Lee Lewis Const., Inc. v. Harrison

• Court: Texas Court of Appeals
• Writing for the Court: Quinn
• Citation: Lee Lewis Const., Inc. v. Harrison, 64 S.W.3d 1 (Tex. App. 1999)
• Decision Date: 29 June 1999
• Docket Number: No. 07-97-0495-CV.,07-97-0495-CV.
• Parties: LEE LEWIS CONSTRUCTION, INC., Appellant, v. Norma HARRISON, individually and as next friend of Sumer Dawn Harrison and Jimmy Thor Harrison, and May and Sellie Harrison, Appellees.

64 S.W.3d 1

LEE LEWIS CONSTRUCTION, INC., Appellant, v. Norma HARRISON, individually and as next friend of Sumer Dawn Harrison and Jimmy Thor Harrison, and May and Sellie Harrison, Appellees.

No. 07-97-0495-CV.

Court of Appeals of Texas, Amarillo.

June 29, 1999.

Opinion on Remittitur July 8, 1999.

R. Brent Cooper and Michell E. Robberson, Dallas, Robert L. Craig, Jr., Hughe N. Lyle & Eric Walraven, Lubbock, for appellant.

Carl V. Crow, Houston, Joe L. Lovell, Amarillo, Richard N. Countiss, Houston, Jonette Walker, James L. Killion, Lubbock, for appellees.

Before BOYD, C.J., QUINN, and REAVIS, JJ.

QUINN, Justice.

Lee Lewis Construction, Inc. (LLC) appeals from a final judgment 1) awarding damages against it to Norma Harrison, individually and as the next friend of her children Sumer Dawn and Jimmy Thor Harrison, and May and Sellie Harrison (collectively referred to as Jimmy's kin) and 2) granting summary judgment to KK Glass, Inc. (KK). Via eight issues, LLC questions the sufficiency of the evidence underlying the finding of negligence and the award of exemplary damages, the accuracy of a jury issue submitted by the court, the admission of evidence allegedly depicting subsequent remedial measures, and the validity of the summary judgment granted KK. We affirm in part and reverse in part.

Background

The lawsuit arose from an incident occurring at a construction site. LLC was retained, as general contractor, by the owner of the site to construct additional floors to an existing building. Methodist Hospital (Methodist) owned the site in question. Of the many subcontractors hired to assist it in performing its contractual duties, LLC retained KK to install "all glass glazing," among other things. While performing his duties under this subcontract, Jimmy Harrison, an employee of KK Glass, fell from the tenth story of the building to his death.

Thereafter, Jimmy's wife (Norma), children (Sumer Dawn and Jimmy Thor) and parents (May and Sellie) sued LLC for negligence, negligence per se, and gross negligence. So too did they sue KK, but only for gross negligence. LLC then filed its cross-claim against KK for contractual indemnity or, alternatively, contribution. KK moved for summary judgment upon the claim of LLC, which motion was granted. KK also entered into a settlement agreement with Jimmy's kin, who then non-suited their claims against it.

Eventually, the dispute between Jimmy's kin and LLC was tried to a jury. After hearing the evidence, the latter rendered a verdict that LLC retained "the right to control safety" at the construction site, that LLC was both negligent and grossly negligent, and that the plaintiffs were entitled to compensatory and exemplary damages. Judgment was subsequently entered upon that verdict.

Retention of Control

The first issue posed concerns the legal and factual sufficiency of the evidence underlying the jury's finding of negligence. Specifically, LLC asserts that, at most, it retained the right to require its subcontractors to abide by general safety measures at the construction site. In retaining this right, it continues, it did not undertake the unqualified duty to ensure a safe workplace for the employees of its independent contractors. Rather, it merely bound itself to ensure that any safety measures it enacted did not increase the risk of harm to those employees. Allegedly, nothing of record illustrates that any of its safety measures increased the risk of harm to Jimmy. Consequently, the evidence of negligence is supposedly inadequate to support the jury's verdict. We disagree, for LLC did more than merely retain the right to have its subcontractors abide by the "general" safety regulations it promulgated.

1. Standard of Review

A finding is legally sufficient if some evidence, or the reasonable inferences therefrom, supports it. Tabor v. Hogan, 955 S.W.2d 894, 895-96 (Tex. App.-Amarillo 1997, no pet.); In the Interest of Striegler, 915 S.W.2d 629, 638 (Tex.App.-Amarillo 1996, writ dism'd w.o.j.). This is determined by first examining the record for evidence favoring the verdict while ignoring that contradicting it. Id. If the favorable evidence amounts to more than a scintilla, then the verdict is legally sufficient. Id. In other words, if the favorable evidence "`rises to the level that would enable reasonable and fairminded people to differ in their conclusions,' " then the verdict passes muster. Associated Indem. Corp. v. CAT Contr., Inc., 964 S.W.2d 276, 285-86 (Tex.1998) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.1994)).

In resolving questions of factual sufficiency, our task differs; we decide if the evidence uncovered through application of the legal sufficiency standard is so weak, or the contrary evidence so overwhelming, as to render the finding clearly wrong or manifestly unjust. In the Interest of Striegler, 915 S.W.2d at 638-39. Thus, in conducting a factual sufficiency analysis we consider the entire record, not just the evidence supporting the verdict.

Neither of the foregoing standards enable us to substitute our personal interpretation of the evidence for that of the fact finder. Its authority to assign weight to the evidence, make reasonable inferences therefrom, and assess the credibility of the witnesses remains inviolate under both standards. Tabor v. Hogan, 955 S.W.2d at 896.

2. Extent of Duty Upon General Contractor

Normally, a general contractor owes no duty to ensure that an independent subcontractor performs in a safe manner. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex.1998); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997). Yet, no rule is without exception, and that pertinent here arises from the concept of control. That is, our courts have long recognized that one enjoying the authority to control a matter is in the best position to protect against harm arising from it. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). Thus, if a general contractor retains the right to control safety at the construction site, it must act reasonably. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d at 356; Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d at 528; Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); Welch v. McDougal, 876 S.W.2d 218, 222 (Tex.App.-Amarillo 1994, writ denied). This does not mean that the duty to so act is plenary, however. Rather, it is proportional to the control retained or exercised.¹ Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d at 355; Exxon Corp. v. Tidwell, 867 S.W.2d at 23.

The interplay between retained control and scope of duty is much like a sliding scale. As more control is retained over how the subcontractor performs the details of its work, the parameters of the duty proportionally increase. For instance, requiring a subcontractor to abide by the general contractor's safety rules and regulations does not impose upon the latter an unqualified duty to ensure the safety of each employee of the subcontractor. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d at 357-58. Under that circumstance, the general contractor is merely obligated to assure "that any safety requirements and procedures ... [it] promulgated did not unreasonably increase... the probability and severity of injury" to the subcontractor's employees. Id. This is so because the control exercised is finite and no greater than the scope of the rules enacted. See Arias v. MHI Partnership, Ltd., 978 S.W.2d 660, 663 (Tex.App.-Corpus Christi 1998, pet. denied) (interpreting Hoechst-Celanese as holding that "when an employer promulgates a safety rule or regime, it assumes a narrow duty—to ensure that its rules or requirements are reasonably safe"). And, to the extent that the subcontractor's freedom to act within the area is impinged, it is so impinged only with regard to the matters encompassed by those particular rules and regulations. In other things, the subcontractor is entirely free to work as it chooses. See id. (stating that before the general contractor becomes liable, it must retain a right of control sufficient to limit the subcontractor's freedom to perform as he chooses); Restatement (Second) of Torts § 414 cmt. c (1965) (stating the same).

Yet, as the general contractor increases its authority over matters of safety, its duty to act with reasonable care similarly increases. So, the narrow duty recognized by Arias and Hoechst-Celanese does not necessarily remain narrow. Conceivably, if all of the subcontractor's independence in the area of safety were usurped then it the general contractor's duty of care would consist of more than merely assuring that its rules do not increase the risk of harm. Indeed, if the area of safety is usurped, then the general contractor would have to exercise reasonable care by not only assuring that its rules do not increase the risk of harm, but also affirmatively promulgating rules which ameliorate unsafe practices or conditions of which it knew or should have known and which were within its control.

3. Application of Standard

a. Legal Sufficiency²

The contract between Methodist and LLC (referred to as the Methodist Contract) contained numerous provisions regarding the supervision of work and safety. For instance, LLC agreed to 1) supervise and direct the work, 2) be solely responsible for all construction means, methods, techniques, sequences, and procedures, 3) coordinate all portions of the work, 4) be responsible to Methodist for the acts and omissions of it, its employees and of its subcontractors and their employees, 5) be "responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the [w]ork," 6) take "all reasonable precautions for the safety of, and ... [to] provide all reasonable protection to prevent damage, injury or loss to ... all employees on the [w]ork and all other persons who may be affected thereby," including Methodist and "other separate contractors," 7) give "all...