The Supreme Court of Texas has held that a defendant need not be in privity with the Texas Department of Transportation (TxDOT) in order to be able to assert the defense that the contractor is in compliance with contract documents material to the condition or defect that proximately caused personal injury, property damage, or death. Those who contract directly with TxDOT will ordinarily be working for TxDOT as required to assert the defense. Subcontractors hired to perform part of the work will generally be working for TxDOT as well. But even contractors and subcontractors of other governmental subdivisions are considered to work for TxDOT when TxDOT will be responsible for the operation and maintenance of the road. The court leaves open the possibility that contractors and subcontractors of other governmental subdivisions might be considered to work for TxDOT in other situations where TxDOT has more involvement than supervisory regulatory authority.
Pedro Castaneda was injured when he failed to yield the right of way at a stop sign that controlled an intersection in a construction zone while the traffic lights were not operational. Two vehicles collided with his truck.
Castaneda’s family sued defendants including SpawGlass Civil Construction, Inc., the general contractor hired by Montgomery County for the “County Project” portion of a toll road project, and Third Coast Services, LLC, a subcontractor of SpawGlass, whose scope of work was to furnish and install electrical components including traffic signals.
The Texas Legislature has provided an affirmative defense to certain highway, road and street contractors:
A contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation is not liable to a claimant for personal injury, property damage, or death arising from the performance of the construction or repair if, at the time of the personal injury, property damage, or death, the contractor is in compliance with contract documents material to the condition or defect that was the proximate cause of the personal injury, property damage, or death.
Tex. R. Civ. P. 97.002. A contractor whose motion for summary judgment on this defense is denied has the right to immediately appeal that determination. Tex. R. Civ. P. § 51.014(a)(17). In this case, the trial court denied the motions for summary judgment, the contractors appealed, and the court of appeals affirmed. The court of appeals concluded that the affirmative defense applies only to contractors hired by TxDOT, and it did not consider whether the contractors’ work constituted construction or repair of a highway or street, or whether the contractors complied with the contract documents.
The Supreme Court of Texas reversed the court of appeals. In construing the statute, the supreme court noted instances in which the legislature specified a privity requirement when that was its intent. The court reasoned the omission of such language in § 97.002 was deliberate and concluded the section does not require privity. The toll project was split into two parts, with the county designing and constructing part in cooperation and coordination with TxDOT, who must review and approve the county’s plans. But significantly, the agreement specified that TxDOT would be responsible for maintenance of the frontage roads. The supreme court declined the invitation to hold that a requirement to coordinate with TxDOT and submit plans to TxDOT for review and approval would be enough, so as to avoid making almost any work performed on a public road or highway into work considered performed for TxDOT. But the contractors’ work on the frontage road, which TxDOT would be responsible for operating and maintaining, meant it worked for both the county and TxDOT.
Work on a highway is broader than just the road. The applicable definition of “highway” includes “other necessary structure related to a public road. Tex. Transp. Code § 221.001(1). The supreme court has previously held that such structures pertain “to the physical function of the road, such as a guard rail.” State v. Fid. & Deposit Co. of Md., 223 S.W.3d 309, 312 (Tex. 2007). In this case, the court held traffic signals also come within the definition.
Construction is broad enough to encompass general contractors. Even if subcontractors perform all the physical work, a general contractor who bears ultimate responsibility to the owner still “constructs” the project.
The Supreme Court of Texas remanded the appeal back to the court of appeals to consider whether the contractors conclusively established their compliance with the contract documents material to the condition or defect that caused the injury. This was an evidentiary issue the court of appeals had not evaluated, and the supreme court sent it back for that evaluation.
