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Nino v. Primoris Energy Services Corp.

Court of Appeals of Texas, Fourth District, San Antonio

July 10, 2019

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
v.
PRIMORIS ENERGY SERVICES CORP., Appellee

          From the 365th Judicial District Court, Dimmit County, Texas Trial Court No. 15-12-12787-DCVAJA Honorable Amado J. Abascal III, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         Michelle 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 court's judgment.

         Background

         Robert 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."

         The 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.

         Based on this information and Reyna's observation that Robert was sweating heavily, [1]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.[2] 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.[3] Robert repeatedly declined.[4] 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.

         Reyna 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.

         After 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.

         The Niños sued Primoris asserting a claim for gross negligence. The trial court granted Primoris's no-evidence motion for summary judgment, and the Niños appeal.

         Standard of Review

         We 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 (Tex. 2013)).

         Gross ...


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