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Gonzales v. Trintiy Industries12/9/1999
s that the fence obscured or blocked the view of any driver, thereby causing an automobile accident. Based on his review of Trinity's business records, he stated there had been no claim against Trinity by any lawful or unlawful users of Center Street or Yale Street, either before or after Trinity acquired the property and the fence in 1973.
We acknowledge that, in response to Trinity's motion for summary judgment, the appellants produced statistical and opinion evidence indicating (1) several accidents had occurred between cars traveling in the same directions at the same intersection where the accident in question occurred and (2) a higher than average rate of accidents had occurred for the particular quadrant involved. What is missing is any indication that obstruction of the drivers' vision was actually a factor in these accidents.
We also acknowledge that appellants produced opinion evidence indicating that, if there were nothing stored in the area behind the fence, visibility could have been restored by removing the opaque slats without removing the fence. In their motion for a new trial, the appellants introduced additional evidence relating to the feasibility of modifying the fence: postaccident photographs showing the corner of the fence removed. We nevertheless decline to place a burden at common-law on landowners to assess whether there is sufficient visibility at intersections adjacent to their property and to remove previously existing structures, particularly when the intersection is regulated by a signal light.
We hold Trinity owed no common-law duty under the circumstances presented by this case.
Negligence Per Se
The appellants also contend that Trinity owed them a duty as "illustrated" by a Houston ordinance relating to trees, shrubs, and screening fences. The unexcused violation of an ordinance constitutes negligence as a matter of law if such ordinance was designed to prevent injury to the class of persons to which the injured party belongs. El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 1987); Nixon, 690 S.W.2d at 549. Generally, the threshold question in negligence per se cases is whether the plaintiff belongs to the class that the statute or ordinance was intended to protect and whether the injury was of a type the statute or ordinance was intended to prevent. Osti, 991 S.W.2d at 327.
The real issue before this court, however, is whether the ordinance is intended to cover Trinity's previously constructed fence. See Holder v. Mellon Mort. Co., 954 S.W.2d 786, 792 (Tex. App.-Houston [14th Dist.] 1997) (real issue is whether ordinance is intended to cover defendant's property), rev'd on other grounds, 42 Tex. S. Ct. J. 1159 (Sept. 9, 1999) (plurality). We conclude it does not.
The ordinance to which the appellants refer this Court provides:
The requirements of this article shall only apply to a building site where any of the following conditions is present:
(i) there is new construction of a nonresidential or multi-family residential building for which a building permit is required;
(ii) there is an enlargement exceeding 1,000 square feet in an area of the exterior dimensions of an existing nonresidential or multi-family residential building for which a building permit is required; or
(iii)there is either a new parking lot for which site plans are required for initial construction under the provisions of chapter 26 of this Code or an existing parking lot which is expanded in area to provide additional parking spaces. Houston, Tex., Ordinance 91-1701, ยง 33-102(a) (Dec. 4, 1991, since amended).
According to Foil, Trinity acquired th
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