Opinion
NUMBER 13-17-00243-CV
08-30-2018
MARIA CAMARENA, Appellant, v. CITY OF WESLACO, Appellee.
On appeal from the 332nd District Court of Hidalgo County, Texas.
DISSENTING MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Dissenting Memorandum Opinion by Chief Justice Valdez
I respectfully dissent to the majority's opinion for the reasons set forth below.
As the facts and standard of review have been set out by the majority, I will not recite them again. Moreover, because I would reverse the judgment and remand this cause, I will address all of Camarena's issues out of order for purposes of my analysis.
I. NON-OWNERSHIP AND NON-POSSESSION OF PREMISES
The City argued in its plea to the jurisdiction that it had no ownership and no possessory rights in the area where the canal was located. By her second issue, Camarena contends that "there is no law to support the contention that the City's immunity is not waived for injuries taking place on another entity's property."
"A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them." City of Fort Worth v. Lee, 186 S.W.2d 954, 957 (1945) overruled on other grounds by Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981). In City of Fort Worth, the Texas Supreme Court concluded that the city negligently caused an accident involving a boy riding his bike. 186 S.W.2d at 559. The boy rode his bike on 30th Street and at the end of the road, he fell into an excavated cut that was located on property belonging to the railroad company. Id. The Court concluded that the railroad company had no duty to warn others of the excavated cut because the city built the roadway after the excavated cut had been there for many years. Id. The court explained that the railroad company did not cause the roadway to be built in the location of the excavated cut and that the boy was "there because a street, opened in 1907 and taken over the city in 1922 was being maintained by the city for use by the traveling public." Id. The court stated that when the city "took over the addition the city became charged with the duty to keep its streets in a reasonably safe condition for travelers. . . ." Id. Ultimately, the court determined that it was up to the jury to decide whether the city owed a duty to warn, even though the city did not own the property where the accident occurred, the excavated cut. See id.; see also Barrera v. City of Garland, 776 S.W.2d 652, 656 (Tex. App.—Dallas 1989, writ denied) ("When a city fails to erect a barricade to protect motorists from ditches at the end of the road the city is held liable for negligently failing to perform a proprietary function.") (citing City of Pasadena v. Freeman, 731 S.W.2d 590 (Tex. App.—Houston [14th Dist.] 1987, no writ) (motorist drove into unprotected drainage ditch at end of dead end street)).
The lower court, which the Texas Supreme Court affirmed, stated that the evidence raised jury issues as to the negligence of the city and that there was no liability on the part of the railroad. City of Fort Worth v. Lee, 182 S.W.2d 831, 836 (Tex. Civ. App.—Fort Worth 1944), aff'd, 143 Tex. 551, 186 S.W.2d 954 (Tex. 1945) ("If the City chose to maintain a street in a dangerous location, the railroad could not prevent it. If a duty rested upon anyone to protect travelers from dangers resulting from the manner in which the street was laid out or maintained, it was not upon the railroad.").
Camarena argues that here, the canal existed before the road, and the city was responsible to maintain the road; therefore, under Fort Worth, the City owed a duty to warn of the danger even if the City did not own the property where the canal was located. I agree with Camarena that the caselaw supports a conclusion that the City's immunity is not waived simply because it did not own the canal. See City of McAllen v. De La Garza, 898 S.W.2d 809, 810 (Tex. 1995) ("Our Court[, in Fort Worth] relied upon section 368 of the Restatement (First) of Torts in holding that the entity charged with the responsibility for maintaining a roadway, rather than an adjacent landowner, owes a duty to a third party injured by a dangerous condition on adjoining land if the condition was in existence at the time the highway was created.") (emphasis added)). Therefore, to the extent that the trial court granted the plea to the jurisdiction for this reason, I would conclude that it was error. I would sustain Camarena's second issue.
II. SPECIAL DEFECT
In its plea to the jurisdiction, the City also argued that the drainage canal is neither a special defect nor a premises defect. By her fourth issue and in her response to the City's plea to the jurisdiction, Camarena contends that the canal immediately adjacent to the end of the roadway is a special defect as a matter of law and that under the close proximity rule, the City is liable for failure to warn of a special defect even though the City was not the owner of the canal.
Special defects include excavations or obstructions on highways, roads, or streets. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b). "A special defect is a condition of the same kind or class as 'excavations or obstructions on highways, roads, or streets' that unexpectedly and physically impairs a vehicle's ability to travel on the roadway, thus presenting 'an unusual and unexpected danger to ordinary users of roadways.'" Harris Cty. v. Estate of Ciccia, 125 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). The governmental unit need not have created the special defect. Id. at 753 (citing Cty. of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)). In addition, the excavation or obstruction need not occur on the road's surface to constitute a special defect if it is close enough to the roadway to create a threat to normal users of the roadway. Id. "When a special defect exists, the government unit owes the same duty to users that a private landowner owes to an invitee. That is, the governmental unit must exercise ordinary care to protect the user from a dangerous condition of which the government unit is or reasonably should be aware." Id. We determine whether a condition is a special defect as a matter of law. Id.
Camarena claims that she was not able to distinguish the end of the roadway from the canal because the canal is perpendicular to the roadway and the road ends abruptly. Therefore, Camarena argues that the canal is a special defect as a matter of law because it constitutes an excavation that caused an unexpected danger to ordinary users. Camarena cites Estate of Ciccia, wherein the First District Court of Appeals held that a culvert located beyond the end of the road and onto which a "right turn only" lane directed traffic satisfied the definition of a special defect "as a condition of the same kind or class as an excavation or obstruction that unexpectedly and physically impaired the Ciccias' car's ability to travel on the roadway." Id. The Estate of Ciccia court cited City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex. Civ. App.—Houston [1st Dist.] 1974 writ. ref'd n.r.e.), which held that "a street which suddenly stopped only four feet from a six-foot ditch and with only a 150 to 250-watt bulb lighting the area constituted a dangerous condition, and that the City was negligent in its failure to warn or protect travelers against such danger." Estate of Ciccia, 125 S.W.3d at 755 (quoting and citing Jean, 517 S.W.2d at 599).
The City disputes Camarena's claim that she could not stop.
The City responds that the drainage canal is not a special defect because it is an off-road obstruction, which does not affect normal traffic. In addition, the City argues that if a danger is open and obvious like the drainage canal here, there is no special defect.
In Jean, a driver had taken a different route home and when she crossed an intersection of two streets, she drove into a ditch. 517 S.W.2d at 598. A police officer testified that the street that the driver was on, Elm Street, "dead ends into Alder Street at a 'T' intersection and that a 6-foot deep ditch runs parallel with and about four feet distant from the east line of Alder Street." Id. According to the police officer, the weather was clear and "[t]here were no signs indicating that Elm was a dead[-]end street and the only lighting at the location was a 'small light approximately 25-30 feet up the roadway.'" Id. at 599 (internal quotations omitted). The court held that the ditch was a special defect and that the city had a duty to warn of said special defect. Id.
The facts in this case are very similar to those in Jean, which the Texas Supreme Court has recognized as an example of a case holding that "conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road." State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Here, the evidence shows that Camarena mistakenly turned onto Northcross Avenue, went over a "hump" and "immediately" felt a "hard impact" when she landed in the canal. Camarena stated in her affidavit that she was "shocked" when she was injured as "at no point in time did [she] see any warning signs, [] reflectors, or barricades to alert [her] that there was a dead end ahead of [her]." According to Camarena, once her car landed in the canal, she "couldn't see anything." Camarena attached pictures of Northcross Avenue to her response to the City's plea to the jurisdiction. These pictures, which were taken during the day while not raining, show that Northcross Avenue ends in a dead end. The pictures show that once the pavement ends, there is what appears to be a dirt road covered in vegetation, which leads straight to the canal. It is difficult to determine exactly where the pavement ends and the dirt road begins. The dirt road runs perpendicular to Northcross Avenue, and the dirt road appears worn due to traffic of some sort. Just like the plaintiff in Jean, Camarena was traveling on a paved road that is difficult to distinguish from the dirt road even during daylight on a street that suddenly stops without warning not very far from the canal, with little lighting to assist her. See 517 S.W.2d at 598. Accordingly, I would conclude that the area constituted a dangerous condition constituting a special defect as it presented an unusual and unexpected danger to ordinary users of the roadway. See Estate of Ciccia, 125 S.W.3d at 754. Accordingly, I would conclude that the trial court erred to the extent it granted the City's plea to the jurisdiction on the basis that the canal was not a special defect. I would sustain Camarena's fourth issue.
I acknowledge that at oral argument when asked if there was a curb, appellant's appellate counsel responded that there was a curb that was covered by vegetation.
However, in its plea to the jurisdiction, the City argued that Camarena was not in the ordinary course of travel because she chose to drive in bad weather. The City neither mentioned that Camarena drove over a concrete curb nor provided evidence conclusively establishing that Camarena drove over a concrete curb.
Moreover, in its plea to the jurisdiction, the City stated that Camarena "deviated from the paved road on Northcross Ave by passing over an open area of grass, and ultimately driving into a drainage canal." (emphasis added). Thus, according to the City, when Camarena deviated from the paved road, she passed over an open area of grass. Therefore, there is a question of fact regarding whether Camarena drove over a curb, over an open area of grass, or over a curb covered with vegetation.
I believe that the facts in this case are distinguishable from the facts in Texas Department of Transportation v. Perches, wherein the Supreme Court of Texas concluded that a guardrail was not a special defect because "the concrete guardrail became an impediment only when" the driver "missed his turn and proceeded off the road." 388 S.W.3d 652, 656 (Tex. 2012) (per curiam). The court reasoned that had the driver "made the turn in accordance with the roadway's design, he would never have come into contact with the guardrail." Id. Here, there is a question of fact regarding whether Camarena used reasonable care and acted as an ordinary user when she deviated off of the road and careened into the canal. See id.
The City argued, without citation to authority, in its plea to the jurisdiction and argues in its brief that the canal could not constitute a special defect because it had been in existence for many years and was a large permanent feature. I have found no authority supporting such a conclusion. The City further argued that the canal is not a special defect because it existed prior to when Northcross Avenue was built. However, City of Fort Worth v. Lee shatters this argument because, in that case, the Texas Supreme Court premised its holding that the city was liable on the fact that the excavation had occurred prior to the roadway. 186 S.W.2d at 957. Accordingly, I am not persuaded by this argument.
II. DRIVING WITH REASONABLE CARE IN THE ORDINARY COURSE OF TRAVEL
Next, in its plea to the jurisdiction, the City argued that "[e]ven assuming arguendo, that the City owned or controlled the canal, the City would still not be liable as it owed no duty to [Camarena] because she was not traveling with reasonable care nor was she in the ordinary course of travel." See Military Highway Water Supply Corp. v. Morin, 156 S.W.3d 569, 570 (Tex. 2005) (explaining that pursuant to section 368 of the Restatement (First and Second) of Torts the City does not owe a legal duty to a driver who is not traveling with reasonable care upon the highway and that a driver's deviation from the road is not in the ordinary course of travel if the deviation is not foreseeable) (citing City of McAllen, 898 S.W.2d at 810). Specifically, the City claimed that Camarena admitted that the weather was so poor, she could not continue driving safely. By her third issue, Camarena contends that she presented more than a scintilla of evidence that her decision to continue driving despite the weather conditions leads to at least a fact question that she was driving with reasonable care and that leaving the roadway was a foreseeable deviation in the ordinary course of travel.
Here, Camarena cites evidence that she is an experienced police officer who made the conscious decision to continue driving in a reasonable prudent manner and that she determined that it was safer to continue driving rather than to stop due to the risk of being hit by inexperienced driver. Camarena argues that this evidence creates a fact question for the jury to determine on whether she drove with reasonable care. The City responds that Camarena admitted that she "made a conscious decision to drive during very dangerous weather conditions," which "were purportedly so dangerous that she was afraid if she stopped other users of the road would not be able to avoid colliding with her."
Camarena's statement that she determined based on her experience as a police officer that it was safer to continue driving in the stormy weather than to stop creates a question of fact. This is more than a scintilla of evidence which enables reasonable minds to differ in determining whether Camarena should have continued driving during the storm and whether she was driving with reasonable care.
As to whether Camarena's deviation was in the ordinary course of travel, I note that in its plea to the jurisdiction, the City merely argued as follows: "By voluntarily continuing to drive during the storm, [Camarena] was no longer operating her vehicle with reasonable care and the subsequent act of traveling past the end of the paved road was not an ordinary course of travel." See RESTATEMENT (SECOND) OF TORTS § 368 (defining the circumstances under which a duty is owed to an individual who deviates from an adjoining roadway and requiring for the traveler to have been traveling with reasonable care upon the highway and for the traveler to have foreseeably deviated from the road in the ordinary course of travel). Thus, the only basis for finding that Camarena's deviation from the roadway was not in the ordinary course of travel is that Camarena deviated from the paved roadway. The City cited no authority, and I have found none, supporting a conclusion that driving on a paved roadway which becomes a dirt roadway means that, as a matter of law, the plaintiff's deviation is not in the ordinary course of travel.
Regarding ordinary course of travel, the Texas Supreme Court stated the following:
Comment g to section 368 of the Restatement (Second) explains the concept of "in the ordinary course of travel":
[T]he rule [that a duty is owed to an individual who is traveling with reasonable care upon the highway and is injured after deviating from an adjoining roadway onto an excavation] does not apply where the traveler intentionally deviates from the highway for a purpose not reasonably connected with travel upon it. It does not apply, for example, where he intentionally and unnecessarily takes a short cut cross the land, or steps out of the street to look at something in a window. Likewise this Section has no application where the deviation is one not reasonably to be anticipated, or is for a purpose not normally connected with the travel, as where the traveler runs off of the highway when pursued by criminals seeking his life. The
distinction is thus not between inadvertent and intentional deviations, but between those which are normal incidents of travel and those which are not.City of McAllen, 898 S.W.2d at 811.
RESTATEMENT (SECOND) OF TORTS § 368 cmt. g. Thus, a traveler is not "in the ordinary course of travel" unless the deviation from the road is a normal incident of travel.
In City of McAllen v. De La Garza, 898 S.W.2d 809, 811 (Tex. 1995), the driver drove a car into a caliche pit owned by the governmental entity, and the Texas Supreme Court stated that "a traveler who deviates from the highway is not 'in the ordinary course of travel' unless the deviation is a normal incident of travel." The Court ultimately held that the deviation in which the car traveled approximately 250 feet from the lane of travel before coming to rest in the City's caliche pit located within ten feet of the roadway was not in the ordinary course of travel because, among other things, the driver had a blood alcohol level of .11 and he blacked out or fell asleep at the wheel. Id. Here, there is no contention that Camarena had alcohol in her system or that she had fallen asleep while driving her vehicle.
Camarena attached pictures to her response to the City's plea to the jurisdiction showing that the paved road ends and, what appears to be a dirt road covered in vegetation immediately begins and then ends abruptly. In addition, Camarena presented evidence that there was no indication that the roadway had ended when she drove onto the dirt road or that there was a canal at the end of the roadway. The City presented no evidence that Camarena was drunk, was trespassing, had been driving erratically or dangerously, or had a medical condition causing her to deviate from the roadway. See City of McAllen, 898 S.W.2d at 810 (listing the cases wherein a driver's deviation from the roadway was not in the ordinary course of travel). At the very least, a question of fact exists regarding whether Camarena used reasonable care when she drove from the paved roadway to what the evidence shows to be a dirt road. See Miranda, 133 S.W.3d at 227-28 ("If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law."). If a jury determines that Camarena used reasonable care when she continued driving in a storm and drove on a dirt road, then she was within the ordinary course of travel. Accordingly, I would conclude that the trial court erred by granting the plea to the jurisdiction on this basis. I would sustain Camarena's third issue.
I note that it is hard to observe the curb in the pictures that I reviewed in the record. Regardless of whether there is a curb, I would conclude that a question of fact still exists because of the overgrown vegetation.
IV. DISCRETIONARY ACTS
By her second issue, Camarena contends that the City had a duty to warn of special defects. In its plea to the jurisdiction, the City stated that it is not liable for the accident because the TTCA does not waive immunity for discretionary acts. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.060 (West, Westlaw through 2017 1st C.S.). The City argues that the decision in this case to place a warning sign was a discretionary act; thus, immunity was not waived for the City's failure to do so.
However, there is an exception to section 101.060, which requires a state agency to warn of special defects. See id.; Tex. Dep't of Transp. v. Ingram, 412 S.W.3d 129, 135 (Tex. App.—Texarkana 2013, no pet.) (analyzing whether gravel on the road constituted a special defect and setting out the applicable law) (citing City of Houston v. Cogburn, No. 01-11-00318-CV, 2013 WL 1136553, at *8 (Tex. App.—Houston [1st Dist.] Mar. 19, 2013, no pet.) (mem. op.) ("The existence of a special defect, however, is an exception to the rule that a governmental entity does not waive immunity for a discretionary act."); State v. Wollesen, 93 S.W.3d 910, 913 (Tex. App.—Austin 2002, no pet.) (stating that "'regardless of whether the governmental act was discretionary, the State waives its immunity for the duty to warn of special defects'") (citing State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam), abrogated on other grounds by Denton Cty., 283 S.W.3d at 331 n.11); Kelly v. City of La Marque, No. 01-00-01068-CV, 2002 WL 1435924, at *3 (Tex. App.—Houston [1st Dist.] July 3, 2002, pet. denied) (mem. op.) ("'Even if the decision in question is discretionary, when a resulting condition constitutes a special defect, the governmental unit has an obligation to place a warning device; otherwise, it waives its immunity.'")); see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.060 (providing that although the government is immune from suit for the failure to place a traffic or road sign, signal, or warning device if the failure is a result of a discretionary act, there is an exception if the government fails to warn of a special defect). Having concluded that the canal in this case is a special defect, I would further conclude that the exception to section 101.060 applies, and the City was required to warn of the special defect. Accordingly, I would conclude that the trial court erred in granting the City's plea to the jurisdiction on the basis that the City had no duty to warn pursuant to section 101.060. I would sustain Camarena's second issue.
Accordingly, I would sustain Camarena's first issue contending that the trial court erred in granting the City's plea to the jurisdiction.
V. CONCLUSION
Based on the foregoing, I respectfully dissent.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed the 30th day of August, 2018.