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Rodriguez v. Cemex, Inc.

Court of Appeals of Texas, Eighth District, El Paso

July 10, 2019

CEMEX, INC., Appellee.

          Appeal from the 83rd District Court of Pecos County, Texas (TC# P-7295-83-CV)

          Before Rodriguez, J., Palafox, J., and Larsen, J. (Senior Judge) Larsen, J. (Senior Judge), sitting by assignment



         Martin Rodriguez filed this premises liability suit against Cemex, Inc. (Cemex), alleging he was injured while working at a cement plant that was owned and operated by Cemex. In a traditional motion for summary judgment, Cemex alleged that Rodriguez lacked evidence establishing that Cemex owed him a duty of care given that he was injured while performing his work as an employee of an independent contractor. The trial court granted summary judgment in favor of Cemex. We reverse.


         The Parties' Relationship

         Cemex owns and operates a cement plant in Odessa, Texas, known as the Cemex-Odessa plant (hereinafter the "Plant"), which is open 24 hours a day, allowing approximately a hundred tractor-trailer trucks to come onto the premises to fill up with cement every day.[1] Union Logistics frequented the plant as an independent contractor hired by Cemex and would send its own employees to fill and deliver loads of cement on behalf of Cemex's customers. Pursuant to its standard procedures, Cemex had trained Union Logistics' owner, Tony Franco, [2] on the Plant's operations, and in turn, Franco was responsible for training his own employees.[3]

         The Plant's Operations

         At the time of Rodriguez's injury, the Plant had a dual nature tower where drivers filled their trucks with a variety of cement products. The tower consisted of two separate platforms suspended on each side, one to be used as an entrance to the filling area, and the other to be used as an exit. After entering the tower, the driver needed to exit his truck, lower the entrance platform onto the top of his truck, then walk onto the platform to open the hatch located on the top of his truck. After opening the hatch, the driver next raised the entrance platform back to its upright position and secured it into place.

         Thereafter, the driver would move his truck to a position for loading cement into the hatch. After positioning his truck for loading, the driver would once again exit his truck to meet with Cemex employees to advise them of the type of cement needed. Thereafter, a Cemex employee known as a "bulk loader" would fill the load from a control room. Once the fill was complete, the driver would return to his vehicle to move it to the exit side of the platform, where he would be required to lower the exit platform onto the top of his truck and use the platform to walk back to the hatch of his truck to close it. Once he closed the hatch, the driver then raised the exit platform back into its upright position, secured it into place, then returned to his truck to exit the Plant.

         The Accident

         On May 11, 2012, the day of Rodriguez's accident, Union Logistics had hired Rodriguez to fill a load of cement at the Plant, and had also sent another employee, Alfredo Armendariz, to the Plant to fill a load in a separate truck.[4] While Rodriguez walked on the entrance side of the platform to open the hatch on his truck, Armendariz had already advanced to the exit side of the tower, and he was in the process of closing the hatch on his truck. After Armendariz lifted the exit platform off his truck, he failed to secure the platform in the upright position causing it to fall back onto his truck. Thereafter, Armendariz drove away with the exit platform on top of his truck, not aware that he dragged it with him, causing the entire tower to "move," "twist," and destabilize with motion. Due to the movement, Rodriguez's leg became wedged between the entrance platform and the top of his trailer, which crushed his ankle.

         At the time of the accident, there were no Cemex employees immediately near the tower, and none witnessed the accident. However, after a Cemex employee heard screaming, he and another employee looked to the platform and observed that Rodriguez's leg was pinned by the platform; they assisted Rodriguez until EMS arrived to transport him to a nearby medical center.

         Following Rodriguez's accident, upon the recommendation of Alton Ray Crumley, a supervisor at the Plant, Cemex implemented safety measures at the Plant to help prevent similar accidents from occurring in the future. For example, Cemex made the decision to only allow one truck at a time to use the tower. Then, signs were posted warning that only one truck at a time could use the tower. Later, Cemex redesigned its facilities. At the time of this suit, Cemex used a tower design that only allowed one truck to use the tower at a time, referred to as a "separate single access platform."


         Rodriguez filed a lawsuit against Union Logistics, Armendariz, and Cemex. In his claim against Cemex, Rodriguez alleged that Cemex had created a "premises defect" on its property, which was not open and obvious, and that Cemex had failed in its duty to eliminate the defect and/or to warn invitees of the dangerous condition. In his claim against Armendariz, Rodriguez alleged that Armendariz's negligence in failing to secure the platform in the upright position before exiting the Plant was the proximate cause of his injuries. In his claim against Union Logistics, Rodriguez alleged that it had failed to provide him with a safe work environment and failed to adequately train and supervise its employees. After the trial court granted Rodriguez's motion for partial summary judgment with respect to his claim against Armendariz, Rodriguez went to mediation with both Armendariz and Union Logistics, and settled with those two defendants for $20, 000, leaving only his claim against Cemex pending.

         Cemex's Motion for Summary Judgment

         Subsequently, Cemex filed a traditional motion for summary judgment contending that Rodriguez had no evidence to support its claim that Cemex owed him a duty of care that it had breached. In its motion, Cemex characterized Rodriguez as being an employee of an independent contractor arguing that a premises owner only owes a duty to an employee of an independent contractor on its premises to either rectify or warn the employee about a hidden defect the owner knew or should have known existed on its premises. Cemex argued that the "irrefutable summary judgment evidence" established that there was no defect, "hidden or otherwise," on its premises that caused Rodriguez's injuries, and that instead, Armendariz's negligence was the sole cause of the accident.

         In his response to Cemex's motion for summary judgment, Rodriguez argued that the hidden defect was the lurking danger posed by the dual use nature of the tower itself, and the fact that the tower could become unstable by the actions of one driver while another was using it. Rodriguez further argued that he had raised a genuine issue of fact regarding whether Cemex had "actual knowledge" of this allegedly dangerous condition on its property based on evidence that Cemex was aware that several prior incidents had occurred at the Plant during which the tower had become destabilized. Rodriguez attached two incident reports, documenting two other instances that occurred at the Plant in March and May of 2012, in which drivers had failed to secure the platform in the upright position, and had dragged the platform with them as they attempted to exit the Plant, one of which occurred the day before Rodriguez's accident. According to the reports, which Crumley filled out in both instances, no one was hurt and there was no structural damage to the platform, although the driver's truck involved in the incident of May 2012 had sustained property damage.

         Rodriguez also attached excerpts from Crumley's deposition testimony, as well as that of another Cemex employee, Jeremy Joseph, who both testified about their knowledge of the prior incidents. In his deposition, Joseph testified that he believed it was fairly common for drivers to become "entangled with the platform," thereby causing the tower to become unstable, and that he believed such incidents occurred as often as every month, or at the least, every six months. In his deposition, Crumley also acknowledged that, although no one had been injured in the prior incidents, the platform appeared to have been damaged or bent from previous incidents of this nature. In addition, both Crumley and Joseph acknowledged that they had been aware of the risk of injury posed by allowing two trucks to use the platform at the same time, and that it would have been safer to allow only one truck at a time to use the tower. Crumley further acknowledged Cemex could have taken "additional actions" to safeguard against the prospect of future injuries prior to the time of Rodriguez's accident.

         Rodriguez argued that this evidence raised a material question of fact regarding whether Cemex was aware that it had created an "obvious risk of unreasonable harm" on its premises by allowing two drivers to use its platform at the same time.[5] He argued that, "[h]aving a metal platform weighing thousands of pounds spinning around poses an obvious risk of unreasonable harm," and that Cemex had failed to exercise reasonable care to reduce or eliminate that risk before Rodriguez's accident occurred.

         The Trial Court's Judgment and Rodriguez's ...

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