Saturday, March 28, 2009

Gravel & Pothole Jurisprudence

Nathan Hecht on the ubiquity of the phenomenon:

Potholes pock the surface of the civilized world. If potholes — all but yawning chasms capable of suddenly swallowing up an entire vehicle — posed an unreasonable risk of harm to anyone, let alone experienced and reasonably careful drivers, whole swaths of civilization would have to be closed off to human traffic.

Manhattan would be the first to shut down, but no city, town, or village would escape. Across the planet, ground transportation would be brought to a halt. Commerce would cease.

The end could not be averted by posting adequate warnings. Signs at city limits — Warning! Potholes! — would hardly be adequate. Each pothole would require its own warning sign. Even if available resources could supply enough signs, warnings that unreasonable danger is everywhere provide no warning that it is anywhere in particular.

Potholes do pose a risk of harm, no question. But the risk is simply not an unreasonable one unless the pothole is one of those rare, menacing kinds that lure unsuspecting travelers into danger. The potholes that permeated the dirt road to the Dolen sand pit were all of the ordinary variety.

Source: Dissent by Justice Hecht inTXI Operations, LP v. Perry, No. 05-0030 (Tex. Feb. 27, 2009)(Majority Opinion by Green)(premises liability, duty of warn of danger, private road defect, speed limit warning sign)

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