County immune from accident due to gap in cattle guard on county road says San Antonio Court of Appeals

 

Joseph Gonzalez v. Bandera County, 04-16-00142-CV ( Tex. App— San Antonio, September 21, 2016)

This is an appeal from the granting of the County’s plea to the jurisdiction based on a single vehicle accident. The San Antonio Court of Appeals affirmed the granting of the plea.

Gonzalez was injured while operating his motorcycle and alleges that as he crossed a cattle guard, he “lost control of his motorcycle and violently crashed.” Bandera County was responsible for maintaining the cattle guard. Gonzalez alleged the cattle guard posed an unreasonably dangerous risk of harm because an “unreasonably dangerous drop” exists when transitioning from the paved road to the cattle guard. In addition, Gonzalez alleged “the metal bars of the cattle guard were not welded together correctly resulting in a gap of one to three inches wide with sharp edges being exposed.” Gonzalez sued. The County filed a plea to the jurisdiction which the trial court granted. Gonzalez appealed.

The court first held the conditioned alleged, even if true, is not a special defect. The Texas Supreme Court has held a two-inch drop-off is “not in the same kind or class as an excavation or obstruction,” noting “there is nothing unusually dangerous about a slight drop-off between traffic lanes in the roadway.”  Further, the court provided photos within the opinion of the “gaps” between metal bars and held they occurred only in the center of the guard and outside the normal path of traffic. As a result, the gaps do not constitute a special defect. As to the premise defect claims, the County established it did not have actual knowledge of any dangerous condition. The County presented affidavit testimony that no reports of problems with the guard were reported and no accidents involving the guard have ever occurred at that location. In addition, the fact that a cattle guard had been repaired on three dates in 2007, two dates in 2008, and two dates in 2012 is no evidence that Bandera County had actual knowledge there were gaps in the cattle guard on January 20, 2013, the day of Gonzalez’s accident. The possibility that a dangerous condition involving the cattle guards could develop over time is insufficient to show actual knowledge.  As a result, the plea was properly granted.

If you would like to read this opinion click here. The Panel includes Chief Justice Marion, Justice Martinez, and Justice Chapa. Justice Martinez delivered the opinion of the court. The attorneys listed for the  County are Robert Bass, Carah-Beth Bass. The attorney listed for the Plaintiff is Thomas J. Henry and Phillip Ripper.