The El Paso Court of Appeals has reversed a trial court order denying the City of El Paso’s plea to the jurisdiction in a suit arising from a flash flood that killed a toddler and her grandmother when the wall of their home collapsed.
The City of El Paso, Texas, through the El Paso Water Utilities Public Service Board v. Fred Marin, Individually and on Behalf of the Estate of Dorothy A. Marin, Deceased, and Lindsey Marin, Individually and on Behalf of the Estate of Rose M. Marin, Deceased (No. 08-25-00192; October 8, 2026) arose from a 2021 flood in El Paso that resulted in the partial collapse of a home, killing a toddler and her grandmother. In June 2023 the Marins sued the City, the PSB, El Paso Water, and El Paso Municipal Drainage Utility, alleging waiver of immunity under TTCA § 101.021 and 101.025. Specifically, Plaintiffs alleged that Defendants “failed to properly inspect, maintain, and/or release water out of the water retention ponds, thus creating a dangerous environment where the incident occurred.” Plaintiffs later added a takings claim, which they later nonsuited, and premises defect and special defect claims. The City filed a plea to the jurisdiction and traditional MSJ. The trial court denied the plea and MSJ. The City sought interlocutory relief.
In an opinion by Justice Soto, the court of appeals reversed and rendered judgment in favor of the City. Plaintiffs claimed that their injuries were “caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable[.]” §§ 101.021(1), (2), CPRC. They argued that the retention ponds for flood control were inadequate or defective, proximately causing Plaintiffs’ harm. Consequently, “because the claim involves real property, it must satisfy the requirements for either a special defect or premises defect claim under TTCA § 101.022.”
For their special defect claim, Plaintiffs contended that flooded streets were “an unexpected and unusual danger” to Plaintiffs, but “the statutory test is simply whether the condition is of the same class as an excavation or obstruction” on a roadway,” and only if the defect “pose[s] a threat to the ordinary users of a particular roadway.” Since the Marins weren’t users of the roadway, the threat of flooding didn’t constitute a special defect. Additionally, the court observed, “even with respect to users of roadways, floodwater does not constitute a special defect” (citations omitted). The TTCA thus didn’t waive the City’s immunity as to the special defect claim.
Turning to the premises defect claim, the court noted that Plaintiffs had to “show that the defendant ‘actually knew’ of the dangerous condition ‘at the time of the accident,’ and did not merely know ‘of the possibility that a dangerous condition c[ould] develop over time.” Plaintiffs couldn’t make that showing. Plaintiffs produced an affidavit sworn by a resident in the home averring that the home had flooded three times in the past 20 years and that the resident had reported it each time. According to the court, this “affidavit at most suggests that the City may have known that the area in which the Marin home was located might flood in a heavy rainstorm, but it does not raise a fact issue as to whether the City actually knew that the Marin home had flooded at the time of the accident.” Consequently, the TTCA didn’t waive immunity as to the premises defect claim, either. The court reversed the trial court and dismissed the case.
