Carter v. Steere Tank Lines, Inc.

• Citation: 835 S.W.2d 176
• Decision Date: 25 June 1992
• Docket Number: No. 07-90-0074-CV,07-90-0074-CV
• Parties: Kenneth CARTER, Carolyn Carter, and the Estate of Jimmy Dean Carter, Deceased, Appellants, v. STEERE TANK LINES, INC., Diamond Shamrock Refining and Marketing Company and Sylvester Medina, Appellees.
• Court: Court of Appeals of Texas

Page 176

835 S.W.2d 176

Kenneth CARTER, Carolyn Carter, and the Estate of Jimmy Dean

Carter, Deceased, Appellants, v. STEERE TANK LINES, INC., Diamond Shamrock Refining and Marketing Company and Sylvester Medina, Appellees.

No. 07-90-0074-CV.

Court of Appeals of Texas,

Amarillo.

June 25, 1992.

Rehearing Overruled July 28, 1992.

Moore, Lewis & Russwurm, Thomas C. Moore, Dumas, for appellants.

Underwood, Wilson, Berry, Stein & Johnson, Kelly Utsinger, Gibson, Ochsner & Adkins, A.B. Hankins and William S. Leach, Amarillo, for appellees.

Before DODSON, BOYD and POFF, JJ.

POFF, Justice.

This is an appeal by Kenneth Carter, Carolyn Carter, and the Estate of Jimmy Dean Carter, Deceased (the Carters) arising from a jury trial which resulted in a take-nothing judgment against appellees Sylvester Medina and Steere Tank Lines, Inc., and a summary judgment in favor of appellee Diamond Shamrock Refining and Marketing Company (Shamrock). The Carters' cause of action arises from a July 29, 1987 traffic accident involving Jimmy Carter's (Jimmy) vehicle and a Steere Tank Lines truck driven by Medina.

The accident took place around 11:00 a.m. on Highway 119 in Moore County, Texas, adjacent to the Diamond Shamrock refinery. Jimmy was proceeding west on Highway 119 at about 57 to 63 miles per hour when he came upon the Steere Tank truck. It was also traveling west, but at a very slow rate of speed. Medina had just completed weighing his vehicle at the Shamrock plant on the north side of the road, and was going to the Shamrock refinery on the south side of the road to load his truck with asphalt. To go from the north plant to the south plant required Medina to enter Highway 119 and travel westerly approximately 130 feet and then turn left across the highway into the south plant. As Jimmy overtook Medina, Jimmy attempted to pass Medina on the left. At the same instant, Medina began his left turn. When Medina began turning across the passing lane, Jimmy attempted to swerve to the right to avoid a collision. The maneuver was unsuccessful and Jimmy's vehicle collided with the rear of the truck. Jimmy was fatally injured as a result of the collision.

In their first point of error, the Carters contend the court erred in granting Shamrock's summary judgment. In points of error two, three, four, and five, the Carters complain of various evidentiary rulings by the court in the trial on the merits.

In addressing point of error number one, I find the summary judgment proof establishes the following. Shamrock's plant is located on both the north and south sides of Highway 119. Highway 119 is a two-lane highway running east and west at this location. The plant is so designed that trucks must traverse the plant on both the north and south sides of the highway in order to pick up a load of asphalt. A truck must first enter the north gate to be weighed and then must exit the north gate and enter the south gate to be loaded. Upon completion of loading, the truck exits the plant via the south gate. The north and south gates are not directly across the highway from each other, but rather the south gate is approximately 130 feet west of the north gate.

On the morning of the collision, Medina, the Steere Tank Lines driver at Shamrock's direction, entered the Shamrock plant on the north side of the highway and had his truck weighed. He then exited the plant and turned right on Highway 119 and headed west two or two and one-half truck lengths. Medina testified he had completed his right turn and his vehicle was traveling west on the highway in a straight line. He further testified he had turned on his left turn signal. He had not shifted gears and was traveling less than 10 miles per hour. As he began making his left turn into the south gate, his truck was struck by Jimmy's vehicle, which was also headed west on the highway and was attempting to pass Medina. ¹

The portion of the highway upon which the accident occurred was designated for passing. No signs were erected designating the area as a danger area. The day of the accident, July 29, 1987, was the first day that Shamrock had required trucks to be weighed on the north side of the highway and loaded on the south side. Prior to July 29, all asphalt trucks had been weighed and loaded on the north side of the highway. Thus, previously when trucks exited the north gate and headed east or west, there had been no need for a subsequent turn. The evidence showed Jimmy frequently traveled this highway and was familiar with the established traffic patterns.

In examining the first point of error, the Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985) test will be employed. Employing the Nixon v. Mr. Property Management test, all evidence favorable to the Carters will be taken as true and all doubts resolved in the Carters' favor. Under this standard, I find there is no evidence that Medina was negligent in the operation of his truck. Thus, it is assumed Medina exercised due care by entering the highway and beginning his left turn in a safe and prudent manner. Therefore, Medina's driving was not a proximate cause of the collision.

It is taken as true that the owner of property abutting a public highway must exercise reasonable care not to jeopardize or endanger the safety of persons lawfully using the highway as a means of passage or travel and that the owner is liable for any injury that proximately results from his wrongful acts in such respect. This very court, in Skelly Oil Co. v. Johnston 151 S.W.2d 863 (Tex.Civ.App.--Amarillo 1941, writ ref'd), enunciated this doctrine of landowner liability. See also Alamo Nat. Bank v. Kraus, 616 S.W.2d 908 (Tex.1981). I, therefore, cannot accept Shamrock's contention that it owed no duty to Jimmy or other travelers as they used the highway abutting its plant.

Clearly, if Jimmy's vehicle had been struck by falling debris from the Shamrock plant, liability would attach. Alamo Nat. Bank v. Kraus, 616 S.W.2d 908 (Tex.1981). Likewise, if water blown from a Shamrock cooling tower had created a slippery spot on the highway, Skelly Oil Co. v. Johnston, 151 S.W.2d at 864, or if smoke from the plant drifted across the highway, Atchison v. Texas & P. Ry. Co., 143 Tex. 466, 186 S.W.2d 228 (1945), or if a tall stand of grass and weeds was allowed to obscure the view of a highway, Hamric v. Kansas City Southern Ry. Co., 718 S.W.2d 916 (Tex.App.--Beaumont 1986, writ ref'd n.r.e.), liability would attach.

Shamrock notes, however, that in each of these cases the "agent of catastrophe" set into motion was an inanimate object: smoke, water, tall grass, a falling wall. Shamrock argues that while the duty not to endanger travelers exists as to inanimate objects, it does not exist in this case because Shamrock had no control over Medina, who was an independent contractor.

The Carters counter by citing Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 350 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.), as authority for the fact that a landowner's duty exists even when the object released onto the highway is not inanimate. In Golden Villa, the court held that a nursing home had a duty to exercise reasonable care not to endanger the safety of a motorcyclist using the highway abutting the home. The nursing home was found to have breached its duty by allowing a patient--obviously an animate object--to wander onto the nearby highway. The court held the evidence sufficient to find that the patient constituted a clear and present danger to travelers because they would have to swerve or otherwise attempt to avoid hitting her if she was on the highway.

Shamrock does not cite nor attempt to distinguish Golden Villa but rather points to Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189 (Tex.App.--San Antonio 1988, writ denied), for the proposition that a landowner has no duty not to endanger travelers when the agent of catastrophe is an animate object over which the landowner has no control. Shamrock further contends Naumann holds that a landowner owes no duty to the traveling public in the design of entrance or egress from its property.

Naumann involved a truck driven by an independent contractor--another most decidedly animate object--which entered a highway from an adjoining landowner's (Windsor Gypsum) property and was involved in an accident. In finding the landowner not liable, the Naumann court did not, as Shamrock contends, hold that a landowner has no duty not to endanger travelers when the agent of catastrophe is animate. A brief examination of the Naumann court's treatment of the Golden Villa case makes this clear.

In Naumann, the court recognized the Golden Villa case as correctly finding a duty on the part of the nursing home to keep the patient in question from wandering onto the highway. Id. at 191. The Naumann court characterized the patient as a person who was unable to provide for her own safety and who had on prior occasions wandered off the nursing home property. Id. Thus, the patient was a foreseeable danger to motorists. Because the nursing home failed to properly supervise the patient, the home had created a dangerous situation for which it was responsible.

In Naumann, on the other hand, the court found that the landowner did not create a dangerous situation in the placement of its gate. The Naumann court, therefore, distinguished Golden Villa not on the basis of duty but on the basis of foreseeability and causation. The Naumann court found their facts unlike the facts in Golden Villa where there was a foreseeable danger, and the animate object the mental patient, was not found to be responsible for her actions.

The court correctly noted in Naumann that Windsor Gypsum had every right to expect the truck drivers, over whom they had no control, to exercise due care in the operation of their vehicles as they exited Windsor Gypsum's plant. It was not foreseeable that the animate object, the truck driver, would act in a...