Plaintiff’s Response to Defendant Crown Enterprises, Inc.’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 lot owner filed a motion for summary judgment claiming that they should be dismissed from the case because they did not control the subject vegetation and/or because they had no notice of the alleged dangerous condition.  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 CROWN ENTERPRISES, INC.’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 CROWN ENTERPRISES, INC’S (hereinafter referred to as “Crown”) 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 head 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 Crown alleging that it negligently permitted trees, bushes, weeds and other vegetation (collectively, the “overgrown vegetation”) to grow on its property in a manner that obstructed and obscured the line of sight of drivers rounding the curve at the sight of the collision.  Crown now seeks summary judgment on the grounds that (1) it did not control the premises on which the overgrown vegetation was located and (2) it did not have notice of the dangerous condition created by the overgrown vegetation.  For the reasons set forth below, Crown’s Motion for Summary Judgment should be denied.

ARGUMENT AND AUTHORITIES

A. Crown Owed Plaintiff a Duty Because the Overgrown Vegetation was Located on Property Over Which it Had Both a Right of Control and 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).  In this case, the overgrown vegetation that created a dangerous condition for motorists is located at 3805 Avenue E East, Arlington, Texas, 76011.  In January, 2008, this property was acquired by Crown Enterprises in fee simple. (See, Special Warranty Deed dated January 10, 2008 (Ex. C).); (Deposition of Michael Bass at 11:8-10 (Ex. D).).  The meets and bounds of the property include a dedicated right of way to the City of Arlington (hereinafter, “the City”) along the southern boundary of the property.  It is within this dedicated right of way that the overgrown vegetation is located.  On that basis, Crown contends that it had no control over the overgrown vegetation and therefore owed no duty to Plaintiff.

A dedication of a right-of-way is the setting apart of private land for public use and may be effected statutorily or at common law.  Priolo v. City of Dallas, 257 S.W.2d 947, 953 n.2 (Tex. Civ. App.—Dallas 1953, writ ref’d. n.r.e.).  Here, the area where the overgrown vegetation was located was dedicated by plat for public use in 2003.  (Plat of 3805 Avenue E East (Ex. E).); (Affidavit of Stuart Young (Ex. F).).  However, an easement is a non-possessory interest in land that only authorizes its holder to use the property for a limited purpose.  Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002); State v. Beeson, 232 S.W.3d 265, 276 (Tex. App. – Eastland 2007, pet. dismissed).  A city receives easements for limited purposes from property owners and developers for streets, sidewalks, utilities and other public rights-of-way. See, eg., City of Corpus Christi v. Unitarian Church of Christ of Corpus Christi, 436 S.W.3d 923, 930 (Tex. Civ. App. – Corpus Christi 1968, writ ref’d n.r.e.).  With a dedicated right of way, the underlying ownership is retained by the property owner, while the City gains an easement to use the property for a particular purpose.  Dykes v. City of Houston, 406 S.W.2d 176 (Tex. 1966); State v. Meyer, 403 S.W.2d 366, 370 (Tex. 1966).

In this case, the undisputed evidence is that, despite the existence of the dedicated right-of-way along the southern boundary of 3805 Avenue E East, Crown retained possessory control over that property to maintain and/or remove the overgrown vegetation in a manner that would enhance the safety of motorists travelling on Avenue E.  Municipalities are permitted to require property owners to maintain their property, including areas within right-of-way or easements.  See Tex. Joc. Gov’t Code §§ 217.002, 217.022.  The City 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. (Arlington Nuisance Ordinance Section 2.02(H) (Ex. G).).  Property owners are further required 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. G).).  The City regularly issues notices to owners of property with nuisance violations in the right-of-way area between the curb line and the property line.  (Bass Dep. at 21:14-19 (Ex. D).).  If those violations are not corrected, the City will bring the property into code compliance and send an invoice to the property owner for the cost of its services. (Id. at 21:16-22:1; 27:14-18:14 (Ex. H).).  According to the 31-year Director of Public Works and Transportation for the City of Arlington, the overgrown vegetation in this case was located on land that Crown had a legal responsibility to maintain. (Deposition of Keith Melton at 26:15-29:25 Ex. H).).  The assistant director of code compliance services for the City of Arlington similarly testified that Crown had a responsibility to abate any nuisances in the form of trees or shrubs or bushes on 3805 Avenue E East “to the curb line.”  (Bass Dep. at 20:23-21:13 (Ex. H).).  From August, 2010 to May, 2014, there were 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.  (Id. at 32:22-33:25 (Ex. H).).  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.  These included:

  • A Notice of Violation of Arlington Nuisance Ordinance Section 2.02(L) issued on October 14, 2010 demanding that Crown “Edge/trim the weeds/grass along the curb area.” (See, Octber 14, 2010 Notice of Violation (Ex. I).) (emphasis added).
  • A Notice of Violation of Arlington Nuisance Ordinance Section 2.02(H) issued on May 20, 2011 demanding that Crown “Mow, Edge and Clean Entire Property including backyard, any perimeter fencing, curb lines, and sidewalk areas.” (See, May 20, 2011 Notice of Violation (Ex. J).) (emphasis added).
  • A Notice of Violation of Arlington Nuisance Ordinance Section 2.02(H) issued on April 9, 2012 demanding that Crown “Mow, Edge and Clean Entire Property including backyard, any perimeter fencing, curb lines, and sidewalk areas.” (See, April 9, 2012 Notice of Violation (Ex. K).) (emphasis added).
  • A Notice of Violation of Arlington Nuisance Ordinance Section 2.02(H) issued on May 20, 2013 demanding that Crown “mow [the] entire property, trim, edge and remove litter.” (See, May 20, 2013 Notice of Violation (Ex. L).) (emphasis added).
  • A Notice of Violation of Arlington Nuisance Ordinance Section 2.02(H) issued on May 1, 2014 demanding that Crown “mow [the] entire property, trim, edge and remove litter.” (See, May 1, 2014 Notice of Violation (Ex. M).) (emphasis added).

Prior to this accident, Crown’s policy was to ignore the notice(s), prompting the City to correct the violation(s), and then pay the City when it was invoiced for the abatement and administrative fees. (Deposition of John Dickerson (“Dickerson Dep.”) at 20:19-21; 21:15-22 (Ex. N).).  Crown has subsequently adopted a policy whereby it pays a vendor to mow the entire property, including “the grass and weeds in the right of way and in the utility easement.” (Id. at 76:7-24 (Ex. N).).  These facts completely belie Crown’s contention that it had, and has, no control over the right-of-way located on the southern boundary of the property and on which the overgrown vegetation is located.

Crown cites City of Denton v. Page, 701 S.W.2d 831 (Tex. 1986) and Wall v. Skyline Drive Motel, Inc., 2006 Tex. App. LEXIS 4979 (Tex. App. – Ft. Worth 2006, no pet.) in support of its contention that it owed no duty to Plaintiff.  Yet, neither of these cases stand for the proposition that an owner of property in fee simple has no control over, or duty to maintain, portions of that property on which an easement or right-of-way exists.  In Page, the tenant of a rental home was injured in an explosion upon entering a backyard shed used by his landlord for storage.  The tenant sued the landlord and the City of Denton on theory that the fire marshal negligently investigated previous arson complaints at that location.  The trial court rendered judgment for the plaintiff against the landlord and the City of Denton. On appeal, the Supreme Court held that the City was not liable because the facts alleged did not present a case of waiver of governmental immunity within section 3 of the Tort Claims Act. Page, 701 S.W.2d at 835.

In Wall, the passenger of a vehicle travelling on a state highway was injured after colliding with a driver who backed into his lane of travel from a service road located in front of a motel.  The plaintiff sued the motel claiming that it breached its duty to warn passing motorists of the danger caused by motel patrons entering the highway from the service road.  The Fort Worth court of appeals affirmed the trial court’s summary judgment in favor of the motel, holding that plaintiff presented no evidence that the motel owned, occupied or otherwise controlled the adjoining service road, nor that it performed any negligent act on motel property presenting a danger to persons travelling on the highway.  Simply stated, neither Page nor Wall even address the core of Crown’s argument; namely, that it did not have a possessory interest in a section of property it owned in fee simple by virtue of a dedicated right-of-way, much less support Crown’s contention that it owed no duty to Plaintiff on that basis.

3805 Avenue E East was acquired by Crown Enterprises in fee simple and within the meets and bounds of that property is a dedicated right of way to the City of Arlington. (See, Special Warranty Deed dated January 10, 2008 (Ex. C).); (Deposition of Michael Bass at 11:8-10 (Ex. D).).    Even within the dedicated right of way, underlying ownership is still retained by the property owner.  Dykes, 406 S.W.2d 176; Meyer, 403 S.W.2d at 370.  The City of Arlington requires Crown to maintain the entire property, including that portion within the dedicated right of way, to keep it free and clear of vegetation that may be unsightly or unsafe. (Arlington Nuisance Ordinance Section 2.02(H) (Ex. G).).  For nearly four (4) years, Crown was repeatedly cited and fined by the City of Arlington for failing to abate trash, weeds and grass on the property, including the portion of the property along the southern boundary and within the City’s easement.  Crown currently exercises actual control over the southern boundary of the property by paying vendors to remove grass and weeds “in the right of way and in the utility easement.” (Dickerson Dep. at 76:7-24 (Ex. N).)  In short, at all relevant times, Crown retained underlying ownership and a right of control over the southern boundary of the property on which the overgrown vegetation is located, despite the City of Arlington’s non-possessory right-of-way interest.  Accordingly, Crown 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.  For these reasons, Crown’s motion for summary judgment should be denied.  See also, Cohen v. Landry’s Inc., 442 S.W.3d 818 (Tex. App. – Houston [14th Dist.], 2014) (invoice from construction company addressed to restaurant with a proposal to repair a sidewalk adjacent to its property created material issue of fact regarding whether restaurant had actual control of a sidewalk upon which pedestrian was injured); 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).

B. Crown Owed Plaintiff a Duty Because it Had Constructive Knowledge of the Dangerous Condition Posed by the Overgrown Vegetation.

Crown also seeks summary judgment on the theory that it did not have actual knowledge of the dangerous condition posed by the overgrown vegetation.  In support, Crown cites to the deposition of its corporate representative and Director of Facilities Management, John Dickerson, who testified that Crown had no notice that any vegetation obscured the view of drivers travelling along Avenue E East.  (See, Def. Amended Motion for Summary Judgment at p. 6).  Crown also cites to testimony that it never received complaints about or was cited by the City of Arlington for the overgrown vegetation. (Id.).  On this basis, Crown contends that had no actual notice of the dangerous condition and that an essential element of Plaintiff’s claims against it fail.

A plaintiff may prove a premises liability claim by establishing that the defendant had actual or constructive knowledge of a premises defect. Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996).  Stated otherwise, a plaintiff may prove notice by establishing that the defendant actually knew that the condition was dangerous or that it is more likely than not that the condition existed long enough to give the owner-operator a reasonable opportunity to discover it. See Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002).  “Constructive knowledge,” defined as knowledge that a person, after reasonable inspection, ought to have or has reason to have, may be imputed when the premises owner-operator had a reasonable opportunity to discover and to remedy the allegedly dangerous condition. Reece, 81 S.W.3d at 814; Hall v. Sonic Drive–In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).  Here, there is a genuine issue of fact as to whether Crown had constructive knowledge of the dangers posed by the overgrown vegetation.

First, as demonstrated in the attached photographs, the overgrown vegetation was of considerable size and highly conspicuous as it was located directly adjacent to the roadway.  (See photographs of the overgrown vegetation (Ex. O).).  Plaintiff’s accident reconstruction expert inspected the scene and concluded that the “dense areas of trees…right up against the edge of the road…provides a significant visibility problem to both approaching traffic and left turning traffic like Mr. Baker.” Mr. Phillips further opined that “the presence of these trees creates a hazard to the motoring public.”  (See expert report of Danny Phillips at pp. 7-10 (Ex. P).)  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. Q).).  For his part, Crown’s own corporate representative agreed that drivers’ views of the roadway on Avenue E East 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.”  (Dickerson Dep. at 43:10-22; 49:12-18 (Ex. N).).  Furthermore, as noted above, Crown acquired the subject property in 2008. (See, Special Warranty Deed dated January 10, 2008 (Ex. C).); Over the intervening four-and-a-half years, it received at least a half-dozen citations from the City of Arlington demanding abatement of overgrown weeds and grass on the property.  (Bass Dep. at 32:22-33:25 (Ex. D).).  While Crown will argue that it was never specifically cited for the overgrown vegetation that is the subject of this litigation, it is undisputed that Crown was repeatedly notified that the property was generally overgrown and unkempt, including along the curb lines and perimeter of the property. (See, Notices of Violations, supra, (Exhbs K-O).)  Moreover, photographs of the property taken by the City of Arlington’s code compliance officer, David Wyatt, demonstrate that the overgrown vegetation was of substantially similar size and character in June, 2012, over fourteen (14) months prior to the accident.  (See attached photographs, (Ex. R).).  Taking into account the conspicuous character of overgrown vegetation, the length of time in which it was present on the property, the undisputed nature of the danger posed by its presence, and Crown’s multi-year history of repeated municipal citations for excessive foliage on the property, a jury could reasonably infer that Crown had a reasonable opportunity to discover and to remedy the dangerous condition posed by the overgrown vegetation.  Accordingly, Crown had constructive knowledge of the condition.  Cohen v. Landry’s Inc., 442 S.W.3d 818 (Tex. App. – Houston [14th Dist.], 2014) (fact issue presented as to whether displacement of concrete sidewalk by underlying tree roots created a trip-and-fall hazard for pedestrians that restaurant had a reasonable opportunity to discovery and remedy.); Sanmina-SCI Corp. v. Ogburn, 153 S.W.3d 639, 642 (Tex. App. – Dallas, 2004) (“[I]t is undisputed that [defendant] had actual knowledge that its warehouse door was broken and would roll closed unless it was propped open. … [A]lthough defendant] may not have been aware of the specific problem with the [door] rollers, it was aware of the dangerous condition created by the broken door. Simply because [plaintiff] was injured by the door in a different manner than might have been anticipated does not change the fact that …[defendant] had actual or constructive knowledge of the unreasonably dangerous condition that proximately caused [plaintiff’s] injuries.”).  Since Crown had constructive knowledge of the dangerous condition posed by the overgrown vegetation, and construing all reasonable inferences in favor of Plaintiff, Crown’s Motion for Summary Judgment should be denied.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant Crown Enterprises, Inc.’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