James L. Conkle v. Builders Concrete Products Manufacturing Company and Dillon Steel

Per Curiam In this case, the parents of Douglas Conkle sued his employer and the manufacturer of the concrete batch plant
where he worked for damages that resulted from his untimely death. The trial court granted partial summary judgment for the
employer on the grounds that the Conkles were barred from suit because of their acceptance of death benefits under the Worker's
Compensation Act. It then granted summary judgment for the employer on the Conkles' remaining claim for exemplary damages
for the intentional and willful infliction of death on the deceased. The trial court also granted summary judgment for the
manufacturer on the grounds that the Conkles' claim was barred by the 10 year statute of limitations applicable to claims
against persons who construct improvements to real property. TEX. CIV. PRAC. & REM. CODE § 16.009 (1986). In an unpublished
opinion, the court of appeals affirmed. Pursuant to TEX. R. CIV. P. 133(b), a majority of this court reverses the judgment
of the court below granting summary judgment to the manufacturer and upholds that portion of the judgment granting summary
judgment for the employer. Douglas Conkle worked as a materialman for Builders Concrete Products Manufacturing Company. His job was to direct various
materials for concrete mixture into appropriate bins or hoppers. These bins and hoppers were part of a concrete batch plant.
They were designed and manufactured by Dillon Steel at its plant in 1956. The plant was originally sold and delivered to Lok
Rok Corporation. It was later purchased by Builders Concrete and moved to its property. On a fairly regular basis, foreign
objects, which could cause damage to the machinery, made their way into the bins. It was the practice of the materialmen,
under instructions from Builders Concrete management, to get into the bins to remove the objects. Conkle apparently got into
one of the bins for that purpose and was trapped. His body was discovered at the bottom of one of the bins, completely covered
with sand.