Jose Alonso v. Westin Homes Corporation, Westin Homes of Texas, LTD., and Westin Homes and Properties, L.P.
14-15-00898-CV
| Tex. App. | Dec 13, 2016Background
- Jose Alonso, a framer employed by a subcontractor, injured his arm after stepping on a weak spot in second-floor plywood and landing on a modified circular saw blade.
- Alonso worked on a Westin Homes construction site; his employer had no written agreement with Westin, but Westin had an Independent Contractor’s Agreement with the general framing contractor.
- Alonso sued Westin asserting negligence, gross negligence, negligence per se, and premises liability under Tex. Civ. Prac. & Rem. Code ch. 95.
- Westin moved for traditional and no-evidence summary judgment, contending (inter alia) Chapter 95 barred liability because Westin lacked control over the work and lacked actual knowledge of the dangerous condition.
- The trial court granted summary judgment for Westin; Alonso appealed solely arguing the Chapter 95 issue.
- The court of appeals focused on whether Alonso raised a fact issue that Westin had actual knowledge of the dangerous condition and affirmed the summary judgment for Westin.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Westin had "actual knowledge" of the dangerous condition under Tex. Civ. Prac. & Rem. Code § 95.003(2) | Alonso argued Westin knew about insufficient materials, rushed work, and unsafe/modified saws because Westin’s construction manager was on-site daily and Westin had practices encouraging finishing with scraps | Westin argued any evidence at most showed constructive knowledge (possible or potential danger), not actual knowledge of the specific dangerous conditions that caused the injury | The court held Alonso presented only constructive knowledge; no evidence Westin actually knew of the dangerous condition, so Chapter 95(2) was not satisfied; summary judgment affirmed |
Key Cases Cited
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (summary judgment reviewed de novo; movant must negate an essential element)
- Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374 (Tex. 2004) (defendant entitled to summary judgment if evidence conclusively negates an essential element)
- Abutahoun v. Dow Chem. Co., 463 S.W.3d 42 (Tex. 2015) (when Chapter 95 applies it is plaintiff’s sole means of recovery against property owner)
- Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 588 (Tex. App.—Houston [14th Dist.] 2004) (Chapter 95 requires actual, not constructive, knowledge)
- Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693 (Tex. App.—Houston [14th Dist.] 2007) (same—actual knowledge required under § 95.003(2))
- City of Corsicana v. Stewart, 249 S.W.3d 412 (Tex. 2008) (actual knowledge requires awareness that the dangerous condition existed at the time of the accident)