Perez v. Embree Const. Group, Inc.

• Decision Date: 27 June 2007
• Docket Number: No. 03-05-00292-CV.,03-05-00292-CV.
• Parties: Alejandro PEREZ and Bobbie Perez, Appellants, v. EMBREE CONSTRUCTION GROUP, INC., Appellee.
• Court: Texas Court of Appeals

228 S.W.3d 875

Alejandro PEREZ and Bobbie Perez, Appellants, v. EMBREE CONSTRUCTION GROUP, INC., Appellee.

No. 03-05-00292-CV.

Court of Appeals of Texas, Austin.

June 27, 2007.

Theodore A. Hargrove III, San Angelo, for Int. Party.

Joe Alfred Izen, Jr., Bellaire, for Appellant.

S. Vance Wittie, Sedgwick, Detert, Moran & Arnold LLP, Dallas, for Appellee.

Before Chief Justice LAW, JUSTICES PURYEAR and HENSON.

OPINION

DIANE HENSON, Justice.

Alejandro Perez and his wife, Bobbie Perez,¹ brought suit against Embree Construction Group, Inc. to recover damages for personal injuries suffered by Perez when he fell from the roof of a building located on a construction site in San Angelo, Texas. At the time of the fall, Perez was employed by Kent Elliott Roofing, a roofing subcontractor hired by Embree. Embree served as the general contractor on the project. Perez brought suit against Embree on the basis of negligence. Mrs. Perez brought a loss of consortium claim.

On December 19, 2003, the trial court granted a partial summary judgment in favor of Embree, dismissing Perez's negligence claims that involved allegations that Embree owed a duty of care to Perez under its contract with Kent Elliott and that Embree had assumed a general duty of care to Perez through control-in-fact of the workplace. The matters resolved by the partial summary judgment are not at issue in this appeal. The trial court allowed the trial to go forward on the limited theory that Embree owed a duty to Perez to stop work if it became aware that Kent Elliott was routinely violating safety regulations. At the close of Perez's case, the trial court directed a verdict for Embree, finding as a matter of law that Embree did not have a duty to stop work. The trial court entered a final judgment that Perez take nothing and denied his motion for new trial. Because Mrs. Perez's loss of consortium claim was derivative of Perez's cause of action, her claim failed as well.

Perez raises four points of error on appeal. He contends that the trial court erred in (1) granting a directed verdict in favor of Embree, (2) striking his claims for negligence per se and punitive damages, (3) striking his expert witness on premises safety and federal regulations, and (4) denying his motion for new trial without a hearing.

We affirm the district court's directed verdict. We further hold that the trial court did not abuse its discretion in striking Perez's claims for negligence per se and punitive damages or denying his motion for new trial and that the trial court's exclusion of Perez's expert witness testimony was harmless error.

BACKGROUND

On August 16, 1999, Perez fell from the roof of an Eckerd Drug Store that was under construction in San Angelo, Texas. Perez's employer, Kent Elliott Roofing, had been hired to do roofing work on the Eckerd project by Embree, the general contractor. Kent Elliott employees had been working on the roof of the building since August 9, 1999.

The roof was surrounded on three sides by a parapet wall, leaving the fourth side unprotected.² At the time of the accident, Perez was assigned to cut insulation along the unprotected edge of the roof. While cutting the insulation, Perez discovered that his knife would not cut completely through the material, so he attempted to break the insulation off manually. While doing so, Perez lost his balance and fell approximately 26 feet to the ground below, landing on a pile of construction materials and severely fracturing his hip, among other injuries.

Embree contends that at the time of the fall, Kent Elliott employees used the parapet wall for fall protection on three sides of the roof, while a safety-monitoring system served as fall protection along the unprotected edge.

Three days after Perez's fall, an Occupational Safety and Health Administration (OSHA) inspector came to the job site to investigate the accident. When questioned about the fall protection in place at the time of the accident, Kent Elliott employees produced a safety harness and rope, claiming that when the safety harness was in use, it was secured by another worker holding the end of the rope.

Perez testified that he was never given a safety harness to wear on the Eckerd job site and was not aware of any flags marking the area near the unprotected edge of the roof. Perez also testified that he did not see a safety monitor on the roof on the day of the fall and did not receive any safety warnings while working near the unprotected edge.³ Perez stated that he did not know of anyone working as a safety monitor on any of the crews he had worked on for Kent Elliott. In his deposition, Perez stated that he did not notice any Kent Elliott employees wearing a safety harness held by another worker.

Toby Galindo, Kent Elliott's project manager, was working on the roof at the time of the accident. Galindo testified that he was "sure there was" a safety monitor on the roof based on his experience working for Kent Elliott, but he was uncertain who it was at the time of Perez's fall. Galindo also testified that he could not remember whether there were flags marking the unprotected edge of the roof at the time of the fall.

Billy Moffett, Embree's superintendent on the Eckerd project, stated in his deposition that he spent the majority of his time on the job site working in his trailer. Moffett also stated that he was not familiar enough with OSHA fall-protection regulations to know whether a fall-protection system was compliant. Galindo testified that he informed Moffett prior to beginning work that Kent Elliott would use a safety-monitoring system as fall protection.

The trial court took judicial notice of the OSHA regulations regarding approved fall-protection procedures. While the exact slope of the roof of the Eckerd project is not clear, the parties agree that the roof sloped at a rate no greater than one inch per foot, making it a low-slope roof for OSHA regulation purposes. See 29 C.F.R. § 1926.500(b) (2006). The OSHA-approved fall-protection procedures for low-slope roofs include a guardrail system and a combination of a warning-line and safety-monitoring system. Id. § 1926.501(b)(10) (2006). A safety-monitoring system in the absence of a warning line is not an approved fall-protection procedure. Id.

Galindo testified that prior to the accident, he told Moffett that Kent Elliott's employees should not work on the roof while it had an unprotected edge. According to Galindo, Moffett insisted that Kent Elliott continue work on the roof anyway. Moffett denies this conversation and claims that he voiced safety concerns regarding the unprotected edge to Galindo, and that Galindo downplayed his concerns.

On September 3, 2004, Perez attempted to amend his petition to add claims for negligence per se and punitive damages on the basis of gross negligence, although an amended pleading deadline of December 12, 2003, had been set by the trial court's scheduling order. The trial court granted Embree's motion to strike the amendment.

The court's scheduling order also set September 30, 2003, as the deadline for designating expert witnesses. On September 10, 2004, Perez made a formal designation of Jim Sealy as an expert witness regarding federal safety regulations and industry standards for complying with those regulations. Perez filed a motion to enlarge time for an expert-witness designation, which the trial court denied. The trial court granted Embree's motion to exclude Sealy's expert-witness testimony on the basis of untimely designation.

DISCUSSION

The Directed Verdict

In Perez's first issue, he argues that the trial court erred in granting Embree's motion for directed verdict because Embree exercised sufficient control over Kent Elliott's work to create a fact issue with respect to whether Embree owed a duty to Perez to stop work if it became aware of routine safety violations.

In reviewing a directed verdict, we must determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). We examine the evidence in the light most favorable to the party suffering an adverse judgment. Id.

Generally, a general contractor does not have a duty to see that a subcontractor performs work in a safe manner. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). However, a limited duty arises if a general contractor retains control over a subcontractor's methods of work or operative details, so that the subcontractor is not entirely free to do the work in his own way. Koch Refining Co. v. Chapa, 11 S.W.3d 153, 154 (Tex.1999). A general contractor's "duty of reasonable care is commensurate with the control it retains" over the subcontractor. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 355 (Tex.1998). General supervisory control that does not relate to the activity causing the injury is not sufficient to create a duty. Hagins v. E-Z Mart Stores, 128 S.W.3d 383, 388-89 (Tex.App.-Texarkana 2004, no pet.).

A general contractor that retains control over safety matters owes a duty to a subcontractor's employees if the general contractor "is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety." Mendez, 967 S.W.2d at 357. Where an injury is caused by a subcontractor's routine disregard of safety guidelines and policies, a Mendez duty of care arises if the general contractor exercised control over the safety procedures related to the injury. See id; Hagins, 128 S.W.3d at 389; Hanna v. Vastar Res., Inc., 84 S.W.3d 372, 377 (Tex.App.-Beaumont 2002, no pet.). Therefore, Embree owed Perez a Mendez duty of care if it exercised control over Kent Elliott's fall-protection procedures.

The Texas Supreme Court has generally looked to whether a general contractor approved or required specific safety procedures in order to determine if the general contractor exercised control over...