Denton County v. Beynon, No. 08-0016 (Tex. May 1, 2009)(Willett)(TTCA Tort Claims Act,
governmental immunity, premises liability, special defect, (next to the) road hazard, flood gate arm)
In this premise-liability case, we decide whether a seventeen-foot floodgate arm
located approximately three feet off a two-lane rural roadway is a “special defect”
under the Texas Tort Claims Act (TTCA). We hold the floodgate arm does not
meet the TTCA’s narrow definition of a special defect. Accordingly, we reverse
the court of appeals’ judgment and dismiss the case.
* * *
Fact patterns obviously vary from case to case, but we are confident in holding
that the complained-of condition in today’s case—a floodgate arm located in a
grassy area alongside a rural county road—does not constitute a special defect
as a matter of law.
* * *
Because the floodgate arm was not a special defect, we grant the petition for
review and without hearing oral argument, reverse the court of appeals’
judgment and dismiss the case.
DENTON COUNTY, TEXAS v. DIANNE BEYNON AND ROGER BEYNON, INDIVIDUALLY, ET AL.; from
Denton County; 2nd district (02-07-00066-CV, 242 SW3d 169, 11-29-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and dismisses the case.
Justice Willett delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Brister, Justice Green, and Justice Johnson joined. [link to pdf version here]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina
View Electronic Briefs in this case.
Denton County, Texas v. Beynon (Tex. 2009)
Justice Willett delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright,
Justice Brister, Justice Green, and Justice Johnson joined.
Justice O’Neill filed a dissenting opinion, in which Chief Justice Jefferson and Justice
In this premise-liability case, we decide whether a seventeen-foot floodgate arm located
approximately three feet off a two-lane rural roadway is a “special defect” under the Texas Tort
Claims Act (TTCA). We hold the floodgate arm does not meet the TTCA’s narrow definition of
a special defect. Accordingly, we reverse the court of appeals’ judgment and dismiss the case.
Rhiannon Beynon, a minor, was a backseat passenger in a car traveling at night along Old
Alton Road—an unlit, undivided two-lane roadway in Denton County. When driver Mark Hilz
noticed an oncoming vehicle approaching in the middle of the road with its bright lights on, he
moved his car to the far right side of the road, which had a steep pavement edge drop-off. His
right-side tires then left the asphalt, dropping “around eight inches” off the edge and into some
loose gravel and grass. The car briefly climbed back onto the road, but Hilz had lost control,
and the car slid sideways into the grass where it was punctured by a seventeen-foot floodgate
arm owned and maintained by Denton County.
The metal floodgate arm was unsecured and improperly pointed toward oncoming traffic,
with the tip of the arm about three feet from the edge of the roadway. The floodgate arm
pierced the driver’s side door and then entered the backseat area where it severely injured
Rhiannon Beynon’s leg before passing through the floorboard beneath her seat. Diane and
Roger Beynon, individually and as Rhiannon’s next friend, sued Denton County on premise-
defect and special-defect theories of liability.
The trial court granted Denton County’s plea to the jurisdiction on the premise-defect claim but
not on the special-defect claim, prompting Denton County to challenge the latter ruling via
interlocutory appeal. The court of appeals affirmed the trial court’s judgment, holding the
floodgate arm to be “a condition that an ordinary user of the roadway would find unexpected
and unusually dangerous.” Because the court of appeals’ decision conflicts with our
precedent as described below, we have jurisdiction to decide whether the County’s plea
should have been granted on the special-defect claim.
The TTCA does not define “special defect” but likens it to “excavations or obstructions” that
exist “on” the roadway surface. The existence of a special defect is a question of law that we
review de novo. Where a special defect exists, the State owes the same duty to warn as a
private landowner owes to an invitee, one that requires the State “to use ordinary care to
protect an invitee from a dangerous condition of which the owner is or reasonably should be
This Court has never squarely confronted whether a hazard located off the road can (or can
never) constitute a special defect, though we did note in Payne that some courts of appeals
have held certain off-road conditions to be special defects. However, as Payne clarified, “[w]
hether on a road or near one,” conditions can be special defects like excavations or
obstructions “only if they pose a threat to the ordinary users of a particular roadway.” More
specifically, a court cannot “classify as ‘special’ a defect that is not like an excavation or
obstruction on a roadway.”
The floodgate arm that injured Rhiannon Beynon is not of the same kind or class as an
excavation or obstruction, nor did it pose a threat to “ordinary users” in the manner that an
excavation or obstruction blocking the road does. It thus falls outside the TTCA’s narrow
special-defect class as a matter of law.
The Beynons contend the floodgate arm is an obstruction “[b]y definition and by its very nature”
because “[i]ts sole intended purpose is to obstruct vehicular traffic.” This would be true had the
arm been set in the roadway in a closed position to block traffic, but here it was in a resting
position roughly three feet off the roadway, albeit unsecured and facing the wrong direction.
Even still, the arm did not “pose a threat to the ordinary users of [Old Alton Road],” or
prevent ordinary users from traveling on the road (as opposed to skidding off the road). Our
cases rest on the objective expectations of an “ordinary user,” and such a driver would not be
expected to careen uncontrollably off the paved roadway and into the adjoining grass, as Hilz
admitted when he stated that the “normal course of travel for [Old Alton Road] would be the
In any case, the arm was neither the condition that forced Hilz’s car off the road initially nor the
condition that caused the car to skid sideways and crash into the floodgate arm. The record is
clear that Hilz completely lost control of the vehicle when he tried to navigate what he called a
“fairly steep drop” along the road’s edge and reenter the pavement. He testified that prior to
the impact, he “didn’t have any control of the car,” that the car “was simply sliding sideways at
a 45-degree angle” toward a clump of trees, and that the car came to rest in the trees after
striking the floodgate arm.
The dissent stresses that few off-road conditions would qualify as special defects but “the
particular circumstances presented in this case” qualify because the floodgate arm was
unexpected and posed an unusual danger to ordinary travelers. First, the TTCA speaks of
“special defects such as excavations or obstructions” that impede travel on the roadway. This
condition was not of the same kind or class as those cited in the TTCA. Second, the TTCA
does not posit an alternative basis for special-defect liability when a condition, while not an
excavation or obstruction, is out of the ordinary. We understand the dissent’s sentiments
but do not believe they track the statute or afford much bright-line guidance, particularly in light
of our focus on “ordinary users” and our requirement that immunity waivers be clear and
The injuries sustained by Rhiannon Beynon are unquestionably tragic; however, it is the
province of the Legislature, not the courts, to prescribe the parameters of premise- and
special-defect claims. The trade-offs inherent in governmental immunity are a uniquely
legislative matter, and the Legislature has specifically limited special defects to conditions
“such as excavations or obstructions on highways, roads, or streets.” Accordingly, we
decline to expand the statutory definition beyond its terms.
Because the floodgate arm was not a special defect, we grant the petition for review and
without hearing oral argument, reverse the court of appeals’ judgment and dismiss the
Don R. Willett
OPINION DELIVERED: May 1, 2009
 It was the normal practice of Denton County to secure the floodgate arm with a lock and chain and
point it away from oncoming traffic. Denton County does not dispute that the floodgate arm was
unsecured and facing the wrong direction. Rather, it contends that even in this position, the floodgate
arm was not a special defect as a matter of law.
 See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
 242 S.W.3d 169, 175.
 Tex. Gov’t Code §§ 22.001(a)(2), 22.225(c).
 Tex. Civ. Prac. & Rem. Code § 101.022(b).
 State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam).
 State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).
 Id. at 238-39 n.3.
 Id. at 238 n.3.
 Id. A 1999 per curiam opinion from this Court appeared to add a second element to the definition,
stating “[a] special defect must be a condition of the same kind or class as an excavation or roadway
obstruction and present ‘an unexpected and unusual danger to ordinary users of roadways.’” State v.
Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam) (citation omitted) (emphasis added). The
TTCA itself says nothing about “unexpected and unusual danger.” That phrase first appeared in 1992
in Payne. In that case, we observed that excavations and obstructions “present an unexpected and
unusual danger to ordinary users of roadways.” Payne, 838 S.W.2d at 238. The TTCA mandates no
second prong, nor does Payne engraft one; the statutory test is simply whether the condition is of the
same class as an excavation or obstruction. We used “unexpected and unusual danger” in Payne to
describe the class, not to redefine it. Nor does the case upon which Payne rests, County of Harris v.
Eaton, 573 S.W.2d 177, 179 (Tex. 1978), mandate that the condition, besides being like an excavation
or obstruction, also pose an unexpected and unusual danger to ordinary roadway users.
 Payne, 838 S.W.2d at 239 n.3 (disapproving of cases “when the defect did not present a hazard to
the ordinary users of a roadway”).
 A per curiam decision from 1993, the year after Payne was decided, suggests that a special defect
can be any condition that poses an unexpected and unusual danger, even if it is not an excavation or
obstruction. State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per
curiam) (“Special defects are excavations or obstructions, or other conditions which ‘present an
unexpected and unusual danger to ordinary users or roadways.’”) (quoting Payne’s description of how
excavations and obstructions pose such hazards) (citations omitted). But waiving immunity for “other
conditions,” however uncommon, departs from the text’s explicit focus on “excavations or obstructions.”
 Besides the fact that a condition’s unexpectedness is not a stand-alone basis for bringing a
special-defect claim, such unexpectedness seems to matter little when a driver, as in this case, cannot
steer the vehicle and is skidding uncontrollably. The dissent’s approach also invites several follow-up
questions—for example, who decides unexpectedness; is the test objective or subjective? Also, if this
unsecured floodgate arm were positioned eight feet from the road’s edge rather than three, would that
extra sixty inches immunize the county? See City of Dallas v. Giraldo, 262 S.W.3d 864, 871-72 (Tex.
App.—Dallas 2008, no pet.) (parked bulldozer eight to ten feet from the roadway edge is not a special
defect). Or if the floodgate arm had been unsecured and pointed like this for years without incident—
would that longstandingness cancel out any unexpectedness? We suspect the dissent would say it
depends, that each case is different. True, each case has unique facts, but our decisions should aim
for predictability that applies uniformly beyond the case at hand.
 See Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (“we must look to the terms of
the [TTCA] to determine the scope of its waiver”); Giraldo, 262 S.W.3d at 869 (“The Legislature has
provided a limited waiver of immunity for . . . special defect claims under the Texas Tort Claims Act.”)
 Tex. Civ. Prac. & Rem. Code § 101.022(b).
 The dissent asserts that our notion of an “‘ordinary user’ limits special defects to those that appear
only within the lines between the shoulders of the road.” __ S.W.3d __. While the TTCA by its terms
speaks of “excavations or obstructions on highways, roads, or streets,” Tex. Civ. Prac. & Rem. Code §
101.022(b) (emphasis added), none of our previous cases grapples squarely with whether an off-road
hazard can constitute a special defect, and we need not decide that issue today. Fact patterns
obviously vary from case to case, but we are confident in holding that the complained-of condition in
today’s case—a floodgate arm located in a grassy area alongside a rural county road—does not
constitute a special defect as a matter of law.
 Tex. R. App. P. 59.1.