Corporation-South v. Hinojosa

• Decision Date: 26 August 2014
• Docket Number: No. 01–12–00862–CV.,01–12–00862–CV.
• Citation: 438 S.W.3d 625
• Parties: KNIFE RIVER CORPORATION–SOUTH, Appellant v. Esmeralda HINOJOSA, Individually and as Representative of the Estate of Andres Hinojosa, Deceased, and as Next Friend on Behalf of Melissa Hinojosa, Vanessa Hinojosa, Andrea Hinojosa, and Andres Hinojosa, Jr., Appellee.
• Court: Texas Court of Appeals

438 S.W.3d 625

KNIFE RIVER CORPORATION–SOUTH, Appellant

v.Esmeralda HINOJOSA, Individually and as Representative of the Estate of Andres Hinojosa, Deceased, and as Next Friend on Behalf of Melissa Hinojosa, Vanessa Hinojosa, Andrea Hinojosa, and Andres Hinojosa, Jr., Appellee.

No. 01–12–00862–CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 13, 2014.

Rehearing En Banc Overruled Aug. 26, 2014.

Rebecca E. Bell, Fee, Smith, Sharp & Vitullo, L.L.P., Dallas, TX, for Appellant.

Paul W. Murphy, Burgain G. Hayes, Clint F. Sare, Hayes, Murphy & Brown, LLP, College Station, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

LAURA CARTER HIGLEY, Justice.

In this wrongful death and survivor suit, Knife River Corporation–South appeals a judgment rendered against it in favor of Esmeralda Hinojosa, Individually and as Representative of the Estate Of Andres Hinojosa, Deceased, and as Next Friend on Behalf of Melissa Hinojosa, Vanessa Hinojosa, Andrea Hinojosa, and Andres Hinojosa, Jr. Knife River raises three issues on appeal, which include its assertion that the trial court erred by denying its directed verdict on the plaintiff's negligent-undertaking claim.

We reverse and render.

Background Summary

On August 30, 2010, Andres Hinojosa was driving his tractor-trailer, loaded with gravel, on Highway 105 in Washington County, when his vehicle overturned. Hinojosa told emergency personnel at the scene that the accident was precipitated by his driving onto the paved shoulder of the road to avoid a head on collision with a vehicle that had crossed over into his lane. Hinojosa was taken to the hospital, where he died from his injuries.

A reconstruction of the accident showed that Hinojosa had been in control of his vehicle until he had reached a location in the highway where there is a concrete box culvert running under the road. At that location, the improved shoulder of the road narrows from 10 feet to 6.3 feet. On the roadway above the culvert, where the pavement of the shoulder ends, the ground sloped dramatically at a 45 degree angle, creating a drop off. The drop off was 1.8 feet to the left of, and 1.7 feet above, the culvert headwall. Tall vegetation grew along the shoulder's edge, camouflaging the precipitous slope.

Reconstruction of the accident also revealed that, as he drove along the paved shoulder, Hinojosa's right front tire had fallen into the drop off. This caused the rear of his vehicle to fall to the right and the front of the vehicle to turn to the left. When the tires regained the pavement, Hinojosa's vehicle was turning sharply to the left, resulting in a rollover of the tractor-trailer.

The Texas Department of Transportation (“TxDOT”) had, at some point before the accident, placed an “object marker” on the side of the road to mark the headwall of the culvert. An object marker is a yellow and black striped sign intended to warn a motorist that there is a hazard to the right of the sign and to indicate to the motorist that he should drive to the left of the sign to avoid the hazard. The state trooper who investigated Hinojosa's accident would later testify that the drop off, into which Hinojosa's right front tire fell, was to the left of the object marker. Thus, a driver could stay to the left of the object marker and nonetheless drive off the drop off.

The section of Highway 105 where Hinojosa's accident occurred had last been repaved in 2005. In 2004, TxDOT had hired Knife River Corporation–South (“Knife River”) to resurface a 4.5 mile section of Highway 105. The location on Highway 105 where Hinojosa's accident would later occur was within this 4.5 mile section.

Knife River and TxDOT signed a contract regarding the resurfacing project. Incorporated into the contract were TxDOT's final project plans. The plans indicated that the project was “for the construction of asphalt concrete pavement overlay consisting of one course surface treatments and pavement markings [and] markers.”

The plans also provided the following: “No edge drop offs exceeding 3:1 shall be left exposed to traffic. Backfilling these areas shall be considered incidental to the various forms of work.” Backfilling referred to the part of the road construction project occurring after the new layer of asphalt had been laid, in which material—in this case recycled, ground asphalt—was placed along the newly paved edges of the road to create a gradual slope, or transition. The three-to-one ratio related to the slope of the road. For every three feet of horizontal distance, the drop in the slope of the road would be no more than one foot of vertical distance. This was to ensure a gentle slope from the traveled portion of the roadway to the unimproved portion of the shoulder.

On the front page of the project plans, three stand-alone phrases were listed in the center of the bottom of the page. These phrases were “No Exceptions,” “No Railroads,” and “No Equations.”

The project plans also expressly incorporated specifications adopted by TxDOT. These specifications were contained in the publication “Standard Specifications for Construction and Maintenance of Highways, Streets and Bridges,” published by TxDOT. Section 4.3 of the specifications indicated that a contractor, such as Knife River, should give written notice to the TxDOT engineer managing the project when the contractor encountered differing or latent conditions not addressed by the project plans. After receiving written notice, the TxDOT engineer would then investigate and determine whether cost adjustments should be made for the project.

Knife River began the resurfacing project on April 14, 2005. On May 3, 2005, Joe Sustaita, Knife River's asphalt plant manager, made a notation in the project's work diary. The notation read, in part: “There are some safety issues on the box culvert sections which really need to be fixed. The shoulder drops right off the edge along these box culverts. The [S]tate needs to get a change order to extend the boxes further or put up guard rail on these sections.”

Raymond Vasquez, the Knife River employee in charge of the work site, made a notation in the work diary the following day, May 4, 2005. The notation pertains to the section of the highway where Hinojosa would have his accident five years later. Vasquez wrote, “We had to put [vertical panels] on the shoulder where it was deep and also where the shoulder is narrow and has a straight drop off and is very dangerous[.] I told the [TxDOT inspector] about getting a change order and fix the problem on the shoulder by extending [the] box culverts.” Vasquez would later testify that he had verbally informed the on-site TxDOT inspector about the drop off existing in the area of the culvert. Vasquez also testified that he had not sent written notice to the TxDOT engineer regarding the drop off.

When Knife River finished the resurfacing project in August 2005, the drop off remained. A TxDOT engineer inspected Knife River's work by driving the 4.5 mile stretch that had been resurfaced. The engineer approved and accepted the work performed by Knife River. Hinojosa's fatal accident occurred five years later.

Hinojosa's wife, Esmeralda, filed suit against Knife River, in her individual capacity, as representative of the Estate of Andres Hinojosa, and as next friend of the couple's four children. Mrs. Hinojosa, hereinafter “Appellee,” asserted survivor, wrongful death, and negligence claims. Knife River timely designated TxDOT as a responsible third party pursuant to section 33.004 of the Civil Practice and Remedies Code.¹

At the time of trial, Appellee's second amended petition was the live pleading. In the petition, Appellee alleged, “On entering a contract which it should have recognized as necessary to the protection of the public, Knife River [ ] had a duty to exercise reasonable care in the performance of that contract.” She claimed that Knife River's negligence included its failure to send written notice to TxDOT “clearly identifying the sheer edge drop off and conveying the degree of danger the defect presented....” Appellee asserted that Knife River should have sent written notice “identifying the need to extend the shoulder over the culvert and eliminate the danger or need to place a guardrail at the area of the sheer drop off in order to isolate traffic from the danger.” Appellee claimed that Knife River should have requested a “change order,” that is, permission from TxDOT to change the scope of the work that had been agreed upon to address the danger presented by the drop off.

Appellee proceeded to trial before a jury, asserting a theory of negligent undertaking against Knife River based on section 324A of the Restatement (Second) of Torts. Appellee claimed that Knife River had undertaken certain duties in the construction contract for the benefit of a third person, Andres Hinojosa. Appellee claimed that, based on the construction contract, Knife River (1) had undertaken a duty not to leave a drop off with a greater than three-to-one ratio and (2) had undertaken a duty to send written notification to TxDOT regarding the drop off. Appellee asserted that Knife River had not used reasonable care in performing these undertaken duties.

Among Appellee's trial exhibits was the construction contract between TxDOT and Knife River. The contract indicated that Knife River had been retained to lay a new layer of asphalt over the existing pavement and then to backfill along the road edges to achieve a 3:1 gradient. There is no dispute that a 3:1 gradient could not have been achieved at the drop off merely by backfilling the road's edge. Rather, the evidence at trial showed that the drop off could only be eliminated, and a 3:1 gradient achieved, by extending the concrete box culvert and then backfilling over it. The work required to extend the culvert was not within the scope of the work defined in the contract. Knife River had not been hired to extend the box...