13th Court of Appeals affirms take nothing judgment in favor of TxDOT for premise liability/flooding death case
Geoffrey Lucker v. Texas Department of Transportation 13-16-00380-CV( Tex.App—Corpus Christi, August 3, 2017)
This is a premise liability case where the 13th Court of Appeals affirmed the granting of jury verdict in favor of TxDOT
TxDOT received information water was likely to flood a number of roads in Lee County and dispatched employees to assist. Throughout the day, the aassistantmaintenance supervisor, Meinke, put out a number of signs at different locations. One sign was a large temporary “Watch For Water On Road” sign, which also displayed two flags on FM 1624 near a culvert referred to as the “bridge.” The sign was placed next to a smaller, permanent sign, with the same message. These signs were located about 2,500 feet from the bridge. Meinke testified that a car traveling at 60 miles per hour would reach the water in about thirty seconds after passing the two signs on that day. Because the water was rising rapidly, at 7:15 p.m. Meinke ordered that barricades and road closed signs be brought to both sides of the bridge after a visual inspection. However, these did not arrive until after the incident. Meinke left the site to warn nearby oil workers of the danger and rising water. Upon returning to the bridge a short time later, he viewed Sally Lucker’s vehicle floating in the water. She died. Lucker’s husband sued TxDOT and the case went to a jury trial. The jury returned a verdict for TxDOT and Lucker appealed.
Over the objection of Lucker, the trial court submitted to the jury a charge containing two questions concerning the emergency exception in the Texas Tort Claims Act. Essentially, the first question asked the jury if TxDOT was reacting to a flooding emergency and the second was whether the death was proximately caused by the conscious indifference or reckless disregard of the safety of others on the part. The jury answered in favor of TxDOT for these questions. The jury did fine TxDOT 51% responsible for the accident and Lucker 49% responsible. TxDOT moved for entry of a take nothing judgment which the trial court granted. The 13th Court of Appeals notes the language within the judgment clearly indicates the trial court considered not only the findings of the jury, but arguments of counsel and filings with the court. TxDOT submitted arguments regarding premise liability which were not substantiated with evidence during trial to which Lucker’s attorney did not respond. However, the trial court did not specify its grounds for granting the motion. The Court of Appeals specifically noted it could not tell if the trial court found the emergency exception to apply or if the trial court found that there was no evidence on one or more of the elements of Lucker’s premise liability claim. Because Lucker briefed only the emergency exception arguments and not the lack of evidence on premise defects, he waived such argument. As a result, the judgment of the trial court must be affirmed.
If you would like to read this opinion click here. The panel includes Justice Benavides, Justice Longoria, and Justice Hinojosa. Justice Longoria delivered the opinion of the court. The attorneys listed for Mr. Lucker are Chris Jackson and James Rodman. The attorneys listed for Texas Department Transportation are David B. Strain and Randall K. Hill.