JMI Contractors, LLC v. Medellin

• Court: Texas Court of Appeals
• Writing for the Court: Luz Elena D. Chapa, Justice
• Citation: 716 S.W.3d 783
• Docket Number: 04-22-00072-CV
• Decision Date: 28 August 2024
• Parties: JMI CONTRACTORS, LLC, Appellant v. Jose Manuel MEDELLIN, Appellee

716 S.W.3d 783

JMI CONTRACTORS, LLC, Appellant

v.Jose Manuel MEDELLIN, Appellee

No. 04-22-00072-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: August 28, 2024

From the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2018-CI-05983, Honorable Aaron Haas, Judge Presiding

APPELLANT ATTORNEY: David E. Chamberlain, Scott R. Taylor, Chamberlain McHaney, PLLC, 901 S. Mopac Expy., Bldg. I, Ste. 500, Austin, TX 78746, Christopher J. Deeves, Chamberlain McHaney, PLLC, 310 S. St. Mary’s Street, Ste. 1815, San Antonio, TN 78746.

APPELLEE ATTORNEY: Lara Brock, Javier Espinoza, Espinoza Law Firm, PLLC, 10202 Heritage Blvd., San Antonio, TX 78216, Nadeen Abou-Hossa, Gonzalez, Chiscano, Angulo & Kasson, PC, 9601 McAllister Fwy., Ste. 401, San Antonio, TX 78216-4634, Justin A. Hill, Hill Law Firm, 445 Recoleta Rd., San Antonio, TX 78216.

Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Liza A. Rodriguez, Justice.

OPINION

Opinion On Motion For Rehearing

Opinion by: Luz Elena D. Chapa, Justice

This is a personal injury case brought by appellee Jose Manuel Medellin against appellant JMI Contractors, LLC for injuries he sustained after falling off a roof at a construction site. Medellin sued JMI for negligence, gross negligence, and premises liability, and the jury awarded him $4,637,375.72. On appeal, JMI argues: 1) the evidence is legally and factually insufficient to support Medellin’s claims and the damages awarded, 2) the trial court abused its discretion by excluding certain evidence, and 3) Medellin’s counsel engaged in an incurable jury argument.

In our opinion dated June 28, 2023, we held the trial court erred by “excluding evidence that Medellin consumed alcohol and marijuana on the day of the incident,” and the exclusion “probably caused the rendition of an improper judgment.” We therefore reversed and remanded the case for a new trial. Medellin timely filed a motion for rehearing, and we requested a response from JMI. After considering the motion and response filed, we grant Medellin’s motion for rehearing, withdraw our prior opinion and judgment, and substitute this opinion and judgment in their stead.

Background

JMI is a restoration and renovation company that provides exterior repair services to multi-family housing developments, such as apartment complexes, townhomes, and condominiums. In June 2017, the Oaks on Bandera Apartments (the Oaks Apartments) hired JMI to repair the roofs of the buildings making up its apartment complex; the roofs had been damaged by hail. JMI’s project superintendent John Obiedo and safety advisor Carlos Angelini worked on the project and were responsible for ensuring proper safety rules and regulations were enforced. Raul Rodriguez, a roofing supervisor for JMI, also worked on the project and was responsible for making sure the “workers” used fall protection. Photographs of the Oaks Apartments show the buildings have a flat-roof design, and according to Obiedo, flat-roof safety standards required setting up a warning line along the roof perimeter to warn workers when they were approaching the edge.

Roofing work at the Oaks Apartments started on March 1, 2018, and workers began preparing to re-roof the buildings with thermoplastic polyolefin (“TPO”) material, a single-ply rubberized roofing membrane. Photographs taken of the construction site and daily field reports completed by JMI show workers were sweeping gravel on the roofs and laying TPO material without any safety precautions in place. On March 9, 2018, Rodriguez contacted Abelardo Hernandez of Metal Roof & TPO Specialist, LLC (Metal Roof) to help with the project. By this time, workers had re-roofed one building, and JMI planned for Hernandez to utilize a different technique on another building as a “job sample.” It was Hernandez’s understanding if JMI and the Oaks Apartments liked the sample, he would be awarded the roofing contract for the remainder of the buildings.

The next morning, Hernandez called Medellin, who he had worked with in the past, to help with the project. Medellin agreed, and when he arrived at the apartment complex, Hernandez, Obiedo, Rodriguez, and Rodriguez’s assistant Reybel Rodriguez were on site. Medellin observed a twelve-by-twelve-foot area had been marked in the middle of the building as the “sample patch,” and no warning line had been installed on the roof. Medellin worked alongside Reybel, walking backward, rolling the material from edge to edge, and then stretching and flattening the material out to make a waterproof seal. According to Medellin, as he walked backward, he would stop and turn to see where the roofs edge was located. When he was approximately seven feet from the edge, he was instructed to “pull the whole roll.” At one point, as he unrolled the material, he fell off the side of the two-story building, sustaining numerous injuries.

Medellin sued JMI, alleging negligence, gross negligence, and premises liability.¹ Among other things, Medellin alleged JMI owed him a duty because it exercised control over the safety of the premises, and it failed to adequately warn Medellin of the dangers of the premises. The jury found in favor of Medellin; it specifically found JMI exercised control over the use of fall protection safety measures for the roofing work performed at the Oaks Apartments and found it was negligent under Medellin’s negligent activity and premises liability theories of recovery; it further found Angelini grossly negligent. It awarded Medellin damages for past and future pain and suffering, past and future mental anguish, past and future loss of earning capacity, past and future physical impairment, past and future mental expenses, and exemplary damages. The trial court entered a final judgment in favor of Medellin for $4,637,375.72, and JMI filed this appeal.

Legal and Factual Sufficiency Challenges to Medellin’s Liability Claims

According to JMI, the evidence is legally and factually insufficient to support the jury’s verdict that found it negligent under Medellin’s negligent activity and premises liability claims. Interwoven in its sufficiency challenge, JMI contends it owed no duty to Medellin under a negligent activity theory because Medellin was hired as an independent contractor by an independent contractor, and there is no evidence it exercised control over Medellin. As to Medellin’s premises liability claim, JMI further argues it had no duty to warn Medellin of an open and obvious danger, and the necessary-use exception does not apply. JMI also contends even assuming it owed Medellin a duty, the evidence is legally and factually insufficient to show it breached any duty. Finally, JMI asserts the evidence is legally and factually insufficient to show Angelini acted with gross negligence.

A. Sufficiency Standards of Review

[1–6] The standards for legal and factual sufficiency are well-established. Under a legal sufficiency standard:

[W]e consider whether the evidence at trial would enable a reasonable and fair-minded fact finder to reach the verdict under review. Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. The record contains more than a mere scintilla of evidence when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Conversely, the record contains less than a scintilla when the evidence offered to prove a vital fact’s existence is “so weak as to do no more than create a mere surmise or suspicion.” All the record evidence must be considered “in the light most favorable to the party in whose favor the verdict has been rendered,” and “every reasonable inference deducible from the evidence is to be indulged in that party’s favor.”

Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (quoting Bustamante v. Ponte, 529 S.W.3d 447, 455-56 (Tex. 2017); and then King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)) (citations omitted). Under a factual sufficiency standard:

When reviewing an assertion that the evidence is factually insufficient to support a finding, a court of appeals sets aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, it determines that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer¹ should be set aside and a new trial ordered.

Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016).

B. Negligent Activity Claim and Duty

[7–11] “The existence of a legal duty is a question of law for the court to decide … from the facts surrounding the occurrence in question.’ ” Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005) (quoting Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994)). In general, “one who employs an independent contractor has no duty to ensure that the contractor safely performs its work.” J LB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 865 (Tex. 2021) (citing AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020)). An exception to this general rule exists when “the employer retains some control over the manner in which the contractor performs the work that causes the damage.” Id. (quoting AEP, 612 S.W.3d at 295) (internal quotation marks omitted). “A plaintiff can prove the requisite control by establishing that the general contractor either actually controlled the manner in which the subcontractor performed its work or had a contractual right to do so.” Id. The “control must relate to the condition or activity that caused the injury” and must “extend[] to the means, methods, or...