Guidry v. Neches Butane Products Co.
| Decision Date | 08 April 1971 |
| Docket Number | No. 7226,7226 |
| Citation | 466 S.W.2d 389 |
| Parties | Paul Ray GUIDRY, Appellant, v. NECHES BUTANE PRODUCTS CO. et al., Appellees. |
| Court | Texas Court of Appeals |
William E. Townsley, Beaumont, for appellant.
Strong, Pipkin, Nelson, Parker & Powers, Weller, Wheelus, green & Brocato, Beaumont, for appellees.
Summary judgment was rendered against plaintiff, Guidry, in his third-party action brought against Neches Butane Products Company (hereinafter 'Neches') to recover damages for personal injuries he sustained while in the course of his employment with Foster-Wheeler Corporation (hereinafter 'Foster') while working within the plant of Neches. Foster was made a third-party defendant, and it impleaded as a third-party defendant Tri-Co, Inc. Liberty Mutual Insurance Company, the subrogated workmen's compensation insurance carrier intervened. The judgment denied Guidry a recovery on his action, denied Neches a recovery against Foster, and approved Foster's nonsuit against Tri-Co.
Plaintiff was a pipe foreman employed by Foster upon a building project pursuant to contract between Foster, Goodrich-Gulf Chemicals, Inc., and Texas-U.S. Chemical Company, the joint owners of Neches. At the time he received his injuries, Guidry was assisting in the movement of a large heat exchanger which was being lifted by a mobile crane rented by Foster from Tri-Co. The crane was equipped with four outriggers to provide stability during the lifting operation. Guidry had other workers place these four outriggers on firm-looking soil. Mats for use under the outriggers to prevent their sinking when the load was placed thereon were available but were not used. As the crane lifted the heat exchanger, it turned and stopped momentarily. Suddenly, the outrigger bearing the bulk of the weight sank into the surface of the ground some ten inches, causing the heat exchanger to strike Guidry, inflicting serious injuries, for which he sued.
The defendants, Neches Butane and Foster, state in their motion for summary judgment that they rely upon the pleadings, the depositions on file, and the contract between Goodrich-Gulf Chemicals, Inc., Texas-U.S. Chemical Company, Neches Butane Products Company and Foster. There are no sworn pleadings in this case. The pleadings serve only to allege matters which, if proved, would require a judgment for or against the movant for summary judgment and are not evidence in the case. Further, if the plaintiff Guidry expected to defeat the motion for summary judgment by showing an issue of a material fact, it was incumbent upon him to come forward with 'evidence' sufficient to raise that question. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 951 (1960). By such opinion, and that of Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, 545 (Tex.Sup., 1971), it is unquestionably settled that in summary judgment proceedings, pleadings, even if sworn to, do not constitute summary judgment evidence.
Foster was an independent contractor upon the job in question, and the supervision of Neches was limited to that of having an engineer upon the job to see that the work was done in accordance with the specifications contained in the contract. He had no control over the employees of Foster who were engaged in the performance of the work.
In his pleadings, Guidry charged that Neches, as owner of the premises, was negligent in creating a dangerous condition in the sub-soil where the outrigger of the crane sank, the dangerous condition being an unstable condition which was created before Foster entered upon the job site. Plaintiff also had allegations that Neches failed to warn him of the dangerous conditions of the soil, failed to properly inspect the soil and the surface at the time its original condition was altered, failed to restore the soil to a stable condition, and failed to ascertain that the soil would not support the weight of the crane and heat exchanger at the time of the accident.
The crane with the outriggers weighed fifteen tons, while the heat exchanger weighed slightly in excess of twelve tons. Guidry was an experienced workman upon such projects and, before making the movement, he inspected the ground where he directed the placement of the outrigger and the soil in the area looked firm, and to him it looked as good as concrete. The movement of the crane to the place of use did not cause any ruts. On a prior occasion, shortly before the accident, concrete trucks weighing fifteen tons and carrying twelve tons of material had passed over the area without incident.
Gary Graham, a mechanical engineer of Neches, was familiar with the area and the contract with Foster. Before the contract was let, Neches made some soil studies in the general area for use in the preparation of the specifications for the foundations and these studies were turned over to Foster for its use. From the depositions, it clearly appears that extensive sub-surface work had been done in the area from about 1951 to 1953 by another contractor who installed buried pipelines, etc., and the original contract had called for the covering of the area with six inches of oyster shell. Foster was furnished with the plans of the original work done in connection with the buried lines. There is no evidence that anyone actually inspected this area after the completion of the subsurface work, in about 1953 or during its construction. Guidry's accident occurred in October, 1964.
The crane operator, Foster's superintendent, as well as Guidry, were all experienced men in construction such as was involved here and there is evidence that on other occasions on other jobs similar movements had been made in safety.
For the purpose of our discussion of the case, Neches did not succeed in negativing, as a matter of law, the existence of a soft spot in the sub-surface area in the precise location where the outrigger of the crane penetrated the surface. None of the parties had any actual knowledge of the existence of this defect in the sub-surface area. When Neches Butane furnished Foster, Guidry's employer, and the independent contractor on the premises, with Plaintiff's Exhibit No. 2 (), each then knew the land was not in its original condition. Guidry, an experienced operator, inspected the surface before he placed the crane, considered it to be as good as concrete. With his experience, Guidry considered a visual inspection of the surface where the accident occurred was adequate to determine whether or not it was safe to use the crane on that surface. No one suggests that a visual inspection of the surface by an experienced operator was not such an adequate and reasonable inspection as a reasonably prudent person would make to determine whether or not a dangerous spot existed in that surface.
Further, the hidden and unknown condition, which proved to be dangerous considering plaintiff's use thereof, was neither open nor obvious, nor did plaintiff voluntarily assume the risk of injury from the use which he made of the premises upon the occasion of the accident. Nor do we reach the question of plaintiff's contributory negligence arising out of his own actions in attempting to lift the heat exchanger.
Our question may now be stated: Under the factual hypothesis herein set out, did Neches establish, as a matter of law, that there was no genuine fact issue as to liability?
Our consideration of the appeal, as may be noted from our statement of the question, is under the rule of law set out in Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.Sup., 1970):
'* * * the question on appeal, as well as in the trial court, is Not whether the summary judgment proof Raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment proof Establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action.' (Emphasis by the Supreme Court.)
From a few of the leading cases upon the subject, we distill this re sume of the obligations of the landowner:
1. The landowner is not an insurer of the safety of his invitees. McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940, 941 (1956).
2. He is required to keep his premises in a reasonably safe condition for his invitees. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378 (Tex.Sup., 1963).
3. Employees of contractors performing construction work on the premises are invitees thereon. Smith v. Henger, 148 Tex. 456, 226 S .W.2d 425, 431 (1950).
4. The duty of the landowner is to protect his invitees from dangers of which he knows or of which he should know in the exercise of ordinary care, which includes a duty to inspect. Halepeska, supra.
5. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect the invitees therefrom Or to warn them thereof . Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390, 392 (Tex.Sup., 1967).
6. An adequate warning to or full knowledge by the independent contractor of the dangers will discharge the duty to warn the employees of the contractor. Delhi-Taylor, supra, at p. 394.
7. The landowner's liability is said to rest on the 'owner's superior knowledge of the danger.' Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 500 (1952), quoting from 65 C .J.S. Negligence § 50, p. 543 ().
8. Some of these rules were restated in City of Beaumont v. Graham, 441 S.W.2d 829, 834 (Tex.Sup., 1969):
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Guidry v. Neches Butane Products Co.
...urged by Neches and Foster-Wheeler to plaintiff's suit, and the court of civil appeals, with a divided court, affirmed that judgment. 466 S.W.2d 389. We reverse the judgments of the courts below and remand the cause for Neches and Foster-Wheeler's summary judgment proof consists of several ......