Cantu v. C & W Ranches, Ltd.
| Decision Date | 28 April 2021 |
| Docket Number | No. 04-20-00126-CV,04-20-00126-CV |
| Citation | 631 S.W.3d 434 |
| Parties | Gabriel CANTU, Appellant v. C & W RANCHES, LTD., Appellee |
| Court | Texas Court of Appeals |
APPELLANT ATTORNEY: Jeffrey S. Kelly, Evan Bitto, Keith McMahon, The Kelly Legal Group, PLLC, P.O. Box 2125, Austin, TX 78768.
APPELLEE ATTORNEY: Steven D. Browne, Michael C. Boyle, Robinson C. Ramsey, Langley & Banack, Inc., 745 E. Mulberry, Suite 900, San Antonio, TX 78212.
Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice
Opinion by: Liza A. Rodriguez, Justice
At issue in this appeal is whether changing the vinyl on a billboard sign constitutes a "modification" under chapter 95 of the Texas Civil Practice and Remedies Code. Because the undisputed facts as depicted in this appellate record do not show that the billboard sign was "modified," we conclude that chapter 95 does not apply. Therefore, we reverse the trial court's judgment and remand for further proceedings.
Gabriel Cantu sued C & W Ranches, Ltd. ("C & W") for personal injuries he suffered on December 1, 2015, when he fell thirty feet from a billboard sign owned by C & W.1 Cantu's employer, Media Displays, had been hired to "switch off the advertising copy," that is, to remove the vinyl from the old advertisement and hang vinyl from a new advertisement on the billboard sign located on C & W's property. A crane was used to place Cantu on two-by-fours running horizontal to the billboard sign. Cantu used his lanyard to anchor himself to poles on the billboard sign. Cantu took down the old advertisement and started hanging the new vinyl, which was larger than the previous vinyl. He thus needed to use the extensions that had been added to the billboard sign. He explained in his deposition how the extensions had not been properly installed:
One, the two-by-fours that were screwed over from face to face on the—from—the two-by-fours that were horizontal. When they reached the ends of the board, they had another piece of plywood that went from face to face to those two two-by-fours and were screwed in or nailed in or—I believe it was screwed in. And the thing was those screws weren't long enough and weren't the right ones that should have been used according to OSHA.
Cantu testified in his deposition that he was "hooked up to the pole" and "gave a push with [his] foot" to make sure the extension did not move. He then hooked his lanyard "on to that two-by-four" and disconnected his other lanyard from the pole. He testified, "And I was grabbing around the end of the board to clamp the last part of that new vinyl we were installing, and that's all I remember as far as the fall after that." After falling thirty feet from the billboard, Cantu was taken to the hospital where he spent the next few weeks in a coma.
In response to Cantu's lawsuit, C & W filed a traditional and no-evidence motion for summary judgment. With respect to Cantu's negligence and premises liability claims, C & W argued in its traditional motion for summary judgment that chapter 95 of the Texas Civil Practice and Remedies Code applied. "Chapter 95 enunciates a general rule of non-liability for property owners when a contractor or subcontractor or an employee of a contractor or subcontractor is injured while performing repairs or construction." Rosa v. Mestena Operating, LLC , 461 S.W.3d 181, 184 (Tex. App.—San Antonio 2014, pet. denied). The property owner has the initial burden to establish that Chapter 95 applies. Montoya v. Nichirin–Flex U.S.A., Inc. , 417 S.W.3d 507, 511 (Tex. App.—El Paso 2013, no pet.). A property owner establishes that Chapter 95 applies if the plaintiff's claim is for "personal injury, death, or property damage" that "arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement." TEX. CIV. PRAC. & REM. CODE § 95.002. Once the property owner establishes that Chapter 95 applies, the burden shifts to the plaintiff to establish that the property owner (1) exercised or retained some control over the manner in which the work was performed, other than the right to order the work to start or stop, or to inspect progress or receive reports, and (2) had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn the plaintiff of that danger or condition. Id. § 95.003.
C & W argued in its traditional motion for summary judgment that its summary judgment evidence showed that Cantu's personal injury claims against the property owner (C & W) arose from the condition of an improvement (the billboard) to real property where the contractor (Cantu, as an employee of Media Displays) modified the improvement (the billboard). Thus, C & W argued that its summary judgment evidence established as a matter of law that section 95.002 applied. Because under section 95.002 the burden at trial would then shift to Cantu, C & W argued in its no-evidence motion for summary judgment that Cantu had no evidence to show pursuant to section 95.003 that (1) the property owner (C & W) exercised or retained some control over the manner in which the work was performed, other than the right to order the work to start or stop, or to inspect progress or receive reports; and (2) the property owner (C & W) had actual knowledge of the danger or condition resulting in the personal injury and failed to adequately warn. Cantu filed a response to C & W's traditional and no-evidence motion for summary judgment. After reviewing the motion and response, the trial court granted C & W's motion and ordered that Cantu should take nothing on his claims. He now appeals.
Under the common law, an independent contractor or its employee can recover against a property owner for premises liability or negligence if the owner exercised some control over the relevant work and either knew or reasonably should have known of the risk or danger. See Redinger v. Living, Inc. , 689 S.W.2d 415, 418 (Tex. 1985). The legislature, however, in enacting chapter 95 of the Texas Civil Practice and Remedies Code granted protection to property owners from claims by independent contractors or their employees. See Ineos USA, LLC v. Elmgren , 505 S.W.3d 555, 561 (Tex. 2016). When chapter 95 applies, it grants the property owner protection by requiring the plaintiff to prove that the owner "had actual knowledge of the danger or condition." TEX. CIV. PRAC. & REM. CODE § 95.003(2). Thus, if chapter 95 applies, a property owner is not liable based on merely what it reasonably should have known. See Ineos , 505 S.W.3d at 561.
As noted previously, under section 95.002, the property owner has the initial burden to establish the applicability of chapter 95. See TEX. CIV. PRAC. & REM. CODE § 95.002. A property owner establishes that chapter 95 applies if the plaintiff's claim is for "personal injury, death, or property damage" that "arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement." Id. Once the property owner establishes that Chapter 95 applies, the burden shifts to the plaintiff to establish that the property owner (1) exercised or retained some control over the manner in which the work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports, and (2) had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn the plaintiff of that danger or condition. See id. § 95.003. Construing chapter 95, the Texas Supreme Court described sections 95.002 and 95.003, respectively, as being "the heart of the chapter," and observed that when conditions of section 95.002 are satisfied, a plaintiff's sole means of recovery requires satisfaction of both prongs under section 95.003. Abutahoun v. Dow Chem. Co. , 463 S.W.3d 42, 46, 51-52 (Tex. 2015) ; see also Ineos , 505 S.W.3d at 561.
C & W's motion for summary judgment included traditional and no-evidence grounds. We review a trial court's decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). In a traditional motion, the party moving for summary judgment has the burden to prove there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c) ; Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985). Defendants who move for summary judgment may meet this burden by either (1) disproving at least one essential element of each theory of recovery, or (2) conclusively proving all elements of an affirmative defense. S & I Mgmt., Inc. v. Choi , 331 S.W.3d 849, 852 (Tex. App.—Dallas 2011, no pet.). Evidence favorable to the respondent will be taken as true, and every reasonable inference will be indulged in favor of the respondent, resolving any doubts in its favor. Nixon , 690 S.W.2d at 549.
In contrast, once a no-evidence motion is filed, the burden shifts to the respondent to present evidence raising an issue of material fact as to the elements specified in the motion upon which the respondent would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i) ; Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). When a successful summary judgment movant presents both traditional and no-evidence grounds, we must affirm if summary judgment can be sustained under either standard. Choi , 331 S.W.3d at 853.
The facts of the instant case are unusual in that to be entitled to summary judgment, C & W needed to succeed on both its traditional and no-evidence grounds. That is, under its traditional summary judgment grounds, C & W had to establish as a matter of law that section 95.002 applied to Cantu's...
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