State v. San Miguel

• Decision Date: 30 July 1998
• Docket Number: No. 14-95-00756-CV,14-95-00756-CV
• Citation: 981 S.W.2d 342
• Parties: The STATE of Texas, et al., Appellants, v. John SAN MIGUEL, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 342

981 S.W.2d 342

The STATE of Texas, et al., Appellants, v. John SAN MIGUEL, et al., Appellees.

No. 14-95-00756-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 30, 1998.

Rehearing Overruled Sept. 3, 1998.

David Bass Strain, Austin, Cliff Harrison, Stacy L. Stair, Houston, for appellants.

John T. McDowell, Joe Crabb, Michael T. Fuerst, Houston, for appellees.

Before LEE, AMIDEI, and EDELMAN, JJ.

OPINION ON REHEARING

LEE, Justice.

The State's motion for rehearing is denied, the majority and concurring opinions issued in this case on January 8, 1998 are withdrawn, and the following opinions are substituted in their places.

The State of Texas appeals from a jury verdict awarding appellees damages for wrongful death and personal injuries sustained in a one car accident. In ten points of error, the State contends (1) the trial court improperly submitted the case under a general negligence charge, (2) the trial court erred in refusing to submit a jury question on the affirmative defense of official immunity, (3) the evidence conclusively establishes the affirmative defense of official immunity, and (4) it is immune from liability under section 101.056 of the Texas Tort Claims Act. We affirm.

Background

On February 28, 1989, Jose Trinidad Estrada lost control of his van while driving over an elevated exit ramp of the North Loop East Freeway. The Texas Department of Transportation ("TDOT") had placed a temporary barricade warning device in front of a large section of missing railing. The van struck the barricade device, hurdled an eighteen inch concrete parapet wall, and fell approximately sixty feet to the ground. Estrada and three passengers were killed in the accident, and a fourth passenger sustained debilitating injuries.

Appellees sued the State of Texas alleging alternative theories of recovery including premises liability and the negligent use of tangible personal property. The jury was asked two questions regarding liability: (1) did the negligence, if any, of the State or Estrada proximately cause the occurrence in question; (2) what percentage of the negligence that caused the occurrence was attributable to the State and what percentage was attributable to Estrada. The charge instructed the jury to answer Question 2 only if it found the occurrence was attributable to the negligence of both the State and Estrada. The jury found the State and Estrada were both negligent and apportioned responsibility for the accident at 50% for each party. The jury awarded damages in the amount of $1,183,402.04, which the trial court reduced to $500,000. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.023 (Vernon 1986). This appeal followed.

Analysis

Points of Error Three Through Five

In its third point of error, the State contends the trial court erred in submitting the case under a general negligence charge because the case arises from a premises defect. In its fourth point, the State alleges the trial court erred in refusing to submit its proposed jury question requiring appellees to prove that the State failed to post an adequate warning. In its fifth point, the State contends there was no evidence it failed to warn appellees of the dangerous condition of the highway.

The trial court has great discretion in submitting the jury charge. See TEX.R. CIV. P. 277. The questions submitted, however, must control the disposition of the case, be raised by the pleadings and evidence, and properly submit the disputed issues for the jury's deliberation. See TEX.R. CIV. P. 278; Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995).

The evidence at trial revealed that eleven months prior to appellees' accident, a truck crashed into the side wall of the exit ramp, knocking out a thirty-seven foot section of the railing. State engineers determined immediate repair of the railing was unnecessary, and the State's highway maintenance crew placed a temporary barricade device in front of the missing railing. This barricade device consisted of several fifty-five gallon metal barrels fastened together by steel cable. The device stretched across the area of the missing railing, was connected to the ramp by steel cable, and was installed in front of the highway's eighteen inch concrete parapet wall. Prior to installing the device, the federal government had determined the steel barrels were hazardous and advised the State to "phase out" their use by August 1989.

The State conceded the barrel device was inadequate to redirect traffic but claimed it was adequate to serve its intended purpose of warning the public of danger. Appellees argued the State misused the barrels device, and their expert witnesses, Randall Dodd and Maurice Bronstad, opined that the device crumpled at impact and acted as a ramp to launch the van over the parapet wall. Bronstad also testified that state employees had misused the barrels by placing them in front of the parapet wall and the missing railing.

After both sides rested, appellees submitted a general negligence charge. The State objected to the charge and asked the court to submit the case under a premises defect theory. The trial court overruled the State's objection and submitted the case under a general negligence charge. The State contends this was error.

Under the doctrine of sovereign immunity, the State is not liable for the negligence of its officers or employees absent constitutional or statutory provision waiving immunity from liability. See University of Texas Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). Section 101.021 of the Texas Tort Claims Act ("TTCA") sets forth the extent to which Texas has waived its immunity. Under that section, the State or a governmental unit of 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." TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(2). Liability for premises defects is implied under section 101.021(2) because such defects arise from a condition existing on real property. See University of Texas Med. Branch v Davidson, 882 S.W.2d 83, 84 (Tex.App.--Houston [14 th Dist.] 1994, no writ).

For claims arising from the "condition or use" of tangible personal property, the standard of care is the same as the "governmental unit would, were it a private person, be liable to the claimant according to Texas law." Id. § 101.021(2). In such cases, a general negligence jury charge is proper. See Texas Dep't. of Transp. v. Henson, 843 S.W.2d 648 (Tex.App.--Houston [14 th Dist.] 1992, writ denied); City of Baytown v. Townsend, 548 S.W.2d 935, 940 (Tex.Civ.App.--Houston [14 th Dist.] 1977, writ ref'd n.r.e.). For claims stemming from a premises defect, the standard of care is limited to the duty a private landowner owes a licensee. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.022; see also State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974); Hawley v. State Dep't. of Highways & Pub. Transp., 830 S.W.2d 278 (Tex.App.--Amarillo 1992, no writ). That duty requires a landowner not to injure a licensee through willful, wanton, or grossly negligence conduct, and requires the landowner to use ordinary care to either warn a licensee of, or to make reasonably safe, a dangerous condition of which he is aware and the licensee is not. See State Dep't. of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992); Tennison, 509 S.W.2d at 562. To prevail on a premises defect claim, the plaintiff must obtain jury findings that: (1) the defendant knew or should have known of the defective condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the defendant failed to exercise reasonable care to reduce or eliminate the risk; and (4) the defendant's failure to use such care proximately caused the plaintiff's injuries. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992).

The State contends the trial court erred in submitting the case under general negligence law because appellees' claims stem from a premises defect. Appellees argue their injuries resulted from the State's misuse of the barrel warning device, not a defective condition of the highway. Therefore, the issue we must decide is whether appellees' claims arise from a premises defect or a condition or use of tangible personal property.

A premises defect is a defect or dangerous condition arising from a condition on the premises. See Davidson, 882 S.W.2d at 85. For example, a negligently waxed floor, slippery algae growth on rocks at the base of stairs, or a security screen permanently attached to an exterior window are all cases involving premises defects. See, e.g., Tennison, 509 S.W.2d at 560 (floor); Blankenship v. County of Galveston, 775 S.W.2d 439 (Tex.App.--Houston [1 st Dist.] 1989, no writ) (algae on rocks); Billstrom v. Memorial Med. Ctr., 598 S.W.2d 642, 647 (Tex.Civ.App.--Corpus Christi 1980, no writ) (screen). In contrast, injuries caused by a hospital bed with no side rails, portable traffic control devices, or an unattached wall divider arise from the condition or use of tangible personal property. See, e.g., Overton Memorial Hosp. v. McGuire, 518 S.W.2d 528 (Tex.1975) (hospital bed); Henson, 843 S.W.2d 648 (traffic barrel signs); Harris Co. v. Dowlearn, 489 S.W.2d 140 (Tex.Civ.App.--Houston [14 th Dist.] 1972, writ ref'd n.r.e.) (wall divider).

Determining whether the particular object that caused the injury falls into the category of "premises defect" or "use or condition of property" is often a difficult task. However, because the parties have placed the issue squarely before us, it is a determination we must now make. This Court has previously recognized that because the TTCA does not define "premises defect," a common and ordinary meaning should be applied. See Davidson, 882 S.W.2d at 85 (citing Billstrom, 598 S.W.2d at 646). A "premises" is "a building or part of a building...