### CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY

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Attorneys at Law

KEVIN D. JEWELL

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- MAIL: kevin.jewell@chamberlainlaw.com 1200 SMITH STREET, SUITE 1400 HOUSTON, TEXAS 77002

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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 , T exas 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. T EX

. R. A PP

. 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

CLERKJuly 22 , 201 5

Page 2

Austin does not support Appellees’ position for additional reasons. There, the Texas Supreme Court addressed the viability of Austin’s cause s of action for “engaging in negligent activities ” and “ negligently failing to provide a ‘necessary instrumentality .’” Id . at *14. Importantly, t he court acknowledged that the Fifth

Circuit affirme d 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 cla im, 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 i t was only due to the plaintiff’s employment relationship with Kroger that permitted such a claim to proceed because the e mployer/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 l andowner

- 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 jur y 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 , 201 5

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

A TTOR NEYS FOR A PPELLANT

, G ATTIS E LECTRIC

, I NC

.

KDJ/dlk

1952385July 22 , 201 5

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 78746July 22 , 201 5

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 63 6 words, excluding the parts of the brief exempted, and has been pre pared in a proportionally spaced typeface using Microsoft Word 2010 in Times New Roman, 14 point.

/s/ Kevin D. Jewell