United States Court of Appeals
Fifth Circuit
F I L E D
REVISED FEBRUARY 10, 2005
February 9, 2005
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-40230
DALTON ARSEMENT, JR., ET AL.,
Plaintiffs,
DALTON ARSEMENT, JR.,
Plaintiff-Appellee,
versus
SPINNAKER EXPLORATION COMPANY, LLC, ET AL.,
Defendants,
SPINNAKER EXPLORATION COMPANY, LLC; JOE NOWICZEWSKI,
Individually, and doing business as NOVA CONSULTING SERVICES;
WHITE WING CONSULTANTS,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE, GARZA, and DEMOSS, Circuit Judges.
RHESA H. BARKSDALE, Circuit Judge:
Spinnaker Exploration Company, Joe Nowiczewski, individually
and doing business as Nova Consulting Services, and White Wing
Consultants appeal the denial of their motions for judgment as a
matter of law (JMOL) and new trial. Those motions contest the jury
verdict in favor of Dalton Arsement’s claims arising under the
Outer Continental Shelf Lands Act, 43 U.S.C. § 1349 (OCSLA)
(applying Texas law), concerning his being injured on an offshore
drilling platform while employed by one of Spinnaker’s contractors,
Production Hook-Up Services (PHS). Arsement did not respond to the
post-trial motions, which were denied only three days after being
filed. In the denial-order, the district court improperly
prohibited additional motions being filed in district court.
For JMOL: Spinnaker, the platform owner, claims Arsement
failed to prove liability against it under Chapter 95 of the Texas
Civil Practice and Remedies Code (Chapter 95) (protecting property
owners from liability to employees of contractors constructing
improvements to owners’ real property); two of Spinnaker’s
contractors, White Wing and Nova, claim Arsement did not make the
requisite showing of control for common-law liability under
Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985); and
Nowiczewski claims no liability can attach to him individually
(unless Nova, his sole proprietorship, is liable). Concerning JMOL
for Spinnaker, a key issue is whether, in its post-trial motion, it
could rely for the first time on Chapter 95.
For new trial, defendants claim: the verdict was against the
great weight of the evidence; and the district court erred by
refusing a requested sole-cause jury instruction as to the
liability of Arsement’s employer, PHS.
2
JMOL should have been granted to defendants. Accordingly, we
need not reach the new trial claims. The district court is again
directed not to prohibit motions being filed in district court
after it rules on post-trial motions. VACATED and RENDERED.
I.
When injured, Arsement was employed as a welder by PHS, an
independent contractor engaged by Spinnaker to refurbish an oil and
gas production platform it owned and operated in the Gulf of
Mexico. Spinnaker engaged Nova to identify needed refurbishments
on the platform and ensure owner-contractor contract compliance for
the installation of various pre-fabricated products on the
platform. Nova, in turn, engaged White Wing Consultants to inspect
the refurbishment project for safety and contract compliance.
Arsement was injured on 2 November 2000, only his second day
on the platform, during installation on the platform of a sump
deck, a pre-fabricated structure. The sump deck, measuring
approximately 20 by 10-15 feet and weighing approximately six tons,
was to be installed as the lowest of the platform’s three decks,
below the production (middle) and main (top) decks. The sump deck
had been brought to the platform’s location near the Texas
coastline and placed on a jack-up vessel along side the platform.
Two different plans were devised to install the sump deck.
“Plan A” utilized the jack-up vessel. It was to take the sump
deck under the platform and, using the jack-up vessel’s crane, lift
3
the sump deck to the desired height. Once the sump deck was at the
ten-plus level (the lowest tier of the platform below the
production deck), workers would pull it into place with pneumatic
winches (air-tuggers) and weld it on the platform.
Under “Plan B”, the sump deck would instead be lifted, using
the jack-up vessel’s crane, from the jack-up vessel to the main
(top) deck of the platform. The main deck’s crane would then be
used to lower the sump deck along side the platform to the ten-plus
level (the lift). Air tuggers attached to, and hanging below, the
production (middle) deck would then pull the sump deck under the
production deck and into place for welding.
Plan B was selected. Arsement was designated by Menard, his
PHS supervisor, to be the signalman for the lift (again, on only
his second day on the platform). Menard was not a certified crane
operator. For the events leading to his injury, Arsement gave the
following testimony.
Menard operated the crane on the main deck, with Arsement
signaling to Menard from a stairwell on the outside of the
platform, below the production deck. Once the sump deck was
lowered to the production (middle) deck level, Arsement attached
the air tuggers to the sump deck and returned to his signaling
position below the production deck. After the sump deck had been
lowered past his signaling position, however, several men moved to
stand above him on the stairwell, inadvertently blocking Arsement’s
4
view of Menard at the crane controls. (On the other hand, Menard
testified Arsement was never out of his line of sight.) Arsement
asked the men to move, and they did move out of the way for a short
time, but then moved back in his line of sight. When the men moved
back, they began to “yell[] about the [emergency shutdown device
(ESD)] line”, which was near Arsement’s position and which, if
ruptured, would shut down the entire platform. These warnings,
given by men in a superior vantage point to the ESD line, made
Arsement worry the 500-pound block attached to the crane’s line to
steady its load (and below which the sump deck was attached) was
about to hit and sever the ESD line. Arsement moved up several
steps to get a better view. From this position, to avoid the ESD
line being ruptured by the block, Arsement attempted to steady the
block; to do so, he lifted his foot above the handrail and used his
foot to push the block out of the way.
Once Arsement’s foot was on the block, however, the crane
stopped lowering without Arsement’s instruction. (On the other
hand, Menard testified he never stopped the crane.) Arsement felt
he could not move his foot without causing the block to swing out
and, when it swung back, perhaps destroy the ESD line and handrail.
Therefore, Arsement kept his foot on the block, steadying it; he
planned to signal the crane to start lowering again and then
quickly remove his foot. The crane began lowering the deck again
unexpectedly, however, without signal from Arsement, so that he did
not have time to react before his foot was caught in a pinch point
5
between the crane block and the handrail and was injured. Except
for the injury to Arsement, the lift was completed without
incident.
As all parties agree, this is a Texas situs OCLSA action,
applying Texas law. See Fruge v. Parker Drilling Co., 337 F.3d
558, 560 (5th Cir. 2003), cert. denied, 540 U.S. 1161 (2004) (“ ...
OCSLA adopts the law of the adjacent state....”). Arsement sued
Spinnaker, White Wing, and three Nova entitites (Nova Ventures,
LLC; Nova Technological Services, Ltd.; and Joe Nowiczweski,
individually and doing business as Nova Consulting Services (a sole
proprietorship)). Pre-trial, the claims against two of the three
Nova entities were dismissed without prejudice, with the only
remaining claims as to Nova being against Nowiczweski, individually
and doing business as Nova Consulting Services.
At the three-day trial, Arsement testified; had expert
testimony that Plan A was safer than Plan B; and called as
witnesses, among others, Brown for Spinnaker, Mason for White Wing,
Degroat (by deposition) for Nova, and Menard (by deposition) for
PHS. Concerning his injury, Arsement presented evidence, inter
alia, that it caused a nerve damage condition called reflex
sympathetic dystrophy, a permanent impairment.
At the close of Arsement’s case in chief, each defendant moved
for JMOL under Federal Rule of Civil Procedure 50(a)(1). The
6
motions were denied. Defendants presented one witness, who
testified about the nature of Arsement’s injury.
During the charge conference, the district court refused
Defendants’ requested sole proximate cause instruction, which
attributed all causation to PHS. Defendants renewed their JMOL
motions, pursuant to Rule 50(a)(2), after the jury began
deliberations. The motions were again denied.
In its verdict, the jury apportioned seven percent fault to
Arsement, with the remainder split equally between Spinnaker,
Nowiczweski (individually and doing business as Nova,
collectively), and White Wing; therefore, each was found 31 percent
liable. After discounting the judgment for Arsement’s fault, the
court entered a verdict in Arsement’s favor for, inter alia,
approximately $2.5 million. In a separate order responding to
Defendants’ motion for remittitur, the district court confirmed the
apportionment of liability but ordered a new trial unless Arsement
agreed to accept an award of, inter alia, approximately $1.7
million. Arsement did so. The district court entered final
judgment on 27 January 2004.
On 10 February 2004, defendants moved for JMOL pursuant to
Rule 50(b). In doing so, Spinnaker invoked Chapter 95 for the
first time, claiming Arsement did not present sufficient evidence
for liability under the Chapter. Nova, Nowiczewski, and White Wing
renewed their contentions that Arsement did not prove common-law
7
liability against them. Defendants moved, in the alternative, for
new trial, claiming: the verdict was against the great weight of
the evidence; and the district court reversibly erred by refusing
the requested sole cause instruction on PHS’ liability. Arsement
did not file a response. The district court denied the motions by
order signed on 13 February 2004 (three days after filing) and
entered four days later (17 February 2004). That order improperly
prohibited filing additional motions in district court.
II.
Defendants contest the denial of JMOL and new trial. Because
JMOL should have been granted defendants, we need not reach their
new trial claims.
Prior to 1996, Texas common law controlled premises liability
claims by an independent contractor’s employee injured while that
contractor was performing work for either a premises owner or
contractor. The Texas Supreme Court has distinguished between two
types of liability to which an owner or contractor may be exposed
when a third party is injured on the property:
An owner or occupier of land [or contractor]
has a duty to use reasonable care to keep the
premises under his control in a safe
condition.... This duty to keep the premises
in a safe condition may subject the general
contractor [or owner] to direct liability for
negligence in two situations: (1) those
arising from a premises defect, (2) those
arising from an activity or instrumentality.
8
Redinger, 689 S.W.2d at 417 (emphasis added). The standards for
premises defect liability and negligent activity liability are
different. Redinger controls the latter. Id.
A property owner or contractor was liable for negligent
activity only if it controlled the independent contractor’s methods
of work and failed to take reasonable care for such control.
See id. at 418. Rendered in 1985, Redinger adopted the Restatement
(Second) of Torts, holding: Although the general rule is that an
owner or contractor does not owe an independent contractor a duty
of reasonable care for the independent contractor’s actions,
[o]ne who entrusts work to an independent
contractor, but who retains control of any
part of the work, is subject to liability for
physical harm to others for whose safety the
employer owes a duty to exercise reasonable
care, which is caused by his failure to
exercise his control with reasonable care.
Id. (citing Restatement (Second) of Torts § 414 (1977); emphasis
added). To trigger liability, the level of control exercised must
be “more than a general right to order the work to start or stop,
to inspect progress, or receive reports”. Id. The Texas Supreme
Court further cabined “control”, holding: “[A]n employer who gives
on-site orders or provides detailed instructions on the means or
methods to carry out a work order owes the independent contractor
employee a duty of reasonable care to protect him from work-related
hazards”. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357
(Tex. 1998) (emphasis added). Again, these common law rules
9
applied to property owners and contractors alike. Redinger, 689
S.W.2d at 418.
In 1996, however, the Texas legislature enacted Chapter 95 to
provide greater protection for property owners against both types
of premises liability claims. As does the common law, Chapter 95
provides that property owners are not liable for injuries to
employees of independent contractors working on the owner’s real
property, or improvements to it, unless, first, the property owner
exercises “control over the manner in which the work is performed”.
See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003(1) (Vernon 2004).
Chapter 95 narrows the property owner’s duty to an independent
contractor, however, by further protecting the owner from liability
unless he: second, has “actual knowledge of the danger ...
resulting in the personal injury”; and third, “fails to adequately
warn” of that danger. § 95.003(2) (emphasis added). Entities
operating offshore oil and gas rigs, as in this action, are owners
under Chapter 95. Francis v. Coastal Oil & Gas Corp., 130 S.W.3d
76, 84 (Tex. App. — Houston [1st Dist.] 2003, no pet.).
A.
It is undisputed that Spinnaker owns and operates the
platform; and that Arsement was renovating or repairing an
improvement to it. Therefore, Spinnaker qualifies as an owner
under Chapter 95. It cited Chapter 95 in its post-trial JMOL
motion.
10
Spinnaker contends: Arsement’s negligent activity claims
against it are controlled by the Chapter; and Arsement failed to
make the requisite showing for liability. Arsement responds that
Spinnaker cannot invoke Chapter 95 post-trial because it failed to
raise the Chapter before final judgment. Spinnaker replies that,
on appeal, Arsement may not raise his objections to Spinnaker’s
invocation of Chapter 95 in its post-trial JMOL motion because
Arsement did not do so in district court in response to that
motion. Therefore, before we can consider liability vel non for
Spinnaker, we must determine: whether Chapter 95 was raised at
trial; and, if not, whether Spinnaker properly invoked the Chapter
in its post-trial Rule 50(b) motion.
1.
Arsement asserts: Chapter 95 cannot apply to his claims
against Spinnaker because that theory of law was not raised at
trial; and because Spinnaker did not mention Chapter 95 in the pre-
trial order, it may not do so post-judgment, absent an amendment to
the pre-trial order. Spinnaker replies that trial was based on
Texas premises liability law, and Chapter 95 is the law controlling
property owners’ liability in these situations. Spinnaker also
maintains: even if Arsement properly raised the issue of
forfeiture of Chapter 95 for trial, his forfeiture claim would be
meritless because Chapter 95 requires no predicate pleading.
11
a.
It goes without saying that a pre-trial order controls the
scope and course of trial; a claim or issue not included in the
order is waived, unless presented at trial without objection. FED.
R. CIV. P. 16(e); e.g. Sobley v. Southern Natural Gas Co., 302 F.3d
325, 333 (5th Cir. 2002); Wallin v. Fuller, 476 F.2d 1204, 1210
(5th Cir. 1973). Chapter 95 was not cited in the pre-trial order,
but each of its elements were present. Arsement specified his
“claims [were] brought pursuant to surrogate Texas substantive law”
and contended: defendants “exerted control over the manner in
which [Arsement] performed his work”; defendants had “actual
knowledge or should have known” that Plan B was dangerous; and one
reason defendants were negligent was their failure to warn him
about the danger of the lift. (Emphasis added.) In that order,
Spinnaker contested Arsement’s claim that it controlled his
activities and stated: “Spinnaker’s liability depends upon a
finding of negligence”. The pre-trial order did not cite Chapter
95, although, obviously, it is a part of “Texas substantive law”,
the term used in the order. Again, the order did discuss the three
elements for liability under Chapter 95: control, knowledge, and
failure to warn. (As noted, Chapter 95 requires actual knowledge;
unlike the common-law standard, constructive knowledge is not
sufficient.)
12
Trial was conducted applying common-law negligence. For
example, the following colloquy occurred at the pre-trial
conference:
Defendants: I understand the law to be, at
least in Texas proceeding, and we’re using --
The Court: Well, is [Outer Continental
Shelf Lands Act] applying Texas law?
Defendants: That’s exactly what this is,
Your Honor.
The Court: All right. So what we’re
applying is premises liability as articulated
by Texas law and restated in the second tort.
(Emphasis added.) As noted above, Redinger adopted the Restatement
(Second) of Tort for negligent activity premises liability cases.
689 S.W.2d at 418. Thus, it appears that the district court
expected to employ principles of common-law liability for all
parties.
Along this line, at trial, Arsement questioned Mason (for
White Wing) whether Spinnaker “failed to properly control, plan,
coordinate and implement a safe plan for the work on its platform
and around with multiple contractors and with personnel”. Further,
at a side-bar conference during Arsement’s case in chief, the
following colloquy occurred:
The Court: The substance of the charge,
what specific law are we applying? Is this
brought under the Outer Continental Shelf
Lands Act and we’re applying contiguous state
law?
Arsement: Yes, Your Honor.
13
The Court: And so that will be Texas law.
Defendants: Correct.
Finally, the jury instructions (prepared by the court) tracked
generic common-law negligence employed in personal injury actions.
In other words, not even the elements for common-law liability
pursuant to Redinger were stated. No party objected.
b.
Pursuant to the above discussion, Chapter 95 was not mentioned
before Spinnaker’s post-judgment JMOL motion; and trial was
conducted applying common-law negligence for all parties.
Spinnaker contends: even if Chapter 95 was not cited at trial, the
trial was conducted nevertheless using Texas premises liability
law; and Chapter 95 is the law applicable to premises owners, such
as Spinnaker, in actions like this. Spinnaker maintains there is
no duty to plead Chapter 95 affirmatively. Arsement claims
Spinnaker cannot introduce a new theory of law without filing a
motion for leave to amend the pleadings under Federal Rule of Civil
Procedure 15(b).
Chapter 95’s plain language does not require an affirmative
pleading. The Chapter states it applies to claims “for damages
caused by negligence” against property owners who “own property
primarily used for commercial or business purposes”. TEX. CIV. PRAC.
& REM. CODE ANN. § 95.001 (emphasis added). Further, Texas courts
have found Chapter 95 is the exclusive remedy for negligence claims
14
of the kind asserted by Arsement against Spinnaker. See Dyall v.
Simpson Pasadena Paper Co., No. 14-01-00432-CV, slip op. at 11, ___
S.W.3d ___, 2003 WL 21664163, *6 (Tex. App. — Houston [14th Dist.]
17 July 2003; motion for rehearing and rehearing en banc pending;
not yet reported) (plaintiffs required to surmount Chapter 95 for
claims sounding in negligence against qualified property owners);
Francis, 130 S.W.3d at 88 (Chapter 95 precludes common-law
negligence claims). Thus, as to Spinnaker, the pre-trial order’s
invocation of “Texas substantive law” and issues of control,
knowledge, and failure to warn, and the court’s noting in the side-
bar during trial the application of “Texas law”, must involve
Chapter 95.
No predicate pleading is required to invoke that Chapter.
Further, it had been in effect for four years before Arsement’s
injury. It goes without saying that every person is presumed to
know the law. E.g., Ramsey v. Georgia-Pacific Corp., 597 F.2d 890,
894 (5th Cir. 1979) (presuming parties were aware of controlling
statute passed four years earlier); Edwards v. U.S., 334 F.2d 360,
366 (5th Cir. 1964), cert. denied, 379 U.S. 1000 (1965). Although
Chapter 95 was not cited prior to Spinnaker’s post-trial JMOL
motion, several of its elements – notably control and actual
knowledge – are also present for common-law liability and underlay
the whole trial.
15
2.
Spinnaker first cited Chapter 95 in its post-trial Rule 50(b)
motion. In other words, it did not cite Chapter 95 as grounds for
its Rule 50(a) motions during trial. Arsement did not file a
response to Spinnaker’s Rule 50(b) motion. Accordingly, he did not
then object to Spinnaker’s raising Chapter 95 for the first time
post-verdict. Nevertheless, Arsement maintains on appeal that
Spinnaker forfeited being able to rely on Chapter 95 in its post-
trial JMOL motion by not citing it in the pre-trial order or at
trial. Spinnaker replies that Arsement is precluded from taking
this forfeiture position on appeal because he did not present it to
the district court in response to Spinnaker’s Rule 50(b) motion.
If a party fails to raise an issue in its Rule 50(a)(1)
motions at trial, it may not do so in its post-trial Rule 50(b)
motion. Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d
278, 284 n.5 (5th Cir. 1999). An exception occurs if the nonmovant
(here, Arsement) fails to raise this forfeiture claim in opposition
to the Rule 50(b) motion; this failure precludes raising the
forfeiture claim on appeal. Thompson and Wallace of Memphis, Inc.
v. Falconwood Corp., 100 F.3d 429, 435 (5th Cir. 1996); see
also Horton v. Bank One, N.A., 387 F.3d 426, 435 (5th Cir. 2004)
(contentions not raised in district court cannot be asserted for
first time on appeal). Because Arsement failed to oppose
16
Spinnaker’s Rule 50(b) motion, he is precluded from raising the
forfeiture claim here.
Although he did not present the following contentions in his
brief, Arsement made them at oral argument, concerning the district
court’s being extremely prompt in denying the Rule 50(b) motion
and, in that denial-order, prohibiting additional motions. No
authority need be cited for the rule that, generally, we do not
consider an issue first raised at oral argument on appeal. That
rule controls here; but, because of the unusual nature of the post-
trial proceedings, we feel compelled to at least present these
contentions. (Even if we were to rule on them, they would fail.)
The motion was filed on 9 February 2004. The district court’s
denial-order was signed four days later on 13 February (filed 17
February 2004). Obviously, because Arsement never responded to the
motion, he did not do so before the court ruled.
Arsement suggested initially that the district court violated
its own local rule by ruling on the motion before 20 days had
passed. Although those rules allow a party 20 days to respond to
a pre-trial motion, see S.D. TEX. LOCAL R. 7.4(A), there is no rule
imposing deadlines on responding to post-trial motions.
Next, Arsement maintained it would be unduly harsh to apply
the on-appeal-can’t-claim-forfeiture rule to a party who does not
respond to a Rule 50(b) motion when the court has ruled so promptly
in that party’s favor. We reiterate: the nonmovant must object in
17
district court when the movant raises an issue in its Rule 50(b)
motion not presented in its Rule 50(a) motions; otherwise, the
nonmovant fails to preserve the forfeiture issue for appellate
review.
Finally, Arsement asserted that, after the district court
ruled so promptly on the JMOL motion, the court’s concomitant
proscription against filing additional motions in district court
prevented his doing so, including objecting to Chapter 95’s being
raised post-trial for the first time. As discussed in part II.C.
infra, Arsement was still required to object, notwithstanding the
court’s improper order.
Because Arsement did not respond in district court to
Spinnaker’s invocation of Chapter 95, Arsement forfeited his
contention that Spinnaker was precluded from raising Chapter 95
post-trial. Spinnaker discussed Chapter 95 in detail in that post-
trial motion. The district court did not address the Chapter in
denying JMOL. Of course, a reviewing court may employ the
controlling law in reviewing the evidence when that law was
presented to the district court, even if not employed by it. See,
e.g., United States v. Generes, 405 U.S. 93, 106 (1972).
Judgment as a matter of law is appropriate when a claim
“cannot under the controlling law be maintained”. FED. R. CIV. P.
50(a)(1). Chapter 95 is the “controlling law” for Arsement’s
18
claims against Spinnaker. Therefore, we employ that Chapter in our
de novo review of the denial of Spinnaker’s post-trial JMOL motion.
B.
Accordingly, concerning JMOL vel non, at issue is whether
Arsement presented sufficient evidence for a reasonable jury to
find (1) Spinnaker liable under Chapter 95; and (2) White Wing,
Nova, and Nowiczewski liable under the common law, as articulated
in Redinger. As discussed, the jury instructions did not state the
controlling law as to Spinnaker (Chapter 95) or as to White Wing,
Nova, and Nowiczewski (Redinger). It is well established, however,
that our review of the JMOL-denial is not restricted to the law as
stated in the jury instructions; instead, our review addresses the
separate question of whether there was sufficient evidence for a
jury to reach its conclusion under the applicable law. See, e.g.,
Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 445-46 (5th Cir. 2001);
Deffenbaugh-Williams, 188 F.3d at 284 & n.5.
We review de novo a JMOL denial. E.g., Bellows v. Amoco Oil
Co., 118 F.3d 268, 273 (5th Cir. 1997), cert. denied, 522 U.S. 1068
(1998). JMOL is proper when “the facts and inferences point so
strongly and overwhelmingly in favor of one party that the court
concludes that reasonable jurors could not arrive at a contrary
verdict”. Id. at 273; FED. R. CIV. P. 50(a). Restated, we must
affirm unless “there is no legally sufficient evidentiary basis for
a reasonable jury[’s]” verdict. FED. R. CIV. P. 50(a)(1); e.g.,
19
Lane, 241 F.3d at 445. For our de novo review of a JMOL-denial, we
“review all of the evidence in the record ... [but] may not make
credibility determinations or weigh evidence”. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations
omitted). Likewise, “the evidence, as well as all reasonable
inferences from it, are viewed in the light most favorable to the
verdict”. Lane, 241 F.3d at 445.
1.
Chapter 95 provides that property owners are not liable for
“personal injury [claims by] ... an employee of a ... subcontractor
who constructs, repairs, renovates, or modifies an improvement to
real property ... arising from the failure to provide a safe
workplace”. § 95.003. Arsement maintains Chapter 95 does not
apply to his claim because Spinnaker provided an “unsafe workplan”,
not the unsafe workplace necessary for a Chapter 95 premises
liability claim. This contention is unavailing. Arsement couched
his claims in terms of general premises liability in the pre-trial
order and during trial. As noted above, common-law premises
liability can attach against a property owner for a premises defect
or negligent activity. See Redinger, 689 S.W.2d at 417; see also
Levrie v. Department of Army, 810 F.2d 1311, 1314 (5th Cir. 1987).
Moreover, Chapter 95 applies to all claims for “damages caused by
negligence” arising from “the condition or use of an improvement to
real property where the contractor or subcontractor constructs,
20
repairs, renovates, or modifies the improvement”. §§ 95.001,
95.002. Thus, Chapter 95 applies to premises defect claims (“the
condition ... of an improvement to real property”), see Fisher v.
Lee and Chang Partnership, 16 S.W.3d 198, 202 (Tex. App. — Houston
[1st Dist.] 2000, pet. denied), and negligent activity claims (“use
of an improvement to real property”) like the one presented by
Arsement, see Francis, 130 S.W.3d at 84.
Again, Chapter 95’s protections apply to a property owner
unless three criteria are satisfied. For liability, the property
owner must first “exercise[] or retain[] some control over the
manner in which the work is performed, other than the right to
order the work to start or stop or to inspect progress or receive
reports”. § 95.003(1). The requisite control factor is narrowly
construed: the owner must control the “mode or method” of the
contractor’s work. Dyall, 2003 WL 21664163, at *5. In addition to
control, the other two criteria are: the property owner must have
“actual knowledge of the danger or condition resulting in the
personal injury”; and it must have “failed to adequately warn” of
this danger. § 95.003(1), (2) (emphasis added).
Spinnaker is the owner and operator of the property upon which
Arsement was injured; Arsement is the employee of an independent
contractor renovating an improvement to that property. Therefore,
concerning Plan B, Arsement had to prove Spinnaker exercised
control; had actual knowledge of the danger; and failed to warn.
21
Arsement was injured while the sump deck was being installed
pursuant to Plan B. The procedure employed was a side-lift,
because the crane cable holding the load, instead of being
completely vertical along side the platform, would be pulled to the
side under the platform when the sump deck was pulled under it by
air tuggers. Those involved in devising that plan were Brown,
Spinnaker’s chief of production on the platform; Degroat, a Nova
employee; Mason, the White Wing inspector; and Menard, Arsement’s
superior at PHS. Arsement claims Spinnaker, through its agent,
Brown, controlled the planning of the sump-deck installation lift
and thus controlled the “actual work procedure” which caused
Arsement’s injury. To this end, Arsement adduced the following
evidence.
He testified: Brown had control over what materials were
used, but never told Arsement how to do his work; Arsement warned
Menard Plan B was dangerous; and Menard insisted on the plan
because Brown and Mason required it.
Arsement’s expert, Craddock, testified: Brown was responsible
for overall safety on the platform; Brown had decision-making
authority regarding the timing and performance of operations on the
platform when multiple operations occurred at once; Brown was
involved in the creation of Plan B; Arsement did not plan the lift;
PHS could not have changed the plan without Brown’s approval; in
Craddock’s opinion, Brown was responsible for the safe performance
22
of the lift; and Brown was responsible for the actions of the three
men who, according to Arsement’s testimony, impeded Arsement’s view
and thus his ability to safely perform the lift.
Brown was the Spinnaker employee in charge on the day of
Arsement’s injury. He testified: a side lift was common on
construction projects; he had authority to prioritize platform
activities and to modify existing procedures if he needed to, for
safety reasons; Spinnaker’s procedure manuals instructed that the
supervisor “shall authorize” the shutdown of any unsafe activity;
and these guidelines, if not followed, are grounds for termination.
Mason was the White Wing inspector present on the day of the
injury. He testified: Brown had authority to shut down any
procedure he thought unsafe; neither Arsement nor Menard could have
used Spinnaker’s equipment without Brown’s approval; Brown helped
devise Plan B; Mason knew of the possibility of the load or the
block coming into contact with the outside rail of the platform;
and Menard could have ordered the original plan (Plan A) carried
out if safety required.
a.
A property owner cannot be liable for injury to an employee of
an independent contractor arising from renovation or improvement to
real property unless the property owner retains control over “the
manner in which the work is performed, other than the right to
order the work to start or stop”. TEX. CIV. PRAC. & REM. CODE §
23
95.003(1). Regarding Plan B’s formulation, Brown was present at
the meeting to devise the plan and authorized the use of
Spinnaker’s platform crane instead of the jack-up vessel’s crane.
Brown’s authorizing the use of Spinnaker equipment and having
authority to stop unsafe actions from taking place merely
constitute the “right to order the work to start or stop” – not
sufficient, without more, for the requisite control for Chapter 95
liability.
Concerning the additional requisite proof, there is no
evidence on exactly what was said at the planning meeting for Plan
A or at the meeting about three days later for Plan B. Mason
testified that Brown “was aware of what was going to take place”
regarding the sump deck installation and had authority to “shut it
down if he thought it was unsafe”, but the evidence is not
conclusive on whether Brown had further input into the details of
how Plan B would work. (Brown testified he was the production
supervisor; Mason, the construction supervisor.) Further, there
was no evidence that Spinnaker had direct control of the
implementation of Plan B. Arsement admitted that he only took
orders from Menard, his PHS superior, and that Spinnaker did not
control his work. Craddock agreed that Arsement “only took the
orders and took the responsibility from Menard, who was his
supervisor”. Arguably, this is insufficient evidence for
Spinnaker’s controlling the “mode or method” of Arsement’s work.
24
b.
Even assuming that Spinnaker had sufficient control over the
“mode or method” of the lift, no evidence was offered to show Brown
(and thereby Spinnaker) had any knowledge, much less “actual
knowledge[,] of the danger ... resulting in the personal injury”,
as required by § 95.003(2) (emphasis added). Mason testified:
Plan A was changed to Plan B because the parties agreed Plan A was
unsafe; and Plan B was a safer alternative than Plan A. (Mason
also testified that another factor in devising Plan B was the jack-
up vessel’s being unavailable for the lift.) Brown testified: he
thought Plan B could be safely implemented; and Plan A would have
been more dangerous than Plan B, because the jack-up vessel could
not have put the sump deck at a level where the vessel’s crane
could have operated safely without hitting any of the platform’s
under-structure. Arsement warned Menard Plan B was dangerous
because it was a side-lift; but, again, there was no evidence
Spinnaker was of that view.
There was not sufficient evidence for a reasonable jury to
find that Spinnaker (through Brown) had the requisite actual
knowledge of the danger (Plan B) resulting in the injury to
Arsement. Spinnaker was entitled to JMOL.
2.
Although Chapter 95 applies to Spinnaker as property owner,
Fisher, 16 S.W.3d at 203, it does not apply to general or
25
independent contractors. As the parties agree, Texas common law
controls White Wing, Nova, and Nowiczewski’s liability vel non.
Likewise, it is undisputed that the district court applied such law
to Arsement’s claims against them.
In this regard, White Wing, Nova, and Nowiczewski maintain:
Arsement failed to prove liability against them under the
controlling precedent elucidated by the Texas Supreme Court in
Redinger, 689 S.W.2d 415, and its progeny. Arsement does not
dispute that Redinger controls; instead, he maintains he adduced
sufficient evidence in that regard.
Arsement claims negligent activity premises liability against
White Wing, Nova, and Nowiczewski, because Plan B was utilized.
“Recovery on a negligent activity theory requires that the
plaintiff be injured by or as a contemporaneous result of the
activity itself.” Villegas v. Texas Department Of Transportation
and Rekca, Inc., 120 S.W.3d 26, 38 (Tex. App. — San Antonio 2003,
pet. denied).
A contractor does not assume liability for another’s injury
under a negligent activity premises liability theory unless that
contractor has “control over, and responsibility for, the
premises”. Id. “Accordingly, if an independent contractor is in
control of the premises, he is charged with the same duty as an
owner or possessor.” Id. Again, in describing the common-law duty
owed an independent contractor, Redinger held:
26
The general rule is that [a contractor] does
not have a duty to see that an independent
contractor performs work in a safe manner....
However, when the general contractor exercises
some control over a subcontractor’s work, he
may be liable unless he exercises reasonable
care in supervising the subcontractor’s
activity.
689 S.W.2d at 418. Thus, to prove negligent activity premises
liability, an employee of an independent contractor must prove
another contractor had (1) “some control” over the employee’s work
and (2) failed to exercise reasonable care in supervision. Thomas
v. Internorth, Inc., 790 F.2d 1253, 1254 (5th Cir. 1986).
To prove control in absence of a contractual agreement, the
employee must show the contractor “actually exercised control over
the manner in which the independent contractor’s work was
performed”. Dow Chemical Co. v. Bright, 89 S.W.3d 602, 606 (Tex.
2002). “[M]erely exercising or retaining a general right to
recommend a safe manner for the independent contractor’s employees
to perform their work” is insufficient to subject a party to
liability. Id. at 607 (emphasis added). Instead, the contractor
must have the right to control the “means, methods, or details of
the independent contractor’s work”. Elliott-Williams Co., Inc. v.
Diaz, 9 S.W.3d 801, 804 (Tex. 1999). Further, “the control must
relate to the injury the negligence causes”. Bright, 89 S.W.3d at
607. In Bright, the Texas Supreme Court held there was no
contractor liability when the injured party could not show the
27
contractor was “involved in any manner with controlling the timing
and sequence” of the injured party’s work, and the contractor did
not “decid[e] which ... employees should perform which task and at
what point in time”. Id. at 609.
Finally, a contractor does not have a “duty to protect
[another] contractor or its employees from hazards they themselves
create in performing their contract”. Thomas, 790 F.2d at 1255
(emphasis added). The Texas Supreme Court has recognized that
a ... contractor has actually exercised
control of a premises when the general
contractor knew of a dangerous condition
before an injury occurred and approved acts
that were dangerous and unsafe.
Bright, 89 S.W.3d at 609 (emphasis added).
a.
Spinnaker engaged PHS to make the improvements to the platform
and engaged Nova, an engineering inspection group, to oversee those
improvements. Nova, in turn, engaged White Wing to ensure owner-
contractor contract compliance for various fabrication products
involving the platform and to provide visual inspections.
(1)
Arsement maintains White Wing is liable for his injury because
it controlled Plan B’s formulation. Arsement adduced the following
evidence to prove such control. He testified: Mason helped design
Plans A and B. Craddock, Arsement’s expert, testified: Mason, for
White Wing, helped construct Plan B; and if Menard or Arsement
28
wanted to change a plan, they would have to consult Mason. On the
other hand, Mason testified: Plan B was a team effort between him,
Menard from PHS, and Brown from Spinnaker; the team preplanned Plan
B; Mason looked to Menard from PHS to assist in that planning;
Mason believed Plan B was a safe plan; and the decision to change
from Plan A to B was in order to avoid a dangerous situation.
Concerning Plan B’s formulation, and viewing the evidence in
the requisite light most favorable to the verdict, the evidence
shows White Wing participated in devising Plan B, but it does not
show White Wing controlled the “timing and sequence” of Arsement’s
actions. The evidence shows PHS, not White Wing, decided which
employees should participate in the lift; and Craddock testified
that the crane operator (Menard) and the signalman (Arsement) were
ultimately responsible for the safety of the lift. Arguably,
Arsement did not provide sufficient evidence for a reasonable jury
to find White Wing, through Mason, had control of Arsement’s work
for Redinger purposes.
(2)
In any event, for a party to be liable under Redinger,
plaintiff must show not only that the contractor had control but
also that it failed to exercise reasonable care in exercising that
control. 689 S.W.2d at 418. Arsement made no showing that White
Wing failed to take reasonable care in formulating Plan B.
Craddock testified he thought White Wing was “negligent” but did
29
not explain how it breached its duty of reasonable care. On the
other hand, Brown, for Spinnaker, testified that Plan B was chosen
as a safer alternative to Plan A; and Mason also testified he
believed Plan A would have been more dangerous than Plan B because
the jack-up vessel boom could not go underneath the platform
without creating a dangerous condition. The evidence shows
reasonable care was taken to ensure Plan B was safe.
There was no evidence upon which a reasonable jury could find
that White Wing breached its duty of reasonable care owed Arsement.
Absent a showing of breach of that duty, no Redinger liability can
attach to White Wing. White Wing was entitled to JMOL.
b.
Nova oversaw White Wing and assured contract compliance for
Spinnaker. Arsement claims Nova had the requisite control over his
actions pursuant to Plan B, both in its own capacity and because
Mason, for White Wing, was working for Nova.
(1)
Concerning the latter, Arsement maintains: because neither
Nova nor White Wing “contested which company was vicariously liable
for Mason’s acts, the jury could permissibly decide that both
were”. As discussed supra, it is arguable that a reasonable jury
could not have found White Wing exercised the requisite control in
devising Plan B; but, in any event, there was not sufficient
evidence for a reasonable jury to find White Wing negligently
30
devised that plan. Therefore, Arsement’s vicarious liability claim
against Nova fails.
(2)
Concerning Nova’s liability vel non for its conduct, Arsement
adduced the following evidence as to Nova’s direct control over
Plan B’s formulation. Craddock, Arsement’s expert, testified:
both White Wing and Nova had documentation of Plan A on their work
reports for 30 October 2000, thus both companies had knowledge of
the planned lift; Degroat, a Nova inspector, was informed about the
existence of Plan B, but was not on the platform when the plan was
devised; and Mason, the White Wing representative working “on
behalf of Nova”, was involved in devising Plan B. Arsement
testified: Degroat, Nova’s inspector, was involved in devising
Plan A; Degroat was not involved in planning Plan B; and Degroat
did not tell Arsement how to do his work on the day of his injury.
Degroat testified (via deposition): he was responsible for
ensuring projects on the platform were done safely and to
specification; and he was not involved with the sump deck
installation - under either Plan A or Plan B. Mason, the White
Wing inspector, testified: Degroat helped formulate Plan A; White
Wing worked as an independent contractor for Nova; and no one from
Nova told Mason how to go about his work.
Viewing this evidence in the light most favorable to the
verdict, it remains insufficient for a reasonable jury to find Nova
31
had the requisite control in the formulation of Plan B to be
subject to liability under Redinger. Nova’s “general right to
recommend a safe manner for the independent contractor’s employees
to perform their work”, cannot, alone, subject it to liability for
Arsement’s injury. See Bright, 89 S.W.3d at 607. There was no
evidence of control upon which a reasonable jury could base
liability on the part of Nova. Among other things, it was neither
involved in the timing and sequence of Arsement’s work nor in the
decision that he participate in the crane lift. Nova was entitled
to JMOL.
c.
Finally, Nowiczewski, sole owner of Nova Consulting Services,
appeals the denial of JMOL as to him individually, as well as to
his doing business as Nova. As discussed supra, Nova Consulting
Services is a sole proprietorship, owned and operated by
Nowiczweski. It goes without saying that, “when an individual is
doing business under an assumed name, a judgment rendered against
the unincorporated association is binding on the individual”.
Holberg & Co. v. Citizens Nat. Assur. Co., 856 S.W.2d 515, 517
(Tex. App – Houston [1st Dist.] 1993, no writ).
(1)
Nowiczweski claims nothing he did was the legal cause of
injury to Arsement. Arsement replies he was not required to show
personal involvement by Nowiczewski because he was sued both
32
individually and doing business as Nova; thus, again, if Nova is
liable, Nowiczewski is liable. On this record, however, Nova is
not liable; therefore, Nowiczewski is not liable in his capacity as
Nova’s owner. Restated, the denial of JMOL was improper as to
Nowiczewski doing business as Nova.
(2)
Denial of JMOL as to Nowiczewski outside his sole
proprietorship capacity as owner of Nova was also improper. For
that situation, there was no evidence that Nowiczewski had any duty
to Arsement; he was neither property owner nor contractor.
Further, Arsement testified Nowiczewski never told him how to do
his job; and Mason testified no one ever told Nowiczewski that the
sump-deck installation plan had changed from Plan A to B. Thus,
for his non-sole-proprietorship capacity: there was no showing
either that Nowiczewski had a duty to Arsement, or that he breached
any duty he might have had; no reasonable jury could have found
sufficient evidence to impose liability on Nowiczewski; and,
accordingly, he was entitled to JMOL.
D.
The district court, in its post-trial JMOL-denial, prohibited
additional motions being filed in that court. Concerning both the
district court and its improper procedure, our court previously
stated:
[W]e direct the judge in this case, and others
in this circuit, to entertain post-judgment
33
motions.... [T]he district courts must
carefully consider each such motion on its
merits, without begrudging any party who
wishes to avail himself of the opportunity to
present such motions in accordance with the
rules of procedure and with the standards of
professional conduct.
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 502 (5th Cir.
2000). We are dismayed, to say the least, that, notwithstanding
the above directive to the district court, it employed this
improper procedure again. We remind the district court that
ordering parties to forgo their rights under the Federal Rules of
Civil Procedure is outside the scope of its authority.
As noted supra, Arsement claimed at oral argument that he did
not file an objection to Spinnaker’s post-trial JMOL motion, after
it was quickly denied by the district court, because that denial-
order prohibited further motions. Litigants are reminded that “no
judge has [the] authority” to prohibit them from filing motions
allowed by the Federal Rules of Civil Procedure. Id. On the other
hand, it is rare indeed when a lawyer is expected to directly
disobey a presiding judge’s order.
In the light of our previous directive, we are at a loss as to
why this improper prohibition was employed. We can only hope that
it was inadvertent. In any event, we once again direct that this
prohibition not be utilized.
III.
34
For the foregoing reasons, the denial of judgment as a matter
of law for defendants is VACATED; judgment is RENDERED for them.
VACATED and RENDERED
35
Arsement v. Spinnaker Exploration Co.
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-02-10
Citations: 400 F.3d 238
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