Sheehan, Michael

English

University of Denver

Water Law Review Volume 5 Issue 1 Article 52 9-1-2001 Raburn v. KJI Bluechip Inv., 50 S.W.3d 699 (Tex. App. 2001) Michael Sheehan Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Michael Sheehan, Court Report, Raburn v. KJI Bluechip Inv., 50 S.W.3d 699 (Tex. App. 2001), 5 U. Denv. Water L. Rev. 291 (2001). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSTexas law provides that a person whose property is injured by anoverflow of water caused by an unlawful diversion or impounding hasremedies at law and in equity and may recover damages occasioned bythe overflow. Texas law also provides that government units aregenerally immune from tort liability except where the legislature hasspecifically waived that immunity. In order to prevail against agovernment entity, an action must fit into one of the exceptionsprovided or it fails as a matter of law.The Texas Court of Appeals held that because the Residents didnot meet an exception to the defense of sovereign immunity, theDrainage District was immune from liability as a matter of law.Michael BarryRaburn v. KJI Bluechip Inv., 50 S.W.3d 699 (Tex. App. 2001)(affirming summary judgment due to inability to establish a duty ofreasonable care in the event of a flash flood that renders a highwayimpassible).While traveling Texas Highway 114, a flash flood swept John andJanet Raburn's ("Raburns") vehicle off of the highway. At the momentthe vehicle was washed off of the road, it was on a stretch of highwayrunning through land owned by KJI and leased to Ed and Tom Strader("Straders"). The Raburns' vehicle quickly became submerged.Rescuers successfully freed Janet and one of her sons. Janet's otherson, Justin, was swept away in the current, and was later found dead.In an action for personal injuries and wrongful death, the Raburnsalleged that as owners of the abutting property, KJI and the Stradershad a duty to put into place a system that would safely facilitate theflow and drainage of water. KJI and the Straders moved for summaryjudgment. They alleged the state of Texas had an exclusive, non-delegable duty to control storm and flood waters, and therefore theywere immune from the Raburn's negligence claim. The trial courtgranted these motions and the Raburns appealed.The applicable legal standard is such that if at least one element ofthe plaintiff's cause of action cannot be established, the defendant isentitled to summary judgment. Evidence in summary judgmentmotions must be reflected in the light most favorable to the non-moving party. If the non-moving party can establish more than ascintilla of probative evidence that there is a genuine issue of materialfact, then a no evidence summary judgment is improper. To establishmore than a scintilla of evidence, the nonmovant's evidence mustenable reasonable and fair-minded people to reach differentconclusions. A scintilla is not established when evidence only creates amere surmise or suspicion of a fact.On appeal, the Raburns alleged there was a general rule in Texasthat the owner and occupier of land abutting a highway has a duty toIssue 1WATER LAW REVIEWexercise reasonable care to avoid endangering those using the highwayas a means of travel, and is liable for any injuries resulting from suchnegligence. This duty was limited to cases where a landownernegligently released upon the highway an "agency that becomesdangerous by its very nature once upon the highway." The Raburnsalleged KJI and the Straders diverted water into the culvert by puttingcrushed concrete on the property, and thus owed a duty to thosetraveling on that highway.The court found this allegation to be conclusory, and notsupported by more than a scintilla of probative evidence that raised agenuine issue of material fact. Even if the Raburns could put forthsufficient evidence, the court held their claim would fail on alternategrounds. The Texas Water Code states that one who diverts thenatural flow of surface waters may be liable for any property damagesuffered as a result of the diversion. The code does not includeliability for survival actions, personal injuries, or wrongful death.Additionally, the state of Texas' responsibility over water covering astretch of highway pertained only to flood water. The court found thetrial court accurately held the water discussed here was floodwater,rather than surface water, as a matter of law. This finding was largelydue to the admissions of the Raburns themselves, as well as on theclear and unambiguous definitions of surface and floodwaters foundin Texas case law.Since the state of Texas had an exclusive, non-delegable dutypertaining to flood control, the trial court was correct in holding KJIand the Straders did not have a duty of reasonable care pertaining tothe highway adjacent to their land. The Raburns failed to producemore than a scintilla of evidence pursuant to one of the elements of anegligence claim, and, thus, the court affirmed the summary judgmentgranted to KJI and the Straders.Michael SheehanVERMONTTown of Groton v. Agency of Natural Res., 772 A.2d 1103 (Vt. 2001)(affirming the Water Resource Board's denial of the Town of Groton'sstream alteration permit application).In July of 1996, the Town of Groton ("Town") filed an applicationwith the Agency of Natural Resources ("ANR") to alter the Wells Riverso that the Town could repair a dam. The ANR requested moreinformation, as the Town's application was not complete. Before theTown provided the requested information, ice and high waterdestroyed the dam. Since the dam's destruction, the Wells River belowthe dam is considered one of the few high quality habitats for sculpin,trout, and salmon.Volume 5

Raburn v. KJI Bluechip Inv., 50 S.W.3d 699 (Tex. App. 2001)

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Raburn v. KJI Bluechip Inv., 50 S.W.3d 699 (Tex. App. 2001)

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