Reversed=20
and Remanded and =
Majority=20
and Dissenting Opinions filed May 22, 2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-05-00996-CV
____________
GEORGE=20
MATHIS, JR., =
Appellant
V.
RESTORATION=20
BUILDERS, INC., =
Appellee
On Appeal from the =
215th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2002-45378C
M A J O R=20
I T Y O P I N I O N
Appellant,=20
George Mathis, Jr. (Mathis), appeals from a summary judgment in =
favor of=20
appellee, Restoration Builders, Inc. (Restoration). =
Restoration=20
moved for summary judgment on both traditional and no-evidence=20
grounds. The trial court expressly granted summary judgment =
on the=20
ground that Mathis produced no evidence of causation. Mathis =
appeals, claiming that he raised a genuine issue of material fact =
by=20
presenting conflicting testimony from Restoration=3Ds=20
president, Robert Granberry. Mathis also contends that the =
court=20
erred in granting the no-evidence summary judgment because he was =
entitled=20
to an inference of liability under the doctrine of res ipsa=20
loquitur. Because we find Mathis raised a genuine issue =
of=20
material fact in his response to the no-evidence summary judgment =
motion,=20
we reverse and remand for further proceedings.
Factual=20
and Procedural Background
On October=20
30, 2001, Mathis visited a building owned by Petersen to review =
the=20
property so he could propose a bid on wrought iron work. =
Mathis fell=20
through a hole in the building=3Ds elevated=20
slab. The hole had been covered by a piece of =
cardboard. =20
He landed on the concrete flooring below, and sustained injuries =
to his=20
head, neck, and torso. Mathis brought suit against Petersen =
and=20
Restoration, claiming negligence and negligence per se.
Restoration=20
moved for summary judgment, claiming there was no evidence of =
causation as=20
to the negligence claim, and no evidence of any element of =
negligence per=20
se. Restoration also moved for traditional summary judgment =
on the=20
basis of the affirmative defenses of intervening and new and =
independent=20
causes. The trial court expressly granted the summary =
judgment based=20
on its finding that no evidence of causation existed, thus =
disposing of=20
both the negligence and negligence per se causes of action on=20
Restoration=3Ds=20
no-evidence summary judgment action. The trial court denied the=20
traditional motion for summary judgment based on intervening and =
new and=20
independent causes. =20
The court severed all claims between Mathis and Restoration from =
the=20
original suit, and this appeal followed.
Analysis =
I. =20
Conflicting Testimony Raised a Fact =
Issue
Mathis=3Ds reply to=20
Restoration=3Ds motion=20
for summary judgment purported to raise a fact issue as to=20
causation. The pertinent evidence amounts to conflicting =
statements=20
by Restoration=3Ds=20
president, Robert Granberry, that Restoration both did and did not =
cover=20
the hole at issue in this case. The statement that the hole =
was=20
covered came from a deposition of Granberry, and the statement =
that the=20
hole was not covered by Restoration came from an affidavit in =
support of a=20
prior motion for summary judgment.
A.=20
Standard of Review
A=20
no‑evidence summary judgment is essentially a pretrial =
directed verdict,=20
and we apply the same legal sufficiency standard in reviewing a=20
no‑evidence summary judgment as we apply in reviewing a =
directed=20
verdict. King Ranch, Inc. v. Chapman, 118 =
S.W.3d 742,=20
750B51 (Tex.=20
2003). We review the entire record in the light most =
favorable to=20
the nonmovant, indulging every reasonable inference and resolving =
any=20
doubts against the motion. City of Keller v. Wilson, =
168=20
S.W.3d 802, 824 (Tex. 2005). However, per City of =
Keller,=20
although we Amust=20
consider all the summary judgment evidence on file, in some cases, =
that=20
review will effectively be restricted to the evidence contrary to =
the=20
motion.@ =20
Id. at 825. Thus, in this case, our review is limited =
to the=20
evidence favoring Mathis that was attached to the Response to the =
Motions=20
for Summary Judgment, even though the body of =
Restoration=3Ds Motion=20
for Summary Judgment, which was both a traditional and no-evidence =
motion,=20
contained testimony on which Restoration relied. Id.; =
Tex. R. Civ. P. =
166a(i). A=20
no‑evidence summary judgment is improperly granted if the =
respondent=20
brings forth more than a scintilla of probative evidence to raise =
a=20
genuine issue of material fact. King Ranch, 118 =
S.W.3d at=20
751. More than a scintilla of evidence exists when the =
evidence=20
Arises to a=20
level that would enable reasonable and fair‑minded people to =
differ in=20
their conclusions.@ =20
Id. (quoting Merrell Dow Pharms., Inc. v. =
Havner, 953=20
S.W.2d 706, 711 (Tex. 1997)).
We turn=20
now to the evidence Mathis presented. As we noted earlier, =
our=20
inquiry is restricted to whether Mathis raised a fact issue as to=20
causation, because the trial court granted the no-evidence motion =
as to=20
causation, which is relevant to both negligence and negligence per =
se.
B. =20
Mathis=3Ds Evidence=20
Raises an Issue as to Causation
The=20
evidence Mathis attached to his response accomplished two things: =
First,=20
it showed that Granberry, the President of Restoration, knew about =
the=20
hole and took steps to ensure the safety of his people by covering =
it when=20
workers were not using the hole to extract refuse. Second, =
the=20
evidence created a fact issue as to whether Restoration covered =
the hole=20
when it left the premises. It created a fact issue because =
it=20
contained conflicting statements by Granberry that Restoration =
both did=20
and did not cover the hole at issue in this case. Both =
statements,=20
one made during a deposition, the other in an affidavit, were very =
precise=20
and direct in nature, specifically referred to the hole that =
caused=20
Mathis=3Ds=20
injuries, and were completely contradictory.
1. =20
Cause in Fact
Restoration=20
first contends that whether the hole was covered or not raises no =
genuine=20
issue of material fact as to causation of Mathis=3Ds=20
injuries. The elements of causation are cause in fact and=20
foreseeability. Western Invs., Inc. v. Urena, 162 =
S.W.3d 547,=20
551 (Tex. 2005). Cause in fact is established when the act =
or=20
omission was a substantial factor in bringing about the injuries, =
and=20
without it, the harm would not have occurred. IHS Cedars=20
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, =
799=20
(Tex. 2003). Cause in fact is not established when the=20
defendant=3Ds=20
negligence does no more than furnish a condition which makes the =
injuries=20
possible. Id. Any act of negligence that does =
no more=20
than put a person in a particular place at a particular time is =
too remote=20
to constitute legal cause. Roberts v. Healey, 991 =
S.W.2d 873,=20
878B79 =20
(Tex. App.CHouston=20
[14th Dist.] 1999, pet. denied). In explaining cause in =
fact, the=20
supreme court has said:
In order to be a =
legal cause=20
of another=3Ds harm, it is not =
enough that=20
the harm would not have occurred had the actor not been negligent. =
* * *=20
[T]his is necessary, but it is not of itself sufficient. The =
negligence=20
must also be a substantial factor in bringing about the=20
plaintiff=3Ds harm. The word =
Asubstantial@ is used to denote =
the fact=20
that the defendant=3Ds conduct has such =
an effect=20
in producing the harm as to lead reasonable men to regard it as a =
cause,=20
using that word in the popular sense, in which there always lurks =
the idea=20
of responsibility, rather than in the so‑called Aphilosophic=20
sense,@ which includes =
every one of=20
the great number of events without which any happening would not =
have=20
occurred. Each of these events is a cause in the so‑called =
Aphilosophic=20
sense,@ yet the effect of =
many of=20
them is so insignificant that no ordinary mind would think of them =
as=20
causes.
Lear=20
Siegler, Inc. v. Perez, =
819=20
S.W.2d 470, 472 (Tex. 1991) (quoting Restatement (Second) of Torts =
' =
431, cmt.=20
a (1965)).
Thus,=20
regarding the cause in fact prong of causation, the salient =
inquiry is=20
whether the summary judgment evidence, viewed in the light most =
favorable=20
to Mathis, could enable a juror to reasonably believe that =
Restoration did=20
not merely create the conditions making the injuries possible, but =
was=20
negligent in such a way that it ought to bear some responsibility =
for=20
causing the harm. Here, Restoration=3Ds=20
negligence, if any, is not so attenuated that it is only a cause =
in the=20
philosophical sense. Rather, if Restoration left the hole=20
uncoveredCas its=20
President, Robert Granberry, stated under oathCthat act,=20
though an indirect proximate cause, could cause someone to cover =
the hole=20
with a defective material such as cardboard, which someone did in =
this=20
case, directly causing Mathis=3Ds=20
injuries. In this way, the failure to cover the hole could =
have been=20
a substantial factor in bringing about Mathis=3Ds=20
harm. See Dew v. Crown Derrick Erectors, Inc., 208 =
S.W.3d=20
448, 453 (Tex. 2006) (plurality opinion) (holding that because =
removal of=20
a rope barrier around an open hole in the floor of an oil platform =
was a=20
foreseeable intervening force, platform erector was not entitled =
to an=20
instruction on new and independent cause). Thus, =
Mathis=3Ds summary=20
judgment evidence is sufficient to raise a fact issue as to cause =
in=20
fact.
2. =20
Foreseeability
The second=20
prong of causationCforeseeabilityCalso is=20
met. Foreseeability means that the actor, as a person of =
ordinary=20
intelligence, should have anticipated the dangers that his =
negligent act=20
created for others. Travis v. City of Mesquite, 830 =
S.W.2d=20
94, 98 (Tex. 1992). Mathis easily meets the foreseeability =
requirement,=20
because the type of harm that a person of ordinary intelligence =
would=20
anticipate from the negligent act is the type of harm that =
occurred. =20
A hole in the floor, which opens into a basement area, poses a =
risk that a=20
person might fall through the hole and suffer injury as a=20
result. If a hole was left uncovered on a work site, it is =
quite=20
foreseeable that someone would attempt to cover the hole and might =
choose=20
an ineffective material. This is precisely what happened in =
this=20
case. Thus, the harm was entirely foreseeable.
3. =20
Restoration=3Ds Argument=20
that the Statements Are Not Inconsistent =
Fails
Restoration=20
next argues that there is no inconsistency in the testimony of=20
Restoration=3Ds=20
president. On the face of the statements, they are clearly=20
contradictory. In his affidavit, Granberry states =
ARestoration=20
Builders did not dig or cover any holes on the property at issue,=20
including, but without limitation to the hole at issue which has =
been=20
described as >a hole=20
next to a wall about twenty to thirty feet (20'B30') from=20
a sidewalk which is covered by cardboard.=3D@ In=20
his deposition testimony, he stated that AAs far as=20
the hole itself,...I personally used powder actuated nails to =
[i]mbed the=20
[steel] plate...over the hole.@ =20
Restoration=20
attempts to explain away this inconsistency by referring us to =
further=20
deposition testimony by which Granberry explains that in the =
affidavit he=20
was trying to say that Restoration never covered the hole with=20
cardboard. However, we cannot consider this testimony =
because it=20
was not before the trial court, and, more importantly that is not =
what the=20
affidavit said. See Tex. R. Civ. P. =
166a(c). =20
The trial court had before it only Mathis=3Ds evidence=20
in response to the no-evidence motion. See id. The =
trial=20
court could not consider any of the evidence attached to the =
traditional=20
motion for summary judgment. See Binur v. Jacobo, 135 =
S.W.3d=20
646, 651 (Tex. 2004). Therefore, the portion of=20
Granberry=3Ds=20
deposition in which he explained the affidavit was not in the =
summary=20
judgment record.
Even if=20
the evidence had been before the trial court, we would reach the =
same=20
result because the deposition testimony explaining away the =
affidavit=20
would require us to weigh the evidence presented to resolve a =
conflict in=20
the testimony. In this case we cannot do that. See =
City of=20
Keller, 168 S.W.3d at 825. Based on the foregoing, we =
hold that=20
the trial court erred in granting a no-evidence summary judgment =
on the=20
element of causation. The conflicting testimony presented by =
Mathis,=20
when viewed in the light most favorable to him, was sufficient to =
create a=20
genuine issue of material fact.
II. =20
Res Ipsa Loquitur
For the=20
sake of judicial economy, we will consider Mathis=3Ds res ipsa=20
loquitur argument, even though we have already concluded that the =
case=20
should be remanded. See Cincinnati Life Ins. Co. v. =
Cates,=20
927 S.W.2d 623, 625 (Tex. 1996). Res ipsa is a doctrine used =
when=20
the circumstances surrounding an accident constitute sufficient=20
circumstantial evidence of the defendant=3Ds=20
negligence to support such a finding. Marathon Oil Co. v. =
Sterner, 632 S.W.2d 571, 573 (Tex. 1982). Res ipsa =
consists of=20
two factors: 1) the character of the accident is such that =
it would=20
not ordinarily occur absent negligence; 2) the =
instrumentality=20
causing the injury is shown to have been under the management and =
control=20
of the defendant. Id. The first factor is =
necessary to=20
support an inference of negligence, while the second is necessary =
to=20
support the inference that the negligence was committed by the=20
defendant. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, =
251 (Tex.=20
1974). The instrumentality need not have been in the =
constant=20
control of the defendant. Id. It is enough that =
Athe=20
defendant was in control at the time that the negligence inferable =
from=20
the first factor probably occurred, so that the reasonable =
probabilities=20
point to the defendant and support a reasonable inference that he =
was the=20
negligent party.@ =20
Id. Res ipsa is not available when =
multiple=20
defendants exercised control over the instrumentality and any one =
of them,=20
wholly independent of the others, might have been responsible for =
the=20
injury. See Marathon Oil Co., 632 S.W.2d at =
573B74; =20
Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., =
962=20
S.W.2d 193, 195 (Tex. App.CHouston=20
[1st Dist.] 1998, pet. denied).
The second=20
element has not been satisfied. The summary judgment =
evidence shows=20
that Restoration used the hole to remove debris from the basement =
of the=20
building, and that Restoration fenced the site. However, =
none of=20
this evidence shows that Restoration was in control of the =
injury-causing=20
instrumentality at the time of Mathis=3Ds=20
fall. Mathis, therefore, failed to implicate the res ipsa =
loquitur=20
doctrine.
Even if=20
Mathis had implicated res ipsa by showing that Restoration had =
been in=20
control of the instrumentality at some point, the evidence in=20
Mathis=3Ds response=20
to the summary judgment motion shows that Restoration left the =
property in=20
December of 1999. The injury here did not occur until =
October of=20
2001. A period of almost two years passed when Restoration =
was=20
clearly not in control of the premises. Any negligence might =
be=20
attributable to whomever was in control during that period of =
almost two=20
years. Therefore, res ipsa cannot apply here. See=20
Marathon Oil Co., 632 S.W.2d at 573B74;=20
Esco Oil & Gas, Inc., 962 S.W.2d at 195. =20
Conclusion=20
Having=20
found that Mathis raised a genuine issue of material fact as to =
the=20
element of causation, we hold that summary judgment was =
inappropriate on=20
the negligence and negligence per se causes of action =
and=20
remand for further proceedings on those claims.
/s/ =20
Wanda McKee Fowler
Justice
Judgment rendered =
and=20
Majority and Dissenting Opinions filed May 22, 2007. =
(Edelman, J.=20
Dissenting).
Panel=20
consists of Justices Fowler, Edelman, and Frost.
Accordingly, we will not review=20
Restoration's traditional motion for summary=20
=
judgment. |