IN THE SUPREME COURT OF TEXAS
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No. 07-0743
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Texas Department of
Transportation, Petitioner,
v.
Jimmy Don York, Individually and on Behalf of the
Estate of Rebecca York, Deceased and James R. Bodiford,
Jr., Individually and on Behalf of the Estate of Rebecca York, Tonya Bodiford, and Shirley Fowler, Respondents
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On Petition for Review from the
Court of Appeals for the Tenth District of Texas
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PER CURIAM
We grant petitioner’s motion for
rehearing, withdraw our per curiam
opinion issued December 5, 2008, and substitute the following in its place.
In
this case, we decide whether loose gravel on a road is a “special defect” under
Texas Civil Practices and Remedies Code section 101.022(b). We hold that
loose gravel is not a special defect as a matter of law, and therefore, reverse
the court of appeals’ judgment and dismiss the case.
On October 29, 2003, Rebecca York
lost control of her vehicle while crossing a patch of loose gravel on Farm-to-Market Road
979 in Robertson County. She crossed the center line and
struck an oncoming truck. She died at the scene. The day before the accident, a
Texas Department of Transportation (TxDOT) crew
applied a spot seal coat on the portion of highway where the accident occurred.
A spot seal application consists of three steps: (1) liquid asphalt is sprayed
onto the road surface; (2) a layer of gravel (or aggregate) is spread on top of
the asphalt; and (3) the gravel is rolled into the asphalt. The asphalt then
hardens and holds the gravel in place to form a new road surface. By the time York reached the serviced
portion of the road the next morning, however, the road surface was covered
with a layer of loose gravel approximately one-half to three-quarters inches
deep. The cause of the presence of the excess loose gravel is disputed.
York’s surviving spouse filed a wrongful
death suit against TxDOT. TxDOT asserted
sovereign immunity against suit and liability, except to the extent waived
under the Tort Claims Act. After the presentation of arguments and evidence,
the trial court submitted a jury charge with a special defect instruction,
rather than a premise defect instruction. The jury returned a verdict in York’s favor, awarding
damages of $1,033,440. Pursuant to statutory limitations, the verdict was
reduced to $250,000. TxDOT moved for judgment
notwithstanding the verdict or a new trial, which the trial court denied. TxDOT then appealed the judgment to the court of appeals,
arguing that loose gravel is not a special defect, but rather, a premise
defect. The court of appeals disagreed, holding that the loose gravel is a
special defect and affirming the trial court’s judgment. 234
S.W.3d at 218. We reverse.
The State of Texas is protected from suits for damages by
sovereign immunity, unless waived by statute. Gen. Servs.
Comm’n v.
Little-Tex Insulation Co., Inc., 39 S.W.3d 591,
594 (Tex. 2001); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d
636, 638 (Tex.
1999) (per curiam). Legislative
consent to waive sovereign immunity by statute must be by “clear and
unambiguous language,” TEX.
GOV’T CODE § 311.034, and suit can then be brought
“only in the manner indicated by that consent.” Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 694 (Tex. 2003)
(citing Hosner v. De Young, 1 Tex. 764, 769 (1847)).
“[W]hen construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining
immunity.” Wichita Falls
State Hosp., 106 S.W.3d at 697.
The
Texas Legislature has waived sovereign immunity for personal injury claims
arising from a premise defect. Tex. Civ.
Prac. & Rem. Code §
101.021. Former section 101.022 of the Texas Civil
Practices and Remedies Code applied
different duties of care to a suit depending on whether the condition was a
premise defect or a special defect:
(a) If a claim
arises from a premise defect, the governmental unit owes to the claimant only
the duty that a private person owes to a licensee on private property, unless
the claimant pays for the use of the premises.
(b) The limitation
of duty in this section does not apply to the duty to warn of special defects
such as excavations or obstructions on highways, roads, or streets or to the
duty to warn of the absence, condition, or malfunction of traffic signs,
signals, or warning devices as is required by Section 101.060.
Act of May 17, 1985, 69th Leg.,
R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3303
(amended 2005) (current version at Tex. Civ. Prac. & Rem. Code § 101.022)
(hereinafter § 101.022). If
a claim involves a premise defect under section (a), a licensee standard
applies. Tex. Civ. Prac. & Rem. Code § 101.022(a); see
also State Dep’t of Highways & Pub.
Transp. v.
Payne, 838 S.W.2d 235, 237 (Tex. 1992). Under a
licensee standard, a plaintiff must prove that the governmental unit had actual
knowledge of a condition that created an unreasonable risk of harm, and also
that the licensee did not have actual knowledge of that same condition. Payne,
838 S.W.2d at 237. But if a claim involves a special
defect under section (b), a more lenient invitee standard applies. Id.
Under an invitee standard, a plaintiff need only prove that the
governmental unit should have known of a condition that created an unreasonable
risk of harm. Id.; see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (“Absent a finding that the State knew of the
dangerous condition prior to the accident, it is not liable to plaintiffs
unless the condition was a special defect.”). Whether a
condition is a premise defect or special defect is a question of law, which we
review de novo. Payne, 838 S.W.2d at 238.
The Civil Practices and Remedies
Code does not define “special defect,” but does give guidance by likening
special defects to “excavations or obstructions.” See Tex. Civ. Prac. & Rem.
Code § 101.022(b). Thus,
“[u]nder the ejusdem generis rule, we are to construe ‘special defect’ to
include those defects of the same kind or class as [excavations or
obstructions].” County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978). While
these specific examples “are not exclusive and do not exhaust the class,” the
central inquiry is whether the condition is of the same kind or falls within
the same class as an excavation or obstruction. Id.; City of
Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997) (per curiam).
A special defect, then, cannot be a condition that falls outside of this class.
See Payne, 838 S.W.2d at 238–39 n.3 (“[T]o the extent [courts] classify
as ‘special’ a defect that is not like an excavation or obstruction on a
roadway, we disapprove of them.”); Eaton, 573 S.W.2d at 179 (“The
statutes provide an understanding of the kinds of dangerous conditions against
which the [L]egislature intended to protect the
public. They are expressed as such things ‘as excavations or roadway
obstructions.’”). We have recognized some characteristics of this class that
should be considered. See Eaton, 573 S.W.2d at 179 (“the size of the
dangerous condition”); see also City of Dallas v. Reed, 258 S.W.3d 620,
622 (Tex. 2008) (per curiam) (“some unusual quality
outside the ordinary course of events”); State v. Rodriguez, 985 S.W.2d
83, 85 (Tex. 1999) (per curiam) (something that
“unexpectedly and physically impair[s] a car’s ability to travel on the road”);
Payne, 838 S.W.2d at 238 (“an unexpected and unusual danger to ordinary
users of roadways”).
A
layer of loose gravel on a road does not share the characteristics we have
articulated in any of the above cases, and, thus, does not fit within the same class
as an obstruction or excavation. Loose gravel does not form a hole in the road
or physically block the road like an obstruction or excavation. See Eaton,
573 S.W.2d at 178–80 (holding that a large hole six to ten inches deep and four
to nine feet wide covering ninety percent of the road’s width was a special
defect, and suggesting an avalanche clogging a mountain road would likewise be
a special defect); see also State v. Williams, 940 S.W.2d 583, 585 (Tex.
1996) (deferring to the court of appeals’ finding that a street sign lying in
middle of a highway was a special defect). Likewise, less than an inch
of loose gravel does not “physically impair a car’s ability to travel on the
road” in the manner that an excavated road or obstruction blocking the road
does, Rodriguez, 985 S.W.2d at 85, nor does it present the same type of
“unexpected and unusual danger to ordinary users of roadways” as does this
class. Payne, 838 S.W.2d at 238. And while
loose gravel could fall within this class if, for example, a sizeable mound of
gravel were left on the roadway, a layer of loose gravel falls in the same
class as ordinary premise defects—those conditions that do not reach the level
of an obstruction or excavation. See, e.g., Reed, 258 S.W.3d at
622 (holding that a two-inch difference in elevation between traffic lanes on a
roadway was not a special defect); Rodriguez, 985 S.W.2d at 86 (holding
that a ninety-degree turn in a detour from a road construction project was not
a special defect); Kitchen, 867 S.W.2d at 786 (holding that an
icy bridge was not a special defect); Payne, 838 S.W.2d at 239 (holding
that a culvert beneath a roadway was not a special defect).
York also cannot recover under an ordinary
premises defect claim. York
prepared, and the trial court submitted, a jury charge with an invitee standard
of care—one associated with a special defect. TxDOT
objected to this charge and requested that an ordinary premises defect charge
be given instead. See Tex. R.
Civ. P. 274. As a result, York failed to
obtain jury findings on two necessary elements of an ordinary premises defect
claim: that TxDOT had actual knowledge of the loose
gravel and that York
lacked actual knowledge of the loose gravel. Payne, 838
S.W.2d at 241. Because TxDOT objected to the
lack of these elements in the jury charge, and because York
failed to obtain a finding on these issues, York cannot recover under an ordinary
premises defect claim. Id.
(citing Tex. R. Civ. P. 279) (holding that
knowledge element could not be deemed in favor of plaintiff where defendant
objected to the omission of that element from the jury charge). Therefore, the
verdict does not support a judgment in York’s
favor. Id.
We reverse the court of appeals’ judgment and dismiss the case.
OPINION
DELIVERED: May 22, 2009