Beynon, 283 S.W.3d at 331-32; see also Hayes, 327 S.W.3d at 116. As noted in Sipes v Texas Department of Transportation, 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect.
In general, tall vegetation that obstructs the view of a driver is considered to be a premises defect, and not a special defect. Sipes v. Tex. Dep't of Transp., 949 S.W.2d 516, 521 (Tex.App.-Texarkana 1997, writ. denied). Texas courts reviewing "grass on the side of the road" claims have consistently held that vegetation obscuring hidden dangers does not constitute a special defect.
Further, evidence that American Industries knew of the existence of the staircase in question is not evidence that American Industries knew that the failure to have balusters was a dangerous condition. Sipes v. Texas Dept. of Transp., 949 S.W.2d 516, 521 (Tex.App.-Texarkana 1997, writ denied); Hastings v. De Leon, 532 S.W.2d 147, 149 (Tex.App.-San Antonio 1975, writ ref'd n.r.e.). American Industries' installation of balusters after it became aware of the occurrence made the basis of this suit is no evidence that American Industries had actual knowledge that the staircase was a dangerous condition at the time of this occurrence. There is evidence that Baker works in the Building, that he has used these stairs many times, and that he keeps a copy of the Houston Building Code and the Uniform Building Code in his office.
Motorists can and should anticipate flooding in low lying areas when the weather is conducive to flooding. See id.; see also City of Fort Worth v. Gay, 977 S.W.2d 814, 819 (Tex.App.-Fort Worth 1998, no pet.) (pool of water in storm sewer not unexpected or unusual after rainfall); Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex.App.-Texarkana 1997, writ denied) (tall grass and weeds growing along Texas highway in July not unusual or unexpected when summer weather is conducive to the growth of such vegetation). The open and obvious nature of the flood waters also serve to defeat the unexpected and unusual requirement for a special defect.
The trees and brush were open, obvious, and would be entirely predictable to an ordinary motorist traveling on a rural county road in Texas during the month of July. See Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex.App.-Texarkana 1997, writ denied) (tall grass and weeds growing along Texas highway in July not unusual or unexpected when summer weather is conducive to the growth of such vegetation); see also Kitchen, 867 S.W.2d at 786 (road conditions that motorists can and should anticipate when weather is conducive to such a condition is "neither unexpected nor unusual, but rather, entirely predictable"). What Kevin tragically could not have predicted or expected was that an on-coming vehicle would be traveling on his side of the road when he rounded the curve.
A municipality can only be liable for creating a nuisance in the non-negligent performance of a governmental function. City of Tyler v. Likes, 41 Tex. Sup.Ct. J. 174, 184 (Dec. 11, 1997); Sipes v. Texas Dept. of Transp., 949 S.W.2d 516, 522 (Tex.App. — Texarkana 1997, writ denied); Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826, 829 (Tex.App.-Waco 1993, writ denied). "Non-negligence in this context means beyond negligence, as in gross negligence or an intentional act."
ts, 946 S.W.2d 841, 843 (Tex. 1997) (per curiam) (holding that cracked and crumbling sidewalk step was not special defect where "essential structure" of steps was not impaired); Texas Dep't of Transp. v. Womac, No. 13-11-00460-CV, 2012 Tex. App. LEXIS 8581, at *8-9 (Tex. App.—Corpus Christi Oct. 11, 2012, no pet.) (mem. op.) (concluding that relatively small sunken area in sidewalk that did not impair bicyclist's ability to travel in bike lane did not constitute special defect); City of Galveston v. Albright, No. 14-04-00072-CV, 2004 Tex. App. LEXIS 9693, at *12 (Tex. App.—Houston [14th Dist.] Nov. 2, 2004, no pet.) (mem. op.) (holding that "open and obvious nature of the drainage block serve[d] to defeat the 'unexpected and unusual requirement' for a special defect"); Wildermuth, 1 S.W.3d at 708 (holding that small trees and brush growing along roadside that were not unexpected or unusual and were open, obvious, and predictable could not constitute special defect as matter of law); Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.—Texarkana 1997, writ denied) (concluding that open and obvious nature of vegetation, of which plaintiff testified she had actual knowledge, demonstrated plaintiff's failure to fulfill unexpected and unusual requirement for special defect). Therefore, we conclude that the overgrown vegetation in or above the bike lane did not constitute a special defect as a matter of law and that section 101.022(b) of the TTCA does not waive the City's immunity from suit.
ets" and did not pose a threat to "ordinary users" in the manner that an excavation or obstruction blocking the road would, it is not a special defect. See, e.g., Hayes, 327 S.W.3d at 116 (identifying characteristics of special defects); Beynon, 283 S.W.3d at 331-32 (noting that ordinary users of roadway in question would not be expected to leave paved roadway and travel into adjoining grass and that condition cannot be classified as special defect unless it is similar to excavation or obstruction); Anderson v. Anderson Cnty., 6 S.W.3d 612, 615-16 (Tex. App.—Tyler 1999, pet. denied) (holding that vegetation overgrowth on county right-of-way covering stop sign was not special defect); Wildermuth v. Parker Cnty., 1 S.W.3d 705, 708 (Tex. App.—Fort Worth 1999, no pet.) (concluding that oak trees and brush in right of way that did not extend into road or obstruct roadway travel and were open, obvious, and predictable to ordinary motorist did not constitute special defect as matter of law); Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.—Texarkana 1997, writ denied) (noting that grass and weeds growing along highway in summertime did not pose unusual and unexpected danger to ordinary motorists); Johnson v. Texas Dep't of Transp., 905 S.W.2d 394, 399 (Tex. App.—Austin 1995, no writ) (holding that obstructed view of stop sign due to vegetation and trees was not obstruction on highway and was not special defect); see also Toney v. Grayson Cnty., No. 05-95-00347-CV, 1996 Tex. App. LEXIS 4036, at *11 (Tex. App.—Dallas Aug. 27, 1996, writ denied) (op., not designated for publication) (rejecting special-defect allegation based on county's failure to remove trees in shoulder adjacent to roadway because presence of trees did not pose a threat to "ordinary users" of roadway and was neither unexpected nor unusual). Here, Davis's pleadings affirmatively negate the existence of jurisdiction based on a special defect.
Id. As noted in Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect.
The court held that "where a city knowingly maintains an intersection right-of-way in a manner which dangerously obstructs the vision of motorists, . . . they are under a duty to warn of the danger or . . . make safe the defective condition." Id. at 548; but see Sipes v. Tex. Dep't of Transp., 949 S.W.2d 516, 521 (Tex.App.-Texarkana 1997, pet. denied) (no evidence of Department's knowledge of obscured view, thus no liability for vegetation blocking view of motorist). The implicit jury finding here that the Department knew of the overgrown vegetation blocking motorists' views is not contested on appeal.