First accident scene not a special defect which caused second accident says 11th Court of Appeals

Texas Department of Transportation v. Teresa Renee Abila Lopez et al., 11-13-00064-CV (Tex. App. —  Eastland, May 22, 2014).

This is an interlocutory appeal from the denial of a jurisdictional summary judgment in a Texas Tort Claims Act (“TTCA”) case involving a vehicle collision. The Eastland Court of Appeals affirmed in part, reversed in part, and remanded.

Lopez worked for a tow-truck company dispatched to an accident scene in a TxDOT construction zone. TxDOT crews placed cones and funneled traffic into an outside lane away from the accident and placed a TxDOT vehicle with flashing lights warning of the closing lane. During the scene cleanup, another driver, Walker, lost control of her vehicle and struck Lopez, killing him. The DPS investigation reporte noted Sibley (driver of first vehicle in the first accident scene) had hit a pothole and lost control.  Apparently, TxDOT crews filled the pothole but other aspects of the construction area, including a drop-off of several inches, may have contributed to Walker’s loss of control. Plaintiffs alleged TxDOT was negligent in how it implemented traffic control and warning devices and several premise defects. They also allege the pothole, a steep drop-off, and the first accident itself were special defects.

The 11th Court of Appeals first held the act regarding the design of the construction project and the use of traffic control and warning devices for both the project and the accident clean-up are discretionary actions retaining TxDOT’s immunity. The court then examined the special and premise defect claims holding the alleged pothole was, at best, a premise defect and no evidence of actual knowledge exists to waive immunity. The court also held the first accident scene was not a special defect and TxDOT had no duty to warn or make safe in connection with the wreck site. However, the court then held a fact question existed as to whether a drop-off was present and its depth, which are necessary to determine a special defect or premise defect standard (as well as causation). In short, the only claim that can go forward is the claim alleging a drop-off caused Walker to lose control.

If you would like to read this opinion click here. Panel: Chief Justice Wright, Justice Willson, and Justice Bailey. Memorandum opinion by Chief Justice Wright. The attorneys listed for TxDOT are Mark Dyer, Levon G. Hovnatanian, and George L. Lankford.  The attorneys listed for Lopez are Suzanne Bass and Burt L. Burnett.