COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TEXAS DEPARTMENT OF TRANSPORTATION/DON STIXROOD and PATRICIA STIXROOD, Individually and on behalf of THE ESTATE OF CHELSEA STIXROOD and on behalf of THE ESTATE OF JOSHUA STIXROOD,                    Appellant/Cross-Appellee, v. DON STIXROOD and PATRICIA STIXROOD, Individually and on behalf of THE ESTATE OF CHELSEA STIXROOD and on behalf of THE ESTATE OF JOSHUA STIXROOD/TEXAS DEPARTMENT OF TRANSPORTATION,                    Appellees/Cross-Appellants.

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No. 08-01-00265-CV Appeal from the 296th District Court of Collin County, Texas (TC# 296-782-97)

O P I N I O N

This is a cross-appeal stemming from a wrongful death and survival action under the Texas Tort Claims Act.  We affirm.

On December 22, 1996, Chelsea and Joshua Stixrood, the adult children of Don and Patricia Stixrood (AThe Stixroods@), were killed in a car accident a few miles from the family=s home in Collin County, Texas.  The Stixroods sued the Texas Department of Transportation (ATXDOT@) alleging that a muddy condition on the road on which Joshua and Chelsea were traveling was the cause of the accident.  A verdict for $28,030,755.66 was entered against TXDOT after a five-day jury trial in April 2001.  The trial court remitted these damages to $250,000 plus post-judgment interest.

TXDOT here appeals the remitted judgment alleging it is not supported by legally sufficient evidence and is the result of charge error.  The Stixroods cross-appealed alleging the trial court erred in remitting the judgment to $250,000, contending instead that a judgment of $500,000 should have been entered to include mental anguish damages for both Don and Patricia Stixrood.

Facts

The evening of December 21, 1996 began with several young friends at the Stixroods= home.  Sean Battenfield was a friend of Joshua and was dating Chelsea.  Battenfield, Joshua, Chelsea, and another friend, Chris Abbott, drank a few beers over the course of four hours.  At around 2 a.m., they decided to go drag racing.  Both Battenfield and Joshua had cars that were capable of racing and had done so before.  In Battenfield=s opinion, neither he nor Joshua was intoxicated at the time they left the house. Joshua=s autopsy report revealed a alcohol blood serum of .06 and a vitreous fluid reading of .08.

The group used State Highway 5 northbound to reach a racing spot. Battenfield does not remember seeing a lot of mud on the northbound side of Highway 5.  They decided not to race, however, because the roads were wet and the road surface would not provide enough tire traction for racing.

Returning to the Stixrood house, the group used Highway 5 southbound. Battenfield and Abbott were in one car, Joshua and Chelsea in the other.  Battenfield was in the left lane.  Joshua followed behind Battenfield in the right lane.  Battenfield estimated his speed between 65 and 75.  Joshua never passed Battenfield.

Battenfield suddenly saw Joshua=s car leave the road in his rear view mirror.  Battenfield stopped the car.  He and Abbott ran back down the road to see what had happened.  They discovered Joshua=s badly mangled vehicle in the creek that ran below Highway 5.  Both waded into the creek and while Abbott lay across the front of Joshua=s car and held Chelsea=s head above water, Battenfield ran back to his car to call 911. Approximately ten minutes had elapsed from the time they left the Stixroods= house until the time of the accident.  Joshua was declared dead at the scene.  Chelsea survived for four days before dying of injuries sustained in the crash.

Several witnesses testified that Joshua was an experienced driver who had driven safely on roads with icy, wet, or snowy conditions.  The testimony concerning Joshua=s speed at the time of the accident was highly disputed.  Estimates ranged from 65 to 97 mph.  It was established, however, that the police calculation of 97.10 mph was probably incorrect because it assumed dry conditions on the roadway.

Muddy conditions were common on Highway 5 where the accident occurred, caused by truck traffic to a landfill maintained by the North Texas Municipal Water District.  TXDOT=s area engineer, William C. Lovil, Jr., testified that muddy conditions on Highway 5 were common because of the truck traffic in and out of the water district landfill.  He further testified that the road was not designed to deal with the muddy conditions created by the landfill and that the mud created a hazardous condition.  In the past, TXDOT crews had been sent out to clean up mud and debris on the road.

Plaintiffs offered reports of eight similar accidents.  Both TXDOT and the North Texas Municipal Water District had reports from the public for the two prior years complaining that the stretch of road in question was prone to dangerous muddy conditions.  Less than two months before the accident, TXDOT=s maintenance manager acknowledged in writing that the muddy conditions could get quite bad on that stretch of road.

David Hall, a traffic engineering expert, testified on behalf of plaintiff that mud on the highway was the ultimate cause of the accident, as it caused Joshua=s car to spin out of control.  The police department=s accident reconstructionist testified to the contrary, that the mud could not have been a major factor in the accident because Joshua=s tires left rubber skid marks on the road surface, a fact which indicated that Joshua=s speed was great enough for his tires to get traction with the road surface.  Hall testified that there should have been signs to warn of the slippery road condition.  Lovil testified that he had the authority to erect warning signs without getting permission from Austin.  The cost for erecting such a sign was $206.50.

Over TXDOT=s objection, the trial court submitted the case on a special defect charge. The jury returned a verdict of $28 million.  It apportioned 85 percent of the negligence for the accident to Joshua, 15 percent to the State, and 0 percent to Chelsea.

On post-verdict motion it was undisputed that damages awarded pursuant to the Texas Tort Claims Act are capped at $250,000 per person and $500,000 per occurrence.  The State argued the trial court should enter a take-nothing judgment pursuant to the motion for judgment notwithstanding the verdict.  The Stixroods argued the verdict should be remitted to $500,000 to include $250,000 for Chelsea and $250,000 for Don and Patricia Stixrood for their mental pain and anguish connected to the death of their daughter. The trial court remitted the judgment to $250,000 for Chelsea Stixrood.  Both sides timely appealed.

The special defect theory was correctly submitted to the jury

In TXDOT=s first issue, it urges that the trial court erred in submitting the case under a special defect theory, and alternatively that there was not legally sufficient evidence to support the jury=s verdict under that theory. We disagree.

Generally, a governmental unit, in this case TXDOT, enjoys sovereign immunity from suit and may be sued for negligence only if liability arises under the Texas Tort Claims Act (ATTCA@). See Tex. Civ. Prac. & Rem. Code Ann. ' 101.025 (Vernon 1997). Therefore, sovereign immunity remains intact unless a plaintiff proves the existence and violation of a legal duty sufficient to impose liability under the TTCA.  See City of Denton v. Page, 701 S.W.2d 831, 834 (Tex. 1986).

The TTCA defines those duties as follows:

(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 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.

Tex. Civ. Prac. & Rem. Code  Ann. ' 101.022 (Vernon 1997).

Thus, to establish liability for a premise defect, a plaintiff must prove that a condition of the premises created an unreasonable risk of harm, that the owner actually knew of the condition, that plaintiff did not actually know of the condition, that the owner failed to exercise ordinary care to protect plaintiff from danger, and that the owner=s failure was a proximate cause of injury.  State Dep=t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); State v. Tennison, 509 S.W.2d 560, 561 (Tex. 1974).    If the condition complained of constitutes a special defect within the meaning of section 101.022(b), however, the claimant is owed the same duty to warn as that owed to an invitee by a private landowner.  Payne, 838 S.W.2d at 237; Harris County v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978).  To establish liability for a special defect, plaintiff must prove that a condition of the premise created an unreasonable risk of harm to the invitee, that the owner knew or reasonably should have known of the condition, that the owner failed to exercise ordinary care to protect plaintiff from danger, and that the owner=s failure was a proximate cause of injury.  Payne, 838 S.W.2d at 237.

Under a special defect theory, the plaintiff need not prove that the State actually knew of the dangerous condition and that plaintiff did not. Stated another way, if the governmental entity was aware of a dangerous condition or could have discovered it upon the exercise of reasonable diligence, then the State owes the invitee the duty to either warn of the condition or to take steps to make the condition reasonably safe.  Corbin v. City of Keller, 1 S.W.3d 743, 744-47  (Tex. App.--Fort Worth 1999, pet. denied).

Whether a condition is a premise defect or a special defect under the Act is a question of law for the court to decide.  City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997); Payne, 838 S.W.2d at 238.  Moreover, the classification of premise or special defect involves statutory construction and is done on a case‑by‑case basis.  See Roberts, 946 S.W.2d at 843 (examples of special defects stated in statute are not exclusive and such defects should be construed to include defects of same kind or class as those mentioned in statute); State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994);  State v. Williams, 932 S.W.2d 546, 550 (Tex. App.‑‑Tyler 1995), writ denied, 940 S.W.2d 583 (Tex. 1996).

Here, TXDOT contends that the test for whether a condition constitutes a special defect requires plaintiff prove the condition is not just unreasonably dangerous but is instead Aextraordinarily@ dangerous.  We find no support for this assertion.

The Supreme Court has consistently interpreted Aexcavation@ and Aobstruction@ to mean conditions that present Aan unexpected and unusual danger to ordinary users of roadways.@  State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); State Dep't of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993). As the Rodriguez court stated: ASpecial defects unexpectedly and physically impair a car=s ability to travel on the road.@ Rodriguez, 985 S.W.2d at 85. Some examples of conditions found to be special defects include metal signs lying on the roadway, slick and muddy conditions on the road resulting from a state-run excavation, flood waters over a state highway, and a large pothole.  See State v. Williams, 932 S.W.2d 546, 550 (Tex. App.--Tyler 1995, writ denied) (metal sign); State v. McBride, 601 S.W.2d 552, 558 (Tex. Civ. App.--Waco 1980, writ ref=d n.r.e.) (muddy condition on roadway); Miranda v. State, 591 S.W.2d 568, 570 (Tex. Civ. App.--El Paso 1979, no writ) (flood waters); Harris County v. Eaton, 561 S.W.2d 245, 247 (Tex. Civ. App.--Houston [14th Dist.]), aff=d, 573 S.W.2d 177 (Tex. 1978) (ten-inch deep pothole spanning roadway).  In this case, the State=s and the Stixroods= witnesses testified that the mud should not have been on the road and that it sometimes posed a dangerous condition to drivers on Highway 5.  Stated another way, it was unusual that the mud became dangerous enough to cause an accident.  We thus believe the muddy condition could have been an obstruction within the meaning of section 101.022(b).

The more troubling question is whether that obstruction was unexpected. The evidence showed that Joshua=s skid began on a straight stretch of road.  He was following close enough behind Battenfield in the right lane that he was in Battenfield=s blind spot. Battenfield testified he was going no more than 70 miles an hour in the left lane.  The two cars had previously driven over the northbound lanes of Highway 5 without incident.   Joshua presumably saw Battenfield=s car pass without incident over the stretch of road on which Joshua began his skid. Battenfield testified that Joshua=s disappearance from the roadway was sudden.  We find there was legally sufficient evidence to establish the muddy condition on Highway 5 presented Aan unexpected and unusual danger@ to Joshua and his passenger.  Rodriguez, 985 S.W.2d at 85.  The trial court therefore did not err in submitting the case to the jury on a special defect theory.  TXDOT=s first issue is overruled.

The Premise Defect Theory

In TXDOT=s second issue, it claims the Stixroods= case also fails for lack of legally sufficient evidence under a premise defect theory.  As a corollary to its second issue, the State also contends we must reverse and render judgment because the jury failed to make findings essential to recovery on a premise defect theory.  See Payne, 838 S.W.2d at 241.  Having held that the trial court did not commit reversible error by submitting the case to the jury under a special defect theory, we need not reach these questions.  TXDOT=s Issue Two is overruled.

Damages capped under the TTCA

In a single point, the Stixroods seek modification of the trial court=s judgment. Specifically, they request an additional $250,000 of the $28.4 million jury verdict to compensate Don and Patricia Stixrood for mental anguish sustained as a result of Chelsea=s death.   There is no greater loss for a parent than the loss of a child.  That the Stixroods suffered the loss of two of their children within four days= time is a terrible tragedy.  Neither we nor TXDOT dispute that their mental anguish is a legitimate element of damages that would otherwise be a recoverable were this case not against the State.  See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986).

Damage awards under the Texas Tort Claims Act, however, are capped at $250,000 per person and $500,000 per occurrence.  The cap provision reads:

(a)       Liability of the state government under this chapter is limited to money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death . . . .

Tex. Civ. Prac. & Rem. Code Ann. ' 101.023(a) (Vernon 1997 & Supp. 2003).  As the Stixroods correctly concede, the term Aper person@ in the TTCA has historically been interpreted narrowly to mean only the person who was killed or injured in the accident caused by the State=s negligence.  Texas Dep=t of Transportation v. Ramming, 861 S.W.2d 460, 467 (Tex. App.--Houston [14th Dist.] 1993, writ denied); see City of Austin v. Cooksey, 570 S.W.2d 386, 388 (Tex. 1978); Harris Cty. Hosp. Dist. v. Estrada, 872 S.W.2d 759, 765 (Tex. App.--Houston [1st Dist.] 1993, writ denied) (only permitting  recovery of decedent=s mental anguish damages in wrongful death case brought pursuant to TTCA).

Other Texas courts have examined this issue by construing the phrase Abodily injury@ to hold that Amental anguish resulting from the loss of a loved one is not the basis for a separate cause of action, but is . . . an element of damage flowing from the death, and is derivative@ of the physical injuries sustained by the decedent.  Hermann Hosp. v. Martinez, 990 S.W.2d 476, 479 (Tex. App.--Houston [14th Dist.] 1999, pet. denied); Harris Cty. v. White, 823 S.W.2d 385, 388 (Tex. App.--Texarkana 1992, no writ); see Rosenzweig v. Dallas Area Rapid Transit, 841 S.W.2d 897, 898 (Tex. App.--Dallas 1992, writ denied) (derivative claims of spouse for loss of consortium and household services do not constitute bodily injury to allow TTCA recovery under Aper person@ provision).

Only one exception to this restrictive interpretation of the TTCA exists--the bystander rule.  It provides that a plaintiff may recover for mental anguish damages sustained when Ahe witnesses the injury or death of a loved one and thus suffers his own, personal injury in the form of shock and mental anguish.@  Hermann Hosp., 990 S.W.2d at 479-80.  To recover under this theory the bystander must be located at or near the scene of the accident, must sustain his mental injury from the direct emotional impact of the sensory and contemporaneous observance of the accident, and must be closely related to the victim.  Edinburg Hosp. Authority v. Trevino, 941 S.W.2d 76, 80 (Tex. 1997).

The Stixroods ask us to find they are entitled to bystander status because Don visited the scene the morning after the accident and because both parents endured a three-day bedside vigil before Chelsea died.  Unfortunately, such evidence is insufficient to imply such status. Ramming, 861 S.W.2d at 467. The Stixroods cannot be considered bystanders in this case to permit recovery of mental anguish damages under the TTCA  because neither parent was in close physical proximity to the accident, nor were they present at the time of the accident.  Compare with City of Austin v. Davis, 693 S.W.2d 31, 33-34 (Tex. App.--Austin 1985, writ ref=d n.r.e.) (father=s discovery of son=s body many hours after accident rendered his experience an integral part of the accident such that recovery for his mental anguish damages under bystander theory permissible).  The Stixroods= point is therefore overruled.

Conclusion

The trial court=s judgment is affirmed.

SUSAN LARSEN, Justice

December 12, 2002

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)