City did not have actual notice of a dangerous condition involving excavation explosion

City of Pearland v. Juan Contreras 01-15-00345-CV (Tex. App. – Houston [1st Dist.], January 28, 2016).

This is a premise defect/Texas Tort Claims Act (“TTCA”) case involving actual knowledge of a dangerous defect in which the First District Court of Appeals reversed the denial of a plea to the jurisdiction.

In early 2010, the Texas Department of Transportation (“TxDOT”) expanded SH 35 requiring the City to move its utilities along the highway. At one point the excavation discovered old gasoline tanks from a destroyed gas station. TxDOT hired an environmental consulting firm, to prepare a report and management plan for the site. The City received a copy of the report, and modified its new water line to further protect from contamination.  One year later, workers were installing a traffic light pole at the same location as the contaminants when welders inside the hole accidentally ignited fumes. Contreras was burned. After the accident, TCEQ investigated and noted one possible explanation is methane gas accumulated in nearby storm sewer drains. Contreras sued RMJ Miller, the owner of nearby underground storage tanks, for negligence. Contreras then amended his petition to add negligence claims against the City.  The City filed a plea to the jurisdiction which was denied.

The City first argued that while it owns the sewer lines within the utility easement, the storm sewers are TxDOT lines. Further, the City noted that environmental report it received expressly held “exposure to contaminated soil or groundwater within the TxDOT [right of way] should not pose a threat to construction workers since none of the detected contaminant concentrations exceeded the applicable standards for construction worker exposure.”  As a result, the City asserts the report is not actual notice of a dangerous condition, even if it did control the sewers. The Court of Appeals first held a fact question exists as to the City’s control of the sewers. However, that does not end the inquiry. Any liability against the City must be related to a premises defect associated with the storm sewers themselves. The court held because the alleged buildup of flammable gas within an existing storm sewer is not a roadway excavation or obstruction, the alleged premises defect is not a special defect. Therefore, Contreras must establish the City had actual knowledge of the danger. There is no evidence in the record the City knew that its storm sewers contained a flammable gas (methane) or even anything that would cause gas to build up.  The soil contaminants are a different issue than methane gas build up. As a result, the plea was improperly denied.

If you would like to read this opinion click here. Chief Justice Radack, Justice Bland and Justice Huddle. Memorandum Opinion by Justice Bland.  The attorney listed for the City is Patricia Lecompte Hayden.  The attorney listed for RMJ Miller is Matthew B. Edquist.  The attorneys listed for Contreras are Christopher Bradshaw-Hull and Timothy A. Hootman.