Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 349TH JUDICIAL DISTRICT COURT HOUSTON COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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.
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
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."
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.
2015, the parties filed competing motions for summary
judgment and responses.Ultimately, the trial court denied both
Hetzler's and TDCJ's motions, and TDCJ filed this
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.
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).
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 ...