                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-12-00560-CV
                            ____________________

         CLARK CONSTRUCTION OF TEXAS, LTD. AND CLARK
             CONSTRUCTION OF TEXAS, INC., Appellants

                                          V.

 KAREN PATRICIA BENDY, PEGGY RADER, AND DELUS KUHNERT,
                         Appellees
_______________________________________________________              ______________

                    On Appeal from the 163rd District Court
                           Orange County, Texas
                         Trial Cause No. B-100053-C
________________________________________________________              _____________

                           MEMORANDUM OPINION

      Karen Patricia Bendy sued Clark Construction of Texas, Ltd. and Clark

Construction of Texas, Inc. (“Clark Construction”) for negligence, premises

liability, and premises defect arising out of injuries she allegedly sustained during a

motor vehicle collision that occurred on a highway being repaved by Clark

Construction. Peggy Rader and Delus Kuhnert, who were passengers in Bendy’s

vehicle at the time of the accident, intervened in Bendy’s lawsuit. Clark

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Construction filed a traditional motion for summary judgment, which the trial court

denied. On appeal, Clark Construction challenges the denial of its motion for

summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)(1) (West

Supp. 2012). We affirm the trial court’s order denying Clark Construction’s motion

for summary judgment.

                               Factual Background

      On May 19, 2009, Clark Construction was performing construction on farm

to market road (“FM”) 105 in Orange County, Texas. A collision between

Armando Carmona’s vehicle and Bendy’s vehicle occurred in the construction

zone. Bendy and Carmona both received traffic citations. According to the police

report, Carmona disregarded the construction warning sign and drove in a lane

designated as non-travel, Bendy turned right when unsafe to do so, and the two

vehicles collided.

      In his deposition, Carmona testified that he was driving in the right lane of

FM 105 where no construction work was underway. Carmona saw traffic cones

blocking the left and middle lanes. Bendy, Rader, and Kuhnert testified that they

had stopped at the construction zone to wait for a pilot car. Kuhnert saw flagmen

and signs warning of a construction zone ahead, but did not recall seeing

barricades or signs indicating which lanes were closed. Bendy, Kuhnert, and Rader

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testified that they never saw Carmona’s vehicle before impact, and Bendy testified

that the construction vehicles obscured her view. Bendy opined that Clark

Construction should have installed barricades to block off the road so that

Carmona would not have driven into the area.

      Timothy Hayes, who witnessed the accident, testified that he saw no “road

closed” signs. Hayes was two cars behind Bendy, and he testified that traffic cones

were positioned to the right of his vehicle. Before the collision, Hayes saw

Carmona’s vehicle approaching. He testified that traffic cones and a sign stating

“road construction” would not indicate which lane is open and which lane is

closed. Hayes felt that Carmona “could have easily not known the traffic had been

diverted to the inside lane if he pulled on to the road anywhere between the road

work crew and where the accident occurred.”

      Bryan Pagel, a Texas Department of Transportation (“TxDOT”) inspector,

testified that Clark Construction was performing construction for the State of

Texas in accordance with its contract with TxDOT. Rudy Valdez, III, an employee

of Clark Construction, testified that Clark Construction was responsible for traffic

control and that the right lane was closed at the time of the accident. Luis Ruiz, a

foreman for Clark Construction, testified that traffic had been diverted into the left

lane. Ruiz and Valdez both testified that a pilot car was not in use. According to

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Ruiz, TxDOT is responsible for telling Clark Construction where to place signs.

Pagel testified that there were no signs advising motorists traveling on the side

streets as to which lanes were open, but there were signs that advised of “road

work ahead.”

      Valdez explained that construction signs were placed at both ends of the

construction zone and cones were used as required by TxDOT. Ruiz testified that

“closed road” signs had been posted at both ends of the construction zone, flaggers

were present at the construction site to prevent motorists from driving onto the

closed portion of the road, and each intersection had a barricade that read “End of

Road Work.” Pagel did not recall any problems with Clark Construction’s signage

or traffic control and he opined that traffic control was properly implemented on

the day of the accident. Valdez testified that he would not have done anything

differently that day and would still set up the construction site per TxDOT’s

instructions.

      Chad Clark, vice-president of seal coat operations for Clark Construction,

testified that Valdez was in charge of the project on the day of the accident, but

was not in charge of the safety of the traveling public. He admitted that Clark

Construction sets up barricades and other traffic devices, but explained that the

construction site must be set up per TxDOT’s instructions and Clark Construction

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has no discretion regarding traffic control. He explained that “TxDOT would have

told us how to set up the traffic control, where to put the barricades up on the side

streets and that’s the way we would have channeled traffic.” He believed traffic

control was safely implemented on the day of the accident. Because Carmona and

Bendy received citations, he believed that they were at fault for causing the

accident. After the project’s completion, TxDOT sent a letter to Clark

Construction, which stated that the work was “completed in a satisfactory manner

in accordance with plans and specifications.”

      Engineer Randolph Schulze agreed that the contractor must follow the

contract’s traffic control plan (“TCP”) and that no amount of inspection or lack

thereof would relieve the contractor of this duty. He believed that Bendy was

lawfully turning right, but turned into the path of a high-speed vehicle, which

indicates that she either did not know the vehicle was coming or failed to take

evasive action. He admitted that, without signs or cones prohibiting entry into a

particular lane, it would be difficult for a motorist to determine on which side of

the cones to drive. He also admitted that Clark Construction’s TCP could have

been safer and that he saw nothing in the contract that would have prevented Clark

Construction from placing barricades, barrels, or additional cones at the

construction site. Schulze explained that “the contract documents do not go into

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sufficient detail to deploy a complete traffic control plan and that judgment is

required and [] the contract documents give all that authority to the engineer.” He

testified that “spacing of the cones, the radius of curvature . . . the location issues

are subject to engineering judgment.” Thus, he did not believe it was Clark

Construction’s contractual responsibility to “channelize” traffic.

      In his affidavit, Engineer David Steitle explained that “there were no cones

or temporary traffic control devices at the intersection of FM 105 and West Circle

Drive to prevent Mr. Carmona from traveling past West Circle Drive at the

location of this incident.” In his deposition, Steitle testified that a contractor is

supposed to manage construction, minimize disruption of traffic, and make efforts

to ensure the safety and convenience of property and the public. He testified that

the contractor is directed by the plans, specifications, and authorized engineer.

Steitle explained that barricades should be used “anywhere that there is access that

could result in a vehicle entering a work space where the public is not intended to

travel.” According to Steitle, this option should have been used to prohibit

motorists from turning into the work space. Steitle also testified that cones should

have been used to “delineate the intended path and to channelize traffic into the

proper alignment[]” or to “separate the driving area from the non-driving area[.]”

He explained that cones should not have been placed where the accident occurred

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because, at the time of the accident, construction was not being performed on that

part of the road. Steitle opined that because cones were used, traffic coming from

the side streets should have been channeled into the open lane of traffic. Steitle

admitted that a TCP probably requires engineering judgment. He concluded that:

      . . . Clark Construction [] was negligent in inadequately applying
      traffic control devices for a traffic control plan that would have
      protected the public. Clark Construction [] had a duty to properly
      apply traffic control devices to prevent the public from using the part
      of the roadway that was intended to not be used by the public. Clark
      Construction [] failed to apply such traffic control devices.
      Additionally, Clark Construction [] did not act in accordance with its
      contractual obligations to apply the aforementioned traffic control
      devices. This failure, in my opinion, constitutes negligence on the part
      of Clark Construction [] and was a substantial factor in bringing about
      this accident. If Clark Construction [] had properly applied the
      appropriate traffic control devices, this accident would not have
      occurred. The negligence of Clark Construction [] and the inadequate
      application of traffic control devices referred to above were the
      proximate and contributing cause of the accident in which [] Carmona
      struck [] Bendy as she turned from FM [105] onto West Circle Drive
      on the day of the accident. Clark Construction [] knew or should have
      known the condition of the traffic control devices on FM [105].

      TxDot’s standard specifications for construction documents state that

construction should be managed in such a way as to minimize the disruption of

traffic and every effort must be made to ensure the public’s safety and convenience

as provided in the contract and as directed. “Traffic control devices,

advertisements, announcements, and other signs or messages within the highway

right-of-way shall be placed only as authorized by a public authority or the official
                                         7
having jurisdiction, for the purpose of regulating, warning, or guiding traffic.”

Adequate warnings, delineation, and channelization should be used to guide

motorists in advance of and through the construction zone through the use of

proper pavement markings, signage, or other devices. Engineering judgment

should be exercised when selecting and applying traffic control devices, their

location, and their design. The engineer develops and designs the TCP.

      The contractor installs and maintains traffic control devices as shown on the

TCP and as directed. The roadway, temporary approaches, and intersections should

be maintained in a safe and passable condition. Other than minor adjustments to

meet field constructability and visibility, the contractor cannot make changes to the

location of any device or implement changes to the TCP without the engineer’s

approval. When authorized or directed, the contractor should provide additional

signs or traffic control devices that are not required by the TCP. Should the TCP

fail to accomplish the intended purpose due to any condition affecting the safe

handling of traffic, necessary changes should be made, as directed, to correct the

unsatisfactory conditions. The contractor should make reasonable efforts to

promptly contact the engineer should an unexpected situation arise that causes the

contractor to believe the TCP should be changed and the contractor should take

prudent actions until the engineer is contacted.

                                          8
                                   Summary Judgment

      We review a trial court’s ruling on a traditional summary judgment motion

de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003). We “must consider whether reasonable and fair-minded jurors could differ

in their conclusions in light of all of the evidence presented.” Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). We

“consider all the evidence in the light most favorable to the nonmovant, indulging

every reasonable inference in favor of the nonmovant and resolving any doubts

against the motion.” Id. at 756.

      On appeal, Clark Construction contends that the trial court erred by denying

its supplemental motion for summary judgment because, according to Clark

Construction, it is entitled to immunity pursuant to section 97.002 of the Texas

Civil Practice and Remedies Code. A contractor who constructs or repairs a

highway, road, or street for TxDOT is not liable to a claimant for injuries arising

from the performance of the construction or repair if, at the time of the injury, the

contractor is (1) in compliance with contract documents (2) that are material to the

condition or defect (3) that was the proximate cause of the injury. Tex. Civ. Prac.

& Rem. Code Ann. § 97.002 (West 2011). According to the statute’s legislative

history, contractors making road repairs for the State of Texas “must conform to

                                          9
the work specifications set by the governmental unit overseeing the project.” See

House Comm. on Civ. Practices, Bill Analysis, Tex. H.B. 1699, 78th Leg., R.S.

(2003). “Sometimes those specifications may be inadequate or flawed to such a

degree as to threat [sic] or cause harm or damage to some person or some

property.” Id. Thus, a contractor performing roadwork for the State of Texas may

not be held liable for damage or injury resulting from work performed in

substantial compliance with TxDOT’s contract documents. See Tex. Civ. Prac. &

Rem. Code Ann. § 97.002.

      The parties do not dispute that Clark Construction was repairing a road for

TxDOT at the time of the accident. Therefore, if Clark Construction was in

compliance with TxDOT’s contract documents regarding traffic control and its

conduct was the proximate cause of appellees’ injuries, Clark Construction will be

entitled to immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 97.002.

      Proximate cause is composed of cause in fact and foreseeability. Akin,

Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d

106, 122 (Tex. 2009). Cause in fact requires proof that the negligent act or

omission was a substantial factor in bringing about the harm at issue, and absent

that act or omission, the harm would not have occurred. Id. Whether an act or

omission was a proximate cause of damages is usually a fact issue, but when the

                                       10
facts are conclusive, the determination may be an issue of law. Minn. Mining &

Mfg. Co. v. Atterbury, 978 S.W.2d 183, 197 (Tex. App.—Texarkana 1998, pet.

denied).

      The record demonstrates that Bendy received a citation for turning when

unsafe and Carmona was cited for disregarding construction signs. Hayes testified

that he was able to see Carmona’s vehicle approaching, which suggests that Bendy

should have also seen the vehicle. Pagel and Clark testified that traffic control was

properly implemented on the day of the accident. Carmona admitted that he did not

look to his left to see if any traffic was present. Bendy sued Carmona and the

parties settled. Rader and Kuhnert sued both Carmona and Bendy and settled with

Carmona, but their claims against Bendy are still pending. Given the traffic

citations issued, Clark believed that Bendy and Carmona were responsible for

causing the accident.

      Nevertheless, the record also contains evidence suggesting that the accident

would not have happened had the construction site been set up differently.

Kuhnert testified that he could not think of anything Bendy did wrong on the day

of the accident. Rader testified that she did not believe Bendy could have done

anything to avoid the accident. Hayes testified that the manner in which the site

had been set up would not indicate which lanes were closed and that, consequently,

                                         11
Carmona may not have known that traffic had been diverted. Schulze admitted that

without signage or cones blocking the lane, it would be difficult for a motorist to

determine where to drive. Steitle testified that Clark Construction was required to

“properly apply traffic control devices to prevent the public from using the part of

the roadway that was intended to not be used by the public.” Additionally, Clark

Construction was required to maintain the roadway in a safe and passable

condition. Steitle specifically mentioned the use of barricades to prevent access to

a work area where the public is not meant to travel and cones to properly

channelize traffic. Schulze admitted that he saw nothing in the contract that would

have prevented Clark Construction from placing barricades, barrels, or additional

cones at the construction site. Steitle concluded that Clark Construction’s

application of traffic control devices proximately caused the accident.

      Viewing the evidence in the light most favorable to appellees, reasonable

and fair-minded jurors could differ in their conclusions regarding whether Clark

Construction’s conduct was the proximate cause of appellees’ injuries. See Tex.

Civ. Prac. & Rem. Code Ann. § 97.002; see also Akin, 299 S.W.3d at 122; Mayes,

236 S.W.3d at 755. Clark Construction failed to conclusively establish entitlement

to immunity and the trial court properly denied Clark Construction’s traditional

motion for summary judgment. See Bennett Truck Transp., LLC v. Williams Bros.

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Constr., 256 S.W.3d 730, 731-33 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

(Contractor was not entitled to summary judgment on the basis of section 97.002

when the evidence raised a fact issue as to whether the signage required by TxDOT

was present.). We overrule Clark’s issues and affirm the trial court’s order denying

Clark’s motion for summary judgment.

      AFFIRMED.




                                             ________________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice


Submitted on February 27, 2013
Opinion Delivered April 25, 2013
Before McKeithen, C.J., Gaultney and Kreger, JJ.




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