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Gonzales v. Trintiy Industries12/9/1999
blows from cooling towers onto highway); Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 350 (Tex. App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.) (nursing home patient with known tendency to wander onto highway darts onto highway and knocks down motorcyclist); Beaumont Iron Works Co. v. Martin, 190 S.W.2d 491, 495 (Tex. Civ. App.-Beaumont 1945, writ ref'd w.o.m.) (windowpane falls from building onto adjacent sidewalk).
In Hamric v. Kansas City Southern Railway, however, the Beaumont Court of Appeals held that the rule of Alamo Bank governed a situation in which private landowners permitted tall grass and weeds to grow on property abutting the intersection where an accident occurred. 718 S.W.2d 916, 917-18 (Tex. App.-Beaumont 1986, writ ref'd n.r.e.). The Hamric court saw no difference between obstruction of vision caused by smoke drifting over a highway and obstruction of vision caused by tall grass and weeds. Id. at 918.
The appellants contend Hamric presents "very similar facts" to those in the present case. We do not agree.
The intersection in Hamric was controlled by a stop sign, but the intersection in the present case was controlled by signal lights. Appellants do not contend the fence obstructed the drivers' views of the signal lights, only the drivers' views of the cross-traffic. The law does not require a person to anticipate negligent or unlawful conduct on the part of another. DeWinne v. Allen, 277 S.W.2d 95, 98 (Tex. 1955); Lawson v. B Four Corp., 888 S.W.2d 31, 35 (Tex. App.-Houston [1st Dist.] 1994, writ denied). We decline to extend Hamric to the present situation.
In deciding whether to impose a duty, a court is to consider the risk, foreseeability, and likelihood of an injury weighed against the social utility of the actor's conduct, magnitude of the burden of guarding against injury, and consequences of placing that burden on the actor. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Application of this balancing test leads us to hold Trinity had no common-law duty under the facts presented here.
Of the factors the court is to consider, foreseeability is the foremost and dominant consideration. Id. The test for foreseeability is "what one should under the circumstances reasonably anticipate as consequences of his conduct." McCullough v. Amstar Corp., 833 S.W.2d 312, 315 (Tex. App.-Amarillo 1992, no writ) (quoting City of Dallas v. Maxwell, 248 S.W. 667, 670 (Tex. Comm'n App.1923, holding approved)). As previously stated, there is no legal requirement that a person anticipate negligent or unlawful conduct on the part of another. DeWinne, 277 S.W.2d at 98; Lawson, 888 S.W.2d at 35.
A decision of the San Antonio Court of Appeals is instructive. In Fetty v. Miller, the court held that a private property owner owed no common-law duty to a passing motorist for a visual obstruction created by a vehicle parked on his property. 905 S.W.2d 296, 302 (Tex. App.-San Antonio 1995, writ denied). No one had complained during the nine years the owner had lived on the property and parked his employer's vehicle in front of the house on a regular basis. Id. The owner also stated he was not aware of any accident at the intersection and had no reason to anticipate one. Id. Having concluded the owner could not reasonably foresee that his vehicle would create a hazardous condition, the court did not consider the other balancing test factors.
In the present case, Trinity Structural Division vice president James Randall Foil stated that, during the period from March 1987 until October 1998, he had received no complaints regarding the fence. More specifically he stated he had received no complaint
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