City of Houston v. Cavazos

• Decision Date: 06 June 1991
• Docket Number: No. B14-90-800-CV,B14-90-800-CV
• Citation: 811 S.W.2d 231
• Parties: The CITY OF HOUSTON, Appellant, v. Joe CAVAZOS and Viola Cavazos Individually and as Next Friends of Thomas Cavazos, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 231

811 S.W.2d 231

The CITY OF HOUSTON, Appellant, v. Joe CAVAZOS and Viola Cavazos Individually and as Next Friends of Thomas Cavazos, Appellee.

No. B14-90-800-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 6, 1991.

Rehearing Overruled July 3, 1991.

Joseph A. Callier, Houston, for appellant.

Robert A. Berry, Kevin Dubose, Joel C. Thompson, Houston, for appellee.

Before PRESSLER, JUNELL and ELLIS, JJ.

OPINION

ELLIS, Justice.

This is an appeal from a judgment entered in a wrongful death suit arising from the drowning death of Edmundo Cavazos on property controlled by the City of Houston. The jury found that the gross negligence of the City of Houston proximately caused the death of Edmundo Cavazos. The jury apportioned negligence at 80% on the City of Houston and at 20% on Ernesto Cavazos, the uncle of Edmundo Cavazos. We affirm.

Appellant assigns four points of error on appeal. In its first point of error, appellant submits the trial court erred in submitting negligence standard of care in the jury charge. In its second point of error, appellant contends the trial court erred in its definition of gross negligence submitted in the jury charge. In its third point of error, appellant maintains that the jury's affirmative response to the gross negligence question was erroneous in that there was insufficient evidence to support the jury's finding. In its fourth point of error, appellant complains that the jury's failure to find either Edmundo Cavazos or Thomas Cavazos negligent was against the great weight of the evidence.

Joe Cavazos and Viola Cavazos, the parents of the deceased child, sued the City of Houston under the Wrongful Death Act for the damages they suffered as a result of losing their son. The Cavazos sued as next friends of their other son, Thomas Cavazos, for the damages he has suffered as a result of witnessing the death of his brother. The Cavazos also sued under the Survival Statute for the conscious pain and suffering that Edmundo Cavazos suffered prior to his death.

There is an area in Eisenhower Park, behind Lake Houston Dam, where there is a concrete slab upon which people stand to fish. This slab bisects the river and it is possible to cross the river by walking across the slab. When the Cavazos family arrived at this area, they originally stood on the bank and fished from there. Eventually, the Cavazos family decided to cross to the other side of the river by wading along the concrete slab. The slab was covered with water that was between a foot and a foot and a half deep. While the water was shallow, it was also murky; and pedestrians wading across the slab could not see their feet. Although the water at the edge of the slab drops off to a depth of 15 feet, this drop-off was not visible to the people wading on the slab. Before the Cavazos family tried to walk across the slab, they saw numerous people walking across. The oldest Cavazos brother, Eloy, as well as his uncle, Ernesto, both assumed that it was safe to cross the slab. They attempted to cross. Edmundo Cavazos slipped, fell, was carried into the deep water and drowned. Plaintiff's expert witness testified that despite the appearance of safety, the slab was extremely dangerous because of the swift current running across it, the slippery nature of parts of the slab, and the inability to see the dramatic change in depth at the edge of the slab.

In its first point of error, the City asserts that the trial court erred in submitting Question 1, which inquires about general negligence, because a finding of gross negligence is required to impose liability on a city under these circumstances.

The submission of general negligence in question 1 was a necessary predicate to submitting comparative causation in question 2. The Cavazos family sued the City of Houston for its role in causing the death of Edmundo Cavazos. The City responded by accusing five different members of the Cavazos family of responsibility for the incident resulting in Edmundo's death. Because of that tactic by the City, a comparative causation question had to be submitted to assess the degree to which each of the accused parties was responsible. That comparative causation question became question number 2 in the jury charge. However, before the jury could be asked to apportion comparative causation of any party, it first needed to determine whether each of those parties was at least negligent. That task was accomplished in question 1, which inquired whether the negligence of any of the accused parties proximately caused the occurrence in question. Thus, question number 1, was included in the charge as a necessary predicate to question number 2, and question number 2 was made necessary by the City's allegations of comparative causation.

The submission of general negligence in question 1 was harmless because the judgment against the city was based on the gross negligence finding in Question 3. A finding of gross negligence was made by the jury in response to Question 3. It is noted that the submission of Question 1, by itself, would not have been sufficient to satisfy a requirement of a gross negligent finding to impose liability on the City. However, the jury's response to Question 3 supplies the necessary foundation for that judgment. Question 1, at worst, is unnecessary surplusage. We find nothing about the submission of Question 1, in addition to the submission of Question 3, that was "reasonably calculated to cause and probably did cause rendition of an improper judgment in the case ..." TEX.R.APP.P. 81(b)(1). Appellant's first point of error is overruled.

In its second point of error, appellant contends the trial court erred in its definition of gross negligence submitted in the jury charge. The City presents a two-fold complaint concerning the definition of gross negligence: 1) that the definition allowed a finding of conscious indifference or malicious intent, rather than exclusively requiring evil intent; and 2) the definition did not require a showing of maliciousness by a policy making official of the City. The City relies heavily on City of Gladewater v. Pike, 727 S.W.2d 514 (Tex.1987). In that case, the Texas Supreme Court acknowledged:

The usual test for gross negligence is the one set out by this court in Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex.1981). To be entitled to exemplary damages a plaintiff must show that entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the right or welfare of the person or persons to be affected by it ... In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn't care. Burk Royalty at 920. (emphasis added.) City of Gladewater, 727 S.W.2d at 523.

The definition of gross negligence that was submitted to the jury in this case was:

'GROSS NEGLIGENCE' means that entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the rights or welfare of the person or persons to be affected by it, or that shows maliciousness or evil intent by a policy making official of the City of Houston.

The first part of this definition is virtually identical to the definition provided by the Texas Supreme Court in Burk Royalty, and later acknowledged by that court as "the usual test for gross negligence" in City of Gladewater. The alternative provided in the latter part of the definition is virtually identical to the standard that the City now argues should have been applicable to this case. Thus, the definition used in this case was at least consistent with the usual test for gross negligence, even though it also provided an alternative theory that was more restrictive than the usual test.

An exception to the usual definition of gross negligence has been recognized in two cases involving the gross negligence of a city: City of Gladewater, and Schneider v. City of Cuero, 749 S.W.2d 614 (Tex.App --Corpus Christi 1988, writ den'd). Both of those cases involved an attempt to recover punitive damages against a municipality, and in each opinion the court limited its recognition of a stricter standard to the attempt to recover exemplary damages.

As previously noted, the definition of gross negligence given in this case was consistent with the definition approved by the Texas Supreme Court in Burk Royalty. The only cases recognizing an exception to that general rule impose a stricter standard as a prerequisite for obtaining punitive damages against a city. The Cavazos family did not seek punitive damages against the City of Houston. Hence, the punitive damages exception and its attendant standard are not applicable to the case at bar. Accordingly, the normal gross negligence instruction which was submitted to the jury was appropriate. Appellant's second point of error is overruled.

In its third point of error, appellant maintains that the jury's affirmative response to the gross negligence question was erroneous in that there was insufficient evidence to support the jury's finding. In support of its position, the City asserts that there is a lack of evidence to show that the City acted with malice and evil intent. Thus, the City's argument is premised upon its erroneous contention, submitted in point of error two above, that this case is governed by the City of Gladewater standard rather than the Burk Royalty standard. The stricter standard laid out in City of Gladewater is only a prerequisite to the recovery of punitive damages. We re-emphasize that punitive damages were not sought in the instant case. Thus, it is the Burk Royalty standard that governs this case. The definition of gross negligence provided in Burk Royalty does not require maliciousness or evil intent at all, but is limited to conscious indifference. Burk Royalty, 616 S.W.2d at 920. The definition fashioned by the...