Failure to install guardrail was not a ministerial act which waives immunity says Austin Court of Appeals

The City of Austin v. Jennifer Frame, et al  03-15-00292-CV (Tex. App.- Austin, May 26th 2016)

This is a recreational use personal injury case where the Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Rosales jumped the curb and drove onto a hike-and-bike trail. In so doing his vehicle and debris struck and killed Colonel Griffith and injured Pulido. The appellees (the estate and Pulido) sued the City for, among other things, failure to construct a guardrail or barrier for a known danger, which was allegedly a failure to carry out a ministerial act. The City filed a plea to the jurisdiction, which was denied. The City appealed.

The sole issue on appeal is whether the appellees’ allegations concern discretionary roadway design, as the City contends, or a negligent failure to implement a previously formulated policy, as the appellees contend. Texas courts have generally found that actions and decisions implicating social, economic, or political considerations are discretionary while those that do not involve these concerns are operational- or maintenance-level. The court analyzed the facts and policies alleged. It held that even if the City had a policy to fix identified hazards, “…it does not necessarily follow that the City’s failure to address this particular hazard was negligent policy implementation for which immunity is waived. The policy that the appellees describe does not mandate the construction of a guardrail or barrier with sufficient precision to make that action nondiscretionary…” “Rather, it requires the City to balance social and economic concerns and devise a plan to address each specific identified hazard. This demands a level of judgment…” which equates to discretionary actions.  Further, even if the City had made a specific decision to modify the area, “…immunity does not vanish where a governmental entity has decided to change the design of a public work but has not yet implemented that change.”  The plea should have been granted.

To read the opinion click here. Panel consists of Justices Puryear, Goodwin and Bourland. Memorandum opinion issued by Justice Bourland. Attorneys for Greg Griffith are Mr. Mike Davis and Mr. Sean E. Breen. Attorneys for Cheryl Burris are Mr. Mike Davis, Mr. Sean E. Breen and Virginia I. Hermosa. Attorneys for Diana Pulido are Mr. Mike Davis and Mr. Sean E. Breen. The City of Austin is represented by Ms. Chris Edwards.