Texas Dept. of Transp. v. Fontenot, 09-04-038 CV.

• Decision Date: 16 December 2004
• Docket Number: No. 09-04-038 CV.,09-04-038 CV.
• Citation: 151 S.W.3d 753
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION and Deavers, Inc., Appellants, v. Brenda L. FONTENOT, Individually and on Behalf of the Estate of Joseph Curry Fontenot, Deceased, Jason Fontenot, Micah Fontenot, and Robert Fontenot, Appellees.
• Court: Texas Court of Appeals

151 S.W.3d 753

TEXAS DEPARTMENT OF TRANSPORTATION and Deavers, Inc., Appellants, v. Brenda L. FONTENOT, Individually and on Behalf of the Estate of Joseph Curry Fontenot, Deceased, Jason Fontenot, Micah Fontenot, and Robert Fontenot, Appellees.

No. 09-04-038 CV.

Court of Appeals of Texas, Beaumont.

Submitted September 23, 2004.

Decided December 16, 2004.

Greg Abbott, Atty. General, Susan Desmarais Bonnen, Ronald E. Garner, Asst. Attys General, Austin, Kathleen M. Kennedy, Benckenstein, Norvell & Nathan, LLP, Beaumont, for appellants.

Rex Peveto, Peveto Law Firm, Orange, for appellee.

Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.

OPINION

STEVE McKEITHEN, Chief Justice.

The survivors of a motorist killed in a single vehicle automobile accident alleged that the injuries were caused by the failure of a highway contractor and the state highway department to warn motorists of water on the road following a rainstorm. Finding in favor of Brenda L. Fontenot, individually and on behalf of the Estate of Joseph Curry Fontenot, Jason Fontenot, Micah Fontenot, and Robert Fontenot ("Fontenot"), the jury apportioned negligence 55% to the Texas Department of Transportation ("TxDOT"), 30% to Deavers, Inc. ("Deavers"), and 15% to the deceased motorist. Nine issues are raised in this appeal.

A hard rain preceded the misting rain present when the accident occurred. A puddle of water stretched across both eastbound lanes near Milepost 879 of Interstate 10. Joseph Curry Fontenot was traveling east when his vehicle encountered the water in the highway. He lost control of the vehicle, which struck the concrete median, then jumped the guardrail on the right shoulder, flipped, and struck a tree. The appellees alleged that the water constituted a premises defect and a special defect for which TxDOT, as the State entity maintaining roads, was responsible. They also alleged that Deavers had a duty to place warning signs in the area where the accident occurred, and had failed to warn the traveling public of the water on the road.

In its first issue, Deavers contends it owed Fontenot no duty as a matter of law; therefore, it was error for the trial court to submit the issue of negligence to the jury, and error to overrule Deavers' motions for directed verdict and for judgment notwithstanding the verdict. Deavers does not dispute that it owed a duty to motorists traveling in its actual work zone; however, the accident occurred in the "advanced warning zone," the area of the highway designed to slow the traffic down before the actual construction site. Deavers claims that its only duty in the advanced warning zone was to give motorists advance warning of the construction zone ahead, and that it had no duty to warn of dangers it did not create.

Deavers' construction superintendent, Charles B. White, testified about the construction site and the contract between Deavers and TxDOT. Deavers built the Interstate 10 bridge over the Sabine River. White was responsible for the traffic control plan required by the construction contract. The accident occurred in the advanced warning zone. This area commenced near Milepost 878. The accident occurred in a 55 mile per hour zone at least 1,000 feet before the right shoulder closed as the road narrowed on the approach to the bridge. The transition zone, where Deavers reduced the number of traffic lanes, was located further up the road. The construction project did not include any highway repair or maintenance near Milepost 879.

The Fontenots contend Deavers assumed responsibility for warning the public of road hazards near Milepost 879. Deavers placed signs in the area, as required by its contract. Before reaching Milepost 879, Fontenot passed three signs erected by Deavers that notified the public that the area was a work zone. Under the Transportation Code, "Construction or maintenance work zone" means a portion of a highway or street where highway construction or maintenance is being undertaken, other than mobile operations as defined by the Texas Manual on Uniform Traffic Control Devices, and that is marked by signs indicating that it is a construction or maintenance work zone. See Tex. Transp. Code Ann. § 472.022(e)(2) (Vernon Supp.2004). The Fontenots argue that, because the area was a work zone, the construction contract required Deavers to place a "Watch for Water on Road" sign in areas where wet weather conditions normally result in a temporary condition of ponding or flowing water on the roadway.

The Fontenots rely on Item 502 of the contract, the first paragraph of which provides as follows:

The signs, barricades and markings shown on these drawings constitute minimum requirements and are not intended to cover special circumstances or other conditions that may arise due to unforseen field conditions. The contractor shall place and maintain sufficient additional signs, barricades and warning devices to warn the public and provide for the safe movement of both vehicular and pedestrian traffic. At any time during the execution of this project, if other traffic control devices are deemed necessary to control and provide safety for project personnel and the traveling public, the contractor shall provide these additional traffic control devices as approved and/or directed by the engineer. These shall conform to TxDOT standards and the "Texas Manual of Uniform Traffic Control Devices for Streets and Highways", 1980 Edition. Additional work will not be paid for directly, but will be subsidiary to Bid Item 502.

Item 502 was modified by the following Special Provision:

For this project, Item 502, "Barricades, Signs, and Traffic Handling", of the Standard Specifications, is hereby amended with respect to the clauses cited below and no other clauses or requirements for this Item are waived or changed hereby.

Article 502.2. Construction Methods The first paragraph is voided and replaced by the following:

All barricades, signs and other types of devices listed above shall conform to the requirements of the plans, the Texas Manual on Uniform Traffic Control Devices (TMUTCD) and the Compliant Work Zone Traffic Control Devices (CWZTCD) list. In cases of disagreement between these documents, the CWZTCD list shall govern over plans, and the TMUTCD shall govern over both the CWZTCD list and plans.

The contract's General Notes and Specification Data included the following:

The existing roadway within the limits of the project will be maintained by the contractor in a manner that is acceptable to the engineer. This work will not be paid for directly, but shall be considered subsidiary to the various bid items.

State forces will maintain the existing section of highway and its appurtenances not a part of this project, except for those sections damaged by the contractor's forces. The contractor shall be required to furnish materials and make repairs to these sections that might be damaged by construction operations. This work shall be done in a manner satisfactory to the Department, and shall not be paid for directly but shall be considered subsidiary to the various bid items.

....

The contractor shall maintain adequate drainage throughout the limits of the project during all construction phases.

The plan sheets contained in the contract included the following statement:

The contractor shall provide and erect barricades and construction signs in accordance with BC (1-9C) — 98 (M) and the Texas Manual on Uniform Traffic Control Devices at points as shown on plan sheets and as directed by the engineer.

Standard Specifications incorporated into the contract by reference stated, in part:

The safety of the public and the convenience of traffic shall be regarded as of prime importance. Unless otherwise shown on plans or except as herein provided, all portions of the highway shall be kept open to traffic. It shall be the entire responsibility of the Contractor to provide for traffic along and across the highway, as well as for ingress and egress to adjacent property, in accordance with the traffic control plan and detours as shown on the plans and in the specifications for the project or as directed/approved by the Engineer.

The Contractor shall plan and execute his operations in a manner that will cause the minimum interference with traffic. The Contractor shall secure the Engineer's approval of his proposed plan of operation and sequence of work. If at any time during construction the approved plan does not accomplish the intended purpose due to weather or other conditions affecting the safe handling of traffic, the Contractor shall immediately make necessary changes as directed/approved by the Engineer therein to correct the unsatisfactory conditions.

....

The Contractor shall have the sole responsibility for providing, installing, moving, replacing, maintaining, cleaning and removing upon completion of work all barricades, warning signs, barriers, cones, lights, signals and other such type devices and of handling traffic as shown on the plans or as directed/approved by the Engineer. All barricades, warning signs, barriers, cones, lights, signals and other such type devices shall conform to details shown on the plans or those indicated in the TMUTCD.

The Contractor may provide special signs not covered by he plans to protect the traveling public against special conditions or hazards, provided, however, that such signs are first approved by the Engineer.

It is apparent from the language cited that Deavers' duties are to warn motorists of danger and to maintain the roadway extended to the limits of the project, not beyond it. The duty to place warning signs at intervals commencing with Milepost 878 arose from the traffic control plan. Nothing within the contract required Deavers to either maintain the roadway or warn the public of hazards located outside of the limits of the project unless Deavers caused the condition. According to the first page of the contract, the project began at...