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Click here for the full text of this decision FACTS:Stephanie Gutierrez was injured in a motor vehicle accident, on a curve of FM 624 in Jim Wells County, at approximately 6:30 a.m. on Dec. 5, 2003. At the time, The Texas Department of Transportation (TxDOT) was repairing FM 624, a three-day process that involved tearing up the road surface and mixing cement with the milled pavement before applying the seal coat. As part of such road repairs, a seal coat is applied. To apply the seal coat, the roadway is swept, a layer of hot asphalt is applied, a layer of aggregate rock (gravel) is placed down, the aggregate is rolled to make it compact, and finally a second layer of hot asphalt and gravel is applied. Generally, after a layer of hot asphalt and gravel are applied, TxDOT waits for the seal to set before sweeping the excess gravel off the road. In this case, the second layer of hot asphalt and gravel was applied on Dec. 4, 2003, but not swept until the afternoon of Dec. 5, 2003. Before the road repair, a “Curve Ahead” sign with a speed advisory of 45 miles per hour was in place. Coinciding with the road repair, TxDOT posted a “Loose Gravel” sign. On the morning in question, Gutierrez was driving on FM 624 and her husband, Ronnie, was following several minutes behind. After Stephanie lost control of her car on the loose gravel, she called her husband and pulled off the roadway to inspect her car for damage. Her husband arrived. Next, Veronica Maldonado lost control of her car, at the same curve, and struck Stephanie. Maldonado testified she traveled FM 624 every day, that she noticed the curve and speed advisory signs and as she approached the curve, slowed her vehicle to approximately 40 miles per hour. She further testified that she neither heard nor felt gravel hit her vehicle before she began to lose control and never saw Stephanie before colliding with her. During trial, the Gutierrezes disputed TxDOT’s claim of a Loose Gravel sign posted near the curve. However, after the close of evidence, and before closing arguments, the Gutierrezes stipulated to the presence of the Loose Gravel sign. Following trial on the merits, the jury returned a verdict in favor of Stephanie, finding TxDOT negligent with respect to the condition of the road. The jury determined TxDOT was not liable for Ronnie’s alleged bystander injury; however, the trial court granted Ronnie’s motion for new trial. The trial court denied TxDOT’s Motion for Judgment Notwithstanding the Verdict or, Alternatively, for a New Trial. Based on the plaintiffs’ stipulation regarding the Loose Gravel sign, TxDOT filed a post-trial plea to the jurisdiction arguing immunity under the Texas Tort Claims Act (TTCA), alleging its duty to warn was discharged as a matter of law by the placement of the signs. The trial court denied the plea, and this accelerated appeal ensued. TxDOT raised three issues on appeal, claiming that: 1. the Gutierrezes could not state an actionable premises-liability claim under the TTCA; 2. Ronnie’s bystander claim failed to invoke a waiver of TxDOT’s immunity; and 3. by failing to assert claims within the TTCA’s waiver, the Gutierrezes failed to invoke the district court’s subject matter jurisdiction. HOLDING:Affirmed. In Texas Civil Practice & Remedies Code �101.021(2), the TTCA provides that the state waives its sovereign immunity for “personal injury and death so caused by a condition or use of . . . real property if the governmental unit would, were it a private person, be liable to the claimant.” In a premises liability claim, the court stated, the duty owed by the governmental unit is dependent on the condition of the property. If the road condition is an ordinary premise defect, the state owes the same duty a private landowner owes a licensee. Generally, the duty a landowner owes a licensee is not to injure the licensee through willful, wanton or grossly negligent conduct. The owner must also warn the licensee of, or make reasonably safe, dangerous conditions of which the owner is aware and the licensee is not. If, however, the condition is a “special defect,” the state owes the same duty that a private landowner owes an invitee. That duty “requires the landowner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a condition of the premises of which the owner is or reasonably should be aware.” Under either theory, the plaintiff must prove the condition created an unreasonable risk of harm. TxDOT first argued the Gutierrezes failed to identify an actionable condition of real property under �101.022, because the gravel on FM 624 was not a defective condition posing an unreasonable risk of harm. The court upheld the jury’s implied finding to that effect, holding that sufficient evidence raised a fact issue regarding the defective condition. Second, the court ascertained the nature of the defect. Special defects, the court stated, are road conditions of the same type and class as excavations or obstructions that “unexpectedly and physically impair a car’s ability to travel on the road.” At least three other Texas appellate courts have determined that excessive gravel on the road constituted a special defect, the court stated. Reviewing the evidence, the court did the same, concluding that the excessive gravel in this instance qualified as a special defect. Third, TxDOT argued that it was not required to make the roadway reasonably safe, because it adequately warned of the condition. The court found, however, that the state would still waive its immunity if the detour’s alleged defects were special defects. The fact that the excessive gravel was a special defect created a duty for TxDOT to adequately warn the Gutierrezes of the hazardous condition of the road, the court stated. The evidence at trial supported a lack of adequate warning despite the placement of the Loose Gravel sign. Finally, TxDOT claimed that the Gutierrezes failed to establish an inadequate warning was the proximate cause of Stephanie’s injuries, because she knew about the defect at the time she was injured. But Stephanie’s knowledge of the road condition was relevant only if the defect in this case was a premises defect rather than a special defect. Because the court held that the condition was a special defect, Stephanie’s knowledge is irrelevant. The jury heard the evidence and impliedly found that the negligence of TxDOT proximately caused the occurrence. The court found that some evidence supported the jury’s finding. As for Ronnie’s bystander claim, the court found that a bystander can be considered a “person injured” for purposes of the TTCA thus resulting in a waiver of TxDOT’s sovereign immunity. OPINION:Simmons, J.; Stone and Simmons, JJ. DISSENT:Marion, J. “I must respectfully dissent because I do not believe the gravel on the road in this case rises to the level of a special defect.”

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