Driver should expect 2″ dip in roadways says Fort Worth Court of Appeals

Richard Brumfield v. Texas Department of Transportation, 02-13-00175-CV (Tex. App. – Fort Worth, May 29, 2014)

This is an appeal from the granting of TxDOT’s plea to the jurisdiction arising from a motorcycle accident where the Plaintiff alleges he crashed due to TxDOT’s “milling out” of the roadway. The Fort Worth Court of Appeals affirmed the dismissal.

TxDOT milled out—or removed—the surface layer of a road on June 22 and 23 and completed the overlay—or packing of asphaltic material into the milled area—on July 6 and 7.  In between the mill out and overlay, Brumfield drove his motorcycle onto the roadway, lost control and crashed. He sued for special and premise defects. TxDOT filed a plea to the jurisdiction which the trial court granted and Brumfield appealed.

After going through the evidence presented in the plea, the court determined the evidence was uncontested the mill out was approximately two inches deep. Such depth does not constitute a special defect. While Brumfield argued a fact question existed as to the actual depth, no evidence to counter the two inch depth was presented. The fact TxDOT had called the mill out an “excavation” (a type of special defect) is immaterial as it is the legal definition which governs, not the “term is uttered in the colloquial sense.”  As a premise defect, no evidence existed TxDOT had actual knowledge the condition was “unreasonably dangerous.” The court determined Brumfield, as an ordinary user of the roadway should expect minor changes in the roadway like a two inch dip.

If you would like to read this opinion click here. Justice Dauphinot, Justice Gardner, and Justice Meier.  Memorandum Opinion by Justice Meier. The attorneys listed for TxDOT are Lisa Marie McClain   and Ronald E. Garner. The attorneys listed for Brumfield are Rosalyn R. Tippett and Amy Witherite.