*1 Petitioner, COUNTY, Texas, DENTON Roger BEYNON
Dianne al.,
Individually, Respondents. et
No. 08-0016. of Texas.
Supreme Court
1,May *2 III, Krueger
William Casey W. Sean Erick, Martin, Disiere, Jefferson Wis- dom, L.L.P., Dallas, TX, for Petitioner. Mitchell, L.
James Mitchell Law TX, Group, Respondent. Dallas opinion Justice WILLETT delivered the Court, HECHT, in which Justice WAINWRIGHT, Justice Justice BRISTER, GREEN, Justice and Justice joined. JOHNSON In this premise-liability we decide floodgate whether a seventeen-foot approximately located three feet off a two- lane rural roadway “special is a defect” (TTCA). under Texas Tort Claims Act floodgate We hold the arm does not meet narrow TTCA’s definition of a defect. Accordingly, we reverse the court appeals’ judgment and dismiss the case. minor, was a back- seat in a passenger night car along unlit, Old Alton Road—an undivided two-lane County. in Denton When driver Mark Hilz noticed oncom- ing vehicle approaching in the middle of on, with bright lights moved his car right to the far side of the road, which steep pavement had a drop-off. right-side His tires then left the asphalt, dropping eight “around inches” gravel and into some loose grass. The briefly car climbed back onto control, but Hilz had lost car sideways slid grass into the where it punctured by was a seventeen-foot flood- gate arm owned and maintained Denton County.
The arm was unsecured improperly pointed oncoming toward traffic,1 tip with the of the arm about three practice It was the normal facing Denton Coun- arm was unsecured and ty Rather, to secure the wrong arm with a lock and direction. it contends point away oncoming chain and it position, traf- even in this аrm was dispute fic. Denton does not that the not a a matter of law. edge of the feet from the does not define “spe cial defect” but pierced the likens floodgate arm driver’s side “excavations or obstructions” that exist “on” area door and then entered backseat *3 surface.5 The existence of a special defect severely injurеd Bey- where it Rhiannon question is a that law we review de through non’s leg passing before the floor- exists, novo.6 Where special defect the Roger board beneath her seat. Diane and State owes duty the same to warn as a individually and as Rhiannon’s private invitee,7 landowner owes to an one friend, next County sued Denton on prem- requires that the State “to usе ordinary special-defect ise-defect and lia- theories of protect care to an invitee from a danger bility. ous condition of which the owner is or granted County’s The trial court Denton reasonably should aware.”8 plea jurisdiction to premise- the This Court has squarely never the special-defect defect claim but not on confronted whether a hazard located off claim, prompting County Denton to chal (or never) the road can can constitute a lenge interlocutory latter via ruling defect, though we note did appeal.2 appeals The court of affirmed Payne that some courts of appeals have judgment, holding trial court’s certain held off-road be spe conditions to floodgate arm to be “a condition an However, Payne clarified, cial defects.9 as roadway of the find user one,”10 on a or near “[w]hether unexpected unusually dangerous.”3 can be special tions defects like excava Because the court of con appeals’ decision “only tions or obstructions pose flicts preсedent with our as be described threat to the users of a particular low, jurisdiction we have to decide wheth roadway.”11 specifically, More a court er County’s plea should have been “classify ‘special’ cannot a defect that is granted special-defect on the claim.'4 not like excavation or obstruction on a 51.014(a)(8). § 2. See Tex. & Civ. Prаc. Rem.Code be a condition of the same class kind or as an pres excavation or obstruction and 3. 242 S.W.3d 175. unexpected danger ent 'an and unusual to " roadways.' users of State v. Rodri 22.001(a)(2), 22.225(c). (Tex. 1999) §§ guez, (per 985 S.W.2d 85 cu 4. Tex. Gov't Code (citation riam) omitted) added). (emphasis 101.022(b). § 5. says nothing "unexpect The TTCAitself about Tex. Civ. Prac. & Rem.Code danger.” phrase ed and unusual That first Dеp’t Highways Transp. Payne. 6. State appeared Pub. v. in 1992 in In that we Kitchen, (Tex.1993) (per S.W.2d 786 observed excavations and obstructions curiam). "present danger and unusual roadways.” Payne, to Dep’t Highways 7. State & Pub. v. at 238. The mandates no sec (Tex. 1992). one; prong, Payne engraft ond nor does statutory simply test is whether the condition 8. Id. the same is of class an excavation or оb "unexpected struction. We used and unusual class, 9. Id. at 238-39 n. 3. danger” Payne describe the not to upon it. Nor does case which redefine rests, Eaton, 10. Id. n. at 238 (Tex.1978), mandate that the condition, per opinion being 11. Id. A 1999 curiam this besides like an excavation or obstruction, appeared pose to add a second element to an unexpected also аnd un definition, stating danger defect must "[a] usual users. and crash into sideways car to skid roadway.”12 is clear that floodgate arm. The record injured floodgate arm that completely control of the vehicle Hilz lost is not of the same kind Beynon navigate when he tried to what called obstruction, or excavation as an class “fairly drop” along the road’s steep users” a threat nor did pavement. He testified and reenter an excavation ob manner that have prior impact, he “didn’t thus blocking the does. struction car,” that the car “was any control special- narrow the TTCA’s falls outside sideways 45-degree simply sliding Bey- a matter of law. class as *4 trees, a of that angle” clump toward and arm is an ob the contend nоns to in after the car came rest the trees by very and its “[b]y definition struction striking the arm. pur sole intended “[i]ts because nature” vehicular traffic.” This to obstruct is The dissent that few off- stresses set in the had the arm been would be true qualify conditions would as position in to block traf roadway a closed particular defects but “the circumstances fic, position a resting here it in but was presented qualify in this because the roadway, case” feet off the albeit roughly three facing unexpected posed arm was and wrong and the direction. unsecured still, “pose danger a arm did not threat an unusual to travelers. Even the First, of to users Alton the of speaks “special [Old the defects Road],” or users from prevent as or that such excаvations obstructions” (as to opposed on the road skid on impede travel the This road). ding the Our cases rest on the was of or tion not the same kind class “ordinary of an objective expectations Second, the those cited the TTCA. user,” a and such driver would not posit not an TTCA does alternative basis expected uncontrollably to off the carеen condition, special-defect liability for when a adjoining and into the obstruction, or while not an excavation is Hilz admitted when he stated grass, as ordinary.14 the the out of We understand that the “normal course travel [Old dissent’s sentiments but do not believe asphalt pave Alton would be the Road] they the much track statute or afford ment.” bright-line guidance, particularly light сase, focus on our the was neither the our users” and any
In requirement immunity that waivers be condition that forced Hilz’s car off unambiguous.15 nor condition caused the initially clear tions, (disapprov- 'present or an 838 S.W.2d at n. 3 other conditions which danger present and unusual ing cases "when the defect did not ") roadways.’ Payne's (quoting de users a users of a road- hazard scription of how excavations and obstructions way”). (citations hazards) omitted). pose such But 13. Id. conditions,” waiving immunity for "other uncommon, departs however text's per year 14. A curiam decision from explicit focus "excavations obstruc decided, suggests spe after was tions.” any poses cial can be condition that danger, unexpected and unusual even it is unex 15. Besides fact that condition's Dep't not excavation or obstruction. State pectedness is not a stand-alone basis for Kitchen, claim, Highways bringing special-defect & Pub. such unex (Tex. 1993) curiam) (per pectedness matter when a driv seems to little er, ("Special are defects excavations or obstruc this cannot steer vehicle O’NEILL, injuries joined by sustained Justiсe Chief Justice JEFFERSON and Justice unquestionably tragic; howev Beynon are MEDINA, dissenting. er, Legislature, province it is the courts, prescribe parameters It imagine anything is hard to more dangerous than seventeen-foot metal claims.16 The premise- special-defect pole pointing spear like a in the direction governmental inherent in immu trade-offs of oncoming traffic. The Court doesn’t matter, nity uniquely legislative are a concludes, however, appear disagree. specifically limited Legislature has that ordinary users of the are not conditions as exca special defects to “such expected asphalt to veer off the pavement, roads, highways, vations or obstructions on anything they might so encounter if Accordingly, or streets.”17 we decline to do cannot be a I defect. expand statutory beyond definition agree with the if the particular haz- terms.18 farther ard were from the road than the pole impaled plaintiffs vehi- Because the arm was not a *5 cle here. But departing mere three feet defect, special grant petition we for from thе road to avoid a collision is not out hearing argu- review and without oral ordinary, floodgate of the and the arm’s ment,19 appeals’ judg- reverse the court proximity close to the edge posed road’s ment and dismiss the case. threat that normal users of the road would expect. Because the Court concludes otherwise, respectfully I dissenting Justice O’NEILL filed dissent. opinion, which Chief Justice Beynon passenger was a JEFFERSON Justice MEDINA by the backseat of a vehicle driven Mark joined. driving Hilz. While on Alton Old Road in skidding uncontrollably. immunity special and is The dissent's waiver ... approach follow-up ques Act.”) invites several also claims under Tort the Texas Claims example, unexpected added). tions—for ness; who decides (emphasis Alsо, objective subjective? is the test floodgate posi were this unsecured arm 101.022(b). § 17. Tex. Civ. Prac & Rem Code eight edge tioned feet from the road's rather three, sixty than would that extra inches im 18. The dissent asserts that our notion of an “ county? City munize the See Dallas v. ‘ordinary special user' limits defects to 864, Giraldo, (Tex.App. 871-72 only appear those that within the lines be- pet.) (рarked eight Dallas no bulldozer tween the of the road.” at -. shoulders roadway edge to ten feet from the is not a speaks While the TTCA its terms of "exca- defect). special Or if the arm had roads, highways, vations or obstructions on pointed years been unsecured and like this for streets,” Tex Civ. Prac. Rem.Code longstanding without incident —would that added), 101.022(b) § (emphasis none our any unexpectedness? ness cancel We out sus previous squarely grapples cases with wheth- say pect depends, dissent would special er an off-road hazard can constitute a True, each case is different. each case has defect, and we need not decide that issue facts, unique but our decisions should aim for obviously vary today. pаtterns Fact predictability applies uniformly beyond holding are case to but we confident the case at hand. complained-of today’s that the condition in grassy arm located in a case—a Clark, Hosp. 16. See Kerrville State 923 alongside county area a rural road —does not (Tex. 1996) ("we S.W.2d must look to constitute a defect as a matter of law. the terms of the to determine the [TTCA] Giraldo, waiver”); scope of its 262 S.W.3d at ("The Legislature provided a 19. Tex P. 59.1. has limited R.App. County, dispute Hilz observed an oncom- The Court does not Denton wrong position, arm was in the brights driving ing vehicle with the vehi- impaled that the of the road. To avoid the the center down position cle or that its was unex- open ear, Hilz steered his vehiclе to- oncoming pected dangerous. con- Hilz of the road. As moved ward cludes, however, that because Hilz veered over, right pave- car tires left the his asphalt, three feet from the he was no dropped eight about inches onto ment and longer user of the road and unpaved, unimproved shoulder. Hilz County’s plea jurisdiction Denton to the turned his wheels tо the left and quickly granted. disagree. should have I been briefly. to the road But in his returned defects are “defects of the same Special car, correct of the he attempt path kind or class as ‘excavations or obstruc control. Hilz turned the car left and lost roads, highways, tions on or streets’ that by taming then tried to correct present ‘unexpected and unusual dan right, right. When turned back to ” ger roadways.’ City the front wheels left the road and the car’s Reed, Dallas v. undercarriage caught pave- (Tex.2008) (citation omitted). To be a began along ment. The vehicle slide defect, the condition must also “un forty-five degree angle road at a with its expectedly physically impair a car’s rear wheels still on the pavement. While ability to travel on the road.” State v. along the car slid pavement, flood- (Tex.1999). Rodriguez, 985 *6 gate punctured arm the driver’s door. In A defect need not occur on the arm, proper position a road, “[wjhether surface of a but on a pole a seventeen-foot attached to one, road or ... near conditions can be ground, bаse buried in the would have [special they only pose a threat defects] facing away been from traffic and secured a particular users of road However, in place. the arm was unse- way.” Dep’t Highways State & Pub. of improperly pointing cured and toward on- 235, v. 238 n. coming traffic when Hilz’s car collided with (Tex.1992). it three feet from the The pavement. arm Court concludes the door,
penetrated pierced the driver’s a special is not defect because it was not leg, through Rhiannon’s and exited blocking objective expec- the road and the stopped floorboard. The car its slide at of an “ordinary tations user” would not floodgate. base of the Hilz did not see veering include off the road and ontо the arm or realize that the car grass. But users” of roads had collided it with until he heard Rhian- lines, stray sometimes outside the else injuries non’s screams. Rhiannon’s result- there would be no need In for shoulders. amputation ed in leg view, of her below the my operators vehicle do not cease to knee. every users time veer summarily 'special 1. The Court concludes thаt strue defects' to include defects of the expressly arm "is not of the same kind or same ldnd or class as the ones men City Grapevine class as an excavation or obstruction...." tioned in the statute.” v. Roberts, 841, (Tex. 1997). significant is hard to envision a more obstruc 946 S.W.2d In view, vehicle, pole my tion piercing pole pierced than a seventeen-foot metal a mеtal a Moreover, preventing vehicle's door and floorboard. farther down the noted, examples enough as we have "The in the stat is similar to an obstruction to exclusive, ute are not and courts are to con fall within the statute's ambit. of appeals only” onto shoulder. As court lane directed traffic is a special de observed, nearly feсt); normal users of the road see Dep’t also Tex. Transp. v. surface, always drive on the yet “it Dorman, 05-97-00531-CV, No. 1999 WL certainly not is inconceivable a normal 374167 at *2-4 (Tex.App.-Dallas 10, June pull user of the might or leave the 1999, denied); pet. State, Morse v. unimproved the road onto the 470, 474-76 (Tex.App.-Beaumont another, shoulder for one reason or either denied). writ intentiоnally accidentally.” 242 S.W.3d Not all objects off-road might driver In the ordinary course of driving, encounter in course of travel debris, livestock, hazards like road or oth- qualify defects; to the contrary, er drivers who respect don’t their lanes few do. Obstructions like signs, con are often that require prudent encountered struction equipment in marked construc shoulder, drivers tо take advantage zones, tion properly secured floodgate improved whether or unimproved. The arms are not and do pose not Court’s conclusion that a driver was no an unusual danger travelers. longer user because two of his City Giraldo, See Dallas v. 262 S.W.3d tires left the result of his (Tex.App.-Dallas no pet.) escape efforts to a head-on collision is in- (holding that a parked bulldozer eight to objectively consistent with what reason- ten feet off the the road is “not of able every day. drivers do the same kind or class as the excavations recognizes that the test for or obstructions the contemplates” statute determining expectations of an ordi and “did threat to the ordinary nary user an objective is one. Yet it fails roadway”); objective analysis, conduct citing only Smoker, 719 (Tex.App. Hilz’s statement that “the ‘normal course denied) (“[A] -Houston [1st writ Dist.] of travel for [Old Alton would be the Road] ” routine, longstanding, permanent asphalt pavement.’ testimony Hilz’s *7 defect.”). tion is a special But an merely states the obvious: users of the unsecured arm pointing directly normally drive on the surface. at oncoming traffic a mere three feet from That veering doesn’t mean three feet from road’s is out ordinary, collision, the asphalt to avoid with two unexpected, extremely dangerous wheels still places on the a driver users of the beyond the normal course of travel. The Court’s concept user” limits particular Under the pre- cirсumstances special defects to appear only those that sented in this I consider the flood- within the lines between the shoulders gate arm a special defect and affirm road, contrary to our acknowledgment the court appeals’ judgment. Because in Payne that a number of courts have not, the Court I respectfully does dissent. recognized that threatening “conditions normal may users of a road
defects even though they do not occur on
the surface of a road.”
n. 3 e.g., Ciccia,
County v. Estate (Tex.App.-Houston
754-55 [1st Dist.] denied)
pet. (holding yards that a culvert
beyond the road’s end where a “right-turn