Murphy v. Lower Neches Val. Authority

• Decision Date: 30 October 1975
• Docket Number: No. 7741,7741
• Citation: 529 S.W.2d 816
• Parties: Oscar MURPHY et al., Appellants, v. LOWER NECHES VALLEY AUTHORITY et al., Appellees.
• Court: Texas Court of Appeals

Page 816

529 S.W.2d 816

Oscar MURPHY et al., Appellants, v. LOWER NECHES VALLEY AUTHORITY et al., Appellees.

No. 7741.

Court of Civil Appeals of Texas Beaumont.

Oct. 30, 1975.

Rehearing Denied Nov. 21, 1975.

Provost, Umphrey, Doyle & Mehaffy, Port Arthur, for appellants.

O. J. Weber, Jr., Beaumont, for appellees.

STEPHENSON, Justice.

This is an action for damages for personal injuries to Wendell Keith Murphy, a minor. Suit was brought under the Texas Tort Claims Act against the Lower Neches Valley Authority (LNVA). This appeal is from a summary judgment granted LNVA.

The pleadings and summary judgment proof show Wendell was fourteen years old at the time he dove into an LNVA canal and struck his head on a hump or lump of clay protruding from the bottom of the canal. The waters of the canal were so muddy no one could see the humps by looking into the canal.

The recent Supreme Court case, State v. Tennison, 509 S.W.2d 560 (Tex.1974), construing the Texas Tort Claims Act, settled most of the questions presented in this case. That suit was one for damages when plaintiff slipped on a slick floor in a State Building in Austin. That Court made this statement in part:

'It is well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence (citing cases). An exception to the general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe (citing cases) . . .. Texas has conformed to the generally recognized rule that the duty to warn licensees of dangerous conditions arises only in those instances where the licensor knows of the condition likely to cause injury. Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App. (--San Antonio) 1954, writ ref'd n.r.e.) . . .. Actual knowledge, rather than constructive knowledge of the dangerous condition is required.' (509 S.W.2d 562)

The dangerous condition in this case was the presence of humps or lumps on the bottom of the canal. We proceed to examine the summary judgment proof to see if LNVA discharged its burden in accordance with the rules set forth in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). On a trial of the merits, plaintiffs would have the burden of proving that LNVA had knowledge of the dangerous condition And that Wendell did not. Therefore, on this motion for summary judgment LNVA had to prove as a matter of law that it had no knowledge of the dangerous condition Or that Wendell did. See Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970).

First as to the lack of knowledge by LNVA, how can a movant in a summary judgment case establish a negative factual situation (lack of knowledge) as a matter of law? Apparently this is a question about which little has been written. The summary judgment proof in the case before us shows the following: Thomas R. Galloway is the general manager. There are three superintendents--T. G. Morgan, outside; Earl Fackler, pumping plant; and R. B. Rodgers, engineering. There are between fifty and sixty employees, including thirty in maintenance and ten or eleven canal or levee riders. In view of the settled law that knowledge by an agent or employee is knowledge by the employer, did LNVA have to furnish affidavits by every one of its agents and employees that each did not know of the dangerous condition? We think not.

The summary judgment proof shows that--Thomas R. Galloway, the general manager; Thomas Glenn Morgan, the outside superintendent; and Walter Edward Pope the canal rider generally assigned to this area--they did not know of the dangerous condition which resulted in this injury. However, the summary judgment proof also shows that John Yancy, another LNVA canal rider, also checks the canal in question. There is no summary judgment proof that John Yancy did not know about the dangerous condition. Under this state of the record, has LNVA established lack of knowledge, as a matter of law? We conclude that it has not.

We have not been cited, nor have we found, a case in Texas or elsewhere passing directly upon this question. We proceed to establish a rule based upon common sense and general principles of law. Since the moving party is a legal entity having many employees and agents, it can discharge such burden only by establishing, as a part of its summary judgment proof, lack of knowledge on the part of each of the agents and employees having some duty pertaining to the alleged dangerous condition. Under our view of the law, a requirement that every employee and agent of the legal entity, regardless of his duties, swear to a lack of knowledge would defeat the purpose of the rule. On the other hand, when we require that everyone charged with any duty regarding the transaction in question to come forward in the summary judgment record, we have achieved the practical solution to the problem of establishing a negative fact as a matter of law.

As stated above, the trial court should have granted the motion for summary judgment if LNVA proved as a matter of law that Wendell knew about the dangerous condition. Wendell's deposition was considered as a part of the summary judgment proof. The deposition showed that Wendell had been swimming in the canal on many occasions before this incident occurred. He knew how deep the water was and knew there were humps and lumps on the bottom of the canal between a foot and a foot and a half high. However, the deposition also shows that he did not know the humps or lumps were at the exact spot where he dived in. He had dived from that exact spot before and had not hit anything. A question of fact was raised by this evidence, and LNVA did not prove as a matter of law that Wendell knew about the dangerous condition which resulted in his injury.

Sec. 16 of the Texas Tort Claims Act, Tex.Rev.Civ.Stat. art. 6252--19 (Supp. 1974--1975) contains the following provisions, in part:

'Except where there is actual notice on the part of the governmental unit that death has occurred or that the claimant has received some injury or that property of the claimant has been damaged, any person making a claim hereunder shall give notice of the same to the governmental unit against which such claim is made, reasonably describing the damage or injury claimed and the time, manner and...