Kelly, Patrick L. v. City of La Marque, Texas ( 2002 )

Opinion issued July 3, 2002  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-00-01068-CV

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PATRICK L. KELLY, Appellant

V.

THE CITY OF LA MARQUE, Appellee

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On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 99-CV-0451

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O P I N I O N

Appellant, Patrick L. Kelly, challenges summary judgment rendered in favor of appellee, the City of La Marque (the City). We address whether the City is immune from liability for injuries Kelly sustained when he drove a motorcycle into a metal cable barricade blocking a waterway. ⁽¹⁾ We affirm.

Facts

In 1999, Kelly lived in a home on Raymond Avenue in La Marque. A waterway ran behind Kelly's home. Several city streets ended at the waterway. It is not clear who owned the waterway, but the City had assumed some control over it. The City paved part of the waterway, kept another part of it mowed, and also used it to access some utility poles.

After several residents complained of criminal activity and illegal dumping on the waterway, the City closed part of it to traffic by placing barricades at the end of Kansas, Bellview, and Rosalee Streets. The barricade at the end of Rosalee Street consisted of metal poles set in the ground in concrete, with a metal cable suspended between the two innermost poles. Reflective tape was wrapped around and hung down on the cable. The City did not erect any warning signs prohibiting vehicles from entering the waterway.

At about 3:00 p.m. on April 12, 1999, Kelly was riding a friend's motorized dirt bike in the area behind Kelly's home. Kelly struck the cable at Rosalee Street while attempting to ride the dirt bike at a speed of about 10 miles per hour down the blocked part of the waterway. Kelly fell off the dirt bike and injured his wrist. Kelly sued, claiming the City was negligent because it did not place warning signs around the barricade, and because the cable did not have reflective tape at the time of the accident. The City moved for summary judgment, relying on the affirmative defense of sovereign immunity. Kelly responded to that motion, and, after the trial court allowed further discovery, the City filed an amended summary judgment motion raising sovereign immunity, to which Kelly did not respond. The trial court rendered judgment for the City on the City's amended motion.

Standard of Review

In reviewing the rendition of a traditional summary judgment, we assume all evidence favorable to the nonmovant is true. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); see also Tex. R. Civ. Proc. 166a(c). We indulge every reasonable inference and resolve every reasonable doubt in favor of the nonmovant. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). A defendant may obtain summary judgment by conclusively establishing all elements of an affirmative defense, such as immunity from liability, as a matter of law. Ramos v. Texas Dep't. of Pub. Safety, 35 S.W.3d 723, 726 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).  

Sovereign Immunity   

In two points of error, Kelly challenges the trial court's judgment on several grounds. We address whether the trial court erred in granting the City's summary judgment motion.  

Kelly claims that the City waived its immunity under section 101.021(2) of the Texas Civil Practice and Remedies Code, which permits a governmental unit to become liable for "personal injury and death so caused by condition or use of tangible personal or real property if the governmental unit would, if it were a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997).

The City contends its immunity is not waived because Kelly's claim is based on the City's discretionary act, as defined in section 101.056(1) of the Texas Civil Practice and Remedies Code, which avoids waiver of immunity if the alleged negligence is "the failure of a governmental unit to perform an act that the unit is not required by law to perform." See Tex. Civ. Prac. & Rem. Code Ann. § 101.056(1) (Vernon 1997). Moreover, a governmental unit cannot incur liability for a claim based on the "unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 101.056(2) (Vernon 1997).

Kelly responds that the steel cable constituted a special defect, thus rendering the immunity provision under section 101.056(2) of the Tort Claims Act inapplicable because of section 101.060(c), which states a governmental unit may be liable for injuries arising from failure to "warn of special defects such as excavations or roadway obstructions." See Tex. Civ. Prac. & Rem. Code Ann. § 101.060(c) (Vernon 1997). In addition, Kelly argues that, even if the act was discretionary, the City waived immunity because the City negligently implemented the metal cable barricade.  

• Use of Tangible Personal or Real Property

The parties agree that Kelly's injury was "caused by a condition or use of tangible personal or real property," and that the City could "if it were a private person, be liable to [Kelly] under Texas Law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). Therefore, the City waived immunity unless its conduct falls into another category that maintains immunity.

•   Discretionary Act

A governmental unit does not waive immunity from liability when the decision in question is discretionary. See Tex. Civ. Prac. & Rem. Code Ann. § 101.056(2). A decision to act or to refrain from acting is discretionary if: (1) the governmental unit is not required by law to perform or not perform; or (2) the law leaves the performance or nonperformance to the discretion of the governmental unit. Id. Whether a governmental activity is discretionary is a question of law. State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).

Texas courts have consistently held that the design of a roadway, the decision to install safety features, and the decision to regulate traffic by signs, barricades, or other means, are discretionary decisions for which the State cannot be sued. Texas Dep't of Transp. v. Ramirez, No. 01-0432, 45 Tex. Sup. Ct. J. 594, 595 (Apr. 25, 2002) (per curiam) (highway median); Miguel, 2 S.W.3d at 250-51 (barrels placed in front of missing rail to serve as temporary warning device); State v. Rodriguez, 985 S.W.2d 83, 86 (Tex. 1999) (detour around temporary construction); Maxwell v. Texas Dep't of Transp., 880 S.W.2d 461, 464 (Tex. App.--Austin 1994, writ denied) (three amber reflectors on a post to warn of culvert); Wenzel v. City of New Braunfels, 852 S.W.2d 97, 100 (Tex. App.--Austin 1993, no writ) (not erecting a barricade, warning sign, or other device for regulating traffic at county fair); McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex. App.--Fort Worth 1991, no writ) (barricades along parade route); Villarreal v. State, 810 S.W.2d 419, 420-21 (Tex. App.--Dallas 1991, writ denied) (exit ramp sign). We hold that the City's decision to block the waterway was discretionary. Accordingly, the City did not waive its immunity.

• Special Defect

Even if the decision in question is discretionary, when a resulting condition constitutes a special defect, the governmental unit has an obligation to place a warning device; otherwise, it waives its immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 101.060(c). Generally, a special defect is a condition that presents an unexpected and unusual danger to ordinary users of roadways. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992). Special defects are obstructions that present unexpected and unusual dangers to ordinary users of the highway that are beyond the normal course of events. Maxwell, 880 S.W.2d at 465 (citing Payne, 838 S.W.2d at 238). The existence of a special defect is a question of law. Maxwell, 880 S.W.2d at 465.

Although appellant has argued that the lane or waterway is a street, there is no evidence that the ordinary users of the lane faced an unexpected or unusual danger. The evidence shows that the only ordinary users of the lane were drivers of police and utility vehicles, who had not reported problems with the cable. Moreover, the barricade had been up for many years and was not a temporary, unexpected, or unusual danger. We hold that the cable was not a special defect. Consequently, it was not necessary for the City to have placed a warning device concerning the cable.

Kelly contends the City was negligent for not placing warning signs around the poles and steel cable and that the barricade is therefore a special defect. We know of no authority, nor does Kelly cite any, holding that a governmental unit's discretionary decision to place a blockade or safety device resulted in that same device's becoming a special defect for the purposes of section 101.060(c).

• Negligent Implementation

Kelly next contends that the City waived its immunity because it negligently implemented its decision to erect the barricade. The City owed no duty to Kelly, however, unless Kelly established the barricade is either a special defect or a premise defect. See Payne, 838 S.W.2d at 237. We have already held that the City did not waive its immunity under a special defect theory. Under a premises-defect theory, Kelly must show that the City actually knew of the dangerous condition. See id. at 237. Kelly has not shown that the City actually knew, or even that it should have reasonably known of, the condition. Therefore, Kelly has not established that the City waived its immunity. ⁽²⁾

We overrule Kelly's two points of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Cohen, Hedges, and Taft.

Justice Cohen did not participate in this decision.

Do not publish. Tex. R. App. P. 47.4.

1.

A waterway is an area underneath which lies a drainage system of the adjacent area. This waterway is commonly referred to as the "Raymond Street Waterway." It consists of a 20' wide waterway and a 21.5' lane adjacent to one side. It is identified as a lane in official map records. It can support motor vehicular traffic.

2.

Once governmental immunity has been established, and the governmental entity's duty thus negated, facts relating to the entity's negligence or negligent implementation are immaterial. Maxwell, 880 S.W.2d at 465 (citing Eakle v. Texas Dep't of Human Servs., 815 S.W.2d 869, 874 (Tex. App.--Austin 1991, no writ).