Anderson v. Anderson County

6 S.W.3d 612, 1999 Tex. App. LEXIS 7229, 1999 WL 786922
CourtCourt of Appeals of Texas
DecidedAugust 31, 1999
DocketNo. 12-98-00299-CV
StatusPublished
Cited by10 cases

This text of 6 S.W.3d 612 (Anderson v. Anderson County) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Anderson County, 6 S.W.3d 612, 1999 Tex. App. LEXIS 7229, 1999 WL 786922 (Tex. Ct. App. 1999).

Opinion

JIM WORTHEN, Justice.

Donald Anderson, Theresa McGehee and Jerry McGehee (“Appellants”) filed suit against Appellees Anderson County, the State of Texas and the Texas State Department of Highways and , Public Transportation (collectively “Appellees”) under the Texas Tort Claims Act.1 The trial court granted summary judgment for Appellees. Appellants allege in a single issue that the trial court erred in granting summary judgment because Appellees breached their duty to warn of a special defect or condition which obstructed Appellants’ view of a stop sign. We will affirm.

I. BACKGROUND

On April 5, 1997, Jerry McGehee was traveling north on Anderson County Road 420 in a pickup truck pulling a trailer. McGehee failed to stop at a stop sign before crossing the intersection of county road (“C.R.”) 420 and farm-to-market road (“PM”) 320. As he drove through the intersection of these two roads, a westbound car struck him. Alleging vegetation obscured the stop sign, Appellants filed suit against Appellees seeking to recover under the Texas Tort Claims Act for their injuries. Appellees sought summary judgment alleging that under the Texas Tort Claims Act, they were immune from prosecution because they owed Appellants no duty. The trial court granted summary judgment for Appellees without specifying the ground or grounds upon which it relied.

[614]*614II. Standard of Review

To prevail on a summary judgment motion, a movant must establish that no genuine issue about any material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995) (per curiam). The standard for reviewing a summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746 (Tex.1999). A defendant who conclusively establishes all the elements of an affirmative defense, such as sovereign immunity, is entitled to a summary judgment. Cathey, 900 S.W.2d at 341; Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). In reviewing a summary judgment, we must accept as true evidence in favor of the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant’s favor. KPMG Peat Marwick, 988 S.W.2d 746; Nixon v. Mr. Property Management Co., 690 S.W.2d 646, 548-49 (Tex.1985). When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for its ruling, an appellate court will affirm a summary judgment if any of the theories advanced in the motion are meritorious. Bradley v. State ex rel. White, 990 S.W.2d 245 (Tex.1999).

III. Appellees’ Duty, if Any, to Appellants

In a single issue, Appellants argue that the trial court erred in granting summary judgment in favor of Appellees and dismissing all of their claims in their entirety with prejudice. They argue that summary judgment should have been denied because the overgrowth of vegetation on the right-of-way constituted a special defect because it obscured a stop sign at the intersection of C.R. 420 and FM 320, and because Appellees did not warn the driving public of the condition or malfunction of the stop sign as they were statutorily required to do. They further contend that Appellees breached their duty to warn of the stop sign that they allege was not visible due to the overgrowth of vegetation.

Duty is a threshold question in a tort case. To establish liability, Appellants must prove the existence and violation of a duty owed to them by Appellees. City of Denton v. Van Page, 701 S.W.2d 831, 834 (Tex.1986). The existence of a duty is a question of law. Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex.1990).

The Texas Tort Claims Act provides that a governmental unit in this state is liable for “personal injury and death so caused by a condition or use of ... 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).2 The State, the Department and the County are all governmental units. Tex. Civ. PRAC. & Rem.Code Ann. § 101.001(3)(Vernon Supp.1999). The general standard of care a governmental unit owes as an owner or occupier of realty is that owed to a licensee, i.e., the duty not to injure the licensee through willful, wanton, or grossly negligent conduct. Tex. Civ. PRAC. & Rem.Code Ann. § 101.022(a) (Vernon 1997); City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex.1997). Subsection (b), however, provides that this limitation of duty 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 to warn of the absence, condition or malfunction of traffic signs, signals or warning devices as is required by section 101.060.”3 Tex. Civ. [615]*615Prac. & Rem.Code Ann. § 101.022(b) (Vernon 1997).

A. Duty op the State and Department

Neither the State nor the Department had any duty to the Appellants arising out of the alleged vegetation or overgrowth obscuring the stop sign at issue. The summary judgment evidence showed that the stop sign and the alleged overgrowth were located on the county right-of-way and not on the State’s premises. County Road 420 was not part of the state highway system, and the State had not undertaken responsibility for trimming vegetation on the county right-of-way. Thus, even if the State or the Department had been given notice of the vegetation on the stop sign, neither was a “responsible governmental unit” under section 101.060, and thus, neither was obligated to warn of the alleged defect or condition under section 101.022(b). Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.022(b) and 101.060 (Vernon 1997).

B. Duty of the County

Accepting as true Appellants’ assertion that the stop sign, which was erected on Anderson County’s right of way, was covered by vegetation, we must determine whether the County owed Appellants any duty with regard to this hazard, and if so, whether that duty was violated. As explained below, the County will have owed Appellants a duty only if the vegetation-covered sign constituted a “special defect” or “condition” under section 101.022(b).

When a special defect exists, the responsible governmental unit owes users of a roadway a higher standard of care, ie.,

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6 S.W.3d 612, 1999 Tex. App. LEXIS 7229, 1999 WL 786922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-anderson-county-texapp-1999.