Lee Lewis Construction, Inc. v. Harrison , 70 S.W.3d 778 ( 2002 )

Justice HANKINSON

delivered the opinion of the Court,

in which Chief Justice PHILLIPS, Justice ENOCH, Justice BAKER, Justice O’NEILL, and Justice RODRIGUEZ joined.

Following Jimmy Harrison’s fatal fall from the tenth story of a construction site where Lee Lewis Construction, Inc., (LLC) was the general contractor, the Harrison family brought a wrongful death and survival action against LLC, alleging negligence and gross negligence. The trial court rendered judgment on the jury’s verdict against LLC and awarded $7.9 million in compensatory damages plus prejudgment interest and $5 million in punitive damages. LLC appealed. The court of appeals affirmed, after suggesting re-mittitur of $450,000 for unproven pain and suffering damages. 64 S.W.3d 1. LLC now challenges the legal sufficiency of the jury’s negligence and gross-negligence findings, and in the alternative, the propriety of the submitted jury question concerning whether LLC owed a duty to Jimmy Harrison. We conclude there is legally sufficient evidence that: (1) LLC retained the right to control its subcontractor’s fall-protection measures and thus owed a legal duty to Harrison; (2) LLC’s failure to ensure adequate fall-protection measures proximately caused Harrison’s fall; and (3) LLC was grossly negligent. We also conclude that any charge error was harmless. Accordingly, we affirm the court of appeals’ judgment.

Lubbock’s Methodist Hospital hired LLC to remodel the eighth floor of, and add ninth and tenth floors to, its south hospital tower. As the general contractor, LLC then subcontracted the project’s interior glass-glazing work to KK Glass. Jimmy Harrison was an employee of KK Glass. Harrison was installing thermal insulation and caulking between the window frames on the tower’s tenth floor when he fell and suffered fatal injuries. Although no one witnessed Harrison’s fall, and although there is disputed evidence about what type of safety device he was using, the evidence is undisputed that Harrison was not using an independent lifeline that would have stopped his fall.

Harrison’s wife, two children, and parents sued LLC, alleging negligence and gross negligence, and also sued KK Glass, alleging gross negligence. The Harrisons settled with KK Glass but tried their case against LLC to a jury. The jury rendered a verdict for the Harrisons, finding that LLC had retained the right to control safety at the construction site, that LLC was both negligent and grossly negligent, that LLC was ninety percent responsible for the accident and Harrison was ten percent responsible, and awarded the Harrisons compensatory and punitive damages. LLC appealed. After the Har-risons agreed to remit $450,000 of the damages awarded to the estate for Jimmy Harrison’s pain and suffering, the court of appeals affirmed. 64 S.W.3d at 1. We granted LLC’s petition for review to determine whether there is legally sufficient evidence of LLC’s negligence and gross negligence, and in the alternative, if the first jury question was erroneous.

We begin with LLC’s no-evidence challenge to the jury’s negligence finding. To sustain a negligence action, the plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998). LLC challenges the duty and proximate-cause elements of the jury’s verdict, but not the breach or damages elements. In conducting a legal-sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Lozano v. Lozano, 52 S.W.3d 141, 166 (Tex.2001) (Baker, J., concurring in part and dissenting in part). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence. Id.

Our review of the evidence concerning negligence begins with duty. The parties agree that the duty in this case is governed by our well-established law concerning a general contractor’s duties to a subcontractor’s employees. Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex.1998). A duty does arise, however, if the general contractor retains some control over the manner in which the independent contractor performs its work. Elliott-Williams, 9 S.W.3d at 803. The general contractor’s duty of care is commensurate with the control it retains over the independent contractor’s work. Id.; Mendez, 967 S.W.2d at 355. Section 414 of the Restatement (Second) of Torts, which we adopted in Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985), further explains this principle:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1965). Under our decision in Redinger, a general contractor may owe a duty of reasonable care to a subcontractor’s employee, and consequently may be liable for injury to that employee, if the general contractor retains control over part of the work to be performed: “[W]hen the general contractor exercises some control over a subcontractor’s work he may be liable unless he exercises reasonable care in supervising the subcontractor’s activity.” 689 S.W.2d at 418.

A general contractor can retain the right to control an aspect of an independent contractor’s work or project so as to give rise to a duty of care to that independent contractor’s employees in two ways: by contract or by actual exercise of control. See, e.g., Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999); Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999). We have frequently used the phrases “right of control” or “retained control” interchangeably. See Chapa, 11 S.W.3d at 155; Lawrence, 988 S.W.2d at 226. The distinction remains important, however, because determining what a contract says is generally a question of law for the court, while determining whether someone exercised actual control is a generally a question of fact for the jury. LLC challenges only the legal sufficiency of the evidence to support the jury’s finding that it retained the right to control safety on the jobsite and the court of appeals’ interpretation of the contracts at issue; it does not challenge the application of section 414 or argue for a change in Texas law. We therefore review the evidence in support of the jury’s finding in accordance with that law.

Here, the trial court asked the jury, “Did LLC retain the right to control safety” on the jobsite. Thus to evaluate LLC’s no-evidence challenge we must determine if the Harrisons presented more than a scintilla of evidence that LLC exercised actual control over safety, in particular, the fall-protection systems used by KK Glass employees. LLC argues there is no evidence that it exercised any actual control over KK Glass employees’ use of fall-protection equipment during the exterior glass-installation process. The Harrisons respond that LLC observed and expressly approved of KK Glass employees using faulty fall-protection equipment, including using a bosun’s chair without an independent lifeline.

The evidence at trial supports the Harrisons’ contention. At trial, Lee Lewis, LLC’s owner and president, testified that he assigned C.L. Lewis, LLC’s job superintendent, “the responsibility to routinely inspect the ninth and tenth floor addition to the south tower to see to it that the subcontractors and their employees properly utilized fall protection equipment.” Testimony indicated that C.L. Lewis personally witnessed and approved of the specific fall-protections systems KK Glass used. There was testimony that C.L. Lewis “definitely did approve” the lanyard system. There was also testimony that C.L. Lewis knew of and did not object to KK Glass employees using a bosun’s chair without an independent lifeline. Although our law makes clear that a general contractor is not an ensurer of safety on the jobsite, see Elliott-Williams, 9 S.W.3d at 803, we agree with the Harrisons that the testimony highlighted above constitutes more than a scintilla of evidence that LLC retained the right to control fall-protection systems on the jobsite. LLC therefore had a duty of care toward Harrison commensurate with that right. Because we conclude that LLC retained the right to control fall-protection systems on the jobsite, we need not address its argument that it did not retain the right to control by contract.

We turn next to LLC’s no-evidence challenge to proximate cause. LLC contends that even if it did owe a legal duty to Harrison, the Harrisons did not prove that LLC’s conduct proximately caused Jimmy Harrison’s death. Specifically, LLC argues that because no one saw Harrison fall, there was no evidence that LLC’s conduct was the cause-in-fact of Harrison’s death, nor was there evidence that the accident was foreseeable. The Harrisons respond that LLC’s failure to require its subcontractors’ employees to use independent lifelines was a cause-in-fact of Harrison’s death, and that LLC knew or should have known that workers using an ineffective fall-protection system could suffer a fatal fall. We agree with the Harrisons.

As the Harrisons correctly point out, the question here is whether an act by LLC was “a” proximate cause, not “the” proximate cause, of Harrison’s death. More than one act may be the proximate cause of the same injury. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 793 (Tex.App.—Tyler 1995, writ denied). Proximate cause comprises two elements: cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The test for cause-in-faet is whether the act or omission was a substantial factor in causing the injury “without which the harm would not have occurred.” Id.

Here, LLC employee Sloan Butler and LLC vice-president Tom Ferguson testified that Harrison would not have died from his fall if he had been secured by an independent lifeline. Expert witnesses concurred. Even if Harrison had started to fall, the independent lifeline would have stopped his fall before it became fatal. At trial, LLC employees, KK Glass employees, and expert witnesses testified that an effective fall-protection system would have mandated using independent lifelines. Evidence showed that LLC required its own employees to use independent lifelines, but permitted KK Glass employees to work without them. In fact, LLC’s superintendent observed Harrison working without an independent lifeline but did nothing to remedy the situation. LLC could have prevented Harrison’s death if it had enforced its own safety rules and required KK Glass employees to use independent lifelines. Thus, there is more than a scintilla of evidence from which the jury could have concluded that LLC’s failure to require KK Glass workers to use independent lifelines was a substantial factor in causing Harrison’s death.

The second element of proximate cause is foreseeability. Foreseeability means that an “actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Travis, 830 S.W.2d at 98. Foreseeability does not require an actor to anticipate the precise manner in which the injury will occur; instead, the injury need only be of a general character that the actor might reasonably anticipate. See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223-24 (Tex.1988).

At trial, Lee Lewis testified that he knew falls were one of the top causes of death in multi-story construction. He was aware that the building required exterior work, and that workers, including KK Glass employees, would be exposed to fall hazards. This testimony constitutes more than a scintilla of evidence that LLC foresaw the “general character” of injury that Harrison sustained. Thus, we conclude that the evidence of proximate cause is legally sufficient.

LLC also challenges the legal sufficiency of the evidence to support the jury’s gross-negligence finding. In Transportation Insurance Co. v. Moriel, we held that gross negligence involves two components: (1) viewed objectively from the actor’s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. 879 S.W.2d 10, 23 (Tex.1994). The first element, “extreme risk,” means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998); Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex.1995); Moriel, 879 S.W.2d at 22. The second element, “actual awareness,” means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care. Ellender, 968 S.W.2d at 921; Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993). Circumstantial evidence is sufficient to prove either element. Ellender, 968 S.W.2d at 921; Moriel, 879 S.W.2d at 22-23.

Evidence of gross negligence is legally sufficient if, considered as a whole in the light most favorable to the prevailing party, it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex.1999). Some evidence of simple negligence is not evidence of gross negligence. Id.; Ellender, 968 S.W.2d at 921; Ung, 904 S.W.2d at 641; Moriel, 879 S.W.2d at 22-23. Conversely, some evidence of care does not defeat a gross-negligence finding. Sanchez, 997 S.W.2d at 595. We turn now to the evidence that satisfies each element, which we review in the light most favorable to the jury’s finding. See id.

First, there is more than a scintilla of evidence that, objectively viewed from LLC’s standpoint, working on the tower’s ninth and tenth floors without using an independent lifeline created an extreme risk of a fatal fall. At trial, Lee Lewis testified that falls are among the top reasons for serious injuries or deaths on construction projects, and that the hospital project presented a fall hazard because workers would be required to work on the exterior of the ninth and tenth floors. C.L. Lewis, Tom Ferguson, and several expert witnesses also testified that the project posed obvious risks of falls. The dangerous nature of multi-story construction projects alone is not enough to satisfy the objective component of gross negligence. But in this case, there is evidence that does satisfy the objective component, and that is the extreme risk of serious injury, apparent to anyone in LLC’s position, from not using an independent lifeline while doing exterior work on the tenth floor of the building.

There is also evidence to support the Moriel standard’s subjective component. C.L. Lewis testified that he witnessed KK Glass employees working from the window sills of the ninth and tenth floors using only safety belts and lanyards as their fall-prevention devices. He testified, as did other LLC executives and expert witnesses, that KK Glass’ use of safety belts and lanyards, without safe work platforms or independent lifelines, did not provide an effective fall-protection system. C.L. Lewis admitted that even after observing KK Glass’ ineffective fall-protection system, he did nothing to remedy it. Todd Taylor, KK Glass’ foreman, testified that C.L. Lewis not only observed KK Glass’ fall-protection system, but expressly approved it. Moreover, evidence showed that LLC workers, in contrast to their KK Glass counterparts, did use independent lifelines as part of their fall-protection equipment. See Ellender, 968 S.W.2d at 925. This evidence supports the jury’s finding that LLC knew of, but was consciously indifferent to, the risk of fatal falls for its subcontractors’ employees. This evidence shows that LLC was subjectively aware of the extreme risk of serious injury to KK Glass employees, but consciously chose to do nothing. Thus, because there is more than a scintilla of evidence supporting each component of the Moriel test, we conclude that the evidence of LLC’s gross negligence is legally sufficient.

As a final matter, we consider LLC’s alternative argument that it is entitled to a new trial because the trial court submitted a legally incorrect question about LLC’s right of control on the jobsite. The first jury question read: “Did Lee Lewis Construction, Inc. retain the right to control safety on the construction project where Jimmy Harrison suffered his fatal fall?” LLC objected to this question on the basis that it was not specific enough and should have asked if LLC retained the right to control the details of Harrison’s use of the bosun’s chair, lanyards, and safety belt. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997). The Harrisons respond that inquiring about the right to control particular safety devices is unnecessary because the right of control over safety is a specific right. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993). They also argue that LLC’s complaint about the first jury question is mooted because it did not object to the second question, which submitted the same factual inquiry about right of control.¹ Any error in the first question would therefore be harmless, because the same verdict would have been reached based on an affirmative response to the second question.

We agree with the Harrisons that any error in submitting the first question was harmless because of the jury’s affirmative answer to the second question. The second question resubmitted the duty issue to the jury by defining negligence in terms of LLC’s failure to use ordinary care with regard to its “retained right of control, if any.” LLC did not object to this question. The jury’s affirmative answer to the second question was sufficient to support liability. Thus even if the trial court erred in submitting the first question, any error was harmless. See Tex. R.App.P. 61.1.

Because the evidence of LLC’s negligence and gross negligence was legally sufficient to support the jury’s verdict, and because any error in the charge submitted was harmless, we affirm the court of appeals’ judgment.

Chief Justice PHILLIPS filed a concurring opinion, in which Justice RODRIGUEZ joined.

Justice HECHT filed a concurring opinion, in which Justice OWEN joined. Justice JEFFERSON filed a concurring opinion.

1 . The second question read:

Did the negligence, if any, of the persons named below proximately cause the occurrence in question? ... "Negligence,” when used with respect to a general contractor, means the failure to use ordinary care with regard to its retained right of control, if any, to reduce or eliminate an unreasonable risk of harm created by an activity or condition on the premises which the general contractor either knows about or in the exercise of ordinary care should know about. "Ordinary care,” when used with respect to a general contractor, means that degree of care which would be used by a general contractor of ordinary prudence under the same or similar circumstances.