Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brazos Contractors Development, Inc. v. Jefferson

Court of Appeals of Texas, Fourteenth District

December 19, 2019

BRAZOS CONTRACTORS DEVELOPMENT, INC., Appellant
v.
HENRY JEFFERSON, Appellee

          On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 2014-28653

          Panel consists of Justices Christopher, Hassan, and Poissant

          MAJORITY OPINION

          MEAGAN HASSAN JUSTICE.

         Appellee Henry Jefferson sued appellant Brazos Contractors Development, Inc. ("Brazos"), seeking damages for injuries incurred after an accident at a construction site. The parties proceeded to trial and the jury returned a verdict for Jefferson. Brazos appealed and asserts issues challenging (1) the jury charge and the jury's responses thereto; (2) the sufficiency of the evidence to support the jury's liability findings; and (3) the sufficiency of the evidence to support the jury's damages awards. For the reasons below, we affirm.

         Background

         In 2012, Realm Realty retained Brazos as general contractor to oversee the construction of a Dollar Tree store in Houston (the "Dollar Tree project"). Brazos hired subcontractors to work on the project, one of which was T&T Hoisting ("T&T"), a steel erection company owned and managed by Rebecca Rutherford. Rutherford hired two crew members from Craigslist to work on the Dollar Tree project. Jefferson, another member of the Dollar Tree project crew, had worked on prior T&T projects.

         The T&T-Brazos subcontract was procured by W.T. Lander, who owned and operated Rutland Construction Services ("Rutland"). Rutland brokered construction contracts and previously had secured several contracts for T&T. The T&T-Brazos subcontract states, in relevant part:

DESCRIPTION OF WORK: In accordance with the project specifications and drawings, the Subcontractor will furnish and pay for all necessary: . . . Labor, tools, insurances, taxes, and equipment to complete the construction in a timely, professional, and workmanlike manner. Labor only for the erection of all steel as per plans and under the direction of David Kaszak.

         David Kaszak was Brazos's project manager for the Dollar Tree project. The project was scheduled to begin on May 17, 2012, and conclude six days later.

         I. Jefferson's Accident

         On May 21, 2012, the T&T crew was installing steel cross braces to the store's frame. Jefferson was hit in the face with a steel brace during the installation process, sustaining multiple fractures, and then was taken by ambulance to a regional hospital and transferred via Life Flight to a major trauma hospital.

         The jury heard conflicting evidence with respect to most of the relevant events precipitating Jefferson's accident. There was no consensus regarding who controlled the job site, who directed the installation of the cross braces, the proper procedure for cross-brace installation, or how the accident occurred.

         Control over the Job Site. A great deal of testimony at trial was devoted to developing evidence regarding control of the work at the Dollar Tree project.

         According to Rutherford and Lander, Kaszak was told (before the Dollar Tree project began) that T&T's foreman was working on a separate job and would be unavailable for the Dollar Tree project. Rutherford and Lander testified that Kaszak said he would run the T&T crew himself.

         Kaszak testified, denying that he said he would supervise the T&T crew. According to Kaszak, Jefferson was "in charge" of the T&T crew. Kaszak also said he had no training or experience with the erection of cross braces. Kaszak had been at the site of the installation earlier that day but was not at the job site when the accident occurred.

         Andre Simon, a member of the T&T crew working at the Dollar Tree project, recalled seeing an unnamed man "who carried a set of plans with him" and was at the job site about 70-80% of the time. Simon said the man instructed the crew with respect to steel erection and "was the one directing things" on the job site. But Simon also testified that Jefferson "was the guy making the day-to-day decisions and assignments for the T&T crew" and was the ultimate authority with respect to how to do the job.

         According to Jefferson, if Rutherford and Lander were not on the job site, he was in charge of giving directions to the other crew members.

         How the Accident Occurred. The jury heard testimony from two witnesses who were present at the time of the accident: Jefferson and Simon.

         According to Jefferson, he, Simon, and James[1] were working at the Dollar Tree project on the day of the accident. Describing Simon and James as "rookies," Jefferson said they were inexperienced with respect to steel erection. At the time of the accident, Jefferson said James was operating the forklift and maneuvering a cross brace towards Simon, who was standing on scaffolding. According to Jefferson, Simon failed to grab the top of the brace and the brace "started swinging in the air," eventually hitting Jefferson in the face.

         At trial, defense counsel also played portions of Jefferson's deposition describing the accident. In his deposition, Jefferson stated that an additional person was at the job site the day of the accident: a man named Javier who had been sent by Rutherford and Lander to help the T&T crew install the cross braces. Jefferson said Javier was "right there beside him" and had instructed him to connect the cross brace beginning with the bottom. Jefferson said "they didn't have ahold of [the brace] up on top" and it swung into him while he was trying to connect it.

         Simon's description of the accident was markedly different. Simon said four men were working at the job site the day of the accident: Simon, Jefferson, James, and a man named Bashar Dawlett, who was operating the forklift. Simon testified that each cross brace was raised by the forklift, attached at the bottom corner of the steel frame, and then attached at the top of the steel frame. Simon stated that either Jefferson or Dawlett changed the procedure for attachment of the final brace and ordered that it be connected at the top of the frame first. Simon said that after the brace was connected to the top of the frame, Jefferson was trying to connect the brace at the bottom of the frame when it got stuck on the frame's column. Using the forklift, Dawlett continued to raise up on the brace while Simon and James yelled at him to stop; Simon said the brace bowed until it came loose and hit Jefferson in the face.

         Dawlett testified at trial and said while he was not present at the Dollar Tree project at the time of the accident, he had been at the job site "for about an hour" earlier that morning. Dawlett recalled seeing four T&T crew members working at the site: one driving a forklift, one on the phone, and two working on scaffolding.

         George Charles, Jr., a construction consultant, testified as an expert witness. When questioned regarding Simon's and Jefferson's conflicting accounts of the accident, Charles agreed with Simon's version of events and stated he "believe[d] the brace got hung up or stuck. Based upon my experience in the industry, that would be the most likely probability of what happened on this particular brace."

         Rutherford said she spoke with Simon and James after the accident and was informed the brace was attached at the top of the steel frame when the bottom bowed out and hit Jefferson, corroborating Simon's testimony at trial.

         Proper Procedure for Cross-Brace Installation.

         Simon testified that there was a change in the cross-brace installation procedure (from a bottom-to-top installation to a top-to-bottom installation). But the evidence was not conclusive with respect to whether either of these methods is the "correct" installation method.

         Testifying at trial, Rutherford and Devin Bendon (a T&T crew member who was not working on the day of Jefferson's accident) acknowledged that cross braces can be installed both ways. But according to Lander, Simon, and Charles, cross braces should be installed bottom-to-top.

         The Forklift Used for Cross-Brace Installation.

         Evidence also was developed with respect to the type of forklift used during the cross-brace installation.

         When work on the Dollar Tree project began, T&T's forklift was not available and Brazos rented a forklift for the installation. According to Kaszak, Lander said he wanted a telescopic-boom forklift for the project but only a straight-mast forklift was available for rent. Kaszak testified that a telescopic-boom forklift is preferred in the steel erection trade and stated it would make the job easier and faster. Charles also opined that a straight-mast forklift was not the proper type of equipment to use during the cross-brace installation. Rutherford and Lander both testified that a straight-mast forklift was fine for the cross-brace installation.

         II. Trial

         In May 2014, Jefferson sued Brazos, Rutherford d/b/a T&T, and Lander d/b/a Rutland, asserting claims for injuries arising out of the May 2012 accident. The parties proceeded to trial in June 2017 and the jury heard evidence addressing the parties' business relationships, the accident, and Jefferson's injuries. The jury charge separately inquired whether Brazos was negligent under three different theories of negligence: (1) negligently breaching a duty of care arising from a contractual duty of control; (2) negligently breaching a duty of care arising from an actual exercise of control; and (3) negligently performing services undertaken for Jefferson's protection. With respect to these theories, the jury charge stated as follows:

Question No. 1
Did the negligence, if any, of Brazos Contractors Development, Inc. proximately cause the injuries sustained by Henry Jefferson?
For the purposes of this question only, you are instructed that Brazos Contractors Development, Inc. retained some control over the erection of the steel frame, other than the right to order the work to start or stop or to inspect progress or receive reports.
* * *
Answer "Yes" or "No."
Answer: ___
Question No. 2
Did Brazos Contractors Development, Inc. exercise some control over the manner in which the cross-braces in question w[ere] installed, other than the right to order the work to start or stop or to inspect progress or receive reports?
Answer "Yes" or "No."
Answer: ___
* * *
Question No. 4
Did the negligence, if any, of Brazos Contractors Development, Inc. proximately cause the injuries sustained by Henry Jefferson?
For the purpose of this question only, with respect to installation of the cross-braces at the construction site, Brazos Contractors Development, Inc. was negligent if -
a. Brazos Contractors Development, Inc. undertook to perform services that it knew or should have known were necessary for Henry Jefferson's protection, and
b. Brazos Contractors Development, Inc. failed to exercise reasonable care in performing those services; and either
c. Henry Jefferson relied upon Brazos Contractors Development, Inc.'s performance; or
d. Brazos's performance increased the plaintiffs' [sic] risk of harm.
* * *
Answer "Yes" or "No."
Answer: ___

         The jury answered "Yes" to Question No. 1 and "No" to Question No. 2. Because Question No. 3 was predicated on an affirmative answer to Question No. 2, the jury did not respond to that question. The jury answered "No" to Question No. 4.

         Question No. 5 asked the jury whether Jefferson's injuries were proximately caused by the negligence of (1) Rutherford d/b/a T&T, (2) Lander d/b/a Rutland, or (3) Jefferson. The jury responded "Yes" for Rutherford and Lander and "No" for Jefferson.

         Question No. 6 asked the jury to allocate responsibility between Brazos, Rutherford, Lander, and Jefferson, to which the jury responded as follows:

a. Brazos Contractors Development, Inc.
Answer: 35%
b. Rebecca Rutherford d/b/a T&T Hoisting
Answer: 35%
c. WT Lander d/b/a Rutland Construction Services
Answer: 30%
d. Henry Jefferson
Answer: 0%

         Total 100%

         The jury awarded damages for past and future physical pain, past and future disfigurement, past and future physical impairment, and future medical care expenses, for a total award of $2.15 million. Of this amount, the jury awarded Jefferson $500, 000 for future medical care expenses and $250, 000 for future physical impairment. The trial court rendered judgment against Brazos and Rutherford in accordance with the jury's verdict. Brazos timely appealed.[2]

         Analysis

         Brazos's issues on appeal address (1) the submission, wording, and materiality of Question No. 1; (2) the sufficiency of the evidence to support the jury's findings with respect to the duty, breach, and proximate causation elements of Jefferson's negligence claim; and (3) the sufficiency of the evidence to support the damages awarded for Jefferson's future medical care expenses and future physical impairment. We overrule Brazos's issues on appeal and affirm the trial court's final judgment.

         I. The Trial Court Did Not Err by Submitting Question No. 1 to the Jury or by Entering Judgment for Jefferson Based on the Jury's Finding in Response to Question No. 1.

         In three sub-issues addressing Question No. 1, Brazos asserts (1) there is no evidence Brazos retained contractual control over Jefferson's work or the injury-causing activity; (2) the question misstates the law regarding control and improperly comments on the weight of the evidence; and (3) the jury's response to the question was immaterial. We address these sub-issues individually.

         A. Brazos Retained Contractual Control Over T&T's Work Under the Terms of the Brazos-T&T Subcontract.

         Question No. 1 inquired whether Brazos was negligent under the theory that Brazos retained a contractual right of control over the erection of the steel frame. Challenging the submission of this question, Brazos contends that, as a matter of law, it did not retain a contractual right of control over the way in which T&T performed its work and therefore owed no duty to T&T's employees, including Jefferson. Brazos raised this objection at the charge conference and received a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.