Kline v. Gemini Transp.
United States District Court for the Southern District of Indiana, Indianapolis Division
June 22, 2018, Decided; June 22, 2018, Filed
Case No. 1:17-cv-00353-TWP-DLP

Reporter
2018 U.S. Dist. LEXIS 104440 *
MATTHEW KLINE and MARK KLINE, Individually and on behalf of minor HAYDEN KLINE, Plaintiffs, v. GEMINI TRANSPORT, LLC, AMARILDO ZERE, FEDEX GROUND PACKAGE SYSTEM, INCORPORATED, and DELBERT E. LALLATHIN, JR., Defendants.
Core Terms

truck, summary judgment motion, tractor-trailer, speculation, driving, Reply, collided, injuries, whiteout, struck, proximate cause, Supplemental, vehicles, parties, speed, summary judgment, left lane, trailer, defeat, median, oral argument, conditions, southbound, undisputed, swerve, front, scene, rear, material fact, Interstate
Counsel: [*1] For MATTHEW KLINE, MARK KLINE, Individually and on behalf of minor Hayden Kline, Plaintiffs: Joshua Leizerman, Michael J. Leizerman, E.J. LEIZERMAN & ASSOCIATES, Toledo, OH; Samuel W. Jarjour, Fort Wayne, IN.
For GEMINI TRANSPORT, LLC, AMARILDO ZERE, Defendants: David J. Yates, Eric P. Conn, Segal McCambridge Singer & Mahoney, Novi, MI; Robert D. Emmerson, DEFUR VORAN LLP, Fishers, IN.
For FEDEX GROUND PACKAGE SYSTEM, INCORPORATED, DELBERT E. LALLATHON, JR., Defendants: Anderson R. White, KOPKA PINKUS DOLIN PC (Carmel), Carmel, IN; James H. Milstone, KOPKA, PINKUS DOLIN PC, Carmel, IN; Kevin J. Plagens, KOPKA PINKUS DOLIN PLC, Farmington Hills, MI.
Judges: TANYA WALTON PRATT, United States District Judge.
Opinion by: TANYA WALTON PRATT
Opinion

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants FedEx Ground Package System, Inc. (“FedEx”) and Delbert E. Lallathin, Jr. (“Lallathin”) (collectively, “Defendants”) (Filing No. 78). Following a multi-vehicle car accident during a winter storm, Plaintiffs Matthew Kline and Mark Kline, individually and on behalf of his minor daughter Hayden Kline, (collectively, “Klines” or “Plaintiffs”) [*2] filed this negligence action against the Defendants as well as co-defendants Gemini Transport, LLC (“Gemini”) and Amarildo Zere (“Zere”). The Defendants filed their Motion for Summary Judgment, asserting that the evidence shows they did not breach a duty to the Klines and did not cause the Klines’ injuries or damages. Also before the Court is Defendants’ Motion for Leave to File Supplemental Reply in Support of F edEx Ground Package System, Inc.’s and Delbert E. Lallathin, Jr.’s Motion for Summary Judgment, (Filing No. 93), and Motion for Hearing on Motion for Summary Judgment, (Filing No. 106). For the following reasons, the Court grants the Motion for Summary Judgment and denies the remaining motions.

I. BACKGROUND
The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to the Klines as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
On February 14, 2015, Matthew Kline was driving southbound on Interstate 69 near Washington Township, Indianapolis, Indiana, with Mark Kline and Hayden Kline as passengers. Lallathin also was driving southbound on Interstate 69 in this same area, driving a FedEx tractor-trailer. Zere was driving a [*3] Gemini tractor-trailer in the same area, also heading southbound on Interstate 69 (Filing No. 1 at 2-4).
Lallathin was driving a tandem FedEx tractor-trailer. Although he had not previously encountered visibility issues while driving that day, Lallathin testified there was a sudden loss of visibility, which he referred to as a whiteout (Filing No. 79-4 at 10-11). The wind was blowing snow drifts, which reduced visibility, and the roads were slick (Filing No. 79-5 at 5-6; Filing No. 90-2 at 5). Lallathin emerged from the blinding whiteout condition in the road to see a tractor-trailer stopped in the roadway in front of him (Filing No. 79-4 at 7-9, 12). There were twenty-eight vehicles involved in an accident at this location (Filing No. 79-5 at 4).
Lallathin put on his flashing hazard lights and slowed his FedEx truck (Filing No. 79-4 at 10). He moved into the left lane in an attempt to avoid a collision. As he moved to the left, the rear trailer on his tandem tractor-trailer jackknifed, and his rear trailer struck another tractor-trailer stopped in the road. Lallathin did not strike any object with his tractor-trailer other than his rear trailer striking the stationary tractor-trailer. [*4] Id. at 8-9, 12-13. Lallathin’s truck came to a stop in the left lane and median of the highway (Filing No. 79-5 at 5, 7; Filing No. 90-2 at 7).
Soon thereafter, Zere approached the scene of the multi-vehicle accident while driving his Gemini tractor-trailer. He also was dealing with reduced visibility because of the whiteout conditions. He was able to see for a second and then the next second he was unable to see anything. Once he could see again, he was able to see only one to two truck lengths ahead of him. Zere’s truck was traveling in the right lane when it emerged from the whiteout conditions. When the whiteout cleared, Zere saw many vehicles involved in an accident stopped in front of him (Filing No. 79-5 at 5-7). Zere made a last second veer to the left in order for the right side of his tractor to absorb the impact of the collision. Zere made this maneuver also to prevent his tractor from crashing into two cars that had collided with the FedEx truck (Filing No. 90-3 at 3, 5). Lallathin’s FedEx truck was to the left of Zere’s truck when Zere veered to the left and collided with another truck (Filing No. 79-5 at 7).
When Zere’s truck collided with another stopped truck (not Lallathin’s FedEx truck), [*5] this collision caused Zere’s truck to slide to the right and collide with the Klines’ vehicle, which was forced off the roadway and into a ditch (Filing No. 79-5 at 7-8; Filing No. 90-5 at 3; Filing No. 1 at 2-4). The Klines sustained multiple injuries to their face, neck, head, and back (Filing No. 1 at 2). Zere did not collide with Lallathin’s FedEx truck. The FedEx truck did not come into contact with either Zere’s Gemini truck or the Klines’ vehicle (Filing No. 79-5 at 7-8; Filing No. 79-4 at 7-9). Zere acknowledged that Lallathin and the FedEx truck did not cause him to do, or not do, anything as he approached the accident scene. Zere simply was reacting to a large group of vehicles (Filing No. 79-5 at 10).
Matthew Kline acknowledged that he knows of no basis to say that Lallathin’s FedEx truck caused or contributed to their accident (Filing No. 79-6 at 4). Matthew Kline could not recall seeing Lallathin’s FedEx truck before the accident (Filing No. 90-5 at 3). Similarly, Mark Kline, who was a passenger in Matthew Kline’s vehicle, acknowledged that he knows of no basis to say that Lallathin’s FedEx truck caused or contributed to their accident, and he could not recall seeing the [*6] FedEx truck before the accident (Filing No. 79-7 at 3-5).
On August 31, 2016, the Klines filed their Complaint against Zere, Gemini, Lallathin, and FedEx, asserting claims of negligence and vicarious liability and requesting compensatory and punitive damages (Filing No. 1). Following discovery, on November 29, 2017, Lallathin and FedEx filed their Motion for Summary Judgment, arguing that the evidence has revealed that Lallathin and FedEx did not cause the Klines’ injuries and they did not breach any duty to the Klines (Filing No. 78).

II. SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 106 S.Ct. 1348 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party’s favor.” [*7] Zerante, 555 F.3d at 584 (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet this burden with conclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted).

III. DISCUSSION
In their Motion for Summary Judgment, Lallathin and FedEx argue [*8] that there are no facts to support a claim of negligence against them because the elements of breach and causation are lacking. They also have filed related motions, asking for leave to file a “supplemental reply” in support of their Motion for Summary Judgment and asking for oral argument on the Motion. The Court will first address the Motion for Summary Judgment and then turn to the related motions.

A. Motion for Summary Judgment
In order for the Klines’ negligence claims against the Defendants to proceed, the Klines must present evidence supporting each of the elements of a claim for negligence: (1) a duty was owed to the plaintiff by the defendant; (2) the defendant breached that duty by allowing conduct that fell below the applicable standard of care; and (3) compensable injury proximately caused by the defendant’s breach of duty. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). The Defendants assert that there is no evidence to support the elements of breach or causation.
The Klines alleged in their Complaint that Lallathin was negligent by striking Zere’s truck, which caused Zere to strike the Klines’ vehicle, which caused the Klines to be forced off the road and into a ditch. The allegations in the Complaint also claim that [*9] Lallathin was negligent by failing to operate his truck in a safe manner and in accordance with traffic laws. However, the Defendants assert, following discovery, it has become clear that these allegations in the Complaint are not correct. They point out that the testimony of the parties undisputedly establishes that Lallathin’s FedEx truck never struck and was never struck by Zere’s truck, and Lallathin’s truck never struck the Klines’ vehicle. The FedEx truck came to a complete stop before Zere arrived at the scene of the multi-vehicle accident in front of him. The Defendants reiterate that Zere never struck Lallathin’s truck, and Zere testified that he did not believe the presence of Lallathin’s truck affected anything he did.
The testimony of Zere and Lallathin is not contradicted by any other witness, including Matthew Kline and Mark Kline, who did not see Lallathin’s truck before the accident and who know of no reason to think that Lallathin’s truck caused or contributed to their accident. Defendants assert that there is no evidence to support the allegations in the Complaint that Lallathin failed to obey traffic laws or to obey traffic devices. Thus, they argue the evidence negates [*10] any basis to establish that Lallathin breached a duty to the Klines or that he caused their injuries. The Defendants further argue that this same evidence and line of reasoning negates any basis to support the Klines’ request for punitive damages because of “gross negligence”.
In response to the Motion for Summary Judgment, the Klines concede:
When Plaintiffs filed their complaint, the only facts known to them was what they personally saw or knew and the crash report produced by the police. …
During discovery, it became clear that the FedEx truck did not come into contact with the Gemini truck at all. The testimony of both Mr. Zere and Mr. Lallathin confirms this. It is also clear that the FedEx truck never struck Plaintiffs’ vehicle. On these facts Plaintiffs agree with FedEx and Lallathin (though Plaintiffs do not necessarily agree with all the facts identified in their motion for summary judgment). Plaintiffs, essentially, agree that FedEx and Lallathin were not proximate causes of Plaintiffs’ injuries. …
(Filing No. 89 at 1-2.)
Co-defendants Zere and Gemini oppose Lallathin’s and FedEx’s Motion for Summary Judgment. They assert that the following material facts create a dispute [*11] that precludes summary judgment:
1. Whether Delbert Lallathin breached his duty and operated his tractor-trailer units too fast for existing weather and road conditions resulting in him striking a stationary tractor-trailer unit and blocking the left lane, shoulder and median of southbound I-69.
2. Whether Delbert Lallathin’s blocking of the left lane, shoulder and median of southbound I-69 eliminated the potential “out” for Amarildo Zere to take evasive action.
3. Whether Delbert Lallathin’s blocking of the left lane, shoulder and median of southbound I-69 and removing Zere’s “out” to take evasive action was a proximate cause of the subject accident.
4. Whether Zere’s trailer unit slid to the right following impact with the stopped vehicle or whether the Klines struck Zere’s unit from the rear.
(Filing No. 90 at 2-3.)
Zere and Gemini argue there is a dispute regarding whether Lallathin operated his FedEx truck in a reasonable and lawful manner because he struck a stationary truck on the interstate in adverse weather conditions. They assert that, if this conduct is not a breach of the general duty owed to other motorists, then this argument also should apply to Zere because he struck the [*12] same stationary truck only moments later. Zere and Gemini also assert that testimony shows Lallathin passed Zere at some point before the accident, thus raising an issue as to Lallathin’s speed.
Regarding causation, Zere and Gemini argue that Lallathin’s and FedEx’s argument is flawed because there is no requirement that there be physical contact between Lallathin’s FedEx truck and Zere’s truck for proximate cause to be attributed to Lallathin. They argue that Zere’s testimony establishes he purposely drove the right front of his tractor into the left rear of the stationary trailer in order to absorb the impact rather than driving into the two vehicles which had just run into the FedEx truck which was blocking the left lane, left shoulder, and median. Zere and Gemini argue that if the FedEx truck had not been there, a jury could reasonably conclude that Zere could have veered left just as the FedEx truck did, but Lallathin had eliminated this option by blocking everything from the middle of the interstate to the median barrier.
Zere and Gemini assert that Lallathin’s actions led directly to the actions taken by Zere, which the Klines allege caused their accident. They assert that they [*13] “believe there was no negligence on behalf of any of the parties in this unfortunate whiteout incident involving nearly 30 vehicles,” but the evidence is clear that to the extent there was negligence, “a jury should be able to assess the actions of FedEx, Lallathin, Gemini, Zere and the Klines as the actions of all of them occurred within moments of each other and as a consequence of the actions of each of them.” (Filing No. 90 at 10.)
In their Reply Brief, the Defendants note that the Plaintiffs agree that FedEx and Lallathin are not the proximate cause of their injuries, and when the Plaintiffs filed their Statement of Claims after the summary judgment motion had been filed, they did not include any claims against FedEx and Lallathin (see Filing No. 86). FedEx and Lallathin point out that facts of what actually happened are undisputed. In Zere’s deposition testimony he admitted that Lallathin did not cause him to do anything —
Q Was any of the FedEx tractor or trailer in the right-hand lane that you were traveling in?
A No.
Q Did the actions of the FedEx vehicle make you do or not do anything as you were approaching the accident scene?
A No.
(Filing No. 79-5 at 10).
Regarding Zere’s and [*14] Gemini’s assertion that there is a factual issue about Lallathin’s speed, the Defendants argue that Zere testified he was not sure whether the FedEx truck that passed him was the same FedEx truck driven by Lallathin, and such speculative testimony cannot defeat a motion for summary judgment (see Filing No. 91-1 at 6-7). They also contend that, pursuant to Federal Rule of Evidence 404(b), such speculative testimony of speeding cannot be used to show a person’s character and later action in conformity therewith. They assert that Zere and Gemini may not argue that five minutes before the accident Lallathin passed Zere, so he must have been driving too fast for the weather conditions at the time of the accident.
FedEx and Lallathin argue that Zere’s and Gemini’s four paragraphs of “material issues of fact” are not actually material and are not based in the evidence in light of Zere’s testimony that Lallathin did not cause him to do or not do anything. The idea that Zere was “deprived of a potential out” is a speculative and creative argument crafted by Zere’s attorney. The facts reveal that Lallathin and FedEx did not cause the Klines’ injuries.
“Whether a particular act or omission amounts to a breach . . . is generally [*15] a question of fact for the jury.” Devereux v. Love, 30 N.E.3d 754, 763 (Ind. Ct. App. 2015). Additionally, “proximate cause is generally a question of fact.” Bunger v. Brooks, 12 N.E.3d 275, 282 (Ind. Ct. App. 2014). However, the Court notes that “breach can become a question of law where the facts are undisputed and only a single inference can be drawn therefrom,” Devereux, 30 N.E.3d at 763, and proximate cause “becomes a question of law where only a single conclusion can be drawn from the facts.” Bunger, 12 N.E.3d at 282.
The facts of what actually occurred in this case are undisputed. Lallathin came upon the scene of a multi-vehicle accident and became aware of it suddenly when he emerged from a snowy, whiteout condition. To avoid colliding with a stopped tractor-trailer, Lallathin swerved to the left and his rear trailer jackknifed and hit the stopped tractor-trailer. Lallathin’s FedEx truck came to rest in the left lane, left shoulder, and median. Thereafter, Zere came upon the scene of the accident. The whiteout conditions also inhibited Zere’s vision. He was driving in the right lane, and Lallathin’s FedEx truck was to his left. When he suddenly became aware of the stopped vehicles in front of him, Zere also swerved to the left. He also collided with the other stopped tractor-trailer. This collision caused Zere to slide to the right and [*16] collide with the Klines’ vehicle, which was then forced off the roadway and into a ditch. Zere did not collide with Lallathin’s FedEx truck and Lallathin’s truck did not come into contact with Zere’s truck or the Klines’ vehicle.
Zere’s and Gemini’s alleged disputed material facts are based on speculation and conjecture rather than on the evidence. And speculation and conjecture cannot defeat a summary judgment motion. Dorsey, 507 F.3d at 627. They argue that Lallathin’s conduct was a proximate cause to the Klines’ injuries because he took away the “potential out” for Zere to swerve to the left and avoid the collision with the other stopped tractor-trailer and the Klines. This argument is not based in factual evidence of what actually happened but rather is a highly speculative suggestion of what Zere might have been able to do or what he possibly could have done differently. This contention is not sufficient to defeat a summary judgment motion.
Also fatal to this argument is the fact—supported by the undisputed evidence—that Zere actually did swerve to the left when confronted with the stopped vehicles in front of him. Counsel argues that Lallathin’s conduct proximately caused the damage because Lallathin [*17] took away the “potential out” for Zere to swerve to the left, yet Zere did swerve to the left and still collided with the stopped tractor-trailer and the Klines’ vehicle.
The argument that there is a dispute whether Lallathin was speeding and driving in an unreasonable and unsafe manner also is unavailing. Zere’s and Gemini’s evidence is simply their personal speculation that Lallathin was speeding at the time of the accident because, at some earlier time, Lallathin may have passed Zere on the road. However, this speculation cannot defeat summary judgment. Importantly, Zere’s own testimony suggests that the driver of the FedEx truck was not speeding when a FedEx truck (possibly driven by Lallathin) passed Zere. He testified,
Q Do you know how fast the FedEx truck was going when it passed you?
A He was under the limit.
Q Under the speed limit?
A Oh, yeah, he was under it, because I was slower than the speed limit.
(Filing No. 91-1 at 5).
Zere’s and Gemini’s opposition to summary judgment is based on speculation and immaterial assertions, not material disputes of fact. The undisputed evidence of facts points to only one conclusion—the Klines’ injuries were not caused by a breach of a duty by [*18] Lallathin or FedEx. The Plaintiffs themselves agree that Lallathin and FedEx “were not proximate causes of Plaintiffs’ injuries.” (Filing No. 89 at 2.) The Plaintiffs in fact dropped their claims against Lallathin and FedEx from their Statement of Claims (Filing No. 86). Interestingly, Zere and Gemini also asserted that they “believe there was no negligence on behalf of any of the parties in this unfortunate whiteout incident involving nearly 30 vehicles.” (Filing No. 90 at 10.)
The negligence claims asserted against Lallathin and FedEx are appropriately disposed of at the summary judgment stage because the undisputed evidence shows the elements of the claims cannot be established.

B. Motion to File Supplemental Reply and Motion for Oral Argument
Lallathin and FedEx filed a Motion for Leave to File a Supplemental Reply (Filing No. 93) to support their summary judgment motion because the Plaintiffs provided an expert accident reconstruction report to the parties the day after Lallathin and FedEx filed their Reply Brief. They ask for leave to file a supplemental reply to address the expert report, which places no fault on them, since the report was not disclosed until after the Reply Brief [*19] was filed.
Zere and Gemini respond that leave should not be granted to file a supplemental reply because the timing of the Plaintiffs’ expert witness disclosure complied with the case management deadlines. If a party intended to use expert testimony in connection with a dispositive motion, then such expert disclosures were required at least ninety days prior to the dispositive motions deadline. In this case, the dispositive motions deadline was December 13, 2017, meaning that if expert testimony was going to be used in connection with a motion for summary judgment, it had to be served by September 14, 2017. But the expert testimony that FedEx and Lallathin attempt to present was not served until January 12, 2018. Zere and Gemini argue that using this expert report would be contrary to the case management plan.
The Court agrees that, in the interest of justice and to comply with the parties’ agreed upon case management plan, the Motion for Leave to File a Supplemental Reply (Filing No. 93) is denied.
Lallathin and FedEx also filed a Motion for Oral Argument on the Motion for Summary Judgment (Filing No. 106). The parties more than adequately addressed the issues in their written briefs, [*20] and in light of the Court’s determinations above, oral argument is not necessary to resolve the summary judgment motion. Accordingly, the Motion for Oral Argument is denied.

IV. CONCLUSION
For the reasons stated above, FedEx and Lallathin’s Motion for Summary Judgment is GRANTED (Filing No. 78), and judgment is entered in their favor. The Clerk is instructed to terminate FedEx and Lallathin as defendants in this action. The Motion for Leave to File a Supplemental Reply (Filing No. 93) and Motion for Oral Argument (Filing No. 106) are DENIED. No partial final judgment will be issued at this time, instead, final judgment will be made upon conclusion of all claims in this action. In addition, the Clerk is directed to update the docket to reflect the correct spelling of Defendant Delbert E. Lallathin, Jr.’ s name as noted in Filing No. 79-4.
The Klines’ claims against Gemini and Zere may proceed to trial.
SO ORDERED.
Date: 6/22/2018
/s/ Tanya Walton Pratt
TANYA WALTON PRATT, JUDGE
United States District Court
Southern District oflndiana

2018 WL 2460303

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas,
Eastland.
DIANA GODINES, INDIVIDUALLY AND ON BEHALF OF AMANDO GODINES, SR., DECEASED; MICHAEL GODINES; AMANDO GODINES, JR.; AND DEANNA QUITUGUA, Appellants
v.
PARSLEY ENERGY OPERATIONS, LLC, Appellee
No. 11-16-00139-CV
|
Opinion filed May 31, 2018
On Appeal from the 238th District Court Midland County, Texas
Trial Court Cause No. 52258
Panel consists of: Willson, J., Bailey, J., and Wright, S.C.J.9

MEMORANDUM OPINION
MIKE WILLSON JUSTICE
*1 Amando Godines, Sr., an employee of Precision Drilling Company, L.P., died in an accident at a Parsley Energy Operations, LLC’s well site named “Hall 11-4.” After Godines’s death, his wife, Diana Godines, individually and on behalf of her husband, and Godines’s biological children (collectively Appellants) brought suit against Parsley for negligence and gross negligence.

Parsley answered and filed a hybrid no-evidence and traditional motion for summary judgment. On no-evidence grounds, Parsley asserted that no evidence existed that it owed any legal duty to Godines and that Appellants could not establish the subjective and objective elements of gross negligence. On traditional grounds, Parsley asserted that it owed no legal duty to Godines and that, as a “property owner,” Parsley was immune from liability pursuant to Chapter 95 of the Civil Practice and Remedies Code.1

The trial court granted Parsley’s motion on both no-evidence and traditional grounds. Appellants appeal the trial court’s grant of summary judgment in Parsley’s favor. We affirm.

I. Summary Judgment Evidence
At the time of the incident, Parsley owned the mineral interest at Hall 11-4. In order to produce the minerals, Parsley contracted with Precision under an “International Association of Drilling Contractors Drilling Bid Proposal and Daywork Drilling Contract” to be its drilling contractor. The drilling contract required Precision to initially drill at Parsley’s other well site, “JRS Farms 24A-3,” and to furnish the rig for drilling—Rig 305. Eventually, Precision was directed to begin drilling at Hall 11-4. It was necessary for Rig 305 to be transported from the previous well site to Hall 11-4, and based on the drilling contract, Parsley assumed the responsibility of transportation of Rig 305.

Parsley contracted with J.W. Mulloy to serve as the “company man.”2 Mulloy assigned Freddie Pontremoli to be one of the company man representatives. Pontremoli described his duties as:
Well, I — drill the wells. I tell the people on the — on the rig how to drill these wells. Like — per se like how much weight to run on the bit, how many RPM to turn the rotary table and how far we drill for each section to surface, intermediate and production stream. That’s my job.
Pontremoli also “agreed” to the following deposition questions:
Q: Okay. As a consultant for Parsley, what — it would be your duty and responsibility to make sure that locations are set up properly so you can get the rig set up, start drilling, get the drilling completed and then move on to the next site and just re-create that process from drill hole to drill hole to drill hole.
Q: Okay. And as the consultant, you would have to make sure that all those different contractors that are out there providing services to Parsley, that they move in concert and act in concert to get the drills completed and move on to the next well to drill?
Parsley contracted with Briley Trucking Company to fulfill that obligation. Briley provided “[a]ll equipment, materials and supplies” for the rig move. Precision, per the drilling contract, was required to help Briley with the “move in” and “move out” process, including “rig up” once the rig was transported to the well site.

*2 Rig 305 consists, in part, of a three-part telescoping mast. Briley transported the mast to the Hall 11-4 using the “two trucking” method. Under that method, the three parts of the mast were partially nested together and laid down horizontally on two trailers, each of which was connected to a semi-tractor. The crown section of the mast was nested inside the middle section, and the weight of the crown rested on a fifth wheel that was located on one of the trucks. Pins were used to hold the crown and middle section in place during transportation. The driver of one of the trucks drove in reverse, and the other drove forward; in this manner, they delivered the mast to the new well site.

A Briley employee, the “truck pusher,” suggested the two-trucking method. Roger Dean Moran, Precision’s rig superintendent, was in Alice, Texas, at the time but approved the two-trucking method by phone. Parsley’s drilling superintendents, Joey Sims and David Brandenburg, made no recommendations or determinations on how Rig 305 should be transported and did not supervise transportation or assembly of the rig.

The mast was safely transported to the Hall 11-4. Once it was there, Briley and Precision worked to set up the other components of Rig 305, particularly the substructure where the mast would be placed, with the ultimate goal of removing the mast from the tractor-trailers.

At some point, the Briley truck pusher received a call on his radio3 asking whether they were “ready to … open up the derrick.” The Briley truck pusher subsequently walked toward the mast and picked up a sledgehammer. Godines, who was nearby, then had a conversation with the truck pusher.4 After this conversation, Godines crawled underneath the mast and subsequently removed one of the pins from the mast with a sledgehammer. Normally, in this part of the operation, pole trucks or a crane are used to provide support for the mast while the pins are removed; here, no crane or pole truck was used to support the mast. When the one pin was removed, the pin on the opposite side of the mast fractured and a section of the mast shifted and fell. Godines was pinned between the fifth wheel on one of the trucks and the section that fell. Godines died as a result of the injuries that he suffered in the accident.

Pontremoli was the only “representative” of Parsley on site when Godines was fatally injured. He arrived about thirty minutes before the accident occurred and went to his trailer on site. At the time of the accident, Pontremoli was still in his trailer. Pontremoli did not know who gave the instruction to remove the mast pin.

II. Issues Presented
On appeal, Appellants raise eight issues. Appellant’s first issue is a global issue related to the summary judgment. In the next four issues, Appellants contest the application of Chapter 95. Appellants argue in their second issue that the trial court erred when it applied Chapter 95. They assert in their third, fourth, and fifth issues that, even if Chapter 95 applies, there is a genuine issue of material fact that pertains to the exception under Section 95.003 relating to Parsley’s control and actual knowledge, respectively. In their sixth and seventh issues, Appellants allege that there is evidence that raises a genuine issue of material fact on whether Parsley owed Godines a legal duty. In Appellants’ eighth issue, they claim there is evidence that raises a genuine issue of material fact on their gross negligence claim.

III. Standards of Review
*3 We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Wal–Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). We review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Id. A defendant who moves for traditional summary judgment must either negate at least one essential element of the nonmovant’s cause of action or prove all essential elements of an affirmative defense. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiffs to present evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). To determine if a fact question exists, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005). If differing inferences may reasonably be drawn from the summary judgment evidence, a summary judgment should not be granted. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).

IV. Analysis
We first address issue two: whether Chapter 95 applies in this case. Because we conclude it does not, we outline the threshold inquiry of duty and then address issues six, seven, and eight: whether the summary judgment evidence shows that Parsley owed a duty to Godines and whether the Godines family produced more than a scintilla of evidence that Parsley was grossly negligent.

A. Issue Two: Chapter 95 does not apply because Godines’ death did not arise from a condition or use of an improvement to real property.
Appellants argue that Chapter 95 does not apply in this case because Parsley failed to establish that Godines’ death arose from a condition or use of an improvement to real property. We agree. Parsley had the burden to prove Section 95’s applicability. Lopez v. Ensign U.S. Southern Drilling, LLC, 524 S.W.3d 386, 842 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Section 95.002 states that Chapter 95 only applies to claims against a “property owner” for a death “that arises from the condition or use of an improvement to real property, where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.” TEX. CIV. PRAC. & REM. CODE § 95.002. We note that Parsley as the owner of the mineral interest at Hall 11-4 established that it was a “property owner” within the meaning of Section 95.002. See Lopez, 524 S.W.3d at 843. However, Parsley failed to establish that Godines’ death arose “from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs.” Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016); see Lopez, 524 S.W.3d at 845. Because Chapter 95 does not apply in this case, Parsley could not prevail on summary judgment on this ground.

B. The Threshold Inquiry on Duty
The threshold inquiry in a negligence case “is whether the defendant owes a legal duty to the plaintiff.” Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) (citing Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)). Appellants contend that “Parsley owed Mr. Godines a duty to exercise reasonable care to establish and maintain a workplace free of recognized hazards and provide overall safety leadership for contractors on its worksite, including monitoring the performance of those it hired … and to prevent open and obvious dangers.” Appellants further argue that this duty arises from Parsley’s retention and control over work operations and its contractors at the well site. Parsley, in contrast, argues that it had no duty to supervise the activities of its contractors to ensure that they acted in a nonnegligent manner. In this case, we must determine whether Parsley, a premises owner and a general contractor,5 owes one of its independent contractor’s employees a legal duty and, if so, the extent of that duty. In general, “the duties owed by premises owners and general contractors to employees of an independent contractor are the same.” Shell Oil Co. v. Khan, 138 S.W.3d 288, 291–92 (Tex. 2004) (citing Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex. 1999)); see Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

*4 In general, “a premises owner does not have a duty to ensure that an independent contractor safely performs his work.” Koch, 11 S.W.3d at 155 (citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)). However, a premises owner or general contractor may incur a duty if it retains “some control over the manner in which the independent contractor’s work is performed.” Hoechst–Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (quoting Redinger, 689 S.W.2d at 418). Texas has adopted Section 414 of the Restatement (Second) of Torts, which contains this provision:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
RESTATEMENT (SECOND) OF TORTS § 414 (1965); see Redinger, 689 S.W.2d at 418 (adopting Section 414). This means that “[w]hen the premises owner retains some control over the independent contractor’s work, it must exercise that control with reasonable care.” Koch, 11 S.W.3d at 155. To assume that duty, however, the control must be over the methods or the operative details of the independent contractor’s work, and “[t]here must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Mendez, 967 S.W.2d at 356 (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmts. a, c).

C. Issues Six and Seven: Because Parsley did not retain contractual or actual control over the workplace operations or workplace safety, it owed no duty to Godines.
Appellants argue that Parsley owed a duty because Parsley retained control over work operations and its contractors at the well site. Parsley, in contrast, argues that it had no duty to supervise the activities of its contractors to ensure that they acted in a nonnegligent manner.

1. Appellants have failed to adduce evidence that raised a question of material fact that Parlsey exercised or retained contractual or actual control over the injury-producing activity.
There must be a “nexus between an employer’s retained supervisory control and the condition or activity that caused the injury.” Id. at 357; Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). In this case, Godines died when he removed one of the pins on the mast. Thus, the injury-producing activity in this case was assembly of the rig. Appellants maintain, however, that the use of the two-trucking method created the condition on Parsley’s property—an unsupported mast suspended between two trucks—that proximately caused Godines’s death. Evidence in the record indicates that, absent the two-trucking method, Godines would not have needed to remove the pins from the mast; therefore, in our assessment of Parsley’s control, we also consider whether Parsley exercised control over the method or operative details of transportation of the rig. See Joeris General Contractors, Ltd. v. Cumpian, 531 S.W.3d 187, 200 (Tex. App.—San Antonio 2016, pet. filed) (indicating that case law “require[s] that the general contractor’s control directly affect, cause, or relate to the complained-of injuries” (citing Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001); Hagins v. E–Z Mart, 128 S.W.3d 383, 390–91 (Tex. App.—Texarkana 2004, no pet.))).

*5 The issue then becomes whether Parsley exercised control over the method or operative details of transportation or assembly of the rig. Control may be proven in two ways: (1) “by evidence of a contractual agreement that explicitly assigns the premises owner a right to control” and (2) “by evidence that the premises owner actually exercised control over the manner in which the independent contractor’s work was performed.” Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002).

2. Contractual control is lacking.
Appellants point to various provisions in the drilling contract between Precision and Parsley to show that Parsley exercised the requisite control to owe Godines a duty. Determining whether a contract vests control is a question of law. Id.; see Elliott-Williams, 9 S.W.3d at 804 (“Contract construction is a matter of law for the trial court.”). We conclude as a matter of law that the drilling contract does not vest Parlsey with the requisite control to owe Godines a legal duty.

Appellants point out that Parsley contractually retained “the right to designate the points at which casing will be set and the manner of selling, cementing, and testing.” Next, they rely on provisions that show Parsley was required “to maintain the road and location in such a condition that will allow free access and movement to and from the drilling site,” to “prepare a sound location adequate in size and capable of properly supporting the drilling rig,” and to be “responsible for a casing and cementing program adequate to prevent soil and subsoil wash out.” To the extent that these provisions vest Parsley with control over Precision,6 this control is unrelated to the injury-producing condition or activity in this case. See Mendez, 967 S.W.2d at 357 (requiring a nexus between the supervisory control and the condition or activity that caused the injury). These provisions do not indicate that Parsley contractually retained the right to control the method or operative details of transportation or assembly of the rig.

Appellants further point to the drilling contract to evidence Parsley’s control. They argue that the following provision shows Parsley’s contractual control: “Except for such obligations and liabilities specifically assumed by [Precision Drilling], [Parsley] shall be solely responsible and assumes liability for all consequences of operations by both parties on a Daywork Basis, including results and all other risks or liabilities incurred in or incident to such operations.” We disagree with Appellants’ interpretation. This provision apportions obligations and liability between Precision and Parsley; it does not give Parsley a right to control the method or operative details of transportation or assembly of the rig. We decline to hold that this provision imposes a legal duty on Parsley. Cf. Elliot-Williams, 9 S.W.3d at 804–05 (construing a financial responsibility provision as not vesting control over the means, methods, or operative details of a contractor’s work).

Appellants also place emphasis on the fact that Parsley assumed the responsibility to furnish specific equipment, materials, and services relevant to work performed on the drilling site. Appellants, however, do not specify which equipment, materials, or services Parsley contractually agreed to furnish to show that Parsley retained the requisite control to create a legal duty. This court’s review of the agreement reveals that Parsley assumed the responsibility to provide various pieces of equipment and services, most of which relate to drilling. For transportation, Parsley was required to provide for and bear the cost of transporting Rig 305, and Precision was required to assist in transportation by arranging for the trucks and cranes. Although Parsley assumed the obligation of transporting the rig, Parsley contracted with Briley under a Master Service Agreement (MSA) to fulfill that obligation. Appellants presented no evidence that Parsley controlled the method or operative details of Briley’s work. Specifically, Appellants presented no evidence that Parsley instructed Briley to use the two-trucking method or to begin removing the pins from the mast.

3. Contractual control over safety responsibilities also is lacking.
*6 Appellants argue that, because Parsley assumed safety responsibilities in the drilling contract, Parsley owed a duty to Godines. A premises owner who imposes safety requirements on its independent contractors owes a “narrow duty of care.” Mendez, 967 S.W.2d at 357. The premises owner owes a duty that any safety requirements and procedures that are promulgated do not “unreasonably increase, rather than decrease, the probability and severity of injury.” Id. at 358. The drilling contract states that “Operator agrees to comply with all Contractor’s safety requirements.” “Operator” under the agreement is Parsley, and “Contractor” is Precision. Contrary to Appellants’ interpretation, Parsley contractually agreed to comply with Precision’s safety requirements; accordingly, Parsley did not assume a limited duty based on this provision. Appellants also point out that Parsley contractually retained the right to pay safety bonuses to Precision’s employees. However, based on the Texas Supreme Court’s opinion in Bright, such a provision does not create a legal duty. See Bright, 89 S.W.3d at 609 (no duty imposed on premises owner where premises owner “had a Safety Incentive Program that rewarded contractors who had achieved certain safety milestones”). Having reviewed the evidence in the light most favorable to Appellants, we conclude, as a matter of law, that Parsley did not retain the degree of contractual control necessary to create a duty. We now address the next issue of whether Parsley asserted actual control over the injury-producing condition or activity.

4. Appellants assert that the testimony of Sims, Pontremoli, and Eduardo Quezado raised questions of material fact on Parsley’s actual control.
Appellants assert that Parsley exercised actual control over the direction and management of work on the drilling site and its contractors. Appellants point to Sims’s, Pontremoli’s, and Quezado’s deposition testimony as evidence of questions of material fact on Parlsey’s actual control. Appellants assert that Sims, Parsley’s drilling superintendent, exerted actual control. Appellants argue that Parsley supervised and asserted control because Pontremoli was Parsley’s company man. Appellants argue that Quezado, a Precision employee, exercised actual control, through Pontremoli, by rushing Precision and Briley to conduct rigging-up operations. In Sims’s, Pontremoli’s and Quezado’s situations, the summary judgment evidence, as we explain below, fails to raise a requisite question of material fact on actual control over the injury-producing condition or activity.

Sims testified by deposition (made a part of the summary judgment evidence) that Parsley retained ultimate authority over Hall 11-4 and its contractors. For example, Sims answered “yes” to the following deposition questions: Parsley “exercised ultimate authority over the job site, right?”; “You agree Parsley Energy is responsible to direct and manage … the service companies that it hires?”; and Parsley “routinely did that on this job site, exercised its ultimate authority?” While this summary judgment evidence does indicate that Parsley retained broad authority over Hall 11-4 and its contractors, “[e]very premises owner must have some latitude to tell its independent contractors what to do, in general terms and may do so without becoming subject to liability.” Koch, 11 S.W.3d at 156 (citing Redinger, 689 S.W.2d at 418). Sims further testified in his deposition that Brandenburg, a Parsley drilling superintendent, had the authority to stop dangerous activity taking place on the well site and also had the authority to direct Pontremoli on how to stop or prevent the dangerous activity in the future. “While a duty may arise if an employer retains the power to forbid employees of its independent contractor from performing work in a dangerous manner, that duty does not arise unless the employer retains the right to control the independent contractor as to the methods or operative details of the work.” Howarton v. Minnesota Mining & Mfg., Inc., 133 S.W.3d 820, 825 (Tex. App.—Eastland 2004, no pet.).

Appellants do not contest that Pontremoli was an independent contractor or that Parsley did not directly communicate with and supervise Pontremoli through Parsley’s drilling superintendent, Brandenburg. Pontremoli was an independent contractor for Parsley, who had originally contracted with Mulloy to serve as its company man under the terms of an MSA; Mulloy, in turn, assigned Pontremoli to Parsley. Pontremoli was paid by Mulloy, and Parsley paid Mulloy for Pontremoli’s services. Parsley and Pontremoli had no direct contract, and according to Pontremoli’s testimony, he operated under an oral employment agreement with Mulloy.

*7 Parsley delegated to Pontremoli authority over the well site and over Parsley’s other contractors. Specifically, Parsley delegated to Pontremoli the authority to (1) stop a contractor trucking company’s activities if it was doing something contrary to Parsley’s expectations; (2) pick contractors for rig transportation; (3) ensure safety checks were being conducted by Precision before drilling commenced; (4) ensure rigging-up operations were done in a safe manner consistent with all laws and regulations; and (5) direct and control the activities of the contractors on the well site. But to show Parsley was acting through Pontremoli,7 Appellants rely on summary judgment evidence that Parsley delegated authority to Pontremoli over the well site and over Parsley’s other contractors. From this delegation of authority, Appellants assert that Parsley assumed a duty to Godines to provide a safe workplace under Section 414 of the Restatement (Second) of Torts. None of this delegated authority, however, shows that Parsley controlled the method or operative details of the injury-producing condition or activity.

Even though Parsley gave Pontremoli the power to stop and start Briley’s work, “stop and start” authority does not trigger the rule of liability under Section 414 of the Restatement (Second) of Torts. See RESTATEMENT (SECOND) OF TORTS § 414 cmt. c. In addition, even though Pontremoli had the authority to hire contractors for rig transportation—and did in fact arrange for Briley to move Rig 305—that does not mean that Briley was not free to transport the rig in any way that it saw fit.8 See id. No evidence was adduced that Pontremoli instructed Briley to use the two-trucking method. And, even though Parsley required Pontremoli to ensure safety checks were being conducted, this is no evidence that Parsley exercised control. See Bright, 89 S.W.3d at 608 (no actual exercise of control even though the general contractor required its safety representative to conduct a pre-job safety conference and on-site inspection with the contractor before allowing work to commence); see also Koch, 11 S.W.3d at 155–57.

Furthermore, the fact that Parsley required its company man to ensure that rigging-up operations were done safely and in compliance with all laws is also not evidence of actual control by Parsley. See Koch, 11 S.W.3d at 156 (testimony that suggested the premises owner would make sure its independent contractor’s work was being done in a safe manner was not evidence of actual control by the premises owner); see also Bright, 89 S.W.3d at 607. Moreover, the fact that Parsley expected its company man to direct its contractors is not evidence that any direction or orders were actually given to Precision or Briley on the day of the rig move. This only shows that Pontremoli could have ordered Precision or Briley to do something. See Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999) (“A possibility of control is not evidence of a ‘right to control’ actually retained or exercised.”). None of Appellants’ summary judgment evidence raises a question of material fact that Pontremoli exercised the control vested in him on the day of the accident. Appellants did not produce evidence that Pontremoli approved of the two-trucking method or instructed Precision or Briley to transport the rig using the two-trucking method. Appellants also did not produce evidence that Pontremoli instructed Briley or Precision to begin removing the mast from the semi-tractors.

Finally, Appellants argue that Parsley’s company man, Pontremoli, exercised actual control by rushing Precision and Briley to conduct rigging-up operations. Quezado testified that Pontremoli “was rushing all of us” and the “truck drivers” on the day of the accident. When asked how the company man was rushing them, Quezado stated that “[i]t wasn’t directly to us” but that “he would just come out and say[,] I need you to do this or do that,” and “he said it loud enough where we could all hear him.”

*8 But this testimony does not show that Pontremoli gave specific instructions or orders to Precision and Briley about assembling the rig or removing the pins from the mast. See Painter v. Momentum Energy Corp., 271 S.W.3d 388, 406–07 (Tex. App.—El Paso 2008, pet. denied) (on-site consulting company did no assert actual control over the injury-producing activity through independent-contractor company man because company man did not give “any instruction over the operative details of laying down of the blowout preventer and the rotating head”); cf. Lee Lewis Constr., 70 S.W.3d at 784; GSF Energy, LLC v. Padron, 355 S.W.3d 700, 706–08 (Tex. App.—Houston [1st Dist.] 2011, pet. denied); Pena v. TXO Prod. Corp., 828 S.W.2d 188, 190–91 (Tex. App.—Corpus Christi 1992, no writ). “Every premises owner must have some latitude to tell its independent contractors what to do, in general terms, and may do so without becoming subject to liability.” Koch, 11 S.W.3d at 156.

Appellants do not direct this court to any instances where Parsley actually exercised its broad authority over the well site and its contractors. Specifically, they provide no evidence that Parsley instructed Briley or Precision to use the two-trucking method or directed Briley or Precision employees to begin removing the pins from the derrick. Having reviewed the evidence in the light most favorable to the Godines family, we conclude that Parsley established as a matter of law that it owed no duty to Godines and that the Godines family failed to bring forth more than a scintilla of evidence that raised a question of material fact that Parsley actually asserted control over the injury-producing condition or activity.

5. Appellants’ expert testimony does not raise a question of material fact on duty.
Appellants rely on their oil field and workplace safety experts to show Parsley’s legal duty. Appellants argue that their first expert, John P. Hughett, shows that Parsley’s legal duty to provide a safe workplace arises from custom in the oil and gas industry. Next, Appellants rely on their second expert, Gary S. Nelson, to argue that OSHA standards establish Parsley’s legal duty to Godines. Parsley argues that Appellants “cannot offer expert testimony to meet their burden of establishing that Parsley had a legal duty.” We agree with Parsley. Determining whether there is a legal duty is not based on what is customary for operators in the oil and gas industry or on OSHA standards; it is based on the amount of actual or contractual control asserted by the premises owner or general contractor over the independent contractor. See Redinger, 689 S.W.2d at 418; see also Richard v. Cornerstone Constructors, Inc., 921 S.W.2d 465, 468 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (OSHA regulations do not expand a state’s common law duties (citing 29 U.S.C.A. § 653(b)(4)).

As we explained above, Parsley did not assert contractual or actual control over transportation or assembly of the rig—the injury-producing condition or activity in this case. Therefore, Parsley incurred no duty to Godines as a matter of law. Because we have concluded as a matter of law that Parsley incurred no duty, “expert testimony is insufficient to create a duty where none exists at law.” Nat’l Conven. Stores Inc. v. Matherne, 987 S.W.2d 145, 148–49 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 639 (Tex. App.—San Antonio 1993, no writ)). “[A]n expert is not competent to give an opinion or state a legal conclusion regarding a question of law because such question is exclusively for the court to decide and is not an ultimate issue for the trier of fact.” Id. (citing Dickerson v. DeBarbieris, 964 S.W.2d 680, 690 (Tex. App.—Houston [14th Dist.] 1998, no writ)); see Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998) (determining whether there is a legal duty is a question of law). Appellants’ experts provide no evidence that shows Parsley, through its employees or company man, instructed Briley or Precision to transport the rig using the two-trucking method or to begin removing the pins from the mast. Therefore, we decline to hold that Hughett’s and Nelson’s affidavits create a genuine issue of fact as to Parsley’s legal duty, and accordingly, we overrule issues six and seven.

D. Issue Eight: Because Parsley owed no legal duty to Godines, Appellants cannot establish gross negligence.
*9 In their eighth issue, Appellants allege that the evidence that they adduced raises a genuine issue of fact that Parsley was grossly negligent. Parsley argues that Appellants’ claim of gross negligence fails because they cannot show that Parsley owed a legal duty. Gross negligence is comprised of two elements—one objective and one subjective. Turner v. Franklin, 325 S.W.3d 771, 781 (Tex. App.—Dallas 2010, pet. denied) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22–23 (Tex. 1994)).

Appellants had the burden to produce more than a scintilla of evidence of the objective and subjective elements of gross negligence to defeat Parsley’s no-evidence motion for summary judgment. A party cannot, however, establish that an actor was grossly negligent in the absence of proving the actor was negligent under the ordinary standard. Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 949 (Tex. App.—Austin 1990, writ denied)); see Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993) (reiterating “that grossly negligent conduct must impose an objectively higher risk than ordinary negligence” (citing Williams v. Steves Indus., Inc., 699 S.W.2d 570, 573 (Tex. 1985))). Appellants failed to present more than a scintilla of evidence that Parsley owed Godines a legal duty and, thus, failed to carry their burden of producing more than a scintilla of evidence that Parsley was grossly negligent. Accordingly, we do not address Appellants’ gross negligence cause of action in further detail. See Salazar v. Ramos, 361 S.W.3d 739, 748 (Tex. App.—El Paso 2012, pet. denied); Wortham v. Dow Chemical Co., 179 S.W.3d 189, 201 n.16 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We overrule issue eight. In light of this court’s disposition of the second, sixth, seventh, and eighth issues, we also overrule Appellants’ global first issue.

V. Conclusion
The trial court did not err when it granted summary judgment in favor of Parsley.

VI. This Court’s Ruling
We affirm the judgment of the trial court.

All Citations
Not Reported in S.W.3d, 2018 WL 2460303

Footnotes

9
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.

1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 95.002–.003 (West 2011).

2
A company man is a term of common use in the oil and gas industry. Melvin Green, Inc. v. Questor Drilling Corp., 946 S.W.2d 907, 908 n.3 (Tex. App.—Amarillo 1997, no pet.). “[T]he term ‘company man’ does not refer definitively to either an employee or an independent contractor.” Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 90 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The Houston Court of Appeals referred to a “company man” as:
The representative of the oil company or operator on a drilling location. For land operations, the company man is responsible for operational issues on the location, including the safety and efficiency of the project. Even administrative managers are expected to respond to the direction of the company man when they are on the rig site.
Expro Americas, LLC v. Sanguine Gas Exploration, LLC, 351 S.W.3d 915, 918 n.1 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing Schlumberger Oilfield Glossary: Company Man, SCHLUMBERGER, http://www.glossary.oilfield.slb.com/en/Terms/c/company_man.aspx, (last visited Apr. 24, 2018).

3
Only Briley truck pushers used the radios.

4
The summary judgment evidence is in dispute as to whether the Briley truck pusher gave Godines the sledgehammer and instructed him to knock out the pins or whether Godines grabbed the sledgehammer from the truck pusher and knocked out the pins on his own accord. We “take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

5
Parsley owns the mineral interest at Hall 11-4 and was Precision’s general contractor.

6
See Painter v. Sandridge Energy, Inc., 511 S.W.3d 713, 721–22 (Tex. App.—El Paso 2015, pet. denied).

7
Appellants do not allege that Parsley is vicariously liable for Pontremoli’s actions—if any that would give rise to liability—under an agency theory.

8
A part of the summary judgment record shows that Pontremoli testified in his deposition that he arranged for the rig to be moved but that he did not tell “Precision how to move their rig or tell Briley how to.”