State of Texas and Texas Department of Transportation v. Gregory Day and Marla Gay Day, Individually and as Legal Representatives of the Estate of Chrissy Tennille Day

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-02-177 CV ____________________ STATE OF TEXAS AND TEXAS DEPARTMENT OF TRANSPORTATION, Appellants V. GREGORY DAY AND MARLA GAY DAY, INDIVIDUALLY AND AS LEGAL REPRESENTATIVES OF THE ESTATE OF CHRISSY TENNILLE DAY, Appellees On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 20698 OPINION The State of Texas and the Texas Department of Transportation ("TxDOT") filed this interlocutory appeal from the trial court's denial of a plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2002). Plaintiffs, Gregory Day and Marla Gay Day, individually and as legal representatives of the estate of Chrissy Tennille Day ("Days"), allege TxDOT's negligence caused an automobile collision. A vehicle driven by Marla Day was broadsided as she turned off F.M. 1007 onto Highway 96. The Days' daughter, Chrissy Tennille Day, was killed in the accident. Marla Day was seriously injured. The Days allege that the intersection where the collision occurred was unreasonably hazardous and was the scene of previous accidents, some fatal, and that TxDOT had actual notice of the hazardous condition but failed to install traffic lights, four-way traffic control devices or reduce the speed limit. The Days also allege TxDOT failed to implement policies and standards regarding minimum sight and stopping distances at the intersection. TxDOT moved to dismiss the Days' claims. TxDOT argues the alleged negligent acts -- the selection of safety features and traffic control devices, the design of the roadway, and the determination of the appropriate speed limit -- are all discretionary acts for which the State retains immunity from suit under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 1997). Sovereign immunity protects the government from suit unless it consents to be sued. See Gonzalez v. Heard, Goggan, Blair & Williams, 923 S.W.2d 764, 765 (Tex. App.--Corpus Christi 1996, writ denied); see also City of Arlington v. Whitaker, 977 S.W.2d 742, 745 (Tex. App.--Fort Worth 1998, pet. denied). The trial court lacks jurisdiction to consider a claim when sovereign immunity has been retained. See State ex rel. State Dep't of Highways and Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); see also County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). The Texas Tort Claims Act waives sovereign immunity under certain circumstances. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (2) (Vernon 1997). The legislature has specifically provided that immunity is not waived for: (1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of a discretionary action of the governmental unit; (2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable period of time after notice; or (3) the removal or destruction of a traffic or road sign, signal, or warning device by a third person unless the governmental unit fails to correct the removal or destruction within a reasonable period of time after actual notice. See Tex. Civ. Prac. & Rem. Code Ann. § 101.060 (a) (Vernon 1997); see also Gonzalez, 82 S.W.3d at 326. Furthermore, immunity is not waived if the action for which the State or its agency is sued falls within the State's discretionary policy functions; and whether an action is a discretionary policy function is an issue of law for the court. See Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (2) (Vernon 1997); see also State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999). Decisions relating to highway design and to installation of appropriate safety features are discretionary policy decisions. See Gonzalez, 82 S.W.3d at 326. This court recently applied these sovereign immunity principles in Texas Dep't of Transp. v. Bederka, 36 S.W.3d 266 (Tex. App.--Beaumont 2001, no pet.), where TxDOT allegedly failed to conduct proper traffic studies, failed to erect additional or different traffic control signals, and failed to remedy a dangerous condition created by existing traffic control signals or signs. Id. at 269. The plaintiffs in that case contended that their claims fell within the "unless" clause of section 101.060 (a) (2), because TxDOT failed to correct the absence, condition, or malfunction of a traffic sign or signal after notice. Id. at 270. This court held there was no waiver of sovereign immunity regarding the decision to install particular traffic signals, regardless of whether TxDOT received notice of dangerous conditions. Id. at 271. ("The selection of the device employed is not its condition."). See also Ihlo v. State, 71 S.W.3d 494, 496 (Tex. App.--Austin 2002, no pet.)(immunity is waived for absence of warning sign only if absence is due to disappearance of installed sign or failure to install a sign after governing body authorized its installation.). The petition attempts to impose liability on TxDOT for its failure to place certain specific traffic control devices and its failure to lower the speed limit, discretionary decisions for which immunity is not waived under section 101.060 (a)(1). Section 101.060(a)(2) does not apply where there is no claim the sign or signal either (1) was unable to convey the intended traffic control information or (2) conveyed traffic information other than what was intended. See Dep't of Transp. v. Garza, 70 S.W.3d 802, 807 (Tex. 2002). And the setting of an appropriate speed limit is also a matter of governmental discretion for which sovereign immunity has not been waived under the Texas Tort Claims Act. See id. at 808; see also Bellnoa v. City of Austin, 894 S.W.2d 821, 827 (Tex. App.--Austin 1995, no writ). The Days further argue the trial court has jurisdiction because they allege a negligent implementation of inviolable sight distance standards. The Days submitted to the trial judge an expert's report which concluded that TxDOT did not comply with specified sight distances for the type of intersection in question. The engineer examined the intersection and relied upon the specifications set out in the publication A Policy on Geometric Design of Highways and Streets--1990, prepared and published by the American Association of State Highway and Transportation Officials (AASHTO), which include sight distance specifications for safe stopping. The engineer's report concludes that neither a driver stopped at the stop sign on F.M. 1007 nor a driver approaching the intersection on Highway 96 would have the minimum sight distance required by AASHTO. The AASHTO manual does not create a mandatory duty with regard to the design of the intersection in question; the manual itself provides that the specifications do not create absolute, non-discretionary standards. And the evidence presented to the trial judge shows that the design of this highway was completed in 1975, while the AASHTO manual carries the date 1990. The State had discretion to design the highway contrary to the specifications set out in the AASHTO manual, and therefore retains immunity for the alleged failure to implement the manual's sight distance specifications. See generally State Dep't of Highways and Pub. Transp. v. King, 808 S.W.2d 465, 466 (Tex. 1991). The trial court erred in denying TxDOT's motion to dismiss for want of jurisdiction. The ruling of the trial court is reversed, and judgment is rendered dismissing the case for lack of jurisdiction. REVERSED AND RENDERED. PER CURIAM Submitted on October 30, 2002 Opinion Delivered November 14, 2002 Do Not Publish Before Walker, C.J., Burgess and Gaultney, JJ.