Stein v. Highland Park Independent Sch. Dist.

• Decision Date: 03 August 1976
• Docket Number: No. 8384,8384
• Citation: 540 S.W.2d 551
• Parties: Betty (Minyard) STEIN, Appellant, v. HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT et al., Appellees.
• Court: Texas Court of Appeals

Page 551

540 S.W.2d 551

Betty (Minyard) STEIN, Appellant, v. HIGHLAND PARK INDEPENDENT SCHOOL DISTRICT et al., Appellees.

No. 8384.

Court of Civil Appeals of Texas Texarkana.

Aug. 3, 1976.

Rehearing Denied Aug. 31, 1976.

Betty (Minyard) Stein, pro se.

Richard E. Gray, Jr., Thompson, Knight, Simmons & Bullion, Dallas, for appellees.

OPINION

CORNELIUS, Justice.

Appellant, Betty (Minyard) Stein, filed suit against the Highland Park Independent School District and its trustees individually for the abatement of, and to recover damages resulting from, a nuisance. Appellant pleaded that the nuisance arose from the improper construction and maintenance of an addition to a high school building directly across the street from an apartment complex she owned and operated. She alleged that the addition was constructed so its main entrance was located only thirty-nine (39 ) feet from her property, although the applicable zoning ordinances prescribed that a distance of at least fifty (50 ) feet should be maintained; ¹ that a parking area was maintained in front of the entrance utilizing all available parking space; that the close proximity and nature of the building's design resulted in continuing and repeated trespasses by students and others upon her property; that she and her property were subject to constant harassment by students, noise, the scattering of debris, and other repeated interferences with her use and enjoyment and her tenants' use and enjoyment of the property; and that such acts constituted a continuing nuisance which had substantially damaged her property.

Appellees filed a motion for summary judgment which contended they were entitled to judgment as a matter of law. The motion was based upon assertions that appellees were protected from the alleged liability by the doctrine of governmental immunity, that appellant's action was barred by limitations, and that appellees owed no duty to appellant. The trial court sustained the motion and rendered judgment that appellant take nothing.

The appeal presents thirteen points of error. They are not prepared in conformity with the rules, but in the interest of justice have been considered. The most significant complaint is that summary judgment was not proper.

Appellees' motion for summary judgment was not supported by affidavits, but was directed solely to the sufficiency of appellant's pleadings to state an enforceable claim. In ruling upon such a motion, the court must take as true every allegation of the pleadings against which the motion is directed. If the pleadings, when liberally construed, alleged material facts sufficient to entitle the pleader to the judgment sought, the motion for summary judgment should be denied. 4 McDonald's, Texas Civil Practice, Sec. 17.26.8.

Independent school districts are of the same general character as municipal corporations--that is, they are quasi-municipal corporations. Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931); 51 Tex.Jur.2d, Schools, Sec. 6, p. 283. As such they are protected by the doctrine of governmental immunity from liability for torts arising from their performance of governmental functions, except in certain limited instances, not applicable here, where that immunity has been waived by the provisions of the Texas Tort Claims Act. ² See Braun v. Trustees of Victoria Independent School Dist .,114 S.W.2d 947 (Tex.Civ.App. San Antonio 1938, writ ref'd). But there is a recognized exception to the rule of governmental immunity for municipal and quasi-municipal corporations. It does not shield such entities from liability arising out of the creation or maintenance of a nuisance. Gotcher v. City of Farmersville, 137 Tex . 12, 151 S.W.2d 565 (1941); City of Corsicana v. Albritton, 20 S.W.2d 363 (Tex.Civ.App. Waco 1929, writ ref'd); Wiggings v. City of Fort Worth, 299 S.W. 468 (Tex.Civ.App. Fort Worth 1927, no writ); City of Haskell v. Webb, 140 S.W. 127 (Tex.Civ.App. Fort Worth 1911, no writ); Donovan v. Royall, 63 S.W. 1054 (Tex.Civ.App.1901, writ ref'd); 40 Tex.Jur.2d, Municipal Corp., Sec. 630, p. 316. A municipal corporation has no more right to create or maintain a nuisance than does a private person. City of Ennis v. Gilder, 74 S.W. 585 (Tex.Civ.App.1903, writ ref'd); 40 Tex.Jur.2d, Municipal Corp., Sec. 630, p. 317. To constitute a nuisance coming within the exception, however, the condition must in some way constitute an unlawful invasion of the property or the rights of others. Gotcher v. City of Farmersville, supra; Braun v. Trustees of Victoria Independent School Dist., supra. And, it has been said that the invasion of those rights must be inherent in the thing or condition itself, beyond that arising merely from its negligent or improper use. Jones v. City of Dallas, 451 S.W.2d 271 (Tex.Civ.App. Dallas 1970, no writ); Steele v. City of El Paso, 417 S.W.2d 923 (Tex.Civ.App. El Paso 1967, writ ref'd n.r.e.); Parson v. Texas City, 259 S.W.2d 333 (Tex.Civ.App. Fort Worth 1953, writ ref'd).

Texas cases have applied the nuisance concept of liability to municipal corporations in the maintenance of dumping grounds ³ and in the construction and maintenance of a sewer. ⁴ We have found no Texas case imposing such liability on a school district, but the decision in Braun v. Trustees of Victoria Independent School Dist., supra, and the authorities there cited indicate that liability may be imposed when the requisite type of nuisance is alleged and proven. The majority rule in the United States also supports that view. See Annotation, 33 A.L.R.3rd, p. 759. The cases of Kriener v. Turkey Valley Community School Dist., 212 N.W.2d 526 (S.Ct. Iowa 1973), Waymon v. Board of Education, 5 Ohio St.2d 248, 215 N.E.2d 394 (1966) and Ness v. Independent School Dist. of Sioux City, 298 N.W. 855 (S.Ct. Iowa 1941), applied the rule of liability to school districts in the maintenance of a sewage disposal facility, a school parking lot, and a school playground, respectively. The conditions alleged to have constituted a nuisance in Ness, supra, are remarkably similar to those alleged by appellant in this suit.

It will not be easy at the trial for appellant to make proof sufficient to bring her case within the exception to the rule of immunity. But she has pleaded facts sufficient to constitute a cause of action for the type of nuisance coming...