Shives v. State

• Decision Date: 16 December 1987
• Docket Number: No. 08-87-00102-CV,08-87-00102-CV
• Citation: 743 S.W.2d 714
• Parties: Charles SHIVES, et al., Appellants, v. The STATE of Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 714

743 S.W.2d 714

Charles SHIVES, et al., Appellants, v. The STATE of Texas, et al., Appellees.

No. 08-87-00102-CV.

Court of Appeals of Texas,

El Paso.

Dec. 16, 1987.

Rehearing Denied Jan. 13, 1988.

James F. Scherr, Law Offices of James Franklin Scherr, El Paso, for appellants.

Jim Mattox, Atty. Gen., Richard D. Naylor, Asst. Atty. Gen., Austin, for appellees.

Before SCHULTE, FULLER and WOODARD, JJ.

OPINION

SCHULTE, Justice.

Appeal is from a summary judgment. The suit is one for personal injuries and wrongful death arising out of an automobile collision at the intersection of Westside Drive (Westside) and Country Club Road (Country Club) in El Paso County, Texas. We affirm.

The intersection in question was designed and constructed in September, 1956. On June 12, 1984, Brenda Theriot Shives drove her car on Westside toward its intersection with Country Club. Upon reaching the intersection, Mrs. Shives stopped at the stop sign located on a concrete island at the intersection. After stopping briefly, she accelerated into the intersection, intending to make a left turn onto Country Club. In the intersection, her car was struck by a westbound van driven by Stanley C. Lopez. As a result of injuries suffered in the collision, Mrs. Shives died. Suit was brought by her estate, husband and parents, as well as by the parents of Thomas J. Theriot, a minor passenger in the Shives vehicle. The action was brought against the State of Texas and the State Department of Highways and Public Transportation, as well as against the driver and owner of the van which struck the Shives vehicle. The suit as to Stanley Lopez, the driver of the van, and as to Diane Lopez, the owner of the van, was settled and severed. We will hereafter refer to the State of Texas and to the State Department of Highways and Public Transportation as the State.

Appellants' points of error assert the trial court erred in "holding" the Texas Tort Claims Act inapplicable and in "holding" as a matter of law that the State was not guilty of any negligence or nuisance proximately causing the accident. We are unable to find any "holdings" of that nature in the judgment or elsewhere in the record. However, we will consider those assertions in connection with Appellants' third point that the trial court erred in granting the summary judgment because there was "no legal reason to grant it."

Questions of negligence and proximate cause are usually issues of fact which cannot be determined on motion for summary judgment. McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App.--Tyler 1974, writ ref'd n.r.e.). However, a motion for summary judgment may be based on a showing that the cause of action is barred as a matter of law by the affirmative defense of governmental immunity. Jackson v. City of Corpus Christi, 484 S.W.2d 806 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.). Furthermore, where it appears that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, the judgment shall be rendered forthwith. Rule 166-A, Tex.R.Civ.P.

Appellants' reliance on theories of common-law negligence and nuisance in regard to the State is ill-placed. The cases cited by Appellants relating to common-law negligence concern municipalities and proprietary function and have no application. Nuisance is equally inapplicable. See our Callaway v. City of Odessa, 602 S.W.2d 330 (Tex.Civ.App.--El Paso 1980, no writ). To recover, facing the doctrine of governmental immunity, the Appellants must do so under the Texas Tort Claims Act, and we believe, in that respect, they likewise are precluded. Our references to the Texas Tort Claims Act (hereafter referred to as the Act) will be to the provisions of Tex.Rev.Civ.Stat.Ann. art. 6252-19 in effect at the time of the collision in question. The Act is now contained in the Civil Practice and Remedies Code sec. 101.001, et seq.

Appellants' principal thrust is directed at the "skewed design of the intersection." That design and construction took place in 1956, some fourteen years prior to the effective date of the Act. Under the Act, the State can only be held liable for acts and omissions occurring after January 1, 1970. See: Sections 14 and 22 of the Act. Furthermore, it would appear that the design used in constructing a roadway falls within the realm of exercise of discretion set forth in Section 14(7) of the Act, as more fully discussed hereafter in regard to other complained of acts and omissions.

The other complained of acts and omissions include the assertions that the State was negligent in not reducing the speed limit on Country Club Road; in failing to place a traffic light at the intersection; in the maintenance of the intersection; and, in the manner of installing a stop sign and stop bar at the intersection.

In the Act at Section 14(7), entitled "Exemptions," it is provided in part that the provision of the Act shall not apply to the failure to perform any act which is not required by law and the performance or nonperformance of which is left to the unit of government. Under those circumstances, the decision not to do the act, or a failure to make a decision thereon, is not actionable under the Act. This discretionary provision, we believe, obviates Appellants' complaints regarding the speed limit and the absence of a traffic light. Furthermore, specifically in regard to the traffic light, Section 14(12) of the Act provides under exemptions, in part, that "[n]othing herein shall give rise to liability" from the failure...