Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On the evening of Jan. 16, 2004, Courtney Foreman was a passenger in a car approaching a bridge over the Pedernales River in Gillespie County. As the car neared the bridge, it slid off the roadway and into the river through a gap between the guardrail and the adjacent embankment. Courtney drowned. Barbara and Steven Foreman, Courtney’s parents, sued the Texas Department of Transportation; the county; the Allen Keller Co., a construction company; James Robbins, the car’s driver; and others in Travis County probate court. The Foremans brought their claims against TxDOT and the county pursuant to the Texas Tort Claims Act (TTCA), Texas Civil Practice & Remedies Code ��101.001-.109. The Foremans classified their claims into four categories: negligence, gross negligence, premises defect, and special defect or injury by traffic control device. They pleaded that venue was proper in Travis County as to TxDOT pursuant to �101.102(a), because part of the cause of action arose in Travis County. Similarly, they pleaded that venue was proper in Travis County for the other defendants under Texas Civil Practice & Remedies Code �15.005, because venue was proper in Travis County as to TxDOT. The basis for the Foremans’ claim that part of the cause of action arose in Travis County was that TxDOT, its bridge division and other defendants maintained offices in Travis County, where they entered into and performed, at least in part, their contract and job duties. The Foremans alleged that the negligent performance of those duties in Travis County resulted in the defective roadway and approach to the bridge where the accident occurred. TxDOT and the county filed motions to transfer venue to Gillespie County where the accident occurred. TxDOT asserted that the only claims which the plaintiffs properly could plead against it were claims for which the TTCA waived sovereign immunity, including the premises-defect and special-defect claims. TxDOT urged that, because any actions taken and decisions made by its employees before the accident were not part of those two causes of action, there was no properly pleaded cause of action on which to sustain venue in Travis County. Gillespie County concurred in TxDOT’s position and also asserted that, regardless of whether all or some of the cause of action took place in Travis County, �15.015 made venue in Gillespie County mandatory for claims against the county. A Travis County trial court denied the motions to transfer venue. The 3rd Court of Appeals denied mandamus relief. TxDOT and the county then sought mandamus relief from the Texas Supreme Court. HOLDING:Mandamus relief conditionally granted. Section 15.016, the court stated, provides that if a separate mandatory venue provision governs an action, then a plaintiff must bring an action in the county required by the separate venue provision. Section 101.102(a) is such a mandatory provision. It requires plaintiffs to bring claims made pursuant to the TTCA in the county in which all or a part of the cause of action arose. Section 15.0642, the court stated, also authorizes parties to seek mandamus relief to enforce its mandatory venue provisions. In seeking mandamus under �15.0642, the court stated, a party need not prove the lack of an adequate appellate remedy but need only show that the trial court abused its discretion by failing to transfer the case. The Foremans did not contest TxDOT’s assertion that for venue to be proper in Travis County one of the Foremans’ claims under the TTCA must have arisen at least in part in Travis County. Citing the Texas Supreme Court’s 1994 decision in Wilson v. Texas Parks & Wildlife Department, the Foremans claimed that negligent decisions and actions by TxDOT employees and agents in Travis County resulted in the condition of the premises at the accident site in Gillespie County and are part of a premises-defect or special-defect cause of action. But in finding against the Foremans on venue, the court distinguished between causes of action based on negligent activities and those based on premise defects. A negligent-activity claim, the court stated, arises from activity contemporaneous with the occurrence, whereas a premises defect claim is based on the property itself being unsafe. Only the former would be grounds for venue in Travis County under the facts of the Foremans’ case, the court found. Specifically, the court stated, the Foremans alleged that TxDOT failed to use ordinary care in designing, inspecting, maintaining, and employing others to inspect and maintain the bridge and surrounding roadway. But they did not allege that such activities were actively ongoing at the time of the accident. As a result, the court found that the Foremans did not properly plead a contemporaneous-activity negligence cause of action alleging negligent actions or omissions that took place in Travis County. Thus, the court held that the Foremans failed to properly plead a negligence cause of action for which Travis County would be proper venue. The Foremans, the court noted, also sought to establish venue in Travis County by alleging an injury by traffic control device under Texas Civil Practice & Remedies Code �101.060. But the court stated that �101.060 does not create a cause of action separate and apart from a premises-defect cause of action. For similar reasons, the court stated, the Foremans’ claim that TxDOT is liable pursuant to a joint enterprise theory also failed to establish venue in Travis County. In sum, the court found that the Foremans properly pleaded premises-defect and special-defect causes of action but not venue, because neither of those claims arose in Travis County. Allegations and evidence, the court found, of TxDOT’s employees’ knowledge, decisions or failure to make decisions in Travis County as to the condition of the roadway and bridge in Gillespie County did not allege or constitute prima facie evidence that part of the cause of action arose in Travis County. OPINION:Per curiam.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.