David Yates Jan. 22, 2013, 12:52pm

In June 2011, a Jefferson County jury nailed the Texas Department of Transportation with a $1,145,000 judgment, finding that uncut grass obscured a woman’s vision and caused her to steer into oncoming traffic. 

On Jan. 17 justices seated on the Texas Ninth District Court of Appeals in Beaumont reversed the outcome and dismissed the case for lack of jurisdiction. The court opined that TxDOT did not have sufficient actual knowledge of the alleged dangerous condition to warrant the jury’s conclusion.

As previously reported, the children of the late Hazel Marie Zapf filed suit against TxDOT and MD Johnson Tractor Service in March 2009, alleging their mother was killed because she was unable to see oncoming traffic due to high, uncut grass.

The trial of Zapf et al vs. Texas Department of Transportation began June 27, 2011, in Jefferson County 136th District Judge Milton Shuffield’s court and ended the following day.

Court records show Zapf was driving in Jefferson County on Aug. 20, 2008, when she attempted to make a left turn on Highway 347. She was allegedly unable to see the road due to tall, uncut grass in the median owned by Texas DOT and maintained by MD Johnson.

Jurors found that TxDOT was 90 percent negligent in causing the incident, assigning the remaining 10 percent to Zapf.

In it’s appeals brief, TxDOT asked, “Should a take nothing judgment be rendered, or the case dismissed, because TxDOT did not owe a duty in regard to the open and obvious obstruction of vision caused by the tall grass.”

Conversely, the Zapf family contended that the dangerous condition was not so “open and obvious” as to relieve TxDOT of its duty; that the deceased lacked actual knowledge of the condition; and that there is evidence suggesting TxDOT did possess actual knowledge of the dangerous tall grass, according to appeals briefs.

“We conclude that the evidence admitted in the Zapfs’ trial is legally insufficient to show that the Department had actual knowledge that tall grass had grown to a height to obstruct the vision of drivers using the median at issue,” writes Justice Hollis Horton in the court’s memorandum opinion.

“As a result, we … reverse the trial court’s judgment, and order the Zapfs’ action against the Department to be dismissed for lack of jurisdiction.”

According to the charge of the court, the jury awarded Hazel Zapf’s children – Richard Zapf, Gary Angelle, Lowell Angelle, Barbara Rogers and Tricia Tooley – $1 million for their mental anguish and loss of companionship.

An additional $145,000 was awarded for Hazel Zapf’s mental anguish, medical expenses and funeral costs.

Matthew C. Matheny of Provost Umphrey in Beaumont represents the Zaph family.

Texas Attorney General Greg Abott represents TxDOT.

Trial case No. D183-372

Appeals case No. 09-11-00446-CV

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