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Cranford v. City of Pasadena2/29/1996
Affirmed and Opinion filed.
February 29, 1996.
O P I N I O N
In this wrongful death and survivorship suit, appellants (the "Cranfords") challenge a summary judgement granted in favor of the City of Pasadena (the "City") and Harris County (the "County") on the grounds that (1) the City and County had a duty to correct an allegedly improperly positioned strain pole with which the Cranfords' automobile collided, and (2) fact issues existed (a) whether maintaining the strain pole in an allegedly improper location was a non-discretionary act, (b) whether the allegedly improper location of the strain pole was a premise defect or special defect, and (c) whether the City was negligent in maintaining the street where the collision occurred. We affirm.
On October 24, 1991, an automobile accident occurred at a major intersection in the City of Pasadena in Harris County, Texas. A vehicle driven by Wendy Cranford and occupied by Rebecca and John Corich was struck by another car, causing the Cranford vehicle to strike a strain pole (the "pole") which was positioned 21" from the curb of the road on which the vehicles were traveling. Cranford and her two passengers died as a result of the collision.
The Cranfords, who are family members and estates of the deceased, filed suit against the City and County under common law and the Texas Tort Claims Act (the "Act") claiming that the City and County were negligent in placing the pole too close to the curb and in failing to correct that placement upon receiving notice that it was dangerous.
The City and County jointly moved for summary judgement on the grounds that the Cranfords' suit is barred by governmental immunity because (1) the pole was placed at the intersection prior to January 1, 1970, the effective date of the Act, and not thereafter changed; and (2) the acts of which the Cranfords complain are discretionary acts, not subject to liability under the Act. See Tex. Civ. Prac. & Rem. Code Ann. Section(s) 101.056, 101.061 (Vernon 1986). In their response, the Cranfords argued that (1) even though the pole was constructed prior to 1970, the City and County had notice that the pole was defectively constructed and failed to correct it in violation of the Act, and that (2) continued use of the pole as constructed was not a discretionary decision. In July of 1994, the trial court granted a take-nothing summary judgement without stating the basis therefor.
Summary judgement is proper where the movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law on the issues set out in the motion. Tex. R. Civ. P. 166a(c). Summary judgement based on an affirmative defense, such as governmental immunity, is proper only if the movant establishes conclusively all the elements of the defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); City of Houston v. Bush, 566 S.W.2d 33, 35 (Tex. Civ. App.-Beaumont 1978, writ ref'd n.r.e.) (stating that a plea of governmental immunity is a defensive doctrine and the government has the burden of submitting and proving it). In reviewing a summary judgment, we accept as true all evidence favoring the non-movant, and indulge every reasonable inference and resolve all doubts in the non-movant's favor. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995). When a summary judgment does not specify the grounds upon which it was granted, it will be affirmed if any of the grounds advanced in the motion is meritorious. State Farm Fire and Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
We preface our discussion of the specific issues by reviewing
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