City of San Antonio v. Texas Mutual Insurance Company as Subrogee of Fernando Hernandez

i i i i i i
DISSENTING OPINION
No. 04-07-00837-CV
CITY OF SAN ANTONIO,
Appellant
v.
TEXAS MUTUAL INSURANCE COMPANY & Fernando Hernandez,
Appellees
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-11523
Honorable David A. Berchelmann, Jr., Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Dissenting opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: January 14, 2009
Taking all evidence favorable to the appellees as true and indulging every reasonable
inference in their favor, the evidence raises a fact question with regard to the City’s actual knowledge
of the sinkhole that caused Hernandez’s injury. See Texas Dept. of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 227-28 (Tex. 2004). As the majority notes, when the City did its “patch job” on
the drain that caused the first sinkhole, David Ibanez, the high school’s chief of maintenance,
informed the City workers that the entire pipe needed to be replaced because it was collapsed in other
areas than the area that was being patched. Ibanez also testified, “And knowing about [the first]
04-07-00837-CV
sinkhole, yes, I knew there was going to be another sinkhole because of the amount of dirt that was
missing from around the building. I finally concluded that this can’t be the glory hole, this is just
one of the holes.” Ibanez also testified that he told the City workers, “That pipe is broken all the way
through. Dirt is going – or there is another big cavern down there, and all it takes is for something
to be above it, walking on it for it to cave in.” (emphasis added)
The majority concludes that the City was warned only that a second sinkhole was likely;
however, I believe a jury could find from Ibanez’s testimony that he warned the City that a second
sinkhole actually existed. Accordingly, I respectfully dissent.
Catherine Stone, Chief Justice
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