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Click here for the full text of this decision FACTS:On Feb. 16, 2001, promptly after a flood-induced chasm in Bowie County Road 4121 was discovered, warning signs were placed at the site by County employees. The next day, approximately one hour after the warning signs were removed � without the County’s knowledge � by some unknown third party, Annie Durham and Tonya Foster were killed when their car fell into that chasm. Velma Durham and Ricky Foster subsequently sued Bowie County, alleging wrongful death and seeking survivorship damages. Durham and Foster claim the Texas Tort Claims Act waived sovereign immunity. Texas Civil Practices & Remedies Code �101.001. The trial court found no waiver of sovereign immunity and granted Bowie County’s motion for summary judgment. HOLDING:Affirmed. “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.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235 (Tex. 1992). Statutorily defined as including “excavations or obstructions on highways, roads, or streets,” �101.022(b), special defects have been viewed generally by courts as conditions that present a threat to normal users of a road, Morse v. State, 905 S.W.2d 470 (Tex. App. � Beaumont 1995, writ denied). This is true even if the defect is not actually on the road itself or if the defect was created by natural forces, as opposed to an overt action by the governmental unit. For a condition to be a special defect, however, it must not only present a threat to the ordinary user of a roadway, but the danger must also be unexpected and unusual. State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784 (Tex. 1993). A special defect, as distinguished from a premise defect, is outside the ordinary course of events or longstanding and routine expectation. Harding v. Kaufman County, 119 S.W.3d 428 (Tex. App. Tyler 2003, no pet.). For example, when rain is accompanied by freezing temperatures, it is neither unexpected nor unusual for icy conditions to develop on a bridge. Likewise, it is neither unexpected nor unusual that flooding might occur at a low-water crossing during a thunderstorm. The summary judgment evidence in this case conclusively establishes that the Feb. 17, 2001, washout of County Road 4121 was a special defect within the meaning of the act. Bowie County employees described the dangerous condition in question as a hole extending almost entirely across the width of the roadway, approximately five to seven feet deep and impossible for a vehicle to travel safely over or around. Unlike the expectation of potholes and ruts on an unpaved rural road, the gaping, impassable hole left after the collapse of the culvert underlying County Road 4121 was outside the ordinary course of events or longstanding and routine expectation. The court holds, therefore, that the washout of County Road 4121 was a special defect under �101.022(b), making the sign removal exception of �101.060(a)(3) inapplicable. Noting that the emergency exception does not apply solely to traffic accidents involving emergency vehicles, the court concludes that, under the summary judgment evidence, the effects of the weather conditions faced by Bowie County were so serious and widespread that, under the circumstances, Bowie County conclusively proved it was reacting to an emergency situation when its employees placed the road closure signs. Durham and Foster, contending the provisions of the Texas Manual on Uniform Traffic Control Devices for Streets and Highways, 1980 edition, as amended by Revision Number 7 (“manual”), required Bowie County to place road closure signs according to specified criteria, argue that the County failed to comply with the manual and, therefore, could not have satisfied the second element of the emergency exception. Focusing on the portions of the Manual which Durham and Foster assert are, within the meaning of �101.055(2), “laws” or “ordinances” “applicable to emergency action” with which Bowie County did not comply, the court holds they are “laws” or “ordinances” but are not “applicable to emergency action.” By application of �101.060(c), sovereign immunity was not preserved under the sign removal exception set out in �101.060(a)(3). The court holds that, as a matter of law, Durham and Foster’s claims arose from the action of Bowie County employees reacting to an emergency situation and that, while the manual is a “law” or “ordinance,” the asserted portions of the manual were not “applicable to emergency action” within the meaning of �101.055(2). OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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