     Case: 14-10191      Document: 00512811360         Page: 1    Date Filed: 10/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10191
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 22, 2014
RONALD PARHAM,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellant
v.

RYDER SYSTEM, INCORPORATED, Previously Misnamed as Ryder Freight
System, doing business as Ryder Truck Rental and Leasing,

                                                 Defendant–Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                            U.S.D.C. No. 3:13-CV-923


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is an appeal of a personal-injury tort case under Texas law.
Plaintiff–Appellant Ronald Parham sustained injuries to his back and body
when he fell from a rental truck trailer at a distribution center. Parham sued
Defendant–Appellee Ryder System, Incorporated (Ryder System). Parham
alleged that Ryder System was his employer and that it provided him an



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-10191    Document: 00512811360     Page: 2   Date Filed: 10/22/2014



                                 No. 14-10191
unsafe workplace or unsafe equipment in violation of Texas tort law. The
district court granted Ryder System’s motion for summary judgment,
concluding that there was no genuine dispute of material fact whether Ryder
System was Parham’s immediate employer or whether it exercised control of
the rental truck from which Parham fell. We affirm.
                           I.   BACKGROUND
      In 2010, Parham sustained injuries to his knee, shoulder, back, and body
when he fell at the distribution facility of PrimeSource Building Products, Inc.
Parham was securing equipment to a delivery truck when he fell due to a four-
foot “difference between two levels of the truck which [he] had to go between
without any steps or a ladder to hold onto.” Parham further alleges that Ryder
System “was coordinating and controlling the site where [he] was injured,” and
was responsible “for safety on the site and supervision of the employee.”
      Ryder System insists that it did not possess, own, maintain, or control
the premises or the trailer upon which Parham was injured.            It further
maintains that it never had an employment relationship with Parham.
      Parham filed a lawsuit in state court asserting claims of negligence and
gross negligence. Ryder System removed the case to federal court and moved
for summary judgment.
      The district court granted Ryder System’s motion for summary judgment
because Parham’s evidence was “insufficient to raise an issue of fact as to
whether [Ryder System] was his immediate employer.” Specifically, the court
reasoned that, although Parham raised “a genuine issue of fact as to whether
[Ryder System] exercised some sort of control over Parham’s employment,” the
record on summary judgment “shows that [Ryder System] was not Parham’s
immediate employer.” Because “Parham fail[ed] to raise an issue of fact as to
whether [Ryder System] exercised control over the aspects of safety that led to
[Parham’s] injury,” the district court concluded that Parham failed to raise a
                                       2
    Case: 14-10191     Document: 00512811360      Page: 3   Date Filed: 10/22/2014



                                   No. 14-10191
genuine dispute of material fact as to whether Ryder System owed him a duty
to maintain a safe workplace or safe equipment.
      Parham timely appealed the district court’s decision granting Ryder
System’s motion for summary judgment.
         II.   JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction based on diversity of citizenship
because the parties are diverse and the amount in controversy exceeds $75,000.
See 28 U.S.C. § 1332(a). This Court has jurisdiction under 28 U.S.C. § 1291
to review the district court’s decision granting summary judgment. We review
a grant of summary judgment de novo. Coleman v. Hous. Indep. Sch. Dist.,
113 F.3d 528, 533 (5th Cir. 1997). Summary judgment is appropriate if “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
view all facts in the light most favorable to the nonmovant and draw all
reasonable inferences in the nonmovant’s favor. See Coleman, 113 F.3d at 533.
Even so, conclusory allegations will not defeat a properly supported motion for
summary judgment. Whelan v. Winchester Prod. Co., 319 F.3d 225, 228 (5th
Cir. 2003) (citing Fed. R. Civ. P. 56(e)).
      In this diversity case, we apply Texas substantive law. See Austin v.
Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014) (per curiam). “To determine
Texas law, this court looks first to the final decisions of the Texas Supreme
Court.” Id. If the Texas Supreme Court has not spoken on an issue, we “predict
how the Texas Supreme Court would decide the issue . . . by looking to the
precedents established by intermediate appellate courts.” Primrose Operating
Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 564–65 (5th Cir. 2004) (citation and
internal quotation marks omitted).




                                         3
    Case: 14-10191    Document: 00512811360      Page: 4   Date Filed: 10/22/2014



                                  No. 14-10191
                           III.   DISCUSSION
      Parham argues the district court’s decision granting Ryder System’s
motion for summary judgment was erroneous because the evidence establishes
that Ryder System was Parham’s employer and therefore owed him a duty to
provide a safe workplace. Ryder System counters the “district court properly
determined that Parham’s mere allegations of duty without proof that Ryder
System exercised . . . control over the specific aspects of the premises or
equipment that allegedly caused his injury are insufficient” to defeat summary
judgment.
      To establish negligence under Texas law, the plaintiff must “establish a
duty, a breach of that duty, and damages proximately caused by the breach.”
Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).
      The principal issue on appeal is whether Ryder System owed Parham a
duty of care. “Whether a duty exists is a threshold inquiry and a question of
law; liability cannot be imposed if no duty exists.” Id. (citing Van Horn v.
Chambers, 970 S.W.2d 542, 544 (Tex. 1998)). Under Texas law, an “employer
is not an insurer of its employees’ safety at work; however, an employer does
have a duty to use ordinary care in providing a safe work place.” Leitch v.
Hornsby, 935 S.W.2d 114, 117 (Tex. 1996).
      The existence of an employment relationship alone is not enough,
however, to establish a duty of care; the plaintiff must show that the defendant
exercised control over the premises where the injury occurred. The Texas
Supreme Court reached this conclusion in the landmark case Exxon Corp. v.
Tidwell, 867 S.W.2d 19, 23 (Tex. 1993).       There, an Exxon service-station
employee was injured during an armed robbery, and he sued the Exxon
Corporation for failure to maintain a safe workplace. Id. at 20. The Texas
Supreme Court reversed the bench-trial verdict for the employee and


                                       4
    Case: 14-10191     Document: 00512811360       Page: 5   Date Filed: 10/22/2014



                                    No. 14-10191
remanded for a determination “whether Exxon had the right to control the
alleged security defects that led to [the employee’s injury].” Id. at 23.
      Applying Exxon in the summary-judgment context, Texas intermediate
appellate courts require the plaintiff to present some evidence to establish a
genuine issue of fact whether the defendant exercised control over the
equipment or premises on which the plaintiff was injured. Morris v. Scotsman
Industries, Inc. is instructive on this point. 106 S.W.3d 751 (Tex. App.—Fort
Worth 2003, no writ). There, an employee was injured on the job while loading
a forklift. Id. at 752. He was employed by Kysor Panel Systems, a wholly
owned subsidiary of Scotsman Industries (Scotsman). Id. He sued the parent
company Scotsman, and Scotsman moved for summary judgment arguing that
it owed him no duty of care. Id. at 752–53. The trial court granted summary
judgment and the court of appeals affirmed. Id. at 753. The court of appeals
reviewed the summary-judgment record and “found no evidence that would
raise an issue of fact as to Scotsman’s control or right of control over Kysor’s
forklift operations.” Id. at 756.
      So too here. As the district court correctly concluded, there is a genuine
dispute of fact whether Ryder System had some sort of an employment
relationship with Parham; however, there is no evidence that Ryder System
exercised control over the rental truck, trailer, or work site where Parham was
injured. Ryder System’s Senior Vice President Sanford Hodes testified at his
deposition that Ryder System “did not own, lease, possess or otherwise control”
the trailer from which Parham fell. Parham himself testified at his deposition
that XTRA Lease—not Ryder System—owned the trailer and leased it to
PrimeSource. PrimeSource, notably, operated the distribution facility where
Parham fell.    In light of this evidence, Ryder System satisfied its initial
summary-judgment burden, and the burden shifted to Parham to “set forth
and support by summary judgment evidence specific facts showing the
                                         5
    Case: 14-10191    Document: 00512811360     Page: 6   Date Filed: 10/22/2014



                                 No. 14-10191
existence of a genuine issue for trial.” Ragas v. Tenn. Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255–57 (1986)). Parham did not meet this burden. Therefore, the district
court properly granted Ryder System’s motion for summary judgment.
      Parham’s argument—that because Ryder System had a relationship
with Parham, it therefore “had a duty to provide Parham with a safe work
place”—is unavailing in light of Texas case law to the contrary. Parham directs
the Court to various circumstantial evidence that suggests that Ryder System
is in a parent–subsidiary relationship with Parham’s immediate employer.
Specifically, Parham points out that his initial job application stated that
“exceptions [to the employment policy] are permitted only when they are
signed by the Chief Executive Officer of Ryder System, Inc.” Moreover, email
correspondence describing a confrontation between Parham and a coworker
indicates that some of Parham’s supervisors’ email addresses include the
words “RYDERSYSTEMINC.” This information is merely consistent with a
parent–subsidiary relationship between Ryder System and Parham’s
immediate employer, but it does not establish that Ryder System owed Parham
a duty of care.   Cf. Morris, 106 S.W.3d at 752, 756 (noting the parent–
subsidiary relationship between the defendant and the plaintiff’s immediate
employer, and affirming summary judgment for the defendant nonetheless).
      Moreover, this case is unlike Brooks v. National Convenience Stores, Inc.,
897 S.W.2d 898 (Tex. App.—San Antonio 1995, pet. dism’d).              There, a
convenience-store employee sued his employer’s subsidiary for injuries he
suffered during a robbery. Id. at 900. The court of appeals reversed summary
judgment because the plaintiff pointed to deposition testimony that
established that the defendant promulgated the security policies. Id. at 904–
05. The court held that this testimony revealed a genuine issue of fact whether
the subsidiary exercised control over the safety and security of the workplace.
                                       6
     Case: 14-10191      Document: 00512811360        Page: 7     Date Filed: 10/22/2014



                                     No. 14-10191
Id. at 905.     In contrast, here, there is no evidence that Ryder System
promulgated policies concerning truck use or otherwise exercised control over
the equipment or premises on which Parham was injured.                        Therefore,
summary judgment was proper. 1
                              IV.    CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of Ryder
System’s motion for summary judgment.




      1  Because we affirm the district court’s grant of summary judgment, we need not
decide Ryder System’s alternative argument that Parham’s suit is time-barred by the statute
of limitations.
                                            7
