Cooley v. Deansteel Mfg. Co.
| Docket Number | 13-21-00294-CV |
| Decision Date | 25 August 2022 |
| Parties | KENNETH COOLEY, Appellant, v. DEANSTEEL MANUFACTURING COMPANY, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 343rd District Court of San Patricio County Texas.
Before Justices Benavides, Hinojosa, and Silva
Appellant Kenneth Cooley appeals the trial court's order granting a no-evidence summary judgment as to his negligence claim against appellee Deansteel Manufacturing Company (Deansteel). In one issue, Cooley argues that the trial court erred in dismissing his claim because he produced more than a scintilla of evidence as to each challenged element. We affirm.
In his live pleading, Cooley alleges he was working on an offshore oil rig called the Stampede pursuant to a contract agreement with Kiewit Offshore Services, Ltd, (Kiewit). Cooley maintains that he fell while attempting to climb a ladder to the top bunk of the Stampede's living quarters. Cooley alleged that he sustained severe and permanent injuries to his neck, lower back, and body in general. Cooley sued Kiewit, Deansteel, and Jamestown Metal Marine Sales, Inc. (Jamestown) for negligence in failing to provide a safe workplace. Cooley alleged that each defendant failed to: (1) perform adequate inspection of work; (2) coordinate work activity aboard the rig; (3) identify hazards associated with the workplace; (4) warn of hazards associated with the workplace; and (5) remove hazards from the workplace. Cooley also complained of each defendant's "general acts or omissions that constitute negligence." Although not stated in Cooley's petition, the record demonstrates that Deansteel manufactured the bunk from which Cooley fell. Jamestown assembled the bunk once it was delivered to the Stampede, which was being built by Kiewit.
Deansteel filed a no-evidence motion challenging the duty, breach, and causation elements of Cooley's negligence claim. Specifically, Deansteel argued that it had no duty to provide Cooley a safe workplace, because it was not Cooley's employer and exercised no control over the worksite. While alleging no-evidence grounds for summary judgment, Deansteel nonetheless attached the following evidence to its motion: (1) a purchase order to manufacture several bunks; (2) Cooley's deposition testimony; and (3-5) the deposition testimony of each defendant's corporate representative. Deansteel's summary judgment evidence generally established that the bunk involved in Cooley's injury was manufactured by Deansteel, but that it had no employment relationship with Cooley and did not exercise control over the operation of the Stampede.
Cooley filed a response to Deansteel's no-evidence motion for summary judgment, attaching the following evidence: (1) Cooley's affidavit; (2) the incident report of the accident; (3) photographs of bunks on other oil rigs; (4) a shop drawing of the bunk; (5) photographs of the bunk; (6) the deposition transcript of Deansteel's corporate representative; and (7) Cooley's medical records.
Cooley's evidence showed that Deansteel designed and manufactured the bunk involved in Cooley's injury. According to Cooley's affidavit, he was working on the Stampede as a night cook when his supervisor ordered him to remake the linens of the bunks. Cooley climbed the ladder to reach the top of one of the bunks and grabbed the safety rail.[1] The safety rail came loose in Cooley's hand causing him to fall to the floor. Cooley suffered back, neck, and spine injuries as a result. Cooley stated that he later learned the bunk had a grab bar used to access the top bunk. The grab bar was attached to the wall at the foot of the top bunk, but it was obscured by a curtain at the time of Cooley's fall. Cooley stated that the safety rail did not include a warning that it was removable from the bed frame. Cooley further claimed that there were no instructions indicating that the grab bar could be found behind the privacy curtain. Cooley stated that in his eleven years working offshore, he has never encountered safety rails that were not permanently attached to the bed frame. A photograph of the bunk at issue showed the safety rail removed from the top bunk. Another photograph showed that the grab bar used to access the top bunk was obscured by the bunk's privacy curtain. Several photographs of bunks located on other offshore rigs showed the bunk's safety rail permanently affixed to the frame of the bunk.
Cooley argued that Deansteel owed a duty to him as the designer and manufacturer of the bunk that was involved in his injury. Cooley argued that Deansteel breached this duty by designing a bunk bed with a removable safety rail. Cooley also maintained that Deansteel should have included a warning that the safety rail was removable and that users should use the grab bar behind the privacy curtain to access the top bunk.
Deansteel filed a reply to Cooley's response, objecting to Cooley's assertion of claims that were not contained in Cooley's pleadings and noting that the deadline to amend pleadings had expired. Specifically, Deansteel objected to Cooley raising claims such as strict products liability and negligent manufacturing and design. Cooley filed a sur-reply generally reviewing the evidence supporting his claims. Cooley thereafter moved to dismiss his claims against Jamestown and Kiewit on account of the parties having settled. In separate orders signed the same day, the trial court granted Cooley's motion to dismiss as well as Deansteel's no-evidence motion for summary judgment. Cooley filed a motion for new trial, which the trial court denied. This appeal followed.
As a threshold matter, we address Deansteel's argument that it was not required to move for summary judgment regarding Cooley's claims raised for the first time in his summary judgment response. Deansteel asserts that it was required to move for summary judgment only as to Cooley's pleaded claim of negligence in failing to provide a safe workplace.
A defendant is not required to show that the plaintiff cannot succeed on any theory conceivable to obtain summary judgment; a defendant is only required to meet the plaintiff's case as pleaded. Via Net v. TIG Ins., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam). In other words, a defendant is not required to guess what unpleaded claims might apply and negate them. Id.; see SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995); Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex. 1976). As such, a defendant need not move for summary judgment on "claims or analogous theories asserted in responses to the motion[] for summary judgment and subsequent briefs." Kehler v. Eudaly, 933 S.W.2d 321, 327 (Tex. App.-Fort Worth 1996, writ denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)). "[W]hen a nonmovant asserts a claim for the first time in its summary judgment response, the movant has two options: (1) object that the claim was not pleaded, or (2) respond on the merits and try the issue by consent." Roberts v. Wells Fargo Bank, N.A., 406 S.W.3d 702, 707 (Tex. App.-El Paso 2013, no pet.).
"Texas is a fair notice pleading jurisdiction[.]" In re Odebrecht Constr., Inc., 548 S.W.3d 739, 746 (Tex. App.-Corpus Christi-Edinburg 2018, orig. proceeding). To have fair notice of a claim an opposing party must be able to "ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant." First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 2017) (quoting Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000)). "Stated somewhat differently, the fair-notice standard measures whether the pleadings have provided the opposing party sufficient information to enable that party to prepare a defense or a response." Id. at 224-25; see Bos v. Smith, 556 S.W.3d 293, 305-06 (Tex. 2018) ("Pleadings must give fair notice of the nature and basic issues so the opposing party can prepare a defense.").
In the absence of special exceptions, we construe the pleading liberally in favor of the pleader. Bos, 556 S.W.3d at 306. "A court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged." Boyles v Kerr, 855 S.W.2d 593, 601 (Tex. 1993). In other words, if a pleading fails to include an essential element of a cause of action, the pleading should be challenged by special exceptions. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). "Even so, a liberal construction 'does not require a court to read into a petition what is plainly not there.'" Bos, 556 S.W.3d at 306 (quoting Heritage Gulf Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 658 (Tex. App.-Houston [14th Dist.] 2013, no pet.)). Thus, "when a plaintiff pleads none of the elements of a viable cause of action, the defendant is not obligated to file special exceptions that would suggest to the plaintiff possible causes of action against the defendant." The Huff Energy Fund, L.P. v. Longview Energy Co., 482 S.W.3d 184, 198 (Tex. App.-San Antonio 2015), aff'd sub nom. Longview Energy Co. v. Huff Energy Fund LP, 533 S.W.3d 866 (Tex. 2017) (); see also Moreno v. Ocadiz, No. 13-19- 00116-CV, 2021 WL 3085855, at *6 (Tex. App.-Corpus Christi-Edinburg July 22, 2021, pet. denied) (mem. op.). Further, "[w]hen a pleader provides both general and specific allegations, the specific controls, and the pleader cannot rely on the general allegations...
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