State ex rel. Dept. of Highways v. Gonzalez

• Decision Date: 27 June 2002
• Docket Number: No. 00-1007.,00-1007.
• Citation: 82 S.W.3d 322
• Parties: The STATE of Texas, by and through the STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Petitioner, v. Maria C. GONZALEZ, individually and as representative of Hilda Martinez, Deceased, et al., Respondent.
• Court: Texas Supreme Court

82 S.W.3d 322

The STATE of Texas, by and through the STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Petitioner, v. Maria C. GONZALEZ, individually and as representative of Hilda Martinez, Deceased, et al., Respondent.

No. 00-1007.

Supreme Court of Texas.

Argued November 14, 2001.

Decided June 27, 2002.

Rehearing Denied August 29, 2002.

COPYRIGHT MATERIAL OMITTED

John Cornyn, Attorney General, Andy Taylor, First Assistant Attorney General, Jeffrey S. Boyd, Susan Desmarais Bonnen, Grady Click, William E. Williams, III, S. Kyle Duncan, Office of the Attorney General, Austin, for Petitioner.

Richard J. Karam, Law Office of Richard J, Karam, W. Wendell Hall, Renee Forinash-McElhaney, Rosemarie Kanusky, Fulbright & Jaworski, Marcos Fulop, David McQuade Leibowitz, Law Offices of David McQuade Leibowitz, San Antonio, for Respondent.

Justice BAKER delivered the opinion of the Court.

This wrongful-death case involves a fatal highway collision that occurred at an intersection where vandals had repeatedly removed stop signs. The issue is whether the Texas Tort Claims Act ("the Act") waives the State's immunity for claims arising from the accident, which allegedly happened because unknown third parties removed the intersection's stop signs. A jury determined that the Texas Department of Transportation's negligence proximately caused the accident, and the trial court rendered judgment on the verdict. The court of appeals affirmed, holding that a stop sign's susceptibility to "repeated and extraordinarily frequent vandalism can be a condition for purposes of section 101.060(a)(2) liability." 24 S.W.3d 533, 537. We disagree.

We conclude that section 101.060(a)(2) does not apply in this case and thus does not waive the State's immunity. We further conclude that section 101.060(a)(3) of the Act is the section that does apply. However, because there is no evidence that TxDOT had actual notice that someone removed the stop signs before the accident occurred, TxDOT's immunity from suit is not waived in this case. Accordingly, we reverse the court of appeals' judgment and render judgment that the plaintiffs take nothing.

I. BACKGROUND

On Sunday, February 8, 1987, Maria Alicia Gonzalez was driving eastbound on FM 3072 in Hidalgo County. At the intersection with FM 2557, Maria's car collided with a northbound van driven by Stanley Brock. Maria and three passengers died at the scene. A fourth passenger, as well as Brock and his passenger, suffered minor injuries.

Usually, the intersection has two stop signs facing FM 3072, which require traffic on that road to yield the right-of-way to traffic on FM 2557. However, when the accident occurred, the stop signs were missing, because vandals had allegedly knocked them down or removed them. Maria, who was unfamiliar with the intersection, did not stop, yield the right-ofway, or slow down.

At least six times during the seventeenday period before the accident, vandals had knocked down or removed the intersection's stop signs. Each time TxDOT received notice about the vandalized signs, it promptly reinstalled or replaced them. In response to the repeated vandalism, TxDOT ordered regular inspections at least twice a day on weekdays. TxDOT also asked the Hidalgo County Sheriff's Department to help monitor the intersection at night. However, TxDOT did not change the methods it used to reinstall or replace the signs, and it did not order its employees to perform overtime inspections during weekend hours.

TxDOT reinstalled at least one stop sign at the intersection on Friday, February 6. An off-duty TxDOT employee, who drove through the intersection on Saturday afternoon, testified that he observed both stop signs in place. However, at around nine-thirty on Sunday morning, a motorist who testified at trial noticed that no stop signs stood at the FM 2557 intersection. But, because the motorist had never driven through the intersection before, she did not realize that the intersection should have had stop signs facing FM 3072. Consequently, she did not notify TxDOT about the signs' absence.

The accident occurred around two-thirty in the afternoon on Sunday, February 8. Soon after, TxDOT received notice that the stop signs were down. In response, TxDOT dispatched a maintenance crew to reinstall the signs. The crew completed its work within two hours.

Several plaintiffs, individually and as representatives of the estates of the deceased ("Gonzalez"), sued TxDOT under the Act. Gonzalez alleged: the repeated vandalism to the intersection's stop signs constituted a "condition" under section 101.060(a)(2) of the Act; TxDOT had notice of the condition but did not correct it within a reasonable time; and TxDOT's negligence proximately caused the plaintiffs' injuries. TxDOT filed a plea to the jurisdiction, asserting that the Act does not waive immunity for Gonzalez's claims. The trial court denied the plea, and the case went to trial.

The trial court instructed the jury to find TxDOT negligent if: a premises "condition" posed an unreasonable risk of harm to Maria; TxDOT had actual knowledge of the danger; Maria did not have actual knowledge; and TxDOT failed to use ordinary care to warn Maria about the condition or to make the condition reasonably safe. Over TxDOT's objection, the jury charge also contained a spoliation instruction about TxDOT's actual knowledge.

The jury found TxDOT negligent, and the trial court entered judgment for Gonzalez. The court of appeals affirmed the trial court's judgment. 24 S.W.3d at 540. The court of appeals recognized that section 101.060(a)(3) of the Act discusses the State's immunity when third parties vandalize signs. 24 S.W.3d at 538. But it held that the State's immunity was waived under section 101.060(a)(2), because the vandalism was "so severe and pervasive it constitutes a `condition' of the sign, signal or traffic control device." 24 S.W.3d at 538. Under these circumstances, the court of appeals concluded, the State "has a duty to respond to the [vandalism's] frequency." 24 S.W.3d at 538. The court of appeals also held that, under section 101.060(a)(2), a plaintiff need not show "that the State had actual knowledge that the sign was down on the day of the accident." 24 S.W.3d at 538. We granted TxDOT's petition for review to determine whether repeated vandalism is a "condition" for which subsection (a)(2) of the Act waives immunity.

II. APPLICABLE LAW

A. TORT CLAIMS ACT

The State's sovereign immunity from suit for tort claims is waived to the extent the Act creates liability. TEX. CIV. PRAC. & REM.CODE § 101.025(a). The Act waives the State's immunity 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." TEX. CIV. PRAC. & REM.CODE § 101.021(2). However, the Act establishes various exceptions to this general waiver.

Section 101.056 excepts claims based on the State's discretionary policy decisions. TEX. CIV. PRAC. & REM.CODE § 101.056(2). For instance, the Act does not waive immunity for decisions about highway design or what types of safety features to install, because these decisions involve the exercise of discretion. State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999); State v. Rodriguez, 985 S.W.2d 83, 86 (Tex. 1999). Whether a governmental activity is discretionary is a legal question. Miguel, 2 S.W.3d at 251.

Section 101.060(a) provides additional exceptions. It states that the Act does not waive the State's immunity for claims arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;

(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice; or

(3) the removal or destruction of a traffic or road sign, signal, or warning device by a third person unless the governmental unit fails to correct the removal or destruction within a reasonable time after actual notice.

TEX. CIV. PRAC. & REM.CODE § 101.060(a).

Under subsection (a)(1), the State retains immunity for discretionary sign-placement decisions. Rodriguez, 985 S.W.2d at 85. For instance, when traffic engineers decide where to place warning signs around a detour, the State retains its immunity. Rodriguez, 985 S.W.2d at 86.

Under subsection (a)(2), the State retains immunity as long as it corrects a sign's defective "condition" within a reasonable time after notice. Thus, subsection (a)(2) requires the State to maintain traffic signs in a condition sufficient to perform their intended traffic-control function. See, e.g., City of Midland v. Sullivan, 33 S.W.3d 1, 12 (Tex.App.-El Paso 2000, pet. dism'd w.o.j.); Texas Dep't of Transp. v. Henson, 843 S.W.2d 648, 651 (Tex.App.-Houston [14th Dist.] 1992, writ denied); Lawson v. McDonald's Estate, 524 S.W.2d 351, 356 (Tex.App.-Waco 1975, writ ref'd n.r.e.). A traffic sign's "condition" may be "an intentional or an inadvertent state of being." Sparkman v. Maxwell, 519 S.W.2d 852, 858 (Tex.1975).

Under subsection (a)(3), the State retains immunity from suit if a third party removes or destroys a traffic sign, unless the State fails to replace the sign within a reasonable time after actual notice. See City of Dallas v. Donovan, 768 S.W.2d 905, 909 (Tex.App.-Dallas 1989, no writ). Whether the State has actual notice about a removed or destroyed traffic sign is a fact question. See Lorig v. City of Mission, 629 S.W.2d 699, 701 (Tex.1982).

B. STATUTORY CONSTRUCTION

In construing a statute, we try to determine and give effect to the Legislature's intent. TEX. GOV'T CODE § 312.005; American Home Prods. Corp. v. Clark, 38 S.W.3d 92, 95 (Tex.2000). We look first to the "plain and...