United Scaffolding, Inc. v. James Levine, 537 S.W.3d 463

Background

On Dec. 26, 2005 James Levine (Valero employee) fell through a hole in a scaffold at Valero’s Port Arthur refinery; he sued United Scaffolding, Inc. (USI), alleging the scaffold was improperly assembled and not secured.
USI built the scaffold about a week earlier under an ongoing contract; Valero policy and OSHA required a competent-person inspection and a tag before worker use; USI typically inspected and updated tags when Valero requested use.
First trial (2008): jury returned a general-negligence verdict finding USI 51% responsible; trial court granted a new trial; multiple mandamus proceedings followed before the second trial occurred.
Second trial (2014): court again submitted only a general-negligence question (no premises-liability elements); jury found USI 100% liable and awarded almost $2M; USI moved for JNOV arguing the claim actually sounded in premises liability and general-negligence findings could not support recovery.
The Texas Supreme Court held that Levine’s claim in substance was premises liability (scaffold condition left on premises) and that submitting only a general-negligence question (without premises-liability elements) cannot support recovery; it reversed and rendered judgment for USI.

Issues

Issue	Plaintiff's Argument (Levine)	Defendant's Argument (USI)	Held
Whether Levine’s claim was premises liability or ordinary negligence	Levine argued his claim was ordinary negligence because USI had relinquished control of the scaffold before the accident	USI argued the claim sounded in premises liability because USI retained a right to control the scaffold and thus owed premises duties	Held: Claim sounds in premises liability; injury arose from a physical condition (unsecured plywood/hole) and evidence + pleadings show USI retained sufficient right to control the scaffold, so premises elements were required
Whether a general-negligence submission can support recovery in a premises-defect case	Levine argued submission was proper and USI waived any charge objection by not objecting or by requesting similar charge in the first trial	USI argued general-negligence findings are immaterial in a premises-defect case and plaintiff waived the premises claim by failing to request premises elements/obtain findings	Held: A simple general-negligence question without Corbin premises elements cannot support recovery in a premises-defect case; Levine waived the premises claim by not obtaining required findings
Whether USI waived or invited error / preserved complaint about the charge	Levine argued USI waived by not objecting and invited error by requesting the negligence question in the first trial	USI argued it had no duty to object to a claim-omission, did not invite error in the second trial, and preserved the issue via JNOV motion citing Olivo	Held: USI did not waive or invite the error in the second trial and preserved the submission complaint by moving for JNOV; defendant need not correct plaintiff’s omission of a necessary theory
Reviewability of the trial court’s new-trial order by direct appeal after retrial	Levine argued new-trial orders are reviewed via mandamus and USI waited too long; appellate court said appeal not permitted after merger into final judgment	USI urged that direct appellate review after final judgment should be available	Held: Court declined to decide this question as disposition on the submission issue afforded USI full relief

Key Cases Cited

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983) (elements required to prove premises-liability defect)
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) (a premises-defect case improperly submitted only as general negligence requires rendition when plaintiff fails to obtain required findings)
Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380 (Tex. 2016) (distinguishing negligent activity from premises defect and treating slip/trip/fall as premises-defect claims)
Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016) (premises-liability is a branch of negligence; duty analysis depends on activity vs condition and ownership/control)
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (negligent-activity and premises-defect are distinct theories; plaintiffs cannot plead around higher premises standards)
Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (slip-and-fall from a condition is premises liability where no contemporaneous activity caused the injury)
Redinger v. Livingston, Inc., 689 S.W.2d 415 (Tex. 1985) (general contractor in control may be liable like owner/occupier)
Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (general-negligence findings immaterial when premises-defect elements are omitted)