Affirmed and Memorandum Opinion filed December 13, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00898-CV

                          JOSE ALONSO, Appellant

                                        V.
 WESTIN HOMES CORPORATION, WESTIN HOMES OF TEXAS, LTD.,
      AND WESTIN HOMES AND PROPERTIES, L.P., Appellees

                   On Appeal from the 234th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-72434

                 MEMORANDUM OPINION

      In this premises liability case, a subcontractor’s employee was injured while
working on the property owner’s jobsite. The employee sued the property owner,
alleging various theories of negligence. The property owner moved for summary
judgment, inter alia, under Chapter 95 of the Texas Civil Practice & Remedies
Code. The trial court granted the property owner’s summary judgment motion.
On appeal, the subcontractor’s employee urges that summary judgment was
improper because he provided evidence sufficient to raise a material fact issue on
the Chapter 95 requirements that, to be liable for a premises liability claim, a
property owner must retain some control over the manner in which the work is
performed and have actual knowledge of the dangerous condition that caused the
injury.1

      Because we conclude that there is no genuine issue of material fact on the
property owner’s lack of actual knowledge of the dangerous condition, we affirm.

                                         Background

      Jose Alonso worked as a framer on new home construction sites owned by
Westin Homes Corporation, Westin Homes of Texas, Ltd., and Westin Homes and
Properties, L.P. (collectively, Westin) when he fell and injured his arm.       He
worked directly for a framing subcontractor, Saul Cabrera, who in turn worked for
Westin’s framing contractor, Eduardo Carrizalez.           Cabrera had no written
agreement with either Westin or Carrizalez.            Carrizalez operated under an
“Independent Contractor’s Agreement” with Westin. When the incident occurred,
Alonso and his co-workers were short of appropriate materials, so they were
“piecing together a puzzle” of plywood to form the flooring for the second level of
a home. Alonso stepped on a weak spot in the flooring, which broke and caused
him to fall. Alonso had been using a circular saw; the saw had been modified by
Cabrera to prevent the safety cover on the blade from engaging. When Alonso fell,
he had the saw in his hand and attempted to toss it away, but accidentally engaged
the saw so that the blade was spinning when it fell. Alsonso landed on the saw and
sliced his arm on the blade. He suffered a severe laceration and nerve damage
from the incident.

      As is relevant here, Alonso sued Westin for damages resulting from its
alleged negligence per se, gross negligence, negligence, and premises liability.2

      1
           See Tex. Civ. Prac. & Rem. Code § 95.003.

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Westin filed a combined traditional and no-evidence motion for summary
judgment. In it, Westin urged that (1) there was no evidence of negligence per se
and gross negligence; (2) Westin exercised no control over the manner of work and
had no actual knowledge of the dangerous condition that caused Alonso’s injury,
as required under Chapter 95 for a premises liability case; and (3) Westin had no
duty to Alonso. Alonso responded to Westin’s motion, asserting various facts that
he contended showed that Westin exercised control, had actual knowledge, and
owed him a duty. Alonso did not respond to Westin’s no-evidence points.

       The trial court granted Westin’s motion for summary judgment, which later
became final when the other claims in the suit were resolved. This appeal timely
followed.

                                            Analysis

       In a single issue, Alonso asserts that the trial court “abused its discretion” in
granting summary judgment in favor of Westin pursuant to Chapter 95 of the
Texas Civil Practice & Remedies Code.3 We begin by laying out the appropriate
standard of review for this summary judgment case.

       A. Standard of Review

       We review summary judgments de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Movants for a
traditional summary judgment, such as Westin, must show that there is no genuine


       2
         Alonso also included Carrizalez and Cabrera in his lawsuit; Alonso took a default
judgment against Cabrera and settled his case against Carrizalez. Thus, the only parties to this
appeal are Alonso and Westin.
       3
         Alonso has apparently abandoned his general negligence claim on appeal, restricting his
argument to Chapter 95. At any rate, if Chapter 95 applies, as the parties agree it does here, it is
the plaintiff’s “sole means of recovery.” Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex.
2015).

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issue of material fact and that they are entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848. A defendant such as
Westin is entitled to summary judgment if the evidence conclusively negates at
least one essential element of each of Alonso’s causes of action. See Little v. Tex.
Dep’t of Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004). If the defendant—
Westin—establishes its right to summary judgment as a matter of law, the burden
shifts to the plaintiff—Alonso—to present evidence raising an issue of fact.
Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (quoting Walker v. Harris,
924 S.W.2d 375, 377 (Tex. 1996)). We review the evidence in the light most
favorable to the nonmovant, Alonso, crediting evidence favorable to Alonso if
reasonable jurors could and disregarding contrary evidence unless reasonable
jurors could not. See Mann Frankfort, 289 S.W.3d at 848.

      With this standard in mind, we turn to the law governing this case.

      B. Texas Civil Practice & Remedies Code Chapter 95

      The parties do not dispute that Chapter 95 of the Civil Practice & Remedies
Code governs this dispute, as it applies to claims against a property owner for
personal injury to a subcontractor’s employee that arise from the condition or use
of an improvement to real property when the subcontractor’s employee constructs
the improvement. See Tex. Civ. Prac. & Rem. Code § 95.002. This chapter
contains the following limitation on liability:

      A property owner is not liable for personal injury, death, or property
      damage to a contractor, subcontractor or an employee of a contractor
      or subcontractor who constructs, repairs, renovates, or modifies an
      improvement to real property, including personal injury, death, or
      property damage arising from the failure to provide a safe workplace
      unless:
      (1) the property owner exercises or maintains some control over the
          manner in which the work is performed, other than the right to

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            order the work to start or stop or to inspect progress or receive
            reports; and
      (2) the property owner had actual knowledge of the danger or
          condition resulting in the personal injury, death, or property
          damage and failed to adequately warn.
Id. § 95.003. Both subsection 95.003(1)’s control requirement and subsection
95.003(2)’s actual knowledge requirement must be met before liability will be
imposed on the property owner.         Oiltanking Houston, L.P. v. Delgado, —
S.W.3d—, No. 14-14-00158-CV, 2016 WL 4145997, at *5 (Tex. App.—Houston
[14th Dist.] Aug. 4, 2016, pet. filed) (op. on reh’g) (citing Dyall v. Simpson
Pasadena Paper Co., 152 S.W.3d 588, 699 n.15 (Tex. App.—Houston [14th Dist.]
2004, pet. denied) (en banc)). And subsection 95.003(2) requires that a plaintiff
prove the owner had actual knowledge of a dangerous condition on the premises—
not merely constructive knowledge. Id. (citing Ellwood Tex. Forge Corp. v. Jones,
214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) and
Dyall, 152 S.W.3d at 699).

      Bearing in mind the standard of review and governing law, we next
determine whether Alonso raised a fact issue on the element of actual knowledge.
See Oiltanking Houston, 2016 WL 4145997, at *12 (“Having concluded there is no
evidence of actual knowledge, we need not address section 95.003(1)’s control
prong.”).

      C. Westin Had No Actual Knowledge of the Dangerous Conditions
      Alonso identifies the “dangerous conditions” on the Westin jobsite as
including “the lack of sufficient materials, the unsafe pace in which the workers,
including [Alonso], were required to work, and the manner in which the electric
saws at the premises were utilized and secured.” To support his claim that Westin



                                          5
had actual knowledge of these dangerous conditions, Alonso points to the
following:

    Westin’s construction manager, Matt Rizvan, was present at the jobsite
      “daily”;

    Westin “required” Alonso to “piece together flooring from discarded
      material gathered from scraps”;

    Alonso had to “rush to finish the framing project so that other crews could
      come in sooner”; and

    Alonso used a saw that had been modified to impair the safety mechanism.

After reviewing the record, we conclude that, at most, Alonso’s evidence
demonstrates constructive, not actual, knowledge of the allegedly dangerous
conditions at the jobsite.

      First, Alonso’s testimony that Rizvan was present on the jobsite “daily”
supports only an inference that Rizvan saw how Alonso and his co-workers were
piecing together the flooring, which, in turn, could be potentially dangerous.
Indeed, Alonso’s deposition testimony confirms that one can only infer that Rizvan
even saw the state of the floor Alonso was working on: Alonso stated Rizvan “had
to have seen” how they were piecing together the flooring because Rizvan was on
the first floor of the house “looking up there where” Alonso and his co-workers
were completing the flooring shortly before the accident occurred.         However,
Alonso acknowledged that Rizvan was not there when the accident occurred; thus,
at most, Rizvan may have seen Alonso and his co-workers piecing together the
floor and may have been aware that such activity was potentially dangerous. But
“knowledge that an activity is potentially dangerous is not sufficient to satisfy the

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second prong of Section 95.003—actual knowledge of the danger is required.”
Dyall, 152 S.W.3d at 709 n.18.

      Next, regarding Westin’s “requirement” that Alonso and his co-workers use
scrap materials to complete piecing together the flooring, the record again supports
only an inference that Westin was aware that the employees on this jobsite were
piecing together the flooring.      Alonso admitted in his deposition that he
complained about the lack of materials only to Cabrera.                 Alonso also
acknowledged that he never directly informed anyone from Westin that more
framing material was needed on the site because he never spoke directly to a
Westin representative. And although Alonso testified that he overheard Rizvan
being told on the day of the accident that the workers did not have enough material
to complete the framing job, there is no evidence from which to infer that Rizvan
or any other Westin representative instructed them to construct the floor with scrap
material.

      Instead, Alonso stated that Westin’s general practice was to order the
framing materials for the jobsite. Alonso testified, in general, that if Westin didn’t
order enough, Westin did “not want to order or get some more.” Alonso explained
that Westin did not want to make small deliveries and, in the past, had asked the
workers to “finish it as you can and complete the job.” But this testimony is not
evidence that Westin “required” Alonso and his co-workers to use scrap material
on the day of the accident. Rather, it is only evidence that Westin may have been
aware that Alonso and his co-workers were engaging in an activity that potentially
could be dangerous. See id.; see also Bishop v. Nabisco, Inc., No. 14-03-00639-
CV, 2004 WL 832916, at *3–4 (Tex. App.—Houston [14th Dist.] Apr. 20, 2004,
no pet.) (mem. op.) (affirming summary judgment where (1) independent
contractor employed by Nabisco was directed by Nabisco to cover holes created

                                          7
during contractor’s work, (2) contractor constructed wooden covers without
instructions on how to build covers but with materials provided by Nabisco, and
(3) contractor’s employee fell through one of the covers; there was no evidence
that Nabisco actually knew particular cover had been damaged even though
Nabisco employees acknowledged damage to covers was possible).

      Third, Westin’s expectation that the work be finished timely so other crews
could perform their work may have pressured Alonso and his co-workers to work
more quickly than they would have liked. But the expectation that the framing
work be completed quickly was only expressed to Alonso by Cabrera; no one from
Westin ever told Alonso to speed up his work.         And this expectation hardly
establishes that Westin was actually aware that Alonso and his co-workers were
rushing their work and thereby engaging in potentially dangerous activity.
Alonso’s testimony that Westin expected the work to be finished in a short time-
frame is simply not evidence that Westin actually knew that, on the day that
Alonso was injured, he was working in an unsafe, hurried fashion. See City of
Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008) (“Actual knowledge
requires knowledge that the dangerous condition existed at the time of the accident,
as opposed to constructive knowledge which can be established by facts or
inferences that a dangerous condition could develop over time.”).

      Finally, Alonso presented no evidence that any of Westin’s representatives
noticed the unsafe, modified saws. Rather, Alonso testified that Cabrera modified
and provided the saws. Perhaps Westin should have known that these saws were
unsafe. But Chapter 95 requires actual knowledge of a dangerous condition, not
constructive knowledge, i.e., what a person “should have known.” See Ineos USA
v. Elmgren, —S.W.3d—, No. 14-0507, 2016 WL 3382144 at *2 (Tex. June 17,
2016) (“When Chapter 95 applies, . . . it grants the property owner additional

                                         8
protection by requiring the plaintiff to prove that the owner ‘had actual knowledge
of the danger or condition,’ so the owner is not liable based merely on what it
reasonably should have known.”).

       In sum, none of the record evidence permits even an inference that Westin
had actual knowledge of the dangerous conditions that Alonso has identified. As
discussed above, at most, Alonso’s evidence establishes that Westin had
constructive knowledge of these conditions. And Chapter 95 requires more than
constructive knowledge—it explicitly requires actual knowledge. Tex. Civ. Prac.
& Rem. Code § 95.003(2).              Because both subsection 95.003(1)’s control
requirement and subsection 95.003(2)’s actual knowledge requirement must be met
before liability will be imposed on the property owner,4 Alonso’s failure to raise a
fact issue concerning actual knowledge requires us to overrule his issue.

                                        Conclusion

       Having overruled Alonso’s single appellate issue, we affirm the trial court’s
judgment.


                                           /s/       Sharon McCally
                                                     Justice




Panel consists of Justices Christopher, McCally, and Brown.




       4
          See Oiltanking Houston, 2016 WL 4145997, at *5, *12 (reversing jury verdict in favor
of plaintiff because there was no evidence defendant had actual knowledge, without addressing
subsection 95.003(1)’s control requirement).

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