Marisela G. Salas, Individually and as Representative of the Estate of Martin Suarez and as Next Friend of Keyla Marizel Salas Suares, Minor v. Allen Keller Co. I, L.L.C. D/B/A Allen Keller Co. ( 2014 )


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  •                                                                                ACCEPTED
    04-14-00622-CV
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    12/30/2014 4:37:57 PM
    KEITH HOTTLE
    CLERK
    No. 04-14-00622-CV
    __________________________________________________________________
    FILED IN
    4th COURT OF APPEALS
    IN   THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
    SAN ANTONIO, TEXAS      12/30/2014 4:37:57 PM
    KEITH E. HOTTLE
    Clerk
    MARISELA G. SALAS, INDIVIDUALLY AND AS REPRESENTATIVE OF
    THE ESTATE OF MARTIN SUAREZ AND A/N/F OF KEYLA MARIZEL
    SUAREZ, MARTIN SUAREZ GUERRERO AND SILVIA MARTINEZ,
    APPELLANT
    V.
    ALLEN KELLER CO. I, LLC D/B/A ALLEN KELLER CO.,
    APPELLEE
    __________________________________________________________________
    On Appeal from the 216th Judicial District Court of
    Gillespie County, Texas
    __________________________________________________________________
    APPELLEE’S BRIEF
    Erik R. Wollam
    State Bar No. 00788705
    Ellen Gerson Tagtmeier
    State Bar No. 07827700
    LUCERO | WOLLAM, P.L.L.C.
    13590 Ranch Road 12
    Wimberley, Texas 78676
    Telephone: (512) 485-3500
    Facsimile: (512) 485-3501
    ewollam@lucerowollam.com
    etagtmeier@lucerowollam.com
    TABLE OF CONTENTS
    Page No.
    ABBREVIATIONS ................................................................................................. iii
    INDEX OF AUTHORITIES ....................................................................................iv
    STATEMENT OF THE CASE ................................................................................vi
    ISSUE PRESENTED ............................................................................................. vii
    STATEMENT OF FACTS ....................................................................................... 1
    SUMMARY OF THE ARGUMENT ........................................................................ 2
    ARGUMENT AND AUTHORITIES ........................................................................ 3
    I.       Standard of Review in the Trial Court - Traditional Motion for
    Summary Judgment ............................................................................. 3
    II.      Standard of Review on Appeal- Traditional Motion for Summary
    Judgment ................................................................................................ 4
    III.    The Summary Judgment Evidence did not Raise a Genuine Issue of
    Material Fact Regarding Whether Allen Keller Co. Retained
    Sufficient Control Over the Work Being Performed by Martin
    Suarez When he was Injured Such That Allen Keller Co. is Liable
    to Martin Suarez for Negligence ……………………………………. 5
    A.        Subcontract Agreement - C&B White's Scope of
    Work …………………………………………….…………… 5
    B.        TxDoT Drawings and Plans Controlled C&B's Work ….……. 6
    C.        AK Never Controlled C&B's Work to Put Traffic Control
    Signs in the Pickup and Move the Signs to the Locations
    Where They Were to be Placed ………………………………. 7
    1.       The Day of the Accident ………………………………. 9
    i
    Page No.
    D.       AK Owed no Duty to Suarez ………………………..……… 12
    1.        General rule - Since C&B was an independent contractor,
    AK had no duty to make sure That C&B safely
    performed its work …………………………...……… 12
    2.        Exception to general rule …………...………………. 13
    a.       AK had no actual knowledge of the danger or
    condition that led to Suarez's death …………. 13
    b.       AK did not exercise sufficient control over
    Suarez's work when he was injured ……………14
    IV.      Appellant's Argument Based on Chapter 95 of the Texas Civil
    Practice and Remedies Code is Moot ..……………………………..15
    V.       Excerpts from the Texas Manual on Uniform Traffic Control
    Devices at Tab 3 of the Appendix to Appellant's Brief are not
    Part of the Summary Judgment Record and Can't be Considered
    in this Appeal ...................................................................................... 16
    VI.      Plaintiff Failed to Timely Perfect this Appeal ................................... 17
    CONCLUSION AND PRAYER ............................................................................. 17
    CERTIFICATE OF COMPLIANCE ....................................................................... 18
    CERTIFICATE OF SERVICE ............................................................................... 19
    APPENDIX ............................................................................................................. 20
    ii
    ABBREVIATIONS
    CR = Clerk’s Record
    SCR –Supplemental Clerk's Record
    RR = Reporter's Record
    iii
    INDEX OF AUTHORITIES
    Page No.
    Cases
    Anderson v. Snider,
    
    808 S.W.2d 54
    (Tex. 1991)……………………………...……………3
    City of Houston v. Clear Creek Basin Auth.,
    
    589 S.W.2d 671
    (Tex. 1979)..…………………………………………4
    Compton v. Calabria,
    
    811 S.W.2d 945
    (Tex. App.–Dallas 1991, no writ)….………………4
    Dow Chemical Co. v. Bright,
    
    89 S.W.3d 602
    (Tex. 2002).…………………………………………..……13
    General Electric v. Moritz,
    
    257 S.W.3d 211
    (Tex. 2008).………………………………………………12
    Gibbs v. General Motors,
    
    450 S.W.2d 827
    (Tex. 1970).…………………………………..……………5
    Hoechst-Celanese v. Mendez,
    
    967 S.W.2d 354
    (Tex. 1998).……………………………...………… 12, 15
    K-Six Television, Inc. v. Santiago,
    
    75 S.W.3d 91
    (Tex. App.—San Antonio 2002, no pet.) ………………..…16
    Lear Siegler, Inc. v. Perez,
    
    819 S.W.2d 470
    (Tex. 1991) …………………………………………... 4, 5
    Long v. State Farm Fire & Cas. Co.,
    
    828 S.W.2d 125
    (Tex. App.–Houston [1st Dist.] 1992, writ denied). ………4
    Marathan Corp. v. Pitzner,
    
    55 S.W.3d 114
    (Tex. App—Corpus Christi 2001), rev’d on other grounds,
    
    106 S.W.3d 724
    (Tex. 2003). …………………………………………...…12
    iv
    Page No.
    Nixon v. Mr. Property Management Co.,
    
    690 S.W.2d 546
    (Tex. 1985). ……………………………………..…… 3, 4
    Shell Oil v. Khan,
    
    138 S.W.3d 288
    (Tex. 2004). ………………………………………...……14
    Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc.,
    
    644 S.W.2d 443
    (Tex. 1982). ………………………………………….……3
    Valence Operating Co. v. Dorsett,
    
    164 S.W.3d 656
    (Tex. 2005).……………………………………………..…4
    v
    STATEMENT OF THE CASE
    Nature of Case:    This case arises out of a negligence claim made by estate
    beneficiaries against Allen Keller Co. (a general contractor for a
    TxDOT roadway project near Blanco, Texas) based on personal
    injuries on a job site leading to the death of Martin Suarez.
    Parties:           Martin Suarez was an employee of C&B White Services, Inc.,
    a subcontractor (independent contractor) to Allen Keller Co.
    (as general contractor ) on a TxDoT job near Blanco, Texas.
    Plaintiff sued as the representative of the Estate of Martin
    Suarez, deceased.
    Proceedings:       Plaintiff filed an Original Petition and a First Amended Original
    Petition. CR 5-106, 150-158. Allen Keller Co. filed an Original
    Answer and a First Amended Answer. CR 107-109, 126-128.
    Allen Keller Co. file a Traditional Motion for Summary
    Judgment as to Plaintiff's negligence claim. CR 136-230.
    Plaintiff filed a Response to the Traditional Motion for
    Summary Judgment. CR 231-277. Allen Keller Co. filed a
    Reply to Plaintiff’s Response to the Traditional Motion for
    Summary Judgment. CR 278-281.
    Disposition:       The Court granted the Traditional Motion for Summary
    Judgment and entered a Summary Judgment. CR 304-307.
    Plaintiffs filed a Motion for New Trial [not included in the
    Clerk's Record by Appellant]. The Motion for New Trial was
    overruled by operation of law on August 25, 2014.
    Tex.R.Civ.P. 329b(c).
    Notice of Appeal: On July 11, 2014, Plaintiffs file a Notice of Appeal. CR 310-
    315.
    Record on
    Appeal:            The record on appeal consists of one volume of the Clerk’s
    Record (CR 1-322), one volume of the Reporter’s Record (RR
    1-40) and one volume of the Supplemental Clerk’s Record
    (SCR 1-27).
    vi
    ISSUE PRESENTED:
    The Summary Judgment Evidence did not Raise a Genuine Issue of Material
    Fact Regarding Whether Allen Keller Co. Retained Sufficient Control Over
    the Work Being Performed by Martin Suarez When he was Injured Such
    That Allen Keller Co. is Liable to Suarez for Negligence.
    vii
    STATEMENT OF FACTS
    In July 2012, Martin Suarez ("Suarez's) was employed by C&B White
    Services, Inc. (“C&B”) as part of a concrete crew near Blanco, Texas. CR 208
    (Castillo Depo. 14/5-10); CR 211 (Castillo Depo. 28/2-4). C&B was an
    independent contractor of Allen Keller Co. (“AK”) under a contract to provide
    concrete work around and under the guardrails of the roadway. CR 164 (White
    Depo 6/23 - 7/24). Sometime after C&B began to perform work for AK in or about
    November 2011, C&B agreed that it would also perform traffic control, consisting
    of moving and placing construction zone warning signs and cones for its scope of
    work. CR 159-160 (Affidavit of Kory Keller at ¶ 2); CR 166 (White Depo. 15/8-
    18).
    By July 11, 2012, C&B’s crew had been doing traffic control on this job for
    about a month. That morning, as the C&B crew began the process of setting out
    construction warning signs, Suarez and another crew member decided for the first
    time ever to ride straddling the tailgate of C&B’s pickup (with one foot each inside
    the bed of the truck and one foot on the outside bumper) which was carrying the
    road signs. CR 212 (Castillo Depo. 29/14-30/1, 30/18-31/10). As the C&B truck
    began to move, a road sign was blown out of the bed of the truck, knocking Suarez
    and the other crew member who was straddling the tailgate to the roadway. CR 212
    1
    (Castillo Depo. 32/15-22). Suarez suffered a severe head injury which led to his
    death later that day. CR 223 (Castillo Depo. 76/1-4).
    Plaintiff, as the representative of Suarez's estate, sued C&B (Suarez'ss
    employer) and AK (the general contractor) for negligence, asserting that AK
    retained sufficient control over the details of Suarez'ss that AK is liable in
    negligence to Suarez for his death. CR 150-158. AK filed a Traditional Motion for
    Summary Judgment on the grounds that AK did not exercise sufficient control over
    the work being done by Suarez at the time when he was injured and cannot be held
    liable for his death. CR 136 - 230. The Trial Court granted AK’s Traditional
    Motion for Summary Judgment. (CR 304-307).
    SUMMARY OF THE ARGUMENT
    Suarez was employed by C&B, an independent subcontractor to AK, the
    general contractor. AK, as a general contractor, owed no duty to ensure the
    subcontractor and/or its employees worked safely.       The entirety of Plaintiff’s
    summary judgment evidence was devoted to proving an exception to this rule:
    namely, that AK exercised actual control over "the work.”      Plaintiff’s summary
    judgment evidence, however, missed the mark and failed to raise a fact issue
    linking AK’s alleged control and the activity that actually caused Suarez's injuries
    and death. The cause of Suarez's unfortunate accident was his decision to ride
    straddling the tailgate of his employer’s truck as the crew moved traffic control
    2
    signs. AK’s summary judgment evidence conclusively proved that AK was never
    involved in any way with the manner in which the C&B White crew moved signs
    around and Plaintiff introduced no summary judgment evidence to the contrary.
    Plaintiff also failed to introduce any summary judgment evidence that AK had
    actual knowledge of the danger or condition resulting in Suarez's injury and death
    which is also part of the exception to the general rule; whereas AK’s summary
    judgment evidence conclusively proved that AK had no such knowledge. AK's
    summary judgment evidence proved that AK owed no duty to Suarez and could not
    be liable to him in negligence. The Trial Court properly entered a traditional
    summary judgment in favor of AK.
    ARGUMENT AND AUTHORITIES
    I.    Standard of Review in the Trial Court - Traditional Motion for
    Summary Judgment
    Summary judgment is proper whenever a defendant’s summary judgment
    proof conclusively disproves at least one element of each cause of action alleged
    by the Plaintiff. Anderson v. Snider, 
    808 S.W.2d 54
    , 55 (Tex. 1991); see also
    Nixon v. Mr. Property Management Co., 
    690 S.W.2d 546
    , 548-549 (Tex. 1985). A
    matter is conclusively established if ordinary minds cannot differ as to the
    conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine
    Contractors & Supply, Inc., 
    644 S.W.2d 443
    , 446 (Tex. 1982).
    3
    Once the movant has established a right to summary judgment, the burden
    shifts to the non-movant, who must then respond to the motion and present any
    issues to the court which should preclude summary judgment. Long v. State Farm
    Fire & Cas. Co., 
    828 S.W.2d 125
    , 127 (Tex. App.–Houston [1st Dist.] 1992, writ
    denied); City of Houston v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    , 678 (Tex.
    1979). If a defendant is able to disprove at least one element of Plaintiff’s cause of
    action, the defendant’s summary judgment should be granted.              Compton v.
    Calabria, 
    811 S.W.2d 945
    , 949 (Tex. App.–Dallas 1991, no writ).
    AK conclusively disproved at least one element of Plaintiff’s negligence
    claim – that of duty – and thus, summary judgment for AK was proper.
    II.   Standard of Review on Appeal - Traditional Motion for Summary
    Judgment
    The standard of review on appeal for the granting by the Trial Court of a
    traditional summary judgment is a review de novo. Valence Operating Co. v.
    Dorsett, 
    164 S.W.3d 656
    , 661 (Tex. 2005). The appellate court reviews the
    evidence in a summary judgment case in a light most favorable to the nonmovant
    appellant. Nixon v. Mr. Prop. Mgmt. Co., 
    690 S.W.2d 546
    , 548–49 (Tex. 1985).
    The appellate court must determine whether the successful movant at the trial level
    carried its burden of showing that there was no genuine issue of material fact and
    that a judgment should have been granted as a matter of law. Lear Siegler, Inc. v.
    4
    Perez, 
    819 S.W.2d 470
    , 471 (Tex. 1991); 
    Nixon, 690 S.W.2d at 548
    . Thus, the
    question on appeal is not whether the summary judgment proof raises fact issues as
    to required elements of the movant's cause or claim, but whether the summary
    judgment proof establishes, as a matter of law, that there is no genuine issue of
    material fact as to one or more elements of the movant's cause or claim. Gibbs v.
    General Motors, 
    450 S.W.2d 827
    , 828 (Tex. 1970).
    III.   The Summary Judgment Evidence did not Raise a Genuine Issue of
    Material Fact Regarding Whether Allen Keller Co. Retained
    Sufficient Control Over the Work Being Performed by Martin
    Suarez When he was Injured Such That Allen Keller Co. is Liable
    to Martin Suarez for Negligence
    A.    Subcontract Agreement - C&B White's Scope of Work
    In November, 2011, C&B entered into a written subcontract agreement with
    AK in connection with the completion of a road construction project. CR 191-201
    (Construction Subcontract); CR 165 (White Depo. 11/4-11, 11/20-12/8). Part of
    that project was on Highway 1623 in Blanco County, Texas. CR 165 (11/4-12/8);
    CR 191-202 (White Depo. Exs. 5 and 6). C&B White’s specific scope of work on
    Highway 1623 was to pour concrete in the “mow strips”—areas under the
    guardrails that are paved to eliminate the need for weed-eating. CR 164 (White
    Depo. 7/14-24). Since the project was on a public roadway, the Texas Department
    of Transportation (“TxDOT”) was the Owner of the project. CR 159 (Affidavit of
    Kory Keller at ¶ 1).
    5
    According to C&B’s subcontract with AK, C&B was obligated to supply its
    own, labor, tools and materials. CR 160 (Affidavit of Kory Keller at ¶3); CR 191-
    192 (Construction Subcontract at ¶1). C&B was also required to procure its own
    commercial general liability insurance, automobile insurance and workers’
    compensation insurance. CR 160 (Affidavit of Kory Keller at ¶3); CR 193 - 194
    (Construction Subcontract at ¶¶ 13(1)-(4)). Further, C&B promised to take
    reasonably necessary safety precautions and follow AK’s safety policy. CR 160
    (Affidavit of Kory Keller at ¶4); CR 195 (Construction Subcontract at ¶20).
    Initially, AK was to provide traffic control, but at some point in time
    between November 2011 and July 2012, C&B agreed to take over traffic control as
    part of its scope of work. CR 159-160 (Affidavit of Kory Keller at ¶ 2); CR 166
    (White Depo. 15/8-18). C&B established a daily fee for the traffic control work
    and billed AK. CR 166 (White Depo. 15/24-16/15). No separate written contract or
    formal addendum was executed for this traffic control work. When a disagreement
    arose over C&B’s bill to AK, AK agreed to throw some materials into the bargain.
    CR 175-176 (White Depo. 52/25-53/24).
    B.    TxDoT Drawings and Plans Controlled C&B's Work
    C&B’s concrete work was guided by construction/engineering drawings
    from TxDOT showing C&B where to place concrete aprons underneath barricades.
    CR 166-167 (White Depo. 16/16-17/7).        Likewise, when C&B began traffic
    6
    control work, C&B received through AK a written traffic control plan prepared by
    TxDOT roadway engineers. CR 159-160 (Affidavit of Kory Keller at ¶2); CR 167
    (White Depo. 17/8-18/6). C&B followed the guidelines from TxDOT in placing
    the traffic control signs and cones. CR 167 (White Depo. 17/8-18/6). Other than an
    AK employee helping to set out traffic control cones on C&B’s first day of traffic
    control work, the TxDOT binder was the source of C&B’s instruction on how to
    set out traffic control signs and cones. CR 169 (White Depo. 25/22-26/22).
    C.    AK Never Controlled C&B's Work to Put Traffic Control Signs
    in the Pickup and Move the Signs to the Locations Where They
    Were to be Placed
    No AK personnel was actively involved in the process of picking up or
    laying down traffic control signs other than to confirm that the signs were taken
    down from the roadway at the end of each day. CR 168 (White Depo. 24/4-13).
    On a day-to-day basis, the C&B crew controlled picking up the signs, putting them
    in a C&B pickup truck and getting them to the location where they needed to be
    placed on the roadway. CR 171 (White Depo. 34/22 -35/2). No one at AK gave the
    C&B crew, including Suarez, oral or written instructions on how to place the signs
    in the bed of the truck. Further, no one at AK instructed the crew, including
    Suarez, where they should ride in the truck while placing traffic control signs on
    the roadway. CR 171 (White Depo. 35/3 - 36/10). AK never controlled how the
    C&B crew placed the traffic control signs into the C&B truck or where C&B crew
    7
    should ride in the truck while putting the signs out. CR 171 (White Depo. 35/3-25;
    36/5-10); CR 215-216 (Castillo Depo. 44/19- 45/3).
    At no time during C&B's work on this project did anyone from AK ask
    anyone from C&B to move a traffic control sign that C&B employees had placed
    on the roadway. CR 224-225, 228 (Castillo Depo. 80/9-12, 81/20-23, 95/7-15).
    Casey White ("White"), President of C&B, had filled out a safety program
    checklist for this job when C&B subcontracted with AK. CR 200 (Construction
    Subcontract at p. 10). White also specifically instructed his crew, including
    Roberto Moreno Castillo ("Castillo"), the crew foreman, that nobody was to ride in
    the back of vehicles or hang on the sides of the truck while doing this work. CR
    172 (White Depo. 37/6-39/9). White made daily inspections of the jobsite and
    never saw any of his crew members riding in the bed of a pickup truck or
    straddling the tailgate of a pickup truck. CR 172 (White Depo. 40/7-21).
    It was a TxDOT mandate that required signs to be taken down every night
    and replaced in the morning. CR 168 (White Depo. 22/14-20). Although the signs
    and cones belonged to AK, C&B provided the vehicle to move the signs and all
    other tools and safety equipment for its crew. CR 160 (Affidavit of Kory Keller at
    ¶¶ 3 and 4).
    A TxDOT inspector was frequently on the job to check C&B’s concrete
    work and traffic control. CR 167 (White Depo. 18/19-25; 19/15-24). On two
    8
    occasions, TxDOT took issue with C&B’s spacing of traffic control cones and
    C&B received calls from TxDOT and/or AK regarding TxDOT's concerns. C&B
    corrected cone spacing to comply with TxDoT instructions. CR 167-168 (White
    Depo. 19/25-20/25; 24/14-25).
    The task of traffic control was not complex and after the first day, the C&B
    crew handled it with no input from AK, other than the two calls regarding the
    spacing of traffic cones (not signs) which originated with TxDOT. CR 169 (White
    Depo. 26/10-27/2).    Neither TxDOT nor AK criticized the manner in which the
    C&B crew loaded or moved the traffic control signs. CR 168-169 (White Depo.
    22/4-13; 25/15-21).
    1.     The Day of the Accident
    In keeping with the TxDOT mandate to put up and take down the traffic
    control signs daily, the C&B crew would put out warning signs at the beginning of
    the work day. CR 208 (Castillo Depo. 16/4-7). At the time of the accident, the
    crew had been putting out and picking up the same three signs every day for about
    a month. CR 208-209 (Castillo Depo. 15/16-22, 19/24- 20/6, 20-22). The C&B
    crew was headed up by C&B employee Castillo and, on the day of the accident, the
    crew included Suarez and three others. CR 208 (Castillo Depo. 14/5-10); CR 211
    (Castillo Depo. 28/2-4).
    9
    On the morning of the accident, the C&B crew picked up the signs from a
    work area and stacked them flat in the bed of Castillo's truck. CR 210 (Castillo
    Depo. 21/20-22/10; 43/7-9). Nobody from AK was at the job site at that time; no
    one from AK gave Suarez or the other C&B crew members the traffic control
    signs, no one from AK saw the C&B crew load the signs into the truck or drive
    away. CR 210 (Castillo Depo. 23/2-3, 9-12); CR 225 (83/4-18). No one from AK
    told the C&B crew, including Suarez, how to place the signs in the truck or where
    to place themselves either in the cab or bed of the truck or on the bumper that
    morning. CR 211 (Castillo Depo. 25/16-24, 26/5-11).
    After the signs were loaded into Castillo's pickup truck, two crew members
    got in the cab with Castillo. CR 211 (Castillo Depo. 26/25 - 27/2). Suarez and
    another crew member decided for the first time to ride straddling (with one foot
    each inside the bed of the truck and one foot on the outside bumper) the tailgate of
    C&B's pickup, which was carrying the road signs. CR 212 (Castillo Depo. 29/14-
    25; 30/18-31/10; 31/21-23). Castillo told the two crew members in the back of the
    truck, including Suarez, to sit in the cab, but they did not want to and refused to do
    so. CR 212 (Castillo Depo. 30/25-31/10). Castillo was in charge of directing
    Suarez and if he saw Suarez doing something he didn’t want him to do, he had the
    authority to tell him to stop. CR 219 (Castillo Depo. 58/19-59/9). Sometimes
    Suarez followed Castillo's instructions; sometimes he did not. 
    Id. 10 Suarez
    knew that Castillo was going to drive the truck down the road to
    place the signs and chose to ride straddling the tailgate, despite Castillo telling him
    to sit down in the bed of the truck. CR 213 (Castillo Depo. 35/6-16). As Castillo
    started driving, however, he could see in his rearview mirror that the two men were
    still riding with one foot in the bed and one foot on the bumper—straddling the
    tailgate. CR 212 (Castillo Depo. 29/9-30/60. This was the first time Castillo had
    ever seen them ride on the truck this way. CR 212 (Castillo Depo. 30/18-23).
    Therefore, nobody from AK could have ever seen the C&B crew, including
    Suarez, ride on the truck this way. CR 225 (Castillo Depo. 82/15-83/1).
    As he drove, Castillo watched the men in his rearview mirror. When they
    were about two hundred feet from where the crew had loaded the signs, he saw a
    gust of wind lift a sign and then saw Suarez and the other man fall off the back of
    the truck. CR 212 (Castillo Depo. 32/15-22). Castillo stopped the truck
    immediately and ran to help Suarez and the other crew member. CR 214 (Castillo
    Depo. 37/20-23). Suarez was unconscious on the roadway, so Castillo called 911
    and his employer, White. CR 214 (Castillo Depo. 38/17-23; 40/22-23). Suarez
    never regained consciousness and died later that same day. CR 223 (Castillo Depo.
    76/1-4).
    11
    D.     AK Owed no Duty to Suarez
    The Trial Court determined that Chapter 95 does not apply to the facts of
    this case. CR 302-303(Letter from Judge Williams). AK was still entitled to a
    summary judgment under Texas common law concerning Plaintiff's negligence
    claims. AK owed no duty to Suarez, because AK neither exercised nor retained
    sufficient control over the manner in which Suarez performed the work which
    caused his death nor had actual knowledge of the danger or condition which
    resulted in Suarez's death.
    1.     General rule - Since C&B was an independent contractor,
    AK had no duty to make sure that C&B safely performed
    its work
    In general, a premises owner or general contractor has no duty to ensure that
    an independent contractor safely performs his work. Hoechst-Celanese v. Mendez,
    
    967 S.W.2d 354
    , 356 (Tex. 1998).       An independent contractor is in a better
    position than a premises owner or general contractor to inspect, eliminate or warn
    of danger arising from the independent contractor’s work. Marathan Corp. v.
    Pitzner, 
    55 S.W.3d 114
    , 131 (Tex. App—Corpus Christi 2001), rev’d on other
    grounds, 
    106 S.W.3d 724
    (Tex. 2003). A general contractor can reasonably expect
    an independent contractor to instruct its own employees how to do work safely.
    General Electric v. Moritz, 
    257 S.W.3d 211
    , 215-216 (Tex. 2008).
    12
    2.     Exception to general rule
    A limited exception to this general rule exists when a general contractor: (1)
    retains a right of control over the manner in which work is performed, other than
    the right to order work to stop and start or to inspect progress or receive reports,
    and (2) has actual knowledge of the danger or condition resulting in the personal
    injury, death or property damage and failed to adequately warn. Dow Chemical
    Co. v. Bright, 
    89 S.W.3d 602
    , 606; 609 (Tex. 2002).
    a.    AK had no actual knowledge of the danger or
    condition that led to Suarez's death
    First, and most importantly, the summary judgment evidence disproves that
    AK had actual knowledge of the danger or condition that led to Suarez's accident
    and caused his death. AK’s summary judgment evidence is clear, positive, direct
    and uncontroverted by Plaintiffs: (a) two crew members, including Suarez, had
    never ridden out on the tailgate before; (b) nobody from AK was present to see
    Suarez ride out on the tailgate that morning; and (c) Suarez had been told by his
    employer, Casey White, not to ride in the bed or on the tailgate of White’s trucks.
    It was Suarez's impromptu decision to ride on the tailgate of the C&B truck that
    proximately caused his death. The summary judgment evidence conclusively
    disproves that AK actually knew about the condition which caused Suarez's death.
    AK was properly entitled to summary judgment on any claim of liability for it's
    independent contractor’s actions.
    13
    b.    AK did not exercise sufficient control over Suarez's
    work when he was injured
    The summary judgment evidence disproved that AK had or exercised any
    control over the manner in which C&B was transporting its crew and signs for
    traffic control. Again, the causal connection must be tight: the control must relate
    directly to the injury caused by the supposed negligence. Texas law is clear that a
    nexus must be shown between the retained control and the specific condition or
    activity that caused the injury. Shell Oil v. Khan, 
    138 S.W.3d 288
    , 294 (Tex.
    2004). It is not enough to show that a defendant controlled one aspect of the
    independent contractor’s activities if the injury arose from another. 
    Id. at 294.
    Lumping activities together under an umbrella does not work: “it is not
    enough to show that an oil company controlled some security activities if the ones
    it controlled had nothing to do” with the cause of the injury. Shell Oil Co. v. Khan,
    
    138 S.W.3d 288
    , 294 (Tex. 2004). Likewise, it is not enough to show that AK
    controlled some traffic control activities if the ones it controlled had nothing to do
    with the injury—and that is precisely the case here. Summary judgment is proper
    because AK has disproven supervisory control over the activity that caused
    Suarez'ss injury.
    Plaintiffs’ summary judgment evidence missed the mark and failed to raise a
    fact issue linking AK’s alleged control and the activity that actually caused
    Suarez's injury and death. The scope of duty is limited to the scope of supervisory
    14
    control. Hoeschst-Celanese Corp. v. Mendez, 
    967 S.W.2d 354
    , 357 (Tex. 1998).
    The cause of Suarez's unfortunate accident and death was his decision to ride
    straddling the tailgate of his employer’s truck as the crew moved signs. The only
    evidence of supervisory control by AK is that it enforced TxDOT rules regarding
    spacing of traffic cones, on limited occasions, days prior to Suarez's accident.
    Spacing of traffic cones had nothing to do with Suarez's injury which involved the
    transportation of traffic control signs.
    The only summary judgment evidence offered by Plaintiff on this point is
    that AK “omitted any information about how signs were to be secured or moved
    before they were placed.” CR 235. Put simply, the only evidence of control
    Plaintiff can offer with respect to loading and moving signs is a complete lack of
    control by AK. This fails as a matter of law to constitute evidence of control.
    AK’s summary judgment evidence conclusively proved that AK was never
    involved in any way with the manner in which the C&B White crew moved the
    traffic control signs around and Plaintiff did not introduce any summary judgment
    evidence to the contrary. Thus, the summary judgment evidence disproved the
    element of duty for Plaintiff's negligence claim.
    IV.   Appellant's Argument Based on Chapter 95 of the Texas Civil Practice
    and Remedies Code is Moot
    The entirety of Appellant's argument that related to Chapter 95 of the Texas
    Civil Practice and Remedies Code concerning whether or not Appellee is an owner
    15
    or someone else which is covered by the statute (found on pages 14-18 of
    Appellant's Brief) must be ignored by this Court because on May 28, 2014, the
    Trial Court determined that Chapter 95 does not apply to the facts of this case and
    specifically stated that it was not granting the summary judgment based on Chapter
    95, but on other grounds included in the motion for summary judgment. CR 302-
    303.
    V.     Excerpts from the Texas Manual on Uniform Traffic Control Devices
    at Tab 3 of the Appendix to Appellant's Brief are not Part of the
    Summary Judgment Record and Can't be Considered in this Appeal
    Appellant did not attach the excerpts from the Texas Manual on Uniform
    Traffic Control Devices found at tab 3 of the Appendix to her Brief to her
    summary judgment papers and they were not part of the summary judgment record
    before the Trial Court. They are not part of the Clerk's Record or the Supplemental
    Clerk's Record for this appeal. Therefore, they cannot be considered by this court.
    K-Six Television, Inc. v. Santiago, 
    75 S.W.3d 91
    , 96–97 (Tex. App.—San Antonio
    2002, no pet.)(documents attached to briefs that are not part of the summary
    judgment record cannot be considered on appeal). Further, these excerpts are
    irrelevant as they have nothing to do with how Suarez loaded the traffic control
    signs into the back of a pick up and rode straddling the tailgate of the pickup down
    the road to transport these signs to the places where they needed to be placed on
    16
    the roadway; instead, they govern the size, placement, design and maintenance of
    traffic control signs.
    VI.   Plaintiff failed to Timely Perfect This Appeal
    Appellant failed to timely perfect this appeal. Her Motion for New Trial was
    due to be filed on July 9, 2014 (30 days after the Summary Judgment was signed
    on June 9, 2014), as was her Notice of Appeal. The Motion for New Trial was
    untimely filed on July 10, 2014, and the Notice of Appeal was untimely filed on
    July 11, 2014.
    CONCLUSION AND PRAYER
    In light of the foregoing, Allen Keller Co. respectfully prays that this
    Appellate Court affirm the judgment of the Trial Court and grant all other relief to
    which Allen Keller Co. is entitled.
    17
    Respectfully submitted,
    LUCERO | WOLLAM, P.L.L.C.
    /s/ Erik Wollam
    ____________________________
    ERIK R. WOLLAM
    State Bar No. 00788705
    ELLEN GERSON TAGTMEIER
    State Bar No. 07827700
    13590 Ranch Road 12
    Wimberley, Texas 78676
    Telephone: (512) 485-3500
    Facsimile: (512) 485-3501
    ewollam@lucerowollam.com
    etagtmeier@lucerowollam.com
    ATTORNEYS FOR APPELLEE
    ALLEN KELLER CO. I LLC
    CERTIFICATE OF COMPLIANCE
    Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned hereby certifies that
    according to the word count function of the computer program used to generate the
    document, the portions of the Appellee's Brief subject to the rule contain 4,049
    words total and that the text thereof is in 14 point Times New Roman font.
    /s/ Erik Wollam
    ______________________________
    Erik R. Wollam
    18
    CERTIFICATE OF SERVICE
    I certify that a true and correct copy of Appellee's Brief was served on the
    following counsel by electronic filing and email on the 30th day of December,
    2014:
    Michael G. Sawicki
    Sawicki Law
    4040 N. Central Expressway, Ste. 850
    Dallas, Texas 75204
    Charles E. Soechting (local counsel)
    The Soechting Law Firm
    3331 Ranch Road 12, Suite 107
    San Marcos, Texas 78666
    /s/ Erik Wollam
    ______________________________
    Erik R. Wollam
    19
    APPENDIX
    A.   Summary Judgment Order signed by the Trial Court on June 9, 2014
    (CR 304 – 307).
    B.   Letter dated May 28, 2014, from the Trial Court (CR 302 – 303)
    C.   Pages cited in this Brief from the Deposition of Casey White
    (President of C&B White, Suarez’s employer)
    D.   Pages cited in this Brief from the Deposition of Robert Moreno
    Castillo (Crew leader of the C&B White crew on which Suarez
    worked)
    20