TxDoT v. York, No. 07-0743 (Tex. May 22, 2009)(per curiam)
(Texas Tort Claims Act, TTCA, road hazard, premises liability, loose gravel not a special defect)
THE GIST: We hold that loose gravel is not a special defect as a matter of law, and
therefore, reverse the court of appeals’ judgment and dismiss the case.
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)
motion for rehearing granted
The Court's opinion and judgment of December 5, 2008 are withdrawn and the opinion and judgment of
this date are substituted
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.
Per Curiam Opinion (pdf version of opinion on court's website)
Justice O'Neill notes her dissent to granting the motion for rehearing
See prior decision: Dec. 2008 Opinion in TxDOT v. York (Tex 2008)(superseded) (reversing the court
of appeals’ judgment on finding that loose gravel was not "special defect and remanding the case for a
new trial under alternative theory of liability applying the premise defect standard)
COMMENTARY: More Special Defects Jurismalprudence: Jury's Damages Award to Accident Victim's
Spouse under the Texas Tort Claims Act thrown out - Case dismissed (JCB) |
Accident victims' perilous road to the Texas Supreme Court (JCB) |
Loose gravel caused by repaving is not a "special defect" creating state liability for an automobile
accident (Order List for May 22, 2009) (Don Cruse Blog) |
Other Texas Texas Supreme Court Tort Claims Act Decisions | TTCA - Text of Statute |
TxDOT v. York, No. 07-0743 (Tex. 2009) (per curiam)
We grant petitioner’s motion for rehearing, withdraw our per curiam opinion issued December 5,
2008, and substitute the following in its place.
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 dismiss the
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 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 and holds the
gravel in place to form a new road surface. By the time York reached the serviced portion of the
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. 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
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.
De Young, 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 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
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 & Pub. Transp. v. Payne, 838 S.W.
2d 235, 237 (Tex. 1992). Under a licensee standard, a plaintiff must prove that 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.
Id. Under an invitee standard, a plaintiff need only prove that the governmental unit should have
known of a condition that created an unreasonable risk of harm. Id.; 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 238–39 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’ 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 (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
York also cannot recover under an ordinary premises defect claim. York prepared, and the trial
court submitted, a jury charge with an invitee standard of care—one associated with a special
defect. TxDOT objected to this charge and requested that an ordinary premises defect charge
be given instead. See Tex. R. Civ. P. 274. As a result, York failed to obtain jury findings on two
necessary elements of an ordinary premises defect claim: that TxDOT had actual knowledge of
the loose gravel and that York lacked actual knowledge of the loose gravel. Payne, 838 S.W.2d
at 241. Because TxDOT objected to the lack of these elements in the jury charge, and because
York failed to obtain a finding on these issues, York cannot recover under an ordinary premises
defect claim. Id. (citing Tex. R. Civ. P. 279) (holding that knowledge element could not be
deemed in favor of plaintiff where defendant objected to the omission of that element from the
jury charge). Therefore, the verdict does not support a judgment in York’s favor. Id. We reverse
the court of appeals’ judgment and dismiss the case.
OPINION DELIVERED: May 22, 2009
 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.
 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.
 We have recently emphasized that “unexpected and unusual danger” and other characteristics noted
in our special-defect cases are used “to describe the class, not to redefine it.” Denton County v. Benyon,
___ S.W.3d ___, ___ n.11 (Tex. 2009).
TEXAS TORT CLAIMS ACT [excerpts]
SUBCHAPTER B. TORT LIABILITY OF GOVERNMENTAL UNITS
Sec. 101.021. GOVERNMENTAL LIABILITY.
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or
the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven
vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) 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.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Sec. 101.022. DUTY OWED: PREMISE AND SPECIAL DEFECTS.
(a) Except as provided in Subsection (c), 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.
(c) If a claim arises from a premise defect on a toll highway, road, or street, the governmental unit owes
to the claimant only the duty that a private person owes to a licensee on private property.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Acts 2005, 79th Leg., Ch. 281, Sec. 2.88, eff. June 14, 2005.