texas-department-of-transportation-v-jimmy-don-york-individually-and-on ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00210-CV

Texas Department of Transportation,

                                                                                    Appellant

 v.

Jimmy Don York, Individually and on behalf

of the Estate of Rebecca York, Deceased and

James R. Bodiford, Jr., Individually and on

behalf of the Estate of Rebecca York, Tonya

Bodiford, and Shirley Fowler,

                                                                                    Appellees

From the 82nd District Court

Robertson County, Texas

Trial Court No. 04-03-16914-CV

SPECIAL NOTE

            On Friday, August 3, 2007 at 4:02 p.m., a date he knew I was not in the office,[1] Justice Vance sent the following email to me and copied Justice Reyna and others:

Some time back, we agreed to notify you in advance of the issuance of an opinion without your response under the deadlines. 

The Final Response Date for York was August 1, so the opinion will issue as a unanimous opinion on August 8.  (Para. 4.01, "failure to act by [the Final Response Date] constitutes approval of the draft opinion . . . to be issued.")

(Insert and deletions as in original.)  I responded as follows on Monday, August 6, 2007 at 8:29 a.m.:

Bill

This is wrong, on many levels.

Twg

Felipe,

If you empower Bill by voting with him to do this, it is just wrong.  I have spent days in research and drafting but it is not yet complete.  I gave a response, which is still my response if the opinion is going to issue.  And this representation to the public is false.

twg

I received no response from either Justice Vance or Justice Reyna before the opinion was issued on August 8, 2007. Notwithstanding their knowledge that I did not join the opinion, it was issued, and for all intents and purposes would appear to the public and the parties, as if it was a unanimous opinion of this Court.  It is not.

            What is attached as an appendix to this Special Note is the status of my draft and indicates the status of my research at the time I received Justice Vance’s email and sent my response. Because there is no point in concluding it at this juncture, I have attached it to show some of the complexities of the issues that are otherwise being ignored.  It is presented as it then existed with all the warts of a rough draft before and without any editing.  It stops in mid-sentence, as did the draft. 

            With this Special Note, I do not join in the opinion or judgment of the Court, and because I do not know where the research would have led me, I do not know if it would result in a concurring or dissenting opinion.  See Johnson v. Baylor Univ., 188 S.W.3d 296, 311-312 (Tex. App.—Waco 2006, pet. denied) (Special Note by Chief Justice Gray); Jones v. State, 188 S.W.3d 737, 738-739 (Tex. App.—Waco 2006, no pet.) (Special Note by Chief Justice Gray); Tex. Genco, LP v. Valence Operating Co., 187 S.W.3d 118, 125-126 (Tex. App.—Waco 2006, pet. denied) (Special Note by Chief Justice Gray issued Jan. 25, 2006); see also Krumnow v. Krumnow, 174 S.W.3d 820, 830-842 (Tex. App.—Waco 2005, pet. denied) (Special Note by Chief Justice Gray issued Aug. 31, 2005).

                                                                        TOM GRAY

                                                                        Chief Justice

Special Note delivered and filed August 9, 2007

Publish (with the opinion issued August 8, 2007)

APPENDIX

            This case has consumed an inordinate amount of my time.  I have read and studied many cases on the waiver of sovereign immunity in the context of premises liability.  Of particular importance in its application to the facts of this case is the limited extension of the waiver when a licensee has been injured as the result of a special condition.

            What I found of extraordinary interest is how far the case law has strayed from what seems to be the clear structure of the statute.  I tried to reconcile the cases with the statute but could not. While I am bound by the Supreme Court precedent interpreting the statute, which I will discuss in the second part of this opinion, if I were writing on a clean slate, the diagram for the State’s waiver that I would draw would be very different.  In this regard, I will discuss the statute, standing alone, in the first part of this opinion.  And in the third part I will discuss the particular facts of this case. And then I will come to a conclusion applying the facts of this case to the law as defined in the Supreme Court cases interpreting and applying the statute.

PART I

The Statute

            The statute is often cited.  But to appreciate the true simplicity of its design and application, it must be closely studied.  The first relevant statute is the general waiver of sovereign immunity which, generally, each litigant must bring themselves within to successfully sue the State of Texas or a political subdivision of the State. It provides:

§ 101.021.  Governmental Liability

   A governmental unit in the state is liable for:

            (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

                 (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

                 (B) the employee would be personally liable to the claimant according to Texas law; and

            (2) 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.

Tex. Civ. Prac. & Rem. Code § 101.021.

            To boil this statute down to the portions directly applicable to the facts of this case, we have the following:

A governmental unit in the state is liable for . . . personal injury . . . and death so caused by a condition or use of . . . real property if . . . a private person [would] be liable . . . according to Texas law.

Id.  Basically, this makes the State liable like and under the same circumstances as any other property owner (including any other occupier of the property legally responsible for the condition thereof) in the State.

            But recognizing that under the common law, the duty owed by a property owner was dependent upon the circumstances under which the person entered upon the property, and recognizing the difficulty of establishing that status as between a government and the public, the legislature attempted to clarify that status, or more particularly, tried to clarify the duty the State would owe to the public.  This attempt at clarification was by reference to the common law’s terminology of the status of the person when they entered upon the land.  The common law categorized entrants as one of the following:

            1.         Trespasser

            2.         Licensee

            3.         Invitee

            The statute, however, only refers to one of these categories and by doing so seems to establish the lowest duty owed by the State to a member of the public as that duty owed to a licensee.  The duty owed as a premise owner of property is set out, including limitations, as follows:

§ 101.022.  Duty Owed:  Premise and Special Defects

   (a) Except as provided in Subsection (c), 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 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.

   (c) If a claim arises from a premise defect on a toll highway, road, or street, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property.

Acts 1985, 69^th Leg., ch. 959, § 1, eff. Sept. 1, 1985.  Amended by Acts 2005, 79^th Leg., ch. 281, § 2.88, eff. June 14, 2005.

Tex. Civ. Prac. & Rem. Code § 101.022.

            So the basic duty for all property is that owed to a licensee.  § 101.022(a).  But if the claimant paid for the use of the premises, the claimant was not owed the duty of a licensee.  By referring to whether a payment was made for the “use of the premises,” it appears, and has been so construed, that such a claimant is accorded the duty owed an invitee.  [cite]  To avoid invitee status to persons who paid a toll for the use of a road, however, subsection (c) limits the duty owed to that of a licensee.

            The truly interesting provision, and the one which has caused immeasurable uncertainty based on the plethora of cases which have struggled with, is subsection (b).  First, it will be noted that it is phrased as the section being one of limitation – “the limitation of duty in this section.”  It is not at all clear how subsection (a), which is the only other subsection that existed until 2005, limits any duty unless the claimant who pays for  something other than for the “use of premises” is, nevertheless, relegated to licensee status.

            In this regard, a person going to a driver’s license office who was injured by a condition on the premises would be “limited” to “licensee” status rather than having the benefit of “invitee” status, even though they entered the premises and paid for the driver’s license.  But whatever the limitation is, we know that it “does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets . . . .”  § 101.022(b).

            It again should be noted that the exception to the limitation, like the exception in subsection (a) for a claimant who “pays for the use of the premises,” does not specify what status will be assigned to the claimant.  But what it specifically tells us is that the limitation of the section “does not apply to the duty to warn of special defects.”  The only logical way to read this exception to the limitation is not that the status of the claimant changes, but that the limitation on the duty to that of a licensee still applies to the claimant.  But regardless of that status, the State nevertheless owes to that claimant a “duty to warn of special defects such as excavations or obstructions.”

            So in summary, it breaks down like this:

1. A person who pays for the use of the premises is owed the highest duty, presumably that of an invitee;

2. For a special defect, the claimant is owed the duty to warn of the special defect and otherwise is owed the duty of a licensee;

3. For all other claimants for premises defects from the State, including those who paid a toll for the use of a road, the State’s duty is that owed to a licensee.

            This comes from an analysis of the statute without regard to the case law.  It is a fairly simple statute to apply if it is interpreted in this manner.  It has not been interpreted in this manner.

PART II

Oh, The Cases

            The number of cases construing or applying the TTCA (Texas Tort Claims Act) are too numerous to even list, much less to discuss them in detail.  The primary focus of this part of the opinion will be to address some of the more significant, albeit inadvertent, turns that the interpretation of the section of primary interest have made.

            We begin with Harris County v. Eaton, 573 S.W.2d 177 (Tex. 1978).  The question in this case was whether an abnormally large hole in a road was an excavation, thus making it a special defect.  Though the case was construing the predecessor to the current statute, it had the same proviso in it that is now contained in subsection 121.022(b). The statute stated:

Provided, however, that the limitation of duty contained in this subsection [limiting the duty to that of a licensee] shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets, . . . .

            The court, after some other significant discussion of the scope and application of the statute, goes on to discuss the “proviso.”  The court states that:

The proviso . . . was meant to enlarge the liability in some instances by imposing the duty to warn when there was a special defect.  Accordingly we hold that the abnormally large hole was a special defect and the County had the duty to warn as in the case of a duty one owes to an invitee.

It was undisputed that Harris County had provided no warning.

            From this case we fast forward 14 years, an entirely new Supreme Court, a recodified statute and

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[1] One of several reasons I was absent was so the carpet in my office could be cleaned rather than unnecessarily replaced, as a majority of the Court has voted regarding replacement of carpet for their own offices and the courtroom at a price tag to the taxpayers of almost $20,000.