Moss v. WASTE MANAGEMENT OF TEXAS, INC.

• Decision Date: 13 October 2009
• Docket Number: No. 01-07-01106-CV.,01-07-01106-CV.
• Parties: Kenneth W. MOSS and Michelle Moss, Appellants, v. WASTE MANAGEMENT OF TEXAS, INC., Appellee.
• Court: Texas Court of Appeals

305 S.W.3d 76

Kenneth W. MOSS and Michelle Moss, Appellants, v. WASTE MANAGEMENT OF TEXAS, INC., Appellee.

No. 01-07-01106-CV.

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

August 20, 2009.

Rehearing Overruled October 13, 2009.

Anthony L. Bannwart, Bannwart & Associates, P.C., Houston, TX, for Appellants.

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

Panel consists of Justices JENNINGS, HANKS, and BLAND.

OPINION

JANE BLAND, Justice.

This appeal arises from a jury's verdict in favor of a property owner, sued for its negligence after a truck-pedestrian accident occurred on its premises. A Rustin Transportation Company (Rustin) employee, driving a company eighteen-wheeled truck, struck and injured Kenneth Moss, a fellow employee, while Moss directed Rustin trucks at a waste transfer facility owned by Waste Management of Texas, Inc. (Waste Management). Moss sued Waste Management, the premises owner for negligence.¹ A jury found that Waste Management did not control Rustin's activities. Based on the jury's finding, the trial court ordered that Moss take nothing in his suit against Waste Management. Moss appeals the jury verdict and judgment, contending that (1) the trial court erred in predicating the liability and damages issues on whether Waste Management exercised control over Rustin's activities, and (2) the jury's right-to-control finding is against the great weight and preponderance of the evidence. We conclude that the trial court did not err in submitting the right-to-control issue and that factually sufficient evidence supports the jury's verdict. We therefore affirm.

Background

Facts giving rise to Moss's suit

Waste Management works with other private and municipal waste disposal operations to collect garbage. In connection with these activities, Waste Management owns transfer stations—in this case, the Koenig Street station—where waste disposal truck drivers dump their loads. These strategically placed transfer stations minimize the number of long trips to outlying landfills and allow the trucks to quickly return to their routes.

As the facility collects waste, operators weigh, sort, and compact it, then load it onto trucks and deliver it to landfills. One such operator, Rustin, contracts with Waste Management to load and haul processed garbage from the Koenig Street station to landfills outside Houston.

Under the Loading and Transportation Service Agreement between Waste Management and Rustin (the contract), Rustin agreed to serve as Waste Management's preferred transporter for its loading and shipment requirements at certain locations, including the Koenig Street facility. Rustin agreed to provide personnel, tractor-trailer units, and equipment sufficient to load and transport up to 2,500 tons of waste delivered daily to the facilities and to render its services in a legal and safe manner. The contract declares that Rustin is responsible for "initiating, maintaining, and supervising all health and safety precautions, requirements and programs for its employees, subcontractors, vendors and other persons in connection with the services." Waste Management retained the right to "inspect, review, and monitor" Rustin's performance under the agreement to ensure satisfactory compliance.

As an employee of Rustin, Moss worked at the Koenig Street station as a "spotter," directing trucks into the bays as they entered the station and conducting periodic inspections to ensure that the garbage dumped at the station did not contain hazardous waste. In late February 2004, one of Rustin's drivers struck Moss while backing his truck into the transfer station, causing Moss serious injuries.

Proceedings in the trial court

Moss sued Waste Management, asserting that it breached its duty of care to Moss by failing to

• provide adequate warning to employees of contractors working at its facility;

• adequately supervise activities on its premises;

• adequately control or limit the volume of garbage and traffic entering the facility; and • design the facility so that it could safely accommodate the volume of garbage and traffic it handles.

The parties tried the case before a jury. The jury heard disputed evidence concerning the extent to which Waste Management exercised authority over the transfer station, but none that Waste Management deviated in any material way from the oversight activities described in the contract. Both Waste Management and Rustin managers consistently testified that Rustin alone was responsible for controlling traffic at the transfer station, training its drivers and spotters, and hauling trash to the landfills.

At the close of evidence, the trial court prepared the jury charge with the parties' participation. Over Moss's objection, the court's first question to the jury inquired whether Waste Management had or exercised any right of control over Rustin's activities.² The question read:

Question No. 1:

Did Waste Management of Texas, Inc., exercise or retain some control over the manner in which Rustin Transportation performed its duties and responsibilities at the WRS Transfer Station, other than the right to order the work to start or stop or to inspect progress or receive reports?

Answer "Yes" or "No":

The jury answered "no." Because the trial court predicated the remaining questions on an affirmative response to Question No. 1, the jury did not answer any questions about liability or damages. The trial court then rendered judgment that Moss take nothing in his suit against Waste Management.

Discussion

Jury Charge

Moss first contends that the trial court erred in submitting a question to the jury predicating liability and damages upon Waste Management's right to control the manner in which Rustin performed its duties and responsibilities. Specifically, Moss contends that the trial court erred in submitting Question No. 1 because he brought a direct negligence action against Waste Management based on Waste Management's operation and management of the Koenig Street waste transfer station, not a premises liability claim against Waste Management.

Error preservation

As a preliminary matter, we address Waste Management's claim that Rustin waived this issue by merely objecting to the submission of the question as "inappropriate" without also tendering a substantially correct question. Texas Rule of Civil Procedure 274 provides that "a party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection." TEX.R. CIV. P. 274. Whether a party must do more than object to preserve an issue for appeal, however, depends on the nature of the objection. When a party, like Moss, contends that another party's proposed question be omitted entirely, that party is not required to tender a substantially correct definition or question. See Turner v. Precision Surgical, L.L.C., 274 S.W.3d 245, 248 n. 2 (Tex.App.-Houston 1st Dist. 2008, no pet.). Moss's objection preserved his contention for appellate review.

Standard of review for jury charge issues

We review the trial court's submission of instructions and jury questions for an abuse of discretion. European Crossroads' Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 54 (Tex.App.-Dallas 1995, writ denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A trial court has wide discretion in submitting instructions and jury questions. Howell Crude Oil Co. v. Donna Ref. Partners, Ltd., 928 S.W.2d 100, 110 (Tex.App.-Houston 14th Dist. 1996, writ denied).

Right to control

Moss asserts that the trial court erred in submitting Question No. 1 to the jury because his cause of action against Waste Management is one for direct negligence, not premises liability. Under a premises liability theory, the occupier of land has a duty to use reasonable care to keep the premises under its control in a safe condition, and may be subject to liability for negligence in situations arising from a premises defect as well as those arising from an activity or instrumentality. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.2002); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985); see also Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 697 n. 11 (Tex.App.-Houston 14th Dist. 2004, pet. denied) (explaining that premises liability category is for those defects that existed on premises when independent contractor entered on property or that were created through some means unrelated to independent contractor's activity).

Absent a duty, however, Waste Management cannot be held liable for Moss's injuries as a matter of law. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987)). The pertinent issue, then, is whether Waste Management owed Moss a duty to use reasonable care in preventing the type of accident that resulted in Moss's injuries.

Premises owners like Waste Management have no duty to see that independent contractors like Rustin use reasonable care in performing their work unless they exercise control over the independent contractor's activity. Clayton W. Williams, Jr. v. Olivo, 952 S.W.2d 523, 527-28 (Tex.1997); Redinger, 689 S.W.2d at 418. A plaintiff seeking to prove that the property owner is liable for a negligent act therefore must prove that (1) the owner had a contractual right of control or exercised actual control, in a way that extends to the operative detail of the contractor's work, and (2) a nexus exists between the owner's retained control and the activity that caused the plaintiff's injury. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex.2008); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex.App.-Houston 14th Dist. 2007, pet. denied).

Moss contends that, as the owner and...