Bobby Duncan v. First Texas Homes and First Texas Homes, Inc. , 464 S.W.3d 8 ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00464-CV
BOBBY DUNCAN APPELLANT
V.
FIRST TEXAS HOMES AND FIRST APPELLEES
TEXAS HOMES, INC.
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 141-237976-09
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OPINION
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Appellant Bobby Duncan sued Appellees First Texas Homes and First
Texas Homes, Inc. (collectively, First Texas) for injuries suffered by Duncan
during the course and scope of his employment with First Texas. In three issues,
Duncan appeals from the trial court’s order granting summary judgment in favor
of First Texas. We reverse and remand.
I. Background
Duncan was employed as a construction superintendent by First Texas.
On June 8, 2007, he was injured when he fell down a set of exterior stairs while
leaving an office trailer on a construction site located in Frisco, Texas. The U.S.
Department of Labor Occupational Safety and Health Administration (OSHA)
inspected the construction site in September 2007. On December 3, 2007,
OSHA issued a “Citation and Notification of Penalty” to First Texas for several
violations of the Occupational Safety and Health Act. Among the citations was a
citation for a violation of 29 C.F.R. § 1926.1052(a)(4) because “the swing of the
job trailer’s door reduced the effective width of the platform [at the top of the
stairs] to 14 inches.” 29 C.F.R. § 1926.1052(a)(4) (2007) (“Where doors or gates
open directly on a stairway, a platform shall be provided, and the swing of the
door shall not reduce the effective width of the platform to less than 20 inches (51
cm).”).
The stairs and platform were constructed in March 2005. From that time
until the accident—a period of two years and three months—Duncan went up
and down the steps at least four times per day, five days a week without any
problems. When leaving the trailer, Duncan normally turned around and closed
and locked the trailer door—which swung outward over the platform—before
walking across the platform and down the stairs. This left Duncan with the entire
forty-nine-and-a-half-inch width of platform to walk on. On the day of the
accident, however, Duncan exited the trailer while simultaneously closing the
2
door behind him. This method left him with only fourteen inches between the
swing of the door and the edge of the platform to walk on. Duncan claims that as
a result of the insufficient clearance between the swing of the door and the edge
of the platform, he inadvertently stepped off the platform “into air” where he
expected to find the edge of the platform and fell, striking his lower back on the
edge of the platform and first step. After the fall, Duncan was diagnosed with a
herniated disc and “posterior displacement and effacement of the cervical spinal
cord,” which he alleged necessitated epidural steroid injections, physical therapy,
and multiple spinal surgeries.
Duncan sued First Texas, alleging that it was negligent in failing to (1)
provide Duncan with a safe place to work; (2) engage competent and
experienced planners, designers, construction personnel, subcontractors,
inspectors, and supervisors; (3) adequately train and instruct the planners,
designers, construction personnel, subcontractors, inspectors, and supervisors
involved in the construction, inspection, and maintenance of the deck, handrails,
and stairway of the office trailer; and (4) inspect the deck, handrails, and stairway
of the office trailer and maintain them in a reasonably safe condition.
First Texas filed a hybrid traditional and no-evidence motion for summary
judgment. See Tex. R. Civ. P. 166a(c), (i). First Texas sought a traditional
summary judgment on the grounds that there was no genuine issue of material
fact that (1) it did not have actual or constructive knowledge that the stairs
constituted a dangerous condition, (2) the stairs did not pose an unreasonable
3
risk of harm, or (3) its alleged failure to exercise reasonable care was not the
proximate cause of Duncan’s injuries. First Texas also requested summary
judgment on the grounds that there was no evidence that (1) it had actual or
constructive knowledge of any defect in the stairs prior to Duncan’s accident or
that the stairs constituted a dangerous condition, (2) a condition on the premises
posed an unreasonable risk of harm, or (3) its failure to use reasonable care was
the proximate cause of Duncan’s injuries.1 Duncan filed a response, arguing that
First Texas failed to prove it was entitled to judgment as a matter of law and that
he had provided more than a scintilla of evidence of every element of his claim.
The trial court granted First Texas’s motion for summary judgment without
specifying the grounds relied upon for its ruling.
II. Standards 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 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
1
In its motion, First Texas moved for summary judgment on Duncan’s
premises liability claim and, in the alternative, Duncan’s ordinary negligence
claim if the trial court determined that Duncan pled such a claim. In both the trial
court and on appeal, Duncan describes his case as a “negligence action against
an employer based on premises liability” and only challenges First Texas’s
motion on his premises liability claim. We also construe Duncan’s claim as a
premises liability claim.
4
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 who
conclusively negates at least one essential element of a cause of action is
entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315
S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (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
5
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 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); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
Because the trial court’s summary judgment order does not state the
bases for the trial court’s decision, we must affirm the order if any of the theories
presented to the trial court and preserved for appellate review are meritorious.
See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003); Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
III. Analysis
A. Duty to Warn
In his second and third issues respectively, Duncan argues that there was
a genuine issue of material fact as to whether he had actual knowledge of the
dangerous condition posed by the platform and that even if Duncan had actual
knowledge, the trial court erred by concluding that his knowledge relieved First
Texas of its duty to warn of or make safe the condition.
First Texas is a nonsubscriber to the Texas Workers’ Compensation Act.
See Tex. Lab. Code Ann. § 406.002(a) (West 2006) (“Except for public
6
employers and as otherwise provided by law, an employer may elect to obtain
workers’ compensation insurance coverage.”). In an action against an employer
by an employee who is not covered by workers’ compensation insurance, the
employee “must prove negligence of the employer or of an agent or servant of
the employer acting within the general scope of the agent’s or servant’s
employment.” Id. § 406.033(d) (West Supp. 2014); see id. § 406.002(a); Kroger
Co. v. Keng, 23 S.W.3d 347, 352 (Tex. 2000).
The first step in evaluating Duncan’s claim is determining the nature and
scope of First Texas’s duty. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex.
2008) (“Like any other negligence action, a defendant in a premises case is liable
only to the extent it owes the plaintiff a legal duty.”). In a premises liability case,
“the scope of the duty turns on the plaintiff’s status.” Del Lago Partners, Inc. v.
Smith, 307 S.W.3d 762, 767 (Tex. 2010). Here, the parties do not dispute that
Duncan, as First Texas’s employee, was an invitee when the incident in question
occurred. See Barton v. Whataburger, Inc., 276 S.W.3d 456, 466 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (“Employees are the invitees of their
employer.”). An employer’s duty to his employees is identical “in all material
respects” to a landowner’s duty “to use reasonable care to make his premises
reasonably safe for the use of his invitees.” Sears, Roebuck, & Co. v. Robinson,
154 Tex. 336, 340, 280 S.W.2d 238, 240 (1955); see Leal v. McDonald’s Corp.,
No. 03-05-00500-CV, 2009 WL 2410853, at *4 (Tex. App.—Austin Aug. 5, 2009,
no pet.) (mem. op.) (“Employers owe their employees the same duty of care that
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premises owners owe invitees.” (citing Allen v. Connolly, 158 S.W.3d 61, 65–66
(Tex. App.—Houston [14th Dist.] 2005, no pet.))); Hall v. Sonic Drive-In of
Angleton, Inc., 177 S.W.3d 636, 644 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied) (applying elements of a premises liability claim to a nonsubscriber case).
In the employment context, we first evaluate the employer’s duty to provide
a safe workplace in assessing a plaintiff’s claim. See Del Lago, 307 S.W.3d at
767; Barton, 276 S.W.3d at 461. An employer owes a continuous, nondelegable
duty to provide its employees with a safe place to work. See, e.g., Elwood, 197
S.W.3d at 794; Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). But an
employer is not an insurer of its employee’s safety. Elwood, 197 S.W.3d at 794.
It has no duty to warn an employee of dangers that are commonly known or
already appreciated by him unless there is evidence that the work is unusually
precarious. See, e.g., id. at 794–95 (holding that nonsubscribing employer had
no duty to warn employee that placing his hand in the doorjamb of a customer’s
car is an obvious danger); see also Jack in the Box, Inc. v. Skiles, 221 S.W.3d
566, 569 (Tex. 2007) (holding that employer had no duty to warn employee that it
was obviously dangerous to use a ladder to climb over a lift gate).
First Texas argued in its motion for summary judgment that it owed no duty
to warn Duncan about the platform because by virtue of his eleven years’
experience as a construction superintendent and his frequent use of the stairs,
Duncan understood any risk associated with going up and down the stairs. In
response, Duncan asserted that because the “no-duty” doctrine has been
8
abolished in Texas, his knowledge of the dangerous condition of the platform
was only relevant to determining comparative negligence, which First Texas
cannot use as a defense because it is a nonsubscriber. See Sears, Roebuck,
154 Tex. at 339, 280 S.W.2d at 240 (stating that the “no-duty” doctrine provides
that a landowner owes no duty to remedy known and obvious dangers on a
premises); see also Del Lago, 307 S.W.3d at 772–73 (recognizing that Texas
has abolished the “no-duty” doctrine previously applicable to open and obvious
dangers known to the invitee and that a plaintiff’s knowledge is relevant to
determine comparative negligence but does not operate as a complete bar to
recovery as a matter of law by relieving the defendant of his duty to reduce or
eliminate the unreasonable risk of harm); Keng, 23 S.W.3d at 350–51 (rejecting
comparative responsibility as a defense to a nonsubscribing employer). The U.S.
Court of Appeals for the Fifth Circuit has recently recognized that the nature and
scope of a nonsubscribing employer’s duty to its employee in a premises liability
case is unclear and certified the following question to the Texas Supreme Court:
Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas
Labor Code, can an employee recover against a non-subscribing
employer for an injury caused by a premises defect of which he was
fully aware but that his job duties required him to remedy? Put
differently, does the employee’s awareness of the defect eliminate
the employer’s duty to maintain a safe workplace?
Austin v. Kroger Tex. L.P., 746 F.3d 191, 204 (5th Cir. 2014). The Texas
Supreme Court has yet to answer, or decline to answer, that question. See Tex.
R. App. P. 58.1.
9
But assuming without deciding that an employee’s awareness of a defect
does eliminate an employer’s duty to provide a safe workplace, First Texas failed
to establish as a matter of law that Duncan knew of or appreciated the risk of
harm created by the insufficient clearance between the swing of the door and the
edge of the platform. Even though Duncan testified in his deposition that over
the course of two years and three months, he went up and down the steps at
least four times per day, five days a week without any problems, First Texas
failed to put forth any evidence establishing that Duncan knew about the hazard
created by the platform. In fact, Duncan testified that he did not observe any
problems with the stairs before his accident and that he seldom left the trailer in
the manner in which he left the trailer on the day of the accident. First Texas
also failed to put forth any evidence to establish that Duncan appreciated the
risks associated with the platform as a result of his experience as a construction
superintendent.
We conclude that First Texas failed show there was no genuine issue as to
whether Duncan knew of or appreciated the hazard created by the platform.
Accordingly, we sustain his second issue. Because we have sustained Duncan’s
second issue, we need not address his third issue. See Tex. R. App. P. 47.1.
10
B. Premises Liability
By his first issue, Duncan argues that the trial court erred in granting First
Texas’s motion for summary judgment because he presented evidence creating
a genuine issue of material fact on every element of his premises liability claim.
Here, First Texas owed Duncan a duty to exercise reasonable care to
protect him from conditions on the property that created an unreasonable risk of
harm of which First Texas knew or should have known by the exercise of
reasonable care. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000);
H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 219 (Tex. 1999). To
prevail on his claim against First Texas, Duncan must establish each of the
following four elements: (1) First Texas had actual or constructive knowledge of
some condition on its premises, (2) the condition posed an unreasonable risk of
harm, (3) First Texas did not exercise reasonable care to reduce or eliminate the
risk, and (4) First Texas’s failure to use reasonable care proximately caused
Duncan’s injuries. See Hall, 177 S.W.3d at 644. By its motion for summary
judgment, First Texas challenged the first, second, and fourth elements of
Duncan’s premises liability claim. Accordingly, we address each challenged
element in turn.
1. Knowledge of the condition
The threshold issue in a premises defect claim is whether the defendant
had actual or constructive knowledge of the allegedly dangerous condition.
Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). Actual knowledge is
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what a person actually knows as distinguished from constructive or imputed
knowledge—what a person after a reasonable inspection ought to know or have
reason to know. Id. at 3–4. A premises liability plaintiff satisfies the notice
element by establishing that (1) the premises owner created the allegedly
dangerous condition; (2) the owner actually knew that the allegedly dangerous
condition existed; or (3) it is more likely than not that the condition existed long
enough to give the premises owner a reasonable opportunity to discover it. See
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
Actual knowledge “requires knowledge that the dangerous condition
existed at the time of the accident, as opposed to constructive knowledge which
can be established by facts or inferences that a dangerous condition could
develop over time.” City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex.
2008). Circumstantial evidence establishes actual knowledge only when it
directly or by reasonable inference supports that conclusion. Id. at 415 (citing
State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)). When determining if a
premises owner has actual knowledge of a condition that presents an
unreasonable risk of harm, courts generally consider whether the owner had
received reports of prior injuries or reports of the potential danger presented by
the condition. Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied) (citing Brinson Ford, Inc. v. Alger, 228 S.W.3d 161,
163 (Tex. 2007)).
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In its motion, First Texas asserted that there was no evidence that it had
actual or constructive knowledge of the alleged defect. In response, Duncan
argued that there was a genuine issue of material fact regarding whether First
Texas had both actual and constructive knowledge of the dangerous condition.
Duncan attached to his response excerpts from the deposition of Robert
Hernandez, who was an area manager for First Texas at the time of Duncan’s
accident. Hernandez testified that he had difficultly entering and exiting the
trailer using the steps, handrails, and landing and that he was afraid he “was
going to miss a step or maybe take a tumble.” Hernandez was also concerned
that the platform was dangerous because there was not enough room on the
platform to safely maneuver while opening and closing the trailer door. He
further testified that he reported these concerns to Bill Durham, the director of
construction for First Texas.2 When Hernandez reported his concerns, he was
told that as long as the stairs and landing were in compliance, First Texas was
not going to modify them.
On appeal, First Texas contends that Hernandez’s testimony is insufficient
to raise a fact issue on First Texas’s actual knowledge of the condition because
Hernandez could not specifically recall whether he reported the condition to
Durham before or after Duncan’s accident and because there was no evidence
that Hernandez took any additional steps to alter the stairs or the landing after he
2
According to Hernandez, Durham’s position was “probably” one of the top
four positions at First Texas.
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reported his concerns. When asked whether he reported his concerns about the
platform to Durham before or after Duncan was injured, Hernandez responded, “I
think it’s before, as far as I can remember.” In light of our obligation to examine
the record in a light most favorable to the nonmovant, we conclude that
Hernandez’s testimony raises a fact issue as to whether First Texas had actual
knowledge of the condition because both Durham and Hernandez had
knowledge of the dangerous condition created by the platform. See Wal-Mart
Stores, Inc. v. Chavez, 81 S.W.3d 862, 864 (Tex. App.—San Antonio 2002, no
pet.) (stating that when defendant’s employee learns of a dangerous condition,
defendant has actual knowledge of the dangerous condition); Wright v. Wal-Mart
Stores, Inc., 73 S.W.3d 552, 554 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
(stating that knowledge can be established by “proof that employees either saw
or were told of the harmful condition prior to the plaintiff’s injury”).
First Texas also moved for summary judgment on the ground that it did not
have actual or constructive knowledge of the alleged defect as a matter of law
because (1) the stairs were constructed by a third party, (2) Duncan inspected
and approved the stairs after they were constructed, and (3) Duncan used the
stairs for over two years without incident. In support of its motion, First Texas
attached portions of Duncan’s deposition testimony. Duncan testified that
Baltazar Mendez constructed the stairs. According to Duncan, Mendez was “on
First Texas’s payroll.” Duncan further testified that Tony Acosta, another First
Texas employee, instructed Mendez where to place the steps and how to build
14
them. Duncan did not know if Mendez submitted a work order or invoice to be
paid for his work, but if Mendez did, Duncan would have inspected the work for
completion only. At the time of completion, Duncan did not observe any
problems with the steps.
Contrary to First Texas’s assertions, this evidence does not establish that
the stairs were constructed by a third party or that Duncan actually inspected the
stairs. According to Duncan, Mendez constructed the stairs under Acosta’s
direction. Duncan was not certain that he inspected the stairs, and if he did, it
was for completion only. The evidence, together with the fact that Duncan used
the stairs for an extended period without incident, does not establish as a matter
of law First Texas’s lack of knowledge of the alleged condition. First Texas
offered no other affidavit testimony, deposition testimony, or other evidence to
conclusively establish that it did not have actual knowledge. Accordingly, we
hold that First Texas’s summary judgment evidence did not conclusively negate
that it had actual knowledge of the condition.
2. Condition posed an unreasonable risk of harm
A condition is not unreasonably dangerous simply because it is not
foolproof. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006).
A condition is unreasonably dangerous if it presents an unreasonable risk of
harm. Brinson Ford, 228 S.W.3d at 163. “A condition poses an unreasonable
risk of harm for premises-defect purposes when there is a ‘sufficient probability of
a harmful event occurring that a reasonably prudent person would have foreseen
15
it or some similar event as likely to happen.’” Cnty. of Cameron v. Brown, 80
S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v. Cal Bayreuther Assocs., 451
S.W.2d 752, 754 (Tex. 1970)); see also Rosas v. Buddies Food Store, 518
S.W.2d 534, 537 (Tex. 1975) (“Whether a condition constitutes a danger is a
function of reasonableness. That is, if the ordinarily prudent man could foresee
that harm was a likely result of a condition, then it is a danger.”). Foreseeability
in this context “does not require that the exact sequence of events that produced
an injury be foreseeable.” Cnty. Of Cameron, 80 S.W.3d at 556. Instead, only
the general damage must be foreseeable. Id. Because this definition precludes
a definitive, objective test, the extent to which a condition is unreasonably
dangerous is ordinarily a fact question. Christus Health Se. Tex. v. Wilson, 305
S.W.3d 392, 397 (Tex. App.—Eastland 2010, no pet.); see also Hall, 177 S.W.3d
at 646 (“The determination of whether a particular condition poses an
unreasonable risk of harm is generally fact specific.”); Brooks v. First Assembly
of God Church, 86 S.W.3d 793, 797 (Tex. App.—Waco 2002, no pet.) (“Whether
a particular risk is unreasonable or not is a fact question for the jury.”). When
assessing whether a condition posed an unreasonable risk of harm—whether a
harmful event was probable and foreseeable—courts have considered, among
other things, (1) whether the condition met applicable safety standards and (2)
whether any other invitees had complained about the condition. Martin v. Chick-
Fil-A, No. 14-13-00025-CV, 2014 WL 465851, at *3–4 (Tex. App.—Houston [14th
Dist.] Feb. 4, 2014, no pet.) (mem. op.); see also Brinson Ford, 228 S.W.3d at
16
163 (holding that pedestrian ramp was not unreasonably dangerous as a matter
of law because, among other things, it met applicable safety standards and the
premises owner had not received any complaints about the ramp’s safety); Dietz
v. Hill Country Rests., Inc., 398 S.W.3d 761, 767–68 (Tex. App.—San Antonio
2011, no pet.) (holding that summary judgment was proper because there was
no evidence of unreasonable risk of harm where condition—depressions in
sidewalk—had been present with for eighteen years with no prior falls or
complaints).
Here, it is undisputed that the swing of the trailer’s door reduced the
effective width of the platform to fourteen inches. In its motion, First Texas
argued there was no evidence that a condition on the premises posed an
unreasonable risk of harm. In response, Duncan asserted that the platform was
unreasonably dangerous because it was six inches shorter than required by 29
C.F.R. § 1926.1052(a)(4) and First Texas’s safety guidelines.
Section 1926.1052(a)(4) requires as follows: “Where doors or gates open
directly on a stairway, a platform shall be provided, and the swing of the door
shall not reduce the effective width of the platform to less than 20 inches (51
cm).” 29 C.F.R. § 1926.1052(a)(4). Similarly, First Texas’s safety standards for
construction trailers and offices, which Duncan attached to his response, requires
that “[t]he landing platform must be at least 30 inches in the direction of travel
and the outward swing of the door must not reduce the effective width of the
platform to less than 20 inches.” Because the platform failed to provide the
17
required clearance between the edge of the platform and the edge of the trailer
door as prescribed by OSHA standards and First Texas’s safety standards,
Duncan argued that it posed an unreasonable risk of harm because it increased
the danger of a person falling off the platform.
First Texas asserts that (1) section 1926.1052(a)(4) did not apply to the
worksite where Duncan was injured because the construction project was not
federally funded and (2) the International Residential Code (IRC) was the
applicable standard for construction of stairs and landings used on construction
trailers in Frisco, Texas. In support of its contention that section 1926.1052(a)(4)
did not apply to the worksite because the construction project was not federally
funded, First Texas quotes the following language from Cole v. Noble Drilling
Corp.,
[t]he OSHA regulations cited by Plaintiff, 29 CFR § 1926.1052(c)(5),
(8)-(9), and (11), are found in Part 1926, “Safety and Health
Regulations for Construction,” Subpart X, “Stairways and Ladders,”
of Title 29 of the Code of Federal Regulations (CFR). Authority for
these regulations derives, in part, from the Contract Work Hours and
Safety Standards Act, 40 U.S.C. § 3701, et seq., which applies to
federal service contracts and federal and federally-assisted
construction contracts over $100,000. See 40 U.S.C. § 3701(b).
Assuming that Plaintiff was an employee of Defendant, Plaintiff has
presented no valid argument or evidence that the OSHA regulations
he cites are applicable in this case, and thus, Plaintiff has not
established that these regulations establish the standard of care
owed Plaintiff.
No. CIV 1:05CV479HSO-JMR, 2007 WL 2475944, at *4 (S.D. Miss. Aug. 28,
2007). The court in Cole, however, did not limit the applicability of section
1926.1052 to federally funded construction projects. See id. The court merely
18
pointed out in dicta that authority for part 1926 “derives, in part, from the Contract
Work Hours and Safety Standards Act.” Id. Authority for part 1926 also derives
from 29 U.S.C.A. § 653, the applicability section of the Occupational Safety and
Health Act, which provides that “[t]his chapter shall apply with respect to
employment performed in a workplace in a State.” 29 U.S.C.A § 653(a) (West
2008). Section 653(b)(1) clarifies the workplaces to which the act does not
apply, but it does not exclude construction projects that are not federally funded.
See id. § 653(b)(1) (“Nothing in this chapter shall apply to working conditions of
employees with respect to which other Federal agencies, and State agencies
acting under section 2021 of Title 42, exercise statutory authority to prescribe or
enforce standards or regulations affecting occupational safety or health.”). The
regulations promulgated pursuant to the act, which includes section 1926.1052,
incorporate the broad applicability of part 1926: “The standards contained in
[part 1926] shall apply with respect to employments performed in a State.” 29
C.F.R. § 1926.20(c) (2014). Thus, we conclude that section 1926.1052 applied
to the worksite where Duncan was injured.
First Texas next argues that even if section 1926.1052(a)(4) applies to this
case, deviations from the standard set forth therein are no evidence that a
condition posed an unreasonable risk of harm. See Richard v. Cornerstone
Constructors, Inc., 921 S.W.2d 465, 468 (Tex. App.—Houston [1st Dist.] 1996,
writ denied) (op. on reh’g) (“A state’s common law duties are not expanded by
OSHA regulations.”); McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d
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167, 172 (Tex. App—Dallas 1994, writ denied) (op. on reh’g) (“We hold that any
violation of the city ordinance relates only to the third element of the premises
defect cause of action,” i.e., the alleged failure to exercise reasonable care to
reduce or eliminate the risk). OSHA standards, however, are generally relevant
as the cumulative wisdom of the industry on what is unsafe. Wal-Mart Stores,
Inc. v. Seale, 904 S.W.2d 718, 720 (Tex. App.—San Antonio 1995, no writ).
Because whether a condition met applicable safety standards is a relevant
consideration when determining whether that condition posed an unreasonable
risk of harm, we conclude that deviations from the standards prescribed in
section 1926.1052(a)(4) are some evidence that the condition in this case posed
an unreasonable risk of harm.
First Texas also argues that the IRC supplies the applicable standards for
the construction of landings and steps on construction trailers in Frisco, Texas.
First Texas points to the affidavit of Steve Covington, the Chief Building Officer
for the City of Frisco, Texas. Covington averred that he issued permits for the
trailer to First Texas and that with respect to the landing and steps attached to
the trailer, inspectors would apply the regulations pertaining to stairways and
landings found in the IRC. He further averred that “if any construction company,
subcontractor, or any other person . . . inquired on the regulations in building a
landing or steps to a construction trailer to be used within the City of Frisco, our
office would instruct them to build it in compliance with the 2006 [IRC].” He went
on to declare that section 311.5 of the IRC, provides that “[e]very landing [for a
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stairway] shall have a minimum dimension of 36 inches (914 mm) measured in
the direction of travel.” Because the landing in this case exceeded the minimum
dimensions required by the IRC, First Texas argues that there was no
unreasonably dangerous condition as a matter of law.
First Texas did not put forward any evidence to establish that the IRC
applied to the exclusion of section 1926.1052(a)(4) or its own safety standards.
Moreover, Jim Drebelbis, Duncan’s expert, testified that the platform did not meet
the standards under the IRC. According to Drebelbis, the IRC mandate that
“[d]oors in the fully open position shall not reduce a required dimension by more
than seven inches” required the platform to have a thirty-seven-inch clearance
between the swing of the door and the edge of the platform, which would render
the fourteen-inch clearance in this case insufficient under the IRC.
First Texas does not dispute that the platform did not comply with section
1926.1052(a)(4) or with its own safety standards. Additionally, Drebelbis testified
in his deposition that section 1926.1052(a)(4) applied to the platform and that the
platform did not comply with section 1926.1052(a)(4) because it was too short.
Cf. Lyondell Petrochemical Co. v. Fluor Daniel, Inc., 888 S.W.2d 547, 555 (Tex.
App.—Houston [1st Dist.] 1994, writ denied) (concluding that expert testimony
regarding OSHA standards and their application is both relevant and admissible
in owner’s action against contractor for contribution in connection with underlying
personal injury action by contractor’s employee). This evidence, coupled with
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Drebelbis’s testimony regarding the IRC, was sufficient to raise a genuine issue
of material fact as to whether the condition was unreasonably dangerous.
First Texas also moved for summary judgment on the grounds that the
stairs did not pose an unreasonable risk of harm as a matter of law because
there were no incidents with the stairs from the time they were installed to the
time of Duncan’s accident and there were no visible problems with the stairs.
While evidence of other injuries attributable to the same condition “would be
probative,” such evidence would not be “conclusive” on the issue of whether the
condition posed an unreasonable risk of harm. Hall, 177 S.W.3d at 646 (quoting
Seideneck, 451 S.W.2d at 754). “Likewise, although evidence of the lack of any
injuries attributable to the condition might be probative on the issue, it does not
follow that such evidence conclusively establishes the absence of an
unreasonable risk of harm.” Id.
Taking the proof favorable to Duncan detailed above as true, and indulging
every reasonable inference and resolving any doubts in favor of Duncan, as we
must, we conclude that First Texas did not establish as a matter of law that the
platform was not unreasonably dangerous. Accordingly, we hold that First
Texas’s summary judgment evidence did not conclusively negate that the
platform was unreasonably dangerous.
3. Proximate cause
To prove an action for premises defect, an invitee must establish that the
defendant’s lack of care proximately caused the invitee’s injuries. CMH Homes,
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15 S.W.3d at 99; Hall, 177 S.W.3d at 647. Proximate cause consists of cause-in-
fact and foreseeability. Leitch, 935 S.W.2d at 118. A defendant’s negligence is
the cause-in-fact of the plaintiff’s injuries if the negligent act or omission was a
substantial factor in bringing about the injury, without which the harm would not
have occurred. Hall, 177 S.W.3d at 648. Foreseeability “means that the actor,
as a person of ordinary intelligence, should have anticipated the dangers that his
negligent act created for others.” Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d
546, 549–50 (Tex. 1985). It requires only that the general danger, not the exact
sequence of events that produced the harm, be foreseeable. Walker v. Harris,
924 S.W.2d 375, 377 (Tex. 1996); Hall, 177 S.W.3d at 648.
In its summary judgment motion, First Texas asserted that there was no
evidence that First Texas’s failure to use ordinary care, if any, proximately
caused Duncan’s injuries. Duncan testified during his deposition that when
leaving the trailer, he stepped “into air” where he expected to find the platform
and fell onto the edge of the platform and first step, hitting and injuring his lower
back. And as discussed above, there was evidence that First Texas constructed
the stairs and the platform; that the platform did not meet OSHA, IRC, and First
Texas’s standards because there was insufficient clearance between the swing
of the door and the edge of the platform; and that First Texas knew of the
dangerous condition. Accordingly, we conclude Duncan raised a genuine issue
of material fact as to whether First Texas’s negligence proximately caused
Duncan’s injuries.
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First Texas also asserted in its motion that its alleged failure to exercise
reasonable care did not, as a matter of law, proximately cause Duncan’s injuries
because there was no expert testimony linking the alleged defect in the platform
to Duncan’s injuries. But Drebelbis testified that Duncan would not have fallen if
the width of the landing had been in compliance with OSHA standards. Even
without Drebelbis’s testimony, there was evidence sufficient to raise a genuine
issue of material fact regarding causation. While expert testimony under the
circumstances might be helpful, it is not required to establish causation. “When a
layperson’s common understanding and general experience enable her to
determine, with reasonable probability, the causal relationship between the event
and the condition, proof other than expert testimony will constitute some
evidence of causation.” Towers of Town Lake Condo. Ass’n, Inc. v. Rouhani,
296 S.W.3d 290, 298–99 (Tex. App.—Austin 2009, pet. denied) (citing Tamez,
206 S.W.3d at 583; Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706
(Tex. 1970)). Duncan’s testimony regarding his fall, together with evidence that
First Texas constructed the stairs and the platform; that the platform did not meet
OSHA, IRC, and First Texas’s standards because there was insufficient
clearance between the swing of the door and the edge of the platform; and that
First Texas knew of the dangerous condition, there is some evidence of
causation. Thus, First Texas did not establish as a matter of law that its
negligence was not the proximate cause of Duncan’s injuries.
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First Texas also moved for summary judgment on the ground that
Duncan’s negligence was the sole proximate cause of his injuries, arguing on
appeal that Duncan’s method of using the stairs on the day of the accident
resulted in his injuries. Even though a nonsubscribing employer forgoes certain
defenses, it is still entitled to the defense that the actions of its employee were
the sole proximate cause of the employee’s injury. Najera v. Great Atl. & Pac.
Tea Co., 146 Tex. 367, 371, 207 S.W.2d 365, 367 (1948) (stating that a finding
against injured worker on sole proximate cause issue in a nonsubscriber case
would have prevented recovery); Hall v. Timmons, 987 S.W.2d 248, 255 (Tex.
App.—Beaumont 1999, no pet.) (stating that a nonsubscribing employer may
defend on ground that employee was guilty of some act which was the sole
proximate cause of her injury); see also Keng, 23 S.W.3d at 352 (citing
Brookshire Bros. v. Wagnon, 979 S.W.2d 343, 347 (Tex. App.—Tyler 1998, pet.
denied) (submitting an employee’s fault improper unless the submission is on
sole proximate cause)).
Sole proximate cause is an inferential rebuttal defense. Walzier v. Newton
Trucking Co., 27 S.W.3d 561, 563–64 (Tex. App.—Amarillo 2000, no pet.) (citing
Am. Jet., Inc. v. Leyendecker, 683 S.W.2d 121, 126 (Tex. App.—San Antonio
1984, no writ)). “The basic characteristic of an inferential rebuttal is that it
presents a contrary or inconsistent theory from the claim relied upon for
recovery.” Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex. 1978).
Specifically, evidence illustrating sole proximate cause does not tend to interject
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an independent basis for denying recovery for the plaintiff once he establishes a
prima facie case. Rather, it tends to disprove an element of the plaintiff’s cause
of action or the existence of the prima facie case. Walzier, 27 S.W.3d at 564;
Timmons, 987 S.W.2d at 255 (citing Holiday Hills Ret. & Nursing Ctr., Inc. v.
Yeldell, 686 S.W.2d 770, 775 (Tex. App.—Fort Worth 1985), rev’d on other
grounds, 701 S.W.2d 243 (Tex. 1985)).
For First Texas to obtain summary judgment on the basis of sole proximate
cause, it had to prove as a matter of law that Duncan’s own conduct was the only
proximate cause of his injury. See Walzier, 27 S.W.3d at 563; cf. Union Pump
Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995) (holding summary judgment
proper because the defendant’s action was not the proximate cause of the
plaintiff’s injury as a matter of law), abrogated on other grounds by Ford Motor
Co. v. Ledesma, 242 S.W.3d 32, 45–46 (Tex. 2007). 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.” Timmons, 987 S.W.2d at 254 (citing Yeldell, 686 S.W.2d at 775).
Even though Duncan left the trailer numerous times without incident, First
Texas failed to establish that Duncan’s actions were the only cause of his
injuries. In light of the evidence detailed above, we conclude that there was
some evidence to show that First Texas’s negligence caused Duncan’s injuries.
Thus, First Texas failed to establish as a matter of law that Duncan’s negligence
was the sole proximate cause of his injuries.
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Accordingly, we sustain Duncan’s first issue.
IV. Conclusion
Having sustained Duncan’s first and second issues, we reverse the trial
court’s summary judgment and remand this case to the trial court for further
proceedings. See Tex. R. App. P. 43.2(d).
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER and WALKER, JJ.3
DELIVERED: February 12, 2015
3
Justice McCoy was a member of the original panel but has retired in the
interim. This case was decided by the two remaining justices. See Tex. R. App.
P. 41.1(b).
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