Texas Supreme Court Declines to Waive Sovereign Immunity in Premises Defect Case

Houston, Texas (March 30, 2023) – The Supreme Court of Texas recently upheld a Thirteenth Court of Appeals’ judgment finding that the plaintiffs in a premises defect case brought against the Texas Department of Transportation (TxDOT) had failed to raise a fact issue regarding the creation of a dangerous condition and, consequently, failed to establish waiver of the defendant’s sovereign immunity. Daniel K. Christ and Nicole D. Salinas v. Tex. DOT, et al., No. 21-0728, 66 Tex. Sup. Ct. J. 306, 2023 Tex. LEXIS 128, at *1 (Feb 10, 2023).

Background

Plaintiffs Daniel Christ and his wife, Nicole Salinas (the Christs), were riding their motorcycle through a construction zone when they collided with a vehicle that crossed into their lane. TxDOT’s traffic control plan for the related construction project called for the placement of concrete barriers between opposing travel lanes; however, once construction on the project began, TxDOT’s contractor determined there was not enough space for the concrete barriers and revised the traffic control plan to substitute yellow stripes and buttons for the concrete barriers. TxDOT never approved the revised traffic control plan in writing; however, TxDOT’s contractor contended TxDOT orally approved of the change. The Christs sued the driver of the other vehicle, TxDOT, and TxDOT’s contractor.

Trial & Appeal

TxDOT and its contractor filed a plea to the jurisdiction and a no-evidence motion for summary judgment. TxDOT argued: (1) it retained sovereign immunity under the Texas Tort Claims Act (TTCA) because decisions relating to roadway design are discretionary; and (2) the Christs’ failed to present evidence creating a fact issue on their premises defect claim. The trial court denied TxDOT’s plea to the jurisdiction and motion for summary judgment, and TxDOT filed an interlocutory appeal.

The Thirteenth Court of Appeals reversed the trial court’s rulings and dismissed for want of jurisdiction. The appellate court rejected the Christs’ contention that a special defect existed, which imposed on TxDOT a duty to warn. The court of appeals further held that TxDOT retained its immunity from suit because the TTCA’s protection for TxDOT’s discretionary design decisions included the discretion to orally modify the traffic control plan. The Christs subsequently petitioned the Texas Supreme Court for review.

Analysis

The Christs contended TxDOT willingly allowed its traffic control plan to be deviated from and such deviation made the area where the collision occurred unreasonably dangerous. The Texas Supreme Court was unmoved by the Christs’ description of what constituted the unreasonably dangerous condition, in which they argued the other driver’s vehicle, lighting on the roadway, and the purported chaotic nature of the site contributed to the roadway’s unreasonably dangerous condition. The court clarified that the other vehicle could not be the dangerous condition giving rise to their claim.

Regarding the substitution of stripes and buttons for concrete barriers, the state’s high court noted the Christs failed to claim or provide evidence that the stripes and buttons were defective, and further failed to provide evidence that any other accident or injury occurred at the site or that TxDOT received any complaints about the stripes and buttons prior to the Christs’ accident. As noted by the court, in the absence of complaints or reports of injuries, ordinary/commonplace hazards are not unreasonably dangerous conditions. The court further noted that the use of painted stripes and buttons to separate travel lanes on roadways is ordinary, commonplace, and standard engineering practice, and the Christs presented no evidence that their use was any more dangerous than their use on other roads. While the court admitted that yellow stripes and buttons were easier to cross over than concrete barriers, it reiterated its prior holding in Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006) that a condition is not unreasonably dangerous simply because it’s not foolproof. Further, the court noted that while any alleged lack of adequate warnings in the area could relate to a claim that TxDOT failed to exercise reasonable care, that could not, itself, be evidence that the roadway’s condition was unreasonably dangerous.

Significantly, the Texas Supreme Court explained that the mere fact that the yellow stripes and buttons deviated from TxDOT’s traffic control plan does not, by itself, create a fact issue as to whether the resulting condition is unreasonably dangerous – even if concrete barriers may be considered a better method for demarcating lanes – such a contention is not evidence that the use of stripes and buttons created an unreasonably dangerous condition. Because the Christs failed to create a fact issue regarding the existence of an unreasonably dangerous condition (an essential element of their premises defect claim), they did not establish waiver of sovereign immunity under the TTCA.

Takeaway

The Texas Supreme Court’s holding in this case confirms that a governmental unit retains its sovereign immunity under Section 101.056 of the TTCA where the performance or non-performance of the act complained of – in this case, orally modifying a traffic control plan – is based on the governmental unit’s discretion.

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Author:

Starr M. Forster, Partner

Editor:

Joelle Nelson, Partner