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                                  MEMORANDUM OPINION

                                          No. 04-09-00451-CV

                                        Beatrice ESCAMILLA,
                                               Appellant

                                                    v.

                                  P.C. MAILING SERVICES, INC.,
                                             Appellee

                       From the County Court at Law No. 7, Bexar County, Texas
                                       Trial Court No. 310,793
                             Honorable David Rodriguez, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 7, 2010

REVERSED AND REMANDED

           Beatrice Escamilla worked as a line sorter for appellee P.C. Mailing Services, Inc. (“PCMS”).

On April 30, 2004, her coworker was operating a pallet jack to move a pallet of boxes. The

coworker hit Escamilla with the pallet jack and boxes, knocking her to the floor and causing her

injuries. Escamilla sued PCMS for negligence, alleging PCMS (1) failed to maintain the premises

in a safe and proper manner and/or (2) failed to remove, or properly warn of, the dangerous
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condition.1 PCMS filed a no-evidence motion for summary judgment, which the trial court granted.

In her sole issue on appeal, Escamilla argues the trial court erred in granting PCMS’s motion for

summary judgment because she presented more than a scintilla of evidence as to each of the

elements of her negligence claim. We reverse and remand.

                                     STANDARD OF REVIEW

        We review a trial court’s ruling on a motion for summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We review the evidence in the light

most favorable to the non-movant and disregard all contrary evidence and inferences. King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). If the trial court does not specify the ground

upon which it based its ruling, as in this case, we will affirm the summary judgment if any of the

grounds in the summary judgment motion can be sustained. See Dow Chem. Co. v. Francis, 46

S.W.3d 237, 242 (Tex. 2001) (per curiam). A court will sustain a no-evidence motion for summary

judgment when either (1) there is a complete absence of evidence of a vital fact, (2) the court is

barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital

fact, (3) the evidence conclusively establishes the opposite of the vital fact, or (4) the evidence

offered to prove a vital fact is no more than a mere scintilla. King Ranch, 118 S.W.3d at 751. Thus,

a no-evidence summary judgment is improperly granted if the respondent brings forth more than a

scintilla of probative evidence to raise a genuine issue of material fact. TEX . R. CIV . P. 166a(i); King

Ranch, 118 S.W.3d at 751. More than a scintilla of evidence exists if it would allow reasonable and

fair-minded people to differ in their conclusions. King Ranch, 118 S.W.3d at 751. Less than a


        … PCMS is a nonsubscriber under the Texas workers’ compensation law and is therefore
        1

responsible for work-related injuries under common law principles of negligence. See
Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 912 (Tex. App.—Beaumont 1999, pet. denied).

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scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise

or suspicion of a fact. Id.

                                          NEGLIGENCE

       To establish a claim for common law negligence, a plaintiff must produce evidence to

establish four elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and

(3) damages (4) proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454

(Tex. 2002). In its no-evidence motion, PCMS asserted there was no evidence to create issues of

fact for the elements of duty, breach of duty, and proximate cause.2 Thus, the burden shifted to

Escamilla to produce more than a scintilla of evidence to raise a genuine issue of material fact on

each of these elements. See TEX . R. CIV . P. 166a(i); Forbes Inc. v. Granada Biosciences, Inc., 124

S.W.3d 167, 172 (Tex. 2003).

A. Duty

       We first consider whether Escamilla presented more than a scintilla of evidence that PCMS

owed Escamilla a legal duty. Escamilla argues PCMS, among other things, owed her a duty to

provide a safe work environment. Although an employer is not an insurer of its employees’ safety,

an employer has a duty of ordinary care to provide a safe work place for employees. Exxon Corp.

v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993); see Heritage Manor, Inc. v. Tidball, 724 S.W.2d 952,

955 (Tex. App.—San Antonio 1987, no writ) (employer has primary, continuing and non-delegable

duty, in the exercise of ordinary care, to furnish employee with reasonably safe place to work). The

employer must, for example, (1) provide rules for the safety of employees, (2) furnish reasonably

safe machinery and equipment, and (3) exercise ordinary care to select careful and competent fellow


       2
           … PCMS does not dispute that Escamilla suffered damages.

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employees. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Barton v. Whataburger,

Inc., 276 S.W.3d 456, 461 (Tex. App.—Houston [1st Dist.] 2008, pet. filed).

       Here, Escamilla presented an Accident Summary Report completed by a PCMS supervisor,

which identifies Escamilla as a PCMS employee. She also presented a typed accident report signed

by her supervisor, which also indicates she was an employee. In short, Escamilla presented

uncontroverted evidence that she was an employee of PCMS, and her status as an employee of

PCMS gave rise to PCMS’s duty to exercise ordinary care in providing for her a safe workplace. See

LMC Complete Automotive, Inc. v. Burke, 229 S.W.3d 469, 476 (Tex. App.—Houston [1st Dist.]

2007, pet. denied) (employee status gives rise to employer’s duty to exercise ordinary care in

providing safe workplace). Therefore, Escamilla presented more than a scintilla of evidence that

PCMS owed her a duty of ordinary care in providing for her a safe work place.

B. Breach of Duty

       We next consider whether Escamilla presented more than a scintilla of evidence that PCMS

breached its duty to exercise ordinary care in providing a safe work place. From her deposition,

Escamilla presented the following testimony:

       [W]e were working on the line. I was sorting and we stopped to get more material
       and clean-up our areas, which we do every so often. And I was picking up the
       garbage and Monica, the—she was the machine operator, went to go get material.
       And she was coming back with a pallet full of material boxes and I was
       cleaning—picking up garbage so we could clear the area. And I picked up the
       garbage, and as I turned around, I seen her coming. She was kind of close and I
       looked at it, she was coming real fast. She was pushing it real fast and kind of
       smiling and I said, hey, you know, and I turned and she hit me. I tried to get out of
       her way and turned and she hit me and she knocked me down. Trash just flew up all
       over the place and I fell, landed on my elbow and my head and hit the concrete.




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       After reviewing the evidence in the light most favorable to Escamilla and disregarding all

contrary evidence and inferences, we conclude Escamilla’s deposition presented more than scintilla

of evidence that PCMS, through an employee acting within the course and scope of her employment,

breached its duty to use ordinary care by driving the pallet jack into Escamilla. See F.F.P. Operating

Partners, L.P. v. Duenez, 237 S.W.3d 680, 686 (Tex. 2007) (under doctrine of respondeat superior,

principal or employer may be vicariously liable for tortious acts of agent or employee if acts are

within course and scope of employment); cf. Wal-Mart Stores Texas, LP v. Crosby, 295 S.W.3d 346,

349, 352-53 (Tex. App.—Dallas 2009, pet. denied) (trial court found pallet jack operator breached

duty of reasonable care by driving jack into shopper); Wal-Mart Stores, Inc. v. Holguin, No.

09-99-00088-CV, 2000 WL 20703, at *1 (Tex. App.—Beaumont Jan. 13, 2000, no pet.) (not

designated for publication) (trial court found Wal-Mart negligent after employee-operated pallet jack

struck shopping cart which struck shopper); Brookshire Bros., Inc. v. Camp, No. 01-93-00001-CV,

1993 WL 471406, at *4 (Tex. App.—Houston [1st Dist.] Nov. 18, 1993, no writ) (holding employer,

through act of employee, breached duty of care when pallet jack operator caused jack to collide with

shopper’s cart, which caused cart to strike shopper; evidence gave rise to reasonable inference that

employee either lost control of pallet or did not keep proper lookout).

C. Proximate Cause

       Finally, we consider whether Escamilla presented more than a scintilla of evidence that

PCMS proximately caused her injuries. The Accident Summary Report she presented states she hurt

her right elbow and hit her head when she was “knocked to [the] floor by [a] pallet jack bumping

into her.” She also presented her deposition testimony, in which she explained how her coworker

knocked her down with the pallet jack, and as a result, she was diagnosed with a broken arm and a


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concussion. This evidence clearly amounted to more than a scintilla of evidence as to proximate

cause. In sum, Escamilla produced more than a scintilla of evidence to raise a genuine issue of

material fact on each of the elements required to sustain her negligence claim: duty, breach of duty,

and damages proximately caused by the breach. Therefore, we conclude the trial court erred in

granting PCMS’s motion for summary judgment.

                                         CONCLUSION

       We reverse the trial court’s judgment in favor of PCMS, and we remand the cause to the trial

court for further proceedings.



                                                       Sandee Bryan Marion, Justice




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