dissenting to denial of motion for reconsideration en banc.
I respectfully dissent from the denial of the appellees’ motion for reconsideration en banc. I believe the majority opinion misapplies both the applicable standard of review and the law.
In considering a legal sufficiency challenge, we consider only the evidence favorable to the decision of the trier of fact, and we disregard all evidence and inferences to the contrary. See Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 21 (Tex.App.-San Antonio 2000, no pet.). If more than a scintilla of evidence supports the jury’s finding, the legal sufficiency challenge fails. See Kindred, v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Garcia, 30 S.W.3d at 21. Appellate courts are required to consider the evidence and inferences as they tend to support the verdict. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990).
In holding that the evidence is legally insufficient to support the jury’s finding that Price had actual knowledge of an unreasonably dangerous condition at the accident cite, the majority cites only a portion of the Texas Supreme Court’s holding in Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992). The portion of the Keetch decision cited by the majority recognized that creating a condition that poses an unreasonable risk of harm does not establish knowledge as a matter of law. See id. at 265-66. The portion of the Keetch decision that the majority fails to recognize, however, is that a jury is entitled to draw an inference of actual knowledge from evidence that a defendant created the condition. In analyzing Coffee v. F.W. Woolworth Co., the Texas Supreme Court acknowledged in Keetch, that the defendant’s creation of the condition “was circumstantial evidence of knowledge.” 845 S.W.2d at 265-66 (citing Coffee v. F.W. Woolworth Co., 536 S.W.2d 539 (Tex.1976)); see also Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex.App.-Texarkana 1998, no pet.) (recognizing that if owner/operator created a condition that posed an unreasonable risk of harm, that fact alone could authorize a jury to find an inference of knowledge); Mitchell v. City of Dallas, 855 S.W.2d 741, 749 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994) (same).
In an unpublished opinion, the Dallas court applied this permissible inference rule in a construction context. See Total Petroleum, Inc. v. Cater, No. 05-98-00702-CV, 2000 WL 1048510, at *4 (Tex.App.Dallas July 31, 2000, pet. denied) (not designated for publication). In that case, the court noted that the plaintiff showed that the defendant “authorized the construction work and permitted and maintained the construction area in such a manner that cement dust and other debris was deposited on the walkway. This alone is sufficient evidence to charge [the defendant] with knowledge of the dangerous condition on the walkway.” Id. The court concluded, “Knowledge of the dangerous condition may be inferred from [the defendant’s] role in creating the hazard.”
In this case, Price’s superintendent admitted that Price was responsible for en*439suring that all of the traffic control devices were not confusing to the average motorist. The appellees’ expert testified that Price was responsible for providing and maintaining positive guidance for drivers.
Several witnesses testified that the lanes at the accident site were not properly marked or that there were no markers of any kind. Melva de Hoyos, who was driving beside Castillo immediately before the accident, testified that she had difficulty during the construction process determining which lane she was supposed to drive in because the lanes kept changing. De Hoyos stated that she did not see clear markings in the road to show where the lanes were supposed to be. De Hoyos stated that she was even unable to determine from pictures taken the day after the accident where the lanes were. De Hoyos did not see any barrels or vertical panels separating the lanes. Another witness, Santiago de la Garza, stated that the lanes were not clearly marked and “there were no markers or any kind of indication for [him] to know” where the lanes were. Police Chief Juan Antonio Castañeda also testified that the markings were insufficient, stating, “And ‘markings,’ I’m referring to the yellow striping — the white striping or do not pass or double yellow line, and now they’re accustomed to putting the reflector buttons, amber-colored lights, you put on the highway, you know. I didn’t see any of those, the reflector buttons.” Furthermore, the investigation report prepared by the Texas Department of Public Safety (“DPS”) lists “center stripe or divider” as a traffic control factor that contributed to the accident. The investigating officer, Trooper Marvin Richardson, gave a statement in which he stated, “Because, like I said, there was really no — no marking out there as far as designating the lane.” Even Price’s superintendent admitted that the old painted yellow center line had not been “obliterated” as it should have been. Finally, the appellees’ expert testified that Price failed to place reflective buttons designating the center line and failed to provide markings to establish the road edge. In addition to this testimony, the jury had pictures of the accident site taken the day after the accident from which the jury could determine whether the traffic control devices were adequate.
Because Price was solely responsible for providing and maintaining the traffic control devices, Price created the dangerous condition by failing to provide and maintain adequate lane markings. Accordingly, the jury was entitled to infer that Price had actual knowledge of the condition it created.
Viewing the evidence and inferences in the light most favorable to the jury’s verdict, and disregarding all contrary evidence and inferences, Price was responsible for creating the inadequate lane markings, and the jury was permitted to infer that Price had actual knowledge of the condition it created. Because the majority holds to the contrary and fails to grant the appellees’ motion for reconsideration en banc, I respectfully dissent.