Robey Bartee v. Baylor College of Medicine, David E. Harvey Builders, Inc., and Emcor Gowan, Inc.

• Court: Court of Appeals of Texas
• Decided: October 16, 2007
• Docket: 14-06-00324-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 16, 2007

Affirmed and Memorandum Opinion filed October 16, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00324-CV

ROBEY BARTEE, Appellant

V.

BAYLOR COLLEGE OF MEDICINE, DAVID E. HARVEY BUILDERS, INC., AND EMCOR GOWAN, INC., Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 04-16991

M E M O R A N D U M   O P I N I O N

This is an appeal from a summary judgment granted in favor of a property owner, a general contractor, and a subcontractor in an action brought by an injured employee of a second-tier subcontractor.  The injured employee contends the trial court erred in rendering judgment against him because genuine issues of material fact exist as to whether the property owner, general contractor, and subcontractor retained control over the construction work to be performed by his employer, and whether these parties had knowledge of a dangerous condition at the work site.  Concluding that the summary-judgment evidence conclusively proved the property owner=s entitlement to summary judgment under Chapter 95 of the Texas Civil Practice and Remedies Code, we affirm the trial court=s summary judgment as to the claims against the property owner.  Concluding that the employee has not presented argument challenging all of the independent summary-judgment grounds asserted by the general contractor and the subcontractor, we affirm the trial court=s summary judgment as to these companies.

I. Factual and Procedural Background

Appellee Baylor College of Medicine hired appellee David E. Harvey Builders, Inc. as the general contractor to oversee a remodeling project for a building on Baylor=s  premises.  Harvey entered into a subcontract with appellee Emcor Gowan, Inc. for work on part of the project.  Emcor thereafter realized that to complete its part of the project, scaffolding had to be erected on the building, and thus Emcor entered into a subcontract for Sunbelt Rentals, Inc. to perform that job.  Sunbelt=s employee, appellant Robey Bartee, is the injured complainant in this case.

 At the beginning of the construction project, Harvey organized a project Akick-off@ safety meeting at which representatives from Harvey, Emcor, and Sunbelt were present.   According to Harvey:

 !      The individuals who attended the safety meeting walked around the job site, discussed safety requirements, reviewed possible measures needed to make a workplace safe, and identified job site hazards.

!       The meeting participants identified the roof capCa six foot by three foot piece of sheet metalCas a potential fall hazard, and instructed Sunbelt to cover the roof.^[1] 

!       Harvey=s superintendent, Glen McIntire, conducted an inspection on April 17, 2003, and confirmed that Sunbelt had covered the roof with plywood and aluminum walk boards.             

!       Whenever a new subcontractor entered the job site, Harvey would conduct a safety meeting to discuss the job site conditions. Additionally, Harvey conducted weekly safety meetings throughout the course of the project. 

!       At a meeting held on April 17, 2003, Harvey instructed all attendees employed by Sunbelt to walk only on the permitted and covered pathway on the roof.

On April 17, 2003, Bartee, while working on the roof, walked past the area where the roof cap was located.  He noticed that two plywood and aluminum walk boards had been placed over an area of the roof where the workers were instructed to walk to get to the scaffolding site.  The following day, as he walked along the roof, Bartee noticed that the plywood used to designate the permitted pathway was no longer present and that the two walk boards were gone.  Bartee, however, continued to walk along the permitted pathway across the building=s roof and fell through the metal cap covering part of the roof. Bartee landed approximately fourteen feet below, suffering various injuries.

Bartee brought suit against Baylor, Harvey, and Emcor, alleging negligence.  The defendants filed a joint traditional motion for summary judgment.  The trial court granted the motion. 

Challenging the trial court=s grant of summary judgment, Bartee asserts two issues on appeal:

(1)     Whether the trial court erred in concluding there was no genuine issue of material fact as to whether any of the three appellees retained actual control of the details of the construction work to be performed by Sunbelt (Bartee=s employer), and

(2)     Whether the trial court erred in concluding there was no genuine issue of material fact as to whether any of the three appellees had knowledge of a dangerous condition at the work site and whether the appellees adequately warned Sunbelt and Bartee about the dangerous condition.

                                                    II.  Analysis

In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant=s favor.  Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  Id.  When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

A.      Did the trial court err in granting summary judgment in favor of the premises owner?

In his live petition, Bartee contends that he was an invitee on Baylor=s premises on the day of the incident, that Baylor had actual or constructive knowledge of an allegedly dangerous condition on the premises, and that Baylor failed to exercise reasonable care to reduce or eliminate the risk.  He further contends that Baylor, as the property owner, was negligent for failing to: (a) discover and remove the allegedly defective roof cap, (b) maintain and inspect the roof cap, (c) use due care to test and inspect the roof cap to determine its durability and functionality, and (d) warn him of the unsafe condition allegedly posed by the roof cap.

Bartee=s claims against Baylor are governed by Chapter 95 of the Texas Civil Practice and Remedies Code.^[2]  See Tex. Civ. Prac. & Rem. Code Ann. ' 95.001B.003 (Vernon Supp. 2005).  Section 95.001 defines a Aclaim@ as a Aclaim for damages caused by negligence.@  Bartee=s claims against Baylor are all claims for damages premised upon negligence.  See id.  Section 95.002 defines the scope of Chapter 95 and states that the chapter applies only to negligence claims:

(1)     against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and

(2)     that arise[] from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement. 

Tex. Civ. Prac. & Rem. Code Ann. ' 95.002 (Vernon Supp. 2005).  Section 95.003 states:

A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury. . . arising from the failure to provide a safe workplace, unless:

(1)     the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and

(2)     the property owner had actual knowledge of the danger or condition resulting in the personal injury . . . and failed to adequately warn.

See id. ' 95.003. 

In its motion for summary judgment, Baylor asserted that the summary-judgment evidence proved as a matter of law that it did not exercise or retain any control over the manner in which the work was performed.  In this context, Acontrol@ can be shown through the exercise of actual control or the existence of a contractual right of control.  Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 879 (Tex. App.CEl Paso 2005, pet. denied). The right of control is contingent on Baylor=s ability to control the means, methods, or details of Bartee=s work.  Id.  Baylor=s right to control must go beyond the right to order the work to start or stop or to inspect progress or receive reports.  See Tex. Civ. Prac. & Rem. Code Ann. ' 95.003.  Baylor brought forth summary-judgment evidence showing that it was not responsible for erecting the plywood walkway or walk boards over the roof cap, and that no representative of Baylor ever gave Bartee or Sunbelt any instructions or direction on how to perform their work on the premises or how to access the roof to get to the scaffolding site.  Bartee admitted at his deposition that he had no contact with anyone from Baylor before the incident in question.  The contracts between Baylor and Harvey show that Baylor did not have a right to exercise control over the manner in which the work was performed.  See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex. 2002) (concluding that contracts which require compliance with safety codes but do not give any greater right than the order to start or stop the work do not give a contractual right to control thereby imposing a duty of care).

Because Baylor=s summary-judgment evidence conclusively proved that it did not exercise or retain some control over the manner in which the work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports, the burden shifted to Bartee to raise a genuine issue of fact on this issue.  See Kelly v. LIN Television of Texas, L.P., 27 S.W.3d 564, 570 (Tex. App.C Eastland 2000, pet. denied); Dolcefino, 19 S.W.3d at 916.  Bartee argues that Baylor exercised some control over Sunbelt and its employees because Baylor=s general contractor (Harvey) exercised control over the operative details such as how the workers should enter the work site, and the path the workers should follow to get to the scaffolding site.  In support of this contention, Bartee cites to excerpts from the deposition of Rick Nunley, Emcor=s superintendent, and Rock Morille, the manager of the Facility Services Department at Baylor.  Nunley stated that Asomeone@ from Harvey told him to tell the Sunbelt employees not to use the ladder to access the roof.  Assuming this assertion to be true, it still does not create a fact issue as to whether Baylor controlled the general work over the construction site or the specific work of Sunbelt.  Morille testified that, although he was responsible for the entire structure of the Facility Services Department, he never went onto the roof.  He also stated that he did not maintain the roof himself but was the director of the research program that had been granted use of the building that was being renovated.   

Even if Baylor did exercise control as to how the workers should access the roof, doing so is a matter of safety and does not suggest that Baylor exercised control over Bartee=s work. General safety guidelines imposed by Baylor do not amount to Acontrol over the manner in which the work is performed@ under section 95.003 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. ' 95.003; Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 701 (Tex. App.CHouston [14th Dist.] 2004, pet. denied) (en banc) (concluding that unless the A[property] owner=s >safety= regulation unwisely imperils the contractor, its imposition and observance must be encouraged, not discouraged, and cannot reasonably be considered the type of control the legislature envisioned as coming within the ambit of [section 95.003 of the Texas Civil Practice and Remedies Code]@).  The summary-judgment evidence conclusively proves that Baylor=s right to control did not extend to anything other than the Aright to order the work to start or stop or to inspect progress or receive reports,@ as permitted by section 95.003(1).  See Dyall, 152 S.W.3d at 700B07 (holding that paper mill owner did not exercise or retain control over repairs made by independent contractor=s employee on leaking flange, and thus applicable statute precluded owner=s liability for injuries to contractor=s employee from inhaling chlorine dioxide); Ashabranner v. Hydrochem Indus. Servs., Inc., No. 14-03-00762-CV, 2004 WL 613026, at *2B3 (Tex. App.CHouston [14th] Dist.] Mar. 30, 2004, no pet.) (mem. op.) (holding that petroleum company that did not exercise control over independent contractor under section 95.003 of the Texas Civil Practice and Remedies Code); Phillips v. Dow Chem. Co., 186 S.W.3d 121, 135B36 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (concluding summary-judgment evidence conclusively proved owner of chemical plant did not Aexercise or retain some control@ under section 95.003 and thus was not liable on claims arising from death of construction worker resulting from a fall off of scaffolding, where the contractor erected scaffolding and had the responsibility to inspect it at the end of every shift, although owner promulgated safety standards and had the right to order work stopped for safety violations).  We conclude that the trial court correctly granted summary judgment as to Baylor based upon section 95.003, and we overrule Bartee=s first issue as to Baylor.^[3]

B.      Has the injured worker challenged all of the independent summary-judgment grounds asserted by the general contractor and the subcontractor?

In his live petition, Bartee alleged the following conduct by Harvey to support Bartee=s negligence claim:

1.       Failure to participate with Harvey=s subcontractors in a review of the construction sites for emphasizing potential dangerous areas for subcontractor employees to avoid, or that areas be made safe;

2.       Failure to use ordinary care in supervising Harvey=s employees or subcontractors to make certain that construction site rules for the subcontractor employees= safety were instituted and implemented by its subcontractors pursuant to the contract documents and OSHA, state or city safety rules;

3.       Failure to use ordinary care in taking precautions to protect the safety of [s]ubcontractors[=] employees when an inherently dangerous condition at the construction site existed, such as the metal roof cap;

4.       Failure to use ordinary care in not properly reviewing, correcting, or modifying the plan to provide a safe access to the site where the scaffolding was to be erected; and

5.       Failure to use ordinary care by not providing nor directing that the subcontractor use yellow ribbon tape, or other indicators, to accentuate the potential danger spots on the access to the site where the scaffolding was to be erected.

As to Emcor, Bartee alleged the conduct in items 2, 4, and 5 above as well as a failure Ato inspect for inherently dangerous condition [sic] at the construction site since employees had to climb and walk on roofs to get to the scaffolding site.@ 

In their motion for summary judgment, Harvey and Emcor asserted the following traditional summary-judgment grounds:

!       They satisfied any duty to warn at a safety meeting attended by representatives of Sunbelt, during which the roof cap was identified as a potential hazard and they confirmed with Sunbelt that it would  cover the roof cap. They instructed Sunbelt and its employees not to walk on the roof cap at a pre-construction safety meeting and at a job site safety meeting the day before the accident.  Harvey  did not have a duty to warn every single Sunbelt employee of this danger.  See Keeth v. Phillips Petroleum Co., 482 S.W.2d 291, 294B95 (Tex. Civ. App.CAmarillo 1972, writ ref=d n.r.e.) (holding that duty to warn was satisfied by the inspection, knowledge, and appreciation of the danger of plaintiff=s foreman).

!       The summary-judgment evidence conclusively proves that the dangerous condition of the roof cap was open and obvious. 

!       They did not exercise actual control over or have the right to control Sunbelt=s work.

!       They had no duty to ensure that Sunbelt followed OSHA standards.

The trial court granted the motion without specifying the ground on which it relied.  Therefore, on appeal, Bartee must show that each independent ground alleged in the motion is insufficient to support the summary judgment.  See Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826 (Tex. App.CHouston [14th Dist.] 2006, pet denied).  However, on appeal, Bartee has treated all three defendants collectively, as if Chapter 95 applied to each of them.  Bartee has briefed arguments that there is a fact issue as to whether the three defendants exercised or retained some control over the manner in which Sunbelt performed its work and as to whether the defendants had actual knowledge of a dangerous condition at the worksite and failed to adequately warn.  Although Bartee has presented argument challenging the third ground listed above, Bartee has not presented argument as to the other three grounds. 

Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h); Republic Underwriters Ins. Co. v. Mex‑Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004).  Appellate courts must construe the Texas Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.  Republic Underwriters Ins. Co., 150 S.W.3d at 427.  Bartee has not provided any argument, analysis, or citations showing how the trial court erred in granting summary judgment based on the grounds that  Harvey and Emcor satisfied any duty to warn by warning Sunbelt=s representative and other employees and that no warning was needed because the dangerous condition was open and obvious.  Even construing Bartee=s brief liberally, we cannot conclude that he has adequately briefed these issues.  See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Bartee is required to attack every independent ground upon which the trial court could have granted summary judgment as to his negligence claims against Harvey and Emcor.  See Ramco Oil & Gas Ltd., 207 S.W.3d at 826.  Because Bartee has failed to do so, we conclude the trial court did not err in granting summary judgment as to these claims.  See Fish v. Marsters Co., No. 14-06-00129-CV, 2007 WL 1438555, at *5 (Tex. App.CHouston [14th Dist.] May 17, 2007, pet. filed) (mem. op.) (affirming summary judgment regarding claims for which appellant failed to present argument attacking all of the independent summary-judgment grounds). Accordingly, we overrule Bartee=s first and second issues as to his claims against Harvey and Emcor.

We affirm the trial court=s judgment.                                 

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed October 16, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

---

^[1]  Our record does not reveal which Sunbelt employees were actually in attendance or whether Bartee attended this meeting.

^[2]  Bartee agrees that his claims against Baylor are governed by Chapter 95 of the Texas Civil Practice and Remedies Code.

^[3]  Because the summary-judgment evidence conclusively proved that Baylor was entitled to summary judgment under the first prong of section 95.003(1), we need not and do not address the second prong of section 95.003 or Bartee=s second issue as to Baylor, which addresses this prong.  See Tex. Civ. Prac. & Rem. Code Ann. ' 95.003.