Brookshire Brothers, Inc. v. Lewis

• Decision Date: 26 August 1999
• Citation: 997 S.W.2d 908
• Parties: (Tex.App.-Beaumont 1999) BROOKSHIRE BROTHERS, INC., Appellant v. CARL DEAN LEWIS, Appellee NO. 09-97-295 CV
• Court: Texas Court of Appeals

Page 908

997 S.W.2d 908 (Tex.App.-Beaumont 1999)

BROOKSHIRE BROTHERS, INC., Appellant v. CARL DEAN LEWIS, Appellee

NO. 09-97-295 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted February 18, 1999

Decided August 26, 1999

On Appeal from the 221st District Court Montgomery County, Texas, Trial Cause No. 93-08-02192-CV

[Copyrighted Material Omitted]

Before Walker, C.J., Burgess, and Stover, JJ.

OPINION

Stover, Justice

Carl Dean Lewis ("Lewis") sued his employer, Brookshire Brothers, Inc. ("Brookshire"), for injuries he sustained while working in the meat department of one of Brookshire's grocery stores. Trial was to a jury, and damages in the sum of $300,000 were awarded. Judgment was rendered by the trial court in favor of Lewis. Brookshire brings ten points of error on appeal. We will affirm.

Lewis began working for Brookshire in 1984. He was initially hired as a meat cutter and was later promoted to the position of head meat cutter and meat market manager. On July 9, 1990, while at work, he injured his back by lifting a sausage case. The injury consisted of a herniated disc requiring back surgery. On October 8, 1990, following his recovery from surgery, Lewis returned to work on light duty status. On June 10, 1991, he was given a release to return to full duty.

Shortly after being released to full duty, Lewis suffered a second back injury while putting meat into a meat grinder.¹ Lewis testified that on that day, Brookshire was having a sale on ground beef. The meat department was short on staff, and Lewis testified the employees had "picked up an enormous amount of lugs because [the store] sold a lot of ground beef, a tremendous amount."² Because of the second injury, Lewis suffered from a herniated disc and had to have a second surgery on September 24, 1991.

In January of 1992, Lewis returned to work on a "pencil and paper" light duty restriction. In February of 1993, thirteen months after he had returned to work, Lewis was experiencing severe pain. He was told by his doctors that he would need a third surgery. After the surgery, following his doctor's advice, he did not return to work.

PROXIMATE CAUSE

We first consider points of error three, four, and five wherein Brookshire argues the evidence is legally and factually insufficient to support proximate causation.

Standard of Review

"In reviewing the evidence under a no-evidence point, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor." Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). The reviewing court is to determine whether the evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See id. at 286; Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex. 1998). The evidence presented, viewed in the light most favorable to the prevailing party, must permit the logical inference that the jury must reach. See CAT Contracting, 964 S.W.2d at 286.

In conducting a factual sufficiency review, an appeals court "must consider and weigh all of the evidence, not just that evidence which supports the verdict." Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert. denied, ____U.S.____, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)). The verdict can be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The court of appeals is not a fact finder. Accordingly, it may not pass upon the witnesses' credibility or substitute its judgment for that of the jury, even if the evidence clearly supports a different result. See Maritime Overseas, 971 S.W.2d at 407; Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986).

Analysis

Brookshire is a nonsubscriber under the Texas workers' compensation law. See TEX. LAB. CODE ANN. 406.001-406.165 (Vernon 1996 & Supp. 1999). Thus, it is responsible for work-related injuries under common law principles of negligence. See Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995). To establish negligence, a plaintiff must produce evidence to establish a duty, a breach of that duty, and damages proximately caused by the breach. See id. at 869.

Although an employer is not an insurer of its employees' safety, the employer does have a duty to use ordinary care in providing a safe work place. See Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Werner, 909 S.W.2d at 869. This duty is non-delegable and encompasses a duty to provide rules and regulations for the safety of employees, to furnish safe machinery and instrumentalities, and to select careful and competent fellow servants. See Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex. 1981); Kroger Co. v. Keng, 976 S.W.2d 882, 885 (Tex. App.--Tyler 1998, pet. filed); Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex. App.--Texarkana 1996, writ denied).

"Proximate cause consists of cause in fact and foreseeability." Leitch, 935 S.W.2d at 118 (citing Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975)). The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about the injury, without which the harm would not have occurred. See Prudential Ins. Co. of America v. Jefferson Assoc., Ltd., 896 S.W.2d 156, 161 (Tex. 1995); Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458-59 (Tex. 1992). Cause in fact is not shown if the party's negligence did no more than furnish a condition that made the injury possible. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (citing Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968)). "The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries . . . [and] justify the conclusion that such injury was the natural and probable result thereof." Id. (quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (Tex. 1939)). "In other words, even if the injury would not have happened but for the defendant's conduct, the connection between the defendant and the plaintiff's injuries simply may be too attenuated to constitute legal cause." Id.

"Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable." Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). The danger of injury is foreseeable if its "general character . . . might reasonably have been anticipated." See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 551 (Tex. 1985). "The foreseeability of a back injury in connection with regular lifting of heavy objects is judged by a reasonable person standard." Leitch, 935 S.W.2d at 119.

Causation

Brookshire argues there was no evidence to establish causation. Lewis testified he injured his back at work while he was dumping a lug of meat into a grinder. Dr. Arthur Evans, the surgeon who performed all three of Lewis' surgeries, testified that the history of heavy lifting was sufficient to make the correlation that Lewis injured his back at work. Timothy Kellerman, a meat cutter who worked with Lewis on a daily basis, was working with Lewis on the day of the second injury. He testified he was ten or fifteen feet away, "actually standing there watching [Lewis]." After lifting the lug, Lewis said to Kellerman, "Well, I blew my back out again . . . ." From Lewis' expression, Kellerman could tell Lewis was in pain.

An accident report, made after the second injury, shows that Lewis injured his back while at work. The report, which was signed by store manager Jerald Johnson, states the "[m]arket was short handed on accident date due to one man on vacation & one man quit that day without notice. [Lewis] had to work harder than usual & back became sore." The report additionally indicates the accident occurred by "lifting a lug of hamburger meat." In deposition testimony, Johnson again reported that Lewis was injured while grinding hamburger meat. Brookshire, in admissions read into the record at trial, admitted that Lewis' "back started hurting after picking up lugs of meat for the grinder."

Foreseeability

Adequate Staffing

As part of his negligence claim, Lewis alleged Brookshire did not have sufficient staffing in the meat department--an inadequacy which, Lewis claimed, was a cause of his injury and which made the injury foreseeable. In contrast, Brookshire contends Lewis' injury was not foreseeable because sufficient help was available, yet Lewis proceeded to do the work without asking for assistance. It additionally argues that it cannot be held liable for Lewis' injuries because Lewis was the manager of the meat department and held the responsibility of staffing and scheduling. See, e.g., Allsup's Convenience Stores, Inc. v. Warren, 934 S.W.2d 433 (Tex. App.--Amarillo 1996, writ denied) (where manager of store injured her back unloading packages from delivery truck, after worker who was scheduled to unload truck had failed to report to work, employer was not negligent because manager was solely responsible for scheduling).

An employer has "an obligation to provide adequate help under the circumstances for the performance of required work." Werner, 909 S.W.2d at 869. The employer is not liable, however, when help has been provided and an injury results from the actions of the employee who voluntarily proceeds to do the work without assistance. Western Union Tel. Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977, 979 (Tex. 1947). See, e.g. Fields v. Burlison Packing Co., 405 S.W.2d 105 (Tex. Civ. App.--Fort Worth 1966, writ ref'd n.r.e.) (employer not liable where worker voluntarily lifted tub of hamburger meat when help was available). Likewise, there can be no recovery on the theory that the number of employees was temporarily...