In Kalinchuk v. JP Sanchez Construction Co., a Texas plaintiff appealed summary judgment in favor of the defendant, a construction company. The case arose when a city hired a construction company to renovate one of its baseball fields. The city asked the construction company to move bleachers during the renovation, and two of the company’s employers did so with a forklift.
The plaintiff was a welder hired by the city who was asked to break the bleachers into smaller sections. While he was working, the bleachers fell on his back, causing an injury. He sued the construction company, alleging they were negligent and grossly negligent for failing to take sufficient precautions to make sure he was safe when moving the bleachers.
The construction company moved for summary judgment. It argued that it didn’t owe a duty to the plaintiff as a matter of law because it didn’t employ or exercise control over the plaintiff. It also argued that the plaintiff had only produced a scintilla of evidence to show there was a duty, a breach of duty, and causation. The plaintiff’s response included deposition testimony from the plaintiff, construction company employees, and his supervisor. The trial court granted summary judgment nonetheless, although it didn’t state the reason for its decision.
On appeal, the plaintiff argued that the court had erred because there were issues of material fact related to all the elements of his claims. The construction company again argued that it owed no duty and that there was insufficient evidence to establish any of the elements.
The appellate court explained that to prevail on a negligence cause of action, a plaintiff would need to prove there was a duty, a breach of duty, and proximate causation. Gross negligence would require a finding of negligence and also that there was an extreme degree of risk attached to the negligent act or omission, of which the actor was subjectively aware, but the actor proceeded to act anyway without taking the safety of others into account.
The construction company had argued that it didn’t owe a duty to the plaintiff because the plaintiff wasn’t its employee, and it exercised no control over his work. It also argued that the injury wasn’t reasonably foreseeable and that the claim was actually based on a theory of premises liability, rather than negligent activity. The plaintiff argued that the construction company owed him a duty to move the bleachers as a reasonable person would have, avoiding the risk of injury to him.
The appellate court explained that it was being asked to create a new duty with these facts. It further explained that determining whether it could create a new duty required it to balance factors in a risk-utility test, as described in the earlier case of Gonzalez v. O’Brien. The most important consideration in that test is whether the potential risk of harm is foreseeable. In other words, would someone of ordinary intelligence anticipate the danger the negligence would create for others? Courts are also supposed to consider whether one person has superior knowledge of the risk, whether someone has the right to control another party’s conduct, whether changes in society require the recognition of new duties, whether the new duty would conflict with existing statutes, and whether there exist countervailing ideas that would prevent the recognition of a new duty.
In this case, the construction company had agreed to relocate the bleachers. Its employees had put straps around the ends of bleacher sections and used a forklift to move them. One testified he was aware that the surface outside the field where the bleachers would be relocated was uneven and could present a problem. The plaintiff had testified that occasionally straps broke, and there were popping noises to alert there was a problem.
The appellate court explained that although there was some small amount of evidence that the defendant’s employee foresaw the surface onto which the bleachers were being transferred could present a hazard, there was no evidence of other factors. It affirmed the trial court’s judgment.
If you suffer injuries in a construction accident, the experienced San Antonio attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.
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