Last week, in the case of Texas Department of Transportation v. York, ___ S.W.3d ___ (Tex. 2009) (5/22/09), the Supreme Court reversed a verdict in favor of the family members of a woman who was killed when her car went out of control after it hit loose gravel a day after TxDOT applied a “spot seal coat” to repair a highway; her car crossed the centerline and hit an oncoming vehicle. The Supreme Court reversed a verdict of $1,033,440 and held that there was “no jurisdiction” over TxDOT by stating that “loose gravel is not a special defect as a matter of law. . . .”
Unless waived by statute, the government is immune from suit. In the statute which waives immunity, there are different “duties of care” depending upon if “the condition was a premises defect or a special defect. . . . If a claim involves a premise defect . . . , a licensee standard applies. Under a licensee standard, a plaintiff must prove that the governmental unit had actual knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same condition. But if a claim involves a special defect . . . , a more lenient invitee standard applies. Under an invitee standard, a plaintiff need only prove that the governmental unit should have known of a condition that created an unreasonable risk of harm.”
The statute likens special defects to “excavations or obstructions.” These are not exclusive or exhaustive examples. Nevertheless, the Court ruled that a “special defect, then, cannot be a condition that falls outside of this class.” Characteristics of the class include “the size of the dangerous condition,” “some unusual quality outside the ordinary course of events,” and “something that ‘unexpectedly and physically impair[s] a car’s ability to travel on the road.’ A layer of loose gravel on a road does not share the characteristics . . . and, thus, does not fit within the same class as an obstruction or excavation . . . [since it does not] form a hole in the road or physically block the road. . . .” (Gravel could be a special defect if it were “a sizeable mound.”) Specifically, the Court held that a layer of loose gravel on the highway is not an “unexpected and unusual danger.”
Since the trial court gave a charge to the jury than included “an invitee standard of care,” to which TxDOT objected, “York cannot recover under an ordinary premises defect claim.” The plaintiff did not obtain findings that “TxDOT had actual knowledge of the loose gravel and that York lacked actual knowledge of the loose gravel.” So, the jury’s verdict was reversed, and the plaintiffs’ case was permanently thrown out of court.
No named justice wrote this opinion; instead, it was issued “per curium.”
The same day, the Supreme Court also threw out of court a case entitled Texas Department of Transportation v. Gutierrez, ___ S.W.3d ___ (Tex. 2009) (5/22/09), in which a jury had awarded a severely injured plaintiff damages, by holding once more that “loose gravel is not a special defect as a matter of law.”