*1 SCAFFOLDING, UNITED
INC., Petitioner, LEVINE, Respondent
James
No. 15-0921
Supreme Court of Texas. 2,
Argued March June DELIVERED:
OPINION
Rehearing January Denied January
Corrected
.ruling on the submission disposi- issue is tive in the favor. We reverse contractor’s of appeals’ judgment and render a take-nothing judgment. Background
I. History and Procedural 26, 2005, Levine, On December James pipefitter Energy Corporation Valero employee an Port Valero’s Arthur refinery, was scheduled to work an over- Graham, Roger Hughes, W. Adams & time shift in refinery’s alkylation unit. L.L.P., Harlingen, for Amicus Curiae Tex- shift, an Because was overtime as Association of Defense Counsel. crew, did not work with his usual but each Gunn, Huber, Erin David M. H. Beck member overtime crew was a Valero Houston,. LLP, Redden Kathleen Marie employee. The overtime crew was tasked Beaumont, Kennedy, for Petitioner. with routine required maintenance that installation of into exchang- two blanks Portner, Christopher Michael J. Trenton er, job a dangerous placed Levine and Bond, PLLC, Beaumont, Portner& Bond other crew than members more fifteen feet for Respondent. ground scaffold, above the they *5 where protective clothing donned opinion sup- Justice Green the and were delivered Court, plied Hecht, through special “fresh air” equip- in which Chief Justice the Johnson, Willett, constantly ment that was by Justice Justice monitored a Justice- Guzman, alleges crew’ member. joined. that he and Justice Brown slipped on piece plywood a that had not case, slip-and-fall present- In this we are down, been causing nailed him to fall toup challenges ed two to a trial court with' scaffold, his through a in arms hole the a judgment against scaffolding rendered ’ alleges "Levine that he a suffered neck First, challenges contractor. the contractor injury ás a result of the fall. jury plaintiffs the submission the claim general-negligence theory under a of re- The scaffold which Levine allegedly covery, arguing plaintiff brought that the a fell by Scaffolding, was constructed United premises liability, (USI), for claim which neces- Inc. contractor Valero hired sarily plaintiff fails because the did -not refinery. build scaffolds at Arthur its Port request findings According and obtain on the ele- USI’s and Valero’s scaf- .both ments that claim. policies, We hold that the in compliance fold and with Occu- plaintiffs against the pational contractor Safety and Administration Health liability, (OSEA) sounds in premises general- regulations, and rеquired USI negligence submission cannot the inspect nearly the three thousand scaffolds plaintiffs recovery in premises liability at refinery before each work shift and Second, challenges case. the contractor before each It is undisputed scaffold’s use. trial, granting trial court’s order a new USI assembled the at issue trial, arguing that the new order can be approximately one week before the main- commenced, by appeal reviewed judg- direct after final tenance work and it undis- subsequent representatives ment was in the not puted rendered trial. were of, presents present While the contractor an interest- the date and at three least issue, ing days preceding, we do reach it our fall. USI, fully comply our instruc- claiming with against suit court did
Levine filed proceeding. the scaf- tion from the first mandamus improperly constructed that USI Inc., remedy or warn of the Scaffolding, failed to re United fold and scaffold, caus- conditionally granted condition on at. 686-87. We á The was tried ing injury. his case before the trial court to “resolve writ and directed first in jury for the time December trial ambiguity” by amending all the new general-negli- submitted The court “only specific order to and include USI, jury, to the offered gence question that, of this in the context valid reasons finding jury returned verdict case, Id. at 690. granted ... a new trial.” jury apportioned re- negligent. order, The trial amended .and among parties, assigning sponsibility petition'for writ of USI did not file third jury and 49% to Levine. The 51% USI mandamus. $178,000 damages for awarded Levine for a second time The case was tried but it declined to medical expenses, future February as it did the first 2014. Just for ex- any damages past award medical trial, general- trial court submitted a pain suffering, penses, past future jury, negligence question earning capacity. anguish, or mental loss ques- neither offered a trial, a motion for new as- Levine filed objected general-negligence nor to the tion serting jury’s against verdict was question. At the of the second conclusion great weight preponderance trial, much better. In Levine faired addi- agreed grant- trial court evidence. The allocating responsibility 100% of the tion justice a new trial “in the interest ed USI, nearly jury awarded Levine $2 Scaffolding, In re and fairness.” United past damages. milliоn in and future (Tex. 2010) Inc., (per motion filed a motion trial and a new curiam) (orig. proceeding). Asserting that judgment notwithstanding the verdict. trial court abused its discretion judgment In its motion for notwithstand- ordering trial, petition the new USI filed verdict, ing argument, USI raised *6 in for writ of the Ninth mandamus Court time, for that the trial court.im- the first of Appeals, which denied relief. In re Unit- properly general-negligence submitted Inc., 274, 275 Scaffolding, ed 287 S.W.3d question jury to the when Levine’s claim (Tex. 2009, orig. proceeding), App.—Beaumont liability. sounded Levine cited in at granted, nd. 301 663. S.W.3d ma Williams, Jr., in Clayton our W. decision for of man petition then filed a writ USI (Tex. Olivo, 1997), Inc. v. 952 523 S.W.2d Court, conditionally in this damus and we asserting improper of the submission writ, granted directing the trial court the theory recovery required of the trial court disregarding “specify the reasons take-nothing judgment. The to render a trial.” jury ordering a verdict and new court both motions and en trial denied Scaffolding, re United 301 S.W.3d judgment tered in Levine’s favor. subsequently The trial court amended its (1) appeal: raised two issues USI order, again sought mandamus but USI improperly whether Levine’s was relief, appeals again the court of general-negligence a. the- under Inc., submitted Scaffolding, In re 315 denied. United (2) ory recovery; of new 246, (Tex. whether the 251 App.—Beaumont S.W.3d following first trial was 2010, trial order the orig. proceeding), granted, mand. (Tex. 2012). 685, appeals The improperly granted. then court of 690 377 S.W.3d judgment. the trial court’s 520 petition for writ of manda affirmed filed second (Tex. 631, 632, Court, alleging in this that the trial 2015 mus WL 5157837 S.W.3d 469 2015, Christi-Edinburg pet. App.—Corpus A. Standard of Review issue, granted). As to the first the court of A trial court jury must submit appeals inqui that the concluded relevant instructions, questions, definitions ry determining proper the character “are raised pleadings written hinged ization of on wheth Levine’s claim 278; evidence.” Tex.R. Civ. P. see also premises, er controlled the which the' Hyundai Rodriguez, Motor Co. v. 995 635-36, court held that USI did not. Id. at 661, (Tex. 1999). S.W.2d 663 In reviewing Declining 2015 WL 5157837. reach the alleged submission, jury error in & issue, appeals of held that second “the pleadings parties of consider although several of our recent decisions , case, of pre nature expanding could be characterized trial, charge "and the in sented its entire scope appellate review trial or new ty.” Healthcare, Columbia Rio Grande mandamus, holdings ders via do not those (Tex. Hawley, 851, L.P. v. 284 S.W.3d 862 permit appeal the direct of a new trial 2009) (citing Sterling Tr. Co. v. Adderley, following completion order of the new 835, (Tex. 2005); 168 S.W.3d Island 636, 2015 trial. Id. at WL 5157837. Corp. Dev. Republic Recreational v. Ass’n, (Tex. Tex. Sav. 1986)). alleged charge II. error “will Character and Submission if, deemed reversible when viewed Levine’s Claim light totality of these circum issue, In its first that it is contends stances, it amounted to such denial take-nothing judgment entitled be- rights complaining. party as was premises liability claim cause Levine’s reasonably probably calculated and did jury improperly submitted to the under a improper cause the rendition of an judg theory recovery. general-negligence Le- Recreational, ment.” Island argues that properly vine his claim was 555; Young, see also Reinhart v. and, submitted even his claim sounded (Tex. 1995). premises liability, argu- waived its objecting jury ment either alleg Whether the condition that charge by inviting error edly plaintiffs injury prem caused the is a general-negligence question requested legal ises is a question, defect which we below, first As we both explain trial. Sampson v. review de novo. See Univ. of petition Levine’s trial court and the evi- Austin, (Tex. Tex. at presented dence conclu- compel 2016); Reliance Nat’l Indem. Co. Ad *7 that premised sion Levine’s claim is on Inc., 46, Temps., 50 vanced 227 S.W.3d right having USI’s the the scaf- (Tex. 2007); Dep’t Transp. Tex. v. Ra of allegedly= fold at the time suffered (Tex. 2002) Levine mirez, 864, (per 74 866 S.W.3d injury. hold that Levine’s Burris, We sounds curiam); 298, State v. 877 S.W.2d and, result, premises liability, 1994) in as a the curiam); (Tex. (per Dep’t 299 State of general-negligence findings cannot 235, support Highways Payne, v. 838 S.W.2d 238 recovery. Additionally, (Tex. 1992). Levine’s we hold As have held for we two dec ades, that neither premises waived its submission improperly defect case argument nor that jury only gener invited error and to the submitted under properly preserved raising its al-negligence question, error the ele without argument in not- judgment premises liability its motion of as ments instructions definitions, of withstanding the verdict. causes the rendition an 470 Olivo, injured, 952 at the before judgment.1 S.W.2d Levine was
improper leaving general-negligence Levine with 529. of appeals claim. considered The court Levine’s Claim B. Character of control, premises to be the the over determining inquiry in control of the charac general contractor “A central 635- of ter of 520 at Levine’s claim. S.W.3d may types two premises be liable the 36, Concluding 2015 that Va- failing keep premises the 5157837. WL negligence day lero the of arising an on the the scaffold activity from controlled that safe: accident, appeals from a the of held arising premises premises, Living, properly (citing Redinger v. that Levine’s submit at claim was defect.” Id. 527 1985)). 415, (Tex. theory of 417 ted under Inc., general-negligence 2015 Id. 5157837. argues recovery. neither at appeal that WL error, alleged charge we applies reviewing in this: the types negligence those of must nature and' circum- relinquished control consider because USI the case injury—premises suggests apply then determin 1. The dissent we defect—and im owed, ing concluding gen proper we do the duties standard review plaintiff legal question of the eral owed the character contractor defendant review premises sufficiency- if it retained a to control claim under some sort duties condi created of-fhe-evidence standard. 537 work that 634 , Nat'l, Olivo, J., Recogniz dissenting). tion. 528-29. see S.W.2d at (Boyd, Reliance But courts, negligent ing "premises defect ("Appellate cases review novo, independent activity legal cases are based theo de whereas determinations factual explicit recovery” and ries of that "[w]e receive more deferential re determinations' ly required court submit sufficiency of the evi that the trial ’the view based on case,” dence.’.'). premises controlling defect Disregarding elements in a law and Corbin cases, Olivos we did not inapplicable the dissent ar held that relying "[b]ecause on- jury finding gues specifically obtain a that included essential that because did claim, general-neg premises they challenge validity elements of of Levine's their defect recover,” (citing theory, R. Civ. ligence legal must affirm the trial cannot Id. we Tex 279). Although today conclusively P. before us judgment unless USI es case court's prem- sup question involves of'control over the “no evidence” that there tablished defect-producing general-negligence ises control over port submission. Id. at rather than work, alleged inconsistency guides ignores review The this Olivo our dissent 635-36. charge reject holding error. dissent’s instead misstatеs our Olivo in We veiled disjointed by sug- application our to overrule Olivo effort to avoid its clear effort case, liability . gesting premises cláirri submit- in this Id. at review 634. dissent question general-negligence ted review would be as without claims that standard .our liability premises premises in- as to appropriate liability if a instructions traditional long given. allegation proper elements is so 2015 WL struction had been Id. Olivo, ignores in the But in which the evidence can found record 5157837. prem- jury given premises general-negligence As liability instruc- claim. law,” definitions, negligence liability is and We ises a "branch tions considered - Jenkins, Corp. sup- whether and evidence Occidental Chemical pleadings (Tex. 2016), Olivo, ported recovery. See the dissent’s plaintiff’s Although effectively jury rule eliminate in Olivo new would S.W.2d at altogether.' liability general-negligence Finally, found the submissions under a reject ory, implication analysis our did not consider' whether dissent’s *8 defense, "any allegations support” gen liability simply re- is an affirmative negligence, quiring dissent would us to bear the of as the have the defendant burden eral Olivo, theory ensuring -proper 537 of the of here. S.W.3d at do submission 486: 952 528-29, Instead, recovery liability judg- support premises S.W.2d at considered the a infra, plaintiff's by plaintiffs in See claim first deter ment favor. Part character alleged mining plaintiff’s III. the source of the
471 injury, allega- care to stances reduce or an unreason eliminate USI, against pre- tions -and the evidence able risk of harm a premises created at trial. sented condition or occupier which the owner [of about or in land] knows -exercise Recovery
1. Theories of
ordinary care
know about.” Timber
should
person injured on another’s
Partners,
[A]
Apartments,
walk
Cain,
v.
Inc.
property may
negligence
either a
have
(Tex.
749,
1998) (alteration
S.W.2d
753
972
or
'premises-liability
a
claim
(citations
in original)
quota
and internal
against
property
owner.
When
omitted);
tion marks
see also TXI Opera
injury
contemporane
is the result of a
tions,
763,
L.P.
Perry,
v.
278 S.W.3d
765
ous, negligent activity
property,
on the
(Tex. 2009) (“[A] premises, owner or occu
ordinary negligence principles apply. pier
adequately
must either
warn
injury
When
the result of the
or make the
condition
condition
than
property’s condition rather
an ac
safe.”).
reasonably
Underpinning the dis-
tivity, premises-liability principles apply.
prin-
tinctions between these claims is the
Jenkins,
Corp.
Occidental Chem.
v.
478 ciple
“negligent activity
encompasses
640,
(Tex. 2016) (citing
644
S.W.3d
Keetch
theory
affirmative,
a malfeasance
on
based
Co.,
262,
(Tex.
Kroger
v.
845
264
S.W.2d
contemporaneous
conduct
the owner
1992);
Warner,
H.E. Butt Grocery Co. v.
injury,
premises
caused the
while
lia-
(Tex. 1992)).
258, 259
Negli
845 S.W.2d
bility encompasses a
theory
nonfeasance
gence
premises liability
claims thus
based
owner’s
the.
failure
.take meas-
separate
are
and distinct theories of recov
property
ures to-make the
Lago,
safe.” Del
different,
ery, requiring plaintiffs to prove
(footnotes omitted).
472 1983). upon 292, (Tex. every “artificial condition 296 Conse almost
648 S.W.2d claim is premises liability liabil a based submitting premises a quently, when jury, simple by аctivity,” we have ity may of action a “a be created cause question, unaccompanied by completely the dis- negligence declined eliminate premises as or defini elements instructions tinction between conditions and Corbin tions, recovery prem Sampson, a in a 500 negligent cannot activities. See Olivo, Shumake, 388; 952 at 529 ises defect case.” S.W.2d 199 at State S.W.3d 266-67; Keetch, (Tex. Keetch, 2006); 845 at (citing S.W.2d War 845 284 S.W.3d 259-60). ner, at 845 S.W.2d to do so again at 264. decline We S.W.2d here. Injury 2. The of Levine’s Source case, alleged Levine that he was In this Understanding general through hole in the injured he fell a distinguish
principles negligent-activi piece of scaffold after a USI-constructed claims, we next ty premises from slipped plywood was not nailed down injury alleged turn whether Levine’s alleged has never from under him. Levine contemporaneous negli from a resulted contemporaneous, ongoing sort of activity proper or a on the gent condition Rather, activity injury. his caused his at ty. Sampson, See 500 S.W.3d 388 alleged petition, Levine (“Wfiien negligent a distinguishing between by “im- dangerous a condition USI created defect, Court activity premises a this assembling, erecting, se- properly and/or oc injury on has' focused whether curing scaffolding.” further al- Levine contemporaneous result by curred or as a among things, other that USI failed leged, activity— negligent activity itself—a dangerous “adequately determine condi- by a condition created rather created,” dangerous “correct the con- tions (citing activity—a premises defect.” scaffolding,” with the 264)). which existed Keetch, dition at “A condition 845 S.W.2d scaffolding in a proper “secure the risk harm for poses an unreasonable condition,” “that warn work safe premises-defect purposes when there existed which re- condition probability of a harmful event ‘sufficient extra care to be taken” occurring reasonably prudent per quired that a essence, working on In it or some similar while the scaffold. son would have foreseen ” injury from likely happen.’ Cty. Levine claims that his resulted event as Camer (Tex. Brown, 556 created and then physical on v. condition USI S.W.3d 2002) repeatedly on Bayreuth premises. v. Cal left We have (quoting Seideneck (Tex. Assocs., slip-and-fall claims as er characterized such S.W.2d 1970)). injuries recognized “slip/trip- premises have defect cases because We alleged physi- from consistently cases treat were to have resulted and-fall have been Olivo, 952 property. E.g., cal ed as causes action.” conditions defect (holding slip-and- that a Sampson, 500 at 391. such 526-27 S.W.3d S.W.2d cases, resulting alleged injury plaintiff alleges injury plaintiff as a re fall who pipe that had physical protectors sult or defect left from drill thread condition premises, contemporaneous ground, “not as a left as a been Olivo, neg- contemporaneous of someone’s negligence.” result of someone’s result Keetch, ligence, brought defect (citing 845 S.W.2d 264; Warner, 259); case); Keetch, (holding at 264 see slip-and-fall al- Sampson, Although although plaintiff at 390-91. injury grocery store acknowledged point, leged that at some result
473
plant spraying,
ongoing activity
question
no
of
court,
was
law for the
and the
occurring
plaintiff
injured
presence
of an unreasonably dangerous
weighs
condition
in favor of
properly
recognizing
and the claim was
as
a
submitted
duty.
Warner,
Foreman,
Allen Keller
premises
Co. v.
liability);
845
343
S.W.2d at
420,
(Tex. 2011)
S.W.3d
425
(citing Del
(holding
slip-and-fall
259
that a
plaintiff
Lago,
767);
307
S.W.3d
Fort Bend
only
premises liability
a
alleged
cf.
Cty. Drainage
Sbrusch,
Dist. v.
818
undisputed
where “it [was]
that she was
392,
(Tex. 1991) (“[I]n
395
S.W.2d
some
injured by
premises—a
a
of
condition
instances
may require
court]
the resolu
[a
water,
blood,
of
chicken
puddle
and other
,
disputed
tion of
facts or inferences which
fluids that
had accumulated
the floor—
(cit
inappropriate
are
for legal resolution.”
negligently
rather than a
activi-
conducted
ing
Co.,
Mitchell v. Mo.-Kan.-Tex. R.R.
ty”)-
see no reason to
from
depart
We
659,
(Tex.),
denied,
786 S.W.2d
662
cert
498
here,
conclusion
where the
fair read-
896,
247,
111
U.S.
S.Ct.
gations position inconsistent with the he Valero work site at the time appeal—that now takes on USI lacked accident and that Valero did not notify control of the the time his scaffold, its intent to use the injury. petition, alleged In his triggered would USI’s inspection of injured he working “while scaf- the scaffold to ensure safety before the folding which had been erected/construct- began—constitutes shift admission ed/supervised and that [USI] /built ” not control did the scaffold. direction, supervi- USI “had argument But USI’s does not create a erection/building sion over the of-the scaf- dispute *12 Levine’s over assertion of USI’s folding.” alleging addition to that USI control; fact, argues in quite USI clearly remedy, created and then failed to or warn it responsible controlled and was about, dangerous condition on the scaf- the scaffold.2 Levine confuses pres- USI’s - fold, Levine’s pleadings allege further site, ence at thé occupancy, work with responsibility for USI’s the scaffold control over' the The scaffold. relevant in- claiming provide that USI to him failed in quiry this instance is not whether USI’s training others “sufficient and instruc- employees present site, were at the work tion proper ... the erection and use of dispute, not 'in which is but whether USI scaffolding,” “to adequately the failed in- right retained sufficient of control over spect scaffolding,” the failed “to maintain the work site’s scaffold such that it had the scaffolding proper the in a safe work responsibility to remedy the condition condition,” provide “to ... a. safe failed alléges injury. Cty. Levine caused his See environment,” working “to failed enforce Cameron, 80 at 556. only- The codes, rules, proper safety standards reading pleadings fair Levine’s requires instruct,” “to practices,” failed “to failed determination in the that Levine fact did properly supervise,” and “to failed ensure allege that ÜSI assumed and retained safety of attempting workers -to right scaffolding it con- scaffolding.” use the Under of these each structed, giving duty rise make and allegations, not nonfeasance USI could keep for business invi- safe liable unless it had the to control the tees, аllegedly and that its USI breached scaffold. duty warn condition how, explain Levine does not con- absent safe, or make it proximately scaffold trol, train, duty USI could have the causing injury. instruct, maintain, inspect, supervise, safety charged presented ensure the workers with trial is consis- using reading plead- USI-construeted scaffold. In- tent with our of Levine’s stead, argues Levine now in ings. alkylation The scaffold erected alleges inconsistency testimony 2. We note Levine does not scaffold. That indicate that argument appeal—that USI's Rather, between USI simply repre- USI lacked control. alleged- retained control over the scaffold that lay opinion responsi- sents one witness’s ly injury—and the, resulted USI’s ar- bility belonged scaffold to whichever gument responsible at trial—that USI not party Ultimately, inspection. conducted the injury allegedly for Levine's resulted however, argument USI’s trial that Valero did example, from the As an scaffold’s condition. notify not of its intent to use the scaffold USI points testimony . USI Site from accident, relieving prior to Levine's thus Coordinator, Broussard, Safety Kenneth who breach, liability, speaks to the element scaffold, inspected that if Valero testified duty. not responsibility then Valero assumed for tagging system, poli- nearly a before maintains its own built week unit was cy procedure It to conform to its clients’ so intended use. was assembled is Valero’s job assigned to the overtime solely for the long policy as that does violate OSHA crew, many one of scaffolds just and was regulations. con- ongoing pursuant constructed policy, scaffolds located Under Valero’s relationship and Va- tractual between USI for Contrac- its General Guidelines within
lero, daily use of which resulted that, among Safety, tor Valero mandates 3,000 scaf- approximately USI-constructed en- things, other “CONTRACTORS shall (at a refinery Port Arthur rate folds users all been sure that scaffolds have sixty eighty USI-con- of an estimated proper in the use of the haz- trained Although daily). structed erected scaffolds prior ards scaffolds to al- associated with the contract between and Valero employee access to scaffold.” lowing record, pre- included documents policy Additionally, mandates dem- testimony sented and elicited at trial shall each scaf- “CONTRACTORS ensure onstrate that maintained Valero inspected prior to shift fold is each work intended to separate policies, each allowing EMPLOY- before AFFECTED regu- conform with federal law and OSHA *13 to “CONTRAC- begin Finally, EES work.” policies USI man- lations. The and Valero only to employee TORS allow shall access tagging strict to a date adherence scaffold constructed, in- properly scaffolds that are “compe- procedure requires an OSHA Thus, spected, tagged.” places and Valero person” inspect tent to each scaffold be- “CONTRACTOR,” USI, upon Valero’s sole each use.3 fore each work shift before employees to to Valero, authority authorize According Valero purpose to the the use Trial tagging procedure to all scaffolds USI has constructed.4 is “ensure that testimony from being per- employees all work Valero and USI scaffolds erected and that, being on formed from scaffolds done establishes the date Although alleged injury, place policies safe uniform manner.” USI these were "competent person” as on Levine's own 3. OSHA defines the of the accident was date capable identifying existing testimony "one who is testimony—the in which Le- same surroundings predictable in the hazards updated an in- vine confirmed that without unsanitary, working or conditions which are spection, he not have should worked hazardous, employees, to other USI Even if someone than a scaffold. prompt correc- who has authorization to take scaffold, "competent person” inspected the tive to eliminate them.” 29 C.F.R. measures inspec- that this record evidence indicates 1926.450(b) (2016). § policy. We tion would have violated Valero’s testimony interpret to cannot trial mean correctly The dissent references trial testi- says—only anything OSHA more than what mony persons” "competent that Valero "competent person” inspect- capable '-'is of” scaffolds, inspect who but the site could 1926.450(b). ing § See 29 scaffolds. C.F.R. sug- leap dissent makes an inferential when The record that Valero evidence establishes testimony proves gests USI lacked that this inspect scaffolding, hired USI to build and 496. The dissent sim- control. 537 S.W.3d at policies and the scaffold combined with the policy grants USI ply ignores the Valero just testimony support that USI did that. authority give employees sole Valero to that, day acci- It could true on the USI access to scaffolds that has constructed. dent, mystery, OSHA-qualified some Valero may employed The fact that Valero inspected person” secretly "competent qualified inspect “competent persons” to scaf- tag updated scaffold and folding anyone than does not mean that other scaffold, his but only claims authorized use of inspect scaffolding. USI ever The did negate subsequent even would not anyone inspected the evidence that scaffold injury upon allegedly which Levine suffered scaffold. by both by sug- and observed Valero and USI. dissent confuses the issue Lawrence, Tony su- Valero’s maintenance gesting that Valero would call and “re- supervised who overtime crew pervisor quest” inspections from USI some- accident, day on the confirmed times, them. needed 537 S.W.3d at that he or someone in the mainte- else 635. The record simply does not department have contacted nance would reality, this conclusion. In Valero would communicate the need USI notify whenever Valero wanted to use construct a scaffold the overtime crew scaffold, prompt which would perform alkylation its work in the unit. inspect required by guide- as both OSHA testimony Lawrence’s confirmed that lines poli- USI and Valero scaffold scaffold was constructed USI and re- plan cies. would each Valero communicate nearly mained unused for a week before employees use scaffold because Valero began the overtime crew work. Law- its could not use USI-constructed scaffold although also testified rence Valero permission, given without USI’s which was employed carpenters qualified as were updated tag an following inspection. via competent persons regula- OSHA under Thus, delegated effectively Valero to USI tions, they were used to contacted authority employees’ ensure safe- upon inspect scaffold which Levine on the scaffolds USI constructs. ty Although Law- allegedly injury. suffered rence was unsure to whether Valero trial, Throughout sevеral con- witnesses required inspections and OSHA testimony. firmed Lawrence’s Maximo before each use at the of Levine’s time Cardenas, pipefitter another Valero who alleged injury, he a rule testified such with Levine the scaffold at the worked required inspect would have accident, pur- time that the testified *14 scaffold before its the overtime use pose inspecting scaffolding before each Additionally, that crew. he testified USI “locating things to shift that need be not representa- was contacted because its Green, corrected.” Charles a Valero boiler- tives not site. present were the work maker, that each time testified modifica- typical testified that Valero’s Lawrence to scaffolding, needed be made to the tions practice was to form of use some electronic would make them so that he and USI daily to on a notify communication USI comfortably. other workers could work Ad- as to used basis which scaffolds would be ditionally, Green that Valero testified new to be and where scaffolds needed supervisor thing would contact “first USI Indeed, constructed. even Valero would morning” inspect scaffolding in the to day contact USI before scheduled to would contact USI whenever revisions require particular that use of a work would scaffolding Kenneth needed be done. inspect so that USI could the scaf- scaffold Broussard, Coordinator, Safety USI’s Site update tag. fold and scaffold’s Law- Travis, superintendent, and Bob USI do in process rence testified that was this testimony. this tes- dispute not Broussard place to allow the scaffold’s USI ensure tified, among things, other that USI in- confirm no safety and that one else had daily at the spects thousands scaffolds post-construction. scaffold Fur- altered the facility. Travis also testified that Valero ther, and in with line Valero’s scaffolds inspects the scaffolds it constructs USI policy, Lawrence that testified Valero “[ejvery day prior employees] to [Valero contact have them would USI dismantle going to work on After Valero [them].” the scaffold once the was necessary work complete. working start on the scaffold- employees - particular scaf- right to control reinspéct, can back to that
tog, they
call USI
his.
By
testimony,
fold;
all,
own
general
when
contractor can
necessary.
after
that
confirmed
he was aware
to do
do the
it
-hired
without
work
was
use,
regarding
policy
scaffold
Valero’s
instructions
ac-
property
and
owner’s
to use
scaffold
not allowed
he was
employees were
fact that
cess.5 The
USI
inspected,
it was
he believed
unless
present
assem-
after
allegedly
on which he was
the. scaffold
noti-
bling the
and before Valero
scaffold
inspected,
injured-had
been
scheduled,
use—
of its
intended
fied USI
supervisor he could have
he was a Valero
trigger
inspection
which would
USI’s
if he
“revisions or
needed
called
safety
before its
ensure
scaffold’s
something
scaffolding.”
on [the]
that USI
relin-
use—does
mean
allegations,
with Levine’s
Consistent
right
to control
the scaffold
quished the
presented at
reflects
the evidence
interim, Rather,
simply
means
scaffolding
right
to control
USI’s
that USI had no
exercise
reason
au-
employee
constructed.
was
No Valero
during
to control
the scaffold
use,
construct,
dismantle
thorized
placed a re-
time.6
fact
that Valero
securing
per-
first
scaffold without
employees’
its own
use of
striction
that, practically speak-
The fact
mission.
scaffolding—a-
USI-constructed
mandate
ing,
none of these
first
USI did
without
the use of
requiring
authorize
notifying
receiving a
order
work
inspection—(cid:127)
following
proper
scaffold
particular
of a
use
Valero’s scheduled
control over the
does not
that USl
lacked
shows
retained
mean
(Tex. 1962),
rejected the
5. The
claims that USI did not have
in which
dissent
scaffolding
accepted-work
con
because it had to
and held that a
access
doctrine
n
“work
from Vale
con
permits"
tractor whose work created
secure
orders
ignores
ultimately
property
Yet the
ro. 537
at 498.
dissent
dition on the
caused
testimony
testimony
injury
liability solely
other
be
is not immune from
too,
employees
they,
Valero
to secure
completed
accepted
his work
cause
refinery job
permits to' work on the
plaintiff's injury.
Valero
the owner before the
permits
end of
suggest
site
had to
turn
we have
at 491-92 n.9. While
shift,
suggest
,
To
that USI relin
work
their
ed that a contractor
such circumstances
quished
Vale-
general-negligenсe
could
liable based
*15
places
property
on
or
restrictions
access
principles,
ro
not had occasion to con
have
guidelines for
work
safety
all who
maintains
brought
negligence
sider
claim
under Stra-
only
premises—all of which we
the
on
can
kos or
be
how such a
should
submitted
assume,
us,
Strakos,
on
record before
were
See,
based
the
jury.
e.g.,
360
to a
S.W.2d at
place
when Valero
USI—is
contracted with
790-92,
(holding
802
that
contractor was
the
suggest
never
that
could
have had
to
liable for
and make safe de
failure to warn
place.
premises
control of
in the
the
first
accepted
spite
having
the
contrac
owner’s
Indeed,
requires
if
access
work);
Keller,
control
unrestricted
completed'
tor's
Allen
343
ever
premises,
to the.
contractors could
few
(holding
at
the contractor
S.W.3d
that
426
right
premises.
establish the
to control the
We
duty
public
rectify
owed no
to
the
the
warn
impose premises
to
liabil
condition);
do not read the law
unreasonably dangerous site
Occi
g
ity
only
on
owner
dental,
duties
contractors
(holdin
479
through
scaffold from construction
of appeals improperly
dis-
The court
relied
mantling. Essentially,
placed
once Valero
on
assumption
that USI’s control must
position
in the sole
to authorize the
exclusive, believing
be
that
party
one
of
constructed,
scaffolds it
USI at-
use
can
control at a
520
have
time. See
S.W.3d
right to
tained the sufficient
control those
(noting
at
right, and USI does “misstating” pleadings Levine’s opinion as over, that Le- the evidence establishes But at 636. the evidence. 537 S.W.3d hav- based allegations vine’s are plead of Levine’s the dissent’s recitation scaffold to control over the ing sufficient testimony supports our anal ings duty of care as owe Levine our ysis. The also characterizes dissent plead- on the scaffold.7 conditions “misstating” the standard opinion as sup- not ings and the record evidence do at But dissent mischar- review. Id. contrary appeal assertion port his in a analysis acterizes our Olivo veiled had no control. holding.8 Finally, the to overrule its effort our question dissent seems discussion attempted to Even controlling applica law and the duties something other his claim as characterize n.3, 491-92 ble in this case. Id. at 487-88 liability, pleading premises “[creative than a nar opinion our n.9. Yet addresses a claim.” change nature of does legal with which the dissent row rule (citations at 386 Sampson, 500 S.W.3d premises agree—a seems to defect claim omitted). properly deter claim is “[I]f against a contractor who retained defect, a premises one for mined of the to control the at the time circumvent the true nature plaintiff cannot alleged injury plaintiffs must be submitted by pleading general it as of the claim claim. jury premises liability as a (citing Dep’t Tex. negligence.” Id. at 389 Miranda, & v. 133 S.W.3d Parks Wildlife of Levine’s C. Submission Claim (Tex. 2004)). creative Such 230-33 plaintiffs “plead pleading would allow “cannot Just as Levine circumvent prem heightened by pleading standard around the true nature of [his] defects, proof general negligence,” he cannot requires addi as one ises jury creatively request questions knowledge.” actual tional elements such as Sampson, 500 would do the same. S.W.3d Likewise, Id. at 385. one cannot transform 389; Torrington, 46 see also submitting of a claim the true nature 839-40; Olivo, 952 S.W.2d 529. Consid theory of jury to the under a different ering pleаdings, the nature Olivo, 529; recovery. see See S.W.2d at trial, case, presented Stutzman, Torrington also Co. charge entirety, we conclude 2000) (acknowl (Tex. 839-40 theory recovery submitted to the Olivo, edging implicitly that in conclud jury the claim that was did reflect questions sub general-negligence ed that the evidence. pleadings raised mitted in cases were 278; R. P. Recreation See Tex. Island Civ. “immaterial” because “absent determi al, at 555. predicates giving nation that the factual satisfied, legal duty to a the de rise were to the Because this case was submitted care fendants’ failure use reasonable jury only general-negligence theo- under (citing Tri legal consequence” was of ry recovery, without the elements Commc’ns, Riley, Inc. v. plex premises liability defini- instructions (Tex. 1995))). tions, “cannot a recov- the verdict *17 8. See note supra 7. See Part II.B.3.b. supra
481
Olivo,
ery in a premises defect case.”
952
satisfy
fails to
that burden waives that
529;
see also Little Rock
S.W.2d
Furni
Tex. R.
(“Upon
claim.
Civ. P. 279
appeal all
Dunn,
197,
Mfg.
ture
v.
148 Tex.
222
Co.
independent grounds of recovery or of de-
985,
(1949)
990
(explaining
S.W.2d
not conclusively
fense
established under
party
to judgment,
before a
is entitled
it
the evidence and no element of which is
satisfy
obtaining
must
its
of
jury
burden
requested
waived.”).
submitted or
are
“If
findings
every
in its
favor
essential
theory
an entire
were omitted from the
claim). Having
element of its
to
elected not
charge
waived;
it would be
and [the defen
request
premises liability question
or dant] would indeed
no duty
to ob
instruction and not to obtain
findings
ject.”
Inc.,
Ramos
Frito-Lay,
v.
784
premises
elements,
including
(Tex.
1990)
S.W.2d
(citing Tex. R.
knowledge,
premises
Levine
his
lia
waived
279;
LaMark,
Civ. P.
Strauss v.
(“[A]ll
bility claim.
Tex. R. Civ.
See
P. 279
(Tex. 1963));
Olivo,
see also
independent grounds
recovery
of
... not
at 529-30 (instructing
that “a sim
conclusively
under
established
evi- ple negligence question, unaccompanied by
dence
of which is
element
submit
the Corbin elements as instructions or def
waived.”).
requested
ted or
are
No basis
initions, cannot support
recovery
in a
against
remains for Levine to recover
USI.
(citations omitted)).
defect case”
Olivo,
529;
See
see
BP
also
Res., LLC,
Am. Prod. Co. Red Deer
recognize,
We
points
as USI
n.6,
out,
403 &
that a
preserve
WL
defendant must-
error
(Tex. 2017) (rendering judgment
in favor by objecting when
independent
an
theory
plaintiff
of the defendant
“sub
recovery
of
defectively.
submittеd
See
theory upon
mitted
not
could
Tex. R. Civ. P. 279. This
includes when
request
recover” and
to
failed
and obtain
theory
element of .that
of recovery is omit
findings
support judgment
when,
case,
favor
ted. See
But
id.
as
this
theory
recovery);
on a
of
proper
Torring wrong theory of recovery was submitted
ton,
(holding
482
trial,
recovery
premis
on a
support
in
not
gave
made
rise
Levine’s
second
33.1;
App.
to this
Tex. R.
P.
appeal.
reliance
USI’s
es
claim. See
6
Olivo,
839-40;
4
misplaced.
Torrington,
in
actions
the first trial
We
S.W.3d
may
acknowledged
that
defendant
appeal
persuades
court
IV.
jury charge
alleges
it later
adopt
order
challenges
trial court’s
USI
the'
theory
recovery.
supports
improper
an
of
trial, contending
granting a new
(hold-
Lago,
Del
775-76
See
307 S.W.3d
trial court abused its discretion because
ground
ing
its
that the defendant waived
provided
granting
for
a new
the bases it
by objecting to submission of
for reversal
facially
were
insufficient
trial
negligent-activity theory at trial and then
jury
supported
sufficient
each
theory
alleging
proper
appeal that
Bent,
in
re
finding
first
See In
trial.
activity). But
recovery
negligent
of
was
2016)
170,
(Tex.
(orig. pro
173
487 S.W.3d
here,
once the trial court ordered
new ceeding)
In re
Med.
(citing
Columbia
Ctr.
trial,
in
invite error
could
USI
Colinas,
L.P.,
Subsidiary,
Las
290
See
v. Methodist
Wilkins
second trial.
2009)
204,
(Tex.
(orig. proceed
S.W.3d
559,
Sys., 160
Care
Health
Inc.,
ing);
Scaffolding,
In re
United
(Tex. 2005) (“[W]hen
grants
trial
court
688-89;
Toyota
re
Motor
trial,
essentially
new
the court
for
motion
Sales, U.S.A., Inc.,
407 S.W.3d
over.”).
starts
wipes the
clean and
slate
(Tex. 2013)
Le
(orig. proceeding)). While
that USI
invite
The record reflects
did
argues
vine
that merits-based review
trial.-
error in
second
appropriate only
trial
new
order
pre
through a
USI as-
Finally,
proceeding,9
hold that
mandamus
USI
by raising
appellate
serts that
review the new trial
argument
submission
served its
trial “is absolutely
for
notwithstand
order after
second
judgment
it in motion
appeals
in
essential.”
court
held that
Olivo
ing the
USI cited
verdict.
appeal
granting
the direct
of an
take-nothing judgment.
order
new
request
its
for
permitted
trial is not
“once
has
gave'the trial court notice of USI’s
This
order
judgment!”
into
on an
a final
complaint
merged
that the verdict was based
recovery that
theory could
2015 WL
immaterial
assigned
arguments
as error
three'
view in the
court and
9. Levine also- makes
trial
n
Third, although
appeals).
object
order
in the
USI’s
USI waived its
court
First, although
petition
arguments
granting
for review contains
simi
a new trial.
Court,
appeals,
in
pursued
in
lar to those USI made
the court of
twice
mandamus relief
this
argues
specif
object
raised
USI did not
to the new
order at
never
its
explanation
complaints
complaints
in
ic
about the form and
issue or otherwise raise
R,
33.1(a)
(requir-
See Tex.
of the new trial order until
its brief on the
trial court.
P.
App.
55.2(f)
complaint
ing
in
See
R.
P.
preservation of a
in the trial
merits
this Court.
App.
Tex.
(stating
petitioner’s
through timely request, objection, or
that a
brief on the merits
grounds
ruling
points
in
stating specific
must be confined to issues or
stated
motion
for
Richardson,
Second,
review);
sought).
although
complained
petition for
Ramos (Tex. 2007)
curiam)
(per
appeals
the court of
trial court erred
trial,
(refusing
argument
granting
raised in
a new
raise the
failed to
address
peti
specific arguments
sup-
petitioners’
it now
on the merits because
makes
brief
port
position
petition
failed to advance it in their
of its
the trial court abused
tioners
n
discretion,
53.2(f)
review).
(stat-
do
See
P.
Because we
not decide
Tex. R.
App.
order,
challenge
ing
originating
new trial
we also do
that matters
in the
to the
trial court
arguments.
preservation
preserved,
appellate
should have been
re-
address
*19
presents
This issue
an interesting
points: that
the party
would afford
-
quagmire.
recognized
appel
relief.”).
We
that
greatest
ruling,
With .this
USI
may
late
“conduct a
courts
merits review
not
concedes
we
reach its chal-
need
of the
for a
bases
new trial order”
an
in
lenge to the
court’s
granting
order
a
.trial
original proceeding
grant
mandamus
new -trial.
support
relief
record does not
“[i]f
rationale for ordering
trial court’s
a new
Conclusion
V.
Sales,
Toyota
trial.” In re
Motor
407
Considering
pleadings,
the na-
explained
at
We
“it
749.
would
case,
of
ture
presented
the evidence
make
sense
conclude now that the
little
trial,
jury charge
and the
in its entirety,
validity
correctness or
of the orders’ artic
we hold that
is properly
Levine’s claim
ulated reasons cannot
also
evaluated.”
characterized as one
liability.
for
Id.
at 758. Yet “mandamus will issue
request
Levine’s failure to
secure find-
to correct
of
a clear abusé
or the
discretion
ings
support
claim,
his
duty imposed
of
violation
a
law
therefore, “cannot
recovery” in
remedy by appeal
adequate
not ex
does
Olivo,
this instance.
by filing for petition writ mandamus its improper-theory argument by served began. before the second But USI raising-it.in a for-judgment motion not opted declined to do so and instead App. withstanding the See R. verdict. move with Tex. forward .the: second trial. USI 33.1; P. Civ. P. Accordingly, Tex. R. to, choice, urges essence, in now us void its reverse the of appeals’ judgment court arguing that compul “mandamus is never take-nothing judgment render a in USI’s sory.” by asserting Levine counters favor. We decline the issue reach allowing our decisions merits-based man party may challengе whether a a new trial damus review new trial orders have appeal following order direct the com essentially “litigants such held that do trial, pletion of the new resolution adequate remedy have an on appeal.” the, submission issue affords all relief issue, however, do not reach this We requested. it has holding our the submission is- sue results in in judgment rendition of Boyd dissenting opinion, Justice filed favor, provides all the relief USI Justice which Lehrmann Justice requests, and- forecloses consideration of joined. Devine additional not provide issues that do greatest Homes, relief. See CMH Inc. v. Boyd, joined by Justice Justice
Daenen, (Tex. 2000) (de- Devine, dissenting. Justice Lehrmann and clining to question reach a venue injured working James while potentially would result after Levine remand employer’s refinery his deciding when he:fell legal-sufficiency question rendition); Elec., platform through Bradleys’ resulted Inc. a scaffold. Accord- Levine, ing Co., piece plywood Cigna Lloyds v. Ins. (Tex. 1999) curiam) into (per (“Generally, platform should have been nailed the. party presents him, when a multiple grounds but was not out from under slid caus- judgment appeal, ing through reversal -on him to fall the resulting hole. appellate should first those As result of this “slip-and-fall,” a. so-called address 472-73, liability, applies A USI controlled the scaf- strained his neck.
ante at nearly injured million. That’s thus him fold on Levine was jury awarded $2 money for neck But a lot of strain.1 condi- “responsibility Inc. Scaffolding, defendant—United (quoting it.” Occiden- tions on Ante (USI)—does merely complain about Jenkins, Corp. tal Chem. Instead, ar- damages.
the amount 2016)). (Tex. owed Whether *20 cannot recover at all gues that Levine premises liability duty “must be Levine a jury the the trial court asked because by examining whether determined ordinary-negligence question instead of right to the scaffold maintained a control Ironically, premises-liability question. injury.” allegedly Id. caused ordinary-negligence proposed itself the liability premises specifically, 474. More propos- question and never withdrew right to control applies only USI had the Nevertheless, agrees with al. the Court premises where and when Le both USI, reverses, take-nothing renders Cty. Cameron vine’s accident occurred. See judgment. respectfully I dissent. (Tex. Brown, 549, 554 v. 80 S.W.3d Old, 2002); v. 946 Mgmt. Co. Lefmark I. 1997).2 (Tex. 52, Premises- S.W.2d 53-54 Misstatements liability “generally with the run[] duties USI’s-negligenсe jury The found property” ownership or control of the injuries. proximately caused Levine’s The to contractor who not apply do not does on that ver- judgment trial court rendered time premises “own or control dict, appeals affirmed. 520 and the court Occidental, 478 accident.” S.W.3d [the] 631, Court 2015 The S.W.3d WL 5157837. added). “the (emphasis 643-44 Because es ” judgment for now reverses and renders premises-liability sential of a element USI, not holding Levine could recover claim is the defendant’s ordinary negligence, from based on prem premises question,” “on the date in only have and instead could recovered to a contractor apply ises does liability. To reach that premises based control the when who does not result, however, the Court misstates occurs. 946 Lefmark, accident review, pleadings, and the standard of (emphasis added). at 53-54 evidence. ordinary-negli-
USI contends of review A. The standard gence question jury answered at trial the trial court should outcome of erroneous “Control” determines not have it USI con- explains, premises the Court submitted because this case. As case, granted for new parties tried the trial court Levine’s motion 1. When the first $178,000, trial, however, jury which seems much jury awarded the second awarded See, injury. e.g., surprising kind of less for that nearly $2 million. 724, 729 Hospadales McCoy, 513 S.W.3d v. 2017, (Tex. pet.) App.—Houston no [1st Dist.] & 2. See also Wilson v. Tex. Parks Wildlife ($292,000); Katy Springs Mfg., & Inc. Fava- v. 634, 1999) (Tex. (per Dep’t, 635 8 S.W.3d (Tex. lora, 579, App.—Hous 476 S.W.3d 587 curiam) rule, ("As prevail on a denied) 2015, ($679,- pet. Dist.] ton [14th liability-claim plaintiff prove must that the McChristian, 627.02); Metro. Transit Auth. v. is, owned, possessed—that occu defendant (Tex. 846, App.—Houston 449 S.W.3d 849 inju pied, premises where or controlled—the 2014, ($27,650); pet.) [14th Dist.] no Gothard occurred.”) Page, ry (citing City 276, (Tex. Denton v. Marr, Civ. (Tex. 1986)). writ) ($21,666.55). App.—Waco injury argument trolled the scaffold when the trial court should not agrees, holding The Court occurred. ordinary-negligence have submitted the only premises-liability owed duties question, USI must establish that no rec- allegations “Levine’s es- evidence ord evidence supports jury’s ordinary- tablish nature Levine’s claim Alviar, negligence finding. See Garza v. having relies on retained the (Tex. 1965) (holding control” the scaffold the accident when errs in submitting question added). Ante at (emphasis occurred. jury only if no supports ques- evidence explain But the Court does what it tion). says means “estab- If the ordinary-negligence question “is Although control. appar- lishes” the Court evidence,” supported by some Levine was ently rejects the idea that the evidence question] “entitled to [the submitted control, conclusively must establish ulti- Commc’ns, Triplex to the jury,” Inc. v. *21 mately ignores evidentiary-review the 716, (Tex. 1995) Riley, 900 S.W.2d 718 so, altogether. doing it mis- By standard added), (emphasis and the trial court misapplies states and our well-established have its by would abused discretion refus- standard of review. it, ing to submit Columbia Rio Grande prece Under our clear and consistent Healthcare, Hawley, L.P. v. 284 S.W.3d dent, may ordinary- we conclude that the (Tex. 2009) 851, (concluding trial court 862 negligence question was and the erroneous by refusing abused discretion its submit trial court should not submitted it to jury “supported by plead- instruction the jury only if it the has “no basis in the law evidence”). ings and So we must focus on Consol., the evidence.” v. KPH Romero allegations sup- the whether and evidence
Inc., 212, (Tex. 2005); 166 215 see S.W.3d port ordinary-negligence theory the 230, Smith, Cty. Harris v. 96 S.W.3d 236 proposed.and the trial court submitted at (Tex. 2002) (“[T]he duty -to trial court’s is Lillebo, 683, v. 722 trial. S.W.2d 687 Moore instructions, only questions, submit those (Tex. 1986) (holding properly trial court pleadings raised and definitions the and jury issues submitted because “there is evidence.”); Smith, the Elbaor v. 845 support some evidence submission (Tex. 1992) 240, (explaining 243 S.W.2d issues”). To question, these answer that requested trial courts’ “to- duty submit the “we must examine record evidence if questions jury pleadings to the the ignore supporting question] and [the all them”); support any evidence see also Tex. Elbaor, contrary.” evidence to the 845 App. 61.1(a) (stating R. P. this Court added). (emphasis at 243 S.W.2d may judgment not the reverse unless The Court does not this apply standard complained-of “probably error caused the fact, explains review. never Court improper judgment”). rendition of an applies. evidentiary what standard it On ordinary-negli- not contend that an does hand, it asserts that the law,” the one evidence gence question has “no basis “compel[s]” the conclu “establishes” so it must that “no evi- instead establish right sion that to control USI had supported dence” its submission 215; not Romero, support” “do[es] scaffold and jury. see See assertion “that USI had Ante Hyundai Rodriguez, also control.” Mоtor Co. (Tex. 1999) 469, hand, the Court (holding 480. On other merely not asserts that the evidence “reflects” should have submitted breach-of- allegation with an implied-warranty claim “no evi- is “consistent” op it). supported prevail dence” To controlled the scaffold. Id. its USI trial, question court submitted expressly Court 5157837. The WL allegations and evidence any whether of re- rejects our standard well-established question the-de support different would our “inapplicable” and asserts view urges ordinary- If appeal. fendant sort does “some depend review writ negligence question is “raised Id. sufficiency-of-the-evidence standard.” evidence,” it. is not- pleadings ten at 470 n.l. the trial court must submit erroneous Court, According 278; we determine Rodriguez, R. Civ. P. it.- Tex. “substantive, proper nature first deter- “by at 663. the claim’s This non-dis S.W.2.d - courts alleged cretionary requires .trial plaintiffs directive” mining the source of jury to the requested questions “to submit then injury—premises defect—-and deter- pleadings if owed, concluding that mining the duties them,” Elbaor, (empha at 243 general defendant owed contractor added). may “A refuse sis trial court it retained a premises duties plaintiff if no, evidence exists only submit an issue right to work that created submission,” (emphasis Id. warrant (em Id. at 470 n.1 condition.” added). added) Williams, (citing Clayton phasis W. whether Court asserts-that Jr., Olivo, Inc. v. 528-29 negligence or ordinary sounds (1997)). But whether the we know can “legal question” to control the “retained defendant *22 novo, of question the de review record, looking in the work” evidence allegedly that caused whether “a condition of necessarily apply so “some sort must we plaintiffs premises injury the is is defect sufficiency-of-the-evidence Pre standard.” 469 legal question.” (emphasis Ante at (and contrary precedent), sumably our added) Tex. at (citing Sampson v. Univ. of can the Court believes we that conclude (Tex. 2016)). Austin, 380, 385 to control if USI retained the work the But we need decide whether condi- conclusion, that supports some evidence injury tion Levine’s was that caused if con even other establishes the evidence disputes premises one that defect—no trary. the the But avoids issue Court Instead, must 'decide whether USI was. we say refusing evidentiary-review what premises where the controlled though it is Even applying. standard our though And “the occurred. injury of USI сontrolled determination whether be a may character claim” “le ante, necessarily depends scaffold' n.1, the 'the gal 470 question,” must at we evidence, simply ignores the Court record question answer “the the based facts surrounding in altogeth question.” the evidentiary-review occurrence the standard Realty, Siegler, Centeq v. S.W.2d Inc. 899 er. added). (Tex. 1995) (emphasis 197 notes, As we determine the Court here, When, depends on as the answer trial court submitted an errone- whether a right to control the whether USI . considering jury question by “the ous scaffold, question the may answer of the the nature pleadings parties, and evidence legally as of law.if the matter case, trial, presented the at the evidence control—or on to establish the insufficient .charge in Ante 469 entirety.” and the its at hand, conclusively other establishes con 862). 284 at But (quoting Hawley, (concluding S.W.3d trol. id. 199 “no See at. we,consider to. whether .these determine “a supported facts” even fair.inferenee” Ramirez, control); 463 see also Gonzalez the any allegations and evidence
487 Olivo, (Tex. 2016) 529). According (concluding at S.W.3d light favorable to “even in the most Court, ignore we can our well-established plaintiff], no evidence shows that [the .[de because, in this case standard review controlled,- operated, directed fendant] Olivo, pursuant premises defect “a ease operation trucks in involved jury improperly submitted to under Ma issue”); hauling operations at Coastal only a general-negligence question, with- Tex., Lawrence, rine Inc. v. Serv. of liability out the of premises elements (Tex. 1999) (holding definitions, instructions or the ren- causes “legally suffi plaintiffs evidence was Id. at judgment.” improper dition premises cient owner’s Olivo, 469-70, 529). (citing at ‘right in premises control’ case”). Olivo undisputed in But was Ultimately, approach the Court bases premises contractor controlled the whére Olivo, on a of our misreading decision injury and when the occurred. 952 S.W.2d “explicitly required which we (explaining 526-27 the contractor [premises-liability] court submit ele “operated” gas oil lease and had ments in a premises defect case” and held premis an “on-site representative” o.n plaintiffs that because the “did not obtain a occurred); es where the injury and when finding jury included essential еle . see id (explaining contrac that the claim, they ments of premises their defect Ante land”).3 n.1 (quoting “occupied cannot recover.” at 470 ‘tor the leased The issue (and disputed injury.” 3. What is not Olivo that caused the Id. at 528. The con- here) any,” duty, trolling the "con issue was "what factor in Olivo was the con- whether tractor in to an "right control" owed tractor [indepen- had a "employee work,” independent of an contractor.” dent defect-producing contractor’s] id. 529; general con S.W.2d at 527. Because the that the fact contractor controlled premises, occupied tractor controlled injury where and when oc- give rise it owed duties that could to “two curred—and thus owed premises-liability *23 types failing negligence keep in the simply undisputed. duties—was Because it , premises arising activity safe: from an on that undisputed the was that contractor controlled arising premises, the from a and-that premises premis injury, the and when the where oc- Inc., (citing Redinger Living, es defect.” Id. employee’s curred and the injury that resulted 1985)). (Tex. Bécause dangerous premises, from a condition on the independéilt employee the all contractor’s necessarily his premises-liability claim was a by eged only injured equipment he was that independent claim. And the contrac- "previously ground,” on the and "not as a condition, left dangerous tor created the the contemporaneous negli result of someone's plaintiff prove had to that the contractor con- gence,” premises necessarily was "a Olivo independent trolled the work. Id. contractor's question defect Id. The in was not, case.” Olivo asserts, suggest I do as the Court that n.l, indisputably whether that a contractor occu should be overruled. Ante Olivo pied premises and the where and controlled Because was not Levine USI's subcontractor's liable when the accident occurred was for a employee Levine's employer and did not cre- dangerous injured indepen condition an that condition, dangerous ate the Olivo issue the employee. dent contractor’s “defect-producing whether USI controlled the Olivo, When, dangerous simply work” as in the condition is irrelevant did here. Olivo independent pleadings оut of the contractor’s involve the whether ”aris[es] issue the and work,” conclusively general the who controls evidence established that the contractor only premises duty indepen- prem- occupied the owes to the contractor the a controlled general employee simply injury; dent con- ises at was contractor’s if the the time undisputed over it did. in “supervisory tractor control” We said Olivo that retained that .required independent the the work and was "submit the contractor's that activity [premises-liability] premises control to the or elements in de- a ”relate[d] condition owned, occupied, or con- con- the defendant whether the contractor was Olivo premises and when the work trolled the where independent an contractor’s trolled as- the on The Court errs dangerous injury condition occurred.4 that created on injury the contractor claim based premises, suming any the whether that where premises premises or controlled the condition occupied dangerous caused Id. injury premises- the occurred. The necessarily and when must abe conclusively established Olivo if liability, evidence did not con- even the defendant premis- the contractor controlled that the the premises trol and when where undisputed, fact that was we es. Because injury occurred. in control” that the “contractor explained appeal, prevail To on this must duty as an with same “charged only alleged or demonstrate that occupier,” plaintiff so the could owner conclusively that the evidence established claim and only bring premises-liability right or had the that controlled unique elements prove had to in- Levine was scaffold when 529. claim. Id. Prod. v. Energy Berry- Sw. jured. See distinction, ignoring this By crucial (Tex. 2016) Hefland, inconsistent a result that is Court reaches legally insuffi- (explaining that is principle with the well-established fact is com- cient “evidence of vital premises liability applies to contractor or the evidence “estab- pletely absent” to control controlled
who
conclusively
opposite
lishes
a vital
injury
premises where and when
fact”).
Court
To the extent the
concludes
Occidental,
at 643-
occurred.
burden, it
only
met
USI has
be-
44;
at 54.
Court
Lefmark,
The
pleadings
cause the Court misstates
explaining
this
agrees
principle,
with
the evidence well.
liability
“a
under
defendant’s
theory
rests on the defendant’s
pleadings
B. The
of control of
assumption
pleadings
Court misstates Levine’s
dangerous
conditions on
responsibility
Olivo,
by asserting
alleged
But
he
relying
it.”
controlled
Ante
474.
injury
claim based
when Levine suffered
Court asserts
scaffold
alleged
premises-liability
“premises
only
from a
de
he
injury
results
thus
fact,
alleged
prem
Ante at
he
fect”—a
condition
claim.
controlled the
necessarily
premises-lia
that USI
scaffold
ises—must
(asserting
constructed
at least a week
bility claim. Id.
470 n.1
he
injury,
asserted
of before
Olivo
“considered
character
*24
claim. To the
only
general “negligence”
claim
plaintiffs
determining
the
first
alleged
plaintiffs
inju
he
that could
alleged
the source of the
extent
facts
defect”).
premises-liability
claim or an
ry—premises
A claim
either
ordi-
based
defect,” however,
claim,
expressly pled
“premises
nary-negligence
he
must neces
only
allegations
the alternative.
sarily
premises-liability
if his
be
claim
occurred,
any injury
may
undisputed
the contractor
be
feet case” because it
that
was
negligence
creating
for
ordinary
the
premises-liability
liable
was a
case. 952
Olivo
condition,
un
but
liable
defective
cannot
at 529.
premises liability.
n.9. Control
der
See infra
is "the
question”
4.
results
"on the date in
essential
If a claim
from a
defect
premises-liability
element” of a
claim.
a contractor
but the contractor
that
created
Lef
mark,
relinquished
control
before
was of certain that But is not the and/or “only reading fair omissions, pleadings.” Levine’s amounting neg- each and all to added). (emphasis Ante at 475 added). ligence.” (Emphasis alleged Levine that USI committed “only that Court asserts fair twenty specific “negligence,” acts of but reading of pleadings” necessarily Levine’s- assertion, to contrary the Court’s not one “requires the determination that those, acts required that USI allege fact that USI did assumed to control the right when the acci- scaffold right'to retained control the scaffold- specified dent occurred. Fifteen of the ing (emphasis Ante at acts, constructed.” wrongs, alleged or negli- omissions added).5 reading”- this gent “fair that could have Based conduct USI commit- ted either before at the time of the petition, Court that concludes accident, and thus may—but need not—be only necessarily sounds “in Devine’s imply had the read Id. at premises liability.” 634. control the oc- scaffold when accident however, petition, al- never acts, specific other curred.6 The five leged scaffolding however, controlled the omissions, wrongs, alleged entire negligent time the accident. conduct that USI could (cid:127) "failing adequately danger- It is me not clear to whether the determine 'Court say reading created;” a fair of Levine's intends conditions ous petition requires neces- the conclusion he (cid:127) "failing adequately warn [Levine] n (among sarily alleged allegations) other protect himself measures harm;” from of the at the retained control accident, or whether time the Court (cid:127) "failing inspect adequately scaf- reading peti- say intends fair folding;” requires tion the conclusion that he necessari- (cid:127) scaffolding "expressly implying the ly only alleged such control. retained purposes;” safe its intended former, If the Court’s does then assertion (cid:127) “failing dangerous сondi- to correct the *25 support not the Court’s conclusion. See Tex. R. scaffolding;” which the tion existed with 278; Rodriguez, P. 663. If S.W.2d at Civ. (cid:127) "failing scaffolding to maintain the in a latter, simply the the then the Court misstates condition;” proper and safe work pleadings. (cid:127) "failing scaffolding to the in a secure petition Specifically, alleged USI 6. the condition;” proper and safe work in; negligent was necessarily gent oc- acts re- committed the accident asserted
have before accident, of necessarily- five tained allegations These control time the curred.7. at-the expressly everything “in depend pleaded on Levine asserted does right having the the scaf- to the. alternative.” control and fold when the accident thus .occurred only Court also that “the asserts do not the inference that Court’s of reading allegations is that fair necessarily To alleged such control. injury his resulted from physical condi petition the Court the the extent asserts property—a hole scaffold tion the in the only alleged liability re- necessarily of platform, by an sheet covered unsecured quired to control the scaffold contemporaneous plywood—and some accident, conspicu- of Court time is activity.” Id. This assertion true' 473. allegations. ously to address five these fails wé irrelevant. The distinction but resulting injuries “inconsis- 'between from alleged if Levine facts drawn' Even injuries resulting and position premises tent ... USI lacked conditions with the contemporaneous time his from premises of the at the activities indisputably if-the owned con also relevant defendant injury,” ante at he argu- and alleged with that where when facts consistent trolled injury im- we have allegations Specifically, that USI held occurred. ment. Levine’s erected, assembled, premis a contractor controls the and properly secured who in- scaffold, property the time of like inadequately injury, trained and es at prop- who owns at the time employees owner agents and its structed .scaffold, injury, .premises-liability securing the of the has both erecting and erly (cid:127) duty,.,. not to “independent violation of and scaffold erected, duties bystanders by its re policies injure and its own are activities.” In OSHA standards Homes, L.P., any Weekley control over to unrelated completely 2005) (Tex, (citing Redinger, 689 when the accident occurred. the scaffold . Thus, 417). negli- alleged premises-controlling of the contrae- toAnd the extent scaffold, danger- (cid:127) “failing at least a week Levine’s acci- to before [Levine] warn (i.e., correct, maintain, required ex- inspect, ous existed dent failure to condition etc,). by him work- be taken tra care to while scaffolding;” ing on the employees (cid:127) “failing properly alleged train its Specifically, petition to that USI in; hazards;” recognition negligent practices (cid:127) "failing promulgate safety to (cid:127) erecting "improperly assembling, and/or program proper safety and administer securing scaffolding;” type injury;” designed prevent this (cid:127) "failing provide training sufficient (cid:127) "failing provide awith safe [Levine] tec servants, agents, instruction environment;” working representatives employees and/or codes, safety (cid:127) "failing proper to enforce proper erection and use scaffold- rules, practices;” standards and ’' ‘ ing;” instruct; (cid:127) 'failing properly (cid:127) "failing training,, provide sufficient (cid:127) "failing properly supervise;” and warnings agents, to its instruction (cid:127) "failing safety work- to ensure the servants, employees representa- scaffolding.” and/or attempting to use the ers assembly, erecting proper tives on allegations or inac- All assert actions these securing scaffolding;” before have committed could tions (cid:127) (i.e., train, “failing scaffolding in com- erect the ever built the scaffold failure instruct, promulgate safety prac- pliance minimum OSHA supervise, stan- with dards;” tices, (i.e., etc.), built the warn, correct, codes, ."erecting scaffolding (cid:127) safety failure to enforce violation etc.), Defendant(s) building policies." company own after it finished
491 injured party owned, liability depends tor’s an when the occupied, defendant or injury premises on results from a dan whether controlled when the injury (in premises on the gerous condition So which occurred.8 the fact that Levine neces- case, only the contractor can be un sarily alleged liable that a condition of the scaf- or premises liability) from the his injuries der fold is contrac caused irrelevant unless contemporaneous negligent activity he necessаrily alleged only tor’s also that USI (in case, contractor can liable be controlled scaffold when injury oc- Austin, Otherwise, 465 ordinary negligence). curred. if condition of the injuries at 215. this irrele S.W.3d But distinction is caused Levine’s after USI not relinquished scaffold, vant the contractor does control the control of the Le- only oc premises injury proper against' where when the claim vine’s “ordinary negligence,” curs' because such a contractor cannot1 be sounds in in Occidental, premises liability liability. premises liable under all. 478 S.W.3d Lef mark, added).9 (emphasis 946 54. at 647 S.W.2d condition/activity have relied The Court’s that Levine
We assertion crea- cases, tively “attempted in but characterize his distinction numerous claim See, duty e.g., Sampson, 500 (ap remedy S.W.3d to warn at 388 about a dan condition, activity/condition plying duty distinction gerous negligence to deter but on "a in owner); against proper property mine claim to use reasonable care not create the dan Occidental, (applying 478 dis S.W.3d at 644 place.” gerous condition in the first Occiden proper against tal, tinction to determine "claim added). (emphasis 478 S.W.3d 642 owner”); Austin, property 465 S.W.3d at duty in contractor’s such circumstances is in with (discussing 215 distinction connection to the tied not contractor’s control of the landowner”); against Lago claim “the Del quality but "to the its contracted Smith, 762, Partners, Inc. 775 v. 307 S.W.3d 646-47; Keller, Id. at see Allen 343 work.” (Tex. 2010) (discussing distinction of claims "general (explaining negli- at 424 S.W.3d landowners”); Apartments Timberwalk "[a]s claim); principles apply” gonce to such a (Tex. Cain, 749, Partners v. S.W.2d 753 972 Homes, Weekley (explain- 180 at 132 S.W.3d 1998) (applying distinction determine ing that such a claim is no “different from "landowner”); Olivo, against 952 claim any bystander against might assert” what condition/activity (applying at 527 dis “independent duty breach contractor its proper against to determine claim tinction t ,.. injure bystanders by no its activi "occupied” who "in contractor land and was words, ordinary-negligence other ties”—in Kroger premises”); Keetch v. control Co., claim); 787, Gehring, Strakos 360 S.W.2d (Tex. 1992) (apply 845 S.W.2d 264 (Tex. 1962) (explaining that even 790-91 against ing grocery-store distinction to claim though injury from a arises condition on owner); Warner, Grocery H.E. Butt Co. v. continuing premiáes, the contractor’s lia 1992) (Tex. (applying distinc bility relinquishing prеm after control of the gro against proper claim tion determine questions negli "the ises involves basic owner); cery-store Redinger, proximate gence cause” because it arises (discussing claims distinction ordinary' "failure its to use care” from against "general contractor a construc work, performing the its failure to warn site, premises”); tion who is in control of the condition), dangerous remedy Gundolf, Massman-Johnson v. (explaining that contractor’s "basis for (Tex. 1972) (applying distinction to liability” is that "the work contractor's has proper against determine contractor negligently performed”), (explaining been premises). control of the post-control liability contractor’s "is against grounded public policy in the behind law 9. A claim who created a contractor negligence”). relinquished but then We confirmed Occidental condition ordinary- any injury oc- breach before that the contractor’s duty “may judged necessarily premises- negligence ... even curred based not *27 278; liability” Rodriguez, P. neous. See R. Civ. something other than as Tex. Ante at petition. misstates his 480. simply at to the 663. And extent the that petition asserted USI never asserts that the evidence conclusive- Court right to when control the scaffold had right to ly establishes that USI had occurred, ordi- injury and asserted the accident oc- control the scaffold when not depend nary-negligence claims that do curred, Court misstates evidence. such It is true that having control. on USI misstates Specifically, true the Court the evi- cannot “circumvent the nature one for pleading [his] that the evidence con- asserting dence negligence.” (quoting at 480 general Id. (1) USI clusively that had a established 389). But Levine’s Sampson, S.W.3d at duty inspect every to scaffold at the Valero ordinary- unambiguously petition asserted shift, refinery every ante at before work necessarily claims negligence that did (2) 467; inspect the scaf- USI could assert, that USI con- require, imply 635; (3) use, id. at folds and authorize their accident oc- trolled the scaffold when the the scaffolds without USI had access to is its to meet burden to curred. So USI obtaining and permission, Valero’s Valero that court erroneous- demonstrate the trial right no scaffolds without had access the claim, ly ordinary-negligence submitted 635; obtaining id. at permission, USI’s and it must demonstrate the evidence con- that (4) right had USI therefore clusively established that controlled USI accident, the time of the scaffold at id. Unfortunately, the Court mis- scaffold. fact, at 635. In at least some evidence states the evidence as well. (1) that no obligation
establishes USI The evidence C. inspect any unless until scaffold it; (2) inspect asked USI Valero’s Valero explains, party the Court neither dis- As carpenters could scaffolds inspect also is putes Valero hired contractor (3) use; and authorize install, their could modify, inspect, and dismantle scaffolding refinery. any first obtaining at its Port Arthur Id. access scaffold without parties dispute at Nor do the 632. Valero, permit from but Valero could refinery at the at built scaffold obtaining access first without least a week before Levine’s accident. Id. (4) permission; no USI had agree em- they at 633. And right to control when Levine’s the scaffold refinery present were “on ployees at the accident occurred. of, preced- days the date three least Duty inspect 1. injury.” Never- ing, Id. 634-35. theless, the evi- the Court asserts that Citing policies to USI’s and Valero’s its supports conclusion USI had dence regulations, to OSHA the Court asserts control the scaffold Le- establishes “USI Id. at 635-36.
vine’s accident occurred. nearly required inspect three to the asserts that Again, extent the Court refinery thousand scaffolds before conclusion, supports some evidence shift work before each each scaffold’s to establish that assertion insufficient fact, although Id. at the evi- ordinary-negligence question was erro- use.” ing longer liability remains cre controls the that contractor’s the contractor no after 647; behind”) Occidental, ating "premises it leaves premises.” S.W.3d at conditions see Strakos, 790). Homes, (not (citing Weekley 360 S.W.2d at also 180 dence A. does establish scaffolds had to That’s correct. use,” inspected each it also “before *28 only to inspect establishes that Q. —the you minute finish construc- any particular before a shift in scaffold tion, you inspect have to the scaf- used, actually that would be scaffold fold, correct? only and when notified it Valero USI that A. Yeah. It’s inspected you tag when it. would be used. Q. Okay. point that it is ready And only tеstimony inspecting about a day, use that to that shift? scaffold before a “shift” was from Kenneth A. Yes. Broussard, safety USI’s coordinator construction, inspection After tag had Valero site. to Contrary the Court’s asser- updated to be subsequent before shift tion, actually what that Broussard said was during which the scaffold would be used: “many” of the scaffolds—not all—had to Q. Now—and those scaffolds would inspected
be before each shift: have to updated prior be to use? accident, Now, sir, Q. at the time A. Prior to use. Scaffolding United had several Valero, thousand scaffolds out at Q. Okay. you-all Just because built correct? nobody them and was on them something doesn’t mean hasn’t A. Yes. changed on them? Q. many And of those to scaffolds had updated every be shift— A. That’s correct.
A. Yes. Q. if past, Even it’s built two weeks morning they are get to on explained “a lot” of scaf- Broussard them, is it to supposed inspect- be refinery any given folds were at the on ed? day, they every day: but were not all used A. Yes.
Q. And are all those in service same time? Cardenas, Maximo pipe- another Valero not, A. Sometimes. Sometimes Some- working fitter was who scaffold they prebuild. Sometimes times fell, that a when testified scaffold they they build when them tag updated every day” had “to be they stay up need them. Sometimes every “every morning.” But other wit- they get a before on them. while ness—including super- Valero’s So, all there are different times visors—clarified, with Brous- consistent they them. build testimony, inspections sard’s were required only days He on which explain went to that when the scaf- USI first constructed fold would be used. USI was re- premis- a Valero’s And scaffold es, inspection quired USI was conduct the Valero required inspect the scaf- “update” plan fold at that to use scaf- inspec- time and notified USI its tag inspect tion it. its use on that fold asked authorize date: Q. ... update You have to the scaffold Tony Lawrence, maintenance Valero’s it, you building when finish correct? supervisor, explained that was re- put day you A. You on it the date quired inspect construct build it. only if gave a work order Valero Q. it you inspect you letting Because know scaffold was needed
finish, right? particular day: on particular location Scaffolding for that? Would Q. something Is there Valero United Scaffolding let or—you sends United going them know what scaffolds are A. The supervisor. daily on a basis? be used —Mr, Q. Lawrence? scaffold, you Yes. If need a it’s
A. down) (Witness up A. head moves go through the—that work order Q, “yes”? Is comput- generated through the A. Yes. copy do run a And we er. what it to give United Scaffold- *29 Q. Do if you policy know is there ing, we saying what size scaffold regarding inspection or procedure. location need the need and what we scaffoldings to be they before are on. scaffold used? A. Yes. anything Do Q. you-all give to United you that? And what do -know about Q. Scaffolding to let know which them normally get update them A. We scaffoldings you-all those would scaffolding. basis, daily using on to your be When? knowledge? Q. thing morning. in the A. The first you that if way up A. The it’s set scaffolding up have and the scaffold And how United you-all would let or up days has three now been two Q.
' Scaffolding know- scaffolds going to you you’re see where ; already (cid:127)that are there needed scaffolding day, use the the next to be updated? procedure normally there’s where [Travis, superin Bob USI’s you our supervisors, call A. We and. tell day and let him know the supervisors notify tendent] United Scaffold- they go before. And the next out ing.
day you update Q get before there and And, so, one been this would have scaffolds. Tony Lawrence?
A Uh-huh. Q “yes”? Is that a Q, You said that Valero send no- does Scaffolding day tice to United A Yes.
before to let them scaf- know what said, notify, you Q And they would using fold be the next Valero would Scaffolding? United day, correct? A Yes. Q
A. Correct. you know United Scaf- who Do they notify? would folding Green, boilermaker, Charles a Valero A Bob [Travisl. explained confirmed this and that Law- rence contact USI let it know would n particular when a scaffold be needed you're But of that policy? aware <© tag updated: or its to be “revised” needed notify > Yes. I is that All we know Now,
Q. update or on a scaf- when those revisions we need up- changes scaffolding folding; they needed come out and done, it. call. at it update who date it—look typically would Travis, that, superintendent, Levine.explained finally, confirmed Vale- USI’s And required inspect ro would make that USI sure scaffolds were inspected do so: unless notified before he used them: Valero Q. things refinery And one put Q. you guys up After scaffolding, of is scaffolding if the makes sure go by periodical- ever arid you-all do gets inspected yоu get before out ly inspect it look at it? your job, right? there'to do Every day prior going to them A. A. That’s correct. it.
work Q. scaffolding If the been in- Q. Okay. they How about start after they you spected, go would allow working it? working? there and start out A. called. [were] When or— Q. Okay. youDo to be called
A. Yes. Q. you supervisor And were a Benoit, supervisor at the Daniel times, during you, you those need- explained refinery, Valero that USI something revisions scaf- ed *30 made to a scaffold Valero con- revisions folding, you, supervisor, as a would so, to do tacted Travis and asked USI and done, cor- get call and [USI] only inspected they the scaffolds' when rect? upon then first constructed and Vale-
were ,1A. I don’t think ever to [USI] called request subsequent each use: ro’s before do revision on for me. a scaffold practice—back in De- Q. was What Q. you supervisor. Do But could as a cember, Valero, 2005, at what was or, you way know the other? one Scaffolding on practice United IA. could have. that, And, by I making revisions? Ignoring testimony, all this Court mean, you-all how when to do know to policiés cites instead and Valero’s revisions? make regulations and to OSHA and' asserts that to go. contacted A. We’re evidence establishes “USI was Q. you? contacts Who required inspect nearly to three thou- refinery each sand scaffolds at before A. Bob me. tells work shift and before each scaffold’s use.” Q. And who contact Bob? would- Ante at 467. Neither source is sufficiently A, the revisions. Whoever would.need however, specific, .to the Court’s regulations simply
assertion. The OSHA it inspect Do to once it’s Q. you have provide: and scaffold compo- “Scaffolds completed? inspected nents shall be defects visible competent person each before work Only use. prior A. their shift, any occurrence which could and after Q. Well, you before Okay. what about integrity.” affect a scaffold’s structural put tag it? on 1926.451(f)(3). regu- Reg. OSHA While Oh, yes. A. expressly does not lation address whether So, you Q. Okay. completed, it’s once requirement applies scaffolds you tag put look at and then shift, particular not be on a Vale- will used it? regula- policy, adopts ro’s which OSHA tion, Yes, yalero required A. ma’am. confirms that scaf- only if an em- “CONTRACTORS shall ensure each inspect а scaffold “affected shift ployee” working inspected prior be fold each work would scaffold during “Temporary that shift: Elevated allowing AFFECTED EMPLOY- before built, inspected, work,” Platforms shall be begin Work testi- EES witnesses standards, in- per used OSHA which carpenters fied that who worked Valero’s following: clude the ... CONTRACTORS refinery “competent per- at the also were pri- inspected ensure each scaffold is shall they too could sons” under OSHA allotting AF- or to each work shift fact, inspection tag. In update an Valero before begin EMPLOYEES to work.” FECTED charge carpenters updating been added). (Emphasis scaffolding “years” before Valero hired USI. was This establishes that USI construct- required previously inspect got when he to the Levine testified that during ed shifts scaffold before on the of the scaffold date accident—De- used, only if scaffold would be tag 2005—he cember checked it know the Valero contacted USI let inspected confirmed that had been As the would fact used. scaffold updated day: explains, undisputed that USI Court it is So, you Q. how would know whether constructed the on which Levine scaffolding in- had been injured at least week before ? spected you got on it ... accident, and not contact USI Valero did yellow A. Because the date request any or other inspection work tag.' the scaffold Ante before Levine’s accident. Q. yellow And what date was on the result, As consistent with the 476-77. tag?
parties’ policies, contract and USI had *31 obligation inspect the scaffold before A. 2005. December it, fact, employ- Levine used and USI’s refinery on present not at the
ees were Q. no- your testimony And is that day prior or for the the accident three body any to call for would have had days. inspection day? that type Authority inspect No, yellow tag A. because the that said The Court also the evidence misstates [inspected] the scaffold was Decem- place[d] upon when it asserts that “Valero you ber 26th. That’s all need. authority ... to authorize the sole testimony, about' When asked employees Valero to use scaffolds USI (USI’s coordinator) safety Broussard site added). (emphasis constructs.” Id. at 476 testimony initially that asserted fact, establishes substantial evidence could not correct no USI em- others, including that of Valero’s em- some refinery ployеes day: were at the that ployees, authority inspect a scaffold Q. you me—you But can’t tell can’t tell update inspection tag and thus and jury this that that scaffold wasn’t employees to use the authorize Valero’s updated morning. that Fair? scaffold. there, A. man. We weren’t We were noted, require regulations As the OSHA so, not in plant; that we did inspected that scaffolds “be for visible de- inspect it. by person.” Reg. fects competent OSHA added). however, 1926.451(f)(3) agreed, al- that (emphasis And He then Valero’s though policy provided carpenters “competent persons” that were also Valero’s inspected they inspected scaffolding, could have and scaffold whose updated tag day: scaffolding does that become? inspected Q. Okay. It could been have A. inspect Not ours because we didn’t else, right? someone it. A. Yeah. Q. Does becomé a Valero scaffold? Q. inspected if it You don’t know A. responsibility, yes. not, carpenter do Valero Q. they accepted responsibility Have you? they for that scaffold that have en- No, I A. don’t. updated? sured is now Q. competent people, Valero has don’t A. correct. That’s they? testimony own thus establishes A. That’s correct. USI’s that USI did not have control of the scaf- They inspected it that Q. could have injured, fold when Levine was morning, right? Valero itself to inspect was authorized They
A. could have. update tag thereby authorize its to use the employees scaffold. Q. Okay, sir. Mr. Levine testified the The misstates the record when it Court updated, scaffold was correct? authority asserts that USI had “the sole A. Yes. give employees Valero access scaf- folds USI has constructed.” Ante at Q. Okay. you Do evidence n.4. wrong? that that’s
A. Other than the fact that United B. Access to the scaffold Scaffolding people were—we have The Court also misstates the evidence were not in that it asserts that USI could access the So, plant. people of our in- none permission without scaffolds Valero’s So, I spected yes, say can it. we did not access them without Valero could inspect it. Court, permission. According to the it, I Q. you inspected ask if sir. didn’t *32 requiring toUSI au- “mandatefd] Valero inspected Could else have someone following a thоrize the use of it? And, proper inspection.” Id. person. A competent A. Sure. says, employee “No au- Court was Valero facts, light use, In construct, of these ex- Broussard thorized to or dismantle that, in- plained if conducted the securing per- Valero first scaffold without tag, established, spection updated and the scaffold mission.” Id. at 478. Evidence belonged only that shift however, to and Valero retained control over Valero responsible was the scaffold: only Valero and that could ac- the scaffolds requested cess the scaffolds Valero Q. Scaffolding, who Other than United permitted USI to access them. then there, wasn’t who else Valero had competent inspect people could (USI’s superintendent) explained Travis the scaffold? a scaffold at Valero’s USI could access A. Valero. receiving a work order refinery after getting permit Q. scaffolding If to this on from and then Valero went Valero jobsite: exchanger go specific to to the from Valero backside Q. guys from to in to get You an Valero A. We have turn them back" order they you operations put that we need a scaf- them in
who asks so can file, folding at a location? certain . Q. operations, Yes, who is that?
A. And sir. or—yeah, A. Valero Valero. Q. happens And then next? what get A. from work order Valero. testified that Valero’s We And even employees own' to check in had with Vale- Q. Okay. “operations” ro’s “head office and have go jobsite, get A. to And we our operator” particular jobsite, take to a them that, permits. go From look at the alkylation especially like one he unit jobsite, safety require see what the working injured: he was on when ments, especially alky[10], in a[n] is. Q. get to you jobsite, When what (USI’s coordinator) safety Broussard ex- do, you do sir? plained that Valero issued thé work orders A. Over there that’s unit. permits required to and USI was re- you Like I say, specially have to‘be turn them to Valero once USI finished . on the alkylation trained work particular assignment: that hydrochloric unit because acid Q. somebody When needs a scaffold nothing . play is It "eat with. will n erected, papér- does create [USI] you way to the bone. You can all work? So, coming you see smoke out. No, ma’аm, A. I check, not that of. know operations. with Q. Someone a work or- had mentioned Q. operations, After with check in you You-all
der. had work orders for you do what do? scaffolds? operators A. You talk about with A. work—yeah, I think we had Yes. job. They explain type what
had work orders. you job suit have wear do with; they then once explain Q. Is that a document that [USI] would make, you that information and sure keep scaffolding once the was-done? it, you understand have to ado A. I believe keep [Travis] Bob said we operations on' walkthrough with while, them for a and then he would operator you The’ head unit. takes get they I rid' them. But believe jobsite. you on the out there And in, had to be All turned too. everything have to make sure be turned back in. locked, out, tagged go. ready Q. To who? go, you If ready it’s don’t Valero. A- work. Q. permits What about for scaffold- light this Court testimony, *33 ing? something that that you- Was- . the when it asserts misstates evidence keep? all would right to USI retained control or a control a No, A. ma’am. if a scaffold even Valero not send did work Q. order, Why is that? of and that the absence a work "alky” special qualifications 10. refinery special protec- An unit is the area of the and wear injured. where Levine was Valero substantial- gear high exposure tive because of the risk of ly alkylation restricted "accessto the units and to acid. required all workers those to have units order, right to control inspect USI retained a but to or the scaffold access since USI ... “simply had no reason to its building exercise at least a finished it week before right to control the at scaffold that time.” the at Because least accident. some evi- at 478. The record Ante contains no evi- dence not establishes USI did control right ability that USI or the dence had the right or a duty have or to control fhe a alkylation to access an at unit occurred, .scaffold scaffold when the accident the- receiving without first a work order and conclusively evidence not establish does getting permit. contrary, a To the the evi- result, the As contrary. both the allega- a dence establishes that once USI finished tions and support the evidence the ordi- constructing the scaffold at refin- Valero’s nary-negligence question the trial cоurt it no ery, right obligation had or to submitted, access .question and the not was erro- (cid:127) or inspect the scaffold unless Valero re- . neous.
quested permitted toUSI do so. Right to control the of at time the II. accident Waiver and Invited Error Lastly, the Court misstates evidence irony The in this case great is that the it asserts control USI “retained parties undeniably tried the case as an over from scaffold construction ordinary-negligence case—twice—and did through dismantling.” at Ac- Id. 478-79. any objection so without party. from either cording evidence, to right no USI had theory Levine’s “was that USI negligently or to obligation inspect previously con- by failing the- scaffold constructed nail plant structed unless scaffold Valero piece plywood place plat- into grant- submitted a work order Valero theory, got form. In he permit requiring or allowing ed USI (USI’s coordinator) safety Broussard control particular assert over a scaffold. that the plywood admit have “should been is undisputed The evidence that Valero did is no nailed and that “there down” excuse grant permit not submit work order plywood for that to be not nailed down.’* inspect toUSI the scaffold on which .(USI’s got supervisor) He then Benoit least, injured. Certainly, Levine was that, though he admit was the “com- even does conclusively not establish charge petent person” team that right had control or USI scaffold, he not constructed did know the scaffold at the time of Levine’s acci- policy about time USI’s written dent. “to requiring plywood.” nail down the them
D. The conclusion ordinary- also tried the USI. an case case, petition negligence objecting asserted based without ever “negligence.” alleged liability theory. It never In USI had defense claim, control of or a argued to.control not been the scaffold could accident, ¡at not negligent present time and none of the because it alleged day specific negligent necessarily refinery and it acts accident required obligation inspect have such control. scaffold had notify evidence establishes that USI did have because Valero did not USI that control of the at the scaffold time use scaffold intended to and did request inspection. opening accident not notified state- Yalerо ment, that it to use the asserted that “Valero intended *34 scaffold, requested they and had not or contractor. a call authorized USI needs 5Ó0
[USI], claim, negligence princi no it because have is still [USI] would idea rooted held, they a have They ples. specifi when will need scaffold. and the Court We added). 635-36, notes, (Emphasis plain to tell see that a cally us.” And id. at argument, urged jury, closing premises-liability “when tiff a claim may submit you get to you charge look at the jury by submitting question control and “a a being negligent, question about question,” long [USI] negligence broad-form as what did do? We weren’t We we there. incorporate as “instructions that the ... inspect negligent? couldn’t it. How are we premises accompany ... defect elements doing something negligent How are we Olivo, questions.” 952 S.W.2d being couldn’t do but for absent?’’ charge The jury here included a broad- Now, argues only USI that Levine could form question a negligence lacked but premises-liability claim assert a question on and instructions actually controlled the scaffold at the USI premises-liability According elements. to time of the accident. rule, merely the Court’s own this is Regardless parties’ shifting argu- submission, complete omis defective ments, par- important is that both fact (“[T]his sion. See ante at’ 480 was case case, any objection, tried the without ties jury to only gener submitted under ordinary-negligence an cáse. At the first as al-negligence theory of recovery, mtkout trial, ordinary- proposed itself USI the elements in court negligence question. After the trial ” (emphasis structions or definitions.... trial, granted parties a new tried the added)) Olivo, (citing at 529 trial, again. At case the second jury charge that (holding single asked “a jury charge submitted the same with the simple question” negligence about defen- question ordinary-negligence same employee ele- essential “omitted dant’s Although proposed had at the first trial. claim”) (em- ments of defect (if party the record does not reveal which added)). phasis agree I with Levine that any) actually requested submitted failing complaint by USI waived its trial, charge same at the second the record object to the omitted elements. See Tex. R. (and agrees) reflects did not (explaining P. “omitted ele- Civ. object withdraw or submission' ment elements shall found be deemed ordinary-negligence question the same the court in such manner as proposed at first trial. judgment”). that, argues even his assertion, Contrary the Court’s premises liability,' could sound object charge burden to a defective any complaint jury waived about neither a “new rule” nor affirmative charge by object failing to to the submis defense. Ante 470 n.1. Parties have had sion of ordinary-negligence question guidance of Rule 279 since 1940. And recognizes trial. The that our Court rules (as re require object evidentiary burden would be defendant a defective defense) quired theory recovery of an affirmative underlies pre submission error, procedural preservation serve see Tex. R. Civ. P. but burden Rule See, e.g., Corp. imposes. holds Rule is irrelevant here be Serv. Int’l v. (Tex. 2011) Guerra, theory recovery cause “the correct I entirely.” disagree. (noting omitted Ante at 481. elements deemed found under Rule Although premises-liability supported claim is inde still be sufficient must evidence). pendent ordinary-negligence from an *35 negligence. its And if all of had not even that were even waived
And incorrect, failing object, agree alleged I with USI invited the error complaint by trial court I complaint. Levine that USI invited the and waived its would hold that ordinary-negligence by proposing err jury’s is entitled recover on the question. Since record reflects finding negligently that USI caused Lev- simply trial used the the second not, injuries.11Because the Court in’s does proposed question USI had same I respectfully dissent. trial, it
first does that USI not reflect pro- question
ever withdrew it case, very
posed same USI invited “Par- complains.
the error of which it now may by requesting not error an
ties invite objecting and then
issue submission.” De Lastra, Corp.
Gen. Chem. v. La 1993) (Tex. (holding GREEN, Petitioner, Paul “requested invited error defendant very issues now seeks Lago, avoid”); see Del SCHOOLS, DALLAS COUNTY (“The allowing pur- in not error Smith Respondent claim, if negligent-activity a separate sue behest.”). any, Lago’s occurred at Del No. 16-0214 III. Supreme Court of Texas. Conclusion May OPINION DELIVERED: of re- The Court misstates the standard Rehearing July Dismissed view, Le- pleadings, evidence. claim ordinary-negligence
vine asserted At pleaded supporting facts that claim. evidence established that USI
least some control of the scaffold
did accident, the evidence
time Levine’s conclusively
certainly did establish allega- had such control. Because conclusively
tions and do not es- the premis-
tablish had control of that USI accident, I say cannot
es the time
that, law, ordinary- as a matter of
negligence question was erroneous. Under law, against a proper claim con-
Texas danger- negligently
tractor who creates land and
ous condition another’s then
relinquishes before ordinary
any injury is a occurs proceed appeal, to answer that new trial. I would 11. USI raises a second issue ask- granting ing order question, whether a trial court’s Court does not reach. appeal new after the reviewable