Injured bricklayer loses appeal; justices affirm take-nothing judgment

David Yates Apr. 20, 2010, 8:44am

The Ninth District Court of Appeals of Texas recently affirmed a Montgomery County judge's ruling that dismissed a homebuilder from a personal injury lawsuit.

According to court records, bricklayer Jose Maldonado was helping to construct the Sterling Green Condominiums in the Woodlands when he fell 15 feet and sustained a back injury requiring surgical repair and eight days of hospitalization.

Maldonado filed a suit in Montgomery County, alleging D. R. Horton-Emerald negligently failed to provide him with a fall-restraint device.

In 2008, Judge Cara Wood of the 284th District Court granted the defendant's no evidence motion for summary judgment, ruling that Maldonado take nothing.

D. R. Horton-Emerald had argued the independent subcontractor who employed Maldonado controlled the premises and that the company had no knowledge of the dangerous condition.

Maldonado appealed the ruling and on April 8, Ninth District justices affirmed Wood's judgment.

"The owner of property generally does not owe a duty to ensure that an independent contractor performs its work in a safe manner," Justice David Gaultney writes in the court's memorandum opinion.

"Here, there is no evidence that appellees controlled the means, methods, or details of the brick work, that appellees knew about the lack of fall-restraint devices, or that appellees approved these alleged practices. The trial court therefore did not err in granting the summary judgment."

Court papers show that Maldonado lost his balance and fell while throwing bricks to a higher level.

In his appeal, Maldonado argued "that the trial court erred in granting summary judgment because the summary judgment evidence shows appellees had the requisite control and knowledge of a dangerous condition, and the contract relied on by appellees is a sham contract."

Conversely, D. R. Horton-Emerald asserted that Maldonado‟s claims are governed by Chapter 95 of the Texas Civil Practice and Remedies Code, and that section 95.003 shields Horton-Emerald from liability, court papers say.

Maldonado was represented by attorney John Leger.

D. R. Horton-Emerald was represented by attorney Carl R. Dawson.

Appeals Case No. 09-08-00451-CV
Trial Court Cause No. 05-06-05182 CV

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