City of Dallas v. Reed, No. 07-0469 (per curiam) Decided: May 16, 2008

In this interlocutory appeal, the Texas Supreme Court rejected the argument that a two-inch difference in elevation between two lanes on a city road was a “special defect” that imposed a heightened duty on the city under the Texas Tort Claims Act. In a per curiam decision, the Court reversed and dismissed the action. Kenneth Reed was in a motorcycle accident and brought suit against the city, alleging that “the sharp unevenness between the traffic lanes constitutes either a special defect or a premises defect under the Texas Tort Claims Act.”

The court of appeals concluded that it was a “special defect” and thus found the city was not immune from suit.

This Two-Inch Drop Not a Special Defect

The Court noted that whether a condition is a “special defect” is a question of law for the Court, citing State Department of Highways & Public Transportation v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam). If a “special defect” is found, the landowner owes the same heightened duty (to warn and to use reasonable steps to reduce the risk) that it would owe to any invitee. Perhaps more importantly in this case, if the petition alleges a “special defect,” it can fall within the waiver of the city’s immunity from suit in the Tort Claims Act.

What distinguishes a “special defect”?

Special defects are defects of the same kind or class as “excavations or obstructions on highways, roads, or streets,” Eaton, 573 S.W.2d at 179, that present an “unexpected and unusual danger to ordinary users of roadways,” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam).

In Reed, the Court holds that this condition — a two-inch drop-off between two lanes of a road — was not “distinguished … by some unusual quality outside the ordinary course of events.” Instead, the Court observes, “Ordinary drivers, in the normal course of driving, should expect these slight variations on the road caused by normal deterioration.” Accordingly, the condition is not within the narrow class of “special defects” that would waive the state’s immunity. The Court thus reversed the basis relied upon by the court of appeals.

Premises Liability Not Shown on This Record

The court of appeals did not reach the plaintiff’s alternate ground, which contended that the petition alleged “premises liability” and thus fit within a different waiver in the Tort Claims Act.

The Texas Supreme Court held that the record failed to show the kind of “actual knowledge” of the defect that would have been required. The street inspector’s report gave the street a “C” rating, which was judged to be in fair condition. It was only after the accident — during a deposition, actually — that the inspector acknowledged that the street probably deserved a lower score. The Court held that this was not enough because knowledge of the danger (not merely knowledge of the condition) must exist at the time of the accident, not in hindsight. The Court for that reason rejected the plaintiff’s alternate theory of premises liability.

Having rejected both theories that were advanced for evading the city’s immunity from suit, the Court held that the city was immune, reversed the court of appeals’s judgment, and dismissed the action.