In A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717,
719 (Tx. App. 2022), a Texas Court of Appeals found a road contractor was
entitled to statutory immunity for a personal injury suit after the completion
of the project, as it built the road in compliance with the Texas Department of
Transportation’s (“TxDOT”) design. In an
issue of first impression, the Court held immunity was not limited only to
ongoing construction, but also applied to accidents occurring after completion.
A.S. Horner, Inc. (“Horner”) was hired to construct an
overpass in compliance with TxDOT specifications. Seven weeks after the project
was completed, Rafael Navarrette (“Mr. Navarrette”), a firefighter-paramedic,
fell through a three-to-four foot opening in the overpass railing while on-duty
responding to a multi-vehicle crash. Mr.
Navarette sued Horner, TxDOT and the County of El Paso, asserting claims against
Horner pursuant to premises liability based on a dangerous condition on the
road and, alternatively, based on theories of negligence.
Horner filed a motion for summary judgment, arguing it was
statutorily immune from the personal injury suit and Mr. Navarrette’s claims
against it were barred based on Tex. Civ. Prac. & Rem. Code Ann.
§97.002, which provides:
"A contractor who constructs or repairs a highway, road, or street for [TxDOT] 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.
Mr. Navarette did not dispute Horner was a contractor for TxDOT
nor did he dispute Horner’s construction complied with the TxDOT contract documents. Rather, Mr. Navarette argued § 97.002 was
inapplicable because his injuries did not “arise from the performance of the
construction or repair,” since the project was completed prior to the accident.
Mr. Navarette argued the statutory
immunity only protected contractors from claims for injuries sustained during
the construction process, not after completion.
The trial court agreed with Mr. Navarrette’s interpretation and denied
Horner’s motion for summary judgment.
Horner appealed and a divided Texas Court of Appeals
reversed the trial court’s decision, holding the statute applies equally to
personal injury claims arising out of completed TxDOT projects, so long as the
crucial elements of qualification are met. Although the statute uses the present tense
term “constructs,” the Court found “the Legislature’s use of the present tense .
. . is not a manifestation of intent for the statute’s protection from
liability to apply only in the context of ongoing construction.”
(emphasis in original).
Contractors should be aware of the exact wording of any state-specific statutory immunity provisions relevant to their work for governmental entities. Understanding the exact language, and any timeline for liability the statute may impart, is critical to knowing whether and when liability can flow from work done in accordance with governmental issued specifications.
