McMillan v. Hearne

          Date Submitted: May 8, 2019

          On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 85944

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          RALPH K. BURGESS, JUSTICE

         On November 2, 2016, Kelly Shane Hearne filed a personal injury suit against his employer, Charles Duncan McMillan d/b/a Anthony Sign Company (McMillan), a nonsubscriber to the workers' compensation system. See Tex. Lab. Code Ann. § 406.033. Hearne alleged that on September 14, 2015, while he was at the top of a commercial extension ladder, he fell as a result of the ladder slipping after McMillan stopped supporting the ladder at the bottom. The jury found that McMillan was liable for Hearne's injuries, and it awarded him past and future damages in the amount of $427,818.38.

         McMillan appeals, maintaining that (1) the evidence was legally and factually insufficient to support the jury's finding of negligence and (2) the trial court committed reversible error by failing to offset the jury's award of past medical damages in the appropriate amount. Hearne cross-appealed, contending that (1) the trial court erred in failing to render judgment on the jury verdict for all the past damages awarded by the jury, (2) even if the trial court had authority to award an offset to McMillan, it erred in doing so because the offset violated the collateral source rule and McMillan failed to obtain findings on which he had the burden of proof, and (3) alternatively, the judgment should be modified to reflect an offset in past damages in the amount of $65,521.88.

         For the reasons below, we affirm the trial court's judgment, as modified.

         I. Background

         In September 2015, McMillan had been hired to restore the marquee sign of the Grand Theatre in Paris, Texas. At the time, Hearne had been working for McMillan for about twenty-five years. According to Hearne, per McMillan's instructions, he had gone to the theatre in the company bucket truck where he tried, but failed, to reach the sign by using the bucket. In a subsequent effort to reach the sign, Hearne intended to access the roof from the inside of the theatre. To that end, Hearne contacted McMillan and asked him to bring the thirty-foot-long extension ladder that was kept on McMillan's truck. McMillan complied with Hearne's request and brought the ladder to the theatre.

         Hearne testified that after McMillan arrived, he carried the "fly" or expansion portion of the ladder inside the theatre, while McMillan carried the bottom portion of the ladder. According to Hearne, the two of them began to position the fly portion of the ladder to access the theater attic. Hearne then climbed the ladder while McMillan held it at the bottom. When Hearne reached the attic, he realized his flashlight was not working. Hearne told McMillan that he needed to retrieve another flashlight or find some new batteries. Hearne testified that he believed McMillan would wait for him to descend the ladder.

         Hearne began descending the ladder; however, when he looked down, he saw that McMillan had walked away from the ladder and was exiting the theatre. According to Hearne, the ladder almost immediately slipped, and Hearne fell to the concrete floor. Hearne attempted to save himself by reaching around him, but because the attic floor was made of smooth plywood, there was nothing he could hold onto.

         McMillan disputed Hearne's version of events. McMillan testified that when he arrived at the theatre, he carried the extension ladder into the building and placed it on the floor near the area in which Hearne was standing. McMillan testified that he told Hearne "to hold on and that he was going to go retrieve a flashlight." When asked where Hearne was located at the time he went to get the flashlight, McMillan stated, "Standing right where he had been, right between where I was standing and where the hatch was -- or where the -- area of the hatch." According to McMillan, both Hearne and the extension ladder were standing on the floor when he walked out of the theatre.

         McMillan explained that the truck was near the theatre door. He stated, "So I just walked around it, opened up the side bin, and was about to -- I think I picked up the flashlight, and then I heard [Hearne] screaming." McMillan ran back inside the theatre where he saw Hearne "laying on the floor in pain." McMillan stated that the ladder was on the ground in its extended position. Thus, McMillan maintained that he was not present when Hearne fell and that he never supported the ladder for Hearne.

         Immediately following his fall, Hearne was airlifted to the Medical Center of Plano, where he received surgery on his hip. Two or three days later, he underwent surgery on his wrist, elbow, and shoulder. According to Hearne, three of his ribs and his collarbone were also broken. Although McMillan did not carry workers' compensation insurance, he provided an Occupational Injury Benefit Plan (the Plan) that paid certain benefits, including medical expenses to, or on behalf of, Hearne. After the incident, Hearne sued McMillan for negligence. McMillan sought an offset against the damages paid to Hearne for benefits paid by the Plan. The jury found in favor of Hearne. The trial court found that McMillan was entitled to an offset in the amount of $91,911.02. It then entered judgment in favor of Hearne for the amounts awarded by the jury, less offset. This appeal followed.

         II. The Evidence Was Sufficient to Support the Trial Court's Judgment Regarding McMillan's Liability to Hearne

         A. Introduction

         Hearne contends that McMillan was negligent when he, among other things, (1) failed to adequately help Hearne in the performance of his work, (2) failed to provide a safe place for McMillan to work when he provided him with an unsafe ladder, and (3) failed to inspect the ladder. In his first and second issues, McMillan contends that there was legally and factually insufficient evidence to support the jury's finding of negligence.

         B. Standard of Review

         In determining legal sufficiency, the appellate court examines "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In looking at the evidence, we credit favorable evidence if a reasonable jury could and disregard evidence unless a reasonable jury could not. Id. The evidence is legally insufficient if

(1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence 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 mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.

Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 618–19 (Tex. App.-Fort Worth 2011, pet. denied) (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998)); see Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010).

         More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

         When reviewing a jury verdict for factual sufficiency of the evidence, we consider and weigh all the evidence and only set aside the verdict if "we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered." Chesser, 356 S.W.3d at 619 (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)); see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

         C. Applicable Law

         To prove negligence, evidence must be produced to establish a duty, a breach of duty, and damages proximately caused by the breach. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004). Because McMillan is a worker's compensation nonsubscriber, McMillan is not afforded the common-law defenses of contributory negligence, assumption of the risk, or negligence of a fellow servant. See Tex. Lab. Code Ann. § 406.033(a); Kroger v. Keng, 23 S.W.3d 347, 350 (Tex. 2000). Thus, there are only two defenses available to McMillan, namely, (1) that he was not liable for negligence proximately causing Hearne's injuries or (2) that Hearne was responsible for some act which was the sole proximate cause of the occurrence. See W. Star Transp. v. Robinson, 457 S.W.3d 178, 187 (Tex. 2015). "Accordingly, if any negligent act by [McMillan] was a substantial factor in bringing about [Hearne's] fall and subsequent injuries, and if that event was a foreseeable occurrence without which the fall and injuries would not have occurred, then liability has been established." See id.

         D. Analysis

         1. McMillan Owed a Duty of Care to Hearne, and He Breached that Duty

         a. Applicable Law

         An employer has a primary, continuing, and nondelegable duty to provide a safe place and safe conditions in which employees may work. Cabrera v. Delta Brands, Inc., 538 S.W.2d 795, 797 (Tex. Civ. App.-Texarkana 1976, writ ref'd n.r.e.). In addition, an employer has a duty to furnish the employee with safe and suitable equipment so that he may carry on the work with reasonable safety. Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 401 (1934), overruled on other grounds by Wright v. Gifford-Hill & Co., 725 S.W.2d 712 (Tex. 1987). An employer also has a duty to provide safety regulations. Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544 (Tex. App.-Texarkana 1996, writ denied).

         McMillan contends that the "simple tool doctrine" negated any duty he had to, among other things, furnish a safe ladder or train Hearne on how to safely operate the ladder. The simple tool doctrine relieves an employer of the duty to inspect a tool if that tool is committed to the control and care of the employee and is of such character that the employee who handles it should be fully acquainted with its condition. City of Houston v. Howard, 786 S.W.2d 391, 395 (Tex. App.- Houston [14th Dist.] 1990, writ denied). In support of his position, McMillan relies on Swearingen v. Bell, 307 S.W.2d 132 (Tex. Civ. App.-San Antonio 1957, no writ).

         In Swearingen, the plaintiff, a carpenter, fell off a four-foot ladder while doing repair work for his employer and was injured as a result of the fall. Citing the simple tool doctrine, the San Antonio Court of Appeals held that the ladder was a common tool. Id. at 133. It then held that "a master is not required to inspect the common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses." Id. at 133.

         b. Discussion

         Pointing out that Hearne had been McMillan's employee for more than twenty-years and that he was required to use ladders frequently in carrying out his tasks, McMillan maintains, "Having entrusted the ladder to Mr. Hearne's use, as a common tool, [he] owed no duty to instruct Mr. Hearne on its use, warn him of its dangers, or conduct regular safety inspections of the ladder." Hearne conceded that he used the ladder frequently and was aware the ladder had been modified.^[1]However, although Hearne had used the ladder on a frequent basis, the evidence in this case does not show that the ladder was committed to Hearne's exclusive control or that Hearne was responsible for its care.

         Moreover, the ladder was a modified, thirty-foot commercial extension ladder consisting of two separate pieces^[2] and not, as was the case in Swearingen, a four-foot ladder. More importantly, however, because McMillan was not afforded the common-law defenses of contributory negligence, assumption of the risk, or negligence of a fellow employee due to his nonsubscriber status, Hearne's knowledge of the ladder's components, its use, or any safety precautions known by Hearne is of little, if any, consequence. See Kroger, 23 S.W.3d at 350. For these reasons, we find the simple tool doctrine inapplicable in this case, and McMillan had a duty to provide a safe work environment, including, among other things, ...