Texas Dept. of Transp. v. Able, 01-96-01471-CV

• Decision Date: 17 September 1998
• Docket Number: No. 01-96-01471-CV,01-96-01471-CV
• Citation: 981 S.W.2d 765
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Luke W. ABLE; Ben Dees and George Hans Knoll, Coexecutors of the Estate of Margaret Able, Deceased; Ramona Lee Dees; and Sylvia Jane Knoll, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 765

981 S.W.2d 765

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Luke W. ABLE; Ben Dees and George Hans Knoll, Coexecutors of the Estate of Margaret Able, Deceased; Ramona Lee Dees; and Sylvia Jane Knoll, Appellees.

No. 01-96-01471-CV.

Court of Appeals of Texas Houston (1st Dist.).

Sept. 17, 1998.

Rehearing Overruled Dec. 21, 1998.

Charles M. Ratliff, Houston, for appellant.

David L. Monroe, Houston, for appellees.

Before MIRABAL, TAFT and EVANS, ^* JJ.

OPINION

FRANK G. EVANS, Justice (Retired).

The principle issue in this case is whether a state agency, the Texas Department of Transportation ("TxDot") is liable under the Texas Tort Claims Act for the negligence of an employee of another public entity, the Metropolitan Transit Authority ("Metro"), by virtue of having engaged in a joint enterprise with Metro for the operation and maintenance of a public transportation system. We conclude that TxDot is legally liable and accordingly affirm the judgment.

The Transitways Agreement

In 1988, Metro and TxDot entered into a Transitways Agreement for the operation and maintenance of a contemplated system of transitways (the Transitways System) along TxDot's freeways lying within Metro's jurisdiction. The stated purpose of this agreement is to enable the parties to "accomplish uniformity and coordination" in relation to the safe and effective operation and maintenance of the Transitways System and to specify their respective rights and obligations for the operation and maintenance of that system.

The Transitways System includes certain high occupancy vehicle ("HOV") lanes, which are typically 19.5-feet wide, reversible, one-lane roadways located between the freeway traffic lanes. Each HOV lane is separated from the adjacent freeway traffic lanes by concrete barriers.

The Accident

In 1993, Dr. Luke W. Able, driving a minivan with his wife, Margaret Able, as his passenger, was traveling outbound from Houston in a westerly direction along the Highway 290 HOV lane when he encountered a pickup truck driven by Jerry Huebner, which was going the wrong way along the HOV lane. Dr. Able was unable to avoid a head-on collision with Huebner's pickup, and both Margaret Able and Huebner's passenger were killed in the accident.

The Litigation: Verdict and Judgment

Dr. Able, the executors of Margaret Able's estate (Ben Dees and George Hans Knoll), and Margaret Able's survivors (Ramona Lee Dees and Sylvia Jane Knoll), brought this action against TxDot, Metro, Harris County, and the City of Houston, but nonsuited Harris County before trial. A jury found that Huebner, who was not a defendant, and Metro each were 50 percent negligent and that Metro was grossly negligent with respect to the condition of the transitway system premises. The jury further found TxDot was not negligent, but that Metro and TxDot were engaged in a joint enterprise. The jury awarded $1,000,000 in damages to Dr. Able, $750,000 to Ramona Dees, $750,000 to Sylvia Jane Knoll, and $200,000 to the estate of Margaret Able. Based on the negligence finding as to Metro and the finding of joint enterprise as to Metro and TxDot, the trial court rendered judgment against TxDot for the statutory maximum amounts of $250,000 in favor of Dr. Able and $250,000 jointly to the estate of Margaret Able, Ramona Dees, and Sylvia Jane Knoll. TxDot appeals from that judgment, asserting three points of error. The trial court rendered judgment against Metro for a total of $200,000 and a take-nothing judgment as to Harris County and the City of Houston.

Point of Error One

Immunity and the Texas Tort Claims Act

TxDot first contends that it did not waive its sovereign immunity as a state agency and that the trial court erred in rendering a judgment against it based solely on the negligence finding as to Metro. TxDot argues that because the Texas Tort Claims Act ¹ ("the Act") does not specifically provide that a governmental entity may be held legally responsible for the negligence of another party, the trial court erred as a matter of law in holding TxDot liable for Metro's negligence.

Generally, units of government are immune from liability for negligence in the performance of governmental functions, except to the extent such immunity has been waived by the Act. Woomer v. City of Galveston, 765 S.W.2d 836, 838 (Tex.App.--Houston [1st Dist .] 1988, writ denied). Section 101.021 of the Act provides:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) 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 (Vernon 1997).

Section 101.021 thus waives governmental immunity from liability when property damage, personal injury, or death are proximately caused by an employee's negligence (acting within the scope of employment) if the accident arises from (1) the use or operation of a motor-driven vehicle or equipment and (2) the employee would be personally liable under Texas law. This section also waives governmental immunity from liability in the event of personal injury or death from some use or condition of real property, i.e., a "premises defect," or from some use or condition of tangible personal property.

The Act limits the duty owed by the governmental entity if the claim is based on a premise defect. Section 101.022(a) provides that, unless the claimant has paid for the use of the premises, the governmental unit owes the claimant only such duty as a private person would owe a licensee on private property. TEX.CIV.PRAC. & REM.CODE ANN. § 101.022(a) (Vernon 1997). This limitation of duty, however, does not apply to "special defects," and under section 101.022(b), it is the public entity's duty to warn of special defects such as excavations or obstructions on highways and roads, and regarding the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by section 101.060. TEX.CIV.PRAC. & REM.CODE ANN. § 101.022(b) (Vernon 1997).

TxDot contends that the Act limits its liability to the negligence of its own employees and that it could never be held responsible under the Act for the negligence of an employee of another entity. We see nothing in the Act to support TxDot's argument, and the language of section 101.021(2) seems to negate any such legislative purpose. Thus, we hold that the Act does not limit TxDot's liability to the negligence of its own employees and that, under appropriate circumstances, it could be liable for the negligence of an employee of a coventurer under the doctrine of joint enterprise.

To establish TxDot's waiver of immunity from liability, it was incumbent upon the appellees to show that under Texas law, TxDot would, if a private corporation, be legally liable to them for Metro's negligence under the doctrine of joint enterprise. TEX.CIV .PRAC. & REM.CODE ANN. § 101.021(2) (Vernon 1997); see also Smith v. University of Tex., 664 S.W.2d 180, 190 (Tex.App.--Austin 1984, writ ref'd n.r.e.). Thus, to determine whether such liability exits, we examine the appellees's pleadings and proof of a joint enterprise between TxDot and Metro regarding the operation and maintenance of the Transitways System.

The Appellees's Pleadings

In their amended petition, the appellees pleaded that TxDot, Metro, Harris County, and the City of Houston were jointly and severally liable for the maintenance of premise defects at the entrance of the HOV lanes and that the defendants had violated the duty imposed on them by section 101.022(a) of the Act. Under these pleadings, the appellees were entitled to offer proof that TxDot and Metro were engaged in a joint enterprise and that by virtue of such relationship, TxDot would, if a private corporation, be liable under Texas law to third persons who had suffered personal injury or death due to the negligence of a coventurer in the joint enterprise.

The Nature of Joint Enterprise

Under Texas law, a joint enterprise, as that term is used in the law of negligence, signifies a legal relationship between two or more parties that imposes the responsibility upon each joint adventurer for the negligent acts of the other while acting in furtherance of their common undertaking. See Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex.1974). There are four basic elements required to establish a joint enterprise: (1) an agreement among the members of the group; (2) a common purpose; (3) a community of pecuniary interest; and (4) an equal right to control the enterprise. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex.1995); Shoemaker, 513 S.W.2d at 16-17. Specifically, TxDot challenges the legal and factual sufficiency of the evidence to prove the elements of "community of pecuniary interest" and an "equal right to control the enterprise." Describing the Transitways Agreement as a "cooperative venture of two governmental agencies, a sharing of resources to provide the public good," TxDot contends there was "no financial interest at stake" and no sharing of either profits or losses.

Joint Enterprise Agreement

At trial, the appellees offered various documents, including the Transitways Agreement to prove the relationship between TxDot and Metro. As noted earlier, the Transitways Agreement recited the parties's "desire" to accomplish "uniformity and coordination" in relation to the operation and maintenance of the contemplated system of transitways, it specified the parties's respective "rights and...