The opinion
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
HAYDON BUILDING CORPORATION, § No. 08-23-00073-CV
Appellant, § Appeal from the
v. § 41st District Court
JACIE LYNN GREEN, § of El Paso County, Texas
Appellee. § Cause No. 2015DCV1968
MEMORANDUM OPINION
This is an interlocutory appeal of the trial court’s denial of Haydon Building Corporation’s
traditional motion for summary judgment. Appellee Jacie Lynn Green, the daughter of a
construction worker who was killed while he worked in a construction zone of a Texas Department
of Transportation (TxDOT) project, brought a wrongful death and personal injury claim alleging
her father’s death was proximately caused by Haydon Building’s negligent implementation of a
traffic control plan that governed the project. On appeal, Haydon Building contends it conclusively
established its entitlement to protection from liability for Green’s claims based on § 97.002 of the
Texas Civil Practice and Remedies Code.1 Because we conclude that genuine issues of material
fact exist, we affirm the trial court’s denial of Haydon Building’s motion.
1
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(17) (authorizing an appeal from an interlocutory order denying
a contractor’s motion for summary judgment based on § 97.002).
I. FACTUAL AND PROCEDURAL BACKGROUND
Haydon Building, a general contractor, entered into a construction contract with TxDOT
to construct a bridge known as the 1966 Spur Bridge (the Project). Once built, the bridge would
span all east- and westbound lanes of Interstate 10 (I-10) in El Paso. As general contractor, Haydon
Building also contracted with TxDOT to implement and maintain a Traffic Control Plan (the Plan)
for the Project, which TxDOT had developed with an engineering firm. Haydon Building in turn
subcontracted with Leedsman Construction, Inc. d/b/a Traffic Control Specialist (Leedsman
Construction) to implement the Plan.2
To facilitate construction on the Project, the Plan provided for complete freeway closure
as specified by contract terms. Accordingly, the Plan diverted traffic away from I-10 during
construction. The Plan specified the placement of traffic control devices, barricades, truck mounted
attenuators, and warning signs, among its other terms. Specifically, the Plan required Haydon
Building or its subcontractor to “[p]rovide, install, move, replace, maintain, clean, and remove all
traffic control devices as shown on the plans and as directed.”
On May 11, 2014, construction coworkers James Green and Jimmy Joe Broadstreet were
working an overnight shift on the 1966 Spur Bridge. On that occasion, TxDOT planned for the
freeway’s closure to all traffic for about a seven-mile stretch, which TxDOT considered the “work
zone.” To install beams on I-10, Mr. Green and Broadstreet were assembling a crane for their use
throughout their shift.3 Shortly before 2:27 a.m., Jan Nieves Delgado drove onto I-10 east, in
breach of the protected work zone. Delgado crashed into one of the two cranes being assembled,
2
The reporter's record, clerk's record, and parties’ briefs present alternative spellings for Leedsman Construction’s
corporate name. We proceed with the spelling used in the challenged order and notice of appeal in the record of
Leedsman Construction’s appeal, in which we issue an opinion and judgment this same date. See Leedsman Constr.,
Inc. v. Green, No. 08-23-00074-CV (Tex. App.—El Paso July 31, 2024, no pet. h.).
3
To avoid the confusion that arises from daughter and father having the same last name, we refer to Appellee as
“Green” and her father as “Mr. Green.”
2
hitting an 11,000-pound counterweight. The counterweight struck Mr. Green and Broadstreet, who
were standing nearby. Mr. Green died at the scene; while Broadstreet died at a local hospital. It is
undisputed that, prior to Delgado’s driving onto I-10 east, he had been drinking at a local
nightclub.4
In June 2015, Monica Broadstreet filed a lawsuit for the personal injuries and wrongful
death of her husband, Jimmie Joe Broadstreet, against Delgado and the bar where he had been
drinking. Soon, Jacie Lynn Green filed a plea in intervention in Broadstreet’s suit. Similar to
Broadstreet’s, Green’s petition alleged, among other claims, that Haydon Building and Leedsman
Construction were negligent in failing to properly implement TxDOT’s Plan, and in failing to
secure I-10 East from oncoming vehicle traffic. 5 Green alleged that Haydon Building and
Leedsman Construction were both responsible for closing I-10, and maintaining its closure, during
the planned construction of the bridge on the night in question.6
Relative to this interlocutory appeal, Haydon Building filed a traditional motion for
summary judgment alleging it was entitled to immunity from liability on all of Green’s claims
under § 97.002 of the Texas Civil Practice and Remedies Code. As a TxDOT contractor, Haydon
Building argued that § 97.002 provided for immunity when the evidence conclusively established
it substantially complied with contract documents material to the condition or defect alleged as the
proximate cause of the claimed personal injury or death. In that vein, Haydon Building contended
4
The record shows that Delgado faced criminal prosecution as a result of the incident, but the details of his case were
not made a part of this record.
5
Green’s theories of liability against Haydon Building and Leedsman Construction are identical. Leedsman
Construction’s procedural posture has paralleled that of Haydon Building, including appealing the denial of its
summary judgment motion urging immunity under § 97.002. See Tex. Civ. Prac. & Rem. Code Ann. § 97.002. The
issuance of this opinion and the opinion in the companion Leedsman appeal on this same date renders moot Green’s
pending motion to consolidate the two appeals.
6
In their briefing, Haydon Building and Green agree that Haydon Building and Leedsman Construction were both
responsible for implementation of the Plan.
3
that, on the night in question, it established by witness testimony that it had personally inspected
all closure points of the interstate, and it had verified that all required traffic control devices were
placed in compliance with the Plan that governed the Project. Particularly, it urged that TxDOT’s
engineer’s “acceptance of Haydon’s work on the night of the incident determine[d] as a matter of
law that Haydon was compliant with the TxDOT contract documents.”
To its motion, Haydon Building attached multiple exhibits, grouped by similar type as
follows: (1) the Texas Peace officer’s crash report and other post-accident investigative records of
TxDOT and OSHA; (2) affidavits and excerpted depositions of various witnesses; and (3) various
documents related to the Plan’s implementation of a complete freeway closure during construction,
including arial photographs of the Executive Center on-ramp to enter I-10 East; an excerpt of the
Texas Manual on Uniform Traffic Control Devices; an excerpt of TxDOT’s Standard
Specifications for Construction and Maintenance of Highways, Streets, and Bridges; and other
notes and correspondence. As for witnesses, Haydon Building relied on the excerpted testimony
of various persons including Jorge Oregel, a TxDOT Assistant Area Engineer for El Paso County,
who was appointed to his position in January 2014; Edmundo Valencia, Jr., a TxDOT construction
inspector; Todd Wilkes, Haydon Building’s project manager; Jan Nieves Delgado, the driver who
crashed into the crane; and Christina Samples, an El Paso Police Officer called to the scene as a
first responder. Based on its attached evidence, Haydon Building’s motion argued it had
“confirmed that the traffic control devices and barricades were in place before, after, and at the
time of the accident.”
Responding in opposition, Green argued that Haydon Building failed to conclusively
establish its entitlement to § 97.002’s protection. Particularly, she urged that, because reasonable
jurors could reach different conclusions on whether Haydon Building complied with the Plan’s
express terms at the date and time of the collision, it was not entitled to summary judgment on its
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statutory immunity defense. She argued there was no final acceptance of the Project by TxDOT,
and any acceptance of Haydon Building’s performance of the Plan in the hours before the collision,
as it urged, did not conclusively establish its compliance with contract documents at the time of
the fatal injury, especially when there existed conclusive evidence to the contrary. To her response,
Green attached excerpts of deposition transcripts of multiple witnesses, including testimony of
some of the same witnesses as Haydon Building, along with testimony of other witnesses who had
personal knowledge of the conditions of the site or of the traffic control devices at issue.
The trial court denied Haydon Building’s motion for summary judgment. Haydon Building
timely appealed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(17).
II. STANDARD OF REVIEW
We review de novo the trial court’s denial of summary judgment. Lujan v. Navistar, Inc.,
555 S.W.3d 79, 84 (Tex. 2018). Rule 166a(c) of the Texas Rules of Civil Procedure provides that
a court must grant a traditional motion for summary judgment “forthwith if [the summary
judgment evidence and relevant pleadings] show that . . . there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law on the issues expressly
set out in the motion or in an answer or any other response.” Tex. R. Civ. P. 166a(c). If the movant
carries its initial burden of proof, the burden shifts to the nonmovant to raise a genuine issue of
material fact precluding summary judgment. Lujan, 555 S.W.3d at 84. On review, an appellate
court must take as true all evidence favorable to the nonmovant and must make all reasonable
inferences in the nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215
(Tex. 2002). But in doing so, “we cannot disregard ‘conclusive evidence’—that evidence upon
which ‘reasonable people could not differ in their conclusions.’” Helix Energy Sols. Group, Inc.
v. Gold, 522 S.W.3d 427, 431 (Tex. 2017) (citing City of Keller v. Wilson, 168 S.W.3d 802, 816
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(Tex. 2005)). “Typically, evidence is conclusive when it concerns physical facts that cannot be
denied or when a party admits it is true.” Id. at 431 (internal quotation marks omitted) (citing City
of Keller, 168 S.W.3d at 815).
III. SECTION 97.002
In its entirety, § 97.002 reads as follows:
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. Civ. Prac. & Rem. Code Ann. § 97.002. By its terms, § 97.002 limits a contractor’s liability
under the common law, but only when all of its conditions are met. Id.; see also ISI Contracting,
Inc. v. Markham, 647 S.W.3d 489, 495 (Tex. App.—San Antonio 2022, pet. denied) (describing
that § 97.002 “creates immunity for qualifying contractors based on the nature of the legal injury
or damage rather than the type of cause of action or claim.”). We have earlier described that
§ 97.002 has three distinct parts: (1) an introduction describing who qualifies for the statute’s
protection, (2) a middle portion describing the protection afforded by the statute, and (3) an ending
portion that sets forth conditions that must be met for the statute’s protection to apply. A.S. Horner,
Inc. v. Navarrette, 656 S.W.3d 717, 721 (Tex. App.—El Paso 2022, no pet.).
No dispute is raised here that Haydon Building established the first two parts of § 97.002’s
prerequisites: (1) as a TxDOT contractor, Haydon Building was responsible for implementing the
Plan for TxDOT on the bridge construction Project; and (2) Green sued Haydon Building for
personal injury and wrongful death damages, claiming the contractor’s negligent implementation
of the Plan, at the time of the accident, was a proximate cause of her father’s injuries and death.
6
See Tex. Civ. Prac. & Rem. Code Ann. § 97.002; see also Navarrette, 656 S.W.3d at 721.
Accordingly, the parties’ dispute here centers on the final portion of the statute.
Section 97.002 is recognized by several Texas courts as an affirmative defense on which a
contractor bears the burden of proof. See Brown v. RK Hall Constr., Ltd., 500 S.W.3d 509, 512
(Tex. App.—Texarkana 2016, pet. denied); Peachtree Const., Ltd. v. Head, No. 07-08-0020-CV,
2009 WL 606720, at *3 (Tex. App.—Amarillo Mar. 10, 2009, no pet.) (mem. op.). As relevant
here, Haydon Building must conclusively establish each element of the contested, ending portion
of § 97.002’s immunity defense. See Lujan, 555 S.W.3d at 84. If Haydon Building carried that
burden, the burden then shifted to Green, as the nonmovant, to raise a genuine issue of material
fact precluding Haydon Building’s entitlement to summary judgment. See id.
IV. ANALYSIS
In its sole issue, Haydon Building argues it conclusively established its entitlement to
§ 97.002 immunity. Specifically, it claims it conclusively established its compliance with the
contract documents “on the night of the accident,” material to the condition that was alleged as a
proximate cause of Mr. Green’s fatal injury. It argues that, in determining the required compliance
with the Plan, we merely need to construe the Plan’s plain language. It points out that, regardless
of whether the Plan was inadequate or flawed, it had no discretion to deviate from the Plan’s terms.
It contends that TxDOT’s lead engineer’s determination that it complied with the Plan amounted
to conclusive proof of its entitlement to § 97.002 immunity.
In response, Green argues that Haydon Building misconstrues its evidentiary burden
relative to establishing entitlement to § 97.002’s liability protection as a matter of law. Green
maintains that Haydon Building, as a movant asserting an affirmative defense, shoulders the
burden of conclusively establishing each of § 97.002’s conditions. See Tex. R. Civ. Proc. 166a(c);
7
Lujan, 555 S.W.3d at 84. Based on § 97.002’s plain language, she urges that Haydon Building
must conclusively establish more than general compliance with material contract terms—that
instead, it must establish its contract compliance relative to “the time of the personal injury,
property damage, or death,” as the plain text of the statute requires. See Tex. Civ. Prac. & Rem.
Code § 97.002. To this extent, Green contends that Haydon Building’s evidence standing alone
does not establish it met its initial burden of conclusively establishing every element of its
affirmative defense under § 97.002. But, she further argues that, even if Haydon Building did meet
its initial burden, her summary judgment evidence was more than sufficient to create a fact issue
precluding summary judgment. To resolve this evidentiary dispute, we begin with the terms of the
immunity statute.
By its plain words, § 97.002 sets forth particular conditions that must be met before liability
protection is afforded to a qualifying contractor. In the final, conditional clause of the provision,
immunity is afforded: “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. Civ. Prac. & Rem.
Code Ann. § 97.002 (emphasis added). In construing this phrasing, this Court has determined “the
text provides [a] crucial condition under which the statute applies, and in doing so, [it] reveals the
Legislature’s intent.” Navarrette, 656 S.W.3d at 725. Applying that condition, “[a] contractor is
only shielded from liability ‘if, at the time of the personal injury . . . the contractor is in compliance
with contract documents material to the condition or defect that was the proximate cause of the
injury.’” Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. § 97.002). In Navarrette, we noted the
phrase “at the time of the injury” imposes a link between two events or conditions. Id. More
specifically, the injury on which the suit is based is linked temporally with the contractor’s
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compliance with relevant contract documents. Id. In context, that link must be viewed relative to
the condition or defect that is alleged as the cause of the claimed injury. Id.
In a procedurally similar case, Houston’s Fourteenth District Court of Appeals construed
§ 97.002’s requirements regarding a claim for property damage. See Bennett Truck Transp., LLC
v. Williams Bros. Const., 256 S.W.3d 730, 732 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
There, the plaintiff motor carrier alleged that a contractor’s lack of compliance with a traffic
control plan at the time of the incident had proximately caused damage to a manufactured home it
was transporting. Id. at 731. The plaintiff’s driver testified that, as he approached an area of road
construction, no signs indicated that lanes would narrow to such an extent that they would not
accommodate an oversized load. Id. In contrast, the TxDOT contractor presented evidence that it
generally complied with contract signage requirements and an employee checked the site multiple
times daily to ensure all signs were in place. Id. at 732. More specifically, however, the contractor
testified he could not recall any signs missing, but “he could not testify that at the exact date and
time of the accident, a sign was present.” Id. at 732–33. Our sister court of appeals determined
that, because the evidence presented a fact issue as to whether the necessary signs were in place at
the time of the incident, the trial court erred in granting summary judgment in favor of the
contractor. Id. at 733.
Here, to establish its entitlement to § 97.002 immunity, Haydon relies on the affidavit and
deposition of TxDOT’s lead engineer Jorge Oregel, arguing his testimony conclusively established
compliance as a matter of law. Oregel testified that employees of Leedsman “placed all of the
traffic control devices and signs at all of the entrance ramps of the Project.” Oregel further attested
that he and a TxDOT inspector, together, had inspected the Project before and after vehicle traffic
was diverted from I-10 as required by the Plan. He asserted he had observed “all of the entrance
ramps in the Project had traffic control devices and signs placed in accordance with” TxDOT’s
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plans. He further testified that, after midnight on May 11, 2014, he “specifically recall[ed]
observing that the TMA’s (truck mounted attenuators) were placed,” which he himself had
approved. He also testified that he inspected each highway closure and determined the traffic
control barriers were properly in place in accordance with the Plan.
Haydon Building contends that Oregel’s determination of compliance amounts to
conclusive proof because the terms of its contract with TxDOT vested “final and binding”
authority for determining contract compliance in a TxDOT engineer such as Oregel. As excerpted,
the TxDOT contract, portions of which were included in the summary judgment record, provides
as follows:
5.1. Authority of Engineer. The Engineer has the authority to observe, test,
inspect, approve, and accept the work. The Engineer decides all questions about the
quality and acceptability of materials, work performed, work progress, Contract
interpretations, and acceptable Contract fulfillment. The Engineer has the authority
to enforce and make effective these decisions.
The Engineer acts as a referee in all questions arising under the terms of the
Contract. The Engineer’s decisions will be final and binding.7
In pointing to this provision as dispositive of immunity, Haydon Building relies heavily on
ISI Contracting, 647 S.W.3d at 501–02. It contends the San Antonio Court of Appeals construed
Item 5.1 of the TxDOT contract, which is worded the same as it is in Haydon Building’s contract,
as establishing entitlement to immunity under § 97.002. Relevant to Item 5.1, ISI Contracting
concluded that the “Engineer’s acceptance of that work determines as a matter of law that [the
contractors] were in ‘compliance with contract documents material to the condition or defect that
was the [alleged] proximate cause of the personal injury, property damage, or death.’” Id. (second
alteration in original) (citing Tex. Civ. Prac. & Rem. Code Ann. § 97.002).
7
Definitions of terms are provided in TxDOT’s Standard Specifications for Construction and Maintenance of
Highways, Streets, and Bridges. The term “Engineer,” is defined as “[t]he Executive Director of the Department or
the authorized representative of the Executive Director.”
10
We conclude that ISI Contracting is unavailing. The contractor in ISI Contracting had
completed its repair work several months before the accident that was a subject of the suit. Id.
There, it was not disputed “that the TxDOT Engineer approved and accepted the work which was
the basis of the [plaintiff’s] claims.” Id. at 502. Because ISI Contracting involved repair work that
had been fully performed in its entirety, the engineer’s approval and acceptance of the contractor’s
work was finally determined long before the injury-causing event occurred. Id. at 492. Conversely,
the accident in this case happened while Haydon Building was in the process of performing its
contract. It had the obligation to place and maintain the planned barricades. For proof of
compliance, Haydon Building relied on Oregel’s affidavit, which stated that sometime between
midnight and 1:00 a.m. the barricades at Executive Center were in place. The accident giving rise
to this suit occurred at 2:27 a.m., and as we note below, the dynamic nature of this project meant
that workers were moving the barricades to let work crews and vehicles pass. So unlike ISI
Contracting, this record does not contain an ultimate decision on Haydon Building’s contract
fulfillment. Stated differently, a lead engineer’s approval of a contractor’s placement of traffic
control barriers during an overnight shift of an ongoing project differs significantly from TxDOT’s
approval of completed work.
Further, even assuming that Haydon Building met its summary judgment burden by
initially establishing its compliance with the Plan through Oregel’s inspection and approval of
each entrance to the work zone, Green raised genuine issues of material fact as to whether the
barriers remained in compliance at the time of her father’s death. Here, construction workers
testified that, even after traffic barriers had been positioned in place on the Executive Center
freeway on-ramp, the barriers were subsequently moved, out of necessity, to get machinery and
vehicles to the work zone.
11
Additionally, Delgado, the motorist who crashed into the crane, testified he ultimately
found a way onto the lanes of the closed freeway. Initially, he described that he drove in circles on
the Executive Center overpass as he looked for an entrance to I-10 East. He relied heavily on his
GPS unit for directions. As much as he confirmed that he saw a blocked entrance, he could not
otherwise describe the location of the entrance as he could not remember. There is no dispute here
that the Executive Center I-10 East on-ramp includes two entrances that merge into a single
ramp—where one entrance serves the northbound traffic of Executive Center boulevard while the
other entrance serves its southbound traffic. Ultimately, however, there is also no dispute that
Delgado drove his vehicle on the closed lanes of the freeway during the time when workers were
engaged in planned construction activity. At his deposition, Delgado testified he did not bust
through any barricades or jump over any medians to access I-10 East. Although Delgado admitted
he initially had trouble accessing a freeway entrance, he nonetheless described that when he did
drive onto the lanes of the interstate, there was no traffic device blocking his pathway. Especially
relevant to our inquiry, the TxDOT documents hold Haydon Building contractually responsible
for not only installing traffic control devices, barriers, and signs, but also responsible for
maintaining their placement when such devices were needed for construction purposes.
Under the applicable standard of review, we must take as true all evidence favorable to
Green and make all reasonable inferences in her favor. Grant, 73 S.W.3d at 215. We conclude that
a genuine issue of fact exists as to whether Haydon Building complied and remained in compliance
with contract documents material to the condition that Green alleged as a proximate cause of the
claimed injury. Particularly, workers described they had necessarily moved barriers after midnight
to access their equipment and enter the work zone; and no evidence conclusively established the
barriers remained in their correct positions between the time of the engineer’s last inspection and
the time of Mr. Green’s death. See Bennett Truck Transp., 256 S.W.3d at 732–33 (holding the
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evidence presented a fact issue as to whether the necessary signs were in place at the time of the
incident when the contractor testified he could not recall any signs missing, but “he could not
testify that at the exact date and time of the accident, a sign was present”).
Because a fact issue exists as to Haydon Building’s compliance at the relevant time, it
failed to conclusively establish entitlement to immunity protection under § 97.002 and the trial
court properly denied its traditional motion for summary judgment.
We overrule Haydon Building’s sole issue.
V. CONCLUSION
We affirm the trial court’s denial of Haydon Building’s Second Amended Traditional
Motion for Summary Judgment. We deny as moot Green’s motion to consolidate.
GINA M. PALAFOX, Justice
July 31, 2024
Before Alley, C.J., Palafox and Soto, JJ.
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