The cases below involve injuries caused by defects in bike lanes. In both cases, the government entities had performed repair work in or near the defects in the bike lanes. Both Courts ruled that the hazards were not “special defects.” As for actual knowledge, one Court found that the government entity had actual knowledge, and the other ruled to the contrary.
City of Richardson v. Phelps, 05-18-00753-CV (Tex. App. – Dallas, 2019). I represented the cyclist. In 2016, my client was on a casual social group ride called the “Sunday Roll.” The group of 18 riders was rolling along at 16-18 mph on a Richardson street with a designated bike lane. (See below.) The car on the right squeezed the group to the left, including my client. He didn’t see the lip because of the other cyclists. He went down hard and was injured.
I argued that the hazard was a “special defect” for the intended user. The Dallas Court of Appeals ruled otherwise.
As for the City’s actual knowledge of the defect, I was able to show that a cyclist had sent an email in 2014 with a photo to the City complaining of a defect in the same area. The City then came out and repaired that defect. After the repair, the bike lane was established and painted. At some point before the incident (2016), the City tried to repair the lip as shown by the picture below. This repair was done after the bike lane was created because the patch actually covered the right painted bike lane. City employees testified to this fact as well.
The Dallas Court of Appeals held that even though the City had known of a defect and repaired it before, that this was not “actual” knowledge that the defect existed at the time the patch was placed by the City because it is presumed that the City fixed the lip at the time the patch was placed. (Similar to Paper.)
Texas Dept. of Transportation v. Womac, No. 13-11-00460-CV (Tex. App. – Corpus Christi, 2012). This is a very similar case. I don’t have pictures, but here’s the description of the hazard:
[T]he road condition that caused Womac’s accident was caved-in concrete surrounding two drain covers near the curb of the bicycle lane. … [T]he caved-in area begins at the curb and extends approximately two feet into the bicycle lane; the deepest part of the cave-in appears to be four to five inches. [There was a] one-foot piece of rebar protruding from the caved-in concrete; the tip of the rebar extends several inches above the surface of the road. The cave-in spans approximately one-third of the bicycle lane; there is an approximately four to five feet area of undamaged roadway between the cave-in and the line marking the boundary between the bicycle lane and the roadway.
Sounds nasty. In any event, the Court found that the hazard was not a “special defect,” but did find that the DPS had actual knowledge of the defect because the DPS maintenance employees admitted that they applied “crack sealant” in the hole and that it required at least 3 different employees to look into the hole to apply it. In the opinion, the Court did not really deal with the timing of when the repair work was done.
Ms. Womac was badly injured. Her medical expenses were $332,737. She won at trial, but because of the Texas Tort Claims Act, she could only recover $250,000. (Suing Governmental Entities is really tough.)
