## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00043-CV

TARRANT REGIONAL WATER DISTRICT APPELLANT

V. RICHARD JOHNSON AND SHARKARA JOHNSON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES OF THE ESTATE OF BRANDY JOHNSON APPELLEES

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

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### OPINION

---------- This is an interlocutory appeal from th e denial of a plea to the jurisdiction based on alleged governmental immunity. See Tex. Civ. Prac. & Rem. Code2 Ann. § 51.014(a)(8) (West Supp. 2016). In a single issue, appellant Tarrant Regional Water District (TRWD) contends th at the trial court erred by denying its plea to the jurisdiction because the Texa s 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 pa rt and affirm in part. Background On January 16, 2013, the Johnsons ’ nineteen-year-old daughter Brandy Johnson tragically dr owned in the Trinity River a fter 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 ha s a kayak chute in the midd le through which the river rapidly flows. After Brandy’s death, the Johnsons sued TRWD, which “owns, operates[,] and maintains th e systems of levees, su mp areas, flood gate structures, channel improvements, ri ver 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 thir d amended petition, the Johnsons brought claims under the TTCA alleging that the following conditions constituted either a premises defect, a special def ect, or both: “Trinity Pa rk Dam No. 2, the kayak chute on Trinity Park Da m No. 2, the levees, rockstairs 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 Trin ity Park Dam No. 2” (collectively the Premises). They also alleged that (1) TRWD is liable under the TTCA for3 negligence because an employee ha d used or misused tangible personal property or furnished Brandy with inad equate or defective tangible personal property and (2) TRWD was either gros sly negligent or acted with malicious intent or bad faith. Fina lly, the Johnsons brought wr ongful death and survival causes of action. TRWD filed a plea to the jurisdicti on 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 ofpersonal 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 premis es 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. Alternat ively, TRWD argued that if (3) above does not apply, the Johns ons 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 theyalleged an actionab le 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 adequa tely. The trial court denied the plea to the jurisdiction.4 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. deni ed). 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 Wort h 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. Whethe r 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 jurisdicti on challenges the existence of jurisdictional facts, we consider relevant evidence submi tted 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 rega rding the jurisdictional is sue, 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 fa ils to raise a fact question on the jurisdictional issue, the tria l court rules on the plea to th e jurisdiction as a matter5 of law. Miranda , 133 S.W.3d at 228; Jenkins , 307 S.W.3d at 857. This standard generally mirrors that of a tr aditional 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 en joys 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 immuni ty to suit is a ch allenge 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 immunityin 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 “perso nal 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). “Liabilit y for premises defects is implied under section 101.021(2) becaus e a premises defect arises from a6 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 ofthe TTCA exempts from section 101.021’s waiv er of immunity a “government al 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 le aves the performance or nonperformance of the act to the discretion of the govern mental 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 Di st.] 2009, pet. deni ed). 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 requir es exercising judgment and [if] the law does not mandate performing the act with such precisio n 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-leve l decisions, for which immunity exists, and operational-level decisions, for wh ich there is no immunity; the second7 distinguishes between the de sign of public works, fo r 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 pl anning level that constitute th e 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.––Au stin 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 po licy 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. Addition ally, a court should not secondguess a governmental unit’s decision aboutthe 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 beca use of section 10 1.056’s applicability, we will first

1 Although many of the discretionary design cases relate to roadway design, they are not limit ed 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.).8 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 Jo hnsons’ Third Amended Petition The Johnsons alleged in their live plea ding 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 seco nd.” They also alleged thatthe chute is “made of an exposed aggregate pea gravel concrete mix, is appr oximately 10 feet across[,] and is smooth, slick and slippery, espe cially with water running through the chute.” They further alleged that the chute in Dam No. 2 “c reates 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 material s 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” Da m 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 a nd was “as large as it origi nally was when negligently repaired in 2002.” The petition states, “T he depth of the river at the downstream9 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 drowne d. The Johnsons also allege d 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 rive r depth back to the original three foot depth.” The Johnsons further detailed three previous drowning s 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 a lleged that a cyclis t who successfully saved Dania Martinez’s son, but who could not rescue Martinez, told CBS 11 news, “It looks comple tely harmless . . . but that littl e 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 reac h 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 fo und 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 design s were considered––one of which showed an arrow through water an d said “Beware Strong Currents” and10 the other of which showed the top of a person’s he ad and a waving arm over water stating “STRON G 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 re lations person. No safety studies occurred. No contact was made with the designer of the walkways to see if they co uld 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 thatthe “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 dang erous conditions, including that the scour hole that was su pposed to be three feet in depth was actually eleven to twelve feet in dept h. Moreover, they allege TRWD was actually aware “of the numerous drowning s 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 dan gerous for the general public to walk across [Dam No. 2] when there was wa ter flowing through the kayak chute.”11 The Johnsons contende d that the defective co ndition 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 ofartificial man made dams and kayak chutes,” creating “a smooth looking ye t powerful and deceptively dangerous current through the kayak ch ute” and “re-creat[ing] a large scour hole”: “If the large scour hole[,] which was cr eated by the artificial diversion of the natural flow of the water, had been prop erly repaired or maintain ed, Brandy . . . would have been able to stand up in the Clear Fork of the Trinity River.” Furthermore, the Johnsons claim that TRWD negligentl y implemented policy and negligently maintained the Premises by not “filling in or repairing t he large scour hole,” filling it in improperly, or both, and by n egligently constructing Dam No. 2 and the surrounding area. Finally, the Johnsons allege that TRWD was negligent in failing to manufacture the more explicitwarnings signs proposed and considered by TRWD in 2012, bef ore Brandy’s death, and in failing to “secure the area to prohibit access to the unsafe conditions.”12 The Johnsons’ Complaints About the Parts of the Premises Other Than The Scour Hole and Resulting “Bo il Effect” Relate Only to Discretionary Design Decisions 2
Relevant Facts The following evidence ab out the Premises was developed during the plea to the jurisdiction pleading process. Th e United States ArmyCorps of Engineers is jointly responsible with TRWD for re gulating and maintaining flood control along the Trinity River in Fo rt Worth. In the 1960s, the Corps channelized this part of the river and strengthened existing le vees to assist in fl ood control. Part of the channelization included the establis hing of a grade for the river bottom to facilitate river flow. As a result of th e 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 19 70s, 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 fr om adjacent Trinity Park down to the dam. According to TRWD’s Dam and Lev ee Safety Engineer, Louis Verreault, the original dams in this location were ve rtical face dams. Over time, those types

2 TRWD contends in its reply brief th at 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 reviewrequires us to consider whether TRWD was entitled to a dismissa l of the Johnsons’ pleaded claims, we will consider TRWD’s preserved appellate arguments as to the Johnsons’ entire petition in light of the approp riate standard of review. See Miranda , 133 S.W.3d at 226–27.13 of dams will move sedime nt from the river channel bottom downstream in a “scouring” effect due to the force of the water flowing ov er the dam and then straight down toward the river bottom. In 2002 and 2003, TRWD redesigned and reconstructe d several dams, including Dam No. 2, for recreational purposes. The design for Dam No. 2 included a kayak chute in th e middle of it for use byrecreational kayakers and inner tubers. Construction began in 20 03 and consisted of the removal of the dams built in the 1960s and the rebuildi ng 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 redesi gn was to ensure its structural integrity. As part of the design proc ess for the kayak chute, TRWD had to demonstrate to the Army Corps of Engine ers 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 mi ddle of Dam No. 2 is a te n foot opening through the center of the dam and consists of “running water running over a slippery surface.” The kayak chute was intentionally des igned to be slippery so as to facilitate the movementof kayaks and small boats thro ugh it from one pool of the river to the next. The botto m is made of exposed pea gravel that was chosen to be “smooth and slick.” TRWD relied on the designer of th e chute to make sure it would be safe for kayake rs. However, Verreault ad mitted that TRWD did not take measures to ensure the safety of people walk ing across the kayak chute14 because it was not intended as a walkwa y. Verreault did not believe the dam was unsafe, but he did agree that walking on it could be dangerous. Verreault estimated that th e flow of the river on th e day of Brandy’s death was two to five hundred cubic feet per se cond. The velocity of the water running through the chute, however, would have bee n 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 wa ter moving across the chute on the day of Brandy’s death was six inches deep, wh ich, at the speed it was moving, could cause someone to fall. On that day, the water fl owing through the chute did not reach across its entire ten foot width; according to Verreault’s testimony, “it appears that there wa s very low flow through the ce nter chute, because it’s all contained within the center chute and doesn’t cover it fr om side to side, so my assumption is that it’s at a lower flow.” When Dam No. 2 was instal led, TRWD did not inst all warnings regarding the danger of the water speed or flow in the chute, but it did embed signs in the rock approaching the kayak c hute on each side of the ch ute with a depiction of a figure walking with a line through it. At th e time of Brandy’s de ath, another set of signs had been posted on eith er side of the kayak chut e on Dam No. 2 that said, “SAFETY FIRST PLEASE WATC H YOUR CHILDREN,” alon g 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, so15 TRWD thought the reason that there ha d 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, TR WD posted warnin gs regarding the strong current on social media and in the Fort Worth Star-Telegram . TRWD also placed new signs on Dam No. 2 after Bran dy’s death; since that time until at least August 20, 2015, the date of Beason’s deposition, there had not been any drowni ngs at Dam No. 2. In August 2015, the TRWD Board approved wide ning the chute to twentyfive feet; TRWD also pl anned to place rubber ba ffles 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 in ner tubes: the stairs are for the purpose of “bring[ing] people do wn [to the river] to recreate . . . [and] contact . . . the river.” Likewise, the fishing pier was already existing in 20 02; as part of the redesign of Dam No. 2, TR WD 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 ar e not damaged or ob scured by debris.

3 Neither of these points of access or use required walking across the chute.16 Analysis All of the evidence supp orts the conclusion that the condition of the kayak chute about which the Johnsons compla in––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 malf unction of the chute or TRWD’s failure to maintain it. The evidence shows thatthe 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 mo ve 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 bringi ng people down to the river to fish or launch boats. This evidence shows that the allega tions 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 compla ints 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 Appella nts pled that Appellees had notice of I–20’s dangerous condition and failed to correct it within a reasonable time, they have not alleged th at 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’17 claims about those conditions are barred under section 101.05 6 of the TTCA. See City of Austin v. Frame , No. 03-15-00292-CV, 2016 WL3068379, 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 soci al and economic co ncerns and devise a plan to address each spec ific 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 allo cate its resources,” which is “exactly the sort of policy formulat ion and balancing of interests that the discretionary-powers exceptio n 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 neg ligence alleged by Ha thorn arose not from faulty implementation of t he 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 both 4––is a complaint aboutthe decision of whether or not to install safety featur es, which is barred bysection 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’ co mplaint that TRWD negligently implemented a policy to add new sign s because it did not approve and implement an initial design for signs with a clearer warning.18 barrier or guardrail was “in essence, a complaint about t he City’s alleged decision not to modify the existing design of its public works” and complaint of failure to change a design to make itsafer 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 ofmarker 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 immuni ty 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). Accord ingly, we conclude and hold that the Johnsons’ claims regarding th e signs’ allegedly inadequate warnings as creating an unsafe condition are ba rred by section 101.056. The Johnsons contend that a different re sult 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 La ke Dam on the university’s campus. Id.19 at *1. His parents sued the university, pl eading that his death was the result of a turbulent undertow that pulled him into underwater caverns beneath the
restaurant. Id. According to the Bonnins’ petiti on, the university had created an unreasonably dangerous conditio n as a result of making repairs to the waterway at the location where their so n died and failing to block ac cess to, or warn others about, the underwater caverns. Id. The Austin Court of Appeals held that section 101.056 barred the Bonnins’ claims regard ing the creation of the condition and failure to warn, holding th at those allegations were not based on the argument that the univ ersity had failed to mainta in the waterw ay after the repairs were made but, rather, they attri buted the Bonnins’ son’s death to “the initial design decisions re garding the repairs.” Id. at *2. However, the court wenton to address a separate claim in the Bonnins’ petition: that under the Recreational Use statute, th e University had allowed a defective condition on the property––a dangerous undertow existing apart from, and not created by, the desi gn of the underwater cavern s––when it “knew . . . or should have known [that] the property would be used for re creational purposes.” Id. at *3; see Tex. Civ. Prac. & Rem. Code Ann. § 75.001–.007 (West 2011 & Supp. 2016) (commonly kn own as the Recreational Use statute). The Recreational Use statute nei ther creates liability nor wa ives sovereign immunity; instead, it further “limits the liability ofa 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.20 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 th ey 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). A ccordingly, the reasoning in Bonnin does not apply to except the Johnsons’ cl aims regarding the parts of the Premises, other than the scour hole and boil or un dertow and related current, 5from section 101.056’s reinstatement of TRWD’s immunity. Ultimately, the Johnsons argue th at there is a difference between designing a dangerou s condition on real property and allowing such a dangerously-designed condit ion to continue unabated. However, the case law does not stand for that proposition. In stead, the holdings are clear that if an alleged real property cond ition is a result of a discretionary design decision—in

5 The Johnsons appear to use the phra se “deceptively dangerous current” interchangeably in their pe tition 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 scou r hole. Because there is no evidence that the water running through the kayak ch ute was not functioning as designed, we limit our discussion in the next section to the Jo hnsons’ allegations ab out a “deceptively dangerous current” to the extent that it can be construed as pertaining to the alleged boil effect at the base of and im mediately downstream from Dam No. 2. See Miranda , 133 S.W.3d at 226 (instructing court to liberally construe pleadings).21 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 deci sion is the creation of an allegedly dangerous condition––then th e governmental entity’s immunity is reinstated, and therefore not waived, under se ction 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 th e Existence of an Undertow or Boil Effect Do Not Re late to a Discretionary Design Decision TRWD contends that all of the Johnso ns’ claims, including those related to the scour hole and possible undertow an d 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 exceptio n does not apply to those aspects of the Premises because Here, TRWD knew of and allowe d the large scour hole at the base of Trinity Park Dam No. 2, knew of and allo wed the dangerous conditions created by the large scour hole, including an undertow and boil effect which made swi mming 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 kn ew 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 effec t, undertow and river depth did not rely on any TRWD design. The scourhole, boil effect, undertow and22 river depth were a defective and da ngerous condition at the base of Trinity Park Dam No. 2 that TRWD knew of but TRWD allowed to exist. The scour hole, boil effect, un dertow and river depth were all dangerous conditions that did not rely on design decisions and are not subject to the discre tionary acts exception. [Citation omitted.] Therefor e, we will likewise review th e evidence related to the scour hole and condition of the river at th e base of and imme diately downstream of the dam. According to Verreault, the original ch annelization of this part of the Trinity River by the Army Corps ofEngineers was for the purpose of preventing and minimizing flooding. That effort included grade leveling of the channel; design grade is important to prevent erosio n 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 leve l. After the channelizati on, the original dams were constructed for purposes of se diment and erosion control. The evidence showed that prior to th e 2003 reconstruction of Dam No. 2, a scour hole existed two to three hundred fe et downstream of the original dam, which created a boil effect. According to Verre ault, the formation of scour holes downstream of low-water dams was comm on before 2003 because the “near vertical-to-vertical” downstream face of such dams “highly aerated” the water flowing over them as it dropped down th e dam faces. The fo rce 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 alon g the bottom of the river channel, rose downstre am, and was “directed back toward the face of the23 structure.” This highly aerated area is ca lled a boil, and it push es objects that fall into the river in that area from the top to the bottom, direct ing them back toward the structure. This is a natural cons equence of water flowing over such a vertical-face dam. These pre-2003 vertic al-face dam designs caused drownings, including drownings of rescue crewmembers, and ca psized boats. Verreault averred in an affidavit that the 2002 design of Dam No. 2, on the other hand, creates a higher water pool downstr eam without a vertical drop even during higher water flow. The ch ute is designed to direct water along the surface of the river an d not towards the bottom of the channel. Therefore, if an individual falls off the dam, there is no hydraulic boil that pushes them do wn, keeps them under water, and pulls them back toward the dam. Rather, the flow of water should push the individual down stream and toward the side of the river to shallow water. According to Verreault, there is “no bo il zone and no undertow created by” Dam No. 2, and anyone who fa lls off the dam should no t encounter anything other than the normal flow of the river. He agreed that a boil ma kes swimming more difficult but reiterated that the design of Dam No. 2 “does not create a boil.” Verreault admitted that the flow of wa ter through the kayak chute creates a “standing wave” on the other side. But according to Verreault, once water exits the chute, its velocity drop s off because the channel wi dens; a “very thin stream of water mov[es] through th e channel that almost appe ars to stop as the water spreads out, and there’s no velo city on the sides of that.” Verreault said that the24 flow would not have drawn Brandy under the water because ofthe design of the dam. Verreault averred that the base of th e kayak chute is at approximately 525.5 feet mean sea level. He also aver red that a bathymetric survey of the river channel that he performed in 2003 during the reconstr uction of the dams showed that the mean sea level immediately dow nstream from the ol d dam varied from bank to bank from 514 feet mean sea le vel to 525 feet mean sea level. The center part of the channel that was clos est to the downstream face of the old dam ranged from 514 to 518 feet mean sea level, whic h 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 th e flow of water over the old-style vertical face dams. When TRWD redesigned and reconstr ucted Dam No. 2 in 2002 and 2003, it decided not to fill in the existing scou r 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 othe r 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. Inst ead, TRWD decided that the existing25 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 contem plated that the “existing pool,” which was described in the plan as 516 fe et 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 cons truction, 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 Beas on 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 da m and “graded the ch annel 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 th e kayak chute was deeper th an even the eight feet contemplated at the conclusion of the dam rebuild. Accord ing to Verreault, sometime before or after Brandy’s de ath––Verreault could not remember whether in 2012 or 2013––as a resultof an unrelated hy drographic survey, TRWD discovered a scour hole locate d from the base of the dam to approximately two hundred fe et downstream from Dam No . 2, stretching 150 feet26 across. The loose material s 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 ofwater 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 agre ed that if the design grade of the river bottom had been elevated to 522 feet mean sea level at the do wnstream base of Dam No. 2, a person would ha ve been able to stand up. Two witnesses in the Park Plaza build ing south of the river adjacent to Dam No. 2 saw a person in the water th at day. One heard screaming and when he looked out his o ffice window, saw hands fla iling above the water from someone in the river who was “closer to the near shore” an d who “appeared to be unable to swim and was floating with the drift of the current.” The other witness looking out of the building sa w 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 fo und was thirteen feet. After Brandy’s death, Beason contacte d 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 Beas on that raising the channel bottom depth to 52 2 feet mean sea level, ap proximately three and onehalf feet below the kayak c hute, was now feasible be cause many kayakers had moved to using “shorter, stubbier ‘play’ b oats.” This development in the sport of27 kayaking made raising the channel bottom mo re feasible than it would have been in 2003. Verreault testified by depo sition 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 bathy metric surveys that need to be filled in, in order to make the river bottom matc h the design grade.” He testified that TRWD’s Board had approved change s to the design grade immediately downstream of Dam No. 2 in August 2015, which included bringing the grade immediately adjacentto the base of the kayak ch ute to within three feet of the base of the chute, or about 522 feet mean sea le vel. Verreault agreed with the decision to raise the grade at thatlocation, 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 wa s 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 s he 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 duri ng storms. Beason was aware of the scour hole or “plunge pool” at the base ofthe 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 ru bble fill that was placed in it during the reconstruction brought it up only about three feet, still28 about eight feet under the pre-dam design grad e of 522 feet me an sea level. The 2015 design chan ges––bringing the grade up to around 522 feet mean sea level—occurred because after Brandy’s deat h, TRWD was told by the police that the depth was eleven to th irteen feet. Beason though t that was unusual at the time because he remembered that itwas 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 foun d Brandy, he ordered a bathymetric survey, which indicated the de pth 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 drow ned at Dam No. 2, Beason said, I wish I knew what the real proble m was. . . . I have no employees that have had any eyewitness . . ., the witness statements are somewhat ambiguous an d conflicting. Did so meone 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 da m was supposed to be eight feet by design, but was instead el even to thirteen feet deep; that the scour hole was partially ma de up of loose debris an d 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 20 03 and filled into a depth of eight feet; that a boil effect had existed at the pr evious dam on the same site; that an artificial island of debris had been crea ted downstream of Dam No. 2; and that at least one person who had swum in that area to save a child indicated that the29 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 th ere was no boil effect due to the design of the kayak chute and thus creati ng a fact issue as to whether TRWD’s failure to maintain the eight-foot-designed depth contributed to t he creation of a boil effect or undertow at the base of Dam No. 2. Thus, the complaints abou t the deepening scour hole and possible related boil effe ct are not complaints abou t 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 re instate immunity from allegations that bleachers had not been properly maintain ed in a safe condition when supported by police report stating that the sides ofthe bleachers were loose from wear and tear and that some ofthe platform boards were sli ghtly warped, “possibly causing someone to trip”). Conversely, the Johnsons’ complaints —that had the original scour hole existing in 2002 and 2003 (w hen the dam was redesigned and rebuilt) been filled in to a three-foot depth, Brandy would ha ve been able to stand up when she fell in—are all related to a discretionary desig n function. No ev idence shows that TRWD ever planned in 2002 or 2003 to ra ise the existing scour hole to a threefoot depth; instead, the evidence shows that the ei ght-foot depth design was intentional so as to accommodate th e passage of kayakers and boats.30 No Evidence Supports the Allega tion that Either a Misuse of Personal Property or a Special Defect Caused Brandy’s Death TRWD argues that the Johnsons cann ot 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 Johnso ns did not allege any spec ific personal property misused by TRWD, nor did any of the ev idence show such a misuse. To the extent that they alleged a misuse ofthe 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. Ap p.––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 exca vation 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 ordi nary course of events rath er 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 Wo rth 2004, pet. denied) (quoting Villarreal v. State , 810 S.W.2d 419, 422 (Tex. App.––Dalla s 1991, writ denied)). There is no evidence that an ordinary user of Dam No. 2 would en counter the scour hole and boil effect. Although the Johnsons presente d evidence that people would walk31 “all over” the dam and that some had fallen off of the dam, there is no evidence that the deepened scour hole or resultin g 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 whethe r the Johnsons alleged a premises defect claim for which immunity is waived under section 101.021. TRWD Did Not Allege that th e Deeper “Scour Hole” and Alleged Boil Effect Wa s Open and Obvious TRWD finally argues that even if part of the Johnsons’ claims are not barred, they nevertheless fa iled to state a claim for wh ich its liability is waived because the danger to Bran dy was open and obvious. 6But because TRWD did not assert in its plea to the jurisdiction that the scour hole and boil effect were open and obvious––onl y the kayak chute and water ru nning through it––the trial court did not err by denying its plea to the jurisdiction on that basis. Accordingly, we overrule TRWD’s is sue as to the Johns ons’ 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.32 alleged failure to maintain that area an d part of the river channel around Dam No. 2. But we sustain its issue as to the Johnsons’ complaints about the remainder of the Pr emises, including that TRWD should have filled in the scour hole during the 2002 redesign and 2003 re build 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 concur ring and dissenting opinion. DAUPHINOT, J., concur s without opinion. DELIVERED: Dece mber 30, 2016