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Click here for the full text of this decision FACTS:Mary Andrews was driving herself and her husband down Highway 360 in October 1999. Andrews drove onto an unmarked piece of highway and drove off the embankment at the end. Her husband eventually died from the injuries he suffered in the accident. At the time and place of the accident, Highway 360 curves to the right, while a short stretch of pavement continues on straight ahead. The straight stretch is separated from the main roadway by a solid yellow striped line. The stretch is approximately 1,000 feet long, with an embankment at the end. The extension does not have road markings on it, it is different color from the main roadway, it is marked by orange plastic barrels, and the end of the stretch is marked by a red and white barricade. In a picture provided by Andrews, the embankment cannot be seen from the beginning of the extension, but the sign in front of the embankment is easily recognizable. The roadway had been in this condition since 1992, upon completion of a particular roadway project, and was intentionally left for future highway development. Andrews sued the Texas Department of Transportation, making several allegations that roughly felly into three categories: 1. negligent design of the roadway and adjacent extension; 2. negligent failure to install and maintain appropriate traffic control devices before and around the extension to warn the public of the potential danger of the embankment; and 3. negligent failure to properly inspect and maintain the existing traffic control devices in the area after notice that they were inadequate. They said there were no signs, barricades or other markers warning Andrews or other motorists of the road condition. As a “staged construction project,” Andrews continued, TXDOT had a duty to maintain traffic control devices in the area warning of the condition. Andrews specifically alleged that the embankment is a special defect, or, in the alternative, a premise defect. The trial court denied TXDOT’s plea to the jurisdiction, and this interlocutory appeal followed. HOLDING:Vacated and dismissed. The court agrees with TXDOT’s contention that the embankment at the end of the extension is not a special defect because it would not be encountered by normal roadway users. Andrews provided evidence that police officers use the area to turn around in. The officer who so testified also said that there had been at least one, and maybe as many as five accidents in the area (the one known accident was a DWI case). A witness to Andrews’ accident said the extension was painted just like a regular road up to the embankment. On the other hand, the court points out that at least 47 million drivers had passed through the area. The high volume of traffic and the correspondingly low number of accidents in the area indicate that the extension is not a condition encountered by normal roadway users. Furthermore, while the witness said the extension was marked like a highway to where it dropped off, Andrews presented no evidence disputing the existence of the yellow line, road delineators and barricade. And even if evidence that police officers used the extension as a turnaround shows some “normal use” of the extension, that normal use is limited to turning around, in which case the embankment would not be encountered. Having found that the embankment was not a special defect, the court then rules that it was not a premise defect, either. The court points out that roadway design is a discretionary function. Furthermore, the installation of safety features, such as barricades and signs, is part of that discretionary design. Sovereign immunity is not waived for such as claims based on discretionary functions. The court rejects Andrews’ contention that the use of barricades and signs is not part of the discretionary function. Instead, Andrews argues, the Texas Manual on Uniform Traffic Control Devices, the federal counterpart to that manual and the State Department of Highways Barricade and Construction Standards mandate various safety functions and precautions in similar situations, standards TXDOT allegedly did not follow. The court rules that the Texas manual does not set legal standards for liability under the Tort Claims Act. The statute authorizing implementation of the manual indicates that TXDOT may implement the standards imposed therein. Thus, any decision by TXDOT to alter the warning devices set forth in the state manual was discretionary. As for the federal manual, the court notes that Andrews failed to establish either that the federal manual imposed any mandatory duties on TXDOT, or that the roadway and extension actually did not conform to whatever standards the federal manual set forth. The barricade and construction standards refer to general standards a highway contractor must comply with. However, Andrews did not produce any portion of the contract between TXDOT and its contractor showing that either TXDOT or the contractor was required to abide by those standards. Again, there was no evidence that the standards were mandatory. The court addresses the alignment of the barrels dividing the extension from the main roadway. The court finds that there is evidence that the barrels were frequently knocked apart and had to be realigned. The court does not conclude, however, that this need for realignment raised a fact question as to whether TXDOT had notice that the barrels had been knocked out of alignment at the time of the accident. OPINION:Terri Livingston, J.; Livingston, Dauphinot and Walker, JJ. DISSENT:Lee Ann Dauphinot, J. “The majority holds that, although TXDOT undertook to install and maintain appropriate traffic control devices before and around the extension in question, it is immune from suit because this activity involves formulation of policy, not implementation of policy. I disagree.”

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