GRACIE NGUYEN; PATRICK SANCHEZ; TAMARA AND DERRICK O'NEAL, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF DE' ANDRE TATUM, DECEASED; ERICA D. HALL; CURTISHA DAVIS; ARTHUR ZAMARRIPA, AS NEXT FRIEND OF A.Z.; AND WILLIAM JOSMA, Appellants
SXSW HOLDINGS, INC.; SXSW LLC; PATRICK LOWE; TRANSPORTATION DESIGN CONSULTANTS; AND CITY OF AUSTIN, Appellees
Appeal from the 261st District Court Travis County, Texas
Trial Court Cause No. D-1-GN-17-002229
consists of Justices Christopher, Zimmerer, and Hassan.
by Southwest is a music, film, and interactive festival held
annually in downtown Austin. The festival is a major event,
spanning ten days, occupying nearly a hundred venues, and
attracting hundreds of thousands of people. To accommodate
the large numbers of pedestrians attending the festival, many
downtown streets are barricaded and shut down to vehicular
night during the 2014 festival, the driver of a sedan
maneuvered around a barricade and accelerated into a group of
festivalgoers who had assembled in the street. The driver
killed four people and injured many others.
the injured parties and their survivors (collectively, the
"Plaintiffs") filed this civil action, asserting
various claims against the City of Austin and the organizers
of the festival (collectively, the "Defendants").
The trial court disposed of the Plaintiffs' claims
through a series of summary-judgment rulings in favor of the
vacate the portion of the trial court's judgment
disposing of the claims against the City and dismiss those
claims for want of jurisdiction, and we affirm the other
portion of the trial court's judgment because the
remaining Defendants had no duty to protect the Plaintiffs
from the cause of their injuries, which was the driver's
The Criminal Act
driver in this case was a young man by the name of Rashad
Owens. He had been drinking on the night in question, but his
actions were not accidental or the result of driver error.
Quite the opposite, when Owens sped into the crowd of
pedestrians, he did so intentionally and knowingly because he
was fleeing from police.
he struck the pedestrians, Owens cut off a police officer by
making an illegal turn from Twelfth Street onto the
southbound access road of Interstate 35. The officer
activated his emergency lights in an attempt to initiate a
traffic stop. Owens signaled that he would pull over, and he
eventually turned into a gas station at the corner of Ninth
Street. But rather than park in an open spot at the gas
station, Owens maneuvered around the fuel pumps and turned
westbound onto Ninth Street, heading the wrong way down a
Street was empty, and Owens accelerated on the open road. He
then approached his first intersection at Red River Street,
where many traffic control measures were in place because of
nearby festival events. There were uniformed police officers.
There were traffic cones and signs. And there were two types
of barricades. The first type was an A-frame barricade, so
named because its side supports are shaped like the letter
"A." This barricade has a single horizontal board
with reflective orange and white striping. The other type was
a Type III barricade, so named because it has three
horizontal boards (also reflective and striped) that are
stacked along an upright stand and held in place by sandbags.
Because of the stacking, a Type III barricade is much larger
than an A-frame barricade.
traffic control measures were different at each of the four
points of the intersection. At the eastern point of the
intersection (where Owens was driving the wrong way down
Ninth Street), there were no barricades at all, but the
southernmost lane of Ninth Street was cordoned off with
traffic cones. Continuing in a clockwise direction, the
crosswalk at the southern point of the intersection was lined
with Type III barricades, which impeded Owens from turning
left onto Red River. At the western point of the
intersection, A-frame barricades blocked the outermost lanes
of Ninth Street. A middle lane remained open, but a truck had
stopped there, and it was facing eastbound (the correct
direction), which impeded Owens from continuing westbound.
northern point of the intersection along Red River had a
large "Road Closed" sign, two Type III barricades,
and an open "fire lane" on the far right-hand side.
The fire lane was reserved for emergency vehicles and for
residents of an adjacent apartment complex, and it was
blocked with just a traffic cone and a festival attendant who
was screening for anyone trying to enter the apartment
complex. The attendant saw Owens approaching the intersection
and tried to wave Owens down. Rather than stop, Owens made a
right turn into the fire lane, ran over the traffic cone, and
forced the attendant to jump out of the way.
then sped northbound along Red River, where pedestrians had
gathered in the street. Owens hit the gas and barreled into
the crowd at fifty-five miles per hour. He proceeded to the
intersection of Red River and Tenth Street, where he crashed
through a Type III barricade. He then continued on Red River
and hit a bicycle, a motorcycle, and another vehicle. He
eventually disabled his own vehicle near Eleventh Street,
where he attempted to flee on foot, but he was quickly
apprehended by police.
was charged with capital murder and convicted of that offense
in a trial by jury. On direct appeal, he argued that the
evidence was legally insufficient to support his conviction,
but the court of appeals rejected that argument and held that
a reasonable factfinder could have concluded from the
evidence presented that Owens had intentionally and knowingly
caused the deaths of the people he hit with his vehicle.
See Owens v. State, 549 S.W.3d 735, 742-43 (Tex.
App.-Austin 2017, pet. ref'd).
The Civil Action
Plaintiffs filed this civil action against the Defendants and
sought to recover on various claims of negligence, premises
liability, and public nuisance. Broadly speaking, the
Plaintiffs alleged that the Defendants' barricades and
other safety measures were inadequate to protect pedestrians
during the festival. The Plaintiffs also asserted that the
Defendants were liable for the resulting injuries because it
was foreseeable that an errant vehicle would penetrate the
inadequate barricades and then collide with festivalgoers.
Defendants moved for summary judgment on multiple grounds. In
related motions that they all joined, the Defendants argued
that they could not be liable because they owed no duty to
protect the Plaintiffs from Owens's criminal conduct, and
because the criminal conduct was a superseding cause of the
Plaintiffs' injuries, which negated the element of
proximate cause. In a separate motion, the City individually
argued that it was shielded by governmental immunity and that
the trial court lacked subject-matter jurisdiction.
trial court ruled in a series of orders that each of the
Defendants was entitled to summary judgment. The orders did
not state the trial court's reasons. The trial court
later merged the individual orders into a final take-nothing
judgment, from which the Plaintiffs now appeal.
The City's Motions
The trial court implicitly rejected the City's
recital in the final judgment states that the trial court
granted the City's "Traditional and No-Evidence
Motion for Summary Judgment." That recital is latently
ambiguous because the City styled two motions with that exact
same heading. One motion addressed the merits issues of duty
and causation (which the remaining Defendants also addressed
in their motions for summary judgment), and the other motion
addressed the City's governmental immunity (in what could
have been styled as a plea to the jurisdiction). The City
filed the two motions on separate days, and the final
judgment does not identify which of the two motions was
distinction is significant because the Plaintiffs only
addressed the merits issues in their appellants' brief.
They did not address the City's assertion of governmental
immunity, apparently believing that the trial court had
denied the City's plea to the jurisdiction.
course, if the trial court had granted the City's plea to
the jurisdiction, then we would summarily affirm the portion
of the judgment disposing of the claims against the City
because the Plaintiffs failed to address the City's
jurisdictional arguments in their appellants' brief.
See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119,
121 (Tex. 1970) ("The judgment must stand, since it may
have been based on a ground not specifically challenged by
the plaintiff . . . ."). But the City asserts in its
appellee's brief that the trial court "did not feel
it was necessary to rule on the City's jurisdictional
plea because, (1) summary judgment determinations resolved
all of the Plaintiffs' claims against all of the
Defendants equally; and (2) dismissal for lack of
jurisdiction would have been redundant."
cannot confirm the City's assertion because we do not
have the benefit of a hearing transcript or any other sort of
record regarding the trial court's reasoning.
Nevertheless, the City's assertion is consistent with the
language of the final judgment itself. Instead of
"dismissing" the claims against the City, the trial
court specifically ordered that the Plaintiffs "take
nothing," which, as the City has said, indicates that
the trial court ruled on the merits.
trial court has ruled on the merits in a case for which its
subject-matter jurisdiction has been challenged, then the
trial court has implicitly rejected the jurisdictional
arguments. See Thomas v. Long, 207 S.W.3d 334, 339
(Tex. 2006). The effect of this rule is that the Plaintiffs
were not required to address the City's jurisdictional
arguments in their appellants' brief. However, because
jurisdictional arguments can be raised at any time, the City
would not be precluded from reasserting its plea to the
jurisdiction on appeal. See Alfonso v. Skadden, 251
S.W.3d 52, 55 (Tex. 2008) (per curiam). And the City has done
that here in its appellee's brief.
a decision on the merits might be more economical in this
particular case, we have a duty to determine questions of
jurisdiction. See In re City of Dallas, 501 S.W.3d
71, 73 (Tex. 2016) (orig. proceeding) (per curiam). We
therefore begin with the City's jurisdictional arguments.
Our standard of review is de novo. See Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
The trial court should have granted the City's
municipality performs a governmental function, it acts as a
branch of the state and shares in the state's sovereign
immunity, although the municipality's immunity is known
as "governmental immunity." See Wasson
Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427,
429-30 (Tex. 2016). Unless this governmental immunity is
constitutionally or statutorily waived, a trial court lacks
subject-matter jurisdiction over claims against the
municipality. See Suarez v. City of Texas City, 468
S.W.3d 623, 631 (Tex. 2015).
functions are generally defined as those actions performed by
a municipality that are "public in nature" and
"in furtherance of general law for the interest of the
public at large." See City of White Settlement v.
Super Wash, Inc., 198 S.W.3d 770, 776 (Tex. 2006). Not
every action performed by a municipality is performed as a
governmental function. A municipality may perform proprietary
functions, which are acts conducted by the municipality
"in its private capacity, for the benefit only of those
within its corporate limits, and not as an arm of the
government." See Tooke v. City of Mexia, 197
S.W.3d 325, 343 (Tex. 2006). When a municipality acts in a
proprietary, non-governmental capacity, governmental immunity
does not apply. Id.
plea to the jurisdiction, the City points out that the
Plaintiffs have generally complained about the adequacy (or
inadequacy) of police protection, barricades, traffic control
plans, and the maintenance of traffic hazards. Because a
municipality's actions in these matters are statutorily
defined as governmental functions, the City contends that it
retained its governmental immunity and that the trial court
lacked subject-matter jurisdiction over the Plaintiffs'
claims. See Tex. Civ. Prac. & Rem. Code §
101.0215(a)(1), (20), (30), (31) (identifying these matters
in a nonexclusive list of governmental functions).
Plaintiffs respond that the City was actually engaged in a
proprietary function because it was "funding,
maintaining, and operating" the festival alongside the
remaining Defendants. This argument invokes the statutory
authority that a municipality performs a proprietary function
when it "own[s] and operate[s]" an
"amusement." Id. § 101.0215(b)(2).
Assuming for the sake of argument that the festival qualifies
as an amusement, the Plaintiffs concede in a post-submission
letter brief that "the City of Austin does not own
SXSW." Therefore, we cannot conclude that the City
engaged in a proprietary function on that basis.
Plaintiffs also argue in their letter brief that the City
engaged in a proprietary function because the City
implemented its traffic control measures "only for the
patrons of the festival, not the public at large." This
argument also fails, because an action that is statutorily
defined as a governmental function cannot also be a
proprietary function. Id. § 101.0215(c).
the City demonstrated that it was performing a governmental
function-and thus, that it was shielded by governmental
immunity-the Plaintiffs were required to plead a valid waiver
of that immunity. The Plaintiffs' pleadings do not
clearly articulate this waiver. To be sure, the pleadings
contain passing references to the Tort Claims Act, which
provides for such a waiver. For example, Section 101.021
provides that a governmental unit may be liable for
"personal injury and death so caused by a condition or
use of tangible personal or real property if the governmental
unit, were it a private person, be liable to the claimant
according to Texas law." Id. § 101.021(2).
But the Plaintiffs did not expressly invoke this provision,
and mere references to the Tort Claims Act are not sufficient
by themselves to confer jurisdiction on the trial court.
See Tex. Dep't of Criminal Justice v. Miller, 51
S.W.3d 583, 587 (Tex. 2001).
Plaintiffs alleged that the City "did not have the
requisite barriers set up, nor did it ensure that the public
who were present in the area were safe from negligently
operated motor vehicles." They also alleged that the
City "failed to utilize adequate traffic control
measures to protect attendees who were pedestrians or
bicyclists." They criticized the City for not installing
more rigid, water-filled barriers, which presumably are more
effective at stopping errant vehicles.
City contends that even if the Plaintiffs' allegations
could be proper under Section 101.021, they would still be
insufficient to confer jurisdiction because each of the
allegations is based on the City's exercise of its
discretionary powers, and the Tort Claims Act does not apply
to such claims. See Tex. Civ. Prac. & Rem. Code
§ 101.056 (providing that there is no waiver of immunity
for a claim based on the failure of a governmental unit to
perform an act that is not required by law, or on the
decision not to perform an act if the law leaves the
performance or nonperformance of the act to the discretion of
the governmental unit).
Plaintiffs respond that the discretionary-power exemption
does not apply in this case because the pleadings complain
about the City's operational decisions, rather than its
policy decisions. As their sole authority for this point, the
Plaintiffs rely on Simons v. City of Austin, 921
S.W.2d 524 (Tex. App.-Austin 1996, writ denied). That case is
inapposite because it had nothing to do with the installation
of traffic control measures, which courts have routinely
recognized as involving the exercise of a governmental
unit's discretionary powers. See, e.g., Tex.
Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867
(Tex. 2002) (per curiam) ("Likewise, decisions about
installing safety features are discretionary decisions for
which the State may not be sued."); State v.
Miguel, 2 S.W.3d 249, 251 (Tex. 1999) (per curiam)
("Thus, the decision to use barrels and signs, as
opposed to another warning device, was discretionary.");
Wenzel v. City of New Braunfels, 852 S.W.2d 97, 100
(Tex. App.-Austin 1993, no writ) ("We hold that the
City's decision whether to regulate traffic near the
County Fair by the means suggested in the Wenzel's
petition was discretionary.").
generally allow a litigant an opportunity to cure her
pleading defects when the pleadings do not allege enough
jurisdictional facts. See Tex. Ass'n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). But
this is not a case of pleading defects. Here, the pleadings
and the evidence affirmatively show that the Plaintiffs'
factual complaints concern discretionary decisions for which
the City retains immunity from suit. See Tex. Civ.
Prac. & Rem. Code § 101.056. The pleaded facts and
the evidence thus demonstrate that it is impossible for the
Plaintiffs to amend their pleadings to invoke jurisdiction.
See Ramirez, 74 S.W.3d at 867-68.
on the foregoing, we conclude that the City retained its
governmental immunity, which meant that the trial court
should have dismissed the Plaintiffs' claims against the
City for want of jurisdiction.
next question for us to decide is whether the trial court
correctly ruled on the remaining Defendants' motions for
The Remaining Defendants' Motions
prevail on a traditional motion for summary judgment, the
movant must show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law. See Tex. R. Civ. P. 166a(c);
M.D. Anderson Hosp. & Tumor Ins. v. Willrich, 28
S.W.3d 22, 23 (Tex. 2000) (per curiam). When, as here, the
movant is a defendant, summary judgment is proper only if the
defendant conclusively negates at least one essential element
of each of the plaintiff's theories of recovery, or if
the defendant conclusively establishes each element of an
affirmative defense. See Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
of their grounds for summary judgment, the Defendants sought
to negate the element of duty, which is a common element to
all of the Plaintiffs' negligence claims. See Lee
Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782
(Tex. 2001). That element is also essential to the
Plaintiffs' premises claim, which is just "a special
form of negligence." See W. Invs., Inc. v.
Urena, 162 S.W.3d 547, 550 (Tex. 2005). And because the
Plaintiffs pleaded that their nuisance claim arose out of the
"Defendants' negligence in deploying inadequate
traffic control measures," duty is an essential element
of that claim as well. See Crosstex N. Tex. Pipeline,
L.P. v. Gardiner, 505 S.W.3d 580, 607 (Tex. 2016). Thus,
if the Defendants conclusively negated the existence of a
duty, and the Plaintiffs failed to raise a fact question on
duty, then the trial court's summary judgment must be
Defendants argued in their motions that they could not be
liable on the Plaintiffs' claims because the claims arose
out of a criminal act, and generally speaking, a person has
no duty to protect another from the criminal acts of a third
party. This latter point bears some elaboration.
no-duty rule is firmly established in our precedent, but it
is not absolute. See Walker v. Harris, 924 S.W.2d
375, 377 (Tex. 1996). A person who controls a premises has a
duty to use ordinary care to protect an invitee from the
criminal acts of a third party if the person knows or has to
reason to know of an unreasonable and unforeseeable risk of
harm to the invitee. See Lefmark Mgmt. Co. v. Old,
946 S.W.2d 52, 53 (Tex. 1997). Whether this duty exists is a
question of law for the court to decide based on the facts
surrounding the occurrence in question. See Greater
Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525
(Tex. 1990). That analysis typically begins with the
threshold inquiry of foreseeability. See UDR Tex. Props.,
L.P. v. Petrie, 517 S.W.3d 98, 101 (Tex. 2017).
case law has developed two frameworks for establishing
foreseeability. The first framework is set forth in
Timberwalk Apartments, Partners, Inc. v. Cain, 972
S.W.2d 749 (Tex. 1998), which holds that a duty arises when
"the general danger" is foreseeable, "not the
exact sequence of events that produced the harm."
Id. at 756. When the general danger is the risk of
harm from criminal activity, foreseeability ...