579 S.W.3d 152
Tex. App.2019Background
- Cemex owns a 24-hour cement plant with a dual-access filling tower allowing two trucks (entrance/exit platforms) to be used simultaneously.
- Union Logistics, an independent contractor, sent Rodriguez (an employee) to the plant to load cement; Cemex trained Union Logistics’ owner and expected him to train his employees.
- While Rodriguez was on the entrance platform opening his hatch, another driver lifted but failed to secure the exit platform, dragged it off, destabilizing the tower and crushing Rodriguez’s ankle.
- Prior to the accident, Cemex employees had documented multiple incidents (including one the day before) where drivers became entangled with or dragged the platform; Cemex later restricted tower use to one truck at a time and redesigned the tower.
- Rodriguez sued Cemex for premises liability (claiming a concealed/unreasonably dangerous condition), and Cemex moved for traditional summary judgment arguing no duty beyond warning/rectifying hidden defects for independent-contractor employees and that driver negligence was sole cause.
- Trial court granted summary judgment for Cemex; the court of appeals reversed, holding Rodriguez raised fact issues on duty breach and concealment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cemex owed Rodriguez any duty as an employee of an independent contractor | Rodriguez: Cemex owed duty to warn/rectify concealed, unreasonably dangerous conditions (and generally to provide a safe workplace) | Cemex: duty limited; no actionable duty because condition was not a hidden defect and driver negligence was sole cause | Held: Duty exists limited to warning/rectifying concealed, unreasonably dangerous conditions; broader "safe workplace" duty rejected, consistent with Moritz and Parker abolition limited |
| Whether evidence created a fact question that a dangerous condition (dual-use tower) existed and was known or discoverable by Cemex | Rodriguez: Prior incident reports and employee testimony showed Cemex knew tower tended to destabilize and risked harm | Cemex: Incidents were few, caused solely by drivers; design not a defect; many safe uses negate foreseeability | Held: Prior incidents and employee admissions raised genuine fact issues on existence and foreseeability of a dangerous condition |
| Whether the alleged dangerous condition was concealed or open and obvious as a matter of law | Rodriguez: He did not know of prior incidents; no warnings; danger (tower instability when two trucks used) was not obvious to him | Cemex: Rodriguez was experienced and had been to plant multiple times; danger was or should have been obvious | Held: Not open-and-obvious as a matter of law; factual dispute remains whether Rodriguez knew or should have appreciated the specific risk |
| Whether summary judgment was appropriate given causation and concurrent fault | Rodriguez: Both driver negligence and the tower’s instability could be concurrent proximate causes; jury should decide comparative negligence | Cemex: Armendariz’s negligence was the sole proximate cause; no causal role for Cemex’s premises condition | Held: Jury could reasonably find concurrent causes; causation is disputed and summary judgment improper |
Key Cases Cited
- Parker v. Highland Park, 565 S.W.2d 512 (Tex. 1978) (abolished certain no-duty defenses but did not eliminate duty-analysis framework)
- Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008) (landowner owes independent-contractor employees duty only to warn or make safe concealed, unreasonably dangerous pre-existing defects)
- Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex. 2015) (addresses premises owner duties and application of Moritz)
- Brown v. State Dept. of Transp., 80 S.W.3d 594 (Tex. App.—Corpus Christi 2002) (premises condition creates liability where it creates environment making accidents more likely; foreseeability requirement)
- United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 (Tex. 2017) (quoting foreseeability standard for premises defect: sufficient probability that a harmful event would be foreseen)
- Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983) (owner liable where it knew of recurring store condition creating a foreseeable risk and failed to act)