John Jurasin v. Dillon Resources, Inc. D/B/A Sunset Transportation, Inc. ( 2012 )


Menu:
  •                                  MEMORANDUM OPINION
    No. 04-12-00202-CV
    John JURASIN,
    Appellant
    v.
    DILLON RESOURCES, INC. d/b/a Sunset Transportation, Inc.,
    Appellee
    From the 73rd Judicial District Court, Bexar County, Texas
    Trial Court No. 2009-CI-14693
    Honorable Barbara Hanson Nellermoe, Judge Presiding
    Opinion by:       Marialyn Barnard, Justice
    Sitting:          Catherine Stone, Chief Justice
    Karen Angelini, Justice
    Marialyn Barnard, Justice
    Delivered and Filed: November 7, 2012
    AFFIRMED
    John Jurasin injured his back removing a tarp from a flatbed trailer. Jurasin sued Dillon
    Resources, Inc., alleging it breached its duty to provide him with a safe workplace and with the
    equipment necessary to safely perform his job. The trial court granted a no-evidence motion for
    summary judgment in Dillon’s favor which we affirm.
    04-12-00202-CV
    BACKGROUND
    Jurasin, an experienced truck driver, applied to work as a driver for Sunset
    Transportation, Inc.       Jurasin drove flatbed trailers which Sunset employees pre-loaded and
    covered with tarps. After Jurasin arrived at a delivery destination, he would remove the tarps to
    enable other workers to access and unload the materials being delivered. Most of the tarps used
    by Sunset did not have handles, and Jurasin complained about the absence of the handles on two
    occasions to the Sunset supervisor overseeing the loading of the flatbed trailers.
    Jurasin was injured while removing a tarp which did not have handles. The tarp was wet
    from rain as was the ground, and Jurasin slipped while removing the tarp, causing him to twist
    and injure his back. Jurasin sued, naming Dillon Resources, Inc. d/b/a Sunset Transportation,
    Inc. as his employer. In his petition, Jurasin alleged that he was working for Sunset which was
    operated by Dillon Resources. In his deposition, Jurasin stated that both companies’ names were
    on his paychecks, and he heard that Dillon Resources was a staff leasing company. 1
    Dillon Resources moved for a traditional and no-evidence summary judgment. In its no-
    evidence motion, Dillon Resources asserted that no evidence exists that it owed a duty to Jurasin,
    that it breached any duty Jurasin alleged that it owed him, or that any damages were proximately
    caused to Jurasin by any such breach. The trial court granted the no-evidence motion.
    DISCUSSION
    Because Dillon Resources is a workers’ compensation non-subscriber, Jurasin was
    required to establish negligence by Dillon Resources to recover on his claim. Werner v. Colwell,
    1
    If a staff leasing company does not elect to obtain workers’ compensation insurance, both the license holder and
    the client company can be considered co-employers. TEX. LAB. CODE ANN. § 91.042(d) (West Supp. 2012); Port
    Elevator-Brownsville, L.L.C. v. Casados, 
    358 S.W.3d 238
    , 242 (Tex. 2012) (noting employee may have more than
    one employer within the meaning of the Texas Workers’ Compensation Act); Texas Workers’ Compensation Ins.
    Fund v. Del Indus., Inc., 
    35 S.W.3d 591
    , 594 (Tex. 2000) (“But if the staff leasing company does not elect to obtain
    workers’ compensation insurance, both the staff leasing company and the client company must notify the Texas
    Workers’ Compensation Commission and are subject to common law suits without the benefit of certain defenses.”)
    -2-
    04-12-00202-CV
    
    909 S.W.2d 866
    , 868 (Tex. 1995). “The mere occurrence of an event causing injury is not
    evidence of negligence.” Allsup’s Convenience Stores, Inc. v. Warren, 
    934 S.W.2d 433
    , 436
    (Tex. App.—Amarillo 1996, writ denied); see also Hang On II, Inc. v. Tuckey, 
    978 S.W.2d 281
    ,
    284 (Tex. App.—Fort Worth 1998, no pet.) (“The mere occurrence of an injury at work, without
    more, is not probative evidence that Tuckey’s harm occurred as a result of Hang–On’s
    negligence.”). “In order to establish negligence, evidence must be produced to establish a duty, a
    breach of that duty, and damages proximately caused by the breach.” 
    Werner, 909 S.W.2d at 869
    .
    The existence of a duty is a question of law. Nabors Drilling U.S.A., Inc. v. Escoto, 
    288 S.W.3d 401
    , 404 (Tex. 2009). “Employers are not insurers of their employees.” Kroger Co. v.
    Elwood, 
    197 S.W.3d 793
    , 795 (Tex. 2006). “In the employment context, an employer has a duty
    to ‘warn an employee of the hazards of employment and provide needed safety equipment.’”
    Nabors Drilling U.S.A., 
    Inc., 288 S.W.3d at 412
    (quoting Jack in the Box, Inc. v. Skiles, 
    221 S.W.3d 566
    , 568 (Tex. 2007)). “However, the employer ‘owes no duty to warn of hazards that
    are commonly known or already appreciated by the employee.’” 
    Id. An employer
    also has no
    duty to provide equipment that is unnecessary to a job’s safe performance. Kroger 
    Co., 197 S.W.3d at 795
    . “And, when an employee’s injury results from performing the same character of
    work that employees in that position have always done, an employer is not liable if there is no
    evidence that the work is unusually precarious.” 
    Id. In this
    case, Jurasin admitted in his deposition that he was aware of the hazard of
    removing tarps without handles; therefore, the hazard was already appreciated by him. See
    Nabors Drilling U.S.A., 
    Inc., 288 S.W.3d at 412
    . As a result, Dillon Resources did not have a
    duty to warn Jurasin of that hazard. 
    Id. -3- 04-12-00202-CV
    Moreover, no evidence was introduced to establish that tarps with handles are
    “commonly used in, or had been established by industry standards or customs as a safety
    measure for,” removing tarps from flatbed trailers, “or that a reasonably prudent employer would
    have provided such instrumentality.” Allsup’s Convenience Stores, 
    Inc., 934 S.W.2d at 438
    .
    “Nor was there any medical evidence that” a tarp with handles “would have prevented the
    injuries sustained by” Jurasin. 
    Id. Instead, removing
    tarps was a task performed regularly by
    Sunset drivers, and no evidence was presented to show that removing tarps was an unusually
    dangerous job. See Brookshire Groc. Co. v. Goss, 
    262 S.W.3d 793
    , 795 (Tex. 2008) (citing
    Kroger 
    Co., 197 S.W.3d at 795
    ). In addition, no evidence was presented to show that other
    drivers sustained similar injuries. See 
    id. Under the
    facts presented in this case, we hold Dillon Resources had no duty to warn
    Jurasin of the hazard of removing a tarp without handles, and no evidence was presented to show
    that tarps with handles were equipment necessary for the safe performance of Jurasin’s job.
    Instead, the evidence showed that Jurasin’s injury resulted from performing the same character
    of work that employees in that position have always done.
    CONCLUSION
    The trial court’s judgment is affirmed.
    Marialyn Barnard, Justice
    -4-