FILED
DALLAS COUNTY
4/21/2014 5:51:45 PM
GARY FITZSIMMONS
DISTRICT CLERK

CAUSE NO. DC-1211591
TAMMY WEAVER, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE
ESTATE OF TERRY WEAVER, DECEASED
AND DEREK WEAVER
VS.
HARRISON HOIST, INC., DOING BUSINESS
AS HARRISON CRANE & HOIST, INC.,
HUNT CONSTRUCTION GROUP

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IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

68TH JUDICIAL DISTRICT

PLAINTIFFS' RESPONSE TO DEFENDANT HUNT CONSTRUCTION GROUP'S HYBRID
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Tammy Weaver, Individually

and as Representative

of THE ESTATE OF

TERRY WEAVER, DECEASED, and DEREK WEAVER (hereinafter "Plaintiffs"), and files this, their
response to Defendant Hunt Construction Group's (hereinafter "Hunt") pursuant to Rule 166a of the
Texas Rules of Civil Procedure. In support of same, Plaintiffs would respectfully show as follows.
FACTUAL BACKGROUND

Mr. Weaver's Death
On July 7,2012, a Harrison Hoist, Inc. ("Harrison") crew was dismantling a tower crane that had
been used in a University of Texas - Dallas campus construction project overseen by contractor Hunt
Construction Group ("Hunt").!

After the upper crane had been removed, the workers were dismantling

the 67-meter tower by unscrewing bolts? To save time, as many as six out of eight bolts were removed
at every section, with remaining bolts being loosened.' Terry Weaver and another worker remained at
the top of the crane to rig the tower sections to the mobile assist crane.4 The investigation demonstrated

Terex Crane Incident Peiner SK415 - Investigation Report at ~2 (Aug. 17,2012), attached as Ex. A.
Terex Crane Incident Peiner SK415 - Investigation Report at ~2 (Aug. 17,2012), attached as Ex. A.
3 Hurst Metallurgical Research Laboratory, Inc. Preliminary Investigation at ~3b, attached as Ex. B.
4 Hurst Metallurgical Research Laboratory, Inc. Preliminary Investigation at ~3c, attached as Ex. B.
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 that "the mast bolts of several tower sections [being] partially remove [d] corrupted the entire stability of
the tower."s After strong winds came, the tower collapsed, killing Terry Weaver and another worker.6

Failure to Properly Dismantle the Crane
While it may seem obvious that six out of eight bolts should not be removed from the sections of
a 67-meter tower while workers are still atop the tower, multiple investigations were of course
conducted into these tragedies. These investigations revealed several root causes, including:
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No written procedures detailed the proper assembly of the crane for the
Harrison crew;7
The mast bolts were not all in place and tightened;
If the mast bolts had been in place and tightened, there would have been
no collapse without the wind;
Even with the wind, the tower would not have collapsed if the mast bolts
were in place on the diagonal of the sections.
Even with the wind and with mast bolts in place only on the leeward side,
the tower would not have collapsed if the bolts were tightened correctly.'

After its own investigation, OSHA found several violations causative to these deaths, including:
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A serious violation that the assembly/disassembly director supervising the
assembly/disassembly operation did not address the hazards associated
with the operation, including the effect of wind speed and weather on the
equipment;"
A serious violation for failure to use manufacturer procedures for
assembly/disassembly, which did not prevent unintended dangerous
movement and collapse of the mast, provide adequate support and stability
to the mast, or minimize workers' exposure to collapse of the craner'" and
A serious violation for using employer procedures not developed by a
qualified person (a professional engineer, including an engineering
analysis of all existing and potential forcesj.l!
Serious violation for failure to train workers regarding the requirements
of OSHA crane regulations applicable to their respective roles;!2

Terex Crane Incident Peiner SK415 - Investigation Report at ~4 (Aug. 17,2012), attached as Ex. A.
Terex Crane Incident Peiner SK415 - Investigation Report at ~2 (Aug. 17,2012), attached as Ex. A.
7 Hurst Metallurgical Research Laboratory, Inc. Preliminary Investigation at ~4.3, attached as Ex. B.
8 Terex Crane Incident Peiner SK415 - Investigation Report at ~5 (Aug. 17,2012), attached as Ex. A.
9 OSHA Citation and Notification of Penalty at 6 (Nov. 20, 2012), attached as Ex. C.
10 OSHA Citation and Notification of Penalty at 7-9 (Nov. 20, 2012), attached as Ex. C.
11 OSHA Citation and Notification of Penalty at 10 (Nov. 20, 2012), attached as Ex. C; OSHA Investigation No. 508219 at 2,
(excerpts) attached as Ex. D.
12 OSHA Citation and Notification of Penalty at 11 (Nov. 20, 2012), attached as Ex. C.
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 No written procedures were provided to the Harrison laborers for proper disassembly of the
crane by either Harrison or Hunt.13 Alberto Almoguerra, tower crane technician for Harrison," testified

that Harrison's usual practice was to totally remove six of the bolts in every connection, and to leave
two in the diagonal remaining legs.IS

Almoguerra admitted that this obviously was not a stable

configuration because it fell. 16 Obviously, ifthere are eight points of connection, and six are completely
removed and the remaining two loosened, the stability decreases.17
Hunt knew bolts were being removed and that the weather had become dangerously windy.
There can be no better evidence of this than the fact that Hunt's assistant superintendent took pictures
the day of the incident and shortly before the collapse that clearly show both dark clouds and the
removalofbolts:I8

Hurst Metallurgical Research Laboratory, Inc. Preliminary Investigation at ~1.4 , attached as Ex. B.
Deposition of Alberto Almoguerra at 50:14-17 (Feb. 10, 2014), attached as Ex. E.
15 Deposition of Alberto Almoguerra at 31:23-32:19, 92:1-13 (Feb. 10,2014), attached as Ex. E.
16 Deposition of Alberto Almoguerra at 92:15-23 (Feb. 10,2014), attached as Ex. E.
17 Deposition of Alberto Almoguerra at 92:24-93:9 (Feb. 10,2014), attached as Ex. E.
18 Deposition of David Briones at 54:16-22,109:24-110:111:6 (Sept. 5,2013), attached as Ex. F; July 7,2012 Photographs,
attached as Ex. G.
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 The photographs, taken by Hunt's own agent shortly before the collapse, clearly demonstrate the
removal of the bolts (green arrows pointing to black area show bolts installed; red arrows pointing to
empty spaces show removal of bolts [arrows drawn for demonstrative purposes for this response]):

In other words, because Hunt was supervising the project closely enough to take progress
pictures, the very problems that caused the tower collapse could literally be seen through the viewfinder
of Hunt's camera.
4

 Jack Keller, Harrison's crane dismantling supervisor, also testified that Hunt's safety manager,
Jakarylton Brunson, participated in the safety meeting the morning of the collision.19 From Keller and

Brunson's discussion in the safety meeting, Keller understood that Hunt through Brunson would be
monitoring the weather.i'' Keller "relay[ed] to Hunt the way in which [Harrison was] planning on
dismantling the tower crane" during this safety meeting, and Hunt did not correct the procedure."
Keller said it was "fair to say that Hunt was aware of [Harrison's] procedures for dismantling the tower
crane prior to" Harrison's beginning work on the day of the deaths.22 Keller also did not recall Hunt
inquiring about whether Harrison's agents were trained at all on the new OSHA regulations applying to
dismantling the crane.23 Although he was the supervisor for the crane assembly, Keller himself testified
that he believed standard industry procedure was to untorque the bolts, leaving two bolts "catty-comer
as you come down.,,24However, while he knew that a tower crane collapse would provide an extreme
degree of risk of significant injuries and death, 25Keller indicated that he "did not know" what effect it
would have on the tower's ability to handle a wind load if the bolts were removed catty-corner.r" Keller
acknowledged that if he were dismantling the crane now, he would not have taken out the bolts in the
same marmer.27
A job hazard analysis ("JHA") was in fact submitted to Hunt by Harrison for the dismantling of
the subject crane_28This JHA specifically referenced "untorquing" of the bolts, and referred to the

Deposition ofJack Keller at 49:22-551:19 (Feb. 10,2014), attached as Ex. H.
Deposition of Jack Keller at 49:22-50:25 (Feb. 10,2014), attached as Ex. H.
21 Deposition of Jack Keller at 54:5-22 (Feb. 10,2014), attached as Ex. H.
22 Deposition of Jack Keller at 55:8-12 (Feb. 10,2014), attached as Ex. H.
23 Deposition ofJack Keller at 45:2-10 (Feb. 10,2014), attached as Ex. H.
24 Deposition of Jack Keller at 101:18-102:4 (Feb. 10,2014), attached as Ex. H.
25 Deposition of Jack Keller at 89:9-90:4 (Feb. 10, 2014), attached as Ex. H; Deposition of Alberto Almoguerra at 73:4-1
(Feb. 10,2014), attached as Ex. E.
26 Deposition of Jack Keller at 108:5-15 (Feb. 10,2014), attached as Ex. H.
27 Deposition ofJack Keller at 116:23-117:6 (Feb. 10,2014), attached as Ex. H.
28 Job Hazard Analysis, attached as Ex. I.
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 manufacturer's manual for the tower crane_29 The operating manual for this crane provides instructions
on the dismantling of the tower sections.i'' This manufacturer's manual for the tower crane was actually
kept in Hunt's

safety manager's

office."

OSHA noted that the manufacturer

instructs that "the

connecting elements (mast bolts) are to be removed between the tower section which is to be dismantled
and the tower section which is placed underneath,"

which obviously would have prevented Mr.

Weaver's death.32

Failure to Recognize Dangerous Weather Patterns
The operating manual for this crane also requires that crane operation be stopped "whenever
wind forces are prejudicial to safety.,,33 This is defined as winds of 20 miles per hour or more." As a
result, weather monitoring is critical to the safety of the workers on a tower crane, as Mr. Weaver's
death demonstrates. And this was no freak gust. Bryan K. Rappolt, Plaintiff s meterological expert,
performed a meterological analysis of the weather at the scene on the date of the incident."

His

conclusion was that "[a] wind of this velocity is a common occurrence at and in the proximity of the
[location of the incident] on an annual basis.,,36 At approximately 2:57 p.m., weather data showed
scattered clouds with gusts of winds of 21.9 mph." Rappolt indicated that a peak 3-second wind gust
velocity of approximately 41-43 mph occurred sometime between 3:17 p.m. and 3:18 p.m. on the date of
the incident, with sustained winds ranging from 31 to 35 mph." OSHA noted that "dark clouds" were

29 Deposition

of JukaryJtonBrunson at 30: 16-31:9 (Sept. 5,2013), attached as Ex. J.
Terex Operating Manual at 08.64 (Harrison 458), (excerpts) attached as Ex. K.
31 Deposition of Jukarylton Brunson at 107:7-9 (Sept. 5,2013), attached as Ex. J.
32 OSHA Investigation No. 508219 at 4, (excerpts) attached as Ex. D.
33 Terex Operating Manual at 00.03 (Harrison 155), (excerpts) attached as Ex. K.
34 Terex Operating Manual at 00.03 (Harrison 155), ( excerpts) attached as Ex. K.
35 "Meterologist Analysis and Meterological Variable Estimation July 7tl" 2012 at and in the Proximity to the University of
Texas in Richardson, Texas," Bryan K. Rappolt (May 28, 2013), attached as Ex. L.
36 "Meterologist Analysis and Meterological Variable Estimation July 7th, 2012 at and in the Proximity to the University of
Texas in Richardson, Texas," Bryan K. Rappolt at 8 (May 28,2013), attached as Ex. L.
37 OSHA Investigation No. 508219 at 4, (excerpts) attached as Ex. D.
38 "Meterologist Analysis and Meterological Variable Estimation July ih, 2012 at and in the Proximity to the University of
Texas in Richardson, Texas," Bryan K. Rappolt at 8 (May 28,2013), attached as Ex. L.
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 visible as early as 3:06 pm in photographs of the dismantling in the very pictures Hunt agents took."
OSHA's investigation demonstrated that by 3:09 pm, "clouds had moved into the area and the sky was
dark.,,4o
Hunt agents were responsible for monitoring the weather. 41 Hunt did monitor the weather
immediately before and in fact during the crane falling.42 Immediately before the Crane fell, David
Briones, assistant superintendent for this job at Hunt Construction.l'' observed dark clouds rolling into
the work area.44 Photographs Briones took at the scene bear this out." Operations were supposed to stop
in the event of rain or wind under Hunt protocol."

Briones agreed that it was important to "continually

monitor the weather in order to determine whether or not crane operation could continue.v'"

Jukarylton

Brunson, safety manager with Hunt,48 first noticed the weather because "dirt was flying by" the window
of his office.49 He noticed a "pretty heavy wind pick up" and then saw the tower crane fall.5o Brunson
indicated that Hunt first noticed the change in weather immediately before the crane's fall; however,
Keller testified that the conversation with Hunt about the weather took place more than an hour prior to
the collapse.i' Harrison employees affirmed that Brunson (with Hunt) was responsible for monitoring
the weather. 52

OSHA Investigation No. 508219 at "Photograph Mounting Sheet", (excerpts) attached as Ex. D.
OSHA Investigation No. 508219 at 4, (excerpts) attached as Ex. D.
41 Deposition of Jack Keller at 49:22-50:4 (Feb. 10,2014), attached as Ex. H; Deposition of Alberto Almoguerra at 95:1796:2,128:21"129:11, 29:l3-16,130:15-18 (Feb. 10,2014), attached as Ex. E.
42 Deposition of David Briones at 44:1-19 (Sept. 5, 20l3), attached as Ex. F.
43 Deposition of David Briones at 12:22-l3:4 (Sept. 5,2013), attached as Ex. F.
44 Deposition of David Briones at 46:4-10 (Sept. 5, 2013), attached as Ex. F.
45 Deposition of David Briones at 55:12-18 (Sept. 5, 20l3), attached as Ex. F; July 7, 2012 Photographs, attached as Ex. G.
46 Deposition of David Briones at 75:2-12 (Sept. 5,2013), attached as Ex. F.
47 Deposition of David Briones at 78:19-22 (Sept. 5,2013), attached as Ex. F.
48 Deposition of Jukarylton Brunson at 12:20-24 (Sept. 5,2013), attached as Ex. J.
49 Deposition of Jukarylton Brunson at 57:21-22 (Sept. 5,2013), attached as Ex. J.
50 Deposition ofJukarylton Brunson at 60:1-23 (Sept. 5, 2013), attached as Ex. J.
51 Deposition ofJack Keller at 78:9-25 (Feb. 10,2014), attached as Ex. H.
52 Deposition of Alberto Almoguerra at 95:17-96:2, 128:21-129:11,29:13-16,130: 15-18 (Feb. 10,2014), attached as Ex. E.
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 Hunt Controlled the Worksite and Harrison's

Safety Practices

The general contractor for the job was movant Hunt, which contracted with Harrison. S3Hunt
contractually retained and in fact exercised extensive control over Harrison's

safety measures.

The

"Project Safety Requirements" with UT Dallas required that "[t]he Contractor (Hunt) shall bear overall
responsibility for all aspects of safety at the Project.T"
"include [d] authority to direct actions of subcontractors

The project safety coordinator role for Hunt
and to stop work operation whenever any

worker is exposed to a risk that can be reduced or eliminated.T'' The first page of Hunt's Project Safety
Program states that Hunt "will not accept substandard safety performance from any entity, either by
group or individual, that would sacrifice the safety of a worker.t''"

Hunt emphasized that "[i]t shall be a

goal of all levels of management and supervision to instill a safety culture that will encourage all
workers onside to take pride in the fact that they are on a project that is committed to their safety."s7
Specifically, "[a]t Hunt ... protecting the public, subcontractor employees, and our employees are the
most important part of any work we do."s8 Hunt promised to "meet or exceed applicable standards,
including ... Current OSHA CFR 29 1926 including 11-8-2010 OSHA 1926.550 Update For Cranes."S9
Hunt contractually retained the right in its contract with Harrison to:

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54
55
56
57
58
59
60
61

Order Harrison to remove any Harrison employee that Hunt deemed
to be unsatisfactoryr'"
Approve Harrison's staff for the job after review of their
qualifications; 61

Subcontract Agreement (Nov. 7,2011), attached as Ex. M.
Section 013523 -Project Safety Requirements at lA.l (Apr. 20, 2009), attached as Ex. N.
Section 01 3523 - Project Safety Requirements at 3.2.2 (Apr. 20, 2009), attached as Ex. N.
Stage 1 Demolition / Utility Relocation Project Safety Program at "Forward" (JuI. 15,2011), attached as Ex. O.
Stage I Demolition / Utility Relocation Project Safety Program at "Forward" (Jul. 15, 2011), attached as Ex. O.
Stage 1 Demolition / Utility Relocation Project Safety Program at 3 (JuI. 15,2011), attached as Ex. O.
Stage 1 Demolition / Utility Relocation Project Safety Program at 3 (JuI. 15,2011), attached as Ex. O.
Subcontract Agreement at 11.1 (Nov. 7, 2011), attached as Ex. M.
Subcontract Agreement at 11.3 (Nov. 7,2011), attached as Ex. M.

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Require Harrison to submit a "submittal log and schedule, which
shall be updated weekly, showing the status of all required shop
drawings, samples, and other required submittals,,;62
Require Harrison to submit a safety plan;63
Order Harrison to stop any work that Hunt deems unsafe until
corrective measures acceptable to Hunt have been implemented.'"
Modify the project scheduler"
Require a daily report form completed every working day.'"
Order Harrison to increase its manpower; 67 and
Require drug testing."

Multiple Hunt superintendents had the duty to exercise and in fact did exercise control over
subcontractor safety on this job.

The Hunt project manager had the responsibility under the project

safety program to review the Subcontractors

Site Safety Program, to be involved in each pre-

construction meeting, to identify hazards and review subcontractor safety programs (which must have
met or exceeded Hunt's,

UT Dallas's,

superintendent, Robert Olsen,
participate in pre-construction

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the UT System, and OSHA requirements.v'"

The Hunt

had the contractual responsibilities under the project safety program to

meetings with subcontractors; review subcontractor safety submittals;

discuss safety in weekly subcontractor progress meetings; and "assist in enforcing employee and
subcontractor

safety compliance.v'

Olsen admitted that one of his job duties was to monitor

subcontractors and stop work if it was being done in an unsafe manner.f
had the duty and the authority to correct unsafe subcontractor behavior.

He specifically admitted he

73

Subcontract Agreement at 12.1 (Nov. 7,2011), attached as Ex. M.
Subcontract Agreement at 25.1 (Nov. 7,2011), attached as Ex. M.
64 Subcontract Agreement at 25.1 (Nov. 7,2011), attached as Ex. M (along with a self-serving sentence that exercise of this
control should not be construed as control).
65 Subcontract Agreement at 9.4 (Nov. 7,2011), attached as Ex. M.
66 Subcontract Agreement at 9.6 (Nov. 7,2011), attached as Ex. M.
67 Subcontract Agreement at 9.7 (Nov. 7, 2011), attached as Ex. M.
68 Subcontract Agreement at 25.5 (Nov. 7,2011), attached as Ex. M.
69 Stage 1 Demolition / Utility Relocation Project Safety Program at 6 (Jul. 15,2011), attached as Ex. O.
70 Deposition of Robert Olsen at 11:3-7 (Sept. 6,2013), attached as Ex. P.
71 Stage 1 Demolition / Utility Relocation Project Safety Program at 7 (JuI. 15,2011), attached as Ex. O.
72 Deposition of Robert Olsen at 16:10-18 (Sept. 6,2013), attached as Ex. P.
73 Deposition of Robert Olsen at 16:24-17:6 (Sept. 6,2013), attached as Ex. P.
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 Jukarylton Brunson, safety manager with Hunt,74 also admitted that his daily inspection of a
work site is to "mak[e] sure that everybody is following the rules ... jobsite rules ... OSHA regulations,
company policies, things like that.,,75 He specifically stated, "[a]gain, I do monitor the work of the
subcontractors onsite.,,76 He emphasized when he ensures that workers are following the rules that he
meant "everybody that walks onsite," not merely Hunt employees.f

He specifically stated that this

included the subcontractors and the work that they were performing, as well as whether the job in
general was OSHA-compliant. 78 Brunson testified that Hunt conducted a daily safety orientation for all
contractors.i" Brunson also testified that he reviewed job hazard analysis to make sure it is "what [he]
consider[s] complete.t''"

Not only that, but Brunmson would, "[a]fter orientation, again, walk the

project, just making sure that ... all the rules are being followed."sl If Brunson saw a contractor doing
something unsafe or not presented in a lHA, Brunson had the authority to tell them to stop work
immediately.Y Brunson admitted that he exercised that control in that if he saw a subcontractor's
employee violating OSHA rules creating a danger like a major fall hazard, he would instruct them to
stop.S3

Similarly, David Briones, assistant superintendent for this job at Hunt,S4 acknowledged that his
job for Hunt was to "coordinate subcontractors," "schedule activities on the job site," communicate with
representatives from the subcontractor, tell the subcontractors "when to start, where to start, ... what
specific tasks we want in each area, the amount of manpower ... ," and importantly, to "determin[e]
Deposition of Jukarylton Brunson at 12:20-24 (Sept. 5, 2013), attached as Ex. J.
Deposition of Jukarylton Brunson at 15:8-13 (Sept. 5, 2013), attached as Ex. J.
76 Deposition of Jukarylton Brunson at 32:21-25 (Sept. 5,2013), attached as Ex. J.
77 Deposition ofJukary1ton Brunson at 16:14-18 (Sept. 5, 2013), attached as Ex. 1.
78 Deposition ofJukarylton Brunson at 16:19-25 (Sept. 5,2013), attached as Ex. J.
79 Deposition ofJukarylton Brunson at 19:12-20:8 (Sept. 5,2013), attached as Ex. J.
80 Deposition ofJukarylton Brunson at 21:3-10 (Sept. 5, 2013), attached as Ex. 1.
81 Deposition of Jukarylton Brunson at 24:4-13 (Sept. 5, 2013), attached as Ex. 1.
82 Deposition ofJukarylton Brunson at 34:1-15 (Sept. 5, 2013), attached as Ex. 1.
83 Deposition of Jukarylton Brunson at 123:4-21 (Sept. 5,2013), attached as Ex. J.
84 Deposition of David Briones at 12:22-13:4 (Sept. 5,2013), attached as Ex. F.
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 whether or not the conditions of the work site were safe for work to be done that day.,,85 Briones
emphasized that Hunt as the general contractor had the right to stop work.86 He specifically stated that
where subcontractors acted in a wrong manner, it was Hunt's "duty" and "job" to correct it.8? However,

Briones also acknowledged that he had not read Hunt's own safety manual or undergone any training on
the safety manual.88Briones admitted that there was no excuse for not following OSHA regulations or
Hunt safety regulations.Y Briones admitted that as a Hunt Supervisor, it was part of his job "to see that
OSHA rules and regulations were followed by the subcontractors on the job site when known." It was
also part of his job as he walked through the job site to "look for dangers or violations of OSHA rules
and regulations," at which time he would immediately go to them and make them stop work." For
example, on this very job, Briones stated that he frequently had to correct subcontractor's employees for
violating the "ladder rule" regarding which steps of a ladder workers could use for fall hazards.v'
Briones also acknowledged that the dismantling of a tower crane is a very dangerous period of work for
the workers.93

Importantly, Hunt was on notice that Harrison Hoist was not equipped to perform this very
dangerous work. In fact, Harrison had already committed two "near miss" safety incidents/violations one of which actually did result in an injury" - that triggered Hunt to require a crane coordinator from

Deposition of David Briones at 13:5-19 (Sept. 5,2013), attached as Ex. F.
Deposition of David Briones at 77:8-18 (Sept. 5, 20l3), attached as Ex. F.
87 Deposition of David Briones at 19:15-20:1,20: 15-18 (Sept. 5,2013), attached as Ex. F.
88 Deposition of David Briones at 96: 11-19(Sept. 5,2013), attached as Ex. F.
89 Deposition of David Briones 138:17-139:2 (Sept. 5,2013), attached as Ex. F.
90 Deposition of David Briones 92:5-19 (Sept. 5,2013), attached as Ex. F.
91 Deposition of David Briones 92:24-93:5 (Sept. 5,2013), attached as Ex. F.
92 Deposition of David Briones 99:4-100:16 (Sept. 5, 20l3), attached as Ex. F.
93 Deposition of David Briones 94:24-95:5 (Sept. 5,2013), attached as Ex. F.
94 Deposition of Jukarylton Brunson at 135:5-l36:5 (Sept. 5, 20l3), attached as Ex. J.
85
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 Harrison.

95

These "near misses" caused Hunt to have "concern about the safety or welfare" of the

workers on the project.96
Harrison Hoist was required to submit a job safety/hazard analysis to Hunt prior to beginning
work on the crane.97 Hunt required subcontractors performing work of six feet or greater to develop a
separate written fall protection work plan "tailored to the scope of their work, identifying hazards and
abatement methods to be used related to that work.,,98 Without filling out a ISAlIHA, Hunt had the
ability to prevent Harrison from performing any work." Further, Hunt required Harrison to prepare a
site-specific safety plan. 100 The IHS were to be used "to assure each different type of work task is
performed safely.,,101Hunt also conducted a meeting with Harrison specifically about its safety rules in
diismantlimg a crane.102

Hunt admitted in discovery that it retained the ability to terminate or remove subcontractors'
employees due to a gross safety violation.103 Hunt further admitted that it had the ability to order
Harrison to stop any work that Hunt deemed unsafe until corrective measures acceptable to Hunt were
implemented.104 In fact, Hunt actually did stop Harrison from working on this crane at one point
because Keller as Harrison's safety representative was not present.i'" Keller emphasized that he
understood if a Hunt safety representative saw something being done unsafely with the dismantling of

Deposition of David Briones 145:20-146:12, 147:16-24 (Sept. 5, 2013), attached as Ex. F; Deposition of Jukarylton
Brunson at 96: 15-97:17 (Sept. 5, 2013), attached as Ex. J.
96 Deposition of David Briones 145:20-25 (Sept. 5,2013), attached as Ex. F.
97 Deposition of David Briones at 67:22-25 (Sept. 5,2013), attached as Ex. F; Harrison Crane & Hoist Job Hazard Analysis
(July 7, 2012), attached at Ex. 1.
98 Stage 1 Demolition / Utility Relocation Project Safety Program at (Harrison 593) (JuI. 15,2011), attached as Ex. O.
99 Deposition of David Briones at 69:18-23 (Sept. 5,2013), attached as Ex. F.
100 Deposition of David Briones at 71: 16-72:5 (Sept. 5, 20l3), attached as Ex. F.
101 Stage 1 Demolition / Utility Relocation Project Safety Program at 12 (JuI. 15,2011), attached as Ex. O.
102 Deposition ofJack Keller at 63:6-11 (Feb. 10,2014), attached as Ex. H.
103 Hunt's Objections and Responses to Plaintiffs' First Request for Admissions, Response No. 10 (Sept. 4, 2013).
104 Hunt's Objections and Responses to Plaintiffs' First Request for Admissions, Response No. 19 (Sept. 4, 2013).
lOS Deposition of David Briones at 29:22-31:17, 32:12-16 (Sept. 5,2013), attached as Ex. F; Deposition of Jukarylton
Brunson at 42:21-43:19 (Sept. 5, 2013), attached as Ex. J; lOS Deposition of Robert Olsen at 21:1-22 (Sept. 6,2013), attached
as Ex. P.
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 the crane, Hunt could stop Harrison's work.106 He further testified that both Hunt and Harrison "ha[d]
joint responsibility to make sure that the work being done on July

ih was done safely.,,107If a Hunt

representative saw something being performed unsafely, Hunt had the power to stop work.108Keller
stated that in his experience, a general contractor's duty is to make sure the subcontractor's work is
being done safely.109
Plaintiffs liability expert Jeff York concurred with OSHA's findings on violations and further
opines that Hunt, [t]he prime contractor for this project was ultimately responsible for monitoring the
JHA to ensure that all subcontractors comply and to provide a safe workplace.v '" 29 C.F.R. 1926.16
specifically states that while a contractor and subcontractors may make contractual arrangements
allocating certain responsibilities:
"[I]n no case shall the prime contractor be relieved of overall
responsibility for compliance. By contractor for full performance of a
contract... the prime contractor assumes all obligations prescribed as
employer obligations under the standards contained in this part ... Where
joint responsibility exists, both the prime contractor and his
subcontractor... shall be considered subject to the enforcement provisions
of the ACt."lll
York noted that the fact that the prime contractor's failure to recognize the excessive removal of
bolts proved that Hunt's supervision was not trained adequately to oversee this type of operation.i'f
York opines that Weaver's tragic death was caused by the negligence and gross negligence of Harrison
and Hunt, disregarding the manufacturers' manuals, the JHA, proper crane safety training, OSHA

Deposition ofJack Keller at 53: 16-23 (Feb. 10,2014), attached as Ex. H.
Deposition of Jack Keller at 53:5-13 (Feb. 10,2014), attached as Ex. H.
108 Deposition ofJackKeller
at 53:16-23 (Feb. 10,2014), attached as Ex. H.
109 Deposition of Jack Keller at 58: 13-25 (Feb. 10,2014), attached as Ex. H.
110 Expert Report of Jeff York at 4 (Mar. 3, 2014), attached as Ex. Q.
III Expert Report of Jeff York at 4 (Mar. 3, 2014), attached as Ex. Q, citing 29 C.F.R. 1926.16.
112 Expert Report ofJ eff York at 4 (Mar. 3, 2014), attached as Ex. Q.
106

107

13

 Subpart CC-Cranes and Derricks in Construction, ASME B30.3 and Hunt's own standard policies and
procedures.i':'
Hunt complains in its motion for summary judgment that the facts do not merit a jury question

on its liability. But as Plaintiffs demonstrate, the contractual documents, OSHA violations, expert
opinions, testimony of Harrison employees, and testimony of Hunt employees themselves make it clear
that Hunt is a proper defendant. Having retained and exercised control over Harrison's safety, Hunt
cannot now leap back and claim no responsibility. Plaintiffs respectfully request that the Court deny
Hunt's motion for summary judgment.

STANDARD OF REVIEW

Traditional Motion for Summary Judgment.
A defendant is entitled to summary judgment on a plaintiff s cause of action if the defendant can
disprove at least one element of the cause of action as a matter of law.'!" The defendant has the burden
of showing that no genuine issue of material fact exists and that he is entitled to summary judgment as a
matter of law.ll5 The Court must accept all evidence favorable to the plaintiff as true.116 Every
reasonable inference must be indulged in favor of the plaintiff and all doubts resolved in his favor.ll7
The plaintiff need not respond to the motion for summaryjudgment unless the movant meets its burden
of proof.lI8 But if the defendant meets its burden of proof, the plaintiff must present evidence to raise a
fact issue. 119

Expert Report of Jeff York at 4 (Mar. 3,2014), attached as Ex. Q.
Sw. Elec. Power Co. v. Grant, 73 S.W. 3d 211,215 (Tex. 2002).
115 Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,425 (Tex. 1997).
116 Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,548 (Tex. 1985).
117 Grinnell, 951 S.W.2d at 425.
118 Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d217, 222-23 (Tex. 1999).
119 Centeq Realty, Inc. v. Siegler, 899 S.W.2d 197 (Tex. 1995).
113

114

14

 No-Evidence Motion for Summary Judgment.
In a no-evidence motion for summary judgment, a defendant can challenge a plaintiff to produce
evidence to support one or more elements of the plaintiff's cause of action on which the plaintiff would
have the burden of proof at trial after an adequate time for discovery has passed.120 To avoid a no-

evidence summary judgment, the plaintiff is not required to marshal its proof; the plaintiff only needs to
point out evidence that raises a fact issue on the elements challenged in the defendant's mction.t" To
raise a genuine issue of material fact, the plaintiff must produce more than a scintilla of evidence in
support of the challenged elements.122 More than a scintilla of evidence is produced if the evidence is
sufficient to allow reasonable and fair-minded people to differ in their conclusions on whether the
challenged fact exists.123 In evaluating whether more than a scintilla of evidence exists, the court must
view the evidence in the light most favorable to the plaintiff, crediting evidence favorable to the plaintiff
if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. 124
Summary Judgment Evidence
Exhibit A:
Exhibit B:
Investigation
ExhibitC:
Exhibit D:
ExhibitE:
Exhibit F:
Exhibit G:
ExhibitH:
Exhibit I:
Exhibit J:
ExhibitK:
Exhibit L:
ExhibitM:
ExhibitN:

Terex Crane Incident Peiner SK415 Investigation Report
Hurst
Metallurgical Research Laboratory. Inc.

Preliminary

OSHA Citation and Notification of Penaltv
OSHA Investigation No. 508219 (Excerpts)
Deposition of Alberto Almoguerra
Deposition of David Briones
July 7, 2012 Photographs
Deposition o[Jack Keller
Harrison Crane & Hoist Job Hazard Analysis
Deposition o[Jukarylton Brunson
Terex Operating Maunal (Excerpts)
Meterologist Analysis and Meterological Variable Estimation
Subcontract Agreement
Section 01 35 23 Project Safety Requirements

Tex. R. Civ. P. 166a(i).
v. Wilson, 249 S.W.3d 425,426 (Tex. 2008).
122 Smith v. O'Donnel, 288 S.W.3d417, 424 (Tex. 2009); Ford Motor Co. v. Ridgway, 125 S.W.3d 598,600 (Tex. 2004).
123 Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,172 (Tex. 2003).
124 Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

120

121 Hamilton

15

 Exhibit 0:

Stage 1DemolitionlUtility Relocation Project Safety Program

Exhibit P:
Exhibit Q:

Deposition of Robert Olsen
Expert Report of Jeff York
ARGUMENTS ANDAUTHORITIES

Hunt makes a standard no-evidence motion for summary judgment and traditional motion for
summary judgment on negligence and gross negligence, but primarily focuses on the duty question.
Plaintiff will demonstrates that the duty question clearly weighs in Plaintiffs favor, as do the remaining
elements of negligence and gross negligence.
Hunt Retained and Exercised Control Over Harrison
Where a general contractor exercises "some control" - not even absolute or total control - over a
subcontractor's work, it owes that subcontractor's employees a commensurate duty of care to prevent
physical harm.125The question whether a contract gives the right of control is usually a question of law
for the court, while the issue of actual control is usually a question of fact for the jury. 126In the present
case, the Court will first easily see the contractual right of control as a question of law sufficient to deny
summary judgment, even setting aside the issue of actual control that is usually a fact question for the
jury. However, Plaintiffwill demonstrate both.
Retained Control
If a written contract assigns the right to control to the employer, then the plaintiff need not prove
an actual exercise of control to establish a duty.127The Restatement and the decisions applying it leave
no doubt that Hunt can be liable where it retained some control "to direct the order in which the work
shall be done or to forbid its being done in a manner likely to be dangerous to ... others" and failed to

125

Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688,699 (Tex. App.-Houston

bane),
126
127

Petri v. Kestrel Oil & Gas Properties, L.P., 878 F. Supp. 2d 744 (S.D. Tex. 2012).
See Pollard v. Mo. Pac. R.R. Co., 759 S.W.2d 670,670 (Tex. 1988) (per curiam).

16

[14th Dist.] 2004, pet. denied) (en

 exercise reasonable care in the exercising that control.128 See Hoechst-Celanese Corp. v. Mendez, 967
S.W.2d 354, 356-58 (Tex. 1998) ("[t]he duty under [Restatement of Torts (Second)] section 414 is
directed to employers who retain a control less than that which is necessary to subject him to liability as
a master").

Further, control based on a contract between a contractor and its subcontractor need not

even be exercised to satisfy the contractual control test. 129
In the present case, Hunt very clearly retained contractual control over the subcontractor's safety
efforts. In fact, it was required to do so as a part of its acquiring the UT Dallas job. The "Project Safety
Requirements" with UT Dallas required that "[t]he Contractor (Hunt) shall bear overall responsibility
for all aspects of safety at the Project.,,130 The project safety coordinator role for Hunt specifically
"include [d] authority to direct actions of subcontractors

and to stop work operation whenever any

worker is exposed to a risk that can be reduced or eliminated.v'<': Hunt stated that it would "not accept
substandard safety performance from any entity, either by group or individual, that would sacrifice the
safety of a worker,,,132 and that "[i]t shall be a goal of all levels of management and supervision to instill
a safety culture that will encourage all workers onside to take pride in the fact that they are on a project
that is committed to their safety.,,133 While Hunt now wishes to disclaim any responsibility
subcontractors,

for

at the time it bid for the UT Dallas job, Hunt specifically represented that, "[a]t

128 Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) ("[t]he general contractor's duty of care is
commensurate with the control it retains over the independent contractor's work"). The full text of comment (a) reads: "If the
employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to
liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of
Agency which deals with the relation of master and servant. The employer may, however, retain a control less than that
which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work
shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control
may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section
unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done
from causing injury to others." RESTATEMENT
(SECOND)
OFTORTS§414 cmt. a.
129 Abarca v. Scott Morgan Residential, Inc., 305 S.W.3d 110, 123 (Tex. App. - Houston [1st Dist.] 2009) ("[i]fthe right of
control over work details has a contractual basis, the circumstance that no actual control was exercised will not absolve the
general contractor ofliability").
130 Section 01 3523 - Project Safety Requirements at 1.4.1 (Apr. 20,2009), attached as Ex. N.
131 Section 01 3523 - Project Safety Requirements at 3.2.2 (Apr. 20,2009), attached as Ex. N.
132 Stage 1 Demolition / Utility Relocation Project Safety Program at "Forward" (JuI. 15,2011), attached as Ex. O.
133 Stage 1 Demolition / Utility Relocation Project Safety Program at "Forward" (JuI. 15,2011), attached as Ex. O.

17

 Hunt ... protecting the public, subcontractor employees, and our employees are the most important part of
any work we dO.,,134Hunt promised to "meet or exceed applicable standards, including ... Current OSHA
CFR 291926 including 11-8-2010 OSHA 1926.550 Update For Cranes.,,135
In its contract with Harrison, Hunt retained virtually every right that could be exercised over
subcontractor safety, including the powers to:

•
•
•

•
•
•
•
•
•

Order Harrison to remove any Harrison employee that Hunt deemed
to be uusatisfactoryrr'"
Approve Harrison's staff for the job after review of their
qua lif
I rca tiIOns;137
Require Harrison to submit a "submittal log and schedule, which
shall be updated weekly, showing the status of all required shop
drawings, samples, and other required submittals,,;138
Require Harrison to submit a safety plan;139
Order Harrison to stop any work that Hunt deems unsafe until
corrective measures acceptable to Hunt have been implementedr'<"
Modify the project schedule; 141
Require a daily report form completed every working day;142
Order Harrison to increase its manpower; 143and
Require drug testing. 144

Harrison was also required to submit a job safety/hazard analysis to Hunt prior to beginning
work on the crane.145 Hunt required subcontractors performing work of six feet or greater to develop a
separate written fall protection work plan "tailored to the scope of their work, identifying hazards and

Stage 1 Demolition / Utility Relocation Project Safety Program at 3 (Jul. 15,2011), attached as Ex. O.
Stage 1 Demolition / Utility Relocation Project Safety Program at 3 (Jul. 15,2011), attached as Ex. O.
136 Subcontract Agreement at 11.1(Nov. 7, 2011), attached as Ex. M.
137 Subcontract Agreement at 11.3 (Nov. 7, 2011), attached as Ex. M.
138 Subcontract Agreement at 12.1 (Nov. 7,2011), attached as Ex. M.
139 Subcontract Agreement at 25.1 (Nov. 7, 2011), attached as Ex. M.
140 Subcontract Agreement at 25.1 (Nov. 7,2011), attached as Ex. M (along with a self-serving sentence that exercise of this
control should not be construed as control).
141 Subcontract Agreement at 9.4 (Nov. 7,2011), attached as Ex. M.
142 Subcontract Agreement at 9.6 (Nov. 7, 2011), attached as Ex. M.
143 Subcontract Agreement at 9.7 (Nov. 7,2011), attached as Ex. M.
144 Subcontract Agreement at 25.5 (Nov. 7,2011), attached as Ex. M.
145 Deposition of David Briones at 67:22-25 (Sept. 5,2013), attached as Ex. F; Harrison Crane & Hoist Job Hazard Analysis
(July 7, 2012), attached at Ex. 1.
134

135

18

 abatement methods to be used related to that work.,,146 Without filling out a JSAIJHA, Hunt had the
ability to prevent its subcontractors from performing any work.147 Hunt admitted in discovery that it
retained the ability to terminate or remove subcontractors' employees due to a gross safety violation.148
Hunt further admitted that it had the ability to order Harrison to stop any work that Hunt deemed unsafe
until corrective measures acceptable to Hunt were implemented.l'"
Multiple

Hunt superintendents

subcontractor safety on this job.

had the duty to exercise

and did exercise

control over

The Hunt project manager had the responsibility under the project

safety program to review the Subcontractors

Site Safety Program, to be involved in each pre-

construction meeting, to identify hazards and review subcontractor safety programs (which must have
met or exceeded Hunt's,

UT Dallas's,

superintendent, Robert Olsen,
participate in pre-construction

lSI

the UT System, and OSHA requirements.t''P''

The Hunt

had the contractual responsibilities under the project safety program to

meetings with subcontractors; review subcontractor safety submittals;

discuss safety in weekly subcontractor progress meetings; and "assist in enforcing employee and
subcontractor

safety compliance.v'Y

Olsen admitted that one of his job duties was to monitor

subcontractors and stop work if it was being done in an unsafe manner.l " He specifically admitted he
had the duty and the authority to correct unsafe subcontractor behavior. 154
Hunt's assistant superintendent Briones emphasized that Hunt as the general contractor had the
right to stop work.ISS He specifically stated that where subcontractors acted in a wrong manner, it was

Stage 1 Demolition / Utility Relocation Project Safety Program at (Harrison 593) (Jul. 15,2011), attached as Ex. O.
Deposition of David Briones at 69:18-23 (Sept. 5,2013), attached as Ex. F.
148 Hunt's Objections and Responses to Plaintiffs' First Request for Admissions, Response No. 10 (Sept. 4, 2013).
149 Hunt's Objections and Responses to Plaintiffs' First Request for Admissions, Response No. 19 (Sept. 4, 2013).
150 Stage 1 Demolition / Utility Relocation Project Safety Program at 6 (Jul. 15,2011), attached as Ex. O.
151 Deposition of Robert Olsen at 11:3-7 (Sept. 6, 2013), attached as Ex. P.
152 Stage 1 Demolition / Utility Relocation Project Safety Program at 7 (JuI. 15, 2011), attached as Ex. O.
153 Deposition of Robert Olsen at 16:10-18 (Sept. 6, 2013), attached as Ex. P.
154 Deposition of Robert Olsen at 16:24-17:6 (Sept. 6,2013), attached as Ex. P.
155 Deposition of David Briones at 77:8-18 (Sept. 5, 2013), attached as Ex. F.
146

147

19

 Hunt's "duty" and "job" to correct it.156Briones admitted that as a Hunt Supervisor, it was part of his
job "to see that OSHA rules and regulations were followed by the subcontractors on the job site when
known.157 It was also part of his job as he walked through the job site to "look for dangers or violations

of OSHA rules and regulations," at which time he would immediately go to them and make them stop

And Harrison knew that Hunt retained all these rights. Harrison's assembly/disassembly director
Keller emphasized that he understood if a Hunt safety representative saw something being done unsafely
with the dismantling of the crane, Hunt could stop Harrison's work.159He further testified that both Hunt
and Harrison "ha[d] joint responsibility to make sure that the work being done on July ih was done
safely.,,160If a Hunt representative saw something being performed unsafely, Hunt had the power to stop
work.161Keller stated that in his experience, a general contractor's duty is to make sure the
subcontractor's work is being done safely,162and clearly this job was consistent with that experience.
After review of this testimony, Plaintiffs liability expert Jeff York concurred with OSHA's
findings on violations and further opined that Hunt, "[t]he prime contractor for this project was
ultimately responsible for monitoring the JHA to ensure that all subcontractors comply and to provide a
safe workplace.,,16329 C.F.R. 1926.16 specifically states that while a contractor and subcontractors may
make contractual arrangements allocating certain responsibilities:
"[I]n no case shall the prime contractor be relieved of overall
responsibility for compliance. By contractor for full performance of a
contract ... the prime contractor assumes all obligations prescribed as
employer obligations under the standards contained in this part ... Where
joint responsibility exists, both the pnme contractor and his
Deposition of David Briones at 19:15-20:1,20:15-18 (Sept. 5,2013), attached as Ex. F.
Deposition of David Briones 92:5-19 (Sept. 5, 2013), attached as Ex. F.
158 Deposition of David Briones 92:24-93:5 (Sept. 5,2013), attached as Ex. F.
159 Deposition ofJack Keller at 53:16-23 (Feb. 10,2014), attached as Ex. H.
160 Deposition of Jack Keller at 53:5-13 (Feb. 10,2014), attached as Ex. H.
161 Deposition of Jack Keller at 53:16-23 (Feb. 10,2014), attached as Ex. H.
162 Deposition ofJack Keller at 58:13-25 (Feb. 10,2014), attached as Ex. H.
163 Expert Report ofJeffYork at 4 (Mar. 3,2014), attached as Ex. Q.
156
157

20

 subcontractor. .. shall be considered subject to the enforcement provisions
of the ACt.,,164

The contractual documents, Hunt's policies, and the testimony of the involved parties makes it
clear that Hunt retained control over Harrison's

safety program, including

dismantling of the crane (given the JHA submission).

specifically

over the

As a result, Hunt clearly had a duty to Terry

Weaver to act reasonably in the exercise of that duty.
Hunt Exercised Control

It is clear that Hunt retained control over Harrison's safety program on the dismantling of the

crane, which is sufficient to defeat summary judgment. However, even further - Hunt exercised that
control, as the testimony of its employees demonstrates. Jukarylton Brunson, safety manager with
Hunt,165admitted that his daily inspection of a work site is to "mak[e] sure that everybody is following
the rules ...jobsite rules ... OSHA regulations, company policies, things like that.,,166 He specifically
stated, "[a]gain, I do monitor the work of the subcontractors onsite.,,167He emphasized when he ensures
that workers are following the rules that he meant "everybody that walks onsite," not merely Hunt
employees.168He specifically stated that this included the subcontractors and the work that they were
performing, as well as whether the job in general was OSHA-compliant.169Brunson testified that Hunt
conducted a daily safety orientation for all contractors.170Brunson also testified that he reviewed the job
hazard analysis to make sure it is "what [he] consider[s] complete.,,171 Not only that, but Brunmson
would, "[a]fter orientation, again, walk the project, just making sure that ... all the rules are being

Expert Report of Jeff York at 4 (Mar. 3, 2014), attached as Ex. Q, citing 29 C.F.R. 1926.l6.
Deposition of Jukarylton Brunson at 12:20-24 (Sept. 5, 2013), attached as Ex. J.
166 Deposition of Jukarylton Brunson at 15:8-13 (Sept. 5,2013), attached as Ex. J.
167 Deposition of Jukarylton Brunson at 32:21-25 (Sept. 5,2013), attached as Ex. J.
168 Deposition ofJukarylton Brunson at 16:14-18 (Sept. 5,2013), attached as Ex. J.
169 Deposition of Jukarylton Brunson at 16:19-25 (Sept. 5, 2013), attached as Ex. J.
170 Deposition of Jukarylton Brunson at 19:12-20:8 (Sept. 5,2013), attached as Ex. J.
171 Deposition ofJukarylton Brunson at 21:3-10 (Sept. 5,2013), attached as Ex. J.
164
165

21

 followed.,,172 If Brunson saw a contractor doing something unsafe or not presented in a JHA, Brunson
had the authority to tell them to stop work immediately.l''

Brunson admitted that he exercised that

control in that ifhe saw a subcontractor's employee violating OSHA rules creating a danger like a major
fall hazard, he would instruct them to stop.174 In fact, Hunt actually did stop Harrison from working on
this crane at one point because Keller as Harrison's safety representative was not present.

175

Similarly, David Briones, assistant superintendent for this job at Hunt/76 acknowledged that his
job for Hunt was to "coordinate subcontractors," "schedule activities on the job site," communicate with
representatives from the subcontractor, tell the subcontractors "when to start, where to start, ... what
specific tasks we want in each area, the amount of manpower ... ," and importantly, to "determin[e]
whether or not the conditions of the work site were safe for work to be done that day."l77
Further, Hunt required Harrison to prepare a site-specific safety plan.178 The JHS were to be
used "to assure each different type of work task is performed safely.,,179 Hunt also conducted a meeting
with Harrison specifically about its safety rules in dismantling a crane.180
Hunt also exercised
dismantling tower cranes.
photographs

control over weather monitoring,

a crucial safety step

III

OSHA noted that "dark clouds" were visible as early as 3:06 pm

III

of the dismantling

which

IS

in the very pictures Hunt agents tookl8l

OSHA's

investigation

Deposition of Jukarylton Brunson at 24:4-13 (Sept. 5, 2013), attached as Ex. 1.
Deposition ofJukarylton Brunson at 34: 1-15 (Sept. 5,2013), attached as Ex. 1.
174 Deposition of Jukarylton Brunson at 123:4-21 (Sept. 5,2013), attached as Ex. J.
175 Deposition of David Briones at 29:22-31:17, 32:12-16 (Sept. 5, 2013), attached as Ex. F; Deposition of Jukarylton
Brunson at 42:21-43:19 (Sept. 5, 2013), attached as Ex. J; 175 Deposition of Robert Olsen at 21:1-22 (Sept. 6, 2013), attached
as Ex. P.
176 Deposition of David Briones at 12:22-13:4 (Sept. 5,2013), attached as Ex. F.
177 Deposition of David Briones at 13:5-19 (Sept. 5, 2013), attached as Ex. F.
178 Deposition of David Briones at 71:16-72:5 (Sept. 5,2013), attached as Ex. F.
179 Stage 1 Demolition / Utility Relocation Project SafetyProgram at 12 (Jul. 15, 2011), attached as Ex. O.
180 Deposition of Jack Keller at 63:6-11 (Feb. 10,2014), attached as Ex. H.
181 OSHA Investigation No. 508219 at "Photograph Mounting Sheet", (excerpts) attached as Ex. D.
172
173

22

 demonstrated that by 3:09 pm, "clouds had moved into the area and the sky was dark.,,182 There was
never an instruction to cease work prior to the tower crane collapse.
Hunt agents were responsible for monitoring the weather.183 Hunt did monitor the weather
immediately before and in fact during the crane falling.l'" Immediately before the Crane fell, David
Briones, assistant superintendent for this job at Hunt Construction.i'"

observed dark clouds rolling into

the work area.186 Photographs Briones took at the scene depict these dark clouds.18? Hunt protocol

required that operations were supposed to stop in the event of rain or wind.188Briones agreed that it was
important to "continually monitor the weather in order to determine whether or not crane operation
could continue.,,189Jukarylton Brunson, safety manager with Hunt,190first noticed the weather because
"dirt was flying by" the window of his office.191He noticed a "pretty heavy wind pick up" and then saw
the tower crane fall.192 Brunson indicated that Hunt first noticed the change in weather immediately
before the crane's fall; however, Keller testified that the conversation with Hunt about the weather took
place more than an hour prior to the collapse.193Harrison employees affirmed that Brunson (with Hunt)
was responsible for monitoring the weather.194However, no action was taken until it was too late.
On multiple fronts, Hunt exercised control over Harrison's safety programs, and cannot now step
away from the results of its action. Having retained and exercised control, Hunt had a duty to exercise
that control reasonably.

182OSHA Investigation No. 508219 at 4, (excerpts) attached as Ex. D.
183Deposition of Jack Keller at 49:22-50:4 (Feb. 10,2014), attached as Ex. H; Deposition of Alberto Almoguerra at 95:1796:2,128:21-129:11,29:13-16,130:15-18 (Feb. 10,2014), attached as Ex. E.
184Deposition of David Briones at 44: 1-19 (Sept. 5,2013), attached as Ex. F.
185Deposition of David Briones at 12:22-13:4 (Sept. 5,2013), attached as Ex. F.
186Deposition of David Briones at 46:4-10 (Sept. 5,2013), attached as Ex. F.
187Deposition of David Briones at 55:12-18 (Sept. 5,2013), attached as Ex. F.
188Deposition of David Briones at 75:2-12 (Sept. 5, 2013), attached as Ex. F.
189Deposition of David Briones at 78:19-22 (Sept. 5,2013), attached as Ex. F.
190Deposition of Jukarylton Brunson at 12:20-24 (Sept. 5,2013), attached as Ex. J.
191Deposition ofJukarylton Brunson at 57:21-22 (Sept. 5,2013), attached as Ex. J.
192Deposition of Jukarylton Brunson at 60:1-23 (Sept. 5,2013), attached as Ex. J.
193Deposition ofJack Keller at 78:9-25 (Feb. 10,2014), attached as Ex. H.
194Deposition of Alberto Almoguerra at 95:17-96:2, 128:21-129:11,29: 13-16,130:15-18 (Feb. 10,2014), attached as Ex. E.

23

 Hunt Breached its Duties

Hunt did not exercise its duties reasonably. No written procedures were provided to the Harrison
laborers for proper disassembly of the crane by Hunt.195 lack Keller, Harrison's crane dismantling
supervisor, did not recall Hunt inquiring about whether Harrison's agents were trained at all on the new
OSHA regulations applying to dismantling the crane.l96

However, Briones (Hunt's own assistant

superintendent) also acknowledged that he had not even read Hunt's own safety manual or undergone
any training on the safety manual. 197 Briones admitted that there was no excuse for not following OSHA
regulations or Hunt safety regulations. 198 Plaintiff s liability expert York agreed, noting that the fact
that the prime contractor's failure to recognize the excessive removal of bolts proved that Hunt's
supervision was not trained adequately to oversee this type of operation.199 York opines that Weaver's
tragic death was caused by the negligence and gross negligence of Harrison and Hunt, disregarding the
manufacturers' manuals, the IHA, proper crane safety training, OSHA Subpart CC-Cranes and Derricks
in Construction, ASME B30.3 and Hunt's own standard policies and procedures_zoo A job hazard
analysis ("IHA") was in fact submitted to Hunt by Harrison for the dismantling of the subject crane.i'"
This IHA specifically referenced "untorquing" of the bolts, and referred to the manufacturer's manual
for the tower crane.202 The operating manual for this crane provides instructions on the dismantling of
the tower sections.203 This manufacturer's manual for the tower crane was actually kept in Hunt's safety
manager's office_2°4OSHA noted that the manufacturer instructs that "the connecting elements (mast

Hurt Metallurgical Research Laboratory, Inc. Preliminary Investigation at ~1.4 , attached as Ex. B.
Deposition of Jack Keller at 45:2-10 (Feb. 10,2014), attached as Ex. H.
197 Deposition of David Briones at 96: 11-19 (Sept. 5, 2013), attached as Ex. F.
198 Deposition of David Briones 138: 17-139:2 (Sept. 5,2013), attached as Ex. F.
199 Expert Report of Jeff York at 4 (Mar. 3, 2014), attached as Ex. Q.
200 Expert Report ofJeffYork
at 4 (Mar. 3, 2014), attached as Ex. Q.
201 Ex. 3 to Brunson's Depo.
202 Deposition of Jukarylton Brunson at 30: 16-31:9 (Sept. 5,2013), attached as Ex. 1.
203 Terex Operating Manual at 08.64 (Harrison 458), (excerpts) attached as Ex. K.
204 Deposition of Jukary lton Brunson at 107:7-9 (Sept. 5, 2013), attached as Ex. 1.
195
196

24

 bolts) are to be removed between the tower section which is to be dismantled and the tower section
which is placed underneath," which obviously would have prevented Mr. Weaver's death_2°5 Rather
than reasonably exercising its duties to provide a safe workplace, Hunt kept its head in the sand until it
was too late.
Causation

Hunt only challenges causation in a brief one-line portion of its no-evidence motion for summary
judgment, and does not mount any significant opposition to causation in its motion. Proximate causation
embraces two concepts, both of which must be present: the cause-in-fact of an event and the
foreseeability of that event.206 Cause-in-fact is established when the act or omission was a substantial
factor in bringing about the injuries, and without it, the harm would not have occurred.r'" Because the
foreseeability prong of proximate cause is inherently a matter to be left to the fact finder, it is
problematic for summary judgment review_2°8 "Whether a particular act of negligence is a cause-infact of an injury is a particularly apt question for jury determination.,,209Causation does not have to be
supported by direct evidence; circumstantial evidence and inferences drawn therefrom will sufficiently
support a finding of causation.r'" The trier of fact is afforded broad latitude to infer proximate cause
from the evidence and circumstances surrounding an accident, especially when it is not possible to
produce direct proof of proximate cause.211

OSHA Investigation No. 508219 at 4, (excerpts) attached as Ex. D.
Farley v. M M Cattle Co., 529 S.W.2d 751,755 (Tex. 1975).
207 Doe v. Boys Clubs a/Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Union Pump Co. v. Allbritton, 898 S.W.2d
773, 775 (Tex. 1995).
208 Taylor v. Southwestern Bell Tel. Co., 483 S.W.2d 330, 332 (Tex. Civ. App.-EI Paso 1972, no writ); Hall v. Huff, 957
S.W.2d 90,96 (Tex. App.-Texarkana 1997, pet. denied).
209 Rio Grande Reg'! Hosp., Inc. v. Villarreal, 329 S.W.3d 594,608 (Tex. Civ. App.-Corpus
Christi 2010, pet. granted),
citing Farley v. MM Cattle Co., 529 S.W.2d 751, 756 (Tex. 1975) and Tex. Dep 't of Transp. v. Pate, 170 S.W.3d 840, 848
(Tex. App.- Texarkana 2005, pet. denied).
210 See Havner v. E Z Mart Stores, Inc., 825 S.W.2d 456,.459 (Tex. 1992); City a/Gladewater v. Pike, 727 S.W.2d 514,518
(Tex. 1987).
2ll JK & Susie WadleyResearch lnst. & Blood Bank v. Beeson, 835 S.W.2d 689,698 (Tex. App.-Dallas
1992,writ denied)
(citing Harris v. Laquinta-Redbird Joint Venture, 522 S.W.2d 232, 236 (Tex. Civ. App.- Texarkana 1975, writ ref'd n.r.e.)).
205
206

25

 Further, more than one action may be the proximate cause of the same injury_212Negligence of
one does not excuse the negligence of another. 213 Where both the actor's negligent conduct and that of a
third person bring about the injury, the rule of concurrent causation applies.r'" All persons who
contribute to the injury are liable. Berry Property Management, Inc. v. Bliskey, 850 S.W.2d 644, 655
(Tex. Civ. App.-Corpus

Christi 1993, writ dism'd by agr.).215

After its own investigation, OSHA found several violations causative to these deaths, including:

•
•
•
•

A serious violation that the assembly/disassembly director supervising the
assembly/disassembly operation did not address the hazards associated
with the operation, including the effect of wind speed and weather on the
.
216
equipment;
A serious violation for failure to use manufacturer procedures for
assembly/disassembly,
which did not prevent unintended dangerous
movement and collapse of the mast, provide adequate support and stability
to the mast, or minimize workers' exposure to collapse of the crane;217and
A serious violation for using employer procedures not developed by a
qualified person (a professional engineer, including an engineering
analysis of all existing and potential forces).218
Serious violation for failure to train workers regarding the re~uirements
of OSHA crane regulations applicable to their respective roles;"

As demonstrated above, Hunt retained control over each of these issues and breached its duties to
reasonably exercise that control. Those breaches caused Terry Weaver's death, as OSHA found.

212

Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 793 (Tex. Civ. App.- Tyler 1995, writ denied).

Id.; RESTATEMENT
(SECOND)OFTORTS § 439 (1977).
See Atchison v. Texas & Pac. Ry., 143 Tex. 466, 186 S.W.2d 228,231 (1945).
215 Berry Property Management, Inc. v. Bliskey, 850 S.W.2d 644,655 (Tex. Civ. App.-Corpus
Christi 1993, writ dism'd by
agr.). While Hunt did not raise the issue of intervening or superseding cause, "[t]he intervening cause of the plaintiffs
injuries, even if unforeseeable, may be a concurring cause if the chain of causation flowing from the defendant's original
negligence is continuous and unbroken." Henry v. Houston Lighting & Power Co., 934 S.W.2d 748, 753 (Tex. App.Houston [1 st Dist.] 1996, writ denied). Further, the Texas Supreme Court has consistently held that the intervention of an
even unforeseen or unexpected cause will not be sufficient to relieve the original wrongdoer from the natural consequences of
their negligence if, "such negligence directly and proximately co-operates with the other cause of the resulting injury"
McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442,448 (1941); Atchison v. Texas & Pacific Ry. Railroad Co, 143
Tex. 466, 186 S.W.2d 228,232 (1944).
216 OSHA Citation and Notification of Penalty at 6 (Nov. 20, 2012), attached as Ex. C.
217 OSHA Citation and Notification of Penalty at 7-9 (Nov. 20,2012),
attached as Ex. C.
218 OSHA Citation and Notification of Penalty at 10 (Nov. 20, 2012), attached as Ex. C; OSHA Investigation No. 508219 at
2, (excerpts) attached as Ex. D.
219 OSHA Citation and Notification of Penalty at 11 (Nov. 20, 2012), attached as Ex. C.
213

214

26

 As to damages, while Hunt refers to Plaintiffs

"claimed injuries,,,22o there is no question that

Terry Weaver suffered a terrible and gruesome death as a result of this crane collapse.

Hunt's motion

for summary judgment on damages is without merit, to say the least.
Gross Negligence

Hunt's [mal ground for summary judgment is one sentence stating in essence that, "... [b]ecause
summary judgment in favor of Defendant is proper on the negligence claims, summary judgment in
Defendant's favor (sic) on the gross negligence claims as well." See Hunt's Motion at 5, 8-9. Hunt did
not specifically challenge any elements of Plaintiff s gross negligence claim as required by the rule, and
thus Hunt's no-evidence motion for summary judgment on gross negligence is invalid_221Hunt's
argument appeared not to be that its conduct did not reach the level of gross negligence, but that because
the Court should dismiss Plaintiffs negligence claims on duty grounds, the gross negligence claims
should also be dismissed in a sort of domino train.

However, as demonstrated supra, Plaintiffs'

negligence claims must survive summary judgment, Plaintiffs' gross negligence claims must survive
summary judgment as well.
Prayer
WHEREFORE, Plaintiffs respectfully pray that after review of the pleadings, authorities of law,
and evidence, that the Court deny Hunt's Motion and grant such other and further relief to which
Plaintiffs may be justly entitled.

220
221

Hunt's Motion at 5.
Tex. R. Civ. Pro. 166a(i) ("The motion must state the elements as to which there is no evidence.").

27

 Respectfully submitted,

*

PROVOST
UMPHREY LAW FIRM, L.L.P.
490 Park Street
P.O. Box 4905
Beaumont, Texas 77704
(409) 835-6000
Telecopier: (409) 813-8605

State Bar No. 24060582
RONNIE TURNER, JR.
State Bar No. 24075533
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE

OF SERVICE

I HEREBY CERTIFY that a true and correct copy
furnished to all known counsel of record via EFILE on .,

0

,---""'''''---=

28

 "PROVOST
~"':'Is. iIIIl

II

LAW

*

UMPHREY

FIRM

L.L.P.

JENNIFER JOB SEALE
ATTORNEY

April 21, 2014
Mr. Gary Fitzsimmons
District Clerk, Dallas County
600 Commerce Street, Suite 103
Dallas,Texas 75202
Re:

VIAEFILE

Cause No. DC-1211591; Tammy Weaver, Individuallyand as Representative of the Estate of
Terry Weaver, Deceased and Derek Weaver vs. Harrison Hoist, Inc., doing business as
Harrison Crane & Hoist, Inc., Hunt Construction Group; In the 68th District Court of Dallas
County, Texas

Dear Mr. Fitzsimmons:
Enclosed please find Plaintiffs' Response to Defendant Hunt Construction Group's Hybrid
Motion for Summary Judgment.
By copy of this letter, all known counsel of record is being provided with a copy of same.
Thank you for your cooperation in this matter.

JJS:gm
Enclosures
Pc:

Mr. Mike Miller (VIA EFILE)
Mr. John Pease (VIA EFILE)
Mr. Rick Freeman (VIA EFILE)

490 PARK STREET
409-835-6000

•

P.O. BOX 4905
• 1-800-289-0101

jseale@pulf.com
Beaumont,

•

BEAUMONT, TEXAS 77704
• FAX409-838-8888

• www.provostumphrey.com

TX • Houston, TX • Nashville, TN • North Little Rock, AR
®~142-'