On August 29, 2012, the Texas Supreme Court had settled on City of Denton v. Paper. In a previous case, the defendant, Rachel Paper, sued the plaintiff, the City of Denton, after breaking numerous teeth when she collided on her bicycle. The case concerned a depressed section in the roadway. The question is, was the depressed section:
A hole almost as deep as a mechanical pencil (5.5 inches) situated close to the middle of the right lane which a bicyclist could not evade without intersecting into the lane for approaching traffic? Or:
A hole just two or so inches deep that could be evaded without driving into approaching traffic?
Which was it? Who has the authority to choose?
Both the Texas trial court and court of appeals believed that the hole similar to hole (a), which was mentioned above. Actually, the Texas court of appeals expressly concluded that Ms. Paper could not have steered around the depressed section and ensuing sharp edge without intersecting into the approaching traffic lane.
Under the Texas Constitution, the Texas Supreme Court is not endowed with the authority to establish facts and is instead restricted to deciding questions of law. However, in this instance, the Supreme Court chose—regardless of testimony that the hole was about as deep as a mechanical pencil—that it would suppose the depressed section’s depth differed from two inches to a few inches more at its deepest point and then concluded that, in contrast to the opinion by the court of appeals, it believed that the photographs point out that enough space was present for a bicycle to steer around this hole without having to enter the opposite traffic lane.
Having therefore settled on the hole’s physical character in a way in contrast to that established by the courts below, the Texas Supreme Court then maintained the hole was not a particular flaw under the Texas Tort Claims Act. The Tort Claims Act usually restricts the obligation of a governmental unit concerning a premises flaw to the obligation being indebted to a licensee on private property. When the premises-liability claim concerns a particular flaw, then again, the government’s obligation is not so restricted.
Tort Claims Act
The Tort Claims Act does not describe the term, particular flaw, except to say that they contain evacuations or impediments on highways, roads, or streets. Texas courts have interpreted particular flaws to contain other flaws of the similar type or group as two specifically cited in the statute. Whether a premises flaw is particular or common is normally a question of law.
The Texas Supreme Court concluded that the hole, which brought about Ms. Paper’s collision and injuries was not similar to an evacuation or impediment but somewhat one of the many disproportions in the roadway, which regrettably are to be anticipated and do not naturally offer an infrequent hazard to the traveler. Because of this, it decided that Paper provided no evidence that the City really was aware of a hazardous condition being present after conclusion of its work on Paper’s street the week prior to her accident. Therefore, the Texas Supreme Court set aside her case.