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Electronically Filed
7/24/2023 12:27 PM
Hidalgo County District Clerks
Reviewed By: Dianira Leal
CAUSE NO. C-2720-19-D
EUNICE ALFARO § IN THE DISTRICT COURT
§
v. § 206TH JUDICIAL DISTRICT
§
EDINBURG REGIONAL MEDICAL CENTER § HIDALGO COUNTY, TEXAS
EDINBURG REGIONAL MEDICAL CENTER’S BRIEF IN SUPPORT OF DEFENDANT’S LIMINE
NO. 40
TO THE HONORABLE JUDGE OF THIS COURT:
Edinburg Regional Medical Center, submits this Brief in Support of Defendant’s Limine
No. 40, and respectfully shows the following:
I.
SUMMARY OF ARGUMENT
Plaintiff’s allegations make clear that Plaintiff’s alleged injuries occurred as the result
of a condition ---- a wrong sized couch screw — on the premises of Edinburg Regional Medical
Center (“ERMC”). Specifically, Plaintiff’s Third Amended Original Petition states that Plaintiff’s
bodily injury was “caused by a dangerous condition... which Defendant knew or, in the exercise
of ordinary care, should have known existed.” See Plaintiff’s Third Amended Original Petition
at ¶13. Thus, Plaintiff is barred from asserting a negligent hiring liability theory.
Further, Plaintiff does not allege that a negligent contemporaneous activity caused
Plaintiff’s injury. Rather, Plaintiff’s negligent hiring allegation relates to ERMC’s conduct in
creating, failing to warn of, or failing to correct the condition of the premises. Plaintiff’s negligent
hiring claim is based on an unsafe or dangerous condition on premises of ERMC: the wrong
sized couch screw. Thus, Plaintiff is precluded, as a matter of law, from asserting a negligent
hiring liability theory because Plaintiff’s alleged injury resulted from a condition of the premises.
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Hidalgo County District Clerks
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II.
UNDER TEXAS SUPREME COURT PRECEDENT PLAINTIFF IS PRECLUDED FROM ASSERTING
A NEGLIGENT HIRING LIABILITY THEORY
Under Texas law, a plaintiff injured on another’s property may have “either a negligence
claim or a premises-liability claim against a property owner.” Occidental Chem. Corp. v. Jenkins,
478 S.W.3d 640, 644 (Tex. 2016). Negligent activity and premises defect are independent
theories of recovery. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997).
Whether a particular case involves a "premises defect" or a "negligent activity" is a question of
law. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002) (comparing and contrasting both
types of cases in summary-judgment context); Coastal Marine Serv. v. Lawrence, 988 S.W.2d
223, 225 (Tex. 1999) (same; further citing supreme court's legal conclusions categorizing case
as one type or another in analogous, directed-verdict context).
“Generally, to recover on a negligent activity theory, one must have been injured by or
as a contemporaneous result of an activity.” Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex.
App.—Houston [14th Dist.] 1995, writdism’d) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264
(Tex. 1992)). However, to recover on a premises defect theory, one must be injured by a
condition on the property created by the activity. Keetch, 845 S.W.2d at 264.
When a claim is based on a premises condition and not a contemporaneous negligent
activity, a general negligence claim and/or negligent activity claim is precluded. H.E. Butt
Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992); Keetch v. Kroger Co., 845 S.W.2d
262, 264 (Tex. 1992). The Texas Supreme Court has "rejected attempts to blur the distinction
between these two claims." State v. Shumake, 199 S.W. 3d at 284, citing Keetch v. Kroger Co.,
2
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Hidalgo County District Clerks
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845 S.W. 2d 262, 264 (Tex. 1992)(holding that the trial court correctly refused to submit a
negligent activity theory of liability to the jury and properly submitted the question whether the
store knew or should have known of the unsafe condition). A plaintiff cannot pursue both a
negligent activity and a premises defect theory of recovery based on the same injury. Austin v.
Kroger Texas L.P., 746 F.3d 191, 197 (5th Cir. 2014).
1. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)
In Keetch, the Plaintiff asserted both a premises condition and a negligent activity
theory. Id. at 264. The trial Court did not allow submission of Plaintiff’s negligent activity theory.
Id. Plaintiff appealed and argued that the trial judge erred by not submitting the negligent
activity theory. Id. The Texas Supreme Court found that the trial court properly did not submit
the the negligent activity theory. Id.
Further, the Texas Supreme Court provided guidance in determining whether an injury
results from a premises defect as opposed to a negligent activity. Keetch v. Kroger Co., 845
S.W.2d 262, 264 (Tex. 1992). Keetch was injured after slipping on a grocery store’s floor thirty
minutes after a chemical substance was deposited on the floor in the floral section. Id. at 263.
The chemical substance was left on the floor after the store employees had sprayed the
substance on flowers. Id. The court, in rejecting the theory that the grocery store’s employees
were conducting a negligent activity, noted there was no “ongoing” activity by the store
employees at the time of the injury. Id. at 264. Thus, the court reasoned that while Keetch “may
have been injured by a condition created by the spraying . . . she was not injured by the activity
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of spraying.” Id. The court concluded that the case was properly a premises defect case and not
a case based on negligent activity. Id.
III.
EVEN ASSUMING PLAINTIFF’S ARE NOT PRECLUDED FROM ASSERTING A NEGLIGENT
HIRING LIABILITY THEORY, THE PLAINTIFF HAS ONLY PLEAD A PREMISES LIABILITY
LIABILITY THEORY
A trial court's duty is to submit only those questions, instructions, and definitions raised
by the pleadings and the evidence. Tex. R. Civ. P. 278. A question or instruction cannot be
submitted to the jury unless it has been properly raised by the pleadings and the evidence. In
re Est. of Poe, 648 S.W.3d 277, 280 (Tex. 2022). Artful phrasing of the pleadings to encompass
any other theory of negligence does not affect the application of premises liability law. Wyckoff
v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163-64 (Tex. App.—Dallas 2011, no pet.);
Wilson v. Nw. Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 849 (Tex. App.—Amarillo 2019, no
pet.)Id. at 163.
1. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992)
The Texas Supreme Court reversed the appellate court’s holding that the Plaintiff’s
pleadings alleged two theories of negligence: one based on premises liability theory and the
other based on the failure to pre-bag chicken. Id. This was a slip and fall case wherein Plaintiff
Warner claimed that she slipped and fell in an eight-inch puddle of water, chicken blood, and
other fluids that had accumulated on the floor of Defendant’s store during a “bag your own
chicken” promotion. Id. at 258. The trial court submitted only the premises liabilty question.
Id. at 259.
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Hidalgo County District Clerks
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The Texas Supreme Court held that eventhough Plaintiff’s petition alleges specific facts
of negligence, Plaintiff’s petition, fairly read, alleged only a claim based on premises liability. Id.
The Court explained further that Plaintiff’s cause of action was limited to a premises liability
theory because the Plaintiff was injured by a condition on the premises. Id.
2. Wilson v. Nw. Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 847 (Tex.
App.—Amarillo 2019, no pet.)
The Court held that Plaintiff’s negligence claim was barred as a matter of law and
affirmed the trial court’s granting of the hospital defendant’s summary judgment. Id. at 850.
Plaintiff slipped on water while at defendant hospitals premises while visiting his wife who was
a patient. Id. at 847. Plaintiff alleged that she was “injured as a result of a dangerous
condition...” and “negligence in failing to train and supervise an employee.” Id.
The Court explained that the Plaintiff did not allege that the Plaintiff was injured as a
result of any activity. Id. at 849. The Court explained further that Plaintiff’s other allegation ----
negligent training and supervision of an employee — related to Defendant’s employees conduct
in creating, failing to warn of, or failing to correct the condition of the premises. Id. The Court
found that the allegation did not relate to any contemporaneous activity that caused injury to
the Plaintiff. Id. Thus, Plaintiff’s negligence claim was barred as a matter of law. Id.
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IV.
CASES CITED BY PLAINTIFF ARE NOT APPLICABLE TO LANDOWNER-LICENSEE PREMISES
LIABILITY CASES
Plaintiff’s proposed interpretation of Austin v. Kroger Texas, L.P., 465 S.W. 3d 193 (Tex.
2015) and Wood v. Phoscope, Ltd., 2004 Tex. App. LEXIS 4730 (Tx. App.– Houston [1st] 2004),
is not only misguided but against clear Texas Supreme Court precedent. Plaintiff proposes that
these two cases stand for the propostion that she is not precluded from asserting both
premises liability and negligent hiring of an independent contractor. Plaintiff’s analysis misses
the mark because the cases cited do not apply to landowner-licensee/invitee premises liability
claims.
1. Austin v. Kroger Texas, L.P., 465 S.W. 3d 193 (Tex. 2015) is not applicable
to Landowner – Licensee Premises Liability Claims
In Austin, the Texas Supreme Court affirmed longstanding judicial precedent that a
Plaintiff is barred from asserting a general negligence liability theory when Plaintiff’s claim
arises from a condition on the premises. Id. At 215-216. The Austin Court’s opinion is limited
to premises liability cases involving employers and employees. Id. at 215.
The underlying facts of this case are that Plaintiff, an employee of Defendant, fell while
mopping a restroom floor at the store where he worked. Id. Kroger's safety handbook
recommends that employees clean spills using a "Spill Magic" system that involves a powdery
absorbent product, a broom, and a dustpan because it decreased the likelihood of a slip-and-
fall by 25%. Id. Contrary to the handbook's instruction to store managers, however, the system
was not available at the store that day. Id. at 199. Despite cleaning a portion of the spill,
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Plaintiff slipped and fell in the remaining liquid on the floor and sustained injuries. Id.
Plaintiff employee sued the Defendant employer in state court, asserting claims for
premises liability, negligent activity and negligently failing to provide a “necessary
instrumentality” --- specifically, the Spill Magic system. Id. at 214. Defendant removed the case
to federal court, which granted Defendant’s summary judgment of Plaintiff’s negligent activity
claim because Plaintiff’s claim arose from a condition on the premises. Id. at 199. Plaintiff
appealed and the Fifth Circuit agreed with the federal district court. Id. at 214.
The Defendant asked the Texas Supreme Court to determine whether the
instrumentalities claim is barred because Plaintiff’s claim sounds exclusively in premises
liability. Id. The Court ruled that when the landowner is also an employer and the invitee is also
its employee, this additional relationship may give rise to additional duties, such as a duty to
provide necessary equipment, training, or supervision. Id. at 215.
The Court confirmed that Texas’ longstanding legal precedent remained unchanged and
explained that “[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. at 216.
2. Wood v. Phoscope, Ltd., 2004 Tex. App. LEXIS 4730 (Tx. App.– Houston [1st]
2004)
The Wood opinion is inapplicable here because it does not arise from a landowner-
licensee relationship. The issue before the Court was whether the Defendant, a general
contractor, owed a duty to the Plaintiff, a sub-contractor’s employee, who was seriously injured
in an electrical contact accident. Id. at * 2. In the trial court, the Defendant Photoscope moved
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for traditional summary judgment contending that it was entitled to judgment as a matter of law
because Wood was an employee of an independent contractor, to whom Phonoscope
owednolegal duty. Id. at * 3. The trial granted Photoscopes motion and the remaining
defendants proceeding to trial. Id.
On appeal from the trial court’s ruling of Phonoscope’s summary judgment, Plaintiff
argued that Phonoscope did have duty because it had a right to control and actually exercised
control over Plaintiff’s work. Id. at * 7. The Court of appeals found that Photoscope as general
contractor owed Plaintiff a duty. Id.
V.
CONCLUSION
In summary, it is clear that Plaintiff’s alleged injuries occurred as the result of a condition
---- a wrong sized couch screw — on Defendant’s premises. Further, the cases cited by Plaintiff
are inapplicable to landowner - licensee/invitee premises liability claims. Thus, Plaintiff is
precluded, as a matter of law, from asserting a negligent hiring liability theory because Plaintiff’s
alleged injury resulted from a condition of the premises. A finding by this Court sustaining
Defendant’s limine would be in line with Texas Supreme Court precedent.
WHEREFORE PREMISES CONSIDERED, Edinburg Regional Medical Center respectfully
prays that this Court sustain Defendant’s limine number 40.
8
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Hidalgo County District Clerks
Reviewed By: Dianira Leal
Respectfully submitted,
GONZALEZ CASTILLO MOYA, LLP
By: /s/Ezequiel “Zeke” Moya, Jr.
Steven M. Gonzalez
SBN: 08131900
Edward J. Castillo
SBN: 24040658
Ezequiel "Zeke" Moya, Jr.
SBN: 240925865
1317 E. Quebec Ave.
McAllen, Texas 78503
(956) 618-0115
FAX: (956) 618-0445
Email: law@valleyfirm.com
ATTORNEYS FOR DEFENDANT,
EDINBURG REGIONAL MEDICAL CENTER
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to Plaintiff’s counsel via electronic filing service and e-mail on this 24th day of
July, 2023.
/s/ Ezequiel “Zeke” Moya, Jr.
Ezequiel “Zeke” Moya, Jr.
9
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Bryanna Gonzales on behalf of Ezequiel Moya, Jr.
Bar No. 24092865
bgonzales@valleyfirm.com
Envelope ID: 77809328
Filing Code Description: Motion (No Fee)
Filing Description: Edinburg Regional Medical Center's Brief In Support of
Defendant's Limine No. 40
Status as of 7/24/2023 3:40 PM CST
Associated Case Party: Eunice Alfaro
Name BarNumber Email TimestampSubmitted Status
Eduardo R. Ramirez eddie@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT
Lucia M.Ceaser lucia@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT
Armando Oliveira armando@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT
Mayra Lopez mayra@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT
Associated Case Party: Edinburg Regional Medical Center
Name BarNumber Email TimestampSubmitted Status
Edward J.Castillo ecastillo@valleyfirm.com 7/24/2023 12:27:38 PM SENT
Ezequiel "Zeke"Moya, Jr. emoya@valleyfirm.com 7/24/2023 12:27:38 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
STEVEN GONZALEZ law@valleyfirm.com 7/24/2023 12:27:38 PM SENT
EDUARDO RAMIREZ eddie@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT
Preview
Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal CAUSE NO. C-2720-19-D EUNICE ALFARO § IN THE DISTRICT COURT § v. § 206TH JUDICIAL DISTRICT § EDINBURG REGIONAL MEDICAL CENTER § HIDALGO COUNTY, TEXAS EDINBURG REGIONAL MEDICAL CENTER’S BRIEF IN SUPPORT OF DEFENDANT’S LIMINE NO. 40 TO THE HONORABLE JUDGE OF THIS COURT: Edinburg Regional Medical Center, submits this Brief in Support of Defendant’s Limine No. 40, and respectfully shows the following: I. SUMMARY OF ARGUMENT Plaintiff’s allegations make clear that Plaintiff’s alleged injuries occurred as the result of a condition ---- a wrong sized couch screw — on the premises of Edinburg Regional Medical Center (“ERMC”). Specifically, Plaintiff’s Third Amended Original Petition states that Plaintiff’s bodily injury was “caused by a dangerous condition... which Defendant knew or, in the exercise of ordinary care, should have known existed.” See Plaintiff’s Third Amended Original Petition at ¶13. Thus, Plaintiff is barred from asserting a negligent hiring liability theory. Further, Plaintiff does not allege that a negligent contemporaneous activity caused Plaintiff’s injury. Rather, Plaintiff’s negligent hiring allegation relates to ERMC’s conduct in creating, failing to warn of, or failing to correct the condition of the premises. Plaintiff’s negligent hiring claim is based on an unsafe or dangerous condition on premises of ERMC: the wrong sized couch screw. Thus, Plaintiff is precluded, as a matter of law, from asserting a negligent hiring liability theory because Plaintiff’s alleged injury resulted from a condition of the premises. Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal II. UNDER TEXAS SUPREME COURT PRECEDENT PLAINTIFF IS PRECLUDED FROM ASSERTING A NEGLIGENT HIRING LIABILITY THEORY Under Texas law, a plaintiff injured on another’s property may have “either a negligence claim or a premises-liability claim against a property owner.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). Negligent activity and premises defect are independent theories of recovery. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997). Whether a particular case involves a "premises defect" or a "negligent activity" is a question of law. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002) (comparing and contrasting both types of cases in summary-judgment context); Coastal Marine Serv. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999) (same; further citing supreme court's legal conclusions categorizing case as one type or another in analogous, directed-verdict context). “Generally, to recover on a negligent activity theory, one must have been injured by or as a contemporaneous result of an activity.” Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex. App.—Houston [14th Dist.] 1995, writdism’d) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). However, to recover on a premises defect theory, one must be injured by a condition on the property created by the activity. Keetch, 845 S.W.2d at 264. When a claim is based on a premises condition and not a contemporaneous negligent activity, a general negligence claim and/or negligent activity claim is precluded. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). The Texas Supreme Court has "rejected attempts to blur the distinction between these two claims." State v. Shumake, 199 S.W. 3d at 284, citing Keetch v. Kroger Co., 2 Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal 845 S.W. 2d 262, 264 (Tex. 1992)(holding that the trial court correctly refused to submit a negligent activity theory of liability to the jury and properly submitted the question whether the store knew or should have known of the unsafe condition). A plaintiff cannot pursue both a negligent activity and a premises defect theory of recovery based on the same injury. Austin v. Kroger Texas L.P., 746 F.3d 191, 197 (5th Cir. 2014). 1. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) In Keetch, the Plaintiff asserted both a premises condition and a negligent activity theory. Id. at 264. The trial Court did not allow submission of Plaintiff’s negligent activity theory. Id. Plaintiff appealed and argued that the trial judge erred by not submitting the negligent activity theory. Id. The Texas Supreme Court found that the trial court properly did not submit the the negligent activity theory. Id. Further, the Texas Supreme Court provided guidance in determining whether an injury results from a premises defect as opposed to a negligent activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Keetch was injured after slipping on a grocery store’s floor thirty minutes after a chemical substance was deposited on the floor in the floral section. Id. at 263. The chemical substance was left on the floor after the store employees had sprayed the substance on flowers. Id. The court, in rejecting the theory that the grocery store’s employees were conducting a negligent activity, noted there was no “ongoing” activity by the store employees at the time of the injury. Id. at 264. Thus, the court reasoned that while Keetch “may have been injured by a condition created by the spraying . . . she was not injured by the activity 3 Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal of spraying.” Id. The court concluded that the case was properly a premises defect case and not a case based on negligent activity. Id. III. EVEN ASSUMING PLAINTIFF’S ARE NOT PRECLUDED FROM ASSERTING A NEGLIGENT HIRING LIABILITY THEORY, THE PLAINTIFF HAS ONLY PLEAD A PREMISES LIABILITY LIABILITY THEORY A trial court's duty is to submit only those questions, instructions, and definitions raised by the pleadings and the evidence. Tex. R. Civ. P. 278. A question or instruction cannot be submitted to the jury unless it has been properly raised by the pleadings and the evidence. In re Est. of Poe, 648 S.W.3d 277, 280 (Tex. 2022). Artful phrasing of the pleadings to encompass any other theory of negligence does not affect the application of premises liability law. Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163-64 (Tex. App.—Dallas 2011, no pet.); Wilson v. Nw. Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 849 (Tex. App.—Amarillo 2019, no pet.)Id. at 163. 1. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992) The Texas Supreme Court reversed the appellate court’s holding that the Plaintiff’s pleadings alleged two theories of negligence: one based on premises liability theory and the other based on the failure to pre-bag chicken. Id. This was a slip and fall case wherein Plaintiff Warner claimed that she slipped and fell in an eight-inch puddle of water, chicken blood, and other fluids that had accumulated on the floor of Defendant’s store during a “bag your own chicken” promotion. Id. at 258. The trial court submitted only the premises liabilty question. Id. at 259. 4 Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal The Texas Supreme Court held that eventhough Plaintiff’s petition alleges specific facts of negligence, Plaintiff’s petition, fairly read, alleged only a claim based on premises liability. Id. The Court explained further that Plaintiff’s cause of action was limited to a premises liability theory because the Plaintiff was injured by a condition on the premises. Id. 2. Wilson v. Nw. Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 847 (Tex. App.—Amarillo 2019, no pet.) The Court held that Plaintiff’s negligence claim was barred as a matter of law and affirmed the trial court’s granting of the hospital defendant’s summary judgment. Id. at 850. Plaintiff slipped on water while at defendant hospitals premises while visiting his wife who was a patient. Id. at 847. Plaintiff alleged that she was “injured as a result of a dangerous condition...” and “negligence in failing to train and supervise an employee.” Id. The Court explained that the Plaintiff did not allege that the Plaintiff was injured as a result of any activity. Id. at 849. The Court explained further that Plaintiff’s other allegation ---- negligent training and supervision of an employee — related to Defendant’s employees conduct in creating, failing to warn of, or failing to correct the condition of the premises. Id. The Court found that the allegation did not relate to any contemporaneous activity that caused injury to the Plaintiff. Id. Thus, Plaintiff’s negligence claim was barred as a matter of law. Id. 5 Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal IV. CASES CITED BY PLAINTIFF ARE NOT APPLICABLE TO LANDOWNER-LICENSEE PREMISES LIABILITY CASES Plaintiff’s proposed interpretation of Austin v. Kroger Texas, L.P., 465 S.W. 3d 193 (Tex. 2015) and Wood v. Phoscope, Ltd., 2004 Tex. App. LEXIS 4730 (Tx. App.– Houston [1st] 2004), is not only misguided but against clear Texas Supreme Court precedent. Plaintiff proposes that these two cases stand for the propostion that she is not precluded from asserting both premises liability and negligent hiring of an independent contractor. Plaintiff’s analysis misses the mark because the cases cited do not apply to landowner-licensee/invitee premises liability claims. 1. Austin v. Kroger Texas, L.P., 465 S.W. 3d 193 (Tex. 2015) is not applicable to Landowner – Licensee Premises Liability Claims In Austin, the Texas Supreme Court affirmed longstanding judicial precedent that a Plaintiff is barred from asserting a general negligence liability theory when Plaintiff’s claim arises from a condition on the premises. Id. At 215-216. The Austin Court’s opinion is limited to premises liability cases involving employers and employees. Id. at 215. The underlying facts of this case are that Plaintiff, an employee of Defendant, fell while mopping a restroom floor at the store where he worked. Id. Kroger's safety handbook recommends that employees clean spills using a "Spill Magic" system that involves a powdery absorbent product, a broom, and a dustpan because it decreased the likelihood of a slip-and- fall by 25%. Id. Contrary to the handbook's instruction to store managers, however, the system was not available at the store that day. Id. at 199. Despite cleaning a portion of the spill, 6 Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal Plaintiff slipped and fell in the remaining liquid on the floor and sustained injuries. Id. Plaintiff employee sued the Defendant employer in state court, asserting claims for premises liability, negligent activity and negligently failing to provide a “necessary instrumentality” --- specifically, the Spill Magic system. Id. at 214. Defendant removed the case to federal court, which granted Defendant’s summary judgment of Plaintiff’s negligent activity claim because Plaintiff’s claim arose from a condition on the premises. Id. at 199. Plaintiff appealed and the Fifth Circuit agreed with the federal district court. Id. at 214. The Defendant asked the Texas Supreme Court to determine whether the instrumentalities claim is barred because Plaintiff’s claim sounds exclusively in premises liability. Id. The Court ruled that when the landowner is also an employer and the invitee is also its employee, this additional relationship may give rise to additional duties, such as a duty to provide necessary equipment, training, or supervision. Id. at 215. The Court confirmed that Texas’ longstanding legal precedent remained unchanged and explained that “[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. at 216. 2. Wood v. Phoscope, Ltd., 2004 Tex. App. LEXIS 4730 (Tx. App.– Houston [1st] 2004) The Wood opinion is inapplicable here because it does not arise from a landowner- licensee relationship. The issue before the Court was whether the Defendant, a general contractor, owed a duty to the Plaintiff, a sub-contractor’s employee, who was seriously injured in an electrical contact accident. Id. at * 2. In the trial court, the Defendant Photoscope moved 7 Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal for traditional summary judgment contending that it was entitled to judgment as a matter of law because Wood was an employee of an independent contractor, to whom Phonoscope owednolegal duty. Id. at * 3. The trial granted Photoscopes motion and the remaining defendants proceeding to trial. Id. On appeal from the trial court’s ruling of Phonoscope’s summary judgment, Plaintiff argued that Phonoscope did have duty because it had a right to control and actually exercised control over Plaintiff’s work. Id. at * 7. The Court of appeals found that Photoscope as general contractor owed Plaintiff a duty. Id. V. CONCLUSION In summary, it is clear that Plaintiff’s alleged injuries occurred as the result of a condition ---- a wrong sized couch screw — on Defendant’s premises. Further, the cases cited by Plaintiff are inapplicable to landowner - licensee/invitee premises liability claims. Thus, Plaintiff is precluded, as a matter of law, from asserting a negligent hiring liability theory because Plaintiff’s alleged injury resulted from a condition of the premises. A finding by this Court sustaining Defendant’s limine would be in line with Texas Supreme Court precedent. WHEREFORE PREMISES CONSIDERED, Edinburg Regional Medical Center respectfully prays that this Court sustain Defendant’s limine number 40. 8 Electronically Filed 7/24/2023 12:27 PM Hidalgo County District Clerks Reviewed By: Dianira Leal Respectfully submitted, GONZALEZ CASTILLO MOYA, LLP By: /s/Ezequiel “Zeke” Moya, Jr. Steven M. Gonzalez SBN: 08131900 Edward J. Castillo SBN: 24040658 Ezequiel "Zeke" Moya, Jr. SBN: 240925865 1317 E. Quebec Ave. McAllen, Texas 78503 (956) 618-0115 FAX: (956) 618-0445 Email: law@valleyfirm.com ATTORNEYS FOR DEFENDANT, EDINBURG REGIONAL MEDICAL CENTER CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to Plaintiff’s counsel via electronic filing service and e-mail on this 24th day of July, 2023. /s/ Ezequiel “Zeke” Moya, Jr. Ezequiel “Zeke” Moya, Jr. 9 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Bryanna Gonzales on behalf of Ezequiel Moya, Jr. Bar No. 24092865 bgonzales@valleyfirm.com Envelope ID: 77809328 Filing Code Description: Motion (No Fee) Filing Description: Edinburg Regional Medical Center's Brief In Support of Defendant's Limine No. 40 Status as of 7/24/2023 3:40 PM CST Associated Case Party: Eunice Alfaro Name BarNumber Email TimestampSubmitted Status Eduardo R. Ramirez eddie@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT Lucia M.Ceaser lucia@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT Armando Oliveira armando@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT Mayra Lopez mayra@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT Associated Case Party: Edinburg Regional Medical Center Name BarNumber Email TimestampSubmitted Status Edward J.Castillo ecastillo@valleyfirm.com 7/24/2023 12:27:38 PM SENT Ezequiel "Zeke"Moya, Jr. emoya@valleyfirm.com 7/24/2023 12:27:38 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status STEVEN GONZALEZ law@valleyfirm.com 7/24/2023 12:27:38 PM SENT EDUARDO RAMIREZ eddie@eddieramirezlaw.com 7/24/2023 12:27:38 PM SENT