Potholes, funny signs and a bump on the head all part of recent Texas SC decision

By Steve Korris | Mar 4, 2009

Photo included in Justice Hecht's dissenting opinion. He gives attribution to supanet.com.

AUSTIN – Years of muscling 18 wheels across three miles of dirt road to a sand pit didn't warn trucker David Perry to watch out for potholes and neither did speed limit signs all along the road, the Supreme Court of Texas ruled on Feb. 27.

Six justices affirmed a Liberty County jury verdict holding Dolen Sand Pit owners partly responsible for Perry bumping his head on the roof of his rig at a cattle crossing.

"If a duty is owed, an adequate warning is required," Justice Paul Green wrote.

Dissenting Justice Nathan Hecht heaped cartoon humor on the decision.

"So should warning signs be site specific," he asked, "one per pothole?"

He pasted into the dissent a pothole symbol with the international "No" symbol above it.

"Scores, maybe hundreds, would have been required on this one short road alone," Hecht wrote.

He also pasted into the dissent a photograph he pulled from the Internet. It showed a road among trees and a yellow diamond sign that read, "Caution no warning signs."

He wrote, "This probably would not satisfy the Court."

Prior to the big bump, Perry drove Campbell Ready Mix trucks for seven years. He regularly hauled sand and gravel from the Dolen pit to a concrete plant an hour away.

Signs on the pit road set limits of 15 and 25 miles an hour.

As Perry drove to the pit for the fourth time one day, moving 10 to 15 miles an hour, he hit a pothole at the cattle crossing.

His head struck the roof. He dropped back in his seat and radioed to Campbell Ready Mix driver Jeff Casey, close behind.

They continued to the pit. They loaded, weighed and left.

Several weeks later Perry reported the injury. Three days before a two year statute of limitations would have run, he sued Dolen Sand Pit owner TXI Operations.

Perry claimed TXI violated its duty to warn him of danger, and TXI argued that he knew the danger and drove too fast.

Jurors held Perry and TXI equally liable and set damages at $387,477.35.

Liberty County District Judge Chap Cain assessed half the damages against TXI.

TXI appealed, arguing that speed limit signs adequately warned Perry.

The Ninth District appeals court in Beaumont affirmed the verdict.

Next, TXI's argument failed at the state Supreme Court.

Justice Green wrote that a speed limit sign "neither informed the driver of road hazards generally, nor did it identify the particular hazard that TXI now says the sign was meant to warn against."

He wrote, "The inadequacy of the sign is supported by the evidence that Perry was following the sign's instruction at the time of his injury," he wrote.

"Of course, an alternative to providing an adequate warning would have been for TXI to repair the pothole," he wrote.

Chief Justice Wallace Jefferson and Justices Harriet O'Neill, Dale Wainwright, Scott Brister and Phil Johnson agreed.

Hecht argued in dissent that prior to Perry, no one was injured. "Scores of truckers crossed the cattle guard thousands of times without injury," he wrote.

"Potholes pock the surface of the civilized world," he wrote.

If potholes posed an unreasonable risk of harm, he wrote, "whole swaths of civilization would have to be closed off to human traffic."

He wrote, "Across the planet, ground transportation would be brought to a halt. Commerce would cease."

"As a practical matter, the warnings TXI gave were the only ones it could give: slow down to a speed that allows actual road conditions to be assessed," Hecht wrote.

If warnings must be given, he wrote, owners should be told what is adequate. "On this rather important subject the Court offers nothing helpful," he wrote.

Justices David Medina and Don Willett joined Hecht's dissent.

Brett Thomas, Marc Henry and Jeffrey Roebuck represented Perry. Zeb Zbranek represented TXI.

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