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’ BRIEF

Appeal from the 98th Judicial District Court of Travis County, Texas

Cause No. D-1-GN-14-004391

Sean E. Breen

State Bar No. 00783715

sbreen@howrybreen.com

HOWRY BREEN & HERMAN, LLP

1900 Pearl Street

Austin, Texas 78705-5408

Tel. (512) 474-7300

Fax (512) 474-8557

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

Attorney for Appellees Jennifer Frame,

Greg Griffith, and Cheryl Burris

Attorney for Appellee Diana Pulido

ACCEPTED

03-15-00292-CV

6671739

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/26/2015 9:51:30 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/26/2015 9:51:30 PM JEFFREY D. KYLE Clerk
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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
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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
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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
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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
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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,3and 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.
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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.
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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.
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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.
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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.
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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

identified safety hazard. 19 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).
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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.
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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.).
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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 policyimplementation 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.
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.Addressingiri 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 

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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.
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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.
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 

follow-up inspections to ensure 

corrective action is taken 

We found no evidence that routine 

follow-up is conducted 

1V is 

The Safety Office is responsible for 

monitoring the implementation of the 

safety program to ensure compliance 

No Documentation needed to evaluate 

compliance with the safety program 

is not maintained in a central location 

SOURCE: PARD policies and OCA observations during the course of this audit, September-December 2013 

- 13 -

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

Appellees’ first amended petition, 39 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

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.
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, 

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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.
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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.
- 16 -

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.
- 17 -

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.
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 

- 18 -

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

57 Flynn, 228 S.W.3d at 658.

58 See CR 60.

59 CR 17, 60.

60 CR 56 (first image), 60 (second image).
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 

folly p inspections to ensure 

corrective action litaken 

round ria , .c1 c that routing 

follow-up is conducted 

The Safety Office is responsible for 

monitoring the implementatioof the 

safety program to ensure co rn pilance 

Documentation needed to evaluate 

compliance with the safety program 

: 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. 

- 19 -

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).
- 20 -

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.
- 21 -

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 below69 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.
- 22 -

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 policyimplementation 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 policyimplementation 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.”)
- 23 -

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)).
- 24 -

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
- 25 -

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.
- 26 -

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.
- 27 -

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.
cl;.,-. 

- 28 -

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

_______________________________

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
c12,, c,,. 

- 29 -

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

the software used to prepare this document.

_______________________________

Sean E. Breen
cl ?,, c ,, . 

- 30 -

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

Meghan L. Riley, Chief, Litigation

Chris Edwards, Assistant City

Attorney

chris.edwards@austintexas.gov

City of Austin-Law Department

P.O. Box 1546

Tel. (512) 974-2419

Fax (512) 974-1311

 Electronic service

□ In person

□ Registered mail, return receipt requested

□ Commercial delivery service

□ Facsimile

 Electronic mail

Attorneys for Defendant – Appellant

City of Austin

_______________________________

Sean E. Breen
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

2

Parks and Recreation Department Patron Safety Audit

conducted in February 2014 54–65
TAB 1 TAB 1 
CAUSE NO. D-1-GN-12-003557 

5/7/2014 10:19:24 AM 

Amalia Rodriguez-Mendoza 

District Clerk 

Travis County 

D-1-GN-12-003557 

JENNIFER FRAME, INDIVIDUALLY, AND 

AS PERSONAL REPRESENTATIVE OF THE 

ESTATE OF JOHN WILLIAM GRIFFITH, 

GREG GRIFFITH, CHERYL BURRIS and 

DIANA PULIDO 

vs. 

THE CITY OF AUSTIN AND JOSEPH 

LOUIS ROSALES 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

TRAVIS COUNTY, TEXAS 

53rdJUDICIAL DISTRICT 

PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, JENNIFER FRAME, Individually and as Personal Representative of the 

Estate of John William Griffith, GREG GRIFFITH, CHERYL BURRIS and DIANA PULIDO 

("Plaintiffs") and file this Original Petition against The City of Austin ("City") and Joseph Louis 

Rosales ("Rosales"), and in support thereof, would show the Court the following: 

DISCOVERY CONTROL PLAN 

Discovery shall be conducted under Level 3 pursuant to Rule 190 of the Texas Rules of 

Civil Procedure. The damages to the parties in the case 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 11

CAUSE NO. D-1-GN-12-003557 

5/7/2014 10:19:24 AM 

Amalia Rodriguez-Mendoza 

District Clerk 

Travis County 

D-1-GN-12-003557 

JENNIFER FRAME, INDIVIDUALLY, AND 

AS PERSONAL REPRESENTATIVE OF THE 

ESTATE OF JOHN WILLIAM GRIFFITH, 

GREG GRIFFITH, CHERYL BURRIS and 

DIANA PULIDO 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

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 

Estate of John William Griffith, GREG GRIFFITH, CHERYL BURRIS and DIANA PULIDO 

("Plaintiffs") and file this Original Petition against The City of Austin ("City") and Joseph Louis 

Rosales ("Rosales"), and in support thereof, would show the Court the following: 

DISCOVERY CONTROL PLAN 

Discovery shall be conducted under Level 3 pursuant to Rule 190 of the Texas Rules of 

Civil Procedure. The damages to the parties in the case 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-
Defendant CITY OF AUSTIN, is a home rule municipality existing under the laws of the 

State of Texas, and may be served, pursuant to Tex. Civ. Prac. & Rem. Code § 17.024, by 

serving its City Secretary at 301 West 2nd Street, Austin, Texas. 

Defendant, JOSEPH LOUIS ROSALES, is an individual residing in Austin, Texas and 

has been served and appeared through his attorney, Virginia Isabel Hermosa, Hermosa Law 

Firm, 503 West 17th Street, Suite 200, Austin, Texas 78701. 

Jennifer ("Jenny") Frame ("Frame") is the Personal Representative of the Estate of 

Decedent Colonel (Ret.) John William Griffith and Greg and Cheryl are the son and daughter of 

Col. John Griffith. In her representative capacity as Personal Representative for Griffith's Estate, 

Frame brings this survival action on behalf of the estate of John William Griffith for survival 

damages, including pre-death terror and pain, medical bills and funeral bills that his estate 

incurred as a result of the tragic but avoidable incident described below. In addition, as the 

Personal Representative for the Estate, Frame also brings this suit to recover damages for the 

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 and Greg Griffith are daughters and the son of 

Col. John William Griffith, and, as such, they are proper statutory wrongful death beneficiaries 

under Texas Civil Practice and Remedies Code § 71.004. The Frames bring this wrongful death 

suit in their individual capacity as the daughters and son of Col. John William Griffith for all the 

damages properly recoverable in a wrongful death suit. 

In addition, Jennifer Frame was bystander and an eye witness to the fatal incident in 

which her father was killed in the incident described below. Frame brings this suit in her 

-2- 

12 12

Defendant CITY OF AUSTIN, is a home rule municipality existing under the laws of the 

State of Texas, and may be served, pursuant to Tex. Civ. Prac. & Rem. Code § 17.024, by 

serving its City Secretary at 301 West 2nd Street, Austin, Texas. 

Defendant, JOSEPH LOUIS ROSALES, is an individual residing in Austin, Texas and 

has been served and appeared through his attorney, Virginia Isabel Hermosa, Hermosa Law 

Firm, 503 West 17th Street, Suite 200, Austin, Texas 78701. 

Jennifer ("Jenny") Frame ("Frame") is the Personal Representative of the Estate of 

Decedent Colonel (Ret.) John William Griffith and Greg and Cheryl are the son and daughter of 

Col. John Griffith. In her representative capacity as Personal Representative for Griffith's Estate, 

Frame brings this survival action on behalf of the estate of John William Griffith for survival 

damages, including pre-death terror and pain, medical bills and funeral bills that his estate 

incurred as a result of the tragic but avoidable incident described below. In addition, as the 

Personal Representative for the Estate, Frame also brings this suit to recover damages for the 

pain, suffering, and mental anguish that John William Griffith sustained as a result ofhis injuries 

and prior to his death. 

In addition, Jennifer Frame, Cheryl Burris and Greg Griffith are daughters and the son of 

Col. John William Griffith, and, as such, they are proper statutory wrongful death beneficiaries 

under Texas Civil Practice and Remedies Code § 71.004. The Frames bring this wrongful death 

suit in their individual capacity as the daughters and son of Col. John William Griffith for all the 

damages properly recoverable in a wrongful death suit. 

In addition, Jennifer Frame was bystander and an eye witness to the fatal incident in 

which her father was killed in the incident described below. Frame brings this suit in her 

-2-
individual capacity for the bystander damages and mental anguish that she has sustained as the 

result of being a bystander to the incident that caused her father's fatal injuries. 

Diane Pulido suffered serious and permanent injuries as a result of this incident and 

brings suit to recover her damages under applicable Texas law. 

JURISDICTION, VENUE AND NOTICE 

This court has subject matter jurisdiction over this action. Venue is proper in Travis 

County, Texas because, among several things, Travis County is where the incident occurred. 

Plaintiff alleges that the damages sustained by Plaintiffs in each capacity greatly exceed the 

minimal jurisdictional threshold limits of this Court. Plaintiffs have given all required notices to 

bring this action. Prior to the filing of this lawsuit, and within the time period prescribed from 

the date of the occurrence described in this petition, Plaintiffs presented notice of their claim to 

the proper representative of the City of Austin as required. Additionally, at all relevant times, 

Defendant City of Austin has had actual notice of Plaintiffs' injuries and damages through actual 

notice, as, e.g., the incident forming the basis of this action was investigated by the Austin Police 

Department and other city authorities in the discharge of official duties. As a result of that 

investigation The City of Austin acquired full, complete, and actual knowledge of the occurrence 

giving rise to Plaintiffs' cause of action and that Plaintiffs were asserting a claim based on the 

occurrence. 

FACTS AND CAUSES OF ACTION 

On or about May 7, 2012, Rosales was driving eastbound on West Cesar Chavez Street, 

in Austin, Travis County Texas. Col. John William Griffith, an 80 year old Veteran and 

beloved friend, father and grandfather, was walking with Jenny, one of his daughters, eastbound 

on the Hike and Bike trail near the location where North Lamar Blvd. crosses over West Cesar 

-3- 

1313 

individual capacity for the bystander damages and mental anguish that she has sustained as the 

result ofbeing a bystander to the incident that caused her father's fatal injuries. 

Diane Pulido suffered serious and permanent injuries as a result of this incident and 

brings suit to recover her damages under applicable Texas law. 

JURISDICTION, VENUE AND NOTICE 

This court has subject matter jurisdiction over this action. Venue is proper in Travis 

County, Texas because, among several things, Travis County is where the incident occurred. 

Plaintiff alleges that the damages sustained by Plaintiffs in each capacity greatly exceed the 

minimal jurisdictional threshold limits of this Court. Plaintiffs have given all required notices to 

bring this action. Prior to the filing of this lawsuit, and within the time period prescribed from 

the date of the occurrence described in this petition, Plaintiffs presented notice of their claim to 

the proper representative of the City of Austin as required. Additionally, at all relevant times, 

Defendant City of Austin has had actual notice of Plaintiffs' injuries and damages through actual 

notice, as, e.g., the incident forming the basis of this action was investigated by the Austin Police 

Department and other city authorities in the discharge of official duties. As a result of that 

investigation The City of Austin acquired full, complete, and actual knowledge of the occurrence 

giving rise to Plaintiffs' cause of action and that Plaintiffs were asserting a claim based on the 

occurrence. 

FACTS AND CAUSES OF ACTION 

On or about May 7, 2012, Rosales was driving eastbound on West Cesar Chavez Street, 

in Austin, Travis County Texas. Col. John William Griffith, an 80 year old Veteran and 

beloved friend, father and grandfather, was walking with Jenny, one of his daughters, eastbound 

on the Hike and Bike trail near the location where North Lamar Blvd. crosses over West Cesar 

-3-
Chavez Street. Diane Pulido was also walking along the trail when, suddenly and without 

warning, Rosales drove the 1995 Hyundai off of Cesar Chavez, over the curb and, along with 

objects that included a traffic warning sign installed by the City, struck John William Griffith 

and Diana Pulido as they were walking on the Trail. John William Griffith was seriously 

injured and later died from his injuries the next morning on May 8, 2012. Diana Pulido was 

seriously and permanently injured. At the time that Mr. Griffith was on the Hike and Bike trail, 

his daughter, Jenny, was walking with him and was a witness to the incident and narrowly 

escaped serious injury or death herself. Plaintiffs allege that Rosales was negligent, and that his 

negligence was a proximate cause of the incident, the death of Griffith, and the damages 

sustained by his Estate, the damages sustained by Frame in her individual capacity as a statutory 

wrongful death, the damages sustained by Frame in her individual capacity as an eye witness 

bystander to the horrendous incident which killed her father, and the damages sustained by 

Diana Pulido. But the danger facing Plaintiffs that afternoon should never have happened and 

never should have resulted in any death or injury in 2012. The danger of a vehicle jumping the 

curb and entering upon and travelling down the Hike and Bike Trail in that location was well 

known to the City for years before this tragedy. This death and damages would have been 

easily prevented if the City had simply implemented inexpensive construction and maintenance 

measures it previously identified and knew were needed 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 Trail at Lady Bird Lake ("Hike and Bike Trail") 

is owned, constructed, controlled and maintained by the City of Austin. The City markets and 

-4- 

1414 

Chavez Street. Diane Pulido was also walking along the trail when, suddenly and without 

warning, Rosales drove the 1995 Hyundai off of Cesar Chavez, over the curb and, along with 

objects that included a traffic warning sign installed by the City, struck John William Griffith 

and Diana Pulido as they were walking on the Trail. John William Griffith was seriously 

injured and later died from his injuries the next morning on May 8, 2012. Diana Pulido was 

seriously and permanently injured. At the time that Mr. Griffith was on the Hike and Bike trail, 

his daughter, Jenny, was walking with him and was a witness to the incident and narrowly 

escaped serious injury or death herself. Plaintiffs allege that Rosales was negligent, and that his 

negligence was a proximate cause of the incident, the death of Griffith, and the damages 

sustained by his Estate, the damages sustained by Frame in her individual capacity as a statutory 

wrongful death, the damages sustained by Frame in her individual capacity as an eye witness 

bystander to the horrendous incident which killed her father, and the damages sustained by 

Diana Pulido. But the danger facing Plaintiffs that afternoon should never have happened and 

never should have resulted in any death or injury in 2012. The danger of a vehicle jumping the 

curb and entering upon and travelling down the Hike and Bike Trail in that location was well 

known to the City for years before this tragedy. This death and damages would have been 

easily prevented if the City had simply implemented inexpensive construction and maintenance 

measures it previously identified and knew were needed 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 Trail at Lady Bird Lake ("Hike and Bike Trail") 

is owned, constructed, controlled and maintained by the City of Austin. The City markets and 

-4-
touts the Hike and Bike Trail as one of the Crown Jewels of Austin and publicizes that the Hike 

and Bike Trail sees 1.5 million visitors a year, with that number expected to 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 use 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 - a condition and danger that they did not reasonably expect to encounter. 

But it was a danger and peril that the City of Austin knew existed, never warned of and should 

have corrected and averted through simple construction and maintenance Instead, the City 

failed to safely construct and maintain the Trail for the worst reason possible — to save a little 

money. 

The City, including the Parks and Recreation Department, failed to maintain the Trail in a 

reasonably safe condition, failed to adequately warn of the unsafe condition and failed to fix or 

repair the dangerous condition of the Trail. The danger that killed and injured the Plaintiffs in 

2012 was nothing new or unknown to the City of Austin. In the 15 years before 2012, the City 

knew of at least 13 prior instances of vehicles dangerously travelling up over the curb and onto 

the Hike and Bike Trail in the same or substantially same location. Through nothing more than 

serendipity and dumb luck, some of those incidents involved no injuries to people using the 

Trail. But other incidents did involve contact with Trail users by vehicles or debris, or both, 

including one in 1999 when Gov. George W. Bush and part of his detail was struck by debris 

when a truck and trailer lost control at the same location. In that case, a truck travelling east 

along First Street running parallel to the Hike and Bike trail was pulling a trailer full of debris, 

including scraps of wood and chunks of concrete. The driver lost control. The trailer overturned. 

Debris went flying across the Hike and Bike Trail. Gov. Bush, accompanied by a Texas 

-5- 

15 15

touts the Hike and Bike Trail as one of the Crown Jewels of Austin and publicizes that the Hike 

and Bike Trail sees 1.5 million visitors a year, with that number expected to 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 use 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 - a condition and danger that they did not reasonably expect to encounter. 

But it was a danger and peril that the City of Austin knew existed, never warned of and should 

have corrected and averted through simple construction and maintenance. Instead, the City 

failed to safely construct and maintain the Trail for the worst reason possible - to save a little 

money. 

The City, including the Parks and Recreation Department, failed to maintain the Trail in a 

reasonably safe condition, failed to adequately warn of the unsafe condition and failed to fix or 

repair the dangerous condition of the Trail. The danger that killed and injured the Plaintiffs in 

2012 was nothing new or unknown to the City of Austin. In the 15 years before 2012, the City 

knew of at least 13 prior instances of vehicles dangerously travelling up over the curb and onto 

the Hike and Bike Trail in the same or substantially same location. Through nothing more than 

serendipity and dumb luck, some of those incidents involved no injuries to people using the 

Trail. But other incidents did involve contact with Trail users by vehicles or debris, or both, 

including one in 1999 when Gov. George W. Bush and part of his detail was struck by debris 

when a truck and trailer lost control at the same location. In that case, a truck travelling east 

along First Street running parallel to the Hike and Bike trail was pulling a trailer full of debris, 

including scraps of wood and chunks of concrete. The driver lost control. The trailer overturned. 

Debris went flying across the Hike and Bike Trail. Gov. Bush, accompanied by a Texas 

-5-
Department of Public Safety agent on a bicycle, happened to be jogging past. "I heard the noise, 

looked back, saw it start to tip and my instincts were to dive," he later told reporters. Bush 

ducked behind the bridge support and sustained only a scrape to his hip. The DPS agent was not 

as lucky; Staff Sgt. Roscoe Hughey had to be pulled from the rubble and hospitalized. There 

were other similar incidents between 1999 and before 2012, including contact with a pedestrian 

and pedestrian control devices by vehicles or debris. Yet, the City did nothing, despite policies 

that called for action. 

The City cannot possibly deny it was on notice of the dangerous condition and the 

undisputed need to construct and maintain protection as these incidents occurred. Concerned 

citizens even contacted the City to request protection and construction and maintenance to cure 

the peril. Chillingly, one citizen explicitly warned the City in 2005 that the very peril at this 

very location where this tragedy later occurred was "a pedestrian/runner fatality waiting to 

happen." In fact, that is exactly what the City did — wait for a fatality to happen. 

Moreover, as early as 2005, the Parks and Recreation Department identified the very 

hazard that ultimately killed and injured the Plaintiffs, and pursuant to policy, recognized the 

need for action to protect users of the Trail in that location and called for and supported the 

construction of a guardrail or barrier. Yet, it drug its heels and failed to act pursuant to policy 

already in place to construct and maintain a fix for the danger. In fact, less than two months 

before this incident, the PARD director noted "concerns keep coming up" and that citizens were 

asking why a barrier had not yet been installed on the North shore of Lady Bird Lake directly 

under Lamar Blvd., especially when one had been installed on the north side of Cesar Chavez for 

the bike path users. But none was constructed. Incredibly, the estimated $35,000 cost was cited 

as one reason it was not constructed. Shockingly and more repugnant, the fact that no one had 

-6- 

16 16

Department of Public Safety agent on a bicycle, happened to be jogging past. "I heard the noise, 

looked back, saw it start to tip and my instincts were to dive," he later told reporters. Bush 

ducked behind the bridge support and sustained only a scrape to his hip. The DPS agent was not 

as lucky; Staff Sgt. Roscoe Hughey had to be pulled from the rubble and hospitalized. There 

were other similar incidents between 1999 and before 2012, including contact with a pedestrian 

and pedestrian control devices by vehicles or debris. Yet, the City did nothing, despite policies 

that called for action. 

The City cannot possibly deny it was on notice of the dangerous condition and the 

undisputed need to construct and maintain protection as these incidents occurred. Concerned 

citizens even contacted the City to request protection and construction and maintenance to cure 

the peril. Chillingly, one citizen explicitly warned the City in 2005 that the very peril at this 

very location where this tragedy later occurred was "a pedestrian/runner fatality waiting to 

happen." In fact, that is exactly what the City did- wait for a fatality to happen. 

Moreover, as early as 2005, the Parks and Recreation Department identified the very 

hazard that ultimately killed and injured the Plaintiffs, and pursuant to policy, recognized the 

need for action to protect users of the Trail in that location and called for and supported the 

construction of a guardrail or barrier. Yet, it drug its heels and failed to act pursuant to policy 

already in place to construct and maintain a fix for the danger. In fact, less than two months 

before this incident, the PARD director noted "concerns keep coming up" and that citizens were 

asking why a barrier had not yet been installed on the North shore of Lady Bird Lake directly 

under Lamar Blvd., especially when one had been installed on the north side of Cesar Chavez for 

the bike path users. But none was constructed. Incredibly, the estimated $35,000 cost was cited 

as one reason it was not constructed. Shockingly and more repugnant, the fact that no one had 

-6-
been killed yet was cited as another reason. This ministerial failure to correct identified hazards 

and implement a policy of maintenance and construction of corrections and safeguards to protect 

patrons was a proximate cause of this incident. This was not an isolated incident. A failure to 

implement policies has plagued the City of Austin Parks and Recreation Department. In fact, the 

incident made the basis of this lawsuit was recently cited by the City Auditor as one example of 

delays by the PARD in addressing identified safety hazards: Addressing identified safety 

hazards is not discretionary — it is mandatory and ministerial. The report found that PARD is not 

managing safety hazards effectively and there is limited assurance that hazards are promptly 

identified and corrected. The failure of the City to act on clear policy in place to protect people 

such as the Plaintiffs was negligence, gross negligence and a proximate cause of the devastating 

injuries here and is actionable. 

The acts and omissions in this matter and over the course of the previous 13 similar 

incidents are more than mere negligence — they are gross negligence. The acts and omissions of 

the City involved the subjective awareness of an extreme degree of risk, indicating conscious 

indifference to the rights, safety and welfare of others. Knowing about the danger and peril at 

issue for years, the City did nothing to warn or guard against it in what amounts to gross 

negligence and willful, wanton and malicious inaction. In short, the City of Austin knew about 

the peril, but its acts and omissions demonstrate that it simply did not care. 

PREMISES DEFECT 

Pleading further and in the alternative if necessary, Defendant City of Austin may be held 

to answer in a court of law for the conduct and occurrence as described above and incorporated 

1"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." 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 its patron safety policies. 

-7- 

17 17

been killed yet was cited as another reason. This ministerial failure to correct identified hazards 

and implement a policy of maintenance and construction of corrections and safeguards to protect 

patrons was a proximate cause of this incident. This was not an isolated incident. A failure to 

implement policies has plagued the City of Austin Parks and Recreation Department. In fact, the 

incident made the basis of this lawsuit was recently cited by the City Auditor as one example of 

delays by the PARD in addressing identified safety hazards. 1 Addressing identified safety 

hazards is not discretionary - it is mandatory and ministerial. The report found that PARD is not 

managing safety hazards effectively and there is limited assurance that hazards are promptly 

identified and corrected. The failure of the City to act on clear policy in place to protect people 

such as the Plaintiffs was negligence, gross negligence and a proximate cause of the devastating 

injuries here and is actionable. 

The acts and omissions in this matter and over the course of the previous 13 similar 

incidents are more than mere negligence - they are gross negligence. The acts and omissions of 

the City involved the subjective awareness of an extreme degree of risk, indicating conscious 

indifference to the rights, safety and welfare of others. Knowing about the danger and peril at 

issue for years, the City did nothing to warn or guard against it in what amounts to gross 

negligence and willful, wanton and malicious inaction. In short, the City of Austin knew about 

the peril, but its acts and omissions demonstrate that it simply did not care. 

PREMISES DEFECT 

Pleading further and in the alternative if necessary, Defendant City of Austin may be held 

to answer in a court of law for the conduct and occurrence as described above and incorporated 

1 "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." 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 its patron safety policies. 

-7-
here because the injuries and damages made the basis of this suit were caused by a premises 

defect and fall under a limited waiver of sovereign immunity from suits alleging personal injury 

or death caused by premises defects. 

SPECIAL DEFECT 

Pleading further and in the alternative if necessary, Defendant City of Austin may be held 

to answer in a court of law for the conduct and occurrence as described above and incorporated 

here because the injuries and damages were caused by a special defect and fall under a limited 

waiver of sovereign immunity from suits alleging personal injury or death caused by special 

defects. 

RECREATIONAL USE STATUTE 

Pleading further and in the alternative if necessary, Defendant City of Austin may be held 

to answer in a court of law for the conduct and occurrence as described above and incorporated 

here because the injuries and damages were caused by the City's breach of even the modest duty 

owed to Plaintiffs under the recreational use statute and fall under a limited waiver of sovereign 

immunity from suits alleging personal injury or death caused by that breach. 

DAMAGE S 

As a result of the acts and/or omissions set out, Griffith sustained serious injuries which 

resulted in his death. Griffith's death was not, however, instantaneous. Furthermore, as a direct 

result of Griffith's death, Jenny Frame, Cheryl Burris and Greg Griffith have sustained damages 

as well. Jenny Frame is also entitled to damages as a bystander who witnessed the needless and 

avoidable tragedy. Plaintiffs hereby make a claim for all past and future damages recoverable 

under Texas law and pursuant to the Wrongful Death Act and Survival Action and bystander 

claims in an amount within the jurisdictional limits of the Court and which the jury deems as 

-8- 

18 18

here because the injuries and damages made the basis of this suit were caused by a premises 

defect and fall under a limited waiver of sovereign immunity from suits alleging personal injury 

or death caused by premises defects. 

SPECIAL DEFECT 

Pleading further and in the alternative if necessary, Defendant City of Austin may be held 

to answer in a court of law for the conduct and occurrence as described above and incorporated 

here because the injuries and damages were caused by a special defect and fall under a limited 

waiver of sovereign immunity from suits alleging personal injury or death caused by special 

defects. 

RECREATIONAL USE STATUTE 

Pleading further and in the alternative if necessary, Defendant City of Austin may be held 

to answer in a court of law for the conduct and occurrence as described above and incorporated 

here because the injuries and damages were caused by the City's breach of even the modest duty 

owed to Plaintiffs under the recreational use statute and fall under a limited waiver of sovereign 

immunity from suits alleging personal injury or death caused by that breach. 

DAMAGES 

As a result of the acts and/or omissions set out, Griffith sustained serious injuries which 

resulted in his death. Griffith's death was not, however, instantaneous. Furthermore, as a direct 

result of Griffith's death, Jenny Frame, Cheryl Burris and Greg Griffith have sustained damages 

as well. Jenny Frame is also entitled to damages as a bystander who witnessed the needless and 

avoidable tragedy. Plaintiffs hereby make a claim for all past and future damages recoverable 

under Texas law and pursuant to the Wrongful Death Act and Survival Action and bystander 

claims in an amount within the jurisdictional limits of the Court and which the jury deems as 

-8-
just and fair, to include, but not limited to, the following: 

1. The conscious physical pain and mental anguish JOHN GRIFFITH experienced 

prior to his death, including the physical pain and mental anguish he experienced up to his 

untimely death; 

2. All reasonable and necessary medical expenses for any emergency care 

associated with the attempts to save the life of JOHN GRIFFITH, and all reasonable and 

necessary funeral and burial expenses of JOHN GRIFFITH; 

3. The pre-death terror JOHN GRIFFITH experienced; 

4. The mental anguish, including emotional pain, torment and suffering that the 

Plaintiff has experienced from the death of JOHN GRIFFITH; 

5. The pecuniary loss Plaintiffs have suffered and will suffer, meaning the loss of 

care, maintenance, support, services, advice, attention, counsel, guidance, protection and 

reasonable contribution of pecuniary value that would, in reasonable probability, have been 

received by the Plaintiffs from the Decedent, JOHN GRIFFITH; 

6. The loss of society and companionship representing the positive benefits flowing 

from the love, comfort, companionship and society that the Plaintiffs would have, with 

reasonable probability, experienced if JOHN GRIFFITH had lived; 

7. The loss of inheritance and loss of addition to estate; and 

8. As a direct and proximate result of defendants' negligence, as described above, 

Plaintiff Jenny Frame has suffered severe mental pain and suffering since the perception of the 

occurrence made the basis of this suit and of the injuries and harm and death sustained by her 

father. 

As a result of the acts and/or omissions set out, Pulido sustained serious injuries and 

-9- 

19 19

just and fair, to include, but not limited to, the following: 

1. The conscious physical pain and mental anguish JOHN GRIFFITH experienced 

prior to his death, including the physical pain and mental anguish he experienced up to his 

untimely death; 

2. All reasonable and necessary medical expenses for any emergency care 

associated with the attempts to save the life of JOHN GRIFFITH, and all reasonable and 

necessary funeral and burial expenses of JOHN GRIFFITH; 

3. The pre-death terror JOHN GRIFFITH experienced; 

4. The mental anguish, including emotional pain, torment and suffering that the 

Plaintiff has experienced from the death of JOHN GRIFFITH; 

5. The pecuniary loss Plaintiffs have suffered and will suffer, meaning the loss of 

care, maintenance, support, services, advice, attention, counsel, guidance, protection and 

reasonable contribution of pecuniary value that would, in reasonable probability, have been 

received by the Plaintiffs from the Decedent, JOHN GRIFFITH; 

6. The loss of society and companionship representing the positive benefits flowing 

from the love, comfort, companionship and society that the Plaintiffs would have, with 

reasonable probability, experienced if JOHN GRIFFITH had lived; 

7. The loss of inheritance and loss of addition to estate; and 

8. As a direct and proximate result of defendants' negligence, as described above, 

Plaintiff Jenny Frame has suffered severe mental pain and suffering since the perception of the 

occurrence made the basis of this suit and of the injuries and harm and death sustained by her 

father. 

As a result of the acts and/or omissions set out, Pulido sustained serious injuries and 

-9-
incurred medical expenses for the necessary care of those injuries. Diana Pulido's injuries 

include, but are not limited to, a head injury, fractured tibia and fibula, a fractured shoulder, a 

fractured pelvis, a fractured clavicle and multiple lacerations and contusions. She has required 

multiple surgeries and extensive rehabilitation. With reasonable medical probability, Pulido 

will continue to incur medical expenses for the necessary treatment of her injuries in the future. 

In addition, Pulido has suffered loss of earning capacity, physical pain, mental anguish, physical 

impairment, and disfigurement resulting from her injuries and is expected to suffer 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 the Court. 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be cited 

to appear and answer herein, that after trial and hearing, Plaintiff have and recover all of the 

damages prayed for above, and for any and further relief to which Plaintiff may be justly entitled. 

Respectfully submitted, 

HOWRY BREEN & HERMAN, L.L.P. 

/s/ Sean E. Breen 

Sean E. Breen 

sbreen@howrybrecti.com State Bar No. 00783715 

1900 Pearl Street 

Austin, Texas 78705-5408 

(512) 474-7300 

(512) 474-8557 FAX 

-10- 

20 20

incurred medical expenses for the necessary care of those injuries. Diana Pulido's injuries 

include, but are not limited to, a head injury, fractured tibia and fibula, a fractured shoulder, a 

fractured pelvis, a fractured clavicle and multiple lacerations and contusions. She has required 

multiple surgeries and extensive rehabilitation. With reasonable medical probability, Pulido 

will continue to incur medical expenses for the necessary treatment of her injuries in the future. 

In addition, Pulido has suffered loss of earning capacity, physical pain, mental anguish, physical 

impairment, and disfigurement resulting from her injuries and is expected to suffer 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 the Court. 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendants be cited 

to appear and answer herein, that after trial and hearing, Plaintiff have and recover all of the 

damages prayed for above, and for any and further relief to which Plaintiff may be justly entitled. 

Respectfully submitted, 

HOWRY BREEN & HERMAN, L.L.P. 

/s/ Sean E. Breen 

Sean E. Breen 

sbreen(i],howrybreen.com 

State Bar No. 00783715 

1900 Pearl Street 

Austin, Texas 78705-5408 

(512) 474-7300 

(512) 474-8557 FAX 

-10-
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(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 

I certify that May 7, 2014, I sent a true and complete copy of this pleading via electronic 

filing, certified U.S. mail, regular U.S. mail and/or by facsimile to the following persons in 

accordance with the Texas Rules of Civil Procedure: 

Virginia I. Hermosa 

Hermosa Law Firm 

503 West 17thSt, Suite 200 

Austin, Texas 78701 

/s/ Sean E. Breen 

Sean Breen 

21 

-11- 

21

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 

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 

I certify that May 7, 2014, I sent a true and complete copy of this pleading via electronic 

filing, certified U.S. mail, regular U.S. mail and/or by facsimile to the following persons in 

accordance with the Texas Rules of Civil Procedure: 

Virginia I. Hermosa 

Hermosa Law Firm 

503 West 17th St, Suite 200 

Austin, Texas 78701 

-11-

/s/ Sean E. Breen 

Sean Breen 
TAB 2 TAB 2 
City of Austin 

_ /.,,,---: 4-" ,:r-. „.„,.1:,.,„ 

N .. I. ., /.. 

Parks and Recreation 

Department (PARD) Patron 

Safety Audit 

February 2014 

A Report to the 

Austin City Council 

Mayor 

Lee Leffingwell 

Mayor Pro Tern 

Sheryl Cole 

Council Members 

Chris Riley 

Mike Martinez 

Kathie Tovo 

Laura Morrison 

Bill Spelman 

Office of the 

City Auditor 

...„ „„..,.. . i . 

:„. 

City Auditor 

Kenneth J. Mory 

CPA, CIA, CISA, CRMA 

Deputy City Auditor 

Come E. Stokes 

CIA, CGAP, CFE 

54

City of Austin 

A Report to the 

Austin City Council 

Mayor 

Lee Leffingwell 

Mayor ProTem 

Sheryl Cole 

Council Members 

Chris Riley 

Mike Martinez 

Kathie Tovo 

Laura Morrison 

Bill Spelman 

Office of the 

City Auditor 

City Auditor 

Kenneth J. Mary 

CPA, CIA, CISA, CRMA 

Deputy City Auditor 

Corrie E. Stokes 

CIA, CGAP, CFE 

Parks and Recreation 

Department (PARD) Patron 

Safety Audit 

February 2014 

EXHIBIT 

f B - ·-
AUDIT NUMBER: AU13028 

TABLE OF CONTENT 

BACKGROUND 1 

OBJECTIVE, SCOPE, AND METHODOLOGY 1 

AUDIT RESULTS 2 

Appendix 

Appendix A: Management .. . ... ...... . .. .... ... ....... .... . .. ..... . .. . 8 

Exhibits 

Exhibit 1: Implementation of Hazard Identification Policies 3 

Exhibit 2: Implementation of Patron Safety Hazard Correction Policies 4 

Exhibit 3: Concrete Safety Hazard at Dougherty Arts Center. .. . . .... .... . ...... 5 

Exhibit 4: Play Area at the Dougherty Arts Center 5 

Exhibit 5: Minor Hazard at Dougherty Arts Center 6 

GOVERNMENT AUDITING STANDARDS COMPLIANCE 

We conducted this performance audit in accordance with Generally Accepted Government Auditing 

Standards. Those standards require that we plan and perform the audit to obtain sufficient, 

appropriate evidence to provide a reasonable basis for our findings and conclusions based on our 

audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. 

AUDIT TEAM 

Niki Raggi, CGAP, CRMA, CICA, Assistant City Auditor 

Christopher Shrout, CGAP, Auditor-in-Charge 

Felipe Garcia-Colon, CGAP, Auditor 

Office of the City Auditor 

Austin City Hall 

phone: (512)974-2805 

email: oca_auditor@austintexas.gov 

website: http://www.austintexas.gov/auditor 

Copies of our audit reports are available at lIttp //www rav,tintexas,govia dctor/icports 

1 

tat) 

Printed on recycled paper 

Alternate formats available upon request 

5555 

AUDIT NUMBER: AU13028 

BACKGROUND ............................................................................................................................. 1 

OBJECTIVE, SCOPE, AND METHODOLOGY ..................................................................................... 1 

AUDIT RESULT$ ............................................................................................................................ 2 

Appendix 

Appendix A: Management Response ..................................................................................................... 8 

Exhibits 

Exhibit 1: Implementation of Hazard Identification Policies ................................................................. 3 

Exhibit 2: Implementation of Patron Safety Hazard Correction Policies .............................................. .4 

Exhibit 3: Concrete Safety Hazard at Dougherty Arts Center ................................................................ 5 

Exhibit 4: Play Area at the Dougherty Arts Center ................................................................................. S 

Exhibit 5: Minor Hazard at Dougherty Arts Center ................................................................................ 6 

GOVERNMENT STANDARDS COMPliANCE 

We conducted this performance audit in accordance with Generally Accepted Government Auditing 

Standards. Those standards require that we plan and perform the audit to obtain sufficient, 

appropriate evidence to provide a reasonable basis for our findings and conclusions based on our 

audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. 

TEAM 

Niki Raggi, CGAP, CRMA, CICA, Assistant City Auditor 

Christopher Shrout, CGAP, Auditor-in-Charge 

Felipe Garcia-Colon, CGAP, Auditor 

Office of the Auditor 

Austin City Hal! 

phone: (512)974-2805 

ernail: oca_auditor@austintexas.gov 

website: http:/ /www.austintexas.gov/auditor 

Copies of our audit reports are available at 

0 

Printed on recycled paper 

Alternate formats available upon request 
February 2014 

Mayor and Council, 

I am pleased to present this audit on patron safety at Parks and Recreation 

facilities. 

Audit Report 

Highlights 

Why We Did This Audit 

This audit was conducted 

as part of the Office of 

the City Auditor's (OCA) 

FY 2014 Strategic Audit 

Plan, 

What We Recommend 

The Director should 

allocate the necessary 

skills and resources to 

appropriately implement 

the PARD patron safety 

program and monitor its 

effectiveness. 

BACKGROUND 

This audit was placed on the Fiscal Year 2014 Strategic Audit Plan as result of a risk 

assessment performed by the Office of the City Auditor that identified PARD as 

the City department with the highest risks related to managing the safety of 

patrons at its facilities, 

PARD is responsible for a total of 330 locations. PARD facilities include, but are 

not limited to, parks, recreation centers, senior centers, cultural centers, pools, 

splash pads, and cemeteries. PARD staff estimates over five million patrons visit 

their facilities annually. 

OBJECTIVE AND SCOPE 

The objective of the audit was to determine if PARD has an effective system to 

identify, address, and mitigate risks to patron safety, 

The audit scope included PARD patron safety activities for Fiscal Years 2012 and 

2013. 

WHAT WE FOUND 

While PARD management has developed and approved policies aimed at 

identifying and managing hazards related to patron safety, PARD executive 

management has not allocated the appropriate skills, structures, and resources to 

support the implementation of its patron safety policies. 

Key elements of the PARD patron safety program include requirements for hazard 

identification, data analysis, and hazard correction and monitoring. However, 

required annual safety audits are not consistently conducted, incidents and injury 

data is not thoroughly analyzed, and hazards identified are not monitored through 

correction. 

As a result, PARD is not effectively managing hazards related to patron safety and 

there is limited assurance that hazards identified are corrected promptly. 

We appreciate the cooperation and assistance we received from PARD staff during 

this audit. '

For more information on this or any 

of our reports, email 

oca_auditor@austintexas.goy Kenneth J. Mory, City A dit\O\ 

5656 

February 2014 

Audit Report 

Highlights 

Why We Did This Audit 

This audit was conducted 

as part of the Office of 

the City Auditor's (OCA) 

FY 2014 Strategic Audit 

Plan. 

What We Recommend 

The Director should 

allocate the necessary 

skills and resources to 

appropriately implement 

the PARD patron safety 

program and monitor its 

effectiveness. 

For more information on this or any 

of our reports, email 

oca_auditor@austintexas.gov 

Mayor and Council, 

I am pleased to present this audit on patron safety at Parks and Recreation 

facilities. 

BACKGROUND 

This audit was placed on the Fiscal Year 2014 Strategic Audit Plan as result of a risk 

assessment performed by the Office of the City Auditor that identified PARD as 

the City department with the highest risks related to managing the safety of 

patrons at its facilities. 

PARD is responsible for a total of 330 locations. PARD facilities include, but are 

not limited to, parks, recreation centers, senior centers, cultural centers, pools, 

splash pads, and cemeteries. PARD staff estimates over five million patrons visit 

their facilities annually. 

OBJECTIVE AND SCOPE 

The objective of the audit was to determine if PARD has an effective system to 

identify, address, and mitigate risks to patron safety. 

The audit scope included PARD patron safety activities for Fiscal Years 2012 and 

2013. 

WHAT WE fOUND 

While PARD management has developed and approved policies aimed at 

identifying and managing hazards related to patron safety, PARD executive 

management has not allocated the appropriate skills, structures, and resources to 

support the implementation of its patron safety policies. 

Key elements of the PARD patron safety program include requirements for hazard 

identification, data analysis, and hazard correction and monitoring. However, 

required annual safety audits are not consistently conducted, incidents and injury 

data is not thoroughly analyzed, and hazards identified are not monitored through 

correction. 

As a result, PARD is not effectively managing hazards related to patron safety and 

there is limited assurance that hazards identified are corrected promptly. 

We appreciale the cooperation and assistance we received from PARD staff during 

this ;;tudit. / 

' 

i I / 

1 If lj .............. / ' ! ' t__ .... ,.-\ -~ : ' \ ,/.--- ! / \~--- ... .........,.....,,__ .!" 

Kenne~h J. Mory, City A~~ \ ) ' ,• 
BACKGROUND 

This audit was placed on the Fiscal Year (FY) 2014 Strategic Audit Plan as result of a risk assessment 

performed by the Office of the City Auditor (OCA) that identified PARD as the City department with 

the highest risks related to managing the safety of patrons at its facilities. 

PARD is responsible for a total of 330 locations. PARD facilities include, but are not limited to, parks, 

recreation centers, senior centers, cultural centers, pools, splash pads, and cemeteries. PARD staff 

estimates over five million patrons visit their facilities annually. 

OBJECTIVE, SCOPE, AND METHODOLOGY 

The PARD Patron Safety Audit was conducted as part of the OCA FY 2014 Strategic Audit Plan, as 

presented to the City Council Audit and Finance Committee. 

Objective 

The objective of the audit was to determine if PARD has an effective system to identify, address, and 

mitigate risks to patron safety. 

Scope 

The audit scope included PARD patron safety activities for Fiscal Years 2012 and 2013. Patron safety 

activities refer to measures taken by PARD to protect the public at department facilities. 

Methodology 

To accomplish our audit objectives, we performed the following steps: 

■ conducted a survey of 14 PARD division managers regarding patron safety efforts within PARD; 

■ assessed local media coverage related to patron safety at PARD facilities 

■ conducted interviews with PARD staff; 

■ reviewed safety industry practices; 

• analyzed department policies and procedures related to patron safety; 

• reviewed relevant claims and lawsuits against the City related to PARD; 

■ analyzed PARD incident and injuries databases; 

• reviewed safety inspection reports for PARD facilities; 

■ visited numerous PARD facilities including playgrounds, recreation centers, senior centers, and 

golf facilities; and 

• analyzed laws applicable to patron safety at municipal facilities. 

Office of the City Auditor 1 PARD Patron Safety Audit, February 2014 

5757 

This audit was placed on the Fiscal Year (FY) 2014 Strategic Audit Plan as result of a risk assessment 

performed by the Office of the City Auditor (OCA) that identified PARD as the City department with 

the highest risks related to managing the safety of patrons at its facilities. 

PARD is responsible for a total of 330 locations. PARD facilities include, but are not limited to, parks, 

recreation centers, senior centers, cultural centers, pools, splash pads, and cemeteries. PARD staff 

estimates over five million patrons visit their facilities annually. 

AND METHODOLOGY 

The PARD Patron Safety Audit was conducted as part of the OCA FY 2014 Strategic Audit Plan, as 

presented to the City Council Audit and Finance Committee. 

Objective 

The objective of the audit was to determine if PARD has an effective system to identify, address, and 

mitigate risks to patron safety. 

Scope 

The audit scope included PARD patron safety activities for Fiscal Years 2012 and 2013. Patron safety 

activities refer to measures taken by PARD to protect the public at department facilities. 

Methodology 

To accomplish our audit objectives, we performed the following steps: 

" conducted a survey of 14 PARD division managers regarding patron safety efforts within PARD; 

• assessed local media coverage related to patron safety at PARD facilities; 

'" conducted interviews with PARD staff; 

'" reviewed safety industry practices; 

"' analyzed department policies and procedures related to patron safety; 

• reviewed relevant claims and lawsuits against the City related to PARD; 

• analyzed PARD incident and injuries databases; 

• reviewed safety inspection reports for PARD facilities; 

'" visited numerous PARD facilities including playgrounds, recreation centers, senior centers, and 

golf facilities; and 

• analyzed laws applicable to patron safety at municipal facilities. 

Office of the City Auditor 1 PARD Patron Safety Audit, February 2014 
AUDIT RESULTS 

Finding: PARD has not allocated the appropriate skills, structures, and resources to 

support the implementation of its patron safety policies, As a result, PARD is not 

managing safety hazards effectively and there is limited assurance that hazards are 

promptly identified and corrected. 

According to the various safety industry practices we reviewed, organizations should have a system 

in place to provide reasonable assurance that key hazards are identified. Further, after detection, 

significant current and potential hazards should be prevented, corrected, or controlled in a timely 

manner. 

PARD has developed and approved policies aimed at identifying and managing hazards related to 

patron safety that are in line with the Commission for Accreditation of Park and Recreation Agencies 

(CAPRA) requirements. Specifically, per policies PARE) should: 

1. inspect, audit, and investigate all department property to identify hazards; 

2, gather and analyze relevant data to identify trends and make recommendations for corrective 

actions; and 

3. ensure that corrective actions are addressed and monitor PARD compliance with its safety 

program. 

However, based on our analysis and observations, executive management has not allocated the 

appropriate skills, structures, and resources to support the implementation of its patron safety 

policies. As a result, PARD is not managing safety hazards effectively and there is limited assurance 

that hazards identified are corrected promptly. 

PARD policies assign the responsibility of administering its patron and occupational safety programs 

to a Safety Office who should report directly to the department executive team. In practice, PARD 

does not have a Safety Office dedicated to administering these programs. In the absence of a Safety 

Office, patron safety responsibilities have been assigned to the department Occupational Health and 

Safety Coordinator, whose primary focus is worker safety and who organizationally reports to a 

Human Resource Supervisor within the Management Services division. In addition, PARD has a 

Certified Playground Coordinator who reports to the Maintenance Division Manager. 

The three sections below outline the disconnect between policies and implementation in each of the 

three hazard management areas identified above. 

1. Hazard Identification 

In order to timely identify safety hazards, PARD policies require periodic site inspections and annual 

safety audits to be conducted on each PARD facility. Additionally, the City's Child Care ordinance 

requires that each facility that hosts recreational programs undergo an annual safety inspection. 

As shown in Exhibit 1, safety inspections are not consistently conducted, documented, and 

monitored'as required. 

Office of the City Auditor 2 PARD Patron Safety Audit, February 2014 

5858 

resources to 

As a result, PARD is not 

are 

According to the various safety industry practices we reviewed, organizations should have a system 

in place to provide reasonable assurance that key hazards are identified. Further, after detection, 

significant current and potential hazards should be prevented, corrected, or controlled in a timely 

manner. 

PARD has developed and approved policies aimed at identifying and managing hazards related to 

patron safety that are in line with the Commission for Accreditation of Park and Recreation Agencies 

(CAPRA) requirements. Specifically, per policies PARD should: 

1. inspect, audit, and investigate all department property to identify hazards; 

2. gather and analyze relevant data to identify trends and make recommendations for corrective 

actions; and 

3. ensure that corrective actions are addressed and monitor PARD compliance with its safety 

program. 

However, based on our analysis and observations, executive management has not allocated the 

appropriate skills, structures, and resources to support the implementation of its patron safety 

policies. As a result, PARD is not managing safety hazards effectively and there is limited assurance 

that hazards identified are corrected promptly. 

PARD policies assign the responsibility of administering its patron and occupational safety programs 

to a Safety Office who should report directly to the department executive team. In practice, PARD 

does not have a Safety Office dedicated to administering these programs. In the absence of a Safety 

Office, patron safety responsibilities have been assigned to the department Occupational Health and 

Safety Coordinator, whose primary focus is worker safety and who organizationally reports to a 

Human Resource Supervisor within the Management Services division. In addition, PARD has a 

Certified Playground Coordinator who reports to the Maintenance Division Manager. 

The three sections below outline the disconnect between policies and implementation in each of the 

three hazard management areas identified above. 

1. Hazard Identification 

In order to timely identify safety hazards, PARD policies require periodic site inspections and annual 

safety audits to be conducted on each PARD facility. Additionally, the City's Child Care ordinance 

requires that each facility that hosts recreational programs undergo an annual safety inspection. 

As shown in Exhibit 1, safety inspections are not consistently conducted, documented, and 

monitored as required. 

Office of the City Auditor 2 PARD Patron Safety Audit, February 2014 
A total of 2 of 118 staffed PARD 

facilities in FY 2013 received a 

comprehensive safety audit by the 

Occupational Health and Safety 

Coordinator 

The Safety Officer, in coordination with 

site supervisors, should conduct a 

comprehensive annual safety audit on 

each staffed PARD facility 

EXHIBIT 1 

Implementation of Hazard Identification Policies 

Partially 

Partially 

Playgrounds are to undergo an annual 

playground audit by a certified 

playground safety inspector 

Division Managers are responsible for 

ensuring that each location of operation 

receives random in-house safety and 

health self-inspections with results 

forwarded to the Safety Office for review 

52 of 99 PARD-identified playgrounds 

received an audit by a certified 

playground inspector in FY 2013 

Based on our review of 

documentation for the recreation 

centers in the south and north 

districts, recreation centers receive 

periodic maintenance inspections or 

safety self-inspections; however, the 

results of these inspections are not 

provided to the Occupational Health 

and Safety Coordinator and there is 

not a system to ensure division 

managers receive and review 

inspection results 

SOURCE: PARD policies and OCA observations during the course of the audit, September-December 2013 

2. Data collection and analysis 

According to PARD policy, safety staff should collect and analyze data, including incidents and 

injuries, on an ongoing basis. Such analysis should lead to recommendations to identify trends and 

prevent common types of accidents. All incidents and injuries shall be entered into the PARD injury 

and incident database and forwarded to the Safety Office. However, we found that PARD does not 

have a central database for all incidents or injuries that occur at PARD facilities. Rather, there are 

three separate systems (general database, aquatic database, and Park Ranger database) and these 

datasets are not reviewed or analyzed in the aggregate. In addition, summary annual inspection 

information and patron safety summary data from the general database is not reported to executive 

management. 

Additionally, according to OCA analysis, the information in the databases is incomplete, contains 

information that is not relevant, and the data is not categorized in a manner that provides useful 

trend analysis. For example, the general PARD database contains over 70 categories of injuries, 

including: cut, fall, minor, scratches, minor scrapes, hit, hit in the mouth, bee sting, mashed fingers, 

major, and red mark on forehead. Also, there is confusion over what constitutes an incident and 

what constitutes an injury. According to PARD policy, injuries are minor accidents that require at 

most on-site first aid, while incidents are major accidents that require EMS assistance. However, 

according to OCA analysis, 70% of the reported incidents are categorized as general conduct and 

relate to children's behavioral issues. 

Office of the City Auditor 3 PARD Patron Safety Audit, February 2014 

5959 

EXHIBIT 1 

The Safety Officer, in coordination with No 

site supervisors, should conduct a 

comprehensive annual safety audit on 

each staffed PARD facility 

Playgrounds are to undergo an annual Partially 

playground audit by a certified 

und 

Division Managers are responsible for Partially 

ensuring that each location of operation 

receives random in-house safety and 

health self-inspections with results 

forwarded to the Safety Office for review 

A total of 2 of 118 staffed PARD 

facilities in FY 2013 received a 

comprehensive safety audit by the 

Occupational Health and Safety 

Coordinator 

52 of 99 PARD-identified playgrounds 

received an audit by a certified 

und ins in FY 2013 

Based on our review of 

documentation for the recreation 

centers in the south and north 

districts, recreation centers receive 

periodic maintenance inspections or 

safety self-inspections; however, the 

results of these inspections are not 

provided to the Occupational Health 

and Safety Coordinator and there is 

not a system to ensure division 

managers receive and review 

ion results 

SOURCE: PARD policies and OCA observations during the course of the audit, September-December 2013 

2. Data collection and analysis 

According to PARD policy, safety staff should collect and analyze data, including incidents and 

injuries, on an ongoing basis. Such analysis should lead to recommendations to identify trends and 

prevent common types of accidents. All incidents and injuries shall be entered into the PARD injury 

and incident database and forwarded to the Safety Office. However/ we found that PARD does not 

have a central database for all incidents or injuries that occur at PARD facilities. Rather, there are 

three separate systems (general database, aquatic database, and Park Ranger database) and these 

datasets are not reviewed or analyzed in the aggregate. In addition, summary annual inspection 

information and patron safety summary data from the general database is not reported to executive 

management. 

Additionally, according to OCA analysis, the information in the databases is incomplete, contains 

information that is not relevant/ and the data is not categorized in a manner that provides useful 

trend analysis. For example, the general PARD database contains over 70 categories of injuries, 

including: cut, fall, minor, scratches, minor scrapes, hit, hit in the mouth, bee sting, mashed fingers, 

major, and red mark on forehead. Also, there is confusion over what constitutes an incident and 

what constitutes an injury. According to PARD policy, injuries are minor accidents that require at 

most on-site first aid, while incidents are major accidents that require EMS assistance. However, 

according to OCA analysis, 70% of the reported incidents are categorized as general conduct and 

relate to children's behavioral issues. 

Office of the City Auditor 3 PARD Patron Safety Audit, February 2014 
The Safety Officer should conduct 

follow-up inspections to ensure 

corrective action is taken 

We found no evidence that outine 

follow-up is conducted 

EXHIBIT 2 

Implementation of Patron Safety Hazard Correction Policies 

tiem in 

No 

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 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. 

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 

Over the course of our audit, we found 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 playscape 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. 

a 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. 

Office of the City Auditor 4 PARD Patron Safety Audit, February 2014 

6060 

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 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. 

The Safety Officer should conduct 

follow-up inspections to ensure 

corrective action is taken 

The Safety Office is responsible for 

monitoring the implementation of the 

to ensure co 

EXHIBIT2 

No 

No 

We found no evidence that routine 

follow-up is conducted 

Documentation needed to evaluate 

compliance with the safety program 

is not maintained in a central location 

SOURCE: PARD policies and OCA observations during the course of this audit, September-December 2013 

Over the course of our audit, we found 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 playscape 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. 

Office of the City Auditor 4 PARD Patron Safety Audit, February 2014 
.A .safety issue at the Dougherty Arts Center (DAC) play area was identified by the site supervisor, 

Occupational Health and Safety Coordinator, and playground inspector. The hazard was 

partially addressed in the summer of 2013, only after a child injured his head and required 

stitches. 

EXHIBIT 3 

Concrete Safety Hazard at the DAC (Since Removed 

SOURCE: PARD photo, June 2013 

• The site supervisor and the Occupational Health and Safety Coordinator indicated that the play 

area at the DAC in its current condition continues to present a possible hazard to children 

(shown below). The Occupational Health and Safety Coordinator has proposed alternative 

options to the current play area, but an alternative plan has not been agreed upon. 

EXHIBIT 4 

DAC Play Area as of January 2014 

SOURCE; OCA photo, January 2014 

Office of the City Auditor S PARD Patron Safety Audit, February 2014 

6161 

11 A safety issue at the Dougherty Arts Center (DAC) play area was identified by the site supervisor, 

Occupational Health and Safety Coordinator, and playground inspector. The hazard was 

partially addressed in the summer of 2013, only after a child injured his head and required 

stitches. 

EXHIBIT3 

Concrete Safety Hazard at the DAC (Since RPm.,.v,.,~!.-·-· 

SOURCE: PARD photo, June 2013 

11 The site supervisor and the Occupational Health and Safety Coordinator indicated that the play 

area at the DAC in its current condition continues to present a possible hazard to children 

(shown below). The Occupational Health and Safety Coordinator has proposed alternative 

options to the current play area, but an alternative plan has not been agreed upon. 

EXHIBIT 4 

DAC Play Area as of January 2014 

SOURCE: OCA photo, January 2014 

Office of the City Auditor 5 PARD Patron Safety Audit, February 2014 
Exhibit 5 

Minor Hazard at Dougherty Arts Center 

'k 

Site visits conducted by our staff in conjunction with PARD staff indicate there are various minor 

outstanding safety hazards at the DAC, Hancock Recreation Center, and Jimmy Clay Golf Barn, 

including slippery conditions on steps and stairways and an ADA ramp with a rotten railing, 

shown below. 

SOURCE: OCA photo, January 2014 

Executive management support is critical to the successful implementation of any policy. While 

PARD executive management commitment is clearly spelled out in its safety policies, as mentioned 

above, this commitment has not been supported by the appropriate skills, resources, and structures. 

Without a structure in place to ensure safety inspections occur, without relevant safety data being 

collected and analyzed, and without a mechanism to ensure identified hazards are addressed timely, 

there is limited assurance that hazards to patron safety at PARD facilities are promptly identified 

and corrected. As a result, the City may subject its patrons to preventable harm and itself to legal 

and financial liability. 

Office of the City Auditor 6 PARD Patron Safety Audit, February 2014 

6262 

• Site visits conducted by our staff in conjunction with PARD staff indicate there are various minor 

outstanding safety hazards at the DAC, Hancock Recreation Center, and Jimmy Clay Golf Barn, 

including slippery conditions on steps and stairways and an ADA ramp with a rotten railing, 

shown below. 

Exhibit 5 

SOURCE: OCA photo, January 2014 

Executive management support is critical to the successful implementation of any policy. While 

PARD executive management commitment is dearly spelled out in its safety policies, as mentioned 

above, this commitment has not been supported by the appropriate skills, resources, and structures. 

Without a structure in place to ensure safety inspections occur, without relevant safety data being 

collected and analyzed, and without a mechanism to ensure identified hazards are addressed timely, 

there is limited assurance that hazards to patron safety at PARD facilities are promptly identified 

and corrected. As a result, the City may subject its patrons to preventable harm and itself to legal 

and financial liability. 

Office of the City Auditor 6 PARD Patron Safety Audit, February 2014 
RECOEViMENDATION 

The recommendations listed below are a result of our audit effort and subject to the limitation of 

our scope of work. We believe that these recommendations provide reasonable approaches to help 

resolve the issues identified. We also believe that operational management is in a unique position to 

best understand their operations and may be able to identify more efficient and effective 

approaches and we encourage them to do so when providing their response to our 

recommendations. As such, we strongly recommend the following: 

In order to ensure that PARD has a system in place to provide reasonable assurance that patron 

safety risks are identified and addressed timely, the Director should allocate necessary skills and 

resources to appropriately implement the PARD patron safety program and monitor its 

effectiveness. 

MANAGEMENT RESPONSE: Concur. Refer to Appendix A for management response and action 

plan, 

Office of the City Auditor 7 PARD Patron Safety Audit, February 2014 

6363 

The recommendations listed below are a result of our audit effort and subject to the limitation of 

our scope of work. We believe that these recommendations provide reasonable approaches to help 

resolve the issues identified. We also believe that operational management is in a unique position to 

best understand their operations and may be able to identify more efficient and effective 

approaches and we encourage them to do so when providing their response to our 

recommendations. As such, we strongly recommend the following: 

In order to ensure that PARD has a system in place to provide reasonable assurance that patron 

safety risks are identified and addressed timely, the Director should allocate necessary skills and 

resources to appropriately implement the PARD patron safety program and monitor its 

effectiveness. 

MMJAGEMENT RESPONSE: Concur. Hefer to 

L 

Office of the City Auditor 7 

A for response and action 

PARD Patron Safety Audit, February 2014 
rnpase 

;Thlplementatien lirtelioet I 

't.tetittrattlebel t'tG. 2,D14 

Slates of S tr 

APPENDIX A 

AGE ENT RESPONSEACT N PLAN 

Parittt: ;',i,:vrvalat 

Blve 

Jaltirlr,, 8 

her e.1 Plory, t'it.„ A LI dium ,1

of Arertitor 

Subjrad: Parks, opt!, R;creation DepariPt 

find attadictiMQ d Re o n 1114 + rima,a to tt14 Pattato holit 

A;t:1.1.1.MilMy 6. 2014. 

I have reviewed tit r 1111alas1 t.21titt.,‘,1 I tut

u h tits r EL 

recomittetiditia.,6, 

Ort-,,C n kAiStirt that ARO has 11 sytacto 3313 plat.at nt !tato:He leas/At:at:de a•;SiSrarti_;<:, that patron' 

iittch'2•::•k:d tho Director ,,temdri eeeer,sar7, .401i; r,.rpri resourcros to 

rityroiu rat,: PA RD Patron, ,aalety pRt.t.tlaita 2.6d tnonitot. its effectiveht:s.— 

rt2.,1)011St: flodIng PA RD inttrdh ft i111phtitimif foliforvi ltscd seti planid time i : 

1'13!1 tatien C aternrreTter arid Pri-loosatd 

Sirale;ttic.s. fur luiplciavatation 

332;134! 42434133 

11„, pe:.:Pori --.YA:11-1 

411 3;3'21,33 113/ 31813 , .33"1 

d 31413-41 33 34333 .tod Cie 

tstx 11133,r434,133,43 

p8,..3(3., 4, 33, 3413, 141. 4 ,413, 63341331 

333;4 ,373-13 ,4333 343 3'1331 34314113' 331333, 

4433 ,14 3 3 3333 3331 33113.373 ',tor :t4 

tn,;cir ,01, 

, ! Floon0 tiiitenfor 

r'ililrl t oCcIr 

at:Li 

ittc11,1.1 dut;.„ 

Pella anal) tii4 anc rcyadar 

atruls ttUVC Lain 

13,3 413 , 3 431, 3,..-,1 

11•;:,1 P't ),r;,a 

ii I - lit 

), citttero,hls 

atotatt:It p'o; 

1141., 

i) la, tot tsitetii,.1 

3 31.3 4 3' .33,313-‘ 

13 33 313` 

3.333 31,3 33 . 1 331331', 

3 13113 1331.111 

l'ARD crit:V g14E1 

itt,totrttla at: i 

111,13414. 33 

4l1',3 33-; 333 3'3. 3 . 

014g4p.r.., 

Office of the City Auditor 8 PARD Patron Safety Audit, February 2014 

6464 

APPENDIX A 

MANAGEMENT RESPONSE -ACTiON PlAN 

P;trk:,; and l\ccn.:.ltl<H1 Dcpartmc~1t 

2tK• ·"'·''-d' L.n!\:11 1.\ln\, \w'WJ, \ : \Si!.}·j 

?kas.~ find att;~eb~·d ih<' P:trk·. rmd R..ecn:mi,,n D.:pm1nwnt',; {l-'A.Rfl) re,[:.<llhe tuthe P:~:n~;t Satety Audit 

:hw:d .l;Hunu; 6. 201-L 

l h.1w r:·cicwcd 1iw report tindiny> a11d rc~u:mnt·rhiatint;s a'~<l'·•:mtr.•d and at;n•e with lh<' rcpott 

r~..·t>:nnuwnda1 i\~H. 

"lu (<l'<kr to i.'tl>urt: that l'ARD has a ~y.,tcrn in pb.:e tu plU\·idt: J<';"f>tuthlc assllntl'!i:C tbat patron .,,.,f,!l) 

ri~.b ;n'·' id::Htilied <11Hl <Hidrc\~<:d timdy. the Director s.houid ;dlocat~? IW<:c;:;sar} jl<..db <tml ~<.:sll\i!CC' to 

;~ppropti;!ld~ :m,1kmcm the PARD p.:Hh'l'l s:di.:ty pr.tgram :md monitor its cffcctinmc·s:;:· 

Cnrt('U rrcnct' 

............ ~·--- . . .. : ... S l ru1egipJ<:~t:Jtll jlkm~ ntatinn 

I L~ HFh.~-:-· to cz~ ~:\:n: Crc;lt•: ~~ Ci\JU!JHd1~1.n~~<t 

th>.tl Pc\H.D h:;, <~ 

.;.,:~·:.;:ern i-1 ~;,~a~.,Y ~n 

1Jr•.)\·ilh: rta:;on~b!e: 

,.l:<,S!.J!i.Wl"t' l.t~.i:lt §fH~?(l'"! 

":lfdy !'t>bl <1.1\' 

iJtcniii:~J and 

;~dJru.-.h(.!(i lillh•i\·, 

ti'J,;: t),n,::U~tl.f: ;:J'&I.-i"Ui-d 

d h-.'1(:W C::' fWff' ~\.-:!rY 

:;-;!.,.:! !!_«;. ;;p-_i f~-..':",0-!I~CCS. 

lu ,\pj)tOj:dt\ld\' 

Lq<lt'lfif'rl! 11> 

PARD pi!(N:~ >tik\) 

f"f'~ /r1Hll iUd 

flHJI~!\n<:"' 1~-"" 

t:fte(t·,"\ CHI.:':-;>~ 

ir,;~pc·d~nn systcn1 to idc:~tlfy 

j pntcr~ti·tl h;·l.tltH3~_t.:--~thi:~ 

i r~~l\:.;thonal ~~t~~~~t.t;.:-!-. 

.·"\).N.X.·~fli~>u.l -lfll<~ni!t:cs .;Uld ht· 

&~';'1(\n~l rark :;~-';tcm: in~pt:·t:tl(lfl 

p;•Jt(';vt)b •,v1~k iat::.iwU~· i.,.:Ort~i~tt:t·,t 

:.kn.:ut}t-t!'lllflti-._t~! t~f dt-pmt~l1!;lltd l 

!"i''St'(!-IHC:: ~() S>nid h~l/.-{IH'h\ ;)$ 

\Yt""ll iH tmF,t"i:nt~ mo11itorHtg -:t' 

:'n..;ure th-:;o eHt.•i:ti\·tnt·:-~~ 1~f 

r:m~di;t! ~ctk,r.o; l#kcn 

Cre;ltC ;; c.ontrali;"cd 

~nn<knt'afcid<m dm.:~h:1~ im 

{nndt?nl~. ·tnJuri~" tn;i~ I)Ccm- .:tt 

PARJ) purk~) at'11J !ltt.:tliri"C~ t~) 

me itJth.~ dat;,:.; t·ar~gL\rit:d 11.1~~­

trcnd anal}.,i> <tnd rcg.ul.;:r 

I'CPfH .. !Hl.~~ tO d~C C:XCt.:Ut~Vt.: tc~m 

; '~ I ' '.' ! ' 

Office of tbe City Auditor 

i - ··~-----

! I'Linm,,l 

8 

l'rnpos>ed 

!!l!Ekmcn~.ll.ti~!li!J!telin>r 

s~p(cll1b..:r 30. ~Dl4 

PARD Patron Safety Audit, February 2014 
APPENDIX A 

:41 

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Its i'1:10 oriii nue (+Li mr 

kli£4 it .1 r•,41- ,1„ra. or; 10 P1 0o'atit. thr: 

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by :'tid 

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Sake2, tl t trr t.. eyed 2

tilJt 

troir ntuld..11,1ropuntlitiy 

J,101 .;',1„.• o . Ni(,..('.

upp I , 

k,support p 11c"p;:,rt1n.:rit .

(I. cu;:(1.0(of 

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tiacitumber Tt. 2045 

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Office of the City Auditor 9 PARD Patron Safety Audit, February 2014