Admire, Robert G., Jr. v. H.E. Butt Grocery Company ( 2003 )

Opinion issued January 30, 2003

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-00060-CV

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ROBERT G. ADMIRE, JR., Appellant

V.

H.E. BUTT GROCERY COMPANY, Appellee

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On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 9918890

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MEMORANDUM OPINION

          Robert G. Admire Jr., appellant, fell from a ladder leading to H.E.B. Grocery Company’s roof top while working as an independent contractor servicing H.E.B.’s refrigeration units. Admire sued H.E.B. for negligence. A jury found that H.E.B., as property owner of the premises where the accident occurred, was not negligent and was not in control of appellant’s work performance. The court rendered judgment for appellee. Appellant challenges the judgment rendered against him. He raises five issues on appeal, complaining that (1) the jury charge was fatally defective, (2) appellee judicially admitted negligence, (3) the finding of no negligence against appellee was against the great weight and preponderance of the evidence, (4) the evidence was insufficient to support a finding of contributory negligence, and (5) the jury damage findings were against the great weight and preponderance of the evidence.

I. Background

           On August 3, 1998, appellant, was working as a refrigeration mechanic for Service Refrigeration. H.E.B. contracted with Service Refrigeration to repair and service coolers and refrigeration units. Appellant’s job was to repair air conditioning, refrigeration, heating, or ice machines, including those located at H.E.B. #349. On August 3, 1998, appellant was sent to H.E.B. #349 to service a cooling unit located on the roof of the store. Appellant fell from the ladder while attempting to descend from the roof of the store after completing his work.

II. Defective Jury Charge

           Appellant’s first issue asserts that the court’s jury charge was fatally defective for several reasons.

A.       Applicability of Civil Practice & Remedies Code Section 95.003

           Appellant first claims the trial court abused its discretion by submitting this case under Texas Civil Practice and Remedies Code section 95.003. Tex. Civ. Prac. & Rem. Code § 95.003 (Vernon 1997). Appellant contends that section 95.003 does not apply to these facts because he was not at H.E.B.’s premises to construct, repair, renovate or modify the roof hatch entry system which included the ladder.

           In Fisher v. Chang, this court considered the applicability of section 95.003. Fisher v. Chang, 16 S.W.3d 198 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). We held that section 95.002 clarifies the scope of section 95.003. Id. at 201. Section 95.002 provides that section 95.003 pertains to personal injuries “that arise from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement.” See Tex. Civ. Prac. & Rem. Code Ann. § 95.002. Section 95.003 states that a property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless (1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports and (2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn. Tex. Civ. Prac. & Rem. Code Ann. § 95.003 (Vernon 1999).

           In Fisher, as in this case, the appellant fell from a ladder that he used to reach a roof to perform his job, the repair of air conditioning units. In Fisher, the appellant fell from a ladder used to access the work he was called to repair. In Fisher, the appellant argued that because the ladder was not the subject of his work, a premises owner was not protected from liability under section 95.003 of the Texas Civil Practice and Remedies Code. In Fisher, we overruled Fisher’s arguments, and held that a premises owner is protected from liability if he has no knowledge of a defect on the premises and did not retain control over the contractor’s work. Like in Fisher, appellant’s use of the ladder was related to the work being done. Section 95.003 does not require that the defective part be the object of his work. The Fisher facts are virtually identical to our facts. The appellant in Fisher made the same argument as appellant here. We held that nothing in the legislative history of section 95.003 indicated the statute applied only if the contractor was injured by the very object he was repairing. Id.

           The court did not abuse its discretion in submitting this case under Texas Civil Practice & Remedies Code section 95.003.

B.       Statutory Language of Jury Charge

           Appellant also claims that, even if chapter 95 is applicable to this case, question number three in the jury charge was improperly submitted because it failed to track the exact wording of the statute. Appellant complains that, instead of asking whether H.E.B. “exercised or retained some control” over the manner in which the work is performed, question number three asked only if H.E.B. “exercised some control.”

           When liability is asserted based upon a provision of a statute or regulation, a jury charge should track the language of the provision as closely as possible. Borneman v. Steak & Ale of Texas, Inc., 22 S.W.3d 411, 413 (Tex. 2000). An improper jury instruction is grounds for reversal only if it probably caused the rendition of an improper judgment. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001). To determine whether the instruction probably caused an improper judgment, we examine the entire record. Id. An improper instruction is especially likely to cause an unfair trial when the trial is contested and the evidence sharply conflicting. Id.

           “A property owner can retain the right to control an aspect of the independent contractor’s work in two ways: by contract or by actual exercise of control.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). Appellant has provided no evidence of a contractual agreement that explicitly assigned H.E.B. control over appellant’s work. In the absence of such agreement, a right of control can only be established through a premise owner’s actual exercise of control. Id.

           On cross-examination, appellant was asked if H.E.B. controlled the manner in which he performed his work and he answered “no.” Appellant testified that, once the store manager identified the unit to be repaired, appellant made the decisions and controlled the manner of the work that needed to be done. Eldridge Palmer, Jr., the service manager at Service Refrigeration, testified by deposition that he owned an interest in Comfort Systems which is the entity that owns “Edmond’s Service Refrigeration.” On direct examination, Eldridge was asked questions regarding H.E.B.’s control.

           Q:       With regards to diagnosing a problem on a refrigeration unit or some other piece of equipment at [an] H.E.B. store, whose responsibility is it to take control over that type of work?

           A:       Service Refrigeration.

           Q:       And in determining what types of repairs are supposed to be done, who makes the decisions with regards to controlling that manner of the work?

           A:       Service Refrigeration.

           Q:       Does H.E.B. in any way make those decisions or control the manner in which that work is done, to your knowledge?

           A:       No, sir.

Neither appellant nor Eldridge contend that H.E.B. exercised any control over Service Refrigeration’s contractors. The evidence regarding H.E.B.’s “control” was not sharply conflicting or contested since both appellant and Eldridge testified that H.E.B. did not retain any control over the contractors’ work. Based on the record in this case, we do not find that the court’s instruction probably caused the rendition of an improper judgment.

C.       Jury Instruction on Appellant’s Standard of Care

           Appellant next argues that the court erred in defining appellant’s standard of care as “a contractor of ordinary prudence” rather than defining it as “person of ordinary care.” The decision of whether to submit a particular definition is reviewed for an abuse of discretion, with the essential question being whether the definition aids the jury in answering the question. Harris v. Harris, 765 S.W.2d 798, 801 (Tex. App.—Houston [14th Dist.] 1988, writ denied). An instruction is proper if it might be of some assistance to the jury in answering the question submitted. La. & Ark. Ry. Co. v. Blakely, 773 S.W.2d 595, 598 (Tex. App.—Texarkana 1989, writ denied). Trial courts are given wide latitude to determine the sufficiency of explanatory definitions. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex. 1974).

           In Mobil Pipe Line v. Goodwin, this court held that professional men in general and those who undertake any work calling for special skill are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. Mobil Pipe Line Co. v. Goodwin, 492 S.W.2d 608, 613 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ ref’d n.r.e.). Appellant testified that he had received vocational training in repairing air-conditioning refrigeration and had also been working in the business since he was 12. The test for sufficiency of a definition is its reasonable clarity in performing its function. Harris v. Harris, 765 S.W.2d at 801.

           The trial court did not err in tailoring the traditional standard of a reasonable, prudent person to a specific category of individual warranted by the evidence in this case.

D.       Jury Question regarding appellant’s negligence

           Appellant claims the trial court abused its discretion in submitting a question regarding appellant’s negligence because the evidence was insufficient. A trial court may refuse to submit a relevant issue to the jury only if there is no evidence to support its submission. Garza v. Alvair, 395 S.W.2d 821, 824 (Tex. 1965). The test for determining whether there is some evidence, more than a scintilla, is if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact. Kindred v. Con/Chen, Inc., 650 S.W.2d 61, 63 (Tex. 1983). The record showed that appellant was familiar with the roof hatch and ladder and knew he needed to be careful when using that ladder. Appellant testified that he descended the ladder using one hand because he had his tool bag on the other despite his company’s safety policy of descending a ladder free of objects in his hands. Appellant’s own testimony at trial provided more than a scintilla of evidence regarding his negligence.

           Based on the evidence, the trial court did not err in submitting a question regarding appellant’s negligence.

           We overrule appellant’s first issue.

III. Opposing Party’s Admission

           Appellant’s second issue claims that appellee admitted negligence during trial testimony and in argument. To establish a judicial admission, one must prove the statement was made in a judicial proceeding; is contrary to an essential fact of the defense; is deliberate, clear, and unequivocal; and is related to a fact upon which judgment can be based. Sepulveda v. Krishnan, 839 S.W.2d 132, 135 (Tex. App.—Corpus Christi, 1992) aff’d, 916 S.W.2d 478 (Tex. 1995).

           Appellant relies on a hypothetical question regarding “duty” by appellant’s attorney to Jeff Morgan, appellee’s corporate representative, who agreed with the hypothetical. Shannon Simpson, H.E.B.’s acting manager, was asked similar hypothetical questions regarding “duty” to which she assented. We hold that the witnesses’s answers to the hypothetical questions are not deliberate, clear, and unequivocal statements of fact sufficient to constitute judicial admissions. Id. at 135.

           Appellant also cites appellee’s closing argument as a judicial admission.

In his final argument, appellee’s counsel said:

“During opening statement, I never once got up here and told you that H.E.B. was not going to accept responsibility, that H.E.B. was going to deny any fault in this case. I knew that Shannon Simpson and Jeff Morgan were going to come up there and they were going to accept responsibility for their actions, and that’s what they did. H.E.B. didn’t deny responsibility.”

           Appellant claims that the trial court erred in denying his motion for directed verdict as to liability based on this admission. We hold that appellee’s closing argument regarding H.E.B.’s responsibility was not a deliberate, clear, and unequivocal statement sufficient to constitute a judicial admission. We overrule appellant’s second issue.

IV. Factual Sufficiency

           Appellant’s third issue claims that the finding of no negligence against H.E.B. was against the great weight and preponderance of the evidence. In order to prevail, appellant had to prove that appellee was negligent and in control of appellant’s work.

           Even assuming the no-negligence finding against appellee was against the great weight and preponderance of the evidence, appellant would still not be entitled to a new trial because he did not obtain an affirmative finding in response to the question concerning “control.” Appellant did not obtain an affirmative finding from the jury on the control issue in answer to question number three. On appeal, appellant has not challenged the sufficiency of the evidence in support of the jury’s answer to question number three regarding “control.” See Tex. R. App. P. 33.1(a)(1)(A). Appellant’s failure to establish that H.E.B. controlled his work is dispositive of this issue and we need not address the sufficiency of the evidence regarding negligence. We overrule appellant’s third issue.

           For the reasons given above, appellant’s fourth and fifth issues also need not be addressed.

V. Conclusion

           We affirm the trial court’s judgment.

                                                                  Sam Nuchia

                                                                  Justice

Panel consists of Chief Justice Radack and Justices Hedges and Nuchia.