Texas SC: Small gaps in road not premises defect, city immune from litigation

Steve Korris May 22, 2008, 5:56am

Texas Supreme Court

AUSTIN – Kenneth Reed's motorcycle wiped out on a 2-inch drop between lanes on a Dallas roadway, but according to the Texas Supreme Court he can't hold the city liable for injuries he suffered.

The justices on May 16 unanimously dismissed a lawsuit Reed filed against Dallas.

They reversed Fifth District appellate judges in Dallas, who held that the city forfeited the immunity against injury suits that state and local governments normally enjoy. The Fifth District had affirmed a ruling of Dallas County District Judge David Kelton.

The court's unsigned opinion declared that "there is nothing unusually dangerous about a slight drop-off between traffic lanes in the roadway."

The justices wrote, "Ordinary drivers, in the normal course of driving, should expect these slight variations on the road caused by normal deterioration."

Reed's attorneys, Mark Ticer and Roger Tafel, argued that uneven lanes constituted a special defect or a premises defect, either of which removes immunity.

"Where a special defect exists," the justices wrote, "the state owes the same duty to warn as a private landowner owes to an invitee."

Under a 1978 decision, they wrote, excavations and obstructions can be special defects. That case involved a hole 10 inches deep and 9 feet wide.

A 2-inch drop, they wrote, is not in the same class as an excavation or obstruction.

They quoted prior decisions finding that a crumbling sidewalk, a 3-inch depression in a sidewalk and a 90 degree turn at a detour were not special defects.

"If the 2 inch drop-off is a premises defect," they continued, "the city owed Reed the same duty a private landowner owes a licensee."

That duty would include warning a licensee about any dangerous condition that the owner is aware of and the licensee is not.

Reed tried to prove the city's knowledge by submitting an inspector's report rating the street C, for fair.

"Although the street inspector gave her report to the city, the report did not reveal the drop-off's potential danger," the justices wrote.

"On the contrary," they wrote, "the inspector gave the street a 'C' rating, which meant the road condition was 'fair' at the time of inspection."

Patricia Medrano represented the city of Dallas.

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