Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland

• Decision Date: 22 November 1989
• Docket Number: No. 2-88-071-CV,2-88-071-CV
• Citation: 781 S.W.2d 427
• Parties: TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1; State Parks and Wildlife Department; State Department of Highways and Public Transportation, Appellants, v. Donna L. CROSSLAND, Individually and on Behalf of Chadwick Barry Crossland, Charles Barry Crossland, and Shawn Paul Crossland, Minors, and as Independent Executrix of the Estate of Woodrow Barry Crossland, Deceased; Gladys Chrismon; Sherrion Adams, Individually and on Behalf of Bryan Keith Adams, and Tracy Ann Walker, Minors, and as Independent Executrix of the Estate of Michael Willard Adams, Deceased, Appellees.
• Court: Texas Court of Appeals

Page 427

781 S.W.2d 427

TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1 State Parks and Wildlife Department; State Department of Highways and Public Transportation, Appellants, v. Donna L. CROSSLAND, Individually and on Behalf of Chadwick Barry Crossland, Charles Barry Crossland, and Shawn Paul Crossland, Minors, and as Independent Executrix of the Estate of Woodrow Barry Crossland, Deceased; Gladys Chrismon; Sherrion Adams, Individually and on Behalf of Bryan Keith Adams, and Tracy Ann Walker, Minors, and as Independent Executrix of the Estate of Michael Willard Adams, Deceased, Appellees.

No. 2-88-071-CV.

Court of Appeals of Texas Fort Worth.

Nov. 22, 1989.

Pope, Hardwicke, Christie, Harrell & Kelly, George F. Christie and Christopher A. Troutt, Fort Worth, Jim Maddox, Atty. Gen., Patricia M. Charlton, Asst. Atty. Gen., Austin, for appellants.

Law Offices of Windle Turley, PC, Richard N. Countiss and Edward H. Moore, Dallas, for appellees.

Before JOE SPURLOCK, II, HILL and LATTIMORE, JJ.

OPINION

LATTIMORE, Justice.

This is an appeal from a judgment in favor of plaintiffs in a wrongful death suit. TEX.CIV.PRAC. & REM.CODE § 71.002 (Vernon 1986). Plaintiffs/appellees are listed above and are hereinafter collectively referred to as "appellees." Defendants/appellants are Tarrant County Water Control and Improvement District No. 1 (Water District); State Parks and Wildlife Department (Parks and Wildlife Department); Department of Highways and Public Transportation of the State of Texas (Highway Department). Appellants have perfected this appeal from the judgment.

Judgment is reversed and rendered.

On May 28, 1982, Woodrow Crossland and Michael Adams were fatally injured in a boating accident on Cedar Creek Reservoir (reservoir) in Henderson County, Texas. The Crossland and Adams families went to the reservoir for the Memorial Day weekend arriving about 9:30 p.m. on Friday, May 28. The Caney Creek bridge (bridge) crosses a portion of the reservoir called Caney Creek Cove. The Adams owned a lot on Caney Creek Cove. A boat must go under the bridge to go from Caney Creek Cove into the main part of the reservoir. A boat must slow down to sit lower in the water in order to go safely under the bridge because of the amount of clearance between the water and the underside of the bridge.

About 11:00 p.m., Crossland and Adams decided to go fishing. They got into Sherrion Adams' sixteen-foot Sterncraft inboard/outboard boat and went out into Caney Creek Cove. The boat did not have headlights or a spotlight, but there was a fluorescent light inside the boat. Crossland and Adams were killed around 11:35 p.m., when their heads struck the underside of the bridge while they were trying to pass under the bridge.

The parties disagree on several issues of fact, for example: how much alcohol did Crossland and Adams drink before the accident; how fast was the boat going when it hit the bridge; was the bridge visible at night; were the decedents knowledgeable about the location of the bridge. All parties do agree Crossland and Adams lost their lives when they struck their heads on the underside of the bridge.

Appellees filed this wrongful death action against appellants seeking money damages under the Texas Tort Claims Act. TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986). Trial was to a jury which returned a verdict for appellees. The jury determined the comparative negligence percentages as follows: Parks and Wildlife Department, 45%; Highway Department, 30%; Water District, 20%; Michael Adams, 5%; Woodrow Crossland, 0%. The jury awarded a total of $1,282,000 damages. The trial court considered Parks and Wildlife Department and Highway Department to be liable as one governmental unit, the State of Texas. The judgment limited recovery under the Texas Tort Claims Act to $200,000 from the Water District ($100,000 for each decedent) and $200,000 from the State of Texas. TEX.REV.CIV.STAT.ANN. art. 6252-19 (Vernon 1970) (a limit of $250,000 per death is now provided by TEX.CIV.PRAC. & REM.CODE ANN. § 101.23 (Vernon Supp.1989)).

Several issues in this case are governed by the Texas Civil Practices and Remedies Code which was effective September 1, 1985. At the time of the accident in 1982, the relevant statutes were found in the Texas Revised Civil Statutes. As noted above, the $100,000 limit of article 6252-19 has changed, but the language of the relevant statutes is still the same. For the sake of simplicity, we will refer only to the code.

The three appellants raised a total of eighty-seven points of error, but many of these points are redundant. For the sake of clarity and simplicity, we have grouped the points of error into nine contentions. Appellants contend the trial court erred in:

1. Overruling appellants' motions for judgment non obstante veredicto because appellants are entitled to governmental immunity because the bridge was constructed before the effective date of the Texas Tort Claims Act. Water District's point of error three; Highway Departments's points of error seven, and ten through fourteen; Parks and Wildlife Department's points of error seven through ten.

2. Overruling appellants' motions for judgment non obstante veredicto because appellants are not required by law to put lights on the bridge. Water District's point of error four; Highway Department's points of error ten through fourteen; Parks and Wildlife Department's points of error seven through ten.

3. Submitting the case to the jury as a special defect case because the bridge is not a special defect under TEX.CIV.PRAC. & REM.CODE ANN. § 101.022 (Vernon 1986). Water District's points of error ten through seventeen; Highway Department's points of error one through five; Parks and Wildlife Department's points of error eleven through fifteen and twenty-four through thirty.

4. Commenting on the evidence by using the term "dangerous obstruction" instead of "dangerous condition" in the jury charge. Water District's point of error nine; Highway Department's points of error twenty through twenty-two; Parks and Wildlife Department's points of error twenty-one through twenty-three.

5. Overruling Water District's motion for judgment non obstante veredicto and motion for new trial because there was no evidence or insufficient evidence to support the jury's finding that Water District committed an act or omission of negligence which was a proximate cause of the accident. Water District's point of error twenty.

6. Overruling Water District's motion for new trial because the jury's finding that Adams was only five percent negligent was against the overwhelming weight of the evidence. Water District's point of error twenty-one.

7. Overruling Water District's motion for judgment non obstante veredicto because the duty which the Water District owed the decedents was limited to the duty owed a trespasser under TEX.CIV.PRAC. & REM.CODE ANN. § 75.002 (Vernon 1986). Water District's points of error one and two.

8. Refusing to submit the issue of Crossland's negligence to the jury. Water District's points of error twenty-two through twenty-four.

9. Overruling Water District's motion to correct the judgment because the amount recoverable by the Adams plaintiffs should have been a total of $179,800 instead of $200,000. Water District's point of error twenty-five.

We do not address some points of error which are not necessary to our disposition of the case. TEX.R.APP.P. 90(a). Water District's points of error five through eight, eighteen and nineteen; Highway Departments points of error six through nine and fifteen through nineteen; Parks and Wildlife Department's points of error one through six, sixteen through twenty and twenty-four through thirty-two.

Appellees also raise a cross-point contending the damages limitation of the Texas Tort Claims Act is unconstitutional.

First Contention.

Appellants contend the trial court erred in rendering judgment for appellees because appellants are protected by governmental immunity because the bridge and reservoir were constructed before the effective date of the Texas Tort Claims Act. We agree.

The Superintendent of the reservoir testified the reservoir and bridge were completed by 1967 and have not been modified. The Texas Tort Claims Act "does not apply to a claim based on an act or omission that occurred before January 1, 1970." TEX.CIV.PRAC. & REM.CODE ANN. § 101.061 (Vernon 1986). Appellees may not state a claim under the Tort Claims Act for any defect in the bridge or reservoir because any such defect would be due to an act or omission that occurred before 1970. In particular, the State will not be liable based on the design of the bridge and reservoir because the bridge and reservoir were designed before 1970. Burnett v. Texas Highway Dep't., 694 S.W.2d 210, 211-12 (Tex.App.--Eastland 1985, writ ref'd n.r.e.). Lights, signs, and safety features are part of a design. Shives v. State, 743 S.W.2d 714, 716-17 (Tex.App.--El Paso 1987, writ denied); Burnett, 694 S.W.2d at 212. Therefore, the State cannot be liable based on the failure to include lights, signs, and safety features in the original pre-1970 design.

A cause of action under the Texas Tort Claims Act must be based on an act or omission which occurred after 1970. Cf. Beggs v. Texas Dep't of Mental Health & Mental Ret., 496 S.W.2d 252, 254 (Tex.Civ.App.--San Antonio 1973, writ ref'd) (claim which did not allege use of property did not state a claim within the Texas Tort Claims Act). The word "occur" means "to come into existence." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 817 (1983). An "omission" is "something neglected or left undone." Id. at 823. When the bridge and reservoir were completed the State did not provide instructions, lights, warnings, signs, or barriers, so these omissions occurred before 1970. After 1970, the State continued to leave undone the installation of warnings, so the omissions continued to exist, but appel...