State Dept. of Highways & Public Transp. v. Payne

Citation838 S.W.2d 235
Decision Date23 September 1992
Docket NumberNo. C-9343,C-9343
PartiesSTATE DEPARTMENT OF HIGHWAYS & PUBLIC TRANSPORTATION, Petitioner, v. Kenneth Herschel PAYNE et ux., Respondents.
CourtSupreme Court of Texas

Dan Morales, Randy Hill, Austin, for petitioner.

John L. Pierce, II, Navasota, Samuel J. Lee, II, Angleton, for respondents.

OPINION ON MOTION FOR REHEARING

HECHT, Justice.

On motion for rehearing, our opinion of September 11, 1991, is withdrawn, and the following is now the opinion of the Court.

Kenneth Payne and his wife sued the State Department of Highways and Public Transportation to recover damages for injuries which he sustained when he walked off the end of a culvert built and maintained by the State. A jury found that Payne's injuries were caused 60% by the negligence of the State and 40% by his 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 imposed by section 101.022 of the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE § 101.022, and thus failed to submit the controlling question of fact to the jury, and second, whether the State has preserved this complaint for appeal. We answer both issues in the affirmative, and consequently reverse the judgment of the court of appeals and render judgment that Payne take nothing.

I

Payne's injury occurred before sunrise one morning as he walked from his home in the country across a two-lane paved road toward a deer blind he had constructed in a field. A culvert ran perpendicular to and beneath the road, ending about 22 feet from the roadbed on the deer blind side. In the dark, Payne stepped off the culvert and fell about 12 feet into a drainage ditch, sustaining injuries. Although Payne knew there was a culvert near where he was walking, he claimed that he did not see where it ended that morning because vegetation obscured it and a reflective marker was missing.

Payne alleged in his pleadings that the culvert was both a special defect and a premise defect; the State denied that the culvert was a defect of any kind. If the culvert was a premise defect, the State owed Payne the same duty a private landowner owes a licensee. TEX.CIV.PRAC. & REM.CODE § 101.022(a); 1 State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. Id.; see RESTATEMENT (SECOND) OF TORTS § 342 (1965). If the culvert was a special defect, the State owed Payne the same duty to warn that a private landowner owes an invitee. TEX.CIV.PRAC. & REM.CODE § 101.022(b); 2 Harris County v. Eaton, 573 S.W.2d 177, 180 (Tex.1978). That duty requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware.

The elements of proof required to establish a breach of these two duties, absent willful, wanton or grossly negligent conduct which Payne did not plead or attempt to prove, may be compared as follows.

To establish liability--

a licensee must prove that: an invitee must prove that:

(1) a condition of the premises (1) a condition of the premises created

created an unreasonable risk of an unreasonable risk of harm to the

harm to the licensee; invitee;

(2) the owner actually knew of the (2) the owner knew or reasonably should

condition; have known of the condition;

(3) the licensee did not actually

know of the condition;

(4) the owner failed to exercise (3) the owner failed to exercise ordinary

ordinary care to protect the care to protect the invitee from

licensee from danger; danger;

(5) the owner's failure was a (4) the owner's failure was a proximate

proximate cause of injury to the cause of injury to the invitee.

454"455 (Tex.1972); see RESTATEMENT

(SECOND) OF TORTS § 343 (1965).

There are two differences between these theories. The first is that a licensee must prove that the premises owner actually knew of the dangerous condition, while an invitee need only prove that the owner knew or reasonably should have known. The second difference is that a licensee must prove that he did not know of the dangerous condition, while an invitee need not do so.

In this case, the State built the culvert and thus knew of its existence. That element under either theory of liability is not in dispute. Nor do the parties dispute that Payne knew of the existence of the culvert. The point of contention is whether Payne knew the culvert was in his path as he walked through the undergrowth in the dark. After all, Payne argues, he would hardly have stepped off the edge and fallen twelve feet to serious injury had he known, or had he been adequately warned, that the culvert was in front of him. But, the State responds, he nevertheless knew that the culvert was there somewhere, and his knowledge precludes imposition of liability on the State unless the culvert was a special defect. Both parties introduced evidence regarding Payne's knowledge of the location of the culvert.

At the close of the evidence the trial court gave the jury a charge which asked two liability questions. The first question inquired whether Payne's or the State's negligence was a proximate cause of the occurrence. The second question asked what percentage of such negligence was attributable to each. In addition to the standard definitions of negligence, proximate cause and ordinary care, the trial court gave the jury the following 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 reasonable 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.

The State's complaint is that the jury charge erroneously assumed that the culvert was a special defect and did not submit Payne's premise defect liability theory to the jury. Specifically, the State complains that the charge does not request the jury to find whether Payne knew of the location of the culvert at the time of his accident.

In effect, the trial court determined that the culvert was a special defect as a matter of law. The court of appeals agreed. 781 S.W.2d at 322. To the extent they treated the issue as a question of law rather than of fact, both courts were correct. Whether a condition is a premise defect or a special defect is a question of duty involving statutory interpretation and thus an issue of law for the court to decide. Eaton, 573 S.W.2d at 179-80; see also Blankenship v. County of Galveston, 775 S.W.2d 439, 441-42 (Tex.App.--Houston [1st Dist.] 1989, no writ). However, both courts incorrectly determined the status of the culvert.

Special defects are excavations or obstructions on highways, roads, or streets. TEX.CIV.PRAC. & REM.CODE § 101.022(b); see Eaton, 573 S.W.2d at 179. These examples set forth in the statute itself all present an unexpected and unusual danger to ordinary users of roadways. 3 The culvert in this case was not a special defect. The end of the culvert was located far enough from the paved surface that vehicular passengers and other normal users of the roadway were unlikely to encounter it. Payne, unlike an ordinary user of the road, was walking perpendicular to the paved surface into the adjacent field. Only such a pedestrian, whose destination required him to leave the proximity of the road, was ever likely to fall off the end of the culvert. If there was a defect, it was in the field where Payne was walking. The State's duty of care with respect to such a defect is covered by the ordinary rule for premise defects under section 101.022(a).

II

Payne nevertheless argues that the State has not preserved its complaint that the trial court erred in refusing to inquire of the jury concerning his knowledge of the culvert. The State's sole objection to the charge was that the "Duty Owed" paragraph quoted above "constitutes a comment upon the weight of the evidence and amounts to an instruction to the jury that there is, in fact, a special defect, removes that issue from the province of the jury and keeps from it being a fact issue as it should be." Payne argues that this objection was not sufficiently clear to call to the trial court's attention the State's complaint that the culvert should not have been assumed to be a special defect. This argument is rather dubious in the circumstances of this case. The trial court's failure to submit Payne's...

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