Brazoria County v. Davenport

780 S.W.2d 827, 1989 Tex. App. LEXIS 2493, 1989 WL 116639
CourtCourt of Appeals of Texas
DecidedOctober 5, 1989
Docket01-88-00734-CV
StatusPublished
Cited by29 cases

This text of 780 S.W.2d 827 (Brazoria County v. Davenport) 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
Brazoria County v. Davenport, 780 S.W.2d 827, 1989 Tex. App. LEXIS 2493, 1989 WL 116639 (Tex. Ct. App. 1989).

Opinions

OPINION

EVANS, Chief Justice.

Brazoria County (“the County”) appeals from a final judgment in favor of Kathy Davenport in a personal injury action brought under the Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code Ann. sec. 101.-001 et seq. (Vernon 1986).

The undisputed facts show that in December 1984, Mrs. Davenport, who was approximately seven months pregnant, slipped and fell on a County-owned sidewalk outside a prenatal clinic on County premises. There was evidence that the slippery condition of the sidewalk resulted from an accumulation of water, mud, and slime on the sidewalk, which was caused by a leak from a rusted water line, and that the County had been aware of this dangerous condition for some time.

Under the Texas Tort Claims Act, sec. 101.022, when a claim is based on a “premises defect,” a governmental unit is liable for ordinary negligence only if the plaintiff has paid for the use of the premises. In this case, the jury found that Mrs. Davenport had not paid for the use of the prenatal clinic, and because of that finding, the jury did not answer the ordinary negligence issues. Accordingly, this appeal relates only to the jury’s findings on gross negligence.

The jury found that the County’s conduct was grossly negligent in the following ways:

(1) In failing to eliminate the slippery condition;

(2) In failing to provide barricades to prevent traversing the slippery condition;

(3) In failing to conduct periodic maintenance inspections on the water line in question; and

(4) In failing to warn Mrs. Davenport of the slippery condition.

The jury also found that these acts and omissions were a proximate cause of the accident, and that the substance on the county sidewalk created a dangerous condition, i.e., one presenting an unreasonable risk of harm.

The jury further found that the County had actual knowledge of the dangerous condition. But the jury failed to find that Mrs. Davenport lacked actual knowledge of the peril.

In response to the damage issues, the jury awarded $15,000 for past physical pain [829]*829and mental anguish, $4,500 for loss of past earnings, and $1,000 for past medical care. The jury awarded nothing for future physical pain and mental anguish, for past or future physical impairment, for future loss of earning capacity, or for future medical care. The court entered judgment on the jury’s verdict, and the County brings this appeal.

In its first three points of error, the County contends only that there was no evidence to support the jury’s findings of gross negligence.

In reviewing these no evidence points, we have considered only the evidence and inferences therefrom that tend to support the jury’s verdict and have disregarded all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). However, in reviewing the record to determine whether there is some evidence to support the jury’s finding of gross negligence, we have considered all of the surrounding facts, circumstances, and conditions, not just individual elements or facts. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981).

Gross negligence has been defined as “that entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the rights or welfare of the persons affected by it.” Missouri Pac. Ry. v. Shuford, 72 Tex. 165, 170, 10 S.W. 408, 411 (1888); see Burk Royalty Co., 616 S.W.2d at 920.

In order to support a finding of gross negligence, there must be some showing that the defendant knew about the dangerous condition, but was consciously, i.e., knowingly, indifferent to the rights, welfare, or safety of persons affected by it. Thus, ordinary negligence becomes gross negligence only when a defendant’s acts or omissions show that he knew of the danger and did not care enough to remedy it. Burk Royalty Co., 616 S.W.2d at 922. Because a defendant’s mental state may be inferred from a combination of facts and circumstances, a finding of gross negligence need not rest on a single act or omission. All surrounding facts and circumstances that bear on the defendant’s state of mind must be examined to determine whether there is legally sufficient evidence to support a finding of conscious indifference. Id. In making that decision here, we consider all evidence in the light most favorable to the jury’s findings. Id.

The evidence shows that Mrs. Davenport, along with approximately 20 other pregnant women who were patients at the prenatal clinic, was following a nurse to a side entrance of the clinic. The women, who were being led by the nurse, were walking in a double line down the sidewalk when the accident occurred. Although the sidewalk was about 10 feet wide, a trash can obstructed a portion of the sidewalk, leaving only some 2½ feet of unobstructed walkway between the wall and a pool of accumulated water that encroached upon the sidewalk. According to Mrs. Davenport, this left barely enough room for two persons to walk abreast. As Mrs. Davenport tried to avoid stepping into the pool of water, she slipped on some “slime and mud” that had formed at the edge of the water on the sidewalk.

The pool of water on and adjacent to the sidewalk was a result of water leaking from a badly rusted water line. The County’s building superintendent admitted that he knew of the rusted pipe and of the standing water. He also knew it encroached on the sidewalk in front of the prenatal clinic, where numerous pregnant women visited on a regular basis. He said the County, on five separate occasions, had temporarily patched individual leaks in the pipe, but water continued to leak from the pipe and to stand on the grass and sidewalk. He admitted that the only proper way to remedy the condition was to replace the rusted metal pipe with plastic PVC pipe. He said the County had been aware that the rusted metal pipe needed replacement and had planned to do so. As early as 1983, when he first began working for the County, PVC pipe had been obtained to replace the rusted pipe. But, before Mrs. Davenport’s accident, the County had made no effort to replace the rusted pipe.

[830]*830The record contains no evidence showing that the County ever erected any warning signs or barricades to prevent injury from the dangerous condition. Neither is there any showing that the County made regular inspections of the area in an effort to remedy the problem. Indeed, the superintendent explained there was no reason to try to “mop up” or to clean up the standing water, because there was just too much of it. As the superintendent admitted, the County’s solution was simply to let the water evaporate.

There was also testimony that clinic employees had reported the problem to the maintenance department on at least two prior occasions. In essence, the evidence reflects that the County was aware of the problem and did nothing to correct it until after Mrs. Davenport’s accident.

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Cite This Page — Counsel Stack

Bluebook (online)
780 S.W.2d 827, 1989 Tex. App. LEXIS 2493, 1989 WL 116639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brazoria-county-v-davenport-texapp-1989.