Sbrusch v. Fort Bend County Drainage Dist., B14-89-00206-CV

• Decision Date: 19 April 1990
• Docket Number: No. B14-89-00206-CV,B14-89-00206-CV
• Citation: 788 S.W.2d 896
• Parties: Bennie SBRUSCH, Appellant, v. FORT BEND COUNTY DRAINAGE DISTRICT and Fort Bend County, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 896

788 S.W.2d 896

Bennie SBRUSCH, Appellant, v. FORT BEND COUNTY DRAINAGE DISTRICT and Fort Bend County, Appellees.

No. B14-89-00206-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 19, 1990.

Rehearing Denied May 31, 1990.

Robert P. Gaddis, Houston, for appellant.

Margaret A. Wilson, Houston, for appellees.

Before MURPHY, ROBERTSON and DRAUGHN, JJ.

OPINION

ROBERTSON, Justice.

This appeal is from a judgment notwithstanding the verdict entered in an action for personal injury and property damages arising out of a bridge collapse. While the judgment itself does not specify upon what basis it was granted, the motion therefor asserted four grounds: (1) the defendants owed no duty; (2) the defendants were protected by sovereign immunity; (3) the defendants could not constitutionally maintain the bridge in question; and (4) policy considerations dictated a finding of non-liability. Appellant asserts four points of error attacking each of the four possible bases for the judgment N.O.V. Because we find the trial court erred in granting the judgment N.O.V., we reverse and render judgment on the verdict.

The basic facts of this case are undisputed. In 1955, the landowner of the property in question granted the Fort Bend County Drainage District (District) an 80 foot wide easement across her land for the purpose of constructing a drainage channel. The right of way easement deed provided that the District would "at its expense, construct and provide one bridge crossing of said creek channel adequate and suitable for normal agricultural uses." Additionally, the District bound itself to provide one water gate where the channel entered the land and one water gate where it exited the land. While the easement was silent as to the obligation of the District to repair the bridge or the watergates, the District expressly bound itself to repair "all damage to roads, passageways and fences resulting from the DISTRICT'S use in going to and from said easement...."

The bridge in question, and apparently the water gates, were constructed in 1955 or 1956. The bridge was one of some 200 similar bridges over drainage channels in the county. While the District did not automatically inspect, repair, and maintain the bridges, the evidence, including testimony from the District's officers and employees, shows that the District did repair these drainage channel bridges when requested to do so by the landowner. The repair work was apparently never a priority item and was done by the District when it had the time and money. An employee of the District testified that the District budgeted $200,000 per year for repairs of these bridges.

Elton Tieman, who farmed a portion of the land to which the bridge was affixed and who used the bridge in question to transport his farm equipment across the channel, testified that he quit using the bridge because he believed it was too weak to support the weight of his farm equipment. He stated that he notified the District in March, 1981, that the bridge was unsafe; that he actually took the District's bridge foreman under the bridge and showed him how rotten the bridge timbers were by sticking his knife into the support posts and by hitting the posts with a hammer; and that the foreman told him "We will take care of it." Nothing had been done, however, by December, 1981, when the accident giving rise to the instant lawsuit occurred.

Appellant, Sbrusch, owned and operated a tandem dump truck which had an empty weight of some 19,000 pounds. On the day of the accident, he was hauling some "bottom ash" from a nearby power plant to put on a driveway. To get to the driveway, appellant crossed the bridge in question. As he was doing so, the bridge gave way, causing his truck to fall some 14 feet to the bottom of the channel. As a result, Sbrusch suffered personal injuries and his truck was "totalled" by the insurance company. There were no warning signs posted at or near the bridge. Immediately after the accident, the appellees removed the old bridge and constructed a new one.

At trial, the jury found the county and the District to have been 60% negligent, and appellant 40% negligent, in causing the accident. It assessed appellant's damages for personal injuries at $75,000 and damage to his dump truck at $27,000.

In his first point of error, appellant contends the trial court erred in granting judgment notwithstanding the verdict because appellees "did breach a legal duty owed to appellant, as recognized by Texas law." We agree.

Appellant based his suit upon the Texas Tort Claims Act which provided that each local unit of government shall be liable for money damages "under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state." TEX.REV.CIV.STAT.ANN. art. 6252-19 § 3 (Vernon 1970) (repealed and now codified as TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1986)). In Colonial Sav. Ass'n v. Taylor, 544 S.W.2d...