TxDOT v. York, No. 07-0743 (Tex. Dec. 5, 2008)(per curiam) (jury verdict for spouse in wrongful death of
motorist overturned on holding that loose gravel on road is not a special defect as a matter of law)(TTCA,
Texas Tort Claims Act suit, exception to sovereign immunity by statutory waiver of immunity to suit and liability,
dangerous road conditions, special defect, premises defect, actual knowledge of hazard, JNOV)
TxDOT then appealed the judgment to the court of appeals, arguing that loose gravel is
not a special defect, but rather, a premise defect. The court of appeals disagreed,
holding that the loose gravel is a special defect and affirming the trial court’s judgment.
234 S.W.3d at 218. We reverse.
The trial court applied the wrong duty of care in this case. The jury charge did not
contain a premise defect instruction, so the jury did not have an opportunity to
determine liability under that stricter licensee standard. The record reflects conflicting
testimony as to whether TxDOT had actual knowledge of the loose gravel, and whether
York did not have actual knowledge of it. Therefore, the question of whether TxDOT
satisfied the licensee standard of care should go to the fact finder. See Tex. Dep’t of
Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (“[I]n some cases,
disputed evidence of jurisdictional facts that also implicate the merits of the case may
require resolution by the finder of fact.”); Keetch v. Kroger Co., 845 S.W.2d 262, 266
(Tex. 1992) (“Proof that the premises owner or occupier created a condition which
poses an unreasonable risk of harm may constitute circumstantial evidence that the
owner or occupier knew of the condition.”). Because of this, we reverse the court of
appeals’ judgment and remand the case for a new trial applying the premise defect
standard.
Supreme Court e-Briefs in 07-0743 TEX. DEPT. OF TRANSP. v. YORK
TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF
THE ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from
Robertson County; 10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07)
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 remands the case to the trial court.
Per Curiam Opinion
Legal terms & concepts: sovereign immunity waivers | local governmental entities | state government
entiities | premises liability defects | special defect | actual knowledge of the dangerous condition | distinction
between invitee and licensee with respect to duty owed by premises owner
═════════════════════════════════════════════════════════════════════
Texas Department of Transportation (TxDOT) v. York (Tex. Dec. 5, 2008)
═════════════════════════════════════════════════════════════════════
PER CURIAM
In this case, we decide whether loose gravel on a road is a “special defect” under Texas Civil
Practices and Remedies Code section 101.022(b). We hold that loose gravel is not a special defect
as a matter of law, and therefore, reverse the court of appeals’ judgment and remand to the trial court.
On October 29, 2003, Rebecca York lost control of her vehicle while crossing a patch of loose gravel
on Farm-to-Market Road 979 in Robertson County. She crossed the center line and struck an
oncoming truck. She died at the scene. The day before the accident, a Texas Department of
Transportation (TxDOT) crew had applied a spot seal coat on the portion of highway where the
accident occurred. A spot seal application consists of three steps: (1) liquid asphalt is sprayed onto
the road surface; (2) a layer of gravel (or aggregate) is spread on top of the asphalt; and (3) the gravel
is rolled into the asphalt. The asphalt then hardens to hold the gravel in place and form a new road
surface. By the time York reached the serviced patch of road the next morning, however, the road
surface was covered with a layer of loose gravel approximately one-half to three-quarters inches
deep. The cause of the presence of the excess loose gravel is disputed.
York’s surviving spouse filed a wrongful death suit against TxDOT.[1] TxDOT asserted sovereign
immunity against suit and liability, except to the extent waived under the Tort Claims Act. After the
presentation of arguments and evidence, the trial court submitted a jury charge with a special defect
instruction, rather than a premise defect instruction. The jury returned a verdict in York’s favor,
awarding damages of $1,033,440. Pursuant to statutory limitations, the verdict was reduced to
$250,000. TxDOT moved for judgment notwithstanding the verdict or a new trial, which the trial court
denied. TxDOT then appealed the judgment to the court of appeals, arguing that loose gravel is not a
special defect, but rather, a premise defect. The court of appeals disagreed, holding that the loose
gravel is a special defect and affirming the trial court’s judgment. 234 S.W.3d at 218. We reverse.
The State of Texas is protected from suits for damages by sovereign immunity, unless waived by
statute. Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 594 (Tex. 2001); Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). Legislative consent to waive
sovereign immunity by statute must be by “clear and unambiguous language,” TEX. GOV’T CODE §
311.034, and suit can then be brought “only in the manner indicated by that consent.” Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex. 2003) (citing Hosner v. DeYoung, 1 Tex. 764, 769
(1847)). “[W]hen construing a statute that purportedly waives sovereign immunity, we generally
resolve ambiguities by retaining immunity.” Wichita Falls State Hosp., 106 S.W.3d at 697.
The Texas Legislature has waived sovereign immunity for personal injury claims arising from a
premise defect. Tex. Civ. Prac. & Rem. Code § 101.021. Former section 101.022 of the Texas Civil
Practices and Remedies Code[2] applied different duties of care to a suit depending on whether the
condition was a premise defect or a special defect:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty
that a private person owes to a licensee on private property, unless the claimant pays for the use of
the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as
excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence,
condition, or malfunction of traffic signs, signals, or warning devices as is required by Section
101.060.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3303 (amended 2005)
(current version at Tex. Civ. Prac. & Rem. Code § 101.022) (hereinafter § 101.022). If a claim
involves a premise defect under section (a), a licensee standard applies. Tex. Civ Prac. & Rem.
Code § 101.022(a); see also State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235,
237 (Tex. 1992). Under a licensee standard, a plaintiff must prove the governmental unit had actual
knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not
have actual knowledge of that same condition. Payne, 838 S.W.2d at 237. But if a claim involves a
special defect under section (b), a more lenient invitee standard applies. Tex. Civ. Prac. & Rem.
Code § 101.022(b). Under an invitee standard, the plaintiff need only prove that the governmental unit
should have known of a condition that created an unreasonable risk of harm. Payne, 838 S.W.2d at
237; see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993)
(per curiam) (“Absent a finding that the State knew of the dangerous condition prior to the accident, it
is not liable to plaintiffs unless the condition was a special defect.”). Whether a condition is a premise
defect or special defect is a question of law, which we review de novo. Payne, 838 S.W.2d at 238.
The Civil Practices and Remedies Code does not define “special defect,” but does give guidance by
likening special defects to “excavations or obstructions.” See Tex. Civ. Prac. & Rem. Code § 101.022
(b). Thus, “[u]nder the ejusdem generis rule, we are to construe ‘special defect’ to include those
defects of the same kind or class as [excavations or obstructions].” County of Harris v. Eaton, 573 S.
W.2d 177, 179 (Tex. 1978). While these specific examples “are not exclusive and do not exhaust the
class,” the central inquiry is whether the condition is of the same kind or falls within the same class as
an excavation or obstruction. Id.; City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997) (per
curiam). A special defect, then, cannot be a condition that falls outside of this class. See Payne, 838
S.W.2d at 238, n.3 (“[T]o the extent [courts] classify as ‘special’ a defect that is not like an excavation
or obstruction on a roadway, we disapprove of them.”); Eaton, 573 S.W.2d at 179 (“The statutes
provide an understanding of the kinds of dangerous conditions against which the [L]egislature
intended to protect the public. They are expressed as such things ‘as excavations or roadway
obstructions.’”). We have recognized some characteristics of this class that should be considered.
See Eaton, 573 S.W.2d at 179 (“the size of the dangerous condition”); see also City of Dallas v.
Reed, 258 S.W.3d 620, 622 (Tex. 2008) (per curiam) (“some unusual quality outside the ordinary
course of events”); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam) (something that
“unexpectedly and physically impair[s] a car’s ability to travel on the road”); Payne, 838 S.W.2d at 238
(“an unexpected and unusual danger to ordinary users of roadways”).
A layer of loose gravel on a road does not share the characteristics we have articulated in any of the
above cases, and, thus, does not fit within the same class as an obstruction or excavation. Loose
gravel does not form a hole in the road or physically block the road like an obstruction or excavation.
See Eaton, 573 S.W.2d at 178-80 (holding that a large hole six to ten inches deep and four to nine
feet wide covering ninety percent of the road’s width was a special defect, and suggesting an
avalanche clogging a mountain road would likewise be a special defect); see also State v. Williams,
940 S.W.2d 583, 585 (Tex. 1996) (deferring to the court of appeals’s finding that a street sign lying in
middle of a highway was a special defect). Likewise, less than an inch of loose gravel does not
“physically impair a car’s ability to travel on the road” in the manner that an excavated road or
obstruction blocking the road does, Rodriguez, 985 S.W.2d at 85, nor does it present the same type
of “unexpected and unusual danger to ordinary users of roadways” as does this class. Payne, 838 S.
W.2d at 238. And while loose gravel could fall within this class if, for example, a sizeable mound of
gravel were left on the roadway, a layer of loose gravel falls in the same class as ordinary premise
defects—those conditions that do not reach the level of an obstruction or excavation. See, e.g., Reed,
258 S.W.3d at 622 (holding that a two-inch difference in elevation between traffic lanes on a roadway
was not a special defect); Rodriguez, 985 S.W.2d at 86 (holding that a ninety-degree turn in a detour
from a road construction project was not a special defect); Kitchen 867 S.W.2d at 786-87 (holding
that an icy bridge was not a special defect); Payne, 838 S.W.2d at 239 (holding that a culvert beneath
a roadway was not a special defect).
The trial court applied the wrong duty of care in this case. The jury charge did not contain a premise
defect instruction, so the jury did not have an opportunity to determine liability under that stricter
licensee standard. The record reflects conflicting testimony as to whether TxDOT had actual
knowledge of the loose gravel, and whether York did not have actual knowledge of it. Therefore, the
question of whether TxDOT satisfied the licensee standard of care should go to the fact finder. See
Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (“[I]n some cases,
disputed evidence of jurisdictional facts that also implicate the merits of the case may require
resolution by the finder of fact.”); Keetch v. Kroger Co., 845 S.W.2d 262, 266 (Tex. 1992) (“Proof that
the premises owner or occupier created a condition which poses an unreasonable risk of harm may
constitute circumstantial evidence that the owner or occupier knew of the condition.”). Because of this,
we reverse the court of appeals’ judgment and remand the case for a new trial applying the premise
defect standard.
OPINION DELIVERED: December 5, 2008
[1] In his original petition, York’s surviving spouse also included as defendants Robertson County, the
driver of the other vehicle, and the driver’s employer, but later nonsuited them.
[2] The statute was amended in 2005 to include language dealing specifically with toll roads, which
are not at issue in this case. See Tex. Civ. Prac. & Rem. Code § 101.022. The language is the same
in all other respects. See id. Thus, our holding would be the same under the amended statute.
═════════════════════════════════════════════════════════════════════
Texas Department of Transportation (TxDOT) v. York,
No. 10-06-00210-CV, 234 S.W.3d 212 (Tex.App.- Waco, Aug. 8, 2007, pet. granted)
Appellate Court briefs in TxDOT v. York
═════════════════════════════════════════════════════════════════════
Opinion
Family members of Rebecca York sued the Texas Department of Transportation (TxDOT), alleging a premises
liability cause of action in their wrongful-death suit. A jury found TxDOT 100% at fault and $1,033,440 in
damages. After applying the Texas Tort Claims Act’s damages limitation, the trial court rendered a final
judgment against TxDOT for $250,000. Asserting three issues, TxDOT appeals. We will affirm.
On October 29, 2003, at around 6:50 a.m., York, a nurse, was driving to work on FM 979 in Robertson County
and lost control of her car while driving over loose aggregate (gravel) at a curve in the road. York’s car
crossed the center line and struck an oncoming pickup pulling a loaded trailer; she died at the scene. The day
before on that road and on others in the area, TxDOT had performed “spot seal coat” applications (liquid
asphalt and gravel); those applications were approximately 6½ feet wide and 18 to 20 feet long.
Special Defect
The plaintiffs asserted that the loose gravel was a special defect and that the duty owed by TxDOT was that
owed to an invitee. The trial court agreed and submitted the case to the jury on that basis. In its first issue,
TxDOT contends that the trial court erroneously denied its motion for JNOV. In support of this issue, TxDOT
asserts that the road condition was not a special defect, but was an ordinary premise defect. TxDOT argues
that the plaintiffs failed to obtain jury findings to support a claim based on an ordinary premise defect that
imposed on TxDOT the duty owed to a licensee. Specifically, TxDOT states that the plaintiffs were required to,
but did not, obtain jury findings that TxDOT had actual knowledge of the dangerous condition and that York
lacked knowledge of the dangerous condition.
The duty owed by a governmental unit in a TTCA premises liability claim[1] is governed by section 101.022,
which in 2003 provided:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a
private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as
excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or
malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3303 (amended 2005) (current version at
Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (Vernon Supp. 2006)).
We recently addressed ordinary premise defects and special defects:
A governmental unit may be subject to premises liability for either ordinary premise defects or special defects.
An ordinary premise defect is a condition of the premises which creates an unreasonable risk of harm. State
Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); Tex. Dep’t of Transp. v.
Fontenot, 151 S.W.3d 753, 760-61 (Tex. App.—Beaumont 2004, pet. denied); Corbin v. City of Keller, 1 S.W.
3d 743, 748 (Tex. App.—Fort Worth 1999, pet. denied). Special defects are “excavations,” “obstructions,” or
other conditions which “present an unexpected and unusual danger to ordinary users of roadways.” State Dep’
t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (quoting Payne, 838 S.
W.2d at 238); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) (Vernon Supp. 2006); Fontenot, 151 S.
W.3d at 761; Corbin, 1 S.W.3d at 746.
For an ordinary premise defect, “the governmental unit owes to the claimant only the duty that a private
person owes to a licensee on private property, unless the claimant pays for the use of the premises.” Tex. Civ.
Prac. & Rem. Code Ann. § 101.022(a) (Vernon Supp. 2006); Payne, 838 S.W.2d at 237; Fontenot, 151 S.W.
3d at 760; Corbin, 1 S.W.3d at 747. Conversely, if the condition at issue constitutes a special defect, then the
governmental unit owes the claimant the same duty that a private person owes an invitee. Payne, 838 S.W.2d
at 237; Fontenot, 151 S.W.3d at 760-61; Corbin, 1 S.W.3d at 747.
Thus, for an ordinary premise defect, the governmental unit can be liable only if it has actual knowledge of the
condition at issue and the plaintiff did not. Payne, 838 S.W.2d at 237; Fontenot, 151 S.W.3d at 761; Corbin, 1
S.W.3d at 748. For a special defect, the governmental unit can be liable if it knew or should have known of the
condition. Payne, 838 S.W.2d at 237; Fontenot, 151 S.W.3d at 761. The plaintiff’s awareness of the
existence of a special defect is immaterial. See Payne, 838 S.W.2d at 237; Fontenot, 151 S.W.3d at 761;
Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547, 553 (Tex. App.—Waco 2001, no pet.).
“Whether a condition is a premise defect or a special defect is a question of duty involving statutory
interpretation and thus an issue of law for the court to decide.” Payne, 838 S.W.2d at 238; Fontenot, 151 S.W.
3d at 761; accord R.R. Street & Co. v. Pilgrim Enters., Inc., 166 S.W.3d 232, 240 (Tex. 2005); Corbin, 1 S.W.
3d at 747.
Stewart v. City of Corsicana, 211 S.W.3d 844, 848-49 (Tex. App.—Waco 2006, pet. filed) (footnote omitted).
Thus, our standard of review on whether the condition is an ordinary premise defect or a special defect—a
question of law—is de novo. See State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); State Dep’t of Transp. v.
O’Malley, 28 S.W.3d 652, 655 (Tex. App.—Corpus Christi 2000, pet. denied).
“A special defect must be a condition of the same kind or class as an excavation or roadway obstruction and
present ‘an unexpected and unusual danger to ordinary users of roadways.’” Rodriguez, 985 S.W.2d at 85
(quoting Payne, 838 S.W.2d at 238, and citing County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)).
However, the examples in the statute (“such as excavations or obstructions”) are not exclusive, and we are to
construe “special defects” to include defects of the same kind or class as the ones expressly mentioned in the
statute. City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
In this case, the TxDOT crew members testified that they had correctly performed the spot seal coat
application, which consisted of three steps: (1) spraying liquid asphalt on the road; (2) spreading one layer of
aggregate (gravel), consisting of crushed limestone; and (3) rolling the gravel into the asphalt by driving back
and forth over it with a dump truck. The patches were inspected visually and by driving over them, and they
looked good to the crew. It was undisputed that the asphalt did not hold the gravel to the road; one possible
reason was a flaw in the asphalt’s chemical composition. There was no signage warning of loose gravel.
Before York’s accident, several other drivers had lost control of their cars in the same area, which was a curve
on the road where the speed limit was 70 m.p.h. On the afternoon before York’s accident, Brenda Barnett hit
the gravel and “fishtailed,” and later that evening, her husband, who was driving slow enough to watch for the
gravel, also fishtailed. Also on that day, JoAnn Langford slid on the gravel and spun around, facing the ditch.
Early the next day, and about thirty minutes before York’s accident, Melody Henry hit the loose gravel in the
curve and, similar to York, slid and lost control, veering across the oncoming lane and into the opposite bar
ditch.
John Paul Moore, a volunteer fireman who was the first responder to arrive after York’s accident, said that his
feet slid on the loose gravel in the process of climbing into and down from the back of his truck. Moore
described the gravel as crushed white limestone, about one-quarter of an inch to three-quarters of an inch in
diameter. He described to an investigator that the scene was like “walking on marbles” because that was all he
could equate it to—the “pieces would actually slide and move.” While Moore admitted that the gravel was not
slick or round like a marble and that there was only one layer, it would “make you slip” when walking on it.
Moore also observed recent skid marks that indicated other vehicles had lost control at the same scene.
William Rogillo, a Department of Public Safety Senior Corporal, investigated the accident with a DPS team that
concluded York lost control because of loose gravel and her failure to control her speed on the loose gravel.
Rogillo’s team did skid testing to determine the coefficient of friction of the road surface. The loose gravel had
been swept off the road at the time of the skid testing, so the first set of skid tests did not involve loose gravel
and had results of .532 and .521. They then had the loose gravel placed back on the road, and a second set
of skid tests had results of .387, .404, and .417. Although they attempted to duplicate the amount of loose
gravel, Rogillo admitted that they “were unable to know for sure” whether the amount of gravel was the same
as at the time of York’s accident. Rogillo said that the lowest amount of friction (.387) was the friction expected
on a wet road.
TxDOT asserts that the loose gravel in this case was not a special defect because it was not “extraordinarily
slippery”—only ordinarily slippery—and it was not unusual or unexpected to York because she had crossed
several other spots of loose gravel before her accident. TxDOT cites no authority that the loose gravel must
have rendered the road “extraordinarily” slippery.[2] We note that at least one other court has found loose
gravel to be a special defect: the Corpus Christi court 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, and there was
testimony of an excessive amount of loose gravel and the unsafe condition caused by the loose gravel.[3] O’
Malley, 28 S.W.3d at 656 (“Like an excavation or obstruction, a roadway covered with an excessive amount of
loose gravel is not something motorists can reasonably be expected to anticipate.”). As it does in this case,
TxDOT argued that even though there was gravel on the road, the road still maintained very good traction,
with a .665 coefficient of friction (much higher than in this case). Id. at 655-56. The court replied: “This may
be true, but the existence of traction does not discount the unexpected nature of the excess gravel on the
road.” Id. at 656.
Based on the facts of York’s accident and the other similar incidents at the same location, the evidence about
the volume and looseness of the gravel, the absence of signage, and the questionable (but nondispositive)
friction testing, we hold that the loose gravel on this road at this location was a special defect. And for these
same reasons and based on this same evidence, we reject TxDOT’s alternative contention that there is no
evidence that the loose-gravel condition posed an unreasonable risk of harm, one of the elements of a
premises liability cause of action. See LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). A condition
poses an unreasonable risk of harm when there is a sufficient probability of a harmful event occurring that a
reasonably prudent person would have foreseen it or some similar event as likely to happen. County of
Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002); see also Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.
3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“The determination of whether a particular
condition poses an unreasonable risk of harm is generally fact specific.”).
In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict,
crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). There is legally insufficient
evidence or “no evidence” of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b)
the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a
vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence
conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997). More than a scintilla of evidence exists when the evidence supporting the finding, as a
whole, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id.
In this case there is more than a scintilla of evidence that the loose-gravel condition posed an unreasonable
risk of harm. And to the extent TxDOT is asserting that only one layer of loose gravel on the curve of a road
with a 70 m.p.h. speed limit does not pose an unreasonable risk of harm, we reject that argument on its face.
Because the trial court properly submitted the case to the jury as a special defect, it did not err in denying
TxDOT’s motion for JNOV. We overrule the first issue.
No Duty
TxDOT’s second issue asserts that the trial court erroneously denied its motion for JNOV because the loose-
gravel condition was open and obvious and TxDOT thus owed no duty to York if she was a licensee. In Parker
v. Highland Park, Inc., 565 S.W.2d 512, 521 (Tex. 1978), the no-duty doctrine as to invitees was abolished.
Because we have found the loose gravel condition to be a special defect and TxDOT’s duty was that owed an
invitee, the no-duty doctrine is inapplicable, and we overrule issue two.
Actual or Constructive Knowledge
In its third issue, TxDOT asserts that the trial court erroneously denied its motion for JNOV because there was
no evidence TxDOT had actual or constructive knowledge of the loose gravel condition. For a premises-
liability claim involving an invitee, it must be proved that the premises owner knew (actual knowledge) or should
have known (constructive knowledge) of the condition. State Dep’t of Highways & Pub. Transp. v. Payne, 838
S.W.2d 235, 237 (Tex. 1992); Tex. Dep’t of Transp. v. Fontenot, 151 S.W.3d 753, 761 (Tex. App.—Beaumont
2004, pet. denied); see LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). TxDOT claims that the gravel
was not loose or had not become unstuck when its crew left the area, but the record does not support that
assertion.
The fact that TxDOT created the loose gravel condition does not automatically mean that TxDOT had actual
knowledge of it. But, “the fact that the owner or occupier of a premises created a condition that posed an
unreasonable risk of harm may support an inference of knowledge. . . . Creating the condition does not
establish knowledge as a matter of law for purposes of premises liability, however, creation of the condition is
circumstantial evidence of knowledge.” Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 599 (Tex. App.—El
Paso 2003, no pet.) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 265-66 (Tex. 1992)). This circumstantial
evidence is some—more than a scintilla of—evidence of TxDOT’s actual knowledge. We next turn to
constructive knowledge.
Constructive knowledge can be established by showing that the condition had existed long enough for the
owner to have discovered it upon reasonable inspection. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03
(Tex. 2000); see also Harris County v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978). Thus, we focus on whether
there is some evidence that TxDOT should have discovered the loose gravel condition upon reasonable
inspection.
James Marek, one of the TxDOT crew members, said that he inspected the patch by looking at it and that it
looked good—there was no “significant loose aggregate”—but he did not walk on it. David Maresch, the dump
truck driver, rolled over the gravel to pack it and looked at it, noticing that there was “some” (“just a few rocks”)
“loose aggregate,” which he said was normal. David Polk III disagreed with Maresch, saying that he did not
notice any loose rock and said it “looked pretty good,” yet admitting that in his deposition he had testified that
he couldn’t recall the job, though he said he later recalled it upon reviewing his written statement. None of the
crew testified about what time of day they were working on FM 979, and nothing in the record supports the
assertion in TxDOT’s brief that the loose gravel condition “did not arise until after normal business hours.”
York’s accident happened early on the morning of October 29. On the afternoon (just after 5:00 p.m.) of the
day the patch work was done—the day before York’s accident—Brenda Barnett hit the gravel and her car
“fishtailed.” Later that evening, Barnett was on the same road with her husband, who was driving slow enough
to watch for the gravel because she had told him about it, also fishtailed on the loose gravel. Also on that day
(the record does not reflect the time of day), JoAnn Langford slid on the loose gravel on the curve where York
lost control, and Langford’s car spun around, facing the ditch on the other side of the road.
Viewing the evidence in the light favorable to the verdict, we hold that there is more than a scintilla of evidence
that TxDOT had constructive knowledge of the loose gravel condition. In addition to the circumstantial
evidence arising from TxDOT’s creation of the condition, the evidence recited above about TxDOT’s
inspection, and the similar accidents on the same day the patch work was done, reasonable and fair-minded
jurors could conclude that TxDOT could have discovered the loose gravel upon reasonable inspection. We
overrule TxDOT’s third issue.
Postjudgment Interest
In a cross-point, York’s family members assert that the judgment should be reformed to apply the
postjudgment interest rate of 8%. See Tex. Fin. Code Ann. § 304.003 (Vernon 2006). TxDOT agrees. We
thus modify the judgment to reflect a postjudgment interest rate of 8%. As modified, the judgment is affirmed.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed as modified
Opinion delivered and filed August 8, 2007
[CV06]
[1] TxDOT, a governmental unit, is immune from both suit and liability for York’s death unless its
immunity is waived by the terms of the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.021, 101.025 (Vernon 2005). The threshold inquiry in any TTCA suit is whether immunity has been
waived under section 101.021, which states that “[a] governmental unit in the state is liable 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.” Id. § 101.021(2).
[2] TxDOT’s “ordinarily slippery” argument also depends on its analogy between the loose gravel on
the road and a wet road, but this analogy has a major flaw: a driver on a wet road knows that the road is wet
and therefore slippery and can take precautions such as slowing down. There is nothing unexpected or
unusual about a wet road being slippery. See State Dep’t of Highways v. Kitchen, 867 S.W.2d 784, 786 (Tex.
1993) (holding that ice on bridge during winter was not a special defect because it is not unexpected or
unusual); cf. State Dep’t of Transp. v. O’Malley, 28 S.W.3d 652, 656 (Tex. App.—Corpus Christi 2000, pet.
denied) (“Like an excavation or obstruction, a roadway covered with an excessive amount of loose gravel is
not something motorists can reasonably be expected to anticipate.”); State v. Wollesen, 93 S.W.3d 910, 913
(Tex. App.—Austin 2002, no pet.) (“Like an excavation or obstruction, a roadway covered with an excessive
amount of loose gravel is unexpected and difficult to navigate.”). In this case, with no loose-gravel signage,
drivers would not know there was loose gravel on the curve that made the road either ordinarily or
extraordinarily slippery, and it would thus be unexpected or unusual.
[3] Albeit in apparent dicta, the Austin Court of Appeals affirmed the trial court’s determination that
loose gravel was a special defect. Wollesen, 93 S.W.3d at 913-14 (“Clearly, the presence of the loose gravel
unexpectedly and physically impaired Wollesen’s ability to travel on the road.”).