City of San Benito v. Cantu

• Citation: 831 S.W.2d 416
• Decision Date: 07 May 1992
• Docket Number: No. 13-91-001-CV,13-91-001-CV
• Parties: CITY OF SAN BENITO, Appellant, v. Calixtro CANTU, Sr., Individually and on Behalf of the Estate of Calixtro Cantu, Jr. and Maria Teresa Cantu, Individually, Appellees.
• Court: Court of Appeals of Texas

Page 416

831 S.W.2d 416

CITY OF SAN BENITO, Appellant, v. Calixtro CANTU, Sr., Individually and on Behalf of the

Estate of Calixtro Cantu, Jr. and Maria Teresa

Cantu, Individually, Appellees.

No. 13-91-001-CV.

Court of Appeals of Texas,

Corpus Christi.

May 7, 1992.

Paul Q. O'Leary, Hirsch, Glover, Robinson & Sheiness, Brownsville, Kathleen Walsh Beirne, Kruse, Laser & Griffin, Houston, for appellant.

Cesar A. Amador, Richard C. Arroyo, Arroyo & Amador, Brownsville, for appellees.

Before NYE, C.J., and BISSETT ^* and SEERDEN, JJ.

OPINION

BISSETT, Justice (Assigned).

This is an appeal by the City of San Benito, defendant in the trial court, from a judgment which was rendered for plaintiffs in a wrongful death action. We reverse and render.

Calixtro Cantu, Sr., individually and on behalf of the Estate of Calixtro Cantu, Jr., and his wife, Maria Teresa Cantu, individually ("the Cantus") filed suit against the City of San Benito ("the City") and Cameron County Irrigation District No. 2 ("the District") to recover damages for the drowning of their son Calixtro Cantu, Jr. ("Calixtro"). Specifically, they alleged in their Second Amended Original Petition, their trial pleading:

IV.

This action is proper pursuant to Title 5 of the Texas Civil Practice and Remedies Code, Subchapter B, Section 101.021(2), wherein governmental units in the state, such as the Defendants herein, are liable for personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Section 101.025(a) of the above referenced code states that a governmental unit's sovereign immunity is waived and abolished to the extent of liability created by Chapter 101. Section 101.025(b) further states that a person having a claim under this chapter may sue a governmental unit for damages allowed by Chapter 101.

V.

On or about April 12, 1988, Plaintiff (sic) Calixtro Cantu, Jr., accompanied by two smaller friends, was playing in the vicinity of the resaca located between Robertson and Zaragosa Streets. While playing there, Plaintiff (sic) went to the edge of the resaca where the floodgates on Robertson Street are located, fell into the waters of the resaca, and drowned shortly thereafter....

The Cantus further alleged that on the date and occasion in question the City and the District were each negligent in their failures to take action to protect the public from the danger posed by the premises in question after having notice of prior reported drownings in the resaca in question, and that each of them negligently violated the duty owed to the deceased under Tex.Civ.Prac. & Rem.Code § 101.022 (Vernon 1986) in the following respects, each of which was a proximate cause of injuries and damages suffered by plaintiffs:

a. Failure to warn the public of the danger posed to children playing at the edge of the resaca; and

b. failure to place needed barriers at the edge of the resaca where the floodgates are located.

As a result of the alleged negligent acts by the defendants, the Cantus claimed that they, the surviving parents of Calixtro, who was seven years of age at the time of his death, were entitled to recover damages for the pain, suffering and mental anguish Calixtro suffered, and damages they suffered as a result of their son's death.

The City defended on the grounds it was immune from liability and filed a cross action for indemnity against its codefendant, the District. The Cantus settled with the District before trial and the cause against the District was severed from the cause against the City. The order of severance also allowed the City to submit the District's negligence to the jury.

The trial court overruled the City's motion for a directed verdict at the close of the Cantus' case, at which point the City rested. The case was submitted to the jury on written questions to which the City objected. The jury found in favor of the Cantus and awarded $50,000 in damages.

This appeal raises similar contentions to those raised in the City's motions for directed verdict, for entry of judgment, and for judgment notwithstanding the verdict. The City challenges the court's charge, the verdict and the judgment because the evidence submitted to the jury could not predicate any waiver of the City's immunity from liability under the Texas Tort Claims Act.

The case proceeded to trial on the jury docket on April 9 and 10, 1990. The City moved for a directed verdict at the close of the Cantus' case based on the following contentions: there were neither pleadings nor evidence to support a claim for willful or wanton conduct or gross negligence which would create liability pursuant to Section 101.022 of the Tort Claims Act, there was neither pleading nor evidence of any "special" defect that would create a higher, i.e., invitee-level, duty in the City, and that the Cantus had not established that the City owned, occupied, or controlled the premises where Calixtro drowned, or created the defect which allegedly caused the death.

The court refused to instruct the jury to return a directed verdict. The trial court also overruled the City's numerous objections to the questions submitted to the jury during the charge conference.

In response to the questions presented in the Court's charge, the jury found there was a condition on the City's premises that presented an unreasonable risk of harm to the Cantus' son; the City had actual knowledge of the condition, but the child did not, and the City failed to warn the child of the condition; the City's failure to warn was a proximate cause of the death, although the manner in which the City maintained the premises was not; the City's maintenance of the premises was neither willful nor wanton conduct, nor did it constitute gross negligence. In response to Questions 8 and 9, the jury attributed fifty percent of causation to the City, fifty percent to the District, and none to the plaintiff Calixtro Cantu, Sr.

FACTS

The resaca in question is a reservoir located between West Robinson and West Zaragosa Streets in San Benito, Texas. A bridge on West Robinson Street spans the resaca and the City has a right-of-way for that bridge. The resaca's floodgates are under the bridge. Four large pipes control flow of water. Calixtro's body was found lodged underneath the pipes under the bridge. It is undisputed that the District owns, operates and maintains the resaca and its floodgates.

The District also owns the land in the recreation area that abuts the resaca, but leases it to the City for use as a park. The park is free and open to the public. The City maintains the park. The City's lease starts at the water's edge and extends to the meander line boundaries of the park. According to Mr. Magowick, a witness who was called by the Cantus, the District's responsibility begins at the edge of the water and extends into the resaca and the City's responsibility extends from the edge of the water on the westerly line of the resaca meander line or resaca property line. The street and bridge level of the park is much higher than the area of the park near the water's edge, and the approach to the bank of the resaca from the street near the bridge is quite steep. This bank is close to the floodgate pipes.

It is undisputed that Calixtro, a seven-year-old child of the Cantus, drowned in the waters of the resaca. He had accompanied his father on a visit to the home of his father's friend, Jesus Bolado, who lived a short distance from the resaca. After the two men had visited a short while, Mr. Bolado's six-year-old son, Jaime, called other friends, and the boys went outside to play at "Charlie's" house. The boys climbed down to the resaca by the steep bank, via a path referred to by Jaime as a "tunnel," which was near the West Robinson Street Bridge. The only details about how the drowning happened came from the only witness, Jaime, or descriptions of the event conveyed by other persons to either Calixtro Cantu, Sr. or the investigating officer.

Jaime testified that he, Calixtro, and two other boys left Charlie's house and proceeded along a narrow path down the slope to the flat land that bordered the resaca. He went "first" down the path and as he "got near the water," Calixtro was in the middle of the path. Calixtro wanted to get what they thought was a turtle (which was in the water and was, in reality, a bottle) when he, Jaime, pushed Calixtro and "he went down." Jaime, in response to specific questions relating to his pushing Calixtro, testified:

Q. Jaime, how did you push him?

A. Just like that (indicating).

Q. Were you going down the slope, down the path when you pushed him?

A. Yes.

Q. Or were you already down here on the flat ground?

A. I was already on the flat ground on the water.

Q. You were close to the water?

A. Yes.

Q. Did you know that he was going to fall into the water after you pushed him, Jaime?

A. Yes.

Q. You knew he was going to fall in?

A. Yes.

Q. How did you know that?

A. Because once you push somebody, he falls down.

Q. Did you know he was going to hurt himself?

A. Not that. Well, I think he wasn't because I was barely six years old. I didn't know he was going to hurt himself.

* * * * * *

The City did not call any witnesses.

MUNICIPALITY LIABILITY

There are only limited circumstances under which a city can be held liable for wrongful death damages pursuant to the Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. § 101.001 et seq. (Vernon 1986). The Cantus relied on Subchapter B of the Act ("Tort Liability of Governmental Units"), specifically, Tex.Civ.Prac. & Rem.Code Ann. §§ 101.021(2), 101.022, and 101.025(a) and (b).

Section 101.025 of the Tort Claims Act establishes the following threshold premise: a governmental entity has sovereign immunity to suit and waives that immunity only if liability arises under the Act. See generally, Poncar v. City of Mission, 797...