LUCIANO ISLAS v. CENTRAL READY MIX CONCRETE--Appeal from 206th District Court of Hidalgo County

NUMBER 13-03-099-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

LUCIANO ISLAS, Appellant,

v.

CENTRAL READY MIX CONCRETE, Appellee.

On appeal from the 206th District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Yanez and Castillo

Opinion by Chief Justice Valdez

Appellant, Luciano Islas, sued appellee, Central Ready Mix Concrete Company, and others // for injuries and damages he suffered while exiting the drum of a cement truck. The jury rendered a verdict in favor of Islas and found twenty percent of the negligence was attributable to Central Ready Mix. The jury awarded Islas $290,000 in damages plus pre-judgment interest. On Central Ready Mix s motion, the trial court granted Central Ready Mix a judgment notwithstanding the verdict and entered a take-nothing judgment. Islas appeals from this judgment. We reverse and render.

I. FACTUAL AND PROCEDURAL HISTORY

Central Ready Mix owns and operates about thirty ready-mix cement trucks. A ready-mix cement truck has a motor-driven rotating drum on its back that allows the delivery of pre-mixed concrete slurry. The drums of these trucks must be periodically cleaned and inspected. The cleaning process entails one or two workers entering the drum with a jackhammer or similar tool to break off dried concrete from the blades or interior of the drum. The workers dump the debris generated throughout the process by exiting the drum and rotating it.

According to the owner of Central Ready Mix, this cleaning process is a very dangerous activity. The primary hazards arise from the potential for the truck s components, particularly the drum, to move unexpectedly, as well as the risk of injury occurring while the workers enter and exit the drum through the small access hatch on the side of the drum. To prevent the drum from rotating and causing injury, chains and blocks should be used to secure the drum in a single position, and the truck should be turned off with the ignition key placed in a safe location, typically the pocket of the worker entering the drum.

Central Ready Mix used its own staff to clean out the drums until it made the decision to contract with an outside company to perform the service. This decision was made based on the recommendation of the Occupational Safety and Health Consultation Program (OSHCON), a division of the Texas Workers Compensation Commission. Central Ready Mix then employed Eugene Taylor d/b/a Major Concrete Equipment Company to clean out the drums of its cement trucks. Taylor was a close personal friend and former employee of Central Ready Mix.

The owner and operator of Central Ready Mix did not inquire whether Taylor had any experience or knowledge of the risks inherent with cleaning drums on cement trucks. Central Ready Mix also did not inquire whether Taylor would use only personnel familiar with the danger of the work and trained to deal with such danger.

Central Ready Mix did provide Major Concrete Equipment Company with a document called Confined Space in a Ready Mix Drum, which described employees duties before, during, and after entering a ready-mix drum, and illustrated the required lock-out/tag-out procedures implemented for safety. Central Ready Mix did not provide Taylor or his employees with training regarding the procedures outlined in the document or inquire whether Taylor trained his employees on these procedures. Taylor did not have any written policies regarding cleaning the drums.

On January 14, 2000, Taylor and Albert Sandoval, another Major Concrete Equipment Company employee, instructed Islas to assist another coworker, Juan Luis Coronado, in cleaning and servicing one of Central Ready Mix s ready-mix cement trucks. At that time, both Coronado and Islas were employed by Major Concrete Equipment Company. Prior to working for this company, Islas worked mainly as a welder and had never cleaned a ready-mix cement truck. Major Concrete Equipment Company had hired Islas as a welder and did not train either Islas or Coronado regarding safety procedures that should be employed when cleaning out a cement truck drum. Despite this lack of training, Islas occasionally assisted his co-workers in cleaning out drums and, on a few occasions, cleaned out a truck by himself.

On the date in question, Islas and Coronado worked together to clean the drum of Central Ready Mix s truck. No chains or blocks were used to prevent the rotation of the drum during cleaning. At about 3:00 p.m., Coronado exited the drum, entered the cab of the truck, and turned on the truck. When the engine started, the drum began to rotate. Islas, who was in the process of exiting the drum through the small access hatch at the time, was crushed between the drum and the frame of the truck. Coronado turned off the engine and called the foreman, Joe Martinez. Martinez, in an attempt to rotate the drum backwards and free Islas, turned the truck back on, further crushing Islas s body between the drum and the frame. Islas was finally freed from the drum about thirty-five minutes later and airlifted to a hospital. Islas suffered severe injuries as a result of the accident.

In the two years prior to the accident, Major Concrete Equipment Company had cleaned out seventeen concrete drums for Central Ready Mix without incident. The trucks were cleaned on Major Concrete Equipment Company s premises. Cleaning concrete drums was a small part of the company s business.

The jury was asked whether the task of cleaning the interior of a ready-mix concrete drum is an inherently dangerous activity. The jury answered yes. The jury was also asked whether the task was also a peculiar risk. The jury again answered yes. The jury awarded Islas $290,000 plus pre-judgment interest and allocated the negligence of the parties in causing the injury as follows: (1) seventy percent to Taylor d/b/a Major Concrete Equipment Company; (2) twenty percent to Central Ready Mix; and (3) ten percent to Islas.

Central Ready Mix filed a motion to disregard jury findings, motion for judgment notwithstanding the verdict, and motion for entry of judgment. The trial court concluded there is no evidence of probative force to sustain the above-numbered findings of the jury as to [Central Ready Mix] and granted the motions, entering judgment in favor of Central Ready Mix. This appeal followed.

II. ANALYSIS

Islas contends on appeal that the trial court erred in granting Central Ready Mix s motion to disregard jury findings, motion for judgment notwithstanding the verdict, and motion for entry of judgment. Because it is dispositive of this appeal, we address only the trial court s granting of the motion for judgment notwithstanding the verdict.

A trial court may disregard a jury's findings and grant a motion for judgment notwithstanding the verdict when there is no evidence upon which the jury could have based its findings. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990); Walker v. Ricks, 101 S.W.3d 740, 745 (Tex. App. Corpus Christi 2003, no pet.). In other words, a trial court may render a judgment notwithstanding the verdict if a directed verdict would have been proper. Tex. R. Civ. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991).

When reviewing an appeal of a judgment notwithstanding the verdict, this Court employs a two-pronged inquiry. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Walker, 101 S.W.3d at 745. First, we examine the record for evidence supporting the jury finding and ignore all evidence to the contrary. Sterner, 767 S.W.2d at 690. If there is more than a scintilla of competent evidence to support the jury's finding, we will reverse the judgment notwithstanding the verdict. Walker, 101 S.W.3d at 745. The evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Walker, 101 S.W.3d at 745. Appellate courts must consider the evidence and inferences as they tend to support the jury's verdict and not with a view that would tend to support the judgment of the trial court. Mancorp, Inc., 802 S.W.2d at 227-28; Walker, 101 S.W.3d at 745. Second, if the court determines that no evidence supports the finding, it must determine from the record whether the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690. If any evidence of probative force supports a contested issue, the judgment notwithstanding the verdict was improperly granted. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

In this case, the ultimate finding of importance by the jury was its answer to the negligence question: the jury found that the negligence of Central Ready Mix was a proximate cause, in part, of Islas s injuries. According to the jury charge, negligence, when used with respect to the conduct of Central Ready Mix, was defined as failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that the owner or occupier knows about or in the exercise of ordinary care should know about. Ordinary care was defined as that degree of care that would be used by an owner or occupier of ordinary prudence under the same or similar circumstances. Proximate cause was defined as that cause which, in a natural and continuous sequence produces an event, and without which cause such event would not have occurred . . . the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. Central Ready Mix disputed Islas s assertion that its acts were a proximate cause of Islas s injuries and that it had a duty to Islas to avoid causing harm.

Central Ready Mix focused on the foreseeability element of proximate cause. The foreseeability component of proximate cause demands proof that Central Ready Mix reasonably should have anticipated the danger to others created by its conduct. Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 477 (Tex. 1995). In the context of proximate cause, foreseeability requires only the general danger to be foreseeable, not the precise sequence of events that produced the harm. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Central Ready Mix also argued it had no duty with respect to Islas. With respect to existing dangers or defects, an owner or occupier has a duty to inspect the premises and warn independent contractors of concealed hazards the owner knows or should have known about. Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004). Furthermore, an owner or occupier who is aware that an independent contractor is not adhering to safety guidelines may have a duty to require corrective measures to be taken or to cancel the contract. See Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998) (per curiam); see also Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex. 1985) (per curiam) (holding general contractor liable when it knew of ongoing violation of specific contractual safety provision).

Here, Central Ready Mix employed Taylor to clean out the drums of its ready-mix trucks. Central Ready Mix had decided to outsource the cleaning of its drums after an inspection and recommendation to do so by a government workplace safety agency. Central Ready Mix s safety director testified that he had never seen Taylor clean out a drum, nor had he ever asked Taylor whether Taylor knew and understood the lock-out/tag-out procedures involved. The safety director also testified that Taylor had not signed Central Ready Mix s document outlining the lock-out/tag-out safety procedure until December of 1998, despite the fact that his cleaning contract with Central Ready Mix had commenced two months prior.

The owner of Central Ready Mix testified that he had never told Taylor how to clean out the drums, nor did he make any effort to ensure or verify that Taylor would follow the procedures outlined in the safety policy or train his employees to do so. The owner also testified that before cleaning of the drums had been outsourced to Taylor, Central Ready Mix employees had suffered multiple injuries involving mixers: We have had people get their fingers smashed. We have people get their hands scuffed . . . one man lost the tip of his finger when a chute bit him. Central Ready Mix reported nine workplace accidents involving the mixers to the Department of Labor before cleaning of the mixers was outsourced. The owner of Central Ready Mix also testified that if a person was not properly trained regarding safety procedures, cleaning out the truck would be very dangerous.

Thus, there was more than a scintilla of evidence that Central Ready Mix should have foreseen, through its past experience with injuries, that drum-cleaning would be dangerous and that lock-out/tag-out safety measures would be required to alleviate this danger. There is also more than a scintilla of evidence to show that Central Ready Mix knew it was outsourcing a dangerous activity that could result in injury, and therefore had a duty to protect its independent contractors, yet it failed to warn its independent contractor of the hazards it would be facing. See Khan, 138 S.W.3d at 295. Central Ready Mix clearly failed, as was its duty, to avoid increasing the risk of injury to third-parties involved in the cleaning of its drums. See id. at 294.

We conclude that this is more than a scintilla of evidence to support the jury verdict. Reasonable minds, if given these facts, could have arrived at the finding that Central Ready Mix was negligent, in accordance with the definition of negligence presented to the jury, and that this negligence was a proximate cause, at least in part, of Islas s injuries. See Walker, 101 S.W.3d at 745. Therefore, we conclude that the trial court erred in overturning the jury verdict, and granting the judgment notwithstanding the verdict, see Leitch, 935 S.W.2d at 118, and we affirm Islas s issue on appeal.

III. Conclusion

Accordingly, we reverse the judgment of the trial court and render judgment as follows: the verdict reached by the jury will stand, and Central Ready Mix is twenty percent liable for the injuries suffered by Islas.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 24th day of February, 2005.