Mendoza v. City of Corpus Christi

• Decision Date: 31 October 1985
• Docket Number: No. 13-84-371-CV,13-84-371-CV
• Citation: 700 S.W.2d 652
• Parties: Francisco MENDOZA, et al., Appellants, v. CITY OF CORPUS CHRISTI, et al., Appellees.
• Court: Texas Court of Appeals

Page 652

700 S.W.2d 652

Francisco MENDOZA, et al., Appellants, v. CITY OF CORPUS CHRISTI, et al., Appellees.

No. 13-84-371-CV.

Court of Appeals of Texas,

Corpus Christi.

Oct. 31, 1985.

Rehearing Denied Dec. 5, 1985.

Russell H. McMains, Edwards, McMains & Constant, William J. Tinning, Corpus Christi, for appellants.

Darrell Barger, Hunt, Hermansen, McKibben & Barger; Jay B. Doegey, City Atty., Corpus Christi, for appellees.

Before NYE, C.J., and BENAVIDES and DORSEY, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a judgment non obstante veredicto granted by the trial court in a wrongful death and survival action. The survivors of Hector Mendoza originally filed suit against the City of Corpus Christi and J.W. Lanphier, the pier owner, after their son, Hector Mendoza, drowned in the waters of Lake Corpus Christi. The jury found in favor of the Mendozas. Upon motion by the City, the trial court granted a judgment non obstante veredicto. The Mendozas appeal. We affirm.

At the time of his death, Hector Mendoza was working for Lanphier Construction Company, removing debris from Lanphier's land which adjoined Lake Corpus Christi. On August 31, 1982, Mendoza told a co-worker he was going swimming. His co-workers later became concerned when he failed to return to work after a lunch break. His body was found about ten yards off Lanphier's pier in about two and a half feet of water. His neck was broken and the cause of death was drowning.

Appellants' theory of the case was that Mendoza met his death when he dove off the pier into the shallow water below. They alleged that the City of Corpus Christi was negligent in its failure to post warning signs that the water at the end of this pier was shallow. The jury found that the City had knowledge of the shallow water condition of the area where Mendoza dove; that the City in the exercise of ordinary care should have discovered this condition; that the City failed to give adequate warning of the dangerous condition; all of which constituted negligence and the proximate cause of Mendoza's injuries. They found that Mendoza was contributorily negligent to the extent of forty-nine percent. After the jury verdict, the trial court granted the City's motion to disregard the jury's answer to the special issue which inquired into the City's actual notice of a dangerous condition.

Appellants' first four points of error will be considered together since they all assert error by the trial court in granting the City's motion for judgment non obstante veredicto. In their first and second points of error, appellants assert that the trial court erred in granting the judgment non obstante veredicto because the evidence raised a fact issue for the jury concerning the City's knowledge of the dangerous condition and as to the City's causal negligence and liability. Appellants claim in their third and fourth points of error that the trial court's action was improper because whether the City had actual knowledge was immaterial since Mendoza was either an invitee or his status was not determinative because the City breached its duty of ordinary care to Mendoza.

In order to sustain the judgment notwithstanding the verdict, we must find that there is no evidence upon which the jury could have made the findings relied upon. The trial court, while acting on the motion before it, must consider all testimony in the light most favorable to the nonmovant. Every reasonable inference is to be indulged in the nonmovant's favor. Dowling v. NADW Marketing, Inc., 631 S.W.2d 726 (Tex.1982); Meyer v. Mack Sales, Inc., 645 S.W.2d 493 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.).

The City's duty to Mendoza in this instance is directly related to his status at the time of the accident. Was he a trespasser, a licensee or an invitee in this situation? A trespasser is one who enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in performance of any duties to the owner, but merely for his own purpose, pleasure or convenience. Rowland v. City of Corpus Christi, 620 S.W.2d 930. (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.). The legal duty the landowner owes a trespasser is only not to injure him willfully, wantonly or through gross negligence. Id. at 933. A licensee's presence on the premises is for his own convenience or on business for someone other than the owner. The duty owed a licensee is not to injure willfully, wantonly, or through gross negligence and to warn of or make safe dangerous conditions actually known. Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976); State v. Tennison, 509 S.W.2d 560 (Tex.1974). The standard of conduct required of a premises occupier toward his invitees is the ordinary care that a reasonably prudent person would exercise under all pertinent circumstances. Corbin v. Safeway Stores, 648 S.W.2d 292 (Tex.1983). The test to determine if an individual is upon the land as an invitee is whether the injured person has business relations with the owner at the time of the injury which would render his presence of mutual aid to both. Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975). Liability depends on whether the owner acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition. Corbin at 295.

The evidence in this case shows that Hector Mendoza was on Lanphier's property for the purpose of removing trash and debris. After eating lunch he decided to go swimming. He did not have permission from the landowner, his supervisor, or the City to swim or dive off the pier. He left the area around which he had been conducting business for Mr. Lanphier and proceeded on a venture of his own choosing.

The permit that was issued by the City to construct the pier was limited to fishing or loading purposes only. It was not a diving or swimming pier, nor was it open to the public for any purpose. Mendoza had no business relationship with the City, and there was nothing about his venture off the pier that was for the mutual benefit or aid to both himself and the City. It is clear from the undisputed evidence, therefore, that Mendoza was not an invitee. He was never given permission by the City to swim or dive into the waters at Lanphier's pier.

It is apparent that Mendoza was either a trespasser or, at most, a licensee. Actually, it is unnecessary for us to determine in this instance which status he carried because, under either theory, the evidence does not bear out the jury's finding that the City had actual notice of the shallow condition of the water in the particular area where Mendoza dove. There is no contention by the appellants, nor was there any evidence presented, that the City's conduct was willful, wanton or constituted gross negligence. Appellants did not plead nor did they prove any grossly negligent conduct on the City's part. If, indeed, Mendoza was a trespasser as to the City, which unquestionably he was, it is clear that the City was not liable because they committed no grossly negligent acts or omissions toward Mendoza.

In order for the City to be held liable under the best possible status (the licensee theory), Mendoza's survivors were required to prove that: 1) the City had actual knowledge that the Lake waters were shallow at Lanphier Pier; 2) they knew that Mendoza or someone of the same status would dive off the Lanphier pier; and 3) the City failed to warn Mendoza and/or make safe this allegedly dangerous condition.

Appellants' main argument is that the City's on-site...