Travis County Commissioners Court
December 13, 2005
Item 12
Number 12 is to consider and take appropriate action to deny liability claim recommendation from Austin energy/city of Austin. >> morning, judge, Commissioners. We previously brought this claim to Commissioners court and we were asked to go back and exchange information with the city of Austin, and we have done so. We're coming back to court at this time to consider our recommendation to deny the claim. We've not been presented any information that really changes our opinion, and the city of Austin did bring out the fact that there's a signposted on 53rd and a half and airport, faces actually across airport to 53rd street. And that sign is a symbol of a truck with a line through it. We don't see where that sign is relevant to the circumstances of this loss.
>> what's on the sign again?
>> it's a symbol of a truck with a line through it.
>> that sign means no trucks, I take it?
>> well, there's some discussion about what that sign means. We've asked david from tnr to explain that.
>> I知 david greer from tnr, traffic. That sign is a symbol sign for a new through trucks, which states that trucks are not supposed to go through that section and down that road unless they have a delivery to make or if they are a property of a government entity or -- there's other issues also that are listed in the actual city of Austin's code that describes which trucks are exempt from that sign.
>> so we believe that governmental entities are excluded?
>> and that's what the city code even states, yes.
>> and what's Austin energy's position on that? Are you with the city of Austin, Austin energy or both?
>> I知 with the city of Austin, judge, and Austin energy is my client in this matter. And this is the sign to which they're referring.
>> state your name, please.
>> chris edwards. This is the sign to which they're referring. It's the universal symbol just like a no smoking sign. And in this photograph -- and actually, this was disclosed at your request, judge, at the last hearing we finally did receive the file, we received the county's photos and this sign is in the photos that the county provided to us in that file. And in this photograph you can see where it's at the intersection and these signs right here say 53rd and a half, which is where the accident occurred. And once we received the file, we responded that in addition to our other defenses we actually state that there is a new-through truck sign -- no-through truck sign. Last week I was advised that the county did not consider that a valid sign. It's not there for the right reason. It's not in the right place, whatever. And I asked to receive her authority for that rather than her opinion. And she agreed I would have it by the end of last week, and I have not received anything. As you might recall --
>> what's the answer to my question. Our position seems to be that governmental entities are excluded from the no truck sign. Is that on -- is your position the same or do you disagree?
>> I agree in part, your honor. What the ordinance says is that they're excluded from prosecution. This is a civil matter. This is just a claim for damages. Certainly it can't be the position that that sign means you can drive through there and do any amount of damage and not be liable for it. That's really not logical. What I was told last week is the reason that sign was put up is because that's a residential area and they don't want trucks driving through the residences. These signs are installed by the city of Austin. I have the work ticket where that sign was installed in 2000. It doesn't state that that's the reason. That is an assumption that's being made.
>> what's the reason?
>> it doesn't state a reason for why the sign is there.
>> it could be the reason.
>> it could be the reason, that's correct, but any commercial vehicle operator who would see that sign wouldn't just assume this is the reason it's there. It's a caution. It is a caution. Your county vehicle was hauling an 18-wheeler with 22 tires, and on top of that was the equipment that they were using, so even though this is notice that there were no trucks to go through there, and certainly a truck can still go through there, but with caution. If you recall from our last hearing, in the a.p.d. It is documented your driver admitted he was not looking where he was going. He admitted as he was turning --
>> [ inaudible ].
>> he admitted -- I have acopy. I think you've already seen it. As I was turning the corner he was watching a car at the stoplight. They can't possibly turn a 90-degree ankle. They go somewhat diagonally. And this car was backing up to allow him enough room to make his turn. In the a.p.d. Report he says I was watching this car to make sure I cleared them. It could be why he did not see the design sooin and why he did not see the sbc line, but right at that corner as you probably know throorks a major Travis County office -- there's a major Travis County office. The reason he was going there is right behind that corner you had a major, I believe, drainage project going for months. So your people would have known that this was a no through trucks area --
>> do you know what, you just said the magic words. You just said exactly why our truck had the right to go down there because it is going to property of a governmental entity. We've got our facility right there on that street. And there was a project that we were interested in just down the street. What you have not said yet are the magic words. When there are low places on an interstate, on an underpass, whatever, there are specific signs, there are very specific signs related to trucks everywhere where it says no trucks allowed, hazardous routes. You guys have done nothing to prove what our claim to begin with. We had the right to go down this street, and we measured at the time of the accident how tall our equipment was. And if there is negligence here, you need to go visit with sbc because they were hanging down and you did not put up the proper warnings that said low hanging cable. So I think you've got a claim, but not against us.
>> I cut you off, I was trying to clarify the no trucks sign. Let's hear from staff and from you and whatever action we're going to take, let's take. Let's let you finish, dan and then we'll give the city of Austin an opportunity. Go ahead.
>> our position is just as david reiterated. The sign is there. We're not saying it isn't. The purpose of the sign is vague. As you can see, the work order is vague as to why it should be posted. We feel that there's detrimentally re liens on the city of Austin as to why there's a sign there. The county has a right being a governmental entity for one, being a property owner two to access their property. There was no sign that said we don't want trucks in the neighborhood because we have low hanging cable and we know about it, we're not going to do anything about it. There's low hanging cable, the clearance is 13 feet, be careful. There's nothing there. It a vague purpose for that sign. Our position is that the sign doesn't reflect the low cable hazard and there is a minimum standard that cables have to meet for height. And this cable did not meet that standard. Our driver, I should say, in contradiction to what the city of Austin said, was paying attention to what they were doing, they were watching traffic, which is what they're supposed to be doing. They're accessing property on a route that's supposed to be open and I think they used as much caution as you would expect any driver to use who is driving a truck. So that's your position.
>> is there agreement on the height of the cable?
>> no, judge. Once the pole and the lines are down, there's no way to say what the height of the cable was.
>> it is our position that the height of the truck and the load was less than the height of the -- required height of the cable.
>> that's right, yes, sir.
>> can we show that?
>> I believe the truck was measured as it was leaving satellite 2.
>> by whom?
>> I believe it was the driver and supervisor.
>> in fact, we measured it.
>> that's my understanding. We knew the height, it was legal, and we managed to drive from satellite 2 to airport boulevard without a problem.
>> okay, the required cable height is what and our truck measured what height?
>> the required height is 14 feet according to the guidelines. Our truck measured at the satellite 2 before it left west side service center, excuse me, 13, six, and on site properly later on we measured again and it was 13-6.
>> so whose responsibility was it to make sure the cable was 14 feet?
>> it's my understanding, judge, it's the responsibility of the utility company or the electrical entity that when they construct these lines they file their own standards and follow state and local standards also to construct these. We see this all over the county where we have southern bell lines that we cut them in the ground. We cut them, we don't pay for it because they're not constructed to the proper specified standards. And in this case the same thing.
>> there's a paragraph in dan's memo that I think speaks volumes. Risk management spoke with sbc construction supervisor who advised sbc cables are required to be hung at a minimum of 15 feet over driveways, and 18 feet over any and all roadways. It should be noted that risk management has not received a claim from sbc for the damages to their cable lines. Believe me, when sbc thinks that they've got any kind of a claim, it's here yesterday. And the fact that they did not --
>> they did.
>> -- speaks volumes.
>> they did, Commissioner. Sbc mistakenly sent the claim to us. Obviously we're not there and we're not liable. And they are redirecting it to the county for almost $2,000.
>> it's supposed to be 18 feet. If they've got a claim, they need to be talking to themselves about how it is that their cable was too low hanging. If there's damage, it was self-inflicted.
>> I would respond to that, Commissioner, by saying that there are many lines in Austin in older areas that are grandfathered. They did not have to be raised every time an ordinance or a reg changed. The line height. And I can't say whether or not this was one of those lines specifically, but there are many lines that are grandfathered, and we've seen -- and this was an older area. But as far as sbc believing they had a claim --
>> so that's the new claim now, maybe it was grandfathered, so really it could be as low as it could go? It's like the story is changing again. If this is indeed a grandfathered area, then there ought to be a warning sign up there because believe me, we're not the only ones who are going to have a vehicle going through that particular area. That signage was meant for traffic control of not getting cut-through traffic of a commercial neighborhood going through that neighborhood. It's a neighborhood, but also next door to our county property. We have the right to go down there. And if you guys had a hazard, then it is a beef with sbc can you guys about not putting up proper signage and not taking care of business in that neighborhood. It's not with us.
>> we also note in one of the pictures taken by Travis County --
>> do you want to turn that around, your microphone?
>> there's a garbage truck that measures 13 feet travelling down that road. They have to access to those businesses to dump the trash. Obviously he just was coming to that area where they're not supposed to be.
>> can you tell me if the fbc -- sbc folks have been notified and if so, why aren't they here this morning or are they here present this morning?
>> Travis County has received nothing from sbc, nothing.
>> but according to what I知 hearing from the city, they have definitely sent correspondence to the city of Austin, and that's what I think I致e heard the city of Austin say this morning. My question is if they are involved in this process, and which apparently they are because it was their line, why aren't they here before the Commissioners court today? That's my question. Can anybody answer it? Have they been notified?
>> we don't know anything about sbc. This is the first we've heard of it.
>> well, that's a concern. I mean --
>> the sbc claim is not on the agenda today. On the agenda today is the Austin energy/city of Austin thing.
>> as I said, this is the first we've heard of sbc intending to make a claim.
>> did we give awe chance to finish, dan?
>> yes, unless there's questions.
>> then let's let Austin energy --
>> a good point, Commissioner Davis, about sbc, but it would be for the county to notify them that there's a hearing on the matter and not the city of Austin. They did tell me they sent us a claim for almost $2,000. I understand that it's -- they're being asked to redirect it to Austin energy. Obviously it's not our $2,000 since we were not there. With respect to this sign, it's a cautionary sign. It says be careful. And I think we've all seen where large vehicles such as the county was hauling that day have two people in the vehicle. One of them is driving and one of them is watching carefully. And I think you've all seen where the passenger is lifting low hanging lines to allow a vehicle to pass through there. We're asking our claim to be approved. We understand that that is not the position of the county, and if our claim is denied, we will obviously accept that and litigate. We did not want to litigate against another governmental entity, but my client has $19,000 in hard damages. At judge Biscoe's request we did send e-mails asking for a compromise, asking for a reasonable solution, and we've never received a response. So we had no choice but to come here and just reassert our claim.
>> let's say that we have heard that the line should have been 14 feet based on an occasion from txdot -- an indication from txdot, and we see that sbc says the line should be between 15 feet and 18 feet whether it's over a driveway or roadway, and our focus is that the height of our truck and the load was 13 and a half feet. So we're under all three requirements, so what's the city's position to that?
>> for one, judge -- I知 sorry, I知 judy to the courtroom rather than a Commissioners court. For one, I have been out there and that street has been repaved. You're talking about a difference between 13-6 and 14. And that has also been a moving target. Today we were told the truck was actually shorter than that. We were told the lines have to be higher than that. Those have been moving targets. In everything we've seen to date it said 13-6 and 14 feet. Whether they were off a few inches, this was August, lines can sag in extreme heat, the road was repaved, we were not provided with anything in the file reflecting documentation that the line was -- I知 sorry, that the truck was measured prior to leaving and that it was shown to be 13-6. So I guess it's that usual he said, she said where people have differing positions.
>> if the lines are lower than they should be, whether it's 14, 15 or 18. And our load is 13 and a half. It is our responsibility to stop and check the height of the lines before we drive under them?
>> I think the no through truck sign does pose some responsibility. It is a cautionary sign. We did have our folks out there, obviously you'll never know what the height of the line was that day, but we did have them out there for one of the poles that survived the accident and you can see the hole where the sbc line used to be, and it is to standard. The line, if it was not sagging or something had not intervened, the line would have been the proper height. But whether or not the repaving, the heat sagging -- this is a very old area. I know you're being provided a lot of information as to what the height of lines should be, but I believe that the answer sbc gave that day, which was a generic answer and not in any way specific to this incident, is what the standard is today. These are very old lines. What the standard was then I do not know. What your folks have provided to us in their file is that the standard was 14 feet.
>> we have always stated it was 13-6 from the day this thing has been brought up. And if indeed the city of Austin went through there and did a repaving project and as you add more stuff, then it is incumbent upon the city of Austin after they complete their project to recheck all these clearances. It's like -- it's a miracle that it wasn't somebody else. It happened to be us, but we have never strayed from our assertion. We checked, y'all didn't. And I知 really sorry that this happened, but the reality is that you have provided nothing to prove that this thing was at any kind of a legal clearance, whether you say it's 14, 18, 15, whatever. We were at 13-6 and we did the measurement to prove it, not only before we left, but at the scene of the accident. And the city of Austin has provided zero proof, zero evidence that that thing was 13-6 or less. Nothing, nothing.
>> no one is ever going to be able to provide evidence as to what the line height was that day, obviously. Once it was down, there's no way to show by city of Austin or sbc what the line height was. So that's an impossibility.
>> but if ours was 13-6, then it has to be lower than 13-6, which violates all regulations, be it sbc, be it the city of Austin, be it anything. And if you had low hanging lines there, then the city of Austin should have warned people.
>> well, and the county has alternatively not provided any evidence to us that it was 13-6. We were told it was measure and we've not seen anything to indicate what the measurement was. At any rate, we've tried to seek a resolution and a compromise and we've never received a response. It's our position we're out 19,000 in hard costs. Under the law of contributory negligence, I understand it's your position that sbc has some or all of the responsibility here. Travis County is free to seek contribution from sbc, but under the law of last clear chance, our driver had the last clear chance to have been looking ahead, to have seen the truck sign and to have recognized that he needed to proceed with caution.
>> I think there's an easy way to get --
>> do you have a written offer to settle? You did not make a written offer to settle. You asked us to make a reasonable offer.
>> we said we were open to any resolution or compromise. We've not received a response.
>> I致e not received any e-mails.
>> I have the e-mails with me.
>> whose attention was that sent to?
>> anything further from the court?
>> let me ask you, chris, if we're in the wrong, I知 going to look for a way to pay our bill. And you can send that to the city so you know how I feel about things like this. The simple thing here and the simple question -- and I am confused because I think the last time that we sent everybody away it was to really put you in touch with our group so that you could see the verification from us, unless you think that we're lying, that 13-6 was in essence the height of what we sent our truck, you know, out on the street with. So it really is something -- I would see where the county -- if anything, the county and the city may need to go to southwestern bell and say your line was too low. I致e never seen anybody -- I guess should be could show me some pictures of somebody holding a line up and I知 thinking two or three inches -- I might be two or three inches than I need to be right here. I don't think that the sign with the truck is relevant because most of us -- I mean, especially if you're working for a government. I wouldn't expect the city of Austin, if somebody came to me with that argument, I壇 be just as defensive with the city saying, no, I don't think your person needed to go and make sure that the line was not going to get entangled with the vehicle. They went out on the street -- if you question whether or not we think that we can give you verification that 13-6 was not accurate, then I think that you have an argument, but unless you think we're lying, unless we can't show that there was a 13-6 measurement when it left, and I think that we can show that, to me that is the full defense for what we have -- I知 not looking for a way not to pay if we owe something. I値l be the first to say pay the deal and let's move on. We got on the street knowing that we were within the height of being able to get on street, and the real culprit here is southwestern bell of not having their line up. Now, I知 happy to make a phone call and say, hey, you guys, you sent correspondence to the wrong people. I can see where the city is upset by this. I can see where we've got $19,000 and we didn't do anything. Somebody needs to pay, but to me unless I知 missing something, this is a southwestern bell deal. And I think that we ought to make phone calls and say, do you know what, we're getting hammered over here and we're not really -- we've got an attorney over here that has got a client and said hey, go get us some dough, we're out 19 grand, which I understand how the system works. But why isn't southwestern bell part of this deal? Maybe we need to have one more meeting and maybe we need to make some call to southwestern bell that says y'all come down here and then maybe two of us look at southwestern bell and say why wasn't your line where it needed to be? So unless somebody can convince me that we were -- that we did not document 13-6, chris, then I think that we are innocent in this deal, you all are the unfortunate -- in the unfortunate spot of having a 19,000-dollar bill or the city is. I don't think that's right either, but to me there is nothing here that we can go against the department and say, you didn't do the right thing.
>> well, there's one other aspect and don just brought it up. This was not apparently old cable.
>> this was a fiber-optic cable, so this was new technology. They should have been aware of the standards. It's an old neighborhood, but this was fairly new. It connected commercial buildings that were fairly new. Also, the paving project she refers to was a trap rock operation, which is similar to our seal coat operation. The thickness of that is approximately a quarter inch.
>> is that the cable that we can see -- that first cable going across the road? Is that the cable that is in question here? [overlapping speakers]
>> the cable is already down. Unless you're looking at poles or a --
>> the cable has not been replaced.
>> it hasn't?
>> no, they completely rerouted that area.
>> if a lawsuit is filed, the judge will require mediation, right?
>> in Travis County, yes.
>> why don't we get our one or two people, including a lawyer, and the city and maybe we'll get southwestern bell, right, to sit down and try to work through this thing.
>> we would be ameanable to that, judge, and I know you have a very good lawyer who would be ameanable to that as well.
>> for $20,000, I don't see the city or Austin energy just giving up, but if they file a lawsuit, the judge would require mediation anyway, it seems to me. We've gone through a lot of them, but the problem with mediation is we would expect to pay our third of mediation costs and expect the other two parties to pick up their share, but if we can hulgd in mediation, which is a formal process, that may make sense.
>> I guess we need to take a step back because as we said earlier, we've not been contacted or presented any claim by southwestern bell. I would think that the city of Austin, since they have been presented a claim, may want to invite southwestern bell.
>> invite them in my name.
>> Travis County has no damages. There was no damage to at least Travis County.
>> deal with the liability claim that is being presented to us today by Austin energy. And if there are discussions in the future about how to get this thing behind us, if you're asking for a response, I知 prepared to give you one in terms of saying I move that we deny the claim by autopsy energy and that the appropriate -- Austin energy and that the appropriate people who need to be brought to the table for discussions, it's sbc and we ought to appropriately participate in any kind of settlements. It's clear that you guys are asking the wrong people to pay. I壇 move we deny.
>> we've been seeking a compromise. If he is suggesting that the three parties who are affected sit down and seek a resolution, we're very happy to do that. We do not need an answer today if we have an opportunity to resolve this otherwise.
>> if there's a lawsuit, the judge will order us to mediation.
>> exactly. And we're happy to wait. And if Travis County will line up a meeting with sbc, we're very happy to participate.
>> I think the city of Austin needs to line up a meeting with sbc.
>> it's not our position that the lines are too low.
>> there's a motion by Commissioner Sonleitner to deny the claim. Is there a second? That dies for lack of a second. The county judge's motion is to get with the city of Austin, bring southwestern bell in, sit down and try to resolve this matter, come back to us after the first of the year, and let us know the progress. And if we've got to go to lit dpaition, we'll just do it.
>> second.
>> we put our -- we foot our share -- let's just do this. If we go to mediation later on, we just do it in early January.
>> I second that, judge. And especially because I asked earlier a question, even though we weren't posted to deal with sbc, they are definitely an integral part of this process. And of course I think they ought to be included. So I知 going to support the judge's motion and I hope the vote pass. So I think that's the direction we're going to get, I think we need parties to the table to resolve this thing.
>> what's the second Tuesday in January? Is that the 10th?
>> judge, if you are intending for us to go to mediation, and I think you may have covered this already, that you want your authorized representative to be an hr staff person or a risk management --
>> informal mediation.
>> and then we can work with -- because there are so many parties, if we don't set a date, we can at least work with everybody's schedules because I don't know what trial schedule and things are like.
>> is January 10th a good date or is the 17th better? I知 just trying to give you an opportunity --
>> actually, I think I知 unavailable on the 17th, but -- we can certainly extend it if necessary.
>> how about the 24th?
>> the 24th we take a vote.
>> I am available on the 17th as well.
>> 17th then.
>> we do it on the 17th and we would request that the city of Austin provide us a copy of the letter that they received from southwestern bell bell with contact information so we can expedite getting this set up.
>> absolutely.
>> just to remind everybody, the date of this incident was September the 13th, 2004. It's taken more than a year and I think people would be mazed -- amazed watching our proceedings this morning that this thing has taken this time and energy.
>> if we're not careful, we'll spend $20,000 going back and fourth.
>> judge, I do want the representative, at least for me, I want the representative going back to the client and expressing that I am sympathetic with them having a 20,000-dollar out lay. I don't think that's right for the city. And I will do everything in my power to resolve so that they are made whole because they're an innocent -- they're really a third -- whatever party you want to call them. They're way down the list of hay, what did y'all do to us down here? I would like to send that message.
>> and me too, seriously. You guys have been injured, but it was not by us.
>> any more discussion of the motion? All in favor? That passes by unanimous vote. Thank you very much.
>> thank you for hearing us. And judge Biscoe, I wanted to really thank you for speaking at the leadership academy. It was very beneficial to everybody in the room and we really appreciate it.
>> thank you very much. I didn't say anything bad about my colleagues down there.
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Last Modified:
Tuesday, December 13, 2005 3:38 PM