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Rueda v. Paschal6/23/2005
This is an appeal of a summary judgment rendered in favor of appellees, Ann and Clifford Paschal. In five issues, appellant, Ebodio Rueda, contends that the trial court erred in rendering a no-evidence summary judgment for appellees because the Paschals (1) had control over the work performed and had actual knowledge of the "danger or condition" resulting in appellant's injury, (2) did not invoke the entirety of section 95.003 in their no-evidence motion for summary judgment, (3) did not prove each element of their affirmative defense under section 95.003, and (4) were not entitled to judgment on appellant's claim of gross negligence. We affirm.
I. Facts
In June 2002, the Paschals, who owned a ranch near Kenney, Texas, hired contractors to assist in improvements and construction on the ranch. One of the contractors, Bumpass Builders, Inc., hired a subcontractor, Jose M. Ramirez. Ramirez then hired several workers, including appellant.
At the Paschals' ranch, appellant was instructed by Ramirez to get some tools from the basement, where the tools were stored and some work was being done. To climb down into the basement, appellant used a wooden ladder furnished by the Paschals. Appellant climbed up the ladder after retrieving some tools, but as he did so, the ladder slipped, and appellant fell, landing on the ladder and the concrete floor and sustaining severe injuries.
Appellant brought suit against several parties, including the Paschals. In January 2004, the Paschals filed a no-evidence motion for summary judgment, asserting that appellant had not produced any evidence of the elements required to establish the liability of property owners under section 95.003 of the Civil Practice and Remedies Code. The Paschals specifically asserted that there was no evidence that (1) they exercised some control over appellant's work or (2) they had knowledge of the danger that resulted in appellant's injury and, therefore, they could not be held liable for appellant's injury.
The trial court granted the no-evidence motion for summary judgment and, upon a motion by the Paschals, granted a severance of appellant's claims against the Paschals.
II. Discussion
Section 95.003 of the Texas Civil Practice and Remedies Code provides as follows:
A property owner is not liable for personal injury , death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury , death, or property damage and failed to adequately warn.
Tex. Civ. Prac. & Rem. Code Ann. ยง 95.003 (Vernon 2005).
A. Standard of Review
After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the non-movant's claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer and Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court must grant the motion unless the non-movant produces summary judgment evidence tha
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