A motorcyclist and his passenger were injured when they collided head-on with another vehicle that had crossed into their lane. The collision occurred in a construction area that required moving lanes of traffic to make way for the construction. TXDOT prepared a traffic control plan that called for the placement of concrete barriers between the opposing travel lanes, but the contractor determined that there was not sufficient room for the barriers. Instead, the contractor painted yellow stripes and placed buttons demarcating the lanes. TXDOT did not approve the change in writing, and the parties disputed whether TXDOT approved the change at all. Plaintiffs sued TXDOT for premises liability. TXDOT filed a combined plea to the jurisdiction and motion for summary judgment. The trial court denied the plea and the motion. TXDOT filed an interlocutory appeal to the Corpus Christ Court of Appeals, which reversed the trial court and dismissed the case. Plaintiffs sought review.
In an opinion by Justice Huddle, SCOTX affirmed. Plaintiffs urged the Court to find that TXDOT, though it has discretion to design roadways that shields the agency from immunity, was precluded from altering a traffic control plan without a “written, engineer-sealed plan” in accordance with the Engineering Practice Act (Chapter 1001, Occupations Code). Rather than deal with that “novel question,” however, the Court rested its ruling on plaintiffs’ failure to raise a fact issue regarding the essential elements of their premises-defect claim. Consequently, plaintiffs did not overcome the sovereign immunity bar in the Texas Tort Claims Act.
The premises defect in question involved the stripes and buttons on the road. Plaintiffs claimed that they constituted a road condition that created an unreasonable risk of harm, meaning that “there is a ‘sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event is likely to happen’” (citations omitted). As we saw in the recent decision in United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 803 (Tex. 2022), the Court considers a number of factors in determining whether a condition is unreasonably dangerous, including “whether the relevant condition was clearly marked, its size, whether it had previously caused injuries or generated complaints, whether it substantially differed from conditions in the same class of objects, and whether it was naturally occurring.” Although usually a question of fact, “the Court has held that certain innocuous or commonplace hazards are not unreasonably dangerous as a matter of law, particularly when they have not caused other injuries or been the subject of complaints” (e.g., the parking lot divot in United Supermarkets).
Here the Court found that plaintiffs failed to raise a fact issue as to an essential element of their claim: “the existence of an unreasonably dangerous condition.” Plaintiffs alleged that the unreasonably dangerous condition consisted of the poorly marked roadway lane, the chaotic nature of the construction zone, and the oncoming vehicle itself, which created a road hazard or obstruction. The Court rejected this characterization of the condition, agreeing with TXDOT that the underlying condition complained of was the stripes and buttons. Plaintiffs did not allege that the stripes and buttons themselves were defective (the buttons were TXDOT approved), no complaints had been previously made about them in the several months between their installation and plaintiffs’ accident, and, perhaps most importantly, the “use of painted stripes and buttons to separate travel lanes on roadways is ordinary, commonplace, and standard engineering practice.” Plaintiffs presented no evidence that the stripes and buttons were more dangerous here than on other roadways, and the fact that the highway contractor deviated from TXDOT’s traffic control plan in itself did not make the condition unreasonably dangerous.
By issuing an opinion in this case, SCOTX did not break any new ground regarding premises liability cases, but the Court did decide the case on the premises issue, not whether TXDOT’s discretionary design decisions included the discretion to orally modify a traffic control plan, as the court of appeals did. That issue will have to wait for another day, but if the evidence isn’t strong enough to get past the summary judgment stage on the premises claim, it may never come up again in any event.
