Ramer Concrete, Inc. v. Juan Cardona

AFFIRMED; Opinion Filed November 1, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01435-CV
RAMER CONCRETE, INC., Appellant
V.
JUAN CARDONA, Appellee
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-16-00560-C
MEMORANDUM OPINION
Before Justices Myers, Evans, and Brown
Opinion by Justice Evans
This is a work-related personal injury case involving a workers’ compensation non-
subscriber. After a bench trial, Ramer Concrete, Inc. appeals from an adverse judgment on
negligence claims brought by former employee Juan Cardona. In two issues, Ramer generally
complains about the trial court’s failure to file findings of fact and conclusions of law and
challenges the legal sufficiency of the evidence supporting the trial court’s judgment. Cardona
has not filed a brief in this appeal. For the reasons set forth below, we affirm the trial court’s
judgment.
BACKGROUND
It is undisputed that Cardona has worked as a concrete laborer for Ramer on and off since
1997. The parties stipulated that he was an employee of Ramer on March 11, 2014, the day of the
accident. The accident occurred during a construction project on which Ramer was the
subcontractor hired to pour concrete. Ramer, in turn, had contracted with Gene’s Construction to
provide the concrete pumping equipment for the job. While two employees from Gene’s
Construction operated the pump, Ramer employees poured the concrete using the hoses provided
by Gene’s Construction.
The accident occurred during the clean-up phase of the project, when pressure is sent
through the hose to clean out the cement. Cardona stated he was injured when the hose he and two
other Ramer employees were holding down under a piece of plywood, kicked up and struck
Cardona on his right hand, throwing his right arm such that the palm of his hand went up past his
ear. Cardona immediately felt pain in his right hand, where the thumb joins the palm, as well as
pain in his right arm and right shoulder. He also felt pain in his neck that day. Cardona testified
that his supervisor, Ray Lopez, was not present when the accident occurred.
Cardona testified that in all his previous jobs with Ramer, he was always involved in
helping clean out the hose. According to Cardona, when they cleaned out the hose in the past,
there were always six to eight people holding the hose down. Cardona opined the accident on
March 11 occurred because there were only three people holding the hose that day. Cardona
testified that Florentino Martinez was one of the two people helping him hold down the hose.
Martinez contradicted Cardona’s testimony, however, testifying that although he worked at the job
site on the day Cardona was injured, he was not present when Cardona was injured. 1 Martinez
stated he had gone to the truck and when he returned, Cardona and another person had cement on
their faces and bodies.
Although he finished his shift the day of the accident, Cardona had a lot of pain. Cardona
testified that as the day went on, the pain got worse. Cardona had a lot of difficulty doing anything
1
Martinez was still employed by Ramer at the time he testified.
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with his shoulder, hand, and arm because of the pain. The day after the accident, Cardona went to
work. When Lopez saw his swollen hand, he directed him to get checked out at a specified medical
clinic. The following day, Cardona presented to the clinic with complaints about his right hand
and arm. He reported that his arm hurt a lot when it was raised and he could not use his hand or
flex his thumb. X-rays of the hand revealed no fracture. The records reveal the doctor suspected
tendon damage and ordered an MRI of the Cardona’s right thumb. Among other things, the MRI
performed on April 29, 2014 revealed persistent mild marrow edema along the ulnar aspect of
Cardona’s right thumb and findings “concerning for possibility of a small avulsion fragment at the
distal insertion of the ulnar collateral ligament” and recommended x-ray correlation. The MRI
impression suggested that if no fragment was detected, “partial tearing of the distal ulnar collateral
ligament is suspected.”
The clinical medical records indicate Cardona first complained that his shoulder was
making a popping noise on April 8. According to Cardona, however, the clinic only treated his
hand where he was struck, gave him pain medication, and released him from care on April 14.
Cardona was still in a lot of pain after he was released from treatment.
From May 2 through June 2, Cardona sought additional treatment for his injuries from a
chiropractor in Oak Cliff. Cardona missed about two to three months of work immediately after
the accident and never returned to work for Ramer. Cardona testified that on the evening of the
accident, he could not do anything because he had a lot of pain in his hand, arm, and shoulder.
Cardona continued to have difficulty with daily activities involving grabbing, grasping, and
picking up objects with his hand as reflected in the May 2 records from the chiropractor. Also, the
pain in his hand, arm, and shoulder prevented him from doing many activities including showering,
tying his shoes, and playing ball and hugging his grandson at least from the date of the accident to
when he completed treatment on June 2. After he was released from chiropractic treatment on
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June 2, he felt better, but he continued to have some pain and impairment. Cardona testified that
within the last six months leading up to the trial, he continued to experience pain and impairment
about once a month.
Contrary to Cardona’s testimony, Ramer’s owner/president John Winger testified that
Gene’s Construction was totally responsible for its pump and the cleaning of the hoses. Winger
also stated it takes only one person to clean out a cement hose, although he had never done it.
Winger asserted his employees never hold down the hose for cleaning and that cleaning is never
done by or the responsibility of Ramer. Winger further denied that Cardona was holding down
the hose on the day he was injured and speculated he may have been injured when a rock blew out
of the hose and hit Cardona in the hand as Gene’s Construction employees cleaned out the pump.
Nevertheless, Winger did admit that during hose cleaning, there is pressure used and a sponge ball
is blown through the hose “and it needs to have some safe stuff going on” and “there’s usually a
designated place that they wash out.” Winger also admitted there was risk involved in cleaning
the hose.
Ramer also presented testimony from chiropractor Ronald Clifford indicating the
chiropractic treatment Cardona received was neither reasonable nor necessary for the injuries he
sustained in the accident. After the trial, the trial court signed a final judgment against Ramer
awarding Cardona damages plus prejudgment interest and costs totaling $39,801.62. Despite
Ramer’s timely request for findings of fact and conclusions of law and notice of past due findings,
the trial court did not issue any findings. This appeal ensued.
ANALYSIS
A. Findings of Fact and Conclusions of Law
In his first issue, Cardona argues the trial court erred in failing to file requested findings of
fact and conclusions of law. After a bench trial, and pursuant to a party’s proper and timely
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requests for findings under rules 296 and 297 of the Texas Rules of Civil Procedure, the trial court
is required to make findings on the controlling or ultimate issue in the case. See Guaranty Bond
State Bank v. Tucker, 462 S.W.2d 398, 404–05 (Tex. App.—Dallas 1970, writ ref’d n.r.e.). But
the trial court is not required to make findings on evidentiary matters or undisputed facts. Id. at
405. An ultimate fact issue is one essential to the cause of action and seeks a fact that would have
a direct effect on the judgment in contrast to an evidentiary issue which the court may consider in
merely deciding the controlling issue. See In re Marriage of Edwards, 79 S.W.3d 88, 95 (Tex.
App.—Texarkana 2002, no pet.).
When the trial court fails to enter findings on an ultimate issue, harm to the complaining
party is presumed unless the record before us affirmatively shows the complaining party suffered
no injury. See Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017). In determining
harm, we consider whether the lack of findings prevents the appellant from properly presenting
the issues presented for review on appeal. Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996).
Generally, an appellant is harmed if, under the circumstances of the case, it must guess at the
reason the trial court ruled against it. See Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611,
614 (Tex. App.—Dallas 2003, pet. denied). But fact findings are not necessary when the matters
in question are not disputed or when there is only one ground of recovery or defense. See Ad
Villarai, 519 S.W.3d at 135.
Ramer argues it must guess as to the reasons the trial court ruled against it because
Cardona’s pleading asserted several causes of action and Ramer’s answer brought forth several
affirmative defenses. While Cardona’s live pleading may have contained other causes of action in
addition to its negligence claim, the evidence presented at trial focused exclusively on Cardona’s
negligence claim against Ramer. There was no other ground of recovery presented by Cardona at
trial. Ramer does not identify any other ground that would support the trial court’s judgment
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against it. In its appellate brief, Ramer acknowledges that, at trial, Cardona only pursued a
negligence claim based on inadequate manpower and that the final judgment awarded Cardona
damages on its negligence claim against Ramer. Based on the record before us and Ramer’s
acknowledgement on appeal, Ramer does not have to guess at the reason the trial court ruled
against it. We therefore conclude the record affirmatively shows Ramer suffered no injury from
the trial court’s failure to make findings of fact and conclusions of law. Accordingly, we resolve
Ramer’s first issue against it.
B. Legal Sufficiency
In its second issue, Ramer challenges the legal sufficiency of the evidence to establish that
Ramer owed any duty to Cardona or that any duty breached by Ramer proximately caused
Cardona’s injury. Ramer also contends the evidence is legally insufficient to support certain
elements of the trial court’s damage award.
To succeed on its legal sufficiency complaint, Ramer must show there was no evidence to
support the challenged adverse findings. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348
S.W.3d 194, 215 (Tex. 2011). In our review, we consider evidence in the light most favorable to
the verdict, indulging every reasonable inference in support of the verdict and crediting favorable
evidence when reasonable factfinders could do so and disregarding contrary evidence unless
reasonable factfinders could not. See City of Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex.
2005). If more than a scintilla of evidence exists to support the challenged element, the legal
sufficiency challenge must fail. See Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
To prevail on a general negligence cause of action based in any theory of liability, a
plaintiff must prove (1) a legal duty, (2) breach of that duty, and (3) damages proximately caused
by the breach. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). The
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existence of a duty is a question of law for the court to decide from essential undisputed facts
surrounding the occurrence in question or when the evidence conclusively establishes the pertinent
facts and reasonable inferences to be drawn from them. See Joeris Gen. Contractors, Ltd. v.
Cumpian, 531 S.W.3d 187, 191 (Tex. App.—San Antonio 2016, pet. denied). Proximate cause
includes the components of cause in fact and foreseeability. See Bustamante v. Ponte, 529 S.W.3d
447, 456 (Tex. 2017). Cause in fact requires a showing that the act or omission was a substantial
factor in bringing about the injury and without which harm would not have occurred. Id.
Foreseeability, on the other hand, addresses the proper scope of a defendant’s legal responsibility
for negligent conduct that in fact causes harm and asks whether the harm should have been
anticipated and whether policy considerations should limit the consequences of a defendant’s
conduct. Rogers v. Zanetti, 518 S.W.3d 394, 402 (Tex. 2017).
The parties stipulated that Cardona was an employee of Ramer at the time of the accident.
An employer has a non-delegable duty to provide a safe place to work and adequate help in a work
assignment. See Drake v. Wilson N. Jones Med. Ctr., 259 S.W.3d 386, 389 (Tex. App.—Dallas
2008, pet denied). Although Winger admitted he was aware there were risks involved in cleaning
out the cement hose, he stated that Ramer employees never performed the task. He further
indicated that on the day of the accident, Gene’s Construction was responsible for cleaning the
hose because the hose belonged to Gene’s Construction. Cardona, on the other hand, testified that
he always helped clean out the hoses when he worked for Ramer and that there were typically
between six and eight employees holding the hose during clean out. Cardona further testified the
hose has a lot of pressure when it is being cleaned and it is held so the hose does not “splatter the
walls.” In response to the question, “Were you specifically told to hold the hose so that it would
not splash material at the construction site where you work?” Cardona replied, “Yes, sir.” On the
day Cardona was injured, however, there were only three Ramer employees and one supervisor,
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Lopez, at the job site. Cardona stated that he was holding the end of the hose along with the two
other Ramer employees when the pressure in the hose took over and “the hose won,” striking his
hand and causing his injuries. Accordingly, the evidence before the trial court was legally
sufficient to establish that Ramer breached the duty of care that Ramer owed to Cardona and that
the breach was a proximate cause of Cardona’s injuries. Our conclusion makes it unnecessary to
address Ramer’s additional arguments regarding negligence.
Ramer also asserts the evidence is legally insufficient to establish Cardona’s physical
impairment damages. Physical impairment is a distinct injury that includes limitations on physical
activities. See Estrada v. Dillon, 44 S.W.3d 558, 561–62 (Tex. 2001). Evidence of physical
impairment may include proof of the need for physical therapy, the inability to engage in certain
physical activities, or difficulty performing tasks. See Pierre v. Swearingen, 331 S.W.3d 150, 156
(Tex. App.—Dallas 2011, no pet.) (physical therapy and activities); Day v. Domin, No. 05-14-
00467-CV, 2015 WL 1743153, at *4 (Tex. App.—Dallas Apr. 16, 2015, no pet.) (mem. op.)
(tasks).
At trial, Cardona detailed how his injuries interfered with his daily life. He indicated that
for the almost three months he was being treated for his injuries, there were activities he could not
do or had difficulty performing such as playing with his grandson, showering, fastening his shoes,
and grasping objects with his right hand. He further indicated that he still had pain and impairment
about once per month in the six months leading up to the trial in August 2017. Viewing the
evidence in the light most favorable to the verdict, we conclude there was legally sufficient
evidence to support the trial court’s award for past physical impairment.
Ramer also contends the amount the trial court awarded for medical expenses should not
include the $7,212 chiropractic bill because the treatment was neither reasonable nor necessary for
the injuries he sustained in the accident. Cardona admitted into evidence a medical expense
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affidavit from his chiropractor’s office that the services provided to Cardona were necessary and
the amount charged was reasonable. Moreover, Cardona testified his right hand was swollen and
his arm, shoulder, and neck hurt the day of the accident. There was evidence that Cardona
complained to the clinic about his right hand and arm when he first presented for treatment.
Cardona also complained about pain radiating to his shoulder and his shoulder making popping
noises about one month after the accident. Ramer’s medical expert testified that the “mechanism
of injury did not support injuries sustained to the shoulder, right elbow, neck or back.” However,
on cross-examination the chiropractor admitted that trauma might cause a degenerative condition
to become symptomatic and that if an arm is whipped back and forward dramatically, it could, in
extreme circumstances, affect the spinal cord. Based on the conflicting evidence before the trial
court, we cannot conclude the evidence was legally insufficient to include Cardona’s chiropractic
bill in the amount awarded for his medical expenses.
Under its second issue, Ramer also argues that Cardona failed to mitigate damages with
respect to his claim for lost earnings because on the day of his initial visit to the medical clinic, the
doctor released Cardona to work light duty with a splint on his thumb with instructions not to lift
more than ten pounds. A defendant bears the burden of proof to establish the plaintiff’s lack of
diligence and the amount by which the failure to mitigate increased the damages. See U.S. Rest.
Props. Operating L.P. v. Motel Enters., Inc., 104 S.W.3d 284, 293 (Tex. App.—Beaumont 2003,
pet. denied).
Ramer’s mitigation argument is based on Winger’s testimony that “light duty” tasks
Cardona could have performed were carrying lumber, helping another worker carry steel, stakes,
washing the driveway down with the hose, and pulling out nails with his left-hand. Cardona
testified that in addition to the injury to his right hand, which prevented him from grasping objects
with his right hand, he had pain and impairment to his right arm and shoulder. Cardona also
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testified that he was right-handed. There is nothing in the record to indicate the Cardona would
be able to perform the tasks Winger considered to be light duty with only one working hand or that
the doctor’s definition of light duty necessarily contemplated the tasks identified by Winger.
Viewed in the light most favorable to judgment, the trial court could have determined that Ramer
simply did not meet its burden with respect to mitigation.
CONCLUSION
We resolve both of Ramer’s issues against it. We affirm the trial court’s judgment.
/David Evans/
DAVID EVANS
JUSTICE
171435F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RAMER CONCRETE, INC., Appellant On Appeal from the County Court at Law
No. 3, Dallas County, Texas
No. 05-17-01435-CV V. Trial Court Cause No. CC-16-00560-C.
Opinion delivered by Justice Evans,
JUAN CARDONA, Appellee Justices Myers and Brown participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Juan Cardona recover his costs of this appeal from
appellant Ramer Concrete, Inc.
Judgment entered this 1st day of November, 2018.
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