Court of Appeals of Texas, Eighth District, El Paso
J.C. GENERAL CONTRACTORS, Appellant,
TEODORO CHAVEZ, Appellee
Petition for review filed by, 05/02/2014
Appeal from the 210th District Court of El Paso County, Texas. (TC#2006-4269).
Before McClure, C.J., Rivera, and Rodriguez, JJ.
GUADALUPE RIVERA, Justice
At the conclusion of a jury trial Appellant, J.C. General Contractors, was found negligent and liable as a nonsubscriber to worker's compensation insurance under Texas Labor Code section 406.033. Tex. Lab. Code Ann. § 406.033 (West 2006). Appellant was ordered to pay Appellee, Teodoro Chavez, $310,607.48 in damages for the injuries sustained from an accident involving a forklift on Appellant's job site.
Appellant is a corporation owned by Mr. and Mrs. Jose and Hortencia Chavez. Appellee, the nephew of Jose and Hortencia, was employed by Appellant as a construction laborer. Miguel Chavez, brother
of Jose and uncle of Appellee, was the superintendent of the construction job site for a Sleep Inn where Appellee was working on May 31, 2006. Equipment at the job site included a forklift with a basket attached to it which was used to lift men to work on high parts of the structure and to take trash from upper floors down to the dumpster. The basket was attached to the forklift by chains wrapped around its mast and secured with locks.
Appellee testified that on the day of the accident, Miguel told him to get into the basket to be lifted up to take measurements of the porch. Appellee was unable to secure the basket to the forklift that day because Miguel had forgotten the key to the locks on the chains. Appellee was wearing a safety harness which was attached to the basket but not to the forklift. Appellee and a fellow laborer, Jose Ortiz, were lifted up in the metal basket. The basket fell forward at a height between ten and twenty feet and Appellee sustained serious injuries as a result.
Appellee suffered a broken collarbone, bruising of the lungs, internal bleeding of the liver, a broken wrist requiring nerve repair surgery, two fractured ribs, a fractured skull and traumatic brain injury resulting in mental problems and memory loss. It was undisputed at trial that the forklift was not designed to lift laborers and should not have been used in that manner. Appellant's affirmative defense was that Appellee was intoxicated by reason of introduction of cocaine at the time of the accident, and therefore, not entitled to relief under Labor Code section 406.033. Tex. Lab. Code Ann. § 406.033(c)(2) (West 2006).
One of Appellee's coworkers, Hector Lara, testified that he saw Appellee snort cocaine the morning of the accident. Lara remembered Appellee acting hyper, and in a rush to get things done right before the accident happened, all of which are indicative of cocaine use. Lara also testified Appellee was jumping up and down in the basket right before it fell. Appellee's medical records revealed he tested positive for cocaine on the day he sustained the injuries. Appellee admitted to using cocaine multiple times in the past, but denied using it the morning of the accident. Appellee stated that the last time he had used cocaine was four days prior to the accident, which is why his drug test came back positive.
At the conclusion of trial, the jury was instructed to consider whether or not the injury to Appellee was caused while he was in a state of intoxication. The jury did not find that the injury was caused while Appellee was intoxicated and did find that Appellant's negligence proximately caused the injury. The jury determined that Appellee should recover $50,000 for physical pain and mental anguish sustained in the past, $50,000 for physical pain and mental anguish to be sustained in the future, $50,000 for physical impairment in the past, $135,607.48 for reasonable expenses of necessary medical care incurred in the past, $25,000 for loss of earning capacity sustained in the ...