Southeast Texas Record

Sunday, April 5, 2020

Employee who caught on fire during at-work accident loses appeal

By Charmaine Little | Oct 16, 2019

Justice Ken Wise - 14th Court of Appeals

HOUSTON -- The Texas 14th Court of Appeals ruled that a former Austin Budget Signs Inc. employee could not prove that two individuals he sued were not separate from ABS, affirming a summary judgment for the defendants.

Durham sued ABS and Barbara and Jules Accardi after catching fire and falling 25 feet while working on an advertising sign project. He alleged negligence, negligence per se, and gross negligence. The lower court granted the Accardis’ motion for traditional summary judgment.

Appellate Justice Jerry Zimmerer wrote, “The Accardis’ motion for summary judgment on Durham’s claims against them in their individual capacities must be affirmed because Durham did not address all summary judgment grounds asserted by the Accardis in their motion.” Justice Ken Wise concurred with Zimmerer.

Although Durham said in his appeal that there is a scintilla of evidence that the Accardis owed him a standard of care, he failed to address issues in the Accardis’ summary judgment such as the notion that Durham did not prove that they breached a duty against him or, if they did, he did not show that that alleged breached caused his injuries.

The judges also determined that the lower court correctly gave the Accardis’ summary judgment concerning Durham’s “piercing the corporate veil” claims. They explained that an alter ego liability allows a plaintiff to penetrate an organization’s “corporate veil” and hold them and their individual officers and workers responsible for the organization’s rules. But the Accardis successfully argued that Durham failed to prove that they were a completely separate entity from ABS, such as proving that they didn’t have separate properties from the company.

“Durham did not point out any other summary judgment evidence supporting his alter ego claim,” Zimmerer wrote. “The Accardis’ motion for summary judgment on Durham’s sham to perpetrate a fraud claim must be affirmed because Durham did not address this claim in his summary judgment response or in his appellate brief.”

Justice Charles A. Spain dissented the ruling in his opinion and asked whether an appellate court should provide more summary judgment than was asked, causing a final judgment. 

“I believe the answer is ‘no,’” Spain wrote. “This court could abate the appeal and let the trial court figure it out.” 

He said the court lacks a final judgment and argued that the appeals court does not have subject-matter jurisdiction.

Durham previously worked for ABS and was considered an at-will employee. At the time of his injuries, the company did not utilize workers’ compensation insurance. Durham also did not work for the Accardis in their individual capacities during this time. 

Durham’s injury stemmed from an accident as he was removing a 15-foot long angle frame on a sign. The sign bended and twisted, and Durham tried to stop it from falling by reinstalling the top angle iron frame on the sign. But the angle iron frame hit a power line and Durham caught on fire. He fell 25 feet to the ground, causing him to experience serious burns and other injuries.

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State of Texas 14th Court of Appeals