Affirmed and Opinion Filed July 19, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-00172-CV J. MANUEL DIAZ, Appellant V. D.R. WRIGHT ENTERPRISES, INC. A ND WRIGHT WAY CONSTRUCTION ENTERPRISES, INC., Appellees On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-01413-J 

### MEMORANDUM OPINION Before Justices Bridges, Evans, and Whitehill Opinion by Justice Bridges Appellant J. Manuel Diaz sustain ed injuries after falling off a roof. He filed suit against appellees D.R. Wright Enterprises, Inc. and Wright Way Construc tion Enterprises, Inc. (Wright Way) alleging negligence, premises liability, and negligent act ivity. 1 Wright Way filed a traditional and no-evidence motion for summary judgment, which the trial court granted. On appeal, Diaz argues the trial court erred by granting summary j udgment. We affirm. Background Ray Wright is the owner and president of Wright Way, a resident ial and commercial construction company. On June 6, 2013, Wright entered into an oral contract on behalf of Wright

1 Diaz also alleged a cause of action for negligence per se, but he does not assert on appeal that the trial court erred in gra nting summary judgment on that cause of action.–2– Way with Kent Ellis to provide v arious construction services, i ncluding replacing the roof on Ellis’s home and garage (the Project). Wright Way later entered into an oral agreement with Francisco Marin, a roofing contractor Wright Way had used many times in the past, to provide labor, t ools, and equipment to remove and replace shingles on the Ellis roof. Marin provided a bid of $3,760, which included providing labor, tools, and equipment (but not roofing material) and haul ing of debris. Wright Way agreed to provide shingles, nails, and fe lt paper for the Project. Marin subsequently entered into an oral agreement with Diaz, wh om Marin had worked with over the past twenty-five years “from time to time on proj ects.” Diaz agreed to provide all the labor, tools, and equipment for the Project. Wright had kn own Diaz for about five years and believed he was a competent roofer. However, Wright did not ha ve a relationship with Diaz other than through Marin and had only w orked with Diaz two or three t imes. Diaz and his crew replaced the roof on the home on June 14, 201 3. On June 15, 2013, Diaz began replacing the garage roof. Shortly before noon, Wright r eceived a call from Marin, who told him Diaz fell off the roof after removing some shingles an d slipping on the old felt paper underneath. Wright took Diaz to t he hospital for treatment of his injured foot. Diaz’s crew finished the Project on or about June 15, 2013. Wr ight Way paid Marin for the work on June 17, 2013. Marin subsequently paid Diaz and se nt him a 1099 to report his income from the Project. Diaz filed suit against Wright Way for negligence, negligent ac tivity, and premises liability. Wright Way filed a traditional and no-evidence moti on for summary judgment arguing, among other things, that it did not owe a duty to Diaz because Diaz was an independent contractor. The trial court granted Wright Way’s summary judgment motion wi thout specifying the grounds. This appeal followed.–3– Objections to Summary Judgment Evidence In his first issue, Diaz argues the trial court abused its disc retion by (1) considering Ray Wright’s affidavit (exhibit A) a nd Francisco Marin’s affidavit (exhibit B) attached to Wright Way’s summary judgment motion because the evidence was not comp etent and (2) considering Wright Way’s summary judgment reply and attached evidence becau se it was untimely. We begin by considering Diaz’s ob jections to the two affidavits attached to Wright Way’s motion for summary judgment. For preservation purposes, objections to “form” and “substance” are treated differently.
See Stewart v. Sanmina Tex. L.P ., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.). Failu re to affirmatively show that the a ffiant had personal knowledge o r that facts stated are “true and correct” are defects in form and must be preserved in the trial court. Id . (citing Grand Prairie Indep. Sch. Dist. v. Vaughan , 792 S.W.2d 944, 945 (Tex.1990); see also Bastida v. Aznaran , 444 S.W.3d 98, 104 (Tex. App.—Dallas 2014, no pet.); Bradley v. Mid-Century Ins. Co ., No. 05-05- 00856-CV, 2006 WL 1545324, at *1 (Tex. App.—Dallas June 7, 2006 , no pet.) (mem. op.). 2 An objection that a party is an interested witness is also a defec t in form that must be preserved in the trial court. See Ayati-Ghaffari v. Gumbodete , No. 05-14-01019-CV, 2015 WL 4482158, at *5 (Tex. App.—Dallas July 23, 2015, no pet.) (mem. op.). Accordin gly, by failing to obtain a ruling from the trial court on his personal knowledge and interested w itness objections, Diaz cannot raise these objections on appeal. Id. ; Bastida , 444 S.W.3d at 104.

2 To the extent Diaz argues lack of personal knowledge is a defe ct in substance that may be raised for the first time on appeal , we have recognized that failure to show how the affiant had personal kn owledge is a defect in form; ho wever, “if an affidavit on its f ace establishes the lack of personal knowledge, this woul d constitute a defect in substa nce.” See Bradley , 2006 WL 1545324, at *1 n.1; see also Old Republic Ins. Co. v. Cross , No. 05-14-01204-CV, 2015 WL 8014402, at *2 (Tex. App.—Dallas Dec. 7, 2015, no pet.) (mem. op.). Diaz’s objected to Wright a nd Marin’s affidavits because they did not explain how they acquir ed personal knowledge, not that th e affidavits, on their face, established a lack of personal knowledge.–4– Defects in the substance of the evidence do not require a writt en ruling, and such objections may be raised for the first time on appeal. Stewart , 156 S.W.3d at 207; Thompson v. Curtis , 127 S.W.3d 446, 450 (Tex. App.—Dallas 2004, no pet.). Substantive defects are those that leave the evidence legally insufficient and include affidavits which are nothing more than legal or factual conclusions. Stewart , 156 S.W.3d at 207; Bastida , 444 S.W.3d at 105. A conclusory statement is one that does not provide the underlying facts to support the c onclusion. Brown v. Brown , 145 S.W.3d 745, 751 (Tex. App.—Dalla s 2004, pet. denied). Diaz argues he “objected to Mr. Wright’s statements in the last four paragraphs of his affidavit because they are legal conclusions which he is unqual ified to state or factual conclusions unsupported by any facts or explan ations.” Diaz also objected to the first sentence of the last paragraph of Marin’s affidavit because they are “nothing more t han legal or factual conclusions . . . and does not provide the underlyi ng facts to support” them. We have held that such objections are not sufficiently specific. For example, in Stewart v. Sanmira Texas LP , we concluded “simply quoting one or more sentences from particular paragraphs and st ated ‘the following evidence is improper because it is conclusory and/or is not based on person al knowledge,” was not sufficiently specific. 156 S.W.3d at 207. We also concluded “identifying o nly the number of particular paragraphs and exhibits” was not enough to explain how statemen ts were conclusory. Id .; see also Anderson v. Limestone Cnty ., No. 10-07-00174-CV, 2008 WL 2629664, at *2–3 (Tex. App.— Waco, July 2, 2008, pet. denied) (mem. op.); Morales v. Uptown Props., Inc ., No. 05-05-00295- CV, 2005 WL 3418603, at *3 (Tex. App.—Dallas Dec. 1, 2005, no pet.) (mem. op.) (objections that statements are conclusory may not be conclusory themselves ). Diaz’s complaints about Wright’s and Marin’s affidavits suffer the same flaws. Diaz fa iled to “provide a description of the particular basis for the objection” or offer any explanation as to why he believed those portions of the affidavits are conclusory. Accordingly, we overrule Diaz’s first issue to the extent he raised–5– objections to Wright’s and Marin’s affidavits, and we shall con sider both documents in our summary judgment review. We now consider whether the trial court abused its discretion b y considering Wright Way’s reply and attached evidence to D iaz’s response to the summary j udgment motion. Diaz filed his response to Wright Way’s summary judgment motion on January 13, 2017. The hearing on the motion was set for January 20, 2017. Under Dallas County Local Rule 2.09, a reply brief must be filed and served no less than three days be fore the hearing. See D ALLAS C NTY

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. R. 2.09 (reply briefs in support of a motion for summary judgme nt must be filed and served no less than three days before the hearing). Wright Way filed its reply, with attached evidence, on January 18, 2017. The attached evidence consisted of two corre cted pages from Wright’s oral deposition taken on August 1, 2016. Relying on Dallas County Local Rule 2.09, Diaz argues Wright Wa y’s summary judgment reply was untimely and should not have been considered by the t rial court. First, the record does not reflect that Diaz objected, either in writing or at the sum mary judgment hearing, to the trial court’s consideration of the rep ly or the attached evidence. T hus, Dias did not preserve any error as to the trial court’s consideration of the reply or attached evidence. T EX

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. P. 33.1; Alaniz v. Hoyt , 105 S.W.3d 330, 340 (Tex. App.—Corpus Christi 2003, no pet.); Thompson v. Jefferies
& Co. , No. 14-00-01477-CV, 2002 WL 1970130, at *3 n.1 (Tex. App.—Hou ston [14th Dist.] Aug. 15, 2002, no pet.) (lack of objection to summary judgment reply and attached evidence filed two days before hearing preserv ed nothing for review). In any event, local r ule 2.09 provides, “Br iefs not filed and s erved in accordance with this paragraph likely will not be considered.” Id

. 3 By including the word “likely,” the rule provides

3 Generally, absent this local rule, courts have held there is n o deadline for filing a reply to a summary judgment response, a nd a reply may be filed up until the day of the hearing. Herrington v. Cote , No. 01-04-00212-CV, 2007 WL 926622, at *2 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet.) (mem. op.); Cmty. Initiatives, Inc. v. Chase Bank of Tex. , 153 S.W.3d 270, 280 (Tex. App.—El Paso 2004, no pet.); Shelton v. Sargent , 144 S.W.3d 113, 119 (Tex. App.—Fort Worth 2004, pet. denied).–6– discretion to the trial court t o consider documents filed outsi de of the local rule’s stated deadlines. Such discretion is consistent wit h the wide discretion given tr ial courts in managing their docket. See, e.g., Bagwell v. Ridge at Alta Vista Invs. I, LL C, 440 S.W.3d 287, 292 (Tex. App.—Dallas 2014, pet. denied). Before ruling on the motion, the trial jud ge stated she had read “all the depositions,” indicating she exer cised her discretion to consid er the reply and attached evidence.
Morales v. Barnes , No. 05-17-00316-CV, 2017 WL 6759190, at *5 (Tex. App.—Dallas Dec. 29, 2017, no pet.) (mem. op.) (trial court’s questions at hearing i ndicated her inclination to exercise discretion to rely on local rule 2.09 to not consider documents filed less than three days before hearing). Further, at the hearing, Diaz referenced the deposit ion testimony attached to the reply to argue the “corrected” testimony created a fact issue as to whet her Diaz was an employee rather than an independent contractor. Accordingly, the trial court d id not abuse its discretion by considering Wright Way’s summa ry judgment reply and attached co rrected deposition testimony. Having considered and overruled all of Diaz’s objections to the summary judgment evidence, we now turn to the merits of Wright Way’s no-evidence and traditional motion for summary judgment.
Standard of Review The standards of review for traditional and no-evidence summary judgments are well known. See Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). With respect to a traditional motion for summary judgment, the movant has the bur den to demonstrate that no genuine issue of mater ial fact exists and it is entitled to jud gment as a matter of law. T EX

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. P. 166a(c). We review a no-evid ence summary judgment under the same legal sufficiency standard used to review a directed verdict. T EX

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. P. 166a(i); Gish , 286 S.W.3d at 310. To defeat a no-evidence summary judgment, th e nonmovant is required to prod uce evidence that raises a–7– genuine issue of material fact on each challenged element of it s claim. Gish , 286 S.W.3d at 310;
see also T EX

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. P. 166a(i). In reviewing both a traditiona l and no-evidence summary judgmen t, we consider the evidence in the light most favorable to the nonmovant. Smith v. O’Donnell , 288 S.W.3d 417, 424 (Tex. 2009). We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not. Gish , 286 S.W.3d at 310. When a party files a hybrid summary judgment motion on both no- evidence and traditional grounds, we first review the trial court's judgment under the n o-evidence standard of review. Rico v. L-3 Commc’ns Corp ., 420 S.W.3d 431, 439 (Tex. A pp.—Dallas 2014, no pet.). Shoul d we determine summary judgment was appropriate under the no-evidenc e standard, we need not address issues related to the traditional summary judgment moti on. Id . However, if the Court is required to affirm the trial cou rt’s ruling on traditional grou nds, then we only addr ess the traditional grounds. See Shih v. Tamisiea , 306 S.W.3d 939, 945 n.8 (Tex. App.—Da llas 2010, no pet.). Negligence and Negligent Activity Because it is dispositive, we first address whether Diaz was a n independent contractor and whether he produced evidence of a genuine issue of material fac t concerning whether Wright Way owed him a duty because Wright Way retained “some control” over his work. The test to determine whether a worker is an employee rather th an an independent contractor is whether the employe r has the right to control the progress, details, and methods of operations of the work. Limestone Prods. Distribution, Inc. v. McNamara , 71 S.W.3d 308, 312 (Tex. 2002). The employer controls not merely the end sought t o be accomplished, but also the means and details of its accomplishment. Id . We measure the right to co ntrol by considering: (1) the independent nature of the wo rker’s business; (2) the worker ’s obligation to furnish necessary–8– tools, supplies, and materials to perform the job; (3) the work er’s right to control the progress of the work except about final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by un it of time or by the job. Id

. Here, Diaz testified he learned about the Project from Marin an d had never contracted with Wright Way. He had only worked on two or three past projects f or Wright Way through Marin. Diaz testified Marin agreed to pay him $30 per square of roofin g, indicating payment was for the job and not per hour. Diaz also received a 1099 from Marin rat her than a W-2 form. See id

. (reporting of income on a 1099 instead of W-2 was one factor in dicating independent contractor status). Diaz provided the ladders, hammers, debris trailer, and his own truck for the Project. Wright Way did not provide any tools or equipment to Diaz for t he Project. To the extent Diaz argues Wright Way exercised control over the Project because Wr ight Way provided the nails, paper, and shingles for the Project, such facts are not evidenc e indicating Wright Way controlled the details of how Diaz performed his job of installing a new r oof. See, e.g., Granger v. Tealstone Contractors, L.P ., No. 05-04-00636-CV, 2005 WL 565098, at *2 (Tex. App.—Dallas Mar. 11, 2005, pet. denied) (mem. op.) (no evidence that defendant actua lly exerted control over the details of the work). Similarly, Wright’s request that Diaz not remove the old paper before installing new shingles was a specification of the job, not control of how Dia z was to perform his work once the old paper was exposed. In fact, when asked if Wright ever told him how to do his job, Diaz said, “Look, he’s never going to tell you, you got to put the shingle s this way.” Diaz explained, “We know how to do the job,” and “The c ontractor doesn’t have the r ight to say I want it like this.” Finally, Wright did not tell Diaz when to stop or start working except on the first day when Ellis requested work not start before 7:30 a.m. as not to distu rb his ailing wife. See, e.g., Hernandez v. Hammond Homes, Ltd ., 345 S.W.3d 150, 154 n.3 (Tex. App.—Dallas 2011, pet.–9– denied) (an employer has authority to tell an independent contr actor to start or stop work, inspect progress, and receive reports w ithout subjecting himself to lia bility as a master). Accordingly, we conclude Wright Way conclusively established Diaz was an indepe ndent contractor. 4 We now consider whether Diaz produced evidence of a genuine is sue of material fact concerning whether Wright Way owed him a duty because Wright Wa y retained “some control” over his work. The elements of a negligence claim are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Gharda USA, Inc. v. Control Solutions, Inc ., 464 S.W.3d 338, 352 (Tex. 2015). The t hreshold inquiry is whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). Whether Wright Way owed Diaz a duty is a question of law. See Nabors Drilling, U.S.A., Inc. v. Escoto , 288 S.W.3d 401, 404 (Tex. 2009). Generally, an employer of an i ndependent contractor does not ow e a duty to ensure that the independent contractor performs his work in a safe manner. Hernandez , 345 S.W.3d at 153. Further, a general contractor owes the same duty as a premises owner to an independent contractor’s employee. Koch Ref. Co. v. Chapa , 11 S.W.3d 153, 155 (Tex. 1999). However, one who retains a right to control th e subcontractor’s work may be held liable for negligence in exercising that right. Hernandez , 345 S.W.3d at 153. Such a limited right arises if a general contractor retains control over a subcontractor’s methods of wo rk or operative det ails to the point that the subcontractor is not en tirely free to do the work in h is own way. Arana v. K. Hovnanian Homes-DFW, L.L.C ., No. 05-17-00367-CV, 2018 WL 3017307, at *2 (Tex. App.—Dallas June 18, 2018, no pet.) (mem. op.) (citing Koch , 11 S.W.3d at 155). The general contractor’s “duty of

4 Having concluded Diaz is an i ndependent contractor, we need no t consider any arguments related to whether Wright Way, as an e mployer, owed a duty to him as an employee to provide necessary instrume ntalities to safely perform work. See, e.g., Kroger Co. v. Elwood , 197 S.W.3d 793, 794–95 (Tex. 2006) (discussing duties of employers to empl oyees in providing safe workplace); see also T EX

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. P. 47.1 (opinion should be as brief as practicable and address issues necessary to disp osition of appeal).–10– reasonable care is commensurate with the control it retains” ov er the subcontractor. Id . The more the general contractor controls t he independent contractor’s wo rk, the greater the general contractor’s responsibility is fo r any injuries that result. Id

. However, general supervisory control that does not relate to th e activity causing the injury is not sufficient to create a duty. Id . Merely exercising or retaini ng a general right to recommend a safe manner for the independent contractor’s employees to per form their work is not enough to impose a duty. Koch , 11 S.W.3d at 155. In addition, there must be a nexus between the condition or activity that caused the injury and a general contractor’s r etained supervisory control. Arana , 2018 WL 3017307, at *2. A party can prove a right to control in two ways: first, by evi dence of a contractual agreement that explicitly assigns the employer a right to contr ol; and second, in the absence of a contractual agreement, by evidence that the employer actually e xercised control over the manner in which the independent contr actor performed his work. Hernandez , 345 S.W.3d at 153. In this case, there was no written contract between Wright Way and Diaz . Therefore, we must determine whether Wright Way actually exe rcised any control over the mann er in which Diaz performed his work relating to the activ ity that caused his injury. Diaz focuses on statements from Wright and Ellis stating Wright was in charge of safety at the job and should have provide d fall-protection equipment. However, evidence of the potential or possibility of control is not evidence that actual control i s exercised or retained. See Coastal Marine Serv. of Tex., Inc. v. Lawrence , 988 S.W.2d 223, 226 (Tex. 1999). Moreover, we have addressed a similar argument in Hernandez . In that case, we concluded an independent contractor who fell off a roof a nd alleged the home builder was negligent in failing to provide fall protection could not survive summary judgment by arguing the supervisor ha d knowledge of the risk of roofers’ falling and the supervisor agreed he could have provid ed protection to prevent the fall.–11– 345 S.W.3d at 154 (“knowledge of th e risk of roofers’ falling a nd appellees’ failure to require fallprotection equipment is not evi dence that Stroud and appellees actually exercised control over the manner in which Brito’s employees performed their work”). Simi larly, Diaz’s contention that Wright was in charge of safety a nd did not provide safety equip ment is not evidence that Wright Way exercised control over the m anner in which Diaz installed t he roof. Diaz next argues Wright’s inspections of the Project was eviden ce of some control. However, a contractor has the authority to inspect progress wit hout subjecting himself to liability. See, e.g., Hernandez , 345 S.W.3d at 154 n.3. Diaz pr esented no evidence that durin g any inspection Wright told him how to do his job such that Wright W ay was exercising control. Finally, Diaz argues he raised a genuine issue of material fact regarding control because Wright Way provided the nails an d shingles and Wright told him what he wanted done, for example, instructing Diaz to put on 30-year shingles, wanting “ all the valleys cut,” and telling Diaz not to remove the old paper before installing new shingles. To create a duty, there must be a nexus between the condition or activity that caused the injury and a general contractor’s retained supervisory control. Arana , 2018 WL 3017307, at *2. Providing materials for the Project is not evidence of such a nexus. Further, Diaz has not provided evide nce explaining how instructions to cut “all the valleys” related to his injury. While instructing Diaz not to replace the old paper before installing new shingles was a detail of the Project, it was not an “operative detail to the point” Diaz was not entirely free to do the work in his own way. See Koch , 11 S.W.3d at 155 (limited duty arises when contractor retains control over methods of work or operative details). Instead, Wright Way’s decision to not replace the paper was a job specification . Further, Diaz presented no evidence that Wright Way controlled how Diaz removed the paper and then replaced the shingles. Rather, Diaz testified it is a “common practice” for roofers to walk on old paper, and he knew he needed to be careful while working on a roof because paper, eve n new paper, can tear. Further,–12– Diaz admitted Wright did not tell him how to do his job, and “h e’s never going to tell you, you got to put the shingles this way.” A ccordingly, we conclude, as a matter of law, Wright Way did not owe Diaz a duty, and Diaz did not raise a genuine issue of mate rial fact to overcome summary judgment on his negligen ce cause of action. We now consider whether the tri al court properly granted Wrigh t Way’s motion for summary judgment on Diaz’s neglig ent activity claim. Duty, bre ach, and proximate cause are elements of a negligent activity claim. See, e.g., Taylor v. Loui s, 349 S.W.3d 729, 738 (Tex. App.—Houston [14th Di st.] 2011, no pet.). D iaz argues he raise d a genuine issue of material fact regarding whether his injuries arose from an activity on the pr emises or as a contemporaneous result of that activity because Wright told him not to remove t he old paper and did not insist he wear proper safety equipment which contributed to his fall. As previously discussed, Wright Way did not owe a legal duty to Diaz. Without evidence of such a d uty, his negligent activity claim fails. See Oncor Elec. Delivery Co. v. Murillo , 449 S.W.3d 583, 592 (Te x. App.—Houston [1st Dist.] 2014, pet. denied). Having affirmed the trial cour t’s summary judgment ruling on t raditional grounds, we need not address or review the no-evidence grounds. See Shih , 306 S.W.3d at 945 n.8. Premises Liability Diaz argues the trial court erre d by granting summary judgment on his premises liability claim because, among other things, he presented evidence creati ng a genuine issue of material fact regarding Wright Way’s duty to w arn. Wright Way responds Diaz failed to present evidence of a duty to warn and the two recognized exceptions do not apply, or alternatively, there is no evidence to support them. In a premises liability case, a l andowner or general contractor is liable to employees of an independent contractor only for claims arising from a concealed , pre-existing defect rather than–13– from the contractor’s work. Gen. Elec. Co. v. Morit z, 257 S.W.3d 211, 215 (Tex. 2008). “With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the owner knows or should have known about.” Id . (quoting Shell Oil Co. v.
Khan , 138 S.W.3d 288, 295 (Tex. 2004)); see also Austin v. Kroger Tex., LP , 465 S.W.3d 193, 203 (Tex. 2015) (landowner has duty to make safe or warn agains t any concealed, unreasonably dangerous condition of which the landowner is or should be awar e, but the invitee is not). However, in most cases, a contractor or landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the in vitee. Austin , 465 S.W.3d at 201. Such is the case because when the condition is open and obvious or known to the invitee, the landowner is not in a better position to discover it. Id . When invitees are aware of dangerous premises conditions—whether because the danger is obvious or be cause the landowner provided an adequate warning—the condition will, in most cases, no longe r pose an unreasonable risk because the law presumes that invitees will take reasonable mea sures to protect themselves against known risks, which may include a decision not to accept the inv itation to enter onto the premises.
Id

. The Texas Supreme Court has provided two exceptions to this gen eral rule: (1) the criminal-activity exception, meaning a dangerous condition resu lts from the foreseeable criminal activity of a third party and (2) the necessary-use exception, meaning the invitee necessarily must use the unreasonably dangerous pre mises and despite the invitee ’s awareness and appreciation of the dangers, the invi tee is incapable of taking precautions tha t will adequately reduce the risk. Id

. at 204. The evidence relied on by Diaz is as follows: (1) Wright Way ne ver went up on the roof before anyone started working to inspect its condition and asce rtain whether it could be safely used without wearing a safety harness and lanyard properly tied onto an anchor point; (2) Wright Way–14– exercised control over how Diaz performed his work; 5 (3) Wright knew the roof was seven feet high and OSHA regulations require safety devices for employees working over six feet high; (4) Wright admitted he never saw anyone using safety harnesses; (5) Wright would not admit working on a roof over seven feet tall without safety protection was a hazardous condition; (6) he was aware if someone fell off the roof they could suffer an injury; (7) h e never inspected the roof after telling Diaz not to replace the old paper to see if there was a potenti al danger and did not tell Diaz to be careful because the old paper might be slippery or tear. First, Texas courts, including this Court, have held that “the common law duties imposed by state law are not expanded by OSHA regulations.” See Arana , 2018 WL 3017307, at *7. Thus, Diaz’s OSHA argument is not evidence creating a fact issue. L ikewise, to the extent Diaz argues Wright (1) did not inspect the r oof first to ascertain if safet y equipment was necessary, (2) would not admit such work was dangerous, and (3) did not see anyone w earing safety equipment, Diaz testified in his deposition “everything was fine” with the Proj ect’s roof. He explained the roof was considered a 4-12 roof, meani ng it was “flat” and “any person c ould walk on it.” Diaz had never used a safety line on that type o f roof and had never seen any other roofers use a safety line on one that flat. As we concluded in Hernandez , the danger of falling off a roof and the lack of fall protection, such as a safety-rope system or scaffolding, was op en and obvious, not a concealed defect. 345 S.W.3d at 156. Wright Way’s only duty was to warn Diaz of concealed defects he might encounter in doing his work. The danger of falling and t he lack of fall protection were not concealed defects, and Wright Way owed no duty to Diaz to warn him. Id

. Diaz further relies on Buchanan v. Rose , 159 S.W.2d 109, 110 (Tex. 1942) for the proposition that “if a party negligently creates a dangerous si tuation, it then becomes his duty to

5 As explained above, we have conc luded Wright Way did not exerc ise control over the project. To the extent he argues Wright e xercised control because he told Diaz not to replace the old paper, such a request is a specification of the job. Further, Diaz testif ied in his deposition the person doing the roofing “know[s] how to do it.” He said, “We know how to do the job.”–15– do something about it to prevent injury to others if it reasona bly appears or should appear to him that others . . . may be injured.” However, Diaz has not prov ided any evidence supporting his argument. Diaz’s argument is premised on the fact that Wright instructed him to not replace the old felt paper, which caused him to slip and fall while replaci ng the shingles. The record does not contain any evidence that walking on old felt paper created a d angerous situation. Rather, Diaz admitted regardless of whether he replaced the paper or install ed new paper over the old paper, he must walk on the old paper as part of the process. It is a “co mmon practice” for roofers to walk on old paper. “You have to do it.” He knew he needed to be ca reful while working on a roof because paper, even new paper, can tear. “You have to be caref ul the whole time.” When asked if he found anything unsafe about the roof he did not ordinaril y encounter, such as the old paper, he answered, “No. Well, to me everything was fine; everything was fine.” Thus, Diaz provided no evidence that Wright negligently created a dangerous situati on by requiring him to shingle over old paper. Rather, the evidence established that the condition is common in roofing and Diaz knew to be careful. As such, the condition was open and obvious and known to the invitee. The condition, therefore, did not pose an unreasonable risk because the law presumes Diaz would have taken reasonable measures to pr otect himself against known risk s, which may have included a decision not to accept the invitation to enter onto the premise s. Austin , 465 S.W.3d at 201. The record does not indicate Diaz ever told Wright he was uncomfort able with not replacing the paper or that he did not want to continue the Project under such circ umstances. Finally, Diaz has provided no evidence that an exception to the general rule applies. To the extent he argues the nece ssary-use exception applies, he ha s provided no evidence that he had to use an unreasonably dangerous premises and despite his aware ness and appreciation of the dangers, he was incapable of taking precautions that would adeq uately reduce the risk. Again, the–16– evidence shows he knew he needed to be careful walking on old p aper and safety harnesses were not used on “flat” roofs. Accordingly, we conclude Diaz failed to produce evidence creati ng a genuine issue of material fact that Wright Way owed him a duty. As such, the tr ial court did not err in granting Wright Way’s motion for summary judgment on his premise liabili ty claim. See, e.g., Hernandez , 345 S.W.3d at 156–57.
Conclusion The judgment of the trial court is affirmed.

170172F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–17– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
J. MANUEL DIAZ, Appellant
No. 05-17-00172-CV V. D.R. WRIGHT ENTERPRISES, INC. AND WRIGHT WAY CONSTRUCTION ENTERPRISES, INC., Appellees On Appeal from the 191st Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-15-01413-J. Opinion delivered by Justice Bridges. Justices Evans and White hill participating.

In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that appellee D.R. WRIGHT ENTERPRISES, INC. AND WRIGHT WAY CONSTRUCTION ENTERPRISES, I NC. recover their costs of this appeal from appellant J. MANUEL DIAZ.
Judgment entered July 19, 2018.