Texas county asks state Supreme Court to find oil companies liable for road damage

By Tyson Fisher, Land Line staff writer | 1/11/2019

Dimmit County in Texas has petitioned to the state’s Supreme Court to hear a case accusing approximately two dozen oil and gas companies of tearing up the roads with their trucks. The county and a trial court found the companies liable for damages, but an appellate court ruled the trucks are not responsible for the upkeep of a public road.

In December, Dimmit County filed a petition with the Texas Supreme Court for its lawsuit that named 29 oilfield businesses in its original lawsuit. The county claims that trucks for the companies negligently and intentionally drove on a particular road in rainy conditions and caused damage to the road, thereby making them liable for damages. An appellate court disagreed and let the companies off the hook.

Dimmit County v. multiple oil companies
In its lawsuit, Dimmit County alleges the oil and gas companies severely damaged a 7-mile stretch of road known as Diamond H. Ranch Road starting in 2011. The county provided a list of 19 severe rain events during which the defendants “negligently and intentionally” drove heavy equipment over the road.

According to the lawsuit, Dimmit County alleges that in South Texas it is well known that severe rains soften roads that are not paved with asphalt, making them more susceptible and vulnerable to surface damage.

“The general public and reasonably prudent operators avoid driving and using non-asphalt-paved roads during and a reasonable time after rain events,” the lawsuit states. “Defendants’ driving was certain to damage the road, with risk of damage foreseeable to a reasonable person.”

In addition to failing to properly consider and evaluate road conditions, the lawsuit alleges that the companies continued to drive on the road despite having observed the damage being done. Dimmit County claims that thousands of vehicles and pieces of equipment were dragged and towed after getting stuck in mud, exacerbating the damage. Consequently, the county seeks damages to pay for repairs.

However, 20 of the defendants filed a motion to dismiss under the grounds that the county’s claims “failed to identify specific instances of damage-causing negligence, failed to attribute any damage or damage-causing negligence to a specific defendant and were conclusory.” Defendants also claimed they could not be held liable for “normal” use of the road or for ordinary wear and tear. Essentially, Dimmit County provided no supporting evidence to prove that the companies’ driving was “abnormal.”

In May 2018, a trial court denied the oil companies’ motion to dismiss. Subsequently, the companies filed an appeal to that denial. In October, an appellate court agreed with the oil companies.

‘Moral duty’ versus ‘legal duty’
The appellate panel’s opinion acknowledged that the companies’ use of the road resulted in severe damage. Whether or not they were liable for the damage came down to a question of “moral duty” versus “legal duty.”

“The only ‘duty’ the county alleges defendants owed was ‘to not damage the road,’” the court opined. “The county does not allege defendants had a duty to repair or maintain the road or warn of a dangerous condition on the road.”

Explaining the ruling, the appellate court referred to a previous case that considered whether someone who drives over a bridge on a public road and discovers that the defective bridge has broken down under the weight of their vehicle, without negligence on their part, is under any duty to warn other motorists to prevent injuries. In that case, the court determined the driver had no duty because the bridge was already defective and couldn’t handle the weight. The driver, on the other hand, was operating the vehicle in a usual and legitimate way.

“It would be carrying the matter too far to say that one must give notice of every known defect in a road naturally resulting from his normal and legitimate use thereof,” the court said. “To so hold would make the use of the highways too hazardous from the standpoint of public liability.”

Dimmit County admitted in its petition that the road is a non-asphalt-paved road “not designed to accommodate oil field traffic, heavy equipment, heavy vehicles, and other abnormally-used objects during and a reasonable time after rain events.” However, there was no indication that the road was intended only for a specific group, like passenger vehicles.

There also was no allegation the county posted any notice that heavy vehicles could not use the road during and a reasonable time after rain events. The court determined that defendants were merely driving work-related vehicles on a road designed for vehicular traffic. Furthermore, the fact that trucks drove on the road during rain events “simply shows the degree or quantity of use — not an unusual use in a legal sense, and not a wrongful or an unlawful use.”

“Although [defendants] may have had a moral duty to not damage the road, we cannot say they had a legal duty,” the court ruled. “Therefore, we conclude the county’s pleading failed to show a basis in law that (defendants) had a legal duty to not damage the road and the trial court erred in denying the Rule 91a motion to dismiss.”

Petition to Supreme Court
In response to the appellate court’s reversal, Dimmit County is asking the Texas Supreme Court to overrule, evoking Texas Transportation Code 251.160: “A person who operates or moves a vehicle or other object on a public road or bridge and the owner of the vehicle or other object are jointly and severally liable for damage sustained by the road or bridge as a result of the negligent operation or moving of the vehicle or other object.”

Dimmit County argues that the appellate court completely ignored the statute by stating there was no “legal duty” on the part of the oil companies. The county is claiming this is exactly what section 251.160 addresses, therefore establishing a legal duty in addition to any moral duty.

If the appellate court’s ruling stands, the county argues, it will lead to similar cases in all Texas counties to be dismissed without trial.

 

 

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