Opinion
CIVIL ACTION NO. 2:22-CV-00160
2023-07-10
Sylvia MALDONADO, Plaintiff, v. AEP TEXAS INC., et al., Defendants.
Jose Evan Barrera, III, Jose E. Barrera PC, Corpus Christi, TX, for Plaintiff. G. Don Schauer, Schauer & Simank, PC, Corpus Christi, TX, for Defendants.
Jose Evan Barrera, III, Jose E. Barrera PC, Corpus Christi, TX, for Plaintiff. G. Don Schauer, Schauer & Simank, PC, Corpus Christi, TX, for Defendants. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DAVID S. MORALES, UNITED STATES DISTRICT JUDGE
Before the Court is Defendant AEP Texas Inc.'s motion for summary judgment. (D.E. 20). For the reasons stated below, the Court GRANTS the motion. (D.E. 20). A final judgment will be entered separately.
I. Background
This is a premises liability case. See (D.E. 19, p. 1-2). Plaintiff Sylvia Maldonado suffered multiple injuries when she tripped and fell on a rolled-up carpet while providing cleaning services for Defendant AEP Texas Inc. (D.E. 21-1, p. 1). Plaintiff was an employee of DNR Janitorial Services of South Texas, LLC, an independent contractor with whom Defendant contracted for custodial services. (D.E. 20-4, p. 2-3). Plaintiff's sole responsibility was to "clean the AEP office." (D.E. 21-1, p. 3). She received "no other assignments." Id. Plaintiff worked for Defendant for at least a year prior to the injury, sweeping and mopping Defendant's office floor. (D.E. 21-1, p. 3). At least two days before the injury occurred, Plaintiff noticed that a rolled-up carpet had been delivered to the office, id. at 7, and was left "in the entry doorway[,]" (D.E. 21-4, p. 1). Plaintiff told her supervisor about the carpet, who then ordered Plaintiff "not to move or touch the carpet in any way" and "to clean around it and to step over it entering and exiting the building." Id. Plaintiff complied, since she was typically expected to not move packages, and proceeded to clean around the carpet for the next couple of days. (D.E. 21-1, p. 6-8).
Plaintiff also originally named Sammy Palacios—her direct supervisor—as a defendant, but he has since been dismissed as improperly joined. (D.E. 18).
On the date of her injury, May 29, 2020, (D.E. 21-1 at p. 7), Plaintiff had finished mopping, gazed out the front window, turned around to exit the building, and then tripped on the carpet. Id. at 6-8. Photos of the rolled-up carpet show that the carpet had a conspicuous green color, was roughly at ankle height, and jutted several feet into the hallway. (D.E. 20-2; D.E. 20-3). Plaintiff acknowledged that she knew the carpet was there, that the carpet was plainly visible, and that the carpet was "to the left of the doorway." (D.E. 21-1, p. 12). The carpet had not been moved from the time of its arrival to the time of Plaintiff's injury. Id. at 8.
Although the carpet was rolled-up, thus exposing mostly the black underside, the green color remains visible at the edges, and the black underside contrasts with the color of the tile flooring.
Defendant filed the pending motion for summary judgment. (D.E. 20). Plaintiff responded. (D.E. 21). This order follows.
II. Legal Standard
Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing law . . . ." Id. In determining whether a judgment as a matter of law is appropriate, the court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505. The "court must view the evidence 'in the light most favorable to the [nonmovant].' " Tolan v. Cotton, 572 U.S. 650, 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
The movant bears the "initial responsibility" to present evidence proving that no genuine dispute of material fact exists, but the movant does not have to present supporting evidence "negating the opponent's claim." See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (emphasis omitted). If the movant "fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the movant meets this burden, then the burden shifts to the nonmovant to "go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). If the nonmovant fails to meet this burden, then the movant is entitled to judgment as a matter of law. Id. at 1076.
III. Analysis
Plaintiff asserts the following against Defendant in her live complaint: negligence, res ipsa loquitur, and respondeat superior. (D.E. 19, p. 2-5). Defendant contends Plaintiff's claims, in actuality, reduce to one premises liability claim. (D.E. 20, p. 6). The Court agrees.
When an injury is "caused by a condition created by the activity rather than the activity itself, a plaintiff is limited to a premises defect theory of liability." Martinez v. Wal-Mart Stores Tex. LLC, No. 7:21-cv-00207, 2022 WL 597039, at *3 (S.D. Tex. Feb. 28, 2022) (Alvarez, J.) (quoting Kroger Co. v. Persley, 261 S.W.3d 316, 319 (Tex. App—Houston [1st Dist.] 2008, no pet.)); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) ("A negligent activity claim requires that the claimant's injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity; whereas a premises defect claim is based on the property itself being unsafe.). The competent summary judgment evidence shows that Plaintiff's injury resulted from a condition existing on the premises (the rolled-up carpet) and not from an affirmative action by Defendant. See (D.E. 19, p. 1-2); Martinez, 2022 WL 597039, at *4 ("[F]ailure to remedy a potentially harmful condition . . . does not substantiate a negligent activity claim."). Moreover, it appears from Plaintiff's response that she agrees with Defendant that her claims sound in premises liability. See (D.E. 21, p. 1) ("Plaintiff . . . sued [Defendant] . . . for negligence of the premises variety ." (emphasis added)); id. at 5 ("Plaintiff has presented evidence of a premises negligence claim[.]" (emphasis added)). As such, the Court treats Plaintiff's claims as a singular premises liability cause of action.
Premises liability as a cause of action stems from a landowner's duty to warn others of "concealed hazards of which the [landowner] is aware, or reasonably should have been aware, but the [invitee] is not." Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 201 (Tex. 2015). At Texas common law, a plaintiff must prove that the defendant owes a duty and that four additional elements are met to succeed on a premises liability claim:
(1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner's failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014) (per curiam) (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000)).
Defendant argues summary judgment is warranted on the premises liability claim because (1) the rolled-up carpet was open and obvious as a matter of law, thus absolving Defendant of the duty to warn, (D.E. 20, p. 6-14); (2) Chapter 95 of the Texas Civil Practice and Remedies Code shields Defendant from liability, id. at 14-21; and (3) Plaintiff lacks sufficient evidence to satisfy the elements of a premises liability claim, id. at 21-23. The Court addresses each argument separately.
Defendant devotes a portion of the summary-judgment motion refuting Plaintiff's purported claims for gross negligence. Id. at 19-21. Plaintiff's live complaint does not list gross negligence as a separate cause of action. See (D.E. 19). Instead, Plaintiff references gross negligence in the "damages" section of the complaint. See id. at 3-4. Plaintiff's response to Defendant's summary-judgment motion's gross negligence argument is as follows: "Defendants further argue that since chapter 95 and the open and obvious doctrine entitle it to summary judgment then plaintiff's claim for gross negligence should be summarily dismissed. Plaintiff requests the court deny Defendants' request to summarily dismiss plaintiff's gross negligence claim." (D.E. 21, p. 5). As stated supra, Plaintiff's claims sound in premises liability—not negligence. As such, to the extent that Plaintiff asserts a claim for gross negligence in addition to her premises liability cause of action, the Court finds that summary judgment is warranted because "[a] plaintiff who cannot support a negligence cause of action cannot succeed on gross negligence . . . ." Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.—Fort Worth 1996, writ denied) (first citing Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.—Houston [14th Dist.] 1994, writ denied); and then citing Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.—Austin 1990, writ denied)), cited approvingly in Jezek v. R.E. Garrison Trucking, Inc., 637 F.Supp.3d 445, 453-54 (N.D. Tex. 2022) (O'Connor, J.) (designated for publication); see infra section III.A.
A. Open and Obvious
Defendant argues the rolled-up carpet was open and obvious as a matter of law, absolving Defendant of the duty to warn. (D.E. 20, p. 6-14). The Court agrees.
Under Texas law, when a hazardous condition is "open and obvious or known to the invitee," the duty to warn ceases to exist because open and obvious hazards are equally discoverable by landowners and invitees alike. See Austin, 465 S.W.3d at 203. Plaintiff erroneously relies on Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978), to argue that a hazardous condition's open and obvious nature bears on a plaintiff's contributory negligence, rather than affecting a defendant's duty. (D.E. 21, p. 4-5). However, the Texas Supreme Court in Austin has clarified that Parker stands for the "necessary-use exception" to the open and obvious rule, 465 S.W.3d at 207-08, an exception which Plaintiff does not invoke here.
Plaintiff asserts that she "had to enter and exit the doorway area several times while cleaning the office." (D.E. 21, p. 6). Even if the Court were to liberally construe Plaintiff's response to Defendant's summary judgment motion as an attempt to invoke the necessary-use exception, the Court nonetheless rejects Plaintiff's argument because Plaintiff does not provide any evidence for this unpled allegation, and the Court will not assume the existence of such evidence absent proof provided by the nonmoving party. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 357 (5th Cir. 2017) (citing Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005)).
A hazard is open and obvious when the "totality of the particular circumstances" objectively demonstrates that a "reasonably prudent person" person in similar circumstances would have "knowledge and full appreciation of the nature and extent of the danger . . . as a matter of law." Dougay v. Dolgencorp of Tex., Inc., No. 22-40479, 2023 WL 2809155, at *2 (5th Cir. April 5, 2023) (per curiam) (internal quotation marks omitted) (quoting Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788-89 (Tex. 2021)). There is no precise or exhaustive list of considerations under the broad totality-of-the-circumstances approach. However, a survey of Texas federal district and state court rulings reveals that courts generally treat unobscured, stationary impediments which can be easily distinguished from their surroundings as open and obvious as a matter of law. See Sauls v. 24 Hour Fitness USA, Inc., No. 19-cv-00953-O, 2022 WL 296051, at *3-4 (N.D. Tex. Feb. 1, 2022) (O'Connor, J.) (hot tub), appeal filed, No. 22-10182 (5th Cir. Feb. 24, 2022); Ille v. Lowe's Home Ctrs., LLC, No. 20-CV-143-H, 2021 WL 6063112, at *9 (N.D. Tex. Dec. 20, 2021) (Hendrix, J.) (unattended flatbed cart); Rincon v. Home Depot U.S.A., Inc., No. 17-CV-02909-X, 2019 WL 6118406, at *3-4 (N.D. Tex. Nov. 15, 2019) (Starr, J.) (nylon strap on floor); Reeves v. Home Depot, U.S.A., Inc., No. AU-16-CA-00615, 2018 WL 405120, at *4 (W.D. Tex. Jan. 12, 2018) (Sparks, J.) (protruding lift platform); Dunn v. Wal-Mart Stores, Inc., No. 17-CV-1187-K, 2018 WL 4772408, at *3 (N.D. Tex. Oct. 2018) (Kinkeade, J.) (wrinkled floor mat); Hughes v. Kroger Tex., L.P., No. 15-CV-0806-M, 2016 WL 3390510, at *3 (N.D. Tex. Mar. 4, 2016) (Lynn, J.) (raised patch of concrete); Culotta v. DoubleTree Hotels, LLC, No. 01-18-00267-CV, 2019 WL 2588103, at *4 (Tex. App.—Houston [1st Disk] June 25, 2019, pet. denied) (ankle-high water-feature ledge); Jordan v. Tex. Child. 's Hosp., No. 14-17-00699-CV, 2018 WL 4137209, at *4, *6 (Tex. App.—Houston [14th Dist.] Aug. 30, 2018, no pet.) (algae covered wooden ramp).
Viewing the facts in the light most favorable to Plaintiff, the rolled-up carpet was open and obvious because the carpet was (1) unobscured; (2) stationary; (3) easily distinguishable from its surroundings; and (4) known to Plaintiff. First, Plaintiff admitted in her deposition, and photographic evidence confirms, that the rolled-up carpet was in plain view, not hidden by any obstruction. See (D.E. 21-1, p. 12; D.E. 20-2; D.E. 20-3). Second, the rolled-up carpet remained in the exact same spot (i.e., stationary) from the moment Plaintiff first noticed the rolled-up carpet to the moment Plaintiff tripped and fell. (D.E. 21-1, p. 8). Third, the rolled-up carpet was easily distinguishable from its surroundings both by its significant spatial presence and by its contrasting color scheme. See (D.E. 20-2; D.E. 20-3). And fourth, Plaintiff successfully cleaned around the rolled-up carpet for at least two days prior to tripping, (D.E. 21-1, p. 7-8), indicating not only an awareness of the hazard, but also an ability to take appropriate steps to avoid it. See Reeves, 2018 WL 405120, at *4 (noting that the plaintiff "walked past the [hazard] at least twice before eventually tripping"). Whether the carpet was "in the entry doorway," (D.E. 21-4, p. 1), or "to the left of the doorway," (D.E. 21-1, p. 12), is immaterial; in either case, Plaintiff knew of the hazard and how to avoid the same. Considering these facts, the totality-of-the-circumstances show that the rolled-up carpet was open and obvious or otherwise known to the Plaintiff, thereby discharging Defendant's duty to warn. As such, the Court finds that summary judgment is warranted on grounds that Defendant's duty to warn was discharged by the rolled-up carpet's open and obvious condition.
B. Chapter 95
Defendant argues that an application of Chapter 95 of the Texas Civil Practice and Remedies Code shields Defendant from liability in this case. See (D.E. 20, p. 15-19). The Court disagrees, as Chapter 95 is inapplicable here.
Chapter 95 provides owners of real property heightened premises liability protection by insulating landowners from qualifying injuries suffered by employees of independent contractors. See TEX. CIV. PRAC. & REM. CODE Ann. § 95.003. The defendant initially bears the burden to prove that Chapter 95 protection applies in a case; once proven, the burden shifts to the plaintiff to show that the stipulations in § 95.003(1)-(2) are satisfied before a court can permit recovery. Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.-Houston [14th Dist.] 2008, no pet.) (holding that a defendant landowner must "conclusively prove[ ] that Chapter 95 applies," before the burden appropriately shifts back to the plaintiff), cited approvingly in Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 568 (Tex. 2016); Rawson v. Oxea Corp., 557 S.W.3d 17, 25 (Tex. App.-Houston [1st Dist.] 2016, pet. dism'd) ("A property owner . . . has the burden of establishing Chapter 95's application to a plaintiff's claims. Once the property owner has met their burden of establishing Chapter 95's application, the burden then shifts to the plaintiff to establish the requirements of Section 92.003[.]").
The statute reads in full:
A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
Id.(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.
Chapter 95, however, is not unlimited in scope. Chapter 95 shields property owners from liability only from claims:
(1) against the property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; andTEX. CIV. PRAC. & REM. CODE Ann. § 95.002 (emphasis added). The Court finds that Defendant has not carried its burden of showing Chapter 95's applicability to this case. Although it is uncontested that Plaintiff is an employee of an indepdent contractor, see (D.E. 20-1, p. 3; D.E. 21-4, p. 1), Defendant has failed to show how Plaintiff's work activities constitute "construct[ion], repair[ ], rennovat[ion], or modifi[cation,] see § 95.002(2).
(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs , repairs , renovates , or modifies the improvement.
As neither the statute nor the Supreme Court of Texas has defined these terms, the Court looks to the statute's plain language. See George v. SI Grp., Inc., 36 F.4th 611, 622 (5th Cir. 2022) (citing Marlow, L.L.C. v. BellSouth Telecomms., Inc., 686 F.3d 303, 307 (5th Cir. 2012)). "Plain meaning controls 'unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results." Id. (citing Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)). The Fifth Circuit interpreted § 95.003's plain language in George, concluding that washing the interior of a chemical tank did not constitute construction, repair, renovation, or modification for § 95.002(2) purposes because the act of washing a tank does "not involve changing the form of the tank in any way[.]" Id. (cleaned up). The George court further recognized that "[n]o ordinary speaker of English, applying the plain meanings of these statutory terms, would reasonably conclude that spraying the interior of a tank with hot water constitutes 'construc[tion],' 'repair[ ],' 'renovat[ion],' or 'modifi[cation]' of the tank itself." Id. (alterations in original) (citing § 95.002). George's analysis controls here.
In this case, no reasonable person could conclude that sweeping and mopping a floor plainly qualifies as "construct[ion], repair[ ], rennovat[ion], or modifi[cation]." § 95.002(2). Plaintiff's sole responsibility was to "clean the AEP office." (D.E. 21-1, p.3). She received "no other assignments." Id. Following George's reasoning, the Court holds that purely janitorial services do not meet the statutory requisites for Chapter 95 applicability. See also Moore v. Howmet Corp., No. CA 7:03-CV-0215-R, 2005 WL 856852, at *5 (N.D. Tex. Apr. 12, 2005) (Buchmeyer, J.) ("[R]outine janitorial services is not the type of work contemplated by Chapter 95."), cited approvingly in Bryan v. Shell Offshore Inc., 179 F. App'x 906, 909-10 (5th Cir. 2006).
Importantly, the Court approves of the conclusion reached in Moore and Bryan that janitorial services do not qualify for Chapter 95 protection, but declines to follow Moore's and Bryan's reasoning that Chapter 95 does not apply because janitorial services are neither "inherently dangerous" nor "require[ ] the expertise of a professional." Moore, 2005 WL 856852, at *2; Bryan, 179 F. App'x at 909-10. Such reasoning "grafts limitations on the application of Chapter 95 that are not found in the statutory language." Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 514 (Tex. App.—El Paso 2013); Martin v. WPP Properties, LLC, No. 12-20-00243-CV, 2021 WL 2816411, at *4 (Tex. App.—Tyler June 30, 2021) (citing Montoya, 417 S.W.3d at 514). The plain language of § 95.002 alone is sufficient to exclude janitorial services from Chapter 95 application. George, 36 F.4th at 622.
Additionally illuminating is that janitorial services do not resemble the work performed in other litigation involving Chapter 95. See SandRidge Energy, Inc. v. Barfield, 642 S.W.3d 560, 563 (Tex. 2022) (energized power line and transformer); Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 559 (Tex. 2016) (boilermaker valve maintenance); Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 44 (Tex. 2015) (chemical pipeline insulation); Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 242 (5th Cir. 2005) (offshore oil rig platform refurbishment); Rose v. Callon Petrol. Co., 650 Fed. Appx. 240, 241 (5th Cir. 2016) (per curiam) (oil rig raking); Spears v. Crown Central Petrol. Corp., 133 Fed. Appx. 129, 129 (5th Cir. 2005) (per curiam) (fluid catalytic cracking maintenance); Credeur v. MJ Oil Inc., 123 Fed. Appx. 585, 587 (5th Cir. 2004) (per curiam) (oil well mud filtration). For all the above reasons, the Court finds that Defendant has not shown that Chapter 95 applies to this case and therefore has not shown that summary judgment is warranted under Chapter 95.
C. Lack of Evidence
Finally, Defendant asserts that Plaintiff (1) "lacks evidence that AEP Texas had actual knowledge of a danger but failed to warn" and (2) "lacks evidence to prove AEP Texas exercised or retained control over the manner in which she performed her work as required under Chapter 95." (D.E. 20, p. 22). The Court is not persuaded by either argument.
First, Plaintiff notified her direct supervisor, Sammy Palacios, about the carpet prior to her fall. (D.E. 21-4, p. 1). This is evidence that Defendant had knowledge of the condition because Palacios is an employee of Defendant, see id., and the Court imputes business landowners with knowledge of a hazard if a company's employee is "told of the harmful condition prior to the plaintiff's injury." Garcia v. Ross Stores, Inc., 896 F. Supp. 2d 575, 580 (S.D. Tex 2012) (Ellison, J.) (citing Keetch v. Kroger, 845 S.W. 2d 262, 264 (Tex. 1992)). Accordingly, the Court rejects Defendant's first assertion. Second, because Chapter 95 is inapplicable, see supra section III.B., the Court rejects Defendant's latter assertion as irrelevant. As such, summary judgment is not warranted on this ground.
IV. Conclusion
For the reasons stated above, the Court GRANTS Defendant's motion for summary judgment. (D.E. 20). A final judgment will be entered separately.
SO ORDERED.