Issue: Can you recover from a City/State Government in Texas for injuries caused by a road defect?
Answer: No, you cannot. It’s almost impossible to recover for damages caused by road defects.
Discussion: Governmental entities are generally immune from liability based on the concept of “governmental immunity” (the Old English concept of you can’t sue the King). That immunity has been waived to a very limited extent based upon the Texas Tort Claims Act.1
When it comes to road defects, there are two potential claims. The first requires proof that the hazard is a “special defect,” which Texas case law defines as something like a large ditch or excavation that would cause a car to crash. Texas Supreme Court and Appellate Court cases have made it clear that a special defect for a bike and a car is the same. If it wouldn’t cause a car to crash (like say a 10’ drop-off), then it’s not a special defect for a bike. There is no Texas case that has ruled that a cycling road hazard like a pothole, grate, unequal pavement, etc. was a “special defect.”
The theory of liability is based on a “premises liability” claim under which the cyclist must prove that the City or State had “actual knowledge” of the defect. Actual knowledge means just that. You must prove that the government entity was aware that a hazard actually existed at the time of the incident. “Should have known” (constructive knowledge) doesn’t suffice.
As shown below, proving actual knowledge is almost impossible, but even if the entity had “actual knowledge,” if the defect is “open and obvious” then the entity could still avoid liability.2
Paper is Bad For Cyclists: The definitive case involving cyclists and road defects is the Texas Supreme Court’s 2012 decision in City of Denton v. Paper, 376 S.W.2d 762 (2012).3 A cyclist fell as a result of a pothole that was near a sewer. The Texas Supreme Court first ruled that pothole was not a “special defect.”
Regarding the “actual notice” issue, the evidence showed that the City had repaired the pothole the week before. According to maintenance employees, supposedly, the street was level. The City then had to return the next day for a subsequent repair because the sewer line had sunk. Despite the foregoing, the Texas Supreme Court found no actual notice stating:
“The City … had not received any complaints about the project or the street repair between the project's completion on March 23 and Paper's accident a week later on April 1.”
“The City arguably knew that the repaired area of the street might sink again but the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time. Awareness of a potential problem is not actual knowledge of an existing danger."
What the Paper case shows is that it’s almost impossible to prevail on a road defect case. To avoid liability, a government entity only has to say that when the repair work was done, everything was level and hazard free, and furthermore, that they had received no complaints after completing the work and the time of the incident.
What can you do as a cyclist? About the only thing is to take a picture of a defect, locate the responsible person with the City and send the picture. It hopefully will cause the City to fix the defect and thereby obviate an injury and a claim.
Reprinted by permission 1 An example is if a City employee negligently injures or kills someone while driving. Even so, damages are limited to $250,000. 2 After reviewing pictures of defects, Texas Appellate Courts have uniformly found that all defects are open and obvious and that the cyclist could have just gone around the defect. It is fair to surmise that most Texas Appellate Judges have not ridden a bike since they were preteens riding some clunker. 3 Paper did not involve a designated bike lane. There are two cases involving bike lanes. See below.