Coltharp v. Goodwill Industries

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50252
MICHAEL COLTHARP,
Plaintiff-Appellee,
versus
GOODWILL INDUSTRIES OF EL PASO INC,
Defendant-Cross Claimant-Appellant,
versus
UNITED STATES OF AMERICA,
Cross Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(EP-97-CV-38-F)
August 24, 2000
Before GARWOOD, DAVIS and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge*:
Goodwill Industries of El Paso, Inc. (Goodwill), defendant and
third-party plaintiff below, brings this appeal challenging both
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(a) the district court’s failure to reduce the award against it and
in favor of its employee plaintiff-appellee Michael Coltharp
(Coltharp) by his percentage negligence as found by the jury, and
(b) the district court’s judgment denying Goodwill any recovery on
its third party claim for indemnity or contribution against
appellee-third-party defendant the United States. We affirm.
Context Facts and Proceedings Below
This case began as a Texas law negligence suit filed in state
court by Coltharp against his employer Goodwill for injuries
Coltharp received on the evening of July 13, 1994, when, in the
course and scope of his employment, he strained himself and was
injured while pulling a pallet loaded with grocery items at the
Fort Bliss, Texas, Commissary, which is owned and operated by the
United States. Goodwill was a “nonsubscriber” under the Texas
Workers’ Compensation laws and did not carry workers’ compensation
insurance covering Coltharp. Hence, Coltharp’s suit was not a
worker’s compensation action but rather was a negligence suit.
Goodwill thereafter filed a third party claim against the
United States under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346(b), 2671 et seq. seeking indemnity and/or contribution in
respect to Coltharp’s claim against it. The United States then
promptly removed the action to the district court below. 28 U.S.C.
§§ 1441(a), 1442(a).
Goodwill had contracted in writing with the United States to
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perform night and day shelf stocking at the Commissary, and under
the terms of the contract it was an independent contractor.
Coltharp was injured while performing some of Goodwill’s shelf
stocking duties under this contract. The Commissary was undergoing
renovation, including the installation of new floor tile. None of
the renovation work was any part of Goodwill’s contract with the
United States. Because some of the new tiles had broken, the
United States had rubber mats and plastic sheeting placed over them
to protect them from damage, including that incident to moving
pallets over them during shelf stocking.
The mats and sheets had been so placed at least the day before
the day on which Coltharp was injured. The placement of the mats
and sheeting was not done by Goodwill and was not a part of its
contract, but it made Goodwill’s moving of its pallets used by it
in the shelf stocking work it performed more difficult. For this
reason, Ms. Wood, Goodwill’s project manager (the contract required
Goodwill to have an on-site project manager with overall
coordination of all daily work under the contract), being concerned
for the safety of the Goodwill employees, on the morning of the day
Coltharp was injured requested of the Commissary manager (an
employee of the United States) that the mats be removed. The
Commissary manager refused. Ms. Wood accordingly determined to
advise the Goodwill day and night shift personnel of her concerns
and to allocate additional pullers to move the pallets. She
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testified six to nine pullers should have been working the night of
plaintiff’s injury to move the pallets over the mats and because it
was an unusually busy night. However, only three pullers actually
worked that evening.
When Coltharp began his duties that evening he realized that
the mats on the floor made his work more difficult, and expressed
his concern to Mr. Mier, the Commissary nighttime supervisor (an
employee of the United States). Mier told him the mats could not
be removed. Coltharp later voiced his concern to Marquez, his
Goodwill supervisor. Marquez requested of Mier that the mats be
removed and Mier again refused.
Marquez then suggested to Coltharp that he try to maneuver
around the mats. Moving a pallet over a mat was less of a problem
when one person pushed and another pulled; whether to seek such
assistance was left to the discretion of each individual puller.
Coltharp successfully moved his pallet over the mats several times
before his injury, including five or six times, at least some of
which were with the assistance of another puller, over one
particularly difficult area at which Coltharp ultimately suffered
his injury. That occurred as he was moving the pallet by himself
but thought that a fellow Goodwill employee, who was behind him,
would offer assistance when he began to have trouble, but the
fellow employee did not. Coltharp then felt a sharp pain in his
groin and suffered severe injury.
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The Goodwill contract with the United States provided, as Ms.
Wood was aware, that Goodwill was entitled to seek extra
compensation from the United States should the United States change
the conditions under which Goodwill had to perform its duties under
the contract. Goodwill did not seek any such extra compensation.
Coltharp‘s case against Goodwill was tried to the jury and
Goodwill’s contribution/indemnity claim against the United States
was simultaneously bench tried. The jury found that the negligence
of Coltharp, Goodwill and the United Sates, each, was a proximate
cause of Coltharp’s injury (Q1); that as between Coltharp and
Goodwill, 97% of the causative negligence was Goodwill’s and 3% was
Coltharp’s (Q2); that as between Goodwill and the United States,
65% of the causative negligence was Goodwill’s and 35% was the
United States’ (Q3); and that Coltharp’s actual damages amount to
$125,000 (Q4). The district court treated the jury’s verdict as
binding for purposes of Coltharp’s suit against Goodwill; in regard
to Goodwill’s claim for contribution and indemnity against the
United States, the district court treated the jury’s verdict as
advisory only and entered its own findings of fact and conclusions
of law. The district court rendered judgment on the verdict for
Coltharp against Goodwill in the amount of $125,000, and, on the
basis of its findings and conclusions, rendered judgment that
Goodwill take nothing on its claim against the United States.
Goodwill brings this appeal raising only the following two
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claims of error, stated in its brief as follows:
“1. The first issue on appeal is whether the
comparative negligence of Michael Coltharp is to be
considered pursuant to Texas law in determining whether
or not to reduce the money judgment by the percentage of
negligence the jury determined attributable to the
Plaintiff.
2. The second issue on appeal is whether or not the
United States retained sufficient control over the part
of the work assigned to Goodwill Industries of El Paso,
as an independent contractor as to create a legal duty by
which the United States would be responsible for its
negligent acts.”
Discussion
1. Effect of plaintiff Coltharp’s contributory negligence
The question posed by this issue had, at the time this case
was orally argued, divided the Texas Courts of Appeal, and
applications for writs of error to the Supreme Court of Texas
raising that issue were pending or possible. As we advised the
parties, we accordingly withheld our decision to see if the Texas
Supreme Court would review one or more of those decisions and
resolve the issue. It recently did so in The Kroger Co. v. Keng,
No. 98-1012, Tex. Sup. Ct., May 11, 2000, rehearing denied August
24, 2000 (affirming the decision of the Tyler Court of Appeals, 976
S.W.2d 882 (1998)). Kroger holds that where an employee sues his
employer, who is a non-subscriber to workers’ compensation
insurance, for an injury incurred in the course and scope of his
employment, of which a proximate cause is the negligence of the
employer, the fact that the employee’s negligence is also a
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proximate cause of the injury not only does not bar the employee’s
recovery from the employer but does not in any way reduce that
recovery. Under Kroger the district court correctly rendered
judgment for Coltharp against Goodwill in the full amount of his
$125,000 damages found by the jury, without any reduction on
account of the jury’s finding of 3% causative negligence on the
part of Coltharp. We accordingly reject Goodwill’s first claim of
error.
2. Liability of the United States
In its findings and conclusions the district court stated:
“5. . . . The FTCA expressly has not waived liability
[of the United States] for the negligent acts of its
independent contractors. United States v. Orleans, 425
U.S. 807, 814 (1976) . . .
6. In Texas, the United States has no duty to see that
an independent contractor performs its work in a safe
manner. Levrie v. Department of the Army, 810 F.2d 1311
(5th Cir. 1987) . . .
7. Under Texas law, the duty of the United States to its
independent contractor is similar to that of an owner or
occupier of land to a business invitee. Shell Oil Co. v.
Lamb, 493 S.W.2d 742, 747 [Tex. 1973]. One duty is to
warn of hidden dangers that exists when a contractor
enters the premises, or that arise from activity other
than that of the contractor. Id.; Levrie, 810 F.2d at
1313.
8. The United States owed no such legal duty to its
independent contractor Goodwill because the placement of
the mats was sufficiently open and obvious so as not to
constitute a hidden danger on the premises.
9. The second duty to an independent contractor involves
injuries caused by an activity or instrumentality on the
premises. Where the employer retains control of a part
of the work assigned to the contractor, the employer has
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a duty to exercise that control with reasonable care.
Levrie, 810 F.2d at 1313; Redinger v. Living, Inc., 689
S.W.2d 415, 417 (Tex. 1985). The “retained control” over
the work “must be more than a general right to order the
work to start or stop, to inspect progress or receive
reports.” Redinger, 689 S.W.2d at 417.
10. The evidence at trial demonstrated that the United
States did not retain control over the work of the
independent contractor within the meaning of Texas law.
Under the Commissary Contract, the United States did not
retain the right to direct Goodwill employees as to the
details of their work; the Contract further provided that
Goodwill was entitled to seek extra compensation should
the United States change the conditions under which
Goodwill was to perform under the contract. Plaintiff
and other Goodwill employees took their instructions from
Goodwill supervisors, not United States’ employees.
Goodwill employees were not directed by United States
employees on how to do their jobs.
11. Defendant [Goodwill] at all times retained control
of the work it had been contracted to perform. Goodwill
project manager Janet Wood was aware of the placement of
the mats and the government’s position with respect to
removal of the mats well before Plaintiff arrived to work
on the evening of Plaintiff’s injuries. With the notice,
Goodwill had an opportunity to provide for additional
personnel or develop an alternative plan for delivering
the food items. Ms. Wood attempted to make arrangements
for additional personnel; the evidence at trial
demonstrated that when two or more persons “pushed and
pulled” the pallets across the mats, the mats could be
successfully negotiated without substantial difficulty.
12. Because the United States did not retain control
over part of the work assigned to its independent
contractor, the United States owed no legal duty to
Goodwill with respect to the placement of the mats on the
tile floor of the Commissary. . . .”
Goodwill admits that “the dangers were open and obvious.”
However, it contends that “the United States is responsible as a
result of retaining control.”
Under our holding in Levrie v. Department of Army, 810 F.2d
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1311 (5th Cir. 1987), the question of whether the United States
retained sufficient control over its independent contractor within
the meaning of Texas law so as to be liable thereunder on the basis
asserted is a question of fact, and we review the district court’s
finding that the United States did not retain sufficient such
control under the clearly erroneous standard. Thus, in Levrie, we
stated:
“Under the terms of the Federal Torts Claims Act, the
United States is not liable for the negligence of a
government contractor.
. . .
Under Texas law, the owner of property has a general duty
to use reasonable care to keep the premises under his
control in a safe condition. This duty may subject the
owner to liability for negligence in two situations: (1)
those arising from a defect in the premises, and (2)
those arising from an activity or instrumentality.
Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.
1985). This case involves the latter.
Texas law provides generally that a property owner does
not have a duty to ensure that an independent contractor
performs his work in a safe manner. Abalos v. Oil
Development Co., 544 S.W.2d 627, 631 (Tex. 1976). Nor
does the owner have a duty to protect the contractor’s
employees from hazards that are incidental to, or part
of, the work the independent contractor is hired to do.
Shell Oil Co. v. Songer, 710 S.W.2d 615, 618 (Tex.App.-
Houston [1st Dist.] 1986, no writ). However, when the
owner of the premises exercises control over or
interferes with the contractor’s performance of his work,
the owner may be liable unless he exercises reasonable
care in supervising the contractor’s activity. Redinger,
689 S.W.2d at 418. In Redinger, the Texas Supreme Court
stated that supervisory control might consist of the
power to direct the order in which work shall be done or
power to forbid its being done in a dangerous manner.
Id.
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The district court found that the defendants did not
control the operations of Williams [the independent
contractor] within the meaning of Texas law. This is a
finding of fact, which we review under the clearly
erroneous standard . . .” Id. at 1314 (emphasis added).
After review of the record and consideration of the briefs and
argument of counsel, it is apparent to us that the district court’s
findings are not clearly erroneous and that it committed no error
of law in holding for the United States. We accordingly reject
Goodwill’s second point of error.
Conclusion
For the reasons stated, the judgment of the district court is
AFFIRMED.
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