                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-15-00537-CV

                                       Joshua KALINCHUK,
                                             Appellant

                                                 v.

                              JP SANCHEZ CONSTRUCTION CO.,
                                         Appellee

                   From the 83rd Judicial District Court, Val Verde County, Texas
                                       Trial Court No. 30733
                            Honorable Robert Cadena, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 17, 2016

AFFIRMED

           In this personal injury case, appellant Joshua Kalinchuk appeals a summary judgment in

favor of appellee JP Sanchez Construction Co. (“Sanchez Construction”). On appeal, Kalinchuk

argues the trial court erred in granting summary judgment because he raised genuine issues of

material fact on each of the elements of his negligence and gross negligence claims. Because we

hold Sanchez Construction did not owe a legal duty to Kalinchuk, we affirm the trial court’s

judgment.
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                                         BACKGROUND

       The City of Del Rio (“the City”) hired Sanchez Construction to renovate a local baseball

field. During the renovation, the City asked Sanchez Construction to move bleachers that were

located inside the baseball field. Two Sanchez Construction employees, Jesse Paul Sanchez II and

Pablo Jesus Sanchez, moved the bleachers using a forklift, moving large sections at a time. The

men moved the bleachers to a grassy area outside the baseball field, and sometime thereafter,

Kalinchuk, a welder employed by the City, was instructed by the City to break down the bleachers

into smaller sections. While working, the bleachers fell on Kalinchuk, injuring his back and legs.

He subsequently filed suit against Sanchez Construction, claiming negligence and gross

negligence. Specifically, Kalinchuk claimed Sanchez Construction was negligent and grossly

negligent because it failed to take adequate precautions to ensure his safety when moving the

bleachers.

       Ultimately, Sanchez Construction moved for traditional and no-evidence summary

judgment. In its traditional motion, Sanchez Construction argued it owed no duty to Kalinchuk as

a matter of law because it was not Kalinchuk’s employer, it did not exercise control over

Kalinchuk, and Kalinchuk’s injury was not reasonably foreseeable. In its no-evidence motion,

Sanchez Construction argued that Kalinchuk failed to produce more than a scintilla of evidence

establishing (1) the existence of a legal duty, (2) the breach of any such duty, or (3) the alleged

breach proximately caused Kalinchuk’s injuries. Subsequently, Kalinchuk filed a response,

contending summary judgment was improper because Sanchez Construction failed to prove its

entitlement to judgment as a matter of law and his summary judgment evidence raises a fact issue

as to each element of his negligence and gross negligence claims. Attachments to Kalinchuk’s

summary judgment response included depositions from Kalinchuk, four Sanchez Construction

employees, including Jesse and Pablo, and Kalinchuk’s supervisor, Baudel Lopez.              After
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considering the motions and attached evidence, the trial court granted summary judgment, both

the traditional and no-evidence, in favor of Sanchez Construction without stating the basis for its

ruling. Thereafter, Kalinchuk perfected this appeal.

                                            ANALYSIS

       On appeal, Kalinchuk argues the trial court erred in granting Sanchez Construction’s

motions for summary judgment because genuine issues of material fact exist as to each element of

his negligence and gross negligence claims. Sanchez Construction counters, arguing the trial court

did not err in granting summary judgment in its favor because it did not owe a duty to Kalinchuk

as a matter of law, and Kalinchuk failed to produce more than a scintilla of evidence establishing

all of the elements of his claims.

                                       Standard of Review

       We review a trial court’s grant of summary judgment, both traditional and no evidence, de

novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Strandberg v.

Spectrum Office Bldg., 293 S.W.3d 736, 738 (Tex. App.—San Antonio 2009, no pet.). When a

party submits both a traditional and no evidence summary judgment motion, we review the no

evidence motion first. Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004). We review

the no evidence motion first because if the non-movant fails to meet its burden to produce more

than a scintilla of evidence as to any challenged element, then we need not analyze whether the

movant satisfied its burden to prove its entitlement to judgment as a matter of law by producing

evidence of same. Id.

       A no evidence motion for summary judgment is essentially a motion for a pretrial directed

verdict; therefore, we apply the same legal sufficiency standard when reviewing a no evidence

summary judgment as we apply when reviewing a directed verdict. See TEX. R. CIV. P. 166a(i);

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Moore v. K Mart Corp., 981
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S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). We review the evidence in the

light most favorable to the nonmovant, “crediting evidence favorable to [the nonmovant] if

reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); King

Ranch, 118 S.W.3d at 751. If the nonmovant produces more than a scintilla of evidence that raises

a genuine issue of material fact, then summary judgment is not proper. All Am. Tel., Inc. v. USLD

Commc’ns, 291 S.W.3d 518, 526 (Tex. App.—Fort Worth 2009, pet. denied). “More than a

scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to

reach different conclusions.” Id. (citing Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008);

Ford Motor Co., 135 S.W.3d at 601).

       A traditional motion for summary judgment is granted only when the movant establishes

there are no genuine issues of material fact and the movant is entitled to judgment as a matter of

law. Lesieur v. Fryar, 325 S.W.3d 242, 246 (Tex. App.—San Antonio 2010, pet. denied) (citing

Browning v. Prostok, 165 S.W.3d 336, 244 (Tex. 2005)). On review, we take evidence favorable

to the nonmovant as true and indulge every reasonable inference from the evidence in its favor.

Id. (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)). In deciding whether

there is a material fact issue precluding summary judgment, all conflicts in the evidence are

disregarded and evidence favorable to the nonmovant is accepted as true. Cole v. Johnson, 157

S.W.3d 856, 859 (Tex. App.—Fort Worth 2005, no pet.) (citing Harwell v. State Farm Mut. Auto.

Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995)).

                           Applicable Law – Existence of Legal Duty

       We begin our discussion by analyzing whether a legal duty existed. Negligence and gross

negligence are inextricably intertwined causes of action. Gonzalez v. VATR Const., LLC, 418

S.W.3d 777, 789 (Tex. App.—Dallas 2013, no pet.) (citing Ford Motor Co., 967 S.W.2d at 390).
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                                                                                       04-15-00537-CV


In general, to prevail on a cause of action for negligence, a plaintiff must prove three essential

elements: “the existence of a legal duty, a breach of that duty, and damages proximately caused by

the breach.” IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798

(Tex. 2004). Gross negligence requires a finding of negligence along with two additional

elements: (1) the negligent act or omission must involve an extreme degree of risk, and (2) the

actor must be actually and subjectively aware of the risk, but proceed without a conscious regard

to the safety of others. Shell Oil Co. v. Khan, 138 S.W.3d 288, 293 (Tex. 2004); Gonzalez, 418

S.W.3d at 789. With regard to each of these claims, our threshold inquiry turns on the existence

of a duty. The existence of a duty is a “question of law for the courts to decide from the facts

surrounding the occurrence in question.” Gonzales v. O’Brien, 305 S.W.3d 186, 189 (Tex. App.—

San Antonio 2009, no pet.) (quoting Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,

525 (Tex. 1990)). Generally, no duty exists to prevent harm to others absent certain special

relationships or circumstances. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000).

       In its motions for summary judgment, Sanchez Construction argued it owed no legal duty

to Kalinchuk as a matter of law because Kalinchuk was not its employee, it had no right of control

over Kalinchuk’s work, and Kalinchuk’s injury was not reasonably foreseeable. To support its

argument, Sanchez Construction relied on cases involving premises liability claims. See Shell Oil

Co. v. Khan, 138 S.W.3d 288, 293 (Tex. 2004) (holding no evidence premises owner had right of

control over independent contractor’s work); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.

1992) (“Recovery on negligent activity theory requires that the person have been injured by or as

a contemporaneous result of the activity itself rather than by a condition created by the activity.”);

Wycoff v. Fuller Contracting Co., 357 S.W.3d 157, 160 (Tex. App—Dallas 2007, no pet.) (holding

plaintiff’s claim was premises liability rather than common law negligence because plaintiff was

injured by unreasonably dangerous condition). According to Sanchez Construction, “Kalinchuk
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purports to state a claim for negligence,” when his claim is actually based on the theory of premises

liability because he is seeking to recover for an injury allegedly created by a condition on the

premises rather than for an injury created as a result of an activity. Therefore, according to Sanchez

Construction, the question of duty involves a determination of whether it, an independent

contractor hired by the City, owed Kalinchuk, an employee of the City, a duty to avoid creating a

dangerous condition at the construction worksite.

       In response, Kalinchuk argues Sanchez Construction owed him a common law duty to

exercise reasonable care and avoid a foreseeable risk of harm. According to Kalinchuk, Sanchez

Construction owed him a common law duty to move the bleachers as a reasonable person would

have done to avoid a foreseeable risk of harm. Kalinchuk further contends that he produced

evidence of foreseeability, establishing Sanchez Construction knew the bleachers could have been

moved in a safer manner, but instead were placed on an uneven surface.

       Whether Kalinchuk’s claim is a claim for negligence as he argues or a premises liability

claim as Sanchez Construction contends, the question of whether a duty exists remains the same

in that it requires a balancing of interrelated factors that make up the risk-utility balancing test.

Compare De Lago Prtnrs. Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) (applying risk-utility

balancing factors to determine question of duty in premise liability case) with Gonzales, 305

S.W.3d at 189 (pointing out courts can create new duty based on risk-utility balancing test in

negligence case). These factors include the risk, foreseeability, and likelihood of injury weighed

against the social utility of the actor’s conduct and consequences of placing the burden on the

defendant. Gonzales, 305 S.W.3d at 189. The “foremost and dominant consideration” in a duty

analysis is foreseeability of potential risk. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36

(Tex. 2002); Gonzales, 305 S.W.3d at 189. “Foreseeability means that a person who possesses

ordinary intelligence should have anticipated the danger that his negligent act would create for
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others.” Midwest Employers Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex.

App.—San Antonio 2009) (quoting Garcia v. Cross, 27 S.W.3d 152, 156) (Tex. App.—San

Antonio 2000)); see also Gonzales, 305 S.W.3d at 189. However, “foreseeability alone is not

sufficient to justify the imposition of a duty.” Golden Spread Council, Inc. v. Akins, 926 S.W.2d

287, 290–91 (Tex. 1996); see also Gonzales, 305 S.W.3d at 189; Harpole, 293 S.W.3d at 779.

Additionally, courts consider other factors, including: “(1) whether one party had a superior

knowledge of the risk, (2) whether a party had a right to control the conduct of another, (3) whether

societal changes require the recognition of new duties, (4) whether the creation of a new duty

would be in conflict with existing statutory law, and (5) whether there are countervailing concerns

that would support or hinder the recognition of a new duty.” Gonzalez, 305 S.W.3d at 190; see

also City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009).

                                            Application

       Here, the evidence demonstrates Sanchez Construction agreed to relocate the bleachers

from inside the baseball field to outside the field. Both Jesse and Pablo testified they placed straps

around the ends of sections of the bleachers and then used a forklift to lift the bleachers up and

move them. Pablo testified he believed this was the safest way to move the bleachers without

damaging them. Pablo also testified he was aware the surface outside the field was uneven and

placing the bleachers on that surface could pose a hazard.

       There is also summary judgment evidence that Kalinchuk saw Sanchez Construction

employees move the bleachers in the manner described above. Kalinchuk testified, however, that

when the employees lifted the bleachers, the bleachers were uneven and were “popping and

cracking.” He testified that sometimes the bleachers hit the wall as they were moved to the outside

of the field. Kalinchuk stated that on one occasion, a strap broke, but Sanchez Construction



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employees immediately placed the bleachers down to fix the strap. Jesse, however, testified he

did not recall any straps breaking or popping or cracking noises.

       According to Kalinchuk, this testimony — particularly, the testimony regarding the

potential danger the bleachers posed after being placed on an uneven surface — is some evidence

of foreseeability. Kalinchuk argues that as a result, he met his burden of producing evidence of

the existence of a legal duty. However, as indicated above, this court has held that evidence of

foreseeability alone is not sufficient to impose a duty. See Gonzales, 305 S.W.3d at 189; Harpole,

293 S.W.3d at 779. Although there was evidence Pablo knew the surface on which he was placing

the bleachers could pose a hazard — and thus, evidence of foreseeability — Kalinchuk failed to

produce any evidence of any of the other factors we must consider when determining whether a

duty exists. See Gonzales, 305 S.W.3d at 189. (highlighting lack of evidence of other factors and

therefore, holding no duty imposed).      Here, there is no evidence that established Sanchez

Construction in any way controlled Kalinchuk’s conduct or work or the property on which the

accident occurred. See id. (highlighting because no evidence that defendants controlled plaintiff’s

work or the property on which accident occurred, no duty existed). Rather, the undisputed

evidence establishes Kalinchuk worked for the City as opposed to Sanchez Construction and

Sanchez Construction did not have any authority over Kalinchuk or Kalinchuk’s work. See id.

       Kalinchuk refers this court to Gattis Electric, Inc. v. Mann, among other cases, to support

his position that Sanchez Construction owed him a duty under general negligence principles. No.

03-14-00080-CV, 2015 WL 5096475, at *4–*5 (Tex. App.—Austin Aug. 26, 2015, pet. denied)

(mem. op.). We find these cases distinguishable from the facts of this case. For example, in Mann,

in determining whether a legal duty existed, the court analyzed the relationship between a

subcontractor and an injured worker, who was not the subcontractor’s employee. Id. The court

concluded the subcontractor owed the injured worker a duty because the undisputed evidence
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established the subcontractor exercised supervising authority over the injured worker and was

responsible for the injured worker’s work. Id. at *5 (holding contractor owed duty to injured

worker because contractor had authority to supervise and ultimately fire worker). Therefore, in

that context, the subcontractor owed a duty to the injured worker. However, in this case, as set

forth above, it is undisputed Sanchez Construction did not exercise any authority over Kalinchuk

or the nature of Kalinchuk’s work. There is no evidence establishing Sanchez Construction, like

the subcontractor in Mann, was responsible for supervising Kalinchuk on the construction

worksite; therefore, we cannot conclude Sanchez Construction owed a duty like the subcontractor

in Mann to Kalinchuk under either general negligence or premises liability principles.

       Finally, with regard to the remaining factors considered in determining whether a duty

exists, Kalinchuk does not point to, nor have we found, any evidence that would justify the creation

of a legal duty under these circumstances. Accordingly, we conclude Kalinchuk failed to produce

a scintilla of evidence creating a fact issue to support the existence of legal duty owed to him by

Sanchez Construction. We therefore overrule Kalinchuk’s appellate issues and hold the trial court

did not err in granting summary judgment in favor of Sanchez Construction as to both the

negligence and gross negligence claims. See Gonzalez, 418 S.W.3d at 789 (holding that because

summary judgment was proper on negligence, also proper on gross negligence).

                                          CONCLUSION

       Based on the foregoing, we affirm the trial court’s judgment.


                                                 Marialyn Barnard, Justice




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