City of San Antonio v. Rodriguez

• Citation: 856 S.W.2d 552
• Decision Date: 26 May 1993
• Docket Number: No. 04-90-00599-CV,04-90-00599-CV
• Parties: CITY OF SAN ANTONIO v. Abraham RODRIGUEZ and Alicia Rodriguez.
• Court: Court of Appeals of Texas

Page 552

856 S.W.2d 552

CITY OF SAN ANTONIO v. Abraham RODRIGUEZ and Alicia Rodriguez.

No. 04-90-00599-CV.

Court of Appeals of Texas San Antonio.

May 26, 1993.

Rehearing Denied June 22, 1993.

Lowell F. Denton, Denton, McKamie & Navarro, Sarah B. Duncan, Fulbright & Jaworski, San Antonio, for appellant.

Les Mendelsohn, Randall C. Jackson, Jr., Speiser, Krause, Madole & Mendelsohn, San Antonio, for appellees.

Before REEVES, C.J., and CHAPA and RICKHOFF, JJ.

OPINION ON APPELLANT'S MOTION FOR REHEARING

CHAPA, Justice.

The motion for rehearing is partially granted. Our previous opinion of March 10, 1993 is withdrawn, and the following is substituted.

Appellant, City of San Antonio, appeals a judgment rendered in favor of appellees, Abraham and Alicia Rodriguez, who sued the city for the wrongful death of their daughter, Sandra Rodriguez.

On June 3, 1987, Sandra Rodriguez was driving on West Laurel Street in San Antonio. Because the city had experienced heavy rains, San Pedro Creek, an underground drainage culvert beneath the street, had overflowed with water and flooded a low water point on West Laurel. The site was neither barricaded nor marked as a low water crossing. Rodriguez's vehicle got caught in the current flowing over the street and was forced into the culvert, where Rodriguez drowned.

A lawsuit was filed against the city, alleging the causes of action of nuisance and premises defect caused by negligence and gross negligence of the city. In a twenty-six page petition, appellees contended, among others, that the city failed to properly design or construct West Laurel Street, failed to maintain West Laurel Street in a reasonably safe condition for motorists, and failed to properly construct and maintain San Pedro Creek as a drainage culvert. Some examples of a premises defect that appellees asserted were the city's failure to put up warning signs or a flood gauge, the city's failure to install guardrails, posts or other similar devices to prevent vehicles from being pushed into San Pedro Creek, the city's failure to elevate the low level of West Laurel Street, the city's failure to put up temporary barricades to warn of the hazardous condition, and the city's failure to fix the storm sewer system of San Pedro Creek to prevent it from overflowing. No special exceptions were found in the record. Therefore, the pleadings must be liberally construed in favor of the pleader. ¹ Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982); Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex.1977).

At trial, the jury answered affirmatively to the following questions that appeared in the jury charge:

Question 1

On the occasion in question, did defendant CITY OF SAN ANTONIO have actual knowledge or constructive notice of a condition on West Laurel Street that presented an unreasonable risk of physical harm to SANDRA RODRIGUEZ?

Question 2

On the occasion in question, did defendant CITY OF SAN ANTONIO commit any negligent act or omission which was a proximate cause of the drowning death of SANDRA RODRIGUEZ?

Question 3

On the occasion in question, did defendant CITY OF SAN ANTONIO through its design, construction, location and/or maintenance of West Laurel Street at its intersection with and/or over San Pedro Creek create or maintain a nuisance which was a proximate cause of the drowning death of SANDRA RODRIGUEZ?

Question 6

On the occasion in question, did any of the persons listed below while acting as a policymaking official of defendant CITY OF SAN ANTONIO commit one or more intentional, willful, wanton, or grossly negligent acts so as to indicate maliciousness or evil intent by that policymaking official?

--Frank Kiolbassa

--Johnny Krawczynski

--Robert Hahn

--Jesse Castro

The jury assessed twenty-five percent of the fault against Sandra Rodriguez and seventy-five percent of the fault against the city. The Rodriguezes' damages were awarded as follows:

--$300,000.00 to Abraham for past and future damages, plus $80,465.75 in pre-judgment interest;

--$225,000.00 to Alicia for past and future damages, plus $60,349.32 in pre-judgment interest;

--$379,500.00 to Abraham and Alicia, as representatives of the estate of Sandra Rodriguez, for past compensatory damages, plus $101,789.18 in pre-judgment interest; and

--$500,000 to Abraham and Alicia, as representatives of the estate of Sandra Rodriguez, for punitive damages, plus $134,109.59 in pre-judgment interest.

The final judgment awarded a total of $1,781,213.84, plus post-judgment interest at ten percent per year until paid.

We first note that the final judgment in this case was not granted on specific grounds. Where a judgment rests on multiple theories of recovery and one of those theories is valid, a court of appeals need not address the other causes of action. See Burkart v. Health & Tennis Corp. of America, 730 S.W.2d 367, 371 (Tex.App.--Dallas 1987, no writ); Hixson v. Pride of Texas Distr. Co., 683 S.W.2d 173, 180 (Tex.App.--Fort Worth 1985, no writ). "As a fundamental matter, questions unnecessary to a proper disposition of an appeal are not discussed." Liquid Energy Corp. v. Trans-Pan Gathering, Inc., 758 S.W.2d 627, 642 (Tex.App.--Amarillo 1988), vacated on other grounds, 762 S.W.2d 759. Therefore, we will only address those issues that are dispositive of this case including the premises defect cause of action which will sustain this judgment. TEX.R.APP.P. 90(a). Moreover, because most of appellant's points of error are multifarious, in the interest of justice we will only address the dispositive points as we perceive them. ² TEX.R.APP.P. 74(d) & 90(a).

The issues before this court are:

1) whether this case is governed by the Amended Tort Claims Act;

2) whether the premises defect questions submitted in the jury charge were proper;

3) whether the exemplary damages issue submitted in the jury charge was proper;

4) whether the court erred in admitting an out-of-court statement;

5) whether sufficient evidence exists to support a finding of gross negligence; and

6) whether appellees sufficiently established their standing to sue as representatives of Sandra Rodriguez's estate.

Initially, appellant contends that the Amended Texas Tort Claims Act ³ applies with regard to the premises defect cause of action. Appellant maintains that at the most it is only liable to appellees for a premises defect arising out of the performance of a "governmental function," and thus, appellees' recovery of damages is limited by the Amended Tort Claims Act. Appellees insist, however, that the former Tort Claims Act ⁴ controls. In response to appellees' motion to declare applicable law, the trial court ruled that the former Tort Claims Act applies to this case.

Municipal activities are either categorized as governmental or proprietary. A proprietary activity is defined as "one intended primarily for the advantage and benefit of persons within the corporate limits of the municipality rather than for use by the general public." City of Gladewater v. Pike, 727 S.W.2d 514, 519 (Tex.1987).

The doctrine of sovereign immunity does not apply to proprietary functions. Therefore, a plaintiff suing a municipality for harm arising out of a proprietary action is not limited by the amount of possible recovery. City of Houston v. Bush, 566 S.W.2d 33, 34-35 (Tex.Civ.App.--Beaumont 1978, writ ref'd n.r.e.). The same plaintiff may also sue the municipality for exemplary damages when intentional, willful or grossly negligent conduct is established. City of Gladewater v. Pike, 727 S.W.2d at 522.

By contrast, a municipality may not be sued for the performance of a governmental function due to the doctrine of sovereign immunity, unless waived by constitutional or statutory authority. Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). The Amended Tort Claims Act, which appellant insists is applicable, has waived immunity with respect to certain governmental functions. TEX.CIV.PRAC. & REM.CODE ANN. § 101.0215 (Vernon Supp.1993). However, under the Amended Tort Claims Act, the amount of damages in this case would be limited to $250,000.00. Id., § 101.023 (Vernon 1986).

In 1987, the Texas Legislature amended the Tort Claims Act which took effect on September 2, 1987. Both versions of the Act only cover governmental activities and do not apply to proprietary functions. However, the Amended Tort Claims Act provided new definitions for governmental activities, categorizing activities formerly deemed proprietary as governmental. Appellant concedes that "street, bridge, and storm sewer construction and maintenance, as well as the duty to warn of defects in and adjacent to city streets, were classified as proprietary functions" under the former law. ⁵ See, e.g., Jezek v. City of Midland, 605 S.W.2d 544, 546 (Tex.1980); Turvey v. City of Houston, 602 S.W.2d 517, 518 (Tex.1980); City of San Antonio v. Hamilton, 714 S.W.2d 372, 374 (Tex.App.--San Antonio 1986, writ ref'd n.r.e.). Under the Amended Tort Claims Act, however, these activities are now defined as governmental functions. See TEX.CIV.PRAC. & REM.CODE ANN. § 101.0215(a)(3), (4), (9), (20), (31) (Vernon Supp.1993). Therefore, these newly-defined activities are no longer classified as proprietary, Id., § 101.0215(c), and are now subject to the limits of recovery spelled out in the Amended Tort Claims Act. Id., § 101.023.

The new law provides that any lawsuit filed on or after September 2, 1987--the date the Amended Tort Claims Act took effect--is governed by the Amended Tort Claims Act. In this case, appellees filed written notice of their lawsuit with the city clerk of San Antonio on August 31, 1987 pursuant to the notice requirement of the city charter, ⁶ but did not file this lawsuit until after September 2, 1987.

However, the Amended Tort Claims Act also states in a savings clause ⁷ that any action in which notice is delivered before September 2, 1987 pursuant to a statute requiring written notice makes the lawsuit subject to the...