Summary
In Steward, the parties did not dispute that the customer had a duty to secure the pipes to the trailer and attach a red flag if they extended too far past the trailer.
Summary of this case from Bujnoch v. Nat'l Oilwell Varco, L.P.Opinion
No. 05-02-00679-CV.
Opinion issued January 14, 2003.
Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 48542.
Reversed and remanded.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
In one issue, Ronald Steward contends the trial court erred in granting summary judgment in favor of David Costello, Individually and d/b/a Kaufman Pipe and Supply (Kaufman), because Kaufman owed Steward a duty of care. Because we conclude Kaufman assumed a duty to Steward, we reverse the summary judgment in favor of Kaufman and remand this case to the trial court.
Factual and Procedural Background
On June 19, 1993, Mark Geneva purchased approximately 850 feet of pipe from Kaufman. Kaufman's manager, Ben Heard, assisted Geneva in loading the pipe onto a flatbed trailer. Geneva secured the pipe to the trailer, using a boom to tighten chains around the front and the back of the load. There was also a nylon strip in the center of the load. Using his arm, Heard measured the pipe extending over the end of the trailer to determine whether it exceeded four feet. Heard then told Geneva he was "legal," and Geneva left Kaufman's premises.
Texas law requires a load that extends more than four feet beyond the end of a vehicle be marked with red flags. Act of April 27, 1971, 62nd Leg., R.S., ch. 83, 1971 Tex. Gen. Laws 722, 748 (amended 1995) (current version at Tex. Transp. Code Ann. § 547.382 (Vernon 1999)).
Shortly after Geneva entered the highway, Steward collided with the rear of the trailer. The top layer of pipes shattered Steward's windshield, inflicting serious injury to Steward. Steward sued both Geneva and Kaufman, contending Kaufman was negligent by failing to ensure the pipe was properly secured and by failing to put a red flag on the pipe that extended from the trailer.
Kaufman filed both a traditional and no-evidence motion for summary judgment on grounds Kaufman did not owe Steward a duty as a matter of law and Steward could produce no evidence that Kaufman owed Steward a duty. The trial court granted summary judgment without specifying its basis for doing so. Steward appealed.
In its brief, Kaufman also argues it is entitled to summary judgment because there is no evidence the breach of any duty by Kaufman caused Steward's injuries. Kaufman did not move for summary judgment on grounds there was no evidence of causation. Because summary judgment may be granted only on grounds specifically set forth in the motion, we do not consider Kaufman's causation arguments. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).
Standard of Review
Because a no-evidence motion for summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence judgment as we apply in reviewing a directed verdict. Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex.App.-Dallas 2000, no pet.). A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact as to the element on which the motion is based. Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 837 (Tex.App.-Dallas 2000, no pet.).
Under traditional summary judgment standards, a party moving for summary judgment must establish its right to summary judgment on the issues presented to the trial court by conclusively proving all elements of the movant's claim or defense as a matter of law. See Tex.R.Civ.P. 166a(b); Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000). We must take as true all evidence favorable to the nonmovant and make all reasonable inferences in the nonmovant's favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
Analysis
A legal duty must exist before a defendant can be liable for negligence. Reeder v. Daniel, 61 S.W.3d 359, 364 (Tex. 2001). Whether a duty exists under a given set of facts is a question of law. Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991).
A person who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other person will not be injured. Id. As to third parties:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965); see Sbrusch, 818 S.W.2d at 396; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983) ("One who voluntarily enters an affirmative course of action affecting the interests of another is regarded as assuming a duty to act and must do so with reasonable care."); Seay v. Travelers Indem. Co., 730 S.W.2d 774, 776 (Tex.App.-Dallas 1987, no writ) (basis of liability under section 324A accrues when person undertakes to perform services for another which are attended by grave risks and which constitute a duty owed by the other to a third person).
The parties do not dispute Geneva had a duty to secure the pipe to the trailer and to place a red flag on the pipe if the pipe extended more than four feet past the trailer. The parties also do not dispute these actions are intended to protect third parties from injury from the pipe. The issue is whether Kaufman assumed a similar duty.
The relevant facts are not in dispute. Heard's job duties included loading pipe purchased from Kaufman into the customer's vehicle. Heard decided how to load the pipe and, if the pipe extended past the vehicle more the four feet, Heard would cut the pipe. Heard also testified no customer left Kaufman unless the pipe was tied down. Heard knew it was necessary to secure the pipe in order to prevent injury to third parties.
Heard helped Geneva load the pipe and was present while the front of the pipe was secured. Heard then went into the office to prepare the sales ticket while Geneva finished securing the pipe. Heard did not inspect the pipe to ensure it was properly secured, but did place his forearm under the pipe extending from the back of the trailer and tell Geneva he was "legal."
We conclude as a matter of law that Kaufman assumed a duty to third parties to ensure the pipe purchased by Geneva from Kaufman was properly loaded, secured, and flagged. See CH Nationwide, Inc. v. Thompson, 810 S.W.2d 259, 267 (Tex.App.-Houston [1st Dist.] 1991), ("Ecotech could foresee that its conduct in supervising the loading of the pipe could create a risk of harm to another and that the risk of harm could be avoided by exercising ordinary care in its conduct."), reversed on other grounds, 903 S.W.2d 315 (Tex. 1994); Seay, 730 S.W.2d at 778. Accordingly, the trial court erred in granting summary judgment for Kaufman on grounds Kaufman owed no duty to Steward.
We sustain Steward's point of error, reverse the summary judgment in favor of Kaufman, and remand this case to the trial court for further proceedings.