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Texas Department of Transportation v. Padron

Court of Appeals of Texas, Sixth District, Texarkana

December 13, 2019


          Date Submitted: October 7, 2019

          On Appeal from the 126th District Court Travis County, Texas Trial Court No. D-1-GN-16-005492

          Before Morriss, C.J., Burgess and Stevens, JJ.



         A Travis County jury awarded $5, 232, 994.00 in damages for premises liability claims brought by (1) Leonor Padron, individually and as next friend for A.L., a minor; as an heir and as surviving spouse of Jose Lopez Garcia; and as dependent administrator for the Estate of Jose Lopez Garcia; (2) Marisol Delgado Aguirre; and (3) Intervenor Sylvia Reyna Ramirez as the dependent administrator for the Estate of Alfonso Lopez (Appellees) against the Texas Department of Transportation (TxDOT).[1] Pursuant to liability limitations under the Texas Tort Claims Act, the trial court remitted the award to a total of $500, 000.00 in its final judgment against TxDOT.[2]

         On appeal, TxDOT argues that the trial court did not have jurisdiction because it did not receive adequate written notice of the claim as required by the Texas Tort Claims Act. TxDOT also prays that the judgment be reversed and a take-nothing judgment rendered because there was no evidence to support several elements of the Appellees' claims and because they failed to obtain necessary jury findings. Because we conclude that TxDOT had adequate notice of the claims and is not entitled to a take-nothing judgment, we affirm the trial court's judgment.

         (1) Factual and Procedural Background

         On May 8, 2016, Alfonso Lopez was driving with passengers Garcia; Garcia's wife, Padron; their son, A.L.; and Lopez's girlfriend, Aguirre, on the 15900 block of Highway 290 between Elgin and Manor, Texas (Lopez accident site), when his truck hydroplaned and crashed. All were injured, and Garcia and Alfonso died. Padron and Aguirre sued, alleging that the road condition "was so worn and slick" that it posed an unreasonable risk of harm, that TxDOT had actual knowledge of the highway's dangerous condition given that "there [had] been at least four prior fatalities on this stretch of Highway 290 since October 2015," and that TxDOT failed to use ordinary care to make the premises safe.[3] Ramirez intervened in the lawsuit.

         At trial, Ryan Phipps, the chief of the Manor Police Department, testified that he "noticed that there [were] quite a few collisions . . . where vehicles just simply driving down the road would slide off either into the median or slide off the side of the roadway." According to Phipps, while many of the collisions reported to emergency dispatchers did not result in a crash report or investigation due to minor damage, "a few" resulted in injury and fatalities. On one occasion, Phipps recalled witnessing "multiple cars slid[ing] off the roadway while . . . dealing with the original scene [he was] called out for." That event prompted Phipps to email Robert Guydosh, a traffic signal engineer for TxDOT, to inform him of the issue.

         Phipps' May 18, 2015, email provided the first notice to TxDOT about issues with the roadway and stated,

We seem to be noticing a pattern in an area of [Highway] 290 here in Manor that we have had a large number of accidents in the last couple months. Most of them dealing with commercial motor vehicles and personal vehicles towing a trailer but they seem to be hitting a slick spot in the same stretch and jack-knifing and going off the roadway. If you drive out 290 starting in about the 14000 block you can see all of the skid marks and ruts of the roadway into the medians and unimproved shoulder areas. Not sure if this is something you guys want to look into but our local newspaper is already asking questions about it.

         Guydosh confirmed that the area at issue was both eastbound and westbound on Highway 290 "a bit to the west of Old Kimbro Road" and that he had reported the issue to the maintenance supervisor for the area who was "going to check" on it. Guydosh testified that he followed up with the TxDOT maintenance office and spoke with James Henderson, a TxDOT maintenance supervisor.

         Phipps testified that most accidents occurred "[i]n that area a mile east and a mile west of FM 1100" and that the issues with the road were obvious to anyone who drove it. Photographs of the rutting and skid marks showing that many vehicles had slid off that portion of the roadway were introduced to the jury. Phipps testified that, "[o]ver some time," TxDOT "grated" a portion of the roadway in response, but that did not "completely fix[]" the problem.

         In October 2015, Phipps responded to an accident that caused the death of Carol Voutsinas and led to TxDOT's second notice of an issue with the roadway. Specifically, Will Bozeman, a TxDOT engineering technician, testified that he alerted TxDOT supervisors that there was a problem with the portion of the roadway one mile east and one mile west from FM 1100 (the "problem area") after the Voutsinas accident, which was within one mile of the Lopez accident site. Bozeman concluded that "wet weather pavement" was a contributing factor in Voutsinas' accident.

         Henderson testified that TxDOT received all police reports for accidents occurring in the problem area, and Bozeman testified that TxDOT maintained a crash records information system compiling the police officer crash reports. A search of this system for the one mile east and one mile west of FM 1100 showed there were a total of 117 crashes from 2010 through 2016. Excluding dry weather accidents, the system showed one wet weather accident from 2010 to 2012, three wet weather accidents in 2013 and 2014, twelve wet weather accidents in 2015, fifteen wet weather accidents in 2016, and one standing water accident. The accident report listed Lopez's failure to control speed as a contributing factor in the accident.[4] Although there was no code for an officer to list road conditions as a contributing factor, the report contained a narrative section, which failed to mention they played any role in the accident. Bozeman testified that none of the 117 crash reports listed factors other than driver error.

         In February 2016, Phipps received an open records request for crash data and reports for the problem area and sought the assistance of TxDOT in responding to the request. On February 4, Bozeman copied Phipps on a response sent to David Barol, Guydosh, and other TxDOT employees instructing them how to respond to the open records request for the "recent severe crashes" in the area "along U.S. 290 (14800 Block) . . . cover[ing] an approx. 2.0 mi. segment, extending 1 mi. east & west of FM 1100, including the Old Kimbro, FM 1100 & Volker [sic] Ln. Intersections." In his response to Bozeman's email, Phipps informed TxDOT, "[T]his very small section of 290 provides a lot of work for our officers. Our local media has dubbed it the Bermuda Triangle of Manor." Phipps also wrote,

You can drive out there right now and see the multiple skid marks in the median from many roll over collisions we have there, one or two which were fatal. I just wanted to bring this to TxDOT['s] attention because a layman looking at this would say there is an issue with the roadway and the number of serious accidents in the small area can't just be a coincidence.

         Phipps testified that his intent in sending that email, constituting TxDOT's third notice of problems with the roadway "was just to get it fixed so we would stop having accidents out there."

         Bozeman also sent a separate, February 4 email only to TxDOT employees, including Bobby Ramthun, the TxDOT area engineer responsible for the section of road at issue at the time of the Lopez accident. In that email, he notified TxDOT supervisors and employees, including Imelda Barrett, the director of transportation operations, that he had had a conversation in December 2015 with John Peters, assistant area engineer, and advised Peters "of the serious wet pavement crash history that was [evident] from data analysis." According to Bozeman, Peters "responded that it matched up with conditions that Area Office and district pavement staff had already identified and were moving forward to address." As a result of the email chain, Guydosh admitted TxDOT was aware of the problem area, which was a straight and flat portion of roadway.

         Bozeman testified that TxDOT decided to mill the road in the problem area after the Voutsinas accident, which, according to Bozeman, Ramthun, and Henderson, would create more friction and increase traction to make the road safer. According to Bozeman, Peters knew that there was an issue with the roadway in close proximity to the location of the Lopez accident site, told him that "follow-up work was in process," and said that he was working to mill the road "as fast as possible." Yet, at the time of trial, Bozeman could not testify whether the road at the Lopez accident site had been milled.

         Ramthun testified that Peters was his supervisor when he started his position with TxDOT in January 2016, but that Peters did not communicate any wet weather pavement issues requiring milling of the road, and that he was not aware of any preventative maintenance contracts for the problem area. Henderson, who was supposed to report to Ramthun, also testified that he did not discuss any issues with the problem area with Ramthun. Yet, Henderson sent a request to schedule use of the milling machine in January 2016 via email that said, "[T]hey are still having wrecks at those two locations on U.S. 290 near the 1100 Abramson Road. They want me to mill the entire roadway main lanes and shoulders." The TxDOT milling scheduler responded that the machine was being serviced and that they were "[h]oping to get [it] back soon." Ramthun clarified that, even after the February emails, nothing was done with the road at the Lopez accident site.

         The evidence showed that the Lopez accident site was in the problem area. During cross-examination, Phipps said that the Lopez accident happened less than a mile away from the rutting and skid marks shown in the photograph to the jury, but that, in his opinion, the Lopez accident occurred "right around" the general area of concern. During redirect examination, Phipps unequivocally stated that the Lopez accident occurred "[i]n that area a mile east and a mile west of FM 1100." Also, Bozeman testified that the Lopez accident site was 0.75 miles east of FM 1100, and Henderson confirmed it was "within a mile of FM 1100 between Voelker and Abramson."

         When Henderson investigated the Lopez accident, he concluded that it occurred "during rain/wet pavement." Photos of the roadway after the accident were taken by Henderson and shown to the jury. Some of the photos established that, while a portion of the problem area had been textured, the Lopez accident site was not textured. Ramthun confirmed that, based on a review of those pictures, the problem area around the Lopez accident site had not been recently milled and that TxDOT could have milled the entire portion of the problem area in one week or could have completed an asphalt overlay in several weeks. Henderson agreed that the problem area around the Lopez accident site was not milled and had a flush condition that could be very slippery when wet. Yet, Henderson, Guydosh, and Ramthun testified that there were no signs notifying drivers to slow down or that the road was slippery when wet.[5] Accordingly, Henderson admitted that Lopez was not aware of the dangerous condition of the road.

         According to Bozeman and Henderson, the pavement on the problem area was sealcoat, not asphalt. While Henderson did not know when the road was last treated with an asphalt overlay, Ramthun testified that the road was last chipsealed sometime between 2013 and 2015. Due to the condition of the road, Henderson testified that, after the Lopez accident, TxDOT displayed a sign in the problem area warning drivers to slow down during wet weather and milled the road a few weeks after the Lopez accident. Ramthun reported that, after the Lopez accident, TxDOT decided to repair the problem area with an asphalt overlay in 2017.

         James Raymond Lock, an expert in traffic accident reconstruction, testified that, when he went to the scene of the Lopez accident thirty-seven days after the crash to investigate what contributing factors caused the accident, "TxDOT had already come through and ground up the road and destroyed the surface that was on it at the time of the crash." Lock spoke to witnesses and inspected Lopez's truck, tire marks left on and off the roadway, photographs and video from the accident scene, the police report, and eighteen similar crash reports in the problem area before forming his expert opinions. According to Lock, an examination of this evidence revealed that (1) the Manor Police Department admitted that they did not measure Lopez's speed at the time of the accident; (2) Lopez was travelling only between fifty and fifty-eight miles per hour at the time of the accident, which was a safe speed at the time of the accident;[6] (3) the worn, flushed, and polished condition of the "very hazardous" roadway, caused by "compaction" from "all the truck traffic pushing the rocks into the asphalt," constituted an unreasonably dangerous condition;[7](4) the Lopez accident was proximately caused by the road surface because, "when wet[, it] had inadequate friction for the normal use and for a normal, reasonable, prudent driver to safely traverse it"; and (5) Lopez did not apply his brakes before or during the accident.

         Jeffrey Milburn, a registered professional engineer and accident reconstructionist, testified that the police report was mistaken about the location of the accident and that the pavement did not cause the accident. According to Milburn, "[t]he crash report reported it two-tenths of a mile to the east of Abrahamson [sic]," but the Lopez accident site was "two-tenths of a mile to the west of Abrahamson [sic]." Milburn testified that a sealcoat was placed on the highway in 2013, that the quality of the limestone aggregate was high and did not polish quickly, and that there was "still friction capability on that roadway." Milburn also said that flushing was a very common condition, but that that roadway only had, "at worst, very minor flushing."

         According to Milburn, photos of the tire marks on the road indicated that Lopez did not lose control as a result of low friction on the road because "you can't make tire marks without friction." He explained,

[I]f you look at the shape of that tire mark, it's a constant radius. That is, it doesn't go and then jig or jag, okay. It's a nice, smooth line. If this were a low friction loss of control, what you would see is when you come across the higher texture surface here in the middle, the tire mark would look different than it did across the wheel path where there is less prominent aggregate.

         Milburn testified that, in his opinion, while the tires on the truck had good tread, Lopez lost control after a steering input quickly to the left lane caused "overcontrol." Milburn also said that there was no recent crash history near the Lopez accident site.

         During cross-examination, Milburn agreed that he did not measure any tire marks at the site of the accident, did not inspect Lopez's truck, did not calculate Lopez's speed at the time of the accident, and did not speak with any TxDOT employees. He admitted that there was no measurement of the coefficient of friction or traction at the Lopez accident site, new pavement would have provided better traction, and flush pavement could contribute to wet weather accidents. Milburn also testified that he did not know exactly when or why the "steering event" occurred.

         After the evidence was concluded, the jury was asked whether TxDOT's negligence proximately caused the occurrence. The jury charge read,

With respect to the condition of the premises, Defendant the Texas Department of Transportation was negligent if --
a. the condition of the road at the time and place of the accident posed an unreasonable risk of harm, and
b. the Texas Department of Transportation had actual knowledge of the danger, and
c. Alfonso Lopez did not have actual knowledge of the danger, and
d. the Texas Department of Transportation failed to exercise ordinary care to protect the occupants of the vehicle from the danger, by both failing to adequately warn them of the condition, if any, and ...

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