Lmc Complete Automotive, Inc. v. Burke

• Decision Date: 21 June 2007
• Docket Number: No. 01-07-00126-CV.,No. 01-06-00694-CV.,01-06-00694-CV.,01-07-00126-CV.
• Citation: 229 S.W.3d 469
• Parties: LMC COMPLETE AUTOMOTIVE, INC., Appellant, v. Ronald BURKE, Appellee.
• Court: Texas Court of Appeals

229 S.W.3d 469

LMC COMPLETE AUTOMOTIVE, INC., Appellant, v. Ronald BURKE, Appellee.

No. 01-06-00694-CV.

No. 01-07-00126-CV.

Court of Appeals of Texas, Houston (1st Dist.).

June 21, 2007.

Clifford L. Harrison, Harrison, Bettis, Staff, McFarland & Weems, L.L.P., Houston, for Appellant.

John C. Hampton, D. Matthew Freeman, Matt Freeman & Associates, Houston, for Appellee.

Panel consists of Justices NUCHIA, HANKS, and BLAND.

OPINION

JANE BLAND, Justice.

In this nonsubscriber negligence case, LMC Complete Automotive, Inc. (LMC) appeals a jury verdict and judgment of $155,000 in favor of its employee, appellee Ronald Burke. LMC contends (1) the evidence is legally insufficient to support the jury's negligence finding, (2) Burke's causation evidence is not sufficiently reliable to support the jury's negligence finding, and (3) the trial court abused its discretion in excluding evidence that Burke received compensation for his injury from collateral sources. We conclude that the evidence is legally sufficient and sufficiently reliable to support the jury's negligence finding, and the trial court did not abuse its discretion in excluding the evidence that Burke received compensation for his injury from collateral sources. We therefore affirm the trial court's judgment.

We also address LMC's motion, filed in this court, to waive or decrease the security required to suspend enforcement of the trial court's judgment on appeal, as well as LMC's contest of the trial court's findings of fact on the security issue. With respect to the amount of a supersedeas bond, we conclude that the record does not support the trial court's findings that LMC has sufficient net worth to secure the full amount of the judgment while the case is on appeal. Pursuant to Rule 24 of the Texas Rules of Appellate Procedure, we set LMC's net worth at $149,736.04, vacate the trial court's July 25, 2006 order denying LMC's motion to decrease the security required to suspend enforcement of the judgment, and order that the security for supersedeas for LMC be set at $74,868.02, fifty percent of LMC's net worth. Our order entered on February 15, 2007, staying the enforcement of the judgment in this case, will remain in effect for fifteen days after the date this opinion is issued to allow the parties to seek further review of our security determination. We dismiss LMC's second appeal, related to the trial court's findings of fact on the security issue, for want of jurisdiction.

Background

LMC is an auto repair shop. Burke worked for LMC as a body repair man. Mario Ramirez also worked for LMC, as a porter, and his job duties included cleaning and moving vehicles around the shop.

We recite the facts, which were hotly contested at trial, in a light favorable to the jury's verdict. In April 2003, Burke was working on a vehicle at LMC when he heard a noise. Burke looked up and saw another vehicle rolling out of the shop with the driver's side door open. Ramirez was hanging onto the door and the steering wheel and the vehicle was dragging him outside. Apparently, Ramirez was attempting to push the vehicle into the shop by himself when he lost control of it. Burke ran in front of the vehicle and stopped it by hand. Burke immediately experienced pain in his back, but he initially thought that he had just strained some muscles. Ramirez, Burke, and a third employee then pushed the vehicle into the shop. Burke told a manager about the incident and went home immediately because of his back pain. Burke eventually sought medical treatment, including two back surgeries, due to the injury.

Before the incident with the vehicle, Burke witnessed Ramirez engage in other negligent acts while working at LMC. On one occasion, Ramirez drove an SUV into the shop too quickly, but Burke managed to stop him just before he ran over another employee. On another occasion, Ramirez placed an open can of gasoline near an employee who was welding. Burke quickly moved the can to prevent an accident. On a third occasion, Burke saw Ramirez using an electric buffer with the extension cord running through a pool of water. Burke warned Ramirez to move the extension cord but he continued buffing. Burke reported each of these incidents to management at LMC, but he never saw anyone say anything to Ramirez. LMC did not hold organized safety meetings.

Negligence

In its first issue, LMC contends the evidence is legally insufficient because no evidence exists to support the jury's negligence or proximate cause findings. In its second, related issue, LMC contends that it was entitled to a JNOV because the treating physician's expert testimony as to the cause of Burke's injuries is unreliable.

A. Standard of Review

The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.

B. Nonsubscribers and Negligence

LMC is a nonsubscriber to the Texas Workers' Compensation Act. TEX. LAB. CODE ANN. § 406.002 (Vernon 2006) ("Except for public employers and as otherwise provided by law, an employer may elect to obtain workers' compensation insurance coverage."). "In an action . . . against an employer who does not have workers' compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment." Id. § 406.033(d) (Vernon 2006). Contributory negligence is not a defense in nonsubscriber cases. Id. § 406.033(a)(1); Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex.2000).

A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). "Proximate cause requires both cause in fact and foreseeability." Id. Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act creates for others. Id. "Foreseeability does not require that a person anticipate the precise manner in which injury will occur once he has created a dangerous situation through his negligence." Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). "Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred." Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995); accord Henry v. Houston Lighting & Power Co., 934 S.W.2d 748, 750 (Tex.App.-Houston [1st Dist.] 1996, writ denied).

An employer has a duty to use ordinary care in providing a safe workplace. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975). "It must, for example, warn an employee of the hazards of employment and provide needed safety equipment or assistance." Elwood, 197 S.W.3d at 794; Farley, 529 S.W.2d at 754. An employer must furnish safe machinery and instrumentalities with which its employees are to work and provide adequate assistance under the circumstances for the performance of required work. See Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 186 n. 45 (Tex.2004); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995); Farley, 529 S.W.2d at 754. An employer must also instruct employees in the safe use and handling of products and equipment used in and around an employer's premises or facilities, and adequately hire, train, and supervise employees. Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex.App.-Dallas 2005, pet. denied); Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

An employer, however, is not an insurer of its employees' safety. Elwood, 197 S.W.3d at 794; Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). An employer owes no duty to warn of hazards that are commonly known or already appreciated by the employee and no duty to provide equipment or assistance that is unnecessary to the job's safe performance. Elwood, 197 S.W.3d at 794-95. An employer also has no duty to provide assistance if an employee's injury results from performing the same character of work that employees in that position have always done, and there is no evidence that the work is unusually precarious. Id. at 795; Werner, 909 S.W.2d at 869.

C. Evidence of Negligence

The evidence Burke presented is legally sufficient to support the jury's negligence finding. The evidence is undisputed that both Ramirez and Burke were employees of LMC in April of 2003.

Burke's status as an employee of LMC gave rise to LMC's duty to exercise ordinary care in providing a safe workplace. See Elwood, 197 S.W.3d at 794; Farley, 529 S.W.2d at 754. Ramirez was acting in the course and scope of his employment when he was pushing the vehicle because his duties included moving vehicles around LMC's premises. The evidence is also undisputed that LMC did not hold safety meetings or train its employees on how to move vehicles. The jury was entitled to conclude that Ramirez was negligent in losing control of a vehicle while standing outside the vehicle to move it, and in failing to use ordinary care to...