# Texas Department of Transportation v. Andrews > Court of Appeals of Texas · January 6, 2005 · 155 S.W.3d 351 URL: https://www.frixlaw.com/law-library/cases/9755311 ## Case - **Full name:** TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Mary G. ANDREWS, Individually, Mary Elizabeth Andrews Crockett, Individually, Kathryn Andrews Anderton, Individually, and Charley J. Andrews, III, Individually, and All as Representatives of the Estate of Charley Julius Andrews, Appellees - **Court:** Court of Appeals of Texas - **Decided:** January 6, 2005 - **Citations:** 155 S.W.3d 351; 2004 WL 2109030 - **Precedential status:** Published - **Opinion:** Dissent by Dauphinot - **Judges:** Livingston, Dauphinot, Walker - **Cited by:** 37 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/9755311 ## Opinion text LEE ANN DAUPHINOT, Justice,' dissenting. The majority holds that, although TXDOT undertook to install and maintain appropriate traffic control devices before and around the extension in question, it is immune ¡from suit because this activity involves formulation of policy, not implementation of policy. I disagree. In general, the courts of this state have held that decisions made at a policy level instead of an operational level are exempt as policy decisions. 1 The Supreme Court of Texas pointed out that the deciding question is whether the allegedly negligent conduct involves policy formulation or policy implementation. 2 That is because a governmental entity’s negligent formulation of policy is immune from liability, while the negligent implementation of a policy will subject the entity to liability. 3 This rule corresponds to the rule that once a government has decided to perform a discretionary act, the act must be performed in a non-negligent manner. 4 Whether a governmental entity’s actions fall within its discretionary power is a question of law for the court to determine. 5 Texas courts are in agreement that “[mjaintenance activities undertaken at the operational level are not discretionary functions and are not immune from liability.” 6 The record before us reflects that sections 3F-1 and 6C-8 of the Texas Manual on Uniform Traffic Control Devices require that type III barricades, consisting of three horizontal rails with appropriate markings used to control traffic, be used in the following situations: 1. Roadway ends in a dead end or cul-de-sac with no outlet. 2. A ramp or lane closed for operational purposes. 3. The permanent or semipermanent closure or termination of a roadway. Drums or barrels, on the other hand, are typically channeling devices used to direct traffic into the appropriate lane. Nonetheless, TXDOT chose to block the closed roadway with drums, not barricades. Afterward, TXDOT’s daily maintenance and inspection of the drums, which they admit is required, consisted of hoping the maintenance supervisor would notice the placement of the drums on his way to work. TXDOT’s reason for the necessity of a daily inspection was that it expected some of the drums to get damaged and knocked apart frequently. Mark Schluter, an area engineer for TXDOT, testified: *363 Q. Okay. But the reason you inspect them every day is because you expect some of them to get damaged and knocked apart and lost? A. Yes, sir. Q. All right. But yet on this roadway, even though you’re only using channeling devices in a fifty-mile-an-hour interstate freeway system, there is no routine inspection to see that they are put back in alignment every day. Is that what you’re telling the jury? A. No, sir. Actually, the maintenance supervisor comes in every morning to work, so hopefully he would notice that. Q. Well, I would like to hope that myself, sir, but what records do I have to show this jury that in fact it was done? A. Don’t have any. Q. So it’s just trust me, believe me, I love you? Is that it? A. Yes, sir. The condition and placement of the barrels at the time the Andrewses’ car entered the extension was disputed. Eyewitness Michael Samuel Houston testified: Q. Were you aware of the presence of barrels or barricades at — on 360 just at the part where the road transitions to the right? A. Yes, at times — I don’t know if they were there when this crash occurred or not. Q. Okay. A. But I know in the past I have seen barrels there— Q. Okay. A. —and possibly, you know — I do remember at one point, and I’ve driven this road since 1993 when I first moved here, maybe three barrels across with a rope across. On this day, I — there was no rope. There may have been a barrel or two, but I don’t know. I can’t tell you. Q. Did you have the impression that the barrels were not in proper alignment on this particular day? A. Oh, yeah. Q. Okay. A. Yeah, because the, the van just, you know, went straight up, up the hill there— Marilyn Ruth Hall, who witnessed the Andrewses’ entry into the extension and fall from the end of the pavement, testified: Q. Did you see some barricades or some sort of device in the area where Ms. Andrews’ vehicle went? [[Image here]] A. There was two big sand barrels but they were spaced way far apart. They should have been spaced a lot closer together and there was a barricade at the end of the — I guess ramp, you would call it. And that was just like a goal post ramp, kind of. Q. Did you actually see the sign at the end of the ramp? A. There was no sign. There was the barricade Q. You also indicated that you had mentioned to your daughter or someone prior to this accident, that this location is very confusing? A. Yes. Q. And tell us again, ma’am, the Judge and jury, why you feel like this particular location is confusing? A. Well, just the way the road veers that way. It’s — to me it’s very confusing and I don’t understand why they did it. Q. Okay. A. It’s not marked good enough to keep people out of there. *364 The majority says that we should look only to the condition of the barricade at the end of the extension and not to the condition of the devices for preventing entry. I disagree, and, at best, the majority’s conclusion is based on disputed evidence. The majority bases its position on TXDOT’s argument that the injury occurred 1000 feet from the entrance to the extension. The Andrewses’ contention is that part of the problem is that motor vehicles were not adequately protected from inadvertent entry into an uncompleted extension that ended in a fifteen-foot drop-off. The speed limit at the entry to the extension was fifty miles per hour. A car traveling at that speed would reach the end of the extension in approximately fifteen seconds. Allowing for braking time, the danger to a vehicle entering the extension was imminent. Police Officer Scott Peterson testified: Q. Okay. How many other vehicles, to your, your personal knowledge, have driven off the embankment, the concrete down into the dirt below? A. I can only state one for sure— Q. Okay. A. —other accident that I have knowledge of that has happened there. Q. Okay. Isn’t it true that you’ve heard about a couple of more since the freeway opened? A. I have heard of others, yes. Q. Okay. And when you say others, would that be two or three or— A. It’s not a large number. I’ve heard from other officers that have made comments, not only in our city but by Fort Worth officers that work that area, that they have worked accidents, but they’ve never indicated a number or how many, and I haven’t ever seen a report to reflect that. Q. Okay. Based upon your general knowledge, would you say that that would be somewhere in the neighborhood of a couple or more to a maximum of five more vehicles that have driven off? A. I would say— MR. PEARCE: Objection to the form of the question. Subject to that, go ahead and answer. A. I would say that would be an accurate assumption. Q. Okay. An accurate reflection on the — what the import of these — the meaning of what these other officers have told you, even though you’re not going to pin it down because you can’t? A. Right. Certainly, based on the record before us, TXDOT did not establish immunity. Because there are disputed issues of fact regarding jurisdiction, the trial court did not err in denying TXDOT’s plea to the jurisdiction. For these reasons, I must respectfully dissent from the majority’s opinion. I would affirm the trial court’s denial of TXDOT’s plea to the jurisdiction and would hold that Appellees are entitled to their day in court. . McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex.App.-Fort Worth 1991, no writ). . State v. Terrell, 588 S.W.2d 784, 787 (Tex.1979). . Alvarado v. City of Brownsville, 865 S.W.2d 148, 156 (Tex.App.-Corpus Christi 1993), rev’d on other grounds, 897 S.W.2d 750 (Tex.1995). . Norton v. Brazos County, 640 S.W.2d 690, 693 (Tex.App.-Houston [14th Dist.] 1982, no writ). . McKinney, 814 S.W.2d at 867 . . Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755311. Public record. Not legal advice.