*1 your request ‘Pursuant for docu- DEPARTMENT OF TEXAS request

mentation the Defendant’s TRANSPORTATION, attorneys for fees contained its De- Summary Appellant, Judg- fendant’s Motion for ment, copies enclosed are redacted evidencing invoices in- fees costs curred.’ Stephanie and Ronnie GUTIERREZ invoices,’

I have received these ‘redacted Gutierrez, Appellees. 12, 2004; April which were dated March No. 04-06-00583-CV.

7, 2004; 14, 2004; May 2004; June 12, 2004; 9, 2004; July August Sep- Texas, Appeals Court of tember 2004 and find there to be San Antonio. complete missing description of the performed, work a substantial amount of Sept. 2007. spent duplication legal time ser- Rehearing Overruled Oct. 2007. vices, apparently unnecessary expense. time and

Therefore, in my professional opinion, attorneys’ fees sought by and costs

Fort Davis State Bank in the amount of

$8,087.51 $1,800.00 are neither rea- necessary, particularly

sonable nor as to $1,800

the amount of prosecution

the motion for summary judgment, Brewer,

which by estimate Mr.

without provided documentation

this figure. argue

The Mitchells they since con- affidavit,

tested Brewer’s they raised a fact precluding summary

issue judgment.

Despite request the Bank’s for fees in $8,087.51 $1,800,

the amount of $5,000.

trial court awarded The Mitchells

must show the fees were unreasonable or Hill,

unnecessary. See they

This have failed to do. Because the

trial court’s range award was within the Bank,

proven the trial court did not

abuse its discretion. Issue Four is over- Having

ruled. overruled all of all issues review, judgment we affirm the

trial court. *3 applying the seal coat. To

ment before coat, swept, apply the seal is applied, layer is layer asphalt of hot down, aggregate (gravel) placed rock is compact, it aggregate is rolled make layer asphalt of hot finally a second Generally, applied. after a Aston, Gen., Adam W. Asst. Solicitor applied, are layer asphalt of hot Ratliff, Gen., Atty. Michael H. Asst. Aus- to set before TxDOT waits for the seal tin, Appellant. off sweeping the excess the road. *4 Vidaurri, Nye, Lyde, F. & Thomas Gault case, layer of hot as- this the second L.L.P., Quintana, Anthony, Anthony Brett phalt applied was on December L.L.P., Purnell, Corpus Peterson & 4, 2003, swept but not until the afternoon Christi, Appellees. Prior of December 5th. to the road re- sign speed Ahead” with a pair, a “Curve STONE, Justice, Sitting: CATHERINE advisory forty-five miles hour was MARION, Justice, SANDEE BRYAN repair, the road place. Coinciding with SIMMONS, Justice. REBECCA sign. posted TxDOT a “Loose Gravel” question, Stephanie morning theOn OPINION and her husband driving was on FM 624 SIMMONS, Opinion by REBECCA following Ronnie several minutes be- was Justice. lost control of her Stephanie hind. After gravel, car the loose she called her Department Transporta- The Texas (“TxDOT”) off the pulled husband appeals tion the district court’s damage. Shortly there- inspect her car for plea jurisdiction denial of its to the after, lost control of Veronica Maldonado argues that and Ronnie Stephanie Gutier- car, curve, and struck her at the same rez’s claims should be dismissed for lack of testified she trav- Stephanie. Maldonado subject jurisdiction. matter We affirm the every day, that she noticed eled FM 624 trial because the excessive court’s denial advisory signs and as speed the curve and defect and the constituted curve, her vehi- slowed approached she jury found failed to per hour. forty miles approximately cle to Also, warn of this defect. because Ronnie neither she She further testified injured” pur- a “person Gutierrez is hit her vehicle before heard nor felt Act, poses of the Texas Tort Claims control and never saw began she to lose to the correctly plea trial court denied the hitting During her. Stephanie prior to jurisdiction. affirm the Accordingly, we trial, TxDOT’s disputed the Gutierrezes trial court. near sign posted

claim of a Loose Gravel However, after the close of the curve. BACKGROUND evidence, closing arguments, and before injured in a Stephanie Gutierrez was presence stipulated to the Gutierrezes accident, FM motor vehicle on a curve of sign. of the Loose Gravel County, approximately 624 in Jim Wells at merits, jury Following trial on the 2003. TxDOT 6:30 a.m. on December Stephanie, in favor of day process returned a verdict repairing was FM a three respect with negligent tearing up finding that involved the road surface jury deter- of the road. mixing pave- cement with the milled the condition Miller, 51 S.W.3d Dep’t for Ronnie’s Crim. Justice mined TxDOT was not liable (Tex.2001)). however, the extent there tri- To alleged bystander injury; regarding jurisdictional granted questions al court Ronnie’s motion for new are fact by issues, be resolved Judgment trial. Motion for Not- “the fact issue will TxDOT’s Miranda, or, Alternatively, withstanding the the fact finder.” Verdict case, Trial, jurisdic- to the by plea for a New the trial 228. In this denied until after all the evi- plaintiffs’ stipulation court. Based on the tion was not raised by parties regarding sign, the Loose Gravel TxDOT dence was submitted jury post-trial plea jurisdiction filed a to the returned its verdict. The to the arguing immunity negligent respect under the Texas Tort with found TxDOT (“TTCA”) Act alleging Claims its condition of FM 624.1 discharged warn was as a matter of law Immunity Sovereign placement signs. The trial court plea, ap- denied the and this accelerated provides that the State The TTCA

peal ensued. immunity sovereign “person- waives its *5 by injury al and death so caused a condi- appeal: TxDOT raises three on issues (1) if property tion or use of ... real the the cannot state an action- Gutierrezes would, private were it a governmental unit premises-liability able claim under the (2) ...” Tex. TTCA; person, be hable to the claimant bystander Ronnie’s claim fails 101.021(2) §Ann. Civ. PRAC. & Rem.Code immunity; to invoke a waiver of TxDOT’s (Vernon (3) Supp.2006). premises In a liabili- by fading to assert claims within claim, ty duty by the waiver, governmen- the owed the TTCA’s the Gutierrezes failed dependent tal unit is on the condition of subject invoke the district court’s mat- property. the Civ. Prac. & Rem.Code jurisdiction. ter Tex. (Vernon § If Supp.2006). 101.022 the Ann. ordinary premise an de- road condition is STANDARD OF REVIEW fect, duty pri- same a the state owes the subject Whether a trial court has a vate landowner owes licensee. Tex. Civ. jurisdiction matter a question of law. 101.022(c). § Prac. & Rem.Code Ann. Miranda, Dep’t Tex. Parks & v. of Wildlife (Tex.2004). 217, We, Generally, duty 133 S.W.3d 226 the landowner therefore, ruling injure review the trial is not the court’s de owes a licensee licensee willful, jurisdic novo. at 228. In considering through grossly negli Id. or wanton pleas, pleadings gent Dep’t Highways tional we review the & conduct. State of 235, jurisdiction evidence relevant to Transp. Payne, the issue. Pub. v. 838 S.W.2d (Tex.1992). Ramirez, Dep’t Transp. Tex. v. 74 The owner must of (Tex.2002) of, reasonably or make (citing S.W.3d Texas warn the licensee gave jury charge Department Transportation The trial court B. Texas of Stephanie’s asked whether TxDOT’s or reasonably knew or should have known negligence proximate Veronica’s cause danger; and Along question of the occurrence. with the Department Transportation C. Texas of gave jury following the court instruc- protect ordinary care to failed to exercise tion: failing danger by motorists from the both respect to With the condition of FM warn motorists of the con- Department Transportation Texas failing to make that condition dition negligent if: reasonably safe. posed A.The an unreasonable harm; threat safe, charge, jury included within the dangerous conditions of which the tions impliedly gravel posed not. Id. found the an unrea- owner is aware and the licensee is below, As sonable risk of harm. discussed If, however, the condition is a was sufficient to raise a fact the evidence defect,” the same “special the state owes regarding the defective condition issue duty private that a landowner owes an which the resolved favor of the duty land “requires invitee. Id. That appellees. Accordingly, we overrule this ordinary owner to use care to reduce or issue. eliminate an unreasonable risk of harm Special B. Defect premises created a condition of the reasonably which the owner is or should be We next review the nature of Id.; Roberts, City aware.” v. Grapevine the defect. Whether condition consti (Tex.1997). 946 S.W.2d 842-43 See an tuted a defect or also Tex. Civ. PRAC. & Rem.Code Ann. premises defect determines 101.022(b). theory, § Under either Special to the TxDOT owed Gutierrezes. plaintiff prove must the condition created of the same defects are road conditions Payne, an unreasonable risk of harm. or obstruc type and class as excavations at 237. physically “unexpectedly tions that appeal, contends it did not On impair ability a car’s to travel on the (1) immunity plain- waive its because: Rodriguez, road.” State tiffs failed to that the establish (Tex.1999). However, “conditions posed FM 624 unreasonable risk may threatening normal uses of road be *6 (2) harm; defect, regardless type of of the though they do not special defects even any discharged TxDOT owed to the Payne, occur on the surface of a road.” them plaintiffs protect danger to from They pres- 838 at 238 n. 3. must S.W.2d (3) warning gravel; danger unusual “unexpected ent an plaintiffs’ argument that different or addi- at ordinary roadways.” users of Id. signs tional should have been used inter- Special at 238. defects are distin- S.W.2d discretionary feres with TxDOT’s deci- guished by quality some unusual outside (4) sions; failure to warn on course of events. Stokes v. part proximate TxDOT’s was not the cause Antonio, 324, 326- City San 945 S.W.2d Stephanie’s injuries. writ). 1997, no (Tex.App.-San Antonio a condition is a defect is Whether Condition/Special Defect DANGEROUS court. Rodri- question a of law for the A. Defective Condition 85; Payne, 838 guez, 985 S.W.2d at at 238. argues the Gutierrezes appellate Texas At least three other identify failed to actionable condition have determined that excessive property real under section 101.022 of the courts a special on the road constituted gravel gravel because the on FM 624 was TTCA Transp. Dep’t v. posing a condition an unrea defect. Texas not defective (Tex.App.-Corpus O’Malley, 28 S.W.3d 652 sonable risk of harm.2 Tex. Civ. PRAC. & 101.022(b). denied), However, 2000, was con- pet. § Christi Ann. Rem.Code. similar to that ducting instrue- road maintenance jury findings based on the and the posed of harm. negligent, tion an unreasonable risk 2. In order to find TxDOT required finding that the condi- instruction con- should be dangerous During trial there was of present case. determine whether testimony sidered in order to conflicting regarding whether special defect. af- gravel remained on the road condition constitutes excessive Eaton, Corpus County The v. 573 S.W.2d placed. seal coat was Harris ter the case, (Tex.1978). sev- upheld judg- present the trial court’s In the Christi court consti- finding gravel gravel ment the excessive testified eral witnesses stating, “Like an tuted a defect “excessive.” Testimo- along the curve was obstruction, drivers, cov- including excavation that four ny established an excessive amount of loose ered with Maldonado, vehicles control of their lost motorists can rea- gravel something is not Ashley Bray, on the curve. driving while at sonably expected anticipate.” be Id. 4 p.m. approximately 624 at driving on FM 4, 2003, that she testified December sixty-five per miles hour slowed to about Wollesen, v. 93 S.W.3d case State the curve when she lost as she rounded (Tex.App.-Austin pet.), no also Bray to hav- control of her car. admitted repairs pres involved road similar to the forty-five per mile hour advi- ing seen the compared case. The Austin court ent sign. Em- sory sign and the Loose Gravel gravel unexpect amount of to an excessive Gonzalez, on at driving on FM 624 ily navigate, ed obstruction that is difficult to day, the same p.m. 9:00 approximately properly the trial court found the and held sixty driving at about stated that she was gravel defect. Id. at hour when she lost Likewise, sixty-five miles Dep’t of Transp. 913.3 Tex. into the York, 10-06-00210-CV, control of her car as she went No. very the road as not curve. She described (Tex.App.-Waco 2007 WL 2280391 h.), well-lit, lights no court with few and testified Aug.8, pet. the Waco sign. during held loose left on a road she did not see the Loose Gravel however, repairs did, testify that even if constituted a defect based Gonzalez in part on the volume and looseness of the she not have sign, she had seen the would and the number of accidents amount of that was on expected the *7 Montgomery County site. The case of Bray and Gonzalez both be- the road. Reed, CV, Precinct No. 09-06-402 they control of their car because lieved lost (Tex.App.-Beaumont WL 3823897 gravel. of the excessive Dec.28, 2006, pet.) (mem.op.), no is distin officer, Trooper DPS investigating The guishable present from the case because Almarez, that, opin- in his Alonzo testified appellees present any the failed to evi ion, losing control of their four drivers grav regarding dence the amount of loose vehicles, much of spot, in was too the same el, any gravel, or quality unusual of the Therefore, on the afternoon a coincidence. gravel unexpected that was on a 5th, requested he TxDOT of December appellate limestone base rural road. The Alma- gravel. sweep the curve of excess court, therefore, appellees failed to held gravel the amount of loose rez considered gravel special the constituted a establish an obstruction to safe on the road defect. Id. at *3. slipped stated that he normal travel and of his gravel upon getting out

Although of a the loose the existence acci- law, opinion, the four own vehicle. his question defect is a size special noted, however, ón appeal. Id. at 913-94. the State did not 3. The court challenge defect characterization caused, road, dents were at least in in part, to seal cracks a special was (con- defect); gravel excessive on the curve. O’Malley, Noel Ybar- 28 S.W.3d at 656 ra, cluding yard the TxDOT that gravel maintenance su- half cubic of loose pervisor, agreed roadway, on stretch of 200 feet in gravel length the amount of curve, on the road of a Additionally, consisting was excessive. was a defect).4 although chief, the TxDOT crew Jose Gar- cia, agree did not that grav- the amount of Here, quantified while no witness excessive, el on the agree curve was he did depth word “excessive” relation to the gravel if excessive present is on a gravel road, or amount of loose on the road, it unreasonably dangerous creates an several witnesses testified that there was condition for traveling public. gravel along “excessive” the curve where the accident Additionally, occurred. these Milburn, expert, Jeffrey

TxDOT’s testi- witnesses, Almarez, including the investi- typically fied that five to ten percent of the officer, gating attributed the excessive lost, gravel laid down is or would become accidents, gravel to four other at the same unstuck from the seal coat. He defined location, involving losing drivers control of “excessive” as situation in which the We, therefore, their cars. conclude that loss percent. exceeded five to ten gravel quali- the excessive in this instance quantified record reveals no witness fies aas defect. word “excessive” and there conflicting is regarding evidence the size of the area Warning Adequacy gravel. covered with the loose Almarez gravel Because the loose testified gravel the excessive covered an defect, Stephanie higher TxDOT owed area of about 200 to yards the area invitees, a duty standard care due to of the curve. Ybarra insisted the area highway reasonably either make the safe feet, covered explained and he adequately warn of the hazard. yards Almarez’s estimate of 200 to 250 Payne, 838 S.W.2d at 237. The about the same as 600 to 800 feet. No impliedly instructed found that depth witness testified as to the or amount TxDOT “failed to exercise care to or otherwise clarified their protect danger by motorists from both description being as “exces- failing warn motorists of the alleges layer sive.” While TxDOT that the failing to make that condi- was “no more than one-half inch reasonably tion safe.” thick,” provides no record refer- ence to support its statement and the rec- it appeal, argues On was not *8 appears any ord to be of devoid evidence required roadway reasonably to make the regarding the of gravel. thickness the safe it warned of the because See, Wollesen, e.g., 93 at S.W.3d 913-14 the ad- condition. Based on Gutierrezes’ (concluding gravel, that posted one to two mission that a Loose Grav- TxDOT hot, spread top liquid asphalt sign inches on of a sign el and a Curve Ahead with also, e.g., County, 4. depth length drop-off See Harris 573 S.W.2d at and that on and of hole, (concluding oval-shaped re-entering drop-off prevented 178-80 that an from tires McBride, 552, deep, extending ninety roadway); six to ten inches across v. State percent roadway, (Tex.Civ.App.-Waco which caused car travel writ ref'd 558 over, slick, n.r.e.) ing thirty-five per flip muddy at (holding miles hour to that a excavation State, defect); special highway traveling awas Morse v. 905 of the so severe a car at (Tex.App.-Beaumont thirty-five S.W.2d 475 hour went less than miles out denied) (substantial defect). presented special writ evidence of control was a

135 Rodriguez, forty-five speed advisory, The case of State mile-per-hour (Tex.1999), dispositive is of the duty S.W.2d 83 TxDOT its to warn was dis- asserts Rodriguez, In the decedent was issue. charged disagree. a matter of law. We as rig tractor-trailer hit a killed when his Discretionary A. Act a along the side of detour bridge abutment Corpus in Christi. Id. Highway U.S. Although impliedly the found traffic a directed onto at 85. detour warn, inadequate the to signage excavation large avoid a frontage road to any question about ade argues that the following the de- After on U.S. Id. quacy warning signs the irrelevant mile, the dece- approximately tour for one because section 101.056 Texas Prac ninety-degree a complete dent failed to immunity tice and creates Remedies Code detour, the driving turn in the onto detour discretionary its regarding decisions bridge side-swiping the abut- shoulder type warning sign the as well as when ment, to roll-over. causing rig his Id. warning signs. and how place to Tex. Crv. The court the tension between addressed (Vernon § PRAC. & 101.056 Ann. Rem.Code immunity discretionary powers set 2005).5 dispute no There is the record duty forth in 101.056 and the to section with signs complied the Texas special warn of defects described sec- Manual Traffic on Uniform Control De 101.022(b). 101.060(c) tions Tex. Civ. (“MUTCD”) vices and were of proper 101.022(b), §§ Prac. & Ann. Rem.Code size, color, alignment. Ybar- Although 101.060(c). 101.056, and The court held: agreed ra the amount of on the road 101.060 the State re- [U]nder section excessive, was that the argued he MUTCD immunity warning sign its tained not him require place did to additional placement it also was discre- because signage. sign Because the Loose Gravel tionary act because the detour was yards road up about 500 from the not a defect. sign, Curve Ahead it concludes discharged warn, turn, duty its to which in However, sign placement de- even if discharged duty its to exercise reasonable discretionary, the State cisions were protect care to any licensee or invitee from immunity still the detour’s waives if danger. response, the Gutierrezes as alleged Un- were defects. defects argument ignores sert that TxDOT’s this this detour is neither an der record duty defects required warn obstruction,” “excavation nor simi- under section 101.060. Tex. Civ. PRAC. & “unexpected presenting lar § 101.060. Section 101.060 Rem.Code Ann. danger users of unusual specifically provides immunity is not is not a roadway,” spe- and as such from arising waived for a claim failure cial defect a matter of law. as governmental place sign of a unit to road (citations omitted, sign emphasis add or the condition of a road but it Id. ed). County “to v. Estate Cic specifically apply does not See Harris cia, (Tex.App.-Hous- warn of defects.” Id. *9 apply performance nonperformance of an act if chapter 5. “This not claim or does to a (1) governmental of a performance nonper- based on: the failure or the law leaves perform unit to an act that the unit is not the discretion of the formance of the act to (2) required perform; govern- by law to or a governmental Prac. & unit.” Tex Civ. Rem. perform act mental unit’s decision not to an §Ann. Code 101.056. or on to make a on the its failure decision denied) (Even ton pet. [1st Dist.] specific road hazard. Milburn also con- though design initially road discretion- ability post ceded TxDOT has the to an ary, failure to warn of unlit culvert advisory limit speed sign for out-of-the- defect county’s immunity waived under ordinary road conditions. 101.060(b)). Causation Adequacy Warning

B. TxDOT claims the Gutierrezes fact that the excessive The inadequate failed to establish an warning defect created a proximate Stephanie’s was the cause of TxDOT to warn the Gutier- injuries because she knew about the defect rezes of the hazardous condition of the injured. at the time she Stephanie’s was road. supported The evidence at trial a knowledge of the road condition is relevant adequate lack of warning despite the only if the defect in this premis case was a placement of sign. the Loose Gravel es defect rather than a defect. See Steitle, David the Gutierrezes’ expert, Brown, County Cameron v. opined that the sign, Curve Ahead which (Tex.2002) (in 557-58 premises de had been in place years, and the Loose case, fect prove licensee must she did not sign Gravel inadequate warnings. were condition). dangerous know of the Be purpose He said the of warning signs is to cause we hold that the condition awas give roadway information to drivers unac Stephanie’s defect knowledge is ir customed to the road and to warn of a relevant. specific condition. Steitle acknowledged argues, that the TxDOT also that even if sign, Curve Ahead speed with the Stephanie was unaware of the road advisory, condi adequate was because it told the tion, (a she became aware of the condition specific driver about the curve ahead) (slow when she encountered the told the driver what to do road, hour). car, voluntarily got out of her forty-five to miles He conclud ed, however, by inspect stood her car damage to that sign Loose Gravel gravel. According caused the loose was inadequate specify because it failed to TxDOT, Stephanie multiple “had opportu opinion, hazard. his allegedly nities to leave the hazard, and of defective itself is not a and drivers premises .... she [and] made informed simply interpret sign could warning as decision remain on the for a against damage to their vehicles and not as ” Thus, minute or two.... TxDOT con warning that a hazard existed that would cludes, any part failure to warn on its was cause them to lose control of their vehicle. proximate Stephanie’s not the cause of in sign Steitle also considered the inadequate juries. jury The heard the evidence and sign only because the posted for one impliedly negligence found that day night. and the accident occurred at proximately occur caused the Finally, Steitle testified that TxDOT rence. Because there was some evidence posted should lighted, changeable have support jury’s finding, we overrule message telling board drivers the condition this issue. advising of the road and of the action to Ybarra, hand, take. on the disagreed other BYSTANDER CLAIM warning signs different were neces

sary, but conceded that TxDOT could have The found Ronnie did not suf- posted court, an advisory warning sign bystander injury. inform fer a trial ing however, drivers to slow granted down because of a his motion for new trial

137 consequence his son’s of bystander appeal, the issue. On entitled as on Therefore, court argues juris- wrongful trial court lacks Id. the the death. claim the “person injured” diction over Ronnie’s because for concluded he Legislature given to Id.; Texas has not consent damages cap. see purposes of the bystander entity. suits a state As against at 479- Hosp., 990 S.W.2d also Hermann support argument, this its sole for line of that a with this cases agree 80. We to the does ex- points TTCA which not bystander “person can be considered a these of immunity types waive for pressly thus of TTCA injured” purposes for impression This is an issue of first claims. sovereign resulting of TxDOT’s in a waiver court, Texas Supreme for our and the immunity.6 has not the issue. Court addressed

Although does the TTCA not ex Conclusion immunity bystander pressly waive for foregoing, Based on the we affirm claims, two have analyzed sister courts ruling trial on to the plea court’s TxDOT’s permits whether of TTCA cause claim, jurisdiction premises to the as as bystander injuries. for action See Her as, bystander well claims. Ronnie’s Martinez, Hosp. v. mann 990 S.W.2d 476 1999, (Tex.App.-Houston pet. [14th Dist.] by SANDEE Dissenting opinion denied); Davis, City Austin v. 693 of MARION, BRYAN Justice. 31, 1985, (Tex.App.-Austin S.W.2d 34 writ n.r.e.). ref'd Hospital, Hermann I I do respectfully must dissent because mother and her children injured two were not on the road in this believe the in an automobile accident. Hermann Hos a special case rises to the level of defect. pital, City 990 S.W.2d at argued 478. The A must be of defect a condition that the trial in permitting court erred the same or class as an excavation or kind recovery monetary damages of from the roadway present “an unex obstruction City bystander injuries grounds for on the danger pected and unusual that section 101.021 of the TTCA not does roadways.” High of Dep’t users State governmental immunity bystand waive (Tex. ways 235, v. Payne, 838 S.W.2d er claims. Id. The Houston court reject 1992); Dep’t Highways see also State v. City’s bystander argument holding ed Kitchen, (Tex.1993) 867 S.W.2d recovery was available under the TTCA. (icy bridge freezing during conditions of Austin, relied City The court where temperatures something can motorists in the father of the victim asserted a claim Harris anticipate); County should physical injuries for mental distress Eaton, (Tex.1978). v. 573 S.W.2d sustained, as a bystander discovering after Special unexpectedly physical defects body his son’s of an the base airshaft. Austin, ly ability to impair a car’s travel on City at 34. The See, State, e.g., road. Morse bystander court Austin held the father’s (TexApp.-Beaumont writ was not of the statutory suit derivative denied) (holding drop-off ten-inch wrongful wrong death action of the other left along prevented ful His shoulder that car’s death beneficiaries. Id. suit was injuries reentering once personally he suffered not wheels from defect). damages they he would had off was a slipped which have been claim, only bystander not 6. We note issue before us is hear Ronnie’s we do jurisdiction address merits of such a claim. whether trial court has *11 Typically, conditions on or signs place, around road in these the condition was not ways that courts have special “unexpected.” Therefore, found to be I would hold defects possess unexpected establish, and unusual the record does not as a dangers ordinary law, toward users of the road matter that the amount of ways, and the conditions are substantial in the road special constituted a defect. Be- Harris, County size. See 573 S.W.2d at cause I do not believe a defect 178-79 (concluding that an oval-shaped case, exists this TxDOT is immune from hole six to deep ten inches extending suit on the issue of whether it failed to ninety across percent of roadway, which have, warn because it should caused car traveling thirty-five not, at miles but did place signs different at the defect). over, hour to flip scene. See Tex. Crv. PRác. &Rem.Code Ann. Thus, (Vernon dangerous 101.56; 2005). §§ the size of the 101.060 should be considered in determining reasons, For these I would reverse the whether the condition constitutes a trial judgment court’s and render a dis- Harris, defect. County 573 S.W.2d at missal favor of TxDOT. 179; Reed, see Montgomery County v. 09-06-402-CV, No. 2006 WL at

*3 (Tex.App.-Beaumont Dec.28, 2006, no (court

pet.) plaintiffs held did not establish gravel, without evidence of an amount,

excessive unexpected on a road).

limestone-based rural Here, it is true that several witnesses POCHUCHA, Sam Jean described the amount of as “exces- Appellants, Trooper sive.” Almanza also said he slipped on gravel exiting his vehicle thought and he losing four drivers control GALBRAITH ENGINEERING on the spot same too much of a coinci- CONSULTANTS, INC., However, drivers, dence. two of these Appellee. admission,

their own driving were well in No. 04-07-00119-CV. excess of the speed they limit as rounded the curve. Although there was some evi- Texas, Court of Appeals of dence about the size of the area covered San Antonio. gravel, with no evidence was admitted as Sept. 2007. depth amount of on the curve. quantified No witness “excessive.” Rehearing Overruled Nov.

Further, defect, to constitute a

the condition unexpectedly impair must roadway. user of the Al- trial,

though disputed during parties

stipulated after close of evidence to the sign

existence a Loose Gravel

scene. The sign Loose Gravel as well as

the Curve Ahead with speed advisory sign requirements

met the of the Texas Manual

on Uniform Traffic Control Devices. With