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Road Management & Engineering Journal
Copyright © 1997 by TranSafety, Inc.
April 1, 1997
TranSafety, Inc.
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Making Intersections Safer for Pedestrians
Connecticut Truck-Mounted Attenuator Passed All Safety Requirements
Roadway Collapse Caused by Broken Water Main Was a "Special Defect": Texas City May Be Liable for Motorists' Injuries
Researchers Study the Walking Speeds of Older Pedestrians


















Roadway Collapse Caused by Broken Water Main Was a "Special Defect": Texas City May Be Liable for Motorists' Injuries

Oliver and Marla Stambaugh suffered injuries when their vehicle dropped into a crater in the roadway caused by a broken underground water main. They felt the broken main and resulting crater constituted a "special defect," and the City of White Oak should have foreseen the defect would cause a hazardous condition for ordinary users of the roadway. The Stambaughs sued the City. The 124th Judicial District Court of Gregg County granted the CIty sovereign immunity on the grounds that the collapsed road was a "premise defect," and, according to the trial court, the City was immune from liability because it had no actual knowledge of the collapse. The Stambaughs appealed. The Court of Appeals of Texas in Tyler agreed with the plaintiffs that the collapse created a "special defect." Concluding that a question remained as to whether the City could reasonably have known of the collapse, the appellate court reversed and remanded.

THE CRASH

At 4:00 p.m. on April 29, 1989, Oliver Stambaugh drove a pickup truck on Whatley Road. With his wife, Marla Stambaugh, as a passenger, he came to what seemed a large puddle of water in the road. Stambaugh began driving across the puddle, and the truck dropped into a crater about fifteen feet wide and ten feet long. Both suffered injuries as a result of the crash.

Evidence did not show if the crater already existed when the Stambaughs' truck drove into the puddle or if the weight of the truck caused the collapse. In either case, the roadway collapsed because an underground water main had broken, and the subsurface foundation for the roadway had washed away.

TRIAL COURT DECISION

In their argument to the trial court, the plaintiffs said sovereign immunity was not available to the City under the Texas Tort Claims Act. They pointed to the waiver of immunity granted for roadway-related crashes caused by "special defects." tex.civ.prac. & rem. code  101.22 states:

(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets. . . .

The court further defined the difference between premise and special defects. If the crater were "a premise defect, the Stambaughs would have had only the rights of licensees, and, to prevail, would have had to prove that the City had actual knowledge of this condition; if, on the other hand, this condition were a special defect, they would have the status of invitees, and could prevail by showing merely that the City reasonably should have known of this condition. State Dept. of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992)."

The City maintained that the crater caused by the broken water main was a premise defect and only created duty on their part as owed to a licensee. Moreover, the City argued that the Stambaughs themselves admitted the City did not and could not have had knowledge of the hazardous condition. Since the trial court accepted the City's contention that the crater was a premise defect, the court gave the plaintiffs sixty days to provide evidence that the City had actual knowledge of the hazardous condition. The court granted the City final summary judgment when the Stambaughs "elected to stand on their pleading."

APPEAL COURT DECISION

The Stambaugh's appeal restated the first six points of their argument and claimed that the trial court had erred in defining the crater as a premise defect. Therefore, the plaintiffs said the court had also erred in applying the stricter standards of knowledge to the case. The City countered that even if the appellate court defined the crater as a special defect, the City had met the conditions necessary to give them immunity from claims the Stambaughs could make as invitees rather than licensees. Specifically, the City did not know nor should they reasonably have known of the collapse.

The appellate court first addressed the question of law concerning whether the crater was a premise or special defect. According to the court, legal precedent had established that examples of special defects (i.e., "excavations or obstructions") did not limit the category to defects that the public entity itself created through highway work or repair. This court accepted the interpretation of special defects given in County of Harris v. Eaton (573 S.W.2d 177, 179 (Tex.1978)) which concluded:

It is our view that an excavation or obstruction need not have been created by the governmental unit itself. Nothing in the statute expresses that idea. . . . Whether created by the governmental unit, by natural forces, or by third persons, the dangerous condition on the roadway is the same. (emphasis added).

Further interpretation provided that an excavation or obstruction was "an unexpected or unusual danger to ordinary users of roadways" (State Dept. of Highways v. Kitchen, 867 S.W.2d 784, 786 (Tex.1993)). Thus the court concluded in Kitchen that an icy bridge was not a special defect, since the ordinary user should expect ice on a bridge. A poorly placed and hidden off-road culvert was also not a special defect, since a defect not on the roadway would not present a hazard to the ordinary user of the roadway (State Dept. of Highways v. Payne, 838 S.W.2d 235, 239 (Tex.1992)).

While the City admitted the crater was "an unexpected and unusual danger to ordinary users of a roadway," they contended the Stambaughs created the danger when the weight of their pickup collapsed the weakened roadway. The court rejected this argument, saying that the defect may have been a "hidden defect," but the character of the defect did not depend on the length of time it had existed.

The appellate court, therefore, concluded the crater was a special defect; they sustained the first six points of the plaintiffs' appeal.

Given the appellate court's special-defect decision, the City needed to prove it could not reasonably have known of the hazard the defect represented for the ordinary user of the roadway. The City's brief on appeal had claimed the crater was a premise defect or, in the alternative, it was a special defect and the City had met the stricter standard of care required for a special defect. However, the City's motion for summary judgment did not address the alternate defense that would apply if the appellate court found the crater to be a special defect.

Referring to McConnell v. Southside School Dist. (858 S.W.2d 337, 341 (Tex.1993)), the court noted that its consideration of the City's motion for summary judgment could include only grounds specifically presented in the motion. The court could not rely on other evidence. The court, therefore, concluded:

Because issue was never joined by the parties on this question of whether the City could have reasonably known of this hazard as a special defect, we are constrained to hold that the judgment rendered below cannot be upheld on that basis. The City's cross point of error is overruled.

The Court of Appeals of Texas reversed the trial court and remanded this case for further proceedings.

[For further reference, see Stambaugh v. City of White Oak (Tex.App.--Tyler 1994) in West Publishing Vol. 894 South Western Reporter, 2d Series, 818]

Copyright © 1997 by TranSafety, Inc.


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