Roberto Chapa v. Al Hogan Builder, Inc., et al.--Appeal from 319th District Court of Nueces County

NUMBER 13-04-128-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERTO CHAPA, Appellant,

v.

AL HOGAN BUILDER, INC., ET AL., Appellee.

On appeal from the 319th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

 

Appellant, Roberto Chapa, brings this appeal from the trial court's order of February 9, 2004, granting summary judgment in favor of Al Hogan Builder, Inc. ("Hogan"), and the subsequent dismissal of all causes of action on February 18, 2004.[1] We affirm.

I. Background

Chapa, an experienced insulator, was working in the attic of a home being built by Hogan, installing blown insulation. He stepped on what he alleged to be an "unsecured floor joist," which gave way, causing Chapa to fall through the ceiling and onto the floor, injuring his knee and lower back. Chapa brought claims for negligence and gross negligence, alleging that Hogan failed to warn Chapa, its invitee or licensee, of the dangerous condition on the job site. Chapa alleged, in the alternative, that the instrumentality of the accident was in the sole possession of Hogan, and therefore the accident was the result of unknown negligent activities of Hogan.

II. Standard of Review

 

The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972); Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.BCorpus Christi 2003, no pet.). On appeal, the standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no evidence or traditional grounds. SeeTex. R. Civ. P. 166a(i), (c); Alaniz, 105 S.W.3d at 344; Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.BCorpus Christi 2003, no pet.) (op. on reh'g). The difference in relative burdens between the parties in the two types of summary judgment motions is significant. Alaniz, 105 S.W.3d at 344. Determination of the nature of the motion for summary judgment under analysis is critical. Id.

The trial court did not specify the ground or grounds on which it granted Hogan's motion for summary judgment. Accordingly, we will uphold the summary judgment if any one of the grounds raised by Hogan in its summary judgment motion has merit. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Alaniz, 105 S.W.3d at 344; Ortega, 97 S.W.3d at 772. Hogan did not separately present and brief its no evidence and traditional motions for summary judgment.

A. No-Evidence Summary Judgment Standards

A no evidence motion for summary judgment asserts that there is no evidence of one or more essential elements of a claim on which the adverse party will bear the burden of proof at trial. Tex. R. Civ. P. 166a(i); Alaniz, 105 S.W.3d at 344; Scripps Tex. Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 840 (Tex. App.BCorpus Christi 2003, pet. denied). This type of motion must specifically identify the elements of the claim for which there is alleged to be no evidence. Meru v. Huerta, 136 S.W.3d 383, 386 (Tex. App.BCorpus Christi 2004, no pet.). Conclusory motions or general no-evidence challenges to an opponent's case are not appropriate under this rule. Id. at 387.

 

We apply the same legal sufficiency standard of review to a no evidence summary judgment as we apply to a directed verdict. Alaniz, 105 S.W.3d at 344; Belalcazar, 99 S.W.3d at 840. "Like a directed verdict, then, the task of the appellate court is to determine whether the plaintiff has produced any evidence of probative force to raise fact issues on the material questions presented." Belalcazar, 99 S.W.3d at 840. To raise a genuine issue of material fact, all that is required of the non movant in responding to a no evidence motion for summary judgment is to produce a scintilla of probative evidence. Alaniz, 105 S.W.3d at 344; Ortega, 97 S.W.3d at 772. "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." Alaniz, 105 S.W.3d at 344; see Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair minded people to differ in their conclusions." Alaniz, 105 S.W.3d at 344; Ortega, 97 S.W.3d at 772 (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). The movant has no burden to attach any evidence to a no evidence motion for summary judgment. SeeTex. R. Civ. P. 166a(i); Ortega, 97 S.W.3d at 772. The non movant bears the entire burden of producing evidence to defeat a no evidence motion for summary judgment. Alaniz, 105 S.W.3d at 344.

B. Traditional Summary Judgment Standards

 

We review de novo a trial court's grant or denial of a traditional motion for summary judgment. Id. at 345; Ortega, 97 S.W.3d at 771. The movant bears the burden of showing both that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Alaniz, 105 S.W.3d at 345. In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non movant as true. Alaniz, 105 S.W.3d at 345. We make all reasonable inferences and resolve all doubts in favor of the non movant. Id. Summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id. A non movant has the burden to respond to a traditional summary judgment motion if the movant conclusively (1) establishes each element of its cause of action or defense, or (2) negates at least one element of the non movant's cause of action or defense. Alaniz, 105 S.W.3d at 345; Ortega, 97 S.W.3d at 771.

III. Analysis

A. No-Evidence Motion for Summary Judgment

Chapa's petition brings claims for negligence and/or gross negligence. Texas law requires proof of three familiar elements to sustain a cause of action for negligence: (1) a legal duty owed by one party to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The non existence of a duty ends the inquiry into whether negligence liability may be imposed. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

 

In issue is the duty owed by a contractor to the employee of a subcontractor. Hogan alleged in its motion that Chapa failed to tender proof on the element of duty, breach of any duty, or that any breach was a proximate cause of Chapa's damages. Hogan also alleged the absence of any evidence that Hogan acted unreasonably.

The motion as written addresses each of the elements of negligence broadly alleging that there is no evidence as to any of the elements of negligence. The motion makes no distinction between the various types of negligence alleged by Chapa, including allegations that appear to include a premises defect,[2] and res ipsa loquitur.[3] A no evidence motion for summary judgment must state the elements of the claim as to which there is no evidence. Tex. R. Civ. P. 166a(i); Meru, 136 S.W.3d at 386. This requirement is strictly construed. Id. (citing Michael v. Dyke, 41 S.W.3d 746, 751 n.3 (Tex. App.BCorpus Christi 2001, no pet.)). Rule 166a(i) does not authorize conclusory motions or general no evidence challenges to an opponent's case. Tex. R. Civ. P. 166a cmt.; Oasis Oil Corp. v. Koch Ref. Co., L.P., 60 S.W.3d 248, 252 (Tex. App.BCorpus Christi 2001, pet. denied).

 

We agree that Hogan's no-evidence motion for summary judgment is conclusory and inadequate as a no-evidence summary judgment motion. It fails to enumerate with adequate specificity the elements of the claim(s), other than general negligence, for which Hogan contends there is no evidence. We next review de novo Hogan's motion for traditional summary judgment.

B. Traditional Summary Judgment

Hogan's motion for summary judgment alleges as its first ground that it owed no duty and breached no duty to Chapa. Evidence tendered includes the deposition testimony of Chapa and of Paul Steger, a registered professional engineer and the engineer of record for the structure. Hogan asserts that Chapa, according to his own testimony, stepped on a cross-board rather than a ceiling joist. The cross-board, clearly positioned between joists, was meant only to support a light fixture or ceiling fan. Hogan also asserts that no building code requires that ceiling joists be cross-braced, and that Chapa, as an experienced insulator familiar with attics, should have known that cross-boards are not meant to be weight-bearing. Hogan argues that Chapa was "therefore negligent as a matter of law, that Movant was not negligent, and that Plaintiff's negligence was more than 51% responsible for this accident."

 

Hogan tendered evidence to establish Chapa's experience and that he knew of the danger of stepping on boards other than joists.[4] We cannot agree that this evidence is limited solely to the question of causation; it also directly impacts the question of duty and breach of duty. As a matter of law, the duty owed in a premises liability claim depends upon the status of the injured person. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 660 (Tex. 1999) (Abbott, J., concurring) (citing Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073, 1074 (Tex. 1941).

Generally speaking, a licensee is a person who goes onto the premises of another merely by permission, express or implied, and not by any express or implied invitation. Olivier v. Snowden, 426 S.W.2d 545, 549 (Tex.1968); Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936). "Because a licensee enters for his or her own purposes, he has no right to demand that the land be made safe for his reception and he must, in general . . . look out for himself." County of Cameron v. Brown, 80 S.W.3d 549, 557 (Tex. 2002). Therefore, the duty owed a licensee requires that a landowner (or person in control of the premises) not injure a licensee by willful, wanton or grossly negligent conduct, and that he use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. State Dep't of Highways and Pub. Transp. v. Payne, 839 S.W.2d 235, 237 (Tex. 1992). A licensee must prove that he had no knowledge of a dangerous condition (if such exists); if a licensee has the same knowledge as the licensor, then no duty to the licensee exists. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).

 

In order to create the relation of invitor and invitee, the invitee must "go upon and appropriate the premises or the facilities of the invitor by and through which some benefit is received by the latter. In other words, the mission of the invitee should be for the mutual benefit of both parties." Snowden, 426 S.W.2d at 549. An occupier of premises has a duty to an invitee to use ordinary care to keep the premises in a reasonably safe condition, or to warn of any hazard. Payne, 838 S.W.2d at 243-44 (citing J. Weingarten, Inc., v. Razey, 426 S.W.2d 538, 539 (Tex. 1968)). The premises owner, or contractor in possession or control of the premises, must inspect the premises and warn an independent contractor/invitee of dangerous conditions that are not open and obvious and that the owner knows or should have known exist. Coastal Marine Serv. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999) (citing Clayton W. Williams, Jr., Inc., v. Olivo, 952 S.W.2d 523, 527-28 (Tex. 1997) (superceded by statute)). Premises defects of this type are ones "in which the danger did not arise through the work activity of the subcontractor/invitee." Id. (citing Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746-47 (Tex. 1973)). Only concealed hazardsBdangerous in their own right and independent of action by anotherBthat are in existence when the independent contractor enters the premises fall into this subcategory of premises defects. For example, an open shaft with inadequate warnings, in existence when contractors entered a property, has been held to be such a defect. Id. (citing Smith v. Henger, 226 S.W.2d 425, 431-33 (Tex. 1950)).

 

Chapa's deposition testimony establishes he was the employee of a subcontractor, on the job to install insulation as part of the process of constructing a home. This is undisputed. We conclude Chapa was on the property as an invitee.[5] The issue therefore becomes not one of whether any duty was owed to Chapa, but whether there was any breach of such a duty. If indeed Chapa fell through the ceiling because a ceiling joist was not properly fastened down, this would constitute a concealed hazard, independent of action by another. If, on the other hand, this was a cross-board which was not required to be secured in place because it was never meant to be weight-bearing but was designed to serve other purposes, and Chapa had knowledge of the difference between joists and cross-boards, then there is no concealed hazard or premises defect.

Chapa acknowledges that he knew that he had to step only on the joists in order to be safe when walking in the attic. He discussed that he stepped on a joist which gave way because "it was not nailed up there like it was supposed to be." When it gave way, he fell through the ceiling and was injured. However, Chapa then clarified in his deposition that the board he stepped on was not a "long joist:"

 

A: Byou know, IBI didn't understand, you know, that one, what you wasBthe long joist, I know they'reBthey're there, you know. The one I'mBI was talking about, the oneBit wasBit was going across the two joists, like support, you know. That's what I wasBthat's what I'm talking about.

Q: Okay. Let's clear that up a little bit . . . you've got the framing diagram and it's talking about 2-by-6 joists.

A: Yeah. Uh-huh. And theyBthey had one across that one. That's the one that gave when I was walking back.

Q: Okay. So there was something between the joists?

A: Uh-huh. Yeah.

Q: All right. Was that a 2-by-6?

A: 2-by-6 there B . . .

Q: Okay. Is it common to see things between the joists?

A: They do haveByeah, to support. I don't know what. Maybe to hang lights and ceiling fans or whatever. . . .

Q: Okay. So let me make sure I've got it clear. What you're saying is that you didn'tBit wasn't a joist that gave way, then?

A: Not the long ones, no. No, notBI'm talking about it was in between. . . . In between the joists, yeah.

Counsel then discussed with Chapa whether it was a 2-by-6 or a 2-by-4 board which gave way, and that 2-by-6 boards would be flush with all the other ceiling joists. Chapa agreed that a 2-by-4 board should be sitting two inches lower than the joists, but could not remember whether this board was flush with or lower than the ceiling joists. Chapa stated that he kicked the board first to be sure it was stable, that it did not move and he therefore thought it was nailed down, and that he then stepped on it and it broke. Chapa also stated that, after he fell, the board was still attached to the piece of sheetrock that was swinging from the ceiling.

 

Based on this and other portions of Chapa's testimony, Hogan asserts that Chapa did not step on a ceiling joist, and that he was experienced in his profession, such that he was aware of the dangers of stepping on other types of boards in an attic.

 

Evidence tendered by Hogan also included the deposition testimony of Paul Steger, identified as the structural engineer for the premises in issue.[6] Steger designed the foundation, and was responsible for the windstorm inspection and ensuring compliance with the windstorm code. He hires other inspectors to perform the actual inspection. Steger testified that the structure was built in accordance with the windstorm codes, which requires the secure fastening of all ceiling joists, and that he was not aware of any code requiring ceiling joists to be cross-braced. This particular structure had passed the windstorm inspection prior to the accident involving Chapa.[7] Steger testified that if there were a board between two joists, it would not have been placed there as a part of any code requirement, and it would not have been a structural element. Any such cross board could have been installed by a plumber to support an evaporator, an electrician to support a light fixture or ceiling fan, or by a sheetrocker to provide an edge. It would not have been a joist or structural member. From this testimony, Hogan argues that it had no duty to secure a cross-board in the same manner as it would secure a ceiling joist, and that it therefore had no duty to warn Chapa of a non-existent concealed hazard or special dangerous condition on the premises of which Hogan had knowledge but Chapa did not.

The summary judgment record also includes evidence tendered by Chapa, including the deposition testimony of Adrian Garcia, a co-worker on the job on that date. Garcia testified that after the accident, when he went to assist Chapa, he saw a fallen 2-by-4 board, not a 2-by-6 board, a little less than two feet long. He thought it was on the floor below the hole in the ceiling. He also testified that his employer instructed them not to step on sheetrock, and to step on joists; he did not recall any instructions regarding stepping on cross-boards. Garcia's testimony corroborates that the board in issue was a cross-board, not a ceiling joist.

IV. Conclusion

Despite Chapa's continued urging that evidence does not confirm that he stepped on a cross-board or 2-by-4 rather than on a ceiling joist or 2-by-6, we conclude from the testimony of Chapa, Garcia and Steger that the board Chapa stepped on was not a ceiling joist, and that no fact issue exists on this point.

 

It is the movant's burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management, 690 S.W.2d 546, 549 (Tex. 1985).[8] Hogan was required to show the absence of any fact issue with respect to at least one critical element of each of a plaintiff's claims, such that plaintiff cannot recover as a matter of law. Id.

We uphold summary judgment if any of the grounds raised by Hogan in its summary judgment motions has merit. Bradley, 990 S.W.2d at 247. The duty owed by Hogan was to keep the premises in a reasonably safe condition, or to warn of any concealed hazard. Payne, 838 S.W.2d at 243-44. We conclude there is less than a scintilla of evidence[9] that (1) a condition existed on the premises that was a concealed hazard or posed an unreasonable risk of harm to Chapa, or (2) that Hogan failed to exercise reasonable care to reduce or eliminate the risk, or failed to warn, such that Hogan breached any duty to Chapa. See Gonzalez, 968 S.W.2d at 936. Summary judgment for Hogan is therefore proper because Hogan has disproved at least one element of each of the plaintiff's claims.[10] Alaniz, 105 S.W.3d at 345.

We conclude the trial court did not err in granting summary judgment. We overrule Chapa's issue on appeal and affirm the judgment of the trial court.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 11th day of August, 2005.

 

[1]Hogan filed a third party petition for indemnity against Williams Insulation f/k/a Insul Pro, LLC, a subcontractor of Hogan. Based on the trial court's ruling in favor of summary judgment, the third party petition became moot and was subsequently dismissed. This dismissal disposed of all remaining claims in the suit.

[2] In a premises claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner/operator, (2) that the condition posed an unreasonable risk of harm, (3) that the owner/operator did not exercise reasonable care to reduce or eliminate the risk, and (4) that the owner/operator's failure to use such care proximately caused the plaintiff's injuries. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). A condition poses an unreasonable risk of harm for premises defect purposes when there is a "sufficient probability of a harmful event occurring [such] that a reasonably prudent person would have foreseen it or some similar event as likely to happen." County of Cameron v. Brown, 80 S.W.3d 549, 557 (Tex. 2002).

[3] To be entitled to a res ipsa judgment, the plaintiff must show both (1) that the character of the injury is such that it could not have occurred in the absence of the defendant's negligence, and (2) that the instrumentality causing the injury was under the exclusive management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Lambert v. Gearhart-Owen Indus., Inc., 626 S.W.2d 845, 847 (Tex. App.BCorpus Christi 1981, no writ).

[4] Nothing in the traditional motion for summary judgment is directed to the issue of control over the workplace.

[5] This is not a case that turns on whether Hogan contractually retained or actually exercised a right of supervision such that Chapa's employer was not entirely free to do the work in its own way, or one in which safety regulations promulgated by a premises owner/general contractor allegedly increased the risk or severity of injury to an independent contractor's workers. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per curiam). Nor is this a case in which the negligent injury was caused by a co-employee of Chapa, such that the question becomes whether Chapa's employer, or the general contractor Hogan, had control over the work site. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605-06 (Tex. 2002). We have also noted Chapa's reference to Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) for the proposition that Chapa was an invitee rather than a licensee. However, Redinger clearly states that it was not a premises liability case, but rather involved an injury arising from an activity on the premises. Id. at 417. Further, although Chapa, in his response to the motion for summary judgment, addresses Hogan's alleged negligent control, safety instruction, supervision and training, none of Chapa's pleadings are directed to such claims. Chapa's appellate brief begins with the statement that "[t]his is a simple premises liability action."

[6] The deposition testimony clarifies that as of the date of his deposition, Paul Steger had not been retained or asked to testify as an expert by any party in the suit.

[7]Steger stated that the windstorm code is the most stringent building code.

[8] We reject Hogan's contention that Chapa bears the burden to present a fact issue. It is Hogan's burden to establish the absence of any fact issue, see Nixon v. Mr. Property Management, 690 S.W.2d 546, 549 (Tex. 1985), and all reasonable inferences and doubts must be resolved in favor of the non movant, Chapa. See Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.BCorpus Christi 2003, no pet.).

[9]"Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." Alaniz,105 S.W.3d at 344; see Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

[10] Summary judgment is also appropriate on a claim of res ipsa loquitur, if such is even alleged, based on the clear evidence that the incident could have occurred, in whole or in part, as a result of Chapa's own negligence (and therefore in the absence of Hogan's negligence). See Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Lambert v. Gearhart-Owen Indus., Inc., 626 S.W.2d 845, 847 (Tex. App.BCorpus Christi 1981, no writ).