Motion for Summary Judgment in ALICIA PERALES AS REPRESENTATIVE OF THE ESTATE OF MARIO A. PERALES, AND AS NEXT OF RIEND OF S.M. PERALES AND M. PERALES,JR. MINOR CHILDREN V. DANIEL SIEGER, INDIVIDUALLY AND AS AGENT OF DEFENDANT PEOPLE READY, INC.| Trellis.Law

On September 27, 2017 a Exhibit,Appendix was filed involving a dispute between Perales, Alicia, Sieger, Daniel, and Blue Team Restoration, Llc, Dbnk Contracting, Llc D B A Blue Team Restoration, Llc, People Ready, Inc., Sieger, Daniel, Sieger, Representative Of The Estate Of, Herlinda, Texas Sai, Inc, True Blue Enterprises, Inc, for Injury or Damage - Other (OCA) in the District Court of Hidalgo County.

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CAUSE NO.C-4445-17-G

ALICIA PERALES IN THE DISTRICT COURT
AS REPRESENTATIVE OF THE
ESTATE OF MARIO A.PERALES,
AND AS NEXT OF FRIEND OF
S.M. PERALES AND
M.PERALES,JR., MINOR CHILDREN

vs.
370TH JUDICIAL DISTRICT
DANIEL SIEGER,INDIVIDUALLY
AND AS AN AGENT OF DEFENDANT
PEOPLE READY,INC.,
TEXAS SAI,INC. and TRUEBLUE
ENTERPRISES,INC. as agent for its
Subsidiaries and affiliates PEOPLE READY,
INC., and DBNK CONTRACTING,LLC,
D/B/A BLUE TEAM RESTORATION,LLC., HIDALGO COUNTY,TEXAS

DEFENDANT,TEXAS SAI,INC.'S TRADITIONAL AND NO-EVIDENCE
MOTIONS FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW,TEXAS SAI,INC.,a defendant, cross-defendant, and third-party Plaintiff

(hereinafter "Defendant") in the above-entitled civil action and files this its Traditional and No-

Evidence Motions for Summary Judgment, pursuant to Texas Rule of Civil Procedurel66a and

166a(i), to dismiss the Complaints of Negligence brought by both Plaintiffs, Alicia Perales, as

representative of the Estate of Mario A. Perales and as Next of Friend of S.M. Perales and M.

Perales, Jr., Minor Children, and Cross-Plaintiff, Daniel Sieger, and would respectfully show the

Court as follows:

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BACKGROUND

This lawsuit arises out of a single-vehicle accident that happened on or about Tuesday,

August 29, 2017, on U.S. Highway 281 at the 744-mile marker south of the Hidalgo-Brooks

County line. The accident occurred when the vehicle in which Plaintiffs decedent, Mario A.

Perales, without a seatbelt, was riding is alleged to have flipped several times. Mr. Perales was

killed when he was ejected from the vehicle and was not wearing a seat belt. At the time of the

accident, the vehicle was being driven by Defendant/Cross-Plaintiff, Daniel Sieger. Plaintiffs and

Cross-Plaintiff have both sued Texas SAI, Inc. in this matter claiming that road conditions at the

accident location were the result of negligent and/or grossly negligent acts or omissions on the part

of Texas SAI, Inc. Texas SAI, Inc. strenuously denies any liability. The accident happened at

approximately 10:36 p.m. and there were no work crews out there whatsoever.

The location of the accident at issue was alleged to have been within an overlay paving

project being conducted by the Texas Department of Transportation (TxDOT), which included

two lanes north and two lanes south on US Highway 281 and was approximately 15.742 miles

long. Defendant, Texas SAI, Inc. was the general contractor engaged by TxDOT on that project.

At all relevant times, Texas SAI,Inc. was in substantial compliance with all of TxDOT's contract

documents and requirements for the project and now brings this Traditional and No-Evidence

Motions for Summary Judgment for the Court's consideration based upon the immunity afforded

to it by Section 97.002 of the Texas Civil Practice and Remedies Code.

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SUMMARY JUDGMENT STANDARDS

A traditional motion for summary judgment and its supporting evidence must show that

there is no genuine issue as to a material fact and must show the movant is entitled to judgment as

a matter oflaw.Tex. R. Civ.P. 166a(c). A defendant is entitled to summaryjudgment on plaintiffs

causes of action if the defendant can disprove at least one element of plaintiffs causes of action.

Randalls'Food Mkts., Inc. v. Johnson,891 S.W.2d 640,644(Tex. 1995).Furthermore,a defendant

is entitled to summary judgment ifthey can conclusively establish each element of an affirmative

defense. Id.

A no-evidence motion for summary judgment, in contrast, is intended to "pierce the

pleadings" and evaluate the evidence to see if trial is necessary. Benitz v. Gould Grp., 27 S.W.3d

109, 112(Tex.App. — San Antonio,2000,no pet.). The procedure is designed to isolate and dispose

offactually unsupported claims or defenses. Celotex Corp. v. Catrett,477 U.S.317,323-24(1986).

Essentially, a no-evidence motion is a pretrial directed verdict. Morris v. Deutsche Bank National

Trust Comp., 528 S.W.3d 187, 193 (2017). A movant in a no-evidence summary judgment claim

is allowed to allege that the non-movant has no evidence of a specific element of his cause of

action to plead a specific and acceptable no-evidence motion. David F. Johnson, The No-Evidence

Motionfor Summary Judgment in Texas, 52 Baylor L. Rev. 929 (Fall 2002). Once the motion is

filed, the burden shifts to the non-movant to produce more than a scintilla of evidence of those

properly challenged elements. Mack Trucks, Inc. v. Tamez,206 S.W. 3d 572,581-82(Tex. 2006);

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A defendant movant is entitled

to the no-evidence summary motion if the plaintiff cannot meet this burden. King Ranch, 118

S.W.3d at 751.

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ARGUMENT AND AUTHORITIES

A. AN ADEQUATE TIME FOR DISCOVERY HAS PASSED

In determining whether adequate time for discovery has passed, the following factors

should be considered:

• the nature of the case;
• the length oftime the case has been active;
• the amount oftime the no-evidence motion has been on file;
• whether the movant has requested stricter deadlines for discovery;
• the amount of discovery already conducted; and
• whether the discovery deadlines in place are specific or vague.

Martinez v. City ofSan Antonio,40 S.W. 3d 587,591 (Tex. App.—San Antonio 2001,pet denied);

Specialty Retailers, Inc. v. Fuqua, 29 S.W. 3d 140, 145 (Tex. App. Houston [14th Dist.] 2000,

pet denied).

Plaintiff filed this lawsuit on September 27, 2017, over two and one-half years ago. Since

that time, the parties have exchanged extensive written discovery and production consisting of

thousands of pages of documents. In addition, the following depositions have already taken place:

• Plaintiff Alicia Perales
• Defendant Daniel Sieger
• Department of Public Safety(DPS)Trooper, DeEstan Ford Turner
• TxDOT engineer Joel Garcia
• TxDOT inspector Martin De La Fuente, Sr.

While the case was set for trial for May 26, 2020, due to Covid-19 trial has been passed.

Notwithstanding and while not so admitting, these motions are therefore ripe for consideration by

this Court.

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B. PLAINTIFFS CANNOT OVERCOME THE TEXAS CIVIL PRACTICE & REMEDIES CODE
SECTION 97.002 LIMIT ON LIABILITY

The Texas Legislature enacted Section 97.002 of the Texas Civil Practice & Remedies

Code as a limit on contractor liability, the full section of which is copied here:

Sec. 97.002. LIMIT ON LIABILITY OF CERTAIN HIGHWAY,ROAD, AND
STREET CONTRACTORS. 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.

In brief, a TxDOT contractor who is in substantial compliance with TxDOT's contract documents

is immune from liability for injury resulting from its work. See Brown v. RK Hall Constr., LTD.,

500 S.W.3d 509, 511 (Tex. App.--Texarkana 2016, review denied). Testimony showing that the

contractor substantially complied with TxDOT's plans and that the contractor was never informed

of any noncompliance is sufficient to invoke Section 97.002 immunity. Id. Section 97.002 of the

Texas Civil Practice & Remedies Code applies to this case because Defendant Texas SAI, Inc. is

a general contractor that was hired by the TxDOT to perform road repairs to US 281. However, as

stated above, Section 97.002 only applies if a personal injury or death arisesfrom the perfounance

of the construction or repair. In this lawsuit, Plaintiffs have alleged that the "uneven surfaced

roadway" and "insufficient traffic control signage" under the control of Texas SAI, Inc. on

southbound US 281 caused the accident to occur. See Plaintiffs'Seventh Amended Petition onfile

in this cause and incorporated herein by reference. Texas SAI, Inc. vehemently denies the

allegations of Plaintiffs that its performance of repairs caused the accident making the basis of this

lawsuit or even contributed to it. However,for the sake of argument in these Motions,and without

herein so admitting, Texas SAI, Inc. would show that even if the alleged uneven lanes and/or

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inadequate signage as part of its repair performance caused the accident and death of Mario A.

Perales as alleged by Plaintiffs, it still cannot be held liable under Sec. 97.002 because the evidence

shows that at all times Texas SAI,Inc. was compliant with its contract with the Texas Department

of Transportation.

The contract at issue for the US 281 Project is Contract #10153029, Control 025506065

between TxDOT and Texas SAI,Inc. The specific contract documents material to the condition or

defect that was the alleged proximate cause ofthe personal injury and death are the TxDOT Plans

and Specifications for the US 281 project, which were developed by TxDOT Professional

Engineer, Joel Garcia. Please see the bates-stamped TxDOT Plans and Specifications that were

referenced as exhibit 3 in the deposition of Joel Garcia attached hereto as Exhibit "A" and

incorporated herein by reference. Please see excerptsfrom the transcript ofthe deposition ofJoel

Garcia taken February 26, 2020 attached hereto as Exhibit "B". Ex. B 11:8-11:25; Ex. B 21:13-

22:2 and incorporated herein by reference. The TxDOT Plans and Specifications include a

"Traffic Control Mae', pages related to the portion of the asphalt to be removed from the road2,

and still other pages related to signage for uneven lanes3. Exhibit A.

Martin de la Fuente, Sr. was the TxDOT Construction Inspector Tech II whose job it was

to be onsite each day for 12-13 hour shifts during the entirety ofthe year-and-a-half US 281 project

to inspect the road construction and pay Texas SAI, Inc. for their work being done if it was in

compliance with the TxDOT Plans and Specifications. Ifthe work was not in compliance,TxDOT

could withhold payment. Please see excerptsfrom the transcript ofthe deposition ofMartin de la

Fuente, Sr. taken February 26, 2020 attached hereto as Exhibit C. Ex. C 20:19-21:1; Ex. C

Exhibit A,section containing Traffic Control Plan bates-stamped as SAI 5661-5669
2 Exhibit A, SAI 5641; SAI 5647.
3 Exhibit A,relevant pages including but not limited to those bates-stamped as SAI 5670; SAI 5691

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33:14-34:9; Ex. C 65:22-66:4 and incorporated herein by reference. He testified that Texas SAI,

Inc. was in compliance with all contract requirements with TxDOT,and that the work performed

by Texas SAI,Inc. conformed with the work specifications for the 281 Project. Ex. C 58:23-59:5.

While onsite each day, Martin De La Fuente, Sr. had the US 281 project Plans and Specifications

with him in his truck, which served as his field office. Ex. C 15:21-16:17. He drove the length of

the project twice daily, each morning and each night, to make sure all the signs and barricades

were up. Ex. C 29:18-30:21; Ex. C 38:4-39:1. This included both the northbound and southbound

lanes of US 281 for the entire length of the project, and not simply just the specific area where

current roadwork was being done. Ex. C 87:16-88:24. Work could not start in the morning by the

contractors unless he completed his inspection of the signs and barricades. Ex. C 65:3-65:8. In

addition, he conducted barricade inspections at the beginning and middle of each month. Ex. C

29:18-30:21; Ex. C 38:4-39:1. The US 281 project specifically utilized advanced warning signs

for the duration of the project, which include "Uneven Lane signs. Ex. C 31:24-32:18; Ex. C

39:2-39:15. Because Uneven Lane signs were required by the project, Martin De La Fuente, Sr.

would not leave the project until he saw these signs installed. Ex. C 115:7-115:14. If something

with regards to signage was not in compliance, he would advise Texas SAI, Inc. and they would

address the problem. Ex. C 29:18-30:24; Ex. C 31:24-32:18. Ifthis happened at the end ofthe day,

he further testified that he was always sent a photograph or other confirmation that night that the

issue was corrected. Ex. C 89:3-91:6. Texas SAI was paid for their work and the work was

accepted by TxDOT. TxDOT had developed the traffic control plan and was responsible for

ensuring it was complied with.

The records kept by Martin De La Fuente, Sr. establish that the signage was in compliance

with the TxDOT Plans and Specifications at the time ofthe accident. As part ofhis role for TxDOT,

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Martin De La Fuente, Sr. kept a daily work report("DWR")that kept track of major work items

that were done in the day, including remarks on the compliance of signs and barricades with the

Traffic Control Plan. Ex. C 48:5-48:10; Ex. B 26:3-26:12; Ex. B 63:14-64:20. Please see the

Contract DWR Summary that were referenced as exhibit 4 in the depositions ofJoel Garcia and

Martin De La Fuente, Sr. attached hereto as Exhibit "D" and incorporated herein by reference.

The DWRs from the days surrounding the accident show the following information summarized

here:

Monday,August 28,2017 - "Project Barricades were inspected @7:30 am and they
were up to standard."

Tuesday, August 29, 2017 - "Project Barricades were inspected @ 7:00 am and
they were up to standard."

Wednesday, August 30, 2017 - "Project Barricades were inspected @ 7:00 am and
they were up to standard."

See Exhibit "D", highlighted on Page 13.

Martin De La Fuente, Sr. testified that the quoted notations referred to the entire length of

the project on US 281, both northbound and southbound Ex. C 88:2-88:24. The accident occurred

Tuesday, August 29,2017 at approximately 10:36 p.m. The DWRs therefore show that Martin De

La Fuente, Sr. confirmed that signs and barricades on southbound US 281 were in compliance with

the Plans and Specifications that morning before the accident occurred, and the morning after the

accident occurred. These same notes are reflected in the Contract Diary and DWR Remarks that

were maintained by Martin De La Fuente, Sr. Please see the Contract Diary and DWR Remarks

that were referenced as exhibit 6 in the deposition ofJoel Garcia attached hereto as Exhibit "E"

and incorporated herein by reference. As mentioned previously, these morning notes are in

addition to the likely inspection that was performed by Martin De La Fuente, Sr. on the night of

the accident, as he did every night.

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Additional evidence shows that "Uneven Lane signs were utilized by Texas SAI, Inc. in

accordance with TxDOT Plans and Specifications. A video taken by Texas SAI, Inc. on the day

before the accident August 28, 2017 shows "Uneven Lane signs on both sides of US 281

southbound before the area where the accident occurred. Please see a still shotfrom the Video

referenced as exhibit 7 in the deposition of Joel Garcia attached hereto as Exhibit "F" and

incorporated herein by reference. The positioning of the signs is in compliance with the specific

US 281 Plans and Specifications for Uneven Lanes on "Divided Roadways". See Exhibit A, SAI

5691 and incorporated herein by reference. This video makes it all the more likely that on the

night of the accident, the Uneven Lane signs were in this position as confirmed the moming after

by Martin De La Fuente, Sr. Of course, notwithstanding, Department of Public Safety Trooper,

DeEstan Ford testified the accident was caused by Sieger's following too closely.

Along with the signage, the actual roadway at the time of the accident on US 281

southbound was in compliance with the TxDOT Plans and Specifications. The plans called for

replacement of 2 inches of the existing 10-inch top layer of asphalt in the section where the

accident occurred. Allowances were in place for any grade difference and the project was within

it. Exhibit A, SAI5641, 5647-5652; Ex. B 52:2-53:24; Ex. B 55:13-58:22; Ex. B 55:13-54:16; Ex.

B 56:9-56:23 and incorporated herein by reference. DPS Trooper DeEstan Ford Turner was the

lead investigator after the accident and testified that when he arrived on the night of the accident,

he visually observed that the outer lane was about two inches higher than the inside lane. Please

see excerptsfrom the transcript ofthe deposition ofTrooper DeEstan Ford Turner taken January

16, 2020 attached hereto as Exhibit "G" and incorporated herein by reference. Ex. G 87:10-

87:21; Ex. G 88;22-89:2; Ex. G 97:8-97:21. There is no evidence therefore that the roadway had

a lane elevation change that was different than that contemplated by the TxDOT Plans and

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Specifications.

Martin De La Fuente, Sr. testified that Texas SAI, Inc. was in compliance with all contract

requirements with TxDOT US 281 Project Plans and Specifications including the Traffic Control

Plan. Ex. C 34:15-34:20; Ex. C 58:23-59:5. Joel Garcia was also not aware of any noncompliance

by Texas SAI,Inc. with the TxDOT contract whatsoever. Ex B 88:16-88:20. Martin De La Fuente,

Sr. testified that TxDOT had the power to stop work on the project if he saw that something was

wrong or unsafe, and that no such stoppages ever happened. Ex. C 35:1-35:8. Garcia was also

unaware of any such stoppages. Ex. B 26:13-28:13. Neither Martin De La Fuente, Sr. nor Joel

Garcia were aware of any complaints with regard to the paving that was done for the project or

with regard to signage on the project. Ex. B 70:3-70:15; Ex. C 55:13-55:20. Martin De La Fuente,

Sr. further testified that he was in charge of approving payment to and paying Texas SAI,Inc., and

that ifsomething was not in compliance with the contract or the plans, he could refuse to pay them.

Ex. C 35:9-35:19. However, this never happened. Ex. C 35:9-35:19. Garcia was also unaware of

any such instances where Texas SAI, Inc. was not paid because of any noncompliance with

TxDOT work specifications. Ex. B 61:12-62:4; Ex. B 59:7-63:4; Ex B 89:12-89:23. Instead, the

evidence shows that the US 281 project was completed and all payments to Texas SAI, Inc. were

made. Ex. C 36:13-36:24. Based upon all the evidence above, it would be appropriate for this

Court to grant Defendant, Texas SAI, Inc.'s Motions for Summary Judgment, because Texas SAI,

Inc. is entitled to complete immunity from liability under Section 97.002 ofthe Texas Civil Practice

& Remedies Code based upon its compliance with all TxDOT contract documents material to the

condition that was the alleged proximate cause ofthe automobile accident resulting in the death of

Mario A. Perales.

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Granting Defendant's Motions for Summary Judgment would be consistent with the

conclusions drawn in Brown, a case with similar facts and similar evidence. See Brown v. RK Hall

Constr., LTD., 500 S.W.3d 509, 511 (Tex. App.—Texarkana 2016, review denied). In Brown, a

motorist crashed in a construction zone late at night and sued TxDOT's general contractor for

failing to place proper traffic control barriers. Id. at 511-512. The Court, however, held that the

contractor wasimmune from liability under Section 97.002 ofthe Texas Civil Practice & Remedies

Code because the placement of the barriers substantially complied with TxDOT's plans. Id. In

making this decision the Court relied upon testimony from the TxDOT engineer that contractors

are not authorized to change the placement of traffic control barriers without TxDOT's approval,

and that the contractor's placement of barriers were in compliance with the plans. Id. at 512. The

Court further relied upon the testimony of the TxDOT inspector in charge of examining the site

twice daily, who testified that he personally examined the construction site before leaving for the

day of the accident, and that everything was in its proper place. Id. Likewise, the Court relied on

testimony from the contractor's employees stating that they were never informed that any traffic

control devices were out of place, even though TxDOT inspected the construction site on a daily

basis. Id. In light of this evidence, the Court held the contractor was completely immune from

liability under Section 97.002. Id. Similarly here, TxDOT engineer, Joel Garcia and TxDOT

inspector, Martin De La Fuente, Sr. both testified as to Texas SAI, Inc.'s compliance with the

TxDOT US 281 Plans and Specifications, and there is no evidence as to other complaints regarding

the roadway or signage near the area of the accident. In addition to the testimonial evidence, there

are recorded Daily Written Reports as well as videotape footage to further show that the roadway

and signage complied with TxDOT's plans at the time of the accident. This Court should therefore

follow the reasoning of Brown in this case and grant this Traditional Motion for Summary

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Judgment.

Iv.

NO PROXIMATE CAUSE

Defendant would further show that on traditional grounds it moves for summary judgment

on lack of proximate cause, a necessary element of negligence. Negligence requires a showing of

proximate cause, while producing cause is the test in strict liability. General Motors Corp. v.

Saenz, 873 S.W.2d 353, 357 (Tex.1993). Proximate and producing cause differ in that

foreseeability is an element of proximate cause, but not of producing cause. Id. Proximate cause

consists of both cause in fact and foreseeability. Travis v. City ofMesquite, 830 S.W.2d 94, 98

(Tex.1992); Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977);

Nixon v. Mr. Property Management Co., 690 S.W.2d 546,549(Tex.1985)(emphasis ours). Cause

in fact means that the defendant's act or omission was a substantialfactor in bringing about the

injury which would not otherwise have occurred. Prudential Ins. Co. v. Jefferson Assocs., 896

S.W.2d 156 (Tex.1995); Nixon,690 S.W.2d at 549; Havner v. E-Z Mart Stores, Inc., 825 S.W.2d

456, 458-59(Tex.1992)(emphasis ours).

At some point in the causal chain, a defendant's conduct or product may be too remotely

connected with the plaintiff's injury to constitute legal causation. Defining the limits of legal

causation "eventually mandates weighing of policy considerations." City of Gladewater v. Pike,

727 S.W.2d 514, 518 (Tex.1987); see also Springall v. Fredericksburg Hospital and Clinic, 225

S.W.2d 232, 235 (Tex.Civ.App.--San Antonio 1949, no writ)(emphasis ours). The law does not

hold one legally responsible for the remote results of his wrongful acts and therefore a line must

be drawn between immediate and remote causes. The doctrine of"proximate cause is employed

to determine and fix this line and "is the result of an effort by the courts to avoid, as far as possible

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the metaphysical and philosophical niceties in the age-old discussion ofcausation, and to lay down

a rule of general application which will, as nearly as may be done by a general rule, apply a

practical test, the test ofcommon experience, to human conduct when determining legal rights and

legal liability." Id. at 235 (quoting City of Dallas v. Maxwell, 248 S.W. 667, 670

(Tex.Comm'nApp.1923, holding approved).

In our case, DPS Trooper, DeEstan Ford Turner was the lead investigator after the accident

and testified on or about January 16, 2020. In sworn testimony, he testified that from his

investigation was that the steering wheel was turned to the right. Evidence on the roadway

suggested the vehicle made a sharp steer to the right which was indicated by the yaw marks on the

roadway. What he did not know is if the steering input was caused by Sieger as a response to an

overcorrection or the passenger (Perales decedent). Please see excerptsfrom the transcript ofthe

deposition of Trooper DeEstan Ford Turner taken January 16, 2020 attached hereto as Exhibit

"G" and incorporated herein by reference. Ex. G 67:5-16. Ford testified there were skid marks

in the outside lane in a straight line that suggested to him Sieger was trying to avoid another vehicle

in front of him; and if someone was brake checking Sieger, it meant he was riding them too hard

(following too closely). Id at 77:14-25; and 78:1-15 and 21-25. Trooper Ford was told by Sieger

consistent with the evidence found,that Sieger was following too closely a vehicle in front of him

who was brake-checking, and this was a contributing fact to the accident. Id at 48:16-26; 49:1-

25; 50:1-22; 54:25; 55:1-9; and 71:14-25. When Sieger moved to the left to avoid the vehicle in

front of him that was allegedly, brake checking, he told Trooper Turner he felt the bump. Id at

86:25; and 87:1-6. Trooper Ford testified that Sieger failed the standard of care of an ordinary

prudent person for not grossly deviating and engaging in criminal negligence because he should

have been aware that an improper following distance could result in insufficient distance to stop

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without colliding; that one must keep an assured clear distance ifthey encounter a brake checking

driver in front of them and Sieger did not; and that his negligence resulted in the evasive action

and accident. Id at89:6-25;90:1-13; 112:22-25; and 113:1-3. Sieger also testified that the change

in lanes would not have caused a roll over; that the steer to the right or movement of it to the right

is what caused the roll over; that there was no roll over hazard; and that Sieger set into motion the

entire accident. Id at 106:7-16; 118:9-25; 119:1-7; and 120:2-6. Ford found the evasive action

taken by Sieger caused the vehicle to lose control and go off the road. Id at 90:1-13.

Trooper Ford also testified the gradual change in elevation would have been felt by Sieger

through his tires and so, was on notice going into the inside Southbound lane initially. Id at

103:25; 104:1-25; and 105:1-4. He also testified that Sieger caused the accident. Id at 71:22-25

this cite, and all deposition cites incorporated herein by reference.

Taking the sworn testimony of Trooper Ford, there is no proximate cause of the accident

other than Sieger's following too closely and causing the accident period. For these reasons, there

is no material fact issue on proximate cause which is a necessary element and defendant is entitled

to summary judgment.

NO EVIDENCE ON NEGLIGENCE

Defendant, Texas SAI, Inc. would show that the Plaintiffs and cross-plaintiff have no-

evidence of any duty, breach of duty and/or proximate cause towards the Plaintiffs and/or cross-

plaintiff that is required for them to bring their claims of negligence. As described in detail above

in Sections HI and IV, the arguments of which are fully incorporated here, Plaintiffs and cross-

plaintiff have not provided any evidence that Texas SAI,Inc. was out ofcompliance with the Plans

and Specifications that were a part of its contract with TxDOT. There is no evidence that the US

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281 project was ever stopped because it was unsafe. There is no evidence of any complaints with

regard to the paving that was done for the project or with regard to signage on the project. There

is further no evidence that Texas SAI,Inc. was not paid by TxDOT because of any noncompliance

with TxDOT work specifications. Plaintiffs and cross-plaintiff have not provided any evidence

that Texas SAI, Inc. was not in compliance with its TxDOT contract. Instead, all evidence points

to the contrary. As such, Plaintiffs and cross-plaintiff have no evidence that can overcome the

immunity from liability that is afforded to Texas SAI, Inc. by Section 97.002 of the Texas Civil

Practice & Remedies Code. Plaintiffs and cross-plaintiff therefore have no evidence they can

provide to show that Defendant, Texas SAI, Inc. had a duty, breached that duty towards the

Plaintiffs and cross-plaintiffPlaintiffand/or no evidence of any proximate cause as detailed above.

Defendant, Texas SAI,Inc. therefore asks this court to Grant its No-Evidence Motion for Summary

Judgment and dispose of all the factually unsupported negligence claims against it from which it

is immune and for which there is no evidence on duty, breach of duty and/or proximate cause.

VI.

NO-EVIDENCE SUMMARY JUDGMENT AS TO GROSS NEGLIGENCE

Defendant would show that Plaintiffs and cross-plaintiff have no legal basis to recover

exemplary damages against defendant. In order to recover exemplary damages, a plaintiff must

meet the "clear and convincing" higher standard of proof required by the Texas Civil Practice and

Remedies Code ("CPRC"):

exemplary damages may be awarded only if the claimant proves by clear and
convincing evidence that the harm with respect to which the claimant seeks
recovery of exemplary damages results from:

1) fraud;
2) malice; or
3) gross negligence.

62466:45060907 15
Electronically Filed
5/4/2020 5:17 PM
Hidalgo County District Clerks
Reviewed By: Adriana Garcia

TEX. CIV.PRAC.& REM. CODE § 41.003(a)(emphasis added).

In their petitions and/or cross-petitions, Plaintiffs and cross-plaintiff allege gross

negligence against Defendant as the basis for an award of exemplary damages. The Texas Civil

Practice and Remedies Code("CPRC") defines "gross negligence as an act or omission:

(A) which when viewed objectively from the standpoint
ofthe actor at the time ofits occurrence involves an
extreme degree of risk, considering the probability
and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness
of the risk involved, but nevertheless proceeds with
conscious indifference to

Case Info

Judge

Gonzalez, Noe) Party(TEXAS SAI, INC; HIGHWAY BARRICADES AND SERVICES, LLC; DUSTROL, INC.; WEST TEXAS ROCK RESOURCES, LLC Track Judge’s New Case

Case No.

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Document Filed Date

May 04, 2020

Case Filing Date

September 27, 2017

County

Parties

ANALISA FIGUEROA Attorney for the Defendant
BLUE TEAM RESTORATION, LLC Defendant
DBNK CONTRACTING, LLC d/b/a BLUE TEAM RESTORATION, LLC Defendant
JAVIER GONZALEZ Attorney for the Defendant
MARCY LYNN ROTHMAN Attorney for the Defendant
MICHAEL S. BECKELMAN Attorney for the Defendant
MIKE MILLS Attorney for the Defendant
People Ready, Inc. Defendant
Perales, Alicia Plaintiff
RICARDO GONZALEZ Attorney for the Plaintiff
Sieger, Daniel Defendant
SIEGER, DANIEL Plaintiff
SIEGER, REPRESENTATIVE OF THE ESTATE OF, HERLINDA Defendant
STEPHEN A. GIBSON Attorney for the Defendant
STEPHEN A. GIBSON Attorney for the Plaintiff
TEXAS SAI, INC Defendant
TRUE BLUE ENTERPRISES, INC Defendant
Shauna Lozano Attorneys for Defendants
Victoria Olivarez Attorneys for Defendants
Clinton Wolbert Attorney
Maria Hexsel Attorneys for Defendants
Michael Flanagan Attorney
Susan Sullivan Attorneys for Defendants
Michelle Scheiffele Attorneys for Defendants
Josephine Ramirez Attorney
Erin Thorn Attorney
Stephen Bega Attorney
Gregg Brown Attorneys for Defendants
Maria Korzendorfer Attorneys for Defendants
Raul Gonzalez Attorney
Tyler Allen Attorneys for Defendants
Garett Willig Attorneys for Defendants
Garland Williams Attorney
Jerrad Bloome Attorneys for Defendants

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Exhibit,Appendix: ALICIA PERALES AS REPRESENTATIVE OF THE ESTATE OF MARIO A. PERALES, AND AS NEXT OF RIEND OF S.M. PERALES AND M. PERALES,JR. MINOR CHILDREN V. DANIEL SIEGER, INDIVIDUALLY AND AS AGENT OF DEFENDANT PEOPLE READY, INC.

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