State v. San Miguel

EDELMAN, Justice,

dissenting.

Although a section of the rail was missing from the elevated ramp in this case, a portion of the raised concrete curb or “parapet wall” remained and provided some protection against vehicles going over the edge of the ramp. Therefore, the primary hazard in this case was not the lack of a railing, warning, or barrier, but, instead, that the barrels, upon impact from a vehicle, flattened down to provide, in effect, a ramp for the vehicle’s wheels to roll more readily over the parapet wall, thereby eliminating whatever protective barrier the parapet wall provided. Thus, rather than merely failing to reduce or warn of the danger, the alleged effect of the barrels was to affirmatively increase it.

The State’s first point of error argues that the trial court should have submitted the case to the jury under a premises defect theory rather than a general negligence theory. A governmental unit in the State is liable for personal injury or death “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.” See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 1997). In order to establish liability for a premises defect, an invitee must show that: (1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the premises owner knew or reasonably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and (4) the owner’s failure was a proximate cause of injury to the invitee. See Dallas Mkt. Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382, 385 (Tex.1997). These elements also apply to the liability of the State for premises defects. See State v. Williams, 940 S.W.2d 583, 584 (Tex.1996); State Dep’t of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992).

In Keetch, a supermarket customer slipped and fell on a slippery area of the floor which was allegedly caused by the overspray of a product store employees sprayed on plants to make the leaves shine. See Keetch v. Kroger, Co., 845 S.W.2d 262, 263-64 (Tex.1992). On appeal, the plaintiff complained that the trial court should have submitted the case to the jury on a negligent activity theory as well as a premises defect theory. In rejecting this contention, the Texas Supreme Court said:

There was no ongoing activity when Keetch was injured. Keetch may have been injured by a condition created by the spraying but she was not injured by the activity of spraying. At some point, almost every artificial condition can be said to have been created by an activity. We decline to eliminate all distinction between premises conditions and negligent activities. The trial court properly did not submit a negligent activity theory on these facts.

Id. at 264 (emphasis added). The Court recently reiterated this distinction:

*352 This is not a negligent-activity case because Olivo alleges that he was injured by thread protectors previously left on the ground, not as a contemporaneous result of someone’s negligence. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992)(holding that recovery on a negligent activity theory requires that the plaintiff be harmed by or as a contemporaneous result of the activity itself); H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex.1992)(same). Instead, this is a premises defect case.

Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 528 , 527 (Tex.1997) (also holding that, because premises defect and negligent activity are independent theories of recovery, a simple negligence question, unaccompanied by premises defect elements as instructions or definitions, cannot support recovery in a premises defect ease).

In Henson, the appellee was injured when his vehicle struck highway barrel warning signs which were alleged to be negligently constructed with nails instead of bolts. See Texas Dep’t of Transp. v. Henson, 843 S.W.2d 648, 649-50, 652 (Tex.App.—Houston [14th Dist.] 1992, writ denied). This court determined that the jury charge was correctly submitted on a theory of negligence rather than premises defect because: (1) according to the ordinary meaning of “premises,” a “premises defect” pertains to land, buddings, and appurtenances which are permanent rather than temporary in nature; and (2) the barrel signs in that case were movable personal property which had only been temporarily placed to guide traffic through a construction area. See id. at 652-53 .

In the present ease, the majority opinion has applied the same real versus personal property distinction to conclude that the highway barrels were not a premises defect because they were movable personal property. Importantly, however, Henson and the other cases cited in the majority opinion to support this approach were decided before Keetch . As I read it, Keetch states that the choice between a negligence and premises defect charge turns solely on whether the injury results from (a) a contemporaneous human act or (b) a condition of property, regardless whether the property is real or personal.

In this case, as in Keetch , the defendant was conducting no activity at the location and time that the plaintiff was injured. Thus, although San Miguel may have been injured by a condition created by the State’s previous activity of placing the barrels, he was not injured by any contemporaneous activity by the State. Therefore, I would sustain the State’s first point of error and reverse the judgment of the trial court on this basis.

However, the remaining disposition of the case as between (a) addressing the remaining points of error and remanding the case, or (b) rendering judgment is less clear. In Clayton W. Williams, after finding that the ease should have been submitted on a premises defect rather than negligence charge, the Texas Supreme Court held that, because the plaintiffs failed to secure jury findings on their only viable cause of action, premises defect, they waived that claim and were not entitled to any relief from the defendants. See 952 S.W.2d at 530. Therefore, the Court reversed and rendered a take nothing judgment. See id.

By contrast, in Dallas Market Center, the Court similarly concluded that the liability of one defendant, DMC, should have been submitted on a theory of premises defect rather than negligence. See 958 S.W.2d at 385 . However, rather than reverse and render a take nothing judgment as to that defendant, as it had in Clayton W. Williams, the Court reversed and remanded. See id. at 387 . 1

In this case, had the trial court ruled correctly on the State’s request for a premises defect charge, San Miguel would have had an opportunity for that issue to be submitted to the jury. Because the trial court’s denial of *353 the State’s request prevented San Miguel from obtaining a jury finding on premises liability, and because I concur in the majority opinion in overruling the State’s remaining points of error, I would remand the case rather than render judgment.

. In Dallas Market Center, before addressing this issue, the opinion concluded that the case must be reversed because the jury charge on negligence erroneously held DMC to a higher standard of care than ordinary care. See 958 S.W.2d at 384-85 . However, following the rationale of Clayton W. Williams, the error in the negligence charge would have been immaterial because the plaintiff's only viable cause of action was for premises defect, and the plaintiff waived that ground of recovery by failing to secure jury findings on it.