Fort Bend County Drainage Dist. v. Sbrusch

• Decision Date: 11 September 1991
• Docket Number: No. D-0022,D-0022
• Citation: 818 S.W.2d 392
• Parties: FORT BEND COUNTY DRAINAGE DISTRICT and Fort Bend County, Petitioners, v. Bennie SBRUSCH, Respondent.
• Court: Texas Supreme Court

Page 392

818 S.W.2d 392

FORT BEND COUNTY DRAINAGE DISTRICT and Fort Bend County, Petitioners, v. Bennie SBRUSCH, Respondent.

No. D-0022.

Supreme Court of Texas.

Sept. 11, 1991.

Rehearing Overruled Dec. 11, 1991.

Margaret A. Wilson, Paul S. Wells, Houston, William W. Kilgarlin, Austin, for petitioners.

Robert P. Gaddis, Houston, for respondent.

OPINION

COOK, Justice.

This case presents the question whether a governmental unit owed a legal duty to a private individual to repair a privately-owned bridge. Under the facts of this case, we hold that the governmental unit did not owe such a duty. Therefore, we reverse the judgment of the court of appeals, 788 S.W.2d 896, and affirm the judgment of the trial court.

In October 1955, Helen Wersterfer granted an easement across her land to Fort Bend County Drainage District ("District") for the purpose of constructing a drainage channel. In return for the grant of the easement, the District agreed to "construct and provide one bridge crossing of said creek channel adequate and suitable for normal agricultural uses." The District also agreed to "repair all damage to roads, passageways and fences resulting from the DISTRICT'S use in going to and from said easement and right of way." The District then constructed a wood bridge over the channel in a location specified by Wersterfer's agent. The land on each side of the bridge was subsequently sold to Kenneth Egger.

The bridge in question was one of many bridges over drainage channels in Fort Bend County. The District repaired these bridges when requested to do so by the landowners. The District typically took one or two years to make these repairs, as the granting of such requests was based on the availability of time, money and personnel. The District maintained a $200,000 budgetary line item for the maintenance of the drainage channels, including the repair of bridges.

In March 1981, Elton Tieman informed the District that the bridge was unsafe. Tieman did not own the land on either side of the bridge but had a right of way across it, as this bridge was the only way he could get to his land with his cotton picker. A bridge foreman, Pete Haik, came out and looked at the bridge, and Tieman showed him that the wood pilings under the bridge were rotten. Tieman testified that Haik told him, "We will take care of it." Tieman also testified that Zebesta, the District superintendent, told him "he was going to see what [the District] could do about it and talk to the bosses about it." By December 1981, the District had not repaired the bridge, nor had it placed a sign at or near the bridge warning of its dangerous condition.

In December 1981, Bennie Sbrusch crossed the bridge in a truck loaded with "bottom ash." As he was doing so, the bridge gave way, and Sbrusch's truck fell into the drainage channel. Immediately following the accident, the District cleaned out the drainage channel and constructed a new bridge to insure the proper operation of the channel.

Sbrusch brought the present action against the District and Fort Bend County (collectively, the "District") alleging negligence in failing to repair the bridge and failing to warn the public of its dangerous condition. The jury found the District 60 percent negligent and Sbrusch 40 percent negligent. The jury awarded damages for personal injuries of $75,000 and damages to the dump truck of $27,000. The District moved for judgment n.o.v. on four grounds: (1) the District did not have a legal duty to Sbrusch to maintain the bridge in question, (2) the District is protected by sovereign immunity, (3) the expenditure of public funds on a private bridge is unconstitutional, and (4) a finding of liability would be contrary to public policy. The trial court granted the District's motion for judgment n.o.v. but did not state the grounds for granting the motion. The court of appeals reversed and rendered judgment on the verdict for Sbrusch. 788 S.W.2d 896. We conclude the District did not have a duty to Sbrusch to repair Egger's bridge or warn Sbrusch of the dangerous condition. Therefore, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.

A court may render judgment n.o.v. if a directed verdict would have been proper. TEX.R.CIV.P. 301. When the trial court states no reason why judgment n.o.v. was granted, and the motion for judgment n.o.v. presents multiple grounds upon which judgment n.o.v. should be granted, the appellant has the burden of showing that the judgment cannot be sustained on any of the grounds stated in the motion. Monk v. Dallas Brake & Clutch Serv. Co., 697 S.W.2d 780, 783-84 (Tex.App.--Dallas 1985, writ ref'd n.r.e.). See also McKelvy v. Barber, 381 S.W.2d 59, 61-62 (Tex.1964) (stating the same rule with respect to instructed verdicts). Thus, if the judgment of the trial court can be upheld on any of the four grounds asserted in the District's motion for judgment n.o.v., the judgment must be affirmed.

Sbrusch based his suit on the Texas Tort Claims Act, which then provided that a governmental unit is liable for money damages for "death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state." TEX.REV.CIV.STAT.ANN. art. 6252-19 § 3 (Vernon 1970). ¹ Section 3 does not create new legal duties; it only waives governmental immunity in circumstances where a private person similarly situated would be liable. City of Denton v. Van Page, 701 S.W.2d 831, 834 (Tex.1986). In order to establish tort liability, a plaintiff must prove the existence and violation of a legal duty owed to him by the defendant. Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976); Coleman v. Hudson Gas & Oil Corp., 455 S.W.2d 701, 702 (Tex.1970). The existence of a legal duty is a question of law for the court although in some instances it may require the resolution of disputed facts or inferences which are inappropriate for legal resolution. Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex.), cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990).

First, while Sbrusch alleged in his original petition that the accident occurred on a "county bridge and roadway," Sbrusch subsequently abandoned any argument that the District owed him a duty as the owner or occupier of the bridge. Grounds of error not asserted by points of error or argument in the court of appeals are waived. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex.1990). In his brief to the court of appeals, Sbrusch does not advance the argument that the District owed him a duty as the owner or occupier of the bridge. In fact, Sbrusch affirmatively indicates that he is not relying upon such an argument, stating,

APPELLEES' [sic] throughout the trial of this cause tried to couch their defense in terms of a owner/occupier case. They went to great lengths to show that they did not own the BRIDGE. Their argument being that, since they did not own the BRIDGE, they did not have a duty to repair it.... [S]uch a defense is only illusory since it evades the central issue of the case. The central issue of the case is not "owner/occupier" status, but is the liability created when APPELLEES voluntarily assumed a duty and failed to carry out that duty with reasonable care.

Appellant's Brief at 6-7. Since Sbrusch abandoned the argument that the District owed him a duty as the owner or occupier of the bridge, we cannot consider it.

Second, the District did not create the dangerous condition and did not owe Sbrusch a duty on this basis. The testimony in this case was that the bridge collapsed because at least one of the wood pilings supporting the bridge was rotten and "disintegrated" due to age and exposure to the elements. No evidence was introduced that the District created the dangerous condition in some manner independent of the forces of nature, such as by improper construction of the bridge in 1955. Therefore, the District is not liable on the ground it created a dangerous condition.

Third, the District did not have a duty arising from the easement agreement. Under this agreement, the District agreed to repair "all damage to roads, passageways and fences resulting from the DISTRICT'S use in going to and from said easement and right of way." Even if this agreement includes repair of bridges, the District had no duty to repair damage due to age or rot, and no evidence was presented showing that the damage to the bridge was caused by the District's use going to and from its easement.

This brings us to Sbrusch's principal argument, that the District voluntarily assumed a duty to repair the bridge by the "promises" made by Haik and Zebesta. This Court has held that "one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby." Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976). See also Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). As Judge Cardozo once wrote, "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (1922) (emphasis added). ² This rule has evolved. As to third parties, the Restatement (Second) of Torts § 324A states the rule as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such...