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Ledezma v. Turner

Court of Appeals of Texas, First District

October 1, 2019

SANDRA LEDEZMA, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF ABDON LEYVA, DECEASED, AND AS NEXT FRIEND OF HIS FOUR MINOR SURVIVING CHILDREN, Appellants
v.
SEAN F. TURNER, Appellee

          On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2017-04916

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM OPINION

          RICHARD HIGHTOWER, JUSTICE

         Abdon Leyva fell to his death when a tree limb broke while he was removing Christmas lights in a tree at appellee Sean Turner's residence. When he fell, Leyva was not using any safety equipment, such as a harness that was available, and Turner was not there when the accident occurred.

         Leyva's widow and children (appellants) sued Turner for wrongful death, asserting negligence and premises liability claims. Turner filed a combined traditional and no-evidence summary judgment motion, which the trial court granted. We affirm.

         Background

         The summary judgment evidence consists of the deposition testimony of Turner and Luis Zamora, who Turner designated as a responsible third party in appellants' suit.

         Turner testified that several years before Leyva's January 9, 2017 accident, Zamora had become Turner's yard maintenance man after initially doing irrigation and landscaping work for Turner. Turner said that Leyva worked for Zamora and that he did not know Leyva personally, but he had seen him working with Zamora at Turner's residence. Zamora explained that Leyva had his own yards, and Zamora helped Leyva with Leyva's yards while Leyva helped Zamora with Zamora's yards.

         Zamora and Leyva also did some tree trimming for Turner on two or three occasions before Leyva's accident. Turner did not provide any guidance to Zamora about safety equipment for tree trimming, nor did he instruct or provide Zamora with any safety protocols. Turner observed that Zamora and Leyva used a harness and ropes when they did the tree trimming, but Turner had not discussed with Zamora whether they needed to use them. Turner left the details of the tree trimming to Zamora's discretion.

         Because Zamora's tree work had gone well, for Christmas in 2015, Turner asked Zamora if he would install Christmas lights in the trees in Turner's front yard. Zamora responded that he would do it and that he had done it before at other houses; he described it as "something easy to do." Zamora estimated that he had hung Christmas lights for ten to fifteen other customers. Turner bought the lights and instructed Zamora to install them in the two large trees in the front yard, in two little magnolia trees, and on bushes. Turner left up to Zamora how to install the lights. Leyva helped Zamora with the lights this first time. To remove the lights, Turner instructed Zamora to just cut them off the limbs because he was going to buy new lights for the next year. In previous years when Turner had put up the lights himself, he had found that it was easier to just cut the lights.

         Turner agreed that putting lights in the trees was a dangerous job even for someone with knowledge and equipment. Turner did not think of himself as qualified to determine proper safety equipment, and he expected Zamora and Leyva to have the proper equipment to take care of themselves. Because Leyva worked for Zamora, Turner believed Leyva's safety was Zamora's responsibility.

         Other than the lights and extension cords, Turner did not provide any equipment to Zamora and Leyva. Zamora testified that he had a harness and ropes for working in trees but did not have a hard hat. Zamora had never had any formal training in the use of a harness; he learned by observing someone else. Zamora said that Turner never asked him about using safety equipment while installing the lights, adding that Turner saw him and Leyva using the harness.

         The next year-for Christmas in 2016-Turner had Zamora put up the lights again, but this time only in the two large trees. In working at Turner's house on the Christmas lights, Zamora did not consider himself to be Leyva's "boss" because Leyva had helped him the year before and Zamora did not "need to tell him what he had to do, or how to do [it]." Zamora did not consider that Turner had hired both him and Leyva to do the work because Zamora was the person in charge of Turner's yard. Turner paid Zamora between $1,200 and $1,500 ($500 per tree plus a bonus) to install and remove the lights. Zamora testified that Turner paid him $1,000 and that he split it with Leyva.

         In late November of 2016, Zamora and Leyva started putting up the lights at the top and then worked their way down. They were putting the lights up higher than they had the year before, and that shocked Turner. And because they had started higher, they ran out of lights and Turner had to buy more. Zamora testified that Turner's instructions for installing the lights were how far up in the trees to put them and to wrap the lights tightly or closely together around the branches. Zamora said that Turner told him which branches he wanted lights on and "to be careful and to go as high as we can go." They put the lights up higher than they had the year before. Zamora did not consider how Turner wanted the lights done to be dangerous.

         Turner testified that, when he observed Zamora and Leyva in the trees putting up the lights, Leyva always had on a harness, but Zamora did not use a harness a majority of the time. On at least one occasion, Turner warned Zamora to be careful because he was on a branch without a harness and it concerned Turner. Zamora confirmed that Turner had told him to be careful when working in the trees. Zamora testified that he and Leyva used the harness and ropes when they installed the lights. He explained that, unlike removing the lights, wrapping the lights tightly around the branches has to be done slowly. Zamora said that, in installing the lights, Leyva was up in the trees with a harness and that Zamora passed him the lights.

         On January 4, 2017, Turner communicated with Zamora by text for Zamora to let him know when he would be taking down the lights. On January 9, 2017, Turner texted Zamora again for Zamora to let him know when he would be removing the lights, and in response, Zamora informed Turner that Leyva had fallen out of the tree and was being taken to a hospital by ambulance. Turner testified that, according to Zamora, Leyva had finished removing the lights from one of the trees, had come down but then went back up in the tree without the harness to retrieve something, and it was then that Leyva fell.

         Turner did not know that Zamora and Leyva were at his residence that day, and Turner had not given Zamora instructions on how to remove the lights- whether to cut them off the branches or to unwrap them; nor had Turner provided Zamora with any safety warnings before he was to remove the lights. Turner had never communicated with Leyva at all. Zamora testified that Turner did not give them any instructions on removing the lights and that Turner was not there when they were removing the lights.

         Zamora testified that he removed the lights from one tree and Leyva removed them from the other tree. He said that he and Leyva did not use the harness while removing the lights because, unlike installing them, it was easy to remove them. Zamora did admit that it was safer to use the harness and that they had the harness with them that day.

         Zamora testified that he had told Leyva to use the harness that day because the branches on Leyva's tree were "a little bit more straight," explaining that when the branches are "a little bit inclined," "you can hang on to them." Leyva, however, did not use the harness while removing the lights that day. Zamora testified that Leyva "would do whatever he wanted. I would tell him to do this or to do that. If he wanted to, he would do so. If not, he ...


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