Robert E. McKee, General Contractor v. Patterson

• Decision Date: 30 June 1954
• Docket Number: No. A-4501,A-4501
• Citation: 271 S.W.2d 391,153 Tex. 517
• Parties: ROBERT E. McKEE, GENERAL CONTRACTOR, Inc. v. PATTERSON.
• Court: Texas Supreme Court

Page 391

271 S.W.2d 391

153 Tex. 517

ROBERT E. McKEE, GENERAL CONTRACTOR, Inc. v. PATTERSON.

No. A-4501.

Supreme Court of Texas.

June 30, 1954.

Rehearing Denied Oct. 20, 1954.

Cecil, Keith & Mehaffy, Beaumont, Henry D. Akin, Dallas, for petitioner.

Orgain, Bell & Tucker, Beaumont, for respondent.

CALVERT, Justice.

Petitioner, who was defendant in the trial court in a suit for damages filed by respondent as plaintiff, was the general contractor engaged to erect a public school building and gymnasium in Port Arthur. It engaged plaintiff's employer, Horn Brothers Company, as subcontractor to install certain folding partitions and bleachers in the gymnasium, and engaged J. A. Honeycutt as subcontractor to finish the gymnasium floor. It was the duty of defendant's general superintendent to schedule and coordinate the work of all subcontractors.

After Horn Brothers had begun their work in the gymnasium, they were called off of the job so that Honeycutt could finish, sand and polish the floor. When the floor work was finished, Horn Brothers' employees were called back to complete their work. These employees had been working on the slick floor for two weeks when a ladder, which the plaintiff had ascended to do certain overhead work, slipped, and the plaintiff fell to the floor and was injured. Suit followed.

The case was submitted to a jury on special issues, and the trial court's judgment in favor of the plaintiff was based on the following jury findings: (1) It was negligence to allow the finishing of the floor before completion of the carpenter work and such negligence was a proximate cause of plaintiff's injuries; (2) The finished floor was not reasonably safe for the type of work being done by plaintiff; the defendant failed to use due care to furnish plaintiff a reasonably safe floor on which to work, and such failure was a proximate cause of plaintiff's injuries; (3) The plaintiff was not negligent in climbing the ladder without having his helper hold the legs thereof; (4) The plaintiff was not negligent in failing to use a scaffold rather than the ladder; and (5) Plaintiff's injuries were not the result of an unavoidable accident.

The Court of Civil Appeals has affirmed the trial court's judgment. 263 S.W.2d 326.

By two points of error defendant presents three reasons, all properly preserved through motion for instructed verdict and motion for judgment notwithstanding the verdict, why, as a matter of law, the judgment of the courts below cannot stand, viz.: (1) There is no evidence that the defendant was guilty of negligence or breached any duty owing to the plaintiff; (2) The plaintiff voluntarily exposed himself to the hazards created by the slick floor, and (3) The evidence shows conclusively that the plaintiff was guilty of contributory negligence which was a proximate cause of his injuries.

Defendant's points of error pose the oft-recurring problem of liability for injuries growing out of open and obvious conditions. The problem is quite fully examined in an article by Keeton appearing in the University of Pennsylvania Law Review. 100 Pa.L.Rev. 629-648. The article raises many as yet unanswered questions.

A general contractor in control of premises owes a duty to the employees of subcontractors similar to that owed by an owner or occupier of land to his invitees. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853. See also annotation, 20 A.L.R.2d 868, 873 et seq.

There are two legal theories, wholly aside from the plaintiff's own negligence, for denying liability in a suit against an owner or occupier of land brought by an invitee for injuries growing out of open and obvious dangers thereon. One rests on the judicial concept that there is no breach of any duty the landowner owes to his invitees. The other arises out of the doctrine of volenti non fit injuria-voluntary encountering of risk-which is regarded as a defense to all negligence actions. In this state both theories are recognized. Actually, in their application to a given fact situation the two theories so completely overlap as to be almost indistinguishable. Actually, also, the defenses of voluntary exposure to risk and contributory negligence are frequently treated as one and the same. The failure of counsel to segregate and separately preserve all of these questions in pleadings in the trial courts and in briefs in the appellate courts, thereby offering the appellate courts no alternative except to decide the cases before them on the questions presented, and the tendency of the appellate courts to group them in analyzing the evidence, or to seek the most obvious and simplest solution, has led to much confusion in the decided cases. In greatly similar fact situations some are decided on the basis of no breach of duty by the defendant, some on the basis of voluntary encountering of risk by the plaintiff, some on the basis of the contributory negligence of the plaintiff, and some on the basis of two or more of these factors without distinction between them. This has led to what appears to be conflicting results.

The burden was on the plaintiff, Patterson, to prove his case. To discharge that burden it was necessary that he adduce evidence showing not only that the defendant was negligent in the sense that he created or maintained a condition on the premises giving rise to an unreasonable risk of injury to persons thereon, but also that as to the class of persons to which the plaintiff belonged there was a breach of duty. In the instant fact situation, for example, a trespasser could not establish liability of the defendant because he could not prove a breach of any duty the defendant owed him. It logically follows that we must first determine whether in this case there was evidence to support a finding of a breach of duty by the defendant before we reach the other questions presented by the defenses of voluntary exposure to risk and contributory negligence.

In determining whether a landowner is liable to an invitee for injuries sustained on the premises, the duty of the landowner is frequently phrased as one 'to exercise ordinary care to keep the premises in a reasonably safe condition' so that the invitee will not be injured. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074; Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, 628-629; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 615. But that is only a simplified statement of the duty, sufficient to meet the problems presented in the particular cases. There are certain qualifications not there expressed. It is now well established in this state that the duty as there expressed does not extend to those invitees who know or should know of the existence of the particular condition and who appreciate or should appreciate its dangers. Hall v Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497; A. C. Burton Co., Inc., v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Hausman Packing Co. v. Badwey, Tex.Civ.App., 147 S.W.2d 856, writ refused; Marshall v. San Jacinto Bldg., Tex.Civ.App., 67 S.W.2d 372, writ refused. What the qualification means, of course, is that inasmuch as the invitee has knowledge of the dangers there is no duty on the owner to warn him of them. It means also that if, having knowledge of the dangers, the invitee exposes himself to them he must take the premises as he finds them and there is no duty on the owner to protect him even by the use of reasonable precautions to eliminate the hazards.

In determining liability, under the defense of voluntary exposure to risk, it is said that one cannot recover for injuries sustained while voluntarily exposing himself to a danger which he either does or should fully realize and appreciate. 38 Am.Jur. 845 et seq., Negligence, Secs. 171-173; 65 C.J.S., Negligence, § 174, p. 848; Levlon v. Dallas Ry. & Terminal Co., Tex.Civ.App., 117 S.W.2d 876, writ refused; Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172, 174; Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607, 610.

The only apparent difference in the usual statement of the two theories for determining liability is that the defensive theory is made to rest on the voluntary character of the plaintiff's conduct in encountering the danger, whereas that qualifying word is rarely found in the statement of the no duty rule; and yet an examination of the cases reflects that where liability has been denied on the ground that dangers on the premises were open and obvious the facts show that the invitee voluntarily encountered them.

It would greatly simplify our procedural problems if we could follow the course suggested by the San Antonio Court of Civil Appeals in Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413, writ refused, n.r.e., and let this class of cases fall into the pattern of the usual negligence case, deciding the question of negligence and breach of duty on the part of the owner by looking only to his conduct and the question of voluntary exposure to risk on the part of the invitee by looking alone to his conduct, but to do so would be to ignore the well-settled law of this state, as expressed in the cases above cited, that there is no duty on the owner of premises to take precautions to protect his invitee from dangers on the premises of which the invitee is or should be fully aware and which he voluntarily encounters. To determine the existence and the extent of the owner's duty we must therefore look not only to the conduct of the owner but to the conduct of the invitee as well. It may well be that when we examine the conduct of the invitee for the purpose of deciding whether there has been a breach of duty by the owner we necessarily decide, as an incident thereto, the defensive issue of voluntary exposure to risk, with the result that a decision of the first question follows a decision of the second automatically. This was precisely the...