Excel Corp. v. Apodaca, 01-0358.

• Decision Date: 27 June 2002
• Docket Number: No. 01-0358.,01-0358.
• Citation: 81 S.W.3d 817
• Parties: EXCEL CORPORATION, Petitioner, v. Jimmy APODACA, Respondent.
• Court: Texas Supreme Court

81 S.W.3d 817

EXCEL CORPORATION, Petitioner, v. Jimmy APODACA, Respondent.

No. 01-0358.

Supreme Court of Texas.

Argued March 27, 2002.

Decided June 27, 2002.

Rehearing Denied August 29, 2002.

Robert L. Craig, Jr., Craig Terrill & Hale, Leslie F. Hatch, Murchison Hund Harriger L.L.P., Lubbock, Robert M. Cohan, Linda S. Althoff, Ella Schroeder Namaksy, William David Ellerman, Jackson Walker L.L.P., Dallas, for Petitioner.

Kevin Glasheen, Christopher T. Carver, Jeffrey H. Cluff, Fadduol Glasheen & Valles, Lubbock, for Respondent.

Justice HANKINSON delivered the opinion of the Court.

Jimmy Apodaca suffered from cumulative trauma disorders (CTDs) while working at Excel Corporation's beefpacking plant in Friona, Texas. He sued Excel, a nonsubscriber under the Texas Workers' Compensation Act, for negligence and gross negligence in failing to provide a safe workplace. The trial court rendered judgment on the jury's negligence verdict for Apodaca, and the court of appeals affirmed. 51 S.W.3d 686. In this cause, Excel challenges, among other things, whether legally sufficient evidence exists to support the jury's finding that Excel's negligence proximately caused Apodaca's injuries. We conclude that no evidence supports that finding, and accordingly reverse the court of appeals' judgment and render judgment that Apodaca take nothing.

Apodaca began working at Excel in 1978. He held a number of physically demanding positions before sustaining injuries to his neck, back, and wrist that ultimately resulted in his being unable to return to work in 1995. During his last three years at Excel, Apodaca worked as a cryovac 8300 operator. As a cryovac 8300 operator, Apodaca handled bags of meat weighing up to forty pounds, which were moved by a conveyor belt to a table located near him. As bags landed on the table, Apodaca would bend to grab a bag, turn towards the cryovac machine, and slide the bag onto a machine plate. The cryovac machine then removed air from the bag and sealed it. During a typical eight-hour shift, Apodaca sealed one bag approximately every three seconds.

On May 2, 1995, Apodaca completed an Employee Statement of Injury, reporting pain in his left hand. He visited several physicians for treatment. While Apodaca's doctors determined he had injured his back, neck, and wrist, the only injury they agreed was work related was the carpal tunnel syndrome in his wrist. Accordingly, Excel paid for medical expenses related to the carpal tunnel injury. An orthopedic surgeon treated the carpal tunnel injury by splinting Apodaca's hand. On August 3, 1995, an electromyography revealed that the carpal tunnel syndrome had resolved. At this point, Excel stopped paying Apodaca's medical expenses. Nonetheless, Apodaca eventually underwent three operations to treat his neck, lower back, and wrist. Despite feeling better after these surgeries, Apodaca continued to suffer pain and could no longer work or perform household duties, such as mowing the lawn or washing dishes.

Because Excel is a nonsubscriber under the Workers' Compensation Act, Apodaca sued Excel alleging common-law claims of negligence and gross negligence in failing to provide a safe workplace. See TEX. LAB.CODE § 406.033(d); Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995). Apodaca specifically alleged that the machinery and design of the cryovac operator's workplace required excessive bending, reaching, and pulling, without appropriate rest periods, and that Excel's untimely detection of his CTD symptoms aggravated his injuries and delayed treatment for them. The jury found Excel negligent and awarded actual damages of $536,472. The trial court rendered judgment on the verdict.

The court of appeals rejected Excel's challenges to the qualification of a juror, the legal and factual sufficiency of the evidence supporting the jury's proximate-cause finding, the jury charge, and the prejudgment-interest ward. 51 S.W.3d 686. With respect to the evidence of proximate cause, the court concluded, among other things, that "the evidence on cause in fact is not particularly strong," but that "the jury could have found that the speed of the production line, which workers were discouraged from slowing or stopping, was excessive and the number of repetitions the employee was required to perform because of the speed and without an opportunity to rest was the cause of [Apodaca's] CTDs." Id. at 699. One justice dissented however, concluding that "[Apodaca] did not prove that he would not have suffered his CTD injuries but for the alleged negligence of [Excel]." Id. at 704. A divided court of appeals therefore affirmed the trial court's judgment. Id. at 702.

On petition for review, Excel challenges, among other things, the legal sufficiency of the evidence to support the jury's finding that Excel's negligence proximately caused Apodaca's injuries. Proximate cause comprises two elements: cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Foreseeability means that a person of ordinary intelligence would have anticipated the danger his or her negligence creates. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987). The test for cause in fact, or "but for cause," is whether the act or omission was a substantial factor in causing the injury "without which the harm would not have occurred." Boys Clubs, 907 S.W.2d at 477. A finding of cause in fact cannot be supported by "mere conjecture, guess, or speculation," id., but may be based on either direct or circumstantial evidence. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992).

Specifically, Excel argues that Apodaca presented no evidence of cause in fact — that at best, Apodaca offered evidence that he suffered work-related injuries, but presented no proof that if Excel had done something different at the work-site, Apodaca would not have been injured or would not have been injured as severely. In determining whether Apodaca presented legally sufficient evidence to meet that test, we view the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. See Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001).

Apodaca presented several different categories of evidence to show that his injuries were caused or exacerbated by Excel's failure to provide a safe workplace, including: (1) testimony from Excel employees about recommended or requested changes to the cryovac work-site and about recommended ergonomics and medical-management programs; (2) Occupational Safety and Health Administration (OSHA) recommendations about changes to the cryovac work-site and the use of symptoms surveys; and (3) medical testimony linking Apodaca's...