



johnson-smith majority                                              



TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-93-00471-CV





Ronald W. Johnson, Jr., Appellant


v.


Texas Department of Transportation, Appellee





FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. CV-92-0358-B, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING






	Ronald W. Johnson, Jr. appeals from a take-nothing judgment, based on a directed
verdict, in his causes of action for personal injuries brought against the Texas Department of
Transportation (the "Department") under the Texas Tort Claims Act (the "Act"). (1)  We will affirm
the trial-court judgment.


THE CONTROVERSY

	In early morning darkness, Johnson drove a convertible automobile across
Knickerbocker Road at its intersection with Spillway Road in Tom Green County, crashing into
a barbed-wire fence on the far side of Knickerbocker and sustaining personal injuries.  The
following diagram illustrates the general circumstances:















	Johnson alleged the Department was liable for his injuries on the following alternate
theories:  (1) the Department was negligent in certain acts and omissions described hereafter; (2)
the intersection was a dangerous condition on Department land, a "premise defect"; or (3) certain
aspects of the intersection amounted to a "special defect." (2)  We need not discuss Johnson's
negligence cause of action because, as we understand his petition, he complains of acts and
omissions of the Department only insofar as they created either a "premise defect" or a "special
defect," the subjects of his other two causes of action on which the trial court directed a take-nothing verdict at the close of the evidence.


SUMMARY OF THE EVIDENCE

	The following facts are undisputed in the evidence:  Johnson sustained personal
injuries when he drove his automobile across Knickerbocker and into the barbed-wire fence;
because of the official classification of the intersecting roadways, Tom Green County bore
responsibility for maintenance on Spillway while the Department bore such responsibility on
Knickerbocker; the Department placed a stop sign within its Knickerbocker right-of-way some
twenty feet from the traveled part of Spillway, at the approximate location shown in the diagram
above; a Department engineer selected the location of the sign while supervising a construction
project at the intersection approximately six months before the day Johnson sustained his injuries;
and the sign was installed accordingly.
	Johnson introduced evidence to the following effect:  no signs on Spillway warned
eastbound motorists they were approaching a stop sign, a through highway, or a "T" intersection;
in approaching Knickerbocker, Johnson did not know the circumstances of the intersection; he was
driving in excess of 52 miles per hour, which contributed to his injuries; the stop sign at
Knickerbocker was obscured by trees and vegetation on Spillway; the location of the stop sign was
such that a motorist driving at a prudent speed could not see the sign until it was too late to effect
a timely stop at Knickerbocker; he was unfamiliar with Spillway and the intersection; a
Department regulation required the placing of stop signs at a point six to twelve feet from the
traveled part of the roadway; (3) as a stop sign is placed further than twelve feet, it becomes
progressively more difficult for a motorist to see it, in his peripheral vision, in time to stop before
entering the intersection; such was the case here where the sign was located some twenty feet from
the traveled part of Spillway; the higher grade on Knickerbocker obscured in the dark the fact that
another road intersected Spillway; the glow of lights from nearby businesses created an illusion
that Spillway continued easterly without an intersection roadway; and the condition of the
intersection was a contributing cause of his failure to effect a timely stop at Knickerbocker and
of his resulting injuries.
	The Department adduced evidence that a Department engineer, supervising the
earlier construction project, had personally selected the location where the stop sign was erected
at the intersection; because no part of the regulation specifically controlled the placement of signs
at intersections such as the one involved here, any limitation mentioned in the manual did not
apply; he was therefore free in his discretion to place the stop sign further than twelve feet from
the traveled part of Spillway and did so, using his personal judgment in selecting the precise
location; the stop sign was erected at the place he selected; and at the time the sign was erected
no trees or vegetation obscured the sign from the view of motorists eastbound on Spillway.
	At the close of the evidence, the Department moved for a directed verdict on the
ground that all of Johnson's causes of action depended ultimately upon the single premise that the
stop sign was placed too far from the traveled part of Spillway; the undisputed evidence showed
that the engineer selected the sign's location in an exercise of his professional judgment and
discretion; and as a matter of law the Department was immune from liability for such decisions. 
Concerning Johnson's theories of "design defect" and "special defect," (4) the Department also
averred there was no evidence that any responsible Department employee actually knew that
vegetation or trees along Spillway obscured the stop sign, and as a matter of law the Department
had no duty to inspect Spillway so that it reasonably should have known of any dangerous
conditions, such being the maintenance duty of Tom Green County under relevant statutory
provisions.
	The trial court sustained the motion for directed verdict and rendered judgment that
Johnson take nothing.  Johnson appeals.


IMMUNITY FOR DISCRETIONARY DECISIONS

	In Johnson's first point of error, he contends the trial court erred in taking the case
from the jury because the body of evidence permitted the finding of a "premise defect."  The
Department rejoins that an action based upon a "premise defect," or a "special defect" for that
matter, could not be maintained because Johnson's ultimate complaint--the placing of the stop
sign--was the result of the engineer's exercise of judgment and discretion for which the state is
immune from liability under sections 101.056(2) and 101.060(a) of the Act. (5) See Maxwell v.
Texas Dep't of Transp., 880 S.W.2d 461, 463-64 (Tex. App.--Austin 1994, writ denied);
Villarreal v. State, 810 S.W.2d 419, 422 (Tex. App.--Dallas 1991, writ denied) (roadway design
is discretionary act); Shives v. State, 743 S.W.2d 714, 717 (Tex. App.--El Paso 1987, writ denied)
(placement of stop sign is discretionary act).  Recognizing the split in authority among Texas
courts of appeals, this Court has decided that the discretionary nature of a governmental entity's
actions is a question of law for the court to decide.  Wenzel v. City of New Braunfels, 852 S.W.2d
97, 99 (Tex. App.--Austin 1993, no writ).
	This Court in Maxwell recently reviewed the applicability of the sovereign
immunity doctrine to the Department's decisions regarding highway design and the installation
of traffic safety devices.  In Maxwell we held inter alia that under the scheme established by the
Act it was inappropriate for a court to second-guess the Department's choice or placement of
safety devices.  880 S.W.2d at 464.  In confirming the Department's authority to make these
decisions, we distinguished the use of Department personnel's engineering skills to effectively
implement its policy decisions from actions involving "occupational or professional discretion"
that may expose a governmental entity to liability.  Id.
	Johnson agrees that the Act bars any recovery for negligent design of the
intersection.  Instead, he argues that placement of the stop sign exposes the Department to liability
in this instance because the sign's placement was a "condition" that "contribut[ed] to its
obstruction by shrubs and trees."  Thus, the real issue for decision is whether the stop sign's
placement is an element of design, for which the Department is immune from liability, or a
condition of the sign that subjects the Department to liability.  
	Interestingly, Johnson argues in support of his position that the Department violated
its own design rules by placing the stop sign outside the guidelines set forth in the Manual on
Uniform Traffic Control Devices.   However, the Manual as read into evidence dictates that
"[n]ormally, signs should not be closer than 6 feet from the edge of the shoulder, or if none, 12
feet from the edge of the traveled way."  (Emphasis added.)  In other words, the Manual
guidelines establish a minimum, not a maximum, distance for locating signs near a road.  The stop
sign at issue was placed some twenty-two feet from the traveled roadway, well within the
Manual's guidelines.
	The dissent assigns great weight to Revised Civil Statute Article 6701d, section
91A(b), which directs drivers where to stop at intersections marked by a stop sign.  Tex. Rev.
Civ. Stat. Ann. art. 6701d, § 91A(b) (West 1977). (6)  However, the legislature has addressed a
specific directive to the Department:  "Every [stop or yield] sign shall conform to the manual and
specifications for uniform traffic-control devices as adopted by the [Department].  Every stop or
yield sign shall be located as near as practicable at the nearest line of the . . . roadway."  Id. §
91(b) (West 1977).  The Department engineer responsible for the design of this intersection
acknowledged this statutory mandate:  "My responsibility is to determine `as possible.'"  Just as
the guidelines established in the Manual do not abridge the Department's discretion to exercise
engineering judgment in design, see 43 TAC § 25.1(c); State Dep't of Highways & Pub. Transp.
v. King, 808 S.W.2d 465, 466 (Tex. 1991); Bellnoa v. City of Austin, 894 S.W.2d 821, 824 (Tex.
App.--Austin 1995, no writ), so too the statutory guideline "as near as practicable to the road"
confirms that engineering judgment is essential to determine the proper placement of signs, taking
into account visibility, stopping distance, the likelihood of signs being knocked down if placed
too near the road, and other factors that must be considered.  If a motorist's claim that a sign is
difficult to see were sufficient to call into question the Department's design discretion, virtually
any challenge to the placement of a traffic sign would suffice to preclude summary judgment on
sovereign immunity grounds and subject the Department's engineering design in this limited area
to a jury's review--even though the design and installation of other traffic devices is protected by
immunity from judicial review.  See Maxwell, 880 S.W.2d at 464.
	Consequently, we reject any attempt to characterize the stop sign's placement as
something other than a design decision shielded by the Department's sovereign immunity.  Unlike
the brush that partially obscured the sign at the time of the accident or an obvious flaw that
prevents it from performing its desired function, the sign's location was an element of purposeful
engineering design for which the Department and its engineers are immune from liability. 
Accordingly, we overrule Johnson's first point of error.
	Because we conclude that the sign's placement was an element of design, and
because Johnson offered no evidence that vegetation obscured the sign at the time of its initial
installation, the question of the Department's knowledge regarding the placement is irrelevant.
Cf. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). 
Furthermore, although Johnson suggests that testimony of Department engineer Joe Lane raised
a fact issue regarding the Department's knowledge of the condition of the sign at the time of the
accident, Lane specifically denied any knowledge of the sign's condition after his final inspection
approximately three months before Johnson's accident.  Johnson's second point of error is
overruled.


NO EVIDENCE OF A SPECIAL DEFECT

	In the case of a special defect, the governmental unit comes under a duty to know
what reasonably should be known concerning any condition on the premises that creates an
unreasonable risk of harm and a corresponding duty to warn of that condition.  Id.  "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."  Id. at 238.
	The special-defect factor arises from the terms of section 101.022(b) of the Act,
which provides that the governmental unit owes "a duty to warn of special defects such as
excavations or obstructions on highways, roads, or streets."  Act § 101.022(b). (7)  In County of
Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978), the supreme court limited the scope of
"special defect" to that allowed by the rule of ejusdem generis.  Consequently, a "special defect"
must be of the same kind or class as an excavation or an obstruction on the highway.  Id.  The
evidence does not show an excavation on any highway.  While the evidence does show an
obstruction of the view of the stop sign, as a result of vegetation and trees on Spillway, this is not
an obstruction on the highway; at all events, that obstruction could not be attributed to the
Department because it had no statutory duty regarding Spillway, a county road.  We therefore
overrule Johnson's third point of error in which he complains the trial court erred in ruling as a
matter of law that the case did not involve a special defect.


WAIVER

	In a "response point," the Department complains Johnson did not preserve a point
of error based upon an ordinary premise defect because he failed to raise the point in his motion
for rehearing in the trial court.  We observe, however, that Johnson does not raise on appeal any
point of error for which a motion for rehearing was a prerequisite.  See Tex. R. Civ. P. 324.  His
motion for new trial was therefore sufficient, in our view, to preserve error on each of his alleged
causes of action.
	For the reasons given above, we affirm the trial-court judgment.


  
					Bea Ann Smith, Justice
Before Justices Powers, Jones and B. A. Smith
Affirmed
Filed:    August 16, 1995
Publish
1.        Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (West 1986 & Supp. 1995). 
Section 101.021 of the Act provides that a governmental unit in the state is liable for personal
injury "caused by a condition or use of . . . real property if the governmental unit would,
were it a private person, be liable to the claimant according to Texas Law."  Act
§ 101.021(b).  Johnson also sued Tom Green County.  They settled and compromised their
controversy before this appeal.
2.        Various sections of the Act qualify the waiver of governmental immunity contained in
section 101.021 of the Act.  For example, section 101.022 specifies that in claims based upon
a "premise defect," the governmental unit owes "only the duty [owed] to a licensee on private
property, unless the claimant pays for the use of the premises."  Act § 101.022(a).  However,
this limitation does not apply to:  (1) "the duty to warn of special defects such as excavation
or obstructions on highways, roads, or streets"; and (2) "the duty to warn of the . . .
condition . . . of traffic signs . . . or warning devices as is required by Section 101.060" of
the Act.  Id. § 101.022(a), (b).
3.        The regulation referred to is found in a Department publication entitled Texas Manual
on Uniform Traffic Control Devices for Streets and Highways.  The manual is expressly
incorporated as a part of the Texas Administrative Code ("TAC").  See 43 TAC § 25.1 (1994). 
However, as explained below, the text of the regulation actually contradicts Johnson's expert's
interpretation by stating that signs should be placed no closer than 6 or 12 feet from the roadway,
depending on the shoulder.
4.        In State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 237
(Tex. 1992), the supreme court set out as follows the respective elements of a cause of action for
an ordinary "premise defect" and a "special defect":

Premise defect:  (1) a condition of the premises created an unreasonable risk of harm
to the licensee; (2) the owner actually knew of the condition; (3) the licensee did not
actually know of the condition; (4) the owner failed to exercise ordinary care to
protect the licensee from danger; and (5) the owner's failure was a proximate cause
of injury to the licensee.

Special defect:  (1) a condition of the premises created an unreasonable risk of harm
to the invitee; (2) the owner knew or reasonably should have known of the condition;
(3) the owner failed to exercise ordinary care to protect the invitee from danger; and
(4) the owner's failure was a proximate cause of injury to the invitee.
5.        Section 101.056(2) provides as follows:

This chapter does not apply to a claim based on:


	. . . . 


	(2)	a governmental unit's decision not to perform an act or on its failure
to make a decision on the performance or nonperformance of an act
if the law leaves the performance or nonperformance of the act to the
discretion of the governmental unit.

Act § 101.056(2).

Section 101.060 provides as follows:

(a)	This chapter does not apply to a claim arising from:

	(1)	the failure of a governmental unit initially to place a traffic or road
sign, signal, or warning device if the failure is a result of
discretionary action of the governmental unit;

	(2)	the absence, condition, or malfunction of a traffic or road sign,
signal, or warning device unless the absence, condition, or
malfunction is not corrected by the responsible governmental unit
within a reasonable time after notice; or

	(3)	the removal or destruction of a traffic or road sign, signal, or
warning device by a third person unless the governmental unit fails
to correct the removal or destruction within a reasonable time after
actual notice.

(b)	The signs, signals, and warning devices referred to in this section are those
used in connection with hazards normally connected with the used of the
roadway.

(c)	This section does not apply to the duty to warn of special defects such as
excavations or roadway obstructions.

Act § 101.060.
6.        We note that Johnson raises neither this statute nor the dissent's argument in his brief.
7.        Section 101.022(b) goes on to provide, in effect, that the governmental unit owes a
"duty to warn of the absence, condition or malfunction of traffic signs, signals, or warning
devices as is required by Section 101.060."  Act § 101.022(b).  Johnson does not raise this
duty in his brief, but relies instead solely upon "a duty to warn of special defects such as
excavations or obstructions on" the highway.  Because Johnson does not raise the matter, we
express no opinion regarding the applicability, under the evidence, of this duty to warn
mentioned in the Act.
