In Reunion Hotel/Tower Joint Venture v. Dallas Area Rapid Transit , ___ S.W.3d. ___, 2008 WL 1735404, (Tex. App.—Dallas April 16, 2008, no pet. h.), the lower court granted summary judgment to a contractor hired by DART under the theory that DART’s sovereign immunity extended to the contractor. Dart hired a contractor to perform a public works project to build a light rail station at Union Station on land adjacent to the Hyatt hotel operated by Reunion. DART requested that a pedestrian tunnel be closed during construction, however Reunion refused this request. Later, Reunion complained about flooding in the tunnel. As a result the contractor installed electric pumps adjacent to the tunnel to prevent flooding. A rainstorm caused flooding of the tunnel and property damage that became subject of the lawsuit. The jury found Reunion and the contractor shared negligence on the flooding but that the flooding did not arise from the electric pumps. The trial court granted summary judgment for the contractor by extending DART's sovereign immunity to the contractor's negligence.

      The Transportation Code appears to extend sovereign immunity to the contractor. The Code states "an independent contractor performing work for a transit authority is liable for damages only to the extent that the authority would be liable if the authority itself were performing the function". Tex. Transp. Code § 452.056 (d). Reunion argued that the statute referred to only independent contractors performing transportation services, but could find no case law to support that conclusion. The Dallas Court of Appeals ruled that a contractor is liable for damages only to the extent that the entity or authority would be liable if the entity or authority itself were performing the function. The court reasoned that since DART is immune to liability, the contractor also is immune because they were performing a function of DART by constructing a transportation system.