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