NUMBER 13-10-00238-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

D. CHRISTOPHER PETERSON, INDIVIDUALLY AND

AS ADMINISTRATOR OF THE ESTATE OF 

MATTHEW C. PETERSON, DECEASED AND 

JUDITH PETERSON, Appellants,

v.

RES AMERICA CONSTRUCTION, INC.,

RENEWABLE ENERGY SYSTEMS 

AMERICAS, INC. (“RES-A”) 

AND RES (CONSTRUCTION), L.P. (“RES-C”)., Appellees.

On appeal from the 148th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Garza, Vela and Perkes

Memorandum Opinion by Justice Garza 

Appellants, Christopher D. Peterson, individually and as administrator of the 
2

estate of Matthew C. Peterson, deceased, and Judith Peterson, challenge the trial 

court‘s summary judgment dismissing their wrongful death suit against appellees, RES 

America Construction, Inc. (―RES-AC‖), Renewable Energy Systems Americas, Inc. 

(―RES-A‖) and RES (Construction), L.P. (―RES-C‖).1 By two issues, appellants contend 

that they raised fact questions as to their premises liability and negligence claims. We 

affirm.

I. BACKGROUND

Matthew Peterson, an employee of DNV Global Energy Concepts, Inc. (―DNV‖), 

was working in 2008 at a wind farm being constructed on a portion of the Kenedy Ranch 

in Sarita, Texas. RES served as the general contractor overseeing construction at the 

wind farm, and DNV had contracted with RES to build meteorological towers (―met 

towers‖) at the site. On or about November 9, 2008, Peterson and a co-worker entered 

the ranch in order to install a guyed boom on sections of one of the towers. Peterson 

climbed the tower to a height of approximately eight feet in order to install an 

anemometer2on the guyed boom. However, the tower was not properly located, nor 

was it properly anchored to the ground or stabilized. As a result, the tower fell and 

pinned Peterson to the ground, causing him to suffer severe injuries, and ultimately 

causing his death.

Appellants, Peterson‘s parents, filed a wrongful death suit against RES and 

several other defendants.3 The Petersons claimed that RES was a ―possessor‖ of the 

 

1

All three appellees will be referred to collectively as ―RES.‖

2

An anemometer is an instrument used to measure the force or speed of wind. MERRIAM 

WEBSTER‘S COLLEGIATE DICTIONARY 44 (10th ed. 1996).

3

The other named defendants are: Ionos Communications; SNET, L.L.C. d/b/a Southern 

Networks and Southern Networks, L.L.C.; Richard Elizondo d/b/a Ionos Communications; AJM Group, 
3

wind farm site at the time of their son‘s accident, and therefore, RES ―exercised control‖ 

over the premises and was liable under a premises liability theory. They further 

asserted a traditional negligence claim, as well as a claim of negligent undertaking. 

Under the latter theory, the Petersons alleged that RES ―voluntarily or gratuitously . . . 

undertook (1) the job of building the road that led to the subject met tower staging area 

and (2) site safety.‖ The Petersons claimed that RES knew or should have known that 

these services were ―necessary‖ for their son‘s protection, that Matthew relied upon 

RES‘s performance of these services, and that RES failed to exercise reasonable care 

in performing those services. More specifically, the Petersons alleged that ―[t]he road 

was built with defects, which defects directly led to the unsafe placement of the subject 

tower section in the soft, sandy wetlands area.‖

RES subsequently answered the suit and filed two ―hybrid‖ motions for traditional 

and no-evidence summary judgment.4 In the first motion, RES-AC and RES-A 

contended that: (1) RES was not the possessor of the premises; (2) RES ―played no 

role in causing and/or contributing‖ to the creation of a condition on the premises posing 

an unreasonable risk of harm to Peterson; (3) RES had no actual or constructive 

knowledge of any such condition; and (4) RES owed no legal duty to Peterson and 

breached no such duty. In support of their motion, RES-AC and RES-A pointed to a 

contract dated February 15, 2008, between RES-C and Gulf Wind LLC (―Gulf Wind‖). 

According to the summary judgment motion, because the contract demonstrated no 

legal relationship between RES-AC or RES-A with Gulf Wind, the owner of the site at 

 

LLC; Arnold Quintanilla d/b/a AJM Group, LLC; and Gravitec Systems, Inc. None of these entities are 

parties to this appeal.

4 One of the hybrid summary judgment motions was filed by appellees RES-AC and RES-A; the 

other was filed by appellee RES-C.
4

issue, those two RES entities were entitled to summary judgment. In the second hybrid 

summary judgment motion, RES-C claimed that there was no evidence for the 

Petersons‘ claims and argued further that the construction of met towers was explicitly 

excluded from the contract‘s definitions of the ―Project‖ at issue and RES‘s ―Scope of 

Work‖ with respect to the project.5 Therefore, according to RES, it owed no duty to 

Peterson and was entitled to traditional summary judgment.6

The Petersons filed a response to the first summary judgment motion arguing 

that RES was a ―possessor‖ of the site, that RES controlled the details of the work of 

 

5

The contract defined the ―Project‖ as:

the integrated wind-powered electric generating facility . . . to be located on the Project 

Site, consisting of all foundations, structures, facilities, appliances, lines, [t]ransformers, 

WTGs [wind turbine generators], conductors, instruments, equipment, apparatus, 

components, roads and other property comprising and integrating the entire facility 

described generally in the Scope of Work and the Technical Specifications.

The ―Scope of Work‖ was defined as

the services and work to be provided, or caused to be provided, by or through [RES-C] 

under this Agreement for the Contract Price, as more specifically described in Exhibit A 

and the Technical Specifications, as the same may be amended from time to time in 

accordance with the terms hereof.

Part A of Exhibit A to the agreement listed specific tasks that are included in the scope of work. Part B of 

Exhibit A states that, ―[n]otwithstanding any conflicting statement in Part A of Exhibit A or elsewhere in the 

Agreement, the following items are not included in [RES-C]‘s Scope of Work,‖ and includes the following:

18. CONTRACTOR EXCLUSIONS – MET MASTS/POWER CURVE TESTING

18.1 General

(i) Procurement and installation of met masts and instrumentation needed 

for the temporary and permanent metrological [sic] towers.

(ii) Temporary power to met masts

(iii) Site calibration

(iv) Power curve testing

(v) Met tower FAA lights

6

This argument, regarding the definition of RES‘s ―Scope of Work,‖ was also advanced by RESAC and RES-A in the first summary judgment motion.
5

subcontractors, that it failed to warn of a dangerous condition, and that it undertook to 

perform work at the site. The Petersons attached several deposition transcripts to their 

response7in support of their contention that fact issues existed on their causes of action 

against RES. One of those depositions was by Robert Elizondo, a forklift operator 

employed by Ionos Communications (―Ionos‖), which was DNV‘s subcontractor in 

charge of, among other things, determining where to place the met towers. Elizondo 

stated he participated in the staging of the tower section which eventually collapsed and 

caused Peterson‘s death. Elizondo agreed that, when the tower section was lowered 

into place, he noticed that it ―s[a]nk, to some extent, in the soft sand‖ underneath. 

Elizondo stated that the path leading to the erection site was initially ―sand, soft sand, 

and we couldn‘t drive equipment or trucks out to the site because the sand was so soft.‖ 

Elizondo contacted a colleague at Ionos, ―and he contacted RES, and they sent 

operators and equipment out there and installed a small caliche road.‖ However, ―[t]he 

road was small, narrow, and we deemed [it] insufficient for supporting the weight of the 

crane that was to be coming in.‖ According to Elizondo, the condition of the road was 

the reason that the tower section was eventually placed in soft sand:

Q. [Petersons‘ counsel] Okay. So as you‘re going down the road with 

this tower section and you‘re going to stage it, 

how do you decide that you want to put it in 

that particular location?

A. [Elizondo] It was just—at that point, we already knew the 

viability of the road was bad. We were going to 

have problems. So we just set it on the lefthand side, out of the way.

John Bruce, an RES representative, testified that a request was made to him to 

 

7 Many of these deposition transcripts, as they appear in the record before this Court, are missing 

critical pages. Moreover, several of the transcripts appear to have pages cobbled together haphazardly 

from different depositions. We will consider the deposition transcripts in our analysis only insofar as we 

can make sense of them.
6

―form an access road to the met mast.‖ After the request was made, Bruce instructed 

another RES employee, Tony LePape, to hire Ballenger Construction Co. (―Ballenger‖) 

to construct the road. Andrew Fowler, RES‘s senior vice president for construction, 

acknowledged that RES supervised the road construction and that this construction was 

critical to other work being done on the site:

Q. [Petersons‘ counsel] Did RES supervise the construction of the 

roads?

A. [Fowler] Yes.

. . . .

Q. Would it be correct to say that a lot of the work 

done out there is dependent upon the 

roadwork that takes place?

A. Yes.

Q. You got—roads are part of the infrastructure 

and you got to get your infrastructure in place 

before you can start putting up your turbines?

A. Yes.

Fowler also stated that ―wetland areas were demarcated throughout the site and we 

instructed our subcontractors not to go in the wetlands.‖

Peterson further argued in his response that RES exercised ―substantial control 

over the premises and the work details of the many companies at the site.‖ In support 

of this contention, Peterson pointed to a ―Site Passport‖ issued by RES which provided 

dozens of rules and regulations required to be obeyed by workers on the site. Those 

rules included the following:

3) All climbing and lifting equipment must be inspected every day 

before use and defective equipment replaced immediately.

. . . .
7

7) All traffic must stay on designated roads and rights-of-way. Do not 

turn around or back into grass areas unless clearly marked by 

clearing stakes. DO NOT drive outside clearing limits, and stay 

away from sensitive areas such as wetlands and sand dunes.

. . . .

21) All personnel must attend site safety ―tailgate talks‖ with their 

employers at least once a week; these meetings must be 

documented on a record sheet.

. . . .

28) RES operates a ―Three Strikes‖ rule for safety violations: Verbal, 

Written, and Dismissal. Major violations, such as violence (or 

threat thereof) towards others, drug or alcohol abuse and/or willful 

negligence will result in violators being immediately removed from 

site without warning. RES management will determine what 

constitutes a major violation.

. . . .

33) All work crews must carry the emergency contact information and a 

cell phone or 2-way radio for safety. Nobody shall ever be unable 

to reach others for help.

. . . .

36) All near misses and accidents must be reported to the RES office 

immediately and preventative measures taken to stop the incident 

from reoccurring. This includes damage to ranch property, or 

accidents with livestock or wild game.

The Petersons note that minutes from a ―Site Safety and Environment Meeting‖ 

held at the Gulf Wind project site on October 22, 2008, indicated that all workers on site 

were instructed to ―[s]tay off all wetlands unless authorized by RES‖ and that all 

subcontractors needed to ―identify staging areas at each work site.‖ Additionally, RES

operated an ―Illness and Injury Prevention Program‖ which was explained in a document 

attached as an exhibit to the main contract with Gulf Wind. According to that document, 

RES site safety inspectors are required to ―[b]ring to the attention of subcontractors any 
8

activities that present a hazard to their own personnel, other personnel, operatives or 

the general public.‖ The Petersons contend that, in the instant case, RES‘s site safety 

inspector did not comply with this policy.

Finally, the Petersons attached to their response a work permit issued by RES to 

Ionos, entitled ―Permit to Excavate,‖ dated January 30, 2009, and signed by Gary 

Kriegel, an RES representative. The permit stated: ―I have checked that all precautions 

have been taken to ensure the safety of the excavation work detailed above. I consider 

it safe to carry out the work between the times and dates specified.‖

The trial court granted RES‘s summary judgment motions without stating the 

grounds upon which they were granted. Peterson‘s causes of action against RES were 

severed from his causes of action against the other defendants, and he filed this appeal.

II. DISCUSSION

A. Standard of Review

A motion for summary judgment may be brought on no-evidence or traditional 

grounds. See TEX. R. CIV. P. 166a(c), (i). A motion for no-evidence summary judgment 

is equivalent to a motion for pretrial directed verdict, and we apply the same legal 

sufficiency standard on review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 

2006); Ortega v. City Nat’l Bank, 97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003, 

no pet.) (op. on reh‘g); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San 

Antonio 1998, writ denied). Such a motion should be granted if there is no evidence of 

at least one essential element of the plaintiff‘s claim. Hamilton v. Wilson, 249 S.W.3d 

425, 426 (Tex. 2008) (per curiam). The burden of producing evidence is entirely on the 

non-movant; the movant has no burden to attach any evidence to the motion, and if the 

non-movant produces evidence raising a genuine issue of material fact, summary 
9

judgment is improper. TEX. R. CIV. P. 166a(i). All that is required of the non-movant is 

to produce a scintilla of probative evidence to raise a genuine issue of material fact on 

the challenged element. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 

172 (Tex. 2003); Ortega, 97 S.W.3d at 772. ―Less than a scintilla of evidence exists 

when the evidence is  ̳so weak as to do no more than create a mere surmise or 

suspicion of a fact.‘‖ Ortega, 97 S.W.3d at 772 (quoting Kindred v. Con/Chem, Inc., 650 

S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124 S.W.3d at 172. Conversely, more than a 

scintilla of evidence exists when reasonable and fair-minded individuals could differ in 

their conclusions. Forbes, 124 S.W.3d at 172; Ortega, 97 S.W.3d at 772 (citing Transp. 

Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In determining whether the nonmovant has produced more than a scintilla of evidence, we review the evidence in the 

light most favorable to the non-movant, crediting such evidence if reasonable jurors 

could and disregarding contrary evidence unless reasonable jurors could not. Tamez, 

206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 825, 827 (Tex. 2005).

We review the trial court‘s granting of a traditional motion for summary judgment 

de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 

2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no 

pet.). When reviewing a traditional summary judgment, we must determine whether the 

movant met its burden to establish that no genuine issue of material fact exists and that 

the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Sw. Elec. 

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek 

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant bears the burden of proof

and all doubts about the existence of a genuine issue of material fact are resolved 

against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all 
10

evidence favorable to the non-movant, and we indulge every reasonable inference and 

resolve any doubts in the non-movant‘s favor. Valence Operating Co. v. Dorsett, 164 

S.W.3d 656, 661 (Tex. 2005).

When, as here, an order granting summary judgment does not state the specific 

grounds on which summary judgment was granted, we will uphold it on any meritorious 

ground presented in the motion. Cincinnati Life Ins. Co. v. Cates, 947 S.W.2d 608, 610 

(Tex. 1997). Moreover, when a party moves for summary judgment under both rules 

166a(c) and 166a(i) of the Texas Rules of Civil Procedure, we first review the trial 

court‘s judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 

S.W.3d 598, 600 (Tex. 2004). If the appellant fails to produce more than a scintilla of 

evidence under that burden, then there is no need to analyze whether appellee‘s 

summary judgment proof satisfies the rule 166a(c) burden. Id.

B. Premises Liability

By their first issue, the Petersons argue that they presented evidence creating a 

genuine issue of material fact as to their premises liability claim. It is undisputed that 

Peterson, as an employee of an independent contractor, was an invitee on the Gulf 

Wind project site. Therefore, to survive summary judgment on their premises liability 

claim, the Petersons were required to establish that: (1) RES was a possessor of the 

property; (2) RES knew8or should have known of a dangerous condition on the 

premises; (3) the condition presented an unreasonable risk of harm; and (4) the 

condition proximately caused Peterson‘s injuries. See Brinson Ford, Inc. v. Alger, 228 

S.W.3d 161, 162 (Tex. 2007) (citing Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 

 

8

There was no evidence presented that RES had actual knowledge of the defect at issue prior to 

Peterson‘s accident.
11

752, 754 (Tex. 1970)); see also Shell Oil Co. v. Khan, 138 S.W.3d 288, 291-92 (Tex. 

2004) (noting that 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). When a general contractor knows or should have known of a dangerous 

condition on the premises, it is required to ―take whatever action is reasonably prudent 

under the circumstances to reduce or to eliminate the unreasonable risk from that 

condition.‖ TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764-765 (Tex. 2009) (citing 

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983)).

A general contractor is considered a ―possessor‖ of the property at issue if it 

retains the right of supervisory control over work on the premises. See Coastal Marine 

Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225-26 (Tex. 1999) (citing Clayton W. 

Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997)); Thornhill v. Ronnie’s I-45 

Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.—Beaumont 1997, writ denied). ―In 

determining whether an owner has retained this right to control, the standard is narrow. 

The right to control must be more than a general right to order work to stop and start, or 

to inspect progress.‖ Coastal Marine Serv., 988 S.W.2d at 226. The supervisory 

control must relate to the activity that actually caused the injury, and grant the general 

contractor at least the power to direct the order in which work is to be done or the power 

to forbid it being done in an unsafe manner. See id. (citing Olivo, 952 S.W.2d at 528; 

Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); Redinger, 689 S.W.2d at 418). 

―There must be such a retention of a right of supervision that the contractor is not 

entirely free to do the work in his own way.‖ Koch Ref. Co., 11 S.W.3d at 155 (citing 

RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)).
12

A party can prove the right to control in two ways: first, by evidence of a 

contractual agreement which explicitly assigns the general contractor a right to control; 

and second, by evidence that the general contractor actually exercised control over the 

job. See id. (citing Olivo, 952 S.W.2d at 528). Generally, the former is a question of law 

for the court and the latter is a question of fact for the jury. Shell Oil Co., 138 S.W.3d at 

292. The Petersons argue both theories.

First, the Petersons argue that the contract executed by RES and Gulf Wind 

―clearly establish[es] that RES had a right to control the property.‖ They also point to 

the ―Site Passport‖ issued by RES which requires, among other things, that ―[a]ll 

climbing and lifting equipment must be inspected every day before use and defective 

equipment replaced immediately.‖ However, a contract requiring independent 

contractors to comply with general safety practices and train their employees to do so 

does not constitute a right to control job-site safety. Id. at 293-94 (citing Dow Chem. 

Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002) (finding no right to control raised by 

allegation that subcontractor‘s employees were required to be ―indoctrinated‖ with 

general contractor‘s safety rules); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 

357-58 (Tex. 1998) (finding no right to control in contractual provision requiring 

contractor to train its employees in general contractor's safety-related rules and 

regulations)). Instead, requiring subcontractors‘ employees to learn and follow general 

safety procedures subjects an owner only to a ―narrow duty to avoid increasing the risk 

of injury.‖ Id. (citing Koch Ref. Co., 11 S.W.3d at 156; Hoechst-Celanese Corp., 967 

S.W.2d at 357-58). Here, the Petersons did not allege or present evidence that the 

RES‘s promulgation of safety rules and regulations in the main contract or site passport 

increased any risk of injury to Peterson. See id. Moreover, as noted by RES, the main 
13

contract specifically excluded the work Peterson was doing at the time he was injured—

installation of instrumentation on met masts—from the description of RES‘s scope of 

work. We conclude that there is no evidence that RES retained a contractual right of 

control over DNV or Peterson with respect to the activity Peterson was engaged in at 

the time of his injuries.

The Petersons further argue that, regardless of the contracts, the conduct of RES 

―shows that they exercised actual control of the premises.‖ They point specifically to: 

the ―Site Passports‖; RES‘s ―Illness and Injury Prevention Program‖; Elizondo‘s 

deposition testimony in which he stated that RES was ―the boss,‖ it was ―their site,‖ and 

he followed ―their rules‖; Fowler‘s testimony that RES ―supervised‖ the construction of 

the roads leading to the met tower staging site and that all subcontractors were 

instructed ―not to go in the wetlands‖; the work permit issued to Ionos dated January 30, 

2009; and the minutes from the safety meeting held on October 22, 2008. We find that 

none of these constitute evidence that RES ―actually exercised control over the job.‖ 

See Coastal Marine Serv., 988 S.W.2d at 226. The site passports do not list any rules 

arguably applicable to the proper staging of met towers. The ―Illness and Injury 

Prevention Program‖ applied only to RES employees, and so could not establish a right 

of control over independent contractor employees such as Peterson. While Elizondo 

did state that RES was ―the boss,‖ he agreed that ―RES didn‘t at all get involved in the 

actual work that you were doing out there in terms of the erection of the [met] towers.‖ 

The 2009 work permit was not evidence that RES retained a right to control DNV‘s or 

Peterson‘s work as of November 9, 2008, when the injury occurred. The safety meeting 

minutes noted that all subcontractors were required to ―identify staging areas‖ but do not 

establish that RES actually retained the right to control where the staging areas were 
14

located. Finally, although RES may have ―supervised‖ road construction, and that road 

construction may have led to the improperly-staged met tower, that is not enough under 

the applicable law to establish that RES was a ―possessor‖ of the property such that it 

would be liable under a premises defect theory. See Koch Ref. Co., 11 S.W.3d at 155

(noting that the right of control must be such ―that the contractor is not entirely free to do 

the work in his own way‖); Coastal Marine Serv., 988 S.W.2d at 226 (noting that the 

right of control ―must relate to the activity that actually caused the injury‖).

We conclude that the trial court did not err in granting RES‘s no-evidence 

summary judgment motion with respect to the Petersons‘ premises liability claim. See

TEX. R. CIV. P. 166a(i). Issue one is overruled.

C. Negligence and Negligent Undertaking

By their second issue, the Petersons contend that they produced more than a 

scintilla of evidence establishing RES‘s liability under traditional negligence and 

negligent undertaking theories. Again, we disagree.

A general contractor generally owes no duty to ensure that its independent 

contractors perform their work in a safe manner. Gen. Elec. Co. v. Moritz, 257 S.W.3d 

211, 214 (Tex. 2008). However, as with a premises liability claim, one who retains a 

right to control the contractor‘s work may be held liable for negligence in exercising that 

right. Id. Here, we have already determined that the Petersons have not met their 

burden to produce evidence raising a genuine issue of material fact as to whether RES 

retained a right to control DNV‘s or Peterson‘s work. Accordingly, no-evidence 

summary judgment in favor of the RES entities on the Petersons‘ traditional negligence 

claim was proper. See TEX. R. CIV. P. 166a(i).
15

We further conclude that the Petersons have not met their burden with respect to 

their claim of negligent undertaking. Under that theory,

[o]ne who undertakes, gratuitously or for consideration, to render services 

to another which he should recognize as necessary for the protection of 

the other‘s person or things, is subject to liability to the other for physical 

harm resulting from his failure to exercise reasonable care to perform his 

undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other‘s reliance upon the 

undertaking.

Torrington Co. v. Stutzman, 46 S.W.3d 829, 839 (Tex. 2000) (citing RESTATEMENT 

(SECOND) OF TORTS § 323 (1965)). The Petersons alleged specifically that RES 

undertook the job of building the road that led to the met tower staging area, that they 

did the job negligently, and that this led to Peterson‘s injuries. Without considering 

whether evidence was produced that RES was negligent in constructing the road or 

whether Peterson relied on RES‘s performance in that regard, we find that the faulty 

nature of the road was not a proximate cause of Peterson‘s death. The Petersons 

essentially assert that the condition of the road was so poor, and its dimensions so 

narrow, that it was insufficient to support the weight of the crane that was to be used for 

constructing the met towers, and the met towers therefore had to be staged in a soft, 

grassy area, which led to Peterson‘s fall. However, it was Ionos that actually decided to 

place the met tower sections on the unstable patch of land. Moreover, there is no 

evidence that Ionos was incapable of contacting RES to inform it that no safe staging 

area was available for the met tower sections, or to request that it reconstruct or 

reconfigure the road to make it suitable for those purposes.
16

Under these circumstances, we agree with RES that, at most, RES‘s conduct in 

building the road merely furnished the condition that made Peterson‘s injury possible, 

which is insufficient to establish legal cause. See Roberts v. Healey, 991 S.W.2d 873, 

878 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (―Cause in fact does not exist if 

the defendant‘s negligence does no more than furnish a condition which made the injury 

possible.‖) (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)); see 

also Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211, 224 (Tex. 2010) (―[F]or an act or 

event to rise to the level of cause in the legal sense, the act or event must be such that 

reasonable jurors would identify it as being actually responsible for the ultimate harm. 

The cause must be more than one of the countless ubiquitous and insignificant causes 

that in some remote sense may have contributed to a given effect as, for example, 

simply getting up in the morning.‖).

We conclude that the trial court did not err in granting no-evidence summary 

judgment to all three RES entities on the Petersons‘ negligent undertaking claim.9 See

TEX. R. CIV. P. 166a(i). The Petersons‘ second issue is overruled.

III. CONCLUSION

Having overruled the Petersons‘ two issues, we affirm the judgment of the trial 

court.

DORI CONTRERAS GARZA

Justice

Delivered and filed the 

30th day of June, 2011.

 

9 We need not address the Petersons‘ contention that ―each of the various RES entities as the 

RES companies are vicariously liable for the conduct of the limited partner, in this case, [RES-C], through 

the theory of joint enterprise,‖ because, even if RES-A and RES-AC were vicariously liable, we have 

already determined that no-evidence summary judgment in favor RES-C was proper with respect to all of 

the Petersons‘ claims.