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Jaimes v. Lozano

Court of Appeals of Texas, Fifth District, Dallas

April 14, 2017

JOSE JAIMES, Appellant
v.
MARCO LOZANO D/B/A AMERICAN WASTE DISPOSAL, Appellee

         On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-07575

          Before Chief Justice Wright, Justice Lang-Miers, and Justice Myers

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE.

         Jose Jaimes sued his employer, Logan and Son Used Tire Service, Inc., and American Waste Disposal for injuries he sustained when a tire he had been working on exploded. Jaimes settled with Logan and Son. He alleged claims against AWD for negligence and premises liability, and the trial court granted AWD's no-evidence motion for summary judgment. On appeal, Jaimes argues that the trial court erred by granting AWD's motion. We affirm.

         Background

         Logan and Son is in the business of buying, selling, and repairing used commercial truck tires and scrapping tires for the State. AWD regularly brought in its garbage trucks for tire repairs. Jaimes worked at Logan and Son for eight years. For the first four of those years he picked up used tires and brought them back to the shop for either repair and sale or disposal. For the last four years, he repaired flats.

         One day an AWD driver drove a garbage truck to Logan and Son to have a flat repaired. The truck had four front and four back tires; the flat tire was one of the inside tires. Jaimes said he knew which tire needed to be repaired because it was flat when the truck came into the shop. Melvin Logan, the manager of Logan and Son, instructed Jaimes to "patch it up." After Jaimes patched the tire, he put the tire on the rim and added 90 pounds of pressure. About eight minutes later, as he was preparing to put the tire back on the garbage truck, he "turned around to get the tire [and he] heard something almost like fabric breaking apart. And [he] knew something was going to happen." The tire exploded. Jaimes put his face inside the rim of the tire just before the explosion because he "wasn't going to have time to run." The explosion knocked him unconscious and severely injured his hand.

         Jaimes sued AWD, the customer, for negligence and premises liability alleging AWD "was negligent in providing defective materials, " that AWD "knew or should have known of the dangerous condition the defective materials posed, " and AWD "failed to exercise ordinary care and did not make an adequate effort to protect [him] at the time of the incident." AWD moved for no-evidence summary judgment on the grounds that there was no evidence of any relationship between AWD and Jaimes giving rise to a legal duty; no evidence AWD owned, operated, or controlled the premises where Jaimes was injured; and no evidence AWD committed any negligent acts or omissions that proximately caused Jaimes's injuries. In response to the motion, Jaimes asserted that AWD was vicariously liable for the actions of its independent contractor, Logan and Son, because AWD retained some control over the manner in which Jaimes performed the work. He also argued that when a party "negligently creates a dangerous situation, it then becomes his duty to do something about it."[1] And he asserted AWD was liable under sections 388 and 392 of the Restatement (Second) of Torts, which he contends imposed a duty to warn "of the condition of the flat tire on [AWD's] garbage truck before [Jaimes] started working with that tire." To support his response, Jaimes attached as evidence excerpts from the deposition of the owner of Logan and Son, pictures of his injuries, excerpts from his own deposition, the affidavit of AWD's owner, and discovery responses. The trial court granted AWD's motion and rendered judgment dismissing Jaimes's claims with prejudice.

         On appeal, Jaimes argues that the trial court erred by granting AWD's motion because he raised a genuine issue of material fact as to each element of his negligence and premises liability claims.

         Standard of Review

         We review the grant of a no-evidence summary judgment by determining whether the nonmovant produced evidence raising a fact issue on the material questions presented. See Tex. R. Civ. P. 166a(i); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.-Dallas 2009, pet. denied). In our review, we consider the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). If the nonmovant's evidence would allow reasonable and fair-minded people to differ in their conclusions regarding the challenged elements, the no-evidence summary judgment was improper. Tex. Integrated Conveyor Sys., 300 S.W.3d at 375-76.

         Discussion

         Negligence Claim

         To establish negligence, a plaintiff must show that the defendant owed the plaintiff a legal duty, the defendant breached that duty, and the breach proximately caused the plaintiff's damages. Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015). Whether AWD owed a legal duty to Jaimes is a question of law. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Jaimes argues that AWD owed him a legal duty under several ...


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