In Re Texas Department of Transportation v. the State of Texas

Opinion filed August 23, 2023
In The
Eleventh Court of Appeals
__________
No. 11-23-00112-CV
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IN RE TEXAS DEPARTMENT OF TRANSPORTATION
Original Mandamus Proceeding
MEMORANDUM OPINION
On May 7, 2017, Marleigh Patterson lost control of her vehicle while
negotiating a curve on Farm-to-Market Road 1226 in Jones County. The vehicle
skidded off the roadway and hit a tree, injuring Patterson. Tragically, Patterson’s
two-year-old daughter, who was a passenger in the vehicle, was killed. Following
the accident, Patterson gave varying accounts of the reason that she lost control of
the vehicle, none of which related to the condition of the roadway. She also admitted
that she was traveling at a speed that was more than the posted limit as she
approached the curve.
Patterson and Christopher Cumpton, the father of the minor, sued the Texas
Department of Transportation (TxDOT), alleging that the accident was caused by
inadequate maintenance on a portion of the roadway near the crash site. The jury
returned a finding of “no” on the question of TxDOT’s negligence and a finding of
“yes” on the issue of Patterson’s negligence. After the trial court entered a judgment
in favor of TxDOT based on the jury’s verdict, Patterson filed a motion for a new
trial, arguing that the evidence was factually insufficient to support the jury’s
answers. The trial court granted the motion.
In this proceeding, TxDOT asks us to order the trial court to vacate the order
granting a new trial. We conditionally grant the writ of mandamus.
Background Facts
Patterson and Cumpton tried the case on the theory that Patterson lost control
of the vehicle after her right tires dropped off a portion of the curve that was
substantially eroded. They maintain that the erosion constitutes a special defect and
that TxDOT was negligent in either failing to repair the roadway and/or failing to
warn of the danger. See TEX. CIV. PRAC. & REM. CODE § 101.022 (West 2019)
(limiting a governmental unit’s duties for a premises defect to those that are owed to
a “licensee” of private property, except for certain “special defects” on highways,
roads, and streets).
A diagram that was prepared by Texas Department of Public Safety Sergeant
Justin Tabor highlights an area of erosion along the right side of the curve.
According to the diagram, the erosion ends about one-hundred feet before skid
marks appear on the roadway and over two-hundred feet from the crash site.
At trial, Patterson testified that she had no recollection of encountering
erosion on the roadway at the time of the accident, and no other eyewitnesses were
called to support the theory that the erosion had caused Patterson to lose control of
her vehicle. Instead, Patterson and Cumpton relied on the opinions of various DPS
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personnel to support their theory of causation. These witnesses included Trooper
Daniel White, who prepared the DPS investigation report.
TxDOT alleged, among other things, that Patterson’s speed exceeded the
posted limit of seventy miles per hour at the time of the incident. Patterson testified
that her cruise control was set at seventy-three or seventy-four miles per hour as she
approached the accident site. Additionally, TxDOT solicited testimony from Bill
Nalle, a mechanical engineer and accident reconstruction expert, who indicated that
Patterson was traveling more than eighty miles per hour when the vehicle began to
skid.
In response to the question of whether the negligence of TxDOT was a
proximate cause of the occurrence in question, the jury answered “no.” In response
to the question of whether the negligence of Patterson was a proximate cause of the
occurrence in question, the jury answered “yes.” Based on this verdict, the trial court
rendered a take-nothing judgment in favor of TxDOT. This judgment was later
vacated when the trial court granted Patterson’s motion for new trial.
Analysis
In its first two issues, TxDOT asserts that the trial court abused its discretion
in determining that the evidence was factually insufficient to support the jury’s
finding of “no” with respect to TxDOT and “yes” with respect to Patterson.1
The Texas constitution provides that the right to trial by jury “shall remain
inviolate.” TEX. CONST. art. I, § 15. For that reason, a trial court’s order must
provide meaningful reasons for setting aside a jury verdict. In re Columbia Med.
Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 214 (Tex. 2009) (orig.
1
TxDOT also asserts a third issue, arguing that the trial court abused its discretion in substituting
its own judgment for that of the jury. We believe that this question is already subsumed within the first two
issues, and we therefore do not address it as a separate matter.
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proceeding); see also In re Rudolph Auto., LLC, No. 21-0135, 2023 WL 4035804,
at *4 (Tex. June 16, 2023) (orig. proceeding) (“Columbia stands initially for the
principle that it is an abuse of discretion to grant a new trial if the order is not
accompanied by meaningful reasons.”).
We conduct a merits-based review of the order based on the explanation that
is given by the trial court. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746,
749 (Tex. 2013) (orig. proceeding); In re Whataburger Rests. LP, 429 S.W.3d 597,
598 (Tex. 2014) (orig. proceeding). If the record does not support the trial court’s
rationale, mandamus will issue. See Toyota, 407 S.W.3d at 749; Whataburger, 429
S.W.3d at 598.
Mandamus is warranted when the trial court clearly abused its discretion, and
the relator does not have an adequate remedy by appeal. In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). “[T]here is no adequate
remedy by appeal when a district court issues an erroneous new-trial order.”
Rudolph, 2023 WL 4035804, at *3 n.5. As a result, the only question in this
proceeding is whether the trial court’s new-trial order was an abuse of discretion.
Id.; see In re Bent, 487 S.W.3d 170, 178 (Tex. 2016) (orig. proceeding). A trial court
does not abuse its discretion so long as its stated reason for granting a new trial is
legally appropriate and specific enough to indicate that the trial court derived its
reasons from the particular facts and circumstances of the case at hand.
Whataburger, 429 S.W.3d at 598.
When a party challenges the factual sufficiency of a finding on which it has
the burden of proof, it must show that the decision is so against the great weight and
preponderance of the evidence as to be manifestly unjust, “shock the conscience, ‘or
clearly demonstrate[] bias.’” Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019)
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(quoting Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)).
When a party challenges the factual sufficiency of a finding on which it did not have
the burden of proof at trial, it must demonstrate that the evidence in support of the
finding is so weak as to be clearly wrong and unjust. Patel v. Ambassador
Drycleaning Co., 86 S.W.3d 304, 307 (Tex. App.—Eastland 2002, no pet.).
In either scenario, we consider and weigh all of the evidence in a neutral light,
keeping in mind that the jury acts as the sole judge of the weight and credibility of
the testimony. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (courts
must consider and weigh all evidence); see TEX. R. CIV. P. 226a (III) (mandating
instruction to jurors that they are the “sole judges of the credibility of the witnesses
and the weight to give their testimony”); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d
27, 28 (Tex. 1993) (quoting the instruction in Rule 226a (III) in the context of a
factual sufficiency challenge); Humphrey v. Am. Motorists Ins. Co., 102 S.W.3d 811,
814 (Tex. App.—Eastland 2003, pet. denied). In other words, the trial court should
not substitute its judgment for that of the jury. Windrum, 581 S.W.3d at 781; see
Rudolph, 2023 WL 4035804, at *4 (“No level of the judiciary has the authority to
repudiate a determination, predicated on the presence of probative evidence, made
by a properly constituted and instructed jury in response to a properly submitted
question.”); Jaffe, 867 S.W.2d at 28 (“[A] court of appeals may not set aside such a
finding merely because the judges believe that they would have reached a different
and more reasonable result had they been jurors.”).
TxDOT’s Negligence
The trial court determined that the condition of the roadway at the time of the
incident would be treated as a “special defect” under section 101.022 of the Civil
Practice and Remedies Code. As such, the duty of care that was owed by TxDOT
under these circumstances is the same duty of care that a private landowner owes to
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its invitees. Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009); Tex. Dep’t
of Transp. v. Lopez, 436 S.W.3d 95, 102 (Tex. App.—Eastland 2014, pet. denied).
That is, TxDOT must use ordinary care to protect drivers and their passengers from
a dangerous condition of which it is or reasonably should be aware. Beynon, 283
S.W.3d at 331; Lopez, 436 S.W.3d at 102. TxDOT is liable for negligence if it failed
to reduce or eliminate the risk, and the condition was a proximate cause of the
injuries in question. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex. 1998)
We conclude that the jury’s decision was supported by factually sufficient
evidence with respect to at least three elements of Patterson and Cumpton’s claim
for negligence and that the trial court abused its discretion when it determined that
the jury’s answer of “no” was against the great weight and preponderance of the
evidence. See Windrum, 581 S.W.3d at 781.
A. Unreasonable Risk of Harm
Patterson and Cumpton were tasked with proving that the condition of the
roadway created an unreasonable risk of harm. Beynon, 283 S.W.3d at 331. In
support of their contention that the roadway was unreasonably dangerous, Patterson
and Cumpton argued that the erosion on the roadway created a substantial edge drop-
off along the right side of the curve and that it also narrowed the roadway to an
unreasonable degree.
With respect to the drop-off, Trooper White testified that, at one point, the
depth of the drop-off was about five and one-half or six inches. David Steitle, a
professional engineer, testified that the condition of the road was “a needless danger
to the public” and that he found the drop-off effect of the eroded area to be
dangerous, in that “once [drivers] go off that edge . . . you’re down in that hole.”
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Daniel Richardson, the Director of Operations for the Abilene area for
TxDOT, testified that, under TxDOT guidelines, an edge drop-off condition of three
inches or less is considered to be “tolerable.” However, he added that TxDOT is
also concerned with a second condition—a “slope” condition. The slope condition
is a description of the tilt or angle of the vehicle to either the right or the left once it
has dropped off the edge. Richardson indicated that a slope condition should
maintain a forty-five-degree angle or less.
Richardson indicated that the photos that allegedly reflected a five-and-a-half
to six-inch drop-off condition were instead measuring a slope condition because the
measurement was taken several inches outside of the edge drop-off point. He added
that it was difficult to determine exactly how far from the edge the photographs were
taken, although he estimated that it was six to twelve inches.
Justin Tabor is a sergeant for the Texas Department of Public Safety. He
created a scale diagram of the roadway and accident scene. Sergeant Tabor testified
that the total width of the roadway at the location of the erosion is 18.98 feet. He
also testified that the width of Patterson’s lane at its narrowest point is 8.32 feet.
TxDOT expert Bill Nalle indicated that the width of Patterson’s vehicle was less
than six feet, leaving approximately two feet of clearance through the eroded section
of the curve.
The employees of TxDOT and DPS generally agreed that the eroded section
of the highway needed repair. However, opinions varied as to whether the roadway
was unreasonably dangerous. Trooper White stated that the erosion would “[n]ot
necessarily” cause issues for drivers, although in his deposition he had indicated that,
while trying to get back on the road “it was going to cause any vehicle a problem.”
Steitle testified that—based on the reduced width of the lane—the road was
dangerous. On the other hand, Casey McGee, a TxDOT employee and professional
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engineer said that the condition did not pose an unreasonable danger. Likewise,
Nalle indicated that there was plenty of clearance for Patterson to negotiate the road.
He also indicated that approximately a half-million vehicles went through this curve
during the five years preceding the incident and that only two drivers (including
Patterson) failed to successfully navigate the curve. This suggested to him that most
drivers could safely traverse the curve.
In its order granting a new trial, the trial court concluded that the jury’s
decision was against the great weight and preponderance of the evidence based on
the testimony that there was a significant edge drop-off, the testimony concerning
the width of the lanes, and the opinions of several witnesses that the erosion
constituted an unreasonably dangerous condition. However, the trial court also
disregarded the evidence showing that thousands of motorists can and have readily
traversed the curve without incident, as well as the conflicting opinion testimony
that the condition was not unreasonably dangerous. In so doing, the trial court
abused its discretion by failing to account for all of the evidence in the record. See
Pool, 715 S.W.2d at 635.
Additionally, while the trial court acknowledges that there was a dispute over
whether the measurements of the drop-offs were correct, it dismisses Richardson’s
critique of the DPS measurements because the “Defendant’s own employees used
the same method of measurement.” The trial court’s assessment of Richardson’s
testimony may reflect a rational conclusion. However, it is not the only conclusion
that could be drawn from such testimony, nor is it the conclusion that was drawn by
the jury. By rejecting the testimony of Richardson regarding the manner in which
edge drop-offs should be measured, the trial court improperly substituted its
evaluation of Richardson’s credibility for that of the jury. See Windrum, 581 S.W.3d
at 781; Jaffe, 867 S.W.2d at 28.
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B. TxDOT’s Knowledge of the Condition
In support of their argument that TxDOT knew or reasonably should have
known that the roadway was unreasonably dangerous, Cumpton and Patterson
pursued two lines of argument.
First, Cumpton and Patterson introduced evidence that TxDOT crews
regularly inspected the roadway in question. Steitle testified that TxDOT will
normally inspect all roadways once a month. McGee likewise stated that a once-a-
month inspection is recommended by TxDOT, although it is not required. There
was also evidence that a crew was working on a repair near the site of the accident
approximately two weeks earlier, although there was no direct indication that they
noticed the condition of the roadway.
Regardless of when any inspections were made, it was not clear how the
erosion had developed over time, nor was there direct testimony about the road’s
condition the last time it was seen or inspected by TxDOT. For example, McGee
testified that roads can “blow up” in as little as one day. For that reason, he could
not say that the road had been in the same condition for longer than a month.
Richardson likewise stated that deteriorated edges can develop “in a matter of hours
to days to months to years.”
Cumpton and Patterson also sought to show that TxDOT was made aware of
deterioration in the roadway following a separate accident that occurred
approximately one year earlier on April 7, 2016. On that date, Johnathin Kratz lost
control of his 2005 Chevrolet Malibu while navigating the same curve. According
to Kratz and Hanna Colley, who was a passenger in the vehicle, the car encountered
deterioration in the road, causing Kratz’s tire to “pop.” Colley described the
roadway as “being ate out.” She also stated that the accident happened because
“[t]he pavement was gone,” adding that Kratz “would have been on the road if [the
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pavement] would have been there.” After hitting the deteriorated roadway, the
vehicle went into a slide, hitting a culvert, and flipping over before landing on its
wheels.
There were no serious injuries in the 2016 incident. However, the incident
was reported to DPS, and Trooper Brian Waggoner was dispatched to the scene.
Sergeant Charles Wheeler, who was a DPS supervisor at the time, also went to the
scene. Both of them observed the deteriorated condition of the roadway and
determined that it was the cause of the wreck. After inspecting the scene, Sergeant
Wheeler left a voicemail for Jeffrey, who was the TxDOT maintenance supervisor
for Jones County, letting him know about the problem. However, Sergeant Wheeler
never followed up with Jeffrey, and Jeffrey testified that he never received a
complaint about the roadway near the accident scene.
The trial court’s order granting a new trial acknowledged that the record
included contradictory evidence on the issue of TxDOT’s actual or constructive
knowledge. Among other things, it recognized the evidence that Jeffrey never
received Sergeant Wheeler’s voicemail, as well as TxDOT’s argument that regular
inspections might not have revealed the specific deficiency at issue. However, the
trial court dismissed such evidence, indicating that it “lacked any serious
credibility.” In so doing, the trial court again substituted its judgment for that of the
jury.
C. Proximate Cause
Patterson and Cumpton sought to prove the element of proximate cause based
on the opinion testimony of Trooper White, although his opinion on the subject was
not entirely clear. On direct examination, Trooper White indicated that he believed
the road condition “had some cause” in the crash. However, on cross-examination,
Trooper White stated that he could never make a determination of the exact cause.
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This testimony was consistent with his report of the incident, which indicated that
the accident had occurred when Patterson overcorrected her steering for an
“undetermined reason.”
Sergeant Tabor also testified that he believed Patterson left the road before
she lost control of the vehicle. However, he could not identify the exact location
where her tires went off the road, and his testimony on the subject was more limited
than Trooper White.
None of the witnesses provided a first-hand account of how the accident
occurred, including Patterson, whose recollection was limited. Patterson testified
that, just before the accident, she had noticed headlights approaching from the
opposite direction. She stated that she then heard a “crunch” sound and that the next
thing she remembers is a person named Cody “shaking [her] awake” following the
collision.
Patterson’s testimony reflected only one of multiple accounts that she had
given since the accident. Trooper White interviewed Patterson on several occasions
following the incident. During those interviews, her explanation of events leading
to the accident included the following: (1) that a person ran out on the road in front
of her, (2) that an animal ran out on the road in front of her, (3) that a car had pulled
out in front of her, and (4) that she was struck by a vehicle passing in the opposite
direction. Although these accounts varied, Trooper White couldn’t recall if
Patterson ever stated during these interviews that the crash occurred because she
“ran off the edge of the road.”
Based on his investigation of the accident, Trooper White managed to
eliminate all of the explanations that were given by Patterson, except for the
possibility of an animal running into the road. He found an animal trail near the
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scene of the incident and stated that he could therefore not rule out the possibility
that an animal had run out into the road.
Nalle concurred with Trooper White’s conclusion that the accident happened
after Patterson overcorrected her steering. He added that any number of things could
cause a driver to oversteer, including an animal, a pedestrian, or an oncoming
vehicle. Nalle also testified that, in “run-off cases,” it is typical for yaw marks to
appear on the pavement “at a sharp angle right from the edge of the road” which is
“not what we have in this case.”
In its order granting a new trial, the trial court’s assessment on the element of
proximate cause is limited to passing references to the opinions of Trooper White
and Sergeant Tabor. In so doing, the trial court again disregards important evidence
on which the jury could have based its decision.
Because the trial court’s assessment of TxDOT’s negligence on the elements
described above disregarded important evidence and substituted its judgment for that
of the jury, the trial court abused its discretion when it found that the jury’s answer
of “no” on the issue of TxDOT’s negligence was against the great weight and
preponderance of the evidence.
Patterson’s Negligence
We also conclude that, because the evidence supporting the jury’s verdict as
to Patterson’s negligence was not so weak as to be clearly wrong and unjust, the trial
court abused its discretion in granting a new trial on that basis. TxDOT sought to
establish Patterson’s negligence by demonstrating that she was speeding. TxDOT
also argued that, even if Patterson’s wheels left the road as a result of the erosion,
Patterson was negligent in failing to slow her vehicle before returning to the road.
On the issue of Patterson’s speed, counsel for TxDOT cross-examined her as
follows:
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Q. At the time of the crash how fast were you traveling?
A. I am not exactly positive. I had my cruise set.
Q. Okay. Do you recall making a deposition in this case?
A. Yes, sir.
Q. I’m going to bring your deposition.
....
Q. Ms. Patterson, have you read that?
A. Yes, sir.
Q. And does that refresh your recollection?
A. A little bit, yes, sir.
Q. How fast were you traveling?
A. It says on here 73, 74.
Q. 73 or 74 miles per hour?
A. Yes, sir.
Q. And you had your cruise control set at that speed?
A. Yes, sir.
The trial court’s order concludes that, while Patterson “acknowledged” her
deposition statement, she “did not testify that she was traveling [seventy-three to
seventy-four miles-per-hour] in her trial testimony.” The order then suggests that,
because TxDOT did not offer Patterson’s deposition into the record, there was no
testimony from Patterson regarding her speed. In so ruling, the trial court appears
to assume that TxDOT was attempting to impeach Patterson based on a prior
inconsistent statement. See Fultz v. First Nat. Bank in Graham, 388 S.W.2d 405,
408 (Tex. 1965) (“prior inconsistent statements are usable only for impeachment
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purposes and are not substantive evidence of the facts stated”).2 However, in this
instance, Patterson’s deposition was not used as a tool for impeachment. Instead, it
was used as a device to refresh her recollection. 3 See, e.g., U. S. Fire Ins. Co. v.
Skatell, 596 S.W.2d 166, 170 (Tex. App.—Texarkana 1980, writ ref’d n.r.e.) (prior
statement used to refresh recollection of witness). After Patterson reviewed her
deposition, there was no longer a need for her to be impeached. Instead, she testified
directly that her cruise control was set at seventy-three or seventy-four miles per
hour
Nalle also testified as to the speed of Patterson’s vehicle. He indicated that,
based on the nature of the impact and the length of the yaw marks prior to hitting the
tree, he believes that Patterson was traveling between eighty-two and ninety-one
miles per hour. He added, however, that he doubts it was as high as ninety-one, and
that he thought her speed was more likely in the mid-eighties.
The trial court’s order acknowledged Nalle’s opinion testimony regarding
Patterson’s speed. However, it concluded that Nalle lacked credibility because,
unlike Trooper White, he was not present at the accident scene and because he
anticipated that the facts suggested a high-speed accident before he performed his
calculations. In so doing, the trial court once again disregarded the jury’s role as the
sole judges of the weight and credibility of the evidence.
The order granting a new trial also failed to account for a trial exhibit that
contains an excerpt from the Texas Drivers Handbook. The exhibit indicated that,
when a vehicle has run off the road, the driver should not “swing back into the
We do not comment on whether the holding in Fultz is applicable when the document used for
2
impeachment is an oral deposition that could be independently read into the record.
3
We note that, at the time of its ruling, the trial court did not have the benefit of the reporter’s
record, and that its order was based on the trial judge’s recollection of the testimony.
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pavement.” Instead, the driver should gradually reduce speed and then—after
checking for traffic—“carefully drive back onto the pavement.”
The jury could have properly determined that Patterson was negligent based
on the evidence of her speed, including her own admission. See Barnett v. Collins,
280 S.W.2d 639, 640 (Tex. App.—Waco 1955, no writ) (evidence that plaintiff was
driving above the speed limit supported finding that he was negligent in striking
defendant’s vehicle). Furthermore, if the jury believed that Patterson’s vehicle left
the roadway as a result of the erosion, it could also have determined that she was
negligent in failing to slow her vehicle so that she could regain control before
returning to the road. As such, the evidence supporting the jury’s verdict as to
Patterson’s negligence was not so weak as to be clearly wrong and unjust, and the
trial court abused its discretion in granting a new trial on that basis. See Patel, 86
S.W.3d at 307.
This Court’s Ruling
We conditionally grant TxDOT’s petition for writ of mandamus and direct
the trial court to vacate its order granting a new trial. Mandamus will issue only if
Judge Hagler fails to act by September 11, 2023.
JOHN M. BAILEY
CHIEF JUSTICE
August 23, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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