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Texas City’s Failure to Address a Safety Hazard

woodsIn a recent Texas appellate case, four people sued the City of Austin under the Texas Tort Claims Act and the recreational use statute. The case arose when a man driving under the influence drove off the street, jumped a curb, and drove onto a hiking and biking trail next to the road. The car and a traffic warning sign struck and killed two people who were walking, a man and a woman. The man died due to his injuries. The drunk driver was sentenced to five years in prison for aggravated assault with a deadly weapon.

The man’s survivors sued the drunk driver and the city. Against the city, they asserted claims of gross negligence, negligence, premises defect, and special defect and argued that the city had breached its duties under the recreational use statute. They claimed that the city failed to safely build the trail, knew of previous incidents when vehicles traveled over the curb and onto the trail in the same location, and failed to appropriately warn or repair the dangerous condition. They also argued that the city maintained policies that required it to repair the problem once a danger was identified and that their failure to build a barrier was a failure to carry out a ministerial action that the city’s own policies required.

The city claimed that governmental immunity barred the plaintiffs’ claims, since sovereign immunity wasn’t waived for its discretionary choices related to the design of the road and the safety features to be installed. The plaintiffs responded that there was no immunity because the failure to fix the danger on the trail was a negligent failure to implement its own policy, rather than an initial design or policy choice for which there was immunity.

The court denied the city’s motion, and the city appealed. The appellate court explained that a city gets its governmental immunity from the State’s immunity when the city is performing governmental tasks. In premises liability cases, a governmental entity owes a claimant the duty that a private individual would owe to a licensee visiting a piece of private property. Furthermore, if a death occurred on recreational land, the recreational use statute limits the duty owed to that of a duty owed to a trespasser on private property. This duty is simply not to hurt the trespasser with gross negligence or willful or wanton conduct. A city can be sued under the Texas Tort Claims Act or recreational use statute only if it’s grossly negligent or willfully or wantonly hurts the plaintiff.

The plaintiffs argued that their evidence showed the city was aware that there was a safety hazard in that location. They argued that this implicated the merits of the case and that the appellate court should affirm the lower court’s denial of the city’s plea to the jurisdiction. The city argued that even if the facts put forward by the plaintiffs were true, they wouldn’t overcome governmental immunity for discretionary decisions. It further argued that even if it actually knew of prior accidents there and had a policy of identifying safety hazards, the policy wouldn’t mandate it take any particular action.

The appellate court explained that the plaintiffs were basically complaining about how the city chose to allocate resources in delaying the building of a barrier or guardrail. All that their liability theory implicated was discretionary decisions, and the city retained sovereign immunity over those. It reversed the order denying the plea to the jurisdiction.

If you are injured on somebody else’s property, you should consult a Texas attorney with experience in premises liability cases to seek a favorable outcome. Consult the experienced San Antonio attorneys at Carabin & Shaw for more information at 1-800-862-1260.

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