Plaintiff’s Response to Defendant City of Arlington’s Motion for Summary Judgement and Brief in Support

Barnes v. City of Arlington and Crown Enterprises

Summary: This was a premises liability case where Heygood, Orr & Pearson represented the owner of a graphic design company who was driving around a curve in Arlington, Texas where his view was obstructed by overgrown trees and vegetation right next to the roadway. This vegetation blocked his view of an 18 wheeler pulling out from a parking lot just past the vegetation to the right. After rounding the corner and clearing the view obstruction, the owner of the graphic design company was confronted with an 18 wheeler stretched across both lanes. Unable to stop, he collided with the trailer of the 18 wheeler and he suffered significant injuries. Suit was filed against both the owner of the land on which the vegetation was located and also the City of Arlington since the vegetation was on a City dedicated right of way. The City of Arlington filed a motion for summary judgment seeking dismissal from the case claiming that they are entitled to governmental immunity. The below brief was filed by Heygood, Orr & Pearson in opposition to the motion.

CAUSE NO: 048-269467-13
ANTHONY BARNES,

Plaintiff

VS.

MICHAEL BAKER, FALCON TRANSPORT
CO., CROWN ENTERPRISES, INC., ONCOR
ELECTRIC DELIVERY, in its assumed or
Common name, and ONCOR ELECTRIC
COMPANY, LLC and CITY OF ARLINGTON

Defendants

IN THE DISTRICT COURT
48th JUDICIAL DISTRICT
TARRANT COUNTY, TEXAS

PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF ARLINGTON’S MOTION FOR
SUMMARY JUDGMENT AND BRIEF IN SUPPORT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Plaintiff ANTHONY BARNES, (hereinafter referred to as “Plaintiff”) and files this Response to Defendant City of Arlington’s (hereinafter referred to as “the City”) Motion for Summary Judgment and Brief in Support and would respectfully show the Court as follows:

STATEMENT OF FACTS

This case arises out of a motor vehicle collision that occurred in Arlington, Texas on August 14, 2013.  At approximately 6:00 p.m. that evening, Plaintiff was driving his vehicle westbound on Avenue E approaching a private drive located to his right.  (Deposition of Anthony Barnes (“Barnes Dep.”) at 62:11-18 (Ex. A).).  At the time of the collision, Defendant Michael Baker (“Baker”) was exiting that drive in a tractor-trailer, turning left across the westbound lanes of traffic to proceed eastbound on Avenue E.  (Deposition of Michael Baker (“Baker Dep.”) at 12:3-15 (Ex. B).).  As he proceeded out of the drive, Baker was unable to see Plaintiff’s vehicle approaching from the left because his view of the westbound lanes of traffic were obscured by a curve in the road and overgrown vegetation on the southern boundary of an undeveloped lot adjacent to the curb running along Avenue E.  (Id. at 25:21 – 28:5 (Ex. B).). Plaintiff’s view of Baker was similarly impaired and, when his tractor-trailer finally came into Plaintiff’s view, it was too late to avoid impact. (Barnes Dep. at 68:18 – 25; 69:9 – 11 (Ex. A).).  Plaintiff’s vehicle collided with Baker’s trailer and he sustained serious injuries requiring hospitalization.  Plaintiff subsequently filed suit against the City of Arlington alleging that it negligently permitted trees, bushes, weeds and other vegetation (collectively, the “overgrown vegetation”) to grow on property under its control in a manner that obstructed and obscured the line of sight of drivers rounding the curve at the sight of the collision.  The City has now filed a Motion for Summary Judgment asserting that it did not own or control the property on which the overgrown vegetation exists.  The City has also asserted a Plea to the Jurisdiction on the grounds that Plaintiffs’ claims against it are barred by the doctrine of sovereign immunity.  For the reasons set forth below, the City’s Motion for Summary Judgment should be denied.

ARGUMENT AND AUTHORITIES

I. The Overgrown Vegetation was Located on Property Over Which the City of Arlington Exercised Actual Control.

The owner or occupier of premises abutting a highway has a duty to exercise reasonable care not to jeopardize or endanger the safety of motorists using the highway as a means of passage and the owner or occupier is liable for injuries that proximately resulted from his negligent acts in this respect. Atchison v. Texas and Pacific Railway Company, 143 Tex. 466, 186 S.W.2d 228 (1945) (smoke from grass fire on railroad right-of-way drifted across adjacent highway); Hamric v. Kansas City Southern Ry., 718 S.W.2d 916, 918 (Tex.App.—Beaumont 1986, writ ref’d n.r.e.) (tall stand of grass and weeds obscuring the view of a highway intersection).  The overgrown vegetation that created a dangerous condition for motorists in this case is located at 3805 Avenue E East, Arlington, Texas, 76011.  This property was acquired by Crown Enterprises (hereinafter “Crown”) in 2008.  The meets and bounds of the property include a dedicated right of way to the City of Arlington along the southern boundary of the property.  It is within this dedicated right of way that the overgrown vegetation is located. (See, Special Warranty Deed dated January 10, 2008 (Ex. C).); (Deposition of Michael Bass at 11:8-10 (Ex. D).). The City contends that it cannot be held liable for this accident because, as holder of the dedicated right-of-way, it neither owns nor controls the property on which the overgrown vegetation is located.  (See, Def. Mot. at p. 6)

An easement holder who controls or occupies an easement may nonetheless be liable in tort as an occupier of the property.  Oncor Elec. Delivery Co., LLC v. Murillo, No. 01-10-01123-CV, 2014 WL 5285845, at *6 (Tex. App. Oct. 16, 2014), reh’g overruled (Nov. 13, 2014).  The question of legal title for real property purposes does not define whether a possessor of property has a legal duty to answer in tort for premises defects it creates.  “The important thing in the law of torts is the possession, and not whether it is or is not rightful as between the possessor and some third person.” Id.; Restatement (Second) Torts § 328E (1965). cmt. a.  Accordingly, “[a] premises-liability defendant may be held liable for a dangerous condition on the property if it ‘assum[ed] control over and responsibility for the premises,’ even if it did not own or physically occupy the property.” Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002) (concluding that, for purposes of premises-liability claim, county assumed sufficient control over state-owned causeway because it had maintenance contract with state that included responsibilities over causeway’s streetlight system) (quoting City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex.1986)). “The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.” Id.; see Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 489–90 (Tex.App.-Beaumont 2004, pet. denied) (analyzing case in which injury occurred from unmarked guy wire on utility company’s right-of-way as premises-liability claim); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (observing that easement holder has duty to use ordinary care regarding use and maintenance of easement).

In this case, the undisputed evidence is that the City assumed control over and responsibility for the dedicated right-of-way along the southern boundary of Avenue E East to maintain and/or remove the overgrown vegetation and thereby assumed a duty to do so in a safe manner.  Specifically, the City of Arlington requires property owners to maintain their property to the curb line and keep the property free and clear of nuisance weeds and other vegetation that may be unsightly or unsafe. See Tex. Loc. Gov’t Code §§ 217.002, 217.022; (Arlington Nuisance Ordinance Section 2.02(H) (Ex. E).).  Property owners are further required by the City to correct any conditions in which landscape such as “trees, bushes, shrubs, vines, brush or ground cover plants that due to lack of trimming, pruning or shaping or other neglect” is in an unsafe state of disrepair. (Arlington Nuisance Ordinance Section 2.02(L) (Ex. E).).  If those violations are not corrected, the City of Arlington will bring the property into code compliance and send an invoice to the property owner for the cost of its services. (Bass Dep. at 21:16-22:1; 27:14-18:14 (Ex. D).).    From August, 2010 to May, 2014, the City of Arlington performed several site inspections at the 3805 Avenue E East property, during which numerous code violations for unclean premises and high weeds and grass on the property were noted by the city inspector, Mr. David Wyatt.  (Id. at 32:22-33:25 (Ex. D).).  Crown subsequently received several notices of violations of the nuisance chapter of the Arlington Code of Ordinances demanding abatement of trash, weeds and grass on the property.  (See Notices of Violation of Arlington Nuisance Ordinance Section 2.02(H) and (L) dated October 14, 2010; May 20, 2011; April 9, 2012; May 20, 2013; May 1, 2014 (Exhs. F, G, H, I & J).).  In each instance, Crown was given ten (10) days to remedy the violation. (Id.)  Prior to this accident, the custom and practice of Crown was to disregard the notices, prompting the City to place the property on a “mow list,” correct the violation, and send invoices to Crown for associated abatement and administrative fees.  (Deposition of John Dickerson (“Dickerson Dep.”) at 20:19-21; 21:15-22 (Ex. K).); (Bass Dep. at 21:16-22:1; 27:14-28:14 (Ex. D).).  In this capacity, the City repeatedly entered upon, or facilitated entry upon via a third-party vendor, the 3805 Avenue E East property, remedied the condition of the property (including the designated right-of-way and utility easement), and submitted invoices to Crown for payment. (See, City of Arlington Invoices, (Ex. L).).  These facts undermine the City’s contention that it had, and has, no control over the right-of-way along the southern boundary of the property and on which the overgrown vegetation is located.  To the contrary, for a span of several years, the City of Arlington repeatedly entered upon and removed trash, weeds and grass on the entire property – including that portion within the easement over which it now seeks to disclaim any control – to keep the land free and clear of vegetation that was unsightly or unsafe. (Arlington Nuisance Ordinance Section 2.02(H) (Ex. E).).  Stated otherwise, at all relevant times, the City exercised actual control over the southern boundary of the property on which the overgrown vegetation is located.  For this reason, the City had a duty to maintain and/or remove the overgrown vegetation in a manner that would enhance the safety of motorists travelling on Avenue E. Oncor Elec. Delivery Co., LLC, 2014 WL 5285845, at *6; (Tex. App. Oct. 16, 2014); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002); Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 489–90 (Tex.App.-Beaumont 2004, pet. denied); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

II. The City of Arlington is Not Entitled to Governmental Immunity.

As noted in the City’s Motion, governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the Legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341, 41 Tex. Sup. Ct. J. 653 (Tex. 1998).  The Texas Tort Claims Act (“TTCA”) waives sovereign immunity under certain circumstances.  For instance, Texas Civ. Prac. & Rem. Code § 101.021 waives immunity and permits recovery for claimant’s injuries involving either the condition or the use of tangible personal property or real property. The statute provides that “[a] governmental unit in the state is liable for:”

(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(2)

Under this provision, a case involving real property presents the question of whether the case involves a premise defect, and is therefore governed by the standards required to establish premises liability under the TTCA. See State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). Section 101.022 provides, in relevant part, that:

(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.

In other words, if a condition to real property constitutes a premises defect, the governmental entity owes the same duty that a private landowner would owe a licensee. County of Harris v. Eaton, 573 S.W.2d 177, 178 (Tex. 1978).  To establish liability, a licensee must prove that: 1) a condition of the premises created an unreasonable risk of harm to the licensee; 2) the owner actually knew of the condition; 3) the licensee did not actually know of the condition; 4) the owner failed to exercise ordinary care to protect the licensee from danger; and 5) the owner’s failure was a proximate cause of injury to the licensee.  The City contends that Plaintiff cannot meet his burden on the second and third elements; namely, the City did not have had “actual knowledge” of the dangerous condition posed by the overgrown vegetation and the Plaintiff did have such knowledge.  For the reasons set forth more fully below, the City’s Motion for Summary Judgment should be denied.

A. A jury could reasonably infer that the City of Arlington had “actual knowledge” of the dangerous condition posed by the overgrown vegetation.

The question of knowledge is an issue of fact. See Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992).  The City contends that it is not liable to Plaintiff because there is no evidence that it had actual knowledge of the dangerous condition posed by the overgrown vegetation on Avenue E prior to the accident.  To have “actual knowledge” of a dangerous condition and waive sovereign immunity for premises defect, government entity must have knowledge that the dangerous condition existed at the time of the accident.  City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex.2006).  However, circumstantial evidence can be used to establish actual knowledge when it “either directly or by reasonable inference” supports that conclusion. State v. Gonzalez, 82 S.W.3d 322, 330 (Tex.2002); see also, City of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex.1996).  For example, in City of San Antonio v. Rodriguez, the plaintiff, while playing basketball in a recreation center, slipped in water that had dripped onto the floor from a leak in the roof. Id. at 536.  Evidence was presented that the City’s employee in charge of the recreation center knew of the leaks in the roof and knew that it had been raining.  Based thereon, the Texas Supreme Court concluded that the jury could reasonably infer that the City employee actually knew that there would be water on the floor at the time of the accident.  Id. at 537.

In this case, Mr. David Wyatt was the City employee tasked with inspection of the property at 3805 Avenue E. East for code violations.    Between August, 2010 and May, 2014, Mr. Wyatt inspected the property on forty-nine (49) separate occasions.  (See City of Arlington Disposition Report (Ex. M).); (Deposition of Michael Bass (“Bass Dep.”) at 31:19-33:9-21 (Ex. D).).  During this time, Mr. Wyatt took multiple photographs of the property, including along the southern boundary from Avenue E East, many of which included the overgrown vegetation at issue in this case.  (See attached photographs (Ex. N).)  Furthermore, as demonstrated in those and other photographs taken in September, 2013, the overgrown vegetation was of considerable size, highly conspicuous, and directly adjacent to the roadway.  (Id.); (See, photographs of the overgrown vegetation (Ex. O).).  The Director of Facilities Management for the property owner, Crown Enterprises Inc., drove his vehicle along Avenue E East and agreed that drivers’ views of the roadway were obstructed by the overgrown vegetation and that the stretch of roadway on which Plaintiff was travelling would be “much safer” if it were cut down to give a “clearer line of sight coming around the curve.” (Deposition of John Dickerson (“Dickerson Dep.”) at 43:10-22; 49:12-18 (Ex. K).).   Similarly, the police officer who investigated the accident scene testified that, based on his personal observation, the overgrown vegetation obscured a westbound driver’s the line of sight to the parking lot from which Mr. Baker emerged.  (Deposition of Oran Dart (“Dart Dep.”) at 25:18-26:16 (Ex. P).).  Finally, Plaintiff’s accident reconstruction expert inspected the scene and observed that the effect of the trees was to obscure driver visibility and create a hazard to the motoring public.  (See expert report of Danny Phillips at pp. 8-10 (Ex. Q).)  Taking into account the conspicuous character of overgrown vegetation, the obvious danger posed by its presence, the forty-nine separate occasions on which Mr. Wyatt inspected the property, and the numerous photographs he personally took of the property along Avenue E (including photographs of the overgrown vegetation), there is sufficient evidence upon which a jury could reasonably infer that the City had “actual knowledge” of the dangerous condition prior to the accident.  Rodriguez, 931 S.W.2d at 537; see also, Simons v. City of Austin, 921 S.W.2d 524, 528 (Tex.App.-Austin 1996, writ denied) (concluding evidence of two experts who testified of dangerous condition and city “must have known” of the danger was circumstantial evidence of city’s actual knowledge).  Since the City of Arlington had actual knowledge of the dangerous condition posed by the overgrown vegetation it is, therefore, liable to Plaintiff.

B. Plaintiff did not have knowledge of the dangerous condition posed by the overgrown vegetation.

The City further contends that it is immune from liability because Plaintiff had actual knowledge of the dangerous condition posed by the overgrown vegetation.  In support, Defendant cites to excerpts from Plaintiff’s deposition where he testifies that he had driven along Avenue E in the past and was aware of the presence of the overgrown vegetation along the curb of Avenue E. (Def. Mot. at 11-12). This is, however, insufficient to establish that Plaintiff had “actual knowledge” of the dangerous condition posed by the vegetation.  As stated in the Plaintiff’s affidavit filed herewith:

I had driven along Avenue E East several times prior to the accident.  While driving along Avenue E East, I had occasion to observe the vegetation/foliage; however, I never gave the vegetation/foliage any substantial thought or consideration.  Prior to this accident, I had never set foot on the vacant lot on which the foliage/vegetation is located.  I never inspected, photographed or maintained, in any way, the vacant lot on which the vegetation/foliage existed.  I was merely aware of the vegetation/foliage to the extent that I had a general sense and awareness of my surroundings driving along Avenue E East.

(See, Affidavit of Anthony Barnes (“Barnes Aff.”) at ¶ 5 (Ex. R).).

Clearly, while Plaintiff was aware of the existence of the overgrown vegetation, his knowledge did not exceed that which attends a general appreciation for one’s surroundings.  At no time was Plaintiff ever physically present upon subject property and, unlike the Defendants in this case, he was never charged with the task of inspecting, examining, photographing, mowing, or abating the property of overgrown weeds, grass or other vegetation.  More significantly, prior to the accident, Plaintiff was not aware of any actual dangers posed by the overgrown vegetation; nor was he aware that the overgrown vegetation obstructed his view of vehicles exiting from the parking lot of the adjacent property:

Prior to this accident, I had never been involved in an accident at or near the location of the vegetation/foliage to which I attributed an inability to see vehicles or trucks exiting the parking lot of the neighboring property.   Prior to this accident, I had never had to take evasive action to avoid an impending accident at or near the location of the vegetation/foliage to which I attributed an inability to see vehicles or trucks exiting the parking lot of the neighboring property. Prior to this accident, I had never otherwise encountered any vehicle, including large commercial eighteen-wheelers, exiting the parking lot of the neighboring property that I believe was obscured by the vegetation/foliage.  Prior to this accident, I had never seen an eighteen-wheeler pulling out of the parking lot of the neighboring property.  Prior to this accident, I never considered or appreciated that the vegetation/foliage would obstruct my view of eighteen-wheelers or other vehicles exiting the parking lot of the neighboring property.

(Barnes Aff. at ¶ 6 (Ex. R).); (also see, Barnes Dep. at 64:3-7 (Ex. A).).  While Plaintiff may have possessed general knowledge of the existence of overgrown vegetation along Avenue E, the evidence does not show that he had a specific appreciation for the nature of the dangers posed by its presence.  Quite simply, the City cannot impute “actual knowledge” of the specific, dangerous condition posed by the overgrown vegetation by virtue of nothing other than Plaintiff’s passive acquaintance with the vegetation itself.  See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App. – Dallas 1993) (in case where bicycle rider fell off of a retaining wall next to a creek bed in a city park, the rider’s knowledge of the existence of the creek was insufficient to establish “actual knowledge” of the dangerous condition posed by the retaining wall.)  At most, a fact issue exists as to whether Plaintiff had “actual knowledge” of the dangerous condition posed by the overgrown vegetation.  See, Keetch, 845 S.W.2d at 265 (issue of “actual knowledge” is a question of fact.)  Therefore, construing all reasonable inferences in favor of Plaintiff, the City’s Motion for Summary Judgment should be denied.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the City of Arlington’s Motion for Summary Judgment be denied and that Plaintiff be awarded such other and further relief to which she may be justly entitled.

 

Respectfully submitted,

James Craig Orr, Jr.
State Bar No. 15313550
Heygood, Orr, & Pearson
2331 W. Northwest Highway, Second Floor
Dallas, Texas 75220
214-526-7900 Telephone
214-526-7910 Facsimile

ATTORNEYS FOR PLAINTIFF