Cobb v. Texas Dept. of Criminal Justice

• Decision Date: 05 March 1998
• Docket Number: No. 01-96-00954-CV,01-96-00954-CV
• Citation: 965 S.W.2d 59
• Parties: Doyle Dean COBB, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Texas Department Of Criminal Justice, Institutional Division, Charles James, & Roy Corley, Appellees. Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 59

965 S.W.2d 59

Doyle Dean COBB, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Texas Department Of

Criminal Justice, Institutional Division, Charles

James, & Roy Corley, Appellees.

No. 01-96-00954-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

March 5, 1998.

Doyle Dean Cobb, Huntsville, for Appellant.

Linda M. Kearney, Austin, for Appellees.

Before O'CONNOR, MIRABAL and NUCHIA, JJ.

OPINION

O'CONNOR, Justice.

This is a negligence claim brought by an inmate of the Texas Department of Criminal Justice. We reverse and remand the case for further proceedings.

Facts & Procedural History

Doyle Dean Cobb, the plaintiff, is an inmate of the Texas Department of Criminal Justice in Huntsville, Texas (TDCJ). On July 25, 1995, while working in the butcher shop at the prison, he slipped on the floor and fell, cutting his hand on the saw he was using. He filed a grievance with the TDCJ, which was sustained. He then filed suit against the TDCJ and the Texas Department of Criminal Justice-Institutional Division (together referred to as TDCJ), and Charles James and Roy Corley, two TDCJ employees who supervised the plaintiff while he worked in the butcher shop (collectively, the defendants). The plaintiff sued Corley and James for negligence, alleging they acted in bad faith and with callous and reckless disregard for his rights and welfare. He sued the TDCJ under the Texas Tort Claims Act, TEX. CIV. PRAC. & REM.CODE s101.021(a), claiming the TDCJ's employees' negligence caused his injuries. The plaintiff alleged the defendants acted in a grossly negligent manner. He claimed the dangerous condition of the butcher shop floor was known to Corley and James and that at least two other people had been injured on the floor in the past.

The defendants answered, claiming quasi-judicial, official, and sovereign immunity, and that the plaintiff did not plead a condition or use of tangible property.

The plaintiff moved for summary judgment, claiming the evidence produced through discovery proved the defendants' negligence as a matter of law. The defendants also filed a motion for summary judgment. Before the trial court ruled on either motion, the plaintiff supplemented his complaint, adding claims of gross negligence against James and Corley.

The trial court denied the plaintiff's motion and granted summary judgment for the defendants. On appeal, the plaintiff raises the following points of error: (1) the trial court erred in not granting his motion for summary judgment, and (2) the trial court erred in granting summary judgment for the defendants.

Summary Judgment Standard

Summary judgment is proper only if the movant establishes there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Bangert v. Baylor College of Medicine, 881 S.W.2d 564, 566 (Tex.App.--Houston [1st Dist.] 1994, writ denied). We will affirm if any of the theories advanced in the motion for summary judgment is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

In reviewing the summary judgment, we indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Bangert, 881 S.W.2d at 565-66. In our review, we assume all the evidence that is favorable to the nonmovant is true. Johnson, 891 S.W.2d at 644; Bangert, 881 S.W.2d at 565.

A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.--Houston [1st Dist.] 1993, writ denied). A defendant is also entitled to summary judgment if he conclusively establishes all elements of an affirmative defense as a matter of law. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991); Bangert, 881 S.W.2d at 566.

Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. The nonmovant must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Marchal, 859 S.W.2d at 412.

1. Plaintiff's Motion for Summary Judgment

In point of error one, the plaintiff argues the trial court erred in not granting his motion for summary judgment. He claims the evidence on file and attached to his motion for summary judgment established the defendants were negligent as a matter of law. The summary judgment evidence merely raises the issue of the defendants' negligence; it does not establish the defendants' negligence as a matter of law.

We overrule point of error one.

2. Defendants' Motion for Summary Judgment

In point of error two, the plaintiff argues the trial court erred in granting summary judgment for the defendants. He argues the defendants did not prove they were entitled to governmental immunity as a matter of law.

The defendants respond that the trial court properly granted summary judgment in their favor. They make the following arguments in favor of affirming the judgment: (1) the plaintiff's injuries were caused by a premises defect, thus his claim must satisfy the requirements of TEX. CIV. PRAC. & REM.CODE § 101.022; (2) Corley and James are protected against any claims of negligence by TEX. GOV'T CODE s497.096 and common-law official immunity; and (3) the defendants proved Corley and James were not grossly negligent and thus, are not liable under TEX. GOV'T CODE s497.096.

A. The Tort Claims Act & Premises Defects

The Texas Tort Claims Act provides governmental liability for personal injuries caused by a condition of real property if the governmental unit would, were it a private person, be liable under Texas law. City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex.1997). The Act provides different standards of care depending on whether the claim arises from an ordinary premise defect or a special defect. Id.; see TEX. CIV. PRAC. & REM.CODE s101.022 (1998). If the condition causing the injury was an ordinary premise defect, the governmental entity owes the claimant the same duty that a private landowner owes a licensee. Roberts, 946 S.W.2d at 843; TEX. CIV. PRAC. & REM.CODE s101.022(a). The duty a landowner owes a licensee is not to injure the licensee through willful, wanton, or grossly negligent conduct. State Dep't of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992). However, if the landowner has knowledge of a dangerous condition and the licensee does not, the landowner has a duty either to warn the licensee or to make the condition reasonably safe. Id.

Because the Act does not define the words "premises defect," the courts look to the ordinary meaning of the words. Billstrom v. Memorial Med. Ctr., 598 S.W.2d 642, 646 (Tex.App.--Corpus Christi 1980, no writ). "Premises" is defined as a building, its parts, grounds, and appurtenances. Id. A "defect" is defined as an imperfection, shortcoming, or "want of something necessary for completion." Id.

We find the cause of the plaintiff's injury, the slippery, uneven floor of the butcher shop, was a premise defect. See State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974) (a slippery floor held to be a premise defect); Brazoria County v. Davenport, 780 S.W.2d 827, 828-29 (Tex.App.--Houston [1st Dist.] 1989, no writ) (wet, slippery sidewalk was premise defect); Blankenship v. County of Galveston, 775 S.W.2d 439, 441-42 (Tex.App.--Houston [1st Dist.] 1989, no writ) (slippery, wet algae growth on rocks at the base of stairs leading down from the Galveston sea wall was a premise defect, not a special defect); see also University of Texas Med. Branch v. Davidson, 882 S.W.2d 83, 85-86 (Tex.App.--Houston [14th Dist.] 1994, no writ) (a defective elevator, while a separate piece of equipment, was held an integral part of the building, thus a premise defect); Billstrom, 598 S.W.2d at 646-47 (a defective window screen held to be a premise defect; the screen was an appurtenance to the building). Therefore, the duty the defendants owed to the plaintiff was not to injure willfully, wantonly, or through gross negligence. Payne, 838 S.W.2d 235, 237 (Tex.1992). Because the plaintiff knew about the defect, he can recover only if he can prove gross negligence or willful, wanton conduct. Weaver v. KFC Mgmt., Inc., 750 S.W.2d 24, 26 (Tex.App.--Dallas 1988, writ denied); see Davenport, 780 S.W.2d at 829 (because jury found plaintiff knew of slippery condition, on appeal, judgment could only be sustained if evidence supported finding of gross negligence of county). Thus, because the plaintiff admits he knew the floor was slippery and uneven, he may only recover under the Act if he can show Corley and James were grossly negligent or acted willfully or wantonly.

B. Gross Negligence of Corley & James

Gross negligence is the entire want of care which raises the conclusion that the act or omission was the result of conscious indifference to the welfare of the injured party. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Davenport, 780 S.W.2d at 829. Ordinary negligence rises to the level of gross negligence if the defendant's act or omission shows he was aware of the danger and did not care enough to avoid it. Burk Royalty, 616 S.W.2d at 920; Davenport, 780 S.W.2d at 829.

On appeal, the defendants argue their summary judgment evidence--work orders, training and safety logs, and their responses to the plaintiff's discovery requests--proved Corley and James were not grossly negligent. They claim the evidence proved Corley and James were not negligent and took steps to remedy the situation, ordering the floor to be repaired.

On appeal, the plaintiff argues the work orders showed Corley and James were grossly negligent because they were aware of the hazard and still required him to...