Court of Appeals of Texas, Sixth District, Texarkana
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, ...