Court of Appeals of Texas, Dallas.

Michael WOMACK, Appellant,

v.

MESA PROCESSING, INC., Appellee.

No. 05-97-01413-CV.

|

Nov. 24, 1999.

Before Justices OVARD, JAMES, and BRIDGES.

OPINION

JAMES, Justice.

*1 Michael Womack appeals the trial court’s order granting summary judgment in favor of Mesa Processing, Inc. (Mesa) on his negligence cause of action. In his sole point of error, Womack contends the trial court erred in granting summary judgment because Mesa failed to establish as a matter of law it did not breach its duty as an employer to use ordinary care to provide a safe work place. We note that Mesa did not file a brief. We conclude the trial court erred in granting Mesa’s motion for summary judgment. Therefore, we sustain appellant’s sole point of error, reverse trial court’s judgment, and remand this case to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Womack was employed by Mesa as a machine operator in its Dallas plant. Womack alleges that during the course and scope of his employment, he tripped over some hoses laying across a greasy floor in the plant, and injured himself. Womack brought a negligence action against Mesa to recover his damages. Mesa filed an answer and pled the affirmative defenses of contributory negligence, third-party negligence and unavoidable accident.

Mesa filed a motion for summary judgment claiming: (1) it breached no legal duty or obligation owed to appellant; (2) there is no “causative negligence” on Mesa’s part; (3) the hose over which appellant tripped was an open and obvious condition known to appellant for which Mesa had no duty to warn; and (4) even if there is causative negligence, there is no cause in fact and foreseeability. Mesa concluded there were no genuine issues of material fact and it was entitled to judgment as a matter of law. Mesa’s summary judgment evidence consisted of Womack’s responses to Mesa’s interrogatories, Womack’s deposition testimony, and the deposition testimony of Mesa’s plant manager, Gregory Keith Gardner.

In response to Mesa’s summary judgment motion, Womack argued Mesa owed a duty to provide a safe work place and Mesa breached this duty. Womack points to Mesa’s own summary judgment evidence and the deposition testimony of Gardner that the hoses had been on the floor for some time. Womack also included his own affidavit stating he had previously informed Gardner of the dangerous condition.

The trial court granted Mesa’s motion for summary judgment. Womack filed a motion for new trial, which was denied by the trial court, and thereafter perfected this appeal. In his sole point of error, Womack contends the trial court erred in granting summary judgment because Mesa failed to establish as a matter of law it did not breach its duty as an employer to use ordinary care to provide a safe work place.

STANDARD OF REVIEW

This Court reviews a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. See Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied), cert. denied, 525 U.S. 904, 119 S.Ct. 240, 142 L.Ed.2d 197 (1998). The standards for reviewing a summary judgment are well established: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and 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; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. See Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex.1985).

*2 If, as here, the order granting a summary judgment does not specify the ground or grounds on which the trial court relied, the nonmoving party on appeal must negate any grounds on which the trial court could have granted the order. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex.1993); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970); see also Banfield v. Laidlaw Waste Sys., 977 S.W.2d 434, 439 (Tex.App.-Dallas 1998, pet. denied); Reese v. Beaumont Bank, N.A., 790 S.W.2d 801, 804 (Tex.App.-Beaumont 1990, no writ). Womack has narrowly framed his point of error on appeal, stating only that Mesa “failed to establish as a matter of law that it did not breach the applicable standard of care.” However, in his brief, Womack addresses each element of a negligence cause of action, including cause in fact and foreseeability. Therefore, Womack has preserved error as to each element of negligence. See Tex.R.App.P. 38.9 (briefing rules to be liberally construed).

EMPLOYER LIABILITY

The record indicates Mesa did not carry workers’ compensation insurance at the time of Womack’s injury. As a “nonsubscriber” under Texas workers’ compensation law, Mesa is responsible for work-related injuries under common-law principles of negligence. See Tex.Lab.Code Ann. § 406.033(d) (Vernon 1996); see also Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995). Thus, to recover for his alleged injury, Womack has the burden of establishing that Mesa was negligent and that its negligence proximately caused his alleged injuries. See id.

The elements of a common law negligence action are: (1) a legal duty owed by one to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998); National Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 148 (Tex.App.-Houston [14th Dist.] 1999, no pet. h.). The existence of a duty is a threshold question of law. See id. Although an employer is not an insurer of the employee’s safety at work, an employer does have a duty to use ordinary care in providing a safe work place. Werner, 909 S.W.2d at 869.

Proximate cause consists of two elements, cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 197 (Tex.App.-Amarillo 1999, pet. denied). Cause in fact, which may be proven by circumstantial evidence, is established if the negligent conduct was a substantial factor in bringing about the injury, and without it harm would not have occurred. See Travis, 830 S.W.2d at 98. The test for foreseeability is satisfied if a person of ordinary intelligence should have anticipated the danger caused by his negligent conduct. Id.

When the employer does not carry workers’ compensation insurance, it is not a defense that (1) the employee was guilty of contributory negligence, (2) the employee assumed the risk of injury, or, (3) the injury was caused by the negligence of a fellow employee. See Tex.Lab.Code Ann. § 406.033(a) (Vernon 1996); Kroger Co. v. Keng, 976 S.W.2d 882, 888 (Tex.App.-Tyler 1998, pet. granted); Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 547 (Tex.App.-Texarkana 1996, writ denied).

DISCUSSION

*3 To prevail on its summary judgment motion, Mesa had the burden of conclusively negating at least one element of each theory pled by Womack. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Int’l Union UAW Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex.App.-Dallas 1991, writ denied). Mesa, as the employer, had a duty to use ordinary care in providing a safe work place. Werner, 909 S.W.2d at 869. This duty includes providing rules and regulations for the safety of employees, warning employees of the hazards of their employment, and supervising their activities. See National Convenience Stores, 987 S.W.2d at 149. However, an employer has no duty to adopt safety rules where its business is neither complex nor hazardous or where the dangers incident to the work are obvious or are of common knowledge and fully understood by the employee. Id.

Mesa argued in its motion for summary judgment that the hose over which Womack tripped was an open and obvious condition that Womack knew about, thereby negating Mesa’s duty to warn. In effect, Mesa argues that Womack was aware of the dangerous condition and thus assumed the risk of injury. However, as a non-subscriber under Texas Workmen’s Compensation law, Mesa loses the assumption of risk defense. See Tex.Lab.Code Ann. § 406.033(a). We find nothing in the record that conclusively establishes Mesa did not breach its duty to provide a safe workplace. Therefore, we will assume without deciding that Mesa breached its duty with respect to the grease and hoses on the plant floor.

Next, we must determine whether the proximate cause element of appellant’s negligence cause of action against Mesa has been conclusively negated. Our review of the summary judgment evidence indicates a genuine issue of material fact on the element of proximate cause.

The Mesa facility where Womack worked was a grease processing plant. Mesa picks up barrels of grease from restaurants and brings them back to the plant to be processed. The grease is run through a centrifuge system, known as a “Titan” machine, to separate the grease from water and solids. There is a series of hoses hooked up to the Titan where grease and water flow in and out of the barrel. Womack was responsible for operating a Titan. His job was to operate the valves controlling the water pressure into the machine. About every fifteen minutes, it is necessary to clean the inside of the Titan so it does not become clogged. To do this, the operator turns off the machine, lifts the lid, cleans the inside, puts the lid back on and re-starts the machine. Frequently, grease spills on the floor, and the operators are supposed to clean the spills with very hot water.

According to Gardner’s deposition testimony, he did not witness the accident but he spoke to an employee that did. This employee told Gardner that Womack never fell down but just collapsed when he lifted the 15-20 pound lid off the machine. Womack, on the other hand, testified at his deposition that he lifted the lid, took four to five steps to the right, tripped over a hose, stumbled into the wall, then fell to the floor. This conflicting testimony, in and of itself, creates a genuine issue of material fact on the element of proximate cause.

*4 Finally, because Mesa is a nonsubscribing employer under workers’ compensation law, it is deprived of the traditional common law defenses of contributory negligence, assumed risk, and fellow servant negligence. See Tex.Lab.Code Ann. § 406.033(a); Keng, 976 S.W.2d at 891; see also Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 727 (Tex.App.-San Antonio 1999, pet. denied) (interpreting Texas Workers’ Compensation Act as abolishing all traditional common law defenses). Therefore, we conclude the trial court could not have granted summary judgment based on the affirmative defenses pled by Mesa.

CONCLUSION

Mesa, as movant for summary judgment, has not met its burden of showing there is no genuine issue of material fact and therefore was not entitled to judgment as a matter of law. We conclude the trial court erred in granting Mesa’s motion for summary judgment. Accordingly, we sustain appellant’s sole point of error, reverse the judgment of the trial court and remand this case back to the trial court for further proceedings.