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Arana v. K. Hovnanian Homes-Dfw, L.L.C.

Court of Appeals of Texas, Fifth District, Dallas

June 18, 2018

ANA ARANA, INDIVIDUALLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF VICTOR ARANA, DECEASED, AND ON BEHALF OF ALL WRONGFUL DEATH BENEFICIARIES; EDGAR ARANA, PAOLA ARANA, AND ALEXANDER ARANA, Appellants
v.
K. HOVNANIAN HOMES-DFW, L.L.C., Appellee

          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-09585A-I

          Before Justices Lang-Miers, Myers, and Boatright Opinion by Justice Lang-Miers

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE

         Victor Arana died after falling from a rafter while working as part of the framing crew at a home being built by appellee K. Hovnanian Homes-DFW, L.L.C. Appellants Ana Arana, individually, as personal representative of the estate of Victor Arana, deceased, and on behalf of all wrongful death beneficiaries, Edgar Arana, Paola Arana, and Alexander Arana (Aranas) sued Hovnanian and other defendants for various negligence claims and negligence per se. The Aranas appeal the trial court's grant of traditional and no-evidence summary judgment to Hovnanian. We affirm.

         Background

         At the time of the accident, Victor Arana was working as a framer on a framing crew on a new home project being constructed by Hovnanian. Victor Arana worked for his brother Antonio Arana. Antonio Arana—as J.A.A. Construction—was a second-tier framing subcontractor, which entered into a subcontracting agreement with the first-tier subcontractor Victor Figueroa Construction to perform framing work at the project. Victor Figueroa was the framing subcontractor for Hovnanian at the project.

         After completion of framing at the project, a third party—ENERGY STAR—inspected the property. ENERGY STAR "red tagged" the project because insulation needed repair. Victor Arana and others on the framing crew went to the project to repair the insulation damage. Victor Arana was on the rafters attempting to repair the insulation when he fell. He was not wearing a helmet or safety harness.

         The Aranas filed suit against Hovnanian and other defendants, asserting negligence claims and negligence per se. Hovnanian filed a motion for traditional and no-evidence summary judgment, arguing that duty was an essential element of the Aranas' negligence claims and there was no evidence that Hovnanian owed Victor Arana a duty and that the evidence conclusively negated the existence of a duty.[1] The trial court granted Hovnanian's motion for summary judgment without stating the grounds. The trial court then granted Hovnanian's motion for severance and ordered that judgment was final. The Aranas then filed this appeal.

         Standard of Review

         We review a trial court's grant of summary judgment de novo. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per curiam). We review the summary-judgment evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Because the trial court's order does not specify the grounds for granting summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). In a no-evidence motion for summary judgment, the nonmovant must present evidence that raises a genuine issue of material fact on the challenged elements of its claim. Tex.R.Civ.P. 166a(i); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The party moving for traditional summary judgment must show that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); see Mann Frankfort, 289 S.W.3d at 848.

         Duty

         Because it is dispositive, we first address the Aranas' argument as part of their second issue that the trial court committed reversible error in granting no-evidence summary judgment when it did not find that there is a genuine and material fact question concerning whether Hovnanian owed a duty to Victor Arana. The Aranas contend that there is a genuine and material fact question regarding whether Hovnanian owed Victor Arana a duty based on (1) Hovnanian exercising "some control over the manner, methods, means, and/or details of the work which he was doing at the time of his on-the-job injuries[, ]" (2) a premises defect, and (3) a negligent activity controlled by or involving Hovnanian that was contemporaneous with Victor Arana's injuries.

         The elements of a negligence claim are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015). The threshold inquiry is whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Id.

         Control

         A premises owner or general contractor generally does not owe any duty to ensure that an independent contractor performs his work in a safe manner. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per curiam); Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 784 (Tex. App.—Dallas 2013, no pet.); Perez v. Embree Const. Grp., Inc., 228 S.W.3d 875, 881 (Tex. App.—Austin 2007, pet. denied). A general contractor owes the same duty as a premises owner to an independent contractor's employee. Koch, 11 S.W.3d at 155 n.1; Gonzalez, 418 S.W.3d at 784. A limited duty arises if a general contractor or premises owner retains control over a subcontractor's methods of work or operative details to the point that the subcontractor is not entirely free to do the work in his own way. Koch, 11 S.W.3d at 155; Gonzalez, 418 S.W.3d at 784. The general contractor's or premises owner's "duty of reasonable care is commensurate with the control it retains" over the subcontractor. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 355 (Tex. 1998) (per curiam); see Gonzalez, 418 S.W.3d at 784. The more the general contractor controls the independent contractor's work, the greater the general contractor's responsibility is for any injuries that result. Hoechst-Celanese, 967 S.W.2d at 356; Gonzalez, 418 S.W.3d at 784-85.

         However, general supervisory control that does not relate to the activity causing the injury is not sufficient to create a duty. Gonzalez, 418 S.W.3d at 785. Merely exercising or retaining a general right to recommend a safe manner for the independent contractor's employees to perform their work is not enough to impose a duty. Koch, 11 S.W.3d at 155; Gonzalez, 418 S.W.3d at 785. In addition, there must be a nexus between the condition or activity that caused the injury and a general contractor's retained supervisory control. Hoechst-Celanese, 967 S.W.2d at 357; Gonzalez, 418 S.W.3d at 785.

         A party can establish the right to control in two ways: by a contractual right to control or by an exercise of actual control. Gonzalez, 418 S.W.3d at 785. On appeal, the Aranas do not argue that Hovnanian had a contractual right to control Victor Arana. Rather, the Aranas argue that the evidence shows Hovnanian's right to control through its exercise of actual control over Victor Arana's work. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002) (stating that a "party can prove right to control[, ]" in "the absence of a contractual agreement, by evidence that the premises owner actually exercised control over the manner in which the independent contractor's work was performed").

         The Aranas argue that there is a genuine and material fact question regarding whether Hovnanian owed a duty to Victor Arana because there is evidence demonstrating that Hovnanian had the "right to exercise at least some control over" Victor Arana's "work prior to and at the time of his on-the-job injuries[.]" The evidence that the Aranas rely on includes:

• Testimony from Hovnanian's proj ect manager, Phillip Jeffrey Fazzino, that Victor Arana would have to follow Hovnanian's written plan for the house while working on the house.[2]
• Fazzino's testimony that he was "in charge of constructing" the house and obligated to conduct inspections.
• Testimony by Hovnanian project manager, Kevin Wayne Zimmerman, that he would walk through the homes that he oversaw daily.

         This evidence concerns Hovnanian's general supervisory control that did not relate to the activity that caused the injury—Victor Arana standing on open ceiling rafters without safety equipment to fix the damaged insulation—and, consequently, it did not raise an issue of fact concerning whether Hovnanian owed a duty to Victor Arana. See Cardona v. Simmons Estate Homes I, L.P., No. 05-14-00575-CV, 2016 WL 3014792, at *5 (Tex. App—Dallas May 25, 2016, no pet.) (mem. op.); Gonzalez, 418 S.W.3d at 785 ("General supervisory control that does not relate to the activity causing the injury is not sufficient to create a duty.").

         In addition, the Aranas argue that the evidence raises a fact issue concerning whether Hovnanian had "some control" over Victor Arana's work because Hovnanian's employees on the job site had the right to tell framers and other workers how to perform their work. They rely on testimony by Hovnanian's project manager, Fazzino, and Hovnanian's quality assurance manager, Thomas Greg Johnson, that they did not know whether the framing crew were employees or subcontractors of Figueroa. But the Aranas do not explain how this evidence demonstrates that Hovnanian had control over Victor Arana's work. The Aranas also cite testimony by Johnson and Hovnanian's community manager, Blake Randall Peden, that Johnson's responsibilities included conducting walk-throughs of the job sites looking for safety violations and defects and that he would instruct workers to correct unsafe practices. Johnson testified that they would follow his instructions. But this evidence of Johnson's general supervisory control and responsibility for safety on Hovnanian's job sites is not sufficient to create a duty. See Koch, 11 S.W.3d at 155; Gonzalez, 418 S.W.3d at 785 ("[M]erely exercising or retaining a general right to recommend a safe manner for the independent contractor's employees to perform their work is not enough to subject a premises owner to liability."). In addition, other evidence confirms that Antonio Arana exercised control over his workers, not Hovnanian. Jose Gabino Paredes, who worked for Antonio Arana as a framer and was present when Victor Arana fell, testified by deposition that Antonio Arana directed the framing crew where to work and when to begin work and Victor Arana would tell his crew (one of the crews that worked for Antonio Arana) when to end work for the day.[3]

         The Aranas also make the related argument that evidence that Hovnanian's employees were in charge of safety on the job site where Victor Arana was injured is evidence that Hovnanian exercised "some control" over Victor Arana's work and creates a fact question concerning whether Hovnanian owed Victor Arana a duty. The Aranas rely on testimony that Tom Johnson was safety manager, that Hovnanian's project or construction managers held "job site safety meetings" on site "with the crews" to "discuss safety with the crews" including specific safety topics like fall protection, [4] and that they would talk to the crew leaders to "make sure they were visiting with their crews about safety." The Aranas also rely on testimony that the toolbox talks took place every two weeks or bimonthly, that Johnson would "walk houses" every two weeks, and that he would "drive the neighborhood and look for unsafe acts." Johnson testified that these unsafe practices could include "a guy on a scaffolding without fall protection; a roofer on [sic] without being tied off." During a walk-through, Johnson would conduct "a visual walk-through for safety and/or looking for defects in the framing." He also conducted quarterly safety audits of paperwork. And Johnson testified that he recalled driving through the subdivision where Victor Arana's accident took place. The Aranas also cite Johnson's testimony that, if he "saw men working without fall protection where they needed to have fall protection[, ]" he "would tell them they need to get the proper protection on or get off the job." Yet Peden testified that Johnson oversaw safety for the company but he was not in charge of safety of the specific home or subdivision where Victor Arana's accident took place. Likewise, Fazzino's testimony reflected that Hovnanian did not control the workers on the job site through its oversight of safety. He stated that "[t]he crews were in charge of their own safety, especially the subcontractors who subbed out beyond that." He also testified:

Q. So K. Hovnanian Homes would teach the workers about safety?
A. They—it allowed them to be aware of it. I wouldn't necessarily say teach. They wouldn't teach them about safety procedures. They would say be — more awareness. "Hey, be aware of these things. When you walk on a job site, you have to be aware and watch out with everything you do." But, yeah, there was never really an instruction on how to be safe.
Q. Did K. Hovnanian Homes, in those toolbox talks/safety meetings, ever say, you know "You shouldn't do this, " or "You ...

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