Before Justices Kinkeade, Morris and Wright

The opinion of the court was delivered by: Justice Kinkeade

AFFIRMED and Opinion Filed June 10, 1999

OPINION

This is a premises liability case arising out of a fatal automobile accident. Following a jury trial, the Texas Department of Transportation (DOT) appeals the trial court’s earlier granting of partial summary judgment in favor of Leonard Dorman and Eva Dorman, plaintiffs, and Ray Harris and Winnie Mae Jeffrey, Individually and as Beneficiaries of the Estate of Mary J. J. Monroe and Jeffrey T. Harris, Intervenors. In four points of error, DOT contends the trial court erred in granting partial summary judgment because the trial court incorrectly concluded (1) the loose gravel condition on the roadway was a special defect as a matter of law or fact; (2) a drop-off edge existed, was a special defect, and was the proximate cause of the accident; and (3) the lack of a center stripe was a special defect. Additionally, DOT contends the trial court erred in granting partial summary judgment because genuine issues of material fact existed as to DOT’s warning of the premises conditions and decedent’s knowledge of the conditions. Because we conclude the summary judgment evidence established (1) that the drop-off edge of the highway as it existed on the day of the accident constituted a special defect that caused the accident, and (2) DOT did not adequately warn decedent of this defect, we affirm the trial court’s judgment.

Factual Background

During the evening of March 10, 1994, as Mary Monroe was driving along a farm to market road (FM 2101) in Hunt County, Texas, Monroe came upon a portion of the road that had been under construction that day by DOT. Portions of the asphalt surface of the shoulder had been scraped, leaving about a four-inch drop to the shoulder. A loose rock base had been put over the entire road including the drop-off. Monroe lost control of her car after hitting the drop-off, slid onto a bridge and hit a truck driven by Eva Dorman. Monroe and her infant son, Jeffrey T. Harris, who was with her in the car, were killed. Eva Dorman and her passenger, Leonard Dorman, were seriously injured.

The Dormans sued under Texas Civil Practice and Remedies Code § 101.022 for their injuries, and Winnie Mae Jeffrey and Ray Harris, relatives of Monroe, intervened on behalf of Monroe and Jeffrey. The Dormans and the intervenors filed a motion for partial summary judgment requesting a determination that the condition of the road, created by DOT, was a special defect that caused Monroe’s accident with the Dormans. The trial court granted the partial summary judgment, concluding as a matter of law that (1) the conditions of the road, i.e., the rock on the roadway, the shoulder drop-off, and the lack of a center stripe individually and collectively constituted a special defect, and (2) DOT was liable to the plaintiffs due to its negligence that was a proximate cause of the accident. The trial court further found the following facts were established:

The remainder of the case went to a jury. Based on the partial summary judgment, the trial court instructed the jury that DOT was negligent and that its negligence was a proximate cause of the accident. The jury returned a verdict awarding nearly $3,000,000 in damages. The trial court entered an agreed judgment limiting the damages to the $500,000 Tort Claims Act statutory cap. In this appeal, DOT challenges only the trial court’s granting of the partial summary judgment.

Standard of Review

The standards for reviewing summary judgments are well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Id. We review the evidence in a light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts in the non-movant’s favor. Id.

Premise or Special Defect

In its second point of error, DOT contends the trial court erred in granting partial summary judgment on the basis that an edge drop-off existed on the road, that the drop-off was the proximate cause of the accident, and that the drop-off was a special defect. Specifically, DOT argues that the evidence does not establish that the condition of the roadway had an edge drop-off or that any drop-off that may have existed constituted a special defect as a matter of law. We first examine the nature of the defect, because whether the condition constituted a special defect or an ordinary premises defect determines the duty DOT owed to appellees on the day of the accident.

A governmental entity may be liable for personal injuries in a premise liability case. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997). The duty owed by the governmental entity depends on the nature of the condition that caused the injury. If the condition is an ordinary premise defect, the governmental unit owes the same duty a private landowner would owe a licensee. City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997). If the condition is a special defect, the governmental unit owes the same duty a private landowner would owe an invitee. Id. In both cases, the plaintiff must prove the condition of the premises created an unreasonable risk of harm to the licensee or invitee, the owner failed to exercise ordinary care to protect the licensee or invitee from danger, and the owner’s failure was a proximate cause of injury to the licensee or invitee. State Dep’t of Highways v. Payne, 838 S.W.2d 235, 238 (Tex. 1992). The difference lies in the additional elements. In an ordinary premises defect case, the licensee must also prove that the premises owner actually knew of the dangerous condition, while an invitee need only prove that the owner knew or reasonably should have known of the condition. Morse v. State, 905 S.W.2d 470, 474 (Tex. App._Beaumont 1995, writ denied)(citing Payne, 838 S.W.2d at 237). Finally, in an ordinary premise defect case, the licensee must also prove that he did not know of the dangerous condition, while an invitee need not prove his lack of knowledge. Id.

Determining whether a condition is a special defect or an ordinary premise defect is a question of law for the court to decide. Roberts, 946 S.W.2d at 843; Payne, 838 S.W.2d at 238. Special defects are defined, nonexclusively, as “excavations or obstructions on highways, roads, or streets.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) (Vernon 1997). A condition may be a special defect without actually being on the roadway if it is close enough to present a threat to the normal users of the road. Morse, 905 S.W.2d at 474. Special defects are unusual and unexpected dangers to ordinary users of the roadway. Peterson v. City of Fort Worth, 966 S.W.2d 773, 776 (Tex. App._Fort Worth 1998, no writ). Special defects are distinguished by “some unusual quality outside the ordinary course of events;” a “longstanding, routine, or permanent condition is not a special defect.” Id. (quoting Stokes v. City of San Antonio, 945 S.W.2d 324, 326-27 (Tex. App._San Antonio 1997, no writ). Courts may consider the size of the defect in determining whether it is a special defect. See Graham v. Tyler County, 983 S.W.2d 882, 884 (Tex.App._Beaumont 1998, no writ) (citing Harris County v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978)).

In the present case, the record reveals that DOT had been doing road work on the day of Monroe’s accident on the same section of the road where she lost control of her car. James Ayers, the roadway maintenance supervisor for DOT who was overseeing the work on the road, testified by deposition that his crew had dug up the asphalt surface and base underneath the roadway on the day of the accident, and had covered it with a “flexible base” because the work had not been completed. The flexible base consisted of loose rock and gravel. Jon Clements, an area engineer for DOT, testified by deposition that, on this same portion of the road, the shoulders had been removed on the day of the accident because of the base replacement work. James Lawrence, DOT’s on-site crew manager at the location of the accident, testified by deposition that the removal of the shoulder had created a drop-off of approximately four inches from the road surface to the dirt shoulder.

In his deposition, Clements identified photographs taken of the location by the investigative officer. Clements testified that warnings should have been given for the conditions shown in the photographs, specifically, the loose gravel, the shoulder drop-off, and the absence of a center stripe. Clements further stated that DOT policy at the time was to warn with a “Low Shoulder Edge Drop- Off” sign when a shoulder drop-off was three inches or more, because such a drop-off is potentially hazardous.

We conclude the trial court correctly determined this is a special defect case. The evidence shows that a potentially hazardous condition existed by virtue of the shoulder drop-off. Further, the condition was not a longstanding condition, but was created the day of the accident by DOT. The loose gravel covering the drop-off aggravated the condition, because it potentially gave drivers the false impression that the drop-off was more of a gradual decline than a drop-off. The defect in this case was an “unusual, dangerous, and relatively large” defect, more in line with the cases finding special defects than the cases finding premise defects. See Stokes, 945 S.W.2d at 327 (listing and comparing cases where courts have determined defects are special defects and cases where courts have determined defects are premises defects); see also Morse, 905 S.W.2d at 475 (shoulder drop-off ranging from 6 to 12 inches is special defect as a matter of law).

DOT attempts to distinguish Morse on the basis that the drop-off there was much deeper than the drop-off in this case. Although the drop-off in Morse was deeper, i.e., the place where the accident occurred was a 6 to 8 inch drop-off, the highway department’s expert in Morse testified that a shoulder drop-off greater than 3 inches should be marked with a warning sign. Morse, 905 S.W.2d at 475. In this case, Clements testified that DOT policy required warnings for a drop-off of more than three inches. We conclude the difference in the size of the drop-off between this case and Morse does not transform this defect from a special defect to a premises defect. The evidence showed that the four-inch drop-off posed an “unusual or unexpected danger” to drivers and was therefore a special defect.

DOT also contends there was insufficient proof that the drop-off was the cause of Monroe’s accident. However, we conclude causation was established by the summary judgment proof. Trooper Welch, the investigating officer, testified by deposition that Monroe lost control of her vehicle when she ran off the edge of the road at the place where the roadway was being repaired. He testified that her rate of speed and the loose gravel contributed to her loss of control. DOT argues that because Welch did not specifically mention the drop-off, there was no testimony that a drop-off caused the accident. However, Welch’s undisputed testimony shows that Monroe lost control of her vehicle at the place where the road was being repaired, and that she ran “off the edge of the roadway.” Clements’s and Ayers’s testimony shows that the shoulder of the road had been “pulled back” on the day of the accident and covered with loose gravel, and Lawrence testified that the shoulder removal resulted in a four-inch drop-off. None of this testimony was disputed. We conclude the summary judgment evidence established that the removal of the shoulder and the resulting drop-off caused the accident.

We hold the trial court did not err in granting partial summary judgment on the basis that the defect in this case was a special defect as a matter of law, and that this condition caused the accident. We overrule DOT’s second point of error. Further, because we hold the shoulder drop-off in this case constituted a special defect as a matter of law, we need not address DOT’s first and third points of error complaining that the trial court erred in determining the loose gravel or the absence of a center stripe constituted special defects as a matter of law.

Adequacy of Warning

In its fourth point of error, DOT complains the trial court erred in granting partial summary judgment because fact issues existed as to DOT’s warnings and the decedent’s knowledge of the conditions. Initially, we note that the decedent’s knowledge of the road conditions are relevant only if the defect in this case were a premises defect. See Payne, 838 S.W.2d at 237 (in ordinary premises defect case, licensee must prove he did not know of the dangerous condition, while an invitee in a special defects case need not prove lack of knowledge). Because we hold the defect here was a special defect, the decedent’s knowledge is irrelevant and we need not address this argument.

Next, DOT contends fact issues existed as to whether, assuming the roadway conditions posed an unreasonable risk of harm, DOT adequately warned of the harm. In both ordinary premise defect cases and special defect cases, a plaintiff must prove that the owner failed both to adequately warn of the condition and to make the condition reasonably safe. See State of Texas v. Williams, 940 S.W.2d 583 (Tex. 1996). DOT contends only that fact issues exist as to whether it adequately warned of the dangerous condition. DOT argues that they had placed warning signs at the beginning and end of the entire project on FM 2101. They argue that this evidence raises a fact issue with respect to the adequacy of the warning.

Appellees, however, contend that the deposition testimony conclusively established that the warnings were not adequate. DOT’s designated witness, Clements, testified that the conditions on the portion of the road where Monroe lost control of her car warranted a warning. He further testified that written DOT policy required warning signs to be placed approximately 1,000 feet from these types of potentially hazardous areas. He admitted that, on the day of the accident, there were no warning signs within 7,000 feet of the accident site for cars coming from the direction Monroe was driving. Although he refers to warning signs and asserts that DOT adequately warned of the road conditions, the evidence at most shows that some warning signs were placed at the beginning and end of the four-to-five mile work zone. The record establishes that the warnings given did not comply with the guidelines set by DOT. We agree with appellees that, even viewed in the light most favorable to DOT, the evidence does not raise a fact issue with respect to the adequacy of the warnings at the area where the accident occurred. We conclude the trial court did not err in concluding DOT failed to make safe or adequately warn of the special defect. We overrule DOT’s fourth point of error.

We hold the trial court did not err in granting partial summary judgment on the basis that the condition that caused the accident was a special defect as a matter of law. We affirm the trial court’s judgment.

ED KINKEADE, JUSTICE