TxDOT not responsible for cycle crash, appeals court affirms

Steve Korris Mar. 11, 2010, 5:58am

Barricade feature at the State Highway 105 exit ramp of U.S. 69/96/287.

AUSTIN – Jefferson County District Judge Donald Floyd's decision to absolve the Texas Department of Transportation of responsibility for a fatal motorcycle crash stands.

On Feb. 26, the Supreme Court of Texas denied review of Floyd's order in favor of the state and two businesses.

The family of the late Cassandra Humble claimed the defendants negligently installed a curb dividing traffic on the service road along U. S. Highway 69/96/287.

A motorcycle carrying Humble crashed when driver Gerry Hernandez, changing lanes at the State Highway 105 exit, struck the curb and lost control.

Hernandez testified he saw the curb but thought he had passed it.

A crew had bolted it to the pavement a day earlier, in an effort to curtail improper lane changing that led to traffic jams and accidents.

Humble's parents, Elmer Hanna and Joyce Hanna, and her children, Cotton and Lee, sued the Texas Department of Transportation.

They also sued John Thomas Inc., which produced the curb, and Impact Recovery Systems, which sold it, alleging they failed to warn the department of danger.

They claimed Impact Recovery Systems salesman Bob Magers deceived engineers Duane Browning and John Pitre about the right way to install the curb.

the plaintiffs allege Magers should have advised the engineers to erect delineators -- plastic poles sticking up from the curb -- to make the lane division more visible.

John Thomas Inc. and Impact Recovery Systems moved for summary judgment.

The department filed a plea to the jurisdiction, invoking the immunity that normally protects the state from lawsuits.

The family claimed the department waived immunity by maintaining a "special defect."

Floyd cleared all three defendants in 2008, and the Ninth District Court of Appeals in Beaumont affirmed him last August.

"The Dura-Curb was not hidden or obscured from the motorcyclist's vision," Justice David Gaultney wrote.

"Its purpose was not to prevent ordinary travelers from using the road, but rather to encourage safe use of the road," he wrote.

Initially, he wrote, double white lines separated the exit lane from the service road.

"Accidents occurred at that location because drivers coming down the exit ramp lane were crossing the double white lines onto the service road and attempting to turn on to a side street or into the parking lot entrance to a store," he wrote.

He wrote that traffic backed up on the ramp while drivers waited to turn.

To alleviate the problem, Gaultney wrote, the department attached white plastic delineator poles to the pavement between the lanes.

"The delineator poles were a maintenance headache, because they were knocked down and would have to be replaced," Gaultney wrote.

He wrote that salesman Magers told Browning his company's product, Dura-Curb, might solve the problem.

He wrote that Browning and Pitre decided to install it, without delineators.

"Browning and Pitre made clear that the application of the Dura-Curb to this highway was their responsibility and, though they considered Magers' statements, they alone made the engineering decision to apply the product in this manner," he wrote.

Browning and Pitre did not rely on Magers's representations, he wrote.

"The risk and benefits of the application were known to TxDOT. We see no evidence of fraud," he wrote.

Justices Charles Kreger and Hollis Horton agreed.

The family moved for rehearing, and the justices denied it in November.

Then the family petitioned the Supreme Court in December, to no avail.

The state was represented by Ronald Garner. David Fisher represented Impact Recovery Systems. Steve Dollinger represented John Thomas Inc.

Kevin Fuller represented the family.

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