Once again, the Texas Supreme Court has ruled in favor of the Department of Transportation, and against the family of a deceased motorist, in the case of a dangerous highway. The decision was issued in Texas Department of Transportation v. Perches, ___ S.W.3d ___ (Tex. 2012).
In this suit, Jose Perches was killed at the so-called “Bicentennial Underpass” in McAllen, Texas. This is a hazardous T-intersection at the end of a ramp that is used to exit the westbound lane of a state highway and turn south on Bicentennial Boulevard. Multiple other wrecks have occurred at that location at night. Mr. Perches hit a barrier at the intersection while turning left, and his car plummeted twenty feet to the roadway below, killing him.
A critical legal issue is the standard needed to hold the state liable. If the road hazard is labeled a “special defect,” which is likened to an excavation or obstruction on a roadway, then the state is held to the standard of a person of ordinary care (the violation of which is called “negligence”). On the other hand, if the hazard is not a special defect but instead an “ordinary premises defect,” then the state is only held to the standard that a landowner owes to a licensee, which is not to injure users of the roadway by willful or grossly negligent conduct, or if the state actually knows about the hazard, to warn about it or make it safe. This is a much more difficult burden to meet for the family of a motorist who was killed.
The Supreme Court ruled that guardrails placed according to plan cannot be a special defect, no matter how defective or dangerous the plan may be. The Supreme Court further ruled that, here, there were not sufficient facts alleged to show that the hazard was an ordinary premises defect for which the state could be liable.
The bottom line is that the highway department has once again been immunized from any responsibility to the public for the unsafe design of highways or hazardous placement of barricades.