United States Court of Appeals,

Fifth Circuit.

No. 93-1159

Summary Calendar.

George A. HARMON, Plaintiff-Appellant,

v.

GENERAL MOTORS CORPORATION, Defendant-Appellee,

v.

AETNA CASUALTY AND SURETY COMPANY, Intervening Defendant-Appellant.

Sept. 3, 1993.

Appeals from the United States District Court for the Northern District of Texas.

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

Plaint iff George Harmon, at the time in question, worked for Southern Systems, Inc. ("SSI").

SSI co ntracted with General Motors Corporation ("GM") to install a new conveyor system in t he

Arlington, Texas, assembly plant. Harmon was injured while attempting to ho ist parts from the

ground floor of the plant to the roof.

Prior to the accident, Harmon had been conveying materials to the roof using a crane outside

the plant. On November 9, 1989, Harmon and two employees decided to use an existing hoist inside

the plant. Harmon and two other workers entered an electrical substation room (the "substation")

to access the hoist; a sign reading "Authorized Personnel Only" was affixed to the door.

Inside the substation, a hole in the floor allowed the hoist to be lowered to the ground floor.

At the time of the accident, Harmon was on the ground floor guiding a basket filled wi th parts.

Several barricade poles, with ropes attached, surrounded the hole. During the hoisting operation, the

workers disturbed one of the poles, causing it to fall through the hole and onto Harmon's ankle. Each

barricade pole consisted of an automobile wheel rim with three feet of pipe welded to it.1 Aetna Casualty and Surety Company intervened, claiming it was subrogated to Harmon's

rights because it had paid workers' compensation benefits under SSI's policy.

2 Harmon does not allege that GM's conduct amounted to willful or wanton conduct or gross

negligence. Because Texas law requires a trespasser to show such a breach of duty to recover in

tort, Smither v. Texas Utils. Elec. Co., 824 S.W.2d 693, 695 (Tex.App.—El Paso 1992, writ

dism'd by agreement), Harmon's claim fails if the district court correctly determined that he was a

trespasser. According to the contract between GM and SSI, SSI's workers could not use GM's equipment

or be present in undesignated areas of the plant without GM's permission. Harmon knew of these

rules. No one at GM ever gave permission to any of SSI's employees either to be present in the

substation or to use the hoist. Harmon only obtained permission from one of SSI's superviso rs.

Those supervisors acknowledge that they never asked GM for permission to use either the substation

or the hoist and admit that GM never would have authorized such use. Although Harmon apparently

had used the hoist on two previous occasions, he produced no evidence that GM knew of such use.

After seeking and obtaining workers' compensation benefits for his injury, Harmon sued GM

fo r his injury, claiming a premises defect. 1 After one year of discovery, GM filed a motion fo r

summary judgment. After hearing and full briefing, the district court granted GM's motion for

summary judgment on the ground that Harmon was a trespasser.

II.

Alleging that he was an invitee, Harmon argues that the district court erred in granting

summary judgment on the basis that he was a trespasser. 2 In Texas, employ ees of a cont ractor

performing work at a plant can be considered invitees as to part of the pl ant and trespassers as to

other parts. The Texas Supreme Court has explained the rule as follows:

Thus, a person who is invited or permitted to enter a particular part of the land becomes a

trespasser if he enters another part of the land. Where a person while lawfully on the property

of another or on public property as an invitee leaves that porti on of the property on which he

has been invited, or uses the property on a venture in his own interests and not wit hin t he

scope of his invitation or purpose for which the property was reasonably intended, he loses

his status as an invitee and becomes a trespasser or mere licensee.

Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S .W.2d 598, 602-03 (1954)

(citation and quotation marks omitted).

Because this case comes before us o n summary judgment, we review the district court's3 Although supporting our holding, the fact that Harmon personally knew that he should have

obtained GM's permission is not determinative. The contract between SSI and GM is controlling,

regardless of Harmon's knowledge. decision de novo, viewing all facts in the light most favorable to Harmon. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Here, however, the

relevant facts are undisputed; the parties contest only the legal significance of those facts. Where

the basic facts are established, the plaintiff's status as a trespasser, invitee, or licensee is a question

of law. L echuga v. Southern Pac. Transp. Co., 949 F.2d 790, 794 & 799 (5th Cir.1992) (per curiam)

(Texas case); Olivier v. Snow den, 426 S.W.2d 545, 550 (Tex.1968).

Harmon was a trespasser as a matter of law. GM and SSI had a contract that specified that

SSI's employees could not use GM's equipment or enter undesignated areas of the plant without

permission. Quite simply, under the terms of the contract, Harmon was a trespasser both because he

entered the substation without GM's permission and because he used the hoist without its approval.

In other words, the parties have determined by contract that employees of SSI become trespassers

whenever they enter undesignated areas or used GM's equipment. 3

Relying upon Amoco Chems. Corp. v. Sutton, 551 S.W.2d 459, 462

(Tex.Civ.App.—Eastland 1977, writ ref'd n.r.e.), Harmon argues that invitee status extends to areas

that a reasonable person would think are open to him. A reasonable person, however, woul d not

think a room marked "Authorized Personnel Only" was open to him. Moreover, thi s d ictum is

irrelevant to the case before us. Where a party has agreed by contract to delineate areas and

equipment that are off limit s, an employee of that party becomes a trespasser as a matter of law when,

without permission, he enters such an area or uses such equipment. Because the contract specifies

what areas are off limit s, a reasonable person would not think such areas are open to him. Although

some cases may present a question of whether implied permission has been given, this case raises no

such issue.

The judgment of the district court is AFFIRMED.