According to a recent Supreme Court of Texas ruling, parents of a woman who drowned after her car missed a bridge can't sue the contractor who worked on and fixed the bridge.
According to setexasrecord.com, all nine Justices were in unison that Allen Keller Co. owed no duty to alter the design of the job or to warn the public of a hazardous condition. (WCxKit)
Justice Debra Lehrmann stated that any decision to rectify the condition would have had the effect of changing the terms of a contract. "Moreover, because Keller did not own the property, it was not in a position to make decisions about how to make the premises safe," Lehrmann wrote.
Gillespie County hired Keller for excavating an embankment and erecting a concrete channel next to a one lane bridge running across the Pedernales River.
The contract mandated Keller to adhere to specifications that O'Malley Engineers of San Antonio produced. O'Malley personnel visited the site from time to time, and a county representative appeared nearly every day.
"Prior to excavation, there was a space of approximately ten feet between the bridge and the embankment, most of which was spanned by a guardrail that was connected to the bridge," Lehrmann wrote.
"After Keller excavated a portion of the embankment to erect the pilot channel, as called for by the engineering plans, the gap between the end of the guardrail and the embankment was widened by at least ten feet."
"The contract specifications did not include extending the guardrail," she wrote.
Keller completed the job eight years ago, O'Malley certified it, and the county accepted it.
On a rainy night, a car slid out of control on a sharp curve heading down to the bridge. Passing through the gap between the guardrail and the embankment, the car plunged into the river.
The driver and a passenger escaped, but car owner Courtney Foreman was not as fortunate, drowning at the scene.
Parents Barbara Foreman and Steven Foreman sued the driver, Gillespie County, O'Malley Engineers, Keller, the city of Fredericksburg and the Texas Department of Transportation.
The Foremans settled with the driver, the county and the engineers, and they removed claims against the city and the state.
Keller moved for summary judgment and District Judge Stephen Ables granted it.
Fourth District appeals judges in San Antonio reversed Judge Ables, finding Keller was at fault in addressing whether it led to a dangerous condition.
They stated Keller could have foreseen the accident. The appellate justices held that completion and acceptance of the work didn't relieve Keller of a duty to protect the public, but the Supreme Court ruled otherwise.
"The presence of an unreasonably dangerous condition, of course, weighs in favor of recognizing a duty," Lehrmann wrote.
"The consequences of placing a duty on Keller to rectify the condition in these circumstances, however, lead us to conclude that Keller owed no such duty."
"Keller's contract with the county required absolute compliance with the contract specifications," she wrote.
She found evidence that deviation from the specifications could have resulted in no federal funding.
Lehrmann wrote that at oral argument, counsel for the Foreman’s argued Keller should have warned the county of the potential danger.
"We have never held that a contractor may owe a duty to warn a premises owner of a danger on the premises owner's own property," she wrote.
She wrote that the county knew the conditions at the location. (WCxKit)
"Keller was a contractor, not an engineer, and its work was certified by the engineer before it left the project site," she said in conclusion.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: [email protected]
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