Guillory v. Port of Houston Authority

• Decision Date: 20 January 1993
• Docket Number: No. D-1391,D-1391
• Citation: 845 S.W.2d 812
• Parties: John O. GUILLORY, Petitioner, v. PORT OF HOUSTON AUTHORITY, Respondent.
• Court: Texas Supreme Court

Page 812

845 S.W.2d 812

John O. GUILLORY, Petitioner, v. PORT OF HOUSTON AUTHORITY, Respondent.

No. D-1391.

Supreme Court of Texas.

Jan. 20, 1993.

Rehearing Overruled March 3, 1993.

Robert D. Rapp, H. Victor Thomas, W. James Kronzer, Jr., Houston, for petitioner.

M. Karinne McCullough, R. Stephen Ferrell, James Patrick Cooney, Reagan M. Brown, Jennifer Bruch Hogan, Houston, for respondent.

OPINION

HECHT, Justice.

The principal issue in this case is whether the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE §§ 101.001-.109, limits the liability of political subdivisions created by the Legislature under article XVI, section 59 of the Texas Constitution, for common law and federal maritime law tort claims. We hold that it does, and affirm the judgment of the court of appeals.

John O. Guillory, a longshoreman, was unloading cargo for Dixie Stevedores, Inc. when the truck he was driving flipped backwards off of a ramp and into a ship's hold. The truck was leased from the Port of Houston Authority, which owned it. The Port Authority is a navigation district created by the Legislature under article XVI, section 59 of the Texas Constitution. ¹ Act of June 14, 1927, 40th Leg., 1st C.S., ch. 97, 1927 Tex.Gen.Laws 256, 2257 (creation and organization of Harris County Houston Ship Channel Navigation District), amended by Act of April 29, 1957, 55th Leg., R.S., ch. 117, 1957 Tex.Gen.Laws 241, amended by Act of March 24, 1971, 62nd Leg., R.S., ch. 42, 1971 Tex.Gen.Laws 79 (name changed to Port of Houston Authority), amended by Act of May 25, 1987, 70th Leg., R.S., ch. 1042, 1987 Tex.Gen.Laws 3506, 3508 (organization and powers), amended by Act of May 28, 1989, 71st Leg., R.S., ch. 1019, 1989 Tex.Gen.Laws 4115 (organization and powers); see TEX.WATER CODE §§ 60.001-.414. Guillory sued both the Port Authority and Dixie Stevedores under state common law and federal maritime law, claiming damages for personal injuries caused by their negligence. A jury found that the truck was defective and attributed the negligence which caused Guillory's accident 95% to the Port Authority and 5% to Dixie. The jury awarded Guillory $284,614.04 actual damages and $500,000.00 exemplary damages. The trial court rendered judgment on the verdict that Guillory recover a total of $956,781.91 from the Port Authority, including $172,167.87 in prejudgment interest. ²

The court of appeals reformed the judgment to limit the Port Authority's liability to $100,000. 814 S.W.2d 119. The court reasoned that because a navigation district like the Port Authority is a political subdivision of the State which can act only in a governmental capacity and not in a proprietary capacity, Bennett v. Brown County Water Improvement Dist., 153 Tex. 599, 272 S.W.2d 498, 502 (1954), it is protected by governmental immunity except to the extent immunity has been waived by the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE §§ 101.001(2)(B), 101.025, 101.051. The Act limits the liability of a governmental unit like the Port Authority to $100,000 per person. TEX.CIV.PRAC. & REM.CODE § 101.023(b). The court concluded that this limitation was not precluded by federal maritime law.

Since the Tort Claims Act was passed in 1969, we have repeatedly held that "the waiver of governmental immunity is a matter addressed to the Legislature." Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976); accord, State Dept. of Highways & Public Transp. v. Dopyera, 834 S.W.2d 50, 54 (Tex.1992) ("Texas is immune from tort liability except as waived under the Tort Claims Act"); LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992) ("The school district, a governmental unit, is immune from liability ... unless that immunity has been waived by the Texas Tort Claims Act"); Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 211 (Tex.1989) ("Only when the legislature has clearly and explicitly waived the state's sovereign immunity may a cause of action accrue"); Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). Any waiver exposes governmental units to increased liability, the burden of which must eventually be born by the general populace. In the Tort Claims Act, the Legislature has undertaken to address the difficult conflicting policies associated with a waiver of governmental immunity. We consider the Legislature better suited than this Court to try to accommodate these policies, and therefore we continue to refuse to disturb the balance it has struck.

Guillory does not expressly urge that governmental immunity be abrogated altogether, although he does point out that courts in other jurisdictions have done so. Rather, Guillory asks that we limit the protection of immunity to governmental activities as opposed to proprietary activities. Guillory points out that municipalities are not immune from liability for their proprietary actions, TEX.CIV.PRAC. & REM.CODE § 101.0215, and argues that other units of government should not be treated differently. To allow one governmental agency immunity for its proprietary actions and deny immunity to another agency for the same conduct, Guillory argues, is irrational and violates state and federal constitutional guarantees of equal protection to victims of the conduct. If an activity could be conducted by a private entity, Guillory contends, a governmental entity should not be immune from liability for conducting the same activity. In this case the Port Authority leased trucks for profit, an activity Guillory contends is clearly proprietary. Guillory urges that the Port Authority should be responsible for the damages caused by its negligence in failing to equip the trucks with seat belts and adequate brakes.

We reject Guillory's arguments for a number of reasons. First, the limitation on immunity which Guillory seeks has the same effect as a waiver. If we accepted Guillory's definition of proprietary activities to include anything a private entity could do, the waiver would be expansive. Private entities can provide police and fire protection, operate prisons, and adjudicate disputes, activities which are also governmental; there are few activities indeed which are uniquely governmental. To waive immunity for all others would virtually vitiate immunity entirely. Even if the proposed waiver were narrower, however, it remains a matter for the Legislature, as we have consistently held.

This is especially so when the waiver for which Guillory argues is to be effected by excluding proprietary activities from the protection of immunity. The Legislature has assumed this very undertaking for municipalities, classifying proprietary and governmental activities and waiving immunity for the former. TEX.CIV.PRAC. & REM.CODE § 101.0215. In so doing, the Legislature has acted upon the authority of article XI, section 13 of the Texas Constitution, adopted in 1987. ³ This provision is a further indication of the will of the people that the waiver of immunity be left to the Legislature.

To accept Guillory's argument would require that we overrule Bennett v. Brown, 153 Tex. 599, 272 S.W.2d 498 (1954), and disapprove Lynch v. Port of Houston Authority, 671 S.W.2d 954 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.), and Smith v. Harris County Ship Channel Navig. Dist., 330 S.W.2d 672 (Tex.Civ.App.--Fort Worth 1959, no writ). In Bennett we held that governmental units created under article XVI, section 59 of the Texas Constitution are entirely governmental in function. Water improvement districts and other agencies created under this constitutional provision are different from municipalities in that the former are created by the Legislature for general public purposes, while the latter are created by consent of their inhabitants. This distinction provides a rational basis both in support of Bennett and in contradiction of Guillory's equal protection complaint. Inasmuch as the distinction remains valid, we decline to overrule Bennett.

It cannot be denied that applying immunity based upon the creation of the governmental unit instead of its function results in certain anomalies and inconsistencies. As Guillory points out, the Port of Galveston, owned and operated by the City of Galveston, is not as fully shielded by immunity as is the Port of Houston, a water navigation district, even though the two entities perform similar functions. However, one governmental unit cannot be denied the immunity to which it would otherwise be entitled simply because the Legislature has waived immunity for another governmental unit. One may disagree with the choices made by the Legislature, but one can hardly deny its power to choose. ⁴

Guillory's argument that federal maritime law precludes the Port Authority's claim of immunity is answered by our recent opinion in State Dept. of Highways & Public Transp. v. Dopyera, 834 S.W.2d 50, 51 (Tex.1992), where we stated: "Congress did not intend for maritime law to preempt a state's sovereign immunity law in this manner." Guillory contends that Dopyera is wrongly decided, and further, that it should be distinguished from the present case because it involved only property damage and not personal injuries. Although the distinction between the two cases exists, it does not justify a different view of maritime law preemption in this case. We decline to overrule Dopyera.

Finally, Guillory argues that the federal courts would not hold the Port Authority immune from suit under the Eleventh Amendment to the United States Constitution, but would allow an action like Guillory's even though it would be barred by immunity in state court. Guillory places principal reliance upon Jacintoport Corp. v. Greater Baton Rouge Port Comm., 762 F.2d 435 (5th Cir.), cert. denied, 474 U.S. 1057, 106 S.Ct. 797, 88 L.Ed.2d 774 (1986). However, in McDonald v. Board of Miss. Levee Comm'rs, 832 F.2d 901, 908 (5th Cir.1987), the Fifth Circuit reasserted its conclusion in Kamani v. Port of Houston Auth., 702 F.2d 612 (5th Cir.198...