Supreme Court of Texas

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No. 21-0728

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Daniel K. Christ and Nicole D. Salinas,

Petitioners,

v.

Texas Department of Transportation, 

Respondent

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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 
2

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”).
3

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 noevidence 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.
4

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 premisesdefect claim. In addition, the Christs assert that the court of appeals 

erred in concluding TxDOT had discretion to alter the engineerapproved 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 
5

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 subjectmatter 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)).
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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)).
7

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 
8

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, selfservice 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 
9

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 premisesdefect 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 
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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 
11

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 
12

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 
13

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
14

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 
15

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.
16

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