Williams v. Olivo

Decision Date16 November 1995
Docket NumberNo. 04-93-00549-CV,04-93-00549-CV
Citation912 S.W.2d 319
PartiesClayton W. WILLIAMS, Jr., Inc. & Odis E. Graham, Appellants, v. David & Rosielinda OLIVO, Appellees.
CourtTexas Court of Appeals

Alex Huddleston, Andrew L. Kerr, Zachary B. Aoki, Groce, Locke & Hebdon, San Antonio, Scott Patrick Stolley, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, K. Blake Coffee, Law Offices of K. Blake Coffee, San Antonio, for Appellant.

W.R. Hitchens, Sam R. Fugate, Kingsville, Carlos Villarreal, Hunt, Hermansen, McKibben & English, L.L.P., Corpus Christi, for Appellee.




CHAPA, Chief Justice.

Appellees' motion for rehearing en banc is granted. This renders moot appellees' motion for rehearing addressed to the original panel. Appellant Clayton W. Williams, Jr., Inc's motion for rehearing was considered en banc on the court's own motion; that motion for rehearing is also granted. The previous opinions and judgment dated November 8, 1995, are withdrawn and the following opinions and judgment are substituted therefor.

Appellants, Clayton W. Williams, Jr., Incorporated, and Odis E. Graham, contest a judgment rendered in favor of appellees, David Olivo and Rosielinda Olivo. Appellees' cause of action is based on a personal injury David Olivo suffered after falling from a drilling rig.

The dispositive issues before this court are:

(1) whether appellees' cause of action was submitted to the jury on the correct theory of liability;

(2) whether sufficient evidence exists to support a finding of legal duty;

(3) whether the court abused its discretion in failing to submit requested instructions regarding legal duty;

(4) whether sufficient evidence exists to support a finding of negligence and gross negligence;

(5) whether sufficient evidence exists to support a finding of past medical expenses; and

(6) whether an employer-employee relationship exists between the two appellants.

For the reasons stated, we affirm in part and reverse and render in part.


Clayton W. Williams, Jr., Incorporated (Williams), operated an oil and gas lease in LaSalle County. The company contracted with Diamond M Onshore (Diamond M) to drill an oil well at a particular rig on the lease in LaSalle County. On December 5, 1991, Diamond M sent its employee, David Olivo, to work on the rig. Olivo mounted a pipe rack to move several joints of pipe onto a catwalk, where the pipe would be transported to the rig floor. After he moved several pipes, he suddenly slipped as he stepped off the rack. His back momentarily struck the pipe rack as he fell, and he then landed on his back on a drill pipe thread protector lying on the ground. A thread protector is a cap that screws onto the end of a drill pipe to protect its threads before it is moved to a rig. Olivo said he noticed four or five other thread protectors lying on the ground in the area. The injury to his back partially paralyzed him and he walks only with great difficulty.

Olivo filed suit against Graham and Williams for negligence and gross negligence. Olivo alleged that the drilling rig was under the control and supervision of Odis Graham, who worked for Williams and was sent to act as its representative at the rig site. Olivo and his wife, Rosielinda Olivo, asserted that appellants failed to maintain the work place in a safe condition, failed to inspect for and correct dangerous conditions, failed to warn of dangerous conditions, failed to provide safety devices, and failed to supervise the work properly. They claimed past and future damages for physical injury, physical disfigurement, physical impairment, mental anguish, medical expenses, loss of income, loss of household services, and loss of consortium.

After the evidence was presented, the jury made the following findings: that Odis Graham's negligence and gross negligence proximately caused the accident, that Graham was an employee of Williams and was acting within the scope of his employment at the time of the accident, and that Olivo was not Williams's borrowed employee.

Based upon the jury's verdict, the court found Graham and Williams jointly and severally liable for appellees' damages. It awarded appellees $2,028,354 in actual damages plus $21,800 in exemplary damages from Odis Graham and $500,000 from Clayton W. Williams, Jr., Incorporated.

In this appeal, Graham and Williams have filed separate briefs, each containing various points of error. To condense our discussion, we will address appellants' points of error together whenever they are similar.


In his first point of error, Odis Graham argues that the judgment cannot be supported on a simple negligence theory of liability because this case actually involves an injury resulting from a "condition created by the drilling and not by the activity of the drilling itself."

In a premises liability case, recovery may be based on two possible theories. First, an injury may arise from a condition of a premises. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); see also Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). Second, an injury may stem from a negligent activity on a premises. Id. Any case involving recovery under the premises defect theory must submit four elements underlying the cause of action to the jury as set forth in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983). 2

Graham contends that because this case involves a defective condition on a premises, it was necessary for appellees to submit the four elements of Corbin to the jury, which they failed to do, thus waiving the cause of action.

A trial court has wide discretion in submitting the jury charge. See TEX.R.CIV.P. 277. "This discretion is subject to the requirement that the questions submitted must control the disposition of the case, be raised by the pleadings and evidence, and properly submit the disputed issues for the jury's deliberation." Texas Dep't of Transp. v. Ramming, 861 S.W.2d 460, 463 (Tex.App.--Houston [14th Dist.] 1993, writ denied).

Recovery on a negligent activity theory requires that a person be injured by and as a contemporaneous result of the activity itself, rather than the condition created by the activity. Keetch, 845 S.W.2d at 264. The record reflects that appellees pleaded and requested jury questions on both the on-premises negligent activity theory and the premises-condition theory of liability. 3 Contrary to appellees' assertions on appeal, the record shows that only a general negligence question was submitted to the jury.

Appellees contend that the injury occurred after Olivo fell and hit a thread protector. Thread protectors, which were described as cup-like objects screwed onto pipes to protect their threads from damage while they are transported to the rig, were used by Diamond M during the drilling of the rig in this case. Typically, the floor hand bears the responsibility of screwing the protectors onto the pipes before they are hoisted up to the ramp. After the pipes arrive on the rig Although the distinction between a defective premises condition and an on-site negligent activity may appear slight in some cases, the supreme court has announced that a line of demarcation exists between the two. In Keetch, the court held, "At some point, almost every artificial condition can be said to have been created by an activity. We decline to eliminate all distinction between premises conditions and negligent activities." Keetch, 845 S.W.2d at 264. Numerous courts in this state have recognized the distinction between the two theories of recovery and have noted that a cause of action based on a defective premises condition alone must be submitted to the jury with the elements set forth in Corbin. See, e.g., H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex.1992); Stanley Stores, Inc. v. Veazey, 838 S.W.2d 884, 886 (Tex.App.--Beaumont 1992, writ denied); Physicians & Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657, 660 (Tex.App.--Corpus Christi 1988, writ denied); see also Folks v. Kirby Forest Indus., Inc., 10 F.3d 1173, 1177 (5th Cir.1994).

floor, the drilling crew removes the protectors, which are kept at the rig site until needed again. Sometimes they are stacked underneath the pipe rack or placed on the ground. It is obvious that the thread protector in question was simply lying on the ground and not being used by any of Diamond M's personnel when Olivo injured himself. When Olivo had come on duty that morning, he immediately got on the pipe rack and moved several pipes onto the catwalk so that they could be attached to a cable and hoisted onto a ramp to carry them to the rig floor. After he moved several pipes, he suddenly slipped off the pipe rack and fell to the ground several feet below, landing on a thread protector. Olivo said that several thread protectors were scattered about on the ground under the pipe rack.

Appellees contend that because thread protectors were subject to being reused as part of the ongoing drilling activity, the situation in this case is distinguishable from those cases involving solely a defective condition. We reiterate that an on-premises negligent activity case involves an injury that contemporaneously results from an activity rather than a condition created by the activity. Keetch, 845 S.W.2d at 264. Here, it does not matter that the drilling continued after the thread protectors were scattered on the ground. See H.E. Butt Grocery Co., 845 S.W.2d at 259; Stanley Stores, Inc., 838 S.W.2d at 886 (certain activities apparently continued after causing the hazardous conditions). Therefore, liability in this case primarily rests on the theory that thread protectors were tossed on the ground, thereby creating an allegedly hazardous condition. Thus, it was necessary for the court's charge...

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3 cases
  • Maritime Overseas Corp. v. Ellis
    • United States
    • Texas Supreme Court
    • November 15, 1996
    ...automobile liability insurance policy covers the president's daughter. In Williams v. Olivo, (opinion below at 912 S.W.2d 319 (Tex.App.--San Antonio 1995)), the issue is whether a landowner is liable for injury suffered by a well-driller's employee who fell on a drill pipe thread protector.......
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    • Texas Supreme Court
    • August 18, 2005
    ...to be considered submitted, the elements must be "necessarily referable thereto." Id.; see also Clayton W. Williams, Jr., Inc. v. Olivo, 912 S.W.2d 319, 327 (Tex.App.-San Antonio 1995) (explaining that the "necessarily referable" requirement is designed to give fair notice and that if the e......
  • Clayton W. Williams, Jr., Inc. v. Olivo
    • United States
    • Texas Supreme Court
    • October 2, 1997
    ...contractor's employee. The trial court rendered judgment on a jury verdict for the employee, and the court of appeals affirmed in part. 912 S.W.2d 319. Because the employee obtained no findings on the general contractor's or the representative's liability for a premises defects, we reverse ......

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