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.

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