David Rogers, Individually and as Representative of the Estate of Leroy Brown v. Texas Sterling Construction, L.P. A/K/A Texas Sterling Construction Inc. A/K/A Texas Sterling, L.P.

• Court: Court of Appeals of Texas
• Decided: March 29, 2007
• Docket: 14-05-01061-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 29, 2007

Affirmed and Memorandum Opinion filed March 29, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01061-CV

DAVID ROGERS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LEROY BROWN, Appellant

V.

TEXAS STERLING CONSTRUCTION, L.P. A/K/A TEXAS STERLING CONSTRUCTION, INC. A/K/A TEXAS STERLING, L.P., Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2004-05023

M E M O R A N D U M   O P I N I O N

Appellant David Rogers, individually and as representative of the Estate of Leroy Brown, appeals from the trial court=s grant of summary judgment in favor of appellee Texas Sterling Construction, L.P. a/k/a Texas Sterling Construction, Inc. a/k/a Texas Sterling, L.P. (ATexas Sterling@) for wrongful death and survival claims.  We affirm. 

I.  Factual and Procedural Background

On August 24, 2002, Leroy Brown fell on a sidewalk near the Fiesta supermarket located at approximately 4100 San Jacinto Street in Harris County, Texas (the AFiesta sidewalk@).  Brown, who suffered from advanced leukemia, died one week later.  David Rogers, the appellant and Brown=s alleged heir at law, sued the City of Houston, the Metropolitan Transit Authority (AMETRO@), and Texas Sterling, asserting claims under the wrongful death and survival statutes.  Rogers alleged that Brown, while walking to catch a bus, tripped over an exposed reinforcing bar (Arebar@) protruding from the concrete sidewalk, which the defendants left in place while performing construction there.  Specifically, Rogers contended the defendants negligently failed to (1) Asafeguard pedestrians from work materials,@ (2) Atake necessary steps to protect [Brown] from ongoing construction work,@ (3) Atake proper measures to block pedestrians from walking in the construction area,@ and (4) Aprovide proper and safe means of crossing the street or catching a bus.@

Texas Sterling thereafter filed a no-evidence motion for summary judgment.^[1]  Texas Sterling claimed Rogers had no evidence of standing because he failed to produce a copy of his birth certificate or evidence that he was the executor or administrator of Brown=s estate.  Texas Sterling further contended Rogers provided no evidence of duty, breach, proximate cause, or damages.

In response, Rogers countered that he had standing because he was Brown=s biological, non-marital son and thus an heir at law.  In support, Rogers submitted affidavits in which both he and his mother explained that the circumstances of Rogers=s birth together with Brown=s support of Rogers and representations to others established that Brown was his biological father.  Rogers also averred that Brown=s estate had no debts, his siblings had reached a family settlement plan for the assets of the estate, and no administration was pending or necessary.  Rogers further attached evidence in support of his negligence claim, including copies of (1) a contract between Texas Sterling and METRO for the reconstruction of a portion of San Jacinto Street, (2) deposition testimony of Kevin Manning, Texas Sterling=s risk manager, (3) Texas Sterling=s discovery admissions, (4) Texas Sterling=s insurance policies for the construction project, (5) photographs of the accident scene taken after the fall, (6) Brown=s medical records, including various patient information records from his trip to the hospital, a Adeath summary,@ and a death certificate, and (7) affidavits from three emergency medical technicians (AEMTs@) who cared for and took Brown to the hospital after his fall. 

As to Texas Sterling=s duty to make safe or warn of defects on the Fiesta sidewalk, Rogers maintained the contract showed Texas Sterling Ahad control of the area and was responsible for safety in the area@ where Brown fell because it required the firm to comply generally with federal, state, local, and METRO safety rules and specifically to Aprovide warning signs, barricades and verbal warnings as required.@  Rogers also pointed to deposition excerpts in which Manning testified that Texas Sterling had Aultimate responsibility@ for Aall safety on the construction site,@ including Akeeping the work site clean,@ A[keeping] debris and stuff of [sic] the sidewalk,@ Acheck[ing daily] for safety hazards [on the project],@ ensuring workers performed operations Ain a way that was safe for pedestrians,@ keeping Apedestrian walkways and bus stops . . . clean and functional,@ and Amaintain[ing] traffic control and pedestrian devices.@  Rogers additionally noted Manning=s statements that it would be Texas Sterling=s responsibility if it Adid not keep [its] debris off the sidewalk and someone tripped over that debris@ and that Arebar knee high across the sidewalk . . . would not be clean and functional.@

As to breach, Rogers cited the EMTs= observations that the general area where Brown fell was under construction and that on Athe sidewalk next to the Fiesta store,@ rebar protruded from the concrete, no barriers blocked off pedestrian traffic, and rebar remained even after the incident.  Rogers further asserted that pictures allegedly taken after the incident revealed the Adangerous conditions at the scene.@  As to causation and damages, Rogers noted both the EMTs= conclusions that Brown had in fact tripped over the rebar and suffered resulting injuries and the medical records indicating Brown had fallen face-first onto the sidewalk and came to the hospital with a cervical spine fracture, which was listed as the immediate cause of death on Brown=s death certificate.

Texas Sterling replied, challenging Rogers=s evidence and contentions regarding duty by attaching additional excerpts of Manning=s deposition testimony in which he stated repeatedly that Texas Sterling was not responsible for the Fiesta sidewalk because it fell Aoutside the scope of the contract.@  Therefore, Manning maintained that Texas Sterling neither worked on nor had a duty to discover and correct exposed rebar on the Fiesta sidewalk.

After hearing the motions, responses, evidence, and arguments, the trial court granted Texas Sterling=s motion without specifying its grounds.  Rogers now appeals, claiming the trial court erred in granting summary judgment because fact issues remain regarding whether he has standing to bring his wrongful death and survival claims and on each element of his negligence cause of action. 

II.  Standard of Review

The party moving for no‑evidence summary judgment must assert only that there is no evidence of one or more essential elements of a claim or defense on which the non‑movant would have the burden of proof at trial.  See Tex. R. Civ. P. 166a(i).  The burden then shifts to the non‑movant to produce evidence raising a fact issue on the challenged elements.  See id.  A no‑evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.  Id.; see Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (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.  Forbes, 124 S.W.3d at 172.  More than a scintilla of evidence exists if it would allow reasonable and fair‑minded people to differ in their conclusions.  Id.  As with a traditional summary judgment, we view the evidence in the light most favorable to the non‑movant, disregarding all contrary evidence and inferences.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

Furthermore, when the trial court does not specify the basis for its summary judgment, we will affirm the judgment if any one of the theories advanced in the motion is meritorious.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).  In other words, the appealing party must show each independent ground alleged is insufficient to support the summary judgment granted.  See Star‑Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

III.  Analysis

We first address Rogers=s second point of error and determine whether he raised a fact issue regarding duty.  Rogers contends the evidence shows Texas Sterling undertook a duty to provide Asafety in the area@ where Brown fell, including the Fiesta sidewalk.  Texas Sterling counters that Rogers produced no evidence that it had control of the Fiesta sidewalk and thus owed Brown a duty.  We agree with Texas Sterling. 

Whether the defendant owed a duty to the plaintiff is a question of law for the court to decide from the particular facts of the case.  Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 289 (Tex. 1996).  An owner or occupier of land generally has a duty to use reasonable care to make and keep the premises safe for business invitees.  See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).  However, a party who does not own the premises generally must assume control over and responsibility for the premises before becoming subject to liability for a dangerous condition existing on the premises.  See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986).  AIt is possession and control which generally must be shown as a prerequisite to liability.@  Id.; see Barefield v. City of Houston, 846 S.W.2d 399, 403 (Tex. App.CHouston [14th Dist.] 1992, writ denied) (ALiability follows control.@).^[2]  Indeed, only a general contractor in control of the premises may be liable to a business invitee or independent contractor for negligence arising from failing to keep the premises safe from defects.^[3]  Olivo, 952 S.W.2d at 527; see Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985) (AA general contractor on a construction site, who is in control of the premises, is charged with the same duty as an owner or occupier.@ (emphasis added)).  Control can be demonstrated by ownership, occupation, management, or possession of the premises.  See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997).  Control can be proven by either a contractual agreement expressly assigning the right of control or an actual exercise of control.  Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002).  Determining whether a contract provides a right of control is generally a question of law.  Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001).   

We find Rogers did not meet his burden to raise a fact issue on duty by producing more than a scintilla of evidence that Texas Sterling controlled the Fiesta sidewalk.  In arguing that the contract obliged Texas Sterling to make the Fiesta sidewalk safe, Rogers primarily relies on provisions requiring adherence to various safety regulations and use of physical barriers, warning signs, and verbal warnings.  However, these provisions do not expressly address safety at the Fiesta sidewalk.  In fact, many of the contract=s provisions relating to safety and Acleaning up@ expressly limit their application to Athe Work,@ Ajob site, or Awork area and premises.@  Moreover, though the contract defines Athe Work@ generally as the AReconstruction of San Jacinto Street [from] Blodgett to Holman,@ it provides that Athe Work@ must be performed in accordance with ATechnical Specifications and Drawings,@ an exhibit demarcating the specific parameters of the project.  Rogers failed to attach this exhibit to his response, and the contract does not otherwise expressly assign Texas Sterling the right to work or duty to provide safety on the Fiesta sidewalk.  See Jackson v. Houston Lighting & Power Co., No. 01‑00‑00513‑CV, 2001 WL 953411, at *4 (Tex. App.CHouston [1st Dist.] Aug. 23, 2001, no pet.) (not designated for publication) (finding no evidence that appellee had control of premises containing anchor protruding from sidewalk because appellant produced no evidence of boundaries of appellee=s easement on which appellant alleged anchor resided).   

Furthermore, in contending that Texas Sterling admitted a duty to make the Fiesta sidewalk safe for pedestrians, Rogers misinterprets both Manning=s testimony and Texas Sterling=s discovery admissions.  Reading Manning=s testimony in context reveals that Manning described Texas Sterling=s duty to make sidewalks safe only in terms of Athe construction site@ or Aonsite.@  Significantly, Manning repeatedly testified that the Fiesta sidewalk fell outside the scope of the contract, and, as such, Texas Sterling never performed work on this sidewalk.  In its discovery admissions, Texas Sterling conceded only that it served as the general contractor for the project described in the contract and that the Fiesta sidewalk=s address falls within the project area=s general boundaries.  Such admissions are general in nature and do not establish Texas Sterling=s specific control of the Fiesta sidewalk.  Finally, the EMTs= observations that the general area around the Fiesta sidewalk was under construction create only speculation or surmise as to whether Texas Sterling controlled this sidewalk.  See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) (noting that evidence creating mere speculation or surmise of existence of fact constitutes no evidence).  Because the evidence does not show Texas Sterling controlled the Fiesta sidewalk and thus owed a duty to Brown, we hold the trial court could have properly granted summary judgment on the ground that Rogers produced no evidence of duty.  See Mathis v. RKL Design/Build, 189 S.W.3d 839, 845 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (holding that architectural firm preparing plans for building=s construction owed no duty to contractor injured at building because contractual and actual duties showed firm did not control building on date of accident); Holman v. KRJ Mgmt., Inc., No. 14-03-00017-CV, 2004 WL 502934, at *2B3 (Tex. App.CHouston [14th Dist.] Mar. 16, 2004, no pet.) (mem. op.) (holding that landscaping company owed no duty to condominium complex tenant who slipped on muddy sidewalk because contract did not assign company right of control over sidewalks and did not address safety inspection duties as to sidewalks); Univ. of Houston v. Sterling Bank, 963 S.W.2d 93, 95 (Tex. App.CHouston [14th Dist.] 1997, pet. denied) (noting that occupier of premises owes no duty of care to those outside occupied premises for conditions occupier did not create and holding that bank leasing glassed-off area within university campus center owed no duty to employee who fell outside area under bank=s control, according to express terms of lease).

Because we find that the trial court could have properly granted summary judgment on the ground that Rogers failed to produce sufficient evidence of duty, we overrule Rogers=s second point of error and need not address his remaining points.  See Joe, 145 S.W.3d at 157.

We affirm the trial court=s judgment.  

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed March 29, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  In its brief, Texas Sterling describes its motion for summary judgment to also include a traditional motion.  Neither the record nor the rules support this description.  Texas Sterling labeled the motion as Atraditional@ only in an introductory paragraph heading and attached only pleadings as evidence.  See Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (AGenerally, pleadings are not competent evidence, even if sworn or verified.@).  The remainder of the motion, however, is labeled as a Ano-evidence@ motion and includes repeated citations only to the no-evidence rule.  See Tex. R. Civ. P. 166a(i).  Although motions need not contain headings to clearly delineate between traditional and no-evidence bases, they must otherwise meet Rule 166a=s requirements, which includes affording adequate notice of the grounds sought.  See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Travis v. City of Mesquite, 830 S.W.2d 94, 101 (Tex. 1992).  We find that Texas Sterling failed to give Rogers adequate notice of its intent to seek a traditional summary judgment, and thus we construe its motion as seeking only a no-evidence summary judgment.  Cf. Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 741 n.1 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (holding that movant failed to provide fair notice it sought no-evidence summary judgment where it was unclear whether movant brought motion under Rule 166a(b) or Rule 166a(i)). 

^[2]  We recognize that several exceptions exist to this general rule.  See, e.g., Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997) (noting that party not in control of premises at time of injury may owe duty to make premises safe where party creates dangerous condition or agrees to make safe known, dangerous condition).  However, neither party presented these exceptions to the trial court or to this court.  See Tex. R. App. P. 33.1. 

^[3]  We have misgivings that Brown qualifies as an invitee.  See McCaughtry v. Barwood Homes Ass'n, 981 S.W.2d 325, 329 (Tex. App.CHouston [14th Dist.] 1998, pet. denied) (defining invitee as Aa person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit@).  We nevertheless invoke the above duty analysis, as Texas Sterling fails to contend that it owed Brown no duty because he did not qualify as an invitee, and neither party otherwise addresses Brown=s status.  Cf. Scurlock v. Pennell, 177 S.W.3d 222, 225 & n.1 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (applying premises liability duty of landlords to protect invitees from third-party criminal acts to appellant not qualifying as invitee because appellee failed to contend that no duty arose because appellant lacked invitee status).