Shell Oil Co. v. Waxler

• Citation: 652 S.W.2d 454
• Decision Date: 03 March 1983
• Docket Number: No. 01-82-0010-CV,01-82-0010-CV
• Parties: SHELL OIL COMPANY, Appellant, v. Mitchell V. WAXLER, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 454

652 S.W.2d 454

SHELL OIL COMPANY, Appellant, v. Mitchell V. WAXLER, Appellee.

No. 01-82-0010-CV.

Court of Appeals of Texas,

Houston, (1st Dist.).

March 3, 1983.

Rehearing Denied May 12, 1983.

David B. Weinstein, Houston, for appellant.

John Milutin, Jack Martin, Houston, for appellee.

Before EVANS, C.J., and DOYLE and COHEN, JJ.

OPINION

EVANS, Chief Justice.

Shell Oil Company appeals from a judgment entered for the plaintiff, Mitchell V. Waxler, in an action to recover damages for personal injuries sustained while working on Shell's premises. The plaintiff, an employee of Brown & Root, Inc., was injured in November 1977, while doing construction work for Brown & Root at a refinery plant owned by Shell in Deer Park, Texas. Shell had contracted with Brown & Root to construct a portion of the expanded refinery improvements, and Brown & Root had employed Waxler as a heavy equipment operator. Waxler's complaint against Shell is that it negligently failed to protect him against a dangerous condition on its premises, resulting in his being trampled and severely injured by his co-employees as they were leaving the Shell job site.

Shell filed a cross action against Brown & Root, seeking contribution and indemnity, but took a non-suit of that action prior to trial. In response to special issues, the jury found that Shell failed to exercise ordinary care in making the premises a safe place for Waxler to work and in failing to inspect the premises. The jury also found that such omissions constituted a proximate cause of the occurrence in question; that the manner in which the workmen exited the job site created a dangerous condition, which Shell maintained; and that Shell either knew, or in the exercise of ordinary care, should have known of its dangerous nature. The jury further found that Shell had not exercised ordinary care to remedy the dangerous condition and that its failure to do so was also a proximate cause of the occurrence. The jury answered "no" to the issue inquiring whether Shell had failed to give the plaintiff a warning of the dangerous condition. In response to the contributory negligence issues, the jury found that Waxler had been negligent and that his negligence was a proximate cause of the occurrence. The jury also found that Waxler's percentage of negligence was 40% and Shell's was 60%. Based on the jury's verdict, the trial court awarded Waxler the sum of $260,458.14, representing the total amount of his damages, reduced by 40% of such sum, and by $29,341.86 which the court awarded to the intervenor, Texas Employers' Insurance Association, on its claim for subrogation benefits.

In its first two points of error, Shell challenges the legal sufficiency of the evidence, contending that there was no evidence showing that it owed a legal duty to protect the plaintiff from the type of injuries suffered. In reviewing these points of error, we consider only the evidence, and inferences therefrom, which tend to support the judgment and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

At the time of Waxler's injury, he was working on a construction project at the Shell OP-3 plant. In order to reach the job site, Waxler and his co-employees left their automobiles on Shell's parking lot and entered the plant premises through a gate in a chain link fence. A short distance inside the gate, Brown & Root had erected and was maintaining seven small buildings or shacks, separated by lanes about 4 feet in width. All Brown & Root employees were required to enter and exit the job site through these lanes. Because of the width of the lanes, only two employees could enter and exit through a particular lane at the same time.

Upon entry through the specified passageway, each employee would pick up a numbered brass token, which coincided with the number on his hardhat. The employee would keep this brass token with him throughout the day, and would use it to check out and return the tools necessary for his work. At the end of each work day, the employees were required to exit the job site premises through their designated lanes and return the brass tokens by placing them in a receptacle provided for that purpose. In this manner Brown & Root was able to audit its payroll and account for the daily whereabouts of its employees. This entry-exit system was called the "Brass Alley" or "Brass Shacks".

Waxler testified that the Brown & Root employees working at the OP-3 job site were not permitted to exit through the Brass Shacks until the whistle signaled the end of the working day. They were further instructed to remain on the other side of a railroad track located some distance from the Brass Shacks, until they heard the whistle. According to Waxler, there were at least a thousand Brown & Root employees then working at the OP-3 job site, all of whom left the premises at the same time each day. Upon hearing the whistle, this great crowd of people customarily ran from the railroad track to the Brass Shacks, through their respective lanes, out through the main gate and into the parking lot.

Waxler testified that on the day in question, he started running with the other employees toward the Brass Shacks, but just before entering his lane, he hesitated to avoid colliding with a co-worker who crossed in front of him. This delay caused him to be knocked down by the mass of co-workers trying to get through the Brass Shack lanes. He was dragged by momentum of the crowd through the Brass Shacks and was trampled by his coworkers between the Brass Shacks and the front gate. He finally managed to drag himself up and out of the way by holding on to the chain link fence. As a result of this incident, he suffered a broken hip and other serious disabilities.

Waxler further testified that prior to the time he began working at the OP-3 job site, he had worked as a Brown & Root employee at another area in the Shell complex known as CPS. At this location, Brown & Root employees were also required to enter and leave the job site by way of Brass Shacks, but according to Waxler, the situation was entirely different from that existing at the OP-3 job site. At the CPS location, Shell security guards required Brown & Root employees to form orderly lines while existing the job site, and the guards prohibited running and "horseplay". Waxler said that although Shell security guards were present at the OP-3 location, they did not try to control the flow of employees exiting the job site, and that it was an every day occurrence for the employees to run through the Brass Shacks.

Mr. Hruska, a Shell safety representative contractor, was called to testify under the adverse party rule. This witness stated that it was his duty to keep track of all injuries sustained by the employees of contractors working for Shell and to see that Shell's contractors were performing their jobs safely. He said that Shell also had a project engineer on the job site who had total responsibility for all facets of the project, including safety. He stated that running was considered a safety violation, and that if he had observed employees running, he would have taken steps to remedy the situation. By way of example, he told how he had once noticed a contractor's employees riding two to three on a bicycle as they exited the plant. He said that he contacted the employing contractor and told the contractor that Shell considered this practice to be unsafe and that Shell expected the contractor to control it. The contractor then remedied the problem.

Another part of Mr. Hruska's duties was to make periodic inspections of the job site premises and to see that the contractors were implementing proper safety programs. He said that Shell was interested in seeing that anything constructed on its premises was used in a safe manner and that if a dangerous condition existed, Shell would have it rectified. Mr. Hruska admitted that he had testified earlier, in his deposition that Shell could order a contractor or contractor's employee off the job for a safety violation.

Mr. Hruska also testified that Shell security guards were charged with closing and opening the gates that lead to the parking area and that Brown & Root employees were required by Shell's security guards to form orderly lines when exiting the CPS project. He said that he had observed Brown & Root employees running through the Brass Shacks at quitting time, but that he had not seen them do this at the OP-3 area.

As a general rule, a landowner has no duty to protect the employees of an independent contractor from a dangerous condition brought on to the land, and maintained, and controlled by the independent contractor. Strakas v. Gehring, 360 S.W.2d 787 (Tex.1962); Shell Chemical Co. v. Lamb, 493 S.W.2d 742 (Tex.1973). Thus, where a dangerous activity is under the sole control of the independent contractor, any danger arising from that activity is the responsibility of the contractor, not the landowner. Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627 (Tex.1976).

However, a landowner does have a duty to use reasonable care to keep the premises safe for business invitees. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (Tex.1950). Where a landowner interferes with or intermeddles in a dangerous activity conducted by an independent contractor, he may be held liable to the contractor's employees for...