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In re Enterprise Refined Products Company, LLC

Court of Appeals of Texas, Ninth District, Beaumont

May 17, 2018


          Submitted on March 27, 2018

          Original Proceeding 172nd District Court of Jefferson County, Texas Trial Cause No. E-194, 114

          Before McKeithen, C.J., Horton and Johnson, JJ.


          PER CURIAM

         Enterprise Refined Products Company, LLC[1] ("Oiltanking") petitions for mandamus relief from an order granting the motion for new trial filed by the plaintiff, Michael Stelly, following a jury trial in which the jury apportioned responsibility at thirty percent for Enterprise and seventy percent for Stelly on findings of general maritime negligence and premises liability. Stelly fell when he mounted a gangway connecting a barge to the dock located on Oiltanking's premises. In addition to ruling that insufficient evidence supported the jury's findings on Stelly's contributory negligence and Stelly's and Oiltanking's proportional responsibility, the trial court ruled that the great weight and preponderance of the evidence supports larger damage awards than the jury awarded for past and future medical expenses, past and future lost earning capacity, and future mental anguish caused by physical disability. Finally, the trial court ruled Oiltanking's jury argument that Stelly should not have been on the gangway because he was supposed to be on light duty due to a previous injury, was improper and so prejudicial that it could not have been cured by an instruction to disregard, and a new trial was required even though Stelly did not make a contemporaneous objection to the argument.

         Standard of Review

         A trial court's order granting a new trial after a jury trial is subject to mandamus review. See In re Bent, 487 S.W.3d 170, 173 (Tex. 2016) (orig. proceeding). We review the order for abuse of discretion. Id. at 178. The order granting a motion for new trial must state a reason for which a new trial is legally appropriate, such as a well-defined legal standard or a defect that probably resulted in an improper verdict, and be specific enough to indicate that the trial court derived the articulated reasons from the particular facts and circumstances of the case at hand. In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012) (orig. proceeding). "The order [granting a new trial] must indicate that the trial judge considered the specific facts and circumstances of the case at hand and explain how the evidence (or lack of evidence) undermines the jury's findings." 689. The "significant discretion" of a trial court to grant a new trial "should not, and does not, permit a trial judge to substitute his or her own views for that of the jury without a valid basis." In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212 (Tex. 2009) (orig. proceeding). If the trial court's articulated reasons for granting the motion for new trial are not supported by the underlying record, the appellate court may grant mandamus relief. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758 (Tex. 2013) (orig. proceeding).

         Evidence Not Supporting Liability Findings

         In its order granting Stelly's motion for new trial, the trial court ruled that there was insufficient evidence to support the jury's findings that Stelly's negligence proximately caused his injuries and that Stelly bore seventy percent of the responsibility for the accident. The evidence the trial court noted supports a "no" finding on Stelly's negligence included: (1) documents created by Oiltanking near the time of the accident which did not identify carelessness or negligence by Stelly or blame him for the accident; (2) written notes made by an Oiltanking supervisor that possible causes of the accident included improper placement of the gangway or failure to secure the gangway, not failure or inattention by Stelly; (3) a supervisor's report on which no checkmarks were placed next to indicators for individual violation, improper position or posture for task, overexertion of physical capability or improper speed; (4) Oiltanking's safety manager's report did not note "inattention for footing[]" by Stelly; (5) the eyewitness's statement that Stelly stepped on the gangway in an inappropriate manner was made four months after the accident, and at trial the witness testified that the placement of the gangway left Stelly no choice; (6) although Stelly failed to use three-point contact when stepping onto the gangway, the angle of the gangway did not permit three-point contact and Stelly had to put one foot on the gangway then lean forward to grab the handrails; (7) although Stelly did not use his stop-work authority, there was no evidence he knew the gangway was improperly secured; and (8) although there was evidence that Stelly was an experienced inspector, other people used the gangway without incident, and Oiltanking had similar gangways, there was no evidence that any of those factors were a proximate cause of the accident.

         The evidence the trial court noted supported finding liability as to Oiltanking included: (1) Oiltanking's control of the gangway and responsibility for its safe placement; (2) testimony that the safest way to secure the gangway was a 180 degree angle, and tying a gangway at a 45 degree angle is not the preferred method; (3) the gangway was not tied using the preferred method; (4) Oiltanking's safety manager's testimony that all the reporting from the night of the accident indicated the gangway slipped out from under Stelly and there was no good place to tie the runway, and his report noted that the root cause was inadequate workplace layout; (5) Oiltanking used a scaffolding stage platform as a gangway without following the manufacturer's requirements for scaffolding; and (6) the gangway was not anchored to prevent displacement and the gangway's handrails were chain, not equivalent in strength to a structural grade wood beam, and did not extend to the end of the gangway.[2]

         The trial court ruled that the jury's finding of seventy percent responsibility on the part of Stelly was based on mere speculation, and that the jury was profoundly impacted by the expert testimony of David Scruton. Scruton told the jury that the only plausible explanation for what caused the gangway to move was that Stelly stepped on the side edge of the gangway. The trial court ruled that this opinion was based on a false premise because the testimony was that Stelly stepped onto the gangway, not onto the side edge of the gangway. Additionally, the trial court found that Oiltanking's argument that Stelly failed to properly mount the gangway was based on pure conjecture.

         Evidence Supporting Liability Findings

         On October 14, 2012, Stelly, an experienced petroleum inspector who had visited Oiltanking's facility hundreds of times, assisted Derek Nix with the inspection of a barge moored to a dock at Oiltanking Beaumont. Before starting the job, Nix noted on his inspection form that he had inspected the jobsite area, there were no dangerous conditions, and there was suitable access to the vessel. They boarded the barge using what Nix agreed was a standard gangway. The line securing the gangway appeared to be taut and secure. Neither Nix nor Stelly noticed anything unusual about the gangway that evening.

         After they completed their work on the vessel, the Oiltanking personnel returned across the inclined gangway down to the dock. When Stelly stepped on the gangway, the gangway slid down and sideways and Stelly fell backwards off of the gangway onto the barge. Stelly was in a position where he could not line up exactly with the gangway and he had to step at an angle. According to Nix, the gangway inclined at an angle that made it necessary to step onto the gangway before grabbing the handrails. Nix could not recall whether the handrails extended to the end of the gangway. He believed the gangway could have been tied off more securely. He also believed that Stelly could have placed his foot in a ...

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