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Click here for the full text of this decision FACTS:Wade Skiles had been employed by Jack-in-the-Box for 24 years and worked as a licensed tractor-trailer driver. His job duties included the transport and delivery of food product to Jack-in-the-Box restaurants. At one of his scheduled deliveries at a Jack-in-the-Box restaurant, the hydraulic lift gate to unload food product would not function. He informed the traffic supervisor that he was going to use a ladder to access the food product, climbed over the lift gate, and jumped into the back of the trailer. Skiles claimed that his knees “popped” when he landed in the trailer. Skiles submitted an employee injury claim form and eventually underwent surgery on his left knee and received physical therapy on both knees. Despite the treatment, Skiles informed Jack-in-the-Box that he was unable to return to work as a tractor-trailer driver. He was terminated when Jack-in-the-Box did not offer him another position. Jack-in-the-Box’s insurance paid $11,313.23 in past medical bills for Skiles’ injury. However, Skiles asserted that replacement surgery is necessary for both knees, at an estimated cost of approximately $70,000. Jack-in-the-Box refused to pay for the replacement surgery. Because Jack-in-the-Box is a nonsubscriber to workers compensation, Skiles filed a negligence suit. Jack-in-the-Box denied the allegations and filed a no-evidence and traditional motion for summary judgment based on the claim that Skiles’ deposition testimony established he was the sole proximate cause of his injury. Skiles responded that the trial court should deny the portion of Jack-in-the-Box’s motion requesting traditional summary judgment on an affirmative defense because Jack-in-the-Box did not establish that Skiles was negligent as a matter of law due to the fact that it failed to establish that Skiles was aware of any unsafe condition. The trial court granted Jack-in-the-Box’s motion for summary judgment without stating the grounds for its decision. Skiles appealed. HOLDING:The court reverses the trial court’s judgment and remands the case for further proceedings. Skiles argues three issues on appeal: 1. the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box breached “any” duty owed to Skiles; 2. the trial court erred when it granted summary judgment finding that there was no evidence that Jack-in-the-Box’s negligence was a proximate cause of Skiles’ injury; and 3. the trial court erred when it granted summary judgment in favor of Jack-in-the-Box on its affirmative defense finding, as a matter of law, that Skiles’ negligence was the sole proximate cause of his injury. Skiles contends that Jack-in-the-Box owed him the duty to provide safe instrumentalities; the duty to warn; the duty to adequately hire, train, and supervise; and the duty to instruct. Jack-in-the-Box responds that Skiles failed to produce “any” evidence that it owed a duty to Skiles. The court finds that Jack-in-the-Box had a legal duty to provide Skiles with safe instrumentalities with which to do his job. Next, the court notes that Skiles offered evidence that when he suggested he could use a ladder to get into the truck and unload, the supervisor said, “Good.” The court finds that any dangers associated with the use of a ladder were obvious to both Skiles and Jack-in-the-Box. Nevertheless, the court holds that Skiles produced more than a scintilla of evidence showing Jack-in-the-Box owed a duty to warn. Given Skiles’ extensive experience, the court concludes that Jack-in-the-Box owed no duty to provide Skiles with training on the use of a ladder or inform him of the safety valve on the trailer. Finally, the court finds that Jack-in-the-Box did not require its drivers to use ladders to unload food product. Thus, any dangers associated with using a ladder to unload food product did not constitute dangers incident to Skiles’ work. Consequently, the court holds that Skiles failed to produce evidence showing Jack-in-the-Box owed a duty to establish and enforce safety policies. The court next addresses whether Skiles offered evidence that Jack-in-the-Box breached either of the duties it owed him. Skiles claims Jack-in-the-Box breached its duty to provide safe instrumentalities because it failed to adequately maintain its lift gates. The only support for Skiles’ contention is a general and conclusory allegation in his affidavit. The court finds that Skiles’ evidence constitutes less than a scintilla of evidence because it does nothing more than create a mere surmise or suspicion as to whether Jack-in-the-Box failed to adequately maintain its lift gates. Skiles also claims Jack-in-the-Box breached its duty to provide safe instrumentalities because it failed to provide him with a functioning lift gate on the day of his injury. The court finds that Skiles satisfied his burden by producing more than a scintilla of evidence as to whether Jack-in-the-Box failed to provide him with a functioning lift gate on the day of his injury. As to Skiles’ claim that Jack-in-the-Box breached its duty to warn, the court concludes that Skiles met his burden to provide more than a scintilla of evidence. The court concludes that therefore Skiles satisfied his burden as to two of his breach of duty claims, and next considers whether Skiles produced evidence showing his injury was proximately caused by Jack-in-the-Box’s breach. Skiles contends there is a logically traceable connection between using a ladder to jump over the lift gate and the “popping” and “pain” in his knees. The court finds that Skiles’ use of a ladder and jumping over the lift gate was attributable to Jack-in-the-Box’s failure to warn Skiles that his intended use of a ladder was unsafe. Because Skiles produced more than a scintilla of evidence connecting Jack-in-the-Box’s breach to his injury, the court concludes the trial court erred when it granted Jack-in-the-Box’s no-evidence motion for summary judgment. OPINION:Lang, J.; Richter, Lang and Bridges, JJ.

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