SANDRA LEDEZMA, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE ESTATE OF ABDON LEYVA, DECEASED, AND AS NEXT FRIEND OF HIS FOUR MINOR SURVIVING CHILDREN, Appellants
SEAN F. TURNER, Appellee
Appeal from the 189th District Court Harris County, Texas
Trial Court Case No. 2017-04916
consists of Justices Kelly, Hightower, and Countiss.
RICHARD HIGHTOWER, JUSTICE
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.
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.
summary judgment evidence consists of the deposition
testimony of Turner and Luis Zamora, who Turner designated as
a responsible third party in appellants' suit.
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.
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 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
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
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.
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.
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.
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.
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
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.
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.
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,