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Click here for the full text of this decision FACTS:On Oct. 17, 2004, Rhiannon Beynon was a passenger in the backseat of a car traveling at approximately 35 miles per hour along an unlit and undivided two-lane roadway with unimproved shoulders in Denton County. It was dark at the time, and the driver Mark Hilz moved the car to the edge of the roadway when he observed an oncoming vehicle driving in the center of the road with its bright lights on. As Hilz moved the car over, it dropped off the edge of the pavement, slid sideways, left the roadway, and punctured itself on the arm of a floodgate owned and maintained by Denton County. The floodgate arm, which is a metal pole that measures approximately 17 feet long, is attached to a metal base buried in the ground beside the roadway, and can swing in either direction, was unsecured and facing in the wrong direction into oncoming traffic. The tip of the floodgate arm was positioned approximately three feet from the edge of the roadway when it contacted the car tearing through the driver’s side door, part of the driver’s side front seat, Rhiannon’s leg and the floorboard of the passenger compartment where Rhiannon was sitting. Rhiannon’s leg was later amputated below her knee. Dianne Beynon and Roger Beynon, individually and as next friends of Rhiannon, a minor, sued Denton County for the injuries that she sustained in the accident, claiming that Denton County was negligent and that the floodgate arm constituted either a premise defect or a special defect for which Denton County had waived its immunity from suit pursuant to the applicable provisions of the Texas Tort Claims Act (TTCA). As to the special-defect claim, the Beynons alleged in part that the floodgate arm “presented a threat to vehicular passengers and other ordinary users of the roadway,” that Denton County “failed in its duty to exercise ordinary care in maintaining the pole in a way to protect” Rhiannon from the danger even though Denton “knew or should have known of the unreasonable risk posed by the gate and pole,” and that Denton County failed to adequately warn of the condition’s existence and make the condition reasonably safe. Denton County answered and filed a plea to the jurisdiction in response to the Beynons’ petition. Denton County asserted that the Beynons’ pleadings and claims did not fall within the TTCA’s limited waiver of governmental immunity from suit for personal injuries caused by a premise defect or special defect. As part of the supplemental brief to its plea to the jurisdiction, Denton County attached excerpts from the depositions of Hilz, Roger and Dianne Beynon, and Mike Burton, a Denton County road and bridge department foreman. The Beynons filed a response to Denton County’s plea to the jurisdiction, which included excerpts from the depositions of Jim Carter, the county commissioner for precinct four of Denton County; Burton and Hilz; affidavits of Carter and Andrew D. Irwin, an accident investigator and reconstructionist; and photographs of the accident scene and vehicle. The trial court ultimately granted Denton’s plea to the jurisdiction on the Beynons’ premise defect and negligence claims but denied the plea as to the special defect claim. An interlocutory appeal followed. In three issues, Denton County argued that the floodgate arm was not a special defect and that the Beynons failed to raise fact questions regarding whether Denton County knew or should have known that the floodgate arm was unsecured and whether Denton County failed to exercise ordinary care to protect Rhiannon from the floodgate arm. HOLDING:Affirmed. Under Texas Civil Practice & Remedies Code �101.021(2), a governmental unit may be liable for personal injuries caused by a condition of real property if the governmental unit would, were it a private person, be liable under Texas law. The standard of care that must be exercised by a governmental unit depends on whether the condition is classified as a premise defect or a special defect. If the condition is a special defect, then Denton County owed the Beynons the same duty that a private landowner owes an invitee, which requires a 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. Special defects, the court stated, include excavations or obstructions on highways, roads or streets. A defect need not occur upon the road surface itself to constitute a special defect if it is close enough to present a threat to the normal users of the road. A special defect must be something out of the ordinary course of events or distinguished by some unusual quality rather than a longstanding, routine or permanent condition. The court found the floodgate arm to be a special defect. At the time of the accident, the court noted that the floodgate arm was unsecured and facing oncoming traffic with the tip positioned approximately three feet from the edge of the roadway. Three feet from the edge of a road, even a road with unimproved shoulders, is a relatively small distance, the court stated. Thus, considering that the road was a two-lane road with an unimproved shoulder; that, aside from the unimproved shoulder, a normal user of the road has nowhere else to drive his or her vehicle but on the paved roadway; and that the tip of the floodgate arm was positioned only about three feet off the edge of the roadway when Hilz’s car contacted it, the court could not say that the floodgate arm was so far from the road that vehicular passengers and other normal users of the road were unlikely to encounter it. Rather, the floodgate arm, which is an instrument intended to block traffic on the road and, thus, is related to the roadway, was close enough to the road that it presented a threat to normal users of the road. Accordingly, the court held that the floodgate arm constituted a special defect of the kind covered by the TTCA and that Denton County waived its immunity from suit on this issue. In its second and third issues, Denton County argued that even if the floodgate arm was a special defect as that term is defined, it did not waive its immunity from suit, because it did not have actual or constructive knowledge that the floodgate arm was unsecured and because it exercised ordinary care to protect Rhiannon from the danger. Considering Burton’s testimony that the floodgate arm should have been secured and facing in the other direction if Denton’s procedures had been followed properly, Hilz’s testimony that he had no idea before the accident occurred that the floodgate arm was pointing towards oncoming traffic and other jurisdictional evidence, the court held that the Beynons raised a fact question as to whether Denton exercised ordinary care to protect Rhiannon from the danger of the unsecured floodgate arm. OPINION:Holman, J.; Holman, Gardner and McCoy, JJ.

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