Texas Department of Transportation v. Stephanie Gutierrez and Ronnie Gutierrez--Appeal from 79th Judicial District Court of Jim Wells County

DISSENTING OPINION
No. 04-06-00583-CV
TEXAS DEPARTMENT OF TRANSPORTATION,
Appellant
v.
Stephanie GUTIERREZ and Ronnie Gutierrez,
Appellees
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 04-02-42222
Honorable Richard Clark Terrell, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Dissenting opinion by: Sandee Bryan Marion, Justice

 

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: September 5, 2007

 

I must respectfully dissent because I do not believe the gravel on the road in this case rises to the level of a special defect.

A special defect must be a condition of the same kind or class as an excavation or roadway obstruction and present "an unexpected and unusual danger to ordinary users of roadways." State Dep't of Highways v. Payne, 838 S.W.2d 235, 238 (Tex. 1992); see also State Dep't of Highways v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (icy bridge during conditions of freezing temperatures was something motorists can and should anticipate); County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978). Special defects unexpectedly and physically impair a car's ability to travel on the road. See, e.g., Morse v. State, 905 S.W.2d 470, 475 (Tex. App.--Beaumont 1995, writ denied) (holding that ten-inch drop-off along shoulder that prevented car's left wheels from reentering the roadway once they had slipped off was a special defect).

Typically, conditions on or around roadways that courts have found to be special defects possess unexpected and unusual dangers toward ordinary users of the roadways, and the conditions are substantial in size. See County of Harris, 573 S.W.2d at 178-79 (concluding that an oval-shaped hole six to ten inches deep extending across ninety percent of roadway, which caused car traveling at thirty-five miles per hour to flip over, was a special defect). Thus, the size of the dangerous condition should be considered in determining whether the condition constitutes a special defect. County of Harris, 573 S.W.2d at 179; see also Montgomery County v. Reed, No. 09-06-402-CV, 2006 WL 3823897, at *3 (Tex. App.--Beaumont Dec. 28, 2006, no pet.) (court held plaintiffs did not establish that loose gravel, without evidence of an excessive amount, was unexpected on a limestone-based rural road).

Here, it is true that several witnesses described the amount of gravel as "excessive." Trooper Almanza also said he slipped on the gravel exiting his vehicle and he thought four drivers losing control on the same spot too much of a coincidence. However, two of these drivers, by their own admission, were driving well in excess of the speed limit as they rounded the curve. Although there was some evidence about the size of the area covered with gravel, no evidence was admitted as to the depth or amount of gravel on the curve. No witness quantified "excessive."

Further, to constitute a special defect, the condition must unexpectedly impair the ordinary user of the roadway. Although disputed during trial, the parties stipulated after close of evidence to the existence of a Loose Gravel sign at the scene. The Loose Gravel sign as well as the Curve Ahead with speed advisory sign met the requirements of the Texas Manual on Uniform Traffic Control Devices. With these signs in place, the condition was not "unexpected." Therefore, I would hold that the record does not establish, as a matter of law, that the amount of gravel on the road constituted a special defect. Because I do not believe a special defect exists in this case, TxDOT is immune from suit on the issue of whether it failed to adequately warn because it should have, but did not, place different signs at the scene. See Tex. Civ. Prac. & Rem. Code Ann. 101.56; 101.060 (Vernon 2005).

For these reasons, I would reverse the trial court's judgment and render a dismissal in favor of TxDOT.

 

Sandee Bryan Marion, Justice