Rourke v. Garza

• Decision Date: 09 May 1974
• Docket Number: No. 16226,16226
• Citation: 511 S.W.2d 331
• Parties: Elzie Pauline ROURKE, Indv., etc., Appellant, v. Adolph O. GARZA et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 331

511 S.W.2d 331

Elzie Pauline ROURKE, Indv., etc., Appellant, v. Adolph O. GARZA et al., Appellees.

No. 16226.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

May 9, 1974.

Rehearing Denied June 20, 1974.

Mills, Shirley, McMicken & Eckel, Preston Shirley, Galveston, for appellant.

Kronzer, Abraham & Watkins, W. James Kronzer, John B. Murphrey, Nick C. Nichols, Houston, R. A. Apffel, Galveston, for appellee Adolph O. Garza.

McLeod, Alexander, Powel & Apffel; V. W. McLeod, James L. Anthony, Galveston, for appellee Har-Con Engineering, Inc. COLEMAN, Chief Justice.

This is a products liability case resulting from an industrial accident. Appellee, Adolph O. Garza, a pipefitter-welder employed by Har-Con Engineering Company, Inc., brought this suit against J. E . Rourke, Individually and d/b/a J. E. Rourke Rental & Supplies, for personal injuries sustained in a fall from scaffolding which had been supplied by Rourke to Har-Con at Har-Con's job site in Galveston, Texas. Rourke impleaded Har-Con, alleging written indamnity. The trial court entered judgment on the jury's verdict in favor of Garza against Rourke in the amount of $303,126.42, of which amount Travelers Insurance Company, the compensation carrier for Har-Con, was awarded $35,326.42. The trial court denied Rourke's plea of indemnity against Har-Con.

Appellee Garza charged that Rourke supplied 'defective' scaffold boards to Har-Con's job site because the boards did not have cleat type devices attached to the boards to prevent their slipping on the pipe frames. These cleats are 2 4 boards, nailed to the underside on each end of the boards, which act as chocks to prevent longitudinal movement of the boards.

In May, 1965, Har-Con, a Houston based construction firm, was engaged in several construction jobs in Galveston, Texas, including the work at Sam Houston School where the accident occurred. Har-Con specialized in mechanical work such as plumbing, air conditioning, heating and ventilating. Rourke had been in the business of renting scaffolds and scaffolding materials for about fifteen years prior to the accident and had rented such equipment to Har-Con on a number of different occasions prior to this incident. Rourke would customarily deliver the scaffold pipe frames and boards and related equipment to the job site and Har-Con would then assemble it. On occasion Har-Con would move the scaffolding from one job site to another. On this particular occasion, Rourke's delivery man, Myer, delivered and unloaded the scaffold pipe frames, boards and connecting pins at the job site at the Sam Houston School. Myer took the equipment off the truck, left it on the ground and called Har-Con's superintendent, Fred Newton, over to check the delivery. Newton counted the materials and signed a receipt for Myer which recited that the equipment had been delivered in good order. The scaffolding being used on this particular job consisted of steel pipe framing across which were laid 2 10 inch boards eight feet in length which formed the platform. The delivery receipt shows that four eight-foot 2 10 boards were delivered to the job site. Har-Con's foreman, Hawkins, and several other Har-Con employees actually assembled and erected the scaffolding.

Garza saw the scaffolding materials when they were delivered by Myer and while they were being erected by the Har-Con's employees but took no actual part in the unloading, checking or assembly of the scaffold. Garza climbed to the top of the scaffolding platform and had been working there about an hour and a half prior to the accident. Garza testified that immediately prior to the accident, he had finished making a weld and had stepped aside so that his fitter could scrape the weld; that he then fell when the scaffolding slipped. Garza's recollection was that two inside boards slipped and that he fell down into the center of the scaffolding.

Joe Rourke, who had started the rental business, died prior to the trial and his wife continued to manage the business after his death. The only other employee of the business was Myer, the delivery man, who had delivered scaffolds and the scaffolding materials for Rourke for about 15 years. Myer's testimony was that Rourke never used cleats on the boards and rented the boards as they were and if the customer wanted cleats the customer could put them on himself. He testified that if Rourke put cleats on there would be an extra charge but that Rourke never put them on. He said that he considered the cleats 'stumbling blocks' and that when boards were returned with cleats on them he just knocked them off with a hammer. He said Har-Con had never asked for cleats and that he did not recall even having put any cleats on any boards. He said he had never had a board slip though he had never given it a thought as to whether they would slip; that no cleats had been put on the boards he delivered to the Har-Con site and that he delivered 'just plain old boards' to lay across the pipe. He said he knew the boards and materials were going to be used for scaffolding and that sometime after the accident occurred he picked up the scaffolding, unassembled, from a different site then the Sam Houston School job and had never heard about Garza's accident until about three weeks before his deposition.

Har-Con's president, Harry Conley, testified that based on his expreience he thought that a scaffold board without cleats would be unsafe because the wood would shift on the scaffold and that he expected Rourke to supply boards reasonably fit for their use as scaffolding. He said it was customary for the boards to come with cleats and that without cleats they would not be reasonably fit for scaffolding boards and would be dangerous.

Fred Newton, Har-Con's superintendent, testified that sometimes some of the employees they used on jobs, particularly with respect to erecting scaffolding, were not so skilled in the work that they could put a scaffolding structure together satisfactorily. He said it was the custom in Galveston for suppliers to furnish cleats on the scaffolding boards and that he would depend on Rourke to give them boards with cleats and that his employees did not have the time to inspect the structure every time they climbed up and down the scaffolding. He said his pipe fitters usually assembled the scaffolding as they claimed it was their job to do so and that they had no personnel or equipment to put the cleats on the boards.

Another Har-Con employee, Lloyd Chris, Jr., testified that he believed he had helped put the scaffolding together and that he had looked at the boards after Garza had fallen. He said according to his recollection the board on the inside had no cleats on it and that two of the scaffolding boards had cleats and two did not.

The basic issues submitted and the jury's findings with respect to the question of Rourke's liability are as follows:

SPECIAL ISSUE NO. 1.

'Do you find from a preponderance of the evidence that failure to have cleat type devices on the scaffold boards delivered by the Defendant, Rourke Rental, on May 27, 1965, rendered the scaffold boards defective as herein defined?

'You are instructed that a product is 'defective' as that term is used in the above Special Issue, if the product exposes its user to an unreasonable risk of harm when used for the purpose for which it was intended.

'By the term 'unreasonable risk of harm', as used in the above and foregoing instruction is meant that the article leased must be dangerous to an extent beyond that which would be contemplated by the ordinary user who leases it, with the ordinary knowledge common to the community as to its characteristics.

'ANSWER: 'We do'.

'If you have answered Special Issue No. 1 'We do', and only in that event, then answer:

SPECIAL ISSUE NO. 2.

'Do you find from a preponderance of the evidence that Defendant ROURKE RENTAL could reasonably anticipate that the scaffold boards delivered on May 27, 1965, might be placed upon the scaffold frame without the addition of cleat type devices?

'ANSWER: 'We do'

'If you have answered Special Issue No. 1 'We do', and only in that event, then answer:

SPECIAL ISSUE NO. 3

'Do you find from a preponderance of the evidence that the failure to have cleat type devices on the scaffold boards was a producing cause of the occurrence in question?

'In connection with the foregoing Special Issue, you are instructed that the term 'producing cause' means an efficient, exciting, or contributing cause, which, in a natural sequence, produced injuries or damages complained of, if any. There can be more than one producing cause.

'ANSWER: 'We do'

SPECIAL ISSUE NO. 4

'Do you find from a preponderance of the evidence that Defendant ROURKE RENTAL'S failure to provide cleat type devices on the scaffolding boards in question constituted negligence as that term is herein defined?

'ANSWER: 'We do not"

In nineteen consolidated points of error appellant Rourke asserts that at the time of delivery of the scaffolding boards, they were not defective; that the theory of strict liability is not applicable to the renting or leasing of equipment to a large industrial user; that the jury having failed to find negligence, there was no basis for strict liability; that the condition of the boards was open and obvious and the absence of cleats could not have constituted a latent defect; that the erection of the scaffolding by Har-Con's employees with knowledge of the absence of the cleats constituted an intervening cause negating strict liability; that any dangerous condition in connection with the boards arose solely from the actions of the Har-Con's employees in erecting the scaffolding; that the trial court erred in refusing appellant's requested special issues as to new and intervening cause, or as to sole cause as asserted with respect to Har-Con's employees; that the trial court erred in refusing appellant's requested special issues raising the question of the open and...