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Texas Department Of Transportation v. O'Malley8/10/2000
Appellant, Texas Department of Transportation ("TxDOT"), appeals from the trial court's finding of a special defect under the Texas Tort Claims Act, a jury verdict in favor of appellees, Kevin O'Malley, Next Friend of Steven Losolla, Elizabeth Losolla, Nicole Losolla, and Lorenzo Losolla, Minor Children, and Emma Jean Losolla, and the trial court's denial of its motion for judgment notwithstanding the verdict. By three points of error, TxDOT contends the trial court erred by ruling as a matter of law that the loose gravel condition on the roadway was a "special defect" and by overruling its motion for judgment notwithstanding the verdict. We affirm.
1. Background
On May 22, 1994, Emma Jean Losolla was driving with her sister-in- law, Ermalinda Losolla, and Ermalinda's children, Steven and Elizabeth, on Farm to Market Road ("FM") 766 in DeWitt County, Texas when she lost control on a curve and collided with an oncoming pickup truck. Emma, Steven, and Elizabeth were injured, and Ermalinda was killed in the accident. Emma sued to recover damages for her personal injuries, and Sylvia O'Malley sued as Next Friend of Ermalinda's minor children, Steven, Elizabeth, Nicole, and Lorenzo.
Appellees alleged that TxDOT created a "special defect" on FM 766 by allowing an accumulation of loose gravel to remain on the road following maintenance work on May 20, 1994, and that TxDOT failed to warn of the roadway condition or make it reasonably safe. Appellees did not plead a "premises defect."
The record reflects that on Friday, May 20, 1994, TxDOT performed a "spot seal coat" on the northbound lane of FM 766. TxDOT's road crew sprayed hot asphalt on the northbound lane of the highway, spread aggregate on the area, and rolled the aggregate into the asphalt with a flat wheel roller. The specifications and requirements for a "spot seal coat" are set out in "Item 316" of the "Standard Specifications for Construction of Highways, Streets and Bridges," adopted by TxDOT on March 1, 1993. Item 316.4 requires: The finished surface shall be cleared of any surplus aggregate . . . by sweeping or other approved methods after all rolling is completed.
Keith Gohlke, the supervisor of TxDOT's road crew that did the repair work on FM 766, testified that after the job was completed: We did not have no surplus of rock. There was no excess of rock after we got through with that job.
Gohlke admitted the crew did not have a broom with them on May 20, 1994, but said it was their standard practice to sweep the site on the day after the aggregate was spread and rolled. However, if the work was done on a Friday, the crew would not check the area until Monday.
On Sunday, May 22, 1994, the Losollas traveled northbound on FM 766 to the Stevenson Prison Unit just outside of Cuero. After they arrived at the prison, they were advised that visitors could not wear shorts; they had to wear something below their knees. One of the prison guards advised them that they could get slacks at the Wal-Mart store in Cuero. The Losollas got back in their car and returned on the same road (FM 766), now traveling southbound, to Cuero. A reverse curve sign, designating a speed limit of 40 mph, was located one-fourth of a mile from the curve where the accident occurred. There was no sign indicating loose gravel on the road. Emma Jean Losolla admitted that as she approached the curve, she was talking to Ermalinda and they were trying to figure out where the Wal-Mart store was located. While traveling on the curve, Emma lost control of the car, crossed into the oncoming traffic lane, and collided with a pick-up truck.
Department of Public Safety Trooper Alex Bartee
Page 1 2 3 4 Texas Personal Injury Attorneys
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