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Texas Department of Criminal Justice v. Hetzler

Court of Appeals of Texas, Twelfth District, Tyler

June 21, 2017

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, APPELLANT
v.
GARY HETZLER, APPELLEE

         APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT HOUSTON COUNTY, TEXAS (TR.CT.NO. 12-0150)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice.

         Texas Department of Criminal Justice (TDCJ) appeals the trial court's order denying its motion for summary judgment. In one issue, TDCJ argues that the trial court erred in denying its motion because it demonstrated as a matter of law that it was entitled to sovereign immunity. We affirm.

         Background

         Hetzler is an inmate incarcerated at a TDCJ facility. He filed the instant suit in July 2012. In his petition, Hetzler alleges that on April 14, 2012, he was working in a TDCJ food service kitchen as a cook. At that time, he was pouring gravy into a steel insert at the steam kettle in the kitchen. According to Hetzler's pleadings, when he picked up the insert and turned, his foot slipped on the edge of a hole in the floor next to a drain. As he slipped, gravy splashed on his left arm, causing him to drop the steel insert. When the insert fell, it splashed gravy on his face and thumb, burning them. Heltzer alleged that TDCJ's employees were grossly negligent in ordering him to work around this hole in the floor.

         Hetzler filed two grievances prior to filing suit. In his Step One grievance, he states that he is not the first person burned due to these conditions. In his Step Two grievance, he states that there is a hole in the floor by the steam kettle and "you can see rebar and chunks missing." Furthermore, Hetzler's TDCJ Housing/Job Assignment History indicates that he had been assigned to work in the kitchen beginning on January 5, 2012. He is listed on the job turnout roster as a "kitchen helper 2nd" on February 21, 2012, March 1, 2012, March 2, 2012, March 6, 2012, and March 7, 2012. Furthermore, on March 28, 2012, April 2, 2012, and April 13, 2012, Hetzler is listed on the job turnout roster as "cook 2nd."

         The work orders for the kitchen indicate that work began to repair the tiles in front of the steam kettles and the drain pipes on or about June 2, 2011. The work orders specify that there is a need to repair the flooring in front of the steam kettles because tiles are coming loose from the floor. The repairs involved demolition of the kitchen area and were ongoing at the time of Hetzler's injury.

         In May 2015, the parties filed competing motions for summary judgment and responses.[1]Ultimately, the trial court denied both Hetzler's and TDCJ's motions, and TDCJ filed this interlocutory appeal.[2]

         Sovereign Immunity

         In its sole issue, TDCJ argues that the trial court erred in denying its motion for summary judgment because it proved as a matter of law that it was entitled to sovereign immunity.

         Standard of Review

         The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant's cause of action is entitled to summary judgment as to that cause of action. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Id. Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).

         Moreover, when a party contends that summary judgment is improper because of an affirmative defense, it must do more than merely plead that defense. Bans Props., L.L.C. v. Hous. Auth. of City of Odessa, 327 S.W.3d 310, 313 (Tex. App.-Eastland 2010, no pet.). An affirmative defense will prevent the granting of a summary judgment only if the defendant supports each element of the affirmative defense by summary judgment evidence. Id.; Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.-Houston [1st ...


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