Robnett v. City of Big SpringRobnett v. City of Big Spring
OPINION
This case involves governmental liability under the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE ANN. § 101.001 et. seq. (Vernon 1997 & Supp. 2000). All statutory references in this opinion are to the Act. The trial court granted the City of Big Spring’s (City) motion for summary judgment, and Kendall L. Robnett appeals that decision. We reverse and remand.
Robnett was driving east on 13th Street in Big Spring. When she came to the intersection of 13th Street and Main Street, she proceeded into the intersection without stopping and collided with another vehicle. Robnett sued the City for “negligence and/or special defect law,” for failing “tо keep the roadway free and clear of unexpected and unusual dangers to ordinary users of roadways” and for failing to “reduce or eliminate an unreasonable risk of harm created by a condition of which it was aware or reasonably should have been aware.” Specifically, Robnett claims that the branches of an overgrоwn elm tree completely restricted her view of the stop sign at the intersection and proximately caused the collision.
The City filed a motion for summary judgment, contending that it wаs entitled to sovereign immunity subject to the limited exceptions set forth in the Texas Tort Claims Act. Furthermore, the City asserted in its motion that the elm tree in question was a premise defect as a matter of law and that it had no actual notice or knowledge of the overgrown tree. The trial court granted both the City’s motion to strike Robnett’s summary judgment evidence and its motion for summary judgment.
Robnett takes the position that the obstructed stop sign constitutes a special defect or, alternatively, if it is a premise defect, then she has presented admissible summary judgment evidence of actual notice. She also argues that the trial court
Under the doctrine of sovereign immunity, the State and its agencies are generally immune from suit unless the State gives its consent to be sued.
Federal Sign v. Texas Southern University,
[ Pjersonal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Robnett argues both on appeal and in the trial court that the correct duty owed to her by the City is contained in the portion of Section 101.022(b) dealing with special defects. Section 101.022(b) provides:
The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty tо warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.
It is well established that, in cases involving a special defect, the governmental unit owes a claimant the duty that a private landowner owes an invitee.
County of Harris v. Eaton,
However, in its motion for summary judgment, the City maintains that its duty in this case is established under Sеction 101.022(a). Section 101.022(a) provides:
If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes tо a licensee on private property, unless the claimant pays for the use of the premises.
That duty requires:
[T]hat a landowner not injure a licensee by willful, wanton, or grossly negligent cоnduct, and that the owner 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.
State Department of Highways & Public Transportation v. Payne,
supra at 237;
State v. Tennison,
Section 101.022(a) is actually a limitation upon the duty owed by a governmental unit by requiring actual knowledge of the dangerous condition. This is recognized as a limitаtion in Section 101.022(b).
It is important to note that Section 101.060(a)(2) provides that the chapter allowing for governmental liability does not apply to a claim arising from “the ... conditiоn ... of a traffic or road sign, signal, or warning device unless ... the ... condition ... is not corrected by the responsible governmental unit within a reasonable time after notice.” In other
Section 101.060(a)(2) simply provides for “notice.” For two reasons, we hold that, before governmental immunity is waived under Section 101.060(a)(2), the governmental unit must either have known or should have known of the condition and that it failed to remedy the condition within a reasonable time after suсh notice. First, in Section 101.022(b), the legislature has stated that the limitation of Section 101.022(a) does not apply to Section 101.060 cases. That limitation is a requirement that actual notiсe be shown. Second, in Section 101.060(a)(3), the legislature provided for “actual notice” in cases involving the removal or destruction of signs, signals, or warning devices by third persons. If the legislature had intended to require proof of actual notice, then it certainly knew how to so provide, but it did not.
State v. Norris,
Similarly,
Kenneally v. Thurn,
Appellant and appellee have cited us to
State v. Burris,
In granting the motion for summary judgment, the trial court did not specify the ground or grounds relied on for the ruling. When reviewing such an order on appeal, the summary judgment will be аffirmed if any of the theories advanced in the motion for summary judgment are meritorious.
Rogers v. Ricane Enterprises, Inc.,
The only grounds raised in the City’s motion was that the obstructed defect was a “premises defect” аs a matter of law and that it either conclusively established that it had no actual knowledge of the condition or, alternatively, that Rob-nett had no evidence of actuаl knowledge. Because we have held that either actual or constructive notice is sufficient notice under Section 101.060(a)(2), before the City could prevail upon its motiоn for summary judgment, the City must have conclusively established that it had neither type of notice. TEX.R.CIV.P. 166a(c). This it did not do. The law generally is that the
The City failеd to conclusively establish that it had no constructive notice of the defect. Therefore, the motion for summary judgment should not have been granted.
The judgment of the trial court is reversed, and the cause is remanded to the trial court.