Hoyt et al v. The Lane Construction Corporation
MEMORANDUM OPINION AND ORDER: The court ORDERS that defendant's 39 motion for summary judgment be, and is hereby, granted; that plaintiffs take nothing on their claims against defendant; and, that such claims be, and are hereby, dismissed with prejudice. (Ordered by Judge John McBryde on 2/7/2018) (tln)
U.S. DISTRICT COURT
NORTHEfu'f DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT icoURT
NORTHERN DISTRICT OF TEXAp
FORT WORTH DIVISION
LINDSEY HOYT' INDIVIDUALLY'
AND AS INDEPENDENT
ADMINISTRATOR OF THE ESTATE OF
JEFFERY HOYT AND AS NEXT FRIEND
OF JOEL HOYT, EVAN HOYT, AND
KATIE HOYT, ET AL.,
THE LANE CONSTRUCTION
~LERK, U.S. DISTRICT COURT
II.. F.EB·,· . .7 2018
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, The Lane
Construction Corporation, for summary judgment. The court, having
considered the motion, the response of plaintiffs, Lindsey Hoyt,
individually and as Independent Administrator of the Estate of
Jeffery Hoyt; Joel Hoyt, Evan Hoyt, and Katie Hoyt, each suing
through Lindsey Hoyt as next friend; and Patrick Hoyt and Mary
Hoyt, the reply, the record, and applicable authorities, finds
that the motion should be granted.
Plaintiffs' claims arise out of the death of Jeffery Hoyt
("Hoyt"), who drowned on December 29, 2015, after his vehicle
slid on a patch of ice and flipped,
landing in a pool of water
adjacent to a culvert on FM 2264 in Wise County, Texas. At the
time of the accident, FM 2264 was under construction and
defendant was the general contractor for the Texas Department of
Plaintiffs contend that defendant is
liable for Hoyt's death.
Grounds of the Motion
Defendant urges three grounds in support of its motion. 1
First, defendant is immune from liability under section 97.002 of
the Texas Civil Practice and Remedies Code. Second, plaintiffs'
premises liability claim fails as a matter of law. And, third,
plaintiffs cannot prevail on their gross negligence claim.
Applicable Legal Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a); Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 247
The movant. bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
'The "summary" section of both the motion and the memorandum in support of the motion
identifies six issues, but items 2-5 are reasons why plaintiffs cannot prevail on their premises liability
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
Id. at 324; see also Fed. R. Civ. P. 56(c)
asserting that a fact
the assertion by
is genuinely disputed must support
citing to particular parts of materials in
• ff }
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
In Mississippi Prot. & Advocacy
Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F. 2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.
Section 97.002 of the Texas Civil Practice and Remedies Code
A contractor who constructs or repairs a highway,
road, or street for the Texas Department of
Transportation 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.
(West 2011). Thus, a
TxDOT contractor who is in substantial compliance with TxDOT's
contract documents is immune from liability for injury resulting
ln Boeing Co. v. Shipman, 411F.2d365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
from its work. Brown v. RK Hall Constr., LTD., 500 S.W.3d 509,
511 (Tex. App.--Texarkana 2016, pet. denied). When analyzing
whether the contractor substantially complied with the contract
documents, the focus is on provisions material to the condition
or defect that caused the plaintiff's injuries. Id. at 514. That
TxDOT inspected the work site on a daily basis and did not inform
the contractor that it was out of compliance is significant. Id.
Here, the summary judgment evidence establishes that
defendant was in substantial compliance with its contract with
TxDOT material to the condition or defect alleged to have caused
the decedent's injuries. Defendant did everything to follow TxDOT
plans. Doc. 41 at 68. TxDOT had inspectors on site each day and
neither of them ever pointed out any concerns with defendant's
work at culvert 8 or the pool at culvert 8, the area where the
accident occurred. Doc. 41 at 125-29; 154-55; 156. Work done on
October 27, 2015, was not itself negligently done, but was to
correct earlier work. 3 Id. at 92; 130-31. If drainage at culvert
8 had not been maintained, TxDOT inspectors would have brought it
to the engineer's attention. Id. at 133. That is, they would have
'There is no indication that this work even pe1tained to the area where the accident occurred or
was somehow material to the condition or defect that caused Hoyt's injuries. Doc. 41at132.
pointed out a concern about water flowing across the road, but
they never did so.
Plaintiffs say that when defendant stopped work in 2015, it
failed to stabilize the area, but they only point to the
contract, not to evidence that defendant failed to comply. Doc.
46 at 198. In addition, they cite to an email reflecting that
work performed on October 27, 2015, would not be compensated. Id.
at 199-201. As the engineer explained, that work was remedial,
Doc. 41 at 130-31, and the record does not reflect that defendant
was still out of compliance between that time and the time of the
accident. Plaintiffs also refer to an inspection report dated
January 15, 2016, id. at 202-11, but not to any evidence showing
that the report has any relevance to the condition or defect that
allegedly caused their injuries. Finally, they refer to an email
pertaining to rock filter dams,
id. at 212-14, but, again, do not
cite to any evidence to connect the rock filter dams to the
Plaintiffs are pursuing a premises liability cause of action
and concede that Hoyt was a licensee at the time of his death.
Doc. 45 at 15. To establish their cause of action, plaintiffs
must show: an unreasonably dangerous condition existed; defendant
actually knew of the condition; Hoyt did not actually know of the
condition; defendant breached a duty of ordinary care to protect
Hoyt from the condition; and, defendant's breach was a proximate
cause of Hoyt's injuries. State Dep't of Highways & Pub. Transp.
v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Defendant contends
that plaintiffs cannot show that an unreasonably dangerous
condition existed; nor can plaintiffs show that defendant
actually knew of such condition and Hoyt did not know of it. And,
defendant says that the pool of water at culvert 8 did not
constitute an unreasonably dangerous condition.
In Texas, a natural formation of ice is not an unreasonably
dangerous condition. Scott & White Mem. Hosp. v. Fair, 310 S.W.3d
(Tex. 2010). A natural formation is one that accumulates
without the assistance or involvement of unnatural contact. Id.,
310 S.W.3d at 414. Natural precipitation that freezes on a
roadway after a winter storm is a natural formation. Id. Where
the ice itself does not conceal a defect but is itself the
defect, it is not unnatural. Callahan v. Vitesse Aviation Servs.,
397 S.W.3d 342, 353
(Tex. App.--Dallas 2013, no pet.).
Here, plaintiffs allege that defendant's actions caused a
diversion of water across the roadway. The summary judgment
evidence they cite, however, does not raise a genuine fact issue
as it is speculative and conclusory. See, e.g., Doc. 46 at 216.
They do not address the source of the water itself or how it came
to be higher than the roadway so as to flow across it. 4 The
evidence shows that defendant did not change the flow of the
ditches. Doc. 41 at 187. TxDOT did not notice water flowing
across the road and its inspectors did not report that defendant
did anything to cause water to flow across the road. Id. at 14649. In sum, there is no probative evidence that defendant's
action made ice accumulate in an unnatural way.' Scott & White,
310 S.W.3d at 419. Precipitation fell and ice accumulated as the
result of meteorological forces of nature. See Doc. 41 at 37
("freezing temperatures and previous days [sic] melting snow
caused a large ice pat.ch in the corner before the creek bridge")
Defendant. urges that, even if it somehow caused the ice to
form, defendant. did not have actual knowledge of a dangerous
premises condition at the time of Hoyt's accident.. The duty to
warn licensees of a dangerous condition arises only when the
licensor has actual, not merely constructive, knowledge of the
condition. City of Corsicana v. Stewart., 249 S.W:3d 412, 414-15
(Tex. 2008); St.ate v Tennison, 509 S.W.2d 560, 562 (Tex. 1974).
'Plaintiffs' crash reconstructionist testified that at the place water flowed onto the roadway, the
shoulder was sloped away from the road at a 1.3 degree slope and that it was only when the water got to a
"certain level" that it would flow across the roadway. Doc. 41at235. Plaintiffs have not pointed to any
evidence to show that defendant created the condition that caused water to reach that "certain level."
Plaintiffs' engineering expe1t simply relied on the scans taken by.the crash reconstructionist. Doc. 46 at
'Water would have drained from east to west because of the super elevation and the curve of the
road. Doc. 41at146.
In response to this ground, plaintiffs cite to testimony
that has nothing to do with ice on the road. The hazard
referenced in the testimony plaintiffs' cite is the curve in the
road and a concern of defendant that its employees would be in
danger while working in the culvert. Doc. 46 at 225, 227-28; Doc.
41 at 49, 62-63, 67, 105, 185.' There is no evidence to raise a
genuine fact issue as to whether defendant had actual knowledge
of ice on the road on December 29, 2015. 7 See Price Constr., Inc.
v. Castillo, 147 S.W.3d 431, 436-37 (Tex. App.--San Antonio
2004), pet. denied, 209 S.W.3d 90
(Tex. 2005); Gilbert v. Gilvin-
Terrill, Ltd., No. 07-07-0206-CV, 2008 WL 2405936
Amarillo June 12, 2008, no pet.).
Plaintiffs additionally attempt to establish that the
culvert itself was an unreasonably dangerous condition. The
summary judgment evidence establishes that the culvert existed
and water pooled there before construction commenced. See, e.g.,
Doc. 41 at 190-91. Defendant's concern was that the culvert was
very close to the edge of the road and its employees would be in
harms' way while working. Id. at 105. More importantly, hazards
The court does not understand the significance of the citation to Doc. 46 at 226. The first and
second questions do not appear to be related and the witness's confusion is apparent from the exchange.
In any event, this excerpt does not establish or tend to establish defendant's knowledge regarding ice on
the road the day of the accident.
'Plaintiffs themselves point out that the TxDOT maintenance crew that drove the roads the day of
the accident said that the roads were clear. Doc. 46 at 63-64.
off the roadway are not unexpected and unusual because the
ordinary driver is •not expected to careen uncontrollably off the
paved roadway." Denton Cty. v. Beynon, 283 S.W.3d 329, 331-32
(Tex. 2009). Plaintiffs have not shown that defendant knew that
the culvert was unreasonably dangerous or that it had a duty to
warn Hoyt regarding same.
Defendant finally contends that it is entitled to summary
judgment on plaintiffs' gross negligence claim. To establish
gross negligence, plaintiffs must show by clear and convincing
evidence both that
(1) viewed objectively from defendant's
standpoint at the time it occurred defendant's act or omission
involved an extreme degree of risk considering the probability
and magnitude of the potential harm to others, and (2) defendant
had actual, subjective awareness of the risk but proceeded with
conscious indifference to the rights, safety, or welfare of
others. Tex. Civ. Prac. & Rem. Code
41.001(11); U-Haul Int'l v.
Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Plaintiffs make a
perfunctory response to this ground but fail to show that
defendant had both objective and subjective awareness that its
own acts or omissions posed a likelihood of serious injury to
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted; that plaintiffs take nothing
on their claims against defendant; and, that such claims be, and
are hereby, dismissed with prejudice.
SIGNED February 7, 2018.
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