Opinion issued October 27, 2022
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00271-CV ——————————— BILLY ANDERSON, Appellant V. OREA HARRIS AND SHONIA HARRIS, Appellees
On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case No. 104735-CV
MEMORANDUM OPINION
In this premises-liability case, appellant Billy Anderson sued Orea and Shonia
Harris for injuries he sustained when he fell off the roof of the house the Harrises
were constructing. The trial court granted the Harrises’ no-evidence summary-
2 judgment motion, implicitly denying Anderson’s request for additional time to
conduct discovery. We affirm.
BACKGROUND
The Harrises hired Patrick Knapp as a general contractor to build a house on
a property located across the street from the house where they lived. Knapp, in turn,
hired Anderson to help construct the roof of the house. One day, while on the roof,
Anderson slipped on a piece of wet, unsecured sheet metal and fell about 30 feet to
the ground, suffering serious injuries.
Anderson sued the Harrises as owners of the premises on which he fell. The
Harrises did not answer until May of 2020, about eight months after Anderson filed
suit. By that time, the Covid-19 pandemic had interrupted many business operations
in the state. Still, the parties conducted written discovery.
About ten months after they answered, the Harrises filed a no-evidence
summary-judgment motion in March of 2021 and set it for hearing two months later,
in May. They claimed there was no evidence of two elements of Anderson’s
premises-liability claim against them. Anderson noticed the deposition of Mr. Harris
a week before the date the deposition was supposed to take place. The Harrises
quashed the deposition, citing inadequate advance notice. The trial court then
granted the Harrises’ no-evidence summary-judgment motion, and Anderson now
appeals.
3 DISCUSSION
Anderson contends the trial court erred in granting the Harrises’ no-evidence
motion for summary judgment because there had not been adequate time for
discovery when the trial court granted the motion and because he provided sufficient
evidence to defeat the summary-judgment motion. We disagree on both counts.
A. Adequate time for discovery
In his first point of error, Anderson argues that because of the Covid-19
pandemic, there was not adequate time for discovery before the trial court granted
summary judgment.
1. Standard of review and applicable law
A party may move for a no-evidence summary judgment “[a]fter adequate
time for discovery.” TEX. R. CIV. P. 166a(i). Usually, the discovery period set by a
pretrial order is an adequate time for discovery. TEX. R. CIV. P. 166a(i) cmt. (“A
discovery period set by pretrial order should be adequate opportunity for discovery
. . . .”); McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.]
2008, no pet.). But we may consider additional factors in determining whether the
trial court permitted an adequate time for discovery, including: (1) the nature of the
case; (2) the nature of the evidence necessary to controvert the no-evidence motion;
(3) the length of time the case was active; (4) the amount of time the no-evidence
motion was on file; (5) whether the movant had requested stricter deadlines for
4 discovery; (6) the amount of discovery that already had taken place; and (7) whether
the discovery deadlines in place were specific or vague. McInnis, 261 S.W.3d at 201.
A party seeking more time to conduct discovery to oppose a summary
judgment “must file either an affidavit explaining the need for further discovery or
a verified motion for continuance.” Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d
640, 647 (Tex. 1996); see also TEX. R. CIV. P. 166a(g), 251, 252; Carter v.
MacFadyen, 93 S.W.3d 307, 310 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied). The affidavit must provide more than conclusory allegations to show why
the additional time is necessary. Carter, 93 S.W.3d at 310.
We review a trial court’s determination that there has been adequate time for
discovery for abuse of discretion. McInnis, 261 S.W.3d at 201.
2. Analysis
Anderson contends the Covid-19 pandemic delayed discovery. After the
Harrises moved for summary judgment, Anderson responded by arguing he needed
more time for discovery because the “COVID [s]hutdown has profoundly affected
the practice of law.” Anderson claimed he still needed the Harrises’ depositions and
their financial records. His attorney filed an affidavit in support stating, “Most of the
discovery has been delayed due to the late responses by Defendant, and the COVID
[s]hutdown.” She offered no further explanation.
5 Anderson did not include the trial court’s pretrial scheduling order in the
record. See TEX. R. CIV. P. 166a(i) cmt. So, we begin our analysis by considering the
additional factors to determine whether there was adequate time for discovery. See
McInnis, 261 S.W.3d at 201. Anderson has not addressed these factors other than
identifying the discovery sought—the Harrises’ depositions and financial records—
and the length of the time the case had been active—almost a year after the Harrises
answered.
Anderson claims the Covid-19 pandemic delayed discovery, but he has not
given any explanation as to how the pandemic affected discovery in this case. He
acknowledges that the parties conducted written discovery in the ten months the case
was pending after the Harrises answered. He also acknowledges that the Harrises
quashed his deposition notice because the notice was not given within a reasonable
amount of time before the deposition, not because the pandemic prevented him from
taking depositions. He has not explained how the pandemic prevented him from
conducting written discovery or taking those depositions by video conference. See
Owens v. City of Tyler, No. 12-21-00009-CV, 2021 WL 4617790, at *9 (Tex. App.—
Tyler Oct. 6, 2021, no pet.) (mem. op.).1 Thus, Anderson’s claim that the Covid-19
1 The appellate court in Owens similarly did not find reliance on the Covid-19 pandemic, without further explanation, to be a valid reason for not conducting discovery. The court noted:
6 pandemic delayed discovery in this case is a conclusory allegation that does not
support a continuance. See Carter, 93 S.W.3d at 310.
The trial court did not abuse its discretion in determining the parties had
adequate time for discovery. We overrule Anderson’s first point of error.
B. Additional time for discovery
Anderson’s second point of error is a restatement of the first: he claims the
trial court should have denied the summary-judgment motion to permit additional
time for necessary discovery. Because we have already concluded the trial court did
not abuse its discretion in determining there had been adequate time for discovery
and overruled his first point of error, we likewise overrule this point of error.
C. Premises liability
Anderson next contends the trial court erred in granting the Harrises’ no-
evidence summary-judgment motion because he produced enough evidence to raise
a fact issue on his premises-liability claim.
The [appellants] claim that the Texas Supreme Court’s emergency orders relating to the Covid-19 pandemic prevented discovery. However, those orders did not prevent the parties from serving written discovery requests . . . or conducting depositions via video conference software such as Zoom. The [appellants] essentially gave no explanation for the lack of discovery. Owens, 2021 WL 4617790, at *9. 7 1. Standard of review
After adequate time for discovery, a party may move for summary judgment
on the basis that there is no evidence to support one or more essential elements of
the nonmovant’s claim. TEX. R. CIV. P. 166a(i); Cypress Creek EMS v. Dolcefino,
548 S.W.3d 673, 684 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). The
nonmovant must respond by producing “at least a scintilla” of evidence raising a
genuine issue of material fact as to each challenged element. TEX. R. CIV. P. 166a(i);
Cypress Creek EMS, 548 S.W.3d at 684. If the nonmovant does not produce any
evidence or produces “[l]ess than a scintilla of evidence,” the trial court must grant
the summary-judgment motion. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003). “Less than a scintilla of evidence exists when the evidence is ‘so
weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id.
(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Conclusory
statements—those that do not supply the underlying facts to support a given
representation—do not raise a genuine issue of material fact to preclude summary
judgment. Fortitude Energy, LLC v. Sooner Pipe, LLC, 564 S.W.3d 167, 183 (Tex.
App.—Houston [1st Dist.] 2018, no pet.).
We review summary judgments de novo. Cypress Creek EMS, 548 S.W.3d at
683. In reviewing a no-evidence summary judgment, we consider the evidence “in
the light most favorable to the party against whom the summary judgment was
8 rendered, crediting evidence favorable to that party if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could not.” Gonzalez v.
Ramirez, 463 S.W.3d 499, 504 (Tex. 2015) (per curiam) (quoting Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).
2. Applicable law
In a premises-liability case, the duty a premises owner owes to the plaintiff
depends on the plaintiff’s status at the time of the incident. W. Invs., Inc. v. Urena,
162 S.W.3d 547, 550 (Tex. 2005). An employee of an independent contractor
working on the premises, as Anderson was here, is an invitee on the premises. See
Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 224–25 (Tex. 1999)
(per curiam). A premises owner generally owes an invitee a duty to keep the
premises reasonably safe from dangerous conditions. See Austin v. Kroger Tex., L.P.,
465 S.W.3d 193, 203, 215 (Tex. 2015). When the invitee is an independent
contractor’s employee, there are two types of dangerous conditions, or premises
defects, that may give rise to liability. Coastal Marine, 988 S.W.2d at 225.
The first type of dangerous condition is a defect that exists on the premises
when the employee or independent contractor enters. Id. For this type of dangerous
condition, the premises owner “has a duty to inspect the premises and warn the
independent contractor/invitee of dangerous conditions that are not open and
obvious and that the owner knows or should have known exist.” Id. This type of
9 dangerous condition includes only “concealed hazards” that already exist when the
independent contractor enters the premises. Id. For example, an open shaft, without
adequate warnings, falls into this category of dangerous conditions. Id. To prevail
on this type of dangerous-condition claim, a plaintiff must establish the traditional
premises-liability elements: (1) the premises owner had actual or constructive
knowledge of the condition causing the injury; (2) the condition posed an
unreasonable risk of harm; (3) the premises owner failed to take reasonable care to
reduce or eliminate the risk; and (4) the premises owner’s failure to use reasonable
care to reduce or eliminate the risk was the proximate cause of injuries to the invitee.
See Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014) (per curiam).
The second type of dangerous condition is one that “arises as a result of the
independent contractor’s work activity.” Id. For this type of dangerous condition,
the premises owner generally “owes no duty to the independent contractor’s
employees because an owner generally has no duty to ensure that an independent
contractor performs its work in a safe manner.” Id. However, an exception to this
general rule exists when the premises owner “retains the right of supervisory control
over work on the premises.” Id. at 225–26. In these cases, the premises owner may
still be liable, but the “standard is narrow,” and the “right to control must be more
than a general right to order work to stop and start, or to inspect progress.” Id. at
226. “The supervisory control must relate to the activity that actually caused the
10 injury, and grant the [premises] owner at least the power to direct the order in which
work is to be done or the power to forbid it being done in an unsafe manner.” Id. A
party can prove a premises owner’s control in two ways: (1) with evidence of a
contract explicitly assigning the premises owner the right to control; or (2) in the
absence of a contract, with evidence that the premises owner “actually exercised
control over the manner in which the independent contractor’s work was
performed.” Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); see also
Coastal Marine, 988 S.W.2d at 226. To prevail on this type of dangerous-condition
claim, a plaintiff must establish both the premises owner’s right to control and the
traditional premises-liability elements. Clayton W. Williams, Jr., Inc. v. Olivo, 952
S.W.2d 523, 529 (Tex. 1997); Henkel, 441 S.W.3d at 251–52 (stating traditional
premises-liability elements).
3. Analysis
In their no-evidence motion for summary judgment, the Harrises asserted
there was no evidence of two elements of Anderson’s premises-liability claim:
(1) the Harrises’ control over the independent contractor’s work; and (2) the
Harrises’ actual or constructive knowledge of the dangerous condition that caused
Anderson’s injury. We conclude that in response to the no-evidence summary-
judgment motion, Anderson did not produce enough evidence to raise a fact issue as
to these two elements.
11 The parties disagree about the type of dangerous condition involved in this
case. Anderson refers to a dangerous condition—a piece of unsecured sheet metal—
that he claims existed on the premises before he or the independent contractor
entered the property. See Coastal Marine, 988 S.W.2d at 225 (describing type of
dangerous condition existing on premises when invitee entered). The Harrises argue
that the dangerous condition arose from the independent contractor’s work activity
on the premises because they hired the independent contractor to build the house, so
the unsecured sheet metal on the roof of the house must have resulted from the
independent contractor’s actions. See id. (describing type of dangerous condition
arising as result of independent contractor’s work activity). But we do not need to
decide the type of dangerous condition at issue here because both types require proof
of the traditional premises-liability elements, including the premises owner’s actual
or constructive knowledge of the dangerous condition. See Olivo, 952 S.W.2d at
529; Henkel, 441 S.W.3d at 251 (one element of premises-liability claim is premises
owner’s actual or constructive knowledge of condition causing plaintiff’s injury).
We conclude that Anderson did not produce enough evidence to raise a fact
issue as to the Harrises’ actual or constructive knowledge of the dangerous
condition, so he cannot recover on a claim for either type of dangerous condition.
Further, even if this case involved the second type of dangerous condition—one
arising from the independent contractor’s work activity—we conclude Anderson did
12 not produce enough evidence to raise a fact issue as to the Harrises’ control over the
independent contractor’s work activity.
a. Knowledge of dangerous condition
In their no-evidence summary-judgment motion, the Harrises claimed they
did not have actual or constructive knowledge of the wet, unsecured sheet metal on
the roof of the house because they did not live on the property at the time, the house
was still under construction, and they were not on the property on the day Anderson
fell.
In response, Anderson argued that the Harrises lived across the street from the
house under construction, so they could see the ongoing work. Further, he argued
the Harrises were controlling the work being done on the house—an issue discussed
more fully below. And, according to Anderson, Mrs. Harris was on the property
when he fell off the roof because she was the first to reach him after he fell. In
support of these contentions, Anderson offered his own affidavit stating:
I have been an industrial metal worker for most of my work history. I have also been instrumental in the installation of metal roofs on residential construction. .... My job at the Harris house was to help finish the metal roof. The tarpaper and runners were already installed. Two sheets of metal were on the roof. One was secured to the structure. Unknown to me, the second sheet was not secured. No one told me the metal was unsecured. It was not observable that the metal was unsecured.
13 Mr. and Mrs. Harris lived across the street from the house I was working on. By observing the ongoing roof work, Mrs. Harris would have known that the second sheet of metal was unsecured.
The affidavit itself is contradictory and does not provide facts to support the
conclusion that Mrs. Harris knew of the unsecured sheet metal. Anderson
acknowledges that to him, an experienced roofer standing on the roof, it was “not
observable that the metal was unsecured,” yet he claims Mrs. Harris, a person with
no construction knowledge, would have been aware of that fact by observing the
roofing work from across the street. Anderson offered no other evidence of the
Harrises’ knowledge of the unsecured sheet metal.
On appeal, Anderson argues that the Harrises had constructive knowledge of
the unsecured sheet metal because the independent contractor, Knapp, had
knowledge of the dangerous condition, and his knowledge can be imputed to the
Harrises because Knapp was their agent. Anderson relies on Los Compadres
Pescadores, L.L.C. v. Valdez to argue that an agent’s knowledge of a dangerous
condition can be imputed to the premises owner. See 622 S.W.3d 771, 787 (Tex.
2021). In that case, the premises owner, Los Compadres Pescadores, hired Luis
Torres instead of a general contractor to manage and supervise a construction
project. Id. at 777. The Court first determined that Torres was Los Compadres’s
employee or agent because the company retained the right to control the manner in
which he performed his work. Id. at 780–81. The Court then concluded that Torres
14 had actual knowledge of the dangerous condition on the premises—live power
lines—because an independent contractor working on the project testified that he
had multiple conversations with Torres about the live power lines and asked Torres
to de-energize the lines. Id. at 787. Torres’s knowledge was imputed to Los
Compadres because Torres was Los Compadres’s agent. Id. Los Compadres was
thus liable for the premises-defect claim asserted by the employees who were
electrocuted by the live power lines. See id. at 790–91.
Even assuming that Knapp was an agent of the Harrises and that his
knowledge could be imputed to the Harrises as in Los Compadres, Anderson did not
provide any evidence that Knapp had actual or constructive knowledge of the
unsecured sheet metal on the roof. In the trial court, Anderson alleged without any
evidentiary support that Knapp employed the worker who failed to secure the sheet
metal. At best, this allegation creates a “mere surmise or suspicion” that Knapp may
have known about the condition of the roof. See King Ranch, 118 S.W.3d at 751
(quoting Kindred, 650 S.W.2d at 63). “Actual knowledge requires knowledge that
the dangerous condition existed at the time of the accident,” and constructive
knowledge “can be established by facts or inferences that a dangerous condition
could develop over time.” Los Compadres Pescadores, 622 S.W.3d at 786.
Anderson did not provide any evidence that Knapp knew the sheet metal was
unsecured or that he had reason to infer the sheet metal would become unsecure over
15 time. Anderson has failed to provide at least a scintilla of evidence that Knapp knew
about the unsecured sheet metal. See Cypress Creek EMS, 548 S.W.3d at 684. While
an agent’s knowledge of a dangerous condition can be imputed to a premises owner,
Los Compadres Pescadores, 622 S.W.3d at 787, if the agent does not know about
the dangerous condition, knowledge cannot be imputed to the premises owner.
Anderson failed to provide any evidence that either the Harrises or Knapp, if
he was their agent, knew about the unsecured sheet metal. Thus, he failed to raise a
genuine issue of material fact as to the knowledge element of his premises-liability
claim. See TEX. R. CIV. P. 166a(i); Cypress Creek EMS, 548 S.W.3d at 684. The trial
court properly granted the Harrises’ no-evidence summary-judgment motion.
b. Control over work activity
Even if this case involved the type of dangerous condition that arises from an
independent contractor’s work activity, the Harrises would owe no duty to Anderson
unless he can demonstrate they “retain[ed] the right of supervisory control over work
on the premises.” Coastal Marine, 988 S.W.2d at 225–26. The parties agree there
was no contract explicitly assigning the Harrises the right to control the work
activity, so to demonstrate the Harrises’ control, Anderson would need to show they
actually controlled the work activity. See Bright, 89 S.W.3d at 606; Coastal Marine,
988 S.W.2d at 226. Anderson did not produce evidence to raise a fact issue as to the
Harrises’ control over the independent contractor’s work activity.
16 The Harrises asserted in their summary-judgment motion there was no
evidence they ever retained or exercised control over the means, methods, or details
of the construction project.
In response, Anderson argued the Harrises controlled the work by purchasing
materials, paying the workers, and supervising the work activity.
In support of theses contentions, Anderson submitted the affidavit of Jamie
Webb, who is his wife’s brother and a friend of the Harrises’ daughter. Webb’s
affidavit stated that Mr. Harris said he was buying all the materials for the house,
and, because of that, he was scheduling what could be worked on. Webb’s affidavit
also stated the Harrises were “very dissatisfied” with Knapp and said they needed to
find another contractor because Knapp was “not doing a good job.” Webb’s affidavit
closed with: “I concluded that [Mr. Harris] was controlling the work by choosing
when to purchase materials, and supervising the work because he was critical of the
quality of the work being performed.”
This affidavit is conclusory. The facts stated within do not demonstrate the
Harrises’ control over the manner in which the construction work was done, so there
is no basis for Webb’s stated conclusion. See Fortitude Energy, 564 S.W.3d at 183.
The facts stated in the affidavit at most demonstrate the Harrises were responsible
for the cost of constructing their house. Anderson would have us infer that paying
for materials proves the Harrises controlled the order in which the work was
17 performed, but this evidence is “so weak as to do no more than create a mere surmise
or suspicion” of that fact. See King Ranch, 118 S.W.3d at 751 (quoting Kindred, 650
S.W.2d at 63). Anderson provided no evidence that the Harrises actually directed
the order in which the work should be performed. Taking as true Webb’s statement
that the Harrises were dissatisfied with Knapp’s work, that fact equally supports the
conclusion they were not controlling his work—otherwise, they would have been
able to correct his work performance. And even though Webb asserts that the
Harrises were supervising the work activity, the “right to control must be more than
a general right . . . to inspect progress.” Coastal Marine, 988 S.W.2d at 226. The
information stated in Webb’s affidavit does not demonstrate that the Harrises were
controlling the manner in which Knapp performed his work. See Bright, 89 S.W.3d
at 606; Coastal Marine, 988 S.W.2d at 226.
Anderson’s affidavit similarly provides no more than a “mere surmise or
suspicion” that the Harrises were controlling the work activity. See King Ranch, 118
S.W.3d at 751 (quoting Kindred, 650 S.W.2d at 63). He stated, “I would be paid
weekly, because the Harrises were paying Knapp weekly.” On appeal he argues that
means he understood the Harrises, not Knapp, were paying him for his work. Taking
as true that the Harrises paid Anderson, this fact still does not demonstrate the
Harrises controlled the work activity on the construction site.
18 Anderson provided no evidence the Harrises had actual control over the
independent contractor’s work activity. Therefore, even if his claim involved a
work-activity dangerous condition, he has not raised a fact issue to defeat summary
judgment. See TEX. R. CIV. P. 166a(i); King Ranch, 118 S.W.3d at 751.
c. Summary
In response to the Harrises’ no-evidence summary-judgment motion,
Anderson produced less than a scintilla of evidence raising a genuine issue of
material fact as to each challenged element of his premises-liability claim:
knowledge of the dangerous condition and control over the work activity. Therefore,
the trial court did not err in granting the Harrises’ motion for summary judgment.
Anderson’s third point of error is overruled.
CONCLUSION
We affirm the trial court’s judgment.
Gordon Goodman Justice
Panel consists of Justices Goodman, Countiss, and Farris.