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Critical Path Resources, Inc. v. Cuevas

Court of Appeals of Texas, Fourteenth District

March 29, 2018

CRITICAL PATH RESOURCES, INC., Appellant
v.
RICHARD CUEVAS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF NICOLAS OSCAR CUEVAS, DANIEL CUEVAS, NICOLAS CUEVAS, MARIA CUEVAS, GUADALUPE TORRES, BLANCA RODRIGUEZ, LUIS DE LOS SANTOS, BLAKE SMITH, AND TAMATHA SMITH, Appellees

          On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2012-21574

          Panel consists of Justices Christopher, Busby, and Jewell (Jewell, J., dissenting).

          MAJORITY OPINION

          J. BRETT BUSBY, JUSTICE.

         Appellees Richard Cuevas, Daniel Cuevas, Guadalupe Torres, Luis de los Santos, and Blake Smith, and decedent Nicolas Oscar Cuevas (Nico), were employees of J. V. Industrial Companies, Ltd. (JVIC) working as boilermakers during a turnaround at the Memphis, Tennessee refinery owned and operated by Valero Energy Corporation and Valero Refining Company-Tennessee, L.L.C. (collectively Valero). Daniel, Nico, and Richard are brothers. Daniel, Nico, and Torres were working on an elevated platform to install a blind in a flare line from which flammable substances had not been cleaned. An explosion occurred and all three were severely burned; Nico died from his burns four days later. Richard, Santos, and Smith, all working on the ground near the platform, were injured by the explosion.

         Appellees, which include the Cuevas brothers' parents and Smith's and Torres's spouses, sued numerous defendants. One of the defendants is appellant Critical Path Resources, Inc., which was hired to schedule work during the turnaround. All defendants except Critical Path settled prior to trial. Following a lengthy trial, the jury found in favor of appellees. The jury found that Critical Path was six percent responsible for the explosion and resulting injuries. The trial court subsequently signed a judgment based on the jury's verdict awarding appellees "the total sum of $8, 466, 656.07 in damages, including prejudgment interest, over and against [Critical Path] for negligence."

         Critical Path raises four issues in this appeal. In its first and second issues, Critical Path argues that the evidence is legally and factually insufficient to support the jury's finding that Critical Path (1) breached its duty of care, and (2) that Critical Path's acts or omissions proximately caused the injuries suffered by appellees. Because there is legally and factually sufficient evidence that Critical Path breached its duty to schedule the isolation and cleaning of the flare line and that the breach was a proximate cause of appellees' injuries, we overrule Critical Path's first two issues.

         In its third issue, Critical Path contends that the trial court abused its discretion when it refused to submit a new and independent cause instruction in the jury charge. Because (1) Critical Path's acts and omissions had not run their course and been completed so that they did not actively contribute to the explosion and injuries, and (2) the allegedly intervening acts and omissions risked the same harm and were the very hazard that made Critical Path's scheduling failure negligent, we conclude the trial court did not abuse its discretion when it rejected Critical Path's requested instruction.

         In its fourth issue, Critical Path challenges the sufficiency of the evidence supporting some of the economic and non-economic damages found by the jury. We conclude that most of the jury's damage awards are supported by sufficient evidence, and we therefore affirm the judgment on the claims of most appellees. Because the evidence is factually insufficient to support the total amount of future medical damages awarded to Daniel, and the total amount of non-pecuniary damages awarded to Mr. and Mrs. Cuevas, we suggest a remittitur to an amount supported by the evidence. If a remittitur of the unsupported damages is timely filed, we will modify the trial court's judgment in part and affirm as modified. If it is not, we will reverse the judgment as to the claims of Daniel and Mr. and Mrs. Cuevas and remand those claims for a new trial.

         Background

         A. Mike Rivers of Critical Path serves as master scheduler for a turnaround of Valero's Memphis refinery.

         Valero owns and operates a refinery in Memphis, Tennessee. Refineries periodically schedule turnarounds: a period of time when the refinery owner shuts down part or all of the refinery to make repairs, perform maintenance and upgrades, or construct new units. Valero scheduled a turnaround for half of the Memphis refinery during February and March 2012. Valero planned for the turnaround to last 32 days at a total cost of more than $60 million. Approximately half of the projected cost was for materials and labor to be used during the turnaround. The remainder of the cost consisted of profits that would be lost as a result of shutting down half of the refinery for the duration of the turnaround. Because Valero loses nearly one million dollars in profit each day of the turnaround, there is a tremendous emphasis on getting the work done as quickly and efficiently as possible.

         A refinery turnaround can be divided into five phases: (1) planning, (2) shutdown, (3) actual turnaround work, (4) start-up, and (5) post-turnaround. In 2010, Valero assembled a team to plan and manage the turnaround. Valero designated Ray Hankins, a Valero employee, as the turnaround manager. Hankins was in charge of Valero employees assigned duties related to the turnaround and of contractors hired to do much of the planning and work involved.

         Valero hired Dennis Hodges of UP Professional Solutions as the lead planner for the turnaround. Hodges, who reported directly to Hankins, had numerous duties. During the planning phase of the turnaround, Hodges was responsible for tracking the progress of the different planners planning the jobs to be done during the turnaround, ensuring that they were meeting the planning milestones set by Valero management. Hodges's role shifted once turnaround work started; he then tracked the progress of the work, ensuring that it was progressing according to the specifications and the turnaround plan. Hodges's duties included reminding people involved in the turnaround of the milestones set by Valero management.

         Valero hired Mike Rivers of Critical Path as the master scheduler[1] for the project early in 2011. Valero paid Critical Path $97.95 per hour for a master scheduler as well as a $90 per diem. Rivers also reported directly to Hankins. Although Rivers testified that he was nothing more than a data entry clerk who passively waited for information to be handed to him and then entered it into a computer program, other evidence-including other parts of his own testimony- showed that he had additional duties.

         Rivers was responsible for maintaining the master schedule for the entire turnaround through a computer program, Primavera Project Planner.[2] Valero's practice when planning a turnaround was to place every detail of any work to be done on the Primavera schedule. Rivers worked with the schedulers for the contractors involved in the turnaround and was responsible for adding their schedules to the master schedule. Rivers's responsibilities did not stop there, however. The turnaround manager, lead planner, and master scheduler worked together as a team to plan and schedule the turnaround. They met frequently to discuss the planning, the work, its progress, and any problems they encountered. Rivers, as the master scheduler, had to possess an understanding of the planner's job so that he could interact effectively and efficiently with the other members of the planning team.

         During trial, Rivers agreed that it was his job as the turnaround master scheduler to "identify the tasks, figure out if there were any predecessor tasks, ask for plans, and put them in the schedule and then keep the schedule." To perform his duties as master scheduler, Rivers needed to understand the jobs being done during the turnaround, the tasks associated with each of those jobs, the policies and procedures involved in the jobs, the duration of the tasks, and the resources required to perform them. He also needed to understand the job logic associated with the jobs planned for the turnaround so that he could figure out if there were predecessor tasks required. Rivers would then ask for the plans for any predecessor tasks and add them to the master schedule in the proper order and with adequate time for them to be performed. If Rivers did not get the information he needed, he was supposed to raise the issue with management. According to Rivers, there were regular discussions about job logic to make certain the tasks were scheduled in the proper order.[3] Rivers testified that these discussions would continue until the team reached a conclusion on the topic, and he would ask questions if he did not understand. Rivers also testified that if predecessor tasks are not scheduled, it can throw the turnaround off schedule. According to Rivers, getting the job logic right before importing items into the Primavera program is crucial to completing a turnaround on time, which demonstrates the importance of job planning and scheduling.

         Rivers summarized his job during the planning stage of the turnaround as receiving and importing job plans into the Primavera system, "working on the logic, working with the planners to make sure that the logic is correct, [and] attending various meetings." The meetings included weekly planning meetings with turnaround management. During at least two of these meetings, Rivers was instructed to obtain assistance from Valero writer/trainer personnel regarding scheduling. According to Rivers, the writer/trainers were Valero operations personnel with knowledge of Valero's procedures. Rivers testified that he did not recall seeking out that assistance. More specifically, despite his awareness that he needed to know Valero's policies and procedures to schedule work accurately, Rivers did not recall reviewing any Valero procedures regarding isolation of vessels, purging and cleaning vessels, or vessel entry.

         B. Isolation and cleaning of the south flare line is not scheduled.

         Hodges explained that the first task in the turnaround planning was to develop a master work list of all work to be done. Valero management completed the master work list in June 2011. The master work list included a schedule of planning milestones for the turnaround. Among other items, the schedule called for all "Energy Isolation and Decontamination Plans" to be completed between August and November 2011.

         Among the jobs included in the master work list was work on the refinery's south flare line.[4] Several different jobs were planned on the south flare line, including installing additional gate valves, line tie-ins, and sample ports. Valero also planned to replace the flare tip. Rivers knew in June 2011 that he needed to place the isolation and decontamination plans for the south flare line work on the master schedule no later than the end of November 2011. Despite that knowledge, the isolation and decontamination plans for the south flare line were not included in the master schedule.[5]

         On February 22, 2012, Hodges emailed Rivers and others the schedule for some of the work to be done on the south flare line. The emailed schedule had been drawn up by the contractor that would perform the work. In his email, Hodges instructed that this schedule be incorporated into the master schedule. He also reminded the recipients to include in the schedule time to "blind and un-blind the flare." Part of the job logic for installing blinds on a refinery line requires that (1) the line be isolated from the rest of the system, and (2) all flammable substances in the line be removed or neutralized. Only after these essential predecessor tasks have been completed is it safe to open up the line to install a blind, which prevents flow through the line. Rivers admitted he "knew that isolation and cleaning was absolutely necessary before entry into" the line. The master schedule, however, did not include these essential predecessor tasks.[6] Instead, the only work on the schedule was one day for installing blinds and then, immediately afterward, several days for the actual work on the line.

         C. The turnaround begins and a belated plan to prepare the south flare line for work is not followed.

         Ronnie Rainer worked as a writer/trainer for Valero. His normal responsibilities included working on daily operating procedures and operating manuals. Rainer was also involved in training operators. Rainer was assigned to provide operations support for the south flare line work. Rainer had no prior experience with the type of work planned on the south flare line. He also received no training on how to make sure the work was completed. Rainer was aware Valero had policies covering (1) the draining, venting, and purging of tanks, vessels, and piping; (2) work on flare lines; and (3) vessel and line opening procedures. Rainer did not, however, review those policies before the work started on the south flare line.

         In mid-February, Jeff Byrnes, the general foreman for JVIC, took Rainer out to the south flare line and pointed out the work that was planned there. JVIC was one of the many contractors performing work during the turnaround and the employer of many of appellees. Byrnes described the work that was going to be done and the sections of the line where it was going to happen. Byrnes also explained the general procedure that was to be used for the work. According to Byrnes, the line would be shut down and it would need to be cleaned or decontaminated before the work could begin. Byrnes explained that they would use steam to clean the line from the knockout drum all the way to the flare tip, a distance of more than 120 yards.[7]

         Rainer knew the actual work on the south flare line was set to begin on March 8, a Thursday. The weekend before the work was scheduled to begin, Rainer knew there were preliminary steps that had to be taken before the work could start. Rainer had not seen a written plan for that preliminary work. Wanting the work to start on time so that contractors were not standing around doing nothing, Rainer took it upon himself to develop a plan to get the south flare line ready for the contractors. Rainer talked to Stephen Buggs, a Valero shift supervisor who had previously worked on the south flare line, about the south flare line project. According to Rainer, Buggs told him the unwritten cleaning plan Byrnes had mentioned back in mid-February would not work because it was not environmentally compliant or safe. Rainer claimed Buggs told him that the flare pilots had to remain lit during the cleaning because if they were extinguished, hydrocarbons would be steamed directly into the atmosphere.

         Rainer developed a written plan that he hoped would get the south flare line isolated and cleaned before March 8. The plan relied on steaming the line to clean it of hydrocarbons. Even though his plan relied on steaming the line commencing on March 5, Rainer prefaced his plan with the statement that "I'm not sure how much steaming it will take to clear the 36" flare line and have it ready for hot work." According to Rainer's plan, once the line was cleaned and isolated, contract workers would insert three blinds into the 36-inch line. The first blind would be inserted upstream from the knockout drum. Rainer's supervisor, Timothy Crutcher, approved the plan on March 4. Later that same morning, Rainer emailed the plan to numerous people, including Hodges and Rivers. Within minutes, Hodges emailed Rainer back "we need to meet and agree on who is doing what and when. We need to have both Wyatt and [JVIC[8] in room together and review this. Are you available today? We need to get going on this as soon as possible."

         The meeting occurred the next day. Hodges was angry during the meeting because he realized that the preliminary work for the south flare line had not been done and the work could not go forward until it was completed. Hodges had contractors showing up on March 8 and he wanted them to work. He told Rainer to get the project going and "the sooner the better." Hodges left the meeting thinking they were ready to start steaming the south flare line and that he had obtained "traction" on the job and his "wheels were no longer spinning."

         That same day, Rainer and others went to close the single gate valve on the 36-inch south flare line. They were able to close the valve but unable to verify that it was not leaking hydrocarbons downstream into the section of the line they were trying to isolate. Rainer's March 4 plan was based on the presupposition that the gate valve could be closed and would completely isolate the line once it was closed. Rainer testified that his supervisor, Crutcher, changed the plan in the field and instructed Rainer to insert the first blind downstream from the knockout drum rather than upstream as originally planned; workers would then steam the line from the inserted blind downstream to the flare. The new plan, calling for the opening of the south flare line before it was isolated and cleaned, was not communicated to the turnaround planning team.

         As part of his preparation for the work on the south flare line, Rainer opened a valve to verify the system was de-pressurized and to ventilate the line.[9] Because the line had not been completely isolated and cleaned, it still contained hydrocarbons. The line also may have contained pyrophorics, substances frequently found in refineries that can spontaneously ignite if they contact oxygen. Rainer testified that at the time the work on the south flare line started, he was aware that the line had not been completely isolated and cleaned and that the flare pilot lights were lit. Rainer proceeded with the work on the south flare line anyway.

         D. Work on the south flare line begins, an explosion occurs, and several workers are severely burned.

         On March 6, Richard Cuevas's crew from JVIC was assigned the task of installing the blind in the south flare line downstream of the knockout drum. Richard found out about the blind installation job the same day it had to be completed. Richard was told that the blind job was important because it was holding up other jobs and the work was already behind schedule. Richard was also told that the job had to be completed that shift because the work on the south flare line was going to start during the next shift. Richard's crew included his brothers Daniel and Nico, as well as Guadalupe Torres, Blake Smith, and Luis de los Santos. Richard's crew were boilermakers[10] who worked turnarounds at refineries throughout the country. As boilermakers, they did not handle steaming or cleaning lines.

         Rainer ran the safety meeting before the work commenced. Rainer told Richard's crew that the line was clean and the flare tip pilots were off. The required personal safety protections were also discussed during the safety meeting. Rainer told the crew that personal breathing air masks would be used. Richard asked whether the crew would need to wear fireproof bunker gear[11] during the job. Rainer said it was not needed. Rainer mentioned several times during the safety meeting that they were good to go on the job. Smith understood this to mean that the line was clean and ready to be worked on. Therefore, as the crew prepared to start working on the south flare line, they believed that the line had been isolated, they believed the line had been cleaned, and they believed that the flare pilot lights had been turned off. None of those essential predecessor tasks had happened.

         Daniel, Nico, and Torres were the crew members assigned to insert the blind into the south flare line. The work site was on a raised platform about twenty feet high. The remainder of the crew were working on the ground. The three-man crew started working on opening the flange where the blind would be inserted into the line. Daniel and Torres were kneeling down at the flange removing bolts. Nico was standing by holding a large metal-banded gasket that would go on the flange to seal the line once the blind was inserted.

         Daniel and Torres had removed the bolts and opened the flange about six inches when Torres felt a lot of pressure coming out of the opening, followed quickly by an explosion. The explosion blew Torres back about five feet. Torres wanted to run but he felt like he "was inside a balloon of fire" with flames all around him. Torres eventually saw an opening in the fire and got up, but was knocked back down again. Torres saw that his legs were on fire and he tried to put the flames out with his hands, but his gloves started melting into his hands, so he took them off. Torres then saw that someone was pumping water onto the platform. The water was not reaching him so he ran toward it. He passed Nico, who was lying on the platform tangled in the metal gasket he had been holding, burning. Torres reached the water, and he remembers the sound of the water hitting his burning body, and screaming, and pain.

         De los Santos heard the explosion and saw flame coming out of the line break. He then saw a burning object falling off the platform. The burning object was Daniel, who had been blown off the platform by the explosion. Richard ran up to his brother and tried to put out the flames, but something stuck on his hands and they ignited. De los Santos found some cardboard on the ground, placed it on top of Daniel and rolled with him until "you could just see smoke." De los Santos saw that Daniel was blistering and that his flame retardant clothes had burnt to his skin.

         De los Santos ran up on to the platform where he heard screaming and saw Torres "burnt, up there standing." De los Santos then went to Nico, who was laying on the platform still conscious. The water had not reached Nico and the fire had instead burned itself out. De los Santos removed Nico's fresh air mask, which had stuck to Nico's face. He then tried, unsuccessfully, to get Nico out of the tangled gasket. Nico told de los Santos that he could not move and then asked about his brother Daniel.[12]

         Daniel, Nico, and Torres were taken to the Memphis Medical Center Burn Unit after the explosion. They were treated by Dr. William Hickerson, a plastic surgeon specializing in the treatment of burn injuries. Nico was still conscious when he arrived at the hospital even though he was burned over ninety percent of his body. His parents, Maria and Nicolas Cuevas, arrived in time to be with Nico in the burn unit. Because Nico's condition was deteriorating, the doctors asked his parents for permission to place him on comfort measures. They explained to Nico's mother "that it was actually better if he were to die because people that actually survive those kinds of burns would ask to die because it was so, so painful." Mrs. Cuevas did not want Nico to endure that type of pain and suffering when there "was no chance for him to survive, " so she gave permission for the doctors to use comfort measures only. Nico died four days after the explosion.

         Daniel suffered third-degree burns over sixty-five percent of his body. Daniel had little chance of surviving his injuries, but he did. Daniel spent eight months in the Memphis hospital's burn unit. His parents were there with him the entire time. Daniel was next transferred to Houston, where he spent two months at the Texas Institute for Rehabilitation and Research (TIRR). Daniel then spent about four months being treated on an outpatient basis by TIRR. At the time of trial, Daniel was living at his home in the Rio Grande Valley, where his mother is his full-time primary caregiver. Daniel was not working, and evidence showed he would be unable to work into the future as a result of the severe injuries he sustained during the explosion.

         Torres arrived at the burn unit with severe burns over forty-five percent of his body. Torres's chances of survival were also slim, but he survived. Torres spent three months in the Memphis burn unit. His wife, Blanca Rodriguez, was with him in the burn unit. Torres was also treated at TIRR after he was released from the burn unit. At the time of trial, Torres was living at his home in Houston and was still unable to return to work due to his injuries.

         E. Valero completes the work and investigates the causes of the explosion.

         Valero eventually performed the planned work on the south flare line. Before beginning the work, Valero did the essential predecessor tasks that had been missed before the explosion. Valero chemically cleaned the knockout drum and then flooded it with water. Valero next put a nitrogen purge into the line rather than a steam purge. These tasks were done in stages and took about a week to complete.

         Valero also conducted an investigation into the causes of the explosion.[13] The executive summary of the investigation report states that "the incident resulted from a series of breakdowns in the implementation of safety systems leading to inadequate preparation of the flare system for maintenance work." The investigators observed that the original written plan for cleaning the south flare line was changed in the field to a plan that did not include cleaning the line before entry. The investigators determined there were several root causes of the explosion, including: (1) Valero policies related to the type of work involved were not followed; (2) the flare pilot lights remained lit; (3) the pre-work safety meetings did not adequately address the hazards involved in the work; (4) bunker gear was not used; and (5) three opportunities for air intrusion into the south flare line existed prior to and during the work-(a) the purge gas and center and tip steam systems were shut off the day before the work which allowed air to enter the line through the flare tip; (b) a drain valve was opened to verify the system was de-pressurized; and (c) the flange was opened for insertion of the blind. The investigators also determined there were contributing factors, including: (1) the Valero employee associated with the job had never performed flare isolation work before; and (2) the work on the south flare line did not have a detailed plan. The investigation placed responsibility for these root causes and contributing factors on Valero and JVIC. The leader of the investigation testified during trial that he did not consider Critical Path's responsibility for the explosion because he was not aware of the company.[14]

         F. The injured workers sue, a jury finds in their favor, and the trial court signs a judgment against Critical Path.

         Appellees filed suit against numerous defendants, including Valero and Critical Path. All defendants except Critical Path settled prior to trial. At the end of a lengthy trial, the jury found that Critical Path, JVIC, Valero, and UP Professional[15]were negligent and that their negligence proximately caused the occurrence. The jury failed to find that any of the appellees were negligent. The jury assigned Valero responsibility for seventy percent of the harm, JVIC fourteen percent, Critical Path six percent, UP Professional six percent, and the remainder to other defendants. The jury also found the amounts of damages sustained by each of the appellees. The trial court eventually signed a judgment awarding the following damages: (1) Richard $181, 724.40; (2) Daniel $4, 917, 085.23; (3) Nico's estate $295, 301.22; (4) Mr. Cuevas $607, 126.66; (5) Mrs. Cuevas $607, 126.66; (6) Torres $1, 526, 580.27; (7) Torres's wife, Blanca Rodriguez $34, 632.73; (8) de los Santos $158, 854.64; (9) Smith $28, 307.23; and (10) Smith's wife Tammy, $9, 917.02. This appeal followed.

         Analysis

         I. Sufficient evidence supports the jury's finding that Critical Path was negligent and that its negligence proximately caused appellees' injuries.

         Critical Path argues in its first issue that the evidence is legally and factually insufficient to support the jury's determination that Critical Path breached its duty to use ordinary care in scheduling tasks during the Valero turnaround. In its second issue, Critical Path asserts the evidence is legally and factually insufficient to support the jury's finding that its negligence proximately caused the injuries.

         A. Standard of review and applicable law

         When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate on appeal that there is no evidence to support the adverse finding. Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 550 (Tex. App.-Houston [14th Dist.] 2013, no pet.). In conducting a legal-sufficiency review, we must consider all the record evidence in the light most favorable to the appealed finding and indulge every reasonable inference that supports it. Id. at 550-51 (citing City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005)). The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. Id. at 551. This Court must credit favorable evidence if a reasonable trier of fact could, and disregard contrary evidence unless a reasonable trier of fact could not. Id. The trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id.

         We sustain a legal sufficiency (or no-evidence) issue only if the record reveals one of the following: (1) the complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively the opposite of the vital fact. Id. Evidence that is so weak as to do no more than create a mere surmise or suspicion that the fact exists is less than a scintilla. Id.

         In reviewing the factual sufficiency of the evidence, we must examine the entire record, considering the evidence both in favor of, and contrary to, the challenged findings. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406- 07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party challenges the factual sufficiency of the evidence supporting a finding for which it did not have the burden of proof, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Ellis, 971 S.W.2d at 407; Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 769 (Tex. App.-Houston [14th Dist.] 2004, no pet.). The amount of evidence necessary to affirm is far less than the amount necessary to reverse a judgment. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). This Court is not a factfinder. Ellis, 971 S.W.2d at 407. Instead, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. GTE Mobilnet, 61 S.W.3d at 615-16. Therefore, we may not pass upon the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence also would support a different result. Id. When presented with conflicting evidence, a jury may believe one witness and disbelieve others, and it also may resolve any inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). If we determine the evidence is factually insufficient, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict; we need not do so when affirming a jury's verdict. Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).

         To prevail on a negligence claim, a plaintiff must establish a duty, a breach of that duty, and damages proximately caused by the breach. Kroger Co. v. Milanes, 474 S.W.3d 321, 335 (Tex. App.-Houston [14th Dist.] 2015, no pet.). An occurrence may have more than one proximate cause. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). Proximate cause cannot be established by mere conjecture, guess, or speculation. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Proximate cause may, however, be established by direct or circumstantial evidence and the reasonable inferences drawn from that evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Proximate cause consists of two elements: cause-in-fact and foreseeability. Del Lago Partners, Inc., 307 S.W.3d at 774. Critical Path has not challenged the element of foreseeability in this appeal.

         The test for cause-in-fact is whether the defendant's act or omission was a substantial factor in bringing about the injury, which would not otherwise have occurred. Western Inv., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001). The plaintiff need not exclude all possibilities of how the injury occurred; it is sufficient to prove that the greater probability is that the defendant's conduct, alone or in contribution with others, was a cause of the injury. First Ass'y of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.-Dallas 2001, no pet.). A substantial factor is one that reasonable people would regard as a cause in the popular sense of the word, in which there lurks the idea of responsibility. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex. 1991). "[T]he conduct of the defendant may be too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing about the harm." IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). Cause-in-fact is not shown if the defendant's negligent act or omission did no more than furnish a condition that made the injury possible. Urena, 162 S.W.3d at 551.

         These causation principles have proven difficult to articulate coherently and apply consistently. One potential source of confusion is that although the "substantial factor" analysis is nominally part of the cause-in-fact element, it also requires a legal analysis of whether the injury is "too remotely connected with [the defendant's] conduct to constitute legal cause"[16]-an analysis that "mandates weighing of policy considerations" and that was historically conducted as part of the foreseeability element.[17] In conducting this analysis, courts frequently proceed by comparing and contrasting the facts of various cases addressing whether a defendant's negligent act or omission was a substantial factor in causing the plaintiff's injury.[18] More generally, courts consider whether the dangerous force or situation created by the defendant's negligence had abated or come to rest before the injury, [19] and whether the negligence merely "furnished a condition" by attracting the plaintiff to or placing him in a particular location at a particular time where he happened to be injured by a third party.[20]

         B. Sufficient evidence supports the jury's finding that Critical Path breached its duty of ordinary care.

         Critical Path argues in its first issue that there is legally and factually insufficient evidence that it breached its duty to use ordinary care in scheduling tasks during the turnaround because appellees "never offered a copy of the 'master schedule' for the days leading up to, or even the day of, " the explosion. Critical Path further asserts that none of the schedule exhibits admitted into evidence are sufficient evidence of what was, or was not, in the master schedule in the days leading up to the explosion. Critical Path contends that testimonial evidence is insufficient to overcome this deficiency in the documentary evidence because (1) certain testimony of appellees' expert, Peter Howell, was "conclusory and of no legal value" because it was based on a scheduling document that Rivers did not create, and (2) Critical Path had no unilateral authority to plan and schedule turnaround tasks on the master schedule.

         Even apart from Howell's challenged testimony, we conclude there is sufficient evidence that Critical Path breached its duty of ordinary care. As to whether Critical Path had unilateral authority to plan and schedule, Critical Path argues that Rivers was nothing more than a data entry clerk and his authority extended only to importing plans that had been handed to him into the Primavera program. Critical Path's argument is not supported by the record. Appellees did not contend that Rivers had the unilateral authority as master scheduler to plan and schedule tasks on the master schedule. Appellees instead offered ample evidence (summarized in Part A of the background section above) that Rivers had the duty to: (1) be an active participant in the turnaround planning team; (2) become familiar with both his employer's policies as well as Valero's policies and procedures related to the jobs scheduled during the turnaround; (3) be aware of and work out the job logic of the turnaround jobs; (4) figure out whether predecessor tasks were required; (5) ask for the plans for those predecessor tasks; (6) add the plans to the master schedule in the proper order and with adequate time for them to be completed; and finally, (7) raise any questions he had regarding job logic and the master schedule with management.

         In addition, there is evidence that Rivers failed to carry out these duties with respect to the work on the south flare line.[21] Critical Path does not dispute that Rivers had the duty to maintain the master schedule for the turnaround. Undisputed evidence showed that it was Valero's practice to include all tasks involved in the turnaround, even small ones, on the master schedule. Valero instructed the turnaround management team, which included Rivers as master scheduler, to schedule the isolation and decontamination tasks for the south flare line by November 2011. Rivers admitted he had not scheduled those tasks by January 2012.[22] Further, although the schedule for March 6 is not in the record, Rivers testified that he could not recall ever scheduling the isolation and decontamination tasks. Critical Path's expert, Gregg Perkin, admitted that he could not recall seeing a schedule that included time for isolation.

         More specifically, there is evidence that Rivers failed to familiarize himself with Valero's policies and procedures regarding isolation and decontamination, seek plans for the predecessor tasks those policies required, and put those plans on the schedule in the proper order and with adequate time for completion. According to Rivers, job logic dictates that isolation and cleaning of a line or vessel is a necessary predecessor task to entry into that line or vessel. Rivers admitted that he needed to know Valero's policies and procedures so that his schedules would be correct. Yet Rivers conceded that he never reviewed Valero's policies and procedures regarding isolation, cleaning, and entry even though he was instructed twice during planning meetings to obtain that information from Valero operations personnel.

         The record also contains evidence that Rainer, the Valero operations person responsible for the south flare line work, had not seen a written plan for the isolation and decontamination work on the south flare line the weekend before the actual turnaround work was scheduled to begin. Rainer emailed the plan he developed on his own initiative to Hodges and Rivers on March 4. John Brewer, the leader of Valero's team investigating the explosion, testified that Rainer's March 4 plan was the only written plan the investigators found and that there was no evidence of a plan before that date.

         Finally, there is evidence that Rivers, having received Rainer's eventual plan, again failed to schedule tasks required to isolate the line. Rivers testified it was not unusual to receive plans like Rainer's after a turnaround had started. As noted above, Rivers's obligations as master scheduler included familiarizing himself with applicable policies and procedures, figuring out whether they required predecessor tasks, requesting plans for those tasks, and including plans for all tasks on the master schedule with adequate time for completion. In the plan, Rainer informed Rivers and the other recipients that he intended to rely on a single gate valve to isolate the south flare line. As Howell explained, old single gate valves are notorious for leaking and cannot be relied upon to isolate a line being opened for work. Howell testified that the obligation of a scheduler in this circumstance was to bring the valve isolation problem to the attention of the appropriate planning and operations personnel and tell them that applicable safety procedures required a different method of isolation, which Rivers failed to do.[23] Rivers admitted that he could not recall ever scheduling any isolation work.

         We conclude the jury could reasonably find from this evidence that Rivers never reviewed policies, requested plans, or scheduled the isolation and decontamination tasks for the south flare line, which was a breach of Critical Path's duty of ordinary care. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 607 (Tex. 2016) ("To establish the breach, the plaintiff must prove that the defendant's conduct constituted negligence, which is simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done." (internal quotation marks omitted)). We overrule Critical Path's first issue.

         C. Sufficient evidence supports the jury's finding that Critical Path's breach was a cause-in-fact of appellees' injuries.

         Critical Path argues in its second issue that the evidence is legally and factually insufficient to support the jury's finding that its negligence was a proximate cause of appellees' injuries. More specifically, Critical Path asserts that its scheduling failure was not a cause-in-fact of the explosion because it was too attenuated and remote from that harm to be a substantial factor in bringing it about. We disagree.

         As discussed above, the evidence supports a finding that Critical Path negligently failed to schedule the isolation and decontamination tasks necessary to prepare the south flare line for entry. The report on Valero's investigation summarized the causes of the explosion as "a series of breakdowns in the implementation of safety systems leading to inadequate preparation of the flare system for maintenance work." Specifically, the report identified as a root cause of the explosion that safety procedures for line opening and pipe purging "were not properly followed . . . in that the vessel was not cleared of flammable/combustible materials and/or pyrophorics prior to opening which provided a fuel and ignition source for the flash fire." The report also listed the lack of a "detailed plan" for the south flare line work as a contributing factor in the explosion. Although the report does not mention Critical Path by name, the jury could consider it as evidence that Critical Path's negligence was a substantial factor in causing the explosion because other record evidence showed Critical Path was responsible for reviewing Valero's safety procedures regarding isolation and decontamination, seeking plans for the predecessor tasks those policies required, and putting every detail of the work to be done on the schedule.

         Critical Path points, however, to two events that occurred after its initial failure to schedule the isolation and decontamination by November 2011. The first occurred when Valero personnel changed Rainer's plan of March 4, 2012, which Critical Path contends would have safely isolated and decontaminated the south flare line, to a plan doomed to failure. The second event is the failure of personnel on the scene to heed indications that the south flare line was live and to stop work on the line once the flare stack started smoking and then emitting flame. Critical Path argues these negligent acts or omissions were the actual causes of the explosion and, as a result, its own initial failure to schedule the isolation and decontamination of the south flare line timely was too attenuated to be a substantial factor in causing the explosion and injuries. Critical Path suggests that, at worst, Rivers's scheduling failure did no more than furnish a condition for the negligence of others to occur.

         We conclude neither event establishes that the evidence of cause-in-fact is legally or factually insufficient. First, the evidence at trial was disputed regarding the safety of Rainer's belated March 4 plan. Although some witnesses testified to that effect, Critical Path's own expert testified that Rainer's plan was so flawed that "the accident was going to happen sooner or later" because the planned use of a single gate valve for isolation and of steam for decontamination did not adequately address the safety hazards present in the line.[24] Based on this evidence, the jury could reasonably find that Rainer's March 4 plan for the unscheduled work would not have safely isolated and decontaminated the south flare line.[25]

         As Critical Path points out, Rainer's supervisor later changed the March 4 plan to insert the first blind in a different location before steaming the line. Given the testimony of Critical Path's expert that "the accident was going to happen" even without this change, a reasonable jury could find that the change was not a cause-in-fact of appellees' injuries. See Urena, 162 S.W.3d at 551 (explaining test for cause-in-fact is "whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred").

         Second, a reasonable jury could find that there was not a reasonable opportunity to stop the work once the flare stack started smoking and emitting flame. Most of the witnesses who testified to seeing either smoke or flames coming out of the flare stack also testified that they were unsure what was going on because they believed the south flare line had been isolated and cleaned before the work commenced on March 6. Other witnesses, including Richard, testified that they did not see the smoke or flames prior to the explosion.

         Yet even if we assume that the change in Rainer's plan or the failure to stop the work was a cause of the incident, more than one act may be a proximate cause of the same injury. Harrison, 70 S.W.3d at 784. The record certainly contains evidence of other contributing causes, including Rainer's negligent March 4 plan, the failure to heed the work permit's statement that the line contained flare gas, and the failure to require the JVIC workers to follow safety protocols such as wearing bunker gear. Indeed, the jury took these causes into account in apportioning more responsibility for the harm to Valero and JVIC than to Critical Path. See Del Lago Partners, 307 S.W.3d at 774. But on this record, a reasonable jury could also find that Critical Path's failure to schedule the isolation and cleaning of the south flare line was a substantial factor in causing the explosion and injuries. See Lopez v. Wildcat Cranes, Inc., No. 02-14-00254-CV, 2015 WL 4606114, at *5 (Tex. App.- Fort Worth Oct. 1, 2015, pet. denied) (mem. op.) ("Because more than one cause in fact may exist for an injury, a reasonable juror could agree that these variables contributed to the incident and nevertheless still find that Wildcat Crane's negligent acts were a substantial factor in causing the scissor lift to tip and without which the harm would not have occurred.").

         Critical Path contends that its failure to schedule the work by November 2011 is simply too far attenuated from the March 2012 accident. It cites Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 731 (Tex. App.-Houston [14th Dist.] 2007, no pet.), where we held that a defendant's failure to recommend in 1996 that a plant owner install additional monitors and alarms on a particular tank was too remote to be a substantial factor in the explosion of that tank in 2000.

         Unlike in Arguelles, the negligence and injury here are much closer in time, and our record includes evidence that the dangerous situation created by Critical Path's negligence had not abated or come to rest when appellees were injured. Perkin, Critical Path's expert, explained that scheduling ensures the right things are done efficiently at the right time with the right equipment and the right people. Appellees' expert Howell agreed that one of the reasons Valero hired a master scheduler was to minimize the work time, which was extremely important given that Valero would lose nearly one million dollars per day during the turnaround. As both Critical Path's Rivers and JVIC's Byrnes explained, failing to plan and schedule required tasks can throw the turnaround off schedule, leading to even more of a sense of urgency.[26]

         Having been hired for these purposes, Critical Path's Rivers failed to identify the isolation and decontamination tasks that Valero's policies required for the south flare line work, request plans for those tasks, and put that information on the master schedule by November 2011. This negligence, appellees' expert Howell explained, resulted in the following urgent situation: by the weekend of March 3 and 4, 2012, no schedule was in place to give Valero the time, people, and equipment needed to complete the required tasks safely before work was scheduled to begin on March 8.

         The jury also heard evidence that Valero's Rainer, after discovering that there was no schedule for isolating and decontaminating the south flare line, hastily developed a flawed plan on March 4 to keep the turnaround moving forward. The lead planner expressed his anger that the work could not go forward until the line was clean, and both he and Rainer said they did not want contractors standing around doing nothing. When the single gate valve Rainer planned to use for isolation proved insufficient, Rainer's supervisor changed the March 4 plan to insert the first blind before decontaminating the line. The JVIC workers were carrying out this plan when the explosion occurred. [27]

         None of these developments indicate that the dangerous situation created by Critical Path had abated. Critical Path's expert agreed that because the planning and scheduling work was not done in the office, that left Rainer trying to do it on the fly, which was completely insufficient. Rivers also testified that he understood how the failure to plan and schedule this job ultimately manifested itself with Rainer in the field.

         In particular, Valero still had insufficient time: Howell testified that Valero would have had to start isolation and cleaning at least by March 1 to complete the necessary steps before work was scheduled to begin on March 8.[28] As to people, Rainer himself admitted that he was not qualified to develop the plan, which should have been completed and thoroughly evaluated long before he got involved.[29]Regarding equipment, Howell testified that one method of isolating a line with a single gate valve safely is to perform a hot tap and insert a stopple, which takes at least a half-day to complete and would be done by a company specializing in such work, not by a crew of boilermakers like that used by Valero.[30]

         Moreover, Critical Path's scheduling duties and its negligence were ongoing. As explained in Part I.B., Rivers received Valero's March 4 plan, which relied on the single gate valve to isolate the line. But he failed once again to review job logic and consult applicable policies, raise the isolation problem, and schedule the tasks required to isolate the line.

         Based on this and other record evidence set out in the background section above, a reasonable jury could find that the dangerous situation created by Critical Path's negligent failure to request plans and schedule tasks to isolate and decontaminate the line was that flammable substances remained without sufficient time to plan and execute their safe removal before the job began. The failures of Rivers and others to abate this danger show that Critical Path's negligence did not "come to rest" before the explosion. See Homeland Express, L.L.C. v. Seale, 420 S.W.3d 145, 150-51 (Tex. App.-El Paso 2012, no pet.) (holding dangerous situation created by defendant parking truck partially in a highway lane had not come to rest when third party cut plaintiff off, forcing him to swerve into the lane and clip the truck). Because Critical Path had the obligation-as well as the necessary knowledge and access to information-to arrange for removal of the danger at a time when it could easily have done so, it makes sense to hold it at least partially responsible as a legal matter for injuries caused by that danger. See Lear Siegler, 819 S.W.2d at 472 (discussing ideas of responsibility and legal causation underlying substantial factor analysis).

         Nor is this a case in which Critical Path's negligence simply furnished a condition that caused the JVIC team to be in the wrong place at the wrong time to be injured by a third party's negligence. Instead, as discussed above, Critical Path's negligence caused flammable substances to remain in the line without sufficient time to plan and execute their safe removal before the job began, and the JVIC team was exactly where it was supposed to be to begin the job when they were injured by the ignition of those substances. Thus, the condition cases relied on by Critical Path are not on point.

         In Lear Siegler, a mobile sign defect placed the plaintiff repairing it at the particular place and time where he was hit by a sleeping driver; the court held the defect was not a legal cause of the injury because proper operation of the sign would have had no effect on the driver's conduct. 819 S.W.2d at 472. In IHS Cedars, the defendant discharged the plaintiff from mental health treatment, which allowed her to be in the car with another former patient who experienced a psychotic episode while driving and crashed. Because there was no argument that the defendant caused the former patient's episode, the discharge merely created a circumstance leading to the plaintiff's injury and was not a proximate cause. 143 S.W.3d at 801. And in Bell v. Campbell, the court held a prior wreck that was complete did not contribute to the injury of plaintiffs by attracting them to the scene, where they were hit by a drunk driver. 434 S.W.2d 117, 122 (Tex. 1968).

         In contrast, the cause of appellees' harm in this case was exactly what Critical Path knew about and failed to prevent despite an opportunity to do so: the danger that flammable hydrocarbons in the line would explode during line work. Rather than causing appellees to be in a place where unrelated danger struck, Critical Path's negligence helped ensure that they would find danger there.

         For these reasons, we conclude a reasonable jury could find that Critical Path's negligence in scheduling did not merely furnish a condition for the negligence of others to cause the explosion, but was instead a substantial factor in causing the explosion and injuries. We overrule Critical Path's second issue.

         II. The trial court did not abuse its discretion by refusing to give an instruction on new and independent cause.

         A. Standard of review and applicable law

         In its third issue, Critical Path contends it is entitled to a new trial because the trial court refused to include Critical Path's requested instruction on new and independent cause in the jury charge. A trial court must submit in its charge to the jury all requested questions, instructions, and definitions that are raised by the pleadings and the evidence. See Tex. R. Civ. P. 278; E.I. DuPont de Nemours & Co v. Roye, 447 S.W.3d 48, 56 (Tex. App.-Houston [14th Dist.] 2014, pet. dism'd) (citing Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663-64 (Tex. 1999)). The parties have the right to be judged by a jury properly instructed in the law applicable to the case. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000). The goal is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely. Roye, 447 S.W.3d at 56.

         To achieve this goal, trial courts enjoy broad discretion so long as the charge is legally correct. Id. Determining what jury instructions are necessary and proper is within the trial court's discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). When a trial court refuses to submit a requested instruction, the issue on appeal is whether the instruction was reasonably necessary to enable the jury to render a proper verdict. Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.-Houston [14th Dist.] 1997, writ dism'd by agr.). We review the trial court's decision for an abuse of discretion. Shupe, 192 S.W.3d at 579. If the trial court abused its discretion in refusing an instruction and that error "probably caused the rendition of an improper judgment, " Tex.R.App.P. 44.1(a), the proper remedy is for the appellate court to reverse the judgment and remand the case for a new trial. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862, 865-66 (Tex. 2009).

         Although there may be more than one proximate cause of an injury, a new and independent cause intervenes between the original wrong and the final injury such that the injury is attributed to the new cause rather than the first and more remote cause. Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (citing Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450 (Tex. 2006) (plurality op.)). A new and independent cause thus supersedes the defendant's negligence by destroying the causal connection between that negligence and the plaintiff's harm, precluding the plaintiff from establishing that the defendant's negligence was a proximate cause of the plaintiff's damages. Id. A concurring cause, in contrast, cooperates with the defendant's still-persisting original negligence in bringing about the injury, leaving the causal connection between the defendant's negligence and the plaintiff's harm intact. Id. at 98; Gannett Outdoor Co. of Tex. v. Kubeczka, 710 S.W.2d 79, 85 (Tex. App.-Houston [14th Dist.] 1986, no writ).

         "What generally distinguishes a superseding cause from one that merely concurs in the injury is that the intervening force was not only unforeseeable, but its consequences also unexpected." Dew, 208 S.W.3d at 451. Yet even the intervention of an unforeseen cause with unexpected consequences is not sufficient to relieve the defendant from liability if his own negligence has not run its course and actively contributes to the injuries. Bell, 434 S.W.2d at 121-22.[31] A new and independent cause: alters the natural sequence of events; causes an injury that would not otherwise have occurred; is not brought into operation by the defendant's original wrongful act or omission; and operates entirely independently of that act or omission. Hawley, 284 S.W.3d at 857.

         In determining when an intervening force rises to the level of a new and independent or superseding cause, Texas courts have considered the factors set out in section 442 of the Restatement (Second) of Torts:

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

         Restatement (Second) of Torts § 442 (1965) (hereinafter "Restatement"). The first four factors "generally parse[] the core principles already discussed-that a superseding cause ordinarily involves the intervention of an unforeseen, independent force from a third party, causing injury different from that which might have been expected at the time of the original negligent act." Dew, 208 S.W.3d at 451-52. The last two factors are not relevant ...


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