Zachry Construction Corp v. Texas A&M University, No. 07-1050 (Tex. Nov. 20, 2009)
(O'Neill) (A&M bonfire litigation aftermath, proportionate responsibility, responsible third party) (petition for
review mooted by settlement and status change to "settling person")
10th district (10 05 00139 CV, 236 SW3d 801, 11 14 07)
2 petitions, motion to dismiss denied  
The Court withdraws its order of May 15, 2009, granting the petitions for review, as the petitions were
improvidently granted. The petitions for review are denied.
Justice O'Neill delivered the opinion of the Court. [pdf]
(Justice Willett not sitting)
View Electronic Briefs in

Zachry Construction Corp. v. Texas A&M University (Tex. 2009)(O'Neill)

Argued September 8, 2009

    Justice Willett did not participate in the decision.

    We granted review in this personal-injury and wrongful-death case to determine whether Texas A
& M University (TAMU) is a responsible third party whose percentage of responsibility must be
submitted to the trier of fact. Tex. Civ. Prac. & Rem. Code § 33.003(4).1 The plaintiffs have settled
and dismissed their claims against TAMU, and the parties now agree that the trial court may submit
TAMU’s percentage of responsibility to the jury as a “settling person.” Accordingly, without reference
to the merits of the court of appeals’ decision, we withdraw our order granting the petitions as
improvidently granted.

    This case arose out of the TAMU bonfire collapse that occurred in 1999. Several injured students
and family members of students who were killed in the collapse sued TAMU and others involved in
the planning and construction of the bonfire structure, including Zachry Construction Corp. (Zachry)
and Scott-Macon, Ltd. (Scott-Macon). The plaintiffs subsequently non-suited their claims against
TAMU, and Zachry and Scott-Macon filed separate cross-actions and third-party petitions seeking to
have TAMU designated as a responsible third party so that its percentage of responsibility could be
submitted to the jury. Zachry and Scott-Macon contend they did not intend to impose actual party
status or liability on the University; rather, they sought to have TAMU listed on the jury verdict form for
a determination of its proportionate responsibility. TAMU challenged its designation as a
responsible third party on sovereign immunity grounds. The trial court rejected TAMU’s arguments,
but the court of appeals reversed and rendered judgment dismissing all claims against TAMU. 236 S.
W. 3rd 801.

    Zachry and Scott-Macon filed petitions for review in this Court. Shortly after briefing on the merits
was completed, the University entered into a master settlement agreement with the plaintiffs. We
granted the petitions for review, but before oral argument TAMU filed a motion to dismiss the case
as moot. According to TAMU, because the University is now a “settling person,” the issue of whether
it will be placed on the jury verdict form is now moot.

    TAMU’s status as a “settling person” is not in dispute. Pursuant to section 33.003(3) of the Texas
Civil Practice and Remedies Code, the jury is required to make a determination of proportionate
responsibility as to “each settling person.” Therefore, in light of the University’s status as a “settling
person,” and without reference to the merits of the court of appeals’ decision, we withdraw our order
granting the petitions for review as improvidently granted and deny the petitions for review.


1 Former section 33.003 provides that the trier of fact shall determine the percentage of responsibility of

(1) each claimant;

(2) each defendant;

(3) each settling person; and

(4) each responsible third party who has been joined under Section 33.004.

Act of May 4, 1995, 74th Leg., R.S., ch. 136, § 1, 1996 Tex. Gen. Laws 971, 972, amended by Act of June 1, 2003, 78th Leg., R.
S., ch. 204 , § 3.03, 2003 Tex. Gen. Laws 847, 855 (current version at Tex. Civ. Prac. & Rem. Code § 33.003). All citations to
section 33.003 in this opinion refer to this version of the statute.

OPINION DELIVERED: November 20, 2009.

Note: Key legal terms and phrases rendered in bold type and hyperlinks are not part of the opinion as issued
by the Texas Supreme Court