In this case of first impression, the El Paso court of Appeals held that  the contractor, who built an overpass under contract with the Texas Department of Transportation (“TXDOT”), was immune from liability for injuries sustained by plaintiff when he fell from an overpass. A.S. Horner, Inc. v. Navarrette, No. 08-18-00044-CV, 2021 WL 1050063 (Tex. App.—El Paso Mar. 19, 2021, no pet.).

The plaintiff firefighter-paramedic, Navarrette, while responding to a multi-vehicle accident, fell from an overpass built by the TXDOT contractor, Horner.  Navarrette alleged that:

while between the barricades, on a defectively designed and installed cement catwalk without restraining  rails he fell 20 to 30 feet through a 3 1/2 or 4 feet opening.”

Id at *1.

Navarrette sued TXDOT and its contractor, Horner, under premises liability and negligence theories. Horner filed a motion for summary judgment with the trial court requesting dismissal based upon statutory immunity grounds, under Tex. Civ. Prac. & Rem. Code § 97.002. This statute provides immunity from liability to a contractor who constructs a highway, road, or street for TXDOT, in compliance with the contract documents material to the occurrence. The trial court denied Horner’s motion for summary judgment and Horner appealed the decision.

On appeal, Navarrette did not dispute that Horner built the overpass in accordance with the contract documents. Rather, Navarrette contended that this statute did not apply, since his injuries arose after completion of the construction.

In holding that the statute applied, the Court of Appeals stated:

For these reasons, we disagree with Navarrette’s proposed interpretation of the statute’s text. Section 97.002 applies alike whether contractors have ongoing projects or have ultimately completed their work.”

Id *7.

The Court of Appeals reversed the trial court’s order denying Horner’s motion for summary judgment and entered judgment dismissing Navarrette’s lawsuit against Horner.