Marta Arredondo v. Techserv Consulting and Training, Ltd., T&D Solutions, LLC, and AEP Texas Central Company
This text of Marta Arredondo v. Techserv Consulting and Training, Ltd., T&D Solutions, LLC, and AEP Texas Central Company (Marta Arredondo v. Techserv Consulting and Training, Ltd., T&D Solutions, LLC, and AEP Texas Central Company) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 04-17-00609-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/22/2018 1:03 PM
No. 04-17-00609-CV FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS FOURTH JUDICIAL DISTRICT OF TEXAS 1/22/2018 1:03:16 PM SAN ANTONIO KEITH E. HOTTLE CLERK
Marta Arredondo, Appellant v.
AEP Texas Central Company, T&D Solutions, LLC, and TechServ Consulting & Training, Ltd., Appellees
Appeal from the 79th District Court of Brooks County, Texas {Hon. Richard Terrell Presiding}
BRIEF OF APPELLEE AEP TEXAS CENTRAL COMPANY
LAW OFFICE OF SCHAUER & SIMANK, P.C. AUDREY MULLERT VICKNAIR
Audrey Mullert Vicknair G. Don Schauer State Bar No. 14650500 State Bar No. 17733298 802 N. Carancahua, Ste. 2100 615 N. Upper Broadway, Ste. 700 Corpus Christi, Texas 78401-0038 Corpus Christi, Texas 78401-0781 (361) 884-5400; (361) 884-5401 fax (361) 884-2800; (361) 884-2822 fax avicknair@vicknairlaw.com dschauer@cctxlaw.com
Attorneys for Appellee AEP Texas Central Company
i TABLE OF CONTENTS INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT REGARDING ORAL ARGUMENT ...............................................x
ISSUES PRESENTED, RESTATED ........................................................................x
1. The trial court properly rendered summary judgment for AEP.
a. AEP owed no duty to the Plaintiff. 1. T&D is an independent contractor and Appellant fails to raise a genuine issue of material fact otherwise. Appellant does not allege AEP exercised actual control, and AEP did not have contractual control.
2. Appellant does not dispute that TechServ, the inspector, is an independent contractor as its contract with AEP specifically states; Appellant does not contend AEP had actual control and does not cite to any contractual provisions to the contrary.
b. Removing a stub pole and filling the hole with dirt is not an inherently dangerous activity.
2. Appellant does not challenge all of the arguments lodged in AEP's No- Evidence Motion for Summary Judgment, granted by the trial court. Specifically, AEP argued there was no evidence of foreseeability or proximate cause.
STATEMENT OF FACTS ........................................................................................1
I. Plaintiff’s Allegations ......................................................................................1
II. AEP Files a Traditional and No Evidence Motion for Summary Judgment (C.R. 28-202) ..................................................................................2
A. AEP’s Summary Judgment Evidence .......................................................3
III. Plaintiff’s Response ...........................................................................................7 A. Arredondo’s Summary Judgment Evidence ............................................ 7 ii IV. AEP’s Reply in Support of its Summary Judgment Motions ..........................10 V. Appellant’s First Supplemental Response ......................................................10
VI. AEP’s Sur-Reply..............................................................................................11
VII. T&D and TechServ’s Summary Judgment Motions .......................................11
SUMMARY OF THE ARGUMENT ......................................................................12
ARGUMENT ...........................................................................................................14
I. Standard of Review..........................................................................................14 II. Summary Judgment was Properly Granted to AEP ........................................16 A. AEP Owed No Duty to the Appellant: this Work was Performed by Independent Contractors ................................................................................16
1. Premises Liability ................................................................................16
2. Negligence and Gross Negligence .......................................................18
3. No Liability for the Work of Independent Contractors .......................20 B. Control Must be Actual or Contractual .................................................. 23 C. AEP Did Not Have Contractual Control Over T&D ................................24
D. Appellant Does Not Allege AEP Had Actual or Contractual Control Over TechServ; TechServ’s Status as an Independent Contractor is Unrebutted ...............................................................................29 III. The Removal of a Stub Pole is Not an Inherently Dangerous Activity..........29
IV. Appellant Has Not Addressed AEP’s No Evidence Motion Regarding Foreseeability or Proximate Cause ................................................................35
CONCLUSION ........................................................................................................36
PRAYER .................................................................................................................36
CERTIFICATE OF COMPLIANCE .......................................................................38 CERTIFICATE OF SERVICE ................................................................................38
iii INDEX OF AUTHORITIES
CASES Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627 (Tex. 1976) .................................17
Agric. Warehouse, Inc. v. Uvalle, 759 S.W.2d 691 (Tex.App.--Dallas 1988, writ denied).................................................................30 Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998) .......................23
Bastida v. Aznaran, 444 S.W.3d 98 (Tex.App.—Dallas 2014, no pet.) ..................19
Bontke v. Cargill Meat Logistics Solution, Inc., No. 07-12-00328-CV, 2014 WL 1493369, 2014 Tex.App. LEXIS 4048 (Tex.App.--Amarillo April 14, 2014, no pet.) (mem. op) ............................................................................................. 30, 31 BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485 (Tex. App.—San Antonio 2013, pet. denied) .....................................................15
Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471 (Tex.App.--El Paso 2008, no pet.) ............................................................... 20, 21 Cameron Mill & Elevator Co. v. Anderson, 34 Tex. Civ. App. 105, 78 S.W. 8 (1903), aff'd, 98 Tex. 156, 81 S.W. 282 (1904)........................................... 33, 34 Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995) ............................ 18, 19
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649 (Tex. 2007) ...... 30, 31, 33
Cincinnati Life Ins. v. Cates, 927 S.W.2d 623 (Tex. 1996).............................. 15, 35
City of Alton v. Sharyland Water Supply Corp., 402 S.W.3d 867 (Tex.App.--Corpus Christi 2013, pet. denied) ....................................................19
City of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597 (Tex.App.—San Antonio 2013, pet. denied) ......................................................14 City of Waco v. Kirwan, 298 S.W.3d 618 (Tex.
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ACCEPTED 04-17-00609-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/22/2018 1:03 PM
No. 04-17-00609-CV FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS FOR THE SAN ANTONIO, TEXAS FOURTH JUDICIAL DISTRICT OF TEXAS 1/22/2018 1:03:16 PM SAN ANTONIO KEITH E. HOTTLE CLERK
Marta Arredondo, Appellant v.
AEP Texas Central Company, T&D Solutions, LLC, and TechServ Consulting & Training, Ltd., Appellees
Appeal from the 79th District Court of Brooks County, Texas {Hon. Richard Terrell Presiding}
BRIEF OF APPELLEE AEP TEXAS CENTRAL COMPANY
LAW OFFICE OF SCHAUER & SIMANK, P.C. AUDREY MULLERT VICKNAIR
Audrey Mullert Vicknair G. Don Schauer State Bar No. 14650500 State Bar No. 17733298 802 N. Carancahua, Ste. 2100 615 N. Upper Broadway, Ste. 700 Corpus Christi, Texas 78401-0038 Corpus Christi, Texas 78401-0781 (361) 884-5400; (361) 884-5401 fax (361) 884-2800; (361) 884-2822 fax avicknair@vicknairlaw.com dschauer@cctxlaw.com
Attorneys for Appellee AEP Texas Central Company
i TABLE OF CONTENTS INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF THE CASE .............................................................................. viii
STATEMENT REGARDING ORAL ARGUMENT ...............................................x
ISSUES PRESENTED, RESTATED ........................................................................x
1. The trial court properly rendered summary judgment for AEP.
a. AEP owed no duty to the Plaintiff. 1. T&D is an independent contractor and Appellant fails to raise a genuine issue of material fact otherwise. Appellant does not allege AEP exercised actual control, and AEP did not have contractual control.
2. Appellant does not dispute that TechServ, the inspector, is an independent contractor as its contract with AEP specifically states; Appellant does not contend AEP had actual control and does not cite to any contractual provisions to the contrary.
b. Removing a stub pole and filling the hole with dirt is not an inherently dangerous activity.
2. Appellant does not challenge all of the arguments lodged in AEP's No- Evidence Motion for Summary Judgment, granted by the trial court. Specifically, AEP argued there was no evidence of foreseeability or proximate cause.
STATEMENT OF FACTS ........................................................................................1
I. Plaintiff’s Allegations ......................................................................................1
II. AEP Files a Traditional and No Evidence Motion for Summary Judgment (C.R. 28-202) ..................................................................................2
A. AEP’s Summary Judgment Evidence .......................................................3
III. Plaintiff’s Response ...........................................................................................7 A. Arredondo’s Summary Judgment Evidence ............................................ 7 ii IV. AEP’s Reply in Support of its Summary Judgment Motions ..........................10 V. Appellant’s First Supplemental Response ......................................................10
VI. AEP’s Sur-Reply..............................................................................................11
VII. T&D and TechServ’s Summary Judgment Motions .......................................11
SUMMARY OF THE ARGUMENT ......................................................................12
ARGUMENT ...........................................................................................................14
I. Standard of Review..........................................................................................14 II. Summary Judgment was Properly Granted to AEP ........................................16 A. AEP Owed No Duty to the Appellant: this Work was Performed by Independent Contractors ................................................................................16
1. Premises Liability ................................................................................16
2. Negligence and Gross Negligence .......................................................18
3. No Liability for the Work of Independent Contractors .......................20 B. Control Must be Actual or Contractual .................................................. 23 C. AEP Did Not Have Contractual Control Over T&D ................................24
D. Appellant Does Not Allege AEP Had Actual or Contractual Control Over TechServ; TechServ’s Status as an Independent Contractor is Unrebutted ...............................................................................29 III. The Removal of a Stub Pole is Not an Inherently Dangerous Activity..........29
IV. Appellant Has Not Addressed AEP’s No Evidence Motion Regarding Foreseeability or Proximate Cause ................................................................35
CONCLUSION ........................................................................................................36
PRAYER .................................................................................................................36
CERTIFICATE OF COMPLIANCE .......................................................................38 CERTIFICATE OF SERVICE ................................................................................38
iii INDEX OF AUTHORITIES
CASES Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627 (Tex. 1976) .................................17
Agric. Warehouse, Inc. v. Uvalle, 759 S.W.2d 691 (Tex.App.--Dallas 1988, writ denied).................................................................30 Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998) .......................23
Bastida v. Aznaran, 444 S.W.3d 98 (Tex.App.—Dallas 2014, no pet.) ..................19
Bontke v. Cargill Meat Logistics Solution, Inc., No. 07-12-00328-CV, 2014 WL 1493369, 2014 Tex.App. LEXIS 4048 (Tex.App.--Amarillo April 14, 2014, no pet.) (mem. op) ............................................................................................. 30, 31 BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485 (Tex. App.—San Antonio 2013, pet. denied) .....................................................15
Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471 (Tex.App.--El Paso 2008, no pet.) ............................................................... 20, 21 Cameron Mill & Elevator Co. v. Anderson, 34 Tex. Civ. App. 105, 78 S.W. 8 (1903), aff'd, 98 Tex. 156, 81 S.W. 282 (1904)........................................... 33, 34 Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195 (Tex. 1995) ............................ 18, 19
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649 (Tex. 2007) ...... 30, 31, 33
Cincinnati Life Ins. v. Cates, 927 S.W.2d 623 (Tex. 1996).............................. 15, 35
City of Alton v. Sharyland Water Supply Corp., 402 S.W.3d 867 (Tex.App.--Corpus Christi 2013, pet. denied) ....................................................19
City of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597 (Tex.App.—San Antonio 2013, pet. denied) ......................................................14 City of Waco v. Kirwan, 298 S.W.3d 618 (Tex. 2009) ............................................19
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) ....... 16, 18, 22
Columbia Med. Ctr. of Los Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008)..........................................................................................................18
iv Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983) .................................16 Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) ........................................15
E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48 (Tex. App.--Houston [14th Dist.] 2014, pet. dism'd) ................................ 17, 18
Fagerberg v. Steve Madden, Ltd., No. 03-13-00286-CV, 2015 WL 4076978 (Tex. App.--Austin July 3, 2015, no pet.) (mem. op.) ........................................23
Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903 (Tex.App.--Fort Worth 2009, pet. denied) .........................................................24 Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006) .................... 21, 23, 26, 27
Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998) (Gonzalez, J., concurring) ...............................................................19 Ford Motor Co. v. Ridgeway, 135 S.W.3d 598 (Tex. 2004) ...................................15
General Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008) .....................................17
Gillespie v. Hernden, 516 S.W.3d 541 (Tex.App.—San Antonio 2016, pet. denied) ..................................................... 15
Graff v. Beard, 858 S.W.2d 918 (Tex. 1993) ..........................................................21 Hanna v. Vastar Res., Inc., 84 S.W.3d 372 (Tex. App.--Beaumont 2002, no pet.).................................................................31
Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex. 1998) (per curiam) .....................................................................................27 Jacobs v. Huser Constr., Inc., 429 S.W.3d 700 (Tex.App.--San Antonio 2014, no pet.) ................................................. 20, 24, 28
KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70 (Tex. 2015) ......................................14
Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) ...............................................18
Koch Ref. Co. v. Chapa, 11 S.W.3d 153 (Tex. 1999).................... .20, 21, 22, 26, 28
Kolius v. Ctr. Point Energy Houston Elec. LLC, 422 S.W.3d 861 (Tex.App.--Houston [14th Dist.] 2014, no pet.). .......................................... 31, 32
v Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) (per curiam) .........................19 Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778 (Tex. 2001) ............................17
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) .....................................14
MBank El Paso N.A. v. Sanchez, 836 S.W.2d 151 (Tex. 1992) (Hecht, J., dissenting) .....................................................................30 Merriman v. XTO Energy Inc., 407 S.W.3d 244 (Tex. 2013) .......................... 15, 35
Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009)....................17
Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016) ............ 16, 17, 18 Oncor Elec. Deliv. Co., LLC v. Murillo, 449 S.W.3d 583 (Tex. App.--Houston [1st Dist.] 2014, pet. denied) ............................................17
Randall Noe Chrysler Dodge, LLP v. Oakley Tire Co., 308 S.W.3d 542 (Tex.App.--Dallas 2010, pet. denied) .................................................................31
Richards v. Domino’s Pizza, Inc., No. 05-96-0024-CV, 1997 WL 644867 (Tex.App.--Dallas Oct. 21, 1997, pet. denied) (not designated for publication) ..........................................................................31
Scott Fetzer Co. v. Read, 945 S.W.2d 854 (Tex.App.--Austin 1997), aff’d, 990 S.W.2d 732 (Tex. 1998)...........................30
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118 (Tex.App.--Houston [1st Dist.] 2002, pet. denied)..............................................19
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) ..........................................19 Vann Horn v. Chambers, 970 S.W.2d 542 (Tex.1998) ...........................................19
Victoria Elec. Coop., Inc. v. Williams, 100 S.W.3d 323 (Tex. App.--San Antonio 2003, pet. denied). ............................ 21, 22, 26, 27, 28
Weidner v. Sanchez, 14 S.W.3d 353 (Tex. App.--Houston [14th Dist.] 2000, no pet.) .................................................24
vi STATUTES AND RULES TEX. R. APP. P. 39.1. ................................................................................................ ix
TEX. R. CIV. P. 166a(i) .............................................................................................14
vii TO THE HONORABLE FOURTH COURT OF APPEALS:
COMES NOW Appellee AEP Texas Central Company (“AEP”) and files its
Appellee’s Brief. The trial court properly granted traditional and no evidence
motions for summary judgment filed by AEP. The judgment should be affirmed.
STATEMENT OF THE CASE
This is an appeal from an order granting both a traditional and no evidence
summary judgment to AEP. Appellant Marta Arredondo filed suit against AEP and
T&D Solutions on September 15, 2015, in the 79th Judicial District Court, Brooks
County, Texas, Cause No. 15-08-16992-CV, the Hon. Richard Terrell presiding
(C.R. 14, 22).1 She later added TechServ as a defendant (C.R. 22). By her Second
Amended Petition, she alleged negligence, negligence per se and gross negligence
against all defendants, asserting that she fell into a shallow hole on her property
allegedly caused by the removal of a utility “stub” pole2 two weeks prior (C.R. 23-
27).
AEP answered (C.R 20, 204-205) and filed a traditional and no-evidence
motion for summary judgment (C.R. 28-202).
1 Appellant requested a separate record for each Defendant/Appellee. AEP here cites to the record filed in reference to itself. 2 A “stub pole” is generally a utility pole from which the top portion has been cut off after the uppermost (electric) lines have been removed and transferred to a new pole but to which other wires (usually telephone or cable television) remain attached on the lower portion; the stub pole is not removed from the ground until all wires attached to it have been relocated. viii Arredondo filed a Third Amended Petition that changed her allegation
regarding the timing of the removal of the pole, asserting that the acts made the basis
of the suit occurred months prior (C.R. 210-216). She did not revise her causes of
action (id.).
Arredondo filed a response to AEP’s traditional motion for summary
judgment (C.R. 217-337). As to the no-evidence motion, she argued she needed
additional discovery to respond (C.R. 229-230). AEP filed a Reply (Supp. C.R. 10-
20 [filed 11/2/17]).3
The summary judgment was argued in open court (R.R. 2, passim) but because
of discovery disputes between Plaintiff, TechServ and T&D, final submission was
set for a later date (C.R. 451).
Arredondo filed a first supplemental response to AEP’s summary judgment
motion supplementing one argument she had made previously, but did not address
all of the elements challenged by AEP’s no evidence motion (C.R. 452-565). AEP
filed a reply (C.R. 566-572).
The trial court granted AEP’s traditional and no evidence motions (C.R. 573-
74, 578-79). The trial court also granted traditional and no evidence motions for
summary judgment filed by T&D and TechServ.
3 There are two Supplemental Clerk’s Records; the one referred to herein was filed November 21, 2017 at AEP’s request. ix STATEMENT REGARDING ORAL ARGUMENT
AEP believes oral argument is not necessary. TEX. R. APP. P. 39.1. The
dispositive issues have been authoritatively decided and the complete record is
before this Court. The decisional process would not be significantly aided by oral
argument. Id.
ISSUES PRESENTED, RESTATED
1. The trial court properly rendered summary judgment for AEP.
a. AEP owed no duty to the Plaintiff.
1. T&D is an independent contractor and Appellant fails to raise a genuine issue of material fact otherwise. Appellant does not allege AEP exercised actual control, and AEP did not have contractual control.
2. Appellant does not dispute that TechServ, the inspector, is an independent contractor as its contract with AEP specifically states; Appellant does not contend AEP had actual control and does not cite to any contractual provisions to the contrary.
b. Removing a stub pole and filling the hole with dirt is not an inherently dangerous activity.
2. Appellant does not challenge all of the arguments lodged in AEP's No- Evidence Motion for Summary Judgment, granted by the trial court. Specifically, AEP argued there was no evidence of foreseeability or proximate cause.
x STATEMENT OF FACTS
I. Plaintiff’s Allegations By her Third Amended Petition, Arredondo alleges that in July, 2014, she was
mowing her lawn when she stepped backward into a hole “2 ½ to 3 feet deep” which
she contends was “left from the removal of a utility pole that took place previously.”
(C.R. 211) The evidence shows the pole was removed in December 2013 (C.R. 65-
66). In her Brief, Appellant acknowledges T&D marked the work as complete on
December 2, 2013 and that TechServ marked the inspection complete on December
9, 2013 (Ant Br at 10, 11). In her response to T&D’s summary judgment motion,
Arredondo averred: “Initially, Plaintiff believed the hole was created a few weeks
before this incident, however it has been discovered that the hole was likely created
many months before this incident occurred. It is believed that the utility pole was
removed from Plaintiff’s yard a few weeks before this incident. Plaintiff has since
updated her Petition to reflect this newly discovered information.” (T&D C.R. 136)
Appellant alleged in her petition, “Defendants had a utility easement on her
property,” “had sole responsibility for the safe maintenance, inspection and control
for the easement after undertaking removal of the pole and created a defect in the
easement property when they removed the pole and failed to fill the hole or otherwise
warn of its existence.” (C.R. 211)
Arredondo alleged negligence, negligence per se and gross negligence (C.R.
1 212). She asserted as basis for her negligence and negligence per se claims, “A
possessor of land is liable to an injured person if the possessor of land creates a
dangerous condition and then fails to warn of the existence of the condition or
Landlord fails to make all repairs and do whatever is necessary to put and keep the
premises in a safe condition. The Defendants failed to properly inspect, repair, and
maintain the easement after removal of the pole.” (C.R. 212)
II. AEP Files a Traditional and No Evidence Motion for Summary Judgment (C.R. 28-202) In its traditional motion, AEP noted that Arredondo is the owner of the property
in question, and denied having an easement on the property (C.R. 30, n. 1, C.R. 31).
But AEP argued that regardless of either party’s status, T&D Solutions and
TechServ were independent contractors solely responsible for the work performed;
AEP had no control over the means, manner or method of their work (C.R. 29-37).
Because Arredondo’s injury was allegedly the result of the property's condition
rather than an activity, premises liability principles apply. An owner/occupier of land
has no duty with regard to premise defects created by an independent contractor, or
to inspect and warn of alleged dangerous conditions resulting from the independent
contractor's work, absent a right to control the work that created the alleged defect.
AEP, having no such control, neither owed nor breached any duty to Arredondo
(C.R. 30-37).
2 In the no-evidence portion of its motion, AEP asserted Arredondo could adduce
no evidence to support the elements of her claims, that is, no evidence to show:
“1. That AEP had any duty to the Plaintiff because the condition of which she complains was created by an independent contractor and not AEP;
2. That AEP, under the circumstances and facts herein, breached any duty to the Plaintiff because Plaintiff has failed to establish that AEP exercised any control over the independent contractor either contractually or actually;
3. That AEP had any reason to foresee that Plaintiff’s injuries could result from the work of the independent contractor.
Specifically, there has been no evidence to date that has shown that AEP breached any legal duty to the Plaintiff or that any act or omission of AEP proximately caused the Plaintiff’s damages. Thus, Defendant moves for summary judgment because there is no evidence of the above-referenced elements of the Plaintiff’s causes of action.”
(C.R. 29, 37-38) (emphasis added)
A. AEP’s Summary Judgment Evidence
The undisputed evidence shows that AEP contracted with T&D Solutions to
perform the removal of the pole and filling of the hole and with TechServ Consulting
and Training to inspect the work that T&D was hired to perform.
Roel Lopez, an engineering technician with AEP, testified by deposition that
he drew up a work order that included the removal of the pole, referred to as a “stub
pole” (C.R. 42, 46, 47-48, 49). The task entailed pulling the pole out of the ground,
filling the hole with dirt, and returning the pole to the AEP yard (C.R. 48). Lopez
testified he does not, in his work orders, tell the independent contractors how the
3 work is to be done (C.R. 49 “I don’t specify, on any of the projects, what they’re
using.”). The contractor is expected to cover the hole or warn if it has not done so
(C.R. 50).
Lopez testified that TechServ, the independent contractor inspector AEP used
in the area at the time, verified the work in the field and was expected to confirm the
hole was covered or a warning was placed (C.R. 50, 51, 52, 55-56). AEP was not
involved in how or when the inspector did its job (C.R. 51). Lopez testified, “[A]
TechServ contractor [Richard Luna] signed off on the project that they inspected or
looked over the work.” (C.R. 52-54) If a hole was left after a job, it was the
responsibility of the T&D Solutions crew working the job to warn the public (C.R.
50). It was the inspector's duty to point out if a job was not done properly or if a hole
had not been filled (C.R. 55-56).
Robert Ramos, a foreman with T&D Solutions, testified by deposition that he
received the aforementioned work order, and he and his crew performed all of the
tasks contained therein (C.R. 58, 63, 64-65, 69-70). Ramos supervised T&D’s work
that day (C.R. 70). No one from AEP was there (id.). T&D had removed stub poles
before and knew how to do it; no one had to tell them how; only T&D was at the site
(C.R. 70-71). T&D only used T&D equipment and T&D employees to remove the
pole (id.).
Ramos confirmed that Richard Luna was the TechServ inspector (C.R. 67-68).
4 “He was an inspector for, contract inspector for AEP, which he would go and inspect
us and the job, for us to work safe and -- that was his job to check, like, that pole is
removed and everything was done by AEP's specs.” (C.R. 68) “[T]hey do audits and
they go to your job sites.” (id.) Richard Luna was physically at this jobsite (id.).
Danny Garcia, the AEP supervisor in the Falfurrias area at the time, testified
that when AEP hires a professional contractor, it does not tell them how to do their
job (C.R. 194, 198, 199-200, 201). Rather, AEP's third party contractors and
inspectors are professional utility contractors that know how to do their jobs, which
AEP expects them to do (C.R. 201-202). When a stub pole is removed, it is expected
that the hole is filled in to leave it safe and intact (C.R. 202).
Authenticated copies of the contracts in effect on the date the work was
performed are in evidence (C.R. 79; T&D: C.R. 82-137; TechServ: C.R. 139-192).
Under the general terms and conditions for the services to be provided by each of
the contractors, each contractor is expressly designated and defined as an
independent contractor. As to T&D Solutions:
4.0 RELATIONSHIP OF THE PARTIES
4.1 Contractor [T&D] and all of its employees and Subcontractors are, with respect to Owner [AEP], independent contractors. Contractor will be solely responsible for the supervision, direction, and control of its employees and Subcontractors. Contractor is responsible for the payment of all compensation, benefits, and employment taxes with respect to the Contractor's employees.
(C.R. 91). “Contractor hereby agrees to provide all supervision, labor, equipment
5 and specified material necessary to perform … maintenance services….” (C.R. 82,
¶ I.) Work Requests and Authorizations include only a scope of work (C.R. 82-83,
¶¶ II. a, b).
“Contractor shall at its expense provide everything necessary for the
complete, proper and timely execution of the Work….” (C.R. 90, ¶ 2.1) “Work”
“means all of Contractor’s obligations under the Contract.” (C.R. 89, ¶ 1.13)
The contract further requires the independent contractor to be responsible for
all damages to private property occasioned by their work (C.R. 117, ¶ 1.2.3).
AEP’s contract with TechServ states:
1.0 DEFINITIONS 1.1 Contract: "Contract" means the Contract Letter signed by the parties and all documents referenced in the Contract Letter.
1.2 Consultant: "Consultant" means the entity contracting with Owner for the performance of Work. In performing this Contract, Consultant shall be an independent contractor.
(C.R. 148) TechServ is the named “Consultant” in the contract (C.R. 139).
“Consultant agrees to provide all supervision, labor, and specified equipment and
material necessary to perform joint use engineering services….” (C.R. 142)
“Consultant shall at its expense provide everything necessary for the complete,
proper and timely execution of the Work including, but not limited to, home office
support, supervision, labor, tools, transportation, equipment, materials and supplies,
unless explicitly excluded in the Contract.” (C.R. 148, ¶ 2.1) “Work” “means all of
6 Consultant’s obligations under the Contract.” (id. at ¶ 1.5)
III. Plaintiff’s Response
Arredondo lodged three arguments in her Response to AEP’s motion for
summary judgment:
“AEP is the dominant easement holder of the property where this incident occurred and therefore owed a duty to use ordinary care in order to avoid injury to the Plaintiff, the servient easement holder”;
“Defendant AEP had a contractual right to control Defendant T&D, and therefore has a duty to ensure their work was done with ordinary care as to not create a dangerous condition that could harm Plaintiff”; and “Even if Defendant T&D is considered an independent contractor, which Plaintiff denies, the work they performed is considered inherently dangerous, and therefore AEP's duty to make safe is non-delegable.”
(C.R. 217-18)
Arredondo did not contend that AEP had contractual (or any) control over
TechServ, the independent contractor inspector she concedes inspected and
approved T&D Solutions’ work (C.R. 217-230). She also did not respond to AEP’s
no evidence motion. Instead, she alleged that she needed more time for discovery
(C.R. 229-230).
A. Arredondo’s Summary Judgment Evidence Arredondo attached, to her summary judgment response, AEP’s Response to
Interrogatories, which states, “The work in question was performed on the city right-
7 of-way.” (C.R. 235)4 She also attached her deposition, in which she confirmed that
this is her property and there is a city easement or right of way in the area where the
incident occurred (C.R. 244 depo p. 79).
Arredondo’s deposition also states that in July 2014 she was mowing her
grass in an area of her property where a utility pole had previously been removed
(C.R. 240 depo p. 26, 27). She had no actual knowledge when the pole was removed
from the ground and from her property (C.R. 244 depo p. 79-80). The grass was
“tall” (C.R. 240 depo p. 27). She says she backed up while mowing and one of her
feet stepped into what she believes was a 2 ½ foot deep hole (C.R. 241 depo p. 30).
She does not know if a hole was left after the pole was removed; she did not check
to see (C.R. 242 depo p. 42-43). She also did not look at the high grass area before
mowing (id. depo p. 42).
Arredondo also attached excerpts from AEP supervisor Daniel Garcia’s
deposition, which reiterates that AEP hires independent contractors to perform these
tasks, and the third party inspector has to sign off on the job before the contractor is
paid; AEP relies on the contractors and inspectors to do their jobs (C.R. 312-13 [“we
don’t tell them how to do….”]). The inspector ensures the job is complete and calls
4 The interrogatories also reiterate that a contractor removed a stub pole on the premises; that T&D Solutions was performing work as the independent contractor; and that TechServ was hired to inspect the work performed (C.R. 235-36).
8 the contractor back if it is not (id.).
Arredondo attached excerpts from AEP engineering technician Roel Lopez’s
deposition, which show the contract inspector (TechServ) inspects the crew and is
responsible for ensuring the work is done to AEP standards (C.R. 335). The property
has to be put back the way it was (C.R. 335). It is the responsibility of the contractor
– the crew working the job (T&D) -- to cover any hole or warn about it (C.R. 336).
Lopez testified, “The inspector [TechServ] gets involved in that he's checking and
verifying the work out in the field.” (C.R. 336)
Arredondo presented no evidence that a hole was left in the ground after the
stub pole was removed in December 2013. She testified she did not know (C.R. 242
depo p. 42-43). In her Appellant’s Brief in this Court regarding TechServ, she quotes
from the deposition of TechServ’s Richard Luna, who testified expressly that when
he inspected T&D’s work, the hole where the stub pole was located was filled (Tech
Serv Ant Br. at 25: “It was covered when I inspected it.”). She also concedes T&D’s
Robert Ramos testified he filled the hole; the hole was immediately covered with
dirt when the pole was removed (id. at 28-30).
In her Brief regarding AEP, Appellant states:
T&D [sic] had an independent contract with Techserv wherein Techserv would inspect work performed by T&D. (2RR9). Techserv employee, Richard Luna, inspected Appellant’s property. (Techserv1CR438). Techserv inspected the work completed by T&D on Appellant’s property and marked the inspection complete on December 9, 2013. (2RR9).
9 (Ant Br. at 11).5
IV. AEP’s Reply in Support of its Summary Judgment Motions
In its Reply in support of its summary judgment motions, AEP countered all
of Arredondo’s arguments with substantial case law (11/21/17 Supp C.R. 10-20) and
argued (1) there is no evidence of an easement; (2) AEP has no contractual control
over T&D; and (3) the removal of a stub pole is not an inherently dangerous activity.
AEP reiterated its no evidence arguments (id. at 18).
V. Appellant’s First Supplemental Response
The trial court granted extensions of time and a continuance and did not submit
the motions for summary judgment for decision until August 16, 2017 (C.R. 424,
445, 449, 451). Arredondo filed a Supplemental Response on August 9, 2017 (C.R.
452-455). She argued only that this case involved an inherently dangerous activity,
categorizing this as “electrical work” and also arguing utility poles are heavy and
can cause injury if they fall on a person (C.R. 452-56). Arredondo quotes from
depositions and attaches (but never addresses, references or cites, as the rules
require) an unauthenticated “news release” and a “magazine article” to support her
position that utility work is inherently dangerous.
Arredondo did not respond to AEP’s no evidence motion for summary
5 There is no evidence T&D had a contract with TechServ. AEP had the contracts with T&D and TechServ. 10 judgment, in particular AEP’s arguments that there was no evidence of foreseeability
or that any act or omission of AEP proximately caused Arredondo’s damages.
VI. AEP’s Sur-Reply
In its Sur-Reply, AEP reiterated authority from the Texas Supreme Court and
this Court that shows the removal of a stub pole is not inherently dangerous, and
reiterated all of its no evidence grounds (C.R. 566-571).
VII. T&D and TechServ’s Summary Judgment Motions
Both T&D and TechServ filed traditional and no evidence motions for summary
judgment as well (T&D C.R. 31-127; TechServ C.R. 29-168). Both argued
principally that there was no evidence of causation; the evidence shows the hole in
question was filled in December 2013 and the plaintiff has no controverting evidence
(see, C.R. 242 depo p. 42-43).
The trial court granted all the Defendants’ traditional and no evidence motions
for summary judgment (AEP C.R. 578; T&D C.R. 423; TechServ C.R. 498).
11 SUMMARY OF THE ARGUMENT
AEP owed no duty to Appellant. It is undisputed the work here was performed
by T&D and TechServ, both of which were independent contractors. Arredondo
contends a stub pole was removed from the ground on her property in December
2013, and the hole was not filled in at that time. T&D was under contract, as an
independent contractor, with AEP to remove the pole and fill the hole. TechServ
served as a contract inspector of T&D’s work. AEP was not at the site, did not
perform the work, and had no control over the work of either company.
To prove liability on the part of AEP, Arredondo has to show that AEP had
the requisite amount of control over these independent contractors, either by the
actual exercise of control or by the terms of the contracts between the parties.
Arredondo does not contend that AEP exercised actual control over either contractor.
Thus, she has to prove AEP had contractual control.
Arredondo alleges AEP contractually controlled T&D, the party tasked with
removing the pole and filling the hole. But the evidence does not support her
contention. The contract expressly states T&D is an independent contractor. No
contract provision highlighted by Appellant shows that AEP had sufficient control
over T&D to erase the independent contractor relationship. AEP did not have control
over the operative details of T&D’s work, and did not control any activity that
allegedly caused Appellant’s injury. AEP did not have such control over T&D that
12 it was not free to do the work in its own way.
Appellant has never alleged that AEP actually or contractually controlled
TechServ. The TechServ contract specifically states that TechServ is an independent
contractor, with corresponding additional provisions making TechServ solely
responsible for, and in control of, its work. It is undisputed TechServ signed off on
the job as complete on December 9, 2013. TechServ found the job to have been
performed properly.
Appellant cannot show a non-delegable duty on the part of AEP. Removal of
a stub pole is not an inherently dangerous activity that would preclude AEP from its
independent contractor defense. Arredondo’s deposition excerpts and arguments are
focused on live electricity and the weight of the pole, neither of which is at issue in
this case (she was injured by neither). In addition, the Supreme Court has specifically
held that working with electricity is not inherently dangerous (if it were in issue).
Indeed, the Supreme Court has rarely found an activity inherently dangerous.
Arredondo failed to meet her burden of proof here.
Further, Appellant has not challenged AEP’s no-evidence motion on the
issues of foreseeability or causation. These are fundamental elements of her claim,
contested by AEP. As both are possible bases for the trial court’s granting of
summary judgment, Appellant has waived her challenge to the trial court’s order.
Finally, the trial court granted summary judgment to T&D and to TechServ.
13 Plaintiff’s claims against AEP are based upon alleged acts or omissions by T&D and
TechServ. If those summary judgments are upheld, so too should summary judgment
be affirmed to AEP.
ARGUMENT
I. Standard of Review Appellant addresses only the standard of review on appeal from the granting of
a traditional motion for summary judgment. But, the trial court also expressly
granted AEP’s no evidence motion. A no-evidence summary judgment movant must
assert that "no evidence supports one or more essential elements of a claim for which
the non-movant would bear the burden of proof at trial." KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015) (citing TEX. R. CIV. P. 166a(i)). "The trial
court must grant the motion unless the non-movant raises a genuine issue of material
fact on each challenged element." Id. On appeal, this Court reviews the evidence
presented by the non-movant in the light most favorable to her, "crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
582 (Tex. 2006).
This Court reviews a trial court's traditional summary judgment de novo. City
of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597, 600
(Tex.App.—San Antonio 2013, pet. denied). The Court takes as true all evidence
14 favorable to the non-movant, and indulges every reasonable inference and resolves
any doubts in the non-movant's favor. Id. The traditional summary judgment movant
bears the burden to show that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. Id.
The trial court did not state the issues on which it granted AEP’s traditional
and no evidence motions; therefore, any ground asserted will support the judgment,
and all grounds must be challenged on appeal or they are waived. Cincinnati Life
Ins. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); Merriman v. XTO Energy Inc., 407
S.W.3d 244, 248 (Tex. 2013); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001). Summary judgment may be affirmed on any meritorious ground alleged.
Merriman, 407 S.W.3d at 248.
When parties file both traditional and no evidence motions, this Court reviews
the no evidence motion first. Gillespie v. Hernden, 516 S.W.3d 541, 553
(Tex.App.—San Antonio 2016, pet. denied) (citing Ford Motor Co. v. Ridgeway,
135 S.W.3d 598, 600 (Tex. 2004) (“recognizing that a no-evidence review should
be conducted first”); BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 509 (Tex.
App.—San Antonio 2013, pet. denied) (“same”)).
15 II. Summary Judgment was Properly Granted to AEP
A. AEP Owed No Duty to the Appellant: This Work was Performed by Independent Contractors6
1. Premises Liability
Appellant brought a premises liability claim against the Defendants, asserting
a premise defect. AEP focused its arguments in the trial court on its independent
contractor defense. AEP would note preliminary that the status of the Appellant is
unclear since she owned the property in question. In addition, Appellant has never
produced any evidence of an easement on the property. Regardless of the status of
the parties, AEP owed Appellant no duty here.
Premises liability is founded on the theory that a property owner generally
owes those invited onto the property a duty to make the premises safe or to warn of
dangerous conditions, as reasonably prudent under the circumstances. Occidental
Chem. Corp. v. Jenkins, 478 S.W.3d 640, 648 (Tex. 2016); Corbin v. Safeway Stores,
Inc., 648 S.W.2d 292, 295 (Tex. 1983).
Assuming for the sake of argument AEP was in control of the premises, “A
general contractor in control of the premises is charged with the same duty as an
owner or occupier.” Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527
6 While recognizing that the no evidence motion should be reviewed first, because the arguments presented in the traditional motion establish all of the legal principles, AEP sets forth its traditional arguments first. This also tracks Appellant’s briefing. 16 (Tex. 1997). Assuming similarly that an easement existed, “As an easement holder,
a party qualifies as an occupier of the premises for the purposes of creating a duty in
tort.” Oncor Elec. Deliv. Co., LLC v. Murillo, 449 S.W.3d 583, 590 (Tex. App.--
Houston [1st Dist.] 2014, pet. denied).
“Like any other negligence action, a defendant in a premises case is liable
only to the extent it owes the plaintiff a legal duty. Whether such a duty exists is a
question of law for the court.” General Elec. Co. v. Moritz, 257 S.W.3d 211, 217
(Tex. 2008) (citing Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 782 (Tex.
2001); Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627, 631 (Tex. 1976)). Appellate
courts review de novo a determination regarding whether a legal duty is owed.
Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009).
Premises liability is a branch of negligence law, a "special form" that
applies to a property owner/occupier who allegedly creates a dangerous condition
on its property. Jenkins, 478 S.W.3d at 648. The claim of a person injured by the
condition is one sounding in premises liability regardless of how she chooses to
plead it. see, e.g. E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57 (Tex.
App.--Houston [14th Dist.] 2014, pet. dism'd) ("Artful phrasing of the pleadings
to encompass … any other theory of negligence does not affect the application
of premises liability law.").
A person injured on property occupied by another may have either a
17 negligence claim or a premises liability claim against the occupier. Jenkins, 478
S.W.3d at 644; Olivo, 952 S.W.2d at 527; Roye, 447 S.W.3d at 56. When the injury
is the result of a contemporaneous, negligent activity on the property, ordinary
negligence principles apply and the plaintiff must have been injured by the activity
itself. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). That is not
Arredondo’s allegation.
When the injury is allegedly the result of the property's condition, as alleged
here, premises liability principles apply. Jenkins, 478 S.W.3d at 644; Roye, 447
S.W.3d at 56-57 (holding plaintiff was limited to a premises liability claim for the
allegation that he was injured by a condition of the property). In that event “the
injured party is limited to a premises liability theory and must prove his status to
establish the type of duty owed by the premises owner.” Roye, 447 S.W.3d at 57.
2. Negligence and Gross Negligence
"Negligence arises when an actor breaches a legal duty in tort, and the breach
proximately causes damages." Columbia Med. Ctr. of Los Colinas, Inc. v. Hogue,
271 S.W.3d 238, 246 (Tex. 2008). The threshold inquiry in a negligence case is
whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The existence of a duty is a question of
law for the court to decide from the facts surrounding the occurrence in question. Id.
18 The duty may be imposed by contract or law. City of Alton v. Sharyland Water
Supply Corp., 402 S.W.3d 867, 874 (Tex.App.--Corpus Christi 2013, pet. denied).
Without a duty, AEP cannot be held liable to the Appellant for negligence. Id.
at 875; see Kroger Co. v. Elwood, 197 S.W.3d 793,794 (Tex. 2006) (per curiam).
"The non-existence of a duty ends the inquiry into whether negligence liability may
be imposed." Vann Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).
The plaintiff must establish both the existence and violation of a duty owed to
her by the defendant in order to establish liability in tort. Centeq Realty, 899 S.W.2d
at 197. Arredondo was therefore required to present evidence raising a genuine issue
of material fact that AEP breached a duty to her and that its breach, if any,
proximately caused her damages. City of Alton, 402 S.W.3d at 875.
Claims for negligence and gross negligence are inextricably intertwined.
Bastida v. Aznaran, 444 S.W.3d 98, 109 (Tex.App.—Dallas 2014, no pet.) (citing
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 126
(Tex.App.--Houston [1st Dist.] 2002, pet. denied)). Gross negligence presumes a
negligent act or omission. Id. (citing Ford Motor Co. v. Miles, 967 S.W.2d 377, 390
(Tex. 1998) (Gonzalez, J., concurring) (itself citing Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 23 (Tex. 1994)).
If there is no negligence liability, there can be no liability for gross negligence.
City of Waco v. Kirwan, 298 S.W.3d 618, 623 (Tex. 2009) (“As with negligence
19 actions. . . a defendant may be liable for gross negligence only to the extent that it
owed the plaintiff a legal duty.”); West v. SMG, 318 S.W.3d 430, 442-43 (Tex. App.-
Houston [1st Dist.] 2010, no pet.) (summary judgment properly granted because
plaintiff failed to present evidence of duty, a necessary element of her negligence
and gross negligence claims); R T Realty, LP v. Texas Utils. Elec. Co., 181 S.W.3d
905, 914 (Tex. App.--Dallas 2006, no pet.) (“The threshold inquiry regarding a gross
negligence claim is whether a legal duty existed.”).
3. No Liability for the Work of Independent Contractors
“Generally, an owner of land does not owe any duty to ensure independent
contractors perform their work in a safe manner.” Shell Oil Co. v. Kahn, 138 S.W.3d
288, 295 (Tex. 2004); Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999).
Premises defects arising on property where an independent contractor is working are
divided into two categories: (1) defects existing when the independent contractor
enters and (2) defects created by his work. Kahn, 138 S.W.3d at 295; Jacobs v. Huser
Constr., Inc., 429 S.W.3d 700, 703 (Tex.App.--San Antonio 2014, no pet.);
Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 476-77 (Tex.App.--El Paso
2008, no pet.). “[A]n owner or occupier has no duty with regard to defects created
by an independent contractor, unless he retains a right to control the work that
created the defect.” Braudrick, 250 S.W.3d at 476-77. Absent "a relationship
between the parties giving rise to the right of control, one person is under no legal
20 duty to control the conduct of another, even if there exists the practical ability to do
so." Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993).
For a duty to attach, the owner or occupier’s role “must be more than a general
right to order the work to start or stop, to inspect progress or receive reports, to make
suggestions or recommendations which need not necessarily be followed, or to
prescribe alterations and deviations.” Koch Ref. Co., 11 S.W.3d at 155; accord,
Braudrick, 250 S.W.3d at 476-77. As the Supreme Court continued in Koch, “Such
a general right is usually reserved to employers, but it does not mean that the
contractor is controlled as to his methods of work, or as to operative detail. There
must be such a retention of a right of supervision that the contractor is not entirely
free to do the work in his own way.” Id., 11 S.W.3d at 155; accord, Victoria Elec.
Coop., Inc. v. Williams, 100 S.W.3d 323, 326 (Tex. App.--San Antonio 2003, pet.
denied).
Employers can direct when and where an independent contractor does the work and can request information and reports about the work, but an employer may become liable for the independent contractor's tortious acts only if the employer controls the details or methods of the independent contractor's work to such an extent that the contractor cannot perform the work as it chooses.
Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 792 (Tex. 2006) (emphasis added).
In Braudrick, the plaintiffs tripped over a speed bump in a Wal-Mart/Sam’s
Club parking lot at night, in an area under construction, and sued the Wal-Mart
entities and the independent contractor Emerson alleging premises liability: an
21 unpainted speed hump and poor lighting. Id., 250 S.W.3d at 474-75. Wal-Mart
established that the construction and lighting were solely under the control of
Emerson, the independent contractor, pursuant to the contract between the parties.
Id. at 477-78, 480. The take-nothing judgment in favor of Wal-Mart was affirmed.
Id. at 481.
In Victoria Elec. Coop., Victoria Electric contracted with Urban Electrical
Services to construct and maintain electrical distribution lines in its franchise area;
Urban loaded six utility poles onto a truck to transport them to the installation area.
Id., 100 S.W.3d at 325. The poles extended beyond the end of the trailer and
necessary warnings were not attached. Id. As the truck and trailer crossed an
intersection, the decedent ran into the extended poles and sustained fatal injuries. Id.
Plaintiffs sued Victoria Electric, Urban, and the truck driver. This Court noted, “The
employer must have some latitude to tell its independent contractors what to do, in
general terms, and may do so without becoming subject to liability.” Id. at 326 (citing
Koch Ref. Co., 11 S.W.3d at 156). “Further, we must remember that liability results
only when the right of control relates to the injury-producing activity itself.” Id.
(citing Olivo, 952 S.W.2d at 528).
Here, there is no dispute that AEP hired independent contractors – T&D to
remove this stub pole and fill the hole on Appellant’s property, and TechServ to
inspect the work. Therefore, unless Appellant can prove AEP had control over these
22 independent contractors, AEP owed no duty to Appellant related to the work
performed by them.
B. Control Must be Actual or Contractual
A party can prove right to control either with evidence of a contractual
agreement that explicitly assigns a right to control, or with evidence of actual control
over the manner in which the work was performed. Fagerberg v. Steve Madden, Ltd.,
No. 03-13-00286-CV, 2015 WL 4076978, *1 (Tex.App.--Austin July 3, 2015, no
pet.) (mem. op.) (citing Fifth Club, 196 S.W.3d at 791-92; Baptist Mem. Hosp. Sys.
v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (which holds, “Because an
independent contractor has sole control over the means and methods of the work to
be accomplished, however, the individual or entity that hires the independent
contractor is generally not vicariously liable for the tort or negligence of that
person.”)). “An entity is not liable for an independent contractor's acts unless it had
some right to control the contractor's work.” Id. (citing Fifth Club, 196 S.W.3d at
791-92).
Appellant does not allege that AEP exercised actual control over either T&D
or TechServ. Thus, Appellant has to show AEP had a contractual right to control
these independent contractors before liability against AEP can attach.
23 C. AEP Did Not Have Contractual Control Over T&D
Appellant alleges AEP had contractual control over T&D. But the evidence
does not support her contention. T&D was expressly defined as an independent
contractor, with commensurate independent duties accordingly, in the contract.
“A contract expressly providing that a person is an independent contractor is
determinative of the relationship absent evidence that the contract is a mere sham or
subterfuge designed to conceal the true legal status of the parties or that the contract
has been modified by a subsequent agreement between the parties.” Farlow v. Harris
Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex.App.--Fort Worth 2009,
pet. denied); Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex. App.--Houston [14th
Dist.] 2000, no pet.). There is no evidence of either here.
In Jacobs, this Court examined a contract to determine whether the defendant
retained a contractual right to control the means, methods, or details of the plaintiff’s
employer’s work. After examining several contract provisions, which gave the
general contractor the right to ensure that the subcontractor’s work met the general
contract and subcontract’s specifications and schedules, the Court focused on the
section entitled: “22. Independent Contractor,” which stated, “[S]ubcontractor shall
be an independent contractor and shall assume all of the rights, obligations, and
liability applications [sic] to it as such independent contractor.” Id., 429 S.W.3d at
704. This Court held that the plain language of the subcontract established the
24 general contractor had no control over the details of the subcontractor’s work. Id.
Applied to this case, Section 4 of the contract between AEP and T&D makes
clear that T&D is an independent contractor and is solely responsible for the
supervision, direction, and control of its employees and subcontractors.
4.0 RELATIONSHIP OF THE PARTIES 4.1 Contractor [T&D] and all of its employees and Subcontractors are, with respect to Owner [AEP], independent contractors. Contractor will be solely responsible for the supervision, direction, and control of its employees and Subcontractors. Contractor is responsible for the payment of all compensation, benefits, and employment taxes with respect to the Contractor's employees.
(C.R. 91). As shown in the Statement of Facts, other contractual provisions likewise
evidence the independent contractor status of T&D (C.R. 82, ¶ I.; C.R. 82-83, ¶¶ II.
a, b; C.R. 90, ¶ 2.1; C.R. 89, ¶ 1.13; C.R. 117, ¶ 1.2.3).
There is no specific contractual language implicating a right to control the
operative details of how T&D worked, or denying T&D the ability to do its work in
its own way, to trigger liability. Id., 429 S.W.3d at 704. The provisions of the
contract establish AEP had no right to control the means, methods, or details of
independent contractor T&D’s work.
In support of her argument, Appellant first contends that AEP had the right to
give instructions, but concedes the provision she highlights does not say that AEP
can instruct as to the “means, methods and details of T&D’s work.” (Ant Br. at 19)
To the contrary the contract states, “Contractor will be solely responsible for the
25 supervision, direction, and control of its employees and Subcontractors.” (¶ 4) The
contract also states AEP will give only a scope of work, without detail (¶¶ II. a, b).
Even if the provision Appellant highlights is interpreted to mean that AEP had
a general right to order the work to start or stop, to inspect progress or receive
reports, to make suggestions or recommendations which need not necessarily be
followed, or to prescribe alterations and deviations (which it does not), this “does
not mean that the contractor is controlled as to his methods of work, or as to operative
detail.” Koch Ref. Co., 11 S.W.3d at 155. There is no retention of a right of
supervision such that T&D “is not entirely free to do the work in its own way.” Id.
Appellant next cites to a tool provision in the contract (Ant Br. at 19). There
is no evidence that specialty tools were needed to fill the hole with dirt, or that
ordinary tools had to be used in an unusual way. And asking T&D to provide a list
of tools, procedures and practices (id.) is no more indicative of control than
requesting information and reports about the work, which does not subject the owner
to liability. Fifth Club, 196 S.W.3d at 792.
This Court held in Victoria Elec. Coop. that similar provisions as those above
were not sufficient to find more than supervisory control and thus did not trigger
liability. Id., 100 S.W.3d at 327-28. “Although Victoria Electric did reserve the right
to order corrections if the work was not being done safely, Victoria Electric's right
to require Urban to operate safely is not evidence of control over the ‘details of what
26 was being done’ so as to impose liability.” Id. at 328.
Appellant next concedes that for liability to attach, there must exist a right of
control over the injury-causing activity itself (Ant Br. at 20) (citing Victoria Elec.
Coop., 100 S.W.3d at 327). Requiring that the work be done as expeditiously as
possible with the least inconvenience to the private property owner (Ant Br. at 20-
21) does not amount to control of the details or methods of the independent
contractor's work to such an extent that the contractor cannot perform the work as it
chooses. Fifth Club, 196 S.W.3d at 792. Nor does it show that AEP had any control
over the (alleged) injury-causing activity itself. There was also no need for an
excavation here (Ant Br. at 20).
The remaining list of items highlighted by Appellant (Ant Br. at 21-22) do not
evidence a right of control over the alleged injury-causing activity itself: removing
the pole and filling the hole with dirt. Language spoken and uniforms worn have no
relation to the allegations in this case, nor are there allegations of negligent hiring or
training. In addition, as this Court noted in Victoria Elec. Coop., an employer who
required the independent contractor to train its employees in safety measures was
not liable to an employee who was injured because of a violation of those safety
measures. Id., 100 S.W.3d at 328 (citing Hoechst-Celanese Corp. v. Mendez, 967
S.W.2d 354, 356 (Tex. 1998) (per curiam)).
In sum, AEP did not have the right to control the details or methods of T&D’s
27 work to such an extent that T&D could not perform the removal of this stub pole and
filling of the hole as it chose. None of the provisions cited by Appellant establish
that AEP had the right to control the “operative detail” of T&D’s work. Koch Ref.
Co., 11 S.W.3d at 155; Victoria Elec. Coop., 100 S.W.3d at 328-29, 330. “The scope
of [AEP’s] duty did not extend to control over the details of how” stub poles are
removed and holes are filled. Victoria Elec. Coop., 100 S.W.3d at 329. Absent such
specific right of control, the contract does not create in AEP any duty of care to
Appellant. Jacobs, 429 S.W.3d at 705; Victoria Elec. Coop., 100 S.W.3d at 328-29,
330. Moreover, there is no nexus between the specific provisions of the contract
quoted by Appellant and the condition or activity that allegedly caused her injury.
Victoria Elec. Coop., 100 S.W.3d at 327.
Finally, as shown in the Statement of Facts, the summary judgment evidence
makes clear that no one from AEP told the T&D employees how to perform their
job. Testimony establishes that Robert Ramos, the T&D foreman, was supervising
the work and no one from AEP was at the work site when it was accomplished.
Appellant tendered no evidence to refute this testimony. AEP did not retain or
exercise control over T&D’s methods or the operative details of the work,
specifically the removal of the pole and the filling of the resulting hole. There is no
genuine issue of material fact; AEP owed no duty to Appellant. Summary judgment
was properly granted.
28 D. Appellant Does Not Allege AEP Had Actual or Contractual Control Over TechServ; TechServ’s Status as an Independent Contractor is Unrebutted
Appellant has never alleged that AEP had actual or contractual control over
TechServ, which was hired to inspect T&D’s work and approve the final product.
The TechServ contract specifically states that TechServ is an independent
contractor, with corresponding additional provisions making TechServ solely
responsible for, and in control of, its work (C.R. 148, accord 139, 142, 148 ¶¶ 1.5,
2.1). Appellant cites no provisions to the contrary.
TechServ was the last entity on the property in the performance of the work
that is the basis of Appellant’s lawsuit. Appellant concedes T&D completed its work
on December 2 and TechServ signed off on the work as completed on December 9,
2013. AEP’s summary judgment argument, supported by evidence, that TechServ
is an independent contractor has gone unchallenged by Appellant. AEP cannot be
held liable for any alleged act or omission on the part of TechServ. Summary
judgment in favor of AEP on Appellant’s allegations of wrongdoing on the part of
TechServ must be affirmed.
III. The Removal of a Stub Pole is Not an Inherently Dangerous Activity
Appellant alleges AEP owes a non-delegable duty to her because the work
performed was inherently dangerous, and thus notwithstanding T&D and
TechServ’s status as independent contractors, AEP is still liable (Ant Br. at 23).
29 “Texas courts have found very few activities so inherently dangerous as to
impose a nondelegable duty.” Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d
649, 652, n. 12 (Tex. 2007) (citing, e.g., MBank El Paso N.A. v. Sanchez, 836 S.W.2d
151, 159 (Tex. 1992) (Hecht, J., dissenting)). MBank cited multiple cases in which
“Texas courts [] have refused to characterize use of heavy equipment, inflammable
materials, electrical work, blasting, and refinery operations as ‘inherently dangerous’
activities.” Id., 836 S.W.2d at 159 (emphasis added). “Inherently dangerous
activities are generally those that are dangerous in their normal, non-defective state.”
Cent. Ready Mix, 228 S.W.3d at 653 (as Appellant concedes, Ant Br. at 23).
“Work is inherently dangerous if it must result in probable injury to a third
person or the public.” Scott Fetzer Co. v. Read, 945 S.W.2d 854, 861-62 (Tex.App.-
-Austin 1997), aff’d, 990 S.W.2d 732 (Tex. 1998) (Appellant concedes this as well,
Ant Br. at 23) (emphasis added). “Inherently dangerous work has been described as
that which is dangerous no matter how skillfully done.” Id. (citing Agric. Warehouse,
Inc. v. Uvalle, 759 S.W.2d 691, 695 (Tex.App.--Dallas 1988, writ denied)). The
following, in addition to those tasks listed above and below, are not inherently
dangerous:
handling of commercial livestock. Bontke v. Cargill Meat Logistics Solution, Inc., No. 07-12-00328-CV, 2014 WL 1493369 *4, 2014 Tex.App. LEXIS 4048 (Tex.App.--Amarillo April 14, 2014, no pet.) (mem. op) (summary judgment affirmed);
30 using a spray apparatus to apply paint. Randall Noe Chrysler Dodge, LLP v. Oakley Tire Co., 308 S.W.3d 542, 547 (Tex.App.--Dallas 2010, pet. denied) (affirming summary judgment);
delivery of groceries to a refrigerated box at a shore base. Hanna v. Vastar Res., Inc., 84 S.W.3d 372, 377-78 (Tex.App.--Beaumont 2002, no pet.) (affirming summary judgment);
pizza delivery. Richards v. Domino’s Pizza, Inc., No. 05-96-0024-CV, 1997 WL 644867 *3 (Tex.App.--Dallas Oct. 21, 1997, pet. denied) (not designated for publication) (affirming summary judgment).
In Richards the court noted prior precedent that armed security service,
construction work, protection of property, and use of a plumber’s torch were also
not inherently dangerous activities. Id. at *3.
As the Bontke court observed:
There are inherent risks in most any activity; yet, the presence of those risks does not ipso facto mean injury or harm will or probably will result due to the conduct of that activity. For instance, electric shock is an inherent risk faced by an electrician; yet, performing electrical work is not an inherently dangerous activity. The same is true of handling explosives; one need not think hard to see what inherent risks may exist there. Yet, it is not an inherently dangerous activity. Id., 2014 WL 1493369 at *5 (citing Cent. Ready Mix, 228 S.W.3d at 652, n. 12).
“So, it is not enough to simply say that the chance of injury renders the action
inherently dangerous.” Id.
The plaintiff bears the burden to point out summary judgment evidence raising
a genuine issue of material fact that the contractor’s work was inherently dangerous.
Kolius v. Ctr. Point Energy Houston Elec. LLC, 422 S.W.3d 861, 868 (Tex.App.--
31 Houston [14th Dist.] 2014, no pet.). Appellant cites deposition excerpts for the
proposition that electric utility work is inherently dangerous. But nowhere is utility
work defined. And at no point is there any testimony concerning the very activity at
issue and being performed by T&D in this case: removal of a stub pole and filling
the resulting hole with dirt.
Appellant focuses on the work of linemen and electricians, that is, work with
electricity and electrical circuits, falling energized lines, and electrocution (Ant Br.
at 24-28). She also attempts to draw a distinction between electricians and linemen,
without explanation (Ant Br. at 29-33). Her injury does not arise from work with
electricity, or the unidentified dangers experienced by linemen. And a pole did not
fall on her (Ant Br. at 31). Rather, Appellant alleges she stepped into a hole. She
fails to show how any activity on the part of any T&D or TechServ employee in this
case was inherently dangerous, causing her injury as a result. No witness testified
that removing a stub pole and filling the hole with dirt is inherently dangerous.
In Kolius, 422 S.W.3d 861, the plaintiff alleged a fire was caused by the
allegedly wrongful act of restoring electric current after a hurricane. The plaintiff
then argued that working with toppled power lines in a disaster zone that was
recently under water, and working on electrical power lines, are inherently
dangerous activities. As here, the plaintiff’s argument focused on the dangers of
electrical power lines and electrocution, but the plaintiff’s allegation was of
32 something else entirely. The Fourteenth Court was not cited to, and did not find, any
Texas case holding that any of the actions made the basis of either plaintiff’s
arguments or his actual allegations were inherently dangerous. Id. at 867-868. So
too here: Appellant cites no case for the proposition that removal of a stub pole and
filling the hole with dirt is an inherently dangerous activity, and the Texas Supreme
Court has specifically refused to characterize electrical work as inherently
dangerous. Cent. Ready Mix, 228 S.W.3d at 652 n.12.
Appellant cites a 1903 case involving a property owner’s hiring of an
independent contractor to dig a hole in a Fort Worth city street that was
approximately 34 feet long, 28 feet wide, and 12-14 feet deep. Cameron Mill &
Elevator Co. v. Anderson, 34 Tex. Civ. App. 105, 106, 78 S.W. 8, 9 (1903), aff'd, 98
Tex. 156, 81 S.W. 282 (1904). The purpose of the excavation was to install
underground storage tanks for fuel oil. Id. The appellee, a 13-year-old boy, was
riding his bike and fell into the pit at 9 o’clock at night in the dark. There were no
lights, signals or barriers around the pit. Id. “[E]xcavation in a street is a nuisance,
because it renders public travel dangerous.” Id. at 107. All of the cases cited in
Cameron Mill involve excavations on public streets of various cities.
The facts of Cameron Mill are not “very similar to the facts at issue in this case”
as Appellant contends (Ant Br. at 24). A 34 x 28 x 12-14 foot excavation in a public
street is wholly and substantially different from a small hole on a grassy area on
33 private property. In addition, since 1903, Texas law regarding inherently dangerous
activities has evolved significantly as set forth above.
In addition, the Cameron Mills court held, “In those cases where the defect,
obstruction or fault is purely collateral to the work contracted to be done, and is the
result entirely of the wrongful act of the independent contractor or his workmen, the
employer should not be held liable, because such act is not to be anticipated by him.”
Id., 34 Tex.Civ.App. at 108. As set forth herein, any alleged hole remaining on
Arredondo’s property (which all defendants deny) was purely collateral to the work
contracted to be done and occurred because of the act of an independent contractor.
AEP should not be held liable, because such act was not anticipated by AEP.
In sum, there is nothing inherently dangerous in the removal of a utility pole
and filling a hole with dirt. No probable injury to the public will arise from this
activity. Nor is this a case in which a pit was excavated in the middle of a city street.
This was a city right of way at the edge of Appellant’s property; it is alleged (but not
proved) that a small hole was created there when a stub pole was removed.
Appellant has tendered no case, and no evidence, to show that removal of a stub
pole and filling of the hole with dirt is an inherently dangerous activity. Summary
judgment was properly granted to AEP.
34 IV. Appellant Has Not Addressed AEP’s No Evidence Motion Regarding Foreseeability or Proximate Cause AEP moved for no evidence summary judgment on the ground that there was
no evidence of foreseeability or proximate cause (C.R. 29, 37-38). Arredondo has
not responded to those bases for summary judgment in the trial court or on appeal.
Indeed, in her briefing with respect to the other defendants in the case, she concedes
that employees from both T&D and TechServ testified the hole was filled and the
job was completed in December 2013. Appellant testified she did not know
otherwise.
As shown in the Statement of Facts, in the trial court, in response to AEP’s no
evidence motion, Arredondo asked for more time for discovery. The trial court
granted that request. After discovery was completed, Arredondo filed a supplemental
response to AEP’s motion, but only addressed her previous assertion that the work
was inherently dangerous. Arredondo did not address AEP’s no evidence motion.
To the extent the trial court granted AEP’s no evidence motion because it
found no evidence of foreseeability and/or proximate cause, such ruling has gone
unchallenged and the summary judgment should be affirmed. Cates, 927 S.W.2d at
625; Merriman, 407 S.W.3d at 248.
35 CONCLUSION AEP asserted, in its traditional motion for summary judgment, that the acts or
omissions made the basis of this case were solely controlled by independent
contractors. Appellant has not contested TechServ, the inspector’s, status as an
independent contractor. Nor has she asserted that AEP had actual control over T&D.
She alleges only that AEP had contractual control over T&D, but she has failed to
raise a genuine issue of material fact in this regard. T&D was expressly identified as
an independent contractor and no provision in the contract absolved T&D of its
ability and right to do its work in its own way. AEP did not retain control over the
operative details of T&D’s work.
Removing a stub pole and filling a hole with dirt is not an inherently
dangerous activity. AEP owed no non-delegable duty here.
Appellant did not respond to AEP’s no evidence arguments on the elements
of foreseeability and causation. The trial court granted AEP’s no evidence motion
without stating the basis. Foreseeability and causation have gone unchallenged. The
trial court’s no evidence summary judgment should be affirmed.
PRAYER
WHEREFORE, Appellee AEP Texas Central Company prays the Court to
affirm the trial court’s judgment, and for all other relief to which it is entitled.
36 Respectfully submitted, /s/ Audrey Mullert Vicknair Audrey Mullert Vicknair State Bar No. 14650500 LAW OFFICE OF AUDREY MULLERT VICKNAIR 802 N. Carancahua, Ste. 2100 Corpus Christi, Texas 78401-0038 (361) 884-5400; (361) 884-5401 fax avicknair@vicknairlaw.com
/s/ G. Don Schauer G. Don Schauer State Bar No. 17733298 SCHAUER & SIMANK, P.C. 615 N. Upper Broadway, Ste. 700 Corpus Christi, Texas 78401-0781 (361) 884-2800; (361) 884-2822 fax dschauer@cctxlaw.com
37 CERTIFICATE OF COMPLIANCE The undersigned certifies, pursuant to TEX. R. APP. P. 9.4(i)(2)(B), that this computer-generated brief is 8,784 words long according to the word count of the computer program used to prepare this document (Microsoft Office Word 2010), from the Statement of Facts through the end of the Prayer. Typeface font is 14-point in the body and 13-point in the footnotes.
/s/ Audrey Mullert Vicknair Audrey Mullert Vicknair
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served in accordance with the Texas Rules of Appellate, on counsel named below, on this the 22nd day of January, 2018, using the Tex.gov electronic e-filing system.
Craig Farrish THOMAS J. HENRY INJURY ATTORNEYS 521 Starr Street Corpus Christi, Texas 78401 Counsel for Appellant Kelsi Wade James M. Tompkins Branch Masterson Sheppard GALLOWAY JOHNSON TOMPKINS BURR & SMITH 1301 McKinney Street, Suite 1400 Houston, Texas 77010 Counsel for T&D Solutions, LLC Jose Trevino, Jr. Joseph Cuellar Nicholas Smith VALDEZ TREVINO, P.C. Plaza Las Campanas 1826 N. Loop 1604 West, Suite 275 San Antonio, Texas 78248 Counsel for TechServ Consulting and Training, Ltd.
/s/ Audrey Mullert Vicknair_ Audrey Mullert Vicknair 38
Related
Cite This Page — Counsel Stack
Marta Arredondo v. Techserv Consulting and Training, Ltd., T&D Solutions, LLC, and AEP Texas Central Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marta-arredondo-v-techserv-consulting-and-training-ltd-td-solutions-texapp-2018.