Ovalle v. United Rentals

Case: 21-11076 Document: 00516458462 Page: 1 Date Filed: 09/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 2, 2022
No. 21-11076 Lyle W. Cayce
Clerk
Alberto Ovalle,
Plaintiff—Appellant,
versus
United Rentals North America, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:18-CV-211
Before Smith, Wiener, and Southwick, Circuit Judges.
Per Curiam:*
Alberto Ovalle, a mechanic, brought various negligence claims against
his employer after he slipped and fell on rainwater that seeped into his work
bay. The district court granted his employer summary judgment on all
claims. We AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-11076 Document: 00516458462 Page: 2 Date Filed: 09/02/2022
No. 21-11076
FACTUAL AND PROCEDURAL BACKGROUND
Alberto Ovalle worked as a mechanic for United Rentals North
America, Inc. in its Canyon, Texas, facility. He was assigned to two work
bays and was the only field technician who worked in those areas. To enter
the work bays, Ovalle had two entrance options — a door near the front office
or a side door that opened directly into the work bay. The side door entrance
did not have a light switch near the door. When entering that way, Ovalle
needed to follow yellow tape on the floor to reach the other side of the work
bay to switch on the light.
We rely on Ovalle’s evidence for our factual recitation. Over a ten-
month period, Ovalle observed on two occasions that water pooled on the
floor of the work bay when it was raining. Ovalle used a squeegee, a mop, and
cleaning products to clear the water out of the work bay in those instances.
He also informed Art Silva, whom he considered his supervisor, that water
sometimes pooled in the bay.
On March 28, 2017, Ovalle entered his work bay as usual through the
side door. It was raining. He took nine steps into the work bay, toward the
light switch, and then slipped on rainwater that had seeped into the work bay.
Without the light on, it was too dark for Ovalle to see the rain puddle. He
also was unable to follow the yellow tape because equipment was in his
pathway. He got up from the ground and felt a sharp pain. Ovalle eventually
turned on the light but still felt pain, so he reported the incident to the United
Rentals branch manager.
In November 2018, Ovalle sued United Rentals in the United States
District Court for the Northern District of Texas. Asserting diversity
jurisdiction, he brought the following negligence claims:
[1] failing to furnish a reasonably safe place to work; [2] failing
to warn Plaintiff of hazards of his employment not commonly
2
Case: 21-11076 Document: 00516458462 Page: 3 Date Filed: 09/02/2022
No. 21-11076
known or already appreciated; [3] failing to properly supervise,
monitor, and train its employees regarding the proper manner
in which to inspect and make the premises reasonably safe; [4]
failing to furnish reasonably safe instrumentalities with which
to work; [5] failing to provide or enforce safety policies and
regulations regarding safe, adequate lighting and preventing
slips from liquids on the floor; [6] failing to adequately warn of
or make safe dangers or conditions of which Defendant had
actual or constructive knowledge; [7] failing to reasonably
inspect the premises for concealed, unreasonably dangerous
conditions and failing to warn of or make safe such conditions;
[8] failing to keep the premises in a reasonably safe condition;
[9] failing to use ordinary care as a reasonable person would
under the same or similar circumstances; and [10] such
additional acts of negligence, which will be established as the
case progresses.
United Rentals moved for summary judgment on all claims. On July
16, 2021, the district court granted the motion and dismissed the suit. Ovalle
timely appealed after the district court denied reconsideration.
DISCUSSION
We review a grant of summary judgment de novo. Molina v. Home
Depot USA, Inc., 20 F.4th 166, 168 (5th Cir. 2021). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must view all facts and inferences “in the light most favorable to
the nonmoving party.” Valderas v. City of Lubbock, 937 F.3d 384, 388 (5th
Cir. 2019). The court may not make credibility determinations or weigh the
3
Case: 21-11076 Document: 00516458462 Page: 4 Date Filed: 09/02/2022
No. 21-11076
evidence when deciding whether a dispute of material fact exists. Sport
Supply Grp., Inc. v. Columbia Cas. Co., 335 F.3d 453, 456 (5th Cir. 2003).
Ovalle first disputes the district court’s classification of his failure-to-
warn claim under Texas law. The court held that his claim against United
Rentals for failure to warn him of the dangerous condition in the work bay
was solely a premises-liability claim, not a premises-liability claim and a
workplace-safety claim. That matters, Ovalle argues, because the court
should have held that United Rentals had a workplace-safety duty to warn of
the water in the work bay.
Under Texas law, an employee may bring the following negligence
claims against an employer: (1) negligent-activity claims; (2) premises-
liability claims; and (3) workplace-safety claims. See Austin v. Kroger Tex.,
L.P., 465 S.W.3d 193 (Tex. 2015). A plaintiff may not pursue both a
negligent-activity and a premises-liability theory of recovery for a single
injury that is based on a premises condition unless there is some ongoing
activity that caused the plaintiff’s injury in addition to the premises
condition. See Keetch v. Kroger Co., 845 S.W.2d 262, 264; see also Austin, 465
S.W.3d at 215 (discussing difference between premises-liability and
negligent-activity theories).
Ovalle does not make a claim based on negligent activity. Thus, for
Ovalle to succeed on his premises-liability claim, he must show evidence that
his employer “fail[ed] to take measures to make the property safe.” Del Lago
Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). Claims will be
viewed in their true character regardless of how a plaintiff categorizes them.
United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 480 (Tex. 2017).
Workplace-safety claims may be brought alongside premises-liability
claims. Austin, 465 S.W.3d at 215–17. A workplace-safety theory of
negligence is applicable when the employer-employee relationship gives rise
4
Case: 21-11076 Document: 00516458462 Page: 5 Date Filed: 09/02/2022
No. 21-11076
to additional duties such as “provid[ing] necessary equipment, training, or
supervision.” Id. The two negligence theories may coincide because the
different relationships — landowner-invitee and employer-employee —
create two different proximate causes and therefore require two different
negligence theories to allow sufficient recovery. Id. at 216–17.
For example, an employee was allowed to pursue claims under both
premises-liability and workplace-safety theories for an injury he sustained
after he slipped and fell on a spill he was required to clean up without being
provided the proper tools. Id. at 216.
The fact that [the plaintiff] alleged that a condition of the premises
proximately caused his injury does not preclude his allegation that [the
employer’s] negligent failure to provide the [s]pill [cleanup] system
also caused his injury. If the only relationship between [the plaintiff]
and [the employer] were that of landowner-invitee, the alleged facts
could only give rise to a premises-liability claim.
Id.
We examine whether Ovalle has viable premises-liability or
workplace-safety claims.
I. Premises-liability claims
An employer’s and a landowner’s duties to warn are coextensive:
“While an employer’s liability may differ from that of other landowners[,]
. . . its premises-liability duty is the same as that owed by landowners to
invitees generally.” Id. at 202. That duty requires that employers maintain
the relevant premises “in a reasonably safe condition.” Id. at 217. That duty
can be satisfied “by providing an adequate warning of concealed dangers of
which they are or should be aware but which are not known to the employee.”
Id. Where a dangerous condition is “open and obvious or known to the
invitee,” the landowner has no duty, because the landowner is not in any
5
Case: 21-11076 Document: 00516458462 Page: 6 Date Filed: 09/02/2022
No. 21-11076
better position to discover the danger than the invitee. Id. at 203. This is true
regardless of whether the landowner is an employer. Id. at 217.
Ovalle admitted he observed water pooling in the work bay when it
rained on two prior occasions. He also knew the condition was dangerous,
because he reported it to Silva. The district court concluded his awareness
relieves United Rentals of any duty to warn Ovalle of the water under either
a premises-liability or workplace-safety negligence theory. See Austin, 465
S.W.3d at 203. That was error, Ovalle argues, because Texas law recognizes
a necessary-use exception. “[L]andowners have no duty to protect or warn
such persons when they are aware of the risks and could have avoided them.”
Id. at 208 (emphasis added). Consequently, even when an invitee is aware of
the relevant risk, if “the landowner should have anticipated that the invitee
is unable to take measures to avoid the risk,” then the duty to make the
premises safe remains. Id.
This theory of liability depends on the invitee’s ability to avoid the
known risk. The record shows Ovalle had access to a different door which
would have allowed him to turn on the light before encountering the water.
Indeed, during his deposition he agreed that “if [he] wanted to, [he was]
allowed to walk through the front door of the United Rentals facility.”
Ovalle responds that a fact issue still prevents summary judgment. In
his deposition, Ovalle explained he was told to enter the side door and,
indeed, had exclusively used the side door. The district court rejected this
testimony, finding it constituted the equivalent of a “sham affidavit.” That
finding was based on events during the deposition. Ovalle first stated in
response to his own counsel’s questioning that “[s]ometimes I would” use
the front entrance but “[m]ost of the time” used the side door. Counsel
repeatedly asked about which door he used. Finally, opposing counsel
objected, saying the question about what door was used had been asked “like
6
Case: 21-11076 Document: 00516458462 Page: 7 Date Filed: 09/02/2022
No. 21-11076
five times.” Almost immediately after the objection, Ovalle’s counsel asked
for a restroom break. After the break, Ovalle again answered the question
about the doors he used by saying he “always” used the side door and that it
was the door he was “authorized” to use. The district court considered the
events of the deposition to confirm that a dispute of fact was
“manufacture[d]” and the dispute could be ignored by the court.
The sham-affidavit doctrine applies when a plaintiff introduces an
affidavit that conflicts with earlier testimony, such as in a deposition. S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996). A district
court may refuse to consider such an affidavit if the statements made in the
affidavit “are so markedly inconsistent with a prior statement as to constitute
an obvious sham.” Winzer v. Kaufman Cnty., 916 F.3d 464, 472 (5th Cir.
2019) (quotation marks and citation omitted).
We have not discovered caselaw applying the sham-affidavit concept
to an internal inconsistency within a single deposition testimony. Ovalle’s
contradiction is distinguishable from the kind ordinarily at issue in sham-
affidavit cases. See Seigler v. Wal-Mart Stores Tex., L.L.C., 30 F.4th 472, 477
(5th Cir. 2022) (describing the issue as inconsistency with “prior testimony”
(emphasis added)). Instead of contradicting himself after an initial
testimony, he contradicted himself within the same testimony. Generally,
inconsistency within the same testimony would be an issue of credibility for
the trier of fact. See Dibidale of La., Inc. v. Am. Bank & Tr. Co., 916 F.2d 300,
307–08 (5th Cir. 1990). The one special feature here is that the inconsistency
arose after counsel had an opportunity, but we do not know if it was used, to
redirect the witness’s answers.
We see no need to decide whether what occurred here fits within the
reach of caselaw about sham affidavits. That is because Ovalle’s deposition
testimony did not meaningfully contradict or raise uncertainty as to whether
7
Case: 21-11076 Document: 00516458462 Page: 8 Date Filed: 09/02/2022
No. 21-11076
he had access to the front door. He conceded in his deposition that, if he
wanted to, he could have used that door. Therefore, it did not matter if he
decided actually to use the side entrance every day or only sometimes. The
necessary-use exception is inapplicable.
Another one of Ovalle’s arguments is based on the Texas Workers’
Compensation Act (“TWCA”). Subscribing to the TWCA is optional for
employers. Tex. Lab. Code § 406.033(a). If an employer does not
subscribe, i.e., have workers’ compensation insurance, and United Rentals
did not, then there are certain defenses the employer may not raise when
litigating an employee’s negligence claim. Id. One of them is contributory
negligence. Id. Regardless, “the employee [will still have] the burden of
proving that the employer owed a duty.” Austin, 465 S.W. at 200.
Ovalle’s awareness of the risk is relevant to the existence of United
Rentals’ duty to warn. It is not a question of Ovalle’s liability or possible
negligence in the fall. See Austin, 465 S.W.3d at 202–03. Because “the
TWCA’s wavier of a nonsubscriber’s defenses . . . has no bearing on our
analysis of an employer’s duty,” it is proper to consider Ovalle’s awareness
of the risk to evaluate whether United Rentals had a duty to warn Ovalle of
the water at all. Id. at 202. The grant of summary judgment here is thus
consistent with United Rentals’ non-subscriber status under the TWCA, and
no genuine issues of fact remain as to Ovalle’s premise liability claims.
There was no error in the grant of summary judgment on the claims
based on premises liability.
II. Workplace-safety claims
We also examine Ovalle’s claims brought under the workplace-safety
negligence theory. He does not dispute the district court’s classification of
these remaining claims — that United Rentals failed to provide him with the
necessary instrumentalities, training, supervision, and safety policies to
8
Case: 21-11076 Document: 00516458462 Page: 9 Date Filed: 09/02/2022
No. 21-11076
perform his job safely — as falling under a workplace-safety theory. Instead,
he challenges the district court’s conclusion that no genuine issue of material
fact remains on these claims.
We begin with his claim that United Rentals failed to provide the
necessary instrumentalities for Ovalle to perform his job safely. See Kroger v.
Elwood, 197 S.W.3d 793, 794 (Tex. 2006). In Texas, an employer has a duty
to provide necessary instrumentalities but not those that would be
unnecessary for safe performance. Id. at 794–95. The employer also owes no
duty where the employee is “doing the same character of work that he has
always done” when there is no evidence that the work poses a threat of injury.
Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995).
Ovalle had all the equipment necessary to address the risks of water
seepage. He had access to the front door to avoid the rainwater he knew
pooled in the work bay. He had cleaning supplies for spills he used
successfully on multiple occasions. There was no need for United Rentals to
provide more, because additional instrumentalities would be unnecessary for
a safe job performance. See Molina, 20 F.4th at 169–70. For example, in
Elwood, an employee was injured when a customer shut a car door on his hand
while he was unloading groceries. Elwood, 197 S.W.3d at 794. The court held
the employer had no duty to provide carts with wheel locks or additional
personnel to assist because there was no evidence those extra measures
would aid in the safe unloading of groceries. Id. at 795. Here, too, Ovalle has
shown no evidence that additional instrumentalities were needed for him to
enter the work bay and perform his job as a mechanic.
Moreover, Ovalle entered the work bay every day for ten months.
Entering the work bay was neither an unusual task nor one that posed a threat
of injury — he was “performing the same character of work” he and other
mechanics would have always done, namely entering a work bay and being
9
Case: 21-11076 Document: 00516458462 Page: 10 Date Filed: 09/02/2022
No. 21-11076
aware of possible hazards. See Austin, 465 S.W.3d at 214 (quoting Elwood,
197 S.W.3d at 795). United Rentals did not breach its duty to provide
additional instrumentalities to Ovalle.
Ovalle also alleges that United Rentals failed to provide sufficient
training, supervision, and safety policies regarding water hazards. On
Ovalle’s failure-to-train claim, he alleges United Rentals failed to provide
adequate training to handle the hazardous condition. “An employer is not
an insurer of its employees’ safety at work,” but “an employer [still has] a
duty to use ordinary care in providing a safe workplace.” Leitch v. Hornsby,
935 S.W.2d 114, 117 (Tex. 1996). Where an employee’s task does not require
specialized training or is performed regularly without any special training or
assistance, the employer does not have the duty to provide additional
training. See Elwood, 197 S.W.3d at 794–95. Texas courts have held that “an
employer has no duty to adopt safety rules where its business is neither
complex nor hazardous or where the dangers incident to the work are obvious
or are of common knowledge and fully understood by the employee.”
National Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.
— Houston [14th Dist.] 1999, no pet.); accord Patino v. Complete Tire, Inc.,
158 S.W.3d 655, 660 (Tex. App. — Dallas 2005, pet. denied).
United Rentals did not have a duty to provide training in addition to
what it already provided for Ovalle to enter the work bay safely. He was a
25-year experienced mechanic. He did not need specialized training to know
how to enter the work bay in order to avoid slipping on water. Texas courts
have held that “an employer’s duty to instruct applies to an inexperienced
employee, but not to one who is experienced in the work he is assigned.”
Patino, 158 S.W.3d at 661. The task of entering the work bay also does not
require specialized training and therefore does not show any need for further
training. See Elwood, 197 S.W.3d at 794–95 (explaining that employee who
alleged employer provided inadequate training did not succeed, because his
10
Case: 21-11076 Document: 00516458462 Page: 11 Date Filed: 09/02/2022
No. 21-11076
job was neither dangerous nor specialized). Ovalle also was aware of the
condition of the work bay because he reported it to Silva. The danger was
commonly known and open and obvious, eliminating any need for additional
instruction. See National Convenience Stores Inc., 987 S.W.2d at 149. United
Rentals therefore did not breach its duty to provide adequate training to
Ovalle.
Ovalle also argues the district court erred in granting summary
judgment on his claim for negligent supervision, because there was a
“complete lack of supervision” and “oversight” over the building. He
argues Silva was insufficiently trained because he was not supervising the
building and also did not report the water as a dangerous condition. “To
establish a claim for negligent supervision, a plaintiff must show that an
employer’s failure to supervise its employees caused his injuries.”
Dangerfield v. Ormsby, 264 S.W.3d 904, 913 (Tex. App. — Fort Worth 2008,
no pet.).
Even though Ovalle couches this allegation as a workplace-safety
claim of negligent supervision, his allegation that there was negligent
supervision over the building sounds in the duty of a landowner or employer
to warn of a dangerous condition. See Austin, 465 S.W.3d at 217 (explaining
employer and landowner must maintain premises in a reasonably safe
condition). “Creative pleading does not change the nature of a claim.”
Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 386 (Tex. 2016). When
his negligent-supervision claim is considered as its true nature — that is, a
failure-to-warn of a premises-condition claim — this claim also fails for the
reasons discussed earlier that Ovalle’s awareness of the spill relieves United
Rentals of its duty to warn Ovalle of the water.
Ovalle finally claims that United Rentals should have adopted
additional safety policies to prevent his injury. Similar to his failure-to-train
11
Case: 21-11076 Document: 00516458462 Page: 12 Date Filed: 09/02/2022
No. 21-11076
claim, in Texas, an employer “has no duty to adopt safety rules where its
business is neither complex nor hazardous or where the dangers . . . are
obvious to the employee.” See National Convenience Stores Inc., 987 S.W.2d
at 149. Again, Ovalle was not engaged in a complex or hazardous activity
when entering the work bay, considering he had an alternative front entrance
and cleaning supplies, and importantly, he was aware rainwater pooled in the
work bay.
The district court did not err in granting summary judgment on
Ovalle’s workplace-safety claims.
AFFIRMED.
12