The Dallas Court of Appeals, in an 8-5 decision issued Thursday, granted review of a personal injury case and reversed the trial court’s no-evidence summary judgment for the defendant.
The analysis of the en banc majority in Hernandez v. Sun Crane & Hoist, Inc., limits the scope of no-evidence summary judgments while expanding the permissible inferences from circumstantial evidence.
Hernandez, a construction worker, was injured in a workplace accident. The dissent summarized his claim by saying “he fell from a ‘rebar cage’ while attempting to place on the cage a concrete form suspended from a crane.” He sued JLB Builders, the general contractor, for negligence. The trial court found that JLB had no duty to Hernandez because he offered no evidence of its “actual control” over his work. A panel of the Dallas Court of Appeals affirmed in 2018.
The en banc court reversed on March 26th in an opinion by Justice Cory Carlyle. While the opinion discusses the basic elements of Hernandez’s claim, the key language appears in footnote 9. The majority found “that the original panel’s opinion represents a serious departure from precedent in the review of no-evidence summary judgment cases and therefore warrants en banc review under Texas Rule of Appellate Procedure 41.2 to ‘secure or maintain uniformity of the court’s decisions.’”
Specifically, the majority identified four pieces of evidence that, taken together, were sufficient to meet Hernandez’s burden: (1) provisions in the relevant subcontract that addressed “schedule control and mandatory safety harness use,” (2) testimony that “JLB supervisory employees were on-site on the day of the accident and knew the cage could fall over in the event of strong wind or improper bracing,” (3) “Hernandez’s testimony that he saw JLB supervisors looking at the cage’s bracing prior to the accident”; and (4) testimony that “the wind speed was 15–25 miles per hour on the day of the accident and Hernandez was told to jump, but was tethered to the cage by his safety harness.”
All Democratic justices joined the majority opinion, and all Republican justices joining two dissents. The first, written by Justice David Bridges, disagreed with the majority’s legal analysis, arguing: “The majority simply makes Hernandez’ argument for him, asserting without support that its ‘cluster of factors’ relate to Hernandez’ injury and establish even a scintilla of evidence. The majority’s argument is, at each step, in direct conflict with Texas Supreme Court authority.” The second dissent, by Justice Bill Whitehill, argued that “the case was not enbancworthy in the first place.”
Substantively, the majority’s opinion is important because it recognizes that several pieces of evidence, no one dispositive by itself, can meet a party’s burden to respond to a no-evidence summary judgment motion. Procedurally, it reflects a consensus on the court to reverse a trial court and panel opinion. Since the 2018 election, other civil cases seeking damages remedies have received consideration for en banc review. They produced several concurrences and dissents but the full court did not reach a consensus to reverse the panel, as it did in Hernandez.
David Coale is a partner at Lynn Pinker Cox & Hurst in Dallas.