Court of Appeals of Texas, Houston (1st Dist.).

Corine SLOCOMB and Hazel Jean Billups, Appellants,

v.

C.W. HANSLIP and Thelma Caldwell Hanslip Trust, Appellees.

No. 01-99-01421-CV.

|

March 29, 2001.

Panel consists of MIRABAL, NUCHIA, and PRICE,² JJ.

OPINION

MIRABAL.

*1 Plaintiffs, Corine Slocomb and Hazel Jean Billups, appeal from a summary judgment granted in favor of defendants, C.W. Hanslip and Thelma Caldwell Hanslip Trust. In three issues, plaintiffs assert the trial court erred in granting summary judgment. We affirm.

FACTS

The following facts are undisputed:

(1) Plaintiffs are licensed vocational nurses (LVN). Billups, who was 66-years old at the relevant time, had been an LVN for over 40 years. In addition to being an LVN in Texas, 69-year-old Slocomb was a registered nurse in England. As part of their basic LVN training, plaintiffs learned to lift patients, transfer patients to and from wheelchairs, and prevent patients from falling. Plaintiffs furthered this training by taking continuing education courses; Slocomb took a course in senior citizen care. Over the course of their careers, plaintiffs have cared for Parkinson’s patients and worked with “difficult” patients.

(2) Defendant Hanslip is an elderly, 128-pound woman with Parkinson’s disease that is marked by unpredictable shaking and weakness of the muscles.

(3) Defendants do not carry workers’ compensation insurance.

(4) Defendants hired plaintiffs to care for Ms. Hanslip in her home. Plaintiffs’ duties included: weighing Ms. Hanslip; checking Ms. Hanslip’s vital signs and urine; feeding and medicating Ms. Hanslip; helping Ms. Hanslip walk; moving Ms. Hanslip to and from her bed; and transferring Ms. Hanslip to and from her wheelchair.

(5) For LVNs, the transfer of a patient from a bed to a wheelchair is a routine task for which they are trained and which is governed by standardized procedures.

(6) Billups knew Ms. Hanslip had Parkinson’s disease, and Slocomb had, on several occasions, seen Ms. Hanslip shake.

(7) On the date of the incident, plaintiffs tried to move Ms. Hanslip from the bed to the wheelchair. Slocomb put her arms around Ms. Hanslip’s waist and placed her foot between Ms. Hanslip’s legs; Billups grabbed Ms. Hanslip. During the transfer, Ms. Hanslip fought plaintiffs’ efforts to help her and did not follow their instructions. At some point, Ms. Hanslip began shaking, and then she “all of a sudden … got stiff and dropped.” Plaintiffs, along with Ms. Hanslip, fell to the floor beside the bed.

(8) Billups suffered a central disk herniation and bulging disk, and Slocomb injured her knee. Both injuries required surgery.

Plaintiffs sued defendants for negligence, alleging defendants had a nondelegable duty to provide (1) proper equipment, (2) sufficient staffing, and (3) a safe workplace, but failed to do so.

Defendants moved for summary judgment on the ground that, based on the undisputed facts, plaintiffs could not prove one or more essential elements of their claim of negligence, and there were no genuine issues of material fact. They alleged that “both plaintiffs’ and defendants’ failure to foresee the possibility of injury in a situation involving the performance of a routine nursing task bars plaintiffs’ claim against defendants as a matter of law.” Their motion for summary judgment reads, in part:

*2 … Texas courts … [provide] a list of factors, which, if met, will defeat an employee’s claim of negligence against an employer. These factors have clearly been met in the instant case. Specifically, plaintiffs Billups and Slocomb: (1) were allegedly injured performing a routine task for LVNs-a task for which they were trained and instructed on proper procedure; (2) had performed this same character of work for several months before their alleged injuries without complaint and without suffering any harm by so doing; (3) had never requested from defendants any type of equipment to assist in performance of their duties, and Slocomb testified she did not bring her own lifting belt because she did not need it for this job; (4) had an adequate workforce of two LVNs simultaneously caring for Ms. Hanslip which was provided at Ms. [Billups’s] request; and (5) testified that they did not believe transferring Ms. Hanslip from a bed to a wheelchair was potentially dangerous.

…

Taking these factors together, the Texas courts have consistently rejected an employee’s negligence claim against an employer, as a matter of law, because the employer could not have foreseen such an injury. Coupled with the facts that Ms. Hanslip was elderly, slowed by the effects of Parkinson’s Disease and a stroke, and did not instruct plaintiffs in how to transfer her, Defendants could not foresee the possibility of such injury. Therefore, Defendants are entitled to summary judgment in this case.

Defendants further asserted that plaintiffs did not provide evidence connecting their injuries to the alleged negligence, and, therefore, they failed to establish proximate causation. Defendants’ summary judgment evidence consisted of portions of plaintiffs’ deposition testimony.

Plaintiffs responded that (1) defendants failed to prove their injuries were not foreseeable, and (2) there remained genuine issues of material fact that required jury determination. Plaintiffs’ responsive summary judgment evidence consisted of their own deposition testimony.

Without specifying the grounds upon which it relied, the trial court granted defendants’ motion for summary judgment. On appeal, plaintiffs assert the trial court erroneously granted defendants’ motion for summary judgment because (1) defendants did not carry their summary judgment burdens, (2) the trial court misapplied summary judgment standards, and (3) there are genuine issues of material fact that preclude summary judgment.

STANDARD OF REVIEW

Defendants filed a traditional motion for summary judgment under rule 166a of the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 166a(c). Summary judgment is proper only when the movant proves there is no genuine issue as to any material fact, and it is entitled to judgment as a matter of law. Randall’s Food Mkts ., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st Dist.] 1993, writ denied). When evaluating a motion for summary judgment, we assume all the non-movant’s evidence is true. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). We indulge every reasonable inference in favor of the non-movant. Id. We resolve all doubts about the existence of a genuine issue of any material fact against the movant. Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996). If the movant shows it is entitled to judgment as a matter of law, the non-movant must present evidence raising a fact issue to defeat a motion for summary judgment. Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex.App.-Houston [1st Dist.] 1991, writ denied).

DISCUSSION

*3 Defendants do not carry workers’ compensation insurance, and, therefore, plaintiffs must prove defendants were negligent to recover for their alleged injuries.¹ See Tex.Lab.Code Ann . § 406.033(d) (Vernon 1996); see also Werner v. Colwell, 909 S .W.2d 866, 868 (Tex.1995); Southerland v. Kroger Co., 961 S.W.2d 471, 472 (Tex.App.-Houston [1st Dist.] 1997, no writ). Negligence consists of three elements: (1) a legal duty owed by one person to another, (2) a breach of the duty, and (3) damages proximately caused by the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Southerland, 961 S.W.2d at 472. Proximate cause consists of cause in fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.1996). Though the employer is not an insurer of an employee’s safety at work, the employer does have a duty to use ordinary care in providing a safe work place. Werner, 909 S.W.2d at 869, Southerland, 961 S.W.2d at 472.

Plaintiffs contend the following summary judgment evidence raises a fact issue about the foreseeability of the incident. Because of Parkinson’s disease, Ms. Hanslip would shake unpredictably and lose control of her muscles; her condition worsened over time. Billups stated in her deposition:

[Ms. Hanslip] was weak in her legs sometimes. Sometimes we had [problems] because she would stiffen, tighten, or tighten up and you’d have trouble getting her from the chair to the bed and you’d have trouble getting her from the bed to the chair…. One time I called [another person] … and asked him would he come in and help me put her in the bed because she had tightened up and just buckled up and you couldn’t even get her out of the chair into the bed.

Plaintiffs also point to the following exchange between defense counsel and Billups as evidence of foreseeability:

Q: Miss Hanslip in her state that she was in the night that this accident happened, do you think she could have foreseen that her legs were going to give out that way and that she would have fallen the way that she did?

….

A: She could have felt her legs getting weak and reached to grab for something. I imagine that’s why she was reaching for the wheelchair.

The law is clear that, in cases like this, when it is uncontroverted that the lifting involved is not unusual and does not pose an increased threat of injury, there is no negligence as a matter of law. Werner, 909 S.W.2d at 869; Great Atlantic & Pacific Tea Co. v. Evans, 175 S.W.2d 249, 251 (Tex.1943); Southerland, 961 S.W.2d at 473. The evidence shows plaintiffs were performing the usual, normal work required of them at the time of the incident. Defendants hired plaintiffs to care for an elderly woman with Parkinson’s disease. Plaintiffs were experienced, knew how to transfer patients and prevent falls, and had, in the past, cared for Parkinson’s patients and worked with difficult patients like Ms. Hanslip. During their employment by defendants, Billups knew that Parkinson’s disease caused Ms. Hanslip to shake and lose muscle control; Slocomb had seen Ms. Hanslip shake, even though she did not know Ms. Hanslip had Parkinson’s disease. Even as Ms. Hanslip’s condition worsened, plaintiffs had, many times before, transferred Ms. Hanslip from the bed to the wheelchair without incident.

*4 As to plaintiffs’ claim that defendants were negligent for not providing proper equipment, the evidence shows that plaintiffs, who were trained professionals, never requested any equipment (such as lifting belts or bed rails). Slocomb herself owned a lifting belt, but never took it to Ms. Hanslip’s home because she did not believe she needed it to do her job.

Regarding plaintiffs’ claim that defendants did not provide sufficient staffing, the evidence shows that, on one occasion, Billups had trouble with a transfer and requested help. Two nurses were thereafter hired to be on duty to care for Ms. Hanslip. No other requests for additional staff were ever made. Slocomb never even had to ask for help because she was capable of making the transfer herself.

Plaintiffs contend that Southerland is distinguishable from the facts of this case, and, therefore, it is not controlling. See Southerland, 961 S.W.2d at 471. Plaintiffs emphasize the evidence that they were significantly older than the plaintiff in Southerland. See id. at 473. We are not persuaded by plaintiffs’ contention because the test is not age, physical strength, or the weight of the object lifted; rather, the proper test is whether the work involved is unusual and poses an increased threat of injury, which we have found is not case here. Werner, 909 S.W.2d at 869; Evans, 175 S.W.2d at 251; Southerland, 961 S.W.2d at 473. Plaintiffs also contend that, unlike Southerland, the lifting in this case was unusual because Ms. Hanslip was, at the time of the incident, (1) struggling and fighting plaintiffs’ efforts to transfer her from the bed to the wheelchair, and (2) refusing to follow plaintiffs’ instructions; then, she suddenly “got stiff and dropped.” This argument is likewise not convincing, in light of the evidence showing plaintiffs were merely working in the manner required by the character of the business in which defendants employed them. Werner, 909 S.W.2d at 869; Evans, 175 S.W.2d at 251.

Plaintiffs also distinguish Werner and Evans on the basis that they, unlike the instant case, involve “full-blown” jury trials. See Werner, 909 S.W.2d at 866; Evans, 175 S.W.2d at 249. Relying on Werner and Evans, this Court, in affirming summary judgment, has nevertheless held that, as long as the evidence shows the lifting involved is not unusual and does not pose an increased threat of injury, there is no negligence as a matter of law. Southerland, 961 S.W.2d at 473.

Considering the uncontroverted evidence that plaintiffs were hired for in-home care of an elderly woman whom they knew had Parkinson’s disease, that plaintiffs had been doing their jobs without difficulty or complaint for some time, and that plaintiffs were performing their usual work at the time of the incident, we conclude the trial court properly granted defendants’ motion for summary judgment. We overrule plaintiffs’ issues.

*5 We affirm the judgment.

	Footnotes
2		The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
1		Because defendants are “non-subscribers” under Texas Workers’ Compensation law, defendants could not assert as a defense that (1) plaintiffs were guilty of contributory negligence, or (2) plaintiffs assumed the risk of injury. See Tex.Lab.Code Ann. § 406.033(a) (Vernon 1996).