Affirmed and Memorandum Opinion filed October =
16,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00324-CV
____________
ROBEY=20
BARTEE, =
Appellant
V.
BAYLOR=20
COLLEGE OF MEDICINE, DAVID E. HARVEY BUILDERS, INC., AND EMCOR =
GOWAN,=20
INC.,=20
Appellees
On Appeal from the =
157th District Court
Harris County, =
Texas
Trial Court Cause =
No. 04-16991
M E M O R=20
A N D U M O P I N I O N
This is an=20
appeal from a summary judgment granted in favor of a property =
owner, a=20
general contractor, and a subcontractor in an action brought by an =
injured=20
employee of a second-tier subcontractor. The injured =
employee=20
contends the trial court erred in rendering judgment against him =
because=20
genuine issues of material fact exist as to whether the property =
owner,=20
general contractor, and subcontractor retained control over the=20
construction work to be performed by his employer, and whether =
these=20
parties had knowledge of a dangerous condition at the work =
site. =20
Concluding that the summary-judgment evidence conclusively proved =
the=20
property owner=3Ds=20
entitlement to summary judgment under Chapter 95 of the Texas =
Civil=20
Practice and Remedies Code, we affirm the trial court=3Ds summary=20
judgment as to the claims against the property owner. =
Concluding=20
that the employee has not presented argument challenging all of =
the=20
independent summary-judgment grounds asserted by the general =
contractor=20
and the subcontractor, we affirm the trial court=3Ds summary=20
judgment as to these companies.
I. Factual and Procedural=20
Background
Appellee=20
Baylor College of Medicine hired appellee David E. Harvey =
Builders, Inc.=20
as the general contractor to oversee a remodeling project for a =
building=20
on Baylor=3Ds =20
premises. Harvey entered into a subcontract with appellee =
Emcor=20
Gowan, Inc. for work on part of the project. Emcor =
thereafter=20
realized that to complete its part of the project, scaffolding had =
to be=20
erected on the building, and thus Emcor entered into a subcontract =
for=20
Sunbelt Rentals, Inc. to perform that job. =
Sunbelt=3Ds=20
employee, appellant Robey Bartee, is the injured complainant in =
this case.=20
At=20
the beginning of the construction project, Harvey organized a =
project=20
Akick-off@ =
safety=20
meeting at which representatives from Harvey, Emcor, and Sunbelt =
were=20
present. According to Harvey:
! =20
The individuals who attended the safety meeting walked around the =
job=20
site, discussed safety requirements, reviewed possible measures =
needed to=20
make a workplace safe, and identified job site hazards. =
! =20
The meeting participants identified the roof capCa six foot by three =
foot=20
piece of sheet metalCas a potential fall =
hazard,=20
and instructed Sunbelt to cover the roof. =20
! =20
Harvey=3Ds superintendent, =
Glen=20
McIntire, conducted an inspection on April 17, 2003, and confirmed =
that=20
Sunbelt had covered the roof with plywood and aluminum walk=20
=
boards. =
=20
! =20
Whenever a new subcontractor entered the job site, Harvey would =
conduct a=20
safety meeting to discuss the job site conditions. Additionally, =
Harvey=20
conducted weekly safety meetings throughout the course of the=20
project.
! =20
At a meeting held on April 17, 2003, Harvey instructed all =
attendees=20
employed by Sunbelt to walk only on the permitted and covered =
pathway on=20
the roof.
On April=20
17, 2003, Bartee, while working on the roof, walked past the area =
where=20
the roof cap was located. He noticed that two plywood and =
aluminum=20
walk boards had been placed over an area of the roof where the =
workers=20
were instructed to walk to get to the scaffolding site. The=20
following day, as he walked along the roof, Bartee noticed that =
the=20
plywood used to designate the permitted pathway was no longer =
present and=20
that the two walk boards were gone. Bartee, however, =
continued to=20
walk along the permitted pathway across the building=3Ds roof and=20
fell through the metal cap covering part of the roof. Bartee =
landed=20
approximately fourteen feet below, suffering various =
injuries.
Bartee=20
brought suit against Baylor, Harvey, and Emcor, alleging =
negligence. =20
The defendants filed a joint traditional motion for summary=20
judgment. The trial court granted the motion. =
Challenging=20
the trial court=3Ds grant of=20
summary judgment, Bartee asserts two issues on appeal:
(1) =20
Whether the trial court erred in concluding there was no genuine =
issue of=20
material fact as to whether any of the three appellees retained =
actual=20
control of the details of the construction work to be performed by =
Sunbelt=20
(Bartee=3Ds employer), and =
(2) =20
Whether the trial court erred in concluding there was no genuine =
issue of=20
material fact as to whether any of the three appellees had =
knowledge of a=20
dangerous condition at the work site and whether the appellees =
adequately=20
warned Sunbelt and Bartee about the dangerous=20
condition.
=
; =
&=
nbsp; &n=
bsp; =20
II. Analysis
In=20
reviewing a traditional motion for summary judgment, we take as =
true all=20
evidence favorable to the nonmovant, and we make all reasonable =
inferences=20
in the nonmovant=3Ds=20
favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2000, pet. denied). If the movant=3Ds motion=20
and summary-judgment evidence facially establish its right to =
judgment as=20
a matter of law, the burden shifts to the nonmovant to raise a =
genuine,=20
material fact issue sufficient to defeat summary judgment. =20
Id. When, as in this case, the order granting summary =
judgment does not specify the grounds upon which the trial court =
relied,=20
we must affirm the summary judgment if any of the independent=20
summary-judgment grounds is meritorious. FM Props. =
Operating Co.=20
v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
A. =20
Did the trial court err in granting summary judgment in favor of =
the=20
premises owner?
In his=20
live petition, Bartee contends that he was an invitee on=20
Baylor=3Ds premises=20
on the day of the incident, that Baylor had actual or constructive =
knowledge of an allegedly dangerous condition on the premises, and =
that=20
Baylor failed to exercise reasonable care to reduce or eliminate =
the=20
risk. He further contends that Baylor, as the property =
owner, was=20
negligent for failing to: (a) discover and remove the allegedly =
defective=20
roof cap, (b) maintain and inspect the roof cap, (c) use due care =
to test=20
and inspect the roof cap to determine its durability and =
functionality,=20
and (d) warn him of the unsafe condition allegedly posed by the =
roof=20
cap.
Bartee=3Ds claims=20
against Baylor are governed by Chapter 95 of the Texas Civil =
Practice and=20
Remedies Code. =20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. ' =
95.001B.003=20
(Vernon Supp. 2005). Section 95.001 defines a Aclaim@ =
as a=20
Aclaim for=20
damages caused by negligence.@ =20
Bartee=3Ds claims=20
against Baylor are all claims for damages premised upon =
negligence. =20
See id. Section 95.002 defines the scope of Chapter =
95 and=20
states that the chapter applies only to negligence claims: =
(1) =20
against a property owner, contractor, or subcontractor for =
personal=20
injury, death, or property damage to an owner, a contractor, or a=20
subcontractor or an employee of a contractor or subcontractor; and =
(2) =20
that arise[] from the condition or use of an improvement to real =
property=20
where the contractor or subcontractor constructs, repairs, =
renovates, or=20
modifies the improvement.
Tex.=20
Civ. Prac. & Rem. Code Ann. =
' =
95.002=20
(Vernon Supp. 2005). Section 95.003 states:
A property owner is =
not=20
liable for personal injury, death, or property damage to a =
contractor,=20
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=20
provide a safe workplace, unless:
(1) =
the=20
property owner exercises or retains some control over the manner =
in which=20
the work is performed, other than the right to order the work to =
start or=20
stop or to inspect progress or receive reports; and
(2) =20
the property owner had actual knowledge of the danger or condition =
resulting in the personal injury . . . and failed to adequately =
warn.=20
See=20
id.=20
' =
95.003.
In its=20
motion for summary judgment, Baylor asserted that the =
summary-judgment=20
evidence proved as a matter of law that it did not exercise or =
retain any=20
control over the manner in which the work was performed. In =
this=20
context, Acontrol@ =
can be=20
shown through the exercise of actual control or the existence of a =
contractual right of control. Chi Energy, Inc. v. Urias, =
156=20
S.W.3d 873, 879 (Tex. App.CEl Paso=20
2005, pet. denied). The right of control is contingent on=20
Baylor=3Ds ability=20
to control the means, methods, or details of Bartee=3Ds=20
work. Id. Baylor=3Ds right to=20
control must go beyond the right to order the work to start or =
stop or to=20
inspect progress or receive reports. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
95.003. Baylor brought forth summary-judgment evidence =
showing that=20
it was not responsible for erecting the plywood walkway or walk =
boards=20
over the roof cap, and that no representative of Baylor ever gave =
Bartee=20
or Sunbelt any instructions or direction on how to perform their =
work on=20
the premises or how to access the roof to get to the scaffolding=20
site. Bartee admitted at his deposition that he had no =
contact with=20
anyone from Baylor before the incident in question. The =
contracts=20
between Baylor and Harvey show that Baylor did not have a right to =
exercise control over the manner in which the work was =
performed. =20
See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex. 2002) =
(concluding that contracts which require compliance with safety =
codes but=20
do not give any greater right than the order to start or stop the =
work do=20
not give a contractual right to control thereby imposing a duty of =
care).=20
Because=20
Baylor=3Ds=20
summary-judgment evidence conclusively proved that it did not =
exercise or=20
retain some control over the manner in which the work was =
performed, other=20
than the right to order the work to start or stop or to inspect =
progress=20
or receive reports, the burden shifted to Bartee to raise a =
genuine issue=20
of fact on this issue. See Kelly v. LIN Television of =
Texas,=20
L.P., 27 S.W.3d 564, 570 (Tex. App.C =
Eastland=20
2000, pet. denied); Dolcefino, 19 S.W.3d at 916. =
Bartee=20
argues that Baylor exercised some control over Sunbelt and its =
employees=20
because Baylor=3Ds general=20
contractor (Harvey) exercised control over the operative details =
such as=20
how the workers should enter the work site, and the path the =
workers=20
should follow to get to the scaffolding site. In support of =
this=20
contention, Bartee cites to excerpts from the deposition of Rick =
Nunley,=20
Emcor=3Ds=20
superintendent, and Rock Morille, the manager of the Facility =
Services=20
Department at Baylor. Nunley stated that Asomeone@ =
from=20
Harvey told him to tell the Sunbelt employees not to use the =
ladder to=20
access the roof. Assuming this assertion to be true, it =
still does=20
not create a fact issue as to whether Baylor controlled the =
general work=20
over the construction site or the specific work of Sunbelt. =
Morille=20
testified that, although he was responsible for the entire =
structure of=20
the Facility Services Department, he never went onto the =
roof. He=20
also stated that he did not maintain the roof himself but was the =
director=20
of the research program that had been granted use of the building =
that was=20
being renovated.
Even if=20
Baylor did exercise control as to how the workers should access =
the roof,=20
doing so is a matter of safety and does not suggest that Baylor =
exercised=20
control over Bartee=3Ds work.=20
General safety guidelines imposed by Baylor do not amount to =
Acontrol=20
over the manner in which the work is performed@ =
under=20
section 95.003 of the Texas Civil Practice and Remedies =
Code. =20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. ' =
95.003;=20
Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 701 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2004, pet. denied) (en banc) (concluding that unless =
the=20
A[property]=20
owner=3Ds=20
>safety=3D =
regulation unwisely imperils the contractor, its imposition and =
observance=20
must be encouraged, not discouraged, and cannot reasonably be =
considered=20
the type of control the legislature envisioned as coming within =
the ambit=20
of [section 95.003 of the Texas Civil Practice and Remedies=20
Code]@). =20
The summary-judgment evidence conclusively proves that =
Baylor=3Ds right to=20
control did not extend to anything other than the Aright to=20
order the work to start or stop or to inspect progress or receive=20
reports,@ =
as=20
permitted by section 95.003(1). See Dyall, 152 S.W.3d =
at=20
700B07=20
(holding that paper mill owner did not exercise or retain control =
over=20
repairs made by independent contractor=3Ds employee=20
on leaking flange, and thus applicable statute precluded =
owner=3Ds=20
liability for injuries to contractor=3Ds employee=20
from inhaling chlorine dioxide); Ashabranner v. Hydrochem =
Indus.=20
Servs., Inc., No. 14-03-00762-CV, 2004 WL 613026, at =
*2B3 (Tex.=20
App.CHouston=20
[14th] Dist.] Mar. 30, 2004, no pet.) (mem. op.) (holding that =
petroleum=20
company that did not exercise control over independent contractor =
under=20
section 95.003 of the Texas Civil Practice and Remedies Code); =
Phillips=20
v. Dow Chem. Co., 186 S.W.3d 121, 135B36 (Tex.=20
App.CHouston=20
[1st Dist.] 2005, no pet.) (concluding summary-judgment evidence=20
conclusively proved owner of chemical plant did not Aexercise=20
or retain some control@ =
under=20
section 95.003 and thus was not liable on claims arising from =
death of=20
construction worker resulting from a fall off of scaffolding, =
where the=20
contractor erected scaffolding and had the responsibility to =
inspect it at=20
the end of every shift, although owner promulgated safety =
standards and=20
had the right to order work stopped for safety violations). =
We=20
conclude that the trial court correctly granted summary judgment =
as to=20
Baylor based upon section 95.003, and we overrule =
Bartee=3Ds first=20
issue as to Baylor.=20
B. =20
Has the injured worker challenged all of the independent =
summary-judgment=20
grounds asserted by the general contractor and the=20
subcontractor?
In his=20
live petition, Bartee alleged the following conduct by Harvey to =
support=20
Bartee=3Ds=20
negligence claim:
1. =20
Failure to participate with Harvey=3Ds subcontractors in =
a review=20
of the construction sites for emphasizing potential dangerous =
areas for=20
subcontractor employees to avoid, or that areas be made =
safe;
2. =20
Failure to use ordinary care in supervising Harvey=3Ds employees or =
subcontractors=20
to make certain that construction site rules for the subcontractor =
employees=3D safety were =
instituted and=20
implemented by its subcontractors pursuant to the contract =
documents and=20
OSHA, state or city safety rules;
3. =20
Failure to use ordinary care in taking precautions to protect the =
safety=20
of [s]ubcontractors[=3D] employees when an =
inherently dangerous condition at the construction site existed, =
such as=20
the metal roof cap;
4. =20
Failure to use ordinary care in not properly reviewing, =
correcting, or=20
modifying the plan to provide a safe access to the site where the=20
scaffolding was to be erected; and
5. =20
Failure to use ordinary care by not providing nor directing that =
the=20
subcontractor use yellow ribbon tape, or other indicators, to =
accentuate=20
the potential danger spots on the access to the site where the =
scaffolding=20
was to be erected.
As to=20
Emcor, Bartee alleged the conduct in items 2, 4, and 5 above as =
well as a=20
failure Ato inspect=20
for inherently dangerous condition [sic] at the construction site =
since=20
employees had to climb and walk on roofs to get to the scaffolding =
site.@ =20
In their=20
motion for summary judgment, Harvey and Emcor asserted the =
following=20
traditional summary-judgment grounds:
! =20
They satisfied any duty to warn at a safety meeting attended by=20
representatives of Sunbelt, during which the roof cap was =
identified as a=20
potential hazard and they confirmed with Sunbelt that it =
would cover=20
the roof cap. They instructed Sunbelt and its employees not to =
walk on the=20
roof cap at a pre-construction safety meeting and at a job site =
safety=20
meeting the day before the accident. Harvey did not =
have a=20
duty to warn every single Sunbelt employee of this danger. =20
See Keeth v. Phillips Petroleum Co., 482 S.W.2d 291, =
294B95 (Tex. Civ.=20
App.CAmarillo 1972, writ =
ref=3Dd n.r.e.) (holding =
that duty=20
to warn was satisfied by the inspection, knowledge, and =
appreciation of=20
the danger of plaintiff=3Ds =
foreman).
! =20
The summary-judgment evidence conclusively proves that the =
dangerous=20
condition of the roof cap was open and obvious.
! =20
They did not exercise actual control over or have the right to =
control=20
Sunbelt=3Ds work.
! =20
They had no duty to ensure that Sunbelt followed OSHA=20
standards.
The trial=20
court granted the motion without specifying the ground on which it =
relied. Therefore, on appeal, Bartee must show that each =
independent=20
ground alleged in the motion is insufficient to support the =
summary=20
judgment. See Ramco Oil & Gas Ltd. v. Anglo-Dutch =
(Tenge)=20
L.L.C., 207 S.W.3d 801, 826 (Tex. App.CHouston=20
[14th Dist.] 2006, pet denied). However, on appeal, Bartee =
has=20
treated all three defendants collectively, as if Chapter 95 =
applied to=20
each of them. Bartee has briefed arguments that there is a =
fact=20
issue as to whether the three defendants exercised or retained =
some=20
control over the manner in which Sunbelt performed its work and as =
to=20
whether the defendants had actual knowledge of a dangerous =
condition at=20
the worksite and failed to adequately warn. Although Bartee =
has=20
presented argument challenging the third ground listed above, =
Bartee has=20
not presented argument as to the other three grounds. =20
Texas Rule=20
of Appellate Procedure 38.1(h) requires appellate briefs to =
Acontain a=20
clear and concise argument for the contentions made, with =
appropriate=20
citations to authorities and to the record.@ =20
Tex. R. App. P. =
38.1(h);=20
Republic Underwriters Ins. Co. v. Mex‑Tex, Inc., 150 =
S.W.3d 423,=20
427 (Tex. 2004). Appellate courts must construe the Texas =
Rules of=20
Appellate Procedure reasonably, yet liberally, so that the right =
to appeal=20
is not lost by imposing requirements not absolutely necessary to =
effect=20
the purpose of a rule. Republic Underwriters Ins. =
Co., 150=20
S.W.3d at 427. Bartee has not provided any argument, =
analysis, or=20
citations showing how the trial court erred in granting summary =
judgment=20
based on the grounds that Harvey and Emcor satisfied any =
duty to=20
warn by warning Sunbelt=3Ds=20
representative and other employees and that no warning was needed =
because=20
the dangerous condition was open and obvious. Even =
construing=20
Bartee=3Ds brief=20
liberally, we cannot conclude that he has adequately briefed these =
issues. See San Saba Energy, L.P. v. Crawford, 171 =
S.W.3d=20
323, 337 (Tex. App.CHouston=20
[14th Dist.] 2005, no pet.). Bartee is required to attack =
every=20
independent ground upon which the trial court could have granted =
summary=20
judgment as to his negligence claims against Harvey and =
Emcor. =20
See Ramco Oil & Gas Ltd., 207 S.W.3d at 826. =
Because=20
Bartee has failed to do so, we conclude the trial court did not =
err in=20
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=20
[14th Dist.] May 17, 2007, pet. filed) (mem. op.) (affirming =
summary=20
judgment regarding claims for which appellant failed to present =
argument=20
attacking all of the independent summary-judgment grounds). =
Accordingly,=20
we overrule Bartee=3Ds first=20
and second issues as to his claims against Harvey and =
Emcor.
We affirm the trial =
court=3Ds=20
=
judgment. &nbs=
p; =
; =20
/s/ =20
Kem Thompson Frost
Justice
Judgment=20
rendered and Memorandum Opinion filed October 16, 2007.
Panel=20
consists of Justices Frost, Seymore, and Guzman.
Our record does not reveal which =
Sunbelt=20
employees were actually in attendance or whether Bartee attended =
this=20
meeting.
Bartee agrees that his claims =
against=20
Baylor are governed by Chapter 95 of the Texas Civil Practice and =
Remedies=20
Code.
Because the =
summary-judgment=20
evidence conclusively proved that Baylor was entitled to summary =
judgment=20
under the first prong of section 95.003(1), we need not and do not =
address=20
the second prong of section 95.003 or Bartee=3Ds second issue as =
to Baylor,=20
which addresses this prong. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' 95.003. |