4Front Engineered Solutions, Inc. v. Carlos Rosales, Individually, and Rosa Mejia as Next Friend of Carlos Rosales, Jr.

NUMBER 13-13-00655-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
4FRONT ENGINEERED
SOLUTIONS, INC., Appellant,
v.
CARLOS ROSALES, INDIVIDUALLY,
AND ROSA MEJIA AS NEXT FRIEND
OF CARLOS ROSALES, JR., Appellees.
On appeal from the 389th District Court
of Hidalgo County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Garza
This is an appeal of a judgment in excess of $10 million rendered in a personal
injury suit arising from a forklift accident. Appellant, 4Front Engineered Solutions, Inc.
(“4Front”), argues that the trial court erred in rendering judgment in favor of appellees,
Carlos Rosales, individually, and Rosa Mejia as next friend of Carlos Rosales Jr.
(collectively “Rosales”), because: (1) Rosales’s counsel made an improper jury argument
resulting in incurable harm; (2) the evidence was insufficient to support the jury’s findings
that 4Front “exercise[d] or retain[ed] some control over the manner in which the work was
performed” and had “actual knowledge” of a danger posed by a premises defect; (3) the
jury’s negligent entrustment finding must be disregarded; (4) the evidence was insufficient
to support the jury’s finding as to causation; (5) the evidence was insufficient to support
the jury’s finding of gross negligence; (6) submission of a question on comparative
responsibility was error; (7) the evidence was factually insufficient to support the jury’s
finding as to comparative responsibility; and (8) the admission of Occupational Safety and
Health Administration (“OSHA”) regulations into evidence was error. We modify the
judgment to delete the exemplary damages award and affirm the judgment as modified.
I. BACKGROUND
4Front, a designer and manufacturer of loading dock equipment, operates a
warehouse in Pharr, Texas. In January of 2012, 4Front’s Pharr warehouse manager,
Tony Ornelas, hired licensed electrician Francisco Reyes to repair an illuminated
business sign mounted outside above the front door of the warehouse. Reyes enlisted
Rosales, also a licensed electrician, to assist him. Ornelas allowed Reyes to borrow one
of 4Front’s standing forklifts to do the job. On the second day of repairs, Reyes operated
the forklift for at least 45 minutes, moving it back and forth along the sidewalk so that
Rosales, who was standing on an enclosed platform attached to the raised forks, could
access the electrical connections for the sign. At some point, one of the forklift’s wheels
went off the edge of the sidewalk, causing the forklift to tip over and causing Rosales to
2
fall 25 feet to the ground. Rosales suffered injuries to his hip, leg, spine, and brain as a
result of the accident.
Rosales sued 4Front and Reyes, alleging premises liability, negligence,
negligence per se, and gross negligence. His petition alleged that Ornelas “completely
controlled the selection of equipment in use at the time of [Rosales]’s injury” and “ignored
requests by Reyes that [4Front] provide more appropriate equipment for the work.”
Rosales alleged that 4Front, through Ornales, knew that the forklift “was unsafe for the
use to which [4Front] insisted that it be used and that Reyes was not sufficiently trained
in the proper and safe use” of the forklift. The following is a summary of the evidence
presented at trial which is relevant to the issues raised on appeal.
A. Jerome Spear
Jerome Spear, an occupational health and safety consultant, testified as an expert
on behalf of Rosales. Prior to trial, the trial court had granted a motion in limine filed by
4Front requesting a hearing before admitting any testimony regarding OSHA regulations.
Accordingly, Spear testified at a hearing outside the presence of the jury that there is an
OSHA regulation—located in section 1910.178(l) of title 29 of the Code of Federal
Regulations—that sets basic requirements for training an operator to safely operate a
forklift such as the one at issue in this case. According to Spear, the regulation requires
all forklift operators to be trained, including “hands-on training in an area free of
obstructions” and “classroom type” training, and certified. Spear stated that, for OSHA
purposes, 4Front would be considered a “host employer” because “they provide the
means and methods for—to do the work on the site.” Spear identified an OSHA
interpretation letter dated April 6, 1999, specifying that warehouse operators “do not have
3
to train the employees or the contractor’s employees, but they have to ensure that they
are trained.” Spear stated that the OSHA regulation would be relevant to determining
whether the owner of a forklift “knew or should have known whether a person was
competent to operate the forklift.” He opined that, if the operator “cannot produce
verification of the [operator’s] training certification,” the forklift owner “should not allow
them to operate at the site.” Spear stated that he was aware that 4Front had adopted the
relevant OSHA regulations as part of its safety policy. After the hearing, the trial court
allowed Spear to testify as to the specific OSHA regulation applicable to forklift operators,
but not as to the general multi-employer citation policy promulgated by OSHA.
Spear later testified at trial that he investigated the incident and made two “critical
conclusions: One, it was the wrong machine for the job and two, there was no training or
certification for the operator.” He explained that the forklift was the “wrong machine for
the job” because there was “insufficient clearance between the unprotected edge of the
sidewalk and the edge of the forklift”—a total of “about nine inches on either side” with
the forklift “directly centered” on the sidewalk. Spear stated that, based on his observation
of the sidewalk, he would have known that it was necessary to move the forklift back and
forth in order to access the sign to be repaired, and that moving the forklift back and forth
was dangerous because “it increases your chances of rolling off the sidewalk.” He added
that moving the forklift back and forth in a straight line is “very difficult” because it has a
“reverse steering” mechanism and a three-point suspension system, which “makes it
easier to maneuver in tight corners, but conversely makes the back end swing quite a
bit.” He stated that a boom-supported elevated platform would have been the best
machine for this job because it has a wide, stable base and can extend or retract to make
4
it longer or shorter. Spear explained that a scissors lift, though better than a forklift
because it is narrower, would not be ideal because “you still would have to lower it before
you move it.” Spear testified that, if he was the safety officer at 4Front on the day in
question, he would not have allowed a standing forklift to be used to access the sign, and
he wouldn’t have allowed a scissors lift to be used for that purpose if there were better
options available.
Spear next explained that, in part because there are about 100 fatalities and
20,000 injuries that occur in the United States every year due to forklift accidents, OSHA
established standards in 1998 requiring forklift operators to be trained and certified. He
summarized the provisions of the pertinent OSHA regulation, a copy of which was entered
into evidence.1 He explained that the training requirements exist to protect not only
1 The OSHA regulation at issue applies to “fork trucks, tractors, platform lift trucks, motorized hand
trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines.”
29 CFR § 1910.178(a) (2014). The regulation states that, “[p]rior to permitting an employee to operate a
powered industrial truck (except for training purposes), the employer shall ensure that each operator has
successfully completed the training required by this paragraph (l), except as permitted by paragraph (l)(5)
[regarding avoidance of duplicative training].” Id. § 1910.178(l)(1)(ii). “Training shall consist of a
combination of formal instruction (e.g., lecture, discussion, interactive computer learning, video tape, written
material), practical training (demonstrations performed by the trainer and practical exercises performed by
the trainee), and evaluation of the operator’s performance in the workplace.” Id. § 1910.178(l)(2)(ii).
Operators “shall receive initial training in the following topics,” except those which the employer can
“demonstrate are not applicable to safe operation of the truck in the employer’s workplace”:
(i) Truck-related topics:
(A) Operating instructions, warnings, and precautions for the types of truck the
operator will be authorized to operate;
(B) Differences between the truck and the automobile;
(C) Truck controls and instrumentation: where they are located, what they do,
and how they work;
(D) Engine or motor operation;
(E) Steering and maneuvering;
(F) Visibility (including restrictions due to loading);
(G) Fork and attachment adaptation, operation, and use limitations;
(H) Vehicle capacity;
(I) Vehicle stability;
5
employees, but also to protect any other people that might be on site, including delivery
persons, pedestrians, visitors, or other contractors. He opined that 4Front failed to
comply with the OSHA regulations and the forklift’s operating manual by permitting “an
untrained person to operate the forklift” and that 4Front also violated its own “policy of not
loaning equipment to others.” Spear further stated that Reyes, the operator of the forklift
at the time of the accident, failed to comply with the operating manual because he (1)
used the forklift outdoors, and (2) attempted to move the forklift without first lowering the
forks.
(J) Any vehicle inspection and maintenance that the operator will be required
to perform;
(K) Refueling and/or charging and recharging of batteries;
(L) Operating limitations;
(M) Any other operating instructions, warnings, or precautions listed in the
operator’s manual for the types of vehicle that the employee is being
trained to operate.
(ii) Workplace-related topics:
(A) Surface conditions where the vehicle will be operated;
(B) Composition of loads to be carried and load stability;
(C) Load manipulation, stacking, and unstacking;
D) Pedestrian traffic in areas where the vehicle will be operated;
(E) Narrow aisles and other restricted places where the vehicle will be
operated;
(F) Hazardous (classified) locations where the vehicle will be operated;
(G) Ramps and other sloped surfaces that could affect the vehicle’s stability;
(H) Closed environments and other areas where insufficient ventilation or poor
vehicle maintenance could cause a buildup of carbon monoxide or diesel
exhaust;
(I) Other unique or potentially hazardous environmental conditions in the
workplace that could affect safe operation.
(iii) The requirements of this section.
Id. § 1910.178(l)(3). Operators must also be given “refresher training and evaluation” as necessary. Id.
§ 1910.178(l)(4).
6
Spear stated that, according to his investigation, Ornelas was in charge of safety
on the property, Ornelas made the decision to “select” Reyes to do the work, and Ornelas
“had to approve all equipment to be used” on the property. He stated that Ornelas ordered
4Front employees to attach a platform to the forklift, to drive the forklift out of the
warehouse, and to give the keys to the forklift to Reyes. Spear stated that Ornelas or
another 4Front employee should have monitored Reyes and Rosales and “stopped work
if they saw that anything was being performed hazardously.”
A surveillance video recording of the accident was played to the jury. Spear stated
that, because Reyes improperly attempted to move the forklift forward with the forks
elevated, he needed to be aware of both the clearance between the platform and the sign
and the clearance between the forklift and the sidewalk. Based on the video, Spear
opined that Reyes did not intentionally drive the forklift off the sidewalk. Instead, he
agreed with Rosales’s counsel that Reyes was “set up to fail” because it was not possible
for him to concentrate on both clearances at once.
On cross-examination, Spear conceded that he only spent five minutes inspecting
the warehouse location and did not get out of his car. He took no measurements of the
sidewalk where the accident occurred, nor did he inspect the forklift involved in the
accident or the platform attached to the forklift. He did not review regulations for
electricians promulgated by the Texas Department of Licensing and Regulations. He
acknowledged that Reyes and Rosales had used the same forklift to repair the same sign
for several hours two days before the accident, without incident. He agreed that,
according to the surveillance video, no 4Front employee was “micromanaging” Reyes and
Rosales in their operation of the forklift. Spear agreed with defense counsel that there is
7
no indication that Reyes ever had training to operate a boom lift truck. He further agreed
that, even if the operator of the forklift had been properly trained, the accident might still
have happened because a forklift was an improper machine to use for that task. He
stated that, if Rosales had asked Reyes to lower the platform before moving the forklift,
there is no reason to think that Reyes would not have complied with that request. Spear
testified that 4Front was more responsible than Reyes for the accident because 4Front
was more “knowledgeable” and had provided the equipment.
B. 4Front Employees
Rosales presented the testimony of three 4Front employees via video-recorded
deposition excerpts. Juan Villarreal, a supervisor at 4Front’s Pharr facility, testified that
he would not allow any of the employees that he supervises at 4Front to use a standing
lift outside the warehouse. Villarreal stated that he was not authorized to loan 4Front
equipment to persons who are not 4Front employees. He agreed that it is important, if
he saw personnel under his supervision engaging in unsafe practices, to ensure that they
stop those practices.
Rene Felix, a certified forklift operator at the Pharr facility, testified that Rosales
and Reyes should not have been using the forklift in the area where they were using it.
Felix agreed that he was told that standing lifts should be used only inside the warehouse;
that they should not be driven when the forks are in the raised position; and that the forks
should not be raised unless the lift is still. He said he told Reyes that he did not have the
authority to lend the forklift to him “because I use that equipment inside” and because “I
didn’t know the man.” However, Ornelas, the warehouse manager, instructed him to lend
the forklift to Reyes. Felix testified that Ornelas told him to put the platform on the lift and
8
to drive the lift to the front door of the office so that Reyes could use it. Later, when Felix
went outside, he saw a hole made by the forklift when it fell into the grass, and heard a
“guy . . . screaming.” He then told Villarreal, his supervisor.
Fernando Mujica, also a certified forklift operator at the Pharr facility, testified that
he was trained not to move the lift while the load was in the raised position “[b]ecause
depending on the . . . weight of the load, it can . . . move and . . . the forklift can turn over.”
He was also taught in training that the forklift can only be used indoors. Mujica testified
that Ornelas “ordered” the lift to be loaned to Reyes.
C. Ornelas
Ornelas testified that he has been employed by 4Front as a warehouse manager
since 2005. He agreed that one of his responsibilities is to manage safety at the facility,
but he has never received training on forklift safety. Villarreal was his second-in-
command and was authorized to supervise Felix and Mujica. According to Ornelas,
4Front had four forklifts at the Pharr facility at the time of the accident, and forklifts were
used there on a daily basis. Ornelas agreed that forklift operation is a “very large part of
what [we] do” at the Pharr facility. He stated: “As the warehouse manager, the
responsibility falls on me that—not necessarily through me, but that [the forklifts] are being
used safely, effectively and only the right person is using the equipment.” He stated:
“Every member at my facility in Pharr, regardless of his rank, has the right to either stop,
to either report [safety concerns] immediately to either my lead person or myself that there
is something not—something is being violated that concerns safety.”
Ornelas acknowledged that the forklift operating manual states in multiple places
that the machine should be used only by licensed, trained operators and that it should
9
only be used indoors. He conceded that he knows where the operating manual, written
in English, is normally kept—inside a panel on the machine itself—but that he never
required any operator to read the manual. He denied being aware that Reyes does not
speak English.
Rosales’s counsel asked, over 4Front’s counsel’s objection: “Do you know that
OSHA, specifically the OSHA regulation 1910.178, requires that operators of all standing
forklifts have to be trained and certified?” Ornelas replied: “I’m not sure on the exact title
and number that you just gave, but on the wording itself, yes.” Ornelas confirmed that he
knew that prior to the date of the accident. Ornelas conceded that he stated in his
deposition that he did not “know the dangers of being lifted by a forklift more than 6 feet”
because he is “not trained and certified.”
A document dated January 3, 2012 and entitled “4Front Engineered Solutions
Safety Policy” was entered into evidence. Ornelas conceded that he is responsible for
enforcing this safety policy, and he agreed that it is “something that 4Front should try to
do.” The policy stated, in part:
To be successful, our safety program must embody the proper attitudes
toward injury and illness prevention by both management and employees.
A cooperative effort among employees is necessary to ensure that a safe
and healthy work environment can be established and maintained. Our
objective is a safety and health program that will provide a workplace with
zero accidents. This safety program will include the following:
A. Conducting a program of safety and health inspections to
identify and eliminate unsafe working conditions or practices;
control health hazards; provide mechanical/physical
safeguards, and to comply with OSHA guidelines. . . .
Ornelas agreed that, “to enforce OSHA guidelines[,] you got to know them.”
Ornelas said that loaning equipment to non-employees was a “common” and “safe”
practice in the industry. However, he agreed that, on January 23, 2012—five days after
10
Rosales’s accident—4Front instituted a new written policy stating that “independent
contractors are not to use 4Front owned equipment under any circumstances. Only
[4Front] employees with the required training and/or certifications are permitted to use
company owned equipment.”2 The policy further stated that “[f]uture quotes for work to
be performed and work done on our premises will require that independent contractors
provide their own equipment.” Ornelas stated that, to his knowledge, the company did
not have an informal policy to that effect prior to the accident.
With respect to the illuminated sign outside of the warehouse, Ornelas testified that
he called Reyes because Reyes had done several jobs for him in the past and Ornelas
was “very happy with his work.” Ornelas asked Reyes to “take a look at the job and tell
me what was all required and his price.” Reyes “gave me the price and specifically told
me: This is the price I’m going to charge you and don’t rent any equipment. I’ll use your
equipment.”
Ornelas agreed that, on the day of the accident, he knew that Reyes and Rosales
would be working on the sign above the front door; that they would need lift equipment;
and that Reyes had never brought lift equipment with him when he had done jobs at the
facility in the past. He testified that he never spoke to Rosales before the accident.
Ornelas testified:
[Reyes] came to me, approached me and said, Hey I want to use your
equipment and I said, This is the only one available right now. He said,
Yep. I’ll use it, I’m trained. I got experience on this, let me use that one. At
that point I told my guy, Okay. Put the basket for him and leave it right there
in the corner and he took it from there.
2 Testimony about the January 23, 2012 policy was admitted over 4Front’s counsel’s objection.
See TEX. R. EVID. 407(a) (regarding evidence of subsequent remedial measures). 4Front does not complain
on appeal about the admission of this testimony.
11
Ornelas agreed that he authorized Reyes’s use of the forklift. Ornelas did not ask Reyes
to produce an OSHA certification card; according to Ornelas, that was because Reyes
had informed him that he was “trained” and “experienced” in using forklifts. Ornelas
conceded that, when asked at his deposition whether Rosales was responsible for his
injuries, he replied “No.”
Ornelas testified that Villarreal, Mujica, and Felix were not authorized to lend
equipment to Reyes. Ornelas denied that Reyes asked him to rent a scissors lift to access
the sign; although, on one occasion in the past, Reyes did use a scissors lift at the facility
to do a different job. Ornelas stated that there were surveillance cameras in the facility,
and that he could watch the live surveillance video from his office, but that the cameras
were there “just in case somebody breaks in, we got some evidence for the police.” He
agreed that, as the person in charge of safety at the Pharr facility, he is obligated to ensure
that drivers are trained and certified before they operate a forklift. He agreed that, had
the equipment not been used by an uncertified and untrained operator, the accident would
not have happened, but he elaborated: “You can be trained, you can be the highest
scorer on the test, but the reality is that if you’re not paying attention to what you’re doing,
regardless of how many licenses you have, the reality is obvious; what’s going to happen
is what happened there.”
D. 4Front Executives
The testimony of three 4Front executives was presented via video-recorded
deposition excerpts. Robert Wright testified that he is 4Front’s Director of Facilities and
Manufacturing Engineering, and that he works at 4Front’s Carrollton, Texas
headquarters. He stated that 4Front has a “zero defect” policy which provides that, if any
12
employee sees equipment being used improperly or unsafely, that employee has the right
to “stop it and then get a supervisor and get it resolved.” He stated that he never trained
Ornelas or any other 4Front employees in Pharr on OSHA regulations. When asked if he
was familiar with any of the safety policies that were enforced at the Pharr facility
concerning the use and operation of forklifts, Wright replied: “That’s not my
responsibility.” He testified that each 4Front facility has its own “on-site safety
representative” and that Ornelas and Robert Hawk were responsible for making sure that
safety policies were enforced at the Pharr facility. Wright said that it is important for a
company such as 4Front to train its workers on how to properly and safely use a forklift
to prevent injury or death. He agreed that, because Reyes was not properly trained, it
would have been “a violation of an important safety rule” if he were permitted to operate
the forklift without being directly supervised by someone who is properly trained. Wright
testified that, contrary to the warnings in the operator’s manual, a forklift like the one used
by Reyes and Rosales can safely be used outside, as long as it is being operated on a
flat, dry surface.
Robert Hawk testified that he is the general manager of 4Front’s Pharr facility. He
agreed that he is Ornelas’s supervisor and that he is generally responsible for ensuring
that safety rules are enforced and followed at the facility. Hawk testified that it is 4Front’s
policy to allow forklifts to be used only by people properly trained in their use and
operation. He stated: “If there’s something that’s obvious, that—that someone on our
property is doing something incorrectly, then I think that we should probably step up to
the plate and say, ‘Hey, you know, you should stop doing that.’ However, not everything
is obvious . . . .” Hawk stated that he has never had OSHA training with respect to forklifts,
13
and neither has Ornelas. He stated that 4Front had no “explicitly stated” policy, prior to
the Rosales’s accident, regarding lending equipment to non-employees. He added:
“There was an ad hoc verbal policy that’s, ‘Hey, as a general rule, it’s not a good idea to
do much lending of stuff to people,’ because if they damage the equipment and things
like that, then, you know, it costs us time and money . . . .”
Tony Koschel, 4Front’s vice president of human resources, testified that he
receives annual OSHA training and that it is an OSHA requirement that “all employees
receive [training].” Koschel stated that it is company policy that forklift operators must be
certified, and that Ornelas was responsible for supervising any employee that uses a
forklift at the Pharr facility. When asked whether Ornelas had the requisite knowledge to
be able to supervise employees that operate forklifts, Koschel replied: “It’s an assumption
that he sits in the training.” He did not know that Ornelas was not certified in forklift
operation. He denied that 4Front had any policy, prior to Rosales’s accident, prohibiting
the lending of equipment to non-employees.
Koschel agreed that, if 4Front sees an independent contractor doing something
obviously dangerous, “they do have a responsibility to stop that”; and that, having loaned
equipment to an independent contractor, 4Front “retain[ed] the authority” to revoke
permission to use the equipment. He agreed that “it would be a good idea” to ensure that
any non-employees to whom equipment may have been loaned are properly trained; but
he later testified that it was not 4Front’s responsibility to ensure that non-employees are
properly trained.
E. Reyes
Reyes testified, via video-recorded deposition excerpts and through an interpreter,
14
that he had never been trained, nor had he ever received any certification or license, to
operate a forklift. He stated that Ornelas gave him permission to use the forklift involved
in the accident. The following colloquy occurred:
Q. [Rosales’s counsel] Did you ask for permission to use the
equipment?
A. [Reyes] No. And I asked him if he had the other one
because it was easier for you to lift up two
persons instead of just one.
Q. Did you ask him if he would rent a scissors lift?
A. Well, he told me not to worry about the scissors
lift, that he had one. But I didn’t know if it was
being rented or not. But it seems to me that he
rented it in—for the cameras.
Q. The scissors lift?
A. But that’s what I believe.
Q. Did he ask you if you had any experience
operating a standup lift truck?
A. No. I told him, I can move it, but slowly.
Q. Did you have any difficulty operating the
standup lift truck inside of the warehouse?
A. Yes.
Q. What kind of trouble did you have?
A. But that is why I would move it slowly.
Q. What difficulty did you have?
A. The thing is that this one here has a wheel that
goes around like this, and it all depends on how
you maneuver that wheel that, you know, it goes
around. And the lever, it has the lever.
Q. So in terms of how you moved it, that was a
decision you made on your own. True?
15
....
A. No. Well, I was the one who was telling them
that I needed the other one because with the
other one I could lift up things, you know, up
there, and regarding this one here, an operator
has to be there, uh-huh, yes in case I would
have any doubts or something.
Q. When you say an operator needs to be there,
can you clarify what you mean?
A. Because this was the only one available that
they had out there. And what was difficult for
me was this here. And so I asked the man, I
asked the one who was operating it just, you
know, how to operate the joysticks.
Later, during its case-in-chief, 4Front presented additional excerpts from Reyes’s
deposition testimony. Reyes stated that he has been licensed as a journeyman
electrician for about three or four years. Prior to that, he had served as an apprentice
under various master electricians. Reyes explained that he is not able to read the English
language. Every year, he is required to take a four-hour course to renew his electrician’s
license, but those courses are given only in English. At the time of the deposition, his
license had lapsed because he “didn’t have the money to renew it.”
Reyes had done two previous jobs at 4Front’s Pharr warehouse, and each time he
had to produce his electrician’s license to the facility’s manager. Once, when he installed
electric wiring for a camera system, he used a scissors lift that 4Front had rented. Another
time, he used a forklift with a platform, like the one involved in the accident at issue, to
check some wires inside the warehouse; that was the first time he had operated a
standing forklift.
Reyes asked Rosales to help him on the 4Front illuminated sign job because he
knew him from a past job and “wanted to help him.” He stated that there was no one else
16
involved in the job, and he denied that anyone from 4Front told him how to operate the
forklift. He stated that, on the first day, he operated the forklift with Rosales on the
platform in order to “check out” the sign. They came back a second day because only
half of the sign was lit, and that was when the accident occurred. Reyes stated that, on
occasion, Rosales would ask him to lower the platform before he moved the forklift from
one point to another along the front of the building, and that “I would lower it.” When
asked whether he lowered the platform “every time” he moved the forklift, Reyes replied:
“A little.”
Reyes testified that he told Ornelas that a scissors lift would be better for the job
and that he asked Ornelas to rent a scissors lift for this job. When asked if there was any
reason he could not have rented a scissors lift himself and brought it to the site, he replied:
“Because it is very expensive.”
F. Rosales
Rosales testified that he has not been able to work as an electrician since the
accident, and he has not been able to find other work due to his injuries. He agreed that
4Front loaned the forklift involved in the accident to Reyes and himself. He agreed that,
on the first day that he and Reyes worked on the illuminated sign, a person whom he
believed to be “from 4Front” operated and moved the forklift, and that each time that
person moved the forklift, “he lowered the platform until [the] wheels touched the
sidewalk.” After about three or four hours of work, Rosales thought the job was done, but
only half of the sign lit up, so they had to come back the next day. On that day, Reyes
operated the forklift.
Prior to the accident, he did not see Reyes do anything that would make him doubt
17
whether Reyes knew how to control the lift or its platform. However, Reyes did not lower
the platform before moving the lift back and forth. This made Rosales feel unsafe, but he
did not tell Reyes to do anything differently.
Rosales stated that he did not speak to anyone from 4Front on the day of the
accident, nor did he see Reyes talk to anyone from 4Front that day. He did not hear
anyone from 4Front tell him or Reyes how to do the work. Nevertheless, he testified that
he holds 4Front—not Reyes—responsible for the accident. He acknowledged that he
had previously stated in his deposition that he faulted Reyes for failing to lower the
platform before moving the lift.
G. Jerry Purswell
4Front’s expert witness, Jerry Purswell, testified that he is a “safety engineer and
ergonomics expert.” He “was head of all the standards activity at OSHA” between 1978
and 1981, and he later supervised a group in Switzerland that wrote worldwide electrical
standards, though he has never been a licensed electrician. He agreed that his degree
in industrial engineering involves the study of warehouse operations, and he stated that
“I have been qualified in most of the states as an accident reconstructionist where I always
look at the regulations.” He stated he has analyzed “at least 20, 25” accidents involving
forklifts.
Purswell stated that he analyzed Rosales’s accident and reviewed the relevant
regulations. He agreed that the relevant OSHA regulation regarding electrical work states
that “[i]t is the obligation of the licensee to exercise reasonable judgment and skill in the
performance of all duties and work performed as a licensee.” The regulations also provide
that “[t]he licensee shall not offer to perform nor perform technical services for which the
18
licensee is not qualified by education or experience without securing the services of
another who is qualified.”
Purswell testified that the term “employee,” as used in the OSHA regulation
pertaining to forklift use, does not refer to independent contractors. He stated: “[I]t
wouldn’t make any sense to be trying to save somebody who is an independent contractor
that you don’t direct their work. You don’t have control over them.” He elaborated:
The employer is what the whole Occupational Safety and Health Act is
addressing, is the employer and there to provide a safe and healthful
workplace. There is nothing in there that’s addressed to an independent
contractor because they’re not an employee. The person who hires them
can’t control them or direct how their work is done, especially to see that it’s
safely done.
However, later in Purswell’s testimony, Rosales’s counsel read OSHA’s 1999 letter of
interpretation regarding the pertinent regulation that was previously discussed during
Spears’s testimony. Purswell agreed that, according to the letter, employers are
responsible for assuring that so-called “lumpers”—that is, non-employees who are invited
onto the employer’s property to assist in loading and unloading—“are properly trained
before they are permitted to operate powered industrial trucks” on the employer’s
premises. He agreed that the letter does not impose an obligation on an employer to train
independent contractors, “but you got to make sure [the independent contractors] know
how to operate the forklift because the safety of your employees, your [ware]house
employees [are] at risk because they can get hit.” He specified that the letter of
interpretation pertains only to independent contractors “in a warehouse setting.” He
agreed that, hypothetically, if he were in charge of safety at the Pharr warehouse, he
would let an employee operate the forklift on the sidewalk outside of the building, but he
would not let a non-employee borrow the forklift to do so.
19
In Purswell’s opinion, because Reyes was the lead electrician in charge of the job,
“he should not have taken into account anybody else’s opinion but his own as to whether
or not he could do the job safely and do it without having a hazard to the people who
happen to be working with him.” He stated that, if Reyes determined that he could not
safely complete the job with the equipment being used, he had an obligation to notify
Ornelas of that and “to go and get a safe means of elevating, of which there were
obviously many available.”
Purswell measured the sidewalk where the accident occurred and determined that
it was free of irregularities and level to within a fraction of a degree. He testified that there
was nothing about the surface of the sidewalk that would present any safety hazard
regarding the use of a standing forklift with a platform. He stated that, as long as the
surface was level, there was not a problem in using the forklift outdoors. He further
testified that a person who is familiar with using this forklift would have “no problem”
navigating the forklift around the sidewalk. He later agreed that “the use of this forklift by
an uncertified, untrained worker was safe given the amount of available clearance” on
either side of the lift on the sidewalk, and that the clearance on the sidewalk was “far in
excess of what he would normally encounter in terms of using [the forklift] as intended to
be used” within the warehouse. However, Purswell also agreed that, had Reyes been
properly trained, he would have known not to move the forklift with someone on the
platform and the platform in a raised position.
Purswell agreed that, if Ornelas had never given Reyes the keys to the forklift, the
accident would never have happened. He said that the use of a boom lift “could have”
eliminated the danger. But he opined that, because Ornelas had seen Reyes use the
20
forklift “successfully” on prior occasions, Ornelas “had no reason to believe that Mr. Reyes
wouldn’t be able to use this lift truck safely outside when he needed to use it.” He further
said it was reasonable for a warehouse manager like Ornelas to rely on representations
made to him by a licensed professional tradesman, and it would not be reasonable for a
warehouse manager to constantly monitor the work of an independent contractor.
According to Purswell, Reyes operated the forklift in an unsafe manner because
(1) he failed to lower Rosales to the ground before moving the forklift, and (2) according
to the surveillance video, Reyes was talking on his cell phone at the time the accident
occurred. Purswell opined that Reyes would not need to be trained or certified to know
that he should not have moved the forklift with Rosales on the platform and the platform
in a raised position. He also said that Rosales’s failure to “speak up and voice safety
concerns” was a “substantial factor” in causing the accident.
H. Verdict and Judgment
The jury found that the negligence of Reyes, Rosales, and 4Front each proximately
caused Rosales’s injuries. As to 4Front, the jury charge contained two questions asking
if its negligence proximately caused Rosales’s injuries—one based on a negligent
entrustment theory and one based on a premises liability theory. 3 The jury answered
both questions in the affirmative. The jury further found that 4Front “exercise[d] or
3 Question two defined “negligence” as “entrusting the forklift to an incompetent or reckless
operator, if any, if 4Front knew or should have known that the operator was incompetent or reckless.”
Question four stated that:
With respect to the condition of the premises, 4 Front was negligent if—
a. the condition posed an unreasonable risk of harm, and
b. [4Front] had actual knowledge of the danger, and
c. [4Front] failed to exercise ordinary care to protect Carlos Rosales from the
danger, by both failing to adequately warn Carlos Rosales of the condition
and failing to make that condition reasonably safe.
21
retain[ed] some control over the manner in which the work was performed, other than the
right to order the work to start or stop or to inspect progress or receive reports.” See TEX.
CIV. PRAC. & REM. CODE ANN. ch. 95 (West, Westlaw through 2013 3d C.S.) (limiting
circumstances under which commercial property owners may be held liable for acts of an
independent contractor). The jury attributed 75 percent of liability to 4Front, 15 percent
to Reyes, and 10 percent to Rosales. The jury also found 4Front grossly negligent and
assessed $5 million in exemplary damages. See id. § 41.003(a)(3) (West, Westlaw
through 2013 3d C.S.). Based on the jury’s findings, the trial court rendered judgment
that Rosales recover $7,278,317.15 in actual damages, $2,886,634.31 in exemplary
damages, see id. § 41.008 (West, Westlaw through 2013 3d C.S.) (limiting awards of
exemplary damages), and pre- and post-judgment interest from 4Front.4 This appeal
followed.
II. DISCUSSION
A. Evidentiary Sufficiency
We first address 4Front’s evidentiary sufficiency arguments. See Lone Star Gas
Co. v. R.R. Comm’n of Tex., 767 S.W.2d 709, 710 (Tex. 1989) (per curiam) (noting that
points calling for rendition of judgment should be considered before points calling for
remand).
1. Standard of Review
Evidence will be legally sufficient to support a jury’s finding unless the record
reveals: (1) the complete absence of evidence of a vital fact; (2) that the court is barred
4 The final judgment also assessed actual damages of $1,213,052.86, plus interest, against Reyes.
It ordered 4Front jointly and severally liable for this amount, and this was included in the amount assessed
as actual damages against 4Front as set forth above. Reyes is not a party to this appeal.
22
by the rules of law or evidence from giving weight to the only evidence offered to prove a
vital fact; (3) that the evidence offered to prove a vital fact is no more than a scintilla; or
(4) that the evidence establishes conclusively the opposite of a vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We view the evidence in the light most
favorable to the finding, crediting favorable evidence if a reasonable fact-finder could and
disregarding contrary evidence unless a reasonable factfinder could not. Id. at 807. The
ultimate test for legal sufficiency is whether the evidence would enable reasonable and
fair-minded people to make the finding under review. Id. at 827. In reviewing a legal
sufficiency issue, the court indulges every reasonable inference in support of that finding.
Id. at 822.
“Jurors are the sole judges of the credibility of the witnesses and the weight to give
their testimony. They may choose to believe one witness and disbelieve another.
Reviewing courts cannot impose their own opinions to the contrary.” Id. at 819. “Courts
reviewing all the evidence in a light favorable to the verdict thus assume that jurors
credited testimony favorable to the verdict and disbelieved testimony contrary to it.” Id.
In reviewing a factual sufficiency challenge to a jury finding on issues on which the
appellant did not have the burden of proof, as is the case here, we set aside the verdict
only if the evidence that supports the jury finding is so weak as to make the verdict clearly
wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam);
Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 469–70 (Tex. App.—Corpus Christi
2008, pet. denied). In a factual sufficiency review, we consider and weigh all the
evidence, but as in a legal sufficiency review, we defer to the jury as the sole judge of the
witnesses’ credibility. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); see
23
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The jury may
choose to believe one witness over another, and a reviewing court may not impose its
own opinion to the contrary. Golden Eagle Archery, 116 S.W.3d at 761.
2. Chapter 95
4Front argues by its second issue that the evidence was legally and factually
insufficient to support the jury’s answer, in response to jury charge questions three and
four, respectively, that 4Front “exercise[d] or retain[ed] some control over the manner in
which the work was performed” and had “actual knowledge of the danger” posed by a
condition on the premises. The charge questions were based on chapter 95 of the Texas
Civil Practice and Remedies Code, which provides:
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. The statute is applicable only to a claim:
(1) against a property owner, contractor, or subcontractor for personal
injury, death, or property damage to an owner, a contractor, or a
subcontractor or an employee of a contractor or subcontractor; and
(2) that arises from the condition or use of an improvement to real
property where the contractor or subcontractor constructs, repairs,
renovates, or modifies the improvement.
24
Id. § 95.002. “Claim” is defined in chapter 95 as “a claim for damages caused by
negligence.” Id. § 95.001(1). “Property owner” is defined as “a person or entity that owns
real property primarily used for commercial or business purposes.” Id. § 95.001(3).5
As a threshold matter, we consider whether chapter 95 applies to Rosales’s claims.
In response to 4Front’s second issue, Rosales argues that the statute does not apply
because his claim did not “arise[] from the condition or use of an improvement to real
property.” See id. § 95.002(2). He further contends that the statute is inapplicable
because “[t]his is a negligent activity case,” not a premises liability case.
In support of his argument, Rosales points to Keetch v. Kroger Co., in which the
Texas Supreme Court explained the difference between premises liability and negligent
activity cases. See 845 S.W.2d 262, 264 (Tex. 1992). As the supreme court stated,
“[r]ecovery on a negligent activity theory requires that the person have been injured by or
as a contemporaneous result of the activity itself rather than by a condition created by the
activity,” whereas a premises liability claim requires, among other things, a showing that
the property owner had actual or constructive knowledge of an unreasonable risk of harm
and failed to use reasonable care to reduce or eliminate the risk. Id.; see Del Lago
Partners, Inc. v. Smith, 307 S.W.3d 762, 778 (Tex. 2010) (“We have recognized that
5 Before the adoption of chapter 95, a Texas property owner was generally not liable for injuries
sustained by an independent contractor because the property owner had no duty to see that an independent
contractor performed his work in a safe manner. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1989)
(citing Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976)). In Redinger, the Texas Supreme Court
adopted section 414 of the Restatement (Second) of Torts, which provides an exception to this general rule
in situations where a premises owner or a general contractor exercises some control over the work of a
subcontractor or an independent contractor. Id. Chapter 95 codified Redinger’s requirement that, as a
prerequisite to liability, a property owner must exercise or retain some control over the manner in which the
work is performed. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (West, Westlaw through
2013 3d C.S.). Section 95.003 further limited a property owner’s liability by requiring a plaintiff to prove that
the owner had actual knowledge—not merely constructive knowledge—of a dangerous condition on the
premises. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003; Elmgren v. Ineos USA, LLC, 431 S.W.3d 657,
662 (Tex. App.—Houston [14th Dist.] 2014, pet. filed).
25
negligent activity encompasses a malfeasance theory based on affirmative,
contemporaneous conduct by the owner that caused the injury, while premises liability
encompasses a nonfeasance theory based on the owner's failure to take measures to
make the property safe.”). The Keetch Court found that the claim at issue there—a slip
and fall at a grocery store—was not a negligent activity case because, although “[a]t some
point, almost every artificial condition can be said to have been created by an activity,”
there was “no ongoing activity” at the time the plaintiff was injured. 845 S.W.2d at 264.
Rosales also cites several cases in which courts have held that an independent
contractor’s workplace injury claim was not properly characterized as a premises liability
claim. See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985) (plaintiff
subcontractor was injured when another subcontractor crushed plaintiff’s finger while
moving dirt, as ordered by the defendant general contractor, with his tractor; supreme
court held “[t]his is not a premises defect case . . . [r]ather, this case involves an injury
caused by an activity conducted on the premises”); Saenz v. David & David Constr. Co.,
52 S.W.3d 807, 811 (Tex. App.—San Antonio 2001, no pet.) (subcontractor was hit and
knocked off a roof by panels being lifted to the roof by a crane operated by another
subcontractor; court held that trial court did not err in refusing to submit premises liability
question); Arias v. MHI P’ship Ltd., 978 S.W.2d 660, 662 (Tex. App.—Corpus Christi
1998, no pet.) (plaintiff, an employee of an independent contractor hired by the defendant,
fell while doing framing work; we held “[t]his is not a premises defect case” because “it
involves an injury caused by an activity conducted on the premises”).
4Front urges that the case is instead controlled by Coastal Marine Service of
Texas, Inc. v. Lawrence, 988 S.W.2d 223 (Tex. 1999). In that case, an independent
26
contractor’s employee was killed when his head was crushed in the “pinch point” area of
a crane. Id. at 224. The crane was owned by the defendant, but the contractor “took
custody of the crane and began continued occupation of [the defendant]’s property” two
years before the accident. Id. The defendant was not involved in directing or supervising
the contractor’s work and had no employees on the job site when the accident occurred.
Id. at 225. The Texas Supreme Court rendered judgment against the plaintiffs because
there was no evidence that the defendant retained or exercised a “right to control” the
subcontractor’s work. Id.6
We agree with Rosales that, according to its strictly-construed plain meaning,
chapter 95 does not apply to this case. See Smith v. Sewell, 858 S.W.2d 350, 354 (Tex.
1993) (noting that, if a statute “deprives a person of a common-law right,” it “will be strictly
construed in the sense that it will not be extended beyond its plain meaning or applied to
cases not clearly within its purview”); see also Carpenter v. First Tex. Bancorp, No. 03-
12-00004-CV, 2014 WL 2568494, at *1 (Tex. App.—Austin June 5, 2014, no pet.) (mem.
op.) (construing chapter 95 strictly pursuant to Smith). Rosales was injured while in the
process of repairing an improvement to 4Front’s real property—the illuminated sign—but
it cannot be said that his claim “ar[o]se[] from the condition or use” of the sign. See TEX.
6 At oral argument, 4Front asserted that Rosales’s characterization of his claim as a “negligent
activity” claim is incorrect in part because a “negligent activity” claim differs from a “negligent entrustment”
claim, and the former theory was not submitted to the jury. In fact, a “negligent activity” claim, as defined
by the case law, appears to be any negligence claim made against a landowner that is not based on a
premises liability theory. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.
1998) (“Negligence in the [context of a negligent activity claim] means simply doing or failing to do what a
person of ordinary prudence in the same or similar circumstances would have not done or done.”); E.I.
DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 56 (Tex. App.—Houston [14th Dist.] 2014, pet. filed)
(“Under Texas law, a person injured on another's property has two potential causes of action against the
owner of the property: (1) a negligence claim for negligent activity on the premises, and (2) a premises
liability claim for an unreasonably dangerous condition on the premises.”); Elmgren, 431 S.W.3d at 669
(noting that negligent activity “is a general negligence cause of action”). Here, the “negligent activity”
alleged by Rosales is the negligent entrustment of the forklift to Reyes, which was submitted to the jury in
charge question two.
27
CIV. PRAC. & REM. CODE ANN. § 95.003. Rather, his claims arose from the use of a forklift,
which is not an improvement to real property.7 Moreover, we find that the instant case is
more akin to those cited by Rosales than to Coastal Marine. Redinger, Saenz, and Arias
each involved claims by independent contractors for injuries resulting from activities, not
from pre-existing defects on the premises which the property owner failed to reasonably
warn about or correct. See Redinger, 689 S.W.2d at 417; Saenz, 52 S.W.3d at 811;
Arias, 978 S.W.2d at 662. Similarly, here, Rosales’s claim is based on activities—his
injuries would not have occurred if Ornelas had not loaned the forklift to Reyes and had
Reyes not driven the forklift off the sidewalk. The injury here was the “contemporaneous
result of an activity” and was not the result of an unreasonable risk of harm due to unsafe
conditions on the premises which 4Front failed to reduce or eliminate. See Del Lago
Partners, 307 S.W.3d at 788 (“In short, unlike a negligent activity claim, ‘a premises defect
7 In Hernandez v. Brinker International, Inc., the Fourteenth Court of Appeals held that,
pursuant to the plain language of section 95.002(2), Chapter 95 does not apply to a
contractor’s employee’s claim against a property owner when the improvement the
condition or use of which gives rise to the injury claim is not the same improvement the
contractor was at the premise to address at the time of injury.
285 S.W.3d 152, 157 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Here, even if the forklift were
considered an improvement to real property, the forklift was not the particular improvement to real property
that Reyes and Rosales were hired to repair; so chapter 95 would not apply under the rationale set forth in
Hernandez.
Hernandez, however, has been disavowed by other Texas appeals courts. See Covarrubias v.
Diamond Shamrock Ref. Co., L.P. 359 S.W.3d 298, 301–02 (Tex. App.—San Antonio 2012, no pet.)
(“[C]hapter 95 applies even if the contractor's employee was injured by an improvement separate from the
improvement the employee was on the premises to repair.”); Gorman v. Ngo, 335 S.W.3d 797, 805 (Tex.
App.—Dallas 2011, no pet.) (stating that Hernandez “appears to be a departure from the existing case law
of other intermediate courts of appeals”); Painter v. Momentum Energy Corp., 271 S.W.3d 388, 398 (Tex.
App.—El Paso 2008, pet. denied) (“[C]hapter 95 applies, despite the fact that the object causing the injury
is not itself an improvement, where the injury arises from work being done on an improvement.”); Fisher v.
Lee & Chang P’ship, 16 S.W.3d 198, 201 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (stating that
chapter 95 “does not require that the defective condition be the object of the contractor’s work”).
We need not decide whether to follow Hernandez’s narrow reading of chapter 95 here because,
even if we did not, chapter 95 would still be inapplicable to Rosales’s claims as those claims did not arise
out of a “condition or use” of any improvement to real property. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 95.003(2).
28
claim is based on the property itself being unsafe.’”) (quoting State v. Shumake, 199
S.W.3d 279, 284 (Tex. 2006)); Keetch, 845 S.W.2d at 264. Coastal Marine is
distinguishable because, in that case, there was no evidence that the property owner’s
employees directed, supervised, or were even present at the job site at the time of the
injury.8 See 8 S.W.2d at 224–25.
As noted above, 4Front contends by its second issue that the evidence is legally
and factually insufficient to show that it had “actual control” or “actual knowledge of a
danger” as required for liability under chapter 95 and as set forth in jury charge questions
three and four. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. However, we have
already concluded that chapter 95 does not apply to Rosales’s claims. In any event, we
need not address this contention because of our finding below that the jury’s verdict was
supported on a negligent entrustment theory as set forth in charge question two. See
TEX. R. APP. P. 47.1. 4Front’s second issue is overruled.
3. Negligent Entrustment
4Front’s third issue challenges the legal and factual sufficiency of the evidence
supporting the jury’s findings as to negligent entrustment in its answer to jury charge
question two.
8 Coastal Marine is also distinguishable in that it did not apply chapter 95 because the claims
brought in that case arose prior to the effective date of the statute. See Act of May 18, 1995, 74th Leg.,
R.S., ch. 136, § 4, 1995 TEX. SESS. LAW SERV. 976 (stating that chapter 95 applies only to claims accruing
on or after September 1, 1996); see also Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223,
224–26 (Tex. 1999). Instead, it applied the predecessor common law doctrine—which did not include the
requirement found in chapter 95 that a claim “arise[] from the condition or use of an improvement to real
property.” See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 95.002(2) (West, Westlaw through 2013
3d C.S.) (emphasis added). Rather, that doctrine applied more generally to claims based on any
“dangerous condition [that] arises as a result of the independent contractor’s work activity.” Coastal Marine,
988 S.W.2d at 225. Accordingly, the supreme court’s decision to apply the common law doctrine in Coastal
Marine does not compel a finding that Rosales’s claims fall under the purview of chapter 95.
29
We first address 4Front’s contention, also made as part of its third issue, that
“[t]here is no cause of action in Texas for negligent entrustment of a forklift.” 4Front
argues that “[n]o Texas case establishes a cause of action for negligent entrustment of a
forklift” and “Texas appellate courts have only expanded the doctrine in the case of
firearms.” See Kennedy v. Baird, 682 S.W.2d 377, 378–79 (Tex. App.—El Paso 1984,
no writ).
As 4Front correctly notes, liability for negligent entrustment is most often alleged
in suits arising out of motor vehicle accidents. See Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754, 758 (Tex. 2007). A forklift is a motor vehicle. Rosales concedes that
Texas courts have not addressed whether liability may arise from the negligent
entrustment of an industrial vehicle such as a forklift; however, by the same token, 4Front
has directed us to no authority indicating that such liability should not or may not be
extended beyond the context of personal-use vehicles or firearms. Instead, we believe
the principles underlying negligent entrustment liability are squarely applicable to
Rosales’s claim. Negligent entrustment is founded on section 390 of the Restatement
(Second) of Torts, which states:
One who supplies directly or through a third person a chattel for the use of
another whom the supplier knows or has reason to know to be likely
because of his youth, inexperience, or otherwise, to use it in a manner
involving unreasonable risk of physical harm to himself and others whom
the supplier should expect to share in or be endangered by its use, is subject
to liability for physical harm resulting to them.
RESTATEMENT (2D) OF TORTS § 390 (1965); see Mayes, 236 S.W.3d at 758; see also
Donahue v. Polaris Indus., Inc., No. 02-11-00279-CV, 2012 WL 1034908, at *4 (Tex.
App.—Fort Worth Mar. 29, 2012, pet. denied) (mem. op.) (“[T]here is no articulable
distinction between section 390 and negligent entrustment.”). “Chattel” is defined as
30
“[m]ovable or transferable property; personal property; esp[ecially], a physical object
capable of manual delivery and not the subject matter of real property.” BLACK’S LAW
DICTIONARY 268 (9th ed. 2009). A forklift fits within this definition. Moreover, in
recognizing that liability may attach to the negligent entrustment of a firearm, the El Paso
Court of Appeals observed:
The establishment of the negligent entrustment of an automobile theory of
recovery was developed by the courts because of the realization that one
who entrusts an automobile to another owes a duty to the general public not
to be negligent in such entrustment. An automobile when in the hands of
one who is not competent to handle it becomes a threat to the general
public, and the owner of the automobile who is negligent in the entrustment
should be liable to the injured party provided that causation can be shown.
The owner’s liability does not arise out of a vicarious relationship, rather it
arises out of the negligence of the owner in entrusting the automobile to
another.
Kennedy, 682 S.W.2d at 378. The unanimous trial testimony established that a forklift,
like a firearm, is also a machine which “when in the hands of one who is not competent
to handle it becomes a threat to the general public.” Id. We are aware of no reason to
limit the applicability of negligent entrustment liability to the personal-use vehicle or
firearm context. For the foregoing reasons, we reject 4Front’s contention that the cause
of action is not cognizable.
Having found that negligent entrustment of a forklift is a viable cause of action, we
further conclude that the evidence adduced at trial was sufficient, both legally and
factually, to support the jury’s finding of liability on this theory. To establish liability under
a negligent entrustment theory, Rosales was required to establish that (1) 4Front
entrusted the forklift to Reyes; (2) Reyes was an unlicensed, incompetent, or reckless
forklift operator; (3) at the time of the entrustment, 4Front should have known that Reyes
was an unlicensed, incompetent, or reckless forklift operator; (4) Reyes was negligent on
31
the occasion in question; and (5) Reyes’s negligence proximately caused the accident.
See Mayes, 236 S.W.3d at 758; Schneider v. Esperanza Transmission Co., 744 S.W.2d
595, 596 (Tex. 1987). 4Front does not dispute that the first, second, fourth, and fifth
elements were established by sufficient evidence. As to the third element—whether
4Front should have known at the time of the entrustment that Reyes was unlicensed,
incompetent or reckless—we find that a reasonable juror could have reached an
affirmative conclusion based on the evidence adduced at trial. Ornelas, the 4Front
employee responsible for safety at the Pharr facility, testified that he knew that the forklift
operating manual states repeatedly that the forklift should only be used by a licensed,
trained operator, and that it should only be used indoors. He agreed that he was obligated
to ensure that drivers are trained and certified before they operate a forklift. He did not,
however, ask Reyes to produce an OSHA certification card or other proof that Reyes was
trained before he loaned the forklift to Reyes. Although Ornelas testified that Reyes had
previously used the forklift without incident, much of that use occurred indoors where the
danger was not as severe. Both expert witnesses testified that, under the 1999 OSHA
interpretation letter introduced into evidence, warehouse operators must ensure that
forklift operators are properly trained. Koschel, 4Front’s vice president for human
resources, testified that all 4Front employees must receive OSHA training, but it is
undisputed that Ornelas did not receive such training. We conclude that, from this
evidence, a reasonable juror could have concluded that Ornelas “should have known,” at
the time he loaned the forklift to Reyes, that Reyes was an unlicensed or incompetent
forklift operator. See Mayes, 236 S.W.3d at 758
32
4Front’s third issue is overruled.9
4. Causation
By its fourth issue, 4Front contends the evidence was legally and factually
insufficient to show that its negligence was a proximate cause of Rosales’s injuries, as
found by the jury in response to charge questions two and four.
Proximate cause has two components: (1) foreseeability and (2) cause-in-fact.
Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013); see Del Lago Partners,
307 S.W.3d at 774. Foreseeability requires that a person of ordinary intelligence should
have reasonably anticipated the danger created by a negligent act or omission. Doe v.
Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995); J.P. Morgan Chase
Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 533 (Tex. App.—Austin 2009,
no pet.). Foreseeability is not measured by hindsight, but instead by what the actor knew
or should have known at the time of the alleged negligence. Boren v. Texoma Med. Ctr.,
Inc., 258 S.W.3d 224, 230 (Tex. App.—Dallas 2008, no pet.). Foreseeability requires
only that the general danger, not the exact sequence of events that produced the harm,
be foreseeable. Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756,
757 (Tex. 1998). For a negligent act or omission to have been a cause-in-fact of the
harm, the act or omission must have been a substantial factor in bringing about the harm,
and absent the act or omission—i.e., but for the act or omission—the harm would not
have occurred. Rodriguez-Escobar, 392 S.W.3d at 113. If the defendant's negligence
merely furnished a condition that made the injuries possible, there can be no cause in
94Front also contends by its third issue that the negligent entrustment jury question should not
have been submitted because “Chapter 95 provides the exclusive remedy in this case.” We address this
argument infra section B.
33
fact. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). There may be more than
one proximate cause of an occurrence. Del Lago Partners, 307 S.W.3d at 774.
4Front contends that the accident that injured Rosales was “unforeseeable given
Reyes’s prior work history and statements that he could operate the lift slowly.” We
disagree. Trial testimony established that Ornelas instructed his staff to loan the forklift
to Reyes and that Ornelas knew Reyes was going to use the forklift on the sidewalk below
the illuminated sign. Spear testified that he would not have allowed anyone to use a
standing forklift for that particular job because there was insufficient clearance on the
sidewalk. Purswell testified that there was sufficient clearance, and that there was
nothing about the sidewalk that would make it inherently unsafe for forklift operation, but
the jury was entitled to reject that testimony and instead believe Spear. See City of Keller,
168 S.W.3d at 819. Moreover, Reyes testified that Ornelas did not ask him whether he
had experience operating that type of vehicle, and that he told Ornelas that a scissors lift
would be better for the job. Again, although Ornelas’s testimony conflicted with that of
Reyes, the jury was entitled to resolve that conflict. See id. From this evidence, the jury
could have reasonably concluded that a person of ordinary intelligence would have
anticipated that an injury would likely result from lending the forklift to Reyes to fix the
sign. See Boys Clubs, 907 S.W.2d at 478. Additionally, Purswell agreed that the accident
would have never happened if Ornelas had never given Reyes the keys to the forklift, and
Reyes testified that he could not have rented a scissors lift himself and brought it to the
worksite “[b]ecause it is very expensive.” From this evidence, the jury could have
reasonably concluded that 4Front’s negligence was a cause-in-fact of Rosales’s injuries.
See Rodriguez-Escobar, 392 S.W.3d at 113. We overrule 4Front’s fourth issue.
34
5. Gross Negligence
By its fifth issue, 4Front contends that the evidence was legally and factually
insufficient to support the jury’s finding that 4Front was grossly negligent.
In general, exemplary damages may be awarded if the plaintiff proves that the
harm suffered resulted from gross negligence. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 41.004(a)(3) (West, Westlaw through 2013 3d C.S.). “Gross negligence” means an act
or omission:
(A) which when viewed objectively from the standpoint of the actor at the
time of its occurrence involves an extreme degree of risk, considering
the probability and magnitude of the potential harm to others; and
(B) of which the actor has actual, subjective awareness of the risk
involved, but nevertheless proceeds with conscious indifference to
the rights, safety, or welfare of others.
Id. § 41.001(11) (West, Westlaw through 2013 3d C.S.). Under the objective element, an
extreme risk is “not a remote possibility of injury or even a high probability of minor harm,
but rather the likelihood of serious injury to the plaintiff.” Boerjan v. Rodriguez, 436
S.W.3d 307, 311 (Tex. 2014). Under the subjective element, “actual awareness means
the defendant knew about the peril, but its acts or omissions demonstrated that it did not
care.” Id. Circumstantial evidence may suffice to prove either element. Id.
Gross negligence must be proven by clear and convincing evidence. TEX. CIV.
PRAC. & REM. CODE ANN. § 41.003(a)(3). “‘Clear and convincing’ means the measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” Id. § 41.001(2); U-Haul Int’l,
Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Because of this heightened burden of
proof, we apply a heightened standard of review:
35
In a legal sufficiency review, a court should look at all the evidence in the
light most favorable to the finding to determine whether a reasonable trier
of fact could have formed a firm belief or conviction that its finding was true.
To give appropriate deference to the factfinder’s conclusions and the role
of a court conducting a legal sufficiency review, looking at the evidence in
the light most favorable to the judgment means that a reviewing court must
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. A corollary to this requirement is that a
court should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. This does not mean that a
court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew
the analysis of whether there is clear and convincing evidence.
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008)
(quoting Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005));
see Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004) (noting that “whenever
the standard of proof at trial is elevated, the standard of appellate review must likewise
be elevated”). We review all the evidence to determine whether the jury could have
formed a firm belief or conviction that 4Front’s conduct deviated so far from the standard
of care as to create an extreme risk and that 4Front was subjectively aware of, but
consciously indifferent to, this risk. See id.
We first address the subjective element of gross negligence because it is
dispositive. Rosales contends that the subjective element was supported by evidence
showing that Ornelas “made [Reyes and Rosales] use the wrong equipment actually
knowing where they were going to use it, and what they were going to try to do with it”;
that 4Front “knew its own employees had to be properly trained and certified to operate
the forklift”; and that Ornelas “controlled the choice of equipment even to the extent that
if Reyes had shown up with a scissor[s] lift, he could not have used it without permission
from Ornelas.” Rosales cites Lee Lewis Construction, Inc. v. Harrison, in which the Texas
Supreme Court found legally sufficient evidence of gross negligence in a case involving
36
the death of a subcontractor’s employee at a construction site. 70 S.W.3d 778, 786 (Tex.
2001). Specifically with regard to the subjective element of gross negligence, the Lee
Lewis Court cited testimony by the defendant general contractor’s job superintendent that
he saw subcontractor employees working from windowsills despite using only “safety
belts and lanyards, without safe work platforms or independent lifelines,” which he knew
was ineffective for the prevention of falls. Id. He admitted that, even after he observed
the subcontractor employees using the ineffective fall-protection system, “he did nothing
to remedy it.” Id. Additionally, the subcontractor’s foreman testified that the job
superintendent approved of the inadequate safety system, and evidence showed that the
general contractor’s employees “did use independent lifelines as part of their fall-
protection equipment” even though the subcontractor’s employees did not. Id. The
supreme court held that all of this evidence was sufficient to support the jury’s finding that
the general contractor “knew of, but was consciously indifferent to, the risk of fatal falls
for its subcontractors’ employees.” Id.
Here, the evidence appears to be undisputed that Ornelas was never trained in
forklift use. There was evidence that there were surveillance cameras in Ornelas’s office
which would have shown Rosales and Reyes as they were attempting to fix the
illuminated sign, and there was evidence that Ornelas may have been able to view
Rosales and Reyes working through a window in his office, but there was no evidence
that Ornelas actually knew that Rosales was operating the forklift unsafely, such as by
moving the forklift with the platform raised. Evidence showed that, in fact, Reyes had
used a similar forklift inside the Pharr facility on a previous occasion without incident.
Ornelas testified that he was aware of the OSHA regulations regarding forklift use prior
37
to the accident, but there is a dispute regarding whether those regulations apply to non-
employees. Even if they did apply to non-employees, there is no evidence that Ornelas
actually knew that Reyes was uncertified and untrained; Ornelas testified that Reyes told
him he was “trained” and “experienced” in using forklifts.
Under these circumstances, we find that the evidence—though legally sufficient to
establish 4Front’s negligence—could not have allowed a reasonable juror to form a firm
belief or conviction that 4Front “knew about the peril, but its acts or omissions
demonstrated that it did not care.” See Boerjan, 436 S.W.3d at 311; Hogue, 271 S.W.3d
at 248. Unlike in Lee Lewis, there was no testimony that any 4Front representative had
actual knowledge that Reyes was incompetent to operate the forklift or that he was
operating the forklift improperly. See 70 S.W.3d at 786. The evidence supported a finding
that Ornelas should have known that Reyes was an incompetent forklift operator, but the
evidence did not support a finding that Ornelas actually knew that. Instead, the evidence
established that Ornelas simply lacked the knowledge and training necessary to properly
ensure that forklifts were used safely at the Pharr facility. Accordingly, we conclude that
the evidence was legally insufficient to establish the subjective element of gross
negligence.10
The award of exemplary damages was error. See Safeshred, Inc. v. Martinez, 365
S.W.3d 655, 666 (Tex. 2012) (holding that “the exemplary damages award must be
10 Because we find that the evidence was legally insufficient to establish the subjective element of
gross negligence, we need not consider whether the evidence was factually sufficient to support that
element, nor need we consider whether the evidence was sufficient to establish the objective element. See
TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11) (West, Westlaw through 2013 3d C.S.) (requiring that both
subjective and objective elements be satisfied in order to prove gross negligence); TEX. R. APP. P. 47.1.
38
reversed” because there was insufficient evidence of malice). 4Front’s fifth issue is
sustained.
6. Comparative Responsibility
By its seventh issue, 4Front argues that the evidence was factually insufficient to
support the jury’s finding as to comparative responsibility. As noted, the jury found 4Front
75 percent liable, Reyes 15 percent liable, and Rosales 10 percent liable. We have
already found that the evidence was sufficient to support a finding that 4Front was liable
on a negligent entrustment theory. And, under such a theory, the entrustor is liable for
the acts of the entrustee, without regard to the degree of negligence of the entrustor itself.
See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 698 (Tex. 2007) (“Once
negligent hiring or entrustment is established, the owner/employer is liable for the acts of
the driver, and the degree of negligence of the owner/employer is of no consequence.”)
(quoting Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 657 (Tex. App.—Dallas
2002, pet. denied)).11 Here, there is no dispute that the entrustee—Reyes—was
negligent in his operation of the forklift at the time of the accident, and that his negligence
contributed significantly to Rosales’s injuries. Moreover, the evidence established that
4Front was in a superior position to be aware of proper forklift safety procedures than
either Reyes or Rosales. As Rosales notes, 4Front is “the only party that was actually in
the forklift safety business.” Ornelas testified that forklift operation constitutes a “very
11 In F.F.P. Operating Partners, L.P. v. Duenez, the supreme court held that, in negligent
entrustment cases, when “the entrustor’s share of responsibility is merely a ‘subpart’ of the entrustee’s
share, then the entrustor should not be submitted separately [in the apportionment question].” 237 S.W.3d
680, 698 (Tex. 2007). “Only the entrustee should be submitted, and his or her negligence would then be
imputed to the entrustor as a matter of law.” Id. Here, both the entrustor (4Front) and the entrustee (Reyes)
were submitted in the comparative responsibility question. However, 4Front does not argue on appeal that
the comparative responsibility question was defective for this reason. Therefore, we do not address the
issue.
39
large part of what [we] do” at the Pharr facility and that forklifts were used there on a daily
basis. Finally, although his testimony was disputed, Reyes stated that he told Ornelas
that a scissors lift would be better for the job and that he asked Ornelas to rent a scissors
lift for this job, but Ornelas declined. In light of this evidence, we cannot say that the jury’s
comparative responsibility findings were supported only by evidence “so weak as to make
the verdict clearly wrong and manifestly unjust.” See Cain, 709 S.W.2d at 176. 4Front’s
seventh issue is overruled.
B. Jury Charge Error
4Front’s raises two issues regarding jury charge error. We review alleged jury
charge error for abuse of discretion. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d
647, 649 (Tex. 1990). A court abuses its discretion in connection with the charge and
commits reversible error only if the error probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting the case on
appeal. TEX. R. APP. P. 44.1(a)(1); Romero v. KPH Consol., Inc., 166 S.W.3d 212, 225
(Tex. 2005).
We first address issue six, which contends that the broad-form jury charge
question regarding comparative responsibility should not have been submitted because
the two liability questions—based on negligent entrustment and premises liability
theories, respectively—were improperly submitted. Instead, 4Front contends that two
separate comparative responsibility questions, one based on each theory of liability,
should have been submitted.12
12 4Front did not submit proposed comparative responsibility questions in writing. However,
4Front’s counsel objected to the single comparative responsibility question on the basis that it “improperly
combines two invalid theories.” Counsel also stated that “[t]he only solution would be to ask separate
responsibility questions,” but the trial court rejected that solution. Because the comparative responsibility
40
4Front relies on Romero, in which an apportionment of responsibility question was
found to have been erroneously submitted because it encompassed two theories of
negligence, one of which was based on legally insufficient evidence. 166 S.W.3d at 224–
27 (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000) (holding that
“submitting invalid theories of liability in a single broad-form jury question is harmful error
when it cannot be determined whether the jury based its verdict on one or more of the
invalid theories”)).13 The Romero Court stated that jury charge error in this regard is
reversible unless the appellate court is “reasonably certain that the jury was not
significantly influenced by issues erroneously submitted to it.” Id. at 227–28.
Here, the comparative responsibility question, question five of the jury charge,
stated: “For each person you found in your answer to Question Nos. 1, 2, or 4 to have
caused or contributed to cause the occurrence in question, find the percentage of
responsibility attributable to each.” Question one of the jury charge asked whether Reyes
and Rosales were negligent; question two asked if 4Front was liable under a negligent
entrustment theory; and question four asked if 4Front was liable under a premises liability
theory.
question was “relied upon” by Rosales, we conclude that 4Front’s verbal objection was sufficient to preserve
the issue for appeal. See TEX. R. CIV. P. 278 (“Failure to submit a question shall not be deemed a ground
for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in
writing and tendered by the party complaining of the judgment; provided, however, that objection to such
failure shall suffice in such respect if the question is one relied upon by the opposing party.”) (emphasis
added).
13The charge question at issue in Romero was: “What percentage of the conduct that caused the
occurrence or injury do you find to be attributable to each of those found by you, in your answer to Question
No. 1 and/or 2 to have caused the occurrence of injury?” Romero v. KPH Consol., Inc., 166 S.W.3d 212,
225 (Tex. 2005).
41
Assuming, but not deciding, that the evidence was insufficient to support the jury’s
answer to the premises liability question,14 we are nevertheless “reasonably certain” that
the jury was not “significantly influenced” by the submission of that question in
determining comparative responsibility. See id. In Romero, the liability theory which was
found to be supported by insufficient evidence was based on malicious credentialing; the
other theory, which was supported by evidence, was based on general negligence. See
id. at 219. The general negligence theory, however, was based on different facts than
the malicious credentialing theory—the former was based on the alleged failure of the
defendant hospital to timely provide a blood transfusion during surgery, whereas the latter
was based on the hospital’s decision to hire the surgeon that performed the surgery, who
previously had numerous malpractice suits filed against him. Id. at 216. The supreme
court found that there was no evidence of malice, so the malicious credentialing question
was erroneously submitted. Id. at 220. It further found that the submission of a broad-
form comparative responsibility question was reversible error because “the jury could not
conceivably have ignored [the malicious credentialing] finding in apportioning
responsibility.” Id. Here, on the other hand, Rosales’s premises liability and negligent
entrustment theories were based on the same action allegedly taken by 4Front—i.e.,
lending the forklift to Reyes to use to repair the illuminated sign. The parties dispute
whether those facts support a premises liability claim or a negligent activity claim as a
matter of law, but the two theories are not based on different alleged acts of negligence
as in Romero. See id. Because the two theories were based on the same underlying
factual allegations, we do not believe that the submission of a separate comparative
14 We have already concluded that the jury’s answer to the negligent entrustment question was
supported by sufficient evidence. See supra § II.A.3.
42
responsibility question based only on negligent entrustment would have resulted in a
significantly lower apportionment of responsibility to 4Front, even if the premises liability
question was improperly submitted.15 See id. at 227 (noting that “[w]e do not hold that
the error of including a factually unsupported claim in a broad-form jury question is always
reversible” and that, in some instances, “a jury may simply ignore a factor in the charge
that lacks evidentiary support”). We overrule 4Front’s sixth issue.
4Front further contends by part of its third issue that jury charge question two,
regarding negligent entrustment, should not have been submitted “because, as a matter
of law, Chapter 95 provides the exclusive remedy in this case.” We disagree; we have
already concluded that chapter 95 is not applicable to Rosales’s claims because those
claims do not arise from the “condition or use of an improvement to real property.” See
TEX. CIV. PRAC. & REM. CODE ANN. § 95.002(2). Accordingly, we conclude it that it was
not an abuse of discretion to submit question two on this basis. We overrule this part of
issue three.
C. Admission of OSHA Regulations
By its eighth issue, 4Front contends that the trial court erred in admitting evidence
of the OSHA regulation pertinent to forklift use and the April 6, 1999 letter issued by OSHA
interpreting that regulation. It argues that the evidence was inadmissible because “it does
not establish a standard of care and does not apply outside the employee/employer
context.” Rosales argues that the evidence was admissible (1) “to show what Ornelas
15 In fact, had a separate apportionment question been submitted solely on the negligent
entrustment theory, it is possible that the jury would have attributed an even higher percentage of
responsibility to 4Front. That is because, as noted, if negligent entrustment is found, the entrustor is held
liable for the acts of the entrustee without regard to the degree of negligence of the entrustor. See Duenez,
237 S.W.3d at 698 (quoting Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 657 (Tex. App.—Dallas
2002, pet. denied)).
43
would have known about basic forklift safety had 4Front not entrusted safety to someone
who was willfully blind,” and (2) “to show that giving powered industrial trucks to untrained
workers poses a significant safety risk.”
We review the admission of evidence for abuse of discretion. Brookshire Bros.,
Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014). A trial court abuses its discretion when it
acts without regard for guiding rules or principles. U-Haul Int’l, 380 S.W.3d at 132.
Evidence is “relevant”—and therefore generally admissible—if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” TEX. R. EVID. 401,
402.16
4Front is correct that OSHA regulations do not, by themselves, establish
negligence per se or create a separate cause of action. See Wal-Mart Stores, Inc. v.
Seale, 904 S.W.2d 718, 720 (Tex. App.—San Antonio 1995, no writ) (citing Melerine v.
Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981); Jeter v. St. Regis Paper Co., 507
F.2d 973 (5th Cir. 1975); Kraus v. Alamo Nat’l Bank, 586 S.W.2d 202, 208 (Tex. Civ.
App.—Waco 1979), aff’d on other grounds, 616 S.W.2d 908 (Tex. 1981)). 4Front is also
correct that “Employees are the exclusive class of persons protected by OSHA
regulations.” Id. “Nevertheless[,] OSHA regulations are admissible into evidence as
being relevant to the standards of conduct which should have been employed by a
defendant.” Id.; see Baker Marine Corp. v. Herrera, 704 S.W.2d 58, 61 (Tex. App.—
16
Through its motion in limine and objections at trial, 4Front objected to the OSHA evidence in part
on the basis that it was unfairly prejudicial. See TEX. R. EVID. 403 (“Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.”). However, 4Front does not make this argument explicitly on appeal. Therefore, we
do not address whether the evidence was inadmissible under Rule 403.
44
Corpus Christi 1985, writ ref’d n.r.e.); see also Perez v. Smart Corp., Inc., No. 04-12-
00712-CV, 2013 WL 6203358, at *3 (Tex. App.—San Antonio Nov. 27, 2013, pet. denied)
(mem. op.). As explained by the San Antonio Court of Appeals in Seale:
The relevance of an OSHA standard is that it [is] the cumulative wisdom of
the industry on what is safe and what is unsafe. While OSHA was written
to protect employees, an unsafe practice for an employee applies equally
well to a customer who legitimately finds himself in the same geographic
space as the employee. Safety principles don’t change depending on
whether the victim is an employee, a customer, or a passerby. Therefore it
has relevance to the standard of care.
904 S.W.2d at 720; see TEX. R. EVID. 401.
In support of its position, 4Front cites Hill v. Consolidated Concepts, Inc., in which
the Fourteenth Court of Appeals affirmed the trial court’s exclusion of OSHA regulations
on the grounds that “our common law is not expanded by OSHA regulations” and, in that
case, “the regulations were not relevant to the issue of duty.” No. 14-05-00345-CV, 2006
WL 2506403, at *4 (Tex. App.—Houston [14th Dist.] Aug. 31, 2006, pet. denied) (mem.
op.).17 The court noted that, had the OSHA regulations been admitted, they “likely would
have only confused and misled the jury into believing that [the defendant] had a federally
mandated duty to [the plaintiff] that it should enforce in this suit.” Id. at *4 n.5. 4Front
also cites Hall v. Dieffenwierth, in which the Fort Worth Court of Appeals concluded that
the exclusion of evidence of OSHA regulations was not error because the defendant was
17 Rosales contends that Hill is distinguishable because “Hill concerned the admissibility of OSHA
citations—not regulations” and he contends that “OSHA regulations are admissible even if OSHA findings
and citations are not.” However, the Hill court evaluated the admissibility of both OSHA regulations and
OSHA administrative records—including records of citations and administrative proceedings against the
defendant—and it found that the trial court did not err in excluding either from evidence. Hill v. Consol.
Concepts, Inc., No. 14-05-00345-CV, 2006 WL 2506403, at *4–6 (Tex. App.—Houston [14th Dist.] Aug. 31,
2006, pet. denied) (mem. op.).
45
not required to comply with those regulations. No. 02-07-00058-CV, 2008 WL 2404462,
at *4 (Tex. App.—Fort Worth June 12, 2008, pet. denied) (mem. op.).
Under the circumstances presented here, we believe the evidence was relevant
and therefore generally admissible under rule 401. See TEX. R. EVID. 401. The central
issue for the jury in this case was whether 4Front’s negligence caused Rosales’s injuries.
The jury was therefore called upon to determine whether 4Front owed a duty of care to
Rosales, because “[i]f there is no duty, there cannot be negligence liability.” Thapar v.
Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). “[F]actors which should be considered in
determining whether the law should impose a duty are the risk, foreseeability, and
likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude
of the burden of guarding against the injury and consequences of placing that burden on
the employer.” Nabors Drilling, Inc. v. Escoto, 288 S.W.3d 401, 405 (Tex. 2009); see Del
Lago Partners, 307 S.W.3d at 767. Foreseeability of the risk has been called the
“foremost and dominant consideration” in the duty analysis. El Chico Corp. v. Poole, 732
S.W.2d 306, 311 (Tex. 1987). As noted, the test for foreseeability is what a party should,
under the circumstances, reasonably anticipate as a consequence of its conduct. Boys
Clubs, 907 S.W.2d at 478; J.P. Morgan Chase Bank, 302 S.W.3d at 533. “Though the
existence of duty is a question of law when all of the essential facts are undisputed, when
the evidence does not conclusively establish the pertinent facts or the reasonable
inferences to be drawn therefrom, the question becomes one of fact for the jury.” Bennett
v. Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.);
see Mitchell v. Mo.-Kan.-Tex. R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990) (“While
foreseeability as an element of duty may frequently be determined as a matter of law, in
46
some instances it involves the resolution of disputed facts or inferences which are
inappropriate for legal resolution.”), overruled on other grounds by Union Pac. R.R. Co.
v. Williams, 85 S.W.3d 162 (Tex. 2002).
Evidence of OSHA regulations was relevant here because, as “the cumulative
wisdom of the industry on what is safe and what is unsafe,” Seale, 904 S.W.2d at 720, it
was probative as to whether 4Front should have reasonably anticipated that an injury
would be the consequence of lending a forklift to an untrained independent contractor
who had been hired to repair an elevated sign. See J.P. Morgan Chase Bank, 302 S.W.3d
at 533; see also TEX. R. EVID. 401. For the same reason, the evidence was also relevant
as to the issue of proximate causation. See Rodriguez-Escobar, 392 S.W.3d at 113
(noting that foreseeability is one component of proximate causation). Spear testified that
the regulation would be relevant to determining whether 4Front should have known that
Reyes, an independent contractor, was incompetent to operate the forklift. Spear
additionally stated that, under the 1999 OSHA interpretation letter, warehouse operators
are not required to train a contractor’s employees but must nevertheless ensure that they
are properly trained. Purswell, 4Front’s expert, agreed that, even though the letter does
not impose an obligation on an employer to train independent contractors, employers
must nevertheless ensure that independent contractors “know how to operate the forklift
because the safety of your employees, your [ware]house employees [are] at risk because
they can get hit.” Purswell also testified that, pursuant to the 1999 letter, employers are
responsible for ensuring that non-employees who are invited onto the employer’s property
to assist in loading and unloading are properly trained before they are permitted to operate
powered industrial trucks. Accordingly, even if the regulation regarding training of forklift
47
operators technically possesses the force of law only in the employer-employee context,
see 29 CFR § 1910.178(l)(1)(ii) (2014) (“Prior to permitting an employee to operate a
powered industrial truck (except for training purposes), the employer shall ensure that
each operator has successfully completed the training required by this paragraph . . . .”),
the evidence was nevertheless admissible as relevant to the issues before the jury.
Hill and Hall are distinguishable because the courts in those memorandum
opinions found no abuse of discretion in the exclusion of evidence. That a trial court was
found not to have abused its discretion by excluding evidence of OSHA regulations in
other cases does not mean that the admission of such evidence is necessarily an abuse
of discretion here. See Seale, 904 S.W.2d at 720–21 (“It is elementary . . . that to find a
case where evidence was partially excluded under the abuse of discretion standard
cannot be used to prove that in another case with different facts that a court was in
violation of abuse of discretion for admitting evidence.”). Moreover, to the extent Hill and
Hall concluded that OSHA regulations were per se inadmissible solely because they
cannot affect common law duties, the case law from this Court appears to conflict.
Compare Hill, 2006 WL 2506403, at *4 (concluding that “the regulations were not relevant
to the issue of duty” because “our common law is not expanded by OSHA regulations”)
and Hall, 2008 WL 2404462, at *4 (concluding that the exclusion of OSHA regulations
was not error because the defendant “did not violate any OSHA regulation”) with Baker
Marine Corp., 704 S.W.2d at 61 (“OSHA Regulations are admissible into evidence as
being relevant to the standard of conduct which should have been employed by
defendant . . . . Despite appellants’ prolonged protestations and authorities to the contrary
in their brief, we find this to be the applicable rule of law in Texas.”).
48
We overrule 4Front’s eighth issue.18
D. Incurable Jury Argument
We finally address 4Front’s first issue, in which it argues that it is entitled to a new
trial because Rosales’s counsel made “deliberate, racially charged attacks and
shameless appeals to ethnic solidarity and local bias” in his closing argument at trial. The
argument about which 4Front complains is as follows:
[I]n closing, I’m going to read something from you—from Abraham Lincoln
here in just a second, but first I want to tell you something about my
upbringing.
My—I’m the first person in my family to go to college. And I know about
men that work out of trucks because I was raised by one. And I want to tell
you that men that scrape and work day in and day out to help their families
are entitled to the same exact safety that 4Front’s employees in Dallas are.
And I believe that in my bones. You are the conscience of this community.
You will tell 4Front whether you believe that. 4Front remains willfully blind,
willfully blind. That means they’re choosing not to see. They are choosing
not to see. . . .
I want to read to you this and this is really instructive for what you have to
do. Abraham Lincoln, before the Civil War visited New Orleans. He was in
a crowded downtown street when he saw a slave being beaten savagely.
His aid[e] whispered to him, Isn’t that the worst thing you’ve ever seen? The
president answered, No. The beating isn’t the worst thing. The worst thing
I’ve ever seen is that the man is being beaten and no one is in this whole
crowd is doing anything about it.
Everyone in the crowd was willfully blind to the injustice that was occurring
and that’s exactly what’s happening at 4Front. Not one Dallas, Wisconsin
or Canadian representative from 4Front stepped into this courtroom. Not
one of them sat here on this stand or sat at the table. That’s because they
don’t think that the injuries that Carlos Rosales suffered are significant
enough to warrant their time to be here. When his shoulder was shattered
184Front further argues by its eighth issue that the trial court erred by failing to give the following
proposed jury instruction: “As the premises owner, 4Front was not subject to any OSHA regulations as
they pertain to the premises or to activities of independent contractors or the employees of such
contractors.” 4Front does not, however, support this argument with references to authority regarding jury
charge error. Accordingly, the argument is waived. See TEX. R. APP. P. 38.1(i).
49
in the multiple pieces and he was crying out, they say, It’s your fault. You
knew what you were getting into.
When his hip broke and the bones derided [sic] and his muscles pulled his
leg and shortened his leg, they say, You know what? Every man for himself.
When his brain hit the concrete, bleeding occurs, ripping and tearing in the
brain, they say, Sorry. You, you should have told Mr. Francisco Reyes what
to do. The hypocrisy of their position should frustrate you, ladies and
gentlemen. And the only way that you can tell those people in that
boardroom, wherever they are, that Carlos Rosales matters, that men that
work out of their trucks in Hidalgo County matter, is with your verdict.
I believe in you. We had a tough job in this case. 4Front, they spent money
on what was important to them. They hired an expert for 325 dollars an
hour and they hired three law firms, three large law firms from Wisconsin,
Houston and McAllen to come in here and tell you they have zero
responsibility. We were taking on Goliath. We’re a four lawyer law firm.
When David took on Goliath, he reached down and he picked up five
smooth stones. . . . Five smooth stones. You are the smooth stones, ladies
and gentlemen. You—I’m leaving my client’s fight here with you. If you
believe in this case and this cause, go into that jury room and fight for Carlos
Rosales.
1. Standard of Review and Applicable Law
Ordinarily, a complaint regarding improper jury argument must be preserved by a
timely objection that is overruled. Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678,
680 (Tex. 2008); see TEX. R. APP. P. 33.1. But if a jury argument is incurable, then a
contemporaneous objection is not required; instead, such a complaint is preserved for
appeal if it is raised in a motion for new trial. See TEX. R. CIV. P. 324(b)(5); Phillips v.
Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). Here, 4Front did not object to the argument
when it was made, but complained about the argument in a motion for new trial which
was overruled. Therefore, the issue is preserved for our review. See Phillips, 288 S.W.3d
at 883.
To obtain a reversal of a judgment on the basis of incurable jury argument, a party
must establish (1) an error, (2) that was not invited or provoked, (3) that was preserved
50
at trial by a proper objection, motion to instruct, or motion for mistrial, and (4) that was not
curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the
trial court. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979).
“Incurable jury argument is rare” because “[t]ypically, retraction of the argument or
instruction from the court can cure any probable harm.” Phillips, 288 S.W.3d at 883 (citing
Peñalver, 256 S.W.3d at 680). The party claiming incurable harm must persuade the
court that, based on the record as a whole, the offensive argument was “so extreme that
a ‘juror of ordinary intelligence could have been persuaded by that argument to agree to
a verdict contrary to that to which he would have agreed but for such argument.’” Id.
(quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (Tex. 1954)). Incurable argument is “that
which strikes at the very core of the judicial process.” Id. (citing Peñalver, 256 S.W.3d at
681–82). Jury argument that strikes at the appearance of and the actual impartiality,
equality, and fairness of justice rendered by courts is incurably harmful not only because
of its harm to the litigants involved, but also because of its capacity to damage the judicial
system. Peñalver, 256 S.W.3d at 681
Texas courts have recognized that appeals to racial or ethnic prejudice may render
a jury argument incurably improper. In Peñalver, a wrongful-death case, the Texas
Supreme Court held that jury argument comparing the defendant nursing home’s conduct
to medical experimentation on the elderly in Nazi Germany was incurable. 256 S.W.3d
at 679. In Showbiz Multimedia, LLC v. Mountain States Mortgage Centers, Inc., the
Houston First Court of Appeals determined that counsel’s reference to the plaintiff, a
naturalized United States citizen born in India, as committing “judicial terrorism” was
incurably improper. 303 S.W.3d 769, 770–72 (Tex. App.—Houston [1st Dist.] 2009, pet.
51
denied) (noting that counsel also made a statement—which was “wholly unsupported by
the record”—that a business associate of the plaintiff was “scared to death of this man”
due to unspecified “cultural issues”). In Texas Employers’ Insurance Ass’n v. Guerrero,
the San Antonio Court of Appeals ordered a new trial where plaintiff’s counsel made the
following remark in closing argument:
I am tickled to death to be here and I will represent him and any man like
him in Zavala, Maverick, Dimmit, Cameron, any county in the State of Texas
any time.
Octavio Paz, a well-known author said one time, and I will quote him and I
already translated it. He said, “Things that unite us far exceed those things
that divide us.”
You apply that to evidence. The things, the preponderance of the evidence,
that unite in favor of Mr. Guerrero, far exceed those inconsistencies, the
legal problems. He is not a perfect man, neither is his medical. But heck,
he went back to work after he got cut, things of this nature. The things that
unite us, exceed those that divide us. There is a time to be united. Right
now is a time to be united.
An example is politics. We don’t have to agree with all the candidates, with
the same ones. But by golly there comes a time when we have got to stick
together as a community. We have to stick together as a jury of peers of a
man to pass judgment and help that person if he is entitled to [sic] under the
evidence. . . .
Because if one is united, one has hope. And with hope, one can live. He
still has a lot of years to live. And it is all going to depend on you.
800 S.W.2d 859, 862 (Tex. App.—San Antonio 1990, writ denied). The court rejected the
plaintiff’s argument on appeal that the argument was merely “a request that the jury view
Guerrero’s case as more united by consistencies than divided by legal technicalities.” Id.
Instead, the court found that the argument was a “forbidden ethnic plea” and was per se
incurable. Id. at 866 (“We hold that incurable reversible error occurs whenever any
attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with
or animus toward a litigant or a witness because of race or ethnicity.”).
52
2. Analysis
4Front argues that “[t]he purpose of Rosales’s rebuttal jury argument was obvious:
Cast 4Front as the person beating the slave (Rosales) in a crowded street and convince
the jurors that what is worse than the beating is if they (who observed it) do nothing about
it.” In fact, counsel repeatedly referred to 4Front as “willfully blind,” making clear that, in
his analogy, 4Front is comparable to the crowd that stood by doing nothing while the slave
was beaten—not, as 4Front suggests, to the person actually carrying out the beating.
This was consistent with Rosales’s general theory that 4Front was liable for his injuries in
part because it failed to take responsibility for ensuring that the forklift was operated
properly.
In any event, we do not believe that the argument at issue constituted the type of
appeal to racial or ethnic prejudice that required reversals in Peñalver, Showbiz, or
Guerrero. 4Front notes that ten of the twelve jurors and the alternate juror in this case
had Hispanic surnames, a point which was also raised by the Guerrero court. See 800
S.W.2d at 862 (noting “that eleven of the twelve jurors had Spanish surnames, as did
Guerrero, his trial attorney, and his treating doctor”). But the story told by Rosales’s
counsel involved a black slave in antebellum New Orleans, and there is no suggestion
that any African-Americans were involved in this case as a juror, witness, party, attorney,
judge, or in any other capacity. Of course, if counsel had indeed made an appeal to
ethnic or racial prejudice, the mere fact that the victim in the story was not of the same
race or ethnicity as most of the jurors would not render the argument acceptable.19 But
19 4Front argues in its appellate reply brief that “[w]hether the jurors are the same race or ethnicity
as the victim in the Abraham Lincoln story makes no difference” and notes that, in Peñalver, where the
argument at issue compared the defendant to the Nazi regime, “the Court’s inquiry did not concern whether
the jurors or parties were Jewish.” However, the defendant in Peñalver was being accused of mistreating
53
that fact itself indicates that counsel did not intend for his argument to be understood as
an appeal to racial or ethnic prejudice—and it indicates that jurors most likely did not
understand it as such.20
Further, we find Peñalver and Showbiz distinguishable. In Peñalver, counsel
explained that Nazi Germany “had a project called T-Four” where “they took all the people
who they thought were inferior in society, primarily older people, impaired people, and
they used them for experiments. They killed them. Over 400,000.” 256 S.W.3d at 680.
Counsel then asserted that the defendant’s position was that damages were minimal
merely because the plaintiff is “old” and “impaired”; and he asked: “Have we regressed
elderly people, and that—not the mistreatment of Jewish people—is precisely the behavior described in
counsel’s Nazi comparison. Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678, 680 (Tex. 2008). We
therefore disagree that it is irrelevant whether the victim in the story was of the same race or ethnicity as
the jurors or parties.
20The San Antonio Court of Appeals held in Guerrero that racial or ethnic appeals are
impermissible, whether explicit or implicit:
The law should not stoop to evaluating subtle distinctions such as whether an argument
was too crude and revolting, or on the other hand sufficiently slick and artful to pass muster.
To permit the sophisticated ethnic plea while condemning those that are open and
unabashed would simply reward counsel for ingenuity in packaging. Inevitably, lawyers
representing their clients zealously within the bounds of the law would test the limits and
fine-tune their arguments to avoid being too explicit. Courts would be asked to label some
arguments permissible and uphold them with a wink when everyone knew that an ethnic
appeal had been made. That course would demean the law and perhaps deepen the
divisions from which society already suffers. . . .
If we were to affirm the judgment before us, we would establish a precedent permitting
calculated, subtle racial or ethnic arguments by all litigants in all types of cases—personal
injury, family law, commercial—provided the arguments were properly dressed up and
disguised. Such a decision would insulate appeals for “unity” when minority litigants found
themselves in court before juries in other parts of this state. That is a real and frightening
prospect in this nation of immigrants. All litigants—anglo, black, hispanic, native American,
oriental, and all others, including governmental and business entities—should feel free to
litigate their cases before juries in all 254 counties without facing state-of-the-art ethnic
pleas in closing argument. Such arguments are forbidden, and it matters not whether
counsel suggests—depending upon the venue—that the jury reward or penalize a litigant
for belonging or not belonging to a racial or ethnic group.
Tex. Emp’rs’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859, 865 (Tex. App.—San Antonio 1990, writ denied). We
share the Guerrero court’s concern, but we do not believe that the argument at issue here constituted an
implicit or explicit racial or ethnic plea.
54
to 1944, 1945 Germany?” Id. The Texas Supreme Court characterized this argument as
“comparing trial counsel to perpetrators of the T-4 Project atrocities” even though there
was no evidence that the defendant “intended to injure or kill” the plaintiff or that the
defendant performed medical experiments on her. Id. at 681–82. The supreme court
concluded that the argument “was designed to incite passions of the jury and turn the
jurors against defense counsel for doing what lawyers are ethically bound to do: advocate
clients’ interests within the bounds of law.” Id. at 682. The supreme court held that the
defendant “was entitled to urge a smaller damages amount than the plaintiffs sought
without being painted as modern-day equivalents of T–4 Project operators who
experimented on and purposefully killed humans.” Id. Here, on the other hand, though
Rosales’s counsel may have sought to incite the jury, we do not believe such incitement
was intended to be made on the basis of racial or ethnic unity or animus. Instead, the
argument may be seen as a response to testimony elicited by 4Front, in particular from
Purswell, arguing that 4Front had no responsibility to monitor or supervise independent
contractors. Moreover, counsel’s accusation that 4Front was “willfully blind” to danger—
even when made in the context of a story involving the beating of a slave—is not as
inflammatory as counsel’s suggestion in Peñalver that the defendant viewed elderly
people as worthless, as the Nazis did. Nor is it as inflammatory as the suggestion in
Showbiz that the plaintiff, who hailed from south Asia, was a “judicial terroris[t].” See 303
S.W.3d at 772.21 At worst, the argument made by Rosales’s counsel in this case can be
21 The Showbiz court, referencing Peñalver, noted that “[j]ust as the horrible events of World War
II still evoke deep passion and emotion, the ongoing War on Terror colors the interpretation of the word
‘terrorism.’ It is not a word to be used lightly in the context of a formal proceeding in court.” Showbiz
Multimedia, LLC v. Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 772 (Tex. App.—Houston [1st Dist.]
2009, no pet.). Slavery is, of course, also a word that evokes passion and emotion in light of our nation’s
history, and it must not be used lightly. But the mere fact that Rosales’s counsel told a story involving the
beating of a slave does not mean that the argument constituted an improper appeal to racial prejudice. For
55
described as hyperbole, which is generally a permissible rhetorical technique in closing
argument. See Reese, 584 S.W.2d at 838; PopCap Games, Inc. v. MumboJumbo, LLC,
350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied).
Considering the record as a whole, we conclude that the argument at issue was
not so extreme as to cause incurable harm. 4Front’s first issue is overruled.
III. CONCLUSION
We modify the judgment to delete the award of exemplary damages, and we affirm
the trial court’s judgment as modified. See TEX. R. APP. P. 43.2(b).
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
12th day of March, 2015.
the reasons discussed herein, we do not believe that it was.
56