On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B-100053-C
The opinion of the court was delivered by: Steve McKEITHEN Chief Justice
Karen Patricia Bendy sued Clark Construction of Texas, Ltd. and Clark Construction of Texas, Inc. ("Clark Construction") for negligence, premises liability, and premises defect arising out of injuries she allegedly sustained during a motor vehicle collision that occurred on a highway being repaved by Clark Construction. Peggy Rader and Delus Kuhnert, who were passengers in Bendy's vehicle at the time of the accident, intervened in Bendy's lawsuit. Clark Construction filed a traditional motion for summary judgment, which the trial court denied. On appeal, Clark Construction challenges the denial of its motion for summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)(1) (West Supp. 2012). We affirm the trial court's order denying Clark Construction's motion for summary judgment.
On May 19, 2009, Clark Construction was performing construction on farm to market road ("FM") 105 in Orange County, Texas. A collision between
Armando Carmona's vehicle and Bendy's vehicle occurred in the construction zone. Bendy and Carmona both received traffic citations. According to the police report, Carmona disregarded the construction warning sign and drove in a lane designated as non-travel, Bendy turned right when unsafe to do so, and the two vehicles collided.
In his deposition, Carmona testified that he was driving in the right lane of FM 105 where no construction work was underway. Carmona saw traffic cones blocking the left and middle lanes. Bendy, Rader, and Kuhnert testified that they had stopped at the construction zone to wait for a pilot car. Kuhnert saw flagmen and signs warning of a construction zone ahead, but did not recall seeing barricades or signs indicating which lanes were closed. Bendy, Kuhnert, and Rader testified that they never saw Carmona's vehicle before impact, and Bendy testified that the construction vehicles obscured her view. Bendy opined that Clark Construction should have installed barricades to block off the road so that Carmona would not have driven into the area.
Timothy Hayes, who witnessed the accident, testified that he saw no "road closed" signs. Hayes was two cars behind Bendy, and he testified that traffic cones were positioned to the right of his vehicle. Before the collision, Hayes saw Carmona's vehicle approaching. He testified that traffic cones and a sign stating "road construction" would not indicate which lane is open and which lane is closed. Hayes felt that Carmona "could have easily not known the traffic had been diverted to the inside lane if he pulled on to the road anywhere between the road work crew and where the accident occurred."
Bryan Pagel, a Texas Department of Transportation ("TxDOT") inspector, testified that Clark Construction was performing construction for the State of Texas in accordance with its contract with TxDOT. Rudy Valdez, III, an employee of Clark Construction, testified that Clark Construction was responsible for traffic control and that the right lane was closed at the time of the accident. Luis Ruiz, a foreman for Clark Construction, testified that traffic had been diverted into the left lane. Ruiz and Valdez both testified that a pilot car was not in use. According to Ruiz, TxDOT is responsible for telling Clark Construction where to place signs. Pagel testified that there were no signs advising motorists traveling on the side streets as to which lanes were open, but there were signs that advised of "road work ahead."
Valdez explained that construction signs were placed at both ends of the construction zone and cones were used as required by TxDOT. Ruiz testified that "closed road" signs had been posted at both ends of the construction zone, flaggers were present at the construction site to prevent motorists from driving onto the closed portion of the road, and each intersection had a barricade that read "End of Road Work." Pagel did not recall any problems with Clark Construction's signage or traffic control and he opined that traffic control was properly implemented on the day of the accident. Valdez testified that he would not have done anything differently that day and would still set up the construction site per TxDOT's instructions.
Chad Clark, vice-president of seal coat operations for Clark Construction, testified that Valdez was in charge of the project on the day of the accident, but was not in charge of the safety of the traveling public. He admitted that Clark Construction sets up barricades and other traffic devices, but explained that the construction site must be set up per TxDOT's instructions and Clark Construction has no discretion regarding traffic control. He explained that "TxDOT would have told us how to set up the traffic control, where to put the barricades up on the side streets and that's the way we would have channeled traffic." He believed traffic control was safely implemented on the day of the accident. Because Carmona and Bendy received citations, he believed that they were at fault for causing the accident. After the project's completion, TxDOT sent a letter to Clark Construction, which stated that the work was "completed in a satisfactory manner in accordance with plans and specifications."
Engineer Randolph Schulze agreed that the contractor must follow the contract's traffic control plan ("TCP") and that no amount of inspection or lack thereof would relieve the contractor of this duty. He believed that Bendy was lawfully turning right, but turned into the path of a high-speed vehicle, which indicates that she either did not know the vehicle was coming or failed to take evasive action. He admitted that, without signs or cones prohibiting entry into a particular lane, it would be difficult for a motorist to determine on which side of the cones to drive. He also admitted that Clark Construction's TCP could have been safer and that he saw nothing in the contract that would have prevented Clark Construction from placing barricades, barrels, or additional cones at the construction site. Schulze explained that "the contract documents do not go into sufficient detail to deploy a complete traffic control plan and that judgment is required and  the contract documents give all that authority to the engineer." He testified that "spacing of the cones, the radius of curvature . . . the location issues are subject to engineering judgment." Thus, he did not believe it was Clark Construction's contractual responsibility to "channelize" traffic.
In his affidavit, Engineer David Steitle explained that "there were no cones or temporary traffic control devices at the intersection of FM 105 and West Circle Drive to prevent Mr. Carmona from traveling past West Circle Drive at the location of this incident." In his deposition, Steitle testified that a contractor is supposed to manage construction, minimize disruption of traffic, and make efforts to ensure the safety and convenience of property and the public. He testified that the contractor is directed by the plans, specifications, and authorized engineer. Steitle explained that barricades should be used "anywhere that there is access that could result in a vehicle entering a work space where the public is not intended to travel." According to Steitle, this option should have been used to prohibit motorists from turning into the work space. Steitle also testified that cones should have been used to "delineate the intended path and to channelize traffic into the proper alignment" or to "separate the driving area from the non-driving area[.]" He explained that cones should not have been placed where the accident occurred because, at the time of the accident, construction was not being performed on that part of the road. Steitle opined that because cones were used, traffic coming from the side streets should have been channeled into the open lane of traffic. Steitle admitted that a TCP probably requires engineering judgment. He concluded that:
. Clark Construction  was negligent in inadequately applying traffic control devices for a traffic control plan that would have protected the public. Clark Construction  had a duty to properly apply traffic control devices to prevent the public from using the part of the roadway that was intended to not be used by the public. Clark Construction  failed to apply such traffic control devices. Additionally, Clark Construction  did not act in accordance with its contractual obligations to apply the aforementioned traffic control devices. This failure, in my opinion, constitutes negligence on the part of Clark Construction  and was a substantial factor in bringing about this accident. If Clark Construction  had properly applied the appropriate traffic control devices, this accident would not have occurred. The negligence of Clark Construction  and the inadequate application of traffic control devices referred to above were the proximate and ...