                                                                               ACCEPTED
                                                                          04-14-00622-CV
                                                               FOURTH COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                    12/30/2014 4:37:57 PM
                                                                            KEITH HOTTLE
                                                                                   CLERK

                        No. 04-14-00622-CV
__________________________________________________________________
                                                      FILED IN
                                               4th COURT OF APPEALS
               IN   THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
                       SAN ANTONIO, TEXAS      12/30/2014 4:37:57 PM
                                                   KEITH E. HOTTLE
                                                        Clerk

MARISELA G. SALAS, INDIVIDUALLY AND AS REPRESENTATIVE OF
 THE ESTATE OF MARTIN SUAREZ AND A/N/F OF KEYLA MARIZEL
  SUAREZ, MARTIN SUAREZ GUERRERO AND SILVIA MARTINEZ,

                            APPELLANT

                                 V.

       ALLEN KELLER CO. I, LLC D/B/A ALLEN KELLER CO.,

                            APPELLEE
__________________________________________________________________

            On Appeal from the 216th Judicial District Court of
                         Gillespie County, Texas
__________________________________________________________________

                         APPELLEE’S BRIEF



                                      Erik R. Wollam
                                      State Bar No. 00788705
                                      Ellen Gerson Tagtmeier
                                      State Bar No. 07827700
                                      LUCERO | WOLLAM, P.L.L.C.
                                      13590 Ranch Road 12
                                      Wimberley, Texas 78676
                                      Telephone: (512) 485-3500
                                      Facsimile: (512) 485-3501
                                      ewollam@lucerowollam.com
                                      etagtmeier@lucerowollam.com
                                        TABLE OF CONTENTS

                                                                                                             Page No.

ABBREVIATIONS ................................................................................................. iii

INDEX OF AUTHORITIES ....................................................................................iv

STATEMENT OF THE CASE ................................................................................vi

ISSUE PRESENTED ............................................................................................. vii

STATEMENT OF FACTS ....................................................................................... 1

SUMMARY OF THE ARGUMENT ........................................................................ 2

ARGUMENT AND AUTHORITIES ........................................................................ 3

        I.       Standard of Review in the Trial Court - Traditional Motion for
                 Summary Judgment ............................................................................. 3

        II.      Standard of Review on Appeal- Traditional Motion for Summary
                 Judgment ................................................................................................ 4

        III.    The Summary Judgment Evidence did not Raise a Genuine Issue of
                 Material Fact Regarding Whether Allen Keller Co. Retained
                 Sufficient Control Over the Work Being Performed by Martin
                 Suarez When he was Injured Such That Allen Keller Co. is Liable
                 to Martin Suarez for Negligence ……………………………………. 5

                 A.        Subcontract Agreement - C&B White's Scope of
                           Work …………………………………………….…………… 5

                 B.        TxDoT Drawings and Plans Controlled C&B's Work ….……. 6

                 C.        AK Never Controlled C&B's Work to Put Traffic Control
                           Signs in the Pickup and Move the Signs to the Locations
                           Where They Were to be Placed ………………………………. 7

                           1.       The Day of the Accident ………………………………. 9
                                                            i
                                                                                                            Page No.


                  D.       AK Owed no Duty to Suarez ………………………..……… 12

                           1.        General rule - Since C&B was an independent contractor,
                                     AK had no duty to make sure That C&B safely
                                     performed its work …………………………...……… 12

                           2.        Exception to general rule …………...………………. 13

                                     a.       AK had no actual knowledge of the danger or
                                              condition that led to Suarez's death …………. 13

                                     b.       AK did not exercise sufficient control over
                                              Suarez's work when he was injured ……………14

         IV.      Appellant's Argument Based on Chapter 95 of the Texas Civil
                  Practice and Remedies Code is Moot ..……………………………..15

         V.       Excerpts from the Texas Manual on Uniform Traffic Control
                  Devices at Tab 3 of the Appendix to Appellant's Brief are not
                  Part of the Summary Judgment Record and Can't be Considered
                  in this Appeal ...................................................................................... 16

         VI.      Plaintiff Failed to Timely Perfect this Appeal ................................... 17

CONCLUSION AND PRAYER ............................................................................. 17

CERTIFICATE OF COMPLIANCE ....................................................................... 18

CERTIFICATE OF SERVICE ............................................................................... 19

APPENDIX ............................................................................................................. 20




                                                           ii
      ABBREVIATIONS


      CR = Clerk’s Record

SCR –Supplemental Clerk's Record

     RR = Reporter's Record




               iii
                        INDEX OF AUTHORITIES

                                                                   Page No.

Cases

Anderson v. Snider,
            808 S.W.2d 54 (Tex. 1991)……………………………...……………3

City of Houston v. Clear Creek Basin Auth.,
            589 S.W.2d 671 (Tex. 1979)..…………………………………………4

Compton v. Calabria,
           811 S.W. 2d 945 (Tex. App.–Dallas 1991, no writ)….………………4

Dow Chemical Co. v. Bright,
     89 S.W.3d 602 (Tex. 2002).…………………………………………..……13

General Electric v. Moritz,
     257 S.W.3d 211 (Tex. 2008).………………………………………………12

Gibbs v. General Motors,
      450 S.W.2d 827 (Tex. 1970).…………………………………..……………5

Hoechst-Celanese v. Mendez,
     967 S.W.2d 354 (Tex. 1998).……………………………...………… 12, 15

K-Six Television, Inc. v. Santiago,
      75 S.W.3d 91 (Tex. App.—San Antonio 2002, no pet.) ………………..…16

Lear Siegler, Inc. v. Perez,
      819 S.W.2d 470 (Tex. 1991) …………………………………………... 4, 5

Long v. State Farm Fire & Cas. Co.,
      828 S.W.2d 125 (Tex. App.–Houston [1st Dist.] 1992, writ denied). ………4

Marathan Corp. v. Pitzner,
     55 S.W.3d 114 (Tex. App—Corpus Christi 2001), rev’d on other grounds,
     106 S.W.3d 724 (Tex. 2003). …………………………………………...…12


                                     iv
                                                     Page No.

Nixon v. Mr. Property Management Co.,
      690 S.W.2d 546 (Tex. 1985). ……………………………………..…… 3, 4

Shell Oil v. Khan,
      138 S.W.3d 288 (Tex. 2004). ………………………………………...……14

Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc.,
      644 S.W.2d 443 (Tex. 1982). ………………………………………….……3

Valence Operating Co. v. Dorsett,
      164 S.W.3d 656 (Tex. 2005).……………………………………………..…4




                             v
                         STATEMENT OF THE CASE


Nature of Case:    This case arises out of a negligence claim made by estate
                   beneficiaries against Allen Keller Co. (a general contractor for a
                   TxDOT roadway project near Blanco, Texas) based on personal
                   injuries on a job site leading to the death of Martin Suarez.

Parties:           Martin Suarez was an employee of C&B White Services, Inc.,
                   a subcontractor (independent contractor) to Allen Keller Co.
                   (as general contractor ) on a TxDoT job near Blanco, Texas.
                   Plaintiff sued as the representative of the Estate of Martin
                   Suarez, deceased.

Proceedings:       Plaintiff filed an Original Petition and a First Amended Original
                   Petition. CR 5-106, 150-158. Allen Keller Co. filed an Original
                   Answer and a First Amended Answer. CR 107-109, 126-128.
                   Allen Keller Co. file a Traditional Motion for Summary
                   Judgment as to Plaintiff's negligence claim. CR 136-230.
                   Plaintiff filed a Response to the Traditional Motion for
                   Summary Judgment. CR 231-277. Allen Keller Co. filed a
                   Reply to Plaintiff’s Response to the Traditional Motion for
                   Summary Judgment. CR 278-281.

Disposition:       The Court granted the Traditional Motion for Summary
                   Judgment and entered a Summary Judgment. CR 304-307.
                   Plaintiffs filed a Motion for New Trial [not included in the
                   Clerk's Record by Appellant]. The Motion for New Trial was
                   overruled by operation of law on August 25, 2014.
                   Tex.R.Civ.P. 329b(c).

Notice of Appeal: On July 11, 2014, Plaintiffs file a Notice of Appeal. CR 310-
                  315.

Record on
Appeal:            The record on appeal consists of one volume of the Clerk’s
                   Record (CR 1-322), one volume of the Reporter’s Record (RR
                   1-40) and one volume of the Supplemental Clerk’s Record
                   (SCR 1-27).


                                         vi
ISSUE PRESENTED:

    The Summary Judgment Evidence did not Raise a Genuine Issue of Material
    Fact Regarding Whether Allen Keller Co. Retained Sufficient Control Over
    the Work Being Performed by Martin Suarez When he was Injured Such
    That Allen Keller Co. is Liable to Suarez for Negligence.




                                   vii
                           STATEMENT OF FACTS

       In July 2012, Martin Suarez ("Suarez's) was employed by C&B White

Services, Inc. (“C&B”) as part of a concrete crew near Blanco, Texas. CR 208

(Castillo Depo. 14/5-10); CR 211 (Castillo Depo. 28/2-4). C&B was an

independent contractor of Allen Keller Co. (“AK”) under a contract to provide

concrete work around and under the guardrails of the roadway. CR 164 (White

Depo 6/23 - 7/24). Sometime after C&B began to perform work for AK in or about

November 2011, C&B agreed that it would also perform traffic control, consisting

of moving and placing construction zone warning signs and cones for its scope of

work. CR 159-160 (Affidavit of Kory Keller at ¶ 2); CR 166 (White Depo. 15/8-

18).

       By July 11, 2012, C&B’s crew had been doing traffic control on this job for

about a month. That morning, as the C&B crew began the process of setting out

construction warning signs, Suarez and another crew member decided for the first

time ever to ride straddling the tailgate of C&B’s pickup (with one foot each inside

the bed of the truck and one foot on the outside bumper) which was carrying the

road signs. CR 212 (Castillo Depo. 29/14-30/1, 30/18-31/10). As the C&B truck

began to move, a road sign was blown out of the bed of the truck, knocking Suarez

and the other crew member who was straddling the tailgate to the roadway. CR 212




                                         1
(Castillo Depo. 32/15-22). Suarez suffered a severe head injury which led to his

death later that day. CR 223 (Castillo Depo. 76/1-4).

      Plaintiff, as the representative of Suarez's estate, sued C&B (Suarez'ss

employer) and AK (the general contractor) for negligence, asserting that AK

retained sufficient control over the details of Suarez'ss that AK is liable in

negligence to Suarez for his death. CR 150-158. AK filed a Traditional Motion for

Summary Judgment on the grounds that AK did not exercise sufficient control over

the work being done by Suarez at the time when he was injured and cannot be held

liable for his death. CR 136 - 230. The Trial Court granted AK’s Traditional

Motion for Summary Judgment. (CR 304-307).

                      SUMMARY OF THE ARGUMENT

      Suarez was employed by C&B, an independent subcontractor to AK, the

general contractor. AK, as a general contractor, owed no duty to ensure the

subcontractor and/or its employees worked safely.       The entirety of Plaintiff’s

summary judgment evidence was devoted to proving an exception to this rule:

namely, that AK exercised actual control over "the work.”      Plaintiff’s summary

judgment evidence, however, missed the mark and failed to raise a fact issue

linking AK’s alleged control and the activity that actually caused Suarez's injuries

and death. The cause of Suarez's unfortunate accident was his decision to ride

straddling the tailgate of his employer’s truck as the crew moved traffic control


                                         2
signs. AK’s summary judgment evidence conclusively proved that AK was never

involved in any way with the manner in which the C&B White crew moved signs

around and Plaintiff introduced no summary judgment evidence to the contrary.

Plaintiff also failed to introduce any summary judgment evidence that AK had

actual knowledge of the danger or condition resulting in Suarez's injury and death

which is also part of the exception to the general rule; whereas AK’s summary

judgment evidence conclusively proved that AK had no such knowledge. AK's

summary judgment evidence proved that AK owed no duty to Suarez and could not

be liable to him in negligence. The Trial Court properly entered a traditional

summary judgment in favor of AK.

                     ARGUMENT AND AUTHORITIES

I.    Standard of Review in the Trial Court - Traditional Motion for
      Summary Judgment

      Summary judgment is proper whenever a defendant’s summary judgment

proof conclusively disproves at least one element of each cause of action alleged

by the Plaintiff. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); see also

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985). A

matter is conclusively established if ordinary minds cannot differ as to the

conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine

Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).



                                        3
      Once the movant has established a right to summary judgment, the burden

shifts to the non-movant, who must then respond to the motion and present any

issues to the court which should preclude summary judgment. Long v. State Farm

Fire & Cas. Co., 828 S.W.2d 125, 127 (Tex. App.–Houston [1st Dist.] 1992, writ

denied); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.

1979). If a defendant is able to disprove at least one element of Plaintiff’s cause of

action, the defendant’s summary judgment should be granted.              Compton v.

Calabria, 811 S.W. 2d 945, 949 (Tex. App.–Dallas 1991, no writ).

      AK conclusively disproved at least one element of Plaintiff’s negligence

claim – that of duty – and thus, summary judgment for AK was proper.

II.   Standard of Review on Appeal - Traditional Motion for Summary
      Judgment

      The standard of review on appeal for the granting by the Trial Court of a

traditional summary judgment is a review de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The appellate court reviews the

evidence in a summary judgment case in a light most favorable to the nonmovant

appellant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

The appellate court must determine whether the successful movant at the trial level

carried its burden of showing that there was no genuine issue of material fact and

that a judgment should have been granted as a matter of law. Lear Siegler, Inc. v.


                                          4
Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon, 690 S.W.2d at 548. Thus, the

question on appeal is not whether the summary judgment proof raises fact issues as

to required elements of the movant's cause or claim, but whether the summary

judgment proof establishes, as a matter of law, that there is no genuine issue of

material fact as to one or more elements of the movant's cause or claim. Gibbs v.

General Motors, 450 S.W.2d 827, 828 (Tex. 1970).

III.   The Summary Judgment Evidence did not Raise a Genuine Issue of
       Material Fact Regarding Whether Allen Keller Co. Retained
       Sufficient Control Over the Work Being Performed by Martin
       Suarez When he was Injured Such That Allen Keller Co. is Liable
       to Martin Suarez for Negligence

       A.    Subcontract Agreement - C&B White's Scope of Work

       In November, 2011, C&B entered into a written subcontract agreement with

AK in connection with the completion of a road construction project. CR 191-201

(Construction Subcontract); CR 165 (White Depo. 11/4-11, 11/20-12/8). Part of

that project was on Highway 1623 in Blanco County, Texas. CR 165 (11/4-12/8);

CR 191-202 (White Depo. Exs. 5 and 6). C&B White’s specific scope of work on

Highway 1623 was to pour concrete in the “mow strips”—areas under the

guardrails that are paved to eliminate the need for weed-eating. CR 164 (White

Depo. 7/14-24). Since the project was on a public roadway, the Texas Department

of Transportation (“TxDOT”) was the Owner of the project. CR 159 (Affidavit of

Kory Keller at ¶ 1).


                                        5
      According to C&B’s subcontract with AK, C&B was obligated to supply its

own, labor, tools and materials. CR 160 (Affidavit of Kory Keller at ¶3); CR 191-

192 (Construction Subcontract at ¶1). C&B was also required to procure its own

commercial general liability insurance, automobile insurance and workers’

compensation insurance. CR 160 (Affidavit of Kory Keller at ¶3); CR 193 - 194

(Construction Subcontract at ¶¶ 13(1)-(4)). Further, C&B promised to take

reasonably necessary safety precautions and follow AK’s safety policy. CR 160

(Affidavit of Kory Keller at ¶4); CR 195 (Construction Subcontract at ¶20).

      Initially, AK was to provide traffic control, but at some point in time

between November 2011 and July 2012, C&B agreed to take over traffic control as

part of its scope of work. CR 159-160 (Affidavit of Kory Keller at ¶ 2); CR 166

(White Depo. 15/8-18). C&B established a daily fee for the traffic control work

and billed AK. CR 166 (White Depo. 15/24-16/15). No separate written contract or

formal addendum was executed for this traffic control work. When a disagreement

arose over C&B’s bill to AK, AK agreed to throw some materials into the bargain.

CR 175-176 (White Depo. 52/25-53/24).

      B.    TxDoT Drawings and Plans Controlled C&B's Work

      C&B’s concrete work was guided by construction/engineering drawings

from TxDOT showing C&B where to place concrete aprons underneath barricades.

CR 166-167 (White Depo. 16/16-17/7).        Likewise, when C&B began traffic


                                        6
control work, C&B received through AK a written traffic control plan prepared by

TxDOT roadway engineers. CR 159-160 (Affidavit of Kory Keller at ¶2); CR 167

(White Depo. 17/8-18/6). C&B followed the guidelines from TxDOT in placing

the traffic control signs and cones. CR 167 (White Depo. 17/8-18/6). Other than an

AK employee helping to set out traffic control cones on C&B’s first day of traffic

control work, the TxDOT binder was the source of C&B’s instruction on how to

set out traffic control signs and cones. CR 169 (White Depo. 25/22-26/22).

      C.    AK Never Controlled C&B's Work to Put Traffic Control Signs
            in the Pickup and Move the Signs to the Locations Where They
            Were to be Placed

      No AK personnel was actively involved in the process of picking up or

laying down traffic control signs other than to confirm that the signs were taken

down from the roadway at the end of each day. CR 168 (White Depo. 24/4-13).

On a day-to-day basis, the C&B crew controlled picking up the signs, putting them

in a C&B pickup truck and getting them to the location where they needed to be

placed on the roadway. CR 171 (White Depo. 34/22 -35/2). No one at AK gave the

C&B crew, including Suarez, oral or written instructions on how to place the signs

in the bed of the truck. Further, no one at AK instructed the crew, including

Suarez, where they should ride in the truck while placing traffic control signs on

the roadway. CR 171 (White Depo. 35/3 - 36/10). AK never controlled how the

C&B crew placed the traffic control signs into the C&B truck or where C&B crew


                                        7
should ride in the truck while putting the signs out. CR 171 (White Depo. 35/3-25;

36/5-10); CR 215-216 (Castillo Depo. 44/19- 45/3).

      At no time during C&B's work on this project did anyone from AK ask

anyone from C&B to move a traffic control sign that C&B employees had placed

on the roadway. CR 224-225, 228 (Castillo Depo. 80/9-12, 81/20-23, 95/7-15).

Casey White ("White"), President of C&B, had filled out a safety program

checklist for this job when C&B subcontracted with AK. CR 200 (Construction

Subcontract at p. 10). White also specifically instructed his crew, including

Roberto Moreno Castillo ("Castillo"), the crew foreman, that nobody was to ride in

the back of vehicles or hang on the sides of the truck while doing this work. CR

172 (White Depo. 37/6-39/9). White made daily inspections of the jobsite and

never saw any of his crew members riding in the bed of a pickup truck or

straddling the tailgate of a pickup truck. CR 172 (White Depo. 40/7-21).

      It was a TxDOT mandate that required signs to be taken down every night

and replaced in the morning. CR 168 (White Depo. 22/14-20). Although the signs

and cones belonged to AK, C&B provided the vehicle to move the signs and all

other tools and safety equipment for its crew. CR 160 (Affidavit of Kory Keller at

¶¶ 3 and 4).

      A TxDOT inspector was frequently on the job to check C&B’s concrete

work and traffic control. CR 167 (White Depo. 18/19-25; 19/15-24). On two


                                        8
occasions, TxDOT took issue with C&B’s spacing of traffic control cones and

C&B received calls from TxDOT and/or AK regarding TxDOT's concerns. C&B

corrected cone spacing to comply with TxDoT instructions. CR 167-168 (White

Depo. 19/25-20/25; 24/14-25).

      The task of traffic control was not complex and after the first day, the C&B

crew handled it with no input from AK, other than the two calls regarding the

spacing of traffic cones (not signs) which originated with TxDOT. CR 169 (White

Depo. 26/10-27/2).    Neither TxDOT nor AK criticized the manner in which the

C&B crew loaded or moved the traffic control signs. CR 168-169 (White Depo.

22/4-13; 25/15-21).

            1.     The Day of the Accident

      In keeping with the TxDOT mandate to put up and take down the traffic

control signs daily, the C&B crew would put out warning signs at the beginning of

the work day. CR 208 (Castillo Depo. 16/4-7). At the time of the accident, the

crew had been putting out and picking up the same three signs every day for about

a month. CR 208-209 (Castillo Depo. 15/16-22, 19/24- 20/6, 20-22). The C&B

crew was headed up by C&B employee Castillo and, on the day of the accident, the

crew included Suarez and three others. CR 208 (Castillo Depo. 14/5-10); CR 211

(Castillo Depo. 28/2-4).




                                        9
      On the morning of the accident, the C&B crew picked up the signs from a

work area and stacked them flat in the bed of Castillo's truck. CR 210 (Castillo

Depo. 21/20-22/10; 43/7-9). Nobody from AK was at the job site at that time; no

one from AK gave Suarez or the other C&B crew members the traffic control

signs, no one from AK saw the C&B crew load the signs into the truck or drive

away. CR 210 (Castillo Depo. 23/2-3, 9-12); CR 225 (83/4-18). No one from AK

told the C&B crew, including Suarez, how to place the signs in the truck or where

to place themselves either in the cab or bed of the truck or on the bumper that

morning. CR 211 (Castillo Depo. 25/16-24, 26/5-11).

      After the signs were loaded into Castillo's pickup truck, two crew members

got in the cab with Castillo. CR 211 (Castillo Depo. 26/25 - 27/2). Suarez and

another crew member decided for the first time to ride straddling (with one foot

each inside the bed of the truck and one foot on the outside bumper) the tailgate of

C&B's pickup, which was carrying the road signs. CR 212 (Castillo Depo. 29/14-

25; 30/18-31/10; 31/21-23). Castillo told the two crew members in the back of the

truck, including Suarez, to sit in the cab, but they did not want to and refused to do

so. CR 212 (Castillo Depo. 30/25-31/10). Castillo was in charge of directing

Suarez and if he saw Suarez doing something he didn’t want him to do, he had the

authority to tell him to stop. CR 219 (Castillo Depo. 58/19-59/9). Sometimes

Suarez followed Castillo's instructions; sometimes he did not. Id.


                                         10
      Suarez knew that Castillo was going to drive the truck down the road to

place the signs and chose to ride straddling the tailgate, despite Castillo telling him

to sit down in the bed of the truck. CR 213 (Castillo Depo. 35/6-16). As Castillo

started driving, however, he could see in his rearview mirror that the two men were

still riding with one foot in the bed and one foot on the bumper—straddling the

tailgate. CR 212 (Castillo Depo. 29/9-30/60. This was the first time Castillo had

ever seen them ride on the truck this way. CR 212 (Castillo Depo. 30/18-23).

Therefore, nobody from AK could have ever seen the C&B crew, including

Suarez, ride on the truck this way. CR 225 (Castillo Depo. 82/15-83/1).

      As he drove, Castillo watched the men in his rearview mirror. When they

were about two hundred feet from where the crew had loaded the signs, he saw a

gust of wind lift a sign and then saw Suarez and the other man fall off the back of

the truck. CR 212 (Castillo Depo. 32/15-22). Castillo stopped the truck

immediately and ran to help Suarez and the other crew member. CR 214 (Castillo

Depo. 37/20-23). Suarez was unconscious on the roadway, so Castillo called 911

and his employer, White. CR 214 (Castillo Depo. 38/17-23; 40/22-23). Suarez

never regained consciousness and died later that same day. CR 223 (Castillo Depo.

76/1-4).




                                          11
      D.     AK Owed no Duty to Suarez

      The Trial Court determined that Chapter 95 does not apply to the facts of

this case. CR 302-303(Letter from Judge Williams). AK was still entitled to a

summary judgment under Texas common law concerning Plaintiff's negligence

claims. AK owed no duty to Suarez, because AK neither exercised nor retained

sufficient control over the manner in which Suarez performed the work which

caused his death nor had actual knowledge of the danger or condition which

resulted in Suarez's death.

             1.     General rule - Since C&B was an independent contractor,
                    AK had no duty to make sure that C&B safely performed
                    its work

      In general, a premises owner or general contractor has no duty to ensure that

an independent contractor safely performs his work. Hoechst-Celanese v. Mendez,

967 S.W.2d 354, 356 (Tex. 1998).       An independent contractor is in a better

position than a premises owner or general contractor to inspect, eliminate or warn

of danger arising from the independent contractor’s work. Marathan Corp. v.

Pitzner, 55 S.W.3d 114, 131 (Tex. App—Corpus Christi 2001), rev’d on other

grounds, 106 S.W.3d 724 (Tex. 2003). A general contractor can reasonably expect

an independent contractor to instruct its own employees how to do work safely.

General Electric v. Moritz, 257 S.W.3d 211, 215-216 (Tex. 2008).




                                        12
            2.     Exception to general rule

      A limited exception to this general rule exists when a general contractor: (1)

retains a right of control over the manner in which work is performed, other than

the right to order work to stop and start or to inspect progress or receive reports,

and (2) has actual knowledge of the danger or condition resulting in the personal

injury, death or property damage and failed to adequately warn. Dow Chemical

Co. v. Bright, 89 S.W.3d 602, 606; 609 (Tex. 2002).

                   a.    AK had no actual knowledge of the danger or
                         condition that led to Suarez's death

      First, and most importantly, the summary judgment evidence disproves that

AK had actual knowledge of the danger or condition that led to Suarez's accident

and caused his death. AK’s summary judgment evidence is clear, positive, direct

and uncontroverted by Plaintiffs: (a) two crew members, including Suarez, had

never ridden out on the tailgate before; (b) nobody from AK was present to see

Suarez ride out on the tailgate that morning; and (c) Suarez had been told by his

employer, Casey White, not to ride in the bed or on the tailgate of White’s trucks.

It was Suarez's impromptu decision to ride on the tailgate of the C&B truck that

proximately caused his death. The summary judgment evidence conclusively

disproves that AK actually knew about the condition which caused Suarez's death.

AK was properly entitled to summary judgment on any claim of liability for it's

independent contractor’s actions.
                                        13
                    b.    AK did not exercise sufficient control over Suarez's
                          work when he was injured

      The summary judgment evidence disproved that AK had or exercised any

control over the manner in which C&B was transporting its crew and signs for

traffic control. Again, the causal connection must be tight: the control must relate

directly to the injury caused by the supposed negligence. Texas law is clear that a

nexus must be shown between the retained control and the specific condition or

activity that caused the injury. Shell Oil v. Khan, 138 S.W.3d 288, 294 (Tex.

2004). It is not enough to show that a defendant controlled one aspect of the

independent contractor’s activities if the injury arose from another. Id. at 294.

      Lumping activities together under an umbrella does not work: “it is not

enough to show that an oil company controlled some security activities if the ones

it controlled had nothing to do” with the cause of the injury. Shell Oil Co. v. Khan,

138 S.W.3d 288, 294 (Tex. 2004). Likewise, it is not enough to show that AK

controlled some traffic control activities if the ones it controlled had nothing to do

with the injury—and that is precisely the case here. Summary judgment is proper

because AK has disproven supervisory control over the activity that caused

Suarez'ss injury.

      Plaintiffs’ summary judgment evidence missed the mark and failed to raise a

fact issue linking AK’s alleged control and the activity that actually caused

Suarez's injury and death. The scope of duty is limited to the scope of supervisory
                                          14
control. Hoeschst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998).

The cause of Suarez's unfortunate accident and death was his decision to ride

straddling the tailgate of his employer’s truck as the crew moved signs. The only

evidence of supervisory control by AK is that it enforced TxDOT rules regarding

spacing of traffic cones, on limited occasions, days prior to Suarez's accident.

Spacing of traffic cones had nothing to do with Suarez's injury which involved the

transportation of traffic control signs.

      The only summary judgment evidence offered by Plaintiff on this point is

that AK “omitted any information about how signs were to be secured or moved

before they were placed.” CR 235. Put simply, the only evidence of control

Plaintiff can offer with respect to loading and moving signs is a complete lack of

control by AK. This fails as a matter of law to constitute evidence of control.

      AK’s summary judgment evidence conclusively proved that AK was never

involved in any way with the manner in which the C&B White crew moved the

traffic control signs around and Plaintiff did not introduce any summary judgment

evidence to the contrary. Thus, the summary judgment evidence disproved the

element of duty for Plaintiff's negligence claim.

IV.   Appellant's Argument Based on Chapter 95 of the Texas Civil Practice
      and Remedies Code is Moot

      The entirety of Appellant's argument that related to Chapter 95 of the Texas

Civil Practice and Remedies Code concerning whether or not Appellee is an owner
                                           15
or someone else which is covered by the statute (found on pages 14-18 of

Appellant's Brief) must be ignored by this Court because on May 28, 2014, the

Trial Court determined that Chapter 95 does not apply to the facts of this case and

specifically stated that it was not granting the summary judgment based on Chapter

95, but on other grounds included in the motion for summary judgment. CR 302-

303.

V.     Excerpts from the Texas Manual on Uniform Traffic Control Devices
       at Tab 3 of the Appendix to Appellant's Brief are not Part of the
       Summary Judgment Record and Can't be Considered in this Appeal

       Appellant did not attach the excerpts from the Texas Manual on Uniform

Traffic Control Devices found at tab 3 of the Appendix to her Brief to her

summary judgment papers and they were not part of the summary judgment record

before the Trial Court. They are not part of the Clerk's Record or the Supplemental

Clerk's Record for this appeal. Therefore, they cannot be considered by this court.

K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 96–97 (Tex. App.—San Antonio

2002, no pet.)(documents attached to briefs that are not part of the summary

judgment record cannot be considered on appeal). Further, these excerpts are

irrelevant as they have nothing to do with how Suarez loaded the traffic control

signs into the back of a pick up and rode straddling the tailgate of the pickup down

the road to transport these signs to the places where they needed to be placed on




                                        16
the roadway; instead, they govern the size, placement, design and maintenance of

traffic control signs.

VI.   Plaintiff failed to Timely Perfect This Appeal

       Appellant failed to timely perfect this appeal. Her Motion for New Trial was

due to be filed on July 9, 2014 (30 days after the Summary Judgment was signed

on June 9, 2014), as was her Notice of Appeal. The Motion for New Trial was

untimely filed on July 10, 2014, and the Notice of Appeal was untimely filed on

July 11, 2014.

                         CONCLUSION AND PRAYER

       In light of the foregoing, Allen Keller Co. respectfully prays that this

Appellate Court affirm the judgment of the Trial Court and grant all other relief to

which Allen Keller Co. is entitled.




                                        17
                                     Respectfully submitted,

                                     LUCERO | WOLLAM, P.L.L.C.

                                     /s/ Erik Wollam
                                     ____________________________
                                     ERIK R. WOLLAM
                                     State Bar No. 00788705
                                     ELLEN GERSON TAGTMEIER
                                     State Bar No. 07827700
                                     13590 Ranch Road 12
                                     Wimberley, Texas 78676
                                     Telephone: (512) 485-3500
                                     Facsimile: (512) 485-3501
                                     ewollam@lucerowollam.com
                                     etagtmeier@lucerowollam.com

                                     ATTORNEYS FOR APPELLEE
                                     ALLEN KELLER CO. I LLC



                       CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned hereby certifies that
according to the word count function of the computer program used to generate the
document, the portions of the Appellee's Brief subject to the rule contain 4,049
words total and that the text thereof is in 14 point Times New Roman font.

                                     /s/ Erik Wollam
                                     ______________________________
                                     Erik R. Wollam




                                       18
                        CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Appellee's Brief was served on the
following counsel by electronic filing and email on the 30th day of December,
2014:

                  Michael G. Sawicki
                  Sawicki Law
                  4040 N. Central Expressway, Ste. 850
                  Dallas, Texas 75204

                  Charles E. Soechting (local counsel)
                  The Soechting Law Firm
                  3331 Ranch Road 12, Suite 107
                  San Marcos, Texas 78666

                                     /s/ Erik Wollam
                                     ______________________________
                                     Erik R. Wollam




                                       19
                          APPENDIX

A.   Summary Judgment Order signed by the Trial Court on June 9, 2014
     (CR 304 – 307).

B.   Letter dated May 28, 2014, from the Trial Court (CR 302 – 303)

C.   Pages cited in this Brief from the Deposition of Casey White
     (President of C&B White, Suarez’s employer)

D.   Pages cited in this Brief from the Deposition of Robert Moreno
     Castillo (Crew leader of the C&B White crew on which Suarez
     worked)




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