Court of Appeals of Texas, Fifth District, Dallas
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
K. HOVNANIAN HOMES-DFW, L.L.C., Appellee
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-09585A-I
Justices Lang-Miers, Myers, and Boatright Opinion by Justice
ELIZABETH LANG-MIERS JUSTICE
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.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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").
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.
• Fazzino's testimony that he was "in charge of
constructing" the house and obligated to conduct
• Testimony by Hovnanian project manager, Kevin Wayne
Zimmerman, that he would walk through the homes that he
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
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.
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,
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
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 ...