State Dept. of Highways and Public Transp. v. Payne
| Decision Date | 07 September 1989 |
| Docket Number | No. 01-88-00875-CV,01-88-00875-CV |
| Citation | 781 S.W.2d 318 |
| Parties | STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. Kenneth Herschel PAYNE and Rhonda Payne, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Jim Mattox, Atty. Gen., Mary F. Keller, First Asst. Atty. Gen., Lou McCreary, Executive Asst. Atty. Gen., Richard D. Naylor, Asst. Atty. Gen. Chief, Highway Div., Randy Hill, Asst. Atty. Gen., Highway Div., Austin, for appellant.
John L. Pierce, II, Navasota, Samuel J. Lee, II, Angleton, for appellees.
Before WARREN, COHEN and O'CONNOR, JJ.
In November 1984, Mr. Payne suffered knee injuries after he fell into a culvert built and maintained by the State Department of Highways and Public Transportation ("the State"). The culvert was concealed by vegetation, and reflectors marking its location had been removed or obscured. Payne alleged the State failed to correct the dangerous condition or warn of its location. He sued pursuant to the Texas Torts Claims Act, formerly Tex.Rev.Civ.Stat. Art. 6252-19, sec. 18(b); hereinafter Tex.Civ.Prac. & Rem.Code Ann. sec. 101.022 (Vernon 1986), 1 and won a judgment of $148,800.
In the first point of error, the State contends the trial court should have submitted the following special issue: "Do you find ... that there existed at the culvert ... a dangerous condition that created an unreasonable risk of harm to a person exercising ordinary care?"
The broad form jury charge consisted of only two questions about liability. The first asked: "Did the negligence, if any, of the below named parties proximately cause the occurrence in question?" The jury answered "yes" as to both plaintiff and defendant. In question two, the jury found the State's negligence was 60% responsible and Payne's negligence was 40% responsible for the accident. The charge also included the following definitions and instructions:
"GOVERNMENTAL LIABILITY": A governmental unit in the state is liable for 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.
"DUTY OWED: SPECIAL DEFECT": Where there is a special defect such as an excavation or obstruction on or adjacent to a highway, road, or street or where there is the absence or malfunction of a traffic sign, signal or warning device that is required by law, the governmental unit owes to the plaintiff a duty to warn of such special defect.
The duty owed is a duty to use ordinary care to either warn of a dangerous condition or to make such dangerous condition reasonably safe, provided the governmental unit had knowledge of the dangerous condition, or through the exercise of ordinary care, should have had knowledge of the dangerous condition.
"DANGEROUS CONDITION " means a condition other than normally connected with the use of the roadway, excavation or obstruction, and a person using ordinary care could not encounter such condition with safety.
"NEGLIGENCE" means failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
(Emphasis supplied.)
The State relies solely on Physicians & Surgeons General Hospital v. Koblizek, 752 S.W.2d 657, 659 (Tex.App.--Corpus Christi 1988, writ pending), a slip and fall case involving flooring materials in a hospital. The court held the trial judge should have allowed the defendant's special issues on 1) whether the flooring presented an unreasonable risk of harm, and 2) whether the hospital "knew or by the exercise of ordinary care should have discovered ... [the] unreasonable risk of harm." Id. The special issues submitted in Koblizek inquired whether "it was negligent for appellant to allow there to be different surface levels between the waxed asphalt tile and terrazzo tile surfaces separating the bathroom hallway and lobby area and whether such negligence was the proximate cause of the occurrence." Id. The court did not discuss any instructions or definitions submitted to the jury with these special issues.
The special issues submitted here resemble those in Koblizek; however, the trial judge gave extensive definitions along with the broad form issues to guide the jury's discretion. The instructions told the jury that the State had the duty to warn of a dangerous condition, defined as a condition that a "person using ordinary care could not encounter ... with safety." We perceive no important difference between a condition that a "person using ordinary care could not encounter ... with safety" and one posing an "unreasonable risk of harm to a person exercising ordinary care," the language requested by appellant. The definitions gave the State adequate protection by requiring the jury to find that a dangerous condition existed in order to find negligence.
Rule 277 of the Texas Rules of Civil Procedure requires trial courts to submit broad form questions whenever feasible, accompanied by appropriate instructions and definitions. "The trial court is not required to submit each fact question separately and distinctly." Alvarez v. Missouri-Kansas-Texas R.R. Co., 683 S.W.2d 375, 377 (Tex.1984). In a negligence case, a broad form question is proper if it simply inquires whose negligence, if any, proximately caused the event. Lemos v. Montez, 680 S.W.2d 798, 800 (Tex.1984). We find no error.
Point of error one is overruled.
In its second point of error, appellant contends the trial court erred in refusing to submit the following question: "Do you find ... that [Mr. Payne] had actual knowledge that the culvert was at the location in question ...?"
Whether this was error depends on whether this particular dangerous condition was a "premise defect" or a "special defect." Section 101.022 of the Texas Tort Claims Act provides:
(a) If a claim arises from a premise defect, the governmental unit...
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State Dept. of Highways & Public Transp. v. Payne
...own negligence, and the trial court rendered judgment in Payne's favor for $148,800 plus interest. The court of appeals affirmed. 781 S.W.2d 318 (Tex.App.1989). The two principal issues now before us are first, whether the trial court held the State to a higher standard of care than that im......