dissenting.
I respectfully dissent.
Turvey was injured when his mail truck struck a hole which was 18 inches deep and 2½ feet wide and which extended halfway across the road. When it struck the hole, Turvey’s vehicle came to an immediate stop and stayed there. Although he was wearing his seat belt, Turvey sustained a broken jaw, a deep cut on his chin, and 13 or 14 broken teeth.
In County of Harris v. Eaton, 573 S.W.2d 177 (Tex.1978) we held that a similar hole constituted a special defect under the Texas Tort Claims Act. See Tex.Rev.Civ.Stat. Ann. art. 6252-19, § 18(b) (Vernon).1 We held that when the obstruction or defect in the street is of such a size or nature that it creates a dangerous condition, it is a special defect under the Act. County of Harris v. Eaton, supra, at 179-80.
The majority relied on the general statement in § 18(a) of the Act which provides that the Act does not apply to a tort committed by a municipality acting in a proprietary function. Section 18(b) of the Act, however, specifically creates liability for special defects for all units of government:
As to the premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property . Provided, however, that the limitation of duty contained in this subsection shall not apply of the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets . (emphasis added).
Cities are included in the definition of unit of government under § 2(1) of the Act.
The special defect provisions of the Act are intended to provide protection to motorists and to create liability on all units of government that negligently fail to warn of the danger created by a special defect. Section 18(b) should be liberally construed to achieve this purpose. See § 13. Therefore, I would hold that the Tort Claims Act creates liability for all special defects regardless whether the duty to warn of the defect would have traditionally been considered a proprietary function.
In County of Harris v. Eaton, supra, at 180 we said:
The proviso of section 18(b) was meant to enlarge the liability in some instances by imposing the duty to warn when there was a special defect.
If the defect in the street which caused Turvey’s injuries constituted a special defect, the city is liable under the Act for failing to warn of the defect’s existence. *521County of Harris v. Eaton, supra; City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.).
Turvey got a jury finding that the obstruction in question was a special defect and a finding that the city had actual notice of the material facts of Turvey’s accident and injuries. The city does not attack the submission of the special issues to the jury or complain that there is no evidence to support these findings.
I would reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
POPE and CAMPBELL, JJ., join in this dissent.
. All statutory references are to the Texas Tort Claims Act.