The opinion
REVISED
United States Court of Appeals,
Fifth Circuit.
No. 94-60449.
Jose GRACIA, et al., Plaintiffs-Appellants, Cross-Appellees,
and
Healthsouth Rehabilitation Center, Intervenor-Appellant, Cross-
Appellee,
v.
BROWNSVILLE HOUSING, et al., Defendants-Appellees,
Cross-Appellants.
Feb. 14, 1997.
Appeal from the United States District Court for the Southern
District of Texas.
Before KING, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:
This appeal arises from a terrible accident. In the summer of
1988, the Jose Gracia family was visiting Ezequiel Gracia, a
relative, who was a resident of the Victoria Gardens Housing
Project, a public housing project in Brownsville, Texas. During
the visit, four children were playing in Mr. Gracia's hammock,
which was strung between two trees near his apartment. One of the
trees, a decayed avocado tree over twenty feet high, collapsed and
fell on the children. One of Jose Gracia's children was killed and
another suffered paralysis and permanent brain damage. This case
presents the primary question, as it relates to jury instructions,
whether the Brownsville Housing Authority ("BHA") was covered under
1
the Texas Tort Claims Act at the time of the accident. The answer
to this question determines the standard of care the BHA owed to
the Gracia children.
I
Jose Gracia ("Gracia") initially filed this action in state
court seeking damages under Texas landlord/tenant principles. The
case was removed to federal court when Gracia added a claim under
42 U.S.C. § 1983. Gracia named the following defendants: the BHA;
the City of Brownsville1; Raul Trevino ("Trevino"), individually
and as Executive Director of the BHA; and Genovevo Rubalcaba
("Rubalcaba"), individually and as Superintendent of Maintenance of
the BHA.
The BHA moved for summary judgment but the district court
denied the motion. The case then went to trial and was submitted
to the jury on special interrogatories. The jury found no
liability. The court then granted a directed verdict in favor of
the individual defendants in their individual capacities and
entered judgment dismissing the complaint. Gracia's motion for a
new trial was denied.
On appeal, Gracia argues first, that, with respect to the
state law claims, the jury charge did not state the correct
standard of care; second that, with respect to the section 1983
claim, the jury instructions incorrectly conditioned consideration
of the claim upon a finding of state law negligence; and, finally,
1
The City of Brownsville settled prior to trial and was
dismissed from this action.
2
that, with respect to the individual defendants, the directed
verdict was error. The BHA filed a cross-notice of appeal
asserting that the district judge erred in denying the BHA summary
judgment on Gracia's section 1983 claim. These appeals are now
before the court.
II
A
The initial point we address is whether the first
interrogatory submitted to the jury correctly stated the applicable
standard of care owed by the BHA to the Gracia children.2
Specifically, we ask: Did the defendants' duty of care to the
visiting Gracias arise only if the defendants had actual knowledge
of the danger posed by the tree or did the duty of care arise if
the defendants had constructive knowledge of the danger, i.e., if
the defendants, by the exercise of reasonable care, should have
known of the danger. The district court instructed the jury that
the defendants must have possessed actual knowledge of the
dangerous tree in order to be held liable. Whether the district
2
The first interrogatory read:
Do you find from a preponderance of the evidence
that any of the named Defendants were negligent?
You are instructed that any of the individuals named
were negligent if:
A) The tree posed an unreasonable risk of harm; and
B) The Defendants knew of the danger; and
C) The Defendants failed to exercise ordinary care to
eliminate the danger.
3
court erred in its actual knowledge instruction depends upon
whether the Texas Tort Claims Act applied to the BHA at the time of
the accident.3
The plaintiffs argue that the BHA, at the time of this
3
The Texas Tort Claims Act provides:
§ 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.
Tex. Civ. Prac. & Rem.Code Ann. § 101.022 (West 1986). A
private person owes a licensee only the duty to refrain from
"injur[ing] a licensee by willful, wanton or grossly negligent
conduct, and [to] use ordinary care either to warn a licensee
of, or to make reasonably safe, a dangerous condition of which
the owner is aware and the licensee is not." See State Dep't
of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237
(Tex.1992) (emphasis added).
If the Act does not apply, the BHA stands in the shoes of
a private litigant. The standard of care for private persons
in the landlord/tenant context is stated in Parker v. Highland
Park, Inc., 565 S.W.2d 512, 515 (Tex.1978). In Parker, the
court held that a landlord owed the following duty with
respect to areas of leased premises that lessees were entitled
to use even though they remained in the landlord's control:
A possessor of land who leases a part thereof and
retains in his own control any other part which the
lessee is entitled to use as appurtenant to the
part leased to him, is subject to liability to his
lessee and others lawfully upon the land with the
consent of the lessee or a sublessee for physical
harm caused by a dangerous condition upon that part
of the land retained in the lessor's control, if
the lessor by the exercise of reasonable care could
have discovered the condition and the unreasonable
risk involved therein and could have made the
condition safe.
Parker, 565 S.W.2d at 515 (quoting Restatement (Second) of
Torts § 360) (emphasis added).
4
accident, did not come within the scope of the Texas Tort Claims
Act because the BHA was not a unit of government under the terms of
the statute; instead, the BHA was only a subdivision of the city,
and it performed only a proprietary—not a governmental—function.4
We do not agree.5
We first turn to examine the applicable law at the time the
accident occurred in the summer of 1988. Under the Texas Tort
Claims Act, then and now, an "institution, agency, or organ of
government the status and authority of which [is] derived from the
Constitution of Texas or from laws passed by the legislature under
the constitution" is considered a unit of government. Tex. Civ.
Prac. & Rem.Code Ann. § 101.001(2)(D) (West 1986). The statute
creating housing authorities reads, in relevant part,
(a) A housing authority is created in each municipality in the
state.
4
Under the Texas Tort Claims Act, a city is protected by the
statute only with respect to the performance of governmental
functions, not the performance of proprietary functions. Tex. Civ.
Prac. & Rem.Code Ann. § 101.0215(a) (West 1996).
5
Under current Texas law, there is no question but that the
BHA is covered under the Texas Tort Claims Act. In August 1989, a
statute was enacted specifically providing that "[f]or all
purposes, including the application of the Texas Tort Claims Act
..., a housing authority is a unit of government and the functions
of a housing authority are essential governmental functions and not
proprietary functions." Tex. Local Gov't Code Ann. § 392.006 (West
Supp.1997). Gracia argues that this statute is inapplicable
because this cause of action accrued prior to its effective date.
The BHA counters that the statute is merely a codification of
preexisting law and that the BHA has always been a unit of
government for purposes of the Texas Tort Claims Act.
Alternatively, the BHA argues that the statute applies to all
actions filed after its effective date and, therefore, applies to
this action. We find it unnecessary to address the applicability
of this statute to the present action.
5
(b) A municipal housing authority is a public body corporate
and politic.
(c) A municipal housing authority may not transact business or
exercise its powers until the governing body of the
municipality declares by resolution that there is a need for
the authority.
Tex. Local Gov't Code Ann. § 392.011 (West 1988).6 Thus, a housing
authority is created by the Texas legislature as an entity
independent of the city and thereafter, the respective city, also
through a legislative grant of power, activates the housing
authority. Applying this statute to the definition of a
governmental unit in the Act, it seems quite clear that the BHA is
an agency that derives its status and authority from an act of the
Texas legislature. It is true, of course, that this status and
authority lies dormant until the city acts. This power of the city
that activates the housing authority, however, derives from a grant
from the legislature. Thus, in every sense, it can be said that
all status and authority enjoyed by the housing authority is
derived from the Texas legislature. Consequently, the BHA is
covered under the Act.
Indeed, this appeal presents a case that is closely analogous
to Huckabay v. Irving Hosp. Auth., 879 S.W.2d 64 (Tex.App.1993).
There, the court held that the hospital authority was a unit of
government for purposes of the Tort Claims Act, because the
authority fell within the definition of "governmental unit" under
the Act. Id. at 66. See also Edinburg Hospital Authority v.
6
This statute was enacted as Acts 1987, 70th Leg. Ch. 149, §
1 and took effect on September 1, 1987. Thus, the statute was in
effect at the time of the accident at issue.
6
Trevino, No. 95-0939, 1997 Westlaw 47912 (Tex. 1997). Specifically,
the court found that the City of Irving had created the Authority
pursuant to a statute authorizing such entities and that,
therefore, the Authority was an "institution, agency or organ of
government the status and authority of which [was] derived from the
constitution of Texas or from laws passed by the legislature under
the constitution." Id. The BHA occupies a position which, in its
essence, is the same as the Hospital Authority in Huckabay.
It therefore seems indisputable that the BHA falls within the
express terms of the Texas Tort Claims Act. Because we conclude
that the BHA is entitled to the protection of the Texas Tort Claims
Act, we find that the jury interrogatory correctly stated the
standard of care owed by the BHA to the visiting Gracias.
B
As we have noted, the case was submitted to the jury on
special interrogatories. The first interrogatory, discussed above,
asked the jury whether any of the defendants were negligent. The
jury instructions then conditioned consideration of Gracia's
section 1983 claim upon a finding of negligence. Specifically, the
jury was instructed not to consider or answer any additional
interrogatories unless the first interrogatory on negligence was
answered in the affirmative.
Gracia contends that the interrogatory conditioning the jury's
consideration of the section 1983 federal claim upon a finding of
negligence under state law was erroneous. We will assume, without
deciding, that the instruction was erroneous. We nevertheless
7
conclude that, because Gracia failed to establish a prima facie
case under section 1983, any error was harmless under Federal Rule
of Civil Procedure 61.7
Gracia's section 1983 claim, in its essence, alleges that the
defendants deprived his children of a right under federal law to
have the housing project maintained in a safe condition. We reject
this basis as being insufficient to state a claim under section
1983. Indeed, we find that the Fair Housing Act and its
implementing regulations, relied upon by Gracia, do not confer on
the visiting Gracia children any enforceable rights.
We first look to the relevant portion of section 1983, which
provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects or causes to be subjected, any
citizen of the United States ... to the deprivation of any
rights ... secured by the Constitution and laws shall be
liable to the party injured in an action at law....
In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555
(1980), the Court recognized that section 1983 provided a cause of
action to redress violations of federal statutes and not solely
violations of the Constitution. No cause of action exists,
7
Federal Rule of Civil Procedure 61 reads,
No error ... or defect ... in anything done or omitted by
the court ... is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying, or
otherwise disturbing a judgment or order, unless refusal
to take such action appears to the court inconsistent
with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights
of the parties.
8
however, "where the statute in question does not "create
enforceable rights, privileges, or immunities within the meaning of
section 1983.' " Suter v. Artist M., 503 U.S. 347, 365, 112 S.Ct.
1360, 1371, 118 L.Ed.2d 1 (1992) (quoting Wright v. Roanoke Redev.
& Housing Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d
781 (1987)).
Gracia alleged a right, or rights, derived from federal
regulations enacted pursuant to the Fair Housing Act. Gracia's
argument is defective in several respects.
First, it is not clear that regulations can be considered
"laws" for purposes of creating a right actionable under section
1983. See, e.g., Wright v. Roanoke Redevelopment and Housing
Auth., 479 U.S. 418, 437-39, 107 S.Ct. 766, 778, 93 L.Ed.2d 781
(1987) (O'Connor, J., dissenting).
Second, even if regulations may create actionable rights,
there is no evidence that any of the cited regulations have been
violated by the BHA or its employees. Gracia specifically relies
upon 24 C.F.R. § 966.4. This regulation, however, only requires
that certain provisions be contained in leases entered into under
the Act. See 24 C.F.R. § 966.4 (stating "[a] lease shall be entered
into between the [public housing agency] and each tenant ... which
shall contain the provisions described hereinafter"). Although it
is true that the regulation requires that a provision be included
in the lease requiring the housing agency to maintain common areas
in a safe condition, there is no evidence that the BHA failed to
include the provision in the subject lease. See 24 C.F.R. §
9
966.4(e)(4). In fact, the lease between Ezequiel Gracia and the
BHA contained a provision that stated,
[t]he authority agrees to keep the building facilities, common
areas and grounds not otherwise assigned to the Tenant for
maintenance and upkeep, in a clean and safe condition and to
make necessary repairs to the premises.
It appears that the failure to comply with this term of the lease
may give rise to a breach of contract action in favor of Ezequiel
Gracia. This provision, however, does not give rise to a section
1983 action in favor of persons who are not even parties to the
lease.
This point brings us to a third problem with Gracia's claim
under the regulations: His children are not within the scope of
the regulations that allegedly create the federal right upon which
he relies. The Gracia children were not residents of the housing
project and so the obligations of the BHA do not run to them.
Gracia attempts to rely upon 24 C.F.R. § 966.4(d)8 to support his
claim, but that provision only requires that, with respect to use
and occupancy rights, the lease recognize the tenant's right to
make "reasonable accommodations" for his guests and does not confer
any enforceable rights upon the Gracia children.
In sum, we conclude that Gracia failed to state a prima facie
8
This regulation is titled "Tenant's right to use and
occupancy" and reads, in relevant part:
The lease shall provide that the tenant shall have the
right to exclusive use and occupancy of the leased unit
by the members of the household authorized to reside in
the unit in accordance with the lease, including
reasonable accommodation of their guests.
24 C.F.R. 966.4(d)(1).
10
case under section 1983 because he failed to demonstrate that any
act or failure to act by the BHA deprived his children of any
rights to which they were entitled under federal law. Thus, any
error that occurred as a result of the trial court's structuring of
the jury interrogatories on the section 1983 claim was harmless.
III
In conclusion, we hold that the jury was properly instructed
with respect to Gracia's state law negligence claim because the
Texas Tort Claims Act encompasses the BHA and, thus, the applicable
standard of care was set out in the jury interrogatory.
Additionally, we conclude that any error in connection with the
instructions regarding Gracia's section 1983 claim was harmless
because Gracia failed to state a viable claim under the section.9
The judgment of the district court is therefore
AFFIRMED.
DENNIS, Circuit Judge, concurring:
While I concur in the result reached by the majority, I am
troubled by the disposition of the § 1983 claim against the
authority in Section II(B) of the majority opinion. In Wright v.
City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418,
107 S.Ct. 766, 93 L.Ed.2d 781 (1987), the Supreme Court held that
9
Our holdings as to the first two issues on appeal moot
Gracia's third point of error—that the trial judge erred in
granting directed verdicts in favor of the individual defendants in
their individual capacities. Gracia failed to state a claim under
section 1983, thus, there could be no individual liability as to
that claim. The state law claims were premises liability claims,
and because neither Trevino nor Rubalcaba were possessors of the
property they owed no individual duty to the Gracia children.
11
tenants living in low-income housing projects owned by a public
housing authority, who alleged that the housing authority
overbilled them for their utilities and thereby violated a rent
ceiling imposed by the Brooke Amendment to the Housing Act of 1937
(42 U.S.C. § 1437(a)) and the implementing regulations of the
federal Department of Housing and Urban Development (HUD), have a
private cause of action under 42 U.S.C. § 1983. The Court stated:
"In our view, the benefits Congress intended to confer on tenants
are sufficiently specific and definite to qualify as enforceable
rights under Pennhurst and § 1983, rights that are not, as
respondent suggests, beyond the competence of the judiciary to
enforce." Id. at 432, 107 S.Ct. at 774-75 (footnote omitted).
I understand that we are dealing here with a different section
of the Housing Act of 1937 and a different implementing regulation,
but the Wright majority held, however, that nothing in the Housing
Act or the Brooke Amendment evidences that Congress intended to
preclude the tenants' § 1983 claims against the authority, and that
the provision in the HUD regulations for a "reasonable" allowance
for utilities was sufficiently specific and definite to qualify as
enforceable rights under Pennhurst and § 1983. I am uncomfortable
in relying partially on the Wright dissent, as the majority opinion
does, in a case under the same Act and in not closely following or
applying by analogy the Wright majority's analysis to the Act's
provisions and the HUD regulation at issue in our case. I realize
that the Supreme Court now follows a different approach and does
not easily recognize implied private causes of action under federal
12
statutes, but I do not believe we should apply the new approach to
a provision of the Housing Act and a regulation thereunder in view
of Wright.
Instead, we should hold simply that the Gracias failed to
establish a prima facie case under § 1983 because under Canton v.
Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), and
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978), no reasonable juror could have
found that the housing authority's policy makers were "deliberately
indifferent" to the safety needs of the tenants with respect to the
condition of trees on the premises. In light of the above
observations, the judgments in favor of Trevino and Rubalcaba
should be affirmed on the basis of the Texas Tort Claims Act §
101.106, lack of personal participation, and their qualified
immunity.
13