Diana Godines, Individually and on Behalf of Amando Godines, Sr., Michael Godines Amando Godines, Jr. And Deanna Quitugua v. Precision Drilling Company, L.P. ( 2018 )

Opinion filed May 31, 2018
In The
Eleventh Court of Appeals
__________
No. 11-16-00110-CV
__________
DIANA GODINES, INDIVIDUALLY AND ON BEHALF OF
AMANDO GODINES, SR., DECEASED; MICHAEL GODINES;
AMANDO GODINES, JR.; AND DEANNA QUITUGUA,
Appellants
V.
PRECISION DRILLING COMPANY, L.P., Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CV-52178
MEMORANDUM OPINION
Appellants, the surviving spouse and children of Amando Godines, Sr.,1 sued
Precision Drilling Company, L.P., among others who are not parties to this appeal,
for wrongful death under negligence and gross negligence theories. Precision
1
Godines died while working for Precision Drilling Company, L.P. as a motorman on the rig crew.
answered the suit and moved for summary judgment on traditional and no-evidence
grounds. Precision argued that (1) proof of its status as a workers’ compensation
subscriber conclusively barred the negligence claim and (2) Appellants produced no
evidence of gross negligence—no evidence of Precision’s awareness of the risk, of
a vice principal’s gross negligence, or of proximate cause. The trial court granted
summary judgment for Precision, and on appeal, Appellants raise four issues. We
affirm.
I. Summary Judgment Evidence
Precision worked with a trucking company, Briley Trucking, Ltd., to move an
oil and gas rig from one well site to another. At the original well site, Briley sought
approval from Precision to transport the derrick using the “two-truck method,” in
which the derrick was only partially collapsed (or “scoped in”) and moved using two
trucks. Because the derrick dolly needed repairs, the two-truck method provided
Precision a way to move the rig more quickly. Precision supervisors, Benjamin
Franco and Salvador Ulloa, raised concerns with the Briley “truck pusher” that
moving the derrick in this manner was dangerous. The Briley truck pusher and
Precision supervisors called Precision’s drilling superintendents, Roger Dean Moran
and Roel Soza, to discuss the move. After the Briley truck pusher told Moran that
he could perform the move safely, the superintendents approved the two-truck
method.
To prepare the rig move, two tractor-trailers trucks were backed up to one
another. Briley and Precision partially collapsed sections of the derrick and secured
them using pins. The derrick rested horizontally on both trailers, with one truck
facing forward and the other truck facing backwards. Briley drove the rig over ten
miles on a highway and rough lease roads to the new well site.
When the trucks arrived at the new well site, the suspension equipment was
not ready for the derrick. The Precision crew was using the crane for tasks involved
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with building the substructure of the rig. Precision and Briley supervisors testified
that they planned to finish the substructure, have a “Job Safety Analysis” (JSA)
meeting, and then suspend the derrick with either the crane or the pole trucks. The
parties dispute whether a JSA meeting took place before the crew “scoped in” the
derrick at the original well site, but the parties agree that no JSA meeting occurred
to discuss “scoping out” the derrick at the new well site. The derrick remained on
the tractor-trailers for almost two hours while the Precision crew worked on the
substructure.
At some point, the Briley truck pusher at the new well site had a radio
conversation about the status of the derrick, and he walked toward the derrick to
check the “diaper pins,” which held the larger pins in place under the derrick. The
truck pusher testified that he picked up a sledgehammer and was only going to
remove the diaper pins, as opposed to the larger pins, and that Godines insisted on
removing the diaper pins because it was his job. The truck pusher also testified that
Godines took the sledgehammer, but another Precision crew member testified that
the truck pusher gave it to him. Other testimony also suggested that the Briley truck
pusher instructed Godines to remove the pins. In any event, all Precision supervisors
testified that the derrick was not ready to scope out and that they did not instruct
Godines to check the pins.
Godines was fatally injured after he positioned himself underneath the derrick
and removed one of the load-bearing pins. After Godines removed the pin, the
remaining pin sheared off and the derrick collapsed on top of him.
II. Issues Presented
On appeal, Appellants’ first issue is a global issue, which asks whether the
trial court erred when it granted summary judgment. In the second issue, Appellants
assert that the trial court erred when it considered late-filed evidence. Third,
Appellants argue that the evidence precludes summary judgment on no-evidence
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grounds. Finally, Appellants argue that Precision failed to meet its burden on
traditional grounds.
III. Analysis
We first consider Appellants’ second and fourth issues concerning the late-
filed summary judgment evidence and its effect on the negligence claim. Then we
consider the first and third issues related to the no-evidence summary judgment on
the gross negligence claim.
A. Issues Two and Four: The trial court did not abuse its
discretion when it granted leave to file the workers’
compensation policy late, and the exclusive remedy
provision of the Texas Workers’ Compensation Act bars
Appellants’ negligence claim.
In their second issue, Appellants argue that the trial court improperly
considered Precision’s late-filed summary judgment evidence. Because of that, in
their fourth issue, Appellants assert that Precision failed to conclusively establish
that it was covered by workers’ compensation insurance and that the exclusive
remedies provision barred their negligence claim.
1. Second Issue--Standard of Review
“Summary judgment evidence may be filed late, but only with leave of court.”
Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (citing TEX. R.
CIV. P. 166a(c)). The standard of review for a trial court’s decision to admit or
exclude a late summary judgment response is abuse of discretion. Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002). Admission of late
summary judgment filings are appropriate “upon a showing of (1) good cause, and
(2) no undue prejudice.” Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011);
Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005); Carpenter, 98 S.W.3d at 686–
88; Burleson v. Sharp Image Energy, Inc., No. 11-06-00069-CV, 2007 WL 3298973,
at *4 (Tex. App.—Eastland Nov. 8, 2007, pet. denied) (mem. op.). “It is appropriate
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for the trial court to grant leave for the late filing of summary judgment proof when
the summary judgment movant is attempting to counter arguments presented in the
nonmovant’s response.” Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.—San
Antonio 2010, pet. denied) (citing Lawler v. Dallas Statler-Hilton Joint Venture, 793
S.W.2d 27, 30 (Tex. App.—Dallas 1990, writ denied)).
2. The trial court did not abuse its discretion when it
considered late-filed evidence.
Precision moved for summary judgment and attached the affidavit of a risk
manager to prove that it was covered by a workers’ compensation policy at the time
of Godines’s death. Appellants filed a response and argued that Precision failed to
meet its burden because it did not attach the workers’ compensation policy to the
summary judgment motion. Then, on the day before the summary judgment hearing,
Precision filed a motion for leave to supplement its evidence and attached the policy.
The policy listed Precision as covered on a rider to the information page.
Appellants objected to the late filing, arguing that the length of the document
and the time of filing prevented them from identifying potential problems with the
coverage. Precision responded that filing the actual policy was unnecessary but that
it sought to supplement the evidence as a precaution. Precision argued that
Appellants did not suffer prejudice because Precision’s attorneys notified them about
the policy two days after the accident and they had attempted to file a beneficiary
claim under the policy. Precision produced e-mail correspondence between the
attorneys for Precision and Appellants and also produced the beneficiary-claim form
that Diana Godines had filed. The trial court sustained Appellants’ objection at the
hearing but then later issued a written order that granted Precision leave to
supplement the record. On the same day, the trial court granted summary judgment
in Precision’s favor.
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The trial court acted within its discretion to grant Precision leave to file late
evidence. The trial court could have reasoned that Precision had good cause to file
the workers’ compensation policy late because it was a response to Appellants’
argument that the initial affidavit from the risk manager was insufficient. The trial
court could have also inferred from the e-mail correspondence and beneficiary claim
that Appellants would not have suffered surprise from the late filing. Therefore, we
cannot say that the trial court abused its discretion when it granted Precision leave
to file late summary judgment evidence.
Appellants also argue that, because the trial court sustained the objection to
the late-filed evidence at the summary judgment hearing, the trial court should not
have considered the workers’ compensation policy. But “[a] trial court has the
inherent authority to change or modify any interlocutory order or judgment until its
plenary power expires.” Loy v. Harter, 128 S.W.3d 397, 409 (Tex. App.—
Texarkana 2004, pet. denied); see Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84
(Tex. 1993); see also TEX. R. CIV. P. 329b(d). Therefore, even after it initially
sustained Appellants’ objection, the trial court had the authority to change its mind
and grant the motion to admit late-filed evidence.
3. Workers’ compensation is the exclusive remedy,
and Appellants’ negligence claim is barred.
“Recovery of workers’ compensation benefits is the exclusive remedy of an
employee covered by workers’ compensation insurance.” City of Bellaire v.
Johnson, 400 S.W.3d 922, 922 (Tex. 2013) (quoting TEX. LAB. CODE ANN.
§ 408.001(a) (West 2015)). To prove this affirmative defense on summary
judgment, the movant must conclusively establish that it maintained workers’
compensation insurance. Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 474–75
(Tex. 2005); Morales v. Martin Res., Inc., 183 S.W.3d 469, 471 (Tex. App.—
Eastland 2005, no pet.).
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The “information page of a workers’ compensation policy” and an affidavit
by a risk manager who maintains that the coverage was effective at the time of the
incident is sufficient to prove that an employer maintained workers’ compensation
insurance. E.g., Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App.—
Houston [1st Dist.] 1998, pet. denied) (holding that the affidavit of a “claims
manager” coupled with the information page of the policy established coverage).
Here, Precision produced an affidavit by its risk manager stating that it maintained
workers’ compensation insurance at the time of Godines’s death. Then Precision
supplemented its evidence with the full policy, which included an information page
listing Precision as a covered entity. This evidence conclusively established that
Precision maintained workers’ compensation insurance. The trial court was within
its discretion to consider the late-filed policy, which conclusively proved that the
exclusive remedy provision of the Texas Workers’ Compensation Act applies. We
overrule Appellants’ second and fourth issues.
B. Issues One and Three: The trial court properly granted
summary judgment on Appellants’ gross negligence claim
because Appellants failed to adduce evidence that raised
a genuine issue of material fact that Precision was
consciously indifferent to Godines’s safety.
We now turn to the no-evidence summary judgment on Appellants’ gross
negligence claim. The standard of review for summary judgment is the same for
gross negligence as for ordinary negligence. See Huckabee v. Time Warner Entm’t
Co., 19 S.W.3d 413, 423 (Tex. 2000); Hardy v. Bennefield, 368 S.W.3d 643, 648
(Tex. App.—Tyler 2012, no pet.). Because the trial court did not specify the basis
of its ruling, we will affirm the judgment of the trial court if any of the movant’s
theories are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Barker v. Roelke, 105
S.W.3d 75, 82 (Tex. App.—Eastland 2003, pet. denied).
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1. Standard of Review
We review summary judgment motions under a well-settled, multifaceted
standard of review. Kemp v. Jensen, 329 S.W.3d 866, 868 (Tex. App.—Eastland
2010, pet. denied). Summary judgments are reviewed de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). The party that files a no-evidence
motion for summary judgment alleges that there is no evidence of one or more
essential elements of a claim or defense on which the adverse party would have the
burden of proof at trial. See TEX. R. CIV. P. 166a(i). A no-evidence motion for
summary judgment is essentially a motion for a pretrial directed verdict. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006) (citing Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Once such a motion is
filed, the burden shifts to the nonmoving party to present evidence raising an issue
of material fact as to the elements specified in the motion. Id.
2. Appellants failed to adduce evidence that raised a
genuine issue of material fact that an act or
omission by a vice principal of Precision
proximately caused Godines’s death.
Precision moved for summary judgment on no-evidence grounds because it
asserted that there was no evidence to establish an act or omission by a Precision
vice principal that proximately caused Godines’s death. In response, Appellants
produced four expert affidavits, two affidavits by Franco, and various deposition
testimony.
Several witnesses provided evidence in either affidavits or depositions.
Dr. Jahan Rasty, a mechanical engineering expert, concluded that the pin on the
opposite side of the derrick fractured after Godines removed the first pin, which
caused the collapse. John P. Hughett, an engineering and oilfield operations expert,
stated that the rig manufacturer published a manual for moving the rig and that the
two-truck method is against the recommended practice. Hughett concluded that
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Precision ignored these dangers, that Precision “failed to see that the pins were
installed in the correct direction,” and that Precision “failed to properly train its rig
crew on mast rig down and rig up operations.” Matthew Meyerhoff, a motor carrier
consultant, outlined reasons that he believed that the two-truck method violated its
permit and transportation regulations. He opined that Precision’s decision to
transport the rig using the two-truck method was “made based upon the quickest way
to get the oil rig up and running.” He also stated that the decision prioritized “profits
over safety and created an extreme degree of risk of harm to all personnel involved
in the transportation of the derrick.” Appellants’ expert, Gary S. Nelson, described
the elements of a workplace safety program and the JSA process. Specifically, if
Precision had used a derrick dolly, “the rig would have to have been triple scoped to
accommodate its use, and since a derrick dolly cannot be used to scope out a rig,
then the rig would have automatically been supported by pole/gin trucks before
scope out.” However, none of these individuals were vice principals of Precision,
and none testified that a Precision supervisor had proceeded to “unscope” the rig or
had instructed Godines to do so.
Precision’s superintendent, Moran, who approved the two-truck method,
confirmed that JSA meetings are required before scoping in or scoping out a rig and
that a failure to perform a JSA “likely will lead to significant harm and injury on a
work site.” Moran testified that the rig manager on site is responsible for ensuring
that a JSA meeting occurs. Precision does not train its rig managers in a single safe
way to move a rig; instead, “they have a rig move plan . . . that they get with the
trucking company” who moves the rig. The rig managers and the trucking company
jointly create guidelines for a rig move at the job site. The rig manager is the
Precision supervisor who is responsible for “[a]ll safety issues,” and Ulloa was the
rig manager for Rig 305.
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Precision still needed to move the derrick from where it was parked to the
location where “it was going to be pinned into position and raised.” Setting up an
oil and gas rig is a process with several steps, and Franco confirmed that he
“follow[ed] the typical steps that you follow in setting up the pieces of the rig
necessary to put it in position.” When asked about whether the rig manager would
take instructions from a third party, Moran testified that the rig manager might have
taken direction from a truck pusher in some circumstances. When asked about
whether Precision’s protocol would have allowed a third party to instruct a Precision
employee, Moran said, “[T]hey do job tasks if everything is done safely. We’ve --
we’ve taken instruction from [a] third party.” Regarding Godines, Moran testified
that “on a critical task you have to . . . get the rig manager involved. And he wasn’t
aware of the job task that was being done.”
Precision created a JSA for scoping out Rig 305 a couple of years before
Godines’s death. Although Ulloa knew about the written JSA and the “risk
potentials” that it listed, he did not use it. Ulloa maintained that he did not hold a
verbal JSA at the new well site because it was not yet time to scope out the derrick.
Moran also testified that Precision was not ready to scope out the derrick at the time
of the accident, and he consistently maintained that Precision supervisors did not
know that anyone was scoping out the derrick.
Franco, who was a driller for Precision, stated that Precision “knew that
having people work around the derrick without it being supported with pole trucks,
stands or a crane was extremely dangerous.” According to him, “[t]here was no
reason for anyone to be near the rig” while the crane or pole trucks were not in place.
In his deposition, Franco stated that Precision was not ready to scope out the rig at
the time of Godines’s death. When asked whether the derrick “pose[d] any danger
to anybody while it was just parked” at the new well site, Franco said, “No, sir.”
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When asked how many crew members it would take to safely scope out the
derrick, Franco replied, “As many as possible.” He confirmed that Godines could
not have scoped out the rig alone. Franco characterized Godines as an experienced
worker who had worked in the oilfield most of his life, and Franco said that he did
not instruct Godines to check the pins. Franco blamed himself for the accident
because he supervised Godines and he “wasn’t there to stop” him. Franco testified
that he and the other crew members did not see Godines strike the pin under the
derrick because they were doing other tasks.
Eduardo Quezado, a Precision floor-hand employee, saw Godines underneath
the derrick striking the pin, but he did not realize Godines was performing a
dangerous task. Quezado testified that the radios were only used by the Briley truck
pushers, not Precision.
In sum, Precision argues that none of this evidence shows that a vice principal
of Precision proximately caused Godines’s death or that any negligent act amounted
to gross negligence. Even if we assume, without deciding, that Moran, Ulloa,
Franco, and Quezado were all vice principals of Precision, we conclude that there
was no evidence that raised a genuine issue of material fact that any Precision
supervisor’s acts or omissions proximately caused the accident and Godines’s death.
Appellants suggest that Precision knew that using the two-truck method was
likely to damage the derrick mast during transportation and risk collapse.
Appellants’ experts’ affidavits support the assertion that moving a rig in this way
can cause damage to the derrick, but there is no evidence that any such damage
actually caused the collapse. A plaintiff must prove all the elements of negligence
as a prerequisite to a gross negligence claim. Gonzalez v. VATR Constr. LLC, 418
S.W.3d 777, 789 (Tex. App.—Dallas 2013, no pet.); Barnes v. United Parcel Serv.,
Inc., 395 S.W.3d 165, 176 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex.
11
2008)). A necessary element of negligence is proximate cause, which requires proof
of “cause in fact.” IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004). “Cause in fact” means that the act or omission was a
substantial factor in bringing about the injury, and without it harm would not have
occurred. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992).
Dr. Rasty indicated in his affidavit that the two-truck method was a factor
contributing to stresses on the failed travel pin, but he also stated that further analysis
would be needed “to quantify the contribution of transportation-induced stresses” on
the pins. Hughett’s affidavit stated that the two-truck method could cause damage
to the derrick mast, and Meyerhoff averred that the two-truck method was dangerous
because it violated motor carrier regulations.
We agree with Precision that these affidavits do not raise a genuine issue of
material fact on a causal connection between the risks of transportation and
Godines’s death. The parties do not dispute that the derrick collapsed after Godines
removed one of the travel pins. None of the experts’ statements indicate that a single
pin—even one in brand new condition—could have supported the weight of the
derrick. Appellants failed to adduce evidence that raised a genuine issue of material
fact that the transportation method damaged the derrick’s pins and substantially
contributed to Godines’s death.
3. Appellants failed to adduce evidence that raised a
genuine issue of material fact that Precision was
consciously indifferent to the extreme risk that
created the likelihood of serious injury to Godines.
Gross negligence has two elements: an objective and a subjective element. U-
Haul Int’l Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); Matbon, Inc. v. Gries,
288 S.W.3d 471, 488 (Tex. App.—Eastland 2009, no pet.); see TEX. CIV. PRAC. &
REM. CODE ANN. § 41.001(11) (West Supp. 2017). For the objective element, the
evidence must show that, from a vice principal’s perspective, an “act or omission
12
involved an extreme degree of risk” that created “the likelihood of the plaintiff’s
serious injury.” U-Haul, 380 S.W.3d at 137. The subjective element requires that
the defendant’s vice principal was aware of the risk but “demonstrated indifference
to the consequences of its acts.” Id. “Circumstantial evidence is sufficient to prove
either element.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.
2001). “Some evidence of simple negligence is not evidence of gross negligence.
Conversely, some evidence of care does not defeat a gross-negligence finding.” Id.
(citations omitted). But “a party cannot be liable for gross negligence when it
actually and subjectively believes that circumstances pose no risk to the injured
party, even if they are wrong.” U-Haul, 380 S.W.3d at 141.
In Andrade, the plaintiff failed to produce any evidence that the defendant’s
managers were consciously indifferent to the risk of electrocution by an energized
crane. Louisiana-Pac. Corp. v. Andrade, 19 S.W.3d 245, 248 (Tex. 1999). The
defendant knew that its managers “had the responsibility to de-energize the rails and
lock out the power source” of a crane, and the managers presented conflicting
testimony about “when the power was actually turned off.” Id. at 247. However,
the conflicting testimony about when the managers thought they locked out the crane
did not create an inference that the defendant’s managers “knew the crane was
energized that day and nevertheless did not care whether” the employees “would
encounter that risk.” Id. at 248. Neither did “the failure to maintain a written lock-
out policy” show that the managers were consciously indifferent to the risks posed
by the crane. Id. The managers were not consciously indifferent because “they
actually, subjectively believed that they had locked out the crane or witnessed
someone else do so before” the injured employee began to work. Id.; see Diamond
Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 172 (Tex. 2005) (holding there was no
evidence the defendant was conscious that a “compressor was unsafe as designed
13
and operated,” although the defendant’s efforts to protect against the dangers of
working in an oil refinery were “imperfect” and “may have been negligent”).
In contrast, the plaintiffs in Burk Royalty produced circumstantial evidence
that the district superintendent of an oil well site was consciously indifferent to the
risk of a fire on a rig. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922–23 (Tex.
1981). An oil rig crew member was burned to death when gas ignited while he was
“pulling wet tubing from an oil well.” Id. at 914. Before the crew began this job,
the rig operator asked the superintendent whether they should use “a process called
‘shooting the tube.’” Id. The superintendent told the operator “not to use that
method, but rather to pull the tubing until they reached fluid,” which he knew was
flammable. Id. at 914, 923. The crew smoked around the oil well and kept a fire
burning about thirty feet away. Id. at 923. But the superintendent “did not check
for safety conditions or safety violations, and he did not give any safety instructions”
after he told the operator to pull the wet tubing. Id. at 923. A corporate officer
testified that there were no established safety procedures for pulling wet tubes, and
the rig operator “said he didn’t know if there were any fire extinguishers on the rig
or not.” Id. The rig operator testified that “no monthly safety meetings were ever
held”; thus, the jury could have inferred that other testimony about safety meetings
was untrue. Id. The superintendent, thus, exhibited conscious indifference because
he instructed the crew to perform a task involving a flammable liquid and
circumstantial evidence showed that he ignored safety procedures relevant to that
task. See id.; see also Lee Lewis, 70 S.W.3d at 784, 786 (holding that the subjective
element of gross negligence was satisfied where a “job superintendent” saw
employees working on the ninth floor of a building that was under construction with
an “ineffective fall-protection system” and “did nothing to remedy it”).
The present case is more like Andrade because there was no evidence that a
Precision supervisor was conscious that one of its employees was about to scope out
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the derrick from the two trucks but, nonetheless, allowed the employee to continue
doing so without conducting a JSA meeting beforehand. There is no evidence that
a Precision supervisor instructed Briley or any employees to begin scoping out the
rig. All Precision supervisors, including Franco, testified that it was not yet time to
scope out the derrick when Godines went to remove the pins and that the derrick was
not in the position to begin that process.
Although Franco testified that he knew it was dangerous to work around the
rig, his admission that the derrick did not pose a risk while it was parked on the
tractor-trailers shows that he was not subjectively aware of the risk at the time
Godines removed the pin. Like the managers in Andrade who all testified that they
believed that they locked out the crane, all Precision managers subjectively believed
that there was no risk to the crew at the particular time that Godines went under the
derrick to remove the travel pins. Franco also testified that “[t]he instructions from
the truck pusher to Godines were not cleared through” him, and he admitted that
there was no reason for his crew to be around the derrick at that time.
Furthermore, Godines was an experienced employee with the authority to stop
work if he thought an activity was unsafe. Employee experience and “stop work
authority” are factors that decrease the foreseeability that a worker would encounter
an extreme risk without specific instructions. See Petri v. Kestrel Oil & Gas Props.,
L.P., 878 F. Supp. 2d 744, 768 (S.D. Tex. 2012) (holding that there was not clear
and convincing evidence that the employer was subjectively aware that an
experienced worker with stop work authority “would miscalculate the danger, not
comply with company safety standards, nor use a readily available life vest, despite
the clear sign requiring it, nor exercise his stop work authority”).
Appellants argue that circumstantial evidence indicates that Precision was
aware that the process of scoping out the derrick had begun. Another Precision
employee, Quezado, was in the area around the derrick when Godines went to
15
remove the pins, and Quezado heard the Briley truck pusher discuss scoping out the
derrick on his radio. However, Quezado testified that he was working on the mud
boat nearby, and the uncontroverted evidence shows that only Briley truck pushers
used the radios. Without evidence that Precision supervisors communicated with
Briley or were otherwise aware of Briley’s actions, the radio conversation does not
raise a question of material fact that Precision supervisors consciously allowed their
crew to begin scoping out the rig without a JSA meeting. Standing alone,
circumstantial evidence of the proximity of one other employee performing different
tasks in the same area is too meager to impute actual awareness to Precision’s
supervisors. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)
(citing Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995)). Therefore, these
facts do not create the inference that a Precision supervisor was aware that the Briley
truck pusher or any employee would begin the process of scoping out the derrick
and consciously disregarded the risk to Godines. Appellants failed to adduce
evidence that raised a genuine issue of material fact that a Precision supervisor was
aware of the risk to Godines and that such supervisor began scoping out the derrick
with conscious indifference to Godines’s safety. Thus, Appellants failed to raise a
genuine issue of material fact on the mental state required to prove gross negligence.
We overrule Appellants’ third issue.
IV. Conclusion
The trial court did not abuse its discretion when it allowed and considered the
late-filed evidence, and the trial court properly granted summary judgment in favor
of Precision on Appellants’ negligence claim. Because Appellants failed to raise a
genuine issue of material fact on one or more elements of their gross negligence
claim, the trial court did not err when it granted Precision’s no-evidence motion for
summary judgment. In light of this court’s disposition of Appellants’ second, third,
and fourth issues, we also overrule Appellants’ global first issue.
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V. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
May 31, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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