Baytown v Peoples
| Decision Date | 09 December 1999 |
| Citation | 9 S.W.3d 391 |
| Parties | <!--9 S.W.3d 391 (Tex.App.-Houston 1999) CITY OF BAYTOWN, Appellant v. PATRICIA PEOPLES, PAMELA MAE PEOPLES, AND ALVIN IRA MILLER, Appellees NO. 14-98-00818-CV COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON |
| Court | Texas Court of Appeals |
On Appeal from the 113th District Court. Harris County, Texas. Trial Court Cause No. 97-36937. Hon. Patricia Hancock, Judge.
Steven D. Selbe of Houston, for appellants.
David (Trey) M. Stiles III, Lauren S. Mattiuzzi, Keith Edward Coulter of Houston, for appellees.
Panel consists of Justices Yates, Fowler and Draughn.*
On September 23, 1999, we withdrew our previous opinion in this appeal, and we now issue the following one in its place.
This case involves the relationship between sections 101.021(2) and 101.060(a)(2) of the Texas Tort Claims Act1 and official immunity. Appellant, The City of Baytown ("City"), brings this interlocutory appeal after the trial court denied its motion for summary judgment in a lawsuit brought by Appellees, Patricia Peoples, Pamela Mae Peoples, and Alvin Ira Miller ("Peoples"). In one issue, the City appeals the denial of its motion. It claims that it cannot be held liable because its employee is entitled to official immunity. We affirm the trial court judgment because we conclude that this is a premises liability case; it is not a case based on respondeat superior liability for the acts of the employee. Therefore, the employee's official immunity does not negate the governmental unit's potential liability specifically provided for in section 101.060(a)(2).
On April 25, 1997, at approximately 9:35 p.m., Johnny Ray Berry was involved in a traffic accident with Theresa Lachelle White in the city of Baytown. Berry was southbound on Decker Drive and White was eastbound on Bayway Drive. At the intersection of these two streets, the cars collided. Appellees, Pamela Peoples, Patricia Mae Peoples, and Alvin Miller, were passengers in Berry's car at the time of the accident.
Normally, a traffic light controls the intersection of Bayway and Decker Drives; but on the night of the accident, the light was not operating properly. The circuit breaker that controlled the light had malfunctioned, possibly because the electrical power to the light had been disrupted by a storm, which apparently had halted the flow of electricity to a number of lights.2
On the night of the accident, John Stombaugh was a signal technician and acting traffic control supervisor for the City. At approximately 8:46 p.m., Stombaugh received a call about the malfunctioning light at the Bayway/Decker intersection. However, because of the storm, Stombaugh was busy working on other malfunctioning traffic lights. Stombaugh assumed electrical service had been interrupted at the Bayway/Decker intersection, because it was reported that all of the traffic lights were out at that intersection. In Stombaugh's opinion, the light at the Bayway/Decker intersection was not as heavily traveled as other intersections where he was working. Consequently, he did not immediately travel to repair that light. He went to the Bayway/Decker intersection after he repaired the other lights, which had been reported to him. When Stombaugh arrived at the intersection, the accident had already occurred. He noticed that the electricity was working but that the light was not functioning properly because of a bad circuit breaker on the traffic signal. After replacing the bad circuit breaker, Stombaugh restored the light to working order.
To recover for their injuries, Appellees sued Berry and the City. In their suit against the City, Appellees complain about the decisions Stombaugh made the night of the accident. Specifically, Appellees argue that he should have proceeded immediately to the Bayway/ Decker intersection, and that he should have erected temporary stop signs, or called another signal technician out to work on the lights. The City contends that Stombaugh, in light of his training, experience, and education, had the discretionary judgment to proceed as he did. It further contends that his actions on the night of the accident were reasonable and necessary to safeguard the public and all areas of the City of Baytown, and that he proceeded in the most reasonable and logical manner possible, and acted in good faith.
The City filed a motion for summary judgment arguing two things: (1) that by the terms of the Texas Tort Claims Act, Stombaugh's official immunity shielded it from liability, and thus, it is not liable - as a matter of law - for damages arising from this accident, and (2) that the City had not waived its sovereign immunity because its employee was responding to an emergency situation and did not act with conscious indifference or reckless disregard for the safety of others.3 The trial court denied the motion for summary judgment, and the City brings this interlocutory appeal challenging that denial.
A defendant prevails on a motion for summary judgment if she can establish with competent proof that, as a matter of law, there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. See TEX. R. CIV. P. 166a(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). If the defendant bases her motion for summary judgment on an affirmative defense, she must prove all the elements of such a defense as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). Once the movant establishes a right to summary judgment, the non-movant must expressly present any reasons avoiding the movant's entitlement and must support the response with summary judgment proof to establish a fact issue. See Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982); Cummings v. HCA Health Serv. of Texas, 799 S.W.2d 403, 405 (Tex. App.--Houston [14th Dist.] 1990, no writ).
The standards we must employ for appellate review of summary judgment proof are as follows:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Karl v. Oaks Minor Emergency Clinic, 826 S.W.2d 791, 794 (Tex. App.--Houston [14th Dist.] 1992, writ denied).
In its sole point of error, the City contends that the trial court erred in denying its motion for summary judgment. Specifically, the City argues that it is entitled to summary judgment because the reason for the delay in repairing the traffic signal in question was a result of discretionary, good faith decisions by its employee, Stombaugh, made in the course and scope of his authority and employment. The City presents the issue thusly: "whether or not a city can be held liable for a delay in repairing a traffic signal where the individual responsible for scheduling that repair has no liability because of official immunity." Alternatively, the City asks, "... does section 101.060(a)(2) eliminate the general rule that a city has no liability for the discretionary, good faith actions of their employees?" In arguing that we must hold that the City benefits from the employee's immunity, the City relies heavily on DeWitt v. Harris County, 904 S.W.2d 650, 652 (Tex. 1995).
The Peoples do not attempt to distinguish DeWitt, and they acknowledge that, generally, official immunity is available to the City to shield it from liability. However, they claim that official immunity is not available to the City in this case because section 101.060(a)(2) of the tort Claims Act, which contains a specific waiver of immunity as to traffic lights, controls over the general waiver contained in section 101.021.
After reviewing the statute and cases, we conclude that both of the parties have missed the mark on the real issue in this case. We see the real issue as being the following: whether the City's liability is based on respondeat superior liability, which would mean that the City would be shielded by the official immunity of its employee, or whether its liability derives from a premises defect, which would mean that the City would not be shielded by its employee's official immunity. As we explain below, if this is a premises defect case, 101.060(a)(2) governs, and the City cannot rely on its employee's official immunity, because its liability would be based, not on the actions of its employee, but on a condition of tangible personal property - in short, on an alleged premises defect. See DeWitt, 904 S.W.2d at 653.
This case is governed by the Texas Tort Claims Act, which is the statutory tool used by the Texas legislature to address its limited waiver of sovereign immunity. See id at 652. Three sections of the Texas Tort Claims Act are relevant to this case. First is section 101.021, the general waiver provision, which sets forth the general limit of the State's willingness to be liable for damages in tort. It is found in subchapter B, entitled "Tort Liability of Governmental Units".
Governmental Liability.
A governmental unit in this State is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death caused by a condition or use of tangible personal or real property if...
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