Guillory v. City of Beaumont, 09
| Decision Date | 28 January 1988 |
| Docket Number | No. 09,09 |
| Citation | 746 S.W.2d 16 |
| Parties | 45 Ed. Law Rep. 422 Marilyn GUILLORY and Clayton Guillory v. The CITY OF BEAUMONT. 87 177 CV. |
| Court | Texas Court of Appeals |
Appeal from the granting of what has been designated as a "Partial Summary Judgment". The suit was brought by the parents of Cynthia Guillory. Cynthia was run over and killed by a vehicle at a frequently-used pedestrian school crossing on Calder Avenue in Beaumont. Calder Avenue is one of the heavily traveled streets serving the west and the north end of Beaumont. The City had maintained a crossing guard for elementary school children for approximately 2 1/2 years at the corner of Calder and Oakland. The City had intentionally removed the crossing guard.
The parents sued the City of Beaumont, in its proprietary capacity, for the withdrawing of the crossing guard without putting into place any warning signs, devices or any alternative safeguards. The City sought a summary judgment, maintaining that the cause of action was against the municipality in its governmental capacity.
To prevail, the City must show that it is entitled to a judgment as a matter of law and that there are no genuine issues as to any material fact or facts. The street crossing involved was a block from Dick Dowling Elementary School. Cynthia was a young, 7-year-old student at the school. The boundaries of the Dick Dowling School, as to scholastics, were all entirely within the limits of the City of Beaumont, particularly in the eastern section of the city. It must be remembered that this is an appeal from the granting of a summary judgment. Therefore, if any genuine issue as to a material fact is shown that would defeat the City's motion, or if a legal question is raised to the effect that the City is not entitled to a judgment as a matter of law, the summary judgment must be reversed.
Ray Moore had worked as a crossing guard at the intersection in question for about 3 1/2 to 4 years. The Appellants' deceased child had met her death about 2 or 3 months following the withdrawal of the crossing guard by the City. Ray Moore was not and had not worked for the Police Department of the City. Ray was laid off October 31, 1985. Ray had no badge. He was not authorized to direct traffic. He did not do anything for the police department. He was not authorized to issue traffic tickets. His job was merely to see that the kids crossed the street safely. To do this, he would wait for a lag in the traffic. When the traffic was heavy or normal, Ray simply waited until the traffic had a lull or lag in it to shepherd the children across Calder. He did not try to stop or control the flow of traffic on Calder Avenue to conduct the children to the other side. During a break in the traffic, he would walk to the middle of the street and, if traffic then appeared, he would wave his hands and attempt to stop the cars so that the young scholastics could come across Calder Avenue with safety.
The traffic, in the morning, at the intersection in question, was described as very heavy with some of the motorists driving fast. The speed limit was, at one time, 30 miles per hour but this speed limit was removed. Some motorists were driving as fast as 40 or 50 miles per hour down Calder. Calder was also described as a principal east-west street from downtown Beaumont, out to the west end, and out to 11th Street and the freeway.
A fair reading and analysis of Ray Moore's duties and responsibilities shows that any control of the traffic on Calder was incidental to his major responsibilities. For the purposes of summary judgment proof, we perceive that an issue was raised that Ray was performing both proprietary functions and governmental functions when he acted as a crossing guard. Under the settled law, Beaumont could be liable under these circumstances. City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480 (1943); City of Beaumont v. Silas, 200 S.W.2d 690 (Tex.Civ.App.--Beaumont 1947, writ ref'd n.r.e.). See Kling v. City of Austin, 62 S.W.2d 689 (Tex.Civ.App.--Austin 1933, writ refused n.r.e.). We conclude that the trial judge erred in holding, as a matter of law, that Beaumont was acting solely in its governmental capacity, under this record, when it employed and placed the crossing guard at the crossing and, also, when it removed and discharged the crossing guard.
David Moore was a councilman for the City. He testified, in his deposition, that he recognized this crossing service as a function or service that the City participated in to help its own citizens and that this crossing guard service had been maintained by the City, at the crossing in question, for a number of years. Councilman Moore stated that it was a worthwhile service and he perceived that the failure to continue furnishing crossing guards endangered the lives of children at this and other busy intersections.
Proprietary functions of a city have been described as those functions which are intended primarily, for the private advantage or benefit of persons who reside within the city limits. Apparently, such is the case subjudice. We think this defeats Beaumont's claim to a summary judgment as a matter of law. This distinguishes those functions from the functions performed by a municipality for the general public. 40 TEX.JUR.2d Municipal Corporations, Sec. 685 (1976). We decide that a genuine issue as to a material fact is present in determining whether the maintaining, and then the eliminating, of the crossing guard was either a proprietary function or a combination of proprietary and governmental functions. This is true because, where a...
To continue reading
Request your trial
-
City of Beaumont v. Guillory
...in the trial court record. The parents purported to appeal from this order. The court of appeals reversed the order of the trial court. 746 S.W.2d 16. The intermediate appellate court wrote that whether the order was a final, appealable judgment was a "troublesome question," but concluded t......