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Click here for the full text of this decision FACTS:Mark Hartman and three others were traveling eastbound on Rigsby Ave. in San Antonio toward Shrader St. The intersection of the two streets was filled with floodwaters, and the car in which the four were riding was swept away and everyone in the group was killed. The city and the state knew of floodwaters in the area and had begun placing barricades and flares on some roads in the area, including along the roadways leading to the intersection, though it is unclear how many or what kind. Hartman’s estate, as well as the estates of the other decedents, sued the city under the Tort Claims Act. The estates first alleged that the unexpected presence of floodwaters obstructing Rigsby Avenue constituted a “special defect” for which the city breached its duty of care to the decedents as invitees. Alternatively, the estates alleged a “premise defect,” in which the city breached its duty of care to the decedents as licensees. The city filed a plea to the jurisdiction and a no-evidence motion for summary judgment. The trial court denied the motions, and the city appeals the denial of the plea to the jurisdiction. HOLDING:Affirmed. In reference to the estates’ first claim, the court notes that, under the invitee standard, the government occupant has a duty to warn of dangerous conditions of which the government has knowledge or which the government would have discovered in the exercise of ordinary care. In reference to the estates’ alternative claim, the court further notes that, under the licensee standard, the government occupant owes the duty not to injure the licensee by willful, wanton or gross negligence. An exception to this general rule is when the licensor has knowledge of a dangerous condition and the licensee does not, the licensor has a duty to either warn the other or make the condition reasonably safe. Both standards, thus, require the city to either warn the decedents of dangerous conditions or make safe those same conditions if it had actual knowledge at the time of the flooding, the court continues. Reviewing the estates’ pleadings, the court finds that they successfully pleaded their claims under the TCA. The court then turns to assess whether the city established jurisdictional facts that indicate the city retained its governmental immunity, such facts as: 1. did the city owe a duty to the decedents; 2. did an emergency condition exist; 3. did the barricades provide adequate warning and/or did the city not know that the barricades needed to be replaced; and 4. were such decisions of the city barred from claim as being design and/or discretionary? The court finds that the decedents did not need to prove that the city actually owned the street itself in order for the city to be found liable. The court further finds that the 1974 Municipal Maintenance Agreement does not put the responsibility to barricade or close streets when there is roadway flooding on the state. There is conflicting testimony over the placement of the barricades and what that placement meant in terms of city control over the intersection at the time of the accident. All three of these points create a fact issue over whether a duty exists, the court rules, and must be resolved by a fact finder, so the plea to the jurisdiction was correctly denied on this point. The court also rules that there is a fact issue remains over whether an emergency condition existed. Emergency situations create a limited exception to the waiver of governmental immunity, and the city tries to argue that the flood created such an emergency condition. The city refers to the mayoral declaration of a state of emergency and his request for federal assistance as proof of the emergency condition, but the court rules that an “emergency condition” for jurisdictional purposes is much more specific that the colloquial use of the word “emergency.” Instead, the emergency exception provision has most often been considered in connection with traffic accidents involving law enforcement and emergency vehicles. The court examines the sworn testimony of various witnesses on whether the barricades were adequate to warn the decedents of the water on the roadway. The court rules that the conflicting evidence creates an issue of material fact sufficient to survive the city’s plea. The court rules similarly with respect to the issue of whether the city knew that the barricades needed to be replaced. Finally, the court rejects the city’s contention that it is immune from suit because its decisions regarding number and placement of the barricades are discretionary. The court rules that the application of immunity for discretionary functions relates to policy decisions on roadway design and traffic regulation, not to non-policy decisions like where to place the barricades. OPINION:Angelini, J.; Lopez, C.J., Angelini and Speedlin, JJ.

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