                                   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.,1 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


       1
      The Gilberts concede that summary judgment was proper as to Safety Signs
Management, L.L.C.

                                              2
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


                                               3
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


                                             4
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.2 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.3 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




       2
        For the limited purpose of reviewing this element of the Gilberts’ claim, we will
assume, without deciding, that the project’s traffic control posed an unreasonable risk at
the time of the accident.
       3
        The evidence presented in this case pertains to the knowledge that Gilvin-Terrill
constructively held through its employees. However, we have found no evidence of what
Safety Signs did or did not know. Therefore, we conclude that the Gilberts have presented
no evidence that Safety Signs had actual knowledge of the danger posed by the road
construction and, as a result, will affirm the trial court’s summary judgment as to Safety
Signs.

                                              5
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.




                                               6
       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.4 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.




       4
         We conclude that, if Loya had not made a habit of checking the traffic control at
the project on Sunday mornings, the more reasonable inference to draw from his presence
was that he had been notified of the accident rather than that he had been notified of the
dangerous condition of the traffic control.

                                               7
       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




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