

Opinion
issued June 23, 
2011
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
In The
Court of
Appeals
For The
First District
of Texas
 

 

NO. 01-09-01089-CV
 

 

TRACY GRIFFIN, Appellant
 
V.
 
SHELL OIL COMPANY AND CH2M HILL IDC FACILITIES, Appellees
 

 

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause Nos. 2008-23788A-23788B
 

 

O P I N
I O N
Appellant, Tracy Griffin, challenges
the trial court’s rendition of summary judgment in favor of appellees, Shell
Oil Company (“Shell”) and CH2M Hill IDC Facilities, Inc. (“CH2M”), in Griffin’s
personal-injury suit against Shell and CH2M. 
In a single issue, Griffin contends that the trial court erred in
granting the summary-judgment motions of Shell and CH2M on his
negligent-activity and premises-defect claims. 
    
We reverse and remand.
Background
          In
his petition, Griffin alleged that in June 2007, while working as an employee
of CFI Mechanical, Inc., a subcontractor, he sustained personal injuries after tripping
and falling over a pallet, which had been “randomly” placed on a floor in
standing water in a poorly lit storage room in the basement of a building owned
by Shell.[1]  Employees of CH2M, which was the “project
manager” at the Shell building, and Constructors and Associates, Inc. (“C&A”),[2] another
contracting firm working at the Shell building, had instructed Griffin to go to
the storage room to inspect drainage issues. 
Griffin further alleged that both Shell and CH2M knew about the standing
water, dim lighting, and improperly stored and unsecured materials in the storage
room and had failed to adequately warn him of the conditions and provide
safeguards to prevent his injuries. 
Griffin asserted that Shell and CH2M were negligent in:
a.    
Failing to
observe job site safety, which caused injuries and damages to [Griffin];
 
b.    
Failing to
properly train its employees to avoid causing injuries to others on a job site,
including [Griffin];
 
c.     
Failing to warn
[Griffin] of the dangers that [Shell and CH2M] knew or should have known about associated
with [Griffin] working in [the basement];
 
d.    
Exercising
control over the work area and the activity in the area where [Griffin] was
working and failing to use ordinary care in ensuring [Griffin’s] safety; and
 
e.     
Failing to
provide a safe workplace for [Griffin].
 
Shell and CH2M generally denied
Griffin’s allegations.  In its summary-judgment
motion, Shell contended that there is no evidence of a premises defect or a concealed
defect in the storage room and, alternatively, that Griffin’s awareness of the
conditions in the storage room negated the existence of any legal duty that it owed
to Griffin.  In its summary-judgment
motion, CH2M contended that Shell controlled the storage room, CH2M had not
directed Griffin to the storage room, and it did not breach any legal duty owed
to Griffin.  It noted that both it and
Griffin had been involved in a “storm-mitigation project” to remove standing water
from the storage room and Griffin had previously inspected the room as part of
the project.      
In his response to Shell’s motion,
Griffin argued that because Shell controlled the storage room and knew that the
conditions therein presented an unreasonable risk of harm, it owed him a legal duty
to adequately warn him about the conditions and eliminate the risk.  In regard to Shell’s legal duties, Griffin
attached to his response the deposition testimony of Walter Boyd, Shell’s site
manager, who had admitted that his duties included the management, maintenance,
and safety of the storage room.  In regard
to Shell’s breach of its legal duties, Griffin attached to his response his own
deposition testimony regarding his previous complaints to both Boyd and Edna
Guy, CH2M’s project manager, about the unsafe conditions and another slip and
fall that had occurred in the storage room. 
In his testimony, Griffin noted that the storage room, known as the
“black hole” and “swamp,” was “bad, dark, wet, [and] piled up.”  As Griffin explained,
Oh, there would be a pallet of stuff moved in there
being all blocked off. You’d have to take a different route.  I mean, it would change. I don’t think it had
changed that much from the time I did the initial report from the time I got
hurt other than maybe a few pallets had been moved in there; but I mean, over
time, yeah, it just became—it got harder and harder to—because everybody is
moving their stuff.  Everybody—they was
having everybody move their stuff in there too. . . .
 
. . . .
 
It was dimly lit, very dimly lit.  It was wet. 
It was piled up full of every kind of piece of scrap junk that’s moved
off the floors, from metal bars to floor tiles to you name it.  It changed weekly.  You never walked in there and something
didn’t get—something wasn’t moved in there or something wasn’t moved
around.  You never know what you was
going to run into when you went in there, whether you was going to have a clear
path or you was going to have to go through the water.  I mean, there was constantly Shell or Pioneer
or [CH2M].
 
When describing his fall, Griffin stated,

I had just got in the room.  I wasn’t even half—the water usually is at
the back.  I turned the corner to go
around to the area that I knew where the drains were or were supposed to be,
and I slipped.  I slipped into a pallet—I
don’t know—with my left foot, which I tripped. 
I fell forward.  I grabbed these
panels that were stacked up against the column. 
Next thing I know, I’m trying to wrestle this panel from falling on me
without my feet coming out from under, out from underneath me, and it just
slams me.  It’s like I hit the floor; and
right before I hit the floor, the panel hits me and just slams me to the floor.
 
Griffin emphasized that he had warned
CFI employees about the conditions in the storage room and the conditions “changed
frequently.”  In support of his argument
that Shell had failed to warn him of both obvious and concealed dangers,
Griffin cited testimony that the room would “change” because the materials were
moved into it by multiple contractors and vendors and, as a result, “[y]ou
never knew what you [were] going to run into.”    
Moreover, Boyd’s testimony reveals that
the room had only “egress lighting” and there was not “task lighting” or
“enough lighting to actually do work in that room,” although he contended that
the storage room was not a “work area” and was instead only a “safe” “storage
area.”  Also, Boyd had known that workers
would have to survey the storage room for the storm mitigation project, but Shell
did not take any actions to correct the conditions in the storage room.  Shell could have instructed its contractors to
restack the stored materials and ordered CH2M to install more lighting or mats.
 In fact, after Griffin’s accident, Shell
had additional lighting and mats installed in the storage room.  
Griffin also attached to his response
the deposition testimony of Guy and Rollie Krunc, C&A’s project
manager.  Guy testified that Shell knew about
the dim lighting, standing water, and stored materials.  She also noted that, after Griffin’s injury,
Shell had paid to install mats and “[ran] some tape to make sure that the
people stayed on the mats.”  Krunc testified
that there were “some existing” “hazardous” conditions in the storage room and
a photograph of the storage room depicted “haphazard storing of materials.”  
In his response to CH2M’s motion, Griffin
argued that because CH2M had acted as Shell’s general contractor and controlled
both the premises and his work, it owed him the legal duties to warn him of and
protect him from the dangerous conditions, and it breached its duties by
sending him to the storage room without adequate warnings or protections.  In regard to CH2M’s control of his work,
Griffin attached to his response the deposition testimony of Guy, who admitted
that she was the “manager” for the storm mitigation project, CH2M “work[ed] for
Shell,” CH2M provided “project management” services at the Shell building and
“over[saw] all of the infrastructure and constructive changes,” Guy was the
“only project manager” at the time Griffin was injured, and, “if something was
going to be done” at Shell, she was “involved in it.”  Guy noted that Griffin would do things for
her upon request and she and Griffin had worked “closely together.”  CH2M controlled how Griffin got paid and when
and where he worked.  And CH2M would
oversee the work of C&A and give it directives.  However, Guy further testified that CH2M
never “actually managed” the Shell building and it was “always totally managed
by Shell.”  Although CH2M oversaw the
projects assigned to it, CH2M, at the time of Griffin’s injury, did not
“control” Griffin because he was “under” C&A and not CH2M “directly.”  Moreover, CH2M did not manage the storage room,
and it had not stored materials in the storage room.  
In regard to the relationship between
CH2M and C&A, Guy testified that, in some circumstances, CH2M would “go
through” C&A to have Griffin “do something,” but only if it was a project that
C&A was “in control of.”  Otherwise, Guy
could still “go directly” to Griffin. 
Guy explained that if C&A was involved in a project, she would
control or supervise Griffin’s work through C&A, but if Griffin was working
on a project without C&A’s involvement, Guy would control, supervise, and
contact Griffin directly.   
 Griffin also attached to his response his own
deposition testimony, in which he noted that he had given to Guy his original
report for the storm mitigation project, she had lost or misplaced the report,
and she then instructed Krunc to instruct Griffin to prepare another report, which
necessitated his trip to the storage room to verify the status of its drains.
Griffin reported to Guy “just about every day” on the status of projects that
he was doing for her, Guy was Griffin’s “person of contact for the mechanical”
and she “was over the mechanical,” Griffin had been instructed to direct all
concerns and problems to Guy as the “project manager,” and Griffin believed that
Guy was responsible for sending him to the storage room when he was injured.  In regard to CH2M’s exercise of control over
the storage room, Griffin noted that CH2M had instructed another contractor to
“move junk down there” and a vendor to “pile” wall partitions in the room.  He summarized that CH2M had “instructed” the
placement in the storage room of “just about every piece of equipment and junk
that was in there” and “CH2M was the one that told people to put it there.”
In regard to CH2M’s breach of its legal
duties, Guy testified that she was aware of the dim lighting, water, and possible
movement of materials in the storage room. 
Also, photographs of the storage room taken at the time of Griffin’s
injury depict dim lighting, water, and haphazardly stacked materials.  Photographs of the room taken after Griffin’s
injury depict better lighting and rubber mats on the floor.  Griffin also attached to his response a
“Purchase Agreement,” executed between CH2M and Shell, in which CH2M had agreed
to “take all necessary precautions to . . . protect the premises and all
persons and property thereon from damage or injury” and to “leave the premises
clean and free of all equipment, waste materials, and rubbish.” 
In its reply, Shell contended that
the evidence established that Griffin was aware of the conditions, which were
“common knowledge.”  In its reply, CH2M
contended that it was not a general contractor or property manager, Griffin was
not its employee, Griffin reported to his employer CFI, CFI did not work for
CH2M, CH2M did not control the storage room or Griffin’s work, and CH2M did not
direct Griffin to the storage room on the day of his injury.
After a hearing, the trial court
granted the summary-judgment motions of Shell and CH2M and dismissed Griffin’s
claims with prejudice.
Standard of Review
To prevail on a summary-judgment
motion, a movant has the burden of proving that it is entitled to judgment as a
matter of law and there is no genuine issue of material fact.  Tex. R.
Civ. P. 166a(c); Cathey v. Booth,
900 S.W.2d 339, 341 (Tex. 1995).  When a
defendant moves for summary judgment, it must either (1) disprove at least one
essential element of the plaintiff’s cause of action or (2) plead and
conclusively establish each essential element of its affirmative defense, thereby
defeating the plaintiff’s cause of action. Cathey,
900 S.W.2d at 341.  When deciding whether
there is a disputed, material fact issue precluding summary judgment, evidence
favorable to the non-movant will be taken as true.  Nixon
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).  Every reasonable inference must be indulged in
favor of the non-movant and any doubts must be resolved in its favor.  Id.
at 549.
To prevail on a no-evidence summary-judgment
motion, a movant must allege that there is no evidence of an essential element
of the adverse party’s cause of action or affirmative defense.  Tex.
R. Civ. P. 166a(i); Fort Worth
Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).  We review a no-evidence summary judgment
under the same legal sufficiency standard used to review a directed
verdict.  Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–33
(Tex. App.—Dallas 2000, no pet.).  Although
the non-movant is not required to marshal its proof, it must present evidence
that raises a genuine issue of material fact on each of the challenged
elements.  Tex. R. Civ. P. 166a(i); see
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).  A no-evidence summary-judgment motion may not
be granted if the non-movant brings forth more than a scintilla of evidence to
raise a genuine issue of material fact on the challenged elements.  See
Ridgway, 135 S.W.3d at 600.  More
than a scintilla of evidence exists when the evidence “rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.”
 Merrell
Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  When reviewing a no-evidence summary-judgment
motion, we assume that all evidence favorable to the non-movant is true and
indulge every reasonable inference and resolve all doubts in favor of the
nonmovant.  Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.—Houston [1st
Dist.] 2002, no pet.).
We note that a summary-judgment motion
must stand or fall on the grounds expressly presented in the motion.  Tex. R.
Civ. P. 166a; Cincinnati Life Ins.
Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.
1993).  “We are restricted to reviewing
the propriety of the granting of the summary judgment on the basis of the
grounds actually asserted in the motion for summary judgment.”  Cates,
927 S.W.2d at 626; Hendrix v. Port Terminal R.R. Ass’n, 196 S.W.3d 188, 201–02 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). It is reversible error to grant a
summary-judgment motion on a claim not addressed in the motion.  Chessher
v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983).  A trial court errs in granting more relief
than requested by disposing of issues not presented to it in the summary-judgment
motion.  Perry v. Greanias, 95 S.W.3d 683, 701 (Tex. App.—Houston [1st
Dist.] 2002, pet. denied).
Negligent-Activity Claims
          In
a portion of his issue, Griffin first argues that the trial court erred in
granting summary judgment in favor of Shell and CH2M on his negligent-activity
claims because neither Shell nor CH2M sought summary judgment on these claims.
          The
Texas Supreme Court has consistently recognized that negligent-activity claims and
premises-defect claims involve two independent “theories” of recovery that fall
within the scope of negligence.  See Gen. Elec. Co. v. Moritz, 257 S.W.3d
211, 214–15 (Tex. 2008) (distinguishing between “negligent-activity claim” or
“theory” and “premises-condition claim” or “theory”); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.
1997) (stating that there are “two types of negligence in failing to keep the
premises safe: that arising from an activity on the premises, and that arising
from a premises defect”); see also Mayer v. Willowbrook Plaza Ltd. Partnership,
278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating
that “[n]egligent activity and premises defect are independent theories of
recovery”).  Although “[t]he lines
between negligent activity and premises liability are sometimes unclear,” the
court has continued to recognize the distinction between these two claims,
explaining that “negligent activity encompasses a malfeasance theory based on
affirmative, contemporaneous conduct by the owner that caused the injury, while
premises liability encompasses a nonfeasance theory based on the owner’s
failure to take measures to make the property safe.”  Del
Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).  
Recovery on a negligent-activity claim
requires that the plaintiff have been injured by or as a contemporaneous result
of the “activity itself” rather than by a “condition” created by the
activity.  Olivo, 952 S.W.2d at 527; Keetch
v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).  Although an owner or occupier generally does
not owe a duty to ensure that an independent contractor performs its work in a
safe manner, an owner or occupier “who retains a right to control the contractor’s work may be held liable for negligence
in exercising that right” under the negligent-activity theory.  Moritz,
257 S.W.3d at 214 (emphasis added).
Shell
Shell argues that the trial court
properly granted it summary judgment on Griffin’s negligent-activity claim
because it asserted in its motion that it did not owe Griffin a legal duty and
Griffin did not adequately plead a negligent-activity claim.  In his petition, the majority of Griffin’s
allegations against Shell related to his premises-defect claim and the
conditions in the storage room.  However,
Griffin specifically alleged that Shell was negligent in “exercising control”
over the “activity in the area,” and, thus, he pleaded a negligent-activity claim
against Shell.
Nevertheless, Shell, in its summary-judgment
motion, characterized Griffin’s suit as “a premises liability case,” and it asserted
that Griffin had “allege[d] that Shell was negligent in several ways, all of which relate[d] to the condition[s]”
of the storage room. (Emphasis added.) Shell argued that it was entitled to summary
judgment under rule 166a(i) because “there is no evidence that there was a
premises defect.”  Alternatively, Shell
argued that that it was entitled to summary judgment under rule 166a(c) because
“the undisputed facts establish as a matter of law that Shell owed no duty to
Griffin.”  Shell generally asserted that
“there is no evidence” that “any Shell employee failed to observe job site
safety,” “Shell failed to properly train any employee,” the storage room was “a
job site or work area,” or Shell failed to provide Griffin a safe workplace.  
Shell did alternatively assert that the
evidence conclusively negated the existence of any legal duty that it owed to
Griffin, but, in its substantive no-duty arguments, Shell only targeted Griffin’s
premises-defect claim.  Specifically,
Shell argued that it could not be liable to Griffin because “there was no
concealed defect” and Griffin “was aware of all of the conditions” in the
storage room.  Shell asserted that “the
conditions in the [storage] room were common knowledge” and Griffin was
familiar with the storage room.  Shell contended,
thus, that the evidence “disprove[d] as a matter of law that Shell owed Griffin
a duty with respect to the conditions.” 
In the conclusion of its motion, Shell again asserted that Griffin, in
his fifteen years of work at the Shell building, was “well aware that there was
often standing water [in the storage room] . . . , that it was dimly lit, and
that there were piles of materials stored there that might cause a trip
hazard.”
Based upon the plain language of
Shell’s motion, we conclude that Shell sought summary judgment, both under rule
166a(c) and rule 166a(i), only on Griffin’s premises-defect claim.[3]  Accordingly, we hold that the trial court
erred in granting Shell summary judgment on Griffin’s negligent-activity claim.[4]  See Hendrix,
196 S.W.3d at 201–02 (holding that trial court erred in granting summary
judgment on plaintiff’s negligence cause of action because defendant had failed
to address other “specific allegations” of negligence in petition); Perry, 95 S.W.3d at 700–01 (stating that
although non-movant’s factual allegations “were clearly stated” in petition,
movant had “failed to offer any arguments or summary judgment evidence” that
“precluded either liability or suit based on these allegations”).  
CH2M
Similar to his allegations against
Shell, Griffin pleaded a negligent-activity claim against CH2M, alleging that
CH2M was negligent in “exercising control” over the “activity in the
area.”  Similar to Shell, CH2M, in its
summary-judgment motion, characterized Griffin’s suit as a “premises liability
case,” asserting that although Griffin had “attempt[ed] to frame [his] claims .
. . as a negligence/negligent activity claim,” “it is clear that [Griffin’s]
allegations arise solely from an alleged condition of the premises and sounds
in premises liability rather than simple negligence.”  CH2M then set forth the elements of a
premises-defect claim, and it did not address the elements of a
negligent-activity claim.  In support of
its motion, CH2M relied upon evidence that it was not a possessor of the
premises, it did not control the premises, and, even if it was a possessor of
the premises, it had inspected the premises and “fulfilled any duty to warn
[Griffin] of conditions” in the storage room.
Based upon the plain language of
CH2M’s motion, we conclude that CH2M sought summary judgment only on Griffin’s
premises-defect claim.  Accordingly, we
hold that the trial court erred in granting CH2M summary judgment on Griffin’s
negligent-activity claim.  See Hendrix, 196 S.W.3d at 201–02; Perry, 95 S.W.3d at 700–01.
We sustain the portion of Griffin’s
issue in which he contends that the trial court erred in granting summary
judgment on his negligent-activity claims against Shell and CH2M.


 
Premises-Defect Claims
 
In another portion of his issue, Griffin argues that the trial court
erred in granting summary judgment in favor of Shell on his premises-defect
claim because Shell had legal duties to “exercise care with respect to matters
over which it exercised control,” “take reasonable precautions,” and warn him about
hidden dangers; and Shell did not conclusively establish that it had exercised
proper care, the defects were not concealed, Griffin “had full knowledge of the
dangers,” or Shell “had adequately warned” him.
Griffin further argues that the trial
court erred in granting summary judgment in favor of CH2M on his
premises-defect claim because CH2M, as a general contractor in control of the
premises, owed him a legal duty to use reasonable care to make and keep the
premises safe and it breached its legal duty. 

There are two types of premises
defects for which an independent contractor’s employee may seek to hold a premises
owner or general contractor liable.  Olivo, 952 S.W.2d at 527.  The first category includes those defects that
exist on a premises when a business invitee enters for business purposes or are
created through some means unrelated to the activity of the injured employee or
his employer.  Id.; Shell Chem. Co. v. Lamb,
493 S.W.2d 742, 746 (Tex. 1973).  When
dangerous conditions do not arise through the independent contractor’s work
activity, the owner or general contractor has a duty to inspect the premises
and warn about the dangerous conditions of which the owner or general
contractor knows or should know.  Moritz, 257 S.W.3d at 214–15; Olivo, 952 S.W.2d at 527.  An independent contractor is “under no duty
to inspect the premises for concealed
dangers” because independent contractors may “anticipate” that the owner or
general contractor “will discharge [its] duty to inspect the premises and warn
of any dangerous condition which is not open
and obvious.”  Lamb, 493 S.W.2d at 746 (emphasis added); see also Moritz, 257
S.W.3d at 215 (stating that “[g]enerally, a landowner is liable to employees of
an independent contractor only for claims arising from a pre-existing defect
rather than from the contractor’s work, and then only if the pre-existing
defect was concealed”).  The rationale
for this duty is that the owner or general contractor is in a “superior
position to know of or discover hidden
dangerous conditions on his premises.”[5]  Lamb,
493 S.W.2d at 746 (emphasis added).
The second category of premises
defects includes those defects an independent contractor, or its injured
employee, create by its work activity.  Dow Chem. Co. v. Bright, 89 S.W.3d 602,
606 (Tex. 2002); Olivo, 952 S.W.2d at
527.  When the independent contractor
creates a dangerous condition, the owner or general contractor ordinarily has
no duty to warn the independent contractor’s employees of the premises defect.  Olivo,
952 S.W.2d at 527. The rationale for this rule is that an owner or general
contractor normally has no duty to ensure that an independent contractor
performs its work in a safe manner.  Id.
In explaining why, under the first
category, the duty owed by a premises owner or general contractor to an
independent contractor is limited to concealed hazards, the Texas Supreme Court
has recently explained that because an independent contractor “owes its own
employees a nondelegable duty to provide them a safe place to work, safe
equipment to work with, and warn them of potential hazards,” a premises owner
that “hires an independent contractor generally expects the contractor to take
into account any open and obvious premises defects in deciding how the work
should be done, what equipment to use in doing it, and whether its workers need
any warnings.”  Moritz, 257 S.W.3d at 216–17. 
The court reasoned that “[p]lacing the duty on an independent contractor
to warn its own employees or make safe open
and obvious defects ensures that the party with the duty is the one with
the ability to carry it out.”  Id. (emphasis added).  
In Moritz, an independent contractor, on a daily basis, loaded
trailers with supplies from a General Electric warehouse.  Id.
at 213–14.  Moritz, the independent
contractor, sustained personal injuries in the course of securing the supplies after
a rubber bungee cord that he was using broke and he fell off the side of a
loading ramp.  Id.  Based upon the absence
of handrails on the loading ramp, Moritz brought a premises-defect claim
against GE.  Id. at 215.  The court,
noting that the absence of handrails was “obviously a pre-existing condition
and obviously not a concealed hazard,” concluded that GE had “no duty to warn
Moritz that a ramp [that] he had been using for more than a year had no
handrails.”  Id. at 216.  Although the
court acknowledged that GE, as the premises owner, “had a duty to exercise care
with respect to matters over which it exercised control,” it reasoned that Moritz’s
premises-defect claim failed because GE “did not control where or how Moritz
chose to secure his load.”  Id. at 217.  The court noted that “independent contractors
are hired for special projects that often entail special expertise, and can be
expected to use whatever equipment or precautions are necessary so long as a
hazard is not concealed.”  Id.
(emphasis added).
Shell
Citing Moritz, Shell argues that the trial court properly granted summary
judgment on Griffin’s premises-defect claim on the ground that it owed no legal
duty to him because Griffin presented no evidence of a “concealed defect” in
the storage room and, alternatively, he was “aware of all the conditions of
which he complained,” negating the existence of a concealed defect as a matter
of law.
Griffin did generally complain of
defects he knew about, i.e., standing or accumulated water and dim lighting
that was inadequate for the work that he was performing.  Significantly, however, he also complained of
haphazard storage and the stacking of materials or “junk” that changed
frequently as a result of multiple vendors and contractors using the room for
storage.  Boyd agreed that Shell had retained
control over the storage room, and the evidence demonstrated that Shell, after
Griffin was injured, took measures to address its defects, including restricting
access to the storage room, providing for improved organization of the room,
and placing mats in the wet areas of the room. 
Thus, there is evidence that Shell did, in fact, exercise control over
the storage of materials in the storage room as well as the lighting and the
manner of storage.  
Additionally, Griffin testified that
the room would “change” and one “never knew what [one] was going to run into
when [one] went” into the storage room.  He
noted that pallets would be moved, the storage of different items over time
would require a person walking through the room to use different “routes,” and
“they [were] having everybody move their stuff” into the storage room.  Griffin explained that the room was “piled up
full of every kind of piece of scrap junk . . . from metal bars to floor tiles
to you name it” and that “it changed weekly.” 
In regard to his fall and injuries, Griffin “slipped into a pallet,” tripped
and fell forward, and then grabbed “panels that were stacked up against the
column.”  These panels fell on him and “slam[med]
him to the floor.”  
Although Shell did present evidence
that Griffin was aware of the general dangers that existed in the storage room,
Griffin presented evidence that the specific defects were ever-changing.  Thus, unlike the plaintiff in Moritz, Griffin was not faced with
specific obvious hazards that he already knew about.  Resolving all doubts, as we are required to
do, in the non-movant’s favor, we conclude that, based upon the record before
us, there remains a fact issue as to whether the specific conditions that
actually caused Griffin’s fall and injuries can be described as “concealed” or “hidden.”  In sum, on this record, we simply cannot say,
as a matter of law, that concealed defects did not cause Griffin’s fall and injuries.  Accordingly, we hold that the trial court
erred in granting summary judgment on Griffin’s premises-defect claim against
Shell.  See Moritz, 257 S.W.3d at 218.
To the extent that Shell, in oral
argument, asserted that there was no “pre-existing” defect in the storage room,
we note that Griffin’s premises-defect claim against Shell is based upon his
factual allegations and supporting testimony that the conditions and storage of
materials in the storage room often changed and, at the time of his injury, he
was not aware of the specific defects that caused his fall and injuries.  Thus, as noted above, there is at least a
fact issue as to whether the materials that caused his fall and injuries were “hidden”
or “concealed.”  Moreover, Griffin
presented evidence that Shell controlled the storage room, the storage of
materials, and the general conditions therein. 
His point is that because Shell was aware of the haphazard storage of
different materials in the storage room and had control over it, Shell had a
legal duty to inspect the storage room and warn him of concealed defects or
make it a safe room in which to work.  
If an independent contractor is
injured by a concealed defect that is not created by his work activity and the
premises is controlled by an owner or occupier, the owner or occupier has a legal
duty to, among other things, inspect the premises and warn of dangerous
conditions of which the owner or occupier knows or should know and, thus, Texas
law permits the contractor to pursue a premises-defect claim against the owner
or occupier.  See Olivo, 952 S.W.2d at
527 (explaining that “first category” of premises-defect claims “are those
defects that exist on the premises when the business invitee entered . . . or that are created through some means
unrelated to the activity of the injured employee or his employer”)
(emphasis added).  Thus, we do not
interpret the majority opinion in Moritz
to bar Griffin’s premises-defect claim as asserted by Shell.  Accordingly, we hold that the trial court
erred in granting Shell summary judgment on Griffin’s premises-defect claim.
CH2M
CH2M asserts that Griffin “cannot
create a genuine issue of fact regarding [its] control [of the storage room]
based on testimony that merely suggests [it had] control,” it was not a
“general contractor,” its contract with Shell did not grant “CH2M the right or
obligation to control the premises,” and it did “not actually control the
premises.”
The legal duty owed by a general
contractor to employees of its subcontractor is that duty owed by an occupier
of land to a business invitee.  Lamb, 493 S.W.2d at 746.  As explained above, the employee of an
independent contractor may seek to hold the general contractor, like the
premises owner, liable for premises defects “that exist on the premises when
the business invitee entered for business purposes or that are created through
some means unrelated to the activity of the injured employee or his
employer.”  Olivo, 952 S.W.2d at 527; Lamb,
493 S.W.2d at 746.  In this situation, in
which the dangerous condition does not arise through the independent
contractor’s work activity, the owner or general contractor has a legal duty to
inspect the premises and warn the invitee of those dangerous conditions of
which the owner or general contractor knows or should know.  Olivo,
952 S.W.2d at 527.  This legal duty is
based upon the “right of control.”  See id. at 528 (stating that “[f]or the
general contractor to be liable for negligence, its supervisory control must
relate to the condition or activity that caused the injury”).
          Here,
Griffin presented evidence that CH2M had contractually agreed to require
subcontractors to, among other things, take all necessary precautions to
protect the premises and all persons thereon from damage or injury, and CH2M
further agreed to leave the premises “clean and free of all equipment, waste
material, and rubbish.”  Moreover,
Griffin testified that CH2M had control over the conditions in the storage room
and CH2M had instructed other subcontractors to store and “pile” “junk” in the
storage room.  Griffin explained that he
reported to Guy “just about every day,” which would support an inference that
CH2M was acting in the capacity of a general contractor and had control over
the conditions of the storage room.  The
testimony provided by Krunc of C&A would also support an inference that
CH2M was acting as a general contractor at the time of Griffin’s injury.    
          In
addition to Griffin’s testimony about CH2M’s actual control over the conditions
in the storage room, Guy testified that CH2M provided “project management”
services at the Shell building and “over[saw] all of the infrastructure and
constructive changes.”  Guy agreed that
she was the “only project manager” for a period of time that included the date
on which Griffin was injured.  She also explained
that, “if something was going to be done” at Shell, she was “involved in
it.”  Although CH2M cites conflicting
testimony as to its actual role at the time of Griffin’s injury, and although
Boyd testified that Shell “controlled” the storage room, Griffin has cited
evidence that CH2M also had control over the conditions in the storage
room.  
          The
Texas Supreme Court has explained that “[w]hen a hidden dangerous condition
exists on premises under the control of a general contractor at the time a
subcontractor enters, or exists through some means other than the
subcontractor’s work activity on the premises, the general contractor’s duty to
its business invitee/subcontractor and the employees of that subcontractor may
be discharged by an adequate warning to the subcontractor or one supervising
his work.”  Lamb, 493 S.W.2d at 747.  If CH2M
was acting as a general contractor and retained or exercised control over the
conditions in the storage room that caused Griffin’s injury, it necessarily
follows that CH2M owed Griffin a legal duty in regard to any hidden, dangerous
conditions.  See id.
Our discussion above about Griffin’s premises-defect
claim against Shell applies equally to Griffin’s premises-defect claim against
CH2M.  Resolving all doubts, as we are
required to do, in favor of Griffin, the non-movant, we conclude that there is
some evidence that CH2M had a legal duty to, among other things, warn Griffin
of the hidden or concealed conditions in the storage room arising from the
storage and stacking of unsecured materials or “junk.”  Accordingly, we hold that the trial court erred
in granting summary judgment in favor of CH2M on Griffin’s premises-defect
claim.
We sustain the remaining portion of
Griffin’s issue, in which he argues that the trial court erred in granting
summary judgment in favor of Shell and CH2M on his premises-defect claims. 
Conclusion
          We
reverse the trial court’s judgments in favor of Shell and CH2M on Griffin’s
premises-defect and negligent-activity claims, and we remand for further
proceedings consistent with this opinion. 
  
 
 
Terry Jennings
Justice
 
Panel consists of Justices Jennings, Higley,
and Brown.
 




[1]           Griffin, who had been working at the
Shell building since 1991, explained that he worked at the Shell building
ninety-five percent of his time on the job and every day of the work week.
 


[2]           The trial court severed Griffin’s
claims against C&A into a separate cause, and C&A is not a party to
this appeal.


[3]           We recognize that Griffin, in his
response to Shell’s summary-judgment motion, referred to case law related to a
negligent-activity claim, and he argued that Shell had retained the right to
control his work and exercised that right. 
However, Griffin’s response did not expand the scope of the grounds on
which Shell sought summary judgment.   
 


[4]           A
legal duty must be established in order for Griffin to ultimately recover on
his negligent-activity claim.  General Elec. Co. v. Moritz, 257 S.W.3d
211, 214 (Tex. 2008).  Here, however,
Shell, in its summary-judgment motion, confined itself to obtaining summary
judgment on Griffin’s premises-defect claim. 
Accordingly, we do not address the viability of Griffin’s
negligent-activity claim against Shell.


[5]           When a hidden, dangerous condition
exists on a premises at the time an independent contractor enters, or when it “exists
through some means other than the [independent contractor’s] work activity on
the premises,” the owner’s or general contractor’s duty to an independent
contractor and its employees “may be discharged by an adequate warning to the [independent
contractor] or one supervising his work.” 
Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex. 1973).


