Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 192nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-14032
Justices Bridges, Brown, and Nowell
Panhandle Steel Erectors, Inc. (Panhandle) appeals from a
final judgment rendered on a jury verdict in favor of
appellee Luis Cantu in this negligence action. In three
issues, Panhandle contends the evidence at trial was
insufficient to prove the applicable standard of care, a
breach of that standard, and proximate cause. In two
additional issues, Panhandle asserts Cantu failed to obtain
necessary jury findings to recover on his claim. For the
following reasons, we affirm the trial court's final
2014, Luis Cantu began work for Commercial Coolants, Inc.
d/b/a Design Air Systems (Design Air), an air conditioning
company. He traveled with a Design Air crew to Amarillo to
remove and replace air conditioning units on the roof of a
Wal-Mart store. The units varied in size, but were generally
four to six feet in height, and sat on eight to twelve inch
curbs atop the roof. There also were skylights "all
around the roof" that were not protected by guardrails,
covers, or fall protection grids.
Air hired Panhandle, a professional crane business, to supply
the crane and crane operator for the project. Because the
crane operator was making blind lifts (lifting units on the
roof that he could not see from the crane), the project was
more complicated and required a signalperson to direct the
crane operator. Design Air employee Erick Torres served as
the signalperson. Design Air supervisor Michael Newcomer told
Torres, who stood near the edge of the roof, when it was time
for the crane to lift a unit, and Torres then signaled down
to the crane operator.
along with his brother David and Freddie Favela, were Design
Air helpers and, among other things, rigged the unit to the
crane. The crane's rigging consisted of four nylon straps
with shackles that hung down from the crane's hook, which
was positioned over the unit. Newcomer and the helpers
attached the shackles on the rigging to "pick
points" near the corners of the unit. The crane lifted
each unit twice: the first lift was approximately twelve to
eighteen inches off the ground to allow Newcomer to pull
electrical wiring from underneath the unit; the second lift
was to remove the unit from the roof.
of the Design Air crew testified some of the units swayed as
they were lifted. The amount of sway varied, and there was
evidence that swaying could result from a number of factors
including the crane's distance from the load, boom
deflection,  the angle at which the boom was set, the
load being improperly rigged or not centered, a cable being
"out of plumb," the crane not being lined up
parallel to the load, and wind. Because they knew the units
might "wobble a lot," the helpers stabilized the
units by holding them at their corners and side so they would
not injure Newcomer and he could remove the electrical wiring
"without pinching it and getting it caught." For
the second lift, the helpers let go of the unit and moved
back a few feet as the crane lifted the unit from the roof.
Cantu testified he looked up to see which direction the unit
was being moved off the roof. His brother David likewise
testified that, when the crane lifted the unit off the roof,
everyone let go, stepped "back off" two or three
steps, and looked to see where the unit was moving so they
could get out of the way.
first days of the project, Panhandle provided a 40-ton 500E
Grove crane operated by John Anderson. Cantu testified he
observed Anderson walking on the roof with Newcomer checking
the units that were going to be moved.
Monday, July 23, 2014, Panhandle sent a larger 110-ton 90GS4
Tadano crane. Panhandle employee Rick Collier operated the
crane. Another Panhandle employee, Erik Rodgers, accompanied
Collier and helped ready the crane. According to Collier,
Newcomer showed him the location of the units to be removed
and Collier determined where to place the crane. Because
Newcomer had a "flagman" on the roof, Rodgers
served as a rigger on the ground, unhooking old units and
hooking new ones.
provided the rigging for the project. Rodgers testified
Collier determined they would use four twenty-foot, two-inch
nylons and four shackles. Collier testified that Newcomer
asked for "some shackles that would fit," and they
determined the rigging based on units that were on the
ground. Newcomer did not remember talking with the crane
operator about anything other than where the crane would be
positioned. According to Newcomer, the crane operator chose
the rigging; the first time Newcomer saw it was when it was
attached to the crane up on the roof.
also carried taglines on their truck. Taglines, which have a
self-clipping shackle and can be attached to pick points
along with rigging, allow a worker to stand away from a load
being lifted and stabilize the load from a distance. Neither
Collier nor Rodgers attached taglines to the rigging or told
Design Air employees that taglines were available. Nor did
either Collier or Rodgers go up on the roof before lifting
began. Newcomer testified that, based on his experience, the
crane operator decides whether taglines are used.
third or fourth lift of the day, Cantu was positioned between
a corner of a unit and a skylight. He took a few steps back
as soon as the crane began lifting the unit off the roof and
saw the unit "coming toward" him. There was no time
to duck, so Cantu stepped back further. His heels hit the
side of the skylight, and he fell backwards through the
skylight and into the store below. Cantu suffered multiple
jury charge asked if the negligence of Panhandle, Wal-Mart,
Design Air, or Cantu proximately caused the occurrence in
question. The jury found in favor of Cantu,
apportioning Design Air's liability at forty percent,
Wal-Mart's liability at thirty-five percent, and
Panhandle's liability at twenty-five percent, and awarded
Cantu approximately $4.6 million in damages. The trial court
subsequently rendered a final judgment against Panhandle
awarding actual damages of $1, 190, 897.27. Panhandle filed
objections to the judgment, a motion and supplemental motion
for judgment notwithstanding the verdict, and a motion for
new trial. The trial court overruled the objections
and denied the motions.
prevail on his negligence claim, Cantu had to prove (1)
Panhandle owed him a legal duty, (2) Panhandle breached that
duty, and (3) he suffered damages proximately caused by the
breach. See Kroger Co. v. Elwood, 197 S.W.3d 793,
794 (Tex. 2006) (per curiam). In three issues, Panhandle
challenges the legal and factual sufficiency of the evidence
on each element of Cantu's negligence claim against it.
Specifically, Panhandle claims the evidence is legally and
factually insufficient to establish (1) the standard of care
and breach of that standard of care, (2) Panhandle's
negligence was a proximate cause of Cantu's accident, and
(3) Panhandle owed any duty to Cantu other than to operate
the crane according to the standard of care.
as here, an appellant attacks the legal sufficiency of the
evidence to support an adverse finding on an issue on which
it did not have the burden of proof, it must demonstrate that
no evidence supports the adverse finding. Exxon Corp. v.
Emerald Oil & Gas. Co., L.C., 348 S.W.3d 194, 215
(Tex. 2011). In determining whether the evidence is legally
sufficient, we consider the evidence in the light most
favorable to the verdict and indulge every reasonable
inference that would support it. City of Keller v.
Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005). We credit
favorable evidence if reasonable jurors could do so, and
disregard contrary evidence unless reasonable jurors could
not. Id. "The final test for legal sufficiency
must always be whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under
review." Id. at 827.
sustain a complaint that the evidence is legally insufficient
when there is a complete absence of evidence of a vital fact,
the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital
fact, the evidence offered to prove a vital fact is no more
than a mere scintilla, or the evidence establishes
conclusively the opposite of the vital fact. City of
Keller, 168 S.W.3d at 810. If there is more than a
scintilla of evidence supporting the jury's finding, the
legal sufficiency challenge must fail. Id. There is
more than a scintilla of evidence "when the evidence as
a whole rises to a level enabling reasonable and fair-minded
people to have different conclusions." Waste Mgmt.
of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434
S.W.3d 142, 156 (Tex. 2014). However, if the evidence is so
weak that it only creates a mere surmise or suspicion of its
existence, it is regarded as no evidence. Id.
factual sufficiency review, we consider and weigh all the
evidence. Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 406-07 (Tex. 1988). We may set aside the finding
only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Ellis,
971 S.W.2d at 407; Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986) (per curiam).
factfinder is the sole judge of the credibility of the
witnesses and the weight to be given their testimony.
City of Keller, 168 S.W.3d at 819 (legal sufficiency
review); Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003) (factual sufficiency review).
When presented with conflicting testimony, the fact finder
may believe one witness and disbelieve others, and it may
resolve inconsistencies in the testimony of any witness.
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.
1986). We may not substitute our own judgment for that of the
factfinder merely because we might reach a different result.
City of Keller, 168 S.W.3d at 822-23; Golden
Eagle Archery, 116 S.W.3d at 761.
of Care, Breach
respect to Panhandle, the charge instructed the jury that
"negligence" meant failing to exercise ordinary
care in crane operations and "ordinary care" meant
that degree of care which would be used by a crane company of
ordinary prudence under the same or similar circumstances. In
its first issue, Panhandle contends there was no expert
testimony, or any other evidence, of the standard of care
applicable to Cantu's negligence claim or Panhandle's
failure to provide that care. Alternatively, Panhandle
asserts the evidence of the applicable standard and breach is
factually insufficient to support the jury's verdict.
Cantu responds that expert testimony from Panhandle employees
Brandon Hillard, Collier, and Rodgers established
Panhandle's duty to exercise ordinary care in crane
operations included providing taglines with the crane's
rigging under the same or similar circumstances and Panhandle
negligently failed to do so.
testimony is necessary when the alleged negligence is of such
a nature that it is not within the experience of a layman.
Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).
Pursuant to Rule of Evidence 702, "[a] witness who is
qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion
or otherwise if the expert's scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue." Tex. R. Evid. 702. A witness who has gained
expertise through practical experience may be qualified as an
expert. See, e.g., Great Am. Ins. Co. v. Hamel, 444
S.W.3d 780, 804-05 (Tex. App.-El Paso 2014), rev'd on
other grounds, 525 S.W.3d 655 (Tex. 2017) (general
contractor/inspector could testify as expert on water
damage); C.C. Carlton Indus., Ltd. v. Blanchard, 311
S.W.3d 654, 658 (Tex. App.-Austin 2010, no pet.)
(construction); Potter v. Anthony Crane Rental of Tex.,
Inc., 896 S.W.2d 845, 851-52 (Tex. App.-Beaumont 1995,
writ denied) (crane operations); Walter Baxter Seed Co.
v. Rivera, 677 S.W.2d 241, 244 (Tex. App.- Corpus
Christi 1984, writ ref'd n.r.e.) (farming). Further, an
expert need not use "magic words," such as
"standard of care;" the substance and context of
the expert's testimony will be determinative. See,
e.g., Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018);
cf. Merrell Dow ...