City of Austin v. Cooksey (561 S.W.2d 874, 1978)

WALTER, Justice.

We grant appellees’ motion for rehearing and withdraw our opinion and judgment dated October 13, 1977 and the following opinion is rendered in lieu thereof.

This is a wrongful death case. Carol Marie Cooksey, Pamela Kay Cooksey, Kimberly Cooksey and Clara B. Cooksey, the widow, children and mother of Michael Co-oksey, recovered a judgment against Hensel Phelps, Inc., the City of Austin and the State of Texas.

The State and the City have appealed. Hensel Phelps joined the Cookseys in asking that the judgment be affirmed.

Michael Cooksey was employed by Udo Haufler Excavating Company as a bulldozer front-end loader operator.

Plaintiffs alleged Hensel Phelps was the general contractor with the State on Interstate freeway in the proximity of 51st Street at its intersection with Interstate Highway 35 in Austin; at the time of Mr. Cooksey’s death, he was working near a light pole that had been set by the City pursuant to plans and specifications proposed by the State or Hensel Phelps; the deceased was working in the vicinity of the pole and as it began to fall toward him, in his efforts to escape, he abandoned his bulldozer and it ran over him and killed him; the deceased was performing services pursuant to his employer’s contract with Hen-sel Phelps “on premises owned, controlled or occupied by Hensel Phelps, Inc. Michael Cooksey, deceased, on the time and occasion in question, was what is known in law as an invitee of Hensel Phelps, Inc.”

They allege thirteen specific acts of negligence against Hensel Phelps.

In addition to the same thirteen acts of negligence pleaded against Hensel Phelps, plaintiffs pleaded the City failed to operate its power company in accordance with the National Electric Safety Code.

In addition to the same thirteen acts of negligence pleaded against Hensel Phelps, plaintiffs pleaded the State was guilty of gross negligence. Plaintiffs also pleaded the State, in violation of Art. 6252-19, V.A. C.S., Sections 3 and 18(b), created and maintained a dangerous condition on its premises or right-of-way at the intersection of Interstate 35 and 53rd Street in Austin in the form of a power pole without proper supporting structure, near a proposed or developed excavation site. They alleged this was a dangerous condition on its premises and a special defect of which the State had an affirmative duty to warn the decedent. They alleged the State had actual knowledge of this condition and failed to remedy the danger.

Also, by pleading Section 3 of the Act, plaintiffs pleaded the death of Michael Co-oksey was proximately caused by the negligence of the State from some condition or some use of tangible property, real or personal.

The Texas Tort Claims Act waives sovereign immunity for all governmental units in three general areas: “use of publicly owned automobiles, premise defects, and injuries arising out of conditions or use of property”. Greenhill & Murto, Governmental Immunity, 49 Texas L.Rev. 462 (1971).

The jury found Hensel Phelps negligent (1) in failing to discover the dangerous condition, (2) in failing to give an “adequate warning” of the dangerous condition, and (3) in failing to correct the dangerous condition. The jury found each act of negligence to be a proximate cause.

The jury found the City negligent (1) in setting the pole in unstable terrain without adequate support, (2) in failing to discover the dangerous condition, (3) in failing to give an “adequate warning” of the dangerous condition, and (4) in failing to correct the dangerous condition. They found each act to be a proximate cause.

The jury found the State negligent (1) in setting the pole in unstable terrain without adequate support, (2) in failing to discover the dangerous condition, (3) in failing to give an “adequate warning” of the dangerous condition, and (4) in failing to correct the dangerous condition and each act of negligence was a proximate cause.

The jury found the deceased negligent in continuing his work in light of the circumstances and conditions known to him or the circumstances and conditions which should have been known to him in the exercise of ordinary care and this was a proximate cause of the occurrence in question.

The jury found the percentage of negligence attributable to Hensel Phelps 10%, the City 30%, the State 55% and the deceased 5%.

Article 6252-19, Section 3 of Texas Tort Claims Act, provides in part:

“Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages.”

Article 6252-19, Section 18(b), V.A.C.S., provides:

“(b) As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. Provided, however, that the limitation of duty contained in this subsection shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets, nor shall it apply to any such duty to warn of the absence, condition or malfunction of traffic signs, signals or warning devices as is required in Section 14(12) hereof.”

Article 6252-19, Section 18(b) deals with premise defects in the first sentence and with “special defects” in the last sentence. In State v. Tennison, 509 S.W.2d 560 (Tex.1974), the court decided a “premise defects” case as distinguished from a “special defects” case.

The plaintiffs pleaded the State was in violation of the Texas Tort Claims Act, Art. 6252-19, V.A.C.S., Sections 3 and 18(b) and created or maintained a dangerous condition on its right-of-way. The plaintiffs thereby sought recovery against the State under the “premise defects”, “special defects” and “some condition or some use of tangible property, real or personal” theory of recovery provided for in the Act.

In “premise defects” cases, the State owes the same duty owed by private persons to a licensee on private property. This limitation of duty does not apply to the duty to warn of “special defects”. Nor does it apply to a cause of action alleged to have been caused from some condition or some use of tangible property, real or personal.

The State contends the court erred in failing to grant its motions for an instructed verdict and for judgment non obstante veredicto. It also contends there is no evidence to support the jury’s answers to the special issues.

A temporary light pole was set on Interstate 35 near 53rd Street in Austin on November 14, 1974. It had been set for about 2½ months before the accident. The pole was set at the request of the State Highway Department. The location of the pole was selected and designated for the limited purpose of furnishing “some temporary service to energize the illumination system on Interstate Highway 35.”

Ronnie L. Choate, superintendent for Hensel Phelps Construction Company, testified substantially as follows:

I have been employed as superintendent for Hensel Phelps for the last eight years. My duties are basically the overall planning and supervision of the job. Our work in the vicinity of Highway 35 and 51st Street here in Austin involved the construction of a new 51st Street bridge plus three turnaround bridges and also some storm sewer and culvert work. I am familiar with the fact that Michael Cooksey was killed at this job site. My office is located within 100 feet of the pole and I saw the pole quite frequently and I was aware of the excavation that was going on every day.

I had a conversation with Michael Co-oksey prior to the accident. Mr. Cooksey worked for Udo Ha'ufler and Udo has been doing work for Hensel Phelps for the past two or three years.

The depth of the culvert we were excavating varied from six to seven feet. I was at the scene after the accident and it appeared the excavation for the culvert in the vicinity of the pole was between six and seven feet — very close to the same depth the pole was buried. When the pole fell it took with it the berm area which separated the pole from the excavated area.

He was asked the following questions and he gave the following answers:

“Q How — In point of time, how much earlier or how far prior to the falling of the pole did you make this observation?

A Sir, on the morning of the accident, the Monday morning prior of the accident, midmorning, there was still five to six feet berm area as you described it around the pole, between the pole and the excavation.

Q How deep was the excavation at that point?

A In the vicinity of six to seven feet.

Q Oh, I see.

A Sir, the excavation past the pole was completed on the previous Thursday or Friday.

Q I see. Well, what work was Mr. Cooksey involving himself in at the time of the fall?

A Sir, he was excavating further to the northwest from the pole.

Q Had you seen him excavating in the area you just described to the northwest of the pole shortly prior to the fall of the pole?

A How do you mean — What do you mean by shortly, sir?

Q Well, tell me how — if you did first see him, and then tell me when you saw him doing that work.

A Sir, immediately after lunch, that was the last time that I actually observed Cooksey digging there. He was digging to the northwest of the area where the pole was at.

Q And approximately what time of the day or night did this accident happen?

A Shortly after four o’clock, I believe, sir.

Q And how far to the northwest was Mr. Cooksey?

A I would say 50 to 75 feet.

Q In other words, the work that was to be done in the immediate vicinity of the pole had already been completed?

A Yes, sir, it had been completed the previous Friday.

And, therefore, there would be no reason for Mr. Cooksey to be doing any excavation work in the area? O'

That’s correct, sir. ¡>

And to your knowledge he was not doing any excavation work in that area? «o

At noon I knew he was not, sir. U»

Have you talked to any other employees of Hensel Phelps that claimed — who observed or witnessed him doing any work in the vicinity of the pole around four o’clock? ,©

No, sir.