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
JONES BROTHERS DIRT AND PAVING CONTRACTORS, INC., Appellee
Appeal from the 70th District Court Ector County, Texas Trial
Court Cause No. A-140, 349
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
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.
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."
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.
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
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
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
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.
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.
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."
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, ...