Tyson Foods, Inc. v. Gustavo Tovar Guzman--Appeal from 123rd District Court of Panola County

NO. 12-02-00052-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

TYSON FOODS, INC.,

 
APPEAL FROM THE 123RD

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

GUSTAVO TOVAR GUZMAN,

APPELLEE

 
PANOLA COUNTY, TEXAS
OPINION

Following a jury trial, Appellant Tyson Foods, Inc. ("Tyson") was ordered to pay Appellee Gustavo Tovar Guzman ("Guzman") $745,496.41 in damages for injuries he sustained while catching chickens that were destined for processing by Tyson. In three issues, Tyson challenges two of the trial court's evidentiary rulings and argues that the evidence is legally and factually insufficient to support the jury's finding of negligence and the amount of damages it awarded Guzman for lost earning capacity. We affirm.

 

Background

Tyson subcontracted with Jerry Collum ("Collum") to provide labor for catching chickens at various farms for future processing at Tyson's plants. Guzman was one of Collum's employees and had been working for him for nine years as a chicken catcher. The chicken-catching process involves a crew leader and five "catchers" who enter the chicken house and corral the chickens to one side of the house. A Tyson employee then drives a forklift carrying a large cage into the chicken house. When the forklift driver enters the chicken house with the cage, the operator looks for the "block man" who then directs the operator where to go. The block man is also responsible for placing a large steel block on the ground onto which the operator sets one end of the cage which in turn causes the cage to rest at an angle that keeps the chickens from escaping from the cage. After the operator sets the cage on the block, the driver backs the forklift out from under the empty cage and then either backs out of the chicken house to retrieve another cage or, if there is a cage already full of chickens, picks up the full cage with the forklift and removes it from the chicken house.

On July 30, 1998, Guzman was in the process of rounding up chickens when Brian Jones ("Jones"), a Tyson employee, ran into Guzman with a forklift. As a result of the accident, Guzman suffered spinal and nerve damage and endured a potentially paralyzing surgery to regain some limb movement. Guzman now has a physical handicap and is limited to working in minimum-wage jobs. Guzman sued Tyson, claiming that the accident was caused by the negligence of Tyson and its employee. Guzman's case went to trial on October 23, 2001, and on October 26, the jury rendered its verdict. The jury found both parties negligent and attributed 80% of the fault to Tyson and 20% to Guzman. The jury further awarded Guzman $931,870.51 in damages ($425,000.00 for past physical pain and mental anguish, $150,000.00 for future physical pain and mental anguish, $10,000.00 for past physical impairment, $10,000.00 for future physical impairment, $51,870.51 for past medical care, $5,000.00 for future medical care, $70,000.00 for past lost earning capacity, and $210,000.00 for future lost earning capacity). After deducting 20% of the total jury award for Guzman's own negligence, the trial court's final judgment awarded Guzman $745,496.41. The final judgment was signed by the trial court on November 5, and Tyson filed a motion for new trial on December 5. This motion was overruled by operation of law, and Tyson filed a notice of appeal on January 31, 2002. This appeal followed.

 

Admission of Tyson's Subsequent Remedial Measures

In its first issue, Tyson argues that the trial court committed reversible error by allowing Guzman to show the jury various safety precautions Tyson implemented after Guzman's accident to prevent this type of accident from happening in the future. Tyson contends that this evidence was prejudicial to its defense and was not admissible because the Texas Rules of Evidence do not permit the introduction of safety precautions taken after an accident. Guzman maintains that the trial court did not err in allowing him to introduce the later safety measures into evidence because Tyson disputed that it exercised control over the chicken-catching operation; therefore, the exception to the general rule applies.

At the time of the accident, Tyson did not require the chicken-catchers to wear reflective vests, even though these operations were conducted at dark. Tyson also did not have any system of guidelines or procedures in place to prevent accidents such as the one involving Guzman. At trial, the trial court admitted evidence offered by Guzman that Tyson required its subcontractors' employees to wear reflective vests during the chicken-catching operations. The trial court also admitted evidence that Tyson imposed new procedures on its subcontractors' employees that governed the employees' movement and activities during the chicken-catching operation.

Tyson objected to this evidence at trial and argued that the evidence directly contravened rule 407 of the Texas Rules of Evidence, which limits evidence of subsequent remedial measures, because it was offered to show that Tyson was negligent on the day of the accident. Guzman countered Tyson's argument by contending that the exception to rule 407 applies in this case because the evidence was offered to show that Tyson had exercised control over the chicken-catching operations.

Standard of Review and Governing Law

The admission or exclusion of evidence is a matter within the discretion of the trial court. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In order for an appellant to obtain a reversal based on a trial court's error in the admission or exclusion of evidence, it must be demonstrated that the ruling was error and that the error was calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1; Malone, 972 S.W.2d at 43. The appellate court must review the entire record when making this determination. Interstate Northborough Partnership v. State, 66 S.W.3d 213, 220 (Tex. 2001). Reversible error does not usually occur in connection with rulings on questions of evidence, unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Id.

Analysis

Rule 407(a) of the Texas Rules of Evidence states as follows:

 

(a) Subsequent Remedial Measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment. Nothing in this rule shall preclude admissibility in products liability cases based on strict liability.

 

Tex. R. Evid. 407(a).

The trial court permitted Guzman to introduce pictures and a videotape of workers involved in the chicken-catching process. The pictures and the video, taken two and a half years after the accident in December 2000, depicted workers in reflective vests rounding up chickens. Tyson contends that the video shows the changes Tyson made in its safety policy following the accident. The trial court also allowed Guzman, his brother, and Wayne Seelbach ("Seelbach"), Guzman's safety expert, to testify that Tyson had implemented the safety vests and safer methods of rounding up the chickens after Guzman's accident. Specifically, Guzman testified that the vests worn in the December 2000 video were not being worn on the date of Guzman's accident. Guzman also testified that Tyson changed the chicken-catching procedures to require the block man and the catchers to wear reflective vests and that Tyson changed the way in which the block man and the catchers positioned themselves around a moving forklift.

Guzman's brother, Jose Ramiro Tovar ("Tovar"), reiterated that after Guzman's accident, Tyson instituted rules requiring workers to wear reflective vests and changing the way block men and catchers positioned themselves during the process. Seelbach testified that the changes came about as the result of a corporate safety analysis performed by Tyson after the accident. Seelbach further stated that Tyson had "two ways of doing it before the accident and after the accident," and that "what they did with the reflective vest is a good step. That would have been good to initiate."

Guzman also introduced a document dated February 1, 1999, entitled "Live Haul and Catching Safety." This document sets out the policies and procedures that Tyson employees and "any others who work around [them]" must follow when catching chickens. It requires all workers to wear reflective vests and requires the forklifts to have a "working reverse alarm" and "amber flashing lights." The document also sets forth the procedure for moving from one side of the house to the other after a cage has been filled with chickens: "All catchers except the block man will remain on the side of the house with the full cage until the empty cage has been set down. Only after the empty cage has been set down may the catchers move towards the side of the house where the empty cage is located." After Guzman introduced this document into evidence, Seelbach testified that Tyson should have taken these safety precautions before the accident.

Guzman also focused on Tyson's subsequent remedial measures when cross-examining Jones. He admitted that the measures Tyson took after the accident made the process "a lot safer." Guzman reiterated Tyson's subsequent measures during the cross-examination of Mitch Menefee ("Menefee"), a Tyson supervisor. Menefee testified that he had a meeting with his supervisor after the accident and that they decided to make the changes in catching procedure and the use of "personal protective equipment." Menefee also said that the catchers were going to be required to wear reflective vests in future operations "in order to increase their visibility to the driver/forklift operators."

Guzman recognizes that in the general contractor/independent contractor relationship, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2002). However, he also asserts that a duty does arise if the general contractor retains some control over the manner in which the independent contractor performs its work. Id.

Guzman maintains that Tyson "vigorously contested" the issue of control throughout the trial. Moreover, Guzman argues that because "control" was a controverted issue in this case, the exception to rule 407(a) applies in this case and the trial court properly admitted the evidence. Tyson, on the other hand, contends that it stipulated to the issue of control during a pre-trial objection to the subsequent remedial measures. In its brief, Tyson states that it stipulated that Tyson "has a degree of control sufficient to allow them to exercise control over the manner and means by which the third party contractors accomplish the objective of the contract," including "sufficient control to require workers to wear a reflective vest." Tyson also argues that it had never contested the issue of feasibility.

Guzman argues that the questions and statements Tyson's counsel propounded to the various witnesses and to the court establishes that the issue of control remained a controversy during trial. Guzman also contends that Tyson did not properly stipulate to any issue of control because its attempt to stipulate to some areas of control and not others made the stipulation vague and incomplete. Because the stipulation was vague and incomplete, Guzman maintains that the issue of control remained a contested one and was open to review by the jury. See Shepherd v. Loweth, 962 S.W.2d 28, 37 (Tex. 1998); Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 734 (Tex. App.- Corpus Christi 1994, writ denied).

Guzman points to the following exchange that took place at the bench between Tyson's counsel and the court in support of his contention that control was controverted:

 

TYSON'S COUNSEL: Your Honor, we have one very brief matter we can take up at the bench-

 

THE COURT: All right. (Conference at the bench as follows:)

 

TYSON'S COUNSEL: Defendant Tyson Foods renews its objection to any evidence that might

be offered by plaintiff that would either directly or by implication reveal to this jury that there has

been any nature or any type of a subsequent remedial measure.

 

Particularly, we think there may be testimony or a video that would show that the catchers are now required to wear reflective vests which enhances their visibility in the low light conditions that typically prevail in the chicken house. We believe that that is squarely within the rule concerning subsequent remedial measures.

 

[Guzman's counsel] has indicated that he thinks that it is admissible under an exception to that rule in that it goes to show control. Tyson does not dispute that it has sufficient control over the conduct within the chicken houses to require the workers to wear a reflective vest, much in the same way that an oil company has sufficient control over its drilling locations and other facilities to require employees of third party contractors to wear steel-toed boots or hard hats or safety glasses.

 

Tyson does not acknowledge that it has a degree of control sufficient to allow them to exercise control over the manner and means by which the third party contractors accomplish the objective of the contract. (Emphasis added).

 

But they do have sufficient control to require the workers to wear a reflective vest. Tyson is willing to stipulate to that degree of control. Therefore, it is no longer a contested issue. And [Guzman's counsel] cannot rely on that exception to the rule against evidence of subsequent remedial measures.

 

Guzman argues that Tyson contested the issue of control in other parts of the trial, namely in its cross-examination of Tovar and Collum. During Tyson's cross-examination of Tovar, the following exchange took place:

 
When you were working in the chicken houses at eleven years old, you weren't working as a Tyson employee, were you?

A: I was working for Jerry Collum. Tyson I think.

 

Q: So you were working for Jerry Collum, is that right?

 

A: I was eleven years old. I didn't know who I was working for. I just know that Jerry give me my check.

 

Q: So you were working for Jerry Collum, not Tyson, right?

 

A: Tyson, yes.

 

Q: Who are you working for now? Jerry Collum?

 

A: Yes, sir.

Q: Are you working for the same person now that you were working for when you were eleven years old?

 

A: Yes, sir.

 

Q: So you were working for Jerry Collum when you were eleven years old, right?

 

A: Yes, sir.

 

During Tyson's examination of Collum, the following exchange took place:

 
When your crew is in a house catching chickens, who directs your crew on what to do?
Well, my lead hand does.
And when your crew is in the house, in a house catching chickens, who's responsible for your crew's safety?
Well, I depend on my lead hand.
Do you consider it to be Tyson's responsibility to tell your crew how to catch chickens?
No, it's not.

Tyson, on the other hand, asserts that Brookshire Brothers, Inc. v. Lewis, 911 S.W.2d 791 (Tex. App.- Tyler 1995, writ denied), controls the outcome of this case. In Lewis, the plaintiff sued Brookshire's when an automobile driven by a third party crashed through the front of the store and injured him. Lewis, 911 S.W.2d at 793. The jury determined that Brookshire's was negligent in not providing any barriers or other protective devices to prevent cars from rolling from the parking spaces into, and potentially through, the storefront. Id. At trial, the jury heard evidence from one of the plaintiff's expert witnesses that Brookshire's had erected "bollards," which are concrete-filled steel pipes set vertically in front of the parking spaces, at a similar store to prevent cars from crashing into the front of the store. Id. at 796. The record also showed that the similar store was built eight to nine months after Lewis's accident and that Brookshire's employees testified that Lewis's accident was a factor in the decision to install the bollards there. Id.

In Lewis, we noted that although the evidence clearly concerned subsequent remedial actions by Brookshire's, Lewis claimed that the evidence was offered to meet the exception to rule 407(a). Lewis argued that the evidence was not offered to show negligence, but was offered to prove the feasibility of precautionary measures. Id. Lewis further contended that Brookshire's denied the feasibility of any protective devices to prevent a similar accident and cited eight pages of the statement of facts to support his claim. Id.

In addressing the issue, we acknowledged that evidence of subsequent remedial measures may be admitted when it is not offered to show negligence or culpable conduct, but instead is offered to prove ownership, control or feasibility of precautionary measures, if controverted. Id. at 795. We reviewed the pages cited by Lewis and found no evidence offered by Brookshire's to refute the feasibility of the cost or efficacy of the protective measures such as the bollards installed at the second store. Id. at 796. After searching the record for evidence of a refutation by Brookshire's and finding none, we held that the proof of the subsequent remedial measures was not intended to address such a refutation and therefore should not have been admitted. Id.

In analyzing whether the evidentiary ruling required a reversal, we noted that Brookshire's defense was that it had no duty to guard against the danger to customers from vehicles crashing into Brookshire's store because such occurrences are so rare that they could not be reasonably foreseen in the light of ordinary experience. Id. Since the erroneously admitted evidence struck at the heart of Brookshire's defense and was a recognition of the concern that Brookshire's contended to be rare and unforeseeable, the admission of that evidence was reasonably calculated to erode Brookshire's position in the case and was harmful. Id. Therefore, the case was reversed and remanded for a new trial. Id.

The facts of the instant case are distinguishable from the facts in Lewis. Here, Tyson did not stipulate to all areas of control. It specifically told the court that "Tyson does not acknowledge that it has a degree of control sufficient to allow them to exercise control over the manner and means by which the third party contractors accomplish the objective of the contract." The first element that must be proven in an action for negligence is that a legal duty was owed to the plaintiff by the defendant. Harrison, 70 S.W.3d at 783. Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs his work in a safe manner. Id. (citing Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999)). A duty does arise, however, if the general contractor retains some control over the manner in which the independent contractor performs its work. Id. (Emphasis added). Section 414 of the Restatement (Second) of Torts, which the supreme court adopted in Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985), further explains this principle:

 

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

 

Restatement (Second) of Torts 414 (1965); Harrison, 70 S.W.3d at 783. Under the supreme court's decision in Redinger, a general contractor may owe a duty of reasonable care to a subcontractor's employee, and consequently may be liable for injury to that employee, if the general contractor retains control over part of the work to be performed: "[W]hen the general contractor exercises some control over a subcontractor's work he may be liable unless he exercises reasonable care in supervising the subcontractor's activity." Id. (citing Redinger, 689 S.W.2d at 418).

Because Tyson did not stipulate, and thereby denied, that it "ha[d] a degree of control sufficient to allow [it] to exercise control over the manner and means by which the third party contractors accomplish the objective of the contract," Guzman was left to prove that Tyson owed him a legal duty. Under Harrison and Redinger, the only way that he could do that was to prove that Tyson exercised control over the manner in which Collum's employees performed their work. By refusing to stipulate to the "manner and means" by which Collum's employees performed their work, the issue of control was controverted and the evidence of subsequent remedial measures was properly admitted. See Exxon Corp. v. Roberts, 724 S.W.2d 863, 869 (Tex. App.- Texarkana 1987, writ ref'd n.r.e.); Hull v. Chevron U.S.A., 812 F.2d 584, 587 (10th Cir. 1987). Tyson's first issue is overruled.

 

Admission of Expert Testimony on Lost Earning Capacity

In its second issue, Tyson contends that the trial court erred when it refused to exclude Dr. Carl Hansen, Guzman's expert witness on his lost earning capacity, because the foundation upon which Dr. Hansen based his opinion was unreliable. Specifically, Tyson argues that Dr. Hansen erroneously assumed that Guzman was legally entitled to work in the United States. Because Guzman was not a United States citizen and was not otherwise authorized to work in the United States, Tyson concludes that he was not entitled to receive any compensatory award for lost earning capacity. Guzman maintains that the trial court did not err in allowing his expert to testify as to his lost earning capacity because Texas law does not require citizenship or the possession of an immigration work permit as a prerequisite to recovering damages for lost earning capacity.

Standard of Review

A two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). Whether the trial court properly admitted expert testimony is subject to an abuse of discretion standard of review. Id.; E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Robinson, 923 S.W.2d at 558; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The test is not whether, "in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action." Robinson, 932 S.W.2d at 558. A reviewing court cannot conclude that a trial court abused its discretion if, in the same circumstances, it would have ruled differently or if the trial court committed a mere error in judgment. Id. Although the trial court serves as an evidentiary gatekeeper by screening out irrelevant and unreliable expert evidence, it has broad discretion to determine the admissibility of that evidence. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002) (citing Robinson, 923 S.W.2d at 556). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

Analysis

Tyson cites the recent United States Supreme Court case of Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 271 (2002) for the proposition that "national public policy, as expressed by the United States Congress in enacting immigration reforms, militates against any award of wages as damages to undocumented alien laborers."

In Hoffman, Jose Castro, an undocumented alien worker, was laid off for supporting a union-organizing campaign at Hoffman Plastic Compounds, Inc. ("Hoffman"). Id. at 140. Three years later, the National Labor Relations Board ("NLRB") found that the layoff violated the National Labor Relations Act ("NLRA") and awarded Castro back pay and reinstatement at the company. An administrative law judge ("ALJ") then conducted a hearing to determine how much back pay Hoffman owed Castro. Id. at 141. During the hearing, Castro testified that he was born in Mexico and that he had never been legally admitted to, or authorized to work in, the United States. He also admitted that he obtained employment with Hoffman after he tendered a birth certificate belonging to a friend who was born in Texas. He also admitted that he used this birth certificate to fraudulently obtain a California's driver's license, a Social Security card, and to fraudulently obtain employment after he was laid off by Hoffman. Id. No evidence was presented to the judge to show that Castro had applied or intended to apply for legal authorization to work in the United States. Based on this testimony, the ALJ reversed the NLRB's award of reinstatement and back pay to Castro. The ALJ determined that such relief would be contrary to the Supreme Court's holding in Sure-Tan, Inc. v. National Labor Relations Board, 467 U.S. 883, 104 S. Ct. 2803, 81 L. Ed. 2d 732 (1984) (1) and in conflict with Immigration Reform and Control Act of 1986 ("IRCA"), which makes it unlawful for employers to knowingly hire undocumented workers or for employees to use fraudulent documents to establish employment eligibility. See 8 U.S.C.A. 1324a (West 2002).

The NLRB reversed the ALJ's decision to award back pay, and the D.C. Court of Appeals denied Hoffman's petition for review. The Supreme Court reversed the NLRB's decision, noting that Congress expressly made it criminally punishable for an illegal alien to obtain employment with false documents or for an employer to knowingly hire an undocumented alien worker. Hoffman, 535 U.S. at 149. Therefore, the Court held that an award of back pay by the NLRB to illegal aliens would "unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in the IRCA." Id. at 151.

Tyson argues that the Court's holding in Hoffman demonstrates a federal congressional policy to refrain from awarding undocumented alien workers compensation for lost earning capacity. We disagree. First, this holding only applies to an undocumented alien worker's remedy for an employer's violation of the NLRA and does not apply to common-law personal injury damages. Next, Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity. See Wal-Mart Stores, Inc. v. Cordova, 856 S.W.2d 768, 770 n.1 (Tex. App.- El Paso 1993, writ denied). Third, Tyson's contention seems to be in the nature of a federal preemption defense, which is an affirmative defense and must be raised in the trial court. See Whitten v. Vehicle Removal Corp., 56 S.W.3d 293, 298 (Tex. App.- Dallas 2001, pet. denied) (citing Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545-96 (Tex. 1991)). Tyson did not raise this affirmative defense in the trial court; therefore, it is waived. Id.

Dr. Hansen's opinion was not unreliable because Guzman was entitled to receive compensation for lost earning capacity even though he is not a citizen of the United States. Texas law clearly allows for the recovery of damages for lost earning capacity, regardless of the claimant's citizenship or immigration status. Therefore, the trial court did not err in overruling Tyson's motion to exclude Dr. Hansen's opinions. Tyson's second issue is overruled.

 

Legal and Factual Sufficiency

In its third and final issue, Tyson argues that the evidence is legally and factually insufficient to support the jury's finding that Tyson was negligent and that Guzman was entitled to damages for his lost earning capacity. Guzman contends that the evidence is legally and factually sufficient to support the challenged jury findings.

Standard of Review

In reviewing a legal sufficiency or no evidence complaint, the appellate court must consider only the evidence and inferences tending to support the challenged findings and disregard all evidence and inferences to the contrary. If there is more than a scintilla of evidence to support the challenged findings, the no evidence challenge fails. Leitch v. Hornsley, 935 S.W.2d 114, 118 (Tex. 1996). We may only sustain a "no evidence" point when the record discloses one of the following: (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). It is not within our province to second guess the fact finder unless only one inference can be drawn from the evidence. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex. 1992). If the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence, more than a scintilla of evidence exists. Burroughs Wellcome v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

When conducting a factual sufficiency review, we must consider all of the evidence, including any evidence contrary to the verdict. Plas-Tex. Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). Furthermore, we must reverse on the basis of factual insufficiency if the court's finding is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). This court is not a fact finder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if a different conclusion could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.-Dallas 1986, writ ref'd n.r.e.). When a party without the burden of proof on an issue challenges the factual sufficiency of the evidence, the question is whether insufficient evidence supports the complained-of finding. Gooch v. Am. Sling Co., 902 S.W.2d 181, 184 (Tex. App.- Fort Worth 1995, no writ). An assertion that the evidence is "insufficient" to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Analysis

Tyson argues that the record is devoid of legally and factually sufficient evidence to support the jury's verdict that it was negligent and that Guzman was entitled to compensation for lost earning capacity. Tyson contends that although Guzman proved that an accident occurred, such proof is no evidence that what Tyson's employee did constituted a breach of the duty of care. Specifically, Tyson asserts that no evidence exists that its failure to institute the new policies and procedures was a "cause in fact" or "but for" cause of the accident. Therefore, Tyson concludes, since Guzman failed to prove those two essential elements of a negligence cause of action, he did not prove that any breach of the duty of care by Tyson was a proximate cause of the accident.

With respect to the jury's award of lost earning capacity, Tyson maintains that the evidence was legally and factually insufficient to support such an award because Guzman was not legally entitled to receive lost earning capacity. In support of this contention, Tyson relies on the Hoffman decision.

Proximate Cause

Proximate cause incorporates two elements: foreseeability and cause in fact. Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 477 (Tex.1995). Foreseeability requires only that the general danger, not the exact sequence of events producing the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). The test for foreseeability is whether a person of ordinary intelligence would have anticipated the danger his or her negligence creates. Doe, 907 S.W.2d at 478. As an element of proximate cause, cause in fact means that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. Id. at 477. Proximate cause may be determined from circumstantial evidence. Brown v. Goldstein, 685 S.W.2d 640, 642 (Tex.1985).

At trial, Seelbach testified that Jones did not operate his forklift safely on the day of the accident and that Tyson failed to provide Guzman with a safe place to work. With regard to Jones's driving, Seelbach noted that Jones failed to comply with Tyson's instructions to its forklift drivers, instituted after Guzman's accident, instructing the drivers to "never allow catchers to move behind the forklift or otherwise out of sight." Seelbach further testified that the workers should have been instructed to not catch any chickens until the cage had been set down at the place where the block man indicated and the forklift started to back out of the chicken house. In Seelbach's opinion, Tyson failed to perform a job safety analysis that would have led to the implementation of a policy or procedure requiring the chicken catchers to 1) wear protective clothing and 2) move to one side of the chicken house until the block man put the empty cage on the ground. Seelbach also opined that the accident would not have happened if Tyson's forklift driver had complied with Tyson's own rules and procedures for operations as set forth in Tyson's safety video, training manual and handbook. Had Tyson furnished its employees with reflective vests and implemented safety procedures for catching the chickens prior to the accident, Seelbach believed that such a measure would have given Jones the opportunity to see the chicken catchers more clearly while they were working in the dark. Therefore, according to Seelbach, this accident would not have occurred.

Jones (the forklift driver), Tyson's employee, admitted at trial that he has to accept some of the responsibility for this accident because he "was running the machine." He also admitted that had he did not sense that Guzman was in front of him and that if he had, he would have stopped.

We hold that the testimony of Seelbach is more than a scintilla of evidence that the jury could have relied on to come to the conclusion that Tyson's failure to implement safe chicken-catching policies was a substantial factor and, accordingly, a cause-in-fact of the accident. From that testimony, the jury could have reasonably concluded that had Tyson implemented a policy until the empty cage was placed on the block in the middle of the chicken house, the accident would not have occurred. Furthermore, the jury could have relied on the testimony of Jones, who admitted that he was partly responsible for the accident.

Furthermore, Seelbach also stated that the way Tyson performed this operation was a "recipe for disaster" because of the "low light conditions, crowded conditions," with people that may not necessarily understand the work scope totally, the lack of a pre-job meeting, and the failure to perform a job safety analysis. Without such policies in place, and knowing that the chicken-catching operation is conducted at dark, Seelbach's testimony is also more than a scintilla of evidence that Tyson should have been aware of the general danger that one of the chicken catchers could be hit by a forklift carrying an empty cage. Therefore, the evidence is legally sufficient to support the jury's finding that Tyson's negligence was foreseeable and was the cause-in-fact of Guzman's injuries.

With regard to Tyson's factual insufficiency issue, Tyson does not direct us to any evidence to contradict the evidence offered to support Guzman's negligence claim. However, after a review of the record, we note that the only evidence that Tyson offered to contradict the foreseeability element was the testimony of Tim Hooper ("Hooper"), the complex personnel manager for Tyson's Carthage, Texas operations. Hooper testified that out of all of Tyson's chicken-catching operations over the past twenty years, he only knew of one incident where a chicken catcher was injured by a forklift carrying a chicken cage. Although this is some evidence from which a jury could have possibly inferred that Tyson could not foresee an accident similar to the one involving Guzman, this evidence is not so overwhelming that the jury's verdict should be set aside. Therefore, the evidence was factually sufficient to support the jury's finding of negligence.

Lost Earning Capacity

Tyson complains that the evidence was legally and factually insufficient to support the jury's award of past and future lost earning capacity. In support of its argument, Tyson relies on the Hoffman decision for the proposition that Guzman was not legally entitled to obtain wages in the United States and therefore is not legally entitled to collect damages for lost earning capacity. Because he was not legally entitled to collect damages for lost earning capacity, Tyson argues that there is no evidence to support the jury's award of such damages.

As we stated previously, Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity. See Cordova, 856 S.W.2d at 770, n.1. Therefore, the fact that Guzman was not a United States citizen at the time of the accident has no bearing on his ability to recover damages for lost earning capacity. Tyson's third issue is overruled.

Conclusion

At trial, Tyson expressly denied that it exercised control over the manner and means by which the chicken catchers accomplish their objective; therefore, the evidence of Tyson's subsequent remedial measures was properly admitted. The issue of whether Guzman is a United States citizen is immaterial to the determination of his damages for lost earning capacity. Dr. Hansen's failure to take into account that Guzman is not a United States citizen does not render his opinion on Guzman's lost earning capacity unreliable. Furthermore, the evidence adduced at trial was legally and factually sufficient to support the jury's finding that Tyson's negligence proximately caused Guzman's injuries.

Accordingly, the trial court's judgment is affirmed.

SAM GRIFFITH

Justice

Opinion delivered July 31, 2003.

Panel consisted of Worthen, C.J., Griffith, J. and Ramey, Jr., Retired Chief Justice, Twelfth Court of Appeals, sitting by assignment.

 
(PUBLISH)

1. In Sure-Tan, the Supreme Court set aside an award of back pay and reinstatement to undocumented alien workers who were not authorized to re-enter this country following their voluntary departure when their employers unlawfully reported them to the Immigration and Naturalization Service in retaliation for union activity. Sure-Tan, 467 U.S. at 903, 104 S. Ct. at 2815. The Court found that the NLRB's authority to select remedies was limited by federal immigration policy as expressed in the Immigration and Nationality Act (INA), and held that in order to avoid a potential conflict with the INA with respect to back pay, the employees must be deemed "unavailable" for work (and the accrual of back pay therefore tolled) during any period when the employees were not "lawfully entitled to be present and employed in the United States." Id., 467 U.S. at 903, 104 S. Ct. at 2815.