Most of what stands beside a road tells a driver something and trusts him with the rest: a curve ahead, a bridge that may ice, a crossing that may flood. A barricade does not trust him. It closes the road. When a car goes past one, or into water where one should have been, the case asks about the barricade twice: why the driver went around it, and why it was, or was not, there.
Barricade. In Texas the word has a statutory definition: an obstruction placed on or across a road by the Texas Department of Transportation, a city, county, or other political subdivision, or a contractor or subcontractor working on the road under their authority, “to prevent the passage of motor vehicles over the road, street, or highway during construction, repair, or dangerous conditions” (Transportation Code Section 472.022). Driving around one is an offense. So is disobeying the instructions of a warning sign, a term the same statute stretches to cover a flagger directing traffic. The exceptions are narrow: a driver following a police officer’s directions, and workers whose duties take them past. In a work zone with workers present the fine range doubles, and when the barricade or sign is there because water is over any part of the road, the offense is a Class B misdemeanor.
The driver’s side. Going around a barricade is the driver’s own conduct, and a jury weighs it. A Texas jury assigns a percentage of responsibility to each claimant, defendant, settling person, and responsible third party (Civil Practice and Remedies Code Section 33.003); the law reduces a claimant’s damages by his own percentage, and bars recovery when that percentage is greater than half (Sections 33.012 and 33.001), which is the arithmetic of Comparative Fault. A rule as specific as this one is at least the measure of what a careful driver does; whether breaking it is negligence as a matter of law is the question Negligence Per Se walks through. And each claimant is measured by his own conduct. The passengers in a car that went around a barricade often made no choice at all.
The government’s side. The Tort Claims Act draws three lines around signs, signals, and warning devices (Section 101.060). A government’s discretionary failure to place one in the first place is outside the Act. One that was there and is absent, damaged, or malfunctioning is inside it only if the government did not correct it within a reasonable time after notice. One that someone else removed or destroyed is inside it only if the government did not correct it within a reasonable time after actual notice. The Texas Supreme Court reads those lines as written: “an ‘absence’ requires a prior presence,” so a city that had decided to put up a temporary signal, and had not yet done it, kept its immunity (City of Grapevine v. Sipes). The barricade that was never put up and the barricade that went down last night are different cases, and what separates them is the record of who reported it, and when.
The water itself. A claim about the road, rather than the sign, turns on a different question: whether the danger was a special defect, the Act’s term for conditions like “excavations or obstructions” (Section 101.022). For a special defect the more protective invitee standard applies, and the plaintiff “need only prove that the governmental unit should have known” of the danger; Section 101.060’s limits do not apply to that duty to warn. For an ordinary premise defect, the plaintiff must prove the government “had actual knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same condition” (Texas Department of Transportation v. York). Weather usually falls on the ordinary side of that line. The Texas Supreme Court held that an icy bridge, under the circumstances of that case, was not a special defect, because it is “something motorists can and should anticipate when the weather is conducive to such a condition” (Kitchen). A Fort Worth appeals court held that a low-water crossing in flash-flood conditions is “neither unexpected nor unusual,” while recognizing that flood water can be a special defect when the flood itself is unexpected or unusual (Corbin v. City of Keller).
In a disaster. The Act also does not reach a claim arising from an employee’s action “reacting to an emergency situation” if the action complies with the laws and ordinances that apply to emergency action, or, where there are none, is not taken with conscious indifference or reckless disregard for the safety of others (Section 101.055). In a San Antonio flood whose rainfall exceeded what a 100-year flood would bring, with flood calls coming in from 90 percent of the city, a car drove into a flooded street where witnesses disagreed about how many barricades there were and where, and the current took it. The Texas Supreme Court held the exception applied. Reacting to an emergency “necessarily includes prioritizing some risks over others,” and “evidence that the City had time to do more at Rigsby Avenue is not evidence that the City was no longer reacting to an emergency situation” (City of San Antonio v. Hartman).
Who else answers. A barricade in a work zone is part of a contractor’s traffic-control plan. Texas shields a contractor building or repairing a road for the Texas Department of Transportation only when it was complying with the contract documents material to the condition that caused the harm (Section 97.002), which is what The Queue is about. And a driver who goes around a barricade and hits someone else answers like any other driver.
The clock and the proof. A claim against a government runs on its own clock: notice within six months, or by the deadline a city’s charter sets, unless the government already had actual notice (Section 101.101), which is why Limitations matters from the first week. The proof does not keep: photographs and video of where barricades stood, or did not, and when; who reported a downed or missing barricade, to whom, and at what time; and the weather warnings in effect that day.
A barricade is the one warning on the road that does not ask for the driver’s opinion. When a car goes into the water anyway, the law asks what the driver did, and whether the empty place where a barricade belonged was a decision the law protects or a report someone let sit.
The law: Tex. Transp. Code § 472.022; Tex. Civ. Prac. & Rem. Code § 33.001, § 33.003, § 33.012, § 97.002, § 101.022, § 101.055, § 101.060, and § 101.101; City of Grapevine v. Sipes, 195 S.W.3d 689 (Tex. 2006); City of San Antonio v. Hartman, 201 S.W.3d 667 (Tex. 2006); Texas Department of Transportation v. York, 284 S.W.3d 844 (Tex. 2009) (citing State Department of Highways & Public Transportation v. Payne, 838 S.W.2d 235 (Tex. 1992)); State Department of Highways & Public Transportation v. Kitchen, 867 S.W.2d 784 (Tex. 1993); Corbin v. City of Keller, 1 S.W.3d 743 (Tex. App. Fort Worth 1999, pet. denied). General information, not legal advice.
