Mitchell v. City of Dallas

• Decision Date: 31 March 1993
• Docket Number: No. 05-91-01416-CV,05-91-01416-CV
• Citation: 855 S.W.2d 741
• Parties: Saundra Harris MITCHELL and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris, Appellants, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 741

855 S.W.2d 741

Saundra Harris MITCHELL and Jan P. Mitchell, Individually and as Next Friends of Ashley J. Harris, Appellants, v. CITY OF DALLAS, Appellee.

No. 05-91-01416-CV.

Court of Appeals of Texas Dallas.

March 31, 1993.

Kristina Bline Dial, Harrison & Dial, Burleson, for appellants.

Patricia Medrano, Asst. City Atty., Dallas, for appellee.

Before LAGARDE, KINKEADE and BARBER ¹, JJ.

OPINION

BARBER, Justice.

This is a premises liability case. Saundra Harris Mitchell and Jan P. Mitchell sued the City of Dallas for damages sustained by their minor son when he fell from his bicycle at a municipal park. The City moved for summary judgment. The trial court rendered judgment in favor of the City. We reverse and remand.

FACTUAL BACKGROUND

Ashley Harris suffered serious injuries when he fell from his bicycle into a creek bed at Hamilton Park. The park is owned and maintained by the City of Dallas. The accident occurred at a part of the creek where there is a fifteen to twenty-five foot drop-off. This condition was created by a gabion wall constructed by the City for erosion control. The wall consists of rocks wired together. Ashley fell over the edge of the drop-off onto the rocks below.

The Mitchells allege that the City was negligent and grossly negligent in the construction and maintenance of the gabion wall. They also allege that the City failed to warn park users of the steep drop-off and failed to construct a fence or other barrier around this dangerous area.

ISSUES ON APPEAL

The Mitchells attack the trial court's summary judgment on two broad grounds. First, they contend that this case is governed by common-law principles because the establishment and maintenance of public parks are proprietary functions. Alternatively, the Mitchells argue that their claims against the City are within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They assert that fact issues exist concerning gross negligence in the construction and maintenance of the gabion wall and the City's negligent failure to warn of or correct this dangerous condition.

LIABILITY UNDER COMMON LAW

In their fourth point of error, the Mitchells contend that the Texas Tort Claims Act does not apply to this case. Rather, the Mitchells argue that the City is liable under common-law principles because the establishment and maintenance of public parks are proprietary functions.

Under common law, the establishment and maintenance of public parks were deemed proprietary functions. See Dancer v. City of Houston, 384 S.W.2d 340, 342 (Tex.1964); City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498, 499 (1928). These common-law classifications have been redefined under the Texas Tort Claims Act. Section 101.0215 of the Act now provides that the operation of parks and zoos is a governmental function. See TEX.CIV.PRAC. & REM.CODE ANN. § 101.0215(a)(13) (Vernon Supp.1993).

The Mitchells argue that section 101.0215(a) does not reclassify all actions taken by a city regarding public parks. We refuse to adopt such a restrictive interpretation of the statute. To the contrary, the legislature specifically provided that the proprietary functions of a municipality do not include those governmental activities listed in section 101.0215(a). See TEX.CIV.PRAC. & REM.CODE ANN. § 101.0215(c) (Vernon Supp.1993).

We conclude that the claims against the City made the basis of this suit involve governmental functions. The Mitchells do not have any common-law cause of action against the City. We overrule the fourth point of error.

LIABILITY UNDER THE TEXAS TORT CLAIMS ACT

The Mitchells next contend that the trial court erred in granting summary judgment because they stated a cause of action within the waiver provisions of governmental immunity under the Texas Tort Claims Act. They allege that the City is not immune from liability for negligent construction and maintenance of the gabion wall along the creek bank. See, e.g., City of Watauga v. Taylor, 752 S.W.2d 199, 202 (Tex.App.--Fort Worth 1988, no writ); Stanford v. State Dep't of Highways & Pub. Transp., 635 S.W.2d 581, 582 (Tex.App.--Dallas 1982, writ ref'd n.r.e.).

The City argues that these allegations involve the design, upgrading, and placement of an erosion control device. The City contends that it is immune from liability because these activities involve discretionary functions. See, e.g., City of El Paso v. Ayoub, 787 S.W.2d 553, 554 (Tex.App.--El Paso 1990, writ denied); Tarrant County Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex.App.--Fort Worth 1989, writ denied).

1. Governmental Immunity

A municipality performing a governmental function is afforded sovereign immunity unless immunity has been waived under the Texas Tort Claims Act. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp.1993). A governmental unit is liable for personal injuries proximately caused "by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986).

2. Discretionary Functions

The Texas Tort Claims Act creates certain exceptions to the waiver of governmental immunity. Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or

(2) a governmental 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 (Vernon 1986); see generally Lee M. Larkin, Comment, The "Policy Decision" Exemption of the Texas Tort Claims Act: State v. Terrell, 32 BAYLOR L.REV. 403 (1980) [hereinafter Larkin]. ²

The discretionary function exception to the waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex.App.--Fort Worth 1991, no writ). Thus, a governmental entity is immune from liability if an injury results from the formulation of policy. However, a governmental unit is not immune if an injury is caused by the negligent implementation of that policy. See Terrell, 588 S.W.2d at 787-88; Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex.App.--Austin 1982, writ ref'd n.r.e.); Larkin at 409. This distinction is often stated in terms of actions taken at the planning or policy-making level, which are immune, and actions taken at the subordinate or operational level, which are not immune. See McKinney, 814 S.W.2d at 866; Crossland, 781 S.W.2d at 433; Larkin at 410.

Design decisions made by the City are discretionary and therefore immune from liability. See Crossland, 781 S.W.2d at 433; Taylor, 752 S.W.2d at 202; Stanford, 635 S.W.2d at 582. Maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability. See City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985); Taylor, 752 S.W.2d at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex.App.--Beaumont 1986, writ ref'd n.r.e.). There is some conflict in the case law regarding the characterization of construction activities. Compare Smith, 687 S.W.2d at 303, and Ayoub, 787 S.W.2d at 554 (indicating that city is not immune from liability for construction and maintenance activities), with Taylor, 752 S.W.2d at 202 (indicating that planning and construction are immune activities).

We hold that construction activities are not discretionary functions. These activities involve the implementation of planning or policy-making decisions at the operational level. Therefore, the City is not immune from liability for claims based on the negligent construction and maintenance of the gabion wall.

STANDARD OF CARE

We next determine the standard of care owed by the City to park users. The City argues that it only owes the duty owed to a trespasser. The Mitchells contend that the City owes the same duty as owed to an invitee because they paid for use of the premises through the payment of taxes and because of the nature of the premises defect.

1. Statutes

Section 101.022 of the Texas Tort Claims Act provides:

(a) If a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets.

TEX.CIV.PRAC. & REM.CODE ANN. § 101.022 (Vernon 1986) (emphasis added).

Section 75.002 of the Civil Practice and Remedies Code provides:

If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:

....

(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises.

TEX.CIV.PRAC. & REM.CODE ANN. § 75.002 (Vernon 1986) (emphasis added).

These two statutes are in apparent conflict in cases where the owner or occupier of the premises is a governmental unit that gives implied permission to persons to enter the property for recreational purposes. We must resolve this conflict by examining the case law and implementing well-settled rules of statutory construction.

2. Case Law

One court has held that the statutory predecessor to section 75.002, article 1b of the Revised Civil Statutes, should apply only if the injured party was a trespasser. It held the statute did not apply in a...