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Torts No. 02-02-337-CV, 4/24/2003. Click here for the full text of this decision FACTS: The appellants, Frank Morris and his wife, Shirley Morris, appeal the trial court’s order granting summary judgment in favor of Appellee Scotsman Industries Inc. The appellant complains that the trial court erred in granting summary judgment to Scotsman, arguing generally that the record contains material questions of fact precluding summary judgment. HOLDINGAffirmed. The appellant was employed by Kysor Panel Systems, a wholly-owned subsidiary of Scotsman. Appellant injured his back at work while loading a forklift and sued Kysor, Scotsman and Welbilt Walk-ins, another parent company of Kysor, for negligence. The trial court granted summary judgment to all defendants. The appellant appeals only the summary judgment granted to Scotsman. Because the absence of duty was the only ground challenged in the summary judgment that related to Scotsman, it was the only ground on which the trial court could have granted the summary judgment as to Scotsman. The appellant’s allegations against Scotsman constituted a complaint that Scotsman was negligent in failing to maintain a safe workplace. A negligence cause of action has three elements: 1. a legal duty; 2. breach of that duty; and 3. damages proximately resulting from the breach. The existence of a duty is a threshold question of law. The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed. The Texas Supreme Court has held that in cases where a plaintiff alleges negligence in maintaining a safe workplace, the plaintiff must show that the party it asserts had a duty to provide a safe workplace had actual control or a right of control over the specificaspect of the safety and security of the premises that led to the plaintiff’s injury. Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex. 1993). A court cannot infer duty from evidence showing actual control or a right of control over the general operation of the workplace. Under Exxon, only corporations that have the right to control or actually control safety and security policies of the workplace have a duty to the workers to maintain a safe workplace. Using the Exxonstandard, the court examines the summary judgment evidence to determine whether it raised a material issue of fact on whether Scotsman had actual control over or had a right to control Kysor’s forklift safety operations. Scotsman attached the affidavit of Roger Kissam, officer and corporate secretary of Scotsman and Kysor, to its motion for summary judgment. Kissam stated in his affidavit that Scotsman never had any responsibility or control over Kysor in any aspect of hiring and training of employees, providing safety equipment at the work site, or enforcing safety policies. He stated that Kysor operated as an independent business entity, and that Scotsman had not participated in day-to-day management of Kysor, had not created or overseen safety policies at Kysor’s work site, had not conducted safety inspections, and had not owned, operated, managed or overseen any operations at Kysor. This evidence showed Scotsman had no control over Kysor’s forklift safety operations and negated the element of duty as to negligence. Appellant, therefore, had the burden to bring forth summary judgment evidence raising a genuine issue of material fact as to duty. In his response to Scotsman’s motion for summary judgment, the appellant attached the deposition testimony of Marion Brown, who was Kysor’s acting plant manager when the appellant was injured. The appellant argued that Brown’s testimony constituted evidence raising an issue of fact on control or right of control. Brown reported to David Frase, who was president of Kysor. Frase, in turn, reported to the chief executive officer of Scotsman. Brown testified that Scotsman had the right to terminate Frase, and when counsel questioned Brown if Scotsman had the right to require Frase to terminate Brown, Brown said, “I would assume they would.” Brown testified that at the time of th eappellant’s injury, Kysor had a program to license forklift operators. Stanley Rosenquist, Kysor’s safety coordinator, administered the program and the written examination required for issuance of a forklift operator’s permit. When questioned whether Scotsman had the right to terminate Rosenquist if Scotsman felt that his performance was inadequate, Brown said, “I cannot imagine that circumstance, but since they owned us . . . I assume they probably did . . . yeah, I’m assuming they could.” Although this evidence shows that Scotsman had some general right of control over Kysor’s operations, it does not meet the Exxonstandard that requires the appellant to show that Scotsman had specific control over the safety and security of the premises, in particular the forklift licensing and safety program. Viewing this evidence in a light most favorable to the appellant, it does not raise a genuine issue of material fact. The court holds that Scotsman established that the duty element of the appellant’s claim was not met; therefore, the trial court did not err in granting Scotsman’s motion for summary judgment. OPINION: Holman, J.; Cayce, C.J.; Day and Holman, JJ.

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