

 



















 
 
 
                                                                                                        
 
 
                                   NUMBER
13-99-774-CV
 
                             COURT
OF APPEALS
 
                   THIRTEENTH
DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
 
 

COUNTY OF HIDALGO,                                                         Appellant,
 
                                                   v.
 
ADAM BROWN AND EMMA BROWN,                                     Appellees.
 

 
                        On appeal
from the 206th District Court
                                  of
Hidalgo County, Texas.
 

 
                                   O
P I N I O N
 
                     Before Justices Dorsey,
Castillo, and Cantu[1]
                                 Opinion by
Justice Castillo
 
 




Appellant,
the County of Hidalgo, appeals from a jury verdict in favor of the appellees, Adam and Emma Brown.  Adam Brown was injured in an automobile
accident while trespassing on private property, when his jeep fell off the side
of a drainage ditch created by the county pursuant to an easement.  The cause of action was submitted to the jury
under the theory of premise defect, under the Tort Claims Act.  In five points of error, appellant claims
that the evidence was insufficient to support the verdict, and the trial court
erred in overruling motions for judgment notwithstanding the verdict and new
trial.  We reverse.
                                                 Factual
Summary
On
May 28, 1994, following a morning of hitting golf balls at a driving range,
Adam Brown, Antonio James, and Stanley Ramos went to have lunch at a McAllen,
Texas pizzeria.  The three men were
traveling in a convertible jeep driven by James.  According to James= trial
testimony, he consumed two beers during lunch. 
After finishing their lunch at approximately 2:00 p.m., the group left
the pizzeria to watch a televised sports event at a local sports pub.  Since the game was not set to commence until
2:30 p.m., and the group had A30 minutes to
kill,@ James
suggested that the group go Afour-wheeling@ or Aoff-roading@ through an
area that he had frequented many times before. 
Said area was located near a drainage ditch, and according to Ramos,
James did not give any indication that the area might have been a private
property area.  After traveling up and
down ten to fifteen hills, James drove the jeep over a spoil bank that was
missing dirt on the opposite side. 
According to his testimony, James did not know that part of the hill was
missing until the jeep was already Agoing over it
off the edge.@  The jeep took a Anosedive@ down the other
side of the bank and struck the ground, causing the vehicle to flip over on top
of its passengers.  Ramos and Brown were
transported to the hospital in an ambulance. 





Upon
arrival at the hospital, Ramos was placed in intensive care and treated for a
concussion.  He remained there for thirty
hours.  Brown was in a coma for eight
days and underwent approximately three and a half months of treatment for a
closed head injury in hospitals in Edinburg,
Harlingen, Corpus Christi, and Danville, Illinois before being released and
returning to work. 
The
area in which the accident occurred was a private property area owned by Joseph
Thomas, Jr. and his spouse, Sarah Thomas. 
During his trial testimony, Mr. Thomas identified an easement agreement
between Hidalgo County and himself that allowed the county to come onto his
property for the purpose of digging ditches. 
Thomas further testified that his wife and he did not excavate the hill
on which the accident occurred, nor did they authorize anyone to do so.  Thomas also testified that while his wife and
he retained ownership of the property including spoil bank dirt or Aberms,@ according to
the easement agreement,  the
county was responsible for the maintenance of the ditch and berms
that it created as well as the service roads next to it.  




The deposition testimony introduced at
trial of Vona Walker, interim manager of the Hidalgo
County Drainage District, also recognized the easement agreement and outlined
the terms of the agreement as follows: A[t]he
Thomases were granting the Drainage District an
easement to construct, operate, and maintain a drainage ditch over and across
the property. . . .  As per the easement,
the grantors had full use and control of the spoil bank dirt, but that did not
include the area where our maintenance road was.@  Regarding maintenance responsibilities of the
county as set out by the easement, Walker offered the following testimony: A.
. . we maintained the area where the road was adjacent to the ditch.  We maintained the inside slope of the spoil
bank and the top of the spoil bank. . . . 
Hidalgo County drainage district received a permit from the [Army] Corps
of Engineers, and as part of that permit, we were not able to maintain the
outside slope of the spoil banks.  We
agreed to leave that there so it would provide habitat for the birds and wild
animals.@
 Walker also testified that Ano
trespassing@ signs had been
posted at all entrances to notify the public that the areas were private ones Anot
generally for the use of the public.@  
In response to a direct examination
question regarding who cut off the side of the spoil bank in question, Walker
stated that the Hidalgo County Drainage District Number 1 did not do that, and
explained that the pictures of the area showed Ateeth
marks@
in the dirt.  According to Walker, the
only equipment that the county had at that time with teeth was a Adragline,@
which cannot easily be driven from its sitting position to Aload
a couple of scoops of dirt.@  Rather, it is used for maintenance of a
ditch, such as removing silt from the bottom or to dig new ditches.  The trial testimony of Godfrey Garza, Hidalgo
County Drainage District Number 1 manager at the time of trial, supported that
of Walker
regarding the dragline theory.  Garza
expressed that he was confident that the gouge marks shown in photographs of
the berm in question were not done by the county=s
equipment because the county did not have the type of equipment necessary to
perform excavations at the time of the accident.  He also stated that the only equipment that
the county owned with teeth on it were draglines, which are used to Adig
dirt out, not to be pulling it off the banks.@  
Garza=s
testimony was in accordance with Walker=s
regarding the ownership of the property and the stipulations of the easement
agreement in effect at the time of  the
accident, with the exception of the question of whether the drainage district
and the County
 of Hidalgo
are one and the same for all practical purposes.  While Walker
testified in her oral deposition that the drainage district and the county are
one and the same, Garza testified that Athe
drainage district is the responsible entity for the drainage system, not the
county.@




Appellant moved for an instructed verdict,
asserting that the evidence presented by the plaintiffs did not support a
violation of any duty that may have been owed to them as trespassers.  More specifically, appellant maintained that
the appellees did not in any way establish that it
was the party that excavated the soil on the other side of the hill.  The court overruled the motion, and the jury
returned a verdict in favor of the plaintiff. 
Appellant filed a timely motion for new trial, which was also denied.
Issues Presented
In his first issue presented,
appellant challenges the trial court judge=s denial of its motion for judgment notwithstanding the verdict
and its motion for new trial, because there was no evidence, or alternatively,
insufficient evidence  to support the
jury=s finding that Hidalgo County had acted willfully, wantonly or
with gross negligence to injure appellee.  In its second issue, appellant claims that
there was no evidence, or alternatively, 
insufficient evidence to support the jury finding that Hidalgo County had acted willfully, wantonly, or through gross negligence to injure
the appellee. 
Appellant complains in its third issue presented that the trial court
erred in denying its motion for judgment notwithstanding the verdict and its
motion for new trial because the evidence was legally and factually
insufficient to support the jury=s  finding that Hidalgo
County owned or operated the premises where the accident occurred.  Appellant=s fourth issue asserts that the trial court erred by Aimpliedly finding@ that it owned or controlled the premises.  Finally, appellant asserts in its fifth issue
that the trial court erred in denying its motion for judgment notwithstanding
the verdict and its motion for new trial because Hidalgo County was immune from
suit under the doctrine of sovereign immunity contained in section 101.021 of the
Texas Practice and Remedies Code, and appellee failed
to prove facts defeating that immunity.  

Standard of Review
We will address appellant=s second issue presented first. 





We review a legal sufficiency
challenge by considering all the evidence in the light most favorable to the
prevailing party, indulging every reasonable inference in that party=s favor.  Formosa Plastics vs. Presidio Eng=rs, 960 S.W.2d 41, 48 (Tex. 1998); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846,
853 (Tex. App.BCorpus Christi 1999, pet. denied).   A Ano evidence@ standard of review is applied when the party not bearing the
burden of proof at trial challenges a finding of fact by arguing that the
evidence is legally insufficient to support the finding.  Hickley
v. Couchman, 797 S.W.2d 103, 109 (Tex. App.BCorpus Christi 1990, writ denied). 
A legal sufficiency point may only be sustained when the evidence
conclusively establishes the absence of a vital fact, the record discloses no
more than a mere scintilla of evidence to prove a vital fact, or the court is
bound by rules of law or evidence from giving weight to the only evidence
offered to prove a vital fact.  Hines
v. Commissioner for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.CCorpus Christi 2000, no pet.). 

In considering a factual
sufficiency point of error, we must review all the evidence in the record.  Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).  A finding may not
be overturned for factual insufficiency unless the evidence is so weak or the
verdict is so against the great weight and preponderance of the evidence as to
be manifestly unjust.  Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  
Sovereign Immunity and
the Tort Claims Act
As a general rule,
governmental entities are immune from tort liability under the doctrine of
sovereign immunity.  Harris County  v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994).  The Texas legislature has created exceptions to the doctrine of sovereign
immunity which are applicable under certain conditions.  Id.  Whether a particular claim
falls into an exception from the general doctrine of sovereign immunity is
entirely dependant on the statutory language. 
Dallas County Mental Health & Mental Retardation v. Bosley,
968 S.W.2d 339, 341 (Tex. 1998).  
The Texas Tort Claims Act
provides that governmental units are liable for Apersonal 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 Ann. ' 101.021(2) (Vernon 1997).  It is undisputed
that the County of Hidalgo is a Agovernmental unit@ as defined by the Texas Tort Claims Act.  See Tex.
Civ. Prac. & Rem. Code Ann. ' 101.001(3) (Vernon Supp. 2002).  
Hidalgo County=s Liability for Premises Defects
Brown alleged in this case
that the spoil bank on which he was injured constituted a dangerous condition
of property under Hidalgo County=s control, thus creating liability for the county under the Texas
Tort Claims Act as a premises defect, for which the county was liable.  For the purposes of our review of this
question, we will assume that Hidalgo County had control over the property in question and that the Texas Tort
Claims Act applies.   
Under the premises defects
section of the Tort Claims Act, unless the claimant has paid to use the
premises,[2] the State owes to the claimant only the same duty as
a private person owes to a licensee on private property.  Tex.
Civ. Prac. & Rem. Code Ann. '101.022(a)
(Vernon
1997).  Thus where a premise defect
exists, the State=s
only duty is not to injure the licensee willfully, wantonly, or through gross
negligence.  State Dep=t
of Highways and Public Transp. v. Payne, 838
S.W.2d 235, 237 (Tex.
1992) (op. on reh=g)
(citing State v. Tennison, 509 S.W.2d 560, 562
(Tex.
1974)).  The exception to this rule is
that, where a licensor has actual knowledge of a dangerous condition, and
the licensee does not, the licensor then has the duty either to warn the
licensee or to make the condition reasonably safe.  Id.  For there to be liability under such
exception, constructive knowledge is insufficient; rather, there must be proof
of actual knowledge on the part of the state as to the dangerous condition in
question.  Tennison,
509 S.W.2d at 562.
          The liability question posed to the
jury in the instant case did not inquire as to any willful or wanton conduct on
the part of Hidalgo County,
nor was it submitted under the Tennison
exception.  The question was solely
premised on the theory of gross negligence.[3]  We consider, therefore, only whether the
evidence was legally and factually sufficient to support a finding of gross
negligence.




Gross negligence involves proof of two elements:  (1) viewed objectively from the actor's
standpoint, the act or omission must involve an extreme degree of risk,
considering the probability and magnitude of the potential harm to others; and
(2) the actor must have actual, subjective awareness of the risk involved, but
nevertheless proceed in conscious indifference to the rights, safety, or
welfare of others.  See Mobil
Oil Corp. v. Ellender, 968 S.W.2d 917, 921
(Tex.1998) (citing Transportation Ins. Co. v. Moriel,
879 S.W.2d 10, 23 (Tex.1994)).  In
reference to the first requirement, the Aextreme
risk@
means the likelihood of serious injury to the plaintiff.  Id.  In reference to the second requirement,
ordinary negligence rises to the level of gross negligence when it can be shown
that the defendant was aware of the danger but his acts or omissions
demonstrated that he did not care to address it.  Louisiana-Pacific. Corp. v.
Andrade, 19 S.W.3d 245, 246-47 (Tex.
1999); Burk Royalty Co. v. Wells, 616 S.W.2d 911, 922 (Tex.
1981).  While proof of the second element
may be made through either direct or circumstantial evidence, the evidence  must demonstrate actual subjective knowledge
of an extreme risk of serious harm.   Moriel, 879 S.W.2d at 22-23.
Considering the second element first, we find that there
was no evidence presented to the jury demonstrating that Hidalgo County was aware of the dangerous condition, namely, the excavation of
dirt on one side of the spoil bank, that led to the accident in this case.  Even if the county knew that the drainage
ditch and its adjacent spoil banks were being used by trespassers, including
mountain bikes and four-wheel vehicles, for entertainment, there was no evidence
presented that the county knew that the dirt had been removed from one side of
the spoil bank, or indeed when the dirt had been removed.  
Under the terms of its
easement agreement with the owners of the property, the county was responsible for
the maintenance of the spoil banks, but the owners possessed the right to
remove dirt from the banks if they chose to do so.  Thus the spoil berm
where the incident took place was not entirely within the county=s control and knowledge of the condition of the spoil bank at the
time of the accident cannot be imputed to the county. Although appellee presented evidence to the jury demonstrating that
a complaint had been filed regarding four-wheeling in the area, in 1992, there
was no evidence presented demonstrating that there had been previous accidents
on the spoil bank in question.  Indeed,
James testified that he had personally Agone four-wheeling@ over the spoil banks about twenty-five times without
incident.  We cannot impute knowledge to Hidalgo County regarding a hazardous condition related to a single spoil bank
only partially under its control, located miles away from a public highway,
absent evidence of some sort of notification or complaint given to the county
regarding the hazard or other evidence of the county=s actual knowledge of the hazard=s existence. 
          As there was no
evidence presented to demonstrate that Hidalgo County knew of the danger in question and, nevertheless, acted with
conscious indifference, Hidalgo County could not have been grossly negligent with respect to the hazard
presented by the excavated spoil bank. 
See Moriel, 879 S.W.2d at 22.  Therefore, we find that the evidence was
legally insufficient to support a finding of gross negligence against Hidalgo County.                         
Remaining Issues
Because appellants= second issue presented is dispositive in this case, we do not
address appellants= remaining issues.  See Tex. R. App. P. 47.1.  
Conclusion 
Accordingly, we reverse the judgment of the trial court and render
a take-nothing judgment against appellees.  
  
ERRLINDA
CASTILLO
Justice
Publish.
Tex. R. App.
P. 47.3(b).
 
Opinion delivered and filed
this 13th day of June, 2002.                                  




[1]Retired
Justice Antonio G. Cantu assigned to this court by the Chief Justice of the Supreme
Court of Texas pursuant to Tex. Gov=t Code Ann. '
74.003 (Vernon
1998).                 


[2]
There is no claim that appellee paid to use the land
in question; rather, it is undisputed that he was trespassing. 


3
The jury was instructed that Hidalgo County was grossly negligent with respect
to the condition of the premises if: (1) the condition posed an unreasonable
risk of harm; (2) the County of Hidalgo failed to adequately warn of the danger
and failed to make the condition safe; and (3) the county=s
conduct was more than momentary thoughtlessness, inadvertence or error of
judgment.  The jury was not specifically
asked whether the county or the plaintiff had actual knowledge of the
danger.  As submitted, the questions of
adequately warning and making the condition safe were presented as conditions
demonstrating gross negligence, not as the exception and additional duty (and
theory of liability) contemplated by State v. Tennison,
509 S.W.2d 560, 562 (Tex. 1974).   
We also note that only a broad-form simple negligence question
was asked of the jury and the jury was not specifically asked to find that Hidalgo
County
was grossly negligent.  However, the jury
was specifically instructed that Hidalgo
County
would be grossly negligent under certain circumstances and such instruction was
part of an accompanying explanation to the simple negligence question.  There was no objection to this question as
submitted.  On appeal, appellant, who was
the only party to file a brief, argues the sufficiency of the evidence question
under a gross negligence standard. 
Appellant made no complaint below, and makes none here, to the
negligence question submitted to the jury. 
We find no evidence that the jury was misled as to what the proper
standard  was for liability on the part
of Hidalgo
County
and we review the sufficiency of the evidence under that standard.  See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (where there has
been no objection to the charge by the party without the burden of proof,
appellate court must review the sufficiency of the evidence by the actual
charge given, even if defective); Keetch v.
Kroger Co, 845 S.W.2d 262, 266 (Tex. 1992) (general negligence question
accompanied by appropriate definitions is proper broad form premise liability
question); Harris County v. Smoker, 934 S.W.2d 714, 720-21 (Tex. App.BHouston
[1st Dist.] 1996, writ denied) (liability question which has specific proof
requirements may be submitted in a broad form general negligence question if
instructions properly set out factors for liability); Sanchez v. Excelo Bldg. Maint., 780
S.W.2d 851, 854 (Tex. App.BSan
Antonio 1989, no writ) (juries presumed to follow court=s
instructions and so reviewing court presumed that jury answering broad form
liability question would have considered the specific elements required for
premise liability that were listed in instructions).


