Opinion
No. 05-09-01418-CV
Opinion Filed April 20, 2011.
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-08720-F.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
This is an appeal from summary judgment rendered against appellants Alberto Echeverria Mendez and Noehmi Hernandez Mendez, individually and as next friend of C.E. and S.E., minors, on their negligence claims against Bill Joplin's Compressor Services, Inc. (Joplin). The Mendezes challenge Joplin's no-evidence summary-judgment grounds that focused on evidence of a particular "dangerous condition" of a used ladder that collapsed, severely injuring Alberto. They also contend the trial court erred in granting Joplin's traditional summary-judgment motion because Joplin failed to prove its affirmative defense of exclusive remedy under the Texas Workers' Compensation Act. We reverse the trial court's judgment and remand for further proceedings.
BACKGROUND
Alberto worked as a laborer for his cousin, Jose Betancourt, installing heating and air conditioning systems for Joplin. Betancourt previously was Joplin's employee, but left to perform contract work on houses assigned to him by Joplin. Just a few months after he started working for Betancourt, Alberto was severely injured when an aluminum extension ladder he was climbing "telescoped" downwards. At the time of the incident, Betancourt and his crew were performing contract work for Joplin on a large two-story home.
Betancourt had purchased the ladder from Joplin. The ladder was approximately thirteen years old at the time of the accident. Betancourt was unable to state clearly when he purchased the ladder and estimated it occurred between two months and a year before the accident.
The Mendezes sued Joplin, Joplin-related entities, and Louisville Ladder, Inc., the manufacturer of the ladder, for negligence. Following a no-evidence summary judgment in favor of Louisville Ladder and some party non-suits, the remaining parties were the Mendezes, Joplin, and Betancourt, who was designated by Joplin as a responsible third party.
After discovery was developed, Joplin filed a combined no-evidence and traditional summary-judgment motion. As its no-evidence grounds, Joplin relied on section 388 of the Restatement (Second) of Torts and claimed Alberto had no evidence (1) a "dangerous condition" inherent in the ladder caused Alberto's injuries, (2) the particular alleged "dangerous condition" existed on the date Joplin sold the ladder, and (3) Joplin anticipated or should have anticipated Alberto would not realize the "dangerous condition." Joplin asserted as the basis for a traditional summary judgment that "[t]o the extent that Plaintiffs seek to recover for alleged negligent supervision," the claims are subject to the exclusive remedy bar under the workers' compensation scheme because Joplin was a subscriber at the time of the incident. The Mendezes responded and, in addition to presenting evidence addressing the no-evidence points regarding a section 388 "dangerous condition," objected to Joplin's no-evidence motion to the extent other elements of the Mendezes' claims were being challenged. They also argued they never alleged Alberto was an employee of Joplin or that he sought workers' compensation benefits.
The trial court granted judgment in favor of Joplin without specifying the basis. The Mendezes appealed, raising two issues. First, they argue they did not have to prove a particular part of the ladder failed or whether that part was defective at the time of sale, claiming they presented sufficient evidence under any negligence theory to defeat Joplin's no-evidence motion. They also contend the trial court erred in granting summary judgment on Joplin's exclusive-remedy affirmative defense because Joplin failed to prove it was Alberto's statutory employer for purposes of the Texas Workers' Compensation Act.
DISCUSSION Standard of Review
We review summary judgments under well-established standards. See Tex. R. Civ. P. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985) (traditional motions under rule 166a(c)); Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.-Dallas 2000, no pet.) (no-evidence motions under rule 166a(i)). A defendant who moves for summary judgment pursuant to rule 166a(c) must show the plaintiff has no cause of action. A defendant may meet this burden by disproving at least one essential element of each theory of recovery or by conclusively proving all elements of an affirmative defense. See Gen. Mills Rests., 12 S.W.3d at 832. A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. AN Collision Ctr. of Addison, Inc. v. Town of Addison, 310 S.W.3d 191, 193 (Tex. App.-Dallas 2010, no pet.). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the non-movant will be taken as true. Id. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied).
We review a no-evidence summary-judgment motion under the same legal-sufficiency standard used to review a directed verdict. See Tex. R. Civ. P. 166a(i); Gen. Mills Rests., 12 S.W.3d at 832-33. We must determine whether the non-movant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. See Gen. Mills, 12 S.W.3d at 833. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). As with traditional motions, we consider the evidence in the light most favorable to the non-movant. Id.
Analysis Negligence
Joplin's no-evidence points are premised solely on the elements of Restatement (Second) of Torts section 388 and, specifically, the requirement of a "dangerous condition." Joplin argues the condition must be an identifiable condition that actually caused the accident or Alberto's injury. The Mendezes contest having to specify the "exact" defect of the ladder that caused or contributed to the accident or Alberto's injury. The Mendezes also contest Joplin's characterization of their pleadings as alleging liability only under section 388 rather than under a general negligence theory or other restatement provisions. We do not reach the question of whether the Mendezes' pleadings are broader than suggested by Joplin, because a review of the evidence related to the condition of the ladder at the time of sale is dispositive of the first issue. We therefore address that evidence first.
Under any negligence theory, however, the condition of the ladder would be an element of the claim.
The summary-judgment proof filed by the Mendezes included testimony of Betancourt; Rudy Diaz, Joplin's purchasing manager and former safety manager; Brent Fowler, Joplin's service manager for new construction; Michael LaTour, the president of Joplin; and John Morse, the Mendezes' expert.
Betancourt testified he had a sixth-grade education and that he went to work for Joplin in September of 1995. He transitioned after a few years from being an employee to contract work where he was paid for each house assigned to him by Joplin. He received no safety training at Joplin.
Betancourt testified that once he began doing contract work, he was always asking Diaz to borrow an extension ladder. He sought to purchase one from Diaz because of the price. Diaz showed him five or six ladders, and Betancourt chose the one he thought was in the best condition. He paid Diaz $60 in cash. He was not sure of the date he bought the ladder, but estimated it was somewhere between two to three months to a year before Alberto's accident. After purchasing the ladder, he used it approximately once a week or once a month.
Diaz testified he was the purchasing manager for Joplin. He also had held other management positions, including manager of parts, safety, maintenance facility, inventory and warehouse employees. He was in charge of removing ladders from retired vehicles. He stated that ladders were issued to a particular Joplin service vehicle and identified by the vehicle number stenciled on the ladder. He testified the notation "BJCS 25" on the ladder Betancourt claimed to have purchased would refer to service van number 25 that had been retired by Joplin. Diaz was notified when an employee or manager believed a ladder needed to be retired, and he made decisions about whether to retire a ladder. He explained that, in determining whether a ladder needed to be retired, he would look at things like cracks, broken feet, a cracked aluminum step, and wear and tear. He denied having sold the ladder to Betancourt.
Fowler testified he had been with Joplin for over twenty-two years. According to him, service vans generally were retired after six to eight years; the ladders were removed from the vans. If the ladders were in bad shape when they came off vehicles, they were destroyed or taken to the deer lease. If the ladders were still usable, they were kept in the yard. Fowler identified Diaz as the person who would determine whether a ladder was reusable or should be put in the pile to be destroyed or taken to the deer lease. He both agreed and disagreed that the ladder purchased by Betancourt should have been retired at the time the service van was retired. He testified that retired ladders were turned over to Diaz. He also said Diaz never reported the sale to Betancourt or turned in a receipt.
LaTour testified as the president of Joplin. In 2004, he was a vice president to whom Diaz reported. LaTour testified that Diaz was the safety manager in 2004 and that there "[a]bsolutely" would be no reason to sell a used ladder if it still had a serviceable life. He repeated that if a ladder was still functional and operated well, it should not be sold.
Morse, as the Mendezes' expert witness, testified by affidavit and by deposition, and the evidence included his expert report. Morse's background included extensive experience in the investigation of accidents involving extension ladders, and he had published three papers on extension-ladder safety. He testified by affidavit that he personally inspected the ladder on multiple occasions and, based on his observations and conclusions to a reasonable degree of engineering probability, the ladder had multiple indicators that it was "worn out and needed to have been retired." The indicators included the "looseness of the flippers or tongues on the flylocks." He stated the "flippers move[d] back and forth to a large extent, in a sideways plane." He added "there [were] wear marks on the flylocks themselves" and the "marks are made by the flippers gouging into the flylocks as the ladder [was] retracted." He testified further by affidavit that the marks were not due to age, but were "due to wear and tear and they track with the number of uses of the ladder." He also said it was "more likely than not that the wear marks on the flylocks and the loose condition of the flippers existed at the time of sale of the ladder" to Betancourt.
Morse also opined on the question of Joplin's knowledge of the ladder's condition. He testified through his affidavit that the wear and condition of the ladder would be evident to an individual trained in inspecting ladders and responsible for their inspection, such as Diaz.
He said the conditions noted would have alerted Diaz to the need to retire the ladder. Morse also stated the conditions likely would not be evident from a casual inspection of the ladder. In his opinion, the "likely scenario" was that "the right flylock tiplocked on the bushing that had strayed into its path" and the tiplock released when Alberto was on the ladder, causing the ladder to telescope. Morse explained when a ladder is designed and manufactured, the bushing would be in an assigned spot, out of the way of the flylock, and held in place by a rivet. But things such as "[l]adder use, transporting and handling over time" were factors "in the bushing working loose from the rivet and being displaced."
From this record, we conclude the Mendezes produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. Joplin's first no-evidence point was that there was no evidence of a dangerous condition inherent in the ladder that caused Alberto's injuries. On appeal, Joplin focuses on Morse's report that the "likely scenario" is that the flylock tiplocked on the bushing that had strayed from its path and that the tiplock released when Alberto was on the ladder, causing the ladder to telescope. Joplin then argues that there was no evidence that worn flylocks or flippers caused the accident. Yet Morse testified in his deposition in response to the question of whether the condition of the fly had anything to do with the cause or causes of the accident, that "the short answer is, yes, the condition of the fly does have something to do with the accident." He added, it was "very compelling evidence that the ladder [was] worn out and needed to be thrown out." He also described the flylocks as part of the fly section.
Without conceding the ladder was in fact "worn out," Joplin argues the Mendezes are asking this Court to hold that a seller can be liable for failing to warn of a "potentially dangerous condition" where there is no evidence the "dangerous condition" existed at the time of the sale. By analogy, Joplin argues it "would be tantamount to making a used car seller liable for break [sic] failure that developed and manifested after sale because the seller knew of but failed to disclose an unrelated transmission problem."
Section 388 makes the supplier of a chattel liable for "physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied," if the supplier: (a)knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b)has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c)fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement (Second) of Torts § 388 (1965). Section 388 does not require proof of a dangerous condition inherent in the ladder. Rather, the "use" of the ladder, which Joplin had reason to know is likely to be dangerous for the use which it is supplied, has to cause the physical harm.
The Mendezes produced summary-judgment evidence of specific problems with the locking mechanism or fly section of the ladder. That evidence included Morse's testimony that a dangerous condition of the ladder involving the fly section of the ladder, including wear marks on the flylocks and the loose condition of the flippers, caused the accident and Alberto's injuries. That evidence also included Morse's testimony that the likely cause of Alberto's injuries was the flylock tiplocking on a displaced bushing, with the tiplock releasing and causing the ladder to telescope when Alberto was climbing the ladder. Viewing this evidence in the light most favorable to the Mendezes, there is more than a scintilla of evidence that Alberto's injuries were caused by use of the ladder in the manner for which it was supplied by Joplin. Thus, we conclude the Mendezes produced enough evidence to overcome Joplin's section 388 no-evidence point that a dangerous condition caused Alberto's injuries.
Joplin's second no-evidence point was that there was no evidence the particular alleged dangerous condition existed on the date Joplin sold the ladder. Morse testified that it was "more likely than not that the wear marks on the flylocks and the loose condition of the flippers existed at the time of sale of the ladder" to Betancourt. This testimony, viewed in the light most favorable to the Mendezes and in conjunction with Morse's prior testimony related to the likely cause of the accident, is more than a scintilla of evidence that the dangerous condition of the ladder existed at the time of the sale.
Finally, Joplin's third no-evidence point was that there was no evidence Joplin anticipated or should have anticipated Alberto would not realize the dangerous condition. Again, Morse's testimony indicates that the conditions of the ladder he described would be evident to an individual trained in inspecting ladders and responsible for their inspection, such as Diaz, and would alert him to the need to retire the ladder. He also stated the conditions likely would not be evident in a casual inspection of the ladder. The evidence also included testimony that Diaz was in charge of safety, that he had conducted no safety training, that Betancourt often borrowed Joplin's extension ladders from Diaz for use on Joplin jobs prior to the purchase of the used ladder, and that Diaz should not have sold a ladder that was in usable condition. This evidence, viewed in the light most favorable to the Mendezes, is more than a scintilla of evidence Joplin should have anticipated Alberto would not realize the dangerous condition described by Morse.
Because the Mendezes met the threshold of evidence necessary to survive Joplin's no-evidence points, we sustain their first issue.
Exclusive Workers' Compensation Remedy
In its traditional summary-judgment point, Joplin invoked application of the Texas Workers' Compensation Act as the exclusive remedy of an employee covered by workers' compensation insurance. See Tex. Lab. Code Ann. § 408.001(a) (West 2006). Yet Joplin does not admit or offer any proof that it was Alberto's statutory employer. Rather, it relies solely on the Mendezes' allegation that Joplin "breached duties owed to Alberto" and "directed him to work in an unsafe manner with an unsafe ladder." In its summary-judgment motion, Joplin argues, "[t]o the extent that Plaintiffs seek to recover for alleged negligent supervision," the Mendezes' claims are barred by the Texas Workers' Compensation Act.
The workers' compensation exclusive remedy provision is an affirmative defense, for which Joplin bore the burden of pleading and proving facts supporting the defense. Wesby v. Act Pipe Supply, Inc., 199 S.W.3d 614, 617 (Tex. App.-Dallas 2006, no pet.). Part of that burden required Joplin to prove Alberto was Joplin's statutory employee. Id. That fact is not stipulated or admitted by any party. The only evidence Joplin presented in support of its affirmative defense was the affidavit of Mike LaTour, its president. LaTour verified Joplin had a workers' compensation insurance policy in effect during the time of Alberto's injury. The existence of Joplin's subscriber's policy does not address whether Alberto was its employee for purposes of workers' compensation laws. Accordingly, Joplin failed to meet its burden and summary judgment on that part of its motion is error. We sustain the Mendezes' second issue.
CONCLUSION
Having sustained the Mendezes' first and second issues, we reverse the trial court's summary judgment in favor of Joplin and remand the case to the trial court for further proceedings.