Lead Opinion
delivered the opinion of the Court,
In this slip-and-fall case, we are presented with' two challenges to a trial court judgment rendered against a scaffolding contractor. First, the contractor challenges the jury submission of the plaintiffs claim under a general-negligence theory of recovery, arguing that the plaintiff brought a claim for premises liability, which necessarily fails because the plaintiff did -not request and obtain findings on the elements of that claim. We hold that the plaintiffs claim against the contractor sounds in premises liability, and a general-negligence submission cannot support the plaintiffs recovery in a premises liability case. Second, the contractor challenges the trial court’s order granting a new trial, arguing that the new trial, order can be reviewed by direct appeal after final judgment was rendered in the subsequent trial. While the contractor presents an interesting issue, we do not reach it because our .ruling on the submission issue is disposi-tive in the contractor’s favor. We reverse the court of appeals’ judgment and render a take-nothing judgment.
I. Background and Procedural History
On December 26, 2005, James Levine, a pipefitter for Valero Energy Corporation and an employee at Valero’s Port Arthur refinery, was scheduled to work an overtime shift in the refinery’s alkylation unit. Because it was an overtime shift, Levine did not work with his usual crew, but each member of the overtime crew was a Valero employee. The overtime crew was tasked with routine maintenance that required the installation of two blanks into an exchanger, a dangerous job that placed Levine and other crew members more than fifteen feet above the ground on a scaffold, where they donned protective clothing and were supplied “fresh air” through special equipment that was constantly monitored by a crew’ member. Levine alleges that he slipped on a piece of plywood that had not been nailed down, causing him to fall up to his arms through a hole in the scaffold, "Levine alleges that he ’ suffered a neck injury ás a result of the fall.
The scaffold on which Levine allegedly fell was constructed by United Scaffolding, Inc. (USI), a contractor Valero hired tо build scaffolds at its Port Arthur refinery. According to .both USI’s and Valero’s scaffold policies, and in compliance with Occupational Safety and Health Administration (OSEA) regulations, USI was required to inspect the nearly three thousand scaffolds at the refinery before each work shift and before each scaffold’s use. It is undisputed that USI assembled the scaffold at issue approximately one week before the maintenance work commenced, and it is undisputed that USI representatives were not present on the date of, and at least three days preceding, Levine’s fall.
Levine filed a motion for new trial, asserting that the jury’s verdict was against the great weight and preponderance of the evidence. The trial court agreed and granted a new trial “in the interest of justice and fairness.” In re United Scaffolding, Inc.,
The case was tried for a second time in February 2014. Just as it did in the first trial, the trial court submitted a general-negligence question to the jury, and USI neither offered a premises liability question nor objected to the general-negligence question. At the conclusion of the second trial, Levine faired much better. In addition to allocating 100% of the responsibility to USI, the jury awarded Levine nearly $2 million in past and future damages. USI filed a motion for new trial and a motion for judgment notwithstanding the verdict. In its motion for judgment notwithstanding the verdict, USI raised the argument, for the first time, that the trial court.improperly submitted a general-negligence question to the jury when Levine’s claim sounded in premises liability. Levine cited our decision in Clayton W. Williams, Jr., Inc. v. Olivo,
USI raised two issues on appeal: (1) whether Levine’s claim was improperly submitted under a. general-negligence theory of recovery; and (2) whether the new trial order following the first trial was improperly granted. The court of appeals affirmed the trial court’s judgment.
II. Character and Submission of Levine’s Claim
In its first issue, USI contends that it is entitled to a take-nothing judgment because Levine’s premises liability claim was improperly submitted to the jury under a general-negligence theory of recovery. Levine argues that his claim was properly submitted and, even if his claim sounded in premises liability, USI waived its argument either by not objecting to the jury charge or by inviting the error when it requested a general-negligence question in the first trial. As we explain below, both Levine’s trial court petition and the evidence presented at trial compel the conclusion that Levine’s claim is premised on USI’s having the right to control the scaffold at the time Levine allegedly= suffered injury. We hold that Levine’s claim sounds in premises liability, and, as a result, the general-negligence findings cannot support Levine’s recovery. Additionally, we hold that USI neither waived its submission argument nor invited error and that USI properly preserved error by raising its argument in its motion for judgment notwithstanding the verdict.
A. Standard of Review
A trial court must submit jury questions, instructions, and definitions that “are raised by the written pleadings and the evidence.” Tex.R. Civ. P. 278; see also Hyundai Motor Co. v. Rodriguez,
Whether the condition that allegedly caused the plaintiffs injury is a premises defect is a legal question, which we review de novo. See Sampson v. Univ. of Tex. at Austin,
B. Character of Levine’s Claim
“A general contractor in control of the premises may be liable for two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect.” Id. at 527 (citing Redinger v. Living, Inc.,
1. Theories of Recovery
[A] person injured on another’s property may have either a negligence claim or a 'premises-liability claim against the property owner. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. When the injury is the result of the property’s condition rather than an activity, premises-liability principles apply.
Occidental Chem. Corp. v. Jenkins,
Negligent-activity and premises liability claims “involve closely related but distinct duty analyses.” W. Invs., Inc. v. Urena,
(1) that [the defendant] had actual or constructive knowledge of some condition on .the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the. defendant] did not exercise reasonable care to reduce or to eliminate the risk; and (4) that [the defendant’s] failure to use such care proximately caused [the plaintiffs] personal injuries.
2. The Source of Levine’s Injury
Understanding the general principles that distinguish negligent-activity from premises liability claims, we next turn to whether Levine’s alleged injury resulted from a contemporaneous negligent activity or a condition on the property. See Sampson,
In this case, Levine alleged that he was injured when he fell through a hole in the USI-constructed scaffold after a piece of plywood that was not nailed down slipped from under him. Levine has never alleged that any sort of contemporaneous, ongoing activity caused his injury. Rather, in his trial court petition, Levine alleged that USI created a dangerous condition by “improperly assembling, erecting, and/or securing the scaffolding.” Levine further alleged, among other things, that USI failed to “adequately determine dangerous conditions created,” “correct the dangerous condition which existed with the scaffolding,” “secure the scaffolding in a proper and safe work condition,” and warn “that a dangerous condition existed which required extra care to be taken” by Levine while working on the scaffold. In essence, Levine claims that his injury resulted from a physical condition USI created and then left on the premises. We have repeatedly characterized such slip-and-fall claims as premises defect cases because the injuries were alleged to have resulted from physical conditions on property. E.g., Olivo,
We next consider the court of appeals’ conclusion that Levine’s claim was nevertheless properly submitted under a general-negligence theory of recovery because “USI did not have a level of control sufficient to establish, a premises defect claim.”
3. USI’s Duty to Levine
We begin with the question of whether any duty of.care USI owed Levine as to the scaffold condition is derived from our premises defect body of law, as ]JSI contends. Levine argues on appeal that no premises liability claim exists because USI, a contractor, did not own, physically possess, or control the premises and therefore-owed Levine no duty under a premises liability theory; rather, USI was hired to assemble the scaffold and did so negligently, making this purely a negligence case. Whether a duty exists is a question of law for the court, and the presence of an unreasonably dangerous condition weighs in favor of recognizing a duty. Allen Keller Co. v. Foreman,
a. Status of Parties
Generally, an owner or occupier of property has a duty to keep the premises under its control in a safe condition. Redinger,
An owner or occupier generally does not,have a duty to ensure that a general contractor performs work in a safe manner. Redinger,
In premises liability cases, we have held that “the duty owed to the plaintiff depends upon the status of the plaintiff at the .time the incident occurred.” Urena,
Neither party disputes that USI, a. third-party company Valero hired to install, inspect, modify, and dismantle scaffolding at its Port Arthur Refinery, is a general contractor. As a general contractor, USI thus may be subject to liability for breaching.any duties that a property owner would owe to business invitees. Re-dinger,
b. Control
We next review Levine’s pleadings and the evidence presented at trial to determine whether Levine’s claim relies on USI’s right to control the scaffold, or on USI’s having relinquished control of the scaffold.
Levine does not explain how, absent cоntrol, USI could have the duty to train, instruct, inspect, supervise, maintain, or ensure the safety of workers charged with using the USI-construeted scaffold. Instead, Levine now argues that USI’s trial defense—that USI was not present on the Valero work site at the time of Levine’s accident and that Valero did not notify USI of its intent to use the scaffold, which would have triggered USI’s inspection of the scaffold to ensure its safety before the shift began—constitutes an admission by USI that it did not control the scaffold. But USI’s argument does not create a dispute over Levine’s assertion of USI’s control; in fact, USI argues quite clearly that it controlled and was responsible for the scaffold.
The evidence presented at trial is consistent with our reading of Levine’s pleadings. The scaffold erected in the alkylation
Under Valero’s scaffolds policy, located within its General Guidelines for Contractor Safety, Valero mandates that, among other things, “CONTRACTORS shall ensure that all users of scaffolds have been trained in the proper use of and the hazards associated with scaffolds prior to allowing employee access to any scaffold.” Additionally, the policy mandates that “CONTRACTORS shall ensure each scaffold is inspected prior to each work shift before allowing AFFECTED EMPLOYEES to begin work.” Finally, “CONTRACTORS shall only allow employee access to scaffolds that are properly constructed, inspected, and tagged.” Thus, Valero places upon USI, Valero’s “CONTRACTOR,” sole authority to authorize Valero employees to use scaffolds USI has constructed.
The dissent confuses the issue by suggesting that Valero would call and “request” inspections from USI only sometimes, when it needed them.
Throughout trial, several witnesses confirmed Lawrence’s testimony. Maximo Cardenas, another Valero pipefitter who worked with Levine on the scaffold at the time of the accident, testified that the purpose of inspecting scaffolding before each shift is “locating things that need to be corrected.” Charles Green, a Valero boilermaker, testified that each time modifications needed to be made to the scaffolding, USI would make them so that he and other workers could work comfortably. Additionally, Green testified that a Valero supervisor would contact USI “first thing in the morning” to inspect scaffolding or would contact USI whenever revisions to the scaffolding needed to be done. Kenneth Broussard, USI’s Site Safety Coordinator, and Bob Travis, a USI superintendent, do not dispute this testimony. Broussard testified, among other things, that USI inspects thousands of scaffolds daily at the Valero facility. Travis also testified that USI inspects the scaffolds it constructs “[ejvery day prior to [Valero employees] going to work on [them].” After Valero employees start working on the scaffold-
Consistent with Levine’s allegations, the evidence presented at trial reflects USI’s right to control the scaffolding it constructed. No Valero employee was authorized to construct, use, or dismantle a scaffold without first securing USI’s permission. The fact that, practically speaking, USI did none of these without first receiving a work order notifying USI of Valero’s scheduled use of a particular scaffold does not mean that USl lacked the right to control that particular scaffold; after all, no general contractor can do the work it was -hired to do without the property owner’s instructions and access.
4. Summary
We conclude, based on the source of Levine’s injury, his pleadings and allegations, and the evidence presented at trial, that Levine’s case sounds in premises liability. See, e.g., Del Lago,
The court of appeals improperly relied on the assumption that USI’s control must be exclusive, believing that only one party can have control at a time. See
Even if Levine attempted to characterize his claim as something other than premises liability, “[creative pleading does not change the nature of a claim.” Sampson,
The dissent characterizes our opinion as “misstating” Levine’s pleadings and the evidence.
C. Submission of Levine’s Claim
Just as Levine “cannot circumvent the true nature of [his] claim by pleading it as one for general negligence,” he cannot creatively request jury questions that would do the same. Sampson,
Because this case was submitted to the jury under only a general-negligence theory of recovery, without the elements of premises liability as instructions or definitions, the verdict “cannot support a recov
III. Preservation of Error
Levine argues that even if his claim should have been submitted under a premises liability theory of recovery, USI either waived the argument because it did not object to the jury charge or invited the error by requesting a - general-negligence submission in the first trial. We first address Levine’s argument that USI waived }ts submission argument by failing to object to the jury charge. A defendant has no obligation to complain about a plaintiffs omission of an independent theory of recovery; rather, the burden to secure proper findings to support that theory of recovery is on the plaintiff, and a plaintiff who fails to satisfy that burden waives that claim. Tex. R. Civ. P. 279 (“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived.”). “If an entire theory were omitted from the charge it would be waived; and [the defendant] would indeed have no duty to object.” Ramos v. Frito-Lay, Inc.,
We recognize, as USI points out, that a defendant must- preserve error by objecting when an independent theory of recovery is submitted defectively. See Tex. R. Civ. P. 279. This includes when an element of .that theory of recovery is omitted. See id. But when, as in this case, the wrong theory of recovery was submitted and the correct theory of recovery was omitted entirely, the defendant has no obligation to object. Were we to adopt Levine’s argument that a defendant bears the burden to object to a jury charge not supported by the plaintiffs pleadings or the evidencе adduced at trial, we would effectively force the defendant to forfeit a winning hand. Should the plaintiff fail to ensure that the trial court submits the appropriate theory of recovery to the jury, we see no reason to require the defendant to ask the trial court to fix an error that would, as here, ultimately result in a-judgment in its favor.
Next, Levine argues that USI invited the charge error by requesting a general-negligence question in the first trial even though the same request was not
Finally, we hold that USI preserved its submission argument by raising it in a motion for judgment notwithstanding the verdict. USI cited Olivo in support of its request for a take-nothing judgment. This gave'the trial court notice of USI’s complaint that the verdict was based on an immaterial theory of recovery that could not support Levine’s recovery on a premises liability claim. See Tex. R. App. P. 33.1; Torrington,
IV. New Trial Order
USI challenges the' trial court’s order granting a new trial, contending that the trial court abused its discretion because the bases it provided for granting a new trial were facially insufficient and because sufficient evidence supported each jury finding in the first trial. See In re Bent,
We do not reach this issue, however, because our holding on the submission issue results in rendition of judgment in USI’s favor, provides all the relief USI requests, and- forecloses consideration of additional issues that do not provide the greatest relief. See CMH Homes, Inc. v. Daenen,
V. Conclusion
Considering Levine’s pleadings, the nature of the case, the evidence presented at trial, and the jury charge in its entirety, we hold that Levine’s claim is properly characterized as one for premises liability. Levine’s failure to request or seсure findings to support his premises liability claim, therefore, “cannot support a recovery” in this instance. Olivo,
Notes
. The dissent suggests that we apply the improper standard of review because we do not review the legal question of the character of Levine’s claim under some sort of sufficiency-of-fhe-evidence standard.
. We note that Levine alleges inconsistency between USI's argument on appeal—that USI retained control over the scaffold that allegedly resulted in Levine’s injury—and USI’s argument at trial—that USI was not responsible for Levine's injury that allegedly resulted from the scaffold’s condition. As an example, . Levine points to testimony from USI Site Safety Coordinator, Kenneth Broussard, who testified that if Valero inspected the scaffold, then Valero assumed responsibility for the scaffold. That testimony does not indicate that USI lacked control. Rather, it simply represents one lay witness’s opinion that responsibility for the, scaffold belonged to whichever party conducted the inspection. Ultimately, however, USI’s trial argument that Valero did not notify USI of its intent to use the scaffold prior to Levine's accident, thus relieving USI of liability, speaks to the element of breach, not duty.
. OSHA defines a "competent person” as "one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.” 29 C.F.R. § 1926.450(b) (2016).
. The dissent correctly references trial testimony that Valero had "competent persons” on site who could inspect scaffolds, but the dissent makes an inferential leap when it suggests that this testimony proves USI lacked control.
. The dissent claims that USI did not have access to the scaffolding because it had to ■ secure “work orders and permits" from Valero.
. The dissent seems to contend that Levine's cláim sounds in general negligence based on a line of cases originating with our 1962 decision in Strakos v. Gehring,
. See supra Part II.B.3.b.
. See supra note 1.
. Levine also- makes three' arguments that ■ USI waived its right to object to the order granting a new trial. First, although USI twice pursued mandamus relief in this Court, USI did not object to the new trial order at issue or otherwise raise complaints in the trial court. See Tex. R, App. P. 33.1(a) (requiring preservation of a complaint in the trial court through timely request, objection, or motion stating specific grounds for ruling sought). Second, although USI complained in the court of appeals that the trial court erred in granting a new trial, USI failed to raise the specific arguments that it now makes in support of its position that the trial court abused ■ its discretion, See Tex. R. App. P. 53.2(f) (stating that matters originating in the trial court should have been preserved, for appellate review in the trial court and assigned as error in the court of appeals). Third, although USI’s petition for review contains arguments similar to those USI made in the court of appeals, Levine argues that USI never raised its specific complaints about the form and explanation of the new trial order until its brief on the merits in this Court. See Tex. R. App. P. 55.2(f) (stating that a petitioner’s brief on the merits must be confined to issues or points stated in the petition for review); Ramos v. Richardson,
Dissenting Opinion
joined by Justice Lehrmann and Justice Devine, dissenting.
James Levine was injured while working at his employer’s refinery when he:fell through the platform of a scaffold. According to Levine, a piece of plywood that should have been nailed into the. platform but was not slid out from under him, causing him to fall through the resulting hole. As a. result of this so-called “slip-and-fall,”
I.
Misstatements
The jury found that USI’s-negligence proximately caused Levine’s injuries. The trial court rendered judgment on that verdict, and the court of appeals affirmed.
A. The standard of review
“Control” determines the outcome of this case. As the Court explains, premises liability, applies if USI controlled the scaffold on which Levine was injured and thus had “responsibility for dangerous conditions on it.” Ante at 474 (quoting Occidental Chem. Corp. v. Jenkins,
USI contends that the ordinary-negligence question the jury answered at trial was erroneous and the trial court should not have submitted it because USI con
Under our clear and consistent precedent, we may conclude that the ordinary-negligence question was erroneous and the trial court should not have submitted it to the jury only if it has “no basis in the law or the evidence.” Romero v. KPH Consol., Inc.,
If the ordinary-negligence question “is supported by some evidence,” Levine was “entitled to have [the question] submitted to the jury,” Triplex Commc’ns, Inc. v. Riley,
The Court does not apply this standard of review. In fact, the Court never explains what evidentiary standard it applies. On the one hand, it asserts that the evidence “establishes” and “compel[s]” the conclusion that USI had a right to control the scaffold and “do[es] not support” Levine’s assertion “that USI had no control.” Ante at 469, 480. On the other hand, the Court asserts merely that the evidence “reflects” or is “consistent” with an allegation that USI controlled the scaffold. Id. at 634,
According to the Court, we determine the claim’s proper nature “by first determining the source of the plaintiffs alleged injury—premises defect—-and then determining the duties owed, concluding that the general contractor defendant owed the plaintiff premises duties if it retained a right to control the work that created the dangerous condition.” Id. at 470 n.1 (emphasis added) (citing Clayton W. Williams, Jr., Inc. v. Olivo,
As the Court notes, we determine whether a trial court submitted an erroneous jury question by considering “the pleadings of the parties, and the nature of the case, the evidence presented at trial, and the .charge in its entirety.” Ante at 469 (quoting Hawley,
The Court asserts-that whether Levine’s claim sounds in ordinary negligence or premises liability is a “legal question” we review de novo, because the question of whether “a condition that allegedly caused the plaintiffs injury is a premises defect is a legal question.” Ante at 469 (emphasis added) (citing Sampson v. Univ. of Tex. at Austin,
Ultimately, the Court bases its approach on a misreading of our decision in Olivo, in which we “explicitly required that the trial court submit the [premises-liability] elements in a premises defect case” and held that because the plaintiffs “did not obtain a jury finding that included essential elements of their premises defect claim, they cannot recover.” Ante at 470 n.1 (quoting Olivo,
But it was undisputed in Olivo that the contractor controlled the premises whére and when the injury occurred.
By ignoring this crucial distinction, the Court reaches a result that is inconsistent with the well-established principle that premises liability applies to a contractor who controlled or had the right to control the premises where and when the injury occurred. Occidental,
To prevail on this appeal, USI must demonstrate that Levine only alleged or that the evidence conclusively established that USI controlled or had the right to control the scaffold when Levine was injured. See Sw. Energy Prod. v. Berry-Hefland,
B. The pleadings
The Court misstates Levine’s pleadings by asserting he alleged USI controlled the scaffold when Levine suffered injury and he thus alleged only a premises-liability claim. Ante at 479. In fact, he alleged only that USI controlled the scaffold when it constructed the scaffold at least a week before Levine’s injury, and he asserted only a general “negligence” claim. To the extent hе alleged facts that could support either a premises-liability claim or an ordinary-negligence claim, he expressly pled his allegations in the alternative.
The Court asserts that the “only fair reading of Levine’s- pleadings” necessarily “requires the determination that Levine did in fact allege that USI assumed and retained the right'to control the scaffolding it constructed.” Ante at 475 (emphasis added).
Levine’s petition, however, never alleged that USI controlled the scaffolding at the time of the accident. In the entire petition, the only allegation regarding “control” asserted USI “had direction, control and supervision over the erection/building of the scaffolding,” which necessarily occurred- before the accident. (Emphasis added). I agree we .could fairly read Levine’s petition to allege that USI created a dangerous condition on Valero’s premises by negligently constructing and erecting the scaffold. I also agree that, if the petition could only be read to allege that USI controlled the scaffold at the time of the accident, Levine necessarily asserted a premises-liability claim. See Austin v. Kroger Tex., L.P.,
Levine alleged that USI committed twenty specific acts of “negligence,” but contrary to the Court’s assertion, not one of those, acts required that USI have the right to control the scaffold when the accident occurred. Fifteen of the specified acts, wrongs, or omissions alleged negligent conduct that USI could have committed either before or at the time of the accident, and thus may—but need not—be read to imply that USI had the right to control the scaffold when the accident occurred.
Even if Levine alleged facts “inconsistent with the position ... that USI lacked control of the premises at the time of his injury,” ante at 475, he indisputably also alleged facts consistent with that argument. Levine’s allegations that USI improperly assembled, erected, and secured the scaffold, inadequately trained and instructed its agents and employees on properly erecting and securing the .scaffold, and erected, the • scaffold in violation of OSHA standards and its own policies are completely unrelated to any control over the . scaffold when the accident occurred. And to the extent any of the alleged negligent acts necessarily asserted USI retained control at-the time of the accident, Levine expressly pleaded everything “in the. alternative.”
The Court also asserts that “the only fair reading of Levine’s allegations is that his injury resulted from a physical condition on the property—a hole in the scaffold platform, covered by an unsecured sheet of plywood—and not some contemporaneous activity.” Id. at 473. This assertion is true' but irrelevant. The distinction wé have drawn' 'between injuries resulting from premises conditions and injuries resulting from contemporaneous activities is only relevant if-the defendant owned or controlled the premises where and when the injury occurred. Specifically, we have held that a contractor who controls the premises at the time of the injury, like a property owner who owns the premises at the time of the injury, has both .premises-liability duties and an “independent duty,.,. not to injure bystanders by its activities.” In re Weekley Homes, L.P.,
We have relied on the condition/activity distinction in numerous cases, but only when the defendant owned, occupied, or controlled the premises when the injury occurred.
The Court’s assertion that Levine creatively “attempted to characterize his claim
C. The evidence
As the Court explains, neither party disputes that USI is a contractor Valero hired to install, inspect, modify, and dismantle scaffolding at its Port Arthur refinery. Id. at 632. Nor do the parties dispute that USI built the scaffold at the refinery at least a week before Levine’s accident. Id. at 633. And they agreе that no USI employees were present at the refinery “on the date of, and at least three days preceding, Levine’s injury.” Id. at 634-35. Nevertheless, the Court asserts that the evidence supports its conclusion that USI had the right to control the scaffold when Levine’s accident occurred. Id. at 635-36. Again, to the extent the Court asserts that some evidence supports that conclusion, its assertion is insufficient to establish that the ordinary-negligence question was erroneous. See Tex. R. Civ. P. 278; Rodriguez,
Specifically, the Court misstates the evidence by asserting that the evidence conclusively established that (1) USI had a duty to inspect every scaffold at the Valero refinery before every work shift, ante at 467; (2) only USI could inspect the scaffolds and authorize their use, id. at 635; (3) USI had access to the scaffolds without obtaining Valero’s permission, and Valero had no right to access the scaffolds without obtaining USI’s permission, id. at 635; and (4) USI therefore had a right to control the scaffold at the time of the accident, id. at 635. In fact, at least some evidence establishes that (1) USI had no obligation to inspect any scaffold unless and until Valero asked USI to inspect it; (2) Valero’s carpenters could also inspect the scaffolds and authorize their use; (3) USI could not access any scaffold without first obtaining a permit from Valero, but Valero could access any scaffold without first obtaining USI’s permission; and (4) USI had no right to control the scaffold when Levine’s accident occurred.
1. Duty to inspect
Citing to USI’s and Valero’s policies and to OSHA regulations, the Court asserts that the evidence establishes that “USI was required to inspect the nearly three thousand scaffolds at the refinery before each work shift and before each scaffold’s use.” Id. at 467. In fact, although the evi
The only testimony about inspecting a scaffold before a “shift” was from Kenneth Broussard, USI’s safety coordinator at the Valero site. Contrary to the Court’s assertion, what Broussard actually said was that “many” of the scaffolds—not all—had to be inspected before each shift:
Q. Now, at the time of the accident, sir, United Scaffolding had several thousand scaffolds out at Valero, correct?
A. Yes.
Q. And many of those scaffolds had to be updated every shift—
A. Yes.
Broussard explained that “a lot” of scaffolds were at the refinery on any given day, but they were not all used every day:
Q. And are all of those in service at the same time?
A. Sometimes. Sometimes not, Sometimes they prebuild. Sometimes they build them right when they need them. Sometimes they stay up for a while before they get on them. So, there are all different times they build them.
He went on to explain that when USI first constructed a scaffold on Valero’s premises, USI was required to inspect the scaffold at that time and “update” its inspection tag to authorize its use on that date:
Q. ... You have to update the scaffold when you finish building it, correct?
A. You put a date on it the day you build it.
Q. Because you inspect it when you finish, right?
A. That’s correct.
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Q. —the minute you finish construction, you have to inspect the scaffold, correct?
A. Yeah. It’s inspected when you tag it.
Q. Okay. And at that point it is ready to use that day, that shift?
A. Yes.
After construction, an inspection tag had to be updated before any subsequent shift during which the scaffold would be used:
Q. Now—and those scaffolds would have to be updated prior to use?
A. Prior to use.
Q. Okay. Just because you-all built them and nobody was on them doesn’t mean something hasn’t changed on them?
A. That’s correct.
Q. Even if it’s built two weeks past, the morning that they are to get on them, is it supposed to be inspected?
A. Yes.
Maximo Cardenas, another Valero pipe-fitter who was working on the scaffold when Levine fell, testified that a scaffold tag had “to be updated every day” and “every morning.” But every other witness—including Valero’s and USI’s supervisors—clarified, consistent with Brous-sard’s testimony, that inspections were required only for days on which the scaffold would be used. And USI was only required to conduct the inspection if Valero notified USI of its plan to use the scaffold and asked USI to inspect it.
Tony Lawrence, Valero’s maintenance supervisor, explained that USI was required to construct or inspect a scaffold only if Valero gave USI a work order letting it know that a scaffold was needed at a particular location on a particular day:
Q. Is there something that Valero sends to United Scaffolding to let them know what scaffolds are going to be used on a daily basis?
A. Yes. If you neеd a scaffold, it’s a work order go through the—that was generated through the computer. And what we do is we run a copy of it and give it to United Scaffolding, saying what size scaffold we need and what location we need the scaffold on.
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Q. Do you-all give anything to United Scaffolding to let them know which of those scaffoldings you-all would be using on a daily basis, to your knowledge?
A. The way it’s set up is that if you have scaffolding up and the scaffold has been up two or three days now ' and you see where you’re going to use the scaffolding the ; next day, normally there’s a procedure where you call Bob [Travis, USI’s superintendent] and let him know the day before. And they go out the next day before you get there and update scaffolds.
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Q, You said that Valero does send notice to United Scaffolding the day before to let them know what scaffold Valero would be using the next day, correct?
A. Correct.
Charles Green, a Valero boilermaker, confirmed this and explained that Lawrence would contact USI and let it know when a particular scaffold needed to be “revised” or its tag needed to be updated:
Q. Now, when those revisions or changes in the scaffolding needed to be done, who typically would call. United Scaffolding for that? Would that be you or—
A. The supervisor.
Q. —Mr, Lawrence?
A. (Witness moves head up and down)
Q, Is that a “yes”?
A. Yes.
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Q. Do you know if there is any policy or procedure. regarding inspection of scaffoldings before they are to be used?
A. Yes.
Q. And what do you -know about that?
A. We normally get them to update the scaffolding.
Q. When?
A. The first thing in the morning.
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Q. And how would you-all let United Scaffolding know- which scaffolds •that are already there that needed to be updated?
A. We tell the supervisors, and. our supervisors notify United Scaffolding.
Q And, so, this one would have been Tony Lawrence?
A Uh-huh.
Q Is that a “yes”?
A Yes.
Q And they would notify, you said, United Scaffolding?
A Yes.
Q Do you know who at United Scaffolding they would notify?
A Bob [Travisl.
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■ But you're aware of that policy? <©
Yes. All I know is that we notify that we need an update on a scaffolding; and they come out and update it—look at it and update it. >
Q. After you guys put up a scaffolding, do you-all ever go by arid periodically inspect it or look at it?
A. Every day prior to them going to work on it.
Q. Okay. How about after they start working on it?
A. When we [were] called.
Q. Okay. Do you have to be called or—
A. Yes.
Daniel Benoit, USI’s supervisor at the Valero refinery, explained that USI only made revisions to a scaffold if Valero contacted Travis and asked USI to do so, and only inspected the scaffolds' when they were first constructed and then upon Vale-ro’s request before each subsequent use:
Q. What was the practice—back in Decembеr, 2005, at Valero, what was the practice on United Scaffolding making revisions? And, by that, I mean, how do you-all know when to make revisions?
A. We’re contacted to go.
Q. Who contacts you?
A. Bob tells me.
Q. And who would- contact Bob?
A, Whoever would.need the revisions.
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Q. Do you have to inspect it once it’s completed?
A. Only prior to their use.
Q. Okay. Well, what about before you put the tag on it?
A. Oh, yes.
Q. Okay. So, once it’s completed, you look at it and then you put a tag on it?
A. Yes, ma’am.
And finally, Levine.explained that, Vale-ro would make sure that the scaffolds were inspected before he used them:
Q. And one of the things a refinery makes sure of is if the scaffolding gets inspected before you get out there'to do your job, right?
A. That’s correct.
Q. If the scaffolding had not been inspected, would they allow you to go out there and start working?
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Q. And when you were a supervisor during those times, you, if you needed revisions or something on scaffolding, you, as a supervisor, would call [USI] and get that done, correct?
A. ,1 don’t think I ever called [USI] to do a revision on a scaffold for me.
Q. But you could as a supervisor. Do you know one way or, the other?
A. I could have.
Ignoring all this testimony, the Court cites instead to USI’s and Valero’s policiés and to OSHA regulations and' asserts that the evidence establishes that “USI was required to inspect the nearly three thousand scaffolds at the refinery before each work shift and before each scaffold’s use.” Ante at 467. Neither source is sufficiently specific, however, .to support the Court’s assertion. The OSHA regulations simply provide: “Scaffolds and scaffold components shall be inspected for visible defects by a competent person before each work shift, and after any occurrence which could affect a scaffold’s structural integrity.” OSHA Reg. 1926.451(f)(3). While the regulation does not expressly address whether its requirement applies to scaffolds that will not be used on a particular shift, Vale-ro’s policy, which adopts the OSHA regulation, confirms that yalero required USI to
This evidence establishes that USI was required to inspect a previously constructed scaffold only before shifts during which that scaffold would be used, and only if Valero contacted USI to let it know the scaffold would in fact be used. As the Court explains, it is undisputed that USI constructed the scaffold on which Levine was injured at least a week before the accident, and Valero did not contact USI to request any inspection or other work on the scaffold before Levine’s accident. Ante at 476-77. As a result, consistent with the parties’ contract and policies, USI had no obligation to inspect the scaffold before Levine used it, and in fact, USI’s employees were not present at the refinery on the day of the accident or for the three prior days.
2. Authority to inspect
The Court also misstates the evidence when it asserts that “Valero place[d] upon USI ... the sole authority to authorize Valero employees to use scaffolds USI constructs.” Id. at 476 (emphasis added). In fact, substantial evidence establishes that others, including some of Valero’s employees, had authority to inspect a scaffold and update its inspection tag and thus authorize Valero’s employees to use the scaffold.
As noted, the OSHA regulations require that scaffolds “be inspected for visible defects by a competent person.” OSHA Reg. 1926.451(f)(3) (emphasis added). And although Valero’s policy provided that “CONTRACTORS shall ensure each scaffold is inspected prior to each work shift before allowing AFFECTED EMPLOYEES to begin work,” the witnesses testified that Valero’s carpenters who worked at the refinery were also “competent persons” under OSHA and they too could update an inspection tag. In fact, Valero carpenters had been in charge of updating the scaffolding for “years” before Valero hired USI.
Levine testified that when he got to the scaffold on the date of the accident—December 26, 2005—he checked the tag and confirmed that it had been inspected and updated that day:
Q. So, how would you know whether or not the scaffolding had been inspected when you got on it ... ?
A. Because of the date of the yellow tag.'
Q. And what date was on the yellow tag?
A. December 26, 2005.
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Q. And is it your testimony that nobody would have had to call for any type of inspection that day?
A. No, because the yellow tag said that the scaffold was [inspected] December 26th. That’s all you need.
When asked about' Levine’s testimony, Broussard (USI’s site safety coordinator) initially asserted that Levine’s testimony could not be correct because no USI employees were at the refinery that day:
Q. But you can’t tell me—you can’t tell this jury that that scаffold wasn’t updated that morning. Fair?
A. We weren’t there, man. We were not in that plant; so, we did not inspect it.
He then agreed, however, that Valero’s carpenters were also “competent persons”
Q. Okay. It could have been inspected by someone else, right?
A. Yeah.
Q. You don’t know if it was inspected by a Valero carpenter or not, do you?
A. No, I don’t.
Q. Valero has competent people, don’t they?
A. That’s correct.
Q. They could have inspected it that morning, right?
A. They could have.
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Q. Okay, sir. Mr. Levine testified the scaffold was updated, correct?
A. Yes.
Q. Okay. Do you have any evidence that that’s wrong?
A. Other than the fact that no United Scaffolding people were—we have evidence that we were not in that plant. So, none of our people inspected it. So, yes, I can say we did not inspect it.
Q. I didn’t ask if you inspected it, sir. Could someone else have inspected it?
A. Sure. A competent person.
In light of these facts, Broussard explained that, if Valero conducted the inspection and updated the tag, the scaffold belonged to Valero for that shift and only Valero was responsible for the scaffold:
Q. Other than United Scaffolding, who wasn’t there, who else at Valero had competent people that could inspect the scaffold?
A. Valero.
Q. If Valero went to this scaffolding on the backside of the exchanger and inspected that scaffolding, whose scaffolding does that become?
A. Not ours because we didn’t inspect it.
Q. Does that becomé a Valero scaffold?
A. The responsibility, yes.
Q. Have they accepted responsibility for that scaffold that they have ensured is now updated?
A. That’s correct.
USI’s own testimony thus establishes that USI did not have control of the scaffold when Levine was injured, and that Valero itself was authorized to inspect the scaffold and update the tag and thereby authorize its employees to use the scaffold. The Court misstates the record when it asserts that USI had “the sole authority to give Valero employees to access to scaffolds that USI has constructed.” Ante at 476 n.4.
B. Access to the scaffold
The Court also misstates the evidence when it asserts that USI could access the scaffolds without Valero’s permission and that Valero could not access them without USI’s permission. According to the Court, Valero “mandatefd] requiring USI to authorize the use of a scaffold following a proper inspection.” Id. at 478. And, the Court says, “No Valero employee was authorized to construct, use, or dismantle a scaffold without first securing USI’s permission.” Id. at 478. Evidence established, however, that Valero retained control over the scaffolds and that USI could only access the scaffolds if Valero requested and then permitted USI to access them.
Travis (USI’s superintendent) explained that USI could access a scaffold at Valero’s refinery only after receiving a work order from Valero and then getting a permit from Valero to go to the specific jobsite:
Q. You guys get an order from Valero who asks you that we need a scaffolding at a certain location?
A. Yes, sir.
Q. And then what happens next?
A. We get a work order from Valero.
Q. Okay.
A. And we go to the jobsite, get our permits. From that, go look at the jobsite, see what the safety requirements, especially in a[n] alky[10 ], is.
Broussard (USI’s safety coordinator) explained that Valero issued thé work orders and permits and USI was required to return them to Valero once USI finished the particular assignment:
Q. When somebody needs a scaffold ■ erected, does [USI] create papér-work?
A. No, ma’am, not that I know of.
Q. Someone had mentioned a work order. You-all had work orders for scaffolds?
A. Yes. I think we had work—yeah, we had work orders.
Q. Is that a document that [USI] would keep once the scaffolding was-done?
A. I believe Bob [Travis] said we keep them for a while, and then he would get rid' of them. But I believe they had to be turned in, too. All that had to be turned back in.
Q. To who?
A- Valero.
Q. What about the permits for scaffold- . ing? Was- that something that you-all would keep?
A. No, ma’am.
Q. Why is that?
A. We have to turn them back" in to operations so they can put them in a file, .
Q. And operations, who is that?
A. Valero or—yeah, Valero.
And Levine testified that even Valero’s own' employees had to check in with Vale-ro’s “operations” office and have a “head operator” take them to a particular jobsite, especially an alkylation unit like the one he was working on when he was injured:
Q. When you get to the jobsite, what do you do, sir?
A. Over there that’s a dangerous unit. Like I say, you have to‘be specially . trained to work on the alkylation unit because that hydrochloric acid . is nothing to play with. It will "eat you all the way to the bone. You can see the smoke coming out. So, you have to check, in with operations.
Q. After you check in with operations, what do you do?
A. You talk with the operators about the job. They explain what type of suit you have to wear to do the job with; and then once they explain that information and make, sure you understand it, you have to do a walkthrough with operations on' the unit. The’ head operаtor takes you out there on the jobsite. And you have to make sure everything is locked, tagged out, and ready to go. If it’s not ready to go, you don’t work.
In light of this testimony, the Court misstates the evidence when it asserts that USI retained control or a right to control a scaffold even if Valero did not send a work order, and that in the absence of a work
4. Right to control at the time of the accident
Lastly, the Court misstates the evidence when it asserts that USI “retained control over the scaffold from construction through dismantling.” Id. at 478-79. According to the evidence, USI had no right or obligation to inspect a previously constructed scaffold at the Valero plant unless Valero submitted a work order and granted a permit requiring or allowing USI to assert control over a particular scaffold. The evidence is undisputed that Valero did not submit a work order or grant a permit for USI to inspect the scaffold on which Levine was injured. Certainly, at least, the evidence does not conclusively establish that USI had control or a right to control the scaffold at the time of Levine’s accident.
D. The conclusion
Levine’s petition asserted liability based on “negligence.” It never alleged USI had control of or a right to.control the scaffold at the time of the accident, and none of the alleged specific negligent acts necessarily required USI to have such control. The evidence establishes that USI did not have control of the scaffold at the time of the accident because Yalero had not notified USI that it intended to use the scaffold and had not requested or authorized USI to access or inspect the scaffold since USI finished building it at least a week before the accident. Because at least some evidence establishes that USI did not control or have a right or duty tо control fhe scaffold when the accident occurred, the-evidence does not conclusively establish the contrary. As a result, both the allegations and the evidence support the ordinary-negligence question the trial court submitted, and the .question was not erroneous. • .
II.
Waiver and Invited Error
The great irony in this case is that the parties undeniably tried the case as an ordinary-negligence case—twice—and did so without any objection from either party. Levine’s theory “was that USI negligently constructed the- scaffold by failing to nail a piece of plywood into place on the platform. In support of that theory, he got Broussard (USI’s safety coordinator) to admit that the plywood “should have been nailed down” and that “there is no excuse for that plywood not to be nailed down.’* He then got Benoit .(USI’s supervisor) to admit that, even though he was the “competent person” in charge of the team that constructed the scaffold, he did not know at that time about USI’s written policy requiring them “to nail down the plywood.”
USI. also tried the case as an ordinary-negligence case, without ever objecting to that liability theory. In defense of Levine’s claim, USI argued it could not have been negligent because it was not present ¡at the refinery on the day of the accident and it had no obligation to inspect the scaffold because Valero did not notify USI that it intended to use the scaffold and did not request an inspection. In its opening statement, USI asserted that if “Valero or a contractor. needs a scaffold, they call
Regardless of the parties’ shifting arguments, the important fact is that both parties tried the case, without any objection, as an ordinary-negligence cáse. At the first trial, USI itself proposed the ordinary-nеgligence question. After the trial court granted a new trial, the parties tried the case again. At the second trial, the court submitted the same jury charge with the same ordinary-negligence question USI had proposed at the first trial. Although the record does not reveal which party (if any) actually submitted or requested the same charge at the second trial, the record reflects (and USI agrees) that USI did not withdraw or object to the submission' of the same ordinary-negligence question it had proposed at the first trial.
Levine argues that, even if his claim could sound only in premises liability,' USI waived any complaint about the jury charge by failing to object to the submission of the ordinary-negligence question at trial. The Court recognizes that our rules require a defendant to object to a defective submission of a theory of recovery to preserve error, see Tex. R. Civ. P. 279, but holds that Rule 279 is irrelevant here because “the correct theory of recovery was omitted entirely.” Ante at 481. I disagree. Although a premises-liability claim is independent from an ordinary-negligence claim, it is still rooted in negligence principles. We have held, and the Court specifically notes, see id. at 635-36, that a plaintiff may submit a premises-liability claim by submitting a question on control and “a broad-form negligence question,” as long as “instructions that incorporate the ... premises defect elements ... accompany the questions.” Olivo,
The jury charge here included a broad-form negligence question but lacked a question on control and instructions on the premises-liability elements. According to the Court’s own rule, this is merely a defective submission, not a complete omission. See ante at’ 480 (“[T]his case was submitted to the jury under only a general-negligence theory of recovery, mtkout the elements of premises liability as instructions or definitions.... ” (emphasis added)) (citing Olivo,
Contrary to the Court’s assertion, USI’s burden to object to a defective chаrge is neither a “new rule” nor an affirmative defense. Ante at 470 n.1. Parties have had the guidance of Rule 279 since 1940. And no evidentiary burden (as would be required of an affirmative defense) underlies the procedural preservation burden Rule 279 imposes. See, e.g., Serv. Corp. Int’l v. Guerra,
III.
Conclusion
The Court misstates the standard of review, the pleadings, and the evidence. Levine asserted an ordinary-negligence claim and pleaded facts supporting that claim. At least some evidence established that USI did not have control of the scaffold at the time of Levine’s accident, and the evidence certainly did not conclusively establish that USI had such control. Because the allegations and evidence do not conclusively establish that USI had control of the premises at the time of the accident, I cannot say that, as a matter of law, the ordinary-negligence question was erroneous. Under Texas law, the proper claim against a contractor who negligently creates a dangerous condition on another’s land and then relinquishes control of the premises before any injury occurs is a claim for ordinary negligence. And even if all of that were incorrect, USI invited the alleged error and waived its complaint. I would hold that Levine is entitled to recover on the jury’s finding that USI negligently caused Lev-in’s injuries.
. When the parties first tried the case, the jury awarded $178,000, which seems much less surprising for that kind of injury. See, e.g., Hospadales v. McCoy,
. See also Wilson v. Tex. Parks & Wildlife Dep’t,
. What was disputed in Olivo (and is not at issue here) was "what duty, if any,” the "contractor in control" of the premises owed to an "employee of an independent contractor.”
When, as in Olivo, the dangerous condition ”aris[es] out of the independent contractor’s work,” the general contractor who controls the premises only owes a duty to the independent contractor’s employee if the general contractor retained “supervisory control” over the independent contractor's work and that control ”relate[d] to the condition or activity that caused the injury.” Id. at 528. The controlling factor in Olivo was whether the contractor had a "right to control the [independent contractor’s] defect-producing work,” id. at 529; the fact that the contractor controlled the premises where and when the injury occurred—and thus owed premises-liability duties—was simply undisputed. Because it was undisputed that the contractor controlled the premises where and when the injury, occurred and that the employee’s injury resulted from a dangerous condition on the premises, his claim was necessarily a premises-liability claim. And because the independent contractor created the dangerous condition, the plaintiff had to рrove that the contractor controlled the independent contractor's work. Id.
I do not, as the Court asserts, suggest that Olivo should be overruled. Ante at 470 n.l, Because Levine was not USI's subcontractor's employee and Levine's employer did not create the dangerous condition, the Olivo issue of whether USI controlled the “defect-producing work” is simply irrelevant here. Olivo did not involve the issue of whether the pleadings and evidence conclusively established that the contractor occupied and controlled the premises at the time of the injury; it was simply undisputed that it did. We said in Olivo that the trial court was .required to "submit the [premises-liability] elements in a premises de-
. If a claim results from a premises defect that a contractor created but the contractor relinquished control of the premises before any injury occurred, the contractor may be liable for ordinary negligence for creating the defective condition, but cannot be liable under premises liability. See infra n.9. Control "on the date in question” is "the essential element” of a premises-liability claim. Lefmark,
. It is not clear to me whether the 'Court intends to say that a fair reading of Levine's petition requires the conclusion that he necessarily alleged (among other allegations) that USI retained control of the scaffold at the time of the accident, or whether the Court intends to say that a fair reading of the petition requires the conclusion that he necessarily only alleged that USI retained such control. If the former, then the Court’s assertion does not support the Court’s conclusion. See Tex. R. Civ. P. 278; Rodriguez,
. Specifically, the petition alleged that USI was negligent in;
• "failing to adequately determine dangerous conditions created;”
• "failing to adequately warn [Levine] of measures to protect ■ himself from harm;”
• "failing to adequately inspect the scaffolding;”
• "expressly implying the scaffolding was safe for its intended purposes;”
• “failing to correct the dangerous condition which existed with the scaffolding;”
• "failing to maintain the scaffolding in a proper and safe work condition;”
• "failing to secure the scaffolding in a proper and safe work condition;”
• “failing to warn [Levine] that a dangerous condition existed which required extra care to be taken by him while working on the scaffolding;”
• “failing to рroperly train its employees in recognition of hazards;”
• "failing to promulgate safety practices and administer a proper safety program designed to prevent this type of injury;”
• "failing tec provide [Levine] with a safe working environment;”
• "failing to enforce proper safety codes, rules, standards and practices;”
• ‘ 'failing to properly instruct; ’'
• "failing to properly supervise;” and
• "failing to ensure the safety of the workers attempting to use the scaffolding.”
All of these allegations assert actions or inac-tions that USI could have committed before it ever built the scaffold (i.e., failure to train, instruct, supervise, promulgate safety practices, etc.), when it built the scaffold (i.e., failure to warn, correct, enforce safety codes, etc.), or right after it finished building the scaffold, at least a week before Levine’s accident (i.e., failure to inspect, correct, maintain, etc,).
. Specifically, the petition alleged that USI was negligent in;
• "improperly assembling, erecting and/or securing the scaffolding;”
• "failing to provide sufficient training and instruction to its agents, servants, employees and/or representatives on the proper erection and use of the scaffolding;”
• "failing to provide sufficient training,, warnings and instruction to its agents, servants, employees and/or representatives on the proper assembly, erecting and securing of the scaffolding;”
• “failing to erect the scaffolding in compliance with minimum OSHA standards;” and
• ."erecting a scaffolding in violation of Defendant(s) own company policies."
. See, e.g., Sampson,
. A claim against a contractor who created a dangerous condition but then relinquished control of the premises before any injury occurred is necessarily based not on a premises-liability duty to warn about or remedy a dangerous condition, but on "a duty in negligence to use reasonable care not to create the dangerous condition in the first place.” Occidental,
. An "alky” unit is the area of the refinery where Levine was injured. Valero substantially restricted "access to the alkylation units and required all workers in those units to have special qualifications and wear special protective gear because of the high risk of exposure to dangerous acid.
. USI raises a second issue on appeal, asking whether a trial court’s order granting a new trial is reviewable on appeal after the new trial. I would proceed to answer that question, which the Court does not reach.