Texas Mutual Insurance Company v. Clarence Dailey Electric, Inc ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00506-CV
TEXAS MUTUAL INSURANCE CO.,
Appellant
v.
CLARENCE
CLARENCE DAILEY ELECTRIC, INC.,
Appellee
From the 78th District Court, Wichita County, Texas
Trial Court No. 174,534-B-2
Honorable W. Bernard Fudge, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: August 30, 2013
AFFIRMED
Texas Mutual Insurance Company appeals the trial court’s summary judgment in favor of
Clarence Dailey Electric, Inc. On appeal, Texas Mutual argues the trial court erred in granting
Dailey Electric’s motion for summary judgment because it raised fact issues as to Dailey Electric’s
common-law duty, breach of that duty, and proximate cause of the damages paid by Texas Mutual
pursuant to a workers’ compensation policy. We affirm the trial court’s judgment.
04-12-00506-CV
BACKGROUND
This case arises out of a construction site accident at a gymnasium remodeling project at
Cunningham Elementary in Wichita Falls, Texas. Electra Construction Company, Inc., the general
contractor, hired Dailey Electric as the electrical subcontractor for the project. Additional
subcontractors included Luz Lerma Construction, Inc. and Double Diamond Contractors, Inc.
(concrete) and R.L. Tate Painting (painting).
As part of the remodeling phase, Electra’s employees created ground holes, approximately
sixteen inches in diameter, for the insertion of volleyball pole sleeves. Based on safety concerns,
the holes were filled with dirt and kept covered.
To perform its electrical work inside the gymnasium, Dailey Electric used one of its
motorized scissor-lifts. The lift was left inside the gymnasium at all times. Other subcontractors
were not allowed to use the lift without Dailey Electric’s authorization.
On a day when Dailey Electric was not working at the project, Cam E. Beasley, a Tate
Painting employee, used the lift to paint vents on the gymnasium ceiling. Beasley testified that
“the keys were left in the scissor-lift and that the lift itself was in an operable position for all to use
on the jobsite.” All parties agree the scissor-lift was not owned by either Beasley or his employer,
and that Dailey Electric did not give Beasley express permission to operate the scissor-lift on the
day in question or at any other time during work at the gymnasium project. It is also uncontested
that no employees from Dailey Electric were on the premises at the time and that Beasley acted
without Dailey Electric’s permission or knowledge.
Unfortunately, shortly before Beasley’s accident, the holes in question were uncovered by
an Electra employee for cleaning in preparation for delivery of volleyball and basketball
equipment. While using the scissor-lift, Beasley maneuvered the lift so that one of its wheels
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accidently dropped into an uncovered hole. The lift tilted, fell over, and Beasley was seriously
injured.
PROCEDURAL HISTORY
Beasley sued Electra, Luz Lerma, Double Diamond, and Dailey Electric. His petition, as
to Dailey Electric, alleged
that the scissor-lift being operated by Plaintiff, Cam E. Beasley, was owned by
Clarence Dailey, Incorporated. Plaintiffs have reason to believe, and therefore
allege, Clarence Dailey Electric, Incorporated failed to properly secure and/or
instruct other subcontractors including Plaintiff, Cam E. Beasley, concerning the
use of the scissor-lift. Plaintiffs will show that the keys were left in the scissor-lift
and that the lift itself was in an operable position for all to use on the jobsite.
Texas Mutual, Tate Painting’s workers’ compensation carrier, intervened in the lawsuit to
protect its subrogation interests. In its petition in intervention, Texas Mutual adopted “all
allegations of negligence against the Defendants in Plaintiff’s Original Petition (and all
amendments and supplements to such pleading) on file herein.” Texas Mutual further asserted
Beasley’s injuries were “proximately caused by the negligence of the Defendants.”
Dailey Electric filed a no-evidence and traditional motion for summary judgment regarding
all claims asserted by Beasley. Beasley did not file a response to Dailey Electric’s motion, but
instead notified the court he was not contesting the summary judgment. Texas Mutual immediately
filed a response to protect its subrogation interests.
The trial court granted Dailey Electric’s motion for summary judgment “in all respects”
finding, “There is no factual or legal basis for the submission of Clarence Dailey Electric, Inc.’s
negligence to a jury in this cause and the Court finds that no act or omission of Clarence Dailey
Electric, Inc. proximately caused the Plaintiff’s damages.” The court then severed all claims
asserted against Dailey Electric and ordered the summary judgment final and appealable.
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On appeal, Texas Mutual contends Dailey Electric’s no-evidence motion for summary
judgment on Beasley’s negligence claim is legally insufficient because Dailey Electric’s
arguments are conclusory and erroneously assumes Beasley’s use of the scissor-lift was
unauthorized. Texas Mutual alternatively asserts that it raised fact issues as to Dailey Electric’s
duty to secure its scissor-lift, its duty to warn others against its use, and its breach of that duty.
Texas Mutual also argues it raised fact issues regarding the proximate cause of Beasley’s injuries.
STANDARD OF REVIEW
We review the trial court’s summary judgment de novo. Vela v. GRC Land Holdings, Ltd.,
383 S.W.3d 248, 250 (Tex. App.—San Antonio 2012, no pet.) (mem. op.); Wyckoff v. George C.
Fuller Contracting Co., 357 S.W.3d 157, 162 (Tex. App.—Dallas 2011, no pet.). The movant in
a traditional summary judgment has the burden to show “there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.” See TEX. R. CIV. P.
166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Romo v. Tex. Dep’t of
Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio 2001, no pet.). In our review of a
traditional motion for summary judgment, we “must consider all the evidence in the light most
favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and
resolving any doubts against the motion.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 756 (Tex. 2007) (per curiam); accord Romo, 48 S.W.3d at 269.
In reviewing the granting of a no-evidence summary judgment, we apply the same legal
sufficiency standard as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 750–51 (Tex. 2003). The nonmovant in a no-evidence motion for summary
judgment has the burden to raise a genuine issue of material fact by producing more than a scintilla
of probative evidence. See id. at 751; Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—
San Antonio 1998, pet. denied). If the nonmovant fails to meet its burden, no-evidence summary
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judgment is proper. See King Ranch, Inc., 118 S.W.3d at 751; Moore, 981 S.W.2d at 269. “Less
than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a
mere surmise or suspicion’ of a fact.” King Ranch, Inc., 118 S.W.3d at 751 (quoting Kindred v.
Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); Moore, 981 S.W.2d at 269. “When the evidence
offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of
its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred,
650 S.W.2d at 63; accord Moore, 981 S.W.2d at 269. “[T]he evidence must be viewed in the light
most favorable to the non-movant.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.
2004); accord Moore, 981 S.W.2d at 269.
“When the motion for summary judgment present[s] both no-evidence and traditional
grounds, we first review the propriety of the summary judgment under the no-evidence standards
of rule 166a(i).” Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007,
pet. denied); see Ridgway, 135 S.W.3d at 600. If the nonmovant fails to meet its burden under the
no-evidence summary judgment, we need not analyze the traditional summary judgment. See
Ridgway, 135 S.W.3d at 600; Kalyanaram, 230 S.W.3d at 925.
Rule 166a(i) requires a motion for summary judgment to “state the elements as to which
there is no evidence.” TEX. R. CIV. P. 166a(i); see Landers v. State Farm Lloyds, 257 S.W.3d 740,
746 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (op. on reh’g.); Roventini v. Ocular Sciences,
Inc., 111 S.W.3d 719, 722–24 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Additionally, the
motion “is legally insufficient as a matter of law if it is not specific in challenging a particular
element or is conclusory.” Sanchez v. Mulvaney, 274 S.W.3d 708, 710 (Tex. App.—San Antonio
2008, no pet.); accord Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.—San Antonio
2000, pet. denied); see also Baker v. Gregg Cnty., 33 S.W.3d 72, 77 (Tex. App.—Texarkana 2000,
pet. dism’d); Abraham v. Ryland Mortg. Co., 995 S.W.2d 890, 892 (Tex. App.—El Paso 1999, no
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pet.). When the motion gives notice of the matters on which a nonmovant must produce some
evidence, the motion is legally sufficient. See Dodd v. City of Beverly Hills, 78 S.W.3d 509, 513
(Tex. App.—Waco 2002, pet. denied). “[Rule 166a(i)] does not, however, require that the motion
specifically attack the ‘evidentiary components that may prove an element of the cause of action.’”
Dominguez v. Payne, 112 S.W.3d 866, 868 (Tex. App.—Corpus Christi 2003, no pet.) (quoting In
re Mohawk Rubber Co., 982 S.W.2d 494, 497–98 (Tex. App.—Texarkana 1998, orig.
proceeding)). A party may challenge a legally insufficient no-evidence motion for summary
judgment for the first time on appeal. Callaghan Ranch, 53 S.W.3d at 3.
LEGAL SUFFICIENCY OF DAILEY ELECTRIC’S NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT
In its first point of error, Texas Mutual asserts that Dailey Electric’s no-evidence motion
for summary judgment was legally insufficient because it contained only conclusory arguments
and erroneously assumed that Beasley’s use of the lift was unauthorized. Texas Mutual points to
the following excerpt from Dailey Electric’s no-evidence motion for summary judgment as legally
insufficient:
[Beasley] has produced no evidence that Dailey owed [Beasley] a legal duty to
prevent [Beasley]’s unauthorized use of the scissor lift, no evidence Dailey had a
duty to train or instruct [Beasley] on use of the scissor lift, no evidence that Dailey
breached any duty owed to [Beasley], and no evidence that any breach of duty by
Dailey proximately caused [Beasley]’s damages.
We note this language tracks Beasley’s petition adopted by Texas Mutual. Moreover, in
addition to this general statement, Dailey Electric’s motion goes on to specifically challenge each
negligence element for which it contends there was no evidence. See Sanchez, 274 S.W.3d at 710;
Baker, 33 S.W.3d at 77; Abraham, 995 S.W.2d at 892.
Viewing Dailey Electric’s no-evidence motion de novo and in the light most favorable to
Texas Mutual, see Ridgway, 135 S.W.3d at 601; Moore, 981 S.W.2d at 269, we nevertheless
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conclude that the language that Texas Mutual complains of is not the type of general or conclusory
assertion that is legally insufficient, see Killam, 53 S.W.3d at 3; Abraham, 995 S.W.2d at 892; see
also Dodd, 78 S.W.3d at 513. Dailey Electric’s motion states the essential elements that are
lacking (i.e., duty, breach, and causation) as required by Texas Rule of Civil Procedure 166a(i),
and thus gave Texas Mutual sufficient notice as to what elements of the negligence claim on which
Texas Mutual must produce some evidence. See TEX. R. CIV. P. 166a(i); Baker, 33 S.W.3d at 77.
Therefore, we conclude that Dailey Electric’s no-evidence motion was legally sufficient; we
overrule Texas Mutual’s first issue.
Because we conclude the summary judgment motion was sufficient, we next address
whether the evidence was sufficient to support the trial court’s judgment with regard to negligence
and premises liability.
NEGLIGENCE AND PREMISES LIABILITY
The parties disagree as to the characterization of Beasley’s claims. Texas Mutual contends
this case should be analyzed under a general negligence theory, rather than a premises liability
theory, and asserts that the evidence raised a fact issue on each element of the negligence claim.
Alternatively, it argues that if this court views Beasley’s allegations as including a cause of action
for premises liability, fact issues still exist. Dailey Electric, on the other hand, argues that this case
“should be focused upon the physical condition of the floor and the associated responsibilities with
the alleged defect in the gymnasium floor,” and that Beasley and Texas Mutual “were attempting
to avoid clear disposition of the appropriate cause of action (premises liability) through artful
pleadings.”
Negligence and premises liability involve closely related, but distinct, duty analyses.
Because Dailey Electric moved for summary judgment on the issues of negligence and premises
liability, we address each issue separately.
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A. Negligence
Dailey Electric’s no-evidence motion asserted Beasley failed to produce evidence that (1)
Dailey Electric owed Beasley a legal duty, or (2) any alleged breach proximately caused Beasley’s
damages. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001) (reciting the
elements of negligence as “a legal duty owed by the defendant to the plaintiff, a breach of that
duty, and damages proximately caused by that breach”); accord Doe v. Boys Clubs of Greater
Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995); Spears v. Coffee, 153 S.W.3d 103, 106 (Tex. App.—
San Antonio 2004, no pet.). To survive Dailey Electric’s no-evidence motion for summary
judgment, Texas Mutual had to produce more than a scintilla of evidence raising a genuine issue
of material fact on each challenged element of negligence. See King Ranch, Inc., 118 S.W.3d at
750–51; Moore, 981 S.W.2d at 269.
Texas Mutual’s arguments focus primarily on proximate cause. “Proximate cause cannot
be established by mere guess or conjecture, but rather must be proved by evidence of probative
force.” McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980); accord Escamilla
v. Garcia, 653 S.W.2d 58, 62 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). Proximate cause
consists of two elements: (1) foreseeability and (2) cause in fact. See Nixon, 690 S.W.2d at 549;
Spears, 153 S.W.3d at 106. We first address cause in fact.
1. Cause In Fact
Texas Mutual argues that cause in fact exists because Beasley would not have been able to
use the lift if it had been properly secured and, consequently, would not have been injured when
the lift fell over. “Cause in fact denotes that the negligent act or omission was a substantial factor
in bringing about the injury and without which no harm would have been incurred.” Nixon, 690
S.W.2d at 549; accord Spears, 153 S.W.3d at 106. “More than one act may be the proximate cause
of the same injury.” Lee Lewis Constr., 70 S.W.3d at 784.
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Cause in fact is not shown if the defendant’s negligence did no more than furnish a
condition which made the injury possible. . . . The evidence must go further, and
show that such negligence[, if any,] was the proximate, and not the remote, cause
of the resulting injuries. . . . [and] justify the conclusion that such injury was the
natural and probable result thereof. In other words, even if the injury would not
have happened but for the defendant’s conduct, the connection between the
defendant and the plaintiff’s injuries simply may be too attenuated to constitute
legal cause.
Doe, 907 S.W.2d at 477 (third and fourth alterations in original) (emphasis added) (citations and
internal quotation marks omitted). In other words, the defendant’s alleged negligent conduct may
be “too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing
about the harm.” IHS Cedars Treatment Ctr. of DeSoto, Tex. v. Mason, 143 S.W.3d 794, 799 (Tex.
2004); see also Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991) (determining that an
allegedly malfunctioning flashing arrow sign was not a cause in fact of the injuries sustained by a
state highway employee who had disembarked from his truck towing the sign and was hit by a van
whose driver had fallen asleep); Bell v. Campbell, 434 S.W.2d 117, 118–19 (Tex. 1968) (deciding
that a driver’s actions in a first accident were not a cause in fact of the plaintiff’s injuries he
sustained when hit by a different car while he was removing roadway debris from the first
accident).
2. Remoteness
Here, the uncontroverted evidence shows the scissor-lift did not malfunction. Texas
Mutual argues that but for Dailey Electric’s negligent act of leaving the keys in the scissor-lift,
Beasley’s injuries would not have occurred. Texas Mutual describes the “condition that caused
the injury” as an unsecured scissor-lift. Yet, the sole defect alleged in the petition is the condition
of the premises, the sixteen-inch hole, not any malfunction of the scissor-lift. The evidence
supports the allegation that the condition that caused the injury was the uncovered hole. There is
no evidence that Beasley was injured while using the scissor-lift until he drove it into the uncovered
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hole. Leaving the keys in the ignition was too remotely connected to the injuries Beasley sustained
after driving the lift into a hole in the gym floor to be the cause in fact of his injuries. See IHS
Cedars, 143 S.W.3d at 799; Doe, 907 S.W.2d at 477; Lear Siegler, 819 S.W.2d at 472; Bell, 434
S.W.2d at 118–19. Because Dailey Electric conclusively negated the cause in fact component of
proximate cause, we do not address foreseeability. We conclude that the trial court’s grant of
summary judgment in favor of Dailey Electric on Beasley’s negligence claim was proper.
B. Premises Liability
In Dailey Electric’s motion for summary judgment, it contended that Beasley produced no
evidence on several essential elements of his premises liability claim.
Dailey Electric asserted, inter alia, that Beasley produced no evidence that it owned or
controlled the premises in question, that Dailey Electric breached any duty it may have had to
Beasley, or that any breach was the proximate cause of Beasley’s injuries and thus Daily Electric
was entitled to judgment on its no-evidence motion. See Corbin v. Safeway Stores, Inc., 648
S.W.2d 292, 295 (Tex. 1983) (premises liability claim elements); Price Drilling Co. v. Zertuche,
147 S.W.3d 483, 486–87 (Tex. App.—San Antonio 2004, no pet.) (control of premises). Texas
Mutual’s response acknowledges that Beasley “alleges a cause of action against Dailey Electric
for Premises Liability.” However, Texas Mutual’s response failed to produce any summary
judgment proof on the challenged elements of premises liability including ownership and control.
See Price Drilling, 147 S.W.3d at 486–87.
Because Texas Mutual failed to produce summary judgment proof that raised a genuine
issue of material fact on one or more of the challenged essential elements of Beasley’s premises
liability claim, Dailey Electric was entitled to judgment on its no-evidence motion. See King
Ranch, Inc., 118 S.W.3d at 751; Moore, 981 S.W.2d at 269; see also TEX. R. CIV. P. 166a(i).
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CONCLUSION
After reviewing the evidence de novo, we conclude that Texas Mutual failed to meet its
burden to raise a genuine issue of material fact on at least one element of Beasley’s negligence
cause of action—the cause in fact component of proximate cause. Therefore, the trial court did
not err in granting Dailey Electric’s no-evidence summary judgment motion as to negligence.
Further, because Texas Mutual’s response to Dailey Electric’s no-evidence motion failed to raise
a genuine issue of material fact on any challenged essential element of premises liability, the trial
court’s no-evidence summary judgment as to premises liability was proper.
Because Texas Mutual failed to meet its no-evidence burden, we need not analyze Dailey
Electric’s motion for traditional summary judgment. See Ridgway, 135 S.W.3d at 600. The trial
court’s judgment is affirmed.
Patricia O. Alvarez, Justice
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