Opinion filed July 18, 2019




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-18-00003-CV
                                  __________

 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


                      MEMORANDUM OPINION
       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


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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,


                                          3
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




        1
         Fred Herrera, TxDOT’s area engineer for the Kermit Job, testified that, at the location of the
accident, the shoulder was nine feet wide. Additionally, Herrera stated that road signs are typically located
seven feet from the shoulder. Thus, according to Herrera, “work taking place next to signs could be
anywhere between 11 and 16 feet from the traveling way.” When Armenta was asked whether he knew
how far “from the roadway, from the shoulder” the Ector County sign was, he responded: “10, 12-foot
away.” However, Appellants argue that, because photographs taken of the crash site show that the point of
impact was on the shoulder, the evidence shows that Payen and Carrillo were working within ten feet of
the traveled way.

                                                     4
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,
subjective awareness of an extreme risk, but nevertheless proceeded with conscious
indifference to the rights, safety, or welfare of Payen or Carrillo.
      In response to Jones Brothers’ motion for summary judgment, Appellants
argued that the summary judgment evidence raised a genuine issue of material fact
regarding whether Jones Brothers was grossly negligent and whether its gross
negligence proximately caused the accident. To defeat Jones Brothers’ motion,
Appellants offered deposition testimony of Rodriguez, Armenta, Martinez, Fred
Herrera (TxDOT’s area engineer for the Kermit Job), and David Steitle (Appellants’
traffic-control expert).   In addition to this evidence, Appellants produced the
following: (1) Jones Brothers’ safety officer designation letter; (2) the relevant
provision of the TCP, entitled “Short Term Work Zone Speed Limits”; (3) the
Kermit Job’s project layout; (4) Steitle’s resume; and (5) photographs taken by the
medical examiner’s office showing the point of impact.
      The trial court took Jones Brothers’ motion for summary judgment under
advisement. Afterwards, the trial court issued an order granting the motion, but did
not specify the grounds for its decision. Because the order effectively disposed of
all the parties and issues, it constituted a final judgment. This appeal followed.


                                           5
                                    Issues Presented
         Appellants present four issues on appeal. Appellants’ first issue is global in
nature and asks whether the trial court erred when it granted summary judgment. In
Appellants’ second issue, they contend that they produced sufficient evidence to
preclude summary judgment on no-evidence grounds. In Appellants’ third issue,
they assert that Jones Brothers failed to prove its affirmative defense of statutory
immunity as a matter of law. Finally, in Appellants’ fourth issue, they argue that
Jones Brothers’ gross negligence was a proximate cause of Payen’s and Carrillo’s
death.
                                        Analysis
         We first address Appellants’ first and second issues regarding whether the
trial court erred when it granted Jones Brothers’ no-evidence motion for summary
judgment on Appellants’ gross-negligence claim. We review a trial court’s summary
judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
Because the trial court did not specify the basis of its ruling, we must affirm the trial
court’s judgment if any of the grounds on which judgment is sought are
meritorious. State v. Ninety Thousand Two Hundred Thirty–Five Dollars & No
Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013). When a party moves for
summary judgment on both no-evidence and traditional grounds, the appellate court
should ordinarily address the no-evidence grounds first. Burleson v. Lawson, 487
S.W.3d 312, 317 (Tex. App.—Eastland 2016, no pet.) (citing Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)).
         We review a no-evidence summary judgment under the same legal sufficiency
standard as a directed verdict. Merriman, 407 S.W.3d at 248. Under this standard,
to defeat summary judgment, the nonmovant has the burden to produce summary
judgment evidence that raises a genuine issue of material fact as to each challenged


                                            6
element of its cause of action. Id. We view the evidence “in the light most favorable
to the nonmovant, crediting evidence a reasonable jury could credit and disregarding
contrary evidence and inferences unless a reasonable jury could not.” Id. A no-
evidence challenge will be sustained when:
      (a) there is a complete absence of evidence of a vital fact, (b) the court
      is barred by rules of law or of evidence from giving weight to the only
      evidence offered to prove a vital fact, (c) the evidence offered to prove
      a vital fact is no more than a mere scintilla, or (d) the evidence
      conclusively establishes the opposite of the vital fact.
Id. (quoting King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)).
      “Gross negligence has both an objective and a subjective component.”
Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012). First, when
“viewed objectively from the actor’s standpoint, the act or omission complained of
must involve an extreme degree of risk, considering the probability and magnitude
of the potential harm to others.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d
778, 785 (Tex. 2001). Second, “the actor must have actual, subjective awareness of
the risk involved, but nevertheless proceed in conscious indifference to the rights,
safety, or welfare of others.” Id. Under the objective element, an extreme risk is
“not a remote possibility of injury or even a high probability of minor harm, but
rather the likelihood of serious injury to the plaintiff.” Mobil Oil Corp. v. Ellender,
968 S.W.2d 917, 921 (Tex. 1998). To establish the subjective component, “the
plaintiff must show that the defendant knew about the peril, but his acts or omissions
demonstrate that he did not care.” Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d
164, 173 (Tex. 2005). “Some evidence of simple negligence is not evidence of gross
negligence. Conversely, some evidence of care does not defeat a gross-negligence
finding.” Harrison, 70 S.W.3d at 785 (citations omitted). Further, “a party cannot
be liable for gross negligence when it actually and subjectively believes that


                                          7
circumstances pose no risk to the injured party, even if they are wrong.” U–Haul
Int’l Inc. v. Waldrip, 380 S.W.3d 118, 141 (Tex. 2012).
      A corporation may be liable for gross negligence only if the corporation itself
commits gross negligence. See Ellender, 968 S.W.2d at 921–22; see also Fort Worth
Elevators Co. v. Russell, 70 S.W.2d 397, 406 (Tex. 1934), disapproved on other
grounds by Wright v. Gifford–Hill & Co., 725 S.W.2d 712 (Tex. 1987). Because a
corporation can “act only through agents of some character,” Fort Worth
Elevators, 70 S.W.2d at 402, the Texas Supreme Court has developed tests for
distinguishing between acts that are solely attributable to agents or employees and
acts that are directly attributable to the corporation. See Hammerly Oaks, Inc. v.
Edwards, 958 S.W.2d 387 (Tex. 1997).
      A corporation is liable for gross negligence if it authorizes or ratifies an
agent’s gross negligence or if it is grossly negligent in hiring an unfit agent. See
Ellender, 968 S.W.2d at 921. A corporation is also liable if it commits gross
negligence through the actions or inactions of a vice principal. See Hammerly Oaks,
958 S.W.2d at 389. “Vice principal” encompasses the following: (a) corporate
officers; (b) those who have authority to employ, direct, and discharge servants of
the master; (c) those engaged in the performance of nondelegable or absolute duties
of the master; and (d) those to whom the master has confided the management of the
whole or a department or a division of the business. See id. at 391.
      In determining whether acts are directly attributable to the corporation, the
reviewing court does not simply judge individual elements or facts. Ellender, 968
S.W.2d at 922. Instead, the court should review all the surrounding facts and
circumstances to determine whether the corporation itself is grossly negligent. See
McPhearson v. Sullivan, 463 S.W.2d 174, 176 (Tex. 1971).                Whether the
corporation’s acts can be attributed to the corporation itself, and thereby constitute


                                          8
corporate gross negligence, is determined by reasonable inferences the factfinder
can draw from what the corporation did or failed to do and the facts existing at
relevant times that contributed to a plaintiff’s alleged injury. See Bowman v.
Puckett, 188 S.W.2d 571, 574 (Tex. 1945).
       Here, Appellants argued that the summary judgment evidence raised a
genuine issue of material fact regarding whether Jones Brothers was grossly
negligent by sending out its workers “without any safety protections” and “without
adhering to the applicable portion of the TCP.” With respect to the TCP, Appellants
claim that it required Jones Brothers to reduce the speed limit when its employees
were working “within ten feet of the traveling way and [were] not protected behind
concrete barriers.” We note, however, that the relevant provision of the TCP at issue
is discretionary and imposed no such requirement on Jones Brothers. Therefore, we
cannot conclude that Jones Brothers was grossly negligent when it failed to follow
a discretionary provision. However, we will assume for purposes of our analysis
that the TCP was mandatory and that Appellants have satisfied the objective element
of gross negligence. Nonetheless, we conclude that the trial court properly granted
summary judgment because Appellants produced no evidence that Jones Brothers
was subjectively aware of the peril involved and, despite this knowledge, decided to
proceed with conscious indifference to the rights, safety, or welfare of Payen or
Carrillo.
       As mentioned above, to support their assertion that Jones Brothers was grossly
negligent, Appellants produced various pieces of summary judgment evidence. The
primary evidence that Appellants rely upon to raise a genuine issue of material fact
consists of deposition transcripts of Rodriguez, Armenta, Martinez, Herrera, and
Steitle.




                                          9
      Rodriguez testified that she had been the safety officer at Jones Brothers for
approximately three years before the accident. She explained that her only training
specific to roadside-construction safety consisted of a three-day class offered by the
“Texas A&M engineering department.” Rodriguez further stated that “[a]ll [of Jones
Brothers’] work requires an extreme risk” and that it was her responsibility to ensure
compliance with all the safety standards related to the Kermit Job. Despite having
this understanding, however, Rodriguez’s testimony showed that she did not review
the TCP and did not administer, attend, or request any safety meetings regarding the
TCP. Her testimony also showed that she did not hold any other preconstruction
safety meetings pertaining to the Kermit Job generally and that she lacked familiarity
with the day-to-day operations of the project.
      Armenta testified that, although he took a class on the Texas Manual on
Uniform Traffic Control Devices for Streets and Highways, no one at Jones Brothers
informed him about the applicable TCP for the Kermit Job. Armenta stated that he
did not attend any meetings regarding the TCP or the preconstruction safety meeting
for the Kermit Job. According to Armenta, he did not know that a TCP for the
Kermit Job even existed. Rather than follow the specific TCP to do the job, Armenta
explained that he relied upon his general experience. Armenta further testified that
Jones Brothers did not use any kind of protection, such as barricades, cones, or
signage, for cleanup work.
      Martinez testified that, when Armenta asked for his help on the Kermit Job,
Martinez did not have any discussion with Armenta about what signage the workers
needed if they were going to be working near the highway. Nor did Martinez have
any such discussions with the blade crew when Martinez arrived on the Kermit side
the next morning. Additionally, Martinez explained that he lacked any training




                                         10
about what signs were necessary when workers were working a certain distance from
the pavement.
      Herrera testified that, if workers were “pick[ing] up debris from the shoulder,”
that activity “would be considered work activity within 10 feet of the traveled
roadway.” According to Herrera, if that was the case, he would have recommended
that Jones Brothers reduce the speed limit and potentially “blockade” the shoulder
where the workers were working. Herrera explained that these safety devices were
intended to protect the workers as well as the traveling public.
      Lastly, Steitle testified at length about what safety devices Jones Brothers
should have employed. The safety devices included a barricade; a “Road work
ahead” sign with flags attached to the top of the sign; channelizing devices, such as
cones or drums; and a truck-mounted attenuator. Because Jones Brothers failed to
employ such devices, Steitle concluded that Jones Brothers was grossly negligent
and that its gross negligence proximately caused the accident.
       Based on this summary judgment evidence, Appellants contend that a
genuine issue of material fact exists regarding whether Jones Brothers was grossly
negligent. We disagree.
      First, even if we assume that Rodriguez was a vice principal of Jones Brothers,
there is no evidence that Rodriguez had an actual, subjective awareness of the risk
involved in this case. Although Rodriguez testified generally that “[a]ll [of] our
work requires an extreme risk,” there is no evidence that Rodriguez had actual,
subjective awareness of the particular risk involved. See Suarez v. City of Texas
City, 465 S.W.3d 623, 637 (Tex. 2015) (discussing that gross negligence requires
knowledge of the particular risk alleged). Specifically, there is no evidence that
Rodriguez knew that Armenta or Martinez had instructed Payen and Carrillo to go
clean up the area around the Ector County sign and that they were out there without


                                          11
any safety equipment. Importantly, Rodriguez testified that she was not aware that,
on the day of the accident, Payen and Carrillo “had been sent to work out on the side
of the highway at the Ector County sign.” Moreover, there is no evidence that
TxDOT informed Rodriquez of any compliance concerns. Consequently, there is no
evidence that Rodriguez proceeded with conscious indifference to the rights, safety,
or welfare of Payen or Carrillo.
      Additionally, although Armenta was a “general manager” and Martinez was
a “job superintendent,” Appellants presented no evidence that either Armenta or
Martinez was a vice principal of Jones Brothers. See Waldrip, 380 S.W.3d at 138
(“An employee’s title alone is not dispositive of whether he is a vice principal.”).
However, even if we assume they were vice principals, we conclude that Appellants
likewise failed to offer any evidence showing that either Armenta or Martinez had
an actual, subjective awareness of the risk involved but, nevertheless, chose to
proceed with conscious indifference to the rights, safety, or welfare of Payen or
Carrillo. See Tarrant Cty. v. Bonner, No. 18-0431, 2019 WL 2256509 (Tex. May 24,
2019) (discussing that conscious indifference in the context of a tort consists of an
act or omission involving an extreme risk to others, an actual awareness of that risk,
and knowledge that harm was a highly probable consequence of the act or omission).
      Specifically, regarding Armenta, Appellants produced no evidence that
Armenta had an actual awareness of the risk of sending Payen and Carrillo to go
clean up the area around the Ector County sign without proper safety protections.
Like Rodriguez, Armenta was not present on the jobsite on the day of the accident.
As a result, there is no evidence that Armenta knew what safety protections Payen
and Carrillo used or lacked. Although Armenta testified that Jones Brothers does
not provide any kind of protection for its workers during the cleanup process, there
is no evidence that Armenta knew that harm was a highly probable consequence of


                                         12
this act or omission. That is, there is no evidence that Armenta had knowledge of
any prior accidents resulting from this conduct, no evidence that any of Jones
Brothers’ employees complained of this practice, and no evidence that TxDOT
raised any compliance concerns regarding the practice. Additionally, there is no
evidence that Armenta was aware of the TCP and chose to disregard it. Further,
Appellants failed to show evidence that Armenta knew that Payen and Carrillo
would be working within ten feet of the highway or at an unsafe distance from the
highway. As such, Appellants failed to produce some evidence that Armenta acted
with conscious indifference.
      Similarly, Appellants produced no evidence that Martinez had an actual
awareness of the risk of instructing Payen and Carrillo to pick up broken asphalt near
the Ector County sign without proper safety protections. As with Armenta, there is
no evidence that Martinez knew about the TCP. Nor is there any evidence that
Martinez knew how close to the highway Payen and Carrillo would be working or
whether they lacked or needed certain safety equipment. Martinez testified that he
simply asked Payen to take his crew and clean up the area around the Ector County
sign without any further discussion. In response to Martinez’s instruction, the crew
loaded up their trailer, and headed toward the Ector/Winkler side without complaint.
Thus, Martinez’s actions show that he was not subjectively aware of any risk at the
time he sent the workers to clean up on the Ector/Winkler side and that he did not
act with conscious indifference to their rights, safety, or welfare.
      Further, Herrera’s and Steitle’s testimony did not address whether Jones
Brothers was subjectively aware of an extreme risk or acted with conscious
indifference to the rights, safety, or welfare of others. Specifically, neither Herrera’s
testimony about what he would have recommended if Jones Brothers’ employees
were working on the shoulder, nor Steitle’s testimony about what safety measures


                                           13
Jones Brothers should have employed, sheds any light on the mental state of a vice
principal or employee at Jones Brothers.
      Likewise, the other evidence that Appellants produced, including the safety
officer designation letter, the relevant provision of the TCP, the project layout,
Steitle’s resume, and the photographs showing the point of impact, fail to show
whether Jones Brothers was grossly negligent.         Specifically, in regard to the
photographs, although they depict the point of impact, they do not show where the
workers were actually working before the impact. More importantly, even if the
photographs did constitute some evidence that Payen and Carrillo were working
within ten feet of the traveled way, there is no evidence that Rodriguez, Armenta, or
Martinez knew that Payen and Carrillo would be working at an unsafe distance from
the traveled way that warranted certain safety precautions.
      Appellants also argue that Jones Brothers was grossly negligent because it
hired and failed to train a competent safety officer and because it failed to train its
supervisory staff regarding applicable safety standards.        However, Appellants
offered no evidence that Jones Brothers was aware, yet consciously indifferent to,
the extreme danger caused by hiring Rodriguez as the safety officer. Moreover,
although Martinez testified that he did not have training regarding when certain signs
should be posted, Appellants produced no evidence that Rodriguez or Armenta knew
that Martinez lacked proper training. Nor is there any evidence that Jones Brothers
knew that Rodriguez or Armenta lacked training on the applicable safety standards.
While Appellants’ summary judgment evidence may well have raised a fact issue as
to Jones Brothers’ ordinary negligence, Appellants failed to produce some evidence
of Jones Brothers’ gross negligence.
      When we view the evidence in the light most favorable to Appellants, there is
no evidence that Jones Brothers had an actual, subjective awareness of an extreme


                                           14
risk but nevertheless proceeded with conscious indifference to the rights, safety, or
welfare of Payen or Carrillo. Because Appellants’ evidence does not raise a genuine
issue of material fact concerning the mental state required to prove gross negligence,
the trial court did not err when it granted Jones Brothers’ no-evidence motion for
summary judgment. We overrule Appellants’ first and second issues.
        In light of our disposition of Appellants’ first and second issues, we need not
address Appellants’ third and fourth issues. See TEX. R. APP. P. 47.1.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


July 18, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


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