4FRONT ENGINEERED SOLUTIONS, INC., Petitioner, v. Carlos ROSALES, Individually, and Rosa Mejia, as Next Friend of Carlos Rosales, Jr., Respondents
No. 15-0298
Supreme Court of Texas.
December 23, 2016
505 S.W.3d 905
Argued October 4, 2016
Opinion delivered: December 23, 2016
Brendan K. McBride, The McBride Law Firm, San Antonio TX, Jody Ray Mask, Cowen Mask Blanchard, Brownsville TX, Lino Humberto Ochoa, Ricardo Antonio Garcia, Law Firm of Garcia Ochoa & Mask, McAllen TX, for Respondents.
Lawrence Matthew Doss, Mullin Hoard & Brown, LLP, Lubbock TX, for Amicus Curiae Texas Association of Defense Counsel.
Justice Boyd delivered the opinion of the Court.
A subcontractor sued a premises owner for personal injuries the subcontractor suffered while working with a contractor on the owner‘s premises. A jury found that all three parties negligently caused the accident and assigned seventy-five percent of the responsibility to the owner, fifteen percent to the contractor, and ten percent to the subcontractor. The premises owner аppealed, challenging the judgment on several alternative grounds. We conclude that no evidence supports the jury‘s liability findings against the premises owner. We therefore reverse the court of appeals’ judgment, render judgment in favor of the premises owner, and remand the case to the trial court for further proceedings.
I.
Background
4Front Engineered Solutions owns a distribution warehouse in Pharr, Texas. 4Front‘s warehouse and safety manager, Antonio Ornelas, contracted with Francisco Reyes, a licensed electrician, to repair a lighted sign that hung on an exterior wall about twenty feet above the warehouse‘s entrance. Reyes had previously performed services for 4Front without incident, sometimes working at heights above twenty feet and usually using equipment he borrowed from 4Front. For this job, Reyes subcontracted with Cаrlos Rosales, another electrician, to assist him.
Reyes testified that when Ornelas called him about repairing the sign, Reyes asked if he could use a “scissors lift”1 that he had previously used at the warehouse, and Ornelas told him he could. When Reyes and Rosales arrived to begin the job, however, Ornelas told Reyes that the scissors lift was not available but that Reyes could use 4Front‘s stand-up forklift instead. Reyes had previously usеd the same forklift on another job inside 4Front‘s warehouse. Reyes testified that Ornelas asked Reyes if he was able to operate the forklift to reach and repair the sign, and Reyes (who speaks limited English) answered, “I can move it, but slowly.”
Reyes and Rosales worked without incident for three to four hours on the first day and returned two days later to complete the job. On both days, Reyes operated
Rosales sued 4Front and Reyes for negligence, negligence per se,2 gross negligence, and premises liability. A jury found that 4Front negligently entrusted the forklift to Reyes and negligently failed to warn about or make safe a dangerous condition on its premises. The jury also found that Reyes and Rosales were negligent and assigned seventy-five percent of the responsibility to 4Front, fifteen percent to Reyes, and ten percent to Rosales. The jury determined that Rosales‘s actuаl damages totaled roughly $8 million. Finally, the jury found that 4Front was grossly negligent and awarded $5 million as exemplary damages. The trial court reduced the amount of exemplary damages but otherwise entered judgment based on the jury‘s verdict. The court of appeals reversed the gross-negligence finding, struck the award of exemplary damages, and affirmed the remainder of the judgment. --- S.W.3d ----. We granted 4Front‘s petition for review.
4Front raises several arguments. Challenging liability on both the negligent-entrustment and premises-liability claims, 4Front argues that the court of appeals erred by holding that Chapter 95 of the Texas Civil Practice and Remedies Code does not apply to Rosales‘s claims.3 Focusing on the negligent-entrustment theory, 4Front argues that (1) it owed no legal duty to Rosales because it did not control the manner in which Reyes operatеd the forklift;4 (2) negligent entrustment applies only to automobiles and similar vehicles, not to industrial equipment like a forklift;5
We conclude that, even if Chapter 95 does not apply, even if 4Front owed a negligent-entrustment duty to Rosales, even if the negligent-entrustment theory applies to forklifts, and even if the OSHA evidence was admissible—all issues that we need not and do not decide in this case—no evidence supports the jury‘s findings of negligent entrustment or premises liability.
II.
Negligent Entrustment
When determining whether legally sufficient evidence supports a jury finding, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The evidence is legal-ly sufficient if there is more than a scintilla of evidenсe on which a reasonable juror could find the fact to be true. Rocor Int‘l, Inc. v. Nat‘l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002); Cont‘l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).
To establish 4Front‘s liability for negligent entrustment, Rosales had to prove that:
- 4Front entrusted the forklift to Reyes;
- Reyes was an unlicensed, incompetent, or reckless forklift operator;
- at the time of the entrustment, 4Front knew or should have known that Reyes was an unlicensed, incompetent, or reckless operator;
- Reyes was negligent on the occasion in question; and
- Reyes‘s negligence proximately caused the accident.
See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007).6 The first, fourth, and fifth elements are undisputed here: 4Front entrusted the fоrklift to Reyes, Reyes operated it negligently by driving it off the sidewalk‘s edge, and Reyes‘s negligence proximately caused the accident. But 4Front contends that Rosales offered no evidence that Reyes was an incompetent or reckless forklift operator or that 4Front knew or should have known that he was.
Rosales did not offer or rely on any affirmative evidence that 4Front “knew” that Reyes was incompetent or reckless. Instead, he relied on evidence that 4Front “should have known,” and in fact would have known, that Reyes was incompetent or reckless if it had only inquired about Reyes‘s qualifications. In particular, Rosales points to evidence that (1) 4Front‘s manager, Ornelas, admitted that he was familiar with the forklift manual‘s instruction that all operators must be licensed and trained and that the forklift be operated оnly indoors on a flat surface; (2) Ornelas failed to ask Reyes if he was OSHA-certified or had any other formal training; (3) other 4Front employees said they would not have allowed Reyes to operate the lift for that job, at least not without first confirming his qualifications and training; and (4) an OSHA regulation and interpretation letter require that forklift owners must ensure that all drivers, including independent contractors, are adequately trained and certified.
We agree with 4Front that none of Rosales‘s evidence supports the jury‘s negligent-entrustment finding. In reaching this conclusion, we emphasize the important distinction between an operator who is “incompetent or reckless” and one who is
We find no such evidence in this record. There is no evidence that Reyes had ever previously caused or evеn had any accidents when operating a forklift or any similar equipment, or that he had ever recklessly or even negligently operated such equipment. See Mayes, 236 S.W.3d at 758 (finding no evidence that truck driver was, or that owner knew or should have known that he was, incompetent or reckless despite a prior citation for driving without liability insurance, a citation for “exceeding the speed limit by about five miles per hour,” and а prior accident in which he rear-ended a vehicle at a stoplight); Williams, 699 S.W.2d at 575 (finding no evidence that truck driver “had any prior speeding tickets, had caused any accidents before this one, was not experienced at driving large trucks, ... was in fact an incompetent or reckless driver, or that [defendant] had actual notice that [he] was a dangerous driver“); id. at 573-74 (noting that in some cases “habit evidence has beеn offered to show that the driver was blatantly incompetent or reckless“). There was no evidence of Reyes‘s habits or prior experiences that would tend to show that he could not competently operate the forklift or would do so recklessly. To the contrary, the evidence was that Reyes had previously operated the forklift and other similar equipment at 4Front‘s warehouse without incident, аnd that when asked if he could operate it on this occasion, he replied, “I can move it, but slowly.”
Nevertheless, Rosales points to evidence indicating that Reyes was not formally trained or certified as a forklift driver, and that 4Front could and would have discovered this had it only made further inquiries, as OSHA regulations and 4Front‘s own internal policies required it to do. We agree with Rosales that a claimant can prоve that a defendant “should have known” a fact by relying on evidence that the defendant should reasonably have inquired about that fact but failed to do so. See Williams, 699 S.W.2d at 575 (concluding that a jury could reasonably infer that the defendant “should have known” that the driver did not have a commercial operator‘s license from evidence that defendant assigned the driver to a heavy truck yet never asked the driver if he had a valid commercial license); Mundy, 206 S.W.2d at 590 (noting that the fact that the defendant “by the exercise of due care could have ascertained that [the driver] did not have a license may be alleged and proved by the plaintiff for the purpose of showing that the defendant‘s agents were in fact negligent in permitting [the driver] to take and drive the automobile“). But to “sustain such a claim based on a failure to screеn,” Rosales had to prove that the inquiries that 4Front did not make would have “revealed the risk” that establishes liability for negligent entrustment. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010). In other words, Rosales had to show that 4Front would have discovered facts through its inquiry that would have caused a reasonable employer to discover that Reyes was incompetent or reckless, not that he was not formally trained or certified.
Even if Reyes was not formally trained аnd certified, and even if 4Front knew that
Although no one disputes that Reyes negligently drove the forklift off the sidewalk‘s edge and caused Rosаles to fall, there is no evidence that he was incompetent or acting recklessly when he did so. It is not enough to show that 4Front knew or should have known that Reyes would have a momentary lapse in judgment or otherwise act negligently. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005) (characterizing “lapses in professional judgment” as negligence). Evidence of negligence does not establish recklessness. City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998) (defining recklessness as “an act that the opеrator knew or should have known posed a high degree of risk of serious injury“); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993) (“The usual meaning assigned to ‘willful,’ ‘wanton,’ or ‘reckless,’ according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences.“) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 34, at 213 (5th ed. 1984)). The record does not support a finding that Reyes was incompetent or reckless. To the contrary, the evidence establishes that he had safely operated the forklift at 4Front‘s facility before, including for three to four hours two days before at the same location on the sidewalk in front of the sign. Although evidence supports a finding that Reyes was negligent while driving the forklift, there is simply no evidence that he was incompetent or reckless, or that 4Front knew or should have known that he was.
III.
Premises Liability
The jury in this case separately found 4Front liable under a premises-liability theory. Specifically, the jury found that 4Front negligently caused the accident because a “condition [of the premises] posed an unreasonable risk of harm,” that 4Front had “actual knowledge of the dangеr,” and that 4Front failed to adequately warn Rosales of the condition or make the condition reasonably safe. 4Front primarily challenges this finding by arguing that Chapter 95 applies and that there is no evidence that 4Front had actual knowledge of any dangerous condition. We conclude that, even if Chapter 95 does not apply, Rosales‘s premises-liability claim fails because there is no evidencе of any “condition of the premises” of which 4Front was
By asking about a “condition of the premises,” this question presented a premises-liability theory that focuses on the “state of being” of the property itself. Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015) (defining a “condition” as “either an intentional or an inadvertent state of being“). Although tangible property like a forklift can cause a dangerous “condition of the premises,” when (as here) the danger аrises from the contemporaneous use of the tangible property, the claim is for negligent “use” of property, not for premises liability. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388 (Tex. 2016) (distinguishing “whether the injury occurred by or as a contemporaneous result of the activity itself—a negligent activity—or rather by a condition created by the activity—a premises defect“). This question asks about the “condition of the premises,” not about the operation or entrustment of the forklift.
No evidence in this record supports liability based on a “condition of the premises.” The only premises conditions on which Rosales‘s claims could possibly be based are the conditions of the sign and of the sidewalk off which Reyes drove the forklift. There is no evidence, however, that any condition of the sign was dangerous or proximately caused this accident. And even if the sidewalk‘s edge was dangerous and did proximately cause the accident, “we have declined to impose a duty for premises conditions that are open and obvious, regardless of whether such conditions are artificial or naturally occurring.” Suarez v. City of Texas City, 465 S.W.3d 623, 633 (Tex. 2015). Any danger the sidewalk presented was open and obvious, and thus cannot support Rosales‘s premises liability claim; Because no evidence establishes that any condition of 4Front‘s premises was dangerous, not open and obvious, and proximately caused the accident, we conclude that no evidence supports a finding of premises liability.
IV.
Conclusion
We find no evidence to support either of the theories on which the jury found 4Front liable, and we need not address 4Front‘s alternative arguments challenging the trial court‘s judgment. We conclude that the judgment imposing liability against 4Front must be reversed. The judgment also imposes liability against Reyes, however, based on the jury‘s finding that Reyes and Rosales were negligent and bore fifteen and ten percent of the responsibility, respectively. Judicial efficiency might compel us to simply reapportion the jury‘s responsibility findings between Reyes and Rosales and place sixty percent (15/25s) on Reyes. See, e.g., Sanchez v. Brownsville Sports Ctr., Inc., 51 S.W.3d 643 (Tex. App.—Corpus Christi 2001, pet. dism‘d by agr.) (reapportioning responsibility percentages on appeal); Davis v. Commercial Union Ins. Co., 892 F.2d 378, 384-85 (5th Cir. 1990) (same, applying Louisiana law). But the possibility that the jury would have assigned different percentages to Reyes and Rosales had it found that 4Front bears no responsibility might compel a different result. See JHC Ventures L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 773-74 (Tex. App.—San Antonio 2002, no pet.) (declining to reapportion responsibility percentages and remanding to trial court instead). Because the parties have not addressed this issue in their briefing to this Court, we remand the case to the trial court so that it may determine the proper disposition of Rosales‘s claims against Reyes.