COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00175-CV
RICHARD BRUMFIELD APPELLANT
V.
TEXAS DEPARTMENT OF APPELLEE
TRANSPORTATION
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Richard Brumfield appeals the trial court’s order granting the
motion for summary judgment and plea to the jurisdiction of Appellee Texas
Department of Transportation (TxDOT). We will affirm.
In late June and early July 2010, TxDOT performed a “mill and overlay” to
repair cracks in the northbound service road near the entrance ramp to SH 360.
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See Tex. R. App. P. 47.4.
TxDOT milled out—or removed—the surface layer of the road on June 22 and 23
and completed the overlay—or packing of asphaltic material into the milled
area—on July 6 and 7. According to John Nolt, TxDOT’s crew leader, the depth
of the mill out was set not to exceed two inches, the difference in elevation
caused by the milling was beveled using universal patching material, and TxDOT
posted signs warning of uneven and grooved pavement during the interval
between when the mill out was performed and when the overlay was performed.
Had the depth of the mill out been three inches or more, TxDOT would have
instead performed a “mill and inlay”—a procedure in which TxDOT mills and lays
on the same day.
On June 27, 2010, at around 4:00 a.m.—after TxDOT had milled out the
service road but before it had performed the overlay—Brumfield turned the
motorcycle that he was riding onto the northbound service road of SH 360 and
headed towards the entrance ramp to the highway. When Brumfield began to
transition from the lower depth of the milled-out service road to the entrance of
SH 360 (which had not been milled out), he lost control of his motorcycle and
crashed. Brumfield later sued TxDOT to recover damages for his alleged
injuries, averring that the milled-out service road was a special defect or a
premises defect.
TxDOT filed a no-evidence motion for summary judgment and a plea to the
jurisdiction. It attached evidence to the motion and argued that its sovereign
immunity had not been waived. After Brumfield responded, TxDOT filed a reply
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that contained additional evidence that had not been included with its original
motion and plea, and it referred to its motion as a traditional and no-evidence
motion for summary judgment and plea to the jurisdiction.
In addition to Nolt’s affidavit testimony that the service road had been
milled out at a depth of no more than two inches, TxDOT’s jurisdictional evidence
included deposition testimony from Scott Jones, an assistant maintenance
section supervisor with TxDOT. Jones testified that while a mill machine can mill
up to twelve inches deep, the standard setting for a mill and overlay is two
inches. And, like Nolt, Jones opined that a mill and inlay would have been the
preferred procedure (as opposed to a mill and overlay) had the mill out exceeded
two inches in depth.
Brumfield testified in his deposition that he initially did not know what had
caused him to lose control of his motorcycle; he “was just going and . . . just fell
to the left.” Brumfield returned to the service road a day or so later and observed
that there was a difference in elevation between the service road and the
entrance to SH 360. When asked about the difference in elevation—whether it
was an inch and a half, two inches, two-and-a-half inches, three inches—
Brumfield said that he did not know.
Brumfield’s response also included deposition testimony from Andrew
Ganger. On June 23, 2010, four days before Brumfield’s accident, Ganger
crashed his motorcycle when he attempted to merge from the service road of SH
360 onto the entrance ramp to the highway. Like Brumfield, Ganger did not
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notice before his accident that the road had been “cut out.” Ganger recalled that
the difference in elevation between the service road and the entrance ramp was
about a half inch and that it was cut at about a forty-five degree angle.
The trial court granted TxDOT’s plea but later granted Brumfield’s motion
for new trial because “evidence and argument was filed after” the hearing on
TxDOT’s motion and plea, “and a new trial [would] allow proper consideration of
all evidence and argument before the Court.” The trial court reset and later
granted TxDOT’s motion for summary judgment and plea to the jurisdiction.
In his first issue, Brumfield argues that the trial court erred by granting
TxDOT’s plea to the jurisdiction because the condition of the service road at the
time of his accident constituted a special defect. Alternatively, Brumfield
contends that his jurisdictional evidence raised a genuine issue of material fact
regarding the elements of his ordinary premises liability claim that TxDOT
challenged in the trial court. TxDOT responds that a two-inch variation in road
surface elevation is not a special defect and that Brumfield failed to establish a
cause of action based on a premises-liability theory.
Governmental immunity from suit defeats a court’s subject matter
jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of
Transp. v. Jones, 8 S.W.3d 636, 638‒39 (Tex. 1999). If the evidence creates a
fact question regarding the jurisdictional issue, then the trial court cannot grant
the plea to the jurisdiction and the fact issue will be resolved by the factfinder.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227‒28 (Tex. 2004).
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The Texas Tort Claims Act (TTCA) provides a limited waiver of immunity to
suit for tort claims arising from special defects. Tex. Civ. Prac. & Rem. Code
Ann. §§ 101.021(2), 101.022(b) (West 2011). The TTCA likens special defects to
“excavations or obstructions on highways, roads, or streets.” Id. § 101.022(b).
The supreme court has described the narrow class of conditions contemplated by
section 101.022(b) as those that, because of their size or some unusual quality
outside the ordinary course of events, pose an unexpected and unusual danger
to ordinary users of roadways. Tex. Dep’t of Transp. v. Perches, 388 S.W.3d
652, 655 (Tex. 2012); Reyes v. City of Laredo, 335 S.W.3d 605, 607 (Tex. 2010).
The determination of whether a condition is a special defect is a question of law
for the court to decide. State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994).
The jurisdictional evidence regarding the depth of the mill out on the
service road is as follows: (i) Nolt testified that the mill out was no deeper than
two inches; (ii) Jones testified that the standard setting for a mill and overlay—the
procedure that TxDOT performed—is two inches; (iii) both Nolt and Jones
testified that TxDOT would have performed a different procedure, a mill and
inlay, had the depth of the mill out been three inches or more; (iv) Ganger
testified that the difference in elevation between the milled service road and the
entrance ramp was about a half inch; and (v) Brumfield did not know what the
difference in elevation was between the milled service road and the entrance
ramp. Taken together, the jurisdictional evidence regarding the depth of the mill
out ranged from a half inch to two inches. Brumfield appears to argue that the
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mill out could have been deeper, citing Jones’s testimony that the mill machine is
capable of milling up to twelve inches deep, but there is no evidence that TxDOT
removed anything more than the top two inches of the service road.
In City of Dallas v. Reed, the plaintiff sued the City to recover personal
injury damages from a motorcycle accident caused by a two-inch elevation
variance on the roadway as he changed lanes. 258 S.W.3d 620, 621 (Tex.
2008). The supreme court held that the two-inch difference in elevation between
the traffic lanes was not a special defect because (1) it was not in the same class
as an excavation or obstruction and (2) “there is nothing unusually dangerous
about a slight drop-off between traffic lanes in the roadway.” Id. at 622.
This case is on all fours with Reed. Brumfield crashed his motorcycle
when he encountered, at most, a two-inch variation in elevation between the
service road and the entrance to SH 360. Not only is the two-inch variation in
elevation between the service road and the highway entrance not in the same
class as an excavation or obstruction on a roadway, cf., Harris Cnty. v. Eaton,
573 S.W.2d 177, 178‒80 (Tex. 1978) (holding that a large hole ten inches deep
and nine feet wide covering ninety percent of the road’s width was a special
defect), but ordinary drivers like Brumfield should expect to encounter slight
variations on the road like the one at issue in this case. Brumfield attempts to
distinguish Reed by pointing out that the condition in that case was caused by
normal deterioration instead of construction maintenance, but a two-inch
variation in elevation is a two-inch variation in elevation, however it was caused.
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Brumfield argues that TxDOT conceded that the condition is a special
defect because it referred to the mill out during discovery as an “excavation,” but
a special defect exists when the legal requirements of the condition are met, not
when the term is uttered in the colloquial sense. Moreover, Morse v. State,
which Brumfield likens this case to, is inapposite because the drop-off between
the traffic lane and the shoulder of the highway that caused the plaintiff to lose
control of her vehicle was ten to twelve inches deep at its maximum depth and
six to eight inches deep where the plaintiff left the roadway—depths much
greater than the two-inch variation in elevation here—and because the evidence
was “somewhat overwhelming” that the drop-off presented an unusual or
unexpected danger, unlike the evidence of the elevation change in this case.
905 S.W.2d 470, 475 (Tex. App.—Beaumont 1995, writ denied).
We hold that the two-inch variation in surface elevation that Brumfield
encountered when he transitioned from the service road to the entrance ramp of
SH 360 is not a special defect. We overrule this part of Brumfield’s first issue.
If the two-inch variation is a premises defect, as Brumfield alternatively
argues, then TxDOT owed Brumfield the same duty that a private landowner
owes a licensee. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a); State Dep’t of
Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). That duty
requires that a landowner not injure a licensee by willful, wanton, or grossly
negligent conduct and that the owner use ordinary care either to warn a licensee
of, or to make reasonably safe, a dangerous condition of which the owner is
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aware and the licensee is not. Payne, 838 S.W.2d at 237. In determining
whether a premises owner has actual knowledge, courts generally consider
whether the premises owner has received reports of prior injuries or reports of
the potential danger presented by the condition. Reed, 258 S.W.3d at 622.
There is no evidence that TxDOT received a report about Ganger’s
accident or any other incident or warning involving the milled-out service road
before Brumfield’s accident. Nolt stated in his affidavit dated January 15, 2013, “I
have been informed that, four days before the Brumfield incident, another driver,
Ganger, on June 23, 2010, at 8:58 am, had also had an incident.” But this
temporally ambiguous statement is no evidence that TxDOT knew of Ganger’s
accident before Brumfield’s accident.
Brumfield argues that circumstantial evidence raised a fact issue about
TxDOT’s knowledge of the condition because TxDOT created the condition and
left it unattended until July 6, 2010. See Price Constr., Inc. v. Castillo, 147
S.W.3d 431, 438 (Tex. App.—San Antonio 2004, pet. denied) (Stone, J.,
dissenting). While it is undisputed that TxDOT created the condition, there is no
evidence that the one-half to two-inch variation in elevation between the service
road and the highway entrance was unreasonably dangerous. A condition is
unreasonably dangerous if it presents an unreasonable risk of harm. See
Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007). A condition
presents an unreasonable risk of harm when there is such a probability of a
harmful event occurring that a reasonably prudent person would have foreseen it
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or similar events as likely to happen. Seideneck v. Cal Bayreuther & Assoc., 451
S.W.2d 752, 754 (Tex. 1970).
Here, the elevation variation was so slight that neither Brumfield nor
Ganger noticed it when they drove through the area, and there is no evidence
that the newly exposed surface of the milled-out service road caused drivers any
problems. Nolt testified that TxDOT beveled the edge, and Ganger confirmed
that the variation was angled at about forty-five degrees. Thus, instead of
forming a ninety-degree angle with the entrance ramp, the variation was angled
or sloped to achieve a smoother transition between the surfaces for passing
motorists. Moreover, Brumfield’s argument that the condition presented an
unreasonable risk of harm is irreconcilable with our reasoning above that an
ordinary driver like Brumfield should expect to encounter slight variations on the
road like the one here; ordinary drivers should not expect to encounter
unreasonably dangerous conditions on the road. Although there may be
circumstances in which a two-inch mill out constitutes an unreasonably
dangerous condition, those circumstances are not present in the jurisdictional
evidence here.
There is no evidence that TxDOT had actual knowledge of an
unreasonably dangerous condition. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.022(a). Accordingly, we hold that the trial court did not err by granting
TxDOT’s motion for summary judgment and plea to the jurisdiction on Brumfield’s
premises defect claim. We overrule the remainder of Brumfield’s first issue.
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In his second issue, Brumfield argues that TxDOT improperly attempted to
shift the burden to him to disprove the applicability of TxDOT’s governmental
immunity defense. TxDOT’s motion for summary judgment had all the
characteristics of a traditional motion for summary judgment. See Surgitek,
Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (“[W]e look to the
substance of a motion to determine the relief sought, not merely to its title.”).
Moreover, the trial court granted Brumfield’s motion for new trial so that it could
properly consider all of the evidence and arguments presented by the parties,
including TxDOT’s evidence. If Brumfield’s assumption was correct—that
TxDOT attempted to shift the burden to him to disprove its immunity claim—then
the trial court would not have had to consider TxDOT’s evidence, but it expressly
did so. We overrule Brumfield’s second issue.
Having overruled Brumfield’s two issues, we affirm the trial court’s order
granting TxDOT’s motion for summary judgment and plea to the jurisdiction.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: May 29, 2014
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