Driver safety in construction zones depends on contracted companies, says TxDOT

Who is accountable for your safety as you drive through construction zones along I-10?

The question is prompted after ABC-7 learned that no criminal charges and no citations are pending against local company JAR Construction after a piece of its heavy machinery sheared through the 18-wheeler containing Patrick Van Fossen, 24, and Keserie Paredes, 22, on Dec. 21, 2017.

Van Fossen and Paredes were killed in the crash, which happened in a construction zone on I-10 east and Americas Avenue.

ABC-7 turned to agencies at the state and federal level to find who was investigating accountability in the crash after learning that the El Paso Police Department investigated the crash but closed the case without recommending criminal charges to the El Paso District Attorney’s Office.

ABC-7 also learned that an investigation of JAR Construction’s work site on I-10 conducted by the Occupational Safety and Health Administration, or OSHA, uncovered numerous safety hazards –including construction equipment with the keys left in the ignition — but resulted in no citations because OSHA says it has no jurisdiction on highways.

The ABC-7 I-Team also reached out to the Federal Highway Administration, the National Transportation Safety Board and the Federal Motor Carrier Safety Association to ask if they were investigating liability in the crash.

All told ABC-7 they were not.

The FHWA and the NTSB also told ABC-7 that they were not asked by TxDOT to assist in any investigation.

ABC-7 turned to TxDOT for answers, filing an open records request in November of 2018 to ask for any and all reports pertaining to the crash.

TxDOT’s legal department in Austin released three short documents, saying it was all it had and closed the request.

The agency said it doesn’t oversee construction projects on highways once work is underway. The site, a spokeswoman told ABC-7, becomes the responsibility of the contractor.

ABC-7 then filed a second, more specific public records request in April asking for any and all records and reports, including emails, memos and messages related to the crash. ABC-7 also emailed the spokeswoman for the El Paso district asking about safety measures and its investigation.

Jennifer Wright told ABC-7 that she was told, “No one at TxDOT is investigating this.”

In May, TxDOT officials in Austin referred our request to the Texas Attorney General’s Office.

In its letter to the A.G., TxDOT asked that the “fatal crash review” not be made public because it believed the information was exempt from disclosure.

Despite ABC-7 appealing to the A.G.’s office that the release of the review is in the public’s best interest, it ruled that TxDOT can rely on a federal law to keep its report secret in order to, in layman’s terms, allow staff to freely discuss safety hazards they’ve found on the highways without fear of being dragged into a lawsuit.

ABC-7 requested an on-camera interview with El Paso’s TxDOT spokeswoman Jennifer Wright, but Wright told ABC-7 that she wasn’t given the authorization. She did say in a phone conversation that the ‘fatal crash review’ only examines whether there was anything that the agency could have done to prevent the crash.

While TxDOT owns and maintains the highways, it says it is not responsible for highway safety when there is a work zone.

JAR Construction — which, on its website, touts its quality over its 62 years — has not returned our calls for comment over the past 5 months, nor has its attorney.

TxDOT’S El Paso district encompasses six counties with nearly 5,000 miles of driving lanes. With $90 million going to contractors each year, it appears drivers must hinge their hopes on private construction companies to do their job to make work zones safe.

Relatives of the two young truckers sued JAR Construction for negligence and the trial is scheduled for Oct. 1 in an El Paso District Court, according to court documents obtained by ABC-7.

In court documents, the company claims a “John Doe” tampered with the equipment, creating a hazard.

KVIA 2019