City of Houston v. Howard

• Decision Date: 18 January 1990
• Docket Number: No. B14-88-818-CV,B14-88-818-CV
• Citation: 786 S.W.2d 391
• Court: Texas Court of Appeals
• Parties: CITY OF HOUSTON, Appellant, v. G. Lynwood HOWARD, Appellee. (14th Dist.)

Page 391

786 S.W.2d 391

CITY OF HOUSTON, Appellant, v. G. Lynwood HOWARD, Appellee.

No. B14-88-818-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 18, 1990.

Rehearing Denied March 8, 1990.

Robert L. Cambrice, Houston, for appellant.

Van Gardner, Randall D. Wilkins, Houston, for appellee.

Before MURPHY, ROBERTSON and SEARS, JJ.

OPINION

SEARS, Justice.

G. Lynwood Howard, appellee, sued the City of Houston for personal injuries sustained when he fell off a ladder at Sam Houston Coliseum. After a jury trial, the trial court awarded Howard $316,526.53 in damages. The city appeals claiming, in seventeen points of error, that the issue inquiring about the city's negligence was not supported by sufficient pleadings or proof, that the evidence was legally and factually insufficient to support the jury's findings of proximate cause and damages, and that the jury's failure to find contributory negligence was against the great weight and preponderance of the evidence. We affirm.

On September 8, 1984, Lynwood Howard was raising a curtain at the Sam Houston Coliseum to prepare for a show sponsored by KYOK radio. To raise the curtain, Howard stood on a six foot ladder and used a winch-type device called a "come-along." When the curtain was raised approximately six to eight feet, the come-along broke and Howard fell to the floor, injuring his back. Howard subsequently filed suit against the city alleging it failed to provide a safe working environment, failed to supply reasonably safe equipment, failed to inspect or maintain the come-along, failed to warn of any defect in the come-along and failed to instruct Howard how to use the come-along. The jury found that the city's negligence proximately caused Howard's injury.

In its first and seventh points of error the city claims the pleadings and the evidence do not support the submission of issue number one. Issue number one inquired whether the city was negligent in failing to maintain or inspect the come-along, in failing to have a maintenance program regarding the come-along, and in failing to provide Howard with a safe come-along or warn of any defect in the come-along provided by the city for use in moving the curtain.

The city first argues that Howard did not plead any legal principle that imposed a duty on the city to perform those acts described in issue number one. A petition is sufficient if it gives fair and adequate notice of the facts on which the pleader bases his claim. TEX.R.CIV.P. 45. The purpose of the fair notice requirement is to give the opponent information sufficient to prepare his defense. Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex.1982).

A pleading may fail to give fair notice because of ambiguous language which does not clearly convey the pleader's contentions, or because its allegations, though clearly expressed, may mislead the opponent concerning the theory on which the pleader proposes to rely. 2 MCDONALD, TEXAS CIVIL PRACTICE pp. 14-16 (Rev.1970). In determining whether the pleadings give fair notice, we will consider first, the intent of the rules to eliminate technicality and to simplify pleading; and second, the impossibility of a fair trial unless both parties are aware of the basic controversy to be settled. The test of fair notice is whether an opposing attorney of reasonable competence, with the pleadings before him, can determine the nature of the controversy and the testimony probably relevant. Schley v. Structural Metals, Inc., 595 S.W.2d 572, 587 (Tex.Civ.App.--Waco 1979, writ ref'd n.r.e.). Also, the city did not except to Howard's pleading. In the absence of a special exception, the trial court will construe the pleading in the pleader's favor. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex.1977).

Howard's pleading centers on a dangerous condition allegedly created and maintained by the city by its failure to inspect and maintain the come-along and its failure to provide Howard a safe workplace or warn him of any potential defects in the come-along. Howard alleged the city was negligent in its failure to perform those acts. Any reasonable attorney is charged with knowledge that the elements of a negligence cause of action are duty, breach of duty, proximate cause and damage. See Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984). Because, in this case, the existence of a duty owed by the city depended on whether the city maintained control over the union workers, the city's attorney was adequately and fairly put on notice that he would have to prepare a defense on the control issue. The pleadings support the submission of issue number one.

The city also asserts that the evidence was legally insufficient to support the submission of issue number one. In determining a no evidence point, we are to consider only the evidence and inferences that tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See Sherman v. First National Bank, 760 S.W.2d 240 (Tex.1988). If there is any evidence of probative force to support the finding of the jury, we must overrule the point and uphold the finding. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).

Where the activity is under the control of the contractor and the danger arises out of the employee's performance of the task, the responsibility for performing or conducting a task in a safe manner rests with the contractor, and not the premises owner. Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976). However, the premises owner may be liable when he retains the right to control some part of the independent contractor's work, but fails to exercise the retained control with reasonable care. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). Control, or the right to control, must rest with the landowner for the injured party to recover. Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987).

At trial, Bill Flanigan, the house stagehand at Sam Houston Coliseum, testified that he considered the part-time employees who came in through the union to be working under him at the coliseum. That is some evidence that the city retained the right of control over the workplace.

Further, the court submitted no issue on the extent of the city's control over the workplace. When some, but not all, of a cluster of issues necessary to sustain a ground of recovery are given and answered by the jury, without objection or request, the trial court may make written findings on omitted issues raised by the evidence. TEX.R.CIV.P. 279. If no written findings are made, the omitted issues are deemed to have been found by the court in such a manner to support the judgment. Harmes v. Arklatex Corp., 615 S.W.2d 177, 179 (Tex.1981). Since there are no findings of fact by the court in this case, the court is deemed to have found that the city exercised some control over the workplace. See Phelan v. Lopez, 701 S.W.2d 327, 331 (Tex.App.--Beaumont 1985, writ dism'd by agr.).

We also find sufficient evidence to support the jury's finding of negligence. Mr. Kenneth Ashworth, event coordinator for the coliseum, testified that he told Flanigan exactly what equipment the stagehands would use. Flanigan testified that he had worked at the coliseum for fifteen years. He testified the come-along was there when he first came to work for the city and that he had never inspected the come-along to see if the safety pin was in place. Further, the city never established an inspection or maintenance program for any of the winches at the coliseum. We find that this evidence, when considered with the other evidence in the case, is sufficient to support a finding of negligence. Points of error one and...