Court of Appeals of Texas, Dallas.

Lazaro DIAZ, Appellant,

v.

COMARK BUILDING SYSTEMS, INC., Appellee.

No. 05–98–00888–CV.

|

June 14, 2000.

Before Justices LAGARDE, MOSELEY, and FITZGERALD.

OPINION

MOSELEY.

*1 Lazaro Diaz was employed by Comark Building Systems, Inc. (Comark), a non-subscriber under the Texas Worker’s Compensation Act. Diaz sued Comark for negligence and products liability after his right hand was maimed by Comark’s table saw. Comark moved for summary judgment contending Diaz’s negligence was the sole cause of his injuries and, alternatively, that no evidence supports Diaz’s claims. The trial court granted Comark’s summary judgment. Diaz raises three points of error, contending: (1) Comark did not meet its summary judgment burden and Diaz raised material fact questions; (2) Comark did not meet its burden to obtain a no-evidence summary judgment; and (3) the trial court erred by denying Diaz’s request for a continuance. Comark brings one cross-point contending the trial court erred in overruling its objections to Diaz’s affidavit. For the reasons below, we reverse the trial court’s judgment and remand this cause for further proceedings.

Background

Comark hired Diaz to work in its business of manufacturing portable buildings. Diaz’s duties included cutting wood on a table saw. He was instructed to use a push stick to push the wood through the saw’s blade. Before his injury on February 3, 1995, Diaz operated the saw without incident for eight months.

In its motion for summary judgment, Comark relied on Diaz’s interrogatory answer, which described the incident as follows:

During the course of his employment, Plaintiff was operating a table saw for the purposes of cutting plywood. In the course of operating the table saw, wood shavings and saw dust accumulated in and around the immediate area of the table saw. While using a push stick to guide a piece of plywood through the saw, Plaintiff slipped on the wood shavings and saw dust on the floor. As a result, Plaintiff fell into the saw causing his fingers to become entangled in saw blade.

The medical records attached to Comark’s motion describe Diaz’s injuries as a “[r]ight hand saw injury with multiple amputations,” which included amputation of the middle and ring fingers at the middle phalanges and amputation of the little finger at the distal joint. The surgery report stated the amputated fingers were “in such poor condition as to not be able to be reattached.” Diaz was twenty-one years old at the time of the injury.

Summary Judgment Standard of Review

The function of summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but is to eliminate patently unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The well settled standards for reviewing a summary judgment are:

1. The movant for 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.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

*2 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548–49 (Tex.1985). “[W]e apply the rule applicable to instructed verdict cases in that the evidence is viewed in the light most favorable to the party opposing the motion.” Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 562 (1962) (citing Gulbenkian, 151 Tex. at 416–17, 252 S.W.2d at 931–32 (1952)). We affirm a summary judgment only if the summary judgment record establishes the right to summary judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

To obtain a summary judgment, a defendant must either negate at least one element of the plaintiff’s cause of action or plead and conclusively prove each element of an affirmative defense. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. International Union United Auto. Aerospace & Agric. Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex.App.—Dallas 1991, writ denied) (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982)).

Comark sought summary judgment on two grounds: (1) that Diaz’s negligence was the sole cause of his injuries; and (2) that Diaz had no evidence to support his claims. The trial court’s order granting summary judgment to Comark does not specify on which ground it granted summary judgment. We affirm summary judgment if any of the theories advanced in support of it are meritorious. Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Accordingly, Diaz must show that neither of Comark’s asserted grounds was a proper basis for summary judgment. See Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex.App.—Dallas 1992, writ denied).

Comark’s Objections to Diaz’s Affidavit

Before we apply the above standard, we must first address Comark’s cross-point, in which it contends the trial court erred “in overruling Comark’s objections to the conclusory, unsupported statements in Diaz’s affidavit.” To avoid waiver of a formal defect, a party must object or except in the trial court, bring the objection or exception to the trial court’s attention, and secure a ruling. Giese v. NCNB Texas Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex.App.—Dallas 1994, no writ). Comark met these requirements; therefore, it has preserved its objection for our review.

There is no difference between the standards for evidence admissible in a summary judgment proceeding and those applicable to a regular trial. United Blood Servs v. Longoria, 938 S.W.2d 29, 30 (Tex.1997) (per curiam). Evidentiary rulings are “committed to the trial court’s sound discretion.” Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998) (quoting City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995)). We gauge abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. United Blood Servs., 938 S.W.2d at 31 (citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995)).

*3 The portion of Diaz’s affidavit describing saw operations stated:

I was injured on February 3, 1995, when I caught my hand in the blade of the table saw. I was injured because the Defendant had failed to place a non-slip surface around the saw, and the saw was not in proper working condition. This caused saw dust to be push back towards me….

Comark asserts Diaz’s affidavit does not indicate Diaz had any specialized knowledge concerning saw operations or appropriate flooring surfaces around table saws and was inadmissible under Texas Rule of Evidence 701.

A lay witness’s opinion testimony is admissible if it “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’ testimony or the determination of a fact in issue.” Tex.R.Evid. 701. Diaz’s statement that he was injured because Comark did not place a non-slip surface around the saw meets the requirements of Rule 701 because it is rationally based on Diaz’s perceptions and helpful to a clear understanding of his testimony or the determination of a fact in issue. Likewise, his statement that the saw was not working properly and caused saw dust to be pushed back towards the saw operator is also rationally based on his perception and helpful to a clear understanding of his testimony or the determination of a fact in issue. Accordingly, the trial court did not clearly abuse its discretion by overruling Comark’s objections to Diaz’s testimony about saw operations. See Tex.R.Evid. 701.

Second, Comark contends the above quoted excerpt from Diaz’s affidavit was conclusory and, therefore, not admissible as summary judgment evidence. The prohibition of “conclusory” evidence does not mean that logical conclusions based on stated underlying facts are improper. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.—Houston [1st Dist.] 1997, no writ). Testimony is objectionable as conclusory if it is comprised “only of legal conclusions,” Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam), or when it is “nothing more than a legal conclusion.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); see also Rizkallah, 952 S.W.2d at 587.

Comark contends Diaz’s averment that he was injured because “the Defendant had failed to place a non-slip surface around the saw, and the saw was not in proper working condition” is conclusory. The statement that Comark “failed to place a non-slip surface around the saw” is a factual statement, not a conclusion. As to Diaz’s statement that “the saw was not in proper working condition,” his very next statement provided, “[t]his caused the saw dust to be push [sic] back towards me.” In other words, the saw was not operating properly because the saw dust was being pushed back towards the operator. While Diaz’s affidavit does not explain mechanically why the saw was pushing saw dust at the operator, it does state underlying facts. Similarly, Diaz’s statement that those conditions caused his injuries is a logical conclusion arising from his related statements concerning the floor and the table saw.

*4 We hold the trial court did not clearly abuse its discretion by overruling Comark’s objections to the complained-of statement in Diaz’s affidavit. We overrule Comark’s cross-point. Having thus determined the evidence properly before the trial court, we apply the appropriate standards of review and consider Diaz’s points of error.

Negligence Claim

An employee of a workers’ compensation nonsubscriber must establish the employer is negligent in order to recover. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995) (citing Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955)). To establish negligence, evidence must be produced to establish a duty, a breach of that duty, and damages proximately caused by the breach. Werner, 909 S.W.2d at 869 (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987)). In his first point of error, Diaz contends Comark failed to meet its summary judgment burden to establish as a matter of law that Diaz’s negligence was the sole cause of his injury.

An employer has a duty to its employees to use ordinary care in providing a safe work place. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996); Werner, 909 S.W.2d at 869. The employer’s nondelegable and continuous duties to its employees include: providing a safe place in which to work and to furnish reasonably safe instrumentalities, warning employees of the hazards of their employment, and supervising their activities. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975); see also National Convenience Stores v. Matherne, 987 S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no pet).

A nonsubscribing employer may not assert the contributory negligence, if any, of the injured employee as a defense. Tex.Lab.Code Ann. § 406.033 (Vernon 1996); The Kroger Co. v. Keng, No. 98–1012, 2000 WL 575969, at *1 (Tex. May 11, 2000). However, an employer is not liable if the employee’s negligence was the “sole proximate cause” of the accident. Najera v. Great Atl. & Pac. Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948). The “matter of sole proximate cause is, like other controverted fact issues, ordinarily one to be submitted to the jury.” Id. at 367.

Disposition by summary judgment is the exception, not the general rule, in cases which require a determination of negligence. Rodriguez v. Moerbe, 963 S.W.2d 808, 814 (Tex.App.—San Antonio 1998, pet. denied); Hennessy v. Estate of Perez, 725 S.W.2d 507, 509 (Tex.App.—Houston [1st Dist.] 1987, no writ). Because proximate causation is inherently a factual issue, and because it is a contested issue in most negligence cases, summary judgment ordinarily is not well adapted to the disposition of negligence cases. Hennessy, 725 S.W.2d at 509 (citing Taylor v. Southwestern Bell Tel. Co., 483 S.W.2d 330, 332 (Tex.Civ.App.—El Paso 1972, no writ). “[T]he question of causation (foreseeability) which controls liability should be determined from the facts and circumstances of each particular case, and except where reasonable minds cannot differ, the issue is one for the jury.” Strakos v. Gehring, 360 S.W.2d 787, 792 (Tex.1962).

*5 James Clayton, vice-president of Comark, executed an affidavit in support of Comark’s motion for summary judgment. Clayton averred: (1) Comark instructs all of its employees in the safe operation of tools, including table saws; (2) Comark holds daily safety meetings with its employees, and the meetings are held in both English and Spanish; (3) at the beginning of Diaz’s employment, Comark gave Diaz a written safety policy, which he signed; (4) Comark trained Diaz on the operation of the table saw; (5) on one occasion Comark warned Diaz in writing about not following Comark’s safety policies; (6) Diaz operated the table saw for eight months prior to the accident without any difficulty or incidents; (7) Diaz never asked for additional assistance or training in operating the table saw; and (8) the table saw was in good working order.

However, Diaz executed an affidavit opposing Comark’s motion. Diaz averred: (1) Comark never instructed him on the use of the table saw; (2) Comark read one part of the safety policy and one part of the company rules to him, but told him “to just sign [his] name so [he] could begin working” when he asked to have the remainder of the documents read; (3) Comark never held daily safety meetings in English and Spanish; (4) safety meetings, to Diaz’s knowledge, were held monthly, not daily; (5) Diaz did not know of any Comark employee who was ever given a written warning for violating a safety policy before the time of his injury; (6) the table saw was not working properly, which caused saw dust to be pushed backwards toward the operator; (7) there was no non-slip surface around the saw; (8) Comark “does not enforce clean up procedures throughout the day, instead all employees will clean up the area at 4:15 pm every workday;” (9) Comark changed the clean up procedures on days when inspectors came; and (10) the written warning referred to in Clayton’s affidavit took place sometime after the accident.

Evidence which favors the movant’s position is not considered unless it is uncontradicted. Great Am. Reserve Ins. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 480 (Tex.App.—Dallas 1995, writ denied). Clayton’s affidavit is contradicted, point by point, by Diaz’s affidavit. Therefore, we do not consider it in determining whether the summary judgment was proper.

Clayton also attached an “Employee Disciplinary Report” to his affidavit. The report was a warning to Diaz for failing to wear his safety glasses. The report states it is Diaz’s first “offense” and is dated March 14, 1997, more than two years after he was injured while using the table saw. Whether Diaz wore safety glasses on March 14, 1997 does not tend to show his actions were the sole proximate cause of an injury that occurred over two years earlier, when Diaz slipped on saw dust and fell into a table saw.

Applying the appropriate standard of review, see Nixon, 690 S .W.2d at 548–49, we find a fact issue exists as to whether Comark breached its duty to provide Diaz with a safe work place and, if so, whether Comark’s breach was a proximate cause of his injuries. Accordingly, the trial court erred by granting summary judgment for Comark on the ground that Diaz’s conduct was the sole proximate cause of his injury. We sustain Diaz’s first point of error as it applies to his negligence claim.

No–Evidence Contention On Negligence Claims

*6 In his second point of error, Diaz contends that Comark did not meet its summary judgment burden of proof under Texas Rule of Civil Procedure 166a(i), which governs no-evidence motions. A no-evidence summary judgment is essentially a pretrial directed verdict; therefore, we apply the same legal sufficiency standard of review. General Mills Restaurants v. Texas Wings, Inc., 12 S.W.3d 827, 832–33 (Tex.App.—Dallas 2000, no pet.); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.—Austin 1998, no pet.). Thus, our task as an appellate court is to determine whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. General Mills Restaurants, 12 S.W.3d at 833. If the non-movant is unable to produce enough evidence, the trial court must grant the motion. Tex.R.Civ.P. 166a(i); General Mills Restaurants, 12 S.W.3d at 832; Lampasas v. Spring Ctr., 988 S.W.2d 428, 433 (Tex.App.—Houston [14th Dist.] 1999, no pet.).

In response to Diaz’s negligence allegations, Comark’s summary judgment motion contended Diaz had no evidence that: (1) Comark owed Diaz a duty, (2) Comark breached any duty owed, or (3) any breach of duty by Comark was the proximate cause of Diaz’s injuries. As discussed above, the evidence is undisputed that Comark employed Diaz, and thus owed Diaz a duty to provide a safe work place. See Leitch, 935 S.W.2d at 117; Werner, 909 S.W.2d at 869; Farley, 529 S.W.2d at 754. Also as discussed above, Diaz’s evidence raised a genuine issue of material fact as to whether Comark breached this duty and, if so, whether its breach was the proximate cause of Diaz’s hand injury. Accordingly, the trial court’s grant of a no-evidence summary judgment on Diaz’s negligence claims was improper. See Tex.R.Civ.P. 166a(i); General Mills Restaurants, 12 S.W.3d 832–33; Jackson, 979 S.W.2d at 70. We sustain Diaz’s second point of error as it applies to his negligence claims.

Products Liability Claim

In addition to pleading negligence, Diaz alleged a strict liability claim under section 402A of the Restatement (Second) of Torts. No part of Comark’s motion for summary judgment discussed Diaz’s 402A claim.

A motion for summary judgment shall state the specific grounds therefor. Tex.R.App.P. 166a(c). The motion must “stand or fall on the grounds expressly presented in the motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). We may not rely on briefs or summary judgment evidence to determine whether a movant’s grounds are expressly presented in its motion. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997). If a summary judgment grants more relief than requested, it should be reversed and remanded. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993).

On the basis of Comark’s summary judgment motion, the trial court entered a final judgment that Diaz take nothing on his claims against Comark. However, the trial court improperly granted summary judgment against Diaz’s 402A claim, which was not addressed in Comark’s motion. Therefore, we sustain Diaz’s first point of error as it applies to his products liability claim. See Mafrige, 866 S.W.2d at 591; McConnell, 858 S.W.2d 341.

*7 A no-evidence motion for summary judgment “must state the elements as to which there is no evidence.” Tex.R.Civ.P. 166a(i). Comark’s no-evidence motion does not reference Diaz’s products liability claim and fails to identify any element of Diaz’s 402A cause of action about which it contends there is no evidence. Therefore, we sustain Diaz’s second point of error as it applies to his products liability claim. See Tex.R.Civ.P. 166a(i).

Conclusion

Because of our disposition of Diaz’s first and second points of error and Comark’s cross-point, we need not address Diaz’s third point of error. See Tex.R.App.P. 47.1. For the reasons set forth above, we reverse the trial court’s judgment and remand this cause for further proceedings.