Opinion issued October 20, 2011.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00867-CV
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AMIGOS mEAT dISTRIBUTORS, l.p., Appellant
V.
mARIO eLIZONDO, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2008-20479
MEMORANDUM OPINION
Amigos Meat Distributors, L.P. appeals a judgment in favor of its employee Mario Elizondo, who was injured in the course of his employment. After a jury trial, the trial court rendered judgment on the verdict awarding Elizondo damages in the amount of $123,723.36. In three issues, Amigos contends that it owed no duty to Elizondo. We conclude that the trial court properly found that Amigos owed a duty to Elizondo. We therefore affirm.
Background
Mario Elizondo was an employee of Amigos Meat Distributors, L.P., which was a worker’s compensation insurance non-subscriber. Elizondo previously owned and operated his own meat cutting business, Texas Meats, which went out of business. Amigos purchased a meat cutting plant, TG Meat Plant, and hired the plant’s former owner, Tony Garcia, as the new plant manager. Amigos also hired Elizondo as a meat cutter because of his experience cutting frozen meat. Elizondo provided Garcia, who was inexperienced, with assistance in setting up the plant and learning to cut frozen meat. When he began working at the meat plant, Elizondo requested gloves due to the temperature of the meat, and Garcia provided him with them. The gloves, according to Elizondo and Garcia, help the cutter work more quickly to produce more cuts. Elizondo had always used gloves while cutting frozen meat.
Elizondo further suggested the type of meat cutting saws that should be used. When Elizondo started at Amigos, Amigos was using Hobart brand saws. Elizondo requested Garcia purchase a Biro brand meat cutting saw. Elizondo had used a Biro brand saw throughout his previous eight years of meat cutting experience. The saw had a pusher tool to assist the operator with cutting meat, but Elizondo did not use it. Elizondo continued to use gloves with the Biro saw.
The Biro saw came with a manual. The manual stated that gloves should not be worn while using the saw and that pig’s feet should not be cut with the saw. Additionally, the manual stated that the pusher tool should always be used for smaller products or the last cuts of product. Garcia read the manual and was aware of its contents. Elizondo testified that Garcia did not relay the warnings in the manual and did not provide a copy of the manual. Garcia testified that he did not show the manual and the warnings to Elizondo because he assumed that Elizondo had read the manual at some previous point considering he had used similar saws in the past.
Elizondo’s injury occurred at 3:30 p.m. on a Monday after Elizondo was off for the previous two days. Elizondo was cutting beef feet and was wearing gloves on his hands. Garcia testified that beef feet and pig’s feet use the same cutting technique and the safety warning regarding pig’s feet would likely have applied to beef feet as well, making it unsafe to use the Biro saw to cut beef feet. Additionally, Garcia testified that deviations from the safety manual may be unsafe. As Elizondo was cutting the beef feet, his glove got caught in the saw and pulled his hand into the blade causing his injury. The jury found Amigos was negligent and awarded damages in the amount of $123,723.36 to Elizondo. Amigos moved for a judgment notwithstanding the verdict on the question of legal duty, and the trial court upheld the jury’s finding in favor of Elizondo.
Law Applicable to Worker’s Compensation Non-Subscribing Employers
In order for an employee to recover from an employer who is a non-subscriber under the Texas Worker’s Compensation Act, the employee must establish negligence on the part of the employer. Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. Id. The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
The existence of duty is a question of law for a court to decide from the facts surrounding the occurrence in question. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “The existence of duty is a question of law when all of the essential facts are undisputed, but when the evidence does not conclusively establish the pertinent facts or the reasonable inferences to be drawn therefrom, the question becomes one of fact . . . .” Mitchell v. Missouri-Kansas, Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990) (quoting Bennett v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.)); see also Sanders v. Herold, 217 S.W.3d 11, 15 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Mitchell).
The test for legal sufficiency of evidence to support a fact is whether the evidence would enable reasonable and fair-minded people to determine the fact exists. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The reviewing court considers the evidence in the light most favorable to the judgment, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not. Id. at 807. Evidence is legally insufficient when the record discloses a complete absence of evidence of a vital fact, the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a scintilla, or the evidence conclusively establishes the opposite of a vital fact. Id. at 810.
Employee’s Fatigue
In its first issue, Amigos contends that it had no duty to warn Elizondo of the dangers of working while fatigued. Amigos acknowledges that the major thrust of Elizondo’s case concerned whether Amigos had a duty to warn or train Elizondo concerning the dangers of cutting beef feet while wearing gloves but, because of the broad form negligence question posed to the jury, addresses this issue “out of an abundance of caution.” Elizondo concedes that the jury’s verdict may not be upheld on this theory because no evidence supported a finding that Elizondo’s fatigue caused the accident. We agree that the judgment cannot be upheld on this basis. Accordingly, we turn to the other bases for the trial court’s judgment, which Amigos also challenges on appeal.
Duty to Warn or Train
In its third issue, Amigos contends that it owed no duty to warn, train, or otherwise safeguard Elizondo because he was an experienced meat cutter who was hired because of his experience.
An employer has a duty to “warn an employee of the hazards of employment and provide needed safety equipment or assistance.” Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 568 (Tex. 2007). An employer has a “duty to warn or caution an employee of a danger” when (1) ‘the employment is of a dangerous character requiring skill and caution for its safe and proper discharge,” and (2) “the employer is aware of the danger and has reason to know the employee is unaware.” Nat’l Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.). However, an employer is not an insurer of its employees’ safety. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). An employer therefore does not owe a duty “to warn of hazards that are commonly known or already appreciated by the employee.” Jack in the Box, 221 S.W.3d at 568–69 (quoting Elwood, 197 S.W.3d at 794). In looking to the scope of this duty, the employee’s age and experience should be considered. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 412 (Tex. 2009).
In this case, Amigos’s expert testified that wearing gloves while operating the saw posed a danger. There is evidence that Amigos was aware that using gloves while operating the saw presented a danger, because Garcia read the manual that came with the saw. The manual specifically stated that gloves should not be worn while operating the meat cutter. By contrast, although Elizondo was an experienced meat cutter and aware that operating a meat cutter is dangerous generally, there is no evidence that he knew about the risk of wearing gloves while operating this meat cutter. Garcia assumed that Elizondo had previously reviewed the manual and that Elizondo was aware of the risk of wearing gloves while operating the meat cutter. There is evidence, however, that Elizondo was unaware of the danger of wearing gloves. Elizondo testified that he was not shown the manual and was not warned that wearing gloves posed a danger. He further stated that he did not know wearing gloves was dangerous and we would not have done so if he had been warned. In sum, the jury reasonably could have found that Amigos, through Garcia, was aware of the danger of wearing gloves while operating the meat cutter (Garcia had read the manual), and that Garcia had reason to know that Elizondo was unaware of the risk of wearing gloves while operating the meat cutter (Garcia knew that Elizondo was acting contrary to the warning in the manual). Thus, the evidence supports a finding that Amigos was aware of the danger and of which it had reason to know Elizondo was unaware. See City of Keller, 168 S.W.3d at 807. Under those facts, Amigos had a duty to warn Elizondo of the danger. See Nat’l Convenience Stores Inc., 987 S.W.2d at 149 (duty to warn exists when “the employer is aware of the danger and has reason to know the employee is unaware”).
We overrule Amigos’s third issue.
Alternate Safe Method
Amigos, in its second issue, argues that Elizondo chose to use an alternate method to perform his job where a safe method was provided to him. Specifically, Amigos contends that because a pusher tool was available to Elizondo, it is not responsible for Elizondo’s decision not to use the pusher tool, and its negligence in failing to train Elizondo did not cause his injury.
“Where an employer provides its employee with at least one safe way to perform her assigned tasks and the employee chooses to perform the task by a different method, thereby injuring herself, the employer is not liable.” Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex. App.—Texarkana 1996, writ denied) (citing Great Atl. & Pac. Tea Co. v. Lang, 291 S.W.2d 366, 367–68 (Tex. Civ. App.—Eastland 1956, writ ref’d n.r.e.)). When, however, there is evidence that the employer failed to instruct its employees on how to perform their jobs while avoiding known safety risks, an employer may still be liable. See id.
The jury heard evidence that Amigos was aware that the pusher tool should be used, but that Elizondo did not use it. The manual, which Garcia read, states “ALWAYS Use Supplied Safety End Cut Pusher Plate for Smaller Products or The Last Cuts of Product.” But Elizondo testified that he was not shown the manual. In fact, Elizondo testified that, based on his experience, he thought it was dangerous to use the pusher tool to cut feet. The jury also heard testimony from Amigos’s industrial safety expert that the failure to use the pusher plate was the most important factor that contributed to Elizondo’s accident. He also testified that it was Amigos’s responsibility to ensure Elizondo and the other employees used the pusher tool and were properly trained on how to use the saw. Additionally, the jury heard some evidence that cutting beef feet was not safe even with the pusher tool. Elizondo testified that he thought it was unsafe to use the pusher tool to cut feet. The jury also heard testimony that cutting pig’s feet is similar to cutting beef feet, and the manual specifically stated, “DO NOT Use This Machine to Cut Pig[’]s Feet.” Garcia stated that, because of the similarities between beef feet and pig’s feet, the saw should probably not be used on beef feet. There was some evidence before the jury to show that cutting beef feet was not safe even with the pusher tool and that Amigos failed to instruct Elizondo in a safe method to avoid known safety risks. Therefore, the evidence supports a finding that Amigos breached its duty to provide a safe method to Elizondo, and that it was a substantial factor in causing his injury. See id.; see also B-Line Filter & Supply Co. v. Cagiano, No. 08-99-00468-CV, 2001 WL 1249263, at *3 (Tex. App.—El Paso Oct. 18, 2001, pet. denied) (not designated for publication) (holding employee’s testimony that employer did not instruct him on safe method to carry out his task created fact issue for jury to resolve on whether employer instructed employee in a safe method of performing the work). The issue of whether Elizondo’s failure to use an alternative method caused his injury, rather than improper training, was properly left to the jury to resolve.
We overrule Amigos’ second issue.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.