Travis County Commissioners Court
March 1, 2005
Item 20
Number 20 is to reconsider and take appropriate action on property liability claims from mary rose fisher.
>> I move to reconsider. Do we need to --
>> we do. I second. Discussion? That passes by unanimous vote.
>> good morning, judge, economics.
>> mr. Fisher is here? Please come forward before we get to you real soon. Let's lay this out from our perspective, then mr. Fisher, then we will see if there's any additional responses.
>> two weeks ago we presented this claim for property damage to the court. And with the recommendation for denial based on two owe two as -- two aspects. One is the immunity that we have for such instances under the Texas tort claims act. The other is that the project that was on elroy road where this claim occurred was conducted within the scope of procedures that t.n.r. Practices on such construction sites. We have howard heron from t.n.r. That can answer your questions or he will brailt on that process as well. We continued to make the recommendation that this claim be denied for those reasons.
>> can you remind of us -- us of how this accident occurred and if you can explain it, why it occurred.
>> the -- it -- it actually -- the incident is a property damage where -- where oil was -- was earth sprayed on or somehow was -- was brought on to -- to mr. Fisher's vehicle, the bottom part of mr. Fisher's vehicle, there was an oil spray that was being applied to elroy road, but there were proper signage and procedures being followed so that the damages being claimed are to clean or repair damage to the vehicle that was caused by oil that was thrown up on the vehicle or sprayed on the vehicle.
>> anything in addition --
>> I believe the question that was asked originally was the dates of emulsification of the asphalt. We have indicated the dates of application, when the signs were installed and as they were maintained throughout the process of the project.
>> what is the date of application.
>> the dates of application are numerous throughout the project. The project began June 21st and that's when the signs were first posted. The preliminary site preparation was conducted during that time and the first oil applications were applied beginning on the first week of July, July 6th. And then continuous through -- through July 14th, 15th, a small date break in between of two or three days, returned again on the 20th, and again in the first week of -- of August. So there were numerous applications of emulsified as faults, between those applications was numerous applications of water in the process of base material that's applied. That water is delivered in the same emulsified trucks that bring out the asphalt itself. So there's a contamination of the water in the process with residual amounts of asphalt on those trucks, so those signs remain in place throughout the whole process because of the ongoing applications of water and asphalt.
>> what did the signs say?
>> the signs were in compliance with the Texas manual uniform traffic control devices, they indicated a construction work zone and fresh oil was on the site. It will say fresh oil.
>> sign said fresh oil.
>> the sign says fresh oil as one of the signs that are installed in regard to the advanced warning construction work zone and even reduction in speed limit based on the fact that we had workforces in here throughout the time frame.
>> one side said fresh oil --
>> one sign says fresh oil.
>> the second sign says what?
>> road construction ahead and rough road.
>> and be prepared to stop along with a 20 mile per hour speed zone.
>> there are also from periodic signs that say flagmen ahead, beware of flagmen ahead. Those signs are put up and taken down because we don't want to have those signs up when there are no flag people present because they have a tendency to be ignored.
>> do we think that we had sufficient signage up on this project?
>> it is our understanding that the signs were in compliance and were sufficient.
>> okay. Anything from the court?
>> what does that mean that it's our understanding. Does that mean that -- that you -- someone is assigned to make sure that they see that the signs are up? Or do we just get a report that -- that the signs were put up?
>> yes, ma'am. It is the supervisor's responsibility and the crew leader's responsibility on the project sites to make sure that they are in compliance with the manual and there is a handout manual that is given to our crew leaders and our supervisors, there is training that they go through that's provided by text dot as well as others to make sure that they are in compliance with the construction zone. In this type of situation, the construction zone was established for a duration of time. We also have construction zones that are mobile. Where they may be set up for a few hours or tracking down the way. And each one of those that are required to be in compliance, have to be -- they are checked by the supervisor, [indiscernible] the supervisor makes a site visit to make sure that they are up.
>> that's correct.
>> mr. Fisher?
>> yes, sir.
>> first of all, there were no signs posted on the webb.
>> henry fisher.
>> okay.
>> there were no signs posted on the westbound which was the direction my wife was headed. In the one photograph that I showed you, you are in direct violation of the [indiscernible] code, section 6 f 04, let me read this to you if I would, please. It says if a temporary traffic control zone requires regulatory measures different from those existing, the existing permanent regulatory devices shall be removed or covered or suspended by the appropriate temporary regulatory signs. This change shall be made in conference or conformance with applicable ordinances or statutes of the jurisdiction. In this sign, in this photograph right here, if you'll take a look at it. You will not only see there's temporary traffic control signs, but also permanent signs up. The 45 mile per hour speed limit sign is still posted, not covered hasn't been removed. Another sign right here that shows for a curve and a 45 mile per hour, 35 mile per hour zone and that sign hasn't been moved or marked or removed or covered. So they didn't do it. The photograph that I show you with the flagging station on the day that I happened to take this, I just happened to be coming home.
>> one second. What's the date?
>> I believe that photograph was taken August 31st of '04. There were no flagging signs up, there were no be prepared signs, this flagger -- excuse me, judge.
>> wait a minute. Said earlier that construction took place between June 21st and July 20th.
>> yes, sir.
>> if that was taken in August --
>> we're still working on the road, judge.
>> when was the work completed?
>> the work was completed on August 27th is what our last date shows.
>> okay. And you took the picture.
>> August 31, sir.
>> okay.
>> that flagger right there is supposed to be attending that sign. Not jamming it in a cone. He's supposed to be to the side of the road, not out in the middle of the road. He's supposed to have three additional cones in front of him.
>> okay. When did the incident happen that got this on your car?
>> we filed this, sent the fax in on August the 3rd of '04.
>> the incident happened the same day?
>> no, sir.
>> when did the whatever was used for the road project, when did that get on your car?
>> on or about the 23rd of July.
>> were you with ms. Fish erwin center.
>> no, sir. Came home from work, I don't believe she was -- she was aware of it until I made her aware of it. Because I went out to clean her car that -- that Friday afternoon or Saturday morning. I said, where did all this come from, it was a brand new car. She goes well, must have come from the oil that was sprayed down there. She said, I said why didn't you turn around? She said there wasn't anyplace to turn around. The westbound lanes, once you -- once you get on that road, you can't turn around. I said, well, wasn't there somebody there to tell you they were oiling?
>> no.
>> weren't there any signs up?
>> no.
>> who road was this?
>> elroy. There's an alternative road to take. You can take pierce lane. You can go around this deal. And i'll assure you, we would have gone around. This one picture that sets at burleson, 973 and elroy, that sign right there with the orange flag sitting on it, that's non-compliance because those flags right there are faded, that sign was put up day one. I called on that said, said that wasn't in compliance, you need to get that fixed. After that, this other sign right here was the one that finally showed up that said fresh oil on it. They were still in non-compliance on that part of it.
>> was day what that?
>> what day was this taken?
>> yes, sir.
>> that I'm not sure of. I would have to go back in on my system and take a look. I believe that was the first of July. That I saw that sign.
>> well, I think at some point we have to find whatever evidence there is that point to July 23rd, which you say was the date of the incident, and try to get those facts together. And if you got a construction project that took place over a period of two months, but this incident occurred one day during that time, right? So I think by law we are probably obligated to focus on what the situation was that day. If we did something to cause the problem, I think we ought to accept responsibility for it.
>> I absolutely agree with you.
>> so how fast was your wife driving?
>> um ... I don't know. I'm not sure, judge, that that's a relevant point. I think the facts are this --
>> what's the speed limit in that area?
>> 45 miles per hour.
>> was she driving 45 or 60 or 30?
>> I would say that she was driving the speed limit, sir.
>> there's no doubt, a lot of regulation that's should have been followed, intentions there, would have, should have, could have. I understood what immunity is. I understand why it exists. If we are going to hide behind immunity, why did we bother to put any signs at all. Why don't we do whatever the hell we want to do, say we've got immunity let the citizens figure it out from there. They never had any channeling devices up there at all, never one time.
>> I haven't heard immunity today. But if you have -- if the incident occurred at a certain time on a certain day, I don't know that what happened over a two-month period helps us that much.
>> I do -- when you continually see the signs, you say there's fresh oil on July 1, and there's never any oil applied until the end of August, or you say you have a fresh oil sign put up on June 1 and you don't apply oil till August the 15th, the point of the mutcd and the signs is to warn motorists of a change in the road. And when you put that stuff up and you leave it up, people read that and you know what they say? It ain't happening so I'm not going to worry about it. We've been looking at fresh oil signs for eight weeks. There had never been -- not even an oil truck out there. I mean, you couldn't even sniff that we were getting ready to spread oil on that road. They had rain, they had to relay has that base. I think that base down there on that road was relayed four different times. They would lay it down, it would wash down to the bottom of the hill. We would have to relay the road base. When those plans change, you take those fresh oil signs and lay them face down or you cover them up. Then two days before you get ready to three your road base up or oil up, you throw those up, people go wait a minute this is a new sign what's going on here. When you read it eight weeks, you get tired of reading it going hey. Then you drive up and you find out they can't do a flagging operation right, you go wait a minute I'm not sure they even know what they are doing out here.
>> do you think that there was a fresh oil sign up on July 23rd.
>> on the day that we did the drive over? Yeah the incident.
>> I can tell you there was not a fresh oil sign on the westbound lanes, I know that.
>> was your wife driving in the westbound lane?
>> yes, sir.
>> were you able to see the oil when you were driving on this -- on July 23rd?
>> no, sir. At the top of that hill, once you get to the top of the hill, start this down that road. That's when we ran into the fresh oil. At has point you're out of luck. The oil truck was headed in the eastbound lanes, you can't turn in those lanes either. You turn pull off and run down the side of that road because that's all mud.
>> could you see it on July 23rd.
>> could we see what on July 23rd, fresh oil?
>> fresh oil.
>> no, sir. Not until you were in the middle of it. Once you entered it, you were in it. You can't turn around at that point.
>> the -- yes, sir?
>> it's a real simple question for me. Was there a sign on the 23rd, which is the event day? If there wasn't, then I agree with you. If there was, no sign --
>> thank you.
>> that says fresh oil, now, howard, are you saying there was a sign and he is saying there wasn't a sign?
>> we are saying there was a sign, yes, sir. The sign on the westbound lanes were posted ahead of the project as far as the advance warning signs. I'm not real sure where mr. Fisher entered into the construction work zone, whether its through the stony ridge subdivision or eastbound or correction web on elroy road, but there was advanced warning signs.
>> how do we verify.
>> by the preponderance of the evidence that I just showed you, if you can't do a flagging operation right, I show you pictures of where you are supposed to have permanent signs covered or removed and you didn't do that it seems to me that I would want to believe that they didn't have them post understand the other direction, either.
>> this is a less than a $600 gig, right?
>> yes, sir.
>> the -- the oil operation began according to the t.n.r. Records on jul 6th, and were completed I believe on -- on the 27th of August. And we are not aware of any other claims that have been made or notifications of any similar incidences as mr. Fisher has described the damage to his vehicle.
>> this photograph was taken August 31 and that road is not done yet and they are still in the middle of the hill on a flagger operation.
>> for clarification's sake, economics and judge, the -- Commissioners and judge, the application of the terse and base processing was completed on the 27th, paving operations was the final application that could well have been done at that time frame. What the records are indicating is what the base applications were and the structure of the road and then the paving was the very last thing, that was a one-day application.
>> so the oil that got on the car, though, when was --
>> as I understand it the -- the oil, the claim was dated the 23rd. And that the oil application had taken place on the 22nd. There is a -- what we call a draw down in the process, in which we go to the asphalt storage tanks, pull material off of that, the application takes place over a day or two period. As a process material, they add material to it. So the application of oil on the 22nd and 23rd is -- the likelihood of us applying application oil is very high. I would say that we did apply on the 22nd and 23rd based on our records with fresh oil signs present.
>> can we verify that the sign was up? If we can verify that the sign was up, I will stand by my vote. If we can't, I think that mr. Fisher is deserving of compensation here. I mean it's -- that's simple of a deal for me, I mean, the sign was up on the westbound lane bingo, that's what happened.
>> let me also point out to you when we originally filed this claim, that I was talking with the lady by the name of donna, this claim was getting ready to be paid, it was about a two-week process. I called back, I said I haven't had the check in the mail yet, I'm not sure what's going on, where are we at in the process. At this point there was another claims adjustor that stepped in, another gentleman, I apologize, I don't have my notes, at that point this thing started to drag out, the next thing I heard was well we're not going to pay your claim, it's immunity, we don't have to patriot it, we are not going to pay it. I said this is crazy. There were errors in judgment made, there were errors in the process made. And I'm not going to let this thing just dry up and go away. I'm not going away. If.
>> [multiple voices]
>> from the county.
>> excuse me.
>> you say you spoke with someone named donna.
>> yes, sir, I believe that was her name.
>> she's sitting right here at the table.
>> I have never met her I wouldn't know her face from anyone else's sir.
>> the original claim I believe I spoke actually would have been to your wife was indicated that the oil was sprayed on to the vehicle. When I original speak to them over the phone, I have no details, I'm just speaking to the claimants. Spraying we have in the past they use a wand at times and when they use that wand we have had them drive so close that the wand has literally splayed the vehicle -- sprayed the vehicle, that was my understanding when I spoke to him that's what I thought had happened. So -- so in that case normally the process takes two to four weeks to process a claim. Once the information is ascertained, then we begin the investigation and that's at that time what came in later.
>> then we found out later it wasn't -- [multiple voices] it really was just coming off of the roadway.
>> off the roadway.
>> let me explain to you that the first conversation that I had with this lady, she already had the claim in her hands.
>> I believe --
>> which I had never spoke to her until this claim had been filed and was sitting in somebody's hands. So they had the paperwork in front of them when I called.
>> this is the -- what we had before us was the claimant's statement from mrs. Fisher. From that point we began the investigation. That's what the claim statement says, fresh oil sprayed from truck.
>> I'm going to have to to have two or three questions from legal. We don't get into executive session until this morning at about 2:00 or 3:00. We have mrs. Fisher's phone number there, right? Mr. Fisher we will be able to let you know this afternoon what the court's decision is.
>> thank you. I would like to know what phone number that you have.
>> did you receive a call from --
>> I have never received a call from anyone.
>> let's get the phone number --
>> I spoke to you.
>> would you all get the phone number. Not necessarily at that table. But --
>> well, who is going to call me? That's the person that need to have this number.
>> give me your phone number.
>> the person right to your left there. We will call this up in executive session this will afternoon under consultation with attorney.
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Last Modified:
Wednesday, March 2, 2005 10:31 AM