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Slain Motorist’s Family Loses Tall Grass Award

BEAUMONT, Texas (CN) - Texas is not responsible for the death of a motorist whose vision was obstructed by tall grass in a highway median, a state appeals court ruled.

The ruling invalidates a $1.1 million award to the family of Hazel Zapf who was killed while trying to cross the southbound lane of Highway 347 in August of 2008.

Though jurors had found that both the state and Zapf were negligent, they assigned 90 percent of the blame to the Department of Transportation for failing to maintain the grassy median that obstructed Zapf's view.

A three-judge panel with the 9th Court of Appeals in Beaumont reversed on Jan. 17.

"We conclude that the evidence admitted in the Zapfs' trial is legally insufficient to show that the Department had actual knowledge that tall grass had grown to a height to obstruct the vision of drivers using the median at issue," Justice Hollis Horton wrote for the panel.

The Zapfs had failed to show Texas knew how the grass affected motorists.

In City of Dallas v. Thompson, the Texas Supreme Court distinguished between constructive knowledge and actual knowledge in such cases, according to the ruling.

That 2006 decision states that "the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time."

Evidence produced by the Zapfs shows that the median required mowing outside of a regular mowing schedule.

But Horton said this evidence shows only the state "should have" known that tall grass could be present, not that Texas knew of its presence.

"In the case before us, no evidence was admitted during the trial showing that a department employee, prior to the accident, had seen the grass growing to a hazardous height after it had last been cut," the 12-page opinion states. "Additionally, no department employee acknowledged knowing, during the three-week period before Hazel's collision, that the grass had grown to a sufficient height that it presented a hazard to drivers using the turning lane."

During the three weeks before the collision and the last mowing of the median, the state's mowing inspector, Debra Hurst, never mentioned the grass growing to where it would obscure motorist vision, according to the ruling.

"Instead, Hurst's testimony reflects that she observed tall grass in the median of Highway 347 on August 21, 2008, the day after Hazel's collision; at that time, she asked the contractor to perform an emergency spot mow," Horton wrote. "While Hurst acknowledged that the same area had required four emergency spot mows between May and September of the previous year, she was never asked whether she realized before Hazel's August 20, 2008, collision that the grass had grown to an unacceptable height after it was last cut."

The panel also declined to credit the testimony of David Mann, a nearby automotive and transmission shop owner, as showing that Texas had actual knowledge of the tall grass. Mann testified that he contacted the state more than 20 times since 2004 about the tall grass in the median.

"In late July 2008, Mann called the department complaining about tall grass in the median after three wrecks occurred in one day," the opinion states. "Nevertheless, the parties both acknowledge that the median was last cut on July 28 and 29, 2008, as part of the regularly scheduled maintenance performed in that area. Importantly, Mann did not testify that he called to report problems with the height of the grass in the median at issue after it was mowed in late July."

The remainder of Mann's testimony does not show the state knew the grass was too high before Zapf's collision, according to the ruling.

"Although Mann suggested that the tall grass allowed police officers to hide in the median '[w]here they can issue more speeding citations[,]' nothing established that he had knowledge of the department's policies," Horton wrote. "As a result, his opinion that allowing the grass to grow to help another state agency's function is nothing more than unsupported opinion and provides no support for the verdict."

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