In City of Denton v. Paper the Texas Supreme Court raised the bar a little higher for users of the public streets to recover for injuries resulting from city construction defects. The City of Denton Waste Water Department cut a city street and made a repair to a sewer line. After completing the repair the City filled the hole, removed the barricades, and left. While the City claims to have repacked the hole, the surface settled over two inches in the first week. About a week later Robin Paper was riding her bicycle when she struck the sunken area, pitched over her handlebars and sustained serious injuries. She sued the City pursuant to the Texas Tort Claims Act alleging that sunken area constituted a special defect under the Act for which the City was liable.
The Texas Tort Claims Act severely limits the liability of governmental units. The liability of a governmental unit regarding a public roadway defect generally depends on whether the defect is a general premises defect or a special defect under the terms of the Act. The liability of a governmental unit for a regular premises defect is limited to the liability of a licensee under Texas law. A landowner has a general duty to a licensee not to willfully or wantonly injure the licensee and to warn of defects of which the landowner has actual knowledge and of which the licensee has no knowledge. If a landowner has no knowledge of a defect then it simply has no duty to a licensee.
The Texas Supreme Court summarized Texas law regarding ordinary premises liability stating, “The Tort Claims Act provides that, in an ordinary premises liability claim, the governmental unit owes only the duty “that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” TEX. CIV. PRAC. & REM. CODE § 101.022(a). Under Texas law, a licensor of real property owes a duty not to injure the licensee by willful or wanton acts or omissions or gross negligence. State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). When the governmental unit has actual knowledge of a dangerous condition and the licensee does not, the government must either warn the licensee or make the condition safe. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).”
The burden is on the claimant to show actual subjective knowledge by the governmental unit of the defect. This burden has resulted in many governmental units taking great care not to document reports of defects until the repairs are made. Thus most claimants find themselves in a situation where they must prove that the defect constituted a special defect under the Act.
Special defects are essentially defects created by the governmental unit resulting in the governmental unit having superior knowledge of the defect as a matter of law. “In determining whether a particular condition is like an excavation or obstruction and therefore a special defect, we have mentioned several helpful characteristics, such as: (1) the size of the condition; (2) whether the condition unexpectedly and physically impairs an ordinary user’s ability to travel on the road; (3) whether the condition presents some unusual quality apart from the ordinary course of events; and (4) whether the condition presents an unexpected and unusual danger. The Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam) (citing York, 327 S.W.3d at 847).”
That the City failed to properly repack their excavation is evident in the fact that it almost immediately settled more than two inches. Yet the Court ruled that the City’s faulty construction resulting in a hole in the street did not constitute a special defect. The Court then went on to hold that the City had no knowledge of the dangerous condition that the City created and was therefore not liable under the Texas Tort Claims Act.
Has the Texas Supreme Court added a notice requirement to special defect cases?
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