Lawson-Avila Const., Inc. v. Stoutamire

• Decision Date: 06 June 1990
• Docket Number: No. 04-89-00361-CV,LAWSON-AVILA,04-89-00361-CV
• Citation: 791 S.W.2d 584
• Parties: CONSTRUCTION, INC., Appellant, v. Alton STOUTAMIRE and Regina Stoutamire, et al., Appellees.
• Court: Texas Court of Appeals

Page 584

791 S.W.2d 584

LAWSON-AVILA CONSTRUCTION, INC., Appellant, v. Alton STOUTAMIRE and Regina Stoutamire, et al., Appellees.

No. 04-89-00361-CV.

Court of Appeals of Texas San Antonio.

June 6, 1990.

Rehearing Denied July 6, 1990.

Sharon E. Callaway, Groce, Locke & Hebdon, San Antonio, for appellant.

Scott M. Bage, Dan Pozza, Daniel J.T. Sciano, Bernard Wm. Fischman, Tinsman & Houser, Wallace T. Jacobs, C.G. House, House & House, Camile Glasscock DuBose, Beckman, Quirk & Fulton, David R. Weiner, San Antonio, for appellees.

Before BUTTS, CHAPA and CARR, JJ.

OPINION

CHAPA, Justice.

This is an appeal from a jury verdict in favor of the appellees, Alton Stoutamire and Regina Stoutamire, individually and as representatives of the estate of Gregory Paul Stoutamire, deceased, Eric Paul Stoutamire, a minor, individually and as sole legal heir and legal representative of the estate of Gregory Paul Stoutamire, deceased, by and through his guardian of the estate, Larry J. Cromer, and Keith Schoolcraft. The case arises out of an accident on a construction site, which resulted in personal injuries to Keith Schoolcraft and fatal injuries to Gregory Paul Stoutamire. Stoutamire's son and parents brought a wrongful death and survival lawsuit against the appellant general contractor, Lawson-Avila Construction, Inc., the subcontractor, Capital Rentals, Inc., who supplied the crane involved in the accident, and the crane operator, Tommy Bullard, an employee of Capital Rentals. Appellee Schoolcraft sued the same defendants for negligence. The two cases were consolidated for trial. Prior to trial, Stoutamire's son and parents settled with Capital Rentals and Tommy Bullard.

The jury found that appellant was 40 percent negligent and Capital Rentals 60 percent negligent. Eric Stoutamire's estate was awarded $253,061.03; the son was awarded $800,000 in actual damages; the parents were awarded $200,000; and, Keith Schoolcraft was awarded $91,070.98.

In addition, the jury found that both Capital Rentals and appellant were grossly negligent. Exemplary damages in the amount of $1,500,000 were assessed against appellant and $2,000,000 against Capital Rentals, with those damages apportioned at 50 percent to the son, 40 percent to the Stoutamire estate, and 10 percent to Schoolcraft. Lawson-Avila appeals from the judgment.

Appellant Lawson-Avila's Motion For Judgment Non Obstante Veredicto was denied. Appellant's Alternative Motion to Disregard the Jury's Answers was granted in part as to Question No. 7(e) and (g), striking awards to Schoolcraft for $10,000 physical impairment in the future and for $20,000 loss of earnings in the future. Appellant's post-verdict motions to modify the judgment and for new trial were denied.

The issues before us are whether:

1) As a matter of law, appellant owed a legal duty of care to an independent contractor's employees;

2) The trial court erred in failing to submit a question inquiring whether appellant retained the right to control an independent contractor's performance of its work activity sufficient to give rise to a duty to exercise ordinary care in regard to an employee of that independent contractor;

3) The trial court was required to submit an instruction confining the jury's consideration of appellant's duty of care to an independent contractor's employees to such acts or omissions for which appellant owed a duty of care;

4) The "gross negligence" standard upon which Texas allows exemplary damages is unconstitutionally vague and deprives a defendant of its due process rights;

5) A finding of gross negligence or exemplary damages must be based on "clear and convincing evidence;"

6) The evidence was factually insufficient to support a finding of gross negligence against the appellant;

7) The exemplary damages were excessive;

8) There was evidence to support appellee Schoolcraft's award of $10,000 for physical impairment in the future.

Facts of the Case

Comal Independent School District contracted with Lawson-Avila Construction, Inc., to build Smithson Valley High School. As the general contractor of the project, Lawson-Avila contracted with Palmer Steel Supplies, Inc., to provide the structural steel work. Palmer Steel subcontracted Weedie's Welding & Fabrification to do the erection. Because its crane was not in working order, Weedie's Welding contracted with Capital Rentals, Inc., to provide a crane and an operator to lift the steel to the second story of the building where Weedie's Welding employees were putting in joists and bridging.

Keith Schoolcraft and Greg Stoutamire, both employed as iron workers by Weedie's Welding, were working on the second story of the building. Schoolcraft and Stoutamire were landing the iron joists and putting them in place on the concrete beams as they were lifted by the crane operator, Tommy Bullard. Schoolcraft directed the crane operator where to put the loads of joists by means of hand signals, or "flagging." Approximately 25 to 30 loads of joists were lifted from the initial location of the crane. The crane was later moved to a second location to continue placing the joists on the second story. While the greatest lifting capacity of a crane is over the rear, Bullard set up the crane almost sideways to the building at the second location. While lifting a bundle of bridging angles up to the second story, Schoolcraft realized that the crane was "booming down and off to one side." Schoolcraft signaled the crane operator to stop and then shrugged his shoulders at the operator, in an effort to ask whether the operator should boom down any further because of the instability. Bullard testified that a shrug to him could also have indicated a question as to why he was stopping.

When the operator did not respond, Schoolcraft signaled him to boom down further. When the crane operator did, Schoolcraft saw the outrigger stabilizer on the crane start to rock and realized that he and Stoutamire should get off the beam. Before he or Stoutamire could move more than a few steps, the crane tipped and hit the center beam, causing it to bend and causing the concrete beams, which held it in place, to pull loose from the slab. Schoolcraft and Stoutamire fell about 25 to 30 feet to the ground, along with some joists and the bridging load the crane had been lifting. Stoutamire was hit by some of the joists and suffered fatal injuries. Schoolcraft sustained two compression fractures of the vertebrae, a broken wrist, and bruised kidneys.

Duty and Right of Control

In its first point of error, the appellant argues that, as a matter of law, appellant owed no legal duty of care to an independent contractor's employees. "An owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition." Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). "A general contractor on a construction site, who is in control of the premises, is charged with the same duty as an owner or occupier." Id. "This duty to keep the premises in a safe condition may subject the general contractor to direct liability for negligence in two situations: (1) those arising from a premises defect, (2) those arising from an activity or instrumentality." Id. In Redinger, the court adopted the rule enunciated in the Restatement (Second) of Torts, which provides:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

RESTATEMENT (SECOND) OF TORTS § 414 (1965); Redinger, 689 S.W.2d at 418.

As in Redinger, the present case involves an injury caused by an activity conducted on the premises. In that regard, the Redinger court stated that "the general rule is that an owner or occupier does not have a duty to see that an independent contractor performs work in a safe manner." Id., citing Abalos v. Oil Development Co., 544 S.W.2d 627 (Tex.1976). However, the court further held that an owner has a duty to see that an independent contractor performs work in a safe manner if the owner retained the right to control any part of the work of the independent contractor. Redinger, 689 S.W.2d at 418. The court held that "this rule applies when the landowner retains some control over the manner in which the independent contractor's work is performed, but does not retain the degree of control which would subject him to liability as a master." Id., citing RESTATEMENT (SECOND) of TORTS § 414, comments a and c (1965).

The comments to the Restatement (Second) of Torts § 414 provide:

a. If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency which deals with the relation of master and servant. The employer may, however, retain a control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.

b. The rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even...