City of Grapevine v. Sipes

• Decision Date: 16 June 2006
• Docket Number: No. 04-0933.,04-0933.
• Citation: 195 S.W.3d 689
• Parties: CITY OF GRAPEVINE, Texas Petitioner, v. Amy SIPES and Tana (Trevino) Waddell Respondents.
• Court: Texas Supreme Court

195 S.W.3d 689

CITY OF GRAPEVINE, Texas Petitioner, v. Amy SIPES and Tana (Trevino) Waddell Respondents.

No. 04-0933.

Supreme Court of Texas.

Argued February 15, 2006.

Decided June 16, 2006.

Amy L. Saberian, Katherine Elizabeth Anderson, P. Michael Jung, Strasburger & Price, L.L.P., Dallas, for Petitioner.

Constance M. Maher, The Maher Law Firm, Arlington, David F. Farris, Lively, Padfield & Stout, Fort Worth, for Respondents.

Philip A. Lionberger, Ryan D. Clinton, Office of Attorney General, Lauren K. Ford, Texas Municipal League, Austin, for Amicus Curiae.

Chief Justice JEFFERSON delivered the opinion of the Court.

Under the Texas Tort Claims Act, a governmental unit retains immunity for claims based on the absence of a traffic signal unless the absence is not corrected by the governmental unit within a reasonable time after notice. TEX. CIV. PRAC. & REM. CODE § 101.060(a)(2). The trial court held that this provision immunized the City of Grapevine from liability based on its alleged negligence in failing to install a traffic signal within a reasonable time after initially deciding to do so. The court of appeals disagreed and reversed in part the trial court's judgment. Because we conclude that "absence," as used in subsection (a)(2), requires a prior presence, we reverse in part the court of appeals' judgment and render judgment dismissing the case for lack of subject matter jurisdiction.

I Factual Background

The City of Grapevine and Grapevine Mills, L.L.C. ("Mills") entered into an agreement pursuant to which Mills would build the Grapevine Mills Mall (the "Mall"). To accommodate increased traffic, the City planned to widen a nearby road, Business 114, from two lanes to five, as part of what was termed the Northwest Highway Expansion Project. The City hired an engineering firm to create a traffic control plan for the project; the resulting plan required a permanent traffic signal at the intersection of Business 114 and State Highway 26. The plan did not call for a temporary traffic signal during construction, however.

Because the intersection became a high accident site during construction, the City asked the Texas Department of Transportation (TxDOT) to erect a temporary traffic signal on the state-owned right-of-way. TxDOT responded that funding was inadequate for such a signal, so the City began to raise the necessary monies itself. The City hired a private consultant to prepare a warrant study justifying the need for a temporary signal, and on October 29, 1997, City officials met to coordinate its construction; the City planned to begin installation by November 7. The signal was not installed, however, until December 5.

On November 28, the day after Thanksgiving, Amy Sipes and her daughter, Tana Trevino Waddell, were traveling northbound on 114, heading to the newly opened Grapevine Mills Mall. At the intersection of 114 and 26, Sipes stopped at the temporary stop sign, but alleges that her vision was obstructed by concrete barriers, a "road closed" sign, and barrels. As Sipes inched her vehicle forward, it was struck by a truck driven by Jerry Gaston, who had been traveling eastbound on Northwest Highway. Both Sipes and Waddell sustained injuries.

Sipes, individually and as next friend of her daughter, sued the City and others for damages from injuries sustained in the accident. The City pleaded governmental immunity and moved for summary judgment on that and other bases.¹ Sipes responded, alleging in part that the City had notice of a dramatic increase in vehicular accidents at the intersection, and that the absence of a traffic signal or a four-way stop, "where a permanent signal was provided for," waived the City's immunity pursuant to section 101.060. The trial court granted the City's motion and severed the claims. Sipes appealed.

The court of appeals reversed and remanded the trial court's judgment in favor of the City on the traffic signal issue, but affirmed the remainder of the judgment. 146 S.W.3d 273, 284-85. The court held that, while the City exercised discretion in deciding to install a temporary traffic signal at the intersection, "a question of material fact exists concerning whether the City properly implemented its decision by installing the temporary traffic signal within a reasonable time thereafter." Id. at 281. We granted the City's petition for review.² 49 Tex. Sup.Ct. J. 747, 195 S.W.3d 689 (June 16, 2006).

II Discussion The Tort Claims Act

The Texas Tort Claims Act (TTCA) waives immunity for personal injuries and deaths proximately caused by a condition or use of personal or real property if a governmental unit would, were it a private person, be liable. TEX. CIV. PRAC. & REM. CODE § 101.021(2). This use-of-property waiver, with which we have long grappled,³ is an exception to the general rule of governmental immunity. Today we construe an exception to the exception: the waiver's non-application to claims arising from "the absence, condition, or malfunction of a traffic or road sign, signal or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice." Id. § 101.060(a)(2). Specifically, we must decide whether and under what conditions the absence of a traffic light may give rise to a governmental unit's liability under the TTCA.

Section 101.060, entitled "Traffic and Road Control Devices," identifies three exceptions to the TTCA's waiver of immunity provisions:

(a) This chapter does not apply to a claim arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;

(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice; or

(3) the removal or destruction of a traffic or road sign, signal, or warning device by a third person unless the governmental unit fails to correct the removal or destruction within a reasonable time after actual notice.

Id. § 101.060(a)(1)-(3) (emphasis added); see also State v. Gonzalez, 82 S.W.3d 322, 326-327 (Tex.2002).

Sipes agrees that the City's initial decision to install a traffic signal was discretionary, but contends that, once the City made that decision, it faced liability for negligently implementing it. The court of appeals agreed. 146 S.W.3d at 279-81. That court noted that governmental units may be liable for negligent implementation of discretionary acts, and that "[s]ection 101.060 reiterates this principle within the specific context of traffic control devices." Id. at 279-80. The court held that, "once the city makes the decision to install a traffic control device, it has no discretion but to do so within a reasonable time," and "[i]f the traffic control device is not installed after the policy decision is made to do so, then it would constitute `absence' under section 101.060(a)(2)." Id. at 280 (citations omitted). Thus, the court concluded that "the Act waives immunity when the city exercises its discretion in deciding to install a traffic control device but does not implement that decision within a reasonable amount of time." Id. (citing TEX. CIV. PRAC. & REM. CODE § 101.060(a)(2); City of Fort Worth v. Robles, 51 S.W.3d 436, 442 (Tex.App.—Fort Worth 2001, pet. denied)).

We have not previously construed the term "absence" as used in subsection 101.060(a)(2). But see Gonzalez, 82 S.W.3d at 325 (using the phrase "the signs' absence" to describe two stop signs that were removed after being in place); Alvarado v. City of Lubbock, 685 S.W.2d 646 649 (Tex.1985) (holding that a speed-limit sign posting the wrong speed limit constituted "the absence of or condition of a traffic sign").⁴ As noted by the parties, our courts of appeals have differed in their interpretation of the term. At least one has determined that an "absence" refers to "`a sign or warning device that was in place at one time but was subsequently removed,'" see Texas Dep't of Transp. v. Sanchez, 75 S.W.3d 24, 27 (Tex.App.—San Antonio 2001, pet. denied) (quoting City of San Antonio v. Schneider, 787 S.W.2d 459, 468 (Tex.App.—San Antonio 1990, writ denied)), while others have held that an "absence" occurs when a governmental unit exercises its discretion in deciding to install a traffic signal, but then fails to implement the decision within a reasonable time. See, e.g., Zambory v. City of Dallas, 838 S.W.2d 580, 583 (Tex.App.—Dallas 1992, writ denied); see also Tex. Dep't of Transp. v. Bederka, 36 S.W.3d 266, 272 (Tex.App.—Beaumont 2001, no pet.) ("[T]he non-discretionary implementation of the policy decision to install a different device . . . would be the absence of a particular traffic device under 101.060(a)(2) . . . ."); Reyes v. City of Houston, 4 S.W.3d 459, 462 (Tex.App.—Houston [1st Dist.] 1999, pet. denied). As one court summarized: "Courts of appeals have interpreted subsection 101.060(a)(2) to mean that immunity is waived for the absence of a warning sign . . . if the absence is due to the disappearance of an installed sign or the failure to install a sign [within a reasonable time] after the governing body authorized its installation." Ihlo v. State, 71 S.W.3d 494, 496 (Tex.App.—Austin 2002, no pet.)(emphasis added)(employing both definitions to conclude that warning signs were not absent); see also Robles, 51 S.W.3d at 442 (utilizing both definitions to conclude that stop signs were not absent); Sanchez, 75 S.W.3d at 27 (applying first definition but recognizing the second); 19 WILLIAM V. DORSANEO III, TEXAS LITIGATION GUIDE § 293.12[9][b][ii] (2005) (noting dual definition).

Accordingly, we must decide whether an "absence," as used in (a)(2), requires a prior presence, or whether it includes the failure to install a traffic...