In the present case, too, a private analog exists where plaintiff's claim against the State is comparable to recognized causes of action that may be brought against private persons who own or control roads. See Department of Hwys. Pub. Transp. v. Bacon, 754 S.W.2d 279 281 (Tex. Ct. App. 1988) (in plaintiff's action against state for failing to warn of icy conditions, "[t]he duty owed by the State is the same as the duty owed by a private person to a licensee on private property"); cf. Restatement (Second) of Torts § 342 comment d, illustration 2 (1965) (where A owns road and invites B to drive on that road, A liable for failure to warn B of dangerous condition); id. § 367 (private liability for dangerous condition on land appearing to be highway); Reider v. City of Spring Lake Park, 480 N.W.2d 662, 667 (Minn. Ct. App. 1992) (church liable for motorcyclist's injuries suffered in striking unmarked barricade because of inadequate signage on private road); Ridge v. Grimes, 281 S.E.2d 448, 450 (N.C. Ct. App. 1981) (jury could find that developer, by undertaking to construct road in subdivision knowing public would use it as public road, incurred duty to plaintiff to maintain road in safe condition "and to give adequate warning of any contrary condition"); Wolfe v. Union Pacific
Smith v. State, 93 Idaho 795, 473 P.2d 937, 946 (1970). See also Johnson v. State, 636 P.2d 47 (Alaska 1981); State v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976); and State Dept. of Highways and Public Transp. v. Bacon, 754 S.W.2d 279 (Tex.App. 1988). Cf. State v. Juengel, 15 Ariz. App. 495, 489 P.2d 869 (1971) and Phipps v. City of McGill, 97 Nev. 233, 627 P.2d 401 (1981), which appear to require actual notice.
It is well established that prejudgment interest "as damages" may not cause the statutory cap to be exceeded. Weller v. State, 682 S.W.2d 234, 234 (Tex. 1984) (liability limitation precludes award of prejudgment interest as damages when actual damages awarded exceed the statutory cap); State Dep't of Highways and Pub. Transpr. v. Bacon, 754 S.W.2d 279, 282 (Tex.App. — Texarkana 1988, writ denied) (statutory cap precludes any recovery of prejudgment interest when the total damages equal or exceed the maximum recovery). The Rammings argue that the 1987 enactment of TEX.REV.CIV.STAT.ANN. art. 5069-1.
We hold the trial court did not err in refusing to award pre-judgment interest in addition to Ms. Petty's recovery of the maximum amount allowed by the Act. See Weller, 682 S.W.2d at 234; Dept. of Hwys. Public Transp. v. Bacon, 754 S.W.2d 279, 282 (Tex.App. 1988, writ denied). In consequence, we overrule Ms. Petty's third cross-point of error.
The limitation on money damages also applies to prejudgment interest. See Weller v. State, 682 S.W.2d 234, 234 (Tex. 1984) (since jury found damages in excess of $100,000, the Texas Tort Claims Act precludes the award of prejudgment interest); State Dep't of Highways Pub. Transp. v. Bacon, 754 S.W.2d 279, 282 (Tex.App. — Texarkana 1988, writ denied) (statutory cap on damages in Texas Tort Claims Act precludes recovery of prejudgment interest when total damages equal or exceed the maximum recovery). In addition, the Texas Tort Claims Act does not authorize recovery of exemplary damages from a political subdivision.
The term "dangerous condition" used in Questions 4A-4D means a condition that creates an unreasonable risk of harm to the user of the roadway. This definition was taken exactly from the Texarkana Court of Appeals decision of State Dept. of Highways and Public Transportation v. Bacon, 754 S.W.2d 279 (Tex.App. — Texarkana 1988, writ denied). In Bacon, the State challenged this definition of dangerous condition.