Affirmed and Memorandum Opinion filed August 31, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00345-CV
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JOHN EARNEST HILL, JR; JOHN ANTHONY HILL, MATTHEW DAVID HILL, AND GRACIE LOVE HILL, MINOR CHILDREN BY AND THROUGH NEXT FRIEND JOHN EARNEST HILL, JR.; AND CHRISTINA HILL, WIFE OF JOHN EARNEST HILL, JR., Appellants
V.
CONSOLIDATED CONCEPTS, INC., Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 01-62777
M E M O R AN D U M O P I N I O N
John Hill[1] was injured when he fell from a roof while installing metal shingles. He brought suit against Consolidated Concepts, Inc. (ACCI@) alleging ordinary and gross negligence. The jury found that Hill was 51% negligent, and CCI was 49% negligent. Because the jury apportioned more than 50% negligence to Hill, they did not reach the damages questions. Hill appeals with four issues: (1) the trial court reversibly erred by preventing admission of evidence establishing that CCI was obligated to comply with the Occupational Safety and Health Act (AOSHA@); (2) the trial court reversibly erred by not admitting certified OSHA administrative records; (3) the trial court reversibly erred by permitting CCI to ask Hill about his social security disability benefits; and (4) the trial court reversibly erred when it failed to grant a mistrial or reprimand CCI=s counsel during CCI=s closing argument for mentioning Hill=s social security disability and Medicare benefits. We affirm.
Factual and Procedural Background
On October 29, 2000, John Hill was installing a metal roof on a McDonald=s in Seymour, Indiana. Hill was working as a subcontractor for CCI.[2] He was not using any fall protection, though that protection was required by industry standards. While installing the metal shingles, Hill fell from the one-story roof, hit his left foot on a handicapped-parking sign, and was severely injured. Due to the severity of his injuries, Hill was taken to a hospital in Indianapolis, Indiana, where he was admitted until November 20, 2000.
During Hill=s initial hospital visit in October and November of 2000, he underwent multiple surgeries to stabilize his injury. Hill=s left ankle, tibia, and fibula had been shattered by the fall. Additionally, Hill suffered from an IV site infection, and a methicillin-resistant staph aureus infection. Physicians in Indianapolis discharged him believing they had properly stabilized the injury and addressed the infections; Hill then returned to Texas. Yet, he continued to suffer from an infection in his leg and underwent numerous other surgeries in Texas to treat the infection. Ultimately, Hill received a below-knee amputation because the infection could not be controlled or eliminated. There was conflicting testimony as to the cause of the infection, but that testimony is unimportant for purposes of this appeal.
Before his injury, Hill had worked in manual labor, primarily roofing and installation of vinyl siding. After his injury, he attempted to resume work as a manual laborer, but was unable to do so. He could no longer move as he once did and, following the amputation, the skin on his stump would become infected if he worked outside. Hill introduced testimony suggesting that financial hardship prevented him from retraining for a new career, although a vocational rehabilitation counselor had recommended he do so. CCI rebutted that impression of poverty with evidence of Hill=s receipt of social security disability benefits showing that Hill was not as poverty-stricken as he implied by his testimony.
A. Safety Equipment and Assumption of Duty
Appellant brought suit against CCI alleging ordinary and gross negligence.[3] The chief dispute between Hill and CCI was not whether fall protection would have prevented the injuryCthe testimony was undisputed that it would haveCbut who had the responsibility to provide the protection. Hill accepted some responsibility for the injury, but contended CCI was more at fault. Hill argued CCI had provided fall protection to him in the past, but refused to do so for the McDonald=s jobs in Indiana. Hill also introduced evidence that CCI was installing metal roofs on numerous McDonald=s restaurants and that he had installed metal roofs on other McDonald=s restaurants before the Seymour job. Importantly, CCI=s project manager, Ted McCollum, trained Hill on the proper installation of these metal roofs. Yet, Hill testified McCollum never informed him that fall protection was necessary. Additionally, Hill testified that he had asked McCollum for a safety harness on a McDonald=s job prior to the work in Seymour, and McCollum refused to provide one; McCollum allegedly told Hill to either get on the roof, or return to Texas. Thus, Hill=s position was that CCI had assumed the duty to provide safety equipment, but specifically refused to do so for the McDonald=s jobs; Hill also contended that CCI led Hill to believe that fall protection was not necessary under industry standards for the one-story McDonald=s structures.
Hill also attempted to prove that CCI had a general past practice of providing safety equipment to subcontractors. Hill and CCI disagreed on whether CCI had a policy of providing safety equipment. CCI admitted to lending safety harnesses on a large roofing job in 1995. However, CCI maintained that because it was unable to recover that equipment, and therefore lost money on the arrangement, it had not provided equipment since. CCI acknowledged a policy of purchasing safety equipment for subcontractors, if requested, and then subtracting the cost of equipment out of its final payment to the subcontractor. Hill countered with evidence that CCI continued to maintain a stock of safety equipment, which it continued to provide to its subcontractors even after the 1995 job. As a result, Hill argued, CCI was responsible for safety at the work site because it assumed that duty. To prove Hill had assumed responsibility for his own safety, CCI presented evidence of an agreement Hill signed, in which he agreed to comply with all OSHA standards and regulations. Believing this evidence opened the door to prove OSHA regulations required CCI to provide safety equipment, Hill offered evidence of OSHA regulations, citations issued to CCI and the accompanying fines paid, and other certified administrative documents. The trial court disagreed with Hill=s argument and would not admit that evidence.
B. Collateral Sources
During closing argument, CCI referenced collateral sources of income. Although the trial court had allowed brief questioning of social security disability benefits during the trial, it did so for the limited purpose of rebutting an impression of poverty before the jury. Evidence that Medicare had paid for some of Hill=s treatment was also admitted in a video deposition and there is no objection in the record to this evidence. Commenting on the evidence, CCI made the following argument:
[CCI]: Let=s talk about medicals and wages. You heard what Dr. Duval had to say. You heard what Mr. Hill had to say about disability. And, really, they want you to put down some tremendous numbers for all of this and it=s being taken care of.
(Emphasis added). Hill immediately objected and moved for a mistrial; the trial court held a bench conference in which the motion was denied and it instructed CCI not to Asay anymore about it.@ The trial court agreed with CCI that it could discuss social security disability benefits insofar as the Adoor was opened@ regarding poverty. The trial court did not rule that CCI could use the evidence beyond the limited purpose for which it was admitted. The trial court then instructed the jury that it was not to consider any collateral sources of income in reaching its verdict. Despite the trial court=s ruling, CCI soon made this statement:
[CCI]: Ms. Chalfin [vocational rehabilitation counselor] wants to say he=s a motivated guy. Well, I disagree. He=s working part-time, cash only for a reason. He is collecting his disability benefits - -
(Emphasis added). Hill again objected immediately and the trial court held another bench conference. The trial court denied the motion for mistrial again, refused Hill=s request to reprimand CCI before the jury, and again told CCI to stop referring to collateral sources. Following the bench conference, the trial court again reminded the jury not to consider collateral sources when answering the questions.
C. Jury Findings and Appeal
The jury determined that Hill was 51% negligent, and CCI was 49% negligent. As a result, it did not reach the damages questions. Had the jury apportioned to CCI at least 50% negligence, Hill would have received damages. Hill contends that, because the difference between the jury=s answer and an answer that would allow some damages was only 1%, any error in the trial was harmful enough to warrant a reversal. While this argument has some merit, because we hold the trial court did not err in its rulings and took appropriate action to cure any harm, and because the improper jury argument concerned damages onlyCquestions the jury did not reach, we affirm the judgment of the trial court.
Analysis
I. OSHA Evidence
Appellants raise two issues concerning the trial court=s rulings that OSHA evidence was inadmissible. The first is that the trial court reversibly erred when it admitted a form in which Hill agreed to comply with OSHA standards and regulations, but then refused to admit OSHA evidence purportedly imposing a similar duty upon CCI. The second issue is that the trial court reversibly erred when it refused Hill the opportunity to introduce evidence of certified OSHA administrative records that would impeach the deposition testimony of CCI=s president, Dusty Kent.
The trial court did not allow appellants to introduce their desired evidence because it determined the trial involved common law negligence, not OSHA regulations. We review rulings on evidence for abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). Even if there is error, we will not reverse unless the complaining party can show that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992). Because we agree with the trial court that OSHA evidence was irrelevant, we affirm.
A. OSHA Regulations were Irrelevant and the Form did not Open the Door
The trial court ruled that OSHA regulations would not be admissible, and indeed, OSHA regulations did not become an issue at the trial.[4] Appellants argue that admitting a signed form, in which Hill agreed to comply with OSHA, opened the door for them to prove that OSHA regulations placed responsibility for safety on CCI. Essentially, appellants believe that CCI made OSHA regulations and standards an issue in the trial. We disagree.
The OSHA evidence at issue was irrelevant to this case. This was a negligence case, based in common law. Duty is the threshold question for a negligence case. Yeager v. Drillers, Inc., 930 S.W.2d 112, 115 (Tex. App.CHouston [1st Dist.] 1996, no pet.). Hill had to prove that CCI owed him a duty before he could prevail on his claim. It was precisely for this point that he wanted to introduce OSHA regulations. However, our common law is not expanded by OSHA regulationsCeither a general contractor owes a duty based upon our common law principles, or it does not. See 29 U.S.C. _ 653(b)(4) (stating that the regulations are not intended to affect common law duties); see also McClure v. Denham, 162 S.W.3d 346, 352B53 (Tex. App.CForth Worth 2005, no pet.). Therefore, the regulations were not relevant to the issue of duty.[5] They may not be used to establish negligence per se.
However, Hill argues CCI opened the door to evidence of OSHA regulations when the trial court allowed evidence regarding the assumption of duty. It was on this issue that the form regarding Hill=s compliance with OSHA was admitted. Both sides hotly contested that the other had assumed a duty to provide safety equipment. To rebut Hill=s theory, CCI introduced a form in which Hill had agreed to follow all OSHA regulations and safety guidelines. Thus, Hill believes, CCI opened the door to all OSHA regulations through this piece of evidence. We disagree because the form contained no reference to any particular OSHA regulation placing responsibility on Hill. Indeed, the trial court admitted no regulation for either side on the issue of responsibility or duty. Additionally, CCI never argued Hill had a statutorily mandated duty. The sole purpose of the form was to show that Hill, not CCI, assumed responsibility for safety. Had there been similar evidence that CCI had assumed responsibility for safety, that, too, would have been admissible.
Perhaps the distinction is fine between the type of evidence CCI offered and the trial court admitted and what Hill desired to admit, but it is important. On one side, CCI admitted evidence of voluntary assumption of duty, and on the other Hill sought introduction of regulations that impose federal dutiesCregulations that, by their express terms, do not alter common law duties. The trial court correctly determined in the first instance that evidence of OSHA regulations was not admissible to prove any element of the offense. It also ruled correctly that admission of the form did not open the door to admission of OSHA regulations. We overrule appellants= first issue.
B. OSHA Administrative Records Inadmissible
Arguing a theory of impeachment, Hill contends he should have been allowed to introduce certified administrative records showing OSHA had cited and fined CCI for roofers= failure to wear fall protection. Hill also wanted to admit a certified record of an administrative OSHA proceeding against CCI. Hill posits that these records were admissible to impeach the deposition testimony of CCI=s president, Dusty Kent. In his deposition, Kent denied knowledge of certain OSHA regulations, citations CCI had received, and accompanying fines paid, as well as its practice of providing safety equipment in the past. The records showed the citations CCI received and the fines it paid, the regulations pertinent to Hill=s job as a roofer, and a transcript in which CCI=s vice president outlined CCI=s 1995 practices of providing safety equipment.
We disagree with Hill=s position for two reasons. First, the testimony at trial was consistent with the OSHA evidence. Also, Hill was permitted to explore fully the basic evidence he sought of past practices regarding safety equipment and what the industry safety standards were. Therefore, impeachment with the OSHA evidence was unnecessary. Second, as we have explained, evidence of whether OSHA would hold CCI responsible for any safety violations through citations and fines is irrelevant to the issue of common law negligence; therefore, the citations and fines paid had no bearing on liability.
1. The Administrative Hearing Evidence was Inadmissible
Hill acknowledges that Kent never denied making the deposition statements at trial but nevertheless argues he should have been allowed to impeach Kent=s deposition testimony because Kent denied knowledge of many of these facts.[6] However, Hill does not explain how the rules of evidence permit such impeachment. At trial, Hill elicited the desired testimony regarding past practices and safety. He then had the opportunity to use the deposition testimony to show inconsistent statements. If prior testimony conflicts with trial testimony, the proper method of attacking credibility is to use that prior testimony to impeach the trial testimony in accordance with Texas Rule of Evidence 613(a). At that point, a litigant has accomplished her goal of impeaching the witness. A litigant may not then continue and impeach the prior testimony. That reasoning would allow an unending line of impeachment.
Additionally, during the trial, there was ample evidence presented concerning industry standards for safety, as well as CCI=s past practices concerning whether it or the subcontractors ensured those standards were met. Specifically, Hill elicited considerable testimony about CCI=s practice on a 1995 construction job when it provided safety harnesses to all roofers. Hill also elicited testimony from CCI=s representatives that they still own that equipment, and that, upon request, they will purchase safety equipment for subcontractors and then deduct the cost from final payment to the subcontractor.
2. OSHA Fines and Citations Inadmissible
We will not belabor the point again; the fines and citations were inadmissible for the purposes offered. Even if Kent had denied that CCI had received those fines and citations in his depositionCwhich is not entirely clearCthe evidence is still inadmissible because it was irrelevant. Moreover, Hill cannot successfully argue that a lie, as he characterizes it, during a deposition necessarily allows admission of otherwise irrelevant, confusing, and misleading evidence without laying the proper foundation for impeachment. However, as we have noted, the trial court did not believe Kent was misleading, evasive, or deceptive in his deposition. In any event, Hill=s reasoning on these facts is unpersuasive. With no inconsistent trial testimony from Kent on these matters, introduction of fines and citations for impeachment is a hypothetical question only because, as we have explained, a litigant may impeach trial testimony only.
C. Summary
Having determined the trial court did not err in excluding the contested evidence, we overrule appellants= first and second issues.
II. Collateral Source Doctrine
In their third issue, appellants complain the trial court admitted evidence that Hill was receiving social security disability benefits. Appellants rely on the general rule precluding a tortfeasor from obtaining the benefit of even mentioning payments to the injured party from sources other than the tortfeasor. Taylor v. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.CHouston [14th Dist.] 2004, pet. denied); see also Mundy v. Shippers, Inc., 783 S.W.2d 743, 745 (Tex. App.CHouston [14th Dist.] 1990, writ denied) (explaining that the rule=s rationale is to prevent the jury from reducing the amount of actual damages by the amount received from collateral sources). CCI counters that Hill injected the issue of poverty and financial hardship into the case and thereby opened the door to the admitted evidence. See Taylor, 132 S.W.3d at 628; Mundy, 783 S.W.2d at 745. The trial court=s decision was within the zone of reasonable disagreement and thus the trial court did not abuse its discretion and there is no error.
Through testimony from Hill, appellants stated that they were under financial hardship:
[Counsel]: John [Hill], you already said that you were off work for a good while with all those infections and the amputation. How did you feel during this time period when you were off work, John?
[Hill]: It was stressful. I couldn=t do anything. I couldn=t provide for my family. It was kind of hard to deal with.
[Counsel]: How did you feel when your doctors finally told you you could go back to work?
[Hill]: It was a relief.
[Counsel]: Why were you relieved, John?
[Hill]: I was excited. I get to get out of the house and get to do something.
[Counsel]: What about paying your bills?
[Hill]: Yeah, that=s always a relief.
. . .
[Defense]: Okay. Well, Mr. Hill, Ms. Chalfin just testified that she referred you to the Texas Rehabilitation Commission to get you some vocational and retraining and rehabilitation services and that was over a year and a half ago and you have never gone; why is that?
[Hill]: For one, I don=t know how to get it set up, number two, I mean, if you can=t afford day care - - I=ve got a three year-old and when I am not working I take care of my daughter.
The trial court was within its discretion determining that appellants injected the issue of poverty and financial hardship into the case. These statements indicated that Hill had trouble paying his bills until he was able to begin working, and then still was financially constrained after beginning to work again. Thus, trial court could determine that Hill=s testimony was inconsistent with the receipt of benefits. See Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902, 907B08 (Tex. App.CHouston [14th Dist.] 1990, no writ) (affirming trial court=s refusal to admit evidence of collateral sources when testimony was only a general reference to plaintiff=s financial condition and did not amount to evidence inconsistent with the receipt of benefits). CCI was therefore permitted to rebut that false impression. See Taylor, 132 S.W.3d at 628; Mundy, 783 S.W.2d at 745. The trial court did not abuse its discretion in admitting the evidence of social security disability payments for the limited purpose of rebutting appellants= suggestion of financial hardship and poverty. We overrule appellants= third issue.
IV. Improper Jury Argument
In their final issue, appellants argue CCI=s closing argument outlined above was improper and harmful so as to require reversal and remand for a new trial. We agree the jury argument was improperCas did the trial courtCbut disagree that it was harmful requiring reversal. Although CCI contends it was entitled to argue the evidence before the jury, it has cited no authority for the proposition that evidence admitted for a limited purpose may be argued to the jury outside of that purpose and in a wholly inappropriate way. However, as the argument concerned damages questions, which the jury did not reach, and because we presume the jury followed all instructions, we cannot conclude the improper comments caused harm.
The trial court admitted two types of evidence during the trial regarding collateral sources of income. The first was testimony from Dr. Duval=s video deposition in which he stated Hill=s bills were paid by Medicare. The second was the rebuttal testimony regarding social security disability payments. Both represent testimony on collateral sources of income. The testimony regarding Medicare was admitted without objection.[7] However, evidence of the social security disability payments was admitted over objection, for a limited purpose. Thus, any use of that evidence outside of that limited purpose was improper.
A. Mention of Collateral Sources Does Not Automatically Render Verdict Improper
When collateral sources of income are mentioned at trial, it does not automatically require reversal. Cf. Babcock v. Nw. Mem=l Hosp., 767 S.W.2d 705, 708 (Tex. 1989) (stating that the mere mention of insurance does not automatically require reversal). There are four factors that must be satisfied before we will reverse the judgment on the basis of a jury argument: (1) argument was improper; (2) such argument was neither invited nor provoked; (3) preservation of the error by proper trial predicate; and (4) incurability of the error by instruction, withdrawal of the statement, or a reprimand by the trial judge. Brown v. Hopkins, 921 S.W.2d 306, 318 (Tex. App.CCorpus Christi 1996, no writ) (citing Standard Fire Ins., Co. v. Reese, 584 S.W.2d 835, 839B40 (Tex. 1979)). The Brown court also acknowledged that any error would be harmless if the questions affected were rendered immaterial. See id. at 318B19 (overruling issue because jury=s answer to a particular question was immaterial in light of its answer of no negligence and no proximate cause on previous answers); see also Riggins v. Broach Stations, Inc., 14-94-00086-CV, 1996 WL 50596, at *2 (Tex. App.CHouston [14th Dist.] February 8, 1996, no writ) (not designated for publication) (holding that when the jury finds against the claimant on liability and does not reach damages, any error in violating the collateral source rule is harmless). Here, both bases suffice to overrule this issue. The harm was cured, and the issue became immaterial in light of the jury=s apportionment of negligence.
The first three Standard Fire factors are satisfied in this case. The argument was improper, it was neither invited nor provoked, and the issue was properly preserved by an objection an adverse ruling from the trial court. The fourth factor, however, weighs against Hill. The trial court sustained Hill=s objections to the mention of both collateral sources, Medicare and social security disability payments. The trial court also instructed the jury twice that it was not to consider collateral sources for any matter whatsoever; those instructions were in addition to the charge, which the trial court orally explained also mandated that the jury not reduce any award of damages due to collateral sources. Although the trial court did not reprimand CCI=s counsel in front of the juryCwhich clearly would have been appropriateCit presumptively cured the error. We presume that jurors follow the instructions they are given. Taylor, 132 S.W.3d at 625. Absent evidence to the contrary, we must presume the jury did not take any collateral source evidence into account when reaching its verdict.
The second basis for affirmance is that the argument concerned damages only, an issue at trial rendered immaterial in light of the jury=s apportionment of negligence. See Brown, 921 S.W.2d at 318; Riggins, 1996 WL 50596, at *2. Hill forcefully argues that the statement infected the jury=s consideration of negligence, and so cannot be separated. Hill cites no authority for this proposition. However, he does make a logical argument that CCI=s jury argument was engineered to prejudice the jury into believing Hill was simply a malingerer. Also, the jury argument carried with it an implication that Hill was a liar who was collecting cash payments so as to defraud the government. The statements leading to the first mention of Medicare concern CCI=s position that A[CCI is] sorry, [but] they are not being straight with you.@ CCI then goes on to make the two contested statements. Both carry the implication that the financial impact of Hill=s situation is being taken care of by other sources, that he is a malingerer, and that he has engineered his situation so as to receive government benefits, a paycheck, and legal relief. Yet, we cannot presume the jury actually adopted this view, that it ignored the trial court=s instructions, and instead considered evidence on one issue when deciding another issue.[8]
We presume the jury followed the trial court=s instructions and admonitions. The trial court gave appropriate curative instructions and orally charged the jury that they were not to consider the collateral sources of income in reaching their verdict. Moreover, the improper jury argument concerned damagesCquestions the jury never reached. We cannot, therefore, determine that there was any harm from the improper argument. We overrule appellant=s final issue.
Conclusion
We hold that the evidence of OSHA regulations, citations, and fines paid were irrelevant to the issues of this case. The trial court properly excluded that evidence. Evidence from certified OSHA records was also inadmissible for purposes of impeachment. We further conclude because appellants injected poverty and financial hardship into the case, the trial court did not err in permitting rebuttal evidence on this point. Finally, we hold that, despite CCI=s improper jury argument, there was no harm because the trial court cured any error and the jury=s resolution of the liability issue made immaterial any harm resulting from improper jury argument about damages. We affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed August 31, 2006.
Panel consists of Justices Hudson, Fowler, and Frost.
[1] Although there are multiple appellants, because they all assert derivative claims, we will refer to them collectively as AHill@ or AAppellants.@
[2] CCI has only four employees, a president, vice-president, an accountant, and an assistant to the accountant. At times, CCI also employs project supervisors. However, CCI does not directly employ roofers as employees; its roofers are subcontractors.
[3] Hill also sued other defendants, but those defendants were not parties to the lawsuit below.
[4] The trial court admitted ample evidence of industry standards concerning appropriate fall protection and when that fall protection is required. These standards are the same as the standards under OSHA. Introducing evidence of OSHA standards for the purpose of showing the cumulative wisdom of the industry is permissible. See Carillo v. Star Tool Co., 14-04-00104-CV, 2005 WL 2848190, at *2 (Tex. App.CHouston [14th Dist.] November 1, 2005, no pet.) (not designated for publication). However, the trial court did not allow OSHA regulations and standards to be admitted for any other purpose. As we explain below, the ruling was proper as the regulations Hill sought to admit did not bear on the issue of safety. Therefore, we do not believe this general rule of admissibility applies in this case.
[5] Additionally, the OSHA regulations likely would have only confused and misled the jury into believing that CCI had a federally mandated duty to Hill that it should enforce in this suit.
[6] The trial court determined that Kent=s testimony during the deposition was not necessarily deceitful or evasive. We need not determine whether this ruling was correct as Hill=s proffered method of impeachment would have been improper here.
[7] Clearly, given the context in which Dr. Duval discussed Medicare payment, the purpose for its admission was to show that he was not a doctor bought by plaintiffs= attorneys. Yet, there is no objection or request for a limiting instruction in the record. Thus, we cannot say there was any limitation on its use. However, the trial court sustained an objection to the use of this evidence during jury argument for an improper purpose and appropriately instructed the jury regarding its use, presumptively curing any error.
[8] The jury was instructed in the charge that it must not decide who it thought should win the case and answer the questions accordingly. Again, we presume the jury followed these instructions.