The Texas Supreme Court has affirmed an appeals court ruling that a 15 mile-per-hour speed limit sign posted near a pothole on a rural unpaved road was not sufficient warning of the danger of the pothole.
In court documents in TXI Operations, L.P., v. David Perry (Case No. 05-0030), on petition for review from the Court of Appeals for the Ninth District of Texas, the high court described the case as follows:
“TXI Operations, LP, owns and operates the Dolen Sand Pit and is responsible for maintaining an unpaved road that connects the pit to the highway. David Perry, a truck driver for Campbell Ready Mix, regularly drove back and forth on the road to load and transport materials in connection with his duties for Campbell.
“On one trip down the road, his vehicle struck a hole at a cattle guard. As a result, he was thrown into the roof of the truck’s cab and injured. Perry had already driven the road at least four times that day without injury, and admitted he knew the hole was there. He was also aware of a fifteen miles-per-hour speed limit sign that TXI had posted near the hole. Perry nevertheless claimed that TXI was negligent in failing to warn him of the existence of a road condition that it knew was dangerous.
“A jury found that Perry and TXI were both negligent and equally at fault. As a result, the trial court entered a judgment for Perry, reducing the jury’s damage award by his percentage of fault. TXI appealed, claiming that posting the speed limit sign discharged its duty to warn Perry of the dangerous road condition. The court of appeals disagreed and affirmed the trial court’s judgment. __ S.W.3d __.
“In this Court, TXI does not contest that it owed a duty to warn its invitees; it asserts only that the speed limit sign was an adequate warning of the dangerous road condition as a matter of law.[2]”
The court explained that premises owners and occupiers have a duty to “take whatever action is reasonably prudent under the circumstances” to ensure the safety of invitees to those premises “against known conditions that pose unreasonable risks of harm.”
According to the court’s written opinion TXI asserted that its “duty to Perry was discharged when it posted the speed limit sign.” But the court noted that Perry was following the speed limit posted on the sign at the time of his injury. Therefore, it reasoned, the sign was inadequate warning of the danger the posed by the pothole. The court noted that as an alternative to posting a warning, TXI could have simply repaired the pothole “so as to make the condition reasonably safe as a matter of law.”
However, the court noted, “the record does not reflect that TXI took this action.”
Source: Supreme Court of Texas, www.supreme.courts.state.tx.us/
Topics Texas
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