 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Texas Department Of Transportation v. O'Malley8/10/2000
ate is liable for "personal injury and death so caused by a condition or use of . . . real property if the governmental unit would, were it a private person, be liable to the claimant. . . ." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997). The general standard of care the state owes as an owner or occupier of realty is that owed to a licensee. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a) (Vernon 1997). However, subparagraph (b) of § 101.022 provides that this limitation of duty does not apply "to the duty to warn of special defects such as excavations or obstructions on highways. . . ." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) (Vernon 1997). When there is a special defect, the state owes highway users the higher standard of care due invitees. Payne, 838 S.W.2d at 237. That duty is to either make the highway reasonably safe or to adequately warn of the hazard. Id.
A condition may constitute a special defect only if it is of the same kind or class as an excavation or roadway obstruction and presents "an unexpected and unusual danger to ordinary users of roadways." State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); State Dept. of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam); see Burris, 877 S.W.2d at 299. "Special defects unexpectedly and physically impair a car's ability to travel on the road." Rodriguez, 985 S.W.2d at 85.
Like an excavation or obstruction, a roadway covered with an excessive amount of loose gravel is not something motorists can reasonably be expected to anticipate. In the instant case, a stretch of roadway, 200 feet in length and consisting of a curve, was covered with one-half cubic yard of loose gravel. We conclude the loose gravel condition presented an unexpected and unusual danger to the ordinary user of FM 766.
TxDOT argues that even though there was gravel on the road, the road still maintained very good traction. This may be true, but the existence of traction does not discount the unexpected nature of the excess gravel on the road. Trooper Bartee testified he would not expect to find this amount of gravel on a highway without some kind of warning, and he felt it was unsafe. Emma Jean Losolla testified that she did not expect to see that much gravel on the road as she went into the curve. Keith Gohlke testified that if he had seen the curve in the condition it was in at the time of the accident, he would have considered it an unsafe condition. Elroy Molina testified that there was an "excess amount of gravel in the curve," and there was "more gravel than normal," at the scene of the accident.
TxDOT contends that in City of San Benito v. Cantu, 831 S.W.2d 416, 421 (Tex. App.-Corpus Christi 1992, no writ), this Court held there can be no special defect if a danger is open and obvious and observable by anyone. TxDOT contends that the "gravel in question was open and obvious to a reasonabl prudent motorist exercising ordinary caution." TxDOT has misinterpreted San Benito, and its contention is without merit.
In San Benito, our discussion of "special defects" examined the holding in Payne v. City of Galveston, 772 S.W.2d 473, 477 (Tex. App.-Houston [14th Dist.] 1989, writ denied). We stated: "Payne suggests that a special defect precludes actual knowledge and that there can be no special defect if a danger is open and obvious and observable to anyone." San Benito, 831 S.W.2d at 421. This is only a discussion of the reasons given by the Payne court for not finding the drop-off of the seawall a "special defect." The Payne court discussed the drop-off as a dangerous condition observable by everyone and that Mrs. Payne had walked along the seawall from one-half hour to on
Page 1 2 3 4 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|