Luis Alvizo, Individually, and Margarita Alvizo, Individually and as Next Friend of Luis Alvizo, Jr., Armand Alvizo, and Jose Miguel Alvizo v. Alamo Iron Works, Inc.; Structural Metals, Inc.; The State of Texas; and Texas Department of Transportation--Appeal from 73rd Judicial District Court of Bexar County

No. 04-96-00136-CV
Luis ALVIZO, Individually, and Margaret Alvizo, Individually and as Next Friend

of Luis Alvizo, Jr.; Armando Alvizo, and Jose Miguel Alvizo, Minors,
Appellants
v.
ALAMO IRON WORKS, INC.; Structural Metals, Inc.;

the State of Texas; and the Texas Department of Transportation,
Appellees
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 94-CI-07531
Honorable Andy Mireles, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 7, 1998

AFFIRMED

Luis Alvizo, individually, and his former wife, Margarita Alvizo, individually and as next friend of their minor children, appeal the trial court's take-nothing judgment against them in their suit for damages arising out of Alvizo's on-the-job injury. We affirm.

Factual and Procedural Background

Luis Alvizo, an employee of Austin Bridge Company, was instructed by his supervisor to relieve a co-worker who was straightening reinforcement steel rods (rebar) in an elevated section of Interstate 35 that was under construction in downtown San Antonio. According to Alvizo, the rebar broke, and he was knocked off balance. As a result of his fall off the elevated section of the highway, Alvizo was paralyzed from the waist down. After the accident, Alvizo and his former wife, Margarita Alvizo, sued:

1. Austin Bridge Company, Alvizo's employer, because it "knew that injury was certain or believed with substantial certainty that injury would result from grossly unsafe conditions present at the construction site ..., yet it required [Alvizo] to continue to work in the patently unsafe conditions";

2. Structural Metals, Inc., the alleged manufacturer of the rebar, for strict liability, product liability, and negligence; and

3. the State of Texas, the owner or prospective owner of the highway, and its agent, the Texas Department of Transportation, for negligence.

The Alvizos also sued Alamo Iron Works, Inc.; Huntingdon Engineering and Environmental, Inc.; and Southwestern Laboratories, Inc. However, these defendants were granted summary judgments before trial.

Trial was to a jury. However, after the Alvizos rested, the trial court directed a verdict against them on their intentional tort claim against Austin Bridge Company and their strict liability and product liability claims against Structural Metals. The Alvizos' negligence claims against the State and Structural Metals were then submitted to the jury, which found Alvizo's own negligence was the sole proximate cause of his accident. In accordance with its rulings and the jury's verdict, the trial court rendered a final take-nothing judgment against the Alvizos.

Austin Bridge Company

In their first point of error, the Alvizos contend the trial court erred in directing a verdict against them on their claim against Austin Bridge Company because there was sufficient circumstantial evidence from which the jury could find in their favor. We disagree.

Standard of Review

We review the trial court's directed verdict under the familiar no-evidence standard. See, e.g., S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996); see generally W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L.J. 351, 444-45 (1998).

Discussion

"The Texas Workers' Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury." Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985). An intentional injury occurs when "the actor desires to cause the consequences of his act" or "believes that the consequences are substantially certain to result from it." Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex. 1989) (quoting Restatement (Second) of Torts 8A (1965)). Accordingly, unless "the employer believes his conduct is substantially certain to cause the injury," "the intentional failure to provide a safe workplace," "the intentional violation of a safety regulation," and the "intentional failure to train an employee to perform a dangerous task" do not constitute intentional injuries. Reed Tool, 689 S.W.2d at 406-07; Rodriguez, 763 S.W.2d at 412. Therefore, to survive Austin Bridge Company's motion for directed verdict, the Alvizos were required to introduce either (1) direct evidence that Austin Bridge Company desired to cause Alvizo's injuries or believed they were substantially certain to result from its conduct(1) or (2) sufficient circumstantial evidence from which this intent could be inferred.(2)

The Alvizos argue they met this burden with evidence that the wrong type of rebar was used in construction and Austin Bridge Company knew the rebar had been breaking. However, the Alvizos' own expert testified the rebar was an acceptable type for the project, although not his preference; and the only evidence regarding broken rebar came from Alvizo's older brother, who testified he was aware of only four pieces of rebar breaking out of hundreds.

The Alvizos also argue the jury could have inferred an intent to injure from proof that Alvizo was not wearing a safety belt at the time he fell because his employer had not provided one despite his prior requests and, in any event, wearing a safety belt to perform the task he was instructed to do was impractical or impossible. Again, however, the record does not support the Alvizos' assertion. Rather, Alvizo's own testimony establishes that he had been issued two safety belts; he had access to and had worn a safety belt on numerous occasions, including the day before his accident; and it crossed his mind to put a safety belt on just before his accident, but he decided not to do so. The Alvizos also argue they met their burden with proof that OSHA regulations required a safety net because he was working more than twenty-five feet off the ground. However, the Alvizos' expert testified Alvizo was working less than twenty-five feet above the ground.

Finally, the Alvizos cite Alvizo's own testimony establishing he was not trained to bend or straighten rebar and had not been required to attend and did not attend his employer's safety meetings. This may be true. But even if we assume the truth of each of the Alvizos' assertions, they do not establish an intent to injure. See Reed Tool, 689 S.W.2d at 406-08. Indeed, the record in this case is substantially weaker than the Reed Tool record, which the supreme court held "might raise a question of fact concerning gross negligence" but did not raise a question of fact regarding an intent to injure. Id. at 408. We therefore hold there is no evidence Austin Bridge Company desired to injure Alvizo or knew with substantial certainty that Alvizo would be injured as a result of its conduct. Therefore, the trial court correctly directed a verdict against the Alvizos on their intentional tort claim against Austin Bridge Company, and we overrule the Alvizos' first point of error.

Structural Metals

In their second point of error, the Alvizos argue the trial court erred in directing a verdict against them on their strict liability claim against Structural Metals because the rebar was not suited for double bending in the field and was therefore defective. We disagree.

Standard of Review

We review the trial court's directed verdict under the familiar no-evidence standard. See, e.g., S.V., 933 S.W.2d at 8; see generally W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L.J. 351, 444-45 (1998).

Discussion

To maintain a strict liability claim, the Alvizos were required to introduce some evidence, whether direct or circumstantial, tending to establish that the rebar was "unreasonably dangerous because of a defect in marketing, design, or manufacturing." American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex. 1997). The record in this case contains no such evidence, as the Alvizos' attorney conceded during the argument on Structural Metals' motion for a directed verdict. Indeed, the Alvizos' own expert testified the type of rebar used in constructing the elevated highway is the most commonly used rebar in bridge construction, and it can be double bent. We therefore overrule the Alvizos' second point of error.

Pretrial Deadlines and Denial of Motion for Continuance

In their third point of error, the Alvizos argue the trial court erred in setting pretrial deadlines they could not possibly have met, thus prejudicing their ability to prepare for trial, and in refusing to grant their motion for continuance. We disagree.

Standard of Review

"The trial court has a duty to schedule its cases in such a manner as to expeditiously dispose of them. For this reason the court is given wide discretion in managing its docket, and we will not interfere with the exercise of that discretion absent a showing of clear abuse." Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982).

Discussion

Alvizo's accident occurred in September 1992, and the Alvizos' initial attorney filed their petition in May 1994. Thereafter, with the approval and agreement of all counsel, the trial court established discovery deadlines and preferentially set the case for trial on May 1, 1995. These discovery deadlines were extended, however, and the trial was preferentially reset for October 2, 1995, at the request of the Alvizos' current counsel. This attorney again requested continuances in August and September 1995, but the trial court denied these motions. On October 3, the trial court heard pretrial motions, the attorneys conducted voir dire, and the Alvizos began to present their evidence. The three remaining defendants presented their evidence on October 5 and 6, and the jury returned its verdict on October 6.

The record does not demonstrate an abuse of discretion. The Alvizos were afforded eighteen months to prepare their case and ample notice of reasonable discovery deadlines and preferential trial settings. See Atchley v. Spurgeon, 964 S.W.2d 169, 181 (Tex. App.--San Antonio 1998, no pet. h.) (noting supreme court time standard of eighteen months from appearance date to disposition). We therefore overrule the Alvizos' third point of error and affirm the judgment..

Sarah B. Duncan, Justice

Do not publish

1. See Rodriguez, 763 S.W.2d at 413 (expert affidavit testimony established both that employee's supervisor would be substantially certain that blowout would occur and that blowout would cause truck to go out of control if it were in the condition described by the injured employee); Feazell v. Mesa Airlines, Inc., 917 S.W.2d 895, 901 (Tex. App.--Fort Worth 1996, writ denied) (expert affidavit testimony established airline's management practices were substantially certain to result in injury or death to pilot); Kielwein v. Gulf Nuclear, Inc., 783 S.W.2d 746, 747-48 (Tex. App.--Houston [14th Dist.] 1990, no writ) (expert affidavit testimony that employer's conduct was substantially certain to cause injury, and it was impossible for employer to have been unaware of this risk).

2. See and compare Rodriguez, 763 S.W.2d at 412 (employee advised his supervisor about the appearance of the tires on the truck he was instructed to drive, i.e., they "had no tread and were cracked," and "[t]he inner tube was visible," but supervisor instructed him to take that truck or walk; after first blowout, employee advised another supervisor it was illegal to drive without all six tires, and this supervisor instructed him to continue driving until he could obtain a new tire); Kielwein, 783 S.W.2d at 747 (employee instructed to decontaminate area in which highly radioactive isotopes were spilled "asked for but was not provided certain safety equipment"), with Reed Tool, 689 S.W.2d at 407-08 (summary judgment record failed to raise issue of fact regarding intent to injure even though it established that lathe that injured employee was called "jaws," some employees did not want to operate it, other employees had been injured, albeit less severely, while attempting to operate lathe, and employees were sometimes required to work twelve-hour shifts, seven days a week).

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