Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A "A-1 Rent All"

Opinion

ACCEPTED 12-15-00121-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 10/15/2015 9:45:20 PM Pam Estes CLERK

No. 12-15-00121-CV

_____________________________________________________________

FILED IN 12th COURT OF APPEALS IN THE COURT OF APPEALS TYLER, TEXAS FOR THE TWELFTH DISTRICT OF TEXAS 10/15/2015 9:45:20 PM TYLER, TEXAS PAM ESTES Clerk

_____________________________________________________________

GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants

V.

TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"

Appellees

_____________________________________________________________

Appeal from Cause No. 13-3353-A In the 7th District Court of Smith County, Texas

_____________________________________________________________

BRIEF of APPELLANTS GARRY L. ROLLINS AND CARLA D. ROLLINS

_____________________________________________________________

Sigmon Law, PLLC

Ernesto D. Sigmon State Bar No. 24010397 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile)

esigmon@esigmon.com

ORAL ARGUMENT REQUESTED

No. 12-15-00121-CV

_____________________________________________________________

IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS TYLER, TEXAS

_____________________________________________________________

GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants

V.

TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"

Appellees

_____________________________________________________________

IDENTITY OF THE PARTIES AND COUNSEL

_____________________________________________________________

APPELLANTS:

Garry L. Rollins

Carla D. Rollins

ATTORNEYS FOR APPELLANTS:

Trial Counsel

Ernesto D. Sigmon State Bar No. 24010397 SIGMON LAW, PLLC 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone)

713/485-6056 (Facsimile) esigmon@esigmon.com

Appellate Counsel

Ernesto D. Sigmon State Bar No. 24010397 SIGMON LAW, PLLC 416 West Saulnier Street 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

FIRST APPELLEE:

Texas College

ATTORNEYS FOR APPELLEE, TEXAS COLLEGE

Trial Counsel:

Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Telephone: (903) 595-3111 Facsimile: (903) 595-0191

Lead Appellate Counsel:

Greg Smith Texas Bar No. 18600600 Nolan D. Smith

Texas Bar No. 24075632 RAMEY & FLOCK, P.C. 100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: 903-597-3301 Facsimile: 903-597-2413

Associate Appellate Counsel:

Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 Fax: 903.595.0191

SECOND APPELLEE:

MPF Investments, LLC, d/b/a "A-1 Rent All"

ATTORNEYS FOR APPELLEE, MPF INVESTMENTS

Trial Counsel:

Todd M. Lonergan Texas Bar No. 12513700 lonergan@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Ryan K. Geddie Texas Bar No. 24055541 geddie@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile

Lead Appellate Counsel:

Levon G. Hovnatanian Texas Bar No. 10059825 hovnatanian@mdjwlaw.com lonergan@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Associate Appellate Counsel:

Todd M. Lonergan Texas Bar No. 12513700 lonergan@mdjwlaw.com 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Ryan K. Geddie Texas Bar No. 24055541 geddie@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile

TRIAL COURT:

Cause No. 13-3353-A 7th District Court of Smith County, Texas

Honorable Kerry L. Russell, Presiding

CONTENTS

INDEX OF AUTHORITIES ...............................................VII

STATEMENT OF THE CASE.............................................. 1

1. STATEMENT OF PROCEDURAL HISTORY ................. 1

2. STATEMENT OF JURISDICTION ............................... 5

STATEMENT REGARDING ORAL ARGUMENT ................... 6

ISSUES PRESENTED ........................................................ 7

1. Whether the Trial Court Erred in Granting the Motion

for Summary Judgment of Texas College and Its

Underlying Objections to Evidence. .......................... 7

i

2. Whether the Trial Court Erred in Granting the Motion

for Summary Judgment of MPF and Its Underlying

Objections to Evidence. ........................................... 7

3. Whether the Trial Court Abused Its Discretion in

Refusing to Re-Open the Evidence. .......................... 7

STATEMENT OF FACTS ................................................... 8

1. SUMMARY................................................................ 8

2. LITIGATION FACTS. ................................................. 8

3. CASE FACTS .......................................................... 10

ii

SUMMARY OF THE ARGUMENT ..................................... 31

ARGUMENT ................................................................... 32

1. STANDARD OF REVIEW.......................................... 32

iii

2. THE TRIAL COURT ERRED IN GRANTING TEXAS

COLLEGE’S TRADITIONAL AND NO EVIDENCE

MOTION FOR SUMMARY JUDGMENT..................... 39

1. Duty and Breach of Duty ................................ 41

a) Ordinary Care ............................................. 44

b) Duty to provide assistance .......................... 44

c) No Duty to Warn ......................................... 45

d) Negligent Supervision, Negligent Training ... 47

e) No Duty to Provide Unnecessary Assistance 48

f) No evidence that the work is unusually

precarious .................................................. 49

g) No evidence that the job required specialized

training ...................................................... 50

h) No evidence that additional personnel were

necessary ................................................... 50

i) No obligation to dissuade ............................ 51

2. Proximate Cause............................................. 52 iv

a) Generally .................................................... 52

b) Medical Causation ...................................... 54

1. Bracken’s Deposition Excerpts ....................... 58

2. Owner’s Manual .............................................. 58

3. Rollins Affidavit ............................................. 59

4. Barnett Letter ................................................ 60

3. THE TRIAL COURT ERRED IN GRANTING MPF’S

MOTION FOR SUMMARY JUDGMENT..................... 64

1. Duty ............................................................... 65

2. Breach of duty ................................................ 67

3. Proximate Cause............................................. 68

1. Owner’s Manual .............................................. 69

2. Rollins Affidavit ............................................. 71

v 3. Thorpe Affidavit ............................................. 72

4. The ANSI Standard and "Statement of Best

Practices” ...................................................... 75

CONCLUSION AND PRAYER ........................................... 76

CERTIFICATE OF COMPLIANCE ..................................... 78

CERTIFICATE OF SERVICE............................................ 79

vi

INDEX OF AUTHORITIES

CASES

Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015) ........ 46, 48

City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134

(Tex. App.—Dallas Sept. 18, 2007, no pet.) ................................ 55

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671

(Tex.1979) ................................................................................. 32

Cotton Patch Cafe v. McCarty, 2-05-082-CV, 2006 WL 563307 (Tex.

App.—Fort Worth Mar. 9, 2006, no pet.).................................... 55

Cunningham v. Columbia/St. David's Healthcare System, L.P.,

185S.W.3d 7 (Tex.App.-Austin 2005) ................................... 73, 74

Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) ........ 75

Dawson v. Briggs, 107 S.W.3d 739 (Tex. App.—Fort Worth 2003, no

pet.) .......................................................................................... 55

Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.]

1994, n.w.h.) ....................................................................... 37, 38

Figueroa v. Davis, 318 S.W.3d 53 (Tex. App.—Houston [1st Dist.]

2010, no pet.) ............................................................................ 55 vii

Goodwin v. Bluffton Coll., 2004-Ohio-2223 ................................... 65

Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725 (Tex. App.—

Houston [14th Dist.] 2004) ........................................................ 55

Gutierrez v. Gutierrez, 86 S.W.3d 729 (Tex.App. -El Paso 2002) .... 74

Halliburton Oil Well Cementing Co. v. Groves, 308 S.W.2d 919 (Tex.

Civ. App. 1957) ......................................................................... 54

Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152 (Tex. App. 2009) . 33

Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ

dism'd.) ..................................................................................... 64

Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172

(Tex. 2004) ................................................................................ 60

In re Hawk, 5 S.W.3d 874 (Tex.App.-Houston [14 Dist.] 1999) ...... 64

In re Prot. of H.W., 85 S.W.3d 348 (Tex. App. Tyler 2002) .............. 36

Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006.) ....................... 42

Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000) ............................. 41

Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL 4594098 (Tex.

App. July 30, 2015) ............................................................. 52, 53

Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d 757

(Tex. App. 1997) ........................................................................ 65 viii

Lifestyle Mobile Homes v. Ricks, 653 S.W.2d 602 (Tex. App.-

Beaumont 1983, writ ref'd n.r.e.)).............................................. 36

McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App.

1974), writ refused NRE (June 12, 1974) ................................... 49

McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954) abrogated

by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)) ... 51

McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299 (Tex.Civ.App.

-Dallas 1968) ............................................................................ 63

Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) ......... 55

Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985) .... 34

Rea v. Cofer, 879 S.W.2d 224 (Tex. App. 1994) ............................. 37

Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972) ............................... 32

Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San

Antonio 1995) ..................................................................... 67, 76

Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364

(Tex.App.-Dallas 1984, no writ) ................................................. 63

Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-00290-CV, 2013 WL

6797871 (Tex. App. Tyler, Dec. 20, 2013), review denied (Aug. 22,

2014) .................................................................................. 32, 35 ix

STATUTES

Tex. Gov't Code Ann. § 22.220 ........................................................ 5

Tex. Labor Code Ann. § 406.033 ................................................... 41

OTHER AUTHORITIES

ANSI’s STATEMENT OF BEST PRACTICES OF GENERAL TRAINING AND

FAMILIARIZATION FOR AERIAL WORK PLATFORM EQUIPMENT, February

2010 ......................................................................................... 75

RULES

Tex. R. Civ. P. 1 ............................................................................ 64

Tex. R. Civ. P. 193.6(b) ................................................................. 72

Tex. R. Civ. P. 270 ........................................................................ 62

Tex. R. Ev. 201 ............................................................................. 76

Tex. R. Ev. 803(4) ......................................................................... 59

Tex. R. Ev. 901 ............................................................................. 60

REGULATIONS

A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING

WORK PLATFORMS ............................................................ 66, 67, 75

x

CONSTITUTIONAL PROVISIONS

Tex. Const. art. V, § 6 ..................................................................... 5

xi

STATEMENT OF THE CASE

1. STATEMENT OF PROCEDURAL HISTORY

This is a non-subscriber suit for a work related injury.

Plaintiffs/Appellants, Gary Rollins and Carla Rollins filed suit on

December 20, 2013. (CCR 1: 1-5.)1 Appellants shall be referred to

as “Rollins” and “Mrs. Rollins” respectively, and “Mr. and Mrs.

Rollins,” “plaintiffs” or “appellants” collectively).

SUMMARY JUDGMENT

Defendant/Appellee, MPF Investments, LLC, d/b/a "A-1 Rent

All" (hereinafter “MPF”) filed a motion for summary judgment on

January 15, 2015. (CCR 2:104–248.) On the very same day defendant

Texas College (hereinafter “TC”) filed a motion for summary

1 The original clerk’s record (herein cited as “CR”) was missing bookmarks and was not text searchable. It was also missing certain designated records. As a result of requests for supplementation and a motion to correct the record, the trial clerk filed a supplemental record (herein cited as “SR”) and a “corrected” clerk’s record (herein cited as “CCR”). The “corrected” record was filed with volumes 2 and 3 containing the same pages, volume 12 completely missing, certain missing pages and several pages out of order. As a result, it is necessary to refer to the original record (CR) at times. Since the page numbers in the CR and the CCR are the same, the court can consult the CCR unless it finds a necessary page missing, in which case it will have to consult the non-searchable CR.

2

judgment. (CCR 4:249-5:497.) Mr. and Mrs. Rollins filed a response

to TC’s summary judgment motion on February 4, 2015 (CR 6:815-

22:3234) and a response to MPF’s summary judgment motion on

February 6, 2015. (CR 22:3241 -24:3474.)

TC filed a summary judgment reply on February 12, 2015 (CCR

21: 3512–3645) and MPF filed a summary judgment reply on

February 13, 2015 (CCR 22:3701–3736). MPF’s reply included a

series of objections and request to strike plaintiffs’ summary

judgment evidence.

MOTIONS TO STRIKE

During the pendency of the summary judgment motions, MFP

and TC filed a joint motion to strike Rollins’ designation of Burt

Thorpe, a safety expert, on January 23, 2015. (CCR 5:508 – 567.)

Appellants filed a response on February 3, 2015. (CCR 6:700 – 746.)

MFP filed a reply on February 9, 2015. (CCR 21: 3475-3484.) Rollins

filed a sur-reply (erroneously titled “reply”) on the same day (CCR

21:3485-3495.)

On January 26, 2015, MPF and TC also filed a joint motion

requesting that “the reports and any opinions” of Gilbert Martinez,

Joe G. Gonzales, and Thomas M. Roney - a neuropsychologist,

3

medical doctor, and economist, respectively. (CCR 6:568-699.)

Rollins filed a response on February 3, 2015. (CCR 6:747 -7:813.) A

joint reply was filed on February 6, 2015 (CCR 20:3235-3239.)

On February 13, 2014 TC filed objections and a motion to strike

evidence and references in Rollins’ responses to TC’s motion for

summary judgment. (CCR 22:3666 – 3700.) Rollins filed a response

on February 13, 2015. (CCR 22:3737 – 23:3922.)

THE FEBRUARY 19 ORDERS

On February 19, 2015, the trial court issued a series of orders

relating to the summary judgments and the evidence. The court

granted the joint motion to strike the designation of Rollins’ liability

expert, Burt Thorpe, (CCR 24:3923). The court also granted nearly

all of the requests to strike portions of Rollins’ affidavit.

(CCR 24:3925-3934.) The court also sustained the objections to

summary judgment evidence set forth in MPF’s summary judgment

reply. (CCR 24:3936-3937.) However, the court denied the joint

motion to strike the reports and opinions of Gilbert Martinez, Joe G.

Gonzales, and Thomas M. Roney. (CCR 24:3924.) Finally, the court

granted TC’s motion for summary judgment (CCR 24:3935), and

granted MPF’s motion for summary judgment (CCR 24:3938).

4

RECONSIDERATION

On February 24, 2015 Mr. and Mrs. Rollins filed an emergency

motion to reopen the evidence. (CCR 24:3939 – 4027.) On the same

day Mr. and Mrs. Rollins also filed a motion to reconsider regarding

TCs motion for summary judgment. (CCR 24:4028 – 4136) On

March 2, 2015 they also filed a motion to reconsider MPF’s motion

for summary judgment. (SR 10-23).

On March 9, 2015, TC filed a response to the emergency motion

to reopen the evidence. (CCR 25:4151-4163.) On March 11, 2015,

TC filed a response to the motion to reconsider. (CCR 25: 4164 –

4170.) On March 12, 2015, MPF filed its response to the emergency

motion to reopen the evidence. (CCR 25:4171 – 4176).

On March 17, 2015, the court below, denied Mr. & Mrs. Rollins’

motion for reconsideration of the TC summary judgment (SR 7), and

also denied their motion to reopen the evidence (SR 8).

On April 10, the Court below denied Rollins’ motion for

reconsideration of the MPF summary judgment. (CCR 25:4180.)

A notice of appeal was filed on May 8, 2015. (CCR 25:4181-

4183) The clerk’s record was filed (incorrectly) on June 9, 2015. A

supplemental record was filed on September 2, 2015. A “corrected”

5

record (with significant omissions) was filed on September 15, 2015.

Due to the fact that the trial court held no oral hearings before ruling

to strike the evidence and grant summary judgment, there is no

reporter’s record.

2. STATEMENT OF JURISDICTION

This Court has jurisdiction under Tex. Const. art. V, § 6

and Tex. Gov't Code Ann. § 22.220.

6

STATEMENT REGARDING ORAL ARGUMENT

No oral argument was had in the court below. Appellants

believe the lack of oral argument contributed to the erroneous rulings

of the lower court. The orders of dismissal contain no discussion of

the testimony as they relate to the elements of the claims. Also, the

court below has stricken factual statements made in the affidavit of

an unsophisticated lay witness, plaintiff/appellant, Garry Rollins.

They were stricken because the lower court believed they were either

inconsistent with his deposition testimony, or simply beyond his

competence.

Oral questioning of counsel will be the most effective way for

this Court to extract a detailed and accurate presentation of the

parties’ arguments on consistency (or inconsistency) of the evidence.

Oral argument will thus emphasize and clarify the written

arguments, significantly aiding the decisional process of this Court.

7

ISSUES PRESENTED

1. Whether the Trial Court Erred in Granting the Motion for Summary Judgment of Texas College and Its Underlying Objections to Evidence.

2. Whether the Trial Court Erred in Granting the Motion for Summary Judgment of MPF and Its Underlying Objections to Evidence.

3. Whether the Trial Court Abused Its Discretion in Refusing to Re-Open the Evidence.

8

STATEMENT OF FACTS

1. SUMMARY Gary Rollins was injured when he “blacked out” and fell during

an attempt to dismount from the platform of a “scissor lift.” Over his

own protest, he had been ordered to “get up there” and patch the

high ceiling of a gymnasium. Defying all common sense, his direct

supervisors ordered him “up there” knowing that he suffered from

a fear of heights and “syncope,” a condition which causes

frequent and unpredictable loss of consciousness. Moreover, he

had not received training or instruction on the use of the lift.

2. LITIGATION FACTS.

Despite its simplicity, the case below was hotly contested by

Texas College, a non-subscriber to the workers compensation

system, and TC’s co-defendant. From the beginning the case was

burdened with numerous aggressive filings -- special exceptions,

motions to compel, motions to strike evidence, and motions for

summary judgment. (CCR passim).

9

Eventually, the case reduced to two (2) summary judgment

motions and a number of supporting motions to strike evidence. On

February 19, 2015 the trial court simultaneously issued orders on

all of the pending motions.

The court sustained numerous objections to many parts of the

summary judgment evidence (CCR 24:3936-3937.), expert

designations (CCR 24:3923), and certain parts of Mr. Rollins’ affidavit

(CCR 24:3925-3934.) – which required redaction. However, as will

be shown below, the striking of the various parts of the evidence

was truly inconsequential. What survived, was ample summary

judgment evidence.

Preserving some significant evidence, the trial court denied

defendants’ request to strike expert reports of certain doctors (CCR

24:3924). These reports had been incorporated by reference into

appellants’ responses to requests for disclosures. The disclosure

responses were specifically used as summary judgment evidence.

(CCR 2:109) (See reference to Exhibit “H”).

Without oral hearing, the trial court granted the motions for

summary judgment.

10

An attempt was made here to draft this statement using only

information from materials on file and documents referenced by the

parties which were not stricken at the time of the February 19 orders.2

These facts do not contain materials submitted on reconsideration or

on the request to re-open the evidence. These facts were not stricken

and were specifically allowed by trial court when it granted the

summary judgments:

3. CASE FACTS

GARY ROLLINS, TEXAS COLLEGE, AND MPF

Gary Rollins worked “at Texas College as a maintenance Tech

and Supervisor for about six years.” (CCR 25:4131). He is 55 years

old. (CCR 3:234). He supervised a small group of three workers.

(CCR 4:322). He was an “excellent” supervisor, according to one co-

2 See Chance v. Elliot & Lillian, LLC, 462 S.W.3d 276, 282 (Tex. App. 2015)

(“we may consider all summary judgment evidence not otherwise excluded from the trial court's consideration.”);; Schronk v. City of Burleson, 387 S.W.3d 692 (Tex. App. 2009) (“Objections to the form of summary-judgment evidence are preserved for appellate review only if those objections are made and ruled on in writing by the trial court”);;Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 497- 98 (Tex. App. 2002) (court will not imply exclusion of summary judgment evidence, absent clear evidence in order). It is understood however, that this Court is in control and may choose not to consider any matter it deems appropriate. See, e.g. B.M.L. Through Jones v. Cooper, 919 S.W.2d 855, 858 (Tex. App. 1996)

11

worker. (CCR 4:430). Roland Brackens (“Brackens”) was his

immediate “supervisor” at the college. (CR 4:292). Brackens had

evaluated Rollins as “honest” “responsible,” and rated him “good” in

“willingness to do work.” (CCR 4:359).

Bracken’s direct supervisor was James Harris, Vice President of

Business and Finance. (CCR 7:930, 21:3513). Dwight Fennel was the

College President (CCR 7:931).

MPF Investments, LLC d/b/a A-1 Rent All (“MPF”), is the

company from whom Texas College rented one of the two scissor lifts

that were in the gym where Mr. Rollins was working on October 22,

2013. (CCR 2:104).

THE FIRST “BLACK OUT” INCIDENT

Rollins first experienced “syncope and associated symptoms”

during a September 2013 physical plant work assignment. (CCR

3:234). On September 8, 2013, Rollins “briefly passed out” after

coughing and sneezing while he was trying to lift a heavy slab of

marble. ROLLIN’S AFFIDAVIT (CCR 25:4132). The next day, September

9. 2013, he “went to the doctor.” Id “He was eventually told he had

an episode of ‘syncope.’” REPORT OF JOE G. GONZALEZ, MD (CCR 6:651).

12

ROLLINS IS DIAGNOSED WITH SYNCOPE

In his expert report to the trial court, Dr. Joe G. Gonzales,3

summarized his medical history of Rollins:

On September 9, 2013, Mr. Rollins was seen at the Emergency Department of Baylor University Medical Center for syncope. It was indicated Mr. Rollins had multiple episodes and each spell was "ppt" by generalized paresthesia, and some lightheadedness. It was also indicated Mr. Rollins had episodes at work, while driving and had several spells that day. It was also noted Mr. Rollins lost consciousness that day and Mr. Rollins had a GCS score of 15.

On September 10, 2013, Mr. Rollins was discharged home in stable condition and was provided a diagnosis of syncope. It was indicated Mr. Rollins was provided discharge instructions for syncope (fainting episode). It was noted Mr. Rollins was provided a work release form which allowed Mr. Rollins to be able to return to work in 2 days with no restrictions.

On October 14, 2013, Mr. Rollins was seen by William J.

Hwang, M.D. for blackout spell during exertion, pain in neck and back, and numbness from the neck down. It was noted Mr. Rollins was lifting a heavy object on September 4, 2013, sneezed during the episode and developed weakness and numbness from the neck down. It was indicated Mr. Rollins passed out twice that day and had felt dizzy and lightheaded prior to blackout spells. …. Dr. Hwang provided assessments of 1 episode of blackout spell, and noted differential diagnoses included syncope versus seizures, stroke and TIA. …. Dr. Hwang advised to follow up with primary care doctor for chest

3 Dr. Joe G. Gonzales is a Physical Medicine & Rehabilitation, Pain Medicine, and Occupational & Environmental Medicine specialist who has practiced Medicine in Texas since 1985. He is the President of the Texas Physical Medicine & Rehabilitation Institute, and the Founder and Medical Director of Physician Life Care Planning, LLC. Dr. Gonzales is a licensed physician in the State of Texas.

13

pain and possible syncope episode such as a cardiogenic syncope and instructed Mr. Rollins NOT TO DRIVE until free from blackout spells for 6 months.

REPORT OF JOE G. GONZALES, MD (CCR 6:646-647) (emphasis added).

NOTICE OF SYNCOPE DIAGNOSIS AND REMOVAL FROM DRIVING DUTY

Importantly, Rollins informed both Harris and Brackens that he

“was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT

(CCR 25:4132). Brackens admitted to hearing about the problem:

“…I left out on the 9th of September and I think I returned on the

17th. I think that's when I -- the day I returned back from vacation.

There was a incident that I heard that he had had a light stroke or a

heart attack or something --…” (CCR 4:382). In addition, on at least

one prior occasion Rollins told Brackens that he was afraid of

heights. (CR 4:294)

In his affidavit, Rollins indicated that he “produced a Doctor

note to prove that [he] had been to the hospital. Mr. Harris and Mr.

Brackens then removed [him] from a driving duty [he] had been

performing for some time at Texas College where [he] would drive

students from Dallas to Tyler to attend classes.” (CCR 25:4132). In

his sworn interrogatory answers Rollins stated that he was “restricted

from driving” in September of 2013. (CCR 3:236).

14

Rollins had been asked to drive TC students on Tuesday and

Thursday mornings. (CCR. 4:306). Brackens testified that he

“knew” about the “park-and-rides” Rollins was “doing” on Tuesdays

and Thursdays. (CCR 4:362). Confirming Rollins’ version of events,

Brackens also testified that he suspected that Harris was responsible

for the suspension:

Q. Who is it -- who is it that likely took him off of the driving detail? A. Mr. Harris. Q. And do you know why Mr. Harris took him off the driving detail? A. No, sir, I do not. Q. Did it have anything to do with Garry having some issues behind the wheel, passing out, that sort of thing? A. That I do not know. I know that he had been in and out sick all the time. That could have been the issue.

(CCR 7:883-883).

THE GROWING ANTAGONISM

During this time, Rollins began “to experience problems getting

along with Mr. Brackens.” (CCR 25:4132). “At times” he questioned

Bracken’s “leadership ability and competence.” Id. Brackens was

having Rollins “perform maintenance and repair jobs that were at

times degrading and a little frightening.” Id. Rollins began to

question the schools attitude toward their safety. (CCR 25:4133).

15

Although he was Rollins’ superior, Brackens admitted that he

resigned because he had “leadership problems” and that employees

were “not listening” to him. (CCR 4:343). A colloquy with counsel

shows that Brackens had an issue with people not taking his orders:

Q. Meaning that people were not respecting your leadership and authority and your position? A. Correct. Q. And why do you think that there was a lack of respect for your authority and leadership at Texas College? A. Don't know. Don't know. That's -- the employees, that's the problems that I had. You cannot make grown folks work, and all I could do was ask them to do jobs and they it wasn't getting done.

(CCR 4:344) (emphasis added).

THE WORK ON OCTOBER 21, 2013

On October 21, 2013 Roland Brackens told Rollins, that “Dr.

Fennel wanted the ceiling in the gym fixed....” and that a “scissor lift

would be out” and to “go in” the gym. (CCR 4:297). Mr. Rollins

described his response: “I expressed to him then I didn’t know how

to use it and I didn’t want to get up on it because I done got too old

and I’m afraid of the height.” (CCR. 4:297). Nevertheless Brackens

told Rollins to get with another employee “Michael Jones” who

16

Brackens claimed knew “how to use it.” (CCR 4:297). Rollins

complied. Id.

After some difficulty with the lift, as Mr. Rollins described: “We

finally got it crunk up, and we went up and patched the roof, the

ceiling. I stayed up there about five minutes on the 21st showing

him what needed to be done, and him and a community service

finished off.” (CCR 4:297) (emphasis added). Although, Rollins had

no “trouble getting off the lift” (CCR 4:299), he was “nervous the

entire time” he was “up there.” (CCR 25:4133). They did not finish

the work that day. (CCR 25:4133).

Bracken’s judgment was not good. Earlier that day he had

instructed the men to put a ladder on top of the scissor lift

platform to reach even higher. (CR. 4:303-304). He admitted to it.

(CCR 4:342). His order was universally rejected by his subordinates

and his superiors. (CCR 4:304). The deposition testimony describes

this crazy suggestion, as well as Rollins’ response in rejecting the

idea:

Q. What other conversation took place? A. I discussed with Mr. Harris Roland told them guys to set a ladder up on top of the lift and get up there because it wouldn't reach a certain height that they had to get to and he told them to set a ladder up on top of the lift and I told

17

them not to set no ladder up on there because they be done fell out and kill theirself. And I told Ms. Bowie and Mr. Harris that. Well, Mr. Harris started laughing about it and said that that was stupid of Roland to even suggest that being in the position that he's in. Q. And you were standing there when Mr. Brackens told this to Stevie? A. No. They came and told me, and I confronted Mr. Bracket about it. Q. Stevie was one of them, was the other one -- A. Mike and Alex. Q. All three. A. Yes. Q. And they told you and then you went -- A. And then I went and talked to Roland about it first, asked him why would he tell them to set a ladder up on that lift. Q. And what did he say? A. He said that Dr. Fennell want this done, he want it done by Friday, so whatever it takes to get it done, that's what we need to do.

(CCR 24:4041-4042) (emphasis added).

THE CONFRONTATION ON THE AFTERNOON OF OCTOBER 21ST

Rollins’ refusal to obey Mr. Brackens had consequences. Later

that evening Rollins “was called to the office by Mr. Harris and Ms.

Bowie....” (CCR 4:297-298). As Mr. Rollins put it: “…Mr. Bracket

had told them that I said I wasn’t going to get up there and do it….”

(CCR. 4:298). Harris told Rollins that Brackens had “complained”

18

that Rollins was an “ongoing discipline problem” and that Rollins

“didn’t want to do as told.” (CCR 25:4133). “Mr. Harris informed

[Rollins] that in order to keep [his] job [he] needed to get the

ceiling fixed as directed.” Id. (emphasis added).

In his deposition, Rollins described the pressure to be on the lift

due to the presence of a camera in the gym:

Q. Now, I do want to ask you about this conversation. Tell me, just describe in your own words as best you can what you said to them and what they said to you. A. Well, when I walked in the office, I asked Mr. Harris what was going on, and I saw Ms. Bowie. And normally if something is going on that Mr. Harris want me to take care of, he usually calls me up there and I do the job. When I saw Ms. Bowie, I asked them what was going on. They said, "Mr. Bracket said that you won't do nothing he said." And I told them he was a liar. I say, "I done been in the gym this morning and started Mike and them in there patching the roof." We got cameras in there in the gym, and I was seen on the cameras up there on the lift. Q. How do you know that? Was that part of this conversation? A. Was it part of who conversation? Q. The conversation with Mr. Harris and Ms. Bowie? A. Yes. I told them I was seen by Dr. Fennell and Ms. Marshall. Q. On the camera. A. Yes. Q. How do you find out about that? A. Ms. Marshall told me. Q. When did she tell you that?

19

A. That evening on the way home. She said, "I was sitting up here wondering why did you get up on the lift feeling the way you feel." AND I TOLD HER I DIDN'T HAVE NO CHOICE and I got to finish it up tomorrow.

Q. But you were discussing that with Mr. Harris and Ms.

Bowie? A. Yes. Q. But you weren't aware that you were seen on the camera until after you left the campus to go home. A. No, no, no. When we got in the car, Ms. Marshall automatically started talking with me about why would you get up on that lift. … Q. So, tell me -- all right. So, tell me about this discussion then about being on the camera with – I mean, the discussion you had with Ms. Bowie and Mr. Harris about being on the camera. A. It wasn't a long discussion, it was just when I was called in the office that evening, I was already in Ms. Marshall's office sitting in her office. And she sit up there and ask me, "Why would you get up on the lift like that and you know how you're feeling?" So, I told her at that time, "Well, Roland told me that I had to GET UP THERE and get it done." And then in the next two or three minutes, Mr. Harris called my phone and had me come around to his office, we're in the same building. I went around to his office, and he immediately told me that Mr. Bracket said that I wouldn't do nothing he told me to do and I was supposed to been in there fixing that gym and I wasn't even doing that. And I told him that Mr. Bracket is telling a lie, I say Ms. Marshall and Dr. Fennell saw me on there.

Q. So, Ms. Marshall told you that she and Dr. Fennell saw you.

20

A. Yes.

(CCR 4:300 - 303) (emphasis added). Rollins continued to describe

the specific directive he received that afternoon from Mr. Harris:

Q. Did you have any further conversation with Ms. Bowie and Mr. Harris? A. No. As far as on that evening, Mr. Harris just told me that first thing in the morning go in there and get that done, he say, because Dr. Fennell been telling Roland that he wanted to get it done and Roland come up here and say you say you ain't going to do it, but we need to get that done before Friday. I told Mr. Harris, "Mr. Harris, I'm going to tell you like I told Roland, I'm afraid of the height, but I'm going to get in there and I'm going to get it done." And at that time, I was also angry. But when Tuesday came, I went in there and I got it done.

(CCR 4:304-305).

Interestingly, Mr. Brackens testied repeatedly that Rollins was

not at work on the 21st. (CCR 20:3289). But Michael Johnson, a co-

worker indicated that Rollins was there and had instructed him to

disregard the crazy ladder instruction made by Brackens earlier on

that day. (CCR 20:3269).

THE WORK ON OCTOBER 22ND

Rollins testified that he showed up for work at about 7:15 am

on the morning of the 22nd and after a short “McDonalds” breakfast

the crew got to work. (CCR 4:307). He continued:

21

And by that time, the guys would be through picking up trash out through the campus, and we all get started to work. So, on that Tuesday, I knew I didn't have a choice, I feel like my job was in jeopardy and I was still mad and angry. But I went in the gym, me, Steve Alex, Mike hadn't showed up yet, and we try to get the lift started. We couldn't get it started; so, it was another lift on the other end, we went down there and we managed to get that one crunk up. And I went up there and start patching the holes. Maybe five minutes Mike came in, and he told me that he would go ahead and finish it. And I told him, nah, I said, no, Roland done called me in the -- I mean, Mr. Harris done called me in the office yesterday evening because of Roland telling him that I wouldn't do it. He said, "Well, Roland is just lying, we was in here." I said, "Well, I know it" I said, "but I'm not worried about that," I say, "I just need to get this done because I don't need them saying nothing else to me about this gym."

Id. In another exchange, Rollins testified about the situation with

more detail:

Q. And how long were you up on the lift up there by yourself before Mike came in? A. Maybe 5 or 8 minutes. When he came in, I let it down and he got on. And he told me that, "Well, you go ahead and get off, man, because you look like you're scared." I said, "Well, I don't want to be up here anyway, but your uncle went and lied yesterday; so, I got to get this done." Q. So, he and Mike initiated the comment that you go ahead and get down because you look like you're scared. A. Yes. Q. And then you told him no because your uncle -- A. I had to get it done. Q. Because your uncle lied yesterday.

22

A. Yes. I was directed by Mr. Harris to get it done Tuesday. Q. That wasn't T-uesday, was it? A. That was on a Monday when Mr. Harris direct me Tuesday morning GET UP THERE and get it done.

(CCR 309)(emphasis added).

Rollins was “afraid” of working on the scissor lift at that time

“because [he] didn’t know how to operate it, hadn’t been trained, and

was fearful because of [his] injury and blackouts.” (CCR 25:4134).

Harris testified that Rollins was duty bound to get on the lift if

Mr. Brackens told him to – even if Brackens knew about the syncope!

Q. So, you're now going to testify -- or are you testifying now that if a manager knows that an employee is suffering from seizures, the employee should get on the scissor lift if the manager says get up there and do it, is that what you're telling me? A. Yes.

(CCR 868). This is the type of evidence which supports a finding of

gross negligence. Brackens has completely denied the events and

stated that he told Mr. Rollins not to “be in the Gym” on Oct. 22d.

(CCR 4:354).

Rollins “would not have gotten on the lift if [he] had not been

specifically instructed to do so by Mr. Brackens and later by Mr.

Harris.” (CCR 25:4134). “The only reason [he] got on the lift is

23

because [he] was told to do so and was made to feel as though

[his] job depended on it.” (CCR 25:4134-4135) (emphasis added).

Rollins “didn't want to do it.” (CCR 25:4135).

If Mr. Brackens had looked at the owner's manual and informed [Rollins] that a person with blackouts shouldn't be on a lift, [Rollins] would not have gotten on. Mr. Brackens however did not do this. He did not look at a safety manual, and if he did, he certainly did not inform or warn [Rollins] that a person in [Rollins’] condition shouldn't be on a scissor lift.

Id.

THE FINAL “BLACK OUT” AND THE “FALL”

Once Mike “brought the lift down” Rollins “went to exit and fell

from the top of the platform flat on [his] back onto the gym floor.”

(CCR 25:4134). “The top of the lift platform is still a good three feet

off the ground when its all the way down and [he] fell straight back

with nothing breaking his fall.” Id. Rollins does not “remember

taking the first step down.” Id.

Insinuating that Rollins’ prior ordeal (of multiple hospital visits,

medical tests, and ultimate syncope diagnosis) was the first part of

some elaborate fraud, Michael Johnson who is apparently Bracken’s

nephew (CCR 4:309) and was still on the payroll (CCR 4:400) testified

that Rollins looked like he just “let go.” (CCR 4:410). Johnson also

claimed Rollins offered to “take care of” him “when this is over.” (CCR

24

4:413). In a move completely inconsistent with fraud, after the fall,

Rollins said something like “Yea, I’m fine or okay.” (CCR 4:458.) He

told Stevie Barron “that he was just embarrassed.” Id. Rollins was,

in fact, embarrassed and thought he was alright. (CCR 25:4134). He

“tried to get up fast because [he] was more embarrassed knowing that

Dr. Fennell was looking at the cameras.” (CCR 21:3620). “Of course,

[he] later ended up having to have major surgery.” Id.

Regardless, the “stress of the work at that height had [him]

disoriented and dizzy. Id. He was already “nervous being that high

in the air.” Id. All Rollins remembered was “turning around on the

platform, gripping the handrails, and then being on [his] back.” Id.

Q. So, you had a right hand on one handrail and a left hand on the other. A. Yes. Q. While you were still standing on the platform, the floor. A. Right. Q. And then you proceeded to step down -- A. Yes. Q. -- the first step? With your right foot or left foot? A. I don't know was it my right or left, I can't recall. Q. Were you able to step down on that step? A. I stepped down, and when I stepped, I fell. Q. How did you fall?

25

A. I just fell flat on my back, I don't know what happened, I just fell.

(CCR. 21:3619-3620).

THE ATTEMPT TO MANUFACTURE EVIDENCE OF “CONSCIOUSNESS”

In deposition, Texas College’s counsel repeatedly asked Rollins

questions which could be misconstrued. When Rollins said he

remembered “falling,” counsel attempted to make it seem as though

the witness was saying that he was conscious, but Rollins had to

correct the effort of misdirection:

Q. Don't remember if you slipped. A. No. Q. Don't remember if you stumbled? A. No. Q. But you do remember falling down on the floor. A. Yes. Q. So, you were conscious the whole time. A. I don't know if I was conscious or not. When I hit the floor -- right at this time, I don't know what happened. Q. But do you -- you recall falling down, right? A. Yes. Q. You don't recall -- I mean, you recall holding on and then you fell down. A. And that's all I remember.

(CCR 4:313-314).

26

The testimony above makes it clear that Mr. Rollins lost

consciousness or most likely lost consciousness. Despite counsels’

continued attempt to get Mr. Rollins to admit to consciousness

during the fall, the witness simply stated: that he remembered falling

(as in being standing, then being on the ground) – not that he

remembered the entire sequence of the fall.

This testimony was not clearly presented to the trial court, but

instead paraphrased: “Rollins has no explanation as to how he fell;;

just that he fell.” See TC’S MOTION FOR SUMMARY JUDGMENT, p. 2. (CCR

4:250).

Ironically, when cross examined by counsel for MPF, the

syncope explanation becomes more likely:

Q. All right, Mr. Rollins. You testified that before the October 22nd incident you had an issue where you were driving home and you started to black out; is that correct? A. Yes. Q. Okay. Is it a possibility that the day that you fell off the lift that you blacked out and fell on it? A. I really don’t know how to answer that because I really don’t know what happened that day. Q. (BY MR. GEDDIE) Okay. So you agree with me that that’s a possibility that you blacked out that day. A. Again, my response is I don’t know exactly what happened. Q. Can you think of any reason why it could not be an explanation for your fall that you blacked out?

27

A. No.

(CCR 2:155-156) (emphasis added). Rollins explanation might be

simple, but it makes sense: “I shouldn't have been on it.” (CCR

4:317).

THE CONDITION OF THE LIFT AND TRAINING

The lift had been rented by Texas College from MPF. (CCR

5:469). According to Brackens, who signed off on the lift, there was

no owner’s manual on board the lift. (CCR 2:162). Mr. Bracken’s

testified that although he was given instruction on “how to operate”

the lift, he did not pass that training onto his subordinates:

Q. But you didn’t’ turn around and show or train your subordinates how to operate it? A. My subordinates had already been trained, because that is not the first time that we had a scissor lift on the premises and was used. Q. And is proof of training kept in their personnel files? A. No. Q. Why? A. That I can’t answer.

(CCR 2:162). Rollins swore that MFP (A-1) “did not offer us

training” or “familiarize us with the lift.” (CCR 25:4133)

(emphasis added). Mr. Harris, agreed that “untrained employees

shouldn’t be on scissor lifts.” (CCR 7:863).

28

Rollins “hadn’t been trained” and “didn’t know how to operate

it.) (CCR 25:4134). Rollins was “present outside the gym when A·1

Rent All delivered the scissor lift to Texas College.” (CCR 25:4143).

He “asked the delivery person if A·1 would bring the lift inside the

gym and who was going to show [them] how to use it.” Id. “The A·1

person informed [Rollins] that he couldn't bring the lift indoors and

that the folks at Texas College knew how to use the lift.” Id. Rollins

stated that “A-1 did not offer us training nor did it familiarize us with

the lift. The person from A·1 just came and delivered the machine

and left.” Id.

When asked about what training could have made a difference,

Mr. Rollins testified as follows:

Q. Here's my question, and I'm trying to make sure that I'm clear about it: What training could you have been given, if any, if you know, that would have enabled you to get on the lift or get off of it onto the floor any better than you did? A. Any proper training that someone that already knew how to use the lift or someone that already was licensed to use the lift. Q. (BY MR. YARBROUGH) Is that your answer? A. Yes. Q. And how would that specifically have helped you do anything different? A. Then I would have been trained to know how to use it and to get on and off the proper way, operate it the proper way.

29

But it still -- I was still afraid to get on it, period; so, I shouldn't have been on it.

(CCR 4:316-317) (emphasis added).

THE INJURY

Mr. Rollins testified that as soon as he fell, he was “hurting” in

the “back of my neck.” (CCR 4:314). He had no prior complaints

about neck pain:

Q. Yeah. What I'm asking is after you recovered from the first surgery to your neck, two months after that before the incident at Texas College on October 22, 2013, had you complained of pain in your neck"? A. No, I had not complained about pain in my neck.

(CCR 4:318).

In his report to the trial court, Dr. Gilbert Martinez, noted the

link between the fall and Rollins’ neck injury:

Correspondence on July 18, 2014, by Dr. Barnett includes the opinion that there was reasonable medical probability that Mr. Rollins suffered an acute herniated disc at C4-C5 and spinal cord contusion caused by the fall on October 22, 2013, and that he would have chronic pain in his neck and spinal cord dysfunction as a result of the injury.

REPORT OF GILBERT MARTINEZ PHD (CCR 6:611). The photos are telling:

30

REPORT OF JOE G. GONZALES, MD (CCR 6:674). Dr. Martinez’ Report

continues:

3. Mr. Rollins will benefit from a comprehensive pain management program with a focus on interventions designed to reduce the effects of acute and chronic and pain. This should include evaluation by a medical pain specialist who can evaluate Mr. Rollins' potential for benefiting from medical procedures designed to alleviating chronic pain, as well as participation in various therapies designed to improve physical and behavioral adjustment of individuals with chronic pain. Such programs typically include a brief inpatient hospitalization for initial evaluation, medication management, and intensive therapy, followed by a more extended course of outpatient therapy. 4. In addition to the effects of his physical problems, Mr. Rollins' chronic reactive depression will contribute to his functional disability and will have a negative impact on his long-term vocational adjustment. Life care planning should account for Mr. Rollins' significantly diminished occupational potential.

31

REPORT OF GILBERT MARTINEZ, PHD (CCR 6:620). The prognosis if poor

for Gary Rollins:

Based on the known medical conditions, Mr. Gary L.

Rollins will have lifelong, progressive symptoms, physical impairment and subsequent disability which will require long- term medical care.

REPORT OF JOE G GONZALES, MD (CCR 6:628).

SUMMARY OF THE ARGUMENT

When one seeks to win by excluding key evidence on the basis

of strategic, technical grounds, one must live and die by the technical

and strategic failures of one’s own motions. Rather than argue the

merits of this case, Texas College and MPF launched a technical war

and jointly attempted to eliminate all relevant testimony, affidavits,

expert reports, operating manuals, and relevant medical records from

the record. Instead, they failed to convince the court to strike key

parts of Rollins’ Affidavit, they lost a key battle over Doctor Reports

which they introduced and referenced without objection, and they

actually introduced the majority of the testimony which proves their

own liability.

32

Moreover, many of the evidentiary objections were simply

without merit. If revisited by this Court, even more summary

judgment evidence supporting appellants’ claims will surface.

Finally, even on the remote chance more evidence is needed,

this Court should reverse the trial courts denial of the motion to re-

open the evidence.

ARGUMENT

1. STANDARD OF REVIEW

The function of summary judgment is to eliminate patently

unmeritorious claims and defenses, not to deprive litigants of the

right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 n. 5 (Tex.1979); Swilley v. Hughes, 488 S.W.2d 64,

68 (Tex.1972).

Recently in Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-

00290-CV, 2013 WL 6797871, at *7-8 (Tex. App. Tyler, Dec. 20,

2013), review denied (Aug. 22, 2014) this Honorable Court

summarized the standard of review for a case similar to this, which

involved both traditional and no-evidence summary judgments.

TRADITIONAL MOTION STANDARD

33

In Wylie, this Court cited the authority and set forth the

standard:

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. See Randall's Food Mkt., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). When the movant seeks summary judgment on a claim in which the movant bears the burden of proof, the movant must prove all essential elements of the claim. Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 201 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.1979).

Id. at *7 (emphasis added). “In determining whether there is a

genuine fact issue precluding summary judgment, evidence

favorable to the non-movant is taken as true and we make all

reasonable inferences in his favor.” Hernandez v. Brinker Int'l, Inc.,

285 S.W.3d 152, 163 (Tex. App. 2009) (emphasis added). Elements

of the action must be “conclusively” negated in order for the

defendants to prevail. Id. (emphasis added). Any doubts are to be

34

resolved in the non-movant’s favor. Nixon v. Mr. Property

Management, 690 S.W.2d 546, 548–49 (Tex.1985).

As will be shown here, even if one removes from consideration

all of the stricken evidence, there is still a genuine issue of material

fact as to Duty, Breach of Duty and Causation against each

defendant.

NO EVIDENCE MOTION STANDARD

In Wylie, this Court’s explanation of the no-evidence standard

was equally complete:

Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Id.

35

Id. These facts do “more than create a mere surmise of suspicion” of

a negligence claim.

ORDER OF CONSIDERATION

This Court continued in Wylie to explain the proper order of

consideration of the issues:

In both traditional and no evidence summary judgment motions, we review the entire record de novo and in the light most favorable to the nonmovant, INDULGING EVERY REASONABLE INFERENCE AND RESOLVING ANY DOUBTS AGAINST THE MOTION. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Civ. P. 166a(c). If the trial court's order does not specify the grounds on which it granted summary judgment, we affirm the trial court's ruling if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

Moreover, when a party moves for both a traditional and a no evidence summary judgment, generally, we first review the trial court's summary judgment under the no evidence standards of Rule 166a(i). Ridgway, 135 S.W.3d at 600. If the no evidence summary judgment was properly granted, we do not reach arguments made under the traditional motion for summary judgment. See id. at 602.

Id. at *8 (emphasis added). Here, appellant will show that under the

current law there is substantial evidence of the elements of the

claims. In doing so, the showing will also defeat any summary

judgment on traditional grounds.

36

MOTION TO RE-OPEN EVIDENCE

A motion to re-open the evidence is reviewed under an abuse of

discretion standard. In re Prot. of H.W., 85 S.W.3d 348, 358 (Tex.

App. Tyler 2002). In the case of In re Prot. of H.W., this Court

indicated a primary consideration when it stated: “…the trial judge

should liberally exercise his discretion to permit both sides to

fully develop their case. Id. (citing Lifestyle Mobile Homes v. Ricks,

653 S.W.2d 602, 604 (Tex. App.-Beaumont 1983, writ ref'd n.r.e.))

(emphasis added).

As will be shown, the trial court here did the opposite. It struck

evidence on dubious technical grounds and refused to allow

correction of the “alleged” defects. This precluded the parties from

fully developing the case.

SCOPE OF EVIDENCE

On February 19, 2015 the trial court issued 6 orders on six

intertwined matters: Texas College’s two motions for summary

judgment, appellees joint motion to strike the designations and

reports of Dr. Martinez (psychologist), Dr. Gonzales (medical doctor)

and Thomas Roney (economist);; MPF’s motion to strike the

designation and testimony of Burt Thorpe (aerial lift equipment

37

expert);; Texas College’s motion to strike evidence;; and MPF’s

objections to evidence.

When a trial court sets a single hearing for multiple intertwined

motions, the court is free to consider the evidence together. It may

consider evidence advanced by one party in one motion, to support a

motion or response by another party. In Rea v. Cofer, 879 S.W.2d

224 (Tex. App. 1994) the appellant had asserted the discovery rule.

Appellees’ motion for summary judgment, failed to even address the

issue. Nevertheless the Court of Appeals determined that the

omission was not fatal, “because the proof necessary to negate the

discovery rule was contained in [another party’s] motion for summary

judgment on file with the court.” Id. at 228. The Rea court cited

Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.]

1994, n.w.h.) in which the court held that when a trial court sets a

single hearing for multiple motions for summary judgment, the court

may look to other proof on file with the court to determine any of the

motions. In a particularly instructive passage, the Desiga court

stated:

However, in view of the unique circumstances of this case, we find this omission to be not fatal as to Dr. Guerrero's summary judgment for the following reasons. Only one hearing

38

was set for the judge to rule on all of the motions. All of the motions were heard at the same time, January 22, 1993 at 9 a.m. At the same hearing, the trial court heard all of the arguments in support of the various motions. The trial court granted summary judgment for all appellees the same day. In the unique facts and circumstances of this case, to find otherwise would place the trial court in a position of having to engage in the ARTIFICE OF IGNORING Mr. Desiga's deposition testimony which was otherwise on file with the court in the form of the other appellees' motions for summary judgment.

Id. at 253 (emphasis added). The Desiga court noted the Texas

Supreme Court’s increasing leniency with regard to summary

judgment evidence:

We find support for this holding in the Texas Supreme Court’s recent demonstrations of increasing leniency in the areas of both summary judgment proceedings in general and summary judgment evidence specifically. See McConathy v. McConathy, 869 S.W.2d 341, 341 (Tex.1994) (holding deposition excerpts used as summary judgment evidence need not be authenticated to be considered competent summary judgment proof); Mafrige v. Ross, 866 S.W.2d 590, 590 (Tex.1993) (holding parties may make otherwise unappealable order final simply by adding “Mother Hubbard” language in the order). Such a holding with regard to Dr. Guerrero is in effect acknowledging the trial court's capacity to take judicial notice of those documents on file with it at the time of a hearing on a motion for summary judgment. The other parties' motions for summary judgment having been duly filed with the trial court for its consideration constituted part of the record before it.

Id.

39

In addition, both orders of summary judgment contained

language expanding the scope of evidence far beyond the confines of

rule 166a to “any additional briefing accepted by the court.”

(CCR 24:3935 and 24:3938). Thus, this Court need not engage in

the “artifice of ignoring” the evidence that was before the trial court

at the time of the February 19th rulings. It may consider all of the

evidence presented by all the parties together, when deciding the fate

of any particular motion.

2. THE TRIAL COURT ERRED IN GRANTING TEXAS COLLEGE’S TRADITIONAL AND NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

Because the trial court did not hold oral argument and because

its orders are silent as to any reasoning, this brief will examine the

rationale behind appellees’ motions.

NATURE OF CLAIMS INVOLVED

Texas College’s motion is chock full of inapplicable premises

liability cases, as well as cases in which there was no evidence of

unusual danger. Here, there is a singular sterling difference

between the facts of this case and the facts of any case cited in

support of Texas College’s motion. It is the truly insane and

spiteful order for Rollins to “get up there” and finish the work.

40

The order was given despite both Brackens and Harris knowing that

Rollins was “unfit” for the job due to his “black-out” spells. Appellee’s

motions would have this court adopt the standard of liability provided

by Harris in his deposition:

Q. So, you're now going to testify -- or are you testifying now that if a manager knows that an employee is suffering from seizures, the employee should get on the scissor lift if the manager says get up there and do it, is that what you're telling me? B. Yes.

(CCR 7:868). This is not the law. It should not be the law. None of

the cases cited in the motions involve the commanding of an

employee to do a knowingly unsafe act – an act which is not unsafe

because of a premises condition – but is unsafe because the plaintiff

was physically “unfit” for the job – he had fainting spells.

This is not a premises liability case. The only place in

appellants’ pleadings which the word “premises” appears is the

prayer: “WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray….”

(CCR 498-505, 8th Amended) (CCR 92-101, 7th Amended) (CCR 83-

91, 6th Amended). This case involves active and grossly negligent

supervision. As to Texas College, Rollins plead:

Defendant's failure to: 1) provide a reasonably safe workplace; 2) furnish reasonably safe machinery or reasonably

41

safe personal protective equipment for use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff Garry Rollins was fit to perform work on a scissor lift.

7TH AMENDED PETITION (CCR 1:96) (emphasis added).

THE ELEMENTS AND THE EVIDENCE

1. Duty and Breach of Duty

Tex. Labor Code Ann. § 406.033 eliminates significant defenses

in nonsubscriber cases such as this. The provision reads in pertinent

part:

“… it is not a defense that:

(1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death;

or (3) the injury or death was caused by the negligence of a fellow employee.

Id. (emphasis added). The Texas Supreme Court also reaffirmed that

comparative negligence may not be submitted in a nonsubscriber

case. See Kroger Co. v. Keng, 23 S.W.3d 347, 352-53 (Tex. 2000) (“We

therefore hold that a nonsubscribing employer is not entitled to a jury

question on its employee's alleged comparative responsibility.)

Texas College’s motion focused primarily on the lack of duty to

warn of dangers which an employee already appreciates. This theory

42

might have been applicable had Rollins plead “failure to warn.” He

did not.

Texas College made extensive use of Kroger Co. v. Elwood, 197

S.W.3d 793, 794 (Tex. 2006.) See TEXAS COLLEGE MOTION FOR SUMMARY

JUDGMENT (CCR 4:249-271). Elwood was a near frivolous case, with

little in common to the instant case:

Billy Elwood, a courtesy clerk at a Kroger grocery store, was injured when a customer shut her vehicle door on his hand while he was transferring items from a grocery cart to the vehicle. Elwood had placed one hand in the vehicle's doorjamb, and one foot on the cart, to keep the cart from rolling down a slope in Kroger's parking lot.

Elwood, 197 S.W.3d at 794 (emphasis added). But even in Elwood

the Court acknowledge the concept of “duty.” Albeit lengthy, the

following passage from Elwood and its highlighted language shows

why its holding and the holdings of similar cases do not apply here:

An employer has a DUTY TO USE ORDINARY CARE in providing a safe workplace. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975). IT MUST, for example, warn an employee of the hazards of employment and PROVIDE NEEDED safety equipment or ASSISTANCE. Id. However, an employer is not an insurer of its employees' safety. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). It owes NO DUTY to WARN of hazards that are commonly known or already appreciated by the employee. See Nat'l Convenience *795 Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no pet.). It has NO DUTY to provide equipment or ASSISTANCE

43

THAT IS UNNECESSARY to the job's safe performance. See Allsup's Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 438 (Tex.App.—Amarillo 1996, writ denied). And, when an employee's injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is NO EVIDENCE THAT THE WORK IS UNUSUALLY PRECARIOUS. Werner, 909 S.W.2d at 869 (citing Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 251 (1943)).

In this case, there is no evidence that loading groceries on the sloped portion of Kroger's parking lot is an unusually dangerous job, nor is there evidence that other courtesy clerks sustained similar injuries while loading groceries on the sloped lot. Indeed, loading purchases into vehicles is a task performed regularly—without any special training or assistance—by customers throughout the grocery and retail industry. While there is evidence that grocery carts had rolled into vehicles due to the parking lot's slope and may have posed a foreseeable risk of damage to customers' vehicles, this is no evidence that the slope posed a foreseeable risk of injury to Kroger's employees. Elwood presented NO EVIDENCE that his JOB REQUIRED SPECIALIZED TRAINING. See Nat'l Convenience Stores, 987 S.W.2d at 149. Elwood testified that, prior to working at Kroger, he knew it was dangerous to place his hand in a vehicle's doorjamb. Moreover, there is NO EVIDENCE that carts with wheel locks or ADDITIONAL PERSONNEL WERE NECESSARY to safely load groceries. See Allsup's Convenience Stores, 934 S.W.2d at 438.

Kroger had no duty to warn Elwood of a danger known to all and NO OBLIGATION TO provide training or equipment to DISSUADE an employee from using a vehicle doorjamb for leverage. Employers are not insurers of their employees. See Leitch, 935 S.W.2d at 117; Exxon Corp., 867 S.W.2d at 21. Accordingly, without hearing oral argument, we reverse the court of appeals' judgment and render judgment for Kroger. See TEX. R. APP. P. 59.1, 60.2(c).

44

Id. at 794-95 (Tex. 2006) (emphasis added). The highlighted matters

are discussed below:

a) Ordinary Care

First and foremost: Is there really any doubt that a

supervisor who knows his employee is having “black outs” is not

exercising “ordinary care” when he instructs that employee to

“get up there” in a scissor lift and patch the gym ceiling? Mr.

Elwood’s supervisors did not tell him to “get over there and put your

hand in the door jamb.”

b) Duty to provide assistance

Second, the facts here show that Texas College breached the

duty to provide assistance. Recall that on October 21st Brackens

told Rollins that he “had to GET UP THERE and get it done." (CCR

4:303) (emphasis added). But Rollins had safely gotten off the lift

and directed his assistants do the work. He “…stayed up there about

five minutes on the 21st showing him what needed to be done, and

him and a community service finished off.” (CCR 4:297). Mr.

Brackens had been apparently upset by that fact. So later that

afternoon “…Mr. Bracket [sic] had told them that [Rollins] said [he]

wasn’t going to get up there and do it….” (CCR 4:298). So, once

45

again, Rollins was ordered to get up there. “That was on a Monday

when Mr. Harris direct me Tuesday morning GET UP THERE and

get it done.” (CCR 4:309) (emphasis added). Rather than let Rollins

use the assistance of his subordinates to do the patching, as he was

attempting to do on the 21st, Brackens and Harris got mad about it,

and ordered him personally to “get up there” on the 22nd. They made

the order, knowing he had been having “black outs.” The evidence

shows without a doubt that Texas College breached the duty to

provide needed assistance as set forth in Elwood.

c) No Duty to Warn

Here, Rollins is not complaining that Texas College should have

warned him of something he already knew (that it was dangerous for

him to get on the lift in his condition). He certainly knew that. He is

complaining that despite the fact that his employer also knew it, the

employer ordered him to take the risk he did not want to take. This

is not a “failure to warn” case. It is an “ordered to do it” case –

involving active and gross negligence.

Very recently, the Texas Supreme Court answered questions

which had been certified to it by the United States Court of Appeal

for the Fifth Circuit. In the case of Austin v. Kroger Texas, L.P., 465

46

S.W.3d 193 (Tex. 2015), the Texas Supreme Court surveyed the

landscape of cases relating to employer duty in non-subscriber cases.

Although most of the opinion deals with questions of liability relating

to premises defects, the Court mentioned an exception to the “no-

duty” rule in premises cases, which has at least some logical bearing

here:

Instead, the Court's abolition of the no-duty rule should play a role only when an exception to the general rule applies— that is, when the nonsubscribing employer owes a duty despite the obviousness or employee's appreciation of a danger because, despite the awareness of the danger, it is necessary that the employee use the dangerous premises and the employer should anticipate that THE EMPLOYEE IS UNABLE TO TAKE MEASURES TO AVOID THE RISK. In such cases, the employer cannot rely on the fact that the risk was obvious and known to the employee to argue that the employee bears some portion of the responsibility for his own injuries, because the TWCA waives those defenses. Compare Del Lago, 307 S.W.3d at 772–73; Parker, 565 S.W.2d at 520, with Tex. Lab. Code § 406.033(a); Keng, 23 S.W.3d at 352.

Id. at 210 (emphasis added). Here there is active negligence, but even

if it were a premises case, it would be excepted from the no-duty to

warn rule, because Rollins, being ordered to “get up there,” was

“unable to take measures to avoid the risk.” Once he obeys the

47

master’s orders, the risk is unavoidable. He is up high, in harm’s

way, subject to “blacking out.”

d) Negligent Supervision, Negligent Training

In addition, as the Texas Supreme Court noted in Austin:

Thus, when a claim does not result from contemporaneous activity, the invitee has no negligent-activity claim, and his claim sounds exclusively in premises-liability. See Shumake, 199 S.W.3d at 284; Keetch, 845 S.W.2d at 265.

But when the landowner is also an employer and the invitee is also its employee, this additional relationship may give rise to additional duties, such as a DUTY TO PROVIDE NECESSARY EQUIPMENT, TRAINING, OR SUPERVISION. …..

When an injury arises from a premises condition, it is often the case that any resulting claim sounds exclusively in premises liability, but that is not necessarily the case. An injury can have more than one proximate cause. Del Lago, 307 S.W.3d at 774; Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.2001). The fact that Austin alleged that a condition of the premises proximately caused his injury does not preclude his allegation that Kroger's negligent failure to provide the Spill Magic system also caused his injury. If the only relationship between Austin and Kroger were that of landowner–invitee, the alleged facts could only give rise to a premises-liability claim. …..

AS AUSTIN'S EMPLOYER, KROGER OWED AUSTIN duties in addition to its premises-liability duty and ITS DUTY NOT TO ENGAGE IN NEGLIGENT ACTIVITIES, including the duty to provide Austin with necessary instrumentalities.

48

Id. at 215-16 (emphasis added). Here, there is not even an allegation

of premises liability, such as in Austin. But it is clear that the Texas

Supreme Court acknowledges the duties owed in this case.

The evidence of negligent supervision is glaring. Not only did

Harris and Brackens give Rollins a foolish order to “get up there”

(CCR 4:303, 4:309), Brackens admitted that he had “leadership and

authority” problems (CCR 4:344). He had even suggested they put a

ladder on the platform to reach even higher. (CCR 4:303-304). This

is a textbook “reasonable person” failure.

As far as negligent training, Brackens admitted that he did not

pass the training he received on to his subordinates. (CCR 3:162).

(CCR 25:4133). Rollins “hadn’t been trained” and “didn’t know how

to operate it.) (CCR 25:4134) Mr. Harris, agreed that “untrained

employees shouldn’t be on scissor lifts.” (CCR 7:863).

e) No Duty to Provide Unnecessary Assistance

This statement in Elwood is a non-sequitur. Who needs

“unnecessary” assistance? Here, to avoid undue risk, the assistance

Rollins wanted was necessary. It is not outlandish to require a

supervisor with knowledge of the risk that one of his employees may

suddenly fall, to provide assistance and prevent it. See e.g.

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McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App.

1974), writ refused NRE (June 12, 1974). In McEachern, the Court of

Appeals reversed and rendered a verdict for the plaintiff because it

was reasonably foreseeable that a patient who was on table in

emergency room of hospital might faint as result of psychogenic

shock, or some similar event, and that the hospital was under duty

to have someone in attendance with patient and keep proper lookout

for his safety.)

f) No evidence that the work is unusually precarious

This statement in Elwood distinguishes the case quickly.

Elwood, involved loading groceries on the sloped portion of Kroger's

parking lot – “a task performed regularly—without any special

training or assistance—by customers.” Elwood, 197 S.W.3d at

795. Here, there is no indication that untrained students were using

the scissor lift regularly. It goes without saying that elevating one’s

self to the top of a gymnasium ceiling on a “scissor lift” is precarious.

50

(CCR 21:3467)

g) No evidence that the job required specialized training

Here, again the case facts are opposite Elwood. Even Mr. Harris

said that that “untrained employees shouldn’t be on scissor lifts.”

(CCR 7:863).

h) No evidence that additional personnel were necessary

Once again, this case is different from Elwood. Here, Rollins

used additional personnel on the 21st without incident, and let them

finish the work. (CCR 4:297). But on the 22d, the order of “get up

51

there” forced him upon the lift, when using his subordinates would

be the safer choice.

i) No obligation to dissuade

Finally, this case is different from Elwood and its companions

in that Rollins’ superiors were commanding him to take the

dangerous action. They were not watching him do it on his own and

failing to “dissuade” him. They were “persuading” him to do it under

threat of insubordination and possible termination. As the Texas

Supreme Court Stated in Austin: “an employee always has the option

to decline to perform an assigned task and incur the consequences

of that decision.” 465 S.W.3d at 214 (citing in jest, the long abrogated

McKee v. Patterson, 153 Tex. 517, 525, 271 S.W.2d 391 (1954)

abrogated by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.

1978)). Even McKee recognized that its “no duty” rule had limits:

This extreme common law view, which traded on the economic necessity of the workman to earn a living, resulted in the adoption of Liability and Compensation Acts to offer a measure of certain protection to the workman. The plaintiff here collected benefits under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. In cases where legislation has not abolished the defense of assumed risk, the common law rule still prevails in this country in master and servant relationships.

Id. at 396 (emphasis added).

52

In sum, the trial court either misread or misapplied the law and

facts on the concept of “duty.” There are several duties which apply

here: 1) the exercise of ordinary care; 2) the duty to provide

assistance; 3) the duty to provide adequate supervision; and 4) the

duty to provide proper training. Texas College commanded Rollins to

“get up there” without any training, and more importantly, while

knowing he had been suffering “black-outs.” This simple act

breached all of these duties.

2. Proximate Cause

a) Generally

In Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL

4594098 (Tex. App. July 30, 2015) the Court affirmed a lower court

judgment against the employer and summarized the requirements of

causation in a non-subscriber case:

Proximate cause consists of two elements: cause in fact and foreseeability. Del Lago Partners, Inc., 307 S.W.3d at 774.

Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury, which would not otherwise have occurred. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). Cause in fact is not shown if the defendant's conduct did no more than furnish a condition that made the injury possible. Id. The second element of proximate cause, foreseeability, requires that a person of ordinary intelligence should have anticipated the danger created by the negligent act or

53

omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). These elements cannot be established by mere conjecture, guess, or speculation. Id. at 477. Proximate cause may, however, be established by direct or circumstantial evidence and the reasonable inferences drawn from that evidence. Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 889 (Tex.App.–Texarkana 2004, pet. denied) (citing McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980)).

Id. at *11 (emphasis added).

The negligent order was the cause in fact of the fall. Here it was

more than a substantial factor in causing Mr. Rollins to fall. Mr.

Rollins swore that he “would not have gotten on the lift” but for the

order by Brackens and Harris. (CCR 25:4134). By simple logic, the

fall would not have occurred had he not been ordered to “get up

there.”

The accident was foreseeable here. It simply defies logic to

believe that Brackens should not have foreseen the possibility of

Rollins falling. Rollins informed both Harris and Brackens that he

“was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT

(CCR 25:4132). They had removed him from driving duty (CCR

25:4132), presumably to prevent an accident.

Certainly an order to engage in a negligent activity can be the

proximate cause of an accident. In Halliburton Oil Well Cementing

54

Co. v. Groves, 308 S.W.2d 919 (Tex. Civ. App. 1957), writ refused

NRE, the court found that a supervisor’s negligent direction to an

employee to apply an excessive “pull” on some tubing was a

“proximate cause” of the crown block breaking – an event which killed

the employee. Id. at 933. Similarly, an order to “get up there”

knowing the possibility of a black out, can be the proximate cause of

a fall.

b) Medical Causation

It is assumed that Appellees worked so hard at the trial court

level to exclude the doctor’s reports because they knew they needed

to defeat Rollins on the issue of medical causation. They tried

mightily to eliminate proof that the fall caused Rollins’ neck injury.

But they succeeded only in excluding the letter from Rollins’ treating

physician Samuel Barnett, MD. They did this by convincing the lower

court that the letter had not been properly authenticated. However,

it was properly authenticated as will be shown below in the next

argument. Nonetheless, there are two reasons why excluding Dr.

Barnett’s letter is irrelevant.

First, in a personal injury and fall case, lay testimony on

injury causation is sufficient:

55

…non-expert evidence may be sufficient to support a finding of causation in cases where both the occurrence and the medical conditions complained of are such that the general experience and common sense of lay persons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.

City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134, at

*1 (Tex. App.—Dallas Sept. 18, 2007, no pet.). Texas law is replete

with cases on the topic. See e.g. Morgan v. Compugraphic Corp., 675

S.W.2d 729, 733 (Tex. 1984) (temporal connection to time of exposure

and physical proximity to fumes per testimony of plaintiff was

competent evidence that her alleged injuries were caused by the

release of chemicals.); Figueroa v. Davis, 318 S.W.3d 53, 61 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (plaintiff’s testimony about

broken teeth after car accident sufficient); Cotton Patch Cafe v.

McCarty, 2-05-082-CV, 2006 WL 563307, at *3 (Tex. App.—Fort

Worth Mar. 9, 2006, no pet.) (trip and fall case with plaintiff

testimony about injuries and doctor visits sufficient); Dawson v.

Briggs, 107 S.W.3d 739, 754 (Tex. App.—Fort Worth 2003, no pet.)

(plaintiff’s lay testimony about jaw problems after wreck was

sufficient).

In Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725, 744

(Tex. App.—Houston [14th Dist.] 2004), review granted, judgment

56

vacated, and remanded by agreement (Mar. 4, 2005) the court stated

that lay testimony which establishes a sequence of events

providing a “strong, logically traceable connection between the

event and the condition is sufficient proof of causation.”

Here, Rollins’ affidavit indicated that as a result of the accident

he “ended up having to have major surgery.” (CCR 25:4134). Rollins’

affidavit also indicates that immediately after the fall, he “could not

move at first” and “eventually” rolled over onto his feet. (CCR

25:4134). Rollins described the fall as “I just fell flat on my back and

my neck.” (CCR 4:311). Dr. Barnett’s surgery discharge summary

in the medical records filed by Texas College shows that his major

neck surgery happened on October 26, just a few days after the

October 22nd fall. (CCR 8:1050). The records also indicate a primary

diagnoses of “syncope and collapse.” (CCR 8:983). Certainly this is a

strong, logically traceable connection between the event and the

condition.

Second, the attempt at excluding the Dr. Reports failed. The

trial court denied the motion to strike them, and they contained the

very same information appellees were seeking to exclude by keeping

out the Barnett letter. The disclosure responses which incorporated

57

the reports, were specifically used as summary judgment evidence.

(CCR 2:109) (See reference to summary judgment exhibit “H” -

Plaintiffs' Fifth Supplemental Responses to Requests for Disclosure.).

The language of the reports leaves little doubt as to medical

causation:

Correspondence on July 18, 2014, by Dr. Barnett includes the opinion that there was reasonable medical probability that Mr. Rollins suffered an acute herniated disc at C4-C5 and spinal cord contusion caused by the fall on October 22, 2013, and that he would have chronic pain in his neck and spinal cord dysfunction as a result of the injury.

REPORT OF GILBERT MARTINEZ PHD (CCR 6:611).

In summary, there is ample evidence of duty, breach of duty,

and causation. It was all still before the court after the onslaught of

exclusionary rulings. The summary judgment granted in favor of

Texas College should be reversed.

ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN

Even if one assumes that somehow more evidence is needed to

defeat Texas College’s summary judgment motion, more evidence can

be considered (see argument, infra). The trial court made numerous

basic errors when it granted Texas College’s Motion to Strike

Evidence (and related references in appellants’ response). Since the

58

order itself contains most of the text of what was stricken, it serves

as an easy guide to follow with the argument. It is contained in the

appendix as “FEB 9 ORDER ON TC EVIDENCE OBJECTIONS.”

1. Bracken’s Deposition Excerpts

A brief review of page 2 of the order indicates that the court

struck evidence to which Mr. Brackens was qualified to speak. He

indicated that he had received “scissor lift” training in his deposition.

(CCR 2:162). Moreover, he is simply reading the conditions

prescribed by a regulation and then stating (with his personal

knowledge) that the conditions required “did not take place.” (CCR

24: 3926).

2. Owner’s Manual

This was excluded on page 3 of the order. Perhaps it was not

noticed, but the manual was authenticated during Mike Frazier’s

Deposition:

Q. (BY MR. SIGMON) Have you ever seen this document before? A. sure. Q. Okay. What is this? A. This is the operation and safety manual that's inside the scissor lift.

59

(CCR 20:3319). It is certainly relevant and Mr. Frazier is certainly

qualified. He is the “Manager of A-1 Rent All.” (CCR 2:172). It should

not have been excluded.

3. Rollins Affidavit

Parts of the Rollins affidavit were redacted based upon the order

of the Court. Although the redacted version was plenty to support

the statement of facts set forth in this brief, some additional relevant

material should not have been taken from the affidavit.

The objection labelled “D-3” on page 4-5 of the order should not

have been sustained. Mr. Rollins is perfectly qualified to authenticate

the excuses given to him by his Doctors.

The objection labelled “D-6” on page 5 of the order should not

have been sustained. Mr. Rollins is qualified to testify as to what his

doctor told him, and it is clearly admissible hearsay, because it is a

statement made for the purpose of medical diagnoses and is

admissible pursuant to 803(4) of the Texas Rules of Evidence.

The objection labelled “D-7” on page 5 of the order should not

have been sustained. It is not hearsay. He is simply stating what he

was directed to do. Moreover, he is qualified to authenticate a note

given to him by his doctor.

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4. Barnett Letter

The objection labelled “D-15” on page 7 of the order should not

have been sustained. This is Mr. Rollins’ authentication of the letter

from Dr. Barnett, the non-paid, treating physician who performed the

surgery on Rollins. In its motion to exclude, Texas College did not

object to the effort of Mr. Rollins to authenticate it. That is no doubt

because they were aware of the significant body of law allowing lay

witnesses to identify and authenticate correspondence. See, e.g.

Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 177

(Tex. 2004) (Dunwoody's affidavit also authenticates correspondence

that passed between the condemnors and the landowners).

Moreover, the bar on authentication is very low. Rule 901 of the

Texas Rules of Evidence merely requires that a witness with

knowledge testify “that an item is what it is claimed to be.” Tex. R.

Ev. 901. Rollins’ affidavit clearly does that with respect to the letter:

My surgeon’s letter to my lawyer describing my injury is attached to my affidavit as Exhibit D. I have reviewed this document with my lawyer and I am familiar with my surgeon's opinion. He provided the letter in connection with this case.

ROLLINS AFFIDAVIT (CCR 7:888).

61

Texas College’s only objection to the Barnett Letter is a stock

objection that does not apply. The objection in its entirety is as

follows:

This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not considered by the Court because the information is hearsay. The letter attached to Rollins' affidavit as Exhibit D is incompetent hearsay for which no exception applies. Mr. Rollins' sole purpose for including such records is to prove the truth of the matter asserted by Mr. Rollins. Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit and the exhibit referenced should be sustained, and this portion and the exhibit stricken and disregarded by the Court.

(CCR 22:3678) (emphasis added). The objection is simply erroneous

and inapplicable. Rule 803(4) specifically reads as follows:

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

TX R EVID Rule 803. A simple review of the letter indicates that it is

precisely what the rule applies to. See BARNETT LETTER (in Appendix).

The Barnett letter should not have been excluded.

THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE

Appellants sought leave to introduce two pieces of evidence in

its motion to re-open the evidence. However, they now complain only

62

about the trial court’s refusal to consider the Barnett Affidavit. See

BARNET AFFIDAVIT (in Appendix). Dr. Barnett's sworn affidavit offers

nearly the exact same information that is contained in the Barnett

Letter. See BARNETT LETTER (in Appendix). Thus, this appellate

request is superfluous in the event that this Court agrees that the

letter was properly authenticated. Moreover, since the opinions of

Dr. Barnett were also summarized by Dr. Gonzales in his report, this

argument is, in reality, a fourth tier of insurance. For this issue to

be decisive, this Court would first have to: (1) reject Rollins’ lay

testimony combined with the medical records already in evidence, (2)

reject the use of Dr. Gonzales report, and (3) rule that Rollins was

unqualified to authenticate correspondence about his own treatment

from his treating physician. Nevertheless, in the event of such a slim

possibility, this Court should then concern itself with fairness - not

technicalities.

A trial court may permit a party to offer other additional

evidence when it "clearly appears to be necessary to the due

administration of justice." Tex. R. Civ. P. 270. In determining whether

to grant a motion to reopen, the trial court considers whether: (1) the

moving party showed due diligence in obtaining the evidence, (2) the

63

proffered evidence is decisive, (3) reception of such evidence will

cause undue delay, and (4) the Court's refusal will cause an injustice.

Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364, 366-67

(Tex.App.-Dallas 1984, no writ). The trial court should exercise its

discretion liberally "in the interest of permitting both sides to fully

develop the case in the interest of justice." Id. at 367.

The subject matter of the Barnett letter/affidavit is highly

relevant, material, and (as noted above) potentially decisive. There

was no lack of diligence in securing this evidence, rather, the

evidence was offered as a narrative opinion letter early on. It was

properly attached to, and authenticated by Rollins’ summary

judgment affidavit.

It was shortly after the letter was stricken that Rollins’ counsel

sought to cure the alleged (but non-existent) defect by reformulating

it as an affidavit and obtaining the Doctor’s oath. It was provided to

the court in a motion for reconsideration, and as a motion to reopen.

Reopening a case for the reception of additional evidence is

discretionary. See McRoy v. Riverlake Country Club, Inc., 426 S.W.2d

299 (Tex.Civ.App. -Dallas 1968). The discretion is to be liberally

exercised, particularly if doing so is in the interest of justice. Id. See

64

also, Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ

dism'd.) (Court stating there are occasions where it may be the court's

duty to grant the motion to reopen). Appellees would not have been

prejudiced if the trial court had granted appellants’ request. Dr.

Barnett's opinion was known to Texas College. The affidavit format

is virtually identical in substance to the letter disclosed to defense

counsel during discovery.

Appellants have meritorious claims in this non-subscriber case

that should have survived summary judgment. If there was a defect,

the affidavit cured it. The trial court should have exercised its

discretion flexibly "to obtain a just, fair, equitable and impartial

adjudication of the rights of litigants under established principles of

substantive law." Tex. R. Civ. P. 1. See also In re Hawk, 5 S.W.3d

874 (Tex.App.-Houston [14 Dist.] 1999).

3. THE TRIAL COURT ERRED IN GRANTING MPF’S MOTION FOR SUMMARY JUDGMENT The rental company should not “get a pass” for renting

dangerous construction equipment without including operator safety

manuals.

65

THE ELEMENTS AND THE EVIDENCE

1. Duty

In Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d

757 (Tex. App. 1997) the Court of Appeals reversed a directed defense

verdict in a case involving a death due to improper operation of a

crane. Among the significant facts of the case, the court described

the following:

…there was no operator's manual present, and, that the operator's manual that should have been in the crane contained specific instructions to avoid moving the crane until all personnel are clear. Wiethorn further testified that there was no load chart to comply with the American National Standards Institute (ANSI) within the crane. The operator's manual was required by OSHA and ANSI to be kept in the cab at all times. According to Wiethorn, OSHA and ANSI standards applied to this particular crane and Coastal could have easily provided the people who worked with the crane with the pertinent OSHA standards regarding its operation. He testified that proper operation of a crane calls for the operator to be thoroughly conversant with the crane's operating manual, which the crane operator could not have done in this case because it was not present in the cab.

Id. at 760-61 (emphasis added). The court indicated that even

though the general contractor [Coastal] did not control the crane,

“Coastal had a responsibility to ensure a safe and suitable crane…”

Id. at 761. See also Goodwin v. Bluffton Coll., 2004-Ohio-2223

(material issue of fact as to whether company's breach of duty to

66

provide college with safety instruction manuals and safety

components necessary for proper erection of scaffolding was

proximate cause of student's death precluded summary judgment.).

Here the situation is similar: although A-1 (MPF) did not control

the situation in the gymnasium on the day Rollins was injured, they

had a duty to provide a “safe and suitable” scissor lift.

A scissor lift is a piece of heavy machinery governed by CFR

1926.454 of the Occupational Health and Safety Act (“OSHA”) as a

"mobile scaffold". The American National Standards Institute

("ANSI") safety standard A92.6, AMERICAN NATIONAL STANDARD FOR

SELF-PROPELLED ELEVATING WORK PLATFORMS, (CCR 21:3430-3573)

also addresses scissor lifts and the care they require. In Texas:

The relevance of an OSHA standard is that it, and the ANSI standards which form the basis for most OSHA standards, are the cumulative wisdom of the industry on what is safe and what is unsafe. While OSHA was written to protect employees, an unsafe practice for an employee applies equally well to a customer who legitimately finds himself in the same geographic space as the employee. Safety principles don't change depending on whether the victim is an employee, a customer, or a passerby. Therefore it has relevance to the standard of care. It doesn't establish negligence per se, and it does not create a separate cause of action. Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir.1981); Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir.1975). But it may be relevant evidence. …. All of appellants' authorities deal with causes of action brought for violations of those OSHA regulations. In the case at bar, no such

67

recovery was sought by appellee. Rather, the evidence was introduced for the purpose of establishing a standard of conduct to serve as a basis for a negligence cause of action ... the testimony concerning the OSHA regulations only provided statutory reinforcement of the obvious common-law standard.

Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San Antonio

1995).

ANSI A92.6 part 6.3.1 requires the owner to provide the

“operating manual” with each “rental” delivery. (CCR 21:3454).

(emphasis added). The manual begins by reminding us that the

manual itself is a very important "tool" and "keep it with the

machine at all times". JLG OWNER'S MANUAL "FOREWORD.”

(CCR 23:3766) (emphasis added). Nothing more need be said. There

is a duty.

2. Breach of duty

Here, there was no owner’s manual on board the lift.

(CCR 2:162). Rollins swore that MFP (A-1) “did not offer us

training” or “familiarize us with the lift.” (CCR 25:4133)

(emphasis added). The MPF [A-1] delivery crew did not bother to

come in and train Rollins, even though he inquired. They told him

that Texas College already “knew how to use the lift.” Id. (CCR

25:4143). Rollins stated that “A-1 did not offer us training nor did it

68

familiarize us with the lift. The person from A·1 just came and

delivered the machine and left.” Id. Of course the “machine” had no

manual. The duty was breached.

3. Proximate Cause

Rollins “hadn’t been trained” and “didn’t know how to operate

it.) (CCR 25:4134) Mr. Harris, agreed that “untrained employees

shouldn’t be on scissor lifts.” (CCR 7:863). When asked about what

training could have made a difference, Mr. Rollins testified that he

“would have been trained to know how to use it and to get on and off

the proper way…” (CCR 4:316-317).

Most importantly, section 2.1 of the manual reads:

The aerial platform is a personnel handling device; so it is necessary that it be operated and maintained only by trained personnel.

Persons under the influence of drugs or alcohol or who are subject to seizures, dizziness or loss of physical control must not operate this machine.

JLG OWNER'S MANUAL at 2-1 (CR 23:3341) (uncorrected record). Mr.

Rollins indicated that “If Mr. Brackens had looked at the owner’s

manual and informed me that a person with blackouts shouldn’t be

on a lift, I would not have gotten on.” (CCR 25:4135). This is

certainly more than a scintilla of evidence on proximate cause.

69

ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN

1. Owner’s Manual

The objections to the admission of the owner’s manual is

ludicrous. First and foremost, it is part of the equipment that they

admittedly rented. Second, a copy (as asserted by MPF) was already

in their possession. It was produced at Mike Frazier’s Deposition and

properly authenticated:

(Plaintiff's Exhibit 4 marked.) MR. SIGMON: Let me hand you what' a being marked as Plaintiff's 4. THE WITNESS: I'm sorry. Closing these so I have some room.

Okay, sir. Q. (BY MR. SIGMON) Have you ever seen this document before? A. sure. Q. Okay. What is this? A. This is the operation and safety manual that's inside the scissor lift. Q. Okay. So this is an operation and safety manual from JLG, correct? A. Yes. Q. JLG is the manufacturer of the model 1930es right? A. Yes. Q, Which is the same model that you rented to Texas College that is involved in this lawsuit, right? A. Yes. Q, Now, on the front page down in the left-hand portion of the page, you see four letters? You see those four letters? A. The AN -- the ANI -- ANSI? Q. Yes, A. Yes. Q, Do you see that? And you've already identified what ANSI stands for, right?

70

A. Yes. Q. And what is it again? A. American National Safety Institute. Q. So you'd agree with me that the American National Safety Institute has put its logo on the front of this owner's manual, right? MR. GEDDIE: Objection, form. A. It's yes, it's on there.

(CCR 20:3318-3319). As one can see, the objection that “plaintiffs

have failed to establish its authenticity or relevance, or lay any proper

predicate for the admissibility of same, either through a qualified

witness or otherwise,” as set forth in MPF’s filing (CCR 22:3720) is

baseless.

Moreover, one can look at the objections filed by MPF

(CCR 22:3718-3725) and discern that they are (in large part) stock

objections, edited and filed without any supporting evidence, and in

many cases lacking detail. MPF objected to the manual on the basis

that it was not produced timely in violation of Texas Rule of Civil

Procedure 193.6(a). (CCR 22:3719-3720). But the objection is a

“stock objection,” taken off the shelf and pressed without any

supporting evidence or explanation. Bare stock objections filed in

writing - with no oral hearing, no evidence, or explanation - should

71

be given short shrift by this Court. As shown in the argument above,

the manual is probative. It was authenticated. It is admissible.

2. Rollins Affidavit

MPF objected to the Rollins affidavit on the grounds that it was

a sham and should “be stricken in its entirety. (CCR 22:3720).

However the trial court did not exclude the entire affidavit, but rather

painstakingly edited it in response to Texas College’s objections.

MPF alternatively asked the court to, at a minimum, exclude

“the statements that directly contradict” his testimony. Id. Because

MPF sought an alternative form of relief, the objection is multifarious.

Compounding the confusion, the order is vague. It is simply a check

line with a check mark in it, placed in the “sustained” column. See

FEB 9 ORDER ON MPF EVIDENCE OBJECTIONS p. 2 (CCR 24:3937) (also

in appendix). There is no way for this Court to discern which one of

the alternative forms of relief was granted by looking solely at the

order. However, because the trial court did edit the affidavit to

exclude the testimony referenced in the alternative plea (CCR

24:3930-3931) (Texas College objection 13 sustained), one can

discern that the trial court did not strike the affidavit entirely, but

72

granted the lesser relief. Thus, this Court should consider the entire

affidavit (subject to Texas College objection 13) as to MPF.

3. Thorpe Affidavit

Appellees filed a joint motion to strike the affidavit of appellants’

aerial lift safety expert, Burt Thorpe. See THORPE AFFIDAVIT (CR

23:3402-3409) (original record) (also in appendix). Tellingly, the

motion to strike the affidavit did not emphasize unfair surprise or

prejudice. That is because there was none.

The issues presented in the Motion were: whether Plaintiffs

timely disclosed Burt Thorpe; whether the disclosure was sufficient;

and whether Plaintiffs' supplemental designations passed muster of

the discovery rules and in no way constitute unfair surprise,

prejudice or trial by ambush. See Tex. R. Civ. P. 193.6(b).

It was undisputed that the trial court's scheduling order

required Plaintiffs' to designate all experts by October 16, 2014.

Plaintiffs met the deadline with their October 13, 2014 Fourth

Supplemental Disclosure adding Burt Thorpe as a safety expert.

(CCR 6:710-718) Appellees argued that the supplemental October 13

disclosure was inadequate and therefore untimely per Rule 194.2(f).

73

Appellees cited Cunningham v. Columbia/St. David's Healthcare

System, L.P., 185S.W.3d 7 (Tex.App.-Austin 2005) for support. In

Cunningham, the plaintiff was required to designate all experts by

June 29, 2004. Id. at 11. Plaintiff responded to a December 2003

request for disclosure that she had not yet determined "any testifying

expert witnesses" and would supplement. Id. The June disclosure

deadline passed without plaintiff supplementing her response (i.e.

she provided no information about her expert). Id. On September 7,

2004 (i.e. 90 days later) plaintiff attached her expert's affidavit for the

first time, attempting to rely upon it as proof that her claims should

survive summary judgment. Id. at 11. The appeals court affirmed

defendant's motion to strike on the grounds that plaintiff had herself

conceded the designation was untimely and that she failed to satisfy

her burden of showing either good cause or a lack of unfair surprise

or prejudice. Id. at 13.

The facts here are distinguishable: at the time Rollins disclosed

Burt Thorpe in October, he provided to appellees all of the

requirements of 194.2(f) including: his name, address and telephone

number; the subject matter on which he was to testify; the general

substance of his mental impressions and opinions; and his current

74

resume. See PLAINTIFFS' FOURTH SUPPLEMENTAL DISCLOSURE at 6-7

(CCR 6:710-718). At the time of the disclosure, Plaintiffs expert had

not been provided any "documents, tangible things, reports, models

or data compilations" per 194.2(f)(A). In fact, he had only been

retained recently to testify about issues pertaining to safety and the

lack thereof - not on medical or damages issues. The difference

between the substance of Plaintiffs' disclosure of Burt Thorpe in this

matter, (timely per the scheduling order) and the complete lack of

response by the plaintiff in Cunningham is clear. The court in

Cunningham was absolutely correct in its judgment that the plaintiff

had not met her burden. There was no evidence of her expert's utter

existence prior to her summary judgment response, which is the

epitome of "unfair surprise"- particularly in the context of a

dispositive proceeding. Id. at 14. Here, Rollins met the initial

requirement of a timely disclosure per the rules and the Court's

Scheduling Order when he designated Mr. Thorpe on October 13.

Defendants received fair notice of Mr. Thorpe's participation as

an expert; and were given the subject matter of his testimony, thus

refuting any claim of unfair surprise. See Gutierrez v. Gutierrez, 86

S.W.3d 729 (Tex.App. -El Paso 2002).

75

4. The ANSI Standard and "Statement of Best Practices”

During the course of the proceedings, appellants introduced the

American National Standards Institute ("ANSI") safety standard

A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING

WORK PLATFORMS, (CCR 21:3430-3573) and ANSI’s STATEMENT OF BEST

PRACTICES OF GENERAL TRAINING AND FAMILIARIZATION FOR AERIAL WORK

PLATFORM EQUIPMENT, February 2010 (CCR 20:3215-3234).

MPF objected to these documents claiming that they were not

authenticated, not timely disclosed, and irrelevant. Ironically, with

respect to ANSI 92.6, MPF itself produced the same text on 6/26/14

in response to Plaintiffs’ written request for production. (SR 13).

Both standards are discussed in the Thorpe affidavit. They are

referenced in response to requests for disclosure regarding Mr.

Thorpe’s testimony. They are relevant. Although the trial court

sustained the objections, it should not have. Appellant submitted

the matters requesting “judicial notice of the Code of Federal

Regulations, OSHA and ANSI provisions cited” therein, and gave

“notice of their intent to rely” on them. (CCR 20:3264). See,

Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) wherein

the Texas Supreme Court held that: (1) a court may take judicial

76

notice of OSHA regulations without such regulations being included

in the pleadings, and (2) that the trial court committed reversible

error by not considering the OSHA regulation. See also Tex. R. Evid.

201. It bears repeating that ANSI standards “form the basis for most

OSHA standards.” Seale, 904 S.W.2d at 720. Since OSHA adopts

ANSI standards as its standards, the court was duty bound under

Rule 201 to take notice.

THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE

Appellants incorporate by reference the same argument made

as to Texas College.

CONCLUSION AND PRAYER

Wherefore, Appellants pray that this Court: (1) reverse the trial

court’s order granting summary judgment in favor of Texas College;

(2) reverse the trial court’s order granting summary judgment in favor

of MPF Investments, LLC; and (3) remand the case for further

proceedings. Also in the interest of justice and clarity: (4) reverse the

orders (a) denying the motion to reopen the evidence, (b) striking the

expert designation of Burt Thorpe, and to the extent argued in this

77

brief, granting (c) Texas College’s evidentiary objections and (d) MPF’s

evidentiary objections.

Respectfully submitted,

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon State Bar No. 24010397 LAW OFFICES OF ERNESTO D. SIGMON WALKER SIGMON LAW 416 West Saulnier Street Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

78

CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using

Microsoft Word 2013 and contains 14,980 words, as determined by

the computer software’s word-count function, excluding the sections

of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon

State Bar No. 24010397

LAW OFFICES OF ERNESTO D. SIGMON

WALKER SIGMON LAW

416 West Saulnier Street

Houston, Texas 77019

214/395-1546 (Telephone)

713/485-6056 (Facsimile)

esigmon@esigmon.com

ATTORNEY FOR APPELLANTS,

GARRY L. ROLLINS AND CARLA D. ROLLINS

79

CERTIFICATE OF SERVICE I certify that on October 15, 2015 I served a copy of Appellants’

Brief and Appendix on the parties listed below by electronic service

and that he electronic transmission was reported as complete. My e-

mail address is esigmon@esigmon.com.

/s/ Ernesto D. Sigmon

Ernesto D. Sigmon State Bar No. 24010397 SIGMON LAW, PLLC 2929 Allen Parkway, Suite 200 Houston, Texas 77019 214/395-1546 (Telephone) 713/485-6056 (Facsimile) esigmon@esigmon.com

ATTORNEY FOR APPELLANTS, GARRY L. ROLLINS AND CARLA D. ROLLINS

Greg Smith Texas Bar No. 18600600 Nolan D. Smith Texas Bar No. 24075632 RAMEY & FLOCK, P.C. 100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: 903-597-3301 Facsimile: 903-597-2413

Mr. Trey Yarbrough YARBROUGH WILCOX GUNTER, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702

80

Fax: 903.595.0191

Levon G. Hovnatanian Texas Bar No. 10059825 hovnatanian@mdjwlaw.com lonergan@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Todd M. Lonergan Texas Bar No. 12513700 lonergan@mdjwlaw.com 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

Ryan K. Geddie Texas Bar No. 24055541 geddie@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P. Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile

No. 12-15-00121-CV

__________________________________________________________________

IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS TYLER, TEXAS

__________________________________________________________________

GARRY L. ROLLINS AND CARLA D. ROLLINS, Appellants

V.

TEXAS COLLEGE AND MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"

Appellees

__________________________________________________________________

APPELLANTS’ APPENDIX

__________________________________________________________________

Trial Court Orders

February 19 Order Denying Motion to Strike Doctor Reports……….. 3 February 19 Order Striking Thorpe Testimony…………………………. 4 February 19 Order on MPF Evidence Objections……………………….. 5 February 19 Order on TC Evidence Objections…………………………. 6 February 19 Order Granting MPF Summary Judgment…………….... 7 February 10 Order Granting TC Summary Judgment……………..…. 8 Order Clarifying Objections………………………………………………….. 9 Order Denying Reconsideration of TC Summary Judgment…………. 12 Order Denying Reconsideration of MPG Summary Judgement…….. 13 Order Denying Motion to Reopen Evidence……………………………… 14

Pleadings

6th Amended Petition………………………………………………………….. 15 7th Amended Petition………………………………………………………….. 24 8th Amended Petition………………………………………………………….. 34

(contents continued on next page)

Key Documents

Full Rollins Affidavit…………………………………………………………… 42 Redacted Rollins Affidavit……………………………………………………. 47 Barnett Letter…………………………………………………………………… 52 Barnett Affidavit……………………………………………………………….. 54 Thorpe Affidavit………………………………………………………………… 56

Objections to Evidence

Texas College’s Objections to Evidence…………………………………… 64 MPF’s Objections to Evidence………………………………………………. 83

Cases

Austin v. Kroger………………………………………………………………… 96 Kroger v. Elwood……………………………………………………………….117 Kroger v. Milanes………………………………………………………………120 Lawrence v Coastal Marine Service………………………………………..140

CAUSE N0.13-33153-A

GARRY L. ROLLINS and CARLA D. ROLLINS

Plalntlffa,

Vs. SMITH COUNTY, TEXAS

TEXAS COLLEGE and MPF INVESTMENTS, LLC D/B/A "A·1 RENT ALL"

Defendants, 7th JUDICIAL DISTRICT

ORDER ON DEFENDANTS MPF INVESTMENTS, LLC D/B/A A·1 RENT ALL AND TEXAS COLLEGE'S MOTION TO STRIKE EXPERT DESIGNATIONS OF GILBl!!RT MARTINEZ, JOE 0. GONZALES, AND THOMAS M. RONEY

THE COURT has considered Defendant's Motion to Strike the Expert Designations of

Giibert Martinez, Joe G. Gonzalez and Thomas M. the applicable law, and the 'lM K:-tPl:t,, response from Plalntlf'fs and supporting exhibits! Having ddne so, the Court Is of the

opinion that the Defendant Is not entitled to the relief sought In its Motion. It Is therefore,

ORDERED, ADJUDGED, and DECREED that the motion Is DENIED.

It Is so ORDERED.

ORDER Solo P1g1

APPENDIX 3 Page 3924

CAUSE NO. 13-3353·A

GARRY L. ROLLINS AND § CARLA D. ROLLINS, § Plaintiffs, §

I

v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A 14A·l RENT ALL", § Defendant•. § 7TH DISTRICT COURT

ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A·l RENT ALL'S MQTION TO STRIKE EXPERT DESIGNATION OF BURT IHORfE

The Court has considered Defendant MPF Investments, LLC dlb/a A·l Rent All's

Motion to Strike Expert Designation of Burt Thorpe, Plaintiffs' Response, the pleadings on file,

any additional briefing accepted by the Court, and the applicable law. Having done so, the Court

is of the opinion that Defendant, MPF Investments, LLC d/b/a A· l Rent All, is entitled to the

relief requested. It is therefore,

ORDERED, ADJUDGED and DECREED that Burt Thorpe shall not testify at trial in this

matter and no opinion testimony from Burt Thorpe will be admined into evidence in this matter

for any purpose.

It is so ORDERED.

Sii!led this of ..........

ORDER GMND'.'\G DEFENDANT MPf !NYESIMENJ. LLC'S MOTION IO STRJKE EXfERI DESIGNATION OF BURI IHOBPt: SOLO PAGE

APPENDIX 4 Page 3923

CAUSE NO. 13-3353-A

GARRY L. ROLLINS AND § CARLA D. ROLLINS, § Plaintiffs, § § v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A "A·l RENT ALL", § Defendantl. § 7TH DISTRICT COURT

ORDER ON MPF INVESTMENTS, LLC D/B/A A·l RENT ALL'S OBJECTIONS TO PLAINWFS' SUMMABY JypGMENT EVIDENCE

The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's

Motion to considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's Objections to

Plaintiffs' Summary Judgment Evidence, Plaintiffs' Response to MPF's Summary Judgment and

any responses and replies thereto, the pleadings on file, any additional briefing accepted by the

Court, and the applicable law. Having done so, the Court makes the following rulings on A-1 's

objections:

Evidence Sustalped Depleci

1. Excerpts from the deposition of Mike Frazier

Question at 59: 10

Questions beginning at 60:21

Questions beginning at 61:4 - 14

Questions beginning at 62:4

6. The JLG Owner'• Manual Model 1930-ES (excerpts).

OBDER ON m>F JNYESW&'IIS. LLC D/BJA A-1 RE..''J 6{,VS OB.JECTIONS IO PLAINmfS' SJJMMABY Jtl>GMENI EVIDENCE PAGEl

APPENDIX 5 Page 3936 •

GARRY L. ROLLINS and § CARLA D. ROLLINS § Plain tlft'1 § § vs. § SMITH COUNTY, TEXAS § TEXAS COLLEGE and § CHRISTIAN METHODIST I EPISCOPAL CHURCH I

I

Defendants. § 7th JUDICIAL DISTRICT

ORPER ON DEfENDANI TEXAS COLLEGE'S OBJECTIONS/MOTION TO STRIKE EVIDENCE AND BEFEBENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE'S MOTION FOR SUMMARY JUDGMENT

ON THIS DAY, the Court considered Texas College's Objections/Motion to Strike Evidence

and References in Plaintiffs' Response to Texas College's Motion for Summary Judgment. After

reviewing the pleadings on file, hearing any arguments of counsel, and the applicable law, the Court

hereby makes the following ruliniS on Texas College's objections:

A. Texas College's objection to Plaintiffs' references to and use of Plaintiffs' Seventh and Eighth Amended Petition as summary-judsment proof are hereby:

Sustained: v Overruled:

---

B. Texas College's objections to the following excerpts from the deposition of Roland Brackens and the references in Plaintiffs' response to such are hereby:

Sustained: ..! Overruled: _ __

Deposition Testimony: 18:4 - 18:2S; 22:1S - 23: 14; 24:8 - 24: 11; 24:23 - 2S:6

ORDER ON DEFE!llDA."'l'T TEXAS COLLEGE'S 0BJECTIONs/MOTION TO STRIKE EVIDENCE A.'iD REFERENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE 1 5 MOTION FOR SUMMARY JlJDGMENT PAGEi OFIO

APPENDIX 6 Page 3925

' ..

....

Dis. .ii,, :·;

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1015 Fte I 9 AH CAUSE NO. 13-33!3-A - · ·. · 0 qI GARRY L. ROLLINS AND s I • § CARLA D. ROLLINS, Plaintiffs, I a, ·..irvt

v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A "A·l RENT ALL", § Defendants. § 7TH DISTRICT COURT

ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A-1 RENT ALL'S IRADITIONAL AND NO-EVJDENCE MOTION FOR SUMMABY JUDGMENT

The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's

Traditional and No-Evidence Motion for Summary Judgment, Plaintiffs' Response, the pleadings

on file, the summary judgment evidence, any additional briefing accepted by the Court, and the

applicable law. Having done so, the Court is of the opinion that Defendant, MPF Investments,

LLC d/b/a A-1 Rent All, is entitled to summary judiMent as to all of Plaintiffs' claims. It is

therefore,

ORDERED, ADJUDGED and DECREED that Plaintiffs' claims and causes of action

against Defendant MPF Investments, LLC d/b/a A-1 Rent All are dismissed with prejudice, and

said Defendant's taxable costs are assessed against Plaintiffs.

OBQER GBANIING DEFE:SDANT MPF I:SVESIMENI. LLC'S )IOIION FOR SUM)IARY JUDGMENT PAGE I

APPENDIX 7 Page 3938 0 0 . f../: .r.·r)· '!'"" .;:;, ' l.'. ' .

I• "·\ : ,........ )'

• ·''\

CAUSE NO. 13-33!3-A tO/J rre '

GARRY L. ROLLINS and § IN THE I: Alt/(): l/2 CARLA D. ROLLINS § o}' . /)·· -

Plaintiffs § -

§ vs. § SMITH COUNTY, TEXAS § TEXAS COLL.EGE and § CHRISTIAN METHODIST § EPISCOPAL CHURCH § § Defendants. § 7th JUDICIAL DISTRICT

ORQER GBANTING TEXAS COLLEGE'S MOIION FOR SUMMARX JUQGMENT

The Court has considered Defendant, Texas College's, Motion for Swnmary Judgment, Plaintiffs'

Response, the on file, the swnmary judgment evidence, any additional briefing accepted by the

Court, and the applicable law. Having done so, the Court is of the opinion that Defendant, Texas College,

is entitled to sununary judgment as to all of Plaintiffs' claims. It is, therefore,

ORDERED, ADJUDGED, and DECREED that Plaintiffs' claims and causes of action against

Defendant Texas College are dismissed with prejudice, and said Defendant's taxable costs are assessed

against Plaintiffs.

It is so ORDERED.

SIGNED this the of ......

APPENDIX 8 Page 3935

CAUSE NO. 13·33S3-A

GARRY L. ROLLINS AND § CARLA D. ROLLINS, § Plalndffs, § § v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A "A·1 RENT ALL", § Defendant•• § 7TH DISTRICT COURT

AGREED ORDER CLARIFYING EARLIER ORDER ON TEXAS COLLEGE'S OBJECTIONSIMOTION TO STRIKE EVIDENCE AND REFERENCES IN PLAINTIFFS'

RESPONSE TO MOTION FOR SUMMARY JUDGMENT

On this day the Court considered Texas College's unopposed motion for entry of an order

clarifying an earlier February 19, 20lS orderof this Courton Texas College's objections and motion to

strike evidence and references in Plaintiffs' Response to Texas College's Motion for Summary

Judgment. After considering the motion, the Court finds that there is the possibility of someconfusion

8S to the sequence ofrulings in Section D of the prior orderand is ofthe opinion that the motionshould

be granted.

The Court, therefore, enters the following Order clarifying certain rulings in its February 19,

201S Order on Defendant Texas College's Objections/Motion to Strike Evidence and References in

Plaintiffs' Response to Texas College's Motion for Summary Judgment (hereinafter sometimes "Prior

Order"), and specifically, therulings contained in Section 0 of the PriorOrder:

1. In Section D, at page 4, the Court overruled DefendantTexas College's objection to the

particular excerpt from Mr. Rollins' affidavit which reads "(at least I SO Ibs.)," finding

that the quoted language is 8 personal estimate only.

2. In Section D, at page S, with respect to the excerpt from Mr. Rollins' affidavit which

ORDER ON DEFENDANT TEXAS COLLEGE'S MonON FOR ENTRV OF ORDER CLARJFVING EARLIER ORDER ON OBJErnoNSIMonON TO STRIKE. EVID1SCE A;liD REF'1!.RENCES IS PLAINTIFFS' RESPOSSETO TEXAS COLLEGE'S MOTlO!\l FOR St.:MMARY JUDGMENT PAGE 1 Of 3

APPENDIX 9 PIIOA 4177 reads, "We were not trained or instructed on proper lifting techniques or given any

direction for performing a safe lift of the size," the Court sustained Texas College's

objection as to "We," but otherwise overruled the objection.

3. In Section D, at page 6, the Court sustained Texas College's objection to that portion of

an excerpt from Mr. Rollins' affidavit which reads, "Under Mr. Brackens authority at

Texas College there was never an emphasis on safety or training for any of the work we

were assigned. While under his supervision and leadership at Texas College, none of the

employees were ever sent to any kind of safety training sessions or OSHA workshops,"

With respect to the sentence in the same excerpt which reads, "This kind of thing made

me and other employees question the school's attitude toward our safety," the Court

sustained Texas College's objection as to the words "and other employees" but

overruled the objection as to the remainder of that sentence. The Court redacted the

portions to which the objections were sustained.

4. In Section 0, at page 7, with respect to the excerpt from Mr. Rollins' affidavit which

reads, "Of course, I later ended up having to have major surgery because of my injury,"

the Court sustained Texas College's objection to the extent of the words "because of my

injury," but overruled the objection to the remainder of the excerpt.

5. Other than the objections, or parts thereof, which were overruled by the Court as

identified in numbers 1 through 4 above, the Court sustained in their entirety Texas

College's objections to the remaining excerpts from Plaintiffs' summary-judgment

evidence and response contained in Section D of the Court's order dated February 19,

2015.

It is further Ordered that Sections A, B, C and E of the Prior Order do not require any

ORDER ON DEFENDANT TEXAS COLLEGE'S MOTION FOR ENTRY OF ORDER CLARlFYlSG EARLIER ORDER ON OBJECfJONSlMOTION TO STRIKE EVIDENCE AND REFERENCES IN PLAINTIFFS' RES POSSE TO TEXAS COLLEGE'S MOTION FOR SUMMARY Jl1>GMENT PAGE 2 OF 3

APPENDIX 10 Pace 4178 clarification and are not addressed in this Order.

This Orderin no way changes the rulings memorialized in the Court's February 19,2015 Order

but is entered for purposes of clarification only.

IT IS SO ORDERED.

SIGNED this Q day of............... ....

Approved:

Is!Emesto Sigmon Emesto Sigmon BarNo. 24010397 Attorney for Plaintiffs

lsi Trey Yqrbrouih Trey Yarbrough BarNo. 22133.500 Attorney for Defendant TexasCollege

ORDER ON TEXAS COLLEGE'S MOTION rOR ENTRY OF ORDER CLARIFYING EARLIER ORDER ON OBJECfIONst'lOTION TO STRIKE AND REFERENCES IN PLAINTIFFS' TO TEXAS COLLEGE'S MOTION FOR St:MMARY JUDGMENT PAGE J OF J

APPENDIX 11 Pan.. .4170

APPENDIX 12

CAUSE NO. 13-33S3-A lOIS lOAM B: 3S GARRY L. ROLLINS AND § IN THE DISTRlc; I _ , CARLA D. ROLLINS, § '. \ , J

Plaintiffs, § § v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A "A-l RENT ALL", § Defendant•. § 7TH DISTRICT COURT

ORDER DENYING PLAINTIFFS' MOTION TO RECONSIDER THE COURT'S RULING ON DEFENDANT'S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

The Court has considered Plaintiffs' Motion to Reconsider the Court's Ruling on

Defendant's Traditional and No-Evidence Motion for Summary 1udgment, Defendant MPF

Investments, LLC's Response, and any related briefing. Having done so, the Court finds that the

motion should be in all things denied.

It is, therefore, Ordered that Plaintiffs' Motion to Reconsider the Court's Ruling on

Defendant's Traditional and Motion for Summary Judgment is denied.

, Signed this J...Q:... day of is. /

OBDER DENYING PLAcsTIm' MOTION TO RECONSIDER THE COURT'S RULING ON DEFENDANT'S TRADITIONAL AND NO.EyIDENCE MOTION FOR SUMMAR)' SOLO PAGE APPENDIX 13 Page 4180

APPENDIX 14

Electronically Filed 11/10/2014 7 0717 PM Lois Rogers, Smith County District Clerk Reviewed By Lana Fields

CAUSE N0.13-3363-A

GARRY L. ROLLINS and IN THE DISTRICT COURT CARLA D. ROLLINS

Plaintiffs,

Vs. SMITH COUNTY, TEXAS

TEXAS COLLEGE; CHRISTIAN METHODIST EPISCOPAL CHURCH and MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL"

Defendants, 7th JUDICIAL DISTRICT

PLAINTIFFS' SIXTH AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),

complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")

and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file

this Sixth Amended Original Petition:

DISCOVERY CONTROL PLAN LEVEL

1. Discovery is being conducted under Level 2 of the Discovery Control Plan

pursuant to Texas Rule of Civil Procedure 190.3.

PARTIES AND SERVICE

2. Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas

County, Texas.

PLAINTIFFS' SIXTH AMENDED PETITION Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 15 Page 83 3. Defendant TC is a Texas Nonprofit corporation with its principal office in Smith

County, Texas and has been served with process through its registered agent Dwight J.

Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered

in this matter through its attorney of record.

4. Defendant CME is a foreign nonprofit corporation organized under the laws of the

state of Tennessee and was served with process at its principal place of business at

4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181. CME has

answered in this matter through its attorney of record.

5. Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ') is a Texas limited

liability company with its principal office at 2505 S Southeast Loop 323 Tyler, Texas

75701. A-1 has answered in this matter through its attorney of record.

CLAIM FOR RELIEF

6. Plaintiffs seek monetary relief over $1,000,000. Tex.R.Civ.P. 47(c)(5).

VENUE

7. Smith County, Texas is a county of proper venue for this suit in accordance with

Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a

substantial part of the events or omissions giving rise to this cause of action occurred in

Smith County, Texas.

AGENCY

8. At all times material hereto, Defendants acted by and through actual, apparent,

ostensible, or by estoppel agents, acting within the course and scope of such agency.

FACTS

9. Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by

Texas College in the capacity of maintenance technician. Texas College itself operates

PLAINTIFFS' SIXTH AMENDED PETITION 2 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 16 Page 84 under the "supervision, care and ownership" of CME and has rented heavy equipment

"aerial work platforms" from A-1 on various occasions.

10. Rollins' formal work title was "Maintenance Technician". His office was in the TC

Physical Plant (the "Plant"). Rollins reported to Roland Brackens, the Plant

Superintendent, and to James Harris, Vice President of Business and Finance at TC.

Rollins also supervised a three to four person maintenance crew. Rollins' overall

responsibility at TC included general maintenance, light construction, driving detail and

essentially anything else the school required. He was hired to work at TC in 2008.

11. During September 2013, Rollins was asked by his supervisor to help move some

marble counter tops that were to be installed in the school's Science building. The

slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.

Rollins and one other worker to perform the task with no other assistance-man nor

machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and

suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins

sought emergency medical care because of the incident and was advised not to drive.

Rollins informed agents and employees of TC of his restriction and was subsequently

removed from a TC driving task that he had been performing on Tuesdays and

Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins

from the task.

12. A few weeks later, sometime during October 2013, the gymnasium ceiling at TC

needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for

Plaintiff Rollins and others to use while doing the repairs.

13. The Lift is capable of reaching upwards of approximately 20 feet from the ground

and is often accompanied by a safety harness to prevent worker injury. TC did not rent

PLAINTIFFS' SIXTH AMENDED PETITION 3 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 17 Page 85 or purchase a harness for use with the Lift, nor did it purchase or rent any other

personal protective equipment needed to ensure worker safety. Upon information and

belief, A-1 did not offer or suggest that TC purchase or rent personal protective

equipment for use with the Lift nor did it adequately confirm whether TC or its agents

were "qualified personnel" with the training and experience needed to safely operate the

Lift. Upon information and belief, A-1 did not familiarize Rollins with the Lift and its

operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens

did not check or confirm whether A-1 Rent All included an owner/operator manual with

the Lift as required by its manufacturer, JLG.

14. On or around October 22, 2013 TC directed Rollins and others to use the Lift "as

is" to make the repairs-minus training or supervision. After completing the work,

Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported

the incident to the TC human resources department as required. At the time, Rollins

assumed his fall had been relatively inconsequential as he was able to walk away

unassisted.

15. Three days later, on or around October 25, 2013, Rollins lost sensation in his

legs and toes and was subsequently admitted to Zale Lipshy University Hospital in

Dallas Texas where he underwent invasive neck surgery.

16. Rollins is now convalescing at home, unable to walk unassisted and requires

intensive at home physical therapy and care three times a week. He is no longer able

to perform many of the household tasks he once did to assist his wife Carla with the

maintenance and care of their home.

17. On or around December 6, 2013 Rollins received correspondence from TC

advising him that he would be terminated if he does not return to work within 3 months.

PLAINTIFFS' SIXTH AMENDED PETITION 4 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 18 Page 86

CAUSES OF ACTION

TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE

18. Texas College was Rollins' employer at the time of his avoidable injury and owed

him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's

Compensation and does not carry any sort of insurance for work related injury.

Defendant Texas College breached its duty of care to Rollins. Its breach includes and

is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)

furnish reasonably safe machinery or reasonably safe personal protective equipment for

use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate

help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins

while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff

Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions

by TC constitute negligence and gross negligence.

CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER EGO, NEGLIGENCE AND GROSS NEGLIGENCE

19. During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented

to the public through documents on file with the Texas Secretary of State that TC

operates under the "supervision, care and ownership" of CME. CME has and continues

to represent to the general public that TC is one of its "affiliate" educational institutions,

of which there are several. CME makes extensive reference to TC throughout its

internal documentation and by-laws, and the role it plays in establishing TC policies and

procedures. CME also has a significant "financial relationship" with TC that has been

reported to the IRS.

PLAINTIFFS' SIXTH AMENDED PETITION 5 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 19 Page 87 20. TC acted as CM E's agent at all times relevant to the facts made the basis of this

lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein

and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.

21. Plaintiffs further allege that CME exercises a measure of control over TC so as to

qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.

22. CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in

performing services, whether gratuitously or for consideration that CME should

recognize as necessary for the protection of other persons or things.

23. CME breached its duties by failing to exercise reasonable care to secure Mr.

Rollins' safety while employed at TC and in doing so significantly increased his risk of

harm. This breach makes CME liable to Plaintiffs vicariously and directly. The

foregoing acts and omissions by CME constitute negligence and gross negligence.

MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT ENTRUSTMENT AND GROSS NEGLIGENCE

24. MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others as well as a duty to take affirmative action to avoid increasing the

danger from a condition created by its conduct. Defendant MPF breached its duty of

care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that

the Lift was being rented and used by competent and authorized persons; and to act

reasonably and prudently in all manners regarding its rental transaction with TC and the

steps it should have taken to prevent the readily foreseeable harm that the Lift could

cause subsequent users who were either unfit, untrained or incompetent to operate it.

PLAINTIFFS' SIXTH AMENDED PETITION 6 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 20 Page 88

The foregoing acts and omissions by MPF constitute negligence, negligent entrustment

and gross negligence.

DAMAGES TO PLAINTIFFS

25. Defendants' combined negligence has proximately caused damage to

Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which

Plaintiffs pray judgment.

26. As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum

jurisdictional limits of this Court. Such damages include, but are not limited to: physical

pain (past and future), physical impairment (past and future), medical expenses (past

and future), loss of earning capacity (past and future), disfigurement (present and

future), loss of income (past and future), emotional distress (past and future), and

mental anguish (past and future).

27. As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount

in excess of the minimum jurisdictional limits of this Court. Carla's special damages

include, but are not limited to: loss of consortium (past and future) and loss of

household services (past and future).

EXEMPLARY DAMAGES

28. Plaintiffs further allege that Defendants' acts and omissions, whether taken

singularly or in combination, were aggravated by the kind of malice and reckless

disregard for which the law allows the imposition of exemplary damages. TC's conduct

amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts

PLAINTIFFS' SIXTH AMENDED PETITION 7 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 21 Page 89 to gross negligence as by the laws of Texas. CME is either directly liable for exemplary

damages because of its conduct or liable because of its agent's acts. MPF's conduct

amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,

Plaintiffs seek such exemplary damages against each defendant named herein in an

amount that exceeds the minimum jurisdictional threshold of the Court.

JURY DEMAND

29. Plaintiffs request that a jury be convened to try the fact issues in this action. A

jury fee has been tendered and accepted by the Smith County District Clerk.

PRAYER

VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded

damages which are set forth above and which are in the sum in excess of the minimum

jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate

permitted by law, post-judgment interest from the date of judgment until paid at the

highest rate permitted by law, attorney fees, and for such other and further relief, both at

law or in equity, to which Plaintiffs may be justly entitled.

Respectfully submitted, THE LAW OFFICES OF ERNESTO D. SIGMON

Isl Ernesto D. Sigmon ERNESTO D. SIGMON State Bar No. 24010397 5872 Old Jacksonville Highway Suite 624 Tyler, Texas 75703 2141395-1546 (Telephone) 9031944-7496 (Facsimile)

ATTORNEY FOR PLAINTIFFS

PLAINTIFFS' SIXTH AMENDED PETITION 8 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 22 Page 90

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document has been served on all counsel of record on the 11th day of November 2014 as follows:

VIA EMAIL Mr. Trey Yarbrough Yarbrough Wilcox, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 FAX: 903.595.0191

ATTORNEYS FOR DEFENDANT TEXAS COLLEGE

VIA EMAIL Wesson H. Tribble Dan McManus Tribble, Ross & Wagner 3355 West Alabama Street, Suite 1200 Houston, Texas 77098

ATTORNEYS FOR DEFENDANT CHRISTIAN METHODIST EPISCOPAL CHURCH

VIA EMAIL Ryan K. Geddie Martin, Disiere, Jefferson & Wisdom, LLP Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas I 75248 Phone: (214) 420-5500 I Fax: (214) 420-5501

ATTORNEYS FOR DEFENDANT MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"

Isl Ernesto D. Sigmon Ernesto D. Sigmon

PLAINTIFFS' SIXTH AMENDED PETITION 9 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx APPENDIX 23 Page 91

Electronically Filed 1212/2014 4 08 24 PM Lois Rogers, Smith County District Clerk Reviewed By Lana Fields

CAUSE N0.13-3363-A

GARRY L. ROLLINS and IN THE DISTRICT COURT CARLA D. ROLLINS

Plaintiffs,

Vs. SMITH COUNTY, TEXAS

TEXAS COLLEGE; CHRISTIAN METHODIST EPISCOPAL CHURCH and MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL"

Defendants, 7th JUDICIAL DISTRICT

PLAINTIFFS' SEVENTH AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),

complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")

and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file

this Seventh Amended Original Petition:

DISCOVERY CONTROL PLAN LEVEL

1. Discovery is being conducted under Level 2 of the Discovery Control Plan

pursuant to Texas Rule of Civil Procedure 190.3.

PARTIES AND SERVICE

2. Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas

County, Texas.

PLAINTIFFS' SEVENTH AMENDED PETITION Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 24 Page 92 3. Defendant TC is a Texas Nonprofit corporation with its principal office in Smith

County, Texas and has been served with process through its registered agent Dwight J.

Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered

in this matter through its attorney of record.

4. Defendant CME is a foreign nonprofit corporation organized under the laws of the

state of Tennessee and was served with process at its principal place of business at

4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181. CME has

answered in this matter through its attorney of record.

5. Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas

limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,

Texas 75701. A-1 has answered in this matter through its attorney of record.

CLAIM FOR RELIEF

6. Plaintiffs seek monetary relief in an amount over $1,000,000 but not to exceed

$25,000,000. Plaintiffs also demand judgment for all other relief to which they may be

entitled as a result of the harms and losses made the basis of this lawsuit. See

Tex.R.Civ.P. 47(d).

VENUE

7. Smith County, Texas is a county of proper venue for this suit in accordance with

Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a

substantial part of the events or omissions giving rise to this cause of action occurred in

Smith County, Texas.

AGENCY

8. At all times material hereto, Defendants acted by and through actual, apparent,

ostensible, or by estoppel agents, acting within the course and scope of such agency.

PLAINTIFFS' SEVENTH AMENDED PETITION 2 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 25 Page 93

FACTS

9. Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by

Texas College in the capacity of maintenance technician. Texas College itself operates

under the "supervision, care and ownership" of CME and has rented heavy equipment

"aerial work platforms" from A-1 on various occasions.

10. Rollins' formal work title was "Maintenance Technician". His office was in the TC

Physical Plant (the "Plant"). Rollins reported to Roland Brackens, the Plant

Superintendent, and to James Harris, Vice President of Business and Finance at TC.

Rollins also supervised a three to four person maintenance crew. Rollins' overall

responsibility at TC included general maintenance, light construction, driving detail and

essentially anything else the school required. He was hired to work at TC in 2008.

11. During September 2013, Rollins was asked by his supervisor to help move some

marble counter tops that were to be installed in the school's Science building. The

slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.

Rollins and one other worker to perform the task with no other assistance-man nor

machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and

suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins

sought emergency medical care because of the incident and was advised not to drive.

Rollins informed agents and employees of TC of his restriction and was subsequently

removed from a TC driving task that he had been performing on Tuesdays and

Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins

from the task.

PLAINTIFFS' SEVENTH AMENDED PETITION 3 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 26 Page 94 12. A few weeks later, sometime during October 2013, the gymnasium ceiling at TC

needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for

Plaintiff Rollins and others to use while doing the repairs.

13. The Lift is capable of reaching upwards of approximately 20 feet from the ground

and is often accompanied by a safety harness to prevent worker injury. TC did not rent

or purchase a harness for use with the Lift, nor did it purchase or rent any other

personal protective equipment needed to ensure worker safety. Upon information and

belief, A-1 did not offer or suggest that TC purchase or rent personal protective

equipment for use with the Lift nor did it adequately confirm whether TC or its agents

were "qualified personnel" with the training and experience needed to safely operate the

Lift. Upon information and belief, A-1 did not familiarize Rollins with the Lift and its

operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens

did not check or confirm whether A-1 Rent All included an owner/operator manual with

the Lift as required by its manufacturer, JLG.

14. On or around October 22, 2013 TC directed Rollins and others to use the Lift "as

is" to make the repairs-minus training or supervision. After completing the work,

Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported

the incident to the TC human resources department as required. At the time, Rollins

assumed his fall had been relatively inconsequential as he was able to walk away

unassisted.

15. Three days later, on or around October 25, 2013, Rollins lost sensation in his

legs and toes and was subsequently admitted to Zale Lipshy University Hospital in

Dallas Texas where he underwent invasive neck surgery.

PLAINTIFFS' SEVENTH AMENDED PETITION 4 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 27 Page 95 16. Rollins is now convalescing at home, unable to walk unassisted and requires

intensive at home physical therapy and care three times a week. He is no longer able

to perform many of the household tasks he once did to assist his wife Carla with the

maintenance and care of their home.

17. On or around December 6, 2013 Rollins received correspondence from TC

advising him that he would be terminated if he does not return to work within 3 months.

CAUSES OF ACTION

TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE

18. Texas College was Rollins' employer at the time of his avoidable injury and owed

him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's

Compensation and does not carry any sort of insurance for work related injury.

Defendant Texas College breached its duty of care to Rollins. Its breach includes and

is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)

furnish reasonably safe machinery or reasonably safe personal protective equipment for

use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate

help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins

while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff

Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions

by TC constitute negligence and gross negligence.

CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER EGO, NEGLIGENCE AND GROSS NEGLIGENCE

19. During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented

to the public through documents on file with the Texas Secretary of State that TC

operates under the "supervision, care and ownership" of CME. CME has and continues

PLAINTIFFS' SEVENTH AMENDED PETITION 5 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 28 Page 96 to represent to the general public that TC is one of its "affiliate" educational institutions,

of which there are several. CME makes extensive reference to TC throughout its

internal documentation and by-laws, and the role it plays in establishing TC policies and

procedures. CME also has a significant "financial relationship" with TC that has been

reported to the IRS.

20. TC acted as CM E's agent at all times relevant to the facts made the basis of this

lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein

and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.

21. Plaintiffs further allege that CME exercises a measure of control over TC so as to

qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.

CME has engaged in financial transactions pledging and leveraging Texas College

assets; and controls the school through an elected body of officials composed

predominately of CME officers and bishops acting on behalf of the CME-retaining for

itself the power to merge, consolidate, convey, or terminate Texas College as it deems

fit. The official bylaws of Texas College mandate that upon dissolution, the school's

assets will revert back to CME. The elected body of officials (referenced supra) acts

through various "committees", one of which established policies and procedures at the

Texas College physical plant where Garry Rollins was employed for several years.

These policies and procedures impacted employee training and employee safety at

Texas College.

22. CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in

performing services, whether gratuitously or for consideration that CME should

recognize as necessary for the protection of other persons or things.

PLAINTIFFS' SEVENTH AMENDED PETITION 6 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 29 Page 97 23. CME breached its duties by failing to exercise reasonable care to secure Mr.

Rollins' safety while employed at TC and in doing so significantly increased his risk of

harm. This breach makes CME liable to Plaintiffs vicariously and directly. The

foregoing acts and omissions by CME constitute negligence and gross negligence.

MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT ENTRUSTMENT AND GROSS NEGLIGENCE

24. MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others as well as a duty to take affirmative action to avoid increasing the

danger from a condition created by its conduct. Defendant MPF breached its duty of

care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that

the Lift was being rented and used by competent and authorized persons; and to act

reasonably and prudently in all manners regarding its rental transaction with TC and the

steps it should have taken to prevent the readily foreseeable harm that the Lift could

cause subsequent users who were either unfit, untrained or incompetent to operate it.

The foregoing acts and omissions by MPF constitute negligence, negligent entrustment

and gross negligence.

DAMAGES TO PLAINTIFFS

25. Defendants' combined negligence has proximately caused damage to

Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which

Plaintiffs pray judgment.

26. As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum

jurisdictional limits of this Court. Such damages include, but are not limited to: physical

pain (past and future), physical impairment (past and future), medical expenses (past

PLAINTIFFS' SEVENTH AMENDED PETITION 7 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 30 Page 98 and future), loss of earning capacity (past and future), disfigurement (present and

future), loss of income (past and future), emotional distress (past and future), and

mental anguish (past and future).

27. As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount

in excess of the minimum jurisdictional limits of this Court. Carla's special damages

include, but are not limited to: loss of consortium (past and future) and loss of

household services (past and future).

EXEMPLARY DAMAGES 1

28. Plaintiffs further allege that Defendants' acts and omissions, whether taken

singularly or in combination, were aggravated by the kind of malice and reckless

disregard for which the law allows the imposition of exemplary damages. TC's conduct

amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts

to gross negligence as by the laws of Texas. CME is either directly liable for exemplary

damages because of its conduct or liable because of its agent's acts. MPF's conduct

amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,

Plaintiffs seek such exemplary damages against each defendant named herein in an

amount that exceeds the minimum jurisdictional threshold of the Court.

1 Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs' Seventh Amended Petition). See Al Parker Buzek Co. v. Touchy, 788 S.W.2d 129, 130 (Tex.App.-Houston [1 11 Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 344 S.W.2d 228, 231 (TexApp.-Houston 1961, no writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of exemplary damages assessed against each defendant. See Fazrfield Ins. V. Stephens Martzn Pavzng, LP, 246 S.W.3d 653, 667 (Tex. 2008). :\owhere in CME's Special Exceptions to P's Sixth Amended Petition does it state legal authority supporting its objection to the manner in which Plaintiffs' have specially pied for exemplary damages.

PLAINTIFFS' SEVENTH AMENDED PETITION 8 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 31 Page 99

JURY DEMAND

29. Plaintiffs request that a jury be convened to try the fact issues in this action. A

jury fee has been tendered and accepted by the Smith County District Clerk.

PRAYER

VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded

damages which are set forth above and which are in the sum in excess of the minimum

jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate

permitted by law, post-judgment interest from the date of judgment until paid at the

highest rate permitted by law, attorney fees, and for such other and further relief, both at

law or in equity, to which Plaintiffs may be justly entitled.

Respectfully submitted, THE LAW OFFICES OF ERNESTO D. SIGMON

Isl Ernesto D. Sigmon ERNESTO D. SIGMON State Bar No. 24010397 5872 Old Jacksonville Highway Suite 624 Tyler, Texas 75703 2141395-1546 (Telephone) 9031944-7496 (Facsimile)

ATTORNEY FOR PLAINTIFFS

PLAINTIFFS' SEVENTH AMENDED PETITION 9 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 32 Page 100

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document has been served on all counsel of record on the 2nd day of December 2014 as follows:

VIA EMAIL Mr. Trey Yarbrough Yarbrough Wilcox, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 FAX: 903.595.0191

ATTORNEYS FOR DEFENDANT TEXAS COLLEGE

VIA EMAIL Wesson H. Tribble Dan McManus Tribble, Ross & Wagner 3355 West Alabama Street, Suite 1200 Houston, Texas 77098

ATTORNEYS FOR DEFENDANT CHRISTIAN METHODIST EPISCOPAL CHURCH

VIA EMAIL Ryan K. Geddie Martin, Disiere, Jefferson & Wisdom, LLP Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas I 75248 Phone: (214) 420-5500 I Fax: (214) 420-5501

ATTORNEYS FOR DEFENDANT MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"

Isl Ernesto D. Sigmon Ernesto D. Sigmon

PLAINTIFFS' SEVENTH AMENDED PETITION 10 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Seventh Amended Petition .docx APPENDIX 33 Page 101

Electronically Filed 1/19/201510 03 49 AM Lois Rogers, Smith County District Clerk Reviewed By Lana Fields

CAUSE N0.13-3363-A

GARRY L. ROLLINS and IN THE DISTRICT COURT CARLA D. ROLLINS

Plaintiffs,

Vs. SMITH COUNTY, TEXAS

TEXAS COLLEGE and MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL"

Defendants, 7th JUDICIAL DISTRICT

PLAINTIFFS' EIGHTH AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),

complaining of Texas College ("TC") and MPF Investments, LLC d/b/a A-1 Rent All ("A-

1") (collectively "Defendants") and file this Eighth Amended Original Petition:

DISCOVERY CONTROL PLAN LEVEL

1. Discovery is being conducted under Level 2 of the Discovery Control Plan

pursuant to Texas Rule of Civil Procedure 190.3.

PARTIES AND SERVICE

2. Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas

County, Texas.

3. Defendant TC is a Texas Nonprofit corporation with its principal office in Smith

County, Texas and has been served with process through its registered agent Dwight J.

PLAINTIFFS' EIGHTH AMENDED PETITION Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 34 Page 498

Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered

in this matter through its attorney of record.

4. Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas

limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,

Texas 75701. A-1 has answered in this matter through its attorney of record.

CLAIM FOR RELIEF

5. Plaintiffs seek monetary relief in an amount over $1,000,000. Plaintiffs also

demand judgment for all other relief to which they may be entitled as a result of the

harms and losses made the basis of this lawsuit. See Tex.R.Civ.P. 47(d).

VENUE

6. Smith County, Texas is a county of proper venue for this suit in accordance with

Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a

substantial part of the events or omissions giving rise to this cause of action occurred in

Smith County, Texas.

AGENCY

7. At all times material hereto, Defendants acted by and through actual, apparent,

ostensible, or by estoppel agents, acting within the course and scope of such agency.

FACTS

8. Garry L. Rollins (hereinafter "Rollins") is a maintenance worker employed by

Texas College in the capacity of maintenance technician. Texas College has rented

heavy equipment "aerial work platforms" from A-1 on various occasions.

9. Rollins' formal work title was "Maintenance Technician". His office was in the TC

Physical Plant (the "Plant"). Rollins reported to Roland Brackens, the Plant

Superintendent, and to James Harris, Vice President of Business and Finance at TC.

PLAINTIFFS' EIGHTH AMENDED PETITION 2 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 35 Page 499

Rollins also supervised a three to four person maintenance crew. Rollins' overall

responsibility at TC included general maintenance, light construction, driving detail and

essentially anything else the school required. He was hired to work at TC in 2008.

10. During September 2013, Rollins was asked by his supervisor to help move some

marble counter tops that were to be installed in the school's Science building. The

slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.

Rollins and one other worker to perform the task with no other assistance-man nor

machine. VVhile moving the slab, Mr. Rollins sneezed/coughed, dropped the object and

suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins

sought emergency medical care because of the incident and was advised not to drive.

Rollins informed agents and employees of TC of his restriction and was subsequently

removed from a TC driving task that he had been performing on Tuesdays and

Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins

from the task.

11. A few weeks later, sometime during October 2013, the gymnasium ceiling at TC

needed repair. TC rented a hydraulic "scissor lift" (the "Lift') from defendant A-1 for

Plaintiff Rollins and others to use while doing the repairs.

12. The Lift is capable of reaching upwards of approximately 20 feet from the ground

and is often accompanied by a safety harness to prevent worker injury. TC did not rent

or purchase a harness for use with the Lift, nor did it purchase or rent any other

personal protective equipment needed to ensure worker safety. A-1 did not offer or

suggest that TC purchase or rent personal protective equipment for use with the Lift nor

did it adequately confirm whether TC or its agents were "qualified personnel" with the

training and experience needed to safely operate the Lift. A-1 did not familiarize Rollins

PLAINTIFFS' EIGHTH AMENDED PETITION 3 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 36 Page 500 with the Lift and its operation nor did it offer to train Rollins. A-1 Rent All did not include

an owner/operator manual with the Lift as required by the manufacturer, JLG.

13. On or around October 22, 2013 TC directed Rollins and others to use the Lift "as

is" to make the repairs-minus training or supervision. After completing the work,

Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported

the incident to the TC human resources department as required. TC did not formally

investigate the incident nor did it report Mr. Rollins' workplace fall to OSHA. At the

time, Rollins assumed his fall had been relatively inconsequential as he was able to

walk away unassisted.

14. Three days later, on or around October 25, 2013, Rollins lost sensation in his

legs and toes and was subsequently admitted to Zale Lipshy University Hospital in

Dallas Texas where he underwent invasive neck surgery.

15. Rollins is now convalescing at home, unable to walk unassisted and requires

intensive at home physical therapy and care three times a week. He is no longer able

to perform many of the household tasks he once did to assist his wife Carla with the

maintenance and care of their home.

16. On or around December 6, 2013 Rollins received correspondence from TC

advising him that he would be terminated if he does not return to work within 3 months.

CAUSES OF ACTION

TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE

17. Texas College was Rollins' employer at the time of his avoidable injury and owed

him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's

Compensation and does not carry any sort of insurance for work related injury.

Defendant Texas College breached its duty of care to Rollins. Its breach includes and

PLAINTIFFS' EIGHTH AMENDED PETITION 4 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 37 Page 501 is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)

furnish reasonably safe machinery or reasonably safe personal protective equipment for

use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate

help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins

while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff

Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions

by TC are violations of the Texas Labor Code (Chapter 411 et. seq.), the common laws

of Texas, and various other rules and regulations pertaining to worker safety. As such,

TC's conduct with respect to Garry Rollins constitutes negligence and gross negligence.

MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE AND GROSS NEGLIGENCE

18. MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others as well as a duty to take affirmative action to avoid increasing the

danger from a condition created by its conduct. Defendant MPF breached its duty of

care to Plaintiffs. MPF's breach includes and is not limited to its failure to: 1) ensure that

the Lift was being rented and used by competent and authorized persons; 2) deliver the

Lift in "fit for service" condition prior to use; 3) offer training or familiarization with the

Lift; and 4) to act as a reasonable and prudent renter of heavy machinery under the

circumstances in all manners pertaining to the transaction with TC and the steps it

should have taken to prevent the readily foreseeable harm that could result from unfit,

untrained or incompetent operators using the Lift. The foregoing acts and omissions by

MPF constitute negligence and gross negligence.

PLAINTIFFS' EIGHTH AMENDED PETITION 5 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 38 Page 502

DAMAGES TO PLAINTIFFS

19. Defendants' combined negligence has proximately caused damage to

Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which

Plaintiffs pray judgment.

20. As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum

jurisdictional limits of this Court. Such damages include, but are not limited to: physical

pain (past and future), physical impairment (past and future), medical expenses (past

and future), loss of earning capacity (past and future), disfigurement (present and

future), loss of income (past and future), emotional distress (past and future), and

mental anguish (past and future).

21. As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount

in excess of the minimum jurisdictional limits of this Court. Carla's special damages

include, but are not limited to: loss of consortium (past and future) and loss of

household services (past and future).

EXEMPLARY DAMAGES 1

22. Plaintiffs further allege that Defendants' acts and omissions, whether taken

singularly or in combination, were aggravated by the kind of malice and reckless

1 Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs' Eighth Amended Petition). See Al Parker Buzek Co. v. Touchy, 788 S.W.2d 129, 130 (Tex.App.-Houston [1 11 Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 344 S.W.2d 228, 231 (TexApp.-Houston 1961, no writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of exemplary damages assessed against each defendant. See Fazrfield Ins. V Stephens Martzn Pavzng, LP, 246 S.W.3d 653,667(Tex.2008}

PLAINTIFFS' EIGHTH AMENDED PETITION 6 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 39 Page 503 disregard for which the law allows the imposition of exemplary damages. TC's conduct

amounts to gross negligence as defined by the laws of Texas. MPF's conduct amounts

to gross negligence as defined by the laws of Texas. In light of the foregoing, Plaintiffs

seek such exemplary damages against each defendant named herein in an amount that

exceeds the minimum jurisdictional threshold of the Court.

JURY DEMAND

23. Plaintiffs request that a jury be convened to try the fact issues in this action. A

jury fee has been tendered and accepted by the Smith County District Clerk.

PRAYER

VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded

damages which are set forth above and which are in the sum in excess of the minimum

jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate

permitted by law, post-judgment interest from the date of judgment until paid at the

highest rate permitted by law, attorney fees, and for such other and further relief, both at

law or in equity, to which Plaintiffs may be justly entitled.

Respectfully submitted, THE LAW OFFICES OF ERNESTO D. SIGMON

Isl Ernesto D. Sigmon ERNESTO D. SIGMON State Bar No. 24010397 416 West Saulnier Street Houston, Texas 77019 2141395-1546 (Telephone) 7131485-6056 (Facsimile)

ATTORNEY FOR PLAINTIFFS

PLAINTIFFS' EIGHTH AMENDED PETITION 7 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 40 Page 504

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document has been served on all counsel of record on the 19th day of January 2015 as follows:

VIA EMAIL Mr. Trey Yarbrough Yarbrough Wilcox, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702 FAX: 903.595.0191

ATTORNEYS FOR DEFENDANT TEXAS COLLEGE

VIA EMAIL Ryan K. Geddie Martin, Disiere, Jefferson & Wisdom, LLP Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 Phone: (214) 420-5500 I Fax: (214) 420-5501

ATTORNEYS FOR DEFENDANT MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"

Isl Ernesto D. Sigmon Ernesto D. Sigmon

PLAINTIFFS' EIGHTH AMENDED PETITION 8 Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings:Rollins Eighth Amended Petition .docx APPENDIX 41 Page 505

APPENDIX 42

APPENDIX 43

APPENDIX 44

APPENDIX 45

APPENDIX 46

STATE OF TEXAS § DALLAS COUNTY §

Before me, the undersigned notary, on this day personally appeared Garry L. Rollinl, the affiant, whose identity is known to me. After I administered an oath, affiant testified as follows:

1. "My name is Garry L. Rollins. r am over 18 years of age, of sound mind, and capable of making this

affidavit. The entire facts stated in this affidavit are within my personal knowledge and personal

experience and are true and correct."

2. "I gave sworn testimony in this case at my deposition on July 7. 2014. I am a former employee of

Texas Colleae in Tyler, Texas. I worked at Texas College as a Maintenance Tech and Supervisor for

about six years. I was injured on the job at Texas College on two occasions: During early September

2013 and on October 22, 2013. Roland Brackens was my immediate supervisor during the times I was

injured at Texas College. '-Ii B:aellCiIS I "79. sm;s,) k) 'i' naml sf NUIR ti ' dC's cenMA*

. lilt ft JOlA W,lhS:. . . . g••• lsem' rempEI) dfel liOik fe, TillIS Co"'g' wh ll • b, 'II'? glng

emplbjed dieta IS SUpe.h.wads"lUfdie Ph;sl"l PlBiitsiU: AwsSh it illa'u ti.1I1 011'. E'Bili 'of

It••''S2 POIl8j4 M' g. ok.,.; 'tr"lh RWtp, nn,s,'si ts I" d habU. fi.n 'k. 17k n" c

!I iallEge slab ecs'Ls: top. 'It ,I. 8uichCO BaUdl", but AD WiSdwcsst\t1 Sid did j' I'· the

111= bue of diC pilU lit oew qUlLIS: As arid Ie, 'hs nrd'llJ2S' , U•• 'ill" l'b .1. d

MS' i t atlo:: MCiillE tfdYMted wah 1.11. Blwlsms 11 It 'h' "'ork bed nm 'xc 2?p"'wd. On the

day I got hurt, Mr. Brackens instructed me and another employee to move the counter tops. I informed

Mr. Brackens that these counters were pure marble and extremely heavy <at least ISO lbs.) and asked if

he would be providing back braces to make the work safer. I am in my mid fifties, and am not as

strong as I was when younger, and have suffered previous work related injuries to my hand, knees and

neck. Texas College and Mr. Brackens were aware of these injuries as I have been to the doctor on

several occasions and given the Human Resources department my medical excuses over the years. Jhe

I olicaseS attached ts m) ,msaolt a 'P I 'he 'm"'s the· '7 pzsus'.y ".... rt: ..,... sui tin.. IS_ • ,. T'xer ca"'W. Mr. Brackens indicated that he would provide this

APPENDIX 47 Page 4131 help but never did so. Myselfand other Plantemployees had requested equipment necessary for safer

work conditions before like hard hats and boots. but Texas College never provided any. Moving

marble slabs like this was not part of my normal work duties. )JItt1were not trained or instructed on

proper lifting techniques or given any direction for performing a safe lift of this size. Mr. Brackens

left for vacation instructing us that the counters should be moved by the time he returned. J struggled

with the weight during the move; the marble slabs were awkward to handle and 1 had difficulty

positioning myself under the weight. I coughed/sneezed while lifting the marble, dropped it and

briefly passed out. I injured my back and begin experiencing pain and tingling from the neck down.

The next day, September 9. 2013, I went to the a ttiqilexd "it... ,lIilRlhl,lIa b 7'5 jp ,ddi'hl ,. fall bsd) pain. I liM ,I.. inc.. t; the dooM lb "old dilo4hg. "ie deeM's uU U'd . end tn ISSJ 'it 8' Exhibjt B W'S th· pm' tbpt I MR . ism the desw: at ISJ I .

I informed Mr. Harris. Roland Brackens' boss. and later Mr. Brackens himself that I had injured

myself, and was now having dizziness and blackout spells. I also produced a Doctor noteto prove that

I had been to the hospital. Mi. naais U. i.elillil thea .,moocd iLie foam a dL h 8 1"*1' I had

been performing for some time at Texas College where I would drive students from Dallas to Tyler to

attend classes. Me HernE ad P:h. HilOheu I 2110d m. fro... dilolal jeb lllPlJII *13 J.

""nt tg 'Pd ••SSi nadeas If I was to blaeltoat Silaile 'Ju vheel 4

3. During this time, I also began to experience problems getting along with Mr. Brackens. At times I

questioned Mr. Brackens leadership ability and competence. He did not like that. Over the course of

the next several weeks in September and into October, Mr. Brackens began having me perform

maintenance and repair jobs that were at times degrading and a little frightening. For example, on one

occasion he insisted that I crawl underneath several buildings on campus to take photographs of the

different buildings' foundation. I wasn't given a flashlight or anything to assist with crawling around

hundreds of yards in the dark underneath buildings. Instead. I had to use my cell phone. After I

completed the assignment, Mr. Brackens had me to go back under the buildings because he didn't like

the quality of the photos 1 took. I refused to go a second time on account that I felt the work was

APPENDIX 48 Page 4132 dangerous not being able to see in the dark and it made me very uncomfortable crawling around in

tight spaces. UMCi felt. !.UCItUiiS .... p T' rae Ca"I"

t

tlull '1'111 If PI S pbas;s OR 'Pf'$t' or

trisi•• ft. Wij Of me W6tk we Ntie _IIIItcl. '.T;lflill. il. ltis 1"11 isisl ..1 'rd'Tbip at Iexl'

ce"s.l; ::01£ of lIiU umplo,ws wete Uti Wilt LlJ =" Md sf sl'l9 tri,;,. srd, £ 51 801k\

ae:ltshop•. This kind of thing made me and otheremployees question the school'sattitude toward our

safety.

4. During October 2013, Mr. Brackens assigned me and my crew the job of fIXing the gym ceiling in

preparation for the Texas College homecoming celebration. Texas College rented a scissor lift from

ClA_l R.ent All" in Tyler, Texas for us to do the work at about 19-20 feet in the air. Dr. Fennell wanted

the ceiling repaired and wanted it done immediately. Over the course of my professional career, I

havedone work on roofs and at heights but I havenever operated a scissor lift (which is different from

say a "boom" lift) and J have become leery of heights in my olderage for fear of falling. I explained

to Mr. Brackens that I did not know how to operate a scissor lift and that I was afraid of the height.

Later that day, Mr. Harris called me to his office along with Ms. Bowie and infonned me that Mr.

Brackens had complained that I was an ongoing discipline problem and that J didn't want to do as told,

Mr. Harris infonned me that In orderto keep myjob I needed to get the ceiling fixed as directed.

S. I was present outside the gym when A·I Rent All delivered the scissor lift to Texas College. I asked

the delivery person If A·[ would brini the lift inside the gym and who was going to show us how to

use It. The A·I person informed me that he couldn't bring the lift indoors and thlt the folks at Texas

Collcae knew how to use the lift. A-I did not offer WI training nor did it familiarize us with the lift.

The person from A·I just came and delivered the machine and left.

6. I began doing the gym ceiling work with Michael Johnson on October 21,2013 as directed by Mr.

Bra<:kens and Mr. Harris. 'lEI liS RSI . . • sJ X be Oil diU II" and we were not supervised. I was

nervous the entire time 1was up there, We also did not fmish that day. 1left a bit early that afternoon

to attend a Doctor's appointment. The next morning, I arrived at work before Mr. Johnson and began

APPENDIX 49 Pace 4133 tryingto operate the lift to complete the repain as instructed. When Mr. Johnson arrived I lowered the

lift and brought him up. While in the air, Michael Johnson told me I didn't look good. He also

testified to this fact in his deposition. r was present at his deposition. He was correct: I didn't feel

right being that high up. Michael suggested that we come down and that I set otTthe lift. Once he

brought the lift down, I went to exit and fell from the top of the platform flat on my back ontothe gym

floor. The top of the lift platform is still a good three feet off the ground when its all the way down,

and I fell straightback with nothing breaking the fall. I don't remember taking the first step down. )

wasn't wearing any safety harness and had not been given a hard hat. Michaellohnson was present

and witnessed my fall and Steve Barron was also presentin the gymwhen (fell. Michael Johnson has

given a statement that it looked like I just "let so". His statement was provided to my lawyer in

connection with this case and is attached to my affidavit as Exhibit C. I bles'n. lI' ,hsn .,' 8" gaO

.ff liN lift: 1I08teOiisuioustS.8 m.Ri.M_US •• i nil i!Om '111 lift. When 1opened my eyes I was on

the floor. The stressofthe workat that height had me disoriented and dizzy and (was already nervous

being that high in the air. All I remember is turning around on the platform, gripping the handrails,

and then being on my back. After my fall, I could not move at first and just lay still on the gym floor

because 1 was a little embarrassed. Eventually, I rolled over and rose to my feet. Michael and Steve

asked me if ( was ok and 1just kind of waved them otT thinking that I was all right Of course, 1 later

ended up having to have major surgery ... t1" If m) Mg ",'1&1'. I.tta... M9' ""1'. deeori'ri". Me: Irj"I!' io .....hci 'I 2215 • • ed e IS Fr'hikia D. l:4mue .e9lewecI dils _WUI'" i•• 9

'1l'Kl'" .1 I ,m fa_iii. Mh RIJ 8WgeOU'g opinion. He pzc $ ideA 'I • lett.: in .li261U •• R i,i siie •

7. "I was afraidof working on that scissor lift in October because I didn't know how to operate it, hadn't

been trained, and was fearful because of my injury and blackouts. I 1 16" pti86l&lIY diM WOlI&.9

-,-" bua h4diCd ali hilled hac"'" of 'sinor !jA, r would not have gotten on the lift if 1 had not

been specifically instructed to do so by Mr. Brackens and later by Mr. Harris l>sd. af whom It. .

kncwJ'di' gf'R,J' b'esko"ts spd rediae' biS?Ii'. The only reason I got on the lift is because I was told

APPENDIX 50 Page 4134 to do so and was made to feel as though my job depended on it. I didn't want to do it. If Mr.

Brackens had looked at the owner's manual and informed me that a person with blackouts shouldn't

be on a lif\, I would not have gotten on. Mr. Brackens however did not do this. He did not look at a

safety manual, and if he did, he certainly did not inform or warn me that a person in my condition

shouldn't be on a scissor lift. Th,l' III'S n"I.., i....", at 'k., ",11'8 •• I .d ,Rn.'ll' .1111111 Widl WIiCit ascii rr In P'S!'" 'nw, u ' Id te db "OIl dtit lie was dUL alt:wd te ••• ni I" burt.

"'lit emple) .. liZ 1&1 It ad. I had never had any problems at Texas College in terms of my work

and performance evaluations and only began Iulvlng some difficulty when Mr. Brackens became

Superintendent of the Physical Plant. Even then my work evaluations ranked me as eitheroutstanding

or very good."

Sworn to and subscribed before me by Garry Rolli•• 0

APPENDIX 51 Page 4135

APPENDIX 52

APPENDIX 53

AFFIDAVIT STATE OF TEXAS § DALLAS COUNTY §

Before me, the undersigned notary, on this day personally appeared SAMUEL L. BARNETT, the affiant, whose identity is known to me. After I administered an oath, affiant testified as follows: 1. "My name is Samuel L. Barnett. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct."

2. "As an introduction, I am a neurological surgeon and associate professor in the Department of Neurological Surgery at The University of Texas Southwestern Medical Center at Dallas. My undergraduate training was done at Indiana University, Bloomington (1991- 1995). I received my medical degree from the University of Cincinnati College of Medicine (1995-1999). My surgical internship was done at the University of Texas Southwestern Medical Center (1999-2000). I completed a neurosurgical residency at the University of Texas Southwestern Medical Center (2000-2005). I received fellowship training in skull base and cerebrovascular neurosurgery at the University of South Florida, Tampa (2005-2006). I was a faculty member at the University of Mississippi School of Medicine for one year (2006-2007) prior to returning to Dallas. Since that time, I have been a faculty member in the Department of Neurological Surgery at The University of Texas Southwestern Medical Center (2007- Present). I am a member of the hospital staffs at Zale Lipshy University Hospital, Parkland Memorial Hospital and the Dallas VA Medical Center. I am board certified by the American Board of Neurological Surgery and I am licensed to practice medicine in Texas and Mississippi. In my current practice, I regularly evaluate and manage patients with traumatic and degenerative spinal conditions."

3. "I have completed my review of Garry Rollins' medical records. Items reviewed include Emergency Room records dated 10/25/2013, inpatient medical records from 10/26/2013 - 11111/2013 and 11115/2013 - 11/20/2013 and an MRI scan of the cervical spine dated 10/25/2013. I personally saw and evaluated Mr. Rollins' on 11115/2013, 11/25/2013, 12/3/2013, 12/16/2013, 12/30/2013, 1/13/2014, 2/17/2014, 3/17/2014, 5/19/2014 and 6/23/2014 and I have reviewed those records as well."

4. "In briefly summarizing Mr. Rollins' medical records, Mr. Rollins has a history of sarcoidosis, asthma, syncopal episodes and a previous C5-C7 anterior cervical fusion. Mr. Rollins was involved in a fall at work on October 22, 2013. Mr. Rollins was getting off of a lift, fell backwards and hit the back of his head. Over the next several days, he began having progressive problems with ambulation. In addition, he had significant neck pain. These complaints, as well as a syncopal episode, ultimately prompted a visit to the emergency department at St. Paul Hospital on 10/25/2013. His evaluation included an MRI of the cervical spine which was performed on the same day. I have reviewed this MRI scan that demonstrates multi-level degenerative changes, evidence of prior fusion from CS-C1 and severe spinal

APPENDIX 54 Page 4048 at C4-5. There is some ussoci:ited abnom1al signal within the spinal cord at this level cvn.sistent with a spinal wrd contusion. Bll$ecl on these tinclings, Mr. Rollills was transterrcd to Znlc-Lipshy University l·fospitul l\1rthcr cure."

5. ''On my initinl I found that he had full strength in his upper extremities and i.lightly diminished strength in his bilutera l lower extremities. He had i11 biceps, triceps, patellar 1md Achilk's rellcxes bilaterally. A lfoffman's sign was bilaterally. Mr. Rollins hud decreased scnsotion to light touch. pinprick, pai11 nnd p1oprioccp1km in his k1wcr extremities a11<l decreased sensation to light touch and puin in his upper A wcll-henll"?d nntl"?rior neck incision from his prior surgery was Mted. Based <lll the history, physical exam und imaging findings. I diagnosed Mr. Rollins wilh n spinal cord con1usion secondary to an acute herniated disc at C4-5. l reconuncndcd a C3-C7 ccrvicul decompression, instrumentation and fusion that he underwent 011 l 0:3012013.

l performed this surgery. Mr. Rollins wus ullimaicly discharged from the hospital 011 11:i2:2013 .''

6. "Mr. RClllin.s was s<:en in the clinic on l 1115:20 l 3 and he was found to have 11 superficial dehisccnce of his incision. He was rc.admitled to the hospital and underwent u wound revision on l l /l 6/2013. He required home hculth nun;il1g for wound care until his wound \vas completely hcakd by l :2812014. ··

7. ''I have c:urcfully reviewed Mr. record :ind MRI sca11s. Tc is my opinion there is a reasonable degree of mcdicul probability 1ha1 Mr. Rollios suffered un acute herniated disc at C4-S und a cord co!ltusion caused by his fall on Oct<.)bcr 2013. It is 11lso my opinion that to a rcnsnnable degree 1)f medical probability that Mr. Rollins will have chro11ic neck pain and spinal cord dysfunction as u rcsul1 of 1hc injury. In my opinion l<l a n.·<1so1111blc degree of medical probability he will require long-term pain rnanagcmcut for 1hcse issues."

The facts and opinions in it are within my personal knowledge and arc and correct."'

('") _,. ..

)

... ...<:•• •• .••if:.°'..r."P'···-·····-·····-·· SAMUELL. BARNETT

Sworn to and subscribl!d me by Ssunuel L. Harnett on ...._.. 20 l 5.

t<"· ·/•, r·u·.. ·•::it·-.,..c .·L<,)

;· . ..t ... · , · ··r l <· :v-.ab. :

Public in ;mcl for D the Stale ofTcx11s My commission expires: (..,-

APPENDIX 55 Page 4049

APPENDIX 56

APPENDIX 57

APPENDIX 58

APPENDIX 59

APPENDIX 60

APPENDIX 61

APPENDIX 62

APPENDIX 63

Electronically Filed 2/13/2015 411 05 PM Lois Rogers, Smith County District Clerk Reviewed By Lana Fields

CAUSE NO. 13-3353-A

GARRY L. ROLLINS AND § IN THE DISTRICT COURT CARLA D. ROLLINS, § Plaintiffs, § § v. § SMITH COUNTY, TEXAS § TEXAS COLLEGE, CHRISTIAN § METHODIST EPISCOPAL CHURCH § AND MPF INVESTMENTS, LLC § D/B/A "A-1 RENT ALL", § Defendants. § 7TH DISTRICT COURT

DEFENDANT TEXAS COLLEGE'S OBJECTIONS/MOTION TO STRIKE EVIDENCE AND REFERENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE'S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF THE 7rn DISTRICT COURT:

Defendant, Texas College, files these Objections/Motion to Strike Evidence and

References in Plaintiffs' Response to Texas College's Motion for Summary Judgment and

respectfully shows the Court:

INTRODUCTION

On January 15, 2015, Texas College filed a Traditional and No-Evidence Motion for

Summary Judgment on all causes of action alleged by Plaintiffs. On February 4, 2015, Plaintiffs

filed a Response to Texas College's Motion for Summary Judgment. Plaintiffs attach and

reference numerous items within their response as summary-judgment evidence. Texas College

objects to certain evidence submitted with the response as incompetent and defective, and to

certain references within the Response at not supported by competent evidence. The College

respectfully requests that the objections stated below be sustained, the objectionable material and

references to the same be stricken from the record, and that the objectionable material not be

considered by the Court.

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 1OF19 APPENDIX 64 Page 3666

ARGUMENT AND AUTHORITY

Evidence included in response to a motion for summary judgment must be admissible

under the rules of evidence. United Blood Servs. V. Longoria, 938 S.W.2d 29, 30 (Tex. 1997);

see TEX. R. Crv. P. 166a(f). Facts must be proven in the same manner or type of evidence that

would be admissible at trial. See TEX. R. Crv. P. 166a(c). If a party's summary-judgment proof

contains evidence that would not be admissible at trial, the appropriate avenue to challenge such

is through written objections and requesting that the inadmissible summary-judgment proof be

stricken. See TEX. R. Crv. P. 166a(f)

I. Plaintiffs' Seventh and Eighth Amended Petition

A party cannot rely on factual assertions in its own pleadings as summary-judgment

proof. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Texas College

objects to, and requests that the Court strike any reference by Plaintiffs to their amended

petitions in the Response, as they are not competent evidence on which Plaintiffs may rely.

II. Excernts from Deposition of Roland Brackens

Not Qualified to Testify Deposition Testimony: 18:4 - 18:25; 22: 15 - 23: 14; 24:8 - 24: 11; 24:23 - 25:6.

Mr. Brackens also testified that OSHA imposes Pg. 16 a duty on employers to train employees that are using scissor lifts so that they may recognize "associated work hazards", and that he did not train Mr. Rollins on operating a lift under this su ervision at Texas Colle e - r OSHA.

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE20F19 APPENDIX 65 Page 3667

Q: (MR. SIGMON): And if you look at - if you Pg. 17 look at subsection (a) of [OSHA] Section 1926.454, it states that, "The employer shall have each employee who performs work while on a scissor lift trained by a person qualified in the subject matter to recognize the hazards associated with the type of set - of scissor lift being used and to understand the procedures to control or minimize those hazards." And you've just testified that that did not take place, correct?

A. Correct. Q. So the rules that we just spoke about, Pg. 17 specifically those OSHA examples, those are safety rules, right?

A. Correct. Q. But my question to you, Mr. Brackens, is, Pg. 18 you just testified that OSHA section 1926.454 was not followed. It was violated. That rule was broken. No training was given by a competent person to these employees at Texas College on how to operate a scissor lift. A. Okay.

Q. Correct? A. Yes, I correct - yes, I did say that.

Mr. Brackens was not qualified by Plaintiffs to testify as an expert on specific OSHA

rules or regulations or make any conclusory opinions on same, and made it clear through his

testimony that he is not an expert on same. Brackens dep. 18:8-14. While he may be familiar

generally with OSHA, Plaintiffs have attempted to obtain definitive legal conclusions from

Brackens and elicit from him opinion testimony on specific standards. While he has been shown

to be knowledgeable and experienced on the mounting, dismounting, and the operation of scissor

and boom lifts and other matters addressed in his deposition, OSHA standards and their

application to specific workplace items are not among those matters. Texas College objects to

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE30F19 APPENDIX 66 Page 3668 the specific portions referenced above and requests that this objection be sustained, the

incompetent evidence be stricken, and the Court disregard same.

III. The JLG Owner's Manual Model 1930-ES

Texas College objects to Plaintiffs' attempted use of a purported JLG Owner's Manual

on the basis that Plaintiffs have failed to establish its authenticity or relevance, or lay any proper

predicate for the admissibility of same, either through a qualified witness or otherwise. The

purported manual is inadmissible hearsay and not competent as summary-judgment proof. No

exception to the hearsay rules apply to the subject manual filed as an independent document with

the Court. Since Plaintiffs are attempting to offer statements within the JLG Owner's Manual to

prove the matter asserted, the JLG Owner's Manual itself, and the statements referenced within

it, are inadmissible hearsay.

Texas College's objections to the JLG Owner's Manual should be sustained, any

reference to the JLG Owner's Manual should stricken, and the JLG Owner's Manual and any

reference to it should be disregarded by the Court. The references within Plaintiffs' response

that Texas College requests to be stricken are listed below.

p

Page 16

Use extreme caution when entering or leaving platform. Ensure that the scissor arm assembly is fully lowered. Face the machine when entering or leaving the platform. Always maintain "three point contact" with the machine using two hands and one foot or two feet and one hand at all times during entry and exit. JLG, the manufacturer of the subject lift, also Page 18 requires that lift operators be trained.

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE4OF19 APPENDIX 67 Page 3669

There is developed evidence (affinned by Page 18 common sense, and discussed supra) that a scissor lift is a piece of machinery that requires extreme caution because of its potential dangers and hazards. The undisputed evidence is that a person in Mr. Page 20 Rollins condition should not have been operating this type of machinery and that it is incumbent on the employer to recognize these potential hazards The undisputed evidence is that a person in Mr. Page 22 Rollins condition should not have been on or ooerating this type of machinery

IV. Affidavit of Garn Rollins

An affidavit attached in response to a motion for summary judgment must contain facts

that would be admissible in evidence at trial. TEX. R. Crv. P. 166a(f); United Blood Servs. v.

Longoria, 938 S.w.2d 29, 30 (Tex. 1997). Set forth below are those portions of Rollins' affidavit

and the corresponding references within Plaintiffs' response the College respectfully submits

should be stricken, and the supporting grounds. However, the affidavit is so replete with

inadmissible hearsay, irrelevant testimony, and sworn statements that fundamentally contradict

Rollins' earlier sworn deposition testimony (making it a "Sham Affidavit"), the College

respectfully requests in the alternative that it be stricken in its entirety.

A summary judgment affidavit must affinnatively establish the basis for affiant's

personal knowledge of the infonnation in the affidavit. TEX. R. Crv. P. 166a(f); Kerlin v. Arias,

274 S.W.3d 666, 668 (Tex. 2008). A statement that the affidavit is based on personal knowledge

is insufficient. Kerlin at 668. Furthennore, Rule 602 of the Texas Rules of Evidence provides

that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter."

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE5OF19 APPENDIX 68 Page 3670

Only relevant evidence is admissible. TEX. R. Evm. 402. Relevant evidence is evidence

that has "any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence." TEX. R. EVID. 401.

Hearsay statements in summary judgment affidavits are not competent evidence and

should not be considered by the court. Powell v. Vavro, A1cDona/d & Assocs., 136 S.W.3d 762,

765 (Tex. App. - Dallas 2004, no pet.). 'Hearsay' is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. TEX. R. Evm. 801(d). Hearsay is not admissible evidence "except as provided

by statute or these rules or by other rules prescribed pursuant to statutory authority." TEX. R.

EVID. 802.

Mr. Brackens, through RBHR, attempted to get Lack of Personal Knowledge a contract from the school to move several large Relevance mari>le slab counter tops in the Science Building Hearsay but was unsuccessful and did not get the work because of the price he was quoting. As a result, the worlc went undone for a time. The school administration became frustrated with Mr. Brackens that the work had not been completed.

Obiectionable Reference in Resnonse Pae:e Reference In fact, Mr. Rollins confirms that the actual job Pg. 13 of moving the mari>le was originally meant to be outsourced, hence Mr. Brackens' effort to win the work contract through his side business, "RBHR".

The foregoing statements in paragraph 2 should be disregarded by the Court as irrelevant

to this litigation. They do not establish or make more/less probable the elements Plaintiffs are

required to prove for their allegations against Texas College, as this portion does not make it DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE6OF19 APPENDIX 69 Page 3671 more/less probable that Texas College owed a duty to Plaintiffs, that Texas College breached an

alleged duty owed to Plaintiffs, or that any breach of an alleged duty Texas College owed to

Plaintiffs was the producing/proximate cause of Plaintiffs' injuries. Therefore, the foregoing

statements and references should be disregarded by the Court and stricken as completely

irrelevant.

The foregoing statements in paragraph 2 of Rollins' affidavit, and the reference in

Plaintiffs' response, should also be stricken and disregarded by the Court because Rollins has

wholly failed to show how he has personal knowledge to testify to same. They are inadmissible

hearsay. Rollins simply states them in a conclusory manner. Therefore, Texas College objects

to said statements and moves the Court to strike and disregard them.

Lack of Personal Knowledge, competency, s eculative

This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins lacks personal knowledge or competency to testify

to the matters contained therein. Mr. Rollins has in no way demonstrated any knowledge or

competency to testify on the weight of the marble slab, much less that it weighs "at least 150

lbs." Rollins' statement constitutes pure speculation. Texas College objects to same and moves

the Court to disregard and strike it.

The medical excuses attached to my affidavit as No Predicate "Exhibit A" are the excuses that I received Hearsay personally from my doctors and that I gave to Texas College.

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 70F 19 APPENDIX 70 Page 3672

The generic "medical excuses" Mr. Rollins' references in his affidavit and attached as

Exhibit A are hearsay for which no exception applies and for which no proper predicate has been

laid. Furthermore, said documents provide no reason for the medical visit nor recite any

restriction, and are in no way probative of Plaintiffs' claims. Texas College objects to same and

moves that the Court disregard and strike them.

We were not trained or instructed on proper Lack of Personal Knowledge lifting techniques or given any direction for performing a safe lift of the size.

Rollins has not established in any way that he has personal knowledge as to what training

or instruction other employees of Texas College had received. Without elaborating on how this

alleged knowledge was acquired, there is insufficient information in the affidavit to establish that

Mr. Rollins knew what type of training other Texas College employees received, what

instructions on proper lifting techniques other Texas College employees received, or what

directions were provided to other Texas College employees. Therefore, Texas College's

objection for this portion of Mr. Rollins' affidavit should be sustained, these portions should be

stricken, and these portions should not considered by the Court.

Not Qualified as Expert Hearsay

This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins is not qualified to testify to said matters and the

information is hearsay. This is made clear by his reference to the defective exhibit which does

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGES OF 19 APPENDIX 71 Page 3673 not diagnose or even recite "experiencing blackouts." Mr. Rollins is not competent to testify as

to his medical diagnosis, as he is neither a doctor nor designated as an expert in medicine.

Therefore, Texas College's objection to this inadmissible embellishment and misstatement in

Rollins' affidavit should be sustained, and this portion stricken and not considered by the Court.

"I was also instructed by the doctor to avoid Hearsay driving. The doctor's note and record attached to my affidavit as Exhibit B was the note that I received from the doctor at Baylor."

This portion within paragraph 2 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because the information is hearsay. Any purported statements made by

"the doctor" to Mr. Rollins would be hearsay to which no exception applies. Furthermore, the

doctor's note and records attached to Mr. Rollins' affidavit as Exhibit Bare hearsay for which no

exception applies. Mr. Rollins' sole purpose for including such records is to prove the truth of

the matter asserted by Mr. Rollins. Therefore, Texas College's objection for this portion of Mr.

Rollins' affidavit and the exhibit referenced should be sustained, this portion and exhibit should

be stricken, and this portion and the exhibit referenced disregarded by the Court.

"Mr. Harris and Mr. Brackens removed me from Lack of Personal Knowledge the driving job because they didn't want to Hearsay endanger students if I was to blackout while behind the wheel."

Mr. Rollins informed Texas College of these Pg. 2 infirmities and was later removed from driving Texas College students to and from campus as a safety precaution.

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 9OF19 APPENDIX 72 Page 3674

"prompting the school to remove him from a Page 19 driving detail he performed."

This portion within Section 2 of Mr. Rollins' affidavit, and the references in Plaintiffs'

response, should be stricken and not considered by the Court because Mr. Rollins lacks personal

knowledge to testify to the matters contained therein. Mr. Rollins has not established in any way

that he has personal knowledge as to why he was removed from the driving job. To the contrary,

Mr. Rollins is merely advancing speculative self-serving "reasons" and stands in direct

contradiction to the testimony of a Texas College employee who testified as to the actual reason

and who has been shown to have knowledge. Texas College moves the Court to disregard and

strike this portion of Mr. Rollins' affidavit and the references in Plaintiffs' response.

Under Mr. Brackens authority at Texas College Lack of Personal Knowledge there was never an emphasis on safety or Hearsay training for any of the worlc we were assigned. Conclusocy While under his supervision and leadership at Texas College, none of the employees were ever sent to any kind of safety training sessions or OSHA workshops. This kind of thing made me and other employees question the school's attitude toward our safe .

This portion within Section 3 of Mr. Rollins' affidavit should be stricken and not

considered by the Court. Mr. Rollins has not established that he has personal knowledge as to

what type of training sessions or worlcshops other employees were sent to nor the attitude or

feelings of other employees toward Texas College. Rollins offers nothing in his affidavit to

establish any personal knowledge as to what other employees informed him, that they did not

receive training, that they did not attend any workshops, or how he acquired the other

employees' beliefs in regard to the school's attitude toward safety. Without providing such

information, Mr. Rollins has failed to establish that he has the requisite personal knowledge DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE lOOF 19 APPENDIX 73 Page 3675 required to be considered competent to testify to such matters and is merely advancing self-

seiving speculation on the training received and beliefs of other employees. Therefore, Texas

College's objection for this portion of Mr. Rollins' affidavit should be sustained, this portion

should be stricken, and this portion should not considered by the Court.

Lack of Personal Knowledge

This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins lacks personal knowledge to testify to the matters

contained therein. Mr. Rollins has not established in any way that he has personal knowledge as

to what type of training other employees received and this conclusoiy statement is in direct

conflict with the testimony of Michael Johnson and Steve Barron, two employees of the College

who testified that they were trained to operate a scissor lift. Barron has testified that he was

trained by Rollins. Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit

should be sustained, and this portion should be stricken, and disregarded by the Court.

I "Sham" affidavit

After coming down from the aerial work, Mr. Page 2 Rollins lost consciousness as he was exiting the lift's work platform and fell from the top of the platform straight back onto the gym floor.

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 11OF19 APPENDIX 74 Page 3676

"Gary Rollins states both in his affidavit and Page 19 Amended Petition that he lost consciousness while existing from the lift."

"that he lost consciousness existing the lift;" Page 20

Texas College objects to this portion of Rollins' Affidavit or any similar statement in his

affidavit, and the corresponding references in Plaintiffs' response, on the basis that it is a "sham"

affidavit in that respect. An affidavit that contradicts the affiant's previous deposition testimony

without any explanation for the change in testimony and is intended to create a fact issue to

defeat summary judgment is considered a "sham" affidavit. Farroux v. Denny's Restaurants,

Inc., 962 S.W.2d 108, 111 (Tex. App. - Houston [1st Dist.] 1997, no pet.). Without any

explanation as to the change in testimony, the court is to assume that the sole purpose of the

affidavit was to avoid summary judgment. Pando v. Southwest Convenience Stores, 242 S.W.3d

76, 79 (Tex. App. - Eastland 2007, no pet.). "Sham" affidavits are not competent summary

judgment evidence and cannot raise a fact issue. Id.

Mr. Rollins testified multiple times in his deposition that he did not know if he passed out

or lost consciousness. Garry Rollins' Deposition, 141:1 - 141:6; 141:25 - 142:6; 142:15 -

143: 1. Despite Mr. Rollins testifying under oath multiple times that he does not know whether

he passed out or lost consciousness, he now takes the firm position that he in fact did pass out or

lose consciousness. Rollins has reversed himself and now taken this contradictory position,

without explanation, in a misguided effort to create a fact issue, where none exists, regarding

whether Texas College breached a duty of care by allegedly forcing Mr. Rollins to utilize the

scissor lift when it purportedly knew Rollins had an alleged history of "seizures and blackouts."

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 12 OF 19 APPENDIX 75 Page 3677

The affidavit is clearly a sham and the College respectfully submits that it should be disregarded

and stricken, or alternatively, the foregoing statements and references should be stricken.

have Not Qualified/Incompetent to Testify

This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins is not qualified to testify to the matter contained

therein. An opinion as to the reasons for surgery or medically necessary procedures would

require the opinion of a medical expert. Mr. Rollins is not a medical expert and has offered

nothing more than a conclusory opinion that it was the a}leged injuries he incurred at Texas

College's campus that necessitated surgery. Texas College ask that it be disregarded and

stricken by the Court.

"My surgeon's letter to my lawyer describing Hearsay my injury is attached to my affidavit as Exhibit Not shown to be qualified/competent D. I have reviewed this document with my lawyer and I am familiar with my surgeon's opinion. He provided the letter in connection with this case."

This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because the information is hearsay. The letter attached to Rollins'

affidavit as Exhibit D is incompetent hearsay for which no exception applies. Mr. Rollins' sole

purpose for including such records is to prove the truth of the matter asserted by Mr. Rollins.

Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit and the exhibit

referenced should be sustained, and this portion and the exhibit stricken and disregarded by the

Court. DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 13 OF 19 APPENDIX 76 Page 3678 been Lack of Personal Knowledge Irrelevant Incompetent to testify

This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because it is irrelevant hearsay. Mr. Rollins has not established that he

has personal knowledge regarding workers who have been injured or killed because of scissor

lifts, that he has conducted a survey, or that he is qualified or competent to testify as to such

matters. Furthermore, the foregoing statements are irrelevant to this litigation and have no

probative value. Texas College objects and moves that they be stricken and disregarded.

"There was another instance at Texas College Lack of Personal Knowledge that I am personally familiar with where another Irrelevant employee was asked to do work that he was not trained to do and got hurt. That employee was later fired."

This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins lacks personal knowledge to testify on same. Mr.

Rollins has not established in any way that he has personal knowledge that an employee was

asked to do work that he was not trained to do. Instead, he just makes a blanket statement

without information explaining when the information was obtained, how the information was

obtained, whether he observed the alleged incident, or any other information that would tend to

establish that Mr. Rollins had personal knowledge of this occurring.

Furthermore, Rollins' self-serving testimony that the alleged employee "got hurt"

because he was instructed to perform work he was not trained to do lacks any demonstration of

personal knowledge or competent support. Mr. Rollins has not established how he has personal

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 14 OF 19 APPENDIX 77 Page 3679 knowledge that this is the reason for any alleged injuries sustained by the alleged employee.

Without establishing how Mr. Rollins has personal knowledge as to this information, Mr.

Rollins' testimony is mere speculation and is inadmissible.

Still further, Mr. Rollins has not established in any way that he has personal knowledge

that the particular employee was "fired." Instead, he just makes a conclusoiy statement without

information stating when the information was obtained, how the information was obtained, or

any other information that would tend to establish that Mr. Rollins had personal knowledge of

the reasoning for this alleged employees' departure from employment. It amounts to pure

speculation and hearsay. Finally, it is irrelevant to this litigation. Texas College objects and

moves that it be disregarded and stricken.

V. Objections to information contained in Plaintiffs' response without evidentiary support

A party must attach evidence that would be admissible in trial in a response to a motion

for summary judgment to establish any facts contained therein. See United Blood Servs. v.

Longoria, 938 S.W.2d 29, 30 (Tex. 1997); see TEX. R. C1v. P. 166a(f). If a party does not

substantiate the allegations made within its response to a Motion for Summary Judgment with

admissible summary-judgment proof, the information shall not be considered by the Court. Id.

"There was no postings at Texas College No evidentiary support pertaining to safe lifting techniques" (Page 13)

Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence before the Court to establish this alleged fact.

Texas College requests that its objection to this portion be sustained and not considered by the

Court. DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 15 OF 19 APPENDIX 78 Page 3680

Obiectionable Statement in Resnonse Obiection<s)

"by refusing Mr. Rollins' request for greater No evidentiary support assistance with the marble slab." (Page 13)

Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence in support of such statement. Texas College

requests that its objection to no evidentiaiy support be sustained, and that this portion be stricken

and not be considered by the Court.

"The undisputed facts however, are No evidentiary support October incident involved a 'scissor lift'-a piece of heavy machinery that is governed by CFR 1926.454 (as a "mobile scaffold") of the Occupational Health and Safety Act ("OSH Act") and the U.S. Department of Labor; and readily acknowledged by virtually everyone in this case as being potentially dangerous if operated by anyone that is untrained or unsu rvised." a es 15-16

Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence in support. Therefore, Texas College

requests that its objection to same be sustained, and that the unsupported statement be stricken

and disregarded by the Court.

Texas College was aware of Mr. Rollins' No evidentiary support previous injuries and then existing physical limits when it ordered him to lift a marble slab in September 2013. (Pages 12-13) There is also evidence that Texas College was No evidentiary support aware that Mr. Rollins had begun suffering blackouts but commissioned him to use the lift anyway. (Page 19)

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 16 OF 19 APPENDIX 79 Page 3681

The foregoing conclusoiy references in Plaintiffs' response should be disregarded by the

Court because of the lack of any competent evidence to support them. They are simply

conclusoiy allegations without competent evidentiary support. The College moves they be

stricken and disregarded.

"Operating a scissor lift is an activity steeped in No evidentiary support regulation and safety warnings and there are Hearsay multiple statistics quantifying the damage, harm Relevance and death resulting from inattention to the machine's otential hazards." Pa es 21-22

Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence to support the truth of such statement. While

Plaintiffs cite to some online statistics, they are not included within Plaintiffs' response, are

hearsay, and there is no way for the Court to determine the credibility of such statistics.

Therefore, Texas College requests that its objection for this portion be sustained, this portion be

stricken from Plaintiffs' response, and this portion not be considered by the Court.

No evidentiary support

Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence in support. The College requests that its

objection be sustained and the unsupported argument be stricken.

VI. Objections to Affidavit of Burt Thorne

Texas College objects to the Affidavit of Burt Thorpe in that Thorpe has not been

properly disclosed as an expert witness. "The affidavit of an expert who is not properly

designated may not be used as evidence in a summary judgment context. Where the expert's DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 170F 19 APPENDIX 80 Page 3682 testimony will be excluded at trial on the merits, it will be excluded from a summary judgment

proceeding." Chau v. Riddle, 212 S.W.3d 699, 704 (Tex. App. -Houston [1st Dist.] 2006) rev'd

on other grounds, 254 S.W.3d (Tex. 2008). Texas College incorporates by reference

Defendants' Motion to Strike Burt Thorpe and Defendants' Reply to Plaintiffs' Response to the

Motion to Strike Burt Thorpe. Texas College re-urges the arguments contained therein and

requests that the Court sustain Texas College's objection, and disregard and strike the Thorpe

affidavit. Furthermore, as set forth in the College's Reply, Thorpe's affidavit contains

conclusocy statements, portrayed as opinions, which are based on incomplete underlying

evidence and clear misstatements or misinterpretation of underlying facts. And based on

references and cites to hearsay with no proper predicate or foundation established.

WHEREFORE, PREMISES CONSIDERED, Defendant, Texas College, respectfully

requests that the foregoing evidence and statements in Plaintiffs' Response be stricken and

disregarded by the Court.

Respectfully submitted,

Yarbrough Wilcox, PLLC 100 E. Ferguson, Suite 1015 Tyler, Texas 75702 903-595-3111 office 903-595-0191 fax

Isl Dallas W. Tharpe Trey Yarbrough Bar No. 22133500 trcy;ll;yw-lawfim1.com Dallas W. Tharpe Bar No. 24052036 da1la5'£iyw-lawfim1.com

ATTORNEYS FOR TEXAS COLLEGE

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 18 OF 19 APPENDIX 81 Page 3683

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above motion has been seived on all

counsel of record in accordance with the Texas Rules of Civil Procedure on February 13, 2015.

Isl Dallas W. Tharpe Dallas W. Tharpe

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT PAGE 19 OF 19 APPENDIX 82 Page 3684 incident. Plaintiffs have produced no evidence that apportions or proves A-1 is responsible for

any damages or injury to Plaintiffs.

Plaintiff Carla Rollins Has No Evidence to Support Her Derivative Claims.

All of Mrs. Rollins claims against A-1 fail as a matter of law, the loss of consortium

claim in Plaintiffs' petition also fails as a matter of law. In addition, Mrs. Rollins' claims fail

because she has not produced any competent evidence of damages. The testimony attached from

Carla Rollins does not establish that A-1 caused any of the alleged damages she is claiming.

Therefore, Plaintiff Carla Rollins' claims against A-1 should be dismissed.

v.

OBJECTIONS TO PLAINTIFFS' SUMMARY JUDGMENT EVIDENCE

Summary judgment evidence must be admissible under the rule of evidence. 24

Evidential)' exclusions also apply to summary judgment proceedings as they would at trial. 25

Much if not most of Plaintiffs summary judgment evidence is unauthenticated, hearsay, or

otherwise inadmissible, and should be stricken. Facts must be proven in the same manner or

type of evidence that would be admissible at trial. 26 If a party's summary-judgment proof

contains evidence that would not be admissible at trial, the appropriate avenue to challenge such

is through written objections and requesting that the inadmissible summary-judgment proof be

stricken. 27

Texas Rule of Civil Procedure 193.6(a) provides that "[a] party who fails to make ... a

discovery response in a timely manner may not introduce in evidence material or information

2A United Bloodv. Longoria, 938 S.W.2d 29, 30 (Tex. 1997); see TRCP 166a(f). 2 ' Fort Brown Villas II Condv. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009). 26 See TEX. R. CIV. P. 166a(c). 27 See TEX. R. CIV. P. 166a(f).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T Page 18 ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE

APPENDIX 83 Page 3718 that was not timely disclosed .... " 28 A-1 objects to the repeated use of evidence not disclosed or

produced in response to written discovery. As cataloged in A-1 's pending Motion to Enforce

Order on Written Discovery and for Sanctions and Motion to Strike Burt Thorpe, Plaintiffs'

pattern of refusing to comply with the Texas Rules and this Court's Order now results in the

automatic exclusion of this evidence.

4. Excerpts from the deposition of Mike Frazier

As an initial matter, A-1 objects to the deposition testimony of Mike Frazier as the

attached copy d a draft and not a final copy of the deposition. The deponent has not had a chance

to read and sign the deposition pursuant to the Texas Rules of Civil Procedure. A-1 further

objects to the following testimony:

Question at 59: 10 - Form Objection. Plaintiffs' counsel summarizes and misstates what has been read from the document.

Questions beginning at 60:21 - Form Objection. Plaintiffs' counsel improperly misstates what testimony from other witnesses has been in this case and then sets up improper hypothetical's based on an inaccurate representation of what the previous testimony from other witnesses had been. Intentionally misleading and vague.

Questions beginning at 61:4 - 14 - Form Objection. Plaintiffs' counsel improperly misstates what testimony from other witnesses has been in this case and then sets up improper hypothetical's based on an inaccurate representation of what the previous testimony from other witnesses had been. Intentionally misleading and vague.

Questions beginning at 62:4- Form Objection. Vague. Misquotes prior testimony to elicit a misleading response.

6. The JLG Owner's Manual Model 1930-ES (excerpts).

A-1 first objects to this document because it was not disclosed or produced in written

discovery pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to 28 Tex.R. Civ. P. l 93.6(a).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T Page 19 ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE

APPENDIX 84 Page 3719 mandatory exclusion. A-1 further objects to Plaintiffs' attempted use of a purported JLG

Owner's Manual on the basis that Plaintiffs have failed to establish its authenticity or relevance,

or lay any proper predicate for the admissibility of same, either through a qualified witness or

otherwise. The purported manual is inadmissible hearsay and not competent as summary-

judgment proof. No exception to the hearsay rules apply to the subject manual filed as an

independent document with the Court. Since Plaintiffs are attempting to offer statements within

the JLG Owner's Manual to prove the matter asserted, the complete "JLG Owner's Manual"

itself, and the statements referenced within it, are inadmissible hearsay.

A-1 's objections to the JLG Owner's Manual should be sustained, any reference to the

JLG Owner's Manual should be excluded in total, and the JLG Owner's Manual and any

reference to it should be disregarded by the Court for all purposes.

7. Affidavit of Garry Rollins dated February 3rd, 2015 and attached Exhibits.

An affidavit attached in response to a motion for summary judgment must contain facts

that would be admissible in evidence at trial. 29 The affidavit is so replete with inadmissible

hearsay, irrelevant testimony, and sworn statements that fundamentally contradict Rollins' earlier

sworn deposition testimony (making it a "Sham Affidavit"), A-1 respectfully requests that it be

stricken in its entirety. In the alternative, A-1 's summary judgment motion sets out in detail the

repeated questions to Mr. Rollins and his repeated answers that he does not know how he fell. If

his affidavit is not excluded in its entirety, the statements that directly contradict his prior sworn

testimony should be excluded.

29 TEX. R. CIV. P. ! 66a(f); United Blood SeMJs. v. Longoria, 938 S.w.2d 29, 30 (Tex. 1997).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T Page20 ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE

APPENDIX 85 Page 3720

Hearsay statements in summary judgment affidavits are not competent evidence and

should not be considered by the court. 30 'Hearsay' is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. TEX. R. EVID. 801(d). Hearsay is not admissible evidence "except as provided

by statute or these rules or by other rules prescribed pursuant to statutory authority." TEX. R.

EVID. 802. Rollins statements regarding any statements made by A-1 employees is purely

hearsay and should be excluded as evidence. Further, Garcy Rollins sworn interrogatory answer

served in January 2015 states:

INTERROGATORY NO. 18: If You or your attorneys have any knowledge, either directly or indirectly, of any statement or admission of any kind made by MPF or anyone acting on their behalf regarding the incident, this lawsuit or your injuries that might be relevant to this lawsuit, please describe the statement and/or admission and identify who made the statement or admission and when it occurred.

ANSWER: At present, none; this is what we are hoping to discover during depositions.

Plaintiffs affidavit contradicts his sworn interrogatory answer and such contradictory

statements, in addition to being hearsay, regarding any statements made by A-1 employees

should be excluded.

Finally, the letter from Plaintiffs surgeon Dr. Barnett attached as an exhibit to the

affidavit is inadmissible hearsay. Plaintiff is not capable of proving this letter up in any way and

can certainly not provide a basis for the opinions contained therein. The letter and the opinions

contained are hearsay without any applicable exception and must be excluded.

30 Powell v. Vavro, McDonald& Assocs., 136 S.W.3d 762, 765 (Tex. App. - Dallas 2004, no pet.).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T Page21 ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE

APPENDIX 86 Page 3721

9. Affidavit of Ken Yerrington dated September 23rd, 2014.

A-1 moves to strike the affidavit of Ken Yerrington as a whole and specifically to the

statement that "Mr. Rollins did not operate our sky lift jack that day ... " as a conclusory

statement that fails to provide a factual basis for the conclusion. Further, A-1 moves to strike the

affidavit of Ken Yerrington based on the clarifying affidavit of Ken Yerrington and his

description of the circumstances surrounding ther original affidavit and his clarification that he

was not present at the gym at all times and therefore could not make any statements as to what

occurred when he was not there.

10. Texas College's Answers to Interrogatories.

Plaintiffs improperly attempt to use Texas College's answers to interrogatories against A-

l. Interrogatory answers "may be used only against the party answering the interrogatories." 31

Specifically, a party's answers to interrogatories cannot be used as evidence against a

codefendant. 32 Accordingly, A-1 moves the Court to strike Texas College's interrogatory

responses as they are improper and incompetent summary judgment evidence against A-1.

11. ANSI A92.6.

Plaintiffs attach a document purported to be ANSI standards without even attempting to

authenticate or otherwise show why this document is in any way relevant or admissible evidence.

A-1 first objects to this document because it was not disclosed or produced in written discovery

pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to mandatory

31 Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 95 (Tex.App.-Dallas 1997, writ denied) (opinion on rehearing); Nebgen v. Minnesota Mining & Mfg. Co., 898 S.W.2d 363, 366 (Tex.App.-San Antonio 1995, writ denied). 32 Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14 Dist.],2004).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T Page22 ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE

APPENDIX 87 Page 3722 exclusion. Further, this docwnent is hearsay and is not certified, authenticated or otherwise

competent, admissible summary-judgment evidence of any type. Evidence that is not properly

authenticated is not competent sununaiy-judgment evidence. See Blanche v. First Nationwide

A1ortg. Corp., 74 S. W.3d 444, 451-52 (Tex. App.-Dallas 2002, no pet.).

12. Affidavit of Burt Thorpe.

A-1 objects to the Affidavit of Burt Thorpe in that Thorpe has not been properly

disclosed as an expert witness. "The affidavit of an expert who is not properly designated may

not be used as evidence in a sununaiy judgment context. Where the expert's testimony will be

excluded at trial on the merits, it will be excluded from a summary judgment proceeding." 33 A-1

incorporates by reference Defendants' Motion to Strike Burt Thorpe and Defendants' Reply to

Plaintiffs' Response to the Motion to Strike Burt Thorpe. A-1 re-urges the arguments contained

therein and requests that the Court sustain A-1 's objection, and disregard and strike the Thorpe

affidavit in total. Furthermore, as set forth in A-1 's, Thorpe's affidavit contains conclusoiy

statements, portrayed as opinions, which are based on incomplete underlying evidence and clear

misstatements or misinterpretation of underlying facts. And based on references and cites to

hearsay with no proper predicate or foundation established.

A-1 further objects to the opinions and conclusions of Burt Thorpe due to the complete

failure to disclose in response to disclosures or interrogatories or to produce the following

documents that for the basis of his opinions:

d. OSHA Federal Regulations: 29 CFR 1910.27- Fixed Ladders,

33 Chau v. Riddle, 212 S.W.3d 699, 704 (Tex. App. - Houston [I st Dist.] 2006) rev'd on other grounds, 254 S.W.3d (Tex. 2008).

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APPENDIX 88 Page 3723

29 CFR 1910.67 - Vehicle Mounted Elevating and Rotating Work Platfonns 29 CFR 1926.453- Aerial Lifts. Scaffolds, 29 CFR 1926.454 - Scaffolds, Training Requirements. e. A "Statement of Best Practices of General Training and Familiarization for Aerial Worlc Platform Equipment" published by ARA, ANSI et. al. g. ANSI A92.6 safety standards for scissor lifts (referred to as "Self Propelled Elevated Work Platfonns") h. The JLG Owner's Manual for model "1930-ES"

A-1 objects to all opinions and statements from Burt Thorpe for the reason that these documents

were not disclosed or produced in written discovery pursuant to Texas Rule of Civil Procedure

193 .6(a) and is therefore subject to mandatory exclusion. Burt Thorpe has no personal

knowledge so his affidavit is otherwise conclusory and is not competent summary judgment

evidence.

A-1 specifically objects to Paragraph Number 5 for the reasons it is filled with opinions

based on the undisclosed documents referenced above and is also replete with legal conclusions.

A-1 also objects to the "summary" of witness testimony as it impermissible hearsay along with

being misleading. A-1 specifically objects to the statements regarding the owner's manual as

Burt Thorpe has not personal knowledge of the events and he specifically misleads the Court

with his conclusion that Brackens testified that there definitely was no manual on board the lift.

For the many reasons above, Burt Thorpe's affidavit should be excluded in its entirety. At a

minimum, the Court should exclude paragraph number 5 from evidence in this matter.

14. Goodwin v. Bluffton College, 2004-0hio-2223, CASE NUMBER 10337, 04-

LW-1747 (3rd).

A-1 objects to and moves to exclude this legal opinion from Ohio as wholly irrelevant

and is not competent summary judgment evidence of any type.

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APPENDIX 89 Page 3724 15. "Statement of Best Practices of General Training and Familiarization for Aerial Work Platform Equipment", February 2010

A-1 first objects to this document because it was not disclosed or produced in written

discovery pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to

mandatory exclusion. Further, this document is irrelevant hearsay and is not certified,

authenticated or otherwise competent, admissible summary-judgment evidence of any type. No

attempt was made to identify this document or submit this document in admissible form.

Evidence that is not properly authenticated is not competent summary-judgment evidence. 34

A-1 's objections to this document should be sustained, any reference to it should excluded in

total and any reference to it should be disregarded by the Court for all purposes.

VIII. PRAYER

Plaintiffs have failed to allege any claim or cause of action for which damages are

recoverable against A-1 as a matter of law. Finally, Plaintiffs have no evidence to support one or

more of the elements of each of their claims against A-1. For the foregoing reasons, Defendant

A-1 requests that this Court sustain all objections to Plaintiffs' improper summary judgment

evidence, dismiss all claims against A-1 and Defendant also prays for such other and further

relief, at law or in equity, to which it may be justly entitled.

34 See Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451-52 (Tex. App.-Dallas 2002, no pet.).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T Page 2!5 ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE

APPENDIX 90 Page 3725

Respectfully submitted,

MARTI'.'", DISIERE,JEFFERSO:\" & WISDOM, L.L.P.

By: Isl Ryan K. Geddie Todd M. Lonergan State Bar No. 12513700 Marie J. Dyer State Bar No. 06317500 Ryan K. Geddie State Bar No. 24055541 Tollway Plaza One 16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248 Telephone: (214) 420-5500 Facsimile: (214) 420-5501 lonergan1t.mdjwlaw.com dyer1t.mdjwlaw.com geddie:a:mdjwlaw .com

ATTORNEYS FOR DEFENDANT MPF INVESTMENTS, LLC d/b/a "A-1 RENT ALL"

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above pleading has been served via e-

service pursuant to Texas Rules of Civil Procedure 21 (a) on this the 13th day of February 2015 to:

Ernesto D. Sigmon Law Offices of Ernesto D. Sigmon 416 West Saulnier Street Houston, Texas 77019

Trey Yarbrough Yarbrough Wilcox Gunter, PLLC 100 East Ferguson, Suite 1015 Tyler, Texas 75702

ls/Ryan K. Geddie Ryan K. Geddie

DEFE:\'DA:\'T MPF l:\'VESTME:\'TS, LLC D/B/A A-I RE:\'T Page26 ALL'S REPLY TO PLAl:\'TIFFS' RESPO:\'SE TO TRADITIO:\'AL A:\'D :\'0-EVIDE:\'CE MOTIO:\' FOR St..:MMARY Jt..:DGME:\'T A:\'D OBJECTIO:\'S TO PLAl:\'TIFFS' St..:MMARY Jt..:DGME:\'T EVIDE:\'CE

APPENDIX 91 Page 3726

Garry L. Rollins

Page I

1 CAUSE NO. 13-3353-A 2 L. ROLLIKS and IN DISTRICT COURT 3 J, ROLLIKS

4 Plaintiffs

5 vs. SMITH COUNTY, TEXAS

6 TEXAS COLLEGE, METHOJIST 7 MPF INVESTMENTS, LLC, d/b/a "A-1 RENT ALL"

8 Defendar.ts 7th JUDIC:AL DISTRICT 9 10

11 DEPOSITION CF 12 EXHIBIT L.

13

14 t_A_ C'UL Y 7 , 2()14

15 16 ORAL AKD VIDEOTAPED DEPOSITION OF GARRY L. ROLL:NS, 17 produced as a witness :nstance of the 18 and duly was taken in the above-styled and :. 9 numbered cause on July 7, 8:44 a.rn. to 3:31 20 p.rn., before Carter, CSR in and the 21 of Texas, reported by at tne law 22 offices of wa:ker, PC, 121 N. Spring Avenue, 23 Tyler, Texas, to the Texas Rules of Civil 24 Procedure and tr.e provisions stated on record or 25 attacr.ed :'1ereto,

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Ga!T)' L. Rollins

Page 202

1 is 2 A. No, did not. 3 Q. And I'm to -- we've been referring 4 it as 14th, I'm just going to refer to that 5 as the accident; is that fair? 6 MR. SIGMO:J: Object to the form. 7 Q. (BY MR. GEDDIE) I ' l l say September 14th 8 incident then. If I say September incident, will I

9 you know I'm referring to? 10 A. Yes. 11 Q. All right. Mr. Rollins, what is your currer.t :2 address? 13 A. my current e-mail address? 14 Q. Yes, sir. 15 A. 16 Q. And is that the same one that you were using · 17 and of 2013? 18 A. : might have used my wife's, I'm net a hundred 19 percent sure. 20 Q. Okay. And I ' l l really just get to the pcint, 21 did you e-mail any of your friends or co-workers 22 about accident or your injury? 23 A. answer that is I can't e-mail anybody 24 because - read. 25 Q. Okay.

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Garry L. Rollins

Page 203

1 A. And in order to e-mail somebody, you got to be 2 ab:e to read to spell. So, my answer to that is no.

Q. Okay. But you do have an e-mail 4 address that you just gave me. 5 A. Yes. 6 Q. And does typically your wife help you 7 back forth -- 8 A. My wife never anybody. 9 Q. Okay. So, I assume by virtue of what you jus: lJ testified to, would it be true to say that you're 11 aole to read any operator manuals for any of the 12 equipment that you use in your job. 13 A. No, I can't read them. 14 Q. So, your roughly 20 years of in 15 the field, I assume you've used lots of 16 different of power and like 17 MR. s=SMON: Objec: :o the form. :..8 A. I've never used any heavy equipment 19 maintenance that I've done. 20 Q. (3Y MR. Have you used handheld 21 equipme::1t? 22 A. Drills, saws, yes. 23 Q. . d ers, G rin t hat sort .::: th.

. ?

24 A. Yes. 25 Q. And a:l :hose times you used that, you were

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Garry L. Rollins

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1 able to any of the manuals; is that 2 true? 3 A. 4 Q. In instar.ces, you rely on people 5 you for to train you on how to use those 6 tools? 7 A. Yes, I did. 8 Q. All rigtt. Mr. Rollins, your residence is in 9 DeSoto, Texas; is true? 10 A. Yes, sir. 11 Q. Is Dallas County? 12 A. Yes. 13 Q. Okay. Sir.ce October of 2013, have you made any 14 trips outside of Dallas County other to be tere 15 today? 16 A. Yes. 17 Q. Ckay. And have you gone? 18 A. San Antonio. 19 Q. Approximately wr.er. did you go to San Antonio? 20 A. Cid you say partially? 21 Q. A9proximately when did you go? 22 A. Oh, I don't maybe two or ttree months 23 ago, not just accurate. 24 Q. And what were you doing in San Antonio? 25 A. Seeing a

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[5] employer's specific instruction for employee to clean up oily liquid spill in restrooms was not basis for creating third exception to general “no duty” rule; and

[6] employee did not have to show that employer engaged in contemporaneously negligent activity in order to show that employer breached duty to provide employee with necessary instrumentalities to perform job.

Certified question answered.

Synopsis Background: Employee filed suit against nonsubscribing employer for injuries sustained in slip and fall while cleaning West Headnotes (30)

oily liquid spill in employer's restrooms, based on claims for negligence, gross negligence, and premises liability. Upon removal, the United States District Court for the Northern [1] Labor and Employment District of Texas, 2012 WL 2795674, entered summary Dangers or defects known to employee judgment for employer, and employee appealed. The Court of Labor and Employment Appeals, 731 F.3d 418, affirmed grant of summary judgment Obvious dangers on negligence claims, but reversed summary judgment on Neither the obviousness of a danger nor premises liability claims, and certified question seeking an employee's awareness of it eliminates an clarification of Texas premises liability law.

employer's duty to provide a safe workplace; that duty always exists.

Holdings: The Supreme Court, Boyd, J., held that: Cases that cite this headnote

[1] generally, an employer does not have a duty to warn [2] Negligence employees of dangers that are open and obvious or already Who are invitees known to the employee, overruling Sears, Roebuck & Co. v. An “invitee”, for the purposes of establishing a Robinson, 154 Tex. 336, 280 S.W.2d 238; landowner's duty of care, is one who enters the property of another with the owner's knowledge [2] “criminal activity” exception to general “no duty” rule and for the mutual benefit of both. applied if risk resulted from third party's criminal conduct for which employer should have anticipated that harm would Cases that cite this headnote occur, despite employee's knowledge of risks;

[3] Labor and Employment [3] exception to general “no duty” rule applied if it was Nature and Scope of Duty Owed by necessary for employee to use dangerous premises and Employer employer should have anticipated that employee was unable to take measures to avoid risk, despite awareness of risk; While an employer's liability for an employee's injury may differ from that of other landowners [4] in event either exception to “no duty” rule applied, due to the statutory waiver of its defenses, its Texas Workers' Compensation Act prevented nonsubscribing premises-liability duty is the same as that owed employer from relying on employee's awareness of risk as by landowners to invitees generally. Tex. Labor defense; Code Ann. § 406.033(a).

Cases that cite this headnote

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[4] Negligence 2 Cases that cite this headnote Care required in general A landowner has a duty to exercise reasonable [9] Negligence care to make the premises safe for invitees, Reasonable or ordinary care in general and the landowner can satisfy this duty by In the premises liability context, a landowner has eliminating the dangerous condition or by no duty to take safety measures beyond those that mitigating the condition so that it is no longer an ordinary, reasonable landowner would take.

unreasonably dangerous.

Cases that cite this headnote Cases that cite this headnote

[10] Labor and Employment [5] Labor and Employment Dangers from extraneous sources Dangers or defects known to employee “Criminal activity” exception to general rule that Labor and Employment employer owed no duty to warn employee of Obvious dangers unreasonably dangerous condition of property Generally, an employer does not have a duty that was open and obvious applied, so as to to warn employees of dangers that are open impose liability on employer for employee's and obvious or already known to the employee; injury, if risk resulted from third party's overruling Sears, Roebuck & Co. v. Robinson, criminal conduct for which employer should 154 Tex. 336, 280 S.W.2d 238. have anticipated that harm would occur, despite employee's knowledge of risks.

Cases that cite this headnote Cases that cite this headnote [6] Negligence Care required in general [11] Negligence Ordinarily, the landowner need not both Duty to warn make reasonably safe and warn invitees about Negligence an unreasonably dangerous condition of the Protection against acts of third persons property, and the landowner can satisfy its duty generally to the invitee by providing an adequate warning An exception to the general rule that a even if the unreasonably dangerous condition landowner has no duty to warn an invitee remains.

of unreasonably dangerous conditions that are 1 Cases that cite this headnote obvious or known to the invitee, known as the “criminal activity” exception, applies in cases involving dangers resulting from a third party's [7] Negligence criminal conduct in which the landowner should Care required in general have anticipated that the harm would occur, A landowner's duty to invitees is not absolute. despite the invitee's knowledge of the risks;

in such cases, the invitee's appreciation of the Cases that cite this headnote danger remains relevant to the landowner's proportionate-responsibility defenses, but it does [8] Negligence not relieve the landowner of its duty to take Reasonable or ordinary care in general reasonable steps to make the premises safe.

A landowner's premises-liability duties, like its Cases that cite this headnote negligence duties, are limited to a duty to exercise ordinary, reasonable care.

[12] Negligence

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Duty to warn invitee of an unreasonably dangerous condition Negligence that is open and obvious applies, the invitee's Care required in general awareness of the risk does not relieve the landowner's duty to make the premises safe, but An exception to the general rule that a landowner it remains relevant to the issue of proportionate owes an invitee no duty to warn of an responsibility, unless that defense is legally unreasonable dangerous condition that is open unavailable. Restatement (Second) of Torts § and obvious, known as the “necessary use”

361.

exception, arises when the facts demonstrate that (1) it was necessary that the invitee use Cases that cite this headnote the unreasonably dangerous premises, and (2) the landowner should have anticipated that the invitee was unable to avoid the unreasonable [16] Negligence risks despite the invitee's awareness of them. Duty as question of fact or law generally Restatement (Second) of Torts § 361. Whether a duty exists is a question of law for the court, and if no duty exists, a jury cannot impose Cases that cite this headnote a duty anyway.

Cases that cite this headnote [13] Negligence Buildings and structures One's conduct after he is possessed of full [17] Negligence knowledge of a dangerous condition, under As Grounds for Apportionment; the circumstances, may be justified or deemed Comparative Negligence Doctrine negligent depending upon such things as the Negligence plaintiff's status, the nature of the structure, the Effect of comparative negligence urgency or lack of it for attempting to reach Negligence a destination, the availability of an alternative, Effect of others' fault; comparative one's familiarity or lack of it, the degree and negligence seriousness of the danger, the availability of aid Negligence from others, the kind and extent of a warning, and Assumption of risk the precautions taken under the circumstances by Although the common law affirmative defenses the plaintiff.

of assumption of the risk and contributory Cases that cite this headnote negligence no longer exist under Texas law, the underlying concepts remain relevant under Texas's proportionate-responsibility statute; in [14] Negligence other words, although these are no longer Open and obvious dangers affirmative defenses that act as an absolute bar Not every open and obvious condition of danger to recovery, they remain defensive issues on on the land precludes recovery. which defendants, not plaintiffs, bear the burden of proof. Tex. Civ. Prac. & Rem. Code Ann. § Cases that cite this headnote 33.001.

[15] Negligence Cases that cite this headnote Duty to warn Negligence [18] Labor and Employment Care required in general Dangers or defects known to employee When the necessary-use exception to the general Labor and Employment rule that a landowner owes no duty to warn an Obvious dangers

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Workers' Compensation Tex. Labor Code Ann. § 406.033(a); Tex. Civ.

Defenses; Abrogation or Modification of Prac. & Rem. Code Ann. § 33.001. Common-Law Defenses Cases that cite this headnote An exception to the general rule that an employer owes no duty to warn or train employees with respect to dangers that are commonly known [20] Workers' Compensation or already appreciated by the employee exists, Defenses; Abrogation or Modification of and a non-subscribing employer owes such a Common-Law Defenses duty, despite the obviousness or employee's Workers' Compensation appreciation of a danger, because, despite the Reduction of damages for contributory awareness of the danger, it is necessary that negligence; comparative negligence the employee use the dangerous premises and The Texas Workers' Compensation Act's waiver the employer should anticipate that the employee of an employer's defenses to liability under is unable to take measures to avoid the risk;

the proportionate responsibility statute prohibits in such cases, the employer cannot rely on the a nonsubscribing employer from relying on fact that the risk was obvious and known to the an employee's assumption of the risk or employee to argue that the employee bears some contributory negligence. Tex. Labor Code Ann.

portion of the responsibility for his own injuries, § 406.033(a)(1), (2); Tex. Civ. Prac. & Rem.

because the Texas Workers' Compensation Act Code Ann. § 33.001.

waives those defenses. Tex. Labor Code Ann. § 406.033(a); Restatement (Second) of Torts § Cases that cite this headnote 361.

Cases that cite this headnote [21] Workers' Compensation Defenses; Abrogation or Modification of Common-Law Defenses [19] Labor and Employment In cases in which the criminal-activity or Dangers or defects known to employee necessary-use exceptions to the general rule that Workers' Compensation an employer owes no duty to warn or train Defenses; Abrogation or Modification of employees with respect to dangers that are Common-Law Defenses commonly known or already appreciated by the Workers' Compensation employee apply, and thus, the employer has a Reduction of damages for contributory duty to the employee despite the employee's negligence; comparative negligence awareness of the risk, the Texas Workers' Although an employee's awareness of an Compensation Act will prevent the employer unreasonable risk may be relevant to the defenses from relying on the employee's awareness of the of contributory negligence and the assumption risk as a defense to the employee's claims. Tex. of risk under the proportionate responsibility Labor Code Ann. § 406.033(a)(1), (2); Tex. Civ. statute, the general rule that an employer owes Prac. & Rem. Code Ann. § 33.001; Restatement no duty to warn or train employees with respect (Second) of Torts § 361. to dangers that are commonly known or already appreciated by the employee may permit an Cases that cite this headnote employer to avoid liability despite the waiver of those defenses under the Texas Workers' [22] Labor and Employment Compensation Act; however, it does so not Dangers or defects known to employee by undermining the Legislature's prerogative to Labor and Employment determine when defenses may or may not apply, Obvious dangers but by fulfilling the court's role to determine Nonsubscribing employer's specific instruction when a party owes a legal duty to begin with.

for employee to clean up oily liquid spill

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in restrooms of employer's store was not basis for creating exception to general rule 2 Cases that cite this headnote that employer owed no duty to protect or warn employee against unreasonably dangerous [26] Labor and Employment premises condition that was open and obvious or Existence of Duty on Part of Employer otherwise known to employee.

Labor and Employment Cases that cite this headnote Nature and scope of duty owed by employer When the landowner is also an employer and the invitee is also its employee, this relationship [23] Labor and Employment may give rise to additional duties, such as a Working Conditions and Methods of duty to provide necessary equipment, training, or Performing Work supervision.

When an employee's injury results from performing the same character of work that 2 Cases that cite this headnote employees in that position have always done, an employer is not liable if there is no evidence that [27] Negligence the work is unusually precarious.

Nature Cases that cite this headnote Negligence Concurrent causes

[24] Labor and Employment When an injury arises from a premises condition, Kind of Equipment it is often the case that any resulting claim sounds exclusively in premises liability, but that is not Employee did not have to show necessarily the case, because an injury can have that nonsubscribing employer engaged in more than one proximate cause.

contemporaneously negligent activity in order to show that employer breached duty to provide Cases that cite this headnote employee with necessary instrumentalities to perform job of cleaning up oily liquid spill in [28] Labor and Employment restrooms of employer's store, in action against Kind of Equipment employer for injuries sustained in slip-and-fall while cleaning spill. Contemporaneous negligent activity of an employer is not an element of an employee's Cases that cite this headnote claim based on the employer's failure to provide the employee with the necessary [25] Negligence instrumentalities to perform his job; to the Nature contrary, an instrumentalities claim may be founded on nonfeasance or misfeasance, neither Negligence of which is particularly likely to occur Care required in general contemporaneously with a resulting injury to the In a typical premises-liability case, the employee. landowner owes the invitee two duties: a duty to keep the premises reasonably safe and a duty not 1 Cases that cite this headnote to injure the invitee through contemporaneous negligent activity; thus, when a claim does not [29] Labor and Employment result from contemporaneous activity, the invitee Kind of Equipment has no negligent-activity claim, and his claim Because contemporaneous negligent activity by sounds exclusively in premises-liability.

the employer is not necessary to an injured employee's claim that the employer failed to

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provide the employee with the necessary and safe instrumentalities to perform the job, the absence Opinion of contemporaneous activity does not necessarily Justice Boyd delivered the opinion of the Court, in which bar an instrumentalities claim.

Justice Johnson, Justice Guzman, Justice Lehrmann, and 3 Cases that cite this headnote Justice Devine joined, and in which Chief Justice Hecht, Justice Green, Justice Willett, and Justice Brown joined except as to Part IV.

[30] Labor and Employment Nature and scope of duty owed by employer Texas employers have a duty to exercise reasonable care Labor and Employment to provide their employees with a safe place to work. Like Kind of Equipment all others who own or operate land, employers generally may fulfill their premises-liability duties to invitees either Only an employer that has control over the by eliminating any unreasonably dangerous condition or by premises where the employee is injured has adequately warning of the risks. In this case, the employer, a premises-liability duty to the employee, which had opted out of the Texas workers' compensation but the duty to provide necessary and safe system, sought to eliminate the danger, but the employee instrumentalities to perform the job applies to who was responsible for the task was himself injured while employers generally.

doing so. The employer could not have eliminated the danger 2 Cases that cite this headnote without assigning the task to an employee, and the employee concedes that he was fully aware of the risks. Addressing a certified question from the United States Court of Appeals for the Fifth Circuit, 1 we clarify that, under Texas law, *197 ON CERTIFIED QUESTION FROM THE UNITED (1) subject to two limited exceptions, an employer generally STATES COURT OF APPEALS FOR THE FIFTH does not have a duty to warn or protect its employees CIRCUIT. from unreasonably dangerous premises conditions that are open and obvious or known to the employee; and (2) under Attorneys and Law Firms this general rule, the Texas Workers' Compensation Act's (TWCA) waiver of a nonsubscribing employer's common law Matthew Joseph Kita, Attorney at Law, Dallas, for Appellant defenses does not eliminate an employee's burden of proving Randy Austin.

that the employer owed him a duty as an element of a premises Donna C. Peavler, Bryan Kyle Briscoe, The Peavler Group, liability claim. We also conclude that contemporaneous P.C., Grapevine, Mike A. Hatchell, Locke Lord LLP, Austin, negligent activity by the employer is not necessary to an Dale Wainwright, Bracewell & Giuliani, LLP, Austin, employee's instrumentalities claim. Charles R. 'Skip' Watson Jr., Locke Lord LLP, Austin, for Appellee Kroger Texas, L.P.

I.

Deborah J. Race, Ireland Carroll & Kelley, P.C., Tyler, for Amicus Curiae Brookshire Grocery Co., Daryl Flood, Inc. and Quiktrip Corporation. Background

*198 Brian A. Sheguit, The Bassett Firm, Dallas, for Randy Austin fell while mopping a restroom floor at the Amicus Curiae Mission Petroleum Carriers, Inc. Kroger store where he worked in Mesquite, Texas. An oily liquid had leaked through the store's ventilation ducts Harold McCall Jr., San Antonio, Javier Espinoza, The after another Kroger employee power-washed the store's Espinoza Law Firm, PLLC, San Antonio, for Amicus Curiae condenser units, creating spills in both the men's and women's San Antonio Trial Lawyers Association. restrooms. Consistent with Austin's duties as a self-described “floor clean-up person,” Austin's supervisor directed him Peter M. Kelly, Kelly, Durham & Pittard, L.L.P., Houston, to clean the spills. Kroger's safety handbook recommends for Amicus Curiae Texas Trial Lawyers Association.

that employees clean spills using a “Spill Magic” system

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that involves a powdery absorbent product, a broom, and Put differently, does the employee's a dustpan. According to the handbook, using this system awareness of the defect eliminate the reduces the likelihood of a slip-and-fall by 25%. Contrary to employer's duty to maintain a safe the handbook's instruction to store managers, however, the workplace? system was not available at the store that day. Austin thus attempted to clean the liquid with a mop. Austin successfully Id. at 204. cleaned the women's room and then moved to the men's room, where the brownish liquid covered about 80% of the floor. Recognizing the danger that the slippery liquid presented, II. he placed “wet floor” signs around the area and carefully took “baby steps” as he moved throughout the spill. *199 After successfully cleaning 30% to 40% of the spill, Austin The Parties' Arguments slipped in the remaining liquid and fell, fracturing his femur The parties' arguments in this case reflect the significance and dislocating his hip. As a result, he spent nine months in of characterizing the question as involving Kroger's “duty” the hospital and underwent six surgeries, leaving his left leg to its employees. Outside of the employment context, a two inches shorter than his right.

landowner 7 sued for premises *200 liability may rely on an invitee's awareness of the dangerous condition as evidence of Austin's employer, Kroger Texas L.P., had elected not the invitee's own negligence and proportionate responsibility, to subscribe to the Texas workers' compensation system. 2 as a defense to the invitee's claims. See TEX. CIV. PRAC. & Austin sued Kroger in state court, asserting claims for REM. CODEE §§ 33.001–.017 (proportionate responsibility negligence, gross negligence, and premises liability. In statute). And an employer that elects to subscribe to the support of his negligence claim, Austin alleged that Kroger Texas workers' compensation system will not face the kinds had engaged in negligent activities 3 and had failed to of claims that Austin has asserted in this case, because provide a “necessary instrumentality”—specifically, the Spill the TWCA provides the employee's exclusive remedies. See Magic system. 4 Kroger removed the case to federal district TEX. LAB. CODE § 406.033(a); In re Crawford & Co., court, which granted Kroger's motion for summary judgment 458 S.W.3d 920, 923–26 (Tex.2015); Tex. Mut. Ins. Co. v. on all of Austin's claims. The Fifth Circuit Court of Ruttiger, 381 S.W.3d 430 (Tex.2012). But an employer that opts out of the workers' compensation system, as Kroger Appeals affirmed as to Austin's negligent activity 5 and has done here, is prohibited from asserting the employee's gross negligence 6 claims, but reversed and remanded the negligence or assumption of the risk as a defense. TEX. LAB.

necessary-instrumentalities claim because the district court CODE § 406.033(a) (providing that, in an action against had “failed to consider whether ... [that theory] is sufficient to a nonsubscribing employer, “it is not a defense that: (1)

support a stand-alone ordinary negligence claim.” 746 F.3d at the employee was guilty of contributory negligence; (2) the 197. As to Austin's premises-liability claim, the Fifth Circuit employee assumed the risk of injury or death; or (3) the injury found that the “nature and scope” of an employer's duty to or death was caused by the negligence of a fellow employee”).

provide its employees with a safe workplace is “arguably If Austin's awareness and assumption of the risks are relevant unclear” under Texas law “when an employee is aware of here, they can be relevant only to the question of whether the hazard or risk at issue.” Id. at 199. Concluding that “[i]t Kroger owed Austin a duty at all. If Kroger owed Austin is best to leave the resolution of these matters to the good a duty, its breach of that duty would result in liability for all judgment of the highest state court,” the Fifth Circuit certified of Austin's damages, regardless of Austin's awareness of the the following question:

risks or any negligence on Austin's part.

Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas Labor Kroger argues that this Court's recent “trilogy” of employer- Code, can an employee recover against employee tort cases confirms that an employer has no duty a non-subscribing employer for an to warn or protect employees against “hazards that are injury caused by a premises defect of commonly known or already appreciated by the employee.” which he was fully aware but that his See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 job duties required him to remedy? (Tex.2008) (holding employer owed no duty to employee injured while stepping over cart in store's cooler); Jack in

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the Box, Inc. v. Skiles, 221 S.W.3d 566, 568–69 (Tex.2007) (holding employer owed no duty to employee injured while Defining the Premises–Liability Duty climbing over broken lift gate to unload truck); Kroger Co. v. Elwood, 197 S.W.3d 793, 795 (Tex.2006) (holding employer [1] We begin by noting that the Fifth Circuit's alternative owed no duty to employee injured when he placed his hand iteration of its certified question asks, “[D]oes the employee's in car doorjamb while loading customer's groceries into car in awareness of the defect eliminate[s] the employer's duty to sloped parking lot). Because the risk of slipping and falling on maintain a safe workplace?” The answer to that question a wet floor is commonly known and Austin admitted that he is “no.” As Kroger concedes, neither the obviousness of was aware of the wet floor and appreciated the risk, Kroger a danger nor an employee's awareness of it “eliminates” asserts that it had no duty to protect or warn Austin against an employer's duty to “provide a safe workplace.” That that risk. Kroger further argues that this Court's opinions duty always exists, but the question here is whether that in Elwood, Skiles, and Goss demonstrate that, although the duty includes a more specific duty to warn or protect TWCA waives a nonsubscribing employer's defenses, it does employees against obvious or known hazards. We therefore not relieve the employee of the burden of proving that the begin by addressing the specific duties that comprise an employer owed a duty. employer's duty to provide a safe workplace in the context of premises-liability claims. We conclude that, with two Austin contends that Kroger is relying on the old “no- notable exceptions, an employer's premises-liability duty to duty rule,” which this Court abolished in the employment- its employee includes only the duty to protect or warn the law context sixty years ago, see Sears, Roebuck & Co. v. employee against concealed hazards of which the employer Robinson, 154 Tex. 336, 280 S.W.2d 238 (1955), and in all is aware, or reasonably should have been aware, but the landowner-invitee cases nearly forty years ago, see Parker employee is not. We then discuss how these principles operate v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). Under in light of the TWCA's waiver of defenses and our abolition Robinson and Parker, Austin contends, his awareness of the of the no-duty rule in Robinson and Parker. dangerous condition does not affect Kroger's legal duty. Instead, his awareness can be relevant only to whether he was negligent and thus to his proportionate responsibility, A. The Duty to Warn which the TWCA prohibits Kroger from raising as a defense. We endeavor here to answer three questions: (1) whether Thus, according to Austin, Kroger cannot rely on Austin's an employer's premises liability to employees differs from awareness of the danger at all. other landowners' premises liability to invitees; (2) whether a landowner's duty to invitees is a duty to “make safe,” or a duty *201 Reviewing the parties' arguments, the Fifth Circuit to “warn,” or a duty to “make safe or warn”; and (3) whether concluded that the cases on which the parties rely represent an invitee's knowledge of a dangerous condition goes to the “arguably conflicting Texas Supreme Court precedent.” 746 “duty” element of the plaintiff's case or to the defendant's F.3d at 197. We accepted the certified question as an proportionate-responsibility defenses or to both, especially opportunity to provide greater certainty in this important area in light of the TWCA's waiver of defenses. We conclude of the law. Reviewing this Court's precedents, we endeavor that (1) employers owe employees the same premises-liability to clarify where helpful and resolve apparent conflicts where duty that other landowners owe to their invitees; (2) in most needed. We do so mindful that our decisions regarding cases, the landowner's premises-liability duty is to either common law duties involve “complex considerations of make safe or warn invitees of concealed dangers of which public policy including ‘social, economic, and political the landowner is or should be aware but the invitee is not; questions and their application to the facts at hand.’ ” and (3) in most cases, a landowner owes no duty to protect an Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 410 invitee against a dangerous condition that is open and obvious (Tex.2009) (quoting Humble Sand & Gravel, Inc. v. Gomez, or known to the invitee, and the TWCA's waiver of defenses 146 S.W.3d 170, 182 (Tex.2004)). does not relieve a plaintiff of the burden of proving that the defendant owed a duty.

III. 1. Employers and Other Landowners

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[2] We first clarify and confirm that, generally, 8 an 412; Goss, 262 S.W.3d at 794; Gen. Elec. Co. v. Moritz, employer has the same *202 premises-liability duty to its 257 S.W.3d 211, 216 (Tex.2008); Cent. Ready Mix Concrete employees as other landowners have to invitees on their Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); Shell Oil premises. An invitee is “one who enters the property of Co. v. Khan, 138 S.W.3d 288, 295 (Tex.2004). The Court another ‘with the owner's knowledge and for the mutual has struggled to characterize the rule, however, in cases in benefit of both.’ ” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d which the landowner's provision of a warning or the invitee's 1, 3 (Tex.1996) (quoting Rosas v. Buddies Food Store, 518 knowledge of the risk was not *203 sufficient to make the S.W.2d 534, 536 (Tex.1975)). Employees working at their premises reasonably safe. Today we clarify that these cases employers' premises fit this description, and this Court has present discrete exceptions to the general rule. stated that an employer's duty to make its premises reasonably safe for employees is “in all material respects ... identical” to a landowner's duty to make its premises reasonably a. The General Rule safe for invitees. Robinson, 280 S.W.2d at 240; see also Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex.1963) [5] [6] Applying the general rule, the Court has repeatedly (holding that employee was invitee, rather than licensee, described a landowner's duty as a duty to make safe or warn while working at his employer's premises). As mentioned, the against any concealed, unreasonably dangerous conditions Court abolished the no-duty rule only for employer-employee of which the landowner is, or reasonably should be, aware cases in Robinson, 280 S.W.2d at 240, but later did the but the invitee is not. See, e.g., Escoto, 288 S.W.3d at 412; same for all other premises-liability cases in Parker, 565 Goss, 262 S.W.3d at 794; Moritz, 257 S.W.3d at 216; Islas, S.W.2d at 512. Other than that brief rift, the Court has treated 228 S.W.3d at 651; Khan, 138 S.W.3d at 295. Ordinarily, employers as having the same premises-liability duties as all the landowner need not do both, and can satisfy its duty other landowners, and we confirm that approach today. by providing an adequate warning even if the unreasonably dangerous condition remains. See Williams, 940 S.W.2d at [3] In answering the Fifth Circuit's certified question, we 584 (holding that landowner “had a duty to warn or make thus consider the premises-liability duties of landowners to safe, but not both”); see also TXI Operations, L.P. v. Perry, invitees generally. The certified question's reference to “a 278 S.W.3d 763, 765 (Tex.2009) (observing that defendant nonsubcribing employer” and to the TWCA's waiver of a could have satisfied its duty by either repairing pothole nonsubscriber's defenses, therefore, has no bearing on our or providing adequate warning sign). This general rule is analysis of an employer's duty. While an employer's liability consistent with the reasons for imposing a duty on landowners may differ from that of other landowners due to the statutory in the first place. The landowner is typically in a better waiver of its defenses, see Kroger Co. v. Keng, 23 S.W.3d position than the invitee to be aware of hidden hazards on 347, 352 (Tex.2000), its premises-liability duty is the same as the premises, so the law mandates that the landowner take that owed by landowners to invitees generally. precautions to protect invitees against such hazards, to the extent the landowner is or should be aware of them. See Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex.1973)

2. The Duty to Make Safe or Warn (discussing landowner's “superior position to know of or [4] At different times, this Court has described a landowner's discover hidden dangerous conditions on his premises”); premises-liability duty to invitees as a duty to make see also RESTATEMENT (THIRD) OF TORTS: LIAB. reasonably safe, 9 a duty to warn, 10 or a duty to make safe FOR PHYSICAL & EMOTIONAL HARM § 51 cmt. t or warn. 11 While potentially confusing, these descriptions (2012) (addressing landowner's “superior knowledge of the are not at odds with each other. A landowner has a duty dangerous condition”). to exercise reasonable care to make the premises safe for invitees. Obviously, the landowner can satisfy this duty by When the condition is open and obvious or known to eliminating the dangerous condition or by mitigating the the invitee, however, the landowner is not in a better condition so that it is no longer unreasonably dangerous. position to discover it. When invitees are aware of dangerous See State v. Williams, 940 S.W.2d 583, 584 (Tex.1996). But premises conditions—whether because the danger is obvious the Court has repeatedly recognized that, in most cases, the or because the landowner provided an adequate warning landowner can also satisfy its duty by providing an adequate —the condition will, in most cases, no longer pose an warning of the danger. See, e.g., Escoto, 288 S.W.3d at unreasonable risk because the law presumes that invitees

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will take reasonable measures to protect themselves against We use the qualifiers “generally,” “ordinarily,” and “in most known risks, which may include a decision not to accept cases” while discussing the general rule because the Court the invitation to enter onto the landowner's premises. has struggled at times with cases in which it concluded that See, e.g., RESTATEMENT (THIRD) OF TORTS: LIAB. the provision of a warning or the obvious nature of the FOR PHYSICAL & EMOTIONAL HARM § 51 cmt. danger was not sufficient to make the premises reasonably a (2012) (observing that reasonable care “only requires safe as a matter of law. See, e.g., Del Lago, 307 S.W.3d at attending to the foreseeable risks in light of the then-extant 774 (stating that “[i]n some circumstances, no warning can environment, including foreseeable precautions by others”); suffice as reasonably prudent action to reduce or remove an RESTATEMENT (SECOND) OF TORTSS § 343 cmt. b unreasonable risk”). Thus, in some cases, the Court held that (1965) (observing that landowner must “give such warning an otherwise “adequate” warning or an invitee's knowledge that the [invitee] may decide intelligently whether or not of the danger was not sufficient to discharge the landowner's to accept the invitation, or may protect himself against the duty. See Parker, 565 S.W.2d at 512; Robinson, 280 S.W.2d danger if he does accept it”). This is why the Court has at 240. But in most cases, the Court has continued to apply the typically characterized the landowner's duty as a duty to make general rule. See Goss, 262 S.W.3d at 795; Skiles, 221 S.W.3d safe or warn of unreasonably dangerous conditions that are at 568–69; Elwood, 197 S.W.3d at 795. This has resulted in not open and obvious or otherwise known to the invitee. See, the “arguable conflict in Texas law” that led the Fifth Circuit e.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; to certify its question to us in this case. 746 F.3d at 204. Moritz, 257 S.W.3d at 216; Islas, 228 S.W.3d at 651; Khan, 138 S.W.3d at 295. Today we reaffirm the general rule while clarifying and confirming the existence of two exceptions that the Court has [7] [8] [9] This general rule is also consistent with the recognized when the landowner's provision of an otherwise Court's recognition that a landowner's duty to invitees is adequate warning is legally insufficient to make the premises not absolute. A landowner “is not an insurer of [a] visitor's reasonably safe. The first exception may arise when a safety.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, dangerous condition results from the foreseeable criminal 769 (Tex.2010) (quoting RESTATEMENT (SECOND) OF activity of third parties. We will refer to this as the criminal- TORTS § 344 cmt. f). Instead, a landowner's premises- activity exception. The second exception may arise when liability duties, like its negligence duties, are limited to a the invitee necessarily must use the unreasonably dangerous duty to exercise ordinary, reasonable care. *204 Elwood, premises, and despite the invitee's awareness and appreciation 197 S.W.3d at 794 (“An employer has a duty to use ordinary of the dangers, the invitee is incapable of taking precautions care in providing a safe workplace.... However, an employer that will adequately reduce the risk. We will refer to this as the is not an insurer of its employees' safety.”). 12 Thus, a necessary-use exception. In cases involving these exceptions, defendant has “no duty” to take safety measures beyond those we have held that the obviousness of the danger and the that an ordinary, reasonable landowner would take. What invitee's appreciation of it may be relevant to a landowner's a reasonable landowner would do is often a jury question, defense based on the invitee's proportionate responsibility, but sometimes it is not. The Court has recognized that, in but they do not relieve the landowner of its duty to make the most circumstances, a landowner who provides an adequate premises reasonably safe. warning acts reasonably as a matter of law, and since there is no need to warn against obvious or known dangers, a landowner generally has no duty to warn of hazards that are (1) The Criminal–Activity Exception open and obvious or known to the invitee. See, e.g., Goss, 262 S.W.3d at 795; Moritz, 257 S.W.3d at 218; Islas, 228 S.W.3d [10] The seminal case in which this Court defined a at 651; Skiles, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at landowner's duty with regard to protecting invitees against 795; Khan, 138 S.W.3d at 295; Coastal Marine Serv. of Tex., third *205 parties' criminal activities is Timberwalk Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex.1999). Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.1998). In that case, a tenant sued her apartment complex after she was sexually assaulted in her apartment, asserting that the complex's inadequate security was a proximate cause b. Exceptions to the General Rule of her assault. Id. at 751. After holding that the claims sounded in premises liability rather than negligent activity, id.

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at 753, the Court described the contours of the specific duty stated that the resort's position would “revive the doctrine a landowner owes with respect to third-party criminal acts: of voluntary assumption of the risk as a complete bar to recovery” and would “revive the no-duty rule” by holding As a rule, “a person has no legal duty to protect another “as a matter of law that an invitee's decision not *206 from the criminal acts of a third person.” An exception to remove himself from a known and dangerous premises is that “[o]ne who controls ... premises does have a duty condition bars any recovery against the landowner.” Id. at to use ordinary care to protect invitees from criminal 772–73. This language at least arguably indicates that the acts of third parties if he knows or has reason to know Court was applying a general rule when it refused to hold of an unreasonable and foreseeable risk of harm to the that the plaintiff's knowledge of the risks eliminated the invitee.” ... landowner's duty to make the premises reasonably safe. But the Court expressly clarified that it was not announcing a ....

general rule. Id. at 770 (“We do not announce a general rule ... A duty exists only when the risk of criminal conduct is today.”). Instead, the Court made it clear that its decision was so great that it is both unreasonable and foreseeable. based on the fact that the plaintiff's awareness of the risk was not sufficient in that case to enable him to avoid the harm.

Id. at 756 (quoting Walker v. Harris, 924 S.W.2d 375, Specifically, in response to the dissent's reliance on section 377 (Tex.1996)). In addressing this duty, the Court did 343A(1) of the Restatement (Second) of Torts, which posits not consider or mention the obviousness or the plaintiff's that a landowner cannot be liable for harm resulting from awareness of the alleged risk, or whether the landowner could “known or obvious” conditions, the Court pointed out section fulfill its duty by providing an adequate warning. See id. Nor 343A concludes by saying “unless the [landowner] should did the Court do so when describing the Timberwalk duty in anticipate the harm despite such knowledge or obviousness.” cases that followed it. See, e.g., W. Invs., Inc. v. Urena, 162 Id. at 774. Finding that this language “anticipate[s] today's S.W.3d 547 (Tex.2005); 13 Mellon Mortg. Co. v. Holder, 5 uncommon facts,” the Court concluded that the resort “may still be liable” because it “had reason to expect harm S.W.3d 654 (Tex.1999). 14 notwithstanding [the plaintiff's] awareness of the risk.” Id. The Court thus expressly confirmed that its “narrow and fact-

More recently, when the plaintiff in Del Lago argued that specific” holding applied only when the landowner “should unreasonably dangerous conditions resulting from inadequate anticipate the harm despite such knowledge or obviousness,”

security at a bar proximately caused his injuries when a fight and that it was “not hold[ing] today that a landowner can broke out, the Court again applied the Timberwalk duty:

never avoid liability as a matter of law in cases of open and Generally, a premises owner has no duty to protect invitees obvious dangers.” Id. from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know [11] Clarifying the arguable conflict in the Court's of a risk of harm to invitees that is unreasonable and precedents, we hold that Del Lago represents an exception foreseeable.... to the general rule that a landowner has no duty to warn an invitee of unreasonably dangerous conditions that are obvious .... or known to the invitee, which exception applies in cases involving dangers resulting from a third party's criminal ... We hold that Del Lago had a duty to protect Smith conduct in which the landowner should have anticipated because Del Lago had actual and direct knowledge that that the harm would occur despite the invitee's knowledge a violent brawl was imminent between drunk, belligerent of the risks. In such cases, the invitee's appreciation of the patrons and had ample time and means to defuse the danger remains relevant to the landowner's proportionatesituation .

responsibility defenses, see Del Lago, 307 S.W.3d at 772– Del Lago, 307 S.W.3d at 767–69. 73, but it does not relieve the landowner of its duty to take reasonable steps to make the premises safe. See Eagle The Court rejected the resort owner's argument that it had Trucking Co. v. Tex. Bitulithic Co., 612 S.W.2d 503, 507 no duty to protect the plaintiff from the risks because the (Tex.1981). danger was as obvious and known to the plaintiff as it was to the resort owner. Id. at 772. In doing so, the Court

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logic, has already undermined the no-duty rule” due to “[t]he inextricable mixing” of a defendant's duty and “a plaintiff's (2) The Necessary–Use Exception burden to negate his own knowledge and appreciation” with A second exception to the general rule arises from the Court's “voluntary assumption of risk”; (3) “[t]he legislature by decision in Parker, which predates the Court's later decisions its adoption in 1973 of the comparative negligence statute restating and applying the general rule. In Parker, the plaintiff evidenced a clear policy purpose to apportion negligence fell while descending an improperly lighted staircase in a according to the fault of the actors”; and (4) “[t]he no-duty common area that she had to use to exit her sister's apartment. doctrine is so elusive that precedent is non-predictive and 565 S.W.2d at 513. Because the plaintiff was aware of the unhelpful.” Id. at 517–18. The Court thus concluded that “[a] darkness and the dangers it presented, she took measures to plaintiff's knowledge, whether it is derived from a warning or mitigate the risks by having her sister hold a flashlight to from the facts, even if the facts display the danger openly and illuminate the stairs and by taking careful steps while holding obviously, is a matter that bears upon his own negligence; it on to the handrail. Id. at 514. Nevertheless, because the stairs should not affect the defendant's duty.” Id. at 521. included narrow, unevenly distributed steps and turned such that the flashlight could not illuminate all the way down, the [12] [13] As we have mentioned, despite this rather clear measures were insufficient and the plaintiff fell. Id. The Court language, the Court has since repeatedly restated and applied adopted in that case the specific and narrow duty recognized the general no-duty rule in the landowner-invitee context, in sections 360 and 361 of the Restatement (Second) of Torts. without overruling the decision in Parker. See, e.g., Escoto, Id. at 515–16. Under section 361, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Moritz, 257 S.W.3d at 216; Islas, 228 S.W.3d at 651; Khan, 138 S.W.3d [a] possessor of land who leases a part at 295. To the extent that these decisions conflict with Parker, thereof and retains in his own control we think the better approach is to follow our more recent any other part which is necessary to precedent and recognize the Parker rule as an exception that the safe use of the leased part, is applies when the facts demonstrate that (1) it was necessary subject to liability to his lessee and that the invitee use the unreasonably dangerous premises and others lawfully upon the land with the (2) the landowner should have anticipated that the invitee was consent of the lessee or a sublessee for unable to avoid the unreasonable risks despite the invitee's physical harm caused by a dangerous awareness of them. As the Court observed in Parker: condition upon *207 that part of the land retained in the lessor's control, if One's conduct after he is possessed the lessor by the exercise of reasonable of full knowledge, under the care (a) could have discovered the circumstances may be justified or condition and the risk involved, and deemed negligent depending upon (b) could have made the condition such things as the plaintiff's status, the safe. nature of the structure, the urgency or lack of it for attempting to reach Id. at 515 (quoting RESTATEMENT (SECOND) OF TORTS a destination, the availability of an § 361). alternative, one's familiarity or lack of it with the way, the degree In addition, however, the Court abolished the “no-duty rule” and seriousness of the danger, the in all landowner-invitee cases, using language that is difficult availability of aid from others, the to construe as anything other than the adoption of a new nature and degree of the darkness, general rule. Id. at 517 (“We now expressly abolish the so- the kind and extent of a warning, called no-duty concept in this case and ... ‘henceforth in and the precautions taken under the the trial of all actions based on negligence....’ ”) (quoting circumstances by a plaintiff in walking Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex.1975)). down the passageway. The Court enumerated its reasons for doing so, including its observations that (1) the no-duty rule “has contributed 565 S.W.2d at 520. Although the Parker Court concluded that confusion which has defied the efforts of our best scholars these “are matters which bear upon ‘the reasonableness of an at explanation and application”; (2) the Court, “based on actor's conduct in confronting a risk ... under principles of

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contributory negligence,’ ” id. (quoting Farley, 529 S.W.2d at 758), the Court's subsequent decisions have repeatedly a. Parker and Del Lago recognized that, despite Parker, a landowner generally has no duty to protect or warn an invitee against unreasonable The Court's abolition of the no-duty rule in Parker was dangers that are open and obvious or otherwise known to the aimed at correcting a common misapplication of the burdens invitee. of proof in premises-liability cases. Some confusion had arisen because, while plaintiffs bear the burden of proving [14] [15] *208 Resolving the Court's “arguably the existence of a duty, certain “no duty” arguments bleed conflicting ... precedent,” 746 F.3d at 197, we hold that into defensive issues—such as assumption of the risk and Parker represents a second exception to the general rule. contributory negligence—on which defendants bear the Although, as the Parker Court noted, “not every ‘open and burden of proof. See Moritz, 257 S.W.3d at 216–18; Dixon, obvious' condition of danger ... precludes recovery,” 565 682 S.W.2d at 533–34; McKee v. Patterson, 153 Tex. 517, S.W.2d at 520, the Court's more recent decisions confirm that 271 S.W.2d 391, 393 (1954), abrogated by Parker, 565 some do, as a matter of law. Although “[d]anger is relative, S.W.2d at 516–19. It was this confusion that led the Court to and a person of ordinary care may incur some hazards,” id. adopt the no-duty rule: the Court's more-recently reaffirmed general rule confirms that landowners have no duty to protect or warn such persons There are two legal theories, wholly when they are aware of the risks and could have avoided aside from the plaintiff's own them. We thus reaffirm the general rule, but retain Parker negligence, for denying liability in a as an example of an exception that recognizes a landowner's suit against an owner or occupier of duty to make its premises safe when, despite an awareness land brought by an invitee for injuries of the risks, it is necessary that the invitee use the dangerous growing out of open and obvious premises and the landowner should have anticipated that the dangers thereon. One rests on the invitee is unable to take measures to avoid the risk. When this judicial concept that there is no breach necessary-use exception applies, like the criminal-activity of any duty the landowner owes to exception, the plaintiff's awareness of the risk does not relieve his invitees. The other arises out of the landowner's duty to make the premises safe, but it remains the doctrine of volenti non fit injuria relevant to the issue of proportionate responsibility unless that —voluntary encountering of risk— defense is legally unavailable. Id. at 520–21. which is regarded as a defense to all negligence actions.... The failure of counsel to segregate and separately 3. Robinson and the TWCA's waiver of defenses preserve all of these questions in This is not the first time we have attempted to clarify and pleadings in the trial courts and in resolve the apparent conflict between Robinson, Parker, and briefs in the appellate courts, thereby our more recent decisions upholding the general rule. Here, offering the appellate *209 courts Austin argues that it cannot be that Kroger owes him “no no alternative except to decide the duty” with respect to the slip-and-fall risk because this Court cases before them on the questions has abolished the “no-duty rule.” See Del Lago, 307 S.W.3d presented, and the tendency of the at 772; Parker, 565 S.W.2d at 514–15; Robinson, 280 S.W.2d appellate courts to group them in at 241–42. We previously rejected this argument, however, analyzing the evidence, or to seek the and attempted to clarify our precedent on multiple occasions. most obvious and simplest solution, See, e.g., Moritz, 257 S.W.3d at 216–18; Dixon v. Van Waters has led to much confusion in the & Rogers, 682 S.W.2d 533, 533–34 (Tex.1984). We attempt decided cases. In greatly similar fact to provide further clarification here, especially as it relates to situations some are decided on the Robinson and the TWCA's defense waivers, and we do so by basis of no breach of duty by the beginning with a more thorough discussion of Parker, Del defendant, some on the basis of Lago, and the “no-duty rule.” voluntary encountering of risk by the plaintiff, some on the basis of the contributory negligence of the

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plaintiff, and some on the basis of two or more of these factors without Moritz, 257 S.W.3d at 216 (quoting Dixon, 682 S.W.2d at distinction between them. This has 533–34). Whether “a duty exists is a question of law for led to what appears to be conflicting the court,” and if no duty exists, “a jury cannot impose a results. duty anyway on the theory that Parker abolished all no-duty defenses.” Id. at 217. 15 McKee, 271 S.W.2d at 393.

[17] Although the common law affirmative defenses of Further contributing to the confusion was the common assumption of the risk 16 and contributory negligence no law's treatment of assumption of the risk and contributory longer *210 exist under Texas law, the underlying concepts negligence as absolute bars to recovery. See id.; Dugger v.

remain relevant under Texas's proportionate-responsibility Arredondo, 408 S.W.3d 825, 830 (Tex.2013). Whether the statute. See Del Lago, 307 S.W.3d at 772 (discussing obviousness of a risk meant that the defendant owed no duty replacement of contributory negligence by proportionateor that the plaintiff had assumed the risk or that the plaintiff bore some responsibility for his injury, the result was the responsibility statute). 17 The same facts that tended to prove same: the plaintiff could not recover at all. This made it assumption of the risk or contributory negligence may now be difficult for Texas courts to distinguish between these three used to diminish a plaintiff's recovery by demonstrating that concepts, see Parker, 565 S.W.2d at 516, and resulted in an the plaintiff bore some portion of the responsibility for his “oddity that had uniquely developed in Texas,” the placing own injuries, or even to preclude the plaintiff from recovering of an absolute burden on the plaintiff “to negate his own at all by demonstrating that the plaintiff bore more than 50% knowledge and his own appreciation of a danger” as part of of the responsibility for his own injuries. See TEX. CIV. his case-in-chief. Moritz, 257 S.W.3d at 216 (quoting Dixon, PRAC. & REM. CODEE §§ 33.001, .003. In other words, 682 S.W.2d at 533). although these are no longer affirmative defenses that act as an absolute bar to recovery, they remain defensive issues on [16] It is this “oddity” that the Court has referred to as which defendants, not plaintiffs, bear the burden of proof. the no-duty rule—a rule that required plaintiffs to negate their own knowledge of the risk in all premises-liability cases, regardless of whether that fact was relevant to the b. Robinson existence of a duty or to defenses like assumption of the risk and contributory negligence. See id.; see also Parker, 565 Even before the Court abolished the no-duty rule in Parker, S.W.2d at 517. When the Court abrogated the no-duty rule, it the Court rejected it in nonsubscriber employment cases in ensured that the burden of proving these affirmative defenses Robinson, 280 S.W.2d at 239–40. But Robinson's rejection remained on defendants, but it did not relieve plaintiffs of the of the no-duty rule did more than Parker's because the burden to prove the existence of a duty as an element of the TWCA prohibits nonsubscribing employers from relying plaintiff's claim. See Moritz, 257 S.W.3d at 216; Dixon, 682 on defenses like assumption of the risk, contributory S.W.2d at 533; Parker, 565 S.W.2d at 516–17. As the Court negligence, or proportionate responsibility. TEX. LAB. has twice clarified: CODE § 406.033(a). Thus, while the abolition of the no-

duty rule in other tort actions meant only that the burden The rule [in Parker] that the plaintiff of proving these defensive issues shifted back to defendants, does not have the burden to obtain the abolition of the no-duty rule in nonsubscribing-employer findings that disprove his own fault cases meant that, once the plaintiff proved a duty, the does not, however, mean that a defendant could not rely on the plaintiff's awareness of the plaintiff is excused from proving the danger at all. See Robinson, 280 S.W.2d at 239–40. defendant had a duty and breached it. A plaintiff does not have the burden [18] Just as Parker's abolition of the no-duty rule should not to prove and obtain findings that he impact typical premises-liability cases where the landowner's lacked knowledge and appreciation of only duty is to warn of concealed dangers, Robinson's a danger; he must, however, prove the abolition of the no-duty rule should not impact typical defendant had a duty and breached it. nonsubscribing-employer cases where the employer owes no duty to warn or train employees with respect to dangers

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that are commonly known or already appreciated by the [19] As discussed above, the TWCA prohibits employee. See Escoto, 288 S.W.3d at 413; Goss, 262 S.W.3d nonsubscribing employers from raising the defenses of at 794– 95; Skiles, 221 S.W.3d at 568; Elwood, 197 S.W.3d contributory negligence and assumption of the risk, which at 794–95. Instead, the Court's abolition of the no-duty rule are now subsumed under the proportionate-responsibility should play a role only when an exception to the general rule statute. TEX. LAB. CODE § 406.033(a)(1), (2); Keng, 23 applies—that is, when the nonsubscribing employer owes a S.W.3d at 349–52. Although an employee's awareness of duty despite the obviousness or employee's appreciation of a an unreasonable risk may be relevant to such defenses, the danger because, despite the awareness of the danger, it is Court's general rule that we confirm today may permit an necessary that the employee use the dangerous premises and employer to avoid liability despite the TWCA's waiver of the employer should anticipate that the employee is unable to those defenses. It does so, however, not by undermining the take measures to avoid the risk. In such cases, the employer Legislature's prerogative to determine when defenses may or cannot rely on the fact that the risk was obvious and known to may not apply, but by fulfilling this Court's role to determine the employee to argue that the employee bears some portion when a party owes a legal duty to begin with. See Moritz, 257 of the responsibility for his own injuries, because the TWCA S.W.3d at 217 (“Whether ... a duty exists is a question of law waives those defenses. Compare Del Lago, 307 S.W.3d at for the court; it is not for the jury to decide under comparative 772–73; Parker, 565 S.W.2d at 520, with TEX. LAB. CODE negligence or anything else.”). § 406.033(a); Keng, 23 S.W.3d at 352.

[20] [21] Moreover, the general rule does not render the *211 In rejecting the no-duty rule for nonsubscribing- statutory waiver ineffective for at least two reasons. First, employer cases, the Robinson Court at least arguably rejected landowners may assert an invitee's negligence based on the principle that an employer does not have a duty to warn conduct other than the invitee's awareness of the risk, and the employees of open and obvious hazards. 280 S.W.2d at TWCA's waiver prohibits a nonsubscribing employer from 239–40. The Court observed that in the landowner-invitee relying on any such conduct to do so. See Keng, 23 S.W.3d field of law, “[t]he rule is well settled that the owner of at 351–52. Second, in cases in which the criminal-activity or premises is not required to keep them safe for invitees in necessary-use exceptions apply, and thus the employer has so far as open, obvious and known defects or conditions a duty to the employee despite the employee's awareness of are concerned,” but declined to apply that concept to suits the risk, the TWCA will prevent the employer from relying between an employer and employee. Id. at 240. The Court on the employee's awareness of the risk as a defense to the then rejected the employer's argument in that case that it employee's claims. In Parker and Del Lago, the defendants had no duty to protect the employee from or warn him of were not the plaintiffs' employers, and thus they were able to a large pool of oil on the floor, even though the record rely on the plaintiffs' appreciation of the dangers to argue that established that the spill was open and obvious, that the the plaintiff bore some portion of the responsibility for his or employee had seen and failed to report the spill to anyone else, her injuries. Parker, 565 S.W.2d at 520–21; Del Lago, 307 and that the employee recognized that the oil made the floor S.W.3d at 773–74. But if the defendant in a case that meets the slippery. Id. at 239–40. In the sixty years since Robinson, criminal-activity or necessary-use exception is the plaintiff's however, this Court has never held that an employer has a nonsubscribing employer, 20 the TWCA would prohibit that duty to warn employees of open and obvious dangers or defense. See Keng, 23 S.W.3d at 351–52. relied on Robinson for that proposition. 18 Instead, the Court has repeatedly held that an employer does not have a duty Although the TWCA's waiver of defenses is intended to warn employees of dangers that are open and obvious or to encourage employers to subscribe to the workers' already known to the employee. 19 To resolve this apparent compensation system, the TWCA does not create an conflict, we expressly reaffirm the Court's more recent *212 “especially punitive litigation regime for non-subscribing holdings, and we overrule Robinson to the extent it conflicts employers.” Tex. W. Oaks Hosp., LP v. Williams, 371 with those holdings and with our recognition of the criminal- S.W.3d 171, 192 (Tex.2012). Absent intentional misconduct, activity and necessary-use exceptions in this case. employees still must prove all the elements of a common law negligence claim to prevail against nonsubscribing employers. See TEX. LAB. CODE § 406.033(d); Tex. W. Oaks, 371 S.W.3d at 187. “In other words,” as the Fifth c. The TWCA Circuit observed in this case, TWCA “section 406.033(a)(1)–

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(3) may limit an employer's defenses, but it does not eliminate possessor should anticipate the harm despite such knowledge an employee's *213 burden to establish his common law or obviousness,’ ” and “[t]hat caveat seems to capture today's claim.” 746 F.3d at 198 (citing Am. Int'l Specialty Lines Ins. narrow and fact-specific holding.” Del Lago, 307 S.W.3d at Co. v. Rentech Steel, L.L.C., 620 F.3d 558, 565 (5th Cir.2010); 774 (quoting RESTATEMENT (SECOND) OF TORTS § Tex. W. Oaks, 371 S.W.3d at 187). This burden, of course, 343A(1)). includes the burden to prove that a defendant had a duty to the plaintiff, which is the issue that our general rule and Austin contends that the same reasoning should apply here, exceptions address. and that it would apply regardless of whether the Court employed an objective or subjective standard for evaluating the reasonableness of his conduct, because “it was objectively B. No new exception reasonable for an employee in his situation to attempt [22] Having clarified the general rule that an employer or to perform his assigned task, notwithstanding the obvious landowner owes no duty to protect or warn an employee or dangers posed by th[e] condition” of the floor. Essentially, invitee against unreasonably dangerous premises conditions Austin argues that it was reasonable for him to undertake the that are open and obvious or otherwise known to the risk of slipping in the oily liquid because, although he was employee or invitee, and the criminal-activity and necessary- aware of the risk, he undertook it at the instruction of his use exceptions that preserve that duty under limited employer rather than by purely voluntary choice. While this circumstances, we now address Austin's argument that we argument has some appeal, we are not persuaded for several should recognize a new exception in this case. Specifically, reasons. Austin asserts that we should recognize a distinct duty in cases where an employee is injured while performing a task First, Texas law treats Austin's encounter with the spill as that the employer specifically assigned to the employee. We voluntary in nature, even though it was part of his work decline to do so. duties. See McKee, 271 S.W.2d at 396 (exploring historical underpinning of this rule). If we created an exception to Both Parker and Del Lago indicated that there may be the general rule that employers owe no premises-liability circumstances in which invitees may reasonably be expected duty with respect to open and obvious conditions unless to choose to encounter a dangerous condition despite their the employee encountered the condition as part of his work knowledge and appreciation of the risk. In Parker, the Court duties, the exception would swallow the rule. Moreover, the quoted a comment from the Second Restatement stating that employees in Goss, Skiles, and Elwood were engaged in their a landlord's duty with respect to common areas work duties at the time of their injuries. *214 Austin argues that those cases are distinguishable because the behavior that is not always satisfied by warning led to the employees' injuries was risky and unnecessary the lessee or others of the dangerous to performance of the assigned task. See Goss, 262 S.W.3d condition, and ... knowledge of such at 794 (hitting shin on three-foot-tall cart while walking persons of the danger will not always in warehouse); Skiles, 221 S.W.3d at 567 (climbing over prevent their recovery. Where, for nonfunctioning lift gate); Elwood, 197 S.W.3d at 794 (putting example, the entrance to an apartment hand in car doorjamb while loading groceries). But we see house is dangerously defective, and nothing exceedingly risky about walking in the vicinity of a there is no other available entrance, the third person may be expected to use it grocery cooler. See Goss, 262 S.W.3d at 794. 21 And it is not notwithstanding any warning, or even clear that the employee in Skiles could have accomplished his his own knowledge of the danger. assigned task of unloading the truck without climbing over the broken lift gate. 221 S.W.3d at 567. He could have simply 565 S.W.2d at 515 (quoting RESTATEMENT (SECOND) declined to unload the truck at that time, but an employee OF TORTS § 360 cmt. c). This example encapsulated the always has the option to decline to perform an assigned task facts of Parker, where the invitee had no other means to exit and incur the consequences of that decision. See McKee, 271 the second-story apartment except by the dangerous staircase. S.W.2d at 396. See id. at 514. And in Del Lago, the Court stated that section 343A(1) of the Second Restatement “bars liability when an [23] Second, Austin's proposed exception is not compatible invitee is aware of the dangerous condition, ... ‘unless the with our precedent that “when an employee's injury results

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from performing the same character of work that employees the district court's summary judgment for Kroger on Austin's in that position have always done, an employer is not liable negligent-activities claim, agreeing with the district court's if there is no evidence that the work is unusually precarious.” holding that Austin's injury arose from a premises condition Elwood, 197 S.W.3d at 795 (citing Werner v. Colwell, 909 rather than any contemporaneous activity by Kroger, and S.W.2d 866, 869 (Tex.1995), which cites Great Atl. & Pac. that Austin “cannot pursue both a negligent activity and Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 251 (1943)). It a premises defect theory of recovery based on the same is undisputed that mopping up spills is the same character of injury.” 746 F.3d at 197. The Fifth Circuit remanded Austin's work that Austin—as the store's self-described “floor clean- necessary-instrumentalities claim, however, because the up person”—and other employees in his position have always district court had “failed to consider whether ... [that theory] done. is sufficient to support a stand-alone ordinary negligence claim.” Id.

Third, the most efficient way for employers like Kroger to eliminate a dangerous condition like the spill in this case is The Fifth Circuit's certified question only addresses Austin's to have a trained employee clean it, and it is the public policy premises-liability claim, and for that reason some Justices in Texas to encourage them to do so. See, e.g., Tex. Trunk would not reach Austin's necessary-instrumentalities claim. Ry. Co. v. Ayres, 83 Tex. 268, 18 S.W. 684, 685–86 (1892). But Kroger asks us to reach the instrumentalities claim, For example, because public policy encourages landowners asserting that the claim fails as a matter of law for several to remedy potentially dangerous conditions on their property, reasons. We decline to decide the merits of Austin's we have prohibited plaintiffs from relying on evidence that a instrumentalities claim, but in the interest of judicial defendant made repairs or otherwise remediated a dangerous efficiency we will address one of Kroger's arguments, which condition on its property after the plaintiff's injury as proof touches on the relationship between the instrumentalities of the defendant's negligence, observing that a defendant claim and the premises-liability claim. Specifically, Kroger would be discouraged from making repairs “if it must do so argues that the instrumentalities claim must fail for the at its peril.” Id. at 686 (discussing predecessor to TEX. R. same reason the negligent-activities claim must fail: because EVID. 407(a)). Imposing liability on employers for injuries to a condition of the premises, rather than any of Kroger's employees caused by open and obvious dangers knowingly contemporaneous activities, caused Austin's fall, his claim encountered by the employee in the ordinary course of sounds exclusively in premises liability, and he can only employment would discourage employers from retaining recover on that claim or not at all. We do not agree. employees to perform the kinds of repair and janitorial work necessary to maintain their premises in a reasonably safe [25] In a typical premises-liability case, the landowner condition. Because landowners generally are not liable to owes the invitee two duties: a duty to keep the premises non-employees for open and obvious premises conditions, reasonably safe and a duty not to injure the invitee see Moritz, 257 S.W.3d at 215, making landowners liable through contemporaneous negligent activity. See, e.g., to employees for such conditions directly disincentivizes State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) employers from hiring employees to remedy such conditions. (distinguishing a negligent-activity claim, which “result[s] We thus decline to recognize the new exception that Austin from a contemporaneous activity,” from a premises-defect proposes. claim, which “is based on the property itself being unsafe”);

Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992) (holding that trial court did not err in submitting only premises-liability claim when injury arose from pool of IV.

water that employee had created at least thirty minutes before accident). Thus, when a claim does not result from Austin's Necessary–Instrumentalities Claim contemporaneous activity, the invitee has no negligent-

activity claim, and his claim sounds exclusively in premises-

[24] As noted above, in addition to his premises-liability liability. See Shumake, 199 S.W.3d at 284; Keetch, 845 claim, Austin alleged *215 that Kroger negligently caused S.W.2d at 265.

his fall by engaging in negligent activities and by negligently failing to provide a “necessary instrumentality,” namely, [26] But when the landowner is also an employer and the the Spill Magic system that Kroger's employee handbook invitee is also its employee, this additional relationship may required be available at the store. The Fifth Circuit affirmed

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give rise to additional duties, such as a duty to provide contemporaneous negligent activity is not necessary to an necessary equipment, training, or supervision. See Moritz, instrumentalities claim, the absence of contemporaneous 257 S.W.3d at 215 & n. 15; Islas, 228 S.W.3d at 651–52 & activity does not necessarily bar an instrumentalities claim. 23 n. 10; Farley, 529 S.W.2d at 754. Austin's instrumentalities claim invokes one of these additional duties: the duty to [30] To hold otherwise would create disparate treatment of furnish reasonably safe equipment necessary for performance employees' instrumentalities claims depending on whether of the job. See In re Macy's Tex., Inc., 291 S.W.3d 418, 420 the employer owned or operated the premises where the (Tex.2009); Escoto, 288 S.W.3d at 412; Moritz, 257 S.W.3d employee worked. Only an employer that has control over at 215; Farley, 529 S.W.2d at 754. We have addressed the the premises where the employee is injured has a premisesinteraction between premises-liability claims and negligent- liability duty to the employee, but the duty to provide activity claims on several occasions. See, e.g., Del Lago, 307 necessary and safe instrumentalities applies to employers S.W.3d at 776; Shumake, 199 S.W.3d at 284; Keetch, 845 generally. See Moritz, 257 S.W.3d at 215; Islas, 228 S.W.3d S.W.2d at 264. But we have never addressed the interaction at 651–52 & n. 10; Farley, 529 S.W.2d at 754. If we between premises-liability claims and an employer's *216 were to adopt the rule Kroger advocates, employees injured other general negligence duties. We do so now. on their employers' premises by the employer's failure to provide necessary and safe equipment would have to try [27] When an injury arises from a premises condition, it is their claims under a premises-liability theory of recovery, often the case that any resulting claim sounds exclusively while employees injured on premises not owned by their in premises liability, but that is not necessarily the case. An employers would have to prosecute the same breach of duty injury can have more than one proximate cause. Del Lago, under a general negligence theory of recovery—two different 307 S.W.3d at 774; Lee Lewis Constr., Inc. v. Harrison, 70 claims with different elements of proof. Compare Henkel v. S.W.3d 778, 784 (Tex.2001). The fact that Austin alleged that Norman, 441 S.W.3d 249, 251–52 (Tex.2014) (“To prevail a condition of the premises proximately caused his injury does on a premises liability claim against a property owner, an not preclude his allegation that Kroger's negligent failure to *217 injured invitee must establish four elements: (1) the provide the Spill Magic system also caused his injury. If the property owner had actual or constructive knowledge of the only relationship between Austin and Kroger were that of condition causing the injury; (2) the condition posed an landowner–invitee, the alleged facts could only give rise to unreasonable risk of harm; (3) the property owner failed to a premises-liability claim. Because the failure to provide the take reasonable care to reduce or eliminate the risk; and (4) Spill Magic system is nonfeasance, and not contemporaneous the property owner's failure to use reasonable care to reduce negligent activity, it could not give rise to a negligent-activity or eliminate the risk was the proximate cause of injuries to claim. 22 See Del Lago, 307 S.W.3d at 776 (distinguishing the invitee.”), with Elwood, 197 S.W.3d at 794 (“To establish between allegations of “nonfeasance,” or the failure to act, negligence, a party must establish a duty, a breach of that and allegations of misfeasance, or improper actions). duty, and damages proximately caused by the breach.”). We see no reason why employees injured by a breach of the [28] [29] As Austin's employer, Kroger owed Austin same duty should have to prove different elements to recover. duties in addition to its premises-liability duty and its duty We therefore reject Kroger's argument that its lack of any not to engage in negligent activities, including the duty to negligent activity contemporaneous with Austin's fall defeats provide Austin with necessary instrumentalities. See Moritz, Austin's instrumentalities claim as a matter of law. 257 S.W.3d at 215 & n. 15; Islas, 228 S.W.3d at 651– 52 & n. 10; Farley, 529 S.W.2d at 754. Contemporaneous negligent activity is not an element of an instrumentalities V.

claim. See Farley, 529 S.W.2d at 756–57. To the contrary, an instrumentalities claim may be founded on nonfeasance or misfeasance, neither of which is particularly likely to Answer occur contemporaneously with a resulting injury to the For the reasons we have explained, we provide the following employee. Compare Martinez, 515 S.W.2d at 265 (failure to answer to the Fifth Circuit's certified question: Under Texas provide adequate equipment), with Farley, 529 S.W.2d at 757 law, an employee generally cannot “recover against a (provision of unsuitable horse); cf. Del Lago, 307 S.W.3d nonsubscribing employer for an injury caused by a premises at 776 (discussing misfeasance and nonfeasance). Because

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are open and obvious or otherwise known to the employee.

defect of which he was fully aware but that his job duties Exceptions to this general rule may apply in premises liability required him to remedy.” As is the case with landowners and cases involving third-party criminal activity or a necessary invitees generally, employers have a duty to maintain their use of the premises. If an exception applies, the employer may premises in a reasonably safe condition for their employees, owe a duty to protect the employee from the unreasonably but they will ordinarily satisfy their duty as a matter of law dangerous condition despite the employee's awareness of by providing an adequate warning of concealed dangers the danger, and the TWCA will prohibit a nonsubscribing of which they are or should be aware but which are not employer from raising defenses based on the employee's known to the employee. “The employee's awareness of the awareness.

defect” does not “eliminate the employer's duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee All Citations of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an 465 S.W.3d 193, 165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. employer to eliminate or warn of dangerous conditions that 1154

Footnotes 1 746 F.3d 191 (5th Cir.2014) (per curiam); see TEX. CONST. Art. V, § 3–c(a) (“The supreme court [has] jurisdiction to answer questions of state law certified from a federal appellate court.”); TEX. R. APP. P. 58 (certified questions of law).

2 See TEX. LAB. CODE § 406.002 (providing that “an employer may elect to obtain workers' compensation insurance coverage” and thus be “subject to” the Texas Workers' Compensation Act).

3 See, e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) ( “A negligent activity claim requires that the claimant's injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity.”).

4 See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975) (“It is well established that an employer has certain nondelegable and continuous duties to his employees,” including “the duty to furnish reasonably safe instrumentalities with which employees are to work.”).

5 The district court held, and the Fifth Circuit agreed, that Austin's injury arose from a premises condition rather than any contemporaneous activity by Kroger, and Austin “cannot pursue both a negligent activity and a premises defect theory of recovery based on the same injury.” 746 F.3d at 196–97.

6 The Fifth Circuit agreed with the district court's holding that “no reasonable juror could conclude that Kroger was consciously indifferent to the safety of its employees, or that [Austin] faced an extreme risk in performing a job he had done safely for years.” Id. at 196 n. 2.

7 A premises-liability duty may apply to the owner of the premises or to another party who operates or exercises control over the premises. See, e.g., Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex.2008). We use the term “landowner” in this opinion to refer to all such parties.

8 We use the term “generally” here to acknowledge circumstances in which an employee may not be an “invitee” on the employer's premises. For example, if an employee, acting outside the scope of employment, enters the employer's premises without the employer's knowledge and not for their mutual benefit, the employee might be a licensee or even a trespasser. We need not decide that issue here.

9 E.g., Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 771 (Tex.2010); TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 764 (Tex.2009); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995).

10 E.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex.2004).

11 E.g., Henkel v. Norman, 441 S.W.3d 249, 252 (Tex.2014); TXI, 278 S.W.3d at 765; State v. Williams, 940 S.W.2d 583, 584 (Tex.1996).

12 See also Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002) (stating that landowner owed invitee “a duty to exercise reasonable care to protect her from dangerous conditions in the store that were known or reasonably discoverable, but it was not an insurer of her safety”); Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996) (“An employer is not an insurer of its employees' safety at work; however, an employer does have a duty to use ordinary care in providing a safe work place.”).

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13 In Urena, we recognized that the facts of that case—tenant-on-tenant crime as opposed to crimes committed against tenants by nonresidents—might require a different duty analysis than that used in Timberwalk, but we did not reach that issue because, even assuming a duty existed, the plaintiff presented no evidence of causation. 162 S.W.3d at 551 n. 2.

14 In Holder, we restated the duty rule from Timberwalk: “With regard to criminal acts of third parties, property owners owe a duty to those who may be harmed by the criminal acts only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable.” 5 S.W.3d at 655. But we also noted that, in most cases, “the foreseeability analysis will be shaped by determining whether the plaintiff was an invitee, a licensee, or a trespasser.” Id. We did not have to determine the plaintiff's status in that case because the plaintiff “was an unforeseeable victim regardless of her status.” Id.

15 In TXI, the Court did not refute this construction of Parker, which is consistent with the Court's explanations in Moritz and Dixon, but instead “assume[d] that a duty to warn exist[ed]” because the defendant did “not attempt to argue that it owed no duty,” and argued instead that it satisfied its duty by providing an adequate warning. TXI, 278 S.W.3d at 765.

16 The common law assumption-of-the-risk doctrine we refer to here involves implied assumptions of risk and not express, contractual assumption of the risk or statutory assumption-of-the-risk defenses. See, e.g., TEX. CIV. PRAC. & REM. CODEE § 93.001.

17 See also Dugger, 408 S.W.3d at 832 (“Proportionate responsibility abrogated former common law doctrines that barred a plaintiff's recovery because of the plaintiff's conduct—like assumption of the risk, imminent peril, and last clear chance— in favor of submission of a question on proportionate responsibility.”); TEX. CIV. PRAC. & REM. CODE E §§ 33.001–.017 (proportionate-responsibility statute).

18 This Court has cited Robinson on seven occasions. See Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 549 (Tex.2001);

Werner, 909 S.W.2d at 868; Hernandez v. City of Fort Worth, 617 S.W.2d 923, 925 (Tex.1981); Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 568 (Tex.1972); Royal Indem. Co. v. Dennis, 410 S.W.2d 185, 187 (Tex.1966); Tarver v. Tarver, 394 S.W.2d 780, 782 (Tex.1965); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 377 (Tex.1963), abrogated by Parker, 565 S.W.2d at 516. On three of those occasions, the Court cited Robinson for an error-preservation issue rather than the holding on the merits of the case. See Hernandez, 617 S.W.2d at 925; Dennis, 410 S.W.2d at 187; Tarver, 394 S.W.2d at 782. On four occasions the Court cited Robinson for merits-based holdings. See Lawrence, 44 S.W.3d at 549; Werner, 909 S.W.2d at 868; Leadon, 484 S.W.2d at 568–69; Halepeska, 371 S.W.2d at 377. One such case, Halepeska, was not an employer-employee case, and was later abrogated by Parker. Halepeska, 371 S.W.2d at 377. Leadon did not involve an argument that the danger at issue was open and obvious or known to the employee; instead, the issue was whether the employer had a duty to hire someone to watch for falling limbs while the employee performed his logging work. 484 S.W.2d at 568–69. In Werner, the Court cited Robinson for the general principle that an employee cannot recover on a negligence claim against a nonsubscribing employer without proving that the employer was negligent. Werner, 909 S.W.2d at 868 (holding that there was no evidence of the negligence alleged). And in Lawrence, which was later superseded in part by statute, see TEX. LAB. CODE § 406.033(e), we cited Robinson, among numerous other cases, only for the proposition that the Workers' Compensation Act did not bar all possible defenses to liability a nonsubscribing employer might have. Lawrence, 44 S.W.3d at 549.

19 See Escoto, 288 S.W.3d at 412–13 (“[T]he employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by the employee.’ ... Likewise, we do not impose a duty to train employees regarding the commonlyknown dangers of driving while fatigued.”); Goss, 262 S.W.3d at 794 (“The threshold question here is one of duty, as we have held that an employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by the employee.’ ”); Skiles, 221 S.W.3d at 568 (“[W]hile the duty of ordinary care generally requires an employer to ‘warn an employee of the hazards of employment and provide needed safety or equipment or assistance,’ the employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by the employee.’ ”); Elwood, 197 S.W.3d at 795 (“[Employer] had no duty to warn [employee] of a danger known to all and no obligation to provide training or equipment to dissuade an employee from using a vehicle doorjamb for leverage.”).

20 Some courts of appeals have applied Timberwalk in employer–employee premises-liability cases. See, e.g., Barton v.

Whataburger, Inc., 276 S.W.3d 456, 462 (Tex.App.–Houston [1st Dist.] 2008, pet. denied); Gibbs v. ShuttleKing, Inc., 162 S.W.3d 603, 610 (Tex.App.–El Paso 2005, pet. denied); Allen v. Connolly, 158 S.W.3d 61, 65 (Tex.App.–Houston [14th Dist.] 2005, no pet.). We have never expressly held that Timberwalk governs an employer's duty to employees with respect to third-party criminal activity on the premises, and that issue is not presented here. We have held, and hold again here, that at least in general, an employer's premises-liability duty to employees is the same as other landowners' premises-liability duties to other invitees. See, e.g., Hernandez, 374 S.W.2d at 197.

21 In Goss, the employee had to “maneuver around a ‘lowboy’ loading cart” to retrieve items from a deli cooler. 262 S.W.3d at 794. “She successfully stepped over the cart and entered the cooler. After she retrieved what she needed, she turned

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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015) 165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

around to leave the cooler and hit her shin on the lowboy, causing her to reach out for a shelf to prevent herself from falling. In doing so, she injured her back.” Id.

22 We do not decide here whether a single injury could give rise to both a premises-liability claim and a negligent-activity claim if both the condition of the premises and the contemporary activities of the premises owner proximately cause the injury.

23 We do not decide which, if any, of the limitations on an employer's premises-liability duty may also apply to its instrumentalities duty.

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Kroger Co. v. Elwood, 197 S.W.3d 793 (2006) 49 Tex. Sup. Ct. J. 623

not recover for injuries sustained when customer slammed car door on employee's hand; no KeyCite Yellow Flag - Negative Treatment evidence was presented indicating that loading Distinguished by Duncan v. First Texas Homes, Tex.App.-Fort Worth, groceries on sloped portion of store's parking February 12, 2015 lot was unusually dangerous, that other courtesy clerks had suffered similar injuries, that job required special training, or that carts with wheel locks were necessary to safely load vehicles, and employee admitted he knew it was dangerous to place hand on vehicle doorjamb.

9 Cases that cite this headnote

[2] Workers' Compensation Instructions Synopsis Background: Grocery store employee brought negligence Nonsubscribers to workers' compensation are not action against grocery store for injuries sustained when entitled to a contributory negligence instruction customer slammed car door on employee's hand while he in an employee's action for work-related injuries. was loading groceries into her car. The 18th Judicial District Cases that cite this headnote Court, Johnson County, John E. Neill, J., entered judgment on jury's verdict in favor of employee, and employer appealed. The Court of Appeals affirmed. [3] Negligence Elements in General To establish negligence, a party must establish [Holding:] On petition for review, the Supreme Court held a duty, a breach of that duty, and damages that grocery store had no duty to warn employee of danger of proximately caused by the breach. placing hand on doorjamb of customer's vehicle while loading 76 Cases that cite this headnote groceries.

[4] Negligence Reversed and rendered. Necessity and Existence of Duty Negligence Duty as Question of Fact or Law Generally West Headnotes (10) Whether a duty exists is a threshold inquiry and a question of law in a negligence action; liability cannot be imposed if no duty exists.

[1] Labor and Employment Duty to Warn 28 Cases that cite this headnote Labor and Employment Dangers or Defects Known to Employee [5] Labor and Employment Grocery store had no duty to warn store Nature and Scope of Duty Owed by employee of danger of placing hand on vehicle Employer doorjamb and one foot on grocery cart to An employer has a duty to use ordinary care in prevent it from rolling on sloped parking lot providing a safe workplace.

while loading groceries into customer's vehicle, or to provide grocery carts with wheel locks 14 Cases that cite this headnote or additional personnel to assist with loading groceries into vehicles, and thus, employee could

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Kroger Co. v. Elwood, 197 S.W.3d 793 (2006) 49 Tex. Sup. Ct. J. 623

employer is not liable if there is no evidence that [6] Labor and Employment the work is unusually precarious.

Nature and Scope of Duty Owed by Employer 6 Cases that cite this headnote Labor and Employment Kind of Equipment Labor and Employment Duty to Warn Attorneys and Law Firms

An employer has a duty to warn an employee of *794 Brian J. Brandstetter, Brackett & Ellis, P.C., Fort the hazards of employment and provide needed Worth, for Petitioner. safety equipment or assistance.

Rodney R. Elkins, Rodney R. Elkins & Co., Dallas, for 25 Cases that cite this headnote Respondent.

Opinion [7] Labor and Employment Liability as Insurer; Relationship to PER CURIAM.

Workers' Compensation An employer is not an insurer of its employees' Billy Elwood, a courtesy clerk at a Kroger grocery store, safety. was injured when a customer shut her vehicle door on his hand while he was transferring items from a grocery cart 5 Cases that cite this headnote to the vehicle. Elwood had placed one hand in the vehicle's doorjamb, and one foot on the cart, to keep the cart from rolling down a slope in Kroger's parking lot. In the trial court, [8] Labor and Employment a jury found Kroger liable for Elwood's injuries; the court of Dangers or Defects Known to Employee appeals affirmed the judgment. Because Kroger had no duty An employer owes no duty to warn an employee to warn Elwood not to place his hand in a doorjamb, and there of hazards that are commonly known or already is no evidence that additional equipment or assistance were appreciated by the employee. needed to perform Elwood's job safely, we reverse and render judgment for Kroger.

24 Cases that cite this headnote

[1] Kroger is a nonsubscriber to workers' compensation;

[9] Labor and Employment therefore, to recover damages Elwood must establish that Nature and Scope of Duty Owed by Kroger's negligence proximately caused his injuries. See Employer Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995). Elwood Labor and Employment alleges that Kroger provided inadequate training on how to Kind of Equipment maneuver carts on a sloped parking lot, never advised that he An employer has no duty to provide to its should take a second clerk with him to the sloped portion of employees equipment or assistance that is the lot, and provided no explanation on how to avoid injury unnecessary to the job's safe performance. when loading groceries into customers' vehicles. Elwood also alleges that, even though Kroger was aware that customers'

11 Cases that cite this headnote vehicles were often damaged by rolling carts in the sloped parking area, it never provided carts with locking wheels or wheel blocks.

[10] Labor and Employment Working Conditions and Methods of [2] A jury found Kroger liable for Elwood's injuries, but Performing Work also determined that Elwood was forty percent negligent.

When an employee's injury results from The trial court reduced Elwood's judgment accordingly. A performing the same character of work that divided court of appeals affirmed the verdict, holding it was employees in that position have always done, an supported by factually and legally sufficient evidence. 2004

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Kroger Co. v. Elwood, 197 S.W.3d 793 (2006) 49 Tex. Sup. Ct. J. 623

Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d WL 2567069. Because nonsubscribers are not entitled to 249, 251 (1943)).

a contributory negligence instruction, the court of appeals reformed the judgment and awarded Elwood one hundred In this case, there is no evidence that loading groceries on percent of the damages. 2004 WL 2567069 (citing Kroger the sloped portion of Kroger's parking lot is an unusually Co. v. Keng, 23 S.W.3d 347, 352 (Tex.2000)). Kroger now dangerous job, nor is there evidence that other courtesy petitions for review, arguing that there is no evidence to clerks sustained similar injuries while loading groceries on support the jury's verdict.

the sloped lot. Indeed, loading purchases into vehicles is a [3] [4] To establish negligence, a party must establish a task performed regularly—without any special training or assistance—by customers throughout the grocery and retail duty, a breach of that duty, and damages proximately caused industry. While there is evidence that grocery carts had rolled by the breach. Werner, 909 S.W.2d at 869 (citing El Chico into vehicles due to the parking lot's slope and may have posed Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987)). Whether a foreseeable risk of damage to customers' vehicles, this is a duty exists is a threshold inquiry and a question of law;

no evidence that the slope posed a foreseeable risk of injury liability cannot be imposed if no duty exists. Van Horn v.

to Kroger's employees. Elwood presented no evidence that Chambers, 970 S.W.2d 542, 544 (Tex.1998).

his job required specialized training. See Nat'l Convenience Stores, 987 S.W.2d at 149. Elwood testified that, prior to [5] [6] [7] [8] [9] [10] An employer has a duty working at Kroger, he knew it was dangerous to place his to use ordinary care in providing a safe workplace. Farley hand in a vehicle's doorjamb. Moreover, there is no evidence v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975).

that carts with wheel locks or additional personnel were It must, for example, warn an employee of the hazards necessary to safely load groceries. See Allsup's Convenience of employment and provide needed safety equipment or Stores, 934 S.W.2d at 438.

assistance. Id. However, an employer is not an insurer of its employees' safety. Leitch v. Hornsby, 935 S.W.2d 114, Kroger had no duty to warn Elwood of a danger known to 117 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19, all and no obligation to provide training or equipment to 21 (Tex.1993). It owes no duty to warn of hazards that are dissuade an employee from using a vehicle doorjamb for commonly known or already appreciated by the employee.

leverage. Employers are not insurers of their employees. See See Nat'l Convenience *795 Stores, Inc. v. Matherne, 987 Leitch, 935 S.W.2d at 117; Exxon Corp., 867 S.W.2d at 21.

S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no Accordingly, without hearing oral argument, we reverse the pet.). It has no duty to provide equipment or assistance that court of appeals' judgment and render judgment for Kroger.

is unnecessary to the job's safe performance. See Allsup's See TEX. R. APP. P. 59.1, 60.2(c).

Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 438 (Tex.App.—Amarillo 1996, writ denied). And, when an employee's injury results from performing the same character All Citations of work that employees in that position have always done, an employer is not liable if there is no evidence that the work 197 S.W.3d 793, 49 Tex. Sup. Ct. J. 623 is unusually precarious. Werner, 909 S.W.2d at 869 (citing

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had no bearing on relevance as fair and accurate depictions of saw at issue;

[6] video recordings of operable and inoperable bone-in band saws were relevant;

[7] video and photographic evidence were not subject to exclusion based on employer's unsubstantiated claim that they were illegally obtained; and

[8] trial court's alleged failure to timely investigate and respond to juror's report to bailiff about jury misconduct during deliberations did not warrant new trial.

Affirmed.

Synopsis West Headnotes (38) Background: Journeyman filed suit against employer that was not subscriber of workers' compensation insurance for [1] Trial negligence arising out of amputation of several fingers while Matters of law in general using bone-in band saw to cut meat. Following jury trial, the 129th District Court, Harris County, entered judgment on Trial jury's verdict for journeyman, and denied employer's motion Form and Language for new trial. Employer appealed. The parties have the right to be judged by a jury properly instructed in the law; therefore, the goal is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly, and Holdings: The Court of Appeals, J. Brett Busby, J., held that:

completely. Tex. R. Civ. P. 278.

[1] employer owed employee duties arising out of employer- Cases that cite this headnote employee relationship, in addition to premises liability duties, and thus, was subject to liability in negligence for breach of those duties; [2] Trial Authority to instruct jury in general [2] employer's breach of duty to provide adequate Trial courts enjoy broad discretion with respect maintenance for band saw was proximate cause of to jury instructions, so long as the charge is journeyman's injuries; legally correct. Tex. R. Civ. P. 278.

Cases that cite this headnote [3] employer's breach of its duty to provide safety regulations to journeymen and other meat cutters on safe operation of band saw was proximate cause of journeyman's injuries; [3] Labor and Employment Nature and scope of duty owed by employer [4] evidence supported award of $151,744 in damages for lost Employer that elected not to subscribe earning capacity; to workers' compensation insurance owed employee duties arising out of employer-

[5] fact that photographs of bone-in band saw that journeyman employee relationship, in addition to premises was using at time of accident were taken months after accident liability duties, and thus, was subject to liability

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in negligence for breach of those duties, If an employer elects to be a non-subscriber specifically, duty to provide employee with safe to workers' compensation insurance, then it is place to work, duty to train employee in safe subject to suits at common law for damages, use and handling of band saw, and duty to to which it can raise only limited defenses, and provide safety regulations related to employee's in that situation, an employee injured on the job as journeyman meat cutter, which resulted in job must file suit and prove the elements of a employee suffering amputation of several fingers common law negligence claim. Tex. Labor Code during operation of band saw while cutting meat. Ann. § 406.033(d). Tex. Labor Code Ann. § 406.033(d).

Cases that cite this headnote 1 Cases that cite this headnote

[7] Negligence [4] Workers' Compensation Elements in general Election by Employer To establish negligence, a party must establish The Texas Workers' Compensation Act permits a duty, a breach of that duty, and damages private Texas employers to elect whether to proximately caused by the breach. subscribe to workers' compensation insurance. Tex. Labor Code Ann. § 406.002(a). Cases that cite this headnote

Cases that cite this headnote [8] Labor and Employment Nature and scope of duty owed by employer [5] Workers' Compensation Among the duties that an employer owes to an Injuries arising in course of employment in employee are to (1) furnish a reasonably safe general place to work, (2) warn employees of hazards of Workers' Compensation their employment that are not commonly known Exclusiveness of Remedies Afforded by or already appreciated, (3) supervise employees'

Acts activities, (4) hire competent co-employees, If an employer elects to subscribe to workers' (5) furnish reasonably safe instrumentalities compensation insurance, then its employees with which to work, and (6) provide safety generally are prohibited from suing it and regulations. must instead pursue their claims through an 1 Cases that cite this headnote administrative agency, and in that administrative proceeding, employees need prove only that they were injured in the course and scope of their [9] Labor and Employment employment. Tex. Labor Code Ann. § 401.001 Nature and scope of duty owed by employer et seq. An employer must train employees in the safe use and handling of products and equipment Cases that cite this headnote used in and around an employer's premises or facilities.

[6] Workers' Compensation Defenses; Abrogation or Modification of Cases that cite this headnote Common-Law Defenses Workers' Compensation [10] Labor and Employment Negligence of Employer as Essential to Nature and Scope of Duty Owed by Recovery Employer Workers' Compensation An employer must exercise ordinary care, based Presumptions and burden of proof on standard negligence principles, in carrying out the duties owed to its employees.

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Cause in fact, as an element of proximate cause, Cases that cite this headnote is not shown if the defendant's conduct did no more than furnish a condition that made the [11] Courts injury possible.

Highest appellate court Cases that cite this headnote Changing higher-court precedent is not the function of an intermediate court of appeals.

[16] Negligence Cases that cite this headnote Foreseeability “Foreseeability,” as an element of proximate [12] Negligence cause, requires that a person of ordinary Elements in general intelligence should have anticipated the danger created by the negligent act or omission.

To prevail on a negligence claim, a plaintiff must prove not only that the defendant breached Cases that cite this headnote a duty, but also that he sustained damages proximately caused by that breach.

[17] Negligence Cases that cite this headnote In general; degrees of proof Negligence [13] Negligence Direct or circumstantial evidence Necessity of causation “Cause in fact” and foreseeability, as elements Negligence of proximate cause, cannot be established by Foreseeability mere conjecture, guess, or speculation; however, proximate cause may be established by direct Proximate cause consists of two elements: cause or circumstantial evidence and the reasonable in fact and foreseeability.

inferences drawn from that evidence.

Cases that cite this headnote Cases that cite this headnote

[14] Negligence [18] Labor and Employment ‘But-for‘ causation; act without which Weight and sufficiency of evidence event would not have occurred Evidence supported finding that employer's Negligence breach of its duty to provide adequate Substantial factor maintenance for band saw used by journeyman to Negligence cut meat was proximate cause of amputation of Failure to Act; Omissions several of journeyman's fingers, in action against “Cause in fact,” as an element of proximate employer that did not subscribe to workers' cause, means that the defendant's act or omission compensation insurance; employee charged with was a substantial factor in bringing about maintaining and repairing saw was not certified the injury, which would not otherwise have to do so by saw manufacturer, other meat cutter occurred. frequently attempted to repair saw, contrary to employer's policy that only thing meat cutter Cases that cite this headnote should do to band saw was to change dull blade, blade guard was inoperable and not [15] Negligence used at all, loud noise indicated improper Remoteness and attenuation; mere blade tension, which could cause blade to condition or occasion bind into meat and cause meat to roll, several employees testified that blade would often pop

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off and that blades would dull very quickly, compensation insurance, arising out of indicating that something was “very wrong” amputation of three of journeyman's fingers with saw, journeyman testified that blade was while using band saw to cut meat; employer dull on day of injury, that he had repeatedly began pressuring journeyman to return to reported issues with saw to management, that work as early as four weeks after accident no action was taken, and that, although he had and unsuccessful surgery to replace fingers, discretion to change out blade when he deemed journeyman was right-handed and he lost fingers it necessary, management had instructed him from his right hand, he was returned to work in to be conservative in using blades, as there close proximity to band saws, despite doctor's was financial incentive for those managers to concern that he should not be required to come under budget. Tex. Labor Code Ann. § work around saws, he was initially returned to 406.033(d). work on light duty but was fired for alleged insubordination after he refused to perform Cases that cite this headnote activity due to condition of his hand and informed manager of that fact, he was unable [19] Labor and Employment to satisfactorily perform work in two other Weight and sufficiency of evidence jobs involving manual labor, and there was no challenge to journeyman's expert economist Evidence supported finding that employer's quantifying journeyman's loss of past and future breach of its duty to provide safety regulations earning capacity. Tex. Labor Code Ann. § to journeymen and other meat cutters on safe 406.033(d).

operation of band saw used to cut meat was proximate cause of journeyman's injuries from Cases that cite this headnote amputation of several fingers while using saw, in action against employer that did not subscribe to workers' compensation insurance; employee [21] Damages testified that he was not even aware of existence Impairment of earning capacity of blade guard and was not using it on day Loss or impairment of earning capacity is a of injury, it was common practice of meat recognized element of damages in a personal cutters to not use blade guard, managers were injury case. aware of this practice but chose to do nothing about it, mechanical engineering experts for both Cases that cite this headnote journeyman and employer testified that band saw should not be used without blade guard, [22] Damages and journeyman's expert explained that accident Necessity of proof as to damages in general would not have occurred, if blade guard had The plaintiff has the burden of proving loss of been used as required by operator's manual. Tex.

earning capacity as an element of damages in a Labor Code Ann. § 406.033(d).

personal injury case.

Cases that cite this headnote Cases that cite this headnote

[20] Damages [23] Damages Arm, hand, wrist, and shoulder injuries Impairment of earning capacity Evidence The measure of damages for lost earning Damages capacity in a negligence case is the plaintiff's Evidence supported award of $151,744 diminished earning power or earning capacity, in damages for lost earning capacity, in the past or future, directly resulting from the in journeyman's negligence action against injuries sustained in the accident. employer that did not subscribe to workers'

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Cases that cite this headnote Cases that cite this headnote

[24] Damages [29] Evidence Impairment of earning capacity Photographs in general To support an award of damages for lost earning Generally, pictures or photographs relevant to capacity, the plaintiff generally must introduce any issue in a case are admissible. evidence from which a jury may reasonably measure in monetary terms his earning capacity Cases that cite this headnote prior to injury.

[30] Evidence Cases that cite this headnote Photographs in general Evidence [25] Damages Motion pictures Impairment of earning capacity When a photograph or video portrays facts Specific proof of actual earnings and income are relevant to an issue, it is admissible if verified by evidence of lost earning capacity. a witness as being a correct representation of the facts.

Cases that cite this headnote Cases that cite this headnote [26] Trial Admission of evidence in general [31] Evidence Trial Photographs and other pictures; sound Exclusion of improper evidence records and pictures The decision to admit or exclude evidence lies When a photograph or video portraying facts within the sound discretion of the trial court. relevant to an issue, the witness through whom the photograph or video is introduced must know Cases that cite this headnote the object involved and be able to state that the photograph or video correctly represents it.

[27] Appeal and Error Cases that cite this headnote Rulings as to Evidence in General A party seeking to reverse a judgment based on evidentiary error must prove that the [32] Evidence error probably resulted in rendition of an Photographs in general improper judgment, which usually requires the The fact that the scene or the object portrayed in complaining party to show that the judgment a photograph or video offered into evidence has turns on the particular evidence excluded or changed since the time of the event in question admitted. in the litigation does not prevent the admission of the photograph or video into evidence if the Cases that cite this headnote changes are explained in such a manner that the photograph or video will help the jury in [28] Evidence understanding the nature of the condition at the Relevancy in general time of the event at issue.

Facts existing both before and after an event in Cases that cite this headnote controversy may be relevant to establishing the cause of that event. Tex. R. Evid. 402.

[33] Evidence

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Determination of question of admissibility time of accident and of operable band saw, which A dispute as to the accuracy of some part of were offered to show employer's breach of duties the photograph or video usually goes only to the to provide journeymen and meat cutters with weight of the evidence, not to its admissibility. training on safe use of band saw and to maintain saws in safe and operable condition, were not Cases that cite this headnote subject to exclusion in trial on journeyman's negligence action against employer that did not subscribe to workers' compensation insurance [34] Evidence arising out of amputation of several fingers while Determination of question of admissibility using saw, based on employer's claim that videos Fact that photographs of bone-in band saw that and photographs were taken illegally, absent any journeyman was using to cut meat at time of showing that journeyman had committed crimes accident were taken months after accident had no of criminal trespass or improper photography or bearing on relevance of photographs as fair and visual recording at time videos were recorded accurate depiction of saw, in negligence action and photographs were taken. Tex. Labor Code against employer. Tex. R. Evid. 402.

Ann. § 406.033(d); Tex. Civ. Prac. & Rem. Code Cases that cite this headnote Ann. § 123.002; Tex. Crim. Proc. Code Ann. art.

38.23; Tex. Penal Code Ann. §§ 21.15, 30.05.

[35] Workers' Compensation Cases that cite this headnote Admissibility of evidence Video recording of bone-in band saw used to [37] New Trial cut meat that was making loud noise when Misconduct of or affecting jurors turned on, together with videos of saw that Trial court's alleged failure to timely investigate did not make such noise when running, and and respond to juror's report to bailiff about jury of non-operational saw for which blade had misconduct during deliberations, specifically, popped off were relevant, in journeyman's that attorney member of jury was offering his negligence action against employer that did not own definition of legal phrases and words based subscribe to workers' compensation insurance, on his own experience and that another juror arising out of amputation of several fingers on contributed her own thoughts based on her journeyman's right hand while using saw to experience as legal assistant, did not warrant new cut meat; journeyman testified that saw he was trial in journeyman's action against employer using at time of accident was making loud noise for negligence arising out of work-related similar to saw in video, and journeyman was amputation of fingers while using band saw heard in video of inoperable band saw saying to cut meat, where alleged misconduct did not “once again, the saw is broken on the same day involve outside influence brought to bear on jury, they said they fixed it,” and videos were offered and thus, juror was prohibited from testifying to prove that employer breached its duties to about deliberations. Tex. R. Civ. P. 327(b); Tex.

train journeyman and meat cutters on proper R. Evid. 606.

use of saw and to maintain equipment used by employees to perform job duties. Tex. Labor Cases that cite this headnote Code Ann. § 406.033(d); Tex. R. Evid. 402.

Cases that cite this headnote [38] Appeal and Error Remarks and conduct of judge To reverse a judgment on the basis of judicial [36] Evidence misconduct, a reviewing court must conclude Evidence wrongfully obtained both that judicial impropriety occurred and that Video recordings and photographs of bone-in the complaining party suffered harm.

band saw used by journeyman to cut meat at

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Kroger argues in its sixth issue that the trial court abused Cases that cite this headnote its discretion when it failed to intervene to remedy alleged juror misconduct. We overrule this issue because, even if we assume the trial court had a duty to intervene and failed to do so, Kroger has not established that it was harmed as a result.

On Appeal from the 129th District Court, Harris County, We therefore affirm the trial court's judgment. Texas, Trial Court Cause No. 2011–44685

Attorneys and Law Firms BACKGROUND Chance McMillan, Jason A. Gibson, Peter Michael Kelly, for Christopher Milanes. A. Kroger hires Milanes and trains him as a journeyman meat cutter.

Brock C. Akers, for the Kroger Company. Milanes applied for a job at Kroger in 2007. Milanes went through a one-day orientation before he started work.

Panel consists of Justices Jamison, Busby, and Brown. According to Milanes, the orientation did not involve safety training but instead covered the advantages of joining the union. Once Milanes started working for Kroger, he was OPINION assigned to work in the meat department as a clerk. After he had been working for about a month, Kroger promoted J. Brett Busby, Justice Milanes to apprentice meat cutter. Milanes then moved from *1 Appellant, The Kroger Company, a non-subscriber store to store before eventually being assigned to the Post Oak to workers' compensation insurance, appeals from a final Kroger in 2009. judgment in favor of appellee Christopher Milanes, a Kroger employee who was seriously injured while cutting meat. In its As an apprentice meat cutter, Milanes received on-the-job first two issues, Kroger contends the trial court erred when it training from a journeyman, or more experienced, meat cutter. submitted Milanes's claim to the jury on a general negligence Journeyman meat cutters were supposed to train apprentices theory rather than a premises liability theory. We overrule on the proper operation of the store's meat-cutting equipment, these issues because (1) the Supreme Court of Texas has held including the Biro brand bone-in band saw at issue in this that a non-subscriber employer in Texas owes continuous, appeal. The journeyman meat cutter was also expected to non-delegable duties to its employees separate and distinct train the apprentice in the safety measures that needed to be from those owed to an invitee on the premises; and (2) taken while using that equipment. Milanes eventually became Milanes alleged, and legally sufficient evidence showed, that a journeyman meat cutter. Kroger breached those duties.

*2 Milanes testified that he received a great deal of his meat-

Kroger asserts in its third and fourth issues that the evidence is cutting training from Matt Anderson, a journeyman meat legally and factually insufficient to support the jury's findings cutter at the Kroger store in Montrose. While Milanes testified that Kroger's negligence proximately caused Milanes's injury that he believed Anderson did a good job training him, he also and that he suffered past and future loss of earning capacity testified that he was not taught by anyone at Kroger to use the as a result of the injury. We overrule these issues because band saw blade guard, which both the saw manufacturer and the record on appeal contains legally and factually sufficient the Occupational Safety and Health Administration (OSHA) evidence of both proximate cause and loss of earning require to be used at all times while cutting meat with the capacity. saw. 1 Indeed, Milanes testified that he was not even aware that the bone-in band saw had a blade guard; instead, he was In its fifth issue, Kroger contends that the trial court abused its taught the blade guard was a guide used to line the meat up discretion when it admitted irrelevant photographs and videos prior to cutting. As a result, Milanes never used the blade that it argues were taken illegally. We overrule this issue guard. Milanes also testified that he was never given Kroger's because the photographs and videos were relevant, Milanes Meat and Seafood Department Safety Manual or the Biro took them while legally on Kroger's premises, and Kroger has band saw's operator's manual. Milanes further testified that not shown that he violated any law while doing so. Finally, the bone-in saw manufacturer's warning labels were not on

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the Post Oak Kroger's saw during the time he worked at the with the saw's blade tension. He went on to explain that if store. the tension is off, it can make the blade dull more quickly.

Quinones explained that a dull blade can cause the meat to jerk or suck the operator's hand into the blade.

B. Problems with Kroger's bone-in band saw were reported prior to the injury. Like Milanes, Quinones testified that he had never seen Milanes and other meat cutters experienced problems with the the operator's manual for the bone-in saw and management bone-in saw prior to Milanes's injury. Milanes testified that never told him that he had to read it before operating the before he was injured, he reported to Kroger management: saw. Quinones also confirmed that there were no warning (1) the saw squealing loudly; (2) the blades dulling very signs or labels on the bone-in saw. Quinones never observed quickly, often within thirty or forty minutes of the blade being inspectors performing regular maintenance on the saw. changed; (3) the saw frequently catching the meat and sucking Instead, Kroger maintenance personnel only came out when it into the blade; (4) the saw being off-balance and shaking a problem was reported. Quinones testified that he was not a frequently; (5) the blade wobbling; and (6) the presence of a trained maintenance person for the bone-in saw, but Kroger lip on the saw table that frequently snagged the meat. Milanes expected him to perform maintenance on the saw. Quinones testified that if he told Adam Bell, another journeyman meat admitted that he had adjusted the tension on the blade and that cutter who also served as a relief meat market manager, about he had also seen Bell working on the saw. a problem, Bell would start tinkering with the saw in an effort to fix the problem. Milanes saw Bell doing maintenance on *3 Barnes confirmed many of the problems mentioned by the saw at least twice a week. Milanes and Quinones. Barnes testified that he saw Bell adjusting the tension on the blade and that Bell would With respect to the saw blade dulling quickly, Milanes grab pliers and attempt to fix any problem reported to him. admitted he had the discretion to change the blade whenever Bames also agreed with Quinones that there was no regular he believed it was necessary. He went on to explain, however, maintenance program for the store's band saws. that Kroger management had asked the meat cutters to be sparing with the blades and to make them last. The evidence Bell testified that he experienced the blade popping off the also revealed that there was a financial incentive for managers saw prior to Milanes's injury. He went on to explain that, in his to come in under budget. Milanes recounted an episode in experience, the blade coming off a band saw was caused by which he had used so many blades on the bone-in saw that the either (1) an accumulation of bone dust and “goop” clogging store's supply was exhausted, thereby angering management.

the blade scrapers; 2 or (2) the blade tension not being set properly. Bell also testified that when a band saw makes a In addition to Milanes, several other Kroger meat cutters loud noise, it means something is wrong with the saw. Bell testified during the trial regarding the pre-accident condition further testified that he had never seen a complete list of steps of the saw and Kroger's handling of maintenance issues.

on how to clean the bone-in saw nor had he seen the operator's These witnesses included William Quinones, Michael manual for the saw.

Barnes, and Bell. Quinones still worked as a Kroger meat cutter at the time of trial. Kroger had terminated Bames prior Bell admitted that he was not certified by the saw to trial for alleged dishonesty. Bell, as mentioned above, was a manufacturer to do maintenance on the saw. Bell testified meat cutter and assistant meat market manager at the Post Oak that, as a journeyman meat cutter, he could change the saw's Kroger. All three testified that there were frequent problems blade and also adjust the tension of the blade but was not with the bone-in saw.

authorized to do more than that. According to Bell, he took the saw apart to clean it, not perform maintenance on it. After he Among the problems Quinones reported to Kroger was shown a photograph that appeared to show him working management were (1) the blade tension was not right; (2)

on the bone-in saw, Bell explained that a Kroger maintenance the blade would occasionally pop off of the saw; (3) the saw person had told him that there was a nut on the saw that table was wobbly; and (4) the blade dulled quickly, requiring if it became loose, it could cause the blade to get out of frequent blade changes. According to Quinones, management adjustment and possibly even pop off. Bell explained that he could not get the problems with the saw fixed before Milanes's was attempting to adjust that nut when the photograph was injury. Quinones also explained that a band saw making a loud squealing noise can indicate that there is a problem

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taken. Bell then denied that he was doing anything improper there. At the time of trial, Milanes was still experiencing pain when the photograph was taken. severe enough that he had to take pain medication frequently.

Bell testified that he did not recall any particular problems Milanes reported that the loss of his fingers had adversely with the bone-in saw prior to Milanes's injury. In Bell's impacted his ability to participate in physical activities such opinion, there would have to be something very wrong with a as rock climbing, basketball, football, dodge ball, running band saw for the blades to dull within thirty to forty minutes with his dog, and lifting weights at the gym. The injury also of being changed. Bell went on to state that dull blades make affected his ability to drive his standard transmission car. it more likely that the meat will jump while being cut. Bell Milanes reported that he was unemployed at the time of trial. also did not recall any feedback from Kroger management Milanes testified that he had tried two different jobs after about changing saw blades too frequently or any request to he was terminated by Kroger, but he had been unsuccessful keep costs down by not changing the blades out as often as a because both jobs required manual dexterity. Milanes also meat cutter believed necessary. testified that all of his prior job experience had involved manual labor, and he could no longer do that type of work.

C. Milanes is seriously injured while cutting meat with Milanes offered evidence that after the accident, he the saw. experienced severe anxiety, depression, insomnia, as well as At the time of his injury, Milanes had nearly completed his nightmares about cutting off his fingers. Milanes twice went eight-hour shift. Milanes testified that even though it was the to the hospital thinking he was experiencing a heart attack. end of his shift, he was not tired and was attending to the task Doctors diagnosed both episodes as anxiety attacks, not heart of cutting meat just as closely as he had been at the beginning attacks. Milanes also experienced feelings of anger because of his shift. Milanes also testified that he had the meat seated the meat department personnel had complained that the boneproperly on the saw table prior to the injury. Milanes observed in saw was not working properly prior to his injury. Milanes that the blade seemed pretty dull, but he decided not to change eventually went to see a psychologist. Once Milanes returned the blade. According to Milanes, the saw was making a loud to work at the Post Oak Kroger, he experienced anxiety noise that evening, and the table was still wobbly. Milanes when he was around the meat saws. Milanes's psychologist also noticed that the lip was still present on the saw table. recommended that he be kept away from the saws while he Milanes did not report any of these problems to management was working. that evening because he had reported them previously and the problems were not addressed.

D. Milanes returns to work on light duty and Kroger *4 Milanes was cutting a slab of meat into individual steaks terminates his employment. and was about three-fourths of the way through the slab. Milanes was earning $16.69 per hour when he was injured. Milanes is right-handed, and he estimated that his right hand He returned to work several months after the accident at that was about six inches from the blade before the accident same wage. Milanes was initially placed on light duty in the occurred. According to Milanes, the accident happened so fast meat department when he returned to work. Milanes testified that he did not see exactly what happened. Milanes testified that he had no specific job duties while on light duty and that he believed the dull blade caused the meat to jump, or flip frequently spent his time doing little more than talking to over, pulling the fingers of his right hand into the blade. customers. Kroger began asking Milanes to resume cutting meat about a month after he returned to work but while he The saw blade amputated parts of three fingers from was still on light duty. Kroger made this request even though Milanes's right hand. Milanes was taken to the hospital, Milanes's doctors had ordered that he not be required to cut where he underwent surgery to reattach the severed fingers. meat at that point in time. Kroger asked Milanes to return to The surgery was unsuccessful. Milanes later underwent meat cutting several times. two additional surgeries to cover exposed bone. After the surgeries, Milanes underwent extensive physical therapy and Milanes was to return to full duty with no restrictions on testified that he continued to experience a great deal of pain October 21, 2011. The day before, Bell, as he was leaving in the areas of the amputations. Milanes also testified that he work, instructed Milanes to clean the meat department cooler. experienced the phantom sensation that his fingers were still Milanes explained that an industrial hose and scalding hot water were used to clean the meat department cooler and

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saws. Milanes picked up the hose and noticed that it had a Ryan obtained a copy of the operator's manual for the type of leak. Milanes also saw that a new hose was laying nearby, so bone-in saw used at the Post Oak Kroger. The manual states he called the store manager, William Underwood, and asked that the saw's blade guard must be kept within one-half inch if Underwood could send someone to change out the hoses. of the meat being cut. According to Ryan, if the blade guard Underwood told Milanes to do it himself. Milanes testified is adjusted to within one-half inch of the meat, and the meat that he responded: “[C]an we have somebody else? And he suddenly jumps or rolls, the guard will prevent the operator's said, no. And before I could say anything else, he started hand from contacting the blade. The manual also requires that yelling and saying it's not a light duty issue. Anything—I all warning labels be kept on the saw and replaced promptly didn't even say that. And I said, well, it is kind of a light duty if any come off. The manual also provides that if the saw is issue. And he said I'll be back there in a minute.” Milanes not working properly, it should be taken out of service until testified that he did not believe the task of changing out the it can be repaired. hoses was within his job duties at that point in time. Milanes explained that he was still on light duty, his hand was still Ryan inspected the bone-in saw approximately one year after hurting a great deal, and changing out the hose required the Milanes's injury. Ryan discovered that most of the saw's person to use pliers and a wrench, tasks he did not think he warning labels were missing. 3 Ryan also found the blade should do while his hand was still hurting. guard inoperable. He concluded the guard was frozen in position as a result of the accumulation of either rust or *5 When Underwood arrived, he asked Milanes why he “goop” generated by the sawing of meat. The blade guard could not change out the hose. Milanes responded that he finally moved when he applied fifty pounds of pressure. Ryan was not going to do it. Milanes testified that he did not want went on to testily that the guard remained very difficult to to say in front of other employees that he was physically move even after he broke it free. unable to change out the hose, but that Underwood was aware he was still on light duty. When Milanes continued Ryan took several videos during his inspection. One video to refuse to change out the hose, Underwood terminated showed Bell cutting meat on the bone-in saw. Ryan observed him for insubordination. Milanes admitted that he never told that Bell did not use the blade guard while cutting the meat Underwood in front of other people that he was physically and that the guard was at least four inches above the level of unable to perform the task of changing out the hose. the meat throughout the video.

Ryan opined that if the bone-in saw's blade guard was not E. Mechanical engineering experts testify regarding saw operational on the day of Milanes's injury, the saw should operation and maintenance and the cause of Milanes's not have been in service. Ryan then opined that if the saw injury.

had been taken out of service, Milanes would not have been At trial, mechanical engineer John Ryan testified on behalf injured. He went on to opine that if Kroger had followed of Milanes. According to Ryan, OSHA standards require OSHA's standards and the requirements set forth in the an employer to provide a safe workplace. OSHA also operator's manual, Milanes also would not have been injured.

has a general machine guarding standard that requires any hazardous point of operation to be guarded. Additionally, Ryan examined the saw's blade tension during his inspection.

OSHA had specific standards for the operation of band saws Ryan found numerous scratch marks on the inside of the saw such as the bone-in saw at issue in this case. OSHA, according housing. Ryan explained that the scratch marks indicate the to Ryan, has three primary concerns with the operation of blade had popped off repeatedly and hit the metal housing.

band saws. First, OSHA requires that each band saw have an Ryan opined that this type of contact with the metal housing operational blade guard. Second, OSHA emphasizes that a can dull the blade.

band saw's blade tension must be properly set. Finally, OSHA requires employers to have a training program in place so *6 Ryan then explained that improper blade tension can that employees learn how to operate a band saw safely. Ryan also cause a wandering cut. According to Ryan, when a blade explained that blade tension is important for the safe operation is under-tensioned, it can cause the blade's cutting path to of band saws because if the tension is not set correctly, the wander, which can lead to force being applied to the meat blade can pop off the saw.

sideways. This in turn increases the possibility that the saw will bind in the meat or the bone, causing the meat to be

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thrown or to roll. Ryan added that this possibility increases if Grubbs next covered the importance of a regular inspection the blade is also dull. Ryan calculated how much force this and maintenance program for band saws. Grubbs testified it saw would apply to an operator's hand and found it reasonable is vital for an employer to have this type of program in place that the saw could cause the meat to roll. because it ensures that the band saws are properly maintained.

Grubbs agreed that it was Kroger's responsibility to keep the Ryan next addressed the loud screeching sound the bone-in bone-in saw in good working order. Grubbs also opined that saw exhibited. Ryan opined that the noise was created by the an important part of an inspection and maintenance program blade rubbing at high speed against something, possibly the is having properly trained and qualified personnel performing blade scrapers. Blade scrapers are designed to remove meat the inspections and maintenance on a band saw. and other debris from the blade to keep the blade clean and operational. Ryan testified that if the blade is rubbing against Grubbs testified again during Kroger's case. Grubbs one of the blade scrapers, it can cause the blade to dull at a discovered during his investigation that it was the Kroger faster rate than normal. meat cutters' habit not to use the blade guard. Grubbs then opined that because a piece of meat may vary in its height, Finally, Ryan discussed Kroger's maintenance records for the it would be unrealistic, and ridiculous, to expect the meat bone-in saw. Ryan asked to review all maintenance records cutters to adjust the blade guard to within one half inch of the for the saw. The first maintenance record he received from top of the meat before each cut. Grubbs then opined that the Kroger was dated six days after Milanes's injury. Ryan also blade guard, even if it was nonoperational, was not a factor saw other post-injury records but he never received any in Milanes's accident. Finally, Grubbs testified that during his maintenance records pre-dating the injury. Both Underwood, inspection of the bone-in saw, he did not see any defects that the Post Oak Kroger store manager, and the primary Kroger would explain Milanes's accident. employee charged with maintenance on the saw, Brent Nixon, confirmed the lack of any pre-injury maintenance records for the bone-in saw. Neither could explain the lack of records. F. Kroger employees testify regarding saw operation and maintenance.

Milanes called Kroger's mechanical engineering expert, *7 Kroger presented the testimony of several employees Thomas Grubbs, to testily as an adverse witness. Grubbs during the trial. Underwood, the top manager at the Post inspected the bone-in saw two years after Milanes's injury. Oak Kroger, was one of them. Underwood initially testified According to Grubbs, a band saw's primary safeguard for regarding Kroger's policies and procedures. When he was operator safety is an adjustable blade guard. The blade guard shown Kroger's Meat/Seafood Department Safety Manual, on the bone-in saw was not operational when he inspected Underwood could not locate the band saw maintenance and it, however. Grubbs testified that a band saw should not be inspection program. Underwood then admitted that he did not operated if the blade guard is in the raised position. know for sure whether Kroger had a written policy regarding inspection and maintenance of those saws. According to Grubbs also testified regarding the importance of the Underwood, only Kroger maintenance personnel should work manufacturer's manual for the saw. Grubbs stated that anyone on the band saws. Expanding on that, Underwood testified operating a band saw should read the operator's manual that the only thing meat cutters are authorized to do to the first. He then testified that it is an employer's duty to train saws is change the blades. If anything else needs attention, employees who will use a band saw based on the operator's the meat cutter should notify store management, who would manual. Grubbs testified that he believed the operator's then call in a service person. manual for a band saw should be followed. He then opined that anyone not adequately trained on the operation of a Underwood denied being personally aware of any preband saw should not use it. Grubbs also opined that it was injury safety complaints about the bone-in saw, including important for an employer using band saws to have written complaints about the saw's blades dulling too fast. safety policies and procedures in place. Grubbs explained that Underwood explained that he was not the only manager at written safety policies are important so employees know what the store and the complaints could have been addressed to they are supposed to do, and if they have questions, they know another manager. Underwood then testified that there should where to find the answers. be a record of any maintenance or repairs performed on the store's saws. Underwood was unable to explain why there

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were no maintenance records for the bone-in saw predating been certified by Biro to perform maintenance on Biro saws. Milanes's injury. Nixon denied being aware of any problems with the bone-in saw before the accident. He also did not recall Milanes telling Matthew Anderson is a journeyman meat cutter and Kroger him that the bone-in saw needed repairs that were not being meat market manager. Anderson worked at the Post Oak made. Nixon also had no explanation for the lack of repair Kroger about a year before Milanes's accident and therefore and maintenance records predating Milanes's injury. Nixon had no knowledge of the bone-in saw's condition on the day insisted that maintenance was done on the bone-in saw prior of Milanes's injury. Among other subjects, Anderson testified to Milanes's injury and that there were records of that work. about cutting meat with a band saw. According to Anderson, a blade coming off the saw is not uncommon. Anderson *8 Nixon was the facility engineer sent by Kroger to had also experienced meat jumping or rolling. He explained investigate the band saw several days after Milanes was that meat jumping is unpredictable but certain circumstances, injured. Nixon testified that he checked all aspects of the saw such as dull blades, increase the possibility it will happen. thoroughly, and as a final check he turned the saw on and Anderson testified that for a blade to dull in thirty to forty then beat the moving band saw blade with a broom to “make minutes, “the saw would have to be so out of whack, [he did sure [the blade was] not going to come off.” Nixon reported not] even see how you could use it.” Anderson testified that that the only problem his investigation revealed was the lip if a band saw is making a loud noise, it is a sign that it needs on the cutting table, which he repaired. Nixon testified he was maintenance or repair. unable to find anything that would explain the accident.

Anderson also testified regarding Kroger's policies and procedures regarding band saws. He admitted that he was G. The trial court signs a final judgment based on the never shown the operator's manual for the bone-in saw and jury's verdict in favor of Milanes. did not know whether Kroger has a policy prohibiting workers At the conclusion of the evidence, the trial court proposed to from operating a meat saw without a blade guard in place. submit the case to the jury on an ordinary negligence theory. Anderson went on that when he trained people to operate a Kroger objected to the trial court's proposed jury charge and meat saw, he told them to use the blade guard and adjust it argued the case should be submitted to the jury on a premises above the meat for safety reasons. He then admitted, however, liability theory. The trial court overruled Kroger's objection that he would see people cutting meat without using the blade and rejected its proposed premises liability question. The guard. jury subsequently found Kroger liable and awarded Milanes damages totaling $1,093,440.89. The trial court, after Javier Duran was the meat market manager for the Post Oak crediting Kroger for the amount of medical expenses and Kroger when Milanes's injury occurred. Duran testified that wages it had already paid, signed a final judgment awarding he was taught to use the blade guard during his training. Duran Milanes $1,016,809.10 plus pre-judgment and post-judgment then admitted that the blade guard was not really used by the interest. This appeal followed. meat cutters at the Post Oak Kroger but was just left in the same position. Duran denied that Milanes ever complained to him about the bone-in saw not working properly or about ANALYSIS the blades dulling too fast. He also denied telling Milanes to be conservative when changing blades. Duran admitted I. The jury was properly charged on a negligence theory that meat jumps occasionally while it is being cut. According of liability. to Duran, meat jumping is generally unpredictable, but dull Kroger argues in its first two issues that the trial court erred blades make it more likely to occur. Duran went on to explain when it submitted the case to the jury under a negligence that a meat cutter should change the blade before it gets so theory of liability. According to Kroger, it is “well-settled dull that it will lead to meat jumping. that to state a general negligence claim [against a landowner], there must be affirmative contemporaneous conduct by the Brent Nixon was the primary Kroger facility engineer owner at the time of the incident which led to the plaintiff's responsible for maintenance at the Post Oak Kroger at injury.” Kroger contends that regardless of the theory of the time Milanes was injured. Nixon's duties included liability Milanes pled, Texas law and the evidence introduced maintenance on the Biro band saw even though he had not at trial established that the only duty it owed Milanes was

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that of a premises owner. As a result, Kroger argues Milanes of a common law negligence claim.” Id. (citing Tex. Lab. was limited to a premises liability theory of recovery. Given Code Ann. § 406.033(d)); Amigos Meat Distributors, L.P. that Milanes did not submit such a theory to the jury, Kroger v. Elizondo, No. 01–10–00867–CV, 2011 WL 5026227, at concludes it is entitled to a take-nothing judgment. We *2 (Tex.App.–Houston [1st Dist.] Oct. 20, 2011, no pet) disagree because under supreme court precedent, Kroger also (mem.op.). To establish negligence, a party must establish a owed Milanes duties of care as his employer. duty, a breach of that duty, and damages proximately caused by the breach. Austin v. Kroger Texas, L.P., No. 14–0216, ––– S.W.3d ––––, ––––, 2015 WL 3641066, at *12 (Tex.

A. Standard of review June 12, 2015); Kroger Co. v. Elwood, 197 S.W.3d 793, 794 [1] [2] A trial court must submit in its charge to the jury (Tex.2006). all questions, instructions, and definitions that are raised by the pleadings and the evidence. SeeTex. R. Civ. P. 278; E.I. [8] [9] [10] The supreme court has held that employers DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 56 in Texas owe certain continuous, non-delegable duties to (Tex.App.–Houston [14th Dist.] 2014, pet. dism'd) (citing their employees. Farley v. MM Cattle Co., 529 S.W.2d 751, Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663–64 754 (Tex.1975) (abrogated on other grounds byParker v. (Tex.1999)). The parties have the right to be judged by a Highland Park, Inc., 565 S.W.2d 512 (Tex.1978)); seeAustin, jury properly instructed in the law. Crown Life Ins. Co. v. ––– S.W.3d at ––––, 2015 WL 3641066, at *15 (stating Casteel, 22 S.W.3d 378, 388 (Tex.2000). The goal therefore, that employer may owe duties to employee in addition to is to submit to the jury the issues for decision logically, those a landowner owes an invitee, including duties to train simply, clearly, fairly, correctly, and completely. Roye, 447 and supervise). Among these are the duties to (1) furnish S.W.3d at 56. To achieve this goal, trial courts enjoy broad a reasonably safe place to work, (2) warn employees of discretion so long as the charge is legally correct. Id. We hazards of their employment that are not commonly known review whether a challenged portion of a jury charge is legally or already appreciated, (3) supervise employees' activities, correct using a de novo standard of review. Id. (citing St. (4) hire competent co-employees, (5) furnish reasonably safe Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex.2002)). In instrumentalities with which to work, and (6) provide safety making this determination, we examine the allegations and regulations. Cent. Ready Mix Concrete Co. v. Islas, 228 proof introduced at trial. Oncor Electric Delivery Co., LLC v. S.W.3d 649, 652 & n. 10 (Tex.2007); Farley, 529 S.W.2d at Murillo, 449 S.W.3d 583, 592 (Tex.App.–Houston [1st Dist.] 754. An employer must also train employees in the safe use 2014, pet. filed) (en banc). and handling of products and equipment used in and around an employer's premises or facilities. Austin, ––– S.W.3d at ––––, 2015 WL 3641066, at *15; Aleman v. Ben E. Keith Co., B. The pleadings and evidence support the trial court's 227 S.W.3d 304, 311 (Tex.App.–Houston [1st Dist.] 2007, submission of the negligence theory rather than a no pet.). An employer must exercise ordinary care, based on premises theory.

standard negligence principles, in carrying out these duties.

*9 [3] [4] [5] The Texas Workers' Compensation Act Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996); Werner permits private Texas employers to elect whether to subscribe v. Colwell, 909 S.W.2d 866, 869 (Tex.1995); seeElwood, 197 to workers' compensation insurance. Tex. W. Oaks Hosp., S.W.3d at 794 (“An employer has a duty to use ordinary care L.P. v. Williams, 371 S.W.3d 171, 186 (Tex.2012) (citing in providing a safe workplace.”).

Tex. Lab. Code Ann. § 406.002(a) (West 2015)). If an employer elects to subscribe, then its employees generally are Milanes alleged and presented evidence during trial that prohibited from suing it and must instead pursue their claims Kroger breached some of these duties. This evidence through an administrative agency. Id. In that administrative includes, but is not limited to: the failure to provide proceeding, employees need prove only that they were injured reasonably safe equipment or instrumentalities necessary for in the course and scope of their employment. Id.

the performance of Milanes's job; the failure to provide safety regulations related to Milanes's work; and the failure [6] [7] If an employer elects to be a non-subscriber to to instruct or train employees in the safe use and handling workers' compensation insurance, as Kroger has, then it is of equipment—specifically, the Biro band saw. SeeAustin, subject to suits at common law for damages, to which it can ––– S.W.3d at ––––, 2015 WL 3641066, at *15. Milanes raise only limited defenses. Id. In that situation, an employee testified that he was never provided the operator's manual for injured on the job must file suit and “prove the elements

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the Biro saw and he was not trained to use the adjustable In its third issue, Kroger attacks the legal and factual blade guard on the saw while cutting meat. In fact, he testified sufficiency of the evidence of causation. In its fourth issue, he was not even aware that the saw was equipped with a Kroger contends Milanes introduced legally and factually blade guard at all. In addition, both expert witnesses testified insufficient evidence that his earning capacity was negatively that the band saw should not be operated when the blade impacted by his injury. We address each contention in turn. guard is not used or operational. The evidence also includes testimony from several witnesses that, prior to Milanes's injury: (1) the bone-in saw had an inoperable blade guard; A. Standard of review (2) the saw was experiencing continuing problems such as *11 When an appellant attacks the legal sufficiency of an rapidly dulling blades and improper blade tension; and (3) adverse finding on an issue on which it did not have the Kroger was unable to fix the problems yet did not take the burden of proof, the appellant must demonstrate on appeal saw out of operation. Because Milanes pled and introduced that there is no evidence to support the adverse finding. legally sufficient evidence demonstrating Kroger negligently Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC, breached duties it owed to him as an employee, we conclude 403 S.W.3d 547, 550 (Tex.App.–Houston [14th Dist.] 2013, that the trial court did not err when it submitted the negligence no pet.). In conducting a legal sufficiency review, we must theory of liability to the jury. Seeid. ––––, 2015 WL 3641066, consider the evidence in the light most favorable to the at *16 (“We therefore reject Kroger's argument that its lack of appealed finding and indulge every reasonable inference any negligent activity contemporaneous with [the plaintiff's that supports it. Id. at 550–51 (citing City of Keller v. injury] defeats [the plaintiff's] instrumentalities claim as a Wilson, 168 S.W.3d 802, 821–22 (Tex.2005)). The evidence matter of law.”); see alsoAmigos Meat Distributors, L.P., is legally sufficient if it would enable reasonable and fair- 2011 WL 5026227, at *3 (affirming judgment signed after minded people to reach the decision under review. Id. at 551. jury found non-subscribing employer negligent based on This Court must credit favorable evidence if a reasonable evidence that employer failed to provide operator's manual trier of fact could, and disregard contrary evidence unless a for Biro band saw to employee meat cutter and also failed to reasonable trier of fact could not. Id. The trier of fact is the train employee adequately on safe operation of saw). sole judge of the witnesses' credibility and the weight to be given their testimony. Id.

*10 [11] The cases that Kroger cites in urging that its only duty to Milanes was that of a premises owner This Court may sustain a legal sufficiency (or no evidence) do not change this analysis. Most of Kroger's cases are issue only if the record reveals one of the following: (1) the distinguishable because they did not involve the employer/ complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the employee relationship. 4 The remainder of Kroger's cases only evidence offered to prove a vital fact; (3) the evidence involved employees injured by a premises condition or by offered to prove a vital fact is no more than a scintilla; or (4)

conduct of a third party, neither of which is at issue. 5 Thus, as the evidence established conclusively the opposite of the vital Kroger conceded at oral argument, none of these cases control fact. Id. Evidence that is so weak as to do no more than create the outcome here. 6 a mere surmise or suspicion that the fact exists is less than a scintilla. Id.

The supreme court recently confirmed that, “[a]s [plaintiff's] employer, Kroger owed [him] duties in addition to its In reviewing the factual sufficiency of the evidence, we must premises-liability duty and its duty not to engage in negligent examine the entire record, considering both the evidence activities, including the duty to provide [the plaintiff] with in favor of, and contrary to, the challenged findings. necessary instrumentalities.” Austin, ––– S.W.3d at ––––, SeeMaritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 2015 WL 3641066, at *15. We therefore overrule Kroger's 406–07 (Tex.1998); Cain v. Bain, 709 S.W.2d 175, 176 first two issues on appeal. (Tex.1986). When a party challenges the factual sufficiency of the evidence supporting a finding for which it did not have the burden of proof, we may set aside the verdict only if it II. Milanes introduced legally and factually sufficient is so contrary to the overwhelming weight of the evidence evidence that Kroger's negligence proximately caused as to be clearly wrong and unjust. SeeEllis, 971 S.W.2d at Milanes's injuries and that he suffered lost earning 407; Barnhart v. Morales, 459 S.W.3d 733, 745 (Tex.App.– capacity as a result of those injuries. Houston [14th Dist.] 2015, no pet.). The amount of evidence

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necessary to affirm is far less than the amount necessary the primary Kroger employee charged with maintaining and to reverse a judgment. Barnhart, 459 S.W.3d at 745. This repairing the store's bone-in band saw, was not certified Court is not a factfinder. Id. (citing Ellis, 971 S.W.2d at by the saw's manufacturer. The jury also heard evidence 407). Instead, the jury is the sole judge of the credibility of that Bell, a meat cutter and relief meat market manager, the witnesses and the weight to be given their testimony. Id. frequently attempted to repair the saw when employees We may not, therefore, pass upon the witnesses' credibility reported problems to him despite Kroger's stated policy or substitute our judgment for that of the jury, even if the that the only thing meat cutters should do to a band saw evidence would also support a different result. Id. If we was change out a dull blade. Other evidence of improper determine the evidence is factually insufficient, we must maintenance includes the lack of maintenance records and detail the evidence relevant to the issue and state in what the meat cutters' testimony that problems with the saw were regard the contrary evidence greatly outweighs the evidence reported but never fixed. in support of the verdict; we need not do so when affirming a jury's verdict. Id. (citing Gonzalez v. McAllen Med. Ctr., Inc., Evidence of improper maintenance also included that the 195 S.W.3d 680, 681 (Tex.2006) (per curiam)). blade guard on the saw was inoperable and a loud noise emanated from the saw. Witnesses testified the noise could be caused by the blade hitting the blade scrapers or by B. Sufficient evidence supports the jury's finding that incorrect blade tension. Numerous witnesses testified that Kroger's negligence proximately caused Milanes's improper blade tension was a frequent problem encountered injury. while using the bone-in saw. Ryan, Milanes's mechanical [12] [13] To prevail on a negligence claim, a plaintiff must engineering expert, testified that improper blade tension can prove not only that the defendant breached a duty, but also cause a wandering cut, increasing the possibility that the blade that he sustained damages proximately caused by that breach. will bind in the meat and cause the meat to roll. Torres v. Tessier, 231 S.W.3d 60, 63 (Tex.App.–Houston [14th Dist.] 2007, no pet.)(citing D. Houston, Inc. v. Love, Evidence showed that if the tension on the blade is incorrect, 92 S.W.3d 450, 454 (Tex.2002)). Proximate cause consists it can cause the blade to pop off, resulting in the blade of two elements: cause in fact and foreseeability. Del Lago hitting the metal saw housing. Witnesses testified that they Partners, Inc., 307 S.W.3d at 774. had experienced the blade popping off this saw, as confirmed by scratch marks on the inside of the housing. Ryan testified [14] [15] [16] [17] Cause in fact means that thethat frequent contact with the metal saw housing results in the defendant's act or omission was a substantial factor in rapid dulling of the saw's blade. Witnesses also testified that bringing about the injury, which would not otherwise have the bone-in saw's blade dulled at a very rapid rate, often within occurred. Western Investments, Inc. v. Urena, 162 S.W.3d thirty to forty minutes of putting on a new blade. Kroger 547, 551 (Tex.2005). Cause in fact is not shown if the witnesses confirmed that if the blades were dulling at such a defendant's conduct did no more than furnish a condition fast pace, something was very wrong with the saw. that made the injury possible. Id. The second element of proximate cause, foreseeability, requires that a person of Every meat cutter who testified during the trial agreed that ordinary intelligence should have anticipated the danger meat sometimes jumps or rolls when it is being cut, and that created by the negligent act or omission. Doe v. Boys Clubs of it is normally unpredictable when jumping or rolling will Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). These happen. Several testified, however, that the probability of elements cannot be established by mere conjecture, guess, meat jumping or rolling increases when the saw's blade is dull. or speculation. Id. at 477. Proximate cause may, however, Milanes himself testified he reported to Kroger management be established by direct or circumstantial evidence and the that the saw was frequently catching the meat and sucking it reasonable inferences drawn from that evidence. Pilgrim's into the blade. He also testified that he noticed the blade was Pride Corp. v. Smoak, 134 S.W.3d 880, 889 (Tex.App.– dull the day of his injury. Although Milanes had the discretion Texarkana 2004, pet. denied) (citing McClure v. Allied Stores to change out a dull blade when he deemed it necessary, of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980)). he testified that he was encouraged by store managers to be conservative when using blades and that there was a financial *12 [18] As detailed in the background section, Milanes incentive for those managers to come in under budget. 7 introduced evidence that Kroger failed to maintain the Biro band saw properly. This includes evidence that Brent Nixon,

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[19] Apart from improper maintenance and problems with in the accident. Id. To support an award of damages for blade tension and dulling, there was also evidence that Kroger lost earning capacity, the plaintiff generally must introduce failed to provide safety regulations and train Milanes and evidence from which a jury may reasonably measure in other employees properly on the safe operation of the Biro monetary terms his earning capacity prior to injury. Id. at band saw—particularly that the blade guard should be used at 435–436. Specific proof of actual earnings and income are all times. Milanes testified that he was not even aware of the evidence of lost earning capacity. Id. at 436. existence of a blade guard and was not using it on the day of his injury. There was also evidence that (1) it was the common The jury heard evidence regarding Kroger's treatment of practice of Kroger's meat cutters to not use the blade guard, Milanes after his injury. This includes testimony that as soon and (2) Kroger managers were aware of this practice but chose as four weeks after his accident, Kroger began pressuring to do nothing about it. Both expert witnesses testified that a Milanes to return to work. The record also contains evidence band saw should not be used without the blade guard. Ryan that once Milanes returned, he was put back to work in explained that the accident would not have occurred, and the meat department in close proximity to the department's Milanes would not have been injured, if the blade guard had band saws despite his doctors' concerns that he should not been used as required by the operator's manual. be required to work around the bone-in saw. The jury also heard Underwood's testimony that Milanes could possibly *13 For these reasons, we conclude there is legally and transfer out of the meat department, but his pay rate would factually sufficient evidence that Kroger's breach of the duties be different if he did so. There was also evidence that once to provide safe equipment and safety regulations and to train Milanes returned to work on light duty, he had no specific job employees in the safe use of equipment proximately caused duties, but instead did little more than talk to customers. Milanes's injury. We overrule Kroger's third issue on appeal.

The jury heard the testimony addressing Milanes's termination, including Underwood's testimony that Milanes C. Sufficient evidence shows that Milanes lost earning was fired for insubordination when he refused to carry out capacity as a result of his injury. an order to change the meat department hose. They also [20] In its third issue, Kroger contends Milanes presented heard Milanes's testimony that he was still on light duty and legally and factually insufficient evidence of lost earning experiencing pain in his right hand at that time. Although capacity resulting from the amputation of three fingers on his Milanes admitted that he did not tell Underwood that he was dominant right hand while he was cutting meat with Kroger's physically incapable of doing the task, he did tell Underwood bone-in saw. In making this argument, Kroger points out that that his refusal was a light duty issue. As the trier of fact Milanes returned to work at the same Kroger store following and sole judge of the credibility of the witnesses, the jury his injury at the same rate of pay. It goes on to argue that could have disbelieved Underwood's testimony that Milanes the only reason he lost this job was the result of his own was fired for insubordination, believed that Milanes refused insubordination, and thus there is no evidence of lost earning to change out the hose due to the condition of his injured capacity as a result of his injury. Kroger makes no other hand and sufficiently informed Underwood of that fact, and argument about the insufficiency of the evidence supporting found that the termination was related to Milanes's injury. the jury's award of $151,744 in damages for lost earning Kroger has not briefed any challenge to Milanes's testimony capacity. regarding his post-termination inability to secure other long-

term employment due to his injury, nor has it challenged [21] [22] [23] [24] [25] Loss or impairment of earning the testimony of Milanes's expert economist quantifying capacity is a recognized element of damages in a personal Milanes's loss of past and future earning capacity. 8 injury case. Strauss v. Cont'l Airlines, Inc., 67 S.W.3d 428, 435 (Tex.App.–Houston [14th Dist.] 2002, no pet.). Earning *14 We hold there is legally and factually sufficient capacity has been defined as the ability and the fitness to evidence supporting the jury's finding that Milanes's loss of work in gainful employment for any type of compensation, earning capacity resulted from his work-related injury. We including salary, commissions, and other benefits. Id. at 435 overrule Kroger's fourth issue on appeal.

n. 2. The plaintiff has the burden of proving loss of earning capacity. Id. The measure of this type of damage is the plaintiff's diminished earning power or earning capacity, in the past or future, directly resulting from the injuries sustained

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Milanes was injured. We address Kroger's second contention III. The trial court did not abuse its discretion when first. it admitted Milanes's post-accident photographs and videos into evidence. Kroger asserts in its fifth issue that the trial court abused its 1. The challenged photographs and videos were relevant. discretion when it admitted into evidence five photographs *15 [28] Relevant evidence is evidence that has a tendency (Plaintiff's Exhibits 5, 6, and 7) and three videos (Plaintiff's to make the existence of any fact that is of consequence Exhibits 10, 12, and 13) taken by Milanes after he returned to the determination of the action more probable or less to work. 9 According to Kroger, the trial court should have probable than it would be without the evidence. Tex. R. Evid. excluded the photographs and videos because they were taken 401. Relevant evidence is generally admissible, irrelevant illegally and also because they were not relevant given that evidence is generally inadmissible. Id. at 402. Facts existing all were taken after the accident. both before and after an event in controversy may be relevant to establishing the cause of that event. City of Houston v. Leach, 819 S.W.2d 185, 191 (Tex.App.–Houston [14th Dist.]

A. Standard of review 1991, no writ). [26] The decision to admit or exclude evidence lies within the sound discretion of the trial court. Bay Area Healthcare [29] [30] [31] [32] [33] Generally, pictures or Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007). A photographs relevant to any issue in a case are admissible. trial court exceeds its discretion if it acts in an arbitrary or Huckaby v. A.G. Perry & Sons, Inc., 20 S.W.3d 194, 209 unreasonable manner or without reference to guiding rules (Tex.App.–Texarkana 2000, pet. denied). When a photograph or principles. Barnhart, 459 S.W.3d at 742 (citing Bowie or video portrays facts relevant to an issue, it is admissible Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002)). When if verified by a witness as being a correct representation of reviewing matters committed to the trial court's discretion, a the facts. Cheek v. Zalta, 693 S.W.2d 632, 635 (Tex.App.– reviewing court may not substitute its own judgment for that Houston [14th Dist.] 1985, no writ). The verifying witness of the trial court. Id. Thus, the question is not whether this must know the object involved and be able to state that the court would have admitted the evidence. Rather, an appellate photograph or video correctly represents it. Id. The fact that court will uphold the trial court's evidentiary ruling if there is the scene or the object portrayed in the photograph or video any legitimate basis for the ruling, even if that ground was not has changed since the time of the event in question in the raised in the trial court. Id. Therefore, we examine all bases litigation does not prevent the admission of the photograph for the trial court's decision that are suggested by the record or video into evidence if the changes are explained in such or urged by the parties. Id. a manner that the photograph or video will help the jury in understanding the nature of the condition at the time of the [27] A party seeking to reverse a judgment based on event at issue. Id. Indeed, the parties' experts inspected the evidentiary error must prove that the error probably resulted saw well after Milanes took the challenged photos and videos, in rendition of an improper judgment, which usually requires and photos and videos from expert Ryan's inspection were the complaining party to show that the judgment turns on the also introduced into evidence. A dispute as to the accuracy of particular evidence excluded or admitted. Id. To determine some part of the photograph or video usually goes only to the whether evidentiary error probably resulted in the rendition of weight of the evidence, not to its admissibility. See id.; see an improper judgment, an appellate court reviews the entire alsoGarza v. Cole, 753 S.W.2d 245 247 (Tex.App.–Houston record. Id. (citing Interstate Northborough P'ship v. State, 66 [14th Dist.] 1987, writ ref'd n.r.e.) (stating that conditions S.W.3d 213, 220 (Tex.2001)). shown in video need not be identical to those at time of event in question for video to be admissible into evidence).

B. Kroger has not shown an abuse of discretion in [34] Plaintiff's Exhibit 5 is a photograph of the Post Oak admitting the challenged photographs and videos. Kroger's bone-in saw wrapped in clear plastic. Plaintiff's Kroger makes two separate arguments in its fifth issue. First, Exhibit 6 contains three photographs of the blade cleaners on it asserts that the challenged photographs and videos should the same bone-in saw. William Quintero, a journeyman meat have been excluded because they were obtained by illegal cutter at the Post Oak Kroger, testified that these photographs means. Second, Kroger contends the photographs and videos fairly and accurately depicted the bone-in saw Milanes was were not relevant because they were taken months after using. Plaintiff's Exhibit 7 is another photograph of the Post

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Oak Kroger's bone-in saw. Milanes testified that he took obtained” objection and admitted the challenged photographs the photograph and that it fairly and accurately depicted the and videos into evidence. Having rejected each argument bone-in saw he used. Because witnesses testified that the raised by Kroger in its fifth issue, we overrule that issue. challenged photographs accurately depicted the bone-in saw, we conclude that the trial court did not abuse its discretion when it overruled Kroger's relevance objections and admitted IV. Kroger has not shown that it was harmed by the trial Exhibits 5, 6, and 7 into evidence. SeeCheek, 693 S.W.2d at court's alleged failure to intervene to remedy perceived 635. juror misconduct.

[37] In its sixth issue, Kroger contends the trial court abused [35] Plaintiff's Exhibit 10 is a 28–second video showing the its discretion when it refused to grant Kroger a new trial based bone-in saw running with a loud noise emanating from it. on the allegation that the trial court failed to intervene timely Milanes testified that Exhibit 10 portrayed the bone-in saw to correct potential juror misconduct. We conclude Kroger is and that the noise heard on the video was the same as the not entitled to a new trial because it has not demonstrated it noise the saw was making when he was injured. Plaintiff's was harmed as a result of any alleged failure to intervene by Exhibit 12 is another brief video. Milanes, who took the the trial court. video, testified that it showed a boneless band saw at the Post Oak Kroger, which was running correctly. The saw Kroger's motion for new trial attached an affidavit from one shown in Exhibit 12 did not emit a loud noise while it was of the jurors in the case. In the affidavit, the complaining running. Plaintiff's Exhibit 13 is a 14–second video of a non- juror stated that after the jury began its deliberations, she operational bone-in saw at the Post Oak Kroger. The video came to believe that some other members of the jury were shows that the blade had popped off the saw. On the video, violating instructions contained in the court's charge. The Milanes says: “once again the saw is broken in the same complaining juror alleged that, during the jury's deliberations, day they said they fixed it.” Milanes testified that the videos an attorney member of the jury offered his own definitions portrayed the same circumstances that were present before of legal phrases and words derived from his own personal he was injured and they would be helpful to the jury during experience as an attorney. The complaining juror also alleged his testimony. We conclude that the trial court did not abuse that a second juror contributed her thoughts based on her its discretion when it overruled Kroger's relevance objections personal experience as a legal assistant. The complaining and admitted the three videos into evidence. SeeCheek, 693 juror did not allege that any outside influence was brought to S.W.2d at 635. bear on the jurors during their deliberations. The complaining juror stated that she asked, through the bailiff, to speak with the trial judge about her concerns; however, the trial judge 2. The challenged photographs and videos were not did not speak with the juror during the remainder of the jury's illegally obtained. deliberations. *16 [36] Kroger also objected to the admission of the photographs and videos based on its contention that they were The jury reached and delivered its 10–2 verdict in favor all taken illegally. Kroger cites no authority supporting its of Milanes. The complaining juror, believing that the position. Cf.Tex. Civ. Prac. & Rem. Code Ann. § 123.002 misconduct she perceived had impacted the jury's verdict, (West 2011) (creating a civil cause of action against a person alleged that she again asked to speak with the trial judge. who intercepts another person's communication); Tex. Code According to the complaining juror, the trial judge was in Crim. Proc. Ann. art. 38.23 (West 2005) (providing that no court at the time, and the juror was told she could wait until evidence obtained in violation of either the constitution or he was finished to speak with him. The complaining juror laws of the United States or the State of Texas “shall be decided to leave the courthouse before the trial judge was able admitted in evidence against the accused on the trial of any to speak with her, however. criminal case.”). Further, we find nothing in the record to suggest that Milanes committed either the offense of criminal During the hearing on Kroger's motion for new trial, the trespass, Tex. Penal Code Ann. § 30.05 (West Supp.2014), trial judge stated that he had addressed with the parties a or the offense of improper photography or visual recording. prior complaint made by this juror following jury selection, Id. § 21.15 (West 2011). We hold that the trial court did but that he was not provided notice of the juror's alleged not abuse its discretion when it overruled Kroger's “illegally request during deliberations. The trial judge found the juror's allegations not credible and denied the motion for new trial.

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(prohibiting a juror from testifying about jury's deliberations unless allegation involves outside influence). Kroger admits [38] Kroger argues it is entitled to a new trial based on there was no outside influence brought to bear on the jury.

judicial misconduct: specifically, the trial court's failure to investigate the complaining juror's allegations that members Instead, Kroger argues that certain jurors violated the trial of the jury had violated the trial court's instructions during court's instructions during the jury's internal deliberations.

their deliberations. To reverse a judgment on the basis of To substantiate this claim, Kroger offers only the affidavit judicial misconduct, a reviewing court must conclude both testimony of a member of the jury regarding deliberations that judicial impropriety occurred and that the complaining party suffered harm. SeeSilcott v. Oglesby, 721 S.W.2d 290, —evidence that Kroger is prohibited from using. 10 See 293 (Tex.1986); Markowitz v. Markowitz, 118 S.W.3d 82, 86 id. Because we (like the trial court) cannot consider the (Tex.App.–Houston [14th Dist.] 2003, pet. denied). Because only evidence offered by Kroger to establish it was harmed we conclude that Kroger has not shown it was harmed as a by the judge's alleged misconduct in failing to address the result of the trial court's alleged failure to intervene to correct jurors' perceived violations during deliberations, we conclude the perceived juror misconduct, we need not decide whether Kroger has failed to show harm. Golden Eagle Archery, Inc. any judicial impropriety occurred, and we therefore express v. Jackson, 24 S.W.3d 362, 370 (Tex.2000) (holding that rules no view on that issue. prevent juror from testifying that jury discussed improper matters during deliberations). Thus, the trial court did not *17 Given that the complaining juror's allegations did not abuse its discretion in denying Kroger's motion for new trial. involve outside influence, Kroger's attempt to show harm We overrule Kroger's sixth issue. through an examination of the jury's discussions during its deliberations is prohibited by both Rule 327(b) of the Texas Rules of Civil Procedure and Rule 606 of the Texas Rules CONCLUSION of Evidence. SeeTex. R. Civ. P. 327(b) (“A juror may not testify as to any matter or statement occurring during the Having overruled each of the issues Kroger raised in this course of the jury's deliberations or to the effect of anything appeal, we affirm the trial court's judgment. upon his or any other juror's mind or emotions as influencing him to assent or dissent from the verdict concerning his mental processes in connection therewith, except that a juror All Citations may testily whether any outside influence was improperly --- S.W.3d ----, 2015 WL 4594098 brought to bear upon any juror.”); Tex. R. Evid. 606(b)

Footnotes 1 Milanes testified that he did not learn that the band saw was equipped with a blade guard until after his injury. Evidence showed that a meat cutter was required to keep the blade guard set to one-half inch above the level of the meat being cut at all times.

2 There are two sets of blade scrapers on the bone-in saw, one above the cutting table and one below. Each set consists of two pieces of metal attached to the saw housing, one on either side of the revolving blade. The blade scrapers are designed to remove from the blade material created by the cutting of the meat. Bell admitted that the blade scrapers had never been changed during his time at the Post Oak Kroger.

3 Ryan explained that he found a couple of warnings still attached to the motor. 4 See, e.g.,Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.2010) (involving suit filed by hotel guest, not employee); In re Texas Dept. of Transp., 218 S.W.3d 74, 75 (Tex.2007) (involving lawsuit against State of Texas arising out of car wreck); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 526 (Tex.1997) (“In this case, we consider the liability of a general contractor and its on-site representative for injuries to an independent contractor's employee.”); Dallas Market Center Development, Co. v. Liedeker, 958 S.W.2d 382, 383 (Tex.1997) (concerning lawsuit filed by delivery person injured while loading flowers onto hotel's elevator) (overruled on other grounds byTorrington Co. v. Stutzman, 46 S.W.3d 829 (Tex.2000)); Keetch v. The Kroger Co., 845 S.W.2d 262, 263 (Tex.1992) (customer, not employee, filed suit for injury sustained on defendant's premises); Foodtown v. Tanguma, No. 01–11–00047–CV, slip op. at 2 (Tex.App.– Houston [1st Dist.] Dec. 22, 2011, no pet.)(same).

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5 See, e.g.,Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 240 (Tex.1955) (employee injured by premises condition rather than instrumentality) (overruled byAustin v. Kroger Texas, L.P., No. 14–0216, ––– S.W.3d ––––, ––––, 2015 WL 3641066, at *12 (Tex. June 12, 2015)); Barton v. Whataburger, Inc., 276 S.W.3d 456, 466–67 (Tex.App.–Houston [1st Dist.] 2008, pet. denied) (plaintiff-employee victimized by third-party criminal act on employer's premises); Allen v. Connolly, 158 S.W.3d 61, 63 (Tex.App.–Houston [14th Dist.] 2005, no pet.)(same).

6 During oral argument, Kroger was unable to identify a case dictating the outcome it seeks in its first issue. Kroger instead asked this Court to change the law. This we cannot do because changing higher-court precedent is not the function of an intermediate court of appeals. SeeDeutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex.App.–Houston [14th Dist.] 2002, no pet.)(“we must follow the Texas Supreme Court's expressions of the law and leave changes in the application of common-law rules to that higher authority”); see alsoEntergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 476 (Tex.2009) (Willet, J., concurring) (“Judges have no authority to second-guess the myriad policy judgments codified in the Workers' Compensation Act”).

7 A non-subscribing employer may not assert any negligence by an employee as a defense. SeeTex. Lab. Code Ann. § 406.033(a) (West 2015).

8 Milanes testified regarding his desire to work, his inability to do manual-labor jobs like those he had been trained to perform, and his departure from a job pulling parts at a warehouse because he kept dropping the parts. His expert, Dr. Donald Huddle, testified regarding Milanes's loss of his Kroger salary ($16.69 per hour) and benefits up to the time of trial. He also testified regarding the present value of the salary and benefits Milanes would lose over his expected future work life, assuming that Milanes would be able to find employment at a lower salary. The jury awarded approximately the amount Dr. Huddle calculated for past lost earning capacity, and less than half of the lowest amount he calculated for future lost earning capacity.

9 In a letter brief filed following oral argument, Kroger identified a sixth photograph, Plaintiff's Exhibit 8, as a photograph it was challenging the admission of on appeal. Kroger did not, however, object to the admission of Exhibit 8 during trial. Kroger therefore has not preserved its complaint regarding the admission of this photograph for appellate review. Tex.R.App. P. 33.1; Grace Interest, L.L.C. v. Wallis State Bank, 431 S.W.3d 110, 122 (Tex.App.–Houston [14th Dist.] 2013, pet. denied).

10 Of course, the juror's allegation that she asked the bailiff for an opportunity to speak to the trial judge about her concerns regarding deliberations is not itself evidence of matter occurring during deliberations, though the trial judge found her allegations not credible. Yet even if we assumed for the sake of argument that the request was made and the trial court should have pursued it, the court would have learned no more than the allegations in the juror's affidavit regarding what occurred in deliberations, which “cannot form the basis of a motion for new trial.” In re Zimmer, Inc., 451 S.W.3d 893, 897 n. 1 (Tex.App.–Dallas 2014, orig. proceeding).

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Lawrence v. Coastal Marine Service of Texas, Inc., 983 S.W.2d 757 (1997)

[3] Appeal and Error Effect of Evidence and Inferences Therefrom on Direction of Verdict In reviewing a directed verdict, appellate court must consider all evidence in the light most favorable to the party against whom the verdict was directed, disregarding all contrary evidence and inferences.

1 Cases that cite this headnote

[4] Appeal and Error Appeal from Ruling on Motion to Direct Survivors of independent contractor's employee, who was Verdict killed in a crane accident, brought negligence and premises In reviewing a directed verdict, appellate court liability suit against crane owner and contractor. The 136th must determine if there is any probative evidence District Court, Jefferson County, Milton Gunn Shuffield, to raise a fact issue. J., directed partial verdict against survivors on premises liability claim, and entered judgment on jury verdict against Cases that cite this headnote survivors on negligence claim. Survivors appealed. The Court of Appeals, Ron Carr, J. (Assigned), held that: (1) question [5] Appeal and Error of whether crane owner in fact retained control over the crane Appeal from Ruling on Motion to Direct was for the jury, but (2) jury instruction on negligence was Verdict not an improper comment on the weight of the evidence or an advisement to the jury of the effect of a prior ruling for the Directed verdict will be held improper if there is owner on a premises liability claim. any evidence in the record of probative force on any theory of recovery.

Reversed and remanded in part, and affirmed in part.

Cases that cite this headnote

[6] Negligence West Headnotes (18) Reasonably Safe or Unreasonably Dangerous Conditions [1] Trial Generally, a premises owner has a duty to use “No” Evidence; Total Failure of Proof reasonable care to keep the premises under his Party is entitled to a directed verdict only when control in a safe condition. there is no evidence to support a material issue.

Cases that cite this headnote Cases that cite this headnote [7] Negligence [2] Trial Persons Working on Property Inferences from Evidence If a premises owner retains/hires an independent Trial court should direct a verdict only when contractor to perform a specific task on the reasonable minds can draw only one conclusion premises, the independent contractor will then from the evidence. owe a duty to use reasonable care to keep the premises under his control in a safe condition.

Cases that cite this headnote

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regarding the crane if given by owner, from Cases that cite this headnote which it could be inferred that their course of business dealings gave owner premises control.

[8] Negligence Cases that cite this headnote Persons Working on Property General rule is that an owner or occupier does not have a duty to see that an independent contractor [12] Negligence performs work in a safe manner. Accidents and Injuries in General Fact that crane owner did not exercise its alleged Cases that cite this headnote control over independent contractor, whose employee was killed in a crane accident, did not [9] Negligence release owner from premises liability regarding Persons Working on Property the employee's death; independent contractor's employees relied on owner to provide good Premises owner may be liable when it retains crane, and owner had responsibility to ensure the right to control some part of independent safe and suitable crane and had basic duty contractor's work, but fails to exercise the to make premises safe for its invitees, which retained control with reasonable care; control, or included duty to warn of dangerous conditions the right to control, when resting with the owner, and hidden defect.

is paramount to recovery.

Cases that cite this headnote Cases that cite this headnote

[13] Trial [10] Negligence Personal Injuries in General Persons Working on Property Jury instruction that, any negligence or gross For premises owner to be liable for failure to negligence of crane owner regarding death exercise with reasonable care retained control of independent contractor's employee in crane over work of independent contractor, right of accident had to “relate to the crane in question as control must be more than a general right to order the [crane owner] was not subject to any OSHA the work to start or stop, to inspect progress or regulations as they pertain to the premises or receive reports, but rather, right of control must safe operation of the project. Further, [owner]

extend to the specific area of operation where had no duty to see that [independent contractor]

the plaintiff's injury allegedly took place; general or its employees performed the work in a safe right to control the entire operation is not enough.

fashion,” was not an improper comment on Cases that cite this headnote the weight of the evidence; nothing in the instructions suggested that the regulations were inapplicable to the owner, to the extent the [11] Negligence regulations applied to the crane itself.

Liabilities Relating to Construction, Demolition and Repair Cases that cite this headnote Question of whether crane owner in fact retained control over the crane, its operations, [14] Negligence movements, and conditions under which it could Miscellaneous Particular Cases operate was for the jury in premises liability Trial suit by survivors of independent contractor's Personal Injuries in General employee, who was killed in a crane accident on the crane owner's premises; record affirmatively Jury instruction that, any negligence or gross reflected that contractor's employees would negligence of crane owner regarding death have followed owner's direction and instructions of independent contractor's employee in crane

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accident had to “relate to the crane in question as jury was instructed that any negligence or gross the [crane owner] was not subject to any OSHA negligence of owner had to relate to the crane regulations as they pertain to the premises or because the owner was not subject to OSHA safe operation of the project. Further, [owner] regulations as they pertained to the premises or had no duty to see that [independent contractor] safe operation of the project, and that the owner or its employees performed the work in a safe had no duty to see that the contractor's employees fashion,” did not improperly advise the jury of performed the work safely. Rules App.Proc., the effect of the trial court's prior ruling granting Rule 81(b)(1) (Repealed). owner's motion for partial directed verdict on premises liability claim. Cases that cite this headnote

Cases that cite this headnote

[15] Trial Attorneys and Law Firms Definition or Explanation of Terms *759 Tommy L. Yeates, Moore, Landrey, Garth, Jones, Trial court must submit explanatory instructions Burmeister & Hulett, Beaumont, Richard G. Lewis, Boneau and definitions that will assist the jury in & Lewis, Port Arthur, Ed W. Barton, Orange, for appellant. rendering a verdict.

Thomas W. Duesler, Harris, Lively & Duesler, Beaumont, Cases that cite this headnote Robert J. Killeen, Jr., McAlpine, Peuler, Cozad & Davie, Houston, Thomas C. Fitzhuge, III, Fitzhugh & Thompson, [16] Trial Houston, for appellee.

Authority to Instruct Jury in General Before BURGESS, STOVER and CARR, * JJ.

Trial Definition of Terms Trial court has wide discretion to determine the OPINION sufficiency of definitions and instructions.

RON CARR, Justice (Assigned).

Cases that cite this headnote This is an appeal of a take-nothing judgment in a negligence [17] Trial and premises liability case brought by appellants after the Opinion or Belief of Judge as to Facts death of John Ray Lawrence as the result of an accident on a crane owned by appellee, Coastal Marine Service To be an improper direct comment on the weight of Texas, Inc. [Coastal], which occurred while Lawrence of the evidence, a jury instruction must suggest was working for Coastal's independent contractor, H.W.

to the jury the trial judge's opinion.

Campbell Construction Company [Campbell] on Coastal's Cases that cite this headnote premises.

The case proceeded to trial against Campbell and Coastal [18] Appeal and Error after the trial court directed a partial verdict against appellants Invading Province of Jury on the premises liability issue. The jury returned an adverse Survivors of independent contractor's employee, verdict on the negligence issue and a take-nothing judgment who was killed in a crane accident, failed to show was entered. that jury rendered an improper verdict as a result of a jury instruction challenged as an improper Appellants now bring this appeal 1 with five (5) points of comment on the weight of the evidence and as error contending that the trial court erred (1) in granting an advisement to the jury of the effect of a prior Coastal's partial directed verdict [points of error one through ruling for the owner on a premises liability claim;

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three]; and, (2) by committing charge error [points four and five].

Duty

[6] [7] Generally, a premises owner has a duty to use The Accident reasonable care to keep the premises under his control in a safe condition. *760 Redinger v. Living, Inc., 689 S.W.2d The record reflects that at the time of the accident Coastal's 415, 417 (Tex.1985). However, if a premises owner retains/ crane was being used by Campbell's employees to offload hires an independent contractor to perform a specific task skids on Coastal's property. After the skids were removed, on the premises, the independent contractor will then owe a the boon was moved to the rear of the crane by the operator, duty to use reasonable care to keep the premises under his at which time Lawrence's head was crushed resulting in his control in a safe condition. Id. It is undisputed that at all death. There was no barricading system to prevent access by times material, Lawrence and his employer Campbell were Lawrence to the rear “pinch point” area. This rear pinch point independent contractors of Coastal. area was not readily apparent to the operator in that the crane had no mirrors and the operator had to step out of his cab to [8] The general rule is that an owner or occupier does not see this blind spot, nor did the crane have an operator's manual have a duty to see that an independent contractor performs in the cab. work in a safe manner. Id. Coastal can presume that an independent contractor, such as Campbell, will take proper care and precautions to assure the safety of its own employees. Agricultural Warehouse, Inc. v. Uvalle, 759 S.W.2d 691, Premises Liability 695 (Tex.App.—Dallas 1988), writ denied per curiam, 779 Appellants' first three (3) points of error contend collectively S.W.2d 68 (Tex.1989). that the trial court erred in granting Coastal's partial directed verdict on the premises liability issue because there is some [9] [10] An exception to this rule exists when an employer evidence that Coastal in fact retained control over the crane inor general contractor retains control over the work performed that the record affirmatively reflects that Campbell employees by an independent contractor. Therefore, a premises owner, would have followed Coastal's direction and instructions such as Coastal, may be liable when it retains the right regarding the crane if given by Coastal. We agree. to control some part of the independent contractor's work, but fails to exercise the retained control with reasonable care. Redinger, 689 S.W.2d at 418. Control, or the right to control, when resting with the landowner, then, is paramount Directed Verdict Review to recovery. Exxon Corp. v. Quinn, 726 S.W.2d 17, 20 (Tex.1987). In this instance, the right of control must be more [1] [2] [3] [4] [5] A party is entitled to a directed than a general right to order the work to start or stop, to verdict only when there is no evidence to support a material inspect progress or receive reports. Redinger, 689 S.W.2d at issue. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 418. The right of control must extend to the specific area of (Tex.1983). The trial court should direct a verdict only when operation where the plaintiff's injury allegedly took place. A reasonable minds can draw only one conclusion from the general right to control the entire operation is not enough.

evidence. Vance v. My Apartment Steak House, 677 S.W.2d Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993).

480, 483 (Tex.1984). In reviewing a directed verdict, we must consider all evidence in the light most favorable to the In this case, it is undisputed that at the time of the accident, party against whom the verdict was directed, disregarding Lawrence was an employee of Campbell; Campbell was an all contrary evidence and inferences. Porterfield v. Brinegar, independent contractor of Coastal; and, that Coastal was the 719 S.W.2d 558, 559 (Tex.1986). The appellate court must owner of the unsafe crane, which is the premises in question.

determine if there is any probative evidence to raise a fact issue. Id. A directed verdict will be held improper if there is any evidence in the record of probative force on any theory of recovery. Jones v.Tarrant Utility Co., 638 S.W.2d 862, 865 The Evidence (Tex.1982).

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[11] Robert Phillips was Campbell's supervisor at the site which the crane operator could not have done in this case and at the time of Lawrence's death. He testified he would because it was not present in the cab. Wiethorn also opined have complied with any instructions from Coastal regarding that the crane was not properly maintained in that it had movement of the crane. Campbell historically provided labor numerous problems, including a throttle that did not operate services for Coastal on Coastal's property. Phillips relied properly, it ran at a constant speed that could not be adjusted, on Coastal to provide a good crane. He would have put a the boom angle indicator was defective, a brake did not barricade tape around the danger area if Coastal had wanted operate, outrigger controls had been taken out, and various him to, and, he would have done whatever he had been other problems. Wiethorn admitted that Coastal, the owner, ordered to do by anybody at Coastal and he knew he was to had the responsibility to have some type of inspection do so at the time period that the death occurred. procedure set up to make sure a safe and suitable crane was provided to those who would use it on the premises. OSHA Mr. Melvin was an employee and the human resources requires barricades in this particular setting. He opined that manager of Campbell at the time of Lawrence's death. Solari barricades are customary with both old and new cranes and acknowledged there was absolutely no question in his mind it does not take much to make a barricade system even for that if Mr. Lyday, the President of Coastal, had asked him to old cranes. He admitted that the cost of barricade tape is have Phillips move the crane, that he would have complied; nominal and basically less than a penny a foot. He testified or if Mr. Lyday had asked him to not use the crane until it that this is something Coastal could have kept on a permanent had been inspected or brought up to industry standards with basis is the cab for the purpose of warning someone. Had all the manuals on board, etc., that he would have complied as Wiethorn inspected the crane, he would have recommended well; that the safe operation of cranes and instructions related that a portable barricade travel with the crane. thereto are important to the workmen and despite this he had not even seen the operator's manual until after Lawrence's death; that Mr. Lyday came to the yard in September of 1994 Conclusion and that he came there after the fatality; and, that had Mr. Lyday come out before the fatality and requested that the [12] Viewing the above evidence in the light most favorable crane be moved, that it would have been moved. to appellants, we conclude the above evidence is some evidence of probative force that raises a fact issue regarding Campbell's expert, Jimmy Wiethorn, was a professional Coastal's right to control the crane, its operations, movements, engineer with experience in operating cranes. He testified that and conditions under which it could operate while it was in the crane was ragged, old, had seen quite an extensive life, and Campbell's possession. The retention of the right to direct or was pretty well beat up. He testified that the outrigger controls to forbid the manner in which something is done suffices. to the crane had been disengaged or removed from inside the Redinger 689 S.W.2d at 418. The employees relied on Coastal cabin, the acceleration pedal had been disconnected, the brake to provide a good crane. Coastal had a responsibility to ensure installed below the console did not operate, the gas throttle a safe and suitable crane and had the basic duty to make the did not operate, there was no operator's manual present, and, premises safe for its invitees. Smith v. Henger, 148 Tex. 456, that the operator's manual that should have been in the crane 226 S.W.2d 425, 431 (1950). This includes the duty to warn contained specific instructions to avoid moving the crane until of dangerous conditions and hidden defects. Id. In Abalos v. all personnel are clear. Oil Development Co. of Texas, 544 S.W.2d 627 (Tex.1976):

the Supreme Court differentiated those cases in which the *761 Wiethorn further testified that there was no load chart defendant did not create the dangerous condition. In Abalos, 2 to comply with the American National Standards Institute the Supreme Court stated that although an owner does not (ANSI) within the crane. The operator's manual was required have a duty to see that an independent contractor performs by OSHA and ANSI to be kept in the cab at all times.

work in a safe manner, the rule is inapplicable “if a party According to Wiethorn, OSHA and ANSI standards applied negligently creates a dangerous situation, it then becomes to this particular crane and Coastal could have easily provided his duty to do something about it ...” Id. at 633. Since the the people who worked with the crane with the pertinent employees would have acquiesced to Coastal's right to direct OSHA standards regarding its operation. He testified that the operations of the crane, it is fair to infer that their course of proper operation of a crane calls for the operator to be business dealings gave Coastal premises control. The fact that thoroughly conversant with the crane's operating manual, Coastal did not exercise the control does not release it from

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of the project.” There is nothing in the Court's instructions to liability. O'Neill v. Startex, 715 S.W.2d 802, 805 (Tex.App.

suggest that OSHA regulations were inapplicable to Coastal, —Austin 1986, no writ).

to the extent the regulations applied to the crane itself.

Appellants' points of error one through three are sustained.

[14] Appellants next contend that because Coastal was Judgment is reversed and remanded as to appellants' premises a premises owner, the instruction somehow advised the liability claim.

jury of the effect of the trial court's prior ruling granting Coastal's motion for partial directed verdict, as stated above. We disagree with appellants' argument that the instruction Alleged Charge Error effectively instructs the jury that Coastal is not subject to any OSHA standards and that the jury should not consider OSHA [13] The trial court submitted the following instruction standards and the experts' testimony based thereon.

preceding Question No. 1:

In determining the negligence or [15] [16] [17] A trial court must submit explanatory gross negligence, if any, of Coastal instructions and definitions that will assist the jury in Marine Services of Texas, Inc., you rendering a verdict. Wichita County, Texas v. Hart, 917 are instructed that such negligence S.W.2d 779, 783–84 (Tex.1996). This is exactly what was or gross negligence must relate to done in the case at bar. Additionally, the trial court has the crane in question as the premises wide discretion to determine the sufficiency of definitions owner, Coastal Marine Service of and instructions. Plainsman Trading Co. v. Crews, 898 Texas, Inc. was not subject to any S.W.2d 786, 791 (Tex.1995). Although an instruction might OSHA regulations as they pertain to incidentally comment on the evidence, the Court's charge is the premises or safe operation of not objectionable on the ground that it incidentally constitutes the project. Further, as the premises a comment on the weight of the evidence when it is properly owner, Coastal Marine Service of a part of an instruction or definition. TEX.R. CIV. P. 277. To Texas, Inc. had no duty to see that the be a direct comment on the weight of the evidence, the jury H.W. Campbell Construction *762 instruction must suggest to the jury the trial judge's opinion. Company or its employees performed Texas Employers Ins. Ass'n v. Duree, 798 S.W.2d 406, 412 the work in a safe fashion. (Tex.App.—Fort Worth 1990, writ denied). The instruction preceding Question No. 1 given the jury by the trial court gave no indication to the jury of any opinion of the trial court Appellants' points of error four and five collectively contend regarding the facts of the case and therefore, it was proper.

that the trial court erred in submitting the above instruction because it improperly commented on the weight of the [18] Furthermore, appellants have not shown that the evidence [point four] and advised the jury of the effect of its submission of this instruction caused the jury to render an prior ruling on Coastal's motion for partial directed verdict improper verdict. TEX.R.APP. P. 81(b)(1). This is especially [point five]. We disagree.

true in light of the fact that the appellants vigorously argued the applicability of OSHA standards to the crane itself during Campbell's expert testified that certain OSHA standards apply closing arguments.

to the crane itself.

Appellants' fourth and fifth points of error are denied.

We first conclude the instruction, as submitted, was not Judgment is affirmed as to appellants' negligence claim.

an improper comment on the weight of the evidence. The instruction did not advise the jury that OSHA regulations do JUDGMENT IS REVERSED AND REMANDED IN PART not apply to Coastal with regard to the crane and its operation.

AND AFFIRMED IN PART.

The instruction is clear, in specifically instructing the jury that any negligence on the part of Coastal must relate to the crane in question. The second sentence of the instruction All Citations simply stated that Coastal was not subject to any OSHA regulations “as they pertain to the premises or safe operation 983 S.W.2d 757

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Footnotes * The Honorable Ron Carr, sitting by assignment pursuant to TEX. GOV'T CODE ANN . § 74.003(b) (Vernon 1988). 1 After perfecting appeal, Campbell was dismissed from this appeal. 2 Redinger relies on Abalos to support its holding at 418.

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