In Harris County v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978), the supreme court observed that these examples "provide an understanding of the kinds of dangerous conditions against which the legislature intended to protect the public." Id.
"One characteristic of the class that should be considered," it reasoned, "is the size of the dangerous condition." Id.
The condition in Eaton was a large oval-shaped hole in a two-lane asphalt road that varied between six and ten inches deep and four and nine feet wide, covering over ninety percent of the highway's width. Such a defect, the court concluded, "had reached the proportions of a ditch across the highway" and constituted a special defect. Id.
The Eaton court rejected the assertion that a special defect could be created only by the governmental unit, holding that one could arise from weather or other natural forces:
"It is our view that an excavation or obstruction need not have been created by the governmental unit itself. Nothing in the statute expresses that idea. For example, an avalanche which clogs a mountain road would be an obstruction although the governmental unit did not create it. The same may be said for an excavation. Whether created by the governmental unit, by natural forces, or by third persons, the dangerous condition on the roadway is the same." Id. at 179-80.
Whether the governmental unit created the condition, the court reasoned, would instead go to the unit's notice of the special defect, as "the government will have actual knowledge of its existence if it created the condition." Id. at 180.