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Suing a Texas Governmental Entity for a Defective Guardrail

romania-highway-1469428In Texas Department of Transportation v. Kirk, the plaintiff sued several entities, including the Texas Department of Transportation (TxDOT), to recover compensation for injuries suffered when he lost consciousness and control of his vehicle on Hwy. 277. Before crashing the car, he started to suffer dizziness and blurred vision. When he lost consciousness, his car left the road and hit a guardrail, some of which came through the passenger side, causing injuries.

Later, the plaintiff claimed that the end terminal of the guardrail had an ET-Plus design, which was developed and sold by various defendants, although not TxDOT. It had been designed so that it would absorb collision impact. The plaintiff also claimed other parties had altered the design so that it didn’t function in the same way.

TxDOT filed a motion for summary judgment and to dismiss, arguing it had sovereign immunity. The motion was denied, but the trial judge gave no reason why. TxDOT appealed.

The appellate court explained that the doctrine of sovereign immunity protects the government from suit, except when the State has agreed to be sued. The plaintiff was required to allege facts that would show the court had jurisdiction over the case. The appellate court further explained that a defendant may file a motion to dismiss if it believes the plaintiff hasn’t provided facts to support jurisdiction. If there’s no evidence presented in connection with a motion to dismiss, the lower court will provide a ruling as a matter of law.

The legislature can waive sovereign immunity in certain circumstances through clear and unambiguous language. Under the Texas Tort Claims Act, section 101.021, there is a waiver of immunity when somebody suffers a personal injury or death caused by a condition or use of property if the governmental entity would be liable under Texas law, if it were a private citizen.

The State owes different duties depending on whether a premises defect or a special defect is at issue. With premises defects, the governmental entity owes to the plaintiff the same duty owed by a private person to a licensee on private property unless the plaintiff paid to use the property.

A property owner can’t hurt a licensee with willful, wanton, or grossly negligent acts, and the owner must use ordinary care to provide warnings or repair a dangerous condition about which the owner knows. However, this doesn’t apply to special defects, which include highway obstructions or excavations. In those cases, the governmental entity must use ordinary care to reduce or eliminate risks created by a dangerous condition about which an owner is or should be aware.

The plaintiff in this case had alleged that TxDOT had negligently or wrongfully installed the guardrail terminal such that it didn’t function as intended. The guardrail didn’t extrude in response to crashes. He claimed that the failure to install the system was the legal cause of his injuries.

The plaintiff didn’t plead either premises or special defects, but instead a claim for which immunity wasn’t waived. Governmental immunity isn’t waived if a claim is based on the government choosing not to perform a particular act or failing to make a decision on the performance or nonperformance of an act, when the law leaves performance up to the government’s discretion. The court ruled that the government’s design, upgrading, and placement of the guardrails involved its exercise of discretionary powers, and so the State remained immune from claims related to it. The trial court order was reversed.

If you are injured due to a dangerous condition on government property, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your premises liability case. Call our office for more information at 1-800-862-1260.

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