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Click here for the full text of this decision FACTS: On January 21, 2004, this court issued an opinion in this cause affirming the trial court’s denial of Stephen F. Austin State University’s plea to the jurisdiction. SFA subsequently filed a motion for rehearing, which the court overruled. The court withdraws its previous opinion and judgment of the same date and substitutes this opinion and corresponding judgment on rehearing. Appellee, Diane Flynn, sued SFA pursuant to the Texas Tort Claims Act for personal injuries. SFA filed a plea to the jurisdiction maintaining its entitlement to a dismissal based on the doctrine of sovereign immunity and application of the recreational use statute. The trial court denied the plea. SFA appealed, asserting in two issues that the trial court erred in determining it had waived sovereign immunity. On August 7, 2000, Flynn and her husband were riding their bikes along the Lanana Creek Trail in Nacogdoches. As she rode on the trail adjacent to a shot put field on SFA’s campus, she was hit by a stream of water from an oscillating sprinkler located by the shot put field. The sprinkler head was about four feet from the path she rode on. The water hit her on the right side of her head and the force knocked her off her bike. Flynn sued SFA for personal injuries she incurred from the accident. HOLDING: Affirmed. All three of Flynn’s allegations focus on the sprinkler, which is affixed to the land. The defect is the allegedly improper direction of the spray from the sprinkler, the forcefulness of the spray, and the time of day it was set to spray. The court concludes that, regardless of how it is phrased in the petition, Flynn complains of a condition of real property and her cause of action is one for premises defect. Flynn is therefore limited to asserting a premises liability claim. SFA asserts that the trial court erred in denying its plea to the jurisdiction and motion to dismiss because it did not waive sovereign immunity for Flynn’s negligent use of property claim. SFA contends that Flynn complained about the design of the sprinkler system, its placement, and the decision of when to operate the sprinkler system. SFA argues that Flynn’s allegations are all complaints about discretionary acts that are protected from waiver of immunity. It further argues that it was not required to design its sprinkler system in any particular way or to conform its sprinklers to any particular standards. Therefore, SFA contends, the Tort Claims Act immunizes it from Flynn’s complaints about the location, timing, and operation of the sprinkler system. In the absence of waiver, the state is immune from liability for torts committed by its employees when performing a governmental function. City of Round Rock v. Smith, 687 S.W.2d 300 (Tex. 1985). That is, when the state exercises “discretionary powers of a public nature embracing judicial or legislative functions,” it retains immunity. Thus, immunity is preserved for negligent discretionary formulation of policy. On the other hand, the state is liable for torts committed by its employees when performing proprietary functions. This is also known as policy implementation. Generally, ministerial acts which could be performed by a private subcontractor have been held to be proprietary functions. Thus, maintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability. City of Fort Worth v. Gay, 977 S.W.2d 814 (Tex. App.-Fort Worth 1998, no pet.). In her petition, Flynn alleged that SFA negligently caused the water’s path to cross the trail and activated the sprinkler at a time of day when people were likely to use the trail. As explained above, these allegations refer to a premise defect. The court does not read Flynn’s petition as alleging that SFA’s policy decision to water the grounds on its campus was negligence. However, the court agrees with the trial court’s determination that the decision of whether to water the grounds is a policy decision and, therefore, SFA retains its immunity for that decision. Further, the specifics of how and when to water the campus, the details that constitute the crux of Flynn’s complaint, cannot be described as “judicial or legislative functions.” Therefore, the court also agrees with the trial court’s determination that “the placement and operation of the sprinkler system constitutes policy implementation.” The acts of installing and operating the sprinkler system, which includes a determination of what area the sprinklers will cover, what direction they will spray, and when to turn them on, constitute maintenance activities undertaken at the operational level which fall into the category of policy implementation. Thus, Flynn has alleged that the dangerous condition on the premises came about through a negligently implemented policy. SFA can be held liable for its negligent implementation of policy at the operational level. OPINION: Devasto, J.; Worthen, C.J., Griffith and DeVasto, JJ.

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