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Bartosh v. Gulf Health Care Center-Galveston10/11/2005
ers. As the Texas Supreme Court has explained, " ecovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity." Timberwalk Apts., Partners, Inc., v. Cain, 972 S.W.2d 749, 753 (Tex. 1998); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Bartosh clearly does not claim that any activity of Ecolab directly and contemporaneously harmed Smothers; instead, she claims that Ecolab's negligence permitted a condition to exist (i.e., the presence of fire ants at the facility) that resulted in harm to Smothers. This is not a negligent activity case.
Second, Bartosh cites to several cases from other jurisdictions in which plaintiffs sought to hold pest control companies liable for damages due to fire ant attacks, including J.C. Posey Estate v. Centennial Health Care Properties Corp., 78 F. Supp. 2d 554 (N.D. Miss. 1999); Cook's Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala. 2001); and Rein v. Benchmark Construction Co., 865 So.2d 1134 (Miss. 2004). In J.C. Posey Estate, a federal district court addressed whether the plaintiff had fraudulently joined a pest control company in the lawsuit to defeat diversity jurisdiction. 78 F.Supp.2d at 556-57. In analyzing this issue, the court held that the plaintiff did have a viable claim against the company because there was evidence that it had a responsibility to treat for insects at the property where the attack occurred. Id. at 557. However, the court provides little explanation for the basis of this responsibility (although it does mention the contract between the pest control company and the nursing home). Therefore, it is impossible to compare the facts of that case to those of the case before us.
In Cook's Pest Control, the main issue was whether the plaintiff was a third-party beneficiary to the pest control contract such that he could be held to the arbitration clause in the contract. 807 So.2d at 526-27. In determining that the plaintiff was not a third-party beneficiary, the court vaguely references other theories of recovery that do not depend on the existence of the contract. Id. at 527. However, the court does not explain what these theories are or on what basis any duty was created for the pest control company. Thus, this case is of little help to Bartosh's position.
In Rein, the court considered, in a summary judgment context, whether several companies involved in maintenance at a nursing home were potentially liable for a fire ant attack on one of the patients. 865 So.2d at 1136-42. The court looked primarily at the contracts between the companies and the nursing home operator to determine what each company had agreed to do. One company, a landscaper, had not agreed to do any treatment for fire ants and, thus, could not be held liable for the attack, even though it had performed some treatments of its own volition. Id. at 1146-47. Another company had contracted to perform "ant bed control" and, thus, was potentially liable for the ant attack. Id. at 1147. Contrary to Bartosh's assertion, this case does not stand for the proposition that a pest control company has a duty to inspect and treat for fire ants absent a contractual basis for such duty. Instead, the case suggests that the existence of a duty should be ascertained from reviewing what services the party agreed to perform.
Next, Bartosh contends that when Ecolab did treat for fire ants at the facility, it then had a duty toward her and it performed that duty negligently. In support of this argument she cites only to statements by her entomology expert, Dr. Philip Hamman. As mentioned above, Ecolab spot-treated with fire ant bait on four o
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