Brownsville Navigation District v. Izaguirre , 829 S.W.2d 159 ( 1992 )

OPINION

HECHT, Justice.

We limit our consideration of this case to a single issue: whether an unreasonably dangerous condition of leased premises caused the death of the lessee’s employee so that the lessor may be held liable. We conclude that there is no evidence of such a condition.

Brownsville Navigation District leased Fosforo, Inc. unimproved land on which Fosforo built and operated a warehouse. On the occasion in question, a trailer obtained from MOPAC¹ was backed up to the warehouse dock to be loaded with cargo for shipment. The trailer was disconnected from its tractor, its front end resting on its extendable supports. A board was placed under the front supports to keep them from sinking into the ground, soft and muddy from recent rains. While the trailer was being loaded, the board broke, the trailer fell to one side, and the cargo shifted, crushing and killing Epigmenio Iza-guirre, a Fosforo employee working inside the trailer. A similar accident had occurred five years earlier at another location owned by the District.

Izaguirre’s wife and children brought this wrongful death action against the District, MOPAC and others. A jury assessed damages totalling $2,612,000 and assigned responsibility for the accident 25% to the District, 35% to MOPAC, and 40% to another defendant which settled, together with several other defendants, prior to trial for $1 million. The District and MOPAC elected a percentage credit for the settlement amount, and the trial court rendered judgment on the verdict against them jointly and severally. The trial court limited the District’s liability under the Texas Tort Claims Act to $100,000. Tex.Civ.Prac. & Rem.Code § 101.023(b).²

MOPAC and the District appealed. The court of appeals affirmed the judgment against the District on two grounds: first, that the District as lessor failed to warn of a dangerous condition of the premises unknown to the lessee Fosforo that made it unsafe to load trailers there; and second, that the District had a duty to warn Fosfo-ro of the prior accident and failed to do so. 800 S.W.2d 244. On the record before us, a judgment against the District cannot rest on either ground.

As a general rule, “a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.” Restatement (Seoond) of Torts § 356 (1965) [hereinafter Restatement]. To meet this rule, plaintiffs argue that the dangerous condition of the premises which existed when Fosforo took possession and later caused Izaguirre’s death was the ground itself, which, like most ground, turned to mud in the rain. Plaintiffs do not contend that the ground was of some unusual composition so that it became extraordinarily soft or muddy in the rain. It was, in plaintiffs' words, "plain dirt”. Plaintiffs’ contention appears to be that the ground should have been surfaced with some harder material which would not have given way in the circumstances of this case. Plain dirt which ordinarily becomes soft and muddy when wet is not a dangerous condition of property for which a landlord may be liable.

The court of appeals determined that this case falls within one of the several exceptions to the general rule, specifically, section 358(1) of the Restatement, which states:

A lessor of land who conceals or fails to disclose to its tenant any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or sublessee for physical harm caused by the condition after the lessee has taken possession, if (a) the lessee does not know or have reason to know of the condition or of the risk that was involved, and (b) the lessor knows or has reason to know of the condition, and realizes or should have realized the risk and has reason to expect that the lessee would not discover the condition or realize the risk.

Again, the only dangerous condition asserted by plaintiffs in this case is that the ground became soft and muddy when wet, like any ordinary dirt. This is not a condition “which involves unreasonable risk of physical harm to persons on land”, nor is it a condition of which Fosforo would not know, or at least not have reason to know. The District is not liable for Izaguirre’s death under section 358 of the Restatement.

The second ground of liability upon which the court of appeals relied is that the District breached its duty to warn Fosforo about the prior, similar accident. The court of appeals imposed the duty to warn on the District based upon the testimony of a managerial employee, the deputy director of the Port of Brownsville, that had he known of the prior accident, he would have told Fosforo about it. The witness went on to state, however, that this is only what he, personally, would have done; he denied that it was a standard practice to which the District held itself. This testimony simply reflects the personal concerns of one employee; it does not establish a duty that the District voluntarily undertook and negligently executed. Nor does it provide a legal basis for imposing on the District a duty to warn.

Plaintiffs assert an additional theory of liability on which the court of appeals did not rely. They contend that the District is liable for Fosforo’s actions because it retained general control over the land. Restatement §§ 360-361. Plaintiffs argue that the District retained control by means of the provisions in its lease and its authority to enact ordinances governing the property and its use. The lease does not support plaintiffs’ argument; it contains no provision giving the District the right to control Fosforo’s warehouse operation. While it is possible for the District to have used its governmental power to regulate Fosforo’s business, the District is immune from liability for its discretionary decision to exercise or not to exercise such power. Tex.Civ.PRAc. & Rem.Code § 101.-021. In sum, there is no evidence that the District retained control over the premises so as to be liable for Fosforo’s actions.

Inasmuch as plaintiffs have failed to demonstrate any basis in this record for imposing liability on the District, we grant the District’s application for writ of error and without hearing oral argument, reverse the judgment of the court of appeals as it pertains to the District, and render judgment that plaintiffs take nothing against the District. Tex.R.App.P. 170. MOP AC’s application for writ of error is denied, and the judgment against it remains undisturbed.

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

1 . MOPAC refers collectively to Missouri Pacific Railroad Company and Missouri Pacific Truck Lines.

2 . “Liability of a unit of local government under [the Tort Claims Act] is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death-”