stating that “Sections 101.022 [the TTCA provision setting out the duty owed in 10 claims arising from premise and special defects] and 101.060, read together, establish the duty owed by the State to a plaintiff who sues under a premises liability claim involving a traffic signal” but noting that a traffic-signal claim is not always a premises liability claim
How later courts described this case
- stating that “Sections 101.022 [the TTCA provision setting out the duty owed in 10 claims arising from premise and special defects] and 101.060, read together, establish the duty owed by the State to a plaintiff who sues under a premises liability claim involving a traffic signal” but noting that a traffic-signal claim is not always a premises liability claim
- recognizing that "Sections 101.022 and 101.060, read together, establish the duty owed by the State to a plaintiff who sues under a premises liability claim involving a traffic signal" (emphasis original)
- concluding that car accident that occurred at intersection where employee had turned off traffic signal during ongoing repair resulted from negligent activity
- holding that the exclusive mode and measure of liability for which the State is willing to waive sovereign immunity is for money damages
Written by the judges who cited it.
The opinion
ROBERTSON, Justice,
concurring and dissenting.
I respectfully dissent to the affirmance of the finding of liability. However, since the other two justices are in disagreement on the award of prejudgment interest, I concur in Justice Cannon’s conclusion that the trial court judgment be modified to delete that award.
Appellee’s Second Amended Petition, upon which trial was had, only alleged the following as actionable negligence:
Your Plaintiffs would show that it has become necessary to bring this lawsuit by reason of injuries and damages suffered by your Plaintiffs on the 20th day of September, 1988 arising out of a motor vehicle *472 collision at the intersection of FM 2004 and State Highway 332 in Lake Jackson, Bra-zoria County, Texas. Your Plaintiffs would show that on or about that date REINHARD RICHARD RAMMING was operating his motor vehicle in a reasonable and prudent manner in an easterly direction on State Highway 332. Your Defendant LISA ANN VACKAR 1 was operating her vehicle in a southerly direction on FM 2004. WILLIAM J. KILPA-TRICK, who at all times material hereto was acting within the course and scope of his employment as an agent, servant and/or employee of your Defendants THE STATE OF TEXAS and STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, was engaged in work on the traffic signals located at said intersection, checking the wiring and obtaining amperage readings on the wires in the traffic signal control box. In so doing he failed to properly inspect the wiring and dislodged the main wire which feeds the power to the traffic signals. The wife in question was loose, having been negligently installed, connected, maintained and/or inspected by agents, servants and/or employees of Defendant THE STATE OF TEXAS and STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION. At the time the main wire became dislodged, the traffic signals in question ceased to function properly to control traffic at the intersection at FM 2004 and State Highway 332. KILPATRICK failed to post any warnings or flagmen or otherwise advise the public of the work being performed before dislodging the main wire, nor did he do so after he dislodged the wire. Further, after dislodging the main wire he went to the breaker box and turned off the breaker, again without taking any steps to warn the traveling public. The above described acts and omissions on the part of KILPATRICK and the other agents, servants and/or employees or Defendant THE STATE OF TEXAS and STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION were negligent and constituted negligence, and were each and all a proximate cause of the occurrence in question. As a consequence thereof, a collision occurred at the intersection in which your Plaintiff REIN-HARD RICHARD RAMMING’s vehicle was struck with great force and violence by the vehicle being operated by your Defendant LISA ANN VACKAR.
Your Plaintiffs would respectfully show that nothing REINHARD RICHARD RAMMING did or failed to do caused or in any way contributed to cause the occurrence in question. On the contrary, the collision in question and the injuries and damages suffered' by your Plaintiffs were proximately caused by the negligence of your Defendants THE STATE OF TEXAS and STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION acting by and through their agents, servants and/or employees, as well as that of your Defendant LISA ANN VACKAR. Your Defendants THE STATE OF TEXAS and STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION are responsible to your Plaintiffs in damages under the doctrine of “respondeat superior” and pursuant to the Texas Torts Claims Act for the negligent acts and omission of KILPATRICK, as well as those of their agents, servants and/or employees who installed and/or maintained the control box and the wiring therein, and who negligently failed to properly secure the main wire in question. Further, your Defendants THE STATE OF TEXAS and STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, their agents, servants and/or employees, were negligent in creating, maintaining and in failing to warn of and remedy a dangerous condition, of which they knew or in the exercise of ordinary care should have known, which negligence was likewise a proximate cause of the occurrence in question.
Justice Cannon’s opinion sets forth the negligence question submitted to the jury *473 and appellant’s requested instructions; thus there is no need to repeat them here.
Sovereign immunity to suit is waived and abolished only to the extent of liability created by the Tort Claims Act. Tex.Civ.Prac. & Rem.Code Ann. § 101.025 (Vernon 1986 and Supp.1993); Mount Pleasant Ind. Sch. D. v. Lindburg, 766 S.W.2d 208 (Tex.1989).
The majority opinion ignores the exemption of liability provided by § 101.060(a)(2). This section clearly states that this chapter, the waiver of sovereign immunity, does not apply to claims arising from the absence, condition, or malfunction of a traffic or road sign, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice. The accident between Mr. Ramming and Ms. Vaekar occurred because the traffic signal was not functioning. The claim arose from the condition of the signal. The Rammings had no cause of action unless they met the requirements of § 101.060.
The majority correctly concludes that sections 101.022 and 101.060 establish the duty owed by the state to a plaintiff who sues under a premises liability claim involving a traffic signal. It is my belief that if the Rammings had a cause of action, it was for a premise defect. However, in order to recover for an ordinary premise defect, the claimant must prove: (1) a condition of the premises created an unreasonable risk of harm; (2) the owner actually knew of the condition; (3) the licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger, and (5) the owner’s failure was a proximate cause of the injury. State Dept, of Highways v. Payne, 838 S.W.2d-235, 237 (Tex.1992). These findings cannot be deemed in the Rammings’ favor because the state objected to the omission by requesting a jury instruction on the issues. Id. at 241.
The majority ignores the plain wording of 101.060 and concludes that it does not apply to the facts of this case. It reads into the statute language that is not there. If the majority did not add these additional requirements to 101.060, it could not affirm the trial court’s judgment. The Rammings failed to state any other cause of action that would waive the state’s immunity. The Rammings and the majority claim waiver occurred under § 101.021(2) alleging the accident was caused by a condition or use of tangible personal property. I disagree that the Ram-mings’ injuries were the result of the use of tangible personal property or the suggested failure to use tangible personal property.
The judgment should be reversed and here rendered in favor of the state.
. Lisa Ann Vackar was non-suited prior to trial.