State Dept. of Highways and Public Transp. v. Kitchen
| Decision Date | 08 December 1993 |
| Docket Number | No. D-3258,D-3258 |
| Parties | STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Petitioner, v. Betty Lou KITCHEN and Charles Don Richards, Respondents. |
| Court | Texas Supreme Court |
Mark Heidenheimer and Dan Morales, Austin, for petitioner.
Emmett Cole, Jr., Victoria and Jay L. Winckler, Austin, for respondents.
ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
The Per Curiam Opinion delivered on March 24, 1993 is withdrawn and the opinion of this date is substituted therefor.
Plaintiffs in this case recovered damages against the State Department of Highways and Public Transportation for injuries resulting from a motor vehicle accident on an icy bridge. A closely divided court of appeals sitting en banc affirmed the judgment of the trial court, holding that an icy bridge is a special defect within the meaning of TEX.CIV.PRAC. & REM.CODE § 101.022. 840 S.W.2d 505. We disagree with the appeals court and reverse its judgment. Because there is no other basis to support plaintiffs' recovery, we render judgment that plaintiffs take nothing.
Calvin Kitchen was driving his pickup across a bridge early on a cold January morning when the vehicle skidded out of control on a patch of ice and collided with an oncoming truck. Kitchen was killed, and his passenger, Charles Richards, was injured. A standard "Watch for Ice on Bridge" sign with a warning light was posted before the bridge. The sign could be folded open or shut, and it had been open with the light flashing for the three days immediately prior to the accident. The day before the accident, despite the persistence of freezing, wet weather, the Highway Department folded up the sign based upon National Weather Service forecasts of warmer, drier weather for the next day. The day of the accident, the State dispatched crews to reopen the signs, but when the accident occurred the sign at the bridge had not been reopened.
Kitchen's widow and Richards sued the State for damages, alleging that the ice on the bridge was either a premise defect or a special defect, and that the State breached its duty to warn the travelers of the condition. The trial court submitted questions to the jury relating to both the premise defect and special defect theories of liability. One difference between these two theories is that liability for a premise defect requires a finding that the State actually knew of the dangerous condition. State Dept. of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992). The jury found that the State's negligent maintenance of the highway was the proximate cause of Kitchen and Richards' injuries, and that the ice on the bridge was a dangerous condition which the State negligently failed to make safe. The jury refused to find, however, that the State had actual knowledge of the dangerous condition prior to the accident, that the State failed to correct the sign within a reasonable time of actual notice, or that the State was grossly negligent. The jury also refused to find that Kitchen had actual knowledge of the presence of the ice, or that he was negligent in any respect. The trial court rendered judgment for the plaintiffs.
Absent a finding that the State knew of the...
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