
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00088-CV


Marsha Dawn Weiss, Appellant

v.

Davis Tucker; Lufthefe, LLC d/b/a North by Northwest, Appellees




FROM THE DISTRICT COURT OF 261ST COUNTY, TRAVIS JUDICIAL DISTRICT
NO. D-1-GN-07-003972, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



NO. 03-08-00089-CV


Marsha Dawn Weiss, Appellant

v.

Pinnacle Construction of Austin, Texas; Appellees




FROM THE DISTRICT COURT OF 261ST COUNTY, TRAVIS JUDICIAL DISTRICT
NO. D-1-GN-07-003973, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N
		Appellant Marsha Dawn Weiss sued appellees Pinnacle Construction of Austin,
Texas ("Pinnacle") and Davis Tucker and Lufthefe, LLC d/b/a North by Northwest (collectively, the
"restaurant owners") for personal injuries Weiss sustained when she was struck by a falling light
fixture in the "North by Northwest" restaurant in Austin.  In these consolidated appeals, we consider
whether the trial court erred in granting summary judgment for appellees Pinnacle and the restaurant
owners.  In two issues, Weiss claims that the summary judgments should be reversed because she
raised genuine issues of material fact concerning whether Pinnacle, the general contractor, actually
installed or controlled the installation of the light fixture that caused her injuries and whether the
restaurant owners exercised control over the independent contractors who designed, built, and
installed the fixture.  We will affirm the summary judgments.

FACTUAL AND PROCEDURAL BACKGROUND
		Weiss was a patron at the North by Northwest restaurant when a custom-built light
fixture fell from the dining room ceiling onto her head and shoulders, causing her severe injuries. 
The light fixture, which weighed one hundred pounds, had been suspended from the ceiling using
a ceiling fan mounting kit rated for a maximum load of forty pounds.  It is undisputed that the light
fixture fell because the mounting bracket failed to support its weight.
		Weiss brought several claims against the restaurant owners under premises-defect,
negligent-hiring, and products-liability theories, claiming that the restaurant owners failed to
(1) exercise ordinary care to reduce or eliminate the risk of harm posed by the light fixture,
(2) properly inspect the premises in order to discover the light fixture's unsafe condition, (3) employ
a competent contractor to design, build, and install the light fixture, and (4) produce, design, and
manufacture a safer alternative to the defective light fixture.  She also brought negligence claims
against Pinnacle, the general contractor; Frank Fox, who designed and constructed the light fixture;
and Tracy Williams ("Williams") d/b/a Williams Electric Company ("WEC"), the electrician who
she alleged had "participated in assembling and installing" the light fixture.  In addition, Weiss sued
the project architect, Patrick Ousey, d/b/a FAB Architecture, for breach of his professional duty of
care, and FanTec, Inc., the company that produced the mounting bracket used to hang the light
fixture, under a products-liability theory.
		Pinnacle and the restaurant owners both filed motions for traditional and no-evidence
summary judgment.  Pinnacle moved for summary judgment on the grounds that it did not design,
fabricate, or install the light fixture and that there was no evidence that it owed or breached any legal
duty to Weiss.  In their traditional summary-judgment motion, the restaurant owners argued that they
did not have a right to control and did not exercise control over the design of the failed mounting
bracket or the installation of the light fixture.  They further argued that Weiss could not prove that
they had notice of the defect or that they had failed to exercise reasonable care to eliminate the risk
posed by the bracket.  In their no-evidence motion, the restaurant owners asserted that Weiss had no
evidence to support any of the elements of her premises-liability claim. 
		After a hearing, the trial court granted Pinnacle's and the restaurant owners' motions
for summary judgment and severed Weiss's claims against those defendants.  These appeals
followed.

STANDARD OF REVIEW
		We review the trial court's summary-judgment rulings de novo.  Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003).  We will affirm the summary judgment if any ground presented
to the trial court is meritorious.  See Pickett v. Texas Mut. Ins. Co., 239 S.W.3d 826, 840
(Tex. App.--Austin 2007, no pet.).  
		When, as here, a party moves for summary judgment under both rule 166a(c) and rule
166a(i), we first review the trial court's summary judgment under the standards of rule 166a(i). 
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).  Under rule 166a(i), a movant must
assert that, after adequate time for discovery, there is no evidence of one or more essential elements
of a claim or defense on which an adverse party would have the burden of proof at trial. 
Tex. R. Civ. P. 166a(i); see Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99
(Tex. 2004).  To defeat a rule 166a(i) summary-judgment motion, the nonmovant must produce
summary-judgment evidence raising a genuine issue of material fact.  Tex. R. Civ. P. 166a(i);
Ford Motor Co., 135 S.W.3d at 600.  A genuine issue of material fact exists if the nonmovant
produces more than a scintilla of evidence establishing the existence of the challenged element. 
Ford Motor Co., 135 S.W.3d at 600.  More than a scintilla of supporting evidence exists if the
evidence would allow reasonable and fair-minded people to differ in their conclusions. 
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).  "Less than a scintilla of
evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or
suspicion' of a fact."  Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).  If
the non-movant fails to produce more than a scintilla of evidence under that burden, then there is no
need to analyze whether the movant's proof satisfied the rule 166a(c) burden.  Ford Motor Co.,
135 S.W.3d at 600. 

DISCUSSION

Pinnacle's Summary Judgment
		In her first issue, Weiss argues that the trial court erred in granting Pinnacle's motions
for summary judgment because there is a genuine issue of material fact as to whether Pinnacle or
WEC installed the light fixture.  In so arguing, Weiss relies on Williams's deposition testimony,
wherein he stated that he knew that WEC did not install the custom light fixtures because the
installation of custom fixtures was not within the scope of his work or included within his bid for
the project.  Williams also testified regarding a dispute between his on-site electrician, Joe Burlew,
and Pinnacle over WEC's refusal to install the custom fixtures because the fixtures were not
"code-compliant."  Williams testified, "And then I get involved and go out and settle it and tell them
we're not going to do it."  Asked if he knew who ultimately installed the custom light fixture in the
main dining room, Williams answered, "No, I do not."  According to Weiss, the only reasonable
inference that can be drawn from Williams's testimony is that Pinnacle must have installed the light
fixtures because Pinnacle, as the general contractor, was responsible for all aspects of the project,
including the electrical work.  In support of this claim, Weiss points to the affidavit of the architect,
Patrick Ousey, who averred that Pinnacle, "the general contractor, was to provide the remainder of
the design work on the project, including the mechanical, electrical and plumbing design
engineering" and that the restaurant owners had agreed to deliver the custom light fixtures to the
general contractor for installation.
		Pinnacle responds that while Williams's testimony might be some evidence that WEC
did not install the light fixture, the record is wholly devoid of any evidence that Pinnacle installed
it or controlled whoever did.  Pinnacle further urges that Ousey's statements are "conclusory" and
incompetent because they were not based on his personal knowledge, and are therefore not proper
summary-judgment proof.  Accordingly, Pinnacle argues that its no-evidence motion for summary
judgment should be affirmed on the basis that there was no evidence that it either owed or breached
a duty to Weiss and, therefore, no evidence that Pinnacle proximately caused Weiss's injuries. 
We agree.
		The law is well settled that a general contractor such as Pinnacle has no duty to ensure
that its independent contractors perform work in a safe manner.  See Fifth Club, Inc. v. Ramirez,
196 S.W.3d 788, 791 (Tex. 2006); Lee Lewis Constr., Inc. v. Harrison, 70 S.W. 3d 778, 783
(Tex. 2001); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).  Therefore, an employer
cannot be held vicariously liable for the actions of an independent contractor unless the employer
retains some control over the manner in which that contractor performs the work that causes the
damage.  Ramirez, 196 S.W.3d at 791; see Restatement (Second) of Torts § 414 (1977).  For the
general contractor to be vicariously liable, his control must rise to the level of directing how the work
is to be performed or directing the safety of the performance.  Ramirez, 196 S.W.3d at 791;
Redinger, 689 S.W.2d at 418.  A right of control requires more than "a general right to order the
work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or
recommendations which need not necessarily be followed, or to prescribe alterations and deviations." 
 Koch Ref. Co. v. Chapa,  11 S.W. 3d 153, 155 (Tex. 1999). "There must be such a retention of a
right of supervision that the contractor is not entirely free to do the work in his own way."  Id. 
		In order to overcome Pinnacle's no-evidence motion, Weiss had to produce more than
a scintilla of evidence that Pinnacle either installed the light fixture or exercised sufficient control
over its installation, thereby giving rise to a legal duty to Weiss.  Weiss did not produce any evidence
that Pinnacle actually performed the installation of the light fixture that caused her injuries.  Nor did
she bring forward any evidence that Pinnacle exercised a right of control over whoever did install
the fixture, let alone show that Pinnacle actually engaged another electrical contractor to perform the
installation.  Weiss's bare assertion that, upon WEC's refusal to install the fixtures, Pinnacle would
have had to hire someone else to do the work, and would have necessarily controlled that person's
performance is mere conjecture; it is not evidence that Pinnacle exercised the level of control
sufficient to give rise to a duty on the basis of vicarious liability.  See McMillin v. State Farm Lloyds,
180 S.W.3d 183, 207 (Tex. App.--Austin 2005, pet. denied) ("'[A] vital fact may not be established
by piling inference upon inference.'") (quoting Schlumberger Well Surveying Corp. v. Nortex Oil
& Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968)).  Because Weiss has not shown that the trial court
erred in granting Pinnacle's 166a(i) motion, we overrule her first issue.

The Restaurant Owners' Summary Judgment
		In Weiss's second issue, she argues that summary judgment should not have been
granted in favor of the restaurant owners because she raised a genuine issue of material fact
concerning whether the restaurant owners controlled whoever installed the light fixture.
		Much like a general contractor, "an owner or occupier of land does not owe any duty
to ensure that an independent contractor performs his work in a safe manner."  Hoechst-Celanese
Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (citing Abalos v. Oil Dev. Co., 544 S.W.2d 627,
631 (Tex. 1976)); see Williams v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).  "However, a duty may
arise where the employer retains 'some control over the manner in which the independent
contractor's work is performed.'" Mendez, 967 S.W.2d at 356 (quoting Redinger, 689 S.W.2d at
418).  Yet even where such a duty does arise, it is "commensurate with the control" that the owner
retains over the independent contractor's work.  General Elec. Co. v. Moritz, 257 S.W.3d 211, 214
(Tex. 2008).  Thus, it is not enough to show that the defendant controlled one aspect of the
independent contractor's activities if the injury arose from another.  Id.  Therefore, in order to
withstand the restaurant owners' no-evidence summary judgment, Weiss had to produce more than
a scintilla of evidence that the restaurant owners controlled the activity from which her injury
indisputably arose--the installation of the light fixture.  She failed to meet this burden.
		Even when considered in the light most favorable to Weiss, and resolving all
inferences in her favor, the evidence shows only that the restaurant owners exercised control over
the design and fabrication of the light fixtures.  Weiss's evidence on this point consists of Ousey's
affidavit, wherein he stated that the restaurant owners made the decision to use custom lights,
contacted Fox to assist in the design and assembly of the lights, approved the lighting design and
fixture prototype, authorized production of the light fixtures based on the prototype, and provided
the fabricated lights to the general contractor for installation.  As the restaurant owners point out, this
evidence would be closer to supporting Weiss's claims against them if, rather than the mounting
bracket, the light fixture itself had failed; it did not.  Because Weiss produced no evidence that the
restaurant owners had any control over the actual installation of the fixture, the trial court did not err
in granting the restaurant owners' motion for summary judgment under rule 166a(i).

CONCLUSION
		Having overruled Weiss's issues on appeal, we affirm the summary judgments in
favor of the appellees.
  
						J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Puryear and Henson
Affirmed
Filed:   March 27, 2009
