Dew v. Crown Derrick Erectors, Inc.
| Decision Date | 30 June 2006 |
| Docket Number | No. 03-1128.,03-1128. |
| Citation | 208 S.W.3d 448 |
| Parties | Sandy DEW, Individually and as Representative of the Estate of Paul Dew, Deceased, and Carl Dew and Doris Dew, Petitioners, v. CROWN DERRICK ERECTORS, INC., Respondent. |
| Court | Texas Supreme Court |
Richard P. Hogan, Jr., Jennifer Bruch Hogan, Pillsbury Winthrop Shaw Pittman, L.L.P., Peter M. Kelly, Moore & Kelly, P.C., Nick C. Nichols, Richard J. Plezia, Abraham Watkins Nichols Sorrels Matthew & Friend, Houston, William Powers, Jr., The University of Texas School of Law, Austin, Gilbert I. "Buddy" low, Orgain Bell & Tucker, L.L.P., Beaumont, for petitioners.
David W. Holman, The Holman Law Firm, P.C., Robert Alan York, Godwin Gruber, LLP, Willie Ben Daw, III, Kyle Douglas Giacco, Daw & Ray, P.C., Houston, for respondent.
Justice MEDINA delivered a plurality opinion, joined by Chief Justice JEFFERSON, Justice O'NEILL, and Justice WAINWRIGHT.
The issue in this wrongful death and survival action is whether the trial court erred in refusing to submit an inferential rebuttal instruction on "new and independent cause." A divided court of appeals reversed and remanded for new trial, concluding that the trial court had erred in failing to submit a new and independent cause instruction because the evidence raised the issue. 117 S.W.3d 526, 537. We do not agree that the evidence in this case required the submission of this additional instruction, therefore we reverse the court of appeals' judgment and remand for that court to consider the other issues raised in the appeal.1
Paul Dew fell to his death through an opening in an oil derrick platform. The derrick was under construction at the time of the accident, and the key dispute at trial concerned who was responsible for the inadequately protected hole left in the platform. The jury concluded that the derrick's owner, Rowan Companies, Inc., its designer, Woolslayer Companies, Inc., and its erector, Crown Derrick Erectors, Inc., were all responsible and apportioned fault among them.
The derrick is known as the Gorilla V, a multi-tiered offshore drilling rig designed by Woolslayer for use in the North Sea. It has working platforms set at varying heights, including a fourble2 platform set approximately eighty-eight feet up the derrick. Two openings in this platform allow for ladders that are required for such rigs. Woolslayer's design required safety gates to be erected around the ladder openings to prevent a person from falling through the opening.
Rowan hired Crown Derrick to erect the Gorilla V derrick from parts manufactured and supplied by Woolslayer, and construction began in March 1998. While assembling the ladders, Crown Derrick discovered that it did not have some of the necessary parts for installing the safety gates around one of the ladder openings in the fourble platform. Rowan's construction manager was told about the missing parts, and he notified Woolslayer.
By August 1998, Crown Derrick had virtually completed assembly of the derrick, but was still missing some parts for one of the safety gates. Crown Derrick left the job site on August 28 without having installed the safety gates around one opening on the fourble platform and the ladder for that opening. Before leaving, Crown Derrick placed two ropes around the otherwise unprotected and obviously dangerous opening. The ropes were tied across the platform's railing as a means to block the walkway and prevent a worker from simply walking into the opening unaware.
On September 22, 1998, Crown Derrick returned to complete its work, but a crane it needed to install the ladder was not working. Crown Derrick also asserts that it still did not have some parts for the safety gates and so nothing was accomplished that day. Apparently, no one with Crown Derrick ascended to the fourble platform to inspect the condition of the double-rope barricade it had left the month before to secure the opening. The next day, Paul Dew, an employee of one of Rowan's associated companies, was working on this platform and fell through the opening to his death.
The double-rope barricade was not maintained while Crown Derrick was away from the work site. At some point, an electrical junction box may have been used to cover the opening, and still later, a single-rope was used to guard the opening. No one actually witnessed the accident, and a dispute exists whether even the single-rope barricade was in place on the day Mr. Dew fell.
After the accident, Paul Dew's wife and parents sued Rowan, Woolslayer, and Crown Derrick. Their wrongful death and survival action was tried to a jury which found that the negligence of all three defendants contributed to cause Mr. Dew's death. The jury also awarded damages, apportioning responsibility as follows:
ROWAN COMPANIES, INC. 47%
WOOLSLAYER COMPANIES, INC. 30%
CROWN DERRICK ERECTORS 20%
PAUL DEW 3%
___
TOTAL 100%
The trial court rendered judgment on the verdict.
Only Crown Derrick appealed, complaining among other things that the trial court had erred in refusing to submit a jury instruction on new and independent cause. Agreeing that this instruction was necessary and its omission harmful, the court of appeals reversed the judgment against Crown Derrick and remanded the Dews' claims against it for a new trial. The court concluded that an instruction was needed because a fact question existed as to "whether any intervening act occurred, and was an unforeseeable new and independent cause." 117 S.W.3d at 537. One justice dissented, questioning whether there was any evidence upon which a reasonable jury could conclude that the intervening acts were unforeseeable, but also questioning whether any subsequent forces intervened to alter the consequences of Crown Derrick's original negligence. See 117 S.W.3d at 537 (Burgess, J. dissenting).
A new and independent cause is one that intervenes between the original wrong and the final injury such that the injury is attributed to the new cause rather than the first and more remote cause. Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506, 509 (1951); Phoenix Ref. Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60, 61 (1935). An intervening cause thus supersedes the defendant's negligence by destroying the causal connection between that negligence and the plaintiff's injury thereby relieving that defendant of liability. See generally 1 JAMES B. SALES AND J. HADLEY EDGAR, TEXAS TORTS AND REMEDIES § 1.04[4] (2005). It is one of a number of inferential rebuttal defenses that "operates to rebut an essential element of the plaintiff's case by proof of other facts." Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 430 (Tex.2005); see also COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES—GENERAL NEGLIGENCE & INTENTIONAL PERSONAL TORTS PJC 3.1-3.5 (2003) (inferential rebuttal instructions). The instruction's purpose is "to advise the jurors, in the appropriate case, that they do not have to place blame on a [particular defendant] to the suit" if the true cause for the accident lies elsewhere. Dillard, 157 S.W.3d at 432 (citing Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995)). The instruction is necessary when the evidence in the case raises a fact issue on new and independent cause. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 384 (1952); Young v. Massey, 101 S.W.2d 809, 810 (1937).
As in the court below, the parties here generally disagree about whether evidence supports the submission of this inferential rebuttal instruction. Specifically, they disagree about whether Rowan's or someone else's act in altering or removing the ropes was foreseeable and an intervening act that should supersede Crown Derrick's own negligence.
"Generally speaking, if the intervening force was foreseeable at the time of the defendant's negligence, the force is considered to be a `concurring cause' of the plaintiff's injuries," and "the defendant remains liable for the original negligence." SALES AND EDGAR § 1.04[4][b] at 1-55; see also J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 665 (Tex.App.-Fort Worth 1999, pet. denied) (). If, on the other hand, "the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act." Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 166, 169, 414 N.E.2d 666, 670 (1980). What generally distinguishes a superseding cause from one that merely concurs in the injury is that the intervening force was not only unforeseeable, but its consequences also unexpected:
[A] superseding cause is one that alters the natural sequence of events and produces results that would not otherwise have occurred. Or one that is "of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant." An intervening force will not break a causal connection if that force was itself probable or foreseeable by the original wrongdoer. It must be one not brought into operation by the original wrongful act and must operate entirely independently of such original act.
1 J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW § 4:7 at 4-14—4-15 (2d ed.2002) (footnotes and citations omitted).
We have relied on the Restatement in the past to aid us in determining when an intervening force rises to the level of a new and independent or superseding cause. See Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex.1999); Humble Oil & Ref. Co. v. Whitten, 427 S.W.2d 313, 315 (Tex.1968). The Restatement, which itemizes six factors as useful when making this...
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