Road Injury Prevention Litigation Journal
Road Injury Prevention & Litigation Journal
Copyright © 1998 by TranSafety, Inc.
May 1, 1998
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Texas DOT Liable for Motorist's Death Caused by "Special Defect" in Roadway

A steep drop-off at the edge of a roadway caused a crash in which a motorist died. The motorist's mother brought action against the Texas Department of Public Highways and Public Transportation (DOT). The trial jury found that the DOT had no knowledge of the defect and decided in their favor. The Court of Appeals of Texas, Beaumont reversed the trial court's decision. The appeals court held that the drop-off was a "special defect" and that the DOT should have known of the condition.


Laurice Marleene Morse drove on the southbound I-45 access road on October 10, 1989 in Montgomery County, Texas. She was traveling at 40 to 45 miles per hour; the posted speed limit was 50 miles per hour. Her left tires entered a drop-off between the traffic lane and the road shoulder. Laurice Morse lost control; the car crossed the access road, flipped over, and hit a tree. Laurice Morse died in the crash.


Mary Morse, the deceased driver's mother, brought action against the Texas (State) Department of Public Highways and Public Transportation (DOT), under the Texas Tort Claims Act, in the 21st District Court, Montgomery County.

Testimony at the trial confirmed that Laurice Morse's car traveled for 65 feet along the drop-off after her tires left the road. A DOT supervisor with twenty years' experience stated that a drop-off of even six inches could cause a crash. Any such drop-off would be considered a "critical condition" and should be repaired "as soon as possible." The supervisor inspected the access road after the crash. He testified that the drop-off at the crash site was "one of the worst drop-offs he had ever seen."

Another DOT employee with thirty years' experience testified that this type of drop-off must be repaired "immediately."

A State expert witness called by the plaintiff testified that any shoulder drop-off higher than three inches "should probably be marked with a warning sign unless repaired immediately."

Testimony by an area resident established that the crash which killed Laurice Morse was the fourth crash at that location in just over a month. The resident witnessed one of these crashes. After two crashes occurred in one week in front of the witness's home, he called the Department of Public Safety to report the hazardous condition. Department of Public Safety regulations require road hazards be reported to the DOT, but no report was made.

Testimony from two drivers involved in these earlier crashes confirmed that they also lost control of their vehicles when their left tires went over the drop-off.

Two other crashes caused by the drop-off occurred on October 12, shortly before the State repaired the site. Although the jury was not aware of these crashes, this data was submitted to the district court to aid in its determination of whether the drop-off was a "special defect."

Although the jury "generally favored" Mary Morse, it found for the DOT on the grounds that the DOT did not have knowledge of a defect at the crash site.


In her appeal, Mary Morse brought three points of error.

POINT OF ERROR NO. 1 The district court erred in ruling that the drop-off was not a "special defect" and in failing to render judgment for Plaintiff in accordance with the verdict because the drop-off that caused the accident was a "special defect" as a matter of law.

POINT OF ERROR NO. 2 The district court erred in failing to render judgment for the Plaintiff in accordance with the verdict because the evidence conclusively established that the State of Texas had actual knowledge of the drop-off.

POINT OF ERROR NO. 3 Alternatively, the district court erred in failing to submit a question to the jury regarding the actual knowledge of the State of Texas of the drop-off.

At issue in the appeal was the dangerous condition--whether it was an "ordinary premise defect" or a "special defect." The trial court ruled that the drop-off defect that caused the death of Mary Morse's daughter was a premise condition and not a special defect. The appeal court noted:

The existence of a special defect is a question of law for the trial courts. See State v. Kitchen, 867 S.W.2d 784, 786 (Tex.1993). 'Whether a condition is a premise defect or a special defect is a question of duty involving statutory interpretation and thus, an issue of law for the court to decide.' State Dept. of Highways and Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992); see also Blankenship v. County of Galveston, 775 S.W.2d 439, 441-42 (Tex.App.--Houston [1st Dist.] 1989, no writ).

The appeals court explained:

Both ordinary premise defects and special defects can, and many times do, constitute a dangerous condition; however, the legal distinction between the two lies in the duty owed by the State to the person or property injured or damaged as a result of that defect. See Payne, 838 S.W.2d at 237. Where a defect is determined to be a 'premise defect,' the duty upon the State (owner) is not to injure a licensee by willful, wanton or grossly negligent conduct; furthermore, the owner must use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. Payne, supra, at 237.

If the drop-off is a 'special defect,' the State's duty to appellant is to use ordinary care to reduce or eliminate an unreasonable risk of harm created by the drop-off condition of which the State was or reasonably should have been aware. Payne, supra, at 237.

In further reference to Payne, the appeals court emphasized the differences between licensees and invitees. Licensees must prove that the owner of the premises knew of a dangerous condition; invitees must prove only that the owner "knew or reasonably should have known." Licensees must also prove that they did not know about the dangerous condition; invitees do not need to prove this.

The court discussed the definition of special defects, which are:

. . .defects such as excavations or obstructions on highways, roads, or streets. . . . TEX.CIV.PRAC. & REM.CODE  15 101.022(b). A condition can be a 'special defect' without actually being on the roadway if it is close enough to present a threat to the 'normal users of a road.' See Payne, 838 S.W.2d at 238, n. 3. Where a 'special defect' exists, it is the duty of the governmental unit which owns or controls a roadway to warn of same even though the governmental unit did not create the defect. Eaton, 573 S.W.2d at 179-180.

The appeals court then discussed the trial court's determination that the drop-off on the I-45 access road was a premise condition. The court clarified:

Even though the trial court determined as a matter of law that the drop-off was 'a premise condition' and not a 'special defect,' the trial court submitted jury questions prompting factual findings adverse to the trial court's ruling. The jury determined that the drop-off from the road shoulder constituted a dangerous condition of the roadway that presented an unreasonable risk of harm to Laurice Marleene Morse. The jury further determined that Laurice Marleene Morse did not have actual knowledge of the condition of the shoulder of the roadway where the accident occurred. Interestingly, the jury determined that the DOT did not have actual knowledge of the condition of the shoulder of the roadway where the accident occurred, but did determine that through the exercise of ordinary care, the DOT should have known of the dangerous condition prior to the October 10, 1989 accident.

Although a special defect must be hazardous to normal road users even if does not occur on the actual roadway, the court pointed out that it " . . . cannot be located so far from the roadway . . . that vehicular passengers or other normal users of the roadway are unlikely to encounter it. See Payne, 838 S.W.2d at 239. Moreover, whether on a road or near one, conditions can be 'special defects such as excavations or obstructions on highways, roads, or streets . . . ' only if they pose a threat to the ordinary users of a particular roadway. Payne, 838 S.W.2d at 238-239, n. 3."

The court emphasized that size is a consideration in determining whether a particular condition qualifies as a special defect. Mary Morse's appeal focused on the depth of the drop-off. According to a state trooper's testimony for the State, the maximum height of the drop-off was ten to twelve inches; and at the point where Laurice Morse's car left the road, it was six to eight inches. Much evidence presented at the trial concerned the depth and length of the drop-off. The court found that the evidence clearly revealed that the drop-off " . . . tended to block the tires of a vehicle from reentering the traveled portion of the roadway. The evidence is somewhat overwhelming that the drop-off presented an unusual or unexpected danger. Even the testimony of DOT's employees establishes that the drop-off was unusual and extraordinary."

The court then discussed the distinction between an ordinary premise defect and a special defect. This distinction rests upon the requirement of notice to the responsible entity. In the case of a premise defect, the State "must have actual knowledge" of it. If a condition is a special defect, " . . . it is enough if the State knew or reasonably should have known of the condition." The court explained that a special defect does not have to be caused by actions or omissions of a State entity. The court added:

Whether created by the governmental unit, by natural forces, or by third persons, the dangerous condition on the roadway is the same. The significant difference between the situation in which the governmental unit itself created the condition and that in which something else created it is that the government will have actual knowledge of its existence if it created the condition. The governmental unit that has actual knowledge of its creation already has a duty even to a licensee. Eaton, 572 S.W.2d at 179, 180 (Tex.1978), citing Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976.)

Noting that the jury found the DOT should have known of the hazardous condition of the drop-off, the appeals court found "ample testimony" supporting this conclusion. Further, the court maintained that the number of crashes at the site "in and of themselves" constituted "sufficient notice" for requiring the State to correct the situation for the protection of the public. "Responsible State agencies or entities" the court observed, "should avoid the 'ostrich approach' where public safety is jeopardized."

The court further pointed out that the State failed to raise a cross point on the jury's finding that it should have known of the dangerous condition; therefore, the State waived any objection to that finding.

Maintaining that the drop-off did qualify as a special defect at the time of the Laurice Morse's death, the appeals court found error in the trial court's determination that the drop-off was not a special defect. The appeals court sustained Point of Error 1. This finding made consideration of the additional points of error unnecessary. The appeals court also reversed the trial court's entry of a take-nothing judgment.

The Court of Appeals of Texas, Beaumont reversed the trial court's decision and rendered judgment against the Texas Department of Public Highways and Public Transportation on August 31, 1995 (rehearing overruled September 29, 1995).

[For further reference, see Morse v. State (Tex.App.--Beaumont 1995) in West Publishing Vol. 905 South Western Reporter, 2nd Series, 470]

Copyright © 1998 by TranSafety, Inc.

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