      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00536-CV



                                  Idiris Sharif Hassan, Appellant

                                                    v.

                                      Robert L. Rock, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
     NO. D-1-GN-11-003118, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                              MEMORANDUM OPINION


                In this personal injury case, appellant Idiris Sharif Hassan appeals from the trial court’s

judgment awarding him $212,136.64 in damages along with pre-judgment and post-judgment

interest and court costs. In two issues on appeal, Hassan challenges the trial court’s decision to reduce

the damages award by Hassan’s percentage of responsibility. We will affirm the trial court’s judgment.


                                           BACKGROUND

                Undisputed evidence at trial showed that appellee Robert L. Rock hired Hassan as

a day laborer to help clear brush from a vacant lot belonging to Rock’s friend, Linda Stone. Rock

operated a Bobcat skid-steer loader to clear brush. While Rock sat at the controls inside the Bobcat,

Hassan crouched underneath the Bobcat’s bucket. The bucket fell onto Hassan, injuring him.

Hassan sued Rock for negligence and gross negligence.
                At the charge conference at trial, Hassan objected to the submission of proportionate-

responsibility jury questions, arguing that proportionate responsibility did not apply to this case

because Rock was Hassan’s employer and did not subscribe to workers’ compensation insurance.

See Tex. Lab. Code § 406.033(a)(1). The trial court overruled Hassan’s objections and submitted

the questions to the jury. The jury answered that both Rock’s and Hassan’s negligence proximately

caused Hassan’s injury and attributed 57% responsibility to Rock and 43% to Hassan. Hassan

then filed a motion to disregard the jury’s answers to the proportionate-responsibility questions. The

trial court denied Hassan’s motion and rendered judgment reducing Hassan’s damages award by

43%, and Hassan appealed.


                                           DISCUSSION

                Notwithstanding a trial court’s broad discretion in submitting jury questions, parties

are entitled to have requested questions on controlling issues of fact submitted to the jury, so long

as the issue is properly pleaded and supported by some evidence. Tex. R. Civ. P. 278; City of The

Colony v. North Tex. Mun. Water Dist., 272 S.W.3d 699, 746 (Tex. App.—Fort Worth 2008, pet.

dism’d) (citing Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992)); Rosell v. Central W. Motor

Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002, pet. denied). In this case, Hassan does

not argue that the issue of proportionate responsibility was not properly pleaded by Rock or that the

evidence is legally insufficient to support this defense. Instead, Hassan argues that the trial court

abused its discretion in submitting any questions on this issue to the jury because the defense is

statutorily barred as a matter of law by the Texas Workers’ Compensation Act (the Act). Similarly,

Hassan argues that the trial court erred in refusing to disregard the jury’s findings regarding Hassan’s

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negligence and his percentage of responsibility. Specifically, Hassan contends that any claim by

Rock of common-law contributory negligence or statutory comparative responsibility in this case

is barred by section 406.033 of the Act, which provides the following:


       In an action against an employer by or on behalf of an employee who is not covered
       by workers’ compensation insurance obtained in the manner authorized by
       Section 406.003 to recover damages for personal injuries or death sustained by an
       employee in the course and scope of the employment, it is not a defense that . . . the
       employee was guilty of contributory negligence . . . .


Tex. Lab. Code § 406.033(a)(1); see Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex. 2000) (“[B]y

expressly precluding employers from relying on common-law contributory negligence, section 406.033

effectively prohibits an employer from relying on the statutory comparative-responsibility defense.”);

see also Tex. Civ. Prac. & Rem. Code §§ 33.001–.017 (proportionate-responsibility statute).

               In response, Rock argues that the trial court did not abuse its discretion in overruling

Hassan’s objection to the jury questions on the issue of proportionate responsibility because Hassan

never pleaded that he was seeking protection under the Act based on Rock’s nonsubscriber status.

In addition, Rock asserts that (1) Hassan failed to establish that he is entitled to the protections of

section 406.033 because he is not an “employee” as defined in the Act, and (2) even if Hassan could

establish that he is an “employee” as defined in the Act, Hassan is not entitled to the protections of

section 406.033 because his employment was “incidental to a personal residence,” and therefore is

subject to exclusion under section 406.091(a)(1) of the Act.

               In determining whether the trial court abused its discretion in overruling Hassan’s

objection to the submission of questions regarding his proportionate responsibility, we will assume,


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without deciding, that Hassan was not required to plead that section 406.033 prevented Rock

from asserting a proportionate-responsibility defense. Therefore, we first examine whether Hassan

established his status as an “employee” under the Act as a matter of law.1 The Act defines “employee”

as “each person in the service of another under a contract of hire, whether express or implied, or oral

or written.” Tex. Lab. Code § 401.012(a). However, the Act expressly excludes certain persons

from the definition of “employee,” including “a person whose employment is not in the usual course

and scope of the employer’s business.” Id. § 401.012(c)(2).2

                The evidence at trial indicates that Hassan was not employed “in the usual course

and scope of [Rock’s] business,” and as a result, Hassan failed to conclusively establish that he

was an “employee” under the Act. See id. Rock testified that he is a retired eye doctor, and no

evidence suggests that he operated a brush-clearing business. See Black’s Law Dictionary 239



        1
          Hassan did not request the submission of any questions that, if answered affirmatively by
the jury, would establish that Hassan’s claims against Rock were entitled to the protections of
section 406.033. As a result, the issue of whether the trial court abused its discretion in submitting
Rock’s defense of proportionate responsibility and, likewise, the issue of whether the trial court
erred in subsequently refusing to disregard the jury’s answers to those questions, turns on whether
Hassan established as a matter of law that (1) Rock did not subscribe to worker’s compensation
insurance, (2) Hassan was his employee, and (3) Hassan seeks to recover for injuries sustained in the
course and scope of employment. See Tex. Lab. Code § 406.033(a)(1); see also Tex. R. Civ. P. 279
(“Upon appeal all independent grounds of recovery or of defense not conclusively established under
the evidence and no element of which is submitted or requested are waived.”).
        2
          To the extent Hassan’s arguments on appeal turn on the proper construction of the statutory
definition of “employee,” this is a question of law that we review de novo. See Cruz v. Andrews
Restoration, Inc., 364 S.W.3d 817, 825 (Tex. 2012). When construing a statute, our primary
objective is to ascertain and give effect to the legislature’s intent. First Am. Title Ins. Co. v. Combs,
258 S.W.3d 627, 631 (Tex. 2008). We consider the statute as a whole, reading each word in context
rather than isolation, and unless a different definition is supplied by the legislature, we assume the
words chosen have their plain and ordinary meaning. See City of Rockwall v. Hughes, 246 S.W.3d
621, 625–26 (Tex. 2008).

                                                   4
(10th ed. 2014) (defining “business” as “a commercial enterprise carried on for profit; a particular

occupation or employment habitually engaged in for livelihood or gain”). Rock hired Hassan to

help him clear a vacant lot for his friend Stone, and there is no evidence that Rock expected payment

from Stone or anyone else for this personal favor. Moreover, there is no evidence in the record that

Rock had ever received any income from clearing brush. The fact that Rock had spent many hours

operating a Bobcat on his own property and hired many laborers to help him does not indicate

that brush-clearing was anything more than a hobby.3 See Barlow v. Anderson, 346 S.W.2d 632,

636 (Tex. Civ. App.—Amarillo 1961, writ ref’d n.r.e.) (concluding that plaintiff was not an

“employee” under Workmen’s Compensation Act because defendant’s “operation in connection

with the horses was never intended as a trade, business, occupation or profession, was not being

operated with any intention of making a profit, and was simply a very expensive hobby operated

for [defendant’s] pleasure”).

               Hassan argues that the work he performed for Rock was “in or about the furtherance

of [Rock’s] affairs” and was therefore in the “course and scope” of Hassan’s employment. See


       3
          Although Rock admitted at trial that Hassan was “on the job” and was in the course and
scope of his employment when he was injured, this testimony does not establish as a matter of law
that Rock was engaged in a business and that Hassan was employed in the usual course and scope
of that business when injured. Compare Tex. Lab. Code § 406.033(a)(1) (providing that employee’s
claims against nonsubscribers for injuries sustained “in the course and scope of the employment” are
not subject to defense of proportionate liability) with id. § 401.012(c)(2) (providing that “employee”
under the Act does not include employment “not in the usual course and scope of the employer’s
business”) (emphases added).

        We do not suggest that a person’s habitual activities, performed with no expectation of
payment, could never constitute a “business” under the Act; rather our conclusion is that, based on
the circumstances presented and the record before us, Hassan did not establish his status as an
“employee” in Rock’s alleged brush-clearing “business” as a matter of law.

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Tex. Lab. Code § 401.011(12). According to Hassan, “affairs” is a broad term encompassing the

work Rock was performing as a favor to Stone. However, the term “affairs” occurs in the Act’s

definition of “course and scope of employment,” id. (emphasis added), while section 401.012(c)(2)

refers to “employment [that] is not in the usual course and scope of the employer’s business.” Id.

§ 401.012(c)(2) (emphasis added). Therefore, even if we accept Hassan’s broad reading of “affairs,”

we still conclude that section 401.012(c)(2) excludes him from the definition of “employee” because

the work he performed was not connected to any “business.”4

               We conclude that Hassan failed to establish as a matter of law that his claims against

Rock were entitled to the protections of section 406.033 of the Act. Therefore, the trial court did not

abuse its discretion in overruling Hassan’s objection to the proportionate-responsibility questions.

Similarly, the trial court did not err in denying Hassan’s motion to disregard the jury’s answers or

in reducing Hassan’s damages award relative to Hassan’s percentage of responsibility as assigned

by the jury. Accordingly, we overrule Hassan’s issues on appeal.


                                          CONCLUSION

               We affirm the judgment of the trial court.




       4
         Having concluded that Hassan failed to establish his status as an “employee” entitled to the
protections of section 406.033 of the Act, we need not consider whether Hassan’s employment is
otherwise excluded from the Act’s coverage under section 406.091(a)(1). See Tex. Lab. Code
§ 406.091(a)(1) (providing that “employees are not subject to [the Act]” if, among other things, they
are “employed as a domestic worker or a casual worker engaged in employment incidental to a
personal residence”).

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                                              __________________________________________

                                              Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: April 10, 2015




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