Ronnie Flores v. Hull Associates North, LP and Hull Associates LLC

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RONNIE FLORES, §
No. 08-20-00154-CV
Appellant, §
Appeal from the
v. §
419th District Court
HULL ASSOCIATES NORTH, LP §
of Travis County, Texas
AND HULL ASSOCIATES, LLC,
§
(TC # D-1-GN-20-002933)
Appellees.
OPINION
Appellees filed a traditional and no-evidence summary judgment motion against Appellant,
which the trial court granted. In two issues, Appellant asserts the trial court erred in concluding
Appellees were entitled to traditional and no-evidence summary judgment. 1 We affirm.
BACKGROUND
Factual Background
Appellant, Ronnie Flores, was involved in an accident that occurred during the construction
of an apartment complex known as The Michael at Presidio (“The Michael”), located in Austin,
Texas. The general contractor for the project was Street Lights Residential Presidio I Construction
LLC (“SLR”). As the general contractor, SLR hired several subcontractors for the construction of
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Appellant’s third issue pertains to the legal standards we analyze under Issues One and Two. In accordance with
legal soundness and legal efficiency, we incorporate Issue Three into our analysis of Issues One and Two.
the project, including Hull Associates North, LP (“Hull”), who was hired to perform the framing
on the jobsite. As per the contractual agreement between Hull and SLR, Hull’s work also included
the installation of temporary ladders and guardrails on the jobsite. Specifically,
Subcontractor [Hull] shall supply and install and be responsible for continuous
maintenance of safety guardrails at all patios, balconies, breezeways, shafts, and
other necessary openings and elevations in accordance with usual and customary
safety standards. Subcontractor shall provide guardrail protection at all leading
edges over 6’ in height throughout the course of this subcontractor’s scope, through
substantial completion of cornice and punch out fur downs. Subcontractor includes
an additional allowance of five (5) hours per week to reinstall guardrails that are
removed and not put back up by others. [Emphasis added].
. . .
Subcontractor [Hull] specifically includes temporary site built ladders as necessary
to complete their work. Stair landings / openings shall be installed in their entirety
per floor, so as to have all components of ladder system complete and correct prior
to the start of the next floor. [Emphasis added].
Hull did provide temporary ladders on the jobsite. According to Hull’s Senior Project Manager,
Robert Simons, Hull had completed its framing work in Building 2—where the accident
occurred—and neither Hull employees, nor its crew, had been in Building 2 for approximately two
weeks at the time of the accident. Hull was not on the jobsite on the day of the accident.
SLR also hired MAAMECH South, LLC as the plumbing subcontractor, who in turn
subcontracted the plumbing work to P&R Plumbing. Appellant was working for P&R Plumbing
as a plumber at the time of the accident. The plumbers were the only trade working in Building 2
at the time of the accident.
On the morning of the accident, Appellant was installing pipes on the second floor
and building 2 was wet and muddy from rain the day before. To perform his work, Appellant
descended from the second floor to the first floor to get materials, and then ascended back to the
second floor where he installed the pipes. Rather than using the ladders installed by Hull, Appellant
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used a floor truss that someone vertically attached to the wall. Appellant was descending to the
first floor by way of the floor truss when he slipped and fell to the ground. 2 Specifically, Appellant
claimed he moved his right leg down first and, in the process, slipped and fell. As a result,
Appellant underwent reconstructive hip surgery and leg surgery.
After the accident, Appellant was instructed by his plumbing employer to falsely report to
Occupational Safety and Health Administration (“OSHA”) investigators that he fell from a job-
built ladder, rather than the truss he actually fell from. Appellant followed his employer’s
instructions and made a false report to OSHA claiming he fell from a job-built ladder. Appellant
eventually admitted to OSHA that he fell from a floor truss and not a job-built ladder.
Although Hull purchased the truss at issue to perform its work, it denies it put up the truss
to be used as a ladder and does not know who did. Hull’s corporate representative testified Hull
deferred to OSHA’s authority and relied on OSHA to investigate the matter; according to Simons,
Hull was not cited by OSHA.
Procedural History
Appellant initiated suit against Hull Associates North, LP and Hull Associates, LLC
(collectively, “Hull”) for common law negligence, negligence per se, joint enterprise and joint
venture, negligent and intentional withholding of medical treatment, and premises liability. The
suit proceeded under Cause No. D-1-GN-17-003055 in the 345th District Court. Hull moved for a
traditional and no-evidence motion for summary judgment as to all claims asserted by Appellant.
The trial court granted Hull’s traditional and no-evidence motion for summary judgment. It also
sustained objections to the statements in the affidavit of Robert Simons attached to Hull’s motion
for summary judgment, which state: “Hull did not install or affix the floor truss on the wall and
2
A truss is a pre-assembled piece of wood used in framing. It is shaped like a ladder, but is not to be mistaken or used
as a ladder.
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never saw the floor truss nailed to the wall prior to Mr. Flores’ accident . . . Hull never saw the
floor truss in use or heard of a floor truss being used prior to the accident.” The trial court overruled
the remainder of Appellant’s objections to the affidavit.
Appellant’s suit was severed into a separate action and assigned new Cause No. D-1-GN-
20-002933 in the 419th District Court. Upon severance, the trial court’s order constituted an entry
of final judgment and Appellant timely appealed in the 419th District Court. 3
DISCUSSION
In Issue One, Appellant argues the trial court erred in concluding Hull was entitled to
traditional summary judgment. In Issue Two, Appellant argues the trial court erred in concluding
Hull was entitled to no-evidence summary judgment. We disagree.
Standard of Review
We review a trial court’s summary judgment de novo. Salazar v. Ramos, 361 S.W.3d 739,
745 (Tex.App.—El Paso 2012, pet. denied). Appellate review is limited to consideration of the
evidence presented to the trial court. Id. “When a summary judgment does not state or specify the
grounds upon which it relies, we may affirm the judgment if any of the grounds presented in the
summary-judgment motion are meritorious.” Id. When a party files a hybrid summary judgment
motion on both traditional and no-evidence grounds, we first review the trial court’s judgment
under the no-evidence standard of review. Id. If the nonmovant failed to produce more than a
scintilla of evidence under the standards of Rule 166a(i), 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). TEX.R.CIV. P. 166a; Salazar, 361 S.W.3d at 745.
3
This case was transferred from our sister court in Austin County, Texas pursuant to the Texas Supreme Court’s
docket equalization efforts. See TEX.GOV’T CODE ANN. § 73.001. We follow the precedent of the Austin Court of
Appeals to the extent they might conflict with our own. See TEX.R.APP.P. 41.3.
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In conducting a no-evidence summary judgment review, we view the evidence presented
by the motion and the 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. Salazar, 361 S.W.3d at 746. A
genuine issue of material fact exists when more than a scintilla of evidence of the challenged
element is produced. Id. More than a scintilla of evidence exists when the evidence rises to a level
that would allow reasonable, fair-minded people to differ in their conclusions. Id. However, less
than a scintilla of evidence exists when the evidence is so weak it does no more than create a
suspicion of a fact. Id. A trial court is required to grant a no-evidence motion unless the nonmovant
produces summary judgment evidence that raises a genuine issue of material fact regarding each
challenged element. Id.
Applicable Law
When one is injured on the property in the control of another, two theories of liability can
apply—negligent activity (negligence) and premises liability. See United Scaffolding, Inc. v.
Levine, 537 S.W.3d 463, 470-71 (Tex. 2017). The Texas Supreme Court has outlined the
applicable theories of recovery as follows:
[A] person injured on another’s property may have either a negligence claim or a
premises-liability claim against the property owner. When the injury is the result of
a contemporaneous, negligent activity on the property, ordinary negligence
principles apply. When the injury is the result of the property’s condition rather
than an activity, premises-liability principles apply.
Id. at 471 (citing Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016)).
Negligence and premises liability claims are separate, distinct theories of recovery, and are not
interchangeable. Id. In a negligent activity case, a property owner or occupier must do what a
person of ordinary prudence in the same or similar circumstances would have done, whereas a
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property owner or occupier in a premises liability case must use ordinary care to reduce or
eliminate an unreasonable risk of harm created by a premises condition the owner or occupier
knows of or should have known of. Id. The distinction between these claims is based on the
principle that “negligent activity encompasses a malfeasance theory based on affirmative,
contemporaneous conduct by the owner that caused the injury, while premises liability
encompasses a nonfeasance theory based on the owner’s failure to take measures to make the
property safe.” Id. (citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)).
The Source of Appellant’s Injury
We must honor the general principles that distinguish negligent activity from premises
liability claims. See id., at 472. Appellant alleged various theories of negligence in addition to his
premises liability claim against Hull. As a threshold matter, we turn to whether Appellant’s injury
resulted from a contemporaneous negligent activity, or a condition on the property.
In this case, Appellant alleged he was injured when he slipped and fell from a floor truss
that was vertically attached to the wall. In his trial court petition, Appellant did not allege any sort
of contemporaneous, ongoing activity that caused his injury. The mere fact that Appellant pleaded
his claims as negligence claims does not make them so; Appellant’s claims are sound in premises
liability—they arise out of a truss that Appellant slipped and fell from. On appeal, Appellant
attempts to assert a viable negligent activity claim and argues, because Hull was contractually
required to supply, install and maintain safety guardrails, its failure to do so means “Hull
maintained control over the injury causing condition or activity.” We fail to see how it is leally
sound to characterize the source of Appellant’s injury as a negligent activity. Appellant has not
alleged that Hull controlled Appellant’s work and that Hull’s negligent control of his work is what
led to his injury. See, e.g., Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)(“Recovery on
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a negligent activity theory requires that the person have been injured by or as a contemporaneous
result of the activity itself rather than by a condition created by the activity.”)[Emphasis added].
In Appellant’s trial court petition, he alleged, among other things, that Hull failed to “build
and install safe ladders with adequate side rails,” and “properly secure the job-made ladders.” In
his appellate brief, Appellant alleges he “was injured as a plumber at an apartment construction
site when he fell from Hull’s wooden framing truss that Hull dangerously installed as a ladder and
which Hull left without warning to be used by unsuspecting plumbers who worked in the building
after it was framed by Hull.”
In essence, Appellant claims his injury resulted from a physical condition Hull created and
then left on the premises. The Texas Supreme Court has recognized “slip/trip-and-fall cases have
consistently been treated as premise defect causes of action.” United Scaffolding, Inc., 537 S.W.3d
at 472 (quoting Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016))(Plaintiff
claimed his injury resulted from a physical condition created and left on the premises, which the
Texas Supreme Court found did not constitute a negligent activity, but rather, a premises defect).
See, e.g., Keetch, 845 S.W.2d at 264 (holding although a slip-and-fall plaintiff alleged injury as a
result of grocery store plant spraying, no ongoing activity was occurring when the plaintiff was
injured and thus, the claim was properly submitted as premises liability); Clayton W. Williams, Jr.,
Inc. v. Olivo, 952 S.W.2d 523, 526-29 (Tex. 1997)(holding that a slip-and-fall plaintiff who alleged
injury resulting from drill pipe thread protectors that were left on the ground was not a
contemporaneous result of someone’s negligence, but rather, was a premises defect case).
We see no reason to depart from the same conclusion here, where the only fair reading of
Appellant’s allegations is that his injury resulted from a physical condition—a floor truss—and
not a contemporaneous activity. The lack of an allegation or evidence of a contemporaneous,
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ongoing activity as the cause of the injury forecloses the possibility that Appellant’s claim can
constitute a negligent activity claim. See e.g., United Scaffolding, Inc., 537 S.W.3d at 472
(Employee’s alleged injury arose from premise defect on scaffold, as required for premises liability
theory of recovery, despite contention that injury arose from contractor’s negligent activity of
improperly assembling, erecting, or securing scaffolding; employee alleged he was injured when
he fell through hole in scaffold and employee never alleged that contemporaneous, ongoing
activity caused injury). When the alleged injury is the result of a premises condition, the injured
party can only recover under a premises liability theory. See H.E. Butt Grocery Co. v. Warner, 845
S.W.2d 258, 259 (Tex. 1992).
We hold Appellant’s alleged injury arose from a premises defect, not a negligent activity.
Thus, Appellant’s only potential cause of action is limited to a premises liability theory. See H.E.
Butt Grocery Co., 845 S.W.2d at 259. Accordingly, we need not address whether the trial court
erred in granting traditional and no-evidence summary judgment on Appellant’s remaining
asserted grounds—common law negligence, negligence per se, joint enterprise and joint venture,
and negligent and intentional withholding of medical treatment.
Premises Liability
We now turn to Appellant’s premises liability claim. In his second amended petition,
Appellant asserted claims for negligence, negligence per se, joint enterprise and joint venture
liability, negligently and intentionally withholding emergency medical treatment, and premises
liability. Hull moved for traditional and no-evidence summary judgment on all of Appellant’s
claims. 4 However, Appellant did not respond to, or otherwise address, the premises liability
4
In Hull’s motion for traditional and no-evidence summary judgment, Hull argued it was not liable under theories of
premises defect, negligent activity, common law negligence, negligence per se, joint enterprise and joint venture, and
negligent and intentional withholding of medical care.
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portion of Hull’s summary judgment in his responsive pleading to the motion. Appellant only
responded to Hull’s claims for negligence.
Moreover, on appeal, Appellant once more failed to respond to or address premises liability
in his appellate brief. There is no mention of premises liability in Appellant’s brief; the entirety of
his brief consists of liability theories of negligence. Hull argues the trial court’s order granting
summary judgment should be affirmed as to all claims on which Hull moved for summary
judgment but to which Appellant did not respond. We agree.
When the trial court’s order does not state the grounds on which the summary judgment is
based, the appellant must show that none of the grounds proposed support the judgment granted.
Unit 82 Joint Venture v. Int’l Commercial Bank of China, Los Angeles Branch, 359 S.W.3d 267,
270 (Tex.App.—El Paso 2011, pet. denied). When an appellant fails to negate each ground on
which the judgment could have been granted, the reviewing court must affirm. Id. Thus, as the
party challenging summary judgment on appeal, Appellant was required to negate all grounds
which could have supported the judgment. See id. Appellant’s failure to challenge the summary
judgment on the premises liability ground creates a presumption it is valid. Cuidado Casero Home
Health of El Paso, Inc. v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 743
(Tex.App.—El Paso 2013, no pet.)(“When a summary judgment ground goes unaddressed, its
validity is presumed.”) Because Appellant failed to address each ground upon which the trial court
could have based its ruling, we need not reach the merits of his premises liability claim. Appellant’s
failure to appeal the trial court’s granting of summary judgment on the premises liability claim,
and the presumption of validity created therefrom, is outcome determinative. 5
5
We also find Appellant’s remaining claims of negligent activity, common law negligence, negligence per se, joint
enterprise and joint venture, and negligent and intentional withholding of medical care are all subsumed within the
premises liability claim.
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In Issue One, Appellant maintains the trial court erred in concluding Hull was entitled to
traditional summary judgment. In Issue Two, Appellant argues the trial court erred in concluding
Hull was entitled to no-evidence summary judgment. As a threshold matter, we concluded
Appellant’s injury arose from a premises defect; thus, Appellant’s only potential cause of action
is limited to a premises liability theory. See H.E. Butt Grocery Co., 845 S.W.2d at 259. However,
Appellant’s failure to address the trial court’s granting of summary judgment on the premises
liability claim necessitates that the traditional and no-evidence summary judgment granted in favor
of Hull be affirmed.
Issue One and Issue Two are overruled.
CONCLUSION
For these reasons, we affirm.
July 27, 2022
YVONNE T. RODRIGUEZ, Chief Justice
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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