More Special Defects Jurismalprudence: TxDOT v. York (Tex 2009)

JURY'S DAMAGES AWARD TO ACCIDENT VICTIM'S SURVIVING SPOUSE UNDER TEXAS TORT CLAIMS ACT THROWN OUT & CASE DISMISSED

Texas Department of Transportation v. York, (Tex. 2009)(substituted opinion on rehearing dismissing case rather than remanding it for trial under alternative theory)
No. 07-0743 (Tex. May 22, 2009)(per curiam)(loose gravel does not qualify as special defect to bring it within the scope of immunity waiver provided by the Texas Tort Claims Act (TTCA) under the more lenient standard to establish liability for negligence)

TEXAS SUPREME COURT DEFENDS JUDGE-MADE SOVEREIGN IMMUNITY DOCTRINE AGAINST ENCROACHMENT BY LEGIS AND JURIES - ADDS NEW CHAPTERS TO ITS POTHOLE, GRAVEL & SPECIAL DEFECTS JURISPRUDENCE

To the apparent chagrin of the Texas Supreme Court, the Legislature has carved out a number of exceptions to the cherished sovereign immunity doctrine, wielded by the Supremes of Texas with abandon and to great effect to bump countless tort and contract claims against governmental defendants from the court dockets throughout the state regardless of merits and consideration of equity.

One such legislative grant of protection to the public, and a remedy for victims of governmental negligence, is the Texas Tort Claims Act (TTCA).

So what is the Court to do to when juries render verdicts for accident victims (or their survivors) under the Act?

The answer is to tinker with statutory definitions, such as "special defects" on public highways, which may be made the basis of suit for damages by victims of resulting wrecks.

In Tex. Dept. of Transportation v. York, a driver was killed after hitting a patch of loose gravel (left after road maintenance work) and skidding into an oncoming truck. The horrendous consequences were not enough to convince the Court that a "special defect" was in fact present. After all, its was just gravel spread on the road less than an inch deep.

You see....in order to state a viable claim under the Texas Tort Claims Act, the plaintiff does not just have to skid and crash, or even die, as a result of the defective condition of the road. What the Plaintiff needed to show, and the Court went looking for, was a "mound" of gravel, not just a thin spread left over after repaving work had not been properly completed.

No piles of gravel were in evidence in this case. Nor was there a pothole big enough to swallow up the hapless driver's vehicle, which instead ended up in the path of an oncoming truck. So, of course, the jury verdict for the crash victim's spouse must be thrown out.

In the earlier opinion, the case was remanded to the trial court for retrial on a different theory, but that was too much of a concession, so the Court foreclosed the possibility of another liability finding (and damages) in a second trial by outright dismissal on rehearing.

As Justice Hecht explained with great eloquence in a recent dissent: Nothing special with ordinary potholes. To his satisfaction, now the whole court chimes in in finding nothing special about loose gravel.

And that's a matter of law on which the court - not the jury - has the final say. Indeed, the only say.

Sorry. Sure. It's tragic.

But we can't create precedent for government defendants actually having to pay damages for negligence (never mind the statutory cap). The Texas Legislature could not possibly have meant to include a case like this when it authorized suits for personal injury damages caused by special defects on public highways. - Not when the jury finds the government agency at fault and and awards a million dollars to the family of the motorist who perished in the crash.

And if the Legis did, in a lamentable deparature from social Darwinism and the cost-savings it bestows, at least there is this Court, which will spare no effort to protect and defended the state's sovereign immunity - and the public fisc.

TxDoT v. York, No. 07-0743 (Tex. May 22, 2009)(per curiam) (substituted opinion on motion for rehearing dismissing case on immunity grounds) (Texas Tort Claims Act, TTCA, road hazard, no liability)

The Supreme Court holds that loose gravel is not a special defect as a matter of law, and therefore, reverses the court of appeals’ judgment and dismisses the case.

TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from Robertson County; 10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07) motion for rehearing granted. The Court's opinion and judgment of December 5, 2008 are withdrawn and the opinion and judgment of this date are substituted. Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and dismisses the case. Per Curiam Opinion.
Justice O'Neill notes her dissent to granting the motion for rehearing [without separate opinion] (link to original superseded opinion)

MORE LOOSE GRAVEL IMMUNITY: THE COMPANION CASE

TxDoT v. Gutierrez, (Tex. 2009)
No. 07-1013 (Tex. May 22, 2009)(per curiam) (gravel left on road not special defect under the TTCA, case dismissed as barred by sovereign immunity)

FROM THE OPINION:

The Tort Claims Act does not define “special defect” but likens it to “excavations or obstructions.” Id. Thus, in York we stress that “the central inquiry is whether the condition is of the same kind or falls within the same class as an excavation or obstruction.” __ S.W.3d at __. As we hold today in York, loose gravel, unlike other conditions we have said are special defects, “does not form a hole in the road or physically block the road like an obstruction or excavation,” id. at __, nor does it “physically impair a car’s ability to travel on the road in the manner that an excavated road or obstruction blocking the road does,” id. at __ (internal quotation and citation omitted). It thus falls outside the special-defect class as a matter of law. Instead it “falls in the same class as ordinary premise defects—those conditions that do not reach the level of an obstruction or excavation.” Id. This case presents the same condition (loose gravel) due to the same re-paving procedure (a spot seal), and we reach the same result: loose gravel is a premise defect, not a special defect.

TEXAS DEPARTMENT OF TRANSPORTATION v. STEPHANIE GUTIERREZ AND RONNIE GUTIERREZ; from Jim Wells County; 4th district 04-06-00583-CV, 243 SW3d 127, 09-05-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and dismisses the case. Per Curiam Opinion

Also see: Other Texas Texas Supreme Court Tort Claims Act Decisions Previous post: Accident victims' dangerous road to the Texas Supreme Court
Other commentary: Loose gravel caused by repaving is not a "special defect" creating state liability for an automobile accident (Order List for May 22, 2009) (Don Cruse Blog)

TERMS: SOVEREIGN GOVERNMENTAL IMMUNITY, WAIVER OF IMMUNITY TO SUIT AND LIABILTIY, GOVERNMENT TORT LIABILTIY, PREMISES LIABILITY, HAZARDOUS ROAD CONDITIONS, ACCIDENTS, SPECIAL DEFECT, NEGLIGENCE, ACTUAL KNOWLEDGE ELEMENT