Boyd Biggs v. Bradford Management Company and State Teachers Retirement System of Ohio ( 2018 )

Affirmed and Opinion Filed July 31, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00869-CV
BOYD BIGGS, Appellant
V.
BRADFORD MANAGEMENT COMPANY AND STATE TEACHERS RETIREMENT
SYSTEM OF OHIO, Appellees
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-02424
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Bridges
Boyd E. Biggs appeals from the trial court’s order denying his motion for partial summary
judgment and granting summary judgment in favor of Bradford Management Company and the
State Teachers Retirement System of Ohio (STRS). In two issues, Biggs argues the trial court
erred in granting summary judgment in favor of Bradford and STRS and denying his motion for
partial summary judgment. We affirm the trial court’s judgment.
The summary judgment record shows that STRS owns a 508,000-square-foot building in
Fort Worth, Texas, which is managed by Bradford. In 2004, STRS leased the building to Cott
Beverages, Inc., which conducts its operations at approximately 250 to 300 buildings across the
United States and puts beverages into bottles and cans. At the time Cott leased the building, it had
100 skylights/smoke vents, and Cott added 100 more. In June 30, 2011, Biggs was a Cott
employee and was assigned to clean air conditioning coils on the roof of the building. While
attempting to unwind a water hose, Biggs walked backward and fell through a skylight. Biggs fell
thirty-five feet to the concrete floor below and was injured.
In February 2013, Biggs filed his original petition alleging claims of negligence and
premises liability against Bradford and STRS. By September 2015, Biggs had filed his seventh
amended petition, and Bradford and STRS filed a traditional and no-evidence motion for summary
judgment in which they argued, among other things, they owed no duty to Biggs “for any open
and obvious previously existing allegedly dangerous conditions on the leased property.”
In November 2015, Biggs filed a response to Bradford and STRS’s motion for summary
judgment. The response was supported, in part, by Biggs’s deposition testimony. Biggs testified
he had been on the roof approximately thirty times during the four months he worked at Cott, and
“you can’t avoid” seeing the skylights on the roof. Biggs testified he used the same hose and “most
of the times” he was on the roof he “pulled it around the way [he was] doing the day of the
incident.” Biggs “had been told that there had been a hailstorm before,” and he was aware roofing
contractors had been on the roof after the hailstorm. Biggs testified the skylight should have had
a warning regarding its structural integrity. According to Biggs, the skylight was “the equivalent
of a piece of Saran Wrap stretched over an open hole.”
In August 2016, Biggs filed his eleventh amended original petition in which he asserted
premises liability and negligence claims against Bradford and STRS. Biggs alleged Bradford and
STRS had a contractual obligation under the lease with Cott, to keep the roof of the building in
good order, condition, and repair. Biggs alleged Bradford and STRS received actual notice of hail
damage to the roof, which included fractures and/or holes in the skylight through which Biggs fell,
but failed to take any action “beyond applying duct tape” despite their duty to “secure and make
safe the unguarded and fractured skylight.” Based on these facts, Biggs alleged he was an invitee
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at the building, and Bradford and STRS owed him a duty to use ordinary care, including the duty
to protect and safeguard him from unreasonably dangerous conditions on the premises or to warn
of their existence. Biggs alleged he suffered injuries as a direct and proximate result of his fall
caused by the dangerous condition of the premises, and Bradford and STRS knew or should have
known the dangerous condition existed and was caused by a hailstorm five weeks before. Biggs
alleged Bradford and STRS had a duty to repair the skylight, were negligent in permitting the
dangerous condition to exist, and negligently or willfully failed to warn Biggs of the dangerous
condition, even though Bradford and STRS knew or should have known of the dangerous
condition. Moreover, Biggs alleged, Bradford and STRS had a non-delegable duty as owner of
the premises to keep the premises safe and were therefore “jointly and severally liable for the
negligence of any contractor or subcontractor whose prior negligence created or contributed to the
dangerous condition,” including several named roofing companies. Regarding Bradford and
STRS’s own negligence, among other things, Biggs alleged they were negligent in failing to
maintain the premises, warn Biggs and Cott of the extremely dangerous condition, take proper
steps to ensure the area was safe, properly inspect the area when they knew or should have known
of the dangerous condition, and safely conduct reconstruction or remodeling of the roof or repair
the hail damage.
In February 2017, Biggs filed a motion for partial summary judgment alleging, among
other things, that STRS and its agents were obligated to keep the skylight in good order, condition,
and repair both before and after the May 24, 2011 hail damage. Also in February 2017, Bradford
and STRS filed their first amended motion for summary judgment. The motion argued Cott’s lease
made Cott responsible for all building repairs and maintenance. After the May 24, 2011 hail event,
Bradford sent a roofing contractor, Cardinal Roofing, to inspect the roof, and Cardinal found black
duct tape on some of the skylights. The motion was supported by the affidavit of Cardinal
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employee Kirk Lopeman, who stated Cardinal would not have placed black duct tape on any of
the skylights because Cardinal used a black and white “peel-and-stick” material to make temporary
repairs. Lopeman stated that the duct tape placed on the skylights was put there by someone within
the maintenance department at Cott.
As grounds for summary judgment, the motion stated, among other things, the following:
As a matter of law, since [Biggs] was an employee of a tenant, [STRS] and
[Bradford], as the leasing agent standing in place of [STRS], owed no duty to
[Biggs] for any open and obvious previously existing allegedly dangerous
conditions on the property.
On April 21, 2017, the trial court signed an order denying Biggs’s motion for partial summary
judgment and granting Bradford and STRS’s motion for summary judgment. The trial court’s
order stated the Texas Supreme Court has declined imposing a duty on the part of an owner of a
warehouse for premises conditions that are open and obvious; the skylights were a condition of
the premises which were open and obvious; and, furthermore, Bradford and STRS had no duty to
warn Biggs against his own dangerous activities. This appeal followed.
In his first issue, Biggs argues the trial court erred in granting summary judgment for
Bradford and STRS because the condition of the skylight was not open and obvious and they had
a duty to use reasonable care in repairing and maintaining the skylight.
We review the trial court’s decision to grant summary judgment de novo. Tex. Mun. Power
Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). A party seeking a no-
evidence summary judgment must assert that no evidence exists as to one or more of the essential
elements of the nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Henning v. OneWest Bank FSB, 405 S.W.3d 950, 957 (Tex.
App.—Dallas 2013, no pet.). “The motion must state the elements as to which there is no
evidence.” TEX. R. CIV. P. 166a(i); Henning, 405 S.W.3d at 957. Once the movant specifies the
elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on
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the challenged elements. See TEX. R. CIV. P. 166a(i); Henning, 405 S.W.3d at 957; see also S.W.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We review a no-evidence motion for
summary judgment under the same legal sufficiency standard used to review a directed verdict.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Flood v. Katz, 294 S.W.3d
756, 762 (Tex. App.—Dallas 2009, pet. denied). Our inquiry focuses on whether the nonmovant
produced more than a scintilla of probative evidence to raise a fact issue on the challenged
elements. See King Ranch, 118 S.W.3d at 751; Flood, 294 S.W.3d at 762. Evidence is no more
than a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact.
King Ranch, 118 S.W.3d at 751. If a no-evidence motion for summary judgment and a traditional
motion for summary judgment are filed which respectively asserts the plaintiff has no evidence of
an element of its claim and alternatively asserts that the movant has conclusively negated that same
element of the claim, we address the no-evidence motion for summary judgment first. Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
To prevail on a traditional summary judgment motion, a movant has the burden of proving
that he is entitled to judgment as a matter of law and that there is no genuine issue of material fact.
TEX. R. CIV. P. 166a(c); Cunningham v. Tarski, 365 S.W.3d 179, 185-86 (Tex. App.—Dallas 2012,
pet. denied). When a defendant moves for summary judgment, he 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.
Cunningham, 365 S.W.3d at 186. In determining whether there is a genuine fact issue precluding
summary judgment, evidence favorable to the nonmovant is taken as true and the reviewing court
makes all reasonable inferences and resolves all doubts in the nonmovant’s favor. Id.; Nixon v.
Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985). A matter is conclusively
established if reasonable minds cannot differ as to the conclusion to be drawn from the evidence.
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Cunningham, 365 S.W.3d at 186; see also City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.
2005). Once a movant conclusively establishes an affirmative defense, the burden of production
shifts to the nonmovant to present summary judgment evidence that raises a fact issue on at least
one element of the movant’s affirmative defense or an exception or defense to that affirmative
defense. Cunningham, 365 S.W.3d at 186.
The Texas Supreme Court has “declined to impose a duty for premises conditions that are
open and obvious, regardless of whether such conditions are artificial or naturally occurring.”
4Front Engineering Solutions, Inc. v. Rosales, 505 S.W.3d 905, 912 (Tex. 2016). In 4Front, the
plaintiff was injured on defendant’s premises when an electrician hired by defendant to repair a
sign drove the scissor lift in which plaintiff was riding off the sidewalk, causing the lift to topple
and injure plaintiff. See id. at 906-07. The court declined to impose a duty for premises conditions
that were open and obvious “even if the sidewalk’s edge was dangerous and did proximately cause
the accident.” Id. at 912.
Here, as the trial court determined, the skylights were an open and obvious condition of
the property. Biggs testified he had been up on the roof approximately thirty times, and he knew
“you can’t avoid” seeing the skylights. Biggs knew there had been a hailstorm, and roofing
contractors had been on the roof after the hailstorm. Biggs himself described the skylight as “the
equivalent of a piece of Saran Wrap stretched over an open hole.” Because the dangerous nature
of the skylights was open and obvious, Bradford and STRS owed no duty to Biggs. See id. at 912.
Therefore, the trial court did not err in granting summary judgment in favor of Bradford and STRS
on Biggs’s claims arising out of his fall through the skylight. See TEX. R. CIV. P. 166a(i); 4Front,
505 S.W.3d at 912; King Ranch, 118 S.W.3d at 750-51. We overrule Biggs’s first issue. Because
of our disposition of Biggs’s first issue, we need not address his second issue in which he argues
the trial court erred in denying his motion for partial summary judgment.
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We affirm the trial court’s judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
170869F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BOYD BIGGS, Appellant On Appeal from the 134th Judicial District
Court, Dallas County, Texas
No. 05-17-00869-CV V. Trial Court Cause No. DC-13-02424.
Opinion delivered by Justice Bridges.
BRADFORD MANAGEMENT Justices Brown and Boatright participating.
COMPANY AND STATE TEACHERS
RETIREMENT SYSTEM OF OHIO,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees BRADFORD MANAGEMENT COMPANY AND
STATE TEACHERS RETIREMENT SYSTEM OF OHIO recover their costs of this appeal from
appellant BOYD BIGGS.
Judgment entered July 31, 2018.
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