O'Neill Dissent in Denton Cty v. Beynon (Tex. 2009)(would permit special defect
claim based on wrongly positioned flood-gate pole that impaled car and injured passenger
proceed under Texas Tort Claims Act)
See --> Majority Opinion in Denton County v. Beynon, No. 08-0016 (Tex. May 1, 2009)(Willett)(Texas Tort
Claims Act immunity waiver for special defects, premises liability, special defect)
Harriet O’Neill writes in dissent: It is hard to imagine anything more
dangerous than a seventeen-foot metal pole pointing like a spear in the
direction of oncoming traffic. The Court doesn’t appear to disagree. It
concludes, however, that ordinary users of the roadway are not expected
to veer off the asphalt pavement, so anything they might encounter if they
do cannot be a special defect. I would agree with the Court if the particular
hazard were farther from the road than the metal pole that impaled the
plaintiff’s vehicle here. But departing a mere three feet from the road to
avoid a collision is not out of the ordinary, and the floodgate arm’s close
proximity to the road’s edge posed a threat that normal users of the road
would not expect. Because the Court concludes otherwise, I respectfully
Under the particular circumstances presented in this case, I consider the
floodgate arm a special defect and would affirm the court of appeals’
judgment. Because the Court does not, I respectfully dissent.
DENTON COUNTY, TEXAS v. DIANNE BEYNON AND ROGER BEYNON, INDIVIDUALLY, ET
AL.; from Denton County; 2nd district (02-07-00066-CV, 242 SW3d 169, 11-29-07)
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
dismisses the case.
Justice Willett delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright,
Justice Brister, Justice Green, and Justice Johnson joined. [link to pdf version here]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice
Medina joined. [pdf version of dissent]
View Electronic Briefs
O'Neill's Dissent in Denton County v. Beynon (Tex. 2009)
Justice O’Neill, joined by Chief Justice Jefferson and Justice Medina, dissenting.
It is hard to imagine anything more dangerous than a seventeen-foot metal pole
pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to
disagree. It concludes, however, that ordinary users of the roadway are not expected to
veer off the asphalt pavement, so anything they might encounter if they do cannot be a
I would agree with the Court if the particular hazard were farther from the road than the
metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from
the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close
proximity to the road’s edge posed a threat that normal users of the road would not
expect. Because the Court concludes otherwise, I respectfully dissent.
Rhiannon Beynon was a passenger in the backseat of a vehicle driven by Mark Hilz.
While driving on Old Alton Road in Denton County, Hilz observed an oncoming vehicle
with its brights on driving down the center of the road. To avoid the oncoming car, Hilz
steered his vehicle toward the edge of the road. As Hilz moved his car over, the right
tires left the pavement and dropped about eight inches onto the unpaved, unimproved
shoulder. Hilz quickly turned his wheels to the left and returned to the road briefly. But in
his attempt to correct the path of the car, he lost control. Hilz turned the car left and then
tried to correct by turning to the right. When he turned back to the right, the front wheels
left the road and the car’s undercarriage caught the edge of the pavement. The vehicle
began to slide along the road at a forty-five degree angle with its rear wheels still on the
pavement. While the car slid along the pavement, a floodgate arm punctured the driver’
s door. In its proper position the floodgate arm, a seventeen-foot metal pole attached
to a base buried in the ground, would have been facing away from traffic and secured
in place. However, the arm was unsecured and improperly pointing toward oncoming
traffic when Hilz’s car collided with it three feet from the pavement. The arm penetrated
the driver’s door, pierced Rhiannon’s leg, and exited through the floorboard. The car
stopped its slide at the base of the floodgate. Hilz did not see the floodgate arm or
realize that the car had collided with it until he heard Rhiannon’s screams. Rhiannon’s
injuries resulted in amputation of her leg below the knee.
The Court does not dispute that the floodgate arm was in the wrong position, that the
floodgate arm impaled the vehicle, or that its open position was unexpected and
dangerous. The Court concludes, however, that because Hilz veered three feet from
the asphalt, he was no longer an ordinary user of the road and Denton County’s plea to
the jurisdiction should have been granted. I disagree.
Special defects are “defects of the same kind or class as ‘excavations or obstructions
on highways, roads, or streets’ that present an ‘unexpected and unusual danger to
ordinary users of roadways.’” City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008)
(citation omitted). To be a special defect, the condition must also “unexpectedly and
physically impair a car’s ability to travel on the road.” State v. Rodriguez, 985 S.W.2d
83, 85 (Tex. 1999). A special defect need not occur on the surface of a road, but “[w]
hether on a road or near one, . . . conditions can be [special defects] only if they pose a
threat to the ordinary users of a particular roadway.” State Dep’t of Highways & Pub.
Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992).
The Court concludes the floodgate arm is not a special defect because it was not
blocking the road and the objective expectations of an “ordinary user” would not include
veering off the road and onto the grass. But “ordinary users” of roads sometimes stray
outside the lines, else there would be no need for shoulders. In my view, vehicle
operators do not cease to be ordinary users every time they veer onto a shoulder. As
the court of appeals observed, normal users of the road nearly always drive on the
paved surface, yet “it is certainly not inconceivable that a normal user of the road might
pull off or leave the edge of the road onto the unimproved shoulder for one reason or
another, either intentionally or accidentally.” 242 S.W.3d at 174. In the ordinary course
of driving, hazards like road debris, livestock, or other drivers who don’t respect their
lanes are often encountered that require prudent drivers to take advantage of the
shoulder, whether improved or unimproved. The Court’s conclusion that a driver was no
longer an ordinary user because two of his tires left the roadway as the result of his
efforts to escape a head-on collision is inconsistent with what objectively reasonable
drivers do every day.
The Court recognizes that the test for determining the expectations of an ordinary user
is an objective one. Yet it fails to conduct an objective analysis, citing only Hilz’s
statement that “the ‘normal course of travel for [Old Alton Road] would be the asphalt
pavement.’” Hilz’s testimony merely states the obvious: users of the road normally drive
on the paved surface. That doesn’t mean veering three feet from the asphalt to avoid a
collision, with two wheels still on the road, places a driver beyond the normal course of
travel. The Court’s concept of “ordinary user” limits special defects to those that appear
only within the lines between the shoulders of the road, contrary to our acknowledgment
in Payne that a number of courts have recognized that “conditions threatening normal
users of a road may be special defects even though they do not occur on the surface of
a road.” 838 S.W.2d at 238 n.3 (citations omitted); see, e.g., Harris County v. Ciccia ex
rel. Ciccia, 125 S.W.3d 749, 754–55 (Tex. App.—Houston [1st Dist.] 2003, pet.
denied) (holding that a culvert yards beyond the road’s end where a “right-turn only”
lane directed traffic is a special defect); see also Tex. Dep’t of Transp. v. Dorman, No.
05-97-00531-CV, 1999 WL 374167 at *2–4 (Tex. App.—Dallas June 10, 1999, pet.
denied); Morse v. State, 905 S.W.2d 470, 474–76 (Tex. App.—Beaumont 1995, writ
Not all off-road objects a driver might encounter in the ordinary course of travel qualify
as special defects; to the contrary, few do. Obstructions like road signs, construction
equipment in marked construction zones, and properly secured floodgate arms are not
unexpected and do not pose an unusual danger to ordinary travelers. See City of
Dallas v. Giraldo, 262 S.W.3d 864, 871 (Tex. App.—Dallas 2008, no pet.) (holding that
a bulldozer parked eight to ten feet off the edge of the road is “not of the same kind or
class as the excavations or obstructions the statute contemplates” and “did not pose a
threat to the ordinary users of the roadway”); Harris County v. Smoker, 934 S.W.2d
714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (“[A] longstanding, routine,
or permanent condition is not a special defect.”). But an unsecured floodgate arm
pointing directly at oncoming traffic a mere three feet from the road’s edge is out of the
ordinary, unexpected, and extremely dangerous to ordinary users of the roadway.
Under the particular circumstances presented in this case, I consider the floodgate arm
a special defect and would affirm the court of appeals’ judgment. Because the Court
does not, I respectfully dissent.
OPINION DELIVERED: May 1, 2009
 The Court summarily concludes that the floodgate arm “is not of the same kind or class as
an excavation or obstruction . . . .” It is hard to envision a more significant obstruction than a
seventeen-foot metal pole piercing a vehicle’s door and floorboard. Moreover, as we have
noted, “The examples in the statute are not exclusive, and courts 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 my view, a metal
pole that pierced a vehicle, preventing it from traveling farther down the road, is similar enough
to an obstruction to fall within the statute’s ambit.