TxDoT v. Gutierrez, No. 07-1013  (Tex. 2009)(per curiam)
(loose gravel on the road not a special defect under TTCA unless there is a sizeable mound of it)
Gutierrez’s suit falls outside the Tort Claims Act’s limited immunity waiver for
premise-liability claims. Accordingly, we grant the petition for review and without
hearing oral argument, Tex. R. App. P. 59.1, reverse the court of appeals’ judgment
and dismiss the case.
from Jim Wells County; 4th district 04-06-00583-CV, 243 SW3d 127, 09-05-07)
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.
Per Curiam Opinion (
pdf version on court's web site)
TxDoT v. Gutierrez, No. 07-1013 (Tex. 2009) (per curiam)


This appeal poses the same question we answer in another case decided today,
Department of Transportation v. York, __ S.W.3d __ (Tex. 2009): whether loose gravel on a road
is a “special defect” under Texas Civil Practice and Remedies Code section 101.022(b).
Because the court of appeals’ decision is incompatible with York’s holding that loose gravel is not
a special defect as a matter of law, we reverse and dismiss the case for lack of subject-matter

The morning of December 5, 2003, Stephanie Gutierrez (Gutierrez) was commuting to work on
FM 624 in Jim Wells County. The previous night, the Texas Department of Transportation (TxDOT)
had repaired portions of FM 624, but some excess gravel remained until the afternoon of
December 5th.

Gutierrez passed a “Curve Ahead” sign with a speed advisory of 45 miles per hour. TxDOT had
also placed a “Loose Gravel” sign at the site. Gutierrez lost control on the gravel and pulled off the
road to inspect her car for damage. A short time later, while standing near her vehicle, Gutierrez
was struck by another driver that lost control on the same curve.

Gutierrez and her husband Ronnie Gutierrez sued TxDOT, asserting the loose gravel constituted a
special defect. At trial, Gutierrez did not contest the presence of the “Curve Ahead” sign and the
speed advisory. She initially disputed TxDOT’s claim of a “Loose Gravel” sign posted at the
scene, but just before closing arguments she stipulated to it. Given this stipulation, and after the
jury returned a verdict for Gutierrez, TxDOT filed a post-trial plea to the jurisdiction asserting
sovereign immunity, which was denied. TxDOT filed an interlocutory appeal,[1] but a divided court
of appeals held (1) the loose gravel constituted a special defect, and (2) the jury found TxDOT
failed to adequately warn of it. 243 S.W.3d 127, 130.

In general, the State of Texas retains sovereign immunity from suit, Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 3d 217, 224 (Tex. 2004), and can only be sued if the Legislature waives
immunity in “clear and unambiguous language,” Tex. Gov’t Code § 311.034. One such waiver is
Tort Claims Act, which permits premise-liability suits and establishes that the State owes a
claimant the same duty a private person owes a
licensee. Tex. Civ. Prac. & Rem. Code §
101.022(a). However, if the claim arises from a
special defect, then the State’s duty is judged
under an
invitee standard. Id. § 101.022(b).

The Tort Claims Act does not define “special defect” but likens it to “excavations or obstructions.”
Id. Thus, in York we stress that “the central inquiry is whether the condition is of the same kind or
falls within the same class as an excavation or obstruction.” __ S.W.3d at __. As we hold today in
York, loose gravel, unlike other conditions we have said are special defects, “does not form a hole
in the road or physically block the road like an obstruction or excavation,” id. at __, nor does it
“physically impair a car’s ability to travel on the road in the manner that an excavated road or
obstruction blocking the road does,” id. at __ (internal quotation and citation omitted). It thus falls
outside the special-defect class as a matter of law. Instead it “falls in the same class as ordinary
premise defects—those conditions that do not reach the level of an obstruction or excavation.” Id.
This case presents the same condition (loose gravel) due to the same re-paving procedure (a
spot seal), and we reach the same result: loose gravel is a premise defect, not a special defect.[2]

Gutierrez also cannot recover under an
ordinary premise-defect claim. The trial court submitted
to the jury only a special-defect charge, with an invitee standard of care, that Gutierrez had
prepared. The court overruled TxDOT’s objection that a premise-defect charge with a licensee
standard was the proper charge under the evidence, and refused TxDOT’s proffered premise-
defect charge that correctly set forth the elements of liability under that theory. To establish TxDOT’
s liability for an ordinary premise defect, Gutierrez was required to obtain findings that TxDOT had
actual knowledge of the dangerous condition and that she did not. State Dep’t of Highways
& Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).

Because TxDOT objected to the omission of these elements in the jury charge (elements on which
Gutierrez had the burden of proof), we cannot deem findings on the elements in her favor. Id. at
241; see also Tex. R. Civ. P. 279. The verdict thus does not support a judgment in Gutierrez’s
favor. Payne, 838 S.W.2d at 241.

Gutierrez’s suit falls outside the Tort Claims Act’s limited immunity waiver for premise-liability
claims. Accordingly, we grant the petition for review and without hearing oral argument, Tex. R.
App. P. 59.1, reverse the court of appeals’ judgment and dismiss the case.


[1] The appeal was interlocutory because the trial court granted a motion for new trial in favor of Ronnie
Gutierrez on his bystander claim, and made clear in its new trial order that the remaining portion of the
judgment in favor of Stephanie Gutierrez was interlocutory until the final adjudication of Ronnie’s claim.

[2] We clarify in York that “a sizeable mound of gravel”—such that it amounts to an obstruction—can be a
special defect. __ S.W.3d at __. However, nothing in the record suggests the gravel on FM 624 was “a
sizeable mound” of the same character as an obstruction.