Saucedo v. Horner
| Decision Date | 31 August 2010 |
| Docket Number | No. 08-08-00340-CV.,08-08-00340-CV. |
| Citation | 329 S.W.3d 825 |
| Parties | Jesus Delgado SAUCEDO, Appellant, v. Alejandro Acosta HORNER, a/k/a Alejandro Acosta, Laura Acosta, Carolyn Rabe, Individually and as the Administratrix of the Estate of Carlyle J. Rabe, Jr., Appellees. |
| Court | Texas Court of Appeals |
Colbert Coldwell, Guevara, Rebe, Baumann, Coldwell & Reedman, L.L.P., El Paso, TX, for Appellant.
Alejandro Acosta Horner, Laura Acosta, El Paso, TX, pro se.
Joe P. Lopez IV, El Paso, TX, for Appellees.
Before CHEW, C.J., McCLURE, and RIVERA, JJ.
Jesus Delgado Saucedo appeals from an order granting summary judgment in favor of Alejandro Acosta Horner a/k/a Alejandro Acosta and Laura Acosta, and an order granting summary judgment in favor of Carolyn Rabe, Individually and as the Administratrix of the Estate of Carlyle J. Rabe, Jr. For the reasons that follow, we affirm.
Saucedo has been employed by Ciudad Juarez, Chihuahua, Mexico as a maintenance employee since 1991, but he also sought work in El Paso on his days off. Saucedo's relative, Cruzita Mejia, did ironing for the Acostas in El Paso and in March 2005, he asked her to help him find work. Mejia suggested that he ask the Acostas if he could do yard work for them. Saucedo went to the Acostas home and Mrs. Acosta initially told him that they did not have any work for him to do. After Mejia vouched for him and Saucedo told Mrs. Acosta that he needed money to eat, she hired him to clean the yard that day. Saucedo did not return until approximately mid-April because it was early in the growing season and there was no yard work for him to do. Saucedo called the Acostas about two weeks after Easter and they hired him to cut the lawn. Saucedo did not recall how many times he worked for the Acostas between March and August 2005, but he believed it was more than five times. Saucedo also did minor electrical and plumbing work for them during this time period and he generally worked at the house one or two days a week depending on what jobs they had for him to do.
Saucedo repeatedly asked Mr. Acosta to refer him to other people for work. A next door neighbor, Carlyle Rabe, had died in February 2005 and the yard was overgrown. Mr. Acosta mentioned to Mrs. Rabe, who lived out of town, that her yard needed to be cleaned and that Saucedo performed yard work for him. According to Mr. Acosta, Mrs. Rabe agreed to reimburse Mr. Acosta if he would pay Saucedo to cut the lawn and clean up the yard. Mr. Acosta subsequently told Saucedo that Mrs. Rabe wanted him to clean up the yard. On the day of the accident, August 2, 2005, Saucedo arrived at the Rabe house and began working. While attempting to fix one of the mowers, Saucedo put his hand under the blades while priming the motor. The motor started and the blade hit Saucedo's left thumb and caused an injury. Saucedo ran to the Acosta's home for assistance. Saucedo had medical benefits as a result of his employment with the Ciudad Juarez. Mr. Acosta asked Saucedo where he received medical treatment and Saucedo told him at the city hospital in Juarez. Mr. Acosta drove him to that hospital's emergency room. Mr. Acosta paid Saucedo for that day's work and gave him an additional 500 pesos before leaving the hospital.
Saucedo filed suit against the Acostas and against Mrs. Rabe, individually and as the administratrix of the estate of Carlyle J. Rabe. The petition alleged non-subscriber negligence, intentional infliction of emotional distress, and breach of the duty of good faith and fair dealing. The Acostas moved for summary judgment on no-evidence and traditional summary judgment grounds. Mrs. Rabe filed similar motions. The trial court entered separate orders granting summary judgment without specifying the basis for the court's ruling.
A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. Viasana v. Ward County, 296 S.W.3d 652 (Tex.App.-El Paso 2009, no pet.); Martinez v. Leeds, 218 S.W.3d 845, 848 (Tex.App.-El Paso 2007, no pet.). The party moving for no-evidence summary judgment must assert that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848; see Tex.R.Civ.P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements.Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848. To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of his claim or defense. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848.
The standard of review for traditional summary judgment under Tex.R.Civ.P. 166a(c) is well established. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985). The moving party carries the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004). All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Id. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action or if it conclusively establishes all elements of an affirmative defense. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002); Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). Once the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979); Scown v. Neie, 225 S.W.3d 303, 307 (Tex.App.-El Paso 2006, pet. denied).
Saucedo's non-subscriber negligence claim is purportedly based on Section 406.092(a) of the Texas Labor Code which provides that a resident or nonresident alien employee is entitled to compensation under the Workers' Compensation Act. Tex.Lab.Code Ann. § 406.092(a)(Vernon 2006). He alleged that the Acostas, individually or as agents for Mrs. Rabe and the estate of Carlyle Rabe, were negligent by failing to provide reasonably safe equipment to perform the yard work, by providing an unsafe piece of equipment, by failing to perform necessary repairs on the piece of equipment provided to Saucedo, and by failing to properly instruct him in the safe servicing and use of the equipment.
Saucedo's suit also claimed that Mr. Acosta intentionally inflicted emotional distress by transporting him to Juarez without seeking or obtaining medical treatment for his serious injury. Saucedo sued for breach of the duty of good faith and fair dealing arising from an employer-employee relationship. The breach of duty claim related to Mr. Acosta's conduct in transporting Saucedo to Juarez and intentionally abandoning him without obtaining medical care for his injury. Finally, Saucedo claimed to be the borrowed servant of Mrs. Rabe such that Mr. Acosta bore liability as her agent.
The Acostas contended that they owed no duty to provide Saucedo with safe equipment or to instruct him in the use of the lawnmower because he was an independent contractor rather than an employee. In a related ground, the Acostas reasoned that if Saucedo was an independent contractor rather than an employee, he could not be a borrowed servant. Saucedo has challenged both grounds in sub-parts (A) and (B) of Issue One.
The elements of a negligence cause of action are a legal duty, a breach of that duty, and damages proximately resulting from that breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998). The existence of duty is a threshold question of law. Id. The nonexistence of duty ends the inquiry into whether negligence liability may be imposed. Id. If the Acostas conclusively established that Saucedo was an independent contractor and not an employee, it would defeat the duty element of his non-subscriber negligence claim.
The test to determine whether a worker is an employee or an independent contractor is whether the employer has the right to control the progress, details, and methods of operation of the employee's work. Thompson v. Travelers Indemnity Company of Rhode Island, 789 S.W.2d 277, 278 (Tex.1990); Newspapers, Inc. v. Love, 380 S.W.2d 582, 585-90 (Tex.1964). This same test applies whether the claim arises at common law or under workers' compensation. Thompson, 789 S.W.2d at 278. The employer must control not merely the end sought to be accomplished, but also the means and details of its accomplishment. Id. Examples of the type of control normally exercised by an employer include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Id. at 278-79.
The Acostas' summary judgment evidence established that Mr. Acosta is a semi-retired attorney who is licensed to practice law in Mexico and has an office in Ciudad Juarez. Neither he nor Mrs. Acosta operate any kind of business at their home. Saucedo performed yard work, and minor plumbing and electrical repairs for them. He also painted a portion of the home's exterior. The Acostas did not consider Saucedo to be their employee. Saucedo specified the days he could work and he "always" worked from approximately 10 a.m. to about 6...
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