Metropolitan Transit Authority of Harris County, Texas v. Augustine Cruz Melendez, A. Morfin Trucking LLC, and Trans-Global Solutions, Inc. ( 2023 )

Opinion issued June 1, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00434-CV
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METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
TEXAS, Appellant
V.
TRANS-GLOBAL SOLUTIONS, INC., Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2017-74242
MEMORANDUM OPINION
Appellant, Metropolitan Transit Authority of Harris County, Texas (“Metro”),
challenges the trial court’s rendition of summary judgment in favor of appellee,
Trans-Global Solutions, Inc. (“TGS”), in Metro’s suit against TGS for, among other
things, negligence, negligence per se, and gross negligence. In two issues, Metro
contends that the trial court erred in granting TGS summary judgment.
We affirm.
Background
In Metro’s sixth amended petition, it alleged that “[o]n August 31, 2016,
[Augustin Cruz] Melendez,” who was working for TGS’s subcontractor, A. Morfin
Trucking, LLC (“Morfin”), was driving “a dump truck southbound at the 4500
block” of Martin Luther King Jr. (“MLK”) Boulevard in Houston, Harris County,
Texas. When Melendez reached the intersection of MLK Boulevard and South
MacGregor Way, he “illegally ran a red light and attempted a prohibited U-turn.”
The dump truck “struck a [Metro] train, causing substantial damage” to the “train,
axel counter box and bar signal.”
Under the subcontract between TGS and Morfin (the “TGS-Morfin
subcontract”), Morfin had agreed to “furnish all labor, materials, equipment and
other facilities required to . . . [p]rovide [t]ruck units to haul off clay dirt” from the
“Brays Bayou Channel Modification” project to a designated landfill. The
TGS-Morfin subcontract required that the trucks used for the project “comply with
[Texas Department of Transportation (‘TXDOT’)] regulations, [as well as] Harris
County and [C]ity of Houston traffic regulations.” The TGS-Morfin subcontract
also required that the hauling work be “performed in accordance with the prime
2
contract” between TGS and the Harris County Flood Control Drainage District
(“HCFCD”) “and in accordance with all plans, specifications and other contract
documents attached to or incorporated into the prime contract.” And the
TGS-Morfin subcontract declared that Morfin was “responsible for any damage and
repairs caused by trucks to public roads, streets, and bridges.”
Metro further alleged that the prime contract between TGS and HCFCD
contemplated “clearing,” “grubbing,” and “excavating approximately 490,000
[c]ubic [y]ards of material with off-site disposal” in order to “widen the Brays Bayou
channel from Lidstone [Street] to Calhoun [Road]” in Houston with the goal of
“decreasing the frequency of flooding” in the area. Metro alleged that “[a]s [the]
general contractor at the [project] site, [TGS] had a duty to make sure all of its
employees and subcontractors performed their duties in a safe and prudent manner.”
The prime contract required TGS to “comply with all [municipal] laws, ordinances,
and regulations in any manner affecting the conduct of the work, including observing
traffic control devices,” “inspect the [project] site and ascertain whether any health
or safety hazards existed” before beginning work, “and not allow” anyone to perform
“services at the [project] site until they were notified of th[o]se rules and
regulations.” But, according to Metro, TGS’s safety personnel “failed to perform a
comprehensive safety inspection of the [project] site” before and during the project.
3
Metro also alleged that the prime contract “required [TGS] to provide a
[flagger] and traffic control plan in and around the [project] site” and it “prohibited
[TGS] from allowing work requiring a license to be performed by a worker who
[did] not have the proper license.” But TGS “never obtained a [t]raffic [c]ontrol
[p]ermit for the [project] site, never submitted a traffic control plan or a designated
haul route to the City,” and did not “use any [u]niform[ed] [p]eace [o]fficers at the
[project] site as required by” municipal ordinance. TGS instead “unlawfully used
untrained laborers” as flaggers to direct traffic into and out of the project site from
“MLK Boulevard, a major public roadway.” Metro noted that, according to
Melendez, “all of the dump truck drivers who were hauling from the [project] site
made the same illegal [U-]turn” that he made before colliding with the Metro train.
And Metro maintained that the flaggers used by TGS were “positioned to see all
truck drivers, including Melendez, making illegal U-turns” at the intersection of
MLK Boulevard and South MacGregor Way, yet they “did nothing to correct” the
truck drivers’ “unsafe practices.”
Metro further alleged that TGS knew that the truck drivers were compensated
by the load for hauling soil from the project site and thus it had a duty to ensure that
the drivers “complied with traffic signals,” “monitor[ed] whether” the drivers were
“making illegal U-turns over Metro’s rail tracks at the intersection of [South]
MacGregor Way and MLK [Boulevard]” and, if so, to “stop[] the practice.” “If
4
[TGS] had complied with the [prime contract]” and municipal ordinances, an
“off-duty peace officer would have recognized the danger and prevented” the truck
drivers “from making illegal U-turns” at the intersection of MLK Boulevard and
South MacGregor Way.
Metro brought claims for negligence, negligence per se, and gross negligence
against TGS.1 According to Metro, TGS was negligent in failing to, among other
things, “properly assess a dangerous condition” at the intersection of MLK
Boulevard and South MacGregor Way, “instruct [the] truck drivers not to violate
traffic control laws at or near the [project] site,” “have an off duty peace officer
directing traffic at the [project] site,” “have a [t]raffic [c]ontrol [p]lan” and “obtain
a [t]raffic [c]ontrol [p]ermit” for the project site, “have a designated haul route for
[the truck drivers] to follow,” “confine . . . traffic to designated haul routes,” and
“properly assess the area near the [p]roject [site] for traffic and safety concerns.”
Metro also maintained that TGS was vicariously liable for Melendez’s
negligent acts because TGS “had the right of control over [Melendez].” TGS “had
the right to assign tasks and control the details” of Melendez’s work “at or near the
[project] site,” and specifically, “the right to confine Melendez’s travels as well as
1
Metro also brought a fraud claim against TGS but did not appeal the trial court’s
rendition of summary judgment in favor of TGS on that claim. Thus, nothing in this
memorandum opinion disturbs the trial court’s rendition of summary judgment in
favor of TGS on Metro’s fraud claim.
5
[direct] traffic to a [d]esignated [h]aul [r]oute.” And TGS’s alleged “right of control
over Melendez” made him “an employee” or a “borrowed employee” of TGS.
As to its negligence per se claim, Metro asserted that TGS was negligent per
se in failing to have a qualified flagger, a traffic control plan for the project site, or
a traffic control permit at the project site “as required by the [City of Houston] and
the [prime contract].”
In asserting that TGS was grossly negligent, Metro alleged that TGS “had
subjective awareness of the risk involved” in using an unskilled laborer instead of a
qualified flagger, in failing to have a traffic control plan or a designated haul route,
and in “[f]ailing to advise” the truck drivers “not to make U-turns at the [intersection
of] South MacGregor Way [and MLK Boulevard].” Yet, despite its awareness, TGS
“nevertheless proceeded in conscious indifference to the rights, safety, or welfare of
others.”
According to Metro, the negligent acts and omissions by TGS, both directly
and for Melendez’s conduct under a respondeat superior theory, proximately caused
the collision between Melendez’s truck and the Metro train and caused Metro
damage. Metro sought actual damages of $1,107,384, which included Metro’s cost
to repair its train, the loss of the train’s use during the repair period, the cost to repair
the axle counter box, and the worker’s compensation benefits paid to its train
operator. Metro also sought exemplary damages not to exceed $10 million.
6
TGS answered, generally denied Metro’s allegations, and it specifically
denied that it “owe[d] a legal duty such that it would be responsible for [Melendez’s]
actions” or “a duty to ensure that Melendez, an independent contractor, performed
his work safely.” It also specifically denied that it was aware that “Melendez or any
other truck drivers routinely made illegal U-turns” at the intersection of MLK
Boulevard and South MacGregor Way or that it had any control over “the means,
methods or details of [Melendez’s] work” or any control over Melendez at the
intersection of MLK Boulevard and South MacGregor Way, which was “more than
800 feet away” from the project site. TGS noted that the TGS-Morfin subcontract
“specifically provided that [the] [t]rucks transporting dirt from Brays Bayou must
comply with all TXDOT regulations[] [as well as] Harris County and [municipal]
traffic regulations.” (Internal quotations omitted.)
Further, TGS asserted that it was “entitled to a reduction, an offset, or [a] bar
to any recovery by Metro” as provided in Texas Civil Practice and Remedies Code
section 33.001, “as well as to a determination of comparative causation, contribution
and/or indemnity plans.” TGS also invoked “all rights and limitations” set forth in
Texas Civil Practice and Remedies Code chapter 41.
TGS then moved for summary judgment, asserting that it was entitled to
judgment as a matter of law on Metro’s negligence, negligence per se, and gross
negligence claims and there was no evidence to support Metro’s negligence,
7
negligence per se, and gross negligence claims. In its amended summary-judgment
motion, TGS explained that it had contracted with Morfin “to provide trucks and
independent contractors to haul off dirt from the [project] site.” Morfin, “in turn,
[had] hired Melendez as an independent []contractor.” The TGS-Morfin subcontract
provided that the dump “[t]rucks transporting dirt from [the project site] must
comply with TXDOT regulations, Harris County and [municipal] traffic
regulations,” and under the TGS-Morfin subcontract, Morfin was “responsible for
any damage and repairs caused by trucks to public roads, street[s], and bridges.”
As to Metro’s negligence claim against it, TGS asserted that Metro had no
evidence that TGS owed it any legal duty, breached any duty, or that any breach of
duty proximately caused Metro’s damages. Also, according to TGS, no evidence
showed that it had a right of control over Melendez, an independent contractor, and
there was “no genuine issue of material fact” that TGS owed Metro “a duty such that
it would be responsible for Melendez’s actions” at the intersection of MLK
Boulevard and South MacGregor Way. As an independent contractor and the holder
of a commercial driver’s license, Melendez “had a responsibility to obey all traffic
signs, traffic laws, and traffic regulations” and “to determine what route [he] would
use to get to the [project] site.” No one from TGS told any of the truck drivers how
to operate their trucks, “told Melendez it was acceptable to make the illegal U-turn
at the intersection,” or told Melendez “that he did not need to follow the traffic
8
signs.” Thus, TGS “did not control the means, methods, or details of Melendez’s
work in driving his truck, and especially had no control over Melendez” at the
intersection of MLK Boulevard and South MacGregor Way, which was “more than
800 feet away from the [project] site.” Further, TGS asserted that there was no
evidence that anyone “from [TGS] knew that Melendez or any [of the dump] trucks
were making illegal U-turns” at the intersection. TGS also argued that Metro could
not recover under a negligence per se theory because it did not and could not plead
that TGS “violated a specific statute.” And as to Metro’s gross-negligence claim,
there was no genuine issue of material fact that TGS “had an actual, subjective
awareness of any risk involving Melendez making an illegal U-turn” at the
intersection of MLK Boulevard and South MacGregor Way.
In its summary-judgment response, Metro asserted that the prime contract
“expressly required TGS to observe and comply with all [municipal] laws,
ordinances and regulations in any manner affecting the conduct of the work,
including observing traffic control devices,” “to inspect the [project] site” before
beginning work “to determine the existence of safety hazards,” “to bar any
subcontractor at the [project] site until all were notified of all rules and regulations,”
and “to provide a flagman and [t]raffic [c]ontrol [p]lan in and around the [project]
site.” But “TGS had no [t]raffic [c]ontrol [p]lan or [t]raffic [p]ermit for the [project]
site,” and it did “not employ off-duty uniform peace officers to manage traffic at the
9
construction site as required by City of Houston Ordinance No. 2004-798 and City
of Houston Traffic Control Personnel Ordinance Regulations and Guidelines.”
According to Metro, “[i]f TGS had followed” the municipal “ordinances and
regulations and employed an off-duty peace officer to direct [the] trucks” into and
out of the project site from MLK Boulevard, the “officer would have recognized the
danger” of the truck drivers’ “illegal U-turns and put a stop to the practice before
Melendez drove his truck into the train.” Further, “TGS’s Safety Coordinator and
Safety Manager failed to properly inspect the area around the [project] site, including
traffic control devices at the intersection [of MLK Boulevard and South MacGregor
Way].”
For the proposition that TGS had the “right to control where Melendez
operated his truck,” Metro cited what it described as a “City of Houston Construction
Traffic Regulation,” which purportedly “provided TGS with the authority and duty
to provide all [truck drivers] servicing the [project] site with a ‘designated haul
route.’”2 Metro argued that TGS was negligent because it “failed to have a
2
The document cited by Metro, which it attached as Exhibit A to its
summary-judgment response, has a page heading that states: “City of Houston
Standard General Requirement,” “Section 01555 Traffic Control And Regulation.”
(Emphasis omitted.) Metro did not identify the source of the document, but it
appears to be part of a Houston Public Works publication titled “Standard
Construction Specifications for Wastewater Collection Systems, Water Lines,
Storm Drainage, Street Paving, and Traffic.” See City of Houston, Houston Public
Works, Standard Construction Specifications for Wastewater Collection Systems,
10
designated haul route despite knowing that hundreds of dump trucks would be
entering and leaving the [project] site along MLK [Boulevard].”
After a hearing, the trial court granted TGS summary judgment on Metro’s
negligence, negligence per se, and gross-negligence claims. Metro then filed an
amended motion for new trial, which the trial court denied. After Metro settled with
the remaining defendants, the trial court signed an order disposing of all remaining
claims, making its order granting TGS summary judgment final.
Standard of Review
We review a trial court’s decision to grant summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our
review, we take as true all evidence favorable to the non-movant, and we indulge
every reasonable inference and resolve any doubts in the non-movant’s favor.
Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. If a trial court
grants summary judgment without specifying the grounds for granting the motion,
we must uphold the trial court’s judgment if any of the asserted grounds are
meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied).
Water Lines, Storm Drainage, Street Paving, and Traffic (2021),
https://www.houstonpermittingcenter.org/media/3776/download.
11
To prevail on a no-evidence summary-judgment motion, the movant must
establish that there is no evidence to support an essential element of the
non-movant’s claim on which the non-movant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148
S.W.3d 94, 99 (Tex. 2004); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to
present evidence raising a genuine issue of material fact as to each of the elements
challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006); Hahn, 321 S.W.3d at 524. A no-evidence summary-judgment may not be
granted if the non-movant brings forth more than a scintilla of evidence to raise a
genuine issue of material fact on the challenged elements in the motion. Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence
exists when the evidence “rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997) (internal quotations omitted). The trial
court must grant a no-evidence summary-judgment motion if the movant asserts that
there is no evidence of one or more specified elements of the non-movant’s claim
on which the non-movant would have the burden of proof at trial and the non-movant
fails to file a timely response or fails to produce summary-judgment evidence raising
a genuine issue of material fact on each challenged element. See TEX. R. CIV. P.
12
166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67 (Tex. App.—Houston [1st
Dist.] 2009, no pet.).
To prevail on a matter-of-law summary-judgment motion, a movant has the
burden of establishing that it is entitled to judgment as a matter of law and there is
no genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995). To satisfy that burden, the movant must either:
(1) disprove at least one essential element of the plaintiff’s cause of action, or
(2) plead and conclusively establish each essential element of an affirmative defense.
See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the movant meets its burden, the
burden shifts to the non-movant to raise a genuine issue of material fact precluding
summary judgment. See Siegler, 899 S.W.2d at 197; Transcont’l Ins. Co. v. Briggs
Equip. Tr., 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
The evidence raises a genuine issue of fact if reasonable and fair-minded 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).
Summary Judgment
In its first issue, Metro argues that the trial court erred in granting summary
judgment in favor of TGS on Metro’s negligence and negligence per se claims
because it presented evidence that raised a genuine issue of fact.
13
A. Negligence
In a portion of its first issue, Metro argues that the trial court erred in granting
summary judgment in favor of TGS on Metro’s negligence claim because it provided
evidence to establish each element of its negligence claim.
A negligence cause of action has three elements: (1) a legal duty, (2) breach
of that duty, and (3) damages proximately resulting from the breach. Elephant Ins.
Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022); Watanabe v. Summit Path
Partners, LLC, 650 S.W.3d 112, 125 (Tex. App.—Houston [1st Dist.] 2021, no pet.).
The threshold inquiry in a negligence case is whether a duty exists, which “is a
question of law for the court to decide from the facts surrounding the occurrence in
question.” Elephant Ins. Co., 644 S.W.3d at 144 (internal quotations omitted).
According to Metro, TGS owed it a duty to control the conduct of Melendez,
an independent contractor, because TGS retained a contractual right to manage and
control traffic around the project site and thus, to ensure that Melendez performed
his work safely.
A general contractor typically does not owe any duty to ensure that an
independent contractor performs its work in a safe manner. Koch Ref. Co. v. Chapa,
11 S.W.3d 153, 155 & n.1 (Tex. 1999); Torres v. Pasadena Ref. Sys., Inc., No.
01-18-00638-CV, --- S.W.3d ---, 2022 WL 17684333, at *5 (Tex. App.—Houston
[1st Dist.] 2022, no pet.). But a duty may arise if the general contractor retains some
14
control over the manner in which an independent contractor performs his work.
Elliott-Williams Co., v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999); Traylor Bros., Inc. v.
Garcia, 49 S.W.3d 430, 434 (Tex. App.—San Antonio 2021, pet. denied). The right
to control can arise either through a contractual obligation or through the actual
exercise of control.3 Diaz, 9 S.W.3d at 804; Garcia, 49 S.W.3d at 434.
“Determining whether a contract gives a right of control is generally a
question of law for the court rather than a question of fact for the jury.” Dow Chem.
Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). The right to control must be more
than “a general right to order the work to start or stop, to inspect progress or receive
reports.” Id. (internal quotation omitted); see also Chapa, 11 S.W.3d at 156 (general
contractor “must have some latitude to tell its independent contractors what to do, in
general terms, and may do so without becoming subject to liability”). Instead, the
right to control must relate to the condition or activity that caused the injury, and the
contract must grant the general contractor at least the right to control “the means,
methods, or details of the independent contractor’s work such that the contractor is
not entirely free to do the work in [its] own way.” AEP Tex. Cent. Co. v. Arredondo,
612 S.W.3d 289, 295 (Tex. 2020) (internal citation and quotations omitted). If a
contractual right to control an independent contractor’s work exists, a duty arises
3
Metro, in its briefing, does not assert that TGS had “actual control,” but that TGS
had a “contractual right and obligation.”
15
even if no actual control is exercised. Id. Thus, we consider whether TGS
contractually retained a supervisory right over the means, methods, or details of
Melendez’s work such that Melendez and Morfin were not entirely free to do the
work in their own way. See id.; Chapa, 11 S.W.3d at 155.
Metro identifies provisions in what it describes as the prime contract as giving
rise to TGS’s right to manage and control the details of Melendez’s driving near the
project site and a commensurate legal duty owed to Metro. But two of the documents
that Metro cites do not appear to be part of the prime contract.4 Because the trial
court could not have properly considered them as giving rise to a contractual duty of
care, we do not consider them here.
Metro also relies on Exhibit K to its summary-judgment response, which
contains amendments to the “General Provisions” of the prime contract. Those
4
Metro cites to Exhibit H to its summary-judgment response, which is a document
apparently generated by TGS, which is titled “Contractor Safety Expectations.” The
“goals” section of the document explains that TGS’s goal is to maintain a “safe work
environment” in its “work with Harris County Counties [sic] Municipal Utility
District No. 3.” This document, on its face, does not apply to the “Brays Bayou
Channel Modification” project. Metro also cites to Exhibit I to its
summary-judgment response, which is a TGS “publication” titled
“Responsibilities” that “contains the minimum requirements for TGS personnel” in
“providing a safe workplace for its employees and [s]ubcontractors.” Metro does
not explain how Exhibit I might otherwise support its negligence and negligence per
se claims against TGS. See JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860,
867 (Tex. 2021) (“A general contractor that promulgates mandatory safety
requirements and procedures owes only a narrow duty to ensure that those
requirements and procedures do not unreasonably increase, rather than decrease, the
probability and severity of injury.” (internal quotations omitted)); see also Koch Ref.
Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999).
16
“General Provisions,” among other things, state that “contractors are advised that it
shall be their responsibility to determine if any portion of these [s]pecifications are
affected by any existing federal, state or city laws.” (Emphasis omitted.) Exhibit L,
attached to Metro’s summary-judgment response, is a supplement to the prime
contract’s “General Requirements,” which provides that the
contractor shall provide flagmen and traffic control as required for
public safety and local ordinances. Traffic signs and barricades shall
be in accordance with the Texas Manual on Uniform Traffic Control
Devices. No separate pay for flagmen or traffic control shall be made
by HCFCD.
(Emphasis omitted.)5 Metro asserts that this provision of the prime contract
incorporates by reference local ordinances that require “personnel necessary to
protect the [w]ork and public.”
Metro has not identified any ordinance requiring TGS to designate haul routes
for Morfin’s truck drivers.6 For the general provision requirement that TGS “provide
flagmen and traffic control as required for public safety and local ordinances,” Metro
refers to a municipal ordinance providing that:
5
Metro also cites to a budget line item for a “railroad flagger” in TGS’s bid for the
project, which, to the extent that “railroad flagger” means the same thing as
“flagm[a]n or traffic control,” appears to be at odds with the supplement to the prime
contract’s exclusion of separate pay for flagmen, as quoted above. In any event, the
prime contract makes no mention of a “railroad flagger,” so the proposed budget
line item does not affect our analysis of whether the prime contract gave TGS a
contractual right of control over the details of Melendez’s work.
6
Metro relies on the Houston Public Works publication described in footnote 3. See
supra.
17
During the hours between 6:00 a.m. and 7:00 p.m. on any Monday,
Tuesday, Wednesday, Thursday, or Friday, other than a holiday
observed by the closure of city offices, it shall be unlawful within the
[C]ity [of Houston] . . . [f]or any person other than a peace officer to
conduct or engage in traffic direction.
Houston, Tex., Code of Ordinances ch. 45, art. XVIII, § 45-452(a)(1). According to
Metro, because TGS did not have a qualified flagger, it failed to notice that the dump
truck drivers were making U-turns at the intersection of MLK Boulevard and South
MacGregor Way despite signage prohibiting trucks from making U-turns.7 The flaw
in this position, though, is that it wrongly presumes TGS had a duty to monitor
whether the truck drivers were making illegal U-turns over Metro’s rail tracks at the
MLK Boulevard and South MacGregor Way intersection—over 800 feet from the
project site—and correct their driving. As Metro notes, Genevieve Johnson, TGS’s
safety coordinator, testified in her deposition8 that TGS had the right to direct or
control the details of how the truck drivers operated their trucks “[o]n [the project]
7
As exhibits to its summary-judgment response, Metro attached certain affidavits in
which individuals offered their purportedly expert opinions as to whether TGS had
a duty to provide a designated haul route, a uniformed peace officer as a flagger,
and other traffic control measures. The trial court did not rule on TGS’s objections
to those affidavits. But to the extent that they seek to apply the law to undisputed
facts, they are not entitled to any weight. Courts—not witnesses, expert or
otherwise—decide the law applicable to a case. See Greenberg Traurig of N.Y.,
P.C. v. Moody, 161 S.W.3d 56, 95 (Tex. App.—Houston [14th Dist.] 2004, no pet.);
Ledbetter v. Mo. Pac. R.R., 12 S.W.3d 139, 144 (Tex. App.—Tyler 1999, pet.
denied); see also TEX. R. EVID. 702 (qualified expert may testify if testimony “will
help the trier of fact to understand the evidence or to determine a fact in issue”).
8
Metro attached the deposition of Johnson to its summary-judgment response as
Exhibit E.
18
site.” But Johnson denied that TGS had a right to control any independent
contractors more than twenty-five feet away from the project site, and nothing in the
prime contract or the TGS-Morfin subcontract supports a different conclusion.9
Instead, the TGS-Morfin subcontract required Morfin’s “[t]rucks transporting dirt”
to “comply with TXDOT regulations, Harris County and [municipal] traffic
regulations” and declared that Morfin was “responsible for any damage and repairs
caused by trucks to public roads, street, and bridges.” These provisions of the
subcontract make clear that Morfin and its commercially licensed truck drivers bore
the responsibility for safely operating their trucks on public streets.
We conclude that neither the prime contract nor the TGS-Morfin subcontract
imposed any duty on TGS to control the way that Melendez drove when he was not
at the project site. Thus, we hold that the trial court did not err in granting summary
judgment in favor of TGS on Metro’s negligence claim based on the absence of a
right to control and thus no legal duty.
We overrule this portion of Metro’s first issue.
9
To the extent that Metro argues that TGS owed it a duty of care because it should
have known that Melendez and other dump truck drivers, while off-site, were
making illegal U-turns at the intersection of MLK Boulevard and South MacGregor
Way, Texas law does not support the imposition of a duty under such circumstances.
See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 609 (Tex. 2002) (“[W]e have never
concluded that a general contractor actually exercised control of a premises
where . . . there was no prior knowledge of a dangerous condition and no specific
approval of any dangerous act.”).
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B. Negligence Per Se
In another portion of its first issue, Metro argues that the trial court erred in
granting summary judgment in favor of TGS on its negligence per se claim because
Metro “pleaded an extensive list of TGS’s violations” and TGS “presented no
evidence that it complied with the requirements” or ordinances.
“Negligence per se is a common-law doctrine that allows courts to rely on a
penal statute to define a reasonably-prudent-person’s standard of care.” Reeder v.
Daniel, 61 S.W.3d 359, 361–62 (Tex. 2001); Francis v. Coastal Oil & Gas Corp.,
130 S.W.3d 76, 93 (Tex. App.—Houston [1st Dist.] 2003, no pet.) To establish
negligence per se, a plaintiff must prove that: (1) the defendant’s act or omission
violates a penal statute or ordinance; (2) the injured person is within the class of
persons that the statute or ordinance was designed to protect; and (3) the defendant’s
act or omission proximately caused the injury. Miranda v. TriStar Convenience
Stores, Inc., No. 01-11-02073-CV, 2013 WL 3968337, at *6 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (mem. op.); Ambrosio v. Carter’s Shooting Ctr., Inc., 20
S.W.3d 262, 265 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see also
Reeder, 61 S.W.3d at 362 (“In determining whether a penal statute provides the basis
for a civil cause of action, we must consider whether recognizing such an
accompanying civil action would be inconsistent with legislative intent.”).
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Metro did not allege or present any evidence that TGS’s acts or omissions
relating to the collision between Melendez’s truck and the Metro train violate any
penal statute and, as discussed above, it has not identified any ordinance that TGS
violated. Because no evidence raises a fact issue as to the first element of Metro’s
negligence per se claim, we hold that the trial court did not err in granting summary
judgment in favor of TGS on Metro’s negligence per se claim. See Reeder, 61
S.W.3d at 361–62.
We overrule this portion of appellant’s first issue.10
Conclusion
We affirm the final order of the trial court.
Julie Countiss
Justice
Panel consists of Justices Landau, Countiss, and Guerra.
10
To the extent that appellant made other arguments in its first issue, we need not
address them or its second issue based on our holdings. See TEX. R. APP. P. 47.1.
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