On Friday, April 12, the Texas Supreme Court struck down a claim under the Texas Tort Claims Act, holding that designing a dam was a discretionary act under Section 101.056 of the Civil Practice & Remedies Code.
The underlying facts are a tragedy. Brandy Johnson attempted to cross the Clear Fork of the Trinity River by walking across Trinity Park Dam No. 2. Five months pregnant, she slipped and fell into the river while crossing a 10-foot wide kayak chute. She drowned.
The act provides that it does not apply to a claim based on "a governmental unit's decision not to perform an act or on on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit." The case law interpreting this exception has, in some circumstances, applied a design/maintenance distinction. The design of a public work: no liability. The maintenance of a public work: liability.
The Court held that the dam was not designed to be walked upon - so the maintenance of proper warning signs was not an issue. Further, the Court held that the excavation of an 8-10 foot dropoff as a safety issue for kayakers was a design issue, not a maintenance issue.
The Court held that the governmental entity was not liable.
The case is Tarrant Regional Water District v. Richard Johnson, et al., Case Number 17-0095, and can be found at http://www.txcourts.gov/media/1443921/170095.pdf.