Sergio Fraire v. Budget Rent-A-Car of El Paso, Inc. , 441 S.W.3d 523 ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
SERGIO FRAIRE, §
No. 08-12-00280-CV
Appellant, §
On Appeal from the
v. §
County Court at Law #3
BUDGET RENT-A-CAR OF EL PASO, §
INC., of El Paso County, Texas
§
Appellee. (Cause No. 2010-3086)
§
OPINION
Sergio Fraire appeals the trial court’s take-nothing grant of hybrid summary judgment in
favor of his former employer, Budget Rent-A-Car of El Paso, Inc. (“Budget”),1 in a non-
subscriber negligence action. In his sole issue on appeal, Fraire contends that the trial court erred
in granting summary judgment because he established that Budget breached its duty to warn or
instruct him about the risks inherent in repairing a broken lift gate on the back of a large truck.
Fraire also argues that there are disputed issues of material fact surrounding Budget’s breach of
the non-delegable general duty to provide adequate equipment, and on the issue of causation, that
preclude summary judgment.
1
Neal Remz, another Budget employee, is listed as an appellee in Fraire’s notice of appeal. However, Remz was
non-suited prior to the summary judgment rendered in this cause. As such, Remz is not a proper party to this appeal.
For the following reasons, we affirm in part, reverse and remand in part.
BACKGROUND
Factual History
This case arises out of workplace injuries Fraire sustained in September 2009 while
repairing a 24-foot rental truck with a broken roll-up door designed to secure the truck’s rear
cargo area. At the time of the accident, Fraire had been employed with Budget for fifteen years,
first serving as a mechanic for three years before being promoted to service manager. As service
manager, Fraire supervised between ten and twelve people, including mechanics, rental agents,
and employees responsible for cleaning and preparing rental cars. Fraire’s job responsibilities
also included helping with the cleaning of cars, taking inventory, and handling paperwork from
Budget’s East El Paso office and its administrative headquarters near the airport. Fraire was not
assigned to perform any mechanical duties as a service manager.
Prior to Fraire’s injury, several of Budget’s rental trucks were in need of repair and
Budget’s regular mechanic had not shown up to work for several days. Budget General Manager
Neal Remz, who was Fraire’s direct supervisor, asked Fraire why there was a backlog of trucks
and told Fraire that the trucks “needed to get out.” Because sending the trucks to the dealership
for repairs would cause an even longer delay and increase Budget’s backlog, Fraire decided to
repair the trucks himself. Fraire stated in a deposition that he had only fixed a roll-up cargo door
once before. He also stated that “[t]he company never trained any employees to work on trucks.”
Prior to joining Budget, Fraire had worked as a mechanic for several years.
Another supervisor and a service agent, neither of whom were mechanics, assisted Fraire
with the repair job. Remz testified that the service agent’s job consisted of “wash[ing],
vacuum[ing], gas[ing] the cars and . . . turn[ing] them around, get[ting] them ready for re[-
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]rental.” Fraire then asked “to help me raise up the door. And, once I had it there, I had my
equipment to hold it there with clamps, vise grips and stuff like that. And I told them to hold it.”
In order to reach the door mechanism and replace a spring inside it, Fraire retrieved a plastic
milk crate from inside the shop, placed the crate inside the truck’s cargo area, and stood on it.
Fraire contended at deposition that Budget was negligent because it did not have any “mini
stepladders” or other similar equipment he could have used in making the repair. When asked at
deposition whether Budget had any stools or stepladders available to employees, Budget
President Mike Maloney testified that “[w]e mostly have A-frame ladders.” Remz testified that
Budget had a five- or six-foot stepladder that “certainly would have fit into the truck, if need be,
and could have [been] used inside the truck[,]” but that it did not possess any smaller step-stool-
type ladders. Carlos Hernandez, another Budget employee, stated during his deposition that
employees had found a small, six-inch step stool left in one of the rental cars, but that Budget
had not purchased that stool and he was unsure if the stool was available at the time Fraire
sought to repair the truck.
To see the mechanism pin better, Fraire stepped from the milk crate inside the truck to an
A-frame step ladder located outside the truck. Fraire stated in his affidavit that “[p]lacing a
ladder inside the truck to make the repair would have placed me in an awkward position being
that the ladder base of the ladder would have been placed next to the edge of the truck bed and
half my body would have [to] hang off the ladder to make the repair.” Fraire maintained that
when he transferred his weight from one surface to the other, either the “milk crate or the ladder
gave way causing me to fall and injury [sic] myself.” Fraire suffered torn tendons and ligaments
requiring surgery, takes medication for chronic pain, and currently cannot lift his arm above his
head. Budget terminated Fraire’s employment several months after his injuries.
3
The ladder Fraire used had several written warnings on the side; however, those warnings
are partially illegible in the copies submitted for the summary judgment record. The Budget
employee’s manual also contains a section laying out ladder safety standards.
Procedural History
In his Original Petition, Fraire alleged fourteen alternate theories of negligence against
Budget broadly pertaining to, inter alia, training, supervision, warnings and adoption of safety
rules, inadequate working conditions, and negligence per se stemming from OSHA regulation
violations. Budget moved for hybrid summary judgment on no-evidence and traditional grounds.
It asserted generally in the no-evidence portion of its motion2 that “[t]here is no evidence of
negligence on the part of the Defendant.” In the traditional summary judgment portion of its
motion, Budget claimed that it was entitled to judgment as a matter of law because: (1) Budget
had no duty to warn or adopt safety rules because it was not engaged in complex or hazardous
business; (2) Budget had no duty to warn Fraire of the risks inherent in repairing the truck
because he was an experienced mechanic; (3) Budget did not breach its non-delegable duty to
furnish a safe work place and proper instrumentalities because it provided several different
ladders for use; (4) Budget was not the proximate cause of Fraire’s injuries because Remz never
specifically asked Fraire to fix the truck; and (5) Fraire was the sole proximate cause of his
injuries because he could have exited the truck before climbing the ladder. The trial court
granted Budget’s motion for summary judgment and issued a take-nothing order. The court did
not specify whether it granted summary judgment on traditional or no-evidence grounds.
DISCUSSION
In his sole issue on appeal, Fraire contends the trial court incorrectly rendered summary
2
In its appellate brief, Budget specified that Ground #1 as set out in an introductory passage of its motion
represented the entirety of its no-evidence point, and that Grounds #2 through #4 represented the traditional
summary judgment points.
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judgment3 on his negligence claim4 because Budget owed him a duty to warn or instruct on the
dangers involved with repairing the truck, given that mechanical repair was outside the scope of
his job duties. He also maintains that his claim should have survived summary judgment
because there are fact issues pertaining to whether Budget breached its non-delegable duty to
provide a safe workplace and adequate instrumentalities, as well as issues related to proximate
cause.
Budget counters that it owed Fraire no duty to warn or instruct because even though
Fraire may have acted outside his normal job duties, he was an experienced mechanic
knowledgeable of all risks and proper repair techniques who did not need a warning. Budget
further responds that it provided safe instrumentalities for Fraire’s use, that it never instructed
Fraire to make the repairs, and that Fraire moving laterally between a milk crate in the truck’s
cargo area and a ladder located outside the truck during the repair when safer methods of transfer
were available show that Fraire’s actions were the sole proximate cause of his injuries as a matter
of law.
Standard of Review
We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390
3
Budget concedes in its brief that “[t]he no evidence portion pertained to the general premise that there was no
evidence of negligence by Budget.” We note that a no-evidence summary judgment “motion must state the
elements as to which there is no evidence . . . [and] must be specific in challenging the evidentiary support for an
element of a claim of defense; paragraph (i) does not authorize conclusory motions or general no-evidence
challenges to an opponent’s case.” Timpte Industries, Inc.v. Gish, 286 S.W.3d 306, 310 (Tex. 2009)(internal
quotation marks omitted)(citing TEX.R.CIV.P. 166a(i) cmt. 1997); see also TEX.R.CIV.P. 166a historical note (“The
comment appended to these changes, unlike other notes and comments in the rules, is intended to inform the
construction and application of the rule.”).
Since the trial court could not have granted no-evidence summary judgment where Budget’s no-evidence
motion did not explicitly challenge specific elements of negligence as required by TEX.R.CIV.P. 166a, we read this
appeal as a challenge on traditional summary judgment grounds only.
4
Budget also moved for summary judgment, in Ground #5 of its motion, on Fraire’s claim that he was discriminated
against for filing for benefits under the Employee Retirement Income Secuity Act of 1974 (“ERISA”), arguing that
the claim was barred by Texas Mexican Railway Co. v. Bouchet, 963 S.W.2d 52, 55 (Tex. 1998). Because the trial
court granted summary judgment in favor of Budget, and because Fraire did not challenge that issue on appeal, any
challenges on ERISA grounds are waived.
5
(Tex.App.--Corpus Christi 2002, no pet.). In assessing summary judgment, we view the
evidence in the summary judgment record in the light most favorable to the non-movant,
disregarding all contrary evidence and inferences. KPMG Peat Marwick v. Harrison County
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant may prevail on traditional
summary judgment grounds only when it conclusively establishes that “there is no genuine issue
of material fact and that it is entitled to judgment as a matter of law . . . .” American Tobacco
Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). “A fact question exists when the
summary judgment record contains inconsistent or conflicting summary-judgment proof.”
Salazar v. Ramos, 361 S.W.3d 739, 746 (Tex.App.--El Paso 2012, pet denied). A fact is material
if its existence “might affect the outcome of the suit under the governing law[,]” and “[a]
material fact issue is genuine if the evidence is such that a reasonable jury could find the fact in
favor of the non-moving party.” Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.--San
Antonio 1998, pet. denied)(internal quotation marks omitted)(citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). “[Traditional]
[s]ummary judgment is proper if the defendant disproves at least one element of each of the
plaintiff’s claims . . . or establishes all elements of an affirmative defense to each claim.”
American Tobacco Co., Inc., 951 S.W.2d at 425.
Negligence
Because Budget is a non-subscriber to the Texas Workers’ Compensation Insurance
Coverage scheme, Fraire must prove that Budget was negligent to recover damages.
TEX.LAB.CODE ANN. § 406.033(d)(West Supp. 2013). “A negligence cause of action has three
elements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately resulting from the
breach.” Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). Based on our review of the
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arguments presented by both sides, we disarticulate the issues presented and recast them with
reference to the three elements of negligence for conceptual clarity. We first address the issue of
whether Budget owed Fraire a specific duty to warn of the risks associated with undertaking
repair. We then address whether summary judgment is precluded by evidence of breach of the
general non-delegable duty to provide a safe work environment, including safe instrumentalities.
We end with a discussion on the issue of causation.
Duty to Warn
In the first sub-part of his sole appeal issue (“Sub-Point One”), Fraire contends that
Budget owed him a duty to warn of the hazards associated with making the repair to the rental
truck and instruct on proper safety rules. We disagree.
“The threshold inquiry in a negligence case is whether the defendant owes a legal duty to
the plaintiff.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). An employer
has a general duty to “use ordinary care in providing a safe work place.” Werner v. Colwell, 909
S.W.2d 866, 869 (Tex. 1995). Subsidiary to the general duty to provide a safe workplace is the
specific duty to “warn[] employees of the hazards of their employment” in certain circumstances.
Allen v. A & T Transportation Co., Inc., 79 S.W.3d 65, 70 (Tex.App.--Texarkana 2002, pet.
denied). “Whether there exists a duty to warn or instruct is a question of law for the court to
determine.” Id. at 69 n.4.
“[A]n employer’s duty to warn an employee of a danger arises when: (1) the
employment is dangerous or complex; and (2) the employer is aware of the danger and has
reason to know the employee is not.” Jack in the Box, Inc., v. Skiles, 221 S.W.3d 566, 568 (Tex.
2007). An employer also has a duty to warn of foreseeable hazards arising from activities that
are “not normally part of [the employee]’s job.” Kroger Co. v. Keng, 976 S.W.2d 882, 887
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(Tex.App.--Tyler 1998, pet. granted), aff’d, 23 S.W.3d 347 (Tex. 2000); see also Skiles, 221
S.W.3d at 568 (distinguishing Keng). However, an employer does not owe a duty to warn of
common, obvious hazards or those “already appreciated by the employee[,]” Skiles, 221 S.W.3d
at 568, nor is the employer require to warn or instruct an employee “who is experienced in the
work he is assigned.” Allen, 79 S.W.3d at 70; W.E. Grace Mfg. Co. v. Arp, 311 S.W.2d 278, 281
(Tex.Civ.App.--Dallas 1958, writ ref’d n.r.e.). “[A]ge and experience of the employee should be
considered in measuring the duty of the employer.” Allen, 79 S.W.3d at 70.
In Skiles, the Texas Supreme Court rejected a duty to warn claim brought by a truck
driver who injured himself while attempted to remove food cargo from a delivery truck’s trailer
by using a ladder to climb over a broken lift gate in the back of the truck. See 221 S.W.3d at
567. In spite of Skiles’ claim that he felt time-pressured by a supervisor to remove the cargo, the
Court noted that Skiles “voluntarily made the decision to find a ladder, jump into the trailer, and
unload the hamburger meat” instead of calling for a dealer mechanic, and that “[t]he dangers
associated with the use of a ladder to climb over a lift gate are common and obvious to anyone.”
Id. at 569. As such, his employer had no duty to warn him of the dangers of ladder use. Id.
Here, the facts are similar to Skiles. Fraire undertook the repairs voluntarily in order to
expedite the rental process, and the dangers of mounting an A-frame ladder from an elevation
would be commonly known to a reasonable person. Id.at 567 Further, although making
mechanical repairs fell outside the scope of his job description at the time, no duty arose under
Keng because Fraire had been a mechanic for a number of years before Budget hired him. See
Allen, 79 S.W.3d at 70. Fraire’s duty to warn claim is without merit.5
Sub-Point One is overruled.
Breach of the Duty to Furnish Adequate Equipment
5
Friare conceded at oral argument that the duty to warn could not be sustained on these facts.
8
In his second major sub-part (“Sub-Point Two”), Fraire argues that summary judgment
was improper because there are fact issues surrounding whether Budget breached its duty to
provide the necessary instrumentalities to repair the truck. We agree.
“It is well established that an employer has certain nondelegable and continuous duties to
his employees[,] . . . [including] the duty to furnish reasonably safe instrumentalities with which
employees are to work.” Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 187 n.45
(Tex. 2004), citing Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975). However, an
employer “has no duty to provide equipment or assistance that is unnecessary to the job’s safe
performance.” Kroger Co. v. Elwood, 197 S.W.3d 793, 795 (Tex. 2006).
Budget, in its brief, urges us to affirm summary judgment because “[t]he simple fact is
that Fraire needed no additional equipment; Fraire only needed to have exited the truck before
climbing the ladder that he placed outside the truck.” Fraire counters that the only way he could
have made the repair was to set the ladder he used on the ground next to the truck bed, set the
milk crate inside the truck bed, and then move from the milk crate to the ladder to reach the
broken mechanism. Fraire claims that if he set the ladder up inside the truck itself, he would
have also been likely to hurt himself, since “[p]lacing a ladder inside the truck to make the repair
would have placed me in an awkward position being that the ladder base . . . would have been
placed next to the edge of the truck bed and half my body would have [to] hang off the ladder”
and over the edge of the truck during the repair.
We need not resolve this factual dispute. Whether Fraire could have feasibly dismounted
from the truck, climbed the ladder on the ground, and still been able to reach the door
mechanism to make the repair is a question for the jury. Likewise, whether the other ladders in
Budget’s possession at the time of Fraire’s injury could have made it possible for Fraire to make
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the repair without moving laterally between the milk crate and the A-frame ladder outside the
truck is a jury question. Budget has failed to conclusively establish that it is entitled to judgment
as a matter of law on this issue. A material fact issues exists about the adequacy of the
equipment Budget furnished to make repairs. Summary judgment on this element is improper.
Sub-Point Two is sustained.
Although we have concluded there was a genuine issue of material fact on the issue of
breach, we must also address causation, since conclusive negation of a critical element results in
proper rendition of summary judgment. See American Tobacco Co., 951 S.W.2d at 425. Fraire
maintains that he has provided more than a scintilla of evidence that his injuries were
proximately caused by Budget’s inadequate equipment, and that Budget cannot establish, as a
matter of law, that he was the sole proximate cause of his injuries. We agree.
“The components of proximate cause are cause in fact and foreseeability.” Marathon
Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). “The test for cause in fact, or ‘but for
causation,’ is whether the act or omission was a substantial factor in causing the injury ‘without
which the harm would not have occurred.’” Id. (internal citation omitted). “A finding of cause
in fact may be based on either direct or circumstantial evidence, but cannot be supported by mere
conjecture, guess, or speculation.” Id. “Foreseeability means that a person of ordinary
intelligence would have anticipated the danger his or her negligence creates.” Excel Corp. v.
Apodaca, 81 S.W.3d 817, 820 (Tex. 2002). To defeat a defendant’s claim that the plaintiff was
the sole proximate cause of his own injury, “all the plaintiff has to do is show that some
negligence of the employer caused his injury.” Hall v. Timmons, 987 S.W.2d 248, 254
(Tex.App.--Beaumont 1999, no pet.), citing Holiday Hills Retirement and Nursing Center, Inc. v.
Yeldell, 686 S.W.2d 770, 775 (Tex.App.--Fort Worth 1985), rev’d on other grounds, 701 S.W.2d
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243 (Tex. 1985).
Here, we find there is a fact issue on proximate cause. A person of ordinary intelligence
would have anticipated that Remz’s instruction that the trucks needed to “get out” and the strain
on business created by the regular mechanic’s absence would lead to Frarie or another employee
attempting to make the truck repairs himself, thereby triggering the duty to furnish safe
equipment. Whether Fraire’s injuries were proximately caused by his failure to use an alternate
safer repair method (the existence of which is itself a fact issue) or whether his decision to move
laterally between surfaces at an elevation because Budget did not furnish appropriate equipment
caused his injuries is a proper jury question. Budget failed to establish that Fraire was the sole
proximate cause of his own injuries as a matter of law. As such, a material fact question existed
for the jury on all the elements of negligence stemming from Budget’s duty to provide adequate
equipment. The trial court’s rendition of summary judgment was error. Sub-Point Three is
sustained.
Appellant’s Issue One is sustained in part and overruled in part. We affirm the trial
court’s summary judgment ruling on the issue of duty to warn or issue safety instructions. We
reverse the trial court’s grant of summary judgment on the issue of Budget’s duty to furnish
adequate equipment and remand for further proceedings consistent with this opinion.
March 28, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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