                            NUMBER 13-11-00585-CV

                            COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

ROBERT ZISSA JR.,                                                      Appellant,

                                         v.

EUTON’S HARLEY DAVIDSON,                                                Appellee.


                     On appeal from the 135th District Court
                           of Victoria County, Texas.


                         MEMORANDUM OPINION
              Before Justices Rodriguez, Benavides, and Perkes
                 Memorandum Opinion by Justice Benavides
          By two issues, appellant, Robert Zissa Jr., appeals two adverse summary

judgment rulings—one from a motion for traditional summary judgment and the other on

no-evidence grounds—in favor of appellee Euton’s Harley Davidson, Inc. (“EHD”). We

affirm.
                                     I.     BACKGROUND

       On July 5, 2006, Zissa test-drove an EHD customer’s motorcycle through the

streets of Victoria, Texas when he ran a stop sign and collided with a 2002 GMC Yukon

sports utility vehicle.   At the time of the accident, Zissa was employed by EHD as a

motorcycle technician and was acting in the course and scope of his employment.

Zissa sustained serious bodily injuries including the loss of his right leg.                  Zissa

estimated his medical bills related to the accident to be approximately $600,000.

       Zissa sued EHD, which was a non-subscriber under the Texas Workers’

Compensation Act and thus potentially responsible for work-related injuries under the

common-law principles of negligence.          TEX. LABOR CODE ANN. § 406.033 (West Supp.

2011). In his petition, Zissa alleged that EHD was negligent in:             (1) failing to instruct

employees on how to safely operate motorcycles; (2) failing to implement procedures to

ensure employees would operate motorcycles safely; (3) ordering Zissa to test-drive a

motorcycle without basic safety training; (4) ordering Zissa to test-drive a motorcycle

when he was trained as a motorcycle technician and not a test-driver; (5) placing the task

of test-driving motorcycles into Zissa’s job requirements without any training; and (6)

failing to provide a safe place to test-drive motorcycles.       Additionally, Zissa sued Harley

Davidson Motor Company, Inc. and Harley Davidson, Inc. for negligence, as well as Tim

and Dawn Euton, as owners of EHD, for conversion of proceeds collected for Zissa.1

       EHD and the Eutons moved for traditional and no-evidence summary judgment on

all of Zissa’s claims. The trial court granted both motions and rendered a judgment that

disposed of Zissa’s claims. This appeal ensued solely as to Zissa’s claims against

       1
           Harley Davidson Motor Company, Inc., Harley Davidson, Inc., and Tim and Dawn Euton are not
parties to this appeal.

                                                 2
EHD.

                                   II.     DISCUSSION

A.     Traditional Motion for Summary Judgment

       By his first issue, Zissa asserts that the trial court’s ruling on EHD’s traditional

motion for summary judgment was improper.

1.     Standard of Review

       A party against whom a claim is asserted may, at any time, move for a summary

judgment in its favor as to all or any part of the asserted claim.   TEX. R. CIV. P. 166a(b).

We review the trial court’s grant or denial of a summary judgment de novo.          Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Armstrong v. Hixon, 206 S.W.3d 175,

180 (Tex. App.—Corpus Christi 2006, pet. denied). In our review, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.       Knott, 128 S.W.3d at 215; Armstrong,

164 S.W.3d at 661.    The movant bears the burden of showing that there is not genuine

issue of material fact and that it is entitled to judgment as a matter of law on the issues

expressly set out in the motion.     TEX. R. CIV. P. 166a(c); Knott, 128 S.W.3d at 216;

Armstrong, 206 S.W.3d at 180.      If a trial court’s order does not specify in its summary

judgment order which ground it found meritorious, we must affirm the summary judgment

if any of the theories presented to the trial court and preserved on appeal are

meritorious.   Knott, 128 S.W.3d at 216.

2.     Discussion




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       In order to establish a negligence cause of action, a plaintiff must establish: (1) a

legal duty; (2) breach of that duty; and (3) damages proximately resulting from the

breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).           EHD argues that it

(1) had no legal duty to Zissa at the time of the accident, (2) but even if EHD owed a

legal duty to Zissa, the breach of said duty was not the proximate cause of Zissa’s

injuries.   The gravamen of Zissa’s complaints is that EHD had a duty to provide a safe

workplace by: (1) instructing Zissa on safely riding a motorcycle while simultaneously

diagnosing mechanical problems; (2) implementing safety procedures to ensure that

employees safely test-drove motorcycles; and (3) providing a safe area to test-drive

motorcycles.    Specifically, EHD argues that the issue of duty in this case is controlled by

well-established principles in Texas law.

       Generally, an employer has a duty to use ordinary care in providing a safe

workplace.     Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).       For

example, an employer must warn an employee of the hazards of employment and

provide needed safety equipment or assistance.       Id.   However, an employer is not an

insurer of its employee’s safety.    Id.; Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.

1996). The employer owes no duty to warn of hazards that are commonly known or

already appreciated by the employee.          Elwood, 197 S.W.3d at 794 (citing Nat’l

Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th

Dist.] 1999, no pet.)). Additionally, when an employee’s injury results from performing

the same character of work that employees in that position have always done, an

employer is not liable if there is no evidence that the work is unusually precarious.

Elwood, 197 S.W.3d at 765; Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995).


                                             4
Finally, the age and experience of the employee should be considered in measuring the

duty of the employer.     See Allen v. A&T Transp. Co., Inc., 79 S.W.3d 65, 70 (Tex.

App.—Texarkana 2002, pet. denied). The existence of a duty is a threshold question of

law, and without a legal duty, our inquiry into whether negligence liability may be

imposed ends.      See Van Horn, 970 S.W.2d at 544.

       The evidence in the record shows that Zissa was an experienced motorcycle

rider. Based on his own testimony, Zissa had been riding motorcycles for sixteen years

prior to this accident. Tim Euton testified by affidavit that he had ridden “thousands of

miles” alongside Zissa and never knew him to drive recklessly, disregard a stop sign, or

fail to yield the right of way.   Euton also testified that Zissa was previously prohibited

from test-driving motorcycles until he exhibited the skills and qualifications necessary for

the work, but Zissa had been test-driving motorcycles for approximately two years prior

to the accident.   EHD allowed Zissa to test-drive motorcycles because he had exhibited

the skills and qualifications necessary to do so.   According to the record, Zissa testified

to test-driving motorcycles approximately seven to ten times a week over three years.

Zissa admitted that the underlying accident was the only accident he experienced over

the three years.     In addition to Zissa, Euton and one other employee test-drove

motorcycles.

       Zissa argues that EHD owed a duty to instruct him on how to safely test-drive

motorcycles while diagnosing them for mechanical problems. We disagree. EHD’s

duty to instruct applies only to inexperienced riders, which Zissa was not.       See Nat’l

Convenience Stores Inc., 987 S.W.2d at 149 (citing W.E. Grace Mfg. Co. v. Arp, 311

S.W.2d 278, 281 (Tex. Civ. App.—Dallas 1958, writ ref’d n.r.e.)). Undisputed testimony


                                              5
shows that Zissa was not allowed to test-drive motorcycles until he exhibited the skills

and qualifications necessary for the job.       By Zissa’s own admission, he test-drove

motorcycles seven to ten times a week for three years without incident. Therefore, we

conclude that EHD’s duty to instruct did not apply to Zissa.

       Next, Zissa argues that EHD owed a duty to implement safety rules for test-driving

motorcycles while diagnosing mechanical issues.         However, an employer does not

have a duty to implement safety rules where its business is neither complex nor

hazardous or where the dangers incident to the work are obvious or of common

knowledge and fully understood by the employee.         Allen, 79 S.W.3d at 70.      Zissa’s

responsibilities as an EHD employee of test-driving a motorcycle while diagnosing

mechanical issues was neither complex nor hazardous in light of Zissa’s own testimony

that he had test-driven motorcycles weekly for three years prior to this accident.    Even

assuming arguendo that test-driving a motorcycle to diagnose mechanical issues was

complex or hazardous, ignoring traffic signals implicate the type of hazard that is

commonly known and appreciated by a motorcycle technician who test-drives

motorcycles.    See Elwood, 197 S.W.3d at 794; Matherne, 987 S.W.2d at 149.

Therefore, we conclude EHD did not have a duty to implement safety rules in this case.

For the same reasons, Zissa’s final argument—that EHD had a duty to provide an

alternate place to test-drive the motorcycles—fails because the dangers of failing to

follow traffic laws are obvious or of common knowledge.

       Under the facts of this case, we conclude that (1) EHD did not owe a duty to Zissa

as a matter of law; (2) without establishing a duty, Zissa’s cause of action for negligence

against EHD fails, see Chambers, 970 S.W.2d at 544; and (3) the trial court did not err in


                                            6
its ruling on EHD’s motion for traditional summary judgment.2 Zissa’s first issue is

overruled.    Furthermore, because we hold that Zissa’s negligence action cannot stand,

we need not address his remaining issue on appeal regarding EHD’s no-evidence

motion for summary judgment.          See TEX. R. APP. P. 47.1.

                                      III.    CONCLUSION

       We affirm the trial court’s judgment.



                                                                __________________________
                                                                GINA M. BENAVIDES,
                                                                Justice


Delivered and filed the
13th day of December, 2012.




       2
         We recognize that today’s opinion renders an arguably harsh result. In light of this, we note
recent Texas Supreme Court decisions, which have stressed and reiterated the mutual benefit for
employers and employees under the Texas Workers’ Compensation Act:

               The Texas Workers’ Compensation Act was adopted to provide prompt
       remuneration to employees who sustain injuries in the course and scope of their
       employment.... The act relieves employees of the burden of proving their employer's
       negligence, and instead provides timely compensation for injuries sustained on-the-job....
       In exchange for this prompt recovery, the act prohibits an employee from seeking
       common-law remedies from his employer, as well as his employer's agents, servants, and
       employees, for personal injuries sustained in the course and scope of his employment.

See HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 358 (Tex. 2009); see also Tex. Mut. Ins. Co. v. Ruttiger,
__S.W.3d__, 2012 WL 2361697, at *8 (Tex. June 22, 2012) (recognizing that the Texas Workers’
Compensation Act’s mutually beneficial purpose is shared by injured employees and their employers).

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