STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Petitioner, v. Betty Lou KITCHEN and Charles Don Richards, Respondents, 867 S.W.2d 784

On Application FOR WRIT of ERROR to the Court of Appeals for the Thirteenth District of Texas PER CURIAM. The Per Curiam Opinion delivered on March 24, 1993 is withdrawn and the opinion of this date is substituted therefor. Plaintiffs in this case recovered damages against the State Department of Highways and Public Transportation for injuries resulting from a motor vehicle accident on an icy bridge. A closely divided court of appeals sitting en banc affirmed the judgment of the trial court, holding that an icy bridge is a special defect within the meaning of Tex.Civ. Prac. & Rem.Code § 101.022. 840 S.W.2d 505.

We disagree with the appeals court and reverse its judgment. Because there is no other basis to support plaintiffs’ recovery, we render judgment that plaintiffs take nothing. Calvin Kitchen was driving his pickup across a bridge early on a cold January morning when the vehicle skidded out of control on a patch of ice and collided with an oncoming truck. Kitchen was killed, and his passenger, Charles Richards, was injured. A standard “Watch for Ice on Bridge” sign with a warning light was posted before the bridge.

The sign could be folded open or shut, and it had been open with the light flashing for the three days immediately prior to the accident. The day before the accident, despite the persistence of freezing, wet weather, the Highway Department folded up the sign based upon National Weather Service forecasts of warmer, drier weather for the next day. The day of the accident, the State dispatched crews to reopen the signs, but when the accident occurred the sign at the bridge had not been reopened.

Kitchen’s widow and Richards sued the State for damages, alleging that the ice on the bridge was either a premise defect or a special defect, and that the State breached its duty to warn the travelers of the condition. The trial court submitted questions to the jury relating to both the premise defect and special defect theories of liability. One difference between these two theories is that liability for a premise defect requires a finding that the State actually knew of the dangerous condition. State Dept, of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992).

The jury found that the State’s negligent maintenance of the highway was the proximate cause of Kitchen and Richards’ injuries, and that the ice on the bridge was a dangerous condition which the State negligently failed to make safe. The jury refused to find, however, that the State had actual knowledge of the dangerous condition prior to the accident, that the State failed to correct the sign within a reasonable time of actual notice, or that the State was grossly negligent. The jury also refused to find that Kitchen had actual knowledge of the presence of the ice, or that he was negligent in any respect.

The trial court rendered judgment for the plaintiffs. Absent a finding that the State knew of the dangerous condition prior to the accident, it is not liable to plaintiffs unless the condition was a special defect. Id. Whether a condition is a special defect is a question of law. Id. at 238. Special defects are excavations or obstructions, Tex.Civ. PRAC. & Rem.Code § 101.022(b), or other conditions which “present an unexpected and unusual danger to ordinary users of roadways.” Payne, 838 S.W.2d at 238. An icy bridge, under the circumstances of this case, is not such a condition.

When there is precipitation accompanied by near-freezing temperatures, as in this case, an icy bridge is neither unexpected nor unusual, but rather, entirely predictable. Unlike an excavation or obstruction, an icy bridge is something motorists can and should anticipate when the weather is conducive to such a condition. The icy bridge in this case was a premise defect, and since the jury failed to find that the State was aware of the defect before the accident, the State is not liable to plaintiffs. Plaintiffs assert two other theories of liability, both of which fail.

First, they argue that by virtue of Calvin Kitchen’s payment of vehicle registration and licensing fees, he and Richards were invitees on the highway, and the State owed them that duty of care owed to business invitees. Such fees were not paid “for the use of the premises”, i.e., the highway, within the meaning of

section 101.022(

a) and did not make Kitchen and Richards invitees. Second, plaintiffs argue that the State was negligent per se in failing to provide for the efficient maintenance of the highways as required by Tex.Civ.Stat. Ann. art. 6674q-4. Plaintiffs contend that this statute protects all persons injured by highway conditions and imposes a higher duty on the State than its duty under § 101.-022 of the Tort Claims Act. We are obliged to read

article 6674q-4 and

section 101.022 together, however. The former imposes upon the State the responsibility to maintain its highways, but the latter determines the extent of the State’s liability for failing to do so. Accordingly, without hearing oral argument, a majority of the Court grants petitioner’s application for writ of error, reverses the judgment of the court of appeals, and renders judgment that plaintiffs take nothing against defendant. Tex.RApp.P. 170.