                        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

                                    ----------

        FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
                  TRIAL COURT NO. 048-274121-14



                                    ----------

                                  OPINION

                                    ----------

     This is an interlocutory appeal from the denial of a plea to the jurisdiction

based on alleged governmental immunity. See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(8) (West Supp. 2016). In a single issue, appellant Tarrant

Regional Water District (TRWD) contends that the trial court erred by denying its

plea to the jurisdiction because the Texas Tort Claims Act (TTCA) does not

waive its immunity from suit on the claims brought by appellees Richard and

Sharkara Johnson. We reverse and render in part and affirm in part.

                                    Background

      On January 16, 2013, the Johnsons’ nineteen-year-old daughter Brandy

Johnson tragically drowned in the Trinity River after apparently attempting to

walk across Trinity Park Dam No. 2 (Dam No. 2) in Fort Worth on her way to a

job interview. That dam has a kayak chute in the middle through which the river

rapidly flows. After Brandy’s death, the Johnsons sued TRWD, which “owns,

operates[,] and maintains the systems of levees, sump areas, flood gate

structures, channel improvements, river bottoms, low water weirs, dams,

walkways[,] and kayak chutes on the Clear Fork” of the Trinity River in the area

where Brandy drowned. In their third amended petition, the Johnsons brought

claims under the TTCA alleging that the following conditions constituted either a

premises defect, a special defect, or both: “Trinity Park Dam No. 2, the kayak

chute on Trinity Park Dam No. 2, the levees, rock stairs and handicapped

accessible walkway leading to Trinity Park Dam No. 2, the Clear Fork of the

Trinity River, the river bottom of the Clear Fork of the Trinity River[,] and the large

scour hole located at the base of Trinity Park Dam No. 2” (collectively the

Premises).    They also alleged that (1) TRWD is liable under the TTCA for


                                          2
negligence because an employee had used or misused tangible personal

property or furnished Brandy with inadequate or defective tangible personal

property and (2) TRWD was either grossly negligent or acted with malicious

intent or bad faith. Finally, the Johnsons brought wrongful death and survival

causes of action.

       TRWD filed a plea to the jurisdiction alleging that its immunity had not

been waived under the TTCA for any of the Johnsons’ claims because (1) the

Johnsons did not identify any item of personal property allegedly used or

misused by an employee, (2) as a matter of law, the Premises are not a special

defect, and (3) even if the Johnsons alleged a premises defect for which its

immunity is waived, the TTCA reinstates that immunity because its decisions

regarding the design of the Premises and any related safety features, such as

warning signs, are discretionary. Alternatively, TRWD argued that if (3) above

does not apply, the Johnsons still cannot maintain a premises defect claim

because they (a) failed to identify a premises defect that created an

unreasonable risk of harm, (b) even if they alleged an actionable defect, there is

no evidence it caused Brandy’s death, (c) the kayak chute and water running

through it are an open and obvious danger, and (d) if TRWD had a duty to warn

Brandy, as a matter of law it did so adequately. The trial court denied the plea to

the jurisdiction.




                                        3
                                Standard of Review

      We review the trial court’s ruling on a plea to the jurisdiction under a

de novo standard of review.       Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004); City of Wichita Falls v. Jenkins, 307 S.W.3d 854,

857 (Tex. App.—Fort Worth 2010, pet. denied). The plaintiff has the burden of

alleging facts that affirmatively establish the trial court’s subject matter

jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993); Eden Cooper, LP v. City of Arlington, No. 02-11-00439-CV, 2012

WL 2428481, at *3 (Tex. App.—Fort Worth June 28, 2012, no pet.) (mem. op.).

We construe the pleadings liberally in favor of the plaintiff and look to the

pleader’s intent. Miranda, 133 S.W.3d at 226. Whether undisputed evidence of

jurisdictional facts establishes a trial court’s jurisdiction is a question of law. Id.;

Jenkins, 307 S.W.3d at 857.

      If a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, as the trial court is required to do.

Miranda, 133 S.W.3d at 227; Jenkins, 307 S.W.3d at 857.               If the evidence

creates a fact question regarding the jurisdictional issue, then the trial court

cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the

factfinder. Miranda, 133 S.W.3d at 227–28; Jenkins, 307 S.W.3d at 857. But if

the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter


                                           4
of law. Miranda, 133 S.W.3d at 228; Jenkins, 307 S.W.3d at 857. This standard

generally mirrors that of a traditional summary judgment. Miranda, 133 S.W.3d

at 228; Jenkins, 307 S.W.3d at 857; see Tex. R. Civ. P. 166a(c).

                       Waiver of Immunity Under TTCA

      Generally, a governmental unit enjoys immunity from lawsuits for

damages. See City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008); City of

Haltom City v. Aurell, 380 S.W.3d 839, 844 (Tex. App.––Fort Worth 2012, no

pet.). An assertion of governmental immunity to suit is a challenge of the trial

court’s jurisdiction. Harris Cty. 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).

      The legislature has provided a narrow waiver of immunity in the TTCA.

Reed, 258 S.W.3d at 622; Haltom City, 380 S.W.3d at 844. A cause of action

must initially meet the requirements set forth in section 101.021 of the TTCA to

come within its waiver of governmental immunity. Tex. Civ. Prac. & Rem. Code

Ann. § 101.021 (West 2011); Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799,

805 (Tex. App.––Fort Worth 2008, no pet.).              Under section 101.021,

governmental units are liable for “personal injury and death so caused by a

condition or use of tangible personal or 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). “Liability for premises defects is

implied under section 101.021(2) because a premises defect arises from a




                                        5
condition existing on real property.” Haltom City, 380 S.W.3d at 845 (quoting

Perez v. City of Dallas, 180 S.W.3d 906, 910 (Tex. App.––Dallas 2005, no pet.)).

      But even if a plaintiff has pleaded claims for which immunity is waived

under section 101.021, the TTCA nevertheless contains specific exemptions from

that waiver. Univ. of Tex. at San Antonio v. Trevino, 153 S.W.3d 58, 61 (Tex.

App.––San Antonio 2002, no pet.). Section 101.056 of the TTCA exempts from

section 101.021’s waiver of immunity a “governmental unit’s decision not to

perform an act[,] or . . . its failure to make a decision on the performance or

nonperformance of an act[,] if the law leaves the performance or nonperformance

of the act to the discretion of the governmental unit.” Tex. Civ. Prac. & Rem.

Code Ann. § 101.056(2) (West 2011); Brazoria Cty. v. Van Gelder, 304 S.W.3d

447, 453 (Tex. App.––Houston [14th Dist.] 2009, pet. denied).          Whether a

governmental activity is discretionary for TTCA purposes is a question of law.

State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999).

      “An act is discretionary if it requires exercising judgment and [if] the law

does not mandate performing the act with such precision that nothing is left to

discretion or judgment.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999),

overruled on other grounds by Denton Cty. v. Beynon, 283 S.W.3d 329, 331 n.11

(Tex. 2009).    The supreme court has articulated two tests for determining

whether conduct by a governmental entity involves a discretionary function: the

first test distinguishes between policy-level decisions, for which immunity exists,

and operational-level decisions, for which there is no immunity; the second


                                        6
distinguishes between the design of public works, for which there is immunity,

and their maintenance, for which there is no immunity. Stephen F. Austin State

Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007). Operational or maintenance

level decisions are those involved in carrying out a policy, consisting of

ministerial acts that require obedience to orders; by contrast, policy decisions are

those taken at the planning level that constitute the execution of or the actual

making of those policy decisions. Tex. Dep’t of Transp. v. Hathorn, No. 03-11-

00011-CV, 2012 WL 2989235, at *6–7 (Tex. App.––Austin July 19, 2012, no pet.)

(mem. op.). And because “the ‘[d]esign of any public work, such as a roadway, is

a discretionary function involving many policy decisions, . . . the governmental

entity responsible may not be sued for such decisions.’”1 Tex. Dep’t of Transp. v.

Perches, 388 S.W.3d 652, 655 (Tex. 2012) (quoting Rodriguez, 985 S.W.2d at

85); Brazoria Cty., 304 S.W.3d at 454. Additionally, a court should not second-

guess a governmental unit’s decision about the type of marker or safety device

that is the most appropriate. San Miguel, 2 S.W.3d at 251.

      Because TRWD’s first contention in the trial court and here is that even if

its immunity from the Johnsons’ claims is initially waived under section 101.021,

it would still be immune because of section 101.056’s applicability, we will first



      1
       Although many of the discretionary design cases relate to roadway
design, they are not limited to roadway design. See Univ. of Tex. v. Amezquita,
No. 03-06-00606-CV, 2009 WL 1563533, at *2 (Tex. App.––Austin June 4, 2009,
no pet.) (mem. op.).


                                         7
review whether the Johnsons’ claims relate solely to discretionary functions for

which TRWD’s immunity would not be waived under the TTCA.

        Specific Allegations in the Johnsons’ Third Amended Petition

      The Johnsons alleged in their live pleading that the kayak chute cut into

the middle of Dam No. 2, like the chutes in two of the other dams in the same

area of the Trinity River, “allow[s] for water to flow through at rates of at least up

to 2,700 cubic feet per second.” They also alleged that the chute is “made of an

exposed aggregate pea gravel concrete mix, is approximately 10 feet across[,]

and is smooth, slick and slippery, especially with water running through the

chute.” They further alleged that the chute in Dam No. 2 “creates a Class II+

whitewater rapid.”

      The petition also claimed that there is a “huge scour hole” at the base of

Dam No. 2 that “creates a channel bottom that was up to nine feet deeper than

expected or designed” and that in 2003, the scour hole “was partially but not

completely filled with loose materials and construction materials and the

materials were not sealed in place.” At some point, “[t]he loose materials were

washed out of the scour hole, likely in 2007 during some flooding and ‘high flow

velocity’ events [and were] . . . pushed far downstream and even created a small

artificial island downstream from” Dam No. 2.         According to the Johnsons,

Brandy drowned when she fell from the kayak chute into the scour hole, which

was not visible to Brandy and was “as large as it originally was when negligently

repaired in 2002.” The petition states, “The depth of the river at the downstream


                                          8
base of . . . Dam No. 2 is supposed to be three feet,” and alleges that if Brandy

had fallen into the river at that depth, she would have been able to stand up and

would not have drowned. The Johnsons also alleged that after Brandy’s death,

TRWD had approved plans to “fix the scour hole, seal the material being placed

in the scour hole[,] and return the river depth back to the original three foot

depth.”

         The Johnsons further detailed three previous drownings and two near

drownings at the same site, all involving people falling off the dam. They also

noted that allegations had been made in some of those cases that although the

dam had signs on it, those signs did not warn of any dangers. The Johnsons

alleged that no additional or better warning signs were added after these

incidents.    Additionally, the Johnsons alleged that a cyclist who successfully

saved Dania Martinez’s son, but who could not rescue Martinez, told CBS 11

news, “It looks completely harmless . . . but that little waterfall and then there’s a

little sinkhole. You’re pulled down and then you’re being pushed this way and

down. When I got to him, I had to reach down, he was starting to go under and

had been bobbing up and down.”           According to the cyclist, she had been

swimming “almost her entire life,” but she found it difficult to keep her head above

water.    The Johnsons further alleged that in March 2012, TRWD considered

placing new warning signs on Dam No. 2 in response to the three drownings and

at least one of the near drownings. While two designs were considered––one of

which showed an arrow through water and said “Beware Strong Currents” and


                                          9
the other of which showed the top of a person’s head and a waving arm over

water stating “STRONG CURRENT YOU COULD BE SWEPT AWAY FROM

SHORE AND COULD DROWN IF IN DOUBT DON’T GO OUT”––the final

approved design showed the top of a person in water, with a person standing in

front stating “SAFETY FIRST PLEASE WATCH YOUR CHILDREN.” According

to the Johnsons,

      This sign was created and designed by a public relations person.
      No safety studies occurred. No contact was made with the designer
      of the walkways to see if they could be made safer. No expert was
      consulted on making the artificially created condition safer. Nothing
      occurred except the placement of one poorly designed sign in which
      the word caution had been intentionally removed.

      In general, the Johnsons alleged that the “artificially created condition

created by” Dam No. 2, “the scour hole and the . . . slippery kayak chute,” and

the walkways, river, and channel bottoms were dangerous conditions and that

TRWD “did not have adequate safety and warnings signs” at the dam. According

to the Johnsons, TRWD was actually aware of these dangerous conditions,

including that the scour hole that was supposed to be three feet in depth was

actually eleven to twelve feet in depth.    Moreover, they allege TRWD was

actually aware “of the numerous drownings or near drownings” at Dam No. 2 and

that Dam No. 2 “had more drownings or near drownings than any of the other

twenty-three to twenty-five dams that TRWD oversees.” Finally, they contend

that TRWD was aware “that it was dangerous for the general public to walk

across [Dam No. 2] when there was water flowing through the kayak chute.”



                                       10
      The Johnsons contended that the defective condition of Dam No. 2 was

caused 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” and “re-creat[ing] a large scour hole”: “If the

large scour hole[,] which was created by the artificial diversion of the natural flow

of the water, had been properly repaired or maintained, Brandy . . . would have

been able to stand up in the Clear Fork of the Trinity River.” Furthermore, the

Johnsons claim that TRWD negligently implemented policy and negligently

maintained the Premises by not “filling in or repairing the large scour hole,” filling

it in improperly, or both, and by negligently constructing Dam No. 2 and the

surrounding area.    Finally, the Johnsons allege that TRWD was negligent in

failing to manufacture the more explicit warnings signs proposed and considered

by TRWD in 2012, before Brandy’s death, and in failing to “secure the area to

prohibit access to the unsafe conditions.”




                                         11
The Johnsons’ Complaints About the Parts of the Premises Other Than The
         Scour Hole and Resulting “Boil Effect” Relate Only to
                   Discretionary Design Decisions2

Relevant Facts

       The following evidence about the Premises was developed during the plea

to the jurisdiction pleading process. The United States Army Corps of Engineers

is jointly responsible with TRWD for regulating and maintaining flood control

along the Trinity River in Fort Worth. In the 1960s, the Corps channelized this

part of the river and strengthened existing levees to assist in flood control. Part

of the channelization included the establishing of a grade for the river bottom to

facilitate river flow. As a result of the river channelization project, several dams

were constructed by TRWD. Dam No. 2, the dam at issue here, included a

fishing pier on the west side; in the 1970s, TRWD designed and installed rock

stairs leading down to the river on Dam No. 2. In the 1980s, TRWD installed a

handicapped accessible sidewalk ramp from adjacent Trinity Park down to the

dam.

       According to TRWD’s Dam and Levee Safety Engineer, Louis Verreault,

the original dams in this location were vertical face dams. Over time, those types

       2
        TRWD contends in its reply brief that the Johnsons “narrowed” their
claims on appeal by responding with arguments only about the scour hole,
undertow and resulting boil effect, and the current through the kayak chute;
however, because the applicable standard of review requires us to consider
whether TRWD was entitled to a dismissal of the Johnsons’ pleaded claims, we
will consider TRWD’s preserved appellate arguments as to the Johnsons’ entire
petition in light of the appropriate standard of review. See Miranda, 133 S.W.3d
at 226–27.


                                        12
of dams will move sediment from the river channel bottom downstream in a

“scouring” effect due to the force of the water flowing over the dam and then

straight down toward the river bottom.

       In 2002 and 2003, TRWD redesigned and reconstructed several dams,

including Dam No. 2, for recreational purposes.        The design for Dam No. 2

included a kayak chute in the middle of it for use by recreational kayakers and

inner tubers. Construction began in 2003 and consisted of the removal of the

dams built in the 1960s and the rebuilding of new dams. According to Verreault,

the new dam, Dam No. 2, was “designed to retain water and to control erosion

and is not designed as a walkway.”

       Verreault’s job during the dam redesign was to ensure its structural

integrity.   As part of the design process for the kayak chute, TRWD had to

demonstrate to the Army Corps of Engineers that the chute would not impact the

overall flow of the river so as to comport with the Corps’ plan for flood prevention.

       The kayak chute in the middle of Dam No. 2 is a ten foot opening through

the center of the dam and consists of “running water running over a slippery

surface.” The kayak chute was intentionally designed to be slippery so as to

facilitate the movement of kayaks and small boats through it from one pool of the

river to the next. The bottom is made of exposed pea gravel that was chosen to

be “smooth and slick.” TRWD relied on the designer of the chute to make sure it

would be safe for kayakers. However, Verreault admitted that TRWD did not

take measures to ensure the safety of people walking across the kayak chute


                                         13
because it was not intended as a walkway. Verreault did not believe the dam

was unsafe, but he did agree that walking on it could be dangerous.

      Verreault estimated that the flow of the river on the day of Brandy’s death

was two to five hundred cubic feet per second. The velocity of the water running

through the chute, however, would have been faster than the overall flow of the

river because all of the water would be concentrated through that ten-foot

opening. Verreault estimated that the water moving across the chute on the day

of Brandy’s death was six inches deep, which, at the speed it was moving, could

cause someone to fall. On that day, the water flowing through the chute did not

reach across its entire ten foot width; according to Verreault’s testimony, “it

appears that there was very low flow through the center chute, because it’s all

contained within the center chute and doesn’t cover it from side to side, so my

assumption is that it’s at a lower flow.”

      When Dam No. 2 was installed, TRWD did not install warnings regarding

the danger of the water speed or flow in the chute, but it did embed signs in the

rock approaching the kayak chute on each side of the chute with a depiction of a

figure walking with a line through it. At the time of Brandy’s death, another set of

signs had been posted on either side of the kayak chute on Dam No. 2 that said,

“SAFETY FIRST PLEASE WATCH YOUR CHILDREN,” along with a picture of a

small figure in water with an arm above its head. According to Darrell Beason,

Director of Operations for TRWD, at the time, there had been drownings of

children or of people attempting to rescue children who had fallen in the river, so


                                            14
TRWD thought the reason that there had been several such incidents was

related more to unsupervised children than an issue with the adequacy of

warnings against walking through the kayak chute.

         After Brandy’s death, TRWD posted warnings regarding the strong current

on social media and in the Fort Worth Star-Telegram. TRWD also placed new

signs on Dam No. 2 after Brandy’s death; since that time until at least August 20,

2015, the date of Beason’s deposition, there had not been any drownings at Dam

No. 2. In August 2015, the TRWD Board approved widening the chute to twenty-

five feet; TRWD also planned to place rubber baffles around the chute to

discourage walking across the chute.

         However, TRWD was aware as early as 2003 that people were walking “all

over” Dam No. 2.          The stairs down to the dam were installed to facilitate

fishermen and people launching kayaks and inner tubes: the stairs are for the

purpose of “bring[ing] people down [to the river] to recreate . . . [and] contact . . .

the river.” Likewise, the fishing pier was already existing in 2002; as part of the

redesign of Dam No. 2, TRWD connected the stairs and dam up to the pier.3

         Each year, TRWD visually inspects the dams, including Dam No. 2, with a

Corps engineer to see if they have been damaged or if any repairs are

necessary. As part of TRWD’s annual visual inspection of the dams, it checks

the warning signs to make sure they are not damaged or obscured by debris.

         3
             Neither of these points of access or use required walking across the
chute.


                                          15
Analysis

      All of the evidence supports the conclusion that the condition of the kayak

chute about which the Johnsons complain––that its surface was smooth and

slippery and that a dangerous, swift current ran through it––is an intentional

result of the chute’s design and not a malfunction of the chute or TRWD’s failure

to maintain it. The evidence shows that the chute was designed to be ten feet

wide and have a slippery surface on the bottom over which running water would

flow at a velocity sufficient to move kayaks and small boats across it.

Additionally, the evidence shows that the rest of the Premises other than the

scour hole and alleged related boil effect––the stairs, pier, and parts of Dam

No. 2 other than the kayak chute––were constructed in accordance with the

design of intentionally bringing people down to the river to fish or launch boats.

      This evidence shows that the allegations regarding the condition of Dam

No. 2, including the kayak chute and the remainder of the Premises other than

the scour hole and boil effect are complaints about the design of Dam No. 2

rather than the maintenance of Dam No. 2 contrary to the original design. See

Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 465–66 (Tex. App.––Fort

Worth 2001, pet. denied) (“[A]lthough Appellants pled that Appellees had notice

of I–20’s dangerous condition and failed to correct it within a reasonable time,

they have not alleged that the dangerous condition came about through a

negligently implemented policy or plan.       Rather, Appellants complain of the

condition of I–20 as it was originally designed.”). Accordingly, the Johnsons’


                                         16
claims about those conditions are barred under section 101.056 of the TTCA.

See City of Austin v. Frame, No. 03-15-00292-CV, 2016 WL 3068379, at *5 (Tex.

App.––Austin May 27, 2016, no pet.) (mem. op.) (holding that failure to construct

guard rail or barrier separating road from trail to protect users of trail from road

hazards required “the City to balance social and economic concerns and devise

a plan to address each specific identified hazard” and that the complaint that the

City should have addressed a specific hazard by erecting a guardrail or barrier “is

ultimately a complaint about how the City chose to allocate its resources,” which

is “exactly the sort of policy formulation and balancing of interests that the

discretionary-powers exception is meant to protect”); Hathorn, 2012 WL

2989235, at *8 (“Even taking the evidence in the light most favorable to Hathorn,

the non-movant, it is clear that the negligence alleged by Hathorn arose not from

faulty implementation of the plans, but from TxDOT’s policy decision about the

roadway’s design.”).

      Likewise, the Johnsons’ complaint about the adequacy of the warning

signs––their placement, content, or both4––is a complaint about the decision of

whether or not to install safety features, which is barred by section 101.056. See

Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002); Frame, 2016

WL 3068379, at *6 (holding that complaint about City’s failure to install protective


      4
      This includes the Johnsons’ complaint that TRWD negligently
implemented a policy to add new signs because it did not approve and
implement an initial design for signs with a clearer warning.


                                        17
barrier or guardrail was “in essence, a complaint about the City’s alleged decision

not to modify the existing design of its public works” and complaint of failure to

change a design to make it safer was nevertheless a complaint related to

design). A complaint about the adequacy and efficacy of safety devices such as

warning signs is a complaint about discretionary design, for which immunity is not

waived.   San Miguel, 2 S.W.3d at 251 (“A court should not second-guess a

governmental unit’s decision about the type of marker or safety device that is the

most appropriate.”); Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89, 100–01

(Tex. App.––Houston [14th Dist.] 2010, no pet.); cf. Tex. Dept. of Transp. v.

Bederka, 36 S.W.3d 266, 271 (Tex. App.––Beaumont 2001, no pet.) (holding that

the “Department enjoys immunity from suit regarding its decision to place a

particular traffic control signal, even if the signal fails to make the premises safe

[and that the] selection of the device employed is not its condition” (emphasis

added)), disapproved of on other grounds by City of Grapevine v. Sipes, 195

S.W.3d 689, 695 n.5 (Tex. 2006). Accordingly, we conclude and hold that the

Johnsons’ claims regarding the signs’ allegedly inadequate warnings as creating

an unsafe condition are barred by section 101.056.

      The Johnsons contend that a different result is compelled by virtue of the

reasoning in Texas State University-San Marcos v. Bonnin, No. 03-07-00593-CV,

2010 WL 4367013 (Tex. App.––Austin Nov. 5, 2010, no pet.) (mem. op.). In that

case, a young man died after jumping from the balcony of the restaurant where

he worked into the waterway at Spring Lake Dam on the university’s campus. Id.


                                         18
at *1. His parents sued the university, pleading that his death was the result of a

turbulent undertow that pulled him into underwater caverns beneath the

restaurant. Id. According to the Bonnins’ petition, the university had created an

unreasonably dangerous condition as a result of making repairs to the waterway

at the location where their son died and failing to block access to, or warn others

about, the underwater caverns.       Id.   The Austin Court of Appeals held that

section 101.056 barred the Bonnins’ claims regarding the creation of the

condition and failure to warn, holding that those allegations were not based on

the argument that the university had failed to maintain the waterway after the

repairs were made but, rather, they attributed the Bonnins’ son’s death to “the

initial design decisions regarding the repairs.” Id. at *2.

      However, the court went on to address a separate claim in the Bonnins’

petition: that under the Recreational Use statute, the University had allowed a

defective condition on the property––a dangerous undertow existing apart from,

and not created by, the design of the underwater caverns––when it “knew . . . or

should have known [that] the property would be used for recreational purposes.”

Id. at *3; see Tex. Civ. Prac. & Rem. Code Ann. § 75.001–.007 (West 2011 &

Supp. 2016) (commonly known as the Recreational Use statute).                  The

Recreational Use statute neither creates liability nor waives sovereign immunity;

instead, it further “limits the liability of a governmental unit under circumstances

in which the governmental unit would be liable under” the TTCA. Suarez v. City

of Texas City, 465 S.W.3d 623, 632 (Tex. 2015) (quoting in part and citing Tex.


                                           19
Civ. Prac. & Rem. Code Ann. § 75.003(d)–(g)). In Bonnin, the court addressed

the complaints as pleaded by the Bonnins; here, the Johnsons did not plead any

claims under the Recreational Use statute, nor could they rely on it to pursue

claims not otherwise allowed under the TTCA.       See id.; cf. Univ. of Tex. at

Arlington v. Williams, 459 S.W.3d 48, 51 (Tex. 2015) (considering whether

Recreational Use statute, which applies to “activit[ies] associated with enjoying

nature or the outdoors,” applied to the act of attending and observing a

competitive sports game). Accordingly, the reasoning in Bonnin does not apply

to except the Johnsons’ claims regarding the parts of the Premises, other than

the scour hole and boil or undertow and related current,5 from section 101.056’s

reinstatement of TRWD’s immunity.

      Ultimately, the Johnsons argue that there is a difference between

designing a dangerous condition on real property and allowing such a

dangerously-designed condition to continue unabated. However, the case law

does not stand for that proposition. Instead, the holdings are clear that if an

alleged real property condition is a result of a discretionary design decision—in

      5
       The Johnsons appear to use the phrase “deceptively dangerous current”
interchangeably in their petition and brief, either to refer to the water running
through the kayak chute or the current creating the boil or undertow effect as
evidenced by the larger scour hole. Because there is no evidence that the water
running through the kayak chute was not functioning as designed, we limit our
discussion in the next section to the Johnsons’ allegations about a “deceptively
dangerous current” to the extent that it can be construed as pertaining to the
alleged boil effect at the base of and immediately downstream from Dam No. 2.
See Miranda, 133 S.W.3d at 226 (instructing court to liberally construe
pleadings).


                                       20
other words, no law mandates a certain or different design—rather than the result

of the failure to properly maintain the real property as designed––even if the

result of the discretionary design decision is the creation of an allegedly

dangerous condition––then the governmental entity’s immunity is reinstated, and

therefore not waived, under section 101.056 of the TTCA. See, e.g., Haltom

City, 380 S.W.3d at 845–46 (“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.”); Mogayzel, 66 S.W.3d at 465–66.

The Complaints Regarding the Deepening of the Scour Hole and Evidence
    Raising a Fact Issue Regarding the Existence of an Undertow or
      Boil Effect Do Not Relate to a Discretionary Design Decision

      TRWD contends that all of the Johnsons’ claims, including those related to

the scour hole and possible undertow and boil at the base of and immediately

downstream of Dam No. 2, are barred by section 101.056.          The Johnsons,

however, respond that the discretionary acts exception does not apply to those

aspects of the Premises because

            Here, TRWD knew of and allowed the large scour hole at the
      base of Trinity Park Dam No. 2, knew of and allowed the dangerous
      conditions created by the large scour hole, including an undertow
      and boil effect which made swimming difficult, and knew of and
      allowed the dangerous 10 to 12 foot depth of the scour hole. The
      scour hole made the depth of the Clear Fork 10 to 12 feet deep
      instead of three feet. TRWD knew of and allowed all of these
      dangerous conditions on the premises.

             As TRWD’s Dam Safety Engineer has testified, the scour hole
      was not part of any TRWD design and did not rely on any TRWD
      design. The scour hole, boil effect, undertow and river depth did not
      rely on any TRWD design. The scour hole, boil effect, undertow and


                                       21
      river depth were a defective and dangerous condition at the base of
      Trinity Park Dam No. 2 that TRWD knew of but TRWD allowed to
      exist. The scour hole, boil effect, undertow and river depth were all
      dangerous conditions that did not rely on design decisions and are
      not subject to the discretionary acts exception.

[Citation omitted.] Therefore, we will likewise review the evidence related to the

scour hole and condition of the river at the base of and immediately downstream

of the dam.

      According to Verreault, the original channelization of this part of the Trinity

River by the Army Corps of Engineers was for the purpose of preventing and

minimizing flooding. That effort included grade leveling of the channel; design

grade is important to prevent erosion while also keeping water moving

downstream. The intended grade for the area in which Dam No. 2 is now located

was 522 feet mean sea level. After the channelization, the original dams were

constructed for purposes of sediment and erosion control.

      The evidence showed that prior to the 2003 reconstruction of Dam No. 2, a

scour hole existed two to three hundred feet downstream of the original dam,

which created a boil effect. According to Verreault, the formation of scour holes

downstream of low-water dams was common before 2003 because the “near

vertical-to-vertical” downstream face of such dams “highly aerated” the water

flowing over them as it dropped down the dam faces. The force of the downward

flowing water would “impact[] the water immediately on the downstream side of

the structure,” creating a “zone of rotation” as it flowed along the bottom of the

river channel, rose downstream, and was “directed back toward the face of the


                                        22
structure.” This highly aerated area is called a boil, and it pushes objects that fall

into the river in that area from the top to the bottom, directing them back toward

the structure.   This is a natural consequence of water flowing over such a

vertical-face dam. These pre-2003 vertical-face dam designs caused drownings,

including drownings of rescue crew members, and capsized boats.

      Verreault averred in an affidavit that the 2002 design of Dam No. 2, on the

other hand,

      creates a higher water pool downstream without a vertical drop even
      during higher water flow. The chute is designed to direct water
      along the surface of the river and not towards the bottom of the
      channel. Therefore, if an individual falls off the dam, there is no
      hydraulic boil that pushes them down, keeps them under water, and
      pulls them back toward the dam. Rather, the flow of water should
      push the individual downstream and toward the side of the river to
      shallow water.

According to Verreault, there is “no boil zone and no undertow created by” Dam

No. 2, and anyone who falls off the dam should not encounter anything other

than the normal flow of the river. He agreed that a boil makes swimming more

difficult but reiterated that the design of Dam No. 2 “does not create a boil.”

      Verreault admitted that the flow of water through the kayak chute creates a

“standing wave” on the other side. But according to Verreault, once water exits

the chute, its velocity drops off because the channel widens; a “very thin stream

of water mov[es] through the channel that almost appears to stop as the water

spreads out, and there’s no velocity on the sides of that.” Verreault said that the




                                         23
flow would not have drawn Brandy under the water because of the design of the

dam.

       Verreault averred that the base of the kayak chute is at approximately

525.5 feet mean sea level. He also averred that a bathymetric survey of the river

channel that he performed in 2003 during the reconstruction of the dams showed

that the mean sea level immediately downstream from the old dam varied from

bank to bank from 514 feet mean sea level to 525 feet mean sea level. The

center part of the channel that was closest to the downstream face of the old

dam ranged from 514 to 518 feet mean sea level, which means that if the Corps

had excavated that part of the channel to the original design grade––522 feet

mean sea level––the channel bottom immediately below the downstream face of

the old dam had eroded four to eight feet below the original design grade. This

result is the natural, expected effect of the flow of water over the old-style vertical

face dams.

       When TRWD redesigned and reconstructed Dam No. 2 in 2002 and 2003,

it decided not to fill in the existing scour hole to bring the channel elevation back

to the originally designed 522 feet mean sea level. Because the base of the

kayak chute would be at 525.5 feet mean sea level, TRWD was concerned that

kayakers wanting to perform underwater rolls or other maneuvers after passing

through the chute could hit their heads or kayaks on the river bottom with only a

three and one-half foot clearance.      Instead, TRWD decided that the existing




                                          24
scour hole, which the plan designated as being approximately 516 feet mean sea

level, would remain in place.

      Beason averred that TRWD learned of the scour hole created by the old

dam during the 2003 construction. The redesign contemplated that the “existing

pool,” which was described in the plan as 516 feet mean sea level “or

approximately 8 or 9 feet of water depth below the chute,” would remain in place

after construction of Dam No. 2.       During the construction, workers built a

temporary “coffer dam,” and “numerous items of rubble (such as soil, gravel, and

remnant concrete) were dislodged by the construction equipment and slid into

the scoured area.” According to Beason, after construction of Dam No. 2 was

complete, he consulted with the designer, who told Beason that the river bottom

downstream of the kayak chute needed to be at a depth of at least eight feet.

Therefore, TRWD removed the coffer dam and “graded the channel bottom to a

depth that would keep the river channel bottom no less than 8 feet from the

bottom of the kayak chute built into the dam.”

      However, evidence also shows that at the time of Brandy’s death, the

scour hole at the base of the kayak chute was deeper than even the eight feet

contemplated at the conclusion of the dam rebuild.      According to Verreault,

sometime before or after Brandy’s death––Verreault could not remember

whether in 2012 or 2013––as a result of an unrelated hydrographic survey,

TRWD discovered a scour hole located from the base of the dam to

approximately two hundred feet downstream from Dam No. 2, stretching 150 feet


                                        25
across. The loose materials that had been used for the fill had been washed

away at some point, possibly during a flood event in 2007. Verreault did not think

the scour hole resulted from the flow of water from the kayak chute.           He

acknowledged that a small island of debris appearing to be the fill that had been

placed in the river bottom had appeared downstream, but he did not know when

that “island” had appeared. Verreault agreed that if the design grade of the river

bottom had been elevated to 522 feet mean sea level at the downstream base of

Dam No. 2, a person would have been able to stand up.

      Two witnesses in the Park Plaza building south of the river adjacent to

Dam No. 2 saw a person in the water that day. One heard screaming and when

he looked out his office window, saw hands flailing above the water from

someone in the river who was “closer to the near shore” and who “appeared to

be unable to swim and was floating with the drift of the current.” The other

witness looking out of the building saw a head above the water near where

Brandy’s body was found. The Fort Worth Fire Department Dive Team noted

that the depth of the water where Brandy was found was thirteen feet.

      After Brandy’s death, Beason contacted the designer of the kayak chute,

Gary Lacy, to ask if any changes could be made to the dam or surrounding area

that might decrease the risk of drownings. Lacy advised Beason that raising the

channel bottom depth to 522 feet mean sea level, approximately three and one-

half feet below the kayak chute, was now feasible because many kayakers had

moved to using “shorter, stubbier ‘play’ boats.” This development in the sport of


                                       26
kayaking made raising the channel bottom more feasible than it would have been

in 2003.

      Verreault testified by deposition that part of his job with TRWD is to

monitor “any deposition of sediment on or near a dam that might need to be

removed from the river, or any areas indicated by bathymetric surveys that need

to be filled in, in order to make the river bottom match the design grade.” He

testified that TRWD’s Board had approved changes to the design grade

immediately downstream of Dam No. 2 in August 2015, which included bringing

the grade immediately adjacent to the base of the kayak chute to within three feet

of the base of the chute, or about 522 feet mean sea level. Verreault agreed with

the decision to raise the grade at that location, as recommended by Lacy,

because as “part of [TRWD’s] program to both raise levees and channel bottoms

or lower them to design grade,” this was an area that needed to be changed.

Additionally, he said that if the grade were elevated to that level, a person of

sufficient height could stand up if he or she fell into the river at that location.

      Beason testified that the primary maintenance for the dam is “debris

removal after storms [and] flow events.” He also had the job of replacing warning

signs that may have been damaged during storms. Beason was aware of the

scour hole or “plunge pool” at the base of the kayak chute; he thought it was at

least eight feet deep as a result of the 2002 redesign. Before the rebuild, this

“plunge pool” was eleven feet deep; thus, the concrete and rubble fill that was

placed in it during the reconstruction brought it up only about three feet, still


                                           27
about eight feet under the pre-dam design grade of 522 feet mean sea level.

The 2015 design changes––bringing the grade up to around 522 feet mean sea

level—occurred because after Brandy’s death, TRWD was told by the police that

the depth was eleven to thirteen feet. Beason thought that was unusual at the

time because he remembered that it was supposed to be eight feet.

      According to Beason, as a result of the Fire Department Dive Team’s

report about the depth of the river where they found Brandy, he ordered a

bathymetric survey, which indicated the depth of the water at that location was,

indeed, eleven to thirteen instead of eight feet deep.      When asked why he

thought so many people had drowned at Dam No. 2, Beason said,

      I wish I knew what the real problem was. . . . I have no employees
      that have had any eyewitness . . ., the witness statements are
      somewhat ambiguous and conflicting. Did someone fall off the dam
      into the water? Were they in the chute? Were they not in the chute?
      I have nothing to tell me that -- what exactly happened.

      The evidence thus shows that the depth below the dam was supposed to

be eight feet by design, but was instead eleven to thirteen feet deep; that the

scour hole was partially made up of loose debris and fill that washed away and

became deeper over time; that TRWD was charged with monitoring and

maintaining the channel depth; that an almost eleven foot deep scour hole had

existed before Dam No. 2 was rebuilt in 2003 and filled into a depth of eight feet;

that a boil effect had existed at the previous dam on the same site; that an

artificial island of debris had been created downstream of Dam No. 2; and that at

least one person who had swum in that area to save a child indicated that the


                                        28
water pushed her down to the bottom and then popped her back up. This is

some evidence contradicting TRWD’s assertion that Verreault’s testimony

conclusively proved that there was no boil effect due to the design of the kayak

chute and thus creating a fact issue as to whether TRWD’s failure to maintain the

eight-foot-designed depth contributed to the creation of a boil effect or undertow

at the base of Dam No. 2. 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. See Trevino, 153 S.W.3d at 62–

63 (holding that section 101.056 did not reinstate immunity from allegations that

bleachers had not been properly maintained in a safe condition when supported

by police report stating that the sides of the bleachers were loose from wear and

tear and that some of the platform boards were slightly warped, “possibly causing

someone to trip”).

      Conversely, the Johnsons’ complaints—that had the original scour hole

existing in 2002 and 2003 (when the dam was redesigned and rebuilt) been filled

in to a three-foot depth, Brandy would have been able to stand up when she fell

in—are all related to a discretionary design function. No evidence shows that

TRWD ever planned in 2002 or 2003 to raise the existing scour hole to a three-

foot depth; instead, the evidence shows that the eight-foot depth design was

intentional so as to accommodate the passage of kayakers and boats.




                                       29
        No Evidence Supports the Allegation that Either a Misuse of
       Personal Property or a Special Defect Caused Brandy’s Death

      TRWD argues that the Johnsons cannot maintain any surviving claims

under either a misuse of personal property theory or a special defect theory

because as a matter of law, they have not alleged or shown a viable claim under

either theory. The Johnsons do not argue that they can maintain such claims,

and we agree.    The Johnsons did not allege any specific personal property

misused by TRWD, nor did any of the evidence show such a misuse. To the

extent that they alleged a misuse of the warning signs because they are

inadequate, TRWD’s liability is not waived; a nonuse or failure to erect adequate

signage is not an allegation of misuse of personal property. See City of Fort

Worth v. Crockett, 142 S.W.3d 550, 554 (Tex. App.––Fort Worth 2004, pet.

denied) (op. on reh’g).    Additionally, the conditions of which the Johnsons

complain cannot be special defects. A special defect is a condition of the same

kind or class as an excavation or obstruction. Tex. Dep’t of Transp. v. York, 284

S.W.3d 844, 847 (Tex. 2009) (op. on reh’g). Additionally, “a special defect must

be something out of the ordinary course of events rather than a long-standard,

routine, or permanent defect.” Tex. Dep’t of Transp. v. Andrews, 155 S.W.3d

351, 356–57 (Tex. App.––Fort Worth 2004, pet. denied) (quoting Villarreal v.

State, 810 S.W.2d 419, 422 (Tex. App.––Dallas 1991, writ denied)). There is no

evidence that an ordinary user of Dam No. 2 would encounter the scour hole and

boil effect. Although the Johnsons presented evidence that people would walk



                                       30
“all over” the dam and that some had fallen off of the dam, there is no evidence

that the deepened scour hole or resulting boil effect was a temporary condition

out of the ordinary course of events that would have created an unexpected

danger to an ordinary user of the dam. Accordingly, we conclude and hold that

they did not allege a special defect. See Beynon, 283 S.W.3d at 330–32; State

Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238–39 (Tex.

1992) (op. on reh’g); Wardlaw v. Tex. Dep’t of Transp., 307 S.W.3d 369, 373–74

(Tex. App.––San Antonio 2009, no pet.). We thus must address TRWD’s final

argument regarding whether the Johnsons alleged a premises defect claim for

which immunity is waived under section 101.021.

           TRWD Did Not Allege that the Deeper “Scour Hole” and
               Alleged Boil Effect Was Open and Obvious

      TRWD finally argues that even if part of the Johnsons’ claims are not

barred, they nevertheless failed to state a claim for which its liability is waived

because the danger to Brandy was open and obvious.6 But because TRWD did

not assert in its plea to the jurisdiction that the scour hole and boil effect were

open and obvious––only the kayak chute and water running through it––the trial

court did not err by denying its plea to the jurisdiction on that basis.

      Accordingly, we overrule TRWD’s issue as to the Johnsons’ allegations

regarding the deepening scour hole and resulting boil effect due to TRWD’s

      6
        TRWD raised other ways in which it contends the Johnsons failed to state
a claim that was waived under sections 101.021 and 101.022 in its plea to the
jurisdiction, but it limits its argument on appeal to its open and obvious argument.


                                          31
alleged failure to maintain that area and part of the river channel around Dam

No. 2.     But we sustain its issue as to the Johnsons’ complaints about the

remainder of the Premises, including that TRWD should have filled in the scour

hole during the 2002 redesign and 2003 rebuild of Dam No. 2 to a depth of only

three feet below the kayak chute.

                                    Conclusion

         Having overruled TRWD’s sole issue in part, we affirm the trial court’s

order denying TRWD’s plea to the jurisdiction in part as set forth in this opinion.

But having sustained its issue in part as to some of the Johnsons’ claims as

detailed above, we reverse the trial court’s order as to those claims and render a

judgment of dismissal of those claims only. See Tex. R. App. P. 43.2(c).


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

SUDDERTH, J., filed a concurring and dissenting opinion.

DAUPHINOT, J., concurs without opinion.

DELIVERED: December 30, 2016




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