BEATRIS MOYA v. GOLIAD COUNTY--Appeal from 24th District Court of Goliad County

NUMBER 13-00-456-CV

COURT OF APPEALS

  THIRTEENTH DISTRICT OF  TEXAS

    CORPUS CHRISTI

BEATRIS MOYA, Appellant,

v.

GOLIAD COUNTY,  TEXAS, Appellee.

On appeal from the 24th District Court

  of Goliad  County,  Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa, and Castillo

Opinion by Justice Castillo

Appellant Beatris Moya (AMoya@) appeals from a summary judgment issued against her based on Goliad County=s affirmative defense of sovereign immunity. In two issues, she argues that summary judgment was improper due to the existence of a Aspecial defect@ on the land or, alternatively, a Apremises defect@ of which Goliad County was aware. We affirm.

Factual Summary

On June 16, 1997, Richard Zapata was driving east on Kohl Road in rural Goliad County, on the way to Victoria, Texas. His common-law wife, Beatris Moya, was a passenger in the car. The road he was driving was straight and unobstructed. Zapata was driving between twenty-five and thirty miles per hour, in order to avoid hitting an animal crossing the road. As Zapata was driving, a deer jumped in his path, resulting in a collision between the car and the deer. As a result of the collision, Zapata=s car went off the road, and Moya sustained injuries to her head, neck, and jaw.[1]

Moya sued Goliad County for her injuries under the Texas Tort Claims Act, claiming that the high grass located along the roadside obscured the presence of the deer until it leapt into the road, preventing Zapata from avoiding the collision. It is undisputed that the grass along the roadside was in excess of three feet at the time of the accident. Goliad County periodically cut the grass on its rural roads, but had not yet cut the grass on Kohl Road at the time of the accident. Moya asserted liability against the County under both Apremise defect@ and Aspecial defect@ grounds of the Texas Tort Claims Act.[2]

Goliad County moved for a traditional summary judgment, on the basis that it, as a government entity, was immune from suit under the doctrine of sovereign immunity, because the claims brought did not fall under the limited waiver provisions of the Tort Claims Act as to either premise or special defects. The trial court rendered summary judgment for Goliad County, and this appeal followed.

Standard of Review

Under a traditional summary judgment under Texas Rule of Civil Procedure 166a(c), the movant has the burden of showing that there is no genuine issue of material fact and is entitled to judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. Id. Evidence favoring the movant=s position will not be considered unless it is uncontradicted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1972). A defendant=s motion for summary judgment must disprove at least one essential element of each of the plaintiff=s causes of action, or establish all the elements of an affirmative defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

Sovereign Immunity and the Tort Claims Act

As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Harris County v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Whether a particular claim falls into an exception from the general doctrine of sovereign immunity is entirely dependant on the statutory language. Dallas County Mental Health & Mental Retardation v. Bosley, 968 S.W.2d 339, 341 (Tex. 1998).

The Texas Tort Claims Act provides that government units are liable for Apersonal injury and death so caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law.@ Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2) (Vernon 1997). It is undisputed that the County of Goliad is a Agovernment unit@ as defined by the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001(3) (Vernon Supp. 2001).

Moya alleges in this case that the tall grass located along the side of Kohl Road constituted a dangerous condition of Goliad County=s real property, thus creating liability for the County. The Texas Tort Claims Act recognizes liability for two types of dangerous conditions of real property B premise defects and special defects. Tex. Civ. Prac. & Rem. Code Ann. '101.022 (Vernon 1997).

Where it is asserted that the injury is caused by a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property. Tex. Civ. Prac. & Rem. Code Ann. '101.022(a) (Vernon 1997). Thus the government=s only duty is not to injure the claimant willfully, wantonly, or through gross negligence. State Dep=t of Highways and Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh=g); State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). The exception to this rule is that, where a landowner has actual knowledge of a dangerous condition, and the licensee does not, the landowner then has the duty either to warn the licensee or to make the condition reasonably safe. Tennison, 590 S.W.2d at 562. For there to be liability under such exception, constructive knowledge is insufficient; rather, there must be proof of actual knowledge on the part of the landowner as to the dangerous condition in question. Tennison, 509 S.W.2d at 562.

However, the limitation of the government=s duty to claimants to that duty owed by a private landowner to a licensee does not apply to the government=s duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to warn of the absence, condition, or malfunction of traffic regulators. Tex. Civ. Prac. & Rem. Code Ann. '101.022(b) (Vernon 1997). Where there exists a special defect, the government unit owes the same duty to drivers as a private landowner owes to an invitee. Payne, 838 S.W.2d at 237. That is, the government unit must exercise ordinary care to protect the driver / invitee from a dangerous condition which the government unit is or reasonably should be aware. Id. A special defect is generally limited to those conditions which occur on the surface of the road, or pose a threat to ordinary users of the roadway. Id. at 238-39.

The question of whether an alleged defect is a special defect or premise defect, and thus what duty is owed, is a question of law. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999). We therefore consider this issue de novo. Since, generally, defects in the condition of land that are not special defects are, by default, premise defects, we will first consider whether the alleged defect in question was a special defect under law.

Special or Premise Defect?

A dangerous condition need not have been created or caused by the government unit to constitute a special defect. County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978). However, the condition needs to be analogous to and of the same degree as Aexcavations or obstructions on highways, roads, or streets.@ Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(2) (Vernon 1997); Johnson v. Texas Dep=t of Transp., 905 S.W.2d 394, 399 (Tex. App.BAustin 1995, no writ). It must present Aan unusual and unexpected danger to ordinary users of roadways.@ Payne, 838 S.W.2d at 238.

Most property defects are premise defects, not special defects. City of San Benito v. Cantu, 831 S.W.2d 416, 422 (Tex. App.BCorpus Christi 1992, no writ). In general, tall vegetation that obstructs the view of a driver is considered to be a premise defect, and not a special defect. Sipes v. Texas Dep=t of Transp., 949 S.W.2d 516, 521 (Tex. App.BTexarkana 1997, writ denied). Texas courts reviewing Agrass on the side of the road@ claims have consistently held that vegetation obscuring hidden dangers does not constitute a special defect. See Anderson v. Anderson County, 6 S.W.3d 612, 615-16 (Tex. App.BTyler 1999, pet denied) (vegetation on a rural road covering a stop sign was not a special defect);Wildermuth v. Parker County, 1 S.W.3d 705, 708 (Tex. App.BFort Worth 1999, no pet.) (trees and vegetation along the side of the road not considered a special defect, even though they obscured oncoming traffic); Johnson, 905 S.W.2d at 399 (vegetation obscuring a stop sign is not a special defect).

In this case, Moya claims that tall grass on the side of the road obscured the driver=s view of a hidden danger, the deer, precipitating the accident. We find that Goliad County presented sufficient summary judgment evidence to demonstrate that the tall grass did not constitute a special defect in this case. Moya and her husband testified that they traveled Kohl Road with some frequency. Both testified that they knew the grass on the side of the road was high and believed that it was dangerous. Zapata admittedly knew that deer and other animals crossed this road, and he was driving slowly in order to prevent collision with an animal. Under such circumstances, we cannot say that the danger presented by the tall grass was either unexpected or unusual, and therefore it was not a special defect. Since there was no special defect, the trial court did not err in granting summary judgment as to appellant=s special defect claim. Accordingly, we overrule Moya=s first issue.

Liability under the Premise Defect Standard

Since we have determined that the alleged hazard was a premise defect, we consider then whether the trial court was correct in granting a summary judgment against appellee=s claim under this theory of liability.

As previously stated, in the case of a premise defect, the ordinary duty of a governmental unit is only to not willfully, wantonly, or through gross negligence injure those using its land. Payne, 838 S.W.2d at 237. An exception exists, however, in such cases where the governmental unit had actual knowledge of a dangerous condition, and the person on the land did not. Tennison, 509 S.W.2d at 562. In those cases, there then exists the further duty to exercise reasonable care to warn or make safe the dangerous condition. Id.

I. The Tennison Exception

We will first consider whether the Tennison exception applies, and therefore whether a duty was imposed on Goliad County to warn or make safe the dangerous condition. Tennison, 509 S.W.2d at 562. Such additional duty would only arise if the County had actual knowledge of the dangerous condition and Moya had no knowledge of that same condition. Id. (emphasis added). We therefore review the evidence as to the question of the actual knowledge of the parties.

Goliad County presented summary judgment evidence conclusively demonstrating that Moya had actual knowledge of the dangerous condition of the road. A government unit owes no duty to warn or make safe a premise defect that the driver (or in this case, passenger) on the road knows about herself. Payne, 838 S.W.2d at 237. The burden is on the person suing under the Tort Claims Act to prove that she had no actual knowledge of the dangerous condition. Id. Moya did not present any summary judgment proof demonstrating that she did not know about the dangerous condition. On the contrary, in depositions, Moya testified that she had to drive down Kohl Road at least once a week to get to and from her residence, and Zapata testified that he drove on Kohl Road two or three times a week. Both Zapata and Moya testified that they believed the grass along Kohl Road created a dangerous condition for a month prior to the accident, although neither notified the County of their concern. In light of these facts, we find that Goliad County had met its burden on summary judgment to prove that Moya had knowledge of the dangerous condition.

Further, we note that there was no evidence presented to the trial court demonstrating that the County had actual knowledge of a dangerous condition at the spot of the accident prior to its occurrence. At most, Moya has demonstrated that County Commissioner Precinct Four, Wayne Key, had traveled down Kohl Road many times in 1997, and, due to his experience as a hunter, was generally aware that deer sleep in high grass. Moya also presented evidence demonstrating that between 1995 and 1997, twenty-one auto accidents occurred in Goliad County involving animals. However, there was no evidence presented that any incidents involving cars colliding with deer or any other animals had been reported on Kohl Road prior to the one in which Moya was injured. Because Goliad County is a predominantly rural county possessing hundreds of miles of roads both paved and unpaved,[3] we cannot conclude that its agents possessed actual knowledge of a hazardous condition caused by high grass at a particular location on a rural road, absent evidence of some sort of notification or complaint given to the county regarding the hazard.

As Moya knew of the dangerous condition, we find that the Tennisonexception does not apply and the County had no duty to warn of or make safe the condition. Tennison, 506 S.W.2d at 562. Thus the only duty owned by the County to Moya was the ordinary one not to injure her willfully, wantonly or through gross negligence. Payne, 838 S.W.2d at 237; Tennison, 506 S.W.2d at 562. We therefore next consider whether the evidence was sufficient to demonstrate that the County did not fail in this duty. See Cobb v. Texas Dep=t of Crim. Justice, 965 S.W.2d 59, 62 (Tex. App.BHouston [1st Dist.] 1998, no pet.)(where plaintiff knew of defect, and thus Tennisonexception did not apply, he could only recover under the Texas Tort Claims Act if he could prove gross negligence or willful, wanton conduct); Simpson v. Harris County, 951 S.W.2d 251, 254 (Tex. App.BHouston [14th Dist.] 1997, no pet.)(where county not liable under Tennisonexception, court considers liability under gross negligence standard).

II. Willful or Wanton Conduct and Gross Negligence

Gross negligence consists of Asuch an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.@ See Tex. Civ. Prac. & Rem. Code Ann. ' 41.0001(5) (Vernon Supp. 2002). Ordinary negligence rises to the level of gross negligence when it can be shown that the defendant was aware of the danger but did not care to address it. Burk Royalty Co. v. Wells, 616 S.W.2d 911, 922 (Tex. 1981).

We find that Goliad County has presented sufficient evidence to refute Moya=s claim that it acted willfully, wantonly, or with gross negligence with respect to the grass on the side of Kohl Road. Kohl Road is located in a rural section of Goliad County, not in the middle of a city, and thus a certain amount of grass and other vegetation along the side of the road is to be expected. County Commissioner Key testified that he personally drove the roads in his precinct in order to determine what grass needed cutting. Goliad County cut all the grass along the sides of its roads two or three times a year, and was in the process of cutting the grass along a different section of Kohl Road when Moya=s accident happened. No complaint was ever brought to Goliad County regarding the height of the grass on the particular section of Kohl Road that Moya was injured on, prior to her injury. There is no indication in the record that any accidents involving deer or other animals had occurred on Kohl Road prior to this one. Given these facts, we cannot say that Goliad County=s failure to cut tall vegetation where this accident occurred was willful, wanton, or grossly negligent.

We therefore find that Goliad County adequately demonstrated that Moya=s claims did not satisfy the requirements necessary to recover for a premise defect under the Tort Claims Act, and we overrule issue number two.

Conclusion

Having overruled both of Moya=s issues, we affirm the judgment of the trial court.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P.47.3(b).

Opinion delivered and filed

this 2nd day of May, 2002.

[1]The Goliad Countysheriff=s office was not notified of the accident at the time it occurred, nor at any time prior to the institution of this lawsuit.

[2] Tex. Civ. Prac. & Rem. Code Ann. '101.022 (Vernon1997).

[3]Goliad Countyhas an area of 854 square miles and contains 316 miles of roads.