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Click here for the full text of this decision FACTS:Price Construction Inc. appeals from a judgment in favor of plaintiffs, Minerva Castillo, individually, and as next friend of Stephanie Castillo and Daisy Jovita Castillo, minors, and as representative of the estate of Roberto Castillo, Felix Castillo, and Hermelinda Castillo. HOLDING:Reversed and rendered that plaintiffs take nothing. The trial court submitted this case to the jury under the legal theory that Castillo was a licensee. Neither party on appeal challenges the submission of the case on the licensee theory or the definition of a licensee in the jury charge. Accordingly, this case was submitted under the theory that Price had a duty not to injure Castillo by willful, wanton, or grossly negligent conduct and to use ordinary care either to warn Castillo of, or to make reasonably safe, a dangerous condition of which Price was aware and Castillo was not. State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235 (Tex. 1992). It was undisputed that Price did not injure Castillo by willful, wanton, or grossly negligent conduct. Therefore, to prevail, the plaintiffs were required to establish: 1. the condition of the premises posed an unreasonable risk of harm to Castillo; 2. Price had actual knowledge of the defective condition; 3. Castillo had no knowledge of the defective condition; 4. Price failed to exercise ordinary care to protect Castillo from danger; and 5. such failure was a proximate cause of injury to Castillo. The plaintiffs introduced into evidence a series of TxDOT inspection reports from the fall of 1999 to Aug. 15, 2000, which detailed specific deficiencies for the entire 2.25-mile construction project. Neither the jury nor this court can make a determination from the inspection reports that Price had actual knowledge of the three deficiencies cited by the plaintiffs’ experts as causing this accident, either individually or collectively. Additionally, no one testified that Price had been told about the claimed dangerous conditions in the southbound lane of traffic near the intersection where Castillo and Carol Sunderland collided. There was no evidence of previous collisions at or near this intersection. The plaintiffs’ two experts testified the construction site posed an unreasonable risk of harm to Castillo and Sunderland. They did not, and could not, testify that Price knew of the problems and an unreasonable risk of harm. While police chief Juan Castaneda testified he had a pre-construction meeting concerning the general safety of the site, there was absolutely no evidence that Castaneda’s concerns were brought to Price’s attention or that his concerns dealt with the specific intersection at issue in this case. In addition, while Castaneda testified that he instructed one of his officers to tell “whoever was in charge there” to clean the barrels, there is no evidence that person ever spoke to a Price representative before the accident. The plaintiffs’ experts and other witnesses did not testify that dirty barrels caused this accident. Even when viewed in the light most favorable to the plaintiffs, the evidence is legally insufficient to support the jury’s finding of actual knowledge by Price. OPINION:Phylis J. Speedlin, J.; Duncan, Marion and Speedlin, JJ.

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