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           &nbs= p;            = ;       =20 COURT=20 OF APPEALS

           &nbs= p;            = ;            =   =20 SECOND DISTRICT OF TEXAS

           &nbs= p;            = ;            =             &= nbsp; =20 FORT WORTH

 

 

           &nbs= p;            = ;            =    =20 NO. 2-07-095-CV

 

 

STEPHANIE = DUKES,=20 INDIVIDUALLY,            &nbs= p;            = ;     =20       APPELLANTS

STEPHANIE = DUKES, AS=20 INDEPENDENT

EXECUTOR = OF THE=20 ESTATE OF MYRON

DUKES, = DECEASED,=20 STEPHANIE DUKES,

AS = INDEPENDENT=20 EXECUTOR OF THE

ESTATE OF = CHRISTOPHER DUKES, DECEASED,

STEPHANIE = DUKES, AS=20 INDEPENDENT

EXECUTOR = OF THE=20 ESTATE OF LAUREN

DUKES, = DECEASED,=20 LOTTIE JAQUESZIAN

DUKES,=20 INDIVIDUALLY, MYRON JAMAL

DUKES,=20 INDIVIDUALLY, BY HIS MOTHER

AND NEXT = FRIEND,=20 GLENDA MAGHETT,

ALEXANDRA = DEADMON,=20 INDIVIDUALLY,

FRUENZE = DEADMON,=20 INDIVIDUALLY,

ALEXANDRA = DEADMON=20 AND FRUENZE

DEADMON, = AS=20 INDEPENDENT

CO-EXECUTORS OF THE=20 ESTATE OF

JUANITRICE DEADMON,=20 DECEASED,

FRUENZE = DEADMON,=20 JR., INDIVIDUALLY,

BY HIS = PARENTS AND=20 NEXT FRIENDS,

ALEXANDRA = DEADMON=20 AND FRUENZE

DEADMON, = CAMERON=20 DEADMON,

INDIVIDUALLY, BY=20 HIS PARENTS AND

NEXT = FRIENDS,=20 ALEXANDRA DEADMON

AND = FRUENZE=20 DEADMON, GEMMIA

DEADMON,=20 INDIVIDUALLY, BY HER

PARENTS = AND NEXT=20 FRIENDS, ALEXANDRA

DEADMON = AND FRUENZE=20 DEADMON

 

           &nbs= p;            = ;            =             &= nbsp; =20 V.

 

PHILIP = JOHNSON/ALAN=20 RITCHIE            &nbs= p;            = ;            =       =20 APPELLEES

ARCHITECTS, P.C.,=20 PHILIP JOHNSON,

RITCHIE = & FIORE=20 ARCHITECTS, P.C.,

ALAN = RITCHIE/DAVID=20 FIORE ARCHITECTS,

P.C., = PHILIP=20 JOHNSON, ALAN RITCHIE,

DAVID = FIORE, PETER=20 JOHANTGEN,

PETER = JOHANTGEN=20 CONSULTING, INC.,

HUITT-ZOLLARS,=20 INC., EMILE KELLER,

AND = AUSTIN=20 COMMERCIAL, INC.

 

 

           &nbs= p;            = ;            =          =20 ------------

 

          =20 FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

 

           &nbs= p;            = ;            =          =20 ------------

 

           &nbs= p;            = ;            =         =20 OPINION

 

           &nbs= p;            = ;            =          =20 ------------

I.  = Introduction

In=20 eleven issues, Stephanie Dukes, = Individually;=20 Stephanie Dukes, as Independent Executor of the Estate of Myron = Dukes,=20 Deceased; Stephanie Dukes, as Independent Executor of the Estate = of=20 Christopher Dukes; Stephanie Dukes, as Independent Executor of the = Estate=20 of Lauren Dukes, Deceased; Lottie Jaqueszian Dukes, Individually; = Myron=20 Jamal Dukes, Individually, by his Mother and Next Friend, Glenda = Maghett;=20 Alexandra Deadmon, Individually; Fruenze Deadmon, Individually; = Alexandra=20 Deadmon and Fruenze Deadmon, as Independent Co-Executors of the = Estate of=20 Juanitrice Deadmon, Deceased; Fruenze Deadmon, Jr., Individually, = by his=20 Parents and Next Friends, Alexandra Deadmon and Fruenze Deadmon; = Cameron=20 Deadmon, Individually, by his Parents and Next Friends, Alexandra = Deadmon=20 and Fruenze Deadmon; Gemmia Deadmon, Individually, by her Parents = and Next=20 Friends, Alexandra Deadmon and Fruenze Deadmon, (hereinafter = ADukes@)=20 appeals the trial court=3Ds=20 granting of summary judgment to Philip Johnson/Alan Ritchie = Architects,=20 P.C., Philip Johnson, Ritchie & Fiore Architects, P.C., David = G.=20 Whitney and Alan Ritchie, Alan Ritchie/David Fiore Architects, = P.C. and=20 David Fiore (collectively AJohnson/Ritchie@);=20 Huitt‑Zollars, Inc. and Emile Keller (collectively = AHuitt/Keller@);=20 Peter Johantgen and Peter Johantgen Consulting, Inc. (collectively = AJohantgen@);=20 and Austin Commercial, Inc. (hereafter AAustin@). 

II.  Factual = History

This=20 case involves the tragic drowning deaths of Myron Dukes, = Christopher=20 Dukes, Lauren Dukes, and Juanitrice Deadmon on June 16, 2004 in = the Fort=20 Worth Water Gardens.  = No one=20 knows exactly how Lauren and Juanitrice initially entered the = Active Water=20 Pool.  Lauren was = reportedly=20 the first to enter the water, and Juanitrice reportedly tried to = help her=20 out and either fell in or jumped in the pool.  Both Myron and = Christopher Dukes=20 drowned after entering the Active Water Pool in an effort to save = the=20 girls.

Since=20 1974, the Fort Worth Water Gardens, an outdoor urban park and = water=20 sculpture, have been an architectural favorite and a source of = pride for=20 the City of Fort Worth (ACity@).  The City has owned and = controlled=20 the Water Gardens since the 1970s. =20 Prior to this accident, there had been no previous drowning = deaths=20 in the Water Gardens.

The=20 Water Gardens were originally designed by architects Philip = Johnson and=20 John Burgee and were not intended for swimming.  In the 1990s, the City = determined=20 that it would engage in a restoration and renovation of the Water = Gardens=20 in conjunction with the Fort Worth Convention Center Renovation = Project=20 (AProject@).  The City contracted with = Huitt/Keller from 1994-2000 to perform an architectural assessment = of the=20 Water Gardens.  In = 1999, the=20 City also contracted with Johnson/Ritchie and Johantgen as = consulting=20 architects.  In 2001 = through=20 2002, the City contracted with Austin to act as a project manager = for the=20 Project, adjacent to the Water Gardens. =

Shortly=20 after the accident, Dukes filed suit against the City and a number = of=20 architectural firms and engineering firms, as well as individual=20 architects, engineers, and contractors.  Dukes asserted wrongful = death,=20 survival, and bystander claims against multiple defendants.  Dukes settled with the = City in=20 2005.  The remaining = Appellees=20 are comprised of architectural firms, engineering firms, and = individual=20 architects and engineers who have been involved over the years = with the=20 design or restoration of the Water Gardens.

III.  Procedural=20 Background

All=20 of the nonsettling defendants in the underlying case, including = those=20 involved in this appeal, filed motions for summary judgment.  Each of the defendants = asserted=20 that they owed no duty to the Dukes. =20 In addition, Johnson/Ritchie asserted that there was no = proximate=20 cause between their actions and the incident in question and that = the=20 Dukes=3Ds=20 claims were barred by limitations. =20 On April 10, 2007, the trial court granted summary judgment = to all=20 of the aforementioned parties without specifying the grounds=20 therefor.  This = appeal=20 followed.

IV.  Standard of = Review

In=20 a summary judgment case, the issue on appeal is whether the movant = met the=20 summary judgment burden by establishing that no genuine issue of = material=20 fact exists and that the movant is entitled to judgment as a = matter of=20 law.  Tex. R. Civ. P. = 166a(c); Sw.=20 Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); = City of=20 Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.=20 1979).  The burden = of proof is=20 on the movant, and all doubts about the existence of a genuine = issue of=20 material fact are resolved against the movant.  Sw. Elec. Power Co., = 73=20 S.W.3d at 215.

When=20 reviewing a summary judgment, we take as true all evidence = favorable to=20 the nonmovant, and we indulge every reasonable inference and = resolve any=20 doubts in the nonmovant=3Ds=20 favor.  Valence = Operating=20 Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  Evidence that favors = the=20 movant=3Ds=20 position will not be considered unless it is uncontroverted.  Great Am. Reserve = Ins. Co. v.=20 San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. = 1965). But we=20 must consider whether reasonable and fair-minded jurors could = differ in=20 their conclusions in light of all of the evidence presented.  See Wal-Mart Stores, = Inc. v.=20 Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v.=20 Wilson, 168 S.W.3d 802, 822-24 (Tex. = 2005).

The=20 summary judgment will be affirmed only if the record establishes = that the=20 movant has conclusively proved all essential elements of the=20 movant=3Ds=20 cause of action or defense as a matter of law.  Clear Creek = Basin, 589=20 S.W.2d at 678.

A=20 defendant who conclusively negates at least one essential element = of a=20 cause of action is entitled to summary judgment on that = claim.  IHS Cedars Treatment = Ctr. of=20 Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.=20 2004).  Once the = defendant=20 produces sufficient evidence to establish the right to summary = judgment,=20 the burden shifts to the plaintiff to come forward with competent=20 controverting evidence raising a genuine issue of material fact = with=20 regard to the element challenged by the defendant.  Centeq Realty, Inc. = v.=20 Siegler, 899 S.W.2d 195, 197 (Tex. = 1995).

When a=20 trial court=3Ds order=20 granting summary judgment does not specify the ground or grounds = relied on=20 for its ruling, summary judgment will be affirmed on appeal if any = of the=20 theories presented to the trial court and preserved for appellate = review=20 are meritorious.  = Provident=20 Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 = (Tex.=20 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 = (Tex. 1995).=20

V.  Duty

The=20 primary question in this case is whether Johnson/Ritchie, = Johantgen,=20 Huitt/Keller, and Austin owed a duty to the decedents.  =

A.=20 General Negligence Law

The=20 common law doctrine of negligence consists of three elements:  (1) a legal duty owed by = one=20 person to another; (2) a breach of that duty; and (3) damages = proximately=20 resulting from the breach.  Greater Houston Transp. = Co. v.=20 Phillips, 801 S.W.2d 523, 525 (Tex. 1990).  The threshold inquiry in = a=20 negligence case is duty. =20 Id.  The=20 plaintiff must establish both the existence and violation of a = duty owed=20 to the plaintiff by the defendant to establish liability in = tort.  Id.  Whether a duty exists is = a question=20 of law for the court to decide from the facts surrounding the = occurrence=20 in question.  = Timberwalk=20 Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. = 1998);=20 Otis Eng=3Dg=20 Corp. v. Clark,=20 668 S.W.2d 307, 312 (Tex. 1983); Pichardo v. Big Diamond, = Inc., 215=20 S.W.3d 497, 500‑01 (Tex. App.CFort=20 Worth 2007, no pet.).

B.=20 Premises Liability Law

Premises=20 liability is a special form of negligence.  W. Invs., Inc. v. = Urena,=20 162 S.W.3d 547, 550 (Tex. 2005). =20 A premises defect cause of action exists if a person is = injured as=20 a result of a condition of the premises.  City of San Antonio v. = Estrada,=20 219 S.W.3d 28, 32 (Tex. App.CSan=20 Antonio 2006, no pet.).  = Duty=20 is still a threshold inquiry in a premises liability case, and the = duty=20 owed to the claimant depends on the status of a claimant at the = time that=20 the incident giving rise to the lawsuit occurred.  Centeq Realty, Inc. v. = Siegler,=20 899 S.W.2d 195, 197 (Tex. 1995); Urena, 162 S.W.3d at = 550.  This status can be one = of an=20 invitee, licensee, or trespasser.[1]  Alamanza v. = Navar, 225=20 S.W.3d 14, 20 (Tex. App.CEl=20 Paso 2005, no pet.).

Whether=20 a duty exists to keep the premises in a safe condition is a = question of=20 law for the court to decide based on the facts and = circumstances.  Seaway Prods. = Pipeline Co. v.=20 Hanley, 153 S.W.3d 643, 654 (Tex. App.CFort=20 Worth 2004, no pet.).  = If no=20 duty exists, then no legal liability for a premises liability = claim can=20 arise.  Strunk v. = Belt Line=20 Rd. Realty Co., 225 S.W.3d 91, 99 (Tex. App.CEl=20 Paso 2005, no pet.).

A=20 defendant, who was the owner or occupier of the premises at the = time of=20 the injury, must have had control of the premises to be liable = under=20 premises liability. =20 Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, = 324=20 (Tex. 1993).  = Therefore, a=20 plaintiff must prove that the defendant had control over and=20 responsibility for the premises before a duty can be imposed on = the=20 defendant.  See = County of=20 Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).  The control that the = defendant had=20 over the premises must relate to the condition or activity that = caused the=20 injury.  See = Clayton W.=20 Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527-28 (Tex. = 1997).  =

Ordinarily=20 a person who does not own the real property must assume control = over and=20 responsibility for the premises before there will be liability for = a=20 dangerous condition existing on the real property.  City of Denton v. = Page,=20  701 S.W.2d 831, = 835 (Tex.=20 1986); see, e.g., Alexander, 868 S.W.2d at 324 (stating = that a=20 lessee is responsible for those areas adjacent to the demised = premises=20 which it actually controls). =20 However, a private person who has created the dangerous = condition=20 or who has agreed to make safe a known, dangerous condition may be = liable=20 even though not in control of the premises at the time of injury. =  Page, 701 S.W.2d at = 835.=20

VI.=20 Johnson/Ritchie and Johantgen

In=20 issues one through four, Dukes asserts that the trial court erred = by=20 granting summary judgment in favor of Johnson/Ritchie and = Johantgen=20 because  the = evidence=20 demonstrated that there were direct contradictions between the = testimony=20 of Ritchie, Johantgen, and City Supervisor, Richard Zavala; that=20 Johnson/Ritchie and Johantgen owed duties of care to the public; = that=20 Johnson/Ritchie and Johantgen had actual knowledge of the hazard = at the=20 Active Water Pool; and that their alleged breach of duties = contributed to=20 cause the deaths of the decedents.[2]=20

 

A.=20 Applicable Facts

The=20 Water Gardens were originally designed by architects Philip = Johnson and=20 John Burgee in 1974.  = In 1997,=20 the Water Gardens had been in operation for twenty-three years and = was in=20 need of repair and restoration. =20 The City considered changing the south wall of the Water = Gardens=20 and sought the input of Johnson/Ritchie to help preserve the = original=20 design.  In December = 1997,=20 Ritchie was invited to Fort Worth to review the proposed = changes.  Subsequently, Richard = Zavala,=20 director of the City=3Ds=20 Parks and Community Services Department, sent a letter on December = 9,=20 1997, to several individuals, including Johnson/Ritchie, that = summarized=20 the meeting between Ritchie and the City regarding the proposed = changes to=20 the Water Gardens.  = The letter=20 considered possible design activity for the Water Gardens if a = capital=20 improvement was approved by voters the following year.  The letter stated that=20 Johnson/Ritchie would provide a Acomprehensive=20 review@=20 of the Water Gardens, including an assessment of @the=20 overall condition[s and] various systems, i.e. lighting, = mechanical,=20 electrical, plumbing, etc.@

It=20 was not until two years later, on April 22, 1999, that the City = contracted=20 with Johnson/Ritchie to review the Water Garden=3Ds=20 existing conditions and determine whether the park=3Ds=20 features were in compliance with the Americans with Disabilities = Act=20 (AADA@).  Subsequently, = Johnson/Ritchie=20 hired Peter Johantgen to assist in performing the 1999 review of = the Water=20 Gardens.[3]  There was no written = contract=20 between Johantgen and Johnson/Ritchie.  According to his = affidavit=20 testimony, Johantgen=3Ds=20 scope of work was to include a Alimited=20 visual inspection of the Water Gardens to document the existing = conditions=20 of the site as it relates to repair and restoration of the site to = its=20 original condition along with possible ADA issues.@=20

Johantgen=20 performed a visual inspection of the Water Gardens on July 25-27,=20 1999.  Based on=20 Johantgen=3Ds=20 review, Johnson/Ritchie submitted a conditions survey to the City = in=20 October 1999.  The = City never=20 retained Johnson/Ritchie or Johantgen to design or implement any = of the=20 matters identified in the conditions survey. =

B.=20 Applicability of Professional Codes of Ethics in a Duty=20 Analysis

The=20 primary question is whether Johnson/Ritchie and Johantgen owed a = duty to=20 the decedents.  = Dukes first=20 contends that Johnson/Ritchie and Johantgen owed a duty to the = decedents=20 because, as professionals, they were under the ethical obligation = to=20 report any unsafe or hazardous conditions that they observed = during their=20 review of the Water Gardens.

Under=20 Texas law, there is no binding authority to support = Dukes=3Ds=20 proposition that a court must take into consideration professional = codes=20 of ethics when conducting a duty analysis.  The only case that = supports=20 Dukes=3Ds=20 position is the concurring opinion of Winters v. Houston = Chronicle=20 Publishing Co., in which Justice Doggett noted=20 that

[b]oth = civil and=20 criminal statutes reflect myriad expressions of the public policy = to=20 encourage the reporting and correction of activities harmful to = our=20 citizenry.  This = principle=20 is . . . applicable to licensed = professionalsCphysicians,=20 attorneys, and othersCwhich = impose=20 upon them a duty to report unethical conduct in their=20 profession[.]

 

795=20 S.W.2d 723, 731-32 (Tex. 1990) (Doggett, J., concurring) (emphasis = added).  However, = the Texas=20 Supreme Court has more recently observed, albeit in a footnote, = that the=20 ARules=20 [of Professional Conduct] do not define standards of civil = liability of=20 lawyers for professional conduct.@=20  Joe v. Two = Thirty Nine=20 Joint Venture, 145 S.W.3d 150, 159 n.2 (Tex. 2004).  Because we have not = found, nor has=20 Dukes cited, any case law to show the contrary, we determine that=20 professional negligence law has not yet been broadened to include = the=20 evaluation of professional codes of ethics in the determination of = whether=20 a duty is owed.  See id.=20  Therefore, we = conclude=20 that Johnson/Ritchie and Johantgen had no legal duty arising from = their=20 profession as architects to report safety hazards that they may = have=20 discovered in their assessment of the Water Gardens.=20

Dukes=20 next asserts that Johnson/Ritchie and Johantgen owed a duty of = care=20 arising from Johnson/Ritchie=3Ds=20 1999 contractual relationship with the City.[4]  A contract for = professional=20 services gives rise to a duty by the professional to exercise the = degree=20 of care, skill, and competence that reasonably competent members = of the=20 profession would exercise under similar circumstances.  Averitt v. Price = Waterhouse=20 Coopers L.L.P., 89 S.W.3d 330, 334 (Tex. App.CFort=20 Worth 2002, no pet.).  = In=20 contracting for personal services, an architect=3Ds=20 or an engineer=3Ds=20 duty depends on the particular agreement entered into with = his=20 employer.  I.O.I. = Sys.,=20 Inc. v. City of Cleveland, Tex., 615 S.W.2d 786, 790 (Tex.=20 App.CHouston=20 [1st Dist.] 1980, writ. ref=3Dd=20 n.r.e.).  An = engineer or an=20 architect must use the skill and care in the performance of his = duties=20 commensurate with the requirements of his profession and is only = liable=20 for a failure to exercise reasonable care and skill commensurate = with=20 those requirements. =20 Id.

In=20 this case, we look only to the April 22, 1999 contractual = agreement to=20 determine whether Johnson/Ritchie and Johantgen owed a duty to the = decedents.[5]  The scope of=20 Johnson/Ritchie=3Ds=20 duty is determined by this contract. =20 See id. (holding that an architect=3Ds=20 duty depends on the particular agreement entered into with his=20 employer). =20

After=20 reviewing the contract, we determine that contrary to = Dukes=3Ds=20 assertion, the contract did not require Johnson/Ritchie to address = safety=20 issues.  Although = Dukes=20 contends that the 1999 agreement was a Acomprehensive=20 review,@=20 thus making a safety review necessarily a part of=20 Johnson/Ritchie=3Ds=20 responsibilities, our review of the agreement shows that it merely = stated=20 that Johnson/Ritchie would provide Aa=20 review of existing conditions,@=20 including the Apavement,=20 steps, and railings@;=20 the Apools=3D=20 surfaces, plumbing and lighting@;=20 the Achanges=20 to the original Water Gardens for compliance with the = ADA@;=20 and development of Aappropriate=20 repair options and establishing of repair priorities.@[6]=20 Nowhere does the contract specify that Johnson/Ritchie had any = contractual=20 obligation to report or make safe any hazards that they may have = detected=20 in the Water Gardens. =20 Therefore, because Johnson/Ritchie=3Ds=20 duty depends on the contract they entered into with the City, and = because=20 there is no evidence that the contract required Johnson/Ritchie to = report=20 or make safe any hazards detected, we determine that = Dukes=3Ds=20 assertion that Johnson/Ritchie owed a duty to the decedents = arising from=20 Johnson/Ritchie=3Ds=20 contractual relationship with the City is without merit.  See, e.g., Entex, A Div. = of Noram=20 Energy Corp. v. Gonzalez, 94 S.W.3d 1, 11 (Tex. = App.CHouston=20 [14th Dist.] 2002, pet. denied) (holding that gas provider did not = have a=20 negligence duty arising from its contractual relationship because = the=20 contract only required that the gas provider change the meter and = did not=20 require them to inspect, repair, or warn about the water = heater).  =20

Similarly,=20 the summary judgment evidence shows that the scope of=20 Johantgen=3Ds=20 duties did not include a safety review.  Johantgen=3Ds=20 duty was defined by the scope of his agreement with = Johnson/Ritchie to act=20 as a consultant pursuant to Johnson/Ritchie=3Ds=20 1999 contract with the City to provide a review and assessment of = the=20 Water Gardens.  = See I.O.I.=20 Sys. Inc., 615 S.W.2d at 790 (holding that in = contracting for=20 personal services, an architect=3Ds=20 duty depends on the particular agreement entered into with his=20 employer).  The = summary=20 judgment evidence shows that Johantgen was asked by = Johnson/Ritchie to do=20 a limited visual inspection of the Water Gardens to document the = existing=20 conditions as it related to repair and restoration of the site to = its=20 original condition, along with possible ADA issues, and that the = scope of=20 his work did not include a review of the safety issues or hazards = at the=20 site.  Dukes has not = presented=20 any evidence showing that the scope of Johantgen=3Ds=20 work included a safety review. =20 Therefore, because Dukes has failed to present any evidence = showing=20 otherwise, we hold that Johantgen owed no duty to the decedents to = report=20 any safety hazards observed during Johantgen=3Ds=20 1999 review of the Water Gardens.        =20

C.=20 Premises Liability

Dukes=20 next argues that Johnson/Ritchie and Johantgen owed a duty under = premises=20 liability law.  = Dukes first=20 contends that Johnson/Ritchie and Johantgen owed a duty because = they=20 recognized that there were hazards in the Water Gardens and that = drowning=20 was a foreseeable result of such hazards. In their effort to show that a = court may=20 consider the forseeability[7]=20 of harm in determining whether the defendant exercised the duty of = reasonable care, Dukes cites Corbin v. Safeway Stores, = Inc., 648=20 S.W.2d 292 (Tex. 1983). =20 However, the analysis in that case deals exclusively with = the duty=20 that an occupier of premises owes to invitees.  While there is no = dispute that the=20 decedents were invitees, there is also no dispute that the City = was the=20 owner and occupier in exclusive control of the Water Gardens.  Indeed, aside from=20 Johantgen=3Ds=20 1999 walk-through of the Water Gardens, Johnson/Ritchie and = Johantgen=20 never conducted any work at the Water Gardens, nor did the City = ever=20 contact them to implement any of the recommendations contained in = the=20 conditions survey.  = Nor has=20 Dukes presented any evidence indicating that Johnson/Ritchie or = Johantgen=20 had exclusive control over the Water Gardens.  Therefore, whether = Johnson/Ritchie=20 and Johantgen exercised reasonable care to the decedents is of no=20 consequence simply because Johnson/Ritchie and Johantgen were = neither the=20 owners of the Water Gardens, nor were they an occupier in = exclusive=20 control of the premises. =20 See Alexander, 868 S.W.2d at 324; Page, 701 = S.W.2d at=20 835.  Accordingly, = no duty of=20 reasonable care may be imposed upon Johnson/Ritchie and Johantgen = under=20 general premises liability law. =20 See Alexander, 868 S.W.2d at 324; Page, 701 = S.W.2d at=20 835.

If=20 the general rule of premises liability is inapplicable, a party = may be=20 held liable under a premises liability analysis only if the party = has=20 agreed to make safe a known, dangerous condition on the premises = and=20 failed to do so or if the party has created the dangerous = condition.=20  See Page, = 701 S.W.2d=20 at 835.

To=20 determine whether either exception applies, we examine the summary = judgment evidence.  = However,=20 even viewing the evidence in the light most favorable to Dukes, we = determine that neither Johnson/Ritchie nor Johantgen ever = expressly or=20 impliedly agreed to make safe a known, dangerous condition, nor = did they=20 create the dangerous condition.  See id. (evaluating = whether the=20 City of Denton ever expressly or impliedly contracted to remedy = any=20 dangerous condition on the property).  = Johnson/Ritchie=3Ds=20 contract with the City required them to provide only a review of = the Water=20 Gardens=3D=20 existing conditions so that the City could repair and restore the = Water=20 Gardens consistent with the original design and to comply with the = ADA.  The contract = imposed no=20 responsibility upon Johnson/Ritchie to remedy the problems that = they=20 discovered in the course of their review.  Thus, the contract = itself=20 demonstrates that Johnson/Ritchie never expressly agreed to make = safe a=20 known, dangerous condition, and Dukes has not presented any = competent=20 evidence that would raise a genuine issue of material fact showing = otherwise.  See = Centeq=20 Realty, Inc., 899 S.W.2d at 197. =20 Nor has Dukes presented any evidence raising a genuine = issue of=20 material fact that Johnson/Ritchie or Johantgen impliedly agreed = to remedy=20 a known, dangerous condition or that they created the = condition.  =

Furthermore,=20 Dukes=3Ds=20 attempt to analogize this case to Crown Derrick Erectors, Inc. = v.=20 Dew, 117 S.W.3d 526 (Tex. App.CBeaumont=20 2003), rev=3Dd=20 on other grounds, 208 S.W.3d 448 (Tex. 2006) is = misplaced.  In that case, Crown = Derrick left a=20 hole in an elevated rig walkway unguarded except for a small rope=20 barrier.  = Id.  A worker subsequently = fell through=20 the hole to his death.  Id.=20  The court = imposed=20 liability only because Crown Derrick was Aacting=20 to correct a danger it agreed to correct and that arose out of its = own=20 work.@  Dukes argues that just = as=20 liability was imposed on Crown Derrick because it had undertaken = to erect=20 a barrier to protect a dangerous area on its work site, liability = should=20 also be imposed in this case because Johnson/Ritchie and Johantgen = Atook=20 half-steps to address the potential hazard@=20 by reporting their observation of algae growth in the 1999 = report.[8]  However, the imposition = of=20 liability upon Crown Derrick turns on the fact that it was = Aacting=20 to correct a danger it agreed to correct and that arose out = of its=20 own work.@=20  See id. at = 532=20 (emphasis added).  = As we=20 previously discussed, Dukes has not raised a genuine issue of = material=20 fact that Johnson/Ritchie or Johantgen ever expressly or impliedly = agreed=20 to correct any problems discovered in the course of their = review.  Thus, they had no duty = to correct=20 any potential hazard that they observed.

After=20 reviewing the evidence, we determine that Dukes has failed to = raise a=20 genuine issue of material fact that either Johnson/Ritchie or = Johantgen=20 agreed to make safe a known, dangerous condition and failed to do = so or=20 that they created the hazardous condition.  See Page, 701 = S.W.2d at=20 835.  Therefore, we = determine=20 that no duty was imposed on Johnson/Ritchie and Johantgen under = premises=20 liability law.

D.=20 Voluntary Undertaking of a = Duty

We=20 now turn to Dukes=3Ds=20 third proposed source of a negligence duty, an undertaking = theory.  Dukes contends that=20 Johnson/Ritchie=3Ds=20 1999 agreement Aclearly=20 state[s] that the respective assessments were to cover all areas = of the=20 Water Gardens@=20 and that a Aduty=20 may be established by a showing that [Johnson/Ritchie and = Johantgen]=20 undertook inspection of the entire park.@=20

The=20 Texas Supreme Court has stated that Aone=20 who voluntarily undertakes an affirmative course of action for the = benefit=20 of another has a duty to exercise reasonable care that the=20 other=3Ds=20 person or property will not be injured thereby.@=20  Colonial Sav.=20 Ass=3Dn=20 v. Taylor,=20 544 S.W.2d 116, 119 (Tex. 1976); Tex. Woman=3Ds=20 Univ. v. Methodist Hosp.,=20 221 S.W.3d 267, 283‑84 (Tex. App.CHouston=20 [1st Dist.] 2006, no pet.). =20 If one undertakes to make the premises safe for others, he = or she=20 owes a duty to use due care to make the premises safe.  Crooks v. M1 Real = Estate=20 Partners, Ltd., 238 S.W.3d 474, 489‑90 (Tex. = App.CDallas=20 2007, pet. filed). =20 ADue=20 care@=20 is that degree of care which a person of ordinary prudence would = exercise=20 under the same or similar circumstances.  Id.  The court in Colonial=20 Savings cited section 323 of the Second Restatement of Torts, = which=20 provides:

One who = undertakes,=20 gratuitously or for consideration, to render services to another = which he=20 should recognize as necessary for the protection of the = other=3Ds person = or things,=20 is subject to liability to the other for physical harm resulting = from his=20 failure to exercise reasonable care to perform his undertaking, if = (a) his=20 failure to exercise such care increases the risk of such harm, or = (b) the=20 harm

is = suffered because=20 of the other=3Ds = reliance upon the=20 undertaking.

 

See=20 Colonial Sav. Ass=3Dn,=20 544 S.W.2d at 128.  = Thus, to=20 establish a negligent undertaking, a plaintiff must show: (1) the=20 defendant undertook to perform services that it knew or should = have known=20 were necessary for the plaintiff=3Ds=20 protection; (2) the defendant failed to exercise reasonable care = in=20 performing those services; and either (3) the plaintiff relied = upon the=20 defendant=3Ds=20 performance; or (4) the defendant=3Ds=20 performance increased the plaintiff=3Ds=20 risk of harm.  = Torrington=20 Co. v. Stutzman, 46 S.W.3d 829, 839 (Tex. 2000); Crooks, = 238=20 S.W.3d at 489‑90.

In=20 their attempt to persuade this court that Johnson/Ritchie and = Johantgen=20 undertook a duty through their inspection of the Water Gardens, = Dukes=20 cites Torrington Co., 46 S.W.3d at 839.  In that case, Torrington = was sued=20 after a Navy helicopter crashed and killed two Marines.  Id.  Torrington=3Ds=20 subsidiary had manufactured the bearing that had failed in the=20 helicopter.  = Id.  After an earlier crash = of a=20 civilian helicopter with a similar bearing, Torrington had written = a=20 letter to Bell Helicopter stating that it was Amost=20 anxious to participate in any evaluation you are currently=20 performing.@=20  Id.  The letter also stated = that=20 Torrington intended to Acontinue=20 to actively participate with the [National Transportation Safety = Board] in=20 their investigation.@=20  Id.  The Texas Supreme Court = held that=20 Torrington=3Ds=20 letter to Bell Helicopter was an undertaking of some type.  However, the facts about = the scope=20 of the assumed duty were in dispute, and therefore, the issue = should have=20 been determined by the jury.[9]  Id. =

Although=20 Dukes cites Torrington to support their argument that=20 Johnson/Ritchie assumed a duty by undertaking the inspection of = the Water=20 Gardens, we determine that such reliance is misplaced.  Whereas the court in=20 Torrington was able to specifically point to = Torrington=3Ds=20 letter to Bell Helicopter as an undertaking in which Torrington=20 voluntarily broadened its duty, Dukes has failed to demonstrate an = affirmative act undertaken by Johnson/Ritchie or Johantgen that = broadened=20 the scope of their duty. =20 Although Dukes argues that Johnson/Ritchie and=20 Johantgen=3Ds=20 inspection of the Water Gardens was a voluntary undertaking, they = have=20 failed to explain how such action is anything more than the=20 architects=3D=20 complying with their existing contractual obligation.=20

We=20 have already determined that Johnson/Ritchie=3Ds=20 contractual agreement with the City defined the scope of their = duty and=20 that such a duty did not include a safety assessment.[10]<= SPAN=20 style=3D"mso-spacerun: yes">  To hold that = Johnson/Ritchie and=20 Johantgen voluntarily assumed a duty simply by performing an = assessment of=20 the Water Gardens, an action that was in strict compliance with = their=20 contractual obligation, does not comport with the general rule = that an=20 architect=3Ds=20 duty depends on the particular agreement entered into with his=20 employer.  See = I.O.I. Sys.,=20 Inc., 615 S.W.2d at 790. =20 We will not disregard the plain language of the contract = that=20 clearly defines the scope of the architects=3D=20 duty merely because Dukes argues that the voluntary undertaking = doctrine=20 applies. =20

Moreover,=20 even if Dukes presented evidence that Johnson/Ritchie and = Johantgen=20 undertook a duty, which Dukes has not, liability still would not = be=20 imposed upon Johnson/Ritchie and Johantgen under the voluntary = undertaking=20 theory because Dukes has failed to present a genuine issue of = material=20 fact to show that the City relied on Johnson/Ritchie and=20 Johantgen=3Ds=20 1999 assessment of the Water Gardens or shown that their = inspection=20 increased the risk of harm. =20 See Entex, 94 S.W.3d at = 10.

Dukes=20 attempts to show that the City relied on Johnson/Ritchie and=20 Johantgen=3Ds=20 work because both Johnson/Ritchie and Johantgen conceded that it = was=20 appropriate for the City to rely on their work.  Specifically, Dukes = points to the=20 following affidavit testimony to argue that the City relied upon = their=20 professional expertise:

Q: (By = Mr. Ford)=20 But all I=3Dm saying = is the=20 City has the right to rely on [architects and contractors and = engineers=20 whom the City has paid millions of dollars], = true?

 

. . . .=20

 

A: (By = Mr. Ritchie)=20 Well, yeah, but that=3Ds our=20 responsibility.

 

. . . .=20

 

Q: (By = Mr. Ford)=20 . . . [W]ould you agree that it would be appropriate=20 for . . . [the City] to rely upon Phillip Johnson, Alan = Ritchie=20 Architects to perform that function of setting=20 priorities?

 

. . .=20 .

 

A: (By = Mr. Ritchie)=20 Given the criteria that you=3Dve = stated, it would=20 stand to reason that, yes.

 

Although=20 this evidence demonstrates that the City was entitled to rely on=20 Johnson/Ritchie and Johantgen=3Ds=20 assessment, it is not evidence that the City actually relied on = their=20 assessment.  In = contrast, the=20 summary judgment evidence shows that the City never contacted=20 Johnson/Ritchie or Johantgen regarding any of the changes they = suggested,=20 nor did the City implement any of the suggestions or modifications = contained in the 1999 conditions survey.  Even viewing this = evidence in the=20 light most favorable to Dukes, it does not establish reliance, = merely=20 because Dukes has shown that the City could have relied on the=20 architect=3Ds=20 review does not mean that they actually did rely on it.         = Nor=20 has Dukes presented a genuine issue of material fact to show that=20 Johnson/Ritchie and Johantgen=3Ds=20 inspection of the Water Gardens increased the risk of harm.  Dukes has not presented = any=20 evidence to show that any risk of harm from the Water Gardens, and = specifically the Active Water Pool, was greater as a result of=20 Johnson/Ritchie and Johantgen=3Ds=20 1999 assessment than it had been before  it.  See Entex, 94 = S.W.3d at 10=20 (holding that in determining whether there is an increased risk of = harm,=20 we compare the risk of harm resulting from the negligence to that = existing=20 before the undertaking). =20 Although Johnson/Ritchie and Johantgen included their = observation=20 that algae or some other organic growth was detected on the = concrete=20 surfaces in the conditions survey, Dukes has not shown how the = risk of=20 harm was greater because of their observation.  Nor has Dukes presented = any=20 evidence to show that the risk of harm was greater after their = review than=20 it was before the City contracted with them.  =

Because = Dukes has=20 failed to present competent, controverting evidence raising a = genuine=20 issue of material fact that Johnson/Ritchie and Johantgen owed a = duty to=20 the decedents, we determine that the voluntary undertaking rule is = inapplicable.  = Therefore,=20 whether Johnson/Ritchie and Johantgen owed a duty is a question of = law=20 that was properly determined by the trial court.  See  Timberwalk Apartment = Partners,=20 972 S.W.2d at 756.

 

E.=20 Conclusion            &nbs= p;        =20

Thus,=20 based on the summary judgment evidence, we determine that Dukes = has failed=20 to present a genuine issue of material fact that Johnson/Ritchie = or=20 Johantgen owed or assumed any duty to the decedents.  See Centeq Realty, = Inc., 899=20 S.W.2d at 197.  = Thus, the=20 summary judgment evidence conclusively proves, as a matter of law, = that=20 Johnson/Ritchie and Johantgen=3Ds=20 work on the Water Gardens restoration project gave rise to no = legal=20 duty.  Accordingly, = we=20 overrule Dukes=3Ds=20 issues one through four and affirm the trial court=3Ds=20 summary judgment as to Johnson/Ritchie and Johantgen.=20

VII.=20 Huitt/Keller

In=20 issues five through eight, Dukes argues that the trial court erred = by=20 granting summary judgment to Huitt/Keller because the evidence=20 demonstrated that there were direct contradictions between = testimony of=20 Emile Keller[11] = and City Supervisor, Richard Zavala; that Huitt/Keller owed = duties=20 of care to the public; that Huitt/Keller failed to safeguard = dangers; and=20 where Huitt/Keller had actual knowledge of the hazard at the = Active Water=20 Pool that contributed to cause the deaths of the decedents.=20

A.=20 Applicable Facts

On=20 January 7, 1994, the City contracted with Huitt/Keller to perform = an=20 architectural assessment of the Water Gardens.  The contract required=20 Huitt/Keller to provide an assessment of the Water Gardens = and=20 provide the City with a report based on their findings.  The scope of services = included an=20 assessment of the existing civil, structural, mechanical, and = electrical=20 engineering services.[12]<= SPAN=20 style=3D"mso-spacerun: yes">  As part of their = contractual=20 agreement, Huitt/Keller was to submit both a 30% preliminary = review as=20 well as a final report after all reviews of the Water Garden had = been=20 completed.[13]<= SPAN=20 style=3D"mso-spacerun: yes">  The 30% review was = submitted on=20 March 7, 1994, and the final report was delivered on November 1, = 1994.=20

On=20 April 26, 1995, the City again contracted with Huitt/Keller to = perform an=20 assessment of the Water Gardens. =20 The scope of this assessment greatly differed from the 1994 = contract, in that under the terms of the 1995 contract, = Huitt/Keller was=20 to focus solely on designs for the construction of ADA = improvements.  The 1995 contract = describing=20 Huitt/Keller=3Ds=20 services stated that Huitt/Keller was to

[p]erform = architectural and engineering design services for the construction = of ADA=20 improvements to the Fort Worth Water Gardens, to include ramps, a = viewing=20 platform, safety curbs at the Cascade Pool, and handrails for = stairways=20 leading to the Quiet Pool.

 

The=20 1995 assessment did not involve a review of the Active Water = Pool.  On October 13, 1995, = Huitt/Keller=20 delivered its report assessing necessary ADA improvements.        =20

On=20 May 5, 2000, the City again contracted with Huitt/Keller to = participate in=20 a workshop to review planning of future development around the = Water=20 Gardens.  The work=20 Huitt/Keller provided in this instance was very limited in scope = and was=20 only for the participation in a general study regarding future=20 development. =20

B.=20 Applicability of Professional Codes of Ethics in a Duty=20 Analysis

Dukes=20 argues that because Huitt/Keller had actual knowledge of the = hazard at the=20 mouth of the Active Water Pool in 1994, and yet failed to include = such=20 knowledge in their final report, they should be liable.[14]<= SPAN=20 style=3D"mso-spacerun: yes">  Specifically, Dukes = argues that=20 such liability may be imposed because professional codes of ethics = require=20 a professional to report conditions which could endanger public = safety and=20 health.  =20

As=20 we have already determined, under Texas law, there is no binding = authority=20 to support the Dukes=3Ds=20 proposition that a court must take into consideration professional = codes=20 of ethics when determining whether a duty is owed.  See, e.g., Joe, = 145 S.W.3d=20 at 159 n.2 (stating that the Texas Rules [of Professional Conduct] = do not=20 define standards of civil liability of lawyers for professional=20 conduct).  We will = not expand=20 the legal exposure of design professionals beyond their = contractual=20 undertaking, and therefore we determine that no liability may be = imposed=20 upon Huitt/Keller merely because of their role as professional = architects.=20

C.=20 Premises Liability

Dukes=20 next argues that Huitt/Keller owed a duty under a premises = liability=20 analysis because they recognized the hazards existing in the Water = Gardens=20 and that drowning was a foreseeable event.[15]<= SPAN=20 style=3D"mso-spacerun: yes">  However, after reviewing = the=20 evidence in the light most favorable to Dukes, we determine that=20 Huitt/Keller cannot be held liable under the general rule of = premises=20 liability because there is no dispute that Huitt/Keller was = neither the=20 owner nor occupier in exclusive control of the Water Gardens.  Because the prerequisite = to=20 liability has not been met, Huitt/Keller cannot be held liable for = the=20 decedents=3D=20 deaths.  See = Page, 701=20 S.W.2d at 835 (holding that the prerequisite to liability is = whether the=20 party is a Apossessor@=20 or Aowner@=20 of the premises, and if the party does not own, occupy, or = otherwise=20 control the premises, they cannot be held liable for dangerous = conditions=20 on the property). =20

We=20 next evaluate whether Dukes presented any controverting evidence = that=20 Huitt/Keller owed a duty under either of the recognized exceptions = to the=20 general rule of premises liability. =20 Under these exceptions, a party may be held liable under a = premises=20 liability analysis only if the party has agreed to make safe a = known,=20 dangerous condition on the premises and failed to do so, or the = party has=20 created the dangerous condition.  See id.  

To=20 determine whether the first exception applies, we examine the = summary=20 judgment evidence to determine whether Huitt/Keller ever expressly = or=20 implicitly agreed to make safe a known, dangerous condition.  See id. = (evaluating whether=20 the City of Denton ever expressly or impliedly contracted to = remedy any=20 dangerous condition on the property).=20

Huitt/Keller=3Ds=20 first contract with the City was executed on January 7, 1994.  This contract required = them to=20 provide an architectural assessment of the Water Gardens and = included the=20 review of civil, structural, mechanical, and electrical = engineering=20 services.[16]<= SPAN=20 style=3D"mso-spacerun: yes">  Our review shows that = the 1994=20 contract did not include an express provision requiring = Huitt/Keller to=20 conduct a review of safety issues; however, Dukes points to = several=20 extraneous documents that allegedly indicate that a safety review = was=20 within the scope of Huitt/Keller=3Ds=20 duties.  Dukes = directs us to=20 an April 11, 1995 document that recommends that the City execute a = contract with Huitt/Keller. =20 This document references the City Council=3Ds=20 December 14, 1993 approval of a professional services contract = with=20 Huitt/Keller requiring Huitt/Keller to conduct an architectural = assessment=20 of the Water Gardens for Aplanning=20 of remedial projects in order to address safety, = structural,=20 operational, and accessibility issues.@  [Emphasis added.] Dukes = contends=20 that this document is evidence that Asafety=20 was to be a primary concern@=20 in Huitt/Keller=3Ds=20 review of the Water Gardens.

We=20 determine that although this evidence demonstrates that the City = may have=20 initially contemplated that Huitt/Keller was expected to address = safety=20 issues in their assessment of the Water Gardens, the actual = contract=20 between the City and Huitt/Keller imposed no responsibility upon=20 Huitt/Keller to address or remedy safety issues that they = discovered in=20 the course of their assessment.[17]<= SPAN=20 style=3D"mso-spacerun: yes">  Nor did = Huitt/Keller=3Ds=20 1995 and 2000 contractual agreements with the City demonstrate = that=20 Huitt/Keller expressly agreed to make safe a known, dangerous=20 condition.  Rather, = the 1995=20 and 2000 contracts, respectively, required Huitt/Keller only to = determine=20 necessary design services for the construction of ADA improvements = to the=20 Cascade and Quiet Pools as well as review planning of future = developments=20 around the Water Gardens.

A=20 review of each of Huitt/Keller=3Ds=20 contracts with the City demonstrate that Huitt/Keller never = expressly or=20 impliedly agreed to make safe a known, dangerous condition.  Nor has Dukes presented = any=20 evidence showing otherwise. =20 And as we have previously stated, the scope of=20 Huitt/Keller=3Ds=20 duty is determined by their contracts with the City.  See I.O.I. Sys., = Inc., 615=20 S.W.2d at 790 (holding that an architect=3Ds=20 or engineer=3Ds=20 duty depends on the particular agreement entered into with his=20 employer).  = Furthermore, Dukes=20 has failed to present any evidence raising a genuine issue of = material=20 fact that Huitt/Keller created the hazardous condition.  See Centeq Realty, = Inc.,=20 899 S.W.2d at 197.

Moreover,=20 we are unpersuaded by Dukes=3Ds=20 argument that liability should be imposed upon Huitt/Keller = because they=20 took Ahalf-steps=20 to address the potential hazard@=20 by withdrawing their recommendation for safety barriers around the = Active=20 Water Pool in reliance on discussions with the City after = submitting the=20 30% report.  Once = again, Dukes=20 attempts to analogize this case to Crown Derrick Erectors, = Inc.,=20 117 S.W.3d at 526, and once again, we determine that such reliance = is=20 misplaced.  Dukes = has not=20 presented any evidence that Huitt/Keller ever agreed to correct = any=20 problems discovered in their work at the Water Gardens.  Thus, Crown=20 Derrick=3Ds=20 analysis=20 is inapplicable because there is no evidence that Huitt/Keller was = Aacting=20 to correct a danger it agreed to correct and that arose out = of its=20 own work.@=20  See 117 = S.W.3d at 526=20 (emphasis added).  = Therefore,=20 no duty may be imposed upon Huitt/Keller for withdrawing their=20 recommendation for safety barriers.

After=20 reviewing the record, and viewing the evidence in a light most = favorable=20 to Dukes, we determine that Dukes has failed to present = controverting=20 evidence that a duty was imposed upon Huitt/Keller through = premises=20 liability.

D.=20 Voluntary Undertaking

Lastly,=20 Dukes argues that Huitt/Keller can be held liable for the=20 decedents=3D=20 deaths because Huitt/Keller undertook inspection of the Water=20 Gardens=3D=20 entire park pursuant to their 1994 agreement with the City.=20

Once=20 again, we determine that Dukes=3Ds=20 attempt to impose a duty through the voluntary undertaking theory=20 necessarily fails. =20 Specifically, even if Dukes presented evidence that = Huitt/Keller=20 undertook a duty, liability still would not be imposed upon them = because=20 Dukes has failed to present a genuine issue of material fact that = the City=20 relied on Huitt/Keller=3Ds=20 1994 inspection of the Water Gardens or that their inspection of = the Water=20 Gardens increased the risk of harm. =20 See Entex, 94 S.W.3d at 10.=20

Although=20 Dukes asserts that liability may be imposed because Huitt/Keller=20 incorporated a recommendation for safety barriers around the = Active Water=20 Pool in their preliminary report and suggested that the City post = signs or=20 warnings around the Active Water Pool in their final report, Dukes = has not=20 presented evidence that the City relied on these = recommendations.  Indeed, the summary = judgment=20 evidence shows that the City chose not to implement any of=20 Huitt/Keller=3Ds=20 recommendations or any other modification that Huitt/Keller = suggested=20 pursuant to their 1994 assessment of the Water Gardens.  Specifically, the = summary judgment=20 evidence shows that the City rejected these recommendations = because it=20 felt that the Aliability=20 potential [was] not high,@=20 and although the Active Water Pool was Apotentially=20 dangerous,@=20 Apeople=20 have not been falling in.@  Thus, the evidence is = clear that=20 the City did not rely on any alleged undertaking that Huitt/Keller = may=20 have assumed. =20

Furthermore,=20 Huitt/Keller=3Ds=20 inspection of the Water Gardens did not increase the risk of = harm.  Dukes has failed to = present=20 evidence showing that any risk of harm from the Water Gardens was = greater=20 as a result of Huitt/Keller=3Ds=20 assessment than it had been before the assessment.  See Entex, 94 S.W.3d = at=20 10.  In contrast, = the=20 uncontroverted evidence shows that at the time of = Huitt/Keller=3Ds=20 1994 assessment of the Water Gardens, the City knew of the danger = that the=20 Active Water Pool posed.[18]<= SPAN=20 style=3D"mso-spacerun: yes">  For example, the record = shows that=20 in 1994, the City was aware of the dangers posed by the Active = Water Pool=20 but that it reasoned that the Aliability=20 potential [was] not high.@  Moreover, the record = also contains=20 evidence that as early as 1974, the City knew of the dangers posed = by the=20 Active Water Pool.  = Indeed,=20 the City=3Ds=20 attorney expressed his concern to the director of Parks and = Recreation=20 that there were:

dangerous = and=20 hazardous conditions existing in the nature of deep, exposed open = pit=20 areas with steep embankments lubricated with flowing water into = which=20 children of all ages can readily fall and = slide.

 

The=20 record also shows that a safety audit was conducted in 1974 that = alerted=20 the City that Ashould=20 someone fall into [the Active Water Pool,] it would be practically = impossible for them to get out without adequate help.@  This evidence = demonstrates that=20 the risk of harm was equally as great before Huitt/Keller = conducted their=20 assessment in 1994 as it was after their assessment.  And Dukes has not = presented=20 evidence showing otherwise.

Because=20 there is no genuine issue of material fact that the City relied on = Huitt/Keller=3Ds=20 1994 inspection of the Water Gardens or that such inspection = increased the=20 risk of harm, we conclude that Dukes has failed to show that = Huitt/Keller=20 voluntarily undertook a duty through their 1994 inspection of the = Water=20 Gardens.

E.=20 Conclusion

Even=20 viewed in a light most favorable to Dukes, there is insufficient = evidence=20 to create a genuine issue of material fact that Huitt/Keller owed = or=20 assumed any duty to the decedents. =20 Accordingly, we overrule Dukes=3Ds=20 issues five through eight and affirm the trial court=3Ds=20 summary judgment as to Huitt/Keller.

VIII.=20 Austin

 

In=20 issues nine, ten, and eleven, Dukes asserts that the trial court = erred by=20 granting summary judgment in favor of Austin because the evidence=20 demonstrates that there were safety hazards at the Active Water = Pool that=20 were known to Austin=3Ds=20 subcontractors, and yet no action was taken; where Austin owed = duties to=20 the public; and where Austin=3Ds=20 failure to safeguard the hazards at the Active Water Pool = contributed to=20 the cause of decedents=3D=20 deaths.[19] =

A.=20 Applicable Facts

In=20 2001 through 2002, Austin was under contract with the City to act = as the=20 project manager for the Project. =20 Under the original contract, Austin was both the = construction=20 manager and program manager, which meant that it had the = Aexclusive=20 control of, and the exclusive right to control the details of the = work=20 performed@=20 in conjunction with the Project.

After=20 the City began renovating the Convention Center, it became = imperative for=20 the City to also update the Water Gardens.  Subsequently, the City = and Austin=20 entered into two amendments to the original contract.  The second amendment = provided that=20 Austin would contract with Johnson/Ritchie Afor=20 the preparation of a Master Plan for the incorporation of the = Water=20 Gardens into the Project.@  However, none of=20 Austin=3Ds=20 work concerned the Active Water Pool.

B.=20 Analysis

Dukes=20 argues that Austin was responsible for the negligence of the = architects=20 and engineers whose work it supervised and coordinated because = under the=20 original and amended contracts, Austin possessed the right to = control the=20 work of individuals whom it coordinated.[20]<= SPAN=20 style=3D"FONT-SIZE: 13pt; COLOR: black; LINE-HEIGHT: 200%; = mso-bidi-font-family: Univers">  Thus, because Austin = retained=20 control of their work, Dukes asserts that Austin was responsible = for the=20 errors and omissions of its subcontractors.[21] =

We=20 have closely reviewed the record in this case for evidence = supporting=20 Dukes=3Ds=20 contention that liability should be imposed upon Austin; however, = we are=20 unpersuaded by Dukes=3Ds=20 arguments.  Even if=20 Austin=3Ds=20 contract with the City imposed a duty upon it, Austin still could = not be=20 held liable for the negligence of its subcontractors simply = because Dukes=20 failed to present evidence demonstrating that these subcontractors = owed a=20 duty to decedents.  Phillips, 801 S.W.2d = at=20 525.  By failing to = establish=20 the threshold issue of duty, the issue of whether the = subcontractors were=20 negligent could not be reached. =20 Id.  = Therefore,=20 any inquiry into whether Austin may be held liable for its = subcontractors=20 is a nonissue.  = Accordingly,=20 we overrule Dukes=3Ds=20 issues nine, ten, and eleven and affirm the trial = court=3Ds=20 summary judgment as to Austin.

 

 

 

 

 

 

 

 

 

IX.=20 Conclusion

 

Because=20 Dukes has failed to present competent, controverting evidence = raising a=20 genuine issue of material fact that Johnson/Ritchie, Johantgen,=20 Huitt/Keller, or Austin owed a duty to the decedents, we affirm = the trial=20 court=3Ds=20 summary judgment as to each of these parties.  See Centeq Realty, = Inc.,=20 899 S.W.2d at 197.

 

BOB=20 MCCOY

JUSTICE

 

PANEL=20 B:   LIVINGSTON, = WALKER,=20 and MCCOY, JJ.

DELIVERED:=20 March 27, 2008

 

 

[1]It is = undisputed=20 that the four individuals, whose deaths were the genesis of this = case,=20 were invitees.

[2]We will=20 collectively refer to Appellees Philip Johnson/Alan Ritchie = Architects,=20 P.C., Philip Johnson, Ritchie & Fiore Architects, P.C., Alan = Ritchie,=20 individually, and David. G. Whitney, who is the executor of Philip = Johnson=3Ds estate = as=20 AJohnson/Ritchie@ for the = sake of=20 clarity.  Similarly, = although=20 Peter Johantgen and Peter Johantgen Consulting, Inc. are separate = parties,=20 we will collectively refer to them as AJohantgen.@

We note = that Dukes=20 refers to all of the aforementioned parties as the ANew York=20 Architects@ in = issues one=20 through four.  = However, Peter=20 Johantgen and Peter Johantgen Consulting, Inc., together, are = represented=20 by different counsel than the other parties in this section, and = filed=20 their own, distinct motions for summary judgment.  For that reason, we will = not collectively refer to these parties as the ANew York=20 Architects@; = however, we will=20 evaluate Dukes=3Ds = assertions as to=20 Johnson/Ritchie and Johantgen at the same time.  =

[3]Johantgen = had=20 previously worked for Philip Johnson, Ritchie & Fiore = Architects, P.C.=20 from 1992-1997.  Mr. = Fiore=20 resigned in 1996, and thereafter the firm changed its name to = Philip=20 Johnson/Alan Ritchie Architects, P.C. (AJohnson/Richie@).=20

[4]Although = Dukes=20 specifically contends that a duty arose out of = Johnson/Ritchie=3Ds 1999 = contract=20 with the City, throughout their brief Dukes also argues that the = 1999=20 contract is only one of two documents that defines the = scope of the=20 architects=3D = services, the=20 other document being a 1997 letter from Richard Zavala, Director = of the=20 Parks and Community Services Department, to John Robinson, = Executive=20 Director of the Amon G. Carter Foundation.  The 1997 letter included = a summary=20 of the meeting that took place between the department=3Ds staff, = Ritchie,=20 and Emile Keller, who is Vice-President of Appellee Huitt/Keller, = where=20 they discussed possible design changes to the Water Gardens that = would be=20 effectuated if a capital improvement was approved by voters the = following=20 year.  =

In our = review of=20 the scope of Johnson/Ritchie=3Ds and=20 Johantgen=3Ds duties, = we will=20 not examine the 1997 letter because it does not constitute a valid = contract and, therefore, does not define the scope of = responsibility.=20 See Hubbard v. Shankle, 138 S.W.3d 474, 481 (Tex. = App.CFort = Worth 2004,=20 pet. denied) (holding that to constitute a valid contract, there = must be=20 an offer, acceptance, meeting of the minds, each party=3Ds consent = to the=20 terms, execution, and delivery of the contract with the intent = that it be=20 mutual and binding).  = Indeed,=20 Richard Zavala agreed that the 1997 letter was not the contract = with=20 Johnson/Ritchie; instead, the actual contract was negotiated and = signed in=20 the 1999 agreement.  = Thus, in=20 evaluating whether a contractual duty existed, we look only to the = April=20 22, 1999 agreement among the parties.

[5]It is = undisputed=20 that the April 22, 1999 agreement constituted a valid contract = between the=20 City and Johnson/Ritchie.

[6]The 1997 = letter=20 summarizing the meeting between Ritchie, Zavala, and others = included the=20 words Acomprehensive=20 review.@  However, the 1999 = contract=20 contains no such language.  = Although Dukes attempts to intermingle the language of the = two=20 documents to provide support for their contention that the scope = of=20 Johnson/Ritchie=3Ds review=20 necessarily included a safety analysis, we have already stated = that we=20 will only examine the 1999 contractual agreement to determine the = scope of=20 Johnson/Ritchie=3Ds = responsibilities.=20

[7]As = pointed out by=20 Johantgen, foreseeability is part of causation, and his motion for = summary=20 judgment was based on no duty, not a lack of causation.=20

[8]Dukes = asserts that=20 Johantgen observed a hazard in the form of Aalgae or = growth or=20 fungus or something like this@ on the = stepping=20 stones around the Active Water Pool that created a slipping risk = for falls=20 into the pool and that liability should be imposed because = Athe=20 architect=3Ds report = only made=20 an obscure reference to cleaning of organic deposits[] and [said] = nothing=20 about a drowning hazard.@

[9]The court = held that=20 the jury should have been instructed that Torrington was negligent = only if=20 (1) Torrington undertook to perform services that it knew or = should have=20 known were necessary for the plaintiffs=3D = protection, (2)=20 Torrington failed to exercise reasonable care in performing those=20 services, and either (3) the Navy relied upon = Torrington=3Ds = performance, or=20 (4) Torrington's performance increased the plaintiffs=3D risk of = harm.  Id. at = 838‑39.=20

[10]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">Dukes = contends that=20 Afactual = disputes=20 regarding the extent and scope of the undertaking by = [Johnson/Ritchie and=20 Johantgen]. . . . at the Water Gardens should be = submitted to a=20 jury for a factual finding. =20 The issue cannot be decided as a matter of law.@  However, Dukes fails to = explain=20 what the factual disputes are regarding the purported undertaking = that=20 Johnson/Ritchie and Johantgen voluntarily assumed.=20

[11]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">Emile = Keller is the=20 Vice-President of Huitt-Zollars (collectively AHuitt/Keller@).

[12]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: = Univers">Huitt/Keller was to=20 Aconduct a = detailed=20 investigation of the site, . . . =20 document all problem areas@ that = were=20 Acontributing to=20 multiple systems deterioration,@ and = recommend=20 solutions.

[13]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">The = A30% = Preliminary=20 Review@ was = given to the=20 City when Huitt/Keller  = was=20 one-third of the way through the project.  According to = Keller=3Ds = deposition=20 testimony, the purpose of the review was A[t]o get = feedback=20 from the City on the direction in which [Huitt/Keller] [was] going = and=20 [to] get comments from [the City].@

[14]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: = Univers">Huitt/Keller=3Ds 1994 = final report=20 stated that A[the = Active Water=20 Pool] is the most prominent, as well as the most = hazardous. . .=20 .A  Emile Keller = acknowledged that the=20 unprotected edges at the stepping stones adjacent to the water = falling=20 into the Active Water Pool were also potentially=20 hazardous.

[15]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">Dukes = does not=20 specify the hazard to which they are referring, but we presume = that they=20 are referring to Athe = hazard at the=20 mouth of the Active Water Pool.@

[16]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: = Univers">Huitt/Keller=3Ds = responsibilities=20 under their 1994 contract were divided into three phases:  the preliminary = assessment phase=20 (A30% = Preliminary=20 Review@), in = which=20 Huitt/Keller was required to Aidentify = the=20 primary areas of concern@ and = Atabulate = all=20 problem areas@; the = final=20 assessment phase, in which they were to Aidentify = all=20 problem areas contributing to multiple systems = deterioration@ and to=20 Aresearch = and=20 develop solution options for each of the problem types@; and, = the=20 assessment report phase, in which Huitt/Keller was to develop a = report=20 addressing each of the various problems and recommend=20 solutions.

[17]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">The = actual contract=20 between the City and Huitt/Keller was executed on January 7, 1994, = approximately three weeks after the City Council approved the = professional=20 services contract.

[18]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">Dukes = acknowledges=20 that the Adangers = of the=20 Active Water Pool existed at the time of both the 1994 assessment = by=20 [Huitt/Keller] and [the] 1999 comprehensive review by = [Johnson/Ritchie and=20 Johantgen].@=20

[19]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">Again, = Dukes does=20 not specify the hazard to which they are referring, but we presume = that=20 they are referring to Athe = hazard at the=20 mouth of the Active Water Pool.@

[20]<= SPAN=20 style=3D"FONT-SIZE: 13pt; mso-bidi-font-family: Univers">Although = Dukes=20 raises three issues on appeal as to Austin, the only argument that = is=20 analyzed and supported by law is their contention that by = retaining=20 control over their subcontractor=3Ds work, = Austin is=20 responsible for their negligence. =20 Therefore, this is the argument that we now address.=20

[21]<= SPAN=20 style=3D"FONT-SIZE: 13pt; FONT-FAMILY: 'WP TypographicSymbols'; = mso-bidi-font-family: Univers; mso-ascii-font-family: Univers; = mso-hansi-font-family: Univers; mso-char-type: symbol; = mso-symbol-font-family: 'WP TypographicSymbols'">ASubcontractors@ = incorporates=20 Johnson/Ritchie as well as Johantgen who was retained by = Johnson/Ritchie=20 to act as a consultant in their 1999 assessment of the Water=20 = Gardens.

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