Opinion
NO. 01-17-00293-CV
02-22-2018
LEWIS ALVIN MARTIN III, Appellant v. ECO SERVICES OPERATIONS, LLC, Appellee
On Appeal from the 269th District Court Harris County, Texas
Trial Court Case No. 2016-23873
MEMORANDUM OPINION
This is an appeal from a summary judgment in a premises-liability case. An employee of an independent contractor was injured as he was unloading sulfuric acid from his truck to a connection point at a chemical plant. The employee was using a heavy hose to unload the chemical. He pulled the hose when it caught on a metal plate or grate. The hose released and pushed against the employee's arm, causing a shoulder injury. The employee sued the plant owner, who moved for summary judgment. The trial court granted summary judgment, and the employee appeals. We conclude that no evidence exists that the plant owner had the right to control the employee's work activity in using the hose. Because the plant owner owed no duty to the independent contractor's employee, we affirm.
BACKGROUND
Lewis Martin worked for Dana Transport, moving sulfuric acid by truck from Port Arthur, Texas, to an ECO Services Operations, LLC facility in Houston. Dana Transport had trained Martin about the proper way to unload the sulfuric acid at ECO's facility. When Martin arrived at ECO's facility, he would drive his truck to a designated place, where he would unload sulfuric acid into the plant's receiving points. As part of his duties, Martin connected ECO's hoses between his truck and the receiving points. Because of their heavy weight and size, Martin dragged the hoses across the ground at the unloading area before connecting them from the truck to the receiving points.
Only Dana Transport drivers used the unloading area; the drivers had access to it 24 hours per day, seven days per week. Before he was injured, Martin had unloaded his truck at the unloading area a few dozen times.
ECO employees did not direct Martin in using the hoses to connect his truck to the receiving points. Martin never asked ECO personnel for help or direction in performing the hose-connection steps of the unloading process.
At the unloading area, ECO placed steel plates on the ground to prevent ruts from developing in the asphalt, where drivers like Martin parked their transport trucks. Also on the ground was a metal grate with an opening in it. During his transport runs, Martin noticed either the plates or the grate tended to snag the hoses he used to unload the truck.
On the day he was injured, Martin maneuvered one of the hoses along the ground at the unloading area. The hose snagged either on a steel plate or the opening in the metal grate. Martin pulled at the hose to try to unsnag it. The hose suddenly released and pushed his arm backward, severely injuring his shoulder.
Martin sued ECO based on premises liability. ECO moved for summary judgment on both no-evidence and traditional grounds, contending that it did not control Martin's work activities at the site, among other grounds. The trial court granted summary judgment in ECO's favor.
DISCUSSION
Martin challenges the trial court's summary judgment, contending that he raised material fact issues on each element of his premises-liability claim.
A. Standard of Review
We review the summary judgment in ECO's favor de novo. See Henkel v. Norman, 441 S.W.3d 249, 250 (Tex. 2014) (per curiam). In doing so, we examine the record in a light most favorable to Martin and indulge every reasonable inference against ECO's motion. See id.
A trial court must grant a no-evidence motion for summary judgment if the movant asserts that there is no evidence of one or more specified elements of a claim or defense on which the nonmovant would have the burden of proof at trial and if the nonmovant produces no summary-judgment evidence raising a genuine issue of material fact on each challenged element. See TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67 (Tex. App.—Houston [1st Dist.] 2009, no pet.). The nonmovant produces sufficient summary-judgment evidence on a challenged element only if the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on that element. Simmons v. Briggs Equip. Tr., 221 S.W.3d 109, 113 (Tex. App.—Houston [1st Dist.] 2006, no pet.). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
In a traditional motion for summary judgment, a defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment. Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) (per curiam). If the motion and summary-judgment evidence facially establish entitlement to judgment as a matter of law, then the burden shifts to the nonmovant to raise a genuine issue of material fact via summary-judgment evidence. Phillips, 517 S.W.3d at 359. Summary-judgment evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could differ in their conclusions in light of all the summary-judgment evidence. Id.
B. Premises Liability
Whether a premises owner owes a legal duty to a person who is injured on the premises is a question of law for the court. United Scaffolding, 2017 WL 2839842 at *6. A premises owner owes an invitee, as Martin was in this case, a duty "to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not." Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015), quoted in United Scaffolding, 2017 WL 2839842 at *7.
When the injured invitee is an employee of an independent contractor, we examine whether the claim relates to defects (1) existing on the premises when the employee entered the location; or (2) created by the employee's work activity. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605-06 (Tex. 2002) (citing Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999) (per curiam)). "Only concealed hazards—dangerous in their own right and independent of action by another—that are in existence when the independent contractor enters the premises fall into this first subcategory of premises defects." Coastal Marine Serv. of Tex., 988 S.W.2d at 225. Under the second subcategory, the contractor's work activity creates the hazard—that is, the defect poses no danger until the independent contractor employee activates its dangerousness. See id. (concluding that plaintiffs' claim fell within second subcategory where plaintiff's decedent was injured by "pinch point area" on crane owned by premises owner but operated by independent contractor and crane posed no danger until independent contractor put it into operation).
When the defect relates to the contractor's work activity, then the premises owner generally owes no duty to the independent contractor's employees, unless the premises owner exercises control over the contractor's work and fails to use reasonable care. See Dow Chem., 89 S.W.3d at 606 (citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)). The premises owner's role must be more than a general right to order the work to start or stop, to inspect progress, or to receive reports. Id. (citing Redinger, 689 S.W.2d at 418); see Gonzalez v. Ramirez, 463 S.W.3d 499, 506 (Tex. 2015). A contract that assigns the premises owner a right of control or of actual control over the manner in which the independent contractor's work was performed is evidence of some control. Dow Chem., 89 S.W.3d at 606 (citing Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per curiam)).
C. Summary judgment is warranted because ECO did not control Martin's work.
Martin alleges defects that arose as a result of Martin's work activity at the jobsite. Martin alleges that the steel plates or the grate on the ground at the unloading area caused the hose Martin was working with to snag, which led Martin to pull the hose, which in turn led the hose to push against Martin's arm and cause his shoulder injury. The dangers that Martin describes are not ones that existed on ECO's premises independent of Martin's work activity. See Dow Chem., 89 S.W.3d at 605-06 (citing Coastal Marine Serv. of Tex., 988 S.W.2d at 225). The steel plates and the metal grate were not susceptible of causing the pushing injury to Martin's shoulder independent of his activity of placing the hose on the ground and pulling on it. See Coastal Marine Serv. of Tex., 988 S.W.2d at 225. Martin does not allege, for instance, that he slipped and fell over the plates or the grate. He alleges that the hose caused his injury after he pulled it to try to unsnag it. Martin's use of the hose to unload his truck is indispensable to his injury claim.
Martin admitted that he was aware that the hose could become snagged on the plates or the grate from earlier trips that he made to unload his truck. The danger thus was not a concealed hazard. Martin offered no competing summary-judgment evidence supporting an inference that the defect was an undetectable premises hazard. Because Martin's cause of action alleges a danger stemming from an independent contractor's work activity—moving the hose on the ground—ECO owed no duty absent evidence of some control over that activity. See Coastal Marine Serv. of Tex., 988 S.W.2d at 225.
ECO proffered summary-judgment evidence that ECO did not exercise control over Martin's work. See Phillips, 517 S.W.3d at 359. The undisputed evidence shows that (1) ECO employees did not assist or supervise Martin's unloading process of maneuvering the hoses; (2) Martin's employer had access to the unloading spot at all times; and (3) on the only two occasions an ECO employee spoke to Martin while he was unloading, the conversations did not involve instructing Martin about how to perform his tasks. Because ECO's evidence made this showing, the burden then shifted to Martin to raise evidence to create an issue of material fact as to ECO's exercise of control over his work. See id.
Relying on the "necessary use" exception, Martin argues that ECO owned the hose used to unload the truck, and thus ECO "controlled the only way for Martin to attach the hose and unload the cargo." See Austin v. Kroger Texas L.P., 465 S.W.3d 193, 208 (Tex. 2015) (recognizing "a landowner's duty to make its premises safe when, despite an awareness of the risks, it is necessary that the invitee use the dangerous premises and the landowner should have anticipated that the invitee is unable to take measures to avoid the risk"). He notes that ECO at one earlier point provided a pulley system to maneuver the hose, but no longer did so. But the Supreme Court in Austin made clear that "necessary use" is a "limited" exception, which applies when no other means of performing an activity exists than to use the dangerously defective condition, and it in turn causes injury. See id. at 213; see also Nethery v. Turco, No. 05-16-00680-CV, 2017 WL 2774448, at *3 (Tex. App.—Dallas, June 27, 2017, no pet.) (mem. op.) (holding that necessary use exception did not apply to fall due to ice on driveway because plaintiff could have avoided use of icy sidewalk). In this case, the metal plates and the grate were not necessary to Martin's work, and the snagging of the hose was not unavoidable: Martin had unloaded the truck on earlier occasions without encountering this hazard. Martin has not demonstrated that "ECO should have anticipated that [Martin would be] unable to take measures to avoid the risk" of the hose snagging on a metal plate or grate. See Austin, 465 S.W.3d at 208. To hold otherwise would swallow the general rule that a premises owner has no liability for injuries stemming from an independent contractor's activities over which the owner exercises no control. See Dow Chem., 89 S.W.3d at 605-06 (citing Coastal Marine Serv. of Tex., 988 S.W.2d at 225).
Because no evidence raises a fact issue as to a contractual right of control or actual control over Martin's work at the unloading site, ECO owed Martin no duty as a premises owner. Accordingly, we hold that the trial court properly granted summary judgment. See Dow Chem., 89 S.W.3d at 606.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Chief Justice Radack and Justices Higley and Bland.