The majority has overruled Science Spectrum's motion for rehearing. I respectfully dissent. I would grant the motion for rehearing and affirm the trial court's judgment.
It is undisputed that Arthur Martinez was injured on premises adjacent to Science Spectrum's premises; that Martinez's employer had exclusive control over those premises; and that Science Spectrum had absolutely no control over the premises or *Page 90 Martinez's work. Furthermore, even though Science Spectrum had a partition wall constructed between its leased premises and the adjacent premises (i.e., where Martinez was injured) several months before the injury occurred, and as required by the landlord, the evidence fails to show that Martinez was injured on, at or as a result of construction of the partition. And in this regard, any trial pleadings to the contrary by Martinez are not summary judgment evidence. Moreover, the evidence fails to show that Science Spectrum should have or could have foreseen that anyone (such as Martinez) would cut a hot feeder line on the adjacent lease's premises.
I am persuaded that the summary judgment evidence conclusively establishes the absence of a legal duty owed by Science Spectrum to Martinez. I would grant the motion for rehearing and affirm the trial court's judgment.