Pitts v. Winkler Cnty.

• Decision Date: 21 September 2011
• Docket Number: No. 08–09–00297–CV.,08–09–00297–CV.
• Citation: 351 S.W.3d 564
• Parties: James PITTS, Appellant, v. WINKLER COUNTY, Texas, Appellee.
• Court: Texas Court of Appeals

351 S.W.3d 564

James PITTS, Appellant,

v.WINKLER COUNTY, Texas, Appellee.

No. 08–09–00297–CV.

Court of Appeals of Texas, El Paso.

Sept. 21, 2011.

Bill Weinacht, Pecos, for Appellant.

Mark McBrayer, Crenshaw, Dupree & Milam, L.L.P., Lubbock, for Appellee.

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

This appeal arises from a car accident involving James Pitts and Charley Willhelm in Winkler County, Texas. The accident occurred at the intersection of State Highway 115 and County Road 201. Pitts was driving south on the state highway as Willhelm was driving east on the county road. Willhelm's car failed to stop at a stop sign and crashed into Pitts's car. Pitts sued Winkler County under the Texas Tort Claims Act (TTCA), alleging that Willhelm failed to stop because the county road had a large oil spill that the County covered with dirt, making the oil undetectable. Pitts asserts that the dirt and oil mixture constituted a premise defect for which the County has no governmental immunity. The County moved for summary judgment, arguing that its governmental immunity has not been waived for several reasons. The trial court granted the motion without specifying the grounds it found meritorious.

John Henderson was the County's foreman in charge of maintaining the roads in the precinct where the accident occurred. He testified by deposition that there is a lot of oil and gas activity in the area and it is not unusual for a truck carrying petroleum to “slosh out a little oil every now and then.” Two days before the accident, his boss, RobbieWolf, instructed him to cover an oil spill on County Road 201. Henderson indicated that the spill was about twenty-feet long and that it covered almost the entire lane. Using a front-end loader, he “slammed” on the brakes to test the slickness of the area. He “slid a little,” so he loaded some dirt from the bar ditch and put it over the oil. He did another test after applying the dirt, and the front-end loader “stopped immediately without skidding.” He estimated that the front-end loader weighs between 20,000 and 25,000 pounds, whereas a passenger car weighs between 4,000 and 5,200 pounds. The test area began at the back of the oil spill and continued for about ten-to-fifteen feet. The record does not reflect how much speed Henderson was able to attain in that length of space. Henderson went back and checked the area to make sure there was no “bleed through” later that day and again the next day. He found that the dirt concealed the oil, so that a motorist would not know that there was oil on the road.

Wolf testified by affidavit and by deposition. In his affidavit, he stated that he is the county commissioner for the precinct where the accident occurred. Upon being notified of an oil spill on County Road 201, he sent employees to cover the spill with dirt because “[i]t is the policy and practice of the County to cover oil spills on the County's roads with dirt.” Before the accident, Wolf drove by the area of the spill and observed that it had been covered with dirt. He did not receive any complaints about the road after the spill was covered. In his deposition, Wolf testified, “If I see dirt on the road around here, I don't think nothing about it.” He would not know whether there was oil beneath the dirt.

Pitts testified by deposition that the accident occurred at about 2:30 in the afternoon on a “pretty nice day.” Traffic was light, and he did not see any other traffic near the intersection. He was going about sixty-five miles per hour in a seventy-mile zone. As he approached the intersection, he saw “the car coming that way. And it looked like he was stopping, then ... I turned my vision back towards the highway there. Then all of a sudden, I felt it hit me.” He testified that Willhelm's car appeared to be slowing down as it approached the intersection. Pitts did not see any oil on the road.

In his deposition, Willhelm testified that he was going sixty miles per hour before he approached the stop sign. Describing how the accident happened, he stated: “I pulled up to the stop sign and there was some dirt on the road, and I pulled up to it and it was like my brakes just went out and I slid into the road.” He “pressed on the brakes and everything was fine and then [he] hit the dirt and ... started sliding.” Although he saw the dirt on the road, he did not know why it was there. As far as he knew, it “could have been ... just blown by the breeze.” According to Willhelm, Pitts was not speeding and did not “do anything wrong.”

Willhelm's father went to look at the scene of the accident the day after it occurred. He saw “dirt ... mixed with an oily kind of stuff.” The dirty area was about sixty-five feet long.

The TTCA provides a limited waiver of governmental immunity for injuries caused by premise defects. See Tex.Civ.Prac. & Rem.Code Ann. § 101.022(a) (West 2011). Governmental immunity from suit deprives a court of subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224–25 (Tex.2004). The absence of subject-matter jurisdiction may be raised in a plea to the jurisdiction or in a motion for summary judgment. State v. Lueck, 290 S.W.3d 876, 884 (Tex.2009).

Here, the County raised the jurisdictional issue in a summary judgment motion. The motion cites the standards for both a traditional and a no-evidence summary judgment, but does not clearly separate the arguments for the two types of summary judgments. The Texas Supreme Court has noted that a “better practice” is to file separate motions, or at least to include headings that clearly delineate and segregate the two bases for summary judgment. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004). The court, however, does not require litigants to follow this practice. Id. On appeal, the County only attempts to uphold the summary judgment on the traditional basis. Its brief cites Rule 166a(c) and provides the standard of review for a plea to the jurisdiction that challenges the existence of jurisdictional facts. See Tex.R.App.P. 166a(c) (setting out the traditional summary judgment procedure); Miranda, 133 S.W.3d at 227–28 (holding that when a plea to the jurisdiction challenges the existence of jurisdictional facts, courts should follow the traditional summary judgment procedure). Nevertheless, because the summary judgment motion raised both traditional and no-evidence bases for summary judgment, we will affirm if the summary judgment can be sustained on either basis. Viasana v. Ward County, 296 S.W.3d 652, 653–54 (Tex.App.-El Paso 2009, no pet.).

When reviewing a summary judgment, we always view the evidence in the light most favorable to the non-movant. We consider all evidence favorable to the non-movant to be true, indulging every reasonable inference and resolving any doubts in the non-movant's favor. Arellano v. Americanos USA, LLC, 334 S.W.3d 326, 330 (Tex.App.-El Paso 2010, no pet.). For a no-evidence summary judgment, the movant must only specify which elements of the plaintiff's claim lack evidentiary support. Id. The burden then shifts to the non-movant to produce evidence raising a genuine issue of material fact regarding each challenged element. Id. To meet this burden, the non-movant must produce more than a scintilla of evidence regarding the challenged elements. Id. For a traditional summary judgment, the movant has the burden of showing that there is no genuine issue of material fact by conclusively disproving at least one element of the non-movant's causes of action or by conclusively proving all of the elements of an affirmative defense. Id.

The County raised several grounds in its summary judgment motion, and Pitts attacks all of those grounds on appeal.¹ We will review the grounds de novo and will affirm if any ground is meritorious. Viasana, 296 S.W.3d at 653–54; New Wave Techs., Inc. v. Legacy Bank of Texas, 281 S.W.3d 99, 100 (Tex.App.-El Paso 2008, pet. denied). Ordinarily, we consider no-evidence grounds first, because if a plaintiff cannot produce more than a scintilla of evidence, then there is no need to analyze whether the defendant satisfied the more onerous traditional summary judgment burden. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). It is difficult to follow that approach here because the County argued the two bases together and some of its grounds raise issues of law. To the extent possible, and where applicable, we will consider whether Pitts satisfied his no-evidence burden before moving on to the County's traditional burden.

A governmental unit's liability for premise defects is limited to the duty that a landowner owes to a licensee on private property. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.2008). Thus, to establish the County's liability for his injuries, Pitts must prove five elements: (1) that a condition of the road created an unreasonable risk of harm; (2) that the County had actual knowledge of the condition; (3) that he did not have actual knowledge of the condition; (4) that the County failed to exercise ordinary care to protect him from danger; and (5) that this failure proximately caused his injury. See State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992); see also County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002) (“A property possessor ... must use ordinary care either to warn a licensee of a condition that presents an unreasonable risk of harm of which the possessor is actually aware and the licensee is not, or to make the condition reasonably safe.”).

In its summary judgment motion and on appeal, the County argues that Pitts must establish two other elements in addition to the ones listed above. First, it argues that Pitts must prove that it owned, occupied, or controlled the premises where the accident happened. The County insists that it cannot be liable to Pitts because he was traveling on a state...