United Scaffolding, Inc. v. Levine, No. 15-0921

• Court: Supreme Court of Texas
• Citation: 537 S.W.3d 463
• Decision Date: 30 June 2017
• Parties: UNITED SCAFFOLDING, INC., Petitioner, v. James LEVINE, Respondent
• Docket Number: No. 15-0921

537 S.W.3d 463

UNITED SCAFFOLDING, INC., Petitioner,
v.
James LEVINE, Respondent

No. 15-0921

Supreme Court of Texas.

Argued March 2, 2017
OPINION DELIVERED: June 30, 2017
Rehearing Denied January 26, 2018
Corrected January 26, 2018

Roger W. Hughes, Adams & Graham, L.L.P., Harlingen, for Amicus Curiae Texas Association of Defense Counsel.

David M. Gunn, Erin H. Huber, Beck Redden LLP, Houston, Kathleen Marie Kennedy, Beaumont, for Petitioner.

Christopher Michael Portner, J. Trenton Bond, Portner& Bond PLLC, Beaumont, for Respondent.

Justice Green delivered the opinion of the Court, in which Chief Justice Hecht, Justice Johnson, Justice Willett, Justice Guzman, and Justice Brown joined.

In this slip-and-fall case, we are presented with two challenges to a trial court judgment rendered against a scaffolding contractor. First, the contractor challenges the jury submission of the plaintiff's claim under a general-negligence theory of recovery, arguing that the plaintiff brought a claim for premises liability, which necessarily fails because the plaintiff did not request and obtain findings on the elements of that claim. We hold that the plaintiff's claim against the contractor sounds in premises liability, and a general-negligence submission cannot support the plaintiff's recovery in a premises liability case. Second, the contractor challenges the trial court's order granting a new trial, arguing that the new trial order can be reviewed by direct appeal after final judgment was rendered in the subsequent trial. While the contractor presents an interesting issue, we do not reach it because our ruling on the submission issue is dispositive in the contractor's favor. We reverse the court of appeals' judgment and render a take-nothing judgment.

I. Background and Procedural History

On December 26, 2005, James Levine, a pipefitter for Valero Energy Corporation and an employee at Valero's Port Arthur refinery, was scheduled to work an overtime shift in the refinery's alkylation unit. Because it was an overtime shift, Levine did not work with his usual crew, but each member of the overtime crew was a Valero employee. The overtime crew was tasked with routine maintenance that required the installation of two blanks into an exchanger, a dangerous job that placed Levine and other crew members more than fifteen feet above the ground on a scaffold, where they donned protective clothing and were supplied "fresh air" through special equipment that was constantly monitored by a crew member. Levine alleges that he slipped on a piece of plywood that had not been nailed down, causing him to fall up to his arms through a hole in the scaffold. Levine alleges that he suffered a neck injury as a result of the fall.

The scaffold on which Levine allegedly fell was constructed by United Scaffolding, Inc. (USI), a contractor Valero hired to build scaffolds at its Port Arthur refinery. According to both USI's and Valero's scaffold policies, and in compliance with Occupational Safety and Health Administration (OSHA) regulations, USI was required to inspect the nearly three thousand scaffolds at the refinery before each work shift and before each scaffold's use. It is undisputed that USI assembled the scaffold at issue approximately one week before the maintenance work commenced, and it is undisputed that USI representatives were not present on the date of, and at least three days preceding, Levine's fall.

537 S.W.3d 468

Levine filed suit against USI, claiming that USI improperly constructed the scaffold and failed to remedy or warn of the dangerous condition on the scaffold, causing his injury. The case was tried before a jury for the first time in December 2008. The trial court submitted a general-negligence question to the jury, offered by USI, and the jury returned a verdict finding USI negligent. The jury apportioned responsibility among the parties, assigning 51% to USI and 49% to Levine. The jury awarded Levine $178,000 in damages for future medical expenses, but it declined to award any damages for past medical expenses, past or future pain and suffering, mental anguish, or loss of earning capacity.

Levine filed a motion for new trial, asserting that the jury's verdict was against the great weight and preponderance of the evidence. The trial court agreed and granted a new trial "in the interest of justice and fairness." In re United Scaffolding, Inc. , 301 S.W.3d 661, 662 (Tex. 2010) (per curiam) (orig. proceeding). Asserting that the trial court abused its discretion by ordering the new trial, USI filed a petition for writ of mandamus in the Ninth Court of Appeals, which denied relief. In re United Scaffolding, Inc. , 287 S.W.3d 274, 275 (Tex. App.—Beaumont 2009, orig. proceeding), mand. granted , 301 S.W.3d at 663. USI then filed a petition for writ of mandamus in this Court, and we conditionally granted the writ, directing the trial court to "specify its reasons for disregarding the jury verdict and ordering a new trial." In re United Scaffolding , 301 S.W.3d at 663. The trial court subsequently amended its order, but USI again sought mandamus relief, which the court of appeals again denied. In re United Scaffolding, Inc. , 315 S.W.3d 246, 251 (Tex. App.—Beaumont 2010, orig. proceeding), mand. granted , 377 S.W.3d 685, 690 (Tex. 2012). USI then filed a second petition for writ of mandamus in this Court, alleging that the trial court did not fully comply with our instruction from the first mandamus proceeding. In re United Scaffolding, Inc. , 377 S.W.3d at 686–87. We conditionally granted the writ and directed the trial court to "resolve all ambiguity" by amending the new trial order to include "only the specific and valid reasons that, in the context of this case, ... it granted a new trial." Id. at 690. The trial court amended its order, and USI did not file a third petition for writ of mandamus.

The case was tried for a second time in February 2014. Just as it did in the first trial, the trial court submitted a general-negligence question to the jury, and USI neither offered a premises liability question nor objected to the general-negligence question. At the conclusion of the second trial, Levine faired much better. In addition to allocating 100% of the responsibility to USI, the jury awarded Levine nearly $2 million in past and future damages. USI filed a motion for new trial and a motion for judgment notwithstanding the verdict. In its motion for judgment notwithstanding the verdict, USI raised the argument, for the first time, that the trial court improperly submitted a general-negligence question to the jury when Levine's claim sounded in premises liability. Levine cited our decision in Clayton W. Williams, Jr., Inc. v. Olivo , 952 S.W.2d 523 (Tex. 1997), asserting that submission of the improper theory of recovery required the trial court to render a take-nothing judgment. The trial court denied both motions and entered judgment in Levine's favor.

USI raised two issues on appeal: (1) whether Levine's claim was improperly submitted under a general-negligence theory of recovery; and (2) whether the new trial order following the first trial was improperly granted. The court of appeals affirmed the trial court's judgment. 520

537 S.W.3d 469

S.W.3d 631, 632, 2015 WL 5157837 (Tex. App.—Corpus Christi–Edinburg 2015, pet. granted). As to the first issue, the court of appeals concluded that the relevant inquiry for determining the proper characterization of Levine's claim hinged on whether USI controlled the premises, which the court held that USI did not. Id. at 635–36, 2015 WL 5157837. Declining to reach the second issue, the court of appeals held that although several of our recent decisions could be characterized as expanding the scope of appellate review of new trial orders via mandamus, those holdings do not permit the direct appeal of a new trial order following the completion of the new trial. Id. at 636, 2015 WL 5157837.

II. Character and Submission of Levine's Claim

In its first issue, USI contends that it is entitled to a take-nothing judgment because Levine's premises liability claim was improperly submitted to the jury under a general-negligence theory of recovery. Levine argues that his claim was properly submitted and, even if his claim sounded in premises liability, USI waived its argument either by not objecting to the jury charge or by inviting the error when it requested a general-negligence question in the first trial. As we explain below, both Levine's trial court petition and the evidence presented at trial compel the conclusion that Levine's claim is premised on USI's having the right to control the scaffold at the time Levine allegedly suffered injury. We hold that Levine's claim sounds in premises liability, and, as a result, the general-negligence findings cannot support Levine's recovery. Additionally, we hold that USI neither waived its submission argument nor invited error and that USI properly preserved error by raising its argument in its motion for judgment notwithstanding the verdict.

A. Standard of Review

A trial court must submit jury questions, instructions, and definitions that "are raised by the written pleadings and the evidence." TEX. R. CIV. P. 278 ; see also Hyundai Motor Co. v. Rodriguez , 995 S.W.2d 661, 663 (Tex. 1999). In reviewing...