Barham v. Turner Const. Co. of Texas, 05-90-00048-CV

• Decision Date: 11 December 1990
• Docket Number: No. 05-90-00048-CV,05-90-00048-CV
• Citation: 803 S.W.2d 731
• Parties: George Russell BARHAM and United States Fire Insurance Company, Appellants, v. TURNER CONSTRUCTION COMPANY OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 731

803 S.W.2d 731

George Russell BARHAM and United States Fire Insurance Company, Appellants, v. TURNER CONSTRUCTION COMPANY OF TEXAS, Appellee.

No. 05-90-00048-CV.

Court of Appeals of Texas Dallas.

Dec. 11, 1990.

Rehearing Denied Jan. 28, 1991.

Michael A. Robertson, Grand Prairie, for appellants.

Mickie S. Fleetwood, Dallas, for appellee.

Before STEWART, OVARD and BURNETT, JJ.

OPINION

STEWART, Justice.

George Russell Barham and United States Fire Insurance Company (Insurance Company) ¹ appeal from a take nothing judgment in favor of Turner Construction Company of Texas (Turner Construction) in Barham's suit for damages arising from a construction accident. Barham and Insurance Company assert seven points of error on appeal. In their first five points, Barham and Insurance Company contend that the trial court erred in: (1) submitting a definition of negligence which excluded consideration by the jury of the negligence of Turner Construction, the general contractor, in failing to furnish safe materials, to provide a safe place to work, and to inspect; (2) submitting a definition of negligence which limited the jury to consideration of the work performed by Crane Safety and Maintenance, Inc. because it was an impermissible comment on the weight of the evidence; (3) refusing to submit the theory of product liability; (4) admitting photographs of Barham taken by Turner Construction's investigator because they were procured by fraud and misrepresentation on the part of said investigator in violation of Disciplinary Rule 7-104; and (5) failing to grant Barham's motion for mistrial based on the admission of the allegedly improperly obtained photographs. In points six and seven, Barham and Insurance Company argue that the answer of the jury to question 3 (point six) and to questions 1(a) and 2(a) (point seven) are so against the great weight and preponderance of the evidence as to be manifestly unjust. We disagree. Accordingly, we affirm the trial court's judgment.

FACTUAL BACKGROUND

Turner Construction, as the general contractor, hired Crane Safety and Maintenance, Inc. (Crane Safety), as a subcontractor, to erect steel columns at the Coit Central Tower project. Barham was foreman of the Crane Safety crew. While the crew was erecting one of four forty-foot steel columns, a steel erection plate, ² which was wired to the top of the column, fell and struck Barham's head, which was covered by a hardhat. Barham sued Turner Construction and Southern Industrial Steel Company (SISCO), fabricator of the steel column, alleging causes of action for negligence and strict product liability. Barham alleged damages which included inability to work at his occupation as an iron worker after the accident, permanent loss of earning capacity, pain and suffering, mental anguish, and loss of physical capacity. The jury found that Barham's injuries were not proximately caused by the negligence of Turner Construction, but were proximately caused by the negligence of Barham and SISCO, and attributed fifty percent of the negligence to each. SISCO settled with Barham and was dismissed from the suit. This appeal involves only the take nothing judgment in favor of Turner Construction.

DEFINITION OF NEGLIGENCE

In the first point, Barham and Insurance Company contend that the trial court erred in submitting a definition of negligence which excluded consideration by the jury of the negligence of Turner Construction, the general contractor, in failing to furnish safe materials, to furnish a safe workplace, and to inspect. They argue that the trial court incorrectly defined negligence to limit the jury to consideration of the work performed by Crane Safety, thereby failing to submit the question of Turner Construction's negligence in the performance of its duties to Crane Safety's employees. Barham and Insurance Company further argue that Turner Construction's duty to furnish a safe workplace and to inspect did not depend upon Turner Construction's right to control Crane Safety's work. Turner Construction acknowledges that it had certain duties to Crane Safety's employees, but asserts that Barham and Insurance Company fail to recognize the parameters of a general contractor's duty to its subcontractors and that the instructions submitted by the trial court to the jury accurately reflected Turner Construction's duties as a general contractor under the facts of this case.

The trial court submitted the following definition of negligence to the jury: " 'Negligence' with regard to [Turner Construction] means the failure to use ordinary care in the exercise of its control, if any, over the details of the work performed by [Crane Safety]." Barham objected and requested the following definition:

"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

Additionally, Barham requested the following issues on Turner Construction's right to and exercise of control over Crane Safety's work:

Did [Turner Construction] have a right to control any of the details of the work of erecting the column in question?

Did [Turner Construction] actually exercise any control over the details of the work of erecting the column in question?

The trial court refused to submit Barham's requested issues.

The trial court must submit explanatory instructions and definitions that will enable the jury to render a verdict and must explain any legal or technical terms. Tex.R.Civ.P. 277. The trial court has considerable discretion in deciding which instructions are necessary and proper when submitting issues to the jury. Clancy v. Zale Corp., 705 S.W.2d 820, 825 (Tex.App.--Dallas 1986, writ ref'd n.r.e.); K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632, 637 (Tex.App.--Houston [1st Dist.] 1984), writ ref'd n.r.e. per curiam, 686 S.W.2d 593 (Tex.1985). In determining whether there has been an abuse of discretion, this Court may not substitute its judgment for that of the trial court, but must determine only whether the trial court's action was arbitrary or unreasonable. K-Mart Corp. Store No. 7441, 677 S.W.2d at 636. Error in a jury charge supports reversal only if it comprises such a denial of the rights of the complaining party as was reasonably calculated to and probably did cause the rendition of an improper judgment. Island Recreation Dev. v. Republic of Texas Sav., 710 S.W.2d 551, 555 (Tex.1986).

The essential elements of actionable negligence are a legal duty owed by one person to another, a breach of that duty, and damages proximately resulting from such breach. Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984). The plaintiff has the burden of establishing each of these elements. Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64, 65 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.). The existence of a legal duty under a given statement of facts is essentially a question of law for the court. Id.; see Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976).

In this case, the issues to be submitted to the jury depend upon the scope of Turner Construction's duty as a general contractor. The relevant inquiry in examining the trial court's charge is whether, under the facts of this case, Turner Construction had any duty to Barham that was not encompassed within the trial court's charge.

An owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition. Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). A general contractor who is in control of the premises is charged with the same duty as an owner or occupier. Agricultural Warehouse, Inc. v. Uvalle, 759 S.W.2d 691, 694 (Tex.App.--Dallas 1988), writ denied per curiam, 779 S.W.2d 68 (Tex.1989). A general contractor on a construction site has the duty to use due care to provide a safe place for workmen on the premises, including the employees of other contractors. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (1950). This duty may include the duty to inspect the premises to discover dangerous conditions. Id. There are two distinct lines of cases. First, there are those cases in which the dangerous condition existed on the premises at the time of the subcontractor's entry or in which the dangerous condition was created by someone or through some means unrelated to the activity of the injured employee or his employer. Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex.1973). In these cases, the subcontractor has no duty to inspect the premises for concealed dangers and may rely as a matter of law on the general contractor to discharge his duty to inspect the premises and to warn of any dangerous condition. Zamborowske v. OES, Inc., 731 S.W.2d 614, 616 (Tex.App.--Houston [1st Dist.] 1987, no writ). Thus, the duty to provide a safe workplace imposes liability upon a general contractor for injuries caused by defective or dangerous conditions existing on the premises at the time the subcontractor enters the property. Shell Chem. Co., 493 S.W.2d at 746. Second, there are those cases in which the dangerous condition arose out of the performance of the work for which the subcontractor was employed. Id. A general contractor generally is not liable for injuries resulting from the work or activity of an independent contractor where the danger arises from the independent contractor's performance of its task. Id. Further, a general contractor does not have a duty to see that an independent contractor performs its work in a safe manner, Abalos, 544 S.W.2d at 631, and can assume that an independent contractor will take proper care and precautions to assure the safety of its own employees. Agricultural Warehouse Inc., 759 S.W.2d at 695.

There is a distinction between those dangers inherent in the work of an independent contractor,...