City of Houston v. George

• Decision Date: 22 March 1972
• Docket Number: No. B--2726,B--2726
• Citation: 479 S.W.2d 257
• Parties: CITY OF HOUSTON, Petitioner, v. Odell K. GEORGE ex ux., Respondents.
• Court: Texas Supreme Court

Page 257

479 S.W.2d 257

CITY OF HOUSTON, Petitioner, v. Odell K. GEORGE ex ux., Respondents.

No. B--2726.

Supreme Court of Texas.

March 22, 1972.

William A. Olson, City Atty., Joseph G. Rollins, Asst. City Atty., Houston, for petitioner.

Harry Burns, Houston, for respondents.

REAVLEY, Justice.

The City of Houston was sued by the parents of an eleven year old boy who drowned in water located in a garbage disposal area. The trial court entered judgment for the City when plaintiffs rested their presentation of evidence, but the court of civil appeals reversed and remanded for trial. 465 S.W.2d 387. We find no escape from the rules of municipal immunity from liability and uphold the decision of the trial court.

On the afternoon of May 8, 1967 Victor Roy George joined two playmates after his fifth grade classes had recessed; they first rode their bicycles to Blue Ridge Park where they watched a baseball game being played. Victor and his friends left the baseball diamond area to proceed, as they had done on other occasions, onto the adjacent garbage dump. In their excursion through the dump grounds, Victor discovered a piece of styrofoam floating in a pool of water. When Victor attempted to reach the styrofoam with the aid of a stick, he slipped into the water. Because of the steepness of the bank and the looseness of the dirt, he was unable to climb out of the water and despite the assistance of his friends Victor drowned.

The City of Houston acquired approximately 300 acres of land in this vicinity in 1937. Initially the entire tract was designated the Holmes Road Land Fill and used for the disposal of trash and garbage by incineration and by burial in the ground. In 1953 the City dedicated for park purposes a 20 acre tract on the northeast corner of the 300 acres as well as a 12 acre tract on the southeast corner. The area on the southeast corner came to be known as Blue Ridge Park.

The appellate record does not give us a full understanding of the premises of the park and its boundaries. We have only blurred reproductions of pictures of the western area. We are told that a library building and health center, as well as swings and other playground equipment, are located in the park. At the northwest corner of the park where one of the baseball diamonds is located, a substantial embankment runs between the park and the dump ground. The embankment was less steep at the spot where the boys left the park and entered the dump, but there is no question but that the appearance of the two areas was different or that the boys knew they were on the dump and outside of the park when the water hole was encountered.

The hole was approximately 25 or 30 feet in diameter and 12 or 15 feet deep; it was dug by the City for the purpose of burying refuse. The water collected either by leeching out of garbage or from rainfall or from both sources. This was all customary to the operation of the dump or landfill by the City, as similar holes were excavated thereon at all times while the premises were used for waste disposal.

It may be assumed that the danger of the water-filled excavation itself and the frequent presence of children there would have supported a cause of action against the City in the absence of governmental immunity. However, in that delineation between proprietary and governmental functions, garbage disposal is held to be on the governmental side where a city is not liable for damages caused by negligence of its officers or employees. City of Wichita Falls v. Robison, 121 Tex. 133, 46 S.W.2d 965 (1932); City of Fort Worth v. George, 108 S.W.2d 929 (Tex.Civ.App.1937, writ ref'd).

The court of civil appeals has held that the plaintiffs made a case for the jury because of evidence of the danger created by the City on the dump ground, and that court has met the problem of immunity by saying that the evidence raises an issue that the water hole constituted a nuisance which would put the case within an exception to the bar of immunity.

There is authority for the proposition that a municipality, though otherwise immune from liability, loses that immunity if the danger which caused the harm is designated a nuisance. There is considerable difference between the holdings in other jurisdictions as to what may constitute a nuisance for the application of this exception to immunity. Lehmkuhl v. Junction City, 179 Kan. 389, 295 P.2d 621, 56 A.L.R.2d 1409 (1956); Carabetta v. City of Meriden, 145 Conn. 338, 142 A.2d 727 (1958); Dollar Savings & Trust Co. v. City of Youngstown, 19 Ohio App.2d 225, 250 N.E.2d 883 (1969); Iseminger v. Black Hawk County, 175 N.W.2d 374 (Iowa 1970); Anno. 56 A.L.R.2d 1415 (1957). There is language in an early Texas opinion which would apply the exception where the effect of the danger or harmful condition does not extend beyond the bounds of the municipal property. Wiggins v. City of Fort Worth, 299 S.W.2d 468 (Tex.Civ.App.1927), aff'd City of Fort Worth v. Wiggins, 5 S.W.2d 761 (Tex.Com.App.1928). However, in Gotcher v. City of Farmersville, 137 Tex. 12, 151 S.W.2d 565 (1941), where a child had drowned in a city cesspool, this court held that the exception to immunity from liability depended upon the showing of a nuisance constituting an unlawful invasion of the rights of others. As...