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COURT
OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-095-CV

STEPHANIE DUKES,
INDIVIDUALLY,
APPELLANTS

STEPHANIE DUKES, AS
INDEPENDENT

EXECUTOR OF THE
ESTATE OF MYRON

DUKES, DECEASED,
STEPHANIE DUKES,

AS INDEPENDENT
EXECUTOR OF THE

ESTATE OF
CHRISTOPHER DUKES, DECEASED,

STEPHANIE DUKES, AS
INDEPENDENT

EXECUTOR OF THE
ESTATE OF LAUREN

DUKES, DECEASED,
LOTTIE JAQUESZIAN

DUKES,
INDIVIDUALLY, MYRON JAMAL

DUKES,
INDIVIDUALLY, BY HIS MOTHER

AND NEXT FRIEND,
GLENDA MAGHETT,

ALEXANDRA DEADMON,
INDIVIDUALLY,

FRUENZE DEADMON,
INDIVIDUALLY,

ALEXANDRA DEADMON
AND FRUENZE

DEADMON, AS
INDEPENDENT

CO-EXECUTORS OF THE
ESTATE OF

JUANITRICE DEADMON,
DECEASED,

FRUENZE DEADMON,
JR., INDIVIDUALLY,

BY HIS PARENTS AND
NEXT FRIENDS,

ALEXANDRA DEADMON
AND FRUENZE

DEADMON, CAMERON
DEADMON,

INDIVIDUALLY, BY
HIS PARENTS AND

NEXT FRIENDS,
ALEXANDRA DEADMON

AND FRUENZE
DEADMON, GEMMIA

DEADMON,
INDIVIDUALLY, BY HER

PARENTS AND NEXT
FRIENDS, ALEXANDRA

DEADMON AND FRUENZE
DEADMON

V.

PHILIP JOHNSON/ALAN
RITCHIE
APPELLEES

ARCHITECTS, P.C.,
PHILIP JOHNSON,

RITCHIE & FIORE
ARCHITECTS, P.C.,

ALAN RITCHIE/DAVID
FIORE ARCHITECTS,

P.C., PHILIP
JOHNSON, ALAN RITCHIE,

DAVID FIORE, PETER
JOHANTGEN,

PETER JOHANTGEN
CONSULTING, INC.,

HUITT-ZOLLARS,
INC., EMILE KELLER,

AND AUSTIN
COMMERCIAL, INC.

------------

FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

------------

OPINION

------------

I.  Introduction

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

II.  Factual History

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

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

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

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

III.  Procedural
Background

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

IV.  Standard of Review

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

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

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

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

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

V.  Duty

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

A.
General Negligence Law

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

B.
Premises Liability Law

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

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

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

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

VI.
Johnson/Ritchie and Johantgen

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

A.
Applicable Facts

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

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

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

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

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

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

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

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

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

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

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

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

C.
Premises Liability

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

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

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

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

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

D.
Voluntary Undertaking of a Duty

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

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

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

is suffered because
of the other=s reliance upon the
undertaking.

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

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

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

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

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

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

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

. . . .

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

. . . .

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

. . .
.

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

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

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

E.
Conclusion

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

VII.
Huitt/Keller

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

A.
Applicable Facts

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

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

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

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

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

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

Dukes
argues that because Huitt/Keller had actual knowledge of the hazard at the
mouth of the Active Water Pool in 1994, and yet failed to include such
knowledge in their final report, they should be liable.[14]  Specifically, Dukes argues that
such liability may be imposed because professional codes of ethics require
a professional to report conditions which could endanger public safety and
health.

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

C.
Premises Liability

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

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

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

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

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

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

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

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

D.
Voluntary Undertaking

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

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

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

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

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

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

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

E.
Conclusion

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

VIII.
Austin

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

A.
Applicable Facts

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

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

B.
Analysis

Dukes
argues that Austin was responsible for the negligence of the architects
and engineers whose work it supervised and coordinated because under the
original and amended contracts, Austin possessed the right to control the
work of individuals whom it coordinated.[20]  Thus, because Austin retained
control of their work, Dukes asserts that Austin was responsible for the
errors and omissions of its subcontractors.[21]

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

IX.
Conclusion

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

BOB
MCCOY

JUSTICE

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

DELIVERED:
March 27, 2008

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

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

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

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

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

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

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

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

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

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

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

[10]Dukes contends that
Afactual disputes
regarding the extent and scope of the undertaking by [Johnson/Ritchie and
Johantgen]. . . . at the Water Gardens should be submitted to a
jury for a factual finding.
The issue cannot be decided as a matter of law.@  However, Dukes fails to explain
what the factual disputes are regarding the purported undertaking that
Johnson/Ritchie and Johantgen voluntarily assumed.

[11]Emile Keller is the
Vice-President of Huitt-Zollars (collectively AHuitt/Keller@).

[12]Huitt/Keller was to
Aconduct a detailed
investigation of the site, . . .
document all problem areas@ that were
Acontributing to
multiple systems deterioration,@ and recommend
solutions.

[13]The A30% Preliminary
Review@ was given to the
City when Huitt/Keller  was
one-third of the way through the project.  According to Keller=s deposition
testimony, the purpose of the review was A[t]o get feedback
from the City on the direction in which [Huitt/Keller] [was] going and
[to] get comments from [the City].@

[14]Huitt/Keller=s 1994 final report
stated that A[the Active Water
Pool] is the most prominent, as well as the most hazardous. . .
.A  Emile Keller acknowledged that the
unprotected edges at the stepping stones adjacent to the water falling
into the Active Water Pool were also potentially
hazardous.

[15]Dukes does not
specify the hazard to which they are referring, but we presume that they
are referring to Athe hazard at the
mouth of the Active Water Pool.@

[16]Huitt/Keller=s responsibilities
under their 1994 contract were divided into three phases:  the preliminary assessment phase
(A30% Preliminary
Review@), in which
Huitt/Keller was required to Aidentify the
primary areas of concern@ and Atabulate all
problem areas@; the final
assessment phase, in which they were to Aidentify all
problem areas contributing to multiple systems deterioration@ and to
Aresearch and
develop solution options for each of the problem types@; and, the
assessment report phase, in which Huitt/Keller was to develop a report
addressing each of the various problems and recommend
solutions.

[17]The actual contract
between the City and Huitt/Keller was executed on January 7, 1994,
approximately three weeks after the City Council approved the professional
services contract.

[18]Dukes acknowledges
that the Adangers of the
Active Water Pool existed at the time of both the 1994 assessment by
[Huitt/Keller] and [the] 1999 comprehensive review by [Johnson/Ritchie and
Johantgen].@

[19]Again, Dukes does
not specify the hazard to which they are referring, but we presume that
they are referring to Athe hazard at the
mouth of the Active Water Pool.@

[20]Although Dukes
raises three issues on appeal as to Austin, the only argument that is
analyzed and supported by law is their contention that by retaining
control over their subcontractor=s work, Austin is
responsible for their negligence.
Therefore, this is the argument that we now address.

[21]ASubcontractors@ incorporates
Johnson/Ritchie as well as Johantgen who was retained by Johnson/Ritchie
to act as a consultant in their 1999 assessment of the Water
Gardens.