                                                                                                                  ACCEPTED
                                                                                                              03-14-00080-CV
                                                                                                                      6056180
                                                                                                   THIRD COURT OF APPEALS
                                                                                                              AUSTIN, TEXAS
                                                                                                        7/14/2015 12:19:24 PM
                                                                                                            JEFFREY D. KYLE
                                         August 26, 2015                                                               CLERK



D. Todd Smith
todd@appealsplus.com                                                                    RECEIVED IN
Board Certified—Civil Appellate Law                                               3rd COURT OF APPEALS
Texas Board of Legal Specialization                                                    AUSTIN, TEXAS
                                                                                  7/14/2015 12:19:24 PM
                                               July 13, 2015                          JEFFREY D. KYLE
                                                                                           Clerk

Jeffrey D. Kyle, Clerk
THIRD COURT OF APPEALS
Price Daniel, Sr. Building
209 W. 14th St., Room 101
Austin, Texas 78701

        Re:      No. 03-14-00080-CV in the Third Court of Appeals; Gattis Electric, Inc.
                 v. Theresa Marie Mann, Individually, and as Guardian of the Person and
                 Estate of James Lawhon
                 Letter of Supplemental Authority

Dear Mr. Kyle:

      Appellee Theresa Marie Mann, Individually and as Guardian of the Person and
Estate of James Lawhon, submits this letter of supplemental authority supporting certain
arguments made in Appellees’ Brief. See TEX. R. APP. P. 38.7.

       In its reply brief, Appellant Gattis Electric, Inc. brushes aside the argument that
Lawhon properly submitted a general negligence theory—rather than a premises-liability
theory—because Gattis was not the owner or occupier of the premises on which Lawhon
was injured. Compare Appellants’ Reply Br. at 2 (“Lawhon says his claim against Gattis
is not a ‘premises defect’ claim because Gattis was not the property owner. That is
irrelevant to the proper characterization of his claim.”), with Appellees’ Br. at 16-21
(citing authority recognizing that nature of duty depends on whether defendant enjoys
status as owner, occupier, or legal equivalent). The Texas Supreme Court’s recent
decision in Austin v. Kroger Texas, L.P., ___ S.W.3d ___, No. 14-0216, 2015 WL
3641066 (Tex. June 12, 2015), squarely supports Lawhon’s position.

      In Austin, the Supreme Court addressed for the first time the interaction between
premises-liability claims and general negligence duties, there in the context of an
employer-employee relationship:




     1250 Capital of Texas Highway South | Three Cielo Center, Suite 601 | Austin, TX 78746 | 512.439.3230
Re: No. 03-14-00080-CV
July 13, 2015
Page 2

             When an injury arises from a premises condition, it is often the case
      that any resulting claim sounds exclusively in premises liability, but that is
      not necessarily the case. An injury can have more than one proximate
      cause. The fact that Austin alleged that a condition of the premises
      proximately caused his injury does not preclude his allegation that Kroger’s
      negligent failure to provide the Spill Magic system also caused his injury. If
      the only relationship between Austin and Kroger were that of landowner-
      invitee, the alleged facts could only give rise to a premises-liability
      claim. . . .

Austin, 2015 WL 3641066, at *15 (emphasis added) (citations and footnote omitted)
(citing Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010); Lee Lewis Constr.,
Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001)). The Court further stated:

      Only an employer that has control over the premises where the employee is
      injured has a premises-liability duty to the employee, but the duty to
      provide necessary and safe instrumentalities applies to employers generally.
      If we were to adopt the rule Kroger advocates, employees injured on their
      employers’ premises by the employer’s failure to provide necessary and safe
      equipment would have to try their claims under a premises-liability theory of
      recovery, while employees injured on premises not owned by their
      employers would have to prosecute the same breach of duty under a
      general negligence theory of recovery—two different claims with different
      elements of proof. We see no reason why employees injured by a breach of
      the same duty should have to prove different elements to recover.

Id. (emphasis added) (citations omitted).

      The Austin decision thus confirms that one must be an owner, occupier, or legal
equivalent (such as a general contractor) to owe a duty under premises-liability law. If the
defendant lacks that status—as is the case here—general negligence duties apply.

      Even if Gattis somehow stood in the shoes of the premises owner, Austin also
dispels Gattis’s claim that “[c]ourts have clearly settled” in its favor “whether [p]remises
defect claims and negligent activity claims are independent.” Appellant’s Reply Br. at 3.
Without even citing the cases on which Gattis relies to support its view, the Supreme
Re: No. 03-14-00080-CV
July 13, 2015
Page 3

Court expressly reserved “whether a single injury could give rise to both a premises-
liability claim and a negligent activity claim if both the condition of the premises and the
contemporary activities of the premises owner proximately cause the injury.” 2015 WL
3641066, at *15 n.22.

      It is undisputed that Gattis did not own or occupy the premises in question. As
Austin confirms, Gattis could not benefit from premises-liability law, and Lawhon
properly submitted this case under a general negligence charge.

                                          Respectfully submitted,



                                          D. Todd Smith
                                          SBOT #00797451
                                          Counsel for Appellees

DTS/slk

                                  Certificate of Service

      By my signature above, I certify that a copy of this letter was sent to the following
counsel of record through the electronic filing system on July 13, 2015:

      Kevin D. Jewell
      CHAMBERLAIN, HRDLICKA, WHITE,
       WILLIAMS & AUGHTRY
      1200 Smith Street, Suite 1400
      Houston, Texas 77002
      Lead Appellate Counsel for Appellant
      Gattis Electric, Inc.
