Michael Diez v. Alaska Structures, Inc. , 455 S.W.3d 737 ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MICHAEL DIEZ, §
No. 08-13-00144-CV
Appellant, §
Appeal from the
v. §
41st District Court
ALASKA STRUCTURES, INC., §
of El Paso County, Texas
Appellee. §
(TC#2011-2963)
§
OPINION
Michael Diez, Appellant, appeals the trial court’s summary judgment entered in favor of
Alaska Structures, Inc. (“Alaska”), Appellee. We affirm.
BACKGROUND
Diez was an employee of Merry Mechanization, a Florida-based company which writes
and supports metal fabrication computer software. Alaska operated a high-tech fabric shelter
systems manufacturing facility at a premises located at 10826 Pellicano in El Paso, Texas. The
premises were owned by Roller King, Inc. For the sum of $7,500 Merry Mechanization agreed to
provide software training to Alaska’s employees at the premises.
Diez travelled to El Paso on behalf of Merry Mechanization to provide one-week onsite
computer training to an Alaska employee, who Diez believes was named “Joel.”1 On the first day
of training, October 5, 2009, Diez stepped out of “Joel’s” office, took several steps onto a white
cement floor, and tripped on a white step. Diez does not remember encountering any steps as he
entered the facility or walking up stairs.
Diez filed suit against Alaska and Roller King, Inc. alleging negligence and premises
liability. Alaska filed a hybrid motion for summary judgment, and Roller King, Inc. adopted
Alaska’s summary judgment motion. After Diez replied to the motion, Alaska cross-claimed
against Roller King for contribution, indemnity, and declaratory relief. The trial court heard the
summary judgment motion and subsequently granted summary judgment in favor of Alaska and
Roller King.
Diez appealed the summary judgment against both Alaska and Roller King. On joint
motion filed by Diez and Roller King, Diez’ appeal against Roller King, Inc. has been dismissed
with prejudice.
DISCUSSION
Diez presents four issues for our consideration. In Issue One, Diez complains that the trial
court’s order setting the summary judgment hearing for March 21, 2013, was ambiguous because
it failed to make “specific reference to any particular movant’s motion for summary judgment,”
and failed to provide Diez with proper notice of which summary judgment motion the trial court
would hear. Diez alleges that the trial court’s order setting hearing effectively deprived him of his
rights to due process and fair notice as he was required to guess whether the trial court was
conducting a hearing on Alaska’s and/or co-defendant Roller King’s motion for summary
judgment. He therefore seeks reversal and remand of the case to the trial court. Diez does not
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Alaska’s production manager, Manuel Ramos, states in his affidavit that Diez trained him.
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cite to any statute or case to support his proposition. Alaska responds that Diez has failed to
preserve Issue One because he did not raise this objection to the trial court. We agree.
We may not address issues that Diez has not properly presented to the trial court. See TEX.
R. APP. P. 33.1(a)(1), (2)(to preserve a complaint for appellate review, the record must show that a
party complained to the trial court through a timely request, objection, or motion with sufficient
specificity to make the trial court aware of the complaint, and the trial court made a ruling on the
complaint). Riyad Bank v. Al Gailani, 61 S.W.3d 353, 356 n.2 (Tex. 2001). Even constitutional
errors, like Diez’ complaint, are waived if not raised first in the trial court. Alford v. Thornburg,
113 S.W.3d 575, 581 (Tex.App. – Texarkana 2003, no pet.); Birdo v. Ament, 814 S.W.2d 808, 811
(Tex.App. – Waco 1991, writ denied).
Our review of the record has failed to uncover any instance in which Diez specifically
presented to the trial court through a timely request, objection, or motion regarding the ambiguity
of the trial setting. Diez’ only reference of the ambiguity to the trial court belies his assertion on
appeal. In a post-judgment Motion for Clarification, Diez states, “[n]otice setting hearing for
March 21, 2013, before this Court referenced that the hearing would be on Defendant ALASKA
STRUCTURES, INC.’s Traditional and No-Evidence Motions for Summary Judgment, however,
it was silent as to Defendant ROLLER KING, INC.’s motion.” Clearly, Diez was aware, by his
own admission, of the hearing setting as to Alaska’s motions for summary judgment.
Because Diez failed to provide the trial court an opportunity to consider and rule upon his
complaint, Issue One has not been preserved for appellate review. We overrule Issue One.
In Issues Two, Three, and Four, Diez complains that the trial court erred in granting
summary judgment in favor of Alaska on both traditional and no-evidence grounds.
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Standard of Review
Hybrid Summary Judgment Motion
When a party files a hybrid summary judgment motion on both no-evidence and traditional
grounds, we first review the trial court’s judgment under the no-evidence standard of review.
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant failed to
produce more than a scintilla of evidence under the standards of Rule 166a(i), then there is no need
to analyze whether the movant’s summary judgment proof satisfied the less stringent burden set
forth for traditional summary judgment under Rule 166a(c). See TEX. R. CIV. P. 166a(c),(d), (i);
East Hill Marine, Inc. v. Rinker Boat Co., Inc., 229 S.W.3d 813, 816 (Tex.App. – Fort Worth 2007,
pet. denied).
No-Evidence Summary Judgment Motion
A no-evidence motion for summary judgment under Rule 166a(i) is essentially a motion
for a pretrial directed verdict. TEX. R. CIV. P. 166a(i); Timpte Industries, Inc. v. Gish, 286 S.W.3d
306, 310 (Tex. 2009). After an adequate time for discovery, a party without the burden of proof
may, without presenting evidence, seek summary judgment on the ground that there is no evidence
to support one or more essential elements of the non-movant’s claim or defense. TEX. R. CIV. P.
166a(i). The motion must specifically state the elements for which there is no evidence. TEX. R.
CIV. P. 166a(i); Timpte Industries, Inc., 286 S.W.3d at 310. The Supreme Court has explained
that Texas Rule of Civil Procedure 166a(i) does not permit conclusory or general no-evidence
challenges. Timpte Industries, Inc., 286 S.W.3d at 310. This requirement serves the purposes of
providing adequate information to the opposing party by which it may oppose the motion and
defining the issues to be considered for summary judgment. Timpte Industries, Inc., 286 S.W.3d
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at 311 (quoting Westchester Fire Ins. Co v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978)). The trial
court is required to grant the motion unless the non-movant produces summary judgment evidence
that raises a genuine issue of material fact. TEX. R. CIV. P. 166a(i).
In conducting our no-evidence summary judgment review, we will “review the evidence
presented by the motion and response in the light most favorable to the party against whom the
summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not. Timpte Industries,
Inc., 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).
When a non-movant presents more than a scintilla of probative evidence that raises a genuine issue
of material fact, a no-evidence summary judgment is improper. Smith v. O’Donnell, 288 S.W.3d
417, 424 (Tex. 2009).
Traditional Summary Judgment Motion
The party moving for traditional summary judgment bears the burden of showing that no
genuine issue of material fact exists and that he is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c). To determine if the non-movant raises a fact issue, we review the evidence in the
light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do
so, and disregarding contrary evidence unless reasonable jurors could not. See Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)(citing City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). A defendant who conclusively negates a single
essential element of a cause of action or conclusively establishes an affirmative defense is entitled
to summary judgment on that claim. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 509 (Tex.
2010).
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Analysis
In its no-evidence motion for summary judgment, Alaska asserted in part that Diez could
not prevail on his premises liability claim because he provided no evidence that a condition on the
premises posed an unreasonable risk of harm and presented no evidence that a condition on the
premises caused his injuries. We first address Issue Four in which Diez asserts that the trial court
erred in granting the summary judgment on no-evidence grounds because more than a scintilla of
evidence exists supporting the elements of each cause of action asserted and genuine issues of
material fact remained for resolution by the trier of fact. See Ford Motor Co., 135 S.W.3d at 600.
In a premises liability case, the plaintiff must establish a duty owed to the plaintiff, breach
of the duty, and damages proximately caused by the breach. Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 767 (Tex. 2010)(citations omitted); Chappell v. Allen, 414 S.W.3d 316, 323
(Tex.App. – El Paso 2013, no pet.)(threshold question in a premises liability case, as with any
cause of action based on negligence, is existence of and violation of a duty). Whether a duty
exists is a question of law for the court and turns “on 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.” Del Lago Partners, Inc., 307 S.W.3d at 767.
The duty owed by a premises owner or occupier is determined by the status of the
complaining party at the time and place of injury. Scott & White Mem’l Hosp. v. Fair, 310
S.W.3d 411, 412 (Tex. 2010); Del Lago Partners, Inc., 307 S.W.3d at 767 (in premises liability
cases, scope of duty turns on the plaintiff’s status); Chappell, 414 S.W.3d at 323. The status of
the complaining party in a premises liability case may be that of an invitee, a licensee, or a
trespasser. See Scott & White Mem’l Hosp., 310 S.W.3d at 412 (invitee); Texas-Louisiana Power
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Co. v. Webster, 91 S.W.2d 302, 306 (Tex. 1936)(licensee and trespasser); Chappell, 414 S.W.3d at
323 (invitee and licensee); Forester v. El Paso Elec. Co., 329 S.W.3d 832, 837 (Tex.App. – El
Paso 2010, no pet.)(invitee and licensee); Wong v. Tenet Hosp. Ltd, 181 S.W.3d 532, 537
(Tex.App. – El Paso 2005, no pet.)(examining status as invitee, licensee, and trespasser); City of El
Paso v. Zarate, 917 S.W.2d 326, 330 (Tex.App. – El Paso 1996, no writ)(trespasser and licensee);
see also Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 106 (Tex.App. – El Paso 1997, writ
denied)(status may change based on person’s location on premises). An invitee is a person who
enters the premises of another at the express or implied invitation of the owner or occupier for the
parties’ mutual benefit. Chappell, 414 S.W.3d at 323; Forester, 329 S.W.3d at 837. Diez was
Alaska’s invitee. Generally, a property owner owes an invitee a duty to use ordinary care to
reduce or eliminate an unreasonable risk of harm created by a premises condition about which the
property owner knew or should have known. See Del Lago Partners, Inc., 307 S.W.3d at 767; TXI
Operations, L.P. v. Perry, 278 S.W.3d 763, 764-65 (Tex. 2009)(premises owners and occupiers
owe a duty to keep their premises safe for invitees against known conditions that pose
unreasonable risks of harm). The duty is to “take whatever action is reasonably prudent under the
circumstances to reduce or to eliminate the unreasonable risk from that condition.” TXI
Operations, L.P., 278 S.W.3d at 764-65 (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292,
295 (Tex. 1983)). 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. See TXI
Operations, L.P., 278 S.W.3d at 765; State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996)(per
curiam). Thus, as an invitee asserting a premises liability claim, Diez was required to prove: (1)
actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the
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condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable
care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use such care
proximately caused the plaintiff’s injury. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.
2000).
In response to Alaska’s no-evidence-of-causation grounds for summary judgment and as
evidence in support of the causation element of his premises liability claim, Diez directed the trial
court to his own deposition testimony. Alaska replied that Diez failed to supply any competent
evidence to support his assertion that his alleged fall caused the injury about which he complains
and argued, as he does on appeal, that Diez has failed to establish by competent expert evidence
the required element of causation.
To meet his burden on the element of proximate causation, Diez was required to provide
evidence of two components: cause-in-fact and foreseeability. See Del Lago Partners, Inc., 307
S.W.3d at 774; LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006)(per curiam). An act or
omission is a cause-in-fact of an injury if it was a substantial factor in causing the injury and
without the act or omission, the harm would not have occurred. See LMB, Ltd., 201 S.W.3d at
688.
No evidence in the record, however, demonstrates that the complained-of conditions
caused or contributed to Diez’ accident. Diez never reported his fall to any person at Alaska’s
facility, and only informed his wife of his fall that evening. There is no evidence that anyone
witnessed Diez’ fall. During his deposition, Diez stated that he landed on his arm and shoulder,
had a scrape on his leg and arm, and testified that he would have said something to someone if he
was seriously injured or thought he was seriously injured, and did not feel that it was “an incident”
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or “something bad.” Diez testified that he did not remember if his neck was “a little sore” that
night or the following night and initially attributed those sensations to sleeping away from home in
a motel with new pillows on a different mattress. During the first two nights after returning home
from El Paso, Diez stated his neck was sore and he experienced some tingling in his arm, and saw
a doctor approximately one week later. After telling his doctor that he had fallen, Diez ultimately
had neck surgery.
Diez was asked during his deposition about information contained in his medical records.
Diez could not remember if he had been in an automobile accident before or after his fall, noted
that he had issues with his nerves and had been examined for memory-related concerns, and
discussed surgeries performed on other areas of his body before his fall. Diez did not remember
that his wife had informed one doctor, approximately one year before Diez fell in El Paso, that
Diez had lost his coordination and had stumbled. When asked during his deposition to identify
the parts of his body that he claims was injured by the fall, Diez identified the scrapes on his arm
and leg, and an injury to his neck. Diez agreed, when asked, that his neck surgery was
necessitated by his fall.
In Guevara v. Ferrer, 247 S.W.3d 662, 663 (Tex. 2007), the Texas Supreme Court
concluded that “expert medical evidence is required to prove causation unless competent evidence
supports a finding that the conditions in question, the causal relationship between the conditions
and the accident, and the necessity of the particular medical treatments for the conditions are
within the common knowledge and experience of laypersons.” It also observed that expert
testimony on causation is not required in limited circumstances when “both the occurrence and
conditions complained of are such that the general experience and common sense of laypersons are
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sufficient to evaluate the conditions and whether they were probably caused by the occurrence.”
Guevara, 247 S.W.3d at 667-68; W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48, 58-59
(Tex.App. – El Paso 2010, no pet.).
Here, however, the necessity of the particular medical treatments for Diez’ neck condition
is not within the common knowledge and experience of laypersons. See Guevara, 247 S.W.3d at
663. Nor does temporal proximity alone, that is, the time between an event and a plaintiff’s
condition, meet standards of scientific reliability or, by itself, support an inference of medical
causation. Guevara, 247 S.W.3d at 667. Diez’ own lay witness testimony that he fell,
experienced a sore neck, and later had neck surgery merely raises a suspicion that the event caused
his neck injury. Id. at 668 (evidence of an event followed closely by manifestation of or treatment
for conditions which did not appear before the event raises suspicion that the event at issue caused
the condition). The Supreme Court has observed that suspicion is not legally sufficient to support
a finding of causation. See Guevara, 247 S.W.3d at 668; Western Investments, Inc. v. Urena, 162
S.W.3d 547, 551 (Tex. 2005)(proximate causation cannot be shown through conjecture, guess, or
speculation); W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d at 59; see also IHS Cedars Treatment
Ctr. of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004)(in negligence case,
cause-in-fact not established where defendant’s negligence did no more than furnish condition
which made the injury possible). When evidence is so weak as to do no more than create a
surmise or suspicion of the matter to be proved, the evidence is “no more than a scintilla and, in
legal effect, is no evidence.” Ford Motor Co., 135 S.W.3d at 601.
Because Diez failed to produce more than a scintilla of competent evidence on the element
of cause-in-fact, the trial court did not err in granting its no-evidence summary judgment in favor
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of Alaska. Consequently, we need not address Diez’ remaining summary judgment complaints.
See TEX. R. CIV. P. 166a(c), (d), (i); East Hill Marine, Inc., 229 S.W.3d at 816. Issues Two,
Three, and Four are overruled.
CONCLUSION
The trial court’s judgment is affirmed.
YVONNE T. RODRIGUEZ, Justice
January 7, 2015
Before Rivera, J., Rodriguez, J., and Barajas, C.J. (Senior Judge)
Rivera, J., not participating
Barajas, C.J. (Senior Judge), sitting by assignment
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