De La Garza v. City of McAllen
| Decision Date | 25 August 1994 |
| Docket Number | No. 13-92-481-CV,13-92-481-CV |
| Parties | Angel DE LA GARZA and Alma De La Garza, Appellants, v. CITY OF McALLEN, Appellee. |
| Court | Texas Court of Appeals |
Servando H. Gonzales, Jr., Ricardo A. "Ric" Ramos, McAllen, for appellants.
Robert L. Galligan, Michael H. Hearn, Jones, Galligan & Key, Weslaco, for appellee.
Before SEERDEN, C.J., and GILBERTO HINOJOSA and FEDERICO G. HINOJOSA, Jr., JJ.
Appellants sued the City of McAllen and Hidalgo County for wrongful death. The City filed a motion for summary judgment and a motion for partial summary judgment. The trial court granted both motions and appellants appeal. By two points of error, appellants contend that the trial court erred by granting the motion for summary judgment and motion for partial summary judgment. We affirm the partial summary judgment, reverse the summary judgment, and remand the case to the trial court for further proceedings.
On the evening of May 28, 1989, appellants' 16 year old son, Aaron De La Garza, was a passenger in a vehicle driven by Robert Garza. Garza, while under the influence of alcohol, fell asleep at the wheel and veered off the road into a 30-foot deep City-owned caliche pit. Aaron died as a result of the accident.
The caliche pit is located at the northeast corner of the intersection of North Bryan Road and Three Mile Line Road (FM 1924). Bryan Road is a straight, two-lane, paved road, 22 feet wide, with unimproved shoulders and no center stripe. The pit is approximately 30 feet deep, straight down, without any sloping, and in some places cuts into Bryan Road's right-of-way by 3 or 4 feet. The pit is a cavern of not less than 250 square feet. The original owner of the pit protected those traveling along the roadway by building mounds of dirt six to eight feet high next to the roadway. The City purchased the pit in 1977 for use as a landfill. The City subsequently erected a wire mesh fence along the road right-of-way. After the accident, a guardrail replaced the wire fence.
On May 8, 1991, appellants brought a wrongful death action against the City of McAllen and Hidalgo County under TEX.CIV.PRAC. & REM.CODE §§ 71.004 and 71.021 and the Texas Tort Claims Act. 1 Appellants alleged in their original petition that the pit was a special defect and that both the City and the County knew or should have known of the dangerous condition and should have made the condition reasonably safe. Specifically, appellants alleged 1) that the County had a duty to inspect, maintain, improve, work and repair its public roads, 2) that the County had removed the dirt mounds which the original owner had placed along the roadway to prevent vehicles from plunging into the pit, 3) that the County had erected no warnings signs, and 4) that the County knew that the pit, without artificial barriers, would pose an unreasonable risk of harm to users of the roadway. Appellants also alleged that the City owned the pit and knew of the unreasonable risk of harm and failed to warn of the dangerous condition or to make the condition reasonably safe. Appellants did not allege that the City had created the danger or owed a duty to the decedent. The City entered a general denial and asserted common law and statutory immunity against suit.
On May 14, 1992, the City filed a second amended answer, a motion for summary judgment and a motion for partial summary judgment. The City moved for summary judgment on the grounds that it had no duty to foresee the negligent conduct of Robert Garza, the intoxicated driver of the vehicle. The City offered excerpts from the depositions of Robert Garza and Department of Public Safety (DPS) Trooper Francisco Elizondo and the autopsy report from pathologist Dr. Ruben Santos as summary judgment evidence.
On June 3, 1992, appellants filed their response to the City's motion for summary judgment and motion for partial summary judgment. Appellants argue that the City, in the exercise of ordinary and prudent care, could reasonably have foreseen that a user of the road might accidently deviate from the ordinary course of travel and be seriously injured if a proper barrier was not placed between the pit and the paved street. Appellants contend that the magnitude of guarding against the injury and the burden of requiring the City to place a barrier around the pit is slight, and that but for the absence of a proper barrier the decedent would not have perished at the bottom of the pit. Appellants contend that there remains a material fact issue regarding the foreseeability element of proximate cause and, effectively, the foreseeability element of duty which preclude the granting of summary judgment.
Appellants offered the affidavit of Charles Ruble, an accident analyst, and excerpts from the depositions of Joseph Chappell and Calvin Gibson as controverting summary judgment evidence. Ruble's affidavit states that the pit created an unreasonable risk of harm and that the accident was a proximate and foreseeable result of the City's failure to erect a proper barrier between the pit and the asphalted pavement. Joseph Chappell, foreman of the company directed to dig the pit, testified that the original dirt barrier was placed alongside the roadway "for safety, to keep someone from running off the road, running off the road into the pit." Appellants also offered excerpts from the deposition of Calvin Gibson, the City Manager at the time the pit was purchased. Gibson remembered inspecting the property before it was purchased by the City. According to Gibson, "there was a border up there; and there was a fence and numerous signs up there, no dumping, because people would back their pickup trucks and throw stuff over the fence." Appellants argue that this evidence shows that it was reasonably foreseeable that, if the owner of the pit did not place a proper barrier between the pit and the paved street, a traveler along the roadway could accidently deviate from the ordinary course of travel and be seriously injured.
On June 8, 1992, appellants filed their second amended petition and abandoned all claims against Hidalgo County. On June 25, 1992, appellants filed a nonsuit as to Hidalgo County. Appellants alleged in their second amended petition that the City was negligent and grossly negligent. They alleged that the City knew that the pit, without artificial barriers or warning signs or lights, posed an unreasonable risk of harm to users of the roadway and failed to warn users of the road, specifically De La Garza, of the dangerous condition or to make the condition reasonably safe. In addition, appellants alleged that the caliche pit is a hidden special defect and a dangerous condition of such magnitude as to place a high duty of care on the City to protect the users of the road from it.
The City did not amend its motion for summary judgment or supplement its proof before the summary judgment hearing.
By their first point of error, appellants contend that the trial court erred by granting the City's motion for summary judgment because a material issue of fact exists as to whether the lack of a proper barrier was a proximate cause of Aaron De La Garza's death and, effectively, whether the City of McAllen had a duty to place a barrier between the pit and the roadway and to warn roadway users of the dangerous condition.
The order granting summary judgment does not specify the grounds upon which the trial court relied. Therefore, the judgment will be affirmed if any theory advanced by the City is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).
Actionable negligence consists of three elements: 1) a legal duty, 2) breach of that duty, and 3) injury proximately caused by the breach of duty. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). In order to establish liability in a negligence case, a plaintiff must prove the existence of a duty and a violation of such duty. Graff v. Beard, 858 S.W.2d 918, 919-20 (Tex.1993); Phillips, 801 S.W.2d at 525; El Chico, 732 S.W.2d at 311; Hanselka v. Lummus Crest, Inc., 800 S.W.2d 665, 667 (Tex.App.--Corpus Christi 1990, no writ); Peek v. Oshman's Sporting Goods, Inc., 768 S.W.2d 841, 845 (Tex.App.--San Antonio 1989, writ denied). The existence of a legal duty is usually a question of law for the court to decide from facts surrounding the occurrence in question. Mitchell v. Missouri-Kansas-Texas R.R., 786 S.W.2d 659, 662 (Tex.), cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990); Phillips, 801 S.W.2d at 525; Otis Eng'n Corp. v. Clark, 668 S.W.2d 307, 312 (Tex.1983); Wofford v. Blomquist, 865 S.W.2d 612, 614 (Tex.App.--Corpus Christi 1993, writ denied); Hanselka, 800 S.W.2d at 667-668. A trial court can properly dispose of a negligence case by summary judgment if it finds no duty in the actor, even if all of the facts alleged by the plaintiff are true. Wofford, 865 S.W.2d at 614.
The City moved for summary judgment on the sole ground that it owed no duty to foresee the negligent conduct of Robert Garza. The City alleged that no act or omission by the City caused the accident resulting in De La Garza's death and that the City, as a landowner, owes no duty to anticipate the negligent acts of travelers on adjacent roadways. The issue is whether the summary judgment evidence establishes as a matter of law that the City owed no duty to Aaron De La Garza.
The City relies primarily on the deposition testimony of Robert Garza to show that his driving while intoxicated and failure to stay on the right side of the roadway caused the accident. Garza testified that he had a history of alcohol use and driving while under the influence of alcohol. Garza also testified that he and the decedent had been drinking beer on the day of the accident. When asked if he remembered how the accident happened, Garza testified as follows:
A I just...
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City of McAllen v. De La Garza
...and remanded for a new trial, concluding that the City had failed to establish as a matter of law that it owed no duty to De La Garza. 881 S.W.2d 599, 605. The existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Great......