State Department of Highways & Public Transportation v. Payne

838 S.W.2d 235, 1992 WL 233650

Opinions

OPINION ON MOTION FOR REHEARING

HECHT, Justice.

On motion for rehearing, our opinion of September 11, 1991, is withdrawn, and the following is now the opinion of the Court.

Kenneth Payne and his wife sued the State Department of Highways and Public Transportation to recover damages for injuries which he sustained when he walked off the end of a culvert built and maintained by the State. A jury found that Payne’s injuries were caused 60% by the negligence of the State and 40% by his own negligence, and the trial court rendered judgment in Payne’s favor for $148,800 plus interest. The court of appeals affirmed. 781 S.W.2d 318 (Tex.App.1989). The two principal issues now before us are first, whether the trial court held the State to a higher standard of care than that imposed by section 101.022 of the Texas Tort Claims Act, Tex.Civ.Prac. & Rem.Code § 101.022, and thus failed to submit the controlling question of fact to the jury, and second, whether the State has preserved this complaint for appeal. We answer both issues in the affirmative, and consequently reverse the judgment of the court of appeals and render judgment that Payne take nothing.

I

Payne’s injury occurred before sunrise one morning as he walked from his home in the country across a two-lane paved road toward a deer blind he had constructed in a field. A culvert ran perpendicular to and beneath the road, ending about 22 feet from the roadbed on the deer blind side. In the dark, Payne stepped off the culvert and fell about 12 feet into a drainage ditch, sustaining injuries. Although Payne knew there was a culvert near where he was walking, he claimed that he did not see where it ended that morning because vegetation obscured it and a reflective marker was missing.

Payne alleged in his pleadings that the culvert was both a special defect and a premise defect; the State denied that the culvert was a defect of any kind. If the culvert was a premise defect, the State owed Payne the same duty a private landowner owes a licensee. Tex.Civ.Prac. & Rem.Code § 101.022(a);¹ State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, 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. Id.; see Restatement (Second) of Torts § 342 (1965). If the culvert was a special defect, the State owed Payne the same duty to warn that a private landowner owes an invitee. Tex.Civ.Prac. & Rem.Code § 101.022(b);² Harris County v. Eaton, 573 S.W.2d 177, 180 (Tex.1978). That duty requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware.

The elements of proof required to establish a breach of these two duties, absent willful, wanton or grossly negligent conduct which Payne did not plead or attempt to prove, may be compared as follows.

To establish liability—

a licensee must prove that:

(1) a condition of the premises created an unreasonable risk of harm to the licensee;

(2) the owner actually knew of the condition;

(3) the licensee did not actually know of the condition;

(4) the owner failed to exercise ordinary care to protect the licensee from danger;

(5) the owner’s failure was a proximate cause of injury to the licensee. Tennison, 509 S.W.2d at 561; see Restatement (Second) of Torts § 342 (1965).

an invitee must prove that:

(1) a condition of the premises created an unreasonable risk of harm to the invitee;

(2) the owner knew or reasonably should have known of the condition;

(3) the owner failed to exercise ordinary care to protect the invitee from danger;

(4) the owner’s failure was a proximate cause of injury to the invitee.

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983); Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454-455 (Tex.1972); see Restatement (Second) of Torts § 343 (1965).

There are two differences between these theories. The first is that a licensee must prove that the premises owner actually knew of the dangerous condition, while an invitee need only prove that the owner knew or reasonably should have known. The second difference is that a licensee must prove that he did not know of the dangerous condition, while an invitee need not do so.

In this case, the State built the culvert and thus knew of its existence. That element under either theory of liability is not in dispute. Nor do the parties dispute that Payne knew of the existence of the culvert.

The point of contention is whether Payne knew the culvert was in his path as he walked through the undergrowth in the dark. After all, Payne argues, he would hardly have stepped off the edge and fallen twelve feet to serious injury had he known, or had he been adequately warned, that the culvert was in front of him. But, the State responds, he nevertheless knew that the culvert was there somewhere, and his knowledge precludes imposition of liability on the State unless the culvert was a special defect. Both parties introduced evidence regarding Payne’s knowledge of the location of the culvert.

At the close of the evidence the trial court gave the jury a charge which asked two liability questions. The first question inquired whether Payne’s or the State’s negligence was a proximate cause of the occurrence. The second question asked what percentage of such negligence was attributable to each. In addition to the standard definitions of negligence, proximate cause and ordinary care, the trial court gave the jury the following instructions:

“GOVERNMENTAL LIABILITY”: A governmental unit in the state is liable for personal 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.

“DUTY OWED: SPECIAL DEFECT”: Where there is a special defect such as an excavation or obstruction on or adjacent to a highway, road, or street or where there is the absence or malfunction of a traffic sign, signal or warning device that is required by law, the governmental unit owes to the plaintiff a duty to warn of such special defect.

The duty owed is a duty to use ordinary care to either warn of a dangerous condition or to make such dangerous condition reasonable safe, provided the governmental unit had knowledge of the dangerous condition, or through the exercise of ordinary care, should have had knowledge of the dangerous condition.

“DANGEROUS CONDITION” means a condition other than normally connected with the use of the roadway, excavation or obstruction, and a person using ordinary care could not encounter such condition with safety.

The State’s complaint is that the jury charge erroneously assumed that the culvert was a special defect and did not submit Payne’s premise defect liability theory to the jury. Specifically, the State complains that the charge does not request the jury to find whether Payne knew of the location of the culvert at the time of his accident.

In effect, the trial court determined that the culvert was a special defect as a matter of law. The court of appeals agreed. 781 S.W.2d at 322. To the extent they treated the issue as a question of law rather than of fact, both courts were correct. Whether a condition is a premise defect or a special defect is a question of duty involving statutory interpretation and thus an issue of law for the court to decide. Eaton, 573 S.W.2d at 179-80; see also Blankenship v. County of Galveston, 775 S.W.2d 439, 441-42 (Tex.App.—Houston [1st Dist.] 1989, no writ). However, both courts incorrectly determined the status of the culvert.

Special defects are excavations or obstructions on highways, roads, or streets. Tex.Civ.Prac. & Rem.Code § 101.-022(b); see Eaton, 573 S.W.2d at 179. These examples set forth in the statute itself all present an unexpected and unusual danger to ordinary users of roadways.³

The culvert in this case was not a special defect. The end of the culvert was located far enough from the paved surface that vehicular passengers and other normal users of the roadway were unlikely to encounter it. Payne, unlike an ordinary user of the road, was walking perpendicular to the paved surface into the adjacent field. Only such a pedestrian, whose destination required him to leave the proximity of the road, was ever likely to fall off the end of the culvert. If there was a defect, it was in the field where Payne was walking. The State’s duty of care with respect to such a defect is covered by the ordinary rule for premise defects under section 101.022(a).

II

Payne nevertheless argues that the State has not preserved its complaint that the trial court erred in refusing to inquire of the jury concerning his knowledge of the culvert. The State’s sole objection to the charge was that the “Duty Owed” paragraph quoted above “constitutes a comment upon the weight of the evidence and amounts to an instruction to the jury that there is, in fact, a special defect, removes that issue from the province of the jury and keeps from it being a fact issue as it should be.” Payne argues that this objection was not sufficiently clear to call to the trial court’s attention the State’s complaint that the culvert should not have been assumed to be a special defect. This argument is rather dubious in the circumstances of this case. The trial court’s failure to submit Payne’s premise liability theory could hardly have been an oversight. The very fact that it included instructions concerning special defects in the charge indicates that the trial court decided that the culvert was a special defect and not a premise defect. Furthermore, the trial court had allowed the parties to present evidence and argument concerning Payne’s knowledge, which would have been irrelevant if the culvert was a special defect. The trial court was certainly aware that the issue was disputed.

Even if the State’s objection was insufficient, the State preserved error by requesting the trial court to inquire of the jury concerning Payne’s knowledge of the culvert. Morris v. Holt, 714 S.W.2d 311 (Tex. 1986). Specifically, the State requested the trial court to include the following question in the charge:

Do you find from a preponderance of the evidence that Kenneth Herschel Payne had actual knowledge that the culvert was at the location in question on F.M. 1301?

Although this question places the burden of proof on the State rather than on Payne where it belongs, Payne can hardly complain. The trial court’s refusal to ask the question requested by the State constituted a clear refusal to submit a premise defect theory to the jury.⁴

We do not suggest, of course, that the trial court should have submitted the case to the jury on specific questions rather than broad-form questions, as required by Rule 277, Tex.R.Civ.P. The issue is not whether the trial court should have asked the jury the specific question requested by the State; rather, the issue is whether the State’s request called the trial court’s attention to the State’s complaint that no premise liability theory was submitted to the jury sufficiently to preserve that complaint for appeal. The State’s requested question clearly called the trial court’s attention to the State’s complaint because it was the sole element of premise defect liability missing from the charge. Payne appears to argue that the State would have preserved error if it had plainly objected: “The charge submits only a special defect theory and not a premise defect theory.” The State’s request is clearer than such an objection because it calls attention to the very element of the premise defect theory omitted from the charge. The request not only objects to the omission of the theory, it suggests the missing language necessary to correct the omission. The trial court should have included the missing element in its broad-form submission in an appropriate manner.

We have received two amicus briefs concerning the proper method for preserving a complaint about the jury charge, like the State’s complaint in this case. In our State’s procedural jurisprudence, there are no rules more recondite than those pertaining to the preparation of the jury charge. As Professor McDonald observed forty years ago: “No aspect of procedure has developed a greater tangle of perplexities than that which embraces the rules as to the charge of the court to the jury.” 3 Roy W. McDonald, Texas Civil Practice In District And County Courts § 12.01, at 222 (Frank W. Elliott ed., 1983). The passage of time has not improved things. Dozens of cases decided since Professor McDonald wrote, many of them flatly contradictory, attest to myriad uncertainties in preserving complaints of error in the jury charge. The rules governing charge procedures are difficult enough; the caselaw applying them has made compliance a labyrinth daunting to the most experienced trial lawyer. Today, it is fair to say that the process of telling the jury the applicable law and inquiring of them their verdict is a risky gambit in which counsel has less reason to know that he or she has protected a client’s rights than at any other time in the trial.

The preparation of the jury charge, coming as it ordinarily does at that very difficult point of the trial between the close of the evidence and summation, ought to be simpler. To complicate this process with complex, intricate, sometimes contradictory, unpredictable rules, just when counsel is contemplating the last words he or she will say to the jury, hardly subserves the fair and just presentation of the case. Yet that is our procedure. To preserve a complaint about the charge a party must sometimes request the inclusion of specific, substantially correct language in writing, which frequently requires that even well prepared counsel scribble it out in longhand sitting in the courtroom. The rules of procedure require that the judge endorse each request with specific language, although sometimes this requirement is ignored. Sometimes a request is not sufficient and may not even be appropriate; instead, counsel must object. The objection must be specific enough to call the court’s attention to the asserted error in the charge. It is not clear whether a request will serve as an objection or an objection as a request. Rather than attempt to decide under the pressure of the courtroom and in peril of losing appellate rights, whether an objection or a request is called for, cautious counsel might choose to do both in all cases — request and object. But if they are not kept separate, or if an appellate court later decides that the duplication obscured the real complaint, counsel’s precaution may still result in a decision that the complaint was waived.

The procedure has been further complicated by our adoption of broad issue submission, a change intended to have the opposite effect. When special issue practice flourished in Texas, it was easier to determine which party had responsibility for submission of a particular matter to the jury, and which party had the obligation to object to misstatements in order to preserve error. That practice, however, had a host of troubles of its own, causing this Court to reject it in the last decade in favor of broad form submission. Now, however, it is impossible to determine which party has responsibility for each part of a charge. Because many instructions in a broad form charge bear upon elements of proof not easily divisible among the parties, it is hard to know who should complain. Recently it was argued before this Court that a party who objected to any submission at all of an issue proposed by his opponent, waived that objection if, alternatively, he proposed different language more favorable to his position. The process is becoming worse, not better.

The flaws in our charge procedures stem partly from the rules governing those procedures and partly from caselaw applying those rules. Last year we asked a special task force to recommend changes in the rules to simplify charge procedures, and amendments are under consideration. Rules changes must await the completion of that process; we do not revise our rules by opinion. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex.1992). We can, however, begin to reduce the complexity that caselaw has contributed to charge procedures. The procedure for preparing and objecting to the jury charge has lost its philosophical moorings. There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. The more specific requirements of the rules should be applied, while they remain, to serve rather than defeat this principle. In this case, the State clearly met this test.

* * * * * *

Payne was not entitled to recover on his special defect theory as a matter of law. To prevail on his premise defect theory, Payne was required to obtain a finding that he lacked knowledge of the culvert. This element of his claim was not included in the broad-form charge which the trial court submitted to the jury.⁵ A finding on this one element cannot be deemed in Payne’s favor because the State objected to the omission by requesting a jury question on that issue. Tex.R.Civ.P. 279; Morris, 714 S.W.2d 311, 312-13. Thus, the verdict does not support a judgment in Payne’s favor.

Accordingly, the judgment of the court of appeals is reversed, and judgment is rendered that Payne take nothing.

Dissenting opinion by MAUZY, J., joined by DOGGETT and GAMMAGE, JJ.

1

. “If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.”

2

. "The limitation of duty in this section shall 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

. In analyzing a variety of fact patterns, of course, the courts of our state have recognized that conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road. See, e.g., Chappell v. Dwyer, 611 S.W.2d 158, 161 (Tex.Civ. App. — El Paso 1981, no writ) (condition created by thick brush hiding an arroyo running alongside road with an unmarked break in the brush appearing to be an intersecting road); Andrews v. City of Dallas, 580 S.W.2d 908, 911 (Tex.Civ. App. — Eastland 1979, no writ) (base of traffic signal located six inches from the road); City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex.Civ. App. — Houston [1st Dist.] 1974, writ refd n.r.e.) (unmarked termination of dead-end street four feet from ditch). Whether on a road or near one, however, conditions can be “special defects such as excavations or obstructions on highways, roads, or streets” only if they pose a threat to the ordinary users of a particular roadway.

Only two courts have found a special defect when the defect did not present a hazard to the ordinary users of a roadway. See City of Austin v. Cooksey, 561 S.W.2d 874 (Tex.Civ.App. — East-land), reversed on other grounds, 570 S.W.2d 386 (Tex. 1978) (improperly secured light pole near an excavation site); Harris County v. Dowleam, 489 S.W.2d 140, 147 (Tex.Civ.App. — Houston [14th Dist.] 1972, writ refd n.r.e.) (loose wall panel at courthouse). Both of these cases, however, preceded this court’s decision in Eaton, and, to the extent they classify as "special” a defect that is not like an excavation or obstruction on a roadway, we disapprove of them.

4

. The issue of Payne’s knowledge of the location of the culvert is not merely a "phase or shade" of the broad question of the State’s liability, as the dissent argues. Rather, it is a key issue in dispute in the case. Nor would a Ending that Payne knew of the culvert’s location have conflicted with a finding that the State was negligent, as the dissent argues. Rather, such a finding would simply have precluded liability.

5

. The transcript does not reveal whether Payne requested that these elements of his claim he submitted to the jury. If he had requested them in substantially correct form, it would have been error for the trial court to refuse to submit them. Tex.R.Civ.P. 278. If any such error occurred, however, Payne has waived it because he can not demonstrate from the record that he requested submission of these elements.