City of Pasadena v. Freeman

• Court: Texas Court of Appeals
• Writing for the Court: Before J. CURTISS BROWN; J. CURTISS BROWN; MURPHY
• Citation: City of Pasadena v. Freeman, 731 S.W.2d 590 (Tex. App. 1987)
• Decision Date: 16 April 1987
• Docket Number: No. A14-86-115-CV,A14-86-115-CV
• Parties: The CITY OF PASADENA, Appellant, v. Lois FREEMAN as Administratrix of the Estate of James Floyd Jordan, Jr., et al., and Lester S. Tice, et al., Appellees. (14th Dist.)

Page 590

731 S.W.2d 590

The CITY OF PASADENA, Appellant, v. Lois FREEMAN as Administratrix of the Estate of James Floyd Jordan, Jr., et al., and Lester S. Tice, et al., Appellees.

No. A14-86-115-CV.

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

April 16, 1987.

Rehearing Denied May 21, 1987.

Lee Clark, Pasadena, for appellant.

William A. Odom, Roy Murphy, III, Phillip A. Pfeifer, James S. Kelly and Michael Maness, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

The City of Pasadena appeals a judgment based upon a jury verdict in favor of several plaintiffs. The suit arose out of a tragic one-car accident in which two boys were killed and two injured when their car crashed into a drainage ditch in Pasadena. The jury found the City of Pasadena negligent in failing to erect a barricade or a temporary barricade to warn motorists that the street on which the boys were travelling made a dead end into a ditch.

The major issues on appeal concern (1) the nature of the city's duty; (2) the award of bystander damages to plaintiffs who did not witness the accident, and (3) the sufficiency of evidence to support an award of future medical expenses.

The night of May 26, 1983, James (Jimmy) Floyd Jordan, Jr., was driving his 1971 Pontiac with passengers David Tice, Eric Creel, and Jeffrey Jordan, Jimmy's brother. The boys travelled north on Alabama Street and turned east (right) onto Wyatt Street. At a distance of 762 feet from its "L" intersection with Alabama, Wyatt made another "L" intersection turning to the south (right) onto Jana Street because a drainage ditch intersected Wyatt. The ditch ran parallel to Jana. Wyatt was a concrete residential street. There was no curb at the east end of Wyatt where it intersected with Jana. Across the ditch, Wyatt Street continued in a straight line. Witnesses stated that it was not apparent that the ditch intersected Wyatt Street. Other than a dead end sign posted on Wyatt about 15 feet from its intersection with Alabama, there was no warning sign notifying motorists that Wyatt Street ended and the pavement turned to the right.

In April 1982 another driver had driven off the end of Wyatt and crashed into the same ditch at night while travelling in the same direction as the boys did. After that accident Pasadena police officers sent a "traffic hazards--condition report" to the city's traffic engineer department. A staff member of that department made a field investigation and recommended that a large yellow arrow sign be installed at the "L" intersection of Alabama and Wyatt Streets and a barricade be installed at the end of Wyatt at its "L" intersection with Jana. Mike McInturff, the city's director of the traffic and transportation department, initiated a work order for his department to put up the recommended signs. The yellow arrow sign was installed at the end of Alabama, but no warning was placed at the end of Wyatt until after the fatal May 26, 1983, accident.

Jimmy Jordan and David Tice were killed in the accident. Their families filed wrongful death actions. Jeff Jordan and Eric Creel sued for personal injury damages. The jury found that the City of Pasadena was 90 percent negligent in failing to erect a barricade and failing to erect a temporary barricade at the end of Wyatt Street before May 26, 1983. It found Jimmy Jordan 10 percent negligent in driving at a greater rate of speed than a person using ordinary care would have driven.

The jury awarded Lester Tice and Marilyn Tice, David's natural parents, and Lois Freeman, Jimmy Jordan's natural mother, wrongful death damages of $750,000 each. John Freeman, Jimmy's stepfather, was also awarded $750,000 in damages for past and future physical pain and mental anguish suffered as a result of "seeing the circumstances surrounding the death of Jimmy Jordan." Jeff Jordan was awarded $161,000 in personal injury damages and $50,000 for future medical expenses. Eric Creel was awarded $170,000 in personal injury damages and his mother, Grace Creel, was awarded $12,500 for injuries sustained "subsequent to the occurrence in question." All past medical and funeral expenses were stipulated and included in the final judgment.

The city's first four points of error all concern the nature of the city's duty to warn motorists like Jimmy Jordan that Wyatt Street ended in a drainage ditch. In point of error 3 the city contends that it is totally immune from suit because erection of a barricade falls under the city's governmental function of controlling traffic. Under the common law, a governmental entity cannot be held for the negligent performance of a governmental function. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 261 (1944). Alternatively, in point of error 4, the city argues that damages should be limited to the $300,000 allowed under the Tort Claims Act. ^* Both points depend upon the premise that a barricade is a traffic control device used in conjunction with the city's power to regulate traffic. The city cites Villarreal v. City of San Antonio, 657 S.W.2d 175, 177 (Tex.App.--San Antonio 1983, no writ), as authority for that premise.

We decline to follow Villarreal and hold that the erection of a barricade falls under the city's proprietary function of maintaining city streets. Therefore, the city enjoys no immunity from suit and the Tort Claims Act limitations on damages do not apply.

Traffic control is a governmental function. It arises out of the city's police power to regulate traffic. Palmer v. City of Benbrook, 607 S.W.2d 295, 298 (Tex.Civ.App.--Fort Worth 1980, writ ref'd n.r.e.). Before the Tort Claims Act, cities were immune from suits alleging that the plaintiffs were harmed because the city was negligent in controlling traffic. E.g., Parson v. Texas City, 259 S.W.2d 333 (Tex.Civ.App.--Fort Worth 1953, writ ref'd). Since January 1, 1970, the Tort Claims Act has provided plaintiffs the opportunity to sue cities and other governments for claims arising from the absence, condition, or malfunction of any traffic or road sign, signal or warning device provided that the governmental unit responsible had notice of the problem and failed to act within a reasonable time. See Tex.Civ.Prac. & Rem.Code Ann. art. § 101.060 (Vernon 1986). Cities remain totally immune from liability arising from the failure to initially place a sign, signal or warning device when such failure is the result of discretionary actions of the city. Id.

Courts have held that maintaining traffic signals, posting the correct speed limit, keeping stop signs unobscured by tree limbs, and regulating parking on a narrow street are all governmental functions in that they involve traffic regulation. Sparkman v. Maxwell, 519 S.W.2d 852 (Tex.1975), City of Houston v. Stoddard, 675 S.W.2d 280 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.), Kenneally v. Thurn, 653 S.W.2d 69 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.), Parson v. Texas City, 259 S.W.2d 333 (Tex.Civ.App.--Fort Worth 1953, writ ref'd) (all involving malfunctioning or improper traffic signals); Alvarado v. City of Lubbock, 685 S.W.2d 646 (Tex.1985) (posting wrong speed limit; it was not contended that a proprietary function was involved); Lorig v. City of Mission, 629 S.W.2d 699 (Tex.1982) (stop sign obscured); Palmer v. City of Benbrook, 607 S.W.2d 295 (Tex.Civ.App.--Fort Worth 1980, writ ref'd n.r.e.) (regulation of parking on a narrow street). In all of these cases the traffic control devices had something to do with regulation of traffic, that is, they instructed a driver as to when he may enter an intersection, where he may park, and how fast he may drive. A barricade, on the other hand, is a warning sign meant to instruct a driver about a dangerous hazard or condition in or near the street. In this case the hazard was a drainage ditch.

Maintaining streets in a safe condition is a proprietary function and a city is liable for its negligence in the performance of this function. Jezek v. City of Midland, 605 S.W.2d 544, 546 (Tex.1980). A city's duty to maintain safe streets is not limited to the travelled portion of the street. Id. When a hazard or dangerous condition is in such proximity to the street that it is not improbable that it would result in injury to those using the street in the ordinary manner the city has a duty to either remove the hazard, Id., or adequately warn motorists so that the road is made safe. City of Irving v. Shipp, 342 S.W.2d 449, 451 (Tex.Civ.App.--Fort Worth 1961, writ ref'd n.r.e.). The city's duty to keep its streets in a reasonably safe condition is a mandatory duty. City of Houston v. Hagman, 347 S.W.2d 355, 360 (Tex.Civ.App.--Houston 1961, writ ref'd n.r.e.). The jury found that the city was negligent in failing to erect a barricade or temporary barricade. Under the facts in this case, we consider the barricade a warning sign necessitated by the city's mandatory duty to perform a proprietary function of maintaining safe streets.

The supreme court pointed out the difference between warning signs and traffic control signs in City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326, 330 (1955). In that case the city failed to adequately warn traffic going south that the street became a one-way street for north-bound traffic while road repairs were being made. The plaintiff recovered from the city.

The duty of a city to erect signs at the site of street improvements does not arise out of its police power to control and regulate traffic which it may perform negligently or not at all without risk of liability, but is imposed by law for the protection of the public against immediate dangers created in the performance of the proprietary function of maintaining and improving its streets. The fact that the performance of the duty requires an incidental regulation of traffic does not detract from the duty or change the character of the function which...