# Daniel K. Christ and Nicole D. Salinas v. Texas Department of Transportation

> Texas Supreme Court · February 10, 2023

URL: https://www.frixlaw.com/law-library/cases/9370307

## Case

- **Court:** Texas Supreme Court
- **Decided:** February 10, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9370307

## How later opinions describe it (automated extraction)

- concluding a highway “median’s slope and the lack of safety features, such as barriers or guardrails, reflect discretionary decisions for which TxDOT retains immunity” under Section 101.056
- noting the lack of previous injuries on a ramp or complaints about it and concluding that the ramp did not pose an unreasonable risk of harm

## Opinion text

Supreme Court of Texas
══════════
No. 21-0728
══════════

Daniel K. Christ and Nicole D. Salinas,
Petitioners,

v.

Texas Department of Transportation,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
═══════════════════════════════════════

Argued October 27, 2022

JUSTICE HUDDLE delivered the opinion of the Court.

While traveling through a roadway construction site, a
motorcyclist and his passenger wife collided head-on with a vehicle that
crossed into their lane. They sued several parties, including the Texas
Department of Transportation (TxDOT), alleging premises liability
based on the condition of the construction zone. In particular, they
contend that the demarcation of opposing travel lanes with painted
yellow stripes and buttons instead of the concrete barriers called for in
the project’s traffic control plan created an unreasonably dangerous
condition. We hold that the plaintiffs failed to raise a fact issue on
whether the substitution of stripes and buttons for concrete barriers
created such a condition. Accordingly, we affirm the court of appeals’
judgment dismissing the claim against TxDOT.
I. Background
On a late night, Daniel Christ and his wife, Nicole Salinas
(together, the Christs), were riding their motorcycle through a
construction zone on Bay Area Boulevard when they collided head-on
with a vehicle that crossed into their lane.
TxDOT prepared the construction project’s traffic control plan,
which details changes to the road’s layout during certain phases of the
work.1 The plan called for the placement of concrete barriers between
the opposing travel lanes. But once construction was underway,
TxDOT’s contractor, Williams Brothers Construction Company,
determined there was not enough space for the concrete barriers.
Williams Brothers revised the traffic control plan, substituting painted
yellow stripes and buttons for the concrete barriers, and emailed the
revised plan to several individuals, including the consultant who
managed the project for TxDOT. All agree that TxDOT never approved
the revised plan in writing. But the parties dispute whether TxDOT
orally approved the change. Williams Brothers contends that TxDOT

1 A traffic control plan reflects the planned layout for the construction
area and how traffic will move through or around the area during various
phases of work. See TEX. DEP’T OF TRANSP., PROJECT DEVELOPMENT PROCESS
MANUAL ch. 5, § 9 (July 2019), http://onlinemanuals.txdot.gov/txdotmanuals/
pdp/index.htm (stating that a traffic control plan “consists of the . . . [s]equence
of construction staging/phasing plan” and “should clearly show provisions to
efficiently move users through or around a work zone”).

2
gave oral approval, so it proceeded to place the yellow stripes and
buttons between the lanes of opposing travel.
The Christs’ accident occurred a few months later. They initially
sued the driver of the other vehicle and its owner but later amended
their petition to add Williams Brothers and TxDOT as defendants.
TxDOT responded with a combined plea to the jurisdiction and no-
evidence motion for summary judgment, arguing (1) it retained
sovereign immunity under Section 101.056 of the Tort Claims Act
because roadway-design decisions are discretionary,2 and (2) the Christs
failed to present evidence creating a fact issue on the elements of their
premises-defect claim. The trial court denied TxDOT’s plea and motion,
and TxDOT filed an interlocutory appeal. See TEX. CIV. PRAC. & REM.
CODE § 51.014(a)(8).
The court of appeals reversed and dismissed for want of
jurisdiction. 644 S.W.3d 202, 212 (Tex. App.—Corpus Christi–Edinburg
2021). It first rejected the Christs’ contention that a special defect
existed for which TxDOT owed a duty to warn. Id. at 210–11; see TEX.

2 Section 101.056 of the Tort Claims Act, titled “Discretionary Powers,”
states:
This chapter does not apply to a claim based on:
(1) the failure of a governmental unit to perform an act
that the unit is not required by law to perform; or
(2) a governmental unit’s decision not to perform an act
or on its failure to make a decision on the performance
or nonperformance of an act if the law leaves the
performance or nonperformance of the act to the
discretion of the governmental unit.
TEX. CIV. PRAC. & REM. CODE § 101.056.

3
CIV. PRAC. & REM. CODE §§ 101.022(b), .060(c). The court then held that
Section 101.056’s protection for TxDOT’s discretionary design decisions
included the discretion to orally modify the traffic control plan. 644
S.W.3d at 211. Thus, the court held TxDOT retained its immunity from
suit. Id. at 212.
The Christs petitioned this Court for review. They contend the
court of appeals erred in concluding no special defect had been shown.
They also argue they adduced sufficient evidence to support a premises-
defect claim. In addition, the Christs assert that the court of appeals
erred in concluding TxDOT had discretion to alter the engineer-
approved traffic control plan as it did. They concede that TxDOT enjoys
discretion to design roadways but contend that once TxDOT reduced its
traffic control plan to a written, engineer-sealed plan, the Engineering
Practice Act precluded TxDOT from deviating from that plan absent a
written, engineer-sealed modification. See TEX. OCC. CODE § 1001.401(b)
(requiring engineers to place their seal on a plan, specification, plat, or
report); id. § 1001.407 (barring a political subdivision from constructing
a public work involving engineering without an engineer-prepared
plan). In the Christs’ view, the court of appeals wrongly classified
TxDOT’s modification as discretionary because the Engineering Practice
Act curtailed TxDOT’s discretion once its plan was reduced to writing
and sealed by an engineer.
In response, TxDOT contends the Christs failed to raise a fact
issue regarding the essential elements of their premises-defect claim, so
we should conclude the Christs’ suit is barred by immunity without
addressing the effect of the Engineering Practice Act on TxDOT’s

4
discretion. Alternatively, TxDOT argues the Engineering Practice Act
does not curtail TxDOT’s discretion, so sovereign immunity bars the
Christs’ suit regardless.
II. Applicable Law
Generally, the State of Texas and its agencies retain sovereign
immunity from suit unless the Legislature clearly and unambiguously
waives it. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115 (Tex.
2010). Because sovereign immunity implicates a trial court’s subject-
matter jurisdiction, it is properly asserted in a plea to the jurisdiction.
Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016);
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.
2004). “Whether a court has subject matter jurisdiction is a question of
law . . . .” Sampson, 500 S.W.3d at 384.
The Tort Claims Act waives sovereign immunity for personal
injuries caused by a condition of real property. TEX. CIV. PRAC. & REM.
CODE §§ 101.021(2), .025(a). If a plaintiff’s claim arises from a premises
defect, then the government’s duty is generally limited to “the duty that
a private person owes to a licensee on private property.” Id.
§ 101.022(a), (c). But this limitation on the government’s duty does not
apply to the duty to warn of special defects, a subset of premises defects
likened to excavations or obstructions on roadways. Id. § 101.022(b); see
id. § 101.060(c). For special defects, we have stated the government
owes a duty to warn that is the same as a private landowner owes an
invitee. E.g., Hayes, 327 S.W.3d at 116 (citing TEX. CIV. PRAC. & REM.
CODE § 101.022(b)).

5
Absent willful, wanton, or grossly negligent conduct, a plaintiff
asserting a premises defect under the Tort Claims Act, whether treated
as a licensee or invitee, must prove that “a condition of the premises
created an unreasonable risk of harm” to the claimant.3 State Dep’t of
Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).
We have also framed this element as asking “[w]hether a specific
condition is unreasonably dangerous.” United Supermarkets, LLC v.
McIntire, 646 S.W.3d 800, 802 (Tex. 2022). But there is no material
difference as to the framing because “[a] condition is unreasonably
dangerous if it presents an unreasonable risk of harm.” Brinson Ford,
Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007).
A condition creates an unreasonable risk of harm if “there is a
‘sufficient probability of a harmful event occurring that a reasonably
prudent person would have foreseen it or some similar event as likely to
happen.’” County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)
(quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex.
1970)). In determining whether a condition is unreasonably dangerous,
we consider several factors including “whether the relevant condition
was clearly marked, its size, whether it had previously caused injuries
or generated complaints, whether it substantially differed from
conditions in the same class of objects, and whether it was naturally
occurring.” United Supermarkets, 646 S.W.3d at 803. Another
consideration is “[w]hether the condition met applicable safety

3 We consider the elements of a common law premises-defect claim
when determining whether a premises defect exists under the Tort Claims Act.
Sampson, 500 S.W.3d at 387 (citing TEX. GOV’T CODE § 311.023(4)).

6
standards.” Martin v. Chick-Fil-A, No. 14-13-00025-CV, 2014 WL
465851, at *4 (Tex. App.—Houston [14th Dist.] Feb. 4, 2014, no pet.)
(citing Brinson Ford, 228 S.W.3d at 163).
Whether a condition is unreasonably dangerous is ordinarily a
fact question. United Supermarkets, 646 S.W.3d at 802. However, this
Court has held that certain innocuous or commonplace hazards are not
unreasonably dangerous as a matter of law, particularly when they have
not caused other injuries or been the subject of complaints. See id. For
example, we concluded last term that a 3/4-inch divot in a parking lot
was not unreasonably dangerous as a matter of law because small divots
in pavement are commonplace and this divot did not yield any other
complaints or injuries. Id. at 803. We have similarly held that a
pedestrian ramp that extended beyond its handrails at its bottom did
not pose an unreasonable risk of harm as a matter of law because the
unrailed portion of the ramp met applicable safety standards, was
outlined in yellow paint, rose only four inches above the sidewalk, and
had not been the source of any complaints or reported injuries over a
ten-year period. Brinson Ford, 228 S.W.3d at 162–63. And years
earlier, we concluded a rug in a showroom did not pose an unreasonable
risk of harm because there was no evidence that the rug was defective
or unusual or that anybody had previously tripped on it. Seideneck, 451
S.W.2d at 754–55. These authorities reflect that a common condition is
not unreasonably dangerous merely because it causes an injury.
Rather, to raise a fact issue as to whether a common condition
may support a premises-defect claim, we have required a claimant to
adduce evidence either of prior complaints or injuries or that some

7
surrounding circumstance transformed an everyday hazard into one
measurably more likely to cause injury. Compare H.E. Butt Grocery Co.
v. Resendez, 988 S.W.2d 218, 218–19 (Tex. 1999) (rejecting the plaintiff’s
claim that a grape display with railings on non-skid floors with mats
and cones nearby posed an unreasonable risk of harm because “there is
no evidence that the manner of display created an unreasonable risk”),
with Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex. 1983)
(holding that reasonable jurors could conclude that a slanted, self-
service bin holding grapes over a floor with no protective mat posed an
unreasonable risk of harm).
A claimant seeking to invoke the Tort Claims Act’s waiver of
immunity for premises liability must also demonstrate that the
governmental unit’s acts were not discretionary. That is because
Section 101.056 provides that the Act does not apply to a claim arising
from a governmental unit’s performance or nonperformance of an act if
the law leaves performance or nonperformance to the governmental
unit’s discretion. TEX. CIV. PRAC. & REM. CODE § 101.056. We have
repeatedly held that a governmental unit retains its sovereign immunity
under Section 101.056 for a claim based on the design of a roadway,
which we have described as an inherently discretionary function. Tex.
Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (concluding
a highway “median’s slope and the lack of safety features, such as
barriers or guardrails, reflect discretionary decisions for which TxDOT
retains immunity” under Section 101.056); State v. San Miguel, 2
S.W.3d 249, 251 (Tex. 1999) (“Decisions about highway design and about
what type of safety features to install are discretionary policy

8
decisions.”); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (“Design
of any public work, such as a roadway, is a discretionary function
involving many policy decisions, and the governmental entity
responsible may not be sued for such decisions.”), abrogated in part on
other grounds by Denton County v. Beynon, 283 S.W.3d 329, 331 n.11
(Tex. 2009).
III. Analysis
The parties urge different approaches to answering the ultimate
sovereign-immunity issue this case presents. The Christs focus on the
court of appeals’ conclusion that Section 101.056 bars their claim
against TxDOT. 644 S.W.3d at 211–12. They contend the Engineering
Practice Act limited TxDOT’s discretion to swap stripes and buttons for
concrete barriers and thus Section 101.056 never comes into play. See
TEX. OCC. CODE §§ 1001.401, .407. For its part, TxDOT contends that
Section 101.056 is an “exception” to the Tort Claims Act’s waiver of
immunity. Thus, TxDOT argues, the Court should address
Section 101.056 only if it first determines that the Christs adduced
sufficient evidence of the elements of their premises-defect claim to
invoke the waiver of immunity in Sections 101.021 and 101.022. See,
e.g., Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 664–65 (Tex.
2019) (referring to Section 101.056 as “the discretionary function
exception”). We agree with TxDOT on the antecedent issue: the Christs
failed to raise a fact issue on an essential element of their premises-
defect claim and thus failed to establish a waiver under the Tort Claims
Act in the first instance. Because this failure disposes of the Christs’
claim on familiar legal principles, we find it unnecessary to address the

9
novel question of how Section 101.056 and the Engineering Practice Act
interact.
A plea to the jurisdiction may challenge the pleadings or the
existence of jurisdictional facts. See Miranda, 133 S.W.3d at 226–27.
TxDOT challenged the existence of jurisdictional facts in its combined
plea to the jurisdiction and no-evidence motion for summary judgment.
The trial court was thus required to “review the relevant evidence to
determine whether a fact issue exists.” Hayes, 327 S.W.3d at 116; see
also id. (“[I]f the evidence is undisputed or fails to raise a fact question,
the trial court must rule on the plea as a matter of law.”). “[T]his
standard generally mirrors that of a summary judgment under Texas
Rule of Civil Procedure 166a(c).” Miranda, 133 S.W.3d at 228. So “we
take as true all evidence favorable to the plaintiff, indulging every
reasonable inference and resolving any doubts in the plaintiff’s favor” if
the evidence submitted implicates the merits of the case. Sampson, 500
S.W.3d at 384.
In the trial court, the Christs contended the unreasonably
dangerous condition on the roadway was the absence of concrete
barriers to demarcate opposing lanes of travel. Their response to
TxDOT’s combined plea and motion for summary judgment explained:
“by failing to place a . . . concrete barrier . . . an exceedingly dangerous
condition was created.” This focus is unsurprising as all TxDOT’s other
design choices were included in the engineer-sealed traffic control plan
and thus unquestionably would fall within Section 101.056’s scope. See,
e.g., San Miguel, 2 S.W.3d at 251 (“Decisions about highway design and
about what type of safety features to install are discretionary policy

10
decisions.”). The Christs effectively conceded the point in their response:
“Plaintiffs are not suing TxDOT based upon its discretionary highway
design. Instead, it is being sued because it willingly allowed its [traffic
control plan] to be deviated from in a major way when such deviation
made the construction zone where the collision occurred significantly,
unjustifiably and unreasonably dangerous.”
In this Court, the Christs’ description of the condition that they
contend was unreasonably dangerous is somewhat less precise. They
describe the condition as “an entire roadway lane that is poorly marked
with no physical separation at all, poorly lit, and placed in a chaotic
construction zone where east and westbound lanes are poorly
differentiated.” They also contend the vehicle that collided with their
motorcycle constituted a road hazard or obstruction. TxDOT, on the
other hand, maintains that the use of painted yellow stripes and buttons
instead of concrete barriers is the condition underlying the Christs’
claim.
The Christs’ assertion that the unreasonably dangerous condition
about which they complain includes the other driver’s vehicle, the site’s
lighting, and the purportedly chaotic nature of the site is untenable. For
starters, the other vehicle cannot be the dangerous condition giving rise
to their claim because we have held that “[a] fully operational motor
vehicle, making an illegal movement . . . , is neither a defect in the
highway premises nor an excavation or obstruction or similar condition.”
State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994). And the Christs
concede that every decision regarding the roadway’s design, save the
purported oral approval of stripes and buttons when the traffic control

11
plan called for concrete barriers, was a discretionary decision for which
TxDOT retained immunity under Section 101.056. See, e.g., Rodriguez,
985 S.W.2d at 85 (acknowledging a governmental unit may not be sued
for the design of roadways because it is a discretionary function). Thus,
the lone aspect of the roadway’s design that arguably could fall outside
Section 101.056’s scope is the use of painted stripes and buttons to
separate the opposing lanes of traffic when the engineer-sealed traffic
control plan called for concrete barriers.
We conclude that the Christs failed to raise a fact issue as to
whether the use of painted stripes and buttons instead of concrete
barriers created an unreasonably dangerous condition. There is no
claim by the Christs, nor evidence to suggest, that the stripes and
buttons themselves were defective in any respect. The only evidence
about the condition of the stripes and buttons is the undisputed
testimony from a Williams Brothers employee that the buttons were
TxDOT approved, citing the Texas Manual on Uniform Traffic Control
Devices. See Brinson Ford, 228 S.W.3d at 163 (concluding a ramp that
met safety standards and was outlined in yellow striping was not
unreasonably dangerous); Seideneck, 451 S.W.2d at 754–55 (concluding
a rug was not unreasonably dangerous in part because it was not
defective or unusual); Martin, 2014 WL 465851, at *5–6 (holding the
plaintiff failed to establish that a parking block on which a child tripped
was unreasonably dangerous when it was no different than other
parking blocks).
Nor is there evidence that any other accident or injury occurred
at the site or that TxDOT received any complaints about the stripes and

12
buttons in the months between their installation and the Christs’
accident. We have repeatedly cited the absence of complaints or reports
of injuries in concluding that ordinary, commonplace hazards are not
unreasonably dangerous conditions. See United Supermarkets, 646
S.W.3d at 803 (highlighting that a small divot did not yield other
complaints or injuries and concluding the divot did not pose an
unreasonable risk of harm); Brinson Ford, 228 S.W.3d at 163 (noting the
lack of previous injuries on a ramp or complaints about it and concluding
that the ramp did not pose an unreasonable risk of harm); Seideneck,
451 S.W.2d at 754 (“There is no evidence in this record that during the
time the rug had been on the floor anyone had previously tripped on it.”).
The use of painted stripes and buttons to separate travel lanes on
roadways is ordinary, commonplace, and standard engineering practice.
See TEX. DEP’T OF TRANSP., TEXAS MANUAL ON UNIFORM TRAFFIC
CONTROL DEVICES §§ 3B.01, .11 (Oct. 2014), https://ftp.txdot.gov/
pub/txdot-info/trf/tmutcd/2011-rev-2/revision-2.pdf (describing myriad
settings in which yellow stripes and buttons may be used to delineate
opposing travel lanes). And there is no evidence from which we can infer
that some aspect of the construction site rendered the use of painted
stripes and buttons more dangerous than usual, let alone unreasonably
dangerous. In Brookshire Grocery Co. v. Taylor, we concluded that a
soft-drink dispenser was not unreasonably dangerous because there was
no evidence the dispenser posed “a greater danger than one would
ordinarily encounter with such dispensers, or that customers, though
prone to spills, were any more prone around th[e] dispenser.” 222
S.W.3d 406, 408 (Tex. 2006). Brookshire Grocery distinguished Corbin

13
as an “exceptional case” where the store “admitted there was an
‘unusually high risk associated with its grape display.’” Id. (quoting
Corbin, 648 S.W.2d at 296). Following similar reasoning, we held a divot
that was “profoundly ordinary” did not pose an unreasonable risk of
harm as a matter of law. United Supermarkets, 646 S.W.3d at 803. As
in those cases, nothing here suggests the use of stripes and buttons was
any more dangerous than their use on other roads.
The Christs cite the other driver’s testimony that the roadway’s
curve or layout and the lack of warnings were factors that led her to
drive in the wrong travel lane. True, the yellow stripes and buttons were
easier to cross over than concrete barriers. But “[a] condition is not
unreasonably dangerous simply because it is not foolproof.” Brookshire
Grocery, 222 S.W.3d at 408. And whatever evidence the Christs may
cite to suggest that TxDOT failed to exercise reasonable care, such as
the alleged lack of adequate warning, is not evidence that the roadway
itself was unreasonably dangerous. See id. (“Taylor’s arguments that
there should have been more mats and warning signs are relevant to her
contention that Brookshire did not exercise reasonable care, but they
are not evidence that the dispenser itself was unreasonably
dangerous.”).
Furthermore, the mere fact that the use of yellow stripes and
buttons deviated from TxDOT’s traffic control plan does not, standing
alone, create a fact issue as to whether the resulting condition is
unreasonably dangerous. Indeed, the traffic control plan could have
called for stripes and buttons, and Williams Brothers might instead
have placed concrete barriers. To raise a fact issue regarding the

14
existence of an unreasonably dangerous condition, more is needed. Even
if one might contend that, all other things being equal, concrete barriers
are a better method for demarcating lanes of opposing traffic, that
contention is not evidence that the use of stripes and buttons created an
unreasonably dangerous condition.
For these reasons, the Christs failed to raise a fact issue as to
whether the use of yellow stripes and buttons on the roadway created
an unreasonably dangerous condition.4 Therefore, they failed to
demonstrate a waiver of TxDOT’s immunity under the Tort Claims Act.5
IV. Conclusion
The evidence that Williams Brothers substituted standard
TxDOT-approved painted stripes and buttons for concrete barriers does
not alone raise a fact issue as to an essential element of the Christs’
premises-defect claim: the existence of an unreasonably dangerous
condition. Because the Christs failed to create a fact issue regarding
this element of their premises-defect claim, they have not established a

4 Because the existence of an unreasonably dangerous condition is an
essential element of the Christs’ claim regardless of whether the condition
could be characterized as a special defect, we need not address that question.
5 We do not suggest that the use of painted stripes and buttons could
never create an unreasonably dangerous condition. There may be situations
in which a roadway’s stripes and buttons are defective or otherwise do not
comply with applicable safety standards or in which others have previously
complained about the particular manner in which stripes and buttons were
used at a specific location. Or a plaintiff may present expert testimony
describing how the particular use of stripes and buttons increased the risk of
harm. But see United Supermarkets, 646 S.W.3d at 804 (“[E]xpert testimony
does not create a fact issue as to whether a condition is unreasonably
dangerous when undisputed, material facts demonstrate that it is not.”). While
the evidence presented here was insufficient, our decision should not be read
to foreclose liability in every such case.

15
waiver of sovereign immunity under the Tort Claims Act. We affirm the
judgment of the court of appeals dismissing the Christs’ claim against
TxDOT.

Rebeca A. Huddle
Justice

OPINION DELIVERED: February 10, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9370307. Public record. Not legal advice.