Alexander Bunker v. Landstar Ligon, Inc.

NUMBER 13-00-612-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALEXANDER BUNKER, Appellant,

v.

LANDSTAR LIGON, INC., Appellee.

On appeal from the 234th District Court

of Harris County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Amidei

Opinion by Justice Amidei

Alexander Bunker, appellant, appeals from a summary judgment rendered in

favor of Landstar Ligon, Inc., appellee, dismissing his negligence suit for personal injury

damages. Appellant settled with West Belt Trucking, Inc. (West Belt) and Sidney

Truitt (Truitt) and those parties are not included in this appeal.

Background

Appellant, an employee of West Belt and another young co-worker, were

attempting to move a load of lumber with a forklift at West Belt’s facility in Houston,

Texas, when a rope appellant was holding got caught in the forklift wheel and cut off

the tip of his thumb. Appellee contracted with West Belt to solicit freight and to use

its property as a terminal. Also, West Belt was conducting a pallet recycling project

with money advanced by appellee. Appellee retained a general right to control the

activities on West Belt’s property. Appellant alleged that appellee’s agency

relationship and control over West Belt’s activities made it vicariously liable for West

Belt’s negligence, notwithstanding the contract provision defining West Belt as an

independent contractor. The trial court granted appellee’s no-evidence motion for

summary judgment. We affirm.

Standard of Review

A no-evidence summary judgment is equivalent to a pretrial directed verdict and,

in reviewing the grant of a no-evidence summary judgment, this court applies the same

legal sufficiency standard as applied in reviewing directed verdicts. Zapata v. The

Children’s Clinic, 997 S.W.2d 745 (Tex. App.–Corpus Christi 1999, pet. denied).

A contract construction is a matter of law for the trial court. Elliot-Williams

Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). A court’s primary concern is to

ascertain and give effect to the parties’ intentions as expressed in the instrument. Id.

Issues

Appellant’s issue number one asserts that the trial court erred in granting

summary judgment in favor of appellee. Appellant‘s cause of action is based on the

theory that West Belt was the agent of appellee and was directly and vicariously liable

to him for the negligence of appellant’s co-employee. Appellant claims the agency

was established by an agency agreement; the fact that Mr. Truitt, the president of

West Belt, was appellee’s on-site safety officer and carried business cards identifying

himself as appellee’s agent; and that a large Landstar sign was erected on appellant’s

worksite. Although the “agency contract” provided that West Belt was an independent

contractor, appellant argues Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985),

applies to make appellee liable because of its control over the work conducted on West

Belt’s premises. In Redinger , the facts that Living, Inc., the general contractor,

retained the power to direct the order in which the work was to be done and to forbid

the work being done in a dangerous manner, and exercised this control by coordinating

the work performed by two subcontractors and specifically ordering the activity or

instrumentality, i.e ,. the moving of dirt with a tractor with a box blade which crushed

Redinger’s left index finger, were cited by the Supreme Court to support its adoption

and application of the rule enunciated in the Restatement (Second) of Torts:

One who entrusts work to an independent contractor, but who retains

the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise

reasonable care, which is caused by his failure to exercise his control

with reasonable care.

Id. at 418 . However, Redinger is distinguishable and not applicable in the instant case

because the appellee, allegedly having control over the work conducted on West Belt’s

premises, did not retain the power to direct the order in which the work was to be

done and to forbid the work being done in a dangerous manner, and did not direct the

activity or instrumentality, i.e ., the use of a rope by appellant’s co-worker on a forklift

which cut off the tip of appellant’s thumb. Dictum in Redinger cites Restatement

(Second) Torts § 414 cmt. c (1965), which provides:

The employer must have retained at least some degree of control over

the manner in which the work is done. It is not enough that he has

merely a general right to order the work stopped or resumed, to inspect

its progress or to receive reports, to make suggestions or

recommendations which need not necessarily be followed, or to prescribe

alterations and deviations. Such a general right is usually reserved to

employers, but it does not mean that the contractor is controlled as to his

methods of work, or as to operative detail. There must be such a

retention of a right of supervision that the contractor is not entirely free

to do the work in his own way.

Id. (Emphasis supplied).

Recognizing that every premises owner

must have some latitude to tell its

independent contractors what to do, in general terms, and may do so without

becoming subject to liability, in Koch Refining Co. v Chapa, the supreme court held

that for section 414 cmt. c to apply there must not be a contractually retained

supervisory right that the contractor is “not entirely free to do the work in their own

way,” and the mere presence of the owner’s safety employee with the possibility he

might intervene to prevent the dangerous activity. Koch Refining Co. v. Chapa , 11

S.W.3d 153, 155 (Tex. 1999).

In this case, the contract between appellee and West Belt gave appellee a

general right to control the business and the right to require West Belt to conduct its

business in a business-like manner, but did not retain such a right of supervision that

West Belt was not entirely free to do the work in its own way. Even if West Belt’s

president was appellee’s on-site safety officer, there was no proof there were safety

rules as to the use of ropes with forklifts or that appellee actually exercised control

over West Belt’s pallet recycling operation. Appellant does not claim that any company

safety rule or statute regarding forklift operation was violated. There was no proof that

appellee routinely violated or ignored a safety guideline and either failed to cancel the

contract or require corrective action. Id. A premises owner by merely placing a safety

employee on the work site, does not incur a duty to an independent contractor’s

employees to intervene and ensure that they safely perform their work. Id. Neither

West Belt nor appellee were on notice of any safety problem. There was no proof that

appellant or anyone else had used a rope to tie down forklift loads, or that the use of

rope in such manner was something which was ordinary or even necessary, in

operating a forklift used to lift and move heavy, well-balanced loads short distances.

The Texas Supreme Court has never concluded that a general contractor actually

exercised control of a premises where, as here, there was no prior knowledge of a

dangerous condition and no specific approval of any dangerous act. Dow Chemical Co.

v. Bright, 89 S.W.3d 606, 609 (Tex. 2002). Appellee had no prior knowledge of a

dangerous condition and did not specifically approve any dangerous act. Appellee did

not owe appellant any duty, even assuming there was an agency relationship between

West Belt and appellee. There was no proof that the contractual control retained by

appellee related to the condition or activity that caused the injury, that is, the use of

a rope on a forklift. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). We

conclude that appellant has failed to present summary judgment evidence raising a

genuine issue of material fact regarding appellee’s right to control or the actual control

of West Belt’s activities, or that appellee owed him a duty, or failed to exercise

reasonable care in exercising control over any applicable safety standards. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex. 1998).

Appellant’s issue number one is overruled.

Appellant’s issue number two complains that the trial court erred in overruling

appellant’s objections to appellee’s summary judgment evidence.

Although the trial court made no ruling or finding on appellant’s objections to

appellee’s summary judgment evidence, appellant asserts the trial court implicitly

overruled his objections by granting summary judgment to appellee. Tex. R. App. P.

33.1(a)(2)(A) ; Blum v. Julian, 977 S.W.2d 819, 823-34 (Tex. App.–Fort Worth 1998,

no pet.). The Blum case indicates where the trial court fails to rule on objections to

summary judgment evidence, in some instances, a party need no longer get an express

ruling on an objection to preserve error if the ruling is implicit in the court’s findings .

Id. (emphasis added). However, for there to be an implicit ruling, there must be

something in the summary judgment or the record to indicate the trial court ruled on

objections other than the mere granting of the summary judgment. In re Schiwetz,

102 S.W.3d 355, 360 (Tex. App.–Corpus Christi 2003, pet. denied) (citing Jones v.

Ray Ins. Agency , 59 S.W.3d 739, 753 (Tex. App.–Corpus Christi 2001, pet. denied)).

In the instant case, the court’s findings do not indicate, implicitly or otherwise, that

the appellant’s objections were ruled on.

Appellant’s position assumes the trial court considered and used the evidence

subject to its objections. However, it was not necessary for the trial court to use such

evidence since appellee’s motion was a “no-evidence” motion for summary judgment,

and appellant failed to present a scintilla of summary judgment evidence of any duty

appellee owed to appellant. Tex. R. Civ. P. 166(a).

Further, even assuming the trial court used the evidence, we would overrule

appellant’s objections.

(1)Appellant states that appellee was not entitled to use certain

discovery responses as summary judgment evidence, but fails to

make an appropriate statement of the facts and references to the

record in order to make a clear and concise argument. Tex. R.

App. P. 38.1(f),(h). Such argument would be waived on appeal.

See id.

(2)Appellant claims the affidavit of Tom Beam failed to affirmatively

demonstrate the manner in which he purported to have personal

knowledge of West Belt’s operations. However, Beam’s affidavit

demonstrates the basis for his personal knowledge by delineating

his position as the vice president of finance and chief financial

officer with oversight duties over the implementation of the

agreements with various companies. Tex. R. Civ. P. 166(a)(f).

(3)Appellant objected that the affidavits of Sid Truitt and Tom Beam

contained conclusions and opinions as to the effect of the agency

agreement, joint enterprise, and control between West Belt and

appellee. However, if the witness is not testifying as an expert,

the witness’s testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a) rationally

based on the perception of the witness, and (b) helpful to a clear

understanding of the witness’s testimony or the determination of

a fact in issue. Tex. R. Evid. 701. Testimony in the form of an

opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier of

fact. Tex. R. Evid. 704. Truitt and Beam were presidents of West

Belt and appellee, respectively, and their opinions or inferences

could rationally be based on their perceptions which would be

helpful to a clear understanding of their testimony or the

determination of a fact in issue.

(4)Appellant objected that the affidavits of Truitt and Beam were not

clear, positive and direct and/or were not readily controvertible.

However, appellant does not clearly set out in what respect the

affidavits are not clear, positive and direct and does not develop

an argument to support his position. Tex. R. App. P. 38 .1(f),(h).

Further, appellant does not show that the affidavits cannot be

effectively countered by opposing evidence but merely concludes

they cannot be readily controvertible. Casso v. Brand, 776

S.W.2d 551, 558 (Tex. 1989) (“could have been readily

controverted” does not simply mean that the movant’s summary

judgment proof could have been easily and conveniently rebutted;

rather, it means that testimony at issue is of a nature which can

be effectively countered by opposing evidence).

Finally, even if the trial court made an error of law in failing to sustain appellant’s

objections, in view of our ruling on appellant’s issue number one we conclude the error

probably did not cause the rendition of an improper judgment, or prevent the appellant

from properly presenting the case to the court of appeals. Tex. R. App. P. 44. 1(a)(1)(2).

Appellant’s second issue is overruled.

Appellant’s issue number three argues that the trial court erred in granting

summary judgment on theories of recovery not addressed in appellee’s pleadings.

Contrary to appellant’s argument, the theories of vicarious liability and estoppel were

addressed in appellee’s motion for summary judgment. However, such theories were

not proven and were not necessary for the trial court to render summary judgment in

favor of appellee. See our disposition of appellant’s issue number one.

Appellant’s third issue number is overruled.

The judgment of the trial court is affirmed.

____________________________ MAURICE AMIDEI

Justice

Opinion delivered and filed

this 13th day of May, 2004.