NUMBER 13-10-00238-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
D. CHRISTOPHER PETERSON, INDIVIDUALLY AND
AS ADMINISTRATOR OF THE ESTATE OF
MATTHEW C. PETERSON, DECEASED AND
JUDITH PETERSON, Appellants,
v.
RES AMERICA CONSTRUCTION, INC.,
RENEWABLE ENERGY SYSTEMS
AMERICAS, INC. (“RES-A”)
AND RES (CONSTRUCTION), L.P. (“RES-C”)., Appellees.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Vela and Perkes
Memorandum Opinion by Justice Garza
Appellants, Christopher D. Peterson, individually and as administrator of the
estate of Matthew C. Peterson, deceased, and Judith Peterson, challenge the trial
court‘s summary judgment dismissing their wrongful death suit against appellees, RES
America Construction, Inc. (―RES-AC‖), Renewable Energy Systems Americas, Inc.
(―RES-A‖) and RES (Construction), L.P. (―RES-C‖).1 By two issues, appellants contend
that they raised fact questions as to their premises liability and negligence claims. We
affirm.
I. BACKGROUND
Matthew Peterson, an employee of DNV Global Energy Concepts, Inc. (―DNV‖),
was working in 2008 at a wind farm being constructed on a portion of the Kenedy Ranch
in Sarita, Texas. RES served as the general contractor overseeing construction at the
wind farm, and DNV had contracted with RES to build meteorological towers (―met
towers‖) at the site. On or about November 9, 2008, Peterson and a co-worker entered
the ranch in order to install a guyed boom on sections of one of the towers. Peterson
climbed the tower to a height of approximately eight feet in order to install an
anemometer2 on the guyed boom. However, the tower was not properly located, nor
was it properly anchored to the ground or stabilized. As a result, the tower fell and
pinned Peterson to the ground, causing him to suffer severe injuries, and ultimately
causing his death.
Appellants, Peterson‘s parents, filed a wrongful death suit against RES and
several other defendants.3 The Petersons claimed that RES was a ―possessor‖ of the
1
All three appellees will be referred to collectively as ―RES.‖
2
An anemometer is an instrument used to measure the force or speed of wind. MERRIAM
W EBSTER‘S COLLEGIATE DICTIONARY 44 (10th ed. 1996).
3
The other named defendants are: Ionos Communications; SNET, L.L.C. d/b/a Southern
Networks and Southern Networks, L.L.C.; Richard Elizondo d/b/a Ionos Communications; AJM Group,
2
wind farm site at the time of their son‘s accident, and therefore, RES ―exercised control‖
over the premises and was liable under a premises liability theory. They further
asserted a traditional negligence claim, as well as a claim of negligent undertaking.
Under the latter theory, the Petersons alleged that RES ―voluntarily or gratuitously . . .
undertook (1) the job of building the road that led to the subject met tower staging area
and (2) site safety.‖ The Petersons claimed that RES knew or should have known that
these services were ―necessary‖ for their son‘s protection, that Matthew relied upon
RES‘s performance of these services, and that RES failed to exercise reasonable care
in performing those services. More specifically, the Petersons alleged that ―[t]he road
was built with defects, which defects directly led to the unsafe placement of the subject
tower section in the soft, sandy wetlands area.‖
RES subsequently answered the suit and filed two ―hybrid‖ motions for traditional
and no-evidence summary judgment.4 In the first motion, RES-AC and RES-A
contended that: (1) RES was not the possessor of the premises; (2) RES ―played no
role in causing and/or contributing‖ to the creation of a condition on the premises posing
an unreasonable risk of harm to Peterson; (3) RES had no actual or constructive
knowledge of any such condition; and (4) RES owed no legal duty to Peterson and
breached no such duty. In support of their motion, RES-AC and RES-A pointed to a
contract dated February 15, 2008, between RES-C and Gulf Wind LLC (―Gulf Wind‖).
According to the summary judgment motion, because the contract demonstrated no
legal relationship between RES-AC or RES-A with Gulf Wind, the owner of the site at
LLC; Arnold Quintanilla d/b/a AJM Group, LLC; and Gravitec Systems, Inc. None of these entities are
parties to this appeal.
4
One of the hybrid summary judgment motions was filed by appellees RES-AC and RES-A; the
other was filed by appellee RES-C.
3
issue, those two RES entities were entitled to summary judgment. In the second hybrid
summary judgment motion, RES-C claimed that there was no evidence for the
Petersons‘ claims and argued further that the construction of met towers was explicitly
excluded from the contract‘s definitions of the ―Project‖ at issue and RES‘s ―Scope of
Work‖ with respect to the project.5 Therefore, according to RES, it owed no duty to
Peterson and was entitled to traditional summary judgment.6
The Petersons filed a response to the first summary judgment motion arguing
that RES was a ―possessor‖ of the site, that RES controlled the details of the work of
5
The contract defined the ―Project‖ as:
the integrated wind-powered electric generating facility . . . to be located on the Project
Site, consisting of all foundations, structures, facilities, appliances, lines, [t]ransformers,
WTGs [wind turbine generators], conductors, instruments, equipment, apparatus,
components, roads and other property comprising and integrating the entire facility
described generally in the Scope of Work and the Technical Specifications.
The ―Scope of Work‖ was defined as
the services and work to be provided, or caused to be provided, by or through [RES-C]
under this Agreement for the Contract Price, as more specifically described in Exhibit A
and the Technical Specifications, as the same may be amended from time to time in
accordance with the terms hereof.
Part A of Exhibit A to the agreement listed specific tasks that are included in the scope of work. Part B of
Exhibit A states that, ―[n]otwithstanding any conflicting statement in Part A of Exhibit A or elsewhere in the
Agreement, the following items are not included in [RES-C]‘s Scope of Work,‖ and includes the following:
18. CONTRACTOR EXCLUSIONS – MET MASTS/POWER CURVE TESTING
18.1 General
(i) Procurement and installation of met masts and instrumentation needed
for the temporary and permanent metrological [sic] towers.
(ii) Temporary power to met masts
(iii) Site calibration
(iv) Power curve testing
(v) Met tower FAA lights
6
This argument, regarding the definition of RES‘s ―Scope of Work,‖ was also advanced by RES-
AC and RES-A in the first summary judgment motion.
4
subcontractors, that it failed to warn of a dangerous condition, and that it undertook to
perform work at the site. The Petersons attached several deposition transcripts to their
response7 in support of their contention that fact issues existed on their causes of action
against RES. One of those depositions was by Robert Elizondo, a forklift operator
employed by Ionos Communications (―Ionos‖), which was DNV‘s subcontractor in
charge of, among other things, determining where to place the met towers. Elizondo
stated he participated in the staging of the tower section which eventually collapsed and
caused Peterson‘s death. Elizondo agreed that, when the tower section was lowered
into place, he noticed that it ―s[a]nk, to some extent, in the soft sand‖ underneath.
Elizondo stated that the path leading to the erection site was initially ―sand, soft sand,
and we couldn‘t drive equipment or trucks out to the site because the sand was so soft.‖
Elizondo contacted a colleague at Ionos, ―and he contacted RES, and they sent
operators and equipment out there and installed a small caliche road.‖ However, ―[t]he
road was small, narrow, and we deemed [it] insufficient for supporting the weight of the
crane that was to be coming in.‖ According to Elizondo, the condition of the road was
the reason that the tower section was eventually placed in soft sand:
Q. [Petersons‘ counsel] Okay. So as you‘re going down the road with
this tower section and you‘re going to stage it,
how do you decide that you want to put it in
that particular location?
A. [Elizondo] It was just—at that point, we already knew the
viability of the road was bad. We were going to
have problems. So we just set it on the left-
hand side, out of the way.
John Bruce, an RES representative, testified that a request was made to him to
7
Many of these deposition transcripts, as they appear in the record before this Court, are missing
critical pages. Moreover, several of the transcripts appear to have pages cobbled together haphazardly
from different depositions. We will consider the deposition transcripts in our analysis only insofar as we
can make sense of them.
5
―form an access road to the met mast.‖ After the request was made, Bruce instructed
another RES employee, Tony LePape, to hire Ballenger Construction Co. (―Ballenger‖)
to construct the road. Andrew Fowler, RES‘s senior vice president for construction,
acknowledged that RES supervised the road construction and that this construction was
critical to other work being done on the site:
Q. [Petersons‘ counsel] Did RES supervise the construction of the
roads?
A. [Fowler] Yes.
....
Q. Would it be correct to say that a lot of the work
done out there is dependent upon the
roadwork that takes place?
A. Yes.
Q. You got—roads are part of the infrastructure
and you got to get your infrastructure in place
before you can start putting up your turbines?
A. Yes.
Fowler also stated that ―wetland areas were demarcated throughout the site and we
instructed our subcontractors not to go in the wetlands.‖
Peterson further argued in his response that RES exercised ―substantial control
over the premises and the work details of the many companies at the site.‖ In support
of this contention, Peterson pointed to a ―Site Passport‖ issued by RES which provided
dozens of rules and regulations required to be obeyed by workers on the site. Those
rules included the following:
3) All climbing and lifting equipment must be inspected every day
before use and defective equipment replaced immediately.
....
6
7) All traffic must stay on designated roads and rights-of-way. Do not
turn around or back into grass areas unless clearly marked by
clearing stakes. DO NOT drive outside clearing limits, and stay
away from sensitive areas such as wetlands and sand dunes.
....
21) All personnel must attend site safety ―tailgate talks‖ with their
employers at least once a week; these meetings must be
documented on a record sheet.
....
28) RES operates a ―Three Strikes‖ rule for safety violations: Verbal,
Written, and Dismissal. Major violations, such as violence (or
threat thereof) towards others, drug or alcohol abuse and/or willful
negligence will result in violators being immediately removed from
site without warning. RES management will determine what
constitutes a major violation.
....
33) All work crews must carry the emergency contact information and a
cell phone or 2-way radio for safety. Nobody shall ever be unable
to reach others for help.
....
36) All near misses and accidents must be reported to the RES office
immediately and preventative measures taken to stop the incident
from reoccurring. This includes damage to ranch property, or
accidents with livestock or wild game.
The Petersons note that minutes from a ―Site Safety and Environment Meeting‖
held at the Gulf Wind project site on October 22, 2008, indicated that all workers on site
were instructed to ―[s]tay off all wetlands unless authorized by RES‖ and that all
subcontractors needed to ―identify staging areas at each work site.‖ Additionally, RES
operated an ―Illness and Injury Prevention Program‖ which was explained in a document
attached as an exhibit to the main contract with Gulf Wind. According to that document,
RES site safety inspectors are required to ―[b]ring to the attention of subcontractors any
7
activities that present a hazard to their own personnel, other personnel, operatives or
the general public.‖ The Petersons contend that, in the instant case, RES‘s site safety
inspector did not comply with this policy.
Finally, the Petersons attached to their response a work permit issued by RES to
Ionos, entitled ―Permit to Excavate,‖ dated January 30, 2009, and signed by Gary
Kriegel, an RES representative. The permit stated: ―I have checked that all precautions
have been taken to ensure the safety of the excavation work detailed above. I consider
it safe to carry out the work between the times and dates specified.‖
The trial court granted RES‘s summary judgment motions without stating the
grounds upon which they were granted. Peterson‘s causes of action against RES were
severed from his causes of action against the other defendants, and he filed this appeal.
II. DISCUSSION
A. Standard of Review
A motion for summary judgment may be brought on no-evidence or traditional
grounds. See TEX. R. CIV. P. 166a(c), (i). A motion for no-evidence summary judgment
is equivalent to a motion for pretrial directed verdict, and we apply the same legal
sufficiency standard on review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006); Ortega v. City Nat’l Bank, 97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003,
no pet.) (op. on reh‘g); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San
Antonio 1998, writ denied). Such a motion should be granted if there is no evidence of
at least one essential element of the plaintiff‘s claim. Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008) (per curiam). The burden of producing evidence is entirely on the
non-movant; the movant has no burden to attach any evidence to the motion, and if the
non-movant produces evidence raising a genuine issue of material fact, summary
8
judgment is improper. TEX. R. CIV. P. 166a(i). All that is required of the non-movant is
to produce a scintilla of probative evidence to raise a genuine issue of material fact on
the challenged element. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167,
172 (Tex. 2003); Ortega, 97 S.W.3d at 772. ―Less than a scintilla of evidence exists
when the evidence is ‗so weak as to do no more than create a mere surmise or
suspicion of a fact.‘‖ Ortega, 97 S.W.3d at 772 (quoting Kindred v. Con/Chem, Inc., 650
S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124 S.W.3d at 172. Conversely, more than a
scintilla of evidence exists when reasonable and fair-minded individuals could differ in
their conclusions. Forbes, 124 S.W.3d at 172; Ortega, 97 S.W.3d at 772 (citing Transp.
Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In determining whether the non-
movant has produced more than a scintilla of evidence, we review the evidence in the
light most favorable to the non-movant, crediting such evidence if reasonable jurors
could and disregarding contrary evidence unless reasonable jurors could not. Tamez,
206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 825, 827 (Tex. 2005).
We review the trial court‘s granting of a traditional motion for summary judgment
de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no
pet.). When reviewing a traditional summary judgment, we must determine whether the
movant met its burden to establish that no genuine issue of material fact exists and that
the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant bears the burden of proof
and all doubts about the existence of a genuine issue of material fact are resolved
against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all
9
evidence favorable to the non-movant, and we indulge every reasonable inference and
resolve any doubts in the non-movant‘s favor. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005).
When, as here, an order granting summary judgment does not state the specific
grounds on which summary judgment was granted, we will uphold it on any meritorious
ground presented in the motion. Cincinnati Life Ins. Co. v. Cates, 947 S.W.2d 608, 610
(Tex. 1997). Moreover, when a party moves for summary judgment under both rules
166a(c) and 166a(i) of the Texas Rules of Civil Procedure, we first review the trial
court‘s judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). If the appellant fails to produce more than a scintilla of
evidence under that burden, then there is no need to analyze whether appellee‘s
summary judgment proof satisfies the rule 166a(c) burden. Id.
B. Premises Liability
By their first issue, the Petersons argue that they presented evidence creating a
genuine issue of material fact as to their premises liability claim. It is undisputed that
Peterson, as an employee of an independent contractor, was an invitee on the Gulf
Wind project site. Therefore, to survive summary judgment on their premises liability
claim, the Petersons were required to establish that: (1) RES was a possessor of the
property; (2) RES knew8 or should have known of a dangerous condition on the
premises; (3) the condition presented an unreasonable risk of harm; and (4) the
condition proximately caused Peterson‘s injuries. See Brinson Ford, Inc. v. Alger, 228
S.W.3d 161, 162 (Tex. 2007) (citing Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d
8
There was no evidence presented that RES had actual knowledge of the defect at issue prior to
Peterson‘s accident.
10
752, 754 (Tex. 1970)); see also Shell Oil Co. v. Khan, 138 S.W.3d 288, 291-92 (Tex.
2004) (noting that a general contractor owes the same duty as a premises owner to an
independent contractor‘s employee); Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.
1999). When a general contractor knows or should have known of a dangerous
condition on the premises, it is required to ―take whatever action is reasonably prudent
under the circumstances to reduce or to eliminate the unreasonable risk from that
condition.‖ TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-765 (Tex. 2009) (citing
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)).
A general contractor is considered a ―possessor‖ of the property at issue if it
retains the right of supervisory control over work on the premises. See Coastal Marine
Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225-26 (Tex. 1999) (citing Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997)); Thornhill v. Ronnie’s I-45
Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—Beaumont 1997, writ denied). ―In
determining whether an owner has retained this right to control, the standard is narrow.
The right to control must be more than a general right to order work to stop and start, or
to inspect progress.‖ Coastal Marine Serv., 988 S.W.2d at 226. The supervisory
control must relate to the activity that actually caused the injury, and grant the general
contractor at least the power to direct the order in which work is to be done or the power
to forbid it being done in an unsafe manner. See id. (citing Olivo, 952 S.W.2d at 528;
Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); Redinger, 689 S.W.2d at 418).
―There must be such a retention of a right of supervision that the contractor is not
entirely free to do the work in his own way.‖ Koch Ref. Co., 11 S.W.3d at 155 (citing
RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)).
11
A party can prove the right to control in two ways: first, by evidence of a
contractual agreement which explicitly assigns the general contractor a right to control;
and second, by evidence that the general contractor actually exercised control over the
job. See id. (citing Olivo, 952 S.W.2d at 528). Generally, the former is a question of law
for the court and the latter is a question of fact for the jury. Shell Oil Co., 138 S.W.3d at
292. The Petersons argue both theories.
First, the Petersons argue that the contract executed by RES and Gulf Wind
―clearly establish[es] that RES had a right to control the property.‖ They also point to
the ―Site Passport‖ issued by RES which requires, among other things, that ―[a]ll
climbing and lifting equipment must be inspected every day before use and defective
equipment replaced immediately.‖ However, a contract requiring independent
contractors to comply with general safety practices and train their employees to do so
does not constitute a right to control job-site safety. Id. at 293-94 (citing Dow Chem.
Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002) (finding no right to control raised by
allegation that subcontractor‘s employees were required to be ―indoctrinated‖ with
general contractor‘s safety rules); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354,
357-58 (Tex. 1998) (finding no right to control in contractual provision requiring
contractor to train its employees in general contractor's safety-related rules and
regulations)). Instead, requiring subcontractors‘ employees to learn and follow general
safety procedures subjects an owner only to a ―narrow duty to avoid increasing the risk
of injury.‖ Id. (citing Koch Ref. Co., 11 S.W.3d at 156; Hoechst-Celanese Corp., 967
S.W.2d at 357-58). Here, the Petersons did not allege or present evidence that the
RES‘s promulgation of safety rules and regulations in the main contract or site passport
increased any risk of injury to Peterson. See id. Moreover, as noted by RES, the main
12
contract specifically excluded the work Peterson was doing at the time he was injured—
installation of instrumentation on met masts—from the description of RES‘s scope of
work. We conclude that there is no evidence that RES retained a contractual right of
control over DNV or Peterson with respect to the activity Peterson was engaged in at
the time of his injuries.
The Petersons further argue that, regardless of the contracts, the conduct of RES
―shows that they exercised actual control of the premises.‖ They point specifically to:
the ―Site Passports‖; RES‘s ―Illness and Injury Prevention Program‖; Elizondo‘s
deposition testimony in which he stated that RES was ―the boss,‖ it was ―their site,‖ and
he followed ―their rules‖; Fowler‘s testimony that RES ―supervised‖ the construction of
the roads leading to the met tower staging site and that all subcontractors were
instructed ―not to go in the wetlands‖; the work permit issued to Ionos dated January 30,
2009; and the minutes from the safety meeting held on October 22, 2008. We find that
none of these constitute evidence that RES ―actually exercised control over the job.‖
See Coastal Marine Serv., 988 S.W.2d at 226. The site passports do not list any rules
arguably applicable to the proper staging of met towers. The ―Illness and Injury
Prevention Program‖ applied only to RES employees, and so could not establish a right
of control over independent contractor employees such as Peterson. While Elizondo
did state that RES was ―the boss,‖ he agreed that ―RES didn‘t at all get involved in the
actual work that you were doing out there in terms of the erection of the [met] towers.‖
The 2009 work permit was not evidence that RES retained a right to control DNV‘s or
Peterson‘s work as of November 9, 2008, when the injury occurred. The safety meeting
minutes noted that all subcontractors were required to ―identify staging areas‖ but do not
establish that RES actually retained the right to control where the staging areas were
13
located. Finally, although RES may have ―supervised‖ road construction, and that road
construction may have led to the improperly-staged met tower, that is not enough under
the applicable law to establish that RES was a ―possessor‖ of the property such that it
would be liable under a premises defect theory. See Koch Ref. Co., 11 S.W.3d at 155
(noting that the right of control must be such ―that the contractor is not entirely free to do
the work in his own way‖); Coastal Marine Serv., 988 S.W.2d at 226 (noting that the
right of control ―must relate to the activity that actually caused the injury‖).
We conclude that the trial court did not err in granting RES‘s no-evidence
summary judgment motion with respect to the Petersons‘ premises liability claim. See
TEX. R. CIV. P. 166a(i). Issue one is overruled.
C. Negligence and Negligent Undertaking
By their second issue, the Petersons contend that they produced more than a
scintilla of evidence establishing RES‘s liability under traditional negligence and
negligent undertaking theories. Again, we disagree.
A general contractor generally owes no duty to ensure that its independent
contractors perform their work in a safe manner. Gen. Elec. Co. v. Moritz, 257 S.W.3d
211, 214 (Tex. 2008). However, as with a premises liability claim, one who retains a
right to control the contractor‘s work may be held liable for negligence in exercising that
right. Id. Here, we have already determined that the Petersons have not met their
burden to produce evidence raising a genuine issue of material fact as to whether RES
retained a right to control DNV‘s or Peterson‘s work. Accordingly, no-evidence
summary judgment in favor of the RES entities on the Petersons‘ traditional negligence
claim was proper. See TEX. R. CIV. P. 166a(i).
14
We further conclude that the Petersons have not met their burden with respect to
their claim of negligent undertaking. Under that theory,
[o]ne who undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the protection of
the other‘s person or things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other‘s reliance upon the
undertaking.
Torrington Co. v. Stutzman, 46 S.W.3d 829, 839 (Tex. 2000) (citing RESTATEMENT
(SECOND) OF TORTS § 323 (1965)). The Petersons alleged specifically that RES
undertook the job of building the road that led to the met tower staging area, that they
did the job negligently, and that this led to Peterson‘s injuries. Without considering
whether evidence was produced that RES was negligent in constructing the road or
whether Peterson relied on RES‘s performance in that regard, we find that the faulty
nature of the road was not a proximate cause of Peterson‘s death. The Petersons
essentially assert that the condition of the road was so poor, and its dimensions so
narrow, that it was insufficient to support the weight of the crane that was to be used for
constructing the met towers, and the met towers therefore had to be staged in a soft,
grassy area, which led to Peterson‘s fall. However, it was Ionos that actually decided to
place the met tower sections on the unstable patch of land. Moreover, there is no
evidence that Ionos was incapable of contacting RES to inform it that no safe staging
area was available for the met tower sections, or to request that it reconstruct or
reconfigure the road to make it suitable for those purposes.
15
Under these circumstances, we agree with RES that, at most, RES‘s conduct in
building the road merely furnished the condition that made Peterson‘s injury possible,
which is insufficient to establish legal cause. See Roberts v. Healey, 991 S.W.2d 873,
878 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (―Cause in fact does not exist if
the defendant‘s negligence does no more than furnish a condition which made the injury
possible.‖) (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)); see
also Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211, 224 (Tex. 2010) (―[F]or an act or
event to rise to the level of cause in the legal sense, the act or event must be such that
reasonable jurors would identify it as being actually responsible for the ultimate harm.
The cause must be more than one of the countless ubiquitous and insignificant causes
that in some remote sense may have contributed to a given effect as, for example,
simply getting up in the morning.‖).
We conclude that the trial court did not err in granting no-evidence summary
judgment to all three RES entities on the Petersons‘ negligent undertaking claim.9 See
TEX. R. CIV. P. 166a(i). The Petersons‘ second issue is overruled.
III. CONCLUSION
Having overruled the Petersons‘ two issues, we affirm the judgment of the trial
court.
DORI CONTRERAS GARZA
Justice
Delivered and filed the
30th day of June, 2011.
9
We need not address the Petersons‘ contention that ―each of the various RES entities as the
RES companies are vicariously liable for the conduct of the limited partner, in this case, [RES-C], through
the theory of joint enterprise,‖ because, even if RES-A and RES-AC were vicariously liable, we have
already determined that no-evidence summary judgment in favor RES-C was proper with respect to all of
the Petersons‘ claims.
16