Court of Appeals of Texas, Dallas.

Beverly BRAVERMAN and Robert Braverman, Appellants,

v.

CITY OF DALLAS, Texas, Appellee.

No. 05–97–02045–CV.

|

Feb. 4, 2000.

Before Justices KINKEADE, WRIGHT, and O’NEILL.

OPINION

WRIGHT.

*1 Beverly and Robert Braverman (the Bravermans) appeal a jury verdict in favor of the City of Dallas (the City) in a premises liability suit. In two issues, the Bravermans contend the trial court erred by (1) submitting a jury question based on a premises defect rather than a special defect; and (2) denying their motion for new trial. We overrule both issues and affirm the trial court’s judgment.

Factual and Procedural Background

On September 18, 1993, Beverly Braverman tripped and fell on Hillcrest Parkway, a City street, as she walked to her car with her husband, Robert Braverman. The Bravermans were returning to their car after a Greek festival at a nearby church. According to the Bravermans, Mrs. Braverman tripped over some broken pavement and fractured her ankle and shoulder. The Bravermans sued the City and Western Alliance Investment Group, Inc. (Western Alliance), claiming they were each negligent by failing to warn of the dangerous road condition or to make it safe.¹ Prior to trial, the court entered an interlocutory default judgment finding Western Alliance liable. Western Alliance has not appealed the default judgment. In the judgment, the trial court noted that the amount of damages would be determined at trial. After hearing the evidence and argument of counsel, the jury found no negligence on the part of the City or Mrs. Braverman and also found the Bravermans suffered no damages.

Jury Charge

In their first issue, the Bravermans contend the trial court erred in submitting a jury question based on a premises defect rather than a special defect. According to the Bravermans, base failures and cracks in the road constituted a special defect and the trial court erred by concluding otherwise. We disagree.

We review an alleged error in a jury charge for an abuse of discretion. See Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The trial court abuses its discretion when it acts without reference to any guiding principles. See id. A trial court’s error in the jury charge is reversible only if it is reasonably calculated to and probably did cause the rendition of an improper verdict. See Louisiana–Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998); Tex.R.App.P. 44.1(a)(1).

The Texas Tort Claims Act, which allows governmental liability for premises defects, provides for application of different standards of care depending on whether the defect is a premises or a special defect. See Tex.Civ.Prac. & Rem.Code Ann. §§ 101.021, 101.022 (Vernon 1997). If the condition is a premises defect, the governmental entity must simply refrain from injuring a licensee through willful, wanton, or grossly negligent conduct. See City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex.1997). In contrast, if the condition is a special defect, the governmental entity owes the same duty that a private landowner owes an invitee. That duty requires the landowner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the landowner is or reasonably should be aware. See id.

*2 Determining whether a particular defect is an ordinary defect or a special defect is a question of law, which the court determines based on statutory interpretation in light of the particular facts of a case. See City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex.1999). Special defects are “defects such as excavations or obstructions on highways, roads, or streets.” See Tex.Civ.Prac. & Rem.Code Ann. § 101.022(b). Special defects are generally characterized as unexpected and unusual dangers to ordinary users of the roadway. See State Dep’t of Highways and Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992). Therefore, a longstanding, routine, or permanent condition is generally not considered a special defect. See Mitchell v. City of Dallas, 855 S.W.2d 741, 748 (Tex.App.—Dallas 1993), aff’d, 870 S.W.2d 21 (Tex.1994) (recognized as superseded by statute on other grounds).

At the time of Mrs. Braverman’s accident, neither of the Bravermans knew what caused Mrs. Braverman’s fall. Subsequently, Mr. Braverman returned to Hillcrest Parkway and photographed the approximate area of the accident. Mr. Braverman testified various portions of the road contained three to five inch wide cracks. This inspection led him to conclude Mrs. Braverman must have fallen because of the condition of the road. However, even at trial, the Bravermans could not point to a particular area of the road where Mrs. Braverman fell or a particular defect that caused the fall.

Paula Venner, an inspector for the City, testified that she examined Hillcrest Parkway approximately one month before the accident. She rated the area where Mrs. Braverman fell as unacceptable. The inspector based this rating on the roadway having numerous base failures and cracks. However, the testimony established this rating system was meant for vehicular traffic rather than pedestrian traffic. Luther Robertson testified he inspected the road after the City received the Bravermans’ complaint. According to Robertson, the street had approximately one inch displacements. Furthermore, James Jameson, a resident of Hillcrest Parkway, testified he and his wife had walked down the road for nineteen years without any problems. He testified there were no cracks in the road three to five inches wide, as Mr. Braverman claimed. He also testified joggers regularly use the road and he had never seen anyone fall.

After considering all of the evidence presented at trial, we conclude the trial court did not abuse its discretion in submitting a charge on a premises defect rather than a special defect. The condition of the road was not similar to the type of excavation or obstruction the statute describes as a special defect. See Tex.Civ.Prac. & Rem.Code Ann. § 101.022(b). Furthermore, the defect was permanent in nature and was not an unexpected or unusual danger. See Payne, 838 S.W.2d at 238. Therefore, the trial court did not abuse its discretion in refusing to submit a jury question on a special defect. We overrule the Bravermans’ first issue.

Damages

*3 In their second issue, the Bravermans contend the trial court erred by denying their motion for new trial because the jury’s finding of no damages was against the great weight and preponderance of the evidence. In response to jury questions regarding what sums of money would fairly and reasonably compensate the Bravermans for their injuries that “resulted from the occurrence in question,” the jury awarded zero damages. The Bravermans complain of this finding in relation to the default judgment and their potential recovery against Western Alliance. The standard of review for alleged error in failing to grant a new trial is abuse of discretion. See Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex.1994). We review the finding under a sufficiency standard to determine if the trial court abused its discretion. See Kessler v. Fanning, 953 S.W.2d 515, 520 (Tex.App.—Fort Worth 1997, no writ); Sanchez v. King, 932 S.W.2d 177, 180 (Tex.App.—El Paso 1995, no writ). We may only set aside a finding if it is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. See Cain v. Bain, 709 S .W.2d 175, 176 (Tex.1986).

Mrs. Braverman testified that as she walked back to her car from the festival, her ankle turned and she was thrown to the ground by reflex action. Mr. Braverman stated “all of the sudden, she just like lurches forward and slams into the ground.” As mentioned, at the time of the accident, the Bravermans did not know what had caused the fall but subsequently concluded it was caused by the condition of the street. Mrs. Braverman even testified at trial that as she walked to the festival, she did not see anything wrong or notice anything unusual about the street. She also testified she walked back to her car in generally the same way she had walked to the church.

The jury question asked for the damages “caused by the occurrence in question.” Based on the evidence presented at trial, the jury could have reasonably concluded Mrs. Braverman’s fall was simply an accident and not caused by any condition of the road. Thus, we conclude the jury’s response to this question was not so against the overwhelming weight of the evidence as to be manifestly unjust. Consequently, the trial court did not abuse its discretion in denying the Bravermans a new trial. We overrule their second issue.

We affirm the trial court’s judgment.

	Footnotes
1		The Bravermans also sued several persons and entities who were no longer parties at the time of trial.