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

Strangling the TTCA: Dallas County v. Posey (Tex. 2009)

SUPREME COURT SNUFFS OUT PARENTS' CIVIL SUIT OVER SON'S HANGING DEATH IN JAIL

Dallas County v. Posey, (Tex. 2009)
No. 08-0094 (Tex. May 22, 2009) (per curiam) (TTCA, prisoner suicide with cord of jail cell phone)

Should suicidal prisoners have a phone with a cord in their cell, with which they can kill themselves? Probably not a good idea. Dallas County concluded as much and started removing them and replacing them with cordless phones.

No rush warranted to make jail cells safe in addition to secure, though, at least not in terms of risk managment and potential legal liability.

In one of its most recent decisions in a series of Tort Claims Act rulings sapping life from the sovereign immunity waiver found in the TTCA, the Supremes absolve county of any responsibility for prisoner's death-by-hanging in a holding cell, - as usual on immunity grounds.

Tragic, no doubt, the Court concedes.

Case dismissed!

Survivors of accident victims suing under the Tort Claims Act suffer similar fate: Loose gravel on road not a special defect that would permit them to sue.

Jury verdict reversed. Case dismissed!

Also see: JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David Medina) (product liability, breach of implied warranty, prisoner strangled with cord of phone represented as safe for unsupervised use by inmates)

See other Texas Supreme Court Tort Claims Act Appeals (with predictable outcomes in finding that immunity bars suit contrary to the legislative purpose of the Tort Claims Act)

Prior post: Accident victims' perilous road to the Texas Supreme Court.

Accident victims' hazardous road to the Texas Supreme Court

Another premises liability (road hazard) case with predictable outcome; even more predictable since a governmental entity would have had to pay for injuries. That's a no-no for the Supremos. Since the Legislature waived sovereign immunity by enacting the Texas Tort Claims Act, the legislation must be construed to prevent an outcome that could actually make government liable for personal injury damages caused to innocent citizens. To their credit, three dissented, including the Chief.

Denton County v. Beynon,
No. 08-0016 (Tex. May 1, 2009) (Majority opinion by Willett) (Texas Tort Claims Act TTCA governmental immunity waiver, flood gate pole that pointed toward oncoming traffic and impaled car in accident did not qualify as special defect to bring personal injury claim within TTCA's waiver of immunity in crash victim's suit against county)

FROM JUSTICE O'NEILL'S DISSENT:

It is hard to imagine anything more dangerous than a seventeen-foot metal pole pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to disagree. It concludes, however, that ordinary users of the roadway are not expected to veer off the asphalt pavement, so anything they might encounter if they do cannot be a special defect.

I would agree with the Court if the particular hazard were farther from the road than the metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close proximity to the road’s edge posed a threat that normal users of the road would not expect. Because the Court concludes otherwise, I respectfully dissent.

Rhiannon Beynon was a passenger in the backseat of a vehicle driven by Mark Hilz. While driving on Old Alton Road in Denton County, Hilz observed an oncoming vehicle with its brights on driving down the center of the road. To avoid the oncoming car, Hilz steered his vehicle toward the edge of the road. As Hilz moved his car over, the right tires left the pavement and dropped about eight inches onto the unpaved, unimproved shoulder. Hilz quickly turned his wheels to the left and returned to the road briefly. But in his attempt to correct the path of the car, he lost control. Hilz turned the car left and then tried to correct by turning to the right. When he turned back to the right, the front wheels left the road and the car’s undercarriage caught the edge of the pavement. The vehicle began to slide along the road at a forty-five degree angle with its rear wheels still on the pavement. While the car slid along the pavement, a floodgate arm punctured the driver’s door.

In its proper position the floodgate arm, a seventeen-foot metal pole attached to a base buried in the ground, would have been facing away from traffic and secured in place. However, the arm was unsecured and improperly pointing toward oncoming traffic when Hilz’s car collided with it three feet from the pavement.

The arm penetrated the driver’s door, pierced Rhiannon’s leg, and exited through the floorboard. The car stopped its slide at the base of the floodgate. Hilz did not see the floodgate arm or realize that the car had collided with it until he heard Rhiannon’s screams. Rhiannon’s injuries resulted in amputation of her leg below the knee.

The Court does not dispute that the floodgate arm was in the wrong position, that the floodgate arm impaled the vehicle[1], or that its open position was unexpected and dangerous. The Court concludes, however, that because Hilz veered three feet from the asphalt, he was no longer an ordinary user of the road and Denton County’s plea to the jurisdiction should have been granted.

I disagree.

Special defects are “defects of the same kind or class as ‘excavations or obstructions on highways, roads, or streets’ that present an ‘unexpected and unusual danger to ordinary users of roadways.’” City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (citation omitted). To be a special defect, the condition must also “unexpectedly and physically impair a car’s ability to travel on the road.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).

A special defect need not occur on the surface of a road, but “[w]hether on a road or near one, . . . conditions can be [special defects] only if they pose a threat to the ordinary users of a particular roadway.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992).The Court concludes the floodgate arm is not a special defect because it was not blocking the road and the objective expectations of an “ordinary user” would not include veering off the road and onto the grass. But “ordinary users” of roads sometimes stray outside the lines, else there would be no need for shoulders.

In my view, vehicle operators do not cease to be ordinary users every time they veer onto a shoulder. As the court of appeals observed, normal users of the road nearly always drive on the paved surface, yet “it is certainly not inconceivable that a normal user of the road might pull off or leave the edge of the road onto the unimproved shoulder for one reason or another, either intentionally or accidentally.” 242 S.W.3d at 174. In the ordinary course of driving, hazards like road debris, livestock, or other drivers who don’t respect their lanes are often encountered that require prudent drivers to take advantage of the shoulder, whether improved or unimproved.

The Court’s conclusion that a driver was no longer an ordinary user because two of his tires left the roadway as the result of his efforts to escape a head-on collision is inconsistent with what objectively reasonable drivers do every day.The Court recognizes that the test for determining the expectations of an ordinary user is an objective one. Yet it fails to conduct an objective analysis, citing only Hilz’s statement that “the ‘normal course of travel for [Old Alton Road] would be the asphalt pavement.’” Hilz’s testimony merely states the obvious: users of the road normally drive on the paved surface. That doesn’t mean veering three feet from the asphalt to avoid a collision, with two wheels still on the road, places a driver beyond the normal course of travel.

The Court’s concept of “ordinary user” limits special defects to those that appear only within the lines between the shoulders of the road, contrary to our acknowledgment in Payne that a number of courts have recognized that “conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road.” 838 S.W.2d at 238 n.3 (citations omitted); see, e.g., Harris County v. Ciccia ex rel. Ciccia, 125 S.W.3d 749, 754–55 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that a culvert yards beyond the road’s end where a “right-turn only” lane directed traffic is a special defect); see also Tex. Dep’t of Transp. v. Dorman, No. 05-97-00531-CV, 1999 WL 374167 at *2–4 (Tex. App.—Dallas June 10, 1999, pet. denied); Morse v. State, 905 S.W.2d 470, 474–76 (Tex. App.—Beaumont 1995, writ denied).Not all off-road objects a driver might encounter in the ordinary course of travel qualify as special defects; to the contrary, few do.

Obstructions like road signs, construction equipment in marked construction zones, and properly secured floodgate arms are not unexpected and do not pose an unusual danger to ordinary travelers. See City of Dallas v. Giraldo, 262 S.W.3d 864, 871 (Tex. App.—Dallas 2008, no pet.) (holding that a bulldozer parked eight to ten feet off the edge of the road is “not of the same kind or class as the excavations or obstructions the statute contemplates” and “did not pose a threat to the ordinary users of the roadway”); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (“[A] longstanding, routine, or permanent condition is not a special defect.”).

But an unsecured floodgate arm pointing directly at oncoming traffic a mere three feet from the road’s edge is out of the ordinary, unexpected, and extremely dangerous to ordinary users of the roadway.Under the particular circumstances presented in this case, I consider the floodgate arm a special defect and would affirm the court of appeals’ judgment. Because the Court does not, I respectfully dissent.

Harriet O’Neill
Justice
OPINION DELIVERED: May 1, 2009

[1] The Court summarily concludes that the floodgate arm “is not of the same kind or class as an excavation or obstruction . . . .” It is hard to envision a more significant obstruction than a seventeen-foot metal pole piercing a vehicle’s door and floorboard. Moreover, as we have noted, “The examples in the statute are not exclusive, and courts are to construe ‘special defects’ to include defects of the same kind or class as the ones expressly mentioned in the statute.” City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).

In my view, a metal pole that pierced a vehicle, preventing it from traveling farther down the road, is similar enough to an obstruction to fall within the statute’s ambit.

OTHER RECENT TTCA DECISIONS FROM THE TEXAS SUPREME COURT:

City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, plea to the jurisdiction)

UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (Texas Tort Claims Act, TTCA, premises liability, dangerous condition, ostrich defense, know-nothing defense)

City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous condition, children's drowning deaths, flooded roads)

2008-08-08 Petition for Review in TTCA Case Stemming from Collision with Emergency Vehicle Struck

SPARSE ACTIVITY AT THE TEXAS SUPREME COURT

Among the few orders issued August 8, 2008, the Court strikes Petition for Review in case brought under the Texas Tort Claims Act (TTCA) seeking damages for injuries sustained in collision with police car:

"The petition violates Texas Rules of Appellate Procedure 9.4(d) and (g) and is struck. Petitioner is ordered to redraw; the redrawn petition is due to be filed August 18, 2008."

08-0516 CHARLES BARNES v. CITY OF ARLINGTON;
from Tarrant County; 2nd district (02-07-00249-CV, ___ SW3d ___, 07-31-08) (officer found not reckless in operating emergency vehicle, jurisdictional dismissal)

FROM THE OPINION OF THE COURT OF APPEALS:

One exception to the waiver of governmental immunity contained in section 101.055(2) provides that the TTCA "does not apply to a claim arising . . . from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action." Tex. Civ. Prac. & Rem. Code Ann. ' 101.055(2) (Vernon 2005); Lipan ISD v. Bigler, 187 S.W.3d 747, 750 (Tex. App.- Fort Worth 2006, pet. denied); Smith, 126 S.W.3d at 545.

The laws regarding the operation of an emergency vehicle are located in the Texas Transportation Code. See Tex. Transp. Code Ann. '' 546.001-.006 (Vernon 1999 and Supp. 2007). Section 546.001 allows the operation of an emergency vehicle to proceed past a red light after slowing as necessary for safe operation when the operator is responding to an emergency call. Id. at ' 546.001(2). Section 546.005 provides that, although the driver of an emergency vehicle must drive "with appropriate regard for the safety of all persons," he is not relieved of "the consequences of reckless disregard for the safety of others." Id. at ' 546.005; see Smith, 126 S.W.3d at 545; see also Hale v. Pena, 991 S.W.2d 942, 948 (Tex. App.- Fort Worth 1999, no pet.). Interpreting the uncodified predecessor of section 546.005, the Texas Supreme Court held that this provision "imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct." City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998).

Thus, a governmental entity is liable for damages resulting from the emergency operation of an emergency vehicle only if the operator acted recklessly; that is, only if the operator "committed an act that the operator knew or should have known posed a high degree of risk of serious injury" but did not care about the result. Id. at 430.

Because under the TTCA, a governmental entity's immunity from suit is waived only to the extent the TTCA authorizes liability, a governmental entity is immune from suits resulting from the emergency operation of an emergency vehicle unless the operator acted recklessly. Tex. Civ. Prac. & Rem. Code Ann. ' 101.025; Smith, 126 S.W.3d at 545.
* * *
The evidence shows that Officer Warren was driving his police car in an emergency situation with the lights and sirens activated when he entered the intersection. At the intersection, Officer Warren slowed down and looked around. Then, seeing that traffic had stopped or yielded to him, he proceeded into the intersection without coming to a complete stop. Officer Warren did not see Robinson's truck until after he had entered the intersection; he then accelerated to try to clear the intersection and to avoid a collision with Robinson. Robinson, however, hit the rear passenger side of the police car driven by Officer Warren, and the police car hit Barnes's car.

Appellees did not present any evidence or plead any other facts, which when taken as true, raise a fact issue as to whether Officer Warren knew or should have known that entering the intersection posed a high degree of risk of serious injury, yet proceeded without caring about this high degree of risk. Therefore, we hold that appellant met its burden to establish as a matter of law that Officer Warren was not reckless and that appellant's immunity was not waived. We sustain appellant's sole issue.
* * *
Having sustained appellant's sole issue, we reverse the trial court's judgment denying appellant's plea to the jurisdiction and render judgment dismissing appellees' claims against appellant for lack of subject matter jurisdiction.

Blind Justice: Supremes see no evidence of hazard; give nod to officials' ostrich defense

REPUBLICAN JURISPRUDENCE | JUDICIAL TORT REFORM

Blessed be the Ignoramuses | Public Officials' Affidavits of Ignorance Prove Successful in Defending Personal Injury Suits

Following up on their recent decision holding a city harmless for drowning deaths due to flooded roads on the ground the the public works director could not have known of the adverse weather conditions because he was asleep (and thus could not close the roads even though he was supposed to) the Supremes here let a state university off the hook in a suit by a student who broke his knee when he tripped over a water hose on a campus sidewalk.

The eight wise men and one lady saw no evidence that the university had actual knowledge that the obstruction could create an unreasonable risk. The relevant university officials executed affidavits as proof of their ignorance. As for a university manual that advised that obstructions should not be created, the Court deems it irrelevant because it only applied indoors. Detecting no sign that the University actually knew that the water hose across the sidewalk could cause people to fall and be injured, the Supremes reverse both the court of appeals and the trial court, both of which had rejected the university's plea.

The lesson to public officials: Close your eyes, plug your ears, and hold your nose lest you become aware of dangers and assume the obligation and burden to do something to protect the public.

Ignorance is bliss. It will help you defeat the tort claims of those who slip, trip, or drown thanks to newly created Jefferson Court precedent.

UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability, dangerous condition, actual knowledge element) (defendant state university prevails with ostrich defense)
THE UNIVERSITY OF TEXAS-PAN AMERICAN v. TONY AGUILAR AND KAY MARIE AGUILAR; from Hidalgo
County; 13th district (13-06-00450-CV, ___ S.W.3d ___, 03-01-07)
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 renders judgment.

Opinion below:
UTPA v. Aguilar No. 13-06-00450-CV, ___ S.W.3d ___, (Tex.App.- Corpus Christi, March 1, 2007)
( Because there are questions of fact pertinent to the jurisdictional issue, we conclude the trial court did not err in denying UTPA's plea to the jurisdiction, motion to dismiss, and no-evidence motion for summary judgment. Accordingly, we affirm the order of the trial court. . . . Assuming, without deciding, that the duty UTPA owed to Tony was that owed to an invitee, our result would be the same because fact issues remain regarding whether stretching the water hose across the sidewalk posed an unreasonable risk of harm and whether UTPA had actual or constructive (in terms of an invitee) knowledge of the condition.")

Flood Damage Control: Supreme Court Lets City Off the Hook On Plea of Ignorance

EVOLVING REPUBLICAN JURISPRUDENCE: THE OSTRICH DEFENSE

Texas Supreme Court Approves Know-Nothing Defense In Parents' Suit Over Road Flooding that Killed their Kids

In another example of ruthless application of the (non) jurisprudential principle that defendants shall prevail in suits against governmental entities no matter what, the Supreme Court here grants a city immunity from suit over the drowning of several kids inside a car swept off the road in torrential rain.

The Court approvingly cites testimony that the official in charge of Public Works was sound asleep at the time, thus relieving the City of responsibility to close lowlying roads due to flooding. After all - the supreme reasoning goes - the official could not have known: He was asleep -Reason enough to let government off the hook!

Quote from a foodnote of the opinion:
"Although City officials were supposed to monitor flood-prone areas, there is no evidence that this procedure was implemented and followed on the night of the accident. Lynch, the City’s Public Works Director, testified that he was asleep on the night of the accident and was not aware of the heavy rain."
Unquote.

The message to local officials is clear: Be sure to avoid learning that citizens may be endangered, not to mention helpless children; stick your head in the sand - or into your pillow - as the case might be.

Don't answer that call at three o'clock in the morning. Better still - turn off the phone lest you receive an emergency call soliciting your help. --- Do that and everything will be okay ... you will be law-suit proof...

... at least as long as fervently anti-plaintiff Republicans run the wheels of (in)justice and can be counted on to apply and interpret the law to make sure defendants are not held responsible for their torts, and wayward government officials for dereliction of their official duties.

City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability suit, dangerous road condition, drowning death, defense of lack of actual knowledge of dangerous condition, plea to the jurisdiction, plea of ignorance, lack-of-acutal-knowledge defense)

PER CURIAM OPINION [i.e., no member of the court found fault with the decision or the reasoning]

In this premise defect case, we determine whether claimants met their evidentiary burden of showing that a governmental entity had actual knowledge of a dangerous condition to establish a waiver of immunity under the Texas Tort Claims Act.

Patrick Stewart Sr.’s car stalled while he was attempting to traverse a low-water crossing on Bunert Road, which was flooded due to heavy rains. Stewart left his children inside the car and went to seek help. When he returned, his car had been swept away, and his children drowned.

Stewart and Sentria Whitfield (collectively Plaintiffs), individually and as heirs to the estates of their children Patrick Stewart Jr. and Brooke Stewart, sued the City of Corsicana. The trial court granted the City’s plea to the jurisdiction based on governmental immunity, finding that the City did not have actual knowledge that the crossing was flooded at the time of the accident. A divided court of appeals reversed and remanded the case to the trial court for further proceedings. 211 S.W.3d 844, 853.

Because we conclude that Plaintiffs failed to raise a fact issue regarding the City’s actual knowledge of a dangerous condition, we reverse the judgment of the court of appeals and dismiss the claims for lack of jurisdiction.

The Texas Tort Claims Act provides a limited waiver of sovereign immunity when a claim arises from a premise defect. Tex. Civ. Prac. & Rem. Code §§ 101.022(a), .025. To establish a waiver of immunity, the plaintiff must show the governmental entity had actual knowledge “of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition c[ould] develop over time.” City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006); see also Tex. Civ. Prac. & Rem. Code § 101.022(a).[1]If a plea to the jurisdiction challenges the existence of jurisdictional facts, a reviewing court considers the relevant evidence to determine whether a fact question on the jurisdictional issue exists. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004).

If the evidence raises a fact question on jurisdiction, then the trial court cannot grant the plea to the jurisdiction, and the fact question will be resolved by the fact finder. Id. at 227–28. If the relevant evidence is undisputed or fails to raise a fact question, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.At the trial court’s evidentiary hearing, the City offered evidence that it was unaware the crossing had flooded when the accident occurred.

Ronald Lynch, the City’s Public Works Director, testified that the City first learned the crossing had flooded when Stewart called 911 for help, which was after the dangerous condition had arisen.The court of appeals held that in this case, actual knowledge could be inferred from circumstantial evidence including: (1) testimony from Lynch that the crossing “sometimes” flooded during heavy rains, that the crossing was designed to allow water to flow over it during heavy rains, and that the City closed the crossing on several prior occasions due to flooding; (2) a study commissioned by the City several years prior to the accident identifying the crossing as vulnerable to future flooding; (3) a former City Council member’s testimony that she informed City personnel of “dangerous conditions” at the crossing during “light and heavy rains”; (4) the National Weather Service’s issuance of four pertinent severe weather warnings on the afternoon and night preceding the accident; (5) evidence that the Texas Department of Transportation (TxDOT) closed a road one mile upstream from the crossing several hours prior to the accident due to flooding; and (6) the responding officer’s statement that he had just assisted another officer apprehend a murder suspect prior to being dispatched to Stewart’s 911 call and, therefore, must have been aware of the heavy rainfall.The City contends that the evidence relied on by the court of appeals supports an inference of constructive, not actual, knowledge of a dangerous condition. Plaintiffs respond that the City’s knowledge that the crossing tended to flood during heavy rains, combined with specific knowledge that it was raining hard on the night of the accident, supports the inference that the City actually knew the crossing was flooded at the time of the accident. In addition to the evidence relied on by the court of appeals, Plaintiffs point to statements in the responding officer’s report at the evidentiary hearing that the rain was intense as he drove to assist Stewart, that local dispatch was inundated with calls for help from stranded motorists and flooded homeowners, and that many officers could not reach those in need due to high water. Plaintiffs further argue that according to City procedures, City officials are supposed to monitor areas likely to flood when flooding is anticipated.It is undisputed that no direct evidence was offered that the City knew the crossing was flooded prior to the accident.

Actual knowledge requires knowledge that the dangerous condition existed at the time of the accident, as opposed to constructive knowledge which can be established by facts or inferences that a dangerous condition could develop over time. See Thompson, 210 S.W.3d at 603.

Here, the Legislature required that the City actually know that the crossing was flooded at the time of the accident. See Tex. Civ. Prac. & Rem. Code § 101.022(a); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Circumstantial evidence establishes actual knowledge only when it “either directly or by reasonable inference” supports that conclusion. State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002); see also City of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996). For example, in State v. Gonzalez, we held that evidence TxDOT knew stop signs had been repeatedly vandalized could not reasonably support the inference that it knew the signs were missing, in the absence of evidence that someone had reported the signs missing before the accident occurred. Gonzalez, 82 S.W.3d at 330 (analyzing section 101.060(a)(3) of the Texas Tort Claims Act which also requires actual knowledge). Conversely, in City of San Antonio v. Rodriguez, involving a suit for injuries suffered as a result of a fall on a wet public basketball court, the evidence established that the City knew that the rain would drip to the floor through admitted leaks in the roof of the recreation center. Rodriguez, 931 S.W.2d at 537. The City’s employee in charge of the building had contemporaneous actual knowledge of the dangerous condition in the vicinity of the hazard–he knew of leaks in the roof and knew that it had been raining. Id. We held that, “[d]epending on the position of the leaks above the floor and the amount of rain, the jury might have inferred that the person in charge knew that there would be water on the floor.” Id. This was a direct and reasonable inference from the evidence submitted. Accordingly, we rejected the City’s contention that there was no evidence of actual knowledge. Id.Unlike Rodriguez, however, the evidence presented in this case does not reasonably support the inference that the City actually knew the crossing was flooded on the night of the accident. Plaintiffs’ evidence indicates that there was inclement weather in the vicinity of Corsicana on the night of the accident, that a road one mile upstream was closed due to flooding, that the City knew the crossing tended to flood during heavy rains, and that the City was aware of heavy rains and flooding after the accident occurred. Neither this evidence nor the inferences arising therefrom raise a fact question on the City’s actual knowledge that a dangerous condition existed at or near the crossing at the time of the accident. There was evidence that TxDOT, a different governmental entity, had closed a different road due to flooding several hours prior to the accident, but Plaintiffs did not present evidence that the City knew of the road closure. Additionally, the responding officer’s statements regarding the road conditions he encountered en route to Stewart and the numerous flood-related calls the City received after he left the scene of the accident describe the City’s knowledge of the weather and road conditions after the accident occurred, not before.[2]

Finally, Plaintiffs have not identified any City official likely to have made a similar connection.[3] Cf. Rodriguez, 931 S.W.2d at 537. Such evidence is insufficient to support an inference of actual knowledge of a dangerous condition at the time it was occurring. See Gonzalez, 82 S.W.3d at 330. As the Legislature created an actual, not constructive, knowledge standard for waiver of immunity, we conclude that Plaintiffs failed to raise a fact issue regarding the City’s knowledge of a dangerous condition.And regardless of whether the City should have been better prepared to respond, the City is immune from liability for discretionary decisions concerning the expenditure of limited resources for the safety of its citizens. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (the design of roadways and installation of safety features are discretionary decisions that are immune from suit) (citing Tex. Civ. Prac. & Rem. Code § 101.056(2)); cf. State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979) (discussing the police and fire protection exception to waiver of immunity).The City also contends that the court of appeals erred by failing to address whether the crossing constituted an actionable premise defect. See Ramirez, 74 S.W.3d at 867. Because we conclude that the court of appeals erred in finding that Plaintiffs raised a fact issue as to the City’s actual knowledge of a dangerous condition, we need not address the City’s other point of error. See Mower v. Boyer, 811 S.W.2d 560, 563 n.3 (Tex. 1991) (declining to address a broader issue when the case is resolvable on a narrower ground).Accordingly, without hearing argument, the judgment of the court of appeals is reversed and Plaintiffs’ action dismissed for lack of jurisdiction. See Tex. R. App. P. 59.1.OPINION

DELIVERED: March 28, 2008

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[1] Plaintiffs do not dispute that they must show actual, not constructive, knowledge to establish a waiver of immunity in this case.

[2] Specifically, the officer stated that “[w]hile enroute [sic] the rain was so intense and the water so high on E. 5th that my vehicle almost flooded out 3 times,” and that “[s]hortly after I left the scene as dispatch was inundated with calls for help all over town for [sic] stranded motorist [sic] in high rising water and flooded homes.” Plaintiffs presented no evidence that any of these calls were placed before the accident.

[3] Although City officials were supposed to monitor flood-prone areas, there is no evidence that this procedure was implemented and followed on the night of the accident. Lynch, the City’s Public Works Director, testified that he was asleep on the night of the accident and was not

Full case style: CITY OF CORSICANA, TEXAS v. PATRICK STEWART SR. AND SENTRIA WHITFIELD, INDIVIDUALLY AND AS HEIRS TO THE ESTATES OF PATRICK STEWART JR. AND BROOKE STEWART; from Navarro County; 10th district (10-06- 00044-CV, 211 S.W.3d 844, 12-06-06) 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 for want of jurisdiction.

Per Curiam Opinion