Affirmed and Memorandum Opinion filed April 18, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00481-CV
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ROSA MARIA HERNANDEZ LOPEZ, Individually; as Representative of the Estate of VICTOR ESCOBAR, Deceased; and a/n/f of VICTOR RAMON ESCOBAR, ROSINA ESCOBAR HERNANDEZ and MANUEL ESCOBAR HERNANDEZ, Minors; Appellant
V.
HARSCO CORPORATION, Appellee
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Cause No. 03-01941
M E M O R A N D U M O P I N I O N
Appellant challenges the granting of summary judgment in favor of appellee, Patent Construction Systems, a division of Harsco Corporation, on appellant=s negligence and gross negligence claims. We affirm.
Factual and Procedural Background
Victor Escobar died from a fall during an asbestos abatement project at Jones Hall in downtown Houston. The City of Houston hired Escobar=s employer, Certified/LVI Environmental Services, Inc. (hereinafter ACertified/LVI@) as general contractor for removal of asbestos in the attic of Jones Hall. Certified/LVI contracted with various subcontractors, including Patent Construction Systems (hereinafter APatent@), which was hired to install scaffolding for the asbestos workers to stand on while inside the attic removing asbestos. In the contract, Patent agreed to install all scaffolding according to Occupational Safety and Health Administration (AOSHA@) standards. Patent=s requirements included working ahead of Certified/LVI to install scaffolding before Certified/LVI employees needed to use the scaffolding. OSHA standards require the leading edge of scaffolding to be no more than 14 inches from the face of the working wall unless guardrails are in place or workers wear a personal fall arrest protection system.[1]
Sometime after the project began, Certified/LVI=s foreman asked the foreman at Patent to remove the guardrails from the scaffolding because they impeded the workers= ability to efficiently remove asbestos. Patent complied with the request but insisted workers utilize personal fall arrest protection. Certified/LVI workers wore a harness with a lanyard attached to the harness and a steel cable, which was anchored to a beam or column.
On November 6, 2002, Victor Escobar, while not wearing his personal fall protection system, left the walkway and scaffolding installed by Patent. He stepped into the soffit area of the Jones Hall attic and onto a travertine marble panel, where he fell through the travertine panel onto the street below.[2] Escobar fell more than 50 feet and died at the scene before emergency personnel arrived.
Appellant, Rosa Maria Hernandez Lopez, wife of Victor Escobar, on behalf of herself, her husband, and the minor children of Escobar, sued Certified/LVI for gross negligence and the City of Houston for negligence. Appellant later added claims against Patent Construction Systems, a division of Harsco Corporation, and Honesty Environmental Services, Inc. for negligence and gross negligence. Appellant settled all claims with the City of Houston, Certified/LVI, and Honesty Environmental Services. Patent filed traditional and no evidence motions for summary judgment asserting no duty or causation existed to support the claims. Based on Patent=s motion, appellant=s reply, and attached exhibits, the trial court granted Patent=s motions for summary judgment as to all claims. This appeal ensued.
Discussion
In one issue, appellant contends the trial court erroneously granted summary judgment in light of the expert testimony and other evidence raising a fact issue as to duty and causation. We review the granting of summary judgment de novo to determine whether summary judgment proof establishes as a matter of law there is no genuine issue of material fact. Provident Life & Accident Ins. Co v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Nixon v. Mr. Property Mgmt. Co. Inc., 690 S.W.2d 546, 548B49 (Tex. 1985).
The movant for a traditional summary judgment has the burden to show there is no genuine issue of material fact and is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. A moving defendant has the burden to conclusively disprove an element of the plaintiff=s cause of action or conclusively prove all of the elements of an affirmative defense that would overcome plaintiff=s cause of action. Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 500 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). Once the defendant meets this burden, the plaintiff must produce sufficient evidence to raise a fact issue as to those elements. Cruikshank, 138 S.W.3d at 500. Summary judgment in favor of a defendant is only proper if, as a matter of law, the plaintiff could not succeed on any of the theories pleaded. Id. We take all evidence
favorable to the non-movant as true, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in its favor. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Nixon, 690 S.W.2d at 548B49.
When the defendant moves for a no-evidence summary judgment, it must specifically state the elements of a claim as to which there is no evidence. Tex. R. Civ. P. 166a(i); Cruikshank, 138 S.W.3d at 500. Once a no-evidence summary judgment has been filed, the non-movant must bring forth more than a scintilla of evidence to raise a fact issue on the challenged elements. Cruikshank, 138 S.W.3d at 500. The evidence amounts to more than a scintilla when it Arises to a level that would enable reasonable and fair-minded people to differ in their conclusions.@ King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We review the granting of a no-evidence summary judgment in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.CHouston [1st Dist.] 1999, no pet.).
Appellant contends Patent owed a duty to Escobar under several different theories, including breach of contract, creating a dangerous condition, and negligent design and placement of the scaffolding. Appellant also contends Patent breached its duty by locating the scaffolding too far from the face of the wall where Escobar needed to work. Appellant further contends that, if the scaffolding had been closer to the wall, Escobar would have been able to reach his work surface and would not have needed to step off the scaffolding onto another unsafe location from which he fell.
The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The threshold inquiry is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A reviewing court may assume the existence of a duty and resolve the appeal on the basis of the other elements, such as proximate cause. Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). We, therefore, assume without deciding Patent owed Escobar a duty.
Proximate cause requires proof of cause in fact and foreseeability. IHS Cedars Treatment Ctr., 143 S.W.3d at 798. Cause in fact and foreseeability cannot be satisfied by mere conjecture, guess, or speculation. Id. at 798B99. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, harm would not have occurred. Id. at 799. Cause in fact is not established when the defendant=s negligence does no more than furnish a condition which makes the injuries possible. Id. Therefore, even if the injury would not have occurred but for the defendant=s conduct, the conduct of the defendant may be too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing about the harm. Id.
Foreseeability means the actor should have anticipated the dangers his negligent conduct created for others. Reed v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998); Taylor, 158 S.W.3d at 9. Foreseeability does not require the actor to anticipate the precise manner in which injury will occur once the dangerous situation is created, but only that the general character might reasonably have been anticipated. Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 478 (Tex. 1995); Taylor, 158 S.W.2d at 9.
Appellant established through summary judgment evidence that Escobar stepped off the scaffolding to work in the soffit area of the Jones Hall attic either to conduct the preparatory work of laying polyethylene covering as a containment area for asbestos removal or to clean asbestos debris which fell into the soffit area. Depositions of two Certified/LVI employees revealed that this area, specifically the soffit area, was off limits to workers because the travertine marble panels were not safe enough to support the weight of an adult male. The deposition of Jeff Galvan, Vice President of Certified/LVI, also revealed Patent was not required to build scaffolding over the soffit area because no asbestos was to be removed from there; rather, Certified/LVI employees were to clean any asbestos material that may have fallen into the soffit area by using HEPA vacuums with 12 foot long extensions.
Moreover, Escobar stepped off the scaffolding. Appellant argues Escobar would not have had to step off the scaffolding if the scaffolding was built closer to the working wall. Even if we agree with appellant and the distance created a need for Escobar to step off the scaffolding, the distance of the scaffolding to the wall only furnished a condition which made Escobar=s injuries possible. Escobar apparently needed to access an area which was not reachable while standing on the scaffolding, so he stepped off the scaffolding while not wearing his personal fall protection. The distance of the scaffolding from the wall may have made Escobar=s injuries possible, but it was not a substantial factor in bringing about the harm to Escobar. Escobar did not fall from the scaffolding.
Furthermore, Escobar=s fall from a restricted area of the attic was not a foreseeable danger of any negligent design or construction of the scaffolding. No requirements existed for Patent to create scaffolding over the soffit area of the Jones Hall attic. All employees were required to tie off for personal protection while in this area.[3] Patent could not have foreseen or protected against the danger of a situation where a worker stepped off Patent=s scaffolding to work in a restricted area, while not wearing personal fall protection, and then fell through that restricted area to the sidewalk below.
Even if Escobar=s accident would not have occurred but for the defendant=s design and placement of the scaffolding, Patent=s conduct is too attenuated from the resulting injuries to Escobar to be a substantial factor in bringing about the harm. See IHS Cedars Treatment Ctr., 143 S.W.3d at 798B99 (holding cause in fact and foreseeability may not be satisfied by mere conjecture, guess, or speculation). Therefore, we overrule appellant=s issue on appeal challenging the granting of Patent=s traditional summary judgment motion because appellant failed to raise a fact issue as to causation. Likewise, we overrule appellant=s issue on appeal challenging the granting of Patent=s no evidence summary judgment motion because appellant has failed to bring forth a scintilla of evidence raising a fact issue as to the element of causation.
Conclusion
For these reasons, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed April 18, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Anderson.
[1] See 29 C.F.R. ' 1926.451(b)(3) (2005).
[2] Jones Hall is a cylindrical building with a square attic, where the corners of the attic overhang the cylinder base above the sidewalk outside. The overhanging corner area is the soffit. When stepping onto the soffit area, Escobar fell through this portion of the attic floor to the sidewalk below.
[3] Patent=s construction manager, Dave Jefferies, testified during his deposition that on approximately four or five occasions, he saw Certified/LVI employees not wearing their personal fall protection system when on the scaffolding. Jefferies testified that each time he saw this occur, he notified someone in authority at Certified/LVI, and those respective individuals at Certified/LVI said they would do something about it. No deposition excerpts in the record revealed anyone from Certified/LVI recalling these conversations occurring with them. We view this apparent conflict in testimony in a light most favorable to appellant.