                            NUMBER 13-14-00377-CV

                               COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


UNITED SCAFFOLDING, INC.,                                                        Appellant,

                                              v.

JAMES LEVINE,                                                                     Appellee.


                    On appeal from the 172nd District Court
                         of Jefferson County, Texas.


                            MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Longoria
                Memorandum Opinion by Justice Rodriguez
       Appellant United Scaffolding, Inc. (USI) raises two issues on appeal (1) asserting

that there was charge error in the submission of a general negligence claim as opposed

to a claim for premises liability, and (2) challenging the trial court’s order granting appellee
James Levine’s motion for new trial.1 We affirm.

                                        I.       BACKGROUND

        In a day where civil cases rarely make it to trial, this case has proven the

exception—twice.        Many of the underlying facts are undisputed.                   Valero Energy

Corporation (Valero) owns and operates a refinery in Port Arthur, Texas.                       USI is a

contractor that provides scaffolding for Valero at its Port Arthur location. Levine, a Valero

employee, worked at the refinery as a pipefitter.                On December 26, 2005, Levine

attempted to perform a task at the Valero facility that required the use of a scaffold

provided by USI.

        According to OSHA requirements, a “competent person” must inspect the

scaffolding before any work can be performed on any given day. USI contends that

pursuant to its agreement with Valero, Valero is required to notify USI of its intent to use

a USI scaffold, following which a USI employee qualified as a “competent person” is to

inspect the structure as required by OSHA and Valero. However, Valero did not notify

USI of its intent to use the subject scaffold on December 26, 2005, and no USI employee

inspected the scaffold before its use. Levine testified that he checked the scaffold “tag”

before he began work, and the tag indicated that the scaffold had been inspected that

day.2 While on the scaffold, Levine stepped on a piece of plywood that was not nailed

down. The plywood slid, and Levine fell through a hole on the floor of the scaffold but



        1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through Ch. 46, 2015 R.S.).

        2 As per Valero policy, there was a document attached to the scaffold that indicated when the last

inspection had occurred and who performed the inspection. Neither Valero nor USI preserved the tag as
evidence, and the identity of the last person to inspect the scaffold is unknown.
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was able to catch himself with his arms. Levine allegedly suffered injury as a result of

his fall.

        Levine filed suit against USI on negligence and premises liability grounds. The

case was first tried before a jury in December of 2008. A general negligence question

was submitted to the jury, and the jury found USI negligent. The jury determined that

USI was 51% negligent and Levine was 49% negligent and awarded Levine $178,000 in

damages for future medical expenses. The jury entered findings of zero damages for

Levine’s other damage claims, including his claims for past medical expenses, past pain

and suffering, and past and future mental anguish.

        Levine filed a motion for new trial asserting that the jury’s findings of zero damages

as to all but future medical expenses were against the great weight and preponderance

of the evidence. The trial court agreed and granted Levine’s motion for new trial. USI

filed a petition for writ of mandamus with the Ninth Court of Appeals alleging that the trial

court abused its discretion in granting a new trial, which was denied. Upon further

review, the Texas Supreme Court agreed with USI and conditionally granted the writ,

directing the trial court to provide the specific bases for its order granting the new trial. 3

The trial court amended its order.          USI again filed a petition for writ of mandamus

asserting that the trial court’s amended order failed to comply with the Texas Supreme

Court’s instruction. This petition for writ of mandamus also went to the Texas Supreme

Court and the court again conditionally granted the writ.4 The trial court entered a second



         3 That proceeding can be located at In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010)

(orig. proceeding).
        4  That proceeding can be located at In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012)
(orig. proceeding).
                                                  3
amended order granting Levine’s new trial.5 USI did not file a third petition for writ of

mandamus.

         The case was tried for the second time in February of 2014. The jury again found

USI negligent, but this time determined that Levine was not contributorily negligent and

assessed damages of over $1,920,000 for Levine. The trial court entered judgment on

the verdict, and this appeal followed.

                        II.     PREMISES DEFECT V. GENERAL NEGLIGENCE

          By its first issue, USI contends that the court’s charge erroneously submitted a

negligence question instead of a premises liability question. In response, Levine asserts

that USI waived any alleged charge error for failure to object to the charge before it was

submitted to the jury. Levine further responds that his negligence claims against USI

were appropriate because USI did not have control of the premises when his injury

occurred. Assuming without deciding that the issue is properly preserved, we agree with

Levine that the negligence question was appropriate.

         Whether a condition is a premises defect is a legal question. City of San Antonio

v. Parra, 185 S.W.3d 61, 63 (Tex. App.—San Antonio 2005, no pet.) (citing Tex. Dep’t of

Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex.2002)). We review legal questions de

novo. Reliance Nat. Indem. Co. v. Advanced Temporaries, Inc., 227 S.W.3d 46, 50 (Tex.

2007).

         It is well recognized that a negligence finding is not sufficient if the case is one of



        5 We note that the Texas Supreme Court had not yet expanded the scope of appellate review to

include a review of the merits when the trial court signed its second amended order granting Levine’s motion
for new trial on November 2, 2012. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 759 (Tex.
2013) (orig. proceeding)
                                                     4
premises defect. See Clayton W. Williams, Jr., Inc. v. Olivio, 952 S.W.2d 523, 528–29

(Tex. 1997). Premises liability and negligence are two distinct theories of liability and

involve different elements to be proven. See id; City of San Antonio v. Parra, 185 S.W.3d

61, 63 (Tex. App.—San Antonio 2005, no pet.) The difference between the two is long

established and well defined—injury by an ongoing activity is ordinary negligence where

injury by a hazardous condition constitutes premises liability. See Keetch v. Kroger Co.,

845 S.W.2d 262, 264 (Tex. 1992); H.E. Butt Grocery Co. v. Warner, 845 S.W.2d, 258,

259 (Tex. 1992).

       Traditionally, premises defect cases have applied strict liability to hold a possessor

of land liable for physical harm caused to invitees by a condition on the land if, but only if

the landowner:

       (a) knows or by the exercise of reasonable care would discover the
           condition, and should realize that it involves an unreasonable risk of
           harm to such invitees, and

       (b) should expect that they will not discover or realize the danger, or will
           fail to protect themselves against it, and

       (c) fails to exercise reasonable care to protect them against the danger.

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983). A defendant other

than a landowner can be held responsible based on the same standards as the landowner

if the defendant controls the premises. Thornhill v. Ronnie’s I-45 Truck Stop, 944 S.W.2d

780, 788 (Tex. App.—Beaumont 1997, writ dism’d by agr.). Control in this context is

defined as “the power or authority to manage, direct, superintend, restrict, regulate,

govern, administer, or oversee.” County of Cameron v. Brown, 80 S.W.3d 549, 553 (Tex.

2002) In addressing the issue of control, the supreme court has held that “a premises

liability defendant may be held liable for a dangerous condition on the property if it
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‘assumed control over and responsibility for the premises,’ even if it did not own or

physically occupy the property.     Id.   “The relevant inquiry is whether the defendant

assumed sufficient control over the part of the premises that presented the alleged danger

so that the defendant has the responsibility to remedy it.” Id.

       Both parties agree that a determination of “control” is central to our analysis of this

issue and further agree that “control means the authority to manage, direct, superintend,

restrict, regulate, govern, administer, or oversee.”      See id.   USI’s argument that it

controlled the premises and that, therefore, a general negligence question was improper

is based, in part, on the fact that it owned the scaffold in question, its relationship with

Valero was a continuing one, and it was contractually obligated to inspect its scaffolds

upon request. However, USI failed to direct this Court to any contractual provision that

stated that USI was the only entity able to provide a “competent person” to inspect the

subject scaffolds before work could be done, and the testimony at trial did not support

USI’s position that only a USI “competent person” could inspect the scaffold or that USI

had control of the scaffold on the day of the incident.

       Our review of the evidence shows that on December 26, 2005, Valero—not USI—

maintained “control,” as set forth in Brown, because it had the power and authority to

manage, direct, superintend, regulate, and oversee the subject scaffold. See id. A

Valero supervisor was present and overseeing the operations requiring the use of the

scaffold by two Valero employees, one of which was Levine. Levine and his co-worker

followed Valero scaffold policy as opposed to USI scaffold policy as evidenced by the fact




                                              6
that they were not wearing fall protection as required by USI’s policy.6 USI also followed

Valero’s policy and procedures in the construction and maintenance of the scaffold,

performed scaffold inspections upon Valero’s request, and followed Valero’s “tagging”

procedure to notate the scaffold’s inspection status and to identify any dangerous

conditions.

       In addition, though USI might have owned the scaffold, based on the above factors

and testimony elicited at trial, USI was not “responsible” for the scaffold on the day of the

incident because the scaffold was not under USI’s control. USI’s Valero site safety

coordinator, Kenneth P. Broussard Jr., testified on direct examination as follows:

       Question:     Other than United Scaffolding, who wasn’t there, who else at
                     Valero had competent people that could inspect the scaffold?

       Answer:       Valero.

       Question:     If Valero went to this scaffolding on the backside of the
                     exchanger and inspected that scaffolding, whose scaffolding
                     does that become?

       Answer:       Not ours because we didn’t inspect it.

       Question:     Does that become a Valero scaffold?

       Answer:       The responsibility, yes.

Not only does Broussard’s response clearly indicate that Valero was capable of inspecting

the subject scaffolding, but Broussard also directly stated that Valero potentially bore

responsibility for the scaffold in question, negating USI’s position that it solely controlled

the premises.

       Because the relevant inquiry in determining whether a claim sounds in general



       6USI would have required employees to wear “fall protection.”   Valero did not require its
employees to wear fall protection on the scaffold at issue.
                                                7
negligence or premises defect is “whether the defendant assumed sufficient control over

the part of the premises that presented the alleged danger so that the defendant has the

responsibility to remedy it”—we determine that USI did not have a level of control

sufficient to establish a premises defect claim.     See Brown, 80 S.W.3d at 553. As

Levine’s claim was for negligence and was not one of premises defect, the negligence

question submitted to the jury was proper. We therefore determine there was no error

in the charge warranting reversal. We overrule USI’s first issue.

                              III.   MOTION FOR NEW TRIAL

       By its second issue, USI contends that the trial court abused its discretion when it

granted Levine’s motion for new trial. Specifically, USI contends that there was sufficient

evidence supporting each jury finding and the trial court “invaded the province of the jury”

by granting Levine a new trial. Levine contends that the trial court’s grant of his motion

for new trial is not properly before this Court because a merits-based review is appropriate

only via petition for writ of mandamus. In the alternative, Levine argues that the trial

court did not abuse its discretion in finding that the jury’s damage findings were against

the great weight and preponderance of the evidence and granting a new trial.

       USI urges this Court to apply a merits-based review of the trial court’s order

granting a new trial in the context of appellate review of a final judgment. However, there

are limited exceptions to the general rule that an order granting a motion for new trial

rendered within the period of the trial court's plenary power is not reviewable on appeal,

either by direct appeal from the order or from a final judgment rendered after later

proceedings. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.

2005); Hull v. South Coast Catamarans, 365 S.W.3d 35, 40 (Tex. App.—Houston [1st

                                             8
Dist.] 2011, pet. denied); Pagare v. Pagare, 344 S.W.3d 575, 583 (Tex. App.—Dallas

2011, pet. denied). There are three recognized instances in which a Texas appellate

court has overturned a trial court's grant of a new trial: (1) when the trial court's order

was wholly void; (2) when the trial court specifically based its new trial order on an

irreconcilable conflict in answers to jury questions and the answers were not in conflict;

and (3) when the trial court did not specifically state its reasons for granting a new trial.

See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 209, 213

(Tex. 2009); Wilkins, 160 S.W.3d at 563; Hull, 365 S.W.3d at 40–41.

        Though the Texas Supreme Court has recently expanded the scope of appellate

review of an order granting a motion for new trial via mandamus, we do not find that its

holdings permit direct appeal of an order granting a new trial once the order has merged

into a final judgment. See In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 759

(Tex. 2013) (orig. proceeding) (“[T]he reasons articulated in a new trial order are subject

to merits-based mandamus review.”) (emphasis added) In re Columbia Med. Ctr., 290

S.W.3d at 209;; see also Kirk v. State, 454 S.W.3d 511, 515–16 (Tex. Crim. App. Mar.

25, 2015) (Alcala, J., concurring) (citing In re Columbia Med. Ctr. and recognizing that in

the civil context an order granting a new trial cannot generally be appealed). Therefore,

because USI does not contend on appeal that the order granting a new trial fell into one

of the recognized exceptions above, it is not subject to appellate review via direct appeal.7



        7   The trial court granted Levine’s motion for new trial before the supreme court handed down In
re Toyota, which allowed merits-based mandamus review of orders granting a new trial. See In re Toyota,
407 S.W.3d 746, 759 (Tex. 2013) (orig. proceeding). Based on our review of the record from the first trial,
we note that the trial court in this case was within its discretion, on at least one ground, in granting a new
trial because the jury’s award of zero damages for past medical expenses was against the great weight and
preponderance of the evidence. See In re Lufkin Indus., Inc., 317 S.W.3d 516, 520–21 (Tex. App.—
Texarkana 2010, orig. proceeding).
                                                      9
See Wilkins, 160 S.W.3d at 563. We do not reach USI’s second issue.

                                   IV.     CONCLUSION

       We affirm the judgment of the trial court.


                                                         NELDA V. RODRIGUEZ
                                                         Justice

Delivered and filed the 1st
day of September, 2015.




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