County employee negligence not necessary for liability under premise defect case
Eugene Eldridge and Raymond Perry v. Brazoria County, 01-13-00314-CV (Tex. Ap. – Houston [1st Dist.], March 27, 2014).
This is a premise liability case where Eldridge and Perry were involved in an automobile accident on a county-owned road. The trial court granted the County’s plea to the jurisdiction but the Houston Court of Appeals reversed and remanded for trial.
The Plaintiffs plead that a County bridge had been torn out to be rebuilt. The County posted warning signs, but they were blown away on a specific date due to a severe storm. The County was notified of the missing signs and put up temporary barricades (but no signs). Three days later the Plaintiffs were driving on the road, saw the barricades only immediately before colliding with them, went over the ledge and into the stream. The County asserted an independent contractor had been hired by TxDOT to complete the bridge project and the funding agreement with TxDOT noted the contractor and TxDOT were responsible for the bridge reconstruction. Essentially, the County asserted the bridge was under the care, custody, and legal control of someone who was not an employee of Brazoria County. The trial court granted the Plea and Plaintiffs appealed.
The Houston Court of Appeals noted that under §101.0215 of the Texas Civil Practice and Remedies Code (Texas Tort Claims Act), subsection 1 (dealing with negligence of employees using motor driven equipment) is the only subsection requiring the acts be performed by an employee. Subsection 2 simply notes an entity may be liable for the use or condition of tangible or real property. In other words, liability in a premise defect case is not dependent upon the actions of a governmental employee. Here, Plaintiffs claim that their injuries were caused by a missing bridge, which they allege is a premise defect and a special defect. So the trial court has jurisdiction to hear this case. The court also noted in a footnote that their decision is not be interpreted as a holding the Plaintiffs should prevail or that the County cannot raise future jurisdictional challenges.
If you would like to read this opinion click here. Panel: Justice Jennings, Justice Higley, and Justice Sharp. Opinion by Justice Higley. The attorney listed for the County is Raethella Jones. The attorney listed for Perry and Eldridge is Savannah Robinson