Sandra Ledezma, Individually, and as Representative of the Estate of Abdon Leyva v. Sean F. Turner ( 2019 )

Opinion issued October 1, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00700-CV
———————————
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
MEMORANDUM OPINION
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
2
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.
3
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
4
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
5
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
6
he wanted to, he would do so. If not, he wouldn’t . . . .” According to Zamora, if
Leyva had climbed with the harness, he would not have fallen.
Zamora testified that when the branch broke and Leyva fell, he did not see it
happen because he was in one tree removing lights and Leyva was in the other tree.
Zamora heard a crack, turned around, and saw Leyva and a broken branch on the
ground. Zamora said that Leyva fell because the branch broke. The branch was
about twenty feet long, and Leyva fell from a height of approximately twenty feet.
Zamora did not know how the branch broke or how far out on the limb
Leyva was when it broke. He also said that when they had installed the lights (in
late November of 2016), the branch was “in good condition” or it would have
broken then. But Zamora later testified that the trees had frozen during a two-to-
three-day freeze before January 9, 2017, and that the branch had died. He further
testified, however, that even though there had been a freeze, he did not think it was
a danger to be in the trees. Zamora said that he reached the conclusion that the
freeze “possibly” caused the branch to break when, after talking to family and
friends at Leyva’s funeral, he learned that there had been a freeze. Zamora said that
Turner had not warned him that there had been a freeze.
Zamora testified that because that tree lost its leaves in the winter, he could
not know if the branch was dead and did not think it was dead. He said that there
was no way to know whether the branch was dead, further stating, “I think nobody
7
could have known.” Zamora testified that there was no way to tell if a branch is
dead until you put weight on it and it breaks.
Zamora did not think that Turner was responsible for what happened to
Leyva. He thought that “nobody” was responsible because “it was an accident, and
in that case, you should blame the tree. That’s just nature.”
Analysis
On appeal, the appellants challenge the trial court’s granting Turner’s
summary judgment motion. We review summary judgments de novo. City of
Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). To
prevail on a traditional summary judgment motion, the movant bears the burden of
proving that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); City of Richardson, 539
S.W.3d at 258–59. A defendant moving for summary judgment must conclusively
negate at least one essential element of the plaintiff’s cause of action. Sci.
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Lujan v. Navistar
Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). If
the movant establishes its entitlement to summary judgment, the burden then shifts
to the nonmovant to raise a genuine issue of material fact. See Katy Venture, Ltd. v.
Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam); see also
Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex.
8
2014) (“[I]f the movant does not satisfy its initial burden, the burden does not shift
and the non-movant need not respond or present any evidence.”).
A party may also, after adequate time for discovery, move for no-evidence
summary judgment on the ground that no evidence exists of one or more essential
elements of a claim on which the adverse party bears the burden of proof at trial.
TEX. R. CIV. P. 166a(i). The burden then shifts to the nonmovant to produce
evidence raising a genuine issue of material fact on the elements specified in the
motion. Id.; Mack Trucks, Inc v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The
trial court must grant the motion unless the nonmovant produces summary
judgment evidence raising a fact issue on the challenged elements. TEX. R. CIV. P.
166a(i).
We review the evidence presented in the motion and response in the light
most favorable to the nonmovant, crediting favorable evidence if reasonable jurors
could and disregarding contrary evidence unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431
(Tex. 2017).
Turner moved for traditional and no-evidence summary judgment. As to the
appellants’ premises-liability claim, Turner admitted that Leyva was an invitee but
9
asserted that there was no evidence that Turner failed to warn or make safe a
condition that Turner knew or should have known of and that caused an
unreasonable risk of harm. Turner also sought summary judgment because the risk
of harm while working in a tree is “open and obvious” and therefore the risk of
harm is not unreasonable.
Turner moved for summary judgment on appellants’ negligence claim,
asserting that there was no evidence that he owed Leyva a duty, that he breached a
duty, or that any breach caused the appellants’ injuries.1
Appellants contend in part in their first issue that there are fact issues on
whether Turner had knowledge of the dangerous conduct on his premises and
whether Turner exercised control over Leyva and Zamora’s work. In their second
issue, appellants assert that there is a fact issue on whether Turner knew or should
have known of the dangerous condition. We begin with appellants’ second issue.
Premises liability
Generally, a premises owner has a duty to protect invitees from, or warn
them of, conditions posing unreasonable risks of harm if the owner knew of the
conditions or, in the exercise of reasonable care, should have known of them.
1
Turner also moved for summary judgment on the ground that he owed no duty to
Leyva, an independent contractor, under Chapter 95 of the Civil Practice and
Remedies Code. Turner concedes on appeal that Chapter 95 is inapplicable.
Therefore, appellants’ third issue, which addresses Chapter 95, is moot.
10
Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) (per curiam) (citing TXI
Operations, L.P. v. Perry, 278 S.W.3d 763, 764–65 (Tex. 2009)).
The elements of an invitee’s premises-liability claim are:
(1) the plaintiff was an invitee;
(2) the defendant was a possessor of the premises;
(3) a condition of the premises created an unreasonable risk of harm to
the plaintiff;
(4) the defendant knew or reasonably should have known of the
condition (actual or constructive knowledge);
(5) the defendant failed to exercise ordinary care to protect the invitee
from danger by failing to adequately warn the plaintiff of the
condition or by failing to make the condition reasonably safe; and
(6) the defendant’s failure was a proximate cause of injury to the
plaintiff.
See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); LMB, Ltd.
v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006); Seideneck v. Cal Bayreuther
Assocs., 451 S.W.2d 752, 753–54 (Tex. 1970); see also Henkel, 441 S.W.3d at
251–52 (citing CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000)). An
owner or occupier of a premises does not owe an invitee the duty of an insurer.
CMH Homes, 15 S.W.3d at 101.
The threshold issue in a premises-liability claim is whether the defendant
had actual or constructive knowledge of the allegedly dangerous condition. Hall v.
Sonic Drive–In of Angleton, Inc., 177 S.W.3d 636, 644 (Tex. App.—Houston [1st
11
Dist.] 2005, pet. denied). “Ordinarily, an unreasonably dangerous condition for
which a premises owner may be liable is the condition at the time and place injury
occurs, not some antecedent situation that produced the condition.” Brookshire
Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006). The duty owed to an
invitee in a premises-liability case “depends on actual or constructive knowledge
of a dangerous condition that a reasonable inspection would reveal,” and as such,
“an owner or occupier is not liable for deterioration of its premises unless it knew
of or by reasonable inspection would have discovered the deterioration.” CMH
Homes, 15 S.W.3d at 101.
The Texas Supreme Court has noted that “there is no one test for
determining actual knowledge that a condition presents an unreasonable risk of
harm,” but courts “generally consider whether the premises owner has received
reports of prior injuries or reports of the potential danger presented by the
condition.” Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008)
(per curiam). The “actual knowledge” required for premises liability “is of the
dangerous condition at the time of the accident, not merely of the possibility that a
dangerous condition can develop over time.” City of Dallas v. Thompson, 210
S.W.3d 601, 603 (Tex. 2006) (per curiam). “Awareness of a potential problem is
not actual knowledge of an existing danger.” City of Denton v. Paper, 376 S.W.3d
762, 767 (Tex. 2012) (quoting Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex.
12
2010)). Furthermore, “[c]onstructive knowledge is a substitute in the law for actual
knowledge.” CMH Homes, 15 S.W.3d at 102.
Constructive knowledge is “what a person after a reasonable inspection
ought to know or have reason to know.” Duncan v. First Tex. Homes, 464 S.W.3d
8, 16 (Tex. App.—Fort Worth 2015, pet. denied). Constructive knowledge can be
established by evidence that it is more likely than not that the dangerous condition
had existed long enough to give the premises owner a reasonable opportunity to
discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002);
Bendigo v. City of Houston, 178 S.W.3d 112, 114 (Tex. App.—Houston [1st Dist.]
2005, no pet.). Temporal evidence, or evidence of the length of time the dangerous
condition existed, is the best indication of whether the premises owner had a
reasonable opportunity to discover and remedy the situation. Reece, 81 S.W.3d at
816.
We recently noted the following:
“‘The inviter . . . will not be held liable for defects which would not
have been disclosed by a reasonably careful inspection, even though
no such inspection has been made.’” Kansas City So. R.R. v. Guillory,
376 S.W.2d 72, 76 (Tex. Civ. App.—Beaumont 1964, writ ref’d
n.r.e.) (quoting 65 C.J.S. Negligence § 51).
Because the core of the duty [to an invitee] depends on actual or
constructive knowledge of a dangerous condition that a
reasonable inspection would reveal, it follows that an owner or
occupier is not liable for deterioration of its premises unless it
knew of or by reasonable inspection would have discovered the
deterioration.
13
Many building materials will, over time, deteriorate and
require repair or replacement. That does not necessarily mean
that the owner or occupier has created a dangerous condition or
that the owner has actual or constructive knowledge of a
dangerous condition.
Daenen, 15 S.W.3d at 101 (citations omitted).
Carter v. Tarantino Props., Inc., No. 01-17-00843-CV, 2019 WL 346895, at *2–3
(Tex. App.—Houston [1st Dist.] Jan. 29, 2019, no pet.) (mem. op.).
The undisputed summary judgment evidence reflects that Leyva fell and
died because a branch broke while he was removing Christmas lights. The only
evidence of what caused the branch to break is Zamora’s opinion that it “possibly”
broke because a recent freeze may have caused the branch to die. Zamora also
testified that the branch was not dead when they installed the lights in late
November of 2016—it was “in good condition” or it would have broken then.
Assuming that the branch had died because of the recent freeze, there is no
evidence that Turner had actual knowledge of the allegedly dangerous condition—
that the branch was dead and could break—at the time of Leyva’s accident. There
is no evidence that Turner had constructive knowledge that the branch was dead
and could break or that a reasonable inspection would have discovered the
allegedly dangerous condition. The only evidence pertaining to constructive
knowledge is Zamora’s testimony that, because the tree lost its leaves in the winter,
he could not know if the branch was dead and did not think it was dead. He said
14
that there was no way to know whether the branch was dead, further stating, “I
think nobody could have known.” Zamora agreed that there was no way to tell if a
branch is dead until weight was put on it and it broke. We therefore hold that there
is no evidence that Turner knew or should have known of the allegedly dangerous
condition.2 The trial court did not err in granting summary judgment on appellants’
premises liability claim. We overrule issue two.
Negligence
Depending on the circumstances, a person injured on another’s property may
have either a negligence claim or a premises-liability claim against the property
owner. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). If
the injury is the result of a contemporaneous, negligent activity on the property,
ordinary negligence principles apply. Id.; Keetch v. Kroger Co., 845 S.W.2d 262,
264 (Tex. 1992) (“Recovery on a negligent activity theory requires that the person
have been injured by or as a contemporaneous result of the activity itself rather
than by a condition created by the activity.”). If the injury is the result of the
property’s condition, rather than an activity, premises-liability principles apply.
Jenkins, 478 S.W.3d at 644.
2
On the record before us, we decline to hold that Turner had a duty to perform a
reasonable inspection of his trees before Zamora and Leyva removed the lights.
Moreover, appellants do not point to any Texas authority imposing such a duty on
premises owners.
15
Negligent activity claims “encompass[] a malfeasance theory based on
affirmative, contemporaneous conduct by the owner that caused the injury,” but
premises liability claims “encompass[] a nonfeasance theory based on the owner’s
failure to take measures to make the property safe.” Del Lago, 307 S.W.3d at 776.
Negligence and premises-liability claims are based on independent theories of
recovery, and they are not interchangeable. United Scaffolding, Inc. v. Levine, 537
S.W.3d 463, 471 (Tex. 2017). The supreme court has explained:
Negligent-activity and premises liability claims “involve closely
related but distinct duty analyses.” W. Invs., Inc. v. Urena, 162
S.W.3d 547 550 (Tex. 2005). In a negligent-activity case, a property
owner or occupier must “do what a person of ordinary prudence in the
same or similar circumstances would have . . . done,” whereas a
property owner or occupier in a premises liability case must “use
ordinary care to reduce or eliminate an unreasonable risk of harm
created by a premises condition which the owner or occupier [of land]
knows about or in the exercise of ordinary care should know about.”
Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753
(Tex. 1998) (alteration in original) (citations and internal quotation
marks omitted); see also TXI Operations, L.P. v. Perry, 278 S.W.3d
763, 765 (Tex. 2009) (“[A] premises owner or occupier must either
adequately warn of the dangerous condition or make the condition
reasonably safe.”).
Id.
Appellants’ negligence claim includes an allegation that Turner failed to
warn Leyva of the dangerous condition on the property. Because this specific
negligence allegation is based on the allegedly dangerous condition of the
16
property, appellants are limited to their premises-liability theory of recovery.3 See
id. at 471–72; Jenkins, 478 S.W.3d at 644; see also Parrish v. SMG, No. 01-16-
00934-CV, 2017 WL 6043536, at *6 (Tex. App.—Houston [1st Dist.] Dec. 7,
2017, no pet.) (mem. op.) (“This is a claim based on the allegedly unsafe and
dangerous condition of the property. We therefore apply premises-liability
principles to Parrish’s claim, and not principles of ordinary negligence.”) (citations
omitted); E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57 (Tex. App.—
Houston [14th Dist.] 2014, pet. dism’d) (“Because Roye’s claim is based on an
unsafe or dangerous condition of the property, we hold that [he is limited] to a
premises liability theory of recovery.”). Turner therefore owed no duty to warn
Leyva under this negligence theory, and the trial court properly granted Turner’s
no-evidence motion for summary judgment.
Appellants’ other negligence allegation is that Turner directed Leyva to
perform work in a dangerous manner without regard to his safety. Liability for a
negligent-activity theory “requires that the person have been injured by or as a
contemporaneous result of the activity itself rather than by a condition created by
the activity.” Oncor Elec. Delivery Co. v. Murillo, 449 S.W.3d 583, 591–92 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied) (quoting Keetch, 845 S.W.2d at 264).
3
If appellants could assert such a negligence claim, it would fail for the reason we
held that appellants’ premises-liability claim fails—there is no evidence that
Turner knew or should have known of the allegedly dangerous condition, thus
obviating any duty to warn.
17
It is undisputed that Turner was not present when Leyva was removing the lights
and did not know that Leyva and Zamora were on his premises. Assuming without
deciding that Turner owed any duty to Leyva, there is no evidence that Turner was
engaged in any contemporary activity—negligent or otherwise—when Leyva fell
from the tree. See Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 910
(Tex. App.—Houston [14th Dist.] 2009, no pet.). The trial court therefore properly
granted Turner’s no-evidence motion for summary judgment on this negligence
allegation.
We overrule appellants’ first issue.
Conclusion
We affirm the judgment of the trial court.
Richard Hightower
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
18