                                                                                              ACCEPTED
                                                                                          03-15-00292-CV
                                                                                                  6671739
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN, TEXAS
                                                                                     8/26/2015 9:51:30 PM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                             No. 03-15-00292-CV

                                                      FILED IN
                                               3rd COURT OF APPEALS
                IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                THIRD JUDICIAL DISTRICT OF TEXAS
                                               8/26/2015 9:51:30 PM
                        AT AUSTIN, TEXAS         JEFFREY D. KYLE
                                                       Clerk


                              CITY OF AUSTIN,
                            Defendant – Appellant,

                                         V.


                         JENNIFER FRAME, ET AL.,
                            Plaintiffs – Appellees.


                          APPELLEES’ BRIEF


   Appeal from the 98th Judicial District Court of Travis County, Texas
                      Cause No. D-1-GN-14-004391


Sean E. Breen                                 Mike Davis
State Bar No. 00783715                        State Bar No. 05549500
sbreen@howrybreen.com                         mdavis@slackdavis.com
HOWRY BREEN & HERMAN, LLP                     SLACK & DAVIS, L.L.P.
1900 Pearl Street                             2705 Bee Caves Road, Suite 220
Austin, Texas 78705-5408                      Austin, Texas 78746
Tel. (512) 474-7300                           Tel. (512) 795-8686
Fax (512) 474-8557                            Fax (512) 795-8787

Attorney for Appellees Jennifer Frame,        Attorney for Appellee Diana Pulido
Greg Griffith, and Cheryl Burris
                                          TABLE OF CONTENTS
Index of Authorities ................................................................................................. iii
Statement of the Case.................................................................................................1
Statement Regarding Oral Argument ........................................................................2
Issue Presented...........................................................................................................3
Statement of Facts......................................................................................................4
         I.       Colonel Griffith was killed and Ms. Pulido was injured while
                  they were using the City-owned and operated Lady Bird
                  Lake Hike & Bike Trail.........................................................................4
         II.      Because there were many previous incidents at the same
                  location on the trail, the City had identified it as a safety
                  hazard. ...................................................................................................4
         III.     The City’s auditor concluded the City’s delay in addressing
                  the identified safety hazard on the Hike & Bike Trail was
                  contrary to the City’s policy..................................................................6
Summary of Argument ..............................................................................................8
Arguments and Authorities ........................................................................................9
         I.       Legal standards......................................................................................9
         II.      Appellees met their burden to allege facts establishing the
                  trial court’s subject-matter jurisdiction. ..............................................10
                  A.        The factual allegations in Appellees’ first amended
                            petition clearly fall within policy-implementation
                            waiver of governmental immunity............................................10
                  B.        The City’s attempt to plead ignorance of the policies
                            at issue is disingenuous.............................................................11
         III.     The trial court’s denial of the City’s plea to the jurisdiction
                  was correct because the City failed to affirmatively and
                  conclusively negate Appellees’ basis for jurisdiction.........................16
                  A.        An entity’s governmental immunity is waived for
                            harm caused by the failure of policy implementation. .............16
                  B.        The City itself concluded there was a failure of policy
                            implementation..........................................................................18
                  C.        The conclusion reached by the City is consistent with

                                                                -i-
                             the findings of other Texas appellate courts. ............................20
                   D.        The City’s attempt to characterize its failure to
                             eliminate or control a safety hazard as a discretionary
                             policy-formulation decision misunderstands Texas
                             law. ............................................................................................22
                   E.        The City’s insistence that this is a case about roadway
                             design does not make it so, and therefore the City may
                             not raise the defense of governmental immunity......................24
         IV.       The trial court’s decision was also correct because, at a
                   minimum, fact issues exist as to whether the City made a
                   policy-formulation decision and simply failed to implement
                   it...........................................................................................................25
Prayer .......................................................................................................................27
Certificate of Compliance ........................................................................................29
Certificate of Service ...............................................................................................30




                                                                  - ii -
                                         INDEX OF AUTHORITIES
Bellnoa v. City of Austin, 894 S.W.2d 821 (Tex. App.—Austin 1995,
  writ denied) ..........................................................................................................15

Bennett v. Tarrant Cnty. Water Ctrl. Dist. No. 1, 894 S.W.2d 441
  (Tex. App.—Fort Worth 1995, writ denied)........................................................23

City of Austin v. Rangel, 184 S.W.3d 377 (Tex. App.—Austin 2006,
  no pet.) ...................................................................................................................9

City of Granite Shoals v. Winder, 280 S.W.3d 550 (Tex. App.—
  Austin 2009, pet. denied).......................................................................... 9, 16, 26

City of Midland v. Sullivan, 33 S.W.3d 1 (Tex. App.—El Paso 2000,
  pet. dism’d) ............................................................................................. 10, 20, 21

City of Paris v. Floyd, 150 S.W.3d 224 (Tex. App.—Texarkana 2004,
  no pet.) ...................................................................................................................9

Fountain v. Burklund, No. 03-01-00380-CV, 2001 Tex. App. LEXIS
  8252 (Tex. App.—Austin Dec. 13, 2001, pet. denied)........................................13

K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (Tex. 2000) ........................................27

San Patricio Mun. Water Dist. v. City of Corpus Christi, No. 13-10-
  00272-CV, 2011 Tex. App. LEXIS 262 (Tex. App.—Corpus
  Christi Jan. 13, 2011, pet. denied) .......................................................................27

State Dep’t of Highways & Pub. Transp. v. King, 808 S.W.2d 465
  (Tex. 1991)...........................................................................................................15

State v. Lueck, 290 S.W.3d 876 (Tex. 2009) .......................................................9, 11

Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653 (Tex. 2007) ............ passim

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex.
  1993) ......................................................................................................................9

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.
  2004) ................................................................................................... 9, 10, 16, 26

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999) .......................................9


                                                                - iii -
Tex. Dep't of Transp. v. Hathorn, No. 03-11-00011-CV, 2012 Tex.
  App. LEXIS 5906 (Tex. App.—Austin July 19, 2012, no pet.)..........................25

Wenzel v. City of New Braunfels, 852 S.W.2d 97 (Tex. App.—Austin
 1993, no writ).......................................................................................................25

Zambory v. City of Dallas, 838 S.W.2d 580 (Tex. App.—Dallas 1992,
  writ denied), disapproved on other grounds, City of Grapevine v.
  Sipes, 195 S.W.3d 689, 695 n.5 (Tex. 2006) .................................... 10, 14, 20, 21




                                                             - iv -
                           STATEMENT OF THE CASE

         Nature of the case:   Plaintiffs – Appellees Jennifer Frame, individually
                               and as personal representative of the Estate of
                               Colonel John Griffith, Greg Griffith, Cheryl Burris,
                               and Diana Pulido brought negligence claims against
                               Defendant Joseph Rosales and Defendant –
                               Appellant City of Austin for wrongful death and
                               personal injuries that occurred when Mr. Rosales
                               struck Colonel Griffith and Ms. Pulido while both
                               were using the City’s Lady Bird Lake Hike & Bike
                               Trail on May 7, 2012.

    Course of proceedings:     Appellees filed suit against Mr. Rosales for
                               negligence on November 12, 2012.1 Appellees filed
                               their first amended petition on May 7, 2014, and
                               asserted negligence claims against the City. 2 The
                               City asserted a plea to the jurisdiction in its original
                               answer,3 and a hearing on the City’s plea was held on
                               April 13, 2015, before Judge Amy Clark Meachum.

    Trial court disposition:   Judge Meachum denied the City’s plea to the
                               jurisdiction on April 27, 2015. 4 The City filed its
                               notice of appeal on May 8, 2015.5 Mr. Rosales is not
                               a party to this appeal.




1
    See CR 3.
2
    See CR 11.
3
    CR 22.
4
    CR 66.
5
    CR 70.


                                            -1-
               STATEMENT REGARDING ORAL ARGUMENT

      Appellees agree with the City that oral argument is not necessary for this case.

It presents no new or novel issues, and may be decided under clear Texas law.




                                           -2-
                                  ISSUE PRESENTED

         A governmental entity like a city possesses immunity for the formulation of

policy, but immunity is waived for injuries caused by a city’s negligent failure to

implement policy. Further, a city’s plea to the jurisdiction may only be granted if

the pleadings and jurisdictional evidence affirmatively and conclusively negate the

existence of jurisdiction.

         In this case, Appellees presented, among other evidence, a report from the

City’s auditor that found that, contrary to specific Parks & Recreation Department

policy, the City “delay[ed] in addressing identified safety hazards” on the Lady Bird

Lake Hike & Bike Trail at the place where Colonel Griffith was killed and Ms.

Pulido was injured.6

         Did the trial court err in denying the City’s plea to the jurisdiction when
         it concluded the City failed to affirmatively and conclusively negate the
         existence of jurisdiction?




6
    CR 60.


                                               -3-
                                  STATEMENT OF FACTS

I.       Colonel Griffith was killed and Ms. Pulido was injured while they were
         using the City-owned and operated Lady Bird Lake Hike & Bike Trail.

         On May 7, 2012, at approximately 5:15 pm, Colonel Griffith was walking

with his daughter along the Lady Bird Lake Hike & Bike Trail (“Hike & Bike Trail”)

on the south side of the 900 block of West César Chávez Street.7 A vehicle driven

by Mr. Rosales entered the curve in the road under the Lamar Boulevard overpass,

jumped the curb, and careened down the trail. Debris, a road sign, and Mr. Rosales’s

vehicle struck Colonel Griffith and another pedestrian, Ms. Pulido.8 Both Colonel

Griffith and Ms. Pulido were severely injured; Colonel Griffith died from his injuries

later that night.9

II.      Because there were many previous incidents at the same location on the
         trail, the City had identified it as a safety hazard.

         The City had long ago identified the safety hazard presented by the section of

the Hike & Bike Trail where Colonel Griffith and Ms. Pulido were struck. In fact,

it had been the site of at least 13 separate collisions in the 15 years preceding this

incident.10 In 1999, then-Governor Bush, on his morning jog, was forced to take



7
    CR 13–14.
8
    CR 14.
9
    CR 14.
10
     CR 15–16.


                                             -4-
cover behind a bridge support after a trailer overturned and dumped debris across

the trail.11 In a very similar incident in 2006, this danger was exposed again when

an inattentive driver jumped the curb heading eastbound on West César Chávez

Street and traveled 200 feet down the Hike & Bike Trail before coming to a stop

after hitting three trees.12

         On at least three occasions before Colonel Griffith and Ms. Pulido were

struck, concerned citizens contacted the City to request the construction or

coordination of safety measures for the express purpose of protecting pedestrians on

the Hike & Bike Trail.13 In response, members of the City’s Parks and Recreation

Department (the Department) recognized the dangerous condition of the Hike &

Bike Trail did not meet the Department’s safety standards.14 Less than two months

before this incident, a Department division manager noted that “[safety] concerns

kept coming up” about the section of the Hike & Bike Trail where Colonel Griffith

and Ms. Pulido were struck.15




11
     See CR 15–16.
12
     See generally CR 45–53.
13
     See CR 16.
14
     See CR 16.
15
     See CR 16.


                                           -5-
III.     The City’s auditor concluded the City’s delay in addressing the identified
         safety hazard on the Hike & Bike Trail was contrary to the City’s policy.

         After this incident occurred, a Parks and Recreation Department Patron Safety

Audit conducted in February 2014 by the City auditor’s office found that “[p]er

[Department] policies, when a hazard is identified, it is either corrected by

eliminating the cause of the hazard or is effectively controlled, such as controlling

or limiting access to a specific area.”16         In other words, the City’s Department had

a specific policy in place to eliminate the cause of identified safety hazards or to

control the hazards by limiting access to them.17

         The City auditor’s report noted, however, that “hazards identified are not

monitored through correction.” 18              In support of this conclusion, the report

specifically cited the May 7, 2012 incident in which Colonel Griffith was killed and

Ms. Pulido was injured as an example of the Department’s delay in addressing an
                                  19
identified safety hazard.              The City’s own audit concluded that “[w]hile

[Department] management has developed and approved policies aimed at

identifying and managing hazards related to patron safety, [Department] executive

management has not allocated the appropriate skills, structure, and resources to


16
     CR 60.
17
     See CR 60; see also CR 17 (citing City auditor’s report)
18
     CR 56.
19
     CR 60.


                                                    -6-
support the implementation of patron safety policies.”20




20
     See CR 56 (emphasis added).


                                          -7-
                              SUMMARY OF ARGUMENT

      Years before Colonel Griffith was killed and Ms. Pulido was injured, the City

had identified the portion of the Hike & Bike Trail that approaches West César

Chávez Street under Lamar Boulevard as a safety hazard. Despite a policy of

eliminating or controlling identified safety hazards, the City’s Parks and Recreation

Department delayed in addressing this known safety hazard. A February 2014 report

from the City auditor’s office concluded the City had failed to implement

Department policies regarding the elimination or control of safety hazards,

specifically citing the incident forming the basis for this case as an example.

      Appellees affirmatively established the trial court’s subject-matter

jurisdiction in both their pleadings and the jurisdictional evidence they submitted

through claims that their harm was caused by the City’s failure to implement its own

policy for which no governmental immunity exists. After Appellees carried their

burden, the trial court correctly denied the City’s plea to the jurisdiction because the

City failed to carry its burden to affirmatively and conclusively negate the existence

of jurisdiction. In doing so, the trial court recognized the existence of disputed

questions of fact that were both material to the court’s subject-matter jurisdiction

and intertwined with the merits of Appellees’ claims.




                                             -8-
                                ARGUMENTS AND AUTHORITIES

I.       Legal standards

         A plea to the jurisdiction is a challenge to a court’s subject-matter

jurisdiction.21 The burden to demonstrate jurisdiction in the first instance is on the

plaintiff, which is met by alleging facts affirmatively establishing the trial court’s

subject-matter jurisdiction.22

         All of a plaintiff’s factual allegations are accepted as true.23 When evaluating

a plaintiff’s pleadings, a trial court looks to the plaintiff’s intent and construes

pleadings establishing the trial court’s jurisdiction in the plaintiff’s favor.24

         “Only if the pleadings and jurisdictional evidence affirmatively and

conclusively negate the existence of jurisdiction should a plea to the jurisdiction be

granted.”25 Disputed evidence of jurisdictional facts may require resolution by the

fact finder and prevent a decision on a plea to the jurisdiction.26

         A denial of a governmental entity’s plea to the jurisdiction is reviewed de




21
     See, e.g., Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999).
22
     See, e.g., State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009).
23
     City of Austin v. Rangel, 184 S.W.3d 377, 381 (Tex. App.—Austin 2006, no pet.).
24
     Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
25
     City of Granite Shoals v. Winder, 280 S.W.3d 550, 555 (Tex. App.—Austin 2009, pet. denied).
26
  See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Winder, 280
S.W.3d at 555; City of Paris v. Floyd, 150 S.W.3d 224, 226 (Tex. App.—Texarkana 2004, no pet.).


                                                    -9-
novo.27

II.      Appellees met their burden to allege facts establishing the trial court’s
         subject-matter jurisdiction.

         As discussed in more detail below, a governmental entity’s formulation of

policy is distinct from the entity’s implementation of that policy.28 The parties agree

that a governmental entity retains immunity for deciding on a policy in the first

instance, but does not enjoy such immunity for action (or a lack of action) taken to

implement that policy.29 In other words, a governmental entity is not immune if the

implementation rule applies. The trial court correctly recognized this as a policy-

implementation case and properly denied the City’s plea to the jurisdiction.30

         A.       The factual allegations in Appellees’ first amended petition clearly
                  fall within policy-implementation waiver of governmental
                  immunity.

         In their first amended petition, Appellees alleged their harm was caused by

the City’s failure to implement an existing policy:31



27
     See Miranda, 133 S.W.3d at 228.
28
   See Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007); City of Midland
v. Sullivan, 33 S.W.3d 1, 15 (Tex. App.—El Paso 2000, pet. dism’d); Zambory v. City of Dallas,
838 S.W.2d 580, 582 (Tex. App.—Dallas 1992, writ denied), disapproved on other grounds, City
of Grapevine v. Sipes, 195 S.W.3d 689, 695 n.5 (Tex. 2006).
29
   Compare Appellant’s Brief, at 14 with CR 37 (Appellees’ response to the City’s plea to the
jurisdiction); see also Flynn, 228 S.W.3d at 657; Sullivan, 33 S.W.3d at 15; Zambory, 838 S.W.2d
at 582.
30
     CR 66.
31
     See CR 17.


                                                - 10 -
     and implement a policy ormaintenan.ce and construction of corrections and safeguards to protect

     patrons Was a proximate cauSt Of this. ingidui L. This uri/S. irbtvi an isciagiu.(1 invidr,...m. A failure to

     implement policies has plagued the City of Austin Parks and Recreation Department. In fact, the

     incident made the basis of ihis lawsuit was reccnily cited lay the City Auditor as one example of

     delay's by the PARD in addreming ikkraiEcd xd fc•ty hazards. I .Addressing iri nti cd surciy

     hazards is not discretionary - it is mandatory and ministerial. The report found that PARD is riot

     managing safety hazards effectively and there is limited assurance that hazards arc promptly

     irientiiied. and corrected_ The failure of the Cily to act on clear policy in place ED protect people

     such as the Plaintiffs was negligence, gross negligence and a proximate cause of the devastating

     irtj µr    here and is actionable.

                The acts and omissions in this miter and over the course of the previous 13 similar


These allegations (the City’s failure to implement a policy led to the Appellees’

harm) state a cognizable claim under Texas law, which is not barred by

governmental immunity. 32 Appellees therefore met their burden to affirmatively

establish the subject-matter jurisdiction of the trial court through their pleadings.33

               B.    The City’s attempt to plead ignorance of the policies at issue is
                     disingenuous.

               In an attempt to show Appellees have not met their pleading burden, the City

argues Appellees have failed to sufficiently identify a policy imposing on the City a




32
     Flynn, 228 S.W.3d at 658.
33
     Lueck, 290 S.W.3d at 884.


                                                            - 11 -
duty to act. 34 In essence, the City argues that Appellees are relying upon a

nonexistent policy. This is incorrect.

          First, the City accuses Appellees of alleging a broad fix-all-hazards policy that

is not sufficiently specific to impose a ministerial burden on the City to act.35 But

Appellees are not pointing to a policy that requires the elimination or control of all

unidentified safety hazards throughout Department properties—the policy upon

which Appellees rely only addresses hazards the City has previously identified.

Here, the pleadings and jurisdictional evidence show the City had formulated a

policy, identified a specific safety hazard pursuant to that policy, but failed to take

the necessary steps to implement that policy and thereby eliminate or control the

safety hazard.

          Second, the City asserts that, even if Appellees are attempting to identify a

specific policy that imposes ministerial duties, they have failed to do so.36 The City

lists in its brief purported requirements for more information regarding the policy at

issue: the policy’s name, the date it was issued, the period it covers, the policymaker,

etc.37 The City has waived this argument because it is raising it for the first time on




34
     Appellant’s Brief, 18–21.
35
     Appellant’s Brief, at 14.
36
     Appellant’s Brief, at 18–19.
37
     Appellant’s Brief, at 4, 19, 20.


                                               - 12 -
appeal—nor did it specially except to Appellees’ pleadings in the trial court as

insufficiently specific to identify the City policies at issue.38 Further, even if the

City had not waived this argument, it cites no authority in support of its position.

          Third and finally, the City auditor’s report, which was referenced in
                                                    39
Appellees’ first amended petition,                        specifically described the policies that

Appellees allege were violated, thereby creating the unsafe environment in which

Colonel Griffith was killed and Ms. Pulido was injured:40

 3. Hazard correction
 As indicated above, after detection, significant current and potential hazards should be prevented,
 corrected, or controlled in a timely manner. Per PAR) policies, when a hazard is identified, it is
 either corrected by eliminating the cause of the hazard at the source or is effectively controlled,
 such as controlling or limiting access to a specific area. However, as shown in Exhibit 2, currently
 there is no mechanism to ensure that once identified, hazards are actually corrected.


                                                     EXHIBIT 2
                        implementation of Patron Safety Hazard Correction Policies
     PARE) Policli'Retittirement              implemented? OCA Observations

     The Safety Officer should conduct            1V is             We found no evidence that routine
     follow-up inspections to ensure                                follow-up is conducted
     corrective action is taken
     The Safety Office is responsible for         No                Documentation needed to evaluate
     monitoring the implementation of the                           compliance with the safety program
     safety program to ensure compliance                            is not maintained in a central location
 SOURCE:      PARD policies and OCA observations during the course of this audit, September-December 2013




38
   See, e.g., Fountain v. Burklund, No. 03-01-00380-CV, 2001 Tex. App. LEXIS 8252, at *10
(Tex. App.—Austin Dec. 13, 2001, pet. denied) (failure to file special exceptions to defects in
pleadings waives complaint on appeal).
39
     CR 17 n.1.
40
     CR 60.


                                                           - 13 -
 Over the course of our audit, wefound various instances of delays in addressing identified safety
 hazards. For example:
 ▪ The Annual Playground Conditions Overview Report from November 2012 identified eight
    playground locations with non-compliant safety hazards that, according to priority ratings
    established by the International Playground Safety Institute, are "non-compliant safety concerns
    that may result in permanent disability, loss of life or body part, and should be corrected
    immediately." As of December 2013, only four of the eight playscapes have had the hazards
    mitigated. Although the implementation of a new piayscape is assigned to the Capital
    improvement Planning Division, there appears to be disagreement between this division and the
    Maintenance Division over what PARD division is responsible for mitigating the existing hazards.
 ■ A tree fell and injured a park patron on the Town Lake Trail in September 2013; PARD had
    identified the tree for removal a month prior.
 ■ The Occupational Health and Safety Coordinator asserted that he has identified safety hazards
    at multiple PARD locations, but due to disagreement with PARD division managers over the
    severity of the hazard, action was not taken to mitigate the hazard.
 ■ One person was killed, and another seriously injured, when a car jumped the curb on the Town
    Lake Trail in May 2012. A temporary guardrail was installed at the location and remains today.
    It is unclear when a decision will be made regarding safety at the location. In 1999, the
    Governor was injured at the same location,


This description of the Department’s policies referenced by the City auditor’s report

was sufficiently specific for Sara Hensley, director of the Department, to confirm

that she agreed with the report’s recommendations.41 In fact, Ms. Hensley’s adoption

of the City auditor’s findings as the Department’s director should effectively dispose

of the City’s argument that the policy relied upon by Appellees is merely an

“employee report.”42

          It is, at best, misleading for the City to state that the Department’s response to

the City auditor’s report does not mention the accident or the accident site.43 As the



41
     CR 64.
42
     Appellant’s Brief, at 21 (citing Zambory, 838 S.W.2d at 538).
43
     Appellant’s Brief, at 5, 14.


                                                   - 14 -
City well knows—and as shown in the screenshot above—not only does the City

auditor’s report itself specifically mention the accident and the accident site,44 but

the response from Ms. Hensley, the Department’s director, acknowledges that she

reviewed the report’s findings and recommendations and agreed with them.45

          Further, the City’s reliance on Bellnoa v. City of Austin is misplaced.46 In

Bellnoa, this Court concluded that the two documents relied upon by the plaintiffs

imposed no duty on the City because (i) one was specifically found not to be

mandatory by the Texas Supreme Court four years earlier, 47 and (ii) the other

explicitly called itself a set of “guidelines.”48 In contrast, the City auditor’s office

in this case referred to the policies cited in its February 2014 report as having

“requirements for hazard identification, data analysis, and hazard correction and

monitoring.”49 This characterization of the Department’s policies was adopted by

Ms. Hensley, the Department’s director.50




44
     CR 60.
45
     CR 64.
46
  Appellant’s Brief, at 19–20 (citing Bellnoa v. City of Austin, 894 S.W.2d 821, 824 (Tex. App.—
Austin 1995, writ denied)).
47
  Bellnoa, 894 S.W.2d at 824 (citing State Dep’t of Highways & Pub. Transp. v. King, 808 S.W.2d
465, 466 (Tex. 1991)).
48
     Id. at 824–25.
49
     CR 56 (emphasis added).
50
     CR 64.


                                                - 15 -
         In sum, Appellees met their burden to affirmatively demonstrate the trial

court’s jurisdiction because they pleaded claims for injuries caused by the City’s

negligent failure to implement specific Department policies and presented

jurisdictional evidence of the same. The City’s attempt to feign ignorance of the

policies at issue is not supported by Appellees’ pleadings or the jurisdictional

evidence presented to the trial court below.

III.     The trial court’s denial of the City’s plea to the jurisdiction was correct
         because the City failed to affirmatively and conclusively negate
         Appellees’ basis for jurisdiction.

         Once a plaintiff has alleged facts that affirmatively establish the trial court’s

subject-matter jurisdiction over a claim, the burden shifts to the entity asserting

governmental immunity to affirmatively and conclusively negate the existence of

jurisdiction.51 In this sense, the evaluation of a governmental entity’s plea to the

jurisdiction is not unlike consideration of a traditional motion for summary judgment

under Rule 166a(c) of the Texas Rules of Civil Procedure.52

         A.     An entity’s governmental immunity is waived for harm caused by
                the failure of policy implementation.

         In response to Appellees’ proper pleading of a claim for which the City

possesses no governmental immunity, the City contends that the action (or inaction)



51
     Winder, 280 S.W.3d at 555.
52
     Miranda, 133 S.W.3d at 228; Winder, 280 S.W.3d at 555.


                                                - 16 -
at issue is one of policy formulation, not policy implementation, and therefore the

City’s governmental immunity remains intact.           This Court should reject this

contention for the reasons set forth below.

          The Texas Supreme Court has recognized there are multiple tests under Texas

law to determine whether a governmental entity’s actions constitute the formation

of policy or the implementation of policy: (1) the policy/operational test, which

compares policy decisions to subordinate decisions, and (2) the design/maintenance

test, which protects an entity’s initial design decisions but not the decisions made

once the design has been installed.53 The determination of whether a governmental

entity’s actions constitute policy formulation or policy implementation is a question

of law.54

          As an example, in Stephen F. Austin State University v. Flynn, a woman was

knocked off of her bicycle by an oscillating sprinkler while riding along a path on

the university’s campus.55 The university argued that the design of its irrigation

system (i.e., where to place sprinklers and how to run them) was a discretionary

decision for which it was immune. 56 The Texas Supreme Court rejected that




53
     Flynn, 228 S.W.3d at 657.
54
     Id. at 657.
55
     Id. at 655.
56
     Id. at 657.


                                              - 17 -
argument, finding that the decisions on when and where to spray water were

operational- or maintenance-level decisions for which the university was not

immune.57

         In this case, the policy decision at issue is the Department’s stated policy of

eliminating or controlling identified hazards.58 Appellees have alleged and provided

evidence that the City identified the section of the Hike & Bike Trail that passes

under Lamar Boulevard as a safety hazard for its users and that the City’s failure to

eliminate or control this safety hazard was a negligent failure to implement the City’s

stated policy.59

         B.       The City itself concluded there was a failure of policy
                  implementation.

         The City itself reached the same conclusion in the City auditor’s report from

February 2014:60

     WHAT WE FOUND


     While FARO management has developed and approved policies wrned at
     identifying and rriariaging hazards related to patron safety.PARD ekecutive
     management has not allocated the appropriate skills, structures, and resources to
     support the implementation of its patron safety




57
     Flynn, 228 S.W.3d at 658.
58
     See CR 60.
59
     CR 17, 60.
60
     CR 56 (first image), 60 (second image).


                                               - 18 -
 3. Hazard correction
 As indicated above, after detection, significant current and potential hazards should be prevented,
 corrected, or controlled in a timely manner. Per PARD policies, when a hazard is identified, it is
 either corrected by eliminating the cause oft he hazard at the source or is effectively controlled,
 such as controlling or limi in access to a specific area However, as shown in Exhibit 2, currefaly
 &lore is no mechanism 10 ensure that once identified, hazards are actually corrected,

                                                  EXHIBIT 2
                          Implementation of Patron Safety Hazard Correction Policies
                             .............................


     I+e Safety Of ricer siroukl co Flo Li a                               round ria , .c1    c that routing
     folly   p inspections to ensure                                   follow-up is conducted
     corrective action litaken
     The Safety Office is responsible for                               Documentation needed to evaluate
     monitoring the implementatioof the                                 compliance with the safety program
     safety program to ensure co rn pilance                           : is not maintained in a central location
 SOURCE: PARE) poficies.nd OCA observations during the course of this audit, September-December 2.013

 Over the course of our audit, we found various ins-tan           of delays in addressing identified safety
 hazards. For example.


The report even used the language approved by the Texas Supreme Court in Flynn

that there was a failure of “implementation.”

          It is difficult to imagine more dispositive evidence that an entity’s action or

inaction was the result of policy implementation than a report from the entity’s audit

office stating “executive management has not allocated the appropriate skills,

structures and resources to support the implementation of its patron safety

policies.”61 This is direct and compelling evidence from the City itself that Colonel

Griffith’s death and Ms. Pulido’s injuries resulted from the City’s failure to

implement a policy that was in place to prevent just such an occurrence. Thus, the


61
     CR 56 (emphasis added).


                                                             - 19 -
trial court correctly denied the City’s plea to the jurisdiction.

          C.       The conclusion reached by the City is consistent with the findings
                   of other Texas appellate courts.

          The City’s own characterization of its actions (a failure to implement policy)

is actionable and Appellees’ ability to assert their claims is supported by the

decisions of other Texas appellate courts concluding that a city department’s failure

to take action regarding a decision already reached constitutes the negligent

implementation of a discretionary decision for which there is no governmental

immunity.62 In Zambory v. City of Dallas, a bicyclist was struck at an intersection

that did not have a traffic signal. 63 Before the incident, concerned citizens had

repeatedly contacted the city’s transportation department about the lack of a signal,

spoken at city council meetings, and warned the city that signs at the intersection

were inadequate.64 A day before the bicyclist was injured, a Dallas city council

member stated on the record that a temporary signal needed to be installed, but no

motion was made and no vote was taken.65 The Dallas court of appeals reversed the

trial court’s grant of summary judgment on immunity grounds, finding that a fact




62
  See City of Midland v. Sullivan, 33 S.W.3d 1, 15 (Tex. App.—El Paso 2000, pet. dism’d);
Zambory, 838 S.W.2d at 582.
63
     Zambory, 838 S.W.2d at 581–82.
64
     Id. at 583.
65
     Id. at 581–82.


                                              - 20 -
issue existed on whether the city had formulated policy by deciding that the

intersection was dangerous and that a temporary signal was necessary, but had

simply failed to implement it.66

          In City of Midland v. Sullivan, a student was struck in a crosswalk after a

school zone sign did not activate in time for early-morning classes.67 The El Paso

court of appeals held that the city’s initial decision to establish a school zone and its

hours of operation were discretionary, but the city’s failure to keep the parameters

of the school zone accurate and current (like the school zone sign) was a negligent

implementation of the city’s own policy and prior determination.68

          Just as in Zambory and Sullivan—which were presented in Appellees’

briefing in the trial court below 69 but not distinguished or even discussed in the

City’s appellate brief—the City in this case had:

      • an existing policy (to eliminate or control identified safety hazards);

      • identified a safety hazard (the danger posed to users of the Hike & Bike Trail
        near the intersection of West César Chávez Street and Lamar Boulevard); and

      • negligently failed to implement its own policy (delayed in addressing
        identified safety hazards).



66
     See Id. at 583.
67
     See Sullivan, 33 S.W.3d at 5.
68
     See id. at 15.
69
     CR 38–40.


                                              - 21 -
Under Flynn, Zambory, and Sullivan, these actions establish a waiver of the City’s

governmental immunity for Colonel Griffith’s death and Ms. Pulido’s injuries.

          D.     The City’s attempt to characterize its failure to eliminate or control
                 a safety hazard as a discretionary policy-formulation decision
                 misunderstands Texas law.

          Retreating somewhat, the City attempts to distinguish Flynn by claiming no

policy-formulation decision was ever made and points to a sentence in the City

auditor’s report that says: “It is unclear when a decision will be made regarding

safety at that location.”70 The City misunderstands Appellees’ arguments and the

contents of its own auditor’s report.

          As noted earlier, the policy-formulation decision at issue is the Department’s

policy of eliminating or controlling identified safety hazards, and the policy-

implementation decision (or lack thereof) is how to go about eliminating or

controlling the identified hazard. 71 The City’s failure to eliminate or control an

identified safety hazard referenced in the City auditor’s report (“It is unclear when a

decision will be made regarding safety at that location.”) was a policy-

implementation decision, not the absence of a policy-formulation decision. The




70
     Appellant’s Brief, at 13 (citing CR 17, 60).
71
  See CR 38 (“The Policy decision at issue is the Austin Parks and Recreation Department’s stated
policy of correcting or controlling identified hazards. The failure to make the section of the Hike
& Bike Trail that passes under Lamar Boulevard safe for its users, after the hazard was identified,
was a negligent failure to implement stated policy.”)


                                                    - 22 -
Texas Supreme Court reached the same conclusion in Flynn: the university’s

decision to irrigate the campus was one of policy formulation, and its decision to

operate the irrigation system during peak periods of public use was one of policy

implementation.72

          The City next claims that, even if a policy-formulation decision occurred, the

follow-up decision not to implement safety measures was another discretionary one

for which the City is still immune: “If addressing safety hazards is a discretionary

policy decision, then so is determining the best way to go about doing so.”73 This

argument was implicitly rejected in Flynn.74

          There, the Supreme Court approved the reasoning of the Fort Worth court of

appeals in Bennett v. Tarrant County Water Control & Improvement Dist. No. 1

when it stated that “the decision to release water from a spillway constitutes policy

formulation for which the water district is immune, but that the subordinate decision

of determining the volume of the outflow is policy implementation for which the

district is not immune.”75 In other words, simply because an action involves choice

does not make it “discretionary” so as to preserve governmental immunity.




72
     Flynn, 228 S.W.3d at 657–58.
73
     Appellant’s Brief, at 22.
74
     Flynn, 228 S.W.3d at 657.
75
     Id. at 657 (citing Bennett, 894 S.W.2d 441, 452 (Tex. App.—Fort Worth 1995, writ denied)).


                                                  - 23 -
      Under Flynn, the City’s decision on how to eliminate or control an identified

safety hazard (where the Lady Bird Lake Hike & Bike trail approaches West César

Chávez Street under the Lamar Boulevard overpass) is no different than a decision

on the volume of water to release through a spillway: both constitute the

implementation of an earlier policy-formulation decision.

      E.    The City’s insistence that this is a case about roadway design does
            not make it so, and therefore the City may not raise the defense of
            governmental immunity.

      This case is not pleaded as a roadway-design case nor can the City amend

Appellees’ pleadings to make it so. As demonstrated above, both the pleadings and

evidence presented by Appellees complain of the City’s failure to implement stated

policies of the Parks and Recreation Department, not the design of West César

Chávez Street. Despite the factual allegations in Appellees’ pleadings and the

arguments Appellees made in the trial court, the City continues to attempt to amend

Appellees’ pleadings by insisting that Appellees are actually complaining of

roadway design and, therefore, the City is immune for such decisions.

      The cases cited by the City in an attempt to characterize Appellees’ cause of

action as a complaint regarding roadway design are inapplicable and distinguishable.

In Texas Department of Transportation v. Hathorn, for example, this Court granted

a plea to the jurisdiction after concluding the plaintiffs’ complaints were “based




                                          - 24 -
entirely on TxDOT’s roadway design.” 76 This decision was largely because the

plaintiffs’ expert witnesses had offered opinions critical of the roadway’s design.77

No such evidence exists in this case.

         In Wenzel v. City of New Braunfels, the city’s plea to the jurisdiction was

granted because this Court concluded the plaintiffs were challenging the city’s

decision to regulate traffic near the fairgrounds. 78 There is no mention of any

allegations in the Wenzel opinion that the city had made a decision to implement

traffic control or safety measures and had failed to do so, as there are in this case.79

         In sum, the City’s arguments and evidence are insufficient to persuade this

Court that Appellees’ harm was caused by a discretionary decision like policy

formulation, much less affirmatively and conclusively establish such a proposition.

For this reason, the trial court correctly denied the City’s plea to the jurisdiction.

IV.      The trial court’s decision was also correct because, at a minimum, fact
         issues exist as to whether the City made a policy-formulation decision and
         simply failed to implement it.

         Even if a city asserts and supports with evidence that the trial court lacks

subject-matter jurisdiction, a plea to the jurisdiction should not be granted if disputed



76
  No. 03-11-00011-CV, 2012 Tex. App. LEXIS 5906, at *23 (Tex. App.—Austin July 19, 2012,
no pet.).
77
     Hathorn, 2012 Tex. App. LEXIS 5906, at *21–23.
78
     Wenzel v. City of New Braunfels, 852 S.W.2d 97, 99–100 (Tex. App.—Austin 1993, no writ).
79
     See CR 16–17.


                                                 - 25 -
material facts exist regarding the jurisdictional issue in question and that issue is

intertwined with the merits of the case.80 This protects plaintiffs from being required

to put on their entire case simply to establish subject-matter jurisdiction.81

          A large portion of the City’s brief consists of allegations that are actually

disputed material facts, such as its contention that there is no policy compelling the

City to eliminate or control identified safety hazards exists.82 Or its argument that,

even if such a policy did exist, the City had made no decision on what to do if a

safety hazard was identified at the location where Colonel Griffith was killed and

Ms. Pulido was injured.83 These disputed facts are material to both a waiver of

governmental immunity (whether the harm to Appellees was caused by a failure of

policy implementation, which, by definition, requires the existence of a “policy”)

and the merits of Appellees’ case (whether the City is liable to Appellees for

negligently failing to eliminate or control identified safety hazards).

          The trial court did not specify the basis for its decision to deny the City’s plea

to the jurisdiction.84 In such a situation, an appellate court will affirm if any of the




80
     Miranda, 133 S.W.3d at 228; Winder, 280 S.W.3d at 561–62.
81
     Miranda, 133 S.W.3d at 228; Winder, 280 S.W.3d at 562.
82
     Appellant’s Brief, at 4, 16, 18–21.
83
     Appellant’s Brief, at 4, 10, 13, 16, 21–22.
84
     CR 66.


                                                   - 26 -
grounds presented to the trial court are meritorious.85 Appellees specifically asserted

in the trial court that disputed jurisdictional facts should bar the City’s plea to the

jurisdiction.86 This ground was presented to the trial court, may have been relied on

by the trial court in denying the City’s plea to the jurisdiction, and, therefore, may

serve as basis for an order from this Court affirming the trial court’s decision.87

                                               PRAYER

         On May 7, 2012, the day of the incident, the City’s Parks and Recreation

Department had already identified the location on the Hike & Bike Trail where

Colonel Griffith was killed and Ms. Pulido was injured as a safety hazard. This is

not supposition by Appellees: according to the City auditor’s report, the City failed

to “allocate[] the appropriate skills, structures, and resources to support

implementation of its patron safety policies.”                This was a failure of policy

implementation under Texas law, which means the City may not hide behind

governmental immunity.

         Plaintiffs – Appellees Jennifer Frame, individually and as personal



85
  See San Patricio Mun. Water Dist. v. City of Corpus Christi, No. 13-10-00272-CV, 2011 Tex.
App. LEXIS 262, at *8 (Tex. App.—Corpus Christi Jan. 13, 2011, pet. denied); see also K-Mart
Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (“Because the trial court did not specify the
ground on which it [ruled], we will affirm the trial court’s ruling if any ground is meritorious.”).
86
     See CR 17, 40–42.
87
  See San Patricio Mun. Water Dist., 2011 Tex. App. LEXIS 262, at *8; Honeycutt, 24 S.W.3d at
360.


                                                  - 27 -
representative of the Estate of Colonel John William Griffith, Greg Griffith, Cheryl

Burris, and Diana Pulido therefore respectfully request an order affirming the trial

court’s decision to deny the City’s plea to the jurisdiction, and for such other and

further relief to which they may be justly entitled.



 Dated: August 26, 2015                     Respectfully submitted,

                                            HOWRY BREEN & HERMAN, LLP

                                             cl;.,-.
                                            _______________________________
                                            Sean E. Breen
                                            State Bar No. 00783715
                                            sbreen@howrybreen.com
                                            1900 Pearl Street
                                            Austin, Texas 78705-5408
                                            Tel. (512) 474-7300
                                            Fax (512) 474-8557

                                            Attorneys for Plaintiffs – Appellees
                                            Jennifer Frame, Greg Griffith, and
                                            Cheryl Burris

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

                                            Attorneys for Plaintiff – Appellee
                                            Diana Pulido




                                            - 28 -
                       CERTIFICATE OF COMPLIANCE
As required by Rule 9.4(e) of the Texas Rules of Appellate Procedure, I certify this
is a computer-generated document created in Microsoft Word 2013, using 14-point
typeface for all text, except for any footnotes, which are in 12-point typeface.

As required by Rule 9.4(i)(3), I certify that this brief contains 4,688 words, not
including the caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement of
issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and appendix. In
making this certificate of compliance, I am relying on the word count provided by



                                      c12
the software used to prepare this document.

                                         _______________________________
                                                   ,
                                                   , c,,.
                                         Sean E. Breen




                                          - 29 -
                        CERTIFICATE OF SERVICE

I certify that a true and correct copy of this document was delivered on August 26,
2015, in compliance with Rules 9.5(b) of the Texas Rules of Appellate Procedure,
to the parties listed and in the manner indicated below.

Karen M. Kennard, City Attorney          Electronic service
Meghan L. Riley, Chief, Litigation      □ In person
Chris Edwards, Assistant City           □ Registered mail, return receipt requested
Attorney                                □ Commercial delivery service
chris.edwards@austintexas.gov           □ Facsimile
City of Austin-Law Department            Electronic mail
P.O. Box 1546
Tel. (512) 974-2419
Fax (512) 974-1311

Attorneys for Defendant – Appellant


                                        cl ?,, c ,, .
City of Austin
                                        _______________________________
                                        Sean E. Breen




                                         - 30 -
                          No. 03-15-00292-CV


             IN THE COURT OF APPEALS FOR THE
             THIRD JUDICIAL DISTRICT OF TEXAS
                     AT AUSTIN, TEXAS


                           CITY OF AUSTIN,
                            Defendant – Appellant,

                                       V.


                         JENNIFER FRAME, ET AL.,
                             Plaintiffs – Appellees.


                    APPELLEES’ APPENDIX



Tab                        Description                      CR Range

 1    Appellees’ first amended petition                      11–21

      Parks and Recreation Department Patron Safety Audit
 2                                                           54–65
      conducted in February 2014
TAB 1
                                                                          5/7/2014 10:19:24 AM
                                                                                Amalia Rodriguez-Mendoza
                                                                                              District Clerk
                                                                                              Travis County
                                CAUSE NO. D-1-GN-12-003557                                 D-1-GN-12-003557


JENNIFER FRAME, INDIVIDUALLY, AND                      §     IN THE DISTRICT COURT OF
AS PERSONAL REPRESENTATIVE OF THE                     §
ESTATE OF JOHN WILLIAM GRIFFITH,                       §
GREG GRIFFITH, CHERYL BURRIS and                      §§
DIANA PULIDO                                           §
                                                      §§
vs.                                                   §      TRAVIS COUNTY, TEXAS
                                                      §§
THE CITY OF AUSTIN AND JOSEPH                         §
LOUIS ROSALES                                         §§     53rd JUDICIAL DISTRICT


                 PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, JENNIFER FRAME, Individually and as Personal Representative of the

       of John William
Estate of      William Griffith,
                       Griffith, GREG
                                 GREG GRIFFITH,
                                      GRIFFITH, CHERYL
                                                CHERYL BURRIS and DIANA
                                                                  DIANA PULIDO
                                                                        PULIDO

                                                                of Austin ("City") and Joseph Louis
("Plaintiffs") and file this Original Petition against The City of

                                                                      following:
Rosales ("Rosales"), and in support thereof, would show the Court the following:

                               DISCOVERY CONTROL PLAN

       Discovery shall
                 shall be conducted under
                       be conducted under Level
                                          Level 33 pursuant
                                                   pursuant to
                                                            to Rule
                                                               Rule 190
                                                                    190 of the Texas
                                                                               Texas Rules
                                                                                     Rules of

Civil Procedure. The damages
      Procedure. The damages to
                              to the
                                  the parties
                                      parties in
                                              in the case
                                                     case exceed
                                                          exceed a million dollars.

                                            PARTIES

       Plaintiff, JENNIFER FRAME, is an individual residing in Austin, Travis County, Texas.

       Plaintiff, GREG GRIFFITH, is an individual residing in Austin, Travis County, Texas

       Plaintiff, CHERYL BURRIS, is an individual residing in Plano, Texas.

       Plaintiff, DIANA PULIDO, is an individual residing in Austin, Travis County, Texas.




                                                -1-
                                                                                                       11
       Defendant CITY OF AUSTIN, is a home rule municipality existing under the laws of
                                                                                     of the

State of Texas,
State    Texas, and
                and may
                    may be served,
                           served, pursuant
                                   pursuant to
                                            to Tex. Civ. Prac.
                                               Tex. Civ. Prac. & Rem. Code
                                                               & Rem. Code § 17.024,
                                                                             17.024, by

serving its City Secretary at 301 West 2nd Street, Austin, Texas.

       Defendant, JOSEPH
       Defendant, JOSEPH LOUIS
                         LOUIS ROSALES,
                               ROSALES, is
                                        is an individual residing
                                           an individual residing in Austin,
                                                                     Austin, Texas and

has been
has been served
         served and
                and appeared
                     appeared through
                               through his
                                       his attorney,
                                            attorney, Virginia
                                                      Virginia Isabel
                                                                Isabel Hermosa,
                                                                       Hermosa, Hermosa
                                                                                Hermosa Law
                                                                                        Law

Firm, 503 West 17th Street, Suite 200, Austin, Texas 78701.

       Jennifer ("Jenny")
       Jennifer ("Jenny") Frame
                          Frame ("Frame")
                                ("Frame") isis the
                                               the Personal Representative of
                                                   Personal Representative of the Estate of
                                                                              the Estate

Decedent Colonel (Ret.)
                 (Ret.) John William Griffith
                                     Griffith and
                                              and Greg
                                                  Greg and Cheryl
                                                           Cheryl are
                                                                  are the son and daughter of

          Griffith. In her representative capacity as
Col. John Griffith.                                as Personal Representative
                                                               Representative for
                                                                              for Griffith's Estate,

Frame brings
Frame brings this survival action
             this survival action on               estate of
                                  on behalf of the estate of John
                                                             John William
                                                                  William Griffith
                                                                          Griffith for
                                                                                   for survival
                                                                                       survival

damages, including
damages, including pre-death
                   pre-deathterror
                             terrorand
                                    and pain,
                                        pain, medical
                                              medical bills
                                                      bills and
                                                            and funeral
                                                                funeral bills that his estate
                                                                        bills that     estate

incurred as
incurred as a result
              result of the tragic
                            tragic but avoidable
                                       avoidable incident
                                                 incident described
                                                          describedbelow.  In addition,
                                                                    below. In addition, as the
                                                                                           the

Personal Representative
Personal Representative for
                         for the
                              the Estate,
                                  Estate, Frame
                                          Frame also
                                                also brings
                                                     brings this         recover damages
                                                            this suit to recover damages for the

                                                                                     ofhis
pain, suffering, and mental anguish that John William Griffith sustained as a result of his injuries

and prior to his death.

       In addition, Jennifer Frame, Cheryl Burris
                                           Burris and Greg Griffith are
                                                                    are daughters
                                                                        daughters and
                                                                                  and the
                                                                                      the son of

Col. John William Griffith,
Col.              Griffith, and,
                            and, as such,
                                    such, they
                                          they are
                                               are proper
                                                   proper statutory
                                                          statutory wrongful
                                                                    wrongful death
                                                                             death beneficiaries
                                                                                   beneficiaries

under Texas Civil Practice and Remedies Code § 71.004. The Frames bring this wrongful death

                                                           of Col. John William Griffith for all the
suit in their individual capacity as the daughters and son of

damages properly recoverable in a wrongful death suit.

          addition, Jennifer
       In addition, Jennifer Frame
                             Frame was
                                   was bystander
                                       bystander and
                                                 and an
                                                     an eye
                                                        eye witness
                                                            witness to     fatal incident
                                                                    to the fatal  incident in

which her
which     father was
      her father was killed
                     killed in
                            in the
                                the incident
                                     incident described
                                              described below.
                                                        below. Frame
                                                               Frame brings
                                                                     brings this
                                                                            this suit    her
                                                                                 suit in her




                                                -2-
                                                                                                       12
individual capacity
individual capacity for
                    for the
                        the bystander
                            bystander damages
                                      damages and
                                              and mental
                                                  mental anguish
                                                         anguish that
                                                                 that she has sustained as the

       of being a bystander to
result ofbeing              to the
                               the incident that
                                            that caused
                                                 caused her
                                                        her father's fatal injuries.

        Diane Pulido
        Diane Pulido suffered
                     suffered serious
                              serious and
                                      and permanent  injuries as
                                          permanent injuries   as aa result
                                                                     result of this
                                                                               this incident
                                                                                     incident and
                                                                                              and

brings suit to recover her damages under applicable Texas law.

                            JURISDICTION, VENUE AND NOTICE

        This court
        This court has subject matter
                   has subject matter jurisdiction
                                      jurisdictionover
                                                   overthis
                                                        this action. Venue is proper
                                                             action. Venue    proper in
                                                                                     in Travis
                                                                                        Travis

County, Texas
County, Texas because,
              because, among
                       among several
                             several things, Travis County
                                     things, Travis County is where
                                                              where the
                                                                     the incident
                                                                          incident occurred.
                                                                                   occurred.

Plaintiff alleges
Plaintiff alleges that the damages
                  that the         sustained by Plaintiffs
                           damages sustained    Plaintiffs in each
                                                              each capacity
                                                                   capacity greatly
                                                                            greatly exceed
                                                                                    exceed the

minimal jurisdictional
        jurisdictional threshold limits of
                       threshold limits of this
                                           this Court. Plaintiffs have given
                                                Court. Plaintiffs      given all
                                                                             all required
                                                                                 required notices to

bring this
bring      action. Prior
      this action. Prior to
                          to the
                              the filing
                                   filing of
                                           ofthis
                                              this lawsuit,
                                                    lawsuit, and
                                                              and within
                                                                  within the
                                                                          the time
                                                                               time period
                                                                                    period prescribed
                                                                                           prescribed from
                                                                                                      from

         of the occurrence
the date of     occurrence described in this petition, Plaintiffs presented notice
                                                                            notice of their claim to

           representative of
the proper representative of the
                             the City
                                 City of Austin
                                         Austin as
                                                as required. Additionally, at all
                                                   required. Additionally,    all relevant
                                                                                   relevant times,
                                                                                            times,

Defendant City of Austin has had actual notice of Plaintiffs' injuries
                                                              injuries and
                                                                       and damages
                                                                           damages through actual

                                                 of this action was investigated by the Austin Police
notice, as, e.g., the incident forming the basis of

Department and
Department and other
               other city
                     city authorities
                          authoritiesininthe  dischargeof
                                          thedischarge     official duties.
                                                        of official duties. As
                                                                            As a result
                                                                                 result of
                                                                                        of that
                                                                                           that

investigation The City of Austin acquired full,
                                          full, complete, and actual knowledge of
                                                                               of the occurrence

giving rise to
giving rise                cause of
            to Plaintiffs' cause of action
                                    action and
                                           and that
                                               that Plaintiffs
                                                    Plaintiffs were asserting
                                                                    asserting a claim based on the

occurrence.

                               FACTS AND CAUSES OF ACTION

                                                                                    Street,
        On or about May 7, 2012, Rosales was driving eastbound on West Cesar Chavez Street,

   Austin, Travis
in Austin, Travis County
                  County Texas. Col. John
                         Texas. Col.  John William
                                           William Griffith,
                                                   Griffith, an 80 year
                                                             an 80 year old
                                                                        old Veteran
                                                                            Veteran and
                                                                                    and

        friend, father and grandfather, was walking with Jenny, one of
beloved friend,                                                     of his daughters, eastbound

                                    location where North Lamar Blvd. crosses over West Cesar
on the Hike and Bike trail near the location




                                                   -3-
                                                                                                             13
Chavez Street.
Chavez Street. Diane
               Diane Pulido
                     Pulido was also walking
                            was also walking along
                                             along the trail
                                                        trail when,
                                                              when, suddenly
                                                                     suddenly and
                                                                              and without
                                                                                  without

warning, Rosales drove
warning, Rosales drove the
                       the 1995 Hyundai off of Cesar Chavez,
                           1995 Hyundai              Chavez, over the curb and, along with

objects
objects that included
             included a traffic warning sign installed by the City,
                                                              City, struck
                                                                    struck John
                                                                           John William
                                                                                William Griffith
                                                                                        Griffith

and Diana
and Diana Pulido
          Pulido as they were
                 as they were walking
                              walking on the Trail.
                                      on the Trail. John
                                                     JohnWilliam
                                                         William Griffith
                                                                  Griffith was
                                                                           was seriously
                                                                                seriously

injured
injured and
        and later
            later died
                  died from
                       from his
                            his injuries
                                injuries the
                                         the next
                                             next morning
                                                  morning on
                                                          on May
                                                             May 8,
                                                                 8, 2012.
                                                                    2012. Diana
                                                                          Diana Pulido
                                                                                Pulido was

seriously and permanently
              permanently injured. At the
                          injured. At  the time
                                            time that
                                                  that Mr.
                                                       Mr. Griffith
                                                           Griffith was on
                                                                        on the Hike and Bike trail,

his
his daughter, Jenny, was
    daughter, Jenny, was walking
                         walking with
                                 with him
                                      him and
                                          and was
                                              was a witness
                                                    witness to
                                                            to the
                                                                the incident
                                                                     incident and
                                                                              and narrowly
                                                                                  narrowly

escaped serious
        serious injury or death
                          death herself.
                                herself. Plaintiffs
                                         Plaintiffs allege
                                                    allege that
                                                           that Rosales was negligent, and that his

negligence was aa proximate
negligence was              cause of
                  proximate cause of the
                                     the incident,
                                         incident, the
                                                   the death
                                                       death of
                                                             of Griffith,
                                                                Griffith, and
                                                                          and the
                                                                               the damages
                                                                                    damages

sustained by his Estate, the damages sustained by Frame in her individual capacity as a statutory

wrongful death,
wrongful death, the damages sustained
                the damages sustained by
                                      by Frame
                                         Frame in her individual
                                                      individual capacity
                                                                 capacity as    eye witness
                                                                          as an eye witness

bystander to
bystander        horrendous incident
          to the horrendous incident which
                                     which killed
                                           killed her father, and the
                                                  her father,     the damages
                                                                      damages sustained
                                                                              sustained by

Diana Pulido.
      Pulido. But
              Butthe
                  the danger
                       danger facing
                               facing Plaintiffs
                                      Plaintiffs that
                                                  that afternoon
                                                        afternoon should
                                                                  should never
                                                                         never have
                                                                               have happened
                                                                                    happened and

never should have
             have resulted
                  resulted in
                           in any
                              any death
                                  death or
                                        or injury
                                           injury in
                                                  in 2012.
                                                     2012. The
                                                           The danger
                                                               danger of
                                                                      of aa vehicle
                                                                            vehicle jumping the

curb
curb and entering upon and travelling
         entering upon                down the
                           travelling down the Hike
                                               Hike and Bike Trail in that location
                                                                           location was well

known
known to the City for years
      to the          years before
                            before this
                                   this tragedy.
                                        tragedy. This
                                                  This death
                                                        death and
                                                               and damages
                                                                    damages would
                                                                            would have
                                                                                  have been
                                                                                       been

easily prevented if the City had simply
                                 simply implemented
                                        implemented inexpensive
                                                    inexpensive construction
                                                                construction and maintenance
                                                                                 maintenance

measures it previously identified
measures               identified and
                                  and knew
                                      knew were
                                           were needed
                                                needed to
                                                       to guard and protect users of the Hike

and Bike Trail in that location.


  THE CITY OF AUSTIN WAS NEGLIGENT AND GROSSLY NEGLIGENT AND A
                CAUSE OF THE DAMAGES OF PLAINTIFFS

       The Ann and Roy Butler Hike-and-Bike
                              Hike-and-Bike Trail
                                            Trail at Lady Bird Lake ("Hike and Bike Trail")

is owned,
   owned, constructed, controlled and
          constructed, controlled and maintained
                                      maintainedby
                                                 bythe
                                                    theCity
                                                       Cityof
                                                            of Austin.
                                                               Austin. The
                                                                       The City
                                                                           City markets
                                                                                markets and




                                                -4-
                                                                                                      14
                                     of the Crown Jewels of
touts the Hike and Bike Trail as one of                  of Austin and publicizes that the Hike

         Trail sees
and Bike Trail      1.5 million
               sees 1.5 million visitors
                                visitors aa year,
                                            year, with
                                                  with that
                                                       that number
                                                            number expected
                                                                   expectedtoto grow.
                                                                                grow. On May 7,

2012, Col. Griffith, his daughter Jenny and Diana Pulido were using the Hike and Bike Trail in a

manner and permitted
           permitted use
                     use expected
                         expected by the City when their lives were shattered by what was to

them an uncommon, hidden peril - a vehicle and property debris dangerously barreling down the

Hike and Bike Trail - aa condition
                         condition and
                                   and danger
                                       danger that
                                              that they
                                                    they did
                                                         did not
                                                             not reasonably
                                                                  reasonably expect
                                                                             expect to
                                                                                    to encounter.
                                                                                       encounter.

But it was aa danger
              danger and
                     and peril
                         peril that
                               that the
                                    the City of Austin
                                        City of Austin knew
                                                       knew existed,
                                                            existed, never
                                                                     never warned of
                                                                                  of and
                                                                                     and should
                                                                                         should

have corrected
have corrected and averted through
               and averted through simple
                                   simple construction
                                          constructionand
                                                       andmaintenance. Instead, the
                                                          maintenance Instead,  the City
                                                                                    City

failed    safely construct
failed to safely construct and
                           and maintain
                               maintain the
                                        the Trail
                                            Trail for
                                                   for the
                                                        the worst
                                                            worst reason
                                                                   reason possible
                                                                           possible —
                                                                                    - to
                                                                                      to save
                                                                                         save a little

money.

         The City, including the Parks and Recreation Department, failed to maintain the Trail in a

reasonably safe
reasonably safe condition, failed to
                condition, failed to adequately
                                     adequately warn
                                                warn of the
                                                        the unsafe
                                                            unsafe condition
                                                                   condition and
                                                                             and failed
                                                                                 failed to
                                                                                        to fix or

repair the
repair the dangerous condition of
           dangerous condition of the
                                   the Trail. The danger
                                       Trail. The danger that
                                                         that killed
                                                              killed and
                                                                     and injured
                                                                          injured the Plaintiffs
                                                                                      Plaintiffs in

2012 was nothing
         nothing new    unknown to
                 new or unknown to the
                                   the City of Austin.
                                               Austin. In the 15
                                                              15 years before 2012,
                                                                              2012, the City

                 13 prior
knew of at least 13 prior instances
                          instances of
                                    of vehicles dangerously travelling
                                                            travelling up
                                                                       up over the curb and onto

                        in the
the Hike and Bike Trail in the same
                               same or
                                    or substantially
                                        substantially same
                                                      same location.
                                                           location. Through nothing more than

serendipity and
serendipity and dumb
                dumb luck,
                     luck, some
                           some of those
                                   those incidents
                                         incidents involved
                                                   involved no injuries to
                                                            no injuries to people using the

Trail. But
Trail. Butother
           otherincidents
                 incidents did
                           did involve
                                involve contact
                                        contact with
                                                with Trail
                                                     Trail users    vehicles or debris,
                                                           users by vehicles    debris, or both,
                                                                                           both,

including one
including one in 1999 when
              in 1999 when Gov. George W.
                           Gov. George W. Bush
                                          Bush and
                                               and part        detail was struck by debris
                                                   part of his detail               debris

when a truck and trailer
when             trailer lost control
                              control at
                                      at the
                                         the same
                                             same location.  In that
                                                  location. In   that case,
                                                                       case, aa truck
                                                                                 truck travelling
                                                                                        travelling east
                                                                                                   east

along First Street running
along              running parallel
                           parallel to
                                    to the
                                       the Hike
                                           Hike and Bike trail was pulling a trailer full of
                                                                                          of debris,
                                                                                             debris,

          scraps of wood and
including scraps         and chunks
                             chunks of concrete. The driver
                                       concrete. The driver lost
                                                            lost control.
                                                                 control. The
                                                                          The trailer overturned.

Debris went
Debris went flying
            flying across
                   acrossthe
                          the Hike
                              Hike and
                                    and Bike
                                        Bike Trail. Gov. Bush,
                                             Trail. Gov.       accompanied by
                                                         Bush, accompanied      Texas
                                                                           by a Texas




                                                 -5-
                                                                                                          15
Department of Public Safety agent on a bicycle, happened to be jogging past. "I heard the noise,

looked back,
looked back, saw
             saw itit start    tip and
                      start to tip and my
                                       my instincts
                                           instincts were
                                                     were to
                                                           to dive,"
                                                               dive," he
                                                                      he later
                                                                          later told
                                                                                 told reporters.
                                                                                       reporters. Bush
                                                                                                  Bush

ducked behind the bridge support and sustained only a scrape to his hip.
                                                                    hip. The DPS agent was not

   lucky; Staff Sgt.
as lucky;       Sgt. Roscoe
                     Roscoe Hughey
                            Hughey had
                                   had to
                                       to be
                                          be pulled
                                             pulled from
                                                    from the
                                                         the rubble
                                                             rubble and
                                                                    and hospitalized. There
                                                                        hospitalized. There

were other similar incidents between 1999 and before 2012, including contact with a pedestrian

and pedestrian
    pedestrian control devices by
               control devices by vehicles
                                  vehicles or
                                           or debris. Yet, the
                                              debris. Yet,  the City
                                                                City did
                                                                     did nothing,
                                                                         nothing, despite
                                                                                  despite policies

that called for action.

        The City
        The City cannot
                 cannot possibly
                        possibly deny
                                 deny it was on
                                      it was on notice of the
                                                notice of  the dangerous
                                                                dangerous condition
                                                                          condition and the
                                                                                        the

undisputed need to
undisputed need    construct and
                to construct     maintain protection
                             and maintain protection as
                                                     as these
                                                        these incidents
                                                              incidents occurred. Concerned
                                                                        occurred. Concerned

citizens even contacted
citizens      contacted the                                                 maintenance to cure
                        the City to request protection and construction and maintenance

the peril.
the         Chillingly,one
    peril. Chillingly,  onecitizen
                            citizenexplicitly
                                    explicitly warned
                                               warned the
                                                      the City
                                                          City in
                                                               in 2005
                                                                  2005 that
                                                                       that the
                                                                            the very
                                                                                very peril at this

very location
very location where
              where this tragedy
                          tragedy later
                                   later occurred
                                         occurred was
                                                  was "a
                                                       "apedestrian/runner
                                                          pedestrian/runner fatality
                                                                            fatality waiting
                                                                                     waiting to

          Infact,
happen." In  fact,that
                   thatisisexactly
                            exactlywhat
                                    whatthe
                                         theCity
                                             Citydid
                                                  did-
                                                     — wait for a fatality to happen.

        Moreover, as
        Moreover,    early as 2005,
                  as early    2005, the
                                     the Parks
                                         Parks and
                                                and Recreation
                                                     Recreation Department
                                                                Department identified
                                                                           identified the
                                                                                      the very

hazard that ultimately
hazard      ultimately killed                 Plaintiffs, and pursuant
                       killed and injured the Plaintiffs,                 policy, recognized
                                                              pursuant to policy, recognized the

need for
need for action
         action to
                to protect
                   protect users
                           users of the Trail
                                        Trail in
                                               in that
                                                   that location
                                                         location and
                                                                  and called
                                                                      called for
                                                                              for and
                                                                                  and supported
                                                                                       supported the
                                                                                                 the

construction of
construction of aa guardrail
                   guardrail or
                             or barrier.
                                barrier. Yet, itit drug
                                                   drug its
                                                        its heels
                                                            heels and
                                                                  and failed
                                                                      failed to act
                                                                                act pursuant
                                                                                    pursuant to policy

already in
already    place to
        in place    construct and
                 to construct and maintain
                                  maintainaa fix
                                              fix for
                                                  for the
                                                       the danger. In fact,
                                                           danger. In  fact, less
                                                                              less than
                                                                                    than two
                                                                                          two months
                                                                                              months

before this incident, the PARD director noted "concerns keep coming up" and that citizens were

asking why
asking why a barrier had not yet been installed
                                      installed on the North shore
                                                             shore of
                                                                   of Lady
                                                                      Lady Bird
                                                                           Bird Lake
                                                                                Lake directly
                                                                                     directly

                                                                            of Cesar Chavez for
under Lamar Blvd., especially when one had been installed on the north side of

the bike path users. But none
              users. But none was
                              was constructed.
                                  constructed. Incredibly,
                                                Incredibly, the
                                                             the estimated
                                                                 estimated $35,000
                                                                           $35,000 cost
                                                                                   cost was cited

                         constructed. Shockingly
as one reason it was not constructed. Shockingly and
                                                 and more
                                                     more repugnant,
                                                          repugnant, the fact that no one had




                                                 -6-
                                                                                                         16
been killed yet was cited as another reason. This ministerial
                                     reason. This ministerial failure
                                                               failure to
                                                                       to correct
                                                                          correct identified
                                                                                   identified hazards

                       of maintenance and construction of
and implement a policy of                              of corrections and safeguards to protect

patrons was
patrons was a proximate cause of
              proximate cause of this
                                  this incident.  This was
                                        incident. This was not
                                                           not an isolated
                                                                  isolated incident.   failure to
                                                                           incident. A failure

implement policies has
                   has plagued
                       plagued the
                               the City of Austin
                                           Austin Parks
                                                  Parks and
                                                        and Recreation
                                                            Recreation Department.
                                                                       Department. In fact, the

incident made the basis of this lawsuit was recently cited by the City Auditor as one example of
         made the

delays by
delays        PARD in
       by the PARD in addressing
                       addressing identified
                                  identified safety hazards:1 Addressing
                                             safety hazards.   Addressing identified
                                                                           identified safety
                                                                                       safety

                             - ititisismandatory
hazards is not discretionary —          mandatoryand
                                                  andministerial.
                                                     ministerial. The
                                                                  The report found that PARD is not

managing safety
managing safety hazards
                hazards effectively
                        effectively and
                                    and there
                                        there is limited assurance
                                              is limited assurance that hazards
                                                                        hazards are
                                                                                are promptly
                                                                                    promptly

identified and
identified and corrected. The failure
               corrected. The         of the
                              failure of the City
                                             City to
                                                  to act
                                                     act on
                                                         on clear
                                                            clear policy
                                                                  policy in
                                                                         in place
                                                                            place to
                                                                                  to protect
                                                                                     protect people

                                                                              of the devastating
such as the Plaintiffs was negligence, gross negligence and a proximate cause of

injuries here and is actionable.

         The acts
         The acts and omissions
                      omissions in this matter
                                in this matter and
                                               and over the
                                                        the course
                                                            course of
                                                                   of the
                                                                       the previous
                                                                           previous 13
                                                                                    13 similar
                                                                                        similar

                                        - they
incidents are more than mere negligence —  theyare
                                                aregross
                                                    grossnegligence.
                                                          negligence. The acts and omissions of
                                                                      The acts

         involved the subjective
the City involved     subjective awareness
                                 awareness of an extreme
                                                 extreme degree
                                                         degree of
                                                                of risk,
                                                                    risk, indicating
                                                                           indicating conscious
                                                                                      conscious

indifference to
indifference  to the
                 the rights,
                     rights, safety
                             safety and
                                    and welfare
                                        welfare of
                                                of others. Knowing about the danger and peril at
                                                   others. Knowing

issue for
issue     years, the
      for years,     City did
                 the City did nothing
                              nothing to warn or guard
                                      to warn    guard against
                                                       against it in
                                                                   in what
                                                                      what amounts
                                                                            amounts to
                                                                                    to gross
                                                                                       gross

negligence and
negligence and willful,
               willful, wanton
                        wanton and
                               and malicious
                                   malicious inaction.
                                              inaction. In short,          of Austin
                                                           short, the City of Austin knew about
                                                                                          about

the peril, but its acts and omissions demonstrate that it simply did not care.

         PREMISES DEFECT

                                                 if necessary, Defendant City of
         Pleading further and in the alternative if                           of Austin may be held

               court of
to answer in a court of law
                         law for
                             for the
                                  the conduct
                                      conduct and
                                              and occurrence
                                                  occurrence as
                                                             as described
                                                                described above
                                                                          above and
                                                                                and incorporated
                                                                                     incorporated

1
1      person was
 "One person   was killed,
                   killed, and another seriously injured, when a car jumped the curb on the Town Lake Trail in May
2012. AA temporary
          temporary guardrail
                    guardrail was
                                was installed
                                     installed at the location and remains today.       is unclear
                                                                           today. ItIt is  unclear when
                                                                                                   when a decision will be
made regarding safety at the
                           the location.  In 1999,
                               location. In  1999, the
                                                    the Governor
                                                        Governor was
                                                                  was injured at the same location." From the PARD
Patron Safety Audit at p. 4, February 2014, finding PARD has not allocated appropriate skills, structures and
resources to support the implementation of  of its patron safety policies.


                                                           -7-
                                                                                                                             17
here because
here because the injuries and
             the injuries     damages made
                          and damages made the
                                           the basis
                                               basis of this
                                                        this suit were caused
                                                                       caused by aa premises
                                                                                    premises

                                       of sovereign immunity from suits alleging personal injury
defect and fall under a limited waiver of

or death caused by premises defects.

       SPECIAL DEFECT

                                               if necessary, Defendant City of
       Pleading further and in the alternative if                           of Austin may be held

               court of
to answer in a court of law
                         law for
                             for the
                                  the conduct
                                      conduct and
                                              and occurrence
                                                  occurrence as
                                                             as described
                                                                described above
                                                                          above and
                                                                                and incorporated
                                                                                     incorporated

here because the injuries
                 injuries and damages
                              damages were caused by a special defect and fall under a limited
                                      were caused                                      limited

waiver    sovereign immunity
waiver of sovereign immunity from suits alleging
                             from suits alleging personal
                                                 personal injury
                                                          injury or death caused
                                                                          caused by special
                                                                                    special

defects.

       RECREATIONAL USE STATUTE

                                               if necessary, Defendant City of
       Pleading further and in the alternative if                           of Austin may be held

               court of
to answer in a court of law
                         law for
                             for the
                                  the conduct
                                      conduct and
                                              and occurrence
                                                  occurrence as
                                                             as described
                                                                described above
                                                                          above and
                                                                                and incorporated
                                                                                     incorporated

here because the injuries
                 injuries and damages
                              damages were caused by
                                      were caused by the
                                                     the City's breach of
                                                                       of even the modest duty

owed to Plaintiffs under the recreational use statute and fall under a limited waiver of
                                                                                      of sovereign
                                                                                         sovereign

immunity from suits alleging personal injury or death caused by that breach.

                                           DAMAGES
                                           DAMAGE S

                   of the acts
       As a result of     acts and/or
                               and/or omissions
                                      omissions set
                                                set out,
                                                    out, Griffith
                                                         Griffith sustained
                                                                  sustained serious injuries which

resulted in his
            his death. Griffith's death
                death. Griffith's death was
                                        was not,
                                            not, however, instantaneous.
                                                          instantaneous. Furthermore,
                                                                         Furthermore, as a direct

result of Griffith's death,
                     death, Jenny
                            Jenny Frame,
                                  Frame, Cheryl
                                         Cheryl Burris
                                                Burris and
                                                       and Greg Griffith have sustained damages

as well.  Jenny Frame
   well. Jenny  Frame isis also
                            also entitled
                                  entitled to
                                            to damages
                                               damages as
                                                       as aa bystander
                                                             bystander who witnessed the needless and

avoidable tragedy.
avoidable          Plaintiffs hereby
          tragedy. Plaintiffs hereby make
                                     make aa claim
                                             claim for
                                                    for all
                                                        all past
                                                            past and
                                                                  and future
                                                                       future damages
                                                                              damages recoverable
                                                                                       recoverable

under Texas                     the Wrongful
      Texas law and pursuant to the Wrongful Death
                                             Death Act and
                                                       and Survival
                                                           Survival Action
                                                                    Action and
                                                                           and bystander
                                                                               bystander

claims in an amount within the jurisdictional
claims                                        limits of the
                               jurisdictional limits        Court and which
                                                        the Court     which the jury deems as




                                                 -8-
                                                                                                        18
just and fair, to include, but not limited to, the following:
                                                   following:

          1.
          1.          conscious physical pain and mental
                  The conscious                   mental anguish
                                                         anguish JOHN
                                                                 JOHN GRIFFITH
                                                                      GRIFFITH experienced
                                                                               experienced

prior to his
prior    his death,
             death, including
                     including the physical
                                   physical pain and mental
                                                     mental anguish
                                                            anguish he experienced
                                                                       experienced up to his
                                                                                   up to

untimely death;

          2.
          2.      All reasonable
                  All  reasonable and
                                  and necessary
                                      necessary medical
                                                medical expenses
                                                        expenses for
                                                                 for any
                                                                      any emergency
                                                                           emergency care
                                                                                      care

associated with
associated with the
                the attempts
                    attempts to save the life
                             to save      life of
                                                ofJOHN
                                                   JOHN GRIFFITH,
                                                         GRIFFITH, and
                                                                   and all
                                                                        all reasonable
                                                                             reasonable and
                                                                                        and

                                      of JOHN GRIFFITH;
necessary funeral and burial expenses of

          3.
          3.      The pre-death terror JOHN GRIFFITH experienced;

          4.
          4.      The mental
                  The mental anguish,
                             anguish, including
                                      including emotional
                                                emotional pain,
                                                          pain, torment
                                                                torment and suffering that
                                                                        and suffering that the

Plaintiff has experienced from the death of
Plaintiff                                of JOHN GRIFFITH;

          5.
          5.      The pecuniary
                  The pecuniary loss
                                loss Plaintiffs
                                     Plaintiffs have
                                                have suffered
                                                     suffered and
                                                              and will
                                                                  will suffer,
                                                                       suffer, meaning
                                                                               meaning the
                                                                                       the loss
                                                                                           loss of

care, maintenance,
care, maintenance, support,
                   support, services,
                            services, advice,
                                      advice, attention,
                                              attention, counsel,
                                                         counsel, guidance,
                                                                  guidance, protection
                                                                            protection and
                                                                                       and

reasonable contribution of
reasonable contribution of pecuniary
                           pecuniary value
                                     value that would, in reasonable
                                           that would,     reasonable probability,
                                                                      probability, have
                                                                                   have been

received by the Plaintiffs from the Decedent, JOHN GRIFFITH;

          6.
          6.               of society and companionship representing the positive benefits flowing
                  The loss of

from the
from the love,
          love, comfort,
                 comfort, companionship
                          companionship and
                                        and society
                                            society that     Plaintiffs would
                                                    that the Plaintiffs would have,
                                                                              have, with
                                                                                    with

reasonable probability, experienced if JOHN GRIFFITH had lived;

          7.
          7.      The loss of inheritance and loss of
                                                   of addition to estate; and

          8.
          8.           direct and
                  As a direct and proximate
                                  proximate result of
                                                   of defendants'
                                                      defendants' negligence,
                                                                  negligence, as
                                                                              as described
                                                                                 described above,
                                                                                           above,

Plaintiff Jenny Frame
                Frame has suffered severe mental pain and suffering since the perception of the

occurrence made
occurrence made the basis of this
                the basis    this suit and of the injuries
                                                  injuries and harm and death
                                                                        death sustained by her

father.

          As aa result  of the
                 result of  the acts
                                 acts and/or
                                       and/or omissions
                                               omissions set
                                                          set out,
                                                               out, Pulido
                                                                     Pulido sustained
                                                                             sustained serious
                                                                                       serious injuries
                                                                                                injuries and
                                                                                                         and




                                                     -9-
                                                                                                               19
incurred medical expenses
incurred medical expenses for
                           for the
                               the necessary care of those
                                   necessary care    those injuries.
                                                            injuries. Diana
                                                                      Diana Pulido's
                                                                            Pulido's injuries
                                                                                      injuries

include,     are not limited to, a head
include, but are                   head injury,
                                        injury, fractured
                                                fractured tibia and fibula,
                                                                    fibula, a fractured
                                                                              fractured shoulder,
                                                                                        shoulder, a

fractured pelvis, a fractured
fractured pelvis,   fractured clavicle
                              clavicle and
                                       and multiple
                                           multiple lacerations
                                                    lacerations and
                                                                and contusions.
                                                                    contusions. She has required
                                                                                        required

multiple
multiple surgeries and extensive
         surgeries and extensive rehabilitation.
                                 rehabilitation. With
                                                 With reasonable
                                                       reasonable medical
                                                                  medical probability,
                                                                          probability, Pulido
                                                                                       Pulido

will continue to incur medical expenses for the necessary treatment of her injuries in the future.

In addition, Pulido has suffered loss of
                                      of earning capacity, physical pain, mental anguish, physical

impairment, and disfigurement
impairment, and disfigurement resulting
                               resultingfrom
                                         fromher
                                             her injuries
                                                  injuries and
                                                           and is
                                                               is expected
                                                                  expected to
                                                                           to suffer from
                                                                                     from her

injuries in the future.



                                        JURY DEMAND

        Plaintiffs hereby respectfully demand a trial by jury and have tendered the appropriate fee

to the Clerk of
             of the Court.

                                            PRAYER

        WHEREFORE, PREMISES CONSIDERED,
        WHEREFORE, PREMISES CONSIDERED, Plaintiff prays
                                                  prays that
                                                        that the Defendants be cited

to appear
   appear and answer
              answer herein, that after trial
                     herein, that       trial and hearing,
                                                  hearing, Plaintiff have
                                                                     have and
                                                                          and recover all of the
                                                                              recover all

damages prayed for above, and for any and further relief to which Plaintiff
                                                                  Plaintiff may be justly entitled.

                                            Respectfully submitted,

                                            HOWRY BREEN
                                                  BREEN &
                                                        & HERMAN, L.L.P.
                                                                  L.L.P.

                                               /s/ Sean E. Breen

                                            Sean E. Breen
                                            sbreen(i],howrybreen.com
                                            sbreen@howrybrecti.com
                                            State Bar No. 00783715
                                            1900 Pearl Street
                                            Austin, Texas 78705-5408
                                            (512) 474-7300
                                            (512) 474-8557 FAX



                                               -10-
                                                                                                      20
                                            ATTORNEYS FOR PLAINTIFFS JENNY
                                            FRAME, INDIVIDUALLY AND AS PERSONAL
                                            REPRESENTATIVE OF THE ESTATE OF
                                            JOHN WILLIAM GRIFFITH,
                                            GREG GRIFFITH, and CHERYL BURRIS

                                            SLACK &
                                                  & DAVIS, L.L.P.

                                                      /s/ Mike Davis

                                            Mike Davis
                                            mdavis(ti;slackdavis.com
                                            mdavis(ii;slackdavis.corn
                                            State Bar No. 05549500
                                            Slack &
                                                  & Davis, LLP
                                            2705 Bee Cave Road, Suite 220
                                            Austin, Texas 78746
                                            (512) 795-8686

                                            ATTORNEYS FOR PLAINTIFF DIANA
                                            PULIDO


                                CERTIFICATE OF SERVICE

                                             true and
        I certify that May 7, 2014, I sent a true and complete
                                                      complete copy
                                                               copy of
                                                                     of this pleading via electronic
filing, certified U.S.
filing, certified  U.S. mail,
                        mail, regular
                              regular U.S.
                                      U.S. mail
                                            mail and/or
                                                  and/or by facsimile
                                                            facsimile to the
                                                                          the following
                                                                               following persons
                                                                                         persons in
accordance with the Texas Rules of of Civil Procedure:

 Virginia I. Hermosa
 Hermosa Law Firm
 503 West 17th St, Suite 200
 Austin, Texas 78701
                                                             /s/ Sean E. Breen

                                                       Sean Breen




                                               -11-
                                                                                                       21
TAB 2
City of Austin

                          _
    /.,,,---: 4-" ,-:.r „.„,.1:,.,„

  .,
  N                              /.I.




   A
   A Report
      Report to
              to the
                 the                    Parks
                                        Parks and
                                              and Recreation
Austin City Council
Austin City

                 Mayor
                                        Department   (PARD) Patron
                                        Department (PARD)
         Lee Leffingwell
                                        Safety Audit
       Mayor Pro
             ProTem
                 Tern
          Sheryl Cole
                                        February 2014
    Council
    Council Members
             Members
            Chris Riley
       Mike
       Mike Martinez
         Kathie Tovo
      Laura
      Laura Morrison
         Bill
         BillSpelman
              Spelman




                                                                     EXHIBIT.                    i.
                                                                        . .„ „„..,.
  Office of
  Office of the
            the                                                f - B·-                :„.



  City Auditor
  City

          City Auditor
          City Auditor
     Kenneth J. Mory
                 Mary
CPA, CIA,
     CIA, CISA,
          CISA, CRMA



  Deputy City Auditor
  Deputy City
     Corrie
     Come E. E. Stokes
      CIA,         CFE
      CIA, CGAP, CFE




                                                                                            54
                                                                                                  AUDIT NUMBER:
                                                                                                  AUDIT NUMBER:AU13028
                                                                                                                AU13028


TABLE OF CONTENT

BACKGROUND .............................................................................................................................1

OBJECTIVE, SCOPE,
OBJECTIVE, SCOPE, AND
                  AND METHODOLOGY .....................................................................................1

      RESULT$ ............................................................................................................................2
AUDIT RESULTS

Appendix
Appendix A:
Appendix A: Management
            Management Response .....................................................................................................
                                           .. . ...     ...... . .. .... ... ....... .... . .. ..... . ..                     .      8

Exhibits
Exhibit 1:
Exhibit  1: Implementation
            Implementation ofofHazard
                                Hazard Identification
                                        Identification Policies
                                                        Policies ................................................................. 3
Exhibit
Exhibit 2:
         2: Implementation
            Implementation ofof Patron
                                PatronSafety
                                       SafetyHazard
                                               Hazard Correction          Policies .............................................. .4
                                                        Correction Policies                                                            4
Exhibit3:3: Concrete Safety Hazard
Exhibit                      Hazard at Dougherty
                                       Dougherty Arts
                                                    ArtsCenter
                                                           Center.................................................................
                                                                               .. . . .... ....                              . ...... 5
Exhibit 4:
Exhibit  4: Play
            Play Area
                 Area at
                      at the             Arts Center ................................................................................. S
                             Dougherty Arts
                         the Dougherty                                                                                                 5
Exhibit 5:
Exhibit  5: Minor Hazard at Dougherty
                             Dougherty Arts
                                         Arts Center ................................................................................ 6



                    STANDARDS COMPLIANCE
GOVERNMENT AUDITING STANDARDS COMPliANCE

We conducted this performance
                     performanceaudit
                                    auditin
                                          in accordance
                                              accordancewith
                                                           withGenerally
                                                                 Generally Accepted
                                                                             Accepted Government
                                                                                        Government Auditing
                                                                                                       Auditing
Standards. Those
Standards. Those standards              that we
                   standards require that    we plan
                                                 plan and perform the the audit
                                                                          audit to
                                                                                 to obtain
                                                                                    obtain sufficient,
                                                                                           sufficient,
appropriate evidence
appropriate  evidence to
                       to provide
                           provide aareasonable
                                      reasonablebasis
                                                   basis for
                                                          for our
                                                              our findings
                                                                   findings and conclusions
                                                                                 conclusions based
                                                                                               based on our
      objectives. We
audit objectives. We believe
                      believe that the
                                    the evidence
                                         evidence obtained
                                                    obtained provides
                                                               provides aa reasonable
                                                                            reasonable basis
                                                                                         basis for
                                                                                               for our
                                                                                                   our findings
                                                                                                       findings
    conclusions based on our audit objectives.
and conclusions                        objectives.


AUDIT TEAM

Niki
Niki Raggi,
     Raggi, CGAP,
            CGAP, CRMA,
                  CRMA,CICA,
                         CICA,Assistant
                                Assistant City
                                          City Auditor
                                               Auditor
Christopher Shrout,
Christopher  Shrout,CGAP,
                     CGAP, Auditor-in-Charge
Felipe Garcia-Colon, CGAP,
                     CGAP, Auditor
                           Auditor




                                                 Office of
                                                Office   of the
                                                            the City Auditor
                                                                     Auditor
                                                                   Hal!
                                                      Austin City Hall
                                                  phone: (512)974-2805
                                          ernail:
                                          email: oca_auditor@austintexas.gov
                                       website: http:/ /www.austintexas.gov/auditor
                                                http://www.austintexas.gov/auditor
               Copies of
               Copies of our
                         our audit         are available
                             audit reports are available at lIttp          //www rav,tintexas,govia dctor/icports




                                                                on
                                                                   01
                                                                   tat)
                                                      Printed on recycled
                                                                 recycled paper
                                                                          paper
                                            Alternate formats available
                                                              available upon request




                                                                                                                                              55
      February 2014




                                      Mayor and Council,
                                                Council,


                                      II am  pleased to
                                         am pleased   to present
                                                         present this audit
                                                                      audit on
                                                                            on patron
                                                                               patron safety
                                                                                      safety at
                                                                                             at Parks
                                                                                                Parks and Recreation
                                                                                                          Recreation
                                      facilities.


       Audit Report
       Audit                          BACKGROUND
         Highlights                   This audit
                                      This audit was placed on   on the
                                                                     theFiscal
                                                                          Fiscal Year
                                                                                 Year 2014 Strategic Audit Plan as result    of aa risk
                                                                                                                      result of    risk
                                      assessment performed
                                      assessment     performedby   bythe
                                                                       theOffice
                                                                           Officeofofthe
                                                                                      theCity
                                                                                           CityAuditor
                                                                                               Auditor that
                                                                                                        thatidentified
                                                                                                             identifiedPARD
                                                                                                                        PARD as
 Why We Did This
            This Audit                    City department
                                      the City department with the    the highest   risks related to managing the safety
                                                                           highest risks                             safety of
                                                                                                                            of
 This audit
 This  audit was
             was conducted
                  conducted           patrons at   its facilities,
                                               at its  facilities.
 as part
    part of
         of the
            the Office
                 Office of
 the City
 the City Auditor's
          Auditor's(OCA)
                     (OCA)            PARD
                                      PARDisisresponsible
                                                  responsiblefor       total of 330 locations. PARD
                                                                 foraatotal                    PARD facilities
                                                                                                     facilities include,
                                                                                                                 include, but
                                                                                                                          but are
 FY2014
 FY  2014Strategic
           Strategic Audit            not limited
                                           limited to,to, parks,
                                                          parks, recreation
                                                                  recreation centers, senior centers, cultural centers, pools,
                                                                                                                           pools,
 Plan.
 Plan,                                                      cemeteries.PARD
                                      splash pads, and cemeteries.         PARD staff
                                                                                  staff estimates
                                                                                        estimatesover
                                                                                                  overfive
                                                                                                       five million
                                                                                                            million patrons
                                                                                                                      patrons visit
                                                                                                                              visit
                                      their facilities
                                      their  facilities annually.
 What We Recommend
                                      OBJECTIVE
                                      OBJECTIVE AND
                                                AND SCOPE
                                                    SCOPE
 The Director should
 allocate the necessary               The objective
                                          objective of the  audit was
                                                        the audit      to determine
                                                                  was to   determineififPARD
                                                                                         PARD has
                                                                                                has an
                                                                                                    an effective
                                                                                                       effective system to
 skills and
 skills and resources
             resources to             identify, address,
                                      identify, address, and mitigate risks
                                                                        risks to patron safety,
                                                                                        safety.
 appropriately implement
 the PARD
      PARD patron
              patron safety
                     safety           The audit scope
                                                scope included  PARD patron
                                                       includedPARD         safety activities
                                                                     patron safety activities for
                                                                                              for Fiscal
                                                                                                  Fiscal Years
                                                                                                         Years 2012 and
 program and monitor its              2013.
 effectiveness.
                                      WHAT WE fOUND
                                              FOUND

                                      While PARD
                                      While  PARDmanagement
                                                      managementhashasdeveloped
                                                                       developed and and approved
                                                                                          approved policies
                                                                                                      policies aimed at
                                      identifying and
                                      identifying and managing
                                                       managing hazards related      to patron
                                                                            related to  patronsafety,
                                                                                                 safety,PARD
                                                                                                          PARD executive
                                      management has not not allocated
                                                             allocated the
                                                                        the appropriate
                                                                             appropriate skills,
                                                                                            skills, structures,
                                                                                                    structures, and resources to
                                               the implementation
                                      support the   implementationof ofits
                                                                        its patron
                                                                            patron safety
                                                                                    safety policies.
                                                                                            policies.

                                      Key
                                      Keyelements
                                           elements ofof the  PARD patron
                                                          the PARD   patronsafety
                                                                             safety program
                                                                                    program include
                                                                                             includerequirements
                                                                                                      requirements for hazard
                                      identification,
                                      identification, data
                                                      data analysis,
                                                             analysis, and hazard
                                                                           hazard correction   and monitoring.
                                                                                   correction and               However,
                                                                                                   monitoring. However,
                                      required annual safety audits
                                                                audits are
                                                                        are not
                                                                            notconsistently
                                                                                consistently conducted,
                                                                                             conducted, incidents
                                                                                                          incidents and
                                                                                                                    and injury
                                                                                                                         injury
                                      data is not thoroughly analyzed, and hazards
                                                                                hazards identified
                                                                                        identified are
                                                                                                   are not
                                                                                                        not monitored through
                                      correction.

                                      As aa result,
                                      As    result, PARD
                                                    PARDisisnot
                                                             noteffectively
                                                                 effectivelymanaging
                                                                             managinghazards
                                                                                        hazardsrelated
                                                                                                relatedto
                                                                                                        to patron
                                                                                                           patron safety and
                                             is limited
                                      there is  limited assurance
                                                        assurance that  hazards identified
                                                                   that hazards identified are corrected promptly.
                                                                                                          promptly.

                                      We appreciale   the cooperation
                                           appreciate the cooperationand
                                                                      andassistance
                                                                          assistancewe
                                                                                     wereceived
                                                                                        receivedfrom
                                                                                                  fromPARD
                                                                                                       PARD staff
                                                                                                            staff during
                                      this ;;tudit.
                                           audit. / '
                                                          i
                                                      I                                                                                   /
                                               1     If         lj                                                      ............../
                                               ' !            ' t__ . . ,.-\                                       -~
For
For more
    more information on this or any            :'
                                               ! / \~---
                                                                           \
                                                                               ............,.....,,__
                                                                                                              ,/.---
                                                                                                            .!"




                                      Kenne~h                                        A~~
       of our reports, email
                                           '
   oca_auditor@austintexas.gov
   oca_auditor@austintexas.goy                J. Mory,
                                      Kenneth J. Mory, City
                                                       City A dit\O\
                                                                                      \ )               '         ,•




                                                                                                                                              56
BACKGROUND

This audit was placed
This             placed on
                         on the
                             theFiscal
                                 Fiscal Year
                                        Year (FY)
                                             (FY) 2014
                                                   2014Strategic
                                                         Strategic Audit
                                                                   AuditPlanPlanasasresult
                                                                                      resultof
                                                                                            ofaa risk
                                                                                                  risk assessment
                                                                                                       assessment
performed
performed by    theOffice
            by the   Officeof
                            ofthe
                               theCity
                                    City Auditor
                                         Auditor (OCA)
                                                 (OCA) that                PARD asasthe
                                                         that identified PARD          theCity
                                                                                           Citydepartment
                                                                                                department with
the highest
    highest risks
             risks related
                   related to
                            to managing
                               managing the
                                          the safety
                                               safety of
                                                      of patrons
                                                         patronsatatits
                                                                      itsfacilities.
                                                                          facilities.

PARD
PARDisisresponsible
         responsiblefor
                      foraatotal
                            total of
                                  of 330
                                     330 locations.   PARD facilities
                                          locations. PARD     facilitiesinclude,
                                                                         include,but
                                                                                  butare
                                                                                      are not
                                                                                          not limited to, parks,
recreation centers,
           centers, senior
                     seniorcenters,
                            centers, cultural
                                      cultural centers,
                                                centers,pools,
                                                           pools,splash
                                                                  splash pads,
                                                                          pads, and
                                                                                and cemeteries.
                                                                                     cemeteries.PARD
                                                                                                   PARD staff
                                                                                                          staff
estimates overfive
estimates over five million
                     million patrons
                             patrons visit  their facilities
                                      visit their facilities annually.


OBJECTIVE, SCOPE, AND METHODOLOGY

The PARD
    PARD Patron
            Patron Safety
                   Safety Audit
                          Audit was
                                was conducted   as part
                                     conducted as  partof
                                                        ofthe
                                                           theOCA
                                                               OCA FY
                                                                   FY 2014
                                                                      2014 Strategic
                                                                           Strategic Audit Plan, as
presented  tothe
presented to  theCity
                  CityCouncil
                       Council Audit
                               Audit and
                                      and Finance
                                          Finance Committee.
                                                   Committee.


Objective

The objective of the audit
                      audit was
                            was to
                                 to determine
                                    determineififPARD
                                                  PARD has
                                                       has an
                                                           an effective
                                                              effective system
                                                                        system to
                                                                               to identify,
                                                                                  identify, address, and
         risks to
mitigate risks to patron safety.


Scope

The audit scope
            scope included  PARD patron
                   included PARD   patron safety activities for Fiscal
                                                                Fiscal Years
                                                                       Years2012
                                                                             2012and
                                                                                  and 2013.
                                                                                       2013. Patron
                                                                                               Patron safety
activities refer to measures
activities           measures taken
                               taken by
                                      by PARD
                                         PARD to
                                               toprotect
                                                  protect the  public at
                                                           the public  at department facilities.
                                                                          department facilities.


Methodology

To accomplish
To accomplish our
              our audit
                  audit objectives,
                        objectives, we
                                    we performed the following
                                       performed the  following steps:

■"    conductedaasurvey
      conducted       surveyof  of14
                                   14PARD
                                      PARD division
                                              divisionmanagers                  patron safety
                                                        managers regarding patron        safetyefforts
                                                                                                effortswithin
                                                                                                        withinPARD;
                                                                                                               PARD;
■•    assessed local
      assessed    local media
                        media coverage
                                 coverage related
                                             relatedtotopatron
                                                         patronsafety
                                                                 safetyatatPARD
                                                                             PARD facilities
                                                                                    facilities;
■
'"    conducted     interviewswith
      conducted interviews        withPARD
                                        PARD staff;
■
'"    reviewed safety industry practices;
•"'   analyzed department
      analyzed                    policies and
                  department policies       and procedures related to patron safety;
•     reviewed relevant
                   relevantclaims
                              claims and
                                      and lawsuits
                                           lawsuits against
                                                      againstthe
                                                              theCity
                                                                  Cityrelated
                                                                        relatedtotoPARD;
                                                                                     PARD;
■
•                 PARD incident
      analyzed PARD       incidentandand injuries
                                          injuriesdatabases;
                                                    databases;
•     reviewed safety
                   safety inspection
                           inspectionreports
                                        reportsforforPARD
                                                      PARD facilities;
■
'"            numerous PARD
      visited numerous       PARD facilities
                                     facilitiesincluding
                                                includingplaygrounds,
                                                            playgrounds,recreation
                                                                            recreationcenters,
                                                                                        centers,senior
                                                                                                 senior centers,
                                                                                                         centers, and
      golf facilities;
           facilities; and
•     analyzed laws applicable to patron patron safety
                                                 safety at
                                                         at municipal
                                                             municipal facilities.
                                                                        facilities.




Office of the City
Office        City Auditor                                 1                   PARD
                                                                               PARDPatron
                                                                                    Patron Safety
                                                                                           Safety Audit,
                                                                                                  Audit, February 2014



                                                                                                                         57
AUDIT RESULTS

Finding: PARD has not allocated the appropriate skills, structures, and resources
                                                                        resources to
                                                           Asaaresult,
support the implementation of its patron safety policies, As    result,PARD
                                                                        PARD is not
managing safety hazards effectively and there is limited assurance that hazards are
promptly identified and corrected.

According
According to to the
                 the various safety industry practices we reviewed, organizations should have aa system
in
in place
   place to
          to provide
             provide reasonable
                       reasonable assurance
                                   assurance that
                                              that key
                                                   key hazards
                                                       hazards are
                                                               are identified.
                                                                    identified. Further,
                                                                                Further, after
                                                                                         after detection,
significant  current and potential hazards should be prevented,
significant current                                     prevented, corrected,
                                                                    corrected, or
                                                                                or controlled
                                                                                   controlled in
                                                                                               in aa timely
                                                                                                     timely
manner.

PARD
PARDhas  hasdeveloped
             developedand and approved
                                 approved policies
                                             policiesaimed
                                                      aimed atat identifying
                                                                 identifyingand
                                                                              and managing
                                                                                   managinghazards
                                                                                              hazards related
                                                                                                       related to
patron   safety that
patron safety    thatare
                      areininline
                               linewith
                                    withthe
                                          theCommission
                                                Commissionfor forAccreditation
                                                                  Accreditation ofof Park
                                                                                     Park and Recreation
                                                                                              Recreation Agencies
                                                                                                           Agencies
(CAPRA) requirements.
(CAPRA)                      Specifically, per
            requirements. Specifically,     per policies
                                                 policiesPARE)
                                                           PARD should:
                                                                   should:
     inspect,audit,
1. inspect,    audit,and
                      andinvestigate
                            investigateall all department
                                               departmentproperty
                                                             propertyto toidentify
                                                                           identify hazards;
                                                                                    hazards;
2. gather
2,   gatherand
             andanalyze
                   analyzerelevant
                             relevantdata
                                        datatotoidentify
                                                  identifytrends
                                                           trendsandandmake
                                                                         makerecommendations
                                                                               recommendations forfor corrective
                                                                                                       corrective
     actions; and
3. ensure
3.   ensure   that
           that    corrective
                 corrective       actions
                              actions   areare  addressed
                                             addressed      and
                                                          and     monitor
                                                               monitor     PARDcompliance
                                                                         PARD     compliance with
                                                                                              with its safety
     program.

However, based on our analysis
However,                   analysis and
                                     and observations,
                                         observations, executive
                                                       executive management
                                                                  management hashas not
                                                                                     not allocated
                                                                                           allocated the
appropriate skills,
appropriate          structures, and
             skills, structures,  and resources
                                      resources to
                                                to support the implementation
                                                                implementation of its
                                                                                    its patron safety
policies. As a result, PARD
policies. As            PARD isisnot
                                  notmanaging
                                      managingsafety
                                                safetyhazards
                                                       hazards effectively
                                                               effectivelyand
                                                                           andthere
                                                                               there is
                                                                                      is limited
                                                                                         limited assurance
                                                                                                  assurance
that hazards identified
that hazards  identified are
                          are corrected promptly.
                                          promptly.

PARD
PARDpolicies
         policiesassign
                  assignthe
                         theresponsibility
                             responsibilityofofadministering
                                                administeringitsitspatron
                                                                    patronand
                                                                            andoccupational
                                                                                 occupational safety
                                                                                                 safety programs
to aa Safety Office
             Office who
                     who should
                          should report
                                  report directly
                                         directly to
                                                   to the
                                                       the department    executive team.
                                                           department executive       team. InInpractice,
                                                                                                 practice,PARD
                                                                                                            PARD
does not
       not have
           have aa Safety
                   Safety Office
                          Office dedicated
                                  dedicated toto administering
                                                 administering these
                                                                  these programs.
                                                                        programs. In   In the absence
                                                                                              absence ofof aa Safety
                                                                                                              Safety
Office, patron
Office,  patron safety responsibilities
                        responsibilities have
                                         have been    assigned to
                                                been assigned    to the department
                                                                        department Occupational
                                                                                         Occupational Health
                                                                                                        Health and
                               primary focus is
Safety Coordinator, whose primary              is worker
                                                  worker safety
                                                           safety and who organizationally
                                                                             organizationally reports
                                                                                                 reports to aa
Human Resource Supervisor within the Management
                                            ManagementServices
                                                             Servicesdivision.
                                                                       division. In
                                                                                  In addition,
                                                                                      addition,PARD
                                                                                                 PARD has aa
Certified Playground
Certified  Playground Coordinator
                         Coordinator who   reports to the
                                      who reports        the Maintenance
                                                             MaintenanceDivision
                                                                            Division Manager.

The
The three
     three sections below
                    below outline the disconnect between
                                                 between policies
                                                          policies and implementation
                                                                       implementation in
                                                                                      in each of the
three hazard
three  hazard management
              management areas
                           areas identified
                                  identified above.

     HazardIdentification
1. Hazard     Identification
In
In order to timely
   order to  timely identify
                     identify safety
                               safety hazards,
                                       hazards, PARD
                                                PARD policies
                                                       policiesrequire
                                                                require periodic
                                                                         periodicsite
                                                                                  site inspections
                                                                                        inspections and annual
safety audits
safety audits totobe
                   beconducted
                      conductedononeacheachPARD
                                             PARD facility.
                                                   facility. Additionally,
                                                             Additionally, the
                                                                           the City's
                                                                               City's Child
                                                                                      Child Care
                                                                                             Care ordinance
                                                                                                  ordinance
          that each
requires that   each facility
                      facility that                                 undergo an annual safety inspection.
                               that hosts recreational programs undergo
As
As shown
    shown inin Exhibit
               Exhibit1,1,safety
                            safetyinspections
                                    inspectionsare
                                                arenot
                                                    notconsistently
                                                         consistentlyconducted,
                                                                      conducted, documented,
                                                                                   documented, and
monitored
monitored'as as required.




Office of the
Office        City Auditor
          the City                                       2                   PARD
                                                                             PARDPatron
                                                                                  PatronSafety
                                                                                        Safety Audit,
                                                                                               Audit, February
                                                                                                      February 2014



                                                                                                                       58
                                                       EXHIBIT
                                                       EXHIBIT 1
                               Implementation of Hazard Identification Policies



             Officer, in
 The Safety Officer,   in coordination
                          coordination with           No                   A total  of 22 of
                                                                              total of        118staffed
                                                                                          of 118   staffedPARDPARD
 site supervisors, should conduct aa                                                      FY 2013
                                                                           facilities in FY    2013 received aa
 comprehensive annual safety audit on                                      comprehensive safety audit     audit by the
 each staffed
 each          PARD facility
       staffedPARD                                                         Occupational Health and Safety    Safety
                                                                           Coordinator
 Playgrounds
 Playgrounds areare to
                    to undergo an annual              Partially            52 of 99 PARD-identified
                                                                                      PARD-identified playgrounds
 playground audit by a certified                                           received an auditaudit by
                                                                                                  by aa certified
                                                                                                         certified
         und safety inspector
 playground                                                                playgroundund inspector
                                                                                           ins        ininFYFY 2013
 Division
 DivisionManagers
          Managers are are responsible for            Partially            Based
                                                                           Based on on our review of
 ensuring that each location
                       location of operation                               documentation for the    the recreation
                                                                                                           recreation
 receives random in-house safety and                                       centers in the south and  and north
 health self-inspections with results                                      districts,
                                                                           districts, recreation centers receivereceive
 forwarded toto the
                 theSafety
                     Safety Office
                             Office for review                             periodic
                                                                           periodic maintenance          inspections or
                                                                                      maintenance inspections
                                                                           safety self-inspections; however,
                                                                                                           however, the
                                                                                                                      the
                                                                           results of these
                                                                           results              inspections are not
                                                                                        these inspections
                                                                           provided to the the Occupational
                                                                                                Occupational Health
                                                                                                                  Health
                                                                           and Safety Coordinator and there is         is
                                                                           not a system to   to ensure
                                                                                                ensuredivision
                                                                                                           division
                                                                           managers receive and review   review
                                                                                    ion results
                                                                           inspection
SOURCE: PARD
SOURCE:  PARDpolicies and
               policies   OCA
                        and   observations
                            OCA            during
                                observations      the
                                             during   course
                                                    the courseofof
                                                                 the
                                                                   theaudit,
                                                                       audit,September-December
                                                                              September-December 2013


     Datacollection
2. Data    collectionand
                       and analysis
                             analysis
According to
According       PARD policy,
             to PARD    policy,safety
                                 safetystaff
                                          staffshould
                                                shouldcollect
                                                          collectand
                                                                   and analyze
                                                                         analyzedata,
                                                                                  data, including
                                                                                        including incidents and
injuries, on an
injuries, on  an ongoing
                  ongoing basis.
                           basis. Such
                                    Such analysis
                                            analysis should
                                                        should lead
                                                                 leadtoto recommendations
                                                                           recommendations to identify trends and
prevent   common types
prevent common             ofaccidents.
                     types of  accidents. All All incidents
                                                   incidentsandandinjuries
                                                                     injuriesshall
                                                                               shall be
                                                                                     be entered
                                                                                         enteredinto
                                                                                                   intothe
                                                                                                         thePARD
                                                                                                              PARD injury
                                                                                                                    injury
                databaseand
and incident database     and forwarded
                                forwardedto    tothe
                                                   theSafety
                                                        SafetyOffice.
                                                                 Office. However,
                                                                           However/we  wefound
                                                                                           foundthat
                                                                                                   thatPARD
                                                                                                         PARD does not
have aa central database
                 databasefor forall
                                 all incidents
                                      incidentsor orinjuries
                                                      injuries that
                                                                thatoccur
                                                                      occuratatPARD
                                                                                 PARD facilities.
                                                                                        facilities. Rather,
                                                                                                    Rather, there
                                                                                                              there are
three separate
three  separate systems
                  systems (general
                            (general database,
                                        database, aquatic
                                                      aquatic database,
                                                                database, and and Park
                                                                                   Park Ranger
                                                                                        Ranger database) and these
datasets are
datasets   are not
                notreviewed
                    reviewed oror analyzed
                                   analyzed in  in the
                                                    the aggregate.
                                                         aggregate. In  In addition,
                                                                            addition, summary
                                                                                      summary annual
                                                                                                  annual inspection
                                                                                                            inspection
information and patron safety summary
information                           summary data from  from the general database is not reportedreported to to executive
                                                                                                                 executive
management.

Additionally,  according to
Additionally, according     to OCA
                               OCAanalysis,
                                     analysis,thetheinformation
                                                     informationininthe  thedatabases
                                                                             databases is
                                                                                        is incomplete,
                                                                                            incomplete, contains
information that is is not relevant,
                           relevant/ and the
                                           the data
                                                data isis not
                                                          not categorized
                                                              categorized in  in a manner
                                                                                   manner that
                                                                                             thatprovides
                                                                                                  provides useful
                                                                                                              useful
trend analysis.
trend  analysis. For
                  For example,    thegeneral
                       example, the   generalPARDPARD database
                                                         database contains over over 70 categories
                                                                                         categories ofof injuries,
                                                                                                          injuries,
including: cut, fall,
                fall, minor,
                       minor, scratches,
                               scratches, minor
                                           minor scrapes,
                                                   scrapes, hit,
                                                              hit, hit
                                                                   hit in
                                                                        inthe
                                                                           the mouth,
                                                                                mouth, bee sting, mashed
                                                                                                   mashed fingers,
                                                                                                              fingers,
major, and red mark on forehead.
                            forehead. Also,
                                         Also, there
                                                there isis confusion
                                                           confusion over
                                                                        over what
                                                                              what constitutes
                                                                                    constitutes an incident and
      constitutesan
what constitutes    aninjury.
                        injury. According
                                 Accordingto toPARD
                                                PARD policy,
                                                         policy,injuries
                                                                  injuriesareareminor
                                                                                 minoraccidents
                                                                                       accidents that
                                                                                                   that require at
most on-site first aid, while
                          while incidents
                                 incidents are
                                            are major accidents that require         EMS assistance.
                                                                            require EMS                  However,
                                                                                           assistance. However,
according to OCA
              OCA analysis,
                      analysis,70%
                                 70%ofofthe
                                          thereported
                                              reported incidents
                                                          incidents are
                                                                      are categorized
                                                                           categorized as
                                                                                        as general
                                                                                             general conduct and
          children's behavioral
relate to children's   behavioral issues.




Office of the City
              City Auditor                                  3                    PARD
                                                                                 PARDPatron
                                                                                      Patron Safety
                                                                                             Safety Audit,
                                                                                                    Audit, February 2014



                                                                                                                             59
3. Hazard     correction
     Hazardcorrection
As
As indicated
    indicated above,
               above, after
                        after detection, significant
                                          significant current
                                                        current and
                                                                and potential
                                                                     potential hazards shouldshould be
                                                                                                     be prevented,
corrected, or
corrected,   orcontrolled
                controlledinin aatimely
                                  timelymanner.
                                         manner.Per  PerPARD
                                                          PARD policies,
                                                                policies, when aa hazard         identified, itit is
                                                                                    hazard isis identified,       is
either corrected
either  corrected byby eliminating
                       eliminating the
                                     the cause
                                         cause ofof the
                                                    the hazard
                                                         hazard at
                                                                atthe
                                                                   thesource
                                                                        sourceor orisis effectively
                                                                                         effectively controlled,
                                                                                                      controlled,
          controlling or
such as controlling   or limiting
                          limiting access to aa specific area. However,
                                                                However, as  as shown
                                                                                shownin   in Exhibit
                                                                                              Exhibit 2, currently
there  is
there is  no mechanism      to ensure  that once   identified,
                               ensure that once identified,    hazards   are  actually   corrected.

                                                     EXHIBIT2
                                                     EXHIBIT 2
                             Implementation of Patron Safety Hazard Correction Policies
                         tiem                                     in

  The Safety Officer
              Officer should
                      should conduct
                              conduct                  No                   We
                                                                            We found
                                                                                 found no
                                                                                       no evidence
                                                                                           evidencethat
                                                                                                    thatroutine
                                                                                                         outine
  follow-up  inspections to
  follow-up inspections   to ensure
                             ensure                                         follow-up is
                                                                            follow-up is conducted
                                                                                         conducted
  corrective action is taken
  The Safety Office
             Office isis responsible
                          responsible for              No                    Documentation
                                                                             Documentation needed to evaluate
  monitoring
  monitoring the
              the implementation of the   the                                compliance with the safety program
                                                                                                           program
  safety program to ensure compliance
                               co                                            is not
                                                                             is not maintained in
                                                                                               in aa central location
                                                                                                             location
SOURCE:
SOURCE:PARD
        PARDpolicies
             policiesand
                      andOCA
                          OCAobservations during
                               observations      the
                                            during thecourse
                                                       courseofofthis
                                                                   thisaudit,
                                                                        audit,September-December
                                                                               September-December 2013


Over the course of  of our
                        our audit,
                              audit, wewe found
                                           found various
                                                  various instances
                                                             instances of  of delays
                                                                              delays in addressing identified safety
hazards.   For example:
hazards. For
■
• The Annual
          Annual Playground
                    Playground Conditions
                                    Conditions Overview
                                                  Overview Report
                                                               Report fromfrom November
                                                                                November 2012   2012 identified eight
    playground locations with    with non-compliant safety hazards that, according    according to to priority
                                                                                                      priority ratings
                                                                                                                ratings
   established by      the International
                    by the   International Playground
                                               Playground Safety Institute, are "non-compliant safety concerns
   that   may result
   that may     result inin permanent
                            permanentdisability,
                                            disability, loss
                                                         loss of life
                                                                 life oror body
                                                                           body part,
                                                                                  part, and
                                                                                         and should
                                                                                               should be corrected
   immediately." As     As of December 2013, only    only four
                                                            four of
                                                                  of the
                                                                       the eight
                                                                            eight playscapes
                                                                                    playscapes have
                                                                                                  have had the hazards
   mitigated. Although
                   Although the the implementation
                                      implementationof     ofaanew
                                                                newplayscape
                                                                        playscape is is assigned
                                                                                        assigned toto the
                                                                                                      theCapital
                                                                                                           Capital
   Improvement Planning
                      Planning Division,
                                   Division,there      appears to
                                                thereappears      to be
                                                                      be disagreement        between this
                                                                          disagreement between          this division
                                                                                                             division and
                                                                                                                       and the
   Maintenance        Division over
   Maintenance Division          over what     PARD division
                                        what PARD      divisionisisresponsible
                                                                      responsible for for mitigating
                                                                                          mitigating the
                                                                                                       the existing hazards.
• AA tree              injured aapark
       tree fell and injured               patronon
                                    park patron    onthe
                                                       theTown
                                                             TownLakelakeTrail
                                                                            Trail in
                                                                                   in September
                                                                                      September2013;2013;PARD
                                                                                                            PARD had
   identified the
   identified    the tree forfor removal a month prior.
• The
a  The Occupational
          Occupational Health
                            Health and and Safety
                                            Safety Coordinator
                                                    Coordinatorasserted
                                                                     asserted that              identified safety hazards
                                                                                that he has identified
   at multiple
   at  multiple PARD
                   PARD locations,
                            locations, butbut due
                                              due to disagreement
                                                      disagreementwith    withPARD
                                                                                PARD division
                                                                                         division managers
                                                                                                    managers over the
   severity of thethe hazard, action was not taken to mitigate the hazard.
" One person was killed,
▪                         killed, and
                                   and another    seriously injured, when a car jumped the
                                         another seriously                                          the curb
                                                                                                         curb on
                                                                                                               on the
                                                                                                                   the Town
                                                                                                                       Town
   lake
   LakeTrail
           TrailininMay
                     May2012.2012.AAtemporary
                                        temporaryguardrail
                                                     guardrailwas wasinstalled
                                                                         installedat atthe
                                                                                        the location
                                                                                             location and
                                                                                                       and remains today.
   It
   It is
      is unclear
          unclear when
                    when a decision
                               decision will
                                           willbe
                                                bemade
                                                   maderegarding
                                                            regardingsafety
                                                                          safetyat atthe
                                                                                      the location.   In 1999, the
                                                                                           location. In
   Governor was  was injured
                      injured at  at the
                                     the same location.




Office of the City
              City Auditor                                    4                    PARD
                                                                                   PARDPatron
                                                                                        Patron Safety
                                                                                               Safety Audit,
                                                                                                      Audit, February 2014



                                                                                                                                 60
11
       A .safety
      .A  safety issue at the
                 issue at the Dougherty Arts Center (DAC)  playarea
                                                    (DAC) play         wasidentified
                                                                 areawas               by the
                                                                            identified by      site supervisor,
                                                                                           the site supervisor,
       Occupational Health and Safety Coordinator, andand playground inspector. The       hazard was
                                                                                     The hazard
       partially addressed
                 addressed in the summer ofof 2013, only after a child injured his        and required
                                                                               his head and
       stitches.

                                                  EXHIBIT3
                                                  EXHIBIT 3
                                  Concrete Safety Hazard at the
                                                            the DAC        RPm.,.v,.,~!.-·-·
                                                                DAC (Since Removed




                         photo, June
                    PARDphoto,
            SOURCE: PARD
            SOURCE:             June 2013

•11   The  site supervisor and
      The site                    the Occupational
                             and the                 Health and
                                      Occupational Health         SafetyCoordinator
                                                            and Safety                           that the
                                                                                      indicated that
                                                                        Coordinator indicated         the play
      area
      area at the DAC   in its
                   DAC in   its current                                     possible hazard
                                                                 present aa possible
                                current condition continues to present                      to children
                                                                                     hazard to children
      (shown below). TheThe Occupational
                               Occupational Health   and Safety Coordinator has
                                             Health and                            proposed alternative
                                                                               has proposed  alternative
      options to
               to the
                  the current
                      currentplayplayarea, but an
                                     area, but     alternative plan
                                               an alternative       has not
                                                               plan has            agreed upon.
                                                                             been agreed
                                                                        not been

                                                   EXHIBIT 4
                                                           of January 2014
                                                        as of
                                          DAC Play Area as




                             photo, January
                         OCAphoto,
                 SOURCE: OCA
                 SOURCE;            January 2014



Office of the City Auditor
                   Auditor                              S5                 PARD        Safety Audit,
                                                                                Patron Safety
                                                                           PARD Patron               February 2014
                                                                                              Audit, February



                                                                                                                     61
•    Site visits
          visits conducted
                 conducted byby our
                                our staff
                                    staff in
                                           in conjunction
                                              conjunction with
                                                          with PARD
                                                               PARD staff
                                                                      staffindicate
                                                                            indicate there
                                                                                      there are various minor
     outstandingsafety
     outstanding    safetyhazards
                           hazardsatatthe
                                        the DAC,Hancock
                                          DAC,    Hancock Recreation
                                                          RecreationCenter,
                                                                      Center,and
                                                                               andJimmy
                                                                                    JimmyClay
                                                                                            Clay Golf
                                                                                                 Golf Barn,
     including slippery
     including   slippery conditions
                          conditions on steps   and stairways
                                          steps and stairways and   anADA
                                                               and an ADA ramp with a rotten
                                                                                          rotten railing,
                                                                                                  railing,
     shown below.

                                                  Exhibit 5
                                    Minor Hazard at Dougherty Arts Center

                                                                    'k




     SOURCE: OCA
     SOURCE: OCAphoto,
                 photo,January
                        January 2014


Executive
Executive management  support is
           management support  is critical
                                  critical to the
                                              the successful implementation
                                                              implementation of    ofany
                                                                                     any policy.
                                                                                           policy. While
                                                                                                   While
PARD
PARDexecutive
       executivemanagement
                 management commitment
                            commitment is dearlyclearly spelled
                                                        spelled out
                                                                out in
                                                                    in its safety policies,
                                                                                    policies, as
                                                                                               as mentioned
                                                                                                  mentioned
above, this commitment has not been supported
                                       supported by by the appropriate
                                                           appropriateskills,
                                                                          skills, resources,
                                                                                  resources, and
                                                                                               and structures.
                                                                                                   structures.

Without a structure in   in place to ensure
                                     ensure safety
                                             safety inspections
                                                     inspections occur,
                                                                   occur, without relevant safety data being
collected and analyzed, and without a mechanism to ensure identified hazards are addressed timely,
there  is limited
there is  limited assurance
                   assurance that
                                thathazards
                                     hazardstotopatron
                                                 patronsafety
                                                         safetyatatPARD
                                                                    PARD facilities
                                                                          facilities are
                                                                                     are promptly
                                                                                         promptly identified
and corrected. As  As aaresult,
                         result, the
                                  theCity
                                     City may
                                          may subject its patrons to preventable
                                                                       preventable harmharm and
                                                                                             and itself
                                                                                                  itself to legal
                                                                                                            legal
    financial liability.
and financial   liability.




Office
Office of the City Auditor                              6                  PARD
                                                                           PARDPatron
                                                                                Patron Safety
                                                                                       Safety Audit,
                                                                                              Audit,February
                                                                                                     February 2014



                                                                                                                     62
RECOEViMENDATION

The recommendations listed
                        listed below
                               below are aa result of our audit effort and subject to the limitation
                                                                                               limitation of
our scope of work.
              work. We
                     We believe
                         believethat
                                  that these
                                        these recommendations
                                              recommendations provide
                                                                    provide reasonable
                                                                            reasonable approaches
                                                                                           approaches to help
resolve the issues identified. We
resolve                        We also
                                    also believe
                                          believethat
                                                   that operational
                                                        operational management
                                                                     management is  is in
                                                                                       in aa unique position to
best understand
     understandtheir
                 theiroperations
                       operationsandandmaymaybebeable
                                                   ableto
                                                        toidentify
                                                            identifymore
                                                                     moreefficient
                                                                          efficient and
                                                                                     and effective
approaches   and we
approaches and   we encourage
                     encourage them
                                 them to todo
                                            do so
                                                so when
                                                   when providing
                                                         providing their response to our
recommendations.
recommendations. As As such, we strongly recommend the     the following:
                                                               following:

In order
In order to
          to ensure that PARD
                          PARD has
                                hasaasystem
                                      systemininplace
                                                 placeto
                                                       to provide
                                                          provide reasonable
                                                                   reasonable assurance
                                                                              assurance that
                                                                                        that patron
safety risks
safety risks are identified and addressed timely, the
                                                   the Director
                                                        Director should allocate necessary
                                                                                 necessary skills
                                                                                           skills and
resources  to appropriately
resources to  appropriately implement
                             implementthethePARD
                                             PARD patron safety    program and monitor its
                                                            safety program
effectiveness.



MMJAGEMENT RESPONSE:
MANAGEMENT  RESPONSE:Concur.
                       Concur.Hefer               forfor managementresponse
                               Refertoto AppendixAA                 response and
                                                                             and action
plan,L




Office of the City Auditor
          the City                                     7                  PARD
                                                                          PARDPatron
                                                                               PatronSafety
                                                                                     SafetyAudit,
                                                                                            Audit,February
                                                                                                  February 2014



                                                                                                                  63
APPENDIX A


 MANAGEMENT RESPONSE -ACTiON
    AGE ENT RESPONSEACT       PlAN
                           N PLAN



                                      P;trk:,;
                                      Parittt: and l\ccn.:.ltl<H1
                                                    ;',i,:vrvalat                               Dcpartmc~1t
                                      2tK• ·"'·''-d' L.n!\:11 1.\ln\,
                                                              Blve \w'WJ,                                        \   : \Si!.}·j



           ,8
   Jaltirlr,



             her e.1
                   ,1 Plory, t'it.„ A LI dium
               of          Arertitor




   Subjrad: Parks, opt!, R;creation DepariPt




   ?kas.~ find attadictiMQ
                att;~eb~·d ih<' P:trk·. rmd
                                          d R..ecn:mi,,n
                                            Re o          D.:pm1nwnt',; {l-'A.Rfl) re,[:.<llhe
                                                       n 1114                       + rima,a totuthe  P:~:n~;t Satety Audit
                                                                                                 tt14 Pattato          holit
   :hw:d  .l;Hunu; 6.6. 201-L
   A;t:1.1.1.MilMy      2014.

   lI h.1w
      have r:·cicwcd tit rreport
           reviewed1iw                                         tindiny> a11d                  rc~u:mnt·rhiatint;s
                                                                                                        1111alas1 a'~<l'·•:mtr.•d
                                                                                                                        t.21titt.,‘,1         andI tu
                                                                                                                                                   at;n•e
                                                                                                                                                     tu   withh tits
                                                                                                                                                                lh<' rrcpott
                                                                                                                                                                          EL
   r~..·t>:nnuwnda1 i\~H.
   recomittetiditia.,6,


  "lu Ort-,,C
       (<l'<kr to  i.'tl>urt: that
                n kAiStirt          l'ARD
                               thatARO  has 11   a ~y.,tcrn
                                             hassytacto 3313inplat.at
                                                                  pb.:enttu   plU\·idt:
                                                                          !tato:He      J<';"f>tuthlc
                                                                                     leas/At:at:de     assllntl'!i:C, that
                                                                                                    a•;SiSrarti_;<:          patron .,,.,f,!l)
                                                                                                                      tbat patron'
  ri~.b  ;n'·' id::Htilied <11Hl iittch'2•::•k:d
                                   <Hidrc\~<:d timdy. tho                   s.houid ;dlocat~? IW<:c;:;sar}
                                                                Director,,temdri
                                                          the Director                                                   .rpri ~<.:sll\i!CC'
                                                                                                              jl<..db r,<tml
                                                                                                eeeer,sar7, .401i;              resourcros to
  ;~ppropti;!ld~
  rityroiu  rat,:      :m,1kmcm the PA    PARD     p.:Hh'l'l ,aalety
                                               RD Patron,    s:di.:ty pRt.t.tlaita
                                                                      pr.tgram :md 2.6dmonitor     its cffcctinmc·s:;:·
                                                                                         tnonitot. its effectiveht:s.—


         rt2.,1)011St:                            flodIng PA RD inttrdh ft i111phtitimif                                          foliforvi       ltscd seti     planid time i :

          1'13!1                  tatien                  aternrreTter
                                                        CCnrt('U rrcnct' arid Pri-loosatd                                  Slates of S tr                                    rnpase
                                                                                                                                                                           l'rnpos>ed
        ............~·--- . ...:...Sirale;ttic.s. S l ru1egipJ<:~t:Jtll             jlkm~ ntatinn i - ··~-----
                                                                         fur luiplciavatation                                                               !!l!Ekmcn~.ll.ti~!li!J!telin>r
                                                                                                                                                            ;Thlplementatien lirtelioet I
                                                    332;134! ~~ 42434133
                                                                 Ci\JU!JHd1~1.n~~<t
  L~ 413
  13,3
  th>.tl
  11
         HFh.~-:-·
             ,3
            Pc\H.D h:;,
     •;:,1 P't
  .;.,:~·:.;:ern
                          cz~ 3,~:\:n:
                     to 431,     ..-,1
                           ),r;,,a
               ii Ii-1 ~;,~a~.,Y
                        -
                                     <~
                                      ~n
                                      lit
                                                   I
                                                 Crc;lt•:
                                                 ir,;~pc·d~nn
                                                 11„,                 -.YA:11-1 to idc:~tlfy
                                                       pe:.:Pori -systcn1
                                             j pntcr~ti·tl        h;·l.tltH3~_t.:--~thi:~
                                                   411 3;3'21,33 113/  31813 ,           .333"1
                                                                                                               ! I'Linm,,l                                  s~p(cll1b..:r      t'tG. ~Dl4
                                                                                                                                                            't.tetittrattlebel 30.   2 ,D14



         ),
  1Jr•.)\·ilh:       rta:;on~b!e:
                       citttero,hls          i r~~l\:.;thonal ~~t~~~~t.t;.:-!-.
  ,.l:<,S!.J!i.Wl"t' l.t~.i:lt p'o;
  atotatt:It                      §fH~?(l'"!     .·"\).N.X.·~fli~>u.l
                                                                   d -lfll<~ni!t:cs
                                                                        31413-41 33 3 4333 .tod   ht·
                                                                                           .;Uld Cie
  ":lfdy 1141., !'t>bl <1.1\'                  st&~';'1(\n~l
                                                 tx             rark :;~-';tcm: 11133,r434,133,43
                                                                                          in~pt:·t:tl(lfl
  iJtcniii:~J and                                        ., 4 , 33, •,v1~k
                                                 p;•Jt(';vt)b
                                                 p8,..3(3                   iat::.iwU~· i.,.:Ort~i~tt:t·,t
                                                                    3413, 141.              4 , 413, 6 3341331
   ;~dJru.-.h(.!(i lillh•i\·,                        :.kn.:ut}t-t!'lllflti-._t~! t~f dt-pmt~l1!;lltd l
          t),n,::U~tl.f:
  ti'J,;: i)             ;:J'&I.-i"Ui-d
             la, tot tsitetii,.1                     333;               ~() 3'1331
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Office of tbe
Office        City Auditor
          the City                                                                                                          8
                                                                                                                            8                           PARD
                                                                                                                                                        PARDPatron  Safety Audit,
                                                                                                                                                             Patron Safety Audit, February 2014



                                                                                                                                                                                                  64
            APPENDIX A




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                                                              A.ssisatiiiat




            Office of the City
                          City Auditor
                               Auditor                                                                                9   PARD Patron
                                                                                                                          PARD Patron Safety
                                                                                                                                      Safety Audit,
                                                                                                                                             Audit, February 2014




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