City of Tyler v. Likes

Citation962 S.W.2d 489
Decision Date13 February 1998
Docket NumberNo. 95-1014,95-1014
Parties41 Tex. Sup. Ct. J. 174 The CITY OF TYLER, Petitioner, v. Adeline LIKES, Respondent.
CourtSupreme Court of Texas

Gregory P. Grajczyk, Longview, for Petitioner.

Willis Jarrel, Jr., Tyler, for Respondent.

PHILLIPS, Chief Justice, delivered the opinion of the Court, in which GONZALEZ, HECHT, ENOCH, OWEN, BAKER, ABBOTT and HANKINSON, Justices, join.

This is a suit for flood damage brought against a municipality under the Texas Tort Claims Act, common law, and the Texas Constitution. Floodwaters flowing through a municipal culvert system constructed before the Legislature passed the Tort Claims Act damaged plaintiff's home. The primary issue is whether plaintiff may recover from the City for mental anguish resulting from the flood. Additionally, we consider whether plaintiff may recover 1) for property loss due to the City's negligent proprietary activities before the Legislature brought storm sewer operation under the Tort Claims Act by reclassifying it as a governmental function in 1987, 2) for common law nuisance, or 3) for unconstitutional taking of property for public use. The trial court granted summary judgment for the City on all plaintiff's claims, but the court of appeals reversed and remanded the entire case for trial. Likes v. City of Tyler, 910 S.W.2d 525 (Tex.App.--Tyler 1995). The City applied to this Court for writ of error.

We hold that plaintiff in this case cannot recover damages for mental anguish arising out of harm to her property. We further hold that the City established its right to summary judgment on plaintiff's causes of action based on nuisance, taking, and any negligent conduct occurring after the effective date of the Tort Claims Act in 1970. However, because we also hold that the City did not establish its right to summary judgment on plaintiff's common law action for negligent pre-1970 construction of its culvert system, we remand this cause to the trial court for further proceedings on that issue.

I

During the early morning hours of April 5, 1986, heavy rains flooded the Azalea District watershed in Tyler, Texas. An open drainage channel running across Adeline Likes's property directed water through two drainage culverts just east of her property. That morning, floodwaters overflowed from the channel, sending a neighbor's landscape timber crashing through a window in Likes's split-level home. Three and one-half feet of water and debris entered the lower floor.

Likes, asleep upstairs during the flooding, discovered the damage at 5:30 a.m. when she went downstairs for the morning paper. There was no longer any standing water in the house, but the floodwaters had ruined the walls, carpet, furniture, and various assets of her interior decorating business. Additionally, the water had destroyed Likes's personal records, family correspondence, family photographs and keepsakes, and damaged her two automobiles parked in the driveway.

Likes sued the City of Tyler for negligently constructing and maintaining the culverts, negligently diverting water onto her property, and unconstitutionally taking her property for public use without compensation. Likes further pleaded that the City intentionally or negligently committed acts that caused a nuisance, but she did not plead that the operation of the culvert system was a nuisance by virtue of being abnormal or out of place in its surroundings.

Initially, Likes sought only to recover $100,000--the statutory maximum under the Tort Claims Act for property damage. Later, she amended her complaint to allege an additional $150,000 in mental anguish damages "from the loss of many personal irreplaceable items" and "because of her feelings of insecurity both for her home, personal property and personal safety during times of rainfall." Together, the two claims totaled the Tort Claims Act's maximum liability cap for personal injury and property damage. S ee TEX. CIV. PRAC. & REM.CODE § 101.023(a).

The City moved for summary judgment on the basis that sovereign immunity barred Likes's negligence claims. According to the City, the Tort Claims Act did not waive immunity for Likes's claims because she did not plead any property damages caused by the operation or use of a motor vehicle and because mental anguish is not a "personal injury" under the Act. See id. § 101.021. Moreover, the City argued that common law sovereign immunity barred Likes's claim for pre-1970 negligent construction of the culverts. See id. § 101.061. It also moved for summary judgment on Likes's nuisance and unconstitutional taking claims, supported by affidavits that it did nothing intentionally to divert the water to Likes's property. The trial court granted the City's entire motion for summary judgment.

Likes appealed each of the City's grounds for summary judgment, contesting all of the City's arguments except that her claim for property damages did not come within section 101.021 of the Tort Claims Act. The court of appeals reversed, holding that Likes's alleged mental anguish was a personal injury compensable under the Tort Claims Act. The court did not reach Likes's claims that the City was liable for property damages caused by its proprietary activities, that the Tort Claims Act's 1987 reclassification of storm sewer operation as a governmental function was unconstitutional, or that the City's actions were a nuisance and an unconstitutional taking. We granted the City's application for writ of error.

II

Under the Tort Claims Act, a governmental unit is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) 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.

TEX. CIV. PRAC. & REM.CODE § 101.021. Both parties apparently assume that improper construction or maintenance of the culverts, if proven, would constitute a condition or use of tangible real property that could subject the City to liability for resulting personal injuries. The flood damage to Likes's home did not arise from the use of a motor vehicle or motor-driven equipment, however, so she cannot avail herself of the Act's waiver of immunity for property damages. The court of appeals held that Likes's mental anguish is compensable as a personal injury and that she is therefore entitled to a trial because the Legislature has waived the City's sovereign immunity for such a claim.

The City argues that "personal injury" is a term of art in the Tort Claims Act that cannot include mental anguish derived from property damage, unaccompanied by physical injury. It points to Callaway v. City of Odessa, 602 S.W.2d 330 (Tex.Civ.App.--El Paso 1980, no writ), in which plaintiffs attempted to recover damages from a municipality for "annoyance and discomfort" resulting from a sewage back-up. In Callaway the court stated, "We hold that the annoyance and discomfort suffered by the Plaintiffs for the impairment of the use and enjoyment of their property in this case involves property damages, and is not covered by the Texas Tort Claims Act.... At best, the jury award was for mental anguish alone under circumstances where those damages cannot be recovered." Callaway, 602 S.W.2d at 334 (citations omitted). As in Callaway, the City reasons that Likes's mental anguish claim is merely derivative of her property damage claim, which is not actionable.

In evaluating these contentions it is important to remember that the Tort Claims Act does not create a cause of action; it merely waives sovereign immunity as a bar to a suit that would otherwise exist. Thus, unless Likes would have a claim for mental anguish under common law against a private defendant, we need not reach the question of whether mental anguish is a "personal injury" for which the Legislature has waived the City's sovereign immunity.

Texas does not recognize a general legal duty to avoid negligently inflicting mental anguish. See Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex.1993). While negligently inflicted anguish may be an element of recoverable damages when the defendant violates some other duty to the plaintiff, this depends on both the nature of the duty breached and the quality of proof offered by the plaintiff. For many breaches of legal duties, even tortious ones, the law affords no right to recover for resulting mental anguish. See, e.g., id. at 598 (noting that mental anguish is not recoverable in an action for negligent misrepresentation). Likes alleges that the City caused her mental anguish by negligently flooding her house and causing "the loss of many personal and irreplaceable items." The first question in this case, then, is whether the law imposes mental anguish damages for a breach of the duty to exercise ordinary care so as not to negligently injure another's property.

Although mental anguish is a real and serious harm, there are two principal reasons why courts are not willing to recognize it as a compensable element of damages in every case where it occurs. First, it is difficult to predict. The invasion of the same legal right may lead to extreme anguish in one person while causing essentially no emotional damage to another. Because of this variability in human nature, it is difficult for the law to distinguish between those instances when mental anguish is reasonably foreseeable from particular conduct and those when it is so remote that the law should impose no duty to prevent it. For this reason, Texas courts at one time...

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