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Texas Parents Bring a Wrongful Death Case After Daughter Drowns

damIn Tarrant Regional Water District v. Johnson, a Texas Court of Appeals addressed a case in which the parents’ 19-year-old daughter drowned in the Trinity River while trying to walk across Trinity Park Dam to get to her job interview. The dam had a kayak chute in the middle, through which the river passed. The parents sued the Tarrant Regional Water District after her death because it operates the kayak chutes and other structures on the river where she drowned.

They brought claims under the Texas Tort Claims Act, claiming that she’d been killed due to a premises defect or a special defect. They also claimed the District was liable under the Texas Tort Claims Act for negligence because its employee had used personal property or provided their daughter with inadequate personal property, and the District was acting either with malicious intent or with gross negligence. They sued for wrongful death and survival causes of action.

The District filed a plea to the jurisdiction, claiming its sovereign immunity hadn’t been waived under the Texas Tort Claims Act because (1) the parents didn’t specify the personal property misused, (2) the premises were not a special defect as a matter of law, and (3) even if the parents alleged a premises defect for which the District’s immunity was waived, its decisions about the design of the dam and its safety features, including warnings, were discretionary. They also argued that the parents hadn’t identified the defect that created an unreasonable hazard, and even if they did, there was no evidence it caused their daughter’s death. They also argued that they had provided warnings, and the kayak chute was an open and obvious danger. The plea to the jurisdiction was denied.

The appellate court explained that usually governmental entities are immune from lawsuits for damages. There is a narrow waiver of immunity, however, under Tex. Civ. Prac. & Rem. Code Ann. § 101.021 for a personal injury or death caused by a use or condition of property if the government entity would be liable under Texas law if it were a private person. Even when a plaintiff pleads claims for which there are waivers, there are also exemptions. Under Section 101.056, there is an exemption for a government entity’s decision not to act or decide when the performance would be discretionary. An act is considered a matter of discretion if it requires someone to exercise judgment, and the law doesn’t precisely mandate the performance of the act.

The first test for determining whether the government’s actions involve a discretionary function involves asking whether a policy-level decision is involved, for which there is immunity. The second test distinguishes between the design of public works, for which there is immunity, and their maintenance, for which there isn’t immunity. In this case, the court reasoned there had been several prior drownings with no additional warning signs added, and the District was aware of the danger.

The court reasoned that the aspects of the kayak chute the plaintiffs cited were intentional results of the chute’s design, rather than a maintenance failure. Similarly, the couple’s complaint about the warning signs was a complaint about whether to install safety features. It held that these complaints were about discretionary design, for which there was no waiver of immunity. The court held the claims were barred by section 101.056. However, it also found that the plaintiffs’ complaints about the deepening of the scour hole and boil effect weren’t related to design and were therefore not subject to the discretionary acts exception. The District had not argued these were open and obvious dangers in the lower court, and thus it couldn’t raise this issue on appeal.

If a loved one dies on government property, the experienced San Antonio premises liability attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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