Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 414th District Court McLennan County, Texas
Trial Court No. 2009-3005-5; Honorable Vicki Menard,
QUINN, C.J., and PIRTLE and PARKER, JJ.
Patrick A. Pirtle Justice
Norman Raines, appeals a "take nothing" summary
judgment entered against him in his personal injury lawsuit
filed against Appellees, Ira Hale and One Pine Tree, Inc.,
d/b/a Alpha Auto (hereinafter "Hale"), for injuries
sustained while working at Hale's place of business. By
three issues, Raines contends the trial court erred in
granting summary judgment because a fact issue existed
regarding (1) whether a premise defect existed, (2) whether
the premise defect was open and obvious, and (3) whether Hale
breached a duty to provide a safe work
environment. We affirm.
worked for Hale as an independent contractor doing auto-body
repairs, when he was asked to sharpen the blade on a riding
lawnmower. Raines attempted to sharpen the blade by first
raising it on an automotive frame machine. To remove the
mower blade, Raines used his own pneumatic impact wrench
rather than a simple hand-held wrench because there was no
hand-held wrench available that fit the bolt securing the
blade to the lawnmower. There is nothing in the record to
suggest that Hale required or recommended that Raines use the
impact wrench. After Raines sharpened the blade he then
attempted to reattach it to the lawnmower by again using the
pneumatic impact wrench. During that process, the bolt
snapped and the blade fell, striking Raines in the face.
then sued Hale, seeking recovery for the injuries he
sustained, based on theories of premises liability and
failure to provide a safe work environment. In his pleadings,
Raines maintained that he was an invitee because he was not
hired to perform maintenance or repair work on lawnmowers.
Raines contended that, as an invitee, Hale owed him a duty to
use ordinary care to keep the premises in a reasonably safe
condition, inspect the property to discover latent defects,
and to make safe any premise defect or give an adequate
warning of any dangers. Raines further alleged that Hale
should have provided him with a reasonably safe working
environment, including a proper lift to elevate the lawnmower
and a person to assist him.
filed a traditional motion for summary judgment alleging the
accident and the resultant injuries were not caused by a
condition of the real property but rather by Raines's own
negligence in using an impact wrench on a job that did not
call for the use of such equipment. Based on excerpts taken
from Raines's deposition, Hale further alleged that, even
if Raines's claim was considered to be a premises
liability claim, the danger of using an impact wrench was
open and obvious. Hale also claimed that he was not obligated
to provide Raines any tools or instruments because he was an
standard of review for a traditional summary judgment under
Rule 166a(c) of the Texas Rules of Civil Procedure is well
established. Nixon v. Mr. Property Management
Company, Inc., 690 S.W.2d 546, 548 (Tex. 1985).
The moving party carries the burden of showing there is no
genuine issue of material fact and it is entitled to judgment
as a matter of law. Diversicare General Partner,
Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
Evidence favorable to the nonmovant will be taken as true in
deciding whether there is a disputed issue of material fact.
Fort Worth Osteopathic Hosp., Inc. v.
Reese, 148 S.W.3d 94, 99 (Tex. 2004). All reasonable
inferences, including any doubts, must be resolved in favor
of the nonmovant. Id. A defendant is entitled to
summary judgment if the evidence disproves as a matter of law
at least one element of every cause of action alleged or if
it conclusively establishes all elements of an affirmative
defense. Randall's Food Markets, Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the
defendant establishes a right to summary judgment as a matter
of law, the burden shifts to the plaintiff to respond to the
motion and present evidence raising a genuine issue of
material fact. City of Houston v. Clear Creek Basin
Authority, 589 S.W.2d 671, 678-79 (Tex. 1979).
as here, a party presents multiple grounds for summary
judgment and the order does not specify the ground on which
the trial court rendered summary judgment, the appellant must
negate all grounds on appeal. State Farm Fire & Cas.
Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993). That is,
the summary judgment must be affirmed on appeal if any of the
grounds presented in the motion are meritorious.
Provident Life and Accident Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003); FM Props. Operating Co. v.
City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
first issue, Raines contends the trial court erred by
granting summary judgment in favor of Hale because, under his
theory of premises liability, there was a material fact issue
regarding whether a premise defect existed that caused his
injuries. In response, Hale contends Raines's injuries
were not caused by a premise defect but instead by his own
premises liability action, the duty owed by a property owner
or occupant is determined by the status of the complaining
party at the time and place of injury, i.e., whether the
claimant was an invitee, licensee, or trespasser. Scott
& White Mem. Hosp. v. Fair,310 S.W.3d 411, 412
(Tex. 2010); Greater Houston Transportation Company v.
Phillips, 801 S.W.2d 523, 525 (Tex. 1990). An invitee is
a person who enters the property of another at the express or
implied invitation of the owner or occupier for mutual
benefit. Rosas v. Buddies Food Store, 518 S.W.2d
534, 536 (Tex. 1975). As such, it is clear from the summary
judgment record that Raines was an invitee. However, the
occurrence of an injury on the property of another does not
alone make the ...