Opinion
01-21-00235-CV
08-30-2022
MELISSA GARCIA, INDIVIDUALLY AND AS REPRESENTATIVE OFTHE ESTATE OF OBERLIN GARCIA, DECEASED, AMY GARCIAMORALES, CONRADO GARCIA, AND OBERLIN GARCIA, JR.,INDIVIDUALLY, Appellants v. SERVICE TRANSPORT COMPANY, Appellee
On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2018-23951
Panel consists of Justices Landau, Guerra, and Farris Justice Landau, concurring without separate opinion.
MEMORANDUM OPINION
April L. Farris Justice
Appellants are individuals related to Oberlin Garcia, a truck driver who died as a result of injuries he suffered from falling off the top of his tanker trailer.Appellants sued Garcia's employer, appellee Service Transport Company ("STC"), alleging that STC was grossly negligent by allowing or requiring Garcia to climb the ladder on the side of his trailer to open vent doors on top of the trailer without providing fall training and protective equipment. The trial court granted summary judgment in STC's favor. In two issues, appellants argue that the trial court erred by granting summary judgment because (1) they adduced evidence raising a genuine issue of material fact on both elements of their gross negligence action against STC; and (2) a genuine issue of material fact exists regarding proximate causation. We affirm.
Appellant Melissa Garcia appears in both an individual capacity and as the representative of the estate of Oberlin Garcia. Appellants Amy Garcia Morales, Conrado Garcia, and Oberlin Garcia Jr. appear in their individual capacities.
Appellants also sued BASF Corp., which is not a party to this appeal.
Background
Oberlin Garcia was a commercial truck driver who transported hazardous liquid chemicals in a tanker trailer for delivery to various customer facilities throughout the country. Garcia worked for STC. On May 16, 2016, Garcia arrived at a facility in Livonia, Michigan, to deliver a load of chemicals to BASF Corp., STC's largest customer. This was Garcia's first time at the Livonia facility, and a fellow STC truck driver informed him that the facility required drivers to climb on top of the tanker trailer to open a vent door, also called a crash box, so that BASF personnel could unload the chemicals from the tanker. Other facilities generally had their own employees open the crash box before unloading chemicals from tankers. Garcia exited his truck and climbed the ladder attached to the side of the tanker. When he reached the top of the ladder, Garcia attempted to step onto the top of the tanker and reach for the crash box when his right foot slipped. Garcia fell ten feet onto the pavement below, suffering fatal injuries.
Neither party argues on appeal that Michigan law rather than Texas law should apply in this case.
Appellants sued STC and BASF, asserting causes of action against STC for gross negligence and aggravated assault resulting in Garcia's death. Appellants asserted numerous gross negligence claims against STC, including claims that STC failed to protect drivers working at heights with adequate policies, training, and supervision; failed to instruct or warn Garcia of unsafe conditions; and violated numerous federal regulations. Appellants alleged that STC's failures resulted in an extreme degree of risk to Garcia.
On appeal, appellants only challenge the trial court's summary judgment ruling on their gross negligence action against STC. Appellants do not challenge the dismissal of their aggravated assault action against STC.
STC filed a motion for summary judgment on no-evidence and traditional grounds. STC listed all of appellants' various gross negligence claims against it and separated the numerous claims into nine categories. The categories included allegations that STC did not provide Garcia with the proper safety equipment, training, or supervision to climb the ladder of the tanker. STC went through each category and argued, among other things, that no evidence supported appellants' allegations concerning an extreme degree of risk.
STC moved for summary judgment on appellants' fourth amended petition, which is not contained in the record on appeal. Appellants subsequently filed a sixth amended petition, which was their live petition at the time of the trial court's summary judgment ruling, but STC did not file an amended motion for summary judgment. On appeal, appellants do not challenge the trial court's summary judgment ruling on the ground that STC moved for summary judgment on a prior petition. Nor do appellants argue that the two petitions differed in any way. Accordingly, we presume that STC moved for summary judgment on all of appellants' claims asserted against it in their sixth amended petition.
STC also argued that summary judgment was proper on traditional grounds, and it relied upon numerous exhibits. For example, STC relied on a video recording of the incident, which is not included in the record on appeal. STC also relied on appellants' discovery responses; excerpts from depositions of various STC employees and the parties' expert witnesses; expert reports; service records for the tanker trailer from which Garcia fell; and Garcia's training records. Finally, STC relied on reports of its employees' falls from trailers during the company's thirty-year history. These reports showed that five employees had fallen from trailers and four of these falls resulted in minor injuries, such as a stiff knee and bruises that did not require medical treatment. The fifth fall resulted in a broken leg by a trainee driver.
Appellants filed a response. They argued that STC failed to provide its drivers with fall training or equipment, which involved an extreme degree of risk about which STC knew. Appellants relied on excerpts from the depositions of various STC employees, including two truck drivers and a safety director. They also relied on documents from the Cargo Tank Risk Management Committee ("CTRMC"), an organization which appellants claimed set the trucking industry standard for safely working on top of tankers. Finally, appellants relied on the policies of Trimac Transportation, Inc., a competitor of STC, which required its drivers to use fall protection when working more than eight feet above the ground. Appellants also argued that STC had subjective awareness of the extreme risk but acted with conscious indifference to Garcia's rights, safety, and welfare.
STC filed a reply. STC challenged appellants' characterization of the summary judgment evidence. STC also argued that appellants' response did not adduce any evidence that climbing the tanker ladder involved an extreme risk or that STC knew of such a risk and was consciously indifferent to it. The trial court granted STC's motion for summary judgment and dismissed appellants' claims against STC.
STC filed a motion to sever appellants' claims against it into a new lawsuit. While this motion was pending, appellants filed a motion for reconsideration of the trial court's summary judgment ruling. In this motion, appellants raised many of the arguments they had previously raised and focused primarily on STC's knowledge of a risk accompanying the climbing of a ladder to open the crash box. STC filed a response opposing reconsideration of the court's summary judgment ruling. The trial court held a hearing on the motion for reconsideration. At the end of the hearing, the court orally denied the motion. The court later entered a written order denying the motion. Finally, the court granted STC's motion for severance and severed appellants' claims against STC into a new cause number resulting in a final judgment. This appeal followed.
Summary Judgment
In their first issue, appellants argue that they produced evidence raising a genuine issue of material fact on both elements of their gross negligence action. In their second issue, appellants argue that a genuine issue of material fact exists regarding proximate causation. Our resolution of the first element of gross negligence-whether STC's conduct involved an extreme degree of risk-is dispositive of this appeal.
A. Standard of Review
We review a trial court's summary judgment ruling de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018); Mason v. AMed-Health, Inc., 582 S.W.3d 773, 780 (Tex. App.-Houston [1st Dist.] 2019, pet. denied). When, as here, the trial court grants summary judgment without specifying the grounds for its ruling, we will affirm the judgment if any ground presented in the motion is meritorious. Mason, 582 S.W.3d at 780.
A party may move for summary judgment on no-evidence or traditional grounds. Tex.R.Civ.P. 166a(c), (i). When a party moves on both grounds and the trial court's order does not specify its reasons for granting summary judgment, we first review the propriety of the summary judgment under the no-evidence standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the trial court properly granted summary judgment on no-evidence grounds, we need not consider whether the summary judgment was also proper on traditional grounds. Id.
A party may move for no-evidence summary judgment after an adequate time for discovery has passed. Tex.R.Civ.P. 166a(i). A trial court must grant summary judgment if the movant identifies one or more essential elements of a claim or defense for which the nonmovant would have the burden of proof at trial and the nonmovant produces no admissible summary judgment evidence raising a genuine issue of material fact. See id.; Mason, 582 S.W.3d at 780-81.
To defeat a no-evidence motion for summary judgment, the nonmovant must adduce at least a scintilla of evidence raising a genuine issue of material fact on each challenged element of the nonmovant's claims. Mason, 582 S.W.3d at 781. "More than a scintilla of evidence exists when reasonable and fair-minded people could reach different conclusions based on the evidence." Martinez v. Kwas, 606 S.W.3d 446, 462 (Tex. App.-Houston [1st Dist.] 2020, pet. denied) (quoting Anderson v. Durant, 550 S.W.3d 605, 616 (Tex. 2018)). "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." Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003) (quoting King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)) (internal quotation marks omitted). "Unless the respondent produces summary judgment evidence raising a genuine issue of material fact, the court must grant the motion." Mason, 582 S.W.3d at 781 (quoting W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)).
B. Law of Gross Negligence
Gross negligence includes both objective and subjective components. Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019); Martinez, 606 S.W.3d at 463. Gross negligence requires proof that (1) when viewed objectively from the defendant's standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the defendant had actual, subjective awareness of the risk involved, but the defendant nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Medina, 593 S.W.3d at 247; Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994); Tex. Civ. Prac. & Rem. Code § 41.001(11).
Under the objective prong, extreme risk does not mean a remote possibility or even a high probability of minor harm, but rather it means a likelihood of serious injury. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); Martinez, 606 S.W.3d at 463; see Moriel, 879 S.W.2d at 22 ("Extreme risk is a function of both the magnitude and the probability of the anticipated injury to the plaintiff."). "The risk should be 'examined prospectively from the perspective of the actor, not in hindsight.'" Medina, 593 S.W.3d at 248 (quoting Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008)); see Moriel, 879 S.W.2d at 23 ("Determining whether an act or omission involves extreme risk or peril requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.").
A party may rely on either direct or circumstantial evidence to prove the elements of gross negligence. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001); Martinez, 606 S.W.3d at 463. "Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence." Mason, 582 S.W.3d at 791 (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)). Conversely, evidence of a defendant's care is insufficient to defeat a finding that the defendant acted with gross negligence. Lee Lewis Constr., 70 S.W.3d at 785.
C. STC's Objections
We first address STC's objections to citations in appellants' appellate brief. Because the issue of extreme risk is dispositive in this appeal, we only consider STC's objections to appellants' citations supporting their arguments on the extreme risk element of gross negligence. Appellants did not file a reply brief or otherwise respond to STC's objections.
1. STC's Policy and Training Concerning Falls
First, STC objects that several of appellants' arguments on appeal improperly cite to their summary judgment response rather than to evidence. In their appellate brief, appellants argue that STC "knew of the extreme dangers associated with its conduct" because (1) it provided fall training and protection for some employees but not for truck drivers like Garcia; (2) these policies and procedures protected those employees from hazards involving climbing on top of and working on tankers; and (3) despite knowing such protections were necessary for all employees, STC willfully did not provide them to truck drivers. Appellants supported these arguments by citing only to the body of their summary judgment response rather than to any summary judgment evidence.
The cited pages in the summary judgment response contain screenshots of STC's fall protection policy, as well as argument that the policy applies only to non-truck driving employees but not to truck drivers like Garcia. The screenshots cite to the policy, which was attached as summary judgment evidence. Appellants support their argument about the scope and applicability of the policy by citing to testimony of Marvin Pivonka, a STC terminal manager.
Mindful that our summary judgment review considers whether any evidence raises a genuine issue of material fact, parties are generally cautioned to cite to actual record evidence when challenging the propriety of summary judgment. See Tex. R. Civ. P. 166a(c), (i); Tex.R.App.P. 38.1(i) (requiring appellate brief to contain "appropriate citations to authorities and to the record"). In this case, however, we have little difficulty tracing the citations in appellants' appellate brief to the actual evidence supporting them. Construing the briefing rule liberally, as we must, we conclude that these citations substantially comply with the requirement that an appellate brief contain appropriate citations to the record. See Tex. R. App. P. 38.9 (stating that courts liberally construe briefing rule and, generally, "substantial compliance with this rule is sufficient"). In the interest of fairness, we will consider these arguments.
2. Testimony of Jonathan Ard
STC also objects to appellants' reliance on the testimony of Jonathan Ard, a STC dispatcher, because it is not included in the appellate record. Our review is limited to the appellate record, and we cannot consider evidence outside the record on appeal. Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 305 (Tex. App.- Houston [1st Dist.] 2020, no pet.); Dauz v. Valdez, 571 S.W.3d 795, 811 (Tex. App.-Houston [1st Dist.] 2018, no pet.). We agree with STC that Ard's testimony upon which appellants rely for their extreme risk arguments is not included in the appellate record. Although the record contains excerpts of Ard's deposition testimony, the specific pages cited by appellants on appeal are not included in these excerpts. Nor do these excerpts contain the subject matter for which appellants cite them. Because this testimony is not included in the record, we cannot consider it.
3. Certain Testimony of Juan Alvarez
STC further objects to appellants' reliance on certain testimony by STC truck driver Juan Alvarez. In the challenged testimony, Alvarez stated that the most dangerous part of being a truck driver is "[g]oing up that ladder and opening those doors and closing the doors. For everybody." He agreed with appellants' counsel that climbing the tanker ladder is extremely dangerous without fall protection and that it presents an extreme risk. Finally, Alvarez testified that, to open the crash box, "you just pray to God that you have enough strength and enough gumption to pull it open" and "hopefully you won't get hurt." STC argues that appellants misconstrue this testimony because the citations in appellants' brief are inaccurate and "some portions of dialogue are conflated to appear as an unbroken, linear conversation when the various cited statements are, in fact, found in different parts of the deposition transcript."
We agree with STC that the challenged citations are inaccurate. We also agree that the quoted dialogue does not accurately reflect breaks and objections in the transcript. However, our review of the record reveals the inaccurately cited testimony appears on pages in the record adjacent to the pages cited by appellants. Moreover, appellants' omission of breaks and objections in the quoted testimony does not result in a misrepresentation of the testimony. Because this evidence is contained in the appellate record, we will consider it.
4. Certain Testimony of Kevin Parker
Finally, STC objects to appellants' reliance on testimony by Kevin Parker, a STC safety director, because the testimony is not included in the summary judgment record. Appellants rely on the challenged testimony to support their argument that fall protection was available and feasible to motor carriers at the time of Garcia's accident, and equipment such as a rolling gantry was the safest way to eliminate dangers when truck drivers climb on top of tankers. Appellants also quoted testimony in which Parker agreed with appellants' counsel that fall protection was available and feasible for truck drivers.
We agree with STC that the challenged testimony is not included in the appellate record. As with Ard's deposition testimony, both parties attached excerpts of Parker's deposition testimony to support their summary judgment arguments. On appeal, appellants cited only to STC's excerpt of Parker's deposition, but this excerpt does not contain either the pages cited by appellants or the subject matter on which they rely. We have also reviewed the excerpt attached to appellants' summary judgment response, and this excerpt likewise does not include the pages cited or the subject matter for which appellants cite it. As stated above, we cannot consider evidence outside the record on appeal. See Rock, 608 S.W.3d at 305. Therefore, we cannot consider Parker's challenged testimony.
D. Analysis
As stated above, to withstand summary judgment, appellants were required to present some evidence that (1) when viewed objectively from the actor's standpoint, the act or omission complained of involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor had actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others. Medina, 593 S.W.3d at 247; Tex. Civ. Prac. & Rem. Code § 41.001(11). Extreme risk is "not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury." U-Haul Int'l, 380 S.W.3d at 137.
Appellants contend that climbing a ladder to the top of a tanker trailer in order to open a crash box constitutes an extreme risk. According to appellants, STC did not provide fall training or protection for truck drivers who had to climb and work on top of tankers even though STC provided fall training and protection for non-driver employees who were working on top of the tankers. To support these arguments, appellants rely on STC's fall policy and procedures; testimony of various witnesses; documents from a safety committee; and fall policies and procedures of one of STC's competitor trucking companies.
STC responds that appellants presented no evidence that serious injury or death was likely to occur from climbing tanker ladders. To the contrary, STC argues that, over its thirty-year history, it had only ever received five reports of employees falling from a ladder prior to Garcia's accident. STC argues that four of these reported falls involved only minor injuries while a fifth fall resulted in a broken leg.
We agree with STC that appellants presented no evidence of an extreme risk when viewed objectively from STC's point of view at the time of Garcia's accident. See Medina, 593 S.W.3d at 247.
Appellants' arguments primarily focus on the second prong of gross negligence: whether STC had subjective awareness of such an extreme risk to which it was consciously indifferent. See Moriel, 879 S.W.2d at 22 (stating that objective element of extreme risk is interrelated with subjective element of awareness of risk, but Texas follows "hybrid definition" requiring both objective and subjective tests for gross negligence). Appellants' arguments concerning the extreme risk element mostly presume that the risk was extreme without providing any analysis showing that serious injury was likely to occur. Indeed, the strongest evidence of an extreme risk is testimony that climbing and working on top of tankers can be dangerous. But the dangerous nature of an activity alone does not raise a fact issue on whether the activity involves an extreme degree of risk. See Lee Lewis Constr., 70 S.W.3d at 786 ("The dangerous nature of multi-story construction projects alone is not enough to satisfy the objective component of gross negligence.").
As discussed in further detail below, appellants' evidence falls short of raising a fact issue on whether climbing the ladder to open the crash box without fall training and protection involved a likelihood of serious injury to Garcia. See U-Haul Int'l, 380 S.W.3d at 137; see also Lee Lewis Constr., 70 S.W.3d at 785 ("Some evidence of simple negligence is not evidence of gross negligence."). While there is some evidence of the magnitude of potential harm, there is no evidence showing that this activity involves a likelihood of serious injury. See Medina, 593 S.W.3d at 247; Moriel, 879 S.W.2d at 22 ("Extreme risk is a function of both the magnitude and the probability of the anticipated injury to the plaintiff.") (emphasis added).
1. Fall Training and Equipment
Appellants first argue that STC "knew of the extreme dangers associated with its conduct" because it provided fall training and protection for non-driving employees when working atop tankers while not providing the same fall training and protection for truck drivers.
To support this argument, appellants rely on the fall protection policy and procedure in STC's Health and Safety Manual. This manual includes a procedure for fall protection "to protect employees against fall hazards while they are working on elevated surfaces and ladders." The manual requires employees to wear a body harness or a lanyard when working at heights greater than six feet. The manual does not state that it explicitly applies only to non-driving employees.
Appellants also rely on the testimony of Pivonka, a STC terminal manager who purportedly "confirmed that only non-truck driving employees working on top of tankers are provided fall protection equipment" while STC "refused to provide the same protections to its truck drivers who are also required to perform work on top of tankers." But our review of the cited testimony reveals that it does not support appellants' argument that the fall protection policy applied only to non-truck driving employees. Rather, Pivonka testified that STC eventually provided fall protection equipment to employees who wash trucks in the "wash rack" at one of its terminals even though it did not initially require such equipment. Pivonka did not say that only truck-washing employees were provided such equipment, and he said nothing about whether such equipment was provided to truck drivers. Therefore, the evidence that appellants rely on does not support their argument that STC provided fall protection training or equipment only to non-truck driving employees but not to truck drivers.
Appellants also make this argument in another section of their appellate brief concerning the second element of gross negligence.
Nor does this evidence indicate any probability or magnitude of potential harm from working more than six feet above ground. See Medina, 593 S.W.3d at 247. Even if STC required fall training and equipment for non-driving employees working over six feet, this might be evidence that STC was subjectively aware of some risk inherent in climbing a ladder higher than six feet, but it does not establish a likelihood of serious injury by doing so. See U-Haul Int'l, 380 S.W.3d at 137; Martinez, 606 S.W.3d at 463. At best, the manual creates a mere surmise or suspicion that the risk is extreme, which does not rise to the scintilla of evidence required to defeat summary judgment. See Forbes, Inc., 124 S.W.3d at 172; Mason, 582 S.W.3d at 781. We therefore conclude that STC's Health and Safety Manual is no evidence that climbing a ladder to open the crash box involves an extreme risk.
2. Testimony of Juan Alvarez and Steven Strutz
Appellants also rely on the testimony of Juan Alvarez, one of Garcia's fellow STC truck drivers and the person who told Garcia that the BASF facility in Livonia required drivers to open the crash box before delivering chemicals to that facility. As stated above, Alvarez testified that the most dangerous part of being a truck driver is "[g]oing up that ladder and opening those doors and closing the doors. For everybody." He agreed with appellants' counsel that climbing the tanker ladder to open the crash box without fall protection is extremely dangerous and that it presents an extreme risk for drivers. Alvarez also testified that, to open the crash box, "You just pray to God that you have enough strength and enough gumption to pull it open" and "hopefully you won't get hurt." Alvarez denied that drivers were trained to safely ascend and descend the ladder or to open the crash box on top of the tanker. He also denied that STC provided fall protection equipment even though they knew drivers would have to climb on top of tankers. According to Alvarez, there is "no safe way" to be on top of the tanker trailer "unless you're hooked up to something."
This testimony does not raise a fact issue on whether climbing a tanker ladder to open the crash box involves an extreme degree of risk. See Medina, 593 S.W.3d at 247. Most of Alvarez's cited testimony is conclusory, merely stating that climbing the ladder is dangerous or agreeing with appellants' counsel that it constitutes an extreme risk without providing any underlying fact showing the probability and magnitude of harm to others. See Aguirre v. Vasquez, 225 S.W.3d 744, 755 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (concluding that expert witness's testimony that driver stopping in moving lane of traffic was voluntary and grossly negligent "does not provide the underlying facts to support the conclusion" and therefore is conclusory and does not constitute proper summary judgment proof). Alvarez does not explain why climbing the ladder to open the crash box is dangerous or unsafe, except perhaps implying that the crash box is heavy and difficult to lift. Nor does he testify that anyone had been previously injured by climbing the ladder to open the crash box. See U-Haul Int'l, 380 S.W.3d at 137; Martinez, 606 S.W.3d at 463. Therefore, Alvarez's testimony is no evidence raising a fact issue on the extreme risk element of gross negligence, specifically whether serious injury is likely to occur.
Appellants also rely on testimony from Steven Strutz, a STC training director, who testified that STC's training for drivers to transition from the tanker ladder to the top of the tanker is to "[d]o it safe." Strutz's testimony does not demonstrate that transitioning from the ladder to the top of the tanker involves an extreme risk. See Medina, 593 S.W.3d at 247. At most, this testimony indicates that a driver can transition from the ladder to the top of the tanker in an unsafe manner. As with Alvarez's testimony, Strutz's testimony does not raise a genuine issue of material fact concerning the extreme risk element of gross negligence. See Forbes Inc., 124 S.W.3d at 172.
We note that Strutz went on to testify that drivers are also trained to safely transition from the ladder to the top of the tanker by "[d]emonstration" and "observation."
3. CTRMC
Appellants next argue that STC was a member of CTRMC, which they contend sets the standard in the trucking industry for the safety of drivers working on top of tankers. Appellants rely on various CTRMC documents purportedly stating that the "goal of the industry is to reduce falls at the wide variety of facilities and situations where workers perform various duties while on top of cargo tanks." We disagree with appellants that the evidence supports these arguments.
Appellants first argue that Parker testified that CTRMC sets the industry standard for safely working on top of tankers. Parker is a STC safety director who served as a CTRMC committee member from 2012 to 2014. Although Parker initially agreed with appellants' counsel that the CTRMC "equals" the industry standard for companies that are part of the CTRMC, Parker later clarified, "Each of these items in here [the CTRMC document] are recommended practices and not industry standards." Parker's testimony refers to a CTRMC document entitled "North American Hierarchy Protocol for Protection of Workers on the Top of Tanks," which appellants also rely upon. This document states that it "is intended to identify recommended best practices for industry stakeholders to employ for reducing the exposure to falls from cargo tank motor vehicles." It expressly states that it "is advisory and contains best practices." Thus, we disagree with appellants that the evidence raises a genuine issue of material fact concerning whether CTRMC sets any safety standards for the trucking industry.
Appellants next rely on various statements in the CTRMC document, including its stated goal to reduce falls and eliminate the need to climb onto or work on top of tankers. In a section concerning the responsibilities of motor carriers, the CTRMC document states that motor carriers are responsible for, among other things, recognizing a duty to ensure the safety of employees working on top of tankers; assessing the risks in doing so; eliminating tanker-top work where practicable; publishing procedures for the "safest methods" of working atop tankers; and training employees on these procedures. The document also includes a "hierarchy of control" that lists "[avoidance of] tank top work tasks" at the top of the list. Finally, appellants also rely on materials used in a CTRMC presentation either given by Parker or given at a meeting attended by Parker. One slide, entitled "Why Slips & Falls Deserve[] Management and Driver's Attention," stated that falls "from tankers can be fatal" and falls "are #1 cause of worker injuries for trucking companies."
Appellants also rely on evidence not included in the record on appeal. First, their appellate brief includes a screenshot of a second PowerPoint slide stating, "Today: Take steps to mitigate the risks of 'Workers on the Top of Tanks'. Tomorrow: Eliminate every reason for workers to access the top of tanks." Second, they cite to a presentation concerning an investigation by the Kentucky Fatality Assessment and Control Evaluation Program, arguing that this investigation determined that an employer's training program was insufficient and concluded that prevention of similar incidents in the future requires employers to provide adequate fall protection equipment to employees accessing the top of tankers and to consider equipping the top of tanker trailers with rail systems. This evidence is not included in the appellate record. As stated above, we may not consider evidence outside the record on appeal. See Democratic Schs. Rsch., Inc. v. Rock, 608 S.W.3d 290, 305 (Tex. App.- Houston [1st Dist.] 2020, no pet.); Dauz v. Valdez, 571 S.W.3d 795, 811 (Tex. App.-Houston [1st Dist.] 2018, no pet.). Therefore, we will not consider this evidence.
While the CTRMC document implies that a risk accompanies climbing tanker ladders to work on top of tankers, this evidence does not raise a genuine issue of material fact on whether the risk is extreme. See Tex. R. Civ. P. 166a(i); Medina, 593 S.W.3d at 247; Mason, 582 S.W.3d at 781. The document does not mention anything about the probability of potential harm. See Medina, 593 S.W.3d at 247; U-Haul Int'l, 380 S.W.3d at 137. Therefore, the document does not constitute a scintilla of evidence that the risk is extreme. See Medina, 593 S.W.3d at 247; Forbes, Inc., 124 S.W.3d at 172.
The PowerPoint slide fares no better. It states that falls from tankers can be fatal, which is a scintilla of evidence of the magnitude of potential harm to drivers who climb tanker ladders to work on top of tankers. See Medina, 593 S.W.3d at 247; Martinez, 606 S.W.3d at 463. However, nothing in the cited portions of the PowerPoint slide is evidence of the probability of potential harm to drivers. See Medina, 593 S.W.3d at 247. That is, the slide does not state that serious injury is likely to occur. See id. We therefore conclude that this evidence does not create a genuine issue of material fact that an extreme risk exists when drivers climb atop tankers to open the crash box.
We note that this slide indicates that the risk for falls is enhanced due to "wind and other weather conditions," such as snow and ice buildup on tankers, that create a "unique" potential for injury. There is no allegation or evidence that wind or other weather conditions were present or contributed to Garcia's fall.
4. Policies of STC's Direct Competitor
Finally, appellants rely on the fall protection policies of Trimac Transportation, Inc., a direct competitor of STC that also transports liquid chemical cargo. Trimac also serves BASF as a customer and has delivered cargo to BASF's Livonia plant where Garcia's accident occurred.
Trimac's fall policy prohibits all employees from "ascend[ing] to an unguarded structure or on a vehicle" more than eight feet above ground "unless a fall protection system is installed and in use." This policy requiring fall protection expressly "applies to work from a ladder" more than eight feet above ground if the employee "cannot use at least one hand to hold onto the ladder/structure[.]"
Dan Purrenhage, a Trimac branch manager, testified that it is commonly known in the industry that risk of injury or death is present for truck drivers if they work atop tankers without fall protection. Purrenhage agreed with appellants' counsel that Trimac's fall policy can potentially prevent injuries and death. Purrenhage testified that Trimac's truck drivers do not like going on top of tankers without fall protection equipment because they do not want to fall off. Purrenhage agreed with appellants' counsel that it is important for truck drivers to have an adequate understanding of the work environment at a customer facility; companies should take drivers' safety concerns seriously; he knew of no reason why trucking companies could not provide fall protection for their workers; and "[t]he risk is there" for injury or death for drivers working on top of tankers without fall protection.
The mere existence of Trimac's fall protection policies and procedures does not raise a fact issue on whether climbing and working atop tanker trailers constitutes an extreme risk. As discussed above, STC's own fall protection policy applies to all employees and requires fall protection for employees working more than six feet above ground. Thus, STC's policy is more stringent than Trimac's policy requiring fall protection when working more than eight feet above ground. At best, Trimac's fall policy recognizes that a risk of injury is present for employees working on top of tankers. But the policy creates no more than a mere surmise or suspicion that serious injury is likely to occur from doing so. See id.; Forbes Inc., 124 S.W.3d at 172.
Nor did Purrenhage testify about the probability of the potential risk from drivers climbing tanker ladders to open the crash box on top of the tanker. See Medina, 593 S.W.3d at 247. He testified that the risk of death or serious injury is present, that workers disfavor working on top of tankers without fall protection because they do not want to fall, and that the "risk is there." While this testimony is some evidence of the magnitude of potential harm to others, it is not evidence of the probability of such potential harm. See id.; U-Haul Int'l, 380 S.W.3d at 137.
5. Records of Prior Falls from a Ladder
Although appellants do not rely on STC's records of prior falls off ladders to establish an extreme risk, STC does rely on this evidence to rebut appellants' arguments concerning the extreme risk element of gross negligence. According to STC, its records show only five reported instances where an employee fell off a trailer ladder during the company's history. Four of these reported falls resulted in minor injuries, and one fall resulted in a broken leg by a trainee. STC argues that five falls in more than thirty years of "event-free ladder climbs, with only one injury requiring medical attention, hardly suggests a likelihood of serious injury or death."
We agree with STC that this evidence does not raise a fact issue concerning the likelihood of serious injury from climbing tanker ladders to open the crash box without fall protection equipment. See U-Haul Int'l, 380 S.W.3d at 137 (stating that extreme risk does not mean remote possibility of serious injury but rather likelihood of serious injury); see also Medina, 593 S.W.3d at 248 (stating that risk should be examined prospectively from perspective of actor, not in hindsight). STC correctly states that four of the injuries were minor, and therefore these four incidents do not establish the existence of an extreme degree of risk. See U-Haul Int'l, 380 S.W.3d at 137 (stating that high probability of minor harm does not rise to level of extreme risk). The remaining prior fall from a ladder resulted in a broken leg. Presuming without deciding that a broken leg is a serious injury, this one injury does not show that a probability of potential harm-or likelihood of serious injury-exists when drivers climb a tanker ladder to open the crash box. See Medina, 593 S.W.3d at 247; U-Haul Int'l, 380 S.W.3d at 137.
We conclude that no evidence establishes that, when viewed objectively and prospectively from STC's perspective, STC's act of requiring or permitting its truck drivers to climb on top of tankers to open the crash box without fall protection involved an extreme degree of risk. See Medina, 593 S.W.3d at 247-48; Moriel, 879 S.W.2d at 22. Specifically, no evidence shows that serious harm is likely to result from engaging in this activity. We therefore hold that the trial court properly granted summary judgment because no evidence supported an essential element of appellants' gross negligence action against STC. See Mason, 582 S.W.3d at 780- 81.
This conclusion is dispositive of this appeal because no evidence supports an essential element of appellants' gross negligence claim. We therefore decline to address appellants' remaining arguments concerning the subjective element of gross negligence in their first issue or their proximate causation arguments in their second issue. See Tex. R. App. P. 47.1.
We overrule appellants' first issue.
Conclusion
We affirm the judgment of the trial court.