Janet Bontke, Individually and as Guardian of the Estate and Person of Nolan Bontke, a Ward v. Cargill Meat Logistics Solution, Inc., Cargill Meat Solutions Corporation and Tulia Feed Lot, Inc.

• Court: Court of Appeals of Texas
• Decided: April 14, 2014
• Docket: 07-12-00328-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-12-00328-CV ________________________

JANET BONTKE, INDIVIDUALLY AND AS GUARDIAN OF THE ESTATE AND PERSON OF NOLAN BONTKE, A WARD, APPELLANT

V.

CARGILL MEAT LOGISTICS SOLUTION, INC., CARGILL MEAT SOLUTIONS CORPORATION, AND TULIA FEED LOT, INC., APPELLEES

On Appeal from the 64th District Court Swisher County, Texas Trial Court No. A-11598-10-06, Honorable Robert W. Kinkaid Jr., Presiding

April 14, 2014

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Janet Bontke, individually and as guardian of the estate and person of Nolan

Bontke (Bontke), appeals from a judgment denying her recovery against Cargill Meat

Logistics Solution, Inc. (Cargill Logistics) and Cargill Meat Solutions Corporation (jointly

referred to as Cargill) and Tulia Feed Lot, Inc. (the Feedlot). The suit arose from

injuries suffered by Nolan Bontke after attempting to load an injured steer into a cattle trailer at the Tulia Feed Lot. It was not the injured steer that caused his injuries but

rather a healthy animal used to induce the injured animal into the trailer. It became

agitated, ran down a shoot towards an unlocked gate behind which Nolan stood, struck

the gate, and knocked Nolan to the ground. Nolan had been hired by Cargill Logistics,

as an independent contractor, to haul cattle purchased by Cargill Meat Solutions from

the Feed Lot. After a partial summary judgment in favor of Cargill and the Feedlot, trial

was to a jury which returned a verdict against Bontke.

Bontke asserts multiple issues on appeal. We overrule them and affirm the

judgment.

Issue 1—Reference to Insurance

Bontke initially complains of two references to insurance made before the jury.

These references occurred when Cargill’s attorney was cross-examining Danny Davis,

another independent contractor truck driver for Cargill Logistics, about the terms of his

contract. Davis was being questioned about whether the latter provided him insurance

covering accidents while driving. The witness answered affirmatively, after which

Bontke objected because she did not want the jury to know that he (Nolan) had

insurance coverage. The trial court sustained the objection and instructed the jury to

“disregard the last complete question and answer that you heard in the courtroom . . .

and not consider any of it, whatsoever.” Later, Davis was asked if his contract with

Cargill Logistics obligated him to provide himself with worker’s compensation or

unemployment insurance. Bontke again objected and requested the trial court to

instruct the jury that “the Plaintiffs have not benefited from any insurance pursuant to a

contract with Cargill Logistics.” Though the trial court did not specifically rule on the

2 objection, it nonetheless told the jury that it should “disregard the last comment,

question and answer and not consider it for any purpose whatsoever.” The jury was not

told that the "Plaintiffs have not benefited from any insurance pursuant to a contract with

Cargill Logistics," and this led Bontke to argue on appeal that "Cargill deliberately

injected insurance in the case and, with the absence of [a] proper instruction to the jury

negating double recovery by Appellant, the jury was clearly confused and became

concerned with 'who pays' . . . ." We overrule the issue.

When reviewing issues pertaining to the admission of evidence, we apply the

standard of abused discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753

(Tex. 1995). That is, the decision of the trial court must stand unless it failed to comport

with controlling rules and principles or was otherwise arbitrary. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). And, should it be shown

that the trial court abused its discretion, reversal is not automatic. Babcock v.

Northwest Memorial Hosp., 767 S.W.2d 705, 708 (Tex. 1989); Beall v. Ditmore, 867

S.W.2d 791, 795 (Tex. App.—El Paso 1993, writ denied). There still must be a showing

of harm or prejudice. Brownsville Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 193 (Tex.

App.—Corpus Christi 2002, no pet.).

Here, the trial court sustained appellant's objections but did not instruct the jury in

the manner requested by Bontke. That is where the purported error lay. However, we

cannot say she was entitled to the instruction sought because we cannot say that the

evidence to which the objections were lodged was inadmissible.

It is true evidence that whether a person was or was not insured against liability

is generally inadmissible for purposes of showing that the person acted negligently or

3 wrongfully. TEX. R. EVID. 411. But, allusion to the evidence is not prohibited in all

situations. For instance, it may be admissible when offered to prove such things as

agency, ownership, or control if those matters are in dispute. See id.; St. Joseph Hosp.

v. Wolff, 999 S.W.2d 579, 595 (Tex. App.—Austin 1999), rev’d on other grounds, 94

S.W.3d 513 (Tex. 2002) (finding no abuse of discretion in admitting evidence that the

hospital provided malpractice insurance for the doctor because it supported the claim

that he was an employee of the hospital and the court gave a limiting instruction);

Thornhill v. Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 793-94 (Tex. App.—

Beaumont 1997, writ dism’d by agr.) (finding evidence that loan agreements required

one party to provide insurance on a motel admissible because it was offered to show

the exercise of control over the motel premises).

At bar, the parties argued about Nolan’s employment status with Cargill, or lack

thereof. So too did they debate the extent of control maintained by Cargill over the acts

and duties of Nolan, as an independent contractor. Answers to questions about

whether Cargill provided drivers like Nolan such things as workers' compensation,

unemployment, or liability insurance were relevant to those disputes, that is, disputes

regarding Nolan’s status as an employee or an individual within the control of Cargill.

Having an obligation to provide or actually providing such insurance to drivers like Nolan

and Davis could be viewed as indicia suggesting they were indeed employees or under

the control of Cargill Logistics. Thus, the evidence was relevant and actually

admissible, even though the trial court excluded it. And, because it was admissible,

Bontke was not entitled to an instruction directing the jurors to disregard what was said.

4 Issue 2—Exclusion of Expert Witness

In her second issue, Bontke contends that the "[e]xclusion of . . . [her] rebuttal

expert witness precluded imperative testimony and resulted in an improper verdict as to

liability." The rebuttal expert in question was Johan Rasty, and, the trial court sustained

Cargill's objection to him testifying because he was not properly designated as a

witness. We overrule the issue.

Again, the standard of review is one of abused discretion. K-Mart Corp. v.

Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (noting that the decision to exclude

testimony is reviewed for abuse of discretion). And where the rules of civil procedure

control, the failure to properly designate expert witnesses results in the automatic

exclusion of their testimony unless 1) good cause is shown justifying the omission or 2)

the omission "will not unfairly surprise or unfairly prejudice the other parties." TEX. R.

CIV. P. 193.6(a); Tranum v. Broadway, 283 S.W.3d 403, 425 (Tex. App.—Waco 2008,

pet. denied); Perez v. Embree Constr. Group, Inc., 228 S.W.3d 875, 884 (Tex. App.—

Austin 2007, pet. denied).

Here, the clerk's record illustrates that the trial court executed an "Agreed

Discovery Control and Scheduling Order" in December of 2010. Therein, it ordered that

"[p]laintiffs must designate each expert witness who may be called at trial and provide a

written report from such expert" by "March 31, 2011." In turn, the defendants had until

"May 31, 2011" to designate their experts. Then, the scheduling order closed with the

statement that "[t]he dates established hereby are firm, but any date, except the trial

date, may be amended by the parties by a Rule 11 Agreement, without Court approval"

and "[i]f the trial is rescheduled, this Order will be amended as appropriate." The parties

5 subsequently entered into a Rule 11 agreement affecting the aforementioned deadlines.

That agreement, the validity of which no one attacks on appeal, consisted of a letter

from Bontke's counsel stating:

We just got our copies of the latest round of depositions late last week. We are working with our experts promptly on this but with the short holiday week and considering the fact that we have to have reports with our designation, I think one final short extension on the expert deadline is in order. I would request that we agree to move both Plaintiff and Defendant deadlines back two weeks. Thus the new Plaintiff deadline would be May 13, 2011 and the new Defendant deadline would be July 14, 2011. If you are in agreement, please sign below and fax back to me as soon as possible. If anyone has an issue with this, would he or she give me a call to let me know right away so we can visit about it.

The original trial date was rescheduled. However, no one moved to modify the

dates denoted as "firm" within the scheduling order, at least with regard to those

pertaining to the designation of experts. Moreover, Bontke did not designate Rasty as a

rebuttal witness until after the lapse of the May 13, 2011 deadline specified in the Rule

11 agreement. Consequently, his testimony was excluded at trial, and Bontke contends

that the trial court abused its discretion in doing so.

In addressing the debate before us, we view our opinion in Alonzo v. Lampkin,

No. 07-12-00030-CV, 2013 Tex. App. LEXIS 13932 (Tex. App.—Amarillo November 13,

2013, no pet.) (mem. op.) as instructive. That case involved a Rule 11 agreement

specifying a date by which the parties were to “list each expert's name”. Id. at *7.

Furthermore, Alonzo failed to designate an expert rebuttal witness by that date, and the

trial court barred that witness from testifying. Alonzo argued, on appeal, that he was not

obligated to designate rebuttal experts under the agreement. We held otherwise by

noting that 1) a trial court had a duty to enforce an agreement complying with Texas

Rule of Civil Procedure 11, id. at *6; 2) a Rule 11 agreement "is contractual in nature"

6 and "interpreted in the same manner as are contracts in general,” id. at *7; 3) the plain

meaning of the words contained within it determined the extent of the agreement, id.;

and 4) because the term "experts" was neither defined nor qualified by the parties, it

encompassed all experts, including those to be rebuttal witnesses. Id. at *7-8.

Here, the trial court's scheduling order established deadlines by which "each

expert witness" was to be designated. Yet, it did not define or qualify the term “expert.”

Thereafter, the parties executed a Rule 11 agreement extending the "expert deadline."

Again, no one defined or qualified the term "expert." Given our opinion in Alonzo and

the similarity between the facts there and here, we must again conclude that the word

"expert" encompassed all experts, including those intended for rebuttal only. Thus, the

trial court did not abuse its discretion in barring Rasty from testifying. It was obligated to

enforce the parties' own agreement, even though it postponed the trial date. See Eaton

Metal Prods., L.L.C. v. U.S. Denro Steels, Inc., No. 14-09-00757-CV, 2010 Tex. App.

LEXIS 7941, at *9 (Tex. App.—Houston [14th Dist.] September 30, 2010, no pet.) (mem.

op.) (holding that because the date to designate experts contained in the Rule 11

agreement was specific, continuing the trial date did not affect it).

Issue 3—Summary Judgment

Bontke next argues that the trial court erred in rejecting her contention that

handling livestock was an inherently dangerous activity. 1 Bontke had alleged that

Cargill owed Nolan a non-delegable duty to properly protect him while performing his

services to the company. The duty was purportedly non-delegable because "cattle

1 The existence of a legal duty is a question of law, Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998), unless the parties dispute the facts giving rise to it.

7 handling is inherently dangerous." The trial court rejected the contention in granting

Cargill's motion for summary judgment, holding that "[a]s a matter of law the handling of

commercial livestock is not inherently dangerous." We agree and overrule the issue.

Texas jurisprudence has recognized few activities as inherently dangerous.

Central Ready Mix Concrete Company, Inc. v. Islas, 228 S.W.3d 649, 652 (Tex. 2007).

And, no one has cited us to Texas authority applying the doctrine to the activity of

handling cattle. Nevertheless, an activity or work is inherently dangerous if it must

result in probable injury to a third person or the public. Scott Fetzer Co. v. Read, 945

S.W.2d 854, 861-62 (Tex. App.—Austin 1997), aff’d, 990 S.W.2d 732 (Tex. 1998),

quoting Goolsby v. Kenney, 545 S.W.2d 591, 594 (Tex. Civ. App.—Tyler 1976, writ ref'd

n.r.e.); see also Agricultural Warehouse, Inc. v. Uvalle, 759 S.W.2d 691, 695 (Tex.

App.—Dallas 1988, writ denied) (stating that inherently dangerous work is that which

will probably result in injury to a third person or the public); King v. Associates

Commercial Corp., 744 S.W.2d 209, 212 (Tex. App.—Texarkana 1987, writ denied)

(stating the same). So too must the activity be "dangerous in . . . [its] normal,

nondefective state," to be inherently dangerous. Central Ready Mix Concrete Co. v.

Islas, 228 S.W.3d at 652-53.

While handling cattle may result in injury, we find no evidence of record that it will

or must result in probable injury. It is an activity done daily by ranchers and hobbyists

without encountering harm. Indeed, young children and students regularly parade

steers much larger than their handler around arenas and yards without incident. And,

citing us to testimony of a witness suggesting that there are "inherent risks" in handling

cattle, as Bontke did here, does not fill the void.

8 There are inherent risks in most any activity; yet, the presence of those risks

does not ipso facto mean injury or harm will or probably will result due to the conduct of

that activity. For instance, electric shock is an inherent risk faced by an electrician; yet,

performing electrical work is not an inherently dangerous activity. See id. at 652 n.12

(so noting). The same is true of handling explosives; one need not think hard to see

what inherent risks may exist there. Yet, it is not an inherently dangerous activity. Id.

So, it is not enough to simply say that the chance of injury renders the action inherently

dangerous. Cows may spook and run and steers may charge or kick under certain

circumstances. Those are risks inherent in raising or handling cattle; but without

evidence that handling cattle will probably result in injury, we cannot say handling such

livestock is inherently dangerous.2

Moreover, Nolan’s injuries arose from the actions of an agitated steer. Again, it

had been moved into a pen containing another animal with a broken leg. The idea

behind the action was to have the healthy animal induce the injured one into the cattle

trailer. Why the healthy steer grew agitated is not clear; some evidence suggests that

the door of the trailer may have fallen on the animal. Yet, it is clear that the animal that

caused Nolan’s injury was not in its "normal" state and, as previously mentioned, it is

the probability of danger arising from an activity's "normal, nondefective state" that

2 It is also this distinction that renders Bontke's reference to section 87 of the Civil Practice and Remedies Code inapposite. The statute speaks of risks encountered in participating in equine activities, livestock shows and the like. TEX. CIV. PRAC. & REM. CODE ANN. § 87.003 (West Supp. 2012). Intending to limit one's liability for such risks, the legislature enacted section 87 of the Civil Practice and Remedies Code. Yet, nowhere in the statute did the legislature declare that the activities encompassed by the provision were inherently dangerous. And, to deduce that merely because the legislature opted to limit liability, it must have concluded that the activities were inherently dangerous (that is, will or probably will result in injury) is rather absurd. Following the same logical process would mean that having a picnic on a farm or ranch would be inherently dangerous. Such is a recreational activity encompassed by section 75.001 et seq. of the Civil Practice and Remedies Code, which statute limits the liability of landowners for injuries occurring on their land. TEX. CIV. PRAC & REM. CODE ANN. § 75.001 et. seq. (West 2011). A common picnic is not an inherently dangerous activity.

9 determines whether the activity is inherently dangerous. Id. at 652-53. Again, we

neither found nor were cited to evidence illustrating that cattle are particularly

dangerous in their normal environment or even when being taken from pens and loaded

into trailers.

Issue 4—Sufficiency of the Evidence

Bontke next challenges the factual sufficiency of the evidence underlying the

answers of the jury to various questions posed it. Those questions included: 1) "Did

Cargill Meat Logistics Solution’s [sic], Inc. exercise actual control over the loading and

unloading of cattle as stated in Nolan Bontke’s owner-operator agreement," to which the

jury answered "no"; 2) “Did the negligence, if any, of Tulia Feedlot, Inc. proximately

cause the occurrence in question," to which the jury answered "no"; 3) “Did Tulia

Feedlot, Inc. engage in a negligent undertaking which was a proximate cause of the

occurrence," to which the jury answered "no"; and 4) "Did the negligence, if any of . . .

[Nolan Bontke] . . . proximately cause the occurrence in question”; and 5) “For each

person you found caused or contributed to cause the occurrence, find the percentage of

responsibility attributable to each." The responsibility attributed to Nolan was “80%,”

while “20%” was attributed to Serna, another truck driver employed by an entity other

than Cargill. We overrule the issue.

The pertinent standard of review is that discussed in Dow Chemical Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001). We apply it here.

Bontke does not deny that some evidence supports the jury's answers to the

questions at issue. And, in the case of Nolan’s own negligence and the percentage of

responsibility assigned to him, little is said about what contrary evidence overwhelmed

10 that on which the jury apparently relied.3 This makes our analysis of the point difficult

given that the jury heard about how Nolan entered a shoot or pen containing an agitated

steer and failed to latch the gate behind which he stood while the animal ran toward it.

Given this, we cannot say that the answer finding him negligent and 80% responsible

for his injuries was manifestly unjust.

As for the jury finding that Cargill Logistics did not exercise actual control over

the loading and unloading of cattle, there is evidence that the company exercised some

control over the activities of Nolan. Yet, other evidence illustrated that Nolan was an

independent contractor operating a truck trailer for Cargill Logistics. Furthermore,

general contractors, like Cargill Logistics, are afforded some latitude in telling

independent contractors what to do in general terms. Johnston v. Oiltanking Houston,

L.P., 367 S.W.3d 412, 419 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

Consequently, exercising or retaining a general right to recommend a safe manner in

which to perform work is not sufficient to subject the general contractor to liability. Dow

Chemical Co. v. Bright, 89 S.W.3d 602, 607 (Tex. 2002). Nor does requiring 1)

compliance with certain specifications or use of certain materials or 2) the attendance at

safety meetings mandate a finding of control. Union Carbide Corp. v. Smith, 313

S.W.3d 370, 377-78 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Also, obligating

the independent contractor to comply with safety guidelines may not be enough.

Abarca v. Scott Morgan Residential, Inc., 305 S.W.3d 110, 123 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied). And, the same is true of retaining or exercising the

authority to tell the independent contractor when to start, stop, or resume work.

3 Bontke does allude to Rasty's testimony about the time available to close the gate behind which Nolan stood and whether it was sufficient to permit him to do that. Yet, we concluded that the trial court did not abuse its discretion in excluding it. So, it cannot be considered in the equation.

11 Johnston v. Oiltanking Houston, L.P., 367 S.W.3d at 419. We finally note that in

situations where the purported retention of control over an independent contractor is the

basis for assigning liability, there must be a nexus between the control retained and the

condition or activity causing the injury. Shell Oil Co. v. Khan, 138 S.W.3d 288, 294

(Tex. 2004)

Here, evidence of record indicates that 1) Cargill Logistics required Nolan to pass

an initial application process, 2) Cargill Logistics inspected Nolan’s truck, 3) Nolan had

to pass drug tests, 4) Cargill Logistics held safety meetings and provided training

materials to those driving for it, 5) Cargill Logistics assigned its drivers locations and

times at which they were to appear, and 6) Cargill Logistics had a policy against loading

non-ambulatory animals. Yet, other evidence illustrates that 1) Nolan was an

independent contractor who was not loading his own trailer when he was injured but

rather that of another individual (Serna) who worked for someone not under contract to

Cargill Logistics, 2) Nolan’s injury did not occur on Cargill's property but on the site of

the feed lot over which Cargill had no right of control, 3) Nolan’s contract with Cargill

Logistics provided that he was responsible for “loading and unloading of products onto

or off the Equipment, or onto or off trailers which may be pulled by the Equipment,” 4)

Nolan had the obligation, via his contract, of determining “the method, means and the

manner of performing this Agreement,” 5) independent contractors were not required to

attend safety meetings, 6) Cargill Logistics did not direct Nolan to load the injured

animal, and 7) Cargill Logistics did not direct or request a feedlot employee to load the

injured animal. At the very least, the evidence of control was controverted, and given

12 the totality of the record, the jury's refusal to find that Cargill Logistics exercised the

requisite control over the activity causing Nolan’s injury was not manifestly unjust.

As to the Feedlot's purported negligence, it was premised on the Feedlot

manager’s alleged acceptance of Cargill Logistics’ request to “oversee the situation.”

Bontke contends that the manager failed to 1) recognize that the healthy escort steer

was agitated, 2) wait until the steer calmed down before loading it, 3) know where Serna

was or anyone else who might further agitate the steer, and 4) stop the loading process

when he realized that Serna had not followed his instructions to forgo loading the rest of

the cattle into the truck.4

Yet, there is no evidence that either Cargill entity requested the manager to

“oversee” the loading process. Instead, the manager testified that he merely was told of

some unidentified problem and asked to see what it was, sat for several minutes

watching Nolan try to load the injured steer by himself before deciding to assist him,

would not have tried to load the steer if the decision had been his to make, and the

decision had already been made to load the steer before he got there. Other evidence

indicated that 1) the steer was not initially agitated but possibly became so only as it

attempted to enter the trailer and had the trailer door drop upon its back, 2) the alley

gate should have been latched as soon as the steer passed through it, 3) Nolan had

time to latch the gate before the steer returned, 4) if the gate was not latched, Nolan

should not have been standing behind it, and 5) Serna, whose responsibility it was to

load the steer, prematurely loaded the rest of the cattle causing the escort steer to be

loaded alone and then dropped the trailer door on its back.

4 There was evidence about cattle being pack animals which prefer to be with other animals and become nervous when alone. Therefore, the Feedlot manager had requested Serna to stop loading the rest of the cattle so that the escort steer could be loaded with them.

13 The jury was free to choose what evidence it cared to believe. See Del Lago

Partners, Inc. v. Smith, 307 S.W.3d 762, 777 (Tex. 2010). It was also free to make its

own reasonable inferences from that evidence. Lee Lewis Const., Inc. v. Harrison, 64

S.W.3d 1, 6 (Tex. App.—Amarillo 1999), aff’d, 70 S.W.3d 778 (Tex. 2001). The

evidence it believed and the reasonable inferences made from that evidence supported

its verdict, and the controverting evidence does not render that verdict manifestly unjust.

Issue 5—Cumulative Impact

Finally, Bontke argues that the cumulative impact of the errors justify a reversal

of the judgment. Having failed to find any error, we overrule the issue.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice