Kristopher Fraley, a deputy for the Brazos County Sheriff’s Department, had completed mandatory firearm training and was trying to leave the Texas A&M University campus when he ran into trouble at an unlit intersection on the evening of Oct. 18, 2017. Fraley’s car ended up in a drainage ditch at the recently altered junction, and he suffered serious injuries.
Now Fraley is attempting to revive his premises liability suit, arguing that he pleaded facts sufficient to waive the university’s governmental immunity under the Texas Tort Claims Act. Even if his pleadings were insufficient, he should be given the chance to replead his case, Fraley’s lawyer told the Texas Supreme Court Tuesday.
TAMU, represented by the Office of Attorney General, countered that an amended petition could not cure the jurisdictional defects and that the ruling by an intermediate court of appeals should stand.
The arguments highlighted the Supreme Court’s struggles to determine when sovereign immunity is waived in premises liability cases.
At one point, Justice Brett Busby jousted with Assistant Solicitor General Benjamin Wallace Mendelson about differing precedents on the question of whether a governmental entity must have actual knowledge of a dangerous condition. Mendelson referenced the court’s 2016 ruling upholding the dismissal of a University of Texas law professor’s lawsuit over an injury he suffered when he tripped over an improperly secured extension cord on campus. The court said that John Sampson failed to present evidence that UT had actual knowledge of the tripping hazard created by the extension cord.
“We have cases going both ways,” said Busby. “Why shouldn’t we clarify that all that is required is the defendant knew of the condition?” To require knowledge of the danger would change the standard “into something like recklessness, not negligence,” Busby said.
Fraley’s lawyer, Angus E. “Andy” McSwain, pointed to photos in the record to show that TAMU was aware of a dangerous condition created when it converted a four-way intersection into a “T” intersection with no lighting, warning or barricade in front of the ditch where the roadway used to be. If Fraley’s third amended petition did not state enough facts to support his claim that the university had actual knowledge, he should “get to have another go at it,” said McSwain of Waco’s Beard Kultgen Brophy Bostwick & Dickson.
Justice Jimmy Blacklock noted that the photos show a yield sign at the intersection, which TAMU could use as evidence that an ordinary user of the road would slow down enough to see the end of the roadway. McSwain said the drainage ditch was over a crest in the road and not visible from the yield sign.
Mendelson said that Fraley’s petition makes no mention of the drainage ditch as an off-road defect that could constitute a special defect under the tort law.
On Dec. 13, 2017, Fraley sued the Texas A&M University System for claims of premises defect, special defect and negligent implementation. The university two years later filed a plea to the jurisdiction claiming governmental immunity, which the trial court in Brazos County denied.
The Seventh Court of Appeals reversed, concluding the road changes were discretionary design decisions and not a special defect within the same class as an obstruction or excavation. The court of appeals said that Fraley did not plead any allegations of a misuse of tangible personal property, an exception to government immunity. The court of appeals dismissed Fraley’s claims rather than allow him to replead, saying that an amended petition could not cure the jurisdictional defects.
In briefing the case, McSwain said the court of appeals should have remanded the case to allow Fraley the opportunity to allege sufficient facts to show why and how TAMU failed to make the intersection safe due to its negligent implementation of a policy decision. He said TAMU’s actions in altering the road constitute a negligent implementation of policy not protected under the tort claims act.
“The sovereign immunity TAMU seeks is not available in this case, nor should it be. The area in question was a dangerous condition of property and/or a ‘special defect’ created by TAMU, which it failed to properly warn of and/or make safe,” McSwain said.
TAMU, in briefs filed by Michael Shaunessy of McGinnis Lochridge and the Office of Attorney General, said that Fraley has not identified any feature about the “T” intersection that was exceptional or remarkable. Engineering decisions about roadway design, signage or signals are discretionary acts of a governmental unit, for which sovereign immunity is not waived and that, as a matter of law, a “T” intersection is not a special defect, TAMU said.
“There is no basis to further amend Fraley’s safety features claim. No matter how specific Fraley makes his pleading, the nature of his claims are that TAMU System omitted certain safety features. These are by nature discretionary policy decisions, which do not, as a matter of law, waive sovereign immunity.”
The case number is 21-0784.