Opinion issued August 8, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00733-CV ——————————— JESUS GARCIA, Appellant V. MTZ TRUCKING, INC., Appellee
On Appeal from the 113th District Court Harris County, Texas Trial Court Case No. 2015-55326
MEMORANDUM OPINION
Appellant, Jesus Garcia, challenges the trial court’s rendition of summary
judgment in favor of appellee, MTZ Trucking, Inc., in his suit for negligent
training and supervision and gross negligence. In his sole issue, Garcia contends
that the trial court erred in granting MTZ Trucking summary judgment. We affirm.
Background
In his second amended petition, Garcia alleges that he was hired by MTZ
trucking to “operate dump trucks.” On July 3, 2014, while working as an employee
of MTZ Trucking, he delivered a load of product to the premises of Perfect Plastic
Recycling, Inc., a company “owned, operated, and managed” by Viral Thakkar. On
that day, in the course of making his delivery, Garcia’s end-dump truck “came into
contact with a live power line” on Perfect Plastic’s premises. Garcia suffered
serious and permanent injuries as a result.
Garcia brought claims against MTZ Trucking for negligent training and
supervision and gross negligence.1 Garcia asserted that MTZ Trucking owed a
legal duty to train and supervise its employees, including Garcia; it breached its
duty; and its breach proximately caused Garcia’s injuries. More specifically,
Garcia alleged that MTZ Trucking failed to provide him with training on “the
operation of the machinery,” that is, an end-dump truck; failed to supervise him “in
his work with dump trucks”; and failed to “properly train[] or supervise[] [him] on
avoiding electrical wires.” Garcia sought damages for past and future physical pain
and mental suffering, past and future loss of earning capacity, past and future
1 Garcia also brought claims against Perfect Plastic and Thakkar, who are not parties to this appeal.
2 medical expenses, past and future physical impairment, past and future physical
disfigurement, and “exemplary/punitive damages.”
MTZ Trucking answered, generally denying Garcia’s allegations and
asserting defenses. MTZ Trucking then filed a combined no-evidence and
matter-of-law motion for summary judgment, attaching exhibits. In the motion,
MTZ Trucking asserted that, as a matter of law, it did not owe a duty to train or
supervise Garcia “regarding any alleged dangerous condition asserted by [Garcia]
on . . . Perfect Plastic’s premises.” Further, it asserted that Garcia is “a seasoned
truck driver with over 33 years of experience,” he “had made over 100 deliveries
dumping materials for” MTZ Trucking, and he “had driven th[e] exact same
end[-]dump truck at least 15 previous times.” It therefore allegedly did not owe
him a duty to train and supervise him “to pay attention to his surroundings before
raising the [end-dump] truck’s trailer into power lines.” In other words, (1) because
Garcia was “experienced in the type of work he was doing” when he was injured,
(2) because “MTZ Trucking had no knowledge nor was it required to anticipate the
presence of electrical wires” on Perfect Plastic’s premises, and (3) because “the
dangers incident to electrical power lines are common and obvious to anyone,”
MTZ Trucking owed “no duty pertaining to the power lines or [Garcia]’s operation
of the truck.” And because the existence of a legal duty is an essential element of
3 Garcia’s claims, MTZ Trucking argued that it was entitled to judgment as a matter
of law.
In response to MTZ Trucking’s motion, Garcia asserted that MTZ Trucking
owed him the common-law duties to “hire, supervise, train, and retain competent
employees” and “to adequately hire, train, and supervise [inexperienced]
employees.” Garcia asserted that he “was not experienced in the work he was
assigned[,] which was the unloading of end dumps.” Further, according to Garcia,
MTZ Trucking had a “duty to train [him] under federal motor carrier safety law.”
Garcia attached exhibits to his response too.
In reply to Garcia’s response, MTZ Trucking argued that it did not owe
Garcia a “duty to properly train and supervise an inexperienced employee” because
Garcia was not inexperienced. Further, Garcia “fail[ed] to provide sufficient
evidence of a duty to train [him] for the specific dangers of overhead electrical
wires and the dangers of contact” between an end-dump truck and such wires.
According to MTZ Trucking, an employer owes no duty to warn an employee of
hazards that are commonly known or already appreciated by the employee. And
Garcia also “failed to provide sufficient evidence to establish” that MTZ Trucking
had “an additional duty pursuant to” federal motor carrier safety law.
The trial court granted MTZ Trucking summary judgment.
4 Standard of Review
We review a trial court’s decision to grant summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In
conducting our review, we take as true all evidence favorable to the nonmovant,
and we indulge every reasonable inference, and resolve any doubts, in the
nonmovant’s favor. Id. If a trial court grants summary judgment without specifying
the grounds for granting the motion, we must uphold the trial court’s judgment if
any of the asserted grounds is meritorious. Merriman v. XTO Energy, Inc., 407
S.W.3d 244, 248 (Tex. 2013); Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148
(Tex. App.—Houston [1st Dist.] 2005, pet. denied).
A party seeking summary judgment may combine in a single motion a
request for summary judgment under the no-evidence standard with a request for
summary judgment as a matter of law. See TEX. R. CIV. P. 166a(c), (i); Binur v.
Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). When a party has sought summary
judgment under both standards, we typically review the summary judgment first
under the no-evidence standard. See Merriman, 407 S.W.3d at 248; Deweese v.
Ocwen Loan Servicing L.L.C., No. 01-13-00861-CV, 2014 WL 6998063, at *2 n.1
(Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem. op.). However, we
may review the summary judgment under the matter-of-law standard first if it
would be dispositive. See Deweese, 2014 WL 6998063, at *2 n.1; Poag v. Flories,
5 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied); see also TEX. R.
APP. P. 47.1.
In a matter-of-law summary-judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and that the trial court should
grant judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat
Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
When a defendant moves for a matter-of-law summary judgment, it must either:
(1) disprove at least one essential element of the plaintiff’s cause of action or
(2) plead and conclusively establish each essential element of an affirmative
defense, thereby defeating the plaintiff’s cause of action. Lujan v. Navistar Fin.
Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Once
the movant meets its burden, the burden shifts to the nonmovant to raise a genuine
issue of material fact precluding summary judgment. See Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Tr.,
321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The
evidence raises a genuine issue of fact if reasonable and fair-minded jurors could
differ in their conclusions in light of all of the summary-judgment evidence. See
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
6 Summary Judgment
In his sole issue, Garcia argues that the trial court erred in granting MTZ
Trucking summary judgment on his claims for negligent training and supervision
and gross negligence because: (1) MTZ Trucking, as a “non-subscriber employer,”
“ha[d] a legal duty to train or supervise [Garcia] on the specific hazards associated
with operating an end dump in the vicinity of overhead electric wires when an
injury occurs outside the non-subscriber’s premises”; (2) “the hazard of unloading
an end dump in the vicinity of electric wires, and the risk of [electric shock] when
exiting a cab of the end dump that might be in contact with overhead electrical
wires,” were not “open and obvious hazards”; and (3) “there is a fact issue for the
jury whether the hazards were ‘open and obvious.’”
A. Employee Negligence Suit Against “Non-Subscribing” Employer
Ordinarily, to establish negligence, a plaintiff must establish a duty, a breach
of that duty, damages, and that the damages were proximately caused by the
breach. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The
“threshold inquiry” is “whether the defendant owes a legal duty to the plaintiff.”
Centeq Realty, 899 S.W.2d at 197. Whether a duty exists is a question of law for
the court to decide from the facts surrounding the occurrence in question. Id.;
Advance Tire & Wheels, LLC v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.—
7 Houston [1st Dist.] 2017, pet. dism’d). We review questions of law de novo.
Advance Tire & Wheels, 527 S.W.3d at 480.
The Texas Workers’ Compensation Act—see TEX. LAB. CODE §§ 401.001–
419.007—was enacted in response to the needs of employees who, despite
escalating industrial accidents, were increasingly being denied recovery for injuries
sustained in the course and scope of their employment. Kroger Co. v. Keng, 23
S.W.3d 347, 349 (Tex. 2000); Dodge, 187 S.W.3d at 529. The Act allows an
injured employee, whose employer subscribes to workers’-compensation
insurance, to recover without having to establish the employer’s fault and without
regard to the employee’s own negligence. See Keng, 23 S.W.3d at 349. In
exchange, the employee receives a lower, but more certain, recovery than would
have been possible under the common law. Id. at 350.
When, however, an employer opts out of the workers’-compensation system,
making it a “non-subscribing” employer, its employees retain their common-law
rights. Id.; Dodge, 187 S.W.3d at 529. In an employee’s suit against his or her
“non-subscriber” employer, the Act precludes the employer from asserting the
defenses “that: (1) the employee was guilty of contributory negligence; (2) the
employee assumed the risk of injury or death; or (3) the injury or death was caused
by the negligence of a fellow employee.” TEX. LAB. CODE § 406.033(a); see also
8 Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 200 (Tex. 2015); Dodge, 187 S.W.3d
at 529.
Here, the parties agree that MTZ Trucking is a “non-subscribing” employer,
making it responsible for its employees’ work-related injuries under common-law
negligence principles. See Keng, 23 S.W.3d at 349–50; Werner v. Colwell, 909
S.W.2d 866, 868 (Tex. 1995) (“Because Eastex is a workers’ compensation
nonsubscriber, Colwell must establish negligence by Eastex in order to recover.”).
At common law, employers owe certain nondelegable and continuous duties
to their employees who are acting in the course and scope of the employment
relationship. See Keng, 23 S.W.3d at 349–50; Dodge, 187 S.W.3d at 529. These
include the duties to warn about the hazards of employment; to supervise activities;
to furnish a reasonably safe workplace; to furnish reasonably safe instrumentalities
with which to work; and to provide necessary equipment, training, or supervision.
See Elwood, 197 S.W.3d at 794; Advance Tire & Wheels, 527 S.W.3d at 480;
Dodge, 187 S.W.3d at 529.
However, a “non-subscribing” employer’s common-law duties to its
employees do not make it an insurer of its employees’ safety. Elwood, 197 S.W.3d
at 794. An employer owes no duty to warn its employee of hazards that are
commonly known or already appreciated by the employee. Jack in the Box, Inc. v.
9 Skiles, 221 S.W.3d 566, 568 (Tex. 2007); Elwood, 197 S.W.3d at 794.2 This rule
means, for example, that an employer owes “no duty to warn of ‘obvious risks’
that are common knowledge” and no “duty to train employees regarding the
commonly-known dangers of driving while fatigued.” Nabors Drilling, U.S.A., Inc.
v. Escoto, 288 S.W.3d 401, 412–13 (Tex. 2009).
B. Duty
In a portion of his sole issue, Garcia argues that the trial court erred in
granting MTZ Trucking summary judgment because: (1) MTZ Trucking “has a
legal duty to train or supervise [Garcia] on the specific hazards associated with
operating an end dump in the vicinity of overheard electric wires,” even though
Garcia’s injury did not occur on MTZ Trucking’s premises; (2) “the hazard of
unloading an end dump in the vicinity of electric wires, and the risk of [electric
shock] when exiting a cab of the end dump that might be in contact with overhead
electrical wires” are not “open and obvious hazards”; and (3) a fact issue exists as
to “whether the hazards were ‘open and obvious.’”
2 We note that, in his appellate brief, Garcia argues that Jack in the Box and similar cases “discuss the lack of a duty in a premises[-]liability case when the hazard to be warned against is ‘open and obvious.’” According to Garcia, this means that Jack in the Box and similar cases “are premises[-]liability cases” that “have no application” to Garcia’s claims. We disagree. The rule from Jack in the Box and Elwood that an employer has no duty to warn its employee of hazards that are commonly known or already appreciated by the employee may be applied to the employee’s negligence suit for injuries sustained off of premises owned or controlled by the employer.
10 1. Duty Allegations Pleaded
As an initial matter, we address Garcia’s purported claim for negligent
training and supervision arising out of his “exiting [the] cab of the end dump.”
Specifically, we look to Garcia’s second amended petition to determine whether he
alleged, as he now advocates on appeal, that MTZ Trucking had a duty to train or
supervise him on “the risk of [electric shock] when exiting a cab of the end dump
that might be in contact with overhead electrical wires.” Cf. Hand v. Dean Witter
Reynolds Inc., 889 S.W.2d 483, 489–90 (Tex. App.—Houston [14th Dist.] 1994,
writ denied) (addressing first “new negligence theory concerning appellees’ duty,
or lack thereof, as it relates to [plaintiff’s] negligence claim,” which “was not pled
in [plaintiff’s] original petition”).
“Pleadings, not motions, determine the issues and parameters of a contest.”
In re Energy Transfer Fuel, L.P., 298 S.W.3d 343, 346 n.2 (Tex. App.—Tyler
2009, orig. proceeding); accord Alashmawi v. IBP, Inc., 65 S.W.3d 162, 171 (Tex.
App.—Amarillo 2001, pet. denied); Ely v. Gen. Motors Corp., 927 S.W.2d 774,
782 (Tex. App.—Texarkana 1996, writ denied) (“[P]leadings . . . frame the issues
involved in ruling upon [a] summary judgment motion.”); Jobe v. Lapidus, 874
S.W.2d 764, 765–66 (Tex. App.—Dallas 1994, writ denied). A pleading setting
forth a claim for relief must contain a short statement of the causes of action
alleged “sufficient to give fair notice of the claim involved.” TEX. R. CIV. P. 47(a).
11 In determining whether a pleading meets this fair-notice standard, we are to
liberally construe the pleading, but, “[e]ven so, a liberal construction does not
require a court to read into a petition what is plainly not there.” Bos v. Smith, 556
S.W.3d 293, 306 (Tex. 2018) (internal quotation omitted).
In his second amended petition, Garcia brought claims against MTZ
Trucking for negligent training and supervision and gross negligence. Garcia
asserted that MTZ Trucking owed a legal duty to train and supervise its employees,
including Garcia; MTZ Trucking breached its duty; and MTZ Trucking’s breach
proximately caused Garcia’s injury. Garcia further pleaded:
[He] was hired by . . . MTZ Trucking to operate dump trucks, and . . . MTZ Trucking failed to provide [Garcia] with training on the operation of the machinery. . . . MTZ Trucking also failed to supervise [him] in his work with dump trucks. [He] was not properly trained or supervised on avoiding electrical wires.
He supported his claims against MTZ Trucking with the following factual
allegations:
On or about July 3, 2014, [Garcia] was transporting material for his employer, . . . MTZ Trucking, on . . . Perfect Plastic[’s] . . . premises. . . . Specifically, while [Garcia] was working on . . . Perfect Plastic[’s] . . . premises and under . . . Perfect Plastic[’s] . . . direction, his [end-dump truck] came into contact with a live power line, causing [his] injuries and damages . . . . There were no warning signs to this area to warn invitees of the dangerous condition nor were there protection barricades to prevent injuries to invitees such as that which occurred to [Garcia]. . . . Defendants negligently caused and negligently permitted such condition to exist and negligently failed to warn [Garcia] of the condition, despite the fact that Defendants knew, or in the exercise of ordinary care, should have known of the
12 existence of the condition and that there was a likelihood of someone being injured as happened to [Garcia]. More specifically, Defendants had actual or constructive knowledge of the condition on the premises and that the condition posed an unreasonable risk of harm. Defendants did not exercise reasonable care to reduce or eliminate the risk, and Defendants’ failure to use such care proximately caused [Garcia]’s injuries. Notably, Garcia does not, in his second amended petition, plead any facts
that would have put MTZ Trucking on notice that he was making a claim based on
MTZ Trucking’s purported duty to train or supervise him not to exit an end-dump
truck’s cab when the truck has struck, and is in continuing contact with, power
lines. See Bos, 556 S.W.3d at 306 (court not required to read into petition “what is
plainly not there”); Hand, 889 S.W.2d at 489–90. Thus, Garcia failed to allege any
claim arising out of MTZ Trucking’s purported duty to train or supervise Garcia on
cab-exiting. Accordingly, we restrict our review of Garcia’s negligent supervision
and training claims to what is actually contained in his second amended petition—
claims arising out of MTZ Trucking’s purported duty related to avoiding power
lines in the first place while operating the end-dump truck. See Alashmawi, 65
S.W.3d at 171 (refusing to consider duty argument advanced on appeal but not
contained in pleadings); Hand, 889 S.W.2d at 490 (“Thus, the question is whether
[defendants] had a duty to purchase the options or take necessary steps to purchase
the options because this was the only act of negligence alleged by [plaintiff] in her
petition.” (internal quotation omitted)).
13 2. MTZ Trucking’s Duty
MTZ Trucking argued in its motion for summary judgment that it was
entitled to summary judgment as a matter of law because it did not owe Garcia a
legal duty. MTZ Trucking argued that Garcia is “a seasoned truck driver with over
33 years of experience,” he “had made over 100 deliveries dumping materials for”
MTZ Trucking, and he “had driven th[e] exact same end[-]dump truck at least 15
previous times.” MTZ Trucking therefore contended that it owed Garcia no duty to
train and supervise him “to pay attention to his surroundings before raising the
[end-dump] truck’s trailer into power lines on . . . Perfect Plastic’s property while
[Garcia was] under . . . Perfect Plastic’s direction and control.”
Further, according to MTZ Trucking’s motion, Garcia was “experienced in
the type of work he was doing” when he was injured, MTZ Trucking had “no
knowledge nor was it required to anticipate the presence of electrical wires” on
Perfect Plastic’s premises, and “the dangers incident to electrical power lines are
common and obvious to anyone.” MTZ Trucking therefore argued that it owed
Garcia “no duty pertaining to the power lines or [Garcia]’s operation of the
[end-dump] truck” near such power lines. See Jack in the Box, 221 S.W.3d at 568
(employer owes no duty to warn its employees of hazards that are commonly
known or already appreciated by employee); Elwood, 197 S.W.3d at 794 (same).
14 MTZ Trucking attached to its motion the deposition testimony of Thakkar,
an owner of Perfect Plastic. In his deposition, Thakkar testified about another event
involving Garcia on Perfect Plastic’s premises. The event occurred “[a] few days
before” the incident in question. During the earlier event, Garcia was operating an
end-dump truck and “dumped product in about the very same area” where he was
operating the truck when he was later injured. During the earlier event, Garcia
drove his end-dump truck with the trailer up in the air, but Perfect Plastic’s
“spotter” was present and told Garcia “to stop” because Garcia “almost hit[] the
[electrical] wire” with his truck. According to Thakkar, on the day Garcia was
injured, the “[s]ame exact thing” happened again—Garcia drove his end-dump
truck with the trailer up in the air near the overhead electrical wires. This time,
however, Garcia hit the electrical wires with his truck.
MTZ Trucking also attached to its motion the deposition testimony of
Garcia. During his deposition, Garcia testified that when he applied for a job with
MTZ Trucking, he discussed his “experience as a truck driver” with MTZ
Trucking’s owner. According to Garcia, he has been a truck driver for
thirty-three years. While driving an end-dump truck, he “look[s] around [his]
surroundings before [he] move[s] [his] truck in to see if [he] can fit in and what’s
around [him].” Garcia agreed that “[p]art of [his] job as a truck driver is to know
the capacity of [his] truck” and its height and length. Before his injuries, Garcia
15 had successfully operated end-dump trucks, delivering product “many times while
working for MTZ [Trucking] without getting hurt.” He had practiced operating the
end-dump truck’s trailer-lifting mechanism several times. He had been on Perfect
Plastic’s premises before July 3, 2014, “three or four times,” driving the same
truck that he drove during the July 3, 2014 incident.
Garcia further testified that on the day of the incident, he entered Perfect
Plastic’s premises and was driving his end-dump truck, but he “didn’t see any
power lines.” He “wasn’t looking out for that. . . . [He] was paying attention to the
spotter.” He “didn’t look for” the power lines near his truck, or “just didn’t see
them,” because he “was paying attention to the spotter.” And when he later “got
out of [his] truck to go to the [truck’s] gate to open it up,” he “didn’t look” for the
power lines then either.
During his deposition, Garcia agreed that, “in general” with regard to
“abid[ing] by posted speed limits,” MTZ Trucking does not have “an obligation to
tell [him] that or to teach [him] that or to train [him about] that”—he “already
know[s] that.” That is because, according to Garcia, it is “common sense” to abide
by the speed limit. He contrasted the common sense of abiding by posted speed
limits with other, unforeseen events: “Yes. We know that. Things that I’ve been
through already, you know, I should know things. [Things] [t]hat I’ve never been
through, that’s where I have the problem.”
16 MTZ Trucking also attached to its motion the deposition testimony of its
owner, Angel Martinez. On the topic of training Garcia “how to deal with power
lines,” Martinez testified that Garcia “could pay attention out there” and that he
could “look around . . . [n]ot just for those wires, but he [has] to look around for
everything.” Further, Martinez explained that when he, a commercially licensed
truck driver with two and a half decades of experience, is “driving to a facility to
take a load,” he is concerned about and “looking out for things like a power line.”
MTZ Trucking also attached to its motion the affidavit of Bradley Hubbard,
a “transportation and securement specialist in the field of transportation and safety
management.” Hubbard testified that he has “management, transportation,
logistics, safety, and driving experience” and is “a certified trainer in Safety and
Compliance.” Hubbard testified that he investigated Garcia’s incident in order to
determine its cause. To do so, he reviewed photographs of the incident’s location
and Garcia’s, Thakkar’s, and Martinez’s depositions. He also relied on a section of
the “Texas Department of Public Safety CDL Handbook” that, according to his
affidavit, provides:
Hitting overhead objects is a danger. Make sure you always have overhead clearance. . . . Before you back into an area, get out and check for overhanging objects such as trees, branches, or electric wires. It’s easy to miss seeing them while you are backing. (Also check for other hazards at the same time.). (Emphases in original; internal quotations omitted.)
17 Based on his investigation, Hubbard opined that Garcia “had numerous
opportunities on the day of the incident to simply look and see the obvious
presence of the electrical power lines overhead.” He also opined that “Garcia’s
failure to pay attention to his surroundings[,] despite at least two decades of
driving experience and despite the fact [that] he previously even owned his own
trucking company[,]” caused his injury. According to Hubbard, “[o]ne of the first
things any driver is taught i[s] to make sure he is aware of what is around him.”
Hubbard opined that Garcia, given his “over twenty years of experience,” “should
have known this basic safety precaution.”
By its motion and the testimony from Thakkar, Garcia, Martinez, and
Hubbard, MTZ Trucking carried its summary-judgment burden to conclusively
disprove the duty element of Garcia’s negligence claims by bringing them within
the ambit of the rule that an employer owes its employees no duty to warn of
hazards that are commonly known or already appreciated by the employees. See
Jack in the Box, 221 S.W.3d at 568; Elwood, 197 S.W.3d at 794; Lujan, 433
S.W.3d at 704. Here, the dangers of operating an end-dump truck with its trailer up
in the air near overhead electrical wires would be commonly known to a
reasonable person. See Nabors Drilling, U.S.A., 288 S.W.3d at 412–13; Jack in the
Box, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at 794–95. Accordingly, we hold
that MTZ Trucking owed Garcia no duty “to train or supervise [Garcia] on the
18 specific hazards associated with operating an end[-]dump [truck] in the vicinity of
overheard electric[al] wires.”
To the extent that Garcia argues in his brief that MTZ Trucking, (a) under
the Restatement (Second) of Torts, owed him a duty to “exercise reasonable care”
for “undertak[ing], gratuitously or for consideration, to render services to another
which [it] should recognize as necessary for the protection of the other’s person or
things”3 and, (b) under federal motor carrier safety law, duties to “verify that
drivers are qualified to operate the commercial vehicle [that] they are to drive to
prevent serious harm to the driver and all of us” and to “not require or permit a
person to drive a commercial motor vehicle unless that person is qualified to drive
a commercial motor vehicle,” Garcia’s arguments are unavailing.4
Here, the incident that resulted in Garcia’s injuries arose from a
“hazard[] . . . commonly known or already appreciated by” Garcia. See Jack in the
Box, 221 S.W.3d at 568; Elwood, 197 S.W.3d at 794. When a hazard is commonly
known or already appreciated by the employee, the rule relieving an employer of
any duty to its employee relating to such a hazard operates as an exception to any
other duties that the employer may owe to the employee. 3 RESTATEMENT (SECOND) OF TORTS § 323 (1965) (“Negligent Performance of Undertaking to Render Services”). 4 We express no opinion on whether MTZ Trucking owed Garcia these purported duties. Further, we need not address MTZ Trucking’s assertion in its brief that Garcia failed to plead that it owed him duties under section 323 of the Restatement (Second) of Torts and federal motor carrier safety law. See TEX. R. APP. P. 47.1.
19 Next, in his brief, Garcia asserts that a fact issue exists as to “whether the
hazards in this case are open and obvious” and that he presented evidence “that the
hazard in question is not open and obvious.”
When an appellant must demonstrate the existence of a genuine issue of
material fact to defeat summary judgment, the appellant must direct us to the
evidence in the record that purportedly creates the fact issue. See Amboree v.
Bonton, No. 01-14-00846-CV, 2015 WL 4967046, at *7 (Tex. App.—Houston [1st
Dist.] Aug. 20, 2015, no pet.) (mem. op.); Bich Ngoc Nguyen v. Allstate Ins. Co.,
404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied) (“Merely citing
generally to voluminous summary judgment evidence in response to either a
no-evidence or traditional motion for summary judgment is not sufficient to raise
an issue of fact to defeat summary judgment. In the absence of any guidance from
the non-movant where the evidence can be found, the trial and appellate courts are
not required to sift through voluminous deposition transcriptions in search of
evidence to support the non-movant’s argument that a fact issue exists.” (internal
citations and quotation omitted)); Daniel v. Webb, 110 S.W.3d 708, 710 (Tex.
App.—Amarillo 2003, no pet.) (“It is not our duty to sua sponte conceive of
potential fact issues and then search the appellate record for evidence supporting
their existence.”); Yard v. DaimlerChrysler Corp., 44 S.W.3d 238, 243 (Tex.
App.—Fort Worth 2001, no pet.).
20 Here, Garcia’s appellate briefs provide no discussion or analysis about his
statement that a fact issue exists as to whether hazards in this case were “open and
obvious.” And he does not direct this Court to any evidence in the record raising
his purported fact issue. Accordingly, we need not address Garcia’s assertion that a
purported fact issue exists as to whether “the hazards in this case were open and
obvious.”
To sum up, we have held that MTZ Trucking owed Garcia no duty “to train
or supervise [Garcia] on the specific hazards associated with operating an
end-dump [truck] in the vicinity of overheard electric[al] wires.” We therefore
conclude that Garcia’s claims for negligent training and supervision must fail. See
Jack in the Box, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at 794–95. And
because the negligence claims fail, the gross-negligence claims fail too. See
Sanders v. Herold, 217 S.W.3d 11, 19–20 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (overruling appellants’ issue concerning their gross-negligence claim
because court of appeals also held that appellants’ negligence claim failed for lack
of duty); Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.—
Austin 1990, writ denied) (“[O]ne’s conduct cannot be grossly negligent without
being negligent.”). Accordingly, we hold that the trial court did not err in granting
MTZ Trucking summary judgment.
We overrule Garcia’s sole issue.
21 Due to our disposition, we need not address any of Garcia’s remaining
arguments in his appellate briefs. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court. We dismiss all pending motions as
moot.
Julie Countiss Justice
Panel consists of Justices Lloyd, Landau, and Countiss.