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Sepulveda v. County of EL Paso4/12/2005
Joe G. Sepulveda and Adrian Ramirez, Individually and as Next Friend of Adrian Ramirez, Jr. and Rehanne Ramirez, Minor Children, appeal from the trial court's order granting a plea to the jurisdiction asserted by the County of El Paso and Sheriff Leo Samaniego. We affirm in part and reverse and remand in part.
FACTUAL SUMMARY
In September or October 2000, employees of Jobe Concrete reported to the El Paso County Sheriff's Department that vehicles were using Cherrington Road to drag race. Cherrington Road is a paved roadway leading to the entrance of Jobe's plant on the far east side of El Paso. The portion of Cherrington which extends beyond Jobe's plant is an unpaved road used by Jobe's vehicles. Jobe complained that the drag racing was hindering its business operations because the vehicles would line up "two by two" and would not let anyone pass.
Cherrington Road was dedicated for public use by the developer in 1973 but it has never been placed in the county road system. Consequently, the County has not assumed the responsibility for maintaining the road. Jobe paved a portion of Cherrington Road in order to facilitate entrance into the plant. Jobe also placed "no drag racing" signs along the roadway. Unpaved portions of Cherrington Road are still used by Jobe's company trucks.
On December 13, 2000, Deputy Jorge Andujo spoke with Jobe's production assistant manager, Victor Garcia, about the drag-racing problem. Andujo knew from prior experience that the drag racers escaped the deputies' attempts to stop them by driving on the dirt roads at high rates of speed, posing a danger to themselves and the deputies. In order to contain the drag racers and prevent them from escaping from the deputies on the unpaved portion of the road, Andujo asked Garcia if Jobe would construct a berm fifty feet from the end of the paved portion of the roadway. Garcia told Andujo that he would first have to check with Jobe's vice president, Irene Eperson. Upon receiving approval from Eperson, Garcia told Andujo that they would build the berm that afternoon and then remove it the following morning. Andujo maintains that he did not specify the details of how the berm would be built by Jobe, but Garcia recalled that Andujo told him to build the berm across the entire road so that no one could go through onto the unpaved road. No one from the Sheriff's Department was present when Jobe constructed the berm. Garcia instructed a Jobe employee to build a small sand berm using one of Jobe's front end loaders. He told the employee to build it no higher than two feet but there is evidence that the berm was three to five feet in height, or perhaps even taller.
At approximately 8 p.m. on December 13, 2000, Deputy Andujo and three other deputies arrived on Cherrington Road and saw numerous vehicles. Although the deputies had activated their emergency lights and sirens, several vehicles fled at a high rate of speed on Cherrington. Andujo and the other deputies did not give chase because the road was blocked by the berm. Andujo watched several vehicles apply their brakes at the end of the road and turn around. But three vehicles did not turn around. Two of them turned into Jobe's employee parking lot in an effort to hide from the deputies. The third vehicle, a small, dark-colored four-wheel-drive truck, escaped. Andujo and the other deputies did not see any vehicles collide with the berm.
The following afternoon, Adrian Ramirez filed an accident report with the Sheriff's Department. While driving his black Toyota four-wheel-drive truck on Cherrington the previous evening sometime between 8 and 9:30 p.m., he collided with the dirt and rock berm which he estimated to be fo
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