Appendix — Gracia v. Trevino

:

ui

i

%

]

3

3

@

:

la

Jose GRACIA, et al., Plaintiffs-

Appellants, Cross-

Appellees,

and

Healthsouth Rehabilitation Center,

Intervenor-Appellant, Cross-

Appellee,

we

- BROWNSVILLE HOUSING, et

al., Defendants-Appellees,

Cross-Appellants.

No. 94-60449.

United States Court of Appeals,

Fifth Circuit.

Feb. 14, 1997.

Parent of children visiting housing project sued city,

housing authority, and housing authority officials after

decayed tree fell on children, alleging negligence and

§ 1983 claims. The United States District Court for the

Southern District of Texas, Filemon B. Vela, J., entered

judgment for defendants. Parent appealed. The Court of

Appeals held that: (1) housing authority was covered by

Texas Tort Claims Act, and (2) Fair Housing Act and its

implementing regulations did not confer on children any

enforceable rights that could form basis of § 1983 claim.

Affirmed.

Dennis, Circuit Judge, filed a concurring opinion.

Fred L. Streck, III, Dwain Dent, Dent Lawfirm, Fort

Worth, TX, Denning Schattman, Fort Worth, TX, J. Stewart

2a

Bass, Dent Lawfirm, Harlingen, TX, Robert Haslam, Dent

Lawfirm, Fort Worth, TX, Art Brender, Fort Worth, TX,

Joseph Anthony Rodriguez, Rodriguez, Colvin & Chaney,

Brownsville, TX, for Gracia.

Thomas Daniel Hollaway, Sullins, Johnson,

Rohrbach, Magers & Herbert, Houston, TX, for Health-

south.

Roger W. Hughes, Georgina M. Benavides, Craig H.

Vittitoe, Patricia Kelly, Adams & Graham, Harlingen, TX,

for Brownsville Housing.

Robert Lawrence Guerra, Thornton, Summers,

Biechlin, Dunham & Brown, Inc., McAllen, TX, Roger W.

Hughes, Adams & Graham, Harlingen, TX, for Raul Trev-

ino and G. Rubalcaba.

W. Michael Fisher, Brownsville, TX, for City of

Brownsville.

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 Eze-

quiel 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

3a

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 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

Brownsville!; Raul Trevino (“Trevino”), individually and

as Executive Director of the BHA; and Genovevo

Rubalcaba (“Rubalcaba”), individually and as Superin-

tendent of Maintenance of the BHA.

The BHA moved for summary judgment but the dis-

trict 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 dismiss-

ing 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

1 The City of Brownsville settled prior to trial and was

dismissed from this action.

————————————————— a

4a

correct standard of care; second that, with respect to the

section 1983 claim, the jury instructions incorrectly condi-

tioned consideration of the claim upon a finding of state

law negligence; and, finally, 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 judg-

ment on Gracia’s section 1983 claim. These appeals are

now before the court.

I]

A

The initial point we address is whether the first inter-

rogatory submitted to the jury correctly stated the appli-

cable standard of care owed by the BHA to the Gracia

children.? 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 construc-

tive knowledge of the danger, i.e., if the defendants, by

the exercise of reasonable care, should have known of the

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.

a A nail ee, PA BE

5a

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 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 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

6a

The plaintiffs argue that the BHA, at the time of this

accident, did not come within the scope of the Texas Tort

Claims Act because the BHA was not a unit of govern-

ment 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.* We do not

agree.°

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,

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).

* 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).

> 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.

7a

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 constitu-

tion” is considered a unit of government. Tex. Civ. Prac.

& Rem.Code Ann. § 101.001(2)(D) (West 1986). The stat-

ute creating housing authorities reads, in relevant part,

(a) A housing authority is created in each

municipality in the state.

(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).° 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

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.

iat

8a

authority is derived from the Texas legislature. Conse-

quently, 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. Trevino, No. 95-0939,

1997 WL 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, dis-

cussed above, asked the jury whether any of the defen-

dants were negligent. The jury instructions then

conditioned consideration of Gracia’s section 1983 claim

ee, eee eee

9a

upon a finding of negeligence. Specifically, the jury was

instructed not to consiGder or answer any additional inter-

rogatories unless the | first interrogatory on negligence

was answered in the aaffirmative.

Gracia contends thhat the interrogatory conditioning

the jury’s considerationn of the section 1983 federal claim

upon a finding of neglligence under state law was erro-

neous. We will assunme, without deciding, that the

instruction was erronmeous. We nevertheless conclude

that, because Gracia faiiled to establish a prima facie case

under section 1983, anyy error was harmless under Federal

Rule of Civil Procedurire 61.7

Gracia’s section 19883 claim, in its essence, alleges that

the defendants deprivwed his children of a right under

federal law to have thae housing project maintained in a

safe condition. We rejecct this basis as being insufficient to

state a claim under secttion 1983. Indeed, we find that the

Fair Housing Act and itits implementing regulations, relied

upon by Gracia, do nnot confer on the visiting Gracia

children any enforceabble rights.

7 Federal Rule of Civvil Procedure 61 reads,

No error... or defecict . . . in anything done or omitted

by the court . . . is gground for granting a new trial or

for setting aside a veerdict or for vacating, modifying,

or otherwise disturbbing a judgment or order, unless

refusal to take succh 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 e proceeding which does not affect

the substantial rightsts of the parties.

10a

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 pro-

vided a cause of action to redress violations of federal

statutes and not solely violations of the Constitution. No

cause of action exists, 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).

lla

Second, even if regulations may create actionable

rights, there is no evidence that any of the cited regula-

tions have been violated by the BHA or its employees.

Gracia specifically relies upon 24 CER. § 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 hereinaf-

ter”). 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.ER. § 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 facili-

ties, 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

12a

attempts to rely upon 24 C.F.R. § 966.4(d)® 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 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 regard-

ing Gracia’s section 1983 claim was harmless because

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).

ee

13a

Gracia failed to state a viable claim under the section.?

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 tenants living in low-

income housing Projects owned by a public housing

authority, who alleged that the housing authority over-

billed them for their utilities and thereby violated a rent

ceiling imposed by the Brooke Amendment to the Hous-

ing Act of 1937 (42 U.S.C. § 1437(a)) and the implement-

ing 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 enforce-

able rights under Pennhurst and § 1983, rights that are

not, as respondent suggests, beyond the competence of

? 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 6wed no individual duty to the

Gracia children.

14a

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 imple-

menting regulation, but the Wright majority held, how-

ever, that nothing in the Housing Act or the Brooke

Amendment evidences that Congress intended to pre-

clude the tenants’ § 1983 claims against the authority, and

that the provision in the HUD regulations for a “reason-

able” allowance for utilities was sufficiently specific and

definite to qualify as enforceable rights under Pennhurst

and § 1983. Iam 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 apply-

ing 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 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

15a

Trevino and Rubalcaba should be affirmed on the basis of

the Texas Tort Claims Act § 101.106,

lack of personal

participation, and their qualified immu

nity.