Court of Appeals of Texas, Fourth District, San Antonio
Michelle NIÑO, Individually and as Personal Representative of the Estate of Robert Niño, Deceased; Julyssa Sixx Niño; Robert Niño Jr.; and Alyssa Nikki Niño; Appellants
PRIMORIS ENERGY SERVICES CORP., Appellee
the 365th Judicial District Court, Dimmit County, Texas Trial
Court No. 15-12-12787-DCVAJA Honorable Amado J. Abascal III,
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa,
Justice, Irene Rios, Justice
Patricia O. Alvarez, Justice
Niño, individually and as personal representative of
the Estate of Robert Niño; Julyssa Sixx Niño;
Robert Niño Jr.; and Alyssa Nikki Niño
(collectively the Niños) appeal a no-evidence summary
judgment granted in favor of Primoris Energy Services Corp.
The Niños assert they presented more than a scintilla
of evidence that Primoris's gross negligence caused
Robert Niño's death. We affirm the trial
Niño, an employee of Primoris, was working with three
other employees to change filters inside a vessel at a
natural gas facility. The other employees were Brandon Reyna,
the designated safety representative; Francisco Ramos, the
foreman; and Roy Quilimaco, whose job was to continuously
watch the employee working inside the vessel and monitor the
situation for potential hazards. Both Robert and Ramos worked
at various times inside the vessel which required them to
wear protective clothing and air respirator equipment. The
protective gear was described as heavy and "hot."
crew began working around 10:00 a.m. and finished replacing
the filters around 5:30 p.m.-with several breaks for water
and lunch. After the filters were replaced but before the job
site was cleaned, Reyna observed Robert sitting in the work
crew truck. When Reyna approached Robert, Robert told him his
vision had blurred and he had tripped and fallen to the
ground while he was on his way to the restroom. Robert added
that he got up after a short time, used the restroom, and
returned to the crew's work truck to rest.
on this information and Reyna's observation that Robert
was sweating heavily, Reyna stayed with Robert and decided to
take measures relating to possible heat stress, including
initiating an incident investigation and reporting process.
Reyna transferred Robert to his vehicle, turned on the air
conditioning, brought Robert more water, and informed
Ramos. The decision was made that Robert would
not return to work. Reyna reported the incident to three
managers, including the regional safety manager, and Robert
was repeatedly asked if he wanted to be taken to the hospital
or a doctor for medical treatment. Robert repeatedly
declined. After the job site was cleaned and the
vessel secured, the crew left the job site with Robert riding
with Reyna, and Quilimaco riding with Ramos.
and Robert carried on a conversation before stopping at a
convenience store approximately forty-five minutes after
leaving the job site. Robert used the restroom, and Reyna
purchased a Gatorade and a banana for him because Robert
previously told Reyna he did not have any money. Quilimaco
spoke with Robert at the convenience store. Quilimaco
described Robert as tired but fine and speaking coherently.
leaving the convenience store, Reyna and Robert continued to
talk for the remaining two-hour drive. When Reyna again
offered Robert medical assistance upon arriving at his house,
Reyna described Robert as being annoyed with the
conversation. As he exited the vehicle, Robert told Reyna he
was feeling fine, and Reyna believed Robert looked okay.
Reyna did not believe Robert had continued sweating while at
the convenience store or when they arrived at his house.
While showering a short time later, however, Robert collapsed
and died from a heart attack.
Niños sued Primoris asserting a claim for gross
negligence. The trial court granted Primoris's
no-evidence motion for summary judgment, and the Niños
review a no-evidence summary judgment under the same legal
sufficiency standard as a directed verdict. Painter v.
Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex.
2018). "Under this standard, the nonmovant has the
burden to produce more than a scintilla of evidence to
support each challenged element of its claims."
Id. "Less than a scintilla of evidence exists
when the evidence is 'so weak as to do no more than
create a mere surmise or suspicion' of a fact."
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650
S.W.2d 61, 63 (Tex. 1983)). "More than a scintilla of
evidence exists when the evidence 'rises to a level that
would enable reasonable and fair-minded people to differ in
their conclusions.'" Id. (quoting
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997)). "[W]e view the evidence 'in the
light most favorable to the nonmovant, crediting evidence a
reasonable jury could credit and disregarding contrary
evidence and inferences unless a reasonable jury could
not.'" Painter, 561 S.W.3d at 130 (quoting
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248