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Gonzales v. Trintiy Industries12/9/1999
Petition for review denied March 30, 2000.
HENRY GONZALES; JOANN MOYA; ROSANNE GONZALES; VICTOR MARTINEZ; WILLIAM R. MORRIS, INDIVIDUALLY AND AS NEXT FRIEND OF JAMES MORRIS; JOSIE MORRIS; AND VIRGINIA MORRIS, INDIVIDUALLY AND AS NEXT FRIEND OF LAUREN MORRIS, APPELLANTS
v.
TRINITY INDUSTRIES, INC., APPELLEE
On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 96-24732-A
Panel consists of Justices O'Connor, Wilson, and Andell.
The opinion of the court was delivered by: Davie L. Wilson Justice
Opinion issued December 9, 1999
OPINION
The appellants, plaintiffs in the wrongful death action below, appeal a summary judgment in favor of the appellee, Trinity Industries, Inc. ("Trinity"). We affirm.
FACTS
This case arises from an automobile accident that occurred March 30, 1996, at the intersection of Yale and Center Streets in Houston. Nelson J. Carasco, was traveling east on Center Street when he struck the vehicle driven by Ralph R. Rivera, who was driving southbound on Yale Street. Olga Gonzales, a passenger in Rivera's car, died from her injuries. James Morris, another passenger in Rivera's car, sustained incapacitating injuries. According to the police report, both drivers claimed they entered the intersection on a green light. Neither driver was insured.
Trinity owns property adjacent to the northwest corner of the intersection. A chain link fence surrounds the property. The fence sits wholly on Trinity's property, but at the time of the accident, it extended to the corner of that property. It had strips woven into it, which prevented people from seeing through the fence.
PROCEDURAL BACKGROUND
The appellants sued Trinity, alleging that its fence obstructed the views of both drivers and was the proximate cause of the accident. Trinity moved for summary judgment on the ground that the appellants' negligence claim lacked the essential element of duty. Trinity asserted, "The [appellants] have not pled a violation of statute, nor have they pled negligence per se; their claim against Trinity arises under the common law." The appellants then filed a sixth amended original petition, alleging that Trinity breached its duty in part by "failing to obtain a permit to construct a fence on, within or near a city right-of-way in violation of city ordinances pertaining thereto." Trinity next filed special exceptions to the sixth amended petition requesting the court to order the appellants to specify the ordinances on which they were relying. The court granted Trinity's request and ordered the appellants to plead with specificity before 5:00 p.m. on December 11, 1998.
On December 16, 1998, because the appellants had not complied with the court's order to plead with specificity, Trinity moved the court to strike the paragraph in the sixth amended petition alleging an ordinance violation. On December 23, 1998, the court granted Trinity's motion for summary judgment. On January 26, 1999, the court granted Trinity's motion to strike the paragraph from the sixth amended petition.
On January 22, 1999, the appellants had filed a seventh amended petition. They realleged common-law negligence. They also alleged Trinity had breached its duty,
In failing to obtain a permit to construct a fence on, within or near a city right-of-way in violation of city ordinances pertaining thereto, and specifically violating ordinance section 33-101, which creates a visibility triangle and prohibits visu
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