                         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

                                      ----------

              CONCURRING AND DISSENTING OPINION

                                      ----------

      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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