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Gonzalez v. Kinlaw Oil Corp.6/17/1998
From the 218th Judicial District Court, Frio County, Texas
Trial Court No. 92-06-00216-CVF
Honorable Stella Saxon, Judge Presiding
Opinion by: Alma L. López, Justice
AFFIRMED
This appeal originated from a personal injury lawsuit filed by Senaida Gonzalez on behalf of herself, her deceased husband (Heraclio), and the couple's three minor children. Mrs. Gonzalez is appealing an order granting summary judgment in favor of a defendant in her lawsuit.
At the time of his death, Heraclio Chavera Gonzalez was 24 years old. Heraclio worked on oil wells as a floorhand for Pool Energy Services (Pool Energy). Appellee, Kinlaw Oil Corporation (Kinlaw Oil), uses Pool Energy to service its oil pumps. On the occasion of Heraclio's death, Pool Energy had just completed a job at a Kinlaw Oil well.
According to the crew chief for that job , all four members of the Pool Energy crew were in the crew chief's truck preparing to leave immediately prior to Heraclio's death. For an unknown reason, Heraclio jumped from the truck and ran toward the pumping unit. Upon approaching the unit, he stopped, turned around to face the truck and was struck in the head by the counterweights of the pumping jack, causing his death.
Mrs. Gonzalez sued Pool Energy, Kinlaw Oil, and the manufacturer of the pumping jack for negligence she contended resulted in her husband's death. Kinlaw Oil moved for summary judgment, asserting that as a matter of law, it was entitled to summary judgment because Heraclio's death was not caused by the breach of any duty it owed to Heraclio. To support summary judgment, Kinlaw Oil relied on the deposition testimony of the crew chief and Pool Energy's safety representative, and the affidavit of the president of Kinlaw Oil. This evidence established that a representative of Kinlaw Oil was present at the pumping site while Pool Energy's crew serviced the oil well. The evidence conflicted about whether the Kinlaw Oil representative had directed the crew while they serviced the pumping unit, but the evidence did establish that the job was completed and that Kinlaw Oil's representative had departed by the time the accident occurred.
The trial court granted summary judgment in favor of Kinlaw Oil. Kinlaw Oil was severed from Mrs. Gonzalez's lawsuit and Mrs. Gonzalez moved for a new trial, asserting that she had newly-discovered evidence that raised fact questions. The trial court denied the motion for a new trial and Mrs. Gonzalez appealed. Mrs. Gonzalez raises six issues to challenge the trial court's judgment on the motion for new trial. We will address her issues in the manner she presented them in her appeal.
In her motion for new trial, Mrs. Gonzalez contended that she discovered new evidence that raised a fact issue about Kinlaw Oil's allegations in its motion for summary judgment. The newly-discovered evidence took the form of an affidavit by Richard Marenco, a purported engineering expert, who provided his opinions about Heraclio's accident. In his affidavit, Marenco opined that (1) it was customary for oil company personnel to remain on site until contractors completed their work, (2) the Kinlaw Oil representative was responsible for ensuring all work was completed before leaving the site, (3) there was no indication in any deposition testimony that Kinlaw Oil's representative was not responsible for staying until the crew left, and (4) a fence should have been placed around the pumping unit.
Based on Marenco's affidavit, Mrs. Gonzalez makes the following contentions in her first four issues to challenge the trial court's order denying a new trial: (1) Marenco's affidavit rais
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