Rowland v. City of Corpus Christi

• Decision Date: 24 August 1981
• Docket Number: No. 1737,1737
• Parties: David W. ROWLAND, Appellant, v. CITY OF CORPUS CHRISTI, Texas, Appellee.
• Court: Texas Court of Appeals

Page 930

620 S.W.2d 930

David W. ROWLAND, Appellant, v. CITY OF CORPUS CHRISTI, Texas, Appellee.

No. 1737.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 24, 1981.

Rehearing Denied Sept. 17, 1981.

Russell H. McMains, Edwards & Perry, Corpus Christi, for appellant.

Richard A. Hall, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is a suit brought by appellant, David W. Rowland, against appellee, the City of Corpus Christi, for personal injuries sustained when Rowland dived from the seawall into the marina waters of the Corpus Christi Bay. In response to special issues, the jury found in favor of Rowland. The trial judge, however, granted the City's motion for judgment non obstante veredicto and entered a take-nothing judgment against Rowland. Rowland appeals.

Just before dusk on August 14, 1978, David Rowland dived from the seawall of the Corpus Christi Bay into the marina breakwaters and sustained a broken neck. Rowland brought suit for damages against the City, alleging that the City knew or should have known and that the City failed to give him proper warning of the condition which caused his injury. The City answered denying any liability, contending that the accident was proximately caused by the negligence of Rowland himself; that Rowland was a trespasser since he was swimming in an area where swimming was prohibited by ordinance; and/or that the City was immune from liability by virtue of the Texas Tort Claims Act.

The jury found in response to special issues, inter alia, that: 1) the condition of the area where Rowland dived into the water was a dangerous condition; 2) that the City had knowledge of such dangerous condition; 3) that the City in the exercise of ordinary care should have discovered such dangerous condition; and 4) that the sign "Caution Deep Water Lower Steps Slippery When Wet" failed to give adequate and proper warning of the dangerous condition. Following the verdict, the City filed a motion for judgment non obstante veredicto. The motion stated that there was no evidence which could give rise to a duty on the part of the City, the breach of which would form the basis of liability to Rowland. The City argued in its motion that, as a matter of law, Rowland was a trespasser by reason of his entrance into the water at a place where swimming was prohibited by ordinance, or in the alternative, he was a mere licensee. Therefore, as a trespasser, the City's only duty to Rowland was to avoid injuring him intentionally or through gross negligence. The City argues, in the alternative, that if Rowland was a licensee, then its only duty was to make safe or warn him of the dangerous condition of which the City had knowledge.

The trial court granted the City's motion for judgment non obstante veredicto without specifying the ground upon which it relied and entered judgment against Rowland. Rowland appeals. In his appeal, he brings forth eight points of error. The first seven points will be grouped together for discussion since they all center on the contention that the trial court erred in granting the City's motion for judgment non obstante veredicto.

The granting of a motion for judgment non obstante veredicto is justified only when an instructed verdict is proper. Rule 301, T.R.C.P. It is proper only under very limited circumstances, i. e., 1) that a defect (specifically indicated) in the opponent's pleading makes it insufficient to support a judgment; 2) the truth of fact propositions which, under the substantive law, establish the right of the movant, or negative the right of his opponent to judgment; or 3) that the evidence is insufficient to raise an issue as to one or more fact propositions which must be established for the opponent to be entitled to judgment. Elliott v. Elliott, 597 S.W.2d 795 (Tex.Civ.App. Corpus Christi 1980, no writ); Hendrix v. Jones-Lake Const. Co., 570 S.W.2d 546 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n. r. e.); Newitt v. Camden Drilling Co., 552 S.W.2d 928, 931 (Tex.Civ.App. Corpus Christi 1977, no writ); McDonald, Texas Civil Practice, § 11.28.1 (1970).

The court, in acting on such motion, must consider all of the evidence in the light most favorable to support the jury's findings, and every reasonable intendment deducible from the evidence must be indulged in favor of the verdict. Only the evidence and inferences therefrom that support the jury findings should be considered, with all contrary evidence and inferences being rejected. Elliott v. Elliott, supra; Dodd v. Texas Farm Products Co., 576 S.W.2d 812 (Tex.1979). Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974).

In order to review the evidence in accordance with the above standards, we must first determine the status of Rowland at the time of the accident. Was he an invitee, licensee or trespasser? If Rowland was an invitee, the City had a duty to keep the premises in a reasonably safe condition and to inspect the premises to discover any latent defects and to make safe any defect or give adequate warning. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941); Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972). If, on the other hand, Rowland was a licensee, then the City owed Rowland a duty to not injure him willfully, wantonly or through gross negligence, and to warn or make safe dangerous conditions of which it had actual knowledge. Burton Construction & Ship Building Company v. Broussard, 154 Tex. 50, 273 S.W.2d 598 (1954); State v. Tennison, 509 S.W.2d 560 (Tex.1974); Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976); Billstrom v. Memorial Medical Center, 598 S.W.2d 642 (Tex.Civ.App. Corpus Christi 1980, no writ). However, if Rowland was a trespasser, the City only owed him a duty not to injure him willfully, wantonly or through gross negligence. Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302 (1936); Hopkins v. Texas Power & Light Company, 514 S.W.2d 143 (Tex.Civ.App. Dallas 1974, no writ).

In determining whether a person is an invitee, the general test is whether the injured person at the time of the injury has present business relations with the owner of the premises which would render his presence of mutual aid to both. In determining whether a person is a licensee, the general test is whether his presence on the premises was for his own convenience, or on business with someone other than the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied and the injured person must be regarded as a mere licensee. Texas Power & Light Company v. Holder, 385 S.W.2d 873 (Tex.Civ.App. Tyler 1964, writ ref'd n. r. e.); Mendez v. Knights of Columbus Hall, 431 S.W.2d 29 (Tex.Civ.App. San Antonio 1968, no writ). A licensee is a person whose entrance upon or use of the premises of another is permitted by the owner under such circumstances that he is not a trespasser but is without any express or implied invitation. He is on the premises by sufferance and not by virtue of any business or contractual relations with, or any enticement, allurement, or inducement to enter being held out to him by the owner or occupant, but merely in his own interest or for his own purposes, benefits, convenience or pleasure. Texas Power & Light v. Holder, supra; Mendez v. Knights of Columbus Hall, supra.

A person is a trespasser where he enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner or...