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
Showing posts with label premises liability. Show all posts
Showing posts with label premises liability. Show all posts
Monday, May 25, 2009
Saturday, May 9, 2009
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.
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)
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)
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)
Thursday, September 4, 2008
No-Duty Court guts jury's award of damages to family of crime victim
JUDICIAL TORT REFORM: Trammell Crow v. Gutierrez (Tex. 2008)
Applying one of its favorite jurisprudential hatchets to kill awards of damages by Texas juries, the Texas Supreme Court here decides as a matter of law that the landowner owed the person killed on its premises no duty to provide adequate security to prevent the deadly attack.
No duty - no liability, regardless of the jury might have found based on the evidence presented.
The shooting was not foreseeable, the majority, in an opinion by Don R. Willett concludes, although 227 crimes had been reported over the course of the prior two years at the same location. Because most of these crimes were less severe and only a dozen or so involved robber, assault and/or guns, the land owner had no reason to anticipate that things might escalate. The shooting victim suffered the effects of a more serious crime than what was common for the area, the mall owner had no duty to provide security against that more serious risk, and therefore his survivors deserve having the jury verdict in their favor reversed.
Or so the Supremes' reasoning goes.
In reaching this result, the majority of the Court finds comfort in expert evidence in the case that showed that less crime occurred at the mall in question than in the city as a whole. The obvious fact that the entire population does not daily parade through the mall, much less reside there on a permanent basis - i.e., that the incidence of crime would have to be measured against the number of people at risk, rather than the city's population as a whole was merely acknowledged in passing.
Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett) (premises liability, owner liability for crime on property, forseeability, no duty)
TRAMMELL CROW CENTRAL TEXAS, LTD. v. MARIA GUTIERREZ, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF LUIS GUTIERREZ; AND KAROL FERMAN AS NATURAL
PARENT AND AS NEXT FRIEND OF LUIS ANGEL GUTIERREZ; from Bexar County; 4th district
(04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice
Medina, and Justice Green joined.
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice
Johnson joined.
Applying one of its favorite jurisprudential hatchets to kill awards of damages by Texas juries, the Texas Supreme Court here decides as a matter of law that the landowner owed the person killed on its premises no duty to provide adequate security to prevent the deadly attack.
No duty - no liability, regardless of the jury might have found based on the evidence presented.
The shooting was not foreseeable, the majority, in an opinion by Don R. Willett concludes, although 227 crimes had been reported over the course of the prior two years at the same location. Because most of these crimes were less severe and only a dozen or so involved robber, assault and/or guns, the land owner had no reason to anticipate that things might escalate. The shooting victim suffered the effects of a more serious crime than what was common for the area, the mall owner had no duty to provide security against that more serious risk, and therefore his survivors deserve having the jury verdict in their favor reversed.
Or so the Supremes' reasoning goes.
In reaching this result, the majority of the Court finds comfort in expert evidence in the case that showed that less crime occurred at the mall in question than in the city as a whole. The obvious fact that the entire population does not daily parade through the mall, much less reside there on a permanent basis - i.e., that the incidence of crime would have to be measured against the number of people at risk, rather than the city's population as a whole was merely acknowledged in passing.
Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett) (premises liability, owner liability for crime on property, forseeability, no duty)
TRAMMELL CROW CENTRAL TEXAS, LTD. v. MARIA GUTIERREZ, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF LUIS GUTIERREZ; AND KAROL FERMAN AS NATURAL
PARENT AND AS NEXT FRIEND OF LUIS ANGEL GUTIERREZ; from Bexar County; 4th district
(04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice
Medina, and Justice Green joined.
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice
Johnson joined.
Saturday, April 19, 2008
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.")
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.")
Sunday, June 17, 2007
Brinson Ford, Inc. v. Alger (Tex. Jun. 15, 2007)(per curiam)
Texas Supreme Court Rules in Defedant's Favor in Premises Liability Lawsuit
Brinson Ford, Inc. v. Alger, No. 05-0722 (Tex. Jun. 15, 2007)(per curiam)(PI, premises liability)
Full case style: Brinson Ford, Inc. Indidvidually and d/b/a/ Brinson Ford Lincoln Mercury v. Connie W. Alger
Appellate court and opinion below: Tenth Court of Appeals, No. 10-04-00341-CV, 169 S.W.3d 340, Jun. 22, 2005)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Supreme Court reverses the court of appeals' judgment and renders judgment for the Defendant.
Find terms: premises liability, unreasonable risk, known to property owner
PER CURIAM OPINION
Connie Alger fell from a pedestrian ramp while visiting a car dealership and brought this premises liability action for the injuries she sustained. The trial court granted summary judgment in the premises owner’s favor without specifying the ground. A divided court of appeals reversed, holding that fact issues existed as to the premises owner’s actual or constructive knowledge of the condition, whether the condition posed an unreasonable risk of harm, and whether the premises owner failed to exercise reasonable care to reduce or eliminate the risk of harm. 169 S.W.3d 340.
We hold that Alger presented no evidence of a premises condition that posed an unreasonable risk of harm, and reverse and render judgment in Brinson Ford’s favor.
Connie Alger went to Brinson Ford, Inc. to pick up friends who were having work done on their car. Alger entered the dealership through a side entrance, but exited through the front door where a pedestrian ramp leads to the parking lot. Although there were handrails along most of the ramp as it sloped down to ground level, a small portion of the ramp extended beyond the handrails to the sidewalk. The highest point of this unrailed section was four inches above the sidewalk, and it was marked by yellow paint along the ramp’s edges and around the parking space next to the ramp. The ramp is the dealership’s main entrance, and Brinson Ford had no record that anyone had ever fallen from it in the nearly ten years between the business’s opening and Alger’s fall. Alger testified that when she reached the point where the handrails ended, she thought the ramp had ended too. When she turned to walk toward her car, Alger stepped off the unrailed portion of the ramp and fell.
Alger sued Brinson Ford alleging that the ramp’s configuration was a premises condition posing an unreasonable risk of harm, Brinson Ford knew or should have known of the danger, and Brinson Ford failed to exercise ordinary care to protect her from it.
The dealership filed a motion for summary judgment under sections (c) and (i) of Rule 166a of the Texas Rules of Civil Procedure. The motion asserted a number of grounds, including that there was no evidence of a premises condition that presented an unreasonable risk of harm; alternatively, Brinson Ford contended the evidence established as a matter of law that the condition of the premises did not pose an unreasonable risk of harm.
In response to the dealership’s motion, Alger submitted the affidavit of its safety engineering expert, Jack T. Madeley. Madeley’s affidavit identifies the safety requirements of the Texas Accessibility Standards established by the Texas Department of Licensing and Regulation [1] and the Standard Practice for Safe Walking Surfaces[2], and acknowledges that the ramp meets both sets of requirements. But Madeley opines that:
[t]he ramp in question is deceiving in appearance. The upper level of the ramp has railing down the sides. The lower part does not. This can give a visual cue indicating the ramp does not extend. The sides of the lower portion of the ramp where Ms. Alger fell was a varying slope along the side of the parking area. If the yellow stripping as seen in the photos was present at the time of the incident . . . [i]t would likely lead one to believe that it was to mark the edge of parking spaces.
Madeley’s affidavit further concludes that the ramp was “unreasonably dangerous.” The court of appeals held that this statement was conclusory and thus no evidence of a premises defect. 169 S.W.3d at 344. Alger does not challenge that holding here, and we give no weight to Madeley’s legal conclusion.
The plaintiff in a premises liability case must establish that the premises owner knew or should have known of a dangerous condition on the premises that presented an unreasonable risk of harm and that the condition proximately caused the plaintiff’s injuries. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). The duty a premises owner owes to its invitees is not that of an insurer. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). That is to say, a condition is not unreasonably dangerous simply because it is not foolproof. Brookshire Grocery Co. v. Taylor, ___ S.W. 3d ___, ___ (Tex. 2006). A condition is unreasonably dangerous if it presents an unreasonable risk of harm. See Seideneck, 451 S.W.2d at 754.
We hold that, as a matter of law, the ramp at issue in this case did not pose an unreasonable risk of harm. The area of the ramp without handrails met applicable safety standards and was further outlined in yellow stripping that the dealership added, which is a common method used to indicate a change in elevation. The highest point of the downward-sloping unrailed portion of the ramp was four inches, less than the height of an average step. No other customer visiting the property over a ten-year period had ever been injured by the ramp, nor has the dealership received complaints about the ramp’s safety. Thus, the trial court properly granted summary judgment in the dealership’s favor, and the court of appeals erred in reversing the trial court’s judgment. Accordingly, we grant the petition for review and without hearing oral argument pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, we reverse the court of appeals’ judgment and render judgment for Brinson Ford.
OPINION DELIVERED: June 15, 2007
[1] Available at http://www.license.state.tx.us/ab/tas/tassection04_02 to 04_09.pdf.
[2] American Society for Testing and Materials, Standard Practice for Safe Walking Surfaces, in the Annual Book of ASTM Standards 2 (1996).
Brinson Ford, Inc. v. Alger, No. 05-0722 (Tex. Jun. 15, 2007)(per curiam)(PI, premises liability)
Full case style: Brinson Ford, Inc. Indidvidually and d/b/a/ Brinson Ford Lincoln Mercury v. Connie W. Alger
Appellate court and opinion below: Tenth Court of Appeals, No. 10-04-00341-CV, 169 S.W.3d 340, Jun. 22, 2005)
Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Supreme Court reverses the court of appeals' judgment and renders judgment for the Defendant.
Find terms: premises liability, unreasonable risk, known to property owner
PER CURIAM OPINION
Connie Alger fell from a pedestrian ramp while visiting a car dealership and brought this premises liability action for the injuries she sustained. The trial court granted summary judgment in the premises owner’s favor without specifying the ground. A divided court of appeals reversed, holding that fact issues existed as to the premises owner’s actual or constructive knowledge of the condition, whether the condition posed an unreasonable risk of harm, and whether the premises owner failed to exercise reasonable care to reduce or eliminate the risk of harm. 169 S.W.3d 340.
We hold that Alger presented no evidence of a premises condition that posed an unreasonable risk of harm, and reverse and render judgment in Brinson Ford’s favor.
Connie Alger went to Brinson Ford, Inc. to pick up friends who were having work done on their car. Alger entered the dealership through a side entrance, but exited through the front door where a pedestrian ramp leads to the parking lot. Although there were handrails along most of the ramp as it sloped down to ground level, a small portion of the ramp extended beyond the handrails to the sidewalk. The highest point of this unrailed section was four inches above the sidewalk, and it was marked by yellow paint along the ramp’s edges and around the parking space next to the ramp. The ramp is the dealership’s main entrance, and Brinson Ford had no record that anyone had ever fallen from it in the nearly ten years between the business’s opening and Alger’s fall. Alger testified that when she reached the point where the handrails ended, she thought the ramp had ended too. When she turned to walk toward her car, Alger stepped off the unrailed portion of the ramp and fell.
Alger sued Brinson Ford alleging that the ramp’s configuration was a premises condition posing an unreasonable risk of harm, Brinson Ford knew or should have known of the danger, and Brinson Ford failed to exercise ordinary care to protect her from it.
The dealership filed a motion for summary judgment under sections (c) and (i) of Rule 166a of the Texas Rules of Civil Procedure. The motion asserted a number of grounds, including that there was no evidence of a premises condition that presented an unreasonable risk of harm; alternatively, Brinson Ford contended the evidence established as a matter of law that the condition of the premises did not pose an unreasonable risk of harm.
In response to the dealership’s motion, Alger submitted the affidavit of its safety engineering expert, Jack T. Madeley. Madeley’s affidavit identifies the safety requirements of the Texas Accessibility Standards established by the Texas Department of Licensing and Regulation [1] and the Standard Practice for Safe Walking Surfaces[2], and acknowledges that the ramp meets both sets of requirements. But Madeley opines that:
[t]he ramp in question is deceiving in appearance. The upper level of the ramp has railing down the sides. The lower part does not. This can give a visual cue indicating the ramp does not extend. The sides of the lower portion of the ramp where Ms. Alger fell was a varying slope along the side of the parking area. If the yellow stripping as seen in the photos was present at the time of the incident . . . [i]t would likely lead one to believe that it was to mark the edge of parking spaces.
Madeley’s affidavit further concludes that the ramp was “unreasonably dangerous.” The court of appeals held that this statement was conclusory and thus no evidence of a premises defect. 169 S.W.3d at 344. Alger does not challenge that holding here, and we give no weight to Madeley’s legal conclusion.
The plaintiff in a premises liability case must establish that the premises owner knew or should have known of a dangerous condition on the premises that presented an unreasonable risk of harm and that the condition proximately caused the plaintiff’s injuries. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). The duty a premises owner owes to its invitees is not that of an insurer. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000). That is to say, a condition is not unreasonably dangerous simply because it is not foolproof. Brookshire Grocery Co. v. Taylor, ___ S.W. 3d ___, ___ (Tex. 2006). A condition is unreasonably dangerous if it presents an unreasonable risk of harm. See Seideneck, 451 S.W.2d at 754.
We hold that, as a matter of law, the ramp at issue in this case did not pose an unreasonable risk of harm. The area of the ramp without handrails met applicable safety standards and was further outlined in yellow stripping that the dealership added, which is a common method used to indicate a change in elevation. The highest point of the downward-sloping unrailed portion of the ramp was four inches, less than the height of an average step. No other customer visiting the property over a ten-year period had ever been injured by the ramp, nor has the dealership received complaints about the ramp’s safety. Thus, the trial court properly granted summary judgment in the dealership’s favor, and the court of appeals erred in reversing the trial court’s judgment. Accordingly, we grant the petition for review and without hearing oral argument pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, we reverse the court of appeals’ judgment and render judgment for Brinson Ford.
OPINION DELIVERED: June 15, 2007
[1] Available at http://www.license.state.tx.us/ab/tas/tassection04_02 to 04_09.pdf.
[2] American Society for Testing and Materials, Standard Practice for Safe Walking Surfaces, in the Annual Book of ASTM Standards 2 (1996).
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