Paul Sean Gaffney v. Texas Department of Criminal Justice-Institutional Division, Shawn Blair, and Kenny James--Appeal from 278th District Court of Walker County

Affirmed and Memorandum Opinion filed August 26, 2004

Affirmed and Memorandum Opinion filed August 26, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00472-CV

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PAUL SEAN GAFFNEY, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICEBINSTITUTIONAL DIVISION, SHAWN BLAIR,

AND KENNY JAMES, Appellees

___________________________________________________________________

On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 20,471-C

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M E M O R A N D U M O P I N I O N

Paul Sean Gaffney, an inmate in the Texas Department of Criminal Justice, Institutional Division (ATDCJ@), appeals the trial court=s take nothing judgment in favor of appellees. In three issues, Gaffney contends the trial court erred in (1) allowing TDCJ to present evidence that he was a trespasser, but then failing to submit a question on that issue; (2) granting a directed verdict for Shawn Blair and Kenny James; and (3) showing bias by suggesting the theory that Gaffney was a trespasser when the subject injury occurred. We affirm.

I. Factual Background

Gaffney suffered personal injuries when he stepped on a grate covering a drainage trench in the Abus barn@ at the Ellis Unit of TDCJ. The bus barn is an area where inmates, under supervision, refurbish school buses. The barn is divided into several departments, including welding, auto body, painting, and a sanding department. The drainage trench surrounds the sanding department and is approximately ten to eighteen inches wide and eighteen inches deep. The trench is covered by a metal grate.

On February 23, 1999, while working in the sanding department, an inmate named Steven Gilbert stepped on the grate covering the trench. The grate broke and Gilbert=s leg fell through, causing him to scrape his leg. Kenny James, the sanding supervisor, escorted Gilbert to the infirmary. Before leaving the sanding department, James told the inmates to avoid the area of the broken grate. Also, before taking Gilbert to the infirmary, James was required to inform Shawn Blair, the bus barn plant manager, that Gilbert was injured and was being taken to the infirmary. This was to ensure that when the inmates were counted, Gilbert would be included in the count. However, while James was in Blair=s office, Gaffney walked from the auto body department into the sanding department to ask for a job. When Gaffney stepped on the grate, he also fell through and injured his leg. James learned of Gaffney=s injury, escorted him to Blair=s office, then took Gaffney and Gilbert to the infirmary. Gaffney was not authorized to be in the sanding department when he was injured. Because Gaffney was not authorized to be in the sanding department, he received a disciplinary case for being out of place. Gaffney subsequently filed a lawsuit against TDCJ, James, and Blair for his injuries, alleging the broken grate was a premises defect and that James and Blair were grossly negligent in their failure to warn him of the danger.

II. Discussion

A. Jury Charge

In his first issue, Gaffney contends the trial court erred in failing to submit a question on whether he was a trespasser in the sanding department. He argues that TDCJ relied on the ARecreational Use@ statute[1] in claiming he was a trespasser, and that the trial court erred because he was portrayed as an intruder, when he had permission to be in the bus barn. Gaffney does not argue that the submission of gross negligence as to TDCJ was error because, as he states, he Astill had a vehicle for relief if he proved gross negligence on the part of [TDCJ].@ Instead, Gaffney claims the Atrespasser ruling destroyed the evidence of gross negligence on the parts of [James and Blair].@

Gaffney filed his lawsuit pursuant to sections 101.021(2) and 101.022 of the Texas Tort Claims Act (the AAct@). See Tex. Civ. Prac. & Rem. Code Ann. ''101.021(2), 101.022(a) (Vernon 1997). Section 101.021(2) provides that a governmental unit is liable for personal injury caused by a condition or use of real property if the government would, were it a private citizen, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. '101.021(2). Section 101.022(a) states that if a claim arises from a premises defect, the governmental unit owes to the plaintiff only the duty that a private person owes to a licensee on private property, unless the claimant paid for use of the premises. Tex. Civ. Prac. & Rem. Code Ann. '101.022(a). The duty that a landowner owes to a licensee is not to injure the licensee through willful, wanton, or grossly negligent conduct and, if the landowner has actual knowledge of the dangerous condition and the licensee does not, the landowner has a duty to either warn the licensee or make the condition reasonably safe.[2] State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992);[3] see also Gaffney v. TDCJ, No. 14-00-00572-CV, 2001 WL 1249756, at *1 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (not designated for publication) (hereinafter AGaffney I@).[4]

Here, the liability question submitted to the jury asked whether TDCJ was grossly negligent with respect to the condition of the premises.[5] Specifically, the issue of gross negligence was submitted as follows:

Was the gross negligence, if any, of TDCJ a proximate cause of the occurrence in question and was the negligence, if any, of the plaintiff a proximate cause of the occurrence in question?

TDCJ was grossly negligent with respect to the condition of the premises ifC

(a) The condition posed an unreasonable risk of harm, and

(b) The defendant both failed to adequately warn the plaintiff of the danger and failed to make that condition reasonably safe, and

(c) The defendant=s conduct was more than momentarily thoughtlessness, inadvertence, or error of judgment. In other words, the defendant must have either known or been substantially certain that the result or a similar result would occur, or he must have displayed such an entire want of care as to establish that the act or omission was the result of conscious indifference or reckless disregard for the safety of others.

In addition, the charge instructed the jury that Agross negligence@ was Athe entire want of care which raises the conclusion that the act or omission was the result of conscious indifference . . . . Ordinary negligence rises to the level of gross negligence if the defendant=s act or omission shows he was aware of the danger and did not care enough to avoid it.@[6] Thus, Gaffney is incorrect that this charge applied the law relevant only to intruders or trespassers; the charge applies to licensees. See Hidalgo v. Brown, 79 S.W.3d 721, 727 & n.3 (Tex. App.CCorpus Christi 2002, no pet.); Cobb v. Tex. Dep=t Criminal Justice, 965 S.W.2d 59, 63 (Tex. App.CHouston [1st Dist.] 1998, no pet.). Hence, the trial court did not submit an incorrect charge.

Moreover, Gaffney does not complain about the submission of Agross negligence@ as it pertains to TDCJ. Instead, he argues that the charge was incorrect regarding the individual defendants. However, no question was submitted to the jury regarding the liability of James and Blair because the trial court granted a directed verdict in favor of those defendants, an issue we address subsequently.

Finally, even assuming for the sake of argument that the charge was incorrect, because Gaffney did not object or submit an instruction or question, he failed to preserve error on this issue.[7] See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 278; Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 333 (Tex. App.CEl Paso 1993, no writ) (stating under Rule 278 Apurported error regarding an omitted jury instruction is deemed waived absent the request and tender, in writing, of an instruction in substantially correct form@). Any complaint to a jury charge is waived unless specifically included in an objection. Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a)(1). A party must timely make the trial court aware of the complaint and obtain a ruling. In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003).

Based upon the foregoing, we overrule Gaffney=s first issue.

B. The Directed Verdict

In his second issue, Gaffney contends the trial court erred in granting a directed verdict in favor of James and Blair. Gaffney alleged that James and Blair were grossly negligent in failing to warn him of the grate=s condition. At the close of evidence, the appellees moved for a directed verdict, contending Gaffney presented no evidence of gross negligence.[8] The trial court granted the motion on behalf of James and Blair, but denied the motion on behalf of TDCJ.

In reviewing a directed verdict, we must determine whether any evidence of probative force raises a fact issue on the material questions presented. Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 187 (Tex. App.CHouston [14th Dist.] 2002, no pet.). We consider all of the evidence in a light most favorable to the party against whom the verdict was directed and disregard all contrary evidence and inferences. Id. If any evidence of probative value supports any theory of recovery, a directed verdict is improper and the case must be reversed and remanded for jury determination of that issue. Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex. 1994); Deutsch, 97 S.W.3d at 187.

Gross negligence involves proof of the following two elements: (1) viewed objectively from the actor=s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998); R&R Contractors v. Torres, 88 S.W.3d 685, 707B08 (Tex. App.CCorpus Christi 2002, no pet.); see generally Tex. Dept. of Parks & Wildlife v. Miranda, No. 01 0619, 47 Tex. Sup. Ct. J. 386, 2004 WL 726901, *5 (Tex. 2004) (examining evidence of gross negligence under Tort Claims Act in relation to these elements of gross negligence). Under the Aobjective@ element of gross negligence, extreme risk is Anot a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.@ Mobil Oil Co., 968 S.W.2d at 921; R&R Contractors, 88 S.W.3d at 708B09. Regarding the second element, ordinary negligence rises to the level of gross negligence when it is shown that the defendant was aware of the danger, but his acts or omissions reflect that he did not care to address it. R&R Contractors,88 S.W.3d at 708. Direct or circumstantial evidence may serve to prove the second element. Mobil Oil, 968 S.W.2d at 921. Evidence of simple negligence, however, is insufficient to prove either of the elements of gross negligence. Id.

Here, from the viewpoint of the actor, James, the evidence reflected that he had actual knowledge of the condition of the grate. However, he testified that at the time Gaffney fell through the grate, he was taking Gilbert, the first inmate injured, to the infirmary as he was required to do under TDCJ policy. James testified that he asked an inmate welder to come fix the grate after Gilbert was injured. Although another inmate, Malcolm Williams, testified that James told him to put the grate back into place prior to the welder arriving, this does not rise to the level of Aextreme risk.@ See, e.g., Universal Servs. Co., Inc. v. Ung, 904 S.W.2d 638, 641B42 (Tex. 1995).

Further, James stated that he warned all the inmates working in the sanding area to avoid the grate and that inmates working in the taping area were also aware of the problem because they were there when Gilbert fell through the grate. He stated he did not think there was a substantial risk of someone from outside the sanding department coming through the area. Importantly, evidence showed that Gaffney should not have been in the sanding area and James testified that had he known other inmates would come into the area, he would have instructed another supervisor to attend to the grate while he escorted Gilbert to the infirmary.

Blair=s knowledge of the broken grate at the time of Gaffney=s accident is less certain. Inmate Leonard Ray Croom testified that whenever there is a problem in the facility, inmates report the problem directly to an officer. The officer prepares daily reports and writes a weekly facility report that is given to the head supervisor. Although the inmates and James testified that forklifts had broken the grates and fallen into the ditch prior to Gaffney=s injury, Blair testified that he could not recall any incidents in which the grate or the underlying drains had been broken. Moreover, there was no evidence that an individual, weighing much less than a forklift, had ever broken the grate or been injured prior to Gilbert=s and Gaffney=s injuries.

James testified that he informed Blair of the broken grate on the day of the inmates=injuries. Blair testified that James brought Gilbert to the office where he was working, as he was required to do, and then immediately left to get the welder. After Gaffney fell, James returned to inform Blair that another inmate had been injured and then James brought both inmates to the infirmary. Further, no one disputes that James was responsible for the repair of the broken grate. Blair also stated that he was confident that James would have the grate fixed and he felt James acted reasonably.

Given this evidence, we do not find that the risk of James=s or Blair=s conduct was so extreme as to create a likelihood of serious injury and the trial court did not err in directing a verdict in their favor. See, e.g., Ung, 904 S.W.2d at 641B42. Accordingly, Gaffney=s second issue is overruled.

 C. Bias

In his third issue, Gaffney contends the trial court was biased because the court first presented the Aintruder theory.@ The record clearly reflects; however, that the issue was raised by appellees and not by the trial court. Gaffney=s third issue is overruled.

The judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 26, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Guzman.

[1] See Tex. Civ. Prac. & Rem. Code ' 75.002(a).

[2] The duty owed a trespasser is not to injure that person willfully, wantonly, or through gross negligence. Tex. Dept. of Parks & Wildlife v. Miranda, No. 01 0619, 47 Tex. Sup. Ct. J. 386, 2004 WL 726901, *5 (Tex. 2004) (citing Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997)).

[3] See also Tex. Gov=t Code ' 497.096 (stating that TDCJ employees are not liable for damages arising from acts or failures to act regarding inmates involved in educational and other activities, if the act or failure to act was not Aintentional, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others.@).

[4] In Gaffney I, this Court reversed a summary judgment granted against Gaffney, holding that he was not required to prove willful, wanton, or grossly negligent conduct by the TDCJ if he proved (1) a condition of the premises created an unreasonable risk of harm; (2) the TDCJ actually knew of the condition; (3) Gaffney did not actually know of the condition; (4) TDCJ failed to exercise ordinary care to protect Gaffney from danger; and (5) TDCJ=s failure was a proximate cause of injury to Gaffney. See Gaffney, 2001 WL 1249756, at *1.

[5] A premises defect claim under the Act cannot be recast as a general negligence claim under section 101.021(2). See Miranda, 2004 WL 726901, *12.

[6] The evidence at trial showed that TDCJ knew of the broken grate; however, there was no evidence establishing that Gaffney did not know of its dangerous condition.

[7] Gaffney argues that because he is representing himself, we should not hold him to the same procedural standards as a party who is represented by counsel. Pro se litigants, however, are held to the same standards as licensed attorneys, and they must therefore comply with all applicable rules of procedure. Clemens v. Allen, 47 S.W.3d 26, 28 (Tex. App.CAmarillo 2000, no pet.).

[8] Gaffney contends that by directing a verdict in their favor, the trial court granted James and Blair immunity. To the contrary, the trial court found no evidence of gross negligence, but did not rule on the issue of immunity. Both Gaffney and TDCJ argue in their respective briefs the merits of James=s and Blair=s official immunity. However, because the trial court did not consider immunity in granting the motion for directed verdict, we focus on the question of gross negligence. See generally Bradshaw v. Universal DTEC Corp., No 01-96-01555-CV, 1998 WL 230419, at *3 (Tex. App.CHouston [1st Dist.] 1998, no pet.) (not designated for publication) (overruling appellant=s issue that claimed trial court erred in granting the directed verdict because the reason appellant cited was not considered by the trial court and therefore irrelevant).