# Webber, LLC v. Mubarak Mubarak

> Texas Court of Appeals, 1st District (Houston) · March 6, 2025

URL: https://www.frixlaw.com/law-library/cases/10819435

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** March 6, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10819435

## How later opinions describe it (automated extraction)

- holding that evidence that additional safety precautions could have been taken is not evidence that contractors failed to comply with contract documents material to condition or defect that caused plaintiff’s injuries

## Opinion text

Opinion issued March 6, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00378-CV
———————————
WEBBER, LLC, Appellant
V.
MUBARAK MUBARAK, Appellee

On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2022-44299

OPINION

Appellant Webber, LLC contracted with the Texas Department of

Transportation to build and improve portions of Interstate 10 (“I-10”) in Austin

County, Texas. Appellee Mubarak Mubarak was driving his truck on I-10 when his

truck was struck by a piece of rebar that Webber recently had placed over freshly
poured concrete on an I-10 overpass. Mubarak sued Webber for negligence and

Webber moved for summary judgment asserting immunity under Section 97.002 of

the Texas Civil Practice and Remedies Code. After a hearing, the trial court denied

Webber’s motion for summary judgment.

In this interlocutory appeal, Webber argues the trial court erred in denying its

summary judgment motion because it conclusively established the requirements for

immunity under Section 97.002 of the Texas Civil Practice and Remedies Code and

Mubarak failed to raise a genuine issue of material fact precluding summary

judgment.1 We conclude the trial court abused its discretion in denying Webber’s

motion for summary judgment. Webber, a Texas Department of Transportation

contractor, conclusively established that at the time of Mubarak’s alleged personal

injury and property damage, it was in compliance with the contract provisions

material to the condition that was the proximate cause of Mubarak’s alleged injury,

and Mubarak failed to present evidence creating an issue of material fact precluding

summary judgment. Webber was thus entitled to immunity under Section 97.002.

We reverse and render.

1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(17) (authorizing interlocutory
appeal from order that “grants or denies a motion for summary judgment filed by a
contractor based on Section 97.002” of Texas Civil Practice and Remedies Code).

2
Background

Appellant Webber, LLC contracted with the Texas Department of

Transportation (“TxDOT”) to rebuild and improve portions of I-10 in Austin

County, Texas, including an overpass at I-10 and Chew Road in Sealy, Texas

(“Chew Road overpass”). On October 11, 2020, Mubarak was driving on an I-10

feeder road in Sealy when a 100-pound piece of rebar fell from the Chew Road

overpass and traveled into and through the windshield of Mubarak’s truck.2

Webber had recently poured fresh concrete on the overpass and covered the

concrete with wet cotton mats and plastic as required by the concrete “wet curing”

specifications in its contract with TxDOT ( “TxDOT Contract”). As part of the

“wet curing” process, which required that the cotton mats and plastic be weighted

down for a period of ten days, Webber used rebar to weigh down the mats and

plastic to ensure they remained in direct contact with the fresh concrete during the

ten-day curing period. The accident occurred on a Sunday when no Webber

employees were working at the Chew Road overpass construction site. According

to Webber, on that day, there was “an unexpected wind gust of 35 miles per hour

that had not been forecast for the area” that “pushed the mats and plastic causing the

rebar to go over the side of the Chew Road overpass” striking Mubarak’s truck.

2
Mubarak, who works transporting cars from one state to another, testified in his
deposition that the rebar did not hit him personally, he did not hit the inside of his
truck when the impact occurred, and no air bags deployed. After pulling over, he
continued driving to Kermit, Texas that same day for his job.

3
Mubarak alleges he sustained serious personal injuries and property damage

because of the accident. He sued Webber for negligence, alleging Webber

negligently or carelessly “dropp[ed]” a piece of rebar onto his truck, failed to use

reasonable and ordinary care toward him, failed to properly secure and/or maintain

control of the rebar, failed to implement and enforce reasonable safety plans,

policies, and procedures, and failed to hire and train competent employees and/or

contractors. Mubarak also pleaded the doctrine of res ipsa loquitur, arguing he

would not have been injured but for Webber’s negligence, and the instrumentality

that caused his injury was under Webber’s exclusive control.

Webber filed a general denial and relevant to this appeal, it asserted

immunity under Section 97.002 of the Texas Civil Practice and Remedies Code.

Section 97.002 provides:

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 § 97.002. Webber filed a traditional motion for

summary judgment arguing it was entitled to immunity under Section 97.002

because it had established conclusively that at the time of the accident, it was in

compliance with the TxDOT Contract’s specifications for construction of the Chew
4
Road overpass material to the condition or defect that was the proximate cause of

Mubarak’s alleged injuries.3

Webber argued that it was in compliance with the material provisions of the

TxDOT Contract because the contract specifications for Concrete Pavement (Item

360) and Concrete Superstructures (Item 422) required the use of “wet curing”

when pouring fresh concrete on superstructures, such as the Chew Road overpass.

Webber explained that pursuant to those contract specifications, shortly after

concrete is poured, cotton mats are laid atop the fresh concrete, wetted down, and

then covered in plastic. The mats and plastic must then be weighted down so that

the mats are in continuous contact with the fresh concrete during a ten-day curing

period. Webber argued that “the use of rebar during the wet curing process [to

weigh down the mats and plastic] is industry standard, and TxDOT never found

Webber out of compliance with its contract due to the use of rebar during this

3
Webber also filed a no-evidence motion for summary judgment, arguing that
because Mubarak’s negligence claim was in essence a “premises liability claim”
and Mubarak was a licensee, Mubarak was required to establish that “at the time of
the incident,” Webber “had actual knowledge that a condition on its project created
an unreasonable risk of harm” to Mubarak. Webber argued that Mubarak had no
evidence of actual knowledge and thus summary judgment was proper. Because
Webber filed the present interlocutory appeal under Section 51.014(a)(17), we may
review only the denial of Webber’s traditional motion for summary judgment based
on statutory immunity, and we may not address Webber’s no-evidence motion for
summary judgment or any arguments concerning Mubarak’s alleged failure to
produce evidence of Webber’s knowledge. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(17). We thus limit our review to Webber’s assertion of immunity
under Section 97.002.

5
process.”4 In support of its summary judgment motion, Webber attached excerpts

from the deposition of its senior project manager Jonathan Weiser, Weiser’s

unsworn declaration, excerpts from the TxDOT Contract, and a meteorologist’s

report.5

In his summary judgment response, Mubarak argued that Section 97.002 was

inapplicable because Webber had not established conclusively that it was “in

compliance with” the relevant contract documents at the time of the accident.

Mubarak first argued that because there was no provision in the TxDOT Contract

authorizing the use of rebar to weigh down the cotton mats and plastic during the

wet curing process, Webber had not established it was in compliance with the

“contract documents material to the condition or defect” giving rise to Mubarak’s

injuries. Second, Mubarak argued that the summary judgment evidence established

Webber had not complied with Section 7.2.4 of the TxDOT Contract,6 which

4
As part of the TxDOT Contract, Webber was required to comply with the contract
specifications requiring the use of wet curing when pouring concrete on
superstructures such as an overpass. Those specifications are Special Provision
360 (Concrete Pavement) and Special Provision 422 (Concrete Superstructures).
Item 360 explains the curing process, including how to cover fresh concrete. Item
422 describes the materials to be used in the curing process, but it does not specify
which material is to be used to weigh down the cotton mats and plastic placed on
the curing concrete.
5
Weiser was Senior Project Manager for Webber on the construction project at
issue.
6
Section 7.2.4 of the Contract, entitled “Public Safety and Convenience,” provides:
Ensure the safety and convenience of the public and property as
provided in the Contract and as directed. Keep existing roadways
6
required Webber to “maintain the roadway in a good and passable condition.” Last,

Mubarak argued that Webber had violated Section 4.8.17 of the TxDOT Contract by

“failing to adequately weight the mats and anchor the enclosure to the ground[,]

which resulted in the launch of rebar onto [Mubarak’s] vehicle.” Mubarak objected

to portions of Weiser’s declaration as speculative, hearsay, and conclusory and to

the meteorologist’s report in its entirety as hearsay, irrelevant, and conclusory.8

Webber replied that the absence of a contractual provision expressly calling

for the use of rebar to weigh down the cotton mats and plastic during the wet curing

process was irrelevant because Webber complied with TxDOT’s “plans and

specifications” for “cover[ing] freshly-poured concrete on an overpass with cotton

blankets and plastic” and subsequently “weigh[ing] down the mats and plastic.”

Webber argued that Weiser’s deposition testimony and declaration established

open to traffic or construct and maintain detours and temporary
structures for safe public travel. Manage construction to minimize
disruption to traffic. Maintain the roadway in a good and passable
condition, including proper drainage and provide for ingress and
egress to adjacent property.
7
Section 4.8.1 of Contract Item 422 provides:
Cotton Mats. Keep the concrete continuously wet by maintaining wet
cotton mats in direct contact with the concrete for the required curing
time. Weigh the mats adequately to provide continuous contact with
all concrete. Cover surfaces that cannot be cured by direct contact
with mats, forming an enclosure well anchored to the forms or
ground so outside air cannot enter the enclosure.
8
Mubarak attached to his summary judgment response Section 7.2.4 of the TxDOT
Contract, his deposition, Weiser’s deposition, and the police report from the
accident.

7
conclusively that at the time of Mubarak’s alleged injuries, Webber was in

compliance with Section 4.8.1. of the TxDOT Contract, stating:

At no point during the I-10 Project did TxDOT or its representatives
inform Webber that the use of rebar violated the I-10 Project
requirements or specifications. Stated otherwise, TxDOT did not
inform Webber that it was out of compliance with the construction
contract by using rebar during the wet curing process.

Webber argued Mubarak had proffered no evidence establishing it was out of

compliance with the TxDOT Contract or raising an issue of material fact precluding

summary judgment. Last, Webber argued that Section 7.2.4 of the TxDOT

Contract, a “generic safety provision included in every TxDOT contract,” was

irrelevant because Section 97.002 refers to contract documents that are “material to

the condition or defect that was the proximate cause of the [alleged] personal

injury” and Section 7.2.4 “did not create the situation where rebar could potentially

fly off an overpass.”

During the summary judgment hearing, the trial court ruled on Mubarak’s

objections to Webber’s summary judgment evidence, sustaining Mubarak’s

objection to one paragraph in Weiser’s declaration and to the meteorologist report

that discussed the wind speed on the day of the accident and “how this [accident]

8
could have happened.”9 Following the hearing, the trial court signed an order

denying Webber’s traditional and no-evidence motion for summary judgment.

This interlocutory appeal ensued.

Standard of Review

We review a trial court’s ruling on a motion for summary judgment de novo.

Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018);

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). In our review, “we take as true all evidence favorable to the nonmovant, and

we indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing

Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)).

The party moving for traditional summary judgment bears the burden of

establishing that no genuine issue of material fact exists and that it is entitled to

9
The trial court sustained Mubarak’s objection to paragraph 8 of Weiser’s
declaration, where Weiser discusses the “unexpected wind gust that had not been
forecasted for the area,” which “reached 35 miles per hour,” and which allegedly
“caused the rebar to be thrown into the air from the Chew Road overpass.”
Paragraph 8 concludes with Weiser’s statement that “[t]his type of incident had
never been encountered by Webber before or after the incident involving
Mubarak.” Weiser presented this evidence and the meteorologist report
presumably to establish it lacked “actual knowledge that a condition on its project
created an unreasonable risk of harm” as it argued in its no-evidence summary
judgment—an issue we do not address in this opinion. The wind speed on the day
of the accident or the reasons the rebar flew from the overpass are not relevant to
our immunity analysis. We thus need not address whether the trial court erred in
sustaining the objections to Weiser’s declaration paragraph 8 or the meteorologist
report addressing wind speeds.

9
judgment as a matter of law. Mann, 289 S.W.3d at 848 (citing TEX. R. CIV. P.

166a(c)). A party who moves for traditional summary judgment on an affirmative

defense, such as immunity from liability, must conclusively establish each element

of its defense. See Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex.

2021); Zimmerman v. Anaya, No. 01-07-00570-CV, 2011 WL 1234685, at *2 (Tex.

App.—Houston [1st Dist.] Mar. 31, 2011, pet. denied) (mem. op.) (citing Sci.

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). Evidence is

conclusive only if “reasonable people could not differ in their conclusions.” Helix

Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017) (citing City of

Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)). Once the movant establishes

its right to summary judgment as a matter of law, the burden shifts to the non-

movant to present evidence raising a genuine issue of material fact precluding

summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018);

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Morgan v. City of

Alvin, 175 S.W.3d 408, 413 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

Evidence raises a genuine issue of material fact if reasonable jurors could differ in

their conclusions in light of all of the summary judgment evidence. Goodyear Tire

& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Townsend v. Hindes,

619 S.W.3d 763, 770 (Tex. App.—San Antonio 2020, no pet.).

10
Discussion

In its sole issue on appeal, Webber argues it is entitled to immunity under

Section 97.002 of the Texas Civil Practice and Remedies Code because its summary

judgment evidence conclusively established it contracted with TxDOT to build a

highway and that at the time of the accident, it was in compliance with the contract

documents material to the condition that was the proximate cause of Mubarak’s

alleged injuries. Specifically, Webber argues it was in compliance with the contract

specifications for Concrete Pavement (Item 360) and Concrete Superstructures

(Item 422), which set forth the wet curing process contractors must follow when

pouring fresh concrete on “superstructures” such as the Chew Road overpass.

Mubarak concedes that a TxDOT contractor performing construction on

behalf of the state may not be held liable for damage or injury resulting from work

performed in compliance with contract documents set by the State. Indeed, it is

well-settled that when a TxDOT contractor is in compliance with the contract

documents material to the condition that was the proximate cause of an injury,

Section 97.002 affords the contractor immunity from liability for any injury

resulting from the performance of the construction or repair. See TEX. CIV. PRAC. &

REM. CODE § 97.002; see also Brown v. RK Hall Constr., LTD., 500 S.W.3d 509,

511 (Tex. App.—Texarkana 2016, pet. denied) (holding contractors were entitled to

immunity under Section 97.002 because they “conclusively established their

11
compliance with material portions of the TxDOT plan”); ISI Contracting, Inc. v.

Markham, 647 S.W.3d 489, 502 (Tex. App.—San Antonio 2022, pet. denied)

(same).

The parties agree that at all relevant times, Webber was a TxDOT contractor

responsible for construction of the Chew Road overpass from where the rebar fell.

Thus, the only question before us is whether at the time of the alleged accident

giving rise to Mubarak’s alleged personal injury and property damage, Webber was

in “compliance with contract documents material to the condition or defect that was

the proximate cause of [Mubarak’s alleged] personal injury [and] property

damage.” See TEX. CIV. PRAC. & REM. CODE § 97.002. The contract documents

must be “material to the condition or defect that was the proximate cause of the

personal injury” for immunity to attach under Section 97.002. Brown, 500 S.W.3d

at 514.10

10
Both parties cite to the bill analysis for Section 97.002, which states that a
contractor performing highway repairs on behalf of the state “may not be held
liable for damage or injury resulting from work performed in substantial
compliance with contract documents set by the state.” See House Comm. on Civ.
Practices, Bill Analysis, Tex. H.B. 1699, 78th Leg., R.S. (2003) (emphasis added).
The bill analysis is not relevant to our review. First, as the Texas Supreme Court
has said, “[l]egislative history is generally useless to courts—indeed, it can be
worse than useless because it is manipulable and relies on what never was the law.”
Brown v. City of Houston, 660 S.W.3d 749, 755 (Tex. 2023) (emphasis in
original). Second, the bill analysis, which references the language “in substantial
compliance with,” predates the final version of Section 97.002, which deleted the
language “in substantial compliance with” and states only “in compliance with.”
See TEX. CIV. PRAC. & REM. CODE § 97.002. And last, we need not delve into that
distinction here because the parties have not raised the issue, instead agreeing that
12
Murabak advances several arguments to support his position that Webber is

not entitled to immunity under Section 97.002. While Mubarak concedes “that the

material [contract] documents are Items 360 and 422, which are concerned with

insuring that Webber properly cures freshly poured concrete,” he argues that

Webber is not entitled to immunity because those contractual provisions are not

“material to the condition or defect that was the proximate cause of the personal

injury [and] property damage” sought by Mubarak. According to Mubarak, the

relevant “condition or defect” was Webber’s unilateral decision to use rebar.

Mubarak argues that Items 360 and 422 do not require Webber to use rebar to

weigh down the cotton mats and plastic for the wet curing process. Rather,

Webber’s decision to use rebar to weigh down the mats and plastic was a judgment

call made by Webber and such unilateral decision-making does not give rise to

immunity. Mubarak argues that the Legislature enacted Section 97.002 to shield

contractors who construct or repair highways for TxDOT from liability only “in

situations where it is affirmatively shown that the contractors complied with

TxDOT specifications over which they had no control.” Mubarak also argues that

Webber breached the TxDOT Contract because the contract required “something

sufficiently heavy ‘so that air cannot get under the plastic’ or ‘under the mats,’” and

“the use of rebar was not sufficient to accomplish the requirement of the contract

“substantial compliance” is the standard, and whether the statute requires
“substantial compliance” or not, we reach the same result.

13
that air not get under the plastic and mats” as evidenced by the fact rebar flew off

the Chew Road overpass.11

For the reasons set forth below, we reject Mubarak’s arguments and conclude

Webber is entitled to immunity under Section 97.002.

Compliance with Contract Documents

In arguing it complied with the TxDOT Contract, Webber relies on its

summary judgment evidence establishing Webber followed the required wet curing

process and that the use of rebar during the wet curing process is the “industry

standard.” Weiser testified in his deposition that in the week prior to the accident,

Webber:

had poured the Chew bridge deck. And in doing so, as part of our
specification and practice that we have to do a wet cure on the bridge
deck using cotton blankets and plastic.

11
Mubarak does not re-urge on appeal the argument he advanced in his summary
judgment response that Mubarak failed to comply with Section 7.2.4 of the TxDOT
Contract concerning “Public Safety and Convenience,” which contained a general
instruction to “[m]aintain the roadway in a good and passable condition.” Webber
argues in its reply brief that “by his omission on appeal, Mubarak concedes that the
generic provisions in Section 7.2.4 of the TxDOT Contract are immaterial to the
condition at issue in this case.” Whether or not Mubarak conceded this point “by
omission” in his appellate brief, we agree with Webber that Section 7.2.4 of the
TxDOT contract is not the material provision relevant to our immunity analysis
because the provision is not “material to the condition or defect that was the
proximate cause” of Mubarak’s alleged personal injury and property damage. See
TEX. CIV. PRAC. & REM. CODE § 97.002; see also A.S. Horner, Inc. v. Navarrette,
656 S.W.3d 717, 725 (Tex. App.—El Paso 2022, no pet.) (stating contract
documents to be considered in immunity analysis must be “relevant to the
condition or defect a plaintiff alleges as a cause of the claimed injury”).

14
So in that process, you lay out the cotton blankets and plastic the day
of the concrete pour, and you have to cure it for 10 days. And during
that curing process, it has to be weighted down to maintain complete
contract with the concrete that’s being cured.

So rebar is used as weights on the bridge deck to secure the plastic
and cotton blankets that are used for the curing. So that rebar was on
the bridge deck acting as a weight to the blankets in the curing
process.

...

There is no document that dictates the pattern for the rebar. The
[TxDOT Contract documents] require that the plastic maintain contact
with the concrete during the cure. And so, to do that rebar—the
industry standard is to use rebar and lay it out to maintain that contact.
To maintain a light pressure.

It’s fresh concrete that’s been poured. So you can’t use anything
significantly heavier then rebar. It’s the perfect thing to use to weight
down the plastic and the mats. And that’s what we’ve always done.
That’s the only procedure that I’m aware of to keep the plastic in
place and weigh it down evenly.

Weiser also testified that Webber’s “practice and the industry standard is to use

rebar [be]cause it’s readily available construction material that can be easily

managed on top of wet concrete[.]” He testified that the use of rebar “has served

Webber for many, many years and been very successful” and that this was the first

instance of rebar “falling from an overpass and causing damage.” Webber also

relied on Weiser’s declaration, in which he testified that:

TxDOT representatives were present on the I-10 Project on a nearly
daily basis. . . . At no point during the I-10 Project did TxDOT or its
representatives inform Webber that the use of rebar to weigh down

15
cotton blankets during the wet curing process was contrary to or
violated the I-10 Project requirements or specifications.

Mubarak presented no evidence to refute Weiser’s testimony that the use of

rebar to weigh down mats and plastic during the wet curing process is industry

standard or his testimony that TxDOT representatives were present on the I-10

project on a “nearly daily basis” and never informed Webber that the use of rebar

during this process was out of compliance with the TxDOT Contract. Mubarak

nonetheless argues that because the TxDOT Contract did not expressly state that

Webber could use rebar to weigh down the mats and plastic during the wet curing

process, Webber’s use of rebar could not have been “in compliance” with the

contract documents material to the condition or defect that was the proximate cause

of his personal injury and property damage. He argues that because Webber had

discretion to select the materials used to weigh down the mats and plastic, its use of

rebar cannot establish compliance with the TxDOT Contract. We find this

argument unpersuasive.

The TxDOT specifications neither specify nor proscribe the use of rebar for

the wet curing process. Rather, the specifications require the use of wet curing

when pouring fresh concrete on superstructures such as an overpass. Pursuant to

Items 360 and 422, on the day the concrete is poured, cotton blankets are laid atop

the poured concrete, wetted down, and then covered in plastic. And germane to the

issue here, the blankets and plastic must be weighted down to allow the blankets to
16
remain in continuous contact with the fresh concrete during a ten-day period.

Webber presented evidence that it complied with this required procedure by using

rebar to weigh down the blankets and plastic, which the uncontested evidence

established is the industry standard.

Mubarak insists that because Webber’s decision to use rebar was

discretionary, immunity cannot attach. Relying on ISI Contracting, Inc. v.

Markham, he argues that Section 97.002 is intended to shield contractors who

construct or repair highways for TxDOT from liability purportedly only “in

situations where it is affirmatively shown that the contractors complied with

TxDOT specifications over which they had no control.” 647 S.W.3d at 496; see

also A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717, 726 (Tex. App.—El Paso

2022, no pet.) (same). Mubarak argues that because Webber had control over the

material it chose—rebar—to weigh down the cotton mats and blankets and ensure

proper curing of the concrete, Section 97.002 is inapplicable. According to

Mubarak, because Webber’s decision to use rebar was a “judgment call,” Webber is

not entitled to immunity, because the “condition or defect” that proximately caused

his injuries stemmed from Webber’s “unilateral decision to use rebar as a weight

even though rebar was not required by the contract documents.” We disagree.

Section 97.002 provides statutory immunity to a contractor “when the

contractor is in compliance with contract documents material to the condition or

17
defect that was the proximate cause of the personal injury [or] property damage.”

TEX. CIV. PRAC. & REM. CODE § 97.002. There is no language in Section 97.002

suggesting that immunity does not apply when the relevant contractual provision

affords the contractor some level of discretion in how to perform its contractual

duties. See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014)

(“We take statutes as we find them, presuming the Legislature included words that

it intended to include and omitted words it intended to omit.”). Taking Mubarak’s

argument to its logical conclusion, because no material is specified for use in the

TxDOT Contract to weigh down the mats and plastic, there could never be

immunity for injuries related to the weighing down process during the wet curing

process, regardless of the materials used.12 Such an interpretation is strained,

especially given that even evidence that additional safety precautions could have

been taken does not establish a failure to comply with contract documents for

purposes of Section 97.002. See Brown, 500 S.W.3d at 515 (“[T]estimony that

additional safety precautions could have been taken was not evidence that the

Contractors failed to comply with contract documents material to the condition or

defect that caused Brown’s injuries.”).

ISI Contracting also does not support Mubarak’s argument. In explaining

that contractors who construct or repair highways for TxDOT are shielded from
12
Weiser testified that he was not aware of Webber using any material other than
rebar to weigh down mats during the wet curing process on any project.

18
liability “in situations where it is affirmatively shown that the contractors complied

with TxDOT specifications over which they had no control,” the court did not

generally hold, as Mubarak suggests, that any exercise of discretion by a TxDOT

contractor in carrying out a contract requirement removes the contractor from the

purview of Section 97.002. Rather, the ISI Contracting court was merely clarifying

that Section 97.002 does not “provide blanket immunity to a TxDOT contractor or

subcontractor against all claims for any circumstances, such as a tort claim or

contract dispute between a TxDOT contractor and its subcontractors,” a statement

with which we do not disagree. See ISI Contracting, 647 S.W.3d at 496. In any

event, we need not decide whether discretionary acts in general inform an analysis

under Section 97.002, because here, contrary to Mubarak’s argument, the evidence

established that Webber was required to comply with the wet curing requirements

in the TxDOT Contract’s specifications and that Webber complied with that

requirement, because it had no discretion not to.

The evidence further established that Webber used rebar, the industry

standard, to weigh down the cotton mats and plastic during the wet curing process

and that TxDOT representatives visited the project on an almost daily basis and did

not inform Webber it was out of compliance with the contract. Webber argues this

evidence conclusively established its compliance with the TxDOT Contract.

Webber relies on Brown v. RK Hall Construction, where the court held that TxDOT

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contractors, having never been informed of noncompliance with a contract by the

construction project owner despite numerous inspections by TxDOT, were entitled

to immunity under Section 97.002. 500 S.W.3d at 512, 515. We agree that Brown

is instructive.

In Brown, the plaintiff (“Brown”) drove into a construction zone immediately

after midnight, colliding with a piece of construction machinery resulting in serious

injuries. Id. at 510. Law enforcement reported that Brown disregarded a warning

sign, driving into a barricaded construction zone, but Brown argued that the

barricades were in the middle of the highway and did not indicate which lane was

closed. Id. Brown sued the TxDOT contractors alleging they failed to create and

implement a safe traffic control plan. Id. The contractors argued they complied

with the material portions of TxDOT’s traffic control plan for the construction

project. Id. at 511. An employee of the contractors “testified that the Contractors

were never informed that any traffic control device was out of place, even though

TxDOT inspected the construction site on a daily basis.” Id. at 512. A TxDOT

inspector also testified that he inspected the construction site before leaving for the

day in the hours before the accident and that “everything was in its proper place”

before the accident. Id. The trial court granted summary judgment in favor of the

contractors on immunity grounds and the court of appeals affirmed. The court

concluded that Brown’s expert, who opined the contractors had not complied with

20
certain portions of TxDOT’s construction plan unrelated to the accident, provided

no evidence that the contractors had not complied with contract documents

“material to the condition or defect” that caused Brown’s injuries. Id. at 513–14.13

We find Brown persuasive. Although Webber did not proffer testimony from

any TxDOT officials, Webber established through Weiser’s uncontroverted

testimony that the use of rebar for weighing down mats and plastic during the wet

curing process is industry standard and that TxDOT representatives inspected the

construction project “on a nearly daily basis” and never advised Webber that the use

of rebar in the curing process “was contrary to or violated the I-10 Project

requirements or specifications.” Mubarak offered no evidence to the contrary. We

thus conclude that Webber conclusively established compliance with the TxDOT

contract documents material to the condition that was the proximate cause of

Mubarak’s alleged injuries entitling it to immunity under Section 97.002. See id.;

see also ISI Contracting, 647 S.W.3d at 502 (reversing denial of summary judgment

motion based on Section 97.002, holding summary judgment conclusively

13
Brown’s expert testified that the construction site revealed a lack of certain types of
barricades on the “west terminus” of the construction project, but Brown’s accident
occurred “well in front of the west terminus of the construction zone.” Brown v.
RK Hall Constr., LTD., 500 S.W.3d 509, 514 (Tex. App.—Texarkana 2016, pet.
denied). Thus, the court held, the expert’s opinion that the contractors “failed to
comply with the portion of the Plan allegedly requiring a Type III barrier at the
west terminus of the project constituted no evidence that the Contractors failed to
comply with contract documents ‘material to the condition or defect’ that caused
Brown’s injuries.” Id.

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established that TxDOT engineer’s approval and acceptance of work “determine[d]

as a matter of law that [appellants] 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’”).

Mubarak’s Claim of Breach

Mubarak last argues that Webber is not immune under Section 97.002

because it breached its contract with TxDOT. He argues that Item 422 requires

Webber “in paragraph 4.8.2 to ‘[o]verlap plastic sheeting and weight down

sufficiently so air cannot get under the plastic,’ and 4.8.3 instructs Webber to

‘[o]verlap the mats and weight down sufficiently so air cannot get under the mats.’”

Because rebar flew off the Chew Road overpass and struck his truck, Mubarak

argues Webber breached the TxDOT Contract “by not having sufficient weight to

prevent air from getting under the plastic and mats and thereby causing the rebar to

blow off.”

Mubarak argued in his summary judgment response that Webber breached

Item 422 because its provisions required that an enclosure be used to prevent air

from entering, which Webber failed to implement because wind apparently lifted

the mats, projecting the rebar. But Item 422 paragraph 4.8.1 contains a provision

stating, “[c]over surfaces that cannot be cured by direct contact with mats, forming

an enclosure well anchored to the forms or ground so outside air cannot enter the

22
enclosure.” Mubarak provided no evidence that any relevant surface could not be

cured by direct contact with the mats. Moreover, the provision required that an

enclosure be anchored so that air could not enter, which would affect the concrete

curing process; the provision does not require that edges of the mats be secured to

prevent strong wind gusts from moving the mats. Thus, a contractor could comply

with this provision by using anchoring that prevented air from entering but that did

not prevent wind gusts from moving the mats. Accordingly, Mubarak did not create

a fact issue on whether this provision was applicable or breached.

Mubarak also appears to conflate breach of a contract with potential tort

liability arising from the way in which a contract is performed. Even if Webber had

been negligent in selecting rebar or in the way in which it used the rebar to weigh

down the mats and plastic—a matter we do not decide—that does not establish

Webber failed to comply with the contract “documents material to the condition or

defect that was the proximate case” of Mubarak’s alleged personal injury or

property damage. “Whether a contractor was in compliance [with contract

documents] does not hinge on whether the plaintiff’s allegation that the contractor

owed the plaintiff a duty is true.” See Austin Materials, LLC v. Rosado, No. 03-22-

00201-CV, 2023 WL 3666107, at *3 (Tex. App.—Austin May 26, 2023, pet.

denied) (mem. op.) (citing ISI Contracting, 647 S.W.3d at 502–03) (holding

immunity defense applied because “contractors had complied with the contract

23
documents material to the alleged proximate cause of the personal injury and

death”) (emphasis in original); see also Brown, 500 S.W.3d at 515 (holding that

evidence that additional safety precautions could have been taken is not evidence

that contractors failed to comply with contract documents material to condition or

defect that caused plaintiff’s injuries).

We conclude that Webber conclusively established that at the time of the

incident, it was in compliance with the contract documents material to the condition

or defect that was the proximate cause of Mubarak’s alleged injuries, and Mubarak

failed to raise a genuine issue of material fact precluding summary judgment.14

We sustain Webber’s sole issue.

Conclusion

We reverse the trial court’s order denying Webber’s motion for summary

judgment and render judgment dismissing Mubarak’s claims against Webber.

14
Compare with Bennett Truck Transp., LLC v. Williams Bros. Const., 256 S.W.3d
730, 732–33 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding question of
material fact as to applicability of Section 97.002 existed when contractor’s
manager testified that while he could not recall any missing traffic signs, he could
not testify required signage was present “at the exact date and time” of accident);
Haydon Bldg. Corp. v. Green, No. 08-23-00073-CV, 2024 WL 3611000, at *6
(Tex. App.—El Paso July 31, 2024, pet. filed) (mem. op.) (holding genuine issue of
material fact as to applicability of Section 97.002 existed regarding whether traffic
control barriers remained in compliance with traffic plan at time of construction
worker’s death).

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Veronica Rivas-Molloy
Justice

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10819435. Public record. Not legal advice.