City of San Antonio v. Hamilton

• Decision Date: 25 June 1986
• Docket Number: No. 04-85-00474-CV,04-85-00474-CV
• Citation: 714 S.W.2d 372
• Parties: The CITY OF SAN ANTONIO, Appellant, v. Cynthia HAMILTON, Individually and as Administratrix of the Estate of Dawn Patrice Hamilton, and Pat Hamilton, Individually, Appellees.
• Court: Texas Court of Appeals

Page 372

714 S.W.2d 372

The CITY OF SAN ANTONIO, Appellant, v. Cynthia HAMILTON, Individually and as Administratrix of the Estate of Dawn Patrice Hamilton, and Pat Hamilton Individually, Appellees.

No. 04-85-00474-CV.

Court of Appeals of Texas San Antonio.

June 25, 1986.

Rehearing Denied July 31, 1986.

Paula Dlugosz, San Antonio, for appellant.

Robert D. Huerta, San Antonio, Don Prager, Fort Worth, Marvin B. Zimmerman, San Antonio, for appellees.

Before ESQUIVEL, TIJERINA and DIAL, JJ.

OPINION

TIJERINA, Justice.

This cause concerns a survival and wrongful death action filed against the City of San Antonio as a result of the drowning of appellees' adult daughter at a low water crossing during a flash flood. The jury verdict was favorable for appellees, but, found that Dawn Hamilton, and the City of San Antonio were each fifty (50%) percent negligent in causing the accident. The trial court originally disregarded the jury verdict, ruling that under the Texas Tort Claims Act the total award for appellees was limited to $100,000. After a hearing on appellees motion for judgment, the trial court rendered judgment awarding appellees a total of $245,164.78 together with post-judgment interest plus costs.

The undisputed facts establish that the City of San Antonio designed and constructed a temporary water crossing on UTSA Boulevard at its intersection with Leon Creek near the University of Texas at San Antonio. After a severe rainstorm in the upper water shed area, Dawn Hamilton, appellees' daughter, drove her pick-up truck into the low water crossing where the vehicle stalled. Thereafter, during the resulting flash flood, the truck was swept off the crossing causing her death. The lawsuit filed alleged common law negligence and that the City of San Antonio was liable under the Texas Tort Claim Act, article 6252-19, sections 14(12) and 18(b) by creating a premises defect and special defect. The City of San Antonio's defense asserted immunity from liability because the alleged acts and omissions claimed by appellees were discretionary in nature; that it was exempted from the waiver of immunity provisions of the Texas Tort Claim Act; and that it had warned of a special defect in the roadway as required by the Act.

We are first asked to determine whether the judgment was erroneously rendered. Appellant contends that the jury findings of negligence and proximate cause were based on the performance or nonperformance of discretionary acts for which the City of San Antonio was immune from liability. The jury in effect found that the City of San Antonio committed the following acts and omissions, viz: (1) failed to construct an all weather crossing; (2) failed to provide a structure that was adequately vented; (3) constructed a structure which restricted the free flow of water; (4) the designing and constructing of the structure at this site. Section 14(7) of the Texas Torts Claims Act, supra, provides in pertinent part:

Sec. 14. The provisions of this Act shall not apply to:

(7) Any claim based upon the failure of a unit of government to perform any act which said unit of government is not required by law to perform. If the law leaves the performance or nonperformance of an act to the discretion of the unit of government, its decision not to do the act, or its failure to make a decision thereon, shall not form the basis for a claim under this Act.

Appellant argues that the jury finding on the special issues involved purely discretionary decisions which concerned whether or not to build the water crossing and how it should be designed and therefore immune under section 14(7).

A city is liable for unlimited damages for the negligent acts of its agents and employees while performing proprietary functions. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960). In Turvey v. City of Houston, 602 S.W.2d 517, 520 (Tex.1980), the Supreme Court held that "the City is not liable under the Texas Tort Claims Act for negligent acts arising out of the performance of its proprietary functions," but further stated:

There is nothing in this holding which affects a municipality's liability for proprietary functions. A municipality, as distinguished from a county, is liable under the common law for failing to properly maintain its streets irrespective of whether same was a special defect. (Emphasis added).

Id. at 520. Ministerial acts which can be performed by a private subcontractor have been generally held to constitute proprietary functions. City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985). The acts of constructing and maintaining a storm sewer have been held to be ministerial acts which could be performed by a private subcontractor and therefore a proprietary function for which the City of Houston was held liable for the negligent acts of its agents or employees. See Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992, 995 (1949).

In the instant case the City of San Antonio by ordinance voluntarily assumed the power to design and construct the low water crossing for the benefit of the locality and the citizens and thereby became involved in a proprietary function. City of Round Rock v. Smith, supra. The design and construction of the low water crossing was therefore a ministerial act which could have been performed by a private subcontractor. The first point of error is overruled.

Appellant's complaint that the trial court committed reversible error in awarding a judgment for appellees in excess of the $100,000 limit imposed by the Texas Tort Claims Act is without merit. Appellees were authorized under section 18(a) of the Act to seek unlimited damages under common law for the negligent acts of the City of San Antonio in the performance of a proprietary function. This section of the Act specifically provides that the Texas Tort Claims Act does not apply to any proprietary function of a municipality. Turvey v. City of Houston, supra. We concluded in ground of error one that the City of San Antonio was in this occurrence engaged in the performance of a proprietary function. Accordingly, the second point of error is overruled.

The next question concerns the failure of the trial court to reduce the award to appellees by 50% because the jury found that Dawn Hamilton was 50% negligent in causing the accident. In Trinity River Authority v. Williams, 689 S.W.2d 883, 886 (Tex.1985) the Supreme Court addressed the same question. The trial court had rendered the damages awarded to plaintiff by the percentage of contributory negligence found by the jury. The court of appeals reformed the trial court's judgment by awarding the full damages. The Supreme Court reversed the court of appeals judgment modifying the trial court's judgment as to contributory negligence and reinstated the damage reduction. Id. at 886. We therefore sustain point of error number 3 and will reform the judgment reducing the damages awarded by the percentage of contributory negligence as found by the jury.

Appellant contends that there was no evidence to support the jury finding of gross negligence to Special Issue No. 5. "In determining whether there is some evidence to support the jury finding of gross negligence, the reviewing court must look to all of the surrounding facts, circumstances, and conditions, not just individual elements of facts." Siebenlist v. Harville, 596 S.W.2d 113, 115 (Tex.1980). "All evidence must be considered in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in such party's favor." Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970). The evidence supporting the jury finding of gross negligence is as follows: The...