Union Carbide Corp. v. Burton

Citation618 S.W.2d 410
Decision Date03 June 1981
Docket NumberNo. A2594,A2594
PartiesUNION CARBIDE CORPORATION, Appellant, v. Jimmie Lee BURTON, Appellee. (14th Dist.)
CourtTexas Court of Appeals

Ervin A. Apffel, Jr., Douglas W. Poole, McLeod, Alexander, Powel & Apffel, Galveston, for appellant.

Phillip E. Hosey, Hosey, Presnall & Hosey, Galveston, Philip J. John, James Edward Maloney, Baker & Botts, Henry P. Giessel, Alice Giessel, Talbert, Giessel & Stone, Russel Ramsey, Ramsey & Murray, Victor A. Sturm, Hudgins, Hudgins, Sturm & Warrick, Houston, Ralph J. Bernsen, Sr., LaMarque, for appellee.

Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.

PAUL PRESSLER, Justice.

This is an appeal from an award of damages against Union Carbide (hereafter Carbide). Appellee, Jimmie Lee Burton (hereafter Burton), an employee of Phil's Tire Shop, was severely injured when a RH5 degree wheel, on a truck owned by Carbide and on the premises of Carbide, explosively separated as Burton was attempting to place a tire gauge on the stem of the tire. Burton alleged in his Second Amended Petition that Carbide breached the non-delegable duty which it owed to him as a business-invitee. This duty was to exercise due care to make its premises and equipment reasonably safe. Burton alleged that Carbide breached that duty by allowing the wheel assembly to deteriorate through corrosion and abuse and by not replacing the wheel assembly before the accident. Burton also alleged that Carbide knew or should have known that the wheel assembly posed an unusual risk of danger to Burton and failed in its duty to warn Burton of such danger. Burton alleged that such negligence was the proximate cause of the accident and the resulting injuries to him. Carbide joined Phil Walker d/b/a Phil's Tire Shop (hereafter Phil's) and Firestone Tire & Rubber Company (hereafter Firestone) as third party defendants. Carbide sought contribution or indemnity from Phil's on the basis of an alleged written contract of indemnity and from Firestone on a theory of strict liability in tort for defective design and inadequate warnings.

The jury found Carbide negligent in failing to maintain the wheel assembly, to replace the wheel assembly, to give warning of the hazardous condition of the wheel assembly and in using the wheel assembly in a manner contrary to that in which a person of ordinary prudence would have used it. The jury also found that each of such acts of negligence was a proximate cause of the occurrence in question and awarded damages of $700,000.

The jury failed to find that Firestone was guilty of a design defect in the manufacture of the wheel assembly. In answer to special issues numbers 9 and 13, the jury found that it was not reasonably foreseeable by Firestone that owners and operators of the wheel assembly would not maintain the wheel and found that Burton was not putting air in the tire when the accident occurred. Special Issues as to adequate warnings concerning use and maintenance of the wheel assembly were conditioned on affirmative answers to special issues 9 and 13.

The jury also found that the indemnity clause in the contract between Phil's and Carbide was not conspicuous. On the basis of the jury findings and the stipulated medical expenses, the court entered judgment for Burton against Carbide in the amount of $719,575.96. This was later reduced to $569,575.96 with the granting of a Remittitur. The court awarded the intervenor, Great Central Insurance Company (hereafter Great Central), $45,380.08 as reimbursement for workman's compensation benefits previously paid to Burton, such sum to be taken from Burton's recovery. Burton's attorneys' fees of $13,500 were deducted from the Great Central recovery. A take-nothing judgment was entered in the third party action of Carbide against Phil's and Firestone.

Carbide asserts 28 points of error. Great Central appeals the award and division of Plaintiff's attorneys' fees out of its recovery. Burton complains of the granting of the Remittitur by the trial court. We will deal first with Carbide's appeal then with Burton's and finally with Great Central's.

Carbide's Appeal re: Burton

Carbide alleges that submission of special issue No. 1, was erroneous because Burton was the employee of an independent contractor and, therefore, Carbide owed Burton no duty to protect against or warn of the dangerous condition of the wheel assembly. Carbide relies upon the rule stated in Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973) and in Abalos v. Oil Development Company of Texas, 544 S.W.2d 627 (Tex.1976) that an occupier or owner of premises owes no duty to prevent the existence of, inspect for or warn against dangerous conditions on the premises which are inherent in the performance of work contracted for by an independent contractor who has control of the premises or instrumentalities in order to do its work, or which are created by an independent contractor in the performance of his work.

Appellant is correct in stating that an owner or occupier of premises is not an absolute insurer of the safety of all invitees on his premises and that any plaintiff must prove the existence and violation of a legal duty owed him by the Defendant owner. The threshold question in determining the existence of such a duty is that of the control of the premises or instrumentality which causes the injury. As held by the Supreme Court in the Shell case, cases in which the occupier's duty to warn or protect an independent contractor against dangerous conditions fall into two categories. In one, the danger does not arise out of the work of the independent contractor/invitee but exists on the premises prior to the assumption of control by the independent contractor. Here the owner is in a superior position to know of or discover the hidden dangerous conditions on his premises. In the other, where the dangerous condition is created by or arises out of the work activity of the injured invitee, the invitee is in a superior position so as to prevent, inspect for and eliminate or protect against the dangerous condition. Shell Chemical Co. v. Lamb, 493 S.W.2d at 746-748.

Here Carbide maintained such control over the tires and wheels on its trucks as to be in a superior position to inspect for, protect against and warn of the dangerous condition which gave rise to the accident. It is undisputed that the wheel assembly which explosively separated was manufactured in 1964 and since that time has been owned and used by Carbide. It is also undisputed that prior to 1972 Carbide repaired all of its tires without the help of independent contractors. Since that time several independent contractors serviced Carbide's truck tires. Phil's was responsible only for changing and fixing flats as they occurred and commenced work on a particular tire and wheel assembly only when called to do so by Carbide. Thus Carbide occupied a superior position with reference to the care and maintenance of the wheels and tires in question.

There is a distinction between those dangers inherent in the work of an independent contractor, such as the danger of falling from a steel beam while engaged in the construction of a roof, and those dangers or defective conditions which an independent contractor might possibly encounter but which arise out of or result from some act or failure to act upon the part of an owner or occupier of premises. See Jenkins v. Fritzler Development Corporation, 580 S.W.2d 63 (Tex.Civ.App. Houston (1st Dist.) 1979, writ ref'd n. r. e.)

In the former situation, the owner or occupier of the premises has no duty to protect against a danger which arises out of the manner in which an invitee uses the premises. There are many situations in which an otherwise nondefective instrumentality may be put to dangerous but normal use by an independent contractor in the execution of his responsibilities. However the owner of the premises may not be charged with a duty to protect an invitee against the dangers arising out of such use. In the latter situation, however, where the danger results from a defective condition which arises out of some act or failure to act by the owner of the premises, the owner may be charged with a duty to inspect for and protect against such a dangerous condition. Here there is ample evidence that the dangerous condition was the result of "run flat" damage to the wheel assembly, caused by underinflating the tire on the wheel for which only Carbide could be held responsible. Because there is evidence that the dangerous condition resulted from an act or failure to act of Carbide, it cannot be held that, as a matter of law, Carbide owed no duty to Burton to protect against the dangerous condition of the wheel assembly.

It must be noted that to this point we have discussed only the contention of Appellant that Carbide owed no duty as a matter of law to protect Burton from the danger inherent in his work as an independent contractor. We must address, as well, the issue of whether Burton's knowledge of the defective condition is an absolute defense which may be asserted by Carbide as was held in Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.1967). It is this no duty doctrine which was abolished in Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). Following Parker, evidence of plaintiff's knowledge of the dangerous condition goes only to the question of the plaintiff's negligence in confronting the risk and acting upon it. The occupier's duty to warn and breach of that duty must be considered separately from the negligence of the plaintiff. See Houston v. Bush, 566 S.W.2d 33 (Tex.Civ.App. Beaumont 1978, writ ref'd n. r. e.).

Carbide's...

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