In a decision that explores the boundary between a municipality’s governmental and proprietary functions, the Third Court of Appeals has held that the provision of street lighting by a city’s public utility is a governmental function closely related to “street construction and design” and “regulation of traffic.” Consequently, the court ruled that the city has governmental immunity from a wrongful death action alleging that inadequate lighting proximately caused the plaintiff’s death.
City of Austin, and City of Austin d/b/a Austin Energy v. Findley (No. 03-21-00015-CV) arose from an accident in which the plaintiff was struck by a train while walking at night next to the railroad tracks near East 5th Street in Austin. According to the plaintiff’s friend, who was walking alongside her, they did not hear the approaching train over loud music from an adjacent bar. A panel on the train struck the plaintiff, who later died of her injuries. Her heirs brought a wrongful death action against the city, alleging that the city negligently operated and maintained a public utility because it failed to install adequately lighting in the area of the accident, under § 101.021 of the Tort Claims Act (TTCA). The city raised a plea to the jurisdiction based on governmental immunity. The plaintiffs then dropped their premises claim under the TTCA and alleged that the city had no immunity because the operation of a public utility is a proprietary function by statute. The trial court denied the city’s plea to the jurisdiction, and the city took an interlocutory appeal.
The court of appeals reversed and rendered in favor of the city. In a memorandum opinion, the court held that the TTCA’s inclusion of “the operation and maintenance of a public utility” in the list of proprietary functions to which immunity does not apply refers to the provision of electric power, not to traffic lighting. Instead, the court pointed to the TTCA’s list of governmental functions, which specifies 36 items, including “street construction and design” and “regulation of traffic.” Determining that the “real substance” of the plaintiffs’ claims involve “the City’s decisions regarding how many streetlights to install, what type of light fixtures to employ, and the spacing of lights,” the court concluded that street lighting is so “closely related to or necessary for the performance” of the city’s governmental activities that it falls under the TTCA. In so ruling, the court relied on the testimony of an Austin Energy employee, who explained that the utility has no responsibility for pedestrian lighting, just the design and installation of street lighting as part of the design and operation of the streets themselves.
Policing the boundaries of governmental immunity is a critical responsibility of the courts, and the court of appeals did it in this case despite the tragic nature of the circumstances in the case. While there are elements in contemporary partisan politics that desire to make local governments bleed in any way that they can, this line of thinking is both fiscally irresponsible and undermines the constitutional distribution of authority between state and local governments. Local governments perform the most basic functions necessary to an ordered society. Every time we bash them for it and load them with new liability, we tear another hole in the social fabric and, by the way, impose a hidden tax increase on everybody. This is not sustainable policy.