In a recent case, the Texas Supreme Court ruled against a bicyclist who steered around a street barricade and struck a chain across a dark street. The university had not placed customary cones and reflective tape near the barricade and chain. In the case of The University of Texas at Austin v. Hayes, ___ S.W.3d ___ (Tex. 2010)(12/3/10), the Supreme Court ruled that the chain did not constitute a “special defect,” and that the cyclist did not prove that the university had actual knowledge of a dangerous condition, which is a necessary element for a premises defect theory.
“Whether a condition is a special defect is a question of law.” “The Legislature does not define special defect but likens it to conditions ‘such as excavations or obstructions on highways, roads, or streets.'” “[C]onditions can be special defects “‘only if they pose a threat to the ordinary users of a particular roadway.'” “[W]e have previously considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle’s ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway.” This is a “narrow” class. A hole covering 90% of the road is one, but not a “two-inch drop.” “Our special-defect jurisprudence turns on the objective expectations of an ‘ordinary user’ who follows the ‘normal course of travel.'” So, a floodgate arm three feet off the road was not a special defect because “an ‘ordinary user’ would not have left the roadway. . . .” Likewise, here, the cyclist “did not take the normal course of travel.” He should have turned back, and an ordinary user “would not have traveled beyond the barricade.” Accordingly, this is not a “special defect.”
The Court further said that the cyclist failed to prove a premises defect case. “To establish a waiver of immunity for a premises-defect claim, the plaintiff must show that the landowner failed to either (1) use ordinary care to warn a licensee of a condition that presented an unreasonable risk of harm of which the landowner is actually aware and the licensee is not, or (2) make the condition reasonably safe.” “To prove the actual-knowledge element, the licensee must show that the owner actually knew of a ‘dangerous condition at the time of the accident.'” Though the university knew of the chain, it also “had placed a large barricade in front of the chain.” Somehow, that “negates arguments that the University had actual knowledge of a dangerous condition. . . .”
Evidence that a parking representative imagined bicyclists would go around the chain and that it would be possible to hit it did not prove actual knowledge. “[A]ctual knowledge requires the landowner to know ‘that the dangerous condition existed at the time of the accident, not merely of the possibility that a dangerous condition c[ould] develop over time.'” Also, evidence that the university typically put reflectors and cones near the barricade and chain was insufficient: proof that the school “could have done more to warn him is not direct evidence to show that the University had actual knowledge of a dangerous condition.” Moreover, the investigating police officer’s report – written after the incident – that poor lighting made it difficult to see the chain “is not evidence of what the University knew at the time of the accident.”