Schaefer v. City of San Antonio By and Through Water Works Bd. of Trustees, 04-92-00077-CV
| Decision Date | 17 August 1992 |
| Docket Number | No. 04-92-00077-CV,04-92-00077-CV |
| Citation | 838 S.W.2d 688 |
| Parties | Herbert A. SCHAEFER, Appellant, v. CITY OF SAN ANTONIO By and Through Its WATER WORKS BOARD of TRUSTEES, Appellee. |
| Court | Texas Court of Appeals |
Catherine M. Stone, Law Offices of Catherine M. Stone, Allen F. Cazier, Barbour & Cazier, San Antonio, for appellant.
Elizabeth Lindell, Davidson, Troilo & Booth, P.C., San Antonio, for appellee.
Before STEPHENS 1, ASHWORTH 2, and WHITHAM 3, JJ.
The issues arise under the Texas Tort Claims Act. TEX.CIV.PRAC. & REM.CODE ANN., § 101.021(1) (Vernon 1986). Appellant, Herbert A. Schaefer, brought this action against appellee, City of San Antonio by and through its Waterworks Board of Trustees, to recover property damage sustained when water from a broken water pipe maintained by the City Water Board flowed onto Schaefer's property. In a bench trial, the trial court entered a take-nothing judgment in favor of the City Water Board. We conclude that pursuant to the doctrine of sovereign immunity and the Act, the City Water Board enjoys government immunity and that immunity has not been waived. Accordingly, we affirm.
On Sunday, July 15, 1990, as Benny T. Whitaker was leaving his home at about 9:30 a.m., he observed a water leak from a broken water pipe directly across the street from his home. Whitaker testified that the water was shooting up four to five feet into the air. Whitaker immediately returned to his home and called the City Water Board's emergency number and notified the person who answered the telephone that there was "a bad water break" at the corner of Hays and Mesquite Streets. He further informed the person who answered the telephone that the water break was serious and that "water was going everywhere." Although Whitaker was assured that repair crews would be dispatched, Whitaker testified that the water continued to shoot up from the water break throughout Sunday and Monday. As described by Whitaker, on Monday the water was still coming up knee-high out of the ground. Whitaker testified that the water shot into the air and spewed into Schaefer's yard across the street at 432 Hays Street. Whitaker did not see anyone arrive to begin repairing the water break until early Tuesday morning, July 17, 1990.
August Trub, a claims adjuster with the City Water Board, testified that the City Water Board had no record of Whitaker's call and that the first recorded reference to a complaint about the water break was on July 17, 1990. Trub testified that the water break was repaired on July 17, 1990, and the break was located approximately eleven feet from Schaefer's property line. Trub was unable to testify as to when the water line in question was last inspected prior to July 15, 1990, and, in fact, could show no record to indicate that an inspection had ever been performed between 1979 and 1990 on this area of pipe. Trub admitted that the City Water Board does not maintain any regular procedures for inspection or maintaining pipes unless there is an indication of leakage or other problems. Trub further testified that crews go to and from a repair site to repair and/or maintain broken water lines in motor vehicles. Had a crew gone to repair the break in front of Schaefer's property at the time the leak was reported on July 15, 1990, the crew would have gone in motor vehicles and would have used motor-driven equipment to repair the water leak. Trub also testified that electrical motor-driven pumps propel water through the water mains, creating a constant water pressure throughout the system. If the pump had not been working at the time of the water break there would have been a leak at the location in question, but there would not have been water pressure to propel the water into the air and ultimately onto Schaefer's property.
Schaefer testified that the property located at 432 Hays Street was owned by him as rental property. Schaefer testified that when he learned of the leak and went to the property on July 17 or 18, there was an area dug up in the yard and in the street, barricades were in place, the yard was very wet, and there were areas where it was evident that a flow of water had washed across the yard and across the sidewalk. When Schaefer returned to the property several days later with a repairman, he could see a lot of water under the house. In Schaefer's opinion, the water found under the house could not have been rain water because there was too much of it. Schaefer testified that his tenant informed him that the water from the leak flowed in the direction of the house for a long period of time and that the water was even shooting up against the side of the house on the window. Shortly after the leak was repaired, mildew began growing in the house, cracks appeared in the sheetrock, and doors and windows would not open and close properly.
Anthony Espitia testified regarding the numerous repairs that he did to Schaefer's house following the water leak. Espitia testified that there was water standing under the house when he went with Schaefer to inspect the damage. During his past experiences doing various repairs at the house, Espitia had gone under the house and found the ground to be dry. After the water break in question, however, the ground underneath the house was saturated. Espitia testified that the water he saw standing under the house could not have come from rainfall and that the amount of water was significant enough to damage the foundation.
At the conclusion of trial, the trial court pronounced judgment in favor of the City Water Board and stated its findings that a water leak occurred causing damage to Schaefer's property and that the City Water Board was negligent. The trial court also found that the water leak did not arise from the use of a motor vehicle or motor-driven equipment. After entry of judgment, Schaefer filed his request for findings of fact and conclusions of law with proposed findings and conclusions. In response, the City Water Board also filed proposed findings and conclusions. The trial court signed both sets of findings and conclusions. Schaefer recognizes that the oral pronouncements at the conclusion of trial are not a substitution for findings and conclusions. See In re W.E.R., 669 S.W.2d 716 (Tex.1984). It is undisputed that a comparison of the court's oral pronouncements with the findings and conclusions submitted by the parties reveals no inconsistencies and that there are no inconsistencies between the two sets of findings and conclusions signed by the trial court. Therefore, pertinent to this appeal and as stated in Schaefer's brief, the trial court found that:
* A City Water Board waterline near [Schaefer's] property broke and a leak occurred.
* The City Water Board received notice of the leak on July 15, 1990, and responded to such notice on July 17, 1990.
* As a result of the water leak [Schaefer's] property was damaged in the amount of $32,000.00.
* The water in the waterlines is pressurized with the use of electric motor-driven pumps.
* The City Water Board responds to calls about broken or leaking waterlines with motor-driven equipment and motor-driven vehicles.
From these facts the trial court made the following relevant conclusions as stated in Schaefer's brief:
* The City Water Board is not liable for [Schaefer's] property damages because TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 limits governmental liability for property damage to situations in which such damage arises from the operation or use of a motor-driven vehicle or motor-driven equipment.
* [Schaefer's] property damage did not arise from the operation or use of a motor-driven vehicle or motor-driven equipment.
* [Schaefer's] property damage was proximately caused by the water leak and the City Water Board's failure to inspect and maintain the waterline and the Board's failure to timely respond to and repair the leak.
The City Water Board does not challenge the trial court's findings of fact or conclusions of law.
On appeal, it is undisputed that the City Water Board is a governmental unit governed by the Act. It is undisputed that Schaefer's claim is for property damage only. Consequently, section 101.021(1) applies. The Act provides as follows:
A government unit in the State is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986).
Under the doctrine of sovereign immunity, the City Water Board is not liable for the torts of its agents or officers unless there is a clear constitutional or statutory waiver of immunity. Indeed, pleadings and proof of an exception to governmental immunity are required if a party seeks recovery under the Texas Tort Claims Act. City of Houston v. Goings, 795 S.W.2d 829, 832 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Section 101.021 of the Texas Tort Claims Act requires that the alleged negligent acts arise from the operation or use of the motor vehicle or motor-driven equipment. Heyer v. North East Indep. Sch. Dist. 730 S.W.2d 130, 131-32 (Tex.App.--San Antonio 1987, writ ref'd n.r.e.); Hopkins v. Spring Indep. Sch. Dist., 706 S.W.2d 325, 327 (Tex.App.--Houston [14th Dist.] 1986), aff'd, 736 S.W.2d 617 (Tex.1987).
Specifically, Schaefer tells us that his appeal:
(1) presents us with an opportunity to further...
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