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Manzano-Hernandez v. Jones Brothers Dirt and Paving Contractors, Inc.

Court of Appeals of Texas, Eleventh District

July 18, 2019

LAURA MARINA MANZANO-HERNANDEZ, INDIVIDUALLY AND AS NEXT FRIEND OF I.A.C., A MINOR, AND MARIA GUADALUPE PAYEN, INDIVIDUALLY AND AS NEXT FRIEND OF J.P., A MINOR, Appellants
v.
JONES BROTHERS DIRT AND PAVING CONTRACTORS, INC., Appellee

          On Appeal from the 70th District Court Ector County, Texas Trial Court Cause No. A-140, 349

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [2]

          MEMORANDUM OPINION

          KEITH STRETCHER JUSTICE

         Appellants, the surviving spouses and children of Reyes Payen and Sergio Carrillo, sued Appellee, Jones Brothers Dirt and Paving Contractors, Inc., for gross negligence. Payen and Carrillo died while working for Jones Brothers. Jones Brothers answered and moved for summary judgment on traditional and no-evidence grounds. Jones Brothers argued, among other things, that Appellants presented no evidence that Jones Brothers was aware of an extreme degree of risk but nonetheless proceeded with conscious indifference. The trial court granted summary judgment for Jones Brothers. In four issues, Appellants appeal the trial court's order granting Jones Brothers' traditional and no-evidence motion for summary judgment. Because we conclude that Appellants produced no evidence of Jones Brothers' gross negligence, we affirm.

         Summary Judgment Evidence

         Jones Brothers provides pavement construction services for both public and private clients, including the Texas Department of Transportation (TxDOT). In 2015, Jones Brothers contracted with TxDOT to repair an eighteen-mile stretch of a two-lane highway, starting from Kermit, Texas, and heading east toward the Ector/Winkler County line-the project was known as the "Kermit Job." The contract between Jones Brothers and TxDOT also included a Traffic Control Plan (TCP). The purpose of the TCP was to ensure the safety of the workers and the general public during road construction. In relevant part, the TCP addressed when the speed limit should be reduced during work activity. Specifically, it stated: "[w]hen workers or equipment are not behind concrete barrier, [and] when work activity is within 10 feet of the traveled way or actually in the [traveled] way," short-term work-zone speed limits "may be included on the design of the traffic control plans."

         Cathy Rodriguez was the safety officer at Jones Brothers. Rodriguez was tasked with holding safety meetings, handling safety programs, and enforcing OSHA-related safety requirements. Additionally, Rodriguez was in charge of providing safe working conditions for Jones Brothers' employees and the traveling public. Jones Brothers also employed several supervisory personnel for its projects. These individuals included Salvador Armenta (a general manager of the Kermit Job) and Silberio Martinez (a job superintendent). The evidence shows that Rodriguez did not review the TCP prior to the accident in this case. Furthermore, the evidence shows that Armenta did not review the applicable provision of the TCP and had no familiarity with it.

         Payen and Carrillo were also employees of Jones Brothers; they were both members of "the blade crew." Their job responsibilities included "shoulder[ing] up" and "clean up." The shouldering-up work consisted of "evening out the edges" after the asphalt and concrete were laid, and the cleanup work included picking up large pieces of broken asphalt that resulted from the shouldering-up work.

         By October 21, 2015, the Kermit Job was nearly complete-the highway had been paved and the blade crew was working on the west end of the eighteen-mile stretch of highway (the Kermit side). The day before, Armenta had called Martinez and asked Martinez to go help on the Kermit Job the following morning. Specifically, Armenta told Martinez to "go down and . . . keep an eye on the guys and make sure [that] before [they] left to pick up that material by the [Ector County] sign"; the Ector County sign was located on the east end of the eighteen-mile stretch of highway (the Ector/Winkler side). Martinez had been working at a different job site, and October 21 was the first time he had gone to work on the Kermit Job.

         When Martinez arrived at the job site on the morning of October 21, the blade crew was working on the Kermit side. After they finished, Martinez instructed Payen to take his crew, which included Carrillo and Raul Ochoa, to the Ector/Winkler side and cleanup the area around the Ector County sign. Neither Rodriguez nor Armenta were present on-scene during this time. After Martinez gave the crew these orders, the crew loaded up a trailer, which was attached to their truck, and headed toward the Ector/Winkler side. Martinez stayed behind on the Kermit side.

         When the crew arrived on the Ector/Winkler side, they were cleaning up the area around the Ector County sign, which was located away from the road and off the shoulder, in the south "bar ditch" of the two-lane highway (i.e. south of the eastbound lane). It is undisputed that the speed limit had not been reduced, and there were no barricades to protect Payen, Carrillo, and Ochoa during the cleanup work. The speed limit at the location was seventy-five miles per hour.

         Shortly after the crew started the cleanup work, the driver of an 18-wheeler, who was traveling in the westbound lane of the two-lane highway, lost control of his truck, crossed the yellow center line and the eastbound lane, entered the shoulder of the roadway, and fatally struck Payen and Carrillo; Ochoa survived without any injuries. The parties dispute whether Payen, Carrillo, and Ochoa were working within ten feet of the traveled way.[1]

         Procedural History

         After the accident, Appellants sued: (1) Jones Brothers, (2) the driver of the 18-wheeler, and (3) the driver's employer. Appellants settled with the truck driver and his employer, but pursued their gross-negligence claim against Jones Brothers. Appellants claim that Jones Brothers "was grossly negligent in sending out [Payen and Carrillo] to work alongside a busy highway without any safety protections and without adhering to the applicable portion of the TCP . . . for Short Term Work Speed Limits."

         Jones Brothers filed a traditional and no-evidence motion for summary judgment. In the motion, Jones Brothers argued that (1) there was no evidence of Jones Brothers' gross negligence, (2) the truck driver's acts or omissions were the sole proximate cause of the accident, and (3) Jones Brothers was entitled to summary judgment on its affirmative defense of statutory immunity under Section 97.002 of the Texas Civil Practice and Remedies Code. Regarding the gross-negligence claim, Jones Brothers argued that there was no evidence that Jones Brothers had actual, ...


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