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Torres v. Mansell

Court of Appeals of Texas, Seventh District, Amarillo

March 3, 2017


         On Appeal from the 146th District Court Bell County, Texas, Trial Court No. 253, 938-B, Honorable Jack Weldon Jones, Presiding.

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.



         Before us is an appeal and cross-appeal from a final summary judgment. Hilario Torres contends that the trial court erred in granting the motion and denying him recovery against Chauncey Mansell and Mueller Supply Co., Inc. (collectively referred to as Mueller). Mueller argues, via the cross-appeal, that the trial court erred in overruling his motion to modify the judgment to include therein a ruling on its objections to Torres' summary judgment evidence. We affirm.


         The dispute began when Torres was electrocuted. According to the summary judgment evidence, he worked for a subcontractor (Chino) hired by A&S Construction to lay a cement parking lot surrounding the sales office Mueller was building for itself. Mueller (the property owner) had hired A&S Construction as the general contractor and assigned Mansell (one of its employees) to coordinate and monitor the job.

         At the time of the incident in question, Torres was working at night and attempting to smooth or level the surface of some freshly poured concrete. While doing that, the metal handle of the bull float (also called the "mapa, " "avion, " and "airplane") he utilized to perform his task touched an electrical line. The line was over or adjacent to that portion of the lot being completed. Apparently, the float's handle approximated 16' in length, and it contacted the live wire as Torres pulled the float across the cement's surface towards him. Torres testified, via deposition, that he knew of the line's presence after having seen it days before.

         Torres also testified that "people" from Mueller not only were at the scene but also were the ones who told him and his colleagues "what to do there." Who those people were, he could not remember, though. Furthermore, the assumption that they were from Mueller was based on comments from his coworkers. He admitted, though, that he personally did not know who they were. Those coworkers also said that because someone from Mueller allegedly was there, "we should do a good job." According to the same deposition testimony, the unknown Mueller people (along with Brian Alvey of A&S Construction) told Torres and his compatriots "to pour the concrete." None, however, directed him to use the float or mapa. Instead, Torres reiterated, they said "[y]ou're going to pour this cement" and [e]verybody do your particular job."

         Touching the live electrical line resulted in Torres suffering extensive injury and the suit underlying this appeal. In his suit, Torres asserted that the presence of the live power lines created an unreasonably dangerous condition. Furthermore, the causes of action alleged against Mueller sounded in premises liability, active negligence, negligence per se, and gross negligence. Mueller joined issue and eventually filed a traditional motion for summary judgment.

         In the motion for summary judgment, Mueller invoked Chapter 95 of the Texas Civil Practice and Remedies Code, argued that it controlled the disposition of the entire lawsuit, and contended that the summary judgment evidence negated Torres' ability to satisfy the requirements of that statute as a matter of law. It also argued the summary judgment evidence established that 1) it retained no control over the work performed by Torres or his employer, 2) the overhead lines were known to Torres, and 3) the statute under which Torres sought to impose negligence per se was inapplicable to it. Torres responded to the motion with his own evidence, argument, and a motion for a continuance to conduct additional discovery.

         The trial court denied the motion for continuance but granted that seeking a summary judgment. No ground was mentioned as the basis for granting summary judgment, though. And, one motion that went unresolved was that filed by Mueller wherein it objected to aspects of the summary judgment evidence proffered by Torres. This omission was made the subject of a motion to modify the judgment, which motion was not granted.

         Standard of Review

         First, because this appeal was transferred from the Third Court of Appeals, we are bound to apply its precedent and that of the Texas Supreme Court. See Tex. R. App. P. 41.3 (stating that "[i]n cases transferred by the Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court.")

         Second, we need not reiterate the relevant standard of review in an appeal from a summary judgment. It is well settled and described in Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445 (Tex. 2015), and Cantu v. Southern Ins. Co., No. 03-14-00533-CV, 2015 Tex.App. LEXIS 8847 (Tex. App.-Austin Aug. 25, 2015, no pet.) (mem. op.). The parties are referred to those cases for its description.

         Third, our Supreme Court, in Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004), described the standard of review utilized when addressing whether a trial court erred in denying a motion for continuance seeking time to conduct discovery. Id. at 160-161; see Melton v. Farrow, No. 03-13-00542-CV, 2015 Tex.App. LEXIS 1224, at *10-11 (Tex. App.-Austin Feb. 10, 2015, pet. denied) (mem. op.) (reiterating the standard stated in Joe v. Two Thirty Nine Joint Venture). It too will be applied when we address that issue.

         Torres' Appeal

         Torres asserts various grounds allegedly warranting a reversal of the trial court's decision to grant Mueller's motion for summary judgment. We address each in turn.

         Texas Civil Practice and Remedies Code § 95.001 et seq

         The first ground we address involves the application of Chapter 95 of the Texas Civil Practice and Remedies Code. Torres believes the statute to be inapplicable because the improvement being completed did not cause his injury. We disagree.

         Chapter 95 controls recovery in a "claim . . . against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor . . . that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement." Tex. Civ. Prac. & Rem. Code Ann. § 95.002(1) & (2) (West 2011). If the claim falls within the scope of § 95.002(1) and (2) then the property owner "is not liable" for personal injury, death or property damage "arising from the failure to provide a safe workplace unless" two hurdles are cleared. Id. § 95.003. The first requires proof that the owner exercised or retained some control over the manner in which the work is performed; however, the control must involve more than the right to order the work to start or stop, to inspect progress, and to receive reports. Id. § 95.003(1). Under the second hurdle, it must be shown that the owner had actual knowledge of the danger or condition resulting in the injury, death or damage, and failed to adequately warn of that danger. Id. § 95.003(2).

         The scope of the statute is quite broad given the definition of the word "claim." It means "a claim for damages caused by negligence, " id. § 95.001(1), and the Supreme Court has chosen not to interpret that language as distinguishing between negligence claims "based on contemporaneous activity or otherwise" because the legislature made no such distinctions. Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 48 (Tex. 2015). That is, "Chapter 95's plain language does not require the court to classify certain negligence claims for different treatment." Id. at 49 n.7. Rather, it encompasses "all negligence claims that arise from either a premises defect or the negligent activity of a property owner or its employees." Id. at 50; Ineos USA, LLC. v. Elmgren, 505 S.W.3d 555, 562 (Tex. 2016) (reiterating that Chapter 95 applies to all negligence based claims).

         The Supreme Court, in Abutahoun, took the opportunity to discuss and define other words found in the statute as well. For instance, the word "condition" was construed as meaning "'either an intentional or an inadvertent state of being.'" Abutahoun, 463 S.W.3d at 49, quoting Sparkman v. Maxwell, 519 S.W.2d 852 (Tex. 1975); accord, 4front Engineered Solutions, Inc. v. Rosales, 505 S.W.3d 905, 912 (Tex. 2016) (involving Chapter 95 and observing that "[b]y asking about a 'condition of the premises, ' this question [in the jury instructions] presented a premises-liability theory that focuses on the 'state of being' of the property itself"). In turn, "use" was interpreted as meaning "'to put or bring into action or service'" or to "'employ for or apply to a given purpose.'" Abutahoun, 463 S.W.3d at 49, quoting Tex. Dept. of Crim. Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001).

         One other term undefined in Chapter 95 but discussed by the Court was "improvement." And, the Court opted to "broadly define[ ] [it] to include 'all additions to the freehold except for trade fixtures [that] can be removed without injury to the property.'" Id. at 49, quoting Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475, 479 (Tex. 1995). The broad nature of the definition was reconfirmed by the Supreme Court in Ineos. Ineos USA, LLC. v. Elmgren, ...

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