Stacey D. Gailey v. Mermaid Pools of El Paso, LLC, and Robert Purdue & Co., Inc., D/B/A Mermaid Pools ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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STACEY D. GAILEY, No. 08-08-00255-CV
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Appellant, Appeal from
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v. 34th District Court
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MERMAID POOLS OF EL PASO, LLC, of El Paso County, Texas
and ROBERT PURDUE & CO., INC. §
D/B/A MERMAID POOLS, (TC # 2007-008)
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Appellees.
OPINION
Stacey D. Gailey appeals from a summary judgment granted in favor of Mermaid Pools of
El Paso, LLC and Robert Pursue & Company, Inc. d/b/a Mermaid Pools (Mermaid Pools). For the
reasons that follow, we affirm.
FACTUAL SUMMARY
Gailey hired Mermaid Pools to build a swimming pool in her backyard. The construction
began on July 30, 2005 and was completed around August 30. Mermaid installed a skimmer in the
deck surrounding the pool to filter the water and skim leaves from the surface. During construction,
the skimmer is left uncovered and it is covered by a lid only when construction is complete. On
August 25, Mermaid’s employees left for the day at approximately 5:30 p.m. and told Gailey she
could go into the backyard to view the pool twenty-four hours later. The following evening at
around 10 p.m., Gailey went into the backyard with her family and was injured when she stepped
into the uncovered skimmer. Gailey filed suit against Mermaid, alleging negligence related to a
premises condition. Mermaid filed a motion for summary judgment asserting there was no evidence
it owed Gailey a duty to warn her of the open and obvious condition on her property and no evidence
that it had breached any duty. The trial court granted the motion and entered a take nothing
judgment in favor of Mermaid Pools.
DUTY
In Issue One, Gailey complains that Mermaid owed her a duty to make the dangerous
condition safe or to warn her of the dangerous condition it had created. Mermaid counters that it
owed Gailey no duty because she was the owner of the premises. Because the duty issue is
dispositive of the appeal, it is unnecessary to address Gailey’s other arguments.
We review the summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145
S.W.3d 150, 156 (Tex. 2004). A no-evidence summary judgment is essentially a pretrial directed
verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary
judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 750-51 (Tex. 2003). Accordingly, we review the evidence in the light most favorable to the
non-movant, disregarding all contrary evidence and inferences. Id. at 751. A no evidence point will
be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact,
(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact. Id. Thus, a no-evidence summary judgment
is improperly granted if the respondent brings forth more than a scintilla of probative evidence to
raise a genuine issue of material fact. TEX .R.CIV .P. 166a(I); Id.
Duty is the threshold inquiry in a negligence case, including one of premises liability. Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Almanza v. Navar, 225 S.W.3d 14, 20
(Tex.App.--El Paso 2005, no pet.). In a premises liability case, the duty owed to the plaintiff
depends on the plaintiff’s status on the premises as an invitee, licensee, or trespasser at the time of
the incident. Almanza, 225 S.W.3d at 21. Duty requires a legal analysis balancing a number of
factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing
the burden on the defendant. General Electric Co. v. Moritz, 257 S.W.3d 211, 218 (Tex. 2008). The
existence of a duty is a question of law for the court to decide based on the facts of the case. Moritz,
257 S.W.3d at 217; Almanza, 225 S.W.3d at 21.
As a general rule, a landowner or one who is otherwise in control of the premises must use
reasonable care to make the premises safe for licensees and invitees. Clayton W. Williams, Jr., Inc.,
v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); Lefmark Management Co. v. Old, 946 S.W.2d 52, 53
(Tex. 1997); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). This duty includes warning
invitees and licensees of known hidden dangers that present an unreasonable risk of harm. Lefmark,
946 S.W.2d at 53. An owner or occupier of land in control of the premises may be liable for two
types of negligence in failing to keep the premises safe: that arising from an activity on the premises,
and that arising from a premises defect. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 527;
Redinger, 689 S.W.2d at 417. In this case, Gailey contends she was injured by the skimmer left
uncovered during construction, not as a contemporaneous result of Mermaid’s negligence. Clayton
W. Williams, Jr., Inc., 952 S.W.2d at 527. Consequently, this is a premises defect case, not a
negligent activity case. Id., citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)(holding
contemporaneous result of the activity itself). When such a duty is owed, the premises owner or
occupier must either adequately warn of the dangerous condition or make the condition reasonably
safe. Clayton W. Williams, Jr., Inc., 952 S.W.2d at 527.
Gailey, as the owner of the premises, is not an invitee, licensee, or trespasser. She was in
control of the premises at the time of the injury. Yet she seeks to impose a duty on the independent
contractor hired to construct her pool and deck to warn her about an alleged premises defect created
during the ongoing construction. Gailey has not directed us to any authority in where such a duty
has been imposed on an independent contractor and we are aware of none. We conclude that
Mermaid did not owe a duty to warn Gailey about the uncovered skimmer or to cover it prior to
completion of construction. The trial court properly granted summary judgment in favor of Mermaid
on this ground. We overrule the sole issue for review and affirm the summary judgment.
June 23, 2010
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.), sitting by assignment