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At a Glance:
Burkett v. Welborn
March 1, 2001
42 S.W.3d 282
Published Opinion

Burkett v. Welborn

Court of Appeals of Texas,


Kenneth Harvey BURKETT and Betty Helen Burkett, Appellants,


Rosalie WELBORN, et al., Appellees.

No. 06–00–00047–CV.


Argued Dec. 12, 2000.


Decided March 1, 2001.

Attorneys & Firms

*285 Peter F. Doyle Jr., Atty. at Law, Nederland, for appellant.

John R. Dolezal, Stevens, Baldo & Freeman, LLP, Beaumont, for appellee.

Before ROSS, JJ.


Opinion by Justice ROSS.

Kenneth Burkett (hereafter Burkett) and his wife, Betty, brought this cause of action for negligence against Rosalie Welborn and Leslie Welborn. The suit also named Rosalie Welborn1 in asserting premises liability causes of action. The trial court granted summary judgment in favor of all defendants. The Burketts’ motion for new trial was denied, and they now appeal.

On May 21, 1996, Burkett was injured when he fell and was struck on the head and burned while using a cutting torch to remove and salvage axles from a burned-out trailer home frame. Burkett was performing this task on orders of his supervisor/co-employee, Leslie Welborn, who was responding to a directive by Rosalie Welborn. Burkett was a machinist for Electro–Motor, Inc. Electro–Motor is a family-owned business. The sole shareholder at the time of Burkett’s injury was Rosalie Welborn, who was also president of the company and an employee, although she did not exercise day-to-day control of its operations.

Rosalie Welborn owned the land on which the business was located, leasing it to Electro–Motor. She also lived on an adjacent parcel of property. The salvage and cleanup of the trailer home was done on property that Rosalie Welborn owned individually. The trailer was originally purchased and used by relatives of the *286 Welborns; however, it was later used by Electro–Motor as a storage facility.

Following his injuries, Burkett received workers’ compensation benefits as an employee of Electro–Motor. Burkett now seeks to bring actions in negligence against the Rosalie Welborn defendants and Leslie Welborn, claiming that the circumstances under which he was injured were out of the scope of his employment. Burkett claims that he is not precluded from bringing this suit because his injury was not work related. Burkett contends that his actions in attempting to salvage and clean the trailer home were for the personal benefit of Rosalie Welborn and/or Leslie Welborn and not for Electro–Motor. Burkett also contends that Rosalie Welborn, as owner of the premises on which he was injured, owes him the status of an invitee. Burkett contends that this duty should not be affected by any workers’ compensation recovery since Electro–Motor, not Rosalie Welborn, was his employer. The trial court found that Burkett’s recovery under workers’ compensation was a bar to any tort recovery and granted summary judgment in favor of all defendants.

Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co. ., 690 S.W.2d 546, 548–49 (Tex.1985).

In response to the motions for summary judgment, an affidavit of Burkett was submitted in an attempt to demonstrate factual disputes. Numerous statements in this affidavit contradicted Burkett’s prior deposition testimony. A party cannot file an affidavit that contradicts that party’s own deposition testimony, without explanation, for the purpose of creating a fact issue to avoid summary judgment. Id. Burkett gave no explanation for the discrepancies between his deposition testimony and affidavit. Thus, the affidavit will not be considered as evidence where it conflicts with the prior sworn testimony.

Recovery of workers’ compensation benefits is the sole remedy of an *287 injured employee covered by workers’ compensation insurance against the employer, agent of the employer, or employee of the employer, absent an intentional act to harm or gross negligence by the employer. TEX. Darensburg v. Tobey, 887 S.W.2d 84, 86–87 (Tex.App.—Dallas 1994, writ denied). Burkett contends that workers’ compensation should not be his sole means of recovery due to the fact that the injury occurred outside the scope of his employment. Course and scope of employment is defined as:

[A]n activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations.

TEX. McElhaney v. City of Tyler, 926 S.W.2d 597, 602 (Tex.App.—Tyler 1996, writ denied).

Burkett was employed as a machinist. The work on the trailer home is not typical of a machinist. There is nothing in the statute that specifies title as an aspect of scope of employment. Burkett also testified that he was a jack-of-all-trades and had done other jobs beyond the role of machinist, such as driving a truck, carpentry, and cement work. Burkett testified that he did whatever task was assigned, without complaint, and expected to be paid for the work. Burkett was responding to a directive from Leslie Welborn when he was injured. The work was part of his work day for Electro–Motor, for which he received compensation. The axles to be salvaged were for the use of Electro–Motor. If the injury results from an activity that originates from the employment, and the injury is suffered while the employee is actually engaged in furthering the employer’s business, then the injury is deemed to have been sustained within the course and scope of employment. ESIS, Inc. v. Johnson, 908 S.W.2d 554, 557 (Tex.App.—Fort Worth 1995, writ denied).

Burkett and Leslie Welborn shared supervisory duties on the salvage and cleanup project during which the injury occurred. As a co-employee, Leslie Welborn is exempt from negligence actions by the exclusionary rule. See Porter v. Downing, 578 S.W.2d 460, 461 (Tex.Civ.App.—Texarkana 1979, writ ref’d n.r.e.). Rosalie Welborn was the sole shareholder of Electro–Motor, but she was also president of the corporation and recognized as an employee.

Burkett is correct that neither Rosalie nor Leslie Welborn was his employer, but the task of salvaging the trailer home was for Electro–Motor, although the home was on Rosalie Welborn’s private property. Course and scope of employment is specifically defined as “an activity conducted on the premises of the employer or at other locations.” TEX. LAB.CODE ANN. § 401.011(12).

An injury sustained in the course of employment must originate and have to do with the employer’s work, and must have occurred while engaged in the furtherance of the employer’s business or affairs. Id.

Rosalie Welborn gave the directive to salvage and clean the area of the trailer home. Leslie Welborn relayed this directive to Burkett, and he was subsequently injured. Both Rosalie and Leslie Welborn were acting in their respective capacities as Electro–Motor employees. The trailer home had been used for storage by Electro–Motor. The salvage efforts were for the benefit of Electro–Motor. Any personal gain by Rosalie or Leslie Welborn is inconsequential since both acted in their individual capacities as Electro–Motor employees. By the clear language of the statute, the location of the trailer does not matter to scope of employment. Likewise, Burkett’s title as machinist is not relevant to scope of employment, as his employment entailed multiple nonmachinist tasks. Burkett’s injuries occurred while he was in the scope of his employment. There are no factual discrepancies, and the issue was correctly determined by the trial court as a matter of law to satisfy summary judgment against Burkett. His contentions to the contrary are overruled.

However, Burkett also contends that Rosalie Welborn, as the owner of the premises on which he was injured, owes him the standard of care of an invitee. Burkett argues that the existence of workers’ compensation insurance is not relevant since Rosalie Welborn is not his employer.

The “dual capacity” doctrine states that an employer may be liable to an employee if the employer occupies, in addition to its capacity as employer, a second capacity that confers independent obligations. Id. at 108. However, as previously stated, Rosalie Welborn was not Burkett’s employer. Electro–Motor was Burkett’s employer, and the corporation is not a party to this suit. The corporation did not own the premises on which Burkett was injured. Thus, the rejection of the dual capacity doctrine has no bearing on this suit.

The Rosalie Welborn defendants contend that Texas’ rejection of the “dual capacity” doctrine protects Rosalie Welborn as a co-employee. In this contention, they rely on the express language of TEX. LAB.CODE ANN. § 408.001(a):

Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer or an agent or employee of the employer for ... a work-related injury sustained by the employee.

(Emphasis added.) Based on the plain language of this provision, the Rosalie Welborn defendants argue that the “exclusive remedy” available to Burkett against his co-employee, Rosalie Welborn, is recovery of workers’ compensation benefits.

Reliance on the “exclusive remedy” language of this statute is misplaced under the particular facts of this case. As the Burketts point out, the “employee of the employer” included in the statutory scope of Darensburg v. Tobey, 887 S.W.2d 84 (Tex.App.—Dallas 1994, writ denied). Even though Rosalie Welborn was Burkett’s co-employee, their *289 employer, Electro–Motor, would not be vicariously liable under the doctrine of respondeat superior for Rosalie Welborn’s liability as a landowner to an invitee.

Burkett refers this Court to an analogous case. In Id.

The Rosalie Welborn defendants seek to distinguish the Id. at 358. The lack of inspection in this suit does not fulfill the duty of the property owner.

Another attempt at distinction deals with the fact that the shed in Id. at 358.

The Rosalie Welborn defendants finally attempt to distinguish Oliver and this case, the corporation/employer would not be responsible for the acts or omissions of the defendant as a landowner, regardless of whether the defendant was also a co-employee.

*290 The Rosalie Welborn defendants refer this Court to the recent Texas Supreme Court case of Id.

Under the first category, the property owner has a duty to inspect the premises and warn of dangerous conditions that are not open and obvious and the owner knows or should have known to exist. Id. The burned-out trailer would not likely fall into the category of concealed hazards.

Under the second category, the Texas Supreme Court has stated that the owner typically owes no duty to the employees of an independent contractor, because there is no duty to ensure that an independent contractor performs its work in a safe manner. Id.

The decision in Lawrence on the second category of defects created by the work done by an independent contractor is distinguishable since there was no independent contractor involved in the instant case. Rosalie Welborn gave instructions to Leslie Welborn to clean and salvage the trailer area. She did this as an employee of Electro–Motor. All parties involved acted as employees of Electro–Motor. Burkett was injured performing the work for Electro–Motor, which was conducted on the premises of Rosalie Welborn. There was no independent contractor.

Even assuming that the Lawrence is applicable, it could be found that Leslie Welborn retained supervisory control in place of Rosalie Welborn. The granting of the summary judgment motion was improper on the issue of premises-related liability.

For the foregoing reasons, we affirm the summary judgment on the negligence claims made by the Burketts against the Rosalie Welborn defendants and Leslie Welborn, but we reverse the summary judgment granted the Rosalie Welborn defendants on the issue of premises-related liability. We sever the premises liability issue and remand it to the trial court for further proceedings.



Rosalie Welborn, who died during the pendency of this case, was sued in several capacities (personally, as executrix of the James Welborn estate, and as trustee of the Rosalie Welborn trust). The “Rosalie Welborn” defendants are now represented by Rosalie’s daughter, JoAnne Leah Ledger, as executrix of the estate of Rosalie Welborn. These defendants/appellees will be referred to collectively as the “Rosalie Welborn” defendants. Leslie Welborn will be referred to individually.

End of Document