A driver on the Texas A&M University Rellis campus missed a turn at a T-shaped intersection and drove his car into a ditch. He sued TAMU under the Texas Tort Claims Act, alleging that his injuries resulted from the University’s failure to place lighting, barricades, and warning signs at the intersection. TAMU filed a jurisdictional plea asserting governmental immunity, which the TTCA does not waive for discretionary decisions, including the decision not to place a traffic sign, signal, or warning device, and that plaintiff failed to show the existence of a special defect. The trial court denied the plea. The Amarillo Court of Appeals reversed. Plaintiff sought review.
These are the basic facts in Kristopher Lloyd Fraley v. Texas A&M University System (No. 21-0784; delivered March 24, 2023)). In an opinion by Justice Bland, SCOTX affirmed the court of appeals on the basis that immunity was not waived under the statute. The TTCA waives immunity in ordinary premises-defect claims, in which the governmental entity owes the same duty as a private party to a licensee, and in special defects claims, such as those involving “excavations or obstructions on highways, roads, or streets,” in which the entity owes the same duty as a private landowner to an invitee. The statute, however, does not waive immunity for claims arising from “a governmental unit’s decision not to perform an act . . . if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.” § 101.056(2), CPRC. This exclusion extends specifically to an entity’s decision not “place a traffic or road sign, signal, or warning device if the failure is a result of a discretionary action of” the entity. § 101.060, CPRC. A governmental entity nevertheless owes a “duty to warn of special defects such as excavations or roadway obstructions.” Id.
Here the plaintiff failed to plead or show jurisdictional facts indicating a waiver of immunity. As to the “special defect” claims, the Court referred to its precedent holding that “a special defect must be ‘of the same kind or class’ as excavations or obstructions” and factors a court should consider, such as “the condition’s size, whether the condition unexpectedly impairs a vehicle’s ability to travel on the road, or whether it presents an unexpected and unusual danger to ordinary users of the roadway.” In this case, the existence of a ditch at the top of a T-intersection satisfied none of these conditions. Because such ditches are neither excavations nor obstructions on the road, ordinary drivers can avoid them merely by staying on the road. Justice Bland noted “that ordinary users of the roadway are expected to follow the normal course of travel” and “are not expected to travel beyond the surface of the roadway under the circumstances alleged” by plaintiff. The Court thus concluded that TAMU owed a duty to plaintiff as a licensee, and the TTCA’s “limitation to its waiver of governmental immunity for discretionary decisions about designs and signage applies.”
The Court went on to discuss the discretionary aspects of the design of the intersection, which TAMU had recently converted from a four-way stop to a T-intersection with a yield sign. It remained up to the University whether to place any signage or signals at the intersection, and its failure to do so was a discretionary act “within the well-recognized discretionary-function exception.” In response to plaintiff’s attempt to state a “negligent implementation” claim, the Court stated that “[n]egligent implementation is not a separate theory of liability under the Tort Claims Act. Instead, it is a means to avoid the Act’s discretionary function exception that would otherwise retain the governmental unit’s immunity from a premises defect claim.” The Court further rejected plaintiff’s request for “the opportunity to replead his case should additional discovery reveal facts demonstrating that the intersection’s construction and safety features did not conform to its design plans.” As plaintiff had already amended his pleadings three times and engaged in almost two years of extensive discovery, the Court found it highly improbable that yet another attempt would turn up anything new.
The Texas Tort Claims Act was initially enacted in 1985, so one might think that every question about its application should have been answered by now. But as we’ve noted many times, the work of statutory construction is never done, and, in that sense, statutes are simply not dead texts fixed in time but live animals that can do unpredictable things. We are fortunate to have a Texas Supreme Court that recognizes this and takes great care to construe statutes in a consistent manner over long periods of time. Only then can Texas businesses and taxpayer-funded governmental entities benefit from the settled expectations that arise from a conservative approach to the law.
