#### Joyce Ann SIMONS, City of Austin, Appellants, v. CITY OF AUSTIN, Joyce Ann Simons, Appellees.

No. 03-95-00493-CV.

Court of Appeals of Texas, Austin.

May 1, 1996.

Rehearing Overruled May 29, 1996.

*526Christopher L. Elliott, Pluymen & Ivy, P.C., Austin, for Appellants.

Andrew F. Martin, City Attorney, Molly D. Shannon, Assistant City Attorney, Austin, for Appellees.

Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.

KIDD, Justice.

A jury awarded appellee Joyce Ann Si-mons $200,000 in damages for injuries sustained when a wooden partition fell on her at the Hancock Recreation Center, a facility owned and operated by appellant City of Austin (the “City”). The trial court rendered judgment on the jury verdict, and the City now appeals. We will affirm the judgment of the trial court.

BACKGROUND

On August 28, 1989, Simons was struck on the back when a three-panel, wooden parti*527tion constructed and used by the Hancock Recreation Center (the “Center”) fell on her as she sat at a nearby table. As a result, Simons suffered various injuries for which she sued the City of Austin. At the time of her injury, Simons was a member and officer of the Capital Solos Square Dancing Club, a non-profit organization that regularly used the Center for its square dancing. Simons sued the City under a premises liability theory, alleging that the City negligently failed to make the premises reasonably safe and failed to warn her of the danger posed by the partition.

In response to the City’s motion for partial summary judgment, the trial court ruled that Simons was a licensee in relation to the City of Austin.1 A licensor has a duty not to injure a licensee by wilful, wanton or gross negligence. *See Lower Neches Valley Auth. v. Murphy,*536 S.W.2d 561, 563 (Tex.1976). However, even when a licensor is not grossly negligent, if a licensor has actual knowledge of a dangerous condition, and the licensee does not know of the condition, the licensor has a duty either to warn the licensee or to make the premises reasonably safe for the licensee. *See id.; State v. Tennison,*509 S.W.2d 560, 562 (Tex.1974); *City of San Benito v. Cantu,*831 S.W.2d 416, 421 (Tex.App.—Corpus Christi 1992, no writ). At trial, the jury found that the City knew of the danger posed by the partition and that Si-mons did not know of the danger. Accordingly, the jury found that the City violated its legal duty to Simons by failing to make the premises reasonably safe and failing to warn her of the danger the partition posed to her. The jury found the City 100% responsible for the accident and awarded Simons $200,000 in compensatory damages.

The City appeals the judgment in four points of error, claiming: (1) the evidence at trial was legally and factually insufficient to prove that the City had actual knowledge of the danger the partition posed; (2) the City should have been granted governmental immunity under the Texas Tort Claims Act; (3) the trial court abused its discretion when it submitted a question to the jury regarding gross negligence and exemplary damages; and (4) there was insufficient evidence to support the amount of damages awarded by the jury.

DISCUSSION

*A Actual Knowledge*

In its first point of error, the City argues that the evidence at trial was legally and factually insufficient to prove that it had actual knowledge of the danger the partition posed to Simons. In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. *Burroughs Wellcome Co. v. Crye,*907 S.W.2d 497, 499 (Tex.1995); *Best v. Ryan Auto Group, Inc.,*786 S.W.2d 670, 671 (Tex.1990). We will uphold the finding if more than a scintilla of evidence supports it. *Crye,*907 S.W.2d at 499; *Seideneck v. Cal Bayreuther Assocs.,*451 S.W.2d 752, 755 (Tex.1970); *In re King’s Estate,*150 Tex. 662, 244 S.W.2d 660, 661 (1951). The evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case. *See Crye,*907 S.W.2d at 499; *Transportation Ins. Co. v. Moriel,*879 S.W.2d 10, 25 (Tex.1994); William Powers, Jr. & Jack Ratliff, *Another Look at “No Evidence” and “Insufficient Evidence,”*69 Tex.L.Rev. 515, 522 (1991).

When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. *Cain v. Bain,*709 S.W.2d 175, 176 (Tex.1986); *In re King’s Estate,*244 S.W.2d at 661; *see also Pool v. Ford Motor Co.,*715 S.W.2d 629, 635 (Tex.1986); see *generally*Powers & Ratliff, *supra.*

The City claims that the evidence showing that it had actual knowledge of the danger the partition posed to Simons amounted to no *528more than a scintilla of evidence and was therefore legally insufficient to sustain the jury’s verdict.' Alternatively, appellant argues that the partition was not a condition which posed an unreasonable risk of harm, and, as a result, the City had no duty to warn Simons. We disagree.

At trial Ms. Josie Nanyes, the custodian of the Center and an employee of the City at the time of Simons’s accident, testified that if the partition was not set up in a certain manner, with the feet of the partition lined'up in a particular way, the partition was dangerous because it would fall over. Ms. Nanyes also testified that when she stored the partition, she leaned it up against a wall to prevent the partition from falling over. Ms. Nanyes’ testimony is direct evidence that the City, through its employee, had actual knowledge of the danger posed by the partition. Simons also presented two expert witnesses at trial who testified that, in their professional opinion, the partition was dangerous, and the City must have known of the danger.2

Ms. Nanyes’s testimony, coupled with that of the two expert witnesses, is more than a scintilla of evidence to show that the City had actual knowledge of the partition’s danger and that the partition was, in fact, dangerous. Thus, the evidence is legally sufficient to support the jury’s verdict. *See Crye,*907 S.W.2d at 499. Additionally, we are unable to say that the evidence supporting the verdict was so weak as to make the verdict clearly wrong and manifestly unjust. *See Cain,*709 S.W.2d at 176. The evidence was therefore factually sufficient to sustain the jury’s verdict. We overrule appellant’s first point of error.

*B. Governmental Immunity*

In its second point of error, the City contends that the trial court erred when it held on summary judgment that the City was not immune from liability under the Texas Tort Claims Act. Simons brought her action under a theory of premises liability. The Texas Tort Claims Act specifically allows suits against the government for premises liability. *See*Tex.Civ.Prac. & Rem.Code Ann. § 101.021(2) (West 1986). The City argues that the design and construction of the partition was a discretionary act, which makes it immune from liability for resulting injuries. *See id.*§ 101.066. We disagree with the City’s interpretation of the Texas Tort Claims Act.

The discretionary act exemption to the Tort Claims Act only applies to policy decisions. *See State v. Terrell,*588 S.W.2d 784, 787 (Tex.1979); *Norton v. Brazos County,*640 S.W.2d 690, 692 (Tex.App.—Houston [14th Dist.] 1982, no writ); *Christilles v. Southwest Tex. State Univ.,*639 S.W.2d 38, *41-42*(Tex.App.—Austin 1982, writ ref'd n.r.e.); *Forbus v. City of Denton,*595 S.W.2d 621, 623 (Tex.Civ.App.—Fort Worth 1980, writ ref'd n.r.e.). The situation in *Forbus v. City of Denton*is analogous to the present case. In *Forbus,*the court held that the decision to provide mattresses in jail cells was discretionary. *Id.*However, the decision as to which particular type of mattress to use in the jail cells was an operational decision subjecting the city to liability. *Id.*Likewise, the *decision to use*wooden partitions to hide unsightly gym equipment stored in the Center might be considered a discretionary act. *See City of El Paso v. Ayoub,*787 S.W.2d 553, 554 (Tex.App.—El Paso 1990, writ denied). However, the *actual design and construction*of the partition was an operational decision. *See Forbus,*595 S.W.2d at 623. Simons’s cause of action only attacked the *condition*of the partition, not the *decision*to construct and use it. Thus, the City of Austin was properly denied governmental immunity under section 101.056 of the Texas Tort Claims Act. Accordingly, we overrule the City’s contention in this regard.

*C. Gross Negligence and Exemplary Damages*

As part of its second point of error, the City claims that the trial court erred by *529faffing to determine, before the jury’s verdict, whether operation of the Hancock Recreational Center was a governmental function, and thus governed by the Texas Tort Claims Act, or a proprietary function not subject to governmental immunity. Also, in its third point of error, the City complains that the trial court erred by submitting a question to the jury on gross negligence and exemplary damages. Because these two issues are inter-related, we will discuss them together.

When considering these issues, it is helpful to understand the interplay between the Texas Tort Claims Act and the doctrine of governmental immunity. Before the Texas Legislature enacted comprehensive tort-reform laws in 1987, municipalities were liable, just like a private citizen would be liable, for a number of different activities that Texas courts had concluded were proprietary in nature. *See City of Corsicana v. Wren,*159 Tex. 202, 317 S.W.2d 516, 522 (1958) (Calvert, J., concurring); John T. Montford & Will G. Barber, *1987 Texas Tort Reform: The Quest For A Fairer and More Predictable Texas Civil Justice System,*25 Hous.L.Rev. 59, 121-28 (1987). However, in 1987, the Legislature declared that many of the municipal activities considered proprietary under the old law would thereafter be deemed governmental. *See*Tex.Civ.Prac. & Rem.Code Ann. § 101.0215 (West Supp.1996). Thus, these changes significantly limited the types of actions for which municipalities could be held liable.

The Texas Tort Claims Act is an exception to the general proposition that government is immune from suit for personal injuries resulting from governmental functions. *See id.*§ 101.021. The Act lists certain governmental functions for which a municipality can be held liable. *See id.*§ 101.0215(a). However, the Act also places a cap on the amount of compensatory damages a person can receive for injuries, even when a municipality is held liable. *See id.*§ 101.023(c). More importantly in this case, the Act specifically bars exemplary damages. *See id.*§ 101.024.

At trial, the City contended that operation of the Center was a governmental function under section 101.0215(a) of the Act. *See*Tex.Civ.Prac. & Rem.Code Ann. § 101.0215(a)(17) & (23) (West Supp.1996). Section 101.0215(a) states that a municipality is liable for “damages arising from its governmental functions, which are those functions that are enjoined on a municipality ... to be exercised by the municipality in the interest of the general public_” *Id.*Subsection 17 specifically holds municipalities, such as the City of Austin, liable for the operation of “community, neighborhood, or senior citizen centers.” *Id.*§ 101.0215(a)(17). Subsection 23 states that municipalities are liable for operating “recreational facilities.” *Id.*§ 101.0215(a)(23). The City argued that its operation of the Center falls within the purview of these provisions. In other words, the City contended that, if it was not immune from liability under the discretionary act exemption, it was only liable to the extent the Texas Tort Claims Act made it liable for governmental functions under § 101.0215(a).

Simons, on the other hand, argued that despite the changes created by tort reform, the City’s operation of the Center should properly be deemed a proprietary function. Section 101.0215(b)(2) states that “amusements owned and operated by the municipality” are proprietary in nature and, thus, not covered by the Texas Tort Claims Act. *See*Tex.Civ.Prac. & Rem.Code Ann. § 101.0215(b)(2) (West Supp.1996). Simons wanted the trial court to rule that the operation of the Center was a proprietary amusement under section 101.0215(b)(2) because the Act’s prohibition on punitive damages would then not apply to her ease against the City. *See id.*§ 101.024. Thus, if operation of the Center could properly be labeled proprietary, Simons would be entitled to a submission of both gross negligence and exemplary damages.

The City responded that operating the Center was not the same as operating an amusement. *See, e.g., Hornsby v. Crystal Beach Park,*41 S.W.2d 82, 83 (Tex.Civ.App.—San Antonio 1931, writ dism’d w.o.j.) (public amusement involves roller coasters, merry-go-rounds, etc.). The City pointed out that the Center was used to teach various hobbies such as dance, karate, gymnastics, *530and oil painting. It was also used by civic groups like Girl Scouts, Boy Scouts, and the Big Brothers and Big Sisters organization. The City contended that the type of activities that took place at the Center more clearly fit within the statutory provisions describing governmental acts.

Rather than deciding the issue before verdict, the trial court carried the decision until judgment. In the charge to the jury, the trial court included a question on gross negligence and a conditional question on exemplary damages. The jury returned a finding that the City was liable under Simons’s premises liability theory, but did not find the City grossly negligent. As a consequence, the jury never considered exemplary damages. The City contends that the trial court committed reversible error in two respects: (1) by deferring its ruling on the governmental versus proprietary issue until after the verdict, and (2) by submitting a question on exemplary damages to the jury because they are prohibited under the Tort Claims Act. We reject the City’s argument.

The trial court is given broad discretion in deciding when to rule on a particular issue and how to submit the ease to the jury. *See Clark v. Turner,*505 S.W.2d 941, 945 (Tex.Civ.App.—Amarillo 1974, no writ). Because Simons had been determined on partial summary judgment to be a licensee, submission of a gross negligence question was proper as an alternate ground of liability. *See Lower Neches Valley Auth.,*5B6 S.W.2d at 563 (“a licensor is under the duty of not injuring a licensee by willful, wanton or *gross*negligence....”) (emphasis added). Thus, only the submission of the exemplary damage question depended on the characterization of the City’s action as proprietary or governmental.3 The trial court submitted the issue to the jury, reasoning that the decision would not be necessary if the jury found no gross negligence and that, if the jury did award punitive damages, the issue could be finally determined at the time of judgment. The jury found that the City was not grossly negligent, and the trial court therefore avoided making an unnecessary ruling. We hold that the trial court did not abuse its discretion. On the contrary, the court acted in accordance with sound notions of judicial economy by submitting the case in a fashion that eventually made a difficult decision unnecessary.

Even if the trial court abused its discretion, the City cannot show harm. The jury determined that the City was *not*grossly negligent and therefore never reached the issue of exemplary damages. The City argues that merely submitting the question to the jury was inherently harmful to its case, but cites no authority for such a proposition. Because the jury did not reach the exemplary damages question, any error by the trial court in submitting the question was not calculated to, and probably did not, cause the rendition of an improper judgment. *See*Tex. R.App.P. 81(b)(1); *see Dion v. Ford Motor Co.,*804 S.W.2d 302, 309 (Tex.App.—Eastland 1991, writ denied). In *Dion,*which involved a situation similar to the one at bar, the jury was given a conditional instruction which could only be reached if the jury first found the answer to the question preceding the instruction in the affirmative. Because the jury answered the question in the negative, it never reached the issue presented in the instruction. The court held that even though the instruction was legally erroneous, there was no harm because the instruction was not considered by the jury. *Id.*We agree with the *Dion*court’s analysis and therefore overrule the City’s points of error in this regard.

*D. Evidence Supporting Damages*

In its final point of error, the City argues that there was no evidence or insufficient evidence to support the damages awarded by the jury. The City attempts to discredit the jury’s award of $200,000 in damages by reciting the evidence presented at trial suggesting that the accident did not cause Simons’s injuries. For example, the City points to the impaired condition of Simons’s back before *531the partition struck her at the Hancock Recreation Center. Also, the City argues that it was scientifically impossible for the partition to have struck Simons in such a way as to cause her temporomandibular joint (TMJ) problems. In contrast, Simons offers a recitation of the medical evidence supporting her contention that she was injured by the partition. Both sides presented expert testimony regarding the cause and extent of Simons’s injuries. The jury heard all of the evidence and determined that the City was totally responsible for Simons’s injuries and that she was entitled to $200,000 in damages.

The jury is the sole judge of the credibility of witnesses and is entitled to accept or reject any testimony it wishes, as well as to decide what weight to give the testimony. *See Texaco, Inc. v. Pennzoil, Co.,*729 S.W.2d 768, 791 (Tex.App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.), *cert. dismissed,*485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988); *Rego Co. v. Brannon,*682 S.W.2d 677, 680 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.). In the present case, the jury obviously accepted the testimony of Si-mons’s witnesses over the City’s witnesses. In other words, the jury found Simons’s witnesses more credible than the City’s witnesses or gave their testimony more weight.

After reviewing all of the evidence presented by both sides concerning Simons’s injuries, we conclude that there is more than a scintilla of evidence supporting the jury’s verdict. Additionally, we cannot say that the jury’s finding is supported by evidence so weak as to make the verdict manifestly unjust. The evidence was sufficient to support a jury verdict in either direction. The case turned on which witnesses the jury believed. We cannot substitute our judgment when a jury verdict is grounded in sufficient evidence. *See Cain,*709 S.W.2d at 176. We overrule appellant’s fourth point of error.

CONCLUSION

Having overruled each of appellant’s points of error, we affirm the judgment of the trial court.

1

. Simons argues in her independent appeal that she was an invitee rather than a licensee. Because we will affirm the trial court’s judgment, we need not address the issue.

2

. Although this expert testimony is circumstantial evidence of the City's actual knowledge, the jury is allowed to consider circumstantial evidence when determining whether the City had actual knowledge of the danger. *See Torrez v. Standard Brand Paint,*795 S.W.2d 13, 14 (Tex.App.—El Paso 1990, writ denied); *H.E. Butt Grocery Co. v. Pena,*592 S.W.2d 956, 959 (Tex.Civ.App.—Austin 1980, no writ).

3

. We note that the Texas Supreme Court has held that when there is intentional, willful, or grossly negligent conduct on the part of a municipality, exemplary damages may be appropriate. *See City of Gladewater v. Pike,*727 S.W.2d 514, 522-24 (Tex.1987). Although doubt has been cast on the continuing viability of the *Pike*decision, it has never been specifically overruled. *See Odessa v. Bell,*787 S.W.2d 525, 527-28 (Tex.App.—El Paso 1990, no writ).