Arsement v. Spinnaker Exploration Co.

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