M.A. Mortenson Co. v. Shelton

M.A. MORTENSON COMPANY, Appellant v. JAMES M. SHELTON, Appellee

No. 02-19-00435-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

June 3, 2021

On Appeal from the 271st District Court Wise County, Texas

Trial Court No. CV14-04-241

Before Sudderth, C.J.; Kerr and Bassel, JJ.

Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

I. INTRODUCTION

James M. Shelton sued M.A. Mortenson Company and others for injuries he sustained in a one-vehicle rollover accident. A jury found Mortenson, the only defendant remaining at the time of trial, liable under theories of negligent undertaking and premises liability, and awarded actual damages of over $7 million. The jury attributed 75% of the responsibility for Shelton's accident to Mortenson and apportioned the remaining 25% among three responsible third parties. On appeal, Mortenson asserts that negligent undertaking is not a cognizable theory of liability under the circumstances of this case and that the evidence is insufficient to support the jury's findings on premises liability and proportionate responsibility. We affirm.

II. BACKGROUND

A. The Windmill Project

Mortenson was the general contractor on an Archer County windmill farm project called Bobcat Bluff Windmill Farm. The project developer, enXco, engaged Westwood Professional Services, an engineering firm, to create plans for the roads in and around the project site. Those plans encompassed work to be performed on Bell Road, a public road running from a highway to and past the windmill farm site. Mortenson engaged J.H. Strain & Sons, Inc. as a subcontractor to perform the road work. Mortenson also subcontracted with L.O. Transport to provide truckingservices. All truck drivers on the project were either L.O. Transport employees or independent contractors.

Mortenson and L.O. Transport conducted regular safety meetings at which all on-site truck drivers were instructed that the speed limit on Bell Road was 15 miles per hour and that empty or unloaded trucks must yield the right-of-way to loaded trucks. Several truck drivers testified that they were aware of the right-of-way rule and that it is a standard trucking rule.

B. The Accident

On April 12, 2012, Shelton was driving a loaded truck along Bell Road with three other loaded trucks following him. At least two of these truck drivers radioed ahead that they were coming in on Bell Road. Nonetheless, William "Pops" Crowley, L.O. Transport's assistant supervisor, instructed two empty trucks to leave the site. Eric Mancil drove the lead truck, and Donald North drove the second truck. Both trucks were exceeding the speed limit and driving near the center of the road as they approached Shelton, who was coming in the opposite direction. The trucks neared each other at a point where the road narrowed as it passed over a culvert, but Mancil and North did not yield the right-of-way to Shelton even though there was a pull-out area designed for that very purpose. Because the road was too narrow for the trucks to pass one another, Shelton turned his truck a little toward the side of the road toavoid a head-on collision.¹ The road edge failed to support the weight of his truck, the tires sank into the soft ground, and the truck overturned.

C. The Condition of Bell Road

Several witnesses testified that Mancil and North had caused the accident by failing to comply with the right-of-way rule. But there was also testimony that the accident would not have occurred if the area where Bell Road crossed the culvert had been widened to accommodate two trucks passing in opposite directions. There was conflicting evidence concerning whether drivers were specifically informed about the narrowing of the road at the culvert.

A Texas State trooper who arrived at the scene shortly after the accident opined that the rollover likely would not have occurred if the road had included a shoulder or slope² or if it had been wider. He testified that the road was a typical West Texas caliche road and that it was unusual for such roads to have slopes or shoulders. But he also testified that it was not typical to have two-way rock-hauler traffic on such roads and that such a situation would require special attention and special safety rules.

Shelton presented expert testimony that the road at the accident site was hazardous because it was too narrow for two-way traffic, had no shoulders, wasimproperly sloped, had steep drop-offs at the edge, and lacked pavement markers or barriers to define the road edge. The expert opined that the failure to construct proper slopes, as required by the plans, created a dangerous condition that was a cause of Shelton's accident.

Mortenson's corporate representative, David Dreis, testified that Mortenson was aware that the road at the culvert was too narrow for trucks to pass and that Mortenson could have obtained a permit to widen the road but had made a conscious decision not to do so. Dreis acknowledged that the culvert area was unsafe and that Mortenson could have built slopes but had chosen not to because it did not see a need for them. Mortenson also did not put up signs warning of the narrowing at the culvert because the county had not put up any such signs. Dreis conceded that leaving the culvert area as it was had increased Shelton's potential to be harmed.

Dreis acknowledged that Mortenson's contract with enXco imposed on Mortenson the duty to "[m]aintain access on public and private roads within the Project boundary to allow safe, unimpeded vehicular travel by the public." He also acknowledged that Mortenson's decision not to widen the road at the culvert had resulted in a less safe, impeded portion of road. And while Dreis at first asserted that the road was closed to the public during construction, he later conceded that the public was able to access the road during that period. He further conceded that the public would not have been aware of the right-of-way rule or of the hazard created by the narrowing of the road at the culvert.

D. The Jury's Findings

The trial court submitted two questions to the jury inquiring whether Mortenson's negligence, if any, proximately caused Shelton's injury. In conjunction with Question 1—the negligent undertaking submission—the court instructed the jury that Mortenson was negligent if

• it undertook to perform services that it knew or should have known were necessary for Shelton's protection;

• it failed to exercise reasonable care in performing those services; and

• its performance increased Shelton's risk of harm, or Shelton relied upon Mortenson's performance.

In conjunction with Question 2—the premises liability submission—the court instructed the jury that Mortenson was negligent if

• the condition on the premises posed an unreasonable risk of harm;

• Mortenson knew or reasonably should have known of the danger; and

• Mortenson failed to exercise reasonable care to protect Shelton from the danger "by both failing to adequately warn [of] the condition and failing to make the condition reasonably safe."

The jury answered both liability questions, "Yes." It also found that the negligence of Mancil, North,³ and L.O. Transport caused Shelton's injury and apportioned responsibility 75% to Mortenson, 10% to Mancil, 5% to North, and 10% to L.O. Transport. The jury awarded actual damages exceeding $7 million. Afterapplying a $1,285,000 settlement credit, the trial court entered judgment in accordance with the jury's verdict.

III. DISCUSSION

A. Negligent Undertaking

1. Viability of the negligent undertaking claim

In its first issue on appeal, Mortenson contends that the trial court erred by submitting Shelton's negligent undertaking claim to the jury. Mortenson objected at trial to submitting that theory of liability on the ground that it was not a legally cognizable claim under the circumstances of the case. The error is thus preserved for our review. See Tex. R. App. P. 33.1.

Texas law recognizes that "a duty to use reasonable care may arise when a person undertakes to provide services to another, either gratuitously or for compensation." Torrington Co. v. Stutzman, 46 S.W.3d 829, 837-38 (Tex. 2000) (citing Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396 (Tex. 1991); Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 120 (Tex. 1976)). The essential elements of a negligent undertaking claim are (1) the defendant undertook to perform services that it knew or should have known were necessary for the plaintiff's protection, (2) the defendant failed to exercise reasonable care in performing those services, and either (3) the plaintiff relied upon the defendant's performance, or (4) the defendant's performance increased the plaintiff's risk of harm. See id. at 838.

The threshold inquiry in every negligence case is whether a duty exists. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam); Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). This inquiry presents a question of law. Kroger, 197 S.W.3d at 794; Thapar, 994 S.W.2d at 637. "The critical inquiry concerning the duty element of a negligent-undertaking theory is whether a defendant acted in a way that requires the imposition of a duty where one otherwise would not exist." Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam) (emphasis added).

Relying on the emphasized language from Nall, Mortenson argues that it did not owe Shelton any duty under a negligent undertaking theory because it already owed him independent duties as defined by premises liability law. Indeed, the trial court recognized the existence of those duties by submitting Shelton's premises liability theory to the jury. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (stating that general contractor in control of premises owes duty to use reasonable care to make and keep premises safe for business invitees). Mortenson contends that the trial court therefore erred by also submitting negligent undertaking.

Shelton responds that we should...