                      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
                                     ----------

                                   OPINION
                                     ----------

      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




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