City of El Paso v. Zarate, 08-95-00031-CV

• Decision Date: 04 January 1996
• Docket Number: No. 08-95-00031-CV,08-95-00031-CV
• Parties: The CITY OF EL PASO, Appellant, v. Javier ZARATE and Maria Zarate, Individually and on Behalf of All Statutory Wrongful Death Beneficiaries of Sergio Zarate and Ricardo Zarate, Minors, Deceased, Appellees.
• Court: Texas Court of Appeals

Page 326

917 S.W.2d 326

The CITY OF EL PASO, Appellant, v. Javier ZARATE and Maria Zarate, Individually and on Behalf

of All Statutory Wrongful Death Beneficiaries of

Sergio Zarate and Ricardo Zarate,

Minors, Deceased, Appellees.

No. 08-95-00031-CV.

Court of Appeals of Texas,

El Paso.

Jan. 4, 1996.

Rehearing Overruled Feb. 7, 1996.

David C. Caylor, City Attorney, Laura P. Gordon, Asst. City Attorney, El Paso, for Appellant.

Evelina Ortega, Caballero & Ortega, L.L.P., El Paso, John C. Schwambach, Jr., El Paso, for Appellees.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a wrongful death suit stemming from the drowning of Appellees' two sons on property owned by Appellant. The jury found Appellant to be negligent and entered judgment in favor of Appellees in the amount of $500,000. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On July 8, 1988, Ricardo and Sergio Zarate, who were thirteen and fourteen years old respectively, were playing in the house with their two cousins. Javier and Maria Zarate, the Zarate children's parents, decided to go to Juarez, Mexico to do some shopping. Before leaving, Maria gave her sons and nephews permission to go to the neighborhood park that was across the street from their house. Maria did, however, instruct the children to stay away from "the lagoon," referring to the northeast ponding area situated across the street from the Zarate home and in close proximity to the neighborhood park. No fences, barricades, or signs separated the park from the ponding area.

Early that evening, but while there was still daylight, Sergio, Ricardo, and their two cousins went into the ponding area that contained a lot of water because of high rainfall over the previous few days. Sergio, who could not swim, was walking close to the edge of the water when he slipped and fell into a washout approximately six and one-half to seven feet deep. Because the walls were very steep, Sergio could not crawl out. Ricardo, who also could not swim, jumped in to help his brother. Tragically, the two boys could not extricate themselves from the muddy water, and they drowned. The ponding area where the boys drowned was not fenced nor posted indicating its ownership, warning of trespass, or admonishing of danger.

In 1984, a strikingly similar event occurred in the ponding area. Chris Jennings, who was eight years old at the time, had gone into the ponding area to catch frogs when he slipped in the mud and fell into the water. A neighbor, who happened to be walking by the area, saw the child in peril and jumped in and saved the boy. After the child was revived by CPR, city emergency personnel arrived at the scene. Regarding the incident, Linda Rudd, the child's mother, testified as follows:

Q. What had happened to Chris?

A. He had died and been revived by a neighbor. This is what I understand, you know. I wasn't actually there to see it, that he was not breathing when the guy got him out of the water and that the guy revived him.

Q. When you say "near-drowning," what happened?

A. Well, he drowned, actually, and then the guy gave him CPR or whatever and--and brought him--revived him. And the medical people were with him, like I said, when I--when I got there.

The ponding area, containing approximately 500 acres and owned by Appellant, is a natural low point which had originally drained a large section of Northeast El Paso consisting of between 10,000 and 29,000 acres of land. During the early 1970's, the vicinity around the ponding area began to be developed. Appellant required developers of property adjacent to the ponding area to construct temporary improvements to the ponding area. These improvements consisted of the construction of dirt drainage ditches and an earthen retention basin constructed in the lowest point in the area. As such, the ponding area consists of a dug-out hole with two dirt channels.

Appellees brought suit against Appellant, asserting a cause of action for personal injuries and the wrongful death of their sons. Appellees alleged that the condition of the ponding area was a special defect or, alternatively, a premises defect for which Appellant should be liable. Judgment was entered in favor of Appellees in the amount of $500,000, which precipitated this appeal.

II. DISCUSSION

Appellant attacks the judgment of the trial court in two points of error, challenging the legal and factual sufficiency of the evidence to support various jury findings and alleging that the trial court erred in entering judgment for Appellees.

Appellant's first point of error provides: "The trial court erred, as a matter of law, in entering judgment for Appellees." Appellant does not brief this point separately or provide specific, ascertainable arguments in connection with this point. Thus, we are unable to determine the nature of Appellant's complaint from this multifarious point of error. See TEX.R.APP.P. 74(d) (providing that "[a] point is sufficient if it directs the attention of the appellate court to the error about which the complaint is made"). Moreover, it is essential that the complaint on appeal be with regard to specific special issues and not the verdict generally. Superior Packing, Inc. v. Worldwide Leasing & Fin. Inc., 880 S.W.2d 67, 69 (Tex.App.--Houston [14th Dist.] 1994, writ denied); Liberty Mut. Fire Ins. Co. v. McDonough, 734 S.W.2d 66, 70 (Tex.App.--El Paso 1987, no writ). Accordingly, we overrule Appellant's Point of Error No. One.

In its second point of error, Appellant attacks the legal and factual sufficiency of the evidence supporting various jury findings. In considering a "no evidence" legal insufficiency point, we consider only the evidence that tends to support the jury's findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402 (Tex.App.--El Paso 1994, writ denied). If there is more than a scintilla of evidence to support the questioned finding, the "no evidence" point fails. Tseo v. Midland Am. Bank 893 S.W.2d 23, 25 (Tex.App.--El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.--El Paso 1994, writ denied).

A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Tseo, 893 S.W.2d at 25-26; Hallmark, 885 S.W.2d at 474. The reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Tseo, 893 S.W.2d at 26; Texas Tech Univ. Health Sciences Ctr., 876 S.W.2d at 412. It is not within the province of this Court to interfere with the jury's resolution of conflicts in the evidence, or to pass on the weight or credibility of the witnesses' testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 829-30 (Tex.App.--El Paso 1993, writ denied). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 512 (1947); Tseo, 893 S.W.2d at 26; Hallmark, 885 S.W.2d at 474.

In its Point of Error No. Two(a), Appellant alleges that there is legally and factually insufficient evidence to support the jury's finding that the decedents were licensees. Appellant contends that the children entered the ponding area for purposes purely their own and, as such, were ordinary trespassers. ¹ We disagree.

A trespasser is one who "enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner ... but merely for his own purposes, pleasure or convenience...." Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302, 304 (1936) (quoting 45 C.J. 740). It has long been the law in Texas that a landowner or premises occupier owes to a trespasser only the duty not to injure him willfully, wantonly, or through gross negligence. Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954); Smither v. Texas Utils. Elec. Co., 824 S.W.2d 693, 695 (Tex.App.--El Paso 1992, writ dism'd by agreement); Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26 (Tex.App.--Dallas 1988, writ denied); Amara v. Lain, 725 S.W.2d 734, 738 (Tex.App.--Fort Worth 1986, no writ); Mendoza v. City of Corpus Christi, 700 S.W.2d 652, 654 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.). A clear description of the policy and law regarding trespassers is provided in Baldwin v. Texas Utils. Elec. Co., 819 S.W.2d 264, 266 (Tex.App.--Eastland 1991, writ denied):

It has long been the law in Texas that a landowner has no obligation to maintain his premises in a safe condition for strangers entering without authorization. The landowner may assume that persons will not penetrate his boundaries uninvited. Trespassers must take the premises as they find them, and, if they are injured by unexpected dangers, the loss is their own.

In comparison, a licensee "is a person who goes on the premises of another merely by permission, express or implied, and not by any express or implied invitation." Webster, 91 S.W.2d at 306; see Smith v. Andrews, 832 S.W.2d 395, 397 (Tex.App.--Fort Worth 1992, writ denied) (noting that consent to enter may be express or implied). A licensee's presence on the premises is for his own convenience or on business for someone other than the owner. Smith, 832 S.W.2d at 397; Mendoza, 700 S.W.2d at 654. The duty owed to a licensee is not to injure the person willfully, wantonly, or through gross negligence and to warn of or make safe dangerous conditions...