Tex. Dep't of Transp. v. Jackson ex rel. Husband
| Decision Date | 15 February 2017 |
| Docket Number | No. 08-15-00045-CV.,08-15-00045-CV. |
| Citation | 528 S.W.3d 598 |
| Parties | TEXAS DEPARTMENT OF TRANSPORTATION a/k/a TXDOT, Appellant, v. Martina JACKSON, Individually and on behalf of her Husband, Keith Jackson, Deceased, and Carly Rose Jackson, and Lara Marie Jackson, Appellees. |
| Court | Texas Court of Appeals |
David B. Strain, Randy Hill, for Texas Department of Transportation/State of Texas
Jeffrey B. Pownell, James F. Scherr, for Jackson, Martina
Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., not participating
At just past midnight on a windy evening in El Paso, Keith Jackson was riding his motorcycle on U.S. Highway 54. As he took an exit ramp, he struck a Texas Department of Transportation sign that had blown onto the roadway. Sadly, Jackson was killed. In this case, we are asked to decide if Jackson's wrongful death beneficiaries presented legally sufficient evidence to support a jury finding in their favor that TxDOT knew or should have known of the hazard, and failed to take appropriate action as would any other landowner.
There is little dispute that on the night of the accident, TxDOT did not learn that the sign had blown onto the roadway in time to prevent Jackson's death. That same sign, however, was broken nine days before and TxDOT tried to fix it, perhaps ineffectually. We view the question as whether notice of the hazard nine days earlier, coupled with some evidence of an ineffectual repair, satisfies the notice element for a premises defect claim. Concluding that there was legally insufficient evidence of notice, we reverse and render.
U.S. 54 is a multi-lane highway that runs north-south through El Paso. To mark the Diana Avenue exit, TxDOT installed a sign that sits just off of the roadway. The exit sign itself is approximately five feet by six feet. The sign is secured to two posts that extend to a concrete base. Each of the posts comes in two parts. The bottom part is called the "stub post" and it is bolted onto the concrete base. The top part of the post is affixed to the sign, and is called appropriately enough, the "sign post." Both the stub post and sign post are I-beams in their appearance, and at one end have a "fuse plate." The fuse plates have holes through which bolts will fit. The sign post connects to the stub post by placing the fuse plates together, aligning the holes, and securing the plates with four bolts.
The fuse plates are designed to break away if subjected to sufficient force, such as a vehicle striking the sign. This minimizes the risk of injury to a driver who runs into a standing sign. But the flip side of the design is that the sign becomes susceptible to damage from other forces, such as strong winds. The rated wind load for the sign post structure is 80 miles per hour.
A new sign was placed at the Diana exit in October 2008 after a motorist had struck the prior sign. Some six months later, on March 30, 2009, high winds broke a number of signs on U.S. 54. A TxDOT crew noticed that the Diana exit sign was not level and they stopped to inspect it. Two of the fuse plates on one of the leg posts had broken. The two broken fuse plates were on the same post, so the sign was still secured to the other leg post and was still standing erect. The crew replaced all of the fuse plates as well as the nuts and bolts on the fuse plate assemblies. The TxDOT workers would have tightened the nuts and bolts on the fuse plates by hand using a wrench. A loose nut and bolt is a particular problem for highway signs. The constant vibration from road traffic and winds will cause a loose nut to become fatigued such that it can no longer provide sufficient clamping force to support the heavy highway signage.
For certain applications, TxDOT sign crews use a torque wrench to tighten nuts and bolts. A torque wrench allows the nut to be tightened to a specific numerical pressure setting. For instance, the bolts securing the stub post to the concrete base would have been tightened using a torque wrench to 200 inch pounds. But TxDOT policy does not require the use of a torque wrench for securing the fuse plates. Instead, the crew would hand-tighten the nuts with a wrench and then the leader of the sign crew would stand away from the sign to make sure it was sitting level. He would also check the level with a mechanical device as well. He believed that an unlevel sign was the tell-tale indicator for any bolts not tightened down correctly. For the March 30, 2009 repair, the crew leader inspected the repaired sign and found it level.
The accident giving rise to this litigation occurred on April 9, 2009. At 12:01 p.m., a 911 operator received a call that a street sign was in the lane of traffic on the Diana exit ramp from U.S. 54. The downed sign was the same sign repaired some nine days earlier. The fuse plates on one of the posts had broken. The sign was therefore held up by only one post and in the high winds, the remaining post had twisted such that part of the sign had swung out and into the exit ramp. A TxDOT document estimated the winds were blowing forty to sixty miles an hour that night while National Weather Service data reported winds at 33 miles per hour at midnight.
Similar 911 calls reporting the downed sign were made at 12:03 p.m., 12:08 p.m., and 12:10 p.m. One caller prophetically warned that it was going to kill somebody if they ran into it. Thirteen minutes after the first call, an animal control officer called to report Jackson's accident. A police officer arrived at the scene at 12:16 p.m. and found Jackson's motorcycle and later his body. Jackson was pronounced dead at the scene.
Jackson's wife and children filed suit against several entities, including TxDOT. By the time of trial, only TxDOT and a bolt seller, Screw Products, Inc., were still in the case. One of the Jacksons' theories against TxDOT focused on the repair to the sign nine days before Jackson's accident. They claimed that that the fuse plate nuts and bolts should have been tightened with a torque wrench, which allows for a specific torqueing pressure, rather than merely hand tightening the nuts and bolts with a wrench. The failure to do so, they claimed, prevented the two fuse plates from forming one monolithic structure. In that event, inordinate stress applied to one of the fuse plates causes it to fail.1
The Jacksons also pursued a claim against the Screw Products, Inc., whom they allege distributed the bolt. The Jacksons' expert opined that the bolt itself was defective, which caused it to fail. The expert specifically contended that a defect in the threads were such that the nut could not be sufficiently tightened to apply the correct clamping force.
The jury failed to find that bolt had been sold by the Screw Products, Inc., or that the bolt itself was defective (or if defective, that it was the producing cause of the accident). The jury did find that TxDOT was negligent and awarded substantial damages that the trial court reduced to $250,000 which is the statutory maximum that can be assessed against TxDOT for this claim. See TEX.CIV.PRAC. & REM.CODE ANN. § 101.023(a) (West 2011). The trial court overruled TxDOT's motion for directed verdict, and post-trial motion for judgment in its favor. Those motions asserted in part that there was legally insufficient evidence to show that TxDOT had any notice of the defective sign in time to prevent this accident.
A claim against TxDOT for a defect in highway signage requires us to explore both the law of sovereign immunity and premises liability. Sovereign immunity protects the State against lawsuits for money damages, unless the State has consented to suit. See Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 655 (Tex. 2008) ; Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 224 (Tex. 2004). TxDOT is a governmental entity protected by sovereign immunity. See Tex. Dep't of Transp. v. Garza , 70 S.W.3d 802, 806 (Tex. 2002). The Texas Torts Claim Act ("TTCA") establishes a limited waiver of this immunity, however, and authorizes suits to be brought against governmental units in certain narrowly-defined circumstances. TEX.CIV.PRAC.&REM.CODE ANN. § 101.021 ; Tex. Dep't of Criminal Justice v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). Sovereign immunity includes two distinct principles, immunity from suit and immunity from liability. Texas Dept. of Transp. v. Jones , 8 S.W.3d 636, 638 (Tex. 1999). Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. Id . The TTCA creates a unique statutory scheme in which the two immunities are co-extensive. Miranda , 133 S.W.3d at 224.
The TTCA waives those two immunities for claims based on a premises defect. Miranda , 133 S.W.3d at 225. Specifically, Section 101.021 provides:
TEX.CIV.PRAC.&REM.CODE ANN. § 101.021. Generally, a governmental unit owes a claimant only the duty that a private person would owe to a licensee on private property, unless the claimant is paying for use of the property. Id . at § 101.022(a). A private landowner cannot injure a licensee through willful, wanton, or grossly negligent conduct and must also make safe a dangerous condition of which the owner is actually aware but the licensee is not. State Dep't of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992).
The duty is different, however, when the case involves a "special defect." For special defects, the governmental unit owes the claimant the same duty as a private person would owe to an invitee . TEX.CIV.PRAC.&REM.CODE ANN. § 101.022(b) ; Payne , 838 S.W.2d at 237. The TTCA does not define a special defect, but instead "likens it to ...
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