Zavala v. Burlington Northern Santa Fe Corp.

• Decision Date: 24 August 2011
• Docket Number: No. 08–10–00169–CV.,08–10–00169–CV.
• Citation: 355 S.W.3d 359
• Parties: Jesus ZAVALA, Jr., Appellant, v. BURLINGTON NORTHERN SANTA FE CORPORATION, Appellee.
• Court: Texas Court of Appeals

355 S.W.3d 359

Jesus ZAVALA, Jr., Appellant,

v.BURLINGTON NORTHERN SANTA FE CORPORATION, Appellee.

No. 08–10–00169–CV.

Court of Appeals of Texas, El Paso.

Aug. 24, 2011.

Joseph Isaac, Scherr & Legate, PLLC, El Paso, for Appellant.

Debora B. Alsup, Thompson & Knight, L.L.P., Austin, for Appellee.

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Jesus Zavala, Jr. filed suit against Burlington Northern Santa Fe Corporation (BNSF) alleging strict products liability, premises liability, and negligence for personal injuries sustained while attempting to open a railcar hopper door to unload sugar. BNSF filed a motion for summary judgment asserting it was entitled to judgment as a matter of law as to all of Zavala's claims. The trial court granted BNSF's motion in its entirety and Zavala appeals. He brings three issues for review: (1) the trial court erred generally in granting summary judgment; (2) the trial court erred in granting summary judgment on his strict products liability claims; and (3) the trial court erred in granting summary judgment on his negligence and premises liability claims. For the reasons that follow, we affirm.

FACTUAL BACKGROUND

Jesus Zavala, Jr. worked for Randstad North America, L.P., an employment agency that assigns employees to various other agencies. At the time of the incident, Zavala was assigned to Commodity Specialists Company, LLC (CSC). Zavala's duties at CSC included loading and unloading BNSF hopper rail cars. The hopper cars are loaded from the top with sugar, grain, or pellets. The cars are designed such that as the granular material is loaded, it is funneled to a rectangular section at the bottom of the car. The car is then unloaded from the bottom through a door at the end of a chute. The door on the chute is opened and closed by rotating the “chute door-opening mechanism.” One method of opening the chute door is to insert a metal rod into a hole in the opening mechanism and pushing or pulling the bar, causing the opening mechanism to rotate and the door to slide open.¹ The device used to turn the opening mechanism, i.e. the metal rod, is furnished by the industry and is not supplied by BNSF.

Zavala sustained his injury on or about January 17, 2007, while attempting to open one of the chute doors using a metal rod furnished by CSC. He contends he properly inserted the bar into the opening mechanism, but was unable to open the door on his own. At that point he asked for help and Tomas Cadena and Jesus Castaneda came to assist him. Zavala alleges the opening mechanism was stuck, but it ultimately gave way when the three men exerted pressure on the rod, injuring his right wrist in the process. According to Zavala, the chute door opening mechanism was owned and operated by BNSF and failed to operate as required, thus causing his injuries. He further alleges the chute door opening mechanism was unreasonably dangerous and unsafe.

Zavala could not identify the exact car which injured him or pinpoint any specific defect on the car. He did not see the hopper car again, but he identified the opening mechanism on a BNSF model 450 car as the “same or substantially similar hopper loading mechanism I was injured on.”

On the date of injury, Zavala was on duty from 3 p.m. until 11 p.m., and the incident occurred at approximately 4:30 p.m.² According to the BNSF spotting record, no model 450 cars were on site at any time during Zavala's shift that day. However, there was a model 450 series car on the spotting record, car No. 450678 which was released at 12 p.m. Car No. 450678 was inspected, photographed, and videotaped.

STANDARD OF REVIEW

Summary judgment procedure allows the trial court to promptly dispose of cases involving unmeritorious claims or untenable defenses. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 n. 5 (Tex.1979). To prevail on a summary judgment, the movant has the burden of proving that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005); De Santiago v. West Texas Community Supervision & Corrections Department, 203 S.W.3d 387, 398 (Tex.App.-El Paso 2006, no pet.). Once the movant establishes a right to judgment as a matter of law, the burden shifts to the non-movant to produce evidence raising a genuine issue of material fact. Clear Creek Basin Auth., 589 S.W.2d at 678–79. In deciding whether there is a disputed material fact precluding summary judgment, we take as true evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the motion. Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). We cannot affirm a summary judgment on grounds other than those specified in the motion. Tex.R.Civ.P. 166a(c). However, where as here, the trial court grants a summary judgment without stating its grounds for doing so the reviewing court will affirm if any theory advanced in the motion below is meritorious. Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d at 215; Painter v. Momentum Energy Corp., 271 S.W.3d 388, 393 (Tex.App.-El Paso,2008, pet. denied).

NEGLIGENCE AND PREMISES LIABILITY

We begin with Issue Three wherein Zavala complains of summary disposition of both his negligence and premises liability claims.

Negligence

The negligence of which Zavala complains involves conduct relating to the unreasonably dangerous condition of the hopper car opening mechanism. To simplify the analysis below, we first dispose of his ordinary negligence claims.

In addition to his strict products liability and premises liability claims, Zavala alleged that BNSF was negligent under a laundry list of negligence theories, all of which tie directly to allegations that BNSF negligently designed, marketed, and/or assembled the hopper car opening mechanism and placed it into the stream of commerce in a defective condition.³ Generally, Zavala alleges that BNSF was negligent because the hopper car did not work safely for the foreseeable uses, BNSF knew of these problems before placing the hopper car into the stream of commerce, and such acts proximately caused Zavala's injuries. He claims BNSF owed a duty, breached that duty, and caused damages by one or more of thirty-one alternative negligence theories. Zavala also relied on the doctrine of res ipsa loquitor.⁴

The Dallas Court of Appeals has addressed a similar situation and found that where the appellant alleged no negligence other than conduct relating to whether the product was unreasonably dangerous when sold, the negligence theories were, “encompassed and subsumed in their defective product theories, and appellants' burden at trial would be to prove injury resulting from a product defect.” Shaun T. Mian Corp. v. Hewlett–Packard Co., 237 S.W.3d 851, 857 (Tex.App.-Dallas 2007, pet. denied), citing Ford Motor Co. v. Miles, 141 S.W.3d 309, 315 (Tex.App.-Dallas 2004, pet. denied) and Simms v. Southwest Texas Methodist Hosp., 535 S.W.2d 192, 197 (Tex.Civ.App.-San Antonio 1976, writ ref'd n.r.e.). Therefore, any error in disposing of the negligence claims could not have, “caused the rendition of an improper judgment or prevented appellants from properly presenting their case to this Court.” Id. citing Tex.R.App.P. 44.1(a). We similarly conclude that Zavala's right to recover stands or falls on the outcome of his products liability claims. See id.

Premises Liability

Zavala also suggests that the summary judgment evidence raised genuine issues of material fact as to the premises liability claims raised against BNSF. Premises liability is a type of ordinary negligence action brought by someone who claims to have been injured by a condition of the property, as opposed to an action brought by someone who claims to have been injured by a negligent activity on the property. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). The elements for the two causes of action are essentially the same in that both invoke the concepts of duty, breach, and causation.

The threshold inquiry in a negligence case, including one of premises liability, is “whether the defendant owes a legal duty to the plaintiff.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); see Berry Property Management, Inc. v. Bliskey, 850 S.W.2d 644, 654 (Tex.App.-Corpus Christi 1993, writ dism'd). In describing “duty,” the Texas Supreme Court has stated generally that “if a party negligently creates a situation, then it becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.” El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987), quoting Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942).

As a general rule, a railroad has a duty to use reasonable care to furnish a car that is reasonably safe and free from any dangerous condition of which it either knew or, through the exercise of reasonable care, should have known. Kansas City Southern Railroad Company v. Guillory, 376 S.W.2d 72, 75 (Tex.Civ.App.-Beaumont 1964, writ ref'd n.r.e.). “The duty is not due an invitee that the premises be altered or changed to obviate known and obvious dangers for he takes the premises as they are. The occupier of premises has no duty to warn a business invitee of dangerous condition that are obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupier.” Id. (internal citations omitted).

When determining the duty of an owner and occupier of premises, the right to control the premises is usually the most important factor. See Butcher v....