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Costley v. Landry's Inc.

Court of Appeals of Texas, First District, Houston

December 21, 2017

WILLIAM COSTLEY, Appellant
v.
LANDRY'S INC., Appellee

          On Appeal from County Court at Law No. 1 Galveston County, Texas Trial Court Case No. CV-0072069

          Panel consists of Justices Higley, Massengale, and Lloyd.

          MEMORANDUM OPINION

          Laura Carter Higley Justice

         William Costley sued Landry's Inc. for injuries sustained during a visit to perform maintenance on an air conditioning unit. He asserted a premises liability claim. Landry's filed a traditional and no-evidence motion for summary judgment, which the trial court granted. In two issues on appeal, Costley argues that Chapter 95 of the Texas Civil Practice and Remedies Code does not preclude his claim and that he presented sufficient evidence for each element of his premises liability claim. We affirm.

         Background

         On May 17, 2012, Mr. Costley, an independent contractor employed by Dustless Air Filter, was sent to the Aquarium, a seafood restaurant located in Kemah, Texas. The Aquarium is owned and operated by Landry's. When Costley arrived at the Aquarium, the manager showed him the ladder and overhead hatch, which Costley used to access the air conditioners located on the roof.

         After he replaced the filters for the air conditioners, Costley opened the hatch and proceeded to step down the ladder to exit the roof. As he was closing it, the hatch door slammed shut on his right hand. Costley jerked back, losing his balance on the ladder. Attempting to regain his balance, Costley grabbed the ladder. However, when he grabbed the ladder, it detached from the wall and Costley fell approximately ten to twelve feet. After the fall, Mr. Costley went to a nearby hospital emergency room, where he was diagnosed with multiple injuries.

         Costley filed suit. Landry's later filed a motion for summary judgment. In it, Landry's argued that the record conclusively showed that Costley could not meet his burden of proof for the prerequisites for liability under Chapter 95 of the Texas Civil Practice and Remedies Code and that Costley had no evidence to support the necessary elements for premises liability.

         Costley responded to the motion for summary judgment. For the no-evidence point, Costley attached evidence that he argued supported each element of his premises liability claim. Costley's evidence included the deposition testimony of Josh Hairgrove, Landry's designated representative, and Russ Evleston, Costley's expert.

         Hairgrove testified that he had worked at the restaurant in question since the beginning of 2012. He testified that, in the time he had worked at the store, he had been up and down the ladder and used the hatch many times. Hairgrove said he never had any trouble with either the ladder or the hatch. He also testified that he did not know of anyone else being injured or otherwise experiencing trouble with the hatch.

         Elveston examined the premises after the injury had occurred. He testified that the ladder had not been securely attached. Elveston also testified that, at the time he examined the premises, he saw no evidence that the ladder had been attached to the structural steel near the top of the ladder. He conceded, however, that it could have been attached to other structural components.

         Regarding the hatch, Evleston testified that there was a hazard to closing the hatch. His proof for this was that, when he investigated the hatch for the lawsuit, he used the hatch. He testified that, when he closed the hatch, "at a certain point the weight shifts and it becomes the full weight of the hatch coming down. . . . [B]ecause the position of the anchor points for the lever was halfway down the hatch, it was virtually impossible for me to control the rate of descent." He testified that the hatch "fell with unexpected force and speed."

         The trial court granted the motion for summary judgment.

         Premises ...


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