                                MEMORANDUM OPINION
                                       No. 04-10-00235-CV

                                      Sergio MALDONADO,
                                             Appellant

                                                 v.

                        SOUTHWESTERN MOTOR TRANSPORT, INC.,
                                     Appellee

                   From the 293rd Judicial District Court, Maverick County, Texas
                                Trial Court No. 08-02-23244-MCV
                           Honorable Cynthia L. Muniz, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 23, 2011

AFFIRMED

           This appeal arises from the grant of a no-evidence summary judgment against Appellant

Sergio Maldonado regarding his claims against Appellee Southwestern Motor Transport, Inc.

Maldonado argues that the trial court erred because his summary judgment evidence raised a

genuine issue of material fact. We affirm the trial court’s judgment.
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                                          BACKGROUND

       Southwestern owns a storage building out of which it leases space to other companies to

store and ship items. Fujikama Automotive America, a company that ships goods to Mexico,

rented space in Southwestern’s building. Fujikama hired Maldonado to monitor its shipments’

compliance with U.S. customs regulations. As part of its lease with Fujikama, Southwestern was

responsible for loading and unloading Fujikama’s shipments and transporting them to Mexico.

       On February 8, 2007, Maldonado was inspecting Fujikama’s boxes before they were

loaded onto Southwestern’s trailers. Maldonado instructed Nelson Aguilar, a Southwestern

employee, to not load a particular box because it did not comply with regulations. Despite this

instruction, the box was loaded onto the trailer. Maldonado asked Aguilar to retrieve the box,

but Aguilar responded that he could not remove the box unless he received approval from his

manager, Joseph Martinez, who was not in the office. Despite Southwestern’s policy of not

allowing customers’ employees onto their trailers, Aguilar informed Maldonado that Maldonado

would either have to wait for Martinez to return or retrieve the box himself.

       Maldonado entered the back of the trailer where several pallets of boxes had been loaded

and stacked on each other. Walking atop the boxes, Maldonado retrieved the noncompliant box

and walked toward the back exit of the trailer. While attempting to exit the trailer, a box on

which Maldonado was standing collapsed. He fell to the floor of the trailer and was injured.

       Maldonado sued Southwestern for negligence, claiming that Southwestern owed him a

duty both as a premises owner and in its activities in loading the trailer. After a period of

discovery, Southwestern filed both traditional and no-evidence motions for summary judgment.

The trial court initially granted both motions but later vacated its grant of the traditional

summary judgment motion. Maldonado appeals the trial court’s judgment.



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                             NO-EVIDENCE SUMMARY JUDGMENT

A. Standard of Review

       We review a trial court’s summary judgment de novo. Joe v. Two Thirty Nine Joint

Venture, 145 S.W.3d 150, 156–57 (Tex. 2004). To prevail on a no-evidence summary judgment

motion, a movant must show that there is no evidence of an essential element of the adverse

party’s cause of action. TEX. R. CIV. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese,

148 S.W.3d 94, 99 (Tex. 2004). We review the grant of a no-evidence summary judgment under

the same legal sufficiency standard used to review a directed verdict. King Ranch v. Chapman,

118 S.W.3d 742, 750–51 (Tex. 2003).

       Although the non-moving party is not required to marshal its proof, it must present

evidence that raises a genuine issue of material fact on each of the challenged elements. TEX. R.

CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence

summary judgment motion may not be properly granted if the non-movant brings forth more

than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements.

Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence “rises

to a level that would enable reasonable and fair-minded people to differ in their conclusions.”

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We view the record in

the light most favorable to the nonmovant and disregard all contrary evidence and inferences.

KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).




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B. Premises Liability 1

         Maldonado pled that Southwestern failed to warn him of the unsafe condition created by

the boxes on the trailers, and Southwestern moved for a no-evidence summary judgment because

Maldonado presented “no evidence of actual or constructive knowledge.” To overcome a no-

evidence summary judgment on a premises liability claim, a plaintiff must present legally

sufficient evidence that “the premises owner had actual or constructive knowledge of a

dangerous condition on the premises.” See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 813

(Tex. 2002); King Ranch, 118 S.W.3d at 750–51. A premises owner has constructive knowledge

of a dangerous condition on the premises “if the condition had existed long enough for the owner

or occupier to have discovered it upon reasonable inspection.” CMH Homes, Inc. v. Daenen, 15

S.W.3d 97, 103 (Tex. 2000).

         Maldonado argues that his deposition and the deposition of Joseph Martinez raised a fact

issue with regard to Southwestern’s actual or constructive knowledge of a dangerous condition

by showing that: (1) a Southwestern employee had loaded the box that collapsed; and (2) a

Southwestern customer’s employee should not be allowed onto Southwestern’s trailers because

of the safety hazard posed in doing so.

         Maldonado points to no evidence in the record that Southwestern had actual knowledge

that the particular box that collapsed was susceptible to collapsing. Viewing the record in a light

most favorable to Maldonado, his evidence that a Southwestern employee loaded the box onto

the trailer does not raise a fact issue as to whether the employee knew the box was unsafe.



1
  Though we recognize that a plaintiff may allege only a cause of action for premises liability or general negligence,
see Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992), the trial court’s judgment did not state whether
Maldonado alleged a premises liability or general negligence claim and, instead, granted Southwestern’s no-
evidence motion, which challenged all of the elements of Maldonado’s premises liability and general negligence
causes of action. We therefore assume that the trial court made sufficient conclusions of law to support its
judgment. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).

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Moreover, the evidence that Southwestern prohibits its customer’s employees from going inside

of its trailers establishes, at most, that Southwestern knew of the potential for dangerous

conditions to exist inside their trailers. None of the evidence presented raised a genuine issue of

material fact regarding whether Southwestern had actual or constructive knowledge that the box

in question was susceptible to collapsing. See Reece, 81 S.W.3d at 813; CMH Homes, Inc., 15

S.W.3d at 103. Accordingly, the trial court properly granted the no-evidence summary judgment

as to Maldonado’s premises liability claim.

C. General Negligence

         Maldonado also pled that Southwestern: (1) negligently failed to follow his instructions

to not place the noncompliant box on the trailer and to retrieve the box from the trailer; and (2)

negligently failed “to establish clear and concise procedures and rules regarding safe loading and

unloading of [its] trailers.” To survive a motion for summary judgment, Maldonado’s summary

judgment evidence would have needed to establish that either of Southwestern’s alleged breaches

proximately caused his injury. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).

Showing proximate cause requires proof that the plaintiff’s injury was a reasonably foreseeable

consequence of the alleged breach. See Clark v. Waggoner, 452 S.W.2d 437, 439–40 (Tex.

1970).

         As evidence of this element, Maldonado points to depositions that stated that

Southwestern had an obligation to load and unload the trailer and a policy of not permitting non-

employees on the trailers because of potential safety hazards. Viewed in a light most favorable

to Maldonado, these depositions—especially in the absence of evidence that Southwestern had

actual or constructive knowledge of the frailty of the box on which Maldonado fell—are not

legally sufficient evidence that Maldonado’s fall from a collapsing box inside Southwestern’s



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trailer was a reasonably foreseeable consequence of Aguilar’s failure to follow Maldonado’s

instructions. See King Ranch, 118 S.W.3d at 750–51; KPMG Peat Marwick, 988 S.W.2d at 748;

Clark, 452 S.W.2d at 439–40.

       Considering Maldonado’s allegation that Southwestern was negligent in failing “to

establish clear and concise procedures and rules regarding safe loading and unloading of [its]

trailers,” Maldonado needed to present legally sufficient evidence that but for Southwestern’s

failure to establish such clear and concise procedures, Maldonado would have not been injured.

See Clark, 452 S.W.2d at 439 (recognizing that proximate cause requires showing a cause in

fact). The evidence, however, established that such procedures did exist. Maldonado presented

evidence that Aguilar had violated Southwestern’s safety policies for loading and unloading the

trailers by permitting Maldonado to retrieve the noncompliant box. Thus, viewing the record in

a light most favorable to Maldonado, he presented no legally sufficient evidence that

Southwestern’s alleged failure to establish clear and concise procedures and rules caused him to

be injured. See id.

                                          CONCLUSION

       Because Maldonado presented no evidence raising a genuine issue of material fact

regarding his claims against Southwestern, the judgment of the trial court is affirmed.


                                                 Rebecca Simmons, Justice




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