A Tom Green Elementary School prekindergarten teacher has filed a lawsuit seeking at least $1 million in damages against the driver of a concrete pump truck who caused a fatal wreck involving three other vehicles, including a Hays school district bus carrying dozens of pre-K students and school staff.
The lawsuit also alleges negligence in the hiring of the driver, Jerry Hernandez, by Bastrop County-based companies F.J.M. Concrete LLC and FJM Concrete Pumping LLC and their owner, Francisco Xavier Martinez Jr.
Martinez and the two businesses are named as defendants.
Reached by the American-Statesman on Friday, Martinez deferred comment to his attorney, Jim Clements. Clements did not immediately respond to a request for comment.
Efforts to reach Laurence Dunne III, a defense attorney listed as representing Hernandez in Bastrop County records, were unsuccessful.
Details, aftermath of the crash
On the afternoon of March 22, Hernandez was driving east on Texas 21 when he swerved into the westbound lane. A Hays school district bus driving west on the highway, returning from a field trip to a zoo in Bastrop County, then swerved to the right to try to avoid the truck but was unsuccessful, according to a report by Texas Department of Public Safety investigators that was released Thursday. The impact caused the bus to roll over before landing upright.
Hernandez continued driving in the westbound lane, the report said, causing another vehicle behind the bus to swerve into the eastbound lane. The report released Thursday showed for the first time that officials indicated a fourth vehicle was involved in the crash.
Hernandez then hit a Hyundai and continued driving through the westbound lane, going through a guardrail. The concrete pump truck landed on its side.
Five-year-old pre-K student Ulises Rodriguez Montoya and the driver of the Hyundai, 33-year-old Ryan Wallace, died as a result of the crash.
Hernandez has been arrested on a charge of criminally negligent manslaughter in Bastrop County.
On the day of the crash, Hernandez told investigators with the Texas Department of Public Safety that he had gotten about three hours of sleep the night before, in addition to smoking marijuana before bed and then taking cocaine at 1 a.m., according to his arrest affidavit. The crash report released Thursday notes that a toxicology report is pending from a blood sample taken from Hernandez.
The report said that driver fatigue and drug use may have contributed to the crash.
Martinez, the driver’s employer, told investigators he had not verified the status of Hernandez’s commercial license or his driver’s history before hiring him, according to an arrest affidavit for Hernandez. At the time, Hernandez was permitted to operate the concrete pump truck in Texas.
In October 2021, Martinez was ticketed for employing an unlicensed driver. On Tuesday, Martinez pleaded no contest to the misdemeanor offense and paid the then-delinquent $316 ticket, according to Hays County Precinct 4 Justice of the Peace John Burns.
Claims of the lawsuit
The lawsuit says Deborah Serna, the Tom Green Elementary teacher, broke at least four bones in her back and suffered other injuries, forcing her to be out of classroom work as she recovers. She has suffered mental anguish and a loss of earnings, the lawsuit says.
Immediately after the crash, Serna “wanted to make sure her students were safe and helped students off the bus before medics examined her injuries,” the lawsuit says.
The lawsuit alleges that Hernandez failed to “keep a proper look out for traffic,” keep a safe distance from other vehicles, control his speed, apply his brakes soon enough to avoid a crash, yield the right of way to oncoming traffic, and operate the vehicle “in a reasonable and prudent manner.” The suit accuses him of driving recklessly and driving while intoxicated, impaired or under the influence.
The lawsuit references an order from federal transportation officials disqualifying Hernandez’s commercial driver’s license on the basis that he is an “imminent hazard to public safety.” The order, issued by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration, cited Hernandez’s alleged drug violations and a failure to complete “any treatment plan” last year.
The lawsuit alleges F.J.M. Concrete LLC, FJM Concrete Pumping LLC and Martinez were negligent in the hiring, training, supervision and retention of Hernandez.
Hernandez, Martinez and the companies “were subjectively aware” of the risk they were posing to others, the lawsuit says, “but nevertheless proceeded with conscious indifference to the rights, safety, and welfare of others.”
Serna’s husband, Rex, is also a plaintiff in the lawsuit, claiming loss of “consortium” and a loss of household services as a result of his wife’s injuries.
“Texas law recognizes that when a spouse is injured the other spouse is also injured,” the Sernas’ lawyer, Sean Breen, said in an email to the Statesman. “The relationship is affected. The injured spouse cannot be and do what she was before. The jury is entitled to award damages for that loss.
“Deborah and Rex want to express their condolences to the others lost and injured in this wreck and thank the community for all the support, especially those helping with the donations,” Breen told the Statesman. “Teachers make very little money and injured teachers make even less so every little bit helps.”
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