George Lewis v. United Parcel Service, General Services Co.

Opinion issued November 4, 2004 In The Court of Appeals For The First District of Texas NO. 01-02-00829-CV ____________ GEORGE LEWIS, Appellant V. UNITED PARCEL SERVICE, INC., Appellee On Appeal from the 189th District Court Harris County, Texas Trial Court Cause No. 00-19870 O P I N I O N Appellant, George Lewis (Lewis), challenges a judgment entered on a take-nothing jury verdict in favor of appellee, United Parcel Service, Inc. (UPS), in his suit for negligence. Lewis presents seven issues, contending that the trial court erred in refusing to submit “a jury question regarding UPS’s right of control,” admitting hearsay testimony and denying Lewis the opportunity to voir dire a witness or to make an offer of proof, denying Lewis’s motion for a mistrial, admitting expert opinion testimony that was based on a “false assumption,” and denying his motion for a new trial. Lewis also contends that the jury’s finding that UPS was not negligent was against the great weight and preponderance of the evidence and that the evidence was legally and factually insufficient to support the jury’s finding that he was negligent. We affirm. Background On October 11, 1999, Lewis, a millwright employed by Turbex Inc. (Turbex), arrived at a UPS facility at approximately 6:45 p.m., to repair a conveyer belt, the “M1-G2.” Before making the repair, Lewis performed a “lockout/tagout” safety procedure on the M1-G2 to prevent it from unexpectedly starting up. Although another adjacent feed belt, the “PF1-1” continued in operation, it stopped after an employee shift change. Around 10:30 p.m., while Lewis stepped onto the PF1-1 to retrieve a tool, he heard a buzzer signaling the start of the conveyor belt. Before he could escape, the conveyor belt injured his right foot. In its charge to the jury, the trial court included standard definitions, in regard to both individuals and companies, of “negligence” and “ordinary care” and presented the following broad-form negligence question: Did the negligence, if any, of those named below, proximately cause the injury in question? Answer “YES” or “NO” for each of the following: a. United Parcel Service, Inc. _____ b. George Lewis _____ The jury answered “no” as to UPS and “yes” as to Lewis. Jury Question on UPS’s Right to Control In issue one, Lewis contends that the trial court erred in failing to submit a right to control question to the jury. In fact, at the charge conference, both parties asked to have a right to control question added to the jury charge. Lewis requested that the following question be submitted: “Did United Parcel Service, Inc. [UPS] have the right to control safety policies and procedures at the Mykawa facility?” The trial court denied Lewis’s request. Lewis’s petition alleges the negligent acts were that (1) UPS’s employee started the conveyor without any warning and (2) UPS’s buzzer did not work properly. It is uncontested that UPS is the owner of the Mykawa facility where Lewis was injured; UPS contracted with Lewis to repair the conveyor; and a UPS employee started the belt that caused Lewis’s injuries. UPS undoubtedly has the right to control the safety policies and procedures of its own employees at its own facility. See Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983) (duty based on right to control is implicit in the master-servant relationship). Because these acts are attributable to UPS, not an independent contractor, UPS’s right to control is implicit and, therefore, not an issue in this case. As such, the trial court did not err in refusing to submit the issue of right to control to the jury; rather, it properly submitted the issue of general negligence only. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Lewis contends that the UPS employee turned on the conveyor belt, “instantly causing [Lewis’s] right foot to be pulled into the belt drive system.” “There was no time between the time [Lewis] heard the buzzer warning that the belt was going to be turned on and when the belt just took off and caught [Lewis’s] foot.” When an injury arises by or contemporaneously with the activity itself, a negligent activity claim arises. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Wilson v. Metz, No. 01-00-01193-CV, 2002 WL 501648, at *3 (Tex. App.—Houston [1st Dist.] Apr. 4, 2002) (not designated for publication). The evidence shows that Lewis was injured by or contemporaneously with the negligent activity itself, not by a condition created by the activity. Considering Lewis’s injury to be the result of the negligent activity of UPS itself, the trial court found UPS had a duty as a matter of law. Therefore, UPS’s duty was not a question of fact for the jury to determine under the circumstances of this case. If negligent activity is raised by the evidence, general negligence instructions are proper. See Keetch, 845 S.W.2d at 264; Ramming, 861 S.W.2d at 464–65. Because this case is a claim for negligent activity, a general negligence charge was proper. See Keetch, 845 S.W.2d at 264; Ramming, 861 S.W.2d at 464–65. The evidence supported a claim based on negligent activity. Having found duty as a matter of law, the trial court did not err in submitting a general negligence charge. We overrule issue one. Denial of Voir Dire Examination and Offer of Proof In issue two, Lewis contends that the trial court erred in “denying [him] the opportunity to voir dire [Paul Allen, a UPS security representative] or make an offer of proof” that was “necessary to demonstrate that Allen’s testimony was based purely on hearsay.” At trial, the following exchange took place: [UPS]:[UPS] calls Paul Allen. [Lewis]:At this time [Lewis] moves to voir dire Paul Allen outside of the presence of the jury. [UPS]:Mr. Allen is a plant engineering supervisor who would have been responsible for - - The Court:Supervisor for who? [UPS]:UPS. The Court:Request for voir dire is respectfully overruled. [Lewis]: Judge, I need to make an offer of proof. The Court: We can do it later. [Lewis]:Judge, I wanted to give a narrative. I can’t waive anything, Judge. Later, during UPS’s direct examination of Allen and after the trial court excused the jury for lunch, the following exchange took place: The Court: Couple of things we need to cover. Prior to Mr. Allen coming to the bench [Lewis’s] attorney asked if he could take him on voir dire outside the presence of the jury. I know that the reason may be moot now, but I don’t know that for certain. So if there is anything [Lewis’s] attorney wants to make as far as a bill, you can do that now if you like. I ask you to keep it relatively brief if you need to. Anything? [Lewis]: No. I will just cross him. Although Lewis asserts that Allen’s testimony was inadmissible because “it was based purely on hearsay” and that he was prevented from showing this fact because the trial court did not allow him to voir dire Allen, Lewis directs us to no portion of Allen’s testimony that he objected to as hearsay. Lewis merely asserts that Allen’s testimony was “inadmissible and its admission probably caused the rendition of an improper judgment.” An error may not be predicated upon a ruling that admits evidence unless a substantial right of a party is affected and a timely objection or motion to strike appears in the record, stating the specific ground for the objection, if the specific ground was not apparent from the context. Tex. R. Evid. 103(a)(1). In regard to Lewis’s assertion that the trial court denied him the opportunity to voir dire Allen, there is nothing in the record showing what Lewis intended to prove in his voir dire examination of Allen. Moreover, in regard to Lewis’s assertion that the trial court prevented him from making an offer of proof until “it was too late,” Rule of Evidence 103(b) states that “[t]he offering party shall, as soon as practicable, but before the court’s charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. Tex. R. Evid. 103(b) (emphasis added). Here, Lewis expressly declined the trial court’s invitation to make an offer of proof during a break in Allen’s testimony and well before the charge was read to the jury. Thus, there is no basis for us to review the trial court’s admission of Allen’s testimony and its denial of Lewis’s request to voir dire Allen. See Tex. R. App. P. 33.1(a). Accordingly, we hold that Lewis has waived any error in regard to issue two. We overrule issue two. Testimony Concerning Workers’ Compensation Benefits In issue three, Lewis argues that the trial court erred in failing to grant “a mistrial or a new trial” because “the jury was prejudiced” by testimony that Lewis received workers’ compensation benefits. We review a trial court’s denial of a mistrial under an abuse of discretion standard. Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Downer Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The injection of the issue of insurance into a trial does not automatically create reversible error. Babcock v. Northwest Mem’l Hosp., 767 S.W.2d 705, 708 (Tex. 1989). Rather, a complaining party must establish that the injection of the issue of insurance was prejudicial and actually caused the rendition of an improper judgment. See Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex. App.—El Paso 1993, writ denied). In the absence of a clear showing by the complaining party that any reference to insurance resulted in harm or prejudice, a trial court does not abuse its discretion in refusing to declare a mistrial. Brownsville Pediatric Ass’n v. Reyes, 68 S.W.3d 184, 193 (Tex. App.—Corpus Christi 2002, no pet.). During UPS’s redirect examination, Larry Alvarez, the owner of Turbex, testified as follows: [UPS]:Mr. Alvarez, have you had any discussions with Mr. Lewis since the accident about the possibility of him coming back to work? [Alvarez]: Yes, sir, [I] have. [UPS]: Where were you when that conversation took place? [Alvarez]:Well, a couple of times—I can remember one time in particular I was out at a jobsite on my mobile phone. I had just talked to [Lewis’s] brother, who worked for us at the time, and [Lewis] had talked to me a couple of weeks before or sometime before. I think his workman’s comp was fixing to run out and he was worried about his source of money. And you know, trying to help the best way I could, I told him to go file for unemployment. That was money I had paid for on his behalf. Lewis immediately objected to Alvarez’s testimony because it violated his motion in limine and he requested an instruction to disregard. The trial court then sustained Lewis’s objection, instructed the jury to disregard Alvarez’s answer, and then excused the jury from the courtroom. At this point, Lewis moved for a mistrial. However, after hearing argument from the parties, the trial court denied Lewis’s motion. The trial court then brought the jury back into the courtroom and gave them the following additional instruction: [The Court]:. . . . I need to address one other area with you. And this is what took us so long. We were trying to find the best way to handle this situation. And this is our result. You just heard—and it wasn’t anything intentional on his part. Mr. Alvarez is not an attorney. He is a business owner and that’s why he is here today. He mentioned the issue of worker’s compensation insurance. Best way for us to handle this is just to tell you now that there is what’s called a worker’s compensation lien in this case. Mr. Lewis did receive worker’s compensation benefits. Because there’s a lien, and that’s just like a materialman’s lien or something else, they, worker’s compensation has a stake in this case. And if there is a recovery by [Lewis], part of that recovery will go to the worker’s compensation company to reimburse them for the benefits they paid Mr. Lewis. That’s all we need to say about that here. And let me just leave it at that. Lewis argues that Alvarez’s testimony “left the impression with the jury that Mr. Lewis was taken care of financially and clearly resulted in the jury’s failure to find any negligence on the part of UPS.” Furthermore, Lewis asserts that, because it was “uncontroverted” that he suffered damages, the jury’s failure to award him damages “clearly demonstrated [that the jury] was not going to follow any of the trial court’s instructions.” However, in the absence of evidence to the contrary, we must presume that a jury followed a trial court’s instructions. Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex. 1982). Here, during deliberations, the jury submitted the following question to the trial court: “[i]f in question one we find that UPS was not negligent, do we answer [the damage question]?” After consulting with the parties, the trial court instructed the jury to “[p]lease follow the instructions as given to you in the charge of the [c]ourt.” Neither party objected to this instruction, and Lewis does not challenge it on appeal. After further deliberations, the jury returned its finding of zero damages. It does not logically follow that, because the jury returned a finding of zero damages, it “was not going to follow any of the trial court’s instructions.” We conclude that Lewis has not made a clear showing that he was harmed or prejudiced by Alvarez’s testimony that he received worker’s compensation benefits. Accordingly, we hold that the trial court did not abuse its discretion in denying Lewis’s motion for a mistrial. We overrule issue three. Sufficiency of the Evidence In issue five, Lewis argues that the evidence in support of the jury’s finding that UPS was not negligent was factually insufficient. In issue six, Lewis argues that the jury’s finding that he was negligent was not supported by legally and factually sufficient evidence. In our review of the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the party in whose favor the verdict was rendered, and we indulge every reasonable inference from the evidence in that party’s favor. Formosa Plastics v. Presidio Eng’rs, 960 S.W.2d 41, 48 (Tex. 1998). Anything more than a scintilla of evidence is legally sufficient to support the finding. Id. Our review of the factual sufficiency of the evidence that Lewis was negligent requires us to consider, weigh, and examine all of the evidence that supports and contradicts the jury’s determination. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1980). We may set aside the verdict only if the evidence that supports the jury’s finding is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In our review of the factual sufficiency of the evidence that UPS was not negligent, we must first examine the record to determine if there is some evidence to support the finding and, if so, then we must determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Lewis argues that the jury’s finding that UPS was not negligent was against the great weight and preponderance of the evidence because (1) “[he] had no reason to believe the PF1-1 was still active, because he had watched the last shift leave for the night,” (2) Jerry Carpenter, a UPS supervisor, “could have alerted [him] at 8:00 p.m. that a shift was coming in at 10:00 p.m.,” and (3) Carpenter could have told the employee who started the PF1-1 that Lewis was repairing the M1-G2 conveyor belt “before authorizing her to start the [PF1-1] at 10:00 p.m.” Lewis also contends that this evidence was so strong that it demonstrates that the evidence supporting the jury’s finding that he was negligent was so weak that the finding was clearly wrong and manifestly unjust. Moreover, Lewis asserts the expert witness testimony of Lanny Berke, a mechanical engineering safety consultant, who stated that Lewis was negligent because he was “required” to lockout/tagout the PF1-1 was “no evidence” because a federal regulation, upon which Berke relied on in reaching this conclusion, did not apply to Lewis “between shift changes.” Regardless of Berke’s testimony that Lewis was negligent, there was ample evidence, under each of the appropriate standards of review, to support the jury’s findings that UPS was not negligent and that Lewis was negligent. Carpenter testified that Lewis was authorized to lockout the PF1-1 if he “needed that belt shut off” and that, if Lewis had followed the lockout/tagout safety procedure in regard to the PF1-1, it would not have started. Allen testified that the five-second delay between the warning buzzer and the start of the PF1-1 had worked the day after Lewis was injured, and Alvarez testified that Lewis told him that he had heard the buzzer and that he “just [did not] react to it.” Alvarez also testified that Turbex was responsible for training Lewis in “the safety aspects of his job” and for supervising him while he was at a customer’s facility, and that Lewis should have gotten out of “harm[’s] way very fast” when he heard the buzzer. Lewis admitted that lockout/tagout was an important safety procedure and that he had been using it “for a very long time.” He also testified that he knew that it was dangerous to step onto a conveyor belt that had not been locked out, and he admitted that nothing had prevented him from locking out the PF1-1. Finally, Berke also testified that he examined the scene of the accident, reviewed the relevant documents, and concluded that, in his opinion, UPS did nothing to cause the accident. This evidence supports the jury’s finding that Lewis, and Lewis alone, was at fault for his accident. Accordingly, we hold that the evidence was legally sufficient to support the jury’s finding that Lewis was negligent. Moreover, we cannot conclude that the evidence supporting the jury’s finding that Lewis was negligent was so weak, or the evidence against it so strong, that the finding was clearly wrong and manifestly unjust. Neither can we conclude that the jury’s finding that UPS was not negligent was so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, we hold that the evidence was factually sufficient to support the jury’s findings that UPS was not negligent and that Lewis was negligent. We overrule issues five and six. Conclusion Having held that the evidence was factually sufficient to support the jury’s finding that UPS was not negligent and legally and factually sufficient to support the jury’s finding that Lewis was negligent, we need not address issue four (that the trial court erred in admitting expert opinion testimony regarding Lewis’s loss of earning capacity) and issue seven (that the trial court erred in denying Lewis’s motion for a new trial because the jury’s finding of zero damages was contrary to the uncontested evidence and the instructions in the jury charge). We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Higley. Justice Jennings, concurring in the judgment only.