# Smith v. Tex. Dep't of Transp. & Vulcan Materials Co. Supreme Court of Texas, No. 25-0291 **Smith v. Tex. Dep't of Transp. & Vulcan Materials Co., No. 25-0291, is before the Supreme Court of Texas. Key issue: Whether the Texas Tort Claims Act's discretionary-function exceptions (sections 101.056 and 101.060) bar a premises-defect claim against TxDOT over loose limestone rock asphalt on a repaved highway, including whether loose rock asphalt is a "special defect" and whether those exceptions apply when a statutory duty dictates TxDOT's actions.** Practice areas: governmental immunity, products liability, personal injury ## Key issues - Whether the Texas Tort Claims Act's discretionary-function exceptions (sections 101.056 and 101.060) bar a premises-defect claim against TxDOT over loose limestone rock asphalt on a repaved highway, including whether loose rock asphalt is a "special defect" and whether those exceptions apply when a statutory duty dictates TxDOT's actions. - Whether the manufacturer of limestone rock asphalt had a duty to warn TxDOT's maintenance yard workers that the material has a limited shelf life, whether that duty turns on the workers' subjective knowledge or the objective needs of all foreseeable users, and, alternatively, whether the judgment can be affirmed on no-evidence grounds. ## Factual History TxDOT began resurfacing FM 134, a rural single-lane highway in Harrison County, in July 2020 using an overlay of limestone rock asphalt (LRA), a cold asphalt that Vulcan Materials Company mined and supplied to TxDOT's Marshall yard (Brief on the Merits (Respondent) (TxDOT), PDF pp. 8, 10). On November 3, 2020, a TxDOT crew laid about 700 feet of LRA on the southbound lane. Roughly 90 minutes after the crew left, Jennipher Smith's car slid off the road on that stretch; when she got out to seek help she was struck and killed by a second car that also slid on the loose material (Brief on the Merits (Respondent) (Vulcan), PDF p. 9; Brief on the Merits (Petitioner), PDF p. 9). Petitioner contends TxDOT left the roadway strewn with loose rock without adequate warning, and that the LRA was dangerously defective because it had passed a six-month maximum shelf life and would not adhere. TxDOT says it posted "LOOSE GRAVEL" signs at roughly two-mile intervals under its Traffic Control Plan 7-1 and that the LRA compacted as usual. Vulcan says the workers who chose which stockpile to use knew LRA can degrade with age and checked each pile, and notes the jury found no manufacturing defect (Brief on the Merits (Respondent) (TxDOT), PDF pp. 10-12; Brief on the Merits (Respondent) (Vulcan), PDF pp. 5-8). ## Procedural History Kristina Smith sued TxDOT and Vulcan individually, as representative of Jennipher Smith's estate, and as next friend of Jennipher's children N.J. and B.J. After a week-long trial in the 71st District Court of Harrison County, the jury found TxDOT liable on a premises-defect claim (75%) and Vulcan liable on a marketing-defect claim (25%). The trial court rendered judgment of $500,000 against TxDOT, the Tort Claims Act cap, and $2,058,208.76 plus interest and costs against Vulcan (Brief on the Merits (Petitioner), PDF p. 9; Brief on the Merits (Respondent) (TxDOT), PDF p. 8). The Sixth Court of Appeals (Rambin, J., joined by Stevens, C.J., and van Cleef, J.) reversed and rendered judgment for both defendants. Texas Department of Transportation v. Smith, No. 06-23-00076-CV, 2024 WL 4635424 (Tex. App.—Texarkana Oct. 31, 2024, pet. filed). Smith petitioned for review on June 23, 2025, TxDOT and Vulcan responded on September 29, 2025, and the Court requested briefs on the merits, which were filed in January, April, and May 2026 (Docket). ## Issues Presented Petitioner asks the Court to review and reverse two holdings: (1) that her claims against TxDOT are barred by the discretionary-function exceptions of the Tort Claims Act, and (2) that Vulcan had no duty to warn TxDOT workers about the LRA's limited shelf life (Brief on the Merits (Petitioner), PDF pp. 4-5). TxDOT presents whether the trial court lacked jurisdiction because the discretionary-function exceptions preclude a waiver of immunity and, alternatively, whether the judgment should be affirmed because there is no evidence of an inadequate warning, no evidence of actual knowledge of any danger, and no evidence that Ms. Smith lacked actual knowledge (Brief on the Merits (Respondent) (TxDOT), PDF p. 9). Vulcan presents whether the court of appeals correctly held it owed no duty to warn workers who knew LRA degrades over time, whether Smith failed to prove what caused the slippery condition or that any failure to warn did, and whether her issue rests on assumptions that conflict with the record (Brief on the Merits (Respondent) (Vulcan), PDF p. 6). ## Legal Arguments **Petitioner (Kristina Smith, et al.):** Section 101.056 immunizes only discretionary functions relating to highway design and governance, not non-discretionary maintenance duties such as properly installing the LRA and cleaning up loose material, and it does not apply when a statutory premises-defect duty under section 101.022 leaves TxDOT no discretion. Section 101.060 confers immunity for a failure to place warning signs and so does not reach claims unrelated to road signs. The loose LRA was also a special defect, and TxDOT's alternative grounds fail because it knew of the defect, did not adequately warn, and Smith lacked adequate knowledge. As to Vulcan, the duty to warn is an objective inquiry that looks to the collective needs of all foreseeable users, not the subjective knowledge of a few Marshall yard workers, and no worker had adequate information about the six-month shelf life; Smith also says expert and fact evidence established that Vulcan's failure to warn and the expired LRA's loss of adhesion were producing causes (Brief on the Merits (Petitioner), PDF pp. 4-5; Reply Brief (Petitioner), PDF pp. 2-11). **Respondent (Texas Department of Transportation):** The trial court lacked jurisdiction because the claim rests on TxDOT's discretionary decisions about the adequacy and placement of warning signs, which the Tort Claims Act does not waive. Petitioner's reading of section 101.056 would render it meaningless, loose gravel that comes from LRA is not distinguishable from other loose gravel, and loose gravel is not a special defect, an argument TxDOT also says was not preserved. Alternatively, there is no evidence TxDOT failed to adequately warn, had actual knowledge of the loose gravel or any danger, or that Ms. Smith lacked actual knowledge (Brief on the Merits (Respondent) (TxDOT), PDF pp. 3-4, 9). **Respondent (Vulcan Materials Company):** Texas law imposes no duty to warn a user who already knows of the danger, and the yard workers who decided which LRA pile to use knew LRA can go bad and had to be checked. The Court should also affirm because expert testimony was required to prove a failure to warn caused the accident and none was offered, no witness said the LRA's age or an inadequate warning made it "marble-like," and a warning from Vulcan would not have changed how the yard used the material. Vulcan adds that petitioner's issues are fact-bound and that the jury found no manufacturing defect (Brief on the Merits (Respondent) (Vulcan), PDF pp. 2, 5-8). ## Stated Reasons the Court Should Take the Case Smith argues the court of appeals' decision shows an intolerable level of uncertainty about discretionary-function immunity that courts face every day, that TxDOT's position that warning signs always trigger immunity is incompatible with the limits the Legislature placed in the Tort Claims Act, and that the Vulcan ruling conflicts with this Court's precedent that duty is an objective inquiry (Reply Brief (Petitioner), PDF pp. 7-8). The respondents answer that the issues are fact-bound, apply settled law such as Tarrant Regional Water District v. Johnson, and merit no review (Brief on the Merits (Respondent) (Vulcan), PDF pp. 5, 7-8). ## Practice Area Tags governmental-immunity, products-liability, personal-injury ## Procedural Posture/Vehicle Petition for review from the Sixth Court of Appeals, which reversed a jury verdict and rendered judgment for TxDOT (for want of a waiver of immunity) and for Vulcan (no duty to warn) in a wrongful-death premises-defect and marketing-defect suit. The Court has requested and received merits briefing but has not yet granted the petition. ## Amicus Involvement None --- Source: The SCOTX Report, https://scotxreport.com/cases/25-0291. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.