Jezek v. City of Midland

• Citation: 23 Tex.Sup.Ct.J. 518,605 S.W.2d 544
• Decision Date: 16 July 1980
• Docket Number: No. B-8917,B-8917
• Parties: David L. JEZEK et al., Petitioner, v. CITY OF MIDLAND, Respondent.
• Court: Supreme Court of Texas

Page 544

605 S.W.2d 544

David L. JEZEK et al., Petitioner, v. CITY OF MIDLAND, Respondent.

No. B-8917.

Supreme Court of Texas.

July 16, 1980.

Rehearing Denied Oct. 1, 1980.

Warren Heagy, Odessa, Erwin A. Elias, Waco, William B. Smith, Midland, for petitioner.

Joe M. Nuessle, Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Midland, for respondent.

BARROW, Justice.

Petitioner, David L. Jezek, brought this suit individually and as next friend of his minor son, Calvin Keith Jezek (Keith), against the City of Midland for personal injuries sustained by Keith as a result of an automobile collision which occurred at a blind intersection. Although the jury returned a verdict for Keith, the trial court rendered a take-nothing judgment for the City. The court of civil appeals affirmed. 586 S.W.2d 920.

The principal question involved is whether the "close proximity rule," which allows recovery against municipalities for accidents caused by physical defects within the street right-of-way, includes accidents caused by visual obstructions within the City's right-of-way. We hold that it does and, therefore, reverse the judgment of the court of civil appeals and remand the cause to that court for consideration of respondent's factual cross-points.

Keith Jezek received serious and permanent personal injuries resulting in irreversible brain damage when the vehicle in which he was driving was struck by another vehicle as he was entering a "T" intersection. This intersection was within the corporate limits of the City of Midland. Keith had come to a "rolling stop" on the northbound road of the intersection (Turner Road) and had driven his car a few feet into the east-west road (G. Y. Lee Road) in order to see if any cars were approaching. In doing so, he was struck by a vehicle proceeding east at a high rate of speed. At that time, a driver of a northbound vehicle had his vision impaired as to vehicles proceeding east because of a heavy growth of mesquite trees and brush on the sides of both roads at the southwest corner of the intersection. In order for a driver on the northbound road to see a vehicle approaching from left, it was necessary to pull about half a car length into the intersection. There was testimony that at least one other wreck had occurred at this intersection and it is undisputed that the City of Midland had been informed of the hazardous situation in existence. It had taken no action to rectify it because the appropriate City officials did not believe these were dedicated streets.

The jury found that mesquite trees and other brush had grown up at the southwest corner of the intersection in question and created an obstruction of view for vehicular traffic traveling north at the intersection in question. The mesquite trees and other brush were found to be located on the unimproved portion of the street known as the G. Y. Lee Road. The jury further found that the City of Midland knew or should have known of the obstruction of view and that the City did not maintain the intersection in a reasonably safe condition, and that this was negligence and a proximate cause of the accident. Negligence was also found on the part of Keith, and that 35% of the negligence causing the accident was attributable to him and 65% to the City. The trial court rendered a take-nothing judgment for defendant, presumably on the basis that the mesquite trees complained of were growing on the unimproved portion of the road as distinguished from in the traveled portion.

It is a well-established rule that the maintenance of streets in a safe condition is a proprietary function, and that a city is liable for its negligence in the performance of this function. Leroy K. Turvey v. City of Houston, Tex., 602 S.W.2d 517, 23 Tex.Sup.Ct.J. 447 (June 18, 1980); City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960); City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326 (1955). This duty is not limited to the traveled portion of the street alone, but extends to the prevention of defects outside the traveled or improved portion of the street if its proximity thereto renders it probable that such defect will result in injury to those using the improved portion of the street. City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Com.App.1931, holding approved); City of Dallas v. Maxwell, 248 S.W. 667 (Tex.Comm.App.1923, holding approved); City of Houston v. Jean, 517 S.W.2d 596 (Tex.Civ.App. Houston (1st Dist.) 1974, writ ref'd n. r. e.); City of Houston v. Glover, 335 S.W.2d 757 (Tex.Civ.App. Waco 1962, writ ref'd n. r. e.).

The basis for the "close proximity rule" was stated by this Court in City of Houston v. George, 479 S.W.2d 257 (Tex.1972), as follows:

"The basis of the liability was the rule that requires a municipality to protect the user of a roadway from a condition beyond the road itself but which presents a recognizable danger to the normal user of the road. . . ."

Citing Ynsfran v. Burkhart, 247 S.W.2d 907 (Tex.Civ.App. Austin 1952, writ ref'd n. r. e.), the court of civil appeals held that this rule was not applicable to a city's failure to remove an obstruction to view from its right-of-way although such obstruction made the street dangerous to motorists using the improved portion of the street.

The Ynsfran court explicitly recognized the Texas "close proximity" rule cited above but then elected to follow decisions from three other jurisdictions ¹ which hold that a governmental entity owes no duty to remove obstructions to view existing on an unimproved portion of the street. In so doing, the court set up a distinction between physical obstructions and visual obstructions which has no rational basis in fact. A street is not any safer when the obstruction on the right-of-way is visual and not physical. Indeed, such an obstruction probably has a greater likelihood of resulting in a multicar collision than would a physical defect.

In support of its opinion here, the court of civil appeals also cited ten cases from six jurisdictions collected in an annotation in 42 A.L.R.2d 817. We do not believe these cases justify the result the court reached. Four of these cases are not in point because they involve suits against counties and not municipalities. Bohm v. Racette, 118 Kan. 670, 236 P. 811 (1925); Goodaile v. Board of Com'rs, 111 Kan. 542, 207 P. 785 (1922); Barton v. King County, 18 Wash.2d 573, 139 P.2d 1019 (1943); Hidalgo v. Cochise County, 13 Ariz.App. 27, 474 P.2d 34 (1970). The rationale behind these cases is best stated in Barton. "To allow it (recovery) would be to hold, literally, that thousands of county road intersections are inherently dangerous. To so hold would impose an imponderable responsibility upon counties." 139 P.2d at 1021.

We recognize the problem of imposing this type of duty on counties. It would be a rigorous burden indeed for a rural county in a state such as Texas to police and remove vegetation from roads when they cause visual obstruction. This, however, is not the case before us. Our case is based upon a theory of proprietary function of government. Counties in Texas have no proprietary functions and thus would have no duty in this area. Leroy K. Turvey v. City of Houston, supra.

Although other cases urged by the City involve municipalities, they are also distinguishable. Williams v. City of Bristow, 350 P.2d 484 (Okl.1960), while containing dictum which would support the court of civil appeals opinion, turns on the fact that the obstruction involved was a giant Christmas tree. The Oklahoma court held that the celebration of Christmas by the City was a governmental function. Further, it was not shown that the obstruction was the proximate cause of the accident.

In Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (Ariz.1977), it was held that in the absence of a statute the City owed no duty for an obstruction caused by vegetation. However, a contrary result was later reached in Lake Havasu Irr. & Drain. Dist. v. Dubois, 117 Ariz. 511, 573 P.2d 911 (1977, review denied 1978). There the court held that a municipal corporation may be liable for a visual obstruction at an intersection if the evidence shows the conditions impeding a driver amount to a "hidden danger."

Likewise, the absolute rule in the State of Washington, as set out in Bradshaw v. City of Seattle, 43 Wash.2d 766, 264 P.2d 265 (1953), is limited by a caveat allowing recovery if an intersection is "inherently dangerous." See McGough v. City of Edmonds, 1 Wash.App. 164, 460 P.2d 302 (1969).

It is clear that none of the cases cited in support of the annotation require the same type of analysis that the decisions in our state mandate. Nor is it apparent that the close proximity rule was followed in those states.

We believe that proper application of the close proximity rule of this State dictates a contrary result. The close proximity rule holds that a defective condition need not be confined to the street itself, but may arise by reason of its proximity to the street which would render it not improbable that it would result in injury to those using the street in the ordinary manner.

This rule has been consistently followed for many years. In City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Com.App.1931, holding approval), Hazel Darnell recovered her damages from the City of Waco for personal injuries she sustained when the car she was traveling in collided with a stump located in an area outside the traveled portion of a street in Waco.

In City of Houston v. Jean, 517 S.W.2d 596 (Tex.Civ.App. Houston (1st Dist.) 1974, writ ref'd n. r. e.), the plaintiff was injured when the car she was driving ran into a ditch which ran parallel with a cross street she was entering. The street was dimly lit and there was no barrier or warning sign to alert a driver to the danger of the ditch. The court held the City liable as the ditch was in such close proximity to the street as to render travel unsafe.

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