HOUSTON - A state appeals court has ruled against a driver who tried to sue a contractor for a 100-pound piece of rebar that fell off an overpass and onto his truck.
Mubarak Mubarak wasn't hit by the steel and continued driving but still sued Webber LLC for personal injury and property damage in Harris County District Court. The trial judge there denied Webber's motion for summary judgment, but the First District Court of Appeals on March 6 reversed that ruling.
Webber had been hired by the Texas Department of Transportation and was using rebar to weigh down cotton mats placed over new concrete on Interstate 10 in Austin County. An unexpected wind gust blew the mats and caused the rebar to fall over the edge of the Chew Road overpass.
Webber argued it was entitled to immunity because at the time of the incident, it was in compliance with its contract with the DOT. Texas law says a contractor working on a road for the DOT is not liable for personal injury, property damage or death if the company was abiding by the terms of its agreement.
Mubarak, meanwhile, claimed Webber was required to use an enclosure to prevent air from entering the mats.
"(T)he provision required that an enclosure be anchored so that air could not enter, which would affect the concrete curing process; the provision does not require that edges of the mats be secured to prevent strong wind gusts from moving the mats," Justice Veronica Rivas-Molloy wrote.
"Thus, a contractor could comply with this provision by using anchoring that prevented air from entering but that did not prevent wind gusts from moving the mats. Accordingly, Mubarak did not create a fact issue on whether this provision was applicable or breached."
The incident occurred on Oct. 11, 2020, while Mubarak was working transporting cars from one state to another. Webber had covered recently poured concrete with wet cotton mats and plastic held down by rebar.
A wind gust of 35 miles per hour, which had not been forecasted, blew the mats and rebar, which were to be placed over the concrete for 10 days. It was a Sunday, and no Webber employees were working.
The rebar did not hit Mubarak, who testified he did not hit the inside of his truck either and no air bags deployed. He pulled over, then continued driving to Kermit.
Mubarak said Webber violated its DOT contract in failing to maintain the roadway in a good and passable condition. He added Webber failed to adequately weight the mats and anchor an enclosure to the ground.
The contract did not require Webber to use rebar to hold down the mats. Mubarak argued it was a judgment call made by the contractor that doesn't afford it immunity from liability.
Webber said it was industry standard to use rebar and that no DOT representatives at the project on a "nearly daily basis" never told the company doing so was out of compliance with the contract.
"Mubarak offered no evidence to the contrary," Rivas-Molloy wrote.