Michael Neil Strahan and Kitten Jayne Strahan Individually, Jointly and as next friends for their minor children Chelsea Renee Strahan, Summer Grace Phillips and Mitchell Kent Strahan v. Larry Lewis Blanton and Donna J. Blanton--Appeal from 113th District Court of Harris County

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Affirmed and Memorandum Opinion filed November 8, 2005

Affirmed and Memorandum Opinion filed November 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00122-CV

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MICHAEL NEIL STRAHAN AND KITTEN JAYNE STRAHAN, INDIVIDUALLY, JOINTLY, AND AS NEXT FRIENDS FOR THEIR MINOR CHILDREN, CHELSEA RENEE STRAHAN, SUMMER GRACE PHILLIPS AND MITCHELL KENT STRAHAN, Appellants

V.

LARRY LEWIS BLANTON AND DONNA J. BLANTON, Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 02-65985

M E M O R A N D U M OP I N I O N

Appellants, Michael Strahan and Kitten Strahan, individually and jointly, and as next friends of their three children Chelsea Strahan, Summer Phillips, and Mitchell Strahan appeal summary judgments granted in favor of appellees, Larry and Donna Blanton. This suit arises from injuries Michael Strahan sustained while working at the Blantons= home. We affirm.


I. Factual and Procedural Background

On May 14, 2002, Michael Strahan, an independent contractor, was hired to perform exterior siding work at appellees= residence. To perform the siding work, Strahan climbed onto appellees= roof. Once on the roof, Strahan noticed the top of the roof had a bare spot,[1] loose shingle rock, twigs, and leaves. Strahan was standing on the roof and removing siding from the second floor overhang when he slipped and fell to the ground. Strahan was standing on his tiptoes on the sloped roof, stepped back with his right foot, felt something move from beneath his foot, and lost his balance. Strahan was not sure whether the slip was caused by the steep slope of the roof or something loose under his feet.

On December 31, 2002, Strahan, his wife, and their three children filed suit against the Blantons alleging negligence, gross negligence, premises liability, and negligence per se. On January 16, 2004, the Blantons filed separate motions for summary judgment asserting both traditional and no-evidence grounds. The Blantons alleged: (1) there was no evidence of any condition on the property that posed an unreasonable risk of harm, and no evidence the Blantons= alleged failure to reduce or eliminate the risk proximately caused Strahan=s injuries; (2) there was no evidence of proximate cause; (3) appellants failed to specify what condition on the premises posed an unreasonable risk of harm; (4) appellants failed to set forth any facts or allegations to meet the elements of gross negligence; and (5) appellant=s provided no evidence of lost wages and loss of consortium.

Appellants responded to both motions for summary judgment citing deposition testimony stating leaves, twigs, and loose shingle rock littered the roof and the roof contained a bare spot. Appellants argued appellees had notice of the debris and condition of the roof and should have known it involved an unreasonable risk of harm and warned Strahan. The trial court granted both motions for summary judgment.


In four issues, appellants contend summary judgment was improper because: (1) genuine issues of material fact preclude appellees= traditional motion for summary judgment, and more than a scintilla of evidence exists to preclude appellees= no-evidence motion for summary judgment; (2) evidence shows appellees were negligent and grossly negligent; (3) there was inadequate time for discovery; and (4) there is sufficient proof of economic damages and loss of consortium.

II. Standards of Review

The standards of review for both traditional and no-evidence summary judgments are well known. Tex. R. Civ. P. 166a(c), (i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). Because the trial court=s order does not specify the ground or grounds on which the summary judgment is granted, we affirm if any of the theories advanced in either summary judgment motion are meritorious. See State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

III. Premises Liability

Appellants= claims against appellees assert liability arising from a premises defect. All parties agree appellant was an invitee at the time of the accident. Generally, a premises owner has no duty to see that an independent contractor performs his work in a safe manner. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). An owner can be liable for the injuries of an independent contractor if a defect existed on the premises when the independent contractor entered the premises. Coastal Marine Serv. of Texas v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999). The elements of appellants= claim are (1) appellees= actual or constructive knowledge of a condition on their premises, (2) that posed an unreasonable risk of harm, (3) that appellees did not exercise reasonable care to reduce or eliminate, and (4) the failure to use such care proximately caused Strahan=s injury. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000).


In support of appellants= argument that they raised fact issues, Strahan points to the following testimony from his deposition:

Q. Okay. As you were removing those top pieces had you had any problem with footing up until this fall?

A. Yeah. Every once in a while my foot would slip. Just, you know C

Q. While you were tiptoeing?

A. No, it was C there was leaves and twigs and C

Q. Okay.

A. C loose, you know, shingle rock.

Q. Right. I guess you had known that since 10:00 when you first got up there, right?

A. Well, when I first got up there, there was C I noticed a spot on the shingle where all the rock had been rubbed off and I C I pointed it out to Lee and he looked at it and he said that he knew about it and Larry knew about it because they had trimmed the trees back previously.

Q. Okay. Was that in the area where you slipped, or was that somewhere else on the roof?

A. That was down towards the other end.

Appellants contend this testimony was sufficient to defeat appellees= no-evidence motion for summary judgment. However, during his deposition, Strahan also testified as follows:

 Q. [Defense Counsel] But do you know one way or another whether your foot slipped because you stepped on something , a leaf, a twig, or it was just that it slipped on the angle of the roof?

 A. I didn=t see. I don=t know.

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 Q. [Defense Counsel] I asked you previously if there was any obstruction or anything [on the roof]. I asked you about the leaves and the twigs and the shingles and if anyBany of that is what caused you to fall and you had told me no. Why is it now that you=re saying something slipped under your foot?

 A. I don=t know what it was I stepped on. WhatBmoved I don=t know. I couldn=t see.

 Q. You can=t say there was anything there, can you?

 A. I don=t know.

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 Q. [S]o do you have any explanation as to what caused it?

 A. The roof caused it.

 Q. And what about the roof caused it?

 A. That=s what I slipped on.

To prevail under a theory of premises liability, a plaintiff must prove that the defendant=s negligence was a proximate cause of his injuries. See CMH Homes, Inc., 15 S.W.3d at 99. Proximate cause consists of both cause in fact andforseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Cause in fact means that the defendants= act or omission was a substantial factor in bringing about the injury, which would not otherwise have occurred. Prudential Ins. Co. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex.1995). At some point in the causal chain, the defendants= conduct may be too remotely connected with the plaintiff=s injury to constitute legal causation. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). Cause-in-fact must be proved by evidence of probative force and not by mere conjecture, guess, or speculation. Western Investments Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).


By Strahan=s deposition testimony and appellants= argument, appellants suggest that appellees= were the proximate cause of his accident merely because he slipped and fell from the roof. Strahan testified, however, that the bare spot on the roof was not in the area where he slipped and fell. He further testified that he did not know if he stepped on anything on the roof. Strahan=s testimony that the roof caused his fall establishes only the fact of his injury, not that it was caused by appellees= alleged negligence. Appellants failed to provide more than a scintilla of evidence to meet the proximate cause element and overcome the no-evidence motion for summary judgment. See Hopper v. J.C. Penney Co., 371 S.W.2d 750, 751B52 (Tex. App.CFort Worth 1963, writ ref=d n.r.e.) (finding where appellant testified she did not know what caused her fall, evidence did not show causal connection); see also Castillo v. Westwood Furniture, Inc., 25 S.W.3d 858, 859C62 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (reversing a traditional summary judgment when the plaintiff tripped on a mat and did not know the cause of her fall, but stating the testimony might have defeated the claim if the defendant had filed a no-evidence motion). Because appellants failed to produce any evidence that appellees= negligence, if any, proximately caused Strahan=s accident, we overrule the first and second issues.

IV. Adequate Time for Discovery

In their third issue, appellants contend the no-evidence summary judgment should have been denied because there had not been adequate time for discovery. A party may move for a no-evidence summary judgment only after adequate time for discovery. Tex. R. Civ. P. 166a(i). In considering whether the trial court has permitted an adequate time for discovery, we consider factors such as (1) the nature of the case, (2) the nature of evidence necessary to controvert the no evidence motion, (3) the length of time the case was active, (4) the amount of time the no evidence motion was on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery that had already taken place, and (7) whether the discovery deadlines in place were specific or vague. Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.CSan Antonio 2001, pet. denied). We review a trial court=s determination that there has been an adequate time for discovery on a case by case basis, under an abuse of discretion standard. Restaurant Teams Int=l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.CDallas 2002, no pet.).


A. Nature of the Case and Evidence Necessary to Defeat the Motion

This is a premises liability case in which appellants must show appellees= negligence proximately caused Strahan=s injuries. Appellants contend they need additional time for discovery to reschedule the deposition of Dr. Saul Trevino. Appellants allege in their brief AHad Dr. Trevino attended the deposition, his deposition testimony could have corroborated with the kind of injuries the Appellant sustained when he fell from Appellees= roof because of the existence of the dangerous condition on Appellees= roof.@ Appellants do not allege that Dr. Trevino witnessed the accident, or that he had any knowledge of the condition of appellees= roof, or the reason Strahan fell from the roof.

 B. Length of Time the Case and Motion were on File

The suit was filed December 31, 2002. A docket control order was filed July 25, 2003, which stated the discovery limitations of Rules 190.2 and 190.3 of the Texas Rules of Civil Procedure applied to discovery, which permit discovery until thirty days before the date set for trial. Trial was set February 16, 2004; therefore, the discovery period expired January 15, 2004. Appellees= no-evidence motion for summary judgment was filed January 17, 2004 and Dr. Trevino=s deposition was originally scheduled January 29, 2004.

C. Status of Discovery

Oral depositions of Strahan and Larry Blanton were taken on October 15, 2003. Oral depositions of Kitten Strahan and Clifford Blanton were taken on October 20, 2003. Although Dr. Trevino=s deposition was not scheduled prior to the end of the discovery period, appellees= motion was filed on the grounds that appellants produced no evidence of proximate cause or negligence. Dr. Trevino was Strahan=s treating physician, and had no personal knowledge of the accident or the condition of the roof prior to the accident.


D. Remaining Factors

The final factors are whether the discovery deadlines were vague and whether the movant requested stricter deadlines for discovery. The discovery deadline specifically followed the rules of civil procedure. Appellees did not request stricter deadlines for discovery, nor did appellants seek a continuance in order to complete discovery.

E. Conclusion

Appellants were given over one year to complete discovery before the February, 2004 trial date. Appellees= motion was filed based on no evidence of liability, not damages. The additional discovery sought by appellants tended to show proof of damages, not liability. The trial court did not abuse its discretion in granting appellees= no-evidence motion for summary judgment.

V. Damages

In their fourth and fifth issues, appellants contend there was adequate evidence to establish economic damages and loss of consortium. Because appellees= motion was meritorious on the issue of liability, we need not reach issues four and five. See State Farm, 858 S.W.2d at 380.

The judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 8, 2005.

Panel consists of Justices Anderson, Fowler, and Frost.


[1] Strahan=s deposition testimony reveals the alleged bare spot was on the other end of the roof from where he fell and did not cause his fall.