Payne v. City of Galveston, B14-87-00793-CV

Citation772 S.W.2d 473
Decision Date11 May 1989
Docket NumberNo. B14-87-00793-CV,B14-87-00793-CV
PartiesDon PAYNE, et al., Appellants, v. CITY OF GALVESTON, et al., Appellees. (14th Dist.)
CourtCourt of Appeals of Texas

Page 473

772 S.W.2d 473
Don PAYNE, et al., Appellants,
CITY OF GALVESTON, et al., Appellees.
No. B14-87-00793-CV.
Court of Appeals of Texas,
Houston (14th Dist.).
May 11, 1989.
Rehearing Denied June 15, 1989.

Page 474

Kevin Dubose and Jim M. Perdue, Houston, for appellants.

John Eckel, Scott Lyford, Galveston, and W. Page Keeton, Austin, for appellees.

Before the court en banc.



On motions for rehearing filed by both Galveston County and the City of Galveston and having heard oral argument en banc, we withdraw our original opinion of August 18, 1988, and substitute the following therefor.

Summary judgments were granted in favor of both appellees in this case. Appellant Don Payne, individually and as next friend of Heather Payne, filed suit under the wrongful death and survival statutes against the City of Galveston (the city), Galveston County (the county) and others for damages arising out of the deaths of their wife/mother, Mrs. Judy Payne, and ten year old daughter/sister, Meredith Payne, which occurred during the Illinois family's 1984 summer vacation in Galveston.

The Paynes had been in Galveston visiting relatives, shopping and fishing for two or three days before the accident. During this period of time they had walked along the seawall and had observed the sharp drop-off and the boulders at the base of the seawall. On the day of the accident, the Paynes observed other people riding surreys on the seawall and they, then, rented two surreys. Mrs. Payne and Meredith rode in one and Mr. Payne and Heather rode in the other. After riding about a quarter of a mile on the side of Seawall Boulevard opposite the gulf, they crossed the boulevard and rode on the sidewalk along the edge of the seawall. Mr. Payne and Heather were in the lead. After travelling for some distance Payne heard his wife scream "Meredith"; he turned to see the surrey in which his wife and daughter were riding go over the edge of the seawall. Mrs. Payne and Meredith both suffered head injuries from which they died.

The plaintiffs' causes of action against the city and the county rely on the theory of premises liability and the waiver of sovereign immunity in the Tort Claims Act, Chapter 101 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE, which establishes governmental liability for "personal injury and death so caused by a condition or use of ... real property...." Payne alleged seven acts of negligence:

(1) In failing to properly maintain the guard rail which had been previously erected along the edge of the Seawall;

(2) In failing to have in place a guard rail along the Seawall in the area where the incident occurred, on the occasion in question;

(3) In failing to have appropriate safety, protective or other restraining devices along the edge of the seawall in the area in question;

(4) In failing to have in place striping to designate lanes of travel on the seawall;

(5) In failing to warn of the dangers arising out of the use of surreys on the Seawall;

(6) In allowing the use of surreys on the Seawall;

(7) In failing to restrict the use of surreys to areas of the Seawall which were properly protected and equipped

Page 475

with restraining devices, guard rails or other safety devices.

Payne also specifically alleged the seawall to be a special defect as that term is used in § 101.022 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE.

Both the city and the county answered with a special plea of governmental immunity. Following extensive discovery, the county first moved for summary judgment. The basis for its motion was that under the Tort Claims Act, it did not violate any duty owed to the Paynes, as licensees. Later the city filed its motion for summary judgment asserting sovereign immunity and the fact that the seawall is neither owned nor maintained by the city. Alternatively, the city asserted that what little control it does have over the area is "traffic control," a governmental function. Therefore, its liability, if any at all, is limited by the Tort Claims Act. Judge Harris granted the motion of the city and, approximately one month later, Judge Dalehite granted the motion of the county. Neither order specified the basis upon which it was granted. Orders of severance were signed to finalize each judgment. Payne appeals.

Some background information on the Galveston seawall may be helpful in understanding the relative positions of the parties. The seawall and its containing wall, along with Seawall Boulevard and its flanking sidewalks, form component parts of a complex defensive barrier erected against the storm waters of the Gulf of Mexico. The original barrier was erected in 1902-04 by the county under authority of Articles 6830 and 6831 of the REVISED CIVIL STATUTES empowering counties and cities bordering on the gulf to construct seawalls, etc., as storm protection measures. The sixteen foot tall concrete monolith, which is the seawall, fronts the gulf and parallels it for more than ten miles; it in turn is paralleled and supported by a containing wall behind it. The space between the containing wall and the seawall is filled in with sand. The pavement of Seawall Boulevard and its adjacent sidewalks was constructed over the top of this sand-fill to protect it from the action of waters which wash over the seawall in a storm. The structural integrity of the seawall itself depends upon the pavement's preventing erosion of the sand-fill. The seawall, which is sixteen feet wide at the base, tapers to an approximate width of five feet at its top. The adjacent sidewalk atop the sand-fill is ten to fifteen feet wide. It abuts but does not cover the top of the seawall. The boulevard adds another seventy-five feet to the width of the structure. On the beach at the base of the seawall are piles of granite and limestone boulders, called "rip-rap", which stabilize the sand at the base of the wall from erosion. Although a guardrail was added to the original portion of the seawall shortly after its construction, the railing was not maintained and years ago it deteriorated and was not replaced. Today, the edge of the wall is unmarked and unprotected. The area atop the seawall formed by the sidewalk and the seawall itself is widely used for recreational activities. Citizens and tourists alike walk, jog, bicycle, skate and sunbathe on the pavement. Concessions, shops and restaurants abound.

A summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561, 563 (Tex.1976); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). The burden of proof is on the movant, and all doubt as to the existence of a fact issue is to be resolved against him. Roskey v. Texas Health Facilities Commission, 639 S.W.2d 302, 303 (Tex.1982) per curiam. Summary judgment on an affirmative defense is proper only if the movant establishes conclusively all the elements of the defense as a matter of law. Montgomery v. Kennedy 669 S.W.2d 309 (Tex.1984). Once the defendant establishes his right to judgment, the plaintiff can prevail by showing that an issue of fact exists as to one or more of those elements. Byrd International of Dallas, Inc. v. Electronic Data Systems Corp., 629 S.W.2d 177, 178 (Tex.App.--Dallas 1982, writ ref'd n.r.e.).

Page 476

The standard of review of a summary judgment by an appellate court is set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985) as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor.


Payne claims in his first point of error that summary judgment for Galveston County was improper because fact issues exist as to the liability of the county under the Texas Tort Claims Act. Payne asserts that under the duty imposed by § 101.022(b) of the Act, the county is liable for its failure to warn his family of the "special defect" presented by the seawall; that even if the seawall is not found to be a special defect, the county's failure to continue to install and maintain safety railings constituted a breach of its duty to a licensee under § 101.022(a) not to injure the licensee through gross negligence. Furthermore, Payne alleges the county was negligent in failing to restrict or regulate the use of surreys on the seawall or to designate lanes of travel thereon. Payne also contends that questions of fact are raised by virtue of the county's claim that it does not have sufficient control over the seawall to impose upon it any duty to users of the area.

In addition to its position that the city controls the premises, the county contends that the seawall is not a special defect as a matter of law, and that the open and obvious nature of the dangerous condition negates any duty on its part and therefore precludes a finding of negligence or gross negligence.

TEXAS CIVIL PRACTICE AND REMEDIES CODE, Chapter 101, the Texas Tort Claims Act ("the Act"), defines the liability of a governmental unit relevant to Payne's claims as follows:

Sec. 101.021. Governmental Liability

A governmental unit in the state is liable for:

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

Sec. 101.022 Duty Owed: Premise and Special Defects

(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a...

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