Background
Webber, LLC was performing highway construction at the intersection of State Highway 36 and Business Interstate Highway 35 under a contract with the Texas Department of Transportation. Rachel Preter was walking to school when she attempted to cross SH-36 at the intersection and was struck by a vehicle, sustaining severe injuries.
Preter sued Webber and others for negligence, alleging that Webber failed to implement the traffic-control plan properly, remove crosswalk markings, close the intersection to pedestrians, and provide a safe alternative after removing pedestrian signals. Webber sought summary judgment under Texas Civil Practice and Remedies Code section 97.002, which protects qualifying TxDOT contractors from liability when they complied with contract documents material to the condition that proximately caused the injury. The trial court denied the motion and overruled Webber’s objections to Preter’s summary-judgment evidence, prompting an interlocutory appeal.
The Court’s Holding
The Fourth Court of Appeals affirmed. Although Webber qualified as a TxDOT highway contractor and Preter’s claims fell within section 97.002, Webber did not conclusively establish the statute’s required condition: compliance with contract documents material to the alleged dangerous condition. The evidence conflicted over whether the intersection should have been closed to pedestrians and whether Webber therefore should have removed the crosswalk markings.
The court also held that the TxDOT area engineer’s testimony that she “believe[d]” Webber complied did not conclusively establish compliance. Unlike a prior case involving completed and formally accepted work, Webber’s construction remained ongoing, and the record did not show that the engineer had accepted the particular work underlying Preter’s claims. The trial court also acted within its discretion by admitting Preter’s expert declaration and overruling Webber’s broad objections to more than 700 pages of design-consultant deposition testimony.
Key Takeaways
- Section 97.002 does not provide blanket immunity to every contractor performing highway work for TxDOT.
- A contractor seeking traditional summary judgment must conclusively prove compliance with contract documents material to the condition alleged to have caused the injury.
- Conflicting evidence about whether the intersection was to remain open to pedestrians and whether crosswalk markings should have been removed created a genuine fact issue.
- An engineer’s equivocal opinion about compliance, without acceptance of the specific work at issue, did not establish immunity as a matter of law.
Why It Matters
The decision limits the ability of TxDOT contractors to obtain section 97.002 immunity at the summary-judgment stage when construction is ongoing and evidence conflicts about the contractor’s obligations. General project oversight or an engineer’s retrospective belief in compliance may not substitute for conclusive proof concerning the specific work and condition underlying the plaintiff’s claim.
The opinion also underscores the need for precise evidentiary objections. A party generally cannot challenge hundreds of pages of deposition testimony as a whole when at least some portions are admissible, particularly after relying on the same depositions in its own summary-judgment motion.