Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 21st District Court of Lee County, Texas.
Justices Benavides, Longoria and Hinojosa
L. LONGORIA Justice.
Geoffrey Lucker, the surviving husband of Sally Lucker, filed
a derivative premises liability suit against the Texas
Department of Transportation ("the Department")
after Sally died during a flood. The trial court signed a
take-nothing judgment in favor of the Department. Lucker
argues in two issues that the trial court erred in submitting
two questions to the jury as part of the jury charge. We
March 20, 2012, the Department received information that
water was likely to flood a number of roads in Lee County and
dispatched all available employees to respond to the
situation. Paul Meinke, an assistant maintenance supervisor
for the Department, was in charge of the Department's
response. Meinke testified that, beginning in the early
morning, he monitored flooding at different areas, including
where FM 1624 crosses the Middle Yequa Creek, the location
where Sally was swept off. The water flowed under FM 1624
through a box culvert, referred to at trial as a
the day, Meinke put out a number of signs at different
locations. One of the signs Meinke placed prior to the
accident was a large temporary "Watch For Water On
Road" sign, which also displayed two flags; the sign was
placed next to a smaller, permanent sign, with the same
message, on the approach to the bridge later used by Sally.
The temporary sign was four feet by four feet in size, bright
orange, and its flags were red-orange in color. The permanent
sign was yellow, and three feet by three feet in size.
signs were located about 2, 500 feet from the bridge. As the
water rose about 600 feet past the bridge, the signs were
about 1, 900 feet from the water at the time of the accident.
Meinke testified that a car traveling at 60 miles per hour
would reach the water in about thirty seconds after passing
the two signs. These signs complied with the Manual on
Uniform Traffic Control Devices ("MUTCD"). Meinke
claimed that he did not use his truck to block the approach
to the bridge because if he did, his vehicle might be struck
by another vehicle.
p.m. Meinke returned to the bridge to monitor the rising
water, and if necessary, call for barricades. Meinke
testified that he believed that motorists would turn away
from the water because of the two "Watch for Water On
Road" signs, the flood gauge, and the flashing lights on
his truck. At about 7:00 p.m. the water had topped the road.
Because the water was rising rapidly, at 7:15 p.m. Meinke
ordered that barricades and road closed signs be brought to
both sides of the bridge, but these did not arrive until
after the incident.
then decided to warn nearby oil field workers of the danger
of the rising water because they might attempt to drive on
after it was unsafe to do so, and because the workers had
been the subject of a helicopter evacuation one month before.
Meinke had backed his pickup truck up to the oil field pad
driveway, about 1, 100 feet from the bridge, and had walked
about 150 feet down the driveway when he heard Lucker's
vehicle pass. He ran to this truck and drove back to the
bridge in time to see Sally's car floating down the
Middle Yegua and then sink beneath the water. Geoffrey sued
the Department, and the case went to a jury trial.
the objection of Lucker, the trial court submitted to the
jury a charge containing two questions concerning the
emergency exception in the Texas Tort Claims Act.
See Tex. Civ. Prac. & Rem. Code § 101.055
(West, Westlaw through Ch. 49, 2017 R.S.). Respectively,
these questions asked, "Was Texas Department of
Transportation employee Paul reacting to an emergency
situation in regard to flooding conditions existing at the
time of the accident?" and "Was the accident which
is the subject of this suit proximately caused by the
conscious indifference or reckless disregard of the safety of
others on the part of Paul as an employee of the Texas
Department of Transportation?" The jury answered these
questions by finding that Paul was reacting to an emergency
situation, and that the accident was not proximately caused
by conscience indifference or reckless disregard on the part
of the Department. Id. The jury also found that both
Sally Lucker and the Department were negligent, assigning
Sally Lucker 49% and the Department 51% responsibility.
the verdict, both parties filed competing motions for the
entry of a favorable final judgment. The Department filed a
response to Lucker's motion, although Lucker did not
respond to the Department's motion. The Department's
motion for entry of a take nothing judgment was based on four
independent grounds: (1) the emergency exception; (2) lack of
any evidence that Lucker did not know of the danger; (3) lack
of any evidence that the Department did not warn of the
danger; and (4) no duty was owed because the condition was
open and obvious.
Amended Motion to Disregard Jury Findings addressed the first
issue of the Department's motion regarding the emergency
exception, but Lucker never filed a response to the other
three issues raised by the Department's motion regarding:
(1) Lucker's knowledge of the danger, (2) the
Department's warning of the danger, and (3) the open and
obvious nature of the danger. A hearing was held on both
motions on April 22, 2016, and once again, while Lucker
presented argument and authority regarding the emergency
exception, he made no mention of the other three issues
raised in the Department's motion for a take-nothing
judgment. The trial court then took both motions under
motion was denied by way of a separate order of April 22,
2016. On that same day a final judgment was signed that
specifically sustained the Department's motion for a
take-nothing judgment ...