In a negligence suit involving the immunity of highway construction contractors employed by TxDOT, the 14th Court of Appeals has ruled that the ultimate certification of a project’s contractual compliance does not grant immunity from accidents that occurred while the project was ongoing.
ISI Contracting, Inc. v. Omar Dar (No. 14-24-00340-CV; July 29, 2025) arose after Omar Dar sued ISI for an accident he experienced on a highway ISI had been repairing. Dar was riding his motorcycle in the center lane and attempted a right turn when he was struck by a vehicle traveling in the far-right lane and sustained severe injuries. In the suit, he alleged ISI proximately caused his injuries by failing to provide “adequate signage, barricades, and markings” and follow “adequate safety policies and procedures” for the construction work. ISI moved for summary judgment, asserting protection under § 97.002, CPRC, which grants roadway contractors commissioned by TxDOT immunity from liability if they were “in compliance with contract documents material to the condition or defect that was the proximate cause of the personal injury, property damage, or death.” The trial court denied the motion, prompting ISI’s interlocutory appeal.
In an opinion by Justice Wise, the court of appeals affirmed. ISI argued it conclusively proved its entitlement to § 97.002 immunity because their contract compliance was certified by TxDOT’s area engineer. They first cited the TxDOT contract, which establishes the area engineer’s authority to “observe, test, inspect, approve, and accept the work” and “decide [] all questions about [] Contract interpretations, and acceptable Contract fulfillment”. According to TxDOT’s area engineer, the project fully complied with its contract because (1) the daily work reports he received from on-site TxDOT inspectors never noted any safety issues, not even Dar’s accident, and (2) TxDOT ultimately paid ISI for the work, suggesting it was acceptable. ISI urged the court to accept the engineer’s certification of compliance as the San Antonio Court of Appeals did in ISI Contracting, Inc. v. Markham, 647 S.W.3d 489 (Tex. App.—San Antonio 2022, pet. denied), granting ISI immunity because the TxDOT contract gave the engineer “final and binding authority to determine whether [ISI’s] work was in compliance with the contract documents” and TxDOT ultimately accepted the work. (citation omitted).
The court of appeals rejected this comparison, observing that the San Antonio case concerned an accident that occurred after ISI’s work had been completed. As the court pointed out, this defense was expressly rejected in Haydon Building Corp v. Green, No. 08-23-00073-CV, 2024 WL 3611000 (Tex. App.—El Paso July 31, 2024, pet. denied) (mem. op.). There, the El Paso Court of Appeals denied defendants’ claim for § 97.002 immunity, reasoning that because the fatal accident occurred while work was ongoing, there could not have been an “ultimate decision on contract fulfillment”. Moreover, it ruled that an “engineer’s [on-site] approval of the placement of traffic control barriers during an overnight shift of an ongoing project” is incomparable to TxDOT’s approval of completed work.
The court of appeals reasoned similarly that the engineer could not have conclusively certified the project’s compliance with the traffic control plan, on the day of the accident, because: (1) he relied on the inspectors’ daily work reports and did not visit the site or consult them independently, (2) he did not know about the accident or which barriers were in place at the time of the accident (because the reports did not record the accident), and (3) the reports’ failure to note a serious accident, because inspections were performed at the end of workday or the following morning, indicated inspectors were nowhere near the vicinity of the scene, rendering compliance with the traffic control plan undeterminable. Given the engineer’s absence from the site, lack of awareness of the accident and its pre-conditions, and reliance on second-hand work reports, the court rejected ISI’s certification defense.
Consequently, the court held that TxDOT’s ultimate acceptance of ISI’s work did not grant § 97.002 immunity because it did not conclusively prove their compliance with contractual duties on the date of the accident. It affirmed the trial court’s denial of ISI’s summary judgment motion.
TCJL Intern Shaan Rao Singh researched and prepared this article.
