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CR 108 is a paved county road of adequate width for an 18 wheel truck and passenger vehicle to pass...almost. Shoulders are non-existent or steep. Part way down road is a paved over RR crossing.

Company wants to re-open crossing and put a rail loading yard next to road. If crossing is NOT reopened, yard will not be built. Best guess is that this will increase truck traffic considerably. County knows that there is NOT room for two trucks to meet on road.

If county acquiesces in reopening of RR crossing and does not improve shoulders or widen road - is there an additional liability for county?

Lisa L. Peterson
Nolan County Attorney
Posts: 736 | Location: Sweetwater TX | Registered: January 30, 2001Reply With QuoteReport This Post
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There may be liability since the county knows of the condition. Take a look at some of the cases citing Civil Practice & Remedies Code § 101.021.
Posts: 90 | Location: Lockhart TX | Registered: January 05, 2012Reply With QuoteReport This Post
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Lisa, you are the oracle of county roads, so you will have to fill in some necessary blanks. The question is whether the county is required to widen the road (say, under the Transportation Code). If not, CPRC sec. 101.056 provides that the Tort Claims Act (and its all-important waiver of immunity) does not apply to (1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. If widening is undertaken, mistakes made in doing so could then conceivably trigger application of the Tort Claims Act.

On the other hand, I suppose a creative plaintiff's lawyer could claim that the width of the road is itself a defective condition of which the county has knowledge. That would be the case if two trucks have a demolition derby on that particular stretch of blacktop, regardless of the proposed construction. Viewed that way, the potential liability is pre-existing. Building the loading yard would simply cumulate the risk. So if you take the cautious approach, the time to act may already be upon you.
Posts: 1233 | Location: Amarillo, Texas, USA | Registered: March 15, 2001Reply With QuoteReport This Post
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