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Maya Walnut, LLC v. Lopez-Rodriguez

Court of Appeals of Texas, Fifth District, Dallas

May 3, 2017

MAYA WALNUT, LLC D/B/A EL RIO GRANDE LATIN MARKET STORE 5, Appellant
v.
ELFEGO LOPEZ-RODRIGUEZ, Appellee

         On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-05961.

          Before Justices Fillmore, Whitehill, and Boatright

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         Elfego Lopez-Rodriguez severed a portion of his left thumb while working as a meat cutter for Maya Walnut, LLC d/b/a El Rio Grande Latin Market Store 5 (Maya). Lopez-Rodriguez sued Maya for negligence in failing to provide a safe workplace. A jury found Maya's negligence was a proximate cause of Lopez-Rodriguez's injuries and awarded him $106, 950 in damages. In one issue, Maya challenges the legal and factual sufficiency of the evidence to support (1) the jury's findings that Maya breached a duty of care to Lopez-Rodriguez and that any breach proximately caused Lopez-Rodriguez's injuries, and (2) the jury's award of $4, 450 in damages for past lost wages. As to the award of past lost wages, Maya asserts the evidence at trial supports a recovery of only $450 for past lost wages. Lopez-Rodriguez concedes the evidence supports a finding of past lost wages only in the amount of $450 and "that part of the verdict should be reformed to reflect an amount of $450.00 for the past lost wages[.]" Construing Lopez-Rodriguez's concession as consent to the remittitur of damages not supported by the evidence, see Tex. R. App. P. 46.3, we modify the trial court's judgment to award Lopez-Rodriguez $450 for past lost damages. As modified, we affirm the trial court's judgment. We remand this case to the trial court for the purpose of recalculating prejudgment interest.

         Background

         Lopez-Rodriguez was hired by Maya in 2007 or 2008 to work in the seafood department. He was responsible for selling seafood to customers and preparing sauces and salads. After approximately six months of employment, Lopez-Rodriguez was promoted to assistant manager of the meat department. Lopez-Rodriguez testified he received no training for the assistant manager's position. His responsibilities as the assistant manager consisted of attending to the needs of customers and supervising store personnel, including supervision of meat cutters and the manner in which they performed their duties. He was also expected to ensure that "by a certain hour, " all the "cases" were full and there was a sufficient supply of meat to satisfy customer demand. As an assistant manager, Lopez-Rodriguez occasionally cut meat with the meat saw because there were not enough meat cutters available to ensure the required production. According to Lopez-Rodriguez, even though he had "always been attending to the public in a butcher shop, " he had no personal experience using a meat saw prior to working for Maya.

         At some point, Maya instituted a training program for new personnel. Lopez-Rodriguez testified that "all the personnel who beforehand had been working" at Maya were also required to attend the training. Lopez-Rodriguez requested that he receive the additional training on several occasions, but was not allowed to attend because he was a supervisor.

         Although there was conflicting evidence about whether it occurred in May or October of 2013, Lopez-Rodriguez was replaced as assistant manager by Cesar Granados and given the option of becoming a meat cutter or terminating his employment with Maya. Lopez-Rodriguez accepted the meat cutter position and testified that "[f]rom that moment on, without asking if I had received training, without asking if I knew how to cut, from that moment on, my job was to cut meat."

         According to Lopez-Rodriguez, he learned how to cut meat based on information he received from individuals with more experience and a video training course he completed at Maya that showed him "that was how it was cut in order to avoid dangers." Lopez-Rodriguez watched the video training course in the office. He also watched a PowerPoint presentation concerning meat cutting on the computer and listened to a speaker "going through it." Lopez-Rodriguez testified the training he received did not include information on the difference between cutting frozen and fresh meat or how to safely handle the cutting of a large volume of meat.

         The PowerPoint presentation viewed by Lopez-Rodriguez was admitted into evidence along with an acknowledgement, signed by Lopez-Rodriguez on May 25, 2013, that he had received the "Cutting Safety Training." The PowerPoint presentation contained slides on a meat cutter's responsibilities; lifting safety; hazards in the meat department, including cuts and amputations from meat processing machinery; preventing slips and falls; general injury prevention measures; personal protective equipment; keeping a clean and neat uniform; personal hygiene; safe knife handling practices; using the meat saw; how to cut pork feet, beef feet, and "seven steak;" and keeping the workplace clean. As to proper use of the meat saw, the PowerPoint presentation (1) instructed Lopez-Rodriguez that he should always use the guards on the saw; (2) indicated the saw should be cleaned at least twice a day, and preferably after every use, and power to the saw should be disconnected before it was cleaned; (3) provided general instructions on how to clean the saw; and (4) informed Lopez-Rodriguez the saw was designed to "cut side" and "should never be cut from the front." The slide regarding meat saw safety stated:

         (IMAGE OMITTED)

         Lopez-Rodriguez was also cautioned in the PowerPoint presentation to review and understand the operating instructions for the meat saw, but the record does not reflect he was provided with those instructions during the training. Lopez-Rodriguez passed a "Knowledge Test" on the information provided during the training.

         Granados, who had six or seven years' experience as a meat cutter prior to being hired by Maya, testified that, after he began working for Maya, he was required to review the videos and to attend a two-day training program at another store. Granados agreed this other store provided "hands-on training using the meat saw and other things that you would use at [sic] a meat cutter." Granados testified he observed Lopez-Rodriguez cutting meat and Lopez-Rodriguez "was doing it the correct way." Lopez-Rodriguez never asked Granados for additional training and, based on his observations of Lopez-Rodriguez's work, Granados did not believe Lopez-Rodriguez needed additional training. Granados conceded, however, that during his deposition he testified he did not "pay a lot of attention" to Lopez-Rodriguez while he was cutting meat because the department was busy.

         According to Lopez-Rodriguez and his coworker, Israel Anguiano, demand for meat increased significantly during the 2013 holiday season. During the holiday season, all the meat had to be cut by 2:00 p.m. each day and there was "a lot of hurry as to cutting it." Lopez-Rodriguez admitted, however, that during his deposition, he testified the volume of meat he was required to cut on December 2, 2013, was the "usual" volume. Granados testified November and December are busy months in the meat department, and he has occasionally hired extra personnel to handle the additional volume. In November and December 2013, he did not hire additional meat cutters because Maya had sufficient personnel to cut the required amount of meat. According to Anguiano, Maya did not have sufficient workers on December 2, 2013, to cut the required amount of meat.

         Lopez-Rodriguez testified that on December 2, 2013, he was cutting pork chops and, because of the amount of meat he was required to cut, was "cutting fast." As he was running a piece of frozen meat through the meat saw, it "jumped up" and his left hand was exposed to the blade. A portion of Lopez-Rodriguez's left thumb was severed by the saw. Efforts to reattach the severed portion of his thumb were unsuccessful.

         Lopez-Rodriguez was on medical leave for approximately six weeks. During that period, Maya paid him approximately seventy percent of his regular weekly earnings of $250. Lopez-Rodriguez returned to work, but his employment with Maya was terminated on April 28, 2014, ...


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