Likes v. City of Tyler

• Decision Date: 07 July 1995
• Docket Number: No. 12-93-00273-CV,12-93-00273-CV
• Citation: 910 S.W.2d 525
• Parties: Adeline LIKES, Appellant, v. The CITY OF TYLER, Appellee.
• Court: Texas Court of Appeals

Page 525

910 S.W.2d 525

Adeline LIKES, Appellant, v. The CITY OF TYLER, Appellee.

No. 12-93-00273-CV.

Court of Appeals of Texas Tyler.

July 7, 1995.

Rehearing Overruled Aug. 25, 1995.

Willis Jarrel, Jr., Tyler, for appellant.

Gregory Grajczvk, Longview, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HADDEN, Justice.

Adeline Likes ("Likes") appeals from a summary judgment rendered in favor of The City of Tyler ("the City"). In her first of six points of error, she alleges that disputed material fact issues exist and that the trial court erred in granting the City's motion for summary judgment. We will reverse and remand.

According to the summary judgment evidence, Likes' home is located on Dobbs Street, in the first block west of Broadway in the City of Tyler. She conducts an interior decorating business out of her home. An open drainage channel, described by Likes as a creek, traverses from west to east across her property, and serves the Azalea District watershed of Tyler. Her home is partially built over the channel. East of Likes' property, the channel flows under the intersection of Broadway and Dobbs through storm sewers or culverts owned by the City. The channel continues on into another drainage channel, or creek, on the east side of Broadway.

In the early morning hours of April 5, 1986, the City experienced a heavy rainfall, and the channel across Likes' property overflowed. Flood waters and debris entered her home unimpeded. Decorating materials and furnishings belonging to Likes and her customers suffered irreparable water damage and had to be replaced. Significant damage also occurred to the structure and interior of the building. Personal property, including pictures of her children, her parents, her grandparents, and family letters, correspondence, records, and documents, were also destroyed. As a result of the flooding and the damage that occurred, she alleged that she suffered mental anguish for a considerable time thereafter.

Likes filed suit against the City alleging, inter alia, negligence in the maintenance of the storm sewers under Broadway and Dobbs streets which caused water to back up on her property. She sought recovery for personal injury damages resulting from this negligence. The City filed a motion for summary judgment alleging, among other defenses, that Likes' claim was barred by sovereign immunity, and that she had not suffered any kind of compensable injury. The trial court granted the City's summary judgment.

In her first point of error, Likes contends that the trial court erred in granting summary judgment since her claim falls within the statutory waivers of governmental immunity, and since disputed material issues exist regarding negligence of the City and her damages.

We will first address the sovereign immunity question. While engaged in the governmental function of maintaining its sewer system, the City enjoys sovereign immunity for its negligent acts, except to the extent that the TEXAS TORT CLAIMS ACT waives that immunity. Parr Golf, Inc. v. City of Cedar Hill, 718 S.W.2d 46, 47 (Tex.App.--Dallas 1986, no writ). THE TEXAS TORT CLAIMS ACT provides as follows:

A governmental unit in the state is liable for:

(1) property damage, personal injury and death proximately caused by the wrongful act or omission or the negligence of any employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX.CIV.PRAC. & REM.CODE § 101.021 (Vernon 1985) (hereinafter "the ACT").

The record discloses that no claim is being made by Likes that her damages arose from the operation or the use of a motor driven vehicle or motor driven equipment. See TEX.CIV.PRAC. & REM.CODE § 101.021(1) (Vernon 1985). However, Likes' complaint does address the operation and maintenance of the drainage channel and culvert belonging to the City, a condition or use of real property; therefore, the waiver described in Section 101.021(2) could apply to Likes' claim. If Likes' "mental anguish" is a "personal injury" under Texas law, the governmental immunity waiver under Section 101.021(2) of the ACT is applicable.

Mental anguish is a personal injury within the meaning of the TEXAS TORT CLAIMS ACT. Mokry v. Univ. of Texas Health Science Ctr., 529 S.W.2d 802, 804-05 (Tex.Civ.App.--Dallas 1975, writ ref'd n.r.e.). Generally, before awarding mental anguish damages, the majority of states, including Texas, require proof of a physical injury resulting from mental anguish or a physical manifestation of mental anguish. Moore v. Lillebo, 722 S.W.2d 683 (Tex.1986). However, the Texas Supreme Court noted in Moore that Texas courts have recognized exceptions to the general rule, and that these exceptions have involved cases of intentional torts, gross negligence, or a willful and wanton disregard for another's rights. Id. at 685. The court then enumerated further examples of cases where damages were awarded for mental anguish as an exception to the general rule, i.e., "wrongful dishonor of checks upon a showing of malicious intent; willful and unwarranted invasion of privacy; assault and battery; negligently delivered death message; and mishandling of a corpse." See Brown & Root, Inc. v. City of Cities Mun. Ut., 721 S.W.2d 881, 885 (Tex.App.--Houston [1st Dist.] 1986, no writ) (on reh'g), quoting Moore v. Lillebo. The reason for the exceptions appears to be that the nature of the tort assures that the claimants will suffer mental injury. Therefore, there is no need to require proof of physical manifestation of the mental injury. Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex.1973). Each of the decisions cited in Moore for this proposition rejected arguments that proof of physical injury should be required.

The City argues that Likes' claim does not fall within the statutory waivers described in the ACT since she is simply seeking to recover for the annoyance and discomfort suffered by the impairment of the use and enjoyment of her property, and that such claim involves property damages only. The City relies upon the holding in Callaway v. City of Odessa, 602 S.W.2d 330 (Tex.Civ.App.--El Paso 1980, no writ), as its primary authority. In Callaway, the City of Odessa had a sewer line which backed up, causing damages to the home of the plaintiffs. Id. 602 S.W.2d at 332. There, the court simply held that the "annoyance and discomfort" of plaintiffs involved property damage only and did not rise to the level of compensable mental anguish. Id. at 334. More recent Texas cases, however, have included in the exception mental anguish which has resulted from wrongful damage to one's property. Brown & Root, Inc., 721 S.W.2d at 881 (negligent maintenance of a culvert caused heavy damage to foundations of homes, as well as interior and exterior walls, rendering homes to be a total loss and uninhabitable ); Parr Golf, Inc., 718 S.W.2d at 46 (...