Guidry v. Neches Butane Products Co.

• Decision Date: 05 January 1972
• Docket Number: No. B--2770,B--2770
• Citation: 476 S.W.2d 666
• Parties: Paul Ray GUIDRY, Petitioner, v. NECHES BUTANE PRODUCTS COMPANY et al., Respondents.
• Court: Texas Supreme Court

Page 666

476 S.W.2d 666

Paul Ray GUIDRY, Petitioner, v. NECHES BUTANE PRODUCTS COMPANY et al., Respondents.

No. B--2770.

Supreme Court of Texas.

Jan. 5, 1972.

Rehearing Denied March 8, 1972.

William E. Townsley, Beaumont, for petitioner.

Strong, Pipkin, Nelson, Parker & Powers, Weller, Wheelus, Green & Brocato, George A. Weller, Beaumont, for respondents.

POPE, Justice.

Plaintiff Paul Ray Guidry instituted suit against Neches Butane Products Company for the recovery of damages for injuries he sustained in 1964 while in the course of his employment with Foster-Wheeler Corporation. He alleged that Neches' premises had a hidden, dangerous ground condition which caused his injury. Neches answered and also filed a third-party action against Foster-Wheeler on its indemnity agreement. The trial court sustained the motions for summary judgment 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 trial.

Neches and Foster-Wheeler's summary judgment proof consists of several depositions, including Guidry's, some drawings and pictures, and the contract between Neches and Foster-Wheeler. This proof shows that Foster-Wheeler contracted to erect a butadiene unit as an addition to Neches' Jefferson County industrial plant. Guidry was Foster-Wheeler's pipe foreman for the job and on the occasion of his injury was assisting in the placement of a twelve-ton heat exchanger on its foundation. Foster-Wheeler hauled the heat exchanger to the job site by trailer-truck and also brought in a mobile crane weighing thirty-five tons. The crane was to lift the heat exchanger from the truck and then swing it into position over the foundation. Neches had assigned a work area to Foster-Wheeler and, on the day of the accident, had told Guidry in what area he could use the crane. Guidry followed the instructions.

Guidry and other workers spotted the crane in an area that was surfaced with shell and then extended the crane's four outriggers as a means to steady the crane and relieve the weight from the rubber tires. Each outrigger sat on a base plate that was thirty-six inches square. Guidry's job was to signal the crane operator so the heat exchanger could be positioned on its foundation. The crane began its lift and moved the heat exchanger almost into position when suddenly the weight-bearing outrigger broke through a shell crust at the surface of the road and sank into the soil to a depth variously estimated as six to eighteen inches. To keep the crane from turning over, the crane operator quickly lowered the exchanger to the ground. In doing so, however, the heat exchanger swung out of position and fell on Guidry, causing severe injuries to his chest, face and feet.

Guidry alleged in his petition that Neches provided a work area in which there was a hidden weight-bearing weakness of the soil surface, that Neches created the dangerous condition before it made its contract with Foster-Wheeler and that Neches knew about it but neither made the premises safe nor warned Guidry or his employer of the danger. He also alleged that Neches failed to inspect the condition of the soil following a 1952 construction program, at which time Neches had installed two thirty-six inch water lines, and that Neches failed to restore the soil to a safe condition.

We granted the writ in this case because of several holdings in the majority opinion which violated Rule 166--A and misplaced the burden upon Guidry, the non-movant, to make proof of his cause of action. See, Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970); Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). We agree with the views expressed by Justice Stephenson in his dissenting opinion. 466 S.W.2d at 397.

Our problem is whether the trial court, upon the basis of the proof before it, correctly sustained Neches' and Foster-Wheeler's motions for summary judgment. In City of Beaumont v. Graham, 441 S.W.2d 829, 834 (Tex.1969), we restated the facts which Guidry must prove upon the trial of his action. We there stated the duties of an occupier in these words:

* * * Stated generally, these duties require elimination, or warning to the invitee, of hidden conditions which are unreasonably dangerous and which are known to the owner or occupier but are unknown to the invitee. They also require an owner or occupier to make such an inspection of the premises to discover hidden dangers as would be made by a reasonably prudent person in the exercise of ordinary care.

For summary judgment purposes, the burden was on Neches and Foster-Wheeler to prove facts which would show as a matter of law that Neches either owed no duty or...