Jesus Garcia v. MTZ Trucking, Inc.

Opinion issued August 8, 2019

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00733-CV
———————————
JESUS GARCIA, Appellant
V.
MTZ TRUCKING, INC., Appellee

On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2015-55326

MEMORANDUM OPINION

Appellant, Jesus Garcia, challenges the trial court’s rendition of summary

judgment in favor of appellee, MTZ Trucking, Inc., in his suit for negligent

training and supervision and gross negligence. In his sole issue, Garcia contends

that the trial court erred in granting MTZ Trucking summary judgment.
 We affirm.

Background

In his second amended petition, Garcia alleges that he was hired by MTZ

trucking to “operate dump trucks.” On July 3, 2014, while working as an employee

of MTZ Trucking, he delivered a load of product to the premises of Perfect Plastic

Recycling, Inc., a company “owned, operated, and managed” by Viral Thakkar. On

that day, in the course of making his delivery, Garcia’s end-dump truck “came into

contact with a live power line” on Perfect Plastic’s premises. Garcia suffered

serious and permanent injuries as a result.

Garcia brought claims against MTZ Trucking for negligent training and

supervision and gross negligence.1 Garcia asserted that MTZ Trucking owed a

legal duty to train and supervise its employees, including Garcia; it breached its

duty; and its breach proximately caused Garcia’s injuries. More specifically,

Garcia alleged that MTZ Trucking failed to provide him with training on “the

operation of the machinery,” that is, an end-dump truck; failed to supervise him “in

his work with dump trucks”; and failed to “properly train[] or supervise[] [him] on

avoiding electrical wires.” Garcia sought damages for past and future physical pain

and mental suffering, past and future loss of earning capacity, past and future

1
Garcia also brought claims against Perfect Plastic and Thakkar, who are not
parties to this appeal.

2
medical expenses, past and future physical impairment, past and future physical

disfigurement, and “exemplary/punitive damages.”

MTZ Trucking answered, generally denying Garcia’s allegations and

asserting defenses. MTZ Trucking then filed a combined no-evidence and

matter-of-law motion for summary judgment, attaching exhibits. In the motion,

MTZ Trucking asserted that, as a matter of law, it did not owe a duty to train or

supervise Garcia “regarding any alleged dangerous condition asserted by [Garcia]

on . . . Perfect Plastic’s premises.” Further, it asserted that Garcia is “a seasoned

truck driver with over 33 years of experience,” he “had made over 100 deliveries

dumping materials for” MTZ Trucking, and he “had driven th[e] exact same

end[-]dump truck at least 15 previous times.” It therefore allegedly did not owe

him a duty to train and supervise him “to pay attention to his surroundings before

raising the [end-dump] truck’s trailer into power lines.” In other words, (1) because

Garcia was “experienced in the type of work he was doing” when he was injured,

(2) because “MTZ Trucking had no knowledge nor was it required to anticipate the

presence of electrical wires” on Perfect Plastic’s premises, and (3) because “the

dangers incident to electrical power lines are common and obvious to anyone,”

MTZ Trucking owed “no duty pertaining to the power lines or [Garcia]’s operation

of the truck.” And because the existence of a legal duty is an essential element of

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Garcia’s claims, MTZ Trucking argued that it was entitled to judgment as a matter

of law.

In response to MTZ Trucking’s motion, Garcia asserted that MTZ Trucking

owed him the common-law duties to “hire, supervise, train, and retain competent

employees” and “to adequately hire, train, and supervise [inexperienced]

employees.” Garcia asserted that he “was not experienced in the work he was

assigned[,] which was the unloading of end dumps.” Further, according to Garcia,

MTZ Trucking had a “duty to train [him] under federal motor carrier safety law.”

Garcia attached exhibits to his response too.

In reply to Garcia’s response, MTZ Trucking argued that it did not owe

Garcia a “duty to properly train and supervise an inexperienced employee” because

Garcia was not inexperienced. Further, Garcia “fail[ed] to provide sufficient

evidence of a duty to train [him] for the specific dangers of overhead electrical

wires and the dangers of contact” between an end-dump truck and such wires.

According to MTZ Trucking, an employer owes no duty to warn an employee of

hazards that are commonly known or already appreciated by the employee. And

Garcia also “failed to provide sufficient evidence to establish” that MTZ Trucking

had “an additional duty pursuant to” federal motor carrier safety law.

The trial court granted MTZ Trucking summary judgment.

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 Standard of Review

We review a trial court’s decision to grant summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In

conducting our review, we take as true all evidence favorable to the nonmovant,

and we indulge every reasonable inference, and resolve any doubts, in the

nonmovant’s favor. Id. If a trial court grants summary judgment without specifying

the grounds for granting the motion, we must uphold the trial court’s judgment if

any of the asserted grounds is meritorious. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013); Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148

(Tex. App.—Houston [1st Dist.] 2005, pet. denied).

A party seeking summary judgment may combine in a single motion a

request for summary judgment under the no-evidence standard with a request for

summary judgment as a matter of law. See TEX. R. CIV. P. 166a(c), (i); Binur v.

Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). When a party has sought summary

judgment under both standards, we typically review the summary judgment first

under the no-evidence standard. See Merriman, 407 S.W.3d at 248; Deweese v.

Ocwen Loan Servicing L.L.C., No. 01-13-00861-CV, 2014 WL 6998063, at *2 n.1

(Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem. op.). However, we

may review the summary judgment under the matter-of-law standard first if it

would be dispositive. See Deweese, 2014 WL 6998063, at *2 n.1; Poag v. Flories,

5
317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied); see also TEX. R.

APP. P. 47.1.

In a matter-of-law summary-judgment motion, the movant has the burden to

show that no genuine issue of material fact exists and that the trial court should

grant judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat

Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

When a defendant moves for a matter-of-law summary judgment, it must either:

(1) disprove at least one essential element of the plaintiff’s cause of action or

(2) plead and conclusively establish each essential element of an affirmative

defense, thereby defeating the plaintiff’s cause of action. Lujan v. Navistar Fin.

Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Once

the movant meets its burden, the burden shifts to the nonmovant to raise a genuine

issue of material fact precluding summary judgment. See Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Tr.,

321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The

evidence raises a genuine issue of fact if reasonable and fair-minded jurors could

differ in their conclusions in light of all of the summary-judgment evidence. See

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

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 Summary Judgment

In his sole issue, Garcia argues that the trial court erred in granting MTZ

Trucking summary judgment on his claims for negligent training and supervision

and gross negligence because: (1) MTZ Trucking, as a “non-subscriber employer,”

“ha[d] a legal duty to train or supervise [Garcia] on the specific hazards associated

with operating an end dump in the vicinity of overhead electric wires when an

injury occurs outside the non-subscriber’s premises”; (2) “the hazard of unloading

an end dump in the vicinity of electric wires, and the risk of [electric shock] when

exiting a cab of the end dump that might be in contact with overhead electrical

wires,” were not “open and obvious hazards”; and (3) “there is a fact issue for the

jury whether the hazards were ‘open and obvious.’”

A. Employee Negligence Suit Against “Non-Subscribing” Employer

Ordinarily, to establish negligence, a plaintiff must establish a duty, a breach

of that duty, damages, and that the damages were proximately caused by the

breach. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The

“threshold inquiry” is “whether the defendant owes a legal duty to the plaintiff.”

Centeq Realty, 899 S.W.2d at 197. Whether a duty exists is a question of law for

the court to decide from the facts surrounding the occurrence in question. Id.;

Advance Tire & Wheels, LLC v. Enshikar, 527 S.W.3d 476, 480 (Tex. App.—

7
Houston [1st Dist.] 2017, pet. dism’d). We review questions of law de novo.

Advance Tire & Wheels, 527 S.W.3d at 480.

The Texas Workers’ Compensation Act—see TEX. LAB. CODE §§ 401.001–

419.007—was enacted in response to the needs of employees who, despite

escalating industrial accidents, were increasingly being denied recovery for injuries

sustained in the course and scope of their employment. Kroger Co. v. Keng, 23

S.W.3d 347, 349 (Tex. 2000); Dodge, 187 S.W.3d at 529. The Act allows an

injured employee, whose employer subscribes to workers’-compensation

insurance, to recover without having to establish the employer’s fault and without

regard to the employee’s own negligence. See Keng, 23 S.W.3d at 349. In

exchange, the employee receives a lower, but more certain, recovery than would

have been possible under the common law. Id. at 350.

When, however, an employer opts out of the workers’-compensation system,

making it a “non-subscribing” employer, its employees retain their common-law

rights. Id.; Dodge, 187 S.W.3d at 529. In an employee’s suit against his or her

“non-subscriber” employer, the Act precludes the employer from asserting the

defenses “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.” TEX. LAB. CODE § 406.033(a); see also

8
Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 200 (Tex. 2015); Dodge, 187 S.W.3d

at 529.

Here, the parties agree that MTZ Trucking is a “non-subscribing” employer,

making it responsible for its employees’ work-related injuries under common-law

negligence principles. See Keng, 23 S.W.3d at 349–50; Werner v. Colwell, 909

S.W.2d 866, 868 (Tex. 1995) (“Because Eastex is a workers’ compensation

nonsubscriber, Colwell must establish negligence by Eastex in order to recover.”).

At common law, employers owe certain nondelegable and continuous duties

to their employees who are acting in the course and scope of the employment

relationship. See Keng, 23 S.W.3d at 349–50; Dodge, 187 S.W.3d at 529. These

include the duties to warn about the hazards of employment; to supervise activities;

to furnish a reasonably safe workplace; to furnish reasonably safe instrumentalities

with which to work; and to provide necessary equipment, training, or supervision.

See Elwood, 197 S.W.3d at 794; Advance Tire & Wheels, 527 S.W.3d at 480;

Dodge, 187 S.W.3d at 529.

However, a “non-subscribing” employer’s common-law duties to its

employees do not make it an insurer of its employees’ safety. Elwood, 197 S.W.3d

at 794. An employer owes no duty to warn its employee of hazards that are

commonly known or already appreciated by the employee. Jack in the Box, Inc. v.

9
Skiles, 221 S.W.3d 566, 568 (Tex. 2007); Elwood, 197 S.W.3d at 794.2 This rule

means, for example, that an employer owes “no duty to warn of ‘obvious risks’

that are common knowledge” and no “duty to train employees regarding the

commonly-known dangers of driving while fatigued.” Nabors Drilling, U.S.A., Inc.

v. Escoto, 288 S.W.3d 401, 412–13 (Tex. 2009).

B. Duty

In a portion of his sole issue, Garcia argues that the trial court erred in

granting MTZ Trucking summary judgment because: (1) MTZ Trucking “has a

legal duty to train or supervise [Garcia] on the specific hazards associated with

operating an end dump in the vicinity of overheard electric wires,” even though

Garcia’s injury did not occur on MTZ Trucking’s premises; (2) “the hazard of

unloading an end dump in the vicinity of electric wires, and the risk of [electric

shock] when exiting a cab of the end dump that might be in contact with overhead

electrical wires” are not “open and obvious hazards”; and (3) a fact issue exists as

to “whether the hazards were ‘open and obvious.’”

2
We note that, in his appellate brief, Garcia argues that Jack in the Box and similar
cases “discuss the lack of a duty in a premises[-]liability case when the hazard to
be warned against is ‘open and obvious.’” According to Garcia, this means that
Jack in the Box and similar cases “are premises[-]liability cases” that “have no
application” to Garcia’s claims. We disagree. The rule from Jack in the Box and
Elwood that an employer has no duty to warn its employee of hazards that are
commonly known or already appreciated by the employee may be applied to the
employee’s negligence suit for injuries sustained off of premises owned or
controlled by the employer.

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 1. Duty Allegations Pleaded

As an initial matter, we address Garcia’s purported claim for negligent

training and supervision arising out of his “exiting [the] cab of the end dump.”

Specifically, we look to Garcia’s second amended petition to determine whether he

alleged, as he now advocates on appeal, that MTZ Trucking had a duty to train or

supervise him on “the risk of [electric shock] when exiting a cab of the end dump

that might be in contact with overhead electrical wires.” Cf. Hand v. Dean Witter

Reynolds Inc., 889 S.W.2d 483, 489–90 (Tex. App.—Houston [14th Dist.] 1994,

writ denied) (addressing first “new negligence theory concerning appellees’ duty,

or lack thereof, as it relates to [plaintiff’s] negligence claim,” which “was not pled

in [plaintiff’s] original petition”).

“Pleadings, not motions, determine the issues and parameters of a contest.”

In re Energy Transfer Fuel, L.P., 298 S.W.3d 343, 346 n.2 (Tex. App.—Tyler

2009, orig. proceeding); accord Alashmawi v. IBP, Inc., 65 S.W.3d 162, 171 (Tex.

App.—Amarillo 2001, pet. denied); Ely v. Gen. Motors Corp., 927 S.W.2d 774,

782 (Tex. App.—Texarkana 1996, writ denied) (“[P]leadings . . . frame the issues

involved in ruling upon [a] summary judgment motion.”); Jobe v. Lapidus, 874

S.W.2d 764, 765–66 (Tex. App.—Dallas 1994, writ denied). A pleading setting

forth a claim for relief must contain a short statement of the causes of action

alleged “sufficient to give fair notice of the claim involved.” TEX. R. CIV. P. 47(a).

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In determining whether a pleading meets this fair-notice standard, we are to

liberally construe the pleading, but, “[e]ven so, a liberal construction does not

require a court to read into a petition what is plainly not there.” Bos v. Smith, 556

S.W.3d 293, 306 (Tex. 2018) (internal quotation omitted).

In his second amended petition, Garcia brought claims against MTZ

Trucking for negligent training and supervision and gross negligence. Garcia

asserted that MTZ Trucking owed a legal duty to train and supervise its employees,

including Garcia; MTZ Trucking breached its duty; and MTZ Trucking’s breach

proximately caused Garcia’s injury. Garcia further pleaded:

[He] was hired by . . . MTZ Trucking to operate dump trucks,
and . . . MTZ Trucking failed to provide [Garcia] with training on the
operation of the machinery. . . . MTZ Trucking also failed to supervise
[him] in his work with dump trucks. [He] was not properly trained or
supervised on avoiding electrical wires.

He supported his claims against MTZ Trucking with the following factual

allegations:

On or about July 3, 2014, [Garcia] was transporting material for his
employer, . . . MTZ Trucking, on . . . Perfect Plastic[’s] . . .
premises. . . . Specifically, while [Garcia] was working on . . . Perfect
Plastic[’s] . . . premises and under . . . Perfect Plastic[’s] . . . direction,
his [end-dump truck] came into contact with a live power line, causing
[his] injuries and damages . . . . There were no warning signs to this
area to warn invitees of the dangerous condition nor were there
protection barricades to prevent injuries to invitees such as that which
occurred to [Garcia]. . . . Defendants negligently caused and
negligently permitted such condition to exist and negligently failed to
warn [Garcia] of the condition, despite the fact that Defendants knew,
or in the exercise of ordinary care, should have known of the

12
 existence of the condition and that there was a likelihood of someone
being injured as happened to [Garcia]. More specifically, Defendants
had actual or constructive knowledge of the condition on the premises
and that the condition posed an unreasonable risk of harm. Defendants
did not exercise reasonable care to reduce or eliminate the risk, and
Defendants’ failure to use such care proximately caused [Garcia]’s
injuries.
Notably, Garcia does not, in his second amended petition, plead any facts

that would have put MTZ Trucking on notice that he was making a claim based on

MTZ Trucking’s purported duty to train or supervise him not to exit an end-dump

truck’s cab when the truck has struck, and is in continuing contact with, power

lines. See Bos, 556 S.W.3d at 306 (court not required to read into petition “what is

plainly not there”); Hand, 889 S.W.2d at 489–90. Thus, Garcia failed to allege any

claim arising out of MTZ Trucking’s purported duty to train or supervise Garcia on

cab-exiting. Accordingly, we restrict our review of Garcia’s negligent supervision

and training claims to what is actually contained in his second amended petition—

claims arising out of MTZ Trucking’s purported duty related to avoiding power

lines in the first place while operating the end-dump truck. See Alashmawi, 65

S.W.3d at 171 (refusing to consider duty argument advanced on appeal but not

contained in pleadings); Hand, 889 S.W.2d at 490 (“Thus, the question is whether

[defendants] had a duty to purchase the options or take necessary steps to purchase

the options because this was the only act of negligence alleged by [plaintiff] in her

petition.” (internal quotation omitted)).

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 2. MTZ Trucking’s Duty

MTZ Trucking argued in its motion for summary judgment that it was

entitled to summary judgment as a matter of law because it did not owe Garcia a

legal duty. MTZ Trucking argued that Garcia is “a seasoned truck driver with over

33 years of experience,” he “had made over 100 deliveries dumping materials for”

MTZ Trucking, and he “had driven th[e] exact same end[-]dump truck at least 15

previous times.” MTZ Trucking therefore contended that it owed Garcia no duty to

train and supervise him “to pay attention to his surroundings before raising the

[end-dump] truck’s trailer into power lines on . . . Perfect Plastic’s property while

[Garcia was] under . . . Perfect Plastic’s direction and control.”

Further, according to MTZ Trucking’s motion, Garcia was “experienced in

the type of work he was doing” when he was injured, MTZ Trucking had “no

knowledge nor was it required to anticipate the presence of electrical wires” on

Perfect Plastic’s premises, and “the dangers incident to electrical power lines are

common and obvious to anyone.” MTZ Trucking therefore argued that it owed

Garcia “no duty pertaining to the power lines or [Garcia]’s operation of the

[end-dump] truck” near such power lines. See Jack in the Box, 221 S.W.3d at 568

(employer owes no duty to warn its employees of hazards that are commonly

known or already appreciated by employee); Elwood, 197 S.W.3d at 794 (same).

14
 MTZ Trucking attached to its motion the deposition testimony of Thakkar,

an owner of Perfect Plastic. In his deposition, Thakkar testified about another event

involving Garcia on Perfect Plastic’s premises. The event occurred “[a] few days

before” the incident in question. During the earlier event, Garcia was operating an

end-dump truck and “dumped product in about the very same area” where he was

operating the truck when he was later injured. During the earlier event, Garcia

drove his end-dump truck with the trailer up in the air, but Perfect Plastic’s

“spotter” was present and told Garcia “to stop” because Garcia “almost hit[] the

[electrical] wire” with his truck. According to Thakkar, on the day Garcia was

injured, the “[s]ame exact thing” happened again—Garcia drove his end-dump

truck with the trailer up in the air near the overhead electrical wires. This time,

however, Garcia hit the electrical wires with his truck.

MTZ Trucking also attached to its motion the deposition testimony of

Garcia. During his deposition, Garcia testified that when he applied for a job with

MTZ Trucking, he discussed his “experience as a truck driver” with MTZ

Trucking’s owner. According to Garcia, he has been a truck driver for

thirty-three years. While driving an end-dump truck, he “look[s] around [his]

surroundings before [he] move[s] [his] truck in to see if [he] can fit in and what’s

around [him].” Garcia agreed that “[p]art of [his] job as a truck driver is to know

the capacity of [his] truck” and its height and length. Before his injuries, Garcia

15
had successfully operated end-dump trucks, delivering product “many times while

working for MTZ [Trucking] without getting hurt.” He had practiced operating the

end-dump truck’s trailer-lifting mechanism several times. He had been on Perfect

Plastic’s premises before July 3, 2014, “three or four times,” driving the same

truck that he drove during the July 3, 2014 incident.

Garcia further testified that on the day of the incident, he entered Perfect

Plastic’s premises and was driving his end-dump truck, but he “didn’t see any

power lines.” He “wasn’t looking out for that. . . . [He] was paying attention to the

spotter.” He “didn’t look for” the power lines near his truck, or “just didn’t see

them,” because he “was paying attention to the spotter.” And when he later “got

out of [his] truck to go to the [truck’s] gate to open it up,” he “didn’t look” for the

power lines then either.

During his deposition, Garcia agreed that, “in general” with regard to

“abid[ing] by posted speed limits,” MTZ Trucking does not have “an obligation to

tell [him] that or to teach [him] that or to train [him about] that”—he “already

know[s] that.” That is because, according to Garcia, it is “common sense” to abide

by the speed limit. He contrasted the common sense of abiding by posted speed

limits with other, unforeseen events: “Yes. We know that. Things that I’ve been

through already, you know, I should know things. [Things] [t]hat I’ve never been

through, that’s where I have the problem.”

16
 MTZ Trucking also attached to its motion the deposition testimony of its

owner, Angel Martinez. On the topic of training Garcia “how to deal with power

lines,” Martinez testified that Garcia “could pay attention out there” and that he

could “look around . . . [n]ot just for those wires, but he [has] to look around for

everything.” Further, Martinez explained that when he, a commercially licensed

truck driver with two and a half decades of experience, is “driving to a facility to

take a load,” he is concerned about and “looking out for things like a power line.”

MTZ Trucking also attached to its motion the affidavit of Bradley Hubbard,

a “transportation and securement specialist in the field of transportation and safety

management.” Hubbard testified that he has “management, transportation,

logistics, safety, and driving experience” and is “a certified trainer in Safety and

Compliance.” Hubbard testified that he investigated Garcia’s incident in order to

determine its cause. To do so, he reviewed photographs of the incident’s location

and Garcia’s, Thakkar’s, and Martinez’s depositions. He also relied on a section of

the “Texas Department of Public Safety CDL Handbook” that, according to his

affidavit, provides:

Hitting overhead objects is a danger. Make sure you always have
overhead clearance. . . . Before you back into an area, get out and
check for overhanging objects such as trees, branches, or electric
wires. It’s easy to miss seeing them while you are backing. (Also
check for other hazards at the same time.).
(Emphases in original; internal quotations omitted.)

17
 Based on his investigation, Hubbard opined that Garcia “had numerous

opportunities on the day of the incident to simply look and see the obvious

presence of the electrical power lines overhead.” He also opined that “Garcia’s

failure to pay attention to his surroundings[,] despite at least two decades of

driving experience and despite the fact [that] he previously even owned his own

trucking company[,]” caused his injury. According to Hubbard, “[o]ne of the first

things any driver is taught i[s] to make sure he is aware of what is around him.”

Hubbard opined that Garcia, given his “over twenty years of experience,” “should

have known this basic safety precaution.”

By its motion and the testimony from Thakkar, Garcia, Martinez, and

Hubbard, MTZ Trucking carried its summary-judgment burden to conclusively

disprove the duty element of Garcia’s negligence claims by bringing them within

the ambit of the rule that an employer owes its employees no duty to warn of

hazards that are commonly known or already appreciated by the employees. See

Jack in the Box, 221 S.W.3d at 568; Elwood, 197 S.W.3d at 794; Lujan, 433

S.W.3d at 704. Here, the dangers of operating an end-dump truck with its trailer up

in the air near overhead electrical wires would be commonly known to a

reasonable person. See Nabors Drilling, U.S.A., 288 S.W.3d at 412–13; Jack in the

Box, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at 794–95. Accordingly, we hold

that MTZ Trucking owed Garcia no duty “to train or supervise [Garcia] on the

18
specific hazards associated with operating an end[-]dump [truck] in the vicinity of

overheard electric[al] wires.”

To the extent that Garcia argues in his brief that MTZ Trucking, (a) under

the Restatement (Second) of Torts, owed him a duty to “exercise reasonable care”

for “undertak[ing], gratuitously or for consideration, to render services to another

which [it] should recognize as necessary for the protection of the other’s person or

things”3 and, (b) under federal motor carrier safety law, duties to “verify that

drivers are qualified to operate the commercial vehicle [that] they are to drive to

prevent serious harm to the driver and all of us” and to “not require or permit a

person to drive a commercial motor vehicle unless that person is qualified to drive

a commercial motor vehicle,” Garcia’s arguments are unavailing.4

Here, the incident that resulted in Garcia’s injuries arose from a

“hazard[] . . . commonly known or already appreciated by” Garcia. See Jack in the

Box, 221 S.W.3d at 568; Elwood, 197 S.W.3d at 794. When a hazard is commonly

known or already appreciated by the employee, the rule relieving an employer of

any duty to its employee relating to such a hazard operates as an exception to any

other duties that the employer may owe to the employee.
3
RESTATEMENT (SECOND) OF TORTS § 323 (1965) (“Negligent Performance of
Undertaking to Render Services”).
4
We express no opinion on whether MTZ Trucking owed Garcia these purported
duties. Further, we need not address MTZ Trucking’s assertion in its brief that
Garcia failed to plead that it owed him duties under section 323 of the Restatement
(Second) of Torts and federal motor carrier safety law. See TEX. R. APP. P. 47.1.

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 Next, in his brief, Garcia asserts that a fact issue exists as to “whether the

hazards in this case are open and obvious” and that he presented evidence “that the

hazard in question is not open and obvious.”

When an appellant must demonstrate the existence of a genuine issue of

material fact to defeat summary judgment, the appellant must direct us to the

evidence in the record that purportedly creates the fact issue. See Amboree v.

Bonton, No. 01-14-00846-CV, 2015 WL 4967046, at *7 (Tex. App.—Houston [1st

Dist.] Aug. 20, 2015, no pet.) (mem. op.); Bich Ngoc Nguyen v. Allstate Ins. Co.,

404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied) (“Merely citing

generally to voluminous summary judgment evidence in response to either a

no-evidence or traditional motion for summary judgment is not sufficient to raise

an issue of fact to defeat summary judgment. In the absence of any guidance from

the non-movant where the evidence can be found, the trial and appellate courts are

not required to sift through voluminous deposition transcriptions in search of

evidence to support the non-movant’s argument that a fact issue exists.” (internal

citations and quotation omitted)); Daniel v. Webb, 110 S.W.3d 708, 710 (Tex.

App.—Amarillo 2003, no pet.) (“It is not our duty to sua sponte conceive of

potential fact issues and then search the appellate record for evidence supporting

their existence.”); Yard v. DaimlerChrysler Corp., 44 S.W.3d 238, 243 (Tex.

App.—Fort Worth 2001, no pet.).

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 Here, Garcia’s appellate briefs provide no discussion or analysis about his

statement that a fact issue exists as to whether hazards in this case were “open and

obvious.” And he does not direct this Court to any evidence in the record raising

his purported fact issue. Accordingly, we need not address Garcia’s assertion that a

purported fact issue exists as to whether “the hazards in this case were open and

obvious.”

To sum up, we have held that MTZ Trucking owed Garcia no duty “to train

or supervise [Garcia] on the specific hazards associated with operating an

end-dump [truck] in the vicinity of overheard electric[al] wires.” We therefore

conclude that Garcia’s claims for negligent training and supervision must fail. See

Jack in the Box, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at 794–95. And

because the negligence claims fail, the gross-negligence claims fail too. See

Sanders v. Herold, 217 S.W.3d 11, 19–20 (Tex. App.—Houston [1st Dist.] 2006,

no pet.) (overruling appellants’ issue concerning their gross-negligence claim

because court of appeals also held that appellants’ negligence claim failed for lack

of duty); Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.—

Austin 1990, writ denied) (“[O]ne’s conduct cannot be grossly negligent without

being negligent.”). Accordingly, we hold that the trial court did not err in granting

MTZ Trucking summary judgment.

We overrule Garcia’s sole issue.

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 Due to our disposition, we need not address any of Garcia’s remaining

arguments in his appellate briefs. See TEX. R. APP. P. 47.1.

Conclusion

We affirm the judgment of the trial court. We dismiss all pending motions as

moot.

Julie Countiss
Justice

Panel consists of Justices Lloyd, Landau, and Countiss.

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