Jacobs-Cathey Co. v. Cockrum, JACOBS-CATHEY

• Decision Date: 04 June 1997
• Docket Number: JACOBS-CATHEY,No. 10-96-051-CV,10-96-051-CV
• Citation: 947 S.W.2d 288
• Parties: COMPANY, Appellant, v. Thomas Carroll COCKRUM, Appellee.
• Court: Texas Court of Appeals

Page 288

947 S.W.2d 288

JACOBS-CATHEY COMPANY, Appellant, v. Thomas Carroll COCKRUM, Appellee.

No. 10-96-051-CV.

Court of Appeals of Texas,

Waco.

June 4, 1997.

Rehearing Overruled July 16, 1997.

Opinion Dissenting from Overruling ofRehearing July 16, 1997.

Nick R. Bray, Keith C. Cameron, Naman, Howell, Smith & Lee, P.C., Waco, for appellant.

John R. Francis, Temple, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

The appellee, Thomas Carroll Cockrum, a roofing inspector employed by the Waco Independent School District, tripped over an air conditioning belt as he was stepping onto the roof at the Waco Ninth Grade Center, lost his balance, and fell over the side of the school. Landing on his feet after the two-story fall, Cockrum shattered many of the bones in his feet and thereby suffered permanent disabilities. Cockrum sued the appellant, Jacobs-Cathey Co., an air-conditioning servicing business, for failing to remove the air conditioning belt after it had completed a service job on the roof eight months earlier. A jury found Jacobs-Cathey wholly liable for the accident and awarded Cockrum $325,000 in damages. The trial court signed a judgment in conformity with the verdict three weeks later.

Through five points of error, Jacobs-Cathey raises two issues on appeal--the legal and factual sufficiency of the evidence to support the findings (1) that a Jacobs-Cathey employee failed to remove an air conditioning belt that it had replaced, and (2) that a Jacobs-Cathey employee left the air conditioning belt that Cockrum tripped over. We affirm.

I. FACTUAL BACKGROUND

In January 1993, Cockrum was employed by Waco ISD as a roofing inspector. His job duties required him to inspect the roofs of the district's twenty-seven campuses as well as its administrative buildings and sports facilities. When a roof on one of these buildings would leak, it was Cockrum's job either to make the necessary repairs or to report the leak to a superior so that an independent contractor could be located to make the repairs.

In the morning of January 8, 1993, Cockrum responded to a complaint that the roof at the Ninth Grade Center was leaking. He climbed onto the roof and determined that a seal around a drain on the roof needed to be patched, and he contacted A.C. Parsons Roofing, with whom Waco ISD had a contract to make various roofing repairs, to fix the leak. A.C. Parsons informed Cockrum that an employee, Rusty Wooley, would be at the school at around 1:00 or 1:30 p.m.

Cockrum left the Ninth Grade Center, but returned shortly before 1:00 to meet Wooley. Cockrum set his ladder on the south side of the building and secured it to prevent it from slipping. He put on his boots and climbed the ladder. Once he reached the top of the building, he stepped off from the ladder and onto the roof. He then took a step with his right foot and attempted another with his left. As he brought his left foot forward, his feet became entangled and he lost his balance. Cockrum fell backwards and head-first over the side of the roof. As he was falling, Cockrum grabbed the ladder, enabling him to turn himself upright. Cockrum, however, continued falling for approximately twenty feet until he landed on his feet.

II. DUTY

Before proceeding with a discussion of the issues, we must address the question of whether Jacobs-Cathey owed a duty of care to Cockrum. In its original brief, Jacobs-Cathey presumed that Cockrum raised two theories of recovery at trial, namely, simple negligence and premises liability. In his "Appellee's Brief," Cockrum responded that he did not sue Jacobs-Cathey for premises liability, but only for simple negligence. Cockrum indicated, however, that Jacobs-Cathey bore a duty to him within this simple negligence theory both to remove the air conditioning belts it left on the roof and the air conditioning belts left on the roof by other parties. Cockrum contended that Jacobs-Cathey, pursuant to (1) a company policy of removing debris from its work sites regardless who had left it there and (2) a common-law duty imposed upon air conditioner repairmen to remove other parties' debris from their own work sites, assumed this duty to remove air conditioning belts left by third parties. In a reply brief, Jacobs-Cathey asserted that the only duty it had to Cockrum was to remove its own air conditioning belts.

It is apparent from this development in the arguments that Cockrum, by disavowing any intention to sue Jacobs-Cathey on a premises liability theory, has restricted his means of recovery to simple negligence. It is also clear that, because the parties agree that Jacobs-Cathey bore a duty to Cockrum to remove any air conditioning belts that its own employees may have left on the Ninth Grade Center's roof, Jacobs-Cathey may be liable to Cockrum if Cockrum tripped over an air conditioning belt that one of its own employees left on the roof. The remaining question to be answered, however, is whether Jacobs-Cathey employees bore a duty to remove any air conditioning belts that may have been left on the roof by another party.

a. Company Policy

The Supreme Court has stated:

There are many instances in which it may be said, as a matter of law, that there is a duty to do something, and in others it may be said, as a matter of law, that there is no such duty. Using familiar illustrations, it may be said generally, on the one hand, that if a party negligently creates a dangerous situation it then becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. On the other hand, it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others.

SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex.1995) (quoting Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942)). As a general rule, mere bystanders have no duty to remedy a dangerous condition created by someone else. See id.; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). However, certain relationships, such as master-servant, parent-child, or employer-employee, do impose, as a matter of law, certain duties to undertake affirmative acts in special circumstances for the benefit of another. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); Otis, 668 S.W.2d at 309. Moreover, when there would otherwise be no duty on the part of the defendant to the plaintiff, the defendant assumes a duty of care to remedy any dangerous conditions that he, himself, creates. The Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997).

Jacobs-Cathey agrees that if it created a dangerous condition on the Ninth Grade Center's roof, it had a duty to remedy the condition. Jacobs-Cathey, however, asserts that it had no duty to remove anyone else's air conditioning belts. Cockrum argues that Jacobs-Cathey's internal policy of removing any-and-all debris from a completed work site, whether or not the debris was left by Jacobs-Cathey employees, resulted in a "special relationship" that enjoined upon it a duty to third parties who might be injured from debris left by a party other than Jacobs-Cathey.

The testimony at trial from several Jacobs-Cathey representatives reveals that Jacobs-Cathey employees frequently removed debris left by other parties because it took a minimal effort to remove the debris and because the potential for injury to others who might later visit the work site was great. However, a defendant's policy to remedy dangerous conditions he may come across does not impose a legal duty on him to these third parties. See Estate of Catlin v. General Motors Corp., 936 S.W.2d 447, 451 (Tex.App.--Houston [14th Dist.] 1996, no writ) (on rehearing). While the members of a corporation perhaps should be lauded on a personal level for sua sponte establishing policies requiring its employees to affirmatively remedy dangerous conditions created by others, the enactment of these policies is insufficient to alter the legal rule that a mere bystander owes no duty of care to make safe a dangerous condition negligently or intentionally created by a third party.

We therefore conclude that any policy Jacobs-Cathey maintained requiring its employees to remove debris left at its work sites by other parties did not impose upon Jacobs-Cathey a duty to third parties injured by this unremoved debris.

b. Common Law Duty

Cockrum also asserts that Jacobs-Cathey employees, as air conditioner repairmen, owe a duty of care to make their work sites safe to third parties by remedying dangerous conditions created by other persons because of the highly technical and specialized nature of their profession. Cockrum cites Remuda Oil & Gas Co. v. Nobles, 613 S.W.2d 312, 316 (Tex.Civ.App.--Fort Worth 1981, no writ), for the proposition that certain professionals, such as medical doctors, due to the nature of their calling, possess a duty to provide care to parties even when the professional is a bystander. Nobles, however, stands only for the proposition that the standard of care for medical doctors and other professionals may be higher than a simple reasonable-person standard. See id. Moreover, we are aware of no authority that imputes to medical doctors or any other professionals a duty of care to another party when the doctor or other professional is a mere bystander. Similarly, air conditioner repairmen bear no duty to remove from their work sites debris left by another party even though that repairman may realize the debris poses a danger to other people who may later visit the work site. Thus, we conclude that Jacobs-Cathey employees bore no common law duty to remove debris from the roof of the Ninth Grade Center that was left by some other party.

III. LEGAL AND FACTUAL SUFFICIENCY OF THE...