Texas court rejects government liability in motorist floodwater drowning

October 12, 2021

Tyson Fisher

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Is a county liable for a motorist’s wrongful death after drowning in floodwaters? That was essentially the question answered by the Seventh District of Texas Court of Appeals panel.

Recently, the Seventh District of Texas appellate panel reversed a trial court’s decision denying a motion by Caldwell County, Texas, to dismiss a case because of sovereign immunity. Vicki Genfan, on behalf of the estate of Mark and Alisin Genfan, filed a wrongful death lawsuit against the county claiming negligence and premises liability after Mark and Alisin’s car was washed away in floodwaters. The Genfans drowned.

By reversing the trial court’s order, the court of appeals ruled that a Texas county can invoke sovereign immunity if a motorist drowns in floodwaters on a county road. As a result, Vicki Genfan’s lawsuit was dismissed.

Noncompliant signage

The Genfans drowned in Caldwell County in December 2019. During that time, the county was experiencing significant rainfall, according to court documents.

In such weather events, the county sends out road crews to secure high-water crossings. A-frame barricades that read “danger – high water” are set up to warn motorists and residents. If the water is impassable, signs are placed in the opposite direction in the middle of the road reading “road closed – high water.”

According to Caldwell County’s brief, county road crews took action to close the road in question at 9:41 a.m. of the day of the incident due to floodwaters. Mark and Alisin Genfan attempted to pass the crossing later that night. A neighbor of the Genfan’s testified that the warning sign was placed on the side of the road and not in the middle of the road. Both the neighbor and one of the plaintiffs testified that the warning signs have historically been on the side of the road, including moments when the road was impassable.

Regardless of placement, Vicki Genfan’s attorney argued in her appellate brief that the warning signs were insufficient.

Rather than follow standards outlined in the Texas Manual on Uniform Traffic Control Devices, Caldwell County used what Vicki Genfan called “a simple ‘sawhorse’ type sign with faded orange and black paint.”

Although the traffic control manual identifies the makeshift signs as temporary traffic control devices, those still have certain requirements that plaintiffs claim were not followed.

One such sign requirement is using reflectorized material for night visibility. Additionally, a “road closed” sign must be 5 feet by 4 feet with three horizontal boards. Neither of those requirements were met.

There is conflicting information when it comes to the placement of the sign when the road needed to be closed. Residents say they rarely saw it in the middle of the road. Conversely, Caldwell County employees said the sign was always in the middle of the road on both sides of the creek. Both employees responsible for signs in that area testified that motorists constantly drive around the sign when placed in the middle of the road.

Were the floodwaters an ’emergency?’

According to Section 101.055(2) of the Texas Tort Claims Act, a government within the state is exempt from liability if an employee was “responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action or, in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.”

Plaintiffs argued that because the road in question is prone to floodwaters, the flooding event that killed the Genfans cannot be considered an emergency. The trial court agreed and denied Caldwell County’s motion to dismiss. However, a state court of appeals felt differently.

“We reject the Genfans’ proposition that because the county had time to prepare for the situation, it was not reacting to an emergency,” the appellate opinion stated. “Time to react does not necessarily make a situation any less of an emergency.”

The court of appeals compared the situation to a hurricane. Just because a hurricane can be predicted to hit a certain area days in advance does not mean it is no longer considered an emergency.

Accordingly, the emergency exemption applies to Caldwell County when it comes to flood waters on certain roads.

Regarding the noncompliant signs, the court of appeals pointed to previous cases that found the state’s traffic control device manual irrelevant. Specifically, despite the manual being a law or ordinance, the sections relevant to this case do not apply to emergency situations.

“Should the government personnel undertaking that response view it practical to utilize signage warning the public of the dangerous circumstance, it would be counterintuitive to require them to hesitate by first determining if their signs comport with specifications found in the manual,” the court of appeal stated. “We hesitate to require those responding to an emergency situation to first consult the manual before undertaking measures to ameliorate the dangers posed to others.”

Based on that interpretation of the law, the court of appeals granted Caldwell County’s motion to dismiss. LL

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Tyson Fisher joined Land Line Magazine in March 2014. An award-winning journalist and tireless researcher, his news reports, features and blogs bring depth to our editorial content, backed with solid detail. Tyson is a lifelong Kansas Citian.