Kroger Co. v. Milanes

• Decision Date: 30 July 2015
• Docket Number: NO. 14–13–00873–CV,14–13–00873–CV
• Citation: 474 S.W.3d 321
• Parties: The Kroger Company, Appellant v. Christopher Milanes, Appellee
• Court: Texas Court of Appeals

474 S.W.3d 321

The Kroger Company, Appellant

v.Christopher Milanes, Appellee

NO. 14–13–00873–CV

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

Opinion filed July 30, 2015

Brock C. Akers, Houston, TX, for appellant.

Chance McMillan, Jason A. Gibson, Peter Michael Kelly, Houston, TX, for appellee.

Panel consists of Justices Jamison, Busby, and Brown.

OPINION

J. Brett Busby, Justice

Appellant, The Kroger Company, a non-subscriber to workers' compensation insurance, appeals from a final judgment in favor of appellee Christopher Milanes, a Kroger employee who was seriously injured while cutting meat. In its first two issues, Kroger contends the trial court erred when it submitted Milanes's claim to the jury on a general negligence theory rather than a premises liability theory. We overrule these issues because (1) the Supreme Court of Texas has held that a non-subscriber employer in Texas owes continuous, non-delegable duties to its employees separate and distinct from those owed to an invitee on the premises; and (2) Milanes alleged, and legally sufficient evidence showed, that Kroger breached those duties.

Kroger asserts in its third and fourth issues that the evidence is legally and factually insufficient to support the jury's findings that Kroger's negligence proximately caused Milanes's injury and that he suffered past and future loss of earning capacity as a result of the injury. We overrule these issues because the record on appeal contains legally and factually sufficient evidence of both proximate cause and loss of earning capacity.

In its fifth issue, Kroger contends that the trial court abused its discretion when it admitted irrelevant photographs and videos that it argues were taken illegally. We overrule this issue because the photographs and videos were relevant, Milanes took them while legally on Kroger's premises, and Kroger has not shown that he violated any law while doing so. Finally, Kroger argues in its sixth issue that the trial court abused its discretion when it failed to intervene to remedy alleged juror misconduct. We overrule this issue because, even if we assume the trial court had a duty to intervene and failed to do so, Kroger has not established that it was harmed as a result. We therefore affirm the trial court's judgment.

BACKGROUND

A. Kroger hires Milanes and trains him as a journeyman meat cutter.

Milanes applied for a job at Kroger in 2007. Milanes went through a one-day orientation before he started work. According to Milanes, the orientation did not involve safety training but instead covered the advantages of joining the union. Once Milanes started working for Kroger, he was assigned to work in the meat department as a clerk. After he had been working for about a month, Kroger promoted Milanes to apprentice meat cutter. Milanes then moved from store to store before eventually being assigned to the Post Oak Kroger in 2009.

As an apprentice meat cutter, Milanes received on-the-job training from a journeyman, or more experienced, meat cutter. Journeyman meat cutters were supposed to train apprentices on the proper operation of the store's meat-cutting equipment, including the Biro brand bone-in band saw at issue in this appeal. The journeyman meat cutter was also expected to train the apprentice in the safety measures that needed to be taken while using that equipment. Milanes eventually became a journeyman meat cutter.

Milanes testified that he received a great deal of his meat-cutting training from Matt Anderson, a journeyman meat cutter at the Kroger store in Montrose. While Milanes testified that he believed Anderson did a good job training him, he also testified that he was not taught by anyone at Kroger to use the band saw blade guard, which both the saw manufacturer and the Occupational Safety and Health Administration (OSHA) require to be used at all times while cutting meat with the saw.¹ Indeed, Milanes testified that he was not even aware that the bone-in band saw had a blade guard; instead, he was taught the blade guard was a guide used to line the meat up prior to cutting. As a result, Milanes never used the blade guard. Milanes also testified that he was never given Kroger's Meat and Seafood Department Safety Manual or the Biro band saw's operator's manual. Milanes further testified that the bone-in saw manufacturer's warning labels were not on the Post Oak Kroger's saw during the time he worked at the store.

B. Problems with Kroger's bone-in band saw were reported prior to the injury.

Milanes and other meat cutters experienced problems with the bone-in saw prior to Milanes's injury. Milanes testified that before he was injured, he reported to Kroger management: (1) the saw squealing loudly; (2) the blades dulling very quickly, often within thirty or forty minutes of the blade being changed; (3) the saw frequently catching the meat and sucking it into the blade; (4) the saw being off-balance and shaking frequently; (5) the blade wobbling; and (6) the presence of a lip on the saw table that frequently snagged the meat. Milanes testified that if he told Adam Bell, another journeyman meat cutter who also served as a relief meat market manager, about a problem, Bell would start tinkering with the saw in an effort to fix the problem. Milanes saw Bell doing maintenance on the saw at least twice a week.

With respect to the saw blade dulling quickly, Milanes admitted he had the discretion to change the blade whenever he believed it was necessary. He went on to explain, however, that Kroger management had asked the meat cutters to be sparing with the blades and to make them last. The evidence also revealed that there was a financial incentive for managers to come in under budget. Milanes recounted an episode in which he had used so many blades on the bone-in saw that the store's supply was exhausted, thereby angering management.

In addition to Milanes, several other Kroger meat cutters testified during the trial regarding the pre-accident condition of the saw and Kroger's handling of maintenance issues. These witnesses included William Quinones, Michael Barnes, and Bell. Quinones still worked as a Kroger meat cutter at the time of trial. Kroger had terminated Bames prior to trial for alleged dishonesty. Bell, as mentioned above, was a meat cutter and assistant meat market manager at the Post Oak Kroger. All three testified that there were frequent problems with the bone-in saw.

Among the problems Quinones reported to Kroger management were (1) the blade tension was not right; (2) the blade would occasionally pop off of the saw; (3) the saw table was wobbly; and (4) the blade dulled quickly, requiring frequent blade changes. According to Quinones, management could not get the problems with the saw fixed before Milanes's injury. Quinones also explained that a band saw making a loud squealing noise can indicate that there is a problem with the saw's blade tension. He went on to explain that if the tension is off, it can make the blade dull more quickly. Quinones explained that a dull blade can cause the meat to jerk or suck the operator's hand into the blade.

Like Milanes, Quinones testified that he had never seen the operator's manual for the bone-in saw and management never told him that he had to read it before operating the saw. Quinones also confirmed that there were no warning signs or labels on the bone-in saw. Quinones never observed inspectors performing regular maintenance on the saw. Instead, Kroger maintenance personnel only came out when a problem was reported. Quinones testified that he was not a trained maintenance person for the bone-in saw, but Kroger expected him to perform maintenance on the saw. Quinones admitted that he had adjusted the tension on the blade and that he had also seen Bell working on the saw.

Barnes confirmed many of the problems mentioned by Milanes and Quinones. Barnes testified that he saw Bell adjusting the tension on the blade and that Bell would grab pliers and attempt to fix any problem reported to him. Bames also agreed with Quinones that there was no regular maintenance program for the store's band saws.

Bell testified that he experienced the blade popping off the saw prior to Milanes's injury. He went on to explain that, in his experience, the blade coming off a band saw was caused by either (1) an accumulation of bone dust and "goop" clogging the blade scrapers;² or (2) the blade tension not being set properly. Bell also testified that when a band saw makes a loud noise, it means something is wrong with the saw. Bell further testified that he had never seen a complete list of steps on how to clean the bone-in saw nor had he seen the operator's manual for the saw.

Bell admitted that he was not certified by the saw manufacturer to do maintenance on the saw. Bell testified that, as a journeyman meat cutter, he could change the saw's blade and also adjust the tension of the blade but was not authorized to do more than that. According to Bell, he took the saw apart to clean it, not perform maintenance on it. After he was shown a photograph that appeared to show him working on the bone-in saw, Bell explained that a Kroger maintenance person had told him that there was a nut on the saw that if it became loose, it could cause the blade to get out of adjustment and possibly even pop off. Bell explained that he was attempting to adjust that nut when the photograph was taken. Bell then denied that he was doing anything improper when the photograph was taken.

Bell testified that he did not recall any particular problems with the bone-in saw prior to Milanes's injury. In Bell's opinion, there would have to be something very wrong with a band saw for the blades to dull within thirty to forty minutes of being changed. Bell went on to state that dull blades make it more likely that the meat will jump while being cut. Bell also did not recall any feedback from Kroger management about changing saw blades too frequently or any request to keep costs down by not...