Wildermuth v. Parker County

1 S.W.3d 705, 1999 Tex. App. LEXIS 4999, 1999 WL 459800
CourtCourt of Appeals of Texas
DecidedJuly 8, 1999
DocketNo. 2-98-393-CV
StatusPublished
Cited by7 cases

This text of 1 S.W.3d 705 (Wildermuth v. Parker 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
Wildermuth v. Parker County, 1 S.W.3d 705, 1999 Tex. App. LEXIS 4999, 1999 WL 459800 (Tex. Ct. App. 1999).

Opinion

OPINION

JOHN CAYCE, Chief Justice.

This summary judgment appeal requires us to decide whether small trees and brush along a county road in Parker County, Texas, constitutes a special defect under the Texas Tort Claims Act (the Act). We hold that such a condition is not a special defect under the facts of this case and will affirm.

BACKGROUND

On July 14,1994, Kevin Wildermuth was driving his pick-up truck southbound on Old Agnes Road, County Road 1009 in Parker County, Texas (the County), along with his passengers Christopher Wilder-muth, Stephen Wildermuth, and Jennifer Mansell Ertl (collectively referred to as appellants). While rounding a curve, Kevin’s truck collided head-on with a northbound pick-up truck driven by William Gene Pope traveling on the left side of the road. All of the occupants in Kevin’s truck were injured. Christopher later died from his injuries.

Appellants brought a negligence and premises liability suit against the County alleging, among other things, that small trees and brush along the roadway obstructed both drivers’ view as they rounded the curve and, thus, created an [707]*707unreasonably dangerous condition that constituted a special defect under the Act. Appellants allege that this defect was known to the County, that the County failed to exercise ordinary care to protect appellants from the danger, and that this failure caused the injuries and Christopher’s death.

The County later moved for summary judgment on immunity grounds, asserting that the trees and brush were not a special defect as a matter of law. After a hearing, the trial court granted summary judgment in favor of the County.

STANDARD OF REVIEW

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex.1996); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the mov-ant. See Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. See Great Am., 391 S.W.2d at 47.

The summary judgment will be affirmed only if the record establishes that the mov-ant has conclusively proved all essential elements of the movant’s cause of action or defense as a matter of law. See City of Houston, 589 S.W.2d at 678.

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. See Friendswood Dev. Co., 926 S.W.2d at 282. To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

DID THE SMALL TREES AND BRUSH INSIDE THE CURVE ON THE ROAD CONSTITUTE A SPECIAL DEFECT?

In their sole point on appeal, appellants argue that the County is not immune from suit because the small trees and brush along the inside of the curve where the accident occurred constituted a special premises defect under the Act.

Consideration of any tort claim against a governmental entity must begin with sovereign immunity. This immunity is waived under the Act, but only to the extent that liability is created by the Act. See Dobbins v. Texas Turnpike Auth., 496 S.W.2d 744, 748 (Tex.Civ.App.—Texarkana 1973, writ ref'd n.r.e.). Specifically, the Act provides that the State is liable for a “personal injury ... caused by a condition or use of ... real property if the governmental unit would, were it a private person, be liable to the claimant.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 1997). The Act’s section 101.022 goes on to limit liability when the claim involves a regular premises defect, but does not extend this liability protection to “special” premises defects:

[708]*708(a) 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.
(b) 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[.]

Id. § 101.022.

Whether a condition is a special defect is a question of law to be determined on a case-by-case basis. See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992) (op. on reh’g). The Act defines a special defect as “obstructions on highways, roads, or streets.” Tex. Civ. Pra.c. & Rem.Code Ann. § 101.022(b). Courts have consistently interpreted the definition to require “an unexpected and unusual danger to ordinary users of roadways.” State v. Burris, 877 S.W.2d 298, 299 (Tex.1994); see, e.g., State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex.1993). Furthermore, a special defect is one that is “distinguished by some unusual quality” or “being other than the usual.” State v. Williams, 932 S.W.2d 546, 550 (Tex.App.—Tyler 1995), writ denied, 940 S.W.2d 583 (Tex.1996).

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