Duty to maintain premises is a duty to maintain the original design; no waiver of immunity for negligent design issues says Houston Court of Appeals

City of League City v. Christobelle LeBlanc et al, 01-14-00720-CV (Tex. App. – Houston [1st Dist.], May 7, 2015).

This is a Texas Tort Claims Act (“TTCA”) premise defect case in which the First District Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the case.

While attending a parade in League City, Texas, Christobelle LeBanc stepped into a storm sewer drain and broke her ankle. It is undisputed the storm sewer drain was designed and built by the Texas Department of Transportation (“TxDOT”), and was located in TxDOT’s easement. The storm drain did not have a solid cover, but was instead covered with a grate. The LeBlancs sued TxDOT as well, but it was dismissed after the LeBlancs failed to provide written statutory notice under the TTCA. The City filed a plea to the jurisdiction with evidence showing TxDOT owned the drain and its design falls on TxDOT, not the City. The LeBlancs produced a municipal maintenance agreement they assert show the City maintains the drain. The trial court denied the plea and the City filed this interlocutory appeal.

After analyzing the pleadings, the responses to discovery, and the assertions of the LeBlancs, the Court determined their complaint stems from the design of the drain and its grate covering rather than a solid covering.  Maintenance of the drain was kept up and did not lead to the injury. As such, “LeBlanc’s claim is that the storm drain was improperly designed, not that it was improperly maintained. Even if the City had a duty to maintain the storm sewer, that duty would be to maintain the sewer as designed by TxDOT.”  Further, even if the City had designed it, immunity is not waived for the discretionary function of design. Finally, the court held that the drain was not a special defect as 1) it was located too far from the walkway to be part of the roadway, 2) it was the design of the drain, not an excavation or maintenance issue, which caused the alleged injury and 3) longstanding, routine, or permanent conditions are not special defects. As a result, immunity has not been waived and the plea should have been granted.

If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Brown and Justice Lloyd.  Opinion by Chief Justice Radack.  The attorney listed for the Leblancs is Joel B. Flowers III.  The attorneys listed for the City are John H. Hightower, Patricia Lecompte Hayden and Eric C. Farrar.