1 Johnson, C.J., not particip ating. NO. 07-03-0195-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A APRIL 26, 2005

______________________________ DARRELL AND LINDA SEHORN, IND IVIDUALLY AND AS LEGAL HE IRS AND REPRES ENTATIV ES OF TH E ESTAT E OF STACEY SEHORN, SHAWN REAMS AND NAKISHA HORTON, APPELLANTS V. TEXAS DEPARTMENT OF TRANSP ORTATION, APPELLEE

_________________________________ FROM THE 223RD DISTRICT COURT OF GRAY COUNTY; NO. 32106 ; HONORAB LE LEE W ATERS, J UDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. 1
MEMORAND UM OPINION Appella nts Darrell and Linda Sehorn, acting individually and on beha lf of the estate of their daughter Stacey Sehorn, Shawn Reams and Nakisha Horton appeal the dismissal of their suit for damages against the Texas Department of Transportation. The trial court dismissed it on the Department’s plea to the jurisdiction that argued the suit was barred by-2-

sovereign immunity. Appellants present a single point asserting the trial court’s dismissal
was error . We affir m the dis missal. StaceySehorn died, and Shawn Reams and Nakisha Horton were injured, when the vehicle in which they were passengers ran through the intersection of Loop 171 and Texas Highway273 sout h of Pamp a in Gray County. The inte rs ectio n is T-sh aped, wi th
so uthbound Loop 171 dead-ending at that point on Highway 273. Appellants’ p leading s said the vehicle crossed Highway 273, imp acted the ditch and became airborne, coming to rest in the adjacent pastu re. App ellants’ pleadings asserted t he intersection was dangerous, and drivers were not properlyand adequately warned of the approaching intersection and the approaching en d of the roadway. Specifically, appellants’ alleged, the Department “had in place numerous signs and warning devices, whic h w ere defective in that they were not properly sized, configured, and placed.” Appellants further alleged the Department had actual knowledge that the intersection was “dangerously d efective,” from the State’s accident records showing a number of motor vehicles had failed to stop and had run through the intersection into the pasture, in the same manner as this v ehicle. Appellants alleged the Department further had actual knowledge that the traffic signs and warnings in place were n ot performing their intended traffic control function

. They al leged th at the De partment, despite its actual k nowledg e, failed to warn t he publi c, and the se motori sts in pa rt icula r, of the defective roadway . By fail ing to co rrect, or warn of, the dangerous intersec tion, app ellants2 Reference to sections or the act are to Texas Civil Practice an d Remedies Code

Annotated (Vernon 1997) unless otherwise noted.

3 The report also makes reference to “well worn” rumble strips that were “almost ineffecti ve.” -3- pleaded, the Department breached its duty of care under Se c tions 101.021(2) and 101.022( a) of the Texas T ort Clai ms Act. 2 Photographs introduced at the hearing on the Department’splea to the jurisdiction showtraffic at the intersection at the time of the accident was controlled by a stop sign on Loop 171. D irecti onal signs with arrows identifying Highway 273 North and South stood facing the inte rsection across th at highway. The trial court also considered a report signed by registered professional engineer R. T. Abrahamson attached to the response appella nts filed to the Department’s plea to the jurisdiction. The report describes the signs that would be encountered by a southbound driver approach ing the in tersection. 3 It states, among other t hings, that the size of the stop sign “does not appe ar to be adequate,” that th e elevation of signs on the far side of the intersection was too low for normal viewing range for a southbound driver, and that the far side of

the intersection did not have a large “arrow board sign.” It notes also that the superelevation of High way 273 at the intersection is such that southbou nd drive rs on Loo p 171 can not see th e pavemen t on High way 273. Th e report further states that the “heig ht, line of sight, size, conspicuity, legibility, and target value of the s i gns described do not appear to meet/exceed standards” and that “[s]outhbound drivers d o not have adequate stimulus when ap proaching State Highway 2734 The accident report in the record gives the time of the accid ent as 2:45 a.m. The

report indicates the weather was cloudy and the pa vement was dry.

5 Darrell Sehorn also testifi ed at the hearing on jurisdiction. He identifie d photographs of the intersection d epicting skidmarks and the signs in place at the intersection at the time o f the accid ent and those later installed. He also critici zed the contours of the ditch on the far side of the intersection. -4- in darkness and/or inclement weather 4 to respon d in a ti mely ma nn er.” The report notes the speed limit for drivers approaching the intersection was 70 mph during the day and 65 mph at night. Abrahamson’s conclusions includethose that the section of the highway on which the accident occurred is dangerous based on th e number of incidents at the intersection involving southbound vehicles, and that revis i ng the signage and median pavementmarking provisio ns would signifi cant ly reduce accidents involving southbound drivers. 5
Standard of Review
The Dep artment’s plea to the jurisdiction challenged the district court’s su bject matter jurisdic tion ove r appell ants’ cl aims aga inst it. Texas Dep’t of Transp. v. Jo n es , 8 S.W.3d 636, 637 (Tex. 1999). The existence of the court’s subject matter jurisdiction is a legal question that

we review de novo

. Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex . 1998). Applicable Law
The State is immune from suit for damages unless it has expressly consen ted to be sued. Absent t he State’ s consen t, a trial court lacks subject matter jurisdiction over a suit-5-

againstthe State

. Jones , 8 S.W.3d at 638. This immunity applies to the Department, as
a state ent ity. Texas Dep’t of Transp. v. Garza , 70 S.W.3 d 802, 80 6 (T ex. 2002 ). Se e Wichita F

alls Sta te Hosp. v. Taylor , 106 S.W.3d 692, 694 n.1 (Tex. 2003). A party suing
a state entity must establish the State’s consent to the sui t, and may do so by reference

to
a statute or

a resolu tion gran ting exp ress legi slative permissi on. Jones , 8 S.W.3d at 638. To waive th e State’s

sovereig n immunit

y, a statu te or resolution must contain a clear and unambiguous express ion of th e Legisl ature’s waiver of imm unity. Wichita F alls Sta te Hosp. , 106 S.W. 3d at 696

. To the exte nt th e T exas Tort Claims Act creates liability, it wai ves the State’s sovereign immunity from suit for tort claims. § 101.025; Texas Dep’t of Transp. v. Ramirez , 74 S.W.3d 864, 866 (Tex. 2002). Section 101.021(2)of the Act provides for the liability of
a Texas governmental unit for personal injury and d eath c aused by a condition of real property if the governmental unit would, were it a priva te person, be liable to the claimant according to Texas law. Section 101.022(a)of the Act provides that for claims arising from premise defects, the governmental unit owes the claimant only the duty a private pe rson owes a licen see on pr ivate property, unless the claimant pays for the use of the premises.
The Act’s waiver of the State’s immuni ty is sub je ct to exclusions and exceptions, among w hich are those stated in Section 101.056, excl uding claims based on a governmental unit’s exercise of discretionary powers, and thosestated in Section 101.060, relating to traffic

and road control devices.-6- Analysis
The parties’ arguments on appeal center on the application of

Sections 101.056 and 101.060(a) to appellants’ allegations against the Department. The Department contends appellants’ allegat ions con cern the initial selection and placement of traffic control devices and the failure to modify these features, discretionary decisionsfor which the Department retains i mmunity. Appella nts seem to contend Section 101.056 does not exclude the Department’s failings with respect to the intersection from the Act’s waiver of immunity be cause Section 101.022 (a) imposes on the De partment t he duty to make the roadway safe or warn th e publicof its dangerous condition. Under appellants’ view, the Department therefore does nothave discretion to decide whether to comply wi th that duty, and their alle gations t he Departmentfailed to comply bring the case within the ambit of Sect i on 101.0 21(2). Controlling authority compels our disagreement with appell ants. T he exclusion for discreti onary

actions under Section 101.056 applies to suit s a ttempting to hold the Departmentresponsi ble for p remises d efects. See State ex rel. State Dep’t of Highways and Pub. Trans. v. Gonzalez , 82 S.W.3 d 322, 325 -26 (Tex . 2002); Ramirez , 74 S.W.3d at 866; Statev. Rodriguez , 985 S.W. 2d 83, 85(Tex. 19 99). Appellants also contend 101.056 has no application here because of the Department’s knowledge of th e dangerous condition of the inter section. The supreme court’s application of Section 101 .056 in Ramirez forec loses that contention. Ramirez involved premise defect claims that the Department had failed to correct or warn of a dangerous condition alleg edly created by a highway median’s slope and the absence of safety features between opposing lanes of traffic. Like6 The court in Miguel further stated: “A court should n ot s econd-guess a governmental unit’s decision about the type of marker or safety device that is the most appropri ate.” 2 S.W. 3d at 25 1, citing Maxwell , 880 S.W. 2d at 464

. See also Siders v. State , 970 S.W.2d 189, 192 (Tex.App.–Dallas 1998 , pet. denied) (“Lights, signs, a nd safety features a re part of a roadway design; therefore, the placement of stop signs and o the r safety features are discr

etionary in natur e and can not giverise to l iabilit y under th e Tort Claims A ct.”). -7- here, the plaintiff in Ramirez pre sented accident reports about similar accidents on the
same section of highway to establish its dangerou s c ondition and the Department’s knowledge of the da ngerous condition . In a pe r curiam o pinion, the supre me court
rever sed the court

of appea ls, whic h had aff irmed thetrial co urt’s den ial of th e Department’s plea to the jurisdiction, and dismissed the clai ms, finding the m barr ed by sovereign immunity

. The supr eme court cited Se ction 10 1.056(2) and reite rated itsholding in Rodriguez

that the design of a public work like a roadway is a discretiona ry function involving many policy decisions, and the governmental entity responsible may notbe sued for such dec isions. Ramirez , 74 S.W.3 d at 867, citing Rodriguez , 985 S.W.2d at 85. The court also restated its holding in State v. Miguel th at decisi ons abou t install ing safe ty features are discretionary decisions for which t he State may not be sued. Ramirez , 74 S.W.3d at 867, citing State v. Miguel , 2 S.W.3d 249, 251 (Tex. 19 99) (per c uriam) an d Maxwell v. Texas Dep’t of Transp. , 880 S.W. 2d 461, 4 63 (Tex. App.–Aus ti n 1994, w ri t denied). 6 Ramirez

establishes that an allegation the Department knew of the dangerous condition of the intersection does not preclude the application of the discretionary function exclusi on stated in Secti on101.05 6. Appella nts also assert S ection 101.060(a) does not bar their suit because to the
e xtenttheir claims are based on the signs and traffic control devices at the in tersection ,-8-

they come wit hin the l anguageof S ection 1 01.060(a)(2), relating to the condition of the signs and devices. They note the statement in Gonzalez , 82 S.W.3d at 327, that Section 101.060(a)(2) requires the State to maintain traffic signs in acondition sufficie nt to perf orm their intended traffic control function, and argue Section 101.06 0(a)(2) w aives the Department’s imm uni ty from suit for its failure to do so here when it was on notice of the defective conditi on of thecontrol devices fro m the numerous previous accidents. Again, controlling authority requires that we disagree.
In Gonzalez , the supreme court determined that a t raffic si gn’s sus ceptibil ity to vandalism is not a “co ndition”of the si gn under Section 101.060 (a)(2). Id. at 328-29. The supreme court al so consi dered themeaning of the te rm “condi tion” i n Texas Dep’t of Transp. v. Garza , 70 S.W .3d 80 2 (Tex. 2002). There, the court found a traffic sign that accuratelystated the established speed limit did not present a “condition” of the sign within the meaning of Section 101.060(a)(2) so as to permit a suit alleging the Department was negligent in fail ing to co rrect the 4 5-mph spe ed limit near a sc hool. Id . at 807. In so doing, the court stated that the “condition” of a traffic sign or signal referred to in Section 101.060(a)(2) is something “wrong” with the sign or signal. The court further summarized several prior decisions by noting it had found a waiver of immunity under the language of Section 101.060(a)(2) only when the sign or signal was unable to convey the intended traffic control information, or conveyed traffic control information other than what was intended. Id.
Even liberal ly constr ued, app ellants’ pleadin gs do not allege somethin g “wrong”with the traffic control devices for southbound traffic on Loop 171 approaching its intersection-9-

with Highway

273, in the sense case law has applied Section 101.060(a)(2). The signs in place are not allege d to be obstructed from drivers’ vision like that in Lorig v. City of Mission , 629 S.W.2d 6 9 9 (Tex. 1982) (per curiam), to state wrong information like the
erroneous speed limit in Alvarado v. City of Lubbock , 685 S.W.2d 64 6 (Tex. 1 985), or to mislead drivers like the modified red st op light with a left-turn arrow in Sparkman v. Maxwell , 519 S.W.2d 852 (Tex. 1975). Nor do appe llants’ pleadings assert the traffic control device s w ere in disrepair or were not activated, like the pa vement markers and school zone sign in City of Midland v. Sullivan , 33 S.W.3d 1 (Tex.App.–El Paso 2000, no pet.). As noted, appellants pleaded that the signs and warning devices in place at the t ime of the acci dent werenot prop erly size d, config ured, and placed. But it is clear from the pleadings and evidence presented here that they were sized, configured and placed in the
manner selected by

the Department. The propriety of those decisions by the Department does n ot reflect the “condition” of the signs and devices for purpose s of Section 101.060( a)(2). Garza , 70 S.W.3d at 807. Such decisions instead are the type for which the Act retains the State’ s immunit y from sui t. See Ramirez , 74 S.W.3 d at 867; Texas Dep’t of Transp. v. Bederka , 36 S.W.3 d 266, 27 1 (Tex.A pp.–Beau mont 2001 , no pet.)

. Appellants’ point of error is overruled. The trial court’s judgment of dismissal is affirmed. James T. Campbell Justice