Court held City immune from Plaintiff’s negligent implementation/premise defect claims due to discretion in ordinances

Lois Morgan v. City of Terrell, Texas 05-16-00554-CV (Tex. App— Dallas, August 15, 2017)

This is a premise liability/negligent policy implementation case where the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

Morgan sued the City after she fell on a sidewalk and alleged an unmarked ledge constituted a dangerous condition. The City filed a plea to the jurisdiction asserting the alleged “dangerous condition” was actually the design of the walkway, which is a discretionary function.  Morgan asserted the design was negligently implemented. The trial court granted the plea and Morgan appealed.

It is well settled that the design of a public work, such as a roadway, involves many policy decisions, and is a discretionary function. Likewise, the type of safety features to install on a public work is a discretionary function. While immunity can be waived if the claim is for the negligent implementation of the decision, such waiver must be tied to the execution and not the discretionary formation. Morgan claimed the City’s ordinances created a nondiscretionary duty to make the sidewalks safe.  However, Morgan did not include the ordinances in the record and did not request the court take judicial notice of the ordinances. Morgan has included in her brief “only the language of portions of provisions she has plucked from the Ordinance[s].” As a result, the court held the issues involving the ordinances were not properly before it.  However, even if it were, the selective provisions do not support Morgan’s position. The building code section states sidewalks “shall be set at a grade to provide for a certain slope range or as directed by the city engineer.” The court felt this language made clear the City made a policy decision to retain discretion to alter the specifications of sidewalks when needed.  Further, under the Neighborhood Integrity Code, whenever a sidewalk becomes dangerous, it is a public nuisance. However, those provisions state the chief building official “may” act to remedy the nuisance, but leaves the official with discretion to abate or not abate. As a result, nothing relating to a negligent implementation exists and everything points to the discretionary actions of the City. The plea was properly granted.

If you would like to read this opinion click here. The panel includes Justices Bridges, Myers, and Brown. Justice Brown delivered the opinion of the court. Attorneys listed for Lois Morgan are Richard Allan Stucky and Matthew J. Kita. Attorneys listed for the City are Peter G. Smith, Braden Metcalf, and Victoria Thomas.


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