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Click here for the full text of this decision FACTS:At approximately 8:30 p.m. on a clear and dry September 1997 evening, Rebecca Ramos drove from her home to the home of her parents-in-law to pick up her three-year-old son, Randy Ramos Jr. Eighteen-month-old Erika Ramos was in the front passenger seat. Upon leaving her in-laws’ house, Rebecca placed both children in the front passenger seat and drove back to her house. Rebecca was driving north on Highway 281. At about 9:00 p.m., 18-year-old Melinda Garcia was driving on a road that intersected Highway 281. She collided with the Ramos car. All passengers received minor injuries except Erika, who sustained severe injuries when the passenger-side air bag deployed. Erika’s injuries included a broken neck, severed spinal cord, and severe loss of blood and oxygen to her brain. At the time of the accident, a portion of Highway 281, including the intersection at which the accident occurred, was under construction. The Texas Department of Transportation (“TexDOT”) had contracted with Bay, Inc., to perform the construction work. Following the accident, the plaintiffs and Garcia sued Bay in 1998. Trial commenced in January 2000 and ended with a verdict in favor of the plaintiffs, although the jury apportioned liability 40 percent to Rebecca, 30 percent to Garcia, and 30 percent to Bay. The jury awarded $4 million in past and future medical expenses and no other damages to Erika; $10,000 in pain and mental anguish to Randy Jr.; $30,000 each to Rebecca and Randy in past damages for loss of filial consortium; and no damages to Garcia. Plaintiffs moved for a mistrial, which was granted. A second trial commenced in December 2001 and ended with a verdict in favor of the plaintiffs and Garcia. This time, though, the jury found Bay 100% liable and awarded over $62 million (including interest) to the plaintiffs and Garcia. Bay appeals. HOLDING:Reversed and remanded. Bay does not contend it is a “governmental unit,” or an employee or agent of the state, and it does not deny that it is an independent contractor. Instead, Bay’s argument relies entirely on the discretionary function of the state with regard to highway construction. Bay asserts that the state’s immunity is not waived for discretionary decisions such as highway design, traffic control, and the installation of safety features, such as guardrails and barricades. Bay contends that the Texas Department of Transportation “dictated” the manner in which Bay would perform its highway construction work for the State. Thus, Bay concludes, because it did no more than follow TexDOT’s plans and specifications, it is entitled to share in the immunity enjoyed by the state and its agencies such as TexDOT. No one disputes that TexDOT provided the traffic control plan or that Bay was required to comply with the plan. No one disputes that Bay had to obtain TexDOT’s approval to deviate in any significant way from the plan. Nevertheless, according to a TexDOT representative and a Bay employee, Bay had an obligation to maintain the safety of the construction site; inspect the site to ensure that the traffic control plan, as outlined on paper, was safe once it was in place; and to make any immediate changes as called for by the circumstances. The court holds the evidence is sufficient to support a finding that Bay had control over the placement of the barriers, signs, and barricades when the traveling public’s safety was at issue. Merely because Bay engaged in an activity that is highly regulated by a state agency does not necessarily place it under that agency’s control and direction for purposes of the Texas Tort Claims Act. Courts should be “careful not to extend the blanket of sovereign immunity to every entity which at first blush exhibits the characteristics of a governmental unit.” Alamo Workforce Dev. Inc. v. Vann, 21 S.W.3d 428 (Tex. App. � San Antonio 2000, no pet.). Because Bay’s own activities involved considerable discretion, it had control over the barricades. Accordingly, Bay was not entitled to either sovereign or official immunity. However, because the evidence is insufficient to support a finding that Rebecca Ramos was not negligent, the court reverses the trial court’s judgment and remands the cause for further proceedings. OPINION:Marion, J., delivered the court’s opinion. CONCURRENCE AND DISSENT:Stone, J.; Lopez and Speedlin, JJ., join. “The record contains no evidence that Rebecca was legally obligated to place her young children in the back seat of the car. Nor is there any evidence that in 1997 a person of ordinary prudence would not have placed two young children in the front seat of a car, or that in 1997 a person of ordinary prudence would have foreseen that the failure to place children in the back seat would or could lead to the type of devastating injuries suffered by Erika. The jury determined that Rebecca was not negligent, and although we may sharply disagree with the jury’s conclusion, based on this record, we are not free to disregard their conclusion. See Cruz ex. rel. Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 646 (Tex. App. � El Paso 2001, pet. denied)(refusing to sit as thirteenth juror); Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 108 (Tex. App. � San Antonio 2000, pet. dism’d by agr.)(same). For this reason, I respectfully dissent from the portion of the majority opinion and judgment which reverses and remands the cause for a new trial. I concur in all other regards.”

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