Stephen F. Austin State University v. Flynn

Decision Date29 June 2007
Docket NumberNo. 04-0515.,04-0515.
Citation228 S.W.3d 653
PartiesSTEPHEN F. AUSTIN STATE UNIVERSITY, Petitioner, v. Diane FLYNN, Respondent.
CourtTexas Supreme Court

Greg Abbott, Attorney General of Texas, Rance L. Craft, Barry Ross McBee, Edward D. Burbach, Rafael Edward Cruz, John P. Giberson, Brenda E. Brockner, Office of the Attorney General of Texas, Austin, Kent Sullivan, Stinson Morrison Hecker LLP, Kansas City, MO, for Petioner.

Thomas Stefan Allen, Nacogdoches, for Respondent.

Justice MEDINA delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice O'NEILL, Justice BRISTER, Justice GREEN, and Justice JOHNSON joined, and in all but Part III of which Justice HECHT, Justice WAINWRIGHT, and Justice WILLETT joined.

This interlocutory appeal concerns a trial court's order denying Stephen F. Austin State University's (SFA) plea to the jurisdiction and motion to dismiss. The court of appeals affirmed the order, holding that the Texas Tort Claims Act waived SFA's sovereign immunity and that the recreational use statute did not apply. 202 S.W.3d 167. Because we conclude that the recreational use statute does apply to this suit and does operate under the undisputed facts to bar the plaintiff's claim here, we reverse the court of appeals' judgment and render judgment dismissing the case.

The Lanana Creek Trail is a community trail open to the public for walking and cycling. Part of the trail crosses SFA's campus, and the university has granted an easement to the City of Nacogdoches for this use. Diane Flynn was riding her bike on the trail, crossing the SFA campus, when she was hit by a stream of water from an oscillating sprinkler. The force of the water knocked her off her bike, causing her injury. The sprinkler was part of an in-ground irrigation system on SFA's campus, and this particular sprinkler head was on SFA's shot-put field about four feet from the trail.

Flynn sued SFA for damages under the Tort Claims Act, alleging that her injuries were proximately caused by SFA's negligent use of real property, negligent operation of the premises, negligent activity, and gross negligence. SFA filed a plea to the jurisdiction and motion to dismiss, arguing that sovereign immunity had not been waived under the Tort Claims Act,1 or alternatively, that it was entitled to protection under the recreational use statute2 because it had granted the public permission to use its property for recreational purposes.

The trial court denied SFA's plea to the jurisdiction, and SFA perfected an interlocutory appeal. See TEX. CIV. PRAC. & REM.CODE § 51.014(a)(8). The court of appeals affirmed the trial court's order, concluding that Flynn had sufficiently alleged a premises defect for which the Tort Claims Act waived sovereign immunity and that neither the discretionary powers exception to the Act nor the recreational use statute barred Flynn's claim. 202 S.W.3d at 175-76. SFA appeals, arguing again that its decision to install an irrigation system was a discretionary function within the bounds of the discretionary powers exception to the Tort Claims Act or, alternatively, that the recreational use statute protects it from liability.

II

Because this is an interlocutory appeal, we first consider the issue of our own jurisdiction. An interlocutory appeal is generally final in the court of appeals. TEX. GOV'T CODE § 22.225(b)(3). There are exceptions, however, such as when the court's decision conflicts with a prior decision of another court of appeals or of this Court. TEX. GOV'T CODE §§ 22.001(a)(2), 22.225(c). Two decisions conflict for purposes of establishing our jurisdiction when the two are so similar that the decision in one is necessarily conclusive of the decision in the other.3

SFA contends that we have jurisdiction because the court of appeals' decision here conflicts with Guadalupe-Blanco River Authority v. Pitonyak, 84 S.W.3d 326 (Tex.App.-Corpus Christi 2002, no pet.). In that case, the Corpus Christi Court of Appeals rejected the contention that a governmental unit might control the premises for purposes of waiving immunity under the Tort Claims Act and yet not sufficiently control the premises for purposes of the recreational use statute. See id. at 339-40.

The case concerned two men who drowned while boating in a bayou. Their survivors sued the state river authority whose jurisdiction included the bayou. The authority filed a plea to the jurisdiction which the trial court denied. Id. at 326. The court of appeals reversed, holding that the recreational use statute applied to protect the authority from liability even though the survivors pleaded a premises defect claim sufficient to support a waiver of immunity under the Tort Claims Act. Id. at 339-40, 345. The survivors argued that the recreational use statute did not apply because the bayou was a navigable waterway owned by the State, not the authority, and ultimately under the State's control. The court of appeals rejected as inconsistent the argument that the authority could be the relevant premises owner for purposes of the Tort Claims Act but not for purposes of the recreational use statute. Id. at 340.

In this case, the court of appeals has taken a position similar to the argument rejected in Guadalupe-Blanco River Authority. The court here recognizes SFA as the owner of the defective premises for purposes of waiver under the Tort Claims Act, but redefines the premises for purposes of the recreational use statute. 202 S.W.3d at 175. This conflict is sufficient to invoke our jurisdiction. See Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 689 (Tex.2003) (concluding that one court need not expressly disavow the other court's decision for conflicts jurisdiction to exist). We turn then to the merits of this appeal.

III

The Tort Claims Act generally waives the state's immunity from suit for certain tort claims involving automobiles, premises defects, or the condition or use of property. See TEX. CIV. PRAC. & REM.CODE §§ 101.001(3)(A)-(B), 101.021, 101.022, 101.025; County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002). Even under these circumstances, however, the Act preserves immunity for discretionary decisions under the "discretionary powers" exception to the waiver. TEX. CIV. PRAC. & REM.CODE § 101.056. The exception's purpose is to avoid judicial review or interference with those policy decisions committed to the other branches of government. State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979). The provision generally preserves immunity not only for the state's public policy decisions, but also for the state's failure to act, when no particular action is required by law. See TEX. CIV. PRAC. & REM.CODE § 101.056; see also State v. San Miguel, 2 S.W.3d 249, 250-51 (Tex.1999).

When the government in the exercise of its discretion decides to act, however, a distinction is drawn between the negligent formulation of policy, for which sovereign immunity is preserved, and the negligent implementation of policy, for which immunity is waived. See Terrell, 588 S.W.2d at 788; see also City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995). This determination is a question of law. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999).

The court of appeals concluded that SFA's decision to irrigate its campus was a policy decision for which immunity was preserved, but that Flynn's complaint about SFA's operation of the irrigation system over the trail during peak periods of public use was the negligent implementation of that policy. 202 S.W.3d at 176. SFA argues, however, that it retained immunity because the design of its irrigation system, including the placement of sprinkler heads, the force of the water, and the pattern of the spray were all discretionary decisions, involving the design of a public work. SFA equates its irrigation system to the design of a public highway and its safety features, which have been construed to be policy formulation rather than implementation. See State of Texas v. Miguel, 2 S.W.3d 249, 251 (Tex.1999).

We have more than one test "for determining when questioned conduct involves a protected `discretionary' determination." 19 WILLIAM V. DORSANEO III, TEXAS LITIGATION GUIDE § 293.12[7] (2007). One such test distinguishes between policy-level decisions and operational-level decisions. See, e.g., Terrell, 588 S.W.2d at 788. Under this test, one court has observed that the decision to release water from a spillway constitutes policy formulation for which the water district is immune, but that the subordinate decision of determining the volume of the outflow is policy implementation for which the district is not immune. Bennett v. Tarrant County Water Control & Improvement Dist. No. 1, 894 S.W.2d 441, 452 (Tex.App.-Fort Worth 1995, writ denied). Another test distinguishes the design of public works, for which there is immunity, from their maintenance, for which there is not immunity. See, e.g., County of Cameron, 80 S.W.3d at 558. Thus, while the government is not liable for designing a bridge without lighting, it may be liable for failing to maintain the lighting on a bridge designed to be illuminated. Compare Tarrant County Water Control v. Crossland, 781 S.W.2d 427, 433 (Tex.App.-Fort Worth 1989, writ denied), with County of Cameron, 80 S.W.3d at 558.

The court of appeals correctly concluded that the decisions here concerning when and where the water was to spray were operational- or maintenance-level decisions, rather than policy formulation. 202 S.W.3d at 176. Thus, the acts that allegedly caused Flynn's injury fall outside the scope of the discretionary powers exception.

IV

A

SFA also argues that Flynn's present claim is barred by the recreational use statute. See TEX. CIV. PRAC. & REM.CODE §§ 75.001-.004. The recreational use statute recognizes that landowners or occupiers, who open their property to the public for recreational purposes, provide a public benefit. To encourage this...

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