Jason Kownslar v. Metropolitan Transit Authority of Harris County, Texas ( 2023 )

Affirmed and Majority and Dissenting Opinions filed January 26, 2023.
In The
Fourteenth Court of Appeals
NO. 14-20-00839-CV
JASON KOWNSLAR, Appellant
V.
METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
TEXAS, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2017-18307-B
DISSENTING OPINION
I respectfully dissent from the majority opinion in part, in that the majority
concludes that the alleged defective condition does not constitute a special defect
under § 101.022(b) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.022(b). Based on the evidence before the trial court, the
condition of the light-rail track constitutes a special defect.
A “defect” is an imperfection, a shortcoming, or lack of something necessary
for completion. City of Houston v. Rushing, 7 S.W.3d 909, 915 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied). The Texas Tort Claims Act defines “special
defect” by listing examples “such as excavations or obstructions on highways, roads,
or streets.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); Univ. of Tex. at Austin
v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010). The statutory list is not exclusive. Tex.
Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam); City of
Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997) (per curiam). To be
considered a special defect the condition must be of the same kind or class as those
listed in the statute. York, 284 S.W.3d at 847; City of Houston v. Joh, 359 S.W.3d
895, 898 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see City of Denton v.
Paper, 376 S.W.3d 762, 764 (Tex. 2012) (per curiam).
In determining whether a particular condition is similar to an excavation or
obstruction and therefore a special defect, courts consider several helpful
characteristics, including but not limited to: (1) the size of the condition; (2) whether
the condition unexpectedly and physically impairs an ordinary user’s ability to travel
on the road; (3) whether the condition presents some unusual quality apart from the
ordinary course of events; and (4) whether the condition presents an unexpected and
unusual danger. Paper, 376 S.W.3d at 765 (citing Hayes, 327 S.W.3d at 116). We
also consider the objective expectations of an “ordinary user” who follows the
“normal course of travel.” Hayes, 327 S.W.3d at 116. Whether a condition is a
special defect is a question of law. Tex. Dep’t of Transp. v. Perches, 388 S.W.3d
652, 655 (Tex. 2012).
Here, the divot, which is part of the light-rail tracks located in lanes of traffic
in the street, is not a common pothole or other similar depression in the street. Cf.
Paper, 376 S.W.3d at 766 (“Such irregularities in the roadway unfortunately are to
be expected.”). It is not open, obvious, or predictable; it is unexpected and unusual.
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See Reyes v. City of Laredo, 335 S.W.3d 605, 607 (Tex. 2010) (per curiam) (“We
have described the class of conditions intended by the statute as those which, because
of their size or ‘some unusual quality outside the ordinary course of events,’ . . . pose
‘an unexpected and unusual danger to ordinary users of roadways.’”); cf. Wildermuth
v. Parker County, 1 S.W.3d 702, 708 (Tex. App.—Fort Worth 1999, no pet.) (“[W]e
hold that the small trees and brush growing inside the curve where the impact
occurred were neither unexpected nor unusual, and thus, did not constitute a special
defect as a matter of law.”). It cannot be said that an ordinary user who follows the
normal course of travel would expect the divot in the street to present the hazard
encountered by Kownslar. The divot in the road unexpectedly and physically impairs
ordinary motorcycle users’ ability to travel on the road by obstructing a
motorcyclist’s path on Rusk Street and allowing a motorcycle’s tire to become
lodged in it, while subsequently preventing the motorcyclist from dislodging the tire
and reentering the roadway. See, e.g., Tex. Dep’t of Transp. v. Ramirez, 566 S.W.3d
18, 24–25 (Tex. App.—San Antonio 2018, pet. denied) (concluding that eight-inch
drop-off along shoulder of a road was a special defect because it prevented a car’s
wheels from reentering the roadway); Morse v. State, 905 S.W.2d 470, 475–76 (Tex.
App.—Beaumont 1995, writ denied) (same but concerning six-inch drop-off).
Further, the condition presents an unusual quality apart from the ordinary course of
events because it is unusual that a divot on the street on which motorcycles travel
would allow for a motorcycle tire to become lodged in an area of a lane of traffic.
These facts make this case distinguishable from the line of cases relied on by
the majority, which concern accidents that did not pose a risk to ordinary users of
the road or to their normal course of travel. Cf. Perches, 388 S.W.3d at 656 (“Here,
the concrete guardrail became an impediment only when Perches missed his turn
and proceeded off the road and therefore does not pose a risk to ordinary users of the
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road.”); Hayes, 327 S.W.3d at 116 (“Hayes did not take the normal course of travel.
Road users in the normal course of travel should turn back or take an alternate route
when a barricade is erected to alert them of a closed roadway.”); Denton County v.
Beynon, 283 S.W.3d 329, 332 (Tex. 2009). (“Our cases rest on the objective
expectations of an ‘ordinary user,’ and such a driver would not be expected to careen
uncontrollably off the paved roadway and into the adjoining grass, as [the driver]
admitted when he stated that the ‘normal course of travel for [Old Alton Road] would
be the asphalt pavement.”). The majority also maintains that the divot is not a special
defect because a motorcyclist may simply go around and avoid the divots, but that
conclusion is not supported by the record, which includes photographs of the scene.
As evidenced by these photographs, the light-rail tracks are almost parallel
with the left lane of traffic on Rusk Street for a brief portion of the road before
gradually making their way across all lanes of traffic on Rusk Street at a slight angle.
See Harris County v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978); see also City of
Weston v. Gaudette, 287 S.W.3d 832, 839 (Tex. App.—Dallas 2009, no pet.).
Contrary to the majority’s conclusion, a motorcyclist does not have the option of
crossing over the tracks that intersect Rusk Street at a ninety-degree angle, nor does
a motorcyclist have the ability to simply go around the tracks. For motorcyclists,
such as Kownslar, the light-rail tracks on Rusk Street obstruct their travel on the road
in a way similar to a ditch. See Reyes, 335 S.W.3d at 607 (“‘A ditch across the
highway’ is a special defect.” (quoting Eaton, 573 S.W.2d at 178–79)). For the
foregoing reasons, I would conclude that the divot here is an obstruction on the road,
and thus, a special defect. See Hayes, 327 S.W.3d at 116; Beynon, 283 S.W.3d at
331.
Accordingly, I would reverse the trial court’s order granting Metropolitan
Transit Authority’s plea to the jurisdiction as to Kownslar’s special defect claim. I
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join the majority in concluding that the trial court did not err when it granted
Metropolitan Transit Authority’s plea to the jurisdiction as to Kownslar’s negligent
activity claim.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Jewell, Poissant, and Wilson. (Wilson, J., majority).
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