In a Texas appellate case, two people sued Austin Energy and the City of Austin under the Texas Tort Claims Act for injuries suffered in a motor vehicle accident they claimed was due to a special defect. The two plaintiffs were riding bikes in the bike lane in the city during midday. As they came to an intersection, they came to a part of the bike lane that was partially covered by overgrown vegetation coming from a home.
The two stopped in the shade of the overgrown vegetation to drink water. Soon thereafter, a driver in a car drove across the solid white lane into the bike lane and hit the plaintiffs. They were hurt and had to go to the hospital by ambulance. The driver told the police she didn’t see the plaintiffs and didn’t know if the sun was in her face, even though the sunlight wasn’t coming from the direction she was facing.
The plaintiffs claimed that the overgrown vegetation was a special defect, and the city failed to maintain the right of way and keep it free from such obstructions. The city claimed it kept its immunity because the vegetation didn’t count as a special defect, and there was no way to amend the pleadings to establish a defect.
The city moved to dismiss the case with a Plea to the Jurisdiction and Motion for Summary Judgment that included photographs and deposition excerpts. This motion was denied, and the city appealed. The appellate court explained that the burden was initially on the city to present evidence to support its plea. The court didn’t have subject matter jurisdiction if there was governmental immunity that hadn’t been waived.
There was a limited immunity waiver for premises defects and special defects under Tex. Civ. Prac. & Rem. Code §§ 101.022(a) and (b). Premises defects are dangerous conditions coming from the conditions of the premises. Special defects are a set of premises defects and include conditions such as road obstructions and excavations. In Texas, whether a condition is a special defect or a premises defect determines the visitor’s status and the duty of care owed to the visitor by the governmental entity.
When the claim arises from a special defect, the entity owes the plaintiff the same duty of care that a private property owner owes an invitee. The governmental entity must use ordinary care to reduce a danger of which it knew or should have known. However, if the condition is classified as a premises defect, the governmental entity owes the duty of care owed by a private property owner to a licensee. This duty mandates that the city not hurt the licensee through grossly negligent, wanton, or willful actions and use ordinary care to either make the area reasonably safe or warn of a hazard of which the licensee didn’t know but the city did.
The city claimed the vegetation wasn’t a special defect. To determine whether it was a special defect, a court considers its size, whether it physically impaired the ability to drive, whether it had an unusual quality different from the ordinary course of events, and whether it presented an unusual danger. The appellate court reasoned that the driver had crossed the solid white lane and driven into the bike lane, so she wasn’t an ordinary user of the bike lane. Therefore, the vegetation wasn’t an unusual danger that impeded the bicyclists and couldn’t be considered a special defect.
The city also argued that since the bicyclists were aware of the vegetation and had ridden their bikes past it previously, there was no premises defect. The bicyclists had consciously chosen to stop under the vegetation, so they couldn’t prove they didn’t have knowledge of the hazard. The trial court’s order was reversed.
If you are injured on somebody else’s property, you should consult a Texas attorney with experience in premises liability cases to seek a favorable outcome. Consult the experienced San Antonio attorneys at Carabin Shaw for more information at 1-800-862-1260.