Texas Department of Transportation v. Paul Kirk, 11-15-00105-CV (Tex. App. – Eastland, February 11, 2016).
Kirk sued TxDOT after he lost consciousness while driving and hit a guardrail. Kirk alleged that the guardrail end terminal that he hit was an “ET-Plus” design. When he hit the rail, part of it entered the vehicle cabin and injured him. TxDOT filed a plea to the jurisdiction which was denied. TXDOT appealed.
While Kirk made numerous allegations against the other defendants (mainly for design and manufacturing) he only alleged TxDOT negligently selected, installed, and maintained the guardrail. Kirk’s pleading reveals that Kirk did not plead a cause of action for premises defects or special defects. The design, placement, and upgrading of guardrails involve an exercise of discretionary powers, and the State is immune from claims in relation to those types of activities. As a result, the plea should have been granted.
If you would like to read this opinion click here. Panel Chief Justice Wright, Justice Willson, and Justice Bailey. Opinion given by Chief Justice Wright. The attorney for the Appellant is David B. Strain. The attorneys for the Appellee are Ryan A. Todd and Brian C. Steward.