Boatman v. Lites

In Boatman v. Lites, 970 S.W.2d 41 (Tex. App.--Tyler 1998, no writ), the Lites maintained that the Boatmans negligently diverted the natural flow of water from their land onto the Lites' land by the use of "berms." The Lites alleged this to be negligence and a violation of Section 11.086 of the Texas Water Code. Id. at 43. The jury returned a judgment for actual and punitive damages. On appeal, the Boatmans claimed there was insufficient evidence to support a submission of gross negligence and an award of exemplary damages. "Gross negligence" was defined: "More than momentary thoughtlessness, inadvertence or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected." Id. at 45. The punitive damage award was upheld on appeal. The Boatmans built a "berm" that diverted surface water off of their property and onto the Liteses' neighboring property. See Boatman, 970 S.W.2d at 46. When the Liteses asked the Boatmans to remove the berm, they refused to do so. Id. The Court summarized the ensuing exchanges between the parties as follows: "Approximately one year prior to the filing of this suit, the Liteses hired counsel to write the Boatmans, requesting that they refrain from diverting surface water. Mr. Boatman testified that he ignored the letter and thought it was ridiculous. When further pressed as to why he thought the request was ridiculous, he said "because I'm me and that's the way I think." After the trial court issued a temporary injunction ordering the Boatmans to remove the berm, they did not remove the dirt, but spread it out, further building up their property. When Mr. Lites attempted to talk to Mr. Boatman about the berm and the erosion problems, Mr. Boatman used profanity against him. The erosion caused by the building of the berm covered an area approximately seven feet by twenty feet. The eroded property was located at the extreme corner of the Liteses' property opposite from their home and not located within the vicinity of any other structures. On numerous occasions, the Liteses attempted to repair the damage done to their land, but were unable to do so" Id. Considering the foregoing, this court concluded that: (1) there was evidence that both the Liteses and the trial court informed the Boatmans that the diversion of surface water was causing damage to the Liteses' property; (2) the Boatmans denied that they had even built the berm despite evidence to the contrary; (3) there was evidence that the Boatmans did not comply with the temporary injunction to refrain from diverting water from their property. See id. Accordingly, the court held that there was sufficient evidence to support a finding that the Boatmans were subjectively aware that they were creating a risk of damage to the Liteses' property. See id.