SE Texas Record

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Bridge contractor not liable for car over embankment, high court rules

By Steve Korris | Apr 19, 2011


AUSTIN – Parents of a woman who drowned after her car missed a bridge can't sue the contractor who fixed the bridge, the Supreme Court of Texas ruled on April 15.

All nine Justices agreed that Allen Keller Co. owed no duty to change the design of the job or to warn the public of a hazardous condition.

Justice Debra Lehrmann wrote that any decision to rectify the condition would have had the effect of altering 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," she wrote.

Gillespie County hired Keller to work on a number of road projects related to flooding. One project involved excavating an embankment and erecting a concrete channel next to a one lane bridge spanning the Pedernales River.

The contract required Keller to adhere to specifications that O'Malley Engineers of San Antonio produced. O'Malley personnel visited the site periodically, and a county representative visited 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 finished the job in 2003, O'Malley certified it, and the county accepted it.

On a rainy night, a car slid out of control on a sharp curve leading down to the bridge. Passing through the gap between the guardrail and the embankment, the car rolled into the river.

The driver and a passenger escaped, but car owner Courtney Foreman drowned.

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 dropped 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 failed to address whether it created a dangerous condition.

They found 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 disagreed.

"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 jeopardized federal funding.

She wrote that at oral argument, counsel for the Foremans argued Keller should have warned the county of the hazard.

"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 was aware of conditions at the site.

"Keller was a contractor, not an engineer, and its work was certified by the engineer before it left the project site," she wrote.

Wade Crosnoe, Jeff Otto, Natasha Waddell and Catherine Faubion represented Keller.

Randy Howry, Sean Breen and John Carlson represented the Foremans.

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