Affirmed and Opinion Filed July 31, 2018




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00869-CV

                    BOYD BIGGS, Appellant
                            V.
 BRADFORD MANAGEMENT COMPANY AND STATE TEACHERS RETIREMENT
                  SYSTEM OF OHIO, Appellees

                      On Appeal from the 134th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-13-02424

                             MEMORANDUM OPINION
                          Before Justices Bridges, Brown, and Boatright
                                   Opinion by Justice Bridges
       Boyd E. Biggs appeals from the trial court’s order denying his motion for partial summary

judgment and granting summary judgment in favor of Bradford Management Company and the

State Teachers Retirement System of Ohio (STRS). In two issues, Biggs argues the trial court

erred in granting summary judgment in favor of Bradford and STRS and denying his motion for

partial summary judgment. We affirm the trial court’s judgment.

       The summary judgment record shows that STRS owns a 508,000-square-foot building in

Fort Worth, Texas, which is managed by Bradford. In 2004, STRS leased the building to Cott

Beverages, Inc., which conducts its operations at approximately 250 to 300 buildings across the

United States and puts beverages into bottles and cans. At the time Cott leased the building, it had

100 skylights/smoke vents, and Cott added 100 more. In June 30, 2011, Biggs was a Cott
employee and was assigned to clean air conditioning coils on the roof of the building. While

attempting to unwind a water hose, Biggs walked backward and fell through a skylight. Biggs fell

thirty-five feet to the concrete floor below and was injured.

       In February 2013, Biggs filed his original petition alleging claims of negligence and

premises liability against Bradford and STRS. By September 2015, Biggs had filed his seventh

amended petition, and Bradford and STRS filed a traditional and no-evidence motion for summary

judgment in which they argued, among other things, they owed no duty to Biggs “for any open

and obvious previously existing allegedly dangerous conditions on the leased property.”

       In November 2015, Biggs filed a response to Bradford and STRS’s motion for summary

judgment. The response was supported, in part, by Biggs’s deposition testimony. Biggs testified

he had been on the roof approximately thirty times during the four months he worked at Cott, and

“you can’t avoid” seeing the skylights on the roof. Biggs testified he used the same hose and “most

of the times” he was on the roof he “pulled it around the way [he was] doing the day of the

incident.” Biggs “had been told that there had been a hailstorm before,” and he was aware roofing

contractors had been on the roof after the hailstorm. Biggs testified the skylight should have had

a warning regarding its structural integrity. According to Biggs, the skylight was “the equivalent

of a piece of Saran Wrap stretched over an open hole.”

       In August 2016, Biggs filed his eleventh amended original petition in which he asserted

premises liability and negligence claims against Bradford and STRS. Biggs alleged Bradford and

STRS had a contractual obligation under the lease with Cott, to keep the roof of the building in

good order, condition, and repair. Biggs alleged Bradford and STRS received actual notice of hail

damage to the roof, which included fractures and/or holes in the skylight through which Biggs fell,

but failed to take any action “beyond applying duct tape” despite their duty to “secure and make

safe the unguarded and fractured skylight.” Based on these facts, Biggs alleged he was an invitee

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at the building, and Bradford and STRS owed him a duty to use ordinary care, including the duty

to protect and safeguard him from unreasonably dangerous conditions on the premises or to warn

of their existence. Biggs alleged he suffered injuries as a direct and proximate result of his fall

caused by the dangerous condition of the premises, and Bradford and STRS knew or should have

known the dangerous condition existed and was caused by a hailstorm five weeks before. Biggs

alleged Bradford and STRS had a duty to repair the skylight, were negligent in permitting the

dangerous condition to exist, and negligently or willfully failed to warn Biggs of the dangerous

condition, even though Bradford and STRS knew or should have known of the dangerous

condition. Moreover, Biggs alleged, Bradford and STRS had a non-delegable duty as owner of

the premises to keep the premises safe and were therefore “jointly and severally liable for the

negligence of any contractor or subcontractor whose prior negligence created or contributed to the

dangerous condition,” including several named roofing companies. Regarding Bradford and

STRS’s own negligence, among other things, Biggs alleged they were negligent in failing to

maintain the premises, warn Biggs and Cott of the extremely dangerous condition, take proper

steps to ensure the area was safe, properly inspect the area when they knew or should have known

of the dangerous condition, and safely conduct reconstruction or remodeling of the roof or repair

the hail damage.

       In February 2017, Biggs filed a motion for partial summary judgment alleging, among

other things, that STRS and its agents were obligated to keep the skylight in good order, condition,

and repair both before and after the May 24, 2011 hail damage. Also in February 2017, Bradford

and STRS filed their first amended motion for summary judgment. The motion argued Cott’s lease

made Cott responsible for all building repairs and maintenance. After the May 24, 2011 hail event,

Bradford sent a roofing contractor, Cardinal Roofing, to inspect the roof, and Cardinal found black

duct tape on some of the skylights. The motion was supported by the affidavit of Cardinal

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employee Kirk Lopeman, who stated Cardinal would not have placed black duct tape on any of

the skylights because Cardinal used a black and white “peel-and-stick” material to make temporary

repairs. Lopeman stated that the duct tape placed on the skylights was put there by someone within

the maintenance department at Cott.

       As grounds for summary judgment, the motion stated, among other things, the following:

       As a matter of law, since [Biggs] was an employee of a tenant, [STRS] and
       [Bradford], as the leasing agent standing in place of [STRS], owed no duty to
       [Biggs] for any open and obvious previously existing allegedly dangerous
       conditions on the property.

On April 21, 2017, the trial court signed an order denying Biggs’s motion for partial summary

judgment and granting Bradford and STRS’s motion for summary judgment. The trial court’s

order stated the Texas Supreme Court has declined imposing a duty on the part of an owner of a

warehouse for premises conditions that are open and obvious; the skylights were a condition of

the premises which were open and obvious; and, furthermore, Bradford and STRS had no duty to

warn Biggs against his own dangerous activities. This appeal followed.

       In his first issue, Biggs argues the trial court erred in granting summary judgment for

Bradford and STRS because the condition of the skylight was not open and obvious and they had

a duty to use reasonable care in repairing and maintaining the skylight.

       We review the trial court’s decision to grant summary judgment de novo. Tex. Mun. Power

Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). A party seeking a no-

evidence summary judgment must assert that no evidence exists as to one or more of the essential

elements of the nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Henning v. OneWest Bank FSB, 405 S.W.3d 950, 957 (Tex.

App.—Dallas 2013, no pet.). “The motion must state the elements as to which there is no

evidence.” TEX. R. CIV. P. 166a(i); Henning, 405 S.W.3d at 957. Once the movant specifies the

elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on
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the challenged elements. See TEX. R. CIV. P. 166a(i); Henning, 405 S.W.3d at 957; see also S.W.

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We review a no-evidence motion for

summary judgment under the same legal sufficiency standard used to review a directed verdict.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Flood v. Katz, 294 S.W.3d

756, 762 (Tex. App.—Dallas 2009, pet. denied). Our inquiry focuses on whether the nonmovant

produced more than a scintilla of probative evidence to raise a fact issue on the challenged

elements. See King Ranch, 118 S.W.3d at 751; Flood, 294 S.W.3d at 762. Evidence is no more

than a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact.

King Ranch, 118 S.W.3d at 751. If a no-evidence motion for summary judgment and a traditional

motion for summary judgment are filed which respectively asserts the plaintiff has no evidence of

an element of its claim and alternatively asserts that the movant has conclusively negated that same

element of the claim, we address the no-evidence motion for summary judgment first. Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

       To prevail on a traditional summary judgment motion, a movant has the burden of proving

that he is entitled to judgment as a matter of law and that there is no genuine issue of material fact.

TEX. R. CIV. P. 166a(c); Cunningham v. Tarski, 365 S.W.3d 179, 185-86 (Tex. App.—Dallas 2012,

pet. denied). When a defendant moves for summary judgment, he must either (1) disprove at least

one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each

essential element of an affirmative defense, thereby defeating the plaintiff's cause of action.

Cunningham, 365 S.W.3d at 186. In determining whether there is a genuine fact issue precluding

summary judgment, evidence favorable to the nonmovant is taken as true and the reviewing court

makes all reasonable inferences and resolves all doubts in the nonmovant’s favor. Id.; Nixon v.

Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985). A matter is conclusively

established if reasonable minds cannot differ as to the conclusion to be drawn from the evidence.

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Cunningham, 365 S.W.3d at 186; see also City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

2005). Once a movant conclusively establishes an affirmative defense, the burden of production

shifts to the nonmovant to present summary judgment evidence that raises a fact issue on at least

one element of the movant’s affirmative defense or an exception or defense to that affirmative

defense. Cunningham, 365 S.W.3d at 186.

       The Texas Supreme Court has “declined to impose a duty for premises conditions that are

open and obvious, regardless of whether such conditions are artificial or naturally occurring.”

4Front Engineering Solutions, Inc. v. Rosales, 505 S.W.3d 905, 912 (Tex. 2016). In 4Front, the

plaintiff was injured on defendant’s premises when an electrician hired by defendant to repair a

sign drove the scissor lift in which plaintiff was riding off the sidewalk, causing the lift to topple

and injure plaintiff. See id. at 906-07. The court declined to impose a duty for premises conditions

that were open and obvious “even if the sidewalk’s edge was dangerous and did proximately cause

the accident.” Id. at 912.

       Here, as the trial court determined, the skylights were an open and obvious condition of

the property. Biggs testified he had been up on the roof approximately thirty times, and he knew

“you can’t avoid” seeing the skylights. Biggs knew there had been a hailstorm, and roofing

contractors had been on the roof after the hailstorm. Biggs himself described the skylight as “the

equivalent of a piece of Saran Wrap stretched over an open hole.” Because the dangerous nature

of the skylights was open and obvious, Bradford and STRS owed no duty to Biggs. See id. at 912.

Therefore, the trial court did not err in granting summary judgment in favor of Bradford and STRS

on Biggs’s claims arising out of his fall through the skylight. See TEX. R. CIV. P. 166a(i); 4Front,

505 S.W.3d at 912; King Ranch, 118 S.W.3d at 750-51. We overrule Biggs’s first issue. Because

of our disposition of Biggs’s first issue, we need not address his second issue in which he argues

the trial court erred in denying his motion for partial summary judgment.

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      We affirm the trial court’s judgment.




                                                /David L. Bridges/
                                                DAVID L. BRIDGES
                                                JUSTICE


170869F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 BOYD BIGGS, Appellant                               On Appeal from the 134th Judicial District
                                                     Court, Dallas County, Texas
 No. 05-17-00869-CV          V.                      Trial Court Cause No. DC-13-02424.
                                                     Opinion delivered by Justice Bridges.
 BRADFORD MANAGEMENT                                 Justices Brown and Boatright participating.
 COMPANY AND STATE TEACHERS
 RETIREMENT SYSTEM OF OHIO,
 Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellees BRADFORD MANAGEMENT COMPANY AND
STATE TEACHERS RETIREMENT SYSTEM OF OHIO recover their costs of this appeal from
appellant BOYD BIGGS.


Judgment entered July 31, 2018.




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