Court of Appeals of Texas, First District, Houston
Appeal from County Court at Law No. 1 Galveston County, Texas
Trial Court Case No. CV-0072069
consists of Justices Higley, Massengale, and Lloyd.
Carter Higley Justice
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.
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.
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.
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
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.
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.
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.
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."
trial court granted the motion for summary judgment.