Affirmed as Modified and Memorandum Opinion filed April 20, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00639-CV
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DONALD BISHOP, Appellant
V.
NABISCO, INC. and KRAFT FOODS NORTH AMERICA, INC., Appellees
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 01-59734
M E M O R A N D U M O P I N I O N
Appellant, Donald Bishop (ABishop@) appeals a take nothing judgment rendered against him in his personal injury suit. He sued Nabsico, Inc. and Kraft Foods America, Inc. (ANabisco@)[1] after falling through a covered hole while working at a Nabisco bakery. Specifically, he alleged that Nabisco was in Acontrol of the premises, and inspection and maintenance of the covers for the holes that made the basis of [his] lawsuit.@ Nabisco alleged in its answer that Bishop was comparatively negligent in causing his injuries, and Bishop=s claims were barred by the borrowed servant doctrine and Texas=s workers= compensation laws. We affirm the take nothing judgment; however, we modify the judgment to reflect the analysis set out below.
Bishop presents two points of error for review: (1) the evidence was legally and factually insufficient to support the jury=s finding that Bishop was a borrowed servant at the time of his injury, and (2) the jury=s findings on past damages, pain and suffering, mental anguish, and physical impairment were inadequate and manifestly unjust in light of the uncontroverted evidence. Nabisco filed a cross appeal arguing that there was no evidence to support the jury=s finding of negligence on the part of Nabisco.[2] Nabisco asks us to enter a take nothing judgment on this basis.
Bishop was an employee of Midwest Mechanical (AMidwest@). Nabisco employed Midwest, an independent contractor, to assist Nabisco during the dismantling of its bakery. Midwest employees began working in December 1999. There was no written contract between Nabisco and Midwest. Rather, Midwest billed time and materials and was paid through purchase orders. Midwest supplied up to fourteen workers who were divided into two crews and supervised by two foremen, Robert Matthieu and Pete Combs, and one general foreman, Donny Knight. Midwest did not employ a safety man; however, Nabisco did have a safety man onsite at all relevant times.
James Hilton, Nabisco=s plant engineering manager, directed the dismantling of the bakery. Hilton made decisions with regard to project staffing. He advised Midwest on the type of and number of workers that were required. Hilton dealt directly with Donny Knight, Midwest=s general foreman, in matters related to the project. Midwest was specifically assigned to the Amixing mod@ area and was directed to remove the mixing equipment. On a weekly basis, Hilton would tell Knight which equipment to take out and where he wanted it shipped. Although he did not give specific instructions on how to remove each piece of equipment, Hilton would advise Midwest on the order the equipment was to be removed and the equipment=s weight. Hilton received progress reports from Midwest.
When the equipment was removed, large holes, open to lower levels, remained. After receiving complaints from other Nabisco employees, Hilton directed Donny Knight to cover the holes. Midwest constructed wooden covers with materials provided by Nabisco. On February 25, 2000, Bishop fell through a hole while standing on one of these covers. After Bishop=s fall, Hilton directed that new covers be constructed and placed over the holes. An accident investigation revealed that the cover had been weakened after being struck by a skid loaded with the removed equipment.
In response to four questions, the jury found: (1) both Nabisco and Bishop proximately caused the incident, (2) both Nabisco and Bishop were 50% responsible for contributing to Bishop=s injuries, (3) Bishop was a borrowed employee of Nabisco at the time of the incident, and (4) reasonable compensation for Bishop=s past injuries is $340,000 and $60,000 for injuries that have a reasonable probability of being sustained in the future. Additionally, it was stipulated by both parties that Bishop made a workers= compensation claim and received benefits for his injuries. Following the exclusive remedy provision found in section 408.001 of the Texas Labor Code, the court entered a take nothing judgment in favor of Nabisco.
When both legal and factual sufficiency challenges are raised on appeal, the court must first examine the legal sufficiency of the evidence. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam). In reviewing a challenge to the legal sufficiency of the evidence, an appellate court considers only the evidence and inferences tending to support the trial court's findings and disregards all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). Thus, we must examine the record to see whether some evidence exists to support the fact in issue, namely, whether Bishop was a borrowed servant. See id. In reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
Texas law holds that an employee of a general employer may be considered an borrowed servant of another with respect to some activities. Wingfoot Enters. v. Alvardo, 111 S.W.3d 134, 146 (Tex. 2003); Sparger v. Worley Hosp. Inc., 547 S.W.2d 582, 583 (Tex. 1977); Coronado v. Schoemann Produce Co., 99 S.W.3d 741, 753 (Tex. App.CHouston [14th Dist.] 2003, no pet.). A borrowed servant relationship arises when the employer has Athe right to direct and control the employee with respect to the details of the particular work at issue.@ St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2003) (plurality opinion); Sparger, 547 S.W.2d at 583. Ordinarily, the contract between the two employers establishes which employer has the right of control. Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex. 1963). However, in the absence of a contract, the right to control is Adetermined as an inference from such facts and circumstances as the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, length of the special employment, the type of machinery furnished, acts representing an exercise of actual control, the right to substitute another operator of a machine, etc.@ Id.
In making his insufficiency argument, Bishop asserts that the only evidence that Nabisco can rely upon is the testimony of his expert, Ronald Sokol. Without citing any authority, Bishop argues on appeal that Sokol=s statements are not evidence, but are merely opinions. Sokol testified as plaintiff=s expert on issues of safety. In preparing for trial, Sokol reviewed depositions, photographs, and an expert=s report. When questioned by Nabisco, he stated:
I believe they were controlling the detail of the work. They were B they were saying what was to be removed and they were telling them B setting schedules for them. They were setting requirements on packing, on shipping. They were telling them B when the holes were open, Midwest went to Nabisco and said: What do you want us to do? And they came back and covered it. So, I thought that they were controlling that aspect as well.
Nabisco=s counsel sought clarification of Sokol=s answer. AIt=s your opinion, as an expert witness retained by [Bishop], that Nabisco had the right to control the means, manner and detail of the work performed by Midwest and that crew?@ Sokol responded, AI believe they were controlling it. I mean, you=re saying the right to, I don=t understand what you=re getting at there, but in my opinion the actions of the things that I just named I believe it shows that there was controlling going on there.@ Bishop did not object during this line of questioning.
Other than Bishop=s naked assertion that this testimony is no evidence, we have no other basis for disregarding it. Accordingly, we are inclined to find that this issue is waived by appellant=s failure to cite any authority supporting his position. See Tex. R. App. P. 38.1(h) (requiring a brief to Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities@); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (AAn issue not supported by authority is waived@) (citations omitted)). However, even if we were to conclude that there was insufficient evidence to support the jury=s borrowed servant finding, we must affirm the take nothing judgment on the basis presented in Nabisco=s cross appeal.
Bishop=s claims are governed by chapter 95 of the Civil Practices and Remedies Code as he alleges a failure to provide a safe workplace. Chapter 95 requires that the plaintiff (1) prove the property owner exercised control over the manner in which the independent contractor=s employees carried out their work and (2) prove that Athe property owner had actual knowledge of the danger or condition resulting in the personal injury . . . and failed to adequately warn.@ Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997) (emphasis added). Nabisco challenges the sufficiency of the evidence supporting the jury=s finding that Nabisco=s negligence contributed to Bishop=s injuries.
We agree with Nabisco that there was no evidence to support the jury=s finding that Nabisco=s negligence contributed to Bishop=s injuries. Chapter 95 requires that the plaintiff have actual knowledge of a dangerous condition. Tex. Civ. Prac. & Rem. Code Ann. ' 95.003(2) (Vernon 1997). Midwest constructed the covers without any instructions as to how to build them. Nabisco cites the testimony of Ronald Sokol, Bishop=s expert, who explained that the danger of falling would arise only if the cover had been damaged or dislodged. Every Nabisco employee who testified at trial indicated that they had no knowledge that the cover had been damaged. In refuting Nabisco=s insufficiency claims, Bishops directs us to testimony by Nabisco=s employees who acknowledged that it was potentially harmful to have large equipment working next to these covers; however, we reiterate that there is no evidence that Nabisco actually knew that the covers had been damaged. Bishop even testified that he did not know that it had been weakened. Actual knowledge that the cover was dangerous is different than knowing that the cover was potentially dangerous. See Kelly v. Lin Television of Texas, L.P., 27 S.W.3d 564, 572 (Tex. App.CEastland 2000, pet. denied) (declining to equate a negligent failure to inspect with actual knowledge of dangerousness); see also Fisher v. Lee & Chang P=ship, 16 S.W.3d 198, 202 (Tex. App.CHouston [1st Dist.] 2000, pet. denied) (explaining that because land owner had no knowledge of defective ladder there was no duty to warn).
Finding no evidence that Nabisco knew the covers were dangerous, we affirm the take nothing judgment and modify the trial court=s judgment. Instead of the Labor Code=s exclusive remedy provision, the take nothing judgment, as modified, rests upon Bishop=s failure to meet his burden under chapter 95 of the Civil Practices and Remedies Code. Accordingly, we need not reach appellants second point of error regarding the jury=s damage finding.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed April 20, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
[1] Nabisco was subsequently acquired by Kraft Foods North America, Inc.
[2] This ground was first raised in Nabisco=s motion for JNOV, which was expressly denied by the trial court in its final judgment.