Case Information

*0 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/22/2015 2:42:58 PM JEFFREY D. KYLE Clerk CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY THIRD COURT OF APPEALS 7/22/2015 2:42:58 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00080-CV *1 ACCEPTED ^[6179121] CLERK A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Attorneys at Law 1200 SMITH STREET, SUITE 1400 HOUSTON HOUSTON, TEXAS 77002-4496 KEVIN D. JEWELL ATLANTA SHAREHOLDER (713) 658-1818 (800) 342-5829 PHILADELPHIA DIRECT DIAL NO.(713) 654-9620 (713) 658-2553 (FAX) E-MAIL: kevin.jewell@chamberlainlaw.com SAN ANTONIO chwwm@chamberlainlaw.com

Jeffrey D. Kyle, Clerk

Third Court of Appeals

Price Daniel, Sr. Building

209 W. 14th Street, Room 101

Austin, Texas 78701

Re: No. 03-14-00080-CV; Gattis Electric, Inc. v. Mann, et al. ; in the Third Court of Appeals, Austin, Texas.

Dear Mr. Kyle:

Appellant Gattis Electric, Inc. submits this letter in response to the supplemental brief filed by Appellees on July 13, 2015. T EX . R. A PP . P. 38.7.

Appellees cite the Texas Supreme Court’s recent decision in Austin v. Kroger Texas, L.P ., No. 14-0216, 2015 WL 3641066 (Tex. June 12, 2015), in

support of the argument that their case is properly considered one grounded in

general negligence, as opposed to premises defect. Austin was decided on certified

questions from the Fifth Circuit.

The principal problem with Appellees’ position is that Austin involved an analysis of duties in the employer/employee relationship. The plaintiff in

was an employee who filed a negligence suit against his non-subscribing employer.

Id . In contrast, the relationship between Lawhon and Gattis was not one of

employer/employee. Lawhon was an independent contractor.

Austin does not support Appellees’ position for additional reasons. There, the Texas Supreme Court addressed the viability of Austin’s causes of action for

“engaging in negligent activities” and “negligently failing to provide a ‘necessary

instrumentality.’” Id . at *14. Importantly, the court acknowledged that the Fifth

Circuit affirmed summary judgment for Kroger on the “negligent activity” claim

because the plaintiff’s injury “arose from a premises condition rather than any

contemporaneous activity by Kroger, and that Austin ‘cannot pursue both a

negligent activity and a premises defect theory of recovery based on the same

injury.’” Id . at *14. “Thus, when a claim does not result from contemporaneous

activity, the invitee has no negligent-activity claim, and his claim sounds

exclusively in premises-liability.” Id . at *15. That principle, unchanged and

reaffirmed by Austin , applies here.

Austin held, however, that the plaintiff in that case could pursue an alternate theory of recovery: that his employer was negligent in failing to provide

necessary instrumentalities that would have allowed him to perform his job safely.

But it was only due to the plaintiff’s employment relationship with Kroger that

permitted such a claim to proceed because the employer/employee relationship

“may give rise to additional duties, such as a duty to provide necessary equipment,

training, or supervision.” Id . at *15. Regardless, the court clarified, “[i]f the only

relationship between Austin and Kroger were that of landowner-invitee, the

alleged facts could only give rise to a premises-liability claim .” Id . (emphasis

added).

Again, here, Lawhon was not Gattis’s employee, nor did Lawhon allege a “negligent instrumentality” theory of the type Austin recognized or that would

apply in the context of an independent contractor relationship. Further, Austin

certainly did not hold that an ordinary negligence jury question is appropriate in a

premises defect case involving injury to an independent contractor. Thus, the

analysis applied by Appellant controls this case and the judgment must be

reversed.

Of course, Gattis did not owe Lawhon any additional duties for at least one other reason—Lawhon failed to prove, or secure a jury finding, that Gattis

controlled his injury-producing work (which was in any event a task Gattis was

unaware Lawhon agreed to perform, and outside Gattis’s scope of work on the

property). The control an employer exerts over its employee—present in —

is clearly absent from the independent contractor relationship between Gattis and

Lawhon.

Lawhon says his claim against Gattis is not a “premises defect” claim because Gattis was not the property owner. That is irrelevant to the proper

characterization of his claim. Gattis occupies a position of a contractor relative to

Lawhon, who occupies a position of subcontractor. A contractor in Gattis’s

position is held to, at most, the same standard as a premises owner with respect to

injuries to an independent contractor on the premises. See McClure v. Denham ,

162 S.W.3d 346, 351, n. 3 (Tex. App.—Fort Worth 2005, no pet.) (premises owner

owes same duty as general contractor to independent contractor’s employee). does nothing to alter the applicable duties in the present context.

Respectfully submitted, CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY By: /s/ Kevin Jewell Kevin D. Jewell State Bar No. 00787769 1200 Smith Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 658-1818 Telecopy: (713) 658-2553 A TTORNEYS FOR A PPELLANT , G ATTIS E LECTRIC , I NC .

KDJ/dlk

[1952385]

Via electronic service

D. Todd Smith

Smith Law Group, P.C.

1250 Capital of Texas Highway South

Three Cielo Center, Suite 601

Austin, Texas 78746

Via electronic service

Henry Moore

Jayme Bomben

316 W. 12th St., Suite 318

Austin, Texas 78701

Via electronic service

Sally S. Metcalfe

Metcalfe Law, P.L.L.C.

901 South Mopac Expressway

Plaza One, Suite 300

Austin, Texas 78746

CERTIFICATE OF COMPLIANCE The undersigned certifies this brief complies with the typed—volume limitations of Texas Rule of Appellate Procedure 9. This brief contains 636 words,

excluding the parts of the brief exempted, and has been prepared in a

proportionally spaced typeface using Microsoft Word 2010 in Times New Roman,

14 point.

/s/ Kevin D. Jewell