Appeal from the 113th District Court Harris County, Texas
Trial Court Case No. 2015-55326.
consists of Justices Lloyd, Landau, and Countiss.
Jesus Garcia, challenges the trial court's rendition of
summary judgment in favor of appellee, MTZ Trucking, Inc., in
his suit for negligent training and supervision and gross
negligence. In his sole issue, Garcia contends that the trial
court erred in granting MTZ Trucking summary judgment.
second amended petition, Garcia alleges that he was hired by
MTZ trucking to "operate dump trucks." On July 3,
2014, while working as an employee of MTZ Trucking, he
delivered a load of product to the premises of Perfect
Plastic Recycling, Inc., a company "owned, operated, and
managed" by Viral Thakkar. On that day, in the course of
making his delivery, Garcia's end-dump truck "came
into contact with a live power line" on Perfect
Plastic's premises. Garcia suffered serious and permanent
injuries as a result.
brought claims against MTZ Trucking for negligent training
and supervision and gross negligence. Garcia asserted that MTZ
Trucking owed a legal duty to train and supervise its
employees, including Garcia; it breached its duty; and its
breach proximately caused Garcia's injuries. More
specifically, Garcia alleged that MTZ Trucking failed to
provide him with training on "the operation of the
machinery," that is, an end-dump truck; failed to
supervise him "in his work with dump trucks"; and
failed to "properly train or supervise [him] on
avoiding electrical wires." Garcia sought damages for
past and future physical pain and mental suffering, past and
future loss of earning capacity, past and future medical
expenses, past and future physical impairment, past and
future physical disfigurement, and "exemplary/punitive
Trucking answered, generally denying Garcia's allegations
and asserting defenses. MTZ Trucking then filed a combined
no-evidence and matter-of-law motion for summary judgment,
attaching exhibits. In the motion, MTZ Trucking asserted
that, as a matter of law, it did not owe a duty to train or
supervise Garcia "regarding any alleged dangerous
condition asserted by [Garcia] on . . . Perfect Plastic's
premises." Further, it asserted that Garcia is "a
seasoned truck driver with over 33 years of experience,"
he "had made over 100 deliveries dumping materials
for" MTZ Trucking, and he "had driven th[e] exact
same end[-]dump truck at least 15 previous times." It
therefore allegedly did not owe him a duty to train and
supervise him "to pay attention to his surroundings
before raising the [end-dump] truck's trailer into power
lines." In other words, (1) because Garcia was
"experienced in the type of work he was doing" when
he was injured, (2) because "MTZ Trucking had no
knowledge nor was it required to anticipate the presence of
electrical wires" on Perfect Plastic's premises, and
(3) because "the dangers incident to electrical power
lines are common and obvious to anyone," MTZ Trucking
owed "no duty pertaining to the power lines or
[Garcia]'s operation of the truck." And because the
existence of a legal duty is an essential element of
Garcia's claims, MTZ Trucking argued that it was entitled
to judgment as a matter of law.
response to MTZ Trucking's motion, Garcia asserted that
MTZ Trucking owed him the common-law duties to "hire,
supervise, train, and retain competent employees" and
"to adequately hire, train, and supervise
[inexperienced] employees." Garcia asserted that he
"was not experienced in the work he was assigned[, ]
which was the unloading of end dumps." Further,
according to Garcia, MTZ Trucking had a "duty to train
[him] under federal motor carrier safety law." Garcia
attached exhibits to his response too.
reply to Garcia's response, MTZ Trucking argued that it
did not owe Garcia a "duty to properly train and
supervise an inexperienced employee" because Garcia was
not inexperienced. Further, Garcia "fail[ed] to provide
sufficient evidence of a duty to train [him] for the specific
dangers of overhead electrical wires and the dangers of
contact" between an end-dump truck and such wires.
According to MTZ Trucking, an employer owes no duty to warn
an employee of hazards that are commonly known or already
appreciated by the employee. And Garcia also "failed to
provide sufficient evidence to establish" that MTZ
Trucking had "an additional duty pursuant to"
federal motor carrier safety law.
trial court granted MTZ Trucking summary judgment.
review a trial court's decision to grant summary judgment
de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). In conducting our review, we
take as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference, and resolve any doubts,
in the nonmovant's favor. Id. If a trial court
grants summary judgment without specifying the grounds for
granting the motion, we must uphold the trial court's
judgment if any of the asserted grounds is meritorious.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248
(Tex. 2013); Beverick v. Koch Power, Inc., 186
S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet.
seeking summary judgment may combine in a single motion a
request for summary judgment under the no-evidence standard
with a request for summary judgment as a matter of law.
See Tex. R. Civ. P. 166a(c), (i); Binur v.
Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004). When a party
has sought summary judgment under both standards, we
typically review the summary judgment first under the
no-evidence standard. See Merriman, 407 S.W.3d at
248; Deweese v. Ocwen Loan Servicing L.L.C., No.
01-13-00861-CV, 2014 WL 6998063, at *2 n.1 (Tex. App.-Houston
[1st Dist.] Dec. 11, 2014, no pet.) (mem. op.). However, we
may review the summary judgment under the matter-of-law
standard first if it would be dispositive. See
Deweese, 2014 WL 6998063, at *2 n.1; Poag v.
Flories, 317 S.W.3d 820, 825 (Tex. App.-Fort Worth 2010,
pet. denied); see also Tex. R. App. P. 47.1.
matter-of-law summary-judgment motion, the movant has the
burden to show that no genuine issue of material fact exists
and that the trial court should grant judgment as a matter of
law. See Tex. R. Civ. P. 166a(c); KPMG Peat
Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999). When a defendant moves for a
matter-of-law summary judgment, it must either: (1)disprove
at least one essential element of the plaintiff's cause
of action or (2)plead and conclusively establish each
essential element of an affirmative defense, thereby
defeating the plaintiff's cause of action. Lujan v.
Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex.
App.-Houston [1st Dist.] 2014, no pet.). Once the movant
meets its burden, the burden shifts to the nonmovant to raise
a genuine issue of material fact precluding summary judgment.
See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,
197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip.
Tr., 321 S.W.3d 685, 691 (Tex. App.-Houston [14th Dist.]
2010, no pet.). The evidence raises a genuine issue of fact
if reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary-judgment evidence.
See Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).
sole issue, Garcia argues that the trial court erred in
granting MTZ Trucking summary judgment on his claims for
negligent training and supervision and gross negligence
because: (1) MTZ Trucking, as a "non-subscriber
employer," "ha[d] a legal duty to train or
supervise [Garcia] on the specific hazards associated with
operating an end dump in the vicinity of overhead electric
wires when an injury occurs outside the non-subscriber's
premises"; (2) "the hazard of unloading an end dump
in the vicinity of electric wires, and the risk of [electric
shock] when exiting a cab of the end dump that might be in
contact with overhead electrical wires," were not
"open and obvious hazards"; and (3) "there is
a fact issue for the jury whether the hazards were 'open
A.Employee Negligence Suit Against