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Zuleima Olivares. Individually and As the Representative of the Estate v. Brown & Gay Engineering

April 25, 2013


On Appeal from the 334th District Court Harris County, Texas Trial Court Cause No. 2008-19417

The opinion of the court was delivered by: Tracy Christopher Justice

Reversed and Remanded and Opinion filed April 25, 2013.

In the Fourteenth Court of Appeals


Appellants Zuleima Olivares, individually and as the representative of the estate of Pedro Olivares, Jr., and Pedro Olivares appeal the trial court's granting of appellees Brown & Gay Engineering, Inc.'s (Brown & Gay) and Mike Stone Enterprises, Inc.'s (MSE) pleas to the jurisdiction. In their pleas, appellees asserted that they are immune from suit based on their status as governmental employees, as defined in the Texas Tort Claims Act (TTCA), sued in their official capacity. Appellants argue that the trial court erred in granting appellees' pleas to the jurisdiction because appellees have not shown that they meet the statutory definition of governmental employees. We reverse and remand for proceedings consistent with this opinion.


On January 1, 2007, Pedro Olivares, Jr. and his wife were traveling westbound on the Westpark Tollway near Dairy Ashford Road in Harris County when they were struck by a vehicle driven by Michael Ladson. According to appellants, Ladson was traveling on the Tollway in the wrong direction after entering the westbound lanes near Gaston Road in Fort Bend County, approximately eight and one-half miles from the accident scene. Pedro Olivares, Jr. sustained severe bodily injuries resulting in death.

Appellants asserted negligence and premises defect claims against multiple defendants. These claims involved allegations that the various defendants failed to design and install proper signs, warning flashers, and traffic-control devices near the area where Ladson entered the Tollway. This court previously addressed the trial court's denial of two other co-defendants' (Fort Bend County Toll Road Authority (FBCTRA) and Texas Department of Transportation) pleas to the jurisdiction. Fort Bend Cty. Toll Rd. Auth. v. Olivares, 316 S.W.3d 114 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (reversing and remanding in part, and reversing and rendering in part)*fn1 ; Tex. Dep't of Transp. v. Olivares, 316 S.W.3d 89 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (affirming in part, reversing and remanding in part, and reversing and rendering in part). After remand, those defendants were non-suited.*fn2 The only remaining defendants in the case are Brown & Gay and MSE.

In their third amended petition, appellants allege that Brown & Gay, a Texas engineering company that performed the design work on the Tollway pursuant to agreements with, among others, FBCTRA, failed to properly design signs and traffic layouts in accordance with the Texas Manual on Uniform Traffic Control Devices and breached the engineering standard of care. Appellants also allege that MSE, a private Texas company (also d/b/a Professional Project Management Services) that contracted with FBCTRA to operate the Tollway, negligently delayed and denied safety recommendations and requests from professional engineers to install lights that would have improved safety.

Both Brown & Gay and MSE filed pleas to the jurisdiction based on governmental immunity, arguing that they constitute governmental employees, as defined in the TTCA, sued in their official capacity. The trial court granted Brown & Gay's and MSE's jurisdictional pleas. Appellants now appeal the trial court's granting of appellees' pleas.


Generally, in Texas, a governmental unit is immune from tort liability and suit unless the Legislature has waived immunity. City of Galveston v. State, 217 S.W.3d 466, 468 (Tex. 2007); MBP Corp. v. Bd. of Trustees of Galveston Wharves, 297 S.W.3d 483, 487 (Tex. App.-Houston [14th Dist.] 2009, no pet.).*fn3 FBCTRA is a local government corporation and, therefore, a governmental unit for purposes of the TTCA. Olivares 1, 316 S.W.3d at 127--28.*fn4

When a governmental employee files a plea to the jurisdiction, he invokes the immunity from suit held by the government itself. See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007). The TTCA defines an "employee" for purposes of governmental immunity:

[A] person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2) (West 2012).

Under the TTCA, a person is not an employee of a governmental unit if the person is an independent contractor or "performs tasks the details of which the governmental unit does not have the legal right to control." See Murk v. Scheele, 120 S.W.3d 865, 866 (Tex. 2003) (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(2)). The statutory definition requires both "control and paid employment to invoke the [TTCA]'s waiver of immunity." See Adkins v. Furey, 2 S.W.3d 346, 348 (Tex. App.-San Antonio 1999, no pet.) (emphasis in original).

In determining whether a person is an employee or an independent contractor, the focus is on who has the right to control the details of the work. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002) (citing Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990)); Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex. App.-Houston [14th Dist.] 2000, no pet.). An independent contractor is one who, in pursuit of an independent business, undertakes specific work for another using his own means and methods without submitting to the control of the other person as to the details of the work. Indus. Indem. Exch. v. Southard, 160 S.W.2d 905, 907 (Tex. 1942). In contrast, an "employer controls not merely the end sought to be accomplished, but also the means and details of its accomplishment." Limestone, 71 S.W.3d at 312 (citing Thompson, 789 S.W.2d at 278).

A party can prove right to control in two ways; first, by evidence of a contractual agreement that explicitly assigns a right to control; and second, in the absence of such contractual agreement, by evidence of actual control over the manner in which the work was performed. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). A written contract expressly providing for an independent-contract relationship is determinative of the parties' relationship in the absence of extrinsic evidence indicating the contract was subterfuge, the hiring party exercised actual control in a manner inconsistent with the contract, or if the written contract has been modified by a subsequent agreement. Weidner, 14 S.W.3d at 373.

Courts may consider several "right to control" factors in determining whether someone is an independent contractor, including: (1) the independent nature of the person's business; (2) the person's obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control progress of the work, except as to final results; (4) the time for which the person is employed; and (5) the method of payment, whether by time or by the job. Texas A & M Univ. v. Bishop, 156 S.W.3d 580, 584--85 (Tex. 2005) (citing Southard, 160 S.W.2d at 906) (concluding as matter of law that director of university play and wife were independent contractors, not employees, per TTCA). "[T]he type of control normally exercised by an employer include[s] when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result." Thompson, 789 S.W.2d at 278--79. Exercise of the right to control is ordinarily a question of fact, but ...

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