Duncan v. First Tex. Homes

• Decision Date: 12 February 2015
• Docket Number: NO. 02–12–00464–CV,02–12–00464–CV
• Citation: 464 S.W.3d 8
• Parties: Bobby Duncan, Appellant v. First Texas Homes and First Texas Homes, Inc., Appellees
• Court: Texas Court of Appeals

464 S.W.3d 8

Bobby Duncan, Appellant

v.First Texas Homes and First Texas Homes, Inc., Appellees

NO. 02–12–00464–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: February 12, 2015

Rehearing Overruled April 16, 2015.

Benjamin Barmore, Rad Law Firm, Houston, Marquette Wolf, Ben Taylor, Ted B. Lyon & Associates, P.C., Mesquite, TX, for Appellant.

David W. Dodge, McCathern, PLLC, Dallas, TX, for Appellee.

PANEL: GARDNER and WALKER,

JJ.¹

OPINION

ANNE GARDNER, JUSTICE

Appellant Bobby Duncan sued Appellees First Texas Homes and First Texas Homes, Inc. (collectively, First Texas) for injuries suffered by Duncan during the course and scope of his employment with First Texas. In three issues, Duncan appeals from the trial court's order granting summary judgment in favor of First Texas. We reverse and remand.

I. Background

Duncan was employed as a construction superintendent by First Texas. On June 8, 2007, he was injured when he fell down a set of exterior stairs while leaving an office trailer on a construction site located in Frisco, Texas. The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) inspected the construction site in September 2007. On December 3, 2007, OSHA issued a “Citation and Notification of Penalty” to First Texas for several violations of the Occupational Safety and Health Act. Among the citations was a citation for a violation of 29 C.F.R. § 1926.1052(a)(4) because “the swing of the job trailer's door reduced the effective width of the platform [at the top of the stairs] to 14 inches.” 29 C.F.R. § 1926.1052(a)(4) (2007) ( “Where doors or gates open directly on a stairway, a platform shall be provided, and the swing of the door shall not reduce the effective width of the platform to less than 20 inches (51 cm).”).

The stairs and platform were constructed in March 2005. From that time until the accident—a period of two years and three months—Duncan went up and down the steps at least four times per day, five days a week without any problems. When leaving the trailer, Duncan normally turned around and closed and locked the trailer door—which swung outward over the platform—before walking across the platform and down the stairs. This left Duncan with the entire forty-nine-and-a-half-inch width of platform to walk on. On the day of the accident, however, Duncan exited the trailer while simultaneously closing the door behind him. This method left him with only fourteen inches between the swing of the door and the edge of the platform to walk on. Duncan claims that as a result of the insufficient clearance between the swing of the door and the edge of the platform, he inadvertently stepped off the platform “into air” where he expected to find the edge of the platform and fell, striking his lower back on the edge of the platform and first step. After the fall, Duncan was diagnosed with a herniated disc and “posterior displacement and effacement of the cervical spinal cord,” which he alleged necessitated epidural steroid injections, physical therapy, and multiple spinal surgeries.

Duncan sued First Texas, alleging that it was negligent in failing to (1) provide Duncan with a safe place to work; (2) engage competent and experienced planners, designers, construction personnel, subcontractors, inspectors, and supervisors; (3) adequately train and instruct the planners, designers, construction personnel, subcontractors, inspectors, and supervisors involved in the construction, inspection, and maintenance of the deck, handrails, and stairway of the office trailer; and (4) inspect the deck, handrails, and stairway of the office trailer and maintain them in a reasonably safe condition.

First Texas filed a hybrid traditional and no-evidence motion for summary judgment. See Tex.R. Civ. P. 166a(c), (i). First Texas sought a traditional summary judgment on the grounds that there was no genuine issue of material fact that (1) it did not have actual or constructive knowledge that the stairs constituted a dangerous condition, (2) the stairs did not pose an unreasonable risk of harm, or (3) its alleged failure to exercise reasonable care was not the proximate cause of Duncan's injuries. First Texas also requested summary judgment on the grounds that there was no evidence that (1) it had actual or constructive knowledge of any defect in the stairs prior to Duncan's accident or that the stairs constituted a dangerous condition, (2) a condition on the premises posed an unreasonable risk of harm, or (3) its failure to use reasonable care was the proximate cause of Duncan's injuries.² Duncan filed a response, arguing that First Texas failed to prove it was entitled to judgment as a matter of law and that he had provided more than a scintilla of evidence of every element of his claim. The trial court granted First Texas's motion for summary judgment without specifying the grounds relied upon for its ruling.

II. Standards of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010) ; see Tex. R. Civ. P. 166a(b), (c).

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id. ; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008).

When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005) ). We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006) ). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex.2009) ; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004).

Because the trial court's summary judgment order does not state the bases for the trial court's decision, we must affirm the order if any of the theories presented to the trial court and preserved for appellate review are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003) ; Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

III. Analysis

A. Duty to Warn

In his second and third issues respectively, Duncan argues that there was a genuine issue of material fact as to whether he had actual knowledge of the dangerous condition posed by the platform and that even if Duncan had actual knowledge, the trial court erred by concluding that his knowledge relieved First Texas of its duty to warn of or make safe the condition.

First Texas is a nonsubscriber to the Texas Workers' Compensation Act. See Tex. Lab. Code Ann. § 406.002(a) (West 2006) (“Except for public employers and as otherwise provided by law, an employer may elect to obtain workers' compensation insurance coverage.”). In an action against an employer by an employee who is not covered by workers' compensation insurance, the employee “must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment.” Id. § 406.033(d) (West Supp. 2014); see id. § 406.002(a) ; Kroger Co. v. Keng , 23 S.W.3d 347, 352 (Tex.2000).

The first step in evaluating Duncan's claim is determining the nature and scope of First Texas's duty. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex.2008) (“Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.”). In a premises liability case, “the scope of the duty turns on the plaintiff's status.”Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.2010). Here, the parties do not dispute that Duncan, as First Texas's employee, was an invitee when the incident in question occurred. See Barton v. Whataburger, Inc., 276 S.W.3d 456, 466 (Tex.App.–Houston [1st Dist.] 2008, pet. denied) (“Employees are the invitees of their employer.”). An employer's duty to his employees is identical “in all material respects” to a landowner's duty “to use reasonable care to make his premises reasonably safe for the use of his invitees.” Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 340, 280 S.W.2d 238, 240 (1955) ; see Leal v. McDonald's Corp., No. 03–05–00500–CV, 2009 WL 2410853, at *4 (Tex.App.–Austin Aug. 5, 2009, no...