Stanford v. State Dept. of Highways and Public Transp., 21046
| Decision Date | 30 April 1982 |
| Docket Number | No. 21046,21046 |
| Parties | Jack L. STANFORD, et al., Appellant, v. STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellee. |
| Court | Texas Court of Appeals |
James W. Mills, III, Office of Windle Turley, Dallas, for appellant.
Delmar L. Cain, Asst. Atty. Gen., Austin, for appellee.
Before ROBERTSON, STOREY and GUILLOT, JJ.
This is an appeal from a summary judgment. The suit by appellant was for damages sustained in an accident on July 4th, 1978, when an automobile, driven by one of appellant's daughters, approached an overpass in Seagoville, Texas, drifted left, and plunged twenty-six feet, killing another daughter and seriously injuring the driver. The appellant alleged that the failure of the appellee to provide guardrails was a breach of the non-discretionary duty to maintain the highway; and, therefore, a fact issue was raised as to the negligence of the appellee. Because we hold that the construction of guardrails in this instance was discretionary and not a function of maintaining the existing highway, we affirm.
The resolution of this controversy is determined by the interpretation of the Texas Tort Claims Act, art. 6252-19 § 14(7) Tex.Rev.Civ.Stat.Ann. (Vernon 1970). That section grants an exemption to the State for claims which are based on the failure of a governmental unit to perform a discretionary act. It reads:
Sec. 14. The provisions of this Act shall not apply to:
....
(7) Any claim based upon the failure of a unit of government to perform any act which said unit of government is not required by law to perform. If the law leaves the performance or non performance of an act to the discretion of the unit of government, its decision not to do the act, or its failure to make a decision thereon, shall not form the basis for a claim under this Act.
Appellant contends that the construction of guardrails was statutorily imposed on appellee by art. 6674q-4 which states in pertinent part:
... the State Highway Commission shall ... provide:
(a) for the efficient maintenance of all highways comprising the State system.
Art. 6647q-4 Tex.Rev.Civ.Stat.Ann. (Vernon 1977). There is no question that the maintenance of the highways is a non-discretionary duty. Sutton v. State Highway Department, 549 S.W.2d 59 (Tex.Civ.App.-Waco 1977, writ ref'd n. r. e.).
The resolution of the interpretation of art. 6647q-4 is found by answering the following questions:
a) What is maintenance?
b) Is the construction of guardrails in this instance maintenance of the overpass?
Since maintenance is not defined in the statute we must use its commonly accepted definition relying on prior decisions when possible. Tex.Rev.Civ.Stat.Ann. art. 10 (Vernon 1969). To "m...
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