Ernest Pacheco v. EOG Resources INC.

• Court: Court of Appeals of Texas
• Decided: December 29, 2021
• Docket: 10-21-00051-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00051-CV

ERNEST PACHECO, Appellant v.

EOG RESOURCES INC., Appellee

From the 12th District Court Walker County, Texas Trial Court No. 1929164

MEMORANDUM OPINION

Ernest Pacheco brought a premises liability action against EOG Resources, Inc.

EOG filed a traditional and no-evidence motion for summary judgment. After a hearing,

the trial court granted EOG’s motion for summary judgment. We affirm.

BACKGROUND FACTS

EOG, an oil and gas production company, and Premier Tank Truck Services

(Premier) entered into an agreement in which Premier would provide services at EOG well sites. Premier employees were designated as independent contractors under the

agreement. Ernest Pacheco was an employee of Premier Tank Truck Service. On April

2, 2017, Pacheco was dispatched to an EOG well site to remove solid waste from the well

site to a designated disposal facility. When he stepped down from his truck, Pacheco

stepped into a hole filled with water and injured his knee.

In its motion for traditional and no-evidence motion for summary judgment, EOG

argued that Chapter 95 of the Civil Practice and Remedies Code applied. EOG

additionally argued that summary judgment was proper under the no-evidence standard

set out in TEX. R. CIV. P. 166a (i) because there was a lack of competent evidence of: (1) a

concealed condition that presented an unreasonable risk of harm; (2) actual or

constructive knowledge that a premises condition posed an unreasonable risk of harm;

(3) breach of duty; and (4) proximate causation.

STANDARD OF REVIEW

We review a trial court's summary judgment de novo. Provident Life & Accident

Insurance Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant in a traditional

summary judgment motion must show that there is no genuine issue of material fact and

that he is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Nixon v. Mr.

Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing a traditional motion

for summary judgment, we must consider whether reasonable and fair-minded jurors

could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire

Pacheco v. EOG Resources INC. Page 2 & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2 007). We must consider all the evidence

in the light most favorable to the nonmovant, indulging every reasonable inference in

favor of the nonmovant and resolving any doubts against the motion. See id. at 756. In

our review, we take the nonmovant's competent evidence as true. Diversicare Gen.

Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).

A no-evidence motion for summary judgment is essentially a motion for pretrial

directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006); see also

Humphrey v. Pelican Isle Owners Ass'n, 238 S.W.3d 811, 813 (Tex. App. —Waco 2007, no

pet.). Once such a motion is filed, the burden shifts to the nonmoving party to present

evidence raising an issue of material fact as to the elements specified in the motion.

Tamez, 206 S.W.3d at 583. The nonmovant must produce "summary judgment evidence

raising a genuine issue of material fact." TEX. R. CIV. P. 166a (i). When determining if

more than a scintilla of evidence has been produced, the evidence must be viewed in the

light most favorable to the nonmovant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601

(Tex.2004).

When a party moves for summary judgment under both traditional and no

evidence motions for summary judgment, we first review the trial court's summary

judgment under the standards of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d

at 600. Rule 166a (i) provides that:

A party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on Pacheco v. EOG Resources INC. Page 3 which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence.

TEX. R. CIV. P. 166a (i).

SUMMARY JUDGMENT

In the first issue, Pacheco argues that the trial court erred in granting EOG’s

motion for summary judgment because there were fact issues on each of the elements of

his premises liability lawsuit. In the second issue, Pacheco argues that Chapter 95 of the

Texas Civil Practice and Remedies Code does not apply as a matter of law to the facts of

this case. In the third issue, Pacheco argues that there is a fact issue regarding whether

EOG had constructive knowledge of an unreasonably dangerous condition on its

premises.

Chapter 95 of the Texas Civil Practice and Remedies Code applies only to a claim:

(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and (2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.

TEX. CIV. PRAC. REM. CODE ANN. § 95.002 (West).

The general rule is that an owner or occupier does not have a duty to see that an

independent contractor performs work in a safe manner. Redinger v. Living, Inc., 689

S.W.2d 415, 418 (Tex. 1985). Under the common law, an independent contractor or its

employee can recover against a property owner for premises liability or negligence if the

Pacheco v. EOG Resources INC. Page 4 owner exercised some control over the relevant work and either knew or reasonably

should have known of the risk or danger. Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 561

(Tex. 2016). When Chapter 95 applies, however, it grants the property owner additional

protection by requiring the plaintiff to prove that the owner "had actual knowledge of

the danger or condition," so the owner is not liable based merely on what it reasonably

should have known. TEX. CIV. PRAC. & REM. CODE § 95.003(2); Ineos USA, LLC v. Elmgren,

505 S.W.3d at 561.

EOG contracted with Premier Tank Truck Service to remove waste products from

the well site. Pacheco was dispatched to the EOG well site to remove solid waste from

the well site and transport them to a disposal facility. There is nothing in the summary

judgment evidence to show that EOG exercised any control over the work of Premier

Tank Truck Service or Pacheco. Therefore, EOG did not owe a duty to Pacheco as an

employee or borrowed servant.

Moreover, there is no summary judgment evidence that EOG knew or reasonably

should have known about the hole. An owner's or occupier's knowledge of a dangerous

condition can be actual or constructive. Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014);

Daniels v. Allsup's Convenience Stores, Inc., 604 S.W.3d 461, 466 (Tex. App. —Amarillo 2020,

pet. den’d). Actual knowledge is knowledge "of the dangerous condition at the time of

the incident, not merely the possibility that a dangerous condition could develop over

time." City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14 (Tex. 2008) (per curiam); Daniels

Pacheco v. EOG Resources INC. Page 5 v. Allsup's Convenience Stores, Inc., 604 S.W.3d at 466. "Constructive knowledge is a

substitute in the law for actual knowledge." Daniels v. Allsup's Convenience Stores, Inc.,

604 S.W.3d at 466. In premises liability cases, constructive knowledge can be established

by showing that the dangerous condition had existed long enough for the owner or

occupier to have discovered it upon reasonable inspection. CMH Homes, Inc. v. Daenen,

15 S.W.3d 97, 102 (Tex. 2000); Daniels v. Allsup's Convenience Stores, Inc., 604 S.W.3d at 466.

In applying this "time-notice rule," courts have analyzed "the combination of proximity,

conspicuity, and longevity." Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567-68 (Tex.

2006); Daniels v. Allsup's Convenience Stores, Inc., 604 S.W.3d at 466.

Pacheco does not know when the hole was created. Pacheco only knew that the

hole was there when he arrived on the premises at approximately 6:45 p.m. and was there

at 7:45 p.m. when he stepped out of his truck. Pacheco asserts in his brief that because

the hole was filled with water, it would have taken at least fifteen hours for rain to have

filled the nine-inch hole. However, there is no summary judgment evidence establishing

this time frame. The summary judgment evidence does not establish that the alleged

dangerous condition, the hole, existed long enough for EOG to have discovered it upon

reasonable inspection. Accordingly, there is no summary judgment evidence that EOG

had constructive notice of the hole. The trial court did not err in granting EOG’s motion

for summary judgment. We overrule the first issue and third issues. Because we find

that the summary judgment evidence does not establish that EOG owed a duty to

Pacheco v. EOG Resources INC. Page 6 Pacheco or that EOG had constructive knowledge of the hole, we need not determine

whether Chapter 95 of the Civil Practice and Remedies Code applies to the facts of this

case. Therefore, we need not address the second issue. See TEX. R. APP. P. 47.1.

In the fourth issue, Pacheco argues that there is evidence that he was injured as a

result of stepping into a hole on EOG’s premises. In the fifth issue, Pacheco argues that

he was an invitee on EOG’s premises and EOG owed a duty of care. Because of our

disposition of Pacheco’s first and third issues, we need not address the fourth and fifth

issues. See TEX. R. APP. P. 47.1.

SUMMARY JUDGMENT EVIDENCE

In the sixth issue, Pacheco argues that EOG’s objections to his initial summary

judgment evidence were never ruled upon by the trial court. In the seventh issue,

Pacheco argues that EOG’s objections to his additional summary judgment evidence were

never ruled upon by the trial court.

On December 11, 2020, EOG filed objections to Pacheco’s summary judgment

evidence specifically complaining about the affidavit of Pacheco. There is nothing in the

record to indicate the trial court ruled on EOG’s objections. Pacheco contends that the

trial court erred to the extent it considered EOG’s objections to his affidavit. Because

there is nothing in the record to indicate that the trial court considered and sustained

EOG’s objections, we have not excluded consideration of the affidavit in our review of

the trial court’s judgment. We overrule the sixth issue.

Pacheco v. EOG Resources INC. Page 7 On December 11, 2020, Pacheco filed a motion for leave to file an additional

response to EOG’s motion for summary judgment. There is nothing in the record to show

that the trial court ruled on Pacheco’s motion to file an additional response. Pacheco

contends that the trial court erred to the extent it did not consider his additional summary

judgment evidence. Because the motion to file an additional response to EOG’s motion

for summary judgment was filed three days before the scheduled hearing, Pacheco was

required to obtain leave of court. The trial court did not grant Pacheco leave to file

additional summary judgment evidence. Therefore, we cannot say that the trial court

erred in failing to consider the additional summary judgment evidence. We overrule the

seventh issue.

CONCLUSION

We affirm the trial court’s judgment.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed December 29, 2021 [CV06]

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