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Is a Gap Between the Cattle Guard and the Road a Special Defect in Texas?

cowGonzalez v. Bandera County arose when the plaintiff was thrown from his motorcycle on a Texas public road while crossing a cattle guard in 2013. While crossing the cattle guard, which was maintained by Bandera County, he lost control of the vehicle and crashed.

The plaintiff filed suit against the county and others, claiming that the cattle guard presented an unreasonably dangerous risk of harm, due to an unreasonably dangerous difference in height between the paved road and the cattle guard. He also claimed that bars of the cattle guard weren’t welded together appropriately, such that there were sharp edges exposed in a gap. He also claimed that there were no signs warning that a cattle guard was coming.

The county filed a plea to the jurisdiction and argued it had sovereign immunity from suit. The court granted this plea. The plaintiff appealed.

The appellate court explained that governmental entities usually have sovereign immunity from suit. Under the Texas Tort Claims Act, the immunity is waived when someone suffers personal injuries caused by a condition of real property in situations in which the governmental entity would be liable under Texas law if it were a private individual. The immunity is waived when someone is injured due to property defects and special defects.

The plaintiff argued that the cattle guard was either a special defect or a property defect. The duty owed by the county, if any, depends on the nature of the defect. The appellate court explained that whether a condition is a special defect is a legal question. What counts as a special defect is undefined, but generally it refers to a condition such as an obstruction on the road or an excavation. The Texas Supreme Court looks at how big it is, whether it unexpectedly and physically prevents the ordinary user from traveling on the road, whether it presents an unusual quality different from the usual course of events, and whether it presents an unusual danger.

The plaintiff claimed there was an unreasonably dangerous drop when moving from the paved road to the cattle guard, but he didn’t back up this claim with evidence. The court noted that the Texas Supreme Court had held that a two-inch drop off wouldn’t be considered in the same category as an obstruction, and ordinary drivers would have to expect slight variations in road surfaces. Therefore, it held that the drop off didn’t count as a special defect.

The plaintiff also alleged that the cattle guard bars weren’t welded, which resulted in sharp edges being exposed. The appellate court noted that the gaps only occurred in the center of the road and that a road superintendent for the county had inspected them. The appellate court found this gap was also not a special defect, since the gaps were in the center of the road, and a motorcyclist wouldn’t ordinarily drive down the center of the road while driving.

The court explained that in the usual premises liability claim, the government entity owes the plaintiff the same duty that a private property owner owes to licensees on private property. This is the duty not to injure a licensee through gross negligence, or willful or wanton omissions or acts. In this case, Bandera County claimed that it did not have actual knowledge of the gaps. The court explained that generally a property owner must receive reports of injuries or potential dangers in order to have actual knowledge sufficient to be grossly negligent or worse. There were prior repairs, but this was not enough to show actual knowledge of the condition. The appellate court affirmed the ruling.

If you are injured on somebody else’s property, you should consult an experienced Texas attorney with experience in premises liability cases to seek the best possible outcome. Consult the experienced San Antonio attorneys at Carabin & Shaw for more information at 1-800-862-1260.

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