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In two issues, Texas Department of Transportation (“TxDOT”) claims the trial court erred in entering a final judgment in favor of Appellee Mr. Weldon Mackey. On appeal, TxDOT argues the court committed reversible error in its instruction to the jury on its duty of care in that the stated duty was an ordinary negligence standard of care instead of a premises liability standard of care, and that even if a premises liability charge had been submitted to the jury, there was no evidence to support at least two essential elements of Mr. Mackey’s claim.

On July 31, 2006, Mr. Weldon Mackey was riding his motorcycle on Highway 21 in Bryan, Texas. After stopping briefly at the intersection of Highway 21 and Highway 6, Mr. Mackey drove through the intersection, and as he did, the tires slid from under him, and he lost control and crashed onto the road. It was later determined that a TxDOT truck, driven by TxDOT employee Jeffery Massey, had passed through the same intersection earlier and leaked hydraulic fluid onto the roadway, which in turn resulted in Mr. Mackey’s crash. Specifically, the fluid came out of a failed pipe fitting, which Martin Truck Enterprises had installed inside the truck. The morning of the incident, Mr. Massey’s employer instructed him to drive the truck and its attached trailer from Buffalo, Texas to Bryan, Texas in order to pick up a pneumatic roller, and then to return to Buffalo. On the way up to Bryan, Mr. Massey stopped in Flynn, Texas to drop off some barricades, and after doing so, he made a 180-degree turn through a ditch to get back onto the roadway. It was not until Mr. Massey reached the TxDOT office in Bryan that he realized his truck was leaking hydraulic fluid, and he believed this was the result of his earlier driving into the ditch before making the u-turn.

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