07-0743 Tx. = Dept. of Transp. v. York

IN THE SUPREME COURT OF TEXAS

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No. 07-0743

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Texas=20 Department of Transportation, Petitioner,

Jimmy=20 Don York,=20 Individually and on Behalf of the Estate of Rebecca York, Deceased and = James R.=20 Bodiford, Jr., Individually and on Behalf of = the=20 Estate of Rebecca York, Tonya Bodiford, and = Shirley=20 Fowler, Respondents

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On Petition for Review from=20 the

Court of Appeals for the Tenth = District of=20 Texas

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PER = CURIAM

=20 In this case, we decide whether loose gravel on a road is a = =93special=20 defect=94 under Texas Civil Practices and Remedies Code section = 101.022(b).=20 We hold that loose gravel is not a special defect as a matter of law, = and=20 therefore, reverse the court of appeals=92 judgment and remand to the = trial=20 court.

=20 On October 29, 2003, Rebecca York lost control of her vehicle = while=20 crossing a patch of loose gravel on Farm-to-Market Road 979 in = Robertson County. She crossed the center = line and=20 struck an oncoming truck. She died at the scene. The day before the = accident, a=20 Texas Department of Transportation (TxDOT) = crew had=20 applied a spot seal coat on the portion of highway where the accident = occurred.=20 A spot seal application consists of three steps: (1) liquid asphalt is = sprayed=20 onto the road surface; (2) a layer of gravel (or aggregate) is spread on = top of=20 the asphalt; and (3) the gravel is rolled into the asphalt. The asphalt = then=20 hardens to hold the gravel in place and form a new road surface. By the = time=20 York = reached the=20 serviced patch of road the next morning, however, the road surface was = covered=20 with a layer of loose gravel approximately one-half to three-quarters = inches=20 deep. The cause of the presence of the excess loose gravel is = disputed.

=20 York=92s=20 surviving spouse filed a wrongful death suit against TxDOT.[1] TxDOT asserted=20 sovereign immunity against suit and liability, except to the extent = waived under=20 the Tort Claims Act. After the presentation of arguments and evidence, = the trial=20 court submitted a jury charge with a special defect instruction, rather = than a=20 premise defect instruction. The jury returned a verdict in York=92s = favor, awarding=20 damages of $1,033,440. Pursuant to statutory limitations, the verdict = was=20 reduced to $250,000. TxDOT moved for = judgment=20 notwithstanding the verdict or a new trial, which the trial court = denied. TxDOT then appealed the judgment to the court of = appeals,=20 arguing that loose gravel is not a special defect, but rather, a premise = defect.=20 The court of appeals disagreed, holding that the loose gravel is a = special=20 defect and affirming the trial court=92s judgment. 234 S.W.3d at=20 218. We reverse.

=20 The State of Texas is protected from suits for = damages by=20 sovereign immunity, unless waived by statute. Gen. Servs. Comm=92n v. Little-Tex = Insulation Co.,=20 Inc., 39 S.W.3d 591, 594 (Tex. 2001); Tex. Dep=92t of Transp. v. Jones, 8 S.W.3d=20 636, 638 (Tex.=20 1999) (per curiam). Legislative consent to waive = sovereign=20 immunity by statute must be by =93clear and unambiguous language,=94 = TEX. GOV=92T CODE =A7 311.034, and = suit can=20 then be brought =93only in the manner indicated by that consent.=94 = Wichita Falls=20 State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003) (citing Hosner v. DeYoung, 1=20 Tex. 764, 769=20 (1847)). =93[W]hen construing a statute that purportedly waives = sovereign immunity, we generally resolve ambiguities by = retaining=20 immunity.=94 Wichita=20 Falls State Hosp., 106 S.W.3d at 697.

=20 The Texas Legislature has waived sovereign immunity for personal = injury=20 claims arising from a premise defect. Tex. Civ. Prac. & Rem.=20 Code =A7 = 101.021.=20 Former section 101.022 of the Texas Civil Practices and Remedies Code[2] applied different duties of = care to a=20 suit depending on whether the condition was a premise defect or a = special=20 defect:

(a) If a=20 claim arises from a premise defect, the governmental unit owes to the = claimant=20 only the duty that a private person owes to a licensee on private = property,=20 unless the claimant pays for the use of the premises.

(b) The=20 limitation of duty in this section does not apply to the duty to warn of = special=20 defects such as excavations or obstructions on highways, roads, or = streets or to=20 the duty to warn of the absence, condition, or malfunction of traffic = signs,=20 signals, or warning devices as is required by Section 101.060.

Act of May 17, 1985, = 69th Leg.,=20 R.S., ch. 959, 1985 Tex. Gen. Laws 3242, = 3303 (amended=20 2005) (current version at Tex. Civ. Prac. & Rem. Code =A7 = 101.022)=20 (hereinafter =A7 101.022). If=20 a claim involves a premise defect under section (a), a licensee standard = applies. Tex. Civ Prac. & Rem. Code =A7 = 101.022(a);=20 see also State Dep=92t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 = (Tex.=20 1992). Under a licensee standard, a = plaintiff must=20 prove the governmental unit had actual knowledge of a condition that = created an=20 unreasonable risk of harm, and also that the licensee did not have = actual=20 knowledge of that same condition. Payne, 838 = S.W.2d at=20 237. But if a claim involves a special defect under section (b), = a more=20 lenient invitee standard applies. = Tex. Civ. Prac. & Rem.=20 Code =A7 = 101.022(b).=20 Under an invitee standard, the plaintiff need only prove that the = governmental unit should have known of a condition that created an = unreasonable=20 risk of harm. Payne, 838 S.W.2d at 237; = see also=20 State Dep=92t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 = (Tex. 1993) = (per curiam)=20 (=93Absent a finding that the State knew of the dangerous condition = prior to the=20 accident, it is not liable to plaintiffs unless the condition was a = special=20 defect.=94). Whether a condition is a premise defect = or special=20 defect is a question of law, which we review de novo. = Payne, 838 S.W.2d at 238.

=20 The Civil Practices and Remedies Code does not define =93special = defect,=94=20 but does give guidance by likening special defects to =93excavations or=20 obstructions.=94 See Tex. Civ.=20 Prac. & Rem. Code =A7=20 101.022(b). Thus, =93[u]nder the=20 ejusdem generis = rule, we are=20 to construe =91special defect=92 to include those defects of the same = kind or class=20 as [excavations or obstructions].=94=20 County of=20 Harris v. Eaton, 573 = S.W.2d 177,=20 179 (Tex.=20 1978). While these specific examples =93are not exclusive and do = not=20 exhaust the class,=94 the central inquiry is whether the condition is of = the same=20 kind or falls within the same class as an excavation or obstruction.=20 Id.; City of Grapevine v. Roberts, 946 S.W.2d 841, 843 = (Tex. 1997) = (per=20 curiam). A special defect, then, cannot be a condition that falls = outside=20 of this class. See Payne, 838 S.W.2d at 238, n.3 (=93[T]o the = extent=20 [courts] classify as =91special=92 a defect that is not like an = excavation or=20 obstruction on a roadway, we disapprove of them.=94); Eaton, 573 = S.W.2d at=20 179 (=93The statutes provide an understanding of the kinds of dangerous = conditions=20 against which the [L]egislature intended to = protect=20 the public. They are expressed as such things =91as excavations or = roadway=20 obstructions.=92=94). We have recognized some characteristics of this = class that=20 should be considered. See Eaton, 573 S.W.2d at 179 (=93the size = of the=20 dangerous condition=94); see also City of Dallas v. Reed, 258 = S.W.3d 620,=20 622 (Tex. 2008) (per curiam) (=93some unusual quality outside the = ordinary course=20 of events=94); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) = (per=20 curiam) (something that =93unexpectedly and physically impair[s] a = car=92s ability=20 to travel on the road=94); Payne, 838 S.W.2d at 238 (=93an = unexpected and=20 unusual danger to ordinary users of roadways=94).

=20 A layer of loose gravel on a road does not share the = characteristics we=20 have articulated in any of the above cases, and, thus, does not fit = within the=20 same class as an obstruction or excavation. Loose gravel does not form a = hole in=20 the road or physically block the road like an obstruction or excavation. = See=20 Eaton, 573 S.W.2d at 178-80 (holding that a large hole six to ten = inches=20 deep and four to nine feet wide covering ninety percent of the road=92s = width was=20 a special defect, and suggesting an avalanche clogging a mountain road = would=20 likewise be a special defect); see also State v. Williams, 940 = S.W.2d=20 583, 585 (Tex. 1996) (deferring to the court of appeals=92s finding that a street sign lying in = middle of a=20 highway was a special defect). Likewise, less than an inch of = loose=20 gravel does not =93physically impair a car=92s ability to travel on the = road=94 in the=20 manner that an excavated road or obstruction blocking the road does,=20 Rodriguez, 985 S.W.2d at 85, nor does it present the same type of = =93unexpected and unusual danger to ordinary users of roadways=94 as = does this=20 class. Payne, 838 S.W.2d at 238. And = while loose=20 gravel could fall within this class if, for example, a sizeable mound of = gravel=20 were left on the roadway, a layer of loose gravel falls in the same = class as=20 ordinary premise defects=97those conditions that do not reach the level = of an=20 obstruction or excavation. See, e.g., Reed, 258 = S.W.3d at=20 622 (holding that a two-inch difference in elevation between traffic = lanes on a=20 roadway was not a special defect); Rodriguez, 985 S.W.2d at 86 = (holding=20 that a ninety-degree turn in a detour from a road construction project = was not a=20 special defect); Kitchen 867 S.W.2d at 786-87 (holding that an = icy bridge=20 was not a special defect); Payne, 838 S.W.2d at 239 (holding that = a=20 culvert beneath a roadway was not a special defect).

=20 The trial court applied the wrong duty of care in this case. The = jury=20 charge did not contain a premise defect instruction, so the jury did not = have an=20 opportunity to determine liability under that stricter licensee = standard. The=20 record reflects conflicting testimony as to whether TxDOT had actual knowledge of the loose gravel, = and whether=20 York = did not=20 have actual knowledge of it. Therefore, the question of whether TxDOT satisfied the licensee standard of care = should go to=20 the fact finder. See Tex. Dep=92t of Parks and Wildlife v. = Miranda, 133=20 S.W.3d 217, 226 (Tex. 2004) (=93[I]n some cases, disputed evidence of=20 jurisdictional facts that also implicate the merits of the case may = require=20 resolution by the finder of fact.=94); Keetch v.=20 Kroger Co., 845 S.W.2d 262, 266 (Tex. 1992) (=93Proof that the = premises owner=20 or occupier created a condition which poses an unreasonable risk of harm = may=20 constitute circumstantial evidence that the owner or occupier knew of = the=20 condition.=94). Because of this, we reverse the court of appeals=92 = judgment and=20 remand the case for a new trial applying the premise defect = standard.

OPINION=20 DELIVERED: December 5, 2008

^[1]=20 In his original petition, York=92s = surviving spouse=20 also included as defendants Robertson=20 County, the = driver of the=20 other vehicle, and the driver=92s employer, but later nonsuited them.

^[2]=20 The statute was amended in 2005 to include language dealing specifically = with=20 toll roads, which are not at issue in this case. See Tex. Civ. Prac. & Rem.=20 Code =A7 = 101.022. The=20 language is the same in all other respects. See id. Thus, our = holding=20 would be the same under the amended = statute.