Texas Dept. of Transp. v. Ramming

• Court: Texas Court of Appeals
• Writing for the Court: CANNON; BOWERS; ROBERTSON; Cannon's
• Citation: Texas Dept. of Transp. v. Ramming, 861 S.W.2d 460 (Tex. App. 1993)
• Decision Date: 26 August 1993
• Docket Number: No. C14-92-00228-CV,C14-92-00228-CV
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Reinhard Richard RAMMING and Mary Jane Ramming, Appellees. (14th Dist.)

Page 460

861 S.W.2d 460

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Reinhard Richard RAMMING and Mary Jane Ramming, Appellees.

No. C14-92-00228-CV.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 26, 1993.

Rehearing Denied Sept. 30, 1993.

Jeff Senter, Richard D. Naylor, Austin, for appellant.

John Milutin, Houston, for appellees.

Before ROBERTSON, CANNON and BOWERS, JJ.

OPINION

CANNON, Justice.

This is an appeal of a judgment against the Texas Department of Transportation (the "State") for negligence causing direct personal injury to Reinhard Ramming and derivative injury to his wife Mary. The State complains that (1) the jury charge lacked instructions on premises liability, (2) Mary Ramming's loss of consortium award caused the Rammings' total award to exceed the Texas Tort Claims Act liability cap, and (3) the award of prejudgment interest also caused the State's liability to exceed the statutory cap. The Rammings cross-appeal that the State waived the liability limitation of the Tort Claims Act. We affirm as modified.

On September 20, 1988, Reinhard Ramming was driving his vehicle on State Highway 332 in Lake Jackson, Brazoria County, Texas. Ramming's vehicle collided with a vehicle operated by Lisa Ann Vackar. Immediately before the collision, a State Highway Department employee had disconnected the power source of the traffic signal at the intersection and was in the process of reconnecting it when the collision occurred.

Reinhard Ramming and his wife, Mary, sued the State under the Texas Tort Claims Act. See TEX.CIV.PRAC. & REM.CODE ANN. § 101.001, et seq. (Vernon 1986 & Supp.1993). The Rammings alleged that the collision was proximately caused by the negligence of the State, its agents, servants and employees.

Finding the State negligent, the jury awarded Reinhard Ramming $1,000,000. The jury also awarded Mary Ramming $500,000 for loss of household services and consortium. Pursuant to the liability limitation provision of the Tort Claims Act, the trial court reduced the Rammings' damages to $250,000 each, plus pre- and postjudgment interest.

The State brings six points of error, the Rammings one cross-point. We address the cross-point first.

I. The Rammings' Cross-Point

The Rammings argue that the State waived any limitation of damages by not pleading the limitation set forth in the Tort Claims Act. See id. § 101.023(a). They contend that the trial court should have awarded damages of $1,000,000 to Reinhard Ramming and $500,000 to Mary Ramming plus prejudgment and postjudgment interest. The Rammings ask that we reform the judgment accordingly.

The State's first amended answer specifically declares:

[The State] ... has full sovereign immunity both from suit and from liability, save only to the extent of the partial waiver of same given by the Texas Tort Claims Act, ... and it hereby pleads and asserts its claim to and the defense of sovereign immunity and the exemptions and exclusions of the Tort Claims Act.

We find the State's answer effectively invoked § 101.023, "Limitation on Amount of Liability," of the Tort Claims Act. The State did not waive limitation of liability. We overrule the cross-point.

II. Premises Liability or Negligence?

In point of error one, the State complains that the trial court erred by submitting a jury charge based on general negligence instead of premises liability. In point two, the State argues that the trial court erred by failing to submit premises liability jury instructions. In point three, the State contends that there was no evidence or factually insufficient evidence that the State failed to warn of or failed to correct the condition or malfunction of the traffic signals within a reasonable time after notice.

The trial court has great discretion in submitting the jury charge. See Baker Marine Corp. v. Moseley, 645 S.W.2d 486, 489 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.); TEX.R.CIV.P. 277. This discretion is subject to the requirement that the questions submitted 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. Id.

Immediately prior to the accident, William Kilpatrick, a traffic signal maintenance technician employed by the State Highway Department, was at the intersection to take an amperage reading in the traffic signal control cabinet. The State Highway Department had received a memorandum from the manufacturer of the signal system about a possible problem with the surge protector. The amperage had to be measured while the signals were functioning.

When Kilpatrick attached the ammeter clamp, a main power wire dislodged causing the signals at the intersection to go out. Kilpatrick attempted several times to reconnect the wire by pushing it back up under the terminal. The wire would not stay connected because the terminal screw or set screw had to be loosened before the wire could be put back into place. Because he did not have a screwdriver to make the repair, Kilpatrick ran to the breaker box and shut off the power to the traffic signals. After shutting off the power, Kilpatrick went to his vehicle, got a screwdriver, and returned to the traffic control cabinet. The collision between Ramming and Vackar occurred while Kilpatrick was in the process of loosening the screw and reattaching the wire. Kilpatrick proceeded to reattach the wire and then ran to the breaker box to turn the signals back on. The signal lights were nonfunctional for approximately three and a half to five minutes.

The Rammings contended that the State was liable because of the negligent activities of Kilpatrick. The trial court submitted the case to the jury on one broad-form general negligence question without any of the accompanying instructions required for a premises liability case. The trial court gave the usual boiler-plate instructions and admonitions for the customary general negligence case including definitions of negligence, ordinary care, and proximate cause.

Question No. 1 asked Did the negligence, if any, of those named below proximately cause the occurrence in question?

Answer "Yes" or "No" for each of the following:

a. State Department of Highways and Public Transportation and its ______

employees.

b. Lisa Ann Vacker ______

c. Reinhard Richard Ramming ______

The State objected to the first question and requested that the issue be submitted as follows:

QUESTION NO. 1

Did the negligence, if any, of those named below proximately cause the occurrence in question?

With respect to the condition of the roadway, the State Department of Highways and Public Transportation was negligent, if you find:

a) the condition of the roadway posed an unreasonable risk of harm to a motor vehicle operator exercising ordinary care; and,

b) the State Department of Highways and Public Transportation had actual knowledge of the condition of the roadway that posed an unreasonable risk of harm; and,

c) Reinhard Richard Ramming did not have actual knowledge of the condition of the roadway that posed an unreasonable risk of harm; and,

d) The State Department of Highways and Public Transportation failed to adequately warn Reinhard Richard Ramming of the condition of the roadway or to make that condition safe, within a reasonable time after notice of the roadway condition.

Answer "Yes" or "No" for each of the following:

Reinhard Richard Ramming: ______

Lisa Ann Vackar: ______

State Department of Highways and Public Transportation: ______

The trial court refused the State's request.

The State argues that the Rammings' claims arose from a malfunctioning traffic signal and constitute a premises liability case under the Tort Claims Act. The State relies on the interrelationship between § 101.022 and § 101.060.

§ 101.022. Duty Owed: Premise and Special Defects

(a) If a claim arises from a premise defect, 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.

(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or 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.

§ 101.022 (emphasis added).

Sec. 101.060. Traffic and Road Control Devices

(a) This chapter does not apply to a claim arising from :

* * * * * *

(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;

* * * * * *

§ 101.060(a)(2) (emphasis added).

In essence, the State contends that the reference by the section entitled "Duty Owed: Premise and Special Defects" to another section dealing with "the absence, condition, or malfunction of a traffic ... signal" establishes this case as a premises liability case. We disagree.

Sections 101.022 and 101.060, read together, establish the duty owed by the State to a plaintiff who sues under a premises liability claim involving a traffic signal. However, this is not to say that a claim involving a traffic signal is always a premises liability case. The injuries suffered by Reinhard Ramming did not arise from the "absence condition, or malfunction" of a traffic signal. The signal lights were not absent or malfunctioning in the sense contemplated by § 101.060. The lights themselves had been installed and were working as designed. Section 101.060 clearly contemplates conditions and malfunctions that are not actively and contemporaneously being created by a State employee. The notice provision of § 101.060(a)(2) is meaningless in a situation, as here, where an accident occurred while a State employee was simultaneously creating the accident-causing condition or...