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Texas Department Of Transportation v. Velasco2/28/2001
Dissenting opinion by: Alma L. López, Justice
REVERSED AND DISMISSED FOR LACK OF JURISDICTION
This appeal arises from personal injury lawsuits filed by Victor Velasco, Jr., and the survivors of Jose M. Bejarano and Alfredo Hinojosa, Jr. Bejarano and Hinojosa died as a result of injuries they sustained in an accident that occurred when the car they were traveling in struck a tractor trailer that was stopped on the highway, waiting to approach the international bridge to enter Mexico. Velasco was also injured, but survived the accident. The plaintiffs, appellees in this appeal, sued several defendants, including the appellant, the Texas Department of Transportation (the Department). In their petition, the appellees-plaintiffs alleged that the Department was negligent in allowing a dangerous condition to exist.
The petition described the dangerous condition as "the congestion of the eighteen-wheeler traffic becoming stalled and at a complete stop for an unreasonably dangerous time causing a hazardous condition on the highway for the ordinary users of said highway and for the citizens of Laredo." In response, the Department filed a plea to the jurisdiction. Therein, the Department contended it was immune from suit because "vehicles on the roadway do not constitute a premises defect under the tort claims act." The plaintiffs responded that their injuries were caused by a dangerous condition on the roadway that constituted a special defect. The trial court denied the Department's plea to the jurisdiction, and the Department appealed.
As a state agency, the Department is immune from suit except to the extent waived under the Texas Tort Claims Act (the Act). See Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (Vernon 1997) (establishing waiver of governmental immunity); Federal Sign v. Texas Southern University, 951 S.W.2d 401, 405 (Tex. 1997) (state is immune from suit absent express consent). The Act provides a limited waiver for personal injuries or death caused by the wrongful act, omission, or negligence of an employee using a motor vehicle within the scope of his employment, or a condition or use of real property; i.e., a premises defect. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.025, 101.021(2) (Vernon 1997). This limitation does not apply, however, to special defects. Id. § 101.022. Where a special defect exists on a roadway, the governmental unit that owns the road has a duty to warn drivers about the defect, even if the governmental unit did not create the defect. See Morse v. State, 905 S.W.2d 470, 474 (Tex. App.-Beaumont 1995, pet. denied). Whether a condition is a premise defect or a special defect is a question of law for the court to decide. State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992). The plaintiffs-appellees did not plead operation or use of a motor vehicle by a Department employee, so a cause of action can only be based on a condition of real property.
On appeal, the Department argues that the trial court erred by denying its plea to the jurisdiction because traffic congestion does not constitute either a premises or a special defect. Although the plaintiffs-appellees contend that "stopped and/or queued eighteen- wheeler commercial traffic from the Border into I-H-35 for unreasonable long periods of time at unexpected times and unexpected locations is a hazardous condition on the highway and constitutes a special defect," the Supreme Court of Texas determined in State v. Burris that " fully operational motor vehicle, making an illegal movement or momentarily stopped on a highway, is neither a defect in the highway premises nor an excavation or obstruction or similar condition." State v. Burris,
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