Affirmed and Memorandum Opinion filed August 17, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00626-CV
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KEVIN LEWIS, Appellant
V.
RANDALL=S FOOD & DRUG, L.P., Appellee
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On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 01‑50121
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M E M O R A N D U M O P I N I O N
In this personal injury suit, appellant, Kevin Lewis, appeals from a summary judgment in favor of appellee, Randall=s Food & Drug, L.P. (ARandalls@). Lewis contends that summary judgment was improperly granted because (1) Randalls=s motion should have been treated as a traditional motion for summary judgment, and Randalls failed to conclusively disprove any element of appellant=s claim, and (2) he presented sufficient evidence to defeat a no-evidence motion for summary judgment. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
In 1997, appellant began working for Randalls. In January 1999, following an injury, his doctor placed him on a modified work duty. On August 22, 2000, appellant was working as a truck loader at Randalls=s distribution center. Appellant claims that he injured his back while he was lifting a box of fish weighing between ninety and one-hundred pounds. According to appellant, he had been instructed to immediately load the boxes, which were heavier than any other boxes he had lifted before, and there were no other workers in the area to help him lift them. Appellant sued Randalls, a non-subscriber to workers= compensation, claiming Randalls breached its duty of care to him by (1) failing to observe federal lifting standards, (2) requiring him to perform heavy lifting while he was on a modified duty release, and (3) failing to provide an adequate workforce. Randalls filed a motion for summary judgment, which the trial court granted.
II. No Evidence Motion for Summary Judgment
In his first issue, appellant contends that Randalls filed a traditional, not a no-evidence motion for summary judgment, and we should review it as such. See Tex. R. Civ. P. 166a(c), (i); Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 419B20 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (noting that the two forms of summary judgment are distinct and invoke different standards of review). Appellant contends this motion should be treated as a traditional summary judgment motion simply because Randalls attached evidence to it. However, the Texas Supreme Court recently held that a motion with evidence attached brought solely under subsection (i) should not be treated as a traditional summary judgment motion. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). Accordingly, we will review the motion for summary judgment as a no-evidence motion.
III. Standard of Review
A no-evidence motion for summary judgment shifts the burden of proof to the non-movant to produce evidence raising a genuine issue of material fact on the contested issue on which the non-movant would bear the burden of proof at trial. See Tex. R. Civ. P. 166a(i). In this motion, a party asserts there is no evidence of one or more essential elements of the claims of the opposing party. Lake Charles Harbor & Terminal Dist. v. Bd. of Trs. of Galveston Wharves, 62 S.W.3d 237, 241 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). Unlike a movant for traditional summary judgment, a movant for a no‑evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense. Id. To defeat a no-evidence summary judgment motion, the non-movant need not marshal its proof, but should identify more than a scintilla of evidence raising a fact issue on the challenged elements. See Tex. R. Civ. P. 166(i). If the non-movant does not satisfy its burden of producing some evidence on the challenged elements, the trial court must grant the motion covering all claims or defenses composed of the challenged elements. Tex. R. Civ. P. 166a(i); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436 (Tex. App.CHouston [14th Dist.] 1999, no pet.). We review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Lake Charles Harbor & Terminal Dist., 62 S.W.3d at 241B42.
IV. Analysis
Because Randalls is a non-subscriber to workers= compensation, in order for appellant to recover, he must establish Randalls was negligent. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995). The elements of negligence are (1) a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. See id. at 869. Randalls owes a duty of ordinary care to provide a safe workplace for its employees. See id. Appellant claims that Randalls breached its duty to provide him with a safe workplace by (1) requiring appellant to lift objects that did not comply with federal standards relating to the acceptable weight of lift, (2) requiring him to do heavy lifting while he was on a modified duty release, and (3) failing to provide an adequate workforce. In its motion for summary judgment, Randalls contended that appellant failed to present any evidence supporting his assertion that these actions constitute breach of a duty, or were the proximate cause of his injury. In response to Randalls=s motion, appellant submitted his affidavit and deposition testimony, Randalls=s answers to interrogatories, and the affidavit of expert Henry Wickes.
A. Breach of Duty
First, we consider appellant=s claim that Randalls breached its duty to provide him with a safe workplace by failing to comply with federal standards relating to the acceptable weight that should be lifted. In support of appellant=s claim, he submitted the affidavit of expert Henry Wilkes, a technical consultant in the fields of safety engineering, safety management, and human factors engineering. In deciding the merits of appellant=s claim, we base our decision on the evidence and arguments presented by the parties. Accordingly, we will not address whether noncompliance with NIOSH standards constitutes a breach of an employer=s duty. Rather, we will address Randalls=s claim that Wilkes=s affidavit is not competent summary judgment evidence of a breach because Wilkes=s statements are conclusory. See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997) (holding conclusory statements made by an expert are insufficient to support or defeat summary judgment). A conclusory statement is one that does not provide the underlying facts to support a conclusion. Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.CHouston [14th Dist.] 2000, no pet.). An objection that an affidavit is conclusory is an objection to the substance of the affidavit that may be raised for the first time on appeal. Id.
With regard to whether Randalls was complying with federal standards relating to the amount of weight appellant lifted (between ninety and one-hundred pounds), Wilkes stated, AThis weight of lift greatly exceeds the acceptable weight of lift according to the revised NIOSH Lifting Equation[1] which is the standard used by OSHA to determine safe lifting limits. . . . Randall failed to exercise ordinary care to adhere to relevant or logically applicable provisions of the NIOSH lifting equation.@
Wilkes did not explain what facts (other than the weight of the fish) formed the basis of his conclusion that the weight appellant lifted exceeded the acceptable weight of lift under the NIOSH lifting equation. A NIOSH recommended weight limit is not a per se limit applicable to all situations. Rather, a recommended weight limit must be computed by inserting the weight of an object and six other factors, such as frequency (including duration) and distance of the lift into the NIOSH mathematical equation. Here, the only factor Wilkes provided in support of his conclusion was the weight of the fish. He did not provide any of the other factors that determine a recommended weight limit, nor did he explain why these other factors, though required to complete the calculation, were not necessary to support his conclusion. Accordingly, we agree that Wilkes=s statement is conclusory and cannot defeat summary judgment. Therefore, appellant presented no evidence that Randalls breached any duty by failing to comply with federal standards relating to the amount of weight of the lift.
B. Proximate Cause
We next consider whether appellant presented any evidence Randalls was negligent (1) by requiring him to lift heavy boxes while he was on a modified duty work release, and (2) for failing to provide an adequate workforce. Assuming, without deciding, appellant presented some evidence these actions constituted a breach of a duty, we consider Randalls=s claim that appellant presented no evidence that these actions proximately caused his injury. Proximate cause consists of cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
Lay testimony is sufficient to establish causation where general experience and common sense will enable a lay person to determine a causal relationship between the event and the injury. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984). However, if the question of causation is not one that can be answered by general experience, expert testimony linking the alleged negligence to the injury is required. Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996). Randalls argues appellant was required to present expert testimony confirming that Randalls=s allegedly negligent acts were the cause in fact of appellant=s injury, and because he did not do so, there is no evidence of this element of his claim.
1. Lifting While on Modified Duty
Appellant claims his injury was caused by Randalls=s requiring him to do heavy lifting while he was on a modified duty work release due to a previous injury.[2] He did not provide any medical testimony linking his back injury to this alleged negligence. The only evidence related to his restricted duty was his statement in his affidavit:
At the time I was injured at Randall=s I was released for light duty only. I was released on January 28, 1999 . . . with restrictions that I should not bend, twist, stoop, kneel, push, pull, and reach during an eight hour period. . . . When Randall=s had this >modified duty release= they assigned me to work as a >truck loader,= a position that required me to bend, twist, stoop, kneel, push, pull and reach during each eight hour period which was in violation of my return to work release.
Nothing in the record indicates appellant=s work restrictions were related to his back. Additionally, the standard work release form contained a Alifting@ section with various possible lifting restrictions. Nothing in this section on appellant=s form was marked.
To decide whether appellant=s testimony is adequate to prove causation, we must determine whether general experience and common sense would enable a layman to determine the causal relationship between the eventCRandalls requiring appellant to lift while he was on a modified duty work releaseCand appellant=s back injury. See Morgan, 675 S.W.2d at 733. Generally, lay testimony that establishes a sequence of events providing a strong, logically traceable connection between the event and condition is sufficient to prove causation. Id. Here, appellant was placed on a modified duty work release unrelated to his back, without any noted lifting restrictions. He was assigned to work as a truck loader, and he lifted boxes many times. A year and a half after being placed on modified duty work status, he injured his back while lifting. Appellant makes no claim that he was performing a restricted activity when he was injured, nor does he claim the performance of any of those activities contributed to his injury. Because appellant claims he was injured while lifting, and not performing a restricted activity, this sequence of events does not provide a strong, logically traceable connection between Randalls=s requiring appellant to perform a non-restricted activity and his back injury.
Additionally, in cases where lay testimony has been held to be sufficient to establish causation, the sequence of events occurred within a short period of time. See, e.g., Morgan, 675 S.W.2d at 733 (breathing and swelling problems occurred soon after exposure to chemical fumes); Dawson v. Briggs, 107 S.W.3d 739, 754 (Tex. App.CFort Worth 2003, no pet.) (plaintiff suffered jaw pain and swelling the day of a car accident); Royal Globe Ins. Co. v. Suson, 626 S.W.2d 161, 162B64 (Tex. App.CFort Worth 1981, writ ref=d n.r.e.) (something popped in plaintiff=s back while lifting); Fidelity & Guar. Ins. Underwriters, Inc. v. La Rochelle, 587 S.W.2d 493, 494, 496 (Tex. Civ. App.CDallas 1979, writ dism=d) (back pain occurred shortly after a ping pong game). Here, appellant claims his back was injured because he was required to lift while he was on modified duty work status, which he had been placed on a year and a half before his injury. The passage of this amount of time in the sequence of events prevents a layman from being able to determine the causal relationship between the event and the injury. See Lenger v. Physician=s Gen. Hosp., Inc., 455 S.W.2d 703, 708 (Tex. 1970) (holding sequence of events did not establish causation where several days passed between event and discovery of injury, and other possible causes of injury occurred during that time); Illinois Employers Ins. of Wausau v. Wilson, 620 S.W.2d 169, 172 (Tex. Civ. App.CTyler 1981, writ ref=d n.r.e.) (holding the length of time between the event and plaintiff=s leg amputation along with the complexity of the injury required expert testimony on causation).
Accordingly, because general experience would not enable a layman to determine the causal relationship, appellant was required to submit expert testimony connecting his injury to Randalls=s alleged negligence. See Leitch, 935 S.W.2d at 119. Because he did not do so, he failed to present any evidence that Randalls=s alleged negligence was the proximate cause of his injury.
2. Failure to Provide an Adequate Workforce
As for Randalls=s failure to provide an adequate workforce, appellant stated in his affidavit that he lifted a bundle of fish weighing between ninety and one-hundred pounds, and there was Anobody in the vicinity to help@ him lift it. We recognize that an employer has the duty to provide adequate help under the circumstances for the performance of required work. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995). However, whether appellant=s injury would have been prevented had someone been helping him is not a question that can be answered by general experience. See Leitch, 935 S.W.2d at 119 (holding that the question of whether proper lifting equipment would have prevented a back injury could not be answered by general experience, and it required expert testimony). There is no evidence in the record, expert or otherwise, that appellant would not have been injured had someone helped him. Therefore, appellant presented no evidence that Randalls=s failure to provide help was the proximate cause of his injury. See id.
V. Conclusion
Appellant failed to present any evidence that Randalls was negligent for requiring appellant to lift a weight that did not comply with federal standards, requiring him to do heavy lifting while he was on a modified duty release, and failing to provide an adequate workforce. He did not present any other theories of negligence. Therefore, the trial court did not err in granting summary judgment. Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed August 17, 2004.
Panel consists of Justices Fowler, Edelman and Seymore.
[1] NIOSH, the National Institute for Occupational Safety and Health, publishes guidelines, including a lifting equation, for determining recommended weight limits for lifting.
[2] Randalls argues there is no evidence in the record that appellant was still on a modified duty at the time of his injury because appellant presented no expert testimony on this matter. However, a question that can be answered by general experience does not require expert testimony. See Leitch, 935 S.W.2d at 119. Whether an employee is on a modified work release can be determined through general experience. Appellant claimed in his deposition that he was still on restricted duty. His work release form does not indicate that his work restrictions ended on a specific date, or that the restrictions were only for a limited amount of time. Viewing this evidence in the light most favorable to appellant, this is some evidence that he remained on modified duty at the time of his injury.