                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-10-00406-CV


MELINDA POLK                                                    APPELLANT

                                         V.

NEW GREEN MEADOW, L.L.C.                                          APPELLEE


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           FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION1
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      Appellant Melinda Polk appeals the trial court’s order granting summary

judgment in favor of New Green Meadow, L.L.C. (New Green Meadow). We will

affirm.

                                 Background Facts

      Magnus Lofgren is the owner of New Green Meadow, who owns and

operates an apartment complex called Green Meadow Apartments (the

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          See Tex. R. App. P. 47.4.
Apartments).    In November 2007, Lofgren hired Fred Herrera to repair a

staircase in the complex. Specifically, Herrera had to remove and replace two of

the concrete steps. Herrera provided his own equipment, tools, and supplies.

The parties do not dispute that Herrera was an independent contractor.

      On the day Herrera was working at the Apartments, Polk went to visit a

friend who lived in the complex. Polk’s friend lived on the second floor, which

was accessible by the staircase being repaired. The staircase was not cordoned

off or otherwise blocked to prevent people using it. Herrera had removed some

steps halfway up the staircase, but Polk claims not to have noticed. Herrera

stood by the stairs ―working on something.‖       Herrera watched Polk near the

stairs, but believing that she was going into a first-floor apartment, turned back to

his work. Polk started up the stairs, ―looking straight ahead,‖ and fell through the

hole left by the removed steps.

      Polk sued New Green Meadow and Herrera. New Green Meadow filed a

traditional and no evidence motions for summary judgment.            It argued that

Herrera was an independent contractor, that Polk was injured by a dangerous

condition caused by Herrera’s work, and thus, New Green Meadow owed no duty

to Polk as a matter of law. The trial court granted New Green Meadow’s motion

and severed New Green Meadow from the case. This appeal followed.

                               Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the


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light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to

summary judgment on an affirmative defense if the defendant conclusively

proves all the elements of the affirmative defense.       Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b),

(c). To accomplish this, the defendant-movant must present summary judgment

evidence that conclusively establishes each element of the affirmative defense.

See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,

310 (Tex. 2009) (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.


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2006)).    If the nonmovant brings forward more than a scintilla of probative

evidence that raises a genuine issue of material fact, then a no-evidence

summary judgment is not proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex.

2009).

                                   Discussion

      In her first point, Polk argues that New Green Meadow retained control of

the premises while Herrera worked and thus owed Polk a duty to warn her of the

dangerous condition of the stairs. Generally, an owner does not have a duty to

see that an independent contractor performs his work in a safe manner.

Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). However, an owner

may be liable when he exercises control over the independent contractor’s work.

Id.; see also Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001)

(―The general contractor’s duty of care is commensurate with the control it retains

over the independent contractor’s work.‖). The right to control ―must be more

than a general right to order the work to start or stop, to inspect progress or

receive reports.‖ Redinger, 689 S.W.2d at 418. It includes ―the power to direct

the order in which the work shall be done, or to forbid it being done in a manner

likely to be dangerous.‖ Id. (quoting Restatement (Second) of Torts § 414, cmt. a

(1965)).

      There is no evidence that New Green Meadow retained control over the

staircase while Herrera worked on it. Lofgren stated in an affidavit that neither he

nor anyone else from New Green Meadow directed Herrera’s work. Neither was


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there evidence that Lofgren was overseeing Herrera or inspecting his work.

Further, there was no evidence that New Green Meadow knew or should have

known that Herrera was performing his work in an allegedly unsafe manner. See

Dow Chem. Co. v. Bright, 89 S.W.3d 602, 609 (Tex. 2002) (―This Court has

recognized that a general contractor has actually exercised control of a premises

when the general contractor knew of a dangerous condition before an injury

occurred and approved acts that were dangerous and unsafe.‖); cf. Koko Motel,

Inc. v. Mayo, 91 S.W.3d 41, 47 (Tex. App.—Amarillo 2002, pet. denied) (holding

that the right to control is irrelevant when, as in that case, the owner knew of the

dangerous condition).    The dangerous condition of the stairs (i.e., the hole

created by the removed steps) did not exist prior to Herrera’s work. Herrera had

done work for New Green Meadow before, and his work had been satisfactory. It

is undisputed that Lofgren was not near the staircase at the time of the fall, and

had to be notified of the incident at his office elsewhere on the complex. There is

no evidence that Lofgren had inspected the stairs while Herrera worked or that

anyone informed New Green Meadow that Herrera had not cordoned off the

staircase. Because there is no evidence that Lofgren retained the right to control

the staircase, and because an owner’s duty of care ―is commensurate with the

control it retains over the independent contractor’s work,‖ Lee Lewis Const., 70

S.W.3d at 783, there is no evidence that New Green Meadow owed Polk a duty

of care. The trial court therefore did not err in granting New Green Meadow’s

motion for summary judgment. We overrule Polk’s first issue.


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      In Polk’s second issue, she argues that there is a fact question as to

whether the dangerous condition was open and obvious, but whether the

condition was open and obvious is irrelevant.            New Green Meadow had

relinquished control of the premises and did not control Herrera’s work; it

therefore did not owe a duty to Polk for any condition created by Herrera’s work,

regardless of whether that condition was open and obvious. See Shell Oil Co. v.

Khan, 138 S.W.3d 288, 295 (Tex. 2004) (noting that an owner has no duty in

regards to defects created by an independent contractor’s work ―unless it retains

a right to control the work that created the defect‖); Abalos v. Oil Dev. Co. of

Tex., 544 S.W.2d 627, 631 (Tex. 1976) (―[W]here the activity is conducted by,

and is under the control of, an independent contractor, and where the danger

arises out of the activity staff, the responsibility or duty is that of the independent

contractor, and not that of the owner of the premises.‖). It is undisputed that the

condition did not exist prior to Herrera assuming control of the stairwell; thus,

New Green Meadow cannot be held liable under a duty to warn of a pre-existing

condition. See Shell Oil, 138 S.W.3d at 295 (―With respect to existing defects, an

owner or occupier has a duty to inspect the premises and warn of concealed

hazards the owner knows or should have known about.‖). We overrule Polk’s

second issue.




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                                  Conclusion

     Having overruled both of Polk’s issues, we affirm the trial court’s judgment.




                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: June 2, 2011




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