Phelan v. Lopez
| Decision Date | 05 December 1985 |
| Docket Number | No. 09,09 |
| Citation | 701 S.W.2d 327 |
| Parties | Michael PHELAN, et al., Appellants, v. James Clyde LOPEZ, Appellee. 84 319 CV. |
| Court | Texas Court of Appeals |
James Clyde Lopez brought suit as a result of injuries he suffered in two separate accidents. The cause of both accidents and the resulting injuries were hotly contested. The first accident occurred on October 12, 1978. Mr. Lopez was working at a construction site in Beaumont, Texas, where a grocery store was being built. The property and the building being built were owned by Michael and Pat Phelan. Mr. Lopez alleged that while working on a raised mobile platform, a Mite-E-Lift, a wheel of the Mite-E-Lift fell into a utility hole in the building foundation. The Mite-E-Lift toppled, throwing Mr. Lopez to the ground. He claimed he suffered a knee injury and a back injury. He brought suit against the Phelans and their architect, Thomas C. McKnight, alleging various acts of negligence as to each.
The second accident occurred in Port Arthur, Texas on February 26, 1980. Mr. Lopez was working at the Port Arthur Civic Center which was under construction. Once again Mr. Lopez was on top of a Mite-E-Lift when a pen sheared and the platform suddenly fell. He claimed he suffered neck and back injuries as a result of this accident. He brought suit against the owner, distributor and manufacturer of the Mite-E-Lift alleging negligence and product liability.
Trial began and during the trial, Mr. Lopez settled with all the defendants sued as a result of the second accident. The jury found Mr. Lopez, the Phelans and Mr. McKnight negligent regarding the first accident. They failed to find that McKnight's negligence was a proximate cause of the injuries. Based upon the jury's answers the trial court entered judgment in favor of Mr. Lopez against the Phelans. The Phelans bring forth eleven points of error.
The Phelans' first point of error states:
"The trial court erred in overruling Phelans' objections to the court's charge because there was no evidence that on the occasion in question, the Phelans were under a duty to supervise the work of an employee of a subcontractor."
The special issue in question was:
SPECIAL ISSUE NO. 1
Find from a preponderance of the evidence which of the defendants, if any, was negligent with respect to the accident of October 12, 1978. Answer "yes" or "no" on each line in Column 1. If any of your answers are "yes" in Column 1, was any such negligence a proximate cause of the occurrence in question? Answer "yes" or "no" on the corresponding line of Column 2.
In answering this Issue you shall consider only the following acts or omissions, if any, which plaintiff alleges were negligence on the part of defendant McKnight and defendants, Mike Phelan and Pat Phelan:
(1) Failure to provide covers and/or barricades for the holes which were left in the floor of the building;
(2) Failure to properly supervise and coordinate construction activities on the premises;
(3) Failure to provide a reasonably safe place to work;
COLUMN 1 COLUMN 2
Negligence Proximate Cause
THOMAS MCKNIGHT
----------------------------
(1) Covers and/or barricades Yes No
---------- ---------------
(2) Supervise and coordinate No
---------- ---------------
(3) Safe place to work No
---------- ---------------
MIKE PHELAN AND PAT PHELAN
----------------------------
(1) Covers and/or barricades Yes No
---------- ---------------
(2) Supervise and coordinate Yes Yes
---------- ---------------
(3) Safe place to work Yes No
---------- ---------------
The Phelans' objections to the issue, which are relevant to this point of error, were:
Both the objections to the charge and this point of error urge no evidence points. It was undisputed that the Phelans were the owners of the property and the building being constructed. It was hotly disputed as to what part the Phelans played in the construction process or whether the Phelans exercised any control over the premises while under construction.
An owner of land has a duty to use reasonable care to keep the premises under his control in a safe condition. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950). In Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985), our state adopted the RESTATEMENT (SECOND) OF TORTS sec. 414 (1977) which provides:
"One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care."
See also, Tovar v. Amarillo Oil Co., 692 S.W.2d 469 (Tex.1985).
There was no issue given the jury as to the extent of the Phelans' control, if any, over the work place. There was no specific objection to the lack of such an issue. When some, but not all, of a cluster of issues are necessary to sustain a ground of recovery are given and answered by the jury without objection or request, the trial court may make written findings on omitted issues raised by the evidence. If no written findings are made, the omitted issues are deemed to have been found by the court in such a manner to support the judgment. Harmes v. Arklatex Corp., 615 S.W.2d 177 (Tex.1981). Thus, the trial court is deemed to have found that the Phelans exercised some control over the property during the construction period. There is sufficient evidence to support this deemed finding. Point of error number one is overruled.
Points of error numbers two and three question the legal and factual sufficiency of the evidence of the jury's finding of proximate cause. In this regard, the Phelans argue that "conceptually the jury's answers to the liability issue do not make sense. ... if the Phelans' negligence in failing to provide covers and barricades for the holes and negligence in failing to provide a safe place to work were not proximate causes of the occurrence, then their failure to supervise and coordinate could not have been either." This court may not look to the answers of other issues for the purpose of determining whether an answer to a particular issue has support in the evidence. C & R Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). There was extensive testimony about the types of supervisors on a construction site and their respective duties and responsibilities. There was testimony that proper coordination and supervision could have avoided the "open hole" problem. It is reasonable to infer from all of this testimony that the Phelans' failure to supervise and coordinate the construction work was a proximate cause of the accident. Proximate cause, as any other ultimate fact, may be established and inferred from the circumstances surrounding the event. Whitman v. Campbell, 618 S.W.2d 935 (Tex.App.--Beaumont 1981, no writ). Points of error numbers two and three are overruled.
The next point of error states:
"The trial court erred in overruling Phelans' objections to the charge and denying their requested instruction regarding proximate cause because its submission of the definition of proximate cause contained language which was confusing to the jury."
The crux of this argument is that it was reversible error for the trial court to use the term "new and independent cause" in its definition of proximate cause without defining it. The Phelans properly objected to the failure of the trial court to include a definition of "new and independent cause" and tendered a definition which was refused by the court. They allege the error was harmful in that it was a source of confusion and the jury was confused as to the definition of proximate cause.
It has been held several times that when the term "new and independent cause" is used, it must be defined. Texas & N.O.R. Co. v. Warden, 107 S.W.2d 451 (Tex.Civ.App.--El Paso 1937, writ dism'd); Railway Express Inc. v. Gaston, 91 S.W.2d 883 (Tex.Civ.App.--El Paso 1936, writ dism'd); Texas & P. Ry. Co. v. Mercer, 127 Tex. 220, 90 S.W.2d 557 (1936). However, in none of these cases, was the failure to define the phase held to be reversible error. In Young v. Massey, 128 Tex. 638, 101 S.W.2d 809 (1937) we find the following language:
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