Whisenhunt v. Westrock Texas LP et al

Filing 32

AMENDED MEMORANDUM and ORDER granting 29 Motion for Summary Judgment. Defendants are entitled to judgment as a matter of law on Whisenhunt's premises liability and common law negligence claims. Signed by District Judge Marcia A. Crone on 9/16/22. (tkd, )

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UNITED STATES DISTRICT COURT

DERRAL WAYNE WHISENHUNT,
Plaintiff,
versus
WESTROCK, TEXAS, L.P., D/B/A
Westrock, and STEPHEN K. MORGAN,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:20-CV-296

AMENDED MEMORANDUM AND ORDER
Pending before the court is Defendant WestRock, Texas, L.P. (“Westrock”), and Stephen
K. Morgan’s (“Morgan”) (collectively, “Defendants”) Motion for Summary Judgment (#29) as
to Plaintiff Derral Wayne Whisenhunt’s (“Whisenhunt”) claims. Whisenhunt filed a response in
opposition to the motion (#30). Having considered Defendants’ motion, the submissions of the
parties, the record, and the applicable law, the court is of the opinion that the motion should be
granted.
I.

Background
At the time of the event giving rise to these proceedings, Whisenhunt worked as a truck

driver for Vegas Logging, delivering logs to WestRock’s facility, a paper mill in Evadale, Texas
(“Evadale paper mill”), as part of his employment. According to his deposition testimony,
Whisenhunt had delivered logs to the Evadale paper mill for about nineteen years, entering the
mill approximately four days per week, often on multiple occasions. According to the evidence,
when delivering logs at the Evadale paper mill, truck drivers are expected to assist with unloading
the logs from their trucks. After the truck driver parks his vehicle in the proper location, near the

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“stacker”—a large vehicle which is used to unload stacks of logs—he exits his vehicle and removes
the chains from the load of logs. Then, the truck driver stands in front of his truck where he can
maintain eye contact with the stacker operator, and helps guide the stacker into position. On
February 13, 2019, Whisenhunt arrived at the Everdale paper mill to deliver a truckload of logs.
After driving his truck through the wood yard to the unloading area, parking, and exiting his
vehicle, Whisenhunt acted as a “spotter” for Brian Cravy (“Cravy”), the stacker operator. After
guiding Cravy into position to pick up the logs with the stacker equipment, Whisenhunt walked
backwards and tripped over a stray log that was already in the yard. Cravy had not yet picked up
the logs on Whisenhunt’s truck when he witnessed Whisenhunt fall. Whisenhunt seeks recovery
for alleged physical, mental, and economic damages resulting from the incident.
Whisenhunt filed suit against the Defendants1 in the 1st Judicial District Court of Jasper
County, Texas. WestRock effected a “snap removal” of the case on July 8, 2022.2

1

Aside from alleging that Morgan is a citizen of Jasper County, Texas, and providing his address,
Whisenhunt’s Petition does not explain who Morgan is, what he does for a living, where he works, or what
he did or failed to do in connection with the events at issue in this lawsuit. In his response to Defendants’
Motion to Transfer Case, Whisenhunt identifies Morgan as the mill’s general manager. In his response
to Defendants’ Motion for Summary Judgment, Whisenhunt does not mention Morgan by name or title nor
does he assert, much less demonstrate, that Morgan played any role in the events giving rise to this
lawsuit, suggesting that he was fraudulently joined.
2

Snap removal is a process where a defendant removes a case to federal court based on diversity
jurisdiction before an additional defendant who would destroy complete diversity is properly served. See
Tex. Brine Co., L.L.C. v. Am. Arb. Ass’n, 955 F.3d 482, 485 (5th Cir. 2020). The Fifth Circuit has held
that snap removal by a diverse defendant is appropriate, even if complete diversity is destroyed, whenever
any codefendants who are citizens of the forum state have not been properly joined and served. Id.

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II.

Analysis
A.

Summary Judgment Standard

A party may move for summary judgment without regard to whether the movant is a
claimant or a defending party. See Union Pac. R.R. Co. v. Palestine, 41 F.4th 696, 703 (5th Cir.
2022); Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019); Apache
Corp. v. W&T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010). Rule 56(a) of the Federal Rules
of Civil Procedure provides that summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a); Union Pac. R.R. Co., 41 F.4th at 703; United Steel, Paper
& Forestry, Rubber Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. Anderson, 9 F.4th
328, 331 (5th Cir. 2021); Smith v. Harris County, 956 F.3d 311, 316 (5th Cir. 2020); Parrish,
917 F.3d at 378; Hefren v. McDermott, Inc., 820 F.3d 767, 771 (5th Cir. 2016). The party
seeking summary judgment bears the initial burden of informing the court of the basis for its
motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); MDK
Sociedad De Responsabilidad Limitada v. Proplant Inc., 25 F.4th 360, 368 (5th Cir. 2022);
Goldring v. United States, 15 F.4th 639, 644 (5th Cir. 2021); Playa Vista Conroe v. Ins. Co. of
the W., 989 F.3d 411, 417 (5th Cir. 2021); Jones v. United States, 936 F.3d 318, 321 (5th Cir.
2019). To warrant judgment in its favor, the movant “must establish beyond peradventure all of
the essential elements of the claim or defense.” Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298,
302 (5th Cir. 2020) (quoting Dewan v. M-I, L.L.C., 858 F.3d 331, 334 (5th Cir. 2017)); accord

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Access Mediquip L.L.C. v. UnitedHealthcare Ins. Co., 662 F.3d 376, 378 (5th Cir. 2011), cert.
denied, 568 U.S. 1194 (2013). At the summary judgment stage, the defendant “bears the burden
of proving each element of each affirmative defense by a preponderance of the evidence.” Petro
Harvester Operating Co., L.L.C. v. Keith, 954 F.3d 686, 697 (5th Cir. 2020) (citing Celotex
Corp., 477 U.S. at 322-23); cf. In re Taxotere (Docetaxel) Prod. Liab. Litig., 994 F.3d 704, 710,
(5th Cir. 2021).
“A fact issue is material if its resolution could affect the outcome of the action.” Hemphill
v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015) (quoting Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)), cert. denied, 578 U.S.
945 (2016); see MDK Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Lexon Ins. Co.,
Inc. v. Fed. Deposit Ins. Corp., 7 F.4th 315, 321 (5th Cir. 2021); Dyer v. Houston, 964 F.3d 374,
379 (5th Cir. 2020). “Factual disputes that are irrelevant or unnecessary will not be counted.”
Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)); accord Valencia v. Davis, 836 F. App’x 292, 296 (5th Cir. 2020); see
Dyer, 964 F.3d at 379; Parrish, 917 F.3d at 378. “An issue is ‘genuine’ if it is real and
substantial, as opposed to merely formal, pretended, or a sham.” Gerhart v. Barnes, 724 F.
App’x 316, 321 (5th Cir. 2018) (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481,
489 (5th Cir. 2001)), cert. denied, 139 S. Ct. 1239 (2019); accord Hudspeth v. City of Shreveport,
270 F. App’x 332, 334 (5th Cir. 2008); see Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir.
2019). Thus, a genuine dispute of material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Hefren, 820 F.3d at 771; accord MDK
Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Sanchez Oil & Gas Corp. v. Crescent

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Drilling & Prod., Inc., 7 F.4th 301, 309 (5th Cir. 2021); Dyer, 964 F.3d at 379; Tiblier, 743
F.3d at 1007. The moving party, however, “need not negate the elements of the nonmovants’
case.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014); see Savoy
v. Kroger Co., 848 F. App’x 158, 160 (5th Cir. 2021); Stout v. Vincent, 717 F. App’x 468, 470
(5th Cir. 2018) (citing Celotex Corp., 477 U.S. at 323).
Once a proper motion has been made, the nonmoving party may not rest upon mere
allegations or denials in the pleadings but must present affirmative evidence, setting forth specific
facts, to demonstrate the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322
n.3; see Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting FED. R. CIV. P. 56(e)); MDK
Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Clark v. CertainTeed Salaried Pension
Plan, 860 F. App’x 337, 340-41 (5th Cir. 2021); Acadian Diagnostic Labs., L.L.C. v. Quality
Toxicology, L.L.C., 965 F.3d 404, 410 (5th Cir. 2020); Smith, 956 F.3d at 316 (quoting James
v. State Farm Mut. Auto. Ins. Co., 743 F.3d 65, 68 (5th Cir. 2014)); Hassen v. Ruston La. Hosp.
Co., L.L.C., 932 F.3d 353, 356 (5th Cir. 2019). The court “should review the record as a
whole.” Black v. Pan Am. Labs., LLC, 646 F.3d 254, 273 (5th Cir. 2011) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)); see Hacienda Records, L.P. v.
Ramos, 718 F. App’x 223, 234 (5th Cir. 2018); City of Alexandria v. Brown, 740 F.3d 339, 350
(5th Cir. 2014). All the evidence must be construed in the light most favorable to the nonmoving
party, and the court will not weigh the evidence or evaluate its credibility. Reeves, 530 U.S. at
150; Seigler v. Wal-Mart Stores Tex., L.L.C., 30 F.4th 472, 476 (5th Cir. 2022); Batyukova v.
Doege, 994 F.3d 717, 724 (5th Cir. 2021); Lyons, 964 F.3d at 302; Nall, 917 F.3d at 340. The
evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all

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reasonable doubts resolved in his favor. Tolan v. Cotton, 572 U.S. 650, 651 (2014) (citing
Anderson, 477 U.S. at 255); Seigler, 30 F.4th at 476; Batyukova, 994 F.3d at 724; Lyons, 964
F.3d at 302; Hassen, 932 F.3d at 355.
Furthermore, the court’s obligation to draw reasonable inferences “does not extend so far
as to allow a wholly ‘unreasonable inference’ or one which amounts to ‘mere speculation and
conjecture.’” Mack v. Newton, 737 F.2d 1343, 1351 (5th Cir. 1984) (“[A]n inference would be
unreasonable if it would allow a jury to rest its verdict on mere speculation and conjecture.”
(quoting Bridges v. Groendyke Transp., Inc., 553 F.2d 877, 879 (5th Cir. 1977))); accord McGill
v. BP Expl. & Prod., Inc., 830 F. App’x 430, 432 (5th Cir. 2020); Batyukova, 994 F.3d at 724
(“‘Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation’ will not survive summary judgment.” (quoting Orr v.
Copeland, 844 F.3d 484, 490 (5th Cir. 2016))); Stearns Airport Equip. Co., Inc. v. FMC Corp.,
170 F.3d 518, 528 (5th Cir. 1999) (“If the [nonmoving party’s] theory is . . . senseless, no
reasonable jury could find in its favor, and summary judgment should be granted.” (quoting
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468-69 (1992)); Mills v. WarnerLambert Co., 581 F. Supp. 2d 772, 779 (E.D. Tex. 2008) (“[O]nly reasonable inferences in favor
of the nonmoving party can be drawn from the evidence.” (citing Eastman Kodak Co., 504 U.S.
at 469 n.14))). “Summary judgment may not be thwarted by conclusional allegations, unsupported
assertions, or presentation of only a scintilla of evidence.” Hemphill, 805 F.3d at 538 (citing
McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)); accord Allaudin v. Perry’s Rests.,
Ltd., 805 F. App’x 297, 299 (5th Cir. 2020); Acadian Diagnostic Labs., L.L.C., 965 F.3d at 410
(quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)); see Lujan

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v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); Heath v. Elaasar, 763 F. App’x 351, 354 (5th
Cir. 2019).
“Further, although courts view evidence in the light most favorable to the nonmoving
party, they give greater weight, even at the summary judgment stage, to the facts evidenced from
video recordings taken at the scene.” Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)); accord Valderas v. Lubbock, 937
F.3d 384, 388 (5th Cir.), cert. denied, 140 S. Ct. 454 (2019). “When opposing parties tell two
different stories, one of which is blatantly contradicted by video evidence, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of ruling on
a motion for summary judgment.” Valderas, 937 F.3d at 388-89 (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)). Nevertheless, when, despite the events in question being captured on
videotape, the events at issue remain unclear, the court must view the evidence in the light most
favorable to the nonmovant. Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013) (“The video
does not blatantly contradict Ramirez’s version of the facts; accordingly, we view the evidence in
the light most favorable to Ramirez.”); see Ross v. Burlington N. & Santa Fe Ry. Co., 528 F.
App’x 960, 964 (10th Cir. 2013) (“When parties present conflicting evidence at the summary
judgment stage, a court may rely on video footage to grant summary judgment if the recording
utterly discredits the opposing party’s version of the facts.”).
Summary judgment is mandated if the nonmovant fails to make a showing sufficient to
establish the existence of an element essential to his case on which he bears the burden of proof
at trial. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322; Lyons,

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964 F.3d at 302; Musser v. Paul Quinn Coll., 944 F.3d 557, 560 (5th Cir. 2019); Tiblier, 743
F.3d at 1007.
B.

Premises Liability
1.

Conditions on Premises

Although federal procedural rules govern summary judgment, the underlying claim in a
federal case based on diversity jurisdiction is governed by state substantive law. See Cimarex
Energy Co. v. CP Well Testing, L.L.C., 26 F.4th 683, 687 (5th Cir. 2022) (citing Gasperini v.
Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996)); Granados v. Wal-Mart Stores, Inc., 653 F.
App’x 366, 367 (5th Cir. 2016). Under Texas law, owners and occupiers of land can be held
liable for both negligent activities and conditions on their premises. Austin v. Kroger Tex. L.P.,
746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015);
accord United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017); Sampson v. Univ.
of Tex., 500 S.W.3d 380, 388 (Tex. 2016); see AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d
289, 293 (Tex. 2020) (quoting Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex.
2016)). As the Texas Supreme Court has explained:
[A] person injured on another’s property may have either a negligence claim or a
premises-liability claim against the property owner. When the injury is the result
of a contemporaneous, negligent activity on the property, ordinary negligence
principles apply. When the injury is the result of the property’s condition rather
than an activity, premises-liability principles apply.
United Scaffolding, Inc., 537 S.W.3d at 471 (quoting Occidental Chem. Corp., 478 S.W.3d at
644; accord Austin, 465 S.W.3d at 216 (“[W]hen a claim does not result from contemporaneous
activity, the invitee has no negligent-activity claim, and his claim sounds exclusively in
premises-liability.”).

“[N]egligent activity encompasses a malfeasance theory based on

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affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability
encompasses a nonfeasance theory based on the owner’s failure to take measures to make the
property safe.” Del Lago Partners, Inc., 307 S.W.3d at 776. “Recovery on a negligent activity
theory requires that the person have been injured by or as a contemporaneous result of the activity
itself rather than by a condition created by the activity.” Keetch v. Kroger Co., 845 S.W.2d 262,
264 (Tex. 1992); accord Austin, 746 F.3d at 196; United Scaffolding, Inc., 537 S.W.3d at 471;
Sampson, 500 S.W.3d at 388. Conversely, where the injury is caused by a condition created by
the activity, a plaintiff is limited to a premises defect theory of liability. Sampson, 500 S.W.3d
at 388.
The liability of an owner or occupier of land for injuries resulting from a dangerous
condition on the premises depends on the scope of the owner’s duty of care toward the plaintiff
as well as a determination that the duty was breached. Hillis v. McCall, 602 S.W.3d 436, 440
(Tex. 2020); Wilson v. Nw. Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 849 (Tex.
App.—Amarillo 2019, no pet.). The relationship between the plaintiff and the landowner is a
material factor in determining the degree of care that is required. Cath. Diocese of El Paso v.
Porter, 622 S.W.3d 824, 829 (Tex. 2021); Hillis, 602 S.W.3d at 440; Wilson, 576 S.W.3d at 849.
The required degree of care varies depending upon the legal status of the plaintiff—whether he was
an invitee, a licensee, or a trespasser on the premises. Cath. Diocese of El Paso, 622 S.W.3d at
829; Hillis, 602 S.W.3d at 440; Wilson, 576 S.W.3d at 849.
2.

Duty to Invitee

The owner or operator of property owes the highest degree of care to an invitee. Nieman
v. City of Dallas, 3:14-CV-3897-M BF, 2015 WL 4997750, at *4 (N.D. Tex. Aug. 19, 2015);

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Garcia v. Wal-Mart Stores Tex., L.L.C., No. CIV. A. M-12-110, 2012 WL 6691131, at *4 (S.D.
Tex. Dec. 21, 2012) (citing Knorpp v. Hale, 981 S.W.2d 469, 471 (Tex. App.—Texarkana 1998,
no pet.)); Cath. Diocese of El Paso, 622 S.W.3d at 829. “An invitee is one who enters the
property of another with the owner’s knowledge and for the mutual benefit of both.” Cath.
Diocese of El Paso, 622 S.W.3d at 829 (quoting Austin, 465 S.W.3d at 202); accord Nieman,
2015 WL 4997750, at *4; Daniels v. Allsup’s Convenience Stores, Inc., 604 S.W.3d 461, 466
(Tex. App.—Amarillo 2020, pet. denied). In the instant case, the parties do not dispute that
Whisenhunt qualifies as an invitee for purposes of a premises liability claim.
“Under Texas law, ‘[g]enerally, premises owners . . . have a duty to protect invitees from,
or warn them of, conditions posing unreasonable risks of harm if the owners knew of the
conditions or, in the exercise of reasonable care, should have known of them.’” McCarty v.
Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th Cir. 2017) (quoting Henkel v. Norman, 441
S.W.3d 249, 251 (Tex. 2014)); accord Cath. Diocese of El Paso, 622 S.W.3d at 829; Hillis, 602
S.W.3d at 440; Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). A landowner
owes an invitee a duty to exercise ordinary care to protect the invitee not only from those risks of
which the owner is actually aware, but also those risks which the owner should discover after
reasonable inspection. Cath. Diocese of El Paso, 622 S.W.3d at 829 (quoting Scott & White
Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010)); Henkel, 441 S.W.3d at 251; Brookshire
Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 16 (Tex. 2014). Nevertheless, “[t]here is no duty to warn
when the risks are matters ‘within the ordinary knowledge common to the community.’”
Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 707 (Tex. App.—Fort Worth 1998, pet.
denied) (quoting Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991));

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see Hillis, 602 S.W.3d at 440 (holding that “the duty does not extend to warning the invitee of
hazards that are open and obvious”); Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008)
(premises owner owes no duty to warn an independent contractor’s employees of an open and
obvious danger). Stated differently, “in most circumstances, a landowner who provides an
adequate warning acts reasonably as a matter of law, and since there is no need to warn against
obvious or known dangers, a landowner generally has no duty to warn of hazards that are open
and obvious or known to the invitee.” Austin, 465 S.W.3d at 204; accord SandRidge Energy, Inc.
v. Barfield, 642 S.W.3d 560, 567 (Tex. 2022) (“[I]f a warning would not improve upon an
invitee’s knowledge of the danger, then the law does not require a landowner to deliver one.”).
3.

Necessary-Use Exception

The necessary-use exception, however, applies “when, despite an awareness of the risks,
it is necessary that the invitee use the dangerous premises and the landowner should have
anticipated that the invitee is unable to take measures to avoid the risk.” Austin, 465 S.W.3d at
208; accord SandRidge Energy, Inc., 642 S.W.3d at 568; see Bisacca v. Pilot Travel Ctrs., LLC,
476 F. Supp. 3d 429, 436 (N.D. Tex. 2020). “The necessary-use exception holds, in effect, that
in some unreasonably dangerous situations, no warning can be adequate.” SandRidge Energy,
Inc., 642 S.W.3d at 568.
In Parker v. Highland Park, Inc., the Texas Supreme Court clarified how the necessaryuse doctrine functions in Texas. 565 S.W.2d 512 (Tex. 1978). In that case, the evidence revealed
that uneven stairways and dim lighting led to the only exit to the plaintiff’s apartment. Id. at 514.
The Court held that the necessary-use doctrine applied even though these defects were open and

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obvious because the plaintiff could not leave her apartment without traversing through the
dangerous premises. Id. at 520-21.
In contrast, in SandRidge Energy, Inc., the Texas Supreme Court held that the necessaryuse exception was inapplicable. 642 S.W.3d at 560. In SandRidge Energy Inc., the plaintiff was
employed as a power lineman, responsible for adding neutral lines to existing poles carrying
energized overhead lines. Id. at 564. The plaintiff’s work brought him within about four feet of
energized lines. Id. After six months to a year of performing this work, the plaintiff encountered
a stuck hot tap and sustained an electrical shock while attempting to loosen it. Id. The Court held
that the hazard was open and obvious because the plaintiff understood and appreciated the danger
associated with the energized lines and a warning from the defendant would not improve the
plaintiff’s knowledge of such. Id. at 567-68. The Court further held the necessary-use exception
did not apply. Id. at 569. The Court stated that the defendant “could expect that [the plaintiff’s
employer] would take the energized lines into account in instructing and equipping the plaintiff
to avoid the risk,” noting that the plaintiff worked near the energized supply line for at least six
months prior to his injury; had disconnected hot taps “hundreds of times”; and had been provided
equipment that was specialized for use on energized lines. Id.
4.

Incident at Issue

In the instant case, it is undisputed that Whisenhunt was an invitee of WestRock at the time
of the alleged incident. Defendants assert that the log over which Whisenhunt tripped in the wood
yard was open and obvious and, thus, they had no duty to protect or warn Whisenhunt of the
potential danger. Whisenhunt claims that the log was not open and obvious, and, even if it was,
then the necessary-use doctrine applies.

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Here, the log was plainly “open and obvious.” Video evidence from Whisenhunt’s dash
camera mounted in his truck documents his path through the Evadale paper mill to the unloading
location.

The video shows the wood yard littered with stray logs and debris of various

dimensions. Whisenhunt “meander[ed] [his] vehicle in between the stacks of logs and the logs on
the ground” and parked his truck “right next to” the log over which he tripped. As shown in the
video, the log is sizable and is clearly visible, unobstructed, and in broad daylight, located directly
by the front left side of Whisenhunt’s truck near the driver’s side door. Whisenhunt delivered logs
to the Evadale paper mill multiple time per week over the course of nineteen years and, according
to his testimony, he understood that he had to be aware of logs on the ground and that they could
present a tripping hazard. A landowner has no duty to warn about risks of which an invitee is well
aware.3 E.g., Hillis, 602 S.W.3d at 440; Austin, 465 S.W.3d at 204.
Whisenhunt claims that he was required to maintain eye contact with the stacker operator
during the unloading process, which made it necessary for him to walk backward though the wood
yard, despite the recognized hazards strewn about the ground. As a consequence, Whisenhunt
contends that the necessary-use exception applies because he was unable to avoid the risk.
Whisenhunt, however, has failed to show that Defendants should have anticipated that Whisenhunt
was “unable to take measures to avoid the risk.” Austin, 465 S.W.3d at 208; see Bisacca, 476
F. Supp. 3d at 437 (holding that the necessary-use exception did not apply when a second, less
convenient entrance to the store was available to the plaintiff). Although Whisenhunt testified that

3

“Requiring a landowner to warn about risks the invitee is well aware, and perhaps more aware
of by virtue of his or her expertise, hits the absurd or nonsensical button . . . .” SandRidge Energy, Inc.,
642 S.W.3d at 565, n.14 (quoting Barfield v. SandRidge Energy, Inc., 630 S.W.3d 109, 133 (Tex.
App.—El Paso 2020) (Alley, J., dissenting)).

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Case 1:20-cv-00296-MAC Document 32 Filed 09/16/22 Page 14 of 14 PageID #: 259

he was required to maintain eye contact with the stacker operator, Whisenhunt could have perused
the area where he would have to walk when he exited the truck, checked behind him before
walking backward, occasionally watched his walking path so that he did not trip, and chosen a
path that circumvented the log. Whisenhunt conceded at deposition that in order to maintain his
safety in the wood yard, he was responsible for paying attention to where he walked. Therefore,
Whisenhunt was able to take steps to avoid the risk of tripping. In fact, Whisenhunt delivered logs
to Evadale paper mill for nineteen years without injury. Hence, Whisenhunt has not shown that
Defendants should have anticipated that he was unable to take measures to avoid the risk of
tripping over a log in the wood yard. Accordingly, the necessary-use exception does not apply.
The evidence conclusively establishes that Whisenhunt was fully aware of the potential
tripping hazard presented by the logs in the wood yard, such as the one that caused his alleged
injuries. Texas law does not require Defendants to have warned Whisenhunt of a danger he
understood and appreciated.

Therefore, Defendants cannot be faulted for failing to warn

Whisenhunt of an open and obvious hazard on its premises.
III.

Conclusion
In accordance with the foregoing analysis, Defendants’ motion for summary judgment is

GRANTED. Defendants are entitled to judgment as a matter of law on Whisenhunt’s premises
liability and common law negligence claims. A final judgment shall be entered separately.
SIGNED at Beaumont, Texas, this 16th day of September, 2022.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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