Brown & Gay Engineering, Inc. v. Zuleima Olivares, Individually and as the Representative of the Estate of Pedro Olivares, Jr., & Pedro Olivares
461 S.W.3d 117
| Tex. | 2015Background
- Fort Bend County Toll Road Authority (a local government corporation) contracted Brown & Gay to design Tollway signage and traffic layouts; the Authority had no full-time employees and retained oversight but not control of design details.
- On Jan. 1, 2007 an intoxicated driver entered an exit ramp and collided with Pedro Olivares, Jr., who died; plaintiffs sued the Authority and Brown & Gay alleging negligent design/placement of signs and traffic-control devices.
- The Authority successfully asserted governmental immunity on interlocutory appeal and was later nonsuited; Brown & Gay moved to dismiss claiming it was entitled to the Authority’s sovereign immunity as a contractor.
- Trial court granted Brown & Gay’s plea to the jurisdiction; the court of appeals reversed, holding Brown & Gay was an independent contractor not covered by the Texas Tort Claims Act employee definition and therefore not immune.
- The Texas Supreme Court considered whether private contractors exercising independent discretion may claim sovereign immunity enjoyed by the government and ultimately held they may not where the alleged negligence arises from the contractor’s own discretionary acts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a private contractor performing authorized governmental functions may assert the government’s sovereign immunity from suit | Olivares: Contractor is not the government; plaintiffs can sue Brown & Gay for its independent negligence | Brown & Gay: Should share Authority’s immunity because performing functions the Authority could have performed and immunity should follow function | Held: No — sovereign immunity does not extend to private contractors for their independent discretionary acts |
| Whether statutory gaps or legislative extensions imply contractors are entitled to common-law sovereign immunity | Olivares: Legislative extensions in limited contexts show immunity is statutory and limited; absence of grant implies no immunity | Brown & Gay: Some statutes denying immunity imply immunity otherwise extends to contractors | Held: Irrelevant — sovereign immunity is a common-law doctrine for courts to define; absence of statute does not create contractor immunity |
| Whether doctrines like qualified or official immunity support extending sovereign immunity to contractors | Olivares: Qualified/official immunity are distinct and protect individuals, not contractors; do not justify extending sovereign immunity | Brown & Gay: Filarsky and related doctrines show nonpermanent government actors get immunities to avoid timidity and attract talent | Held: Rejected — qualified/official immunities are distinct, federal qualified immunity protects officials’ personal liability not public treasury, and do not justify extending sovereign immunity to contractors |
| Whether government control or compliance with specifications can make a contractor effectively the government for immunity purposes | Olivares: Brown & Gay exercised independent discretion in design, so decisions were its own | Brown & Gay: Authority authorized the work; if government would be immune for same acts, contractor should be immune | Held: Where contractor acts under government direction with no independent discretion (or simply implements specifications), immunity may attach; but here Brown & Gay retained discretion, so no immunity |
Key Cases Cited
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (discussing sovereign/governmental immunity and legislative waiver)
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (judiciary defines immunity boundaries; Legislature waives immunity)
- K.D.F. v. Rex, 878 S.W.2d 589 (Tex. 1994) (private actor entitled to immunity only when acting as government and subject to government control)
- Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940) (contractor immune where harm flows from government decision/project, not contractor’s independent negligence)
- Filarsky v. Delia, 132 S. Ct. 1657 (U.S. 2012) (qualified-immunity analysis for nonpermanent government hires; distinct from sovereign immunity)
- Ackerson v. Bean Dredging LLC, 589 F.3d 196 (5th Cir. 2009) (Yearsley framework applied to federal contractors; immunity if suit challenges government policy rather than contractor’s independent acts)