Affirmed; Opinion Filed June 23, 2015.




                                                   In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                           No. 05-12-01599-CV

                          VICTOR MALDONADO, Appellant
                                        V.
                 SUMEER HOMES, INC., PALMER DRYWALL, L.L.C., AND
                      ISC BUILDING MATERIALS, INC., Appellees

                         On Appeal from the 101st Judicial District Court
                                      Dallas County, Texas
                             Trial Court Cause No. DC-10-01137-E

                                 MEMORANDUM OPINION
                               Before Justices Myers, Evans, and O'Neill1
                                       Opinion by Justice Evans
         Victor Maldonado appeals from three adverse summary judgments in his personal injury

lawsuit against Sumeer Homes, Inc., Palmer Drywall, L.L.C., and ISC Building Materials, Inc.

(Builders). In two issues, Maldonado generally asserts that the trial court reversibly erred in (1)

failing to sustain his objections and special exceptions to the Builders’ respective summary

judgment affidavits, and (2) granting the Builders’ summary judgment motions. After reviewing

the record, we conclude that Maldonado failed to meet his evidentiary burden in response to the

Builders’ no-evidence motions for summary judgments. We therefore affirm the trial court’s

judgment.

    1
      The Honorable Michael J. O'Neill, Justice, Court of Appeals, Fifth District at Dallas, Retired, sitting by
assignment.
                                          BACKGROUND

       This dispute arises out of injuries Maldonado sustained during the construction of a home

being built by Sumeer Homes. Maldonado, a sheetrock installer who was working on stilts, was

injured when he tripped and fell on a stack of sheetrock in the kitchen where he was working. At

the time of the accident, Maldonado was working for Arturo Galvan who was hired by Palmer,

the drywall subcontractor, to supply the labor for the sheetrock installation on the home. Palmer

contracted with ISC to supply and deliver the sheetrock to the home. ISC, in turn, hired Moises

Aguilar who delivered and stacked the sheetrock in the kitchen and other rooms for installation.

       After his accident, Maldonado sued the Builders and Arturo Galvan asserting various

negligence theories and a claim for gross negligence. Specifically, Maldonado alleged that his

accident was caused by the negligently placed sheetrock and failure to warn of the danger. He

further alleged he was instructed to work on stilts by defendants’ agents in an area where it was

“not safe to utilize the stilts as there was sheetrock negligently placed on the ground there by

employees and/or authorized agents of [ISC]” and that all the defendants were responsible for the

supervision and safety of workers at the job site.

       Each of the Builders moved for summary judgment asserting both traditional and no-

evidence grounds. In three separate orders, the trial court granted summary judgment in favor of

the Builders without specifying the grounds relied on for its rulings. Although the trial court had

previously denied Galvan summary judgment, the claims against him were later dismissed for

want of prosecution. Maldonado then filed this appeal.

                                             ANALYSIS

       We review a trial court’s summary judgment de novo.              See Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). The party moving for a traditional summary

judgment has the burden of establishing there are no genuine issues of material fact and that it is

                                                –2–
entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c). In a no-evidence motion

for summary judgment, however, the non-movant must present more than a scintilla of probative

evidence to raise a genuine issue of material fact on each challenged element of a claim on which

the non-movant has the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review the summary judgment evidence under either type of

motion in the light most favorable to the non-movant. See Pain Control Inst., Inc. v. GEICO

Gen. Ins. Co., 447 S.W.3d 893, 897 (Tex. App.—Dallas 2014, no pet.). More than a scintilla of

evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706,

711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

       We begin our analysis addressing whether the trial court erred in granting the Builders’

no-evidence summary judgment motions. The Builders challenged the breach and proximate

cause elements of Maldonado’s negligence claims in their no-evidence summary judgment

motion. They also asserted Maldonado had no evidence they violated a statute to support a

negligence per se claim; no evidence that the Builders were employers, employed Maldonado, or

that the Builders were engaged in a discriminatory practice to support a claim under section

21.055 of the labor code; and no evidence that Galvan was their employee or that they breached

any duty to hire competent employees that proximately caused Maldonado’s damages or

supported a cause of action for negligent hiring or retention. On appeal, Maldonado does not

address or present any argument regarding the Builders’ no-evidence grounds on his negligence

per se claim, claim under section 21.055 of the labor code and negligent hiring/retention claim.

Accordingly, we affirm the summary judgment on those claims.

       With respect to his remaining negligence claims, Maldonado contends the trial court

“committed reversible error when it failed to find that [Maldonado] produced more than a

                                              –3–
scintilla of credible evidence that [the Builders] owed duties to provide [Maldonado] with a

reasonably safe place to work, which they breached and thereby proximately caused or

contributed to his fall and resulting injuries and damages.”                  Specifically, he contends his

summary judgment evidence demonstrates that his injury resulted from either a premises defect

or activity over which the Builders had some control. We analyze Maldonado’s negligence and

premises liability claims together.

          The elements of actionable negligence are a duty owed to one party from another, a

breach of that duty, and damages proximately caused by the breach of that duty. See Lee Lewis

Const., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). Premises liability is a special type of

negligence claim where the duty owed depends on the status of the plaintiff at the time of the

incident. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004). To prevail under his

premises liability claim, Maldonado must establish, among other things, that a condition on the

premises posed an unreasonable risk of harm. See id.

          The Builders asserted that they were entitled to summary judgment on Maldonado’s

negligence claims because he had no evidence of the elements of breach or causation.2 To

establish breach of a duty, Maldonado must show the Builders did something an ordinarily

prudent person exercising ordinary care would not have done under those circumstances, or that

the Builders failed to do that which an ordinarily prudent person would have done in the exercise

of ordinary care. See Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.—Dallas 2004, pet.

denied).      To establish proximate causation, Maldonado must show “cause in fact” and

foreseeability. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). The test for cause

in fact is whether the act or omission was a substantial factor in causing the injury without which



   2
       ISC also challenged the element of duty in its no-evidence summary judgment motion.


                                                       –4–
the harm would not have occurred. Id. These causation elements cannot be established by mere

conjecture, guess or speculation. Id.

        We need not decide whether the Builders had a duty to provide Maldonado with a

reasonably safe place to work. As noted above, all of Maldonado’s negligence claims were

based on the allegedly “negligently placed” sheetrock and/or the Builder’s failure to supervise

Maldonado’s work. Having reviewed the record, we conclude Maldonado has provided no

evidence that the placement of the sheetrock or that the Builders’ failure to supervise were

breaches that proximately caused his injuries and damages.

        In response to the Builders’ summary judgment motions in the trial court below,

Maldonado presented (1) various Builders’ responses to interrogatories, requests for production,

and requests for disclosure; (2) deposition excerpts from Builders’ representatives, Maldonado,

Galvan, and Maldonado’s co-worker Juan Garcia, who was a witness to the accident; (3)

Maldonado’s affidavit3; and (4) an affidavit and preliminary and supplemental reports from

Maldonado’s safety expert, Tom Littrell.4

        On appeal, Maldonado largely focuses his discussion on whether the Builders had a duty

with respect to Maldonado rather than the other negligence elements at issue in the Builders’ no-

evidence summary judgment motions. To the extent he does address breach and proximate

causation, he argues his evidence creates a fact question about whether the sheetrock stacked in

the kitchen was a defective or dangerous condition. Maldonado relies in part on his deposition

and affidavit testimony that although he was aware of the sheetrock pile, there was not “a lot” of


    3
       Maldonado also complains about the trial court’s ruling sustaining ISC’s objections to his summary judgment
affidavit. Because it makes no difference to our conclusion, we consider the affidavit along with Maldonado’s other
summary judgment evidence for the purposes of our discussion and analysis regarding whether he met his
evidentiary burden with respect to the Builders’ no-evidence summary judgment.
    4
    The safety expert’s affidavit and reports were attached only to Maldonado’s response to ISC’s motion for
summary judgment.


                                                       –5–
room to move around it. He testified that after putting on the stilts and working for less than an

hour, he attempted to turn around and “knocked into or tripped over the stack of sheetrock on the

floor and . . . fell[.]” He was “going by the side” of the stack of sheetrock and didn’t know how

he tripped. In Garcia’s deposition, also relied on by Maldonado, he testified that Maldonado was

trying to cross over the sheetrock sheets and got stuck or slipped, causing him to fall. Garcia

indicated that Maldonado had room to walk around the sheetrock pile with stilts and had been

working on the stilts around the sheetrock in the kitchen for about an hour before his fall.

        Other evidence on which Maldonado relies to defeat the Builders’ no-evidence motions

include: Sumeer was the homebuilder and general contractor; Palmer was one of Sumeer’s

subcontractors that provided the sheetrock piled up in the kitchen; it was industry standard to

stack sheetrock in the middle of the room; in light of the kitchen’s dimensions, there was only

three feet on each side and four feet on each end of the stack in which to walk on stilts while

installing the sheetrock5; Sumeer’s superintendent did daily walk-throughs of the premises and

was there in the morning prior to Maldonado’s fall; Maldonado was wearing stilts while

installing the sheetrock to be able reach ten feet above the concrete slab; Galvan was supervising

the sheetrock installers on the date of Maldonado’s fall; Sumeer’s director of operations admitted

that stilts might be used if the ceiling is over eight feet high, but he had no opinion on the

condition of the floor area where workers were using stilts; as Sumeer’s independent contractor,

Palmer had the responsibility of putting up the drywall; and no one from Palmer or Sumeer

supervised how appellant installed the sheetrock.




    5
       Maldonado does not cite to any evidence discussing the particular dimensions of the kitchen at issue. Instead,
his conclusions about the amount of room he had to work is based on his own testimony that the sheets of sheetrock
were four feet wide and twelve feet long and the deposition testimony of a Sumeer representative who confirmed its
kitchen areas were between 200 and 250 square feet. From this testimony Maldonado speculates, “it is reasonable to
infer that the kitchen [where Maldonado fell] had been framed to be only 10 feet wide and 20 feet long.”


                                                        –6–
       What Maldonado’s evidence does not show is any breach on the part of the Builders that

proximately caused his accident. There is no evidence that the sheetrock should not have been

placed in the kitchen or that the area in which Maldonado was working was unsafe. Other than

the mere happening of Maldonado’s accident, there is nothing in Maldonado’s evidence to

suggest that the placement of sheetrock in the kitchen breached any duty the Builders allegedly

owed to Maldonado. The mere occurrence of an accident is no evidence of negligence, but the

character of the accident, and surrounding circumstances may be such to support a finding that

without negligence, the accident would not have occurred. See Brinegar v. Porterfield, 705

S.W.2d 236, 238 (Tex. App.—Texarkana 1986), aff’d, 719 S.W.2d 558 (Tex. 1986). Here, based

on the evidence presented by Maldonado, the character of the accident and the surrounding

circumstances simply do not raise a fact issue about whether his accident would not have

happened absent negligence on the part of the Builders. There is no evidence that the sheetrock

was negligently placed, that Maldonado should not have been working on stilts, or that his

accident was the result of a failure to supervise his work. In fact, Maldonado’s own safety expert

opined that “the accident [Maldonado] had was just that—an accident. He got his stilts caught or

slipped on something that caused his fall.” Accordingly, Maldonado did not meet his burden of

presenting sufficient evidence to create a fact issue on whether the Builders breached any duty

that proximately caused his accident and injuries. See W. Invs., Inc., 162 S.W.3d at 551.

Because Maldonado did not present sufficient evidence of breach and proximate cause in

response to the Builder’s no-evidence summary judgment, the trial court did not err in granting

summary judgment on his negligence claims.

       In their traditional summary judgment motions, the Builders argue that because

Maldonado cannot prevail on his negligence claims, the Builders are also entitled to summary

judgment on his gross-negligence claims. We agree. Negligence and gross-negligence are not

                                               –7–
separable causes of action but are inextricably intertwined in that gross negligence presumes a

negligent act and includes more elements. See Bastida v. Aznaran, 444 S.W.3d 98, 110 (Tex.

App.—Dallas 2014, no pet.).       Because we have already concluded the trial court properly

granted summary judgment on Maldonado’s negligence claims, the Builders were entitled to

summary judgment on his gross-negligence claims as a matter of law. See Wortham v. Dow

Chem. Co., 179 S.W.3d 189, 201 n.16 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (plaintiff

who cannot support cause of negligence cannot succeed on gross negligence).

       Our resolution of these issues make it unnecessary to address Maldonado’s remaining

complaints regarding the propriety of the Builder’s traditional motions for summary judgment

and his complaint about the trial court’s failure to sustain his objections and special exceptions to

the Builders’ traditional summary judgment affidavits.

        We affirm the trial court’s judgment.




                                                      / David Evans/
                                                      DAVID EVANS
                                                      JUSTICE
121599F.P05




                                                –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

VICTOR MALDONADO, Appellant                           On Appeal from the 101st Judicial District
                                                      Court, Dallas County, Texas
No. 05-12-01599-CV         V.                         Trial Court Cause No. DC-10-01137-E
                                                      Opinion delivered by Justice Evans, Justices
SUMEER HOMES, INC., PALMER                            Myers and O'Neill participating.
DRYWALL, L.L.C., AND ISC BUILDING
MATERIALS, INC., Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellees Sumeer Homes, Inc., Palmer Drywall, L.L.C., and ISC
Building Materials, Inc. recover their costs of this appeal from appellant Victor Maldonado.


Judgment entered this 23rd day of June, 2015.




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