a premises liability case with facts that are
analogous to the evidence in this appeal, the supreme court determined whether
the City of Corsicana could be liable for the drowning deaths of two children.
See City of Corsicana v. Stewart, 249 S.W.3d 412, 413 (Tex. 2008). In Stewart,
Stewart’s car stalled while he attempted to cross a low-water crossing. Id. When
he left his children in the car and went away to seek help, the water swept the car
away, and the children drowned. Id. The issue before the supreme court was
whether Stewart had presented evidence that created a genuine factual dispute
16
regarding the city’s actual knowledge of a dangerous condition. Id. The court
held that the he had not done so, stating,
The court of appeals held that in this case, actual knowledge
could be inferred from circumstantial evidence including:
(1) testimony . . . that the crossing “sometimes” flooded during heavy
rains, that the crossing was designed to allow water to flow over it
during heavy rains, and that the City closed the crossing on several
prior occasions due to flooding; (2) a study commissioned by the
City several years prior to the accident identifying the crossing as
vulnerable to future flooding; (3) a former City Council member’s
testimony that she informed City personnel of “dangerous
conditions” at the crossing during “light and heavy rains”; (4) the
National Weather Service’s issuance of four pertinent severe
weather warnings on the afternoon and night preceding the accident;
[and] (5) evidence that the Texas Department of Transportation
(TxDOT) closed a road one mile upstream from the crossing several
hours prior to the accident due to flooding . . . .
. . . In addition to the evidence relied on by the court of
appeals, Plaintiffs point to statements in the responding officer’s
report at the evidentiary hearing that the rain was intense as he
drove to assist Stewart, that local dispatch was inundated with calls
for help from stranded motorists and flooded homeowners, and that
many officers could not reach those in need due to high water.
Plaintiffs further argue that according to City procedures, City
officials are supposed to monitor areas likely to flood when flooding
is anticipated.
It is undisputed that no direct evidence was offered that the
City knew the crossing was flooded prior to the accident. Actual
knowledge requires knowledge that the dangerous condition existed
at the time of the accident, as opposed to constructive knowledge
which can be established by facts or inferences that a dangerous
condition could develop over time. Here, the Legislature required
that the City actually know that the crossing was flooded at the time
of the accident. . . .
. . . [T]he evidence presented in this case does not
reasonably support the inference that the City actually knew the
crossing was flooded on the night of the accident. Plaintiffs’
evidence indicates that there was inclement weather in the vicinity of
17
Corsicana on the night of the accident, that a road one mile
upstream was closed due to flooding, that the City knew the crossing
tended to flood during heavy rains, and that the City was aware of
heavy rains and flooding after the accident occurred. Neither this
evidence nor the inferences arising therefrom raise a fact question
on the City’s actual knowledge that a dangerous condition existed at
or near the crossing at the time of the accident.
Id. at 414–15 (emphasis added) (citation omitted).
The evident theme from these four supreme court decisions is that for a
governmental entity’s duty to arise in a premises liability case, the entity must
have actual knowledge of the existing danger that causes the plaintiff’s injury,
and mere knowledge of an antecedent condition that could have potentially
caused a dangerous condition at a later time is insufficient to waive the entity’s
immunity. Courts of appeals, including our own court, have applied this principle
in several cases. For example, in City of Austin v. Leggett, Trudy Leggett, whose
son had drowned after attempting to drive through a flooded street, sued the city
under a premises liability theory, alleging that the city had negligently maintained
or had negligently designed a stormwater detention pond. 257 S.W.3d 456, 460
(Tex. App.—Austin 2008, pet. denied). Leggett argued that the “dangerous
condition” in the case was the pond (and a defective drainage grate) rather than
the flooding itself. Id. at 469. The Austin Court of Appeals disagreed, stating that
the “relevant ‘dangerous condition’ for purposes of premises liability [was] not the
condition of the pond or grate, but the flooding in the location where Nathan
drowned.” Id. at 470. Citing Rodriguez, among other cases, the court explained,
18
The supreme court has repeatedly held that the relevant
unreasonably dangerous condition in a premise liability case is
generally the condition at the time and place injury occurs, not some
antecedent condition or situation that helps create a dangerous
condition.
....
. . . [W]e agree with the City that the unreasonably dangerous
condition that is the proper focus of Leggett’s premises claim is the
flooding in the intersection where Nathan drowned, not the allegedly
defective grate or other antecedent condition related to Pond 342
that Leggett claims contributed to the flooding. In other words, any
duty of the City here could arise only from its knowledge of the
flooding in the intersection, not merely its knowledge regarding the
grate or other condition of the pond condition, and such duty would
be to warn or make reasonably safe the flooded area rather than
anything in the pond. To the extent that Leggett purports to assert a
claim predicated upon an “unreasonably dangerous condition” in the
pond, as opposed to the flooding where Nathan drowned, we hold
that it is barred by governmental immunity.
Id. at 470–71 (citations omitted); see also City of San Antonio v. Tex. Mut. Ins.
Co., No. 04-07-00837-CV, 2009 WL 89700, at *3 (Tex. App.—San Antonio Jan.
14, 2009, no pet.) (mem. op.) (rendering a judgment dismissing claims against a
city because while “the City may have been warned that a . . . sinkhole was
likely, that did not constitute actual knowledge of the dangerous condition. The
law clearly requires the sinkhole to have developed and the City to be aware of
its existence.”); Biermeret v. Univ. of Tex. Sys., No. 02-06-00240-CV, 2007 WL
2285482, at *5–6 (Tex. App.—Fort Worth Aug. 9, 2007, pet. denied) (mem. op.)
(concluding that a university was immune from the plaintiff’s premises liability
claim because the plaintiff was required to present evidence of the university’s
knowledge “not just that the tile floor in the shower area was prone to become
19
wet and slick, but that on the date in question it actually had become wet and
slick prior to [the plaintiff’s] fall”).
Citing Reyes and Stewart, among other cases, the City contends that the
“relevant dangerous condition is the floodwater” and that the City’s knowledge
that Skyline “could be subject to flooding . . . is not the relevant inquiry.”
Appellees concede in their brief that under the rationale expressed in Reyes and
the other cases cited above, the City’s duty “to warn or make safe would not
arise until the [C]ity knows it is actually flooding.” Appellees acknowledge that
under Reyes, “it is not the threat or possibility of a flood that triggers a duty to
warn or make the flooded area safe. It is only the actual flooding . . . that triggers
the duty.”
Appellees have accurately stated the rule that the supreme court applied in
each of the Reyes-like cases. That rule creates a problem for appellees
because, as the City argues, the only facts that appellees cite to in an effort to
show that the City breached a duty are matters that occurred before the night of
the June 2007 flood. Specifically, in the section of appellees’ summary judgment
response in which they detailed the duties that they believed the City breached,
they stated that the City had failed to eliminate the flooding danger prior to June
2007 and that the City had failed to warn them that they were living in a floodway
prior to June 2007. Under the cases cited above, neither of these facts can
waive the City’s immunity under a premises defect theory because they occurred
when the City had knowledge of conditions in Skyline that could later create a
20
dangerous condition rather than occurring after the City had actual knowledge of
the relevant dangerous condition, which was the June 2007 flood. Appellees
conceded in the trial court that they were not complaining about any conduct by
the City on the night of the flood. They also stated in an interrogatory response
that they were not complaining about police officers, firemen, and other
emergency personnel who engaged in rescue efforts or responded to 911 calls.
Appellees do not contend that the City has misinterpreted the holding in
Reyes; rather, appellees contend that applying Reyes to the facts of this appeal
“simply makes no sense” because doing so would impose a more difficult duty
upon cities to respond to flooding itself rather than reducing the danger of future
flooding, and because when it is flooding, it is too late to take simple measures
like posting warning signs about homes being located within a floodplain, which
an entity has ample time to do when it is not flooding. Thus, appellees ask us to
“impose” duties upon the City that are greater than the duties required by Reyes
and the other cases cited above. But in the section of their brief where they
discuss Reyes, appellees have not cited any cases, from the supreme court or
otherwise, that distinguish the holdings in Reyes-like cases while imposing a
different rule. Also, any consideration of how much sense the supreme court’s
precedent makes to us is immaterial to our obligation to follow it. See Lubbock
Cnty., Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002)
(“It is not the function of a court of appeals to abrogate or modify established
21
precedent.”); Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5
(Tex. 2000) (“Adhering to precedent fosters efficiency, fairness, and legitimacy.”).
We determine that appellees did not present more than a scintilla of
evidence establishing an essential element of their premises defect claim: that
the City failed to exercise ordinary care after receiving actual knowledge of the
relevant dangerous condition, which was the June 2007 flood.12 See Reyes, 335
S.W.3d at 608–09; Stewart, 249 S.W.3d at 414–15; Corbin, 1 S.W.3d at 747.
Thus, we hold that the trial court erred by denying the City’s no-evidence motion
for summary judgment with respect to that claim. See Tex. R. Civ. P. 166a(i);
Hamilton, 249 S.W.3d at 426. We sustain the City’s second issue to that extent.
The City’s Immunity from Appellees’ Claim under Wilson
Appellees argue that the “acts and omissions of Haltom City about which
[they] complain arose from the negligent implementation of policies” concerning
warning the public about Skyline’s flooding danger, buying out properties in
Skyline that were in danger of flooding, and taking other actions “before the June
18, 2007 flood hit Skyline.” In other words, appellees argue that the City
undertook a responsibility to provide notice and protection to Skyline residents
concerning the potential for flooding there and that the City was negligent with
12
We recognize that the Reyes-like holdings make it difficult to satisfy the
elements of a premises liability claim in cases with facts similar to those in this
case. Nonetheless, we are obligated to follow the precedent of our supreme
court. See Smith v. Kelly-Moore Paint Co., Inc., 307 S.W.3d 829, 834 (Tex.
App.—Fort Worth 2010, no pet.).
22
respect to completing that undertaking. See Dukes, 252 S.W.3d at 598
(explaining that a negligent undertaking theory rests on a plaintiff’s allegations
that the defendant undertook to perform services that it knew or should have
known were necessary for the plaintiff’s protection and that the defendant failed
to exercise reasonable care in performing those services).13 Although the cases
cited below indicate that the City’s immunity could be waived by section 101.021
through a negligent undertaking theory under proper facts, appellees did not
present evidence that raises genuine issues of material fact on essential
elements of the theory.
Appellees argue that in Wilson,
the Texas Supreme Court held . . . that a government entity that
undertakes a duty to protect persons from the flooding of a river may
have liability if the river floods and causes death or injury . . . .
Haltom City undertook such a duty in this case, utterly failed in that
duty[,] and bears legal responsibility for [what] happened to the
Collins and Aurell families.
The City sought summary judgment on the grounds that there was no evidence
that the City owed or breached a duty under Wilson. The City argues that Wilson
does not apply to this case because, in part, in Wilson, there was evidence that
13
Appellees did not expressly raise a “negligent undertaking” claim in their
pleading, but they pled that the City was negligent under Wilson separately from
being negligent under a premises defect theory. The issue of the application of
Wilson, which concerns negligent undertaking principles, was litigated in the trial
court through the City’s summary judgment motion and through appellees’
response, in which appellees stated that their claim under Wilson was in “addition
to their traditional premises liability claim.” We will therefore analyze whether
negligent undertaking principles could have imposed a duty on the City beyond
the duty that typically arises in premises liability claims.
23
the plaintiffs relied on the defendant’s undertaking, while there is no similar
evidence of reliance here.
In Wilson, two brothers had drowned in a river. 8 S.W.3d at 635. The river
was owned by the State of Texas, but the brothers’ beneficiaries sued the Texas
Parks and Wildlife Department (the Department), which owned a park that
adjoined the river. Id. There was no evidence that the Department controlled the
river, but there was evidence that
the Department had the authority to restrict visitors’ use of the river
in certain areas, and that it had established a “flood early warning
system” in response to prior drowning deaths that had occurred on
the river. The Department put up signs around the park notifying
visitors that they should leave the river area immediately whenever
they heard the flood warning sirens, and put similar warnings on
maps and other park literature. The flood early warning system was
not functioning properly on the day of the accident and so the siren
did not go off to warn the Wilsons that the river was flooding.
....
. . . Plaintiffs allege that the Department was negligent, not in
preventing the river from flooding, but in failing to provide visitors
with adequate warning of the impending flood. Plaintiffs contend
that by putting up signs about its flood warning systems, the
Department encouraged visitors’ reliance that the park rangers were
monitoring the river and would provide adequate warning if
dangerous conditions developed.
Id. at 635–36 (emphasis added). With that factual background, the supreme
court remanded the case to the trial court under the rationale that a party may
owe a “duty of due care if it undertakes to make the premises safe for others.”
Id. at 635. As authority for this proposition, in footnote four of its opinion, the
24
supreme court quoted section 323 of the Restatement (Second) of Torts, which
states,
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as necessary
for the protection of the other’s person or things, is subject to liability
to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other’s reliance upon
the undertaking.
Restatement (Second) of Torts § 323 (1965); see Wilson, 8 S.W.3d at 635 n.4.
The supreme court’s citation and application of this section in Wilson makes
sense because, as the court explained, the plaintiffs had contended that the
Department’s signs encouraged the brothers’ reliance on the Department to warn
them of danger.14 See Wilson, 8 S.W.3d at 635 n.4, 636.
Along with citing section 323 of the Restatement in footnote four of its
opinion in Wilson, the supreme court also cited three of its cases, including
Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 117 (Tex. 1976). In Taylor, a
plaintiff had alleged that a mortgage company had gratuitously assumed
responsibility for insuring a house against fire by sending a letter stating that the
property was insured. Id. at 119. The court in that case quoted section 323 to
14
The City argues that Wilson is distinguishable from this case because
unlike the Department in Wilson, the City “never installed or required the type of
warning signs which were central to the possibility that a duty was assumed.”
25
hold that although there was no evidence that the mortgage company increased
a risk of harm, there was a disputed fact issue about whether the mortgage
company had assumed responsibility to insure the house because Taylor had
relied on the company’s letter. Id. at 119–20. The other two cases that the
supreme court cited in footnote four of Wilson, for support of its statement that a
defendant may owe a duty of care if it undertakes to make a premises safe for
others, were Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997) and City
of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986). In both of those cases, to
support statements that a defendant may owe a duty to make premises safe, the
supreme court cited a case from the Beaumont court of civil appeals in which that
court held that the plaintiff’s reliance on a defendant’s promise to remove slippery
algae created a duty upon the defendant to do so. See Old, 946 S.W.2d at 54
(citing Gundolf v. Massman-Johnson, 473 S.W.2d 70, 71–75 (Tex. Civ. App.—
Beaumont 1971), writ ref’d n.r.e., 484 S.W.2d 555 (Tex. 1972)); Page, 701
S.W.2d at 835 (citing Gundolf).
Many cases concerning premises defects and other types of negligence
support the supreme court’s statement in Wilson (through the court’s quotation of
section 323 of the Restatement) that for a duty to arise upon a defendant through
a voluntary undertaking, the defendant must have increased the plaintiff’s risk of
harm or the plaintiff must have relied on the defendant’s undertaking to make the
premises safe. For example, in Torrington Co. v. Stutzman, a case in which the
plaintiffs relied on an undertaking theory to argue that the defendant had a duty
26
with respect to the plaintiffs’ negligence and products liability claims, the supreme
court examined the propriety of a jury charge that omitted the increased-risk-of-
harm or reliance requirements. 46 S.W.3d 829, 837 (Tex. 2000).15 In holding
that the jury charge was erroneous, the court, relying in part on section 323,
stated,
The [broad-form negligence] question . . . allowed an affirmative
answer regardless of whether anyone relied upon Torrington’s
undertaking, or whether Torrington’s performance of its undertaking
increased the plaintiffs’ risk of harm. Because the question allowed
the jury to find Torrington liable even if the plaintiffs did not establish
the necessary factual predicates for a negligent undertaking duty, it
was erroneous. These essential elements of an undertaking claim
should be included in the instructions accompanying a broad-form
negligence question. Thus, the jury should have been instructed
that Torrington was negligent only if (1) Torrington undertook to
perform services that it knew or should have known were necessary
for the plaintiffs’ protection, (2) Torrington failed to exercise
reasonable care in performing those services, and either (3) the
Navy relied upon Torrington’s performance, or (4) Torrington’s
performance increased the plaintiffs’ risk of harm.
Id. at 838 (citations omitted). In a footnote, the supreme court added, “We have
never held that a person may be liable on an undertaking theory without
establishing reliance or increased risk of harm, and we decline to do so now.” Id.
at 838 n.7.
More than twenty years ago, the supreme court decided another case in
which the court, under the context of the TTCA, considered whether a defendant
15
The supreme court has equated the undertaking theory presented in
Stutzman with the one discussed in Wilson. See id. at 841; City of Waco v.
Kirwan, 298 S.W.3d 618, 627 (Tex. 2009) (citing Stutzman and Wilson together
while discussing negligent undertaking claims).
27
had voluntarily undertaken a duty with regard to a plaintiff’s negligence claim.
See Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395–96 (Tex.
1991). In Sbrusch, a drainage district obtained an easement across privately-
owned land to construct a drainage channel. Id. at 393. In exchange for
obtaining the easement, the district agreed to repair all damage to roads and
passageways resulting from the district’s use of the easement and from the
district’s traveling to and from the easement. Id. In March 1981, someone
informed the district that a bridge was unsafe, and one of the district’s employees
said that the district would “take care of it.” Id. at 394. In December of that year,
however, the bridge had not been repaired, and as Sbrusch attempted to cross
the bridge, it collapsed. Id. Sbrusch sued the district and Fort Bend County,
alleging negligence in failing to repair the bridge and in failing to warn the public
of its dangerous condition. Id. Although a jury awarded damages to Sbrusch,
the supreme court concluded that the district did not have a duty to Sbrusch to
repair the bridge, stating in part,
A future obligation based on past conduct will arise if the first
undertaking has increased a risk of harm, thereby requiring
additional action to protect third persons, or if the actor makes an
express promise that future assistance will be forthcoming, and the
injured party relies to his detriment on that promise and the past
conduct. In the present case, there is no evidence the District’s past
repairs increased the risk of harm to Sbrusch. Furthermore, while
certain statements were made . . . indicating that future assistance
would be forthcoming, there is no evidence that Sbrusch knew of this
“promise” . . . . Without any knowledge that the District had
undertaken to perform further repairs on this bridge, Sbrusch was
not entitled to detrimentally rely on the District to perform the needed
repair based solely on its past conduct.
28
Id. at 394, 397–98.
Like the supreme court, courts of appeals, including our own court, have
also noted that for a duty to arise on a voluntary undertaking theory, the plaintiff
must prove an increased risk of harm or reliance. See, e.g., Dukes, 252 S.W.3d
at 597–99 (citing section 323 and Stutzman in a premises liability case while
explaining that the plaintiff had failed to show reliance or an increased risk of
harm to establish that a duty arose as a result of a voluntary undertaking); Tex.
Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 284 (Tex. App.—
Houston [1st Dist.] 2006, no pet.); Johnson v. Brown Cnty., No. 11-00-00331-CV,
2001 WL 34373595, at *3 (Tex. App.—Eastland Sept. 6, 2001, no pet.) (not
designated for publication) (holding that a county had no duty to mow tall grass
and weeds that obscured a driver’s view to an intersection under a voluntary
undertaking theory because (1) the county’s mowing the grass and weeds on
prior occasions did not increase the plaintiff’s risk of harm, and (2) the plaintiff did
not show reliance).
Appellees argue that the City had a duty with respect to the premises at
Skyline under Wilson because, among other reasons,
the City was aware of many instances of prior flooding in Skyline;
the City sought to protect residents of Skyline from the flooding;
the City exercised control over the creeks and waterways within its city
limits; and
the City had the authority to restrict the placement of mobile homes in
flood-prone areas.
29
The summary judgment evidence establishes the following facts. In 1987,
the City enacted an ordinance to prevent flood damage. In 1990, the City issued
a memorandum stating that it had met with representatives of the Federal
Emergency Management Agency (FEMA) concerning the “Skyline Mobile Home
Park floodway issue.” The memo noted that Skyline had “[p]rivate streets, water,
and sanitary sewer lines,” and it stated, in part, “FEMA is of the opinion that it is
the [City’s] responsibility to notify property owners that they are in a
floodplain . . . .” The City also sent a letter to Skyline’s residents in 1990 that
stated in part,
Recently, public attention has been drawn to the location of a
portion of the Skyline Park being located in the Whites Branch Creek
floodway. We are writing to make you aware that your lot is located
in a floodway area as designated by [FEMA].
....
. . . A small portion of the mobile home park (+50 lots) is
located in what is called the “floodway” . . . .
. . . The mobile homes within the floodway of Skyline . . . have
flooded at least four times in the past – 1981, twice in 1988, and
twice in 1989.
Also in 1990, the City sent a letter to Skyline that asked Skyline to make existing
and future residents aware that they were living in a floodway; City Manager Tom
Muir testified in his deposition that he was not aware of any letters that the City
sent to Skyline residents after 1990 to notify them of the danger of flooding.
30
In 1991, Philip Patterson, the City’s floodplain administrator at that time,
wrote a letter to FEMA recognizing that Skyline had properties within the
floodway and floodplain but stating that those properties would be allowed to
remain there because they had been platted and sold prior to the completion of a
flood insurance rate map. The letter stated, however, that the City intended to
“initiate a proactive public notification process in the park regarding the floodway
issue.”
Years before the June 2007 flood, the City amended chapter thirty-eight of
its code of ordinances. The City expressed that some of the purposes of chapter
thirty-eight were to promote safety, protect human life and health, minimize public
and private losses caused by flood conditions, minimize the need for rescue and
relief efforts associated with flooding, and ensure that potential property buyers
would be notified that the property was in a flood area. According to Muir, FEMA
requires local governments to adopt flood prevention requirements for the
governments’ residents to be eligible for flood insurance through a national
program. Ice’s affidavit states that chapter thirty-eight was adopted in
accordance with the requirements for the national flood insurance program.
Some of the language in chapter thirty-eight had been contained in the
1987 ordinance. A section of chapter thirty-eight, titled “Flood Mitigation Plan,”
recites,
The city is impacted primarily by two streams that traverse the
city. Big Fossil Creek generally runs along the eastern part of the
city, while Little Fossil Creek traverses the southwest corner of the
31
city. Most significant flooding problems are associated with these
streams and their tributaries. . . .
One of the most significant flooding problems within the city
involves flooding of mobile homes in [Skyline] . . . on [Whites]
Branch, a tributary of Big Fossil Creek in the northern part of the city.
Another section stated,
Significant flooding in the city occurs primarily along the major
streams, specifically in two locations.
....
The second major area of flooding occurs along [Whites]
Branch, a tributary of Big Fossil Creek . . . in northern Haltom City.
A large portion of [Skyline] is inundated by the 100-year rain event.
A number of mobile homes are located within the floodplain, and
several are situated in the actual floodway. . . . Flooding has been
frequent enough in the mobile home park that fire department
personnel monitor the area when moderate to heavy rainfall occurs.
On several occasions, rescues have been necessary to remove
residents from the mobile homes as floodwaters rise. . . . These
rescues have been made in dump trucks, which are heavy enough
to avoid being swept away, as well as small boats. In addition to
endangering the citizens, the rescuers themselves are also
endangered by the high water.
Yet another section stated,
Because of the hazard in [Skyline] described previously to
property, citizens and emergency response personnel, and because
of the likelihood of recurring problems in this area, it is likely that the
most cost effective solution is for the city to purchase the lots subject
to flooding in order to completely eliminate the threat of flood
damage. Clearly, the hazard to the residents of [Skyline], as well as
to emergency response personnel, renders a “no action” alternative
unacceptable.
As part of the City’s desire to reduce the risks associated with flooding, the
City expressed within chapter thirty-eight that it would implement an “action plan”
that included developing a public education program to encourage citizens to buy
32
insurance and to notify them if they lived in a flood-prone area; applying for a
federal grant for the purchase of high-risk properties; and purchasing the high-
risk properties, including, potentially, “133 lots in the Skyline Mobile Home
Park . . . within the 100-year floodplain, of which 27 are in the regulatory
floodway.” Chapter thirty-eight also stated that no structure could be “located,
altered, or have its use changed without full compliance with the terms of th[e]
chapter”; that the city manager would be responsible for implementing chapter
thirty-eight’s provisions; that manufactured homes were required to be elevated
and anchored to resist flotation, collapse, and lateral movement; and that
manufactured homes could not be “placed in areas which ha[d] been identified as
regulatory floodways.”
In April 2002, FEMA approved the City’s flood mitigation plan and stated
that the City was eligible to apply for grants. But in more than five years between
then and June 2007, the City did not apply for such grants.
Chief Rhodes said that he had limited knowledge of the flood mitigation
plan, had not studied it, and was not involved in implementing it. During his
deposition, Chief Rhodes did not know who the City’s floodplain administrator
was, and he said that prior to the June 2007 Skyline flood, he had never
interacted with Muir about flooding issues in Skyline.
During Muir’s deposition, he expressed that he did not know who the City’s
floodplain administrator was or what a floodplain administrator did. He also
testified that he was “not real familiar” with the City’s flood mitigation plan
33
because he had not read it and that he did not know who should have
administered the plan. From 2002 until June 2007, Muir did not have meetings
with anyone in the City’s public works department concerning flood mitigation
issues. Muir recognized, however, that as the city manager, he was responsible
to see that the City’s ordinances were carried out, and he was therefore
responsible to assign someone to implement the flood mitigation plan. Muir
testified in his deposition that he first learned about the possibility of the City’s
purchasing lots in Skyline after the June 2007 flood.
David Fain, the City’s director of public works, oversees the City’s
floodplain administrator, but like Muir, during Fain’s deposition, he was unfamiliar
with the flood mitigation plan. Before June 2007, Fain had never been asked to
address the flooding issue in Skyline.
The City enacted a storm water fee in 2004 and therefore started adding a
charge to residents’ monthly water bills. In each of the 2004/2005, 2005/2006,
and 2006/2007 fiscal years, the fee generated more than $1 million in revenue.
Although the fee had been mentioned in chapter thirty-eight as a source of
funding for taking the actions described in the plan, including acquiring flood-
prone properties, the City did not use any of the money for buying out Skyline’s
properties; rather, the City spent the money to clean creeks, hire personnel to
maintain the City’s drainage infrastructure, and purchase equipment for drainage
maintenance.
34
In his deposition, Perry Bynum said that as the City’s emergency
management coordinator, he is responsible for seeking and managing grants.
Bynum testified in his deposition, however, that he had never read the flood
mitigation action plan. He also said that he did not know that the drainage utility
fee could be used for flood mitigation. Although Bynum knew before June 2007
of the possibility that mobile homes in Skyline could be bought out, the City did
not buy out any mobile homes before that time.16
In his affidavit, Muir said that although the City had recognized in chapter
thirty-eight that it could purchase flood-prone properties, he was not aware of a
legal requirement that would have compelled the City to do so. Muir also said
that he was not aware of any law that mandated any specific actions for flood
mitigation, including educating residents, making structural improvements, or
monitoring flooding. Chief Rhodes and Bynum said the same thing in their
affidavits. Bynum explained, “[T]here are no specific requirements or laws or
ordinances as to the schedule for when purchases of Skyline properties would be
carried out . . . .” He also noted that chapter thirty-eight, which expressed the
City’s concerns about flooding in Skyline, was a public record that could have
been accessed by the City’s residents. Finally, he explained, “Prior to the
16
After the June 2007 flood, the City obtained $1.47 million from FEMA. In
2009, with the FEMA grant and its own money, the City began purchasing
dozens of properties. The City was able to remove several homes in Skyline
from the floodway; as of February 22, 2011, the City had entered contracts on
sixty lots and had closed transactions on forty-six lots. Muir said in his deposition
that the City could have purchased the lots without the FEMA grant.
35
flood . . . in Skyline . . . , Haltom City . . . had not made any specific commitment
to take any specific steps to protect the residents of Skyline from flood events.”
Concerning the City’s flood mitigation plan, Fain said, “[A] plan is exactly that,
it’s . . . a guide to assist in making decisions. It doesn’t mean it’s . . . a plan that
has to be implemented, unless it’s directed by our decision maker to say you will
administer this plan verbatim.”
Months before the June 2007 flood, in the course of preparing a hazard
mitigation action plan, Bynum created a document that stated in part,
The probability for flooding to occur within Haltom City is high
due to the various [floodplains] that run through our city. Flash
flooding can and does occur regularly when there is a rain cell that is
either over our city or even [upstream] from our city. The creeks that
run through Haltom City can easily be overwhelmed from as little as
two to three inches of rain falling over a short period of time.
....
Residential housing in Haltom City has been exposed to
flooding and [its] after effects. The homes that are in and around the
floodplain are obviously at risk, but the majority of the time those
individuals have little or no way to flood proof their home.
....
Haltom City would propose to buy out and move over 200
manufactured homes to reduce the exposure to annual flooding of
this manufactured home community.
....
The benefit [of buying out the manufactured homes] would be
[immense] in numerous ways from reducing the possibility of loss of
life to not only the owner of the property but also to the first
responder who is risking life and limb to save the flood victim. . . .
I think we have seen the effects of not moving fast enough to
mitigate a hazard before there is a loss of life.
36
This evidence, along with the remaining summary judgment evidence
presented by appellees, might raise a genuine issue of material fact on two
elements of a negligent undertaking claim under Wilson: that the City undertook
a duty to perform services that it knew or should have known were necessary for
appellees’ protection and that the City failed to exercise reasonable care in
performing those services. See Wilson, 8 S.W.3d at 635 n.4; Dukes, 252 S.W.3d
at 598. The facts, however, do not comprise any evidence of the other “essential
elements” of a negligent undertaking claim: that appellees relied on the City’s
undertaking or that the City’s undertaking increased appellees’ risk of harm. See
Dukes, 252 S.W.3d at 603 (holding that the plaintiff’s attempt to impose a duty
through a voluntary undertaking theory “necessarily” failed because the plaintiff
did not present evidence creating a genuine issue of material fact on reliance or
increased harm); see also Stutzman, 46 S.W.3d at 838 (referring to reliance or
increased risk of harm as “essential elements” of an undertaking claim);
Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex. App.—
Corpus Christi 2002, no pet.) (explaining that an entity’s negligent
implementation of a policy does not itself waive immunity and that a plaintiff must
still establish a waiver of immunity under 101.021).
Appellees’ summary judgment evidence negates the possibility that they
relied on the City to address Skyline’s flooding issue; rather, it demonstrates that
they did not even know of a potential for flooding. In his affidavit, Aaron Collins
said,
37
When the June 18, 2007 flood hit, my wife and I did not know and
were not told by anyone that the mobile home we leased was
located in a floodway, a floodplain[,] or in a dangerous [flood prone]
area. We did not learn that information until after the . . . flood. On
June 18, 2007, we did not know and were not told by anyone that
that prior to the time we moved into Skyline, there had been
numerous significant floods in the area of the park where we lived,
and that during several of these past floods, Skyline residents had to
be rescued from floodwaters by emergency personnel.
Natasha Collins, Jacki Chantell Sexton-Aurell, and Brian Aurell made similar
statements. Appellees state in their brief that they were “unaware that the mobile
homes they leased were sitting in a floodway” because “they had never been so
warned by Haltom City or anyone else.”
Also, appellees did not present evidence of an increased risk of harm
caused by the City’s undertaking. While the summary judgment evidence may
raise a genuine issue of material fact on whether the City failed to exercise
reasonable care to lessen the known danger in Skyline, the evidence does not
raise a fact issue that the danger of flooding at Skyline generally, or the danger to
appellees specifically, was worse because of the City’s actions than if the City
had never recognized the danger and had never expressed an intention to
remedy it. The evidence does not establish, for example, that someone else
would have warned appellees about Skyline’s flooding danger or would have
abated that danger but for the City’s undertaking to do so.
For these reasons, based on the undisputed facts recited above, we
conclude that appellees failed to present evidence that creates a genuine issue
of material fact on essential elements of their negligent undertaking claim, under
38
Wilson, against the City, and that the trial court erred by denying the City’s no-
evidence motion for summary judgment with respect to that claim. See Tex. R.
Civ. P. 166a(i); Hamilton, 249 S.W.3d at 426; Stutzman, 46 S.W.3d at 838;
Wilson, 8 S.W.3d at 635 n.4, 636. We therefore also sustain that part of the
City’s second issue.17
Conclusion
Having sustained the City’s second issue, we reverse the trial court’s order
denying the City’s motion for summary judgment, and we render a judgment
dismissing appellees’ suit against the City with prejudice.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DAUPHINOT, J., filed a dissenting opinion.
DELIVERED: August 23, 2012
17
Because our decision to sustain the City’s second issue is dispositive, we
decline to address the City’s other four issues, in which they contend that the trial
court should have also granted summary judgment for other reasons. See Tex.
R. App. P. 47.1; Binzer v. Alvey, 359 S.W.3d 364, 367 (Tex. App.—Fort Worth
2012, pet. denied).
39
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00197-CV
CITY OF HALTOM CITY APPELLANT
V.
BRIAN AURELL, INDIVIDUALLY APPELLEES
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
----------
FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
----------
DISSENTING OPINION
----------
Appellant City of Haltom City argued below only that there was no waiver
of sovereign immunity. Because I believe the summary judgment evidence
supports the trial court’s decision and that justice would be best served in this
case by allowing Appellees a trial on the merits, I respectfully dissent from the
majority opinion reversing the sound decision of the trial court.
LEE ANN DAUPHINOT
JUSTICE
DELIVERED: August 23, 2012
2