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City of Austin v. Frame

Court of Appeals of Texas, Third District, Austin

May 5, 2017

City of Austin, Appellant
v.
Jennifer Frame, Individually, and as Personal Representative of the Estate of John William Griffith; Greg Griffith; Cheryl Burris; and Diana Pulido, Appellees

         ON MOTION FOR REHEARING

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-12-003557, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

          Before Justices Puryear, Goodwin, and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice.

         We withdraw the opinion and judgment dated May 27, 2016, and substitute the following opinion and judgment in their place. We deny appellees' motion for rehearing.

         Appellees Jennifer Frame, Greg Griffith, Cheryl Burris, and Diana Pulido sued the City of Austin under the Texas Tort Claims Act and the recreational-use statute for damages related to an incident allegedly caused by the City's failure to address a safety hazard. See generally Tex. Civ. Prac. & Rem. Code §§ 101.001-.109 (Texas Tort Claims Act); id. §§ 75.002, .003(g) (recreational-use statute). The City filed a plea to the jurisdiction, arguing that its governmental immunity was preserved under the Act by the discretionary-powers exception. See id. § 101.056. The trial court denied the City's plea to the jurisdiction, and the City filed this interlocutory appeal. For the following reasons, we will reverse the district court's order denying the City's plea to the jurisdiction and render judgment dismissing the case.

         BACKGROUND

         The tragic incident that resulted in this lawsuit occurred when Joseph Louis Rosales, who was driving under the influence, drove his eastbound vehicle off of West Cesar Chavez Street where North Lamar Boulevard crosses over West Cesar Chavez, jumping the curb and driving onto the hike-and-bike trail located next to the road. Rosales's vehicle and debris, including a traffic warning sign installed by the City, struck and seriously injured two pedestrians, Colonel John William Griffith and Diana Pulido. Colonel Griffith died as a result of his injuries. Rosales was sentenced to five years' imprisonment for aggravated assault with a deadly weapon.

         The appellees[1] sued Rosales and the City. Their claims against the City included negligence, gross negligence, premises defect, special defect, and breach of duty owed under the recreational-use statute. The appellees alleged that the City (1) failed to safely construct and maintain the trail, (2) was aware of prior instances of vehicles traveling dangerously over the curb onto the trail in the same or substantially same location, and (3) failed to correct or adequately warn of this dangerous condition. The appellees further alleged that the City had policies requiring it to take corrective action after a safety hazard is identified. Accordingly, the appellees alleged, the Parks and Recreation Department's failure to construct a guardrail or barrier was a failure to carry out a ministerial act required by the City's policy of addressing known hazards.

         The City filed a plea to the jurisdiction, asserting that governmental immunity bars the appellees' claims against it because the Act does not waive immunity for discretionary decisions about roadway design and the installation of safety features. The City further asserted that this jurisdictional defect in the appellees' petition[2] could not be cured by amendment because their factual complaints all concern discretionary decisions. In their response to the City's plea to the jurisdiction, the appellees argued that the City does not have immunity because its failure to address an identified safety hazard on the hike-and-bike trail was a negligent failure to implement an existing policy, not an initial policy or design decision for which immunity is preserved. The district court denied the City's plea to the jurisdiction, and the City perfected this accelerated appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); Tex.R.App.P. 28.1(a).

         ANALYSIS

         Statutory framework

         A municipality derives governmental immunity from the State's sovereign immunity when the municipality is performing governmental functions. See City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007). The Texas Tort Claims Act includes, among other things, a limited waiver of governmental immunity from suits alleging personal injury or death caused by the condition or use of property or by premises defects. See Tex. Civ. Prac. & Rem. Code §§ 101.021(2), .022. It also provides that in premises-defect cases, a governmental unit owes the claimant only the duty that a private person owes to a licensee on private property. Id. § 101.022(a), (c). When injury or death results on city-owned recreational land, however, the Texas recreational-use statute further limits the city's duty to that owed by a landowner to a trespasser. Id. § 75.002; see also id. §§ 75.003(g) ("To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under [the Texas Tort Claims Act], this chapter controls."), 101.058 (same). The only duty a premises owner owes a trespasser is the duty not to injure him willfully, wantonly, or through gross negligence. Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997). Thus, a municipality waives immunity under the Texas Tort Claims Act and the recreational-use statute only if it is grossly negligent or if it willfully or wantonly injures the plaintiff.[3] Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004).

         However, the Legislature has specifically preserved immunity against claims arising from discretionary acts and omissions "to avoid judicial review or interference with those policy decisions committed to the other branches of government." Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007). The Act provides that its waiver of immunity does not apply to claims based on:

(1)the failure of a governmental unit to perform an act that the unit is not required ...

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