Texas Case Law

MONTGOMERY COUNTY v. REED, 09-06-402 CV (Tex.App. [9th
Dist.] 12-28-2006) MONTGOMERY COUNTY PRECINCT 1, Appellant
v. NORMAN FRANK REED AND CASEY ALBINUS, Appellees. No.
09-06-402 CV. Court of Appeals of Texas, Ninth District,
Beaumont. December 28, 2006.

Appeal from the 9th District Court, Montgomery County,
Texas Trial Cause No. 02-10-06962CV.

Before GAULTNEY, KREGER and HORTON, J.J.

MEMORANDUM OPINION

DAVID GAULTNEY, Justice.

Norman Frank Reed and Casey Albinus sustained injuries when
their vehicle crossed through an intersection in Montgomery
County and hit a tree. Claiming a stop sign had been
removed, they sued “Montgomery County Precinct 1” for
negligence under the Tort Claims Act.[fn1] In this
interlocutory appeal, Montgomery County challenges the
trial court’s order denying the County’s no-evidence
summary judgment motion asserting immunity from suit. See
Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8)
(Vernon Supp. 2006).[fn2] Sovereign immunity from suit
defeats a trial court’s subject matter jurisdiction. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
225-26 (Tex. 2004). We reverse the trial court’s order and
dismiss the action for lack of subject matter jurisdiction.

Appellees were traveling at night on Forest Road 224 when
the roadway abruptly ended without warning. Appellees’
vehicle hit a tree. The police report indicated there was
no stop sign at the intersection at the time of the
accident. Appellees alleged the presence of loose gravel on
the road and Montgomery County’s failure to replace the
missing stop sign and post warning signs of the road’s end
proximately caused the accident.

The County argues the trial court erred in denying its
summary judgment motion because sovereign immunity bars
appellees’ cause of action. The County maintains there is
no evidence County employees removed the stop sign, and no
evidence that the stop sign was reported missing before the
accident occurred. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.060(a)(2),(3) (Vernon 2005). Appellees argue
sovereign immunity is waived, because the County either
removed the stop sign in question and failed to replace it,
or the County should have discovered the sign was missing.
Appellee Reed testified he had seen County trucks parked
“[m]aybe 50 yards” from the intersection around 3:00 p.m. on
the day of the accident. Appellees also argue loose gravel
on the roadway constituted a special defect, and the County
should have warned motorists of the defect.

Montgomery County’s immunity from suit is waived to the
extent “of liability created” by the Texas Tort Claims Act.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a)
(Vernon 2005). The Act waives Montgomery County’s immunity
for “personal injury and death so caused by a condition or
use of tangible personal or real property if the
governmental unit would, were it a private person, be liable
to the claimant according to Texas law.” Tex. Civ. Prac. &
Rem. Code Ann. § 101.021(2) (Vernon 2005). Section
101.060(a)(2) states that the Act does not apply to a claim
arising from “the absence, condition, or malfunction of a
traffic or road sign, signal, or warning device unless the
absence, condition, or malfunction is not corrected by the
responsible governmental unit within a reasonable time after
notice[.]” Section 101.060(a)(3) states the Act does not
apply to a claim arising from “the removal or destruction
of a traffic or road sign, signal, or warning device by a
third person unless the governmental unit fails to correct
the removal or destruction within a reasonable time after
actual notice[.]” Tex. Civ. Prac. & Rem. Code Ann. §
101.060(a)(3) (Vernon 2005).

George Widener, road foreman for the precinct, testified
the County was responsible for maintaining the
intersection. He testified to the earlier existence of the
stop sign at the intersection. The County placed limestone
base on Forest Road 224 a few days before the accident
occurred. During this time, the County was adding culverts
700 to 800 feet from the intersection where the stop sign
was missing. According to Widener, the addition of the
limestone base would not require removal of a stop sign. As
for the culvert work, he said it did not require removal of
the stop sign, because the culvert work was hundreds of feet
from the intersection. When presented with the hypothetical
that replacement of a culvert required temporary removal of
the sign, Widener stated the sign would be replaced the
same day. Appellees did not present any evidence Montgomery
County or its employees removed the stop sign from the
intersection or had notice of its absence. Section
101.060(a)(2) does not waive the County’s immunity.

Section 101.060(a)(3) does not waive the County’s immunity
either. For Montgomery County to have “actual notice” of
the removal of the stop sign by a third-party, information
concerning the sign must be actually communicated to or
obtained by an employee responsible for acting on the
information. See City of Dallas v. Donovan, 768 S.W.2d 905,
908 (Tex.App.-Dallas 1989, no writ); see also Martinez v.
City of Lubbock, 993 S.W.2d 882, 886 (Tex.App.-Amarillo
1999, pet. denied). Although there is evidence County
employees added limestone base and culverts on Forest Road
224 a few days before the accident, appellees have presented
no evidence the County had actual knowledge of the removal
or destruction of the sign prior to the accident. Without
this evidence, no fact issue is raised regarding correction
within a reasonable time.

Appellees maintain the County failed to post proper warning
devices to warn motorists of the end of the road way.
Specifically, they complain of the lack of warning signs,
lights, chevrons, and reflectors. Widener testified the
only warning device existing prior to the time of the
accident was the stop sign.

The Texas Tort Claims Act does not waive sovereign immunity
for “the failure of a governmental unit initially to place
a traffic or road sign, signal, or warning device if the
failure is a result of discretionary action of the
governmental unit.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.060(a)(1) (Vernon 2005); see also Tex. Civ.
Prac. & Rem. Code Ann. § 101.056(2) (Vernon 2005);
City of Grapevine v. Sipes, 195 S.W.3d 689, 694 (Tex.
2006); Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867
(Tex. 2002); State v. San Miguel, 2 S.W.3d 249, 251 (Tex.
1999). Appellees failed to show waiver of the County’s
immunity under section 101.060(a)(1).

Montgomery County challenges appellees’ contention that the
loose limestone rock on the roadway amounted to a special
defect. See Tex. Civ. Prac. & Rem. Code Ann. §
101.060(c). “A special defect is a condition of the same
kind of class as `excavations or obstructions on highways,
roads, or streets’ that unexpectedly and physically impairs
a vehicle’s ability to travel on the roadway, thus
presenting `an unusual and unexpected danger to ordinary
users of roadways.'” Harris County, Texas v. Estate of
Ciccia, 125 S.W.3d 749, 753 (Tex.App.-Houston [1st Dist.]
2003, pet. denied) (quoting State v. Rodriguez, 985 S.W.2d
83, 85 (Tex. 1999)). Whether a condition is a special
defect is a question of law. State Dep’t of Highways & Pub.
Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992). Where a
special defect exists, a governmental unit owes the
plaintiff the same duty as that owed by a private landowner
to an invitee. Tex. Civ. Prac. & Rem. Code Ann. §
101.022(b) (Vernon Supp. 2006); Payne, 838 S.W.2d at 237.
The duty owed to an invitee requires an owner to use
ordinary care to protect an invitee from a dangerous
condition of which the owner is, or reasonably should be,
aware. Id.

In support of their special defect argument, appellees cite
State v. Wollesen, 93 S.W.3d 910 (Tex.App.-Austin 2002, no
pet.), and Texas Department of Transportation v. O’Malley,
28 S.W.3d 652 (Tex.App.-Corpus Christi 2000, pet.
denied). In Wollesen, the Austin Court of Appeals affirmed
the trial court’s determination that the loose gravel was a
special defect; a roadway covered with an excessive amount
of loose gravel is unexpected and difficult to navigate.
Wollesen, 93 S.W.3d at 913-14. There, the State did not
challenge the special defect characterization and evidence
showed as much as two inches of loose gravel covered the
road; one witness to the accident stated Wollesen hit the
gravel, tried to slow down, and quickly lost control of her
car. In O’Malley, the Corpus Christi Court of Appeals found
a special defect where the evidence showed a 200-foot-long
stretch of curved roadway was covered with one-half cubic
yard of loose gravel. O’Malley, 28 S.W.3d at 656. There was
testimony in that case of an excessive amount of loose
gravel and the unsafe condition caused by the loose gravel.
Id.

In this case, appellees presented no evidence of the amount
of loose gravel on Forest Road 224 at the time of the
accident, nor have they shown that loose gravel, without
evidence of an excessive amount, is unexpected on a
limestone-base rural road. Appellees failed to show waiver
of the County’s immunity under Tex. Civ. Prac. & Rem. Code
Ann. § 101.060(c) (Vernon 2005).

Appellant’s issue is sustained. The trial court’s order is
reversed, and judgment is rendered dismissing the cause for
lack of jurisdiction.

REVERSED AND RENDERED.

[fn1] Appellees also sued “XYZ Corporation,” but no other
defendant was served or made an appearance.

[fn2] Although Montgomery County filed a motion for summary
judgment instead of a plea to the jurisdiction, the County
is entitled to an interlocutory appeal pursuant to section
51.014(a)(8) because the trial court denied the County’s
claim of no jurisdiction. See Thomas v. Long, No. 03-0204,
2006 WL 1043429, at *4 (Tex. Apr. 21, 2006).