DocketNumber: No. 04-17-00091-CV
Citation Numbers: 566 S.W.3d 18
Judges: Rios
Filed Date: 8/8/2018
Status: Precedential
Modified Date: 1/21/2022
Hector R. Ramirez brought a premises liability action against the Texas Department of Transportation ("TxDOT") for injuries he sustained when his tractor-trailer tipped over after encountering an 8 ¾ inch drop-off on the edge of the roadway. After a jury found TxDOT's negligence caused the accident, the trial court entered an order awarding Ramirez $250,000 in damages. On appeal, TxDOT contends the trial court's judgment should be reversed because the drop-off was not a special defect *21and because the drop-off was an open and obvious condition. Because we conclude the drop-off in this case was a special defect and was not open and obvious, we affirm the trial court's judgment.
BACKGROUND
On March 20, 2014, Ramirez was driving a tractor-trailer and traveling southbound on U.S. Highway 83 ("US 83") carrying freight from Del Rio to Laredo. US 83 is a two-lane highway with paved nine-foot shoulders. As Ramirez neared a truck stop, he saw a tractor-trailer stopped in the same lane waiting to turn left into the truck stop. To avoid colliding with the stalled trailer, Ramirez slowed and downshifted. Because he was afraid he would not be able to come to a complete stop to avoid colliding with the stopped tractor-trailer, Ramirez maneuvered onto the shoulder of the roadway to go around the trailer. In the course of maneuvering around the stopped trailer via the shoulder, the front right tire of Ramirez's tractor trailer encountered an 8¾ inch drop-off at the edge of the paved shoulder between the shoulder and the ground. When Ramirez attempted to bring the tire back onto the pavement, the tire popped, causing Ramirez's tractor trailer to tip over, landing on its side.
During the jury trial, the jury heard testimony from Ramirez, Texas Highway Patrol Trooper Juarez, TxDOT Maintenance Supervisor Anastacio Cantu, and accident reconstructionist James Locke. Trooper Juarez, one of the officers who responded to the scene, testified that based on the circumstances of the crash, it appeared Ramirez safely attempted to get around the stopped truck. Trooper Juarez further testified that Ramirez's action in attempting to pass the stalled trailer to the right by going onto the shoulder was legal. Cantu testified TxDOT's maintenance manual instructs TxDOT employees regarding how to address highway drop-offs. Cantu explained that the manual instructs that three inches is the maximum depth at which a drop-off is acceptable, because a three-inch drop-off is a hazard that could cause an accident. Cantu agreed the drop-off where the accident occurred was a hazardous condition that needed to be addressed. Cantu explained that the state has a scoring system for various aspects of the state's roads and highways, including the edges of the roadway. According to that scoring system, a "failed" roadway edge was one with a drop-off greater than four inches. Cantu explained that almost all drivers who encounter a drop-off of more than four inches can lose control of their vehicle and are at greater risk of having an accident. Cantu agreed that the drop-off encountered by Ramirez would be an unexpected condition on the shoulder of the roadway. Cantu testified that TxDOT crews conduct "windshield drives" wherein they inspect highway conditions, and that a TxDOT crew driving down US 83 could have seen the drop-off. Cantu further testified that ten days prior to the incident, a TxDOT crew was repairing potholes on the same stretch of the roadway where the drop-off was located; TxDOT personnel should have been able to see the drop-off while inspecting the roadway; and he as the TxDOT supervisor should have known about a drop-off of that size. Moreover, Cantu confirmed that as the TxDOT supervisor, he should have had policies and procedures in place so that he would have known about the drop-off.
Locke testified, "About every 21 minutes somebody runs off the roadway and they're either killed or very seriously injured. And oftentimes, it's because the pavement edge" has a drop-off. Locke explained a drop-off like the one in this case is a "defectively dangerous condition" because when the right side of a vehicle goes *22off the edge of a drop-off, drivers, in an effort to get back on the pavement, will steer too hard to the left, resulting in a loss of control of the vehicle. Although Locke testified that, had Ramirez applied maximum braking upon seeing the stalled trailer, he would have been able to stop behind the trailer, Locke explained that a tractor-trailer braking at maximum force in that situation could be dangerous and cause the trailer to jackknife. Locke explained that given the short amount of time Ramirez had to make the decision to brake, moving onto the shoulder to pass the truck on the right was a reasonable decision.
After receipt of evidence and testimony, the jury returned a verdict finding that TxDOT's negligence was a proximate cause of the accident, TxDOT was eighty percent responsible for the accident, and Ramirez had suffered damages in the amount of $402,500. Thereafter, the trial court entered a judgment awarding Ramirez $250,000 in damages, the maximum amount allowed under law. See TEX. CIV. PRAC. & REM. CODE § 101.023(a) (limiting state government's liability for tort claims to $250,000 per person).
This appeal followed.
SPECIAL DEFECT
In its first and second issues, TxDOT contends the trial court's judgment must be reversed because the drop-off was not a special defect as a matter of law and Ramirez failed to obtain a jury finding that TxDOT had actual knowledge of the drop-off. "Whether a condition is a special defect is a question of law that we review de novo." Tex. Dep't of Transp. v. Perches ,
Texas Tort Claims Act
"A governmental entity
What Constitutes a Special Defect?
"The TTCA does not define 'special defect' but likens it to 'excavations or *23obstructions' that exist 'on' the roadway surface." Denton Cty. v. Beynon ,
The Texas Supreme Court has observed that "[t]he class of special defects contemplated by the statute is narrow." The Univ. of Tex. at Austin v. Hayes ,
TxDOT argues the drop-off is not a special defect because it is not a condition located on the surface of the roadway and because it did not physically impair Ramirez's ability to travel on the roadway. Although the supreme court has not specifically determined "whether a hazard located off the road can (or can never) constitute a special defect," the supreme court has clarified that " '[w]hether on a road or near one,' conditions can be special defects like excavations or obstructions 'only if they pose a threat to the ordinary users of a particular roadway.' " Beynon ,
Courts have found that drop-offs at the edge of the roadway are special defects. In Morse v. State , the court held that a drop-off along the roadway shoulder
*24In contrast, the supreme court has held that conditions unconnected to the roadway or features that were designed to delineate the boundaries of the roadway are not special defects. In Perches , the supreme court held that a concrete guardrail was not a special defect where a driver crashed into the barrier when attempting to turn left onto a bridge. See Perches ,
Discussion
In this case, Cantu, the TxDOT maintenance supervisor, testified that according to TxDOT's maintenance manual, three inches is the maximum acceptable height of a drop-off; that a three-inch drop-off is an unexpected hazard that could cause an accident; and that almost all drivers that encounter a drop-off of more than four inches could lose control of their vehicle. Here, the drop-off at the edge of the shoulder was 8 ¾ inches-well in excess of what TxDOT considers the maximum acceptable height, and what Ramirez's accident reconstruction expert Locke labeled a "defectively dangerous condition." Locke testified that it is common for drivers to be killed or seriously injured by running off the roadway and that oftentimes, the cause of the accident is a drop-off at the pavement edge. Locke explained that steep drop-offs such as the one in this case effectively prevent the tires of a vehicle from reentering the pavement, and that in an effort to re-enter the roadway, drivers will often steer too far to the left, causing them to lose control of their vehicles.
Based on this evidence, we conclude the drop-off at the edge of the paved shoulder posed an unexpected danger to ordinary users of the roadway. See Morse ,
The drop-off condition encountered by Ramirez was not located off and unconnected to the roadway, such as the floodgate arm in Beynon . See *25Beynon ,
Therefore, given the excessive depth of the drop-off, its potential to impair motorists' ability to travel, its unreasonably dangerous nature, and the threat it posed to ordinary users of the roadway, we conclude the drop-off in this case was a special defect. We overrule TxDOT's first and second issues.
OPEN AND OBVIOUS CONDITION
In its third issue, TxDOT contends the trial court's judgment should be reversed because the drop-off was an open and obvious condition.
Because "there is no need to warn against obvious or known dangers, a landowner generally has no duty to warn of hazards that are open and obvious or known to the invitee." Austin v. Kroger Texas, L.P. ,
In this case, the record does not support TxDOT's contention that the drop-off was either open and obvious or known to Ramirez. Ramirez testified he had never noticed the drop-off before the accident despite regularly traveling on this highway. Cantu testified that although a commercial driver driving past the drop-off should have noticed the drop-off, a driver would not notice it unless he were at the shoulder and had arrived at the location of the drop-off. Moreover, there was no sign warning of the drop-off. We conclude the drop-off was not an open and obvious condition.
*26Accordingly, we overrule TxDOT's third issue.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
TxDOT, as a state agency, is a governmental entity entitled to sovereign immunity. See Tex. Dep't of Transp. v. Sefzik ,
Although the opinion at first characterized the drop-off as being "between the traffic lane and the shoulder," the opinion later refers to it as "a shoulder drop-off," and "the drop-off from the road shoulder." One witness who had previously had an accident upon encountering the drop-off described how he "slipped off the shoulder," and another witness described how his "left rear tire came off that shoulder."