United Scaffolding, Inc. v. James Levine, 2015 Tex. App. LEXIS 9285

Valero owned a refinery; United Scaffolding, Inc. (USI) owned scaffolds and contracted with Valero to provide/inspect scaffolds when Valero requested a competent-person inspection under OSHA/contract terms.
On Dec. 26, 2005, Valero employees (including Levine, a pipefitter) used a USI scaffold without USI inspecting it that day; the scaffold bore a tag indicating a same-day inspection, but the tag was not preserved as evidence.
Levine stepped on unsecured plywood on the scaffold, fell but caught himself, and alleged injuries; he sued USI asserting negligence and premises liability.
First jury trial (2008) found USI 51% negligent, Levine 49% negligent, awarded only $178,000 for future medical expenses and zero for other damages; trial court granted Levine a new trial as against the great weight of the evidence; mandamus proceedings and Texas Supreme Court involvement led to amended orders and a second new-trial order.
Second jury trial (2014) found USI negligent, no contributory negligence by Levine, and awarded over $1.92 million; USI appealed raising (1) charge error (negligence vs premises liability) and (2) challenge to the trial court’s grant of the prior new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether submission of a general negligence question (instead of premises liability) was error	Levine: negligence was appropriate because USI did not control the premises on the incident date	USI: owning the scaffold and contractual inspection duties made this a premises-defect/control issue requiring premises-liability submission	The court held negligence submission proper; USI lacked sufficient control that would trigger premises-liability treatment
Whether the trial court abused its discretion by granting Levine a new trial (first trial)	Levine: trial court properly found jury’s zero-damage findings against the great weight and preponderance of the evidence; alternative: order not reviewable on direct appeal	USI: grant of new trial invaded jury province and was unsupported; urges merits review on appeal	The court declined to reach the merits on appeal, holding direct appellate review is generally not permitted and USI did not raise an applicable exception; thus the judgment stands

City of San Antonio v. Parra, 185 S.W.3d 61 (Tex. App. 2005) (distinguishing premises defect from negligence as a legal question)
Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864 (Tex. 2002) (legal-question review of premises-defect characterization)
Reliance Nat. Indem. Co. v. Advanced Temporaries, Inc., 227 S.W.3d 46 (Tex. 2007) (standard of review for legal questions)
Clayton W. Williams, Jr., Inc. v. Olivio, 952 S.W.2d 523 (Tex. 1997) (premises defect vs negligence distinction)
Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (injury from activity = negligence; hazardous condition = premises liability)
H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992) (same principle distinguishing theories)
Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983) (elements for premises-defect liability)
County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002) (definition of control and responsibility for premises)
In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2009) (limits on appellate review of new-trial orders)
Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559 (Tex. 2005) (new-trial orders generally not reviewable on direct appeal)
In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (mandamus merits review of reasons in new-trial orders)