CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY 

A PARTNERSHIP OF PROFESSIONAL CORPORATIONS

Attorneys at Law 

KEVIN D. JEWELL

SHAREHOLDER

DIRECT DIAL NO.(713) 654-9620

E-MAIL: kevin.jewell@chamberlainlaw.com

1200 SMITH STREET, SUITE 1400

HOUSTON, TEXAS 77002-4496 

(713) 658-1818 (800) 342-5829

(713) 658-2553 (FAX)

chwwm@chamberlainlaw.com

HOUSTON

ATLANTA

PHILADELPHIA

SAN ANTONIO

July 22, 2015 

Jeffrey D. Kyle, Clerk 

Third Court of Appeals 

Price Daniel, Sr. Building 

209 W. 14th Street, Room 101 

Austin, Texas 78701 

Re: No. 03-14-00080-CV; Gattis Electric, Inc. v. Mann, et al.; in the 

Third Court of Appeals, Austin, Texas. 

Dear Mr. Kyle: 

Appellant Gattis Electric, Inc. submits this letter in response to the 

supplemental brief filed by Appellees on July 13, 2015. TEX. R. APP. P. 38.7. 

Appellees cite the Texas Supreme Court’s recent decision in Austin v. 

Kroger Texas, L.P., No. 14-0216, 2015 WL 3641066 (Tex. June 12, 2015), in 

support of the argument that their case is properly considered one grounded in 

general negligence, as opposed to premises defect. Austin was decided on certified 

questions from the Fifth Circuit. 

The principal problem with Appellees’ position is that Austin involved an 

analysis of duties in the employer/employee relationship. The plaintiff in Austin

was an employee who filed a negligence suit against his non-subscribing employer. 

Id. In contrast, the relationship between Lawhon and Gattis was not one of 

employer/employee. Lawhon was an independent contractor. 

 

ACCEPTED

03-14-00080-CV

6179121

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/22/2015 2:42:58 PM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/22/2015 2:42:58 PM JEFFREY D. KYLE Clerk
July 22, 2015

Page 2

Austin does not support Appellees’ position for additional reasons. There, 

the Texas Supreme Court addressed the viability of Austin’s causes of action for 

“engaging in negligent activities” and “negligently failing to provide a ‘necessary 

instrumentality.’” Id. at *14. Importantly, the court acknowledged that the Fifth 

Circuit affirmed summary judgment for Kroger on the “negligent activity” claim 

because the plaintiff’s injury “arose from a premises condition rather than any 

contemporaneous activity by Kroger, and that Austin ‘cannot pursue both a 

negligent activity and a premises defect theory of recovery based on the same 

injury.’” Id. at *14. “Thus, when a claim does not result from contemporaneous 

activity, the invitee has no negligent-activity claim, and his claim sounds 

exclusively in premises-liability.” Id. at *15. That principle, unchanged and 

reaffirmed by Austin, applies here. 

Austin held, however, that the plaintiff in that case could pursue an alternate 

theory of recovery: that his employer was negligent in failing to provide 

necessary instrumentalities that would have allowed him to perform his job safely. 

But it was only due to the plaintiff’s employment relationship with Kroger that 

permitted such a claim to proceed because the employer/employee relationship 

“may give rise to additional duties, such as a duty to provide necessary equipment, 

training, or supervision.” Id. at *15. Regardless, the court clarified, “[i]f the only 

relationship between Austin and Kroger were that of landowner-invitee, the 

alleged facts could only give rise to a premises-liability claim.” Id. (emphasis 

added).

Again, here, Lawhon was not Gattis’s employee, nor did Lawhon allege a 

“negligent instrumentality” theory of the type Austin recognized or that would 

apply in the context of an independent contractor relationship. Further, Austin

certainly did not hold that an ordinary negligence jury question is appropriate in a 

premises defect case involving injury to an independent contractor. Thus, the 

analysis applied by Appellant controls this case and the judgment must be 

reversed. 

Of course, Gattis did not owe Lawhon any additional duties for at least one 

other reason—Lawhon failed to prove, or secure a jury finding, that Gattis 

controlled his injury-producing work (which was in any event a task Gattis was 

unaware Lawhon agreed to perform, and outside Gattis’s scope of work on the 

property). The control an employer exerts over its employee—present in Austin—
July 22, 2015

Page 3

is clearly absent from the independent contractor relationship between Gattis and 

Lawhon.

Lawhon says his claim against Gattis is not a “premises defect” claim 

because Gattis was not the property owner. That is irrelevant to the proper 

characterization of his claim. Gattis occupies a position of a contractor relative to 

Lawhon, who occupies a position of subcontractor. A contractor in Gattis’s 

position is held to, at most, the same standard as a premises owner with respect to 

injuries to an independent contractor on the premises. See McClure v. Denham, 

162 S.W.3d 346, 351, n. 3 (Tex. App.—Fort Worth 2005, no pet.) (premises owner 

owes same duty as general contractor to independent contractor’s employee). 

Austin does nothing to alter the applicable duties in the present context.

Respectfully submitted,

CHAMBERLAIN, HRDLICKA, WHITE,

WILLIAMS & AUGHTRY

By: /s/ Kevin Jewell

Kevin D. Jewell

State Bar No. 00787769

1200 Smith Street, Suite 1400

Houston, Texas 77002

Telephone: (713) 658-1818

Telecopy: (713) 658-2553

ATTORNEYS FOR APPELLANT,

GATTIS ELECTRIC, INC.

KDJ/dlk

1952385
July 22, 2015

Page 4

Via electronic service

D. Todd Smith

Smith Law Group, P.C.

1250 Capital of Texas Highway South

Three Cielo Center, Suite 601

Austin, Texas 78746

Via electronic service

Henry Moore

Jayme Bomben

316 W. 12th St., Suite 318

Austin, Texas 78701

Via electronic service

Sally S. Metcalfe

Metcalfe Law, P.L.L.C.

901 South Mopac Expressway

Plaza One, Suite 300

Austin, Texas 78746
July 22, 2015

Page 5

CERTIFICATE OF COMPLIANCE

The undersigned certifies this brief complies with the typed—volume 

limitations of Texas Rule of Appellate Procedure 9. This brief contains 636 words, 

excluding the parts of the brief exempted, and has been prepared in a 

proportionally spaced typeface using Microsoft Word 2010 in Times New Roman, 

14 point.

 /s/ Kevin D. Jewell