Harris County v. Demny

886 S.W.2d 330, 1994 WL 442752
CourtCourt of Appeals of Texas
DecidedSeptember 22, 1994
Docket01-93-00947-CV
StatusPublished
Cited by27 cases

This text of 886 S.W.2d 330 (Harris County v. Demny) 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
Harris County v. Demny, 886 S.W.2d 330, 1994 WL 442752 (Tex. Ct. App. 1994).

Opinions

OPINION

COHEN, Justice.

Harris County appeals from a jury verdict in favor of appellee, Robyn Lynn Wilson Demny, in her negligence suit. We affirm.

On March 24, 1989, appellee was a passenger in a car headed south on Airline Drive. She suffered severe injuries when the car struck a car leaving the Pin Oak Mobile Home Park at Airline Drive.

Before the accident, Harris County had begun a reconstruction project to widen Airline Drive by replacing a bridge adjacent to the Pin Oak Mobile Home Park. After the bridge was completed, the manager of Pin Oak notified the County that its headwall blocked the view of drivers leaving the mobile home park. In January 1989, the County modified the headwall by cutting part of it down. This accident occurred two months later.

Appellee alleged the County negligently failed to make safe or warn of the dangerous condition at that intersection. The jury found the County negligent, assessed it 30 percent of the causation, and the court entered judgment accordingly.

In its first three points of error, the County complains of errors in the jury charge.1

The trial judge has wide discretion to provide explanatory instructions and definitions necessary to enable the jury to render a verdict. K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632, 636 (Tex.App.—Houston [1st Dist.] 1984, writ refd n.r.e.). We consider only whether the trial judge acted arbitrarily and do not substitute our judgment for the trial judge’s. Id. Jury charge error is reversible only if it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App.P. 81(b)(1).

The judge submitted the following general definition of negligence:

“Negligence” means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

This definition does not include the elements of premises liability, the theory under which appellee sued the County. The County contends it was entitled to the following definition:

Negligence by Harris County ... is the failure to use ordinary care to make reasonably safe or adequately warn of a dangerous condition which Harris County ... created or had actual knowledge of.

The County’s liability, however, was not premised on the general definition of negligence; that definition was included for other defendants in the case. Instead, the County’s liability was premised on the following jury question:

With respect to the condition of the intersection, Defendant Harris County was negligent if—
a. the condition posed an unreasonable risk of harm, and
[333]*333b. Harris County had actual knowledge of the danger, and
c. Robyn Demny did not have actual knowledge of the danger, and
d. Harris County failed to adequately warn Robyn Demny of the condition or make the condition reasonably safe.
Answer “Yes” or “No” for each of the following: Harris County, Fidelia Munoz, Belinda Kay Demny, Tamborello Engineering, Inc., Pin Oak Mobile Home Park, Howard, Needles, Tammen & Bergendoff.

This question contains the elements of premises liability. Therefore, the judge did not abuse his discretion by refusing the County’s proposed definition.

The County also contends it was entitled to the following definition of a dangerous condition:

You are instructed that the term “dangerous condition [sic] as used in this charge means a condition that poses an unreasonable risk of harm to a user of the roadway in question. You are also instructed that a condition that is open and obvious is not a “dangerous condition.”

Similar language was contained in the question on the County’s negligence. In order to find the County negligent, the jury was required to find that the condition “posed an unreasonable risk of harm.” Therefore, it cannot be said that the judge abused his discretion by refusing to submit the County’s proposed definition.

Finally, the County contends the judge improperly instructed the jury on its duty to warn of or make safe a dangerous condition. As stated above, in order to find the County negligent, the jury was required to find that:

c. Robyn Demny [appellee] did not have actual knowledge of the danger, and
d. Harris County failed to adequately warn Robyn Demny [appellee] of the condition or make the condition reasonably safe.

(Emphasis added). The County contends the proper question was not whether appellee had actual knowledge and was not adequately warned, but instead whether “the user of the roadway” had actual knowledge and was not adequately warned. The County contends that only the car’s driver was a “user of the roadway,” and that appellee was not a “user of the roadway” because she was a passenger, not the driver.

The County cites no case holding that a passenger is not a user. Moreover, no evidence showed that the driver either knew of the danger or had been warned of it by the County. We hold that a passenger like appellee is a “user of the roadway.” Therefore, the judge did not abuse his discretion by refusing to submit the County’s proposed instruction.

We overrule the County’s first three points of error.

In its fourth and fifth points of error, the County contends there was no evidence either that there was a dangerous condition or that the County knew there was a dangerous condition.

In reviewing the denial of an instructed verdict, we consider all the evidence in the light most favorable to the nonmovant, and disregard all evidence to the contrary. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). Every reasonable inference is resolved in favor of the nonmovant. Id. If there is any conflicting evidence of probative value on any theory of recovery, the issue must go to the jury. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1982).

1. Evidence of a Dangerous Condition

Appellee presented expert testimony from Stuart Hinton, Irvin Carl Mattick, and Jarvis Michie on the issue of whether the intersection was a dangerous condition.

Stuart Hinton, an accident reconstruction expert, testified as follows:

Q: If you had to characterize this intersection, what would you call it?
A: It’s extrahazardous, as far as I’m concerned. I mean, it’s — it’s just a matter of time as far as accidents occurring there.
[[Image here]]
Q: Do you think this intersection is dangerous?
A: In my opinion, yes, sir.

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Bluebook (online)
886 S.W.2d 330, 1994 WL 442752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-county-v-demny-texapp-1994.