Martinez v. U.S.

• Citation: 780 F.2d 525
• Decision Date: 16 January 1986
• Docket Number: No. 85-2087,85-2087
• Parties: Santiago MARTINEZ, et ux, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 525

780 F.2d 525

54 USLW 2389

Santiago MARTINEZ, et ux, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 85-2087.

United States Court of Appeals Fifth Circuit.

Jan. 16, 1986.

Bob Wortham, U.S. Atty., William Cornelius, Steven M. Mason, Asst. U.S. Atty., Tyler, Tex., for defendant-appellant.

George Chandler, Lufkin, Tex., James L. Branton, San Antonio, Tex., Claude Welch, Lufkin, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before WILL GARWOOD, PATRICK E. HIGGINBOTHAM, and W. EUGENE DAVIS, Circuit Judges.

OPINION

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We affirm a plaintiff's judgment under the Federal Tort Claims Act except insofar as we must modify the judgment to limit recovery to the amount of the plaintiff's previous administrative claim. We reject plaintiff's argument that the relevant law regarding consideration of inflation in the calculation of damages had changed between the filing of the administrative claim and trial of the lawsuit, and we therefore reject his contention that amendment of the ad damnum clause was properly allowed at trial.

I

Early on the morning of March 27, 1977, Martinez and a group of friends were drinking beer while driving from Diboll, Texas to the Jackson Hill Park swimming area on Sam Rayburn Reservoir. Upon their arrival, Martinez changed his clothes, ran toward the water, and dived into a very shallow portion of the lake. Martinez did not look at, touch, or in any way inspect the water before his dive. He fractured his neck and has since been severely crippled.

In accord with the procedures set forth in the FTCA, Martinez sought redress in 1979 from the federal agency that maintains the reservoir. His administrative claim for $2 million in damages was denied. In 1983, after filing this lawsuit but before trial, Martinez's complaint was amended to assert damages of $4.5 million. He cites a recent decision of this court as an "intervening fact," 28 U.S.C. Sec. 2675(b), that would justify the amendment.

In the ensuing bench trial, both sides relied on expert witnesses to support their positions on the issue of government negligence in maintaining Jackson Hill Park as a swimming area without signs warning about the dangers of diving. The existence of Martinez's own negligence was not seriously disputed. The district court credited Martinez's expert and found that the accident was caused by the negligence of both the government and Martinez, 65% and 35% respectively. Total damages were fixed at $4,496,128.34; Martinez was awarded 65% of that sum, or $2,922,483.42.

II

The United States argues that it breached no duty to Martinez because diving into shallow water without first inspecting the lake is obviously dangerous: there is no duty to "warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof." Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.1963). Texas, however, has abolished this "no duty" rule. Parker v. Highland Park, Inc., 565 S.W.2d 512, 517 (Tex.1978). The government's argument must therefore fail.

There is little doubt that Martinez was negligent. The United States accordingly cites a dictum in Brooks v. United States, 695 F.2d 984, 987 (5th Cir.1983), where we cited DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98 (1955), for the proposition that a person is not bound under Texas law to foresee the negligence of another. DeWinne, which is one of a line of cases dealing mostly with automobile accidents, has not been read broadly enough to absolve the government here. In their most recent discussions of DeWinne, the Texas appellate courts have said that "a person is not in law required to anticipate negligent or unlawful conduct on the part of another," Clifton v. Wilson Industries, 589 S.W.2d 498, 499 (Tex.Civ.App.--Texarkana 1979, writ ref'd n.r.e.) (citations omitted) (emphasis added), and that a person "is not entitled to close his eyes to that which is plainly visible to a person of ordinary prudence similarly situated," Browning v. Paiz, 586 S.W.2d 670, 674 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.) (citations omitted). In DeWinne itself, a jury verdict was allowed to stand even though it required the defendant to anticipate the plaintiff's negligent conduct. Thus, although Texas law abjures a per se rule requiring a person to anticipate the negligence of another, it does allow a trier of fact to find that a particular defendant should have anticipated the possibility of certain negligent conduct by a particular plaintiff.

The testimony of Martinez's expert was found credible by the trial judge, who concluded that both the government and Martinez were negligent. The conclusion that the United States breached a duty it owed to park patrons at the Jackson Hill area was sufficiently supported by this evidence.

III

The district court permitted Martinez to proceed on a claim whose ad damnum clause was amended to exceed the amount sought in his administrative claim. This is permissible only when there is either newly discovered evidence not reasonably discoverable when the claim was presented to the agency or allegation and proof of intervening facts relating to the amount of the claim. 28 U.S.C. Sec. 2675(b). Martinez offered three grounds for amending his claim. The first of those grounds-- that his attorney did not, at the time the administrative claim was filed, have adequate familiarity with the plaintiff's injury and the relevant law--was properly rejected by the district court. The second ground--that unforeseeable medical developments, which will enhance the plaintiff's lifespan and medical expenses, occurred after the filing of the administrative claim--was rejected for lack of proof. The district court, however, accepted the plaintiff's contention that an en banc decision of this court, which clarified the effect of inflation on damage awards under federal substantive law, was an "intervening fact" within the meaning of Sec. 2675(b). We conclude, to the contrary, that there was no change in the applicable law that could qualify as an "intervening fact."

Texas substantive law, including the elements of damages, applies here. 28 U.S.C. Sec. 1346(b). Texas law has long held that inflation can be considered in setting damages in personal injury cases. See Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260, 1267 (5th Cir.1975), and Texas cases cited therein. At the same time, there is a line of cases in our circuit holding that inflation is not to be considered when federal substantive law governs. We held in Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir.) (en banc), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975), that inflation was not to be considered in calculating damages under the Jones Act. In Standefer v. United States, 511 F.2d 101, 107 (5th Cir.1975), we applied Penrod Drilling to an FTCA case arising in Texas. In Weakley, however, we held that inflation was properly considered in a diversity case applying Texas tort law. In Bryan v. John Bean Div. of FMC Corp., 566 F.2d 541, 551 n. 11 (5th Cir.1978), we stated again that "Texas law allows inflation to be considered as an element of damages." Then, in Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir.1982) (en banc), modified on rehearing in other respects, 722 F.2d 114 (5th Cir.1983) (en banc), cert. denied sub nom. St. Paul Fire & Marine Ins. Co., --- U.S. ----, 105 S.Ct. 90, 83 L.Ed.2d 37 (1984), we overruled Penrod Drilling and concluded that inflation could be considered in Jones Act cases. Martinez argues that the amendment of his ad damnum clause was proper because, after that claim was filed and before he sought to amend his claim in the district court, we changed direction in Culver.

Assuming, without deciding, that a significant change in the law could in some circumstance be an "intervening fact" under Sec. 2675(b), we reject Martinez's argument. We note first that the district court correctly and expressly looked to Texas law, which has at all relevant times held that inflation is properly considered in the calculation of tort damages. Texas law was not affected by Culver, just as it had not been affected by Penrod Drilling. It is true that Standefer, and a dictum in Ferrero v. United States, 603 F.2d 510, 514 (5th Cir.1979), could have caused some confusion in this circuit about the use of inflationary factors when calculating damages in Texas FTCA cases. There was, however, no change at all in Texas law during the critical period between the filing of the administrative claim and the amendment at issue here. In any event, the plaintiff presented no evidence indicating that his attorney relied on Standefer or Ferrero when filing the administrative claim. There has accordingly been no "allegation and proof of intervening facts, relating to the amount of the claim. " 28 U.S.C. Sec. 2675(b) (emphasis added). We conclude that the district court erred in allowing Martinez to amend his claim.

IV

Although Martinez's ad damnum clause should have been limited to $2 million, the amount of his administrative claim, he was allowed to prove damages of $4,496,128.34. The district court reduced this to $2,922,483.42 to reflect the plaintiff's 35% comparative negligence. We must decide whether the judgment should be reduced to $2 million (the amount claimed in the administrative proceeding) or to $1.3 million (65% of $2 million). So far as we are aware, this question has never been squarely faced in any reported decision.

The FTCA provides, with two exceptions not applicable here, that a tort action against the United States "shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency." 28 U.S.C. Sec. 2675(b) (emphasis added). This provision will...