Gomez v. Saratoga Homes

• Decision Date: 29 March 2017
• Docket Number: No. 08–14–00320–CV,08–14–00320–CV
• Citation: 516 S.W.3d 226
• Parties: Gerardo GOMEZ, Appellant, v. SARATOGA HOMES, Appellee.
• Court: Texas Court of Appeals

516 S.W.3d 226

Gerardo GOMEZ, Appellant,

v.SARATOGA HOMES, Appellee.

No. 08–14–00320–CV

Court of Appeals of Texas, El Paso.

March 29, 2017

Steven Samples, Enrique Chavez Jr., for Gerardo Gomez.

Stacy Hoffman Bruce, James A. Martinez, Hillary Lynch, for Saratoga Homes.

Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., not participating

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Gerardo Gomez sued Saratoga Homes after falling and suffering injuries while painting a home that was under construction. Saratoga owned the home and was acting as the general contractor in its construction. Saratoga moved for summary judgment on Gomez's negligence and premise liability claims, arguing that it owed no duty to Gomez: (1) because he was not Saratoga's employee but rather the employee of an independent contractor, and it did not retain or exercise actual control over the performance of Gomez's work; and (2) because the premises condition allegedly causing Gomez's injury was open and obvious. Gomez contends the trial court erred in granting summary judgment because he raised fact issues concerning Saratoga's control over his work and its duty to warn. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Saratoga served as the general contractor on numerous homes it owned and that were under construction in the El Paso area. Saratoga had entered into a written subcontract agreement with Gerardo Prieto to provide painting services on several of these homes. Prieto, in turn, had hired Gomez as part of his painting crew. In September 2011, Gomez was working at a Saratoga job site when he climbed onto the roof of the porch through a second story window, began walking sideways along the roof while looking up, and fell from the roof to the ground, fracturing his left ankle. Gomez originally sued both Prieto and Saratoga, but later dismissed Prieto from the lawsuit. Gomez raised a negligence claim, alleging that he was an employee of Saratoga and that Saratoga had negligently breached its duty to provide him a safe workplace by failing to train him and provide him with safety rules and regulations and safe machinery and equipment. In response, Saratoga denied that Gomez was its employee, but was instead an employee of one of its independent contractors. Gomez subsequently amended his petition and raised a premises liability claim, in which he argued he was an invitee or licensee and that Saratoga had breached its duty to him by failing to warn or make safe a known, dangerous condition on the premises that posed an unreasonable risk of harm. While Gomez's amended petition no longer alleged a negligence claim or that he was an employee of Saratoga or that Saratoga owed a duty to him as its employee, it is apparent from the pleadings below and the briefing in this Court that the parties have continued to assume that Gomez was still proceeding under both his negligence and premises liability theories.

Motion for Summary Judgment

Saratoga moved for summary judgment based on both traditional and no-evidence grounds. It alleged that Gomez's own testimony established that he was not its employee, but instead was an employee of Prieto, Saratoga's subcontractor, and that it owed no duty to Gomez because there was no evidence to suggest that Saratoga controlled or had a right to control Gomez's work. As summary judgment evidence, Saratoga attached an excerpt from Gomez's deposition, in which Gomez testified that he considered himself to be Prieto's employee, that he had interviewed for the painting job with Prieto, that he was trained by Prieto, that he was paid in cash by Prieto, and that it was Gomez's understanding that he "worked under" Prieto, and that Prieto in turn "worked under" Saratoga. Gomez also testified that Prieto was the only person who gave him instructions regarding which houses to paint, and that he never received any instructions from Saratoga regarding how to perform his job. Saratoga also attached a copy of its subcontractor agreement with Prieto, in which Prieto had agreed that Saratoga would have "no right of direction or control over the performance of [Prieto's] work except as to the results to be accomplished," and that Prieto "shall retain all control of work schedules, techniques and procedures of all work performed" by Prieto and his employees. Prieto further agreed to be responsible for implementing and enforcing all safety standards and procedures at the job site, and for assuring that all of his employees "follow all safety procedures, use all necessary safety equipment and precautions, and [to] generally keep the work site safe and free from undue risk."

Saratoga's motion also addressed Gomez's premises liability claim. It argued that a general contractor's duty to a subcontractor's employees is limited to inspecting the premises and warning of "concealed hazards" about which the contractor knew or should have known. Saratoga contended that any danger that existed on the premises was "open and obvious" and that Gomez was well-aware of the dangers he faced when working on the roof of a second-story porch without any safety equipment or railings. Saratoga pointed to Gomez's deposition testimony in which he testified that he was aware of the need to use a ladder while painting on the roof, but that he chose to work without one, and that he acknowledged he was aware of the danger involved in doing so prior to his accident.¹ Saratoga therefore argued that it did not owe Gomez a duty to warn him of that known danger.

Response to the Motion for Summary Judgment

In response, Gomez argued that: (1) fact questions remained whether he should be treated as an employee of Saratoga and whether Saratoga had control over his work, thereby giving rise to a duty to ensure that his work was conducted in a safe manner; and (2) the evidence demonstrated that Saratoga was aware that a safety hazard existed on the premises and that it had a duty to correct the hazard or warn him about it. In support of his arguments, Gomez relied on Prieto's deposition testimony, in which Prieto expressed his opinion that Saratoga's employees had controlled the details of his work, and that they were responsible for ensuring the safety of the job site. Gomez also attached a copy of Saratoga's safety manual, which provided that its employees were required to use appropriate safety equipment when they worked at heights over four feet, and asserted that this manual was applicable to all workers at the job site, including "contract" workers such as himself. He also relied on the deposition testimony of various Saratoga employees, who explained that appropriate safety equipment, as used in the safety manual, could include railings, safety nets, and safety harnesses to help prevent a worker from falling when working at height. His testimony further indicated that Saratoga had assigned certain employees to conduct daily inspections at its job sites to ensure the sites were in compliance with Saratoga's own safety rules and OSHA safety regulations. Gomez claimed that by doing so, Saratoga had assumed actual control of safety issues on the job site, and thereby owed a duty of care to all workers, including the "contract" workers at the job site, which it breached by failing to ensure that Prieto and his employees were using proper safety equipment while working on upper floors of the homes under construction. He contended that in light of the "extensive, virtually absolute, control of the manner of work performance in accordance with the corporate safety manual," he was not merely the employee of an independent contractor on the premises, and that he was instead an employee of Saratoga to whom Saratoga owed a duty of care. Gomez further argued that because Saratoga's employees were present at the job site every day, they must have been aware of the dangerous conditions existing at the job site, giving rise to a duty to warn the workers about those conditions, even if they were open and obvious. Following a hearing, the trial court entered a written order granting Saratoga's motion for traditional summary judgment, but denying its no-evidence motion.

ISSUES FOR REVIEW

Gomez contends on appeal that the trial court erred in granting summary judgment because: (1) the summary judgment evidence raised fact issues on the scope of Saratoga's control over its independent contractor; and (2) the open and obvious exception to Saratoga's duty as a landowner to warn was not applicable to him as an employee or to its "controlled contractor." Gomez also argues that the trial court abused its discretion in excluding some of his summary judgment evidence.

WAS SUMMARY JUDGMENT APPROPRIATE?

Standards of Review

We review a trial court's order granting summary judgment de novo.

KCM Fin. LLC v. Bradshaw , 457 S.W.3d 70, 79 (Tex. 2015). Traditional summary judgment is proper when the movant establishes that no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. See BCCA Appeal Group, Inc. v. City of Houston, 496 S.W.3d 1, 6–7 (Tex.2016). To be entitled to summary judgment, a defendant must conclusively negate at least one essential element of each the plaintiff's causes of action or establish all elements of an affirmative defense as a matter of law. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008). Once a defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence that raises a fact issue as to each challenged element of the plaintiff's claim or one element of the defendant's affirmative defense. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). On appeal, we review the summary judgment evidence in the light most favorable to the non-movant, "crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mann...