Brownsville Navigation District v. Izaguirre

800 S.W.2d 244, 1990 WL 155581

• Court: Court of Appeals of Texas
• Decided: December 6, 1990
• Docket: 13-89-290-CV
• Status: Published

Opinions

OPINION

KENNEDY, Justice.

Appeal is taken from the jury trial of a wrongful death and survival lawsuit. The jury found negligence on the part of appellants Brownsville Navigation District (BND), Missouri Pacific Railroad Company and Missouri Pacific Truck Lines.¹ Based upon the jury’s verdict, the trial court awarded money damages to appellees, the decedent’s beneficiaries. MOPAC and BND each assert four points of error. We affirm.

Epigmenio Izaguirre was fatally injured at work when a 7,000 lb. steel coil fell and crushed him. Izaguirre worked at a warehouse located at the Port of Brownsville on land leased by his employer, Fosforo, Inc. The lessor and owner of the land was BND.

In May of 1987, the owner of some of the steel coils stored at the warehouse instructed Fosforo to ship five coils to Chicago. The coils would be loaded onto a trailer and shipped by truck to San Antonio, then the trailer would be loaded “piggyback” on a MOPAC railroad flatcar bound for Chicago. At the owner’s request, Fosforo contacted Alamo Express (the trucking company which, several times earlier that week, had transported steel coils from the warehouse) and instructed them to deliver a trailer for loading by Fosforo employees. The Alamo driver picked up an empty trailer at the MOPAC terminal in San Antonio and delivered it to the warehouse. He “spotted” the trailer by backing it up to the Fosforo dock and lowering the trailer’s dolly legs to support the front end of the trailer when the tractor was later removed. Because the ground on which the trailer stood was dirt and it was raining, the surface was soaked and muddy. To keep the dolly legs from sinking into the ground, the driver placed a large wooden board under them. Fosforo kept a board leaning against the warehouse, for just such an occasion. The driver then removed the tractor and drove off.

Shortly thereafter, Fosforo employees began to load the trailer. In the course of loading the coils, an employee drove a forklift into the trailer, a fully enclosed “van trailer,” as opposed to a flatbed. The coils were “blocked” by nailing wooden wedges into the floor of the trailer; this procedure was intended to keep the coils from moving. At the time of the accident, the forklift operator was inside the trailer and placing a second coil on the floor, waiting for Izaguirre to finish blocking the first coil before removing the forks from the second. Izaguirre was kneeling next to the first coil on the right-hand side, nailing in the wedges, when the board under the dolly legs broke. The trailer fell onto its right side. Izaguirre was pinned under the coil. He bled to death.

This accident was the second at the Port of Brownsville, involving both a trailer supplied by MOPAC and an overturn occurring during loading. In May of 1982, another man was injured; the van trailer he was loading overturned when the board supporting the dolly legs broke. The trailer was spotted on muddy ground by a MO-PAC driver. In May of 1984, the injured man sued MOPAC and BND. Both parties filed general denials. Fosforo and its employees were never informed about this prior accident.

The trailer involved in the present suit was manufactured by Fruehauf Corporation, sold to XTRA Corporation, leased and maintained by CSX Transportation and MOPAC, and delivered by Alamo Express, Inc. Although all of these companies were originally named as defendants in this suit, MOPAC is the only one before us on appeal.

By its first point of error, MOPAC contends that the trial court erred by granting appellees’ motion for leave to file a post-verdict amendment to their pleadings (an eleventh amended original petition). Considering only appellees’ prior pleadings (the tenth amended original petition) and the proof adduced at trial, we find sufficient support for the judgment. Thus, even if the trial court erred, MOPAC could not have been harmed by the post-verdict amendment. See Tex.R.App.P. 81(b)(1).

Appellees’ tenth amended original petition alleged the following acts of negligence on the part of MOPAC:

(1) In failing to warn users about the proper method for setting up this type trailer or instruct when the trailer is going to be loaded without the benefit of a tractor hooked up to the trailer;

(2) In failing to warn or instruct users about the proper methods of setting up the trailer;

(3) In failing to ascertain what the trailer was going to be used for before leasing it to Alamo Express, Inc.;

(4) In failing to warn or instruct about the limitations of the use of the trailer;

(5) In failing to maintain a proper safety program;

(6) In failing to properly inspect, adjust and/or maintain the trailer brakes prior to releasing the trailer to Alamo Express, Inc.;

(7) In allowing the trailer to be used to haul steel coils; and

(8) In failing to warn about the dangers of spotting trailers at the Port of Brownsville.

Without objection, the trial court submitted a broad form negligence question to the jury: “Did the negligence, if any, of those named below proximately cause the occurrence in question?” Thus, any of the pled acts or omissions which are supported by the evidence will, in turn, support the judgment. See Aim v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986); Scott v. Atchison T. & S.F. Ry., 572 S.W.2d 273, 282 (Tex.1978) (on rehearing). After reviewing the record, we believe several of the alleged acts and omissions are supported by sufficient evidence; nonetheless, for the sake of brevity, we discuss only one — MOP AC’s failure to maintain a proper safety program.

The evidence at trial revealed that MO-PAC distributed a circular to Fosforo which, according to MOPAC’s regional manager, was intended to show shippers and motor carriers the prescribed methods for properly loading trailers. While MO-PAC’s regional manager contended that the circular portrayed a reliable method for securing the coils, the other witnesses disagreed. Howard Bosscher, appellees’ safety expert, testified that the method described by the circular was not only unsafe but also illegal, as it violated federal regulations which require the coils to be secured by “tie-downs.” Gary Nelson, co-defendant XTRA’s safety consultant, testified that federal regulations require any coil weighing more than 5,000 lbs. to be strapped to the frame of the trailer, not just blocked. He further testified that the circular failed to mention this fact and wholly failed to show the proper and legal method for loading these coils.

Any variance between pleadings and proof is rarely a source of harmful error. Fruehauf Corp. v. Ortega, 687 S.W.2d 777, 782 (Tex.Civ.App. — Corpus Christi 1985, no writ) (per curiam). Moreover, pleadings are to be construed liberally, particularly when the complaining party has not filed any special exceptions. See Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 496 (Tex.1988). Finally, when an issue is submitted broadly and no objection is made to the broad submission, the judgment will not be reversed simply because one or more acts contributing to the injury was not particularly pled. Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 938 (Tex.1980), cert, denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980).

Appellees pled MOPAC’s failure to maintain a proper safety program. MO-PAC did not specially except to this pleading. MOPAC’s intent to include this circular as part of its safety program can reasonably be inferred from the evidence, especially in light of the fact that MOPAC employees would be exposed to any dangers created by improperly loaded trailers when the trailers were returned for transport on MOPAC railcars. Because appel-lees’ allegation in their tenth amended petition is not misleading and is adequately supported by the evidence, the trial court’s ruling on any subsequent amendment is simply irrelevant. Cf. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938 (Tex. 1990) (in which a post-verdict amendment was necessary to conform the pleadings to the jury’s verdict). Point one is overruled.

By its second point of error, MO-PAC argues that, as a matter of law, it owed no duty to the decedent, Izaguirre. The Restatement (Second) of Torts § 324 A(c) (1965) provides, in relevant part:

One who undertakes ... to render services to another which he should recognize as necessary for the protection of a third person ... is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if the harm is suffered because of reliance of the other or third person upon the undertaking.

A party that voluntarily undertakes an affirmative course of action for the benefit of others has a duty to exercise reasonable care in performing the action. Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116, 119-20 (Tex.1976); see also Roberson v. McCarthy, 620 S.W.2d 912, 914 (Tex.Civ.App.—Corpus Christi 1981, writ ref’d n.r.e.) (quoting § 324 A). When MOPAC distributed the circular, purporting to instruct on the proper loading procedures, MOPAC assumed a legal duty to exercise reasonable care in its preparation and dissemination. Upon distribution to Fosforo, MOPAC incurred a legal duty to third persons such as Izaguirre. Point two is overruled.

Through MOPAC’s third and fourth points of error, it challenges the legal and factual sufficiency of the evidence to support the jury’s finding of proximate cause. In a negligence cause of action, the plaintiff must prove that the defendant’s negligent conduct proximately caused the injury. El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987). Proximate cause consists of cause-in-fact (“but for”) and foreseeability. Id.

When considering a “no evidence,” “insufficient evidence” or “against the great weight and preponderance of the evidence” point of error, we will follow the well-established tests set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas Gen’l In-dem. Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Fin. Co. v. Garza, 626 S.W.2d 120 (Tex.App.—Corpus Christi 1981, writ ref’d n.r.e.), and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

The evidence showed that, of the trailers available to MOPAC, flatbed trailers were the only ones suitable for transporting steel coils. When loading a flatbed, no one gets on the trailer to nail wooden wedges to the floor. The coils are loaded by the forklift from the side, and the driver secures them with tie-downs after all coils are loaded. If MOPAC’s circular had contained the proper instructions for loading 7,000 lb. steel coils, Fosforo would have been unable to follow its directions — Fosfo-ro would have known that it needed a flatbed trailer. Had one been used, Iza-guirre and the forklift would not have been on it, if and when it overturned.

Izaguirre was injured while kneeling next to a 7,000 lb. steel coil, in front of a forklift, in an enclosed trailer, spotted on muddy ground, nailing wedges into the floor. Based upon both the unsafe loading practices urged by MOPAC and its knowledge of the virtually identical prior overturn of one of its van trailers at the Port, we find the evidence legally and factually sufficient to satisfy the cause-in-fact and foreseeability components of proximate cause. Points three and four are overruled.

By its first point of error, BND complains of the trial court’s denial of its motion for summary judgment. It is axiomatic that when a party unsuccessfully moves for summary judgment and subsequently loses at a trial on the merits, the order denying the motion is not appealable. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). Point one is overruled.

By its second and fourth points of error, BND contends that it owed no legal duty to Izaguirre. As stated earlier, BND owned the land and leased it to Fosfo-ro. On two separate grounds, we disagree with BND’s contention. First, the Restatement (Second) of Torts § 358(1) (1965) provides:

A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if (a) the lessee does not know or have reason to know of the condition or the risk involved, and (b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

Section 358(1) applies to the facts of this case. This principle of law conforms with the ordinary tort duty imposed in this State upon a premises owner to a licensee. The premises owner owes a licensee a duty not to injure willfully, wantonly, or through gross negligence; except, when the owner had knowledge of a dangerous condition and the licensee does not, the owner has a duty to warn. Marshbank v. Austin Bridge Co., 669 S.W.2d 129, 132-33 (Tex.App.—Corpus Christi 1984, writ ref’d n.r. e.). Thus, a landowner’s liability turns on whether it acted reasonably in light of what it knew or should have known about the risks accompanying a premises condition. Cf. Exxon Corp. v. Quinn, 726 S.W.2d 17 (Tex.1987) (although the Court held that the landowner owed no duty to an independent contractor’s employee, the landowner had no prior knowledge of a dangerous condition on the premises).

The man injured in the 1982 overturn accident at the Port sued BND as lessor and owner of the land on which the accident occurred. In his petition, he alleged that BND was negligent by failing to inspect and determine that the place was unsafe and unstable for loading, unloading and parking trailers. On May 21, 1984, BND was served with the petition. Thus, BND had knowledge of a lessee’s claim that BND’s land was unstable and unsafe for the loading of trailers. It is undisputed that Fosforo had no similar knowledge. We find that BND, as a lessor with knowledge, owed a legal duty to warn Fosforo.

Because Fosforo was leasing unimproved land, we emphasize that BND’s duty arose soley from its knowledge of an unreasonable risk of harm. We express no opinion of whether BND had any duty to provide a safe loading surface to its lessees or whether it had any duty to insure that safe loading procedures were followed.

Second, testimony of a defendant’s employee which establishes a standard of care can be used to create a legal duty. Figure World, Inc. v. Farley, 680 S.W.2d 83, 36 (Tex.App. — Austin 1984, writ ref’d n.r.e.). At trial, the deputy director of the Port of Brownsville (an employee of BND) testified that although he was never told about the 1982 accident, if he had been told, he would have notified the other lessees of the dangerous situation. Thus, BND itself has established the standard of care.

Given BND’s knowledge of the alleged dangerous condition existing on the premises, its lessee’s lack of knowledge, and the Port director’s testimony, we conclude that BND had a legal duty to warn. Points two and four are overruled.²

BND complains, by point three, that the trial court erred in refusing to submit jury questions on the issue of Fos-foro’s negligence. An employer’s negligence may not be considered in a third-party negligence action brought by an employee arising out of an accidental injury covered by workers’ compensation insurance. Varela v. American Petrofina Co. of Texas, Inc., 658 S.W.2d 561, 562 (Tex.1983); see also Sappington v. Younger Transportation, Inc., 758 S.W.2d 866, 868 (Tex. App. — Corpus Christi 1988, writ denied). If an injured employee recovers from a third party whose negligence contributed to the injury, the negligent third party is barred from seeking contribution or indemnity from the employer. Varela, 658 S.W.2d at 562. BND was not entitled to a jury question regarding Fosforo’s negligence.

With this point, BND argues that the issue of Fosforo’s gross negligence should have been submitted. We need not pass on the merits of BND’s argument because BND tendered jury questions solely directed to the issue of Fosforo’s negligence; BND did not tender any questions concerning Fosforo’s gross negligence. BND has waived the complaint. See Tex. R.Civ.P. 278. Point three is overruled.

The judgment of the trial court is AFFIRMED.

1 . Because it is undisputed that an agency relationship existed between Missouri Pacific Truck Lines and Missouri Pacific Railroad Company, both wholly owned subsidiaries of Union Pacific Corporation, we will treat them as one and the same, referring to them collectively as MO-PAC.

2 . Within its discussion of point four, BND declares, "Finally, Appellant Brownsville Navigation District alleges that there was no evidence to support the percentage of negligence attributed to Brownsville Navigation District by the jury in its final verdict." This naked allegation is neither asserted by a point of error nor argued in the brief. Under these circumstances, we decline to address it. See Tex.R.App.P. 74(d), (f).