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Munoz v. City of Pearsall8/22/2001
AFFIRMED
Enrique and Juanita Munoz appeal from the rendition of summary judgment for the City of Pearsall on their personal injury suit. We affirm.
Background
Early in the afternoon of November 17, 1995, a Pearsall police officer saw a railroad crossing arm-one that regulated westbound traffic on Comal Street-lying in the road; the officer removed it. About an hour later, another police officer saw that the eastbound crossing arm was stalled in a down position, although there was no train approaching.
The Chief of Police ordered the officer to direct traffic through the intersection by hand. The officer stayed at the intersection for about two hours, then was ordered back on routine patrol when a strong storm moved into the area. At some point late in the afternoon, the eastbound arm that had been stalled in a down position was removed, ostensibly by the officer at the intersection or another city employee.
Enrique Munoz traveled through the intersection a half dozen times that day. He noticed the westbound arm was missing, saw the police officer regulating traffic, noticed the eastbound arm was also removed, and drove through the intersection twice after the officer had left. The second time he did so, at about 6 p.m. in a heavy rain, he collided with a train and was seriously injured.
Pearsall does not own the crossing or any of the mechanisms in place to regulate the crossing, and had no authority to repair the equipment. Although the police dispatcher sent several notices to Union Pacific, no railroad employee came to the site before the accident. Munoz sued the city and the railroad; he settled with Union Pacific. Munoz argues the city owed him a common-law duty after it assumed control of the intersection, and contends the city's immunity from suit is waived under any one of various sections of the Civil Practices and Remedies Code. The summary judgment does not specify the trial court's basis for the ruling.
Negligence and Immunity
In his first issue, Munoz contends the trial court erred when it did not find the city was negligent. He argues the city undertook an affirmative course of action for the benefit of the public when it assumed control of the intersection, thus the city owed him a duty to exercise reasonable care so that he would not be injured. Texas has long recognized the rule that "one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby." City of Denton v. Page, 701 S.W.2d 831, 836 (Tex. 1986). Munoz contends in his remaining points of error that the trial court erred in not finding that the city was liable under one of the available waivers of sovereign immunity. The city denies it was negligent, and characterizes its acts as falling squarely within the exception to waivers of immunity because the acts involved a method of providing police protection or were merely the failure to perform an act not required by law.
A defendant may move for a summary judgment based on an affirmative defense, such as immunity, and must prove conclusively all elements of the affirmative defense as a matter of law, such that there is no genuine issue of material fact. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). We take all evidence favorable to the non- movant as true, and indulge every reasonable inference from the evidence of the non-movant, and resolve any doubts in its favor. See Montgomery, 669 S.W.2d at 311.
Governmental entities are generally immune from tort liability. Dallas County Mental Health & Mental Retardati
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