Raul Amparo Zuniga Rodriguez and Ana Maria Ortiz Martinez, Individually and as Personal Representatives, and Heirs of the Estate of Raul Amparo Zuniga Ortiz Jr. And Juana Guadalupe Martinez, as Next Friend of Sebastian Zuniga and Wendy Zuniga,et Al. v. Conway Waak Jr. and Marlene Waak D/B/A Carmine Charolais Ranch and Carmine Charolais Ranch ( 2018 )

Opinion issued August 21, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00755-CV
———————————
RAUL AMPARO ZUNIGA RODRIGUEZ AND ANA MARIA ORTIZ
MARTINEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVES,
AND HEIRS OF THE ESTATE OF RAUL AMPARO ZUNIGA ORTIZ JR.,
AND JUANA GUADALUPE MARTINEZ, AS NEXT FRIEND OF
SEBASTIAN ZUNIGA AND WENDY ZUNIGA, HEIRS OF THE ESTATE
OF RAUL AMAPRO ZUNIGA ORTIZ JR., Appellants
V.
CONWAY WAAK JR. AND MARLENE WAAK, D/B/A CARMINE
CHAROLAIS RANCH, AND CARMINE CHAROLAIS RANCH, Appellees
On Appeal from the 155th District Court
Fayette County, Texas1
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Third District of Texas. Misc. Docket No. 17-9128 (Tex. Sept. 28, 2017); see also
TEX. GOV’T CODE ANN. § 73.001 (West 2013) (authorizing transfer of cases).
Because we do not find any controlling authority from the Austin Court of Appeals
for the issues raised, we apply precedent of this Court. See TEX. R. APP. P. 41.3
Trial Court Case No. 2014V-262
OPINION
Raul Amparo Zuniga Rodriguez, Ana Maria Ortiz Martinez, and Juana
Guadalupe Martinez (the Zunigas) filed suit against Conway Waak, Jr. and Marlene
Waak, asserting claims arising from the death of Raul Amparo Zuniga Ortiz, Jr.
(Zuniga). The Waaks sought summary judgment, arguing that the Zunigas’ claims
were governed by the Farm Animal Activities Act (FAAA or the Act).2 The trial
court granted summary judgment in full, holding the Zunigas’ claims were barred
by the Act. In three issues on appeal, the Zunigas argue that the Act does not bar
their claims.
We reverse and remand.
Background
The Waaks own a ranch in Fayette County, Texas. They breed, raise, and sell
purebred Charolais and Braford cattle on the ranch. Both have worked with cattle
their entire lives.
Zuniga began working for the Waaks in 2005. He moved onto the ranch and
began working for the Waaks full time in 2007 or 2008. His responsibilities involved
(requiring reviewing court to “decide the case in accordance with the precedent of
the transferor court” when courts’ precedents are inconsistent).
2
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 87.001–.005 (West 2017).
2
feeding, moving, and monitoring the cattle. He frequently performed those duties
alone.
Zuniga died on October 2, 2013. The day before he died, the Waaks instructed
Zuniga to move some cattle to a different pasture. Conway Waak asked Zuniga if
he needed help. Zuniga said he did not. There were about twenty cattle to be moved,
including one calf and one bull. The bull had been with the cows to breed for about
two to three months. On October 2, Zuniga began to move the cows to a different
pasture. Zuniga had moved all of the cows except for the bull, the calf, and the calf’s
mother before he was eventually found dead from severe blunt-force impact wounds
determined to have been caused by the bull.
The Waaks did not carry workers’ compensation insurance for their
employees. The Zunigas brought suit against the Waaks to recover damages for
Zuniga’s personal injuries and death. In their live petition, the Zunigas asserted
wrongful death and survival claims. Specifically, the family asserted that the Waaks
were negligent by failing to provide proper safety equipment and failing to
adequately warn Zuniga of dangers existing on the premises, among other things.
The Waaks eventually filed a partial motion for traditional summary
judgment. In it, the Waaks argued that the FAAA—which provides liability
protection for injuries arising out of certain farm activities in the form of a waiver of
liability—applied to Zuniga as an employee of the ranch and thereby governed the
3
Zunigas’ claims and waived the Waaks’ liability to the Zunigas. The Waaks
recognized in the motion that the Act has exceptions to the waiver of liability. They
asked the court to grant summary judgment on the Zunigas’ claims except to the
extent that the claims fell within the exceptions to the FAAA.
In their summary judgment motion, the Waaks acknowledged Dodge v.
Durdin, 187 S.W.3d 523 (Tex. App.—Houston [1st Dist.] 2005, no pet.), a case from
this Court which held that the Equine Act, the predecessor to the FAAA, did not
apply to employees. The Waaks urged the trial court not to adopt the reasoning of
the case, critiquing the justifications this Court used to reach our holding. They
argued that Zuniga was an independent contractor and, as such, a “participant”
engaged in a farm animal activity under the FAAA when he died, and thus their
liability for claims for his injuries was waived.
The Zunigas responded to the motion. They argued that Zuniga was an
employee of the Waaks. As a result, they urged the trial court to apply the reasoning
from this Court in Dodge and to rule that, like the Equine Act, the FAAA does not
apply to their claims and does not waive the Waaks’ liability for Zuniga’s injuries.
They are, instead, that Zuniga was a “farm and ranch employee” for whom the
Waaks were required to maintain workers compensation insurance and did not,
subjecting them to the Zunigas’ common law claims.
4
The trial court ruled that the Zunigas’ claims were governed by the FAAA
and that the Act waived the Waaks’ liability to the Zunigas. It granted complete
summary judgment in favor of the Waaks on their claims. The Zunigas appealed.
Standard of Review
A summary-judgment movant must conclusively establish its right to
judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.
1986). Because summary judgment is a question of law, we review a trial court’s
summary judgment decision de novo. See Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
To prevail on a traditional summary-judgment motion asserted under Rule
166a(c), a movant must prove that there is no genuine issue regarding any material
fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c);
Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A matter
is conclusively established if reasonable people could not differ as to the conclusion
to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816
(Tex. 2005).
A party moving for traditional summary judgment on a claim for which it does
not bear the burden of proof must either (1) disprove at least one element of the
plaintiff’s cause of action or (2) plead and conclusively establish each essential
element of an affirmative defense to rebut the plaintiff’s cause. See Am. Tobacco
5
Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). If the movant meets its
burden, the burden then shifts to the non-movant to raise a genuine issue of material
fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d
195, 197 (Tex. 1995).
Applicability of the FAAA
In their first issue, the Zunigas argue that the trial court erred by determining
that their claims were waived by the FAAA’s waiver of liability. In their second
issue, they argue that Zuniga was not a “participant” in a farm animal activity as that
term is defined within the Act, but an employee of the Waaks, and therefore, under
Dodge and other law, the Act does not bar their claims. In their third issue, they
argue that they raised at least a fact issue as to whether the Waaks were exempt from
the application of the Texas Workers’ Compensation Act and were, therefore,
required to maintain workers’ compensation insurance for their employees and did
not. The first two issues concern the proper construction of the FAAA and our
interpretation of its predecessor, the Equine Act, in Dodge. The third concerns the
construction of the Workers’ Compensation Act and its application to this case. All
three issues require us to construe the applicable statutes.
A. Standard of Review of Statutory Interpretation
Statutory interpretation is subject to de novo review. Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). Statutory language must be analyzed
6
in its context, considering both the specific sections at issue and the statute as a
whole. Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). “If a
statute is worded clearly, we must honor its plain language, unless that interpretation
would lead to absurd results.” Combs v. Health Care Servs. Corp., 401 S.W.3d 623,
629 (Tex. 2013). We interpret a statute by applying the plain meaning of the words
used in the statute. See Lippincott, 462 S.W.3d at 509. “We read statutes
contextually to give effect to every word, clause, and sentence, because every word
or phrase is presumed to have been intentionally used with a meaning and a
purpose.” Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018).
We rely solely on the plain meaning of the words used “unless a different meaning
is supplied by legislative definition or is apparent from the context, or the plain
meaning leads to absurd results.” Id.; Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); accord Tanya L. McCabe Tr. v. Ranger
Energy LLC, 531 S.W.3d 783, 794 (Tex. App.—Houston [1st Dist.] 2016, pet.
denied). “When a statute’s language is clear and unambiguous, it is inappropriate to
resort to rules of construction or extrinsic aids to construe the language.” City of
Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008); accord Molinet v. Kimbrell,
356 S.W.3d 407, 414 (Tex. 2011).
“A court may not judicially amend a statute and add words that are not
implicitly contained in the language of the statute. Only when it is necessary to give
7
effect to the clear legislative intent can we insert additional words into a statutory
provision.” Jones v. Liberty Mutual Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988)
(internal citations omitted); see also City of Rockwall, 246 S.W.3d at 629; Lee v.
City of Houston, 807 S.W.2d 290, 294–95 (Tex. 1991) (observing, “It is the
obligation of the legislature, rather than the courts, to develop a workable definition
of [a given statutory term]”). However, “[w]hile ‘it is not for courts to undertake to
make laws “better” by reading language into them,’ we must make logical inferences
when necessary ‘to effect clear legislative intent or avoid an absurd or nonsensical
result that the Legislature could not have intended.’” Castleman, 546 S.W.3d at 688.
“[W]e consider the context and framework of the entire statute and meld its words
into a cohesive reflection of legislative intent.” Rodriguez, 547 S.W.3d at 839
(quoting Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 518
S.W.3d 318, 326 (Tex. 2017)). We also “construe statutes so as to harmonize [them]
with other relevant laws, if possible.” Id. at 838–39.
B. The Farm Animals Activities Act
The FAAA was originally known as the Equine Act and waived liability of
“equine activity sponsors” and “equine professionals,” among other persons, for
damages resulting from dangers or conditions that are an inherent risk of an equine
activity. See Dodge, 187 S.W.3d at 527. It has since been updated and renamed to
apply to a broader array of persons, animals, and activities. See Act of May 23,
8
2011, 82nd Leg., R.S., ch. 896, 2011 Tex. Gen. Laws 2288, 2288–90 (codified at
TEX. CIV. PRAC. & REM. CODE ANN. §§ 87.001–.005 (West 2017)). Most
importantly, with the update, the Act applies to farm animal activities related to
cattle. See TEX. CIV. PRAC. & REM. CODE ANN. § 87.001(2-a)(B) (West 2017).
As updated, section 87.003 of the FAAA waives liability against “any person,
including a farm animal activity sponsor, farm animal professional, livestock
producer, livestock show participant, or livestock show sponsor,” for “property
damage or damages arising from the personal injury or death of a participant in a
farm animal activity or livestock show if the property damage, injury, or death results
from the dangers or conditions that are an inherent risk of a farm animal activity or
the showing of an animal on a competitive basis in a livestock show.” Id. § 87.003
(West 2017). Section 87.003 explicitly identifies “dangers or conditions that are an
inherent risk of a farm animal activity” to include “the propensity of a farm animal
or livestock animal to behave in ways that may result in personal injury or death to
a person on or around it,” and “the potential of a participant to act in a negligent
manner that may contribute to injury to the participant or another, including failing
to maintain control over a farm animal or livestock animal or not acting within the
participant’s ability.” Id. § 87.003(1), (5).
Section 87.001 defines “engages in a farm animal activity” to mean “riding,
handling, training, driving, loading, unloading, assisting in the medical treatment of,
9
being a passenger on, or assisting a participant or sponsor with a farm animal.” Id.
§ 87.001(1).
“Farm animal activity,” in turn, is defined to include a broad number of
activities. See id. § 87.001(3). It includes, for example, training or teaching
activities that involve a farm animal, boarding a farm animal, “riding, inspecting,
evaluating, handling, loading or unloading a farm animal belonging to another,” and
providing medical treatment for a farm animal. Id. § 87.001(3)(B)–(D), (G).
“Farm animal activity sponsor” is defined as including “a person or group who
sponsors, organizes, or provides the facilities for a farm animal activity, including
facilities for a pony club, 4-H club, hunt club, therapeutic riding program, or high
school or college class, program, or activity, without regard to whether the person
operates for profit.” Id. § 87.001(4)(A).
“Farm animal professional” is defined as “a person engaged for
compensation: (A) to instruct a participant or rent to a participant a farm animal for
the purpose of riding, driving, or being a passenger on the farm animal; (B) to rent
equipment or tack to a participant; (C) to examine or administer medical treatment
to a farm animal as a veterinarian: or (D) to provide veterinarian or farrier services.”
Id. § 87.001(5).
“Livestock producer” is defined as “a person who owns, breeds, raises, or
feeds livestock animals.” Id. § 87.001(6-a).
10
“Participant” is defined to mean “with respect to a farm animal activity, a
person who engages in the activity, without regard to whether the person is an
amateur or professional or whether the person pays for the activity or participates in
the activity for free.” Id. § 87.001(9)(A).
Finally, section 87.004 provides certain exceptions to the exemption from
liability provided to a “person” defined by section 87.003. See id. § 87.004 (West
2017). In relevant part, it limits the circumstances under which “[a] person,
including a farm animal activity sponsor, farm animal professional, livestock show
participant, or livestock show sponsor, is liable for property damage or damages
arising from the personal injury or death caused by a participant in a farm animal
activity or livestock show,” if, among other things, “the person provided the farm
animal or livestock animal and the person did not make a reasonable and prudent
effort to determine the ability of the participant to engage safely in the farm animal
activity . . . and determine the ability of the participant to safely manage the farm
animal or livestock animal, taking into account the participant’s representations of
ability.” Id. § 87.004(2).
C. Zuniga’s Status as a “Participant” Under the FAAA
The parties disputed before the trial court whether Zuniga was a “participant”
in a “farm animal activity” for which liability was waived for the Waaks under the
terms of the FAAA.
11
With the statutory terms set out above in mind, we hold that Zuniga was not
a “participant” in a farm animal activity as contemplated by the FAAA. First, we
observe that the definition of a “farm animal activity sponsor” in section 87.001(4)
does not expressly or impliedly include a ranch owner who raises livestock for
consumption and employs ranch hands to handle them. A ranch owner, such as the
Waaks, could be exempted from liability for the personal injuries and death of a
plaintiff, such as Zuniga, under the FAAA only as a “livestock producer,” or “a
person who owns, breeds, raises, or feeds livestock animals,” and then only if the
plaintiff who was injured or killed was a “participant” in a farm animal activity. See
id. §§ 87.001(6-a), (9), 87.003.
We further observe that the definition of a “participant” in a farm animal
activity in section 87.001(9) does not include a person employed on a ranch or farm
for compensation to perform the activities of a ranch hand, as Zuniga was here.
Rather, a participant is clearly defined by the plain meaning of the statute as a person
who engages in the activity as “an amateur or professional,” a person who pays for
the activity, or a person who participates in a “farm animal activity” for free. A
“farm animal professional” is then further defined as “a person engaged for
compensation: (A) to instruct a participant or rent to a participant a farm animal for
the purpose of riding, driving, or being a passenger on the farm animal; (B) to rent
equipment or tack to a participant; (C) to examine or administer medical treatment
12
to a farm animal as a veterinarian: or (D) to provide veterinarian or farrier services.”
Id. § 87.001(5).
We “may not judicially amend a statute and add words that are not implicitly
contained in the language of the statute.” Jones, 745 S.W.2d at 902. Thus, Zuniga—
as a hired ranch hand—was not a “participant” in a farm animal activity, as defined
by the FAAA; and, therefore, the FAAA does not apply to this case and waive the
Waaks’ liability for the Zunigas’ claims.
Our construction of the FAAA in this case accords with our construction of
the predecessor statute, the Equine Act, in Dodge, 187 S.W.3d 527–30, which we
are bound to follow as precedent under the doctrine of stare decisis. See Sw. Bell
Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008); Martinez v. Houston
McLane Co., LLC, 414 S.W.3d 219, 222–23 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied) (observing stare decisis promotes efficiency, fairness, and legitimacy in
judicial system and allows parties to justifiably rely on our past opinions, promoting
predictability in law); see also Willis v. BPMT, LLC, 471 S.W.3d 27, 33 (Tex.
App.—Houston [1st Dist.] 2015, no pet.) (stating, “‘the doctrine of stare decisis has
its greatest force’ in the area of statutory construction”) (quoting Mitchell, 276
S.W.3d at 447).3 This is because if the Legislature does not modify the statute to
3
We note, however, that “the doctrine [of stare decisis] is not absolute.” Sw. Bell
Tel. Co., L.P. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008). When the reasons for
adhering to our prior holding no longer further the interests of “efficiency, fairness,
13
abrogate the court’s interpretation, “there is little reason for the court to reconsider
whether its decision was correct.” Mitchell, 276 S.W.3d at 447. Here, the
Legislature did not abrogate the parts of the statute material to our determination; it
merely extended relevant provisions to livestock producers and participants in farm
animal activities involving livestock. We, therefore, turn to Dodge.
In Dodge, brought under the predecessor statute, the Equine Act, a stable
employee brought a negligence action against her employer and supervisor at the
stables, claiming that she had sustained an injury when an untamed horse kicked her
in the abdomen as she was administering an oral deworming medication to it, as
directed by her employer and supervisor. 187 S.W.3d at 525. The injured plaintiff
asserted that the Equine Act did not preclude the defendants’ liability to her because
she was an employee rather than a participant in an equine activity as defined under
the Act. Id. As here, at the time of the injury, the plaintiff’s employer did not carry
workers’ compensation insurance. Id. at 526.
We held in Dodge that employees of the owner of a farm animal were not
included in the definition of participant under the Equine Act. Id. at 530. We
presented three grounds to support our holding: statutory construction of the
and legitimacy,” and when “the general interest will suffer less” from a departure in
the law than from strict adherence, then we should depart from our prior holding.
Id. “[S]tare decisis does not compel perpetuating an interpretation of [a statute] that
. . . cannot be discerned from the text of the statute.” Marsh USA Inc. v. Cook, 354
S.W.3d 764, 779 (Tex. 2011).
14
definition of “participant,” legislative history, and the consequences of alternative
constructions. Id. at 527–30.
For statutory construction, we focused on the phrase “without regard to
whether . . . the person pays for the activity or participates in the activity for free”
within the definition of “participant.” Id. at 528 (citing TEX. CIV. PRAC. & REM.
CODE ANN. § 87.001(9)). We reasoned that, because employees are paid for
activities rather than paying or doing them for free, this phrase suggested that the
definition was limited to consumers, not employees. Id.
We supported our reasoning as to the Legislature’s intent in enacting the
Equine Act by reference to the legislative history of the statute and the circumstances
under which it was enacted. We observed that a legislative report had cited the
negative impact of liability for horses on the tourism industry, which “‘ha[d] been
adversely affected by the expansion of liability as well as charitable, philanthropic
and educational organizations,’” and was “silent about any intent to affect the
employer-employee relationship.” Id. at 528–29 (citing SENATE NATURAL RES.
COMM., BILL ANALYSIS, Tex. H.B. 280, 74th Leg., R.S. (1995)). We reasoned that
“[t]he statute as a whole suggests that the nature and object to be obtained by the
Equine Act [was] to protect the tourism industry, not to abrogate the regulation of
employer-employee relationships in Texas, as defined in the Labor Code.” Id. at 529.
15
We further reasoned that “the Equine Act lacks express legislative intent to
abrogate employer duties as delineated in the Workers’ Compensation Act.” Id. at
530. We stated, “Employers owe certain nondelegable and continuous duties to
employees acting in the course and scope of their duties, including the duties to warn
about the hazards of employment, to supervise activities, to furnish a reasonably safe
workplace, and to furnish reasonably safe instrumentalities with which to work.” Id.
at 529 (citing Farley v. M.M. Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975)). And
we pointed out that the Legislature enacted the Texas Workers’ Compensation Act
in the Labor Code in response to the needs of workers who were increasingly being
denied recovery for injuries received in “escalating industrial accidents.” Id. (citing
Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000)).
We specifically observed that the Workers’ Compensation Act allows injured
workers whose employers provide workers’ compensation insurance to recover
damages without establishing the employer’s fault and without regard to their own
negligence; and, in exchange, employees receive “a lower but more certain recovery
than would have been possible under the common law.” Id. To prevent employers
from opting out of the Act, the Legislature enacted Labor Code section 406.033,
which precludes non-subscribing employers from asserting the employee’s
contributory negligence or assumption of risk or the negligence of another employee
as the cause of their injuries. Id. (citing TEX. LAB. CODE ANN. § 406.033 (West
16
2015)). We also observed that the Texas Supreme Court had held that courts should
construe the Workers’ Compensation Act liberally in favor of the injured worker and
should not construe the statute “in a manner that supplies, by implication, restrictions
on an employee’s rights not found in section 406.033’s plain language.” Id. (citing
Kroger, 23 S.W.3d at 349).
We concluded in Dodge, “Because the Equine Act does not expressly state an
intent to abrogate the Workers’ Compensation Act and the Legislature’s policy to
protect workers, the consequence of including employees among those subject to the
Equine Act would be to remove well-settled employer duties under the Labor Code
without express, supporting legislative intent.” Id. at 530. Accordingly, we held
that, “although the Equine Act does not specifically exclude employees acting within
the course and scope of their employment from the definition of ‘participant’ under
the Act, the statutory language specifically encompasses those who pay to participate
in the equine activity or who choose to participate for free”; and that, by contrast,
employees neither pay to participate in the activity nor participate in it for free, but
rather are paid for their labor. Id. We further held that, because the Equine Act was
intended to limit liability for those involved in the tourism industry, not to limit
employees’ rights against their employers, and because the Act lacked express
legislative intent to abrogate employer duties as delineated in the Workers’
17
Compensation Act, an employee covered by the Workers’ Compensation Act is not
“a participant in an equine activity under the Equine Act.” Id.
Finally, we observed in Dodge that “[a]n employer who does not subscribe to
workers’ compensation insurance coverage is responsible for work-related injuries
under common-law negligence principles.” Id. (citing TEX. LABOR CODE ANN.
§ 406.033(d)). In such a case, “To recover, the plaintiff must prove negligence of
the employer, or of an agent or servant of the employer, acting within the general
scope of the agent’s or servant’s employment.” Id. And, to establish negligence,
the plaintiff must produce evidence establishing a duty owed the employee by the
employer, breach of the duty, and damages proximately caused by the breach. Id.
The plaintiff in Dodge, in response to the stable owners’ no-evidence motion for
summary judgment, raised a fact issue with respect to every element of her
negligence cause of action.4 Id. at 531–32. Therefore, because the Dodge’s
employer—the stable owners—did not carry workers’ compensation insurance, we
reversed the summary judgment entered in favor of the employer-stable owners and
remanded the case for further proceedings. Id. at 532.
The Waaks urge us to overrule Dodge on the ground that other courts, most
recently the Fourteenth Court of Appeals, have disagreed with the reasoning in
4
We note that Dodge’s status as an employee was not contested. Dodge v. Durdin,
187 S.W.3d 523, 529–31 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
18
Dodge that the Legislature intended to limit liability under the Equine Act to those
“involved in the tourism industry.” Id. at 530. We decline the invitation.
The most recent case to construe the meaning of “participant” under the
FAAA, Young v. McKim, 373 S.W.3d 776, 780–81 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied), was, like Dodge, actually brought under the predecessor
Equine Act. In that case, a woman, Young, worked at some stables, helping to take
care of horses that various owners kept there. Id. at 778. While she was walking
one horse to a paddock, the horse kicked her. Id. at 779. She sued the McKims, the
owners of the stables, for negligence, and they sought summary judgment on her
claims, arguing that they were immune from liability to her under the Equine Act—
which, at the time of her injury, had not been amended—because her alleged injuries
arose from risks inherent in an equine activity. Id. The trial court agreed with the
McKims and granted summary judgment in their favor. Id.
On appeal, Young argued that she was not a “participant” in an “equine
activity” when she was injured, and, therefore, the Equine Act did not apply to
preclude her claims against the stable owners. Id. at 781. She cited the statement in
Dodge that the legislative history of the Equine Act suggested that the Legislature
“enacted the Equine Act to limit the liability of equine sponsors to tourists and other
consumers of equine activities.” Id. at 780. The Fourteenth Court of Appeals
disagreed with the statement “that only consumers of equine activities qualify as
19
participants in equine activities as defined in the Equine Act.” Id. at 780–81. It
reasoned:
The Equine Act is a comprehensive limitation of liability for equine
activities of all kinds. The Equine Act applies to all “participants.” A
“participant” in an equine activity is defined in the statute as “a person
who engages in the activity, without regard to whether the person is an
amateur or professional or whether the person pays for the activity or
participates in the activity for free.” Under the statute, “‘engages in an
equine activity’ means riding, handling, training, driving, assisting in
the medical treatment of, being a passenger on, or assisting a participant
or sponsor with an equine animal.”
Id. at 781 (internal citations omitted). The court observed that “the statute
specifically includes as a category ‘assisting in the medical treatment of’ an equine
animal,” which was the activity being performed by the plaintiff when she was
injured. Id.
The court of appeals then addressed whether Young was the McKims’
employee and therefore entitled to bring her negligence claims against them, since
they had not subscribed to the Workers’ Compensation Act, which would have
provided insurance coverage for her injuries, or whether she was an independent
contractor and therefore not entitled to workers’ compensation insurance coverage.
Id. at 782. In making this determination, the court relied upon the reasoning in
Dodge “that if an employee were determined to be a participant in an equine activity,
it would abrogate employer duties delineated in the Workers’ Compensation Act.”
Id.
20
The court applied the test established by the Texas Supreme Court to
determine whether a worker such as Young was an employee rather than an
independent contractor under the facts of the case, namely “whether the employer
has the right to control the progress, details, and methods of operations of the work,”
and concluded that “the summary-judgment evidence conclusively shows that
Young was an independent contractor when [the horse] Jasper kicked her.” Id.
(citing Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.
2002) (establishing test)).
The court reasoned that because Young was not an employee of the stables
but rather an independent contractor, she was not excluded as a participant in an
equine activity covered by Equine Act section 87.001, and the Act proscribed her
claims.5 Id. at 781 (citing Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.—Corpus
5
The Equine Act defined “equine activity” as:
(A) an equine animal show, fair, competition, performance, or
parade involves any breed of equine animal and any equine
discipline…;
(B) equine training or teaching activities;
(C) boarding equine animals;
(D) riding, inspecting, or evaluating an equine animal belonging to
another, without regard to whether the owner receives
monetary consideration or other thing of value for the use of
the equine animal. . . ;
(E) informal equine activity, including a ride, trip, or hunt that is
sponsored by an equine activity sponsor;
(F) placing or replacing horseshoes on an equine animal; or
21
Christi 2002, no pet.) (holding that plaintiff leading horse to paddock was participant
in equine activity as defined in Equine Act, but that there was fact issue as to whether
one of exceptions to exclusion from liability found in section 87.004 of Act
applied)). The court held that Young had failed to raise a fact issue as to any of the
exceptions to the Equine Act’s waiver of liability for participants in equine activities
set out in section 87.004, and it affirmed summary judgment in favor of the stable
owners. Id. at 784.
The Waaks argue in this case that Young supports their contention that the
FAAA waives their liability for the Zunigas’ claims because the Fourteenth Court
of Appeals disagreed with the statement in Dodge “that only consumers of equine
activities qualify as participants in equine activities as defined in the Equine Act.”
Id. at 781. They urge us to conclude, on the basis of Young, that the FAAA precludes
the Zunigas’ claims for the same reason and that Dodge should be overruled. We
reject this argument for two reasons.
(G) without regard to whether the participants are compensated,
rodeos and single event competitions, including team roping,
calf roping, and single steer roping.
Johnson v. Smith, 88 S.W.3d 729, 732 (Tex. App.—Corpus Christi 2002, no pet.)
(quoting section 87.001 of Equine Act, which has since been amended to create
FAAA).
22
First, the FAAA expressly broadened the scope of activities covered by the
Equine Act,6 so those portions of the legislative history of the Equine Act that apply
to conditions prevailing when that predecessor statute was enacted that are
inconsistent with the language of the FAAA were overridden by the amendments to
the Act and are moot. See Lee, 807 S.W.2d at 294 (“It is the obligation of the
legislature, rather than the courts, to develop a workable definition of [a statutory
term]”); see also Willis, 471 S.W.3d at 34 (holding that courts interpreting amended
statutes must presume that legislature intended that repeal of statutory definition
would result in courts applying different definition consistent with principles of
statutory construction). But the Legislature did not otherwise amend the language
or scope of the Act to abrogate the protections of the Workers’ Compensation Act.
In particular, the amendments did not add employees who perform farm animal
activities for a ranch owner who employs them in return for compensation to the list
of “participants” or “professionals” for whose injuries in the scope of their
employment a “person,” such as a “farm animal activity sponsor” or “livestock
producer,” is exempt from liability. See TEX. CIV. PRAC. & REM. CODE ANN. §§
87.001, 87.003. Thus, because the Legislature did not amend the statute to include
an “employee” within the definition of a “participant” in a farm animal activity, the
amendment of the Act subsequent to Dodge does not change our view that a farm or
6
See the meaning of “equine activity” as defined in the Equine Act, set out in note 4.
23
ranch employee is not a “participant” under the amended FAAA, just as the Young
court likewise concluded. See Young, 373 S.W.3d at 782; see also Jones, 745
S.W.2d at 902 (“A court may not judicially amend a statute and add words that are
not implicitly contained in the language of the statute. Only when it is necessary to
give effect to the clear legislative intent can we insert additional words into a
statutory provision.”) (citations omitted).
Second, regardless of whether the Legislature “suggested” its intent to limit
the definition of participants under the Equine Act to “consumers of equine
activities,” we did not rest our holding in Dodge on this legislative history and it is,
therefore, dictum. We rested our holding on the plain language of the statute and
the harmonization of the Equine Act with the Workers’ Compensation Act. See
Dodge, 187 S.W.3d at 529–30 (distinguishing scope of Acts); see also Castleman,
546 S.W.3d at 688 (“While ‘it is not for courts to undertake to make laws “better”
by reading language into them,’ we must make logical inferences when necessary
‘to effect clear legislative intent or avoid an absurd or nonsensical result that the
Legislature could not have intended.’”) (quoting Cadena Comercial USA Corp., 518
S.W.3d at 338); Rodriguez, 547 S.W.3d at 838–39 (“[W]e consider the context and
framework of the entire statute and meld its words into a cohesive reflection of
legislative intent, [and we] construe statutes so as to harmonize [them] with other
relevant laws, if possible.”).
24
The Waaks’ argument that Young abrogated Dodge because the Young court
rejected the argument in Dodge that the Equine Act was confined to tourism
activities is incorrect. The Fourteenth Court of Appeals in Young followed the same
reasoning as Dodge (with specific reference to Dodge) in concluding that an
“employee” is not a participant under the Equine Act, now the FAAA, because such
a reading of the Act would generate a conflict with the Workers’ Compensation Act.
See Young, 373 S.W.3d at 782. And it concluded that Young was a participant in an
equine activity covered by Equine Act section 87.003 because she was an
independent contractor, not an employee. Id. at 781 (citing Johnson, 88 S.W.3d at
732).
We have held that Zuniga was not a participant in a farm animal activity at
the time of his death and that, therefore, the FAAA does not bar the Zunigas’ claims.
Accordingly, we turn to whether the Zunigas have raised a fact issue as to whether
Zuniga was an employee of the Waaks under the terms of the Workers’
Compensation Act, and, if so, whether the Zunigas have raised a fact issue as to
every element of their claims against the Waaks, requiring reversal of the summary
judgment against them.
D. The Texas Workers’ Compensation Act
The Texas Workers’ Compensation Act (TWCA) provides for elective
workers’ compensation insurance coverage of employees by their employers. TEX.
25
LABOR CODE ANN. §§ 406.001–406.165 (West 2015 & Supp. 2017). The TWCA
specifically applies to “an action to recover damages for personal injuries or death
sustained by a farm or ranch employee” who is employed by a person with a gross
annual payroll of at least $25,000 or “who employs three or more farm or ranch
employees other than migrant or seasonal workers.” See id. § 406.162(a)(3)(B)(i),
(ii) (West 2015). TWCA section 406.165, however, expressly excludes independent
contractors from workers compensation insurance coverage. See id. § 406.165
(West 2015).
It is undisputed that three ranch hands were working on the Waaks’ ranch at
the time of Zuniga’s death. It is also undisputed that the Waaks did not provide
workers’ compensation insurance for these workers. Under the terms of section
406.162,(a)(3)(B)(k) and (ii), the TWCA did not apply to the Waaks if they had
fewer than three employees.7 The TWCA also did not apply if the workers were
independent contractors. The Waaks concede that one of these three workers was
an employee, but they argue that the other two workers, including Zuniga, were
independent contractors.
7
The parties also discuss the minimum payroll. The statute they are disputing says
the Workers’ Compensation Act applies to ranch employees if any of the listed,
disjunctive tests are true. TEX. LAB. CODE ANN. § 406.162(a) (West 2015).
Because the number-of-employees test applies, we do not need to determine
whether the minimum-payroll test also applies.
26
Under TWCA section 406.165, “[a] farm or ranch employee who performs
work or provides a service for a farm or ranch employer . . . is an employee of that
employer unless the employee is hired to perform the work or provide the service as
an employee of an independent contractor.” Id. For a person to be an independent
contractor rather than an employee of an employer, there has to be another person
who “acts as the employer of the employee by paying wages, directing activities,
and performing other similar functions.” Id. § 406.165(b)(1). There is no evidence
that Zuniga or anyone else working on the ranch worked for, was directed by, or
provided services for anyone other than the Waaks. As a result, no one working at
the Waaks’ ranch qualified as an independent contractor under the TWCA. Cf.
Young, 373 S.W.3d at 782 (holding that Young was independent contractor where
she controlled details of her work for stable owners feeding several horses and
cleaning stables; stable owners employed at least two other persons to feed Jasper;
Young operated independent business which she advertised; and Young was paid
per feeding and stall cleaning).
We conclude that, under the TWCA’s plain terms, Zuniga was an employee
of the Waaks and entitled to coverage under the TWCA because the summary
judgment evidence established that the Waaks employed at least three people to
work on the ranch. None of these workers were seasonal or migrant workers subject
to different requirements, and none qualified as independent contractors. Thus,
27
Zuniga was an employee of the Waaks for purposes of the TWCA as a matter of law.
Moreover, the summary judgment evidence—including the depositions of the
Waaks regarding the events on the day Zuniga was killed, the local sheriff’s office
report, and the medical examiner’s report—raises fact questions as to whether
Zuniga was killed while performing work within the scope of his employment;
whether the Waaks owed him a duty of ordinary care as his employers, which they
breached; and whether his injuries were proximately caused by the breach.
Therefore, the Zunigas have satisfied their burden of proof in avoidance of summary
judgment. See TEX. R. CIV. P. 166a(c); Little, 148 S.W.3d at 381.
Accordingly, we sustain each of the Zunigas’ three issues.
Conclusion
We reverse the trial court’s grant of summary judgment and remand the case
to the trial court for further proceedings consistent with this opinion.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Higley.
Justice Higley, concurring in part and dissenting in part.
28