                                                                                      ACCEPTED
                                                                                  03-15-00292-CV
                                                                                          5786410
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             6/23/2015 1:07:57 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                           No. 03-15-00292-CV

                                                                  FILED IN
                                                           3rd COURT OF APPEALS
                       In the Third Court of Appeals           AUSTIN, TEXAS
                               Austin, Texas               6/23/2015 1:07:57 PM
                                                             JEFFREY D. KYLE
                                                                   Clerk

                THE CITY OF AUSTIN, Defendant – Appellant

                                     v.

      JENNIFER FRAME, INDIVIDUALLY, AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JOHN WILLIAM GRIFFITH, GREG
 GRIFFITH, CHERYL BURRIS AND DIANA PULIDO, Plaintiffs - Appellees


                Appeal from Cause No. D-1-GN-12-003557
            53rd Judicial District Court of Travis County, Texas


                        BRIEF OF APPELLANT



                       KAREN M. KENNARD, CITY ATTORNEY
                       MEGHAN L. RILEY, CHIEF, LITIGATION
                       CHRIS EDWARDS
                       Assistant City Attorney
                       State Bar No. 00789276
                       Chris.edwards@austintexas.gov
                       City of Austin-Law Department
                       P. O. Box 1546
                       Austin, Texas 78767-1546
                       Telephone: (512) 974-2419
                       Facsimile: (512) 974-1311

                       COUNSEL FOR DEFENDANT - APPELLANT
                  IDENTITY OF PARTIES AND COUNSEL

Defendant - Appellant
The City of Austin

Plaintiffs - Appellees
Jennifer Frame, Individually, and as Personal Representative of the Estate of John
William Griffith, Greg Griffith, Cheryl Burris and Diana Pulido

Counsel for Defendant – Appellant
Chris Edwards
Assistant City Attorney
State Bar No. 00789276
chris.edwards@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2419
Facsimile: (512) 974-1311

Counsel for Plaintiffs - Appellees
Sean E. Breen
State Bar No.00783715
sbreen@howrybreen.com
HOWRY BREEN & HERMAN, L.L.P.
1900 Pearl Street
Austin, TX 78705-5408
Telephone: (512) 474-7300
Facsimile: (512) 474-8557

Mike Davis
State Bar No. 05549500
mdavis@slackdavis.com
SLACK & DAVIS, L.L.P.
2705 Bee Cave Road, Suite 220
Austin, Texas 78746
Telephone: (512) 795-8686
Facsimile: (512) 795-8787



                                         ii
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS .................................................................................... iii, vi

INDEX OF AUTHORITIES................................................................................ v, vi

RECORD REFERENCES .........................................................................................1

STATEMENT OF THE CASE ..................................................................................1

ORAL ARGUMENT IS NOT REQUESTED ...........................................................2

ISSUE PRESENTED .................................................................................................2

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................3

ARGUMENT .............................................................................................................5

         1.       The City Has Governmental Immunity for Discretionary Decisions
                  Regarding Roadway Design and Installation of Safety Features. ... 5

                  A.       State Law Makes Decisions Regarding Roadway Design and
                           Installation of Safety Features Discretionary..............................7

                           1.       Municipalities Have Discretion to Make Decisions
                                    Regarding Roadway Design and Installation of Safety
                                    Features. ..........................................................................10

                           2.       The City Exercised its Discretion Regarding Installation
                                    of Additional Safety Features on the Roadway. .............12

                           3.       The Trial Court Lacked Jurisdiction to “Second Guess”
                                    the City’s Roadway Design and Installation of Safety
                                    Features. ..........................................................................14



                                                          iii
                  B.       The City Does Not Have a Policy Mandating the Installation
                           of Additional Safety Features on the Roadway. .......................16

                           1.        Plaintiffs Failed to Affirmatively Establish the Trial
                                     Court’s Subject Matter Jurisdiction. ...............................17

                                     a.       Plaintiffs Failed to Meet Their Burden to
                                              Overcome the City’s Governmental Immunity. ... 17

                                     b.       The City Employee’s Report Fails to Identify
                                              a Policy Mandating Installation of Additional
                                              Safety Features on the Roadway. ......................... 21

                           2.        Plaintiffs fail to Identify a Ministerial Act Leaving
                                     Nothing to the City’s Exercise of Discretion. ................21

CONCLUSION AND PRAYER .............................................................................23

CERTIFICATE OF SERVICE ................................................................................24

CERTIFICATE OF COMPLIANCE .......................................................................25

APPENDIX ..............................................................................................................26




                                                           iv
                                     INDEX OF AUTHORITIES

Cases

Bellnoa v. City of Austin,
 894 S.W.2d 821 (Tex. App.—Austin 1995, no writ) .............................. 19, 20, 21

Bland I.S.D. v. Blue,
 34 S.W.3d 547 (2000) .............................................................................................8

Burnett v. Texas Highway Dep’t.,
 694 S.W.2d 210 (Tex.App.—Eastland 1985, writ ref’d n.r.e.) ............................10

City of El Paso v. Ayoub,
 787 S.W.2d 553 (Tex. App.—El Paso 1990, writ denied) ...................................10

City of Lancaster v. Chambers,
 883 S.W.2d 650 (Tex. 1994) .................................................................. 4, 6, 21, 22

Horizon/CMS Healthcare Corp. v. Auld,
 34 S.W.3d 887 (Tex. 2000) ...................................................................................17

Maxwell v. Texas Dep’t. of Transp.,
 880 S.W.2d 461 (Tex. App.—Austin 1994, writ denied) .....................................15

Price v. U.S.,
 174 U.S. 373 (1899) ................................................................................................5

Stanford v. State Dep’t of Highways & Pub. Transp.,
  635 S.W.2d 581 (Tex.App.—Dallas 1982, writ ref’d n.r.e.) ................................10

State v. Miguel,
  2 S.W.3d 249 (Tex. 1999) ........................................................................ 3, 6, 9, 15

State v. Rodriguez,
  985 S.W.2d 83 (Tex. 1999) .............................................................................. 5, 11

State v. Terrell,
  588 S.W.2d 784 (Tex. 1979) .................................................................................15

                                                          v
Stephen F. Austin State Univ. v. Flynn,
  228 S.W.3d 653 (Tex. 2007) ............................................................ 6, 9, 13, 14, 15

Tex. Dep’t of Transp. v. Hathorn,
 2012 WL 2989235 (Tex.App.—Austin 2012) ............................................... 1, 7, 9

Texas Dep’ t. of Transp. v. Ramirez,
 74 S.W.3d 864 (Tex. 2002) ...................................................... 3, 10, 11, 12, 20, 22

Texas Dep’t of Transp. v. Able,
 35 S.W.3d 608 (Tex. 2000) .....................................................................................5

Texas Dep’t. of Parks & Wildlife v. Miranda,
 133 S.W.3d 217 (Tex. 2004) .................................................................... 17, 18, 19

Texas Dep’t. of Transp v. Jones,
 8 S.W.3d 636 (Tex. 1999) .....................................................................................17

Wenzel v. City of New Braunfels,
 852 S.W.2d 97 (Tex. App.—Austin 1993, no writ) ................................ 10, 11, 12

Zambory v. City of Dallas,
 838 S.W.2d 580 (Tex. App.—Dallas 1992, writ denied) .....................................21
Statutes

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011)..................................6

Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West 2011) ....................... 3, 6, 9, 18

Tex. Civ. Prac. & Rem. Code Ann.§§ 101.051–067 (West 2011) .............................6




                                                       vi
                                  RECORD REFERENCES

         Clerk’s Record. Citations to the Clerk’s Record will be to “CR” with the

page number following, e.g., “CR 7.”

         Appendix. References to materials included in the Appellant’s Appendix are

referred to as “AA” with the page number following, e.g., “AA 1.”

                                STATEMENT OF THE CASE

         Plaintiffs sue for negligence seeking damages for wrongful death and

personal injuries against Joseph Rosales and the City of Austin stemming from a

vehicle/pedestrian accident.1 CR 14. The City’s answer asserted the affirmative

defense of governmental immunity pursuant to the Texas Tort Claims Act, among

other things. CR 22–23. The City filed a plea to the jurisdiction establishing that

the trial court lacked subject matter jurisdiction because governmental immunity is

not waived for discretionary decisions regarding roadway design and installation of

safety features. CR 25. At the hearing on the plea, Plaintiffs served their response

on the City asserting that the City’s negligence was a failure of policy



1
    Plaintiffs’ First Amended Original Petition implies liability for a premises defect, special
    defect, or under the recreational use statute, but fails to affirmatively plead a cause of action
    (“City of Austin may be held to answer in a court of law”), or plead any facts to show how the
    City’s decision regarding roadway design and installation of safety features constitute premises
    or special defects, or violate the recreational use statute to show a waiver of governmental
    immunity. CR 17–18. Tex. Dep’t of Transp. v. Hathorn, 2012 WL 2989235 *3 (Tex.App.—
    Austin 2012) (“claimants may not use creative pleading to recast an act of discretionary
    roadway design as a premise defect or special defect claim”).


                                                  1
implementation not a failure of policy formulation waiving immunity.2 CR 33.

The district court denied the City’s plea to the jurisdiction without stating the basis

or its ruling. CR 66, AA1. The City takes accelerated appeal of that Order. CR

67.

                       ORAL ARGUMENT IS NOT REQUESTED

         Oral argument is not necessary because this Court has already decided the

central issue, that roadway design and installation of safety features are

discretionary decisions for which governmental immunity is not waived under the

Texas Tort Claims Act.

                                         ISSUE PRESENTED

         Governmental immunity deprived the trial court of subject matter

jurisdiction under the Texas Tort Claims Act over the City of Austin’s exercise of

discretion regarding roadway design and installation of safety features.

                                  STATEMENT OF FACTS

         On May 7, 2012, Defendant Joseph Rosales was driving under the influence

east on West Cesar Chavez St. when he jumped the curb near North Lamar Blvd.,

and veered onto the Hike and Bike Trial bordering Lady Bird Lake, striking John




2
    Plaintiffs’ Response to Defendant’s Plea to the Jurisdiction was served on the City at the
    hearing; therefore, the trial court did not have the benefit of a reply from the City on which to
    base its ruling.
                                                  2
Griffith and Diane Pulido.3 CR 13. John Griffith’s daughter, Plaintiff Jennifer

Frame, was walking with her father and witnessed the accident but escaped injury,

and is joined by her siblings Greg Griffith and Cheryl Burris in this suit. CR 13.

John Griffith died from injuries sustained in the accident, and Plaintiff Diana

Pulido sustained serious injuries. CR 13.

                           SUMMARY OF THE ARGUMENT

         The Texas Tort Claims Act preserves governmental immunity for

discretionary decisions regarding roadway design and installation of safety

features, regardless of the causes of action alleged. Tex. Civ. Prac. & Rem. Code

Ann. § 101.056 (West 2011). Texas courts have clearly stated that design of

roadways, and specifically, the safety precautions, or lack thereof, included in

those designs, are discretionary policy decisions of the government, from which

there is absolute immunity from suit. Texas Dep’ t. of Transp. v. Ramirez, 74

S.W.3d 864, 867 (Tex. 2002). The City of Austin exercised that discretion decades

ago when it designed West Cesar Chavez St., and continued to exercise that

discretion by not installing additional safety features at the accident site. The Texas

legislature having reserved those decisions to a municipality’s discretion, the trial

court lacked subject matter jurisdiction to “second guess” the adequacy of the

decisions the City reached in this case. State v. Miguel, 2 S.W.3d 249, 251 (Tex.
3
    Joseph Rosales was sentenced to five years imprisonment for aggravated assault with a deadly
     weapon for jumping the curb and striking two pedestrians. CR 25.

                                                3
1999).

         No City policy mandates that the City install additional safety features on

the roadway, or the trail at the accident site, or elsewhere.4 Plaintiffs’ assertion of

a City policy relies on a report written by a City employee, which vaguely

mentions a Parks and Recreation Department “policy” regarding hazards in

general. Plaintiffs failed to specifically identify the alleged policy referenced by

the City employee, the date the policy was issued, the period covered by the policy,

the policymaker, or the additional safety features to be installed at the accident site

mandated by the policy with “precision,” to overcome governmental immunity for

discretionary decisions. To allow such a broad generality to confer jurisdiction on

trial courts would undermine the legislative intent behind the limited waiver of

governmental immunity in the Texas Tort Claims Act. Even if a policy did exist as

alleged, Plaintiffs failed to show that this generic policy to ensure safety in general

at all recreational facilities in any way identified the act(s) to be performed at the

accident site so as to make implementation of the policy “ministerial acts that

require obedience to orders.” City of Lancaster v. Chambers, 883 S.W.2d 650, 654

(Tex. 1994).

         A liberal construction of Plaintiffs’ pleadings and jurisdictional evidence

4
    To circumvent the City’s governmental immunity, Plaintiffs mischaracterize the danger over
    which they bring suit as the trail, yet their factual allegations establish that the only danger is
    from the adjoining roadway, specifically cars veering off the roadway in violation of traffic
    laws. CR 34.
                                                   4
shows, at most, that the purported policy only recommended that the Parks and

Recreation Department identify hazards, and make a decision on how to deal with

hazards. Plaintiffs’ jurisdictional evidence establishes that the “MANAGEMENT

RESPONSE – ACTION PLAN,” submitted by the department in response to the

City employee’s report in no way references the accident or the accident site,

merely restating the overall “goal” that the “Department is committed to ensuring

parks and recreational facilities are safe for all to enjoy.” CR 65. The broad

statement of a departmental goal to make all recreational facilities safe “requires

exercising judgment and the law does not mandate performing the act with such

precision that nothing is left to discretion or judgment,” overcoming governmental

immunity. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).

                                  ARGUMENT

I.    The City Has Governmental Immunity for Discretionary Decisions
      Regarding Roadway Design and Installation of Safety Features.

      The principle of sovereign immunity is deeply imbedded in the Anglo-

American common law system. The principle is simple: the government is not

liable for suit unless it consents.   Price v. U.S., 174 U.S. 373, 375 (1899).

Therefore, as a general rule, states and their subdivisions have sovereign and

governmental immunity unless the state expressly waives that immunity. Texas

Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). The Texas Tort Claims

Act includes a limited waiver of sovereign immunity for “personal injury and death

                                        5
so caused by a condition or use of tangible personal or real property if the

government unit would, were it a private person, be liable to the claimant

according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West

2011). While the waiver in section 101.021 reads broadly, the legislature expressly

limited the waiver in Subchapter C of Chapter 101, thus maintaining the state’s

well established sovereign immunity for certain acts. Id. §§ 101.051–067. Most

pertinently, sovereign immunity is not waived under the Texas Tort Claims Act for

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

required by law to perform; or (2) a government unit’s decision not to perform an

act or on its failure to make a decision on the performance of an act if the law

leaves the performance or non-performance of the act to the discretion of the

governmental unit.” Id. § 101.056.

      The Texas Supreme Court has interpreted section 101.056 as preserving

sovereign immunity for the discretionary acts of the state. Stephen F. Austin State

Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007). Courts determine if a

government activity is discretionary as a matter of law. Miguel, 2 S.W.3d at 251.

Only if the law mandates action by the City with such precision so as to leave

nothing to the exercise of discretion or judgment does the City waive governmental

immunity. Chambers, 883 S.W.2d at 654.




                                        6
      First, the Texas Supreme Court has determined as a matter of law that

municipalities and other government entities are protected by immunity from suits

regarding roadway design and the installation of safety features. Second, no City

policy mandates installation of additional safety features on West Cesar Chavez

St., much less with “precision,” so as to make the act of installing additional safety

features ministerial.

      A.     State Law Makes Decisions Regarding Roadway Design and
             Installation of Safety Features Discretionary.
      Case law clearly establishes that municipalities, like any other governmental

unit, have discretion regarding roadway design and whether or not to install safety

features. At the time of this accident, the City had exercised that discretion with

respect to the design of West Cesar Chavez St., and the safety features

incorporated into the roadway design. The City’s decisions represent the

formulation of policy, not the implementation of policy, and the trial court lacked

jurisdiction to exercise judicial scrutiny over the adequacy of the City’s decisions.

Tex. Dep’t of Transp. v. Hathorn, 2012 WL 2989235 at *8, n. 8 (Tex. App.—

Austin 2012, no pet.) (“Thus, TxDot’s design decisions about state highway cross

slopes involve performance of its legislatively delegated function and subjecting

such decisions to judicial scrutiny has separation-of-powers implications.”)

      Plaintiffs’ liability theory makes a causal link between roadway design and

the collision, based on their own factual allegations, “vehicles traveling at a high

                                          7
rate of speed . . . enter a sharp turn . . . come within feet of those vehicles as the

path of the trail converges with the road.” CR 32. Plaintiffs attempt to frame the

issue as implementation of a policy to install safety features, but their own factual

allegations clearly show the issue is one of policy formulation complaining of

designing a “sharp turn” in the roadway “within feet” of the trail, a discretionary

roadway design decision made decades ago for which the City retains immunity.

CR 32. Moreover, Plaintiffs’ pleading establishes that there is no “sharp turn,” or

turn of any kind on West Cesar Chavez St. at the accident site. CR 34. It is

beyond dispute, based on photos of the accident site incorporated into Plaintiffs’

pleading, that there is only a very slight curve in the roadway, just like most city

streets. AA 2. While the trial court accepts the allegations in the pleadings as true,

it is also required to consider evidence relevant to jurisdiction when necessary to

resolve the jurisdictional issue. Bland I.S.D. v. Blue, 34 S.W.3d 547, 555 (2000).

Plaintiffs fault the City’s lack of jurisdictional evidence, but in this case Plaintiffs’

submission of evidence affirms the City’s decision to exercise its discretion on

whether or not to install additional safety features at a single point on a trail

extending many blocks between highways. Plaintiffs’ injuries stem from a driver

under the influence veering off the roadway striking pedestrians in close proximity.

Clearly, the City cannot wall in a miles-long trail, or every sidewalk and bus stop




                                           8
adjoining the roadway, many of which are in closer proximity than the accident

site in this case.

       In another collision case, this Court recently clarified that the “liability

theory presented in this [jurisdictional] evidence makes a causal link between the

TxDOT engineer’s decisions about the design of the highway’s cross slope, the

complained-of pavement conditions, and the subject collision. That theory is based

entirely on TxDOT’s roadway design. Even taking the evidence in the light most

favorable to Hathorn, the non-movant, it is clear that the negligence alleged by

Hathorn arose not from faulty implementation of the plans, but from TxDOT’s

policy decision about the roadway’s design.” Hathorn, 2012 WL 2989235 at *8

(liability theories alleged by plaintiff implicate discretionary decisions regarding

highway design for which TxDOT retains sovereign immunity).               Similarly,

Plaintiffs herein complain about designing a “sharp turn” on West Cesar Chavez

St., which even though disproven by Plaintiffs’ jurisdictional evidence, is a

complaint about policy formulation.

       “Under section 101.056, the State retains its immunity for claims based on

its ‘decisions not to perform an act or on its failure to make a decision on the

performance or nonperformance of an act if the law leaves the performance or

nonperformance of the act to the discretion of the governmental unit.” Flynn, 228

S.W.3d at 662 n.6, citing Miguel, 2 S.W.3d at 251. Plaintiffs’ jurisdictional


                                         9
evidence establishes that in 2014, two years after the accident, the City had still not

made any decision on whether or not to install additional safety features at the

accident site. “It is unclear when a decision will be made regarding safety at that

location.” fn.2 (emphasis added)        CR 17, 60.       Accordingly, governmental

immunity is not waived depriving the trial court of subject matter jurisdiction.

             1.     Municipalities Have Discretion to Make Decisions
                    Regarding Roadway Design and Installation of Safety
                    Features.
      Texas courts have repeatedly stated, as a matter of law, that the decision to

install safety features on roadways is a discretionary act for which the state has

immunity from suit. Ramirez, 74 S.W.3d at 867 (decision not to install barriers or

guardrails); Wenzel v. City of New Braunfels, 852 S.W.2d 97, 98 (Tex. App.—

Austin 1993, no writ) (decision not to erect barricade, warning sign, or similar

warning device); City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex. App.—El

Paso 1990, writ denied) (design, placement, and upgrading of guardrails and

barricades on bridge over culvert); Burnett v. Texas Highway Dep’t., 694 S.W.2d

210, 212 (Tex.App.—Eastland 1985, writ ref’d n.r.e.) (replacement of highway

metal beam guard fence with rigid barrier); Stanford v. State Dep’t of Highways &

Pub. Transp., 635 S.W.2d 581, 582 (Tex.App.—Dallas 1982, writ ref’d n.r.e.)

(decision not to add guardrails on overpass).




                                          10
      In Ramirez, the Texas Supreme Court rejected a claim that failing to install a

guardrail on a known hazardous roadway waived governmental immunity.

Ramirez, 74 S.W.3d at 867. The Court explicitly stated that “the lack of safety

features, such as barriers or guardrails, reflect discretionary decisions” thus

allowing the state to retain immunity.        Id.   Such a decision is discretionary

regardless of whether the decision is to install no features or to install inadequate

features. See id. (finding immunity for a lack of safety features) and Rodriguez,

985 S.W.2d at 86 (finding immunity for inadequate safety features).

      This Court’s precedent has applied the Supreme Court’s logic not only to

injured motorists, but also to bystanders inured by motorists. In Wenzel, this Court

held that the City of New Braunfels had immunity against a suit by injured

pedestrians. Wenzel at 100. The plaintiff in that case had been injured at the

county fairgrounds when a vehicle hit him. Id. at 98. This Court held that whether

to regulate traffic near the fairgrounds by signs, barricades or other means was

discretionary. Id. at 100. Thus, this Court determined that a city enjoys immunity

against the claims of an injured third party for the city’s failure to safely regulate

traffic. Id. This case presents a strikingly similar situation to the one that this

Court addressed in the Wenzel case. The plaintiff in Wenzel claimed that the City

of New Braunfels failed to adequately protect the pedestrians in the fairground by

controlling the traffic in the nearby street. Id. at 98. Here, while Plaintiffs frame


                                         11
their argument in terms of the trail, every example that they cite as to the

dangerousness of the trail involves vehicles veering off the street, just like in

Wenzel. CR 34. Therefore, the Plaintiffs in this case essentially argue that the City

has failed to adequately control traffic, a decision left to the discretion of the City,

protected from suit by governmental immunity under the Texas Tort Claims Act.

             2.     The City Exercised its Discretion Regarding Installation of
                    Additional Safety Features on the Roadway.

      At the time of the incident, no additional safety features had been installed

on West Cesar Chavez St. along the trail which extends many blocks between two

highways. See CR 26. As the Texas Supreme Court has held, whether or not to

install safety features represents a discretionary policy decision of the state.

Ramirez, 74 S.W.3d at 867. The decision not to install additional safety features

remains a discretionary choice. See id. Plaintiffs allege “13 prior instances of

vehicles dangerously travelling up over the curb,” in the last 15 years. CR 15.

Plaintiffs admit the trail has “1.5 million visitors a year,” yet out of 23.5 million

visitors in 15 years, their jurisdictional evidence submits only a single incident of a

car veering off the road damaging landscaping.          CR 45–53.      Even assuming

thirteen prior incidences as alleged, under Ramirez, prior incidents do not require

state action; the state can still freely choose whether to modify roadway safety and

be protected by governmental immunity. Ramirez, 74 S.W.3d at 867 (fourteen

similar incidents on one stretch of road did not waive immunity for decision not to

                                          12
install safety features). Until the City decides to implement a policy requiring

modification, or the law mandates action, it enjoys complete immunity from suits

over the safety of the roadway. Flynn, 228 S.W.3d at 657.

      While the state enjoys immunity for policy making, the state does not enjoy

immunity from suit based on the implementation of an already formulated policy.

Id. Plaintiffs argue that the City’s decision not to install some sort of safety feature

was not itself a discretionary policy decision, but rather a negligent implementation

of a previous policy decision, and cite Flynn for support. CR 37. However, this

comparison is misplaced. To determine the line between policy making and policy

implementing, the Texas Supreme Court has referenced two tests, the

policy/operations test and the design/maintenance test. Flynn, 228 S.W.3d at 657.

Under both tests, the discretionary policy formulation occurs when the state

decides to act. See id. Once the state implements that decision it no longer enjoys

immunity. Id. Determining at what point a final policy is made and ready for

implementation determines whether the state has immunity or not. Plaintiffs’

jurisdictional evidence establishes that the City never decided to act and install

additional safety features at the accident site. “It is unclear when a decision will be

made regarding safety at that location.” fn.2. (emphasis added) CR 17, 60.

      Using those tests in Flynn, the Supreme Court found that while the decision

to install sprinklers on Stephen F. Austin’s campus was discretionary,


                                          13
implementing the policy by determining how the sprinklers would work was not.

Id. at 658. In this case, for the discretionary decisions, Plaintiffs point to a broad

supposed “policy” of fixing hazards in parks and attempt to compare it to the

decision to install sprinklers in Flynn.       CR 38.   Such a discretionary policy

mandating action would rob the City of the flexibility needed to determine the best

way to maintain public spaces in a city of over 900,000 people. The purported

“policy” Plaintiffs point to would be more akin to Stephen F. Austin having a

policy requiring caring for the grounds. In reality, the decision to install sprinklers

in Flynn would be more like the City making a decision to actually install

identifiable safety features at an area. Therefore, Flynn does not indicate that the

City’s decision not to install safety devices went towards the implementation of

policy.

      Plaintiff’s jurisdictional evidence establishes that the “MANAGEMENT

RESPONSE – ACTION PLAN,” submitted by the department in response to the

City employee’s report Plaintiffs rely on in no way references the accident or the

accident site, merely restating the overall “goal” that the “Department is committed

to ensuring parks and recreational facilities are safe for all to enjoy.” CR 65.

             3.     The Trial Court Lacked Jurisdiction to “Second Guess” the
                    City’s Roadway Design and Installation of Safety Features.

      Once the City makes a discretionary policy decision as to the design and

safety features of a roadway, courts do not “second guess” whether the decision

                                          14
made was the most appropriate or effective. Miguel, 2 S.W.3d at 251. The courts

are open for plaintiffs to allege that the decision was implemented negligently, or

that the state failed to maintain the equipment it installed, but not to challenge the

decision itself. Flynn, 228 S.W.3d at 657–58. Here, because the City chose a

policy that did not require action, there was nothing to negligently implement, nor

was there any equipment that the City could maintain. Thus, Plaintiffs essentially

challenge the lack of a decision to install barriers, and seek judicial inquiry into the

adequacy of the City’s legislative and executive policy making. This Court has

said that to do so would “displace the authority of the agency responsible for

making such decisions.” Maxwell v. Texas Dep’t. of Transp., 880 S.W.2d 461, 464

(Tex. App.—Austin 1994, writ denied).

      The Texas Supreme Court clarified that the Texas Tort Claims Act’s purpose

“preserves immunity for discretionary decisions under the ‘discretionary powers’

exception to the waiver. The exception’s purpose is to avoid judicial review or

interference with those policy decisions committed to the other branches of

government. The provision generally preserves immunity not only for the state’s

public policy decisions, but also for the state’s failure to act, when no particular

action is required by law.” Flynn, 228 S.W.3d at 657 (internal citations omitted);

State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979) (“the purpose of both is the

same: to avoid a judicial review that would question the wisdom of a government’s


                                          15
exercise of its discretion in making policy decisions. The interests to be served by

these provisions are several—e.g., effective, unfettered performance of officials in

making policy decisions and the maintenance of the separation of powers between

the executive, legislative, and judicial branches of government”)

      B.     The City Does Not Have a Policy Mandating the Installation of
             Additional Safety Features on the Roadway.
      At most, Plaintiffs’ allegations amount to no more than the City had a broad

policy to fix and abate all identified hazards on recreational facilities citywide. CR

38. For this proposition, Plaintiffs cite “Parks and Recreation Department Stated

Policy” as referred to in a report by a City employee. CR 38. This purported

“policy” fails to establish that the City had a duty to install safety features so as to

waive governmental immunity because the pleading itself is insufficient to invoke

the district court’s jurisdiction. Just the opposite, it establishes that the City had not

decided, as it states, “It is unclear when a decision will be made regarding safety at

that location.” fn.2 (emphasis added).          CR 17, 60. Additionally, even if the

purported “policy” identified by Plaintiffs establishes some duty on the City, that

duty is not ministerial leaving nothing to the exercise of discretion or judgment,

and thus does not waive governmental immunity.




                                           16
             1.     Plaintiffs Failed to Affirmatively Establish the Trial Court’s
                    Subject Matter Jurisdiction.

      The common law doctrine of sovereign immunity exists not only to protect

the government from the costs of liability, but from the costs of a lawsuit itself.

See Texas Dep’t. of Transp v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The plaintiff

in a suit against the government has the burden of affirmatively establishing that

the trial court has jurisdiction. Texas Dep’t. of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Immunity is a jurisdictional bar; unless a state has

waived immunity from suit, a trial court has no subject matter jurisdiction to hear

the case. Id. Therefore, to establish trial court jurisdiction, the plaintiff must plead

facts that affirmatively show that the state has waived immunity. First, in this case,

Plaintiffs have failed to sufficiently identify a policy waiving governmental

immunity. Second, Plaintiffs’ jurisdictional evidence of a policy fails to waive

governmental immunity because it establishes that the City has made no decision

regarding the safety of the accident site. CR 60.

                    a.     Plaintiffs Failed to Meet Their Burden to Overcome
                           the City’s Governmental Immunity.
      The burden on the plaintiff to establish jurisdiction in cases regarding

governmental immunity is much higher than the general notice pleading standard

usually used in Texas courts. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d

887, 896 (Tex. 2000) (“Texas follows a ‘fair notice’ standard for pleading, which


                                          17
looks to whether the opposing party can ascertain from the pleading the nature and

basic issues of controversy and what testimony will be relevant”). Courts have set

the bar to plead jurisdiction where the defendant may have immunity higher,

because if the bar is too low and invokes jurisdiction on weak or meritless cases,

then the entire policy reason for immunity is circumvented, and municipalities will

accrue costs defending cases over which the legislature has granted immunity from

suit. Thus, policy requires more than mere notice; at a minimum, plaintiffs must

allege specific facts that, if true, would establish a waiver of immunity by the

government. Miranda, 133 S.W.3d at 226.

      To establish a waiver of immunity under the Tort Claims Act, the plaintiff

must plead sufficient facts to show that the City’s act or omission was not

discretionary. Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (West 2011). The

court will construe the pleading liberally in the plaintiff’s favor to determine if the

plaintiff has sufficiently pleaded facts establishing a waiver of immunity. See

Miranda, 133 S.W.3d at 226. In this case, Plaintiffs plead that the Parks and

Recreation Department had a “policy” that mandated action to address known

safety hazards. CR 41. Plaintiffs claim that this “policy” establishes that the city

had no discretion to not install some safety features after an incident. Id. In

support of that claim, Plaintiffs point to a report made by a City employee

referencing various Parks and Recreation Department “polices.” CR 40. Plaintiffs


                                          18
claim that because the City has not controverted their evidence, then the court must

interpret their pleadings as establishing that a “policy” existed, and implementing it

by building a safety barrier was not a discretionary act, a fact that would establish

jurisdiction. CR 41. However, the law does not require, and the City cannot prove

a negative, the lack of a policy. Rather the law places the burden on the plaintiff to

affirmatively establish jurisdiction and Plaintiffs’ jurisdictional evidence, even if

taken as true that a safety and accident policy exists, does not affirmatively

establish that the Texas Tort Claims Act has waived immunity for the City.

Miranda, 133 S.W.3d at 226. To allow this claim to establish a court’s jurisdiction

would greatly undermine the policy behind governmental immunity. Plaintiffs do

not identify a policy by any identifiable means, not even a name, and ask the court

to assume that they are correct that not only does it exist, but it requires what they

claim. Their own jurisdictional evidence refutes their allegations, affirmatively

showing that the City made no decision regarding installing additional safety

features. fn.2. CR 17, 60.

      This court has already rejected the idea that it is enough to merely plead that

a mandatory policy exists and require the court to accept it as true. See Bellnoa v.

City of Austin, 894 S.W.2d 821, 824 (Tex. App.—Austin 1995, no writ). The mere

use of magic words disproven by Plaintiffs’ jurisdictional evidence overcoming

immunity would make a nullity of Plaintiffs’ burden to establish jurisdiction. In


                                         19
Bellnoa, the plaintiffs were more specific than the plaintiffs in the current case, and

identified two documents by name, claiming that those documents mandated action

on the city. Id. This Court was then able to look at the documents in question and

determine that they did not establish a mandatory duty on the City. Id. at 845–25.

In Ramirez, Plaintiff’s expert report opining that “TxDOT could have remedied the

dangerous condition by flattening the median’s slope or installing concrete median

barriers or guardrails” did not overcome the state’s sovereign immunity. Ramirez,

74 S.W.3d at 867 (“there had been numerous head-on collisions involving vehicles

crossing the narrow grass median and colliding with vehicles traveling in the

opposite direction”).

      Plaintiffs, fully capable of acquiring City policies through the same

discovery and open records requests which obtained a City employee’s report and

police report for the only other accident they submit, make vague, broad

generalizations referring to some purported “policy,” which they fail to identify,

name, date, or establish that it was created by someone with authority to make

policy for the City. Plaintiffs attempt to use this singular vague reference to avoid

the fate of the Bellnoas to establish jurisdiction without actually identifying any

policy that can be said to mandate that the City act. Plaintiffs attempt to have the

trial court accept their allegation as true, and conveniently avoid the risk that the

court might decide that the referenced policy does not bind the City as a matter of


                                          20
law. In light of this Court’s decision in Bellnoa, when a plaintiff alleges that some

policy binds the government to action, they should have to at least point to an

actual policy to establish waiver of immunity, and therefore, jurisdiction. Plaintiffs

fail to do so because no policy exists.

                    b.    The City Employee’s Report Fails to Identify a Policy
                          Mandating Installation of Additional Safety Features
                          on the Roadway.
      Statements made by individual employees of a city government cannot

create policy, nor can they bind the city to act. See Zambory v. City of Dallas, 838

S.W.2d 580, 583 (Tex. App.—Dallas 1992, writ denied). The evidence offered by

Plaintiffs suggested policy consists solely of a report by a City employee. CR 41.

It would be one thing if Plaintiffs identified an actual policy written by a

department official pursuant to delegated powers; however, Plaintiffs wish to use

an employee report that references a purported policy to bind the city, and waive

governmental immunity, simply on the basis of the use of vague terms.

             2.     Plaintiffs fail to Identify a Ministerial Act Leaving Nothing
                    to the City’s Exercise of Discretion.
      Governmental immunity exists for failing to perform a discretionary act, and

is only waived when the injury is caused by a failure to perform a ministerial act.

Chambers, 883 S.W.2d at 654. A ministerial act is such that the actor has no

choice, “where the law prescribes and defines the duties to be performed with such

precision as to leave nothing to the exercise of discretion or judgment.”          Id.

                                          21
According to the Plaintiffs, the Parks and Recreation Department has a policy that

requires it to “eliminate or control identified safety hazards.” CR 40. A policy that

broad does not define “the duties to be performed with such precision as to leave

nothing to the exercise of discretion or judgment.” Chambers, 883 S.W.2d at 654.

Many ways of eliminating or controlling hazards exist, and some known hazards

simply cannot be controlled such as walling in miles of trails. If there were an

actual policy enacted by a City official vested with the authority to set policy,

Plaintiffs would surely have submitted it as jurisdictional evidence, or at least

quoted the policy language that mandated the City to act with “precision.”

      A discretionary decision is simply one that requires deliberation, decision,

and judgement.     Id.   Discretionary policy decisions may give way to other

discretionary policy decisions; just because a city makes a discretionary decision

does not mean that all subsequent decisions are ministerial. If addressing safety

hazards is a discretionary policy decision, then so is determining the best way to go

about doing so, and if the adequacy of a discretionary decision cannot be

challenged, then neither can deciding that no action is needed.         Ramirez, 74

S.W.3d at 867. The City’s decision that no action is needed is protected by

governmental immunity depriving the trial court of subject matter jurisdiction.




                                         22
                         CONCLUSION AND PRAYER

      For the reasons set forth herein, the trial court’s order denying the plea to the

jurisdiction should be reversed, and judgment should be rendered granting the plea.

                                 RESPECTFULLY SUBMITTED,

                                 KAREN M. KENNARD, CITY ATTORNEY
                                 MEGHAN L. RILEY, CHIEF, LITIGATION

                                 /s/ Chris Edwards
                                 CHRIS EDWARDS
                                 Assistant City Attorney
                                 State Bar No. 00789276
                                 chris.edwards@austintexas.gov
                                 City of Austin-Law Department
                                 P. O. Box 1546
                                 Austin, Texas 78767-1546
                                 Telephone: (512) 974-2419
                                 Facsimile: (512) 974-1311

                                 COUNSEL FOR DEFENDANT - APPELLANT




                                         23
                         CERTIFICATE OF SERVICE

      This is to certify that I have served a copy of the foregoing on all parties, or

their attorneys of record, in compliance with the Appellate Rules of Civil

Procedure, this 23rd day of June, 2015.

Sean E. Breen
State Bar No.00783715
sbreen@howrybreen.com
HOWRY BREEN & HERMAN, L.L.P.
1900 Pearl Street
Austin, TX 78705-5408
Telephone: (512) 474-7300
Facsimile: (512) 474-8557

Mike Davis
State Bar No. 05549500
mdavis@slackdavis.com
SLACK & DAVIS, L.L.P.
2705 Bee Cave Road, Suite 220
Austin, Texas 78746
Telephone: (512) 795-8686
Facsimile: (512) 795-8787

COUNSEL FOR PLAINTIFFS - APPELLEES


                                /s/ Chris Edwards
                                CHRIS EDWARDS
                                Counsel for Defendant – Appellant




                                          24
                      CERTIFICATE OF COMPLIANCE

      This brief complies with the type-volume limitations of Tex. R. of App. P.

9.4(i)(2)(B) because this brief contains 5405 words, excluding the parts of the brief

exempted by Tex. R. App. P. 9.4(i)(1).


                                /s/ Chris Edwards
                                CHRIS EDWARDS
                                Counsel for Defendant – Appellee




                                         25
                                  APPENDIX

TAB

1     Order Denying City of Austin’s Plea to the Jurisdiction

2     Plaintiff’s Response in Opposition to Defendant City of Austin’s Plea to the
      Jurisdiction – photos of accident site, pg. 3.




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