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Panhandle Steel Erectors, Inc. v. Cantu

Court of Appeals of Texas, Fifth District, Dallas

July 17, 2019

LUIS CANTU, Appellee

          On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-14032

          Before Justices Bridges, Brown, and Nowell



         Appellant 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 judgment.


         In July 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.

         Design 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.

         Cantu, 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.

         Members 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, [1] 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.

         The 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.

         On 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.

         Panhandle 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.

         Panhandle 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.

         On the 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 injuries.

         The jury charge asked if the negligence of Panhandle, Wal-Mart, Design Air, or Cantu proximately caused the occurrence in question.[2] 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.[3] The trial court overruled the objections and denied the motions.


         To 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.

         When, 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.

         We will 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.

         For a 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).

         The 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.

         Standard of Care, Breach

         With 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.

         Expert 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 ...

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