Texas Supreme Court Declines To Waive Sovereign Immunity In Premises Defect Case

• Published date: 12 April 2023
• Subject Matter: Litigation, Mediation & Arbitration, Sovereign Immunity: Public Sector Government, Trials & Appeals & Compensation
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Ms Starr Forster and Joelle Nelson

Houston, Texas (March 30, 2023) - The Supreme Court of Texas recently upheld a Thirteenth Court of Appeals' judgment finding that the plaintiffs in a premises defect case brought against the Texas Department of Transportation (TxDOT) had failed to raise a fact issue regarding the creation of a dangerous condition and, consequently, failed to establish waiver of the defendant's sovereign immunity. Daniel K. Christ and Nicole D. Salinas v. Tex. DOT, et al., No. 21-0728, 66 Tex. Sup. Ct. J. 306, 2023 Tex. LEXIS 128, at *1 (Feb 10, 2023).

Background

Plaintiffs Daniel Christ and his wife, Nicole Salinas (the Christs), were riding their motorcycle through a construction zone when they collided with a vehicle that crossed into their lane. TxDOT's traffic control plan for the related construction project called for the placement of concrete barriers between opposing travel lanes; however, once construction on the project began, TxDOT's contractor determined there was not enough space for the concrete barriers and revised the traffic control plan to substitute yellow stripes and buttons for the concrete barriers. TxDOT never approved the revised traffic control plan in writing; however, TxDOT's contractor contended TxDOT orally approved of the change. The Christs sued the driver of the other vehicle, TxDOT, and TxDOT's contractor.

Trial & Appeal

TxDOT and its contractor filed a plea to the jurisdiction and a no-evidence motion for summary judgment. TxDOT argued: (1) it retained sovereign immunity under the Texas Tort Claims Act (TTCA) because decisions relating to roadway design are discretionary; and (2) the Christs' failed to present evidence creating a fact issue on their premises defect claim. The trial court denied TxDOT's plea to the jurisdiction and motion for summary judgment, and TxDOT filed an interlocutory appeal.

The Thirteenth Court of Appeals reversed the trial court's rulings and dismissed for want of jurisdiction. The appellate court rejected the Christs' contention that a special defect existed, which imposed on TxDOT a duty to warn. The court of appeals further held that TxDOT retained its immunity from suit because the TTCA's protection for TxDOT's discretionary design decisions included the discretion to orally modify the traffic control plan. The Christs subsequently petitioned the Texas Supreme Court for review.

Analysis

The Christs contended TxDOT willingly allowed its traffic control plan to be deviated from and such deviation made the area...