the City of Austin v. Jennifer Frame, Individually, and as Personal Representative of the Estate of John William Griffith Greg Griffith Cheryl Burris And Diana Pulido, 03-15-00292-CV

Background

On May 7, 2012 a drunk driver veered off West Cesar Chavez St., mounted a curb and struck pedestrians on the adjacent Hike and Bike Trail; one pedestrian died and another was seriously injured.
Plaintiffs sued the City of Austin (and the driver) for negligence, alleging roadway/trail safety defects; the City asserted governmental immunity under the Texas Tort Claims Act and filed a plea to the jurisdiction.
At the plea hearing Plaintiffs produced a City employee report that referenced a generic Parks & Recreation Department "policy" about identifying and addressing hazards; Plaintiffs did not produce a named or specific departmental policy mandating particular safety measures at the accident site.
The trial court denied the City’s plea to the jurisdiction without stated reasoning; the City appealed the denial (accelerated appeal).
The City’s central position: decisions about roadway design and whether to install safety features are discretionary policy decisions preserved by sovereign/governmental immunity under Tex. Civ. Prac. & Rem. Code §101.056, so the trial court lacks subject-matter jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City’s alleged failure to install safety features waived governmental immunity	Frame contends the City had a Parks & Rec policy requiring abatement of known hazards and that the City’s failure to implement that policy is actionable	City contends design and decisions about safety features are discretionary policy decisions protected by immunity; Plaintiffs failed to identify a specific mandatory policy or a ministerial duty	Trial court denied City’s plea to jurisdiction; appeal pending (City argues denial was erroneous because immunity protects discretionary roadway-design and safety decisions)
Whether the alleged City policy (from an employee report) establishes a ministerial duty	Plaintiffs argue the report references departmental policies that mandate action to address hazards, making implementation ministerial	City argues the report is vague, does not identify a binding written policy, policymaker, or precise mandate, and individual employee statements cannot bind the City	Trial court denied plea; factual and legal sufficiency of the purported policy remains disputed on appeal
Whether prior incidents or evidence of earlier vehicle incursions negate immunity	Plaintiffs point to prior incidents (allegedly up to 13) and heavy trail usage to show the City should have acted	City relies on precedent holding that prior incidents do not automatically convert discretionary design choices into ministerial duties (state retains discretion to act)	Trial court denied plea; City argues prior incidents do not waive immunity as a matter of law
Whether alleged injuries stem from negligent implementation vs. discretionary formulation of policy	Plaintiffs frame their claim as negligent implementation of a safety-policy	City says plaintiffs actually challenge roadway design/decision not to install barriers (policy formulation), which is immune	Trial court denied plea; City urges that the allegations concern policy formulation and thus are barred by immunity

Key Cases Cited

State v. Miguel, 2 S.W.3d 249 (Tex. 1999) (courts decide discretionary-function questions as a matter of law)
Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653 (Tex. 2007) (distinguishes discretionary policy formulation from nonimmune implementation)
Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864 (Tex. 2002) (lack of safety features reflects discretionary decision; immunity applies)
City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex. 1994) (ministerial act defined as duty prescribed with precision leaving no discretion)
Texas Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (plaintiff bears burden to plead and prove jurisdictional facts to overcome immunity)
Wenzel v. City of New Braunfels, 852 S.W.2d 97 (Tex. App.—Austin 1993) (decision whether to use barricades/signs to protect fairground pedestrians is discretionary)
Bellnoa v. City of Austin, 894 S.W.2d 821 (Tex. App.—Austin 1995) (plaintiff must identify actual city policies when alleging they create mandatory duties)