4th Court of Appeals holds City painting of curb with yellow was a discretionary function entitling City to immunity
The City of San Antonio v. Elena Herrera, 04-18-00881-CV (San Antonio, Aug. 21, 2019)
This is a Texas Tort Claims Act (TTCA) case where the San Antonio Court of Appeals held the painting of a ramp and curb specific non-contrasting colors was a discretionary function, entitling the City to retain immunity.
Herrera fell in a City owned/operated parking garage allegedly due to a step from curb and ramp. The curb of the landing, the ramp, and the flares are all painted yellow. The City’s discovery responses stated these elements of the garage have “always been painted a bright, highly visible yellow color,” and that City maintenance crews had painted it the same way once or twice a year for at least the last twelve years. Herrera asserted the coloring made the curb and ramp appear flush so she did not realize a step-down existed. The City filed a plea to the jurisdiction, which was denied. The City appealed.
Herrera contends the unreasonably dangerous condition is the lack of visual contrast between the curb and the flares and the absence of any warning of the step down. Herrera confirmed that her fall was not caused by a slippery substance or by a defect in the actual structure of the ramp/flares, such as a chip or crack, or that the lighting in the garage was insufficient. Essentially, she is asserting the City failed to use contrasting colors. However, decisions about installing safety features are discretionary decisions. Yellow paint on elements of a walkway is a common safety feature used to provide visual cues of an elevation change and the City’s use or non-use was a discretionary function for which the City maintains immunity. The court found it significant no state regulations require any particular color scheme. Further, the City had no duty to bring forth evidence that a “conscious exercise” of discretion was made in order for the discretionary function exception to apply, only that the function is a discretionary one. Finally, since she already replead once, she is not entitled to another opportunity. Her claims were dismissed.
If you would like to read this opinion click here. Panel consists of Chief Justice Marion, Justice Chapa, and Justice Rodriguez. Memorandum opinion by Justice Chapa.
