Austin Court of Appeals holds vehicle barrier into parking lot was not a traffic control device; therefore plaintiff injured by tripping on barrier must proceed under premise defect theory

Texas Facilities Commission v. Courtland Speer, 03-17-00244-CV (Tex. App. – Austin, August 31, 2018).

This is a Texas Tort Claims Act (“TTCA”) trip and fall case where the Austin Court of Appeals reversed the denial of the Commission’s plea to the jurisdiction.

The Commission manages State-of-Texas-owned properties that include a surface parking lot, designated as “Lot 27.” Lot 27 was constructed with vehicle access points that included a short driveway near its northwestern corner that crosses an adjacent sidewalk.  A vehicle barrier consisting of two concrete posts with a cable suspended between the posts was constructed across the driveway to address pedestrian/vehicle problems at that point. Speers alleged, at night, he tripped over the cable and was injured. He brought suit against the Commission, asserting the cable, over time, had drooped lower than designed due to a partially uprooted post and it had lost its reflectors.  The Commission filed a plea to the jurisdiction, which was denied. The Commission appealed.

Section 101.021 of the TTCA holds immunity is waived for a premise defect.  However, other TTCA provisions modify the scope and effect of the waivers.  The Commission asserts §101.022 states that a property owner must have actual notice of a dangerous condition in order to attribute liability as a premise defect.  Speers asserts, under §101.022(b) and §101.060 that a heightened standard applies for traffic control devices.  Speers asserts the cable and posts are traffic control functions, therefore a heightened standard applies to the property owner.  The court, putting the sections into practical context, read through the various TTCA sections. It held the net effect of the provisions is that the TTCA waives immunity with respect to a premises-defect claim founded on an unreasonably dangerous condition arising from “the absence, condition, or malfunction of a traffic or road sign, signal, or warning device” – but only in instances where the governmental unit had actual or constructive notice of the “absence, condition, or malfunction” and failed to correct it within a “reasonable time” thereafter. But such a claim is not subject to the licensee standard generally imposed by §101.022(a). The court then analyzed whether the cable was a “traffic control” sign, signal or warning device. Such devices are those used in connection with hazards normally connected with the use of the roadway.  Taking a detailed analysis, the court held such devices are distinguishable from special defect types of situations which carried the higher standard of care. The cable also does not direct normal users of the roadway in the traditional sense. Speers incorrectly believes §101.060 is a standalone provision, which it is not. Section 101.060 presumes a premise defect waiver under §101.021 and modifies that waiver.  Trip-and-fall cases are traditionally treated as premise defect claims, despite plaintiffs attempting creative pleadings to impose a higher standard. This is a premise defect case and Speers failed to establish actual notice of the dangerous condition to the Commission. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, Justice Pemberton and Justice Goodwin.  Opinion by Justice Pemberton. The docket page with attorney information can be found here.