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Texas Department Of Transportation v. O'Malley8/10/2000
e hour the day before and observed the drop-off during this walk, and Mr. Payne testified that he believed the drop-off was readily apparent to his wife. Payne, 772 S.W.2d at 477. This is the "obvious" dangerous situation that this Court referred to in San Benito. See San Benito, 831 S.W.2d at 421. In San Benito, we merely discussed the suggestions made by the Payne court concerning the relationship between an obvious danger and the finding of a "special defect;" we did not hold that "open and obvious" characteristics precluded a "special defect." Id.
We believe the loose gravel condition in this case is more similar to the "slick, muddy" condition mentioned in State v. McBride and the "water on the roadway" condition mentioned in Department of Highways & Pub. Trans. v. Zachary. Both of these conditions were found to be "special defects." We conclude the loose gravel condition was a special defect within the meaning of section 101.022(b) of the civil practice and remedies code. We hold the trial court did not err in ruling, as a matter of law, that the condition was a special defect. TxDOT's first point of error is overruled.
5. Motion for Judgment Notwithstanding the Verdict
In its second and third points of error, TxDOT contends the trial court erred in overruling its motion for judgment notwithstanding the verdict because the loose gravel constituted a "premises defect" and there is no evidence to support the jury findings that: (1) TxDOT had actual knowledge of the dangerous condition and (2) Emma Jean Losolla did not actually know of the condition on the road.
We have concluded that the roadway condition was a special defect within the meaning of section 101.022(b) of the civil practice and remedies code. In a "special defect" case the state owes the same duty to warn as a private landowner owes to an invitee and the elements of proof required to establish a breach of this duty are: (1) a condition of the premises created an unreasonable risk of harm to the invitee; (2) the owner knew or reasonably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee from danger; and (4) the owner's failure was a proximate cause of injury to the invitee. Payne, 838 S.W.2d at 237.
Appellees did not have to prove that TxDOT had actual knowledge of the dangerous condition and that Emma Jean Losolla did not actually know of the condition on the road. TxDOT's second and third points of error are overruled.
The judgment of the trial court is AFFIRMED.
FEDERICO G. HINOJOSA Justice
Publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the 10th day of August, 2000.
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