City of Killeen v. Mary Cheney, Surviving Spouse of Decedent Eric Cheney, 03-18-00139-CV (Tex. App. – Austin, Nov. 8, 2018).
This is an interlocutory appeal from the denial of the City’s plea to the jurisdiction regarding a Texas Tort Claims Act (“TTCA”)/vehicle accident case where the Austin Court of Appeals reversed the denial and dismissed the claims.
The accident that resulted in Eric Cheney’s death occurred at a portion of an interchange consisting of two separate but sequential intersections on Rosewood Drive between the frontage roads running parallel to US 190. The City formally decided that that a three-phase signal would best meet the traffic needs at the Interchange. However, according to the City, it was unable to obtain certain parts necessary for the installation needed for a three-phase system when the interchanged was open to the public. The City utilized a four-phase system for the two intersections until it could obtain the parts. When all the parts were finally installed, the City reprogramed the signals. The City’s traffic specialist, Stottler, performed the reprograming and testified he observed the signals fully operational and operating at the correct intervals. He also observed that traffic was moving through the intersections with no apparent problem. Approximately fifteen minutes after he left the scene, Eric Cheney drove his motorcycle through the interchange and collided with a SUV. After several more accidents occurred, the City erected a sign noting “TRAFFIC SIGNAL TIMING CHANGE USE CAUTION.” Cheney’s family filed suit. Cheney asserted the change in phase created an unreasonably dangerous condition for those who normally used the roadway and the City provided no notice. Cheney also alleged that the City negligently implemented the signal change policy by picking a high-traffic day. The City filed a plea to the jurisdiction which was denied. The City appealed.
The TTCA provides a waiver of immunity under certain premise defect theories. However, such waiver does not apply if the negligent conduct is part of the City’s discretionary functions. The purpose of this discretionary-function exception to waiver of immunity is to avoid judicial review of government policy decisions. Further, under §101.060, the City retains immunity for certain types of claims related to traffic and road control devices. Cheney agreed that her claims did not assert a missing or malfunctioning traffic control device but asserts it is inapplicable under a general premise defect theory. Further, she asserts the discretionary actions of deciding to go to a three-phase system was not the negligent action, but the improper implementation was negligent. The court held §101.060 is not an independent waiver of immunity. It imposes special limitations on a waiver of immunity otherwise effected by §101.021. As a result, “a plaintiff may proceed on a claim that is not the type of claim to which section 101.060 applies—even one that generally involves a ‘traffic’ or ‘road control device’—so long as it is otherwise a claim for which immunity has been waived under section 101.021 and to which no other exception to waiver in the Act applies.” So, while the court agreed the pleadings do not establish a waiver of immunity under §101.060, the court went on to analyze a general premise defect theory of liability. However, Cheney does not assert a waiver of immunity under this theory either. As long as the device is properly displaying or operating, there is no “condition” over which to warn or make safe. Moreover, any possible danger created by the City’s decision to reprogram the traffic signals would be negated by motorists’ compliance with the signals. Ordinary drivers should expect to encounter traffic signals and to react accordingly, regardless of how that particular traffic signal may have operated in the past. The plea should have been granted.
If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Pemberton, Justice Field. Memorandum Opinion by Justice Field. The attorneys listed for the City are John A. Powell and Roy L. Barrett. The attorneys listed for Cheney are Kaitlyn Faucett and Jared I. Levinthal.