Melinda Polk v. New Green Meadow, L.L.C. ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00406-CV
MELINDA POLK APPELLANT
V.
NEW GREEN MEADOW, L.L.C. APPELLEE
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Melinda Polk appeals the trial court’s order granting summary
judgment in favor of New Green Meadow, L.L.C. (New Green Meadow). We will
affirm.
Background Facts
Magnus Lofgren is the owner of New Green Meadow, who owns and
operates an apartment complex called Green Meadow Apartments (the
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See Tex. R. App. P. 47.4.
Apartments). In November 2007, Lofgren hired Fred Herrera to repair a
staircase in the complex. Specifically, Herrera had to remove and replace two of
the concrete steps. Herrera provided his own equipment, tools, and supplies.
The parties do not dispute that Herrera was an independent contractor.
On the day Herrera was working at the Apartments, Polk went to visit a
friend who lived in the complex. Polk’s friend lived on the second floor, which
was accessible by the staircase being repaired. The staircase was not cordoned
off or otherwise blocked to prevent people using it. Herrera had removed some
steps halfway up the staircase, but Polk claims not to have noticed. Herrera
stood by the stairs ―working on something.‖ Herrera watched Polk near the
stairs, but believing that she was going into a first-floor apartment, turned back to
his work. Polk started up the stairs, ―looking straight ahead,‖ and fell through the
hole left by the removed steps.
Polk sued New Green Meadow and Herrera. New Green Meadow filed a
traditional and no evidence motions for summary judgment. It argued that
Herrera was an independent contractor, that Polk was injured by a dangerous
condition caused by Herrera’s work, and thus, New Green Meadow owed no duty
to Polk as a matter of law. The trial court granted New Green Meadow’s motion
and severed New Green Meadow from the case. This appeal followed.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
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light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant 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. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to
summary judgment on an affirmative defense if the defendant conclusively
proves all the elements of the affirmative defense. Frost Nat’l Bank v.
Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b),
(c). To accomplish this, the defendant-movant must present summary judgment
evidence that conclusively establishes each element of the affirmative defense.
See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,
310 (Tex. 2009) (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
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2006)). If the nonmovant brings forward more than a scintilla of probative
evidence that raises a genuine issue of material fact, then a no-evidence
summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex.
2009).
Discussion
In her first point, Polk argues that New Green Meadow retained control of
the premises while Herrera worked and thus owed Polk a duty to warn her of the
dangerous condition of the stairs. Generally, an owner does not have a duty to
see that an independent contractor performs his work in a safe manner.
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). However, an owner
may be liable when he exercises control over the independent contractor’s work.
Id.; see also Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001)
(―The general contractor’s duty of care is commensurate with the control it retains
over the independent contractor’s work.‖). The right to control ―must be more
than a general right to order the work to start or stop, to inspect progress or
receive reports.‖ Redinger, 689 S.W.2d at 418. It includes ―the power to direct
the order in which the work shall be done, or to forbid it being done in a manner
likely to be dangerous.‖ Id. (quoting Restatement (Second) of Torts § 414, cmt. a
(1965)).
There is no evidence that New Green Meadow retained control over the
staircase while Herrera worked on it. Lofgren stated in an affidavit that neither he
nor anyone else from New Green Meadow directed Herrera’s work. Neither was
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there evidence that Lofgren was overseeing Herrera or inspecting his work.
Further, there was no evidence that New Green Meadow knew or should have
known that Herrera was performing his work in an allegedly unsafe manner. See
Dow Chem. Co. v. Bright, 89 S.W.3d 602, 609 (Tex. 2002) (―This Court has
recognized that a general contractor has actually exercised control of a premises
when the general contractor knew of a dangerous condition before an injury
occurred and approved acts that were dangerous and unsafe.‖); cf. Koko Motel,
Inc. v. Mayo, 91 S.W.3d 41, 47 (Tex. App.—Amarillo 2002, pet. denied) (holding
that the right to control is irrelevant when, as in that case, the owner knew of the
dangerous condition). The dangerous condition of the stairs (i.e., the hole
created by the removed steps) did not exist prior to Herrera’s work. Herrera had
done work for New Green Meadow before, and his work had been satisfactory. It
is undisputed that Lofgren was not near the staircase at the time of the fall, and
had to be notified of the incident at his office elsewhere on the complex. There is
no evidence that Lofgren had inspected the stairs while Herrera worked or that
anyone informed New Green Meadow that Herrera had not cordoned off the
staircase. Because there is no evidence that Lofgren retained the right to control
the staircase, and because an owner’s duty of care ―is commensurate with the
control it retains over the independent contractor’s work,‖ Lee Lewis Const., 70
S.W.3d at 783, there is no evidence that New Green Meadow owed Polk a duty
of care. The trial court therefore did not err in granting New Green Meadow’s
motion for summary judgment. We overrule Polk’s first issue.
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In Polk’s second issue, she argues that there is a fact question as to
whether the dangerous condition was open and obvious, but whether the
condition was open and obvious is irrelevant. New Green Meadow had
relinquished control of the premises and did not control Herrera’s work; it
therefore did not owe a duty to Polk for any condition created by Herrera’s work,
regardless of whether that condition was open and obvious. See Shell Oil Co. v.
Khan, 138 S.W.3d 288, 295 (Tex. 2004) (noting that an owner has no duty in
regards to defects created by an independent contractor’s work ―unless it retains
a right to control the work that created the defect‖); Abalos v. Oil Dev. Co. of
Tex., 544 S.W.2d 627, 631 (Tex. 1976) (―[W]here the activity is conducted by,
and is under the control of, an independent contractor, and where the danger
arises out of the activity staff, the responsibility or duty is that of the independent
contractor, and not that of the owner of the premises.‖). It is undisputed that the
condition did not exist prior to Herrera assuming control of the stairwell; thus,
New Green Meadow cannot be held liable under a duty to warn of a pre-existing
condition. See Shell Oil, 138 S.W.3d at 295 (―With respect to existing defects, an
owner or occupier has a duty to inspect the premises and warn of concealed
hazards the owner knows or should have known about.‖). We overrule Polk’s
second issue.
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Conclusion
Having overruled both of Polk’s issues, we affirm the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: June 2, 2011
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