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Case Number: 05-14-00531-CV
Judge: Elizabeth Lang-Miers
Court: In The Court of Appeals Fifth District of Texas at Dallas
*Randall G. Walters *
*John M. Pease *
*David M. Walsh, IV*
*Douglas R. Lewis*
Description: In July 2008, Flores was installing an HVAC system in a warehouse. He and a co-worker
were working together to install duct work inside the building. Flores was seriously injured
when a scissor lift he was using fell over while extended. Flores sued appellees and others
involved in the construction project.
Alcatel USA Sourcing, Inc. had hired appellee ICI as the general contractor to finish out
the warehouse for use as Alcatel’s distribution center. In his pleadings, Flores alleged that he
was hired by Nationwide HVAC Services, Inc. to work on the warehouse HVAC system and that
appellee 24 Hour, a subcontractor on the project, hired Nationwide as an independent contractor.
Appellee Chasco, who was also working in the warehouse installing sheetrock, had leased the
scissor lift to use there. Flores asserted causes of action against ICI, 24 Hour, and Chasco for
negligence, negligence per se, and gross negligence and alleged they acted with malice toward
him. He also asserted a cause of action based on section 388 of the Restatement (Second) of
Torts. Flores further alleged OSHA violations, but to the extent he considered their alleged
violation an independent cause of action, he has not complained on appeal about the summary
judgment against him on that claim. Additionally, Flores asserted claims against 24 Hour and
ICI for premises liability. Flores also sued Alcatel, Nationwide, H&E Equipment Services, Inc.,
which is the company that leased the scissor lift to Chasco, and the company that leased the
building to Alcatel. These defendants are not parties to this appeal.
24 Hour, ICI, and Chasco each moved separately for summary judgment. 24 Hour
moved for traditional summary judgment on grounds that Flores’s exclusive remedy was through
the workers’ compensation act. ICI and Chasco filed traditional and no-evidence summary
judgment motions. Flores filed objections and special exceptions to all three appellees’ summary
judgment motions. The trial court did not expressly rule on Flores’s objections and special
exceptions. The court granted appellees’ summary judgment motions. This appeal followed.
Summary Judgment for 24 Hour
In part of his second issue, Flores contends the trial court erred when it granted 24 Hour’s
motion for summary judgment. 24 Hour filed a traditional motion for summary judgment
asserting it was entitled to judgment as a matter of law. 24 Hour alleged that at the time of his
injuries, Flores was 24 Hour’s borrowed servant. 24 Hour is a workers’ compensation
subscriber. It thus maintained that Flores’s exclusive remedy was under the provisions of the
workers’ compensation act. Flores maintains fact issues exist regarding whether he was a
The standard of review in traditional summary judgment cases is well established. Wesby
v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 616 (Tex. App.—Dallas 2006, no pet.) (citing
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003)). The issue on
appeal is whether the movant met its summary judgment burden by establishing that no genuine
issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c); Wesby, 199 S.W.3d at 616. The movant bears the burden of proof and all doubts
about the existence of a genuine issue of material fact are resolved against the movant. Wesby,
199 S.W.3d at 616 (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985)).
All evidence and any reasonable inferences must be viewed in the light most favorable to the
nonmovant. Id. Evidence favoring the movant’s position will not be considered unless it is not
A defendant is entitled to summary judgment if it conclusively negates an essential
element of the plaintiff's case or conclusively establishes all necessary elements of an affirmative
defense. Id. (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)). A properly pleaded
affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the
basis for a summary judgment. Id.; see TEX. R. CIV. P. 94. The exclusive remedy provision of
the Texas Workers’ Compensation Act is an affirmative defense. Wesby, 199 S.W.3d at 617.
After the movant produces evidence entitling it to summary judgment, the burden then
shifts to the nonmovant to present evidence of any issues that would preclude summary judgment
or create a fact issue. Id. Summary judgment will be affirmed only if the record established that
the movant conclusively proved all elements of its affirmative defense as a matter of law. Id.
(citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).
Texas has long recognized that a general employee of one employer may become
the borrowed servant of another. Id. A borrowed servant is properly covered by the borrowing
employer’s workers’ compensation insurance. Id. Thus, to prevail on
the borrowed servant affirmative defense, the employer must plead and prove that (1) the
employee was a borrowed servant; (2) the employee was entitled to workers’ compensation
benefits; and (3) the employer had workers’ compensation insurance that covered the claims
asserted by the borrowed servant. Id. at 617–18. Of these elements, Flores challenges only
whether 24 Hour established that he was its borrowed servant.
As summary judgment evidence, 24 Hour presented portions of Flores’s deposition. In it,
Flores testified that he began working for Nationwide in March 2008. (Flores referred to
Nationwide as “AC” in his deposition.) Nationwide would send him out to a location to work for
24 Hour. 24 Hour would direct his work, tell him what needed to be done, and what work to do.
24 Hour would tell him when to start and stop, as well as supervise him throughout the day.
When he was working at the warehouse in question, someone with 24 Hour told him what to do
and when to start and stop. He worked from 7a.m. to 4p.m. at the warehouse. At the warehouse,
he remembered being supervised by Toby Walters, who was employed by 24 Hour. Walters told
Flores what to do and Flores considered him to be his boss. Flores was part of team that installed
air conditioning units on the roof of the warehouse. When that job was finished, Walters
instructed Flores to work on the ductwork. He gave Flores orders regarding the work and would
tell him and others what time to break for lunch. Walters provided the materials Flores required
to do the job.
When Flores arrived at work on the day of the accident, Walters told him to keep hanging
ductwork. Different trades were working in different areas of the building. There were also
electricians, plumbers, and people doing sheetrock. Flores spent two hours assembling
ductwork. Then Walters wanted him to help another worker, Federico, install the ductwork
“straight down from the roof.” Flores and Federico did that from 9 until 12. Flores picked up
the ducts and held them while Federico screwed them in. They used one scissor lift at that time.
They would use the scissor lift to install a piece, and then lower the lift to get another piece.
Federico operated the lift’s controls. After a break for lunch, Walters instructed Flores to
continue working with Federico. They needed to hang a different piece of duct, a “90 degree
angle.” Walters noticed that the weight of both men and “the 90” was too much for one scissor
lift. Walters instructed Flores to get a second scissor lift. Walters directed Flores to use a
particular lift. Flores testified that Federico had the 90 degree duct with him in the first lift.
Flores and Federico raised the lifts up, “[Federico] with the duct and [Flores] by himself.” Flores
testified that he believed that the scissor lift hit the ductwork that was already hanging from the
roof and slipped. Walters was present at the time of the accident.
24 Hour also attached portions of the deposition of Thomas Littrell, Flores’s expert, to its
motion for summary judgment. Littrell testified that Nationwide provided its employees to 24
Hour for them to use to install the HVAC in the warehouse. According to Littrell, Walters had
testified that he was directing Flores’s work on the day of the accident. Walters provided the
materials Flores was using. Littrell understood that Flores was a borrowed employee under the
direction of 24 Hour.
In response, Flores asserted that his summary judgment evidence established that he was
not 24 Hour’s borrowed servant. The excerpts of Flores’s deposition attached to his response
provided more details about the accident. For example, Flores stated that after his scissor lift
reached the necessary height, he turned it off by touching a button. He estimated he was 15 to 16
feet off the ground. Federico handed Flores the 90 and as he pulled it toward him, he felt his lift
starting to go up. Flores was not sure what caused his lift to continue going up. He could not see
whether the ductwork had come in contact with the controls. When Flores realized the lift was
falling, he grabbed onto the railing. Flores was hospitalized for a month and a half and had not
worked since the accident. Flores testified that Walters did not tell him where to position his
scissor lift. Flores decided where to position the lift.
In his deposition, Walters testified that he was working as a lead man or supervisor for 24
Hour at the time of this incident. His responsibilities included supervising the work that goes on
the air conditioning end of the job site. At the time of the accident, Walters was assembling
ducts near the lifts the men were using. He heard a crunching sound, so he looked up. He saw
the railing of Flores’s lift hitting the duct work suspended from the ceiling. The duct then swung
out from the pressure and hit the side of Flores’s lift and tipped it over. Walters stated that he
told Flores to hang the duct work and told him to use the scissor lift to do so. Walters testified
that Flores and his co-worker positioned the 90 on the rails of both scissor lifts before raising the
Flores also presented other summary judgment evidence, including deposition testimony
from Joe Holden, 24 Hour’s safety director. Holden testified that 24 Hour directed the
temporary workers from Nationwide on the job site. The supervisor would tell them when and
where to arrive and each task that they were supposed to do.
24 Hour’s summary judgment evidence established that it controlled the details of
Flores’s work. See Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 477 (Tex. 2005) (worker hired
by temp agency and injured while working for agency’s client was employee of client where
client controlled details of his work). Flores disputes that the details of the work that caused the
injury were not specifically directed by Walters. He asserts that the fact that Walters instructed
Flores to use Chasco’s scissor lift, in tandem with Federico in 24 Hour’s scissor lift, to lift the 90
so it could be connected to the duct work was insufficient control over the details. He relies on
the fact that Walters did not control the details by which Flores and Federico raised the lifts and
the 90. Flores also cites Walters’s testimony that Walters was not looking up at him and
Federico as they used the two lifts together as evidence he was not controlling the details of the
work. Although Flores asserts he was expected only to give the results called for by 24 Hour and
thus could not be a borrowed servant, the evidence shows 24 Hour controlled the details of the
work he was doing, such as when and how to install the duct work, rather than just leaving it to
Flores to achieve the result. Flores seems to argue that 24 Hour needed to direct every small
aspect of his work. This is not the law. And Littrell, Flores’s own expert, testified Flores was 24
Hour’s borrowed servant.
Flores asserts that because he did not speak much English, and Walters spoke only a little
bit of Spanish, a fact issue exists regarding whether Walters could have controlled the details of
his work. Flores stated that Walters spoke a little bit of Spanish. Walters spoke to Federico and
Federico would explain what he said to Flores. Also, both Flores and Walters indicated they
communicated through gestures. Walters pointed to the scissor lift and indicated he wanted
Flores to use it to help connect the 90. Walters testified that Flores and his co-worker could
understand him a little bit and he could understand them a little bit. This evidence does not raise
a fact issue about whether Walters controlled the details of the work.
In addition, Flores contends the trial court should have denied 24 Hour’s motion for
summary judgment due to the terms of the written Subcontract Agreement between Nationwide
and 24 Hour. Flores attached a copy of the agreement to his summary judgment response. He
cites language in the agreement that states, “Subcontractor [Nationwide] agrees to provide such
Work under the general direction of Contractor [24 Hour].” Flores also relies on language
stating that neither Nationwide nor its representatives shall hold themselves out as, or claim to be
acting in the capacity of, an employee of 24 Hour. Finally, Flores refers to language in the
agreement stating that the agreement shall not be construed to create a contractual relationship of
any kind between anyone other than 24 Hour and Nationwide. This language is not inconsistent
with the evidence that 24 Hour controlled the details of Flores’s work, and we conclude it does
not raise a fact issue.
Flores also contends that his deposition testimony contains improper legal conclusions
due to the fact that he had only an eighth grade education, which he received in Mexico. Flores
relies on Dodd v. Twin City Fire Ins. Co., 545 S.W.2d 766 (Tex. 1977). At issue in that case was
whether the plaintiff was an employee of Lone Star or a borrowed servant of Texas Farm. Lone
Star and Texas Farm were owned by the same six people. They were “companion businesses,”
located on adjacent lots with a shared business office. A jury found that the plaintiff was an
employee of Lone Star. Id. at 768. The court of civil appeals reversed, concluding that, as a
matter of law, the plaintiff was a borrowed servant of Texas Farm. The supreme court reversed
the court of appeals, holding there was evidence to support the jury’s finding. The court of
appeals had relied heavily on the plaintiff’s testimony that “they borrowed me up there” as
concession that he was Texas Farm’s borrowed servant. The supreme court noted the plaintiff’s
tenth grade education. Flores relies on the following language in the opinion, “On redirect
examination he made it clear that he did not mean that he was a borrowed servant in the legal
sense, if indeed he was capable of forming that correct conclusion.” Id. at 769. Here, Flores did
not testify that he was a borrowed servant. He instead testified about the manner in which
Walters with 24 Hour directed his work. Dodd does not stand for the proposition that he was not
qualified to do so due to his limited education. In his brief, Flores quotes various yes or no
answers he gave in his deposition and argues the testimony amounts to legal conclusions because
he did not give any underlying facts. We have reviewed Flores’s deposition and it contains
underlying facts about Flores’s work at the warehouse. The trial court did not err in granting
summary judgment for 24 Hour. We overrule that portion of Flores’s second issue that relates to
24 Hour’s motion for summary judgment.
Included with his response to 24 Hour’s motion for summary judgment were objections
and special exceptions to 24 Hour’s motion for summary judgment. In his first issue, Flores
contends in part that the trial court abused its discretion when it failed to sustain his objections
and special exceptions to 24 Hour’s motion. Although Flores’s issue mentions special
exceptions, the argument in his brief under this issue contains only argument about 24 Hour’s
summary judgment evidence. He does not complain that its motion needed clarification. Flores
objected to the affidavit of Olga Varela and now contends the court should have stricken it for
various reasons. We have resolved the issue of whether summary judgment for 24 Hour was
proper without considering Varela’s affidavit. Because 24 Hour’s summary judgment evidence
was sufficient without Varela’s affidavit, we need not consider this portion of Flores’s first issue.
See Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.]
2000, no pet.) (court does not review all objections to summary judgment evidence, only those
with bearing on outcome).
Summary Judgment for Chasco
We turn now to the propriety of summary judgment in favor of Chasco, the company that
rented the scissor lift Flores was using when he was injured. Chasco filed a traditional and no
evidence motion for summary judgment. As traditional grounds for summary judgment, Chasco
asserted that it owed Flores no duty because he was not its employee or independent contractor.
Chasco also asserted Flores had no evidence of any of the elements of his causes of actions. In a
portion of his second issue, Flores contends he produced more than a scintilla of evidence
regarding the elements of his negligence claims.
In reviewing a no-evidence summary judgment, we review the evidence in the light most
favorable to the respondent against whom the summary judgment was rendered. Smith v.
O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009). If the respondent brings forth more than
a scintilla of probative evidence to raise a genuine issue of material fact, a no
evidence summary judgment cannot properly be granted. Id.
The elements of a negligence cause of action are the existence of a legal duty, a breach of
that duty, and damages proximately caused by the breach. Gharda USA, Inc. v. Control Sols.,
Inc., 464 S.W.3d 338, 352 (Tex. 2015). We begin by examining whether Flores produced more
than a scintilla of evidence regarding the duty element. Before there can be a cause of action for
negligence, the defendant must have recognized legal duty or obligation to the plaintiff. Hanus
v. Tex. Utils. Co., 71 S.W.3d 874, 880 (Tex. App.—Fort Worth 2002, no pet.). Flores
acknowledges that he was not an employee or independent contractor of Chasco and that it did
not supervise his work. Flores first seems to argue that Chasco owed him a duty based on the
rental agreement between Chasco and H&E. He cites language in the agreement requiring
Chasco to be “responsible for equipment until picked up by or delivered to H&E, regardless of
rental call off time/date.” This language is in a paragraph obligating H&E to make every effort
to pick up rental equipment at a time when a customer representative will be available. As a
matter of law, this language does not create any duty on the part of Chasco to Flores.
Flores also contends Chasco had a duty to provide suitable warnings regarding the scissor
lift because Chasco created a dangerous condition on the premises. Flores cites section 388 of
the restatement of torts. Under section 388, a supplier of a chattel is liable for “physical harm
caused by the use of the chattel in the manner for which and by a person for whose use it is
supplied,” if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
RESTATEMENT (SECOND) OF TORTS § 388 (1965). Under section 388, the question of
whether a duty to warn exists must be evaluated in light of the knowledge of ordinary
consumers. Morris v. Adolph Coors Co., 735 S.W.2d 578, 585 (Tex. App.—Fort Worth 1987,
writ ref’d n.r.e.). There is no duty to warn of obvious dangers. Id.
Flores does not specify what the dangerous condition of the scissor lift was. Dangers that
are common knowledge to the ordinary consumer require no warning. Id.; see Sauder Custom
Fabrication v. Boyd, 967 S.W.2d 349, 350 (Tex. 1998) (manufacturer of cylindrical pressure
vessel at refinery had no duty to warn experienced journeyman of risk of falling from makeshift
scaffold created inside vessel). Here, Flores has not pointed to any dangers in the use of the
scissor lift that an ordinary user of the lift would not be aware of. Flores cites many cases in his
brief, all of which are distinguishable. See, e.g., Humble Sand & Gravel, Inc. v. Gomez, 146
S.W.3d 170, 186 (Tex. 2004) (if section 388 applied, supplier of flint used for abrasive blasting
had no duty to warn plaintiff’s employer that inhalation of silica dust can be fatal because
supplier had reason to believe employer knew of dangers); Producers Chem. Co. v. McKay, 366
S.W.2d 220, 226 (Tex. 1963) (supplier of compressor involved in explosion sent its employees to
job site to operate compressor); Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 305 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied) (when child choked on balloon, negligence claim under
section 388 failed because balloon was used for something other than its intended use, which is
to fill with air or water). We conclude Flores has not produced more than a scintilla of evidence
that Chasco owed him a duty and therefore the trial court did not err in granting summary
judgment for Chasco. We overrule that portion of Flores’s second issue that relates to his claims
Summary Judgment for ICI
Finally, we turn to the summary judgment in favor of ICI. ICI initially filed a combined
traditional and no-evidence motion for summary judgment. As traditional grounds for summary
judgment, ICI asserted that it owed no duty of care to Flores because it did not retain any control
over the manner in which Flores performed his work. In the no-evidence portion of its motion,
ICI asserted that Flores had no evidence of the elements of his negligence claims. The trial court
granted summary judgment for ICI on Flores’s negligence claims. Flores’s premises liability
claim remained. ICI then moved for a no-evidence summary judgment on the elements of
Flores’s premises liability claim. The trial court granted the motion.
In his appellate brief, Flores refers to ICI as the general contractor for the finish out of the
distribution center. He refers to 24 Hour as the HVAC subcontractor on the job. Ordinarily a
general contractor does not owe a duty to insure that an independent contractor performs its work
in a safe manner. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). A duty
does arise if the general contractor retains some control over the manner in which the
independent contractor performs its work. Id. A general contractor retains the right to control an
independent contractor’s work either by contract or by actual exercise of control. Id.
To show evidence of ICI’s duty to him, Flores relies on the Construction Services
Agreement between Alcatel and ICI. He cites portions of the agreement requiring ICI to provide
all of the resources necessary for the work. He maintains that the agreement imposed a duty on
ICI because ICI retained control over the work Flores performed on the jobsite. But there is no
evidence that ICI was hired to install the HVAC system. Nor is there any evidence in the record
of any contractual agreement between ICI or one of its subcontractors and 24 Hour or
Nationwide for HVAC services. In fact, in his reply to 24 Hour’s motion for summary
judgment, Flores himself produced a copy of a separate Construction Services Agreement
between Alcatel and 24 Hour. Flores has not presented any evidence that he was working for a
subcontractor of ICI. As such, the contract between ICI and Alcatel does not create a duty to
Flores also failed to present evidence that ICI exercised actual control over him at the
warehouse. He attached the affidavit of Joe Holden, 24 Hour’s safety director, to his response to
ICI’s motion for summary judgment. Holden testified that ICI did not direct any of the work
being done by 24 Hour. Walters was the one who gave the instructions about installing the ducts
and had control over the work being done by Flores. We conclude the trial court correctly
granted summary judgment for ICI on Flores’s negligence-based claims because Flores did not
produce more than a scintilla of evidence ICI owed him a duty.
Turning to Flores’s premises liability claim, ICI filed a no-evidence motion for summary
judgment asserting Flores had no evidence of the elements of such a claim. Specifically, ICI
argued Flores had no evidence: ICI was a possessor of the premises, had actual or constructive
knowledge of some dangerous condition on the premises, any alleged condition posed an
unreasonable risk of harm to Flores, ICI breached a duty of ordinary care to Flores by failing to
adequately warn of the condition and failing to make the condition reasonably safe, and any
breach proximately caused Flores’s injuries. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d
934, 935 (Tex. 1998).
Flores relies on affidavit testimony from David Graves, ICI’s vice president, that ICI had
a superintendent on the job site supervising ICI’s subcontractors. But it is unclear what Flores
alleges the dangerous condition of the premises to be. In his brief, Flores refers to ICI’s failure
to inspect the lift while he was in it or to warn him of the hidden dangers of using the lift without
proper training. These are allegations of a negligent activity, not a premises defect. See Clayton
W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527–30 (Tex. 1997) (premises defect and
negligent activity are independent theories of liability; injury allegedly caused by equipment left
on ground was premises defect). He cites no authority for the proposition that the presence or
condition of the scissor lift alone was an unreasonably dangerous condition. We conclude Flores
produced no evidence that ICI had actual or constructive knowledge of a dangerous condition on
the premises. We overrule that portion of Flores’s second issue that relates to the summary
judgment for ICI.
In a portion of his first issue, Flores contends the trial court erred in overruling his
objections to some of ICI’s summary judgment evidence, specifically the affidavits of David
Graves and Joe Holden. We have upheld the summary judgment for ICI on no-evidence grounds
and thus have not considered ICI’s summary judgment evidence. Flores’s complaint is moot.
We overrule his first issue.
Finally, we note that after Flores’s claims against appellees were disposed of by summary
judgment, he still had claims pending against Alcatel. In their appellate brief, appellees assert
that Flores waived his right to complain of the summary judgments because Flores’s counsel and
counsel for Alcatel subsequently approved an agreed order of dismissal that dismissed the action
with prejudice. At oral argument, Flores maintained the agreed order merely disposed of his
remaining claims against Alcatel. We note that after the trial court signed the agreed order, it
heard and denied Flores’s motion for reconsideration of ICI’s motion for summary judgment.
Because we have determined that the trial court properly granted summary judgment in favor of
all three appellees, we need not consider appellees’ alternative argument for affirming the
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