Texas Department of Transportation v. Henson

ROBERTSON, Justice,

dissenting.

With all due respect to the majority, they have construed the Texas Tort Claims Act in a way it has never before been construed, and have thereby created liability under circumstances where liability has not been provided nor immunity waived by the Act. I therefore respectfully dissent.

Appellant’s First Amended Petition, upon which trial was had, only alleged the following as actionable negligence: 1

II.

On or about September 5, 1981, the Plaintiff was driving his vehicle on the 14900 block of State Highway 288 in a northerly direction in Harris County, Texas. Plaintiff collided with barriers placed on the roadway by the named Defendants. As a result of said collision, the Plaintiff sustained serious injuries. These injuries were proximately caused by the negligence of the named Defendants. Nothing that Plaintiff did or failed to do caused, or in any way, contributed to the cause of the incident in *654 question. To the contrary, the incident and injuries suffered by the Plaintiff were the proximate result of the negligence of said Defendants. The STATE OF TEXAS was on actual notice that the barriers, which were being maintained by the STATE OF TEXAS at the time of the incident made the basis of this lawsuit, had been hit many times by motorists. As a result of the STATE OF TEXAS’ negligence, these barriers became unreasonably dangerous to the travelling public. The unreasonably dangerous condition of these barriers were the proximate and producing cause of the Plaintiff’s injuries.

III.

These acts of omission on the part of the STATE OF TEXAS, by and through its governmental unit, THE TEXAS STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, constitute actionable negligence, and the STATE OF TEXAS is therefore liable pursuant to the terms of the Texas Tort Claims Act.

While extensive special exceptions were filed by the state, the record does not reflect that the court ruled upon them.

In his charge to the jury, the court gave only the usual, boiler-plate instructions and admonitions, among which he defined negligence, ordinary care and proximate cause in the customary, general negligence case. Question No. 1 asked:

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

Answer “yes” or “no” for each of the following,

a. State Department Highways and Public Transportation. Yes.

b. Scott Hamilton Henson. No.

Question No. 2, inquired of comparative negligence and was not answered. Question No. 3 inquired of damages. There were absolutely no questions or instructions required by the Tort Claims Act.

The state objected to the first question and requested, in writing, 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 roadway condition of the premises, the State Department of Highways and Public Transportation was negligent if:

a. The roadway condition posed an unreasonable risk of harm; and,

b. The State Department of Highways and Public Transportation had actual knowledge of the danger; and,

c. Scott Hamilton Henson did not have actual knowledge of the danger; and,

d. The State Department of Highways and Public Transportation failed to adequately warn Scott Hamilton Henson of the condition of the roadway and make that condition reasonably safe.

Answer “Yes” or “No” for each of the following:

SCOTT HAMILTON HENSON

THE STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION

The trial court refused the request. Thus, this case was pled, tried, submitted to the jury and is affirmed by the majority opinion in total disregard to the requirements of the Tort Claims Act.

The most basic proposition, of course, is that unless the alleged acts of negligence bring the action within the waiver of immunity provisions of the Tort Claims Act, the action is not maintainable against the state. Since this alleged cause of action arose in 1981, prior to the recodification of the Act, all references will be to Article 6252-19, and the sections thereof, rather than the recodified version of the Act in chapter 101, Texas Civil Practice and Remedies Code.

Section 3 of the Act, which courts and commentators alike have criticized and imp *655 lored the legislature to clarify, provides, as pertaining to this case:

Each unit of government in this state shall be liable for money damages for ... personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein.... (emphasis added).

Section 4 waives immunity “to the extent such liability [is] created by Section 3.”

The first problem with the majority opinion is that it fails to address and give effect to the provision of Section 3 that “liability is subject to the exceptions contained herein.”

Appellee’s allegations of the negligent acts relied upon in his First Amended Petition could not, under any circumstances, state a cause of action as provided under Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974). We know from the evidence at trial that appellee’s theory was that the state had negligently attached, with nails rather than bolts, the chevron warning sign to a post which was in turn attached to a barrel, thereby causing the warning sign, upon impact, to dislodge from its post and crash through ap-pellee’s windshield, injuring him. Thus, there is no question that appellee’s theory was a defective highway warning sign.

Section 14 of the Act provides:

The provisions of this Act shall not apply to:

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(12) Any claim arising from the absence, condition, or malfunction of any traffic or road sign, signal, or warning device unless such absence, condition, or malfunction shall not be corrected by the governmental unit responsible within a reasonable time after notice ... (emphasis added).

This provision exempts the state from the liability appellee sought to impose, the liability the trial court imposed, and the liability the majority opinion sanctions.

In their article on governmental immunity, then Supreme Court Justice Joe R. Greenhill and Thomas V. Murto III, traced the legislative history of the Texas Tort Claims Act, in the following language:

One of the first major Texas tort claims bills was introduced by Representative DeWitt Hale in the 1953 legislature. Despite some popular support for the proposal, the Texas Municipal League and others concerned about the economic repercussions on local governments were instrumental in preventing legislative action. In 1967, Representative Hale gained additional support, and his bill passed the House. It died, however, in the Senate Committee on Jurisprudence in a tie vote. Both houses of the legislature then created interim study committees.

The bill was again introduced in 1969 under the sponsorship of Senator Oscar Mauzy and Representative Temple Dickson. After hearings by committees in both houses, the legislature appeared to be in favor of restricting immunity and passed the bill. On May 1, the Governor vetoed the bill. In his veto message, he recognized that “the time has arrived when the doctrine of absolute governmental immunity must be reconsidered. This bill, however, is so broad and all-encompassing in scope as to impose upon the taxpayers of the State of Texas an onerous burden.”

After the veto, the bill was quickly amended to conform to the Governor’s objections. Attractive nuisance claims were eliminated, and the bill provided that nonpaying claimants injured by premise defects would be considered licensees. Individual immunity of government employees was preserved in its pre-Act form, and liability for defective traffic control hazards was restricted to situations that are not corrected within a reasonable time after notice. The traffic control restriction does not apply to the duty to warn of special defects such as roadway obstructions or excavations. The modified bill was passed and *656 signed by the Governor on May 22, 1969. It became effective on January 1, 1970. The Act’s final form is the result of concessions to various groups, who received special treatment from the bill’s proponents in return for not opposing it. The river authorities were able to exempt floodgates from the motor-driven equipment coverage, and the Texas Hospital Association managed an exclusion for medical equipment. Perhaps the most significant concession was that achieved by the school districts, whose liability was limited to motor vehicles. Since the use of school premises by children is, of course, extensive, this provision creates a large exception to the Act’s general elimination of governmental immunity for premise defects.

Greenhill & Murto, Governmental Immunity, Tex.L.Rev. 462, 467-68 (1971) (emphasis added) (footnotes omitted). Thus, there can be no question that the Section 14 exemption of claims arising from the “condition of any traffic or road sign, signal, or warning device unless such ... condition ... shall not be corrected by the governmental unit responsible within a reasonable time after notice ...” was intentionally placed in the Act and it means exactly what it says. That was the foundation for this court’s conclusion in Creek v. Texas State Department of Highways and Public Transportation, 826 S.W.2d 797 (Tex.App.—Houston [14th Dist.] 1992, writ denied), and the conclusion of the court in Lawson v. Estate of McDonald, 524 S.W.2d 351, 356 (Tex.Civ.App.—Waco 1975, writ ref’d n.r.e.) that “condition” referred to in the statute was not intended to refer to the state’s original installation or its maintenance of a sign or signal. Rather, both courts held, that the term refers to the maintenance of a sign or signal in a condition sufficient to properly perform the function of traffic control and, even then, the unit of government is not liable unless it fails to correct the condition “within a reasonable time after notice.”

While the majority opinion does not actually address this issue, it appears they attempt to write around it by concluding that “appellee’s injuries arose from some condition or use of property ” as used in section 3 of the Act. Again, I disagree.

In Hein v. Harris County, 557 S.W.2d 366, 369 (Tex.Civ.App.—Houston [1st Dist.] 1977, writ ref. n.r.e.), Chief Justice Coleman, speaking for the court stated:

We do not think that the Legislature intended that there be a waiver of governmental immunity in all cases where some item of personal property is either used or not used. The injury must be proximately caused either by the negligence of an employee acting within the scope of his employment in that employee’s use of tangible property, or under circumstances where an employee or agent furnished tangible property the use of which caused the personal injury, (emphasis added).

See also LeLeaux v. Hamshire-Fannett School Dist., 835 S.W.2d 49, 51 (Tex.1992) (the phrase “arises from,” requires a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle or piece of equipment); and Beggs v. Texas Department of Mental Health and Mental Retardation, 496 S.W.2d 252, 254 (Tex.Civ.App.—San Antonio, 1973, writ ref’d) (since the Act does not define “use,” the common and ordinary definition meaning “to put or bring into action or service; to employ for or apply to a given purpose” would be applied.)

The allegedly defective barrel-signs simply do not fit within liability for “some condition or some use of tangible property” as specified in Section 3 of the Act. Rather, if the plaintiff had a cause of action, it was as a premise defect case, which brings me to the last reason for this dissent.

The majority further errs in holding that “[a]ppellant by creating the condition of the barrel-signs is deemed to have actual notice of the defect.” First, Section 14(12) requires notice be given to the state of the defective condition of road signs. Second, in Keetch v. The Kroger Company, 845 S.W.2d 262, 265 , (Tex.1992) the supreme court held as “incorrect” the argument that if the owner of the premises “created the *657 condition ... [it] is charged with knowledge of the condition as a matter of law.” Here, the state denied that the barrel-signs were defective; therefore “the inference of knowledge could not be made as a matter of law.” Keetch, at 265.

Appellee tried the case as a general negligence case and the state defended upon the basis, that if anything, it was a premise defect case. As stated above, the state objected to submission of the case on principles of general negligence and requested that the jury be instructed that the state was negligent if (1) the roadway condition posed an unreasonable risk of harm, and (2) the State Department of Highways and Public Transportation had actual knowledge of the danger, and (3) Scott Hamilton Henson did not have actual knowledge of the danger, and (4) the State Department of Highways and Public Transportation failed to adequately warn Scott Hamilton Henson of the condition of the roadway and make that condition reasonably safe. The trial court overruled the requested instructions and gave the jury a charge, discussed above, that only asked two liability questions and gave no instructions under the Act.

In State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 237 , (Tex.1992), the supreme court stated that in order to recover for an ordinary premise defect (not a special defect), the claimant must prove: (1) a condition of the premises created an unreasonable risk of harm; (2) the owner actually knew of the condition; (3) the licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; and (5) the owner’s failure was a proximate cause of injury. The trial court in Payne asked the jury the two identical liability questions asked here by the trial court. While the trial court in Payne gave some additional instructions concerning governmental liability, duty owed and dangerous condition (none of which were given here by the trial court), the charge there did not “request the jury to find whether Payne knew of the location of the culvert at the time of the accident,” and the state, in writing, requested the trial court to so inquire of the jury. Payne, 838 S.W.2d at 238 .

The supreme court held that the refusal of the trial court to make the requested inquiry constituted a clear refusal to submit a premise defect theory to the jury. The court said:

Payne was not entitled to recover on his special defect theory as a matter of law. To prevail on his premise defect theory, Payne was required to obtain a finding that he lacked knowledge of the culvert. This element of his claim was not included in the broad-form charge which the trial court submitted to the jury. A finding on this one element cannot be deemed in Payne’s favor because the State objected to the omission by requesting a jury question on that issue. Tex.R.Civ.P. 279; Morris [v. Holt ], 714 S.W.2d 311, 312-13 (Tex.1986). Thus, the verdict does not support a judgment in Payne’s favor.

Accordingly, the judgment of the court of appeals is reversed, and judgment is rendered that Payne take nothing.

Id. 838 S.W.2d at 241 at 1201-02 (footnote omitted). At least so far as the absence of a finding that Henson lacked knowledge of the defective sign, the identical question is presented by this record. 2 He is precluded from recovering on a premise defect theory. Since the state objected to the omission by requesting a jury question on that issue, a finding on this one element cannot be deemed in Henson’s favor.

Accordingly, the judgment should be reversed and rendered that Henson take nothing. Because the majority holds otherwise, I dissent.

. Named as other defendants in the lawsuit were T.L. James & Co., Inc., J.W. McKinney [sic] and MICA Corporation. The claims against these non-governmental defendants were dismissed prior to trial.

. Of course the error is further compounded here because there is no finding that the state actually knew of the condition. A discussion of that issue is, however, unnecessary.