County of Cameron v. Brown

• Decision Date: 23 May 2002
• Docket Number: No. 00-1020.,00-1020.
• Citation: 80 S.W.3d 549
• Parties: COUNTY OF CAMERON, Petitioner, v. Charlene Mills BROWN, individually, Clifton Linwood Brown, individually and as legal representatives of The Estate of Nolan Barrett Brown, deceased, and Jeff Farrington, Respondents.
• Court: Texas Supreme Court

80 S.W.3d 549

COUNTY OF CAMERON, Petitioner, v. Charlene Mills BROWN, individually, Clifton Linwood Brown, individually and as legal representatives of The Estate of Nolan Barrett Brown, deceased, and Jeff Farrington, Respondents.

No. 00-1020.

Supreme Court of Texas.

Argued October 3, 2001.

Decided May 23, 2002.

Rehearing Denied August 22, 2002.

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George Christian Kraehe, Willette & Guerra, Brownsville, for petitioner.

Brian L. Jensen, Jensen Rosen & Steinberg, Houston, David T. Bright, Watts & Heard, Corpus Christi, Joseph Prestia, Prestia & Ornelas, Edinburg, for respondent.

Justice O'NEILL delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice ENOCH, Justice BAKER, Justice HANKINSON, and Justice RODRIGUEZ joined.

In this wrongful-death action, plaintiffs claim that a failed block of lights at the end of an elevated and curving causeway, with narrow shoulders and limited access, suddenly and unexpectedly plunged motorists into darkness and constituted a premises defect for which the Texas Tort Claims Act waives governmental immunity. The trial court ruled that the plaintiffs' pleadings fail to state a claim under the Act, and granted the defendants' pleas to the jurisdiction. The court of appeals reversed, holding that the pleadings and evidence established a premises defect for which immunity was waived. 80 S.W.3d 594. We must decide whether the plaintiffs' pleadings, together with pertinent jurisdictional evidence, are sufficient to raise a premises-defect claim within the Act's immunity waiver.

The defendants argue that the failed lighting cannot under any circumstances constitute a premises defect because the resulting darkness was open and obvious, and not an unreasonably dangerous condition. But whether or not that ultimately proves to be the case, we hold that the pleadings and jurisdictional evidence do not affirmatively negate the existence of an unreasonably dangerous condition. Thus, the trial court should not have dismissed the plaintiffs' claims on this basis. The plaintiffs' pleadings do fail, however, to allege another necessary premises-defect element — that the plaintiffs did not actually know of the dangerous condition. Because the plaintiffs must be afforded an opportunity to amend to remedy this omission, we affirm the court of appeals' judgment reversing and remanding the case to the trial court.

I. Background

This case arises from an auto accident that occurred on the Queen Isabella Causeway, which is the only bridge connecting South Padre Island to the Texas mainland. Nolan Brown was crossing the causeway at about 3:00 a.m., traveling east toward South Padre, when he lost control of his truck. Brown's truck struck the concrete median that separates the two east-bound lanes from the two west-bound lanes, skidded, and turned over on its side. When it came to rest, Brown's passenger exited the vehicle through the sunroof. While Brown was attempting the same escape, an oncoming car driven by Hector Mucio Martinez crashed into Brown's truck. Brown died at the scene.

The record indicates that the causeway curves, has narrow shoulders, and rises at least 85 feet above the bay. Once drivers enter the causeway, a concrete median prevents them from turning around. When the accident in this case occurred, a block of streetlights on the causeway's eastern section was not functioning. The first part of the bridge was illuminated for traffic heading toward South Padre Island, but there was no illumination at the accidents' scene.

The State owns the causeway and its streetlight system. However, Cameron County assumed certain maintenance responsibilities over the causeway's streetlight system under an agreement with the Texas Department of Transportation ("TxDOT").¹ Correspondence between TxDOT and the County shows that maintaining the causeway's streetlights had been a problem since at least 1995. In November of that year, Kenneth Conway, a county park-system director, wrote to TxDOT's district engineer that thirty causeway streetlights were not functioning and presented a "serious safety hazard." In an April 1996 letter to TxDOT, Conway wrote that "inconsistent lighting on the causeway presents a safety hazard to the traveling public, particularly motorists who may be stranded in poorly lit sections." By August 1996, over thirty streetlights had failed, and the record indicates that at least that many were not functioning a month later when the accidents occurred.

Brown's survivors sued TxDOT, the County, the contractor the County hired to repair the streetlights, and Martinez. The plaintiffs alleged that Brown was stranded in a poorly lit section of the causeway when he was fatally injured, and that defective wiring caused the streetlights to fail, creating an unreasonably dangerous condition. They alleged that the causeway's condition constituted a premises defect, a special defect, or a misuse of personal property, for which the Tort Claims Act waives governmental immunity. Brown's passenger intervened to seek recovery for his own injuries.

TxDOT and the County filed special exceptions and pleas to the jurisdiction, arguing that the plaintiffs' allegations failed to state claims within the Act's sovereign-immunity waiver. Specifically, the defendants argued that providing roadway illumination is a discretionary function, so

that they owed no duty to ensure illumination on the causeway. Defendants further argued that there was no duty to warn motorists of the failed lighting because the defective condition, which they describe as "darkness," was open and obvious, and not an unreasonably dangerous condition as a matter of law.

In response, the plaintiffs acknowledged that the defendants had no initial duty to illuminate the causeway, but claimed that the decision to install streetlights gave rise to a nondiscretionary duty to maintain them. Plaintiffs further responded that, because the causeway entrance was illuminated, the sudden darkness from the block of failed lighting came upon drivers unexpectedly, thus leaving the question of the condition's open and obvious nature for the jury to consider.

After an evidentiary hearing, and without ruling on the defendants' special exceptions, the trial court granted the defendants' jurisdictional pleas, dismissed the claims against them, and severed them from the underlying claims against the contractor and Martinez. The court of appeals reversed the trial court's judgment, holding that (1) maintaining the causeway's streetlights was not a discretionary function exempt from the Tort Claims Act's immunity waiver, and (2) the plaintiffs' allegations and the pertinent jurisdictional evidence were sufficient to raise a premises-defect claim under the Act. 80 S.W.3d 594. We granted review to consider whether the plaintiffs' claims fall within the Tort Claims Act's sovereign-immunity waiver.

II. The Tort Claims Act

The State, its agencies, and subdivisions, such as counties, generally enjoy sovereign immunity from tort liability unless immunity has been waived. See TEX. CIV. PRAC. & REM.CODE §§ 101.001(3)(A)(B), 101.025; Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000). The Tort Claims Act expressly waives sovereign immunity in three general areas: "use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.'"² Able, 35 S.W.3d at 611 (quoting Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976)). But the Act does not waive immunity for discretionary decisions, such as whether and what type of safety features to provide. See TEX. CIV. PRAC. & REM.CODE § 101.056; State v. San Miguel, 2 S.W.3d 249, 251 (Tex.1999).

The Act provides that a governmental unit is liable for injury and death caused by a condition of 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(2). With respect to ordinary premises defects, however, the Act specifically limits the governmental duty owed to a claimant to "the duty that a private person owes to a licensee on private property." TEX. CIV. PRAC. & REM.CODE § 101.022(a). Thus, a governmental unit may be liable for an ordinary premises defect only if a private person would be liable to a licensee under the same circumstances.

A licensee asserting a premises-defect claim generally must show, first, that the defendant possessed — that is, owned, occupied, or controlled — the premises where the injury occurred. Wilson v. Texas Parks & Wildlife Dep't, 8 S.W.3d 634, 635 (Tex.1999) (per curiam denying petition for review) (citing City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex. 1986)). A property possessor must not injure a licensee by willful, wanton, or grossly negligent conduct, and must use ordinary care either to warn a licensee of a condition that presents an unreasonable risk of harm of which the possessor is actually aware and the licensee is not, or to make the condition reasonably safe. State Dep't of Highways & Pub. Transp. Payne, 838 S.W.2d 235, 237 (Tex.1992).

Here, the plaintiffs have not alleged that the defendants injured them willfully or wantonly, or that they were grossly negligent. And although the defendants argue generally, as a policy matter, that the court of appeals' decision impinges upon governmental units' discretion in deciding whether and what kind of lighting to install along roadways, they do not challenge the court of appeals' holding that the plaintiffs' claims in this case are based upon the defendants' maintenance of the causeway lighting and thus do not concern discretionary acts. Accordingly, we consider only whether the plaintiffs' pleadings and jurisdictional evidence are sufficient to allow them to maintain a premises-defect claim within the Act's immunity waiver.

III. Standard of Review

In deciding a plea to the...