Plaintiff Levesque was injured when his motor vehicle collided with a bull that had escaped confinement and wandered onto an Interstate Highway within the corporate limits of the defendant city. The trial court granted summary judgment for the city on the grounds it was not liable for the injury under the Tort Claims Act. In this opinion, the Court of Appeals agrees with that decision and upholds the judgment of the trial court.
Appellants appeal from a take-nothing summary judgment for appellee (Texas City). Appellants sued Texas City as a governmental entity alleging liability for injuries arising from a multiple automobile accident. In one point of error, appellants contend the trial court erred in granting Texas City summary judgment because there were disputed fact issues. We affirm.
On August 15, 1996, appellant Romano was driving south on IH-45 and struck and killed a bull belonging to James R. Frazier (Frazier). Appellant McEwin also hit a bull owned by Frazier. Appellant Levesque hit the carcass of one of the bulls in the southbound lanes of IH-45. All of the appellants were injured in this multiple car accident. The stretch of road involved lies within the city limits of Texas City, and appellants argue Texas City is liable under the Texas Tort Claims Act for personal injury "caused by a condition or use of tangible real property" if the governmental 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 & Supp.1998). Appellants contend Texas City owed them a duty under section 101.022, Texas Civil Practices and Remedies Code, because the "condition" was either premise or special defect. Appellants further contend that Texas City is liable for damages arising from its governmental functions, street maintenance, warning signals, regulation of traffic, maintenance of traffic signals, signs, and hazards, and animal control, under sections 101.0215(a)(4), (2), (21, (31), and (33), Texas Civil Practices and Remedies Code. Appellants argue that Texas City failed to control the loose livestock problems on its roadways, of which it was aware, that created an unreasonable risk of harm to appellants, and thus constituted a premise defect. Appellants further argue that the loose livestock on the highway were an obstruction on the highway, and imposed a duty on Texas City to warn appellants of the hazardous conditions on the highway.
A movant for summary judgment has the burden to show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a(c). To be entitled to summary judgment, a defendant must either (1) conclusively negate at least one essential element of each of the plaintiff's causes of action, or (2) conclusively establish each element of an affirmative defense to each claim. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). In reviewing a summary judgment, evidence favorable to the nonmovant is taken as true, and all reasonable inferences are indulged in the nonmovant's favor. See Johnson Co. Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex.1996). A summary judgment may be affirmed on any of the movant's theories which has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996). Appellate courts should consider all grounds for summary judgment the movant presented to the trial court when properly preserved for appeal. Id. at 625.
Texas City moved for summary judgment on the grounds that: (1) the City did not own or control the property, (2) the City had no actual knowledge of the "premises defect," and (3) the presence of the bull was not a "special defect." Appellants argue that Texas City did have control of the highway because its police and fire departments responded to the accident, and Texas City did not prove the State had exclusive control and ownership over the highway. Because Texas City received numerous telephone calls reporting loose livestock on IH-45, appellants argue that the City knew of the "premises defect" caused by the cattle on the roadway, and had a duty to warn motorists of this hazard. Appellants further argue the cattle were an "obstruction" on the highway and were a "special defect" under section 101.022(b), Texas Civil Practices and Remedies Code, and appellants were owed the duty of invitees.
On the control issue, appellants cite City of Denton v. Van Page, 701 S.W.2d 831 (Tex.1986) as authority for the proposition that the City failed to prove it did not exercise control of the highway portion involved in the accident. Because the City had to furnish fire and police service to the scene, and had to furnish animal control for loose livestock complaints, appellants argue the City "controlled" this portion of the highway.
City of Denton involved a suit against the City and the landlord of a building that burned and caused injuries to Van Page. Page rented a house from Melton that had a storage building in the back. On three separate occasions an arsonist attempted to burn the storage building and its contents. On each occasion the fire department for the City extinguished the fire. The fire marshal also investigated the scene and filed a report in which he concluded kerosene had been used to set the fires. One night Page heard noises coming from the storage building, and investigated. Page opened the door and was met with an explosion and flames that severely burned him. The fire marshal again responded to extinguish the fire and investigate. The fire marshal determined the fire was caused by an arsonist. Page sued Melton and the City of Denton alleging that his injuries were proximately caused by the dangerous condition of the storage building. Page's theory was that the city, through its fire marshal, was negligent in its investigation of the arson in failing to discover and remove the gasoline stored in the building, or in failing to warn Page of the building's dangerous condition. Page alleged that the dangerous condition of the storage building was a "condition" of real property for which the city was liable under the Texas Tort Claims Act.
The supreme court stated: "the threshold issue is what duty did the City of Denton owe Page with respect to the dangerous condition of the storage building." City of Denton, 701 S.W.2d at 834. The supreme court found that the City of Denton waived its governmental immunity under circumstances where a private person similarly situated would be liable. Id. at 835. "Ordinarily a person who does not own the real property must assume control over and responsibility for the premises before there will be liability for a dangerous condition existing on the real property." Id. "It is possession and control which generally must be shown as a prerequisite to liability." Id. "Additionally, a private person who has created the dangerous condition may be liable even though not in control of the premises at the time of injury." Id. "Also, a private person who agrees to make safe a known, dangerous condition of real property may be liable for the failure to remedy the condition." Id. The supreme court found the City of Denton did not satisfy any of these circumstances. Id. The City of Denton did not exercise control over the storage building, nor did it expressly or impliedly contract to remedy any dangerous condition on the property. The fire marshal did not create the dangerous condition, nor did he promise to find and remedy any unsafe condition in the building, nor did he promise to make the storage building safe from arson. Id. The supreme court held that the City of Denton was not liable for the dangerous condition of the storage building because it neither owned, occupied nor controlled the premises, nor did it create the dangerous condition. Id. The supreme court further found that the facts of that case did not present a case of waiver of governmental immunity with the meaning of the Tort Claims Act and the City was not liable to Van Page.
In this case, Texas City furnished summary judgment proof in the form of an affidavit of James McWhorter, the City Engineer for Texas City, who stated the accident area of IH-45 did lie within the city limits, but there were no police records or logs indicating a call-in of loose cattle in that area prior to the accident. He further stated the City (1) did not own any cattle or pasture any cattle, (2) the property adjacent to the highway is privately owned, (3) the City does not own any part of the highway, (4) the portion of the highway that passes through Texas City was not built by Texas City nor is it maintained by the City, (5) the area is not routinely patrolled by Texas City police, and (6) the City has no authority to examine, regulate, or otherwise become involved in the maintenance of fencing on private property adjacent to the highway.
In her affidavit, Carla A. Costello, a Detective and Analyst for the Texas City police department, stated she conducted a study of the records of the police department and found no reports of any loose livestock in the area of the accident for 24 hours in advance of the accident.
Appellants did not object to these affidavits in their responses to Texas City's motion for summary judgment. Appellants' responses did not furnish proof to rebut the City's evidence that it did not own, occupy, or control the highway, or that the City had any control over private fencing of cattle.
" 'Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.' " City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979) (quoting then rule 166a(e), Texas Rules of Civil Procedure; now, rule 166a(f), Texas Rules of Civil Procedure). " 'Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.' " Id. (quoting rule 166a(c), Texas Rules of Civil Procedure. The nonmovant must present some competent summary judgment evidence before a court can determine fact issues preclude the granting of summary judgment. Ligget v. Blocher, 849 S.W.2d 846, 852 (Tex.App.-Houston [1st Dist.] 1993, no writ). Texas City did not exercise control over the highway, did not create the dangerous condition, nor did it promise to remedy the unsafe condition on the highway. Appellants contention that Texas City had a duty to discover the dangerous condition (cattle on highway) and either make it safe or warn appellants of the danger is overruled.
In a recent case, the supreme court further clarified the "condition or use of tangible personal or real property" provision in section 101.021(2) to require more than "mere involvement" with property. Dallas Co. Mental Health v. Bossley, 968 S.W.2d 339, 342-43 (Tex.1998). The court held that "[p]roperty does not cause injury if it does no more than furnish the condition that makes the injury possible." Id. at 343. "Section 101.021(2) requires that for immunity to be waived, personal injury or death must be proximately caused by the condition or use of tangible property." Id. In the Dallas Co. Mental Health case, the plaintiffs were the heirs of a patient (Roger) that committed suicide after admission to the mental hospital. They contended that the hospital used the property because an employee unlocked the outer door without looking for Roger. Roger later escaped through the door, ran to a highway, and leaped into the path of a truck and was killed. The heirs also contended that the hospital furnished a condition of the property (an unlocked inner door) that facilitated Roger's escape and subsequent death. The supreme court found that neither the alleged "use" nor alleged "condition" "can be said to have caused Roger's suicide." Id. at 343. "The unlocked doors permitted Roger's escape but did not cause his death." Id. "Although Roger's escape through the unlocked doors was part of a sequence of events that ended in his suicide, the use and condition of the doors were too attenuated from Roger's death to be said to have caused it." Appellants argue that the City used the Highway when it investigated the accident and therefore exercised control over the Highway. In this case, the cattle escaped from private property adjacent to the highway, over which the City had no control, and wandered onto the highway, over which the City had no control. The highway cannot be said to have been the proximate cause of the accident although it was "a part of a sequence of events" that ended in the multiple collisions on the highway which were caused by the cattle on the highway, and not by a condition on or use of the highway. Id. at 343. Therefore, we find the City did not waive its immunity because of a "use or condition" in the highway under section 101.021(2).
Appellants further contend that the City is liable because the presence of the cattle on the highway constituted a "premises defect" under section 101.022(a), Texas Civil Practices and Remedies Code. Also, appellants argue that the presence of the cattle constituted a "special defect" under 101.022(b), because they were an "obstruction" on the highway. Whether a condition is a premises or special defect for which immunity from liability is waived by the Tort Claims Act is a question of law. State v. Burris, 877 S.W.2d 298, 299 (Tex.1994). In Burris, the supreme court held that a fully operational motor vehicle, making an illegal movement or momentarily stopped on a highway, is neither a defect in the highway premises nor an excavation or obstruction or similar condition. Id. A condition may be a special defect only if it is an excavation, obstruction or some other condition which presents "an unexpected and unusual danger to ordinary users of roadways." Id. To date there have been no Texas cases on whether the presence of cattle on a highway constitute a premises or special defect. In Burris, an unidentified car entered the highway from the street on the right of the driver, crossed his lane of travel, and attempted to make a left turn onto the highway. Id. The driver of the unidentified car ignored warning signs prohibiting left turns onto the highway, and an asphalt barrier directing traffic to the right. Burris swerved to avoid the car, lost control, struck another car, and was killed. Id. Burris's estate alleged the unidentified car was a premise defect or special defect and immunity was waived under the Tort Claims Act. Id. We hold that the cattle on the highway, like the unidentified car in Burris, were "neither a defect in the highway premises nor an excavation or obstruction or similar condition" and the City is not liable under the premise defect or special defect theory. Id. Furthermore, the City contended in its motion for summary judgment that it would not be liable under a theory of "premises defect" because it had no knowledge of the alleged condition that caused the accident. "Absent a finding that the State knew of the dangerous condition prior to the accident, it is not liable to plaintiffs unless the condition was a special defect. State Dept. of Highways v. Kitchen, 867 S.W.2d 784, 786(Tex.1993). We have found that the cattle were not a special defect. Appellants contentions that the accident was caused by a premises defect or special defect in the highway are overruled.
Appellants further contend the City did not address their general negligence allegations in its motion for summary judgment. The City did address these allegations of negligence concerning the City's failure to contain the livestock, failure to post warning signs, and failure to instruct employees of the dangers of private fences causing cattle to wander on highways. The City alleged in its motion for summary judgment that appellants' negligence claims must arise out of a "condition or use of tangible personal or real property." In their brief, appellants cite only Shade v. City of Dallas, 819 S.W.2d 578 (Tex.App.-Dallas 1991, no writ) as authority for liability of a municipality for governmental functions that are performed and cause personal injury. Shade was a suit against the City of Dallas for property damage and resulting mental anguish arising out of the flooding of Shade's home. The court of appeals reversed and remanded a summary judgment for the City on the grounds if failed to establish as a matter of law that it was negligent in the construction of the sewer system and thus immune from liability. Id. at 584. Shade was disapproved as to its holding that mental anguish is recoverable when it arises from the negligent infliction of property damages. City of Tyler v. Likes, 962 S.W.2d 489, 499 (Tex.1997). Shade also is not authority for appellants' contention that Texas City was liable if it was negligent in the performance of its governmental functions. In the City of Tyler case, Likes sued the City for flood damage allegedly caused by improper maintenance of the City's culverts by failing to keep them clear of debris that might interfere with the flow of water. Id. at 502. The operation of storm sewers is classified as a governmental function for all suits filed on or after September 2, 1987. See Tex.Civ.Prac. & Rem.Code Ann. § 101.0215(a)(9) (Vernon 1997 & Supp.1998); Id. The supreme court found that the City was immune from liability for Likes' property damage claim alleging negligent maintenance by the City in the performance of its governmental function under section 101.0215(a)(9). Id.
Appellants apparently take the position that Texas City has waived its governmental immunity because animal control, police protection, etc., are listed governmental functions under section 101.0215. Section 101.0215 did not waive governmental immunity merely because a governmental action fell within the list of section 101.0215. McKinney v. City of Gainsville, 814 S.W.2d 862, 865 (Tex.App.-Fort Worth 1991, no writ). Liabilities from activities in the list of governmental functions in this section arise only out of those areas listed in sections 101.021 and 101.022, Texas Civil Practices and Remedies Code. Id. We hold that Texas City is immune from liability for appellants' general negligence claims arising from the alleged performances of various governmental functions listed in section 101.0215(a), Texas Civil Practices and Remedies Code. Appellants' sub-point of error contending liability for the City's negligence in the performance of its governmental functions is overruled and the judgment of the trial court is affirmed.
Edelman, J., concurs in the result only.
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