Premises Liability: Darkness Is Not Obvious

The longest bridge in the state of Texas is the 2.4 mile long Queen Isabella Causeway, linking mainland Texas to South Padre Island. In 1995, a section of lights on the Causeway developed problems and eventually just stopped working. Letters back and forth from the Texas Department of Transportation and Cameron County confirmed the problems and discussed who was supposed to fix them. By 1996, over 30 streetlights were not functioning.

Around 3 a.m. in the morning, sometime in 1998, Nolan Brown was driving East on the Causeway toward South Padre island. He lost control of his truck, and it skidded into the concrete median, turned over and stopped on its side. Jeff Farrington, a passenger in the truck, climbed out through the sunroof. But before Brown could exit the truck, it was struck by another vehicle. Brown died at the scene. Farrington was further injured. Brown’s estate and Farrington both sued, among others, the State of Texas and Cameron County, claiming the lack of lighting was a premises defect.

Texas premises liability law applicable to licensees (a person who enters upon land for their own purposes) in a nutshell is generally this:

1. the defendant must be in possession (that is, it must own, occupy or control) of the premises where the injury occurred;

2. the defendant must not engage in willful, wanton or grossly negligent conduct that causes injury; and

3. the defendant must use ordinary care either to warn others of a condition that presents an unreasonable risk of harm of which the defendant is actually aware and the injured party is not, or to make the condition reasonably safe. A condition poses an unreasonable risk of harm for premises-defect purposes when there is such 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.

This whole case really seems to turn on the characterization of the defect. The majority opinion characterized the premises defect not as “darkness” but as a “sudden and unexpected change in driving conditions.” Darkness is open and obvious. A landowner is generally not required to warn someone or take extra precautions about an open and obvious premises defect, and prior to this case, this was generally thought to include darkness. But since the plaintiffs lawyers knew they’d lose if they relied on just darkness being the problem, they came up with the “sudden and unexpected change in driving conditions” characterization, and six Texas Supreme Court justices agreed.

One wonders how you could even warn someone about darkness. A sign obviously won’t work-by definition, you can’t see signs in the darkness. The majority’s answer to this seeming anomaly was to state that motorists should have been warned about the lack of lights at the beginning of the Causeway, where they still had a chance to turn around and not get on the bridge. Keep in mind this bridge is the only way to get back and forth between South Padre Island and the mainland. For this and many other reasons, the majority opinion makes absolutely no common sense to me. We can only hope that this ruling applies only to these facts, and does not establish a broad new principle.

The other three Justices never got over the fact that darkness is obvious. In the concurring opinion by Justices Jefferson and Owen, they write:

Darkness is certainly naturally occurring and a governmental entity’s failed attempts to protect against the dangers posed by darkness do not create an unreasonably dangerous condition. At some point along every highway, streetlights end, plunging drivers into darkness. And requiring governmental entities to shield drivers from every transition from light to dark along a roadway would be a heavy burden indeed….Darkness, however characterized, cannot constitute an unreasonably dangerous condition.

Justice Rodriquez appealed to the state Legislature to fix by statute the problems caused by the majority opinion.

Justice Hecht wrote perhaps the most creative opinion (forgive the length but I think he has a point):

Assume for me, if you will, that all roadways that are dark at night are unreasonably dangerous. This is hard, I know, since almost all of the roadways in the world are dark at night, and for that reason most cars are equipped with headlamps. But assume that darkness at night is unreasonably dangerous so that we can take that issue off the table. (As an aside, I should point out that sunshine can also make a roadway unreasonably dangerous because it gets in your eyes; but that is not this case, and the Court wisely reserves that issue for, as it were, another day.)…..Since nighttime darkness is nothing like an excavation or obstruction, Texas law leaves a plaintiff but one avenue (if you will) of recovery for damages caused by the relatively regular going down of the sun, and that is to prove that he could not see that it was dark…..

Now one might say: well, that’s impossible; any fool driving along can tell by looking whether a roadway is light or dark. But the Supreme Court of Texas is not any fool; it has an easy answer for such skepticism when ‘the dangerous condition alleged is not merely “darkness” but a failed block of artificial lighting that caused a sudden, unexpected and significant transition from light to darkness.’……Cameron County knew the lights were out on a section of the Queen Isabella Causeway for the same reason that Nolan Brown and Hector Martinez and anyone else driving along, or anyone else who just looked, knew it: because it was dark there.

Like any driver on any unlighted roadway in the world, Brown should have known when he came upon the dark part of the causeway that if he stopped for some reason, a driver coming along behind him might plough into him, and Martinez should have known that if he outran his headlights he might hit something…..What difference could it possibly have made to Brown had he known when he entered the causeway that part of it was unlit? He never thought he was going to wreck his truck, in the darkness or the light. No reasonable driver could possibly have thought, well, if part of this causeway is dark and I wreck my vehicle there, others may not be able to see me, so I’ll cross if it’s lit but if it’s not, I’m staying on the mainland.

While this case discusses premises liability and lighting in the context of whether Texas and Cameron County have sovereign immunity from such a suit, it is scary from the perspective of anyone who controls land, because it shows a court willing to consider lighting (or rather a lack thereof) as a premises defect. And so the obvious question is, how are your lights glowing tonight and what procedures do you have in place to keep them burning?


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