Niche Oilfield Serv. Llc v. Carter

• Citation: 331 S.W.3d 563
• Decision Date: 10 February 2011
• Docket Number: No. 14–09–00433–CV.,14–09–00433–CV.
• Parties: NICHE OILFIELD SERVICES, LLC, Appellant,v.John CARTER, Jr., Appellee.
• Court: Court of Appeals of Texas

331 S.W.3d 563

NICHE OILFIELD SERVICES, LLC, Appellant,

v.John CARTER, Jr., Appellee.

No. 14–09–00433–CV.

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

Feb. 10, 2011.

Thomas C. Wright, Jessica A. Zavadill, Mary Szilagyi Ovaitt, R. Russell Hollenbeck, Houston, for Appellant.Cory Daniel Itkin, Jason A. Itkin, Kevin Dubose, Houston, for Appellee.Panel consists of Chief Justice HEDGES and Justice BOYCE.

OPINION

WILLIAM J. BOYCE, Justice.

Niche Oilfield Services, LLC appeals from a judgment in favor of John Carter, Jr. in connection with a negligence action based on injuries Carter sustained while cleaning a vessel in navigable waters. We affirm the trial court's judgment.

Background

This appeal arises from an incident that occurred on March 13, 2006 while Carter was removing residue from a dry bulk tank on the supply vessel M/V PILOT TIDE in navigable waters. At the time of the incident, Carter was working inside the tank using a powerful vacuum hose connected to a three-axle truck parked on a dock adjacent to the vessel.

The M/V PILOT TIDE was owned and operated by Tidewater Marine, LLC, which hired Southern Tank Specialists to clean it. Southern Tank employed Carter as part of its five-man cleaning crew. Southern Tank hired Niche to provide a vacuum truck called a “Gap–Vac” for use in cleaning the vessel. Niche employed the Gap–Vac's driver and operator, Jerry Dickens.

The dry bulk tank was approximately 12 feet deep and was situated below the vessel's main deck. It was fitted with a floor-to-ceiling internal ladder accessible by a 24–inch manhole on the deck.

Dickens parked the Gap–Vac on the dock about 25 to 50 feet away from the vessel with the back of the truck facing the vessel. A vacuum hose ran from the back of the truck up and over the vessel's side rail, across the deck, and through the manhole down into the tank where Carter was working. Dickens operated the Gap–Vac from a control panel located next to a shut-off valve on the back of the truck.

Loud noise generated by the Gap–Vac precluded verbal communication with Dickens and necessitated hand signals. From his lower position on the dock, Dickens could not see over the rail to observe the tank or the manhole; accordingly, two Southern Tank employees were positioned to relay hand signals to Dickens. One Southern Tank employee was designated as the “hole watch” stationed next to the manhole. A second Southern Tank employee, Jamie Andrews, was designated as the “rail watch” stationed at the vessel's side where Dickens could see him from the dock.

The incident occurred after rain began falling during the cleaning operation. To prevent rain from entering the tank where Carter was working, a tarp was draped over three five-gallon buckets placed around the manhole. The tarp was sucked into the manhole while Carter was using the Gap–Vac's vacuum hose at the bottom of the tank; the tarp cut off Carter's air supply as the vacuum simultaneously sucked oxygen from the tank.

Carter became aware of the problem when he began having difficulty breathing and his ears started to pop. After looking up and seeing that the tarp had been sucked into the manhole, Carter climbed up the ladder and attempted without success to break the seal by pushing on the tarp. He climbed down, climbed back up, and tried without success to cut a hole in the tarp. Carter climbed back down the ladder to the bottom of the tank and then passed out while attempting to climb up the ladder a third time. He regained consciousness while lying at the bottom of the tank. By that time the suction had been released and the Southern Tank crew was removing the tarp. Carter subsequently underwent surgery and received other medical treatment for injuries he attributed to falling from the ladder inside the tank.

Carter sued Tidewater and Niche in July 2007, asserting that they acted negligently and that the vessel was unseaworthy. In his first amended petition, Carter asserted that “[t]his claim is maintained under the common law of Texas and/or the general maritime law of the United States.” Carter settled his claims against Tidewater before trial.

At trial, Carter contended that Niche acted negligently and proximately caused his injuries because (1) the Gap–Vac lacked a remote shutoff and a vacuum breaker; (2) Niche failed to train Dickens adequately; and (3) Dickens left his post at the back of the truck while Carter was working in the tank, which meant that Dickens was not in position to receive a signal from the rail watch and shut off the Gap–Vac immediately when trouble arose.

Evidence regarding Dickens's whereabouts during the incident was disputed at trial. Dickens testified that he was standing at the back of the truck near the vacuum shut-off while Carter was working in the tank. He testified that no one signaled to him on the day of the incident or otherwise informed him that there was a problem. Other testimony indicated that Dickens was not standing by the controls at the back of the Gap–Vac while Carter was working in the tank; therefore, he was unable to see or act on the rail watch's shut-off signal when the tarp was sucked into the manhole. In this version of events, Dickens's absence from his post prolonged the emergency until Lawson Midkiff, a Southern Tank supervisor, released the suction by cutting the vacuum hose with a knife.

In Question No. 1, the jury was asked whether Carter's injury was proximately caused by the negligence of Carter, Niche, Tidewater, and/or Southern Tank. The jury answered “no” as to Carter and “yes” as to the other entities. In answer to Question No. 2, the jury attributed 80 percent of the injury-causing negligence to Niche, 15 percent to Southern Tank, and the remainder to Tidewater. The jury awarded $810,000 in damages encompassing awards for past and future medical care, pain and mental anguish, lost earning capacity, and physical impairment.

The trial court signed a final judgment on February 27, 2009, in which it concluded that (1) Carter's claims are governed by general maritime law; (2) Niche is jointly and severally liable under general maritime law; and (3) Niche is entitled to a five percent reduction in the damage award under general maritime law based on the pretrial settlement and the jury's apportionment of liability to Tidewater.

In conformity with these conclusions, the trial court's final judgment awards damages of $769,500 in favor of Carter and against Niche, along with costs of court. Niche timely appealed.

Analysis

Niche raises four issues on appeal. First, it contends that the only evidence proffered to establish Dickens's absence from his post is inadmissible hearsay; therefore, Niche argues that the evidence is legally and factually insufficient to support the jury's “yes” answer as to Niche in Question No. 1 and its apportionment of responsibility to Niche in Question No. 2. Second, Niche contends that Carter's alternative negligence theories cannot support the jury's answers or the trial court's judgment. Third, Niche contends that a new trial is warranted based on the cumulative effect of the erroneous admission of hearsay statements. Fourth, Niche contends that the trial court erroneously computed the settlement credit to which Niche is entitled by applying maritime law instead of Texas law.

I. Standard and Scope of Review

A. Legal and Factual Sufficiency of the Evidence

Legal insufficiency challenges may be sustained only when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005) (citing Robert W. Calvert, “ No Evidence ” and “ Insufficient Evidence ” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960)).

We must consider evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Id. at 822. If the evidence allows only one inference, neither jurors nor the reviewing court may disregard that evidence. Id. “The traditional scope of review does not disregard contrary evidence in every no evidence review if there is no favorable evidence (situation (a) above), or if contrary evidence renders supporting evidence incompetent (situation (b) above) or conclusively establishes the opposite (situation (d) above).” Id. at 810–11. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. at 822. Accordingly, the ultimate test for legal sufficiency always must focus on whether the evidence would enable reasonable and fair-minded jurors to reach the verdict under review. Id. at 827. Legal sufficiency review in the proper light must credit favorable evidence if reasonable jurors could do so, and must disregard contrary evidence unless reasonable jurors could not do so. Id. The reviewing court cannot substitute its judgment for that of the trier of fact if the evidence falls within this zone of reasonable disagreement. Id. at 822.

In reviewing factual sufficiency, we must consider and weigh all the evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). We can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Id.

B. Admission of Evidence

A trial court's admission or exclusion of evidence is reviewed for abuse of discretion. See, e.g., In re J.P.B., 180 S.W.3d 570, 575 (Tex.2005). Reversal based on the erroneous admission of evidence is warranted only if a review of the entire record demonstrates that the error probably caused the rendition...