Genzer v. City of Mission

• Decision Date: 26 May 1983
• Docket Number: No. 13-82-015,13-82-015
• Citation: 666 S.W.2d 116
• Parties: John Felix GENZER, Jr., et al, Appellants, v. The CITY OF MISSION, Texas, et al, Appellees.
• Court: Texas Court of Appeals

Page 116

666 S.W.2d 116

John Felix GENZER, Jr., et al, Appellants, v. The CITY OF MISSION, Texas, et al, Appellees.

No. 13-82-015.

Court of Appeals of Texas Corpus Christi.

May 26, 1983.

Rehearing Denied Aug. 31, 1983.

Second Rehearing Denied Oct. 6, 1983.

Larry Watts, Houston, Broadus A. Spivey, and Paul E. Knisely, Austin, for appellants.

B. Buck Pettitt, John E. Lewis, Ronald B. Layer, McAllen, Gordon L. Briscoe, Harlingen, F. Van Huseman, Corpus Christi, David Hockema, McAllen, for appellees.

Before BISSETT, YOUNG and KENNEDY, JJ.

OPINION

YOUNG, Justice.

This is a personal injury case. Appellants brought suit against the appellees and other defendants not involved in this appeal, for personal injuries resulting from the explosion of a firework during a fireworks display on July 4, 1973.

On July 4, 1973, appellants John Genzer, Sr. and wife, Audrey Genzer, John Genzer, Jr. and wife, Mary, and their twin daughters, Melissa and Jennifer, went to a field, owned by the City of Mission, adjacent to the Catholic War Veterans Post in Mission, Texas to observe a fireworks display. They were directed to a designated parking area by members of the Mission Volunteer Fire Department and Mission Police Department. The family was traveling in two vehicles and, upon arrival, consolidated into a pickup truck owned by John Genzer, Sr. They were joined in the pickup by appellant Javier Sanchez. Toward the end of the display, one of the fireworks exploded near the rear end of the bed of the pickup. As a result of the explosion, all of the appellants suffered various physical injuries, and Melissa Genzer died approximately three and one half hours after the explosion as a result of injuries received from the explosion.

Originally, four separate causes of action were brought by these appellants. These actions were Cause No. A-12,561, John F. Genzer, Jr., et al vs. Alamo Fireworks, Inc., et al, in the 92nd Judicial District Court; Cause No. C-12,863, John F. Genzer, Sr. and Audrey Genzer vs. Alamo Fireworks, Inc., et al; Cause No. C-12,939, Mary Genzer Pape, et al vs. Alamo Fireworks, Inc., et al; C-12,685, Javier Juan Sanchez, a minor, et al vs. Alamo Fireworks, Inc., all in the 139th Judicial District Court. These actions were consolidated prior to trial. Appellants alleged causes of action for negligence against the Catholic War Veterans who sponsored the display and appellee, City of Mission who allegedly was responsible for the display. Additionally, the appellants alleged causes of action for products liability against appellee Hosoya Fireworks Company Ltd., the alleged manufacturer of the fireworks, and against Alamo Fireworks, Inc., the distributor of the fireworks. Defendants Catholic War Veterans and Alamo Fireworks, Inc. both settled with appellants and are not parties to this appeal.

Trial was to a jury who, in response to the special issues, found a total of $528,912.75 in damages for the various appellants. The jury found that the negligent acts of the appellee City of Mission was each a proximate cause of the appellants' injuries. The jury rejected the issues concerning the strict liability of appellee Hosoya and refused to find that Hosoya was the manufacturer of the defective firework.

In response to the appropriate motions, the trial judge granted a judgment n.o.v. for appellee City of Mission and a mistrial as to appellant Jennifer Genzer. Based on the fact that defendant Alamo had entered into a "Mary Carter" settlement with appellants, the action of the trial court in granting the City of Mission's motion for judgment n.o.v., coupled with the jury's finding absolving defendant/appellee Hosoya of liability, effectively limited the appellants' recovery to their settlement with defendants Alamo and the Catholic War Veterans.

In their first three points of error, appellants complain of the trial court's action in granting the motion for judgment n.o.v. of appellee City of Mission. These three points of error really present only one question for our consideration and that is whether the evidence is sufficient to sustain liability against the City of Mission under the provisions of Article 6252-19, TEX.REV.CIV.STAT.ANN. (Vernon Supp.1982) entitled the Torts Claims Act.

To sustain the action of a trial court in granting a motion for judgment n.o.v. we must determine that there is no evidence to support the jury's findings. In making this decision we must "review the record in the light most favorable to the jury findings considering only the evidence and inferences which support them, and rejecting the evidence and inferences contrary to the findings." Williams v. Bennett, 610 S.W.2d 144 (Tex.1980); Bitter v. Associated Indemnity Corp., 612 S.W.2d 715 (Tex.Civ.App.--Corpus Christi 1981, no writ).

Prior to the enactment of the Texas Torts Claims Act, a city was not liable for the negligent acts of its agents and employees in performing its governmental functions. A city was liable for unlimited damages, however, when negligently performing its proprietary functions. Turvey v. The City of Houston, 602 S.W.2d 517 (Tex.1980); Cronen v. Nix, 611 S.W.2d 651 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 636, 1981.

The Texas Torts Claims Act expressly waives governmental immunity for all governmental units to the extent of the liability expressed in the Act. Turvey, supra. See GREENHILL and MUSTO, Governmental Immunity, 49 Tex.L.R. 462 (1970-1971). The Act expressly preserves a claimant's common law right to seek unlimited damages for the negligent acts of a municipality while it is engaging in a proprietary function. TEX.REV.CIV.STAT.ANN. Art. 6252-19, 18(a) (Vernon Supp.1982). The waiver of immunity found in the Torts Claims Act is in three general areas: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. City of Baytown v. Townsend, 548 S.W.2d 935 (Tex.Civ.App.--Houston [14th Dist.] 1971, writ ref'd n.r.e.).

The courts of this state long ago established guidelines for determining whether a particular activity is governmental or proprietary. Garza v. Edinburg Consolidated Independent School District, 576 S.W.2d 916 (Tex.Civ.App.--Corpus Christi 1979, no writ). Generally, activities carried on pursuant to the State's obligation to promote the general welfare of the public or which are voluntarily assumed for the benefit of the public are performed in a governmental capacity. Activities performed primarily for the benefit of the inhabitants of the affected entity or agency are proprietary.

The first question we must resolve is whether the act of putting on the fireworks display was that of the City of Mission or, as is suggested by the City, merely the act of the Catholic War Veterans being consummated by various individual volunteers all of whom happen to be members of the Mission Volunteer Fire Department and Police Department. A review of the evidence clearly demonstrates that the act of putting on the fireworks display was that of the City of Mission. Although it is apparent that the majority of the individuals conducting the display were volunteer members of the Mission Volunteer Fire Department, it is equally apparent that the principals involved were paid members of the fire department acting in their official representative capacities. The record clearly shows that the entire project was under the supervision and on-site authority of City Fire Marshall P.H. King and City Fire Chief Ben Jackson, both of whom were paid employees of the City of Mission. The record also demonstrates that the control of the parking and spectators generally was exercised by on-duty members of the Mission Police Department.

Of particular significance is TEX.REV.CIV.STAT.ANN. Art. 9205 (Vernon Supp.1982) which provides in Section 10 that the chief of the local fire department is to be responsible for investigating, approving and supervising fireworks displays. Plaintiffs' Exhibit 15, which is the application for the fireworks display in question, designates Chief Jackson as the supervisor and further describes him in his official, paid capacity as Fire Chief of the City of Mission. Clearly the act of putting on the fireworks display was committed by the City of Mission by and through its fire and police officials.

Having determined that the fireworks display was an act of the City of Mission, we must now address the question of whether this act was governmental or proprietary in nature. The appellee City argues that if the acts in question were those of the City, such acts were in the nature of fire and police protection which are exempt from liability under the Torts Claims Act, Section 14(9). We do not agree with the analysis. In State v. Terrell, 588 S.W.2d 784 (Tex.1979) it was determined that Section 14(9) of the Torts Claims Act exempts governments from liability for their decisions as how to provide police and fire protection, not from specific acts of negligence occurring while in the course and scope of employment. See Forbus v. The City of Denton, 595 S.W.2d 621 (Tex.Civ.App.--Fort Worth 1980, writ ref'd n.r.e.). Clearly, the Mission Police Department was performing its normal function of directing traffic and enforcing the traffic laws of the city. Based on the provisions of Article 9205, the Mission Volunteer Fire Department was also acting in its governmental function of protecting the city from fires resulting from the fireworks display. This function was in the form of total supervision of the display.

It is undisputed that the property on which the fireworks display was being held and on which the appellants were parked at the time of the accident belonged to the City of Mission. It is also undisputed that the land was being used with the knowledge and consent of the City of Mission. It is also undisputed that the City had notice of the appellants' claims. The record shows...