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.
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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.
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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
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ed
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itt,totrttla iUdi
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A.ssisatiiiat
Office of the City
City Auditor
Auditor 9 PARD Patron
PARD Patron Safety
Safety Audit,
Audit, February 2014
65
65
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
Combined Opinion