
NO. 07-07-0206-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 12, 2008
                                       ______________________________

WILLIAM GILBERT AND DIANA GILBERT, APPELLANTS

V.

GILVIN-TERRILL, LTD., SAFETY SIGNS, LTD. AND
SAFETY SIGNS MANAGEMENT, L.L.C., APPELLEES
_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 93,164-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL, and HANCOCK, JJ.
MEMORANDUM OPINION
          Appellants, William and Diana Gilbert, appeal an order granting summary judgment
in favor of appellees, Gilvin-Terrill, Ltd., Safety Signs, Ltd., and Safety Signs Management,
L.L.C.  We affirm.
Background
          Jeffrey Doty, and appellant, William Gilbert (individually, “Gilbert”) worked together
as a trucking team for Covenant Transport Trucking Company.  At around 6:00 a.m. on
October 10, 2004, Doty and Gilbert were involved in an accident in which they ran into a
concrete barrier that had been placed in the right lane of the road as part of a road repair
project that appellee, Gilvin-Terrill, Ltd., was performing.  At the time of the accident, Doty
was driving the truck, while Gilbert was in the sleeping berth.  As a result of the accident,
Gilbert was thrown from the sleeping berth and injured his shoulder.
          Gilbert and his wife, Diana (collectively, “the Gilberts”), brought suit against
appellees to recover damages suffered as a result of this accident.  The Gilberts claimed
that appellees were liable under a premises liability theory because the lack of certain
traffic control devices at the scene of the accident constituted a breach of appellees’ duty
to warn Gilbert of a known hazard.  Gilvin-Terrill, the general contractor responsible for the
road repairs, Safety Signs, Ltd., the contractor responsible for implementing the traffic
control related to the road repair project, and Safety Signs Management, L.L.C.,
 filed a
motion for summary judgment on both traditional and no-evidence grounds.  The trial court
considered this motion, the Gilberts’ response, and appellees’ reply and entered summary
judgment in favor of appellees.  The trial court did not identify the specific grounds upon
which it based its summary judgment.
          The Gilberts appeal the summary judgment by six issues.  Among these issues is
a general challenge to the trial court’s grant of summary judgment that allows appellate
review of all possible grounds for the summary judgment.  See Malooly Bros., Inc. v.
Napier, 461 S.W.2d 119, 121 (Tex. 1970).  However, the Gilberts also specifically
challenge summary judgment being based on certain contested grounds.  Finally, the
Gilberts challenge the summary judgment being based on the affirmative defense found
in Texas Civil Practice and Remedies Code section 97.002.  See Tex. Civ. Prac. & Rem.
Code Ann. § 97.002 (Vernon 2005) (limiting liability of certain highway, road, and street
contractors based on compliance with contract).
Standard of Review
          Where, as in the present case, the trial court does not specify the grounds upon
which it granted summary judgment, the appellate court must affirm on any meritorious
ground that was presented.  Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).  Summary
judgments under Texas Rule of Civil Procedure 166a(c) and (i) are reviewed de novo.  See
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).  Any evidence
presented by the motion for summary judgment or response is viewed in the light most
favorable to the nonmovant, giving credit to the evidence that favors the nonmovant if
reasonable jurors could and disregarding contrary evidence unless reasonable jurors could
not.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  Summary judgment
is not intended to provide a trial by deposition or affidavit, but is intended rather to provide
a method to summarily terminate a case when it clearly appears that only a question of law
is involved and that there is no genuine issue of material fact.  Gaines v. Hamman, 163
Tex. 618, 358 S.W.2d 557, 563 (1962).
          A no-evidence summary judgment is essentially a pre-trial directed verdict.  Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  A no-evidence summary
judgment is improperly granted if the nonmovant brings forth more than a scintilla of
probative evidence to raise a genuine issue of material fact.  King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003).  It is less than a scintilla of evidence when the evidence
is so weak as to do no more than create a mere surmise or suspicion of a fact.  Id. (citing
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
          In a traditional motion for summary judgment, the moving party bears the burden to
show that no genuine issue of material fact exists and that it is entitled to judgment as a
matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  
Premises Liability
          The Gilberts brought suit against appellees as a premises liability claim.  To prevail
in their claim, the Gilberts must prove:
(1) the plaintiff was a licensee;
(2) the defendant was the owner or possessor of the premises;
(3) a condition on the premises posed an unreasonable risk of harm;
(4) the defendant had actual knowledge of the danger;
(5) the plaintiff did not have actual knowledge of the danger;
(6) the defendant breached its duty of ordinary care by both:
(a)  failing to adequately warn plaintiff of the condition, and
(b) failing to make the condition reasonably safe; and
(7) the defendant’s breach proximately caused the plaintiff’s injuries.
Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003); County of Cameron v.
Brown, 80 S.W.3d 549, 554 (Tex. 2002).  Because the trial court did not specify the
grounds upon which it granted summary judgment, we must affirm on any meritorious
ground that was presented.  Carr, 776 S.W.2d at 569.  Because we conclude that the
Gilberts failed to present at least a scintilla of evidence to establish that the appellees had
actual knowledge of the danger at the time of the accident, we need not review any other
summary judgment ground advanced by appellees.
Actual Knowledge
          Gilvin-Terrill and Safety Signs challenged the Gilberts’ premises liability claim on the
basis that the Gilberts could produce no evidence that the appellees had actual knowledge
that the construction project’s traffic control posed an unreasonable risk.  The actual
knowledge element of a premises liability claim requires proof that the defendant had
actual knowledge of the danger at the time of the accident.
 See City of Dallas v.
Thompson, 210 S.W.3d 601, 603 (Tex. 2006).  The Gilberts cite this Court to evidence
which they contend establishes that Gilvin-Terrill knew of the danger.
  However, even
accepting the evidence that supports the Gilberts’ claims as true and indulging every
reasonable inference in favor of the Gilberts, we conclude that there was no evidence
presented that Gilvin-Terrill had actual knowledge that the traffic control at the project
posed an unreasonable risk of danger at the time of the accident.  
          The Gilberts cite the deposition testimony of Jeffrey Doty, the driver of the truck at
the time of the accident.  Doty testified that, after the accident, he spoke with an
unidentified highway patrol trooper who informed Doty that he would not receive a citation
for the accident because there had been a report made to the sheriff’s office that barrels
were missing from the project’s site.  However, nothing in this testimony indicates when this
report was made to the sheriff’s office and, more significantly, this testimony does not
provide any basis to conclude that Gilvin-Terrill received any report that the traffic control
was in a dangerous condition. 
          The Gilberts cite the deposition testimony of Raymond D. Martinez, Jr., inspector
for the Texas Department of Transportation, to establish that there had been prior
problems with traffic control at the site of this project.  However, while Martinez did testify
that there had been traffic control problems at the site in April of 2004, he also testified that
he had reported that the traffic control “looked good” at around 4:00 p.m. on October 9,
2004, which would be a mere 14 hours before the instant accident.  The Gilberts cite
Martinez’s testimony that Gilvin-Terrill employees had previously been slow to respond to
his calls concerning problems with traffic control at the site.  However, there is no evidence
that Martinez ever identified, let alone reported, a problem with traffic control at the
project’s site at the time of the accident in the present case.
          The Gilberts contend that circumstances indicate that Gilvin-Terrill had been
informed of the danger posed by the traffic control at the site immediately prior to the
accident.  The Gilberts contend that knowledge that the traffic control was in a dangerous
condition can be inferred from Jose Loya, Gilvin-Terrill’s project supervisor for this project,
arriving at the scene of the accident on a Sunday morning when he was not scheduled to
work.
  However, the inference that the Gilberts attempt to draw from this evidence is
belied by the testimony of Loya that he “got up early every Sunday and would just go check
the job, just drive over there.”  Further, Loya testified that he personally drove from one end
of the job site to the other to ensure that the traffic control was in place at around 5:00 or
6:00 p.m. on October 9, 2004.   
          Finally, the Gilberts cite the deposition testimony of Willie Quintero, the Gilvin-Terrill
employee charged with the responsibility of checking the traffic control on days that work
was not being performed, as establishing that Gilvin-Terrill had actual knowledge that the
traffic control posed an unreasonable danger.  The Gilberts cite Quintero’s testimony that,
when he arrived at the project site on Sunday morning, there were many cones and barrels
missing or knocked over.  However, Quintero testified that, when he arrived at the scene,
the accident had already occurred and that the many cones and barrels that were strewn
around the site were in the vicinity of the accident.  
          Considering all of this evidence in the manner most favorable to the Gilberts, the
evidence indicates that Gilvin-Terrill knew that the traffic control was in place and not
posing an unreasonable danger at approximately 5:00 p.m. on October 9, 2004.  Even
assuming that the traffic control devices had been removed or damaged between 5:00 p.m.
on the 9th and 6:00 a.m. on the 10th, the Gilberts offered no evidence that Gilvin-Terrill
actually knew of the resulting dangerous condition.  As a result, we conclude that the
Gilberts presented no evidence that Gilvin-Terrill had actual knowledge that the
construction project’s traffic control posed an unreasonable risk.  Because the lack of
evidence of this element of the Gilberts’ claim is sufficient to support the trial court’s grant
of summary judgment, we must affirm the trial court’s judgment.  Carr, 776 S.W.2d at 569.
Conclusion
          We affirm the judgment of the trial court.
 
 
                                                                                      Mackey K. Hancock
                                                                                                Justice


