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United Scaffolding, Inc. v. Levine

Supreme Court of Texas

June 30, 2017

United Scaffolding, Inc., Petitioner,
v.
James Levine, Respondent

          Argued March 2, 2017

         On Petition for Review from the Court of Appeals for the Thirteenth District of Texas

          Justice Green delivered the opinion of the Court, in which Chief Justice Hecht, Justice Johnson, Justice Willett, Justice Guzman, and Justice Brown joined.

          Justice Boyd filed a dissenting opinion, in which Justice Lehrmann and Justice Devine joined.

          Paul W. Green Justice.

         In this slip-and-fall case, we are presented with two challenges to a trial court judgment rendered against a scaffolding contractor. First, the contractor challenges the jury submission of the plaintiff's claim under a general-negligence theory of recovery, arguing that the plaintiff brought a claim for premises liability, which necessarily fails because the plaintiff did not request and obtain findings on the elements of that claim. We hold that the plaintiff's claim against the contractor sounds in premises liability, and a general-negligence submission cannot support the plaintiff's recovery in a premises liability case. Second, the contractor challenges the trial court's order granting a new trial, arguing that the new trial order can be reviewed by direct appeal after final judgment was rendered in the subsequent trial. While the contractor presents an interesting issue, we do not reach it because our ruling on the submission issue is dispositive in the contractor's favor. We reverse the court of appeals' judgment and render a take-nothing judgment.

         I. Background and Procedural History

         On December 26, 2005, James Levine, a pipefitter for Valero Energy Corporation and an employee at Valero's Port Arthur refinery, was scheduled to work an overtime shift in the refinery's alkylation unit. Because it was an overtime shift, Levine did not work with his usual crew, but each member of the overtime crew was a Valero employee. The overtime crew was tasked with routine maintenance that required the installation of two blanks into an exchanger, a dangerous job that placed Levine and other crew members more than fifteen feet above the ground on a scaffold, where they donned protective clothing and were supplied "fresh air" through special equipment that was constantly monitored by a crew member. Levine alleges that he slipped on a piece of plywood that had not been nailed down, causing him to fall up to his arms through a hole in the scaffold. Levine alleges that he suffered a neck injury as a result of the fall.

         The scaffold on which Levine allegedly fell was constructed by United Scaffolding, Inc. (USI), a contractor Valero hired to build scaffolds at its Port Arthur refinery. According to both USI's and Valero's scaffold policies, and in compliance with Occupational Safety and Health Administration (OSHA) regulations, USI was required to inspect the nearly three thousand scaffolds at the refinery before each work shift and before each scaffold's use. It is undisputed that USI assembled the scaffold at issue approximately one week before the maintenance work commenced, and it is undisputed that USI representatives were not present on the date of, and at least three days preceding, Levine's fall.

         Levine filed suit against USI, claiming that USI improperly constructed the scaffold and failed to remedy or warn of the dangerous condition on the scaffold, causing his injury. The case was tried before a jury for the first time in December 2008. The trial court submitted a general-negligence question to the jury, offered by USI, and the jury returned a verdict finding USI negligent. The jury apportioned responsibility among the parties, assigning 51% to USI and 49% to Levine. The jury awarded Levine $178, 000 in damages for future medical expenses, but it declined to award any damages for past medical expenses, past or future pain and suffering, mental anguish, or loss of earning capacity.

         Levine filed a motion for new trial, asserting that the jury's verdict was against the great weight and preponderance of the evidence. The trial court agreed and granted a new trial "in the interest of justice and fairness." In re United Scaffolding, Inc., 301 S.W.3d 661, 662 (Tex. 2010) (per curiam) (orig. proceeding). Asserting that the trial court abused its discretion by ordering the new trial, USI filed a petition for writ of mandamus in the Ninth Court of Appeals, which denied relief. In re United Scaffolding, Inc., 287 S.W.3d 274, 275 (Tex. App.-Beaumont 2009, orig. proceeding), mand. granted, 301 S.W.3d at 663. USI then filed a petition for writ of mandamus in this Court, and we conditionally granted the writ, directing the trial court to "specify its reasons for disregarding the jury verdict and ordering a new trial." In re United Scaffolding, 301 S.W.3d at 663. The trial court subsequently amended its order, but USI again sought mandamus relief, which the court of appeals again denied. In re United Scaffolding, Inc., 315 S.W.3d 246, 251 (Tex. App.-Beaumont 2010, orig. proceeding), mand. granted, 377 S.W.3d 685, 690 (Tex. 2012). USI then filed a second petition for writ of mandamus in this Court, alleging that the trial court did not fully comply with our instruction from the first mandamus proceeding. In re United Scaffolding, Inc., 377 S.W.3d at 686-87. We conditionally granted the writ and directed the trial court to "resolve all ambiguity" by amending the new trial order to include "only the specific and valid reasons that, in the context of this case, . . . it granted a new trial." Id. at 690. The trial court amended its order, and USI did not file a third petition for writ of mandamus.

         The case was tried for a second time in February 2014. Just as it did in the first trial, the trial court submitted a general-negligence question to the jury, and USI neither offered a premises liability question nor objected to the general-negligence question. At the conclusion of the second trial, Levine faired much better. In addition to allocating 100% of the responsibility to USI, the jury awarded Levine nearly $2 million in past and future damages. USI filed a motion for new trial and a motion for judgment notwithstanding the verdict. In its motion for judgment notwithstanding the verdict, USI raised the argument, for the first time, that the trial court improperly submitted a general-negligence question to the jury when Levine's claim sounded in premises liability. Levine cited our decision in Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997), asserting that submission of the improper theory of recovery required the trial court to render a take-nothing judgment. The trial court denied both motions and entered judgment in Levine's favor.

         USI raised two issues on appeal: (1) whether Levine's claim was improperly submitted under a general-negligence theory of recovery; and (2) whether the new trial order following the first trial was improperly granted. The court of appeals affirmed the trial court's judgment. ___ S.W.3d ___, ___ (Tex. App.-Corpus Christi-Edinburg 2015, pet. granted). As to the first issue, the court of appeals concluded that the relevant inquiry for determining the proper characterization of Levine's claim hinged on whether USI controlled the premises, which the court held that USI did not. Id. at ___. Declining to reach the second issue, the court of appeals held that although several of our recent decisions could be characterized as expanding the scope of appellate review of new trial orders via mandamus, those holdings do not permit the direct appeal of a new trial order following the completion of the new trial. Id. at ___.

         II. Character and Submission of Levine's Claim

         In its first issue, USI contends that it is entitled to a take-nothing judgment because Levine's premises liability claim was improperly submitted to the jury under a general-negligence theory of recovery. Levine argues that his claim was properly submitted and, even if his claim sounded in premises liability, USI waived its argument either by not objecting to the jury charge or by inviting the error when it requested a general-negligence question in the first trial. As we explain below, both Levine's trial court petition and the evidence presented at trial compel the conclusion that Levine's claim is premised on USI's having the right to control the scaffold at the time Levine allegedly suffered injury. We hold that Levine's claim sounds in premises liability, and, as a result, the general-negligence findings cannot support Levine's recovery. Additionally, we hold that USI neither waived its submission argument nor invited error and that USI properly preserved error by raising its argument in its motion for judgment notwithstanding the verdict.

         A. Standard of Review

         A trial court must submit jury questions, instructions, and definitions that "are raised by the written pleadings and the evidence." Tex.R.Civ.P. 278; see also Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663 (Tex. 1999). In reviewing alleged error in a jury submission, we consider "the pleadings of the parties and the nature of the case, the evidence presented at trial, and the charge in its entirety." Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009) (citing Sterling Tr. Co. v. Adderley, 168 S.W.3d 835, 843 (Tex. 2005); Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986)). The alleged charge error "will be deemed reversible only if, when viewed in the light of the totality of these circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment." Island Recreational, 710 S.W.2d at 555; see also Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995).

         Whether the condition that allegedly caused the plaintiff's injury is a premises defect is a legal question, which we review de novo. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 385 (Tex. 2016); Reliance Nat'l Indem. Co. v. Advance'd Temps., Inc., 227 S.W.3d 46, 50 (Tex. 2007); Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex. 2002) (per curiam); State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994) (per curiam); State Dep't of Highways v. Payne, 838 S.W.2d 235, 238 (Tex. 1992). As we have held for two decades, a premises defect case improperly submitted to the jury under only a general-negligence question, without the elements of premises liability as instructions or definitions, causes the rendition of an improper judgment.[1] Olivo, 952 S.W.2d at 529.

         B. Character of Levine's Claim

         "A general contractor in control of the premises may be liable for two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect." Id. at 527 (citing Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985)). Levine argues on appeal that neither of those types of negligence applies in this case because USI relinquished control of the scaffold before Levine was injured, leaving Levine with a general- negligence claim. The court of appeals considered USI's control over the premises to be the central inquiry in determining the character of Levine's claim. ___ S.W.3d at ___. Concluding that Valero controlled the scaffold on the day of Levine's accident, the court of appeals held that Levine's claim was properly submitted under a general-negligence theory of recovery. Id. at ___. In reviewing the alleged charge error, we must consider the nature and circumstances of Levine's injury, Levine's allegations against USI, and the evidence presented at trial.

         1. Theories of Recovery

[A] person injured on another's property may have either a negligence claim or a premises-liability claim against the property owner. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. When the injury is the result of the ...

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