W & T Offshore Inc. v. Luke Meyers , 577 S.W.3d 247 ( 2018 )


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  • Reversed and Rendered and Opinion filed July 3, 2018.
    In The
    Fourteenth Court of Appeals
    NO. 14-16-00378-CV
    W&T OFFSHORE INC., Appellant
    V.
    LUKE MEYERS, Appellee
    On Appeal from the 152nd District Court
    Harris County, Texas
    Trial Court Cause No. 2012-74366
    OPINION
    Luke Meyers was working on an oil and gas platform off the coast of
    Louisiana when a crane cable broke and caused a part of the crane to fall on his foot,
    resulting in personal injury. Meyers sued the owner of the platform, W&T Offshore
    Inc., alleging among other things that W&T failed to warn Meyers of hidden danger
    aboard the platform, failed to maintain a safe work environment, and failed to
    inspect, maintain, and repair equipment. At trial, the parties’ experts agreed that the
    cable was defective.
    The jury charge submitted a general-negligence question rather than a
    premises-liability question, and the jury found W&T negligent. W&T moved for a
    judgment notwithstanding the verdict because Meyers failed to obtain a jury finding
    on an essential element of a premises-liability claim. The trial court denied the
    motion, and W&T appeals.
    We hold that the trial court erred by denying the motion for JNOV because
    Meyers failed to secure a necessary jury finding on his proper theory of recovery:
    premises liability. We reverse the trial court’s judgment and render a judgment that
    Meyers takes nothing.
    I.    Texas Procedural Law and Rule 279
    The parties agree that Texas procedural law applies in this case. Rule 278 of
    the Texas Rules of Civil Procedure requires the trial court to submit to the jury
    questions, instructions, and definitions that are “raised by the written pleadings and
    the evidence.” Tex. R. Civ. P. 278. Rule 279 provides, “Upon appeal all independent
    grounds of recovery or of defense not conclusively established under the evidence
    and no element of which is submitted or requested are waived.” Tex. R. Civ. P. 279.
    If, however, elements are omitted from the charge that constitute only part of a
    complete and independent ground, and if other elements necessarily referable to that
    ground are submitted and answered, then the omitted elements may be deemed found
    in support of the judgment. See Ramos v. Frito-Lay, Inc., 
    784 S.W.2d 667
    , 668 (Tex.
    1990) (citing Tex. R. Civ. P. 279).
    Under the rules, if the pleadings and evidence indicate that the plaintiff
    submitted to the jury an improper theory of recovery (e.g., general negligence) in
    lieu of the plaintiff’s proper theory of recovery (e.g., premises liability), then the
    plaintiff waives the unsubmitted theory of recovery. See United Scaffolding, Inc. v.
    Levine, 
    537 S.W.3d 463
    , 469–70, 481 (Tex. 2017). If the plaintiff has waived their
    2
    theory of recovery by failing to request or secure findings on the theory, then a
    reviewing court will render a take-nothing judgment. See 
    id. at 483.
    II.   No Invited Error
    As an initial matter, Meyers contends that W&T invited the error and is
    therefore prohibited from complaining about Meyers’s failure to secure a premises-
    liability finding. We hold that W&T did not invite this error.
    The invited error doctrine prevents a party from complaining on appeal that
    the trial court took a specific action that the complaining party requested. Tittizer v.
    Union Gas Corp., 
    171 S.W.3d 857
    , 862 (Tex. 2005). The doctrine is a form of
    estoppel. See Patton v. Dallas Gas Co., 
    192 S.W. 1060
    , 1062 (Tex. 1917);
    Heidelberg v. State, 
    36 S.W.3d 668
    , 671 (Tex. App.—Houston [14th Dist.] 2001, no
    pet.). As relevant here, a defendant may be estopped from complaining that the
    plaintiff failed to secure a jury finding on the proper theory of recovery (e.g.,
    premises liability) if the defendant “persuades a trial court to adopt a jury charge that
    [the defendant] later alleges supports an improper theory of recovery” (e.g., general
    negligence). United 
    Scaffolding, 537 S.W.3d at 482
    (citing Del Lago Partners, Inc.
    v. Smith, 
    307 S.W.3d 762
    , 775 (Tex. 2010)); see also Saeco Elec. & Util., Ltd. v.
    Gonzales, 
    392 S.W.3d 803
    , 807–08 (Tex. App.—San Antonio 2012, pet. granted,
    judgm’t vacated w.r.m.) (holding that the defendant invited this type of error by
    submitting a proposed charge based on general negligence; the defendant “received
    the jury charge it asked for”).
    Meyers contends that W&T invited error by attaching a document titled
    “Plaintiff’s Proposed Jury Charge” to W&T’s response to the trial court’s Rule 166
    trial preparation order. Rule 166 of the Texas Rules of Civil Procedure authorizes a
    trial court to direct the parties to appear before the court and consider any matter as
    may aid in the disposition of the action, including but not limited to, “[p]roposed
    3
    jury charge questions, instructions, and definitions for a jury case.” Tex. R. Civ. P.
    166. A trial court’s authority “to require the parties to ‘appear before it’” in Rule 166
    includes the express power to order an appearance by filing a written report.
    Koslow’s v. Mackie, 
    796 S.W.2d 700
    , 703 (Tex. 1990). Rule 166 states further that
    the trial court “shall make an order that recites the action taken at the pretrial
    conference,” and that “limits the issues for trial to those not disposed of by
    admissions, agreements of counsel, or rulings of the court.” Tex. R. Civ. P. 166.
    In this case, the trial court signed a pre-trial “Trial Preparation Order” that
    instructed the parties as follows: “Pursuant to Rule 166 of the Texas Rules of Civil
    Procedure, the items that are checked below must be FILED BEFORE OR by 02-
    06-2015.” The trial court checked a box next to the following items, among others:
    (1) “Draft Jury Charge (if a jury fee has been paid) or Findings of Fact and
    Conclusions of Law. Modifications may be submitted as the trial progresses.”; (2)
    “Exhibits. An exhibit list is required. . . .”; and (3) “Motions in Limine.” W&T filed
    “Defendant’s Trial Preparation Order.” Under the heading “jury issues,” W&T
    attached “Plaintiff’s Proposed Jury Charge.” The proposed charge included a
    general-negligence question and related definitions. The charge did not include a
    premises-liability question or related definitions.
    On the two days immediately before trial, the court held pretrial hearings
    primarily to address issues related to exhibits and motions in limine. The only time
    the parties or court referred to the jury charge was in the context of the exhibits and
    motions in limine. Nothing at the pretrial hearing indicated that the court was making
    a ruling concerning the jury charge. In discussing the topic of a type of damages, for
    example, the Court said, “The evidence is coming in[. H]ow it’s delineated on a Jury
    Charge we will decide at that time—at the time we discuss the Jury Charge . . . .”
    4
    The record does not contain a subsequent order reciting the action taken at the
    pretrial conference pursuant to Rule 166.
    Six days into the trial, at the charge conference, the court provided the parties
    with a copy of the court’s charge. W&T objected for various reasons, contending
    that “[s]ubmission of negligence as to W&T is improper.” W&T stated: “Based on
    the Louisiana Law and Federal Law applying the Louisiana Law in an OCSL case,
    our position is that there is no evidence that W&T controlled the work of Mr. Meyers
    or presented him with an unreasonable and dangerous—unreasonably dangerous
    condition in which to work.” W&T did not explicitly tell the trial court that the case
    should have been submitted on a general-negligence theory or a premises-liability
    theory, and W&T did not have a duty to do so. See United 
    Scaffolding, 537 S.W.3d at 481
    .
    On appeal, the only case Meyers cites in which an appellate court held that
    the defendant invited this type of error is Saeco Electric & Utility, Ltd. v. Gonzales,
    
    392 S.W.3d 803
    (Tex. App.—San Antonio 2012, pet. granted, judgm’t vacated
    w.r.m.). But, the record in Saeco was markedly different for three reasons. First, in
    Saeco the trial court asked for proposed charges at the beginning of the second week
    of trial. 
    Id. at 807.
    Here, the trial court asked for proposed charges through a pretrial
    order and told the parties that modifications could be submitted as the trial
    progressed. Second, in Saeco the defendant did not object to the submission of the
    general-negligence question. See 
    id. Here, W&T
    objected to the submission of the
    general-negligence question. Third, in Saeco the trial court specifically told the
    parties that it was using the defendant’s proposed charge. See 
    id. Here, nothing
    in
    the record indicates that the trial court based its charge on W&T’s pretrial
    submission, rather than some other source. The court did not say on the record that
    it was using W&T’s charge, nor did the court memorialize a Rule 166 ruling, as
    5
    required by the rule, to recite the actions taken at the pretrial conference on the issue
    of the proposed jury charges (i.e., none).1
    Under these circumstances, the record does not show that W&T “persuade[d]
    a trial court to adopt a jury charge that [W&T] later alleges supports an improper
    theory of recovery” (e.g., general negligence). See United 
    Scaffolding, 537 S.W.3d at 482
    . W&T is not estopped under the doctrine of invited error from contending that
    Meyers failed to secure a jury finding on his proper theory of recovery. Cf. 
    id. (holding that
    the defendant’s proposing a general-negligence charge in the first trial
    did not persuade the trial court to submit a general-negligence charge in the second
    trial).
    III.      Louisiana Substantive Law as Surrogate Federal Law
    The parties agree that Meyers’s injury occurred on an oil and gas platform
    located off the coast of Louisiana. Meyers contends that this court must, therefore,
    apply Louisiana substantive law under the Outer Continental Shelf Lands Act
    (OCSLA), 43 U.S.C. § 1333(a), to determine whether the jury charge contained at
    least one element of a premises-liability theory, so as to allow for deemed findings
    under Rule 279. W&T makes several arguments for why we should apply Texas
    substantive law or presume that Louisiana law is identical to Texas law. We do not
    address those arguments in detail because resolution of whether Louisiana law
    1
    We note that Meyers is flatly wrong when he contends in his brief that “[t]he only
    difference” between W&T’s pretrial proposed charge and the charge ultimately submitted to the
    jury is that the charge places definitions of “Negligence,” “Ordinary Care,” and “Proximate Cause”
    in different places—in the general instructions versus within Question No. 1 (the negligence
    question). Although many differences seem minor, the charges are replete with them, thus
    indicating that the trial court did not simply rubber-stamp and “use the [W&T] charge.” See 
    Saeco, 392 S.W.3d at 807
    (noting the trial court’s statements that “it was [Saeco’s] proposed charge that
    I used” and “I used your client’s charge. I used the Saeco charge.” (alteration in original)). Rather,
    the trial court crafted a charge that appeared similar to, though distinct from, W&T’s proposed
    charge.
    6
    applies is not necessary to the disposition of this appeal. See Tex. R. App. P. 47.1.
    We assume without deciding that OCSLA mandates the application of Louisiana
    substantive law as surrogate federal law in this case. See, e.g., Gulf Offshore Co. v.
    Mobil Oil Corp., 
    453 U.S. 473
    , 480–81, 482 n.8 (1981) (“OCSLA does supersede
    the normal choice-of-law rules that the forum would apply.”).
    IV.    Premises Liability and General Negligence Are Distinct Theories of
    Liability Under Louisiana Law
    At the heart of this case is whether Meyers obtained a jury finding on his
    premises-liability theory of recovery when the jury question included only a general-
    negligence (i.e., negligent activity) question.2 In Texas, although premises-liability
    is a species or “branch” of negligence law, these two claims are “separate and distinct
    theories of recovery, requiring plaintiffs to prove different, albeit similar, elements
    to secure judgment in their favor.” United 
    Scaffolding, 537 S.W.3d at 471
    . Thus, a
    jury finding on general negligence does not allow for deemed findings on a premises-
    liability claim pursuant to Rule 279 of the Texas Rules of Civil Procedure. See
    Clayton W. Williams, Jr., Inc. v. Olivo, 
    952 S.W.2d 523
    , 529 (Tex. 1997).
    We must answer the following question: Does Louisiana law distinguish
    between negligent activity and premises liability, such that a jury finding on a
    general-negligence question will not support a judgment in a case that should have
    been tried under a premises-liability theory? W&T cites no Louisiana case directly
    on point. But W&T contends that Louisiana, like Texas, recognizes that negligent-
    activity and premises-liability theories of recovery are distinct. We agree with W&T.
    2
    Meyers refers to his theory of recovery as a “failure to maintain equipment.” We recite in
    greater detail below why his claim incorporates a premises-liability theory of recovery rather than
    a general-negligence theory.
    7
    Louisiana’s delictual laws are the “equivalent of the common law tort
    concept.” Myers v. Dronet, 
    801 So. 2d 1097
    , 1102 (La. Ct. App. 2001). Under the
    Louisiana Civil Code, a delictual action begins with Article 2315: “Every act
    whatever of man that causes damage to another obliges him by whose fault it
    happened to repair it.” 
    Id. at 1103
    (alteration omitted) (quoting La. Civ. Code art.
    2315(A)); see also Loescher v. Parr, 
    324 So. 2d 441
    , 445 (La. 1975) (“Articles 2315
    through 2324 of the Louisiana Civil Code comprise the code’s entire chapter of legal
    principle regulating offenses and quasi-offenses.”), superseded by 1996 La. Sess.
    Law Serv. 1st Ex. Sess. Act 1, § 1 (West). The remaining articles are “amplifications
    as to what constitutes ‘fault’ and under what circumstances a defendant may be held
    liable for his act or that of a person or thing for which he is responsible.” 
    Loescher, 324 So. 2d at 445
    ; see also 
    Myers, 801 So. 2d at 1103
    (“The articles which follow
    Article 2315 chisel its general tenet into various forms, such as negligence, strict
    liability, or absolute liability.”).
    Article 2316 supplies the general concept of negligence: “Every person is
    responsible for the damage he occasions not merely by his act, but by his negligence,
    his imprudence, or his want of skill.” Myers, 
    801 So. 2d 1103
    –04 (alteration omitted)
    (quoting La. Civ. Code art. 2316). The elements of negligence in Louisiana are,
    generally: (1) the defendant owed the plaintiff a duty under the specific
    circumstances of the particular case; (2) the defendant breached the duty which he
    or she owed the plaintiff; (3) the delictual conduct was the cause-in-fact of the
    damage or injury; (4) the risk and resulting harm stood within the scope of protection
    of the defendant’s duty; and (5) the plaintiff showed actual damage. See 
    id. at 1104;
    see also Thibodeaux v. Trahan, 
    74 So. 3d 850
    , 853 (La. Ct. App. 2011).
    Before tort reform in 1996, several of the subsequent articles recognized strict
    liability for premises defects. For example, under Article 2317, courts recognized
    8
    strict liability for those who had custody of “things.” See 
    Myers, 801 So. 2d at 1104
    –
    05. Article 2317 provides: “We are responsible, not only for the damage occasioned
    by our own act, but for that which is caused by . . . the things which we have in our
    custody.” La. Civ. Code art. 2317. Similarly, courts recognized strict liability of
    owners of buildings for damage caused by a defect or “ruin” of the building. See
    
    Loescher, 324 So. 2d at 446
    ; see also Faciane v. Golden Key Div. Ltd. P’ship, No.
    2017-CA-636, 
    2018 WL 2327720
    , at *3 nn.5–6 (La. Ct. App. May 23, 2018). But
    the Louisiana Legislature enacted Article 2317.1 and amended Article 2322 to
    replace strict liability with a negligence-based standard. See Faciane, 
    2018 WL 2327720
    , at *3 nn.5–6; see also 
    Myers, 801 So. 2d at 1104
    .
    Article 2322 “specifically modifies liability under Article 2317 with respect
    to the owner of a ruinous building or a defective component part of that building.”
    Broussard v. State ex rel. Office of State Bldgs., 
    113 So. 3d 175
    , 182 (La. 2013).
    Article 2322 provides in relevant part:
    The owner of a building is answerable for the damage occasioned by
    its ruin, when this is caused by neglect to repair it, or when it is the
    result of a vice or defect in its original construction. However, he is
    answerable for damages only upon a showing that he knew or, in the
    exercise of reasonable care, should have known of the vice or defect
    which caused the damage, that the damage could have been prevented
    by the exercise of reasonable care, and that he failed to exercise such
    reasonable care.
    La. Civ. Code art. 2322.
    For a plaintiff to hold the owner of a building liable for the damages caused
    by the building’s ruin or a defective component under Article 2322, the plaintiff
    must prove: (1) ownership of the building; (2) the owner knew or, in the exercise of
    reasonable care, should have known of the ruin or defect; (3) the ruin or defect
    9
    created an unreasonable risk of harm;3 (4) the damage could have been prevented by
    the exercise of reasonable care; (5) the defendant failed to exercise such reasonable
    care; and (6) causation. See 
    Broussard, 113 So. 3d at 182
    –83.
    Article 2322 is applicable to fixed offshore drilling platforms, including
    appurtenances such as cranes. See Moczygemba v. Danos & Curole Marine
    Contractors, Inc., 
    561 F.2d 1149
    , 1151–52 (5th Cir. 1977) (Article 2322 applicable
    to crane on offshore drilling platform); see also Olsen v. Shell Oil Co., 
    365 So. 2d 1285
    , 1289–91 (La. 1978) (approving Moczygemba and the application of Article
    2322 to appurtenances, and noting that a building may be uninhabited). Thus, Article
    2322 provides the standard in this case involving a defective crane on an uninhabited
    offshore drilling platform. See 
    Moczygemba, 561 F.2d at 1151
    –52.4
    Although the premises-liability articles are now “negligence-based,” see
    
    Myers, 801 So. 2d at 1104
    , some courts have indicated that the “general negligence”
    articles provide for recovery based on injury from a premises defect. For example,
    Meyers relies on the Fifth Circuit opinion in Ukudi v. McMoran Oil & Gas L.L.C.,
    in which the plaintiff alleged that the defendant was liable for failing to discover and
    repair unreasonably dangerous conditions on an offshore drilling platform owned by
    the defendant. See 587 F. App’x 119, 120–21 (5th Cir. 2014) (per curiam). The court
    3
    Although not required expressly by the statute, Louisiana courts have required proof of
    this element—unreasonable risk of harm—under both negligence and strict-liability versions of
    the statute. See 
    Broussard, 113 So. 3d at 183
    (citing Entrevia v. Hood, 
    427 So. 2d 1146
    , 1148–49
    (La. 1983)).
    4
    But even if Article 2322 were inapplicable, resort would be to Article 2317. See 
    Olsen, 365 So. 2d at 1290
    (stating that even if an offshore drilling platform were not a building within the
    meaning of Article 2322, liability could be shown under Article 2317 for “things”). Under the
    related Article 2317.1, a plaintiff must prove: (1) the property which caused the damage was in the
    custody of the defendant; (2) the property had a condition that created an unreasonable risk of
    harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of
    the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk.
    Graupmann v. Nunamaker Family Ltd. P’ship, 
    136 So. 3d 863
    , 867 (La. Ct. App. 2013).
    10
    indicated that the Louisiana Civil Code offered “three possible bases for this claim:
    Articles 2315 and 2316, Louisiana’s general negligence provisions; Article 2317,
    which imposes liability for injuries caused by items in the defendant’s custody; and
    Article 2322, which imposes liability for injuries caused by the ruin of the
    defendant’s building.” 
    Id. at 121–22.
    Ukudi does not stand for the proposition, however, that a jury charge under a
    negligent-activity theory adequately submits a premises-liability claim. Ukudi
    recognizes that under any of the statutory “bases” listed, a plaintiff still must prove
    that “the defendant knew or should have known of the condition that caused the
    harm.” 
    Id. at 122.
    Indeed, the plaintiff alleged three types of claims: a premises
    liability theory; a theory based on active negligence of the defendant’s contractors;
    and the defendant’s own negligence for failing to implement safety policies. See 
    id. at 121.
    The Fifth Circuit analyzed the latter two claims separately from the premises
    liability claim, noting that the plaintiff would have to show the familiar elements of
    duty, breach, causation, and damages regarding a negligence claim. See 
    id. at 123.
    Ukudi indicates that the “general negligence” articles provide for a claim
    because, before the 1996 tort reform, a plaintiff in Louisiana could sue for a premises
    defect under two distinct theories: negligence or strict liability. See Buffinet v.
    Plaquemines Parish Comm’n Council, 
    645 So. 2d 631
    , 635 (La. Ct. App. 1994).
    Negligence required an extra element of proof—scienter, or the “knew or should
    have known” element. See 
    id. at 635–36;
    Silliker v. St. Landry Parish Police Jury,
    
    520 So. 2d 880
    , 885 (La. Ct. App. 1987). Since tort reform, however, the elements
    under a “negligence” theory and “custodial liability” theory are identical. See
    Cheramie v. Port Fourchon Marina, Inc., 
    211 So. 3d 1212
    , 1215 (La. Ct. App.
    2017); 
    Graupmann, 136 So. 3d at 867
    .
    11
    Several Louisiana cases support the notion that negligent-activity and
    premises-liability claims are separate and distinct, such that a jury charge submitting
    one theory does not submit the other. For example, in Kelly-Williams v. AT&T
    Mobility, LLC, the court of appeals upheld the trial court’s refusal to submit a
    general-negligence jury interrogatory in a case where a sign fell and struck the
    plaintiff inside an AT&T store. See 
    90 So. 3d 1071
    , 1077 (La. Ct. App. 2012). The
    jury charge included only interrogatories under the Louisiana Merchant Liability
    Act, which requires a plaintiff in a slip-and-fall case to prove, in addition to the usual
    requirements for negligence, several premises-liability issues: (1) the condition
    presented an unreasonable risk of harm to the claimant, and the risk of harm was
    reasonably foreseeable; (2) the merchant either created or had actual or constructive
    notice of the condition; and (3) the merchant failed to exercise reasonable care. See
    
    id. at 1074–75
    (citing La. Stat. § 2800.6(B)).5
    The plaintiff in Kelly-Williams argued that “the trial court erred by failing to
    include on the verdict form a jury interrogatory on the law of general negligence, as
    opposed to language from the [statute].” 
    Id. at 1074.
    The plaintiff argued that
    “general negligence rules should have been included on the jury form, so that the
    jury potentially could have found AT&T liable under either general negligence law,
    the Louisiana Merchant Liability law, or both.” 
    Id. at 1075.
    The court noted that the
    plaintiff objected “to her case becoming exclusively a premises liability case due to
    the limited scope of the verdict form.” 
    Id. The court
    in Kelly-Williams held that the trial court did not err by omitting
    general negligence interrogatories. 
    Id. at 1076.
    The court noted that when a “trip and
    fall accident is allegedly the result of a specific act of an employee and not solely
    5
    Nothing in the statute affects any liability that a merchant may have under Articles 2317
    or 2322. See La. Stat. § 2800.6(D).
    12
    the result of a condition found on the premises, the principles of negligence are
    applicable.” 
    Id. at 1075
    (quoting Frelow v. St. Paul Fire & Marine Ins. Co., 
    631 So. 2d
    632, 635 (La. Ct. App. 1994)); see also Chester v. Wal-Mart Stores, Inc., Civ. A.
    No. 91-1554, 
    1994 WL 532634
    , at *1 (E.D. La. Sept. 27, 1994) (“When the accident
    is solely the result of a condition found on the premises, general negligence
    principles do not apply and courts must apply [the Merchant Liability Act].”). The
    court distinguished this case from one involving active negligence, in which an
    employee was using a vacuum cleaner, and the plaintiff tripped on the cord. See 
    id. (citing Crooks
    v. Nat’l Union fire Ins. Co., 
    620 So. 2d 421
    (La. Ct. App. 1993)). In
    Kelly-Williams, there was no evidence of “any analogous action on the part of AT&T
    employees [that] caused the sign to fall.” 
    Id. The court
    held, “In the absence of any
    evidence suggesting negligence on the part of any employee, it cannot be said that
    the trial court erred in failing to include general negligence in the jury form.” 
    Id. at 1076.
    In the Crooks case, there was evidence that the plaintiff was injured due to a
    Wal-Mart employee’s active negligence while vacuuming. See 
    Crooks, 620 So. 2d at 423
    . The trial court included negligence and Merchant Liability Act instructions
    in the charge, but the court omitted a general-negligence interrogatory related to
    Wal-Mart’s employee. See 
    id. at 424–25.
    The court of appeals “agree[d] with the
    plaintiff’s argument that the jury was prevented from considering the actions or
    conduct of the Wal-Mart employee” and that the trial court “should have included
    an interrogatory to the jury as to the applicability of the conduct of the store
    employee under general negligence principles.” Id.6
    6
    The Crooks court held that this error misled the jury, so the court conducted a de novo
    review of the record and rendered a judgment for the plaintiff on a general-negligence claim. 
    See 620 So. 2d at 425
    , 430. In Louisiana, when reviewing a judgment rendered pursuant to a jury
    verdict under erroneous jury instructions, an appellate court’s “review tends to involve trial de
    13
    Although Kelly-Williams and Crooks dealt with a different premises-liability
    statute than the one we are confronted with in this case, the decisions are sufficiently
    analogous to show that Louisiana courts indeed recognize a distinction between
    “general negligence” (i.e., negligent activity) and premises liability. Under
    Louisiana law, negligence and premises-liability claims require plaintiffs prove
    different, albeit similar, elements. Compare 
    Thibodeaux, 74 So. 3d at 853
    (elements
    of negligence), with 
    Broussard, 113 So. 3d at 182
    –83 (elements of premises liability
    under Article 2322), and 
    Graupmann, 136 So. 3d at 867
    (elements of premises
    liability under Article 2317.1).
    Accordingly, we hold that general negligence and premises liability are
    different theories of recovery under Louisiana substantive law for purposes of Rule
    279. Under the rule, W&T is entitled to a take-nothing judgment if the proper theory
    novo for all practical purposes” whereby the appellate court is “in effect, a court of original
    jurisdiction,” free to make its own factual determinations. Higgins v. Johnson, 
    349 So. 2d 918
    , 925
    (La. Ct. App. 1977); see Gonzales v. Xerox Corp., 
    320 So. 2d 163
    , 164–65 & n.1 (La. 1975); see
    also La. Code Civ. Proc. art. 2164 & cmt. a (noting that the purpose of this article requiring
    appellate courts to render “any judgment which is just, legal, and proper upon the record” is to
    “give the appellate court complete freedom to do justice on the record irrespective of whether a
    particular legal point or theory was made, argued, or passed on by the court below”). See generally
    Leon D. Hubert, Jr., The Theory of a Case in Louisiana, 24 Tul. L. Rev. 66, 75 (1949) (noting that
    “the theory of a plaintiff as to the nature of his case does not prevent him from shifting his theory[,]
    and his failure to make a required change in theory will not prevent the court from deciding the
    case on the proper theory”; discussing the “change of theory on appeal” where a plaintiff “has tried
    and argued the case below on theory A and on appeal for the first time presents theory B, on the
    same facts,” and noting that an appellate court could remand for further evidence, which “would
    be superior to [a system] in which the court admits that a plaintiff should win on the established
    facts if theory B is applied to them, but refuses to apply theory B because it was not argued below”).
    Meyers does not contend that these principles should apply to a Texas appellate court in a
    case applying Louisiana law as surrogate federal law under OCSLA. Since Meyers agrees that this
    court should apply Rule 279 of the Texas Rules of Civil Procedure in this case, we follow the
    Texas Supreme Court’s interpretation of Rule 279. See, e.g., Rice v. Rice, 
    533 S.W.3d 58
    , 62 (Tex.
    App.—Houston [14th Dist.] 2017, no pet.) (“Under principles of vertical stare decisis, Texas
    intermediate appellate courts and trial courts are bound by the decisions of the Texas Supreme
    Court.”).
    14
    of recovery is premises liability because the jury charge in this case did not submit
    a premises-liability question. See United 
    Scaffolding, 537 S.W.3d at 469
    –70. We
    must now determine the proper theory of recovery.
    V.    Premises Liability Is the Proper Theory of Recovery
    To determine a plaintiff’s proper theory of recovery under Rule 279, courts
    look to the source of the plaintiff’s injury, the pleadings and allegations, and the
    evidence presented at trial. See 
    id. at 479.
    Meyers was injured when a defective crane
    cable snapped and caused part of the crane to fall on his foot. Both parties’ experts
    agreed the cable was defective. Meyers pleaded that W&T failed to warn Meyers of
    hidden danger aboard the platform, failed to maintain a safe work environment, and
    failed to inspect, maintain, and repair equipment. There was no allegation or
    evidence presented at trial that any W&T employee or representative was engaged
    in any activity at or around the time of the injury to cause the cable to break.
    Meyers’s theory of liability was based on W&T’s failure to replace the cable after
    Meyers had told W&T six months earlier that the cable needed to be replaced. In
    sum, Meyers alleged and proved that W&T owned the platform and failed to remedy
    a known defective condition.
    This case presents a clear example of a premises-liability theory. See Kelly-
    
    Williams, 90 So. 3d at 1074
    –76 (no error to submit only premises-liability
    interrogatories when a falling object struck a child); see also 
    Moczygemba, 561 F.2d at 1151
    –52 (assuming error when the trial court failed to instruct the jury under
    Article 2322 in a case involving the fall of a crane from an offshore drilling
    platform).
    Accordingly, Meyers’s failure to request or secure findings to support his
    premises-liability claim cannot support a recovery in this case. See United
    15
    
    Scaffolding, 537 S.W.3d at 483
    . The trial court erred by denying W&T’s motion for
    JNOV.
    W&T’s first issue is sustained.
    CONCLUSION
    Having sustained W&T’s dispositive issue, we reverse the trial court’s
    judgment and render a judgment that Meyers takes nothing.
    /s/    Ken Wise
    Justice
    Panel consists of Justices Christopher, Brown, and Wise.
    16