In Guereque v. Thompson, 953 S.W.2d 458 (Tex. App.--El Paso 1997, pet. denied), a ten-year-old boy tragically drowned while trying to retrieve a ball from a canal abutting the rear of a trailer park. 953 S.W.2d at 460.
The boy's parents sued the owners of the trailer park, alleging the fence guarding the trailer park residents from the canal was improperly erected and was in poor repair, with large gaps in it, through which a child could pass. Id. at 460, 461.
The property manager of the trailer park testified in his deposition that he informed the trailer park owners that the fence was in serious disrepair and violated the El Paso City Code; however, the owners told the property manager not to do anything unless the city inspector required the repair of the fence. Id. at 461.
In analyzing whether the trailer park owners could be held liable for creating the dangerous condition that caused the accident, the El Paso court noted that the dangerous condition exception to the control requirement applied only if the trailer park owners actually created the instrumentality that caused the injury or death. Id. at 468.
The court then noted the "dangerous condition" was the canal, not the fence. Id. Because the fence did not cause the child's death, the evidence failed to establish the trailer park owners created the dangerous condition in question. Id.