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Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Oscar Castillo
CAUSE NO. C-3057-22-I
DAVID GARCIA, § IN THE JUDICIAL DISTRICT
Plaintiff, §
§
Vs. §
§
§ 398TH DISTRICT COURT
RICHARD L. MOORE AND §
MOORE, LYLES, MCCARTY & §
MCGILVRAY, L.L.P. §
Defendants. § HIDALGO COUNTY TEXAS
DEFENDANTS’ NO-EVIDENCE AND TRADITIONAL MOTION FOR
SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID
NOW COMES Defendants, Richard L. Moore and Moore, Lyles, McCarty &
Mcgilvray, L.L.P., filing this No-Evidence and Traditional Motion for Summary Judgment,
for such consideration, will show unto the Court the foregoing, to-wit:
BACKGROUND
Plaintiff David Garcia brought this negligence and premises liability lawsuit against
Defendants Richard L. Moore and Moore, Lyles, McCarty & McGilvray, LLP alleging he
sustained personal injuries on August 18, 2020 while performing tree trimming work as an
independent contractor at Defendants' office building located at 501 W. Nolana Ave.,
McAllen, Texas. Specifically, Plaintiff contends he lacerated his right hand, fingers, and
wrist when the chainsaw he was using to cut tree branches slipped while working at the
direction and supervision of Defendant Moore. Plaintiff asserts claims of negligence and
premises liability.
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Defendants Moore and Moore, Lyles, McCarty & McGilvray, LLP now move for
no-evidence and traditional summary judgment seeking dismissal of Plaintiff's claims in
their entirety based on the grounds discussed herein.
I. NO-EVIDENCE SUMMARY JUDGMENT STANDARD
When a party moves for summary judgment under Texas Rule of Civil Procedure
166a(i), asserting there is no evidence of one or more essential elements of the non-
movant's claims, the burden shifts to the non-movant to present enough evidence to be
entitled to a trial. See Tex. R. Civ. P. 166a(i) (See notes and comments); Ford v. City State
Bank of Palacios, 44 S.W.3d 121, 128 (Tex. App. - Corpus Christi 2001, no pet). Thus, no-
evidence summary judgment should be granted if the non-movant fails to present evidence
that raises a genuine fact issue on the challenged elements. Id. If the non-movant is unable
to provide enough evidence, the trial judge must grant the no-evidence motion. Howell v.
Hilton Hotels Corp., 84 S.W.3d 708, 715 (Tex. App. - Houston [1st Dist.] 2002, pet.
Denied); General Mills Restaurant, Inc. v. Texas Wings, Inc., 12 S.W.3d 827,832 (Tex.
App. - Dallas 2000, no pet).
II. PLAINTIFF WAS AN INDEPENDENT CONTRACTOR:
It is undisputed Plaintiff was an independent contractor retained by Defendants to
perform landscaping work on Defendants’ property. Plaintiff testified he has worked as a
landscaper in McAllen for almost 50 years, since 1983, only two years after graduating
high school (Garcia Depo 10:1-25; 11:1-14). He owns his own equipment, including lawn
mowers, chainsaws, ladders, and other tools he uses for each job (Garcia Depo 9:1-15;
18:3-6; 22:5-23:1). Plaintiff testified he purchased most of his equipment from Home
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Depot or similar stores (Garcia Depo 9:20-24; 10:2-4) and the subject instrument that
caused his injury, namely the chainsaw was owned by Plaintiff. (Garcia Depo 8:6-25)
Plaintiff met with Defendants on prior occasions to give quotes and negotiate prices
before performing landscaping jobs at Defendants’ office building (Garcia Depo 39:7-25;
40:1-25; 41:1-22). After agreeing on the scope and price for the work, Plaintiff performed
the jobs on his own using his own equipment, without supervision from Defendants or
Defendants’ staff (Garcia Depo 42:15-25; 43:1-4; 46:1-25; 47:1-25; 48:1-25; 49:1-25). He
testified he directed any helpers, such as Marcos Amaya, that assisted him with the work
(Garcia Depo 9:13-25). Plaintiff then invoiced Defendants upon completion of the
negotiated work (Garcia Depo 41:23-25). According to the Plaintiff, this was done
approximately 10 times at Defendants’ office prior to the incident made the basis of this
lawsuit (Garcia Depo 39:7-11). (see Exhibit “A” – Deposition Transcript for Plaintiff
David Garcia).
Defendants Moore also testified in his deposition that his office does not employ
any landscapers or yard maintenance workers (Moore Depo 12:10-14). He stated “We hire
contractors to come out and do maintenance or repairs or -- such as Mr. Garcia, those sorts
of things” (Moore Depo 12:10-14). Significantly, Defendants explicitly testified he does
not supervise contractors such as Mr. Garcia that are hired to perform repairs or
maintenance on his properties (Moore Depo 13:22-25; 14:1). (see Exhibit “B” – Deposition
Transcript of Defendant Richard Moore).
The undisputed evidence clearly establishes Plaintiff was hired by Defendants on
prior occasions to perform landscape maintenance and repairs on Defendants’ properties
as an independent contractor. On each occasion, Plaintiff used his own equipment to
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complete the work without direction or control by Defendants. As such, there is no
evidence suggesting an employment relationship between the parties.
III. DEFENDANTS CONTROLLED THE DETAILS OF PLAINTIFF’S
WORK:
Similarly, there is no evidence Defendants controlled the details or manner in which
Plaintiff performed his landscaping work on Defendants’ properties. As addressed under
section one, it is undisputed Plaintiff performed the work independently using his own
equipment, set his own schedules, negotiated prices beforehand, and directed any helpers
that assisted him - all without supervision by Defendants (Garcia Depo 9:1-25; 10:1-25;
11:1-14; 15:1-25; 41:15-25; 42:15-25; 43:1-4; 46:1-25; 47:1-25; 48:1-25). Plaintiff gave
verbal quotes to Defendants and they agreed on pricing before he began the work (Garcia
Depo 52:4-14).
Defendants’ deposition testimony further confirms he did not control or supervise
the landscaping work performed by Plaintiff or other contractors. Defendants Moore
testified “We don't know anything about landscaping, maintenance, any of those sorts of
things. So, if something needs to be repaired, we'll hire contractors like Mr. Garcia to come
out and do the work” (Moore Depo 13:11-16). He explicitly denied supervising or directing
Plaintiff’s work (Moore Depo 13:22-25; 14:1). Plaintiff confirmed these undisputed facts,
Defendant did not control Plaintiff’s actions. (Garcia Depo 9:1-25; 10:1-25; 11:1-14; 15:1-
25; 41:15-25; 42:15-25; 43:1-4; 46:1-25; 47:1-25; 48:1-25.
There is no evidence Defendants controlled or had the right to control the details of
Plaintiff’s work in any manner. Plaintiff performed the landscaping services as an
independent contractor using his own equipment and setting his own schedules.
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IV. PLAINTIFF HAD ACTUAL KNOWLEDGE OF A DANGEROUS
CONDITION(S) ON THE PROPERTY:
There is also no evidence Defendants knew of any unreasonably dangerous
condition regarding the tree work Plaintiff was performing at the time of the incident.
Plaintiff testified the accident occurred when the chainsaw blade caught as he was
trimming a tree limb (Garcia Depo 65:25; 66:1-25; 67:1-7; 68:1-25; 69:1-2). He explicitly
testified that he - not Defendants Moore - knew using a chainsaw to trim that particular
type of tree was dangerous and improper (Garcia Depo 78:25; 79:1-6). The chain saw was
Plaintiff's own equipment that he regularly used for his landscaping jobs (Garcia Depo 8:6-
25). Plaintiff admitted he was aware of the potential danger based on a prior incident he
witnessed, acknowledging using a chainsaw to trim certain trees is dangerous, particularly
given the way the saw can bounce or kick back if caught in the wood while cutting (Garcia
Depo 76:4-25; 77:1-25).
Notably, Defendants was not present when the accident occurred and did not
personally witness it (Garcia Depo 81:3-6; 82:1-7). Plaintiff continued working even after
he admittedly recognized the danger in using the chainsaw to trim the tree at issue. Given
Plaintiff’s concession he was subjectively aware of the danger, there is no evidence
Defendants knew about any unreasonable condition regarding the work Plaintiff was hired
to perform.
V. THE TREE TRIMMING WORK POSED AN UNREASONABLE RISK OF
HARM:
Based on the evidence, there is nothing establishing Plaintiff’s work in trimming
trees and cutting limbs on Defendants’ property posed an extreme or unreasonable danger.
Plaintiff had performed similar tree trimming work without incident on numerous prior
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occasions over his nearly 50-year landscaping career (Garcia Depo 9:13-25; 10:11; 40:1-
25). While Plaintiff opines that using the chainsaw was dangerous for the particular job
and tree at issue, there is no evidence suggesting ordinary tree trimming work of this nature
constitutes an extreme or unreasonable risk of harm to anyone. Plaintiff continued working
even with admitted knowledge of the potential danger and cannot rely on that subjective
awareness to meet his burden here. There is no objective evidence the work itself
constituted an extreme or unreasonable danger.
For the foregoing reasons, Defendants respectfully requests the Court grant his no-
evidence motion for summary judgment and dismiss Plaintiff’s negligence and premises
liability claims, as Plaintiff has produced no evidence supporting these essential elements
for which he carries the burden of proof.
VI. SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment when they show that there is no genuine
issue of material fact and that she is entitled to judgment as a matter of law. Tex. R. Civ.
P. 166a(c). Where, as here, Defendants moves for summary judgment under the “no
evidence” standard as demonstrated above as well as the “traditional” standard discussed
below, Defendant will show that meet the initial burden of conclusively negating at least
one essential element of each of the plaintiff's causes of action. Science Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the defendant meets this initial burden, they
are entitled to summary judgment unless the non-movant plaintiff presents summary-
judgment evidence raising a genuine issue of material fact as to one of the elements at
issue. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In
this case, there is no duty owed between Defendants and Plaintiff and if there’s no duty,
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then there can be no breach which could possibly be a proximate case of Plaintiff’s injuries.
Under this and many other cases reported in Texas, C.J. Doe v. Boys Clubs of Greater
Dallas, Inc., 868 S.W.2d 942, 948 (Tex. App.--Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex.
1995) addresses the principle that the existence of a duty is a prerequisite for any legal
liability due to negligence. It states, "When no duty exists, no legal liability can arise
because of negligence." This case highlights that duty is a fundamental aspect of negligence
cases and without a duty, there can be no breach that could be a proximate cause of the
plaintiff's injuries. Plaintiff is an independent contractor. Plaintiff can establish any of the
exceptions to the independent contractor rule of no liability between the independent
contractor and the third party that hires the independent contractor, as discussed below.
VII. TRADITIONAL MOTION FOR SUMMARY JUDGMENT
Additionally, Defendants moves for a traditional summary judgment dismissing
Plaintiff’s claims based on the following grounds:
It is undisputed Plaintiff was an independent contractor - not Defendants’ employee
precluding any duty to ensure Plaintiff’s safety regarding risks inherent in his work.
a) The deposition testimony and evidence overwhelmingly establish Plaintiff was
an independent landscaping contractor who had performed numerous jobs for
Defendants on prior occasions spanning many years. It is undisputed Plaintiff
conducted this work using his own equipment without direction or control by
Defendants (analysis cited above regarding Plaintiff’s independent contractor
status).
b) Texas premises owners generally have no duty to ensure independent
contractors safely perform their work. Painter v. Sandridge Energy, Inc., 511
S.W.3d 713, 716–17 (Tex. App.—El Paso 2015, pet. denied). Premises owners
owe no duty to protect independent contractors from risks inherent in the
contracted work. Id. As stated in Painter, “The general rule is that an owner or
occupier has no duty to see that an independent contractor performs the work
in a safe manner.”
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Here, it is conclusively established Plaintiff was acting as an independent contractor
hired to perform landscaping and tree trimming services for Defendants using Plaintiff’s
own equipment when the subject incident occurred. Accordingly, Defendants had no duty
to intervene or prevent risks inherent in Plaintiff’s work from causing him harm. Id. at 717.
Judgment for Defendants is proper as a matter of law regarding the essential element of
duty.
Plaintiff assumed responsibility for his own safety and knew of the danger at issue,
relieving any potential duty by Defendants. Plaintiff’s deposition reveals the following
undisputed facts precluding liability:
a) He is a professional landscaper with 50 years of experience in the field (Garcia
Depo 9:13-25);
b) He knowingly assumed responsibility for his own safety in selecting which
tools to use and controlling the manner of their use (Id.);
c) He admitted knowing that using the chainsaw to trim the tree at issue was
dangerous and risky (Garcia Depo 78:25; 79:1-6);
d) He acknowledged seeing a prior similar accident where someone was seriously
hurt by a kickback while improperly using a chainsaw, and therefore he was
actually aware that the precise risk that manifested in his case could occur
(Garcia Depo 76:4-25).
Despite admitted awareness of the significant danger posed by utilizing the
chainsaw improperly, Plaintiff voluntarily proceeded with full knowledge and appreciation
of the risk. He consciously assumed responsibility for his own safety by choosing to
encounter a known risk, thereby relieving any potential duty by Defendants. See Austin v.
Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015). Judgment for Defendants should be
granted regarding this additional basis negating duty as a matter of law.
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Defendants did not have actual knowledge of the allegedly dangerous condition.
While Plaintiff suggests Defendants “pressured” him to use the chainsaw by demanding he
finish promptly, the undisputed evidence shows Defendants lacked actual,
contemporaneous knowledge that using the chainsaw posed an extreme risk of harm to
Plaintiff. See County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002). As
addressed, Plaintiff admitted he was already aware of the danger before the incident based
on a prior accident he witnessed. Defendants himself was not present and did not observe
Plaintiff working. Plaintiff cannot establish or raise an issue of material fact regarding
Defendants having actual knowledge that using the chainsaw was extremely dangerous or
posed an unreasonable risk of harm. The dangerous condition was open and obvious to
Plaintiff, who was aware of the risk.
Premises owners owe no duty to warn of open and obvious dangerous conditions that an
independent contractor is aware of and chooses to confront despite the risk. Austin v.
Kroger Texas L.P., 465 S.W.3d 193, 204 (Tex. 2015). Plaintiff’s admission he knew of the
danger eliminates any duty to warn. His decision to proceed in light of a known risk is the
sole proximate cause of his injuries as a matter of law. Defendants did NOTHING that
caused Plaintiff’s injuries. Plaintiff admittedly caused his own injuries, and is therefore
responsible for his own acts.
VIII.
THE ACCIDENT DID NOT OCCUR ON DEFENDANTS' PROPERTY
Defendant Richard Moore testified in his deposition that his office building is
located at 501 W. Nolana Avenue (Moore Depo 7:10-12). He stated that he does not own
any other buildings at that intersection (Moore Depo 7:13-15). Plaintiff David Garcia
Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 9
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testified that the accident occurred while he was working on a tree located “on the right-
hand side” in the back patio area of Moore’s office building (Garcia Depo 45:10-46:11).
However, the photographs taken after the incident clearly show Garcia working on a tree
at 425 Nolana Avenue, not 501 W. Nolana Avenue where Moore’s office is situated
(Exhibits 4 & 5). As set forth in United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471
(Tex. 2017), “[o]ne element common to both premises liability and negligent activity
claims is that the person the claimant sues must have possessed—that is, owned, occupied,
or controlled—the premises where the injury occurred.” Because the accident undisputedly
transpired at a different location from Defendants’ office building, there is no evidence
they owned, occupied, or controlled the premises in question. Accordingly, any premises
defect claim fails as a matter of law per the Texas Supreme Court's holding in United
Scaffolding. Defendants cannot be held liable for an alleged premises condition on property
they neither possessed nor controlled. As such, Plaintiff's premises liability claim should
be dismissed.
CONCLUSION
Plaintiff has no evidence Defendants had actual knowledge of the danger, while
Plaintiff himself did. Given Plaintiff's admitted awareness, no duty to warn arose.
Alternatively, Plaintiff's voluntary decision to encounter the risk despite his knowledge of
the precise danger is the sole proximate cause of his injury, disproving causation against
Defendants, Richard L. Moore and Moore, Lyles, McCarty & Mcgilvray, L.L.P. And,
finally, the subject accident did not occur on Defendants’ premises, therefore no duty.
PRAYER
Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 10
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WHEREFORE, PREMISES CONSIDERED, Defendants, Richard L. Moore
and Moore, Lyles, McCarty & Mcgilvray, L.L.P., therefore respectfully requests the Court
grant this traditional and no evidence motion for summary judgment and order that Plaintiff
takes nothing in this case based on the multiple independent grounds presented. Defendants
prays for any other relief he may be justly entitled.
Respectfully submitted,
THE MOORE LAW FIRM
4900 North 10th Street, Suite F3
McAllen, Texas 78504
Telephone: (956) 631-0745
Telecopier: (888) 266-0971
lit-docket@moore-firm.com
By: /s/ J. Michael Moore
J. Michael Moore
State Bar No. 14349550
R. Nicholas Moore
State Bar No. 2409814
Attorney for Defendants
Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 11
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CERTIFICATE OF SERVICE
Pursuant to Texas Rules of Civil Procedure, a true and correct copy of the foregoing
has been served upon all counsel of record in accordance with the Rules of Civil Procedure
on the 7th day of December, 2023.
Mr. Osiris A. Gonzalez
E-mail: oag@oaglawfirm.com
Mr. Juan Roberto Stillman
E-mail: juan@oaglawfirm.com
The Osiris A. Gonzalez Law Firm, P.L.L.C.
2015 E. Griffin Parkway
Mission, Texas 78572
Facsimile: 956-583-4401
Attorney for Plaintiff
/s/ J. Michael Moore
J. Michael Moore
Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 12
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.
J. Michael Moore
Bar No. 14349550
lit-docket@moore-firm.com
Envelope ID: 82366822
Filing Code Description: Motion (No Fee)
Filing Description: Defendants No-Evidence Motion for Summary
Judgment
Status as of 12/8/2023 8:13 AM CST
Associated Case Party: RichardLMoore
Name BarNumber Email TimestampSubmitted Status
Lit Docket lit-docket@moore-firm.com 12/7/2023 5:55:41 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Esmer Gutierrez esmer@oaglawfirm.com 12/7/2023 5:55:41 PM SENT
Juan RobertoStillman juan@oaglawfirm.com 12/7/2023 5:55:41 PM SENT
Osiris Gonzalez oag@oaglawfirm.com 12/7/2023 5:55:41 PM SENT
Preview
Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo CAUSE NO. C-3057-22-I DAVID GARCIA, § IN THE JUDICIAL DISTRICT Plaintiff, § § Vs. § § § 398TH DISTRICT COURT RICHARD L. MOORE AND § MOORE, LYLES, MCCARTY & § MCGILVRAY, L.L.P. § Defendants. § HIDALGO COUNTY TEXAS DEFENDANTS’ NO-EVIDENCE AND TRADITIONAL MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID NOW COMES Defendants, Richard L. Moore and Moore, Lyles, McCarty & Mcgilvray, L.L.P., filing this No-Evidence and Traditional Motion for Summary Judgment, for such consideration, will show unto the Court the foregoing, to-wit: BACKGROUND Plaintiff David Garcia brought this negligence and premises liability lawsuit against Defendants Richard L. Moore and Moore, Lyles, McCarty & McGilvray, LLP alleging he sustained personal injuries on August 18, 2020 while performing tree trimming work as an independent contractor at Defendants' office building located at 501 W. Nolana Ave., McAllen, Texas. Specifically, Plaintiff contends he lacerated his right hand, fingers, and wrist when the chainsaw he was using to cut tree branches slipped while working at the direction and supervision of Defendant Moore. Plaintiff asserts claims of negligence and premises liability. Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 1 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo Defendants Moore and Moore, Lyles, McCarty & McGilvray, LLP now move for no-evidence and traditional summary judgment seeking dismissal of Plaintiff's claims in their entirety based on the grounds discussed herein. I. NO-EVIDENCE SUMMARY JUDGMENT STANDARD When a party moves for summary judgment under Texas Rule of Civil Procedure 166a(i), asserting there is no evidence of one or more essential elements of the non- movant's claims, the burden shifts to the non-movant to present enough evidence to be entitled to a trial. See Tex. R. Civ. P. 166a(i) (See notes and comments); Ford v. City State Bank of Palacios, 44 S.W.3d 121, 128 (Tex. App. - Corpus Christi 2001, no pet). Thus, no- evidence summary judgment should be granted if the non-movant fails to present evidence that raises a genuine fact issue on the challenged elements. Id. If the non-movant is unable to provide enough evidence, the trial judge must grant the no-evidence motion. Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 715 (Tex. App. - Houston [1st Dist.] 2002, pet. Denied); General Mills Restaurant, Inc. v. Texas Wings, Inc., 12 S.W.3d 827,832 (Tex. App. - Dallas 2000, no pet). II. PLAINTIFF WAS AN INDEPENDENT CONTRACTOR: It is undisputed Plaintiff was an independent contractor retained by Defendants to perform landscaping work on Defendants’ property. Plaintiff testified he has worked as a landscaper in McAllen for almost 50 years, since 1983, only two years after graduating high school (Garcia Depo 10:1-25; 11:1-14). He owns his own equipment, including lawn mowers, chainsaws, ladders, and other tools he uses for each job (Garcia Depo 9:1-15; 18:3-6; 22:5-23:1). Plaintiff testified he purchased most of his equipment from Home Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 2 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo Depot or similar stores (Garcia Depo 9:20-24; 10:2-4) and the subject instrument that caused his injury, namely the chainsaw was owned by Plaintiff. (Garcia Depo 8:6-25) Plaintiff met with Defendants on prior occasions to give quotes and negotiate prices before performing landscaping jobs at Defendants’ office building (Garcia Depo 39:7-25; 40:1-25; 41:1-22). After agreeing on the scope and price for the work, Plaintiff performed the jobs on his own using his own equipment, without supervision from Defendants or Defendants’ staff (Garcia Depo 42:15-25; 43:1-4; 46:1-25; 47:1-25; 48:1-25; 49:1-25). He testified he directed any helpers, such as Marcos Amaya, that assisted him with the work (Garcia Depo 9:13-25). Plaintiff then invoiced Defendants upon completion of the negotiated work (Garcia Depo 41:23-25). According to the Plaintiff, this was done approximately 10 times at Defendants’ office prior to the incident made the basis of this lawsuit (Garcia Depo 39:7-11). (see Exhibit “A” – Deposition Transcript for Plaintiff David Garcia). Defendants Moore also testified in his deposition that his office does not employ any landscapers or yard maintenance workers (Moore Depo 12:10-14). He stated “We hire contractors to come out and do maintenance or repairs or -- such as Mr. Garcia, those sorts of things” (Moore Depo 12:10-14). Significantly, Defendants explicitly testified he does not supervise contractors such as Mr. Garcia that are hired to perform repairs or maintenance on his properties (Moore Depo 13:22-25; 14:1). (see Exhibit “B” – Deposition Transcript of Defendant Richard Moore). The undisputed evidence clearly establishes Plaintiff was hired by Defendants on prior occasions to perform landscape maintenance and repairs on Defendants’ properties as an independent contractor. On each occasion, Plaintiff used his own equipment to Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 3 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo complete the work without direction or control by Defendants. As such, there is no evidence suggesting an employment relationship between the parties. III. DEFENDANTS CONTROLLED THE DETAILS OF PLAINTIFF’S WORK: Similarly, there is no evidence Defendants controlled the details or manner in which Plaintiff performed his landscaping work on Defendants’ properties. As addressed under section one, it is undisputed Plaintiff performed the work independently using his own equipment, set his own schedules, negotiated prices beforehand, and directed any helpers that assisted him - all without supervision by Defendants (Garcia Depo 9:1-25; 10:1-25; 11:1-14; 15:1-25; 41:15-25; 42:15-25; 43:1-4; 46:1-25; 47:1-25; 48:1-25). Plaintiff gave verbal quotes to Defendants and they agreed on pricing before he began the work (Garcia Depo 52:4-14). Defendants’ deposition testimony further confirms he did not control or supervise the landscaping work performed by Plaintiff or other contractors. Defendants Moore testified “We don't know anything about landscaping, maintenance, any of those sorts of things. So, if something needs to be repaired, we'll hire contractors like Mr. Garcia to come out and do the work” (Moore Depo 13:11-16). He explicitly denied supervising or directing Plaintiff’s work (Moore Depo 13:22-25; 14:1). Plaintiff confirmed these undisputed facts, Defendant did not control Plaintiff’s actions. (Garcia Depo 9:1-25; 10:1-25; 11:1-14; 15:1- 25; 41:15-25; 42:15-25; 43:1-4; 46:1-25; 47:1-25; 48:1-25. There is no evidence Defendants controlled or had the right to control the details of Plaintiff’s work in any manner. Plaintiff performed the landscaping services as an independent contractor using his own equipment and setting his own schedules. Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 4 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo IV. PLAINTIFF HAD ACTUAL KNOWLEDGE OF A DANGEROUS CONDITION(S) ON THE PROPERTY: There is also no evidence Defendants knew of any unreasonably dangerous condition regarding the tree work Plaintiff was performing at the time of the incident. Plaintiff testified the accident occurred when the chainsaw blade caught as he was trimming a tree limb (Garcia Depo 65:25; 66:1-25; 67:1-7; 68:1-25; 69:1-2). He explicitly testified that he - not Defendants Moore - knew using a chainsaw to trim that particular type of tree was dangerous and improper (Garcia Depo 78:25; 79:1-6). The chain saw was Plaintiff's own equipment that he regularly used for his landscaping jobs (Garcia Depo 8:6- 25). Plaintiff admitted he was aware of the potential danger based on a prior incident he witnessed, acknowledging using a chainsaw to trim certain trees is dangerous, particularly given the way the saw can bounce or kick back if caught in the wood while cutting (Garcia Depo 76:4-25; 77:1-25). Notably, Defendants was not present when the accident occurred and did not personally witness it (Garcia Depo 81:3-6; 82:1-7). Plaintiff continued working even after he admittedly recognized the danger in using the chainsaw to trim the tree at issue. Given Plaintiff’s concession he was subjectively aware of the danger, there is no evidence Defendants knew about any unreasonable condition regarding the work Plaintiff was hired to perform. V. THE TREE TRIMMING WORK POSED AN UNREASONABLE RISK OF HARM: Based on the evidence, there is nothing establishing Plaintiff’s work in trimming trees and cutting limbs on Defendants’ property posed an extreme or unreasonable danger. Plaintiff had performed similar tree trimming work without incident on numerous prior Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 5 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo occasions over his nearly 50-year landscaping career (Garcia Depo 9:13-25; 10:11; 40:1- 25). While Plaintiff opines that using the chainsaw was dangerous for the particular job and tree at issue, there is no evidence suggesting ordinary tree trimming work of this nature constitutes an extreme or unreasonable risk of harm to anyone. Plaintiff continued working even with admitted knowledge of the potential danger and cannot rely on that subjective awareness to meet his burden here. There is no objective evidence the work itself constituted an extreme or unreasonable danger. For the foregoing reasons, Defendants respectfully requests the Court grant his no- evidence motion for summary judgment and dismiss Plaintiff’s negligence and premises liability claims, as Plaintiff has produced no evidence supporting these essential elements for which he carries the burden of proof. VI. SUMMARY JUDGMENT STANDARD A movant is entitled to summary judgment when they show that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). Where, as here, Defendants moves for summary judgment under the “no evidence” standard as demonstrated above as well as the “traditional” standard discussed below, Defendant will show that meet the initial burden of conclusively negating at least one essential element of each of the plaintiff's causes of action. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the defendant meets this initial burden, they are entitled to summary judgment unless the non-movant plaintiff presents summary- judgment evidence raising a genuine issue of material fact as to one of the elements at issue. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In this case, there is no duty owed between Defendants and Plaintiff and if there’s no duty, Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 6 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo then there can be no breach which could possibly be a proximate case of Plaintiff’s injuries. Under this and many other cases reported in Texas, C.J. Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942, 948 (Tex. App.--Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex. 1995) addresses the principle that the existence of a duty is a prerequisite for any legal liability due to negligence. It states, "When no duty exists, no legal liability can arise because of negligence." This case highlights that duty is a fundamental aspect of negligence cases and without a duty, there can be no breach that could be a proximate cause of the plaintiff's injuries. Plaintiff is an independent contractor. Plaintiff can establish any of the exceptions to the independent contractor rule of no liability between the independent contractor and the third party that hires the independent contractor, as discussed below. VII. TRADITIONAL MOTION FOR SUMMARY JUDGMENT Additionally, Defendants moves for a traditional summary judgment dismissing Plaintiff’s claims based on the following grounds: It is undisputed Plaintiff was an independent contractor - not Defendants’ employee precluding any duty to ensure Plaintiff’s safety regarding risks inherent in his work. a) The deposition testimony and evidence overwhelmingly establish Plaintiff was an independent landscaping contractor who had performed numerous jobs for Defendants on prior occasions spanning many years. It is undisputed Plaintiff conducted this work using his own equipment without direction or control by Defendants (analysis cited above regarding Plaintiff’s independent contractor status). b) Texas premises owners generally have no duty to ensure independent contractors safely perform their work. Painter v. Sandridge Energy, Inc., 511 S.W.3d 713, 716–17 (Tex. App.—El Paso 2015, pet. denied). Premises owners owe no duty to protect independent contractors from risks inherent in the contracted work. Id. As stated in Painter, “The general rule is that an owner or occupier has no duty to see that an independent contractor performs the work in a safe manner.” Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 7 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo Here, it is conclusively established Plaintiff was acting as an independent contractor hired to perform landscaping and tree trimming services for Defendants using Plaintiff’s own equipment when the subject incident occurred. Accordingly, Defendants had no duty to intervene or prevent risks inherent in Plaintiff’s work from causing him harm. Id. at 717. Judgment for Defendants is proper as a matter of law regarding the essential element of duty. Plaintiff assumed responsibility for his own safety and knew of the danger at issue, relieving any potential duty by Defendants. Plaintiff’s deposition reveals the following undisputed facts precluding liability: a) He is a professional landscaper with 50 years of experience in the field (Garcia Depo 9:13-25); b) He knowingly assumed responsibility for his own safety in selecting which tools to use and controlling the manner of their use (Id.); c) He admitted knowing that using the chainsaw to trim the tree at issue was dangerous and risky (Garcia Depo 78:25; 79:1-6); d) He acknowledged seeing a prior similar accident where someone was seriously hurt by a kickback while improperly using a chainsaw, and therefore he was actually aware that the precise risk that manifested in his case could occur (Garcia Depo 76:4-25). Despite admitted awareness of the significant danger posed by utilizing the chainsaw improperly, Plaintiff voluntarily proceeded with full knowledge and appreciation of the risk. He consciously assumed responsibility for his own safety by choosing to encounter a known risk, thereby relieving any potential duty by Defendants. See Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015). Judgment for Defendants should be granted regarding this additional basis negating duty as a matter of law. Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 8 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo Defendants did not have actual knowledge of the allegedly dangerous condition. While Plaintiff suggests Defendants “pressured” him to use the chainsaw by demanding he finish promptly, the undisputed evidence shows Defendants lacked actual, contemporaneous knowledge that using the chainsaw posed an extreme risk of harm to Plaintiff. See County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002). As addressed, Plaintiff admitted he was already aware of the danger before the incident based on a prior accident he witnessed. Defendants himself was not present and did not observe Plaintiff working. Plaintiff cannot establish or raise an issue of material fact regarding Defendants having actual knowledge that using the chainsaw was extremely dangerous or posed an unreasonable risk of harm. The dangerous condition was open and obvious to Plaintiff, who was aware of the risk. Premises owners owe no duty to warn of open and obvious dangerous conditions that an independent contractor is aware of and chooses to confront despite the risk. Austin v. Kroger Texas L.P., 465 S.W.3d 193, 204 (Tex. 2015). Plaintiff’s admission he knew of the danger eliminates any duty to warn. His decision to proceed in light of a known risk is the sole proximate cause of his injuries as a matter of law. Defendants did NOTHING that caused Plaintiff’s injuries. Plaintiff admittedly caused his own injuries, and is therefore responsible for his own acts. VIII. THE ACCIDENT DID NOT OCCUR ON DEFENDANTS' PROPERTY Defendant Richard Moore testified in his deposition that his office building is located at 501 W. Nolana Avenue (Moore Depo 7:10-12). He stated that he does not own any other buildings at that intersection (Moore Depo 7:13-15). Plaintiff David Garcia Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 9 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo testified that the accident occurred while he was working on a tree located “on the right- hand side” in the back patio area of Moore’s office building (Garcia Depo 45:10-46:11). However, the photographs taken after the incident clearly show Garcia working on a tree at 425 Nolana Avenue, not 501 W. Nolana Avenue where Moore’s office is situated (Exhibits 4 & 5). As set forth in United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017), “[o]ne element common to both premises liability and negligent activity claims is that the person the claimant sues must have possessed—that is, owned, occupied, or controlled—the premises where the injury occurred.” Because the accident undisputedly transpired at a different location from Defendants’ office building, there is no evidence they owned, occupied, or controlled the premises in question. Accordingly, any premises defect claim fails as a matter of law per the Texas Supreme Court's holding in United Scaffolding. Defendants cannot be held liable for an alleged premises condition on property they neither possessed nor controlled. As such, Plaintiff's premises liability claim should be dismissed. CONCLUSION Plaintiff has no evidence Defendants had actual knowledge of the danger, while Plaintiff himself did. Given Plaintiff's admitted awareness, no duty to warn arose. Alternatively, Plaintiff's voluntary decision to encounter the risk despite his knowledge of the precise danger is the sole proximate cause of his injury, disproving causation against Defendants, Richard L. Moore and Moore, Lyles, McCarty & Mcgilvray, L.L.P. And, finally, the subject accident did not occur on Defendants’ premises, therefore no duty. PRAYER Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 10 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo WHEREFORE, PREMISES CONSIDERED, Defendants, Richard L. Moore and Moore, Lyles, McCarty & Mcgilvray, L.L.P., therefore respectfully requests the Court grant this traditional and no evidence motion for summary judgment and order that Plaintiff takes nothing in this case based on the multiple independent grounds presented. Defendants prays for any other relief he may be justly entitled. Respectfully submitted, THE MOORE LAW FIRM 4900 North 10th Street, Suite F3 McAllen, Texas 78504 Telephone: (956) 631-0745 Telecopier: (888) 266-0971 lit-docket@moore-firm.com By: /s/ J. Michael Moore J. Michael Moore State Bar No. 14349550 R. Nicholas Moore State Bar No. 2409814 Attorney for Defendants Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 11 Electronically Filed 12/7/2023 5:55 PM Hidalgo County District Clerks Reviewed By: Oscar Castillo CERTIFICATE OF SERVICE Pursuant to Texas Rules of Civil Procedure, a true and correct copy of the foregoing has been served upon all counsel of record in accordance with the Rules of Civil Procedure on the 7th day of December, 2023. Mr. Osiris A. Gonzalez E-mail: oag@oaglawfirm.com Mr. Juan Roberto Stillman E-mail: juan@oaglawfirm.com The Osiris A. Gonzalez Law Firm, P.L.L.C. 2015 E. Griffin Parkway Mission, Texas 78572 Facsimile: 956-583-4401 Attorney for Plaintiff /s/ J. Michael Moore J. Michael Moore Defendants’ No-Evidence and Traditional Motion for Summary Judgment Page 12 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. J. Michael Moore Bar No. 14349550 lit-docket@moore-firm.com Envelope ID: 82366822 Filing Code Description: Motion (No Fee) Filing Description: Defendants No-Evidence Motion for Summary Judgment Status as of 12/8/2023 8:13 AM CST Associated Case Party: RichardLMoore Name BarNumber Email TimestampSubmitted Status Lit Docket lit-docket@moore-firm.com 12/7/2023 5:55:41 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Esmer Gutierrez esmer@oaglawfirm.com 12/7/2023 5:55:41 PM SENT Juan RobertoStillman juan@oaglawfirm.com 12/7/2023 5:55:41 PM SENT Osiris Gonzalez oag@oaglawfirm.com 12/7/2023 5:55:41 PM SENT