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Cause No. 18--257639
RAFAEL HERNANDEZ IN THE DISTRICT COURT OF
Plaintiff,
V.
MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS
GLASS AND INTERIORS,
MAYBRITT MUJADZIC, and
JOE MUJADZIC,
Defendants. § 434 JUDICIAL DISTRICT
PLAINTIFF RESPONSE TO DEFENDANT MAYBRITT MUJADZIC’S
TRADITIONAL AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff Rafael Hernandez (‘Plaintiff’ or “Hernandez”) and files this
Response to Defendant Maybritt Mujadzic’s (“Maybritt”) Traditional and No Evidence Motions
for Summary Judgment, and respectfully shows as follows:
SUMMARY OF RESPONSE
Defendant Maybritt filed a Traditional and No Evidence Motion for Summary
Judgment on May 26, 2023. In her motions, Maybritt contends that there is no genuine issue of
fact as to two (2) elements of Plaintiff's negligence cause of actions, and four (4) elements of
Plaintiff's premises liability cause of action.
A genuine issue of fact exists as to whether Maybritt knew that Plaintiff, who was
installing glass at Defendants’home for their benefit, was acting without the help or assistance of
another individual specifically requested assistance, and was not provided any. Maybritt’s failure
to provide or allow Plaintiff, her employee, to bring another individual to assist him in his
installation was a breach of her duty and was a direct and proximate cause of Plaintiff’s injuries.
As for Plaintiff's premises liability cause of action, a genuine issue of fact exists
to Maybritt’s awareness of the nature of the job and the lack of assistance on the premises, the
tools provided, and other conditions on the premises which posed an unreasonable risk of harm to
Plaintiff, an invitee. Plaintiff used the correct methods of installation that he could for this job, and
sustained injuries due to, at the least, the refusal by Defendants to allow him to have another
individual assist him.
Genuine issues of fact exist as to the contested elements of Plaintiff's negligence
and premises liability causes of action. Defendant Maybritt does not meet her burden as movant
and is not entitled to summary judgment as a matter of law. Further, Plaintiff presents sufficient
evidence to defeat Defendant Maybritt’s No Evidence Motion for Summary Judgment.
MMARY JUDGMENT EVIDENCE
Exhibit Plaintiff's Response to Maybritt s Interrogatories
Exhibit Plaintiffs Production of Medical Recordsand Injuries
Exhibit Plaintiffs Proofof Employment
STATEMENT OF FACTS
Plaintiff was an employee of Defendants. On or about October 5, 2018, Defendants
asked Plaintiffto install glass in their home. While installing this glass, the mirror fell on Plaintiff,
causing him to sustain serious injuries. Plaintiff underwent significant medical treatment.
On December 10, 2018, Plaintiff sued Defendant for negligence, negligence per
; gross negligence , and premises liability
The parties subsequently engaged in discovery which included exchanging written
discovery requests, production of documents reflecting medical expenses and Plaintiff’s injuries,
and the deposition of Plaintiff.
On January 23, 2023, the Court dismissed this case for want of prosecution.
Following a hearing on February 1, 2023, this case was reinstated, trial was set, and the discovery
period remained open The parties subsequently attended mediation, during which Defendants did
not make a single good faith offer and the parties could not come to an agreement. Plaintiff has
since requested the deposition of Joe Mujadzic and sent a tional discovery requests, the
responses to which are pending.
On May 26, 2023, Defendant Maybritt filed a Traditional Motion for Summary
Judgment and a No Evidence Motion of Summary Judgment.
Plaintiff now files this Response to Defendant Maybritt’s Motions for Summary
Judgment, and respectfully shows the Court as follows:
Iv. ARGUMENTS AND AUTHORITIES
Summary Judgment Standard
A no evidence motion for summary judgment is basically a motion for pretrial
directed verdict and is governed by the standards of Texas Rule of Civil Procedure 166a(i). Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009); Pipkin v. Kroger Tex., L.P., 383 S.W.3d
662 (Tex.App. Houston [14th Dist.] 2012, pet. denied) Under rule 166a(i), after an
adequate time for discovery, the party without the burden of proof can move for summary
judgment on the ground that the nonmovant has presented no evidence supporting one or more
element essential to the nonmovant's claim or defense. Tex.R. Civ. P. 166a(i). The nonmovant
must then present more than a scintilla of probative evidence that raises a genuine issue of material
fact supporting each element contested in the motion. See id.; Timpte Indus., Inc., 286 S.W.3d at
310 (Tex.2009); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003). More
than a scintilla of evidence exists when reasonable and fair minded individuals could differ in their
conclusions. Forbes Inc.,124 S.W.3d at 172; Mendoza v. Fiesta Mart, I «5 276 S.W.3d 653, 655
(Tex.App. Houston [14th Dist.] 2008, pet. denied). Less than a scintilla of evidence exists if the
evidence creates no more than a mere surmise or suspicion of a fact regarding a challenged
element. Forbes Inc., 124 S.W.3d at 172; Mendoza, 276 S.W.3d at 655. “We review the evidence ...
in the light most favorable to the party against whom the summary judgment was rendered,
crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex.2006); see Pipkin, 383 S.W.3d at 662. If the nonmovant satisfies its burden of production on
the no evidence motion, then the trial court cannot properly grant the summaryjudgment . Pipkin
383 S.W.3d at 662. If the nonmovant does not satisfy its burden of production on the no evidence
motion, there is no need to analyze whether the movant satisfied its traditional summary judgment
burden. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004); Pipkin, 383 S.W.3d at 662.
To be entitled to a traditional summary judgment, the movant must show that no
genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R.
Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003);
Pipkin, 383 S.W.3d at 662. When reviewing a traditional summary judgment, we take as true all
evidence favorable to the nonmovant, indulging every reasonable inference and resolving any
doubt in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex.2005)
Here, Maybritt fails to meet her burden as movant and is not entitled to traditional
summary judgment. Genuine issues of fact exist as to all contended elements, and Plaintiff's
deposition testimony referenced in Defendant’s pleadings does not by itself defeat Plaintiff's
causes of action. Further, Plaintiff alongside his response presents evidence sufficient to defeat a
no evidence motion for summary judgment. Parties are at this time actively engaged in discovery.
Negligence
To prevail on a negligence claim, a plaintiff is required to prove all three of the
following: (1) defendant owed a legal duty; (2) defendant breached that duty; and (3) the breach
proximately caused plaintiff's injuries. Schwartz v. Forest Pharm., Inc., 127 S.W.3d 118, 12122
(Tex. App.Houston [1st Dist.] 2003, pet. denied)
Defendant Maybritt claims that no issue of fact exists as to the last two elements,
that Plaintiff has provided no evidence in support of those elements, and that Plaintiff's claims are
defeated as a matter of law. In response to an interrogatory sent by Defendant Maybritt, Plaintiff
responded the following:
AMENDED RESPONSE TO INTERROGATORY 12: Defendants
failed to allow Felipe or Rosemary to go assist me on the job.
Defendants did not approve me to take extra help as he didn’t want
Felipe or Rosemary to go. I believed if I would have had extra help the
incident would have not happen as I had to come down the ladder to
reach material and supplies and if help would have been there they
would have just handed it to me. Because jobs like this require two
people, I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe
refused to allow anyone to help me. When I asked Joe for help his
response was: “Why do you need help? For someone to go hold your
testicles?” Defendants did not warn me that it would be dangerous for
me to do the job on my own. Further, Defendants failed to warn me of
any dangerous conditions existing with the walls or in the areas where I
was hired to install the mirrors that would result with the mirror falling
on me and injuring me.
Defendants know of the industry standard as they have been my bosses
for years and have run their business where I worked for many years.
Defendants knew that they were sending me to their personal home to
install mirrors without proper help and without ensuring a safe condition
or conditions.
Maybritt does not deny that she owed Plaintiff a duty. This duty was breached
because Maybritt certainly knew of Plaintiffs request for assistance, and did not act reasonably
by failing to provide him assistance. Further, as an employer of Plaintiff's, Maybritt was aware
that Plaintiff regularly installed glass with the assistance of a partner. With the evidence viewed in
the light most favorable to Plaintiff, Maybritt knew of Plaintiff's request and failed to act on it,
and her inaction was unreasonable as a matter of law. At theleast, there is a genuine dispute as to
this issue of fact, which should be argued at trial.
Further, Plaintiff sustained injuries as a direct and proximate cause of Defendant’s
failure to provide or allow Plaintiff to bring another individual to him. The extent and nature of his
injuries, sustained when he climbed down the ladder to grab supplies and the mirror fell on him,
are evidenced by Exhibit
Premises Liability
To establish liability in a premises case, a plaintiff invitee must prove: (1) a
condition of the premises created an unreasonable risk of harm to the invitee, (2) the owner knew
or reasonably should have known of the condition, (3) the owner failed to exercise ordinary care
to protect the invitee from danger, and (4) the owner's failure was a proximate cause of injury to
the invitee. Sugar Land Properties, Inc. v. Becnel, 26 §.W.3d 113, 121 (Tex.App. Houston [1st
Dist.] 2000, no pet.)
See Exhibit Plaintiff's Response to Maybritt’s Interrogatories
A condition is unreasonably dangerous, in context of a premises liability action, if
it presents an unreasonable risk of harm. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 662
(Tex.App. Houston [14th Dist.] 2012, pet. denied).
An invitee need only show that the landowner knew or should have known of the
allegedly unreasonably dangerous condition, as a prerequisite for sustaining premises liability
action against the landowner; the invitee's own knowledge is not an issue McClure v. Rich 95
S.W.3d 620, 626 (Tex. App.Dallas 2002, no pet.)
As reflected in the evidence presented Plaintiff was a longtime employee of
Defendants . Defendants including Maybritt were well aware of the nature of the job, and the fact
that there was no assistance at the premises. Plaintiff even alerted Joe Mujadzic to this fact. Given
Plaintiff's purpose at the home (completing an inherently dangerous project for the benefit of
efendants), Maybritt should have reasonably provided or allowed Plaintiff to bring another
individual to help him and she failed to exercise ordinary care by not doing so.
Further, Plaintiff is an experienced installer and used every installation method
correctly in accordance with his work _ yet, the mirror fell and injured him. Plaintiff's deposition
testimony that he did not observe a condition on the wall does not defeat any premises liability
claim. As expressly held in the McClure, the invitee’s own knowledge is not an issue. Maybritt’s
knowledge of Plaintiff's request and her failure to provide assistance, the tools provided and used
by Plaintiff, and any additional dangerous condition on the premises is a fact question to which a
genuine dispute exists.
See Exhibit . Proof of Employment
CONCLUSION
Genuine issues of fact exist as to the contested elements of Plaintiff's negligence
and premises liability causes of action. Defendant Maybritt is not entitled to Summary Judgment
on these claims as a matter of law.
PRAYER
WHEREFORE Plaintiff respectfully requests that this Court deny Defendant Maybritt
Mujadzic’s Tradition and No Evidence Motions for Summary Judgment, and grant Plaintiff all
other reliefto which he may be entitled to.
Respectfully submitted,
ATHERN OUSTO
By: /s/Rodney Drinnon
Rodney L. Drinnon
Texas Bar No. 24047841
rdrinnon@mecathernlaw.com
David L. Clark
Texas Bar No. 24036367
dclark@mecathernlaw.com
Haseeb Dada
Texas Bar No. 24132578
hdada@mccathernlaw.com
2000 West Loop S., Suite 1850
Houston, Texas 77027
Tel. (832) 533-8689
Fax (832) 213-4842
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that on June 19, 2023, a true and correct copy of the foregoing and/or
attached was served on each attorney of record or party in accordance with the Texas Rules of
Civil Procedure.
/s/ Rodney L. Drinnon
Rodney L. Drinnon
Cause No. 18--257639
RAFAEL HERNANDEZ IN THE DISTRICT COURT OF
Plaintiff,
V.
MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS
GLASS AND INTERIORS,
MAYBRITT MUJADZIC, and
JOE MUJADZIC,
Defendants. 434 JUDICIAL DISTRICT
ORDER DENYING DEFENDANT MAYBRITT MUJADZIC’S
TRADITIONAL AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT
After considering Defendant Maybritt Mujadzic’s Traditional and No Evidence Motions
for Summary Judgment, the response, the evidence and arguments of counsel presented, the Court
is of the opinion that the Motion should be and is, in all things, DENIED.
SIGNED: , 2023.
The Honorable Judge Presiding
EXHIBIT
A
Cause No. 18
RAFAEL HERNANDEZ IN THE DISTRICT COURT OF
Plaintiff
MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS
GLASS AND INTERIORS,
MAYBRITT MUJADZIC, and
JOE MUJADZIC,
Defendants JUDICIAL DISTRICT
PLAINTIFF RAFAEL HERNANDEZ’S FIRST AMENDED RESPONSES TO
DEFENDANTMAYBRITTMUJADZIC _ FIRST SET OF INTERROGATORIES
To: Defendant, Maybritt Mujadzi , by and through his attorney of record, James A.
Newsom, PROTT EWSOM UATTLEBAUM ESSENGER P.C., 2211 Norfolk, Ste.
1150, Houston, Texas 77098
In response to Defendant Maybritt Mujadzic’s ( Defendant”) First Set of Interrogatories
and pursuant to the Texas Rules of Civil Procedure, Plaintiff Rafael Hernandez (“Plaintiff”)
submit the following responses thereto. The following responses are made based on Plaintiff's
current knowledge. Plaintiff reserve the right to supplement and/or amend should additional
information be revealed during the discovery process.
Respectfully Submitted,
ATHERN
By: /s/Isaac Villarreal
Isaac Villarreal
Texas Bar No. 24054553
ivillarreal@mccathernlaw.com
Amanda Gordon
Texas Bar No. 24103737
agordon@mccathernlaw.com
2000 West Loop South, Suite 1850
Houston, TX 77027
Tel. (832) 533
Fax (832) 213
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
Thereby certify that on this day of July , a true and correct copy of the foregoing
and/or attached was served on each attorney of record or party in accordance with the Texas Rules
of Civil Procedure as follows:
Perry Bass Via E Service
pnbatty@earthlink.net
P.O. Box 52163
Houston, Texas 77052
Attorneyfor Defendant Mujadzic,Inc.
James A. Newsom Via E Service
PROTT EWSOM UATTLEBAUM ESSENGER P.C.
2211 Norfolk, Suite 1150
Houston, Texas 77098
Newsom@SprottNewsom.com
Attorneys for Defendants
Maybritt Mujadzic, and Joe Mujadzic
/s/ Isaac Villarreal
Isaac Villarreal
PLAINTIFF’SFIRST AMENDEDRESPONSES TO
DEFENDANT IRST SET OF INTERROGATORIES
Please describe your employment history for the last ten (10) years up to the time of the
incident, including the full name, address and telephone number of every employer, the
beginning and ending dates of each such employment, and the name of your supervisor
for each employer.
ANSWER: Objection. Plaintiff objects to this request to the extent it is over broad.
Subject to and without waiving the foregoing, Plaintiff responds as follows:
Century Glass
2007 Hwy 90A
Missouri City, Texas 77489
9570
Begin: 04/05/2002
End: 10/05/2018
Supervisor/Owner: Joe Mujadzic
AMENDED RESPONSE(6/22/2020)
Pursuant to the Rule 11 Agreement entered between the Plaintiff and Defendants
Maybritt Mujadzic and Joe Mujadzic (collectively referred to herein as the “Parties”)
on June 8, 2020 wherein the Parties stipulated to limit the request to 5 years prior to
the accident, Plaintiff withdraws his objection and answers as follows:
Century Glass
2007 Hwy 90A
Missouri City, Texas 77489
9570
Begin: 04/05/2002
End: 10/05/2018
Supervisor/Owner: Joe Mujadzic
Please identify every doctor, chiropractor, physical therapist, psychologist, clinic, hospital,
or other health care provider seen in the last ten (10) years, the amount of bills from each,
state the approximate number of times that you have been treated by each and the reason
for the said treatment. Please include each health care provider's name, address, telephone
number, and specialized area of practice. Please include services rendered on both an in
patient and out patient basis.
ANSWER: Objection. Plaintiff objects to this request as it is over broad, unduly
burdensome, harassing and constitutes an impermissible fishing expedition. Plaintiff
further objects to this request as it is not reasonably tailored in scope and time and
not reasonably calculated to lead to the discovery of admissible evidence.
Additionally, Plaintiff objects to this request to the extent it is duplicative of
Interrogatory No. 3 and is not relevant
Subject to and without waiving the foregoing, Plaintiff responds as follows:
See answer to Interrogatory No.
Houston Methodist Primary Care Group
Dr. Melida Y. Tellez, MD
7790 West Grand Parkway South Suite 100
Richmond, Texas 77406
0130
Dr. Tellez is my primary doctor she performs my annual exams.
AMENDED RESPONSE(6/22/ 2020)
Pursuant to the Rule 11 Agreement entered between the Parties on June 8, 2020
wherein the Parties stipulated to limit the request to 5 years prior to the accident,
Plaintiff withdraws his objection and answers as follows
See answer to Interrogatory No.
Houston Methodist Primary Care Group
Dr. Melida Y. Tellez, MD
7790 West Grand Parkway South Suite 100
Richmond, Texas 77406
0130
Dr. Tellez is my primary doctor she performs my annual exams.
For each and every separate piece of glass which fell and/or struck the plaintiff, please state
how and why the class fell, including but not limited to where the class was located before
it fell, who placed the glass in the position it was located before it fell, if the glass was
secured to another object (such as a bracket) or a wall before it fell, whether any glued been
applied to the glass before it fell, when the glass was applied i.e. how long before the glass
fell was it applied to the structure or structures to which it was attached, whether adhesives
are other materials were used to affix the glass to the wall or other structures.
Answer separately for each and every separate piece of glass that fell and struck or injured
the plaintiff.
ANSWER_ Objection. Plaintiff objects to this request to the extent it is vague,
ambiguous, unclear, unduly burdensome and over broad
Subject to and without waiving the foregoing, Plaintiff responds as follows:
I had placed a J molding to put mirrors and had already placed 3 mirrors in place on
the right side of the door when I placed the fourth mirror above the door I placed
majestic glue on sheetrock and placed the fourth mirror as I came down the ladder
seconds later it detached and fell on my head cutting my nose and my right wrist.
AMENDED RESPONSE
Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring
Plaintiff to answer why the glass fell, Plaintiff answers as follows:
I placed the glue in the appropriate spots and then installed the mirror
puttingpressure approximately 5 minutes then releasing to go down the ladder to
pick up a block. I had to do this on my own since Joe refused to allow anyone to help
me. For jobs like this, it is a two person job, so I asked Joe to allow Felipe or Rosa
Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for
help his response was: “Why do you need help? For someone to go hold your
testicles?” If I would have been allowed to have a helper, this incident would have
been prevented because I would not have had to let go of the glass and climb down
the ladder as I would have had someone to hand me what I needed next and the glass
likely would not have fallen and injured m
For each and every separate piece of glass which fell and/or struck the plaintiff, please state
how and why the glass became detached from the wall the other structure to which it was
affixed, including how and why the glass became detached or removed from the wall or
other structure, who detached or remove the glass from the wall or other structure, whether
the glass was removed or detached from the wall or other structure on purpose or by
accident, who removed or detached to the glass from the wall or other structure, what
caused the glass to fall, the reason why the glass was removed or detached from the wall
or other structure.
ANSWER: Objection. Plaintiff objects to this request as unduly burdensome and over
broad.
Subject to and without waiving the foregoing, Plaintiff responds as follows:
I had placed a J molding to put mirrors and had already placed 3 mirrors in place on
the right side of the door when I placed the fourth mirror above the door I placed
majestic glue on sheetrock and placed the fourth mirror as I came down the ladder
seconds later it detached and fell on my head cutting my nose and my right wrist.
AMENDED RESPONSE
Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring
Plaintiff to answer why the glass fell, Plaintiff answers as follows:
I placed the glue in the appropriate spots and then installed the mirror
puttingpressure approximately 5 minutes then releasing to go down the ladder to
pick up a block. I had to do this on my own since Joe refused to allow anyone to help
me. For jobs like this, it is a two person job, so I asked Joe to allow Felipe or Rosa
Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for
help his response was: “Why do you need help? For someone to go hold your
testicles?” If I would have been allowed to have a helper, this incident would have
been prevented because I would not have had to let go of the glass and climb down
the ladder as I would have had someone to hand me what I needed next and the glass
likely would not have fallen and injured me.
Please explain in detail the standard practice for installing a mirror like that mirror being
installed at the time of the accident, including but not limited to what tools are typically
used, why you did or did not use those typical tools, how the tools are used to affix the
mirror to the frame, and when each tool and/or material is used during installation.
ANSWER_ Objection. Plaintiff objects to this request to the extent it is vague,
ambiguous, andunclear
Subject to and without waiving the foregoing, Plaintiff responds as follows:
The area where the mirror was placed was cleaned and prepared I used majestic glue.
Majestic glue is placed with a pallet to the sheetrock and the mirror is then placed
and it sticks to glue and sheetrock
AMENDED RESPONSE
Pursuant to the Rule 11 Agreement entered between the Parties on June 8, 2020
wherein the Parties stipulated to limit the request the “industry standard practice
for installing a mirror”, Plaintiff withdraws his objection and amends his answer as
follows
The area where the mirror was placed was cleaned and prepared I used majestic
glue. Majestic glue is placed with a pallet to the sheetrock and the mirror is then
placed and it sticks to glue and sheetrock. First, for jobs similar to the one resulting
in this incident, I have a helper. I clean the area and then I prepare the area by placing
glue on the required areas and then installing the mirror on the glue surface retaining
pressure on the mirror for about approximately 5 minutes. Because jobs like this
require two people, I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe
refused to allow anyone to help me. When I asked Joe for help his response was: “Why
do you need help? For someone to go hold your testicles?” It is my understanding that
the industry standing for installing glass and mirrors is that there is a second person
around to help with handling and installing the glass or mirror.
If you contend Defendants failed to warn you about the dangerous condition that resulted
in the accident that makes the basis of this suit, please describe in detail and in your own
words, what is the dangerous condition, why is the condition dangerous, who created the
dangerous condition, and what steps or actions defendants should have taken to notify you
that it is foreseeable that a mirror may fall shortly after being installed.
ANSWER: Objection. Plaintiff objects to this request to the extent this request
requires Plaintiff to form a legal conclusion.
Subject to and without waiving the foregoing, Plaintiff responds as follows:
Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants
did not approve me to take extra help as he didn’t want Felipe or Rosemary to go.
believed if I would have had extra help the incident would have not happen as I had
to come down the ladder to reach material and supplies and if help would have been
there they would have just handed it to me
AMENDED RESPONSE
Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring
Plaintiff to state the dangerous condition, Plaintiff answers as follows:
Defendants failed to allow Felipe or Rosemary to go assist me on the job. Defendants
did not approve me to take extra help as he didn’t want Felipe or Rosemary to go.
believed if I would have had extra help the incident would have not happen as I had
to come down the ladder to reach material and supplies and if help would have been
there they would have just handed it to me. Because jobs like this require two people,
I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone
to help me. When I asked Joe for help his response was: “Why do you need help? For
someone to go hold your testicles?” Defendants did not warn me that it would be
dangerous for me to do the job on my own. Further, Defendants failed to warn me of
any dangerous conditions existing with the walls or in the areas where I was hired to
install the mirrors that would result with the mirror falling on me and injuring me.
Defendants know of the industry standard as they have been my bosses for years and
have run their business where I worked for many years. Defendants knew that they
were sending me to their personal home to install mirrors without proper help and
without ensuring a safe condition or conditions.
If you contend Defendants failed to properly inspect the premises for the dangerous
condition that resulted in the accident that makes the basis of this suit, please describe in
detail and in your own words, at what time did the condition become dangerous, (was it
before you affixed the mirror to the wall or after you affixed the mirror to the wall), how
could the defendants have inspected the mirror before it was installed, and what steps or
actions defendants should have taken to notify you that it is foreseeable that a mirror may
fall shortly after being installed.
ANSWER: Defendants failed to allow Felipe or Rosemary to go assist me on the job.
Defendants did not approve me to take extra help as he didn’t want Felipe or
Rosemary to go. I believed if I would have had extra help the incident would have not
happen as I had to come down the ladder to reach material and supplies and if help
would have been there they would have just handed it to me
AMENDED RESPONSE
Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring
Plaintiff to state the dangerous condition, Plaintiff answers as follows:
Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants
did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I
believed if I would have had extra help the incident would have not happen as I had
to come down the ladder to reach material and supplies and if help would have been
there they would have just handed it to me Because jobs like this require two people
I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone
to help me. When I asked Joe for help his response was: “Why do you need help? For
someone to go hold your testicles?” In doing so, he created a dangerous condition
requiring me to do the job on my own. Further, Defendants did not inspect the walls
and areas where I was hired to install the mirrors to assure the conditions were safe.
Defendants know of the industry standard as they have been my bosses for years and
have run their business where I worked for many years. Defendants knew that they
were sending me to their personal home to install mirrors without proper help and
without ensuring a safe condition or conditions.
If you contend Defendants failed to maintain the premises in a reasonably safe
condition and that failure resulted in the accident that makes the basis of this suit, please
describe in detail and in your own word how or in what way defendant failed to maintain
the premises and how could the defendants have known that the mirror would come loose
before installation.
ANSWER _ Defendants failed to allow Felipe or Rosemary to go assist me on the job.
Defendants did not approve me to take extra help as he didn’t want Felipe or
Rosemary to go. I believed if I would have had extra help the incident would have not
happen as I had to come down the ladder to reach material and supplies and if help
would have been there they would have just handed it to me.
AMENDED RESPONSE:
Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring
Plaintiff to state the dangerous condition, Plaintiff answers as follows:
Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants
did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I
believed if I would have had extra help the incident would have not happen as I had
to come down the ladder to reach material and supplies and if help would have been
there they would have just handed it to me. Because jobs like this require two people
Lasked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone
to help me. When I asked Joe for help his response was: “Why do you need help? For
someone to go hold your testicles?” In doing so, he created a dangerous condition
requiring me to do the job on my own. Further, Defendants failed to keep the walls
or in areas where I was hired to install the mirrors in a safe condition appropriate for
the installation of mirrors. Defendants know of the industry standard as they have
been my bosses for years and have run their business where I worked for many years.
Defendants knew that they were sending me to their personal home to install mirrors
without proper help and without ensuring a safe condition or conditions.
If you contend Defendants permitted the premises to remain in an unsafe condition and
that resulted in the accident that makes the basis of this suit, please describe in detail and
in your own words, at what time did the premises become unreasonably dangerous, (was it
before you affixed the mirror to the wall or after you affixed the mirror to the wall), who
made the premises unsafe, how could the defendants have known that the mirror would
come loose before installation, what condition was unsafe, and what steps or actions
defendants should have taken notify you that it is foreseeable that a mirror may fall shortly
after being installed.
ANSWER: Defendants failed to allow Felipe or Rosemary to go assist me on the job.
Defendants did not approve me to take extra help as he didn’t want Felipe or
Rosemary to go. I believed if I would have had extra help the incident would have not
happen as I had to come down the ladder to reach material and supplies and if help
would have been there they would have just handed it to me.
AMENDED RESPONSE
Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring
Plaintiff to state the dangerous condition, Plaintiff answers as follows:
Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants
did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I
believed if I would have had extra help the incident would have not happen as I had
to come down the ladder to reach material and supplies and if help would have been
there they would have just handed it to me. Because jobs like this require two people
I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone
to help me. When I asked Joe for help his response was: “Why do you need help? For
someone to go hold your testicles?” In doing so, he created a dangerous condition
equiring me to do the job on my own. In doing so, he created a dangerous condition,
permitting the premises to remain unsafe, by requiring me to do the job on my own.
Further, Defendants failed to keep the walls or in areas where I was hired to install
the mirrors in a safe condition appropriate for the installation of mirrors. Defendants
know of the industry standard as they have been my bosses for years and have run
their business where I worked for many years. Defendants knew that they were
sending me to their personal home to install mirrors without proper help and without
ensuring a safe condition or conditions.
If you contend that Mujadzic, Inc. d/b/a Century Glass & Interiors deviated from standard
practices and procedures, please describe in detail and in your own words, what are the
standard practices for installing a mirror, what are the standard procedures for installing a
mirror, how did you learn about the standard practices for installing a mirror, how did you
learn about the standard procedure for installing a mirror, how did Century Glass &
Interiors deviate from those standard practices and procedures, how anyone other than you
deviated from the standard practices and procedures, and who, other than you, was present
at the installation.
ANSWER: Objection. Plaintiff objects to this request as it requires Plaintiff to
provide a legal conclusion. Plaintiff further objects to this request as it is available
from a more convenient source, specifically Defendants themselves.
Subject to and without waiving the foregoing, Plaintiff responds as follows:
Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants
did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I
believed if I would have had extra help the incident would have not happen as I had
to come down the ladder to reach material and supplies and if help would have been
there they would have just handed it to me.
AMENDED RESPONSE
Pursuant to the Rule 11 Agreement entered between the Parties on June 8, 2020
wherein the Parties stipulated to limit the requestto the “ companystandard practice
for installing a mirror”, Plaintiff withdraws his objection and amends his answer as
follows
Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants
did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I
believed if I would have had extra help the incident would have not happen as I had
to come down the ladder to reach material and supplies and if help would have been
there they would have just handed it to me. Because jobs like this require two people
L asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone
to help me. When I asked Joe for help his response was: “Why do you need help? For
someone to go hold your testicles?” In doing so, Defendants deviated from industry
standard installation practices. Mujadzic, Inc. d/b/a Century Glass did not have
consistent standards. Sometimes Defendant Joe Mujadzic would allow me to have a
helper and sometimes he would not. On this particular job, both Rosamaria and
Felipe were available to help me, but Defendants did not allow me to have a helper.
Instead Defendants made the decision to send me do the installation by myself.
Defendants know of the industry standard as they have been my bosses for years and
have run their business where I worked for many years. Defendants knew that they
were sending me to their personal home to install mirrors without proper help and
ithout ensuring a safe condition or conditions.
Cause No. 18-DCV-257639
RAFAEL HERNANDEZ IN THE DISTRICT COURT OF
Plaintiff,
Vv.
MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS
GLASS AND INTERIORS,
MAYBRITT MUJADZIC, and
JOE MUJADZIC,
Defendants. 434" JUDICIAL DISTRICT
UNSWORN DECLARATION
My name is Rafael Hernandez. My date of birth is February 8, 1973 and my address for purposes
of this litigation is in the care of McCathern, 2000 West Loop S., Suite 1850, Houston, Texas
771027. 1 declare under penalty of perjury that the facts described in the foregoing Plaintiff Rafael
Hernandez’s First Amended Responses to Defendant Joe Mujadzic’s First Set of Interrogatories
are true and correct.
Executed in Harris County, Texas on this__25 day of June, 2020.
Kaeos lle
Rafael Hernandez
Cause No. 18-DCV-257639
RAFAEL HERNANDEZ IN THE DISTRICT COURT OF
Plaintiff,
Vv.
MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS
GLASS AND INTERIORS,
MAYBRITT MUJADZIC, and
JOE MUJADZIC,
Defendants. 434" JUDICIAL DISTRICT
UNSWORN DECLARATION
My name is Rafael Hernandez. My date of birth is February 8, 1973 and my address for purposes
of this litigation is in the care of McCathern, 2000 West Loop S., Suite 1850, Houston, Texas
77027. I declare under penalty of perjury that the facts described in the foregoing Plaintiff Rafael
Hernandez’s First Amended Responses to Defendant Maybritt Mujadzic’s First Set of
Interrogatories are true and correct.
Executed in Harris County, Texas on this 25 % day of June, 2020.
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Rafael Hernandez
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Cause No. 18--257639 RAFAEL HERNANDEZ IN THE DISTRICT COURT OF Plaintiff, V. MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS GLASS AND INTERIORS, MAYBRITT MUJADZIC, and JOE MUJADZIC, Defendants. § 434 JUDICIAL DISTRICT PLAINTIFF RESPONSE TO DEFENDANT MAYBRITT MUJADZIC’S TRADITIONAL AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Plaintiff Rafael Hernandez (‘Plaintiff’ or “Hernandez”) and files this Response to Defendant Maybritt Mujadzic’s (“Maybritt”) Traditional and No Evidence Motions for Summary Judgment, and respectfully shows as follows: SUMMARY OF RESPONSE Defendant Maybritt filed a Traditional and No Evidence Motion for Summary Judgment on May 26, 2023. In her motions, Maybritt contends that there is no genuine issue of fact as to two (2) elements of Plaintiff's negligence cause of actions, and four (4) elements of Plaintiff's premises liability cause of action. A genuine issue of fact exists as to whether Maybritt knew that Plaintiff, who was installing glass at Defendants’home for their benefit, was acting without the help or assistance of another individual specifically requested assistance, and was not provided any. Maybritt’s failure to provide or allow Plaintiff, her employee, to bring another individual to assist him in his installation was a breach of her duty and was a direct and proximate cause of Plaintiff’s injuries. As for Plaintiff's premises liability cause of action, a genuine issue of fact exists to Maybritt’s awareness of the nature of the job and the lack of assistance on the premises, the tools provided, and other conditions on the premises which posed an unreasonable risk of harm to Plaintiff, an invitee. Plaintiff used the correct methods of installation that he could for this job, and sustained injuries due to, at the least, the refusal by Defendants to allow him to have another individual assist him. Genuine issues of fact exist as to the contested elements of Plaintiff's negligence and premises liability causes of action. Defendant Maybritt does not meet her burden as movant and is not entitled to summary judgment as a matter of law. Further, Plaintiff presents sufficient evidence to defeat Defendant Maybritt’s No Evidence Motion for Summary Judgment. MMARY JUDGMENT EVIDENCE Exhibit Plaintiff's Response to Maybritt s Interrogatories Exhibit Plaintiffs Production of Medical Recordsand Injuries Exhibit Plaintiffs Proofof Employment STATEMENT OF FACTS Plaintiff was an employee of Defendants. On or about October 5, 2018, Defendants asked Plaintiffto install glass in their home. While installing this glass, the mirror fell on Plaintiff, causing him to sustain serious injuries. Plaintiff underwent significant medical treatment. On December 10, 2018, Plaintiff sued Defendant for negligence, negligence per ; gross negligence , and premises liability The parties subsequently engaged in discovery which included exchanging written discovery requests, production of documents reflecting medical expenses and Plaintiff’s injuries, and the deposition of Plaintiff. On January 23, 2023, the Court dismissed this case for want of prosecution. Following a hearing on February 1, 2023, this case was reinstated, trial was set, and the discovery period remained open The parties subsequently attended mediation, during which Defendants did not make a single good faith offer and the parties could not come to an agreement. Plaintiff has since requested the deposition of Joe Mujadzic and sent a tional discovery requests, the responses to which are pending. On May 26, 2023, Defendant Maybritt filed a Traditional Motion for Summary Judgment and a No Evidence Motion of Summary Judgment. Plaintiff now files this Response to Defendant Maybritt’s Motions for Summary Judgment, and respectfully shows the Court as follows: Iv. ARGUMENTS AND AUTHORITIES Summary Judgment Standard A no evidence motion for summary judgment is basically a motion for pretrial directed verdict and is governed by the standards of Texas Rule of Civil Procedure 166a(i). Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009); Pipkin v. Kroger Tex., L.P., 383 S.W.3d 662 (Tex.App. Houston [14th Dist.] 2012, pet. denied) Under rule 166a(i), after an adequate time for discovery, the party without the burden of proof can move for summary judgment on the ground that the nonmovant has presented no evidence supporting one or more element essential to the nonmovant's claim or defense. Tex.R. Civ. P. 166a(i). The nonmovant must then present more than a scintilla of probative evidence that raises a genuine issue of material fact supporting each element contested in the motion. See id.; Timpte Indus., Inc., 286 S.W.3d at 310 (Tex.2009); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003). More than a scintilla of evidence exists when reasonable and fair minded individuals could differ in their conclusions. Forbes Inc.,124 S.W.3d at 172; Mendoza v. Fiesta Mart, I «5 276 S.W.3d 653, 655 (Tex.App. Houston [14th Dist.] 2008, pet. denied). Less than a scintilla of evidence exists if the evidence creates no more than a mere surmise or suspicion of a fact regarding a challenged element. Forbes Inc., 124 S.W.3d at 172; Mendoza, 276 S.W.3d at 655. “We review the evidence ... in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006); see Pipkin, 383 S.W.3d at 662. If the nonmovant satisfies its burden of production on the no evidence motion, then the trial court cannot properly grant the summaryjudgment . Pipkin 383 S.W.3d at 662. If the nonmovant does not satisfy its burden of production on the no evidence motion, there is no need to analyze whether the movant satisfied its traditional summary judgment burden. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004); Pipkin, 383 S.W.3d at 662. To be entitled to a traditional summary judgment, the movant must show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003); Pipkin, 383 S.W.3d at 662. When reviewing a traditional summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubt in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005) Here, Maybritt fails to meet her burden as movant and is not entitled to traditional summary judgment. Genuine issues of fact exist as to all contended elements, and Plaintiff's deposition testimony referenced in Defendant’s pleadings does not by itself defeat Plaintiff's causes of action. Further, Plaintiff alongside his response presents evidence sufficient to defeat a no evidence motion for summary judgment. Parties are at this time actively engaged in discovery. Negligence To prevail on a negligence claim, a plaintiff is required to prove all three of the following: (1) defendant owed a legal duty; (2) defendant breached that duty; and (3) the breach proximately caused plaintiff's injuries. Schwartz v. Forest Pharm., Inc., 127 S.W.3d 118, 12122 (Tex. App.Houston [1st Dist.] 2003, pet. denied) Defendant Maybritt claims that no issue of fact exists as to the last two elements, that Plaintiff has provided no evidence in support of those elements, and that Plaintiff's claims are defeated as a matter of law. In response to an interrogatory sent by Defendant Maybritt, Plaintiff responded the following: AMENDED RESPONSE TO INTERROGATORY 12: Defendants failed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. Because jobs like this require two people, I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” Defendants did not warn me that it would be dangerous for me to do the job on my own. Further, Defendants failed to warn me of any dangerous conditions existing with the walls or in the areas where I was hired to install the mirrors that would result with the mirror falling on me and injuring me. Defendants know of the industry standard as they have been my bosses for years and have run their business where I worked for many years. Defendants knew that they were sending me to their personal home to install mirrors without proper help and without ensuring a safe condition or conditions. Maybritt does not deny that she owed Plaintiff a duty. This duty was breached because Maybritt certainly knew of Plaintiffs request for assistance, and did not act reasonably by failing to provide him assistance. Further, as an employer of Plaintiff's, Maybritt was aware that Plaintiff regularly installed glass with the assistance of a partner. With the evidence viewed in the light most favorable to Plaintiff, Maybritt knew of Plaintiff's request and failed to act on it, and her inaction was unreasonable as a matter of law. At theleast, there is a genuine dispute as to this issue of fact, which should be argued at trial. Further, Plaintiff sustained injuries as a direct and proximate cause of Defendant’s failure to provide or allow Plaintiff to bring another individual to him. The extent and nature of his injuries, sustained when he climbed down the ladder to grab supplies and the mirror fell on him, are evidenced by Exhibit Premises Liability To establish liability in a premises case, a plaintiff invitee must prove: (1) a condition of the premises created an unreasonable risk of harm to the invitee, (2) the owner knew or reasonably should have known of the condition, (3) the owner failed to exercise ordinary care to protect the invitee from danger, and (4) the owner's failure was a proximate cause of injury to the invitee. Sugar Land Properties, Inc. v. Becnel, 26 §.W.3d 113, 121 (Tex.App. Houston [1st Dist.] 2000, no pet.) See Exhibit Plaintiff's Response to Maybritt’s Interrogatories A condition is unreasonably dangerous, in context of a premises liability action, if it presents an unreasonable risk of harm. Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 662 (Tex.App. Houston [14th Dist.] 2012, pet. denied). An invitee need only show that the landowner knew or should have known of the allegedly unreasonably dangerous condition, as a prerequisite for sustaining premises liability action against the landowner; the invitee's own knowledge is not an issue McClure v. Rich 95 S.W.3d 620, 626 (Tex. App.Dallas 2002, no pet.) As reflected in the evidence presented Plaintiff was a longtime employee of Defendants . Defendants including Maybritt were well aware of the nature of the job, and the fact that there was no assistance at the premises. Plaintiff even alerted Joe Mujadzic to this fact. Given Plaintiff's purpose at the home (completing an inherently dangerous project for the benefit of efendants), Maybritt should have reasonably provided or allowed Plaintiff to bring another individual to help him and she failed to exercise ordinary care by not doing so. Further, Plaintiff is an experienced installer and used every installation method correctly in accordance with his work _ yet, the mirror fell and injured him. Plaintiff's deposition testimony that he did not observe a condition on the wall does not defeat any premises liability claim. As expressly held in the McClure, the invitee’s own knowledge is not an issue. Maybritt’s knowledge of Plaintiff's request and her failure to provide assistance, the tools provided and used by Plaintiff, and any additional dangerous condition on the premises is a fact question to which a genuine dispute exists. See Exhibit . Proof of Employment CONCLUSION Genuine issues of fact exist as to the contested elements of Plaintiff's negligence and premises liability causes of action. Defendant Maybritt is not entitled to Summary Judgment on these claims as a matter of law. PRAYER WHEREFORE Plaintiff respectfully requests that this Court deny Defendant Maybritt Mujadzic’s Tradition and No Evidence Motions for Summary Judgment, and grant Plaintiff all other reliefto which he may be entitled to. Respectfully submitted, ATHERN OUSTO By: /s/Rodney Drinnon Rodney L. Drinnon Texas Bar No. 24047841 rdrinnon@mecathernlaw.com David L. Clark Texas Bar No. 24036367 dclark@mecathernlaw.com Haseeb Dada Texas Bar No. 24132578 hdada@mccathernlaw.com 2000 West Loop S., Suite 1850 Houston, Texas 77027 Tel. (832) 533-8689 Fax (832) 213-4842 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on June 19, 2023, a true and correct copy of the foregoing and/or attached was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure. /s/ Rodney L. Drinnon Rodney L. Drinnon Cause No. 18--257639 RAFAEL HERNANDEZ IN THE DISTRICT COURT OF Plaintiff, V. MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS GLASS AND INTERIORS, MAYBRITT MUJADZIC, and JOE MUJADZIC, Defendants. 434 JUDICIAL DISTRICT ORDER DENYING DEFENDANT MAYBRITT MUJADZIC’S TRADITIONAL AND NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT After considering Defendant Maybritt Mujadzic’s Traditional and No Evidence Motions for Summary Judgment, the response, the evidence and arguments of counsel presented, the Court is of the opinion that the Motion should be and is, in all things, DENIED. SIGNED: , 2023. The Honorable Judge Presiding EXHIBIT A Cause No. 18 RAFAEL HERNANDEZ IN THE DISTRICT COURT OF Plaintiff MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS GLASS AND INTERIORS, MAYBRITT MUJADZIC, and JOE MUJADZIC, Defendants JUDICIAL DISTRICT PLAINTIFF RAFAEL HERNANDEZ’S FIRST AMENDED RESPONSES TO DEFENDANTMAYBRITTMUJADZIC _ FIRST SET OF INTERROGATORIES To: Defendant, Maybritt Mujadzi , by and through his attorney of record, James A. Newsom, PROTT EWSOM UATTLEBAUM ESSENGER P.C., 2211 Norfolk, Ste. 1150, Houston, Texas 77098 In response to Defendant Maybritt Mujadzic’s ( Defendant”) First Set of Interrogatories and pursuant to the Texas Rules of Civil Procedure, Plaintiff Rafael Hernandez (“Plaintiff”) submit the following responses thereto. The following responses are made based on Plaintiff's current knowledge. Plaintiff reserve the right to supplement and/or amend should additional information be revealed during the discovery process. Respectfully Submitted, ATHERN By: /s/Isaac Villarreal Isaac Villarreal Texas Bar No. 24054553 ivillarreal@mccathernlaw.com Amanda Gordon Texas Bar No. 24103737 agordon@mccathernlaw.com 2000 West Loop South, Suite 1850 Houston, TX 77027 Tel. (832) 533 Fax (832) 213 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Thereby certify that on this day of July , a true and correct copy of the foregoing and/or attached was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure as follows: Perry Bass Via E Service pnbatty@earthlink.net P.O. Box 52163 Houston, Texas 77052 Attorneyfor Defendant Mujadzic,Inc. James A. Newsom Via E Service PROTT EWSOM UATTLEBAUM ESSENGER P.C. 2211 Norfolk, Suite 1150 Houston, Texas 77098 Newsom@SprottNewsom.com Attorneys for Defendants Maybritt Mujadzic, and Joe Mujadzic /s/ Isaac Villarreal Isaac Villarreal PLAINTIFF’SFIRST AMENDEDRESPONSES TO DEFENDANT IRST SET OF INTERROGATORIES Please describe your employment history for the last ten (10) years up to the time of the incident, including the full name, address and telephone number of every employer, the beginning and ending dates of each such employment, and the name of your supervisor for each employer. ANSWER: Objection. Plaintiff objects to this request to the extent it is over broad. Subject to and without waiving the foregoing, Plaintiff responds as follows: Century Glass 2007 Hwy 90A Missouri City, Texas 77489 9570 Begin: 04/05/2002 End: 10/05/2018 Supervisor/Owner: Joe Mujadzic AMENDED RESPONSE(6/22/2020) Pursuant to the Rule 11 Agreement entered between the Plaintiff and Defendants Maybritt Mujadzic and Joe Mujadzic (collectively referred to herein as the “Parties”) on June 8, 2020 wherein the Parties stipulated to limit the request to 5 years prior to the accident, Plaintiff withdraws his objection and answers as follows: Century Glass 2007 Hwy 90A Missouri City, Texas 77489 9570 Begin: 04/05/2002 End: 10/05/2018 Supervisor/Owner: Joe Mujadzic Please identify every doctor, chiropractor, physical therapist, psychologist, clinic, hospital, or other health care provider seen in the last ten (10) years, the amount of bills from each, state the approximate number of times that you have been treated by each and the reason for the said treatment. Please include each health care provider's name, address, telephone number, and specialized area of practice. Please include services rendered on both an in patient and out patient basis. ANSWER: Objection. Plaintiff objects to this request as it is over broad, unduly burdensome, harassing and constitutes an impermissible fishing expedition. Plaintiff further objects to this request as it is not reasonably tailored in scope and time and not reasonably calculated to lead to the discovery of admissible evidence. Additionally, Plaintiff objects to this request to the extent it is duplicative of Interrogatory No. 3 and is not relevant Subject to and without waiving the foregoing, Plaintiff responds as follows: See answer to Interrogatory No. Houston Methodist Primary Care Group Dr. Melida Y. Tellez, MD 7790 West Grand Parkway South Suite 100 Richmond, Texas 77406 0130 Dr. Tellez is my primary doctor she performs my annual exams. AMENDED RESPONSE(6/22/ 2020) Pursuant to the Rule 11 Agreement entered between the Parties on June 8, 2020 wherein the Parties stipulated to limit the request to 5 years prior to the accident, Plaintiff withdraws his objection and answers as follows See answer to Interrogatory No. Houston Methodist Primary Care Group Dr. Melida Y. Tellez, MD 7790 West Grand Parkway South Suite 100 Richmond, Texas 77406 0130 Dr. Tellez is my primary doctor she performs my annual exams. For each and every separate piece of glass which fell and/or struck the plaintiff, please state how and why the class fell, including but not limited to where the class was located before it fell, who placed the glass in the position it was located before it fell, if the glass was secured to another object (such as a bracket) or a wall before it fell, whether any glued been applied to the glass before it fell, when the glass was applied i.e. how long before the glass fell was it applied to the structure or structures to which it was attached, whether adhesives are other materials were used to affix the glass to the wall or other structures. Answer separately for each and every separate piece of glass that fell and struck or injured the plaintiff. ANSWER_ Objection. Plaintiff objects to this request to the extent it is vague, ambiguous, unclear, unduly burdensome and over broad Subject to and without waiving the foregoing, Plaintiff responds as follows: I had placed a J molding to put mirrors and had already placed 3 mirrors in place on the right side of the door when I placed the fourth mirror above the door I placed majestic glue on sheetrock and placed the fourth mirror as I came down the ladder seconds later it detached and fell on my head cutting my nose and my right wrist. AMENDED RESPONSE Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring Plaintiff to answer why the glass fell, Plaintiff answers as follows: I placed the glue in the appropriate spots and then installed the mirror puttingpressure approximately 5 minutes then releasing to go down the ladder to pick up a block. I had to do this on my own since Joe refused to allow anyone to help me. For jobs like this, it is a two person job, so I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” If I would have been allowed to have a helper, this incident would have been prevented because I would not have had to let go of the glass and climb down the ladder as I would have had someone to hand me what I needed next and the glass likely would not have fallen and injured m For each and every separate piece of glass which fell and/or struck the plaintiff, please state how and why the glass became detached from the wall the other structure to which it was affixed, including how and why the glass became detached or removed from the wall or other structure, who detached or remove the glass from the wall or other structure, whether the glass was removed or detached from the wall or other structure on purpose or by accident, who removed or detached to the glass from the wall or other structure, what caused the glass to fall, the reason why the glass was removed or detached from the wall or other structure. ANSWER: Objection. Plaintiff objects to this request as unduly burdensome and over broad. Subject to and without waiving the foregoing, Plaintiff responds as follows: I had placed a J molding to put mirrors and had already placed 3 mirrors in place on the right side of the door when I placed the fourth mirror above the door I placed majestic glue on sheetrock and placed the fourth mirror as I came down the ladder seconds later it detached and fell on my head cutting my nose and my right wrist. AMENDED RESPONSE Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring Plaintiff to answer why the glass fell, Plaintiff answers as follows: I placed the glue in the appropriate spots and then installed the mirror puttingpressure approximately 5 minutes then releasing to go down the ladder to pick up a block. I had to do this on my own since Joe refused to allow anyone to help me. For jobs like this, it is a two person job, so I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” If I would have been allowed to have a helper, this incident would have been prevented because I would not have had to let go of the glass and climb down the ladder as I would have had someone to hand me what I needed next and the glass likely would not have fallen and injured me. Please explain in detail the standard practice for installing a mirror like that mirror being installed at the time of the accident, including but not limited to what tools are typically used, why you did or did not use those typical tools, how the tools are used to affix the mirror to the frame, and when each tool and/or material is used during installation. ANSWER_ Objection. Plaintiff objects to this request to the extent it is vague, ambiguous, andunclear Subject to and without waiving the foregoing, Plaintiff responds as follows: The area where the mirror was placed was cleaned and prepared I used majestic glue. Majestic glue is placed with a pallet to the sheetrock and the mirror is then placed and it sticks to glue and sheetrock AMENDED RESPONSE Pursuant to the Rule 11 Agreement entered between the Parties on June 8, 2020 wherein the Parties stipulated to limit the request the “industry standard practice for installing a mirror”, Plaintiff withdraws his objection and amends his answer as follows The area where the mirror was placed was cleaned and prepared I used majestic glue. Majestic glue is placed with a pallet to the sheetrock and the mirror is then placed and it sticks to glue and sheetrock. First, for jobs similar to the one resulting in this incident, I have a helper. I clean the area and then I prepare the area by placing glue on the required areas and then installing the mirror on the glue surface retaining pressure on the mirror for about approximately 5 minutes. Because jobs like this require two people, I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” It is my understanding that the industry standing for installing glass and mirrors is that there is a second person around to help with handling and installing the glass or mirror. If you contend Defendants failed to warn you about the dangerous condition that resulted in the accident that makes the basis of this suit, please describe in detail and in your own words, what is the dangerous condition, why is the condition dangerous, who created the dangerous condition, and what steps or actions defendants should have taken to notify you that it is foreseeable that a mirror may fall shortly after being installed. ANSWER: Objection. Plaintiff objects to this request to the extent this request requires Plaintiff to form a legal conclusion. Subject to and without waiving the foregoing, Plaintiff responds as follows: Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me AMENDED RESPONSE Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring Plaintiff to state the dangerous condition, Plaintiff answers as follows: Defendants failed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. Because jobs like this require two people, I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” Defendants did not warn me that it would be dangerous for me to do the job on my own. Further, Defendants failed to warn me of any dangerous conditions existing with the walls or in the areas where I was hired to install the mirrors that would result with the mirror falling on me and injuring me. Defendants know of the industry standard as they have been my bosses for years and have run their business where I worked for many years. Defendants knew that they were sending me to their personal home to install mirrors without proper help and without ensuring a safe condition or conditions. If you contend Defendants failed to properly inspect the premises for the dangerous condition that resulted in the accident that makes the basis of this suit, please describe in detail and in your own words, at what time did the condition become dangerous, (was it before you affixed the mirror to the wall or after you affixed the mirror to the wall), how could the defendants have inspected the mirror before it was installed, and what steps or actions defendants should have taken to notify you that it is foreseeable that a mirror may fall shortly after being installed. ANSWER: Defendants failed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me AMENDED RESPONSE Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring Plaintiff to state the dangerous condition, Plaintiff answers as follows: Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me Because jobs like this require two people I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” In doing so, he created a dangerous condition requiring me to do the job on my own. Further, Defendants did not inspect the walls and areas where I was hired to install the mirrors to assure the conditions were safe. Defendants know of the industry standard as they have been my bosses for years and have run their business where I worked for many years. Defendants knew that they were sending me to their personal home to install mirrors without proper help and without ensuring a safe condition or conditions. If you contend Defendants failed to maintain the premises in a reasonably safe condition and that failure resulted in the accident that makes the basis of this suit, please describe in detail and in your own word how or in what way defendant failed to maintain the premises and how could the defendants have known that the mirror would come loose before installation. ANSWER _ Defendants failed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. AMENDED RESPONSE: Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring Plaintiff to state the dangerous condition, Plaintiff answers as follows: Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. Because jobs like this require two people Lasked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” In doing so, he created a dangerous condition requiring me to do the job on my own. Further, Defendants failed to keep the walls or in areas where I was hired to install the mirrors in a safe condition appropriate for the installation of mirrors. Defendants know of the industry standard as they have been my bosses for years and have run their business where I worked for many years. Defendants knew that they were sending me to their personal home to install mirrors without proper help and without ensuring a safe condition or conditions. If you contend Defendants permitted the premises to remain in an unsafe condition and that resulted in the accident that makes the basis of this suit, please describe in detail and in your own words, at what time did the premises become unreasonably dangerous, (was it before you affixed the mirror to the wall or after you affixed the mirror to the wall), who made the premises unsafe, how could the defendants have known that the mirror would come loose before installation, what condition was unsafe, and what steps or actions defendants should have taken notify you that it is foreseeable that a mirror may fall shortly after being installed. ANSWER: Defendants failed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. AMENDED RESPONSE Pursuant to the Court’s Order on June 8, 2020 entered into the record requiring Plaintiff to state the dangerous condition, Plaintiff answers as follows: Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. Because jobs like this require two people I asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” In doing so, he created a dangerous condition equiring me to do the job on my own. In doing so, he created a dangerous condition, permitting the premises to remain unsafe, by requiring me to do the job on my own. Further, Defendants failed to keep the walls or in areas where I was hired to install the mirrors in a safe condition appropriate for the installation of mirrors. Defendants know of the industry standard as they have been my bosses for years and have run their business where I worked for many years. Defendants knew that they were sending me to their personal home to install mirrors without proper help and without ensuring a safe condition or conditions. If you contend that Mujadzic, Inc. d/b/a Century Glass & Interiors deviated from standard practices and procedures, please describe in detail and in your own words, what are the standard practices for installing a mirror, what are the standard procedures for installing a mirror, how did you learn about the standard practices for installing a mirror, how did you learn about the standard procedure for installing a mirror, how did Century Glass & Interiors deviate from those standard practices and procedures, how anyone other than you deviated from the standard practices and procedures, and who, other than you, was present at the installation. ANSWER: Objection. Plaintiff objects to this request as it requires Plaintiff to provide a legal conclusion. Plaintiff further objects to this request as it is available from a more convenient source, specifically Defendants themselves. Subject to and without waiving the foregoing, Plaintiff responds as follows: Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. AMENDED RESPONSE Pursuant to the Rule 11 Agreement entered between the Parties on June 8, 2020 wherein the Parties stipulated to limit the requestto the “ companystandard practice for installing a mirror”, Plaintiff withdraws his objection and amends his answer as follows Defendantsfailed to allow Felipe or Rosemary to go assist me on the job. Defendants did not approve me to take extra help as he didn’t want Felipe or Rosemary to go. I believed if I would have had extra help the incident would have not happen as I had to come down the ladder to reach material and supplies and if help would have been there they would have just handed it to me. Because jobs like this require two people L asked Joe to allow Felipe or Rosa Maria to assist me, but Joe refused to allow anyone to help me. When I asked Joe for help his response was: “Why do you need help? For someone to go hold your testicles?” In doing so, Defendants deviated from industry standard installation practices. Mujadzic, Inc. d/b/a Century Glass did not have consistent standards. Sometimes Defendant Joe Mujadzic would allow me to have a helper and sometimes he would not. On this particular job, both Rosamaria and Felipe were available to help me, but Defendants did not allow me to have a helper. Instead Defendants made the decision to send me do the installation by myself. Defendants know of the industry standard as they have been my bosses for years and have run their business where I worked for many years. Defendants knew that they were sending me to their personal home to install mirrors without proper help and ithout ensuring a safe condition or conditions. Cause No. 18-DCV-257639 RAFAEL HERNANDEZ IN THE DISTRICT COURT OF Plaintiff, Vv. MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS GLASS AND INTERIORS, MAYBRITT MUJADZIC, and JOE MUJADZIC, Defendants. 434" JUDICIAL DISTRICT UNSWORN DECLARATION My name is Rafael Hernandez. My date of birth is February 8, 1973 and my address for purposes of this litigation is in the care of McCathern, 2000 West Loop S., Suite 1850, Houston, Texas 771027. 1 declare under penalty of perjury that the facts described in the foregoing Plaintiff Rafael Hernandez’s First Amended Responses to Defendant Joe Mujadzic’s First Set of Interrogatories are true and correct. Executed in Harris County, Texas on this__25 day of June, 2020. Kaeos lle Rafael Hernandez Cause No. 18-DCV-257639 RAFAEL HERNANDEZ IN THE DISTRICT COURT OF Plaintiff, Vv. MUJADZIC, INC. d/b/a CENTURY FORT BEND COUNTY, TEXAS GLASS AND INTERIORS, MAYBRITT MUJADZIC, and JOE MUJADZIC, Defendants. 434" JUDICIAL DISTRICT UNSWORN DECLARATION My name is Rafael Hernandez. My date of birth is February 8, 1973 and my address for purposes of this litigation is in the care of McCathern, 2000 West Loop S., Suite 1850, Houston, Texas 77027. I declare under penalty of perjury that the facts described in the foregoing Plaintiff Rafael Hernandez’s First Amended Responses to Defendant Maybritt Mujadzic’s First Set of Interrogatories are true and correct. Executed in Harris County, Texas on this 25 % day of June, 2020. 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