Opinion issued April 15, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00300-CV ——————————— MICHELLE HUDSON, Appellant V. MEMORIAL HOSPITAL SYSTEM, MEMORIAL HERMANN HEALTH SYSTEM, THYSSENKRUPP ELEVATOR CORPORATION, AND C.B. RICHARD ELLIS, INC., Appellees
On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2016-83958
MEMORANDUM OPINION
In this personal injury suit, Michelle Hudson challenges the trial court’s
summary judgment rendered against her in favor of Memorial Hermann Health System1, CB Richard Ellis, Inc., and ThyssenKrupp Elevator Corporation. Hudson
raises two issues on appeal. She contends that the trial court erred in granting
summary judgment against her because it incorrectly applied principles of premises
liability rather than principles of ordinary negligence to her claims, and she asserts
that there are genuine issues of material fact with respect to her claims, precluding
summary judgment.
We affirm.
Background
Hudson sued Memorial Hermann, claiming that she was injured on Memorial
Hermann’s property. At the time, Hudson was employed by Memorial Hermann, a
non-subscriber under the Texas Workers’ Compensation Act. In her first amended
petition, Hudson alleged that she “was in an elevator on [Memorial Hermann’s]
premises,” when “the elevator stopped suddenly and violently.” She stated that she
had “then pushed the elevator buttons and felt what seemed like an electric shock.”
1 In her original and first amended petitions, Hudson listed both Memorial Hermann Health System and Memorial Hospital System as defendants. In its answer, Memorial Hermann Health System stated that it was “incorrectly designated as ‘Memorial Hospital System’” and indicated that Memorial Hermann Health System and Memorial Hospital System were the same entity being incorrectly referred to interchangeably by Hudson. The record does not reflect any answer or appearance by Memorial Hospital System. In her brief, Hudson refers to Memorial Hermann Health System, which was her employer and the owner of the premises where she claimed to have been injured in this suit, primarily as Memorial Hospital System. To avoid confusion, we refer to the party only as Memorial Hermann Health System (“Memorial Hermann”). 2 Hudson also sued CB Richard Ellis, Inc. (“CBRE”), which managed the
premises, and ThyssenKrupp Elevator Corporation, which provided maintenance
services for the elevator.
Hudson alleged that the malfunctioning elevator “was an unreasonably
dangerous condition created by [the defendants’] failure to properly and timely
maintain, control, inspect and/or service the improperly functioning elevator and/or
warn of the unreasonably dangerous condition.” Hudson alleged that the defendants
had “deviated from the reasonable standard of care,” which “they had a duty to
exercise and [had] breached said duty through its [sic] negligent acts and omissions”
of:
1. Failing to properly maintain the elevator in question;
2. Failing to regularly and systematically inspect the elevator in question so Defendants could make safe or warn of the dangerous condition;
3. Failing to properly inspect the elevator and elevator equipment;
4. Allowing an unreasonably dangerous condition to exist on the property;
5. Failing to correct the unreasonably dangerous condition;
6. Failing to correct the unreasonably dangerous condition before placing the elevator back into service;
7. Failing to properly inspect the elevator and the cause of its repeated failure condition before placing the elevator back into service;
3 8. Failing to warn Plaintiff of the unreasonably dangerous condition of the elevator and elevator equipment; and
9. Failing to discover the unreasonably dangerous condition.
Hudson also pleaded the doctrine of res ipsa loquitor.
Hudson further claimed that “[t]he conditions on the premises posed an
unreasonable risk of harm because it is foreseeable that an improperly inspected and
maintained elevator would malfunction and create an unsafe and unexpected
hazard.” Hudson alleged that the defendants’ “negligent acts or omissions”
proximately caused her “to suffer serious physical injuries.” She sought damages for
medical expenses, physical pain, mental anguish, and lost wages.
Although it was later shown in the summary-judgment proceedings that
Hudson was an employee of Memorial Hermann at the time of her alleged injury
and that Memorial Hermann was a non-subscriber under the Texas Workers’
Compensation Act, Hudson did not allege in her first amended petition (her live
pleading) that she was Memorial Hermann’s employee at the time of the incident.
The only statement Hudson made in her petition, related to her employment, was her
allegation that she “was an invitee at the time of injury because she was on the
premises for work purposes.” In short, Hudson made no allegations that she was
suing for injuries based on any duties Memorial Hermann owed to her in its role as
her employer.
4 Memorial Hermann filed a no-evidence motion for summary judgment,
asserting that Hudson had produced no evidence to support the required elements of
her premises-liability claim. Specifically, Memorial Hermann asserted that there was
no evidence (1) that the elevator, which Hudson claimed injured her, “had a
condition that posed an unreasonable risk of harm,” (2) that Memorial Hermann “had
actual knowledge of the condition,” or (3) that Memorial Hermann had “failed to
exercise reasonable care to reduce or eliminate the risk.”
Hudson responded to Memorial Hermann’s motion by moving for a
continuance to permit her to conduct additional discovery. The trial court granted
the continuance.
ThyssenKrupp filed a combined traditional and no-evidence motion for
summary judgment. In support of its no-evidence motion for summary judgment,
ThyssenKrupp asserted that Hudson had presented no evidence of the elements of a
negligence or premises-liability claim against ThyssenKrupp.
In support of its traditional motion for summary judgment, ThyssenKrupp
offered the affidavit of Brent Early, its operations manager. Early testified that
ThyssenKrupp provided “elevator maintenance services” to the elevators in the
building where Hudson was allegedly injured. Early testified that the incident
involving Hudson was reported to ThyssenKrupp on December 11, 2014, the day
the incident occurred. He stated that the next day, ThyssenKrupp sent two of its
5 mechanics to inspect the elevator. The mechanics “inspected and observed the
elevator’s operation” and “confirmed” that the elevator was operating “correctly and
without malfunction.”
Hudson responded to ThyssenKrupp’s combined motion for summary
judgment. She offered her own deposition testimony in which she stated that, after
the alleged incident, her supervisor, B. Hazard, had taken her to the building
manager’s office to report the incident. Hudson testified that she then heard Hazard
tell the building manager that Hazard had also experienced problems with the
elevator that same day. In addition, she asserted that ThyssenKrupp’s negligence
could be inferred by applying the doctrine of res ipsa loquitor.
Memorial Hermann filed a motion to reconsider its previously filed motion
for summary judgment. Hudson responded by “incorporate[ing] by reference . . . all
arguments presented and evidence attached to her responses” to ThyssenKrupp’s
motion for summary judgment.
CBRE also filed a combined no-evidence and traditional motion for summary
judgment. In support of its no-evidence motion, CBRE claimed that Hudson had
failed to adduce evidence supporting any element of a negligence or premises-
liability claim.
Responding to CBRE’s motion, Hudson offered her own affidavit in which
she stated that prior to the date of her alleged injury, she had observed the elevator
6 malfunctioning on different occasions. She claimed that she “would then notice that
the elevator would be shut down . . . for maintenance.”
Hudson also offered the affidavit of B. Hazard, her former supervisor, who
testified that she had also experienced the elevator malfunction on the same day as
Hudson’s alleged elevator incident. Hazard stated that she had accompanied Hudson
to the building manager’s office to report Hudson’s incident. While there, Hazard
reported that she, too, had experienced the elevator malfunction that day.
In addition, Hudson offered the two-page expert report of J.R. Freeman, a
certified elevator safety inspector. In his report, Freeman opined that, based on his
education and experience, the elevator “probably had a contactor failure.” He stated
that “[m]ore likely than not, this could [have] created a jerking or abrupt stop, or a
clipping of a door lock which could create a jerking and stopping.” After reviewing
documentation related to the maintenance of the elevator, Freeman also noted that
ThyssenKrupp had not produced certain 2014 maintenance records required by the
administrative code regulating elevator safety. Freeman also opined that
documentation produced by ThyssenKrupp did not reflect maintenance of the
elevator that complied with industry standards.
Hudson filed supplemental responses (1) to Memorial Hermann’s motion to
reconsider its combined motion for summary judgment and (2) to ThyssenKrupp’s
combined motion for summary judgment. In the supplemental responses to
7 Memorial Hermann’s and ThyssenKrupp’s motions for summary judgment, Hudson
stated that she was incorporating by reference her arguments and evidence offered
in support of her response to CBRE’s motion.
ThyssenKrupp filed objections to Hudson’s evidence offered in support of her
response to CBRE’s combined motion for summary judgment. Specifically,
ThyssenKrupp objected to Hudson’s affidavit, Freeman’s expert report, and
Hazard’s affidavit. CBRE also filed objections to the evidence, expressly adopting
the objections filed by ThyssenKrupp. In addition, Memorial Hermann objected to
Hudson’s affidavit and to Freeman’s expert report.
The trial court granted most of ThyssenKrupp’s objections to the evidence
and ordered Freeman’s expert report and Hazard’s affidavit struck from the
summary-judgment record. The trial court also struck the majority of Hudson’s
affidavit from the record because her affidavit testimony was inconsistent with her
earlier deposition testimony in which she had testified that she was not aware of any
problems with the elevator before the alleged incident. This included the portions of
Hudson’s affidavit in which she stated that, prior to the alleged incident in this case,
she had observed the elevator malfunctioning.
The trial court signed orders granting Memorial Hermann’s no-evidence
motion for summary judgment and the combined no-evidence and traditional
motions for summary judgment of CBRE and ThyssenKrupp. The orders were
8 signed on the same day. The trial court did not specify whether CBRE’s or
ThyssenKrupp’s motions were granted on no-evidence or traditional grounds. By
granting the motions for summary judgment, the trial court rendered a take-nothing
judgment against Hudson in favor of Memorial Hermann, CBRE, and ThyssenKrupp
(collectively, “Appellees,” hereafter).2
Summary Judgment
In two issues, Hudson asserts that the trial court erred in granting Appellees’
motions for summary judgment.
2 The trial court signed separate orders granting each of Appellees’ motions for summary judgment. The order granting Memorial Hermann’s motion ordered that Hudson’s “causes of action” against Memorial Hermann were dismissed with prejudice and that Hudson “take nothing by her claims” against Memorial Hermann. Similarly, the order granting ThyssenKrupp’s motion provided that the motion was “granted in its entirety, and that Plaintiff Michelle Hudson take nothing from ThyssenKrupp on her causes of action, such causes of action being disposed of by this Judgment.” The order granting CBRE’s motion, which sought summary judgment on causes of action for ordinary negligence and premises liability, ordered that the motion was granted “in all its parts.” Given the record, the orders, taken together, constitute a final judgment. See Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case.”); see also Ritzell v. Espeche, 87 S.W.3d 536, 537–38 (Tex. 2002) (holding that summary judgment was final because it expressly ordered that plaintiff take nothing by his claims even though motion for summary judgment did not address claim added in amended petition after motion for summary judgment was filed); In re Harris Cty. Hosp. Dist. Aux., Inc., 127 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (holding summary judgment order indicated finality because it ordered plaintiff’s cause of action was “hereby dismissed with prejudice and that Plaintiff take nothing by her suit”); Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)) (“[A] final judgment may consist of several orders that cumulatively dispose of all parties and issues.”). 9 A. Standard of Review
We review a trial court’s 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 non-movant, and we indulge every reasonable
inference and resolve any doubts in the non-movant’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 are meritorious. W.
Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
A party seeking summary judgment may combine, in a single motion, a
request for summary judgment under both the no-evidence and the traditional
standards. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). To prevail on a
no-evidence summary-judgment motion, a movant must identify “one or more
essential elements of a claim or defense . . . as to which there is no evidence.” TEX.
R. CIV. P. 166a(i); see B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259
(Tex. 2020). The burden then shifts to the nonmovant to produce “summary
judgment evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i);
B.C., 598 S.W.3d at 259.
A no-evidence summary judgment may not be granted if the non-movant
brings forth more than a scintilla of evidence to raise a genuine issue of material fact
on the challenged elements. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
10 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is “so weak
as to do no more than create a mere surmise or suspicion” of a fact. Id. More than a
scintilla of evidence exists when reasonable and fair-minded individuals could differ
in their conclusions. Id.
To prevail on a traditional summary judgment, the movant bears the burden
of proving that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez,
465 S.W.3d 637, 641 (Tex. 2015). When a defendant moves for 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 its
affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey v.
Booth, 900 S.W.2d 339, 341 (Tex. 1995). An issue is conclusively established if
reasonable minds could not differ about the conclusion to be drawn from the facts in
the record. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681
(Tex. 2017).
If the movant meets its burden, the burden then 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). The evidence raises a
genuine issue of fact if reasonable and fair-minded jurors could differ in their
11 conclusions in light of all of the summary judgment evidence. Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
B. Premises-Liability Law Governs Claim Against Memorial Hermann
In her first issue, Hudson contends that the trial court erred by granting
summary judgment for Memorial Hermann based on the legal principles governing
premises liability rather than on the principles governing ordinary negligence. She
argues that because she was employed by Memorial Hermann, a non-subscribing
employer, and “was injured during the course and scope of her employment on
premises owned and controlled” by Memorial Hermann, her injuries were
“workplace injuries suffered by an employee and subject to the provisions of Chapter
406 of the Texas Labor Code.” Hudson asserts the Labor Code required that her
claim against Memorial Hermann be “determined by an ordinary negligence
standard rather than a premises liability standard.”3 Hudson contends that, for this
reason, she was not required to offer evidence of the elements of premises liability
in her summary-judgment responses, rather, she was required only to offer evidence
of the elements of ordinary negligence.4
3 Hudson now contends on appeal that, based on her status as an employee and Memorial Hermann’s status as her non-subscribing employer, the elements of ordinary negligence—not those of premises liability—also apply to her claims against CBRE and ThyssenKrupp because they are liable as “agents” of Memorial Hermann. 4 Although premises liability is itself a branch of negligence law, it is a “special form” of negligence with elements that define a property owner or occupant’s duty with 12 1. Argument not preserved
Hudson did not raise her argument that the trial court incorrectly applied the
legal principles of premises liability rather than the principles of ordinary negligence
in her summary-judgment responses. A nonmovant must expressly present to the
trial court any reasons for avoiding the movant’s right to summary judgment.
McConnell v. Southside ISD, 858 S.W.2d 337, 343 (Tex. 1993); see TEX. R. CIV. P.
166a(c) (“Issues not expressly presented to the trial court by written motion, answer
or other response shall not be considered on appeal as grounds for reversal.”); D.R.
Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A
non-movant must present its objections to a summary[-]judgment motion expressly
by written answer or other written response to the motion in the trial court or that
objection is waived.”). Because she did not raise this argument in her summary-
judgment responses, Hudson failed to preserve this issue for our review, and we
cannot consider it on appeal as a ground for reversal. See TEX. R. CIV. P. 166a(c);
McConnell, 858 S.W.2d at 343.
respect to those who enter the property. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). To prevail on a premises liability claim against a property owner, an injured invitee must establish four elements: (1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee. Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014). 13 2. Argument without merit
Even if Hudson’s legal argument is properly presented on appeal, we conclude
it is without merit.
Hudson correctly points out that that an employer has a “duty to use ordinary
care in providing a safe workplace.” LMC Complete Auto., Inc., v. Burke, 229
S.W.3d 469, 476 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Kroger
Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)); see TEX. LAB. CODE
§ 411.103(1)–(3) (providing that each employer shall “provide and maintain
employment and a place of employment that is reasonably safe and healthful for
employees,” “install, maintain, and use methods, processes, devices, and
safeguards,” and “take all other actions reasonably necessary to make the
employment and place of employment safe”). Hudson also correctly points out that,
under the Labor Code, if an employer elects to be a non-subscriber to workers’
compensation insurance, as Memorial Hermann has, then a consequence of that
choice is that the non-scribing employer may be sued for negligence by or on behalf
of the employee “to recover damages for personal injuries or death sustained by [the]
employee in the course and scope of the employment.” TEX. LAB. CODE
§ 406.033(a), (d). And she accurately observes that the Labor Code strips the non-
subscribing employer of certain defenses, including contributory negligence and
assumed risk. Id. § 406.033(a). Hudson, however, incorrectly asserts that when an
14 employee sues a non-subscribing employer for personal injuries sustained in the
workplace in the course and scope of her employment, the employee’s claims are
necessarily governed by principles of ordinary negligence, even when, as pleaded
here, the employee’s injuries are proximately caused solely by an alleged dangerous
condition of the workplace premises, and the plaintiff-employee asserts no claim that
her injuries were caused by a breach of the additional duties an employer owes to its
employees.
The unmeritorious nature of Hudson’s argument is revealed by the Supreme
Court of Texas’s opinion in Austin v. Kroger Tex. L.P., 465 S.W.3d 193 (Tex. 2015).
There, the court—in answering a certified question from the Fifth Circuit Court of
Appeals regarding a premises-liability claim asserted by an employee against a non-
subscribing employer5—confirmed that “an employer has the same premises-
5 The certified question was as follows: “Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy?” Austin v. Kroger Tex. L.P., 465 S.W.3d 193, 199 (Tex. 2015). The supreme court provided the following answer:
Under Texas law, an employee generally cannot “recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee’s awareness of the defect” does not 15 liability duty to its employees as other landowners have to invitees on their
premises.” Id. at 202. The court stated that, “[w]hile an employer’s liability [to its
employees] may differ from that of other landowners due to the statutory waiver of
its defenses, its premises-liability duty is the same as that owed by landowners to
invitees generally.” Id. (internal citation omitted; emphasis in original). The supreme
court clarified that an employer’s premises-liability duty, which is the same general
duty as other premises owners, was “a duty to make safe or warn against any
concealed, unreasonably dangerous conditions of which the landowner is, or
reasonably should be, aware but the invitee is not.” Id. at 203. Necessary to the
Austin court’s confirmation that a non-subscribing employer’s premises-liability
duty to its employee is the same as a landowner’s general premises-liability duty to
an invitee is the recognition that an employee’s suit against her employer for
“eliminate the employer’s duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third- party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee’s awareness of the danger, and the [Texas Workers’ Compensation Act] will prohibit a non-subscribing employer from raising defenses based on the employee’s awareness.
Id. at 217.
16 workplace injuries may be based on premises-liability principles rather than on
ordinary negligence principles. See id. at 202; see Arce v. McGough, No. 04-18-
00064-CV, 2018 WL 4608464, at *3 (Tex. App.—San Antonio, Sept. 26, 2018, no
pet.) (mem. op.) (citing Austin and recognizing that, regardless of whether plaintiff
was contractor or employee of defendant-premises owner, duty owed to plaintiff by
premises owner for claim arising from premises defect was the same; that is, “an
employer’s duty to make its premises reasonably safe for employees is identical to
a landowner’s duty to make its premises reasonably safe for invitees generally”).
We note that the court in Simon v. Johns Community Hospital more directly
addressed the argument raised by Hudson here, holding that when “an employee
seeks damages [against her non-subscriber employer] for injuries caused by a
dangerous [premises] condition, he or she must prove the elements of a premises-
liability case.” No. 03–07–00057, 2008 WL 2309295, at *3 (Tex. App.—Austin
June 4, 2008, no pet.) (mem. op.). There, Simon, a nurse, was employed by a
hospital, which was a non-subscriber. Id. at *1. She sued the hospital for injuries that
she sustained when she slipped on a substance on the hospital floor. Id.
The hospital filed a no-evidence motion for summary judgment, asserting that
there was no evidence that it had actual or constructive knowledge of the substance
on the floor, an essential element Simon was required to prove to establish the
17 hospital’s premises liability to her as an employee-invitee. Id. The trial court granted
the hospital’s motion. Id.
On appeal, Simon emphasized that she had pleaded general negligence
theories of recovery based on her allegation that the hospital had not provided a safe
workplace. Id. She insisted that she was “not required to prove the elements of a
premises liability claim because an employer’s duty to its employees to provide them
a safe workplace is conceptually distinct and independent from the duties the
employer owes to invitees generally.” Id. at *2. The court rejected Simon’s
argument, recognizing that “[the] supreme court had stated the general principle that
‘the nature of the duty of the landowner to use reasonable care to make his premises
reasonably safe may, in all material respects, be identical with the nature of the duty
of the master to use reasonable care to provide his servant with a reasonably safe
place to work.’” Id. (quoting Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238,
240 (Tex. 1955), rev’d, in part, on other grounds by Austin, 465 S.W.3d at 212)).
The court clarified that “[t]his does not mean that every negligence claim brought by
an employee against a non-subscriber employer is inherently a premises liability
suit.” Id. at *3 (internal quotation marks omitted).
The court stated that “[t]he imposition of negligence liability for injury caused
by a dangerous condition, as contrasted with injury that is the contemporaneous
result of negligent activity, is what distinguishes a premises defect claim from a
18 claim of ordinary negligence.” Id. at *2 (citing Keetch v. Kroger Co., 845 S.W.2d
262, 264 (Tex. 1992)). On appeal, Simon acknowledged that her “entire liability case
revolve[d] on whether the substance on the floor was a dangerous condition.” Id.
The court stated, “Had there been issues in the instant case not purely dependent on
the existence of this dangerous condition, and on Johns Community Hospital’s
knowledge of its presence, this would not have been a premises liability case.” Id. at
*3 (internal quotation marks omitted). But, when “an employee seeks damages for
injuries caused by a dangerous condition, [as Simon did,] he or she must prove the
elements of a premises liability cause of action.” Id.
We are mindful that, in Austin, the Supreme Court of Texas clarified that “[i]n
a typical premises-liability case, the landowner owes the invitee two duties: a duty
to keep the premises reasonably safe and a duty not to injure the invitee through
contemporaneous negligent activity,”6 but, in a case in which “the landowner is also
an employer and the invitee is also its employee, this additional relationship may
give rise to additional duties, such as a duty to provide necessary equipment,
training, or supervision.” Austin, 465 S.W.3d at 215. The court observed that,
although it had “addressed the interaction between premises-liability claims and
6 Hudson raises no issue on appeal that summary judgment should be reversed because her alleged injuries were caused by a breach of Appellees’ duty not to injure her through “contemporaneous negligent activity.” Instead, her appellate argument focuses on the duties that Memorial Hermann owed to her as her employer. 19 negligent-activity claims on several occasions,” it had “never addressed the
interaction between premises-liability claims and an employer’s other general
negligence duties.” Id. at 215–16.
In Austin, the employee-plaintiff had, in addition to asserting a premises-
liability claim against his employer, alleged that his landowner-employer had failed
“to provide a ‘necessary instrumentality’” to safely do his job.” Id. at 215. The court
stated that the employee’s “instrumentalities claim invoke[d] one of [the] additional
duties [that an employer owed an employee]: the duty to furnish reasonably safe
equipment necessary for performance of the job.” Id. The court observed, “When an
injury arises from a premises condition, it is often the case that any resulting claim
sounds exclusively in premises liability, but that is not necessarily the case. An
injury can have more than one proximate cause.” Id. The court stated that the fact
that the employee had alleged that a condition of the premises proximately caused
his injury did not preclude an additional claim that the employer-landowner’s
negligent failure to provide the instrumentality also caused his injury. Id.
The Austin court determined that, as an employer, the landowner owed its
employee “duties in addition to its premises-liability duty and its duty not to engage
in negligent activities, including the duty to provide [the employee] with necessary
instrumentalities.” Id. at 216 (emphasis added). The court explained that an
instrumentalities claim did not necessarily involve contemporaneous activity by the
20 employer. Id. The court rejected the employer’s assertion that because the employee
had not alleged any negligent activity by the employer-landowner contemporaneous
with the employer’s alleged failure to provide the instrumentality, the employee’s
failure-to-provide-instrumentality claim was barred. Id. However, as relevant to
Hudson’s appellate argument here, the supreme court did not hold that the additional
duties owed by an employer to its employees replaces the premises-liability duty
owed by an employer-landowner for claims arising from a premises condition and
sounding exclusively in premises liability. See id. Rather, an employee-plaintiff’s
claim that her injuries were caused by a breach of the additional duties owed to her
by her employer may be brought in addition to a claim that her injuries were caused
by a breach of the premises-liability duty owed to her by her landowner-employer.
See id.
Turning to the instant suit, a review of Hudson’s pleadings reveals that her
claim against Memorial Hermann sounds in premises liability. Although Hudson’s
amended petition contains separate headings of “Cause of Action: Negligence” and
“Cause of Action: Premises Liability,” “we . . . must look to the substance of a plea
for relief, not merely its titles and headings, to determine the nature of relief sought.”
Garden Oaks Maint. Org. v. Chang, 542 S.W.3d 117, 124 (Tex. App.—Houston
[14th Dist.] 2017, no pet.); see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d
658, 665 (Tex. 2010) (recognizing, in case in which plaintiff had divided petition
21 under headings “Negligence” and “Premises Liability,” that health-care liability
claim cannot be recast as another cause of action to avoid statutory requirements
governing those claims and that whether pleading stated health-care liability depends
on underlying substance of pleading, not its form).
“When the alleged injury is the result of the condition of the premises, the
injured party can recover only under a premises liability theory.” Wyckoff v. George
C. Fuller Contracting Co., 357 S.W.3d 157, 163 (Tex. App.—Dallas 2011, no pet.)
(citing H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992)). “Adroit
phrasing of the pleadings” to encompass other theories of negligence does not affect
application of premises-liability law to the claims. McDaniel v. Cont’l Apartments
Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, pet. denied) (op. on
reh’g).
In her first amended petition, Hudson alleged that she was injured on
Memorial Hermann’s premises when “the elevator stopped suddenly and violently,”
and she “then pushed the elevator buttons and felt what seemed like an electric
shock.” Hudson expressly alleged that “[t]he elevator stopping suddenly and
violently was an unreasonably dangerous condition.” She alleged that her injuries
were a result of the condition of the premises and that the property itself was unsafe.
To the extent that Hudson asserted that Memorial Hermann was negligent in failing
“to properly and timely maintain, control, inspect and/or service the improperly
22 functioning elevator and/or warn of the unreasonably dangerous condition,” these
allegations relate to Memorial Hermann’s purported conduct in creating, failing to
warn of, or failing to correct a condition on the premises that allegedly resulted in
her injuries. See In re Tex. Dep’t. of Transp., 218 S.W.3d 74, 78 (Tex. 2007) (holding
that appellants’ allegations that TxDOT failed to use ordinary care in designing,
inspecting, maintaining, and employing others to inspect and maintain bridge and
surrounding roadway pleaded cause of action for premises or special defect, not
negligent activity, because activities listed by appellants “would be causes of the
conditions at the scene of the accident,” not contemporaneous activities that caused
appellants’ injuries); see also Austin, 602 S.W.3d at 203 (stating that, under
premises-liability theory of recovery, landowner owes a “duty to make safe or warn
against any concealed, unreasonably dangerous conditions of which the landowner
is, or reasonably should be, aware but the invitee is not”). Thus, as pleaded, Hudson’s
claim against Memorial Hermann was a premises-liability claim. See Warner, 845
S.W.2d at 259 (holding that when injury alleged resulted from condition of premises,
injured party alleged only premises-liability claim); see also Shaw v. Wells Fargo
Bank, No. 02-20-00011-CV, 2020 WL 5241188, at *2 n.1, *3 (Tex. App.—Fort
Worth Sept. 3, 2020, no pet.) (mem. op.) (affirming summary judgment where
defendant moved for no-evidence summary judgment only on claim for premises
liability, even though plaintiff had pleaded “cause of action for premises liability,
23 negligence, and/or negligence per se,” because plaintiff had alleged that “a premises
condition caused her injuries,” thus making plaintiff’s claim a premises-liability
claim).
Hudson’s first amended petition also shows that she made no claims against
Memorial Hermann based on its additional duties to her as her employer. The only
statement Hudson made in her amended petition regarding her employment was that
she “was an invitee [on Memorial Hermann’s premises] at the time of injury because
she was on the premises for work purposes.” Hudson indicated that she was suing
Memorial Hermann based on its status as the party that “owned, operated, controlled
and/or occupied” the premise where she was injured. Hudson asserted no claim
against Memorial Hermann based on its status as her employer. And she made no
claim that her injuries were proximately caused by any breach of Memorial
Hermann’s duty to her as her employer to provide a safe workplace.
We hold that, even though the summary-judgment evidence later showed that
Memorial Hermann was her employer, Hudson’s claim against Memorial Hermann,
as pleaded, sounded only in premises liability. Hudson raised no claims against
Memorial Hermann based on any duties that it owed her in its role as her employer.
Cf. Austin, 5 S.W.3d at 215–216. Thus, the trial court properly analyzed Hudson’s
claim against Memorial Hermann under the legal principles and elements of proof
governing premises liability. See Simon, 2008 WL 2309295, at *2–*3.
24 We overrule Hudson’s first issue.
C. Propriety of Summary Judgment
In her second issue, Hudson contends that the trial court erred by granting
summary judgment in favor of Appellees “because genuine issues of material fact
existed as to the elements [of] Hudson’s negligence claims that precluded summary
judgment.”
1. Premises-Liability Claim
In the trial court, Memorial Hermann filed a no-evidence motion for summary
judgment, and ThyssenKrupp and CBRE each filed a combined no-evidence and
traditional motion for summary judgment in which they asserted that Hudson could
not produce more than a scintilla of evidence with respect to any of the elements of
her premises-liability claim. See TEX. R. CIV. P. 166a(i); see also Henkel v. Norman,
441 S.W.3d 249, 251–52 (Tex. 2014). (listing elements of premises liability when
plaintiff is invitee). In her second issue, Hudson has not challenged the merits of
Appellees’ no-evidence motions for summary judgment on her premises-liability
claim. Instead, Hudson continues to assert—as she did in her first issue—that the
elements of proof for ordinary negligence, and not the elements of proof for premises
liability, govern whether summary judgment in Appellees’ favor was proper. Thus,
because she has not challenged the merits of Appellees’ motions for summary
judgment as to her premises-liability claim, we must affirm the trial court’s grant of
25 summary judgment as to that claim. See Little v. Delta Steel, Inc., 409 S.W.3d 704,
722 (Tex. App.—Fort Worth 2013, no pet.) (affirming no-evidence summary
judgment as to gross negligence claim when appellant did not challenge merits of
motion on that claim on appeal); Kipp v. Dyncorp Tech. Servs., LLC, No. 01-06-
00906-CV, 2007 WL 3293719, at *5 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007,
no pet.) (mem. op.) (affirming no-evidence summary judgment on premises-liability
claim because, in trial court, movant asserted no evidence was produced by non-
movant on each element of claim, but, on appeal, non-movant did not address two
elements); see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (proscribing
reversal of summary judgment without properly assigned error).
2. Negligence Claim
As held in the first issue, Hudson has asserted a claim against Memorial
Hermann based only on premises liability, not on ordinary negligence. However, it
is less clear whether Hudson’s claims against CBRE and ThyssenKrupp sound in
premises liability or in negligence. Specifically, it is unclear from the record whether
either CBRE, as property manager of Memorial Hermann’s premises, or
ThyssenKrupp, as the company that serviced the elevator, had the required control
over the property to be liable under a premises-liability theory. See United
Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017) (“[T]he duty to make
the premises safe or warn of dangerous conditions generally runs with the ownership
26 or control of the property, and a defendant’s liability under a premises liability theory
rests on the defendant’s assumption of control of the premises and responsibility for
dangerous conditions on it.” (internal quotation marks omitted)); Allen Keller Co. v.
Foreman, 343 S.W.3d 420, 424 (Tex. 2011) (recognizing that general negligence
principles apply to contractor, which left premises in unsafe condition). Thus, we
determine whether summary judgment was proper based on ordinary negligence
against CBRE and ThyssenKrupp.
The elements of a negligence claim are (1) the existence of a legal duty, (2) a
breach of that duty, and (3) damages proximately caused by the breach. Gharda
USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). In their respective
combined no-evidence and traditional motions for summary judgment, CBRE and
ThyssenKrupp listed each element of a negligence claim and asserted that Hudson
could not produce evidence with respect to any of the elements. See TEX. R. CIV. P.
166a(i).
In her response to CBRE’s no-evidence motion, which she incorporated by
reference into her supplemental response to ThyssenKrupp’s motion, Hudson
pointed to Memorial Hermann’s “case report, a document” filled out after the alleged
incident, describing the incident as reported by Hudson and indicating that the
elevator had been shut down following the incident. Hudson asserted that the case
report was evidence showing that CBRE and ThyssenKrupp had breached their duty
27 of care to her. However, cases have long recognized that the mere occurrence of an
accident is not itself evidence of negligence. See Rankin v. Nash-Tex. Co., 105
S.W.2d 195, 199 (Tex. [Comm’n Op.] 1937); Flores v. Rector, No. 07-19-00274-
CV, 2020 WL 4912921, at *4 (Tex. App.—Amarillo Aug. 20, 2020, no pet.) (mem.
op.); Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 48 (Tex. App.—San Antonio 2005,
no pet.).
Hudson also cited her own affidavit as evidence that CBRE and
ThyssenKrupp breached their duty of care to her. On appeal, she also points to
Hazard’s affidavit. However, the cited evidence is no longer part of the summary-
judgment record. After granting objections to the affidavits, the trial court struck,
from the summary-judgment record, (1) Hazard’s affidavit, (2) the cited portions of
Hudson’s affidavit, and (3) Freeman’s expert report. Hudson raises no challenge on
appeal to the trial court’s order striking her evidence from the record. When
reviewing whether a summary judgment was properly granted, we may not consider
evidence struck from the record because that evidence is not a part of the summary-
judgment record considered by the trial court. See McCollum v. The Bank of New
York Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no pet.)
(citing Trudy’s Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex.
App.—Austin 2010, no pet.); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294 (Tex.
App.—Dallas 2009, no pet.)). Thus, we may not consider the struck portions of
28 Hudson’s affidavit that she relied on in the trial court or Hazard’s affidavit now cited
by Hudson on appeal.
Without more, Hudson’s summary-judgment evidence of a breach of duty
falls short of raising a scintilla of evidence because it is “so weak as to do no more
than create a surmise or suspicion” of fact.7 King Ranch, Inc., 118 S.W.3d at 751;
see also Flores, 2020 WL 4912921, at *4 (holding that evidence showing merely
that accident occurred was insufficient to demonstrate, for purposes of overcoming
grant of no-evidence summary judgment, that defendant had breached duty to
plaintiff). Accordingly, we hold that the trial court did not err in granting no-
evidence summary judgment in favor of CBRE and ThyssenKrupp on Hudson’s
negligence claim.
We overrule Hudson’s second issue.
Conclusion
We affirm the judgment of the trial court.
7 In her response to ThyssenKrupp’s no-evidence motion, Hudson relied on the doctrine of res ipsa loquitor to satisfy her burden on the breach-of-duty element. However, on appeal, Hudson does not assert that res ipsa loquitor would be a sufficient basis to reverse summary judgment on her negligence claim. 29 Richard Hightower Justice
Panel consists of Justices Hightower, Countiss, and Farris.