Israel Barrientos v. Maxwell Lumber Company, Inc.

• Court: Court of Appeals of Texas
• Decided: January 31, 2007
• Docket: 12-06-00148-CV
• Status: Published

Opinion

                                                NO. 12-06-00148-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ISRAEL BARRIENTOS,      §                      APPEAL FROM THE SECOND

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

MAXWELL LUMBER COMPANY, INC.,

APPELLEE   §                      CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

            Israel Barrientos brought a negligence suit against his former employer, Maxwell Lumber Company, Inc.  After a jury trial resulted in a verdict in favor of Barrientos, the trial court granted Maxwell Lumber’s motion for judgment non obstante veredicto on the grounds that there was no evidence of negligence or causation to support a judgment in Barrientos’s favor.  In two issues, Barrientos complains that the trial court erred in awarding Maxwell Lumber judgment non obstante veredicto.  Maxwell Lumber raises two cross issues.  We affirm.

Background

            Barrientos was a laborer for Maxwell Lumber, a nonsubscriber to Texas workers’ compensation insurance.  Barrientos did various jobs for Maxwell Lumber including gathering lumber cut by the Cornell saw, a saw that Maxwell Lumber had used for many years.  Generally, the operator of the Cornell saw was Agipotka Cordova, a long time employee of Maxwell Lumber.

            On December 17, 1999, while gathering lumber cut by the Cornell saw, Barrientos suffered  injuries to two fingers on his right hand.  Neither Barrientos nor Cordova saw how the injuries occurred, but Barrientos felt what he believed to be wood pushing on both sides of his fingers.  Due to the injuries, Barrientos lost his right index finger and had continuing problems with his right middle finger.

            Barrientos brought a negligence action against Maxwell Lumber.  Barrientos claimed that Maxwell Lumber failed to create, implement, and enforce safety policies, allowed Cordova to operate the Cornell saw when Cordova could not perform his duties safely, failed to properly maintain the Cornell saw and keep maintenance records on it, and failed to properly train Barrientos.

            The jury found that Maxwell Lumber’s negligence proximately caused Barrientos’s injuries and awarded him $75,000.00 in damages.  Maxwell Lumber filed a motion for judgment non obstante veredicto arguing that there was no evidence of negligence or causation.  The trial court granted the motion and this appeal followed.

Judgment Non Obstante Veredicto

            Barrientos claims that the trial court erroneously granted Maxwell Lumber’s motion for judgment non obstante veredicto because Barrientos presented evidence that Maxwell Lumber was negligent and that such negligence caused Barrientos’s injuries.

Standard of Review

            We affirm a trial court’s decision to disregard a jury’s findings only when there is no evidence to support those findings.  Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986).  We consider whether the evidence at trial would enable reasonable and fair minded people to reach the verdict under review.  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  In our review, we view the evidence in the light most favorable to the jury’s findings, crediting favorable evidence if reasonable jurors could.  Id. at 807.  In situations where there is a complete absence of evidence of a vital fact, we do not disregard contrary evidence.  Id. at 810-11. More than a scintilla of evidence as to a vital fact requires evidence that furnishes reasonable minds some reasonable basis for differing conclusions.  Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001). 

Applicable Law

            To establish negligence, the plaintiff must produce evidence that the defendant owed plaintiff a legal duty, that duty was breached, and the breach proximately caused the plaintiff’s damages.  Lee Lewis Constr., Inc., 70 S.W.3d at 782.  Proximate cause requires cause in fact and foreseeability.  Excel Corp. v. Apodaca, 81 S.W.3d 817, 820 (Tex. 2002).  Cause in fact requires the act or omission to be a substantial factor in causing the injury “without which the harm would not have occurred.”  Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).  To be a substantial factor, the act or omission must have “such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility,” instead of simply the “so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.”  Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995) (quoting Restatement (Second) of Torts  § 431 cmt. a (1965)).  Foreseeability requires that the negligent actor anticipated, or should have anticipated, the danger his or her negligence created.  El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987).  The exact injury need not be foreseen, but instead foreseeability is satisfied when the injury is of a general character that could reasonably be anticipated.  Lee Lewis Constr., Inc., 70 S.W.3d at 785.

            Causation may be based on either direct or circumstantial evidence.  Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992).  But causation cannot be supported by “mere conjecture, guess, or speculation.”  Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477.

Discussion

            First, Barrientos claims that Maxwell Lumber failed to provide, implement, and enforce safety rules and regulations.  Barrientos presented evidence that employees did not wear safety glasses, safety gloves, or ear plugs while working around the Cornell saw.  He also presented evidence from Pat O’Connell, an employee of Maxwell Lumber, that the laborers could move further away from the Cornell saw when cutting certain lengths of wood.  However, there is no evidence that safety glasses, safety gloves, or ear plugs would have prevented Barrientos’s injuries.  Also, there is no evidence that 1) the wood being cut on the day of the accident was a length that would allow Barrientos to be further from the Cornell saw and that 2) being further from the Cornell saw, but still close enough to properly perform his job, would have prevented Barrientos’s injuries.  Thus, Barrientos’s evidence on the issue of Maxwell Lumber’s failure to provide, implement, and enforce safety rules and regulations does not support the jury’s determination that Maxwell Lumber’s actions caused his injuries.  See id.

            Second, Barrientos claims that Cordova should not have been allowed to operate the Cornell saw.  Barrientos presented evidence that Cordova had experienced hearing loss.  However, no evidence was presented that Cordova was unable to properly operate the Cornell saw.  Barrientos presented no evidence that his injuries were caused by any conduct of Cordova, and the fact that Cordova operated the Cornell saw does not support the jury findings.  See id.

            Third, Barrientos claims that Maxwell Lumber failed to maintain the Cornell saw and to keep proper maintenance records.  However, the evidence presented indicated that Maxwell Lumber  maintained the Cornell saw.  Cordova provided daily maintenance on the saw.  Additionally, the lack of maintenance records is no evidence of negligence.  Most important, Barrientos provided no evidence of the type of maintenance that should have been performed and the effect, if any, that such maintenance would have had upon the Cornell saw.  Based on this record, Barrientos failed to present evidence that additional maintenance of the Cornell saw would have prevented his injuries or that improper maintenance could support the jury’s findings.  See id.

            Fourth and finally, Barrientos claims that Maxwell Lumber failed to properly train him.  Barrientos presented evidence that he was told by Maxwell Lumber to watch the other laborers and do what they do.  Further, the Cornell saw contained warnings.  Barrientos admitted that he read those warnings and that he did not put his hand in those areas of the machine that were warned as being dangerous.  He further presented evidence that he had been trained by the other laborers to jump away from the machine if he heard a popping sound.  Barrientos presented no evidence that his injuries were caused by any inadequate training that he received from Maxwell Lumber.  Thus, Barrientos’s evidence on the issue of training does not support the jury’s determination that Maxwell Lumber’s actions caused Barrientos’s injuries.  See id.

            Similar to the situation in Apodaca, Barrientos’s evidence suffers from an essential defect.  Apodaca, 81 S.W.3d at 822.  While it may show that Maxwell Lumber should have employed other practices and that Barrientos’s injuries were work related, none of the evidence shows that had Maxwell Lumber employed those other practices, Barrientos would not have been injured.  Instead, Barrientos simply relies upon conjecture, guess, and speculation to connect Maxwell Lumber’s conduct to his injuries.  That is not enough.  See Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477.  Barrientos failed to present evidence that Maxwell Lumber’s negligence caused his injuries.  Therefore, there is no evidence to support the jury’s findings on causation, and the trial court did not err in granting Maxwell Lumber’s motion for judgment non obstante veredicto.  See Navarette, 706 S.W.2d at 309.  We overrule Barrientos’s second issue.

Disposition

            Having found no evidence of causation, we need not reach Barrientos’s remaining issue or Maxwell Lumber’s cross issues.  We affirm the trial court’s judgment.

                                                                                                    BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered January 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)