Raymond F. Herrmann, Mary B. Herrmann and Herrmann Construction, Inc. v. Goff Custom Homes, L.P. ( 2013 )

AFFIRMED; and Opinion Filed August 23, 2013.
In The
S
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00318-CV
RAYMOND F. HERRMANN, MARY B. HERRMANN,
AND HERRMANN CONSTRUCTION, INC., Appellants
V.
GOFF CUSTOM HOMES, L.P., Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-10-07910-D
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion by Justice Lang-Miers
Raymond F. Herrmann (individually Herrmann), Mary B. Herrmann, and Herrmann
Construction, Inc. (collectively HCI) appeal from a summary judgment in favor of Goff Custom
Homes, L.P. in a lawsuit involving a construction accident. 1 In a single issue, appellants contend
that the trial court erred by granting summary judgment in favor of Goff Custom Homes because
Goff Custom Homes owed a duty to Herrmann to inspect the premises and warn him of
dangerous conditions on the property For the following reasons, we affirm the trial court’s
judgment.
1
Although all plaintiffs below appeal the court’s summary judgment, the only complaint on appeal is that Goff Custom Homes owed a duty
to Herrmann. Mary Herrmann and HCI do not argue for relief separately from Herrmann.
BACKGROUND
Herrmann, the sole owner of HCI, and Don Bourgeois, HCI’s sole employee, were
working as trim carpenters at a new home construction site in Dallas, Texas. Goff Custom
Homes was the general contractor on the project and had hired HCI as an independent contractor
to do the inside wood trim work on the house. The house under construction was three stories
with a basement and an elevator.
In October 2009, Herrmann and Bourgeois removed a loose guardrail on the elevator
shaft on the second floor and replaced it with a two by four board installed on the inside of the
elevator shaft. Three months later, Herrmann was inspecting the elevator shaft on the second
floor and placed his hand on the guardrail for support as he leaned to look inside the elevator
shaft. The guardrail gave way and Herrmann fell from the second floor to the bottom of the
elevator shaft. He suffered serious injuries as a result of the fall. Following the accident, the
guardrail found at the bottom of the elevator shaft was a board measuring two by six, not two by
four.
HCI, Herrmann, and Mary Herrmann sued Goff Custom Homes and John Reynolds, the
superintendent on the job, for claims of negligence, negligence per se, and premises liability.
They later dropped the negligence per se claims and nonsuited their claims against Reynolds.
Goff Custom Homes filed a combined no-evidence and traditional motion for summary judgment
on the ground that it owed no duty to Herrmann. 2 The trial court granted summary judgment in
favor of Goff Custom Homes, from which appellants appeal.
2
Neither party argues that chapter 95 of the civil practice & remedies code applies here. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 95.001–.004 (West 2011).
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STANDARD OF REVIEW
A no-evidence summary judgment motion must be granted if the moving party asserts
that there is no evidence of one or more specified elements of a claim on which the nonmovant
has the burden of proof at trial and the nonmovant produces no summary judgment evidence that
raises a genuine issue of material fact on those elements. TEX. R. CIV. P. 166a(i) & cmt.; Sudan
v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam). We examine the record in the light
most favorable to the nonmovant and indulge every reasonable inference and resolve any doubts
against the movant. Sudan, 199 S.W.3d at 292; City of Keller v. Wilson, 168 S.W.3d 802, 823
(Tex. 2005). If the nonmovant presents evidence that would enable reasonable and fair-minded
jurors to differ in their conclusions, the motion must be denied. Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008) (per curiam).
We review a traditional summary judgment de novo to determine whether a party’s right
to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175
(Tex. App.––Dallas 2000, no pet.). A party moving for traditional summary judgment under rule
of civil procedure 166a(c) is charged with the burden of establishing that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c).
If the movant discharges its burden, the burden shifts to the nonmovant to present to the trial
court any issues that would preclude summary judgment. Hackberry Creek Country Club, Inc. v.
Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 50 (Tex. App.––Dallas 2006, pet.
denied).
Whether Goff Custom Homes owed Herrmann a duty to inspect the guardrail is a
question of law that we review de novo. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d
401, 404 (Tex. 2009); Hernandez v. Hammond Homes, Ltd., 345 S.W.3d 150, 153 (Tex. App.—
Dallas 2011, pet. denied).
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DUTY
In their sole issue, appellants contend that the trial court erred by granting summary
judgment in favor of Goff Custom Homes because Goff Custom Homes owed Herrmann a duty
to warn of dangerous preexisting conditions on the premises. Appellants contend that the
summary judgment evidence established that the faulty guardrail was a concealed premises
defect, that it was in existence prior to Herrmann’s entry onto the premises on the day of the
accident, and that it was unrelated to Herrmann’s work on the premises. Consequently,
appellants argue, Goff Custom Homes was responsible for inspecting and warning Herrmann
about the faulty guardrail.
Applicable Law
Premises defects are divided into two categories: (1) defects existing when an
independent contractor enters, and (2) defects created by the independent contractor’s work.
Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004). With respect to the first category of
defects, a general contractor has a duty to inspect the premises and warn of concealed hazards
the owner knows or should know about. Id.; see also Gen. Elec. Co. v. Moritz, 257 S.W.3d 211,
215 (Tex. 2008); Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex. 1999); Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); Hernandez, 345 S.W.3d at 156.
Analysis
Goff Custom Homes moved for no-evidence and traditional summary judgment arguing
that it did not owe a duty to Herrmann as a matter of law. It argued that “Goff would have had to
have had either a contractual right of control or have exercised actual control over the means,
methods, and details of Herrmann’s work with regard to his inspection of the elevator, or of the
work of the other independent contractor that put up the guardrail that [appellants] allege failed.”
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And it argued that the evidence conclusively proved that Goff Custom Homes did not have a
contractual right to control Herrmann’s or any other independent contractor’s work.
In response, appellants argued that Goff Custom Homes had a duty to warn Herrmann “of
the concealed defects related to the guardrail.” They argued that Herrmann was not injured by a
defect created by his own work activity, that the “defective nature of the guardrail was a
concealed defect,” that Goff Custom Homes had control over the construction site, and that the
evidence conclusively showed that Goff Custom Homes did not conduct safety inspections.
On appeal, appellants contend that the faulty guardrail in this case is a defect that falls
into the first category of premises defects because it was a preexisting concealed defect. They
contend that the defect was preexisting because the faulty guardrail was already installed when
Herrmann arrived for work the morning of the accident. And they contend that the defect was
concealed because it was not readily apparent that the guardrail would not support Herrmann’s
weight.
Appellants rely on Griffin v. Shell Oil Co., 401 S.W.3d 150 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied), to support their contention that Goff Custom Homes had a duty to warn
of the faulty guardrail. We do not agree that Griffin supports appellants’ arguments.
In that case, Griffin was instructed to enter a dimly lit storage room containing
improperly stored and unsecured materials with standing water on the floor to inspect drainage
issues. He slipped on the floor and was injured. He sued the project manager and property owner
alleging that they failed to warn him of the dangerous conditions in the storage room. The trial
court granted summary judgment in favor of the defendants, but the court of appeals reversed.
The court of appeals concluded “there is at least a fact issue as to whether the materials that
caused [Griffin’s] fall and injuries were ‘hidden’ or ‘concealed’ [and] Griffin presented evidence
that [the premises owner] controlled the storage room, the storage of materials, and the general
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conditions” in the storage room. Id. at 161. In reaching its conclusion, the court relied on
summary judgment evidence showing the defendants controlled the use of the storage room. See
generally id. at 159–63.
The evidence is undisputed in this case that Goff Custom Homes did not control the work
on the elevator shaft. Appellants argue, however, that they were not required to present evidence
of Goff Custom Homes’s control of the elevator shaft because the guardrail was a preexisting
concealed defect about which Goff Custom Homes had a duty to warn. But the types of premises
defects that fall into the category of preexisting and concealed for which there is a duty to warn
are those defects that are “dangerous in their own right and independent of action by another[.]”
Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 224–25 (Tex. 1999).
Here, Herrmann admitted that the guardrail was replaced by another independent
contractor. As a result, it would not be “independent of action by another[.]” It is also undisputed
in this case that Herrmann was inspecting the elevator shaft, placed his hand on the guardrail for
support as he leaned into the elevator shaft, the guardrail gave way, and he fell. There is no
evidence that the guardrail itself posed a danger; it was not until Herrmann put his weight on it
for support that it gave way and caused his injuries. See, e.g., id. at 225 (concluding that
premises owner’s crane posed no danger until independent contractor’s employees put crane into
operation and decedent’s head was crushed in “pinch point” of crane); Lopez v. Homebuilding
Co., Inc., No. 01-04-00095-CV, 2005 WL 1606544, at *3 (Tex. App.—Houston [1st Dist.] July
7, 2005, no pet.) (mem. op.) (concluding that open balcony from which complainant fell did not
pose danger until complainant fell from its edge); Durbin v. Culberson Cnty., 132 S.W.3d 650,
660–61 (Tex. App.—El Paso 2004, pet. denied) (concluding that power pole did not pose danger
until independent contractor changed light bulb with the power on and stuck a metal object into
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bulb socket). Consequently, the guardrail was not “dangerous in [its] own right.” See Coastal
Marine Serv., 988 S.W.2d at 225.
Appellants also contend that Goff Custom Homes is responsible for inspecting the work
of all the independent contractors at the job site to ensure there are no dangerous conditions
resulting from their work. But a premises owner generally does not have a duty to make sure an
independent contractor safely performs his work. Koch Refining Co., 11 S.W.3d at 155. And a
premises owner has no duty to its independent contractor’s employees unless it “reserves the
right to forbid the independent contractor from performing its work in a dangerous manner.” Id.
In other words, the owner has no duty with regard to defects created by an independent
contractor unless the owner retains a right to control the work that created the defect. Id.;
Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 476–77 (Tex. App.—El Paso 2008, no
pet.). The type of control required is more than “a general right to order the work stopped or
resumed, to inspect its progress or to receive reports, to make suggestions or recommendations
. . . [but] must be such a retention of a right of supervision that the contractor is not entirely free
to do the work in his own way.” Koch Refining Co., 11 S.W.3d at 155–56; Coastal Marine Serv.,
988 S.W.2d at 226.
Under the circumstances of this case, Goff Custom Homes did not owe a duty to inspect
and warn unless it controlled the aspects of the independent contractor’s work responsible for the
defect. See Koch Refining Co., 11 S.W.3d at 155. And the summary judgment evidence
conclusively established that Goff Custom Homes did not maintain such control.
We conclude that Goff Custom Homes did not owe a duty to Herrmann to inspect the
guardrail and warn him about its dangerous condition. Consequently, we further conclude that
appellants did not raise a fact issue about Goff Custom Homes’s duty, and the trial court did not
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err by granting summary judgment in favor of Goff Custom Homes. We resolve appellants’ sole
issue against them and affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
120318F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RAYMOND F. HERRMANN, MARY B. On Appeal from the County Court at Law
HERRMANN, AND HERRMANN No. 4, Dallas County, Texas.
CONSTRUCTION, INC., Appellants Trial Court Cause No. CC-10-07910-D.
Opinion delivered by Justice Lang-Miers,
No. 05-12-00318-CV V. Justices Moseley and Bridges, participating.
GOFF CUSTOM HOMES, L.P., Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee, Goff Custom Homes, L.P., recover its costs of this appeal
from appellants, Raymond F. Herrmann, Mary B. Herrmann, and Herrmann Construction, Inc.
Judgment entered this 23rd day of August, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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