Jeanette Hagelskaer v. Texas Department of Transportation 09-15-00279-CV (Tex. App. – Beaumont, April 21, 2016).
This is an appeal from the granting of TxDOT’s plea to the jurisdiction where the Beaumont Court of Appeals modified the judgment but affirmed the granting of the plea. This is a personal injury case where a bicyclist was in a TxDOT detour lane and was hit by oncoming traffic when TxDOT employees accidentally let both directions of traffic into the same lane.
TXDOT repaired the northbound shoulder of a two-lane roadway. In the course of its repairs, TXDOT closed the northbound lane of FM 1486, and allowed traffic on the road to alternate the use of the southbound lane. TXDOT stationed flaggers at each end of the project to control the use of the southbound lane who utilized radios to coordinate traffic. Hagelskaer, travelling south, approached the construction zone on her bicycle with a group of other cyclists. As the cyclists were passing through the construction zone, Hagelskaer managed to safely pass one northbound vehicle but she encountered a second, injuring her. Hagelskaer sued asserting, among other things, that TxDOT allowed both directions of traffic to share the same land and the equipment in the closed lane prevented the second vehicle from being able to safely pass her (essentially creating a bottleneck effect). The trial court granted TxDOT’s plea to the jurisdiction, which she appealed.
The court first held the Texas Tort Claims Act (“TTCA”) does not waiver immunity for the negligent handling of traffic flow. There was also no nexus between TxDOT’s “maintainer” equipment which was off to the side of the roadway and the accident. The evidence before the court demonstrated that Hagelskaer and the truck driver’s shared use of a single lane of traffic by accident caused Hagelskaer’s injuries, not the lanes of travel created by TxDOT’s equipment. The maintainer merely furnished the condition that made the accident possible. Hagelskaer never alleged that the maintainer being used in the northbound lane was being operated in a negligent manner. TXDOT’s equipment was in the closed lane, and did not protrude into the southbound lane being used by the traffic. Hagelskaer has also not shown that the Tort Claims Act contains a waiver for activity that is based on decisions involving a lane closure and decisions by government employees that allowed commuter traffic to share a single lane. Next, under a premise defect theory, Hagelskaer alleged TxDOT was aware of the danger it created and did not warn her the dangers present in her lane of travel. However, the court held such facts cannot be classified as a premise or special defect. The defect on which Hagelskaer premises her claim concerns the existence of equipment and vehicles on a lane of the road closed for construction which is merely a detour. Additionally, the existence of oncoming traffic in a single lane was not unexpected from Hagelskaer’s point of view. Further, even if the condition were a premise defect, TxDOT had no duty to warn her of a condition of which she was already aware (i.e. she avoided the first vehicle in the lane). TxDOT cross-appealed noting the dismissal should be with prejudice. After going through the pleading record, the court agreed Hagelskaer had an opportunity to replead and chose not to do so. As a result, the court should have granted the plea with prejudice.
If you would like to read this opinion click here. Chief Justice McKeithen, Justice Horton and Justice Johnson. Opinion by Justice Horton. The attorneys listed for TxDOT are Susan Desmarais Bonnen, Richard Mason and John Johnson. The attorney listed for Hagelskaer is Jonathan Bleyer.