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Lucker v. Texas Department of Transportation

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 3, 2017

GEOFFREY LUCKER, Appellant,
v.
TEXAS DEPARTMENT OF TRANSPORTATION, Appellee.

         On appeal from the 21st District Court of Lee County, Texas.

          Before Justices Benavides, Longoria and Hinojosa

          MEMORANDUM OPINION

          NORA L. LONGORIA Justice.

         Appellant Geoffrey Lucker, the surviving husband of Sally Lucker, filed a derivative premises liability suit against the Texas Department of Transportation ("the Department") after Sally died during a flood. The trial court signed a take-nothing judgment in favor of the Department. Lucker argues in two issues that the trial court erred in submitting two questions to the jury as part of the jury charge. We affirm.

         I. Background[1]

         On March 20, 2012, the Department received information that water was likely to flood a number of roads in Lee County and dispatched all available employees to respond to the situation. Paul Meinke, an assistant maintenance supervisor for the Department, was in charge of the Department's response. Meinke testified that, beginning in the early morning, he monitored flooding at different areas, including where FM 1624 crosses the Middle Yequa Creek, the location where Sally was swept off. The water flowed under FM 1624 through a box culvert, referred to at trial as a "bridge."

         Throughout the day, Meinke put out a number of signs at different locations. One of the signs Meinke placed prior to the accident was a large temporary "Watch For Water On Road" sign, which also displayed two flags; the sign was placed next to a smaller, permanent sign, with the same message, on the approach to the bridge later used by Sally. The temporary sign was four feet by four feet in size, bright orange, and its flags were red-orange in color. The permanent sign was yellow, and three feet by three feet in size.

         These signs were located about 2, 500 feet from the bridge. As the water rose about 600 feet past the bridge, the signs were about 1, 900 feet from the water at the time of the accident. Meinke testified that a car traveling at 60 miles per hour would reach the water in about thirty seconds after passing the two signs. These signs complied with the Manual on Uniform Traffic Control Devices ("MUTCD"). Meinke claimed that he did not use his truck to block the approach to the bridge because if he did, his vehicle might be struck by another vehicle.

         At 5:00 p.m. Meinke returned to the bridge to monitor the rising water, and if necessary, call for barricades. Meinke testified that he believed that motorists would turn away from the water because of the two "Watch for Water On Road" signs, the flood gauge, and the flashing lights on his truck. At about 7:00 p.m. the water had topped the road. Because the water was rising rapidly, at 7:15 p.m. Meinke ordered that barricades and road closed signs be brought to both sides of the bridge, but these did not arrive until after the incident.

         Meinke then decided to warn nearby oil field workers of the danger of the rising water because they might attempt to drive on after it was unsafe to do so, and because the workers had been the subject of a helicopter evacuation one month before. Meinke had backed his pickup truck up to the oil field pad driveway, about 1, 100 feet from the bridge, and had walked about 150 feet down the driveway when he heard Lucker's vehicle pass. He ran to this truck and drove back to the bridge in time to see Sally's car floating down the Middle Yegua and then sink beneath the water. Geoffrey sued the Department, and the case went to a jury trial.

         Over the objection of Lucker, the trial court submitted to the jury a charge containing two questions concerning the emergency exception in the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.055 (West, Westlaw through Ch. 49, 2017 R.S.). Respectively, these questions asked, "Was Texas Department of Transportation employee Paul reacting to an emergency situation in regard to flooding conditions existing at the time of the accident?" and "Was the accident which is the subject of this suit proximately caused by the conscious indifference or reckless disregard of the safety of others on the part of Paul as an employee of the Texas Department of Transportation?" The jury answered these questions by finding that Paul was reacting to an emergency situation, and that the accident was not proximately caused by conscience indifference or reckless disregard on the part of the Department. Id. The jury also found that both Sally Lucker and the Department were negligent, assigning Sally Lucker 49% and the Department 51% responsibility.

         After the verdict, both parties filed competing motions for the entry of a favorable final judgment. The Department filed a response to Lucker's motion, although Lucker did not respond to the Department's motion. The Department's motion for entry of a take nothing judgment was based on four independent grounds: (1) the emergency exception; (2) lack of any evidence that Lucker did not know of the danger; (3) lack of any evidence that the Department did not warn of the danger; and (4) no duty was owed because the condition was open and obvious.

         Lucker's Amended Motion to Disregard Jury Findings addressed the first issue of the Department's motion regarding the emergency exception, but Lucker never filed a response to the other three issues raised by the Department's motion regarding: (1) Lucker's knowledge of the danger, (2) the Department's warning of the danger, and (3) the open and obvious nature of the danger. A hearing was held on both motions on April 22, 2016, and once again, while Lucker presented argument and authority regarding the emergency exception, he made no mention of the other three issues raised in the Department's motion for a take-nothing judgment. The trial court then took both motions under advisement.

         Lucker's motion was denied by way of a separate order of April 22, 2016. On that same day a final judgment was signed that specifically sustained the Department's motion for a take-nothing judgment ...


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