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County of Cameron v. Charlene Mills Brown, et al. makes some Texas lawyers and justices nervous — afraid the case will flip the switch on suits that involve premises liability claims against the government for failure to maintain street lighting. Now, after seven years of waiting, the suit of a survivor of a car wreck and the family of a man who died in the wreck may finally see the light of day in court. In an 8-1 ruling meant to be fact-intensive and restrictive, the Texas Supreme Court held that the plaintiffs may sue Cameron County and the Texas Department of Transportation for wrongful death and premises liability related to a fatal accident on the Queen Isabella Causeway. The plaintiffs — passenger Jeff Farrington and the family of Nolan Brown, the car’s driver who died from his injuries — allege the county and TxDOT’s failure to maintain a section of streetlights caused the car wreck on Texas’ longest bridge. But several justices believe the ruling will send lawyers running to the courthouse every time a car wreck occurs near a burned-out streetlight. Texas lawyers have been waiting for County of Cameron v. Charlene Mills Brown, et al., decided by the high court on May 23, because it may have implications for pending litigation involving the same bridge. In September 2001, a tugboat pulling barges struck the bridge’s support pillars; eight motorists plunged to their deaths. The plaintiffs in that case also allege that the bridge wasn’t lighted properly. Brown involves a 1996 car wreck on the Queen Isabella Causeway that connects mainland Texas to South Padre Island. Two men, Brown and Farrington, were riding on the 2.4-mile bridge at 3 a.m. when the vehicle turned over on its side. Farrington exited the vehicle safely. But as Brown attempted to get out from the driver’s side, another car struck the vehicle, killing Brown, according to court briefs. The plaintiffs alleged that TxDOT and Cameron County were at fault because they didn’t properly maintain the lighting installed on the bridge. Portions of the bridge were illuminated, but the section where the accident occurred allegedly was not, causing a hazard when motorists were plunged into sudden darkness, the plaintiffs alleged in their briefs. Defense lawyers representing the county and TxDOT argued that the government cannot be held liable for a danger as “open and obvious” as darkness. They also argued that a plaintiffs’ victory in the case could create a cause of action against state and county governments every time a streetlight went out. State district Judge Darrell Hester of Cameron County dismissed the plaintiffs’ case in 1998, finding that TxDOT and the county had sovereign immunity. Corpus Christi’s 13th Court of Appeals overturned that decision in 2000 and remanded the case for trial. The defendants subsequently appealed the case to the Texas Supreme Court on sovereign immunity grounds. But a majority opinion by Justice Harriet O’Neill found that the plaintiffs should be allowed to sue because Cameron County and TxDOT allegedly knew about the danger of the failed lights and did nothing. She also noted that malfunctioning lights posed a danger on the long, narrow bridge because they “caused a sudden, unexpected and significant transition from light into darkness.” As has become common when the supreme court rules for plaintiffs in sovereign immunity cases, the court found that the decision applies only to Brown‘s particular facts. “Governmental entities could face liability, they claim, for every streetlight that might flicker out,” O’Neill wrote. “But our holding is not so broad. A governmental unit’s sovereign immunity is not waived for failure to install lighting, which is a discretionary decision, or even for repairing lighting that has been installed if an unreasonably dangerous condition is not thereby created. Our decision rests upon the causeway’s unique characteristics and the nature of the particular dangerous condition alleged.” But in separate opinions, several justices expressed concern that Brown may affect the state’s jurisprudence more broadly by encouraging suits in which failed street lights are alleged to be premises defects. Justice Wallace Jefferson opined in a concurring opinion that the majority never spelled out what gives rise to a cause of action under the Texas Tort Claims Act for future street light cases, although he agreed with the majority’s conclusion. “In this area of governmental immunity, the court’s ‘I know it when I see it’ analysis exacts too great a price,” Wallace wrote in an opinion joined by Justice Priscilla Owen. “The resulting uncertainty from the court’s lack of guidance will, I fear, inundate courts with claims against state and local governments for what amounts to discretionary decisions involving the design and illumination of Texas roadways.” In another concurring opinion, Justice Xavier Rodriguez encouraged the Texas Legislature to address issues arising from the financial burden counties may face for maintaining street lighting. But in dissent, Justice Nathan Hecht marveled at the majority’s decision that burdens the government with liability for something so obvious. “It seems obvious that any driver moving down the road can see whether it is dark no matter how ‘sudden, unexpected and significant’ that darkness is,” Hecht wrote. Hecht complained that the majority was not forthright about the fact that its decision significantly alters premises liability law in Texas. “If the court’s ‘relevant inquiry’ is for real, then the law of premises liability has been changed fairly significantly — like light to dark,” Hecht wrote. “The burden on the governments of Texas will be felt, and we should just say so. If not, then we have not acted like a court.” FLOOD FEARS George Kraehe, an attorney with Albuquerque, N.M.’s Huffaker & Conway who represented Cameron County before the supreme court, fears the decision will open a “Pandora’s box” of streetlight cases and says the county will ask the high court to rehear the case. “I thought it was bizarre,” Kraehe says of the opinion. “It will create a great deal of confusion among people who represent government entities. I think they have broken the gates wide open.” Kraehe believes the effect of the decision is essentially a mandate that requires governments to keep the streets safe for negligent drivers. Tom Kelley, a spokesman with the Texas office of the attorney general, which represents TxDOT, says the office has not decided how to proceed in the case. But Brian Jensen, a Houston solo who represents the Brown family, says fears that the opinion will flood courts with litigation are unwarranted. Few cases will mirror the facts of Brown, he says. “I’m not sure how much this will expand Texas law. You have to show that the state of Texas knew about the danger and didn’t do anything about it,” Jensen says. “That’s pretty hard to prove,” Jensen says, pointing to evidence in Brown, including letters a county employee sent before the accident to a TxDOT official, that allegedly warned of the danger of the malfunctioning street lights. “Here we had letters flying back and forth for eight months discussing a dangerous situation. How often do you get that?” alleges Jensen. David Bright, a lawyer with Corpus Christi’s Watts & Heard who represents Farrington, agrees with Jensen’s assessment of the decision. “What’s tragic about this case is this case has been in litigation for a long time,” Bright says. “It’s taken this path through the appellate courts, and there have been more tragedies on that bridge, and the lights have continued not to work on that bridge.” To get to trial, according to the majority opinion in Brown, the plaintiffs will have to amend their pleadings to show they “did not actually know of the dangerous condition.” That should be easy to do, Bright says. But Bill Dorsaneo, a professor who teaches tort law at Southern Methodist University’s Dedman School of Law, doubts Brown will spawn street light litigation or that the Brown plaintiffs will prevail in a jury trial. “You wouldn’t really expect to make a very good living suing municipalities because a street bulb went out. You have to prove that you didn’t know that the street bulb was out,” Dorsaneo says. “Car wrecks are much better” cases to litigate, he says. The Brown plaintiffs’ lawyers may find that out in a jury trial, Dorsaneo says. “It will be hard for them [the plaintiffs] to prove that they didn’t know about the darkened condition,” Dorsaneo says. “Most people are going to be impressed by the fact that, ‘Yes, it’s dark at night.’”

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