Opinion

NUMBER 13-98-499-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

CHARLENE MILLS BROWN, ET AL.,

Appellants,

v.

TEXAS DEPARTMENT OF TRANSPORTATION

AND CAMERON COUNTY, Appellees.

___________________________________________________________________

On appeal from the 197th District Court

of Cameron County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Yañez and

Chavez

Opinion by Justice Yañez

In this interlocutory appeal, appellants challenge the trial court's

dismissal of their claims against appellees, Cameron County (the

County) and the Texas Department of Transportation (Tx DOT), on the

basis that the claims are barred by sovereign immunity. We reverse.

This case resulted from an auto accident which occurred on the

Queen Isabella Causeway (the Causeway), which links South Padre

Island and the South Texas mainland. On September 14, 1996, at

approximately 3:00 a.m., Nolan Brown lost control of his truck as he

crossed the Causeway and collided with the concrete barrier that

divides the east-bound and west-bound lanes. Brown's truck

eventually came to rest on its side. The passenger in the truck, Jeff

Farrington, apparently exited through the sunroof. As Brown was

exiting, another vehicle, driven by Muncio Martinez, collided with

Brown's truck. Brown was killed in the collision. At the time of the

accident, forty-five of the one-hundred and twenty-one lights which are

intended to light the Causeway were not functioning due to a number

of problems brought on by age and corrosion.

Brown's survivors brought suit against Martinez, the County, Tx

DOT and the contractor employed by the County to maintain the

Causeway lights. The County and Tx DOT filed pleas to the jurisdiction,

arguing that governmental immunity barred appellants' action against

them. The trial court dismissed the claims against the County and Tx

DOT and ordered the claims severed from the remaining causes of

action. Appellants appeal from this dismissal.

Governmental entities are immune from liability except where the

legislature has waived that immunity. See Tex. Civ. Prac. & Rem. Code

Ann. §§101.021 , 101.025 (Vernon 1997). Unless the government has

waived immunity, the trial court lacks subject matter jurisdiction. City

of Austin v. L.S. Ranch, Ltd. , 970 S.W.2d 750, 752 (Tex. App.--Austin

1998, no pet.). Immunity is waived where the government owes a duty

of care. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 , 101.025

(Vernon 1997); see also, Morse v. State, 905 S.W.2d 470, 474 (Tex.

App.--Beaumont 1995, no writ). A governmental entity remains

immune from liability for injuries sustained as a result of a discretionary

act. Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 1997). If the

performance or non-performance of an act is left to the consideration of

the government, it is a discretionary act. Id. The immunity covering

discretionary acts applies even where the government has acted

negligently in making its decision. See Stanford v. State, 635 S.W.2d

581, 582 (Tex. App.--Dallas 1982, writ ref'd. n.r.e.). The installation of

roadway safety devices is discretionary. See id. Therefore, sovereign

immunity precludes a plaintiff from alleging misfeasance on the part of

the government in failing to install certain safety features, such as guard

rails or stop signs. See id.; see also, Miller v. City of Fort Worth, 893

S.W.2d 27, 33 (Tex. App.--Fort Worth 1994, pet. dism'd by agr.) .

Design v. Maintenance

Although the installation of safety devices is discretionary and

immune, governmental immunity is waived for decisions involving

structural maintenance. City of Fort Worth v. Gay , 977 S.W.2d 814,

817 (Tex. App.--Fort Worth 1998, no pet.). "Maintenance activities

undertaken at the operational level are not discretionary functions and

are not immune from liability." Id. Maintenance is the continuing

implementation of a previous policy decision and therefore is non-discretionary. McClure v. Reed , 997 S.W.2d 753, 756 (Tex. App.--Tyler

1999, no pet.). Immunity is waived where maintenance is necessary to

keep the roads free of unreasonably dangerous premises defects . See

Gay, 977 S.W.2d at 817 . Consequently, there is a duty to repair

premises defects that pose an unreasonable risk of harm to travelers.

See Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (Vernon 1997).

"Maintenance" is most clearly distinguished from "design" in that

maintenance refers to the preservation of existing infrastructure. See

Garza v. State, 878 S.W.2d 671, 675 (Tex. App.--Corpus Christi 1994,

no writ)(finding that maintenance involves the preservation of existing

conditions); see also Siders v. State , 970 S.W.2d 189, 193 (Tex. App.--Dallas 1998, pet. denied) (finding duty to maintain highway as

designed). In the instant case, because the government installed road

lights, maintenance of those lights is not discretionary. See G ay, 977

S.W.2d at 817 . The State chose to light the Causeway and having done

so, assumed a duty to maintain the lights. (1)

Appellants argue that the absence of lighting on the Causeway

constituted a premises defect, which was the proximate cause of Brown's

death. The absence of lighting resulted from non-functioning lights on the

existing roadway lamps, and thus was not the result of faulty design, but

rather, the failure to maintain the existing lights.

Government Liability for Premises Defect

We must next determine whether or not the failure of a block of

lights, arising from a lack of maintenance, is sufficient to establish a

premises defect in this case. "Premises" includes the [structure], parts

and appurtenances. Billstrom v. Memorial Med. Ctr. , 598 S.W.2d 642,

646 (Tex. App.--Corpus Christi 1980, no writ). "Defect" means an

imperfection, shortcoming or want of something necessary for completion.

See id. at 646 . In the instant case, the Causeway and its appurtenances

constitute the premises, and the faulty light fixtures constitute the defect.

To establish governmental liability for premise defects, a plaintiff

must plead and prove that: (1) the condition is unreasonably dangerous;

(2) the government had knowledge of the defect and did not repair or warn

of the defect after a reasonable amount of time; (3) the injured party did

not have prior knowledge of the defect; and (4) the defect was the

proximate cause of the injured party's harm. See State Dept. of Highways

& Transp. v . Payne , 838 S.W.2d 235, 237 (Tex. 1992). We look to the

appellants' petition to determine if it sufficiently pleads facts which, if

taken as true, will support jurisdiction. Texas Ass'n of Bus. v. Texas Air

Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). Allegations asserted in the

pleadings are taken as true and construed in favor of the pleader. City of

El Campo v. Rubio , 980 S.W.2d 943, 945 (Tex. App--Corpus Christi, 1998,

no pet.)(quoting Texas Ass'n of Bus. , 852 S.W.2d at 446 ).

Appellants asserted in their petition that the premises defect on the

bridge created an unreasonably dangerous condition of which both Tx

DOT and the County were aware, and that the condition proximately

caused Brown's death. While appellants do not explicitly state that Brown

lacked prior knowledge of the malfunctioning lights, such lack of

knowledge is implicit from a total reading of the pleadings. See Cartwright

v. MBank Corpus Christi, N.A. , 865 S.W.2d 546, 551 (Tex. App.--1993,

pet. denied)(holding that pleadings shall be construed to do substantial

justice).

To establish the scope of the unreasonably dangerous condition, we

address the particular characteristics and properties of the Causeway. The

Causeway is narrow. There are two travel lanes in each direction,

separated by a cement median barrier. The bridge rises to a level of one-hundred and nine feet above the bay. There is only a narrow shoulder

alongside the traffic lanes. By its nature, the Causeway lacks adjoining

space for accommodating vehicles or passengers in emergency situations.

If an accident occurs on the bridge, there is little room to avoid the

accident. Cars must either maintain their course or swerve onto the

narrow shoulder between the driving lanes and the guardrail at the edge

of the Causeway. The driver's options are limited by the constrictive

nature of the roadway. Given the restricted options a driver has in such

circumstances, the Causeway is more dangerous than an ordinary road

when improperly lit. Presumably, the State took such factors into

consideration when designing the Causeway and deciding to install the

roadway lights.

Appellants alleged that, although the first part of the Causeway was

lit, the lights at the accident site were not functioning. Sporadic lighting

is arguably more dangerous to the average motorist than total darkness,

due to the element of surprise. We find that the unexpected absence of

lighting on the Causeway created an unreasonably dangerous condition.

Tx DOT and the County had actual knowledge of the hazardous

condition and failed to either warn drivers or remedy the condition in a

timely fashion. The record reflects that letters addressing the condition of

the road lights were periodically exchanged between various officials over

the course of the year preceding the accident. On November 9, 1995,

Cameron County Park System Director, Kenneth Conway, wrote to Tx

DOT's District Engineer, Amadeo Saenz, about "the numerous lights that

were out and the serious safety hazard this presents." Conway further

wrote that Tx DOT "said they would do the repairs last week. Still no

repairs have been done." The State and County knew of the serious risk

to public safety posed by the faulty lights almost a full year before the

accident that gave rise to this case.

We find that the first two elements of governmental liability are

satisfied. The absence of lighting on the Causeway created an

unreasonably dangerous condition of which Tx DOT and the County had

actual knowledge, yet failed to make safe.

Appellants further alleged that the Causeway lights were functioning

on the mainland side, and that the lights did not fail completely until

further along the bridge's span. Once a vehicle starts across the bridge,

it is seemingly impossible to turn back: a cement median separates the

highway. Brown was presumably unaware of the defective lighting until

he was plunged into darkness at the Eastern end of the bridge. Upon

entering the lighted Causeway, a motorist would reasonably expect it to

be lit over its entire length. A darkened patch along the roadway presents

an unexpected change in conditions resulting in surprise to the average

traveler.

The final requirement necessary to establish a premise defect is

proximate causation. Proximate cause requires a showing of both cause-in-fact and forseeability. See Union Pump Co. v. Allbritton , 898 S.W.2d

773, 775 (Tex. 1995); see also Wal-Mart Stores, Inc. v. Sholl, 990 S.W.2d

412, 416 (Tex. App.--Corpus Christi 1999, no pet.).

Cause-in-fact requires a showing that the defect was a substantial

factor in bringing about Brown's injuries. See Sholl, 990 S.W.2d at 417 .

Common sense dictates that Brown's chance of survival would have been

substantially greater had his damaged vehicle been clearly visible. While

headlights generally provide adequate light for typical nighttime driving,

they serve to illuminate only a small section of the road immediately

ahead. In the instant case, had the road been well-lit, Martinez would

have had a greater opportunity to see the accident and take appropriate

action. The abrupt darkness deprived him of any opportunity to make the

necessary adjustments to nighttime driving. Instead, Martinez was likely

unable to see the obstacle until he was upon it. Had the roadway been lit

in accordance with his expectations, he likely could have avoided Brown's

vehicle. An incident is foreseeable where the injury is "of the type that

might reasonably have been anticipated." Sholl, 990 S.W.2d at 417 (citing

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 551 (Tex.

1985)). The government should have been aware that the unlit Causeway

created an unreasonably dangerous situation. As discussed, the

conditions on the Causeway created an environment in which accidents

were more likely to occur. It was foreseeable that the Causeway's

defective lighting could result in an accident. The decision to install the

designated number of lights shows that the State realized the need for

adequate illumination for safety purposes. Correspondence between Tx

DOT and Cameron County officials indicates that both parties realized the

conditions presented a safety threat. An evaluation dated October 20,

1995, from the contracted maintenance crew to Conway details the

company's inspection of the roadway lighting system. The memo states,

in part, that there was "extreme hazard due to the aged wire and

connections." Moreover, a letter from Conway acknowledged the

defective lights were a "serious public safety issue."

We hold that the evidence establishes a premises defect for which

there is a duty to warn or make safe. (2) We therefore conclude sovereign

immunity was waived in this case, and that the trial court has jurisdiction

over this suit. We reverse the judgment of the trial court and remand for

further proceedings in accordance with this opinion.

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LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 17 th day of August, 2000.

1. On September 5, 1979, the State entered into a construction and

maintenance contract with Cameron County, concerning the respective

responsibilities of the State and the County for the operation and repair of the

Causeway lights. Assignment of liability under the contract was not addressed by the

trial court, nor was it raised on appeal. Therefore, we do not reach the issue of

whether liability rests with the State, the County, or both.

2. As noted, we express no opinion as to the assignment of liability as between

Tx DOT, the County, or others.