City of Austin v. Leggett
In City of Austin v. Leggett, 257 S.W.3d 456, 460 (Tex. App.--Austin 2008, pet. denied), 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.
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.
The Court explained:
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.
. . . .
. . . We 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.