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The Discretionary Powers Exception in Texas

bike pathIn City of Austin v. Frame, a Texas Court of Appeals considered a lawsuit filed against the City by four plaintiffs under the Texas Tort Claims Act and recreational use statute after an accident. The case arose when a man drove his car off the street, jumped a curb, and drove onto a hike-and-bike trail next to the road. The vehicle hit two pedestrians, one of whom died of his injuries. The plaintiffs sued the City for negligence, gross negligence, premises liability, special defect, and breach of duty under the recreational use statute.

The plaintiffs claimed the City failed to safely construct the trail, knew of prior instances of vehicles traveling over the curb onto the trail in the same place, and failed to correct or warn about this dangerous condition. They also claimed the City’s policies required it to take corrective action about known safety hazards and that it should have constructed a guardrail in response.

The City argued it was immune from suit because the Texas Tort Claims Act didn’t waive governmental immunity for discretionary decisions about how a road should be designed and whether specific safety features should be installed. It also claimed that the plaintiff couldn’t amend the complaint to cure the problems with it because the facts pled in the complaint only related to discretionary decisions. The plaintiffs argued that there was no immunity because the City’s failure to address the known safety hazard was a failure to implement its own policy, and it was not a design decision or initial policy for which it could be immune.

The plea to the jurisdiction was denied, and the City appealed. The appellate court explained that whether the court had jurisdiction to hear a case against the government required the making of factual findings. If the relevant facts are undisputed, the court is supposed to make a determination about jurisdiction as a matter of law.

When injuries occur on recreational land owned by a city, the Texas recreational use statute limits the city’s obligations to those owed by a landowner to trespassers. Therefore, the only duty owed in this case would be the duty not to injure people willfully, wantonly, or with gross negligence. Immunity still remains for a governmental unit’s failure to perform an act it isn’t legally required to perform or a decision not to perform an act or a failure to decide to perform or not perform an act within its discretion under Tex. Civ. Prac. & Rem. Code § 101.056.

At issue was whether the plaintiffs’ allegations arose from a discretionary roadway design and the installation of safety features, or whether they arose from a negligent failure to implement an existing policy. Under the discretionary powers exception to the waiver of immunity, an act is considered discretionary if it requires the government to exercise its judgment.

When an action implicates social, economic, or political considerations, it is discretionary, whereas if it doesn’t implicate these considerations, the action is an operational or maintenance action. The court found that the existing policy didn’t mandate the construction of a guardrail with enough precision to make the action nondiscretionary. Moreover, the installation of safety features on the road in Texas is discretionary and immune from suit. The court reversed the lower court’s order denying the plea to the jurisdiction and dismissed the case.

If you suffer losses after a bicycle or car accident that you attribute to a governmental entity, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. There is a limited window of time within which to provide notice to the government and bring a lawsuit. Call our office as soon as possible for more information at 1-800-862-1260.

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