Ortiz v. Furr's Supermarkets

• Decision Date: 12 May 2000
• Docket Number: No. 08-98-00202-CV,08-98-00202-CV
• Citation: 26 S.W.3d 646
• Parties: (Tex.App.-El Paso 2000) JAVIER ORTIZ, Appellant/Cross-Appellee, v. FURR'S SUPERMARKETS, Appellee/Cross-Appellant,
• Court: Texas Court of Appeals

Page 646

26 S.W.3d 646 (Tex.App.-El Paso 2000)

JAVIER ORTIZ, Appellant/Cross-Appellee, v. FURR'S SUPERMARKETS, Appellee/Cross-Appellant,

No. 08-98-00202-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

May 12, 2000

Rehearing Overruled July 26, 2000.

Appeal from the 210th Judicial District Court of El Paso County, Texas (TC# 96-4624) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

OPINION

RICHARD BARAJAS, Chief Justice

This is a double appeal from a personal injury suit. For the reasons stated below, we reverse and render in part and reverse and remand in part.

I. SUMMARY OF THE EVIDENCE

A. Factual History

Appellant/Cross-Appellee, Javier Ortiz, was employed by S&M Cleaning ("S&amp M").¹ S&M provided nightly floor mopping, buffing, and waxing services at several of Appellee's/Cross-Appellant's, Furr's, stores. During the night shift of July 26-27, 1996, Ortiz was assaulted by two of Furr's night stockers, Ryan Skowronski and Arnold Plaza. Ortiz was pushed backward by Skowronski and then pushed forward by Plaza which caused him to fall to the floor and injure his back. Skowronski and Plaza jumped on Ortiz and then walked away laughing and joking, leaving Ortiz on the floor. Ortiz complained of constant back pain, pains in his neck and head, and sought treatment. Ortiz's physician testified that the assault caused a neck and back injury resulting in a permanent physical impairment.

B. Procedural History

Ortiz filed suit against Furr's and S&M on December 6, 1996, alleging negligence, gross negligence, assault and battery, negligent supervision, and negligent retention.² S&M was subsequently non-suited. The case proceeded to trial and the jury rendered verdict for Ortiz, finding (1) he was a borrowed servant of Furr's; (2) Furr's was negligent as a non-subscriber under the Workers' Compensation Act; and (3) Furr's negligently retained and supervised their employees. The jury also found that Ortiz' injury was attributable in part to the negligence of S&M. The trial court rendered judgment for Ortiz against Furr's for $145,034, after reducing damages awarded by the jury by fifty percent (50%), the percentage of responsibility the jury attributed to S&M, and an additional five percent (5%), because of S&M's settlement. See Tex. Civ. Prac. & Rem. Code Ann. § 33.012(b)(2)(A) (Vernon 1997). Both parties filed notices of appeal.

II. DISCUSSION

Ortiz presents two issues on appeal: (1) Whether the trial court erroneously applied the Texas Proportionate Responsibility Act to decrease the damages award to the extent that such damages were awarded under the Texas Workers' Compensation Act for "non subscriber" negligence; and (2) Whether there was legally sufficient evidence to sustain the jury's finding that S&M Cleaning was partially liable for the assault so as to justify a reduced damages award. Furr's raises five issues on appeal: (1) Whether the evidence is sufficient to sustain a finding that Ortiz was a borrowed servant so as to support recovery under Ortiz's non-subscriber negligence theory brought under the Workers' Compensation Act; (2) Whether there was factually and legally sufficient evidence to support the award for past and future mental anguish; (3) Whether the trial court erred in excluding certain evidence concerning Ortiz's criminal record; (4) Whether the trial court erred in refusing Furr's requested jury instruction pertaining to Ortiz's independent contractor status; and (5) Whether there was factually and legally sufficient evidence to support the award for loss of earnings in the past. We begin by addressing Furr's issues.

A. Furr's Appeal

We begin with a discussion of the legal and factual sufficiency standard of review, which encompasses Furr's Issues No. One, Two and Five. We follow with a discussion of the abuse of discretion standard of review, which encompasses Furr's Issues No. Three and Four.

1. Legal and Factual Sufficiency Standard of Review

In considering a "no evidence" legal insufficiency issue, we consider only the evidence and inferences that tends to support the jury's findings and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992); Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 412 (Tex. App.--El Paso 1994, writ denied). If more than a scintilla of evidence supports the questioned finding, the "no evidence" issue fails. See Tseo v. Midland Am. Bank 893 S.W.2d 23, 25 (Tex. App.--El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex. App.--El Paso 1994, writ denied).

An "insufficient evidence" or factual insufficiency issue involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. The test for factual insufficiency issues is set forth in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In reviewing an issue asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex. App.--El Paso 1981, no writ). The jury's finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. See id. Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained.

a. Borrowed Servant Doctrine

In Issue No. One, Furr's argues there was no evidence, or factually insufficient evidence, that Ortiz was its borrowed servant at the time of the alleged assault.

Texas courts recognize that the general employee of one employer may become the special employee or "borrowed servant" of another employer. See Sparger v. Worley Hosp., Inc. 547 S.W.2d 582, 583 (Tex. 1977). The "borrowed servant" doctrine is implicated when the nominal or general employer loans or supplies an employee to another, who is termed the special employer. See Rodriguez v. Martin Landscape Management, Inc., 882 S.W.2d 602, 604 (Tex. App.--Houston [1st Dist.] 1994, no writ). The issue of "right of control" is pivotal under the borrowed servant doctrine because the employer who has the right of control is exempted from common law liability. See Esquivel v. Mapelli Meat Packing Co., 932 S.W.2d 612, 614 (Tex. App.--San Antonio 1996, writ denied).

The test for determining whether a person is the employee of the original employer or of the borrowing employer is whether the employee is subject to the specific direction and control of the loaning or the borrowing employer. Id. If the employees remain under the control of their general employer in the manner of performing their services, they remain the employees of the general employer. See Producers Chem. Co. v. McKay, 366 S.W.2d 220, 225-26 (Tex. 1963). To determine whether an employee remains a general employee or becomes a borrowed employee, the fact finder determines whose work the employee is performing. The fact finder determines this by ascertaining who has the power to control and direct the employees in performing their work. See id., (citing Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909)).

Examples of the type of control an employer normally exercises include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. See Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277, 278-79 (Tex. 1990). The right of control is also determined by examining the nature of the general project, the nature of the work to be performed by the employees furnished, length of the special employment, and acts representing an exercise of actual control. See Producers Chem. Co., 366 S.W.2d at 226.

Ortiz testified that he was employed by S&M. He stated that S&M provided the buffing machines and tools used in performing his cleaning duties, that S&M paid his wages, that all of his tax information came from S&M, that he never received a paycheck from Furr's, that De La Rosa provided instructions in how to perform the details of his job and routinely checked on his performance, that he always considered S&M to be his employer, and that he "told Furr's employees that they weren't his boss and could not tell [him] what to do." On the night in question, Ortiz testified that no one told him to get to work or how to do his job.

The jury was charged, "Do you find from the preponderance of the evidence that on the occasion in question the plaintiff was acting as a borrowed employee of the defendant?" The jury answered the question in the affirmative. The restrictive language, "on the occasion in question," is very important. While evidence was introduced that on other occasions and at other Furr's stores, S&M employees were directed to perform certain tasks, there is no evidence that on the night in question, Ortiz was acting at the direction or under the control of a Furr's employee.

In reviewing the record and using the above standards of review, this Court concludes that there was no evidence for the jury to conclude that Ortiz was a borrowed employee of Furr's on the occasion in question. Accordingly, we sustain Furr's Issue No. One.³ We proceed with Furr's...