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At a Glance:
Title:
Bartolo Segura v. Hospital Medical Facilities, Ltd.
Date:
June 13, 2013
Citation:
7:09-CV-146
Status:
Unpublished Opinion

Bartolo Segura v. Hospital Medical Facilities, Ltd.

United States District Court, S.D. Texas, McAllen Division.

Jose BARTOLO SEGURA, Plaintiff,

v.

HOSPITAL MEDICAL FACILITIES, LTD, et al, Defendants.

Civil Action No. 7:09-CV-146

|

Signed 06/13/2013

Attorneys & Firms

Juan Antonio Gonzalez, Romero Gonzalez Benavides LLP, McAllen, TX, Ricardo Garza Benavides, Daw & Ray, Harlingen, TX, for Plaintiff.

Carlos Omar Escobar, Escobar Law Firm, PLLC, McAllen, TX, Gilberto Hinojosa, Law Office of Gilberto Hinojosa & Associates P.C., Brownsville, TX, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Randy Crane, United States District Judge

I. Factual and Procedural Background

*1 Now before the Court is the Motion for Summary Judgment filed by Defendants Hospital Medical Facilities, LTD (“HMF”), Alonzo Cantu Construction, Inc. d/b/a Cantu Construction Company and incorrectly sued as “Cantu Construction” (“Cantu”), and Preference, Inc. (“Preference”). (Dkt. No. 44). Plaintiff Jose Bartolo Segura originally filed suit against Defendants on April 30, 2009 in County Court at Law No. 1, Hidalgo County, Texas. (Dkt. No. 1-3).1 On May 29, 2009, Defendants removed the case to the U.S. District Court, Southern District of Texas, McAllen Division, on grounds of diversity. (Dkt. No. 1); see 28 U.S.C. §§ 1332(a)(2),1441, 1446.2 On March 20, 2013, the case was transferred to this Court. (Dkt. No. 47).

Plaintiff’s Original Petition, the live pleading in the case, alleges that Plaintiff was working as an employee and/or shared or borrowed employee of HMF, Cantu, and/or Cantu’s general partner, Preference, when he suffered an on-the-job injury on April 28, 2008. (Dkt. No. 1-3 at ¶ 10). The injury occurred when Plaintiff was lifting large and heavy garbage cans into a dumpster. Id. On that date, Defendants did not carry workers’ compensation insurance. Id. at ¶ 11. Plaintiff brings causes of action against Defendants for negligence, “negligent hiring and negligent retention,” “fraudulent/negligent misrepresentation,” “alter ego/disregard of corporate existence,” intentional infliction of emotional distress, and civil conspiracy. Id. at ¶¶ 13-21. Plaintiff seeks both compensatory and exemplary damages. Id. at ¶¶ 22, 25. Defendants now move for summary judgment on the grounds that Plaintiff has no evidence to support all of the requisite elements of his negligence, negligent hiring, misrepresentation, disregard of corporate existence, and civil conspiracy claims. (Dkt. No. 44). Defendants also assert that Plaintiff cannot recover for intentional infliction of emotional distress given that he has the ability to seek redress for his alleged injuries through his negligence claims, and in any event he lacks evidence to meet the elements of that claim. Id. Finally, Defendants assert that Plaintiff has no evidence to support his request for exemplary damages. Id. Plaintiff’s response does not oppose summary judgment on his misrepresentation and intentional infliction of emotional distress claims, and offers no response as to why his civil conspiracy claim and request for exemplary damages should withstand dismissal, but otherwise contends that summary judgment is improper. (Dkt. No. 45). Upon consideration of Defendants’ Motion, Plaintiff’s response, and the summary judgment evidence, in light of the relevant law, the Court finds that the Motion must be granted in part and denied in part for the following reasons.

II. Standard of Review

*2 A district court must grant summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact is material if it might affect the outcome of the lawsuit under the governing law, and is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party moving for summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings and materials in the record, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); FED. R. CIV. P. 56(a), (c). Once the moving party carries its burden, the burden shifts to the nonmovant to go beyond the pleadings and provide specific facts showing the existence of a genuine issue for trial. Celotex, 477 U.S. at 324; FED. R. CIV. P. 56(c). In conducting its review of the summary judgment record, the court “may not make credibility determinations or weigh the evidence” and must resolve doubts and reasonable inferences regarding the facts in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255; Dean v. City of Shreveport, 438 F.3d 448, 454 (5th Cir. 2006). However, the nonmovant cannot satisfy its burden with “conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence.” Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010); see also Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.”).

III. Summary Judgment Evidence

A. Plaintiff’s Deposition

In his deposition on September 9, 2010, the transcript of which all parties submit as summary judgment evidence, Plaintiff testified that he suffered a back injury while working for Cantu on April 28, 2008. (Dkt. No. 44, Ex. A at p. 9; see also Dkt. No. 45, Ex. 1). Plaintiff worked on construction projects for Cantu for about seven months. (Dkt. No. 44, Ex. A at pp. 62, 66). He was paid by check, possibly issued by HMF, for about three months, and then by cash. Id. at pp. 62-64. At the time of his injury, Plaintiff was working on a construction project “at the Renaissance Hospital Complex, at one of the clinics.” Id. at p. 14. Plaintiff described his job duties at that time as follows:

...I would arrive at the workplace and I’d open everything up. I had the key. And then I would let the contractors in for work, and I would watch over everything and make sure that everything was in order.

And at the end of the day, if any trash had been left around, then I would clean it up.... And then I had the key and I would use that to lock everything up again.

Id. at p. 9.

On April 28, 2008, about one hour before the end of his job shift, Plaintiff and one of his supervisors, “Giovanni,” emptied several trash bins into a dumpster. Id. at pp. 15, 25. The trash bins contained “pieces of cement, laminate, sheetrock, plastic, pieces of cardboard, carpet, all kind of trash.” Id. at pp. 99-100. While emptying the bins, Plaintiff felt a pain or “pinch” in his back. Id. at pp. 25, 102. Plaintiff explained that “since those of us that work in construction are used to things like this, I didn’t think that it was anything out of the ordinary” and did not tell Giovanni about the pain. Id. at pp. 26, 99. After dumping the trash bins, the two men returned to the work site, Giovanni left, and Plaintiff put the bins back in the work area, “closed up,” and walked about a block to his bus stop. Id. at p. 26. Plaintiff testified:

While I was waiting [at the bus stop], the pain in my back got stronger and stronger, but I didn’t think that it was anything that serious. Then I got into the bus, and I noticed while I was on the bus that the movement of the bus would make the pain in my back increase.

Then I got to the stop where I had to get off that was near my house. At that point, my legs had fallen asleep, and I felt this strange itching in my legs, and the pain in my back had grown to be a really terrible pain, and it was getting worse and worse, and it was something that I was not able to explain.

*3 Id. After Plaintiff reached home and lay down on the couch, he realized that he “couldn’t move [his] legs at all” and asked his wife to call 9-1-1. Id. at p. 29. Plaintiff also used the cell phone in his pocket to call Giovanni to tell him what was happening. Id. at p. 30. Plaintiff estimated that he called Giovanni about an hour and a half after emptying the trash bins. Id. at p. 99. Plaintiff was transported by ambulance to Renaissance Hospital, where he underwent surgery and was hospitalized until about May 9, 2008. Id. at pp. 31-32, 35, 38. Plaintiff then was transported to a hospital in Reynosa, Mexico, where he stayed for about a month and a half while receiving therapy. Id. at pp. 40-41, 45, 105. Plaintiff continued to receive therapy after leaving the hospital. Id. at p. 105.

Plaintiff testified that he owned a back brace and used it “in the beginning” when he worked for Cantu. Id. at p. 84. When asked whether he knew that using the back brace was “the safest way to work in construction,” Plaintiff answered in the affirmative. Id. Plaintiff also testified that a man he knew as “Horacio,” who initially hired Plaintiff to work for Cantu, gave Plaintiff training on how he should clean up the job site. Id. at p. 21. However, “nobody told us anything about how to do the job safely.” Id. at p. 21.

B. Additional Summary Judgment Evidence Submitted by Plaintiff

1. Depositions

In response to Defendants’ Motion, Plaintiff also submitted as evidence a transcript of the November 4, 2010 deposition of Charles Michael Amyx, another of Plaintiff’s supervisors when he worked for Cantu. (Dkt. No. 45, Ex. 2; see also Dkt. No. 44, Ex. A at p. 15). Amyx testified that he had been employed by Cantu for about twelve years as a “superintendent” on its construction projects, and that he reported to Alonzo Cantu (“Mr. Cantu”). (Dkt. No. 45, Ex. 2 at pp. 9, 12). Amyx identified Giovanni Mares as another superintendent formerly employed by Cantu. Id. at p. 16. Amyx also identified HMF as the “builder” of the Renaissance hospital facilities. Id. at pp. 13-14, 38. Amyx stated that HMF had no employees. Id. at pp. 27-28. Amyx testified that he had the authority, either with Mr. Cantu’s approval or pursuant to “company practice,” to hire workers on a daily basis to perform jobs such as mowing lawns and removing dirt and trash. Id. at pp. 22-23. According to Amyx, he gave Mares the approval to hire Plaintiff to pick up and remove trash for HMF. Id. at pp. 43-45. Plaintiff was “a subcontractor coming on a daily basis as the job was needed.” Id. at p. 45.

Amyx admitted that he had “seen” Cantu’s safety policy but could not remember when he had last read it. Id. at p. 60. He believed that “[t]he responsibility lies with the subcontractor to enforce those [safety] rules” but admitted that it was his job to say something to a subcontractor if he saw a “blatant violation.” Id. at p. 61. Amyx did not know whether subcontractors were provided with a copy of the safety policy. Id.

Plaintiff also submitted as evidence the transcript of the November 4, 2010 deposition of Juan Pena, who testified as the corporate representative for all three Defendants. (Dkt. No. 45, Ex. 3 at p. 6). Pena stated that he is employed by Cantu as its “company representative,” and that his duties include “overview” and “discussion” of projects. Id. at pp. 4-5. Pena explained that HMF was created around 2005 pursuant to “a simplistic program that had been established from the inception of Cantu Construction, and that is to keep each job separate” for accounting and tax purposes, and to achieve “transparency.” Id. at p. 11. HMF’s general partner is Preference, who owns 1 percent, and its limited partner is Mr. Cantu, who owns 99 percent. Id. at p. 12. Preference is owned 100 percent by Mr. Cantu. Id. Cantu is owned by Mr. Cantu and, possibly, “Mama” or Elva Cantu. Id.

*4 Pena testified that HMF had multiple contracts with Renaissance Hospital to construct various of its facilities. Id. at pp. 13. From 2005 to the date of Pena’s deposition, HMF had not performed a contract for any entity other than Renaissance. Id. at p. 16. Further, HMF had only utilized the services of general contractor Cantu to manage its projects. Id. at pp. 16-17.

Pena believed that Amyx had the authority “based on company policy” to hire persons to do jobs such as picking up trash on an as-needed basis, although he knew of no written policy granting this authority. Id. at pp. 18-19. In such case, these persons would be hired by Cantu to do work on behalf of HMF. Id. at pp. 21-22. Pena confirmed that HMF has no employees. Id. at p. 23.

2. Safety Policy Provisions

Plaintiff’s summary judgment evidence also includes documents produced by Defendants as responsive to Plaintiff’s discovery request for a copy of Defendants’ “Safety Policy Manual, employee handbook or similar publication.” (Dkt. No. 45, Ex. 4 at Defendants’ Response to Request for Production No. 19; Exs. 4(a)-4(g) ). The first of these documents consist of construction safety tips from the Occupational Safety and Health Administration (“OSHA”) entitled “Tips to protect yourself from the Nation’s #1 workplace safety problem—back injuries,” “How to Lift,” “Supervisor is Key to OSHAct Success,” and “The Positive Approach.” Id. at Exs. 4(a)-4(d). The remaining documents are from Cantu’s Company Safety Rules addressing “Your Responsibility to be a Safe Worker,” “Back Injury Prevention,” “Safety Meetings,” “Safety Inspections,” “O.S.H.A.,” and “Protective Equipment.” Id. at Exs. 4(e)-4(g).

IV. Defendants’ Motion for Summary Judgment

A. Employee vs. Independent Contractor

As an initial matter, the Court notes that Plaintiff’s response to Defendants’ Motion for Summary Judgment provides argument and evidence on the issue of whether Plaintiff was an employee of Cantu and/or any other Defendant, or their independent contractor. (Dkt. No. 45). However, Defendants’ Motion specifically states that without waiving or conceding any argument regarding Plaintiff’s status as an employee, Defendants are requesting summary judgment on other grounds. (Dkt. No. 44 at p. 4). Further, Plaintiff has not moved for summary judgment on any basis. See generally id. Therefore, the Court cannot now consider the issue of Plaintiff’s employment status and must instead turn to the issues raised by Defendants’ Motion.

B. Negligence

Plaintiff’s pleading, response, and the summary judgment evidence indicate that the crux of Plaintiff’s negligence claim is Defendants’ alleged failure to ensure Plaintiff’s safe lifting and dumping of the trash bins containing heavy material, proximately resulting in his back injury. More specifically, Plaintiff sues Defendants for negligence under the following theories of liability:

(1) failure to provide a safe workplace;

(2) failure to inspect;

(3) failure to warn;

(4) failure to eliminate dangerous conditions;

(5) failure to train supervisors and employees in the operation of equipment;

(6) failure to provide safe and effective equipment for the particular job at hand;

(7) failure to establish and implement adequate policies and procedures for the safe use of equipment and in particular the ladder in question;

(8) failure to establish and implement adequate policies and procedures for the use of equipment;

*5 (9) failure to adequately train, implement, and enforce policies for the safe use of equipment;

(10) ignoring Defendants’ responsibilities for the safety of their employees; and

(11) failure to discharge Defendants’ non-delegable duty to Plaintiff to provide a safe workplace, safe equipment, and safe and competent co-workers.

(Dkt. No. 1-3 at ¶ 15). Under the substantive law of Texas, which applies in this diversity case,3 “ ‘[t]he elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.’ ” E.g., Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (quoting IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004) ). Although Defendants do not concede that the duties pleaded by Plaintiff exist and apply to them, their Motion focuses on demonstrating that no evidence exists to support the elements of breach and proximate cause with respect to any of Plaintiff’s theories of liability. (Dkt. No. 44).

Defendants’ Motion first makes an indirect effort to attack the proximate cause element of Plaintiff’s negligence claim by emphasizing the time that passed between the initial “pinch” in Plaintiff’s back and his call to his supervisor, Giovanni. See (Dkt. No. 44 at pp. 2-3). However, the Court finds that Plaintiff’s testimony places in genuine dispute whether the pinch Plaintiff felt while lifting and dumping the trash bins was causally related to the pain he experienced at the time he called Giovanni, and that led to his hospitalization and surgery. Therefore, the Court cannot grant summary judgment on this basis.

Defendants’ Motion next challenges the breach and proximate cause elements of each of the eleven asserted bases for Defendants’ negligence. (Dkt. No. 44 at pp. 11-19). Defendants mostly do this by pointing to Plaintiff’s testimony and arguing, in general terms, that Plaintiff has not explained how Defendants failed to carry out these duties, what Defendants should have done, or how Plaintiff’s back injury would not have occurred but for Defendants’ failures. Id. Assuming, as it must for purposes of this Motion, that Defendants had the underlying duties supporting all of these theories of negligence, the Court agrees that Plaintiff has provided no argument or evidence to support the breach and/or proximate cause elements of the following theories: “failure to inspect”; “failure to eliminate dangerous conditions”; and “failure to establish and implement adequate policies and procedures for the safe use of...the ladder in question.” Plaintiff does not identify what Defendants allegedly should have inspected or what dangerous condition of the premises they should have eliminated, nor does he provide argument or evidence that but for that inspection or elimination of the dangerous condition, his back injury would not have occurred.4 Further, the record contains no evidence that Plaintiff used a ladder while lifting and dumping the trash bins, or that its use was somehow required for the safe performance of that job. Therefore, the Court will enter summary judgment for Defendants on Plaintiff’s negligence claim premised on these theories.

*6 The Court does find some evidence in the record to support the breach and proximate cause elements of Plaintiff’s additional theories of negligence. Again, the focus of Plaintiff’s negligence claim is Defendants’ alleged failure to prevent the back injury that occurred when he lifted and dumped what the Court can safely assume were heavy trash bins. To this end, Plaintiff testified that he received no instruction from Defendants on how to lift safely, and that he was not wearing a back brace at the time of the injury. Further, no evidence exists that Plaintiff’s supervisors, among them Giovanni who was with Plaintiff at the time of injury, took measures to ensure that he safely lifted the trash bins. Therefore, at least some evidence exists to support the breach elements of the following bases for recovery: “failure to provide a safe workplace”; “failure to warn”; “failure to train supervisors and employees in the operation of equipment”; “failure to provide safe and effective equipment for the particular job at hand”; “failure to establish and implement adequate policies and procedures for the use of equipment”; “failure to adequately train, implement, and enforce policies for the safe use of equipment,” “ignoring Defendants’ responsibilities for the safety of their employees,” and “failure to discharge Defendants’ non-delegable duty to Plaintiff to provide a safe workplace, safe equipment, and safe and competent co-workers.” The Court also finds that Plaintiff’s testimony and Defendants’ safety policy provisions raise a genuine issue as to whether breaches of the above-cited duties proximately caused Plaintiff’s back injury. That is, a genuine question exists as to whether a person of ordinary intelligence should have anticipated the risk of back injury created by the failure to provide training, supervision, and equipment necessary for performing the task of lifting and dumping heavy trash bins, and whether Plaintiff’s injury would not have occurred as it did absent Defendants’ failure to make these provisions.

The Court recognizes, as Defendants point out in their Motion, that Plaintiff admitted that he owned a back brace, wore it “in the beginning” when he worked for Cantu, and knew that wearing it was “the safest way to work in construction.” However, the record does not establish whether Cantu provided Plaintiff with the brace or any other equipment to protect him while lifting, much less any training or supervision regarding the use of such equipment. Further, although the record does not establish this fact, Defendants have not actively disputed Plaintiff’s allegation that Defendants did not carry insurance under the Texas Workers’ Compensation Act (“TWCA” or “the Act”) at the time of Plaintiff’s injury. See (Dkt. Nos. 1-3 at ¶ 11; 44, 45; 45, Ex. 2 at p. 59; Ex. 3 at p. 9); see TEX. LAB. CODE § 406.002 (making TWCA coverage elective). If Defendants carried that insurance, and if Plaintiff was their employee, the TWCA constitutes the exclusive remedy for Plaintiff’s work-related injuries compensable under the Act. See TEX. LAB. CODE §§ 406.034, 408.001. If, as Plaintiff alleges, Defendants were “non-subscribers” to that insurance, Plaintiff retains the right to sue Defendants for negligence. See id. § 406.033; Hernandez v. Jobe Concrete Prods., Inc.,

Footnotes

1

Plaintiff also sued SP Medical Consulting, Inc., which Defendant has since been dismissed due to Plaintiff’s failure to serve it within the time period prescribed by the Federal Rules. (Dkt. Nos. 1-3, 49).

2

It is undisputed that the case involves an amount in controversy exceeding $75,000, exclusive of interest and costs, and that Plaintiff, a citizen of Mexico, is diverse is citizenship to Defendants, all citizens of Texas. (Dkt. Nos. 1, 1-3).

3

See Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ).

4

Defendants’ Motion also construes Plaintiff’s “failure to provide a safe workplace” theory as a premises liability-type claim, but it is well-established that an employer’s duty to use ordinary care in providing a safe workplace extends to warning its employees of the hazards of employment and providing needed safety equipment or assistance. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).

End of Document
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