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Texas Department Of Transportation v. O'Malley8/10/2000
investigated the accident. Bartee testified there was more loose gravel in the southbound lane of FM 766 than in the northbound lane. He opined there was more loose gravel in the southbound lane because as cars traveled over the "spot seal coat" in the northbound lane, centrifugal force pushed the gravel into the southbound lane. Bartee performed a coefficient of friction test on the roadway to determine traction. The test was performed on the roadway before it was cleaned, and Bartee determined the coefficient of friction to be 0.665. According to Bartee, the average coefficient of friction on farm roads of this type is between 0.6 and 0.7.
TxDOT was informed of the accident and asked to clean up the loose gravel. TxDOT personnel arrived at the scene of the accident between 1:00 and 1:30 p.m. on Sunday, May 22, 1994, and picked up one-half cubic yard of aggregate from the roadway. Elroy Molina, TxDOT's Maintenance Supervisor, testified that the loose gravel was distributed over the entire length of the curve, approximately 200 feet, and covered both lanes of the roadway. Molina said the loose gravel he observed at the scene would have covered a small dump truck to a depth of three to four inches.
2. Procedural History
TxDOT moved for a directed verdict on the ground that appellees had not proven premises defect liability, but the motion was overruled. TxDOT subsequently moved for a directed verdict on the ground that the defect was not a "special defect." That motion was also overruled. The case was then submitted to the jury on a "special defect" charge, to which TxDOT objected.
The jury found that Emma Jean Losolla and TxDOT proximately caused the collision, and that each was fifty percent negligent. The jury also found that:
(1) Emma Jean Losolla sustained damages in the amount of $7,500;
(2) Steven Losolla sustained damages in the amount of $150,500;
(3) Elizabeth Losolla sustained damages in the amount of $126,500;
(4) Nicole Losolla sustained damages in the amount of $95,000; and
(5) Lorenzo Losolla sustained damages in the amount of $113,000.
TxDOT filed a motion for judgment notwithstanding the verdict contending the defect was a "premises defect" and not a "special defect" as was submitted to the jury. TxDOT alleged there was no evidence that: (1) the condition posed an unreasonable risk of harm; (2) TxDOT had actual knowledge of the danger; (3) Emma Jean Losolla did not have actual knowledge of the danger; and (4) TxDOT knew or should have known of the dangerous condition. The trial court overruled the motion. TxDOT then filed this appeal.
3. Standard of Review
Whether a condition is a "premises defect" or a "special defect" is a question of law. State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994) (per curiam); State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992). We review a trial court's conclusions of law de novo. Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629, 631 (Tex. App.-San Antonio 1997, writ denied); Piazza v. City of Granger, 909 S.W.2d 529, 532 (Tex. App.-Austin 1995, no writ). A conclusion of law will be reversed if it is erroneous as a matter of law. Ellison, 956 S.W.2d at 631.
4. Special Defect
In its first point of error, TxDOT complains the trial court erred in ruling as a matter of law that the loose gravel condition on the roadway was a "special defect." TxDOT contends that while the character of the roadway may have changed, there is nothing that shows the condition was a "special defect."
The Texas Tort Claims Act provides the st
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