John Johnson and Sherilyn Johnson and One Beacon Insurance Inc v. Texas Genco L.P, Incorrectly Named as Reliant Energy Inc.

• Court: Court of Appeals of Texas
• Decided: May 23, 2006
• Docket: 14-05-00473-CV
• Status: Published

Opinion

Reversed and Remanded and Memorandum Opinion filed May 23, 2006

Reversed and Remanded and Memorandum Opinion filed May 23, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00473-CV

JOHN JOHNSON, SHERILYN JOHNSON, AND

ONE BEACON INSURANCE, INC., Appellants

V.

TEXAS GENCO, L.P., INCORRECTLY NAMED AS RELIANT ENERGY, INC., Appellee

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 03-03646

M E M O R A N D U M   O P I N I O N

This is an appeal from the granting of a no-evidence summary judgment in favor of the defendant in a premises liability case. Appellants, John and Sherilyn Johnson,^[1] filed suit against appellee, Texas Genco, L.P., incorrectly named as Reliant Energy, Inc., for injuries caused by a fall Johnson experienced while working on appellee=s premises. Finding the Johnsons met their burden and produced sufficient summary judgment evidence to raise genuine issues of material fact, we reverse and remand to the trial court for further proceedings in accordance with this opinion.

Factual and procedural background

In June 2001, Tropical Storm Allison caused record flooding in the Houston area. The storm damaged the phone lines at appellee=s Greens Bayou Energy Plant. Appellee retained Johnson=s services through C.W. Henderson, his employer. Johnson was hired to pull phone cable through a series of manholes at the plant.

On or about September 13, 2001, Johnson was engaged in performing this work at appellee=s plant. The manhole where Johnson was performing the work was located in a field some distance from the road where the C. W. Henderson truck was parked.  Johnson noted a large log, approximately twenty to thirty feet long and eighteen to twenty-four inches in diameter blocking the path from the road to the manhole.  The log was in an area of tall grass and was only two to three feet from the road. Because accessing the manhole required that Johnson climb over the log repeatedly, Johnson complained about the log to his supervisor and filled out a safety concern form for his supervisor to deliver to appellee.

Johnson returned to work at the same site the next day. Johnson testified it was impractical to avoid crossing the log as it stretched from a pipe rack on one end to an area of high water on the other. Johnson avoided the high water because he had heard reports that a worker from another company had suffered a snake bite at that location. Johnson made numerous trips over the log that day. On one trip, Johnson stepped up onto the log to cross and when he stepped down, he stepped into a hole concealed by the tall grass and injured his ankle. Johnson estimated the grass was two to three feet tall around the log.

The grass areas of appellee=s plant were well maintained and resembled a golf course. The one exception to this was the area around the log where Johnson was required to work.  Appellee referred to the area where Johnson was working at the time of his fall as Area III. The Johnsons submitted as summary judgment evidence mowing records that showed appellee mowed the grass at the plant on a regular basis. These records indicate that Area III was last mowed about a month before Johnson=s fall. The invoice for the mowing shows that only eighty percent of Area III was mowed that day. The contract between appellee and the mowing company required appellee to inspect the work done by the mowing company within seventy-two hours of the completion of the work and report any problems with the mowing within that same time period.

The Johnsons filed suit asserting negligence and premises liability causes of action. In addition, Sherilyn Johnson asserted a loss of consortium claim. C. W. Henderson=s workers= compensation insurance carrier, One Beacon Insurance, Inc., intervened in the lawsuit to recover sums it spent to pay Johnson=s medical bills arising out of his injuries. Appellee filed a no-evidence motion for summary judgment arguing the Johnsons had no evidence that appellee had actual or constructive notice of the existence of a dangerous condition on its premises. The trial court granted appellee=s motion and entered a final summary judgment as both Sherilyn Johnson=s and One Beacon Insurance, Inc.=s claims were derivative of Johnson=s. The trial court denied the Johnsons= motion for new trial and this appeal followed. 

Discussion

The Johnsons raise four issues on appeal. In their first issue, the Johnsons argue they  produced more than a scintilla of evidence in response to appellee=s no-evidence motion for summary judgment, and therefore, the trial court erred in granting appellee=s motion. We agree with the Johnsons.

A. Standard of Review

After sufficient time for discovery has passed, a party may file a no-evidence motion for summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). In a no-evidence motion for summary judgment, the movant must specifically state the elements as to which there is no evidence. Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 711 (Tex. App.CHouston [1st Dist.] 2002, pet. denied). In reviewing a no-evidence summary judgment, we review the evidence in the light most favorable to the non-movant and disregard all evidence and inferences to the contrary. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.). We sustain a no-evidence summary judgment if (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Id. Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak so as to do no more than create a mere surmise or suspicion of its existence, and in legal effect is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions as to the existence of the vital fact. Id. Because the propriety of a summary judgment is a question of law, we review the trial court=s decision de novo. Brown v. Blum, 9 S.W.3d 840, 844 (Tex. App.CHouston [14th Dist.] 1999, pet. dism=d w.o.j.).

B. Elements of a Premises Liability Claim

In a premises liability case, the duty owed to a plaintiff depends on the status of the plaintiff at the time of the incident. M. O. Dental Lab v. Rape, 139 S.W.2d 671, 675 (Tex. 2004). Under Texas law, an invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit. McCaughtry v. Barwood Homes Ass=n, 981 S.W.2d 325, 329 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). The duty owed to an employee of a contractor working on the premises of an owner or occupier at the time of injury is that owed to a business invitee. Id. at 330. The parties do not dispute that Johnson was appellee=s invitee at the time of the incident.  Thus, appellee owed Johnson, as appellee=s invitee, a duty to exercise reasonable care to protect him from dangerous conditions on appellee=s premises known or discoverable by appellee. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). This duty is discharged by warning the invitee of unreasonable risks of harm either known to the owner or which would be known to him by reasonable inspection or making the premises reasonably safe. McCaughtry, 981 S.W.2d at 330. In order to prevail at a trial, a premises liability plaintiff must prove the following elements: (1) actual or constructive knowledge of some condition on the premises by the owner; (2) the condition posed an unreasonable risk of harm; (3) the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner=s failure to use such care proximately caused the plaintiff=s injuries. Gonzalez, 968 S.W.2d at 936.

C. Did the Johnsons Satisfy their Summary Judgment Burden?

To survive a no-evidence motion for summary judgment, the non-movant must produce more than a scintilla of evidence on each of the challenged elements of its claim. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Appellee challenged only the sufficiency of the evidence as to appellee=s actual or constructive notice of the existence of the dangerous condition. The Johnsons can meet their burden of providing evidence of constructive knowledge by appellee by producing sufficient summary judgment evidence to show that, more likely than not, the condition existed long enough for appellee to discover it upon reasonable inspection. See Gonzalez, 968 S.W.2d at 938; Keetch v. Kroger Co., 845 S.W.2d 262, 265B66 (Tex. 1992).

The Johnsons  produced the following summary judgment evidence: (1) Johnson was an invitee of appellee; (2) the log at issue was in a fairly advanced state of decomposition; (3) the log was in an area of tall grass two to three feet tall that obscured the hole; (4) Johnson was injured when he stepped off the log and into a hole concealed by the tall grass; (5) after stepping in the concealed hole, Johnson could not remove his foot from the hole until his co-workers lifted him up; (6) the log was only two to three feet from a road on appellee=s facility and blocked Johnson=s path to the manhole where he was required to work; (7) Johnson could not go around the log as both ends were blocked by obstacles; (8) appellee mowed the area where Johnson was injured on a regular basis; (9) the area was last mowed approximately a month before Johnson=s injury and during this last mowing, only eighty percent of the area was mowed; (10) under appellee=s contract with the mowing contractor, the mowing contractor was required to notify appellee when it had completed mowing an area and appellee was required to inspect that area within seventy-two hours of the contractor=s notice; (11) with the exception of the area where Johnson was injured, appellee=s facility was mowed and manicured like a golf course. Applying the summary judgment standard of reviewing the evidence in the light most favorable to the non-movant and disregarding all evidence and inferences to the contrary; we hold that the Johnsons met their burden of producing more than a scintilla of evidence that it was more likely than not that the dangerous condition created by the combination of the log, tall grass, and hole, had existed long enough for appellee to be charged with constructive notice of that dangerous condition.^[2] Because the Johnsons presented summary judgment proof raising a genuine issue of material fact as to whether appellee had actual or constructive notice of the dangerous condition on appellee=s premises, we sustain the Johnsons= first issue.

Conclusion

Having sustained the Johnsons= first issue, we need not address their remaining issues.  Accordingly, we reverse the judgment of the trial court and remand this case to the trial court for further proceedings consistent with this opinion.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 23, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

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^[1]  When referring to appellant John Johnson we use AJohnson.@ When referring to appellant, Sherilyn Johnson, we use her full name.

^[2]  Appellee argues the dangerous condition at issue was only the hole, and not the combination of tall grass, rotten log, and hole as alleged by the Johnsons. We disagree that a dangerous condition cannot be created by a combination of factors such as those involved in this case. In addition, appellee argues the area where Johnson was injured was an untraveled area of appellee=s plant with no functional purpose and insinuates that it was practically a wilderness area. Once again, applying the summary judgment standard of review, we disagree. The log was in a field that was regularly mowed in a facility that was manicured like a golf course. Further, the log was only two to three feet from a road, not in an isolated and remote location. In addition, the area clearly served a function in as much as Johnson=s injury occurred in close proximity to a manhole where he was performing services for appellee.