Science Spectrum, Inc. v. Martinez, 96-0496

• Court: Supreme Court of Texas
• Citation: 941 S.W.2d 910
• Docket Number: No. 96-0496,96-0496
• Parties: 40 Tex. Sup. Ct. J. 438 The SCIENCE SPECTRUM, INC., Petitioner, v. Arthur MARTINEZ, et al., Respondents.
• Decision Date: 18 April 1997

Page 910

941 S.W.2d 910 40 Tex. Sup. Ct. J. 438 The SCIENCE SPECTRUM, INC., Petitioner,
v.
Arthur MARTINEZ, et al., Respondents. No. 96-0496. Supreme Court of Texas. Argued Dec. 18, 1996.
Decided March 21, 1997.
Rehearing Overruled April 18, 1997.

Jack Flygare, John David Rosentreter, Lubbock, for petitioner.

J. Ken Nunley, Boerne, Ray Flagason, Lubbock, Thomas Black, San Antonio, for respondents.

CORNYN, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and SPECTOR, OWEN, BAKER and ABBOTT, Justices, join.

In this premises liability case we decide whether Science Spectrum, Inc., which occupied premises adjacent to that in which Arthur Martinez was injured, owed a legal duty to Martinez by virtue of its control of the premises where his injury occurred, or its creation of a dangerous condition. Based on Science Spectrum's motion for summary judgment and proof that it did not exercise control over the premises, the trial court granted the motion. The court then severed Martinez' claims against Science Spectrum from those alleged against the remaining defendants, thus rendering a final summary judgment. The court of appeals reversed and remanded, holding that "by creating a condition in the area adjacent to the leased space it controlled, Science Spectrum became responsible." --- S.W.2d ----, ---- (citing Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex.1993)). We disagree with the court of appeals' interpretation of Alexander as applied to the facts of this case,

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but for the reasons that follow, we affirm its judgment.

On June 7, 1990, Martinez received an electric shock when he cut through a live electrical wire while in the course and scope of his employment. Martinez and members of his immediate family (the Martinezes) sued numerous defendants, including Furr's, Inc.; Robert B. Bain, the Executor of the Estate of H.R. Gibson, Sr.; Smith & Fitzpatrick, d/b/a The 50th Street Caboose; and Science Spectrum, Inc., the sublessee of the premises adjacent to those where Martinez was working at the time of his injury.

The 50th Street Caboose, a restaurant in Lubbock, occupies part of a large building owned by the Estate of H.R. Gibson, Sr., but leased to and formerly occupied by Furr's, Inc. Furr's at one point partitioned the building and subleased portions to smaller businesses. Science Spectrum subleased a portion of the building and, as part of its sublease, agreed to construct a partition wall to enclose its leased space. It erected the partition in January 1989.

About one year later, Smith & Fitzpatrick, Inc. (S & F) subleased the premises adjacent to Science Spectrum and began to construct the 50th Street Caboose. Martinez was employed by S & F when he was injured. Although S & F had hired an electrical contractor to rewire its premises, S & F's foreman instructed Martinez to remove conduit and electrical wires to facilitate the rewiring. Following the foreman's assurances that there was no power to the 50th Street Caboose's space, Martinez began to remove the wiring. In so doing, he cut into a hot wire and was shocked.

Later, it was learned that although the electrical power to the 50th Street Caboose's premises had been turned off, the hot wire that Martinez cut was connected to an air conditioning compressor servicing Science Spectrum's premises. The compressor was mounted on the roof of the building over the 50th Street Caboose. The hot wire, as it was originally routed in 1969, traveled from Science Spectrum's premises through its ceiling, over the partition wall it had erected, through the 50th Street Caboose's ceiling, and out to the compressor.

The Martinezes alleged that the defendants, including Science Spectrum, "were negligent in creating and/or allowing a dangerous condition to exist on the premises which they controlled or with regard to the Science Spectrum, on adjoining premises." More specifically, the Martinezes alleged that Science Spectrum created the dangerous condition on the 50th Street Caboose's premises "by constructing a partition wall over said wiring in such a way as to create an unknown and disguised danger to individuals such as the Plaintiff, Arthur Martinez."

In its motion for summary judgment, Science Spectrum claimed in part that it owed no legal duty to Martinez because it had no control over, nor any right or duty to control, the premises where the accident occurred. The Martinezes responded that Science Spectrum caused the partition wall to be constructed in such a way that it created a condition that "in connection with the negligent acts of other co-defendants herein was a proximate cause" of Arthur's injuries. Science Spectrum replied and produced summary judgment evidence that it did not install, reroute, or alter the air compressor's wiring in any way.

Of course, summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), or pleads and conclusively establishes each element of an affirmative defense....