The Texas Supreme Court has reversed a split Austin Court of Appeals decision allowing a Texas Tort Claims Act case against the City of Austin to proceed based on a waiver of governmental immunity.
The City of Austin v. Irene Quinlan (No. 22-0202; delivered June 2, 2023) arose from a premises liability claim brought against the City and the South Congress restaurant Güero’s. When exiting the restaurant, plaintiff missed the step between the sidewalk and the street and fell. She sued the City and the restaurant asserting premises liability and joint-enterprise. After three rounds of pleading, the City filed a plea to the jurisdiction, asserting governmental immunity. Plaintiff filed a fourth amended pleading claiming that the City was negligent in maintaining the sidewalk and allowing the restaurant to place tables, chairs, and potted plants on the sidewalk in a way that obstructed her view of the street. She further alleged that the City violated a non-delegable duty under the Transportation Code to make the sidewalk safe and negligently failed to enforce the permit requirements allowing Güero’s to operate the outdoor café on the sidewalk. The trial court denied the City’s plea. By a 2-1 majority, the court of appeals affirmed, dividing over whether the City waived immunity with regard to plaintiff’s negligent implementation of its policy for outdoor cafes.
In an opinion by Justice Lehrmann, SCOTX reversed and dismissed the case for want of jurisdiction. The issue was whether the City breached its duty under the Tort Claims Act that a premises owner owes to a licensee, that is, to remediate an unreasonably dangerous condition of real property that caused the plaintiff’s injury. § 101.021(2), CPRC. To show that the City waived immunity under the Act, however, plaintiff had to allege facts showing that the City “fail[ed] to act when no particular action is required by law” (citation omitted), the “discretionary-function exception” to waiver of immunity under the Act. § 101.056, CPRC. The question thus became “whether the City was legally obligated to ensure the restaurant’s compliance with the Agreement [to permit Güero’s to use of the sidewalk], which delegates to the restaurant the responsibility to maintain the permitted side-walk café. Absent such obligation, the Act’s discretionary-function exception forecloses an immunity waiver.”
The Court held that the discretionary-function exception applied and immunity was not waived. First, nothing in the permit agreement required the City to “monitor and enforce the restaurant’s maintenance obligations with respect to the operation of the sidewalk café.” While the agreement allowed the City to do so, it did not mandate it, and in fact the City nearly always relies on the restaurant to take care of maintenance. Plaintiff thus failed to show a fact issue, as the court of appeals concluded, that the City negligently failed to implement a policy it was not obligated to implement. Second, the fact that the City “controlled” the sidewalk in a general sense, that issue goes to the premises liability claim, not the discretionary-function threshold question. “Control” was thus irrelevant at this point at this point in the litigation. Third, plaintiff’s claim that the City should have ordered the restaurant to construct a safety railing, separating the immune “design” function from the “maintenance” function, likewise failed because the City had no legal obligation to make the restaurant do that, regardless of whether it involved “design” or “maintenance.” The statute makes no distinction and neither did the Court.
As to plaintiff’s Transportation Code argument, the Court found that the City’s permit program for sidewalk cafes, which is specifically authorized by § 316.004, complied with the statute and that plaintiff did not dispute that. Instead, plaintiff alleged that the City owed a non-delegable, non-discretionary duty under the Code to keep the sidewalk safe from a “dangerous condition on the street or sidewalk” pursuant to § 316.021. The Court poured cold water on this argument as well, noting that the statute doesn’t say any such thing and that if plaintiff’s interpretation was correct, a different section (§ 316.009) recognizing the right of a city to “abate an unlawful obstruction or use of a municipal street” would be rendered meaningless. In short, the statute “allows municipalities to delegate the maintenance of sidewalk cafes to permit holders, and the jurisdictional facts pled here indicate that the City did so.” Moreover, neither the agreement nor a city ordinance imposed any duty on the City to intervene.
Every case in which the Court decides against waiver of immunity is a victory for taxpayers. That’s why we try to write up as many of these Tort Claims Act and other sovereign immunity cases as we can spot. We beat this drum all the time and will go on beating it. The point of sovereign immunity is to protect the public fisc by barring taxpayers from suing themselves. Every chink in that armor comes at a price for all of us.
