State v. Gonzalez

• Decision Date: 29 June 2000
• Citation: 24 S.W.3d 533
• Parties: (Tex.App.-Corpus Christi 2000) THE STATE OF TEXAS, BY AND THROUGH THE STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellants, v. MARIA C. GONZALEZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HILDA MARTINEZ, DECEASED, ET AL., Appellees. NUMBER 13-97-237-CV
• Court: Texas Court of Appeals

Page 533

24 S.W.3d 533 (Tex.App.-Corpus Christi 2000)

THE STATE OF TEXAS, BY AND THROUGH THE STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellants, v. MARIA C. GONZALEZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HILDA MARTINEZ, DECEASED, ET AL., Appellees.

NUMBER 13-97-237-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

June 29, 2000

Rehearing Overruled August 17, 2000

On appeal from the 332nd District Court of Hidalgo County, Texas.

Before Justices Dorsey, Hinojosa, and Rodriguez

OPINION

Opinion by Justice Dorsey

In February of 1987, Maria Alicia Gonzalez was driving on FM 3072 with her sister, niece and her children. She failed to stop at an intersection and crashed into another vehicle. All occupants of Gonzalez' vehicle, save one, died at the scene.

The survivors sued the State of Texas, through its Department of Transportation, alleging it was negligent in failing to maintain the stop sign at the intersection where the accident occurred. The jury found the State negligent, and the court entered judgment in favor of the plaintiffs. The State appeals by six points of error.¹

The intersection of Texas FM 3072 and FM 2557 in Hidalgo County is normally controlled by stop signs on FM 3072. Traffic traveling east and west on FM 3072 must yield right-of-way to the north-south traffic on FM 2557. On the southwest corner of the intersection, a four to five feet high levee parallels FM 3072, creating a visual barrier preventing drivers traveling east or north into the intersection from seeing one another until about thirty feet from the intersection. On February 8, 1987, Gonzalez drove her two sons, Anthony and Jonathan Rincones, her sister, Hilda Martinez, and her niece, Irene Rodriguez, on a family outing eastbound on FM 3072. They entered the intersection traveling approximately seventy miles per hour in mid-afternoon and collided with a van driven by Stanley Brock, who was northbound on FM 2557. The stop sign controlling east-bound traffic had been knocked down and was not visible to Gonzalez.² There is no evidence she tried to slow her car before impact. Gonzalez, her sister, niece, and son Anthony, died at the scene. Her son, Jonathan, and Brock and his passenger suffered minor injuries.

The evidence was that Texas Department of Transportation (DOT) had recent notice the intersection stop signs were the focus of repeated vandalism: on January 20, DOT employees discovered and repaired a downed stop sign without filing a report; on January 24, DOT employees discovered, reported, and repaired both downed signs; on January 31, again both signs were discovered and repaired by DOT employees, but without report; on February 2 or 3, both signs were again reinstalled with no report; on February 5, both signs were found down and reinstalled, with a report; on February 6, at least one of the signs was reinstalled and reported. On six occasions over a seventeen-day period, stop signs were found down or missing at the intersection; however, only four reports document the incidents.

DOT Assistant Maintenance Supervisor Raul Martinez ordered regular inspections of the intersection following the first incident in February. DOT also notified the Hidalgo County Sheriff's Department of the suspected vandalism and requested assistance in monitoring the intersection. The sheriff's department dispatcher prepared an "Immediate Extra Patrol" order for increased surveillance of the intersection.

On Saturday, February 7, DOT employee Jose Jackson observed the signs were all in place. Motorist Catherine Pearson testified she noticed the signs were down at 10:30 on the morning of the accident, but that she did not notify anyone. There were no reports to DOT of downed signs following the February 6 reinstallation.

I. Liability Under the Tort Claims Act: In General

This case is difficult to understand without first addressing the general principles for governmental liability under the Tort Claims Act for failure to maintain a street sign. See Tex. Civ. Prac. & Rem. Code Ann. chap.101(Vernon 1997) (the "Act"). Several sections of the Act are relevant to this case. First, section 101.021 contains the general provision, outlining the only circumstances under which the State will waive sovereign immunity for premises liability. That section states that a governmental unit in this State is liable for:

personal injury and death 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(2) (Vernon 1997).

Usually, claims arising from premises defects are limited by section 101.022, which provides that the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. Id. at § 101.022(a). However, subsection (b) renders that limitation inapplicable to cases involving traffic signs, signals and devices. Specifically, the limitation does not extend to "the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by section 101.060." Id. at § 101.022(b).

Section 101.060 deals with traffic signs, signals and warning devices. It states that the State retains its sovereign immunity for claims arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device . . . ;

(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.

Id. at § 101.060. With this framework in mind, we turn to the State's points on appeal.

II. Liability For a "Condition"

The State contends that there is no evidence to support the finding of liability under section 101.060 of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.060 (Vernon 1997). We hold that liability was properly imposed under § 101.060(a)(2), and find the evidence legally sufficient to support the verdict. Subsection (a)(2), essentially, limits the government's liability for maintenance of road signs to instances when it has failed to take corrective action within a reasonable time after receiving notice of the condition of the road sign. Id.

The statute reads that the State retains sovereign immunity for:

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.

Id.

The State argues that the "condition" at issue is the condition of a downed stop sign. The plaintiffs take the position that the "condition" at issue is the sign's very recent history of being the subject of extraordinarily frequent vandalism. They argue that the State had adequate notice that the condition of that stop sign was such that it was capable of being repeatedly vandalized, and that the frequent downings of the sign caused an unreasonably dangerous condition. Under these particular facts, we agree.

The question is, can the repeated vandalism of a stop sign be considered a "condition" for purposes of section 101.060(a)(2). The Texas Supreme Court held in Lorig v. City of Mission, 629 S.W.2d 699, 701 (Tex. 1982), that a stop sign's obstruction from view by trees or branches is such a "condition." The court also held that a traffic light altered by the city to show a red arrow instead of a red light constituted a "condition." Sparkman v. Maxwell, 519 S.W.2d 852, 857 58 (Tex. 1975). The courts of appeal have held that a light that simultaneously showed green to drivers traveling in different directions could be such a condition, State v. Norris, 550 S.W.2d 386, 390 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.), and even a dangerous intersection which did not have an appropriate traffic signal at a dangerous intersection could be considered such a condition. Zambory v. City of Dallas, 838 S.W.2d 580, 582 (Tex. App.--Dallas 1992, writ denied).

The Texas Supreme Court has held that the term "refers to either an intentional or an inadvertent state of being." Sparkman v. Maxwell, 519 S.W.2d 852, 858 (Tex. 1975). In Sparkman, the court held that where the city had notice of a problematic condition, as defined, it could be liable. Id.³

The dictionary defines the term "condition" to mean "a particular mode or state of being of a thing." Oxford English Dictionary 785 (1971). When statutory words are not defined, they should be given their plain and common meaning. Tex. Gov't Code Ann. § 311.011(a) (Vernon 1989); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993). If we substitute that definition into the statutory language, the statute reads that it applies to situations involving "the particular mode or state of being of a traffic or road sign, signal, or warning device." It is fair to say that the "state of being" of the stop sign at issue in this case was that it was the subject of repeated vandalism. Thus, we hold that the condition of being the subject of repeated and extraordinarily frequent vandalism can be a condition for purposes of section 101.060(a)(2) liability. See also City of Baytown v. Peoples, 9 S.W.3d at 396 97 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (holding that exclusive method for determining tort claims act liability for malfunctioning traffic signal was under 101.060(a)(2)).

Further, we find the evidence to be sufficient that the State failed to correct the condition...