Jane Goings, Individually and as Next Friend of Richard Goings v. Helen M. Black

Affirmed and Memorandum Opinion filed January 22, 2004

Affirmed and Memorandum Opinion filed January 22, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00523-CV

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JANE GOINGS, INDIVIDUALLY, AND AS NEXT FRIEND OF RICHARD GOINGS, Appellant

V.

HELEN M. BLACK, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2002-52673

M E M O R A N D U M O P I N I O N

Appellant, Jane Goings, individually, and as next friend of Richard Goings, appeals the trial court=s summary judgment in favor of appellee, Helen Black. In a single issue, appellant contends the trial court erred in granting summary judgment in favor of appellee.  We affirm.

Background

Jane Goings and her son Ricky Goings are neighbors of Helen Black.  When Ricky was about fourteen years old he began mowing Black=s yard.  Approximately one year after he began mowing Black=s yard, on April 8, 2001, Ricky was injured while preparing to mow. Ricky jumped on a tree limb; the limb rolled toward him and struck his eye. 

On the day of the accident, prior to mowing the yard, Ricky drove his father=s truck to Black=s yard so that he could transport debris back to the Goings= residence to be burned.  One of the tree limbs in the yard was too large to fit in the truck.  Ricky attempted to break up the tree limb by jumping on it.  He jumped on it once and a portion of the limb broke so that he could put it in the truck.  When he jumped on the limb a second time, the limb rolled toward him, and a branch struck Ricky in the eye, causing him to lose sight in the eye.

Ricky=s mother, Jane Goings, filed suit on Ricky=s and her behalf against Black for premises liability.  Jane and Ricky contended that Black failed to exercise the required degree of care to protect Ricky from the dangerous condition that existed on her property.  Black filed a motion for summary judgment in which she contended she owed Ricky no duty to warn him of the danger of jumping on the tree limb.  The trial court granted Black=s motion.

Standard of Review

The purpose of summary judgment is to eliminate patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact.  Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).  The movant for summary judgment has the burden to show there is no genuine issue of material fact, and it is entitled to judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  A defendant who conclusively negates at least one of the essential elements of each of the plaintiff=s causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to a summary judgment.  Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).  When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non‑movant.  Nixon, 690 S.W.2d at 548B49.

Premises Liability

The threshold inquiry in a negligence action is duty.  Centeq Realty v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  A plaintiff must prove the existence and violation of a duty owed to him by the defendant to establish negligence liability.  Id. at 197. The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question.  Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Black=s duty to Ricky is gauged by his status as an invitee on her property.  An invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit.  McClure v. Rich, 95 S.W.3d 620, 625 (Tex. App.CDallas 2002, no pet.).  Both Goings and Black agree that Ricky was working as an independent contractor and his status was that of an invitee on Black=s property.

An owner or occupier of land owes a duty to use reasonable care to protect an invitee from reasonably foreseeable injuries.  Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975).  Generally, the owner or occupier of the premises does not have a duty to see that an independent contractor performs the work in a safe manner.  Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999).  The supreme court has established that where the activity is conducted by, and is under the control of, the independent contractor, and where the danger arises out of the activity of the independent contractor, the responsibility or duty is that of the independent contractor and not that of the owner of the premises.  Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976).  However, a premises owner can owe a duty if the owner retains or actually exercises control over the independent contractor=s work.  See, e.g., Clayton W. Willaims, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997).

Ricky=s injury was caused by the performance of his duties in clearing the land in preparation for mowing.  Therefore, Black did not owe a duty to Ricky to ensure that he safely performed his work unless she retained control over his work.  See Koch Refining Co., 11 S.W.3d at 155.  Whether Black owed Ricky a duty turns on whether Black retained or actually exercised a right of supervision such that Ricky was not entirely free to do the work on his own.  Id. Black=s summary judgment evidence established that she did not retain a supervisory right over Ricky such that he was not free to do the work on his own.  In his deposition, Ricky testified that he alone made the decision to break up the tree branch so that it would fit in the truck.  He also testified that it was his sole decision to jump on the tree limb to break it.  He further testified that Black had a brush pile in her yard where the tree limb could have been moved so the yard could be mowed.  Goings has failed to establish the requisite control over the details of Ricky=s work to establish Black=s liability for Ricky=s injuries.  Accordingly, because Black did not exercise control over Ricky=s work, she owed no duty to Ricky.

Because Black produced evidence establishing as a matter of law that she did not exercise the power to forbid the work from being done in a dangerous manner, the trial court did not err in granting summary judgment.  Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed January 22, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.