Maria Garay and A.O. v. G. R. Birdwell Construction, L.P.

Opinion issued November 25, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-01088-CV
———————————
MARIA GARAY AND A.O., Appellants
V.
G. R. BIRDWELL CONSTRUCTION, L.P., Appellee

On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2013-07234

MEMORANDUM OPINION

Maria Garay (“Garay”), the surviving spouse of the decedent, Paulino Garay

(“Paulino”), and A.O., on behalf of Paulino’s minor child, sued Paulino’s

employer, G. R. Birdwell Construction, L.P. (“Birdwell”), for wrongful death
arising out of a fatal accident that occurred while Paulino operated a trench roller

at a construction site. The trial court granted Birdwell’s no-evidence summary

judgment motion on Garay’s and A.O.’s gross negligence claims. In three issues,

Garay and A.O. contend that the trial court erred in (1) sustaining Birdwell’s

hearsay objection to witness statements contained in a police report because the

statements constituted admissions by a party opponent; (2) granting Birdwell’s no-

evidence summary judgment motion because Garay raised fact issues on both

elements of her gross negligence claim; and (3) granting summary judgment with

respect to A.O. despite her counsel’s failure to file a summary judgment response

due to equitable considerations.

We affirm the judgment of the trial court.

Background

On September 21, 2012, Birdwell completed construction of an L-shaped

concrete wall at a construction site near the Houston Ship Channel. Paulino

operated a Dynapac LP8500 trench compactor for Birdwell. 1 Paulino had worked

for Birdwell for five years operating the trench roller without any incidents.

Generally, workers use a remote control to operate the trench roller; however,

according to Cosme Fuentes, another Birdwell employee, Paulino claimed the

1
The parties refer to this piece of machinery in the trial court proceedings and in
their briefs on appeals as a “trench roller.” We therefore do likewise. A trench
roller is a machine that packs soil and is used to compact backfill for trenches.

2
remote control was not working even though he had used it earlier the same day.

As a result, Paulino decided to manually operate the trench roller. At least one

other Birdwell employee had operated the trench roller in the same manner on

previous occasions.

At some point while maneuvering the trench roller, Paulino stood at a “pinch

point” between the trench roller and the concrete wall. 2 The trench roller

subsequently pinned Paulino to the concrete wall. His co-workers attempted to

move the trench roller, but Paulino had already sustained massive internal injuries

and died at the scene.

In her original petition, Garay sued Birdwell, a worker’s compensation

insurance subscriber, for gross negligence. She contended that three essential

safety features of the trench roller failed on the date of the incident—the remote

control, the rear “push-stop” bar, and the emergency stop button. Garay alleged

that Birdwell “knew that [the trench roller] was not safe to operate but failed to

make the proper repairs or replacement and required Paulino Garay to continue

2
According to the Occupational Safety & Health Administration (“OSHA”), a
pinch point is “any point other than the point of operation at which it is possible
for a part of the body to be caught . . . between moving and stationary parts of a
press or auxiliary equipment or between the material and moving part or parts of
the press or auxiliary equipment.” 29 C.F.R. § 1910.211(d)(44) (2011).

3
operating the unsafe equipment,” ultimately causing his death. Several months

later, A.O. intervened in the lawsuit with allegations identical to Garay’s. 3

Birdwell moved for no-evidence summary judgment on both Garay and

A.O’s gross negligence claims. Birdwell contended it was entitled to summary

judgment as a matter of law because no evidence existed to show that

(1) “Birdwell’s conduct created an extreme degree of risk that Paulino Garay

would sustain serious injury”; (2) “Birdwell was actually aware of an extreme

danger of serious injury to Paulino Garay, yet acted with conscious indifference to

Garay’s rights, safety, or welfare”; or (3) “any Birdwell vice principal committed

or ratified gross negligence.” Birdwell maintained that neither Garay nor A.O.

could “demonstrate that there is a scintilla of probative evidence to support the

required elements of their gross negligence claims.”

In its summary judgment motion, Birdwell contended that Garay and A.O.

could not establish that, without hindsight, Birdwell’s actions or omissions created

an “extreme degree of risk” or the likelihood of serious injury to Paulino.

Specifically, Birdwell argued that “[Paulino] was doing the same type of work and

using the same piece of equipment that he had used regularly in the five years that

he had worked for Birdwell” and that Paulino was responsible for checking his

equipment and reporting any problems with the equipment before beginning work

3
A.O. is the mother of O.O., Paulino’s biological minor child. O.O. is not related
to Maria Garay.

4
each day. Additionally, Birdwell presented evidence that it had warned its

employees never to stand between equipment and a fixed object such as a wall.

Birdwell further argued that summary judgment was proper because Garay and

A.O. could not establish that Birdwell “actually kn[e]w of an extreme danger to

[Paulino]” or that it acted with conscious indifference to Paulino’s safety and

welfare. Specifically, Birdwell argued that Garay and A.O. could present no

evidence that “any problem with the operation of the [trench roller] was brought to

the attention of any Birdwell manager in the days preceding the accident.”

Birdwell also argued that the “only danger” on the day of the incident was

Paulino’s “unexpected and unforeseen action in ignoring Birdwell’s safety rules

and putting himself into a pinch point between the [trench roller] and the wall.”

Birdwell further asserted that Garay and A.O. did not identify a Birdwell

vice principal who potentially committed gross negligence resulting in Paulino’s

death. With its no-evidence motion, Birdwell submitted portions of the depositions

of Cosme Fuentes, Ramon Jaramillo, a Birdwell foreman, David Frias, Birdwell’s

superintendent, Jerry Travelstead, Birdwell’s corporate health and safety manager,

Daniel Monajares, a shop and field mechanic for Birdwell, and Jose Monajares, a

Birdwell foreman.

According to his testimony, Jaramillo had seen Paulino using the remote

control to operate the trench roller on the morning of the incident, but in the

5
afternoon, he saw Paulino operating the trench roller manually. Jaramillo stated,

“[W]e know that it’s dangerous to get on the back of the machine.” Jaramillo

testified that he did not attend a meeting in which Birdwell safety personnel

discussed a safe way to operate the trench roller that Paulino usually used.

However, Jaramillo also testified that Birdwell conducted a daily safety meeting

each morning and that Birdwell provided “safety data sheets” to its employees.

During the morning safety meetings, Birdwell told equipment operators to inspect

their equipment and report any issues. Birdwell also held a safety meeting

regarding a larger trench roller than the one Paulino usually operated.

The topics for the “safety data sheets” changed weekly. Birdwell attached

examples of the safety data sheets as summary judgment evidence. The “Weekly

Safety Meeting” sheets reminded employees to fill out a “Daily Equipment

Inspection Form” prior to using the equipment each day. Additionally, one of the

weekly safety sheets, entitled “A Rock and a Hard Place” warned employees to be

cautious around equipment. This document stated, “Never stand between a piece

of equipment or a load and a fixed object like a wall, pillar, vehicle, or another

load,” and, “Make sure that you look for and avoid pinch points.”

In his deposition, Cosme Fuentes testified that Paulino showed him how to

operate the trench roller. On the day of the incident, Fuentes warned Paulino not to

place himself between the concrete wall and the trench roller. However, Paulino

6
rebuffed the warning and told Fuentes, “[H]ey, man, you know, you’re not safety

anymore.” Fuentes stated,

He was like, man, imagine if it would crush me, and I was like, that’s
what I told you, turn the machine around. So when he went to go do it
again, he came back and he put his hand out to the side and he
controlled it like that. I was like, see, that’s better, you know.

Fuentes then turned away, but when he turned back to Paulino shortly thereafter,

he saw Paulino pinned against the wall by the trench roller. Fuentes attempted to

move the trench roller away from the wall, but Paulino’s body covered its buttons,

including an emergency stop button. After realizing he needed help, Fuentes

yelled for Frias and Jaramillo. Jaramillo and Frias hooked a chain to the trench

roller to pull it away from the concrete wall with a bulldozer.

David Frias testified that Paulino had worked for Birdwell for five years and

that he had initially trained Paulino on the trench roller, which he described as an

“entry level” machine. Frias did not give Paulino a formal training course on the

trench roller; instead, the training primarily consisted of Frias telling Paulino, “Get

your remote control, get it started, and stay away from it you know, running.”

Frias testified that he was not aware of any problems with the trench roller on the

day of the incident. He stated that it is the operator’s responsibility to inspect his

equipment each day and let the shop know if equipment needs repair.

Daniel Monajares testified that equipment would come into Birdwell’s repair

shop after a job finished so the mechanics could inspect it and “make sure

7
everything is good for the next job.” The mechanics would fix any problems

before sending the equipment to the next job. He testified that if a piece of

equipment breaks while on a job, the operator is supposed to tell his supervisor,

who then calls the shop foreman.

Birdwell introduced portions of Jerry Travelstead’s testimony to

demonstrate that the remote control was not malfunctioning and that there had

been no problems with the trench roller while Paulino had been operating it on the

date of the incident. Additionally, Travelstead testified that a representative from

Dynapac inspected the trench roller and conducted a separate report. In his

deposition, Travelstead conceded that Birdwell did not have a formal safety policy

with regard to equipment repair. Travelstead also testified that Birdwell foremen

generally let him know if equipment had a problem and that, if he discovered

malfunctioning equipment while walking around a jobsite, he would “have them

stop and have it repaired.” Travelstead stated, “The only thing that I know of [is]

that all safety devices that are on the equipment needs to be working if it’s

identified as a safety piece of equipment, safety device.”

Garay responded to Birdwell’s summary judgment motion, asserting that

fact issues existed on each element of her gross negligence claim. 4 Garay argued

that Birdwell knew that the trench roller “was not safe to operate but failed to make

4
A.O., who had retained separate counsel from Garay, did not respond to
Birdwell’s summary judgment motion.

8
the proper repairs or replacement[s] and acted with conscious indifference to

Paulino Garay’s rights, safety, and welfare by requiring him to continue operating

the unsafe equipment.” Garay also asserted that not only was Birdwell “aware that

the operation of the equipment without proper training was extremely dangerous

and could cause serious injury,” but Birdwell consciously disregarded this risk by

requiring Paulino to operate the trench roller without any training and failing to

warn him of any danger. She argued that Birdwell was aware “of previous

problems with the remote and with other mechanical problems of the trench

roller.” Garay argued that if Birdwell had checked the trench roller’s safety

devices, it would have “discovered that the safety shut off switch did not work and

that the safety shut off bar was completely missing from the machine.”

As summary judgment evidence, Garay introduced a post-incident

inspection report concerning the trench roller prepared by a Dynapac

representative and an OSHA citation that contained excerpts of the Dynapac

report. The Dynapac report identified that the push-stop bar (“safety bar”) was

missing from the trench roller and explained that when the safety bar hits an object,

it causes the trench roller to stop. The report also noted that the inner tube of the

safety bar was bent, there was a problem with fuel shut off solenoid and linkage,

the safety manual was missing from its storage compartment, and the engine

9
start/stop switch was broken.5 In the OSHA citation, the investigator noted that

not only was the trench roller missing safety and mechanical components,

including the safety bar, but also the machine had serious defects, and Birdwell

should have taken the trench roller out of service.

The OSHA citation listed two regulatory violations: (1) “[E]mployees were

exposed to a caught in-between hazard when manually operating the [trench roller]

while backfilling dirt in close proximity of a concrete wall without functioning

safety and mechanical devices”; and (2) “The employer does not ensure safety and

mechanical devices are functioning. . . . [E]mployees were exposed to a caught in-

between hazard . . . without ensuring that the machinery was functioning

properly.” Birdwell did not share this OSHA report with its employees. Garay

also argued that Birdwell’s failure to post the OSHA report and citation where its

employees could see it constituted conscious indifference to the safety of its

employees.

In addition to the OSHA inspection, a deputy from the Harris County

Sheriff’s Department investigated the scene and took several witness statements

regarding the accident. Garay attached the sheriff’s incident report, which

5
“The function of the fuel shut off solenoid[] is to shut off the engine when either
the emergency stop, or the stop switch are being activated. When power to the
solenoid is cut off, it pushes the rod, which makes the fuel shut off lever rotate,
and mechanically shut[s] off fuel supply to stop the engine. In order for this to
happen, the rod must be connected both to the solenoid, and the shut off lever.”

10
contained an “investigative narrative” describing the deputy’s conversations with

eyewitnesses, as summary judgment evidence.

Garay also attached highlighted excerpts from the depositions of

Travelstead, Fuentes, Daniel Monajares, Jaramillo, and Frias to raise fact issues

concerning Birdwell’s safety procedures. Garay used statements from the

depositions to emphasize that Birdwell failed to provide any training for the trench

roller and that Birdwell did not inform employees of the OSHA citation as was

required. Additionally, Garay emphasized that the trench roller had had previous

problems, including problems with the remote control, and that Birdwell failed to

make proper repairs.

Garay submitted the admissions of Travelstead, Fuentes, Daniel Monajares,

and Jose Monajares that they were not aware that Birdwell had held any specific

meetings or programs regarding safe operation of the trench roller. Travelstead

revealed that he realized the push-stop bar had been removed from the trench roller

when he conducted the report and reviewed the Dynapac safety manuals.

However, Travelstead also testified that Birdwell was not initially aware of the

push-stop bar because it was not identified as a safety device in the manual for the

trench roller. The evidence submitted by Garay also included multiple witness

accounts that the emergency stop button failed and then broke off when the

workers tried to save Paulino.

11
 In reply, Birdwell contended that Garay failed to raise an issue of material

fact regarding the elements of gross negligence. Birdwell also objected to the

witness statements found in the sheriff’s incident report, to the Dynapac post-

incident inspection report, and to the OSHA citation issued to Birdwell including

excerpts from the investigator’s report. Specifically, Birdwell objected to the

following passage from the sheriff’s report on the basis of hearsay:

I spoke with Cosme Fuentes who advised that he had just talked to
Mr. Garay and was walking away from the area[.] Mr[.] Fuentes
advised that he turned around and saw that Mr[.] Garay was trapped
between the Dynapac and the concrete wall[.] Mr[.] Fuentes advised
that he started yelling for help and several co-workers arrived on
scene to help[.]

I then spoke with several co-workers and they advised that they all ran
over to help at the same time and when the[y] arrived the Dynapac
was still running and had Mr[.] Garay trapped against the wall[.] The
co-workers advised that they pushed the emergency stop on the
Dynapac but the emergency stop failed and the machine kept
running[.] I was further advised that the co-workers pulled the fuel
lines from the machine to stop the engine[.] Once the engine was
stopped, they pulled the machine off of Mr[.] Garay by hooking a
chain to the Dynapac and then to a bulldozer and pulled the Dynapac
off of Mr[.] Garay with the bulldozer.

Birdwell argued that the OSHA citation and the Dynapac report also constituted

inadmissible hearsay that does not fall within any exceptions to the hearsay rule.

Birdwell also attached additional deposition excerpts as summary judgment

evidence. Daniel Monajares testified that the trench roller operated by Paulino had

gone to the shop for minor repairs on several occasions in the two years preceding

12
the incident, such as for a problem with the hydraulic vent, a problem with the

muffler, a compaction problem, an electric short, an issue regarding the remote

control, and several other problems. Birdwell’s repair shop had addressed all of

the prior problems. Jose Monajares testified that he had witnessed the remote

control malfunction before, but only when the operator stood too close to the

trench roller itself.

Birdwell also attached additional excerpts from Travelstead’s deposition.

He testified that the purpose of the push-stop bar was to protect the back of the

trench roller, that the bar had never been present on the trench roller at all during

the five years Paulino had operated the trench roller, and that, at the time of the

incident, he was unaware that the absence of the push-stop bar constituted

something “wrong with” the trench roller. Travelstead testified that the trench

roller had, at one point, been repaired by a company authorized by Dynapac, and

that company did not identify the push-stop bar as a necessary safety device.

The trial court held a hearing on Birdwell’s summary judgment motion.

Despite receiving notice, A.O.’s attorney did not appear at this hearing. During the

hearing, Birdwell orally objected to the witness statements contained within the

sheriff’s incident report on the basis of hearsay. Garay’s counsel argued that the

statements were made by Birdwell employees and thus constituted admissions by a

party opponent. Birdwell also orally objected to the post-incident Dynapac report

13
because it was “not in any kind of admissible form” and was “basically just

inadmissible hearsay.” Birdwell also objected to the OSHA citation and

investigative report on the grounds that they had not been proven up as business

records, that they were not relevant to the gross negligence claim, that they were

meant to be evidence only of the standards in the industry, and that they were “not

in properly admissible form.”

In a written order following the hearing, the trial court sustained Birdwell’s

objections to the sheriff department’s incident report but did not rule on Birdwell’s

objections to the OSHA citation and the Dynapac report. The trial court later

clarified that it overruled Birdwell’s other objections to Garay’s summary

judgment evidence. The trial court granted Birdwell’s no-evidence summary

judgment motion against both Garay’s and A.O.’s gross negligence claims. A.O.

did not file a motion for new trial seeking to set aside the summary judgment

rendered against her.

Garay and A.O. subsequently appealed.

Exclusion of Evidence

In their first issue, Garay and A.O. contend that the trial court erred in

excluding certain portions of the sheriff’s incident report containing witness

statements as inadmissible hearsay. Garay and A.O. argue that the complained-of

14
statements were to a sheriff’s department deputy made by Birdwell’s own

employees and thus constitute admissions by a party opponent.

We review a trial court’s ruling sustaining objections to summary judgment

evidence for an abuse of discretion. Chandler v. CSC Applied Techs., LLC, 376

S.W.3d 802, 824 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Finger v.

Ray, 326 S.W.3d 285, 290 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial

court abuses its discretion when it rules “without regard for any guiding rules or

principles.” Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998) (quoting City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995)).

To reverse a judgment based on the erroneous exclusion of evidence, an appellant

must demonstrate that the exclusion probably resulted in an improper judgment.

Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); see also

TEX. R. APP. P. 44.1(a)(1) (providing that error is reversible if it “probably caused

the rendition of an improper judgment”). A successful challenge to the trial court’s

evidentiary rulings generally requires the complaining party to demonstrate that the

judgment turns on the particular evidence excluded. Interstate Northborough

P’ship, 66 S.W.3d at 220 (citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617

(Tex. 2000)). Ordinarily, we will not reverse a judgment due to the erroneous

exclusion of evidence when the evidence in question is cumulative and not

controlling on a material issue dispositive to the case. Id.

15
 Here, Garay attached the sheriff’s incident report as summary judgment

evidence. Birdwell objected to the following portion of the report:

I spoke with Cosme Fuentes who advised that he had just
talked to Mr. Garay and was walking away from the
area[.] Mr[.] Fuentes advised that he turned around and
saw that Mr[.] Garay was trapped between the Dynapac
and the concrete wall[.] Mr[.] Fuentes advised that he
started yelling for help and several co-workers arrived on
scene to help[.]

I then spoke with several co-workers and they advised
that they all ran over to help at the same time and when
the[y] arrived the Dynapac was still running and had
Mr[.] Garay trapped against the wall[.] The co-workers
advised that they pushed the emergency stop on the
Dynapac but the emergency stop failed and the machine
kept running[.] I was further advised that the co-workers
pulled the fuel lines from the machine to stop the
engine[.] Once the engine was stopped, they pulled the
machine off of Mr[.] Garay by hooking a chain to the
Dynapac and then to a bulldozer and pulled the Dynapac
off of Mr[.] Garay with the bulldozer.

Birdwell argued that this portion of the report was hearsay and, thus, was

inadmissible. Garay argued that the complained-of statements, which were made

by Birdwell employees, constitute admissions by a party opponent, and thus the

trial court should not exclude the statements under the hearsay rule. The trial court

agreed with Birdwell and sustained the objection.

Assuming, without deciding, that the excluded evidence constitutes

admissions by a party opponent, Garay and A.O. have not established that the trial

court’s exclusion of these statements is reversible error. Specifically, Garay and

16
A.O. have not demonstrated that the judgment turns on the particular statements or

that the excluded evidence is not cumulative and is controlling on a material issue

dispositive to the case. See id.

The statements contained in the sheriff’s incident report are similar to

statements made by the employees in the deposition testimony presented by

Birdwell and Garay as summary judgment evidence. For example, in his

deposition, Cosme Fuentes stated that he spoke with Paulino just before the

incident, that he turned away, that when he turned back to Paulino, the trench roller

was crushing Paulino against the wall, that he yelled for help, and that Frias and

Jaramillo arrived at the scene to help free Paulino. Fuentes and Jaramillo both

testified that they tried to stop the trench roller by pushing the emergency-stop

button, which broke, and that they eventually pulled the trench roller away from

Paulino with a bulldozer. Jaramillo also testified that the workers pulled various

parts off the trench roller in an effort to turn it off.

Thus, all of the complained-of statements in the incident report could be

found elsewhere in the summary judgment record. Because the excluded

information is present elsewhere in the summary judgment record, the complained-

of statements are cumulative of other summary judgment evidence. See id. We

therefore hold that the trial court’s exclusion of the witness statements contained in

the sheriff’s incident report does not constitute reversible error. See id. (requiring

17
appellant to demonstrate that judgment turns on particular evidence excluded to

obtain reversal due to erroneous exclusion of evidence); Chandler, 376 S.W.3d at

824 (holding that exclusion of evidence generally does not constitute reversible

error when excluded evidence is cumulative and not controlling on material issue

dispositive to case).

We overrule Garay and A.O.’s first issue.6

No-Evidence Summary Judgment on Gross Negligence Claims

In their second issue, Garay and A.O. contend that the trial court erred in

rendering no-evidence summary judgment in favor of Birdwell on their gross

negligence claims because they presented evidence raising a fact issue on each

essential element of their claims.

A. Standard of Review

We review a trial court’s ruling granting a no-evidence summary judgment

motion de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005). The trial court must grant a no-evidence motion for summary judgment if,

after an adequate time for discovery has passed, the moving party asserts that there

is no evidence of one or more specified elements of a claim or a defense on which

the adverse party would have the burden of proof at trial and the respondent

6
We also note that, in their reply brief, Garay and A.O. concede that the exclusion
of the witness statements contained in the sheriff’s incident report is not
dispositive of the case. Garay and A.O. state, “[T]here is more than sufficient
evidence of each element of gross negligence elsewhere in the record . . . .”

18
produces no summary judgment evidence raising a genuine issue of material fact

on those elements. TEX. R. CIV. P. 166(a)(i); LMB, Ltd. v. Moreno, 201 S.W.3d

686, 688 (Tex. 2006).

When the movant files a proper no-evidence motion, the burden shifts to the

nonmovant to defeat the motion by presenting evidence that raises a fact issue on

each element challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (Tex.2006). We review the evidence presented in the summary judgment

record in the light most favorable to the party against whom summary judgment

was rendered, crediting evidence favorable to that party if reasonable jurors could

and disregarding contrary evidence unless reasonable jurors could not. Id. (citing

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). The evidence

produced must amount to more than a scintilla in order to raise a fact issue.

Madison v. Williamson, 241 S.W.3d 145, 151 (Tex.App.—Houston [1st Dist.]

2007, pet. denied). Evidence amounts to more than a scintilla if it enables

reasonable and fair-minded people to differ in the conclusions to be drawn from it.

See id. at 151–52. Evidence does not amount to more than a scintilla if it gives rise

only to surmise or suspicion about the fact to be proven. See id. at 152.

When, as here, a trial court does not specify the grounds on which it granted

summary judgment, the appealing party must demonstrate that none of the

proposed grounds is sufficient to support the judgment. See Provident Life &

19
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Conversely, we will

affirm the judgment if any one of the theories advanced in the motion is

meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.

2004).

B. Gross Negligence

To prevail in a wrongful death suit against an employer that subscribes to

workers’ compensation insurance, Garay and A.O. must prove that Birdwell was

grossly negligent in causing Paulino’s death.7 See TEX. LABOR CODE ANN.

§ 408.001(a)–(b) (Vernon 2006) (“Recovery of workers’ compensation benefits is

the exclusive remedy of an employee covered by workers’ compensation insurance

coverage or a legal beneficiary against the employer . . . for the death of . . . the

employee. . . . This section does not prohibit the recovery of exemplary damages

by the surviving spouse or heirs of the body of a deceased employee whose death

was caused by . . . the employer’s gross negligence.”); Davis v. Sinclair Ref. Co.,

704 S.W.2d 413, 415 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.)

(“Thus a subscribing employer is exempt from common law liability for injuries

arising from the course of employment except for certain exemplary damages in

death cases specifically provided for by the [Worker’s Compensation] Act.”).

Thus, if Garay and A.O can demonstrate that Birdwell’s gross negligence

7
It is undisputed that Birdwell subscribes to workers’ compensation insurance.

20
proximately caused Paulino’s death, then they are entitled to exemplary damages

in addition to workers’ compensation benefits. See Ardoin v. Anheuser-Busch,

Inc., 267 S.W.3d 498, 502 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

Gross negligence is statutorily defined as an act or omission:

(1) which when viewed objectively from the standpoint of
the actor at the time of its occurrence involves an
extreme degree of risk, considering the probability
and magnitude of the potential harm to others; and

(2) of which the actor has actual, subjective awareness of
the risk involved, but nevertheless proceeds with
conscious indifference to the rights, safety, or welfare
of others.

TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11) (Vernon 2008); see also TEX.

LABOR CODE ANN. § 408.001(c) (“In this section, ‘gross negligence’ has the

meaning assigned by Section 41.001, Civil Practice and Remedies Code.”); Mobil

Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). Unlike ordinary

negligence, gross negligence contains “both an objective and a subjective

component.” Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 796 (Tex.

2012) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21–22 (Tex. 1994)).

Under the objective component of gross negligence, “‘extreme risk’ is not a remote

possibility of injury or even a high probability of minor harm, but rather the

likelihood of serious injury to the plaintiff.” Ellender, 968 S.W.2d at 921. Under

21
the subjective component, “actual awareness means that the defendant knew about

the peril, but its act or omissions demonstrated that it did not care.” Id.

A plaintiff may prove the elements of gross negligence through

circumstantial evidence. Id. However, the legislature raised the standard of proof

to “clear and convincing” in order to establish the elements of gross negligence.

U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 140 (Tex. 2012). Even though

ordinary negligence is a pre-requisite to establish gross negligence, evidence of

ordinary negligence is not sufficient to prove gross negligence. See id.; Shell Oil

Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.—Houston [14th Dist.] 1994,

writ denied). Conduct that is “merely thoughtless, careless, or not inordinately

risky” is not grossly negligent. Ardoin, 267 S.W.3d at 503 (quoting Moriel, 879

S.W.2d at 22). The integral difference between ordinary negligence and gross

negligence is the subjective component of the defendant’s state of mind. La.-Pac.

Corp. v. Andrade, 19 S.W.3d 245, 246–47 (Tex. 1999). “[A] party cannot be liable

for gross negligence when it actually and subjectively believes that circumstances

pose no risk to the injured party, even if they are wrong.” Waldrip, 380 S.W.3d at

141 (citing Andrade, 19 S.W.3d at 248).

We must examine all of the events and circumstances from the defendant’s

perspective at the time the events occurred, without taking hindsight into

consideration. Reeder, 395 S.W.3d at 796; Ellender, 968 S.W.2d at 922. Even if a

22
corporate defendant did not commit gross negligence itself, it may still be “liable if

it commits gross negligence through the actions or inactions of a vice principal” by

authorizing or ratifying the vice principal’s gross negligence. Ellender, 968

S.W.2d at 921–22. The Texas Supreme Court has defined “vice principal” as one

who represents a business in a corporate capacity and “the title of the employee is

not dispositive.” Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex.

1997). Specifically, “vice principals” can be: “(a) [c]orporate officers; (b) those

who have authority to employ, direct, and discharge servants of the master; (c)

those engaged in the performance of nondelegable or absolute duties of the master;

and (d) those to whom a master has confided the management of the whole or a

department or division of his business.” Id.; Ellender, 968 S.W.2d at 922.

Garay and A.O. contend that the trial court erred in rendering summary

judgment in favor of Birdwell because specific acts and omissions by Birdwell

constituted gross negligence. Garay and A.O. argue that Birdwell had a

nondelegable duty to provide a safe workplace, safe equipment, and adequate

training to its employees, but Birdwell breached this duty. An employer has a

“duty to use ordinary care in providing a safe workplace.” LMC Complete Auto.,

Inc., v. Burke, 229 S.W.3d 469, 476 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied); see also TEX. LAB. CODE ANN. § 411.103(1), (3) (Vernon 2006)

(providing that each employer shall “provide and maintain employment and a place

23
of employment that is reasonably safe and healthful for employees” and “take all

other actions reasonably necessary to make the employment and place of

employment safe”). This duty requires employers to furnish safe machinery and

instrumentalities with which its employees are to work, provide adequate

assistance under the circumstances for the performance of required work, instruct

employees in the safe use and handling of equipment used in and around the

employer’s facilities, and adequately hire, train, and supervise employees. LMC

Complete Automotive, 229 S.W.3d at 476.

An employer is not, however, an insurer of its employees’ safety. Id. (citing

Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam)). An

employer does not owe a duty to warn of hazards that are commonly known or

appreciated by the employee, and the employer has no duty to provide assistance if

the injury results from performing the same character of work that employees in

that position have always done and there is no evidence that the work is unusually

precarious. Id. (citing Elwood, 197 S.W.3d at 794–95).

Garay and A.O. focus on five particular acts or omissions in arguing that

Birdwell’s conduct constitutes gross negligence: (1) Birdwell’s failure to train

Paulino on the specific trench roller involved in the incident; (2) the trench roller’s

malfunctioning remote control; (3) the trench roller’s missing safety bar; (4) the

trench roller’s broken emergency shut-off button; and (5) Birdwell’s failure to

24
utilize specific maintenance programs for its equipment and to provide safety

training programs for its employees.

1. Birdwell’s Failure to Train Paulino

Garay and A.O. assert that Birdwell never properly trained Paulino on how

to operate the trench roller and that Birdwell ordered Paulino to use the trench

roller incorrectly, by instructing him to operate it along the inward side of the

concrete wall, even though it knew that using the trench roller in such a manner

was dangerous. In analyzing gross negligence claims, we must take the

employee’s experience into consideration. Nabors Drilling, U.S.A., Inc. v. Escoto,

288 S.W.3d 401, 412 (Tex. 2009); LMC Complete Automotive, 229 S.W.3d at 476.

Additionally, under Texas law, “extreme risk” in the gross negligence context “is a

function of both the magnitude and probability of the potential injury.” Graham v.

Adesa, Tex., Inc., 145 S.W.3d 769, 772 (Tex. App.—Dallas 2004, pet. denied).

“To assess the degree of risk, the evidence is viewed objectively from the actor’s

standpoint.” Id. at 773.

Garay presented summary judgment evidence from Birdwell employees,

including Jerry Travelstead, Birdwell’s Health & Safety Manager, that Birdwell

did not hold a specific training meeting concerning how to operate the trench roller

in a safe manner. It is undisputed, however, that Paulino had worked for Birdwell

for five years and thus had five years of experience operating the trench roller at

25
issue. See Nabors Drilling, 288 S.W.3d at 412 (holding that employers owe no

duty to warn employees of hazards that are “commonly known or already

appreciated” by employee); LMC Complete Automotive, 229 S.W.3d at 476

(holding same).

Moreover, Birdwell also presented summary judgment evidence that Paulino

himself had taught Cosme Fuentes how to operate the trench roller. Fuentes

testified that he warned Paulino not to stand in between the trench roller and the

concrete wall, that Paulino disregarded the warning, and that Paulino joked about

being crushed by the trench roller moments before the incident. Birdwell also

introduced evidence that it held daily safety meetings before beginning work each

day, that it provided weekly handouts to its employees on safety topics, and that

one of those topics concerned the danger of pinch points and included a warning

never to stand between equipment and a fixed point such as a wall. Thus, even

taking as true Garay’s evidence that Birdwell failed to hold a specific training and

safety meeting regarding the trench roller, we conclude that this evidence does not

raise a fact issue that ordering Paulino to operate the machine on which he had five

years’ worth of experience involved an extreme degree of risk when viewed

objectively from Birdwell’s standpoint at the time of the occurrence. See TEX. CIV.

PRAC. & REM. CODE ANN. § 41.001(11); Ellender, 968 S.W.2d at 921.

26
 2. Mechanical Problems with the Trench Roller

Garay and A.O. argue that summary judgment evidence establishes that the

trench roller’s remote control was unreliable and had malfunctioned on previous

occasions, that the rear safety bar had been missing for long enough that Birdwell

should have known that it was missing, that the emergency shut-off switch did not

work, and that Birdwell did not maintain the trench roller in accordance with the

manufacturer’s instructions. Garay and A.O. argue that Birdwell committed gross

negligence when it ordered Paulino to operate the trench roller despite these

problems with the machine.

Garay and A.O. also argue that Birdwell committed gross negligence when it

ordered Paulino to operate the trench roller manually near the concrete wall. As

Birdwell points out, however, Garay and A.O. presented no evidence that it

ordered Paulino to operate the trench roller manually. Ramon Jaramillo testified

that he had seen Paulino operating the trench roller with the remote control on the

morning of the incident and that he did not know why Paulino switched to

operating the trench roller manually. Garay and A.O. presented evidence that

Birdwell’s repair shop had repaired the trench roller on several occasions in the

two years preceding the incident, including repairing problems with the remote

control, but Garay and A.O. presented no evidence that the remote control did not

work on the day of the incident or that Birdwell knew that it did not work but

27
ordered Paulino to operate the trench roller anyway. See TEX. CIV. PRAC. & REM.

CODE ANN. § 41.001(11) (providing that objective component of gross negligence

requires consideration of actor’s standpoint at time of occurrence); Ellender, 968

S.W.2d at 921 (holding same and stating that to satisfy subjective component, actor

must have “actual, subjective awareness of the risk involved”).

Similarly, Garay and A.O. provided no evidence that Birdwell knew that the

trench roller was missing a safety device—the rear safety bar—but ordered Paulino

to operate the trench roller anyway. Garay and A.O. point to the post-incident

Dynapac report and the OSHA citation, both of which identify the missing rear

safety-bar as a problem with the trench roller. However, neither of these post-

incident reports establishes that, at the time of the occurrence, Birdwell had actual,

subjective awareness of any risk that accompanied operating the trench roller

without the safety bar. See Ellender, 968 S.W.2d at 921. Birdwell submitted

summary judgment evidence demonstrating the contrary—that Birdwell

representatives were not aware of the missing safety bar until after the incident

because the manual for the trench roller did not identify the bar as a safety device.

Birdwell also presented evidence that, at one point, it had the trench roller serviced

by a company authorized by Dynapac, the manufacturer, and that company did not

identify the bar as a safety device or otherwise inform Birdwell that an essential

safety feature was missing from the trench roller. Garay and A.O. thus failed to

28
raise a fact issue on the subjective component of their gross negligence claim with

regard to the missing rear safety bar. See Ellender, 968 S.W.2d at 921; see also

Andrade, 19 S.W.3d at 246–47 (holding that, to establish subjective component of

gross negligence claim, plaintiff must “show that the defendant knew about the

peril, but his acts or omissions demonstrate that he did not care”).

Garay and A.O. also argue that Birdwell committed gross negligence by

requiring Paulino to operate a trench roller with a broken emergency shut off

switch. Garay and A.O. again pointed to the Dynapac and OSHA reports which

noted that the switch was broken, but they failed to present any evidence that

anyone at Birdwell knew, on the day of the incident, that the emergency shut-off

switch did not work. They presented evidence of prior repairs that had been done

to the trench roller, but none of those repairs involved the emergency shut-off

switch, which had never before been identified as a problem. See Waldrip, 380

S.W.3d at 138 (“Even assuming that the parking brake itself, and not merely the

parking-brake light, was malfunctioning, absent positive proof of knowledge by

management, actual knowledge cannot be imputed to UHI based on one entry in a

massive database.”). The post-incident reports by Dynapac and OSHA, even when

taken as true, do not constitute evidence that, at the time of the occurrence,

Birdwell knew that the emergency shut-off switch did not work but required

Paulino to operate the trench roller anyway. See Ellender, 968 S.W.2d at 921.

29
 Thus, Garay and A.O. have not raised a fact issue regarding whether

Birdwell had actual, subjective awareness of the risk posed by requiring Paulino to

operate the trench roller despite the mechanical problems with the equipment but

nevertheless proceeded in conscious indifference to Paulino’s safety and welfare.

See TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11); Ellender, 968 S.W.2d at

921.

3. Birdwell’s Failure to Provide Specific Maintenance and
Training Programs

Garay and A.O. also assert that Birdwell committed gross negligence by

failing to provide specific maintenance programs for its equipment or provide

specific training on safe operation of the trench roller.

The Texas Supreme Court has held that “[c]orporate safety policies, or the

lack of them, can serve as the basis for a gross negligence finding.” Andrade, 19

S.W.3d at 247. In Andrade, the court ultimately held that, under the circumstances

of that case, the lack of a corporate safety policy did not support an inference that

the employer was subjectively aware or consciously indifferent to the risk of

injury. Id. at 248; see also Agrium U.S., Inc. v. Clark, 179 S.W.3d 765, 768 (Tex.

App.—Amarillo 2005, pet. denied) (“[W]hile the existence or non-existence of

safety or corporate policies touching upon the work being done may provide some

basis for a gross negligence finding, that is not always true.”) (internal citations

omitted).

30
 Taking Garay’s and A.O.’s evidence as true, as we must when reviewing a

trial court’s summary judgment ruling, Garay and A.O. presented evidence that

Birdwell did not provide a formal training session on the trench roller involved in

the incident, did not train employees regarding how to turn off the trench roller in

an emergency, and did not have a formal safety policy regarding repairs to

equipment. We conclude that, under the facts of this case, this evidence does not

raise a fact issue on the subjective component of Garay’s and A.O.’s gross

negligence claims. See Andrade, 19 S.W.3d at 247–48; Clark, 179 S.W.3d at 768.

Even though Birdwell did not provide a formal training session concerning

operation of the trench roller and its safety features, such as how to shut the trench

roller off during an emergency, Birdwell did provide Paulino with informal

training on the trench roller, and Paulino operated the trench roller for five years

without incident. See Nat’l Convenience Stores, Inc. v. Matherne, 987 S.W.2d

145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“[A]n employer’s duty

to instruct applies to an inexperienced employee but not to one who is experienced

in the work he is assigned.”); Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977

S.W.2d 746, 755 (Tex. App.—Fort Worth 1998, no pet.) (“[T] he lack of formal

training received [by the employees] was not gross negligence in light of the

hands-on training they received.”). Birdwell presented summary judgment

evidence that it held daily safety meetings before work began each day, that it

31
provided handouts that discussed safety topics to its employees on a weekly basis,

and that one of those handouts warned employees of the dangers of standing

between a piece of equipment and a fixed object such as a wall. Birdwell’s failure

to hold a safety seminar on the specific trench roller operated by Paulino at the

time of the incident does not, under these facts, demonstrate that it acted with

conscious indifference. See Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164,

172 (Tex. 2005) (“Diamond Shamrock’s efforts to protect against those dangers

were imperfect; they may have been negligent. But there is no evidence that

Diamond Shamrock was unconcerned.”); Clark, 179 S.W.3d at 767 (“[A]n actor’s

failure to pursue the safest course available or provide the best warnings

imaginable does not necessarily equate to a want of caring.”).

Furthermore, although Birdwell did not have a “formal safety policy

regarding . . . repairs to equipment,” Birdwell did require its employees to inspect

their equipment daily and to report any issues to their supervisor. Their supervisor

would then contact Birdwell’s repair shop to address the problem. The shop also

inspected each piece of equipment after a particular job finished and before an

employee needed to use the equipment on a new job. Birdwell thus had some

equipment-maintenance procedures in place at the time of the incident. See

Ardoin, 267 S.W.3d at 508 (“The Wyard palletizer had been in use for ten years,

and Ardoin produced no evidence that the company’s existing safety measures had

32
previously failed to protect employees against this particular risk.”). We therefore

conclude that, under the circumstances of this case, Birdwell’s failure to provide a

specific training program on the trench roller and its failure to have a formal safety

policy concerning repairs to equipment do not constitute evidence that Birdwell

had actual, subjective awareness of a risk of injury to Paulino but did not care

about the risk. See Andrade, 19 S.W.3d at 248; Clark, 179 S.W.3d at 769.

Even when taking all of Garay’s and A.O.’s evidence as true, we conclude

that Garay and A.O. failed to present evidence raising a fact issue on the

challenged elements of their gross negligence claims. We therefore hold that the

trial court properly rendered summary judgment in favor of Birdwell.

We overrule Garay and A.O.’s second issue.

Summary Judgment as to A.O.’s Gross Negligence Claim

In her third issue, A.O. contends that, although she did not respond to

Birdwell’s no-evidence summary judgment motion and did not participate in the

summary judgment hearing, this Court should reverse the summary judgment

rendered against her for equitable reasons, specifically, “the principles favoring

adjudication on the merits.”

Absent a timely response, a trial court must grant a no-evidence motion for

summary judgment that meets the requirements of Rule 166a(i). TEX. R. CIV. P.

166a(i) (“The court must grant the motion unless the respondent produces

33
summary judgment evidence raising a genuine issue of material fact.”); Imkie v.

Methodist Hosp., 326 S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2010, no

pet.).

If a nonmovant wishes to assert that, based on the evidence in the record, a

fact issue exists to defeat a no-evidence motion for summary judgment, the

nonmovant must timely file a response to the motion raising this issue before the

trial court.” Id. (citing Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex.

App.—Houston [1st Dist.] 2008, no pet.)); see also Dyer v. Accredited Home

Lenders, Inc., No. 02-11-00046-CV, 2012 WL 335858, at *5 (Tex. App.—Fort

Worth Feb. 2, 2012, pet. denied) (mem. op.) (“[I]n the face of a legally sufficient

motion for no-evidence summary judgment, the nonmovant must file a response to

defeat summary judgment regardless of whether the trial court has before it

evidence that would defeat summary judgment if attached to a timely response.

The nonmovant must bring that evidence to the attention of the trial court or

lose.”).

Here, A.O. failed to file a response to Birdwell’s no-evidence summary

judgment motion and did not appear at the hearing on the motion. Birdwell’s

motion set out the elements of A.O.’s gross negligence claim that, it contended,

lacked evidentiary support, and it was, therefore, a legally sufficient no-evidence

motion. See TEX. R. CIV. P. 166a(i). A.O.’s failure to respond to the no-evidence

34
motion precludes relief in her favor on appeal. See Imkie, 326 S.W.3d at 343;

Landers, 257 S.W.3d at 746. We therefore hold that the trial court properly

granted summary judgment on A.O.’s gross negligence claim.

A.O. cites three Texas Supreme Court cases to support her contention that

because Texas public policy favors adjudication on the merits of a dispute, this

Court should reverse the summary judgment rendered against her.

The first case A.O. cites, Milestone Operating, Inc. v. ExxonMobil Corp.,

388 S.W.3d 307 (Tex. 2012) (per curiam), addresses whether a defendant satisfied

the equitable Craddock factors for setting aside a no-answer default judgment.

Craddock applies to situations in which the defendant moves for a new trial. See

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). A.O. did

not move for a new trial seeking to set aside the summary judgment rendered

against her, nor has she attempted to establish, either in the trial court or on appeal,

the equitable Craddock factors.8 Moreover, the Texas Supreme Court has

explicitly held that Craddock does not apply when, as here, “summary judgment is

granted on a motion to which the nonmovant failed to timely respond when the

8
Even if Craddock applied to this situation, A.O. has not established each element
necessary to set aside the adverse judgment against her. In particular, A.O. cannot
demonstrate that her failure to answer was not intentional or the result of
conscious indifference. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d
124, 126 (Tex. 1939). Current counsel for A.O. conceded that A.O.’s previous
counsel elected not to respond to Birdwell’s no-evidence summary judgment
motion.

35
respondent had notice of the hearing and an opportunity to employ the means our

civil procedure rules make available to alter the deadlines Rule 166a imposes.”

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 683–84 (Tex. 2002).

A.O. further relies on Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) (per

curiam), and Marino v. King, 355 S.W.3d 629 (Tex. 2011) (per curiam), for the

proposition that this Court should set aside the summary judgment against her on

equitable grounds. Both Wheeler and Marino concerned summary judgments

granted after admissions had been deemed against the petitioners and after the

petitioners, both acting pro se, failed to file a formal response to the summary

judgment motions, although both petitioners appeared at and participated in the

summary judgment hearing. See Marino, 355 S.W.3d at 630–31; Wheeler, 157

S.W.3d at 441. In both cases, the supreme court held that the fact the litigants

were pro se, and thus unfamiliar with deemed admissions and summary judgment

procedures, was of paramount importance in determining that the litigants had

good cause for the withdrawal of deemed admissions and the allowing of a late

summary judgment response. See Marino, 355 S.W.3d at 633–34; Wheeler, 157

S.W.3d at 443–44. Here, however, counsel represented A.O. in the trial court, and

counsel specifically elected not to file a summary judgment response on A.O.’s

behalf or join Garay’s response. The equitable concerns present in Marino and

Wheeler are thus not present here.

36
 We overrule Garay and A.O.’s third issue.9

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

9
We further note that Garay and A.O. raised identical claims against Birdwell. We
have already determined that Garay failed to raise a fact issue on her gross
negligence claim sufficient to defeat summary judgment.

37