Court of Appeals of Texas, Third District, Austin
MOTION FOR REHEARING
THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-12-003557, HONORABLE AMY CLARK MEACHUM, JUDGE
Justices Puryear, Goodwin, and Bourland
Olson Bourland, Justice.
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.
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.
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
appellees 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.
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 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).
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. Texas Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004).
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
(1)the failure of a governmental unit to perform an act that
the unit is not required ...