ACCEPTED
12-15-00121-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/15/2015 9:45:20 PM
Pam Estes
CLERK
No. 12-15-00121-CV
_____________________________________________________________
FILED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
FOR THE TWELFTH DISTRICT OF TEXAS
10/15/2015 9:45:20 PM
TYLER, TEXAS PAM ESTES
Clerk
_____________________________________________________________
GARRY L. ROLLINS AND CARLA D. ROLLINS,
Appellants
V.
TEXAS COLLEGE AND
MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
Appellees
_____________________________________________________________
Appeal from Cause No. 13-3353-A
In the 7th District Court of Smith County, Texas
_____________________________________________________________
BRIEF of APPELLANTS
GARRY L. ROLLINS AND CARLA D. ROLLINS
_____________________________________________________________
Sigmon Law, PLLC
Ernesto D. Sigmon
State Bar No. 24010397
2929 Allen Parkway, Suite 200
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
ORAL ARGUMENT REQUESTED
No. 12-15-00121-CV
_____________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
TYLER, TEXAS
_____________________________________________________________
GARRY L. ROLLINS AND CARLA D. ROLLINS,
Appellants
V.
TEXAS COLLEGE AND
MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
Appellees
_____________________________________________________________
IDENTITY OF THE PARTIES AND COUNSEL
_____________________________________________________________
APPELLANTS:
Garry L. Rollins
Carla D. Rollins
ATTORNEYS FOR APPELLANTS:
Trial Counsel
Ernesto D. Sigmon
State Bar No. 24010397
SIGMON LAW, PLLC
2929 Allen Parkway, Suite 200
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
Appellate Counsel
Ernesto D. Sigmon
State Bar No. 24010397
SIGMON LAW, PLLC
416 West Saulnier Street
2929 Allen Parkway, Suite 200
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
FIRST APPELLEE:
Texas College
ATTORNEYS FOR APPELLEE, TEXAS COLLEGE
Trial Counsel:
Mr. Trey Yarbrough
YARBROUGH WILCOX GUNTER, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
Telephone: (903) 595-3111
Facsimile: (903) 595-0191
Lead Appellate Counsel:
Greg Smith
Texas Bar No. 18600600
Nolan D. Smith
Texas Bar No. 24075632
RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500
Tyler, Texas 75702
Telephone: 903-597-3301
Facsimile: 903-597-2413
Associate Appellate Counsel:
Mr. Trey Yarbrough
YARBROUGH WILCOX GUNTER, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
Fax: 903.595.0191
SECOND APPELLEE:
MPF Investments, LLC, d/b/a "A-1 Rent All"
ATTORNEYS FOR APPELLEE, MPF INVESTMENTS
Trial Counsel:
Todd M. Lonergan
Texas Bar No. 12513700
lonergan@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Ryan K. Geddie
Texas Bar No. 24055541
geddie@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile
Lead Appellate Counsel:
Levon G. Hovnatanian
Texas Bar No. 10059825
hovnatanian@mdjwlaw.com
lonergan@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Associate Appellate Counsel:
Todd M. Lonergan
Texas Bar No. 12513700
lonergan@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Ryan K. Geddie
Texas Bar No. 24055541
geddie@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile
TRIAL COURT:
Cause No. 13-3353-A
7th District Court of Smith County, Texas
Honorable Kerry L. Russell, Presiding
CONTENTS
INDEX OF AUTHORITIES ...............................................VII
STATEMENT OF THE CASE.............................................. 1
1. STATEMENT OF PROCEDURAL HISTORY ................. 1
2. STATEMENT OF JURISDICTION ............................... 5
STATEMENT REGARDING ORAL ARGUMENT ................... 6
ISSUES PRESENTED ........................................................ 7
1. Whether the Trial Court Erred in Granting the Motion
for Summary Judgment of Texas College and Its
Underlying Objections to Evidence. .......................... 7
i
2. Whether the Trial Court Erred in Granting the Motion
for Summary Judgment of MPF and Its Underlying
Objections to Evidence. ........................................... 7
3. Whether the Trial Court Abused Its Discretion in
Refusing to Re-Open the Evidence. .......................... 7
STATEMENT OF FACTS ................................................... 8
1. SUMMARY................................................................ 8
2. LITIGATION FACTS. ................................................. 8
3. CASE FACTS .......................................................... 10
ii
SUMMARY OF THE ARGUMENT ..................................... 31
ARGUMENT ................................................................... 32
1. STANDARD OF REVIEW.......................................... 32
iii
2. THE TRIAL COURT ERRED IN GRANTING TEXAS
COLLEGE’S TRADITIONAL AND NO EVIDENCE
MOTION FOR SUMMARY JUDGMENT..................... 39
1. Duty and Breach of Duty ................................ 41
a) Ordinary Care ............................................. 44
b) Duty to provide assistance .......................... 44
c) No Duty to Warn ......................................... 45
d) Negligent Supervision, Negligent Training ... 47
e) No Duty to Provide Unnecessary Assistance 48
f) No evidence that the work is unusually
precarious .................................................. 49
g) No evidence that the job required specialized
training ...................................................... 50
h) No evidence that additional personnel were
necessary ................................................... 50
i) No obligation to dissuade ............................ 51
2. Proximate Cause............................................. 52
iv
a) Generally .................................................... 52
b) Medical Causation ...................................... 54
1. Bracken’s Deposition Excerpts ....................... 58
2. Owner’s Manual .............................................. 58
3. Rollins Affidavit ............................................. 59
4. Barnett Letter ................................................ 60
3. THE TRIAL COURT ERRED IN GRANTING MPF’S
MOTION FOR SUMMARY JUDGMENT..................... 64
1. Duty ............................................................... 65
2. Breach of duty ................................................ 67
3. Proximate Cause............................................. 68
1. Owner’s Manual .............................................. 69
2. Rollins Affidavit ............................................. 71
v
3. Thorpe Affidavit ............................................. 72
4. The ANSI Standard and "Statement of Best
Practices” ...................................................... 75
CONCLUSION AND PRAYER ........................................... 76
CERTIFICATE OF COMPLIANCE ..................................... 78
CERTIFICATE OF SERVICE............................................ 79
vi
INDEX OF AUTHORITIES
CASES
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015) ........ 46, 48
City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134
(Tex. App.—Dallas Sept. 18, 2007, no pet.) ................................ 55
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671
(Tex.1979) ................................................................................. 32
Cotton Patch Cafe v. McCarty, 2-05-082-CV, 2006 WL 563307 (Tex.
App.—Fort Worth Mar. 9, 2006, no pet.).................................... 55
Cunningham v. Columbia/St. David's Healthcare System, L.P.,
185S.W.3d 7 (Tex.App.-Austin 2005) ................................... 73, 74
Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) ........ 75
Dawson v. Briggs, 107 S.W.3d 739 (Tex. App.—Fort Worth 2003, no
pet.) .......................................................................................... 55
Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.]
1994, n.w.h.) ....................................................................... 37, 38
Figueroa v. Davis, 318 S.W.3d 53 (Tex. App.—Houston [1st Dist.]
2010, no pet.) ............................................................................ 55
vii
Goodwin v. Bluffton Coll., 2004-Ohio-2223 ................................... 65
Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725 (Tex. App.—
Houston [14th Dist.] 2004) ........................................................ 55
Gutierrez v. Gutierrez, 86 S.W.3d 729 (Tex.App. -El Paso 2002) .... 74
Halliburton Oil Well Cementing Co. v. Groves, 308 S.W.2d 919 (Tex.
Civ. App. 1957) ......................................................................... 54
Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152 (Tex. App. 2009) . 33
Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ
dism'd.) ..................................................................................... 64
Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172
(Tex. 2004) ................................................................................ 60
In re Hawk, 5 S.W.3d 874 (Tex.App.-Houston [14 Dist.] 1999) ...... 64
In re Prot. of H.W., 85 S.W.3d 348 (Tex. App. Tyler 2002) .............. 36
Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006.) ....................... 42
Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000) ............................. 41
Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL 4594098 (Tex.
App. July 30, 2015) ............................................................. 52, 53
Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d 757
(Tex. App. 1997) ........................................................................ 65
viii
Lifestyle Mobile Homes v. Ricks, 653 S.W.2d 602 (Tex. App.-
Beaumont 1983, writ ref'd n.r.e.)).............................................. 36
McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App.
1974), writ refused NRE (June 12, 1974) ................................... 49
McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954) abrogated
by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)) ... 51
McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299 (Tex.Civ.App.
-Dallas 1968) ............................................................................ 63
Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) ......... 55
Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985) .... 34
Rea v. Cofer, 879 S.W.2d 224 (Tex. App. 1994) ............................. 37
Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972) ............................... 32
Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San
Antonio 1995) ..................................................................... 67, 76
Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364
(Tex.App.-Dallas 1984, no writ) ................................................. 63
Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-00290-CV, 2013 WL
6797871 (Tex. App. Tyler, Dec. 20, 2013), review denied (Aug. 22,
2014) .................................................................................. 32, 35
ix
STATUTES
Tex. Gov't Code Ann. § 22.220 ........................................................ 5
Tex. Labor Code Ann. § 406.033 ................................................... 41
OTHER AUTHORITIES
ANSI’s STATEMENT OF BEST PRACTICES OF GENERAL TRAINING AND
FAMILIARIZATION FOR AERIAL WORK PLATFORM EQUIPMENT, February
2010 ......................................................................................... 75
RULES
Tex. R. Civ. P. 1 ............................................................................ 64
Tex. R. Civ. P. 193.6(b) ................................................................. 72
Tex. R. Civ. P. 270 ........................................................................ 62
Tex. R. Ev. 201 ............................................................................. 76
Tex. R. Ev. 803(4) ......................................................................... 59
Tex. R. Ev. 901 ............................................................................. 60
REGULATIONS
A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING
WORK PLATFORMS ............................................................ 66, 67, 75
x
CONSTITUTIONAL PROVISIONS
Tex. Const. art. V, § 6 ..................................................................... 5
xi
STATEMENT OF THE CASE
1. STATEMENT OF PROCEDURAL HISTORY
This is a non-subscriber suit for a work related injury.
Plaintiffs/Appellants, Gary Rollins and Carla Rollins filed suit on
December 20, 2013. (CCR 1: 1-5.)1 Appellants shall be referred to
as “Rollins” and “Mrs. Rollins” respectively, and “Mr. and Mrs.
Rollins,” “plaintiffs” or “appellants” collectively).
SUMMARY JUDGMENT
Defendant/Appellee, MPF Investments, LLC, d/b/a "A-1 Rent
All" (hereinafter “MPF”) filed a motion for summary judgment on
January 15, 2015. (CCR 2:104–248.) On the very same day defendant
Texas College (hereinafter “TC”) filed a motion for summary
1 The original clerk’s record (herein cited as “CR”) was missing bookmarks
and was not text searchable. It was also missing certain designated records. As
a result of requests for supplementation and a motion to correct the record, the
trial clerk filed a supplemental record (herein cited as “SR”) and a “corrected”
clerk’s record (herein cited as “CCR”). The “corrected” record was filed with
volumes 2 and 3 containing the same pages, volume 12 completely missing,
certain missing pages and several pages out of order. As a result, it is necessary
to refer to the original record (CR) at times. Since the page numbers in the CR
and the CCR are the same, the court can consult the CCR unless it finds a
necessary page missing, in which case it will have to consult the non-searchable
CR.
1
judgment. (CCR 4:249-5:497.) Mr. and Mrs. Rollins filed a response
to TC’s summary judgment motion on February 4, 2015 (CR 6:815-
22:3234) and a response to MPF’s summary judgment motion on
February 6, 2015. (CR 22:3241 -24:3474.)
TC filed a summary judgment reply on February 12, 2015 (CCR
21: 3512–3645) and MPF filed a summary judgment reply on
February 13, 2015 (CCR 22:3701–3736). MPF’s reply included a
series of objections and request to strike plaintiffs’ summary
judgment evidence.
MOTIONS TO STRIKE
During the pendency of the summary judgment motions, MFP
and TC filed a joint motion to strike Rollins’ designation of Burt
Thorpe, a safety expert, on January 23, 2015. (CCR 5:508 – 567.)
Appellants filed a response on February 3, 2015. (CCR 6:700 – 746.)
MFP filed a reply on February 9, 2015. (CCR 21: 3475-3484.) Rollins
filed a sur-reply (erroneously titled “reply”) on the same day (CCR
21:3485-3495.)
On January 26, 2015, MPF and TC also filed a joint motion
requesting that “the reports and any opinions” of Gilbert Martinez,
Joe G. Gonzales, and Thomas M. Roney - a neuropsychologist,
2
medical doctor, and economist, respectively. (CCR 6:568-699.)
Rollins filed a response on February 3, 2015. (CCR 6:747 -7:813.) A
joint reply was filed on February 6, 2015 (CCR 20:3235-3239.)
On February 13, 2014 TC filed objections and a motion to strike
evidence and references in Rollins’ responses to TC’s motion for
summary judgment. (CCR 22:3666 – 3700.) Rollins filed a response
on February 13, 2015. (CCR 22:3737 – 23:3922.)
THE FEBRUARY 19 ORDERS
On February 19, 2015, the trial court issued a series of orders
relating to the summary judgments and the evidence. The court
granted the joint motion to strike the designation of Rollins’ liability
expert, Burt Thorpe, (CCR 24:3923). The court also granted nearly
all of the requests to strike portions of Rollins’ affidavit.
(CCR 24:3925-3934.) The court also sustained the objections to
summary judgment evidence set forth in MPF’s summary judgment
reply. (CCR 24:3936-3937.) However, the court denied the joint
motion to strike the reports and opinions of Gilbert Martinez, Joe G.
Gonzales, and Thomas M. Roney. (CCR 24:3924.) Finally, the court
granted TC’s motion for summary judgment (CCR 24:3935), and
granted MPF’s motion for summary judgment (CCR 24:3938).
3
RECONSIDERATION
On February 24, 2015 Mr. and Mrs. Rollins filed an emergency
motion to reopen the evidence. (CCR 24:3939 – 4027.) On the same
day Mr. and Mrs. Rollins also filed a motion to reconsider regarding
TCs motion for summary judgment. (CCR 24:4028 – 4136) On
March 2, 2015 they also filed a motion to reconsider MPF’s motion
for summary judgment. (SR 10-23).
On March 9, 2015, TC filed a response to the emergency motion
to reopen the evidence. (CCR 25:4151-4163.) On March 11, 2015,
TC filed a response to the motion to reconsider. (CCR 25: 4164 –
4170.) On March 12, 2015, MPF filed its response to the emergency
motion to reopen the evidence. (CCR 25:4171 – 4176).
On March 17, 2015, the court below, denied Mr. & Mrs. Rollins’
motion for reconsideration of the TC summary judgment (SR 7), and
also denied their motion to reopen the evidence (SR 8).
On April 10, the Court below denied Rollins’ motion for
reconsideration of the MPF summary judgment. (CCR 25:4180.)
A notice of appeal was filed on May 8, 2015. (CCR 25:4181-
4183) The clerk’s record was filed (incorrectly) on June 9, 2015. A
supplemental record was filed on September 2, 2015. A “corrected”
4
record (with significant omissions) was filed on September 15, 2015.
Due to the fact that the trial court held no oral hearings before ruling
to strike the evidence and grant summary judgment, there is no
reporter’s record.
2. STATEMENT OF JURISDICTION
This Court has jurisdiction under Tex. Const. art. V, § 6
and Tex. Gov't Code Ann. § 22.220.
5
STATEMENT REGARDING ORAL ARGUMENT
No oral argument was had in the court below. Appellants
believe the lack of oral argument contributed to the erroneous rulings
of the lower court. The orders of dismissal contain no discussion of
the testimony as they relate to the elements of the claims. Also, the
court below has stricken factual statements made in the affidavit of
an unsophisticated lay witness, plaintiff/appellant, Garry Rollins.
They were stricken because the lower court believed they were either
inconsistent with his deposition testimony, or simply beyond his
competence.
Oral questioning of counsel will be the most effective way for
this Court to extract a detailed and accurate presentation of the
parties’ arguments on consistency (or inconsistency) of the evidence.
Oral argument will thus emphasize and clarify the written
arguments, significantly aiding the decisional process of this Court.
6
ISSUES PRESENTED
1. Whether the Trial Court Erred in Granting the Motion for
Summary Judgment of Texas College and Its Underlying
Objections to Evidence.
2. Whether the Trial Court Erred in Granting the Motion for
Summary Judgment of MPF and Its Underlying Objections
to Evidence.
3. Whether the Trial Court Abused Its Discretion in Refusing
to Re-Open the Evidence.
7
STATEMENT OF FACTS
1. SUMMARY
Gary Rollins was injured when he “blacked out” and fell during
an attempt to dismount from the platform of a “scissor lift.” Over his
own protest, he had been ordered to “get up there” and patch the
high ceiling of a gymnasium. Defying all common sense, his direct
supervisors ordered him “up there” knowing that he suffered from
a fear of heights and “syncope,” a condition which causes
frequent and unpredictable loss of consciousness. Moreover, he
had not received training or instruction on the use of the lift.
2. LITIGATION FACTS.
Despite its simplicity, the case below was hotly contested by
Texas College, a non-subscriber to the workers compensation
system, and TC’s co-defendant. From the beginning the case was
burdened with numerous aggressive filings -- special exceptions,
motions to compel, motions to strike evidence, and motions for
summary judgment. (CCR passim).
8
Eventually, the case reduced to two (2) summary judgment
motions and a number of supporting motions to strike evidence. On
February 19, 2015 the trial court simultaneously issued orders on
all of the pending motions.
The court sustained numerous objections to many parts of the
summary judgment evidence (CCR 24:3936-3937.), expert
designations (CCR 24:3923), and certain parts of Mr. Rollins’ affidavit
(CCR 24:3925-3934.) – which required redaction. However, as will
be shown below, the striking of the various parts of the evidence
was truly inconsequential. What survived, was ample summary
judgment evidence.
Preserving some significant evidence, the trial court denied
defendants’ request to strike expert reports of certain doctors (CCR
24:3924). These reports had been incorporated by reference into
appellants’ responses to requests for disclosures. The disclosure
responses were specifically used as summary judgment evidence.
(CCR 2:109) (See reference to Exhibit “H”).
Without oral hearing, the trial court granted the motions for
summary judgment.
9
An attempt was made here to draft this statement using only
information from materials on file and documents referenced by the
parties which were not stricken at the time of the February 19 orders.2
These facts do not contain materials submitted on reconsideration or
on the request to re-open the evidence. These facts were not stricken
and were specifically allowed by trial court when it granted the
summary judgments:
3. CASE FACTS
GARY ROLLINS, TEXAS COLLEGE, AND MPF
Gary Rollins worked “at Texas College as a maintenance Tech
and Supervisor for about six years.” (CCR 25:4131). He is 55 years
old. (CCR 3:234). He supervised a small group of three workers.
(CCR 4:322). He was an “excellent” supervisor, according to one co-
2 See Chance v. Elliot & Lillian, LLC, 462 S.W.3d 276, 282 (Tex. App. 2015)
(“we may consider all summary judgment evidence not otherwise excluded from
the trial court's consideration.”);; Schronk v. City of Burleson, 387 S.W.3d 692
(Tex. App. 2009) (“Objections to the form of summary-judgment evidence are
preserved for appellate review only if those objections are made and ruled on in
writing by the trial court”);;Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 497-
98 (Tex. App. 2002) (court will not imply exclusion of summary judgment
evidence, absent clear evidence in order). It is understood however, that this
Court is in control and may choose not to consider any matter it deems
appropriate. See, e.g. B.M.L. Through Jones v. Cooper, 919 S.W.2d 855, 858
(Tex. App. 1996)
10
worker. (CCR 4:430). Roland Brackens (“Brackens”) was his
immediate “supervisor” at the college. (CR 4:292). Brackens had
evaluated Rollins as “honest” “responsible,” and rated him “good” in
“willingness to do work.” (CCR 4:359).
Bracken’s direct supervisor was James Harris, Vice President of
Business and Finance. (CCR 7:930, 21:3513). Dwight Fennel was the
College President (CCR 7:931).
MPF Investments, LLC d/b/a A-1 Rent All (“MPF”), is the
company from whom Texas College rented one of the two scissor lifts
that were in the gym where Mr. Rollins was working on October 22,
2013. (CCR 2:104).
THE FIRST “BLACK OUT” INCIDENT
Rollins first experienced “syncope and associated symptoms”
during a September 2013 physical plant work assignment. (CCR
3:234). On September 8, 2013, Rollins “briefly passed out” after
coughing and sneezing while he was trying to lift a heavy slab of
marble. ROLLIN’S AFFIDAVIT (CCR 25:4132). The next day, September
9. 2013, he “went to the doctor.” Id “He was eventually told he had
an episode of ‘syncope.’” REPORT OF JOE G. GONZALEZ, MD (CCR 6:651).
11
ROLLINS IS DIAGNOSED WITH SYNCOPE
In his expert report to the trial court, Dr. Joe G. Gonzales,3
summarized his medical history of Rollins:
On September 9, 2013, Mr. Rollins was seen at the
Emergency Department of Baylor University Medical Center for
syncope. It was indicated Mr. Rollins had multiple episodes and
each spell was "ppt" by generalized paresthesia, and some
lightheadedness. It was also indicated Mr. Rollins had episodes
at work, while driving and had several spells that day. It was
also noted Mr. Rollins lost consciousness that day and Mr.
Rollins had a GCS score of 15.
On September 10, 2013, Mr. Rollins was discharged home
in stable condition and was provided a diagnosis of syncope.
It was indicated Mr. Rollins was provided discharge instructions
for syncope (fainting episode). It was noted Mr. Rollins was
provided a work release form which allowed Mr. Rollins to be
able to return to work in 2 days with no restrictions.
On October 14, 2013, Mr. Rollins was seen by William J.
Hwang, M.D. for blackout spell during exertion, pain in neck
and back, and numbness from the neck down. It was noted Mr.
Rollins was lifting a heavy object on September 4, 2013, sneezed
during the episode and developed weakness and numbness
from the neck down. It was indicated Mr. Rollins passed out
twice that day and had felt dizzy and lightheaded prior to
blackout spells. …. Dr. Hwang provided assessments of 1
episode of blackout spell, and noted differential diagnoses
included syncope versus seizures, stroke and TIA. …. Dr.
Hwang advised to follow up with primary care doctor for chest
3 Dr. Joe G. Gonzales is a Physical Medicine & Rehabilitation, Pain
Medicine, and Occupational & Environmental Medicine specialist who has
practiced Medicine in Texas since 1985. He is the President of the Texas Physical
Medicine & Rehabilitation Institute, and the Founder and Medical Director of
Physician Life Care Planning, LLC. Dr. Gonzales is a licensed physician in the
State of Texas.
12
pain and possible syncope episode such as a cardiogenic
syncope and instructed Mr. Rollins NOT TO DRIVE until free
from blackout spells for 6 months.
REPORT OF JOE G. GONZALES, MD (CCR 6:646-647) (emphasis added).
NOTICE OF SYNCOPE DIAGNOSIS AND REMOVAL FROM DRIVING DUTY
Importantly, Rollins informed both Harris and Brackens that he
“was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT
(CCR 25:4132). Brackens admitted to hearing about the problem:
“…I left out on the 9th of September and I think I returned on the
17th. I think that's when I -- the day I returned back from vacation.
There was a incident that I heard that he had had a light stroke or a
heart attack or something --…” (CCR 4:382). In addition, on at least
one prior occasion Rollins told Brackens that he was afraid of
heights. (CR 4:294)
In his affidavit, Rollins indicated that he “produced a Doctor
note to prove that [he] had been to the hospital. Mr. Harris and Mr.
Brackens then removed [him] from a driving duty [he] had been
performing for some time at Texas College where [he] would drive
students from Dallas to Tyler to attend classes.” (CCR 25:4132). In
his sworn interrogatory answers Rollins stated that he was “restricted
from driving” in September of 2013. (CCR 3:236).
13
Rollins had been asked to drive TC students on Tuesday and
Thursday mornings. (CCR. 4:306). Brackens testified that he
“knew” about the “park-and-rides” Rollins was “doing” on Tuesdays
and Thursdays. (CCR 4:362). Confirming Rollins’ version of events,
Brackens also testified that he suspected that Harris was responsible
for the suspension:
Q. Who is it -- who is it that likely took him off of the driving
detail?
A. Mr. Harris.
Q. And do you know why Mr. Harris took him off the driving
detail?
A. No, sir, I do not.
Q. Did it have anything to do with Garry having some
issues behind the wheel, passing out, that sort of thing?
A. That I do not know. I know that he had been in and out sick
all the time. That could have been the issue.
(CCR 7:883-883).
THE GROWING ANTAGONISM
During this time, Rollins began “to experience problems getting
along with Mr. Brackens.” (CCR 25:4132). “At times” he questioned
Bracken’s “leadership ability and competence.” Id. Brackens was
having Rollins “perform maintenance and repair jobs that were at
times degrading and a little frightening.” Id. Rollins began to
question the schools attitude toward their safety. (CCR 25:4133).
14
Although he was Rollins’ superior, Brackens admitted that he
resigned because he had “leadership problems” and that employees
were “not listening” to him. (CCR 4:343). A colloquy with counsel
shows that Brackens had an issue with people not taking his orders:
Q. Meaning that people were not respecting your leadership
and authority and your position?
A. Correct.
Q. And why do you think that there was a lack of respect for
your authority and leadership at Texas College?
A. Don't know. Don't know. That's -- the employees, that's the
problems that I had. You cannot make grown folks work,
and all I could do was ask them to do jobs and they it
wasn't getting done.
(CCR 4:344) (emphasis added).
THE WORK ON OCTOBER 21, 2013
On October 21, 2013 Roland Brackens told Rollins, that “Dr.
Fennel wanted the ceiling in the gym fixed....” and that a “scissor lift
would be out” and to “go in” the gym. (CCR 4:297). Mr. Rollins
described his response: “I expressed to him then I didn’t know how
to use it and I didn’t want to get up on it because I done got too old
and I’m afraid of the height.” (CCR. 4:297). Nevertheless Brackens
told Rollins to get with another employee “Michael Jones” who
15
Brackens claimed knew “how to use it.” (CCR 4:297). Rollins
complied. Id.
After some difficulty with the lift, as Mr. Rollins described: “We
finally got it crunk up, and we went up and patched the roof, the
ceiling. I stayed up there about five minutes on the 21st showing
him what needed to be done, and him and a community service
finished off.” (CCR 4:297) (emphasis added). Although, Rollins had
no “trouble getting off the lift” (CCR 4:299), he was “nervous the
entire time” he was “up there.” (CCR 25:4133). They did not finish
the work that day. (CCR 25:4133).
Bracken’s judgment was not good. Earlier that day he had
instructed the men to put a ladder on top of the scissor lift
platform to reach even higher. (CR. 4:303-304). He admitted to it.
(CCR 4:342). His order was universally rejected by his subordinates
and his superiors. (CCR 4:304). The deposition testimony describes
this crazy suggestion, as well as Rollins’ response in rejecting the
idea:
Q. What other conversation took place?
A. I discussed with Mr. Harris Roland told them guys to set a
ladder up on top of the lift and get up there because it
wouldn't reach a certain height that they had to get to and
he told them to set a ladder up on top of the lift and I told
16
them not to set no ladder up on there because they be
done fell out and kill theirself. And I told Ms. Bowie and
Mr. Harris that. Well, Mr. Harris started laughing about it
and said that that was stupid of Roland to even suggest that
being in the position that he's in.
Q. And you were standing there when Mr. Brackens told this
to Stevie?
A. No. They came and told me, and I confronted Mr. Bracket
about it.
Q. Stevie was one of them, was the other one --
A. Mike and Alex.
Q. All three.
A. Yes.
Q. And they told you and then you went --
A. And then I went and talked to Roland about it first,
asked him why would he tell them to set a ladder up on
that lift.
Q. And what did he say?
A. He said that Dr. Fennell want this done, he want it done by
Friday, so whatever it takes to get it done, that's what we
need to do.
(CCR 24:4041-4042) (emphasis added).
THE CONFRONTATION ON THE AFTERNOON OF OCTOBER 21ST
Rollins’ refusal to obey Mr. Brackens had consequences. Later
that evening Rollins “was called to the office by Mr. Harris and Ms.
Bowie....” (CCR 4:297-298). As Mr. Rollins put it: “…Mr. Bracket
had told them that I said I wasn’t going to get up there and do it….”
(CCR. 4:298). Harris told Rollins that Brackens had “complained”
17
that Rollins was an “ongoing discipline problem” and that Rollins
“didn’t want to do as told.” (CCR 25:4133). “Mr. Harris informed
[Rollins] that in order to keep [his] job [he] needed to get the
ceiling fixed as directed.” Id. (emphasis added).
In his deposition, Rollins described the pressure to be on the lift
due to the presence of a camera in the gym:
Q. Now, I do want to ask you about this conversation. Tell me,
just describe in your own words as best you can what you
said to them and what they said to you.
A. Well, when I walked in the office, I asked Mr. Harris what
was going on, and I saw Ms. Bowie. And normally if
something is going on that Mr. Harris want me to take care
of, he usually calls me up there and I do the job. When I
saw Ms. Bowie, I asked them what was going on.
They said, "Mr. Bracket said that you won't do nothing
he said."
And I told them he was a liar. I say, "I done been in the
gym this morning and started Mike and them in there
patching the roof." We got cameras in there in the gym,
and I was seen on the cameras up there on the lift.
Q. How do you know that? Was that part of this conversation?
A. Was it part of who conversation?
Q. The conversation with Mr. Harris and Ms. Bowie?
A. Yes. I told them I was seen by Dr. Fennell and Ms. Marshall.
Q. On the camera.
A. Yes.
Q. How do you find out about that?
A. Ms. Marshall told me.
Q. When did she tell you that?
18
A. That evening on the way home. She said, "I was sitting up
here wondering why did you get up on the lift feeling
the way you feel."
AND I TOLD HER I DIDN'T HAVE NO CHOICE and I got to
finish it up tomorrow.
Q. But you were discussing that with Mr. Harris and Ms.
Bowie?
A. Yes.
Q. But you weren't aware that you were seen on the camera
until after you left the campus to go home.
A. No, no, no. When we got in the car, Ms. Marshall
automatically started talking with me about why would you
get up on that lift.
…
Q. So, tell me -- all right. So, tell me about this discussion
then about being on the camera with – I mean, the
discussion you had with Ms. Bowie and Mr. Harris about
being on the camera.
A. It wasn't a long discussion, it was just when I was called in
the office that evening, I was already in Ms. Marshall's office
sitting in her office. And she sit up there and ask me,
"Why would you get up on the lift like that and you
know how you're feeling?"
So, I told her at that time, "Well, Roland told me that I
had to GET UP THERE and get it done." And then in the
next two or three minutes, Mr. Harris called my phone and
had me come around to his office, we're in the same
building. I went around to his office, and he immediately
told me that Mr. Bracket said that I wouldn't do nothing he
told me to do and I was supposed to been in there fixing
that gym and I wasn't even doing that.
And I told him that Mr. Bracket is telling a lie, I say Ms.
Marshall and Dr. Fennell saw me on there.
Q. So, Ms. Marshall told you that she and Dr. Fennell saw
you.
19
A. Yes.
(CCR 4:300 - 303) (emphasis added). Rollins continued to describe
the specific directive he received that afternoon from Mr. Harris:
Q. Did you have any further conversation with Ms. Bowie and
Mr. Harris?
A. No. As far as on that evening, Mr. Harris just told me that
first thing in the morning go in there and get that done, he
say, because Dr. Fennell been telling Roland that he wanted
to get it done and Roland come up here and say you say you
ain't going to do it, but we need to get that done before
Friday. I told Mr. Harris, "Mr. Harris, I'm going to tell you
like I told Roland, I'm afraid of the height, but I'm going to
get in there and I'm going to get it done." And at that time, I
was also angry. But when Tuesday came, I went in there
and I got it done.
(CCR 4:304-305).
Interestingly, Mr. Brackens testied repeatedly that Rollins was
not at work on the 21st. (CCR 20:3289). But Michael Johnson, a co-
worker indicated that Rollins was there and had instructed him to
disregard the crazy ladder instruction made by Brackens earlier on
that day. (CCR 20:3269).
THE WORK ON OCTOBER 22ND
Rollins testified that he showed up for work at about 7:15 am
on the morning of the 22nd and after a short “McDonalds” breakfast
the crew got to work. (CCR 4:307). He continued:
20
And by that time, the guys would be through picking up
trash out through the campus, and we all get started to
work. So, on that Tuesday, I knew I didn't have a choice,
I feel like my job was in jeopardy and I was still mad and
angry. But I went in the gym, me, Steve Alex, Mike hadn't
showed up yet, and we try to get the lift started. We couldn't
get it started; so, it was another lift on the other end, we
went down there and we managed to get that one crunk up.
And I went up there and start patching the holes. Maybe
five minutes Mike came in, and he told me that he would go
ahead and finish it. And I told him, nah, I said, no, Roland
done called me in the -- I mean, Mr. Harris done called me
in the office yesterday evening because of Roland telling
him that I wouldn't do it. He said, "Well, Roland is just
lying, we was in here." I said, "Well, I know it" I said, "but
I'm not worried about that," I say, "I just need to get this
done because I don't need them saying nothing else to me
about this gym."
Id. In another exchange, Rollins testified about the situation with
more detail:
Q. And how long were you up on the lift up there by yourself
before Mike came in?
A. Maybe 5 or 8 minutes. When he came in, I let it down and
he got on. And he told me that, "Well, you go ahead and
get off, man, because you look like you're scared." I
said, "Well, I don't want to be up here anyway, but your
uncle went and lied yesterday; so, I got to get this
done."
Q. So, he and Mike initiated the comment that you go ahead
and get down because you look like you're scared.
A. Yes.
Q. And then you told him no because your uncle --
A. I had to get it done.
Q. Because your uncle lied yesterday.
21
A. Yes. I was directed by Mr. Harris to get it done Tuesday.
Q. That wasn't T-uesday, was it?
A. That was on a Monday when Mr. Harris direct me
Tuesday morning GET UP THERE and get it done.
(CCR 309)(emphasis added).
Rollins was “afraid” of working on the scissor lift at that time
“because [he] didn’t know how to operate it, hadn’t been trained, and
was fearful because of [his] injury and blackouts.” (CCR 25:4134).
Harris testified that Rollins was duty bound to get on the lift if
Mr. Brackens told him to – even if Brackens knew about the syncope!
Q. So, you're now going to testify -- or are you testifying now
that if a manager knows that an employee is suffering
from seizures, the employee should get on the scissor
lift if the manager says get up there and do it, is that
what you're telling me?
A. Yes.
(CCR 868). This is the type of evidence which supports a finding of
gross negligence. Brackens has completely denied the events and
stated that he told Mr. Rollins not to “be in the Gym” on Oct. 22d.
(CCR 4:354).
Rollins “would not have gotten on the lift if [he] had not been
specifically instructed to do so by Mr. Brackens and later by Mr.
Harris.” (CCR 25:4134). “The only reason [he] got on the lift is
22
because [he] was told to do so and was made to feel as though
[his] job depended on it.” (CCR 25:4134-4135) (emphasis added).
Rollins “didn't want to do it.” (CCR 25:4135).
If Mr. Brackens had looked at the owner's manual and
informed [Rollins] that a person with blackouts shouldn't be on
a lift, [Rollins] would not have gotten on. Mr. Brackens however
did not do this. He did not look at a safety manual, and if he
did, he certainly did not inform or warn [Rollins] that a person
in [Rollins’] condition shouldn't be on a scissor lift.
Id.
THE FINAL “BLACK OUT” AND THE “FALL”
Once Mike “brought the lift down” Rollins “went to exit and fell
from the top of the platform flat on [his] back onto the gym floor.”
(CCR 25:4134). “The top of the lift platform is still a good three feet
off the ground when its all the way down and [he] fell straight back
with nothing breaking his fall.” Id. Rollins does not “remember
taking the first step down.” Id.
Insinuating that Rollins’ prior ordeal (of multiple hospital visits,
medical tests, and ultimate syncope diagnosis) was the first part of
some elaborate fraud, Michael Johnson who is apparently Bracken’s
nephew (CCR 4:309) and was still on the payroll (CCR 4:400) testified
that Rollins looked like he just “let go.” (CCR 4:410). Johnson also
claimed Rollins offered to “take care of” him “when this is over.” (CCR
23
4:413). In a move completely inconsistent with fraud, after the fall,
Rollins said something like “Yea, I’m fine or okay.” (CCR 4:458.) He
told Stevie Barron “that he was just embarrassed.” Id. Rollins was,
in fact, embarrassed and thought he was alright. (CCR 25:4134). He
“tried to get up fast because [he] was more embarrassed knowing that
Dr. Fennell was looking at the cameras.” (CCR 21:3620). “Of course,
[he] later ended up having to have major surgery.” Id.
Regardless, the “stress of the work at that height had [him]
disoriented and dizzy. Id. He was already “nervous being that high
in the air.” Id. All Rollins remembered was “turning around on the
platform, gripping the handrails, and then being on [his] back.” Id.
Q. So, you had a right hand on one handrail and a left hand
on the other.
A. Yes.
Q. While you were still standing on the platform, the floor.
A. Right.
Q. And then you proceeded to step down --
A. Yes.
Q. -- the first step? With your right foot or left foot?
A. I don't know was it my right or left, I can't recall.
Q. Were you able to step down on that step?
A. I stepped down, and when I stepped, I fell.
Q. How did you fall?
24
A. I just fell flat on my back, I don't know what happened, I
just fell.
(CCR. 21:3619-3620).
THE ATTEMPT TO MANUFACTURE EVIDENCE OF “CONSCIOUSNESS”
In deposition, Texas College’s counsel repeatedly asked Rollins
questions which could be misconstrued. When Rollins said he
remembered “falling,” counsel attempted to make it seem as though
the witness was saying that he was conscious, but Rollins had to
correct the effort of misdirection:
Q. Don't remember if you slipped.
A. No.
Q. Don't remember if you stumbled?
A. No.
Q. But you do remember falling down on the floor.
A. Yes.
Q. So, you were conscious the whole time.
A. I don't know if I was conscious or not. When I hit the
floor -- right at this time, I don't know what happened.
Q. But do you -- you recall falling down, right?
A. Yes.
Q. You don't recall -- I mean, you recall holding on and then
you fell down.
A. And that's all I remember.
(CCR 4:313-314).
25
The testimony above makes it clear that Mr. Rollins lost
consciousness or most likely lost consciousness. Despite counsels’
continued attempt to get Mr. Rollins to admit to consciousness
during the fall, the witness simply stated: that he remembered falling
(as in being standing, then being on the ground) – not that he
remembered the entire sequence of the fall.
This testimony was not clearly presented to the trial court, but
instead paraphrased: “Rollins has no explanation as to how he fell;;
just that he fell.” See TC’S MOTION FOR SUMMARY JUDGMENT, p. 2. (CCR
4:250).
Ironically, when cross examined by counsel for MPF, the
syncope explanation becomes more likely:
Q. All right, Mr. Rollins. You testified that before the October
22nd incident you had an issue where you were driving
home and you started to black out; is that correct?
A. Yes.
Q. Okay. Is it a possibility that the day that you fell off the lift
that you blacked out and fell on it?
A. I really don’t know how to answer that because I really don’t
know what happened that day.
Q. (BY MR. GEDDIE) Okay. So you agree with me that that’s a
possibility that you blacked out that day.
A. Again, my response is I don’t know exactly what happened.
Q. Can you think of any reason why it could not be an
explanation for your fall that you blacked out?
26
A. No.
(CCR 2:155-156) (emphasis added). Rollins explanation might be
simple, but it makes sense: “I shouldn't have been on it.” (CCR
4:317).
THE CONDITION OF THE LIFT AND TRAINING
The lift had been rented by Texas College from MPF. (CCR
5:469). According to Brackens, who signed off on the lift, there was
no owner’s manual on board the lift. (CCR 2:162). Mr. Bracken’s
testified that although he was given instruction on “how to operate”
the lift, he did not pass that training onto his subordinates:
Q. But you didn’t’ turn around and show or train your
subordinates how to operate it?
A. My subordinates had already been trained, because that is
not the first time that we had a scissor lift on the premises
and was used.
Q. And is proof of training kept in their personnel files?
A. No.
Q. Why?
A. That I can’t answer.
(CCR 2:162). Rollins swore that MFP (A-1) “did not offer us
training” or “familiarize us with the lift.” (CCR 25:4133)
(emphasis added). Mr. Harris, agreed that “untrained employees
shouldn’t be on scissor lifts.” (CCR 7:863).
27
Rollins “hadn’t been trained” and “didn’t know how to operate
it.) (CCR 25:4134). Rollins was “present outside the gym when A·1
Rent All delivered the scissor lift to Texas College.” (CCR 25:4143).
He “asked the delivery person if A·1 would bring the lift inside the
gym and who was going to show [them] how to use it.” Id. “The A·1
person informed [Rollins] that he couldn't bring the lift indoors and
that the folks at Texas College knew how to use the lift.” Id. Rollins
stated that “A-1 did not offer us training nor did it familiarize us with
the lift. The person from A·1 just came and delivered the machine
and left.” Id.
When asked about what training could have made a difference,
Mr. Rollins testified as follows:
Q. Here's my question, and I'm trying to make sure that I'm
clear about it: What training could you have been given, if
any, if you know, that would have enabled you to get on the
lift or get off of it onto the floor any better than you did?
A. Any proper training that someone that already knew how to
use the lift or someone that already was licensed to use the
lift.
Q. (BY MR. YARBROUGH) Is that your answer?
A. Yes.
Q. And how would that specifically have helped you do
anything different?
A. Then I would have been trained to know how to use it and
to get on and off the proper way, operate it the proper way.
28
But it still -- I was still afraid to get on it, period; so, I
shouldn't have been on it.
(CCR 4:316-317) (emphasis added).
THE INJURY
Mr. Rollins testified that as soon as he fell, he was “hurting” in
the “back of my neck.” (CCR 4:314). He had no prior complaints
about neck pain:
Q. Yeah. What I'm asking is after you recovered from the first
surgery to your neck, two months after that before the
incident at Texas College on October 22, 2013, had you
complained of pain in your neck"?
A. No, I had not complained about pain in my neck.
(CCR 4:318).
In his report to the trial court, Dr. Gilbert Martinez, noted the
link between the fall and Rollins’ neck injury:
Correspondence on July 18, 2014, by Dr. Barnett includes
the opinion that there was reasonable medical probability
that Mr. Rollins suffered an acute herniated disc at C4-C5
and spinal cord contusion caused by the fall on October 22,
2013, and that he would have chronic pain in his neck and
spinal cord dysfunction as a result of the injury.
REPORT OF GILBERT MARTINEZ PHD (CCR 6:611). The photos are telling:
29
REPORT OF JOE G. GONZALES, MD (CCR 6:674). Dr. Martinez’ Report
continues:
3. Mr. Rollins will benefit from a comprehensive pain
management program with a focus on interventions designed to
reduce the effects of acute and chronic and pain. This should
include evaluation by a medical pain specialist who can
evaluate Mr. Rollins' potential for benefiting from medical
procedures designed to alleviating chronic pain, as well as
participation in various therapies designed to improve physical
and behavioral adjustment of individuals with chronic pain.
Such programs typically include a brief inpatient
hospitalization for initial evaluation, medication management,
and intensive therapy, followed by a more extended course of
outpatient therapy.
4. In addition to the effects of his physical problems, Mr. Rollins'
chronic reactive depression will contribute to his functional
disability and will have a negative impact on his long-term
vocational adjustment. Life care planning should account for
Mr. Rollins' significantly diminished occupational potential.
30
REPORT OF GILBERT MARTINEZ, PHD (CCR 6:620). The prognosis if poor
for Gary Rollins:
Based on the known medical conditions, Mr. Gary L.
Rollins will have lifelong, progressive symptoms, physical
impairment and subsequent disability which will require long-
term medical care.
REPORT OF JOE G GONZALES, MD (CCR 6:628).
SUMMARY OF THE ARGUMENT
When one seeks to win by excluding key evidence on the basis
of strategic, technical grounds, one must live and die by the technical
and strategic failures of one’s own motions. Rather than argue the
merits of this case, Texas College and MPF launched a technical war
and jointly attempted to eliminate all relevant testimony, affidavits,
expert reports, operating manuals, and relevant medical records from
the record. Instead, they failed to convince the court to strike key
parts of Rollins’ Affidavit, they lost a key battle over Doctor Reports
which they introduced and referenced without objection, and they
actually introduced the majority of the testimony which proves their
own liability.
31
Moreover, many of the evidentiary objections were simply
without merit. If revisited by this Court, even more summary
judgment evidence supporting appellants’ claims will surface.
Finally, even on the remote chance more evidence is needed,
this Court should reverse the trial courts denial of the motion to re-
open the evidence.
ARGUMENT
1. STANDARD OF REVIEW
The function of summary judgment is to eliminate patently
unmeritorious claims and defenses, not to deprive litigants of the
right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 n. 5 (Tex.1979); Swilley v. Hughes, 488 S.W.2d 64,
68 (Tex.1972).
Recently in Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-
00290-CV, 2013 WL 6797871, at *7-8 (Tex. App. Tyler, Dec. 20,
2013), review denied (Aug. 22, 2014) this Honorable Court
summarized the standard of review for a case similar to this, which
involved both traditional and no-evidence summary judgments.
TRADITIONAL MOTION STANDARD
32
In Wylie, this Court cited the authority and set forth the
standard:
The movant for traditional summary judgment has the
burden of showing that there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law. Tex.R.
Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. When the movant
seeks summary judgment on a claim in which the nonmovant
bears the burden of proof, the movant must either negate at
least one essential element of the nonmovant's cause of
action or prove all essential elements of an affirmative defense.
See Randall's Food Mkt., Inc. v. Johnson, 891 S.W.2d 640, 644
(Tex.1995). When the movant seeks summary judgment on a
claim in which the movant bears the burden of proof, the
movant must prove all essential elements of the claim. Winchek
v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 201
(Tex.App.-Houston [1st Dist.] 2007, no pet.). Once the movant
has established a right to summary judgment, the burden
shifts to the nonmovant to respond to the motion and
present to the trial court any issues that would preclude
summary judgment. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678–79 (Tex.1979).
Id. at *7 (emphasis added). “In determining whether there is a
genuine fact issue precluding summary judgment, evidence
favorable to the non-movant is taken as true and we make all
reasonable inferences in his favor.” Hernandez v. Brinker Int'l, Inc.,
285 S.W.3d 152, 163 (Tex. App. 2009) (emphasis added). Elements
of the action must be “conclusively” negated in order for the
defendants to prevail. Id. (emphasis added). Any doubts are to be
33
resolved in the non-movant’s favor. Nixon v. Mr. Property
Management, 690 S.W.2d 546, 548–49 (Tex.1985).
As will be shown here, even if one removes from consideration
all of the stricken evidence, there is still a genuine issue of material
fact as to Duty, Breach of Duty and Causation against each
defendant.
NO EVIDENCE MOTION STANDARD
In Wylie, this Court’s explanation of the no-evidence standard
was equally complete:
Once a no evidence motion has been filed in accordance
with Rule 166a(i), the burden shifts to the nonmovant to bring
forth evidence that raises a fact issue on the challenged
evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600
(Tex.2004). We review a no evidence motion for summary
judgment under the same legal sufficiency standards as a
directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 750–51 (Tex.2003). A no evidence motion is properly
granted if the nonmovant fails to bring forth more than a
scintilla of probative evidence to raise a genuine issue of
material fact as to an essential element of the nonmovant's
claim on which the nonmovant would have the burden of proof
at trial. Id. at 751. If the evidence supporting a finding rises to
a level that would enable reasonable, fair minded persons to
differ in their conclusions, then more than a scintilla of
evidence exists. Id. 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, and the legal effect is that there
is no evidence. Id.
34
Id. These facts do “more than create a mere surmise of suspicion” of
a negligence claim.
ORDER OF CONSIDERATION
This Court continued in Wylie to explain the proper order of
consideration of the issues:
In both traditional and no evidence summary judgment
motions, we review the entire record de novo and in the light
most favorable to the nonmovant, INDULGING EVERY
REASONABLE INFERENCE AND RESOLVING ANY DOUBTS
AGAINST THE MOTION. See Sudan v. Sudan, 199 S.W.3d 291,
292 (Tex.2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.
Corp., 988 S.W.2d 746, 748 (Tex.1999). All theories in support
of or in opposition to a motion for summary judgment must be
presented in writing to the trial court. See Tex.R. Civ. P. 166a(c).
If the trial court's order does not specify the grounds on which
it granted summary judgment, we affirm the trial court's ruling
if any of the theories advanced in the motion is meritorious.
State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380
(Tex.1993).
Moreover, when a party moves for both a traditional and a
no evidence summary judgment, generally, we first review the
trial court's summary judgment under the no evidence
standards of Rule 166a(i). Ridgway, 135 S.W.3d at 600. If the
no evidence summary judgment was properly granted, we do
not reach arguments made under the traditional motion for
summary judgment. See id. at 602.
Id. at *8 (emphasis added). Here, appellant will show that under the
current law there is substantial evidence of the elements of the
claims. In doing so, the showing will also defeat any summary
judgment on traditional grounds.
35
MOTION TO RE-OPEN EVIDENCE
A motion to re-open the evidence is reviewed under an abuse of
discretion standard. In re Prot. of H.W., 85 S.W.3d 348, 358 (Tex.
App. Tyler 2002). In the case of In re Prot. of H.W., this Court
indicated a primary consideration when it stated: “…the trial judge
should liberally exercise his discretion to permit both sides to
fully develop their case. Id. (citing Lifestyle Mobile Homes v. Ricks,
653 S.W.2d 602, 604 (Tex. App.-Beaumont 1983, writ ref'd n.r.e.))
(emphasis added).
As will be shown, the trial court here did the opposite. It struck
evidence on dubious technical grounds and refused to allow
correction of the “alleged” defects. This precluded the parties from
fully developing the case.
SCOPE OF EVIDENCE
On February 19, 2015 the trial court issued 6 orders on six
intertwined matters: Texas College’s two motions for summary
judgment, appellees joint motion to strike the designations and
reports of Dr. Martinez (psychologist), Dr. Gonzales (medical doctor)
and Thomas Roney (economist);; MPF’s motion to strike the
designation and testimony of Burt Thorpe (aerial lift equipment
36
expert);; Texas College’s motion to strike evidence;; and MPF’s
objections to evidence.
When a trial court sets a single hearing for multiple intertwined
motions, the court is free to consider the evidence together. It may
consider evidence advanced by one party in one motion, to support a
motion or response by another party. In Rea v. Cofer, 879 S.W.2d
224 (Tex. App. 1994) the appellant had asserted the discovery rule.
Appellees’ motion for summary judgment, failed to even address the
issue. Nevertheless the Court of Appeals determined that the
omission was not fatal, “because the proof necessary to negate the
discovery rule was contained in [another party’s] motion for summary
judgment on file with the court.” Id. at 228. The Rea court cited
Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.]
1994, n.w.h.) in which the court held that when a trial court sets a
single hearing for multiple motions for summary judgment, the court
may look to other proof on file with the court to determine any of the
motions. In a particularly instructive passage, the Desiga court
stated:
However, in view of the unique circumstances of this case,
we find this omission to be not fatal as to Dr. Guerrero's
summary judgment for the following reasons. Only one hearing
37
was set for the judge to rule on all of the motions. All of the
motions were heard at the same time, January 22, 1993 at 9
a.m. At the same hearing, the trial court heard all of the
arguments in support of the various motions. The trial court
granted summary judgment for all appellees the same day. In
the unique facts and circumstances of this case, to find
otherwise would place the trial court in a position of having
to engage in the ARTIFICE OF IGNORING Mr. Desiga's
deposition testimony which was otherwise on file with the
court in the form of the other appellees' motions for summary
judgment.
Id. at 253 (emphasis added). The Desiga court noted the Texas
Supreme Court’s increasing leniency with regard to summary
judgment evidence:
We find support for this holding in the Texas Supreme
Court’s recent demonstrations of increasing leniency in the
areas of both summary judgment proceedings in general and
summary judgment evidence specifically. See McConathy v.
McConathy, 869 S.W.2d 341, 341 (Tex.1994) (holding
deposition excerpts used as summary judgment evidence need
not be authenticated to be considered competent summary
judgment proof); Mafrige v. Ross, 866 S.W.2d 590, 590
(Tex.1993) (holding parties may make otherwise unappealable
order final simply by adding “Mother Hubbard” language in the
order). Such a holding with regard to Dr. Guerrero is in effect
acknowledging the trial court's capacity to take judicial
notice of those documents on file with it at the time of a
hearing on a motion for summary judgment. The other parties'
motions for summary judgment having been duly filed with the
trial court for its consideration constituted part of the record
before it.
Id.
38
In addition, both orders of summary judgment contained
language expanding the scope of evidence far beyond the confines of
rule 166a to “any additional briefing accepted by the court.”
(CCR 24:3935 and 24:3938). Thus, this Court need not engage in
the “artifice of ignoring” the evidence that was before the trial court
at the time of the February 19th rulings. It may consider all of the
evidence presented by all the parties together, when deciding the fate
of any particular motion.
2. THE TRIAL COURT ERRED IN GRANTING TEXAS
COLLEGE’S TRADITIONAL AND NO EVIDENCE MOTION
FOR SUMMARY JUDGMENT
Because the trial court did not hold oral argument and because
its orders are silent as to any reasoning, this brief will examine the
rationale behind appellees’ motions.
NATURE OF CLAIMS INVOLVED
Texas College’s motion is chock full of inapplicable premises
liability cases, as well as cases in which there was no evidence of
unusual danger. Here, there is a singular sterling difference
between the facts of this case and the facts of any case cited in
support of Texas College’s motion. It is the truly insane and
spiteful order for Rollins to “get up there” and finish the work.
39
The order was given despite both Brackens and Harris knowing that
Rollins was “unfit” for the job due to his “black-out” spells. Appellee’s
motions would have this court adopt the standard of liability provided
by Harris in his deposition:
Q. So, you're now going to testify -- or are you testifying now
that if a manager knows that an employee is suffering
from seizures, the employee should get on the scissor
lift if the manager says get up there and do it, is that
what you're telling me?
B. Yes.
(CCR 7:868). This is not the law. It should not be the law. None of
the cases cited in the motions involve the commanding of an
employee to do a knowingly unsafe act – an act which is not unsafe
because of a premises condition – but is unsafe because the plaintiff
was physically “unfit” for the job – he had fainting spells.
This is not a premises liability case. The only place in
appellants’ pleadings which the word “premises” appears is the
prayer: “WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray….”
(CCR 498-505, 8th Amended) (CCR 92-101, 7th Amended) (CCR 83-
91, 6th Amended). This case involves active and grossly negligent
supervision. As to Texas College, Rollins plead:
Defendant's failure to: 1) provide a reasonably safe
workplace; 2) furnish reasonably safe machinery or reasonably
40
safe personal protective equipment for use with the Lift and for
use in lifting the marble slab counter top; 3) provide adequate
help in the performance of work; 4) train and/or properly
supervise Plaintiff Garry Rollins while using the Lift and lifting
the marble slab counter top; and 5) to ensure that Plaintiff
Garry Rollins was fit to perform work on a scissor lift.
7TH AMENDED PETITION (CCR 1:96) (emphasis added).
THE ELEMENTS AND THE EVIDENCE
1. Duty and Breach of Duty
Tex. Labor Code Ann. § 406.033 eliminates significant defenses
in nonsubscriber cases such as this. The provision reads in pertinent
part:
“… it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death;
or
(3) the injury or death was caused by the negligence of a
fellow employee.
Id. (emphasis added). The Texas Supreme Court also reaffirmed that
comparative negligence may not be submitted in a nonsubscriber
case. See Kroger Co. v. Keng, 23 S.W.3d 347, 352-53 (Tex. 2000) (“We
therefore hold that a nonsubscribing employer is not entitled to a jury
question on its employee's alleged comparative responsibility.)
Texas College’s motion focused primarily on the lack of duty to
warn of dangers which an employee already appreciates. This theory
41
might have been applicable had Rollins plead “failure to warn.” He
did not.
Texas College made extensive use of Kroger Co. v. Elwood, 197
S.W.3d 793, 794 (Tex. 2006.) See TEXAS COLLEGE MOTION FOR SUMMARY
JUDGMENT (CCR 4:249-271). Elwood was a near frivolous case, with
little in common to the instant case:
Billy Elwood, a courtesy clerk at a Kroger grocery store,
was injured when a customer shut her vehicle door on his
hand while he was transferring items from a grocery cart to the
vehicle. Elwood had placed one hand in the vehicle's
doorjamb, and one foot on the cart, to keep the cart from
rolling down a slope in Kroger's parking lot.
Elwood, 197 S.W.3d at 794 (emphasis added). But even in Elwood
the Court acknowledge the concept of “duty.” Albeit lengthy, the
following passage from Elwood and its highlighted language shows
why its holding and the holdings of similar cases do not apply here:
An employer has a DUTY TO USE ORDINARY CARE in
providing a safe workplace. Farley v. M M Cattle Co., 529
S.W.2d 751, 754 (Tex.1975). IT MUST, for example, warn an
employee of the hazards of employment and PROVIDE NEEDED
safety equipment or ASSISTANCE. Id. However, an employer
is not an insurer of its employees' safety. Leitch v. Hornsby, 935
S.W.2d 114, 117 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d
19, 21 (Tex.1993). It owes NO DUTY to WARN of hazards that
are commonly known or already appreciated by the
employee. See Nat'l Convenience *795 Stores, Inc. v. Matherne,
987 S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no
pet.). It has NO DUTY to provide equipment or ASSISTANCE
42
THAT IS UNNECESSARY to the job's safe performance. See
Allsup's Convenience Stores, Inc. v. Warren, 934 S.W.2d 433,
438 (Tex.App.—Amarillo 1996, writ denied). And, when an
employee's injury results from performing the same character
of work that employees in that position have always done, an
employer is not liable if there is NO EVIDENCE THAT THE
WORK IS UNUSUALLY PRECARIOUS. Werner, 909 S.W.2d at
869 (citing Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 175
S.W.2d 249, 251 (1943)).
In this case, there is no evidence that loading groceries on
the sloped portion of Kroger's parking lot is an unusually
dangerous job, nor is there evidence that other courtesy clerks
sustained similar injuries while loading groceries on the sloped
lot. Indeed, loading purchases into vehicles is a task
performed regularly—without any special training or
assistance—by customers throughout the grocery and retail
industry. While there is evidence that grocery carts had rolled
into vehicles due to the parking lot's slope and may have posed
a foreseeable risk of damage to customers' vehicles, this is no
evidence that the slope posed a foreseeable risk of injury to
Kroger's employees. Elwood presented NO EVIDENCE that his
JOB REQUIRED SPECIALIZED TRAINING. See Nat'l
Convenience Stores, 987 S.W.2d at 149. Elwood testified that,
prior to working at Kroger, he knew it was dangerous to place
his hand in a vehicle's doorjamb. Moreover, there is NO
EVIDENCE that carts with wheel locks or ADDITIONAL
PERSONNEL WERE NECESSARY to safely load groceries. See
Allsup's Convenience Stores, 934 S.W.2d at 438.
Kroger had no duty to warn Elwood of a danger known to
all and NO OBLIGATION TO provide training or equipment to
DISSUADE an employee from using a vehicle doorjamb for
leverage. Employers are not insurers of their employees. See
Leitch, 935 S.W.2d at 117; Exxon Corp., 867 S.W.2d at 21.
Accordingly, without hearing oral argument, we reverse the
court of appeals' judgment and render judgment for Kroger. See
TEX. R. APP. P. 59.1, 60.2(c).
43
Id. at 794-95 (Tex. 2006) (emphasis added). The highlighted matters
are discussed below:
a) Ordinary Care
First and foremost: Is there really any doubt that a
supervisor who knows his employee is having “black outs” is not
exercising “ordinary care” when he instructs that employee to
“get up there” in a scissor lift and patch the gym ceiling? Mr.
Elwood’s supervisors did not tell him to “get over there and put your
hand in the door jamb.”
b) Duty to provide assistance
Second, the facts here show that Texas College breached the
duty to provide assistance. Recall that on October 21st Brackens
told Rollins that he “had to GET UP THERE and get it done." (CCR
4:303) (emphasis added). But Rollins had safely gotten off the lift
and directed his assistants do the work. He “…stayed up there about
five minutes on the 21st showing him what needed to be done, and
him and a community service finished off.” (CCR 4:297). Mr.
Brackens had been apparently upset by that fact. So later that
afternoon “…Mr. Bracket [sic] had told them that [Rollins] said [he]
wasn’t going to get up there and do it….” (CCR 4:298). So, once
44
again, Rollins was ordered to get up there. “That was on a Monday
when Mr. Harris direct me Tuesday morning GET UP THERE and
get it done.” (CCR 4:309) (emphasis added). Rather than let Rollins
use the assistance of his subordinates to do the patching, as he was
attempting to do on the 21st, Brackens and Harris got mad about it,
and ordered him personally to “get up there” on the 22nd. They made
the order, knowing he had been having “black outs.” The evidence
shows without a doubt that Texas College breached the duty to
provide needed assistance as set forth in Elwood.
c) No Duty to Warn
Here, Rollins is not complaining that Texas College should have
warned him of something he already knew (that it was dangerous for
him to get on the lift in his condition). He certainly knew that. He is
complaining that despite the fact that his employer also knew it, the
employer ordered him to take the risk he did not want to take. This
is not a “failure to warn” case. It is an “ordered to do it” case –
involving active and gross negligence.
Very recently, the Texas Supreme Court answered questions
which had been certified to it by the United States Court of Appeal
for the Fifth Circuit. In the case of Austin v. Kroger Texas, L.P., 465
45
S.W.3d 193 (Tex. 2015), the Texas Supreme Court surveyed the
landscape of cases relating to employer duty in non-subscriber cases.
Although most of the opinion deals with questions of liability relating
to premises defects, the Court mentioned an exception to the “no-
duty” rule in premises cases, which has at least some logical bearing
here:
Instead, the Court's abolition of the no-duty rule should
play a role only when an exception to the general rule applies—
that is, when the nonsubscribing employer owes a duty
despite the obviousness or employee's appreciation of a
danger because, despite the awareness of the danger, it is
necessary that the employee use the dangerous premises and
the employer should anticipate that THE EMPLOYEE IS
UNABLE TO TAKE MEASURES TO AVOID THE RISK. In such
cases, the employer cannot rely on the fact that the risk
was obvious and known to the employee to argue that the
employee bears some portion of the responsibility for his
own injuries, because the TWCA waives those defenses.
Compare Del Lago, 307 S.W.3d at 772–73; Parker, 565 S.W.2d
at 520, with Tex. Lab. Code § 406.033(a); Keng, 23 S.W.3d at
352.
Id. at 210 (emphasis added). Here there is active negligence, but even
if it were a premises case, it would be excepted from the no-duty to
warn rule, because Rollins, being ordered to “get up there,” was
“unable to take measures to avoid the risk.” Once he obeys the
46
master’s orders, the risk is unavoidable. He is up high, in harm’s
way, subject to “blacking out.”
d) Negligent Supervision, Negligent Training
In addition, as the Texas Supreme Court noted in Austin:
Thus, when a claim does not result from contemporaneous
activity, the invitee has no negligent-activity claim, and his
claim sounds exclusively in premises-liability. See Shumake,
199 S.W.3d at 284; Keetch, 845 S.W.2d at 265.
But when the landowner is also an employer and the
invitee is also its employee, this additional relationship
may give rise to additional duties, such as a DUTY TO
PROVIDE NECESSARY EQUIPMENT, TRAINING, OR
SUPERVISION. …..
When an injury arises from a premises condition, it is often
the case that any resulting claim sounds exclusively in premises
liability, but that is not necessarily the case. An injury can have
more than one proximate cause. Del Lago, 307 S.W.3d at 774;
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784
(Tex.2001). The fact that Austin alleged that a condition of
the premises proximately caused his injury does not
preclude his allegation that Kroger's negligent failure to
provide the Spill Magic system also caused his injury. If the
only relationship between Austin and Kroger were that of
landowner–invitee, the alleged facts could only give rise to a
premises-liability claim. …..
AS AUSTIN'S EMPLOYER, KROGER OWED AUSTIN
duties in addition to its premises-liability duty and ITS
DUTY NOT TO ENGAGE IN NEGLIGENT ACTIVITIES,
including the duty to provide Austin with necessary
instrumentalities.
47
Id. at 215-16 (emphasis added). Here, there is not even an allegation
of premises liability, such as in Austin. But it is clear that the Texas
Supreme Court acknowledges the duties owed in this case.
The evidence of negligent supervision is glaring. Not only did
Harris and Brackens give Rollins a foolish order to “get up there”
(CCR 4:303, 4:309), Brackens admitted that he had “leadership and
authority” problems (CCR 4:344). He had even suggested they put a
ladder on the platform to reach even higher. (CCR 4:303-304). This
is a textbook “reasonable person” failure.
As far as negligent training, Brackens admitted that he did not
pass the training he received on to his subordinates. (CCR 3:162).
(CCR 25:4133). Rollins “hadn’t been trained” and “didn’t know how
to operate it.) (CCR 25:4134) Mr. Harris, agreed that “untrained
employees shouldn’t be on scissor lifts.” (CCR 7:863).
e) No Duty to Provide Unnecessary Assistance
This statement in Elwood is a non-sequitur. Who needs
“unnecessary” assistance? Here, to avoid undue risk, the assistance
Rollins wanted was necessary. It is not outlandish to require a
supervisor with knowledge of the risk that one of his employees may
suddenly fall, to provide assistance and prevent it. See e.g.
48
McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App.
1974), writ refused NRE (June 12, 1974). In McEachern, the Court of
Appeals reversed and rendered a verdict for the plaintiff because it
was reasonably foreseeable that a patient who was on table in
emergency room of hospital might faint as result of psychogenic
shock, or some similar event, and that the hospital was under duty
to have someone in attendance with patient and keep proper lookout
for his safety.)
f) No evidence that the work is unusually
precarious
This statement in Elwood distinguishes the case quickly.
Elwood, involved loading groceries on the sloped portion of Kroger's
parking lot – “a task performed regularly—without any special
training or assistance—by customers.” Elwood, 197 S.W.3d at
795. Here, there is no indication that untrained students were using
the scissor lift regularly. It goes without saying that elevating one’s
self to the top of a gymnasium ceiling on a “scissor lift” is precarious.
49
(CCR 21:3467)
g) No evidence that the job required specialized
training
Here, again the case facts are opposite Elwood. Even Mr. Harris
said that that “untrained employees shouldn’t be on scissor lifts.”
(CCR 7:863).
h) No evidence that additional personnel were
necessary
Once again, this case is different from Elwood. Here, Rollins
used additional personnel on the 21st without incident, and let them
finish the work. (CCR 4:297). But on the 22d, the order of “get up
50
there” forced him upon the lift, when using his subordinates would
be the safer choice.
i) No obligation to dissuade
Finally, this case is different from Elwood and its companions
in that Rollins’ superiors were commanding him to take the
dangerous action. They were not watching him do it on his own and
failing to “dissuade” him. They were “persuading” him to do it under
threat of insubordination and possible termination. As the Texas
Supreme Court Stated in Austin: “an employee always has the option
to decline to perform an assigned task and incur the consequences
of that decision.” 465 S.W.3d at 214 (citing in jest, the long abrogated
McKee v. Patterson, 153 Tex. 517, 525, 271 S.W.2d 391 (1954)
abrogated by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.
1978)). Even McKee recognized that its “no duty” rule had limits:
This extreme common law view, which traded on the
economic necessity of the workman to earn a living, resulted in
the adoption of Liability and Compensation Acts to offer a
measure of certain protection to the workman. The plaintiff here
collected benefits under the Workmen's Compensation Act,
Vernon's Ann.Civ.St. art. 8306 et seq. In cases where
legislation has not abolished the defense of assumed risk,
the common law rule still prevails in this country in master
and servant relationships.
Id. at 396 (emphasis added).
51
In sum, the trial court either misread or misapplied the law and
facts on the concept of “duty.” There are several duties which apply
here: 1) the exercise of ordinary care; 2) the duty to provide
assistance; 3) the duty to provide adequate supervision; and 4) the
duty to provide proper training. Texas College commanded Rollins to
“get up there” without any training, and more importantly, while
knowing he had been suffering “black-outs.” This simple act
breached all of these duties.
2. Proximate Cause
a) Generally
In Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL
4594098 (Tex. App. July 30, 2015) the Court affirmed a lower court
judgment against the employer and summarized the requirements of
causation in a non-subscriber case:
Proximate cause consists of two elements: cause in fact
and foreseeability. Del Lago Partners, Inc., 307 S.W.3d at 774.
Cause in fact means that the defendant's act or
omission was a substantial factor in bringing about the
injury, which would not otherwise have occurred. Western
Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005).
Cause in fact is not shown if the defendant's conduct did no
more than furnish a condition that made the injury possible. Id.
The second element of proximate cause, foreseeability,
requires that a person of ordinary intelligence should have
anticipated the danger created by the negligent act or
52
omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d
472, 478 (Tex.1995). These elements cannot be established by
mere conjecture, guess, or speculation. Id. at 477. Proximate
cause may, however, be established by direct or
circumstantial evidence and the reasonable inferences
drawn from that evidence. Pilgrim's Pride Corp. v. Smoak, 134
S.W.3d 880, 889 (Tex.App.–Texarkana 2004, pet. denied) (citing
McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903
(Tex.1980)).
Id. at *11 (emphasis added).
The negligent order was the cause in fact of the fall. Here it was
more than a substantial factor in causing Mr. Rollins to fall. Mr.
Rollins swore that he “would not have gotten on the lift” but for the
order by Brackens and Harris. (CCR 25:4134). By simple logic, the
fall would not have occurred had he not been ordered to “get up
there.”
The accident was foreseeable here. It simply defies logic to
believe that Brackens should not have foreseen the possibility of
Rollins falling. Rollins informed both Harris and Brackens that he
“was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT
(CCR 25:4132). They had removed him from driving duty (CCR
25:4132), presumably to prevent an accident.
Certainly an order to engage in a negligent activity can be the
proximate cause of an accident. In Halliburton Oil Well Cementing
53
Co. v. Groves, 308 S.W.2d 919 (Tex. Civ. App. 1957), writ refused
NRE, the court found that a supervisor’s negligent direction to an
employee to apply an excessive “pull” on some tubing was a
“proximate cause” of the crown block breaking – an event which killed
the employee. Id. at 933. Similarly, an order to “get up there”
knowing the possibility of a black out, can be the proximate cause of
a fall.
b) Medical Causation
It is assumed that Appellees worked so hard at the trial court
level to exclude the doctor’s reports because they knew they needed
to defeat Rollins on the issue of medical causation. They tried
mightily to eliminate proof that the fall caused Rollins’ neck injury.
But they succeeded only in excluding the letter from Rollins’ treating
physician Samuel Barnett, MD. They did this by convincing the lower
court that the letter had not been properly authenticated. However,
it was properly authenticated as will be shown below in the next
argument. Nonetheless, there are two reasons why excluding Dr.
Barnett’s letter is irrelevant.
First, in a personal injury and fall case, lay testimony on
injury causation is sufficient:
54
…non-expert evidence may be sufficient to support a
finding of causation in cases where both the occurrence and the
medical conditions complained of are such that the general
experience and common sense of lay persons are sufficient to
evaluate the conditions and whether they were probably caused
by the occurrence.
City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134, at
*1 (Tex. App.—Dallas Sept. 18, 2007, no pet.). Texas law is replete
with cases on the topic. See e.g. Morgan v. Compugraphic Corp., 675
S.W.2d 729, 733 (Tex. 1984) (temporal connection to time of exposure
and physical proximity to fumes per testimony of plaintiff was
competent evidence that her alleged injuries were caused by the
release of chemicals.); Figueroa v. Davis, 318 S.W.3d 53, 61 (Tex.
App.—Houston [1st Dist.] 2010, no pet.) (plaintiff’s testimony about
broken teeth after car accident sufficient); Cotton Patch Cafe v.
McCarty, 2-05-082-CV, 2006 WL 563307, at *3 (Tex. App.—Fort
Worth Mar. 9, 2006, no pet.) (trip and fall case with plaintiff
testimony about injuries and doctor visits sufficient); Dawson v.
Briggs, 107 S.W.3d 739, 754 (Tex. App.—Fort Worth 2003, no pet.)
(plaintiff’s lay testimony about jaw problems after wreck was
sufficient).
In Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725, 744
(Tex. App.—Houston [14th Dist.] 2004), review granted, judgment
55
vacated, and remanded by agreement (Mar. 4, 2005) the court stated
that lay testimony which establishes a sequence of events
providing a “strong, logically traceable connection between the
event and the condition is sufficient proof of causation.”
Here, Rollins’ affidavit indicated that as a result of the accident
he “ended up having to have major surgery.” (CCR 25:4134). Rollins’
affidavit also indicates that immediately after the fall, he “could not
move at first” and “eventually” rolled over onto his feet. (CCR
25:4134). Rollins described the fall as “I just fell flat on my back and
my neck.” (CCR 4:311). Dr. Barnett’s surgery discharge summary
in the medical records filed by Texas College shows that his major
neck surgery happened on October 26, just a few days after the
October 22nd fall. (CCR 8:1050). The records also indicate a primary
diagnoses of “syncope and collapse.” (CCR 8:983). Certainly this is a
strong, logically traceable connection between the event and the
condition.
Second, the attempt at excluding the Dr. Reports failed. The
trial court denied the motion to strike them, and they contained the
very same information appellees were seeking to exclude by keeping
out the Barnett letter. The disclosure responses which incorporated
56
the reports, were specifically used as summary judgment evidence.
(CCR 2:109) (See reference to summary judgment exhibit “H” -
Plaintiffs' Fifth Supplemental Responses to Requests for Disclosure.).
The language of the reports leaves little doubt as to medical
causation:
Correspondence on July 18, 2014, by Dr. Barnett includes
the opinion that there was reasonable medical probability
that Mr. Rollins suffered an acute herniated disc at C4-C5
and spinal cord contusion caused by the fall on October 22,
2013, and that he would have chronic pain in his neck and
spinal cord dysfunction as a result of the injury.
REPORT OF GILBERT MARTINEZ PHD (CCR 6:611).
In summary, there is ample evidence of duty, breach of duty,
and causation. It was all still before the court after the onslaught of
exclusionary rulings. The summary judgment granted in favor of
Texas College should be reversed.
ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN
Even if one assumes that somehow more evidence is needed to
defeat Texas College’s summary judgment motion, more evidence can
be considered (see argument, infra). The trial court made numerous
basic errors when it granted Texas College’s Motion to Strike
Evidence (and related references in appellants’ response). Since the
57
order itself contains most of the text of what was stricken, it serves
as an easy guide to follow with the argument. It is contained in the
appendix as “FEB 9 ORDER ON TC EVIDENCE OBJECTIONS.”
1. Bracken’s Deposition Excerpts
A brief review of page 2 of the order indicates that the court
struck evidence to which Mr. Brackens was qualified to speak. He
indicated that he had received “scissor lift” training in his deposition.
(CCR 2:162). Moreover, he is simply reading the conditions
prescribed by a regulation and then stating (with his personal
knowledge) that the conditions required “did not take place.” (CCR
24: 3926).
2. Owner’s Manual
This was excluded on page 3 of the order. Perhaps it was not
noticed, but the manual was authenticated during Mike Frazier’s
Deposition:
Q. (BY MR. SIGMON) Have you ever seen this document
before?
A. sure.
Q. Okay. What is this?
A. This is the operation and safety manual that's inside the
scissor lift.
58
(CCR 20:3319). It is certainly relevant and Mr. Frazier is certainly
qualified. He is the “Manager of A-1 Rent All.” (CCR 2:172). It should
not have been excluded.
3. Rollins Affidavit
Parts of the Rollins affidavit were redacted based upon the order
of the Court. Although the redacted version was plenty to support
the statement of facts set forth in this brief, some additional relevant
material should not have been taken from the affidavit.
The objection labelled “D-3” on page 4-5 of the order should not
have been sustained. Mr. Rollins is perfectly qualified to authenticate
the excuses given to him by his Doctors.
The objection labelled “D-6” on page 5 of the order should not
have been sustained. Mr. Rollins is qualified to testify as to what his
doctor told him, and it is clearly admissible hearsay, because it is a
statement made for the purpose of medical diagnoses and is
admissible pursuant to 803(4) of the Texas Rules of Evidence.
The objection labelled “D-7” on page 5 of the order should not
have been sustained. It is not hearsay. He is simply stating what he
was directed to do. Moreover, he is qualified to authenticate a note
given to him by his doctor.
59
4. Barnett Letter
The objection labelled “D-15” on page 7 of the order should not
have been sustained. This is Mr. Rollins’ authentication of the letter
from Dr. Barnett, the non-paid, treating physician who performed the
surgery on Rollins. In its motion to exclude, Texas College did not
object to the effort of Mr. Rollins to authenticate it. That is no doubt
because they were aware of the significant body of law allowing lay
witnesses to identify and authenticate correspondence. See, e.g.
Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 177
(Tex. 2004) (Dunwoody's affidavit also authenticates correspondence
that passed between the condemnors and the landowners).
Moreover, the bar on authentication is very low. Rule 901 of the
Texas Rules of Evidence merely requires that a witness with
knowledge testify “that an item is what it is claimed to be.” Tex. R.
Ev. 901. Rollins’ affidavit clearly does that with respect to the letter:
My surgeon’s letter to my lawyer describing my injury is
attached to my affidavit as Exhibit D. I have reviewed this
document with my lawyer and I am familiar with my surgeon's
opinion. He provided the letter in connection with this case.
ROLLINS AFFIDAVIT (CCR 7:888).
60
Texas College’s only objection to the Barnett Letter is a stock
objection that does not apply. The objection in its entirety is as
follows:
This portion within Section 6 of Mr. Rollins' affidavit
should be stricken and not considered by the Court because the
information is hearsay. The letter attached to Rollins'
affidavit as Exhibit D is incompetent hearsay for which no
exception applies. Mr. Rollins' sole purpose for including such
records is to prove the truth of the matter asserted by Mr.
Rollins. Therefore, Texas College's objection to this portion of
Mr. Rollins' affidavit and the exhibit referenced should be
sustained, and this portion and the exhibit stricken and
disregarded by the Court.
(CCR 22:3678) (emphasis added). The objection is simply erroneous
and inapplicable. Rule 803(4) specifically reads as follows:
(4) Statement Made for Medical Diagnosis or Treatment. A
statement that:
(A) is made for--and is reasonably pertinent to--medical
diagnosis or treatment; and
(B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause.
TX R EVID Rule 803. A simple review of the letter indicates that it is
precisely what the rule applies to. See BARNETT LETTER (in Appendix).
The Barnett letter should not have been excluded.
THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE
Appellants sought leave to introduce two pieces of evidence in
its motion to re-open the evidence. However, they now complain only
61
about the trial court’s refusal to consider the Barnett Affidavit. See
BARNET AFFIDAVIT (in Appendix). Dr. Barnett's sworn affidavit offers
nearly the exact same information that is contained in the Barnett
Letter. See BARNETT LETTER (in Appendix). Thus, this appellate
request is superfluous in the event that this Court agrees that the
letter was properly authenticated. Moreover, since the opinions of
Dr. Barnett were also summarized by Dr. Gonzales in his report, this
argument is, in reality, a fourth tier of insurance. For this issue to
be decisive, this Court would first have to: (1) reject Rollins’ lay
testimony combined with the medical records already in evidence, (2)
reject the use of Dr. Gonzales report, and (3) rule that Rollins was
unqualified to authenticate correspondence about his own treatment
from his treating physician. Nevertheless, in the event of such a slim
possibility, this Court should then concern itself with fairness - not
technicalities.
A trial court may permit a party to offer other additional
evidence when it "clearly appears to be necessary to the due
administration of justice." Tex. R. Civ. P. 270. In determining whether
to grant a motion to reopen, the trial court considers whether: (1) the
moving party showed due diligence in obtaining the evidence, (2) the
62
proffered evidence is decisive, (3) reception of such evidence will
cause undue delay, and (4) the Court's refusal will cause an injustice.
Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364, 366-67
(Tex.App.-Dallas 1984, no writ). The trial court should exercise its
discretion liberally "in the interest of permitting both sides to fully
develop the case in the interest of justice." Id. at 367.
The subject matter of the Barnett letter/affidavit is highly
relevant, material, and (as noted above) potentially decisive. There
was no lack of diligence in securing this evidence, rather, the
evidence was offered as a narrative opinion letter early on. It was
properly attached to, and authenticated by Rollins’ summary
judgment affidavit.
It was shortly after the letter was stricken that Rollins’ counsel
sought to cure the alleged (but non-existent) defect by reformulating
it as an affidavit and obtaining the Doctor’s oath. It was provided to
the court in a motion for reconsideration, and as a motion to reopen.
Reopening a case for the reception of additional evidence is
discretionary. See McRoy v. Riverlake Country Club, Inc., 426 S.W.2d
299 (Tex.Civ.App. -Dallas 1968). The discretion is to be liberally
exercised, particularly if doing so is in the interest of justice. Id. See
63
also, Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ
dism'd.) (Court stating there are occasions where it may be the court's
duty to grant the motion to reopen). Appellees would not have been
prejudiced if the trial court had granted appellants’ request. Dr.
Barnett's opinion was known to Texas College. The affidavit format
is virtually identical in substance to the letter disclosed to defense
counsel during discovery.
Appellants have meritorious claims in this non-subscriber case
that should have survived summary judgment. If there was a defect,
the affidavit cured it. The trial court should have exercised its
discretion flexibly "to obtain a just, fair, equitable and impartial
adjudication of the rights of litigants under established principles of
substantive law." Tex. R. Civ. P. 1. See also In re Hawk, 5 S.W.3d
874 (Tex.App.-Houston [14 Dist.] 1999).
3. THE TRIAL COURT ERRED IN GRANTING MPF’S MOTION
FOR SUMMARY JUDGMENT
The rental company should not “get a pass” for renting
dangerous construction equipment without including operator safety
manuals.
64
THE ELEMENTS AND THE EVIDENCE
1. Duty
In Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d
757 (Tex. App. 1997) the Court of Appeals reversed a directed defense
verdict in a case involving a death due to improper operation of a
crane. Among the significant facts of the case, the court described
the following:
…there was no operator's manual present, and, that the
operator's manual that should have been in the crane contained
specific instructions to avoid moving the crane until all
personnel are clear. Wiethorn further testified that there was no
load chart to comply with the American National Standards
Institute (ANSI) within the crane. The operator's manual was
required by OSHA and ANSI to be kept in the cab at all
times. According to Wiethorn, OSHA and ANSI standards
applied to this particular crane and Coastal could have easily
provided the people who worked with the crane with the
pertinent OSHA standards regarding its operation. He testified
that proper operation of a crane calls for the operator to be
thoroughly conversant with the crane's operating manual,
which the crane operator could not have done in this case
because it was not present in the cab.
Id. at 760-61 (emphasis added). The court indicated that even
though the general contractor [Coastal] did not control the crane,
“Coastal had a responsibility to ensure a safe and suitable crane…”
Id. at 761. See also Goodwin v. Bluffton Coll., 2004-Ohio-2223
(material issue of fact as to whether company's breach of duty to
65
provide college with safety instruction manuals and safety
components necessary for proper erection of scaffolding was
proximate cause of student's death precluded summary judgment.).
Here the situation is similar: although A-1 (MPF) did not control
the situation in the gymnasium on the day Rollins was injured, they
had a duty to provide a “safe and suitable” scissor lift.
A scissor lift is a piece of heavy machinery governed by CFR
1926.454 of the Occupational Health and Safety Act (“OSHA”) as a
"mobile scaffold". The American National Standards Institute
("ANSI") safety standard A92.6, AMERICAN NATIONAL STANDARD FOR
SELF-PROPELLED ELEVATING WORK PLATFORMS, (CCR 21:3430-3573)
also addresses scissor lifts and the care they require. In Texas:
The relevance of an OSHA standard is that it, and the ANSI
standards which form the basis for most OSHA standards,
are the cumulative wisdom of the industry on what is safe and
what is unsafe. While OSHA was written to protect employees,
an unsafe practice for an employee applies equally well to a
customer who legitimately finds himself in the same geographic
space as the employee. Safety principles don't change
depending on whether the victim is an employee, a customer, or
a passerby. Therefore it has relevance to the standard of care.
It doesn't establish negligence per se, and it does not create a
separate cause of action. Melerine v. Avondale Shipyards, Inc.,
659 F.2d 706 (5th Cir.1981); Jeter v. St. Regis Paper Co., 507
F.2d 973 (5th Cir.1975). But it may be relevant evidence. …. All
of appellants' authorities deal with causes of action brought for
violations of those OSHA regulations. In the case at bar, no such
66
recovery was sought by appellee. Rather, the evidence was
introduced for the purpose of establishing a standard of
conduct to serve as a basis for a negligence cause of action ...
the testimony concerning the OSHA regulations only provided
statutory reinforcement of the obvious common-law standard.
Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San Antonio
1995).
ANSI A92.6 part 6.3.1 requires the owner to provide the
“operating manual” with each “rental” delivery. (CCR 21:3454).
(emphasis added). The manual begins by reminding us that the
manual itself is a very important "tool" and "keep it with the
machine at all times". JLG OWNER'S MANUAL "FOREWORD.”
(CCR 23:3766) (emphasis added). Nothing more need be said. There
is a duty.
2. Breach of duty
Here, there was no owner’s manual on board the lift.
(CCR 2:162). Rollins swore that MFP (A-1) “did not offer us
training” or “familiarize us with the lift.” (CCR 25:4133)
(emphasis added). The MPF [A-1] delivery crew did not bother to
come in and train Rollins, even though he inquired. They told him
that Texas College already “knew how to use the lift.” Id. (CCR
25:4143). Rollins stated that “A-1 did not offer us training nor did it
67
familiarize us with the lift. The person from A·1 just came and
delivered the machine and left.” Id. Of course the “machine” had no
manual. The duty was breached.
3. Proximate Cause
Rollins “hadn’t been trained” and “didn’t know how to operate
it.) (CCR 25:4134) Mr. Harris, agreed that “untrained employees
shouldn’t be on scissor lifts.” (CCR 7:863). When asked about what
training could have made a difference, Mr. Rollins testified that he
“would have been trained to know how to use it and to get on and off
the proper way…” (CCR 4:316-317).
Most importantly, section 2.1 of the manual reads:
The aerial platform is a personnel handling device; so it is
necessary that it be operated and maintained only by trained
personnel.
Persons under the influence of drugs or alcohol or who are
subject to seizures, dizziness or loss of physical control
must not operate this machine.
JLG OWNER'S MANUAL at 2-1 (CR 23:3341) (uncorrected record). Mr.
Rollins indicated that “If Mr. Brackens had looked at the owner’s
manual and informed me that a person with blackouts shouldn’t be
on a lift, I would not have gotten on.” (CCR 25:4135). This is
certainly more than a scintilla of evidence on proximate cause.
68
ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN
1. Owner’s Manual
The objections to the admission of the owner’s manual is
ludicrous. First and foremost, it is part of the equipment that they
admittedly rented. Second, a copy (as asserted by MPF) was already
in their possession. It was produced at Mike Frazier’s Deposition and
properly authenticated:
(Plaintiff's Exhibit 4 marked.)
MR. SIGMON: Let me hand you what' a being marked as
Plaintiff's 4.
THE WITNESS: I'm sorry. Closing these so I have some room.
Okay, sir.
Q. (BY MR. SIGMON) Have you ever seen this document before?
A. sure.
Q. Okay. What is this?
A. This is the operation and safety manual that's inside
the scissor lift.
Q. Okay. So this is an operation and safety manual from JLG,
correct?
A. Yes.
Q. JLG is the manufacturer of the model 1930es right?
A. Yes.
Q, Which is the same model that you rented to Texas College
that is involved in this lawsuit, right?
A. Yes.
Q, Now, on the front page down in the left-hand portion of the
page, you see four letters? You see those four letters?
A. The AN -- the ANI -- ANSI?
Q. Yes,
A. Yes.
Q, Do you see that? And you've already identified what ANSI
stands for, right?
69
A. Yes.
Q. And what is it again?
A. American National Safety Institute.
Q. So you'd agree with me that the American National Safety
Institute has put its logo on the front of this owner's
manual, right?
MR. GEDDIE: Objection, form.
A. It's yes, it's on there.
(CCR 20:3318-3319). As one can see, the objection that “plaintiffs
have failed to establish its authenticity or relevance, or lay any proper
predicate for the admissibility of same, either through a qualified
witness or otherwise,” as set forth in MPF’s filing (CCR 22:3720) is
baseless.
Moreover, one can look at the objections filed by MPF
(CCR 22:3718-3725) and discern that they are (in large part) stock
objections, edited and filed without any supporting evidence, and in
many cases lacking detail. MPF objected to the manual on the basis
that it was not produced timely in violation of Texas Rule of Civil
Procedure 193.6(a). (CCR 22:3719-3720). But the objection is a
“stock objection,” taken off the shelf and pressed without any
supporting evidence or explanation. Bare stock objections filed in
writing - with no oral hearing, no evidence, or explanation - should
70
be given short shrift by this Court. As shown in the argument above,
the manual is probative. It was authenticated. It is admissible.
2. Rollins Affidavit
MPF objected to the Rollins affidavit on the grounds that it was
a sham and should “be stricken in its entirety. (CCR 22:3720).
However the trial court did not exclude the entire affidavit, but rather
painstakingly edited it in response to Texas College’s objections.
MPF alternatively asked the court to, at a minimum, exclude
“the statements that directly contradict” his testimony. Id. Because
MPF sought an alternative form of relief, the objection is multifarious.
Compounding the confusion, the order is vague. It is simply a check
line with a check mark in it, placed in the “sustained” column. See
FEB 9 ORDER ON MPF EVIDENCE OBJECTIONS p. 2 (CCR 24:3937) (also
in appendix). There is no way for this Court to discern which one of
the alternative forms of relief was granted by looking solely at the
order. However, because the trial court did edit the affidavit to
exclude the testimony referenced in the alternative plea (CCR
24:3930-3931) (Texas College objection 13 sustained), one can
discern that the trial court did not strike the affidavit entirely, but
71
granted the lesser relief. Thus, this Court should consider the entire
affidavit (subject to Texas College objection 13) as to MPF.
3. Thorpe Affidavit
Appellees filed a joint motion to strike the affidavit of appellants’
aerial lift safety expert, Burt Thorpe. See THORPE AFFIDAVIT (CR
23:3402-3409) (original record) (also in appendix). Tellingly, the
motion to strike the affidavit did not emphasize unfair surprise or
prejudice. That is because there was none.
The issues presented in the Motion were: whether Plaintiffs
timely disclosed Burt Thorpe; whether the disclosure was sufficient;
and whether Plaintiffs' supplemental designations passed muster of
the discovery rules and in no way constitute unfair surprise,
prejudice or trial by ambush. See Tex. R. Civ. P. 193.6(b).
It was undisputed that the trial court's scheduling order
required Plaintiffs' to designate all experts by October 16, 2014.
Plaintiffs met the deadline with their October 13, 2014 Fourth
Supplemental Disclosure adding Burt Thorpe as a safety expert.
(CCR 6:710-718) Appellees argued that the supplemental October 13
disclosure was inadequate and therefore untimely per Rule 194.2(f).
72
Appellees cited Cunningham v. Columbia/St. David's Healthcare
System, L.P., 185S.W.3d 7 (Tex.App.-Austin 2005) for support. In
Cunningham, the plaintiff was required to designate all experts by
June 29, 2004. Id. at 11. Plaintiff responded to a December 2003
request for disclosure that she had not yet determined "any testifying
expert witnesses" and would supplement. Id. The June disclosure
deadline passed without plaintiff supplementing her response (i.e.
she provided no information about her expert). Id. On September 7,
2004 (i.e. 90 days later) plaintiff attached her expert's affidavit for the
first time, attempting to rely upon it as proof that her claims should
survive summary judgment. Id. at 11. The appeals court affirmed
defendant's motion to strike on the grounds that plaintiff had herself
conceded the designation was untimely and that she failed to satisfy
her burden of showing either good cause or a lack of unfair surprise
or prejudice. Id. at 13.
The facts here are distinguishable: at the time Rollins disclosed
Burt Thorpe in October, he provided to appellees all of the
requirements of 194.2(f) including: his name, address and telephone
number; the subject matter on which he was to testify; the general
substance of his mental impressions and opinions; and his current
73
resume. See PLAINTIFFS' FOURTH SUPPLEMENTAL DISCLOSURE at 6-7
(CCR 6:710-718). At the time of the disclosure, Plaintiffs expert had
not been provided any "documents, tangible things, reports, models
or data compilations" per 194.2(f)(A). In fact, he had only been
retained recently to testify about issues pertaining to safety and the
lack thereof - not on medical or damages issues. The difference
between the substance of Plaintiffs' disclosure of Burt Thorpe in this
matter, (timely per the scheduling order) and the complete lack of
response by the plaintiff in Cunningham is clear. The court in
Cunningham was absolutely correct in its judgment that the plaintiff
had not met her burden. There was no evidence of her expert's utter
existence prior to her summary judgment response, which is the
epitome of "unfair surprise"- particularly in the context of a
dispositive proceeding. Id. at 14. Here, Rollins met the initial
requirement of a timely disclosure per the rules and the Court's
Scheduling Order when he designated Mr. Thorpe on October 13.
Defendants received fair notice of Mr. Thorpe's participation as
an expert; and were given the subject matter of his testimony, thus
refuting any claim of unfair surprise. See Gutierrez v. Gutierrez, 86
S.W.3d 729 (Tex.App. -El Paso 2002).
74
4. The ANSI Standard and "Statement of Best Practices”
During the course of the proceedings, appellants introduced the
American National Standards Institute ("ANSI") safety standard
A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING
WORK PLATFORMS, (CCR 21:3430-3573) and ANSI’s STATEMENT OF BEST
PRACTICES OF GENERAL TRAINING AND FAMILIARIZATION FOR AERIAL WORK
PLATFORM EQUIPMENT, February 2010 (CCR 20:3215-3234).
MPF objected to these documents claiming that they were not
authenticated, not timely disclosed, and irrelevant. Ironically, with
respect to ANSI 92.6, MPF itself produced the same text on 6/26/14
in response to Plaintiffs’ written request for production. (SR 13).
Both standards are discussed in the Thorpe affidavit. They are
referenced in response to requests for disclosure regarding Mr.
Thorpe’s testimony. They are relevant. Although the trial court
sustained the objections, it should not have. Appellant submitted
the matters requesting “judicial notice of the Code of Federal
Regulations, OSHA and ANSI provisions cited” therein, and gave
“notice of their intent to rely” on them. (CCR 20:3264). See,
Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) wherein
the Texas Supreme Court held that: (1) a court may take judicial
75
notice of OSHA regulations without such regulations being included
in the pleadings, and (2) that the trial court committed reversible
error by not considering the OSHA regulation. See also Tex. R. Evid.
201. It bears repeating that ANSI standards “form the basis for most
OSHA standards.” Seale, 904 S.W.2d at 720. Since OSHA adopts
ANSI standards as its standards, the court was duty bound under
Rule 201 to take notice.
THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE
Appellants incorporate by reference the same argument made
as to Texas College.
CONCLUSION AND PRAYER
Wherefore, Appellants pray that this Court: (1) reverse the trial
court’s order granting summary judgment in favor of Texas College;
(2) reverse the trial court’s order granting summary judgment in favor
of MPF Investments, LLC; and (3) remand the case for further
proceedings. Also in the interest of justice and clarity: (4) reverse the
orders (a) denying the motion to reopen the evidence, (b) striking the
expert designation of Burt Thorpe, and to the extent argued in this
76
brief, granting (c) Texas College’s evidentiary objections and (d) MPF’s
evidentiary objections.
Respectfully submitted,
/s/ Ernesto D. Sigmon
Ernesto D. Sigmon
State Bar No. 24010397
LAW OFFICES OF ERNESTO D.
SIGMON
WALKER SIGMON LAW
416 West Saulnier Street
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
ATTORNEY FOR APPELLANTS,
GARRY L. ROLLINS AND CARLA D.
ROLLINS
77
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using
Microsoft Word 2013 and contains 14,980 words, as determined by
the computer software’s word-count function, excluding the sections
of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).
/s/ Ernesto D. Sigmon
Ernesto D. Sigmon
State Bar No. 24010397
LAW OFFICES OF ERNESTO D. SIGMON
WALKER SIGMON LAW
416 West Saulnier Street
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
ATTORNEY FOR APPELLANTS,
GARRY L. ROLLINS AND CARLA D. ROLLINS
78
CERTIFICATE OF SERVICE
I certify that on October 15, 2015 I served a copy of Appellants’
Brief and Appendix on the parties listed below by electronic service
and that he electronic transmission was reported as complete. My e-
mail address is esigmon@esigmon.com.
/s/ Ernesto D. Sigmon
Ernesto D. Sigmon
State Bar No. 24010397
SIGMON LAW, PLLC
2929 Allen Parkway, Suite 200
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com
ATTORNEY FOR APPELLANTS,
GARRY L. ROLLINS AND CARLA D. ROLLINS
Greg Smith
Texas Bar No. 18600600
Nolan D. Smith
Texas Bar No. 24075632
RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500
Tyler, Texas 75702
Telephone: 903-597-3301
Facsimile: 903-597-2413
Mr. Trey Yarbrough
YARBROUGH WILCOX GUNTER, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
79
Fax: 903.595.0191
Levon G. Hovnatanian
Texas Bar No. 10059825
hovnatanian@mdjwlaw.com
lonergan@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Todd M. Lonergan
Texas Bar No. 12513700
lonergan@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Ryan K. Geddie
Texas Bar No. 24055541
geddie@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile
80
No. 12-15-00121-CV
__________________________________________________________________
IN THE COURT OF APPEALS
FOR THE TWELFTH DISTRICT OF TEXAS
TYLER, TEXAS
__________________________________________________________________
GARRY L. ROLLINS AND CARLA D. ROLLINS,
Appellants
V.
TEXAS COLLEGE AND
MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
Appellees
__________________________________________________________________
APPELLANTS’ APPENDIX
__________________________________________________________________
Trial Court Orders
February 19 Order Denying Motion to Strike Doctor Reports……….. 3
February 19 Order Striking Thorpe Testimony…………………………. 4
February 19 Order on MPF Evidence Objections……………………….. 5
February 19 Order on TC Evidence Objections…………………………. 6
February 19 Order Granting MPF Summary Judgment…………….... 7
February 10 Order Granting TC Summary Judgment……………..…. 8
Order Clarifying Objections………………………………………………….. 9
Order Denying Reconsideration of TC Summary Judgment…………. 12
Order Denying Reconsideration of MPG Summary Judgement…….. 13
Order Denying Motion to Reopen Evidence……………………………… 14
Pleadings
6th Amended Petition………………………………………………………….. 15
7th Amended Petition………………………………………………………….. 24
8th Amended Petition………………………………………………………….. 34
(contents continued on next page)
Key Documents
Full Rollins Affidavit…………………………………………………………… 42
Redacted Rollins Affidavit……………………………………………………. 47
Barnett Letter…………………………………………………………………… 52
Barnett Affidavit……………………………………………………………….. 54
Thorpe Affidavit………………………………………………………………… 56
Objections to Evidence
Texas College’s Objections to Evidence…………………………………… 64
MPF’s Objections to Evidence………………………………………………. 83
Cases
Austin v. Kroger………………………………………………………………… 96
Kroger v. Elwood……………………………………………………………….117
Kroger v. Milanes………………………………………………………………120
Lawrence v Coastal Marine Service………………………………………..140
CAUSE N0.13-33153-A
GARRY L. ROLLINS and
CARLA D. ROLLINS
Plalntlffa,
Vs. SMITH COUNTY, TEXAS
TEXAS COLLEGE and
MPF INVESTMENTS, LLC D/B/A
"A·1 RENT ALL"
Defendants, 7th JUDICIAL DISTRICT
ORDER ON DEFENDANTS MPF INVESTMENTS, LLC D/B/A A·1 RENT ALL AND
TEXAS COLLEGE'S MOTION TO STRIKE EXPERT DESIGNATIONS OF GILBl!!RT
MARTINEZ, JOE 0. GONZALES, AND THOMAS M. RONEY
THE COURT has considered Defendant's Motion to Strike the Expert Designations of
Giibert Martinez, Joe G. Gonzalez and Thomas M. the applicable law, and the
'lM K:-tPl:t,,
response from Plalntlf'fs and supporting exhibits! Having ddne so, the Court Is of the
opinion that the Defendant Is not entitled to the relief sought In its Motion. It Is therefore,
ORDERED, ADJUDGED, and DECREED that the motion Is DENIED.
It Is so ORDERED.
ORDER Solo P1g1
APPENDIX 3
Page 3924
CAUSE NO. 13-3353·A
GARRY L. ROLLINS AND §
CARLA D. ROLLINS, §
Plaintiffs, §
I
v. § SMITH COUNTY, TEXAS
§
TEXAS COLLEGE, CHRISTIAN §
METHODIST EPISCOPAL CHURCH §
AND MPF INVESTMENTS, LLC §
D/B/A 14A·l RENT ALL", §
Defendant•. § 7TH DISTRICT COURT
ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A·l RENT
ALL'S MQTION TO STRIKE EXPERT DESIGNATION OF BURT IHORfE
The Court has considered Defendant MPF Investments, LLC dlb/a A·l Rent All's
Motion to Strike Expert Designation of Burt Thorpe, Plaintiffs' Response, the pleadings on file,
any additional briefing accepted by the Court, and the applicable law. Having done so, the Court
is of the opinion that Defendant, MPF Investments, LLC d/b/a A· l Rent All, is entitled to the
relief requested. It is therefore,
ORDERED, ADJUDGED and DECREED that Burt Thorpe shall not testify at trial in this
matter and no opinion testimony from Burt Thorpe will be admined into evidence in this matter
for any purpose.
It is so ORDERED.
Sii!led this of ..........
ORDER GMND'.'\G DEFENDANT MPf !NYESIMENJ. LLC'S
MOTION IO STRJKE EXfERI DESIGNATION OF BURI IHOBPt: SOLO PAGE
APPENDIX 4
Page 3923
CAUSE NO. 13-3353-A
GARRY L. ROLLINS AND §
CARLA D. ROLLINS, §
Plaintiffs, §
§
v. § SMITH COUNTY, TEXAS
§
TEXAS COLLEGE, CHRISTIAN §
METHODIST EPISCOPAL CHURCH §
AND MPF INVESTMENTS, LLC §
D/B/A "A·l RENT ALL", §
Defendantl. § 7TH DISTRICT COURT
ORDER ON MPF INVESTMENTS, LLC D/B/A A·l RENT
ALL'S OBJECTIONS TO PLAINWFS' SUMMABY JypGMENT EVIDENCE
The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's
Motion to considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's Objections to
Plaintiffs' Summary Judgment Evidence, Plaintiffs' Response to MPF's Summary Judgment and
any responses and replies thereto, the pleadings on file, any additional briefing accepted by the
Court, and the applicable law. Having done so, the Court makes the following rulings on A-1 's
objections:
Evidence Sustalped Depleci
1. Excerpts from the deposition of Mike Frazier
Question at 59: 10
Questions beginning at 60:21
Questions beginning at 61:4 - 14
Questions beginning at 62:4
6. The JLG Owner'• Manual Model
1930-ES (excerpts).
OBDER ON m>F JNYESW&'IIS. LLC D/BJA A-1 RE..''J
6{,VS OB.JECTIONS IO PLAINmfS' SJJMMABY Jtl>GMENI EVIDENCE PAGEl
APPENDIX 5
Page 3936
•
GARRY L. ROLLINS and §
CARLA D. ROLLINS §
Plain tlft'1 §
§
vs. § SMITH COUNTY, TEXAS
§
TEXAS COLLEGE and §
CHRISTIAN METHODIST I
EPISCOPAL CHURCH I
I
Defendants. § 7th JUDICIAL DISTRICT
ORPER ON DEfENDANI TEXAS COLLEGE'S OBJECTIONS/MOTION TO STRIKE
EVIDENCE AND BEFEBENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE'S
MOTION FOR SUMMARY JUDGMENT
ON THIS DAY, the Court considered Texas College's Objections/Motion to Strike Evidence
and References in Plaintiffs' Response to Texas College's Motion for Summary Judgment. After
reviewing the pleadings on file, hearing any arguments of counsel, and the applicable law, the Court
hereby makes the following ruliniS on Texas College's objections:
A. Texas College's objection to Plaintiffs' references to and use of Plaintiffs' Seventh and
Eighth Amended Petition as summary-judsment proof are hereby:
Sustained: v Overruled:
---
B. Texas College's objections to the following excerpts from the deposition of Roland Brackens
and the references in Plaintiffs' response to such are hereby:
Sustained: ..! Overruled: _ __
Deposition Testimony: 18:4 - 18:2S; 22:1S -
23: 14; 24:8 - 24: 11; 24:23 - 2S:6
ORDER ON DEFE!llDA."'l'T TEXAS COLLEGE'S 0BJECTIONs/MOTION TO STRIKE
EVIDENCE A.'iD REFERENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE 1 5
MOTION FOR SUMMARY JlJDGMENT PAGEi OFIO
APPENDIX 6
Page 3925
' ..
....
Dis. .ii,,
:·;
.• . '':CR
' 'L.r.: K
1015 Fte I 9 AH
CAUSE NO. 13-33!3-A - · ·. · 0 qI
GARRY L. ROLLINS AND
s I •
§
CARLA D. ROLLINS,
Plaintiffs, I a, ·..irv-
t
v. § SMITH COUNTY, TEXAS
§
TEXAS COLLEGE, CHRISTIAN §
METHODIST EPISCOPAL CHURCH §
AND MPF INVESTMENTS, LLC §
D/B/A "A·l RENT ALL", §
Defendants. § 7TH DISTRICT COURT
ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A-1 RENT ALL'S
IRADITIONAL AND NO-EVJDENCE MOTION FOR SUMMABY JUDGMENT
The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's
Traditional and No-Evidence Motion for Summary Judgment, Plaintiffs' Response, the pleadings
on file, the summary judgment evidence, any additional briefing accepted by the Court, and the
applicable law. Having done so, the Court is of the opinion that Defendant, MPF Investments,
LLC d/b/a A-1 Rent All, is entitled to summary judiMent as to all of Plaintiffs' claims. It is
therefore,
ORDERED, ADJUDGED and DECREED that Plaintiffs' claims and causes of action
against Defendant MPF Investments, LLC d/b/a A-1 Rent All are dismissed with prejudice, and
said Defendant's taxable costs are assessed against Plaintiffs.
OBQER GBANIING DEFE:SDANT MPF I:SVESIMENI. LLC'S
)IOIION FOR SUM)IARY JUDGMENT PAGE I
APPENDIX 7
Page 3938
0 0
. f../: .r.·r)·
'!'""
.;:;, ' l.'. ' .
I•
"·\ : ,........ )'
• ·''\
CAUSE NO. 13-33!3-A tO/J rre '
GARRY L. ROLLINS and § IN THE I: Alt/(): l/2
CARLA D. ROLLINS § o}' . /)·· -
Plaintiffs § -
§
vs. § SMITH COUNTY, TEXAS
§
TEXAS COLL.EGE and §
CHRISTIAN METHODIST §
EPISCOPAL CHURCH §
§
Defendants. § 7th JUDICIAL DISTRICT
ORQER GBANTING TEXAS COLLEGE'S MOIION FOR SUMMARX JUQGMENT
The Court has considered Defendant, Texas College's, Motion for Swnmary Judgment, Plaintiffs'
Response, the on file, the swnmary judgment evidence, any additional briefing accepted by the
Court, and the applicable law. Having done so, the Court is of the opinion that Defendant, Texas College,
is entitled to sununary judgment as to all of Plaintiffs' claims. It is, therefore,
ORDERED, ADJUDGED, and DECREED that Plaintiffs' claims and causes of action against
Defendant Texas College are dismissed with prejudice, and said Defendant's taxable costs are assessed
against Plaintiffs.
It is so ORDERED.
SIGNED this the of ......
APPENDIX 8
Page 3935
CAUSE NO. 13·33S3-A
GARRY L. ROLLINS AND §
CARLA D. ROLLINS, §
Plalndffs, §
§
v. § SMITH COUNTY, TEXAS
§
TEXAS COLLEGE, CHRISTIAN §
METHODIST EPISCOPAL CHURCH §
AND MPF INVESTMENTS, LLC §
D/B/A "A·1 RENT ALL", §
Defendant•• § 7TH DISTRICT COURT
AGREED ORDER CLARIFYING EARLIER ORDER ON TEXAS COLLEGE'S
OBJECTIONSIMOTION TO STRIKE EVIDENCE AND REFERENCES IN PLAINTIFFS'
RESPONSE TO MOTION FOR SUMMARY JUDGMENT
On this day the Court considered Texas College's unopposed motion for entry of an order
clarifying an earlier February 19, 20lS orderof this Courton Texas College's objections and motion to
strike evidence and references in Plaintiffs' Response to Texas College's Motion for Summary
Judgment. After considering the motion, the Court finds that there is the possibility of someconfusion
8S to the sequence ofrulings in Section D of the prior orderand is ofthe opinion that the motionshould
be granted.
The Court, therefore, enters the following Order clarifying certain rulings in its February 19,
201S Order on Defendant Texas College's Objections/Motion to Strike Evidence and References in
Plaintiffs' Response to Texas College's Motion for Summary Judgment (hereinafter sometimes "Prior
Order"), and specifically, therulings contained in Section 0 of the PriorOrder:
1. In Section D, at page 4, the Court overruled DefendantTexas College's objection to the
particular excerpt from Mr. Rollins' affidavit which reads "(at least I SO Ibs.)," finding
that the quoted language is 8 personal estimate only.
2. In Section D, at page S, with respect to the excerpt from Mr. Rollins' affidavit which
ORDER ON DEFENDANT TEXAS COLLEGE'S MonON FOR ENTRV OF ORDER CLARJFVING
EARLIER ORDER ON OBJErnoNSIMonON TO STRIKE. EVID1SCE A;liD REF'1!.RENCES
IS PLAINTIFFS' RESPOSSETO TEXAS COLLEGE'S MOTlO!\l FOR St.:MMARY JUDGMENT PAGE 1 Of 3
APPENDIX 9
PIIOA 4177
reads, "We were not trained or instructed on proper lifting techniques or given any
direction for performing a safe lift of the size," the Court sustained Texas College's
objection as to "We," but otherwise overruled the objection.
3. In Section D, at page 6, the Court sustained Texas College's objection to that portion of
an excerpt from Mr. Rollins' affidavit which reads, "Under Mr. Brackens authority at
Texas College there was never an emphasis on safety or training for any of the work we
were assigned. While under his supervision and leadership at Texas College, none of the
employees were ever sent to any kind of safety training sessions or OSHA workshops,"
With respect to the sentence in the same excerpt which reads, "This kind of thing made
me and other employees question the school's attitude toward our safety," the Court
sustained Texas College's objection as to the words "and other employees" but
overruled the objection as to the remainder of that sentence. The Court redacted the
portions to which the objections were sustained.
4. In Section 0, at page 7, with respect to the excerpt from Mr. Rollins' affidavit which
reads, "Of course, I later ended up having to have major surgery because of my injury,"
the Court sustained Texas College's objection to the extent of the words "because of my
injury," but overruled the objection to the remainder of the excerpt.
5. Other than the objections, or parts thereof, which were overruled by the Court as
identified in numbers 1 through 4 above, the Court sustained in their entirety Texas
College's objections to the remaining excerpts from Plaintiffs' summary-judgment
evidence and response contained in Section D of the Court's order dated February 19,
2015.
It is further Ordered that Sections A, B, C and E of the Prior Order do not require any
ORDER ON DEFENDANT TEXAS COLLEGE'S MOTION FOR ENTRY OF ORDER CLARlFYlSG
EARLIER ORDER ON OBJECfJONSlMOTION TO STRIKE EVIDENCE AND REFERENCES
IN PLAINTIFFS' RES POSSE TO TEXAS COLLEGE'S MOTION FOR SUMMARY Jl1>GMENT PAGE 2 OF 3
APPENDIX 10
Pace 4178
clarification and are not addressed in this Order.
This Orderin no way changes the rulings memorialized in the Court's February 19,2015 Order
but is entered for purposes of clarification only.
IT IS SO ORDERED.
SIGNED this Q day of............... ....
Approved:
Is!Emesto Sigmon
Emesto Sigmon
BarNo. 24010397
Attorney for Plaintiffs
lsi Trey Yqrbrouih
Trey Yarbrough
BarNo. 22133.500
Attorney for Defendant TexasCollege
ORDER ON TEXAS COLLEGE'S MOTION rOR ENTRY OF ORDER CLARIFYING
EARLIER ORDER ON OBJECfIONst'lOTION TO STRIKE AND REFERENCES
IN PLAINTIFFS' TO TEXAS COLLEGE'S MOTION FOR St:MMARY JUDGMENT PAGE J OF J
APPENDIX 11
Pan.. .4170
APPENDIX 12
CAUSE NO. 13-33S3-A
lOIS lOAM B: 3S
GARRY L. ROLLINS AND § IN THE DISTRlc; I _ ,
CARLA D. ROLLINS, § '. \ , J
Plaintiffs, §
§
v. § SMITH COUNTY, TEXAS
§
TEXAS COLLEGE, CHRISTIAN §
METHODIST EPISCOPAL CHURCH §
AND MPF INVESTMENTS, LLC §
D/B/A "A-l RENT ALL", §
Defendant•. § 7TH DISTRICT COURT
ORDER DENYING PLAINTIFFS' MOTION TO RECONSIDER
THE COURT'S RULING ON DEFENDANT'S TRADITIONAL
AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
The Court has considered Plaintiffs' Motion to Reconsider the Court's Ruling on
Defendant's Traditional and No-Evidence Motion for Summary 1udgment, Defendant MPF
Investments, LLC's Response, and any related briefing. Having done so, the Court finds that the
motion should be in all things denied.
It is, therefore, Ordered that Plaintiffs' Motion to Reconsider the Court's Ruling on
Defendant's Traditional and Motion for Summary Judgment is denied.
,
Signed this J...Q:... day of is. /
OBDER DENYING PLAcsTIm' MOTION TO RECONSIDER
THE COURT'S RULING ON DEFENDANT'S TRADITIONAL
AND NO.EyIDENCE MOTION FOR SUMMAR)' SOLO PAGE
APPENDIX 13
Page 4180
APPENDIX 14
Electronically Filed
11/10/2014 7 0717 PM
Lois Rogers, Smith County District Clerk
Reviewed By Lana Fields
CAUSE N0.13-3363-A
GARRY L. ROLLINS and IN THE DISTRICT COURT
CARLA D. ROLLINS
Plaintiffs,
Vs. SMITH COUNTY, TEXAS
TEXAS COLLEGE;
CHRISTIAN METHODIST EPISCOPAL
CHURCH and
MPF INVESTMENTS, LLC D/B/A
"A-1 RENT ALL"
Defendants, 7th JUDICIAL DISTRICT
PLAINTIFFS' SIXTH AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THE COURT:
COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),
complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")
and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file
this Sixth Amended Original Petition:
DISCOVERY CONTROL PLAN LEVEL
1. Discovery is being conducted under Level 2 of the Discovery Control Plan
pursuant to Texas Rule of Civil Procedure 190.3.
PARTIES AND SERVICE
2. Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas
County, Texas.
PLAINTIFFS' SIXTH AMENDED PETITION
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 15
Page 83
3. Defendant TC is a Texas Nonprofit corporation with its principal office in Smith
County, Texas and has been served with process through its registered agent Dwight J.
Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered
in this matter through its attorney of record.
4. Defendant CME is a foreign nonprofit corporation organized under the laws of the
state of Tennessee and was served with process at its principal place of business at
4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181. CME has
answered in this matter through its attorney of record.
5. Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ') is a Texas limited
liability company with its principal office at 2505 S Southeast Loop 323 Tyler, Texas
75701. A-1 has answered in this matter through its attorney of record.
CLAIM FOR RELIEF
6. Plaintiffs seek monetary relief over $1,000,000. Tex.R.Civ.P. 47(c)(5).
VENUE
7. Smith County, Texas is a county of proper venue for this suit in accordance with
Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a
substantial part of the events or omissions giving rise to this cause of action occurred in
Smith County, Texas.
AGENCY
8. At all times material hereto, Defendants acted by and through actual, apparent,
ostensible, or by estoppel agents, acting within the course and scope of such agency.
FACTS
9. Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by
Texas College in the capacity of maintenance technician. Texas College itself operates
PLAINTIFFS' SIXTH AMENDED PETITION 2
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 16
Page 84
under the "supervision, care and ownership" of CME and has rented heavy equipment
"aerial work platforms" from A-1 on various occasions.
10. Rollins' formal work title was "Maintenance Technician". His office was in the TC
Physical Plant (the "Plant"). Rollins reported to Roland Brackens, the Plant
Superintendent, and to James Harris, Vice President of Business and Finance at TC.
Rollins also supervised a three to four person maintenance crew. Rollins' overall
responsibility at TC included general maintenance, light construction, driving detail and
essentially anything else the school required. He was hired to work at TC in 2008.
11. During September 2013, Rollins was asked by his supervisor to help move some
marble counter tops that were to be installed in the school's Science building. The
slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.
Rollins and one other worker to perform the task with no other assistance-man nor
machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and
suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins
sought emergency medical care because of the incident and was advised not to drive.
Rollins informed agents and employees of TC of his restriction and was subsequently
removed from a TC driving task that he had been performing on Tuesdays and
Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins
from the task.
12. A few weeks later, sometime during October 2013, the gymnasium ceiling at TC
needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for
Plaintiff Rollins and others to use while doing the repairs.
13. The Lift is capable of reaching upwards of approximately 20 feet from the ground
and is often accompanied by a safety harness to prevent worker injury. TC did not rent
PLAINTIFFS' SIXTH AMENDED PETITION 3
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 17
Page 85
or purchase a harness for use with the Lift, nor did it purchase or rent any other
personal protective equipment needed to ensure worker safety. Upon information and
belief, A-1 did not offer or suggest that TC purchase or rent personal protective
equipment for use with the Lift nor did it adequately confirm whether TC or its agents
were "qualified personnel" with the training and experience needed to safely operate the
Lift. Upon information and belief, A-1 did not familiarize Rollins with the Lift and its
operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens
did not check or confirm whether A-1 Rent All included an owner/operator manual with
the Lift as required by its manufacturer, JLG.
14. On or around October 22, 2013 TC directed Rollins and others to use the Lift "as
is" to make the repairs-minus training or supervision. After completing the work,
Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported
the incident to the TC human resources department as required. At the time, Rollins
assumed his fall had been relatively inconsequential as he was able to walk away
unassisted.
15. Three days later, on or around October 25, 2013, Rollins lost sensation in his
legs and toes and was subsequently admitted to Zale Lipshy University Hospital in
Dallas Texas where he underwent invasive neck surgery.
16. Rollins is now convalescing at home, unable to walk unassisted and requires
intensive at home physical therapy and care three times a week. He is no longer able
to perform many of the household tasks he once did to assist his wife Carla with the
maintenance and care of their home.
17. On or around December 6, 2013 Rollins received correspondence from TC
advising him that he would be terminated if he does not return to work within 3 months.
PLAINTIFFS' SIXTH AMENDED PETITION 4
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 18
Page 86
CAUSES OF ACTION
TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE
18. Texas College was Rollins' employer at the time of his avoidable injury and owed
him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's
Compensation and does not carry any sort of insurance for work related injury.
Defendant Texas College breached its duty of care to Rollins. Its breach includes and
is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)
furnish reasonably safe machinery or reasonably safe personal protective equipment for
use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate
help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins
while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff
Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions
by TC constitute negligence and gross negligence.
CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER
EGO, NEGLIGENCE AND GROSS NEGLIGENCE
19. During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented
to the public through documents on file with the Texas Secretary of State that TC
operates under the "supervision, care and ownership" of CME. CME has and continues
to represent to the general public that TC is one of its "affiliate" educational institutions,
of which there are several. CME makes extensive reference to TC throughout its
internal documentation and by-laws, and the role it plays in establishing TC policies and
procedures. CME also has a significant "financial relationship" with TC that has been
reported to the IRS.
PLAINTIFFS' SIXTH AMENDED PETITION 5
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 19
Page 87
20. TC acted as CM E's agent at all times relevant to the facts made the basis of this
lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein
and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.
21. Plaintiffs further allege that CME exercises a measure of control over TC so as to
qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.
22. CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in
performing services, whether gratuitously or for consideration that CME should
recognize as necessary for the protection of other persons or things.
23. CME breached its duties by failing to exercise reasonable care to secure Mr.
Rollins' safety while employed at TC and in doing so significantly increased his risk of
harm. This breach makes CME liable to Plaintiffs vicariously and directly. The
foregoing acts and omissions by CME constitute negligence and gross negligence.
MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT
ENTRUSTMENT AND GROSS NEGLIGENCE
24. MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
risk of injury to others as well as a duty to take affirmative action to avoid increasing the
danger from a condition created by its conduct. Defendant MPF breached its duty of
care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that
the Lift was being rented and used by competent and authorized persons; and to act
reasonably and prudently in all manners regarding its rental transaction with TC and the
steps it should have taken to prevent the readily foreseeable harm that the Lift could
cause subsequent users who were either unfit, untrained or incompetent to operate it.
PLAINTIFFS' SIXTH AMENDED PETITION 6
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 20
Page 88
The foregoing acts and omissions by MPF constitute negligence, negligent entrustment
and gross negligence.
DAMAGES TO PLAINTIFFS
25. Defendants' combined negligence has proximately caused damage to
Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which
Plaintiffs pray judgment.
26. As a direct and proximate result of the occurrence made the basis of this lawsuit,
Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum
jurisdictional limits of this Court. Such damages include, but are not limited to: physical
pain (past and future), physical impairment (past and future), medical expenses (past
and future), loss of earning capacity (past and future), disfigurement (present and
future), loss of income (past and future), emotional distress (past and future), and
mental anguish (past and future).
27. As a direct and proximate result of the occurrence made the basis of this lawsuit,
Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount
in excess of the minimum jurisdictional limits of this Court. Carla's special damages
include, but are not limited to: loss of consortium (past and future) and loss of
household services (past and future).
EXEMPLARY DAMAGES
28. Plaintiffs further allege that Defendants' acts and omissions, whether taken
singularly or in combination, were aggravated by the kind of malice and reckless
disregard for which the law allows the imposition of exemplary damages. TC's conduct
amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts
PLAINTIFFS' SIXTH AMENDED PETITION 7
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 21
Page 89
to gross negligence as by the laws of Texas. CME is either directly liable for exemplary
damages because of its conduct or liable because of its agent's acts. MPF's conduct
amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,
Plaintiffs seek such exemplary damages against each defendant named herein in an
amount that exceeds the minimum jurisdictional threshold of the Court.
JURY DEMAND
29. Plaintiffs request that a jury be convened to try the fact issues in this action. A
jury fee has been tendered and accepted by the Smith County District Clerk.
PRAYER
VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to
appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded
damages which are set forth above and which are in the sum in excess of the minimum
jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate
permitted by law, post-judgment interest from the date of judgment until paid at the
highest rate permitted by law, attorney fees, and for such other and further relief, both at
law or in equity, to which Plaintiffs may be justly entitled.
Respectfully submitted,
THE LAW OFFICES OF ERNESTO D. SIGMON
Isl Ernesto D. Sigmon
ERNESTO D. SIGMON
State Bar No. 24010397
5872 Old Jacksonville Highway Suite 624
Tyler, Texas 75703
2141395-1546 (Telephone)
9031944-7496 (Facsimile)
ATTORNEY FOR PLAINTIFFS
PLAINTIFFS' SIXTH AMENDED PETITION 8
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 22
Page 90
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
has been served on all counsel of record on the 11th day of November 2014 as follows:
VIA EMAIL
Mr. Trey Yarbrough
Yarbrough Wilcox, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
FAX: 903.595.0191
ATTORNEYS FOR DEFENDANT
TEXAS COLLEGE
VIA EMAIL
Wesson H. Tribble
Dan McManus
Tribble, Ross & Wagner
3355 West Alabama Street, Suite 1200
Houston, Texas 77098
ATTORNEYS FOR DEFENDANT
CHRISTIAN METHODIST EPISCOPAL CHURCH
VIA EMAIL
Ryan K. Geddie
Martin, Disiere, Jefferson & Wisdom, LLP
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas I 75248
Phone: (214) 420-5500 I Fax: (214) 420-5501
ATTORNEYS FOR DEFENDANT
MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"
Isl Ernesto D. Sigmon
Ernesto D. Sigmon
PLAINTIFFS' SIXTH AMENDED PETITION 9
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
APPENDIX 23
Page 91
Electronically Filed
1212/2014 4 08 24 PM
Lois Rogers, Smith County District Clerk
Reviewed By Lana Fields
CAUSE N0.13-3363-A
GARRY L. ROLLINS and IN THE DISTRICT COURT
CARLA D. ROLLINS
Plaintiffs,
Vs. SMITH COUNTY, TEXAS
TEXAS COLLEGE;
CHRISTIAN METHODIST EPISCOPAL
CHURCH and
MPF INVESTMENTS, LLC D/B/A
"A-1 RENT ALL"
Defendants, 7th JUDICIAL DISTRICT
PLAINTIFFS' SEVENTH AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THE COURT:
COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),
complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")
and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file
this Seventh Amended Original Petition:
DISCOVERY CONTROL PLAN LEVEL
1. Discovery is being conducted under Level 2 of the Discovery Control Plan
pursuant to Texas Rule of Civil Procedure 190.3.
PARTIES AND SERVICE
2. Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas
County, Texas.
PLAINTIFFS' SEVENTH AMENDED PETITION
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 24
Page 92
3. Defendant TC is a Texas Nonprofit corporation with its principal office in Smith
County, Texas and has been served with process through its registered agent Dwight J.
Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered
in this matter through its attorney of record.
4. Defendant CME is a foreign nonprofit corporation organized under the laws of the
state of Tennessee and was served with process at its principal place of business at
4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181. CME has
answered in this matter through its attorney of record.
5. Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas
limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,
Texas 75701. A-1 has answered in this matter through its attorney of record.
CLAIM FOR RELIEF
6. Plaintiffs seek monetary relief in an amount over $1,000,000 but not to exceed
$25,000,000. Plaintiffs also demand judgment for all other relief to which they may be
entitled as a result of the harms and losses made the basis of this lawsuit. See
Tex.R.Civ.P. 47(d).
VENUE
7. Smith County, Texas is a county of proper venue for this suit in accordance with
Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a
substantial part of the events or omissions giving rise to this cause of action occurred in
Smith County, Texas.
AGENCY
8. At all times material hereto, Defendants acted by and through actual, apparent,
ostensible, or by estoppel agents, acting within the course and scope of such agency.
PLAINTIFFS' SEVENTH AMENDED PETITION 2
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 25
Page 93
FACTS
9. Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by
Texas College in the capacity of maintenance technician. Texas College itself operates
under the "supervision, care and ownership" of CME and has rented heavy equipment
"aerial work platforms" from A-1 on various occasions.
10. Rollins' formal work title was "Maintenance Technician". His office was in the TC
Physical Plant (the "Plant"). Rollins reported to Roland Brackens, the Plant
Superintendent, and to James Harris, Vice President of Business and Finance at TC.
Rollins also supervised a three to four person maintenance crew. Rollins' overall
responsibility at TC included general maintenance, light construction, driving detail and
essentially anything else the school required. He was hired to work at TC in 2008.
11. During September 2013, Rollins was asked by his supervisor to help move some
marble counter tops that were to be installed in the school's Science building. The
slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.
Rollins and one other worker to perform the task with no other assistance-man nor
machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and
suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins
sought emergency medical care because of the incident and was advised not to drive.
Rollins informed agents and employees of TC of his restriction and was subsequently
removed from a TC driving task that he had been performing on Tuesdays and
Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins
from the task.
PLAINTIFFS' SEVENTH AMENDED PETITION 3
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 26
Page 94
12. A few weeks later, sometime during October 2013, the gymnasium ceiling at TC
needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for
Plaintiff Rollins and others to use while doing the repairs.
13. The Lift is capable of reaching upwards of approximately 20 feet from the ground
and is often accompanied by a safety harness to prevent worker injury. TC did not rent
or purchase a harness for use with the Lift, nor did it purchase or rent any other
personal protective equipment needed to ensure worker safety. Upon information and
belief, A-1 did not offer or suggest that TC purchase or rent personal protective
equipment for use with the Lift nor did it adequately confirm whether TC or its agents
were "qualified personnel" with the training and experience needed to safely operate the
Lift. Upon information and belief, A-1 did not familiarize Rollins with the Lift and its
operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens
did not check or confirm whether A-1 Rent All included an owner/operator manual with
the Lift as required by its manufacturer, JLG.
14. On or around October 22, 2013 TC directed Rollins and others to use the Lift "as
is" to make the repairs-minus training or supervision. After completing the work,
Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported
the incident to the TC human resources department as required. At the time, Rollins
assumed his fall had been relatively inconsequential as he was able to walk away
unassisted.
15. Three days later, on or around October 25, 2013, Rollins lost sensation in his
legs and toes and was subsequently admitted to Zale Lipshy University Hospital in
Dallas Texas where he underwent invasive neck surgery.
PLAINTIFFS' SEVENTH AMENDED PETITION 4
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 27
Page 95
16. Rollins is now convalescing at home, unable to walk unassisted and requires
intensive at home physical therapy and care three times a week. He is no longer able
to perform many of the household tasks he once did to assist his wife Carla with the
maintenance and care of their home.
17. On or around December 6, 2013 Rollins received correspondence from TC
advising him that he would be terminated if he does not return to work within 3 months.
CAUSES OF ACTION
TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE
18. Texas College was Rollins' employer at the time of his avoidable injury and owed
him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's
Compensation and does not carry any sort of insurance for work related injury.
Defendant Texas College breached its duty of care to Rollins. Its breach includes and
is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)
furnish reasonably safe machinery or reasonably safe personal protective equipment for
use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate
help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins
while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff
Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions
by TC constitute negligence and gross negligence.
CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER
EGO, NEGLIGENCE AND GROSS NEGLIGENCE
19. During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented
to the public through documents on file with the Texas Secretary of State that TC
operates under the "supervision, care and ownership" of CME. CME has and continues
PLAINTIFFS' SEVENTH AMENDED PETITION 5
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 28
Page 96
to represent to the general public that TC is one of its "affiliate" educational institutions,
of which there are several. CME makes extensive reference to TC throughout its
internal documentation and by-laws, and the role it plays in establishing TC policies and
procedures. CME also has a significant "financial relationship" with TC that has been
reported to the IRS.
20. TC acted as CM E's agent at all times relevant to the facts made the basis of this
lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein
and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.
21. Plaintiffs further allege that CME exercises a measure of control over TC so as to
qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.
CME has engaged in financial transactions pledging and leveraging Texas College
assets; and controls the school through an elected body of officials composed
predominately of CME officers and bishops acting on behalf of the CME-retaining for
itself the power to merge, consolidate, convey, or terminate Texas College as it deems
fit. The official bylaws of Texas College mandate that upon dissolution, the school's
assets will revert back to CME. The elected body of officials (referenced supra) acts
through various "committees", one of which established policies and procedures at the
Texas College physical plant where Garry Rollins was employed for several years.
These policies and procedures impacted employee training and employee safety at
Texas College.
22. CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in
performing services, whether gratuitously or for consideration that CME should
recognize as necessary for the protection of other persons or things.
PLAINTIFFS' SEVENTH AMENDED PETITION 6
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 29
Page 97
23. CME breached its duties by failing to exercise reasonable care to secure Mr.
Rollins' safety while employed at TC and in doing so significantly increased his risk of
harm. This breach makes CME liable to Plaintiffs vicariously and directly. The
foregoing acts and omissions by CME constitute negligence and gross negligence.
MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT
ENTRUSTMENT AND GROSS NEGLIGENCE
24. MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
risk of injury to others as well as a duty to take affirmative action to avoid increasing the
danger from a condition created by its conduct. Defendant MPF breached its duty of
care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that
the Lift was being rented and used by competent and authorized persons; and to act
reasonably and prudently in all manners regarding its rental transaction with TC and the
steps it should have taken to prevent the readily foreseeable harm that the Lift could
cause subsequent users who were either unfit, untrained or incompetent to operate it.
The foregoing acts and omissions by MPF constitute negligence, negligent entrustment
and gross negligence.
DAMAGES TO PLAINTIFFS
25. Defendants' combined negligence has proximately caused damage to
Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which
Plaintiffs pray judgment.
26. As a direct and proximate result of the occurrence made the basis of this lawsuit,
Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum
jurisdictional limits of this Court. Such damages include, but are not limited to: physical
pain (past and future), physical impairment (past and future), medical expenses (past
PLAINTIFFS' SEVENTH AMENDED PETITION 7
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 30
Page 98
and future), loss of earning capacity (past and future), disfigurement (present and
future), loss of income (past and future), emotional distress (past and future), and
mental anguish (past and future).
27. As a direct and proximate result of the occurrence made the basis of this lawsuit,
Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount
in excess of the minimum jurisdictional limits of this Court. Carla's special damages
include, but are not limited to: loss of consortium (past and future) and loss of
household services (past and future).
EXEMPLARY DAMAGES 1
28. Plaintiffs further allege that Defendants' acts and omissions, whether taken
singularly or in combination, were aggravated by the kind of malice and reckless
disregard for which the law allows the imposition of exemplary damages. TC's conduct
amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts
to gross negligence as by the laws of Texas. CME is either directly liable for exemplary
damages because of its conduct or liable because of its agent's acts. MPF's conduct
amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,
Plaintiffs seek such exemplary damages against each defendant named herein in an
amount that exceeds the minimum jurisdictional threshold of the Court.
1
Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs'
Seventh Amended Petition). See Al Parker Buzek Co. v. Touchy, 788 S.W.2d 129, 130 (Tex.App.-Houston [1 11
Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 344 S.W.2d 228, 231 (TexApp.-Houston 1961, no
writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The
proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for
exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable
for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of
exemplary damages assessed against each defendant. See Fazrfield Ins. V. Stephens Martzn Pavzng, LP, 246 S.W.3d
653, 667 (Tex. 2008). :\owhere in CME's Special Exceptions to P's Sixth Amended Petition does it state legal
authority supporting its objection to the manner in which Plaintiffs' have specially pied for exemplary damages.
PLAINTIFFS' SEVENTH AMENDED PETITION 8
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 31
Page 99
JURY DEMAND
29. Plaintiffs request that a jury be convened to try the fact issues in this action. A
jury fee has been tendered and accepted by the Smith County District Clerk.
PRAYER
VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to
appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded
damages which are set forth above and which are in the sum in excess of the minimum
jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate
permitted by law, post-judgment interest from the date of judgment until paid at the
highest rate permitted by law, attorney fees, and for such other and further relief, both at
law or in equity, to which Plaintiffs may be justly entitled.
Respectfully submitted,
THE LAW OFFICES OF ERNESTO D. SIGMON
Isl Ernesto D. Sigmon
ERNESTO D. SIGMON
State Bar No. 24010397
5872 Old Jacksonville Highway Suite 624
Tyler, Texas 75703
2141395-1546 (Telephone)
9031944-7496 (Facsimile)
ATTORNEY FOR PLAINTIFFS
PLAINTIFFS' SEVENTH AMENDED PETITION 9
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 32
Page 100
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
has been served on all counsel of record on the 2nd day of December 2014 as follows:
VIA EMAIL
Mr. Trey Yarbrough
Yarbrough Wilcox, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
FAX: 903.595.0191
ATTORNEYS FOR DEFENDANT
TEXAS COLLEGE
VIA EMAIL
Wesson H. Tribble
Dan McManus
Tribble, Ross & Wagner
3355 West Alabama Street, Suite 1200
Houston, Texas 77098
ATTORNEYS FOR DEFENDANT
CHRISTIAN METHODIST EPISCOPAL CHURCH
VIA EMAIL
Ryan K. Geddie
Martin, Disiere, Jefferson & Wisdom, LLP
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas I 75248
Phone: (214) 420-5500 I Fax: (214) 420-5501
ATTORNEYS FOR DEFENDANT
MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"
Isl Ernesto D. Sigmon
Ernesto D. Sigmon
PLAINTIFFS' SEVENTH AMENDED PETITION 10
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx
APPENDIX 33
Page 101
Electronically Filed
1/19/201510 03 49 AM
Lois Rogers, Smith County District Clerk
Reviewed By Lana Fields
CAUSE N0.13-3363-A
GARRY L. ROLLINS and IN THE DISTRICT COURT
CARLA D. ROLLINS
Plaintiffs,
Vs. SMITH COUNTY, TEXAS
TEXAS COLLEGE and
MPF INVESTMENTS, LLC D/B/A
"A-1 RENT ALL"
Defendants, 7th JUDICIAL DISTRICT
PLAINTIFFS' EIGHTH AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF THE COURT:
COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),
complaining of Texas College ("TC") and MPF Investments, LLC d/b/a A-1 Rent All ("A-
1") (collectively "Defendants") and file this Eighth Amended Original Petition:
DISCOVERY CONTROL PLAN LEVEL
1. Discovery is being conducted under Level 2 of the Discovery Control Plan
pursuant to Texas Rule of Civil Procedure 190.3.
PARTIES AND SERVICE
2. Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas
County, Texas.
3. Defendant TC is a Texas Nonprofit corporation with its principal office in Smith
County, Texas and has been served with process through its registered agent Dwight J.
PLAINTIFFS' EIGHTH AMENDED PETITION
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 34
Page 498
Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered
in this matter through its attorney of record.
4. Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas
limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,
Texas 75701. A-1 has answered in this matter through its attorney of record.
CLAIM FOR RELIEF
5. Plaintiffs seek monetary relief in an amount over $1,000,000. Plaintiffs also
demand judgment for all other relief to which they may be entitled as a result of the
harms and losses made the basis of this lawsuit. See Tex.R.Civ.P. 47(d).
VENUE
6. Smith County, Texas is a county of proper venue for this suit in accordance with
Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a
substantial part of the events or omissions giving rise to this cause of action occurred in
Smith County, Texas.
AGENCY
7. At all times material hereto, Defendants acted by and through actual, apparent,
ostensible, or by estoppel agents, acting within the course and scope of such agency.
FACTS
8. Garry L. Rollins (hereinafter "Rollins") is a maintenance worker employed by
Texas College in the capacity of maintenance technician. Texas College has rented
heavy equipment "aerial work platforms" from A-1 on various occasions.
9. Rollins' formal work title was "Maintenance Technician". His office was in the TC
Physical Plant (the "Plant"). Rollins reported to Roland Brackens, the Plant
Superintendent, and to James Harris, Vice President of Business and Finance at TC.
PLAINTIFFS' EIGHTH AMENDED PETITION 2
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 35
Page 499
Rollins also supervised a three to four person maintenance crew. Rollins' overall
responsibility at TC included general maintenance, light construction, driving detail and
essentially anything else the school required. He was hired to work at TC in 2008.
10. During September 2013, Rollins was asked by his supervisor to help move some
marble counter tops that were to be installed in the school's Science building. The
slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.
Rollins and one other worker to perform the task with no other assistance-man nor
machine. VVhile moving the slab, Mr. Rollins sneezed/coughed, dropped the object and
suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins
sought emergency medical care because of the incident and was advised not to drive.
Rollins informed agents and employees of TC of his restriction and was subsequently
removed from a TC driving task that he had been performing on Tuesdays and
Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins
from the task.
11. A few weeks later, sometime during October 2013, the gymnasium ceiling at TC
needed repair. TC rented a hydraulic "scissor lift" (the "Lift') from defendant A-1 for
Plaintiff Rollins and others to use while doing the repairs.
12. The Lift is capable of reaching upwards of approximately 20 feet from the ground
and is often accompanied by a safety harness to prevent worker injury. TC did not rent
or purchase a harness for use with the Lift, nor did it purchase or rent any other
personal protective equipment needed to ensure worker safety. A-1 did not offer or
suggest that TC purchase or rent personal protective equipment for use with the Lift nor
did it adequately confirm whether TC or its agents were "qualified personnel" with the
training and experience needed to safely operate the Lift. A-1 did not familiarize Rollins
PLAINTIFFS' EIGHTH AMENDED PETITION 3
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 36
Page 500
with the Lift and its operation nor did it offer to train Rollins. A-1 Rent All did not include
an owner/operator manual with the Lift as required by the manufacturer, JLG.
13. On or around October 22, 2013 TC directed Rollins and others to use the Lift "as
is" to make the repairs-minus training or supervision. After completing the work,
Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported
the incident to the TC human resources department as required. TC did not formally
investigate the incident nor did it report Mr. Rollins' workplace fall to OSHA. At the
time, Rollins assumed his fall had been relatively inconsequential as he was able to
walk away unassisted.
14. Three days later, on or around October 25, 2013, Rollins lost sensation in his
legs and toes and was subsequently admitted to Zale Lipshy University Hospital in
Dallas Texas where he underwent invasive neck surgery.
15. Rollins is now convalescing at home, unable to walk unassisted and requires
intensive at home physical therapy and care three times a week. He is no longer able
to perform many of the household tasks he once did to assist his wife Carla with the
maintenance and care of their home.
16. On or around December 6, 2013 Rollins received correspondence from TC
advising him that he would be terminated if he does not return to work within 3 months.
CAUSES OF ACTION
TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE
17. Texas College was Rollins' employer at the time of his avoidable injury and owed
him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's
Compensation and does not carry any sort of insurance for work related injury.
Defendant Texas College breached its duty of care to Rollins. Its breach includes and
PLAINTIFFS' EIGHTH AMENDED PETITION 4
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 37
Page 501
is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)
furnish reasonably safe machinery or reasonably safe personal protective equipment for
use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate
help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins
while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff
Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions
by TC are violations of the Texas Labor Code (Chapter 411 et. seq.), the common laws
of Texas, and various other rules and regulations pertaining to worker safety. As such,
TC's conduct with respect to Garry Rollins constitutes negligence and gross negligence.
MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE AND GROSS
NEGLIGENCE
18. MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
risk of injury to others as well as a duty to take affirmative action to avoid increasing the
danger from a condition created by its conduct. Defendant MPF breached its duty of
care to Plaintiffs. MPF's breach includes and is not limited to its failure to: 1) ensure that
the Lift was being rented and used by competent and authorized persons; 2) deliver the
Lift in "fit for service" condition prior to use; 3) offer training or familiarization with the
Lift; and 4) to act as a reasonable and prudent renter of heavy machinery under the
circumstances in all manners pertaining to the transaction with TC and the steps it
should have taken to prevent the readily foreseeable harm that could result from unfit,
untrained or incompetent operators using the Lift. The foregoing acts and omissions by
MPF constitute negligence and gross negligence.
PLAINTIFFS' EIGHTH AMENDED PETITION 5
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 38
Page 502
DAMAGES TO PLAINTIFFS
19. Defendants' combined negligence has proximately caused damage to
Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which
Plaintiffs pray judgment.
20. As a direct and proximate result of the occurrence made the basis of this lawsuit,
Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum
jurisdictional limits of this Court. Such damages include, but are not limited to: physical
pain (past and future), physical impairment (past and future), medical expenses (past
and future), loss of earning capacity (past and future), disfigurement (present and
future), loss of income (past and future), emotional distress (past and future), and
mental anguish (past and future).
21. As a direct and proximate result of the occurrence made the basis of this lawsuit,
Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount
in excess of the minimum jurisdictional limits of this Court. Carla's special damages
include, but are not limited to: loss of consortium (past and future) and loss of
household services (past and future).
EXEMPLARY DAMAGES 1
22. Plaintiffs further allege that Defendants' acts and omissions, whether taken
singularly or in combination, were aggravated by the kind of malice and reckless
1
Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs'
Eighth Amended Petition). See Al Parker Buzek Co. v. Touchy, 788 S.W.2d 129, 130 (Tex.App.-Houston [1 11
Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 344 S.W.2d 228, 231 (TexApp.-Houston 1961, no
writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The
proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for
exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable
for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of
exemplary damages assessed against each defendant. See Fazrfield Ins. V Stephens Martzn Pavzng, LP, 246 S.W.3d
653,667(Tex.2008}
PLAINTIFFS' EIGHTH AMENDED PETITION 6
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 39
Page 503
disregard for which the law allows the imposition of exemplary damages. TC's conduct
amounts to gross negligence as defined by the laws of Texas. MPF's conduct amounts
to gross negligence as defined by the laws of Texas. In light of the foregoing, Plaintiffs
seek such exemplary damages against each defendant named herein in an amount that
exceeds the minimum jurisdictional threshold of the Court.
JURY DEMAND
23. Plaintiffs request that a jury be convened to try the fact issues in this action. A
jury fee has been tendered and accepted by the Smith County District Clerk.
PRAYER
VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to
appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded
damages which are set forth above and which are in the sum in excess of the minimum
jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate
permitted by law, post-judgment interest from the date of judgment until paid at the
highest rate permitted by law, attorney fees, and for such other and further relief, both at
law or in equity, to which Plaintiffs may be justly entitled.
Respectfully submitted,
THE LAW OFFICES OF ERNESTO D. SIGMON
Isl Ernesto D. Sigmon
ERNESTO D. SIGMON
State Bar No. 24010397
416 West Saulnier Street
Houston, Texas 77019
2141395-1546 (Telephone)
7131485-6056 (Facsimile)
ATTORNEY FOR PLAINTIFFS
PLAINTIFFS' EIGHTH AMENDED PETITION 7
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 40
Page 504
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
has been served on all counsel of record on the 19th day of January 2015 as follows:
VIA EMAIL
Mr. Trey Yarbrough
Yarbrough Wilcox, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
FAX: 903.595.0191
ATTORNEYS FOR DEFENDANT
TEXAS COLLEGE
VIA EMAIL
Ryan K. Geddie
Martin, Disiere, Jefferson & Wisdom, LLP
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
Phone: (214) 420-5500 I Fax: (214) 420-5501
ATTORNEYS FOR DEFENDANT
MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"
Isl Ernesto D. Sigmon
Ernesto D. Sigmon
PLAINTIFFS' EIGHTH AMENDED PETITION 8
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx
APPENDIX 41
Page 505
APPENDIX 42
APPENDIX 43
APPENDIX 44
APPENDIX 45
APPENDIX 46
STATE OF TEXAS §
DALLAS COUNTY §
Before me, the undersigned notary, on this day personally appeared Garry L. Rollinl, the affiant, whose
identity is known to me. After I administered an oath, affiant testified as follows:
1. "My name is Garry L. Rollins. r am over 18 years of age, of sound mind, and capable of making this
affidavit. The entire facts stated in this affidavit are within my personal knowledge and personal
experience and are true and correct."
2. "I gave sworn testimony in this case at my deposition on July 7. 2014. I am a former employee of
Texas Colleae in Tyler, Texas. I worked at Texas College as a Maintenance Tech and Supervisor for
about six years. I was injured on the job at Texas College on two occasions: During early September
2013 and on October 22, 2013. Roland Brackens was my immediate supervisor during the times I was
injured at Texas College. '-Ii B:aellCiIS I "79. sm;s,) k) 'i' naml sf NUIR ti ' dC's cenMA*
. lilt ft JOlA W,lhS:. . . . g••• lsem' rempEI) dfel liOik fe, TillIS Co"'g' wh ll • b, 'II'? glng
emplbjed dieta IS SUpe.h.wads"lUfdie Ph;sl"l PlBiitsiU: AwsSh it illa'u ti.1I1 011'. E'Bili 'of
It••''S2 POIl8j4 M' g. ok.,.; 'tr"lh RWtp, nn,s,'si ts I" d habU. fi.n 'k. 17k n" c
!I iallEge slab ecs'Ls: top. 'It ,I. 8uichCO BaUdl", but AD WiSdwcsst\t1 Sid did j' I'· the
111= bue of diC pilU lit oew qUlLIS: As arid Ie, 'hs nrd'llJ2S' , U•• 'ill" l'b .1. d
MS' i t atlo:: MCiillE tfdYMted wah 1.11. Blwlsms 11 It 'h' "'ork bed nm 'xc 2?p"'wd. On the
day I got hurt, Mr. Brackens instructed me and another employee to move the counter tops. I informed
Mr. Brackens that these counters were pure marble and extremely heavy sd. af whom It. .
kncwJ'di' gf'R,J' b'esko"ts spd rediae' biS?Ii'. The only reason I got on the lift is because I was told
APPENDIX 50
Page 4134
to do so and was made to feel as though my job depended on it. I didn't want to do it. If Mr.
Brackens had looked at the owner's manual and informed me that a person with blackouts shouldn't
be on a lif\, I would not have gotten on. Mr. Brackens however did not do this. He did not look at a
safety manual, and if he did, he certainly did not inform or warn me that a person in my condition
shouldn't be on a scissor lift. Th,l' III'S n"I.., i....", at 'k., ",11'8 •• I .d ,Rn.'ll'
.1111111 Widl WIiCit ascii rr In P'S!'" 'nw, u ' Id te db "OIl dtit lie was dUL alt:wd te ••• ni I" burt.
"'lit emple) .. liZ 1&1 It ad. I had never had any problems at Texas College in terms of my work
and performance evaluations and only began Iulvlng some difficulty when Mr. Brackens became
Superintendent of the Physical Plant. Even then my work evaluations ranked me as eitheroutstanding
or very good."
Sworn to and subscribed before me by Garry Rolli•• 0
APPENDIX 51
Page 4135
APPENDIX 52
APPENDIX 53
AFFIDAVIT
STATE OF TEXAS §
DALLAS COUNTY §
Before me, the undersigned notary, on this day personally appeared SAMUEL L.
BARNETT, the affiant, whose identity is known to me. After I administered an oath, affiant
testified as follows:
1. "My name is Samuel L. Barnett. I am over 18 years of age, of sound mind, and capable
of making this affidavit. The facts stated in this affidavit are within my personal knowledge
and are true and correct."
2. "As an introduction, I am a neurological surgeon and associate professor in the
Department of Neurological Surgery at The University of Texas Southwestern Medical Center
at Dallas. My undergraduate training was done at Indiana University, Bloomington (1991-
1995). I received my medical degree from the University of Cincinnati College of Medicine
(1995-1999). My surgical internship was done at the University of Texas Southwestern
Medical Center (1999-2000). I completed a neurosurgical residency at the University of Texas
Southwestern Medical Center (2000-2005). I received fellowship training in skull base and
cerebrovascular neurosurgery at the University of South Florida, Tampa (2005-2006). I was a
faculty member at the University of Mississippi School of Medicine for one year (2006-2007)
prior to returning to Dallas. Since that time, I have been a faculty member in the Department
of Neurological Surgery at The University of Texas Southwestern Medical Center (2007-
Present). I am a member of the hospital staffs at Zale Lipshy University Hospital, Parkland
Memorial Hospital and the Dallas VA Medical Center. I am board certified by the American
Board of Neurological Surgery and I am licensed to practice medicine in Texas and
Mississippi. In my current practice, I regularly evaluate and manage patients with traumatic
and degenerative spinal conditions."
3. "I have completed my review of Garry Rollins' medical records. Items reviewed
include Emergency Room records dated 10/25/2013, inpatient medical records from
10/26/2013 - 11111/2013 and 11115/2013 - 11/20/2013 and an MRI scan of the cervical spine
dated 10/25/2013. I personally saw and evaluated Mr. Rollins' on 11115/2013, 11/25/2013,
12/3/2013, 12/16/2013, 12/30/2013, 1/13/2014, 2/17/2014, 3/17/2014, 5/19/2014 and
6/23/2014 and I have reviewed those records as well."
4. "In briefly summarizing Mr. Rollins' medical records, Mr. Rollins has a history of
sarcoidosis, asthma, syncopal episodes and a previous C5-C7 anterior cervical fusion. Mr.
Rollins was involved in a fall at work on October 22, 2013. Mr. Rollins was getting off of a
lift, fell backwards and hit the back of his head. Over the next several days, he began having
progressive problems with ambulation. In addition, he had significant neck pain. These
complaints, as well as a syncopal episode, ultimately prompted a visit to the emergency
department at St. Paul Hospital on 10/25/2013. His evaluation included an MRI of the cervical
spine which was performed on the same day. I have reviewed this MRI scan that demonstrates
multi-level degenerative changes, evidence of prior fusion from CS-C1 and severe spinal
APPENDIX 54
Page 4048
at C4-5. There is some ussoci:ited abnom1al signal within the spinal cord at this level
cvn.sistent with a spinal wrd contusion. Bll$ecl on these tinclings, Mr. Rollills was transterrcd
to Znlc-Lipshy University l·fospitul l\1rthcr cure."
5. ''On my initinl I found that he had full strength in his upper extremities and
i.lightly diminished strength in his bilutera l lower extremities. He had i11
biceps, triceps, patellar 1md Achilk's rellcxes bilaterally. A lfoffman's sign was
bilaterally. Mr. Rollins hud decreased scnsotion to light touch. pinprick, pai11 nnd
p1oprioccp1km in his k1wcr extremities a11le slab counter tops in the Science Building Hearsay
but was unsuccessful and did not get the work
because of the price he was quoting. As a
result, the worlc went undone for a time. The
school administration became frustrated with
Mr. Brackens that the work had not been
completed.
Obiectionable Reference in Resnonse Pae:e Reference
In fact, Mr. Rollins confirms that the actual job Pg. 13
of moving the mari>le was originally meant to
be outsourced, hence Mr. Brackens' effort to
win the work contract through his side business,
"RBHR".
The foregoing statements in paragraph 2 should be disregarded by the Court as irrelevant
to this litigation. They do not establish or make more/less probable the elements Plaintiffs are
required to prove for their allegations against Texas College, as this portion does not make it
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE6OF19
APPENDIX 69
Page 3671
more/less probable that Texas College owed a duty to Plaintiffs, that Texas College breached an
alleged duty owed to Plaintiffs, or that any breach of an alleged duty Texas College owed to
Plaintiffs was the producing/proximate cause of Plaintiffs' injuries. Therefore, the foregoing
statements and references should be disregarded by the Court and stricken as completely
irrelevant.
The foregoing statements in paragraph 2 of Rollins' affidavit, and the reference in
Plaintiffs' response, should also be stricken and disregarded by the Court because Rollins has
wholly failed to show how he has personal knowledge to testify to same. They are inadmissible
hearsay. Rollins simply states them in a conclusory manner. Therefore, Texas College objects
to said statements and moves the Court to strike and disregard them.
Lack of Personal Knowledge, competency,
s eculative
This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because Mr. Rollins lacks personal knowledge or competency to testify
to the matters contained therein. Mr. Rollins has in no way demonstrated any knowledge or
competency to testify on the weight of the marble slab, much less that it weighs "at least 150
lbs." Rollins' statement constitutes pure speculation. Texas College objects to same and moves
the Court to disregard and strike it.
The medical excuses attached to my affidavit as No Predicate
"Exhibit A" are the excuses that I received Hearsay
personally from my doctors and that I gave to
Texas College.
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 70F 19
APPENDIX 70
Page 3672
The generic "medical excuses" Mr. Rollins' references in his affidavit and attached as
Exhibit A are hearsay for which no exception applies and for which no proper predicate has been
laid. Furthermore, said documents provide no reason for the medical visit nor recite any
restriction, and are in no way probative of Plaintiffs' claims. Texas College objects to same and
moves that the Court disregard and strike them.
We were not trained or instructed on proper Lack of Personal Knowledge
lifting techniques or given any direction for
performing a safe lift of the size.
Rollins has not established in any way that he has personal knowledge as to what training
or instruction other employees of Texas College had received. Without elaborating on how this
alleged knowledge was acquired, there is insufficient information in the affidavit to establish that
Mr. Rollins knew what type of training other Texas College employees received, what
instructions on proper lifting techniques other Texas College employees received, or what
directions were provided to other Texas College employees. Therefore, Texas College's
objection for this portion of Mr. Rollins' affidavit should be sustained, these portions should be
stricken, and these portions should not considered by the Court.
Not Qualified as Expert
Hearsay
This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because Mr. Rollins is not qualified to testify to said matters and the
information is hearsay. This is made clear by his reference to the defective exhibit which does
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGES OF 19
APPENDIX 71
Page 3673
not diagnose or even recite "experiencing blackouts." Mr. Rollins is not competent to testify as
to his medical diagnosis, as he is neither a doctor nor designated as an expert in medicine.
Therefore, Texas College's objection to this inadmissible embellishment and misstatement in
Rollins' affidavit should be sustained, and this portion stricken and not considered by the Court.
"I was also instructed by the doctor to avoid Hearsay
driving. The doctor's note and record attached
to my affidavit as Exhibit B was the note that I
received from the doctor at Baylor."
This portion within paragraph 2 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because the information is hearsay. Any purported statements made by
"the doctor" to Mr. Rollins would be hearsay to which no exception applies. Furthermore, the
doctor's note and records attached to Mr. Rollins' affidavit as Exhibit Bare hearsay for which no
exception applies. Mr. Rollins' sole purpose for including such records is to prove the truth of
the matter asserted by Mr. Rollins. Therefore, Texas College's objection for this portion of Mr.
Rollins' affidavit and the exhibit referenced should be sustained, this portion and exhibit should
be stricken, and this portion and the exhibit referenced disregarded by the Court.
"Mr. Harris and Mr. Brackens removed me from Lack of Personal Knowledge
the driving job because they didn't want to Hearsay
endanger students if I was to blackout while
behind the wheel."
Mr. Rollins informed Texas College of these Pg. 2
infirmities and was later removed from driving
Texas College students to and from campus as a
safety precaution.
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 9OF19
APPENDIX 72
Page 3674
"prompting the school to remove him from a Page 19
driving detail he performed."
This portion within Section 2 of Mr. Rollins' affidavit, and the references in Plaintiffs'
response, should be stricken and not considered by the Court because Mr. Rollins lacks personal
knowledge to testify to the matters contained therein. Mr. Rollins has not established in any way
that he has personal knowledge as to why he was removed from the driving job. To the contrary,
Mr. Rollins is merely advancing speculative self-serving "reasons" and stands in direct
contradiction to the testimony of a Texas College employee who testified as to the actual reason
and who has been shown to have knowledge. Texas College moves the Court to disregard and
strike this portion of Mr. Rollins' affidavit and the references in Plaintiffs' response.
Under Mr. Brackens authority at Texas College Lack of Personal Knowledge
there was never an emphasis on safety or Hearsay
training for any of the worlc we were assigned. Conclusocy
While under his supervision and leadership at
Texas College, none of the employees were ever
sent to any kind of safety training sessions or
OSHA workshops. This kind of thing made me
and other employees question the school's
attitude toward our safe .
This portion within Section 3 of Mr. Rollins' affidavit should be stricken and not
considered by the Court. Mr. Rollins has not established that he has personal knowledge as to
what type of training sessions or worlcshops other employees were sent to nor the attitude or
feelings of other employees toward Texas College. Rollins offers nothing in his affidavit to
establish any personal knowledge as to what other employees informed him, that they did not
receive training, that they did not attend any workshops, or how he acquired the other
employees' beliefs in regard to the school's attitude toward safety. Without providing such
information, Mr. Rollins has failed to establish that he has the requisite personal knowledge
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE lOOF 19
APPENDIX 73
Page 3675
required to be considered competent to testify to such matters and is merely advancing self-
seiving speculation on the training received and beliefs of other employees. Therefore, Texas
College's objection for this portion of Mr. Rollins' affidavit should be sustained, this portion
should be stricken, and this portion should not considered by the Court.
Lack of Personal Knowledge
This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because Mr. Rollins lacks personal knowledge to testify to the matters
contained therein. Mr. Rollins has not established in any way that he has personal knowledge as
to what type of training other employees received and this conclusoiy statement is in direct
conflict with the testimony of Michael Johnson and Steve Barron, two employees of the College
who testified that they were trained to operate a scissor lift. Barron has testified that he was
trained by Rollins. Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit
should be sustained, and this portion should be stricken, and disregarded by the Court.
I "Sham" affidavit
After coming down from the aerial work, Mr. Page 2
Rollins lost consciousness as he was exiting the
lift's work platform and fell from the top of the
platform straight back onto the gym floor.
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 11OF19
APPENDIX 74
Page 3676
"Gary Rollins states both in his affidavit and Page 19
Amended Petition that he lost consciousness
while existing from the lift."
"that he lost consciousness existing the lift;" Page 20
Texas College objects to this portion of Rollins' Affidavit or any similar statement in his
affidavit, and the corresponding references in Plaintiffs' response, on the basis that it is a "sham"
affidavit in that respect. An affidavit that contradicts the affiant's previous deposition testimony
without any explanation for the change in testimony and is intended to create a fact issue to
defeat summary judgment is considered a "sham" affidavit. Farroux v. Denny's Restaurants,
Inc., 962 S.W.2d 108, 111 (Tex. App. - Houston [1st Dist.] 1997, no pet.). Without any
explanation as to the change in testimony, the court is to assume that the sole purpose of the
affidavit was to avoid summary judgment. Pando v. Southwest Convenience Stores, 242 S.W.3d
76, 79 (Tex. App. - Eastland 2007, no pet.). "Sham" affidavits are not competent summary
judgment evidence and cannot raise a fact issue. Id.
Mr. Rollins testified multiple times in his deposition that he did not know if he passed out
or lost consciousness. Garry Rollins' Deposition, 141:1 - 141:6; 141:25 - 142:6; 142:15 -
143: 1. Despite Mr. Rollins testifying under oath multiple times that he does not know whether
he passed out or lost consciousness, he now takes the firm position that he in fact did pass out or
lose consciousness. Rollins has reversed himself and now taken this contradictory position,
without explanation, in a misguided effort to create a fact issue, where none exists, regarding
whether Texas College breached a duty of care by allegedly forcing Mr. Rollins to utilize the
scissor lift when it purportedly knew Rollins had an alleged history of "seizures and blackouts."
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 12 OF 19
APPENDIX 75
Page 3677
The affidavit is clearly a sham and the College respectfully submits that it should be disregarded
and stricken, or alternatively, the foregoing statements and references should be stricken.
have Not Qualified/Incompetent to Testify
This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because Mr. Rollins is not qualified to testify to the matter contained
therein. An opinion as to the reasons for surgery or medically necessary procedures would
require the opinion of a medical expert. Mr. Rollins is not a medical expert and has offered
nothing more than a conclusory opinion that it was the a}leged injuries he incurred at Texas
College's campus that necessitated surgery. Texas College ask that it be disregarded and
stricken by the Court.
"My surgeon's letter to my lawyer describing Hearsay
my injury is attached to my affidavit as Exhibit Not shown to be qualified/competent
D. I have reviewed this document with my
lawyer and I am familiar with my surgeon's
opinion. He provided the letter in connection
with this case."
This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because the information is hearsay. The letter attached to Rollins'
affidavit as Exhibit D is incompetent hearsay for which no exception applies. Mr. Rollins' sole
purpose for including such records is to prove the truth of the matter asserted by Mr. Rollins.
Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit and the exhibit
referenced should be sustained, and this portion and the exhibit stricken and disregarded by the
Court.
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 13 OF 19
APPENDIX 76
Page 3678
been Lack of Personal Knowledge
Irrelevant
Incompetent to testify
This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because it is irrelevant hearsay. Mr. Rollins has not established that he
has personal knowledge regarding workers who have been injured or killed because of scissor
lifts, that he has conducted a survey, or that he is qualified or competent to testify as to such
matters. Furthermore, the foregoing statements are irrelevant to this litigation and have no
probative value. Texas College objects and moves that they be stricken and disregarded.
"There was another instance at Texas College Lack of Personal Knowledge
that I am personally familiar with where another Irrelevant
employee was asked to do work that he was not
trained to do and got hurt. That employee was
later fired."
This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not
considered by the Court because Mr. Rollins lacks personal knowledge to testify on same. Mr.
Rollins has not established in any way that he has personal knowledge that an employee was
asked to do work that he was not trained to do. Instead, he just makes a blanket statement
without information explaining when the information was obtained, how the information was
obtained, whether he observed the alleged incident, or any other information that would tend to
establish that Mr. Rollins had personal knowledge of this occurring.
Furthermore, Rollins' self-serving testimony that the alleged employee "got hurt"
because he was instructed to perform work he was not trained to do lacks any demonstration of
personal knowledge or competent support. Mr. Rollins has not established how he has personal
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 14 OF 19
APPENDIX 77
Page 3679
knowledge that this is the reason for any alleged injuries sustained by the alleged employee.
Without establishing how Mr. Rollins has personal knowledge as to this information, Mr.
Rollins' testimony is mere speculation and is inadmissible.
Still further, Mr. Rollins has not established in any way that he has personal knowledge
that the particular employee was "fired." Instead, he just makes a conclusoiy statement without
information stating when the information was obtained, how the information was obtained, or
any other information that would tend to establish that Mr. Rollins had personal knowledge of
the reasoning for this alleged employees' departure from employment. It amounts to pure
speculation and hearsay. Finally, it is irrelevant to this litigation. Texas College objects and
moves that it be disregarded and stricken.
V. Objections to information contained in Plaintiffs' response without evidentiary
support
A party must attach evidence that would be admissible in trial in a response to a motion
for summary judgment to establish any facts contained therein. See United Blood Servs. v.
Longoria, 938 S.W.2d 29, 30 (Tex. 1997); see TEX. R. C1v. P. 166a(f). If a party does not
substantiate the allegations made within its response to a Motion for Summary Judgment with
admissible summary-judgment proof, the information shall not be considered by the Court. Id.
"There was no postings at Texas College No evidentiary support
pertaining to safe lifting techniques" (Page 13)
Texas College objects to this particular statement included within Plaintiffs' response, as
there is no competent summary-judgment evidence before the Court to establish this alleged fact.
Texas College requests that its objection to this portion be sustained and not considered by the
Court.
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 15 OF 19
APPENDIX 78
Page 3680
Obiectionable Statement in Resnonse ObiectionGarry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All"
Combined Opinion