The Texas Supreme Court recently decided City of Denton v. Paper, No. 11-0596. Rachel Paper sued the City of Denton after breaking several of her teeth when she crashed on her bicycle. The case involved a “sunken area in the roadway.” Was the sunken area:
- A hole about as deep as a mechanical pencil (5.5 inches) located near the center of the right lane which a bicylist could not avoid without crossing into the lane for oncoming traffic?
- A hole only 2 or so inches deep that could be avoided without driving into oncoming traffic?
Which was it? And who has the power to decide?
The trial court and court of appeals both felt the hole was more like hole (a) described above. In fact, the court of appeals specifically determined that Ms. Paper “could not have navigated around the sunken area and subsequent sharp edge without crossing into the oncoming lane of traffic.”
Under the Texas Constitution, the Texas Supreme Court is “not invested with the power to determine facts” and is instead limited to resolving “questions of law.”* Nonetheless, in this case, the Supreme Court decided—despite testimony that the hole was almost as deep as a mechanical pencil—that it would “assume” the “depth of the sunken area varied from two inches to a few inches more at its deepest point” and then decided that, “contrary” to the “observation” by the court of appeals, it felt the photographs “indicate … ample room existed for a bicycle to navigate around this hole without having to enter the opposing traffic lane.”
Having thus determined the physical nature of the hole in a manner contrary to that found by the courts below, the Supreme Court then held the hole was not a “special defect” under the Texas Tort Claims Act.
The Tort Claims Act generally limits the duty of a governmental unit regarding a premises defect to the duty owed to a licensee on private property. When the premises-liability claim involves a “special defect,” however, the government’s duty is not so limited.
The Tort Claims Act does not define the term “special defects” except to state that they include “excavations or obstructions on highways, roads, or streets.” Texas courts have construed special defects to include other defects of the same kind or class as the two expressly mentioned in the statute. Whether a premises defect is special or ordinary is “usually a question of law.”
In such case, the central inquiry is whether the condition is of the same kind or falls within the same class as an “excavation or obstruction.” In determining whether a particular condition is like an excavation or obstruction and therefore a special defect, court look at such things as:
- the size of the condition
- whether the condition unexpectedly and physically impairs an ordinary user’s ability to travel on the road
- whether the condition presents some unusual quality apart from the ordinary course of events
- whether the condition presents an unexpected and unusual danger
The Texas Supreme Court decided the hole which caused Ms. Paper’s crash and injuries was not like an “excavation or obstruction” but rather one of the many “irregularities in the roadway [which] unfortunately are to be expected” and do not typically “present an unusual danger to the traveler.”
When there is no “special defect,” the Tort Claims Act provides that, in an ordinary premises liability claim, the governmental unit owes only the duty “that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” A licensor of real property owes a duty not to injure the licensee by willful or wanton acts or omissions or gross negligence. When the governmental unit has actual knowledge of a dangerous condition and the licensee does not, the government must either warn the licensee or make the condition safe.
Here, the Supreme Court found that Paper presented no evidence that the City actually knew a dangerous condition existed after completion of its work on Paper’s street the week before her accident. Thus, Paper’s case was dismissed.
The full opinion in the case is available online at the website of the Texas Supreme Court.