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Hernandez v. Driscoll Children's Hospital

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 15, 2019

HOMER HERNANDEZ, Appellant,
v.
DRISCOLL CHILDREN'S HOSPITAL, Appellee.

          On appeal from the 347th District Court of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE

         By one issue, appellant Homer Hernandez appeals the trial court's summary judgment in favor of appellee, Driscoll Children's Hospital (the Hospital). We affirm.

         I. Background

         The Hospital hired J.R. Electric, a contractor, to perform the work necessary to install an MRI scanner. Hernandez, an employee of J.R. Electric, was electrocuted and injured while working on an electrical breaker box at the Hospital. Hernandez sued the Hospital for negligence, gross negligence, and premises liability.

         The Hospital filed a motion for traditional summary judgment claiming it was not liable for Hernandez's injury pursuant to § 95.003 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 95.003. Hernandez filed a response and two supplemental responses.

         The trial court denied the Hospital's motion for summary judgment, and the Hospital filed a motion for reconsideration. In its motion for reconsideration, the Hospital argued that Hernandez did not (1) respond to its Chapter 95 argument, (2) submit any evidence or argue that the Hospital retained any control of the work performed by a contractor, or (3) argue or submit any evidence that the Hospital had actual knowledge of the alleged dangerous condition. See id. Hernandez filed a response and supplemental response to the motion for reconsideration generally stating that his exhibits showed that "the evidence of [the Hospital's] control is overwhelming and conclusive." After holding a hearing, the trial court granted the Hospital's motion for reconsideration and motion for summary judgment. This appeal followed.[1]

         II. Standard of Review

         In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If the movant's motion and summary judgment proof facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A defendant seeking a traditional motion for summary judgment must either conclusively disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied).

         In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). 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. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755-56 (Tex. 2007).

         III. Chapter 95

         "Chapter 95 enunciates a general rule of non-liability for property owners when a contractor or subcontractor or an employee of a contractor or subcontractor is injured while performing repairs or construction." Rosa v. Mestena Operating, LLC, 461 S.W.3d 181, 182-87 (Tex. App.-San Antonio 2014, pet. denied). Under Chapter 95, the property owner is not liable for a plaintiff's injuries if the claim is for personal injury that "arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement" unless the plaintiff establishes that the property owner (1) exercised or retained some control over the manner in which the work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and (2) had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn the plaintiff of that danger or condition. Tex. Civ. Prac. & Rem. Code Ann. § 95.003. The property owner has the initial burden to establish that Chapter 95's general rule applies to the plaintiff's claim. Montoya v. Nichirin-Flex U.S.A., Inc., 417 S.W.3d 507, 511 (Tex. App.-El Paso 2013, no pet.). The burden then shifts to the plaintiff to establish control and knowledge. See id.

         Thus, as applicable here, the Hospital had the initial burden of conclusively establishing (1) it is a property owner, (2) Hernandez alleged that the Hospital is liable for Hernandez's personal injury, (3) Hernandez was an employee of a contractor, and (4) Hernandez's claim arises from a condition or use of an improvement to the Hospital's property where J.L. Electric was constructing, repairing, renovating, or modifying the improvement. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. ยง 95.003. Once the Hospital met its burden, the burden then shifted to Hernandez to establish that the Hospital (1) exercised or retained some control over the manner in which the work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and (2) had actual knowledge of the danger or condition ...


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