Court of Appeals of Texas, Dallas.

Carla SPARKS, Appellant,

v.

BUTLER MANUFACTURING COMPANY d/b/a Vistawall, Appellee.

No. 05-99-00115-CV.

|

Nov. 22, 1999.

Before Justices KINKEADE, OVARD, and WHITTINGTON.

OPINION

KINKEADE, Justice.

*1 Carla Sparks, as next friend of Staffon Kennedy, appeals a summary judgment rendered in favor of Butler Manufacturing Company d/b/a Vistawall (“Butler”) on her claims of negligence and gross negligence in the death of David Kennedy, Jr., the father of Staffon Kennedy. On appeal, Sparks contends the trial court erred in granting Butler’s motion for summary judgment because: (1) Butler failed to establish there had been adequate time for discovery as required by Texas Rule of Civil Procedure 166a(1); and (2) Sparks presented sufficient summary judgment proof to raise a fact issue as to whether Butler acted with gross negligence in the death of David Kennedy, Jr. Because we conclude Sparks presented no evidence that Butler’s actions involved an extreme degree of risk and that Butler was aware its actions involved an extreme degree of risk, and because Butler did not have the burden to establish whether there had been adequate time for discovery, we affirm the trial court’s judgment.

Factual Background

In July of 1994, David Kennedy, Jr., a plant technician for Butler, a manufacturer of architectural products, died while operating a forklift that overturned. Carla Sparks, as next friend of Kennedy’s minor son, filed suit against Butler and the manufacturer of the forklift, Yale Materials Handling Corporation (“Yale”), alleging simple negligence and gross negligence causes of action. Butler filed a motion for summary judgment that the trial court granted. Butler then filed a motion to sever Spark’s claims against Yale. The trial court granted the severance, and Sparks appeals from the summary judgment in favor of Butler.

Standard of Review

The standards for reviewing summary judgments are well established. See Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Texas Rule of Civil Procedure 166a(i), known as the no-evidence summary judgment rule, provides that, after adequate time for discovery, a party may move for summary judgment as to all or part of a lawsuit on the grounds that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). A no evidence motion for summary judgment places the burden on the nonmovant to present enough evidence to go to trial. Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The nonmovant “is not required to marshal its proof,” but is required to point out the evidence that establishes a question of fact. Bomar v. Walls Regional Hosp., 983 S.W.2d 834, 840 (Tex.App.-Waco 1998, no pet. h.). If the nonmovant cannot produce evidence on one or more essential element of his claim, the court must grant the summary judgment. See Tex.R.Civ.P. 166a(i). If a trial court’s order granting the motion for summary judgment does not state the specific grounds on which it was based, we affirm the summary judgment if any of the movant’s grounds support the judgment. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Negligence

*2 In her brief, Sparks concedes, and we agree, that Sparks’s claims for simple negligence are barred as a matter of law by section 408.001 of the Texas Labor Code. Section 408.001 provides that an employer who subscribes to workers’ compensation insurance is not subject to simple negligence claims based upon an employee’s work related injury or death. Tex.Lab.Code Ann. § 408.001 (Vernon 1996); Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983). The record establishes that Kennedy was covered by Butler’s workers’ compensation insurance policy at the time of his death. Therefore, the trial court did not err in granting summary judgment in favor of Butler on Sparks’s negligence cause of action.

Gross Negligence

Sparks contends she presented enough proof of Butler’s gross negligence to defeat Butler’s “no evidence” summary judgment motion. Butler responds that Sparks produced no competent evidence that Butler acted with gross negligence. We agree with Butler.

To recover on a claim for gross negligence, a plaintiff must establish (1) that the defendant’s actions involved an extreme degree of risk, and (2) the defendant was subjectively aware that its actions involved an extreme degree of risk and nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex.1998).

Sparks relies solely on her expert’s affidavit to raise a fact issue as to gross negligence. James T. Knorpp, the owner of Knorpp Safety Services, testified by affidavit that the failure of Butler to provide a safe work environment for Kennedy, specifically, Butler’s failure to supervise Kennedy, provide safe forklift roadways, and adequate illumination, was a contributing factor to Kennedy’s death. He then stated that “[t]he failure to provide these items in the workplace rise (sic) to the level of conscious indifference to the health and safety of Decedent which rose to the level of gross negligence at the time of his death.” Nothing in the affidavit explains how Butler failed to supervise Kennedy, provide safe forklift roadways and adequate illuminations, or on what information Knorpp relied in making his conclusions. Further, the affidavit does not explain why, even if all the statements were true, Butler’s actions involved an extreme degree of risk, nor does it provide any evidence that Butler was aware its actions involved an extreme degree of risk. The statement is nothing more than a legal conclusion that does not provide the underlying facts to support the conclusion. See Rizkallah v. Connor, 952 S.W.2d 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (“statements of legal conclusions amount to little more than the witness choosing sides on the outcome of the case”). An expert’s conclusory affidavit is not enough to raise fact issues. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996).

Although Sparks contends we cannot address Butler’s argument that Knorpp’s affidavit is conclusory because Butler did not object on this basis at trial, we disagree. Because an objection that an affidavit states only a legal conclusion relates to a defect in substance, such an objection may be raised for the first time on appeal. Rizkallah, 952 S.W.2d at 587; Ramirez v. Transcontinental Ins. Co., 881 S.W.2d 818, 829 (Tex.App.-Houston [14th Dist.] 1994, writ denied).

*3 We therefore conclude Sparks offered no summary judgment evidence that Butler’s actions involved an extreme degree of risk or that Butler was aware its actions involved an extreme degree of risk. The trial court did not err in granting summary judgment on Sparks’s gross negligence claim.

Adequate Time for Discovery

Sparks also contends that the summary judgment was not proper because Butler did not produce any evidence to show that there had been “adequate time for discovery” as required by Rule 166a(i). Butler argues, and we agree, that Sparks incorrectly places the burden on Butler to prove adequate time for discovery. The Texas Supreme Court has stated that when a party contends it did not have an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); see also Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 n. 2 (Tex.App.-Austin 1998, no writ) (although issue was not before the court, court noted that nonmovant neither objected that there was inadequate time for discovery nor did she file a motion for continuance requesting additional time for discovery in response to a no-evidence summary judgment motion). Further, the record reflects that the trial court in this case did not grant summary judgment until more than two years after Sparks filed suit. We conclude Sparks did not show there was inadequate time for discovery.

We affirm the trial court’s judgment