Justices say county not responsible for injury caused by floodgate in road

By Steve Korris | May 7, 2009

Justice Don Willett

AUSTIN – Denton County failed to secure a 17-foot floodgate arm that speared Rhiannon Beynon through a car, but according to the Texas Supreme Court the county doesn't have to pay her family for her injury.

Six Justices agreed on May 1 that under state law the arm did not meet the narrow definition of a special defect that would forfeit the county's immunity from liability.

They reversed appeals judges who defined the arm as "a condition that an ordinary user of the roadway would find unexpected and unusually dangerous."

The Justices didn't classify driver Mark Hilz as an ordinary user.

The tip of the arm was three feet from the road, and Hilz would have cruised past it if he hadn't swerved from an oncoming car.

Justice Don Willett wrote that "the arm was neither the condition that forced Hilz's car off the road initially nor the condition that caused the car to skid sideways and crash into the floodgate arm."

He wrote, "The injuries sustained by Rhiannon Beynon are unquestionably tragic; however, it is the province of the Legislature, not the courts, to prescribe the parameters of premise defect and special defect claims."

Justice Hariett O'Neill wrote in dissent, "It is hard to imagine anything more dangerous than a 17-foot metal pole pointing like a spear in the direction of oncoming traffic."

"In my view, vehicle operators do not cease to be ordinary users every time they veer onto a shoulder," she wrote.

The accident happened at night on an unlit two-lane county road, with Rhiannon in the back seat.

Hilz swerved and the right side tires dropped eight inches into gravel and grass. He jerked left and cleared the shoulder but he couldn't keep control and jerked right with the front tires dropping to the shoulder. The undercarriage caught the edge of the pavement and the car scraped sideways at a 45 degree angle.

The floodgate arm stopped the car, piercing Hilz's door and striking Rhiannon.

Doctors amputated her leg below the knee.

Parents Dianne and Roger Beynon sued Denton County on premises defect and special defect theories.

The county challenged jurisdiction on both theories. District Judge Dee Shipman upheld the challenge on premises defect, but denied it on special defect.

The Second District appeals court in Fort Worth affirmed Shipman's decision but the Supreme Court reversed it.

Willett wrote that the Texas Tort Claims Act doesn't define special defect but likens it to excavations or obstructions on the roadway surface.

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

He quoted a 1992 decision holding that conditions near a road count as special defects only if they pose a threat to ordinary users.

"The floodgate arm that injured Rhiannon Beynon is not of the same kind or class as an excavation or obstruction, nor did it pose a threat to ordinary users in the manner that an excavation or obstruction blocking the road does," Willett wrote.

Justices Nathan Hecht, Dale Wainwright, Scott Brister, Paul Green and Phil Johnson joined Willett's opinion.

Chief Justice Wallace Jefferson and Justice David Medina joined O'Neill's dissent.

O'Neill wrote, "The Court's conclusion that a driver was no longer an ordinary user because two of his tires left the roadway as a result of his efforts to escape a head-on collision is inconsistent with what objectively reasonable drivers do every day."

William Krueger III and Casey Erick represented Denton County. James Mitchell represented the Beynon family.

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