the City of Austin v. Jennifer Frame, Individually, and as Personal Representative of the Estate of John William Griffith Greg Griffith Cheryl Burris And Diana Pulido

ACCEPTED 03-15-00292-CV 6671739 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/26/2015 9:51:30 PM JEFFREY D. KYLE CLERK No. 03-15-00292-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD JUDICIAL DISTRICT OF TEXAS 8/26/2015 9:51:30 PM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk CITY OF AUSTIN, Defendant – Appellant, V. JENNIFER FRAME, ET AL., Plaintiffs – Appellees. APPELLEES’ BRIEF Appeal from the 98th Judicial District Court of Travis County, Texas Cause No. D-1-GN-14-004391 Sean E. Breen Mike Davis State Bar No. 00783715 State Bar No. 05549500 sbreen@howrybreen.com mdavis@slackdavis.com HOWRY BREEN & HERMAN, LLP SLACK & DAVIS, L.L.P. 1900 Pearl Street 2705 Bee Caves Road, Suite 220 Austin, Texas 78705-5408 Austin, Texas 78746 Tel. (512) 474-7300 Tel. (512) 795-8686 Fax (512) 474-8557 Fax (512) 795-8787 Attorney for Appellees Jennifer Frame, Attorney for Appellee Diana Pulido Greg Griffith, and Cheryl Burris  TABLE OF CONTENTS Index of Authorities ................................................................................................. iii Statement of the Case.................................................................................................1 Statement Regarding Oral Argument ........................................................................2 Issue Presented...........................................................................................................3 Statement of Facts......................................................................................................4 I. Colonel Griffith was killed and Ms. Pulido was injured while they were using the City-owned and operated Lady Bird Lake Hike & Bike Trail.........................................................................4 II. Because there were many previous incidents at the same location on the trail, the City had identified it as a safety hazard. ...................................................................................................4 III. The City’s auditor concluded the City’s delay in addressing the identified safety hazard on the Hike & Bike Trail was contrary to the City’s policy..................................................................6 Summary of Argument ..............................................................................................8 Arguments and Authorities ........................................................................................9 I. Legal standards......................................................................................9 II. Appellees met their burden to allege facts establishing the trial court’s subject-matter jurisdiction. ..............................................10 A. The factual allegations in Appellees’ first amended petition clearly fall within policy-implementation waiver of governmental immunity............................................10 B. The City’s attempt to plead ignorance of the policies at issue is disingenuous.............................................................11 III. The trial court’s denial of the City’s plea to the jurisdiction was correct because the City failed to affirmatively and conclusively negate Appellees’ basis for jurisdiction.........................16 A. An entity’s governmental immunity is waived for harm caused by the failure of policy implementation. .............16 B. The City itself concluded there was a failure of policy implementation..........................................................................18 C. The conclusion reached by the City is consistent with -i-  the findings of other Texas appellate courts. ............................20 D. The City’s attempt to characterize its failure to eliminate or control a safety hazard as a discretionary policy-formulation decision misunderstands Texas law. ............................................................................................22 E. The City’s insistence that this is a case about roadway design does not make it so, and therefore the City may not raise the defense of governmental immunity......................24 IV. The trial court’s decision was also correct because, at a minimum, fact issues exist as to whether the City made a policy-formulation decision and simply failed to implement it...........................................................................................................25 Prayer .......................................................................................................................27 Certificate of Compliance ........................................................................................29 Certificate of Service ...............................................................................................30 - ii -  INDEX OF AUTHORITIES Bellnoa v. City of Austin, 894 S.W.2d 821 (Tex. App.—Austin 1995, writ denied) ..........................................................................................................15 Bennett v. Tarrant Cnty. Water Ctrl. Dist. No. 1, 894 S.W.2d 441 (Tex. App.—Fort Worth 1995, writ denied)........................................................23 City of Austin v. Rangel, 184 S.W.3d 377 (Tex. App.—Austin 2006, no pet.) ...................................................................................................................9 City of Granite Shoals v. Winder, 280 S.W.3d 550 (Tex. App.— Austin 2009, pet. denied).......................................................................... 9, 16, 26 City of Midland v. Sullivan, 33 S.W.3d 1 (Tex. App.—El Paso 2000, pet. dism’d) ............................................................................................. 10, 20, 21 City of Paris v. Floyd, 150 S.W.3d 224 (Tex. App.—Texarkana 2004, no pet.) ...................................................................................................................9 Fountain v. Burklund, No. 03-01-00380-CV, 2001 Tex. App. LEXIS 8252 (Tex. App.—Austin Dec. 13, 2001, pet. denied)........................................13 K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (Tex. 2000) ........................................27 San Patricio Mun. Water Dist. v. City of Corpus Christi, No. 13-10- 00272-CV, 2011 Tex. App. LEXIS 262 (Tex. App.—Corpus Christi Jan. 13, 2011, pet. denied) .......................................................................27 State Dep’t of Highways & Pub. Transp. v. King, 808 S.W.2d 465 (Tex. 1991)...........................................................................................................15 State v. Lueck, 290 S.W.3d 876 (Tex. 2009) .......................................................9, 11 Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653 (Tex. 2007) ............ passim Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ......................................................................................................................9 Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ................................................................................................... 9, 10, 16, 26 Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999) .......................................9 - iii - Tex. Dep't of Transp. v. Hathorn, No. 03-11-00011-CV, 2012 Tex. App. LEXIS 5906 (Tex. App.—Austin July 19, 2012, no pet.)..........................25 Wenzel v. City of New Braunfels, 852 S.W.2d 97 (Tex. App.—Austin 1993, no writ).......................................................................................................25 Zambory v. City of Dallas, 838 S.W.2d 580 (Tex. App.—Dallas 1992, writ denied), disapproved on other grounds, City of Grapevine v. Sipes, 195 S.W.3d 689, 695 n.5 (Tex. 2006) .................................... 10, 14, 20, 21 - iv -  STATEMENT OF THE CASE Nature of the case: Plaintiffs – Appellees Jennifer Frame, individually and as personal representative of the Estate of Colonel John Griffith, Greg Griffith, Cheryl Burris, and Diana Pulido brought negligence claims against Defendant Joseph Rosales and Defendant – Appellant City of Austin for wrongful death and personal injuries that occurred when Mr. Rosales struck Colonel Griffith and Ms. Pulido while both were using the City’s Lady Bird Lake Hike & Bike Trail on May 7, 2012. Course of proceedings: Appellees filed suit against Mr. Rosales for negligence on November 12, 2012.1 Appellees filed their first amended petition on May 7, 2014, and asserted negligence claims against the City. 2 The City asserted a plea to the jurisdiction in its original answer,3 and a hearing on the City’s plea was held on April 13, 2015, before Judge Amy Clark Meachum. Trial court disposition: Judge Meachum denied the City’s plea to the jurisdiction on April 27, 2015. 4 The City filed its notice of appeal on May 8, 2015.5 Mr. Rosales is not a party to this appeal. 1 See CR 3. 2 See CR 11. 3 CR 22. 4 CR 66. 5 CR 70. -1-  STATEMENT REGARDING ORAL ARGUMENT Appellees agree with the City that oral argument is not necessary for this case. It presents no new or novel issues, and may be decided under clear Texas law. -2-  ISSUE PRESENTED A governmental entity like a city possesses immunity for the formulation of policy, but immunity is waived for injuries caused by a city’s negligent failure to implement policy. Further, a city’s plea to the jurisdiction may only be granted if the pleadings and jurisdictional evidence affirmatively and conclusively negate the existence of jurisdiction. In this case, Appellees presented, among other evidence, a report from the City’s auditor that found that, contrary to specific Parks & Recreation Department policy, the City “delay[ed] in addressing identified safety hazards” on the Lady Bird Lake Hike & Bike Trail at the place where Colonel Griffith was killed and Ms. Pulido was injured.6 Did the trial court err in denying the City’s plea to the jurisdiction when it concluded the City failed to affirmatively and conclusively negate the existence of jurisdiction? 6 CR 60. -3-  STATEMENT OF FACTS I. Colonel Griffith was killed and Ms. Pulido was injured while they were using the City-owned and operated Lady Bird Lake Hike & Bike Trail. On May 7, 2012, at approximately 5:15 pm, Colonel Griffith was walking with his daughter along the Lady Bird Lake Hike & Bike Trail (“Hike & Bike Trail”) on the south side of the 900 block of West César Chávez Street.7 A vehicle driven by Mr. Rosales entered the curve in the road under the Lamar Boulevard overpass, jumped the curb, and careened down the trail. Debris, a road sign, and Mr. Rosales’s vehicle struck Colonel Griffith and another pedestrian, Ms. Pulido.8 Both Colonel Griffith and Ms. Pulido were severely injured; Colonel Griffith died from his injuries later that night.9 II. Because there were many previous incidents at the same location on the trail, the City had identified it as a safety hazard. The City had long ago identified the safety hazard presented by the section of the Hike & Bike Trail where Colonel Griffith and Ms. Pulido were struck. In fact, it had been the site of at least 13 separate collisions in the 15 years preceding this incident.10 In 1999, then-Governor Bush, on his morning jog, was forced to take 7 CR 13–14. 8 CR 14. 9 CR 14. 10 CR 15–16. -4- cover behind a bridge support after a trailer overturned and dumped debris across the trail.11 In a very similar incident in 2006, this danger was exposed again when an inattentive driver jumped the curb heading eastbound on West César Chávez Street and traveled 200 feet down the Hike & Bike Trail before coming to a stop after hitting three trees.12 On at least three occasions before Colonel Griffith and Ms. Pulido were struck, concerned citizens contacted the City to request the construction or coordination of safety measures for the express purpose of protecting pedestrians on the Hike & Bike Trail.13 In response, members of the City’s Parks and Recreation Department (the Department) recognized the dangerous condition of the Hike & Bike Trail did not meet the Department’s safety standards.14 Less than two months before this incident, a Department division manager noted that “[safety] concerns kept coming up” about the section of the Hike & Bike Trail where Colonel Griffith and Ms. Pulido were struck.15 11 See CR 15–16. 12 See generally CR 45–53. 13 See CR 16. 14 See CR 16. 15 See CR 16. -5- III. The City’s auditor concluded the City’s delay in addressing the identified safety hazard on the Hike & Bike Trail was contrary to the City’s policy. After this incident occurred, a Parks and Recreation Department Patron Safety Audit conducted in February 2014 by the City auditor’s office found that “[p]er [Department] policies, when a hazard is identified, it is either corrected by eliminating the cause of the hazard or is effectively controlled, such as controlling or limiting access to a specific area.”16 In other words, the City’s Department had a specific policy in place to eliminate the cause of identified safety hazards or to control the hazards by limiting access to them.17 The City auditor’s report noted, however, that “hazards identified are not monitored through correction.” 18 In support of this conclusion, the report specifically cited the May 7, 2012 incident in which Colonel Griffith was killed and Ms. Pulido was injured as an example of the Department’s delay in addressing an 19 identified safety hazard. The City’s own audit concluded that “[w]hile [Department] management has developed and approved policies aimed at identifying and managing hazards related to patron safety, [Department] executive management has not allocated the appropriate skills, structure, and resources to 16 CR 60. 17 See CR 60; see also CR 17 (citing City auditor’s report) 18 CR 56. 19 CR 60. -6- support the implementation of patron safety policies.”20 20 See CR 56 (emphasis added). -7-  SUMMARY OF ARGUMENT Years before Colonel Griffith was killed and Ms. Pulido was injured, the City had identified the portion of the Hike & Bike Trail that approaches West César Chávez Street under Lamar Boulevard as a safety hazard. Despite a policy of eliminating or controlling identified safety hazards, the City’s Parks and Recreation Department delayed in addressing this known safety hazard. A February 2014 report from the City auditor’s office concluded the City had failed to implement Department policies regarding the elimination or control of safety hazards, specifically citing the incident forming the basis for this case as an example. Appellees affirmatively established the trial court’s subject-matter jurisdiction in both their pleadings and the jurisdictional evidence they submitted through claims that their harm was caused by the City’s failure to implement its own policy for which no governmental immunity exists. After Appellees carried their burden, the trial court correctly denied the City’s plea to the jurisdiction because the City failed to carry its burden to affirmatively and conclusively negate the existence of jurisdiction. In doing so, the trial court recognized the existence of disputed questions of fact that were both material to the court’s subject-matter jurisdiction and intertwined with the merits of Appellees’ claims. -8-  ARGUMENTS AND AUTHORITIES I. Legal standards A plea to the jurisdiction is a challenge to a court’s subject-matter jurisdiction.21 The burden to demonstrate jurisdiction in the first instance is on the plaintiff, which is met by alleging facts affirmatively establishing the trial court’s subject-matter jurisdiction.22 All of a plaintiff’s factual allegations are accepted as true.23 When evaluating a plaintiff’s pleadings, a trial court looks to the plaintiff’s intent and construes pleadings establishing the trial court’s jurisdiction in the plaintiff’s favor.24 “Only if the pleadings and jurisdictional evidence affirmatively and conclusively negate the existence of jurisdiction should a plea to the jurisdiction be granted.”25 Disputed evidence of jurisdictional facts may require resolution by the fact finder and prevent a decision on a plea to the jurisdiction.26 A denial of a governmental entity’s plea to the jurisdiction is reviewed de 21 See, e.g., Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999). 22 See, e.g., State v. Lueck, 290 S.W.3d 876, 884 (Tex. 2009). 23 City of Austin v. Rangel, 184 S.W.3d 377, 381 (Tex. App.—Austin 2006, no pet.). 24 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). 25 City of Granite Shoals v. Winder, 280 S.W.3d 550, 555 (Tex. App.—Austin 2009, pet. denied). 26 See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Winder, 280 S.W.3d at 555; City of Paris v. Floyd, 150 S.W.3d 224, 226 (Tex. App.—Texarkana 2004, no pet.). -9- novo.27 II. Appellees met their burden to allege facts establishing the trial court’s subject-matter jurisdiction. As discussed in more detail below, a governmental entity’s formulation of policy is distinct from the entity’s implementation of that policy.28 The parties agree that a governmental entity retains immunity for deciding on a policy in the first instance, but does not enjoy such immunity for action (or a lack of action) taken to implement that policy.29 In other words, a governmental entity is not immune if the implementation rule applies. The trial court correctly recognized this as a policy- implementation case and properly denied the City’s plea to the jurisdiction.30 A. The factual allegations in Appellees’ first amended petition clearly fall within policy-implementation waiver of governmental immunity. In their first amended petition, Appellees alleged their harm was caused by the City’s failure to implement an existing policy:31 27 See Miranda, 133 S.W.3d at 228. 28 See Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007); City of Midland v. Sullivan, 33 S.W.3d 1, 15 (Tex. App.—El Paso 2000, pet. dism’d); Zambory v. City of Dallas, 838 S.W.2d 580, 582 (Tex. App.—Dallas 1992, writ denied), disapproved on other grounds, City of Grapevine v. Sipes, 195 S.W.3d 689, 695 n.5 (Tex. 2006). 29 Compare Appellant’s Brief, at 14 with CR 37 (Appellees’ response to the City’s plea to the jurisdiction); see also Flynn, 228 S.W.3d at 657; Sullivan, 33 S.W.3d at 15; Zambory, 838 S.W.2d at 582. 30 CR 66. 31 See CR 17. - 10 -  and implement a policy ormaintenan.ce and construction of corrections and safeguards to protect patrons Was a proximate cauSt Of this. ingidui L. This uri/S. irbtvi an isciagiu.(1 invidr,...m. A failure to implement policies has plagued the City of Austin Parks and Recreation Department. In fact, the incident made the basis of ihis lawsuit was reccnily cited lay the City Auditor as one example of delay's by the PARD in addreming ikkraiEcd xd fc•ty hazards. I .Addressing iri nti cd surciy hazards is not discretionary - it is mandatory and ministerial. The report found that PARD is riot managing safety hazards effectively and there is limited assurance that hazards arc promptly irientiiied. and corrected_ The failure of the Cily to act on clear policy in place ED protect people such as the Plaintiffs was negligence, gross negligence and a proximate cause of the devastating irtj µr here and is actionable. The acts and omissions in this miter and over the course of the previous 13 similar These allegations (the City’s failure to implement a policy led to the Appellees’ harm) state a cognizable claim under Texas law, which is not barred by governmental immunity. 32 Appellees therefore met their burden to affirmatively establish the subject-matter jurisdiction of the trial court through their pleadings.33 B. The City’s attempt to plead ignorance of the policies at issue is disingenuous. In an attempt to show Appellees have not met their pleading burden, the City argues Appellees have failed to sufficiently identify a policy imposing on the City a 32 Flynn, 228 S.W.3d at 658. 33 Lueck, 290 S.W.3d at 884. - 11 - duty to act. 34 In essence, the City argues that Appellees are relying upon a nonexistent policy. This is incorrect. First, the City accuses Appellees of alleging a broad fix-all-hazards policy that is not sufficiently specific to impose a ministerial burden on the City to act.35 But Appellees are not pointing to a policy that requires the elimination or control of all unidentified safety hazards throughout Department properties—the policy upon which Appellees rely only addresses hazards the City has previously identified. Here, the pleadings and jurisdictional evidence show the City had formulated a policy, identified a specific safety hazard pursuant to that policy, but failed to take the necessary steps to implement that policy and thereby eliminate or control the safety hazard. Second, the City asserts that, even if Appellees are attempting to identify a specific policy that imposes ministerial duties, they have failed to do so.36 The City lists in its brief purported requirements for more information regarding the policy at issue: the policy’s name, the date it was issued, the period it covers, the policymaker, etc.37 The City has waived this argument because it is raising it for the first time on 34 Appellant’s Brief, 18–21. 35 Appellant’s Brief, at 14. 36 Appellant’s Brief, at 18–19. 37 Appellant’s Brief, at 4, 19, 20. - 12 - appeal—nor did it specially except to Appellees’ pleadings in the trial court as insufficiently specific to identify the City policies at issue.38 Further, even if the City had not waived this argument, it cites no authority in support of its position. Third and finally, the City auditor’s report, which was referenced in 39 Appellees’ first amended petition, specifically described the policies that Appellees allege were violated, thereby creating the unsafe environment in which Colonel Griffith was killed and Ms. Pulido was injured:40 3. Hazard correction As indicated above, after detection, significant current and potential hazards should be prevented, corrected, or controlled in a timely manner. Per PAR) policies, when a hazard is identified, it is either corrected by eliminating the cause of the hazard at the source or is effectively controlled, such as controlling or limiting access to a specific area. However, as shown in Exhibit 2, currently there is no mechanism to ensure that once identified, hazards are actually corrected. EXHIBIT 2 implementation of Patron Safety Hazard Correction Policies PARE) Policli'Retittirement implemented? OCA Observations The Safety Officer should conduct 1V is We found no evidence that routine follow-up inspections to ensure follow-up is conducted corrective action is taken The Safety Office is responsible for No Documentation needed to evaluate monitoring the implementation of the compliance with the safety program safety program to ensure compliance is not maintained in a central location SOURCE: PARD policies and OCA observations during the course of this audit, September-December 2013 38 See, e.g., Fountain v. Burklund, No. 03-01-00380-CV, 2001 Tex. App. LEXIS 8252, at *10 (Tex. App.—Austin Dec. 13, 2001, pet. denied) (failure to file special exceptions to defects in pleadings waives complaint on appeal). 39 CR 17 n.1. 40 CR 60. - 13 -  Over the course of our audit, wefound various instances of delays in addressing identified safety hazards. For example: ▪ The Annual Playground Conditions Overview Report from November 2012 identified eight playground locations with non-compliant safety hazards that, according to priority ratings established by the International Playground Safety Institute, are "non-compliant safety concerns that may result in permanent disability, loss of life or body part, and should be corrected immediately." As of December 2013, only four of the eight playscapes have had the hazards mitigated. Although the implementation of a new piayscape is assigned to the Capital improvement Planning Division, there appears to be disagreement between this division and the Maintenance Division over what PARD division is responsible for mitigating the existing hazards. ■ A tree fell and injured a park patron on the Town Lake Trail in September 2013; PARD had identified the tree for removal a month prior. ■ The Occupational Health and Safety Coordinator asserted that he has identified safety hazards at multiple PARD locations, but due to disagreement with PARD division managers over the severity of the hazard, action was not taken to mitigate the hazard. ■ One person was killed, and another seriously injured, when a car jumped the curb on the Town Lake Trail in May 2012. A temporary guardrail was installed at the location and remains today. It is unclear when a decision will be made regarding safety at the location. In 1999, the Governor was injured at the same location, This description of the Department’s policies referenced by the City auditor’s report was sufficiently specific for Sara Hensley, director of the Department, to confirm that she agreed with the report’s recommendations.41 In fact, Ms. Hensley’s adoption of the City auditor’s findings as the Department’s director should effectively dispose of the City’s argument that the policy relied upon by Appellees is merely an “employee report.”42 It is, at best, misleading for the City to state that the Department’s response to the City auditor’s report does not mention the accident or the accident site.43 As the 41 CR 64. 42 Appellant’s Brief, at 21 (citing Zambory, 838 S.W.2d at 538). 43 Appellant’s Brief, at 5, 14. - 14 - City well knows—and as shown in the screenshot above—not only does the City auditor’s report itself specifically mention the accident and the accident site,44 but the response from Ms. Hensley, the Department’s director, acknowledges that she reviewed the report’s findings and recommendations and agreed with them.45 Further, the City’s reliance on Bellnoa v. City of Austin is misplaced.46 In Bellnoa, this Court concluded that the two documents relied upon by the plaintiffs imposed no duty on the City because (i) one was specifically found not to be mandatory by the Texas Supreme Court four years earlier, 47 and (ii) the other explicitly called itself a set of “guidelines.”48 In contrast, the City auditor’s office in this case referred to the policies cited in its February 2014 report as having “requirements for hazard identification, data analysis, and hazard correction and monitoring.”49 This characterization of the Department’s policies was adopted by Ms. Hensley, the Department’s director.50 44 CR 60. 45 CR 64. 46 Appellant’s Brief, at 19–20 (citing Bellnoa v. City of Austin, 894 S.W.2d 821, 824 (Tex. App.— Austin 1995, writ denied)). 47 Bellnoa, 894 S.W.2d at 824 (citing State Dep’t of Highways & Pub. Transp. v. King, 808 S.W.2d 465, 466 (Tex. 1991)). 48 Id. at 824–25. 49 CR 56 (emphasis added). 50 CR 64. - 15 -  In sum, Appellees met their burden to affirmatively demonstrate the trial court’s jurisdiction because they pleaded claims for injuries caused by the City’s negligent failure to implement specific Department policies and presented jurisdictional evidence of the same. The City’s attempt to feign ignorance of the policies at issue is not supported by Appellees’ pleadings or the jurisdictional evidence presented to the trial court below. III. The trial court’s denial of the City’s plea to the jurisdiction was correct because the City failed to affirmatively and conclusively negate Appellees’ basis for jurisdiction. Once a plaintiff has alleged facts that affirmatively establish the trial court’s subject-matter jurisdiction over a claim, the burden shifts to the entity asserting governmental immunity to affirmatively and conclusively negate the existence of jurisdiction.51 In this sense, the evaluation of a governmental entity’s plea to the jurisdiction is not unlike consideration of a traditional motion for summary judgment under Rule 166a(c) of the Texas Rules of Civil Procedure.52 A. An entity’s governmental immunity is waived for harm caused by the failure of policy implementation. In response to Appellees’ proper pleading of a claim for which the City possesses no governmental immunity, the City contends that the action (or inaction) 51 Winder, 280 S.W.3d at 555. 52 Miranda, 133 S.W.3d at 228; Winder, 280 S.W.3d at 555. - 16 - at issue is one of policy formulation, not policy implementation, and therefore the City’s governmental immunity remains intact. This Court should reject this contention for the reasons set forth below. The Texas Supreme Court has recognized there are multiple tests under Texas law to determine whether a governmental entity’s actions constitute the formation of policy or the implementation of policy: (1) the policy/operational test, which compares policy decisions to subordinate decisions, and (2) the design/maintenance test, which protects an entity’s initial design decisions but not the decisions made once the design has been installed.53 The determination of whether a governmental entity’s actions constitute policy formulation or policy implementation is a question of law.54 As an example, in Stephen F. Austin State University v. Flynn, a woman was knocked off of her bicycle by an oscillating sprinkler while riding along a path on the university’s campus.55 The university argued that the design of its irrigation system (i.e., where to place sprinklers and how to run them) was a discretionary decision for which it was immune. 56 The Texas Supreme Court rejected that 53 Flynn, 228 S.W.3d at 657. 54 Id. at 657. 55 Id. at 655. 56 Id. at 657. - 17 - argument, finding that the decisions on when and where to spray water were operational- or maintenance-level decisions for which the university was not immune.57 In this case, the policy decision at issue is the Department’s stated policy of eliminating or controlling identified hazards.58 Appellees have alleged and provided evidence that the City identified the section of the Hike & Bike Trail that passes under Lamar Boulevard as a safety hazard for its users and that the City’s failure to eliminate or control this safety hazard was a negligent failure to implement the City’s stated policy.59 B. The City itself concluded there was a failure of policy implementation. The City itself reached the same conclusion in the City auditor’s report from February 2014:60 WHAT WE FOUND While FARO management has developed and approved policies wrned at identifying and rriariaging hazards related to patron safety.PARD ekecutive management has not allocated the appropriate skills, structures, and resources to support the implementation of its patron safety 57 Flynn, 228 S.W.3d at 658. 58 See CR 60. 59 CR 17, 60. 60 CR 56 (first image), 60 (second image). - 18 -  3. Hazard correction As indicated above, after detection, significant current and potential hazards should be prevented, corrected, or controlled in a timely manner. Per PARD policies, when a hazard is identified, it is either corrected by eliminating the cause oft he hazard at the source or is effectively controlled, such as controlling or limi in access to a specific area However, as shown in Exhibit 2, currefaly &lore is no mechanism 10 ensure that once identified, hazards are actually corrected, EXHIBIT 2 Implementation of Patron Safety Hazard Correction Policies ............................. I+e Safety Of ricer siroukl co Flo Li a round ria , .c1 c that routing folly p inspections to ensure follow-up is conducted corrective action litaken The Safety Office is responsible for Documentation needed to evaluate monitoring the implementatioof the compliance with the safety program safety program to ensure co rn pilance : is not maintained in a central location SOURCE: PARE) poficies.nd OCA observations during the course of this audit, September-December 2.013 Over the course of our audit, we found various ins-tan of delays in addressing identified safety hazards. For example. The report even used the language approved by the Texas Supreme Court in Flynn that there was a failure of “implementation.” It is difficult to imagine more dispositive evidence that an entity’s action or inaction was the result of policy implementation than a report from the entity’s audit office stating “executive management has not allocated the appropriate skills, structures and resources to support the implementation of its patron safety policies.”61 This is direct and compelling evidence from the City itself that Colonel Griffith’s death and Ms. Pulido’s injuries resulted from the City’s failure to implement a policy that was in place to prevent just such an occurrence. Thus, the 61 CR 56 (emphasis added). - 19 - trial court correctly denied the City’s plea to the jurisdiction. C. The conclusion reached by the City is consistent with the findings of other Texas appellate courts. The City’s own characterization of its actions (a failure to implement policy) is actionable and Appellees’ ability to assert their claims is supported by the decisions of other Texas appellate courts concluding that a city department’s failure to take action regarding a decision already reached constitutes the negligent implementation of a discretionary decision for which there is no governmental immunity.62 In Zambory v. City of Dallas, a bicyclist was struck at an intersection that did not have a traffic signal. 63 Before the incident, concerned citizens had repeatedly contacted the city’s transportation department about the lack of a signal, spoken at city council meetings, and warned the city that signs at the intersection were inadequate.64 A day before the bicyclist was injured, a Dallas city council member stated on the record that a temporary signal needed to be installed, but no motion was made and no vote was taken.65 The Dallas court of appeals reversed the trial court’s grant of summary judgment on immunity grounds, finding that a fact 62 See City of Midland v. Sullivan, 33 S.W.3d 1, 15 (Tex. App.—El Paso 2000, pet. dism’d); Zambory, 838 S.W.2d at 582. 63 Zambory, 838 S.W.2d at 581–82. 64 Id. at 583. 65 Id. at 581–82. - 20 - issue existed on whether the city had formulated policy by deciding that the intersection was dangerous and that a temporary signal was necessary, but had simply failed to implement it.66 In City of Midland v. Sullivan, a student was struck in a crosswalk after a school zone sign did not activate in time for early-morning classes.67 The El Paso court of appeals held that the city’s initial decision to establish a school zone and its hours of operation were discretionary, but the city’s failure to keep the parameters of the school zone accurate and current (like the school zone sign) was a negligent implementation of the city’s own policy and prior determination.68 Just as in Zambory and Sullivan—which were presented in Appellees’ briefing in the trial court below 69 but not distinguished or even discussed in the City’s appellate brief—the City in this case had: • an existing policy (to eliminate or control identified safety hazards); • identified a safety hazard (the danger posed to users of the Hike & Bike Trail near the intersection of West César Chávez Street and Lamar Boulevard); and • negligently failed to implement its own policy (delayed in addressing identified safety hazards). 66 See Id. at 583. 67 See Sullivan, 33 S.W.3d at 5. 68 See id. at 15. 69 CR 38–40. - 21 - Under Flynn, Zambory, and Sullivan, these actions establish a waiver of the City’s governmental immunity for Colonel Griffith’s death and Ms. Pulido’s injuries. D. The City’s attempt to characterize its failure to eliminate or control a safety hazard as a discretionary policy-formulation decision misunderstands Texas law. Retreating somewhat, the City attempts to distinguish Flynn by claiming no policy-formulation decision was ever made and points to a sentence in the City auditor’s report that says: “It is unclear when a decision will be made regarding safety at that location.”70 The City misunderstands Appellees’ arguments and the contents of its own auditor’s report. As noted earlier, the policy-formulation decision at issue is the Department’s policy of eliminating or controlling identified safety hazards, and the policy- implementation decision (or lack thereof) is how to go about eliminating or controlling the identified hazard. 71 The City’s failure to eliminate or control an identified safety hazard referenced in the City auditor’s report (“It is unclear when a decision will be made regarding safety at that location.”) was a policy- implementation decision, not the absence of a policy-formulation decision. The 70 Appellant’s Brief, at 13 (citing CR 17, 60). 71 See CR 38 (“The Policy decision at issue is the Austin Parks and Recreation Department’s stated policy of correcting or controlling identified hazards. The failure to make the section of the Hike & Bike Trail that passes under Lamar Boulevard safe for its users, after the hazard was identified, was a negligent failure to implement stated policy.”) - 22 - Texas Supreme Court reached the same conclusion in Flynn: the university’s decision to irrigate the campus was one of policy formulation, and its decision to operate the irrigation system during peak periods of public use was one of policy implementation.72 The City next claims that, even if a policy-formulation decision occurred, the follow-up decision not to implement safety measures was another discretionary one for which the City is still immune: “If addressing safety hazards is a discretionary policy decision, then so is determining the best way to go about doing so.”73 This argument was implicitly rejected in Flynn.74 There, the Supreme Court approved the reasoning of the Fort Worth court of appeals in Bennett v. Tarrant County Water Control & Improvement Dist. No. 1 when it stated 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.”75 In other words, simply because an action involves choice does not make it “discretionary” so as to preserve governmental immunity. 72 Flynn, 228 S.W.3d at 657–58. 73 Appellant’s Brief, at 22. 74 Flynn, 228 S.W.3d at 657. 75 Id. at 657 (citing Bennett, 894 S.W.2d 441, 452 (Tex. App.—Fort Worth 1995, writ denied)). - 23 -  Under Flynn, the City’s decision on how to eliminate or control an identified safety hazard (where the Lady Bird Lake Hike & Bike trail approaches West César Chávez Street under the Lamar Boulevard overpass) is no different than a decision on the volume of water to release through a spillway: both constitute the implementation of an earlier policy-formulation decision. E. The City’s insistence that this is a case about roadway design does not make it so, and therefore the City may not raise the defense of governmental immunity. This case is not pleaded as a roadway-design case nor can the City amend Appellees’ pleadings to make it so. As demonstrated above, both the pleadings and evidence presented by Appellees complain of the City’s failure to implement stated policies of the Parks and Recreation Department, not the design of West César Chávez Street. Despite the factual allegations in Appellees’ pleadings and the arguments Appellees made in the trial court, the City continues to attempt to amend Appellees’ pleadings by insisting that Appellees are actually complaining of roadway design and, therefore, the City is immune for such decisions. The cases cited by the City in an attempt to characterize Appellees’ cause of action as a complaint regarding roadway design are inapplicable and distinguishable. In Texas Department of Transportation v. Hathorn, for example, this Court granted a plea to the jurisdiction after concluding the plaintiffs’ complaints were “based - 24 - entirely on TxDOT’s roadway design.” 76 This decision was largely because the plaintiffs’ expert witnesses had offered opinions critical of the roadway’s design.77 No such evidence exists in this case. In Wenzel v. City of New Braunfels, the city’s plea to the jurisdiction was granted because this Court concluded the plaintiffs were challenging the city’s decision to regulate traffic near the fairgrounds. 78 There is no mention of any allegations in the Wenzel opinion that the city had made a decision to implement traffic control or safety measures and had failed to do so, as there are in this case.79 In sum, the City’s arguments and evidence are insufficient to persuade this Court that Appellees’ harm was caused by a discretionary decision like policy formulation, much less affirmatively and conclusively establish such a proposition. For this reason, the trial court correctly denied the City’s plea to the jurisdiction. IV. The trial court’s decision was also correct because, at a minimum, fact issues exist as to whether the City made a policy-formulation decision and simply failed to implement it. Even if a city asserts and supports with evidence that the trial court lacks subject-matter jurisdiction, a plea to the jurisdiction should not be granted if disputed 76 No. 03-11-00011-CV, 2012 Tex. App. LEXIS 5906, at *23 (Tex. App.—Austin July 19, 2012, no pet.). 77 Hathorn, 2012 Tex. App. LEXIS 5906, at *21–23. 78 Wenzel v. City of New Braunfels, 852 S.W.2d 97, 99–100 (Tex. App.—Austin 1993, no writ). 79 See CR 16–17. - 25 - material facts exist regarding the jurisdictional issue in question and that issue is intertwined with the merits of the case.80 This protects plaintiffs from being required to put on their entire case simply to establish subject-matter jurisdiction.81 A large portion of the City’s brief consists of allegations that are actually disputed material facts, such as its contention that there is no policy compelling the City to eliminate or control identified safety hazards exists.82 Or its argument that, even if such a policy did exist, the City had made no decision on what to do if a safety hazard was identified at the location where Colonel Griffith was killed and Ms. Pulido was injured.83 These disputed facts are material to both a waiver of governmental immunity (whether the harm to Appellees was caused by a failure of policy implementation, which, by definition, requires the existence of a “policy”) and the merits of Appellees’ case (whether the City is liable to Appellees for negligently failing to eliminate or control identified safety hazards). The trial court did not specify the basis for its decision to deny the City’s plea to the jurisdiction.84 In such a situation, an appellate court will affirm if any of the 80 Miranda, 133 S.W.3d at 228; Winder, 280 S.W.3d at 561–62. 81 Miranda, 133 S.W.3d at 228; Winder, 280 S.W.3d at 562. 82 Appellant’s Brief, at 4, 16, 18–21. 83 Appellant’s Brief, at 4, 10, 13, 16, 21–22. 84 CR 66. - 26 - grounds presented to the trial court are meritorious.85 Appellees specifically asserted in the trial court that disputed jurisdictional facts should bar the City’s plea to the jurisdiction.86 This ground was presented to the trial court, may have been relied on by the trial court in denying the City’s plea to the jurisdiction, and, therefore, may serve as basis for an order from this Court affirming the trial court’s decision.87 PRAYER On May 7, 2012, the day of the incident, the City’s Parks and Recreation Department had already identified the location on the Hike & Bike Trail where Colonel Griffith was killed and Ms. Pulido was injured as a safety hazard. This is not supposition by Appellees: according to the City auditor’s report, the City failed to “allocate[] the appropriate skills, structures, and resources to support implementation of its patron safety policies.” This was a failure of policy implementation under Texas law, which means the City may not hide behind governmental immunity. Plaintiffs – Appellees Jennifer Frame, individually and as personal 85 See San Patricio Mun. Water Dist. v. City of Corpus Christi, No. 13-10-00272-CV, 2011 Tex. App. LEXIS 262, at *8 (Tex. App.—Corpus Christi Jan. 13, 2011, pet. denied); see also K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (“Because the trial court did not specify the ground on which it [ruled], we will affirm the trial court’s ruling if any ground is meritorious.”). 86 See CR 17, 40–42. 87 See San Patricio Mun. Water Dist., 2011 Tex. App. LEXIS 262, at *8; Honeycutt, 24 S.W.3d at 360. - 27 - representative of the Estate of Colonel John William Griffith, Greg Griffith, Cheryl Burris, and Diana Pulido therefore respectfully request an order affirming the trial court’s decision to deny the City’s plea to the jurisdiction, and for such other and further relief to which they may be justly entitled. Dated: August 26, 2015 Respectfully submitted, HOWRY BREEN & HERMAN, LLP cl;.,-. _______________________________ Sean E. Breen State Bar No. 00783715 sbreen@howrybreen.com 1900 Pearl Street Austin, Texas 78705-5408 Tel. (512) 474-7300 Fax (512) 474-8557 Attorneys for Plaintiffs – Appellees Jennifer Frame, Greg Griffith, and Cheryl Burris Mike Davis State Bar No. 05549500 mdavis@slackdavis.com SLACK & DAVIS, L.L.P. 2705 Bee Caves Road, Suite 220 Austin, Texas 78746 Tel. (512) 795-8686 Fax (512) 795-8787 Attorneys for Plaintiff – Appellee Diana Pulido - 28 -  CERTIFICATE OF COMPLIANCE As required by Rule 9.4(e) of the Texas Rules of Appellate Procedure, I certify this is a computer-generated document created in Microsoft Word 2013, using 14-point typeface for all text, except for any footnotes, which are in 12-point typeface. As required by Rule 9.4(i)(3), I certify that this brief contains 4,688 words, not including the caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. In making this certificate of compliance, I am relying on the word count provided by c12 the software used to prepare this document. _______________________________ , , c,,. Sean E. Breen - 29 -  CERTIFICATE OF SERVICE I certify that a true and correct copy of this document was delivered on August 26, 2015, in compliance with Rules 9.5(b) of the Texas Rules of Appellate Procedure, to the parties listed and in the manner indicated below. Karen M. Kennard, City Attorney  Electronic service Meghan L. Riley, Chief, Litigation □ In person Chris Edwards, Assistant City □ Registered mail, return receipt requested Attorney □ Commercial delivery service chris.edwards@austintexas.gov □ Facsimile City of Austin-Law Department  Electronic mail P.O. Box 1546 Tel. (512) 974-2419 Fax (512) 974-1311 Attorneys for Defendant – Appellant cl ?,, c ,, . City of Austin _______________________________ Sean E. Breen - 30 -  No. 03-15-00292-CV IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS CITY OF AUSTIN, Defendant – Appellant, V. JENNIFER FRAME, ET AL., Plaintiffs – Appellees. APPELLEES’ APPENDIX Tab Description CR Range 1 Appellees’ first amended petition 11–21 Parks and Recreation Department Patron Safety Audit 2 54–65 conducted in February 2014 TAB 1  5/7/2014 10:19:24 AM Amalia Rodriguez-Mendoza District Clerk Travis County CAUSE NO. D-1-GN-12-003557 D-1-GN-12-003557 JENNIFER FRAME, INDIVIDUALLY, AND § IN THE DISTRICT COURT OF AS PERSONAL REPRESENTATIVE OF THE § ESTATE OF JOHN WILLIAM GRIFFITH, § GREG GRIFFITH, CHERYL BURRIS and §§ DIANA PULIDO § §§ vs. § TRAVIS COUNTY, TEXAS §§ THE CITY OF AUSTIN AND JOSEPH § LOUIS ROSALES §§ 53rd JUDICIAL DISTRICT PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, JENNIFER FRAME, Individually and as Personal Representative of the of John William Estate of William Griffith, Griffith, GREG GREG GRIFFITH, GRIFFITH, CHERYL CHERYL BURRIS and DIANA DIANA PULIDO PULIDO of Austin ("City") and Joseph Louis ("Plaintiffs") and file this Original Petition against The City of following: Rosales ("Rosales"), and in support thereof, would show the Court the following: DISCOVERY CONTROL PLAN Discovery shall shall be conducted under be conducted under Level Level 33 pursuant pursuant to to Rule Rule 190 190 of the Texas Texas Rules Rules of Civil Procedure. The damages Procedure. The damages to to the the parties parties in in the case case exceed exceed a million dollars. PARTIES Plaintiff, JENNIFER FRAME, is an individual residing in Austin, Travis County, Texas. Plaintiff, GREG GRIFFITH, is an individual residing in Austin, Travis County, Texas Plaintiff, CHERYL BURRIS, is an individual residing in Plano, Texas. Plaintiff, DIANA PULIDO, is an individual residing in Austin, Travis County, Texas. -1- 11  Defendant CITY OF AUSTIN, is a home rule municipality existing under the laws of of the State of Texas, State Texas, and and may may be served, served, pursuant pursuant to to Tex. Civ. Prac. Tex. Civ. Prac. & Rem. Code & Rem. Code § 17.024, 17.024, by serving its City Secretary at 301 West 2nd Street, Austin, Texas. Defendant, JOSEPH Defendant, JOSEPH LOUIS LOUIS ROSALES, ROSALES, is is an individual residing an individual residing in Austin, Austin, Texas and has been has been served served and and appeared appeared through through his his attorney, attorney, Virginia Virginia Isabel Isabel Hermosa, Hermosa, Hermosa Hermosa Law Law Firm, 503 West 17th Street, Suite 200, Austin, Texas 78701. Jennifer ("Jenny") Jennifer ("Jenny") Frame Frame ("Frame") ("Frame") isis the the Personal Representative of Personal Representative of the Estate of the Estate Decedent Colonel (Ret.) (Ret.) John William Griffith Griffith and and Greg Greg and Cheryl Cheryl are are the son and daughter of Griffith. In her representative capacity as Col. John Griffith. as Personal Representative Representative for for Griffith's Estate, Frame brings Frame brings this survival action this survival action on estate of on behalf of the estate of John John William William Griffith Griffith for for survival survival damages, including damages, including pre-death pre-deathterror terrorand and pain, pain, medical medical bills bills and and funeral funeral bills that his estate bills that estate incurred as incurred as a result result of the tragic tragic but avoidable avoidable incident incident described describedbelow. In addition, below. In addition, as the the Personal Representative Personal Representative for for the the Estate, Estate, Frame Frame also also brings brings this recover damages this suit to recover damages for the ofhis pain, suffering, and mental anguish that John William Griffith sustained as a result of his injuries and prior to his death. In addition, Jennifer Frame, Cheryl Burris Burris and Greg Griffith are are daughters daughters and and the the son of Col. John William Griffith, Col. Griffith, and, and, as such, such, they they are are proper proper statutory statutory wrongful wrongful death death beneficiaries beneficiaries under Texas Civil Practice and Remedies Code § 71.004. The Frames bring this wrongful death of Col. John William Griffith for all the suit in their individual capacity as the daughters and son of damages properly recoverable in a wrongful death suit. addition, Jennifer In addition, Jennifer Frame Frame was was bystander bystander and and an an eye eye witness witness to fatal incident to the fatal incident in which her which father was her father was killed killed in in the the incident incident described described below. below. Frame Frame brings brings this this suit her suit in her -2- 12 individual capacity individual capacity for for the the bystander bystander damages damages and and mental mental anguish anguish that that she has sustained as the of being a bystander to result ofbeing to the the incident that that caused caused her her father's fatal injuries. Diane Pulido Diane Pulido suffered suffered serious serious and and permanent injuries as permanent injuries as aa result result of this this incident incident and and brings suit to recover her damages under applicable Texas law. JURISDICTION, VENUE AND NOTICE This court This court has subject matter has subject matter jurisdiction jurisdictionover overthis this action. Venue is proper action. Venue proper in in Travis Travis County, Texas County, Texas because, because, among among several several things, Travis County things, Travis County is where where the the incident incident occurred. occurred. Plaintiff alleges Plaintiff alleges that the damages that the sustained by Plaintiffs damages sustained Plaintiffs in each each capacity capacity greatly greatly exceed exceed the minimal jurisdictional jurisdictional threshold limits of threshold limits of this this Court. Plaintiffs have given Court. Plaintiffs given all all required required notices to bring this bring action. Prior this action. Prior to to the the filing filing of ofthis this lawsuit, lawsuit, and and within within the the time time period period prescribed prescribed from from of the occurrence the date of occurrence described in this petition, Plaintiffs presented notice notice of their claim to representative of the proper representative of the the City City of Austin Austin as as required. Additionally, at all required. Additionally, all relevant relevant times, times, Defendant City of Austin has had actual notice of Plaintiffs' injuries injuries and and damages damages through actual of this action was investigated by the Austin Police notice, as, e.g., the incident forming the basis of Department and Department and other other city city authorities authoritiesininthe dischargeof thedischarge official duties. of official duties. As As a result result of of that that investigation The City of Austin acquired full, full, complete, and actual knowledge of of the occurrence giving rise to giving rise cause of to Plaintiffs' cause of action action and and that that Plaintiffs Plaintiffs were asserting asserting a claim based on the occurrence. FACTS AND CAUSES OF ACTION Street, On or about May 7, 2012, Rosales was driving eastbound on West Cesar Chavez Street, Austin, Travis in Austin, Travis County County Texas. Col. John Texas. Col. John William William Griffith, Griffith, an 80 year an 80 year old old Veteran Veteran and and friend, father and grandfather, was walking with Jenny, one of beloved friend, of his daughters, eastbound location where North Lamar Blvd. crosses over West Cesar on the Hike and Bike trail near the location -3- 13 Chavez Street. Chavez Street. Diane Diane Pulido Pulido was also walking was also walking along along the trail trail when, when, suddenly suddenly and and without without warning, Rosales drove warning, Rosales drove the the 1995 Hyundai off of Cesar Chavez, 1995 Hyundai Chavez, over the curb and, along with objects objects that included included a traffic warning sign installed by the City, City, struck struck John John William William Griffith Griffith and Diana and Diana Pulido Pulido as they were as they were walking walking on the Trail. on the Trail. John JohnWilliam William Griffith Griffith was was seriously seriously injured injured and and later later died died from from his his injuries injuries the the next next morning morning on on May May 8, 8, 2012. 2012. Diana Diana Pulido Pulido was seriously and permanently permanently injured. At the injured. At the time time that that Mr. Mr. Griffith Griffith was on on the Hike and Bike trail, his his daughter, Jenny, was daughter, Jenny, was walking walking with with him him and and was was a witness witness to to the the incident incident and and narrowly narrowly escaped serious serious injury or death death herself. herself. Plaintiffs Plaintiffs allege allege that that Rosales was negligent, and that his negligence was aa proximate negligence was cause of proximate cause of the the incident, incident, the the death death of of Griffith, Griffith, and and the the damages damages sustained by his Estate, the damages sustained by Frame in her individual capacity as a statutory wrongful death, wrongful death, the damages sustained the damages sustained by by Frame Frame in her individual individual capacity capacity as eye witness as an eye witness bystander to bystander horrendous incident to the horrendous incident which which killed killed her father, and the her father, the damages damages sustained sustained by Diana Pulido. Pulido. But Butthe the danger danger facing facing Plaintiffs Plaintiffs that that afternoon afternoon should should never never have have happened happened and never should have have resulted resulted in in any any death death or or injury injury in in 2012. 2012. The The danger danger of of aa vehicle vehicle jumping the curb curb and entering upon and travelling entering upon down the travelling down the Hike Hike and Bike Trail in that location location was well known known to the City for years to the years before before this this tragedy. tragedy. This This death death and and damages damages would would have have been been easily prevented if the City had simply simply implemented implemented inexpensive inexpensive construction construction and maintenance maintenance measures it previously identified measures identified and and knew knew were were needed needed to to guard and protect users of the Hike and Bike Trail in that location. THE CITY OF AUSTIN WAS NEGLIGENT AND GROSSLY NEGLIGENT AND A CAUSE OF THE DAMAGES OF PLAINTIFFS The Ann and Roy Butler Hike-and-Bike Hike-and-Bike Trail Trail at Lady Bird Lake ("Hike and Bike Trail") is owned, owned, constructed, controlled and constructed, controlled and maintained maintainedby bythe theCity Cityof of Austin. Austin. The The City City markets markets and -4- 14  of the Crown Jewels of touts the Hike and Bike Trail as one of of Austin and publicizes that the Hike Trail sees and Bike Trail 1.5 million sees 1.5 million visitors visitors aa year, year, with with that that number number expected expectedtoto grow. grow. On May 7, 2012, Col. Griffith, his daughter Jenny and Diana Pulido were using the Hike and Bike Trail in a manner and permitted permitted use use expected expected by the City when their lives were shattered by what was to them an uncommon, hidden peril - a vehicle and property debris dangerously barreling down the Hike and Bike Trail - aa condition condition and and danger danger that that they they did did not not reasonably reasonably expect expect to to encounter. encounter. But it was aa danger danger and and peril peril that that the the City of Austin City of Austin knew knew existed, existed, never never warned of of and and should should have corrected have corrected and averted through and averted through simple simple construction constructionand andmaintenance. Instead, the maintenance Instead, the City City failed safely construct failed to safely construct and and maintain maintain the the Trail Trail for for the the worst worst reason reason possible possible — - to to save save a little money. The City, including the Parks and Recreation Department, failed to maintain the Trail in a reasonably safe reasonably safe condition, failed to condition, failed to adequately adequately warn warn of the the unsafe unsafe condition condition and and failed failed to to fix or repair the repair the dangerous condition of dangerous condition of the the Trail. The danger Trail. The danger that that killed killed and and injured injured the Plaintiffs Plaintiffs in 2012 was nothing nothing new unknown to new or unknown to the the City of Austin. Austin. In the 15 15 years before 2012, 2012, the City 13 prior knew of at least 13 prior instances instances of of vehicles dangerously travelling travelling up up over the curb and onto in the the Hike and Bike Trail in the same same or or substantially substantially same same location. location. Through nothing more than serendipity and serendipity and dumb dumb luck, luck, some some of those those incidents incidents involved involved no injuries to no injuries to people using the Trail. But Trail. Butother otherincidents incidents did did involve involve contact contact with with Trail Trail users vehicles or debris, users by vehicles debris, or both, both, including one including one in 1999 when in 1999 when Gov. George W. Gov. George W. Bush Bush and and part detail was struck by debris part of his detail debris when a truck and trailer when trailer lost control control at at the the same same location. In that location. In that case, case, aa truck truck travelling travelling east east along First Street running along running parallel parallel to to the the Hike Hike and Bike trail was pulling a trailer full of of debris, debris, scraps of wood and including scraps and chunks chunks of concrete. The driver concrete. The driver lost lost control. control. The The trailer overturned. Debris went Debris went flying flying across acrossthe the Hike Hike and and Bike Bike Trail. Gov. Bush, Trail. Gov. accompanied by Bush, accompanied Texas by a Texas -5- 15 Department of Public Safety agent on a bicycle, happened to be jogging past. "I heard the noise, looked back, looked back, saw saw itit start tip and start to tip and my my instincts instincts were were to to dive," dive," he he later later told told reporters. reporters. Bush Bush ducked behind the bridge support and sustained only a scrape to his hip. hip. The DPS agent was not lucky; Staff Sgt. as lucky; Sgt. Roscoe Roscoe Hughey Hughey had had to to be be pulled pulled from from the the rubble rubble and and hospitalized. There hospitalized. There were other similar incidents between 1999 and before 2012, including contact with a pedestrian and pedestrian pedestrian control devices by control devices by vehicles vehicles or or debris. Yet, the debris. Yet, the City City did did nothing, nothing, despite despite policies that called for action. The City The City cannot cannot possibly possibly deny deny it was on it was on notice of the notice of the dangerous dangerous condition condition and the the undisputed need to undisputed need construct and to construct maintain protection and maintain protection as as these these incidents incidents occurred. Concerned occurred. Concerned citizens even contacted citizens contacted the maintenance to cure the City to request protection and construction and maintenance the peril. the Chillingly,one peril. Chillingly, onecitizen citizenexplicitly explicitly warned warned the the City City in in 2005 2005 that that the the very very peril at this very location very location where where this tragedy tragedy later later occurred occurred was was "a "apedestrian/runner pedestrian/runner fatality fatality waiting waiting to Infact, happen." In fact,that thatisisexactly exactlywhat whatthe theCity Citydid did- — wait for a fatality to happen. Moreover, as Moreover, early as 2005, as early 2005, the the Parks Parks and and Recreation Recreation Department Department identified identified the the very hazard that ultimately hazard ultimately killed Plaintiffs, and pursuant killed and injured the Plaintiffs, policy, recognized pursuant to policy, recognized the need for need for action action to to protect protect users users of the Trail Trail in in that that location location and and called called for for and and supported supported the the construction of construction of aa guardrail guardrail or or barrier. barrier. Yet, itit drug drug its its heels heels and and failed failed to act act pursuant pursuant to policy already in already place to in place construct and to construct and maintain maintainaa fix fix for for the the danger. In fact, danger. In fact, less less than than two two months months before this incident, the PARD director noted "concerns keep coming up" and that citizens were asking why asking why a barrier had not yet been installed installed on the North shore shore of of Lady Lady Bird Bird Lake Lake directly directly of Cesar Chavez for under Lamar Blvd., especially when one had been installed on the north side of the bike path users. But none users. But none was was constructed. constructed. Incredibly, Incredibly, the the estimated estimated $35,000 $35,000 cost cost was cited constructed. Shockingly as one reason it was not constructed. Shockingly and and more more repugnant, repugnant, the fact that no one had -6- 16 been killed yet was cited as another reason. This ministerial reason. This ministerial failure failure to to correct correct identified identified hazards of maintenance and construction of and implement a policy of of corrections and safeguards to protect patrons was patrons was a proximate cause of proximate cause of this this incident. This was incident. This was not not an isolated isolated incident. failure to incident. A failure implement policies has has plagued plagued the the City of Austin Austin Parks Parks and and Recreation Recreation Department. Department. In fact, the incident made the basis of this lawsuit was recently cited by the City Auditor as one example of made the delays by delays PARD in by the PARD in addressing addressing identified identified safety hazards:1 Addressing safety hazards. Addressing identified identified safety safety - ititisismandatory hazards is not discretionary — mandatoryand andministerial. ministerial. The The report found that PARD is not managing safety managing safety hazards hazards effectively effectively and and there there is limited assurance is limited assurance that hazards hazards are are promptly promptly identified and identified and corrected. The failure corrected. The of the failure of the City City to to act act on on clear clear policy policy in in place place to to protect protect people of the devastating such as the Plaintiffs was negligence, gross negligence and a proximate cause of injuries here and is actionable. The acts The acts and omissions omissions in this matter in this matter and and over the the course course of of the the previous previous 13 13 similar similar - they incidents are more than mere negligence — theyare aregross grossnegligence. negligence. The acts and omissions of The acts involved the subjective the City involved subjective awareness awareness of an extreme extreme degree degree of of risk, risk, indicating indicating conscious conscious indifference to indifference to the the rights, rights, safety safety and and welfare welfare of of others. Knowing about the danger and peril at others. Knowing issue for issue years, the for years, City did the City did nothing nothing to warn or guard to warn guard against against it in in what what amounts amounts to to gross gross negligence and negligence and willful, willful, wanton wanton and and malicious malicious inaction. inaction. In short, of Austin short, the City of Austin knew about about the peril, but its acts and omissions demonstrate that it simply did not care. PREMISES DEFECT if necessary, Defendant City of Pleading further and in the alternative if of Austin may be held court of to answer in a court of law law for for the the conduct conduct and and occurrence occurrence as as described described above above and and incorporated incorporated 1 1 person was "One person was killed, killed, and another seriously injured, when a car jumped the curb on the Town Lake Trail in May 2012. AA temporary temporary guardrail guardrail was was installed installed at the location and remains today. is unclear today. ItIt is unclear when when a decision will be made regarding safety at the the location. In 1999, location. In 1999, the the Governor Governor was was injured at the same location." From the PARD Patron Safety Audit at p. 4, February 2014, finding PARD has not allocated appropriate skills, structures and resources to support the implementation of of its patron safety policies. -7- 17 here because here because the injuries and the injuries damages made and damages made the the basis basis of this this suit were caused caused by aa premises premises of sovereign immunity from suits alleging personal injury defect and fall under a limited waiver of or death caused by premises defects. SPECIAL DEFECT if necessary, Defendant City of Pleading further and in the alternative if of Austin may be held court of to answer in a court of law law for for the the conduct conduct and and occurrence occurrence as as described described above above and and incorporated incorporated here because the injuries injuries and damages damages were caused by a special defect and fall under a limited were caused limited waiver sovereign immunity waiver of sovereign immunity from suits alleging from suits alleging personal personal injury injury or death caused caused by special special defects. RECREATIONAL USE STATUTE if necessary, Defendant City of Pleading further and in the alternative if of Austin may be held court of to answer in a court of law law for for the the conduct conduct and and occurrence occurrence as as described described above above and and incorporated incorporated here because the injuries injuries and damages damages were caused by were caused by the the City's breach of of even the modest duty owed to Plaintiffs under the recreational use statute and fall under a limited waiver of of sovereign sovereign immunity from suits alleging personal injury or death caused by that breach. DAMAGES DAMAGE S of the acts As a result of acts and/or and/or omissions omissions set set out, out, Griffith Griffith sustained sustained serious injuries which resulted in his his death. Griffith's death death. Griffith's death was was not, not, however, instantaneous. instantaneous. Furthermore, Furthermore, as a direct result of Griffith's death, death, Jenny Jenny Frame, Frame, Cheryl Cheryl Burris Burris and and Greg Griffith have sustained damages as well. Jenny Frame well. Jenny Frame isis also also entitled entitled to to damages damages as as aa bystander bystander who witnessed the needless and avoidable tragedy. avoidable Plaintiffs hereby tragedy. Plaintiffs hereby make make aa claim claim for for all all past past and and future future damages damages recoverable recoverable under Texas the Wrongful Texas law and pursuant to the Wrongful Death Death Act and and Survival Survival Action Action and and bystander bystander claims in an amount within the jurisdictional claims limits of the jurisdictional limits Court and which the Court which the jury deems as -8- 18 just and fair, to include, but not limited to, the following: following: 1. 1. conscious physical pain and mental The conscious mental anguish anguish JOHN JOHN GRIFFITH GRIFFITH experienced experienced prior to his prior his death, death, including including the physical physical pain and mental mental anguish anguish he experienced experienced up to his up to untimely death; 2. 2. All reasonable All reasonable and and necessary necessary medical medical expenses expenses for for any any emergency emergency care care associated with associated with the the attempts attempts to save the life to save life of ofJOHN JOHN GRIFFITH, GRIFFITH, and and all all reasonable reasonable and and of JOHN GRIFFITH; necessary funeral and burial expenses of 3. 3. The pre-death terror JOHN GRIFFITH experienced; 4. 4. The mental The mental anguish, anguish, including including emotional emotional pain, pain, torment torment and suffering that and suffering that the Plaintiff has experienced from the death of Plaintiff of JOHN GRIFFITH; 5. 5. The pecuniary The pecuniary loss loss Plaintiffs Plaintiffs have have suffered suffered and and will will suffer, suffer, meaning meaning the the loss loss of care, maintenance, care, maintenance, support, support, services, services, advice, advice, attention, attention, counsel, counsel, guidance, guidance, protection protection and and reasonable contribution of reasonable contribution of pecuniary pecuniary value value that would, in reasonable that would, reasonable probability, probability, have have been received by the Plaintiffs from the Decedent, JOHN GRIFFITH; 6. 6. of society and companionship representing the positive benefits flowing The loss of from the from the love, love, comfort, comfort, companionship companionship and and society society that Plaintiffs would that the Plaintiffs would have, have, with with reasonable probability, experienced if JOHN GRIFFITH had lived; 7. 7. The loss of inheritance and loss of of addition to estate; and 8. 8. direct and As a direct and proximate proximate result of of defendants' defendants' negligence, negligence, as as described described above, above, Plaintiff Jenny Frame Frame has suffered severe mental pain and suffering since the perception of the occurrence made occurrence made the basis of this the basis this suit and of the injuries injuries and harm and death death sustained by her father. As aa result of the result of the acts acts and/or and/or omissions omissions set set out, out, Pulido Pulido sustained sustained serious serious injuries injuries and and -9- 19 incurred medical expenses incurred medical expenses for for the the necessary care of those necessary care those injuries. injuries. Diana Diana Pulido's Pulido's injuries injuries include, are not limited to, a head include, but are head injury, injury, fractured fractured tibia and fibula, fibula, a fractured fractured shoulder, shoulder, a fractured pelvis, a fractured fractured pelvis, fractured clavicle clavicle and and multiple multiple lacerations lacerations and and contusions. contusions. She has required required multiple multiple surgeries and extensive surgeries and extensive rehabilitation. rehabilitation. With With reasonable reasonable medical medical probability, probability, Pulido Pulido will continue to incur medical expenses for the necessary treatment of her injuries in the future. In addition, Pulido has suffered loss of of earning capacity, physical pain, mental anguish, physical impairment, and disfigurement impairment, and disfigurement resulting resultingfrom fromher her injuries injuries and and is is expected expected to to suffer from from her injuries in the future. JURY DEMAND Plaintiffs hereby respectfully demand a trial by jury and have tendered the appropriate fee to the Clerk of of the Court. PRAYER WHEREFORE, PREMISES CONSIDERED, WHEREFORE, PREMISES CONSIDERED, Plaintiff prays prays that that the Defendants be cited to appear appear and answer answer herein, that after trial herein, that trial and hearing, hearing, Plaintiff have have and and recover all of the recover all damages prayed for above, and for any and further relief to which Plaintiff Plaintiff may be justly entitled. Respectfully submitted, HOWRY BREEN BREEN & & HERMAN, L.L.P. L.L.P. /s/ Sean E. Breen Sean E. Breen sbreen(i],howrybreen.com sbreen@howrybrecti.com State Bar No. 00783715 1900 Pearl Street Austin, Texas 78705-5408 (512) 474-7300 (512) 474-8557 FAX -10- 20  ATTORNEYS FOR PLAINTIFFS JENNY FRAME, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN WILLIAM GRIFFITH, GREG GRIFFITH, and CHERYL BURRIS SLACK & & DAVIS, L.L.P. /s/ Mike Davis Mike Davis mdavis(ti;slackdavis.com mdavis(ii;slackdavis.corn State Bar No. 05549500 Slack & & Davis, LLP 2705 Bee Cave Road, Suite 220 Austin, Texas 78746 (512) 795-8686 ATTORNEYS FOR PLAINTIFF DIANA PULIDO CERTIFICATE OF SERVICE true and I certify that May 7, 2014, I sent a true and complete complete copy copy of of this pleading via electronic filing, certified U.S. filing, certified U.S. mail, mail, regular regular U.S. U.S. mail mail and/or and/or by facsimile facsimile to the the following following persons persons in accordance with the Texas Rules of of Civil Procedure: Virginia I. Hermosa Hermosa Law Firm 503 West 17th St, Suite 200 Austin, Texas 78701 /s/ Sean E. Breen Sean Breen -11- 21 TAB 2 City of Austin _ /.,,,---: 4-" ,-:.r „.„,.1:,.,„ ., N /.I. A A Report Report to to the the Parks Parks and and Recreation Austin City Council Austin City Mayor Department (PARD) Patron Department (PARD) Lee Leffingwell Safety Audit Mayor Pro ProTem Tern Sheryl Cole February 2014 Council Council Members Members Chris Riley Mike Mike Martinez Kathie Tovo Laura Laura Morrison Bill BillSpelman Spelman EXHIBIT. i. . .„ „„..,. Office of Office of the the f - B·- :„. City Auditor City City Auditor City Auditor Kenneth J. Mory Mary CPA, CIA, CIA, CISA, CISA, CRMA Deputy City Auditor Deputy City Corrie Come E. E. Stokes CIA, CFE CIA, CGAP, CFE 54  AUDIT NUMBER: AUDIT NUMBER:AU13028 AU13028 TABLE OF CONTENT BACKGROUND .............................................................................................................................1 OBJECTIVE, SCOPE, OBJECTIVE, SCOPE, AND AND METHODOLOGY .....................................................................................1 RESULT$ ............................................................................................................................2 AUDIT RESULTS Appendix Appendix A: Appendix A: Management Management Response ..................................................................................................... .. . ... ...... . .. .... ... ....... .... . .. ..... . .. . 8 Exhibits Exhibit 1: Exhibit 1: Implementation Implementation ofofHazard Hazard Identification Identification Policies Policies ................................................................. 3 Exhibit Exhibit 2: 2: Implementation Implementation ofof Patron PatronSafety SafetyHazard Hazard Correction Policies .............................................. .4 Correction Policies 4 Exhibit3:3: Concrete Safety Hazard Exhibit Hazard at Dougherty Dougherty Arts ArtsCenter Center................................................................. .. . . .... .... . ...... 5 Exhibit 4: Exhibit 4: Play Play Area Area at at the Arts Center ................................................................................. S Dougherty Arts the Dougherty 5 Exhibit 5: Exhibit 5: Minor Hazard at Dougherty Dougherty Arts Arts Center ................................................................................ 6 STANDARDS COMPLIANCE GOVERNMENT AUDITING STANDARDS COMPliANCE We conducted this performance performanceaudit auditin in accordance accordancewith withGenerally Generally Accepted Accepted Government Government Auditing Auditing Standards. Those Standards. Those standards that we standards require that we plan plan and perform the the audit audit to to obtain obtain sufficient, sufficient, appropriate evidence appropriate evidence to to provide provide aareasonable reasonablebasis basis for for our our findings findings and conclusions conclusions based based on our objectives. We audit objectives. We believe believe that the the evidence evidence obtained obtained provides provides aa reasonable reasonable basis basis for for our our findings findings conclusions based on our audit objectives. and conclusions objectives. AUDIT TEAM Niki Niki Raggi, Raggi, CGAP, CGAP, CRMA, CRMA,CICA, CICA,Assistant Assistant City City Auditor Auditor Christopher Shrout, Christopher Shrout,CGAP, CGAP, Auditor-in-Charge Felipe Garcia-Colon, CGAP, CGAP, Auditor Auditor Office of Office of the the City Auditor Auditor Hal! Austin City Hall phone: (512)974-2805 ernail: email: oca_auditor@austintexas.gov website: http:/ /www.austintexas.gov/auditor http://www.austintexas.gov/auditor Copies of Copies of our our audit are available audit reports are available at lIttp //www rav,tintexas,govia dctor/icports on 01 tat) Printed on recycled recycled paper paper Alternate formats available available upon request 55  February 2014 Mayor and Council, Council, II am pleased to am pleased to present present this audit audit on on patron patron safety safety at at Parks Parks and Recreation Recreation facilities. Audit Report Audit BACKGROUND Highlights This audit This audit was placed on on the theFiscal Fiscal Year Year 2014 Strategic Audit Plan as result of aa risk result of risk assessment performed assessment performedby bythe theOffice Officeofofthe theCity CityAuditor Auditor that thatidentified identifiedPARD PARD as Why We Did This This Audit City department the City department with the the highest risks related to managing the safety highest risks safety of of This audit This audit was was conducted conducted patrons at its facilities, at its facilities. as part part of of the the Office Office of the City the City Auditor's Auditor's(OCA) (OCA) PARD PARDisisresponsible responsiblefor total of 330 locations. PARD foraatotal PARD facilities facilities include, include, but but are FY2014 FY 2014Strategic Strategic Audit not limited limited to,to, parks, parks, recreation recreation centers, senior centers, cultural centers, pools, pools, Plan. Plan, cemeteries.PARD splash pads, and cemeteries. PARD staff staff estimates estimatesover overfive five million million patrons patrons visit visit their facilities their facilities annually. What We Recommend OBJECTIVE OBJECTIVE AND AND SCOPE SCOPE The Director should allocate the necessary The objective objective of the audit was the audit to determine was to determineififPARD PARD has has an an effective effective system to skills and skills and resources resources to identify, address, identify, address, and mitigate risks risks to patron safety, safety. appropriately implement the PARD PARD patron patron safety safety The audit scope scope included PARD patron includedPARD safety activities patron safety activities for for Fiscal Fiscal Years Years 2012 and program and monitor its 2013. effectiveness. WHAT WE fOUND FOUND While PARD While PARDmanagement managementhashasdeveloped developed and and approved approved policies policies aimed at identifying and identifying and managing managing hazards related to patron related to patronsafety, safety,PARD PARD executive management has not not allocated allocated the the appropriate appropriate skills, skills, structures, structures, and resources to the implementation support the implementationof ofits its patron patron safety safety policies. policies. Key Keyelements elements ofof the PARD patron the PARD patronsafety safety program program include includerequirements requirements for hazard identification, identification, data data analysis, analysis, and hazard hazard correction and monitoring. correction and However, monitoring. However, required annual safety audits audits are are not notconsistently consistently conducted, conducted, incidents incidents and and injury injury data is not thoroughly analyzed, and hazards hazards identified identified are are not not monitored through correction. As aa result, As result, PARD PARDisisnot noteffectively effectivelymanaging managinghazards hazardsrelated relatedto to patron patron safety and is limited there is limited assurance assurance that hazards identified that hazards identified are corrected promptly. promptly. We appreciale the cooperation appreciate the cooperationand andassistance assistancewe wereceived receivedfrom fromPARD PARD staff staff during this ;;tudit. audit. / ' i I / 1 If lj ............../ ' ! ' t__ . . ,.-\ -~ For For more more information on this or any :' ! / \~--- \ ............,.....,,__ ,/.--- .!" Kenne~h A~~ of our reports, email ' oca_auditor@austintexas.gov oca_auditor@austintexas.goy J. Mory, Kenneth J. Mory, City City A dit\O\ \ ) ' ,• 56 BACKGROUND This audit was placed This placed on on the theFiscal Fiscal Year Year (FY) (FY) 2014 2014Strategic Strategic Audit AuditPlanPlanasasresult resultof ofaa risk risk assessment assessment performed performed by theOffice by the Officeof ofthe theCity City Auditor Auditor (OCA) (OCA) that PARD asasthe that identified PARD theCity Citydepartment department with the highest highest risks risks related related to to managing managing the the safety safety of of patrons patronsatatits itsfacilities. facilities. PARD PARDisisresponsible responsiblefor foraatotal total of of 330 330 locations. PARD facilities locations. PARD facilitiesinclude, include,but butare are not not limited to, parks, recreation centers, centers, senior seniorcenters, centers, cultural cultural centers, centers,pools, pools,splash splash pads, pads, and and cemeteries. cemeteries.PARD PARD staff staff estimates overfive estimates over five million million patrons patrons visit their facilities visit their facilities annually. OBJECTIVE, SCOPE, AND METHODOLOGY The PARD PARD Patron Patron Safety Safety Audit Audit was was conducted as part conducted as partof ofthe theOCA OCA FY FY 2014 2014 Strategic Strategic Audit Plan, as presented tothe presented to theCity CityCouncil Council Audit Audit and and Finance Finance Committee. Committee. Objective The objective of the audit audit was was to to determine determineififPARD PARD has has an an effective effective system system to to identify, identify, address, and risks to mitigate risks to patron safety. Scope The audit scope scope included PARD patron included PARD patron safety activities for Fiscal Fiscal Years Years2012 2012and and 2013. 2013. Patron Patron safety activities refer to measures activities measures taken taken by by PARD PARD to toprotect protect the public at the public at department facilities. department facilities. Methodology To accomplish To accomplish our our audit audit objectives, objectives, we we performed the following performed the following steps: ■" conductedaasurvey conducted surveyof of14 14PARD PARD division divisionmanagers patron safety managers regarding patron safetyefforts effortswithin withinPARD; PARD; ■• assessed local assessed local media media coverage coverage related relatedtotopatron patronsafety safetyatatPARD PARD facilities facilities; ■ '" conducted interviewswith conducted interviews withPARD PARD staff; ■ '" reviewed safety industry practices; •"' analyzed department analyzed policies and department policies and procedures related to patron safety; • reviewed relevant relevantclaims claims and and lawsuits lawsuits against againstthe theCity Cityrelated relatedtotoPARD; PARD; ■ • PARD incident analyzed PARD incidentandand injuries injuriesdatabases; databases; • reviewed safety safety inspection inspectionreports reportsforforPARD PARD facilities; ■ '" numerous PARD visited numerous PARD facilities facilitiesincluding includingplaygrounds, playgrounds,recreation recreationcenters, centers,senior senior centers, centers, and golf facilities; facilities; and • analyzed laws applicable to patron patron safety safety at at municipal municipal facilities. facilities. Office of the City Office City Auditor 1 PARD PARDPatron Patron Safety Safety Audit, Audit, February 2014 57 AUDIT RESULTS Finding: PARD has not allocated the appropriate skills, structures, and resources resources to Asaaresult, support the implementation of its patron safety policies, As result,PARD PARD is not managing safety hazards effectively and there is limited assurance that hazards are promptly identified and corrected. According According to to the the various safety industry practices we reviewed, organizations should have aa system in in place place to to provide provide reasonable reasonable assurance assurance that that key key hazards hazards are are identified. identified. Further, Further, after after detection, significant current and potential hazards should be prevented, significant current prevented, corrected, corrected, or or controlled controlled in in aa timely timely manner. PARD PARDhas hasdeveloped developedand and approved approved policies policiesaimed aimed atat identifying identifyingand and managing managinghazards hazards related related to patron safety that patron safety thatare areininline linewith withthe theCommission Commissionfor forAccreditation Accreditation ofof Park Park and Recreation Recreation Agencies Agencies (CAPRA) requirements. (CAPRA) Specifically, per requirements. Specifically, per policies policiesPARE) PARD should: should: inspect,audit, 1. inspect, audit,and andinvestigate investigateall all department departmentproperty propertyto toidentify identify hazards; hazards; 2. gather 2, gatherand andanalyze analyzerelevant relevantdata datatotoidentify identifytrends trendsandandmake makerecommendations recommendations forfor corrective corrective actions; and 3. ensure 3. ensure that that corrective corrective actions actions areare addressed addressed and and monitor monitor PARDcompliance PARD compliance with with its safety program. However, based on our analysis However, analysis and and observations, observations, executive executive management management hashas not not allocated allocated the appropriate skills, appropriate structures, and skills, structures, and resources resources to to support the implementation implementation of its its patron safety policies. As a result, PARD policies. As PARD isisnot notmanaging managingsafety safetyhazards hazards effectively effectivelyand andthere there is is limited limited assurance assurance that hazards identified that hazards identified are are corrected promptly. promptly. PARD PARDpolicies policiesassign assignthe theresponsibility responsibilityofofadministering administeringitsitspatron patronand andoccupational occupational safety safety programs to aa Safety Office Office who who should should report report directly directly to to the the department executive team. department executive team. InInpractice, practice,PARD PARD does not not have have aa Safety Safety Office Office dedicated dedicated toto administering administering these these programs. programs. In In the absence absence ofof aa Safety Safety Office, patron Office, patron safety responsibilities responsibilities have have been assigned to been assigned to the department department Occupational Occupational Health Health and primary focus is Safety Coordinator, whose primary is worker worker safety safety and who organizationally organizationally reports reports to aa Human Resource Supervisor within the Management ManagementServices Servicesdivision. division. In In addition, addition,PARD PARD has aa Certified Playground Certified Playground Coordinator Coordinator who reports to the who reports the Maintenance MaintenanceDivision Division Manager. The The three three sections below below outline the disconnect between between policies policies and implementation implementation in in each of the three hazard three hazard management management areas areas identified identified above. HazardIdentification 1. Hazard Identification In In order to timely order to timely identify identify safety safety hazards, hazards, PARD PARD policies policiesrequire require periodic periodicsite site inspections inspections and annual safety audits safety audits totobe beconducted conductedononeacheachPARD PARD facility. facility. Additionally, Additionally, the the City's City's Child Child Care Care ordinance ordinance that each requires that each facility facility that undergo an annual safety inspection. that hosts recreational programs undergo As As shown shown inin Exhibit Exhibit1,1,safety safetyinspections inspectionsare arenot notconsistently consistentlyconducted, conducted, documented, documented, and monitored monitored'as as required. Office of the Office City Auditor the City 2 PARD PARDPatron PatronSafety Safety Audit, Audit, February February 2014 58  EXHIBIT EXHIBIT 1 Implementation of Hazard Identification Policies Officer, in The Safety Officer, in coordination coordination with No A total of 22 of total of 118staffed of 118 staffedPARDPARD site supervisors, should conduct aa FY 2013 facilities in FY 2013 received aa comprehensive annual safety audit on comprehensive safety audit audit by the each staffed each PARD facility staffedPARD Occupational Health and Safety Safety Coordinator Playgrounds Playgrounds areare to to undergo an annual Partially 52 of 99 PARD-identified PARD-identified playgrounds playground audit by a certified received an auditaudit by by aa certified certified und safety inspector playground playgroundund inspector ins ininFYFY 2013 Division DivisionManagers Managers are are responsible for Partially Based Based on on our review of ensuring that each location location of operation documentation for the the recreation recreation receives random in-house safety and centers in the south and and north health self-inspections with results districts, districts, recreation centers receivereceive forwarded toto the theSafety Safety Office Office for review periodic periodic maintenance inspections or maintenance inspections safety self-inspections; however, however, the the results of these results inspections are not these inspections provided to the the Occupational Occupational Health Health and Safety Coordinator and there is is not a system to to ensure ensuredivision division managers receive and review review ion results inspection SOURCE: PARD SOURCE: PARDpolicies and policies OCA and observations OCA during observations the during course the courseofof the theaudit, audit,September-December September-December 2013 Datacollection 2. Data collectionand and analysis analysis According to According PARD policy, to PARD policy,safety safetystaff staffshould shouldcollect collectand and analyze analyzedata, data, including including incidents and injuries, on an injuries, on an ongoing ongoing basis. basis. Such Such analysis analysis should should lead leadtoto recommendations recommendations to identify trends and prevent common types prevent common ofaccidents. types of accidents. All All incidents incidentsandandinjuries injuriesshall shall be be entered enteredinto intothe thePARD PARD injury injury databaseand and incident database and forwarded forwardedto tothe theSafety SafetyOffice. Office. However, However/we wefound foundthat thatPARD PARD does not have aa central database databasefor forall all incidents incidentsor orinjuries injuries that thatoccur occuratatPARD PARD facilities. facilities. Rather, Rather, there there are three separate three separate systems systems (general (general database, database, aquatic aquatic database, database, and and Park Park Ranger Ranger database) and these datasets are datasets are not notreviewed reviewed oror analyzed analyzed in in the the aggregate. aggregate. In In addition, addition, summary summary annual annual inspection inspection information and patron safety summary information summary data from from the general database is not reportedreported to to executive executive management. Additionally, according to Additionally, according to OCA OCAanalysis, analysis,thetheinformation informationininthe thedatabases databases is is incomplete, incomplete, contains information that is is not relevant, relevant/ and the the data data isis not not categorized categorized in in a manner manner that thatprovides provides useful useful trend analysis. trend analysis. For For example, thegeneral example, the generalPARDPARD database database contains over over 70 categories categories ofof injuries, injuries, including: cut, fall, fall, minor, minor, scratches, scratches, minor minor scrapes, scrapes, hit, hit, hit hit in inthe the mouth, mouth, bee sting, mashed mashed fingers, fingers, major, and red mark on forehead. forehead. Also, Also, there there isis confusion confusion over over what what constitutes constitutes an incident and constitutesan what constitutes aninjury. injury. According Accordingto toPARD PARD policy, policy,injuries injuriesareareminor minoraccidents accidents that that require at most on-site first aid, while while incidents incidents are are major accidents that require EMS assistance. require EMS However, assistance. However, according to OCA OCA analysis, analysis,70% 70%ofofthe thereported reported incidents incidents are are categorized categorized as as general general conduct and children's behavioral relate to children's behavioral issues. Office of the City City Auditor 3 PARD PARDPatron Patron Safety Safety Audit, Audit, February 2014 59 3. Hazard correction Hazardcorrection As As indicated indicated above, above, after after detection, significant significant current current and and potential potential hazards shouldshould be be prevented, corrected, or corrected, orcontrolled controlledinin aatimely timelymanner. manner.Per PerPARD PARD policies, policies, when aa hazard identified, itit is hazard isis identified, is either corrected either corrected byby eliminating eliminating the the cause cause ofof the the hazard hazard at atthe thesource sourceor orisis effectively effectively controlled, controlled, controlling or such as controlling or limiting limiting access to aa specific area. However, However, as as shown shownin in Exhibit Exhibit 2, currently there is there is no mechanism to ensure that once identified, ensure that once identified, hazards are actually corrected. EXHIBIT2 EXHIBIT 2 Implementation of Patron Safety Hazard Correction Policies tiem in The Safety Officer Officer should should conduct conduct No We We found found no no evidence evidencethat thatroutine outine follow-up inspections to follow-up inspections to ensure ensure follow-up is follow-up is conducted conducted corrective action is taken The Safety Office Office isis responsible responsible for No Documentation Documentation needed to evaluate monitoring monitoring the the implementation of the the compliance with the safety program program safety program to ensure compliance co is not is not maintained in in aa central location location SOURCE: SOURCE:PARD PARDpolicies policiesand andOCA OCAobservations during observations the during thecourse courseofofthis thisaudit, audit,September-December September-December 2013 Over the course of of our our audit, audit, wewe found found various various instances instances of of delays delays in addressing identified safety hazards. For example: hazards. For ■ • The Annual Annual Playground Playground Conditions Conditions Overview Overview Report Report fromfrom November November 2012 2012 identified eight playground locations with with non-compliant safety hazards that, according according to to priority priority ratings ratings established by the International by the International Playground Playground Safety Institute, are "non-compliant safety concerns that may result that may result inin permanent permanentdisability, disability, loss loss of life life oror body body part, part, and and should should be corrected immediately." As As of December 2013, only only four four of of the the eight eight playscapes playscapes have have had the hazards mitigated. Although Although the the implementation implementationof ofaanew newplayscape playscape is is assigned assigned toto the theCapital Capital Improvement Planning Planning Division, Division,there appears to thereappears to be be disagreement between this disagreement between this division division and and the Maintenance Division over Maintenance Division over what PARD division what PARD divisionisisresponsible responsible for for mitigating mitigating the the existing hazards. • AA tree injured aapark tree fell and injured patronon park patron onthe theTown TownLakelakeTrail Trail in in September September2013;2013;PARD PARD had identified the identified the tree forfor removal a month prior. • The a The Occupational Occupational Health Health and and Safety Safety Coordinator Coordinatorasserted asserted that identified safety hazards that he has identified at multiple at multiple PARD PARD locations, locations, butbut due due to disagreement disagreementwith withPARD PARD division division managers managers over the severity of thethe hazard, action was not taken to mitigate the hazard. " One person was killed, ▪ killed, and and another seriously injured, when a car jumped the another seriously the curb curb on on the the Town Town lake LakeTrail TrailininMay May2012.2012.AAtemporary temporaryguardrail guardrailwas wasinstalled installedat atthe the location location and and remains today. It It is is unclear unclear when when a decision decision will willbe bemade maderegarding regardingsafety safetyat atthe the location. In 1999, the location. In Governor was was injured injured at at the the same location. Office of the City City Auditor 4 PARD PARDPatron Patron Safety Safety Audit, Audit, February 2014 60 11 A .safety .A safety issue at the issue at the Dougherty Arts Center (DAC) playarea (DAC) play wasidentified areawas by the identified by site supervisor, the site supervisor, Occupational Health and Safety Coordinator, andand playground inspector. The hazard was The hazard partially addressed addressed in the summer ofof 2013, only after a child injured his and required his head and stitches. EXHIBIT3 EXHIBIT 3 Concrete Safety Hazard at the the DAC RPm.,.v,.,~!.-·-· DAC (Since Removed photo, June PARDphoto, SOURCE: PARD SOURCE: June 2013 •11 The site supervisor and The site the Occupational and the Health and Occupational Health SafetyCoordinator and Safety that the indicated that Coordinator indicated the play area area at the DAC in its DAC in its current possible hazard present aa possible current condition continues to present to children hazard to children (shown below). TheThe Occupational Occupational Health and Safety Coordinator has Health and proposed alternative has proposed alternative options to to the the current currentplayplayarea, but an area, but alternative plan an alternative has not plan has agreed upon. been agreed not been EXHIBIT 4 of January 2014 as of DAC Play Area as photo, January OCAphoto, SOURCE: OCA SOURCE; January 2014 Office of the City Auditor Auditor S5 PARD Safety Audit, Patron Safety PARD Patron February 2014 Audit, February 61 • Site visits visits conducted conducted byby our our staff staff in in conjunction conjunction with with PARD PARD staff staffindicate indicate there there are various minor outstandingsafety outstanding safetyhazards hazardsatatthe the DAC,Hancock DAC, Hancock Recreation RecreationCenter, Center,and andJimmy JimmyClay Clay Golf Golf Barn, including slippery including slippery conditions conditions on steps and stairways steps and stairways and anADA and an ADA ramp with a rotten rotten railing, railing, shown below. Exhibit 5 Minor Hazard at Dougherty Arts Center 'k SOURCE: OCA SOURCE: OCAphoto, photo,January January 2014 Executive Executive management support is management support is critical critical to the the successful implementation implementation of ofany any policy. policy. While While PARD PARDexecutive executivemanagement management commitment commitment is dearlyclearly spelled spelled out out in in its safety policies, policies, as as mentioned mentioned above, this commitment has not been supported supported by by the appropriate appropriateskills, skills, resources, resources, and and structures. structures. Without a structure in in place to ensure ensure safety safety inspections inspections occur, occur, without relevant safety data being collected and analyzed, and without a mechanism to ensure identified hazards are addressed timely, there is limited there is limited assurance assurance that thathazards hazardstotopatron patronsafety safetyatatPARD PARD facilities facilities are are promptly promptly identified and corrected. As As aaresult, result, the theCity City may may subject its patrons to preventable preventable harmharm and and itself itself to legal legal financial liability. and financial liability. Office Office of the City Auditor 6 PARD PARDPatron Patron Safety Safety Audit, Audit,February February 2014 62 RECOEViMENDATION The recommendations listed listed below below are aa result of our audit effort and subject to the limitation limitation of our scope of work. work. We We believe believethat that these these recommendations recommendations provide provide reasonable reasonable approaches approaches to help resolve the issues identified. We resolve We also also believe believethat that operational operational management management is is in in aa unique position to best understand understandtheir theiroperations operationsandandmaymaybebeable ableto toidentify identifymore moreefficient efficient and and effective approaches and we approaches and we encourage encourage them them to todo do so so when when providing providing their response to our recommendations. recommendations. As As such, we strongly recommend the the following: following: In order In order to to ensure that PARD PARD has hasaasystem systemininplace placeto to provide provide reasonable reasonable assurance assurance that that patron safety risks safety risks are identified and addressed timely, the the Director Director should allocate necessary necessary skills skills and resources to appropriately resources to appropriately implement implementthethePARD PARD patron safety program and monitor its safety program effectiveness. MMJAGEMENT RESPONSE: MANAGEMENT RESPONSE:Concur. Concur.Hefer forfor managementresponse Refertoto AppendixAA response and and action plan,L Office of the City Auditor the City 7 PARD PARDPatron PatronSafety SafetyAudit, Audit,February February 2014 63 APPENDIX A MANAGEMENT RESPONSE -ACTiON AGE ENT RESPONSEACT PlAN N PLAN P;trk:,; Parittt: and l\ccn.:.ltl

a11d rc~u:mnt·rhiatint;s 1111alas1 a'~:nnuwnda1 i\~H. recomittetiditia.,6, "lu Ort-,,C (urt: that n kAiStirt l'ARD thatARO has 11 a ~y.,tcrn hassytacto 3313inplat.at pb.:enttu plU\·idt: !tato:He J<';"f>tuthlc leas/At:at:de assllntl'!i:C, that a•;SiSrarti_;<: patron .,,.,f,!l) tbat patron' ri~.b ;n'·' id::Htilied <11Hl iittch'2•::•k:d ed ............~·--- . ...:...Sirale;ttic.s. S l ru1egipJ<:~t:Jtll jlkm~ ntatinn i - ··~----- fur luiplciavatation !!l!Ekmcn~.ll.ti~!li!J!telin>r ;Thlplementatien lirtelioet I 332;134! ~~ 42434133 Ci\JU!JHd1~1.n~~.tl 11 HFh.~-:-· ,3 Pc\H.D h:;, •;:,1 P't .;.,:~·:.;:ern cz~ 3,~:\:n: to 431, ..-,1 ),r;,,a ii Ii-1 ~;,~a~.,Y - <~ ~n lit I Crc;lt•: ir,;~pc·d~nn 11„, -.YA:11-1 to idc:~tlfy pe:.:Pori -systcn1 j pntcr~ti·tl h;·l.tltH3~_t.:--~thi:~ 411 3;3'21,33 113/ 31813 , .333"1 ! I'Linm,,l s~p(cll1b..:r t'tG. ~Dl4 't.tetittrattlebel 30. 2 ,D14 ), 1Jr•.)\·ilh: rta:;on~b!e: citttero,hls i r~~l\:.;thonal ~~t~~~~t.t;.:-!-. ,.l:<,S!.J!i.Wl"t' l.t~.i:lt p'o; atotatt:It §fH~?(l'"! .·"\).N.X.·~fli~>u.l d -lfll<~ni!t:cs 31413-41 33 3 4333 .tod ht· .;Uld Cie ":lfdy 1141., !'t>bl <1.1\' st&~';'1(\n~l tx rark :;~-';tcm: 11133,r434,133,43 in~pt:·t:tl(lfl iJtcniii:~J and ., 4 , 33, •,v1~k p;•Jt(';vt)b p8,..3(3 iat::.iwU~· i.,.:Ort~i~tt:t·,t 3413, 141. 4 , 413, 6 3341331 ;~dJru.-.h(.!(i lillh•i\·, :.kn.:ut}t-t!'lllflti-._t~! t~f dt-pmt~l1!;lltd l t),n,::U~tl.f: ti'J,;: i) ;:J'&I.-i"Ui-d la, tot tsitetii,.1 333; ~() 3'1331 4 ,373-13 ,4333 343 !"i''St'(!-IHC:: h~l/.-{IH'h\ S>nid 34314113' 3 31333, ;)$ d h-.'1(:W C::' 3fWff' ~\.-:!rY 31.3 4 3' .33,313-‘ 4433 iH 3tmF,t"i:nt~ \Yt""ll ,14 3 3333 3331 3 3113.373 ',tor mo11itorHtg :t4 -:t' ;;p-_i f~-..':",0-!I~CCS. !!_«;.33 313` :;-;!.,.:!13 tn,;cir , 01, :'n..;ure th-:;o eHt.•i:ti\·tnt·:-~~ 1~f 31,3 33 . 1 331331', ,\pj)tOj:dt\ld\' lu3. 333 r:m~di;t! ~ctk,r.o; l#kcn 3Lq PARD crit:V l'ARD pi!(N:~ >tik\) g14E1 f"f'~ 1 /r1Hll at: itt,totrttla iUdi flHJI~!\n<:"' 111,13414. 33 1~-"" Cre;ltC ;;, c.ontrali;"cd ! Floon0 tiiitenfor 4l1',3 33-; CHI.:':-;>~ t:fte(t·,"\ 333 3'3. 3. ~nn tii4 "·-·~-¥----~'"- Its cr:·k-r ~a ~XT<'::dtt• If% i'1:10 ('~ntnnu~ t oriii nue ti1~ ph"\:~ gn>un\t (+Li mr Sonertiber JO, JR I 4 ;h:1l l'i\RD kli£4 !m:; ait "·zpl,1;;:;mt .1 r•- nl P1 ,41,1„ra. or; 10 0o'atit. ,., ith thr: IJW)!r>:d ::i111d:, Bt"~:in prcurp;:iii\•f u:rn:1~1 LTA-v.:1. 1 Ph-mite:kJ 2014 :)nt,t;ra~:l 0:aa4.7., uaJ Sait!ty Sake2, tl lra:n~n~~ ar~d {:Hf1 V~tL:· t trr t2.. eyed r:~:nitnr reuatio ih ::Jdd~~i .. -,r;;;! 1f·1ini:·•& a_:; tJ:t'Ctt.ilh;.1[) r~··T 1lvnr,e;:..~ c-I ra; et t1,4:4;, ~o crH-;nrt: t~1:ri!irin;; icub 'lpJn:·prbtdy Vllil ntuld..11,1ropuntlitiy :,pp•w•. ;u .:\~r,arunl·r!ta\ \aiel\· il~ill<~HJ,, Thli.m~,;h :lJ,, o J,101 .;',1„.• ul .:\ H~l Ni( in ,..('. t Soriefiti ,i44 7014 hudgr.:l upp apprD I 1/at prrl·rt:.~::..., :.-cql.lt~St hdnJin!.!. k, to support :;uJ>port pa 1.ncpr~ttn:K·nt 1c"p;:,rt1n.:rit cu;:(1.0(of !k:dth aml Salt!) lkn;p.Jh>ilcll (I. £Hl'k€~r Tie 'ih inlort mon! is is [k}'.-lfl!.!l\'JJ! l'Plilmi!IC'd lO t'!lSHrill~,; LT11»11j.10tit tur4 ,;md rnTtJlinna! l}7ciltltc. Ihntitig p;llk' arc '<:lfi: fadli1ll' ... *re Vitt f(;r tni Jd to CHJ(i\'. lin· tO eniov, <:<)rtipldh•ll i d•<>v•; u~li()fl r of the 0.; L sa.1111)VQ ;36:11:511 \viii alhn.- p!;m V+,111 tm:.:r rb !. <;>i~t;m! DiH~<::tnr A.ssisatiiiat Office of the City City Auditor Auditor 9 PARD Patron PARD Patron Safety Safety Audit, Audit, February 2014 65 65