Affirmed and Memorandum Opinion filed March 29,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-05-01061-CV
____________
DAVID=20
ROGERS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LEROY=20
BROWN, =
Appellant
V.
TEXAS=20
STERLING CONSTRUCTION, L.P. A/K/A TEXAS STERLING CONSTRUCTION, =
INC. A/K/A=20
TEXAS STERLING, L.P., =
Appellee
On Appeal from the =
55th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2004-05023
M E M O R=20
A N D U M O P I N I O N
Appellant=20
David Rogers, individually and as representative of the Estate of =
Leroy=20
Brown, appeals from the trial court=3Ds grant of=20
summary judgment in favor of appellee Texas Sterling Construction, =
L.P.=20
a/k/a Texas Sterling Construction, Inc. a/k/a Texas Sterling, L.P. =
(ATexas=20
Sterling@) for=20
wrongful death and survival claims. We affirm. =
I. =20
Factual and Procedural Background
On August=20
24, 2002, Leroy Brown fell on a sidewalk near the Fiesta =
supermarket=20
located at approximately 4100 San Jacinto Street in Harris County, =
Texas=20
(the AFiesta=20
sidewalk@). =20
Brown, who suffered from advanced leukemia, died one week =
later. =20
David Rogers, the appellant and Brown=3Ds alleged=20
heir at law, sued the City of Houston, the Metropolitan Transit =
Authority=20
(AMETRO@), and=20
Texas Sterling, asserting claims under the wrongful death and =
survival=20
statutes. Rogers alleged that Brown, while walking to catch =
a bus,=20
tripped over an exposed reinforcing bar (Arebar@)=20
protruding from the concrete sidewalk, which the defendants left =
in place=20
while performing construction there. Specifically, Rogers =
contended=20
the defendants negligently failed to (1) Asafeguard=20
pedestrians from work materials,@ =
(2)=20
Atake=20
necessary steps to protect [Brown] from ongoing construction=20
work,@ =
(3)=20
Atake=20
proper measures to block pedestrians from walking in the =
construction=20
area,@ =
and (4)=20
Aprovide=20
proper and safe means of crossing the street or catching a=20
bus.@ =
Texas=20
Sterling thereafter filed a no-evidence motion for summary =
judgment. =20
Texas Sterling claimed Rogers had no evidence of standing because =
he=20
failed to produce a copy of his birth certificate or evidence that =
he was=20
the executor or administrator of Brown=3Ds=20
estate. Texas Sterling further contended Rogers provided no =
evidence=20
of duty, breach, proximate cause, or damages.
In=20
response, Rogers countered that he had standing because he was=20
Brown=3Ds=20
biological, non-marital son and thus an heir at law. In =
support,=20
Rogers submitted affidavits in which both he and his mother =
explained that=20
the circumstances of Rogers=3Ds birth=20
together with Brown=3Ds support=20
of Rogers and representations to others established that Brown was =
his=20
biological father. Rogers also averred that =
Brown=3Ds estate=20
had no debts, his siblings had reached a family settlement plan =
for the=20
assets of the estate, and no administration was pending or=20
necessary. Rogers further attached evidence in support of =
his=20
negligence claim, including copies of (1) a contract between Texas =
Sterling and METRO for the reconstruction of a portion of San =
Jacinto=20
Street, (2) deposition testimony of Kevin Manning, Texas=20
Sterling=3Ds risk=20
manager, (3) Texas Sterling=3Ds=20
discovery admissions, (4) Texas Sterling=3Ds=20
insurance policies for the construction project, (5) photographs =
of the=20
accident scene taken after the fall, (6) Brown=3Ds medical=20
records, including various patient information records from his =
trip to=20
the hospital, a Adeath=20
summary,@ =
and a=20
death certificate, and (7) affidavits from three emergency medical =
technicians (AEMTs@) who=20
cared for and took Brown to the hospital after his fall. =20
As to=20
Texas Sterling=3Ds duty to=20
make safe or warn of defects on the Fiesta sidewalk, Rogers =
maintained the=20
contract showed Texas Sterling Ahad=20
control of the area and was responsible for safety in the =
area@ =
where=20
Brown fell because it required the firm to comply generally with =
federal,=20
state, local, and METRO safety rules and specifically to =
Aprovide=20
warning signs, barricades and verbal warnings as =
required.@ =20
Rogers also pointed to deposition excerpts in which Manning =
testified that=20
Texas Sterling had Aultimate=20
responsibility@ =
for=20
Aall safety=20
on the construction site,@ =
including=20
Akeeping=20
the work site clean,@ =
A[keeping]=20
debris and stuff of [sic] the sidewalk,@ =
Acheck[ing=20
daily] for safety hazards [on the project],@ =
ensuring=20
workers performed operations Ain a way=20
that was safe for pedestrians,@ =
keeping=20
Apedestrian=20
walkways and bus stops . . . clean and functional,@ =
and=20
Amaintain[ing]=20
traffic control and pedestrian devices.@ =20
Rogers additionally noted Manning=3Ds=20
statements that it would be Texas Sterling=3Ds=20
responsibility if it Adid not=20
keep [its] debris off the sidewalk and someone tripped over that=20
debris@ =
and that=20
Arebar knee=20
high across the sidewalk . . . would not be clean and=20
functional.@ =
As to=20
breach, Rogers cited the EMTs=3D =
observations that the general area where Brown fell was under =
construction=20
and that on Athe=20
sidewalk next to the Fiesta store,@ =
rebar=20
protruded from the concrete, no barriers blocked off pedestrian =
traffic,=20
and rebar remained even after the incident. Rogers further =
asserted=20
that pictures allegedly taken after the incident revealed the =
Adangerous=20
conditions at the scene.@ As=20
to causation and damages, Rogers noted both the EMTs=3D =
conclusions that Brown had in fact tripped over the rebar and =
suffered=20
resulting injuries and the medical records indicating Brown had =
fallen=20
face-first onto the sidewalk and came to the hospital with a =
cervical=20
spine fracture, which was listed as the immediate cause of death =
on=20
Brown=3Ds death=20
certificate.
Texas=20
Sterling replied, challenging Rogers=3Ds evidence=20
and contentions regarding duty by attaching additional excerpts of =
Manning=3Ds=20
deposition testimony in which he stated repeatedly that Texas =
Sterling was=20
not responsible for the Fiesta sidewalk because it fell =
Aoutside=20
the scope of the contract.@ =20
Therefore, Manning maintained that Texas Sterling neither worked =
on nor=20
had a duty to discover and correct exposed rebar on the Fiesta =
sidewalk.=20
After=20
hearing the motions, responses, evidence, and arguments, the trial =
court=20
granted Texas Sterling=3Ds motion=20
without specifying its grounds. Rogers now appeals, claiming =
the=20
trial court erred in granting summary judgment because fact issues =
remain=20
regarding whether he has standing to bring his wrongful death and =
survival=20
claims and on each element of his negligence cause of =
action. =20
II. Standard =
of=20
Review
The party=20
moving for no‑evidence summary judgment must assert only =
that there is no=20
evidence of one or more essential elements of a claim or defense =
on which=20
the non‑movant would have the burden of proof at =
trial. See=20
Tex. R. Civ. P.=20
166a(i). The burden then shifts to the =
non‑movant to produce=20
evidence raising a fact issue on the challenged elements. =
See=20
id. A no‑evidence summary judgment is improper if =
the respondent=20
brings forth more than a scintilla of probative evidence to raise =
a=20
genuine issue of material fact. Id.; see Forbes =
Inc. v.=20
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. =
2003). Less=20
than a scintilla of evidence exists when the evidence is so weak =
as to do=20
no more than create a mere surmise or suspicion of a fact. =20
Forbes, 124 S.W.3d at 172. More than a scintilla of =
evidence=20
exists if it would allow reasonable and fair‑minded people =
to differ in=20
their conclusions. Id. As with a traditional =
summary=20
judgment, we view the evidence in the light most favorable to the=20
non‑movant, disregarding all contrary evidence and =
inferences. =20
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.=20
2003).
Furthermore,=20
when the trial court does not specify the basis for its summary =
judgment,=20
we will affirm the judgment if any one of the theories advanced in =
the=20
motion is meritorious. Joe v. Two Thirty Nine Joint =
Venture,=20
145 S.W.3d 150, 157 (Tex. 2004). In other words, the =
appealing party=20
must show each independent ground alleged is insufficient to =
support the=20
summary judgment granted. See Star‑Telegram, Inc. =
v. Doe, 915=20
S.W.2d 471, 473 (Tex. 1995).
III. =20
Analysis
We first=20
address Rogers=3Ds second=20
point of error and determine whether he raised a fact issue =
regarding=20
duty. Rogers contends the evidence shows Texas Sterling =
undertook a=20
duty to provide Asafety in=20
the area@ =
where=20
Brown fell, including the Fiesta sidewalk. Texas Sterling =
counters=20
that Rogers produced no evidence that it had control of the Fiesta =
sidewalk and thus owed Brown a duty. We agree with Texas=20
Sterling.
Whether=20
the defendant owed a duty to the plaintiff is a question of law =
for the=20
court to decide from the particular facts of the case. =
Golden=20
Spread Council, Inc. v. Akins, 926 S.W.2d 287, 289 (Tex. =
1996). =20
An owner or occupier of land generally has a duty to use =
reasonable care=20
to make and keep the premises safe for business invitees. =
See=20
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d =
523, 527=20
(Tex. 1997). However, a party who does not own the premises=20
generally must assume control over and responsibility for the =
premises=20
before becoming subject to liability for a dangerous condition =
existing on=20
the premises. See City of Denton v. Page, 701 S.W.2d =
831, 835=20
(Tex. 1986). AIt is=20
possession and control which generally must be shown as a =
prerequisite to=20
liability.@ =20
Id.; see Barefield v. City of Houston, 846 S.W.2d =
399, 403=20
(Tex. App.CHouston=20
[14th Dist.] 1992, writ denied) (ALiability=20
follows control.@). =20
Indeed, only a general contractor in control of the premises may =
be liable=20
to a business invitee or independent contractor for negligence =
arising=20
from failing to keep the premises safe from defects. =20
Olivo, 952 S.W.2d at 527; see Redinger v. Living, =
Inc., 689=20
S.W.2d 415, 417 (Tex. 1985) (AA general=20
contractor on a construction site, who is in control of =
the=20
premises, is charged with the same duty as an owner or=20
occupier.@ =
(emphasis=20
added)). Control can be demonstrated by ownership, =
occupation,=20
management, or possession of the premises. See Lefmark =
Mgmt. Co.=20
v. Old, 946 S.W.2d 52, 54 (Tex. 1997). Control can be =
proven by=20
either a contractual agreement expressly assigning the right of =
control or=20
an actual exercise of control. Dow Chem. Co. v. =
Bright, 89=20
S.W.3d 602, 606 (Tex. 2002). Determining whether a contract =
provides=20
a right of control is generally a question of law. Lee =
Lewis=20
Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex.=20
2001).
We find=20
Rogers did not meet his burden to raise a fact issue on duty by =
producing=20
more than a scintilla of evidence that Texas Sterling controlled =
the=20
Fiesta sidewalk. In arguing that the contract obliged Texas =
Sterling=20
to make the Fiesta sidewalk safe, Rogers primarily relies on =
provisions=20
requiring adherence to various safety regulations and use of =
physical=20
barriers, warning signs, and verbal warnings. However, these =
provisions do not expressly address safety at the Fiesta =
sidewalk. =20
In fact, many of the contract=3Ds=20
provisions relating to safety and Acleaning=20
up@ =
expressly=20
limit their application to Athe=20
Work,@ =
Ajob site,=20
or Awork area=20
and premises.@ =20
Moreover, though the contract defines Athe=20
Work@ =
generally=20
as the AReconstruction=20
of San Jacinto Street [from] Blodgett to Holman,@ =
it=20
provides that Athe=20
Work@ =
must be=20
performed in accordance with ATechnical=20
Specifications and Drawings,@ =
an=20
exhibit demarcating the specific parameters of the project. =
Rogers=20
failed to attach this exhibit to his response, and the contract =
does not=20
otherwise expressly assign Texas Sterling the right to work or =
duty to=20
provide safety on the Fiesta sidewalk. See Jackson v. =
Houston=20
Lighting & Power Co., No. =
01‑00‑00513‑CV, 2001 WL 953411, at *4=20
(Tex. App.CHouston=20
[1st Dist.] Aug. 23, 2001, no pet.) (not designated for =
publication)=20
(finding no evidence that appellee had control of premises =
containing=20
anchor protruding from sidewalk because appellant produced no =
evidence of=20
boundaries of appellee=3Ds easement=20
on which appellant alleged anchor resided). =20
Furthermore,=20
in contending that Texas Sterling admitted a duty to make the =
Fiesta=20
sidewalk safe for pedestrians, Rogers misinterprets both=20
Manning=3Ds=20
testimony and Texas Sterling=3Ds=20
discovery admissions. Reading Manning=3Ds=20
testimony in context reveals that Manning described Texas=20
Sterling=3Ds duty to=20
make sidewalks safe only in terms of Athe=20
construction site@ =
or=20
Aonsite.@ =20
Significantly, Manning repeatedly testified that the Fiesta =
sidewalk fell=20
outside the scope of the contract, and, as such, Texas Sterling =
never=20
performed work on this sidewalk. In its discovery =
admissions, Texas=20
Sterling conceded only that it served as the general contractor =
for the=20
project described in the contract and that the Fiesta =
sidewalk=3Ds address=20
falls within the project area=3Ds general=20
boundaries. Such admissions are general in nature and do not =
establish Texas Sterling=3Ds specific=20
control of the Fiesta sidewalk. Finally, the =
EMTs=3D =
observations that the general area around the Fiesta sidewalk was =
under=20
construction create only speculation or surmise as to whether =
Texas=20
Sterling controlled this sidewalk. See Kindred v. =
Con/Chem,=20
Inc., 650 S.W.2d 61, 63 (Tex. 1983) (noting that evidence =
creating=20
mere speculation or surmise of existence of fact constitutes no=20
evidence). Because the evidence does not show Texas Sterling =
controlled the Fiesta sidewalk and thus owed a duty to Brown, we =
hold the=20
trial court could have properly granted summary judgment on the =
ground=20
that Rogers produced no evidence of duty. See Mathis v. =
RKL=20
Design/Build, 189 S.W.3d 839, 845 (Tex. App.CHouston=20
[1st Dist.] 2006, no pet.) (holding that architectural firm =
preparing=20
plans for building=3Ds=20
construction owed no duty to contractor injured at building =
because=20
contractual and actual duties showed firm did not control building =
on date=20
of accident); Holman v. KRJ Mgmt., Inc., No. =
14-03-00017-CV, 2004=20
WL 502934, at *2B3 (Tex.=20
App.CHouston=20
[14th Dist.] Mar. 16, 2004, no pet.) (mem. op.) (holding that =
landscaping=20
company owed no duty to condominium complex tenant who slipped on =
muddy=20
sidewalk because contract did not assign company right of control =
over=20
sidewalks and did not address safety inspection duties as to =
sidewalks);=20
Univ. of Houston v. Sterling Bank, 963 S.W.2d 93, 95 (Tex.=20
App.CHouston=20
[14th Dist.] 1997, pet. denied) (noting that occupier of premises =
owes no=20
duty of care to those outside occupied premises for conditions =
occupier=20
did not create and holding that bank leasing glassed-off area =
within=20
university campus center owed no duty to employee who fell outside =
area=20
under bank=3Ds control,=20
according to express terms of lease).
Because we=20
find that the trial court could have properly granted summary =
judgment on=20
the ground that Rogers failed to produce sufficient evidence of =
duty, we=20
overrule Rogers=3Ds second=20
point of error and need not address his remaining points. =
See=20
Joe, 145 S.W.3d at 157.
We affirm=20
the trial court=3Ds=20
judgment.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Memorandum Opinion filed March 29, 2007.
Panel=20
consists of Justices Yates, Anderson, and Hudson.
In its brief, Texas Sterling =
describes its=20
motion for summary judgment to also include a traditional =
motion. =20
Neither the record nor the rules support this description. =
Texas=20
Sterling labeled the motion as Atraditional@ only in an introductory paragraph =
heading and=20
attached only pleadings as evidence. See Laidlaw Waste =
Sys. v.=20
City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (AGenerally, pleadings are not competent =
evidence,=20
even if sworn or verified.@). The remainder of the motion, =
however, is=20
labeled as a Ano-evidence@ motion and includes repeated citations =
only to=20
the no-evidence rule. See Tex. R. Civ. P. =
166a(i). =20
Although motions need not contain headings to clearly delineate =
between=20
traditional and no-evidence bases, they must otherwise meet Rule=20
166a=3Ds requirements, which includes affording =
adequate=20
notice of the grounds sought. See Binur v. Jacobo, =
135 S.W.3d=20
646, 651 (Tex. 2004); Travis v. City of Mesquite, 830 =
S.W.2d 94,=20
101 (Tex. 1992). We find that Texas Sterling failed to give =
Rogers=20
adequate notice of its intent to seek a traditional summary =
judgment, and=20
thus we construe its motion as seeking only a no-evidence summary=20
judgment. Cf. Thomas v. Clayton Williams Energy, =
Inc., 2=20
S.W.3d 734, 741 n.1 (Tex. App.CHouston [14th Dist.] 1999, no pet.) =
(holding that=20
movant failed to provide fair notice it sought no-evidence summary =
judgment where it was unclear whether movant brought motion under =
Rule=20
166a(b) or Rule 166a(i)).
We recognize that several =
exceptions exist=20
to this general rule. See, e.g., Lefmark Mgmt. Co. =
v.=20
Old, 946 S.W.2d 52, 54 (Tex. 1997) (noting that party not in =
control=20
of premises at time of injury may owe duty to make premises safe =
where=20
party creates dangerous condition or agrees to make safe known, =
dangerous=20
condition). However, neither party presented these =
exceptions to the=20
trial court or to this court. See Tex. R. App. P. =
33.1. =20
We have misgivings that Brown =
qualifies as=20
an invitee. See McCaughtry v. Barwood Homes =
Ass'n, 981=20
S.W.2d 325, 329 (Tex. App.CHouston [14th Dist.] 1998, pet. denied) =
(defining=20
invitee as Aa person who enters the premises of =
another in=20
answer to an express or implied invitation from the owner or =
occupier for=20
their mutual benefit@). We nevertheless invoke the =
above duty=20
analysis, as Texas Sterling fails to contend that it owed Brown no =
duty=20
because he did not qualify as an invitee, and neither party =
otherwise=20
addresses Brown=3Ds status. Cf. Scurlock v. =
Pennell,=20
177 S.W.3d 222, 225 & n.1 (Tex. App.CHouston [1st Dist.] 2005, no pet.) =
(applying=20
premises liability duty of landlords to protect invitees from =
third-party=20
criminal acts to appellant not qualifying as invitee because =
appellee=20
failed to contend that no duty arose because appellant lacked =
invitee=20
status). =
|