Court of Appeals of Texas, Dallas.
Barbara BALL, Appellant,
Alice M. YOUNGBLOOD, Appellee.
Aug. 21, 2001.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc–98–11681–d.
Before THOMAS,1 Chief J., and MOSELEY, JJ.
*1 In one issue, appellant Barbara Ball (“Ball”) asserts the trial court erred in granting a “no evidence” summary judgment in favor of her employer, appellee Alice M. Youngblood (“Youngblood”). We agree Bell presented evidence raising genuine issues of material fact on the challenged elements of her negligence cause of action. Therefore, we reverse the trial court’s judgment and remand this cause for further proceedings.
Ball sued Youngblood for damages, alleging she injured her back in the course of her employment with Youngblood, and that Youngblood’s negligence proximately caused her injury. Ball also alleged that Youngblood was a non-subscriber under the Texas Workers’ Compensation Act. See TEX. LAB.CODE ANN. § 406.033 (Vernon 1996).
Youngblood moved for a “no evidence” summary judgment on Ball’s claim, expressly asserting eleven grounds challenging specific elements of Ball’s claim. See TEX.R. CIV. P. 166a(i). The trial court granted Youngblood’s motion in its entirety and entered a “take nothing” judgment against Ball. Ball timely appealed.
THE SUMMARY JUDGMENT RECORD
Before addressing the summary judgment evidence and the substantive issues, we first address the parties’ arguments concerning what pleadings and summary judgment evidence is properly before us. Youngblood’s summary judgment motion was based on Ball’s original petition, but Ball filed an amended petition seven days before the summary judgment hearing. Youngblood moved to strike the amended petition alleging unfair surprise. See TEX.R. CIV. P . 63. However, the trial court did not rule on Youngblood’s motion. Because it was not necessary for Ball to obtain the trial court’s permission to file an amended petition, and the trial court did not strike it as a surprise to Youngblood, we conclude Ball’s amended petition was her live pleading at the time of the summary judgment ruling. See id.
Despite basing her motion on “no evidence” grounds, Youngblood attached the entire transcript of Ball’s deposition as an exhibit to her summary judgment motion. Ball’s response to Youngblood’s motion relied on her deposition transcript, her own affidavit, and some of Youngblood’s responses to written discovery. In her reply, Youngblood objected to Ball’s reliance on the deposition transcript Youngblood had attached to her motion because Ball did not attach another copy to her response. Youngblood also objected to certain portions of Ball’s affidavit as “pure conjecture and hearsay” and speculative “unsubstantiated factual conclusions.” The record does not contain an express ruling on Youngblood’s objections.
Citing Frazier v. Yu, 987 S.W.2d 607 (Tex.App.—Fort Worth 1999, pet. denied), Youngblood argues the trial court implicitly sustained her objections to Ball’s evidence. Ball argues the objections were not sustained and, alternatively, were improperly sustained. We agree with Ball that the objections were not sustained.
*2 In Frazier, the trial court granted a “no evidence” summary judgment after the movant filed written objections claiming the nonmovant’s affidavits were incompetent summary judgment evidence. Id. at 608. The judgment stated the trial court had reviewed “all competent summary judgment evidence.” (Emphasis added.) The appellate court in Frazier held the new subsection 2(A) of the current appellate rule 33.1(a), which allows implicit rulings to preserve error, is a substantive revision of former rule 52(a). Id. at 610. “Thus, error is preserved as long as the record indicates in some way the trial court ruled on the objection expressly or implicitly.” Id. According to our sister court, the trial court’s use of the word “competent” in describing the evidence reviewed “creates an inference that the court implicitly sustained [the movant’s] objections.” Id.
We need not decide whether Frazier correctly interprets the new rules because the facts of that case are distinguishable from those before us. The summary judgment in this case does not contain the qualified phrase “competent summary judgment evidence”; rather, it states: “After consideration of the evidence, the law, and the argument, the Court is of the opinion that the Motion should be granted in its entirety.” Thus it omits the qualifying language that the Fort Worth court or appeals construed in Frazier as the basis for inferring that the trial court sustained an objection to the summary judgment evidence. See id. Our review of the record reveals no other indication the trial court ruled on Youngblood’s objections, and she has not cited us to any. We conclude the trial court did not implicitly rule on Youngblood’s objections. Therefore, the affidavits and exhibits, including Ball’s deposition transcript, were properly before the trial court. To the extent Youngblood’s objections are to the form of the affidavits, the objections are not preserved for our review. See W.H.V., Inc. v. Assocs. Hous. Fin., LLC, 43 S.W.3d 83, 86 n. 1 (Tex.App.—Dallas 2001, pet. denied). Moreover, because Youngblood has not otherwise argued before this Court a deficiency of substance as to any of the summary judgment evidence, we consider the affidavits and exhibits in reviewing the propriety of the trial court’s judgment. See id.
STANDARD OF REVIEW
When a motion is presented under Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 624, 626 & 627 (Tex.1996).
*3 Considering all the evidence in the light most favorable to Ball, and disregarding all contrary evidence and inferences, see Parkinson’s disease. Ball never received any training on how to pick up patients, or any safety rules or regulations. While Ball was lifting Youngblood from her bed to her wheelchair, Youngblood suddenly and without warning let go of Ball, raised her feet off the floor, and reached to her left to retrieve her glasses off the night stand. As a result of Youngblood’s movements, Ball lost her balance and fell to the floor, with Youngblood landing on top of her. Ball then picked Youngblood up and placed her in the wheelchair. At that point, Ball felt a severe pain along her entire back. Youngblood had been asked before not to lift her feet off the floor or let go from around Ball’s neck during a lift, and Ball made this request again immediately prior to the lift that resulted in their fall. Youngblood had never reached for her glasses like that while being picked up. In Ball’s opinion, the incident “would not have occurred” and she “would not have been injured” if someone else had been hired to assist her.
While addressing the contents of the record, we feel constrained to address a repeated misstatement occurring throughout Youngblood’s brief. In its discussions concerning the existence and breach of any duties, Youngblood repeatedly characterizes Ball’s case as an attempt to impose liability for actions that are the exhibited symptoms of Parkinson’s disease.
Youngblood’s motion asserted there was no evidence Youngblood: (1) breached any duty of care to Ball; (2) owed or breached a duty to Ball to maintain a safe work environment; (3) owed or breached a duty to Ball to provided appropriate training; (4) owed or breached a duty to Ball to provide an appropriate number of employees to assist in transferring Youngblood from bed to wheelchair; (5) owed or breached a duty to Ball to warn Ball Youngblood was going to engage in movements that would cause injury to Ball; (6) moved in a manner to cause Ball and Youngblood to fall; (7) has lost all common law defenses as a workers’ compensation non-subscriber.
An employer is not an insurer of its employee’s safety at work. id. at 868. To establish negligence, evidence must be produced to establish a legal duty, a breach of that duty, and damages proximately caused by the breach. Id. In her sole issue on appeal, Ball asserts the trial court erred in granting summary judgment because she presented competent summary judgment evidence creating a fact issue as to each of these elements. We will address each of Youngblood’s grounds for summary judgment in the context of these elements of Ball’s cause of action.
A. Existence of Duties
*4 In four of the eleven grounds for summary judgment, Youngblood challenged the existence of any duties she owed to Ball. Specifically, Youngblood alleged she owed no duty to Ball to: (1) maintain a safe work place; (2) provide appropriate training; (3) provide a certain number of employees to assist in her transfer from bed to a wheelchair; or (4) warn that Youngblood was going to engage in movements that would cause injury to Ball. Ball argues, however, that because she presented evidence of an employer-employee relationship between herself and Youngblood, she presented more than an a scintilla of probative evidence raising a material fact issue as to the existence of these duties. We agree with Ball.
Whether Ball was Youngblood’s employee is not in serious dispute. The record is replete with evidence that Ball was employed by Youngblood; such evidence includes Ball’s affidavit, as well as Youngblood’s responses to Ball’s requests for admissions and interrogatories. We conclude Ball presented more than a scintilla of evidence on whether a general employer-employee relationship existed between Youngblood and Ball.3
The law imposes on employers several non-delegable duties towards its employees. Those duties include the duties “to provide rules and regulations for the safety of its employees, to furnish safe machinery and instrumentalities, to furnish a safe place to work, and to select careful and competent fellow servants.” Collins v. Pecos & N.T Ry. Co., 110 Tex. 577, 581, 212 S.W. 477, 478 (Tex. Com.App.1919, judgm’t adopted). If, from the services required and the manner of their performance, some injury may result to the employee, the employer has the duty to exercise such care as required by the relationship. Id.
Because Ball presented more than a scintilla of evidence that she was Youngblood’s employee, she raised issues of material fact regarding whether Youngblood owed her a duty to: (1) maintain a safe work place; (2) provide appropriate training; (3) provide a certain number of employees to assist in her transfer from bed to a wheelchair; or (4) warn that Youngblood was going to engage in movements that would cause injury to Ball. Accordingly, the trial court could not have properly granted summary judgment on the four grounds attacking a lack of duty.
B. Breach of Duty
*5 In five of Youngblood’s eleven grounds for summary judgment, she asserted there was no evidence that she breached a duty owed to Ball. Specifically, Youngblood asserted there was no evidence that she breached any duty to Ball to: (1) maintain a safe work place; (2) provide appropriate training; (3) provide a certain number of employees to assist in her transfer from bed to a wheelchair; (4) warn that Youngblood was going to engage in movements that would cause injury to Ball. She also contended there was no evidence that she breached a general duty of care towards Ball. We need not address these arguments at length. The summary judgment evidence, summarized above, constitutes more than a scintilla of probative evidence raising a genuine issue of material fact as to whether Youngblood breached those duties. Thus, the trial court could not have granted summary judgment on any of Youngblood’s five grounds attacking the lack of evidence of a breach of duty.
C. Damages Proximately Caused by Breach of Duty
One of Youngblood’s grounds for summary judgment was that there was “no evidence that Alice Youngblood moved in such a manner as to cause Plaintiff and Defendant to fall.” Ball contends the trial court erred in granting summary judgment because she produced probative evidence raising a genuine issue of material fact as to, inter alia, whether Youngblood moved in such a manner as to cause the fall. Youngblood argues that Ball failed to adduce such evidence of proximate cause and, because her appellate brief did not attack that ground supporting summary judgment, we must affirm. In her reply brief, Ball argues Youngblood’s motion for summary judgment did not put proximate cause at issue, and thus that she was not required to present evidence on that element of her claim; alternatively, she argues there is sufficient evidence in the record to create a material issue of fact on that element.
First, Youngblood’s motion asserted there was no evidence that she moved in such a manner as to cause the fall. Thus, Youngblood challenged whether her actions were a cause-in-fact of Ball’s damages, which is a component of proximate cause. See TEX.R. CIV. P. 166a(i).
Second, Ball presented ample evidence to raise an issue of material fact as to whether Youngblood’s acts were a cause-in-fact of the fall and her resulting injuries. Ball’s burden was to “only prove the greater probability ... that the defendant’s conduct was a cause of the accident.” El Chico, 732 S.W.2d at 313. A fair reading of Ball’s sworn deposition testimony indicates the “momentum” resulting from Young’s unexpected lifting of her feet and reaching for the glasses caused them to fall to the floor during the lift. Further, Ball’s affidavit expressly avers that “Youngblood’s actions caused us both to fall to the floor.”
*6 Lastly, we disagree with Youngblood as to whether Ball waived any attack on this ground for summary judgment. Ball’s appellate brief asserts, as its sole issue, that “[t]he trial court should not have granted [Youngblood’s] motion for summary judgment.” We find this wording is sufficient to allow argument as to all possible grounds upon which summary judgment should have been denied. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). Although Ball’s appellate brief takes the position that issues related to “proximate cause” were not raised by Youngblood’s motion, her reply brief responds to Youngblood’s contention that summary judgment was proper because Ball presented no evidence that Youngblood’s actions were the cause-in-fact of her injuries, and addresses this argument at length.
EXCLUSION OF AFFIRMATIVE DEFENSES
The last ground asserted in Youngblood’s motion for summary judgment was that there was no evidence that she had lost any of her common-law affirmative defenses. Youngblood’s affirmative defenses, however, were not at issue in this “no evidence” motion for summary judgment. See Cates, 927 S.W.2d at 624, 626 & 627 (same).
We conclude the summary judgment record contains more than a scintilla of probative evidence to raise an issue of material fact concerning whether Youngblood owed Ball several duties, whether Youngblood breached some, if not all, of those duties and whether Youngblood’s actions were the cause-in-fact of Ball’s injuries. We resolve Ball’s sole issue on appeal in her favor. Accordingly, we reverse the trial court’s judgment and remand this cause for further proceedings.
The Honorable John R. Roach, Retired, Court of Appeals, Fifth District of Texas at Dallas was a member of the original panel and participated in the submission of the case. Due to his retirement from the Court on June 30, 2001, J. Roach did not participate in the issuance of this opinion. The Honorable Linda B. Thomas, Chief Justice, has reviewed the record and the briefs in this case.
In its Summary of the Argument, Youngblood’s brief asserts: “The trial court was correct in granting summary judgment because there is no duty for a Parkinson’s patient to warn her health assistant that she may be about to exhibit a symptom of Parkinson’s disease-an involuntary jerk or movement.”
In a heading for one of its arguments, Youngblood’s brief characterizes the issue as “No Evidence of a Duty to Refrain From or Warn of Imminent Jerking.” Within that discussion Youngblood’s brief states: “There is no duty of a Parkinson’s patient to refrain from jerking or to tell her aide she is about to make a movement. As Ball herself admitted, the tremors and jerking of Parkinson’s disease are not something Youngblood could control. Certainly the law would not impose a duty upon her if such were the case.” (Emphasis omitted.) Another heading characterizes part of the discussion as “No Evidence of Breach of Duty to Warn of Jerking Movements.”
Yet another section of Youngblood’s brief characterizes the “operative facts” of the case as “a Parkinson’s patient had a jerking motion that caused her aide to lose her balance.”
We agree with Youngblood, however, that whether Youngblood was an “employer” and Ball was an “employee” under the workers’ compensation act, see 401.012 (Vernon 1996 & Supp.2001), is not material to this appeal. Accordingly, we express no opinion on those issues.