Woodlawn Mfg., Inc. v. Robinson, 06-96-00025-CV

• Decision Date: 03 December 1996
• Docket Number: No. 06-96-00025-CV,06-96-00025-CV
• Citation: 937 S.W.2d 544
• Parties: WOODLAWN MANUFACTURING, INC., Appellant, v. Eva ROBINSON, Appellee.
• Court: Texas Court of Appeals

Page 544

937 S.W.2d 544

WOODLAWN MANUFACTURING, INC., Appellant, v. Eva ROBINSON, Appellee.

No. 06-96-00025-CV.

Court of Appeals of Texas Texarkana.

Submitted Oct. 8, 1996.

Decided Oct. 30, 1996.

Rehearing Overruled Dec. 3, 1996.

Mike A. Hatchell, Molly H. Hatchell, Ramey & Flock, Tyler, Jess C. Rickman, III, Crouch & Hallett, Dallas, for appellant.

Joe R. Green, Fetter, Green & Associates, Longview, for appellee.

Before CORNELIUS, C.J., and GRANT and STARR, JJ.

OPINION

CORNELIUS, Chief Judge.

Woodlawn Manufacturing, Inc. appeals an adverse judgment awarding Eva Robinson $291,000.00 in damages for injuries she received while employed by Woodlawn. Robinson alleged that Woodlawn's negligence caused her injuries. Woodlawn is a nonsubscriber under the workers' compensation law. TEX. LABOR CODE ANN. § 406.001, et seq. (Vernon 1996). Woodlawn challenges the legal and factual sufficiency of the evidence supporting the jury's verdict on which the judgment is based. We reject these challenges and affirm the judgment.

On April 27, 1993, Eva Robinson, a machine operator employed by Woodlawn, slipped and allegedly hurt her back while operating a Fuji machine. Robinson testified that she slipped on machine coolant that had accumulated on the floor beneath and around her work station. Woodlawn's production supervisor, Don Auderer, testified that Woodlawn knew that coolant leaked and dripped from the Fuji machines, making the surrounding floor slippery. Woodlawn, however, contends that it used ordinary care to make Robinson's work station safe in spite of the slippery floor.

Woodlawn attached front and back shields to catch most of the coolant that sprayed while the machines were operating, but it knew that coolant still leaked from the machines and accumulated on the floor at the workers' positions. In an effort to lessen the risk of workers slipping on the coolant, Woodlawn provided wooden pallets for the workers to stand on. These pallets elevated the work stations about two inches above the concrete floor. Woodlawn also provided shop rags to its employees to clean any dripping coolant, and also provided an absorbent material (known as "Floor Dri") that could be thrown on the floor to absorb excess coolant.

Floor Dri is a granulated clay product commonly used in machine shops to absorb oily or greasy substances. Fuji machine operators typically used Floor Dri three or four times a day, but Woodlawn's supervisor admitted that it did not instruct the workers when or how often to use Floor Dri. Woodlawn's witness gave conflicting testimony regarding Floor Dri's effectiveness. He testified that Floor Dri made the floors safe, but acknowledged that the floor was sometimes still slippery even after coolant was absorbed by Floor Dri. Robinson testified that she used Floor Dri. She said it was effective for a short time, but that it became slippery itself after it had soaked up coolant and remained on the floor.

Woodlawn did not hold safety meetings or give specific safety instructions to its employees. Auderer testified that he was available to consult with any employee who requested help with safety measures or if he observed any unsafe practices.

Robinson's job was smoothing the rough edges on metal tubes. The Fuji machine holds the tube and spins it so that a cutting blade can finish the rough edges. At the end of each run, Robinson measured the tube and stacked it on a ledge for transfer. After a number of tubes accumulated, Robinson transferred them to a cardboard parts box located adjacent to her work station. Robinson was given a quota or goal of 1,200 tubes per work day. In order to meet her quota, she had to finish about 150 tubes per hour.

Robinson's work area consisted of the Fuji machine and two parts boxes. Each component was elevated two inches off the floor by four foot long wooden pallets. The parts boxes and supporting pallets were delivered to the work station in the morning by a worker operating a fork lift and were replaced periodically during the day as the box became full. Woodlawn did not instruct the fork lift operator to always place the pallets flush against each other to make a continuous elevated surface and avoid gaps, but left the decision where to place the pallet at the worker's discretion. Robinson, however, testified she was not told that she should direct the placement of the pallet, and that she relied on the company personnel to place it.

Robinson's production goal was 1,200 tubes per day. Woodlawn calculated the goal by determining the total amount of work time available and dividing it by the amount of time it took a single worker performing at a normal pace to finish one tube. Woodlawn allowed an hour and twenty minutes for delays and work breaks. Auderer testified the goal allowed sufficient time for employees to meet their goals and keep their work area clean. Robinson testified it was impossible to maintain the desired production rate and keep the work area clean of spilled coolant.

On the day of Robinson's accident, Woodlawn was operating five of its eight Fuji machines. Before starting work, Robinson spread Floor Dri around and under her pallet. A fork lift operator delivered the cardboard parts box and pallet to her work station. The parts box pallet was not placed flush with the one on which Robinson stood, and there was a gap between them. Because Robinson is short of stature, she could not lean over and reach the parts box to place the finished tubes without stepping on the floor at the gap between the two pallets. Woodlawn contends that the fork lift operator routinely asked each employee where they wanted the pallet. Auderer, however, admitted that Woodlawn gave no specific instructions about the placement of the pallets. Robinson testified that the driver did not ask and left in a hurry. Robinson said she did not complain about the conditions of her work place because she was afraid if she complained she would be fired.

Between 8:00 and 9:00 a.m., Robinson machined and transferred approximately 150 metal tubes. She applied Floor Dri again at approximately 9:15 a.m. Between 9:00 and 9:45 a.m., Robinson stepped off the pallet several times to transfer tubing to the parts box. At approximately 9:45 a.m., she slipped and fell when transferring finished tubes to the parts box. Robinson testified she stepped down, putting her left foot between the two pallets, and slipped as she started putting her right foot down. She started falling backwards, but the pallet caught her left foot and sent her forward into the parts box.

Robinson reported the accident that afternoon to Don Auderer. Auderer testified that Robinson told him she had lost her balance, fell into a box, and hurt her back. She did not mention slipping in coolant. Robinson worked the rest of the week. The following Monday, Robinson completed a company accident report. The report said nothing about slipping in coolant, only that she turned at her work station and fell into a box. Robinson sought medical treatment, which ultimately resulted in back surgery.

Woodlawn first contends that the trial court erred in overruling Woodlawn's motion for directed verdict and motion for judgment non obstante veredicto because there is no evidence to support the jury's finding of negligence or its award of damages.

When deciding a "no evidence" point, we consider only the evidence and inferences tending to support the jury's finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We may not substitute our judgment for that of the fact finder unless only one inference can be drawn from the evidence. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex.1992).

If the evidence creates nothing more than a mere surmise or suspicion of negligence, the evidence is the legal equivalent of no evidence. Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974). But if negligence can reasonably be inferred from direct or circumstantial evidence, there is more than a scintilla of evidence and we must overrule the no evidence challenge. Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975); Martinez v. Delta Brands, Inc., 515 S.W.2d at 265.

Woodlawn is not a subscriber under the workers' compensation law. Robison thus has the burden to prove that Woodlawn was negligent, and Woodlawn is prohibited from asserting the common law defenses of contributory negligence, assumption of the risk, and fellow servant negligence. TEX. LABOR CODE ANN. § 406.033(a), (d).

To show negligence Robinson must prove that Woodlawn owed her a legal duty, it breached that duty, and she was damaged as a result of the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Atlas Truck Lines, Inc. v. Bachelor, 639 S.W.2d 329, 331 (Tex.App.--Texarkana 1982, writ dism'd). The initial inquiry is the existence of a duty, and the foremost consideration is foreseeability of the risk. El Chico Corp. v. Poole, 732 S.W.2d at 311.

Robinson asserted at trial that Woodlawn was negligent in four respects: it failed to provide her a safe place to work; it allowed coolant to accumulate on the floor; it improperly placed the pallet holding the parts box; and it set an unrealistic production quota that prevented Robinson from being able to meet her goal and keep her area clean. If one of these theories is supported by legally and factually sufficient evidence, we must affirm the judgment. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995).

An employer must provide rules and regulations for the safety of its employees, furnish safe machinery and instrumentalities, provide a safe place to work, and select competent fellow servants. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex.1981); Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 401 (1934).

Woodlawn does not dispute that it owed a duty to Robinson to provide her with a safe work environment, but it correctly...