                            NUMBER 13-08-00739-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOSE VARGAS,                                                                 Appellant,

                                           v.


COMMERCIAL BUILDING SYSTEMS
OF McALLEN, LTD.,                                                            Appellee.


  On appeal from the 370th District Court of Hidalgo County, Texas.



                        MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza

      Appellant, Jose Vargas, challenges the trial court’s summary judgment in favor of

appellee, Commercial Building Systems of McAllen, Ltd. (“CBS”), in a case pertaining to

injuries that Vargas received while performing concrete testing at a construction project.

By two issues, Vargas contends that the trial court erred in granting CBS’s summary

judgment motions because: (1) there was probative summary judgment evidence that CBS
controlled the means, methods, and manner of his work; and (2) he raised a genuine issue

of material fact regarding CBS’s liability for his injuries. We affirm.

                               I. FACTUAL AND PROCEDURAL BACKGROUND

         Vargas is a quality control technician for TSI Laboratories, Inc. (“TSI”). CBS, acting

as the general contractor, hired TSI to conduct quality control testing on a concrete pour

at a project involving the construction of an O’Reilly’s Auto Parts store in Pharr, Texas.1

On February 2, 2006, while conducting the concrete testing at approximately 5:00 a.m.,

Vargas slipped and fell from a pump truck and was injured.

         On April 5, 2007, Vargas filed suit against CBS, among others, contending that his

injuries were proximately caused by CBS’s negligence in failing to adequately illuminate

the project site.2 CBS filed its first amended original answer generally denying the

allegations contained in Vargas’s original petition and asserting various affirmative

defenses.

         Later, CBS filed a traditional motion for summary judgment, arguing that: (1)

general contractors do not have a general duty to ensure that independent contractors

perform their work in a safe manner; (2) CBS did not exercise control over Vargas’s work;

and (3) section 95.003 of the civil practice and remedies code precludes Vargas’s claims

against CBS. See TEX . CIV. PRAC . & REM . CODE ANN . § 95.003 (Vernon 2005).3


         1
             It is undisputed that TSI was an independent contractor on the construction project.

         2
             Vargas and CBS are the only parties to this appeal.

         3
              Section 95.003 of the civil practice and rem edies code provides that a prem ises owner is not liable
for the personal injury, am ong other things, to a contractor, subcontractor, or em ployee of either for the
construction, repair, renovation, or m odification of real property arising from the failure to provide a safe
workplace unless the prem ises owner exercises or retains som e control over the m anner in which the work
is perform ed, other than the right to order the work to start or stop or to inspect progress or receive reports.
T EX . C IV . P RAC . & R EM . C OD E A N N . § 95.003(1) (Vernon 2005). In addition, a plaintiff m ust also prove that the
prem ises owner actually knew of the dangerous condition that resulted in the injury and that the prem ises

                                                            2
        CBS subsequently filed a no-evidence motion for summary judgment, arguing that

the record contains “no evidence that CBS retained control over the manner, methods[,]

and means of Plaintiff’s work to impart liability on CBS for Plaintiff’s injuries.” Vargas filed

a response to CBS’s traditional and no-evidence motions for summary judgment, asserting

that his summary judgment evidence demonstrated that CBS exercised actual control over

the project and that CBS’s failure to provide adequate lighting violated several

Occupational Safety and Health Administration (“OSHA”) regulations. CBS filed an

amended traditional motion for summary judgment motion, addressing Vargas’s contention

that CBS violated several OSHA regulations.

        The trial court granted summary judgment in favor of CBS and ordered that Vargas

take nothing and CBS recover court costs. In its order, the trial court did not specify the

grounds upon which it granted summary judgment, or which summary judgment motion

was granted, but it did note that the judgment was final and appealable. This appeal

ensued.

                                     II. STANDARDS OF REVIEW

        We first review the granting of summary judgment based on the standards of rule

166a(i)—the rule governing no-evidence summary judgment motions. Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see TEX . R. CIV. P. 166a(i). Under rule

166a(i), the movant must allege that there is no evidence of a material element of the

adverse party’s claims. TEX . R. CIV. P. 166a(i); see Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex. 2002). While not required to marshal its proof, the nonmovant must

produce summary judgment evidence that raises a genuine issue of material fact.


owner failed to adequately warn of the danger. Id. § 95.003(2).

                                                    3
Ridgway, 135 S.W.3d at 600; Grant, 73 S.W.3d at 215.

       A genuine issue of material fact exists when there is more than a scintilla of

evidence produced to support the existence of the challenged element. Ridgway, 135

S.W.3d at 600. More than a scintilla of evidence is that amount of evidence that would

allow reasonable and fair-minded people to disagree in their conclusions. Id. at 601. If the

evidence only creates a mere surmise or suspicion of the fact, then the evidence is less

than a scintilla. Id. If Vargas, the nonmovant, produces more than a scintilla of evidence,

then we consider whether he has met the burden imposed by rule 166a(c)—the rule

pertaining to traditional motions for summary judgment. Id.; see TEX . R. CIV. P. 166a(c).

       Because a no-evidence motion for summary judgment is essentially a pretrial

directed verdict, we apply the legal sufficiency standard of review. King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Therefore, we consider the evidence “in

the light most favorable to the party against whom the summary judgment was rendered,

crediting evidence favorable to that party if reasonable jurors could, and disregarding

contrary evidence unless reasonable jurors could not.” Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 582 (Tex. 2006).

                                   III. APPLICABLE LAW

       In order to sustain a negligence cause of action, a plaintiff must produce evidence

of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages

proximately caused by that breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.

2006) (per curiam); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995). Whether a duty

exists is a threshold inquiry and a question of law; liability cannot be imposed if no duty

exists. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). The duty element of


                                             4
Vargas’s negligence claim is at issue in this case.

                                             IV. ANALYSIS

        In his first issue, Vargas asserts that the record contains probative summary

judgment evidence demonstrating that CBS controlled the means, methods, and manner

of his work; therefore, CBS owed him a duty to adequately light the work site.4 Vargas

further argues that summary judgment was improper because the summary judgment

evidence shows that CBS’s negligence proximately caused his injuries. CBS counters by

arguing that the summary judgment evidence establishes that: (1) it did not control the

means, methods, and manner of Vargas’s work; and (2) Vargas was the employee of an

independent contractor to which no duty was owed. CBS therefore contends that no issue

of material fact exists as to the control issue and that it was entitled to judgment as a

matter of law.

1. Vargas’s Premises Condition Claim

        Vargas alleged that CBS failed to provide adequate lighting for him to complete his

job. Generally, “[a] general contractor owes the same duty as a premises owner to an

independent contractor’s employee.” Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605-06

(Tex. 2002) (quoting Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per

curiam)). A premises owner may be liable to an independent contractor’s employees “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: ‘With respect to existing defects, an

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



        4
          In reviewing the record and Vargas’s argum ents on appeal, it appears that Vargas brought both a
negligent activity claim and a prem ises condition claim .

                                                    5
owner knows or should have known about.’” Gen. Elec. Co. v. Moritz, 257 S.W.3d 211,

215 (Tex. 2008) (citations omitted) (emphasis in original); see Coastal Marine Serv. of

Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999) (“[T]he premises owner has a

duty to inspect the premises and warn the independent contractor/invitee of dangerous

conditions that are not open and obvious and that the owner knows or should have known

to exist.”); Koch, 11 S.W.3d at 155; see also Ladner v. Temple-Inland Prods. Corp., No.

09-97-00231-CV, 1999 Tex. App. LEXIS 2795, at *4 (Tex. App.–Beaumont Apr. 15, 1999,

no pet.) (per curiam) (concluding that summary judgment was proper in a case where

appellant, an independent contractor, alleged that the general contractor and premises

owner failed to provide adequate lighting and sufficient barricades on a construction

project). Vargas’s claimed defect—inadequate lighting—was obviously pre-existing and

not a concealed condition.

       In support of his claims, Vargas attached the following, among other things, to his

response to CBS’s no-evidence motion for summary judgment: (1) two work orders

pertaining to the job; (2) several photographs of the pump truck from which he fell; (3) an

affidavit executed by Jason T. English, a licensed professional engineer and board certified

safety professional; and (4) deposition testimony of Joe Sakulenzki, the owner of CBS,

Ramiro Elizondo, CBS’s superintendent supervising the job, English, and Vargas himself.

       The first work order drafted by CBS was directed to TSI and indicated that the

project was to take place on February 2, 2006 at 5:00 a.m., while the second work order,

created by L&G Equipment,5 reflected that the project entailed a concrete pour of 252

yards and that the job began at 4:30 a.m. and concluded at 8:00 a.m. These work orders


       5
           L&G Equipm ent was another subcontractor on the project and is not a party to this appeal.

                                                     6
establish that the project commenced in the pre-dawn hours of February 2, 2006; thus,

lighting was needed to conduct the concrete pour. In his affidavit, English stated that “the

lighting provided at the work[]site in issue was inadequate, both in illumination output and

direction.”

       However, Vargas has not directed us to any evidence in the summary judgment

record establishing that the lighting of the work site constituted a concealed defect. CBS

only had a duty to warn Vargas of concealed defects that he might encounter in doing his

own work. See Moritz, 257 S.W.3d at 216. Common sense would dictate that the lighting

of a construction work site is an open and obvious condition. Therefore, Vargas has failed

to raise a fact issue regarding a concealed defect. See id.; see also Lawrence, 988

S.W.2d at 225. We therefore conclude that the trial court did not err in granting CBS’s no-

evidence motion for summary judgment with respect to Vargas’s premises condition claim.

2. Vargas’s Negligent Activity Claim

       Vargas also alleged a negligent activity claim, contending that CBS exercised

sufficient control of the “means, methods, and manner” of his job so as to require CBS to

provide adequate lighting while he was doing his job. Generally, a general contractor does

not have a duty to ensure that the independent contractor performs its work in a safe

manner, unless the general contractor retains some control over the manner in which the

work is done. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 355 (Tex. 1998) (per

curiam).6 A duty may arise if the general contractor has the right to control the means,


       6
           In Hoechst-Celanese Corp. v. Mendez, the suprem e court noted the following with respect to control:

       “In order for the rule stated in this Section to apply, the em ployer m ust have retained at least
       som e degree of control over the m anner in which the work is done. It is not enough that he
       has merely a general right to order the work stopped or resumed, to inspect its progress or
       to receive reports, to make suggestions or recommendations which need not necessarily be

                                                       7
methods, or details of the independent contractor’s work. See Shell Oil Co. v. Khan, 138

S.W.3d 288, 292 (Tex. 2004); Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803-04 (Tex.

1999). A general contractor’s right to control may be established through evidence of a

contractual agreement that explicitly assigns the right to control the subcontractor’s

employee’s work. Dow Chem. Co., 89 S.W.3d at 606; see Koch, 11 S.W.3d at 155; Elliott-

Williams, 9 S.W.3d at 804. The right to control may also be established if the evidence

demonstrates that the general contractor actually exercised control over the manner in

which the independent contractor’s work was performed. See Koch, 11 S.W.3d at 155.

A legal duty does not arise if there is no control over the work of the independent

contractor. Elliott-Williams, 9 S.W.3d at 803-04.

        Additionally, a general contractor is not subject to liability if it only retains the general

right to recommend a safe manner for the independent contractor’s employees to perform

their work. Koch, 11 S.W.3d at 155 (“[T]he comments to section 414 of the Restatement

[Second] suggest that merely exercising or retaining a general right to recommend a safe

manner for the independent contractor’s employees to perform their work is not enough

to subject a [general contractor] to liability . . . .” (quoting RESTATEMENT (SECOND ) OF TORTS

§ 414 (1965))).          “[R]equiring an independent contractor to ‘observe and promote

compliance with federal laws, general safety guidelines, and other standard safety

precautions [does] not impose an unqualified duty of care on [a premises owner] to ensure

that [an independent contractor’s employees do] nothing unsafe.” Koch, 11 S.W.3d at 156


        followed, or to prescribe alterations and deviations. Such a general right is usually reserved
        to em ployers, but it does not m ean that the contractor is controlled as to his m ethods of work,
        or as to operative detail. There m ust be such a retention of a right of supervision that the
        contractor is not entirely free to do the work in his own way.”

967 S.W .2d 354, 356 (Tex. 1998) (per curiam ) (quoting R ESTATEM EN T (S EC ON D ) OF T OR TS § 414 cm t. c (1965))
(em phasis added); see T EX . C IV . P RAC . & R EM . C OD E A N N . § 95.003.

                                                         8
(quoting Hoechst-Celanese Corp., 967 S.W.2d at 357-58). Safety requirements do give

rise to a narrow duty to ensure that the safety requirements and procedures do not

unreasonably increase the probability and severity of injury. Hoechst-Celanese Corp., 967

S.W.2d at 358.

      CBS argued in its no-evidence motion for summary judgment that Vargas failed to

provide evidence that CBS controlled the manner, methods, and means of Vargas’s work

done on the morning of the incident. We agree.

      In its no-evidence summary judgment motion, CBS stated that:

      Plaintiff [in his deposition] testified that his employer TSI directed his work in
      the following particulars:

      1. Telling [sic] Plaintiff where to go and what to do on a specific day;

      2. Provided all the equipment necessary for Plaintiff to do his work;

      3. Provid[ed] the facilities necessary for Plaintiff to do the job[; and]

      4. Provided Plaintiff the training and the details of how to do the work.

      Plaintiff further testified that CBS employees only told him how many
      concrete samples to take. Plaintiff testified that CBS employees never told
      him . . . where to take the samples from and provided him [with] no
      instructions on how to actually take the samples.

In his response to CBS’s no-evidence motion for summary judgment, Vargas asserted that

it was not necessary for CBS to control all aspects of his work. Instead, Vargas contended

that CBS controlled some aspects of his work, including the safety of the work site which,

therefore, imposed a duty on CBS to provide him with a safe workplace while he was

conducting the concrete testing.

      In the summary judgment record before us, there is no evidence that Vargas’s

duties were governed by a contract. Vargas again cites to the two previously mentioned

                                              9
work orders to suggest that CBS exercised control over his work; however, neither work

order stated that CBS exercised control over Vargas other than merely setting the schedule

for the job. See Hoechst-Celanese Corp., 967 S.W.2d at 356.

      Vargas also directs us to deposition testimony by Sakulenzki and English. In

particular, Vargas references the following statements made by Sakulenzki:

      Q: [Vargas’s counsel]       And part of that is you entrust your
                                  superintendents to make sure that the work is
                                  being done in a safe manner, right?

      A: [Sakulenzki]             Yes.

      Q:                          And Ramiro, you trust him to make the
                                  determination on whether something is
                                  dangerous.

      A:                          Yes.

             ....

      Q:                          He needs to monitor it [the job] and make sure
                                  he does it—that they do it right, contractors do it
                                  right.

      A:                          Yes.

      Q:                          Can you depend on Ramiro to control the—the
                                  detail of the work these contractors perform at a
                                  work site?

      A:                          Yes.

      Q:                          And you depend on Ramiro to instruct the
                                  contractors on how they do certain things, right?

      A:                          Some things, yes.

      Q:                          Would you expect Ramiro to stop a concrete
                                  pour if it was occurring in the dark with no lights?


                                           10
        A:                                Yes.

        Q:                                Do you think that he should have stopped it if
                                          that was the case?

        A:                                Yes.

                 ....

        Q:                                You think, looking back, that there should have
                                          been some lighting provided at this work site?

                 ....

        A:                                If it was poured at five o’clock in the morning, I
                                          would think there’d need to be some lighting.

        English generally alleged in his deposition testimony that CBS, as the general

contractor, had overall control over the job, including “all safety on the site and—including

adequate lighting.” English also described the lighting that should have been provided at

the work site.

        Viewing the summary judgment record in the light most favorable to Vargas, we find

that Vargas has failed to raise a material fact issue as to whether CBS controlled the

means, methods, and manner of Vargas’s job. See Mack Trucks, Inc., 206 S.W.3d at 582.

The questioning of both Sakulenzki and Elizondo did not yield an admission that CBS

controlled the means, methods, and manner of Vargas’s work.

        Moreover, in his deposition testimony, English speculates that CBS exercised

sufficient control over Vargas’s work so as to create a legal duty.7 In fact, English’s

statements about whether CBS exercised control over Vargas’s work were conclusory and,


        7
          But see Gen. Elec. Co. v. Moritz, 257 S.W .3d 211, 215-16 (Tex. 2008) (“An independent contractor
owes its em ployees a nondelegable duty to provide them with a safe place to work, safe equipm ent to work
with, and warn them of potential hazards. It also controls the details and m ethods of its own work, including
the labor and equipm ent em ployed.”) (em phasis added).

                                                     11
therefore, constituted improper summary judgment evidence. See Anderson v. Snider, 808

S.W.2d 54, 55 (Tex. 1991) (holding that conclusory statements made by an expert witness

is insufficient summary judgment evidence); see also Mercer v. Daoran Corp., 676 S.W.2d

580, 583 (Tex. 1984). Because the summary judgment record does not contain more than

a scintilla of evidence that CBS actually controlled the means, methods, and manner of

Vargas’s work, a fact issue was not raised on CBS’s duty to ensure that Vargas performed

the work in a safe manner. See TEX . R. CIV. P. 166a(i); Moritz, 257 S.W.3d at 214-15;

Koch, 11 S.W.3d at 155; Elliott-Williams, 9 S.W.3d at 803-04. Accordingly, we conclude

that the trial court did not err in granting CBS’s no-evidence motion for summary judgment

on Vargas’s negligent activity claim. Vargas’s first issue is overruled.

                                     IV. CONCLUSION

       Because we have concluded that the trial court did not err in granting summary

judgment in favor of CBS, we need not address Vargas’s second issue. See TEX . R. APP.

P. 47.1. Accordingly, we affirm the judgment of the trial court.


                                                    ________________________
                                                    DORI CONTRERAS GARZA,
                                                    Justice

Memorandum Opinion delivered and
filed this the 9th day of July, 2009.




                                            12
