El Paso County - 171st District Court

Filed 8/29/2016 9:15:55 AM

Norma L. Favela
District Clerk
El Paso County
2016DCV2883

CAUSE NO. 2016-DCV-2883

PRISCILLA MERAZ, Individually and as
Next Friend of AISHA M. RAMOS and
JEREMY I. RAMOS, Minor Children, and on
behalf of THE ESTATE OF CARLOS
RAMOS, Deceased,
Plaintiff,
v.
CITY OF EL PASO, TEXAS, the EL PASO
WATER UTILITIES PUBLIC SERVICE
BOARD, and CUBIC WATER, LLC,
Defendants.

IN THE DISTRICT COURT

171ST JUDICIAL DISTRICT

EL PASO COUNTY, TEXAS

ORIGINAL ANSWER OF THE CITY OF EL PASO AND THE EL PASO WATER

UTILITIES PUBLIC SERVICE BOARD
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendants the City of El Paso and the El Paso Water Utilities Public
Service Board, a component unit of the City of El Paso (collectively referred to as the City
Defendants), that file this, their Original Answer in response to that Original Petition filed by
Plaintiffs Priscilla Meraz, individually and as next friend of Aisha M. Ramos and Jeremy I.
Ramos, Minor Children, and on behalf of the Estate of Carlos Ramos, Deceased (collectively
referred to as the Plaintiffs). On October 22, 2014, an accident happened at the Bustamante
Water Treatment Plant when Cubic Water, LLC, an independent contractor, negligently created a
sewage leak in an area where Cubic Water had been hired to replace a sludge pump. As a result
of the leak, two employees of Cubic Water tragically lost their lives.

Although the City

Defendants did nothing to cause the accident and instead acted quickly in attempts to rescue the
Cubic Water employees, they have been named as defendants in the above referenced lawsuit.
Original Answer

Page 1 of 8

The City Defendants will show that they were not responsible for this unfortunate accident, and
that they have been wrongfully sued.
I. JURISDICTION
1.

The City Defendants are immune from the claims asserted and/or damages sought by

Plaintiffs under the common law doctrines of sovereign or governmental immunity. As a unit of
Texas local government, the City Defendants are immune from suit and liability, unless that
immunity has been clearly and unequivocally waived. TEX. GOVT. CODE 311.034. While the
Plaintiffs ostensibly contend that the City Defendants immunity from suit and liability has been
waived pursuant to the Texas Tort Claims Act1, some or all of the Plaintiffs claims do not fall
within the Texas Legislatures waivers of immunity, and those claims are barred and should be
promptly dismissed.
II. DISCOVERY CONTROL PLAN
2.

The City Defendants also intend for this matter to proceed under a Level 3 discovery

control plan, tailored to this suit, and formally request the entry of such a plan. TEX. R. CIV. P.
190.4(a).
III. GENERAL & SPECIFIC DENIALS AND OTHER DEFENSES
3.

The City Defendants deny generally, each and every, all and singular, the material

allegations in the Plaintiffs Petitions on file herein, and demand that the Plaintiffs be required to
prove their claims and causes of action in accordance with Texas law via strict proof by a
preponderance of the evidence.
4.

Pleading further and without waiving the foregoing, the City Defendants specifically

deny that their actions were negligent or outside a normal standard of care, and demand strict
proof thereof. The City Defendants deny that they, or any employee of the City Defendants
1

TEX. CIV. PRAC. & REM. CODE 101.001-101.109.

Original Answer

Page 2 of 8

breached any duty owed to Carlos Ramos, deceased, and further deny that any alleged breach of
duty proximately caused the incident complained of by the Plaintiffs. On the date of the subject
incident, the City Defendants had no superior knowledge of any risk alleged by Plaintiffs as a
cause of the loss of life at the Bustamante Water Treatment Plant. The City Defendants deny
that they owed any duty to control the independent contractor. The City Defendants deny that
any of their actions were the cause-in-fact of the incident, and deny that the subject accident,
which occurred suddenly and without any warning, was foreseeable.
5.

Pleading further and without waiving the foregoing, the City Defendants specifically

deny that any dangerous condition existed at the Bustamante Water Treatment Plant that posed
an unreasonable risk of harm, and to the extent any such condition appeared suddenly it was
created solely by the deceased and/or other employees of Cubic Water, LLC. Accordingly, the
City Defendants deny that the deceased, Mr. Ramos, was unaware of the condition that was
suddenly created by the acts or omissions of Cubic Water, LLC. The City Defendants further
deny that they were aware of any unreasonable risk of harm prior to its creation by Cubic Water,
LLC, or that they failed to make any defective condition reasonably safe. The City Defendants
deny that any of their actions or omissions were the proximate cause of the incident or the death
of Mr. Ramos.
6.

Pleading further and without waiving the foregoing, the City Defendants specifically

deny that any of their actions were a cause-in-fact of the incident alleged by Plaintiffs.
7.

Pleading further and without waiving the foregoing, if the City Defendants are found

liable as alleged, which they specifically deny, then their percentage of responsibility should be
compared to the percentage of responsibility attributed by the trier of fact to Mr. Carlos Ramos,
deceased, and other Defendants, settling persons, and responsible third parties including Mr.

Original Answer

Page 3 of 8

John Barrow, III, also deceased, pursuant to Chapter 33 of the Texas Civil Practice and
Remedies Code, and any recovery should be reduced accordingly.
8.

Pleading further and without waiving the foregoing, the City Defendants assert that in

addition to any other limitation under law, recovery of medical or health care expenses, to the
extent that any are claimed, are limited to the amount actually paid or incurred by or on behalf of
the claimant. TEX. CIV. PRAC. & REM. CODE 41.0105.
9.

Pleading further and without waiving the foregoing, to the extent the Plaintiffs seek

pecuniary damages in the form of lost earning or lost earning capacity, the City Defendants
affirmatively plead the defenses set forth in Texas Civil Practice and Remedies Code Section
18.091, requiring Plaintiffs to prove their alleged loss of earnings and/or loss of earning capacity
in the form which represents her net loss after reduction for income tax payments or unpaid tax
liability on said loss of earnings claim pursuant to any federal income tax law. Additionally,
Defendant requests the Court to instruct the jury as to whether any recovery for compensatory
damages sought by Plaintiff, if any, is subject to federal income taxes.
10.

Pleading in the alternative and without waiving the foregoing, the City Defendants

specifically plead the application of the Texas Civil Practice and Remedies Code, Chapter 41,
including the provisions on applicability, standards for recovery, preclusion, prejudgment
interest, and limitations on the amount of recovery.
11.

Pleading further and without waiving the foregoing, the City Defendants assert

prejudgment interest may not be assessed or recovered on an award of future damages, if any.
TEX. FIN. CODE 301.1045.
12.

Pleading in the alternative and without waiving the foregoing, to the extent sought by the

Plaintiffs, the Plaintiffs cannot recover exemplary damages of any kind from the City
Defendants. TEX. CIV. PRAC. & REM. CODE 101.024.
Original Answer

Page 4 of 8

13.

Pleading in the alternative and without waiving the foregoing, to the extent the Plaintiffs

claims arise from an alleged premises defect, the City Defendants only owe to the claimants the
duty that a private person owes to a licensee. TEX. CIV. PRAC. & REM. CODE 101.022.
14.

Pleading in the alternative and without waiving the foregoing, in the unlikely event that

any liability is ever established as to the City Defendants, that liability is limited to money
damages in a combined maximum amount of $250,000 for all Plaintiffs. TEX. CIV. PRAC. &
REM. CODE 101.024(c).
15.

Pleading further and without waiving the foregoing, pursuant to Rules 63, 69 and 98 of

the Texas Rules of Civil Procedure, the City Defendants reserve the right to amend or
supplement this Original Answer and plead further and in greater particularity as such may
become appropriate and as a result of additional discovery being taken in this matter.
IV. AFFIRMATIVE DEFENSES
16.

Pleading in the alternative and without waiving the foregoing, the City Defendant assert

the following affirmative defenses, should any be necessary:

a.

Sovereign or governmental immunity from suit and liability.

b.

Contributory Negligence the actions and omissions of Carlos Ramos, deceased,

were the sole proximate cause, or in the alternative, a producing cause of the subject incident,
and the damages claimed by the Plaintiffs in this case. Regrettably, Mr. Ramos failed to
exercise that degree of ordinary care that a normal person would under the same or similar
circumstances.
c.

Assumption of the Risk Carlos Ramos, deceased, knowingly exposed himself to

a dangerous activity and condition which appeared suddenly and which was a cause of the
incident made the basis of this suit.

Original Answer

Page 5 of 8

d.

Failure to Mitigate Damages Plaintiffs have a continuing duty to exercise

reasonable care in minimizing their alleged damages. The City Defendants plead that Plaintiffs
are barred from recovery of any and all alleged damages, injuries or complications which could
have been avoided.
V. INFERENTIAL REBUTTALS
17.

Pleading in the alternative and without waiving the foregoing, the City Defendants assert

the following inferential rebuttals, should any be necessary:

a.

New and independent cause.

b.

Sole proximate cause the conduct of an entity, person or persons other than the
City Defendants is the only cause of the occurrence at issue.

c.

Sudden emergency.
VI. REQUEST FOR DISCLOSURE

18.

Pursuant to Rule 194, the Plaintiffs are requested to disclose, within 30 days of service of

this request, the information or material described in Rule 194.2(a) (l).

VII. JURY DEMAND
19.

The City Defendants also make a demand for a jury trial in the above-entitled and

number cause.
PRAYER
The City Defendants pray that Plaintiffs take nothing by this suit, that the City
Defendants be discharged with all costs and expenses taxed to the Plaintiffs, and for such other
and further relief to which they may be justly entitled.

Original Answer

Page 6 of 8

Respectfully submitted,
ALEJANDRO ACOSTA JR.
TSBN: 00798021
STEVEN H. WELLER
TSBN: 24039235
GUNNAR SEAQUIST
TSBN: 24043358
Bickerstaff Heath Delgado Acosta LLP
121 Paragon Lane
Building B, Suite 1
El Paso, Texas 79912
Tel: 915-533-1810
Fax: 915-533-1841
Email: aacosta@bickerstaff.com
Email: sweller@bickerstaff.com
Email: gseaquist@bickerstaff.com
BY:
STEVEN H. WELLER
DANIEL ORTZ
Texas Bar No. 24065854
Assistant General Counsel
EL PASO WATER UTILITIES
1154 Hawkins Blvd., 4th Floor
El Paso, Texas 79925
Tel.: (915) 594-5578
Fax: (915) 594-5699
Email: DAortiz@EPWU.org

ATTORNEYS FOR DEFENDANTS THE CITY

OF EL PASO ACTING and THE EL PASO
WATER UTILITIES PUBLIC SERVICE BOARD

Original Answer

Page 7 of 8

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served
on the parties listed below by electronic service to all parties listed below on this the 29th day of
August, 2016.
Robert L. Lovett
Lovett Law Firm
619 Arizona Avenue
El Paso, Texas 79902
Email: rlovett@lovettlawfirm.com
Attorney for Plaintiffs

Sean C. White
Kemp Smith LLP
P.O. Box 2800
El Paso, Texas 79999-2800
Email: sean.white@kempsmith.com
Attorney for Cubic Water, LLC

STEVEN H. WELLER

Original Answer

Page 8 of 8