Opinion filed August 31, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00208-CV

__________

SAMUEL ADAMS FLORES, Appellant

V.

OIL-TECH CONSTRUCTION, LLC, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-17-05-0558-CV

M E M O R A N D U M O P I N I O N

Samuel Adams Flores filed suit against his former employer, Oil-Tech 

Construction, LLC, for personal injuries he suffered at work. In his petition, Flores 

asserted that Oil-Tech was liable to him under theories of general negligence, 

negligence per se, gross negligence, and malice for injuries he suffered while on the 

job. Oil-Tech filed a combined traditional and no-evidence motion for summary 

judgment. The trial court granted Oil-Tech’s motion for summary judgment. In one 
2

issue, Flores appeals the trial court’s ruling. We affirm in part, and we reverse and 

remand in part. 

Background Facts

In September 2015, Flores was an employee of Oil-Tech. At the time, Flores 

had been an employee of Oil-Tech for over two years. Every morning, before 

driving a company vehicle out to his work site for the day, Flores would inspect that 

vehicle. If the inspection revealed that the vehicle required maintenance, Oil-Tech 

employees were required to make a verbal request for maintenance. During his 

tenure with Oil-Tech, Flores would primarily drive a three-quarter-ton or one-ton 

flatbed pickup. Typically, Oil-Tech employees were assigned the same vehicle

every day. However, during the course of his employment with Oil-Tech, Flores 

operated four different vehicles—each of which were of similar size. The final 

vehicle that Flores operated during his tenure with Oil-Tech was a Dodge 3500.

On September 27, 2015, the day of his injury, Flores inspected the Dodge 

3500 and reported no issues with the vehicle. Flores drove the pickup to the jobsite 

without any issue. Once at the jobsite, Flores unloaded all the necessary tools 

without incident. However, as Flores was stepping down from the bed of the pickup 

after reloading the tools for the day, he injured his knee. 

In his deposition testimony, Flores testified that he asked Ahron Venegas and 

Lupe Cortez to add a step near the cab or the bed of the pickup. However, in 

Venegas’s deposition, he recalled Flores only asking for a bolted-on step to the cab 

of the pickup and not the bed of the pickup. Flores further testified he had a large 

ladder as part of his equipment to perform his job. However, in a request for 

admission, Oil-Tech stated that it did not give Flores a ladder. From his knee injury, 

Flores suffered a broken kneecap, torn tendons, and torn ligaments. 
3

Analysis

In a single issue, Flores contends that it was error for the trial court to grant 

Oil-Tech’s motion for summary judgment. Because Oil-Tech is a nonsubscriber to 

workers’ compensation, Flores must establish negligence by Oil-Tech in order to 

recover. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995) (citing Sears, 

Roebuck & Co. v. Robinson, 280 S.W.2d 238, 239 (Tex. 1955)). Oil-Tech sought a 

traditional summary judgment on the basis that it did not owe a duty to Flores for 

the claims that he asserted. Oil-Tech also asserted that Flores had no evidence that 

it owed a legal to duty to Flores or that it breached a legal duty to Flores. 

The facts in this case are simple—Flores asserts that he suffered injuries to his 

knee while getting down from the flatbed of his work pickup. He asserted the 

following claims against Oil-Tech: The pickup was too high,

1 and Oil-Tech was 

negligent by failing to provide the proper instrumentalities and a safe work vehicle; 

Oil-Tech failed to exercise ordinary care to protect Flores; Oil-Tech was negligent 

in its supervision of Flores; and Oil-Tech was negligent in failing to warn Flores of 

the dangers of getting down from the flatbed. As set forth below, our analysis of 

these claims is not simple. See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 201 

(Tex. 2015) (Austin I) (“[D]ecisions regarding common law duties involve ‘complex 

considerations of public policy including social, economic, and political questions 

and their application to the facts at hand.’” (quoting Nabors Drilling, U.S.A., Inc. v. 

Escoto, 288 S.W.3d 401, 410 (Tex. 2009))). 

We review the trial court’s grant of summary judgment de novo. Lujan v. 

Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins. 

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When the trial court’s order does 

1

At the hearing on the motion for summary judgment, Oil-Tech’s attorney indicated that the 

distance between the ground and the top of the flatbed of Flores’s work pickup was thirty-eight and onehalf inches. 
4

not specify the grounds for its summary judgment, we will affirm the summary 

judgment if any of the theories are meritorious. Knott, 128 S.W.3d at 216. Usually, 

when a party moves for both a traditional and no-evidence summary judgment, we 

first review the no-evidence summary judgment. See Lightning Oil Co. v. Anadarko 

E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). “However, this rule is not 

absolute.” Neurodiagnostic Tex, L.L.C. v. Pierce, 506 S.W.3d 153, 163 (Tex. 

App.—Tyler 2016, no pet.). 

After an adequate time for discovery, a party may move for summary 

judgment on the ground that there is no evidence of one or more essential elements 

of a claim or defense on which an adverse party would have the burden of proof at 

trial. TEX. R. CIV. P. 166a(i). We review a no-evidence motion for summary 

judgment under the same legal sufficiency standard as a directed verdict. 

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Under this 

standard, the nonmovant has the burden to produce more than a scintilla of evidence 

to support each challenged element of its claims. Id. Evidence is no more than a 

scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” 

of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting 

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). 

A party moving for traditional summary judgment bears the burden of proving 

that there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 

S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a 

defendant must conclusively negate at least one essential element of the cause of 

action being asserted or conclusively establish each element of an affirmative 

defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). 

“Evidence is conclusive only if reasonable people could not differ in their 
5

conclusions.” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the 

movant initially establishes a right to summary judgment on the issues expressly 

presented in the motion, then the burden shifts to the nonmovant to present to the 

trial court any issues or evidence that would preclude summary judgment. See City 

of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). In 

reviewing both traditional and no-evidence summary judgments, we consider the 

evidence in the light most favorable to the nonmovant, indulging every reasonable 

inference in favor of the nonmovant and resolving any doubts against the movant. 

Merriman, 407 S.W.3d at 248; City of Keller, 168 S.W.3d at 824. 

Duty to Warn

We first address Flores’s contention that Oil-Tech had a duty to warn him of 

the dangers associated with getting down from the bed of his work pickup.

Generally, “[t]he elements of a common-law negligence claim are (1) a legal duty; 

(2) a breach of that duty; and (3) damages proximately resulting from the breach.” 

Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022) (citing Praesel v. 

Johnson, 967 S.W.2d 391, 394 (Tex. 1998)). The first question in a negligence case 

that must be answered is whether a duty exists. Id. (citing Greater Hous. Transp. 

Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). 

As noted by the Texas Supreme Court, “an employer is not an insurer of its 

employees’ safety.” Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (citing 

Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Exxon Corp. v. Tidwell, 867 

S.W.2d 19, 21 (Tex. 1993)). “It owes no duty to warn of hazards that are commonly 

known or already appreciated by the employee.” Id. at 794–95 (citing Nat’l 

Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston 

[14th Dist.] 1999, no pet.)). “And, when an employee’s injury results from 

performing the same character of work that employees in that position have always 
6

done, an employer is not liable if there is no evidence that the work is unusually 

precarious.” Id. at 795 (citing Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995)).

The plaintiff in Elwood was a grocery store courtesy clerk. Id. at 794. He 

was injured when a customer shut her vehicle door on his hand while he was 

transferring groceries from a grocery cart into the car. Id. The Texas Supreme Court 

held that the employer “had no duty to warn [the plaintiff] of a danger known to all.” 

Id. at 795. 

The court revisited Elwood in Jack in the Box, Inc. v. Skiles. 221 S.W.3d 566 

(Tex. 2007). The plaintiff in Skiles was a delivery truck driver. Id. at 567. While 

making a delivery, the automatic lift gate on his delivery truck malfunctioned. Id. 

The plaintiff obtained a ladder and used it to climb over the liftgate and jump into 

the back of his delivery trailer. Id. Upon landing, he suffered a knee injury. Id. The 

court held that the employer had no duty to warn the plaintiff of an obviously 

dangerous condition. Id. at 567. In reaching its holding, the supreme court relied 

on the fact that moving food products was a regular aspect of the plaintiff’s job and 

that he voluntarily decided to use the ladder to unload the food products. Id. at 569. 

The court further noted that “[t]he dangers associated with the use of a ladder to 

climb over a lift gate are common and obvious to anyone.” Id. 

Brookshire Grocery Co. v. Goss involved a grocery store employee injured 

while attempting to maneuver around a loaded “lowboy” loading cart. 262 S.W.3d 

793, 794 (Tex. 2008). The plaintiff alleged that the employer failed to warn her of 

the risks of maneuvering around loading carts. Id. Citing Elwood and Skiles, the 

Texas Supreme Court held that the employer owed no duty to warn because the risk 

of maneuvering around a loading cart was commonly known and appreciated. Id. at 

794–95. The court noted that the danger posed by the loading cart was apparent to 

anyone and that the plaintiff had encountered it in the past. Id. at 795.
7

As the movant for a traditional summary judgment, Oil-Tech bore the burden 

of producing evidence that conclusively negated one of the essential elements of 

Flores’s claims. Nassar, 508 S.W.3d at 257. In order to negate that it had a duty to 

warn Flores, Oil-Tech had to produce evidence that conclusively established that the 

risk of getting down from the flatbed of the work pickup was commonly known or 

already appreciated by Flores. See Elwood, 197 S.W.3d at 794–95. Oil-Tech 

included as summary judgment evidence excerpts from Flores’s deposition 

testimony. In his deposition, Flores testified as follows: that he was both personally 

and professionally familiar with operating vehicles that were similar to the one on 

which his injury occurred; that he drove a similarly sized pickup every day while at 

work; that he would help unload supplies from the bed of his work pickup every day 

at work; and that he had driven the same work pickup for at least forty-five days 

before his injury. This summary judgment evidence conclusively establishes that 

Flores was aware of the risks posed to him by getting down from the flatbed of his 

work pickup. 

Like the plaintiffs in Elwood, Skiles, and Goss, Flores’s injury occurred while 

he was performing a task that was a regular aspect of his job. In his deposition 

testimony, Flores testified that he loaded and unloaded tools from the bed of the 

pickup multiple times a day. Flores further testified that he had driven the same 

work pickup for over a month before his injury occurred. The summary judgment 

evidence established that the condition of the bed of the work pickup was an open 

and obvious condition and that Flores was aware of its condition. Accordingly, OilTech had no duty to warn Flores of any dangers posed by getting down from the bed 

of his work pickup. The trial court did not err by granting Oil-Tech’s motion for 

traditional summary judgment that it had no duty to warn Flores.

 
8

Necessary-Use Exception

Flores also contends that Oil-Tech had a duty to warn under the necessary-use 

exception. The Texas Supreme Court addressed the necessary-use exception in 

Austin I when it addressed an employer’s duty to an injured employee who asserts a 

premises liability claim. 465 S.W.3d at 203–04, 206. An employer has no duty to

warn or take safety measures beyond those that an ordinary, reasonable landowner 

would take. Id. at 204. Thus, an employer has a duty to make safe or warn against 

any concealed, unreasonably dangerous conditions of which it is aware, or 

reasonably should be aware, but the employee is not. Id. at 203 (citing Goss, 262 

S.W.3d at 794).

Under the necessary-use exception, an employer has a duty to make its 

premises safe when, despite an employee’s awareness of the risks, it is necessary 

that the employee use the dangerous premises and the employer should have 

anticipated that the employee is unable to take measures to avoid the risk. Id. at 208. 

However, the necessary-use exception does not apply, and the employer has “no 

duty to protect or warn [employees,] when they are aware of the risks and could have 

avoided them.” Id. 

Flores asserted that he “fell back” while getting down from his work pickup 

because he took too long of a stride while holding onto a toolbox. In its motion for 

traditional summary judgment, Oil-Tech provided deposition testimony from Flores 

wherein he testified that he had a large ladder available for his use. This summary 

judgment evidence establishes that it was not necessary for Flores to step off the bed 

of the pickup in the manner that he did. Thus, the necessary-use exception is 

inapplicable because Flores could have avoided the risk presented by the manner in 

which he got down from his work pickup. The trial court did not err by granting 

Oil-Tech’s motion for traditional summary judgment that it had no additional duty 

to warn Flores under the necessary-use exception. 
9

Duty to Train

Flores next contends that Oil-Tech had a duty to train him on how to properly 

get down from the bed of his work pickup. In most circumstances, employers have 

a duty to train their employees. Molina v. Home Depot USA, Inc., 20 F.4th 166, 170 

(5th Cir. 2021) (citing Elwood, 197 S.W.3d at 794–95) (applying Texas law). 

However, there is no duty to train employees when the danger is commonly known. 

Id. (citing Austin I, 465 S.W.3d at 210). As noted in Austin I, an “employer owes no 

duty to warn or train employees with respect to dangers that are commonly known 

or already appreciated by the employee.” 465 S.W.3d at 210 (citing Escoto, 288 

S.W.3d at 413; Goss, 262 S.W.3d at 794–95; Skiles, 221 S.W.3d at 568; Elwood, 

197 S.W.3d at 794–95).

In order to succeed on this point on traditional summary judgment grounds, 

Oil-Tech had to provide conclusive evidence that the danger of getting down from

the bed of a pickup is common knowledge or was already appreciated by Flores. See 

id. Oil-Tech provided the following excerpt from Flores’s deposition testimony as

summary judgment evidence: 

Q. . . . And so the pusher position, excuse me, you were working 

underneath a pusher for a year, right? 

A. Yes. 

Q. Okay. So you saw for a year everything the pusher did, right? 

A. Correct. 

Q. And tell me if I’m wrong. It seems like a pusher does what, 

you know, the two gentlemen that help him, his coworkers, do in 

addition to kind of supervising them, right? 

A. Yes, ma’am. You work alongside with them, but you actually 

are the person that actually gets the orders, you know, what to do. 

Q. Okay. So your job tasks were the same as before in addition 

to supervision, right? 
10

A. Correct. 

Q. So you were still . . . had the knowledge of how to get in and 

get out, load and unload, and all of that, right? 

A. Yes, ma’am. 

Q. You didn’t necessarily need any special training to be a 

pusher? 

A. No, ma’am. 

. . . . 

Q. . . . [S]o you knew how to get into and out of [the vehicle] 

without the training without injury, correct? 

A. Yes, ma’am. 

. . . .

Q. Okay. So you actually did not need additional training on 

how to enter and exit the front or the back of the vehicle, because you 

already knew how to do it, right? 

A. Correct. 

This evidence conclusively establishes that Flores was aware of how to get down 

from the bed of his work pickup and any danger associated therewith. The trial court 

did not err by granting Oil-Tech’s motion for traditional summary judgment that it 

had no duty to train Flores. 

Necessary-Instrumentalities Claim

Oil-Tech asserted that it had no duty to provide equipment that was 

unnecessary to the safe performance of Flores’s job. Oil-Tech also asserted that 

Flores had no evidence that Oil-Tech breached a legal duty to Flores. As addressed 

below, Oil-Tech contends that there is no evidence that Flores needed any additional 

equipment in order to safely get down from the bed of his work pickup.

Generally, employers have a duty to provide their employees with a safe 

workplace. Elwood, 197 S.W.3d at 794 (citing Farley v. M M Cattle Co., 529 
11

S.W.2d 751, 754 (Tex. 1975)). This duty includes providing employees with needed 

safety equipment. Id. However, an employer’s duty to provide its employees with 

equipment is limited to providing only the equipment that is necessary to perform 

the job safely. Id. at 795 (citing Allsup’s Convenience Stores, Inc. v. Warren, 934 

S.W.2d 433, 438 (Tex. App.—Amarillo 1996, writ denied)). 

The Texas Supreme Court briefly addressed an instrumentalities claim in 

Austin I. 465 S.W.3d at 214–16. Austin I involved a question certified to the Texas 

Supreme Court by the Fifth Circuit asking for the resolution of a question pertaining 

to a non-subscribing employer’s liability to an employee for an alleged premises 

defect. Id. at 199. In addition to asserting a premises liability claim, the employee 

in Austin I also asserted an instrumentalities claim. Id. at 214. The Texas Supreme 

Court declined to address the merits of the employee’s instrumentalities claim, but 

it noted that an employer had a duty to provide necessary equipment, training, or 

supervision, including a duty to furnish reasonably safe equipment for the 

performance of the job. Id. at 215. 

Afterwards, the Fifth Circuit addressed the merits of the employee’s 

instrumentalities claim. Austin v. Kroger Tex. L.P., 864 F.3d 326, 329–34 (5th Cir. 

2017) (per curiam) (Austin II). The court cited Elwood for the applicable duty to 

provide equipment necessary for the safe performance of an employee’s job. Id. at 

329 (citing Elwood, 197 S.W.3d at 794). This duty to furnish reasonably safe 

instrumentalities is “non-delegable and continuous,” and it exists “when the 

employee is performing his customary job duties.” Id. at 332. Stated another way, 

“nonsubscribing employers owe their employees a duty to provide necessary 

instrumentalities to safely perform their customary work.” Id. at 334.

The court in Austin II examined the factors identified by the Amarillo Court 

of Appeals in Warren to determine whether an instrumentality was necessary for the 

safe performance of an employee’s job: (1) whether the employee had ever 
12

requested the instrumentality in question; (2) whether the employee had complained 

that the task he was performing was unsafe; (3) whether the employee had safely 

performed the task in the past without injury; (4) whether there was evidence that 

the instrumentality “was commonly used in, or had been established by industry 

standards or customs as a safety measure for,” his job; (5) whether “a reasonably 

prudent employer would have provided such instrumentality”; and (6) whether there 

was medical evidence that the instrumentality would have prevented the employee’s 

injury. Id. at 329 (quoting Warren, 934 S.W.2d at 438). 

The employee in Warren was injured while unloading a delivery truck at a 

convenience store. 934 S.W.2d at 434. She alleged that her employer should have 

provided her with a back brace or a belt for lifting.2

 Id. at 437–38. The Amarillo 

Court of Appeals determined that there was no evidence that a back brace or a belt 

for lifting was necessary because there was no evidence of any of the factors that it 

identified. Id. at 438.

The instrumentality at issue in Austin II was a product known as “Spill 

Magic.” 864 F.3d at 327. The employer’s safety handbook recommended that it be 

used when cleaning up a spill, and its utility cart was usually stocked with it. Id. 

The employee in Austin II was injured while cleaning up a spill at a time when Spill 

Magic was not available for the employee’s use. Id. at 327–28. The Fifth Circuit

concluded that a material fact issue existed because, under the fourth and fifth 

Warren factors, there was a fact question as to whether the instrumentality in 

question was necessary for the safe performance of the job. 864 F.3d at 330–31. 

Flores contends that he provided more than a scintilla of evidence that a 

welded-on step to the bed of the pickup or a stepladder was necessary for the safe 

2

The employee in Warren also alleged that the employer should have provided a loading dock. 934 

S.W.2d at 438. The court determined that the loading dock allegation was not supported by evidence, in 

part because it was undisputed that a loading dock was not feasible at the store location where the employee 

was injured. Id. at 438.
13

performance of his job. Additionally, he contends that the evidence created a fact 

issue about whether the absence of a welded-on step on the bed of the pickup created

an unusually precarious situation. Conversely, Oil-Tech contends that the bed of 

Flores’s work pickup did not pose an unusually precarious situation and that a step 

was not necessary for him to safely perform his work.

Oil-Tech contends that the facts in this case are synonymous with the facts in 

Hendrick Medical Center v. Smith. No. 11-06-00145-CV, 2007 WL 3309120 (Tex. 

App.—Eastland Nov. 8, 2007, pet. denied). The employee in Smith alleged that she 

was shocked while plugging in a refrigerator. Id. at *1. The evidence established 

that the employee was shocked because she was touching the prongs of the plug 

while plugging it into the electrical outlet. Id. at *11–12. We concluded that the

employer had no duty to provide the employee with additional equipment because 

none was needed in order for the employee to not touch the prongs on the plug when 

plugging it into an outlet. Id. at *12. 

We disagree that the holding in Smith is applicable to the facts here. After the 

issuance of our opinion in Smith, the court in Austin II seemed to suggest that an 

examination of the Warren factors is necessary for determining whether an 

instrumentality is necessary for a job’s safe performance. 864 F.3d at 330 (citing 

Warren, 934 S.W.2d at 438). We did not address the Warren factors in Smith. 

Moreover, it would not appear that any of the Warren factors were present in Smith. 

Applying the Warren factors to the facts in this case, there is evidence that 

Flores asked for a step to be added to his work pickup and there is evidence that 

other work pickups that he used at Oil-Tech had a step.3

 However, he had gotten 

down from the bed of this work pickup without incident for at least a month, and 

there is no evidence that he necessarily reported to Oil-Tech that his work was unsafe

3

There was no evidence that the employee in Smith had requested the employer to provide her with 

the equipment that she asserted at trial was necessary for the safe performance of her job.
14

without a step. Furthermore, there is no evidence of an industry standard for when 

a step should be provided for the bed of a work pickup relative to its height from the 

ground. 

Unlike in Warren, there is evidence of a least one of the factors that the 

Amarillo Court of Appeals recognized—that Flores had requested the equipment 

upon which his instrumentalities claim is based. Because there is evidence that he 

had requested a step on his work pickup and that other work pickups that he had 

used at Oil-Tech had a step on them, there is a fact question as to whether a step was 

necessary for the safe performance of Flores’s customary duties. Because of this

fact question, the trial court erred in granting summary judgment on Flores’s 

instrumentality claim. 

Negligence Per Se

Negligence per se is a common-law concept in which a duty is based on a 

standard of conduct created by a statute or regulation rather than on the reasonably 

prudent person test used in pure negligence claims. See Smith v. Merritt, 940 S.W.2d 

602, 607 (Tex. 1997). As explained in Supreme Beef Packers, Inc. v. Maddox:

Negligence per se is a concept whereby a legislatively imposed 

standard of conduct is adopted by the civil courts as defining the 

conduct of a reasonably prudent person. In such a case, the jury is not 

asked to decide whether or not the defendant acted as a reasonably 

prudent person would have acted under the same or similar 

circumstances. The statute itself states what a reasonably prudent 

person would have done. If an excuse is not raised, the only inquiry for 

the jury is whether or not the defendant violated the statute or regulation 

and, if so, whether the violation was a proximate cause of the injury. 

67 S.W.3d 453, 455–56 (Tex. App.—Texarkana 2002, pet. denied) (citations 

omitted). 

Flores pleaded four Occupational Safety and Health Administration (OSHA) 

regulations upon which he based his negligence per se claim—29 C.F.R. §§ 1903.1, 
15

1910.24,

4 1910.178(q)(1), 1926.601. “[I]t is well-established that regulations 

promulgated under the OSHA statute neither create an implied cause of action nor 

establish negligence per se.” Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 789 

(Tex. App.—Dallas 2013, no pet.) (citing McClure v. Denham, 162 S.W.3d 346, 353 

(Tex. App.—Fort Worth 2005, no pet.)). As noted in McClure, the federal statute 

under which OSHA regulations are promulgated provides as follows: 

Nothing in this chapter shall be construed . . . to enlarge or diminish or 

affect in any other manner the common law or statutory rights, duties, 

or liabilities of employers and employees under any law with respect to 

injuries, diseases, or death of employees arising out of, or in the course 

of employment.

162 S.W.3d at 353 (quoting 29 U.S.C.A. § 653(b)(4) (West 1999)). Thus, “Texas 

courts have held that the common law duties imposed by state law are not expanded 

by OSHA regulations.” McClure, 162 S.W.3d at 353 (citing Richard v. Cornerstone 

Constructors, Inc., 921 S.W.2d 465, 468 (Tex. App.—Houston [1st Dist.] 1996, writ 

denied) (op. on reh’g)). 

The four OSHA regulations upon which Flores relies provide as follows: 

29 C.F.R. § 1903.1 Purpose and Scope.

The Williams–Steiger Occupational Safety and Health Act of 

1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) requires, in part, that 

every employer covered under the Act furnish to his employees 

employment and a place of employment which are free from recognized 

hazards that are causing or are likely to cause death or serious physical 

harm to his employees. The Act also requires that employers comply 

with occupational safety and health standards promulgated under the 

Act . . . . 

Former 29 C.F.R. § 1910.24 Fixed industrial stairs.

(a) Application of requirements. This section contains 

specifications for the safe design and construction of fixed general 

industrial stairs. This classification includes interior and exterior stairs 

4

Flores is relying on a previous version of 29 C.F.R. § 1910.24 pertaining to fixed industrial stairs. 
16

around machinery, tanks, and other equipment, and stairs leading to or 

from floors, platforms, or pits. . . .

(b) Where fixed stairs are required. Fixed stairs shall be provided 

for access from one structure level to another where operations 

necessitate regular travel between levels, and for access to operating 

platforms at any equipment which requires attention routinely during 

operations. Fixed stairs shall also be provided where access to 

elevations is daily or at each shift for such purposes as gauging, 

inspection, regular maintenance, etc., where such work may expose 

employees to acids, caustics, gases, or other harmful substances, or for 

which purposes the carrying of tools or equipment by hand is normally 

required. . . . 

29 C.F.R. § 1910.178 Powered industrial trucks.

(q) Maintenance of industrial trucks. (1) Any power-operated 

industrial truck not in safe operating condition shall be removed from 

service. All repairs shall be made by authorized personnel. 

29 C.F.R. § 1926.601 Motor Vehicles.

(a) Coverage. Motor vehicles as covered by this part are those 

vehicles that operate within an off-highway jobsite, not open to public 

traffic. . . . 

(b) General requirements. . . . (14) All vehicles in use shall be 

checked at the beginning of each shift to assure that the following parts, 

equipment, and accessories are in safe operating condition and free of 

apparent damage that could cause failure while in use: service brakes, 

including trailer brake connections; parking system (hand brake); 

emergency stopping system (brakes); tires; horn; steering mechanism; 

coupling devices; seat belts; operating controls; and safety devices. All 

defects shall be corrected before the vehicle is placed in service. These 

requirements also apply to equipment such as lights, reflectors, 

windshield wipers, defrosters, fire extinguishers, etc., where such 

equipment is necessary. 

C.F.R. §§ 1903.1, 1910.24 (a)–(b) (pre January 17, 2017 version of this regulation), 

1910.178, 1926.601 (emphasis in original).
17 

 A regulation cannot serve as the basis for negligence per se when the 

regulation does not provide “a specific standard of conduct different from the 

common-law standard of ordinary care.” Maddox, 67 S.W.3d at 456. The OSHA 

regulations upon which Flores relies do not define a mandatory standard of conduct 

with respect to furnishing a step for ingress and egress from the bed of his work 

pickup.

5

 These regulations essentially require the employer to exercise safety—a 

standard that requires the exercise of judgment that is the same as the ordinarily 

prudent person standard. See id; see also Elwood, 197 S.W.3d at 794 (noting that 

employers have a duty “to use ordinary care in providing a safe workplace”). 

“Where a statute incorporates the ordinarily prudent person standard, negligence per 

se does not apply because the statute does not establish a specific standard of conduct 

different from the common-law standard of ordinary care.” Maddox, 67 S.W.3d at 

456. Accordingly, the trial court did not err in granting summary judgment with 

respect to Flores’s claim for negligence per se.

Gross Negligence Claim

In his final contention, Flores asserts that the trial court erred in granting OilTech’s motion for summary judgment on his gross negligence claim. Gross 

negligence is statutorily defined as an act or omission:

(A) which when viewed objectively from the standpoint of the 

actor at the time of its occurrence involves an extreme degree of risk, 

considering the probability and magnitude of the potential harm to 

others; and

5

We note that OSHA issued a “standard interpretation” of 29 C.F.R. § 1910.24 wherein it indicated 

that, at least as far as the trailers on semi-trailer trucks are concerned, there are no OSHA requirements that 

“require any specific safety equipment or access means” with respect to stairs or railings on trailers. OSHA 

Std Interp 1910.24 (D.O.L.), 2015 WL 5781030, February 13, 2015; see https://www.osha.gov/lawsregs/standardinterpretations/2015-02-13 (last accessed on August 25, 2022). 
18

(B) of which the actor has actual, subjective awareness of the risk 

involved, but nevertheless proceeds with conscious indifference to the 

rights, safety, or welfare of others.

TEX.CIV. PRAC. & REM.CODE ANN. § 41.001(11) (West Supp. 2021); see Boerjan v. 

Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (per curiam). Unlike ordinary 

negligence, gross negligence contains “both an objective and a subjective 

component.” Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012) 

(citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21–22 (Tex.1994)). Under the 

objective component of gross negligence, “‘extreme risk’ is not a remote possibility 

of injury or even a high probability of minor harm, but rather the likelihood of 

serious injury to the plaintiff.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 

(Tex. 1998). Under the subjective component, “actual awareness means that the 

defendant knew about the peril, but its acts or omissions demonstrated that it did not 

care.” Id.

Even though ordinary negligence is a prerequisite to establish gross 

negligence, evidence of ordinary negligence is not sufficient to prove gross 

negligence. See U–Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 140 (Tex. 2012). 

Conduct that is “merely thoughtless, careless, or not inordinately risky” is not 

grossly negligent. Ardoin v. Anheuser–Busch, Inc., 267 S.W.3d 498, 503 (Tex. 

App.—Houston [14th Dist.] 2008, no pet.) (quoting Moriel, 879 S.W.2d at 22). The 

integral difference between ordinary negligence and gross negligence is the 

subjective component of the defendant’s state of mind. La.-Pac. Corp. v. Andrade, 

19 S.W.3d 245, 246–47 (Tex. 1999). “[A] party cannot be liable for gross negligence 

when it actually and subjectively believes that circumstances pose no risk to the 

injured party, even if they are wrong.” Waldrip, 380 S.W.3d at 141 (citing Andrade, 

19 S.W.3d at 248).
19

We must examine all of the events and circumstances from the defendant’s 

perspective at the time the events occurred, without taking hindsight into 

consideration. Reeder, 395 S.W.3d at 796; Ellender, 968 S.W.2d at 922. In 

analyzing gross negligence claims, we must take the employee’s experience into 

consideration. Escoto, 288 S.W.3d at 412. Additionally, under Texas law, “extreme 

risk” in the gross negligence context “is a function of both the magnitude and 

probability of the potential injury.” Graham v. Adesa Tex., Inc., 145 S.W.3d 769, 

772 (Tex. App.—Dallas 2004, pet. denied). “To assess the degree of risk, the 

evidence is viewed objectively from the actor’s standpoint.” Id. at 773.

Flores contends that he produced more than a scintilla of evidence “that [OilTech] authorized or ratified its employee’s or agent’s gross negligence or was 

grossly negligent in hiring [Venegas] who failed to timely weld the step which 

[Flores] requested onto the bed of its truck.” Flores relies on the following evidence 

to support this contention: (1) Flores’s deposition testimony that all of the previous 

trucks that Flores drove had a step on them either near the bed or the cab of the truck; 

(2) Venegas’s deposition testimony that a step could either be bolted or welded onto 

a truck; and (3) additional deposition testimony from Venegas that some of OilTech’s trucks have steps on the back of them and that it is relatively inexpensive to 

attach steps to the trucks that do not have them.

A review of the record reveals that Flores failed to provide a scintilla of 

evidence that the failure to attach a step to Flores’s work truck objectively involved 

an extreme risk of harm to Flores. Flores hurt his knee getting down from the bed 

of his work truck—a task that he as an experienced employee performed on a daily 

basis without incident until he was injured. See Escoto, 288 S.W.3d at 412. Because 

of the nature of the manner in which he was injured, there was not a likelihood of 

serious injury to Flores. See Ellender, 968 S.W.2d at 921. Viewed objectively, the 

alleged equipment deficit, coupled with the lack of magnitude and probability of the 
20

injury, did not pose an extreme degree of risk. Accordingly, the trial court did not 

err by granting Oil-Tech’s no-evidence motion for summary judgment on Flores’s 

claim for gross negligence.

This Court’s Ruling

We affirm the judgment of the trial court with respect to Flores’s claims based 

on a duty to warn, a duty to train, negligence per se, and gross negligence. However, 

we reverse the judgment of the trial court with respect to Flores’s negligence claim 

for failure to provide a necessary instrumentality, and we remand that claim to the 

trial court for further proceedings. 

JOHN M. BAILEY

CHIEF JUSTICE

August 31, 2022

Panel consists of: Bailey, C.J., 

Trotter, J., and Wright, S.C.J.6

Williams, J., not participating. 

6

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.