      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00707-CV



                                       Pete Kent, Appellant

                                                 v.

        Scripps Texas Newspapers, L.P. d/b/a San Angelo Standard-Times, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
      NO. B-05-1527-C, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING



                            MEMORANDUM OPINION

               This is an appeal from a summary judgment granted in favor of appellee Scripps

Texas Newspapers, L.P., d/b/a San Angelo Standard-Times (“Scripps”) on appellant Pete Kent’s

claims for injuries suffered when he slipped on the bumper of his delivery truck at Scripps’s

distribution center in San Angelo. Scripps moved for traditional and no-evidence summary judgment

on the basis that it owed no duty to Kent, who was an independent contractor at the time of the

accident, and that it had no right to control Kent in performing the duties of his employment. In its

motion, Scripps also argued that there was no evidence of thirteen separate elements of Kent’s causes

of action. The trial court specifically granted summary judgment on the basis that Scripps owed no

legal duty to Kent. We will affirm the summary judgment.
                                          BACKGROUND

                Kent suffered injuries when, on a misty morning, his foot slipped on the bumper of

his delivery truck as he was climbing down from the trailer. The accident occurred after Kent

delivered a pallet of newspaper inserts to the Scripps facility. It is undisputed that when Kent

arrived, Scripps employees directed him to park his truck in an alley behind the facility and gave him

a hand-jack to move the pallet to the rear of the truck, where the pallet was then removed by a

Scripps forklift operator. After the actual delivery of the inserts was complete and the Scripps

employees were leaving the alley, but before Kent received a bill of lading, Kent slipped and fell

while exiting the back of his vehicle.

                In his original petition, Kent asserted that he suffered serious injuries “as a result of

a dangerous condition and/or activity” of which Scripps knew or should have known. He further

alleged that Scripps’s agents, servants, and employees negligently failed to provide the means for

Kent to descend his trailer, negligently or willfully allowed a dangerous condition or activity to

continue, and negligently or willfully failed to warn Kent of the dangerous condition or activity.

Although he does not identify precisely what dangerous condition or activity was the proximate

cause of his injuries, he presumably is referring to the wet bumper of his truck.

                According to his pleadings, Kent was “owed certain duties” when he entered the

premises for the purpose of delivering the pallet of inserts at Scripps’s invitation and for Scripps’s

benefit. He alleged that Scripps employees, acting within the scope of their employment, were

negligent in:




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       Failing to properly inspect and maintain the area in question to discover the
       dangerous condition and/or activity;

       Failing to maintain the area in a reasonably safe condition;

       Failing to give adequate and understandable warnings to Plaintiff of the unsafe
       condition and/or activity of the area;

       Failing to give warnings to Plaintiff of the unsafe condition and/or activity;

       Failing to provide the necessary equipment and materials;

       Failing to allow Plaintiff an area to unload his trailer; and

       Requiring Plaintiff to unload his trailer in an area not intended for trailers to be
       unloaded without providing the proper equipment, materials and warnings.


               Kent, in his response to Scripps’s motion for summary judgment, pointed to evidence

that Scripps and its employees directed him where to park his truck, told him to enter the trailer,

provided him with equipment to move the pallet to the back of the trailer, and generally “told him

what to do.” Kent urges that Scripps “simply had to provide [him] a ladder which was readily

available to climb down the ladder while it was raining,” but instead “put [him] in to a dangerous

situation and abandoned him.”

               The trial court granted Scripps’s motion for summary judgment on the basis that

Scripps owed Kent no legal duty. This appeal followed.


                                   STANDARD OF REVIEW

               We review a summary judgment de novo. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 156 (Tex. 2004). We review the evidence in the light most favorable to the

nonmovant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman,

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118 S.W.3d 742, 751 (Tex. 2003). We indulge all reasonable inferences and resolve any doubt in

the nonmovant’s favor. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).


                                              ANALYSIS

                Kent contends on appeal that the trial court erred in granting Scripps’s motion for

summary judgment because there were issues of material fact regarding Scripps’s control over Kent

and, thus, evidence that Scripps owed and breached a legal duty to Kent.

                “Generally, an owner or occupier does not owe a duty to ensure that independent

contractors perform their work in a safe manner.” General Elec. Co. v. Moritz, 257 S.W.3d 211, 214

(Tex. 2008). “But one who retains a right to control the contractor’s work may be held liable for

negligence in exercising that right.” Id. The right to control may be expressed by contract or implied

by conduct. Id.

                While the summary-judgment record contains no evidence that Kent’s duties were

governed by a contract, there was some evidence that Scripps controlled where Kent could park and

unload his truck and that it directed him to use a hand-jack to bring the pallet to the rear of his trailer.

Citing Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), Kent asserts that when

the evidence shows that a defendant retains “some control” over the manner in which the

independent contractor performs his work, this will give rise to a duty for the defendant to ensure

that the independent contractor performs in a safe manner.

                As the supreme court subsequently explained in Moritz, however,

        What we actually said in Lee Lewis (citing the Restatement of Torts and numerous
        opinions) was that a defendant’s duty “is commensurate with the control it retains
        over the independent contractor’s work.” Thus, it is not enough to show that the

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       defendant controlled one aspect of [the independent contractor’s] activities if his
       injury arose from another.


257 S.W.3d at 214 (emphasis in original).

               As in Moritz, the evidence in this case conclusively shows that the injury arose from

an activity over which the defendant exercised no control. Evidence that Scripps told Kent where

to unload his truck and how to position the pallet so that it could be unloaded does not relate to

whether Scripps also dictated how and when Kent should exit his trailer—the activity that Kent was

actually engaged in when he was injured. As an independent contractor, Kent was free to choose

how he would exit his own vehicle and the degree of caution to exercise when stepping down on a

bumper in wet conditions.

               The record contains no evidence that Scripps exercised control over Kent’s method

of exiting his vehicle, or that Scripps directed Kent to step down onto the wet bumper of his trailer,

rather than to remain inside until it stopped raining or to use some other means to climb down from

the trailer more carefully. Therefore, Scripps owed Kent no legal duty as a matter of law. We

overrule Kent’s issues.


                                          CONCLUSION

               Because the trial court correctly determined that Scripps owed no legal duty to Kent

as an independent contractor, we affirm the summary judgment.




                                               J. Woodfin Jones, Chief Justice

                                                  5
Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: March 19, 2009




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