NUMBER 13-14-00377-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
UNITED SCAFFOLDING, INC., Appellant,
v.
JAMES LEVINE, Appellee.
On appeal from the 172nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
Appellant United Scaffolding, Inc. (USI) raises two issues on appeal (1) asserting
that there was charge error in the submission of a general negligence claim as opposed
to a claim for premises liability, and (2) challenging the trial court’s order granting appellee
James Levine’s motion for new trial.1 We affirm.
I. BACKGROUND
In a day where civil cases rarely make it to trial, this case has proven the
exception—twice. Many of the underlying facts are undisputed. Valero Energy
Corporation (Valero) owns and operates a refinery in Port Arthur, Texas. USI is a
contractor that provides scaffolding for Valero at its Port Arthur location. Levine, a Valero
employee, worked at the refinery as a pipefitter. On December 26, 2005, Levine
attempted to perform a task at the Valero facility that required the use of a scaffold
provided by USI.
According to OSHA requirements, a “competent person” must inspect the
scaffolding before any work can be performed on any given day. USI contends that
pursuant to its agreement with Valero, Valero is required to notify USI of its intent to use
a USI scaffold, following which a USI employee qualified as a “competent person” is to
inspect the structure as required by OSHA and Valero. However, Valero did not notify
USI of its intent to use the subject scaffold on December 26, 2005, and no USI employee
inspected the scaffold before its use. Levine testified that he checked the scaffold “tag”
before he began work, and the tag indicated that the scaffold had been inspected that
day.2 While on the scaffold, Levine stepped on a piece of plywood that was not nailed
down. The plywood slid, and Levine fell through a hole on the floor of the scaffold but
1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through Ch. 46, 2015 R.S.).
2 As per Valero policy, there was a document attached to the scaffold that indicated when the last
inspection had occurred and who performed the inspection. Neither Valero nor USI preserved the tag as
evidence, and the identity of the last person to inspect the scaffold is unknown.
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was able to catch himself with his arms. Levine allegedly suffered injury as a result of
his fall.
Levine filed suit against USI on negligence and premises liability grounds. The
case was first tried before a jury in December of 2008. A general negligence question
was submitted to the jury, and the jury found USI negligent. The jury determined that
USI was 51% negligent and Levine was 49% negligent and awarded Levine $178,000 in
damages for future medical expenses. The jury entered findings of zero damages for
Levine’s other damage claims, including his claims for past medical expenses, past pain
and suffering, and past and future mental anguish.
Levine filed a motion for new trial asserting that the jury’s findings of zero damages
as to all but future medical expenses were against the great weight and preponderance
of the evidence. The trial court agreed and granted Levine’s motion for new trial. USI
filed a petition for writ of mandamus with the Ninth Court of Appeals alleging that the trial
court abused its discretion in granting a new trial, which was denied. Upon further
review, the Texas Supreme Court agreed with USI and conditionally granted the writ,
directing the trial court to provide the specific bases for its order granting the new trial. 3
The trial court amended its order. USI again filed a petition for writ of mandamus
asserting that the trial court’s amended order failed to comply with the Texas Supreme
Court’s instruction. This petition for writ of mandamus also went to the Texas Supreme
Court and the court again conditionally granted the writ.4 The trial court entered a second
3 That proceeding can be located at In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010)
(orig. proceeding).
4 That proceeding can be located at In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012)
(orig. proceeding).
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amended order granting Levine’s new trial.5 USI did not file a third petition for writ of
mandamus.
The case was tried for the second time in February of 2014. The jury again found
USI negligent, but this time determined that Levine was not contributorily negligent and
assessed damages of over $1,920,000 for Levine. The trial court entered judgment on
the verdict, and this appeal followed.
II. PREMISES DEFECT V. GENERAL NEGLIGENCE
By its first issue, USI contends that the court’s charge erroneously submitted a
negligence question instead of a premises liability question. In response, Levine asserts
that USI waived any alleged charge error for failure to object to the charge before it was
submitted to the jury. Levine further responds that his negligence claims against USI
were appropriate because USI did not have control of the premises when his injury
occurred. Assuming without deciding that the issue is properly preserved, we agree with
Levine that the negligence question was appropriate.
Whether a condition is a premises defect is a legal question. City of San Antonio
v. Parra, 185 S.W.3d 61, 63 (Tex. App.—San Antonio 2005, no pet.) (citing Tex. Dep’t of
Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex.2002)). We review legal questions de
novo. Reliance Nat. Indem. Co. v. Advanced Temporaries, Inc., 227 S.W.3d 46, 50 (Tex.
2007).
It is well recognized that a negligence finding is not sufficient if the case is one of
5 We note that the Texas Supreme Court had not yet expanded the scope of appellate review to
include a review of the merits when the trial court signed its second amended order granting Levine’s motion
for new trial on November 2, 2012. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 759 (Tex.
2013) (orig. proceeding)
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premises defect. See Clayton W. Williams, Jr., Inc. v. Olivio, 952 S.W.2d 523, 528–29
(Tex. 1997). Premises liability and negligence are two distinct theories of liability and
involve different elements to be proven. See id; City of San Antonio v. Parra, 185 S.W.3d
61, 63 (Tex. App.—San Antonio 2005, no pet.) The difference between the two is long
established and well defined—injury by an ongoing activity is ordinary negligence where
injury by a hazardous condition constitutes premises liability. See Keetch v. Kroger Co.,
845 S.W.2d 262, 264 (Tex. 1992); H.E. Butt Grocery Co. v. Warner, 845 S.W.2d, 258,
259 (Tex. 1992).
Traditionally, premises defect cases have applied strict liability to hold a possessor
of land liable for physical harm caused to invitees by a condition on the land if, but only if
the landowner:
(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of
harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). A defendant other
than a landowner can be held responsible based on the same standards as the landowner
if the defendant controls the premises. Thornhill v. Ronnie’s I-45 Truck Stop, 944 S.W.2d
780, 788 (Tex. App.—Beaumont 1997, writ dism’d by agr.). Control in this context is
defined as “the power or authority to manage, direct, superintend, restrict, regulate,
govern, administer, or oversee.” County of Cameron v. Brown, 80 S.W.3d 549, 553 (Tex.
2002) In addressing the issue of control, the supreme court has held that “a premises
liability defendant may be held liable for a dangerous condition on the property if it
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‘assumed control over and responsibility for the premises,’ even if it did not own or
physically occupy the property. Id. “The relevant inquiry is whether the defendant
assumed sufficient control over the part of the premises that presented the alleged danger
so that the defendant has the responsibility to remedy it.” Id.
Both parties agree that a determination of “control” is central to our analysis of this
issue and further agree that “control means the authority to manage, direct, superintend,
restrict, regulate, govern, administer, or oversee.” See id. USI’s argument that it
controlled the premises and that, therefore, a general negligence question was improper
is based, in part, on the fact that it owned the scaffold in question, its relationship with
Valero was a continuing one, and it was contractually obligated to inspect its scaffolds
upon request. However, USI failed to direct this Court to any contractual provision that
stated that USI was the only entity able to provide a “competent person” to inspect the
subject scaffolds before work could be done, and the testimony at trial did not support
USI’s position that only a USI “competent person” could inspect the scaffold or that USI
had control of the scaffold on the day of the incident.
Our review of the evidence shows that on December 26, 2005, Valero—not USI—
maintained “control,” as set forth in Brown, because it had the power and authority to
manage, direct, superintend, regulate, and oversee the subject scaffold. See id. A
Valero supervisor was present and overseeing the operations requiring the use of the
scaffold by two Valero employees, one of which was Levine. Levine and his co-worker
followed Valero scaffold policy as opposed to USI scaffold policy as evidenced by the fact
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that they were not wearing fall protection as required by USI’s policy.6 USI also followed
Valero’s policy and procedures in the construction and maintenance of the scaffold,
performed scaffold inspections upon Valero’s request, and followed Valero’s “tagging”
procedure to notate the scaffold’s inspection status and to identify any dangerous
conditions.
In addition, though USI might have owned the scaffold, based on the above factors
and testimony elicited at trial, USI was not “responsible” for the scaffold on the day of the
incident because the scaffold was not under USI’s control. USI’s Valero site safety
coordinator, Kenneth P. Broussard Jr., testified on direct examination as follows:
Question: Other than United Scaffolding, who wasn’t there, who else at
Valero had competent people that could inspect the scaffold?
Answer: Valero.
Question: If Valero went to this scaffolding on the backside of the
exchanger and inspected that scaffolding, whose scaffolding
does that become?
Answer: Not ours because we didn’t inspect it.
Question: Does that become a Valero scaffold?
Answer: The responsibility, yes.
Not only does Broussard’s response clearly indicate that Valero was capable of inspecting
the subject scaffolding, but Broussard also directly stated that Valero potentially bore
responsibility for the scaffold in question, negating USI’s position that it solely controlled
the premises.
Because the relevant inquiry in determining whether a claim sounds in general
6USI would have required employees to wear “fall protection.” Valero did not require its
employees to wear fall protection on the scaffold at issue.
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negligence or premises defect is “whether the defendant assumed sufficient control over
the part of the premises that presented the alleged danger so that the defendant has the
responsibility to remedy it”—we determine that USI did not have a level of control
sufficient to establish a premises defect claim. See Brown, 80 S.W.3d at 553. As
Levine’s claim was for negligence and was not one of premises defect, the negligence
question submitted to the jury was proper. We therefore determine there was no error
in the charge warranting reversal. We overrule USI’s first issue.
III. MOTION FOR NEW TRIAL
By its second issue, USI contends that the trial court abused its discretion when it
granted Levine’s motion for new trial. Specifically, USI contends that there was sufficient
evidence supporting each jury finding and the trial court “invaded the province of the jury”
by granting Levine a new trial. Levine contends that the trial court’s grant of his motion
for new trial is not properly before this Court because a merits-based review is appropriate
only via petition for writ of mandamus. In the alternative, Levine argues that the trial
court did not abuse its discretion in finding that the jury’s damage findings were against
the great weight and preponderance of the evidence and granting a new trial.
USI urges this Court to apply a merits-based review of the trial court’s order
granting a new trial in the context of appellate review of a final judgment. However, there
are limited exceptions to the general rule that an order granting a motion for new trial
rendered within the period of the trial court's plenary power is not reviewable on appeal,
either by direct appeal from the order or from a final judgment rendered after later
proceedings. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.
2005); Hull v. South Coast Catamarans, 365 S.W.3d 35, 40 (Tex. App.—Houston [1st
8
Dist.] 2011, pet. denied); Pagare v. Pagare, 344 S.W.3d 575, 583 (Tex. App.—Dallas
2011, pet. denied). There are three recognized instances in which a Texas appellate
court has overturned a trial court's grant of a new trial: (1) when the trial court's order
was wholly void; (2) when the trial court specifically based its new trial order on an
irreconcilable conflict in answers to jury questions and the answers were not in conflict;
and (3) when the trial court did not specifically state its reasons for granting a new trial.
See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209, 213
(Tex. 2009); Wilkins, 160 S.W.3d at 563; Hull, 365 S.W.3d at 40–41.
Though the Texas Supreme Court has recently expanded the scope of appellate
review of an order granting a motion for new trial via mandamus, we do not find that its
holdings permit direct appeal of an order granting a new trial once the order has merged
into a final judgment. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 759
(Tex. 2013) (orig. proceeding) (“[T]he reasons articulated in a new trial order are subject
to merits-based mandamus review.”) (emphasis added) In re Columbia Med. Ctr., 290
S.W.3d at 209;; see also Kirk v. State, 454 S.W.3d 511, 515–16 (Tex. Crim. App. Mar.
25, 2015) (Alcala, J., concurring) (citing In re Columbia Med. Ctr. and recognizing that in
the civil context an order granting a new trial cannot generally be appealed). Therefore,
because USI does not contend on appeal that the order granting a new trial fell into one
of the recognized exceptions above, it is not subject to appellate review via direct appeal.7
7 The trial court granted Levine’s motion for new trial before the supreme court handed down In
re Toyota, which allowed merits-based mandamus review of orders granting a new trial. See In re Toyota,
407 S.W.3d 746, 759 (Tex. 2013) (orig. proceeding). Based on our review of the record from the first trial,
we note that the trial court in this case was within its discretion, on at least one ground, in granting a new
trial because the jury’s award of zero damages for past medical expenses was against the great weight and
preponderance of the evidence. See In re Lufkin Indus., Inc., 317 S.W.3d 516, 520–21 (Tex. App.—
Texarkana 2010, orig. proceeding).
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See Wilkins, 160 S.W.3d at 563. We do not reach USI’s second issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 1st
day of September, 2015.
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