Opinion issued September 23, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-13-00108-CV
                            ———————————
                         IRIS GONZALEZ, Appellant
                                        V.
  DIVERSICARE LEASING CORP., D/B/A AFTON OAKS NURSING
 CENTER A/K/A AFTON OAKS NURSING AND REHAB CENTER AND
          DIVERSICARE AFTON OAKS, LLC, Appellees



                   On Appeal from the 164th District Court
                            Harris County, Texas
                      Trial Court Case No. 2012-26341



                          MEMORANDUM OPINION

      Iris Gonzalez appeals the trial court’s dismissal of her lawsuit for failure to

file an expert report as required by the Texas Medical Liability Act (TMLA). See
generally TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.001–.507 (West 2011 & West

Supp. 2014). Gonzalez was employed at a nursing home, and she sued her

employer after she “tripped over crates on a pathway for employees” and as a

result “sustained personal injuries.” In a single appellate issue, Gonzalez argues

that the trial court erred by dismissing her case with prejudice because her claim

was for “ordinary negligence” and not related to health care. Our resolution of this

appeal is controlled by this court’s recent decision in Williams v. Riverside General

Hospital, Inc., No. 01-13-00335-CV, 2014 WL 4259889 (Tex. App.—Houston [1st

Dist.] Aug. 28, 2014, no pet. h.), which held that “a garden-variety slip-and-fall

claim that is completely untethered from the provision of health care” cannot

constitute a health care liability “safety” claim. Id. at *7. Accordingly, we reverse

and remand for further proceedings.

                                    Background

      Iris Gonzalez was employed at a nursing home known as Afton Oaks.

Shortly after arriving at work one evening, she exited the building to move her car.

A co-worker had stacked empty milk crates in the dimly lit path used by

employees to enter and exit the building. Gonzalez stumbled over the milk crates

and fell to the ground, sustaining injuries. She sued her employer, * alleging that it


*
      In her original petition, Gonzalez alleged that she was an employee of two
      separate companies, Diversicare Leasing Corp. (d/b/a Afton Oaks Nursing
      Center and a/k/a Afton Oaks Nursing and Rehab Center) and Diversicare

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was a non-subscriber under the Texas Workers’ Compensation law, and that it was

liable for the following acts and omissions:

      a. Failing to provide a safe place to work;

      b. Failing to adequately establish and enforce safety rules and
         regulations;

      c. Failing to eliminate unsafe methods and operations;

      d. Failing to provide warning signs to employees;

      e. Failing to warn employees of dangerous conditions on its
         premises;

      f. Failing to eliminate dangerous conditions on its premises;

      g. Creating dangerous conditions on its premises;

      h. Failing to properly supervise its employees, agents, and/or
         representatives;

      i. Failing to properly       train   its   employees,   agents,   and/or
         representatives; and

      j. Failing to hold safety meetings and/or posting safety rules.

      Afton Oaks argued that Gonzalez’s claim was a health care liability claim

because she had sued a nursing home and alleged departures from accepted

      Afton Oaks, LLC, both of which she identified as her employers. In a
      verified denial, the Afton Oaks entities alleged a defect in the parties as
      claimed by Gonzalez. They contend that Gonzalez’s employer at the time of
      her alleged injuries was Diversicare Afton Oaks, LLC d/b/a Afton Oaks
      Nursing Center, and that this entity operated the nursing home where
      Gonzalez worked. The defendants further contended that Diversicare
      Leasing Corp. was not Gonzalez’s employer and did not own or control the
      premises of the nursing home. For purposes of this opinion, we refer to the
      appellees simply as “Afton Oaks.”

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standards of safety. In addition, because Gonzalez failed to serve an expert report

within the 120-day deadline, Afton Oaks sought dismissal with prejudice and an

award of attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)–(c).

The trial court granted the motion to dismiss, and Gonzalez appealed.

                                        Analysis

      In her sole issue, Gonzalez argues that the trial court erred in concluding that

her claim was a health care liability claim because the acts of which she complains

were not directly related to health care. Afton Oaks does not argue that her alleged

injuries related to health care; rather, it argues that Gonzalez asserted a “safety”

claim which required dismissal for failure to file an expert report. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 74.001(a)(13) & 74.351(b), (r)(6) (West Supp.

2014). We review such a claim for abuse of discretion. See, e.g., Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). To the extent

the characterization of a claim as a health care liability claim hinges on an

interpretation of a statute or its application to established facts, that is a question of

law which we review de novo. See Tex. W. Oaks Hosp., L.P. v. Williams, 371

S.W.3d 171, 177 (Tex. 2012).

      There is no dispute that Gonzalez was claiming that she was injured as a

result of the nursing home’s negligent acts, see TEX. CIV. PRAC. & REM. CODE

ANN. § 74.001(a)(2) (defining “claimant”), or that the nursing home was a health



                                            4
care provider under the statute, see id. § 74.001(a)(11)(J), (12)(A)(vii). Therefore

our focus is on only the second element, i.e. whether the claim or claims at issue

must concern treatment, lack of treatment, or a departure from accepted standards

of medical care, or health care, or safety or professional or administrative services

directly related to health care. Gonzalez argues that her claims were for ordinary

negligence, were unrelated to health care, and therefore were not health care

liability claims. Afton Oaks argues that this case involves a departure from

standards of safety and is controlled by the Supreme Court’s holding in Texas West

Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012), which stated that a

“safety claim” need not be directly related to health care in order to qualify as an

HCLC under the TMLA.

      A similar issue involving safety claims and the application of Texas West

Oaks was very recently decided by another panel of this court. In Williams v.

Riverside General Hospital, the plaintiff was a nursing assistant who sued her

hospital employer for personal injuries arising from two on-the-job incidents:

tripping over an extension cord left out by a co-worker, and slipping on a hospital

floor due to a substance emitted by “a leaky piece of lab equipment.” Williams,

2014 WL 4259889, at *1. The Williams v. Riverside panel distinguished Texas

West Oaks and held that “there must . . . be some indirect, reasonable relationship

between claims and the provision of health care” for such claims to be health care



                                         5
liability claims. Id. at *7. The panel further reasoned that a personal-injury claim

arising from tripping on an extension cord “is a garden-variety slip-and-fall claim

that is completely untethered from the provision of health care,” and that “[t]he

same holds true” for the claim based on slipping on the hospital floor. Id.

      In this case, Gonzalez alleged that Afton Oaks was negligent for failing to

take specific actions to establish, provide, and maintain a safe work environment

for its employees. To the extent that the gravamen of her claims invokes her

employer’s liability for a co-worker’s placement of empty milk crates in a dimly lit

path on the premises of a nursing home, this case is indistinguishable from

Williams insofar as her claim may be characterized as a “garden-variety” personal

injury claim “that is completely untethered from the provision of health care.” Id.

As such, it does not qualify for the “safety” category of health care liability claims,

and the trial court erred by dismissing her claims with prejudice. See id.

                                     Conclusion

      We sustain Gonzalez’s sole issue. We reverse the judgment of the trial court

and remand the case for further proceedings.

                                   PER CURIAM

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.




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