                                                                          ACCEPTED
                                                                      12-15-00121-CV
                                                         TWELFTH COURT OF APPEALS
                                                                       TYLER, TEXAS
                                                                10/15/2015 9:45:20 PM
                                                                            Pam Estes
                                                                               CLERK

                    No. 12-15-00121-CV
_____________________________________________________________
                                                 FILED IN
                                          12th COURT OF APPEALS
                IN THE COURT OF APPEALS        TYLER, TEXAS
         FOR   THE TWELFTH DISTRICT OF TEXAS
                                          10/15/2015 9:45:20 PM
                      TYLER, TEXAS               PAM ESTES
                                                   Clerk
_____________________________________________________________

        GARRY L. ROLLINS AND CARLA D. ROLLINS,
                       Appellants

                             V.

                   TEXAS COLLEGE AND
      MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
                          Appellees
_____________________________________________________________

              Appeal from Cause No. 13-3353-A
       In the 7th District Court of Smith County, Texas
_____________________________________________________________

                   BRIEF of APPELLANTS
        GARRY L. ROLLINS AND CARLA D. ROLLINS
_____________________________________________________________

                     Sigmon Law, PLLC

                    Ernesto D. Sigmon
                  State Bar No. 24010397
               2929 Allen Parkway, Suite 200
                   Houston, Texas 77019
                 214/395-1546 (Telephone)
                 713/485-6056 (Facsimile)
                    esigmon@esigmon.com

               ORAL ARGUMENT REQUESTED
                       No. 12-15-00121-CV
   _____________________________________________________________

                   IN THE COURT OF APPEALS
             FOR THE TWELFTH DISTRICT OF TEXAS
                          TYLER, TEXAS
   _____________________________________________________________

           GARRY L. ROLLINS AND CARLA D. ROLLINS,
                          Appellants

                                V.

                      TEXAS COLLEGE AND
         MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
                             Appellees
   _____________________________________________________________

            IDENTITY OF THE PARTIES AND COUNSEL
   _____________________________________________________________

APPELLANTS:

Garry L. Rollins

Carla D. Rollins

ATTORNEYS FOR APPELLANTS:

Trial Counsel

Ernesto D. Sigmon
State Bar No. 24010397
SIGMON LAW, PLLC
2929 Allen Parkway, Suite 200
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com


Appellate Counsel

Ernesto D. Sigmon
State Bar No. 24010397
SIGMON LAW, PLLC
416 West Saulnier Street
2929 Allen Parkway, Suite 200
Houston, Texas 77019
214/395-1546 (Telephone)
713/485-6056 (Facsimile)
esigmon@esigmon.com


FIRST APPELLEE:

Texas College

ATTORNEYS FOR APPELLEE, TEXAS COLLEGE

Trial Counsel:

Mr. Trey Yarbrough
YARBROUGH WILCOX GUNTER, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
Telephone: (903) 595-3111
Facsimile: (903) 595-0191

Lead Appellate Counsel:

Greg Smith
Texas Bar No. 18600600
Nolan D. Smith
Texas Bar No. 24075632
RAMEY & FLOCK, P.C.
100 E. Ferguson, Suite 500
Tyler, Texas 75702
Telephone: 903-597-3301
Facsimile: 903-597-2413

Associate Appellate Counsel:

Mr. Trey Yarbrough
YARBROUGH WILCOX GUNTER, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
Fax: 903.595.0191

SECOND APPELLEE:

MPF Investments, LLC, d/b/a "A-1 Rent All"

ATTORNEYS FOR APPELLEE, MPF INVESTMENTS

Trial Counsel:

Todd M. Lonergan
Texas Bar No. 12513700
lonergan@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile

Ryan K. Geddie
Texas Bar No. 24055541
geddie@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile

Lead Appellate Counsel:

Levon G. Hovnatanian
Texas Bar No. 10059825
hovnatanian@mdjwlaw.com
lonergan@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile

Associate Appellate Counsel:

Todd M. Lonergan
Texas Bar No. 12513700
lonergan@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
Ryan K. Geddie
Texas Bar No. 24055541
geddie@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile

TRIAL COURT:

Cause No. 13-3353-A
7th District Court of Smith County, Texas

Honorable Kerry L. Russell, Presiding
                            CONTENTS


INDEX OF AUTHORITIES ...............................................VII


STATEMENT OF THE CASE.............................................. 1


    1. STATEMENT OF PROCEDURAL HISTORY ................. 1




    2. STATEMENT OF JURISDICTION ............................... 5


STATEMENT REGARDING ORAL ARGUMENT ................... 6


ISSUES PRESENTED ........................................................ 7


    1. Whether the Trial Court Erred in Granting the Motion

      for Summary Judgment of Texas College and Its

      Underlying Objections to Evidence. .......................... 7


i
     2. Whether the Trial Court Erred in Granting the Motion

        for Summary Judgment of MPF and Its Underlying

        Objections to Evidence. ........................................... 7


     3. Whether the Trial Court Abused Its Discretion in

        Refusing to Re-Open the Evidence. .......................... 7


STATEMENT OF FACTS ................................................... 8


     1. SUMMARY................................................................ 8


     2. LITIGATION FACTS. ................................................. 8


     3. CASE FACTS .......................................................... 10




ii
SUMMARY OF THE ARGUMENT ..................................... 31


ARGUMENT ................................................................... 32


      1. STANDARD OF REVIEW.......................................... 32




iii
     2. THE TRIAL COURT ERRED IN GRANTING TEXAS

       COLLEGE’S TRADITIONAL AND NO EVIDENCE

       MOTION FOR SUMMARY JUDGMENT..................... 39




         1. Duty and Breach of Duty ................................ 41

            a) Ordinary Care ............................................. 44

            b) Duty to provide assistance .......................... 44

            c) No Duty to Warn ......................................... 45

            d) Negligent Supervision, Negligent Training ... 47

            e) No Duty to Provide Unnecessary Assistance 48

            f) No evidence that the work is unusually

               precarious .................................................. 49

            g) No evidence that the job required specialized

               training ...................................................... 50

            h) No evidence that additional personnel were

               necessary ................................................... 50

            i) No obligation to dissuade ............................ 51

         2. Proximate Cause............................................. 52
iv
           a) Generally .................................................... 52

           b) Medical Causation ...................................... 54



        1. Bracken’s Deposition Excerpts ....................... 58

        2. Owner’s Manual .............................................. 58

        3. Rollins Affidavit ............................................. 59

        4. Barnett Letter ................................................ 60




    3. THE TRIAL COURT ERRED IN GRANTING MPF’S

      MOTION FOR SUMMARY JUDGMENT..................... 64



        1. Duty ............................................................... 65

        2. Breach of duty ................................................ 67

        3. Proximate Cause............................................. 68



        1. Owner’s Manual .............................................. 69

        2. Rollins Affidavit ............................................. 71


v
        3. Thorpe Affidavit ............................................. 72

        4. The ANSI Standard and "Statement of Best

           Practices” ...................................................... 75




CONCLUSION AND PRAYER ........................................... 76


CERTIFICATE OF COMPLIANCE ..................................... 78


CERTIFICATE OF SERVICE............................................ 79




vi
                              INDEX OF AUTHORITIES

      CASES

Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015) ........ 46, 48

City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134

  (Tex. App.—Dallas Sept. 18, 2007, no pet.) ................................ 55

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671

  (Tex.1979) ................................................................................. 32

Cotton Patch Cafe v. McCarty, 2-05-082-CV, 2006 WL 563307 (Tex.

  App.—Fort Worth Mar. 9, 2006, no pet.).................................... 55

Cunningham v. Columbia/St. David's Healthcare System, L.P.,

  185S.W.3d 7 (Tex.App.-Austin 2005) ................................... 73, 74

Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) ........ 75

Dawson v. Briggs, 107 S.W.3d 739 (Tex. App.—Fort Worth 2003, no

  pet.) .......................................................................................... 55

Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.]

  1994, n.w.h.) ....................................................................... 37, 38

Figueroa v. Davis, 318 S.W.3d 53 (Tex. App.—Houston [1st Dist.]

  2010, no pet.) ............................................................................ 55
     vii
Goodwin v. Bluffton Coll., 2004-Ohio-2223 ................................... 65

Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725 (Tex. App.—

  Houston [14th Dist.] 2004) ........................................................ 55

Gutierrez v. Gutierrez, 86 S.W.3d 729 (Tex.App. -El Paso 2002) .... 74

Halliburton Oil Well Cementing Co. v. Groves, 308 S.W.2d 919 (Tex.

  Civ. App. 1957) ......................................................................... 54

Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152 (Tex. App. 2009) . 33

Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ

  dism'd.) ..................................................................................... 64

Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172

  (Tex. 2004) ................................................................................ 60

In re Hawk, 5 S.W.3d 874 (Tex.App.-Houston [14 Dist.] 1999) ...... 64

In re Prot. of H.W., 85 S.W.3d 348 (Tex. App. Tyler 2002) .............. 36

Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006.) ....................... 42

Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000) ............................. 41

Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL 4594098 (Tex.

  App. July 30, 2015) ............................................................. 52, 53

Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d 757

  (Tex. App. 1997) ........................................................................ 65
      viii
Lifestyle Mobile Homes v. Ricks, 653 S.W.2d 602 (Tex. App.-

  Beaumont 1983, writ ref'd n.r.e.)).............................................. 36

McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App.

  1974), writ refused NRE (June 12, 1974) ................................... 49

McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954) abrogated

  by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)) ... 51

McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299 (Tex.Civ.App.

  -Dallas 1968) ............................................................................ 63

Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) ......... 55

Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985) .... 34

Rea v. Cofer, 879 S.W.2d 224 (Tex. App. 1994) ............................. 37

Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972) ............................... 32

Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San

  Antonio 1995) ..................................................................... 67, 76

Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364

  (Tex.App.-Dallas 1984, no writ) ................................................. 63

Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-00290-CV, 2013 WL

  6797871 (Tex. App. Tyler, Dec. 20, 2013), review denied (Aug. 22,

  2014) .................................................................................. 32, 35
      ix
       STATUTES

Tex. Gov't Code Ann. § 22.220 ........................................................ 5

Tex. Labor Code Ann. § 406.033 ................................................... 41


       OTHER AUTHORITIES

ANSI’s STATEMENT OF BEST PRACTICES OF GENERAL TRAINING AND

  FAMILIARIZATION FOR AERIAL WORK PLATFORM EQUIPMENT, February

  2010 ......................................................................................... 75


       RULES

Tex. R. Civ. P. 1 ............................................................................ 64

Tex. R. Civ. P. 193.6(b) ................................................................. 72

Tex. R. Civ. P. 270 ........................................................................ 62

Tex. R. Ev. 201 ............................................................................. 76

Tex. R. Ev. 803(4) ......................................................................... 59

Tex. R. Ev. 901 ............................................................................. 60


       REGULATIONS

A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING

  WORK PLATFORMS ............................................................ 66, 67, 75

       x
       CONSTITUTIONAL PROVISIONS

Tex. Const. art. V, § 6 ..................................................................... 5




       xi
                       STATEMENT OF THE CASE



1.    STATEMENT OF PROCEDURAL HISTORY

      This is a non-subscriber suit for a work related injury.

Plaintiffs/Appellants, Gary Rollins and Carla Rollins filed suit on

December 20, 2013. (CCR 1: 1-5.)1 Appellants shall be referred to

as “Rollins” and “Mrs. Rollins” respectively, and “Mr. and Mrs.

Rollins,” “plaintiffs” or “appellants” collectively).

      SUMMARY JUDGMENT

      Defendant/Appellee, MPF Investments, LLC, d/b/a "A-1 Rent

All" (hereinafter “MPF”) filed a motion for summary judgment on

January 15, 2015. (CCR 2:104–248.) On the very same day defendant

Texas College (hereinafter “TC”) filed a motion for summary



      1  The original clerk’s record (herein cited as “CR”) was missing bookmarks
and was not text searchable. It was also missing certain designated records. As
a result of requests for supplementation and a motion to correct the record, the
trial clerk filed a supplemental record (herein cited as “SR”) and a “corrected”
clerk’s record (herein cited as “CCR”). The “corrected” record was filed with
volumes 2 and 3 containing the same pages, volume 12 completely missing,
certain missing pages and several pages out of order. As a result, it is necessary
to refer to the original record (CR) at times. Since the page numbers in the CR
and the CCR are the same, the court can consult the CCR unless it finds a
necessary page missing, in which case it will have to consult the non-searchable
CR.

                                        1
judgment. (CCR 4:249-5:497.) Mr. and Mrs. Rollins filed a response

to TC’s summary judgment motion on February 4, 2015 (CR 6:815-

22:3234) and a response to MPF’s summary judgment motion on

February 6, 2015. (CR 22:3241 -24:3474.)

     TC filed a summary judgment reply on February 12, 2015 (CCR

21: 3512–3645) and MPF filed a summary judgment reply on

February 13, 2015 (CCR 22:3701–3736).      MPF’s reply included a

series of objections and request to strike plaintiffs’ summary

judgment evidence.

     MOTIONS TO STRIKE

     During the pendency of the summary judgment motions, MFP

and TC filed a joint motion to strike Rollins’ designation of Burt

Thorpe, a safety expert, on January 23, 2015. (CCR 5:508 – 567.)

Appellants filed a response on February 3, 2015. (CCR 6:700 – 746.)

MFP filed a reply on February 9, 2015. (CCR 21: 3475-3484.) Rollins

filed a sur-reply (erroneously titled “reply”) on the same day (CCR

21:3485-3495.)

     On January 26, 2015, MPF and TC also filed a joint motion

requesting that “the reports and any opinions” of Gilbert Martinez,

Joe G. Gonzales, and Thomas M. Roney - a neuropsychologist,

                                2
medical doctor, and economist, respectively.              (CCR 6:568-699.)

Rollins filed a response on February 3, 2015. (CCR 6:747 -7:813.) A

joint reply was filed on February 6, 2015 (CCR 20:3235-3239.)

      On February 13, 2014 TC filed objections and a motion to strike

evidence and references in Rollins’ responses to TC’s motion for

summary judgment. (CCR 22:3666 – 3700.) Rollins filed a response

on February 13, 2015. (CCR 22:3737 – 23:3922.)

      THE FEBRUARY 19 ORDERS

      On February 19, 2015, the trial court issued a series of orders

relating to the summary judgments and the evidence.                  The court

granted the joint motion to strike the designation of Rollins’ liability

expert, Burt Thorpe, (CCR 24:3923). The court also granted nearly

all   of   the   requests   to   strike   portions   of   Rollins’    affidavit.

(CCR 24:3925-3934.)         The court also sustained the objections to

summary judgment evidence set forth in MPF’s summary judgment

reply. (CCR 24:3936-3937.) However, the court denied the joint

motion to strike the reports and opinions of Gilbert Martinez, Joe G.

Gonzales, and Thomas M. Roney. (CCR 24:3924.) Finally, the court

granted TC’s motion for summary judgment (CCR 24:3935), and

granted MPF’s motion for summary judgment (CCR 24:3938).

                                      3
     RECONSIDERATION

     On February 24, 2015 Mr. and Mrs. Rollins filed an emergency

motion to reopen the evidence. (CCR 24:3939 – 4027.) On the same

day Mr. and Mrs. Rollins also filed a motion to reconsider regarding

TCs motion for summary judgment.        (CCR 24:4028 – 4136)     On

March 2, 2015 they also filed a motion to reconsider MPF’s motion

for summary judgment. (SR 10-23).

     On March 9, 2015, TC filed a response to the emergency motion

to reopen the evidence. (CCR 25:4151-4163.) On March 11, 2015,

TC filed a response to the motion to reconsider. (CCR 25: 4164 –

4170.) On March 12, 2015, MPF filed its response to the emergency

motion to reopen the evidence. (CCR 25:4171 – 4176).

     On March 17, 2015, the court below, denied Mr. & Mrs. Rollins’

motion for reconsideration of the TC summary judgment (SR 7), and

also denied their motion to reopen the evidence (SR 8).

     On April 10, the Court below denied Rollins’ motion for

reconsideration of the MPF summary judgment. (CCR 25:4180.)

     A notice of appeal was filed on May 8, 2015. (CCR 25:4181-

4183) The clerk’s record was filed (incorrectly) on June 9, 2015. A

supplemental record was filed on September 2, 2015. A “corrected”

                                 4
record (with significant omissions) was filed on September 15, 2015.

Due to the fact that the trial court held no oral hearings before ruling

to strike the evidence and grant summary judgment, there is no

reporter’s record.

2.   STATEMENT OF JURISDICTION

          This Court has jurisdiction under Tex. Const. art. V, § 6

and Tex. Gov't Code Ann. § 22.220.




                                   5
          STATEMENT REGARDING ORAL ARGUMENT


     No oral argument was had in the court below.          Appellants

believe the lack of oral argument contributed to the erroneous rulings

of the lower court. The orders of dismissal contain no discussion of

the testimony as they relate to the elements of the claims. Also, the

court below has stricken factual statements made in the affidavit of

an unsophisticated lay witness, plaintiff/appellant, Garry Rollins.

They were stricken because the lower court believed they were either

inconsistent with his deposition testimony, or simply beyond his

competence.

     Oral questioning of counsel will be the most effective way for

this Court to extract a detailed and accurate presentation of the

parties’ arguments on consistency (or inconsistency) of the evidence.

Oral argument will thus emphasize and clarify the written

arguments, significantly aiding the decisional process of this Court.




                                  6
                     ISSUES PRESENTED



1.   Whether the Trial Court Erred in Granting the Motion for
     Summary Judgment of Texas College and Its Underlying
     Objections to Evidence.



2.   Whether the Trial Court Erred in Granting the Motion for
     Summary Judgment of MPF and Its Underlying Objections
     to Evidence.



3.   Whether the Trial Court Abused Its Discretion in Refusing
     to Re-Open the Evidence.




                               7
                      STATEMENT OF FACTS



1.   SUMMARY
     Gary Rollins was injured when he “blacked out” and fell during

an attempt to dismount from the platform of a “scissor lift.” Over his

own protest, he had been ordered to “get up there” and patch the

high ceiling of a gymnasium. Defying all common sense, his direct

supervisors ordered him “up there” knowing that he suffered from

a fear of heights and “syncope,” a condition which causes

frequent and unpredictable loss of consciousness. Moreover, he

had not received training or instruction on the use of the lift.

2.   LITIGATION FACTS.

     Despite its simplicity, the case below was hotly contested by

Texas College, a non-subscriber to the workers compensation

system, and TC’s co-defendant. From the beginning the case was

burdened with numerous aggressive filings -- special exceptions,

motions to compel, motions to strike evidence, and motions for

summary judgment. (CCR passim).




                                   8
     Eventually, the case reduced to two (2) summary judgment

motions and a number of supporting motions to strike evidence. On

February 19, 2015 the trial court simultaneously issued orders on

all of the pending motions.

     The court sustained numerous objections to many parts of the

summary     judgment     evidence       (CCR   24:3936-3937.),   expert

designations (CCR 24:3923), and certain parts of Mr. Rollins’ affidavit

(CCR 24:3925-3934.) – which required redaction. However, as will

be shown below, the striking of the various parts of the evidence

was truly inconsequential. What survived, was ample summary

judgment evidence.

     Preserving some significant evidence, the trial court denied

defendants’ request to strike expert reports of certain doctors (CCR

24:3924).   These reports had been incorporated by reference into

appellants’ responses to requests for disclosures.      The disclosure

responses were specifically used as summary judgment evidence.

(CCR 2:109) (See reference to Exhibit “H”).

     Without oral hearing, the trial court granted the motions for

summary judgment.



                                    9
      An attempt was made here to draft this statement using only

information from materials on file and documents referenced by the

parties which were not stricken at the time of the February 19 orders.2

These facts do not contain materials submitted on reconsideration or

on the request to re-open the evidence. These facts were not stricken

and were specifically allowed by trial court when it granted the

summary judgments:

3.    CASE FACTS

      GARY ROLLINS, TEXAS COLLEGE, AND MPF

      Gary Rollins worked “at Texas College as a maintenance Tech

and Supervisor for about six years.” (CCR 25:4131). He is 55 years

old. (CCR 3:234). He supervised a small group of three workers.

(CCR 4:322). He was an “excellent” supervisor, according to one co-




      2 See Chance v. Elliot & Lillian, LLC, 462 S.W.3d 276, 282 (Tex. App. 2015)
(“we may consider all summary judgment evidence not otherwise excluded from
the trial court's consideration.”);; Schronk v. City of Burleson, 387 S.W.3d 692
(Tex. App. 2009) (“Objections to the form of summary-judgment evidence are
preserved for appellate review only if those objections are made and ruled on in
writing by the trial court”);;Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 497-
98 (Tex. App. 2002) (court will not imply exclusion of summary judgment
evidence, absent clear evidence in order). It is understood however, that this
Court is in control and may choose not to consider any matter it deems
appropriate. See, e.g. B.M.L. Through Jones v. Cooper, 919 S.W.2d 855, 858
(Tex. App. 1996)
                                        10
worker.    (CCR 4:430).   Roland Brackens (“Brackens”) was his

immediate “supervisor” at the college. (CR 4:292). Brackens had

evaluated Rollins as “honest” “responsible,” and rated him “good” in

“willingness to do work.” (CCR 4:359).

     Bracken’s direct supervisor was James Harris, Vice President of

Business and Finance. (CCR 7:930, 21:3513). Dwight Fennel was the

College President (CCR 7:931).

     MPF Investments, LLC d/b/a A-1 Rent All (“MPF”), is the

company from whom Texas College rented one of the two scissor lifts

that were in the gym where Mr. Rollins was working on October 22,

2013. (CCR 2:104).

     THE FIRST “BLACK OUT” INCIDENT

     Rollins first experienced “syncope and associated symptoms”

during a September 2013 physical plant work assignment. (CCR

3:234).   On September 8, 2013, Rollins “briefly passed out” after

coughing and sneezing while he was trying to lift a heavy slab of

marble. ROLLIN’S AFFIDAVIT (CCR 25:4132). The next day, September

9. 2013, he “went to the doctor.” Id “He was eventually told he had

an episode of ‘syncope.’” REPORT OF JOE G. GONZALEZ, MD (CCR 6:651).



                                 11
      ROLLINS IS DIAGNOSED WITH SYNCOPE

      In his expert report to the trial court, Dr. Joe G. Gonzales,3

summarized his medical history of Rollins:

            On September 9, 2013, Mr. Rollins was seen at the
      Emergency Department of Baylor University Medical Center for
      syncope. It was indicated Mr. Rollins had multiple episodes and
      each spell was "ppt" by generalized paresthesia, and some
      lightheadedness. It was also indicated Mr. Rollins had episodes
      at work, while driving and had several spells that day. It was
      also noted Mr. Rollins lost consciousness that day and Mr.
      Rollins had a GCS score of 15.
            On September 10, 2013, Mr. Rollins was discharged home
      in stable condition and was provided a diagnosis of syncope.
      It was indicated Mr. Rollins was provided discharge instructions
      for syncope (fainting episode). It was noted Mr. Rollins was
      provided a work release form which allowed Mr. Rollins to be
      able to return to work in 2 days with no restrictions.
            On October 14, 2013, Mr. Rollins was seen by William J.
      Hwang, M.D. for blackout spell during exertion, pain in neck
      and back, and numbness from the neck down. It was noted Mr.
      Rollins was lifting a heavy object on September 4, 2013, sneezed
      during the episode and developed weakness and numbness
      from the neck down. It was indicated Mr. Rollins passed out
      twice that day and had felt dizzy and lightheaded prior to
      blackout spells. …. Dr. Hwang provided assessments of 1
      episode of blackout spell, and noted differential diagnoses
      included syncope versus seizures, stroke and TIA. …. Dr.
      Hwang advised to follow up with primary care doctor for chest


      3  Dr. Joe G. Gonzales is a Physical Medicine & Rehabilitation, Pain
Medicine, and Occupational & Environmental Medicine specialist who has
practiced Medicine in Texas since 1985. He is the President of the Texas Physical
Medicine & Rehabilitation Institute, and the Founder and Medical Director of
Physician Life Care Planning, LLC. Dr. Gonzales is a licensed physician in the
State of Texas.
                                      12
     pain and possible syncope episode such as a cardiogenic
     syncope and instructed Mr. Rollins NOT TO DRIVE until free
     from blackout spells for 6 months.

REPORT OF JOE G. GONZALES, MD (CCR 6:646-647) (emphasis added).

     NOTICE OF SYNCOPE DIAGNOSIS AND REMOVAL FROM DRIVING DUTY

     Importantly, Rollins informed both Harris and Brackens that he

“was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT

(CCR 25:4132). Brackens admitted to hearing about the problem:

“…I left out on the 9th of September and I think I returned on the

17th. I think that's when I -- the day I returned back from vacation.

There was a incident that I heard that he had had a light stroke or a

heart attack or something --…” (CCR 4:382). In addition, on at least

one prior occasion Rollins told Brackens that he was afraid of

heights. (CR 4:294)

     In his affidavit, Rollins indicated that he “produced a Doctor

note to prove that [he] had been to the hospital. Mr. Harris and Mr.

Brackens then removed [him] from a driving duty [he] had been

performing for some time at Texas College where [he] would drive

students from Dallas to Tyler to attend classes.” (CCR 25:4132). In

his sworn interrogatory answers Rollins stated that he was “restricted

from driving” in September of 2013. (CCR 3:236).

                                 13
     Rollins had been asked to drive TC students on Tuesday and

Thursday mornings.     (CCR. 4:306).     Brackens testified that he

“knew” about the “park-and-rides” Rollins was “doing” on Tuesdays

and Thursdays. (CCR 4:362). Confirming Rollins’ version of events,

Brackens also testified that he suspected that Harris was responsible

for the suspension:

     Q. Who is it -- who is it that likely took him off of the driving
        detail?
     A. Mr. Harris.
     Q. And do you know why Mr. Harris took him off the driving
        detail?
     A. No, sir, I do not.
     Q. Did it have anything to do with Garry having some
        issues behind the wheel, passing out, that sort of thing?
     A. That I do not know. I know that he had been in and out sick
        all the time. That could have been the issue.

(CCR 7:883-883).

     THE GROWING ANTAGONISM

     During this time, Rollins began “to experience problems getting

along with Mr. Brackens.” (CCR 25:4132). “At times” he questioned

Bracken’s “leadership ability and competence.” Id. Brackens was

having Rollins “perform maintenance and repair jobs that were at

times degrading and a little frightening.”     Id.   Rollins began to

question the schools attitude toward their safety. (CCR 25:4133).


                                 14
     Although he was Rollins’ superior, Brackens admitted that he

resigned because he had “leadership problems” and that employees

were “not listening” to him. (CCR 4:343). A colloquy with counsel

shows that Brackens had an issue with people not taking his orders:

     Q. Meaning that people were not respecting your leadership
        and authority and your position?
     A. Correct.
     Q. And why do you think that there was a lack of respect for
        your authority and leadership at Texas College?
     A. Don't know. Don't know. That's -- the employees, that's the
        problems that I had. You cannot make grown folks work,
        and all I could do was ask them to do jobs and they it
        wasn't getting done.

(CCR 4:344) (emphasis added).

     THE WORK ON OCTOBER 21, 2013

     On October 21, 2013 Roland Brackens told Rollins, that “Dr.

Fennel wanted the ceiling in the gym fixed....” and that a “scissor lift

would be out” and to “go in” the gym. (CCR 4:297). Mr. Rollins

described his response: “I expressed to him then I didn’t know how

to use it and I didn’t want to get up on it because I done got too old

and I’m afraid of the height.” (CCR. 4:297). Nevertheless Brackens

told Rollins to get with another employee “Michael Jones” who




                                  15
Brackens claimed knew “how to use it.” (CCR 4:297).               Rollins

complied. Id.

        After some difficulty with the lift, as Mr. Rollins described: “We

finally got it crunk up, and we went up and patched the roof, the

ceiling. I stayed up there about five minutes on the 21st showing

him what needed to be done, and him and a community service

finished off.” (CCR 4:297) (emphasis added). Although, Rollins had

no “trouble getting off the lift” (CCR 4:299), he was “nervous the

entire time” he was “up there.” (CCR 25:4133). They did not finish

the work that day. (CCR 25:4133).

        Bracken’s judgment was not good.        Earlier that day he had

instructed the men to put a ladder on top of the scissor lift

platform to reach even higher. (CR. 4:303-304). He admitted to it.

(CCR 4:342). His order was universally rejected by his subordinates

and his superiors. (CCR 4:304). The deposition testimony describes

this crazy suggestion, as well as Rollins’ response in rejecting the

idea:

        Q. What other conversation took place?
        A. I discussed with Mr. Harris Roland told them guys to set a
           ladder up on top of the lift and get up there because it
           wouldn't reach a certain height that they had to get to and
           he told them to set a ladder up on top of the lift and I told
                                    16
       them not to set no ladder up on there because they be
       done fell out and kill theirself. And I told Ms. Bowie and
       Mr. Harris that. Well, Mr. Harris started laughing about it
       and said that that was stupid of Roland to even suggest that
       being in the position that he's in.
     Q. And you were standing there when Mr. Brackens told this
        to Stevie?
     A. No. They came and told me, and I confronted Mr. Bracket
        about it.
     Q. Stevie was one of them, was the other one --
     A. Mike and Alex.
     Q. All three.
     A. Yes.
     Q. And they told you and then you went --
     A. And then I went and talked to Roland about it first,
        asked him why would he tell them to set a ladder up on
        that lift.
     Q. And what did he say?
     A. He said that Dr. Fennell want this done, he want it done by
        Friday, so whatever it takes to get it done, that's what we
        need to do.

(CCR 24:4041-4042) (emphasis added).

     THE CONFRONTATION ON THE AFTERNOON OF OCTOBER 21ST

     Rollins’ refusal to obey Mr. Brackens had consequences. Later

that evening Rollins “was called to the office by Mr. Harris and Ms.

Bowie....” (CCR 4:297-298). As Mr. Rollins put it: “…Mr. Bracket

had told them that I said I wasn’t going to get up there and do it….”

(CCR. 4:298). Harris told Rollins that Brackens had “complained”

                                 17
that Rollins was an “ongoing discipline problem” and that Rollins

“didn’t want to do as told.” (CCR 25:4133). “Mr. Harris informed

[Rollins] that in order to keep [his] job [he] needed to get the

ceiling fixed as directed.” Id. (emphasis added).

     In his deposition, Rollins described the pressure to be on the lift

due to the presence of a camera in the gym:

     Q. Now, I do want to ask you about this conversation. Tell me,
        just describe in your own words as best you can what you
        said to them and what they said to you.
     A. Well, when I walked in the office, I asked Mr. Harris what
        was going on, and I saw Ms. Bowie. And normally if
        something is going on that Mr. Harris want me to take care
        of, he usually calls me up there and I do the job. When I
        saw Ms. Bowie, I asked them what was going on.
       They said, "Mr. Bracket said that you won't do nothing
       he said."
       And I told them he was a liar. I say, "I done been in the
       gym this morning and started Mike and them in there
       patching the roof." We got cameras in there in the gym,
       and I was seen on the cameras up there on the lift.
     Q. How do you know that? Was that part of this conversation?
     A. Was it part of who conversation?
     Q. The conversation with Mr. Harris and Ms. Bowie?
     A. Yes. I told them I was seen by Dr. Fennell and Ms. Marshall.
     Q. On the camera.
     A. Yes.
     Q. How do you find out about that?
     A. Ms. Marshall told me.
     Q. When did she tell you that?
                                  18
A. That evening on the way home. She said, "I was sitting up
   here wondering why did you get up on the lift feeling
   the way you feel."
    AND I TOLD HER I DIDN'T HAVE NO CHOICE and I got to
    finish it up tomorrow.
Q. But you were discussing that with Mr. Harris and Ms.
   Bowie?
A. Yes.
Q. But you weren't aware that you were seen on the camera
   until after you left the campus to go home.
A. No, no, no. When we got in the car, Ms. Marshall
   automatically started talking with me about why would you
   get up on that lift.
…
Q. So, tell me -- all right. So, tell me about this discussion
   then about being on the camera with – I mean, the
   discussion you had with Ms. Bowie and Mr. Harris about
   being on the camera.
A. It wasn't a long discussion, it was just when I was called in
   the office that evening, I was already in Ms. Marshall's office
   sitting in her office. And she sit up there and ask me,
   "Why would you get up on the lift like that and you
   know how you're feeling?"
    So, I told her at that time, "Well, Roland told me that I
    had to GET UP THERE and get it done." And then in the
    next two or three minutes, Mr. Harris called my phone and
    had me come around to his office, we're in the same
    building. I went around to his office, and he immediately
    told me that Mr. Bracket said that I wouldn't do nothing he
    told me to do and I was supposed to been in there fixing
    that gym and I wasn't even doing that.
    And I told him that Mr. Bracket is telling a lie, I say Ms.
    Marshall and Dr. Fennell saw me on there.
Q. So, Ms. Marshall told you that she and Dr. Fennell saw
   you.

                              19
     A. Yes.

(CCR 4:300 - 303) (emphasis added). Rollins continued to describe

the specific directive he received that afternoon from Mr. Harris:

     Q. Did you have any further conversation with Ms. Bowie and
        Mr. Harris?
     A. No. As far as on that evening, Mr. Harris just told me that
        first thing in the morning go in there and get that done, he
        say, because Dr. Fennell been telling Roland that he wanted
        to get it done and Roland come up here and say you say you
        ain't going to do it, but we need to get that done before
        Friday. I told Mr. Harris, "Mr. Harris, I'm going to tell you
        like I told Roland, I'm afraid of the height, but I'm going to
        get in there and I'm going to get it done." And at that time, I
        was also angry. But when Tuesday came, I went in there
        and I got it done.

(CCR 4:304-305).

     Interestingly, Mr. Brackens testied repeatedly that Rollins was

not at work on the 21st. (CCR 20:3289). But Michael Johnson, a co-

worker indicated that Rollins was there and had instructed him to

disregard the crazy ladder instruction made by Brackens earlier on

that day. (CCR 20:3269).

     THE WORK ON OCTOBER 22ND

     Rollins testified that he showed up for work at about 7:15 am

on the morning of the 22nd and after a short “McDonalds” breakfast

the crew got to work. (CCR 4:307). He continued:


                                 20
       And by that time, the guys would be through picking up
       trash out through the campus, and we all get started to
       work. So, on that Tuesday, I knew I didn't have a choice,
       I feel like my job was in jeopardy and I was still mad and
       angry. But I went in the gym, me, Steve Alex, Mike hadn't
       showed up yet, and we try to get the lift started. We couldn't
       get it started; so, it was another lift on the other end, we
       went down there and we managed to get that one crunk up.
       And I went up there and start patching the holes. Maybe
       five minutes Mike came in, and he told me that he would go
       ahead and finish it. And I told him, nah, I said, no, Roland
       done called me in the -- I mean, Mr. Harris done called me
       in the office yesterday evening because of Roland telling
       him that I wouldn't do it. He said, "Well, Roland is just
       lying, we was in here." I said, "Well, I know it" I said, "but
       I'm not worried about that," I say, "I just need to get this
       done because I don't need them saying nothing else to me
       about this gym."

Id. In another exchange, Rollins testified about the situation with

more detail:

     Q. And how long were you up on the lift up there by yourself
        before Mike came in?
     A. Maybe 5 or 8 minutes. When he came in, I let it down and
        he got on. And he told me that, "Well, you go ahead and
        get off, man, because you look like you're scared." I
        said, "Well, I don't want to be up here anyway, but your
        uncle went and lied yesterday; so, I got to get this
        done."
     Q. So, he and Mike initiated the comment that you go ahead
        and get down because you look like you're scared.
     A. Yes.
     Q. And then you told him no because your uncle --
     A. I had to get it done.
     Q. Because your uncle lied yesterday.

                                21
     A. Yes. I was directed by Mr. Harris to get it done Tuesday.
     Q. That wasn't T-uesday, was it?
     A. That was on a Monday when Mr. Harris direct me
        Tuesday morning GET UP THERE and get it done.

(CCR 309)(emphasis added).

     Rollins was “afraid” of working on the scissor lift at that time

“because [he] didn’t know how to operate it, hadn’t been trained, and

was fearful because of [his] injury and blackouts.” (CCR 25:4134).

     Harris testified that Rollins was duty bound to get on the lift if

Mr. Brackens told him to – even if Brackens knew about the syncope!

     Q. So, you're now going to testify -- or are you testifying now
        that if a manager knows that an employee is suffering
        from seizures, the employee should get on the scissor
        lift if the manager says get up there and do it, is that
        what you're telling me?
     A. Yes.

(CCR 868). This is the type of evidence which supports a finding of

gross negligence. Brackens has completely denied the events and

stated that he told Mr. Rollins not to “be in the Gym” on Oct. 22d.

(CCR 4:354).

     Rollins “would not have gotten on the lift if [he] had not been

specifically instructed to do so by Mr. Brackens and later by Mr.

Harris.” (CCR 25:4134). “The only reason [he] got on the lift is


                                 22
because [he] was told to do so and was made to feel as though

[his] job depended on it.” (CCR 25:4134-4135) (emphasis added).

Rollins “didn't want to do it.” (CCR 25:4135).

             If Mr. Brackens had looked at the owner's manual and
      informed [Rollins] that a person with blackouts shouldn't be on
      a lift, [Rollins] would not have gotten on. Mr. Brackens however
      did not do this. He did not look at a safety manual, and if he
      did, he certainly did not inform or warn [Rollins] that a person
      in [Rollins’] condition shouldn't be on a scissor lift.
Id.

      THE FINAL “BLACK OUT” AND THE “FALL”

      Once Mike “brought the lift down” Rollins “went to exit and fell

from the top of the platform flat on [his] back onto the gym floor.”

(CCR 25:4134). “The top of the lift platform is still a good three feet

off the ground when its all the way down and [he] fell straight back

with nothing breaking his fall.”     Id.   Rollins does not “remember

taking the first step down.” Id.

      Insinuating that Rollins’ prior ordeal (of multiple hospital visits,

medical tests, and ultimate syncope diagnosis) was the first part of

some elaborate fraud, Michael Johnson who is apparently Bracken’s

nephew (CCR 4:309) and was still on the payroll (CCR 4:400) testified

that Rollins looked like he just “let go.” (CCR 4:410). Johnson also

claimed Rollins offered to “take care of” him “when this is over.” (CCR
                                   23
4:413). In a move completely inconsistent with fraud, after the fall,

Rollins said something like “Yea, I’m fine or okay.” (CCR 4:458.) He

told Stevie Barron “that he was just embarrassed.” Id. Rollins was,

in fact, embarrassed and thought he was alright. (CCR 25:4134). He

“tried to get up fast because [he] was more embarrassed knowing that

Dr. Fennell was looking at the cameras.” (CCR 21:3620). “Of course,

[he] later ended up having to have major surgery.” Id.

     Regardless, the “stress of the work at that height had [him]

disoriented and dizzy. Id. He was already “nervous being that high

in the air.” Id. All Rollins remembered was “turning around on the

platform, gripping the handrails, and then being on [his] back.” Id.

     Q. So, you had a right hand on one handrail and a left hand
        on the other.
     A. Yes.
     Q. While you were still standing on the platform, the floor.
     A. Right.
     Q. And then you proceeded to step down --
     A. Yes.
     Q. -- the first step? With your right foot or left foot?
     A. I don't know was it my right or left, I can't recall.
     Q. Were you able to step down on that step?
     A. I stepped down, and when I stepped, I fell.
     Q. How did you fall?


                                   24
     A. I just fell flat on my back, I don't know what happened, I
        just fell.

(CCR. 21:3619-3620).

     THE ATTEMPT TO MANUFACTURE EVIDENCE OF “CONSCIOUSNESS”

     In deposition, Texas College’s counsel repeatedly asked Rollins

questions which could be misconstrued.       When Rollins said he

remembered “falling,” counsel attempted to make it seem as though

the witness was saying that he was conscious, but Rollins had to

correct the effort of misdirection:

     Q. Don't remember if you slipped.
     A. No.
     Q. Don't remember if you stumbled?
     A. No.
     Q. But you do remember falling down on the floor.
     A. Yes.
     Q. So, you were conscious the whole time.
     A. I don't know if I was conscious or not. When I hit the
        floor -- right at this time, I don't know what happened.
     Q. But do you -- you recall falling down, right?
     A. Yes.
     Q. You don't recall -- I mean, you recall holding on and then
        you fell down.
     A. And that's all I remember.

(CCR 4:313-314).




                                      25
     The testimony above makes it clear that Mr. Rollins lost

consciousness or most likely lost consciousness. Despite counsels’

continued attempt to get Mr. Rollins to admit to consciousness

during the fall, the witness simply stated: that he remembered falling

(as in being standing, then being on the ground) – not that he

remembered the entire sequence of the fall.

     This testimony was not clearly presented to the trial court, but

instead paraphrased: “Rollins has no explanation as to how he fell;;

just that he fell.” See TC’S MOTION FOR SUMMARY JUDGMENT, p. 2. (CCR

4:250).

     Ironically, when cross examined by counsel for MPF, the

syncope explanation becomes more likely:

     Q. All right, Mr. Rollins. You testified that before the October
        22nd incident you had an issue where you were driving
        home and you started to black out; is that correct?
     A. Yes.
     Q. Okay. Is it a possibility that the day that you fell off the lift
        that you blacked out and fell on it?
     A. I really don’t know how to answer that because I really don’t
        know what happened that day.
     Q. (BY MR. GEDDIE) Okay. So you agree with me that that’s a
        possibility that you blacked out that day.
     A. Again, my response is I don’t know exactly what happened.
     Q. Can you think of any reason why it could not be an
        explanation for your fall that you blacked out?
                                   26
     A. No.

(CCR 2:155-156) (emphasis added). Rollins explanation might be

simple, but it makes sense: “I shouldn't have been on it.”       (CCR

4:317).

     THE CONDITION OF THE LIFT AND TRAINING

     The lift had been rented by Texas College from MPF.         (CCR

5:469). According to Brackens, who signed off on the lift, there was

no owner’s manual on board the lift.     (CCR 2:162). Mr. Bracken’s

testified that although he was given instruction on “how to operate”

the lift, he did not pass that training onto his subordinates:

     Q. But you didn’t’ turn around and show or train your
        subordinates how to operate it?
     A. My subordinates had already been trained, because that is
        not the first time that we had a scissor lift on the premises
        and was used.
     Q. And is proof of training kept in their personnel files?
     A. No.
     Q. Why?
     A. That I can’t answer.

(CCR 2:162).    Rollins swore that MFP (A-1) “did not offer us

training” or “familiarize us with the lift.”          (CCR 25:4133)

(emphasis added).    Mr. Harris, agreed that “untrained employees

shouldn’t be on scissor lifts.” (CCR 7:863).




                                  27
     Rollins “hadn’t been trained” and “didn’t know how to operate

it.) (CCR 25:4134). Rollins was “present outside the gym when A·1

Rent All delivered the scissor lift to Texas College.” (CCR 25:4143).

He “asked the delivery person if A·1 would bring the lift inside the

gym and who was going to show [them] how to use it.” Id. “The A·1

person informed [Rollins] that he couldn't bring the lift indoors and

that the folks at Texas College knew how to use the lift.” Id. Rollins

stated that “A-1 did not offer us training nor did it familiarize us with

the lift. The person from A·1 just came and delivered the machine

and left.” Id.

     When asked about what training could have made a difference,

Mr. Rollins testified as follows:

     Q. Here's my question, and I'm trying to make sure that I'm
        clear about it: What training could you have been given, if
        any, if you know, that would have enabled you to get on the
        lift or get off of it onto the floor any better than you did?
     A. Any proper training that someone that already knew how to
        use the lift or someone that already was licensed to use the
        lift.
     Q. (BY MR. YARBROUGH) Is that your answer?
     A. Yes.
     Q. And how would that specifically have helped you do
        anything different?
     A. Then I would have been trained to know how to use it and
        to get on and off the proper way, operate it the proper way.

                                    28
        But it still -- I was still afraid to get on it, period; so, I
        shouldn't have been on it.

(CCR 4:316-317) (emphasis added).

     THE INJURY

     Mr. Rollins testified that as soon as he fell, he was “hurting” in

the “back of my neck.” (CCR 4:314). He had no prior complaints

about neck pain:

     Q. Yeah. What I'm asking is after you recovered from the first
        surgery to your neck, two months after that before the
        incident at Texas College on October 22, 2013, had you
        complained of pain in your neck"?
     A. No, I had not complained about pain in my neck.

(CCR 4:318).

     In his report to the trial court, Dr. Gilbert Martinez, noted the

link between the fall and Rollins’ neck injury:

          Correspondence on July 18, 2014, by Dr. Barnett includes
     the opinion that there was reasonable medical probability
     that Mr. Rollins suffered an acute herniated disc at C4-C5
     and spinal cord contusion caused by the fall on October 22,
     2013, and that he would have chronic pain in his neck and
     spinal cord dysfunction as a result of the injury.

REPORT OF GILBERT MARTINEZ PHD (CCR 6:611). The photos are telling:




                                  29
REPORT   OF   JOE G. GONZALES, MD (CCR 6:674). Dr. Martinez’ Report

continues:

     3. Mr. Rollins will benefit from a comprehensive pain
     management program with a focus on interventions designed to
     reduce the effects of acute and chronic and pain. This should
     include evaluation by a medical pain specialist who can
     evaluate Mr. Rollins' potential for benefiting from medical
     procedures designed to alleviating chronic pain, as well as
     participation in various therapies designed to improve physical
     and behavioral adjustment of individuals with chronic pain.
     Such programs typically include a brief inpatient
     hospitalization for initial evaluation, medication management,
     and intensive therapy, followed by a more extended course of
     outpatient therapy.
     4. In addition to the effects of his physical problems, Mr. Rollins'
     chronic reactive depression will contribute to his functional
     disability and will have a negative impact on his long-term
     vocational adjustment. Life care planning should account for
     Mr. Rollins' significantly diminished occupational potential.
                                  30
REPORT OF GILBERT MARTINEZ, PHD (CCR 6:620). The prognosis if poor

for Gary Rollins:

           Based on the known medical conditions, Mr. Gary L.
     Rollins will have lifelong, progressive symptoms, physical
     impairment and subsequent disability which will require long-
     term medical care.

REPORT OF JOE G GONZALES, MD (CCR 6:628).

                    SUMMARY OF THE ARGUMENT


     When one seeks to win by excluding key evidence on the basis

of strategic, technical grounds, one must live and die by the technical

and strategic failures of one’s own motions. Rather than argue the

merits of this case, Texas College and MPF launched a technical war

and jointly attempted to eliminate all relevant testimony, affidavits,

expert reports, operating manuals, and relevant medical records from

the record. Instead, they failed to convince the court to strike key

parts of Rollins’ Affidavit, they lost a key battle over Doctor Reports

which they introduced and referenced without objection, and they

actually introduced the majority of the testimony which proves their

own liability.




                                  31
     Moreover, many of the evidentiary objections were simply

without merit.    If revisited by this Court, even more summary

judgment evidence supporting appellants’ claims will surface.

     Finally, even on the remote chance more evidence is needed,

this Court should reverse the trial courts denial of the motion to re-

open the evidence.

                            ARGUMENT



1.   STANDARD OF REVIEW

     The function of summary judgment is to eliminate patently

unmeritorious claims and defenses, not to deprive litigants of the

right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 n. 5 (Tex.1979); Swilley v. Hughes, 488 S.W.2d 64,

68 (Tex.1972).

     Recently in Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-

00290-CV, 2013 WL 6797871, at *7-8 (Tex. App. Tyler, Dec. 20,

2013), review denied (Aug. 22, 2014) this Honorable Court

summarized the standard of review for a case similar to this, which

involved both traditional and no-evidence summary judgments.

     TRADITIONAL MOTION STANDARD

                                 32
     In Wylie, this Court cited the authority and set forth the

standard:

           The movant for traditional summary judgment has the
     burden of showing that there is no genuine issue of material
     fact and that it is entitled to judgment as a matter of law. Tex.R.
     Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. When the movant
     seeks summary judgment on a claim in which the nonmovant
     bears the burden of proof, the movant must either negate at
     least one essential element of the nonmovant's cause of
     action or prove all essential elements of an affirmative defense.
     See Randall's Food Mkt., Inc. v. Johnson, 891 S.W.2d 640, 644
     (Tex.1995). When the movant seeks summary judgment on a
     claim in which the movant bears the burden of proof, the
     movant must prove all essential elements of the claim. Winchek
     v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 201
     (Tex.App.-Houston [1st Dist.] 2007, no pet.). Once the movant
     has established a right to summary judgment, the burden
     shifts to the nonmovant to respond to the motion and
     present to the trial court any issues that would preclude
     summary judgment. See City of Houston v. Clear Creek Basin
     Auth., 589 S.W.2d 671, 678–79 (Tex.1979).

Id. at *7 (emphasis added).     “In determining whether there is a

genuine fact issue precluding summary judgment, evidence

favorable to the non-movant is taken as true and we make all

reasonable inferences in his favor.” Hernandez v. Brinker Int'l, Inc.,

285 S.W.3d 152, 163 (Tex. App. 2009) (emphasis added). Elements

of the action must be “conclusively” negated in order for the

defendants to prevail. Id. (emphasis added).     Any doubts are to be



                                  33
resolved in the non-movant’s favor.           Nixon v. Mr. Property

Management, 690 S.W.2d 546, 548–49 (Tex.1985).

     As will be shown here, even if one removes from consideration

all of the stricken evidence, there is still a genuine issue of material

fact as to Duty, Breach of Duty and Causation against each

defendant.

     NO EVIDENCE MOTION STANDARD

     In Wylie, this Court’s explanation of the no-evidence standard

was equally complete:

           Once a no evidence motion has been filed in accordance
     with Rule 166a(i), the burden shifts to the nonmovant to bring
     forth evidence that raises a fact issue on the challenged
     evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600
     (Tex.2004). We review a no evidence motion for summary
     judgment under the same legal sufficiency standards as a
     directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d
     742, 750–51 (Tex.2003). A no evidence motion is properly
     granted if the nonmovant fails to bring forth more than a
     scintilla of probative evidence to raise a genuine issue of
     material fact as to an essential element of the nonmovant's
     claim on which the nonmovant would have the burden of proof
     at trial. Id. at 751. If the evidence supporting a finding rises to
     a level that would enable reasonable, fair minded persons to
     differ in their conclusions, then more than a scintilla of
     evidence exists. Id. Less than a scintilla of evidence exists when
     the evidence is so weak as to do no more than create a mere
     surmise or suspicion of a fact, and the legal effect is that there
     is no evidence. Id.



                                  34
Id. These facts do “more than create a mere surmise of suspicion” of

a negligence claim.

     ORDER OF CONSIDERATION

     This Court continued in Wylie to explain the proper order of

consideration of the issues:

     In both traditional and no evidence summary judgment
     motions, we review the entire record de novo and in the light
     most favorable to the nonmovant, INDULGING EVERY
     REASONABLE INFERENCE AND RESOLVING ANY DOUBTS
     AGAINST THE MOTION. See Sudan v. Sudan, 199 S.W.3d 291,
     292 (Tex.2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.
     Corp., 988 S.W.2d 746, 748 (Tex.1999). All theories in support
     of or in opposition to a motion for summary judgment must be
     presented in writing to the trial court. See Tex.R. Civ. P. 166a(c).
     If the trial court's order does not specify the grounds on which
     it granted summary judgment, we affirm the trial court's ruling
     if any of the theories advanced in the motion is meritorious.
     State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380
     (Tex.1993).
           Moreover, when a party moves for both a traditional and a
     no evidence summary judgment, generally, we first review the
     trial court's summary judgment under the no evidence
     standards of Rule 166a(i). Ridgway, 135 S.W.3d at 600. If the
     no evidence summary judgment was properly granted, we do
     not reach arguments made under the traditional motion for
     summary judgment. See id. at 602.

Id. at *8 (emphasis added). Here, appellant will show that under the

current law there is substantial evidence of the elements of the

claims.   In doing so, the showing will also defeat any summary

judgment on traditional grounds.

                                  35
     MOTION TO RE-OPEN EVIDENCE

     A motion to re-open the evidence is reviewed under an abuse of

discretion standard. In re Prot. of H.W., 85 S.W.3d 348, 358 (Tex.

App. Tyler 2002).    In the case of In re Prot. of H.W., this Court

indicated a primary consideration when it stated: “…the trial judge

should liberally exercise his discretion to permit both sides to

fully develop their case. Id. (citing Lifestyle Mobile Homes v. Ricks,

653 S.W.2d 602, 604 (Tex. App.-Beaumont 1983, writ ref'd n.r.e.))

(emphasis added).

     As will be shown, the trial court here did the opposite. It struck

evidence on dubious technical grounds and refused to allow

correction of the “alleged” defects. This precluded the parties from

fully developing the case.

     SCOPE OF EVIDENCE

     On February 19, 2015 the trial court issued 6 orders on six

intertwined matters: Texas College’s two motions for summary

judgment, appellees joint motion to strike the designations and

reports of Dr. Martinez (psychologist), Dr. Gonzales (medical doctor)

and Thomas Roney (economist);; MPF’s motion to strike the

designation and testimony of Burt Thorpe (aerial lift equipment

                                 36
expert);; Texas College’s motion to strike evidence;; and MPF’s

objections to evidence.

     When a trial court sets a single hearing for multiple intertwined

motions, the court is free to consider the evidence together. It may

consider evidence advanced by one party in one motion, to support a

motion or response by another party. In Rea v. Cofer, 879 S.W.2d

224 (Tex. App. 1994) the appellant had asserted the discovery rule.

Appellees’ motion for summary judgment, failed to even address the

issue.     Nevertheless the Court of Appeals determined that the

omission was not fatal, “because the proof necessary to negate the

discovery rule was contained in [another party’s] motion for summary

judgment on file with the court.” Id. at 228. The Rea court cited

Desiga v. Scheffey, 874 S.W.2d 244 (Tex.App.—Houston [14th Dist.]

1994, n.w.h.) in which the court held that when a trial court sets a

single hearing for multiple motions for summary judgment, the court

may look to other proof on file with the court to determine any of the

motions.     In a particularly instructive passage, the Desiga court

stated:

          However, in view of the unique circumstances of this case,
     we find this omission to be not fatal as to Dr. Guerrero's
     summary judgment for the following reasons. Only one hearing

                                  37
      was set for the judge to rule on all of the motions. All of the
      motions were heard at the same time, January 22, 1993 at 9
      a.m. At the same hearing, the trial court heard all of the
      arguments in support of the various motions. The trial court
      granted summary judgment for all appellees the same day. In
      the unique facts and circumstances of this case, to find
      otherwise would place the trial court in a position of having
      to engage in the ARTIFICE OF IGNORING Mr. Desiga's
      deposition testimony which was otherwise on file with the
      court in the form of the other appellees' motions for summary
      judgment.

Id. at 253 (emphasis added).     The Desiga court noted the Texas

Supreme Court’s increasing leniency with regard to summary

judgment evidence:

            We find support for this holding in the Texas Supreme
      Court’s recent demonstrations of increasing leniency in the
      areas of both summary judgment proceedings in general and
      summary judgment evidence specifically. See McConathy v.
      McConathy, 869 S.W.2d 341, 341 (Tex.1994) (holding
      deposition excerpts used as summary judgment evidence need
      not be authenticated to be considered competent summary
      judgment proof); Mafrige v. Ross, 866 S.W.2d 590, 590
      (Tex.1993) (holding parties may make otherwise unappealable
      order final simply by adding “Mother Hubbard” language in the
      order). Such a holding with regard to Dr. Guerrero is in effect
      acknowledging the trial court's capacity to take judicial
      notice of those documents on file with it at the time of a
      hearing on a motion for summary judgment. The other parties'
      motions for summary judgment having been duly filed with the
      trial court for its consideration constituted part of the record
      before it.

Id.




                                  38
     In addition, both orders of summary judgment contained

language expanding the scope of evidence far beyond the confines of

rule 166a to “any additional briefing accepted by the court.”

(CCR 24:3935 and 24:3938).      Thus, this Court need not engage in

the “artifice of ignoring” the evidence that was before the trial court

at the time of the February 19th rulings. It may consider all of the

evidence presented by all the parties together, when deciding the fate

of any particular motion.

2.   THE TRIAL COURT ERRED IN GRANTING TEXAS
     COLLEGE’S TRADITIONAL AND NO EVIDENCE MOTION
     FOR SUMMARY JUDGMENT

     Because the trial court did not hold oral argument and because

its orders are silent as to any reasoning, this brief will examine the

rationale behind appellees’ motions.

     NATURE OF CLAIMS INVOLVED

     Texas College’s motion is chock full of inapplicable premises

liability cases, as well as cases in which there was no evidence of

unusual danger.     Here, there is a singular sterling difference

between the facts of this case and the facts of any case cited in

support of Texas College’s motion. It is the truly insane and

spiteful order for Rollins to “get up there” and finish the work.

                                  39
The order was given despite both Brackens and Harris knowing that

Rollins was “unfit” for the job due to his “black-out” spells. Appellee’s

motions would have this court adopt the standard of liability provided

by Harris in his deposition:

     Q. So, you're now going to testify -- or are you testifying now
        that if a manager knows that an employee is suffering
        from seizures, the employee should get on the scissor
        lift if the manager says get up there and do it, is that
        what you're telling me?
     B. Yes.

(CCR 7:868). This is not the law. It should not be the law. None of

the cases cited in the motions involve the commanding of an

employee to do a knowingly unsafe act – an act which is not unsafe

because of a premises condition – but is unsafe because the plaintiff

was physically “unfit” for the job – he had fainting spells.

     This is not a premises liability case.         The only place in

appellants’ pleadings which the word “premises” appears is the

prayer: “WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray….”

(CCR 498-505, 8th Amended) (CCR 92-101, 7th Amended) (CCR 83-

91, 6th Amended). This case involves active and grossly negligent

supervision. As to Texas College, Rollins plead:

         Defendant's failure to: 1) provide a reasonably safe
     workplace; 2) furnish reasonably safe machinery or reasonably

                                   40
        safe personal protective equipment for use with the Lift and for
        use in lifting the marble slab counter top; 3) provide adequate
        help in the performance of work; 4) train and/or properly
        supervise Plaintiff Garry Rollins while using the Lift and lifting
        the marble slab counter top; and 5) to ensure that Plaintiff
        Garry Rollins was fit to perform work on a scissor lift.
7TH AMENDED PETITION (CCR 1:96) (emphasis added).
        THE ELEMENTS AND THE EVIDENCE

  1. Duty and Breach of Duty

        Tex. Labor Code Ann. § 406.033 eliminates significant defenses

in nonsubscriber cases such as this. The provision reads in pertinent

part:

        “… it is not a defense that:
             (1) the employee was guilty of contributory negligence;
             (2) the employee assumed the risk of injury or death;
        or
              (3) the injury or death was caused by the negligence of a
        fellow employee.

Id. (emphasis added). The Texas Supreme Court also reaffirmed that

comparative negligence may not be submitted in a nonsubscriber

case. See Kroger Co. v. Keng, 23 S.W.3d 347, 352-53 (Tex. 2000) (“We

therefore hold that a nonsubscribing employer is not entitled to a jury

question on its employee's alleged comparative responsibility.)

        Texas College’s motion focused primarily on the lack of duty to

warn of dangers which an employee already appreciates. This theory
                                       41
might have been applicable had Rollins plead “failure to warn.” He

did not.

     Texas College made extensive use of Kroger Co. v. Elwood, 197

S.W.3d 793, 794 (Tex. 2006.) See TEXAS COLLEGE MOTION FOR SUMMARY

JUDGMENT (CCR 4:249-271). Elwood was a near frivolous case, with

little in common to the instant case:

           Billy Elwood, a courtesy clerk at a Kroger grocery store,
     was injured when a customer shut her vehicle door on his
     hand while he was transferring items from a grocery cart to the
     vehicle. Elwood had placed one hand in the vehicle's
     doorjamb, and one foot on the cart, to keep the cart from
     rolling down a slope in Kroger's parking lot.

Elwood, 197 S.W.3d at 794 (emphasis added). But even in Elwood

the Court acknowledge the concept of “duty.” Albeit lengthy, the

following passage from Elwood and its highlighted language shows

why its holding and the holdings of similar cases do not apply here:

           An employer has a DUTY TO USE ORDINARY CARE in
     providing a safe workplace. Farley v. M M Cattle Co., 529
     S.W.2d 751, 754 (Tex.1975). IT MUST, for example, warn an
     employee of the hazards of employment and PROVIDE NEEDED
     safety equipment or ASSISTANCE. Id. However, an employer
     is not an insurer of its employees' safety. Leitch v. Hornsby, 935
     S.W.2d 114, 117 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d
     19, 21 (Tex.1993). It owes NO DUTY to WARN of hazards that
     are commonly known or already appreciated by the
     employee. See Nat'l Convenience *795 Stores, Inc. v. Matherne,
     987 S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no
     pet.). It has NO DUTY to provide equipment or ASSISTANCE

                                 42
THAT IS UNNECESSARY to the job's safe performance. See
Allsup's Convenience Stores, Inc. v. Warren, 934 S.W.2d 433,
438 (Tex.App.—Amarillo 1996, writ denied). And, when an
employee's injury results from performing the same character
of work that employees in that position have always done, an
employer is not liable if there is NO EVIDENCE THAT THE
WORK IS UNUSUALLY PRECARIOUS. Werner, 909 S.W.2d at
869 (citing Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 175
S.W.2d 249, 251 (1943)).
      In this case, there is no evidence that loading groceries on
the sloped portion of Kroger's parking lot is an unusually
dangerous job, nor is there evidence that other courtesy clerks
sustained similar injuries while loading groceries on the sloped
lot. Indeed, loading purchases into vehicles is a task
performed regularly—without any special training or
assistance—by customers throughout the grocery and retail
industry. While there is evidence that grocery carts had rolled
into vehicles due to the parking lot's slope and may have posed
a foreseeable risk of damage to customers' vehicles, this is no
evidence that the slope posed a foreseeable risk of injury to
Kroger's employees. Elwood presented NO EVIDENCE that his
JOB REQUIRED SPECIALIZED TRAINING. See Nat'l
Convenience Stores, 987 S.W.2d at 149. Elwood testified that,
prior to working at Kroger, he knew it was dangerous to place
his hand in a vehicle's doorjamb. Moreover, there is NO
EVIDENCE that carts with wheel locks or ADDITIONAL
PERSONNEL WERE NECESSARY to safely load groceries. See
Allsup's Convenience Stores, 934 S.W.2d at 438.
      Kroger had no duty to warn Elwood of a danger known to
all and NO OBLIGATION TO provide training or equipment to
DISSUADE an employee from using a vehicle doorjamb for
leverage. Employers are not insurers of their employees. See
Leitch, 935 S.W.2d at 117; Exxon Corp., 867 S.W.2d at 21.
Accordingly, without hearing oral argument, we reverse the
court of appeals' judgment and render judgment for Kroger. See
TEX. R. APP. P. 59.1, 60.2(c).



                            43
Id. at 794-95 (Tex. 2006) (emphasis added). The highlighted matters

are discussed below:

             a) Ordinary Care

     First and foremost:      Is there really any doubt that a

supervisor who knows his employee is having “black outs” is not

exercising “ordinary care” when he instructs that employee to

“get up there” in a scissor lift and patch the gym ceiling? Mr.

Elwood’s supervisors did not tell him to “get over there and put your

hand in the door jamb.”

             b) Duty to provide assistance

     Second, the facts here show that Texas College breached the

duty to provide assistance.   Recall that on October 21st Brackens

told Rollins that he “had to GET UP THERE and get it done." (CCR

4:303) (emphasis added). But Rollins had safely gotten off the lift

and directed his assistants do the work. He “…stayed up there about

five minutes on the 21st showing him what needed to be done, and

him and a community service finished off.”       (CCR 4:297).    Mr.

Brackens had been apparently upset by that fact.       So later that

afternoon “…Mr. Bracket [sic] had told them that [Rollins] said [he]

wasn’t going to get up there and do it….” (CCR 4:298). So, once

                                 44
again, Rollins was ordered to get up there. “That was on a Monday

when Mr. Harris direct me Tuesday morning GET UP THERE and

get it done.” (CCR 4:309) (emphasis added). Rather than let Rollins

use the assistance of his subordinates to do the patching, as he was

attempting to do on the 21st, Brackens and Harris got mad about it,

and ordered him personally to “get up there” on the 22nd. They made

the order, knowing he had been having “black outs.” The evidence

shows without a doubt that Texas College breached the duty to

provide needed assistance as set forth in Elwood.

             c) No Duty to Warn

     Here, Rollins is not complaining that Texas College should have

warned him of something he already knew (that it was dangerous for

him to get on the lift in his condition). He certainly knew that. He is

complaining that despite the fact that his employer also knew it, the

employer ordered him to take the risk he did not want to take. This

is not a “failure to warn” case. It is an “ordered to do it” case –

involving active and gross negligence.

     Very recently, the Texas Supreme Court answered questions

which had been certified to it by the United States Court of Appeal

for the Fifth Circuit. In the case of Austin v. Kroger Texas, L.P., 465

                                  45
S.W.3d 193 (Tex. 2015), the Texas Supreme Court surveyed the

landscape of cases relating to employer duty in non-subscriber cases.

Although most of the opinion deals with questions of liability relating

to premises defects, the Court mentioned an exception to the “no-

duty” rule in premises cases, which has at least some logical bearing

here:

             Instead, the Court's abolition of the no-duty rule should
        play a role only when an exception to the general rule applies—
        that is, when the nonsubscribing employer owes a duty
        despite the obviousness or employee's appreciation of a
        danger because, despite the awareness of the danger, it is
        necessary that the employee use the dangerous premises and
        the employer should anticipate that THE EMPLOYEE IS
        UNABLE TO TAKE MEASURES TO AVOID THE RISK. In such
        cases, the employer cannot rely on the fact that the risk
        was obvious and known to the employee to argue that the
        employee bears some portion of the responsibility for his
        own injuries, because the TWCA waives those defenses.
        Compare Del Lago, 307 S.W.3d at 772–73; Parker, 565 S.W.2d
        at 520, with Tex. Lab. Code § 406.033(a); Keng, 23 S.W.3d at
        352.

Id. at 210 (emphasis added). Here there is active negligence, but even

if it were a premises case, it would be excepted from the no-duty to

warn rule, because Rollins, being ordered to “get up there,” was

“unable to take measures to avoid the risk.”       Once he obeys the




                                   46
master’s orders, the risk is unavoidable. He is up high, in harm’s

way, subject to “blacking out.”

             d) Negligent Supervision, Negligent Training

     In addition, as the Texas Supreme Court noted in Austin:

           Thus, when a claim does not result from contemporaneous
     activity, the invitee has no negligent-activity claim, and his
     claim sounds exclusively in premises-liability. See Shumake,
     199 S.W.3d at 284; Keetch, 845 S.W.2d at 265.
          But when the landowner is also an employer and the
     invitee is also its employee, this additional relationship
     may give rise to additional duties, such as a DUTY TO
     PROVIDE NECESSARY EQUIPMENT, TRAINING, OR
     SUPERVISION. …..
            When an injury arises from a premises condition, it is often
     the case that any resulting claim sounds exclusively in premises
     liability, but that is not necessarily the case. An injury can have
     more than one proximate cause. Del Lago, 307 S.W.3d at 774;
     Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784
     (Tex.2001). The fact that Austin alleged that a condition of
     the premises proximately caused his injury does not
     preclude his allegation that Kroger's negligent failure to
     provide the Spill Magic system also caused his injury. If the
     only relationship between Austin and Kroger were that of
     landowner–invitee, the alleged facts could only give rise to a
     premises-liability claim. …..
          AS AUSTIN'S EMPLOYER, KROGER OWED AUSTIN
     duties in addition to its premises-liability duty and ITS
     DUTY NOT TO ENGAGE IN NEGLIGENT ACTIVITIES,
     including the duty to provide Austin with necessary
     instrumentalities.




                                  47
Id. at 215-16 (emphasis added). Here, there is not even an allegation

of premises liability, such as in Austin. But it is clear that the Texas

Supreme Court acknowledges the duties owed in this case.

     The evidence of negligent supervision is glaring.    Not only did

Harris and Brackens give Rollins a foolish order to “get up there”

(CCR 4:303, 4:309), Brackens admitted that he had “leadership and

authority” problems (CCR 4:344). He had even suggested they put a

ladder on the platform to reach even higher. (CCR 4:303-304). This

is a textbook “reasonable person” failure.

     As far as negligent training, Brackens admitted that he did not

pass the training he received on to his subordinates. (CCR 3:162).

(CCR 25:4133). Rollins “hadn’t been trained” and “didn’t know how

to operate it.) (CCR 25:4134) Mr. Harris, agreed that “untrained

employees shouldn’t be on scissor lifts.” (CCR 7:863).

             e) No Duty to Provide Unnecessary Assistance

     This statement in Elwood is a non-sequitur.           Who needs

“unnecessary” assistance? Here, to avoid undue risk, the assistance

Rollins wanted was necessary.       It is not outlandish to require a

supervisor with knowledge of the risk that one of his employees may

suddenly fall, to provide assistance and prevent it. See e.g.

                                  48
McEachern v. Glenview Hosp., Inc., 505 S.W.2d 386 (Tex. Civ. App.

1974), writ refused NRE (June 12, 1974). In McEachern, the Court of

Appeals reversed and rendered a verdict for the plaintiff because it

was reasonably foreseeable that a patient who was on table in

emergency room of hospital might faint as result of psychogenic

shock, or some similar event, and that the hospital was under duty

to have someone in attendance with patient and keep proper lookout

for his safety.)

              f) No evidence that the work is unusually
                 precarious

     This statement in Elwood distinguishes the case quickly.

Elwood, involved loading groceries on the sloped portion of Kroger's

parking lot – “a task performed regularly—without any special

training or assistance—by customers.” Elwood, 197 S.W.3d at

795. Here, there is no indication that untrained students were using

the scissor lift regularly. It goes without saying that elevating one’s

self to the top of a gymnasium ceiling on a “scissor lift” is precarious.




                                   49
     (CCR 21:3467)

               g) No evidence that the job required specialized
                  training

     Here, again the case facts are opposite Elwood. Even Mr. Harris

said that that “untrained employees shouldn’t be on scissor lifts.”

(CCR 7:863).

               h) No evidence that additional personnel were
                  necessary

     Once again, this case is different from Elwood. Here, Rollins

used additional personnel on the 21st without incident, and let them

finish the work. (CCR 4:297). But on the 22d, the order of “get up




                                 50
there” forced him upon the lift, when using his subordinates would

be the safer choice.

             i) No obligation to dissuade

     Finally, this case is different from Elwood and its companions

in that Rollins’ superiors were commanding him to take the

dangerous action. They were not watching him do it on his own and

failing to “dissuade” him. They were “persuading” him to do it under

threat of insubordination and possible termination. As the Texas

Supreme Court Stated in Austin: “an employee always has the option

to decline to perform an assigned task and incur the consequences

of that decision.” 465 S.W.3d at 214 (citing in jest, the long abrogated

McKee v. Patterson, 153 Tex. 517, 525, 271 S.W.2d 391 (1954)

abrogated by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.

1978)). Even McKee recognized that its “no duty” rule had limits:

           This extreme common law view, which traded on the
     economic necessity of the workman to earn a living, resulted in
     the adoption of Liability and Compensation Acts to offer a
     measure of certain protection to the workman. The plaintiff here
     collected benefits under the Workmen's Compensation Act,
     Vernon's Ann.Civ.St. art. 8306 et seq. In cases where
     legislation has not abolished the defense of assumed risk,
     the common law rule still prevails in this country in master
     and servant relationships.

Id. at 396 (emphasis added).

                                  51
     In sum, the trial court either misread or misapplied the law and

facts on the concept of “duty.” There are several duties which apply

here: 1) the exercise of ordinary care; 2) the duty to provide

assistance; 3) the duty to provide adequate supervision; and 4) the

duty to provide proper training. Texas College commanded Rollins to

“get up there” without any training, and more importantly, while

knowing he had been suffering “black-outs.”         This simple act

breached all of these duties.

  2. Proximate Cause

             a) Generally

     In Kroger Co. v. Milanes, No. 14-13-00873-CV, 2015 WL

4594098 (Tex. App. July 30, 2015) the Court affirmed a lower court

judgment against the employer and summarized the requirements of

causation in a non-subscriber case:

          Proximate cause consists of two elements: cause in fact
     and foreseeability. Del Lago Partners, Inc., 307 S.W.3d at 774.
          Cause in fact means that the defendant's act or
     omission was a substantial factor in bringing about the
     injury, which would not otherwise have occurred. Western
     Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005).
     Cause in fact is not shown if the defendant's conduct did no
     more than furnish a condition that made the injury possible. Id.
     The second element of proximate cause, foreseeability,
     requires that a person of ordinary intelligence should have
     anticipated the danger created by the negligent act or

                                 52
     omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d
     472, 478 (Tex.1995). These elements cannot be established by
     mere conjecture, guess, or speculation. Id. at 477. Proximate
     cause may, however, be established by direct or
     circumstantial evidence and the reasonable inferences
     drawn from that evidence. Pilgrim's Pride Corp. v. Smoak, 134
     S.W.3d 880, 889 (Tex.App.–Texarkana 2004, pet. denied) (citing
     McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903
     (Tex.1980)).

Id. at *11 (emphasis added).

     The negligent order was the cause in fact of the fall. Here it was

more than a substantial factor in causing Mr. Rollins to fall. Mr.

Rollins swore that he “would not have gotten on the lift” but for the

order by Brackens and Harris. (CCR 25:4134).      By simple logic, the

fall would not have occurred had he not been ordered to “get up

there.”

     The accident was foreseeable here.      It simply defies logic to

believe that Brackens should not have foreseen the possibility of

Rollins falling. Rollins informed both Harris and Brackens that he

“was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT

(CCR 25:4132).    They had removed him from driving duty (CCR

25:4132), presumably to prevent an accident.

     Certainly an order to engage in a negligent activity can be the

proximate cause of an accident.    In Halliburton Oil Well Cementing

                                  53
Co. v. Groves, 308 S.W.2d 919 (Tex. Civ. App. 1957), writ refused

NRE, the court found that a supervisor’s negligent direction to an

employee to apply an excessive “pull” on some tubing was a

“proximate cause” of the crown block breaking – an event which killed

the employee.     Id. at 933.     Similarly, an order to “get up there”

knowing the possibility of a black out, can be the proximate cause of

a fall.

              b) Medical Causation

      It is assumed that Appellees worked so hard at the trial court

level to exclude the doctor’s reports because they knew they needed

to defeat Rollins on the issue of medical causation.        They tried

mightily to eliminate proof that the fall caused Rollins’ neck injury.

But they succeeded only in excluding the letter from Rollins’ treating

physician Samuel Barnett, MD. They did this by convincing the lower

court that the letter had not been properly authenticated. However,

it was properly authenticated as will be shown below in the next

argument. Nonetheless, there are two reasons why excluding Dr.

Barnett’s letter is irrelevant.

      First, in a personal injury and fall case, lay testimony on

injury causation is sufficient:

                                    54
           …non-expert evidence may be sufficient to support a
     finding of causation in cases where both the occurrence and the
     medical conditions complained of are such that the general
     experience and common sense of lay persons are sufficient to
     evaluate the conditions and whether they were probably caused
     by the occurrence.
City of Dallas v. Furgason, 05-06-00875-CV, 2007 WL 2703134, at

*1 (Tex. App.—Dallas Sept. 18, 2007, no pet.). Texas law is replete

with cases on the topic. See e.g. Morgan v. Compugraphic Corp., 675

S.W.2d 729, 733 (Tex. 1984) (temporal connection to time of exposure

and physical proximity to fumes per testimony of plaintiff was

competent evidence that her alleged injuries were caused by the

release of chemicals.); Figueroa v. Davis, 318 S.W.3d 53, 61 (Tex.

App.—Houston [1st Dist.] 2010, no pet.) (plaintiff’s testimony about

broken teeth after car accident sufficient); Cotton Patch Cafe v.

McCarty, 2-05-082-CV, 2006 WL 563307, at *3 (Tex. App.—Fort

Worth Mar. 9, 2006, no pet.) (trip and fall case with plaintiff

testimony about injuries and doctor visits sufficient); Dawson v.

Briggs, 107 S.W.3d 739, 754 (Tex. App.—Fort Worth 2003, no pet.)

(plaintiff’s lay testimony about jaw problems after wreck was

sufficient).

     In Grey Wolf Drilling Co., L.P. v. Boutte, 154 S.W.3d 725, 744

(Tex. App.—Houston [14th Dist.] 2004), review granted, judgment
                                55
vacated, and remanded by agreement (Mar. 4, 2005) the court stated

that lay testimony which establishes a sequence of events

providing a “strong, logically traceable connection between the

event and the condition is sufficient proof of causation.”

     Here, Rollins’ affidavit indicated that as a result of the accident

he “ended up having to have major surgery.” (CCR 25:4134). Rollins’

affidavit also indicates that immediately after the fall, he “could not

move at first” and “eventually” rolled over onto his feet.        (CCR

25:4134). Rollins described the fall as “I just fell flat on my back and

my neck.” (CCR 4:311).     Dr. Barnett’s surgery discharge summary

in the medical records filed by Texas College shows that his major

neck surgery happened on October 26, just a few days after the

October 22nd fall. (CCR 8:1050). The records also indicate a primary

diagnoses of “syncope and collapse.” (CCR 8:983). Certainly this is a

strong, logically traceable connection between the event and the

condition.

     Second, the attempt at excluding the Dr. Reports failed. The

trial court denied the motion to strike them, and they contained the

very same information appellees were seeking to exclude by keeping

out the Barnett letter. The disclosure responses which incorporated

                                  56
the reports, were specifically used as summary judgment evidence.

(CCR 2:109) (See reference to summary judgment exhibit “H” -

Plaintiffs' Fifth Supplemental Responses to Requests for Disclosure.).

The language of the reports leaves little doubt as to medical

causation:

          Correspondence on July 18, 2014, by Dr. Barnett includes
     the opinion that there was reasonable medical probability
     that Mr. Rollins suffered an acute herniated disc at C4-C5
     and spinal cord contusion caused by the fall on October 22,
     2013, and that he would have chronic pain in his neck and
     spinal cord dysfunction as a result of the injury.

REPORT OF GILBERT MARTINEZ PHD (CCR 6:611).

     In summary, there is ample evidence of duty, breach of duty,

and causation. It was all still before the court after the onslaught of

exclusionary rulings.   The summary judgment granted in favor of

Texas College should be reversed.

     ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN

     Even if one assumes that somehow more evidence is needed to

defeat Texas College’s summary judgment motion, more evidence can

be considered (see argument, infra). The trial court made numerous

basic errors when it granted Texas College’s Motion to Strike

Evidence (and related references in appellants’ response). Since the


                                  57
order itself contains most of the text of what was stricken, it serves

as an easy guide to follow with the argument. It is contained in the

appendix as “FEB 9 ORDER ON TC EVIDENCE OBJECTIONS.”

        1. Bracken’s Deposition Excerpts

     A brief review of page 2 of the order indicates that the court

struck evidence to which Mr. Brackens was qualified to speak. He

indicated that he had received “scissor lift” training in his deposition.

(CCR 2:162).      Moreover, he is simply reading the conditions

prescribed by a regulation and then stating (with his personal

knowledge) that the conditions required “did not take place.” (CCR

24: 3926).

  2. Owner’s Manual

     This was excluded on page 3 of the order. Perhaps it was not

noticed, but the manual was authenticated during Mike Frazier’s

Deposition:

     Q. (BY MR. SIGMON) Have you ever seen this document
        before?
     A. sure.
     Q. Okay. What is this?
     A. This is the operation and safety manual that's inside the
        scissor lift.




                                   58
(CCR 20:3319). It is certainly relevant and Mr. Frazier is certainly

qualified. He is the “Manager of A-1 Rent All.” (CCR 2:172). It should

not have been excluded.

  3. Rollins Affidavit

     Parts of the Rollins affidavit were redacted based upon the order

of the Court.   Although the redacted version was plenty to support

the statement of facts set forth in this brief, some additional relevant

material should not have been taken from the affidavit.

     The objection labelled “D-3” on page 4-5 of the order should not

have been sustained. Mr. Rollins is perfectly qualified to authenticate

the excuses given to him by his Doctors.

     The objection labelled “D-6” on page 5 of the order should not

have been sustained. Mr. Rollins is qualified to testify as to what his

doctor told him, and it is clearly admissible hearsay, because it is a

statement made for the purpose of medical diagnoses and is

admissible pursuant to 803(4) of the Texas Rules of Evidence.

     The objection labelled “D-7” on page 5 of the order should not

have been sustained. It is not hearsay. He is simply stating what he

was directed to do. Moreover, he is qualified to authenticate a note

given to him by his doctor.

                                  59
  4. Barnett Letter

     The objection labelled “D-15” on page 7 of the order should not

have been sustained. This is Mr. Rollins’ authentication of the letter

from Dr. Barnett, the non-paid, treating physician who performed the

surgery on Rollins. In its motion to exclude, Texas College did not

object to the effort of Mr. Rollins to authenticate it. That is no doubt

because they were aware of the significant body of law allowing lay

witnesses to identify and authenticate correspondence.         See, e.g.

Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 177

(Tex. 2004) (Dunwoody's affidavit also authenticates correspondence

that passed between the condemnors and the landowners).

Moreover, the bar on authentication is very low. Rule 901 of the

Texas Rules of Evidence merely requires that a witness with

knowledge testify “that an item is what it is claimed to be.” Tex. R.

Ev. 901. Rollins’ affidavit clearly does that with respect to the letter:

          My surgeon’s letter to my lawyer describing my injury is
     attached to my affidavit as Exhibit D. I have reviewed this
     document with my lawyer and I am familiar with my surgeon's
     opinion. He provided the letter in connection with this case.

ROLLINS AFFIDAVIT (CCR 7:888).




                                   60
     Texas College’s only objection to the Barnett Letter is a stock

objection that does not apply.    The objection in its entirety is as

follows:

           This portion within Section 6 of Mr. Rollins' affidavit
     should be stricken and not considered by the Court because the
     information is hearsay. The letter attached to Rollins'
     affidavit as Exhibit D is incompetent hearsay for which no
     exception applies. Mr. Rollins' sole purpose for including such
     records is to prove the truth of the matter asserted by Mr.
     Rollins. Therefore, Texas College's objection to this portion of
     Mr. Rollins' affidavit and the exhibit referenced should be
     sustained, and this portion and the exhibit stricken and
     disregarded by the Court.
(CCR 22:3678) (emphasis added). The objection is simply erroneous

and inapplicable. Rule 803(4) specifically reads as follows:

     (4) Statement Made for Medical Diagnosis or Treatment. A
     statement that:
           (A) is made for--and is reasonably pertinent to--medical
           diagnosis or treatment; and
           (B) describes medical history; past or present symptoms or
           sensations; their inception; or their general cause.

TX R EVID Rule 803. A simple review of the letter indicates that it is

precisely what the rule applies to. See BARNETT LETTER (in Appendix).

The Barnett letter should not have been excluded.

     THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE

     Appellants sought leave to introduce two pieces of evidence in

its motion to re-open the evidence. However, they now complain only

                                 61
about the trial court’s refusal to consider the Barnett Affidavit. See

BARNET AFFIDAVIT (in Appendix). Dr. Barnett's sworn affidavit offers

nearly the exact same information that is contained in the Barnett

Letter. See BARNETT LETTER (in Appendix).        Thus, this appellate

request is superfluous in the event that this Court agrees that the

letter was properly authenticated.     Moreover, since the opinions of

Dr. Barnett were also summarized by Dr. Gonzales in his report, this

argument is, in reality, a fourth tier of insurance. For this issue to

be decisive, this Court would first have to: (1) reject Rollins’ lay

testimony combined with the medical records already in evidence, (2)

reject the use of Dr. Gonzales report, and (3) rule that Rollins was

unqualified to authenticate correspondence about his own treatment

from his treating physician. Nevertheless, in the event of such a slim

possibility, this Court should then concern itself with fairness - not

technicalities.

     A trial court may permit a party to offer other additional

evidence when it "clearly appears to be necessary to the due

administration of justice." Tex. R. Civ. P. 270. In determining whether

to grant a motion to reopen, the trial court considers whether: (1) the

moving party showed due diligence in obtaining the evidence, (2) the

                                  62
proffered evidence is decisive, (3) reception of such evidence will

cause undue delay, and (4) the Court's refusal will cause an injustice.

Word of Faith World Outreach v. Oechsner, 669 S.W.2d 364, 366-67

(Tex.App.-Dallas 1984, no writ). The trial court should exercise its

discretion liberally "in the interest of permitting both sides to fully

develop the case in the interest of justice." Id. at 367.

     The subject matter of the Barnett letter/affidavit is highly

relevant, material, and (as noted above) potentially decisive. There

was no lack of diligence in securing this evidence, rather, the

evidence was offered as a narrative opinion letter early on. It was

properly attached to, and authenticated by Rollins’ summary

judgment affidavit.

     It was shortly after the letter was stricken that Rollins’ counsel

sought to cure the alleged (but non-existent) defect by reformulating

it as an affidavit and obtaining the Doctor’s oath. It was provided to

the court in a motion for reconsideration, and as a motion to reopen.

     Reopening a case for the reception of additional evidence is

discretionary. See McRoy v. Riverlake Country Club, Inc., 426 S.W.2d

299 (Tex.Civ.App. -Dallas 1968). The discretion is to be liberally

exercised, particularly if doing so is in the interest of justice. Id. See

                                   63
also, Hill v. Melton, 311 S. W.2d 496 (Tex.Civ.App.--Dallas 1958, writ

dism'd.) (Court stating there are occasions where it may be the court's

duty to grant the motion to reopen). Appellees would not have been

prejudiced if the trial court had granted appellants’ request.     Dr.

Barnett's opinion was known to Texas College. The affidavit format

is virtually identical in substance to the letter disclosed to defense

counsel during discovery.

     Appellants have meritorious claims in this non-subscriber case

that should have survived summary judgment. If there was a defect,

the affidavit cured it.   The trial court should have exercised its

discretion flexibly "to obtain a just, fair, equitable and impartial

adjudication of the rights of litigants under established principles of

substantive law." Tex. R. Civ. P. 1. See also In re Hawk, 5 S.W.3d

874 (Tex.App.-Houston [14 Dist.] 1999).

3.   THE TRIAL COURT ERRED IN GRANTING MPF’S MOTION
     FOR SUMMARY JUDGMENT
     The rental company should not “get a pass” for renting

dangerous construction equipment without including operator safety

manuals.




                                  64
     THE ELEMENTS AND THE EVIDENCE

        1. Duty

     In Lawrence v. Coastal Marine Serv. of Texas, Inc., 983 S.W.2d

757 (Tex. App. 1997) the Court of Appeals reversed a directed defense

verdict in a case involving a death due to improper operation of a

crane. Among the significant facts of the case, the court described

the following:

           …there was no operator's manual present, and, that the
     operator's manual that should have been in the crane contained
     specific instructions to avoid moving the crane until all
     personnel are clear. Wiethorn further testified that there was no
     load chart to comply with the American National Standards
     Institute (ANSI) within the crane. The operator's manual was
     required by OSHA and ANSI to be kept in the cab at all
     times. According to Wiethorn, OSHA and ANSI standards
     applied to this particular crane and Coastal could have easily
     provided the people who worked with the crane with the
     pertinent OSHA standards regarding its operation. He testified
     that proper operation of a crane calls for the operator to be
     thoroughly conversant with the crane's operating manual,
     which the crane operator could not have done in this case
     because it was not present in the cab.

Id. at 760-61 (emphasis added).        The court indicated that even

though the general contractor [Coastal] did not control the crane,

“Coastal had a responsibility to ensure a safe and suitable crane…”

Id. at 761.      See also Goodwin v. Bluffton Coll., 2004-Ohio-2223

(material issue of fact as to whether company's breach of duty to

                                  65
provide   college    with   safety   instruction   manuals   and   safety

components necessary for proper erection of scaffolding was

proximate cause of student's death precluded summary judgment.).

     Here the situation is similar: although A-1 (MPF) did not control

the situation in the gymnasium on the day Rollins was injured, they

had a duty to provide a “safe and suitable” scissor lift.

     A scissor lift is a piece of heavy machinery governed by CFR

1926.454 of the Occupational Health and Safety Act (“OSHA”) as a

"mobile scaffold".     The American National Standards Institute

("ANSI") safety standard A92.6, AMERICAN NATIONAL STANDARD           FOR

SELF-PROPELLED ELEVATING WORK PLATFORMS, (CCR 21:3430-3573)

also addresses scissor lifts and the care they require. In Texas:

     The relevance of an OSHA standard is that it, and the ANSI
     standards which form the basis for most OSHA standards,
     are the cumulative wisdom of the industry on what is safe and
     what is unsafe. While OSHA was written to protect employees,
     an unsafe practice for an employee applies equally well to a
     customer who legitimately finds himself in the same geographic
     space as the employee. Safety principles don't change
     depending on whether the victim is an employee, a customer, or
     a passerby. Therefore it has relevance to the standard of care.
     It doesn't establish negligence per se, and it does not create a
     separate cause of action. Melerine v. Avondale Shipyards, Inc.,
     659 F.2d 706 (5th Cir.1981); Jeter v. St. Regis Paper Co., 507
     F.2d 973 (5th Cir.1975). But it may be relevant evidence. …. All
     of appellants' authorities deal with causes of action brought for
     violations of those OSHA regulations. In the case at bar, no such

                                     66
     recovery was sought by appellee. Rather, the evidence was
     introduced for the purpose of establishing a standard of
     conduct to serve as a basis for a negligence cause of action ...
     the testimony concerning the OSHA regulations only provided
     statutory reinforcement of the obvious common-law standard.

Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718 (Tex.App. -San Antonio

1995).

     ANSI A92.6 part 6.3.1 requires the owner to provide the

“operating manual” with each “rental” delivery. (CCR 21:3454).

(emphasis added).    The manual begins by reminding us that the

manual itself is a very important "tool" and "keep it with the

machine at all times". JLG OWNER'S MANUAL "FOREWORD.”

(CCR 23:3766) (emphasis added). Nothing more need be said. There

is a duty.

  2. Breach of duty

     Here, there was no owner’s manual on board the lift.

(CCR 2:162).    Rollins swore that MFP (A-1) “did not offer us

training” or “familiarize us with the lift.”          (CCR 25:4133)

(emphasis added). The MPF [A-1] delivery crew did not bother to

come in and train Rollins, even though he inquired. They told him

that Texas College already “knew how to use the lift.”      Id.   (CCR

25:4143). Rollins stated that “A-1 did not offer us training nor did it

                                  67
familiarize us with the lift.   The person from A·1 just came and

delivered the machine and left.” Id. Of course the “machine” had no

manual. The duty was breached.

  3. Proximate Cause

     Rollins “hadn’t been trained” and “didn’t know how to operate

it.) (CCR 25:4134) Mr. Harris, agreed that “untrained employees

shouldn’t be on scissor lifts.” (CCR 7:863). When asked about what

training could have made a difference, Mr. Rollins testified that he

“would have been trained to know how to use it and to get on and off

the proper way…” (CCR 4:316-317).

     Most importantly, section 2.1 of the manual reads:

          The aerial platform is a personnel handling device; so it is
     necessary that it be operated and maintained only by trained
     personnel.
          Persons under the influence of drugs or alcohol or who are
     subject to seizures, dizziness or loss of physical control
     must not operate this machine.

JLG OWNER'S MANUAL at 2-1 (CR 23:3341) (uncorrected record). Mr.

Rollins indicated that “If Mr. Brackens had looked at the owner’s

manual and informed me that a person with blackouts shouldn’t be

on a lift, I would not have gotten on.”     (CCR 25:4135).    This is

certainly more than a scintilla of evidence on proximate cause.


                                  68
     ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN

       1. Owner’s Manual

     The objections to the admission of the owner’s manual is

ludicrous. First and foremost, it is part of the equipment that they

admittedly rented. Second, a copy (as asserted by MPF) was already

in their possession. It was produced at Mike Frazier’s Deposition and

properly authenticated:

     (Plaintiff's Exhibit 4 marked.)
     MR. SIGMON: Let me hand you what' a being marked as
        Plaintiff's 4.
     THE WITNESS: I'm sorry. Closing these so I have some room.
        Okay, sir.
     Q. (BY MR. SIGMON) Have you ever seen this document before?
     A. sure.
     Q. Okay. What is this?
     A. This is the operation and safety manual that's inside
        the scissor lift.
     Q. Okay. So this is an operation and safety manual from JLG,
        correct?
     A. Yes.
     Q. JLG is the manufacturer of the model 1930es right?
     A. Yes.
     Q, Which is the same model that you rented to Texas College
        that is involved in this lawsuit, right?
     A. Yes.
     Q, Now, on the front page down in the left-hand portion of the
        page, you see four letters? You see those four letters?
     A. The AN -- the ANI -- ANSI?
     Q. Yes,
     A. Yes.
     Q, Do you see that? And you've already identified what ANSI
        stands for, right?

                                 69
     A. Yes.
     Q. And what is it again?
     A. American National Safety Institute.
     Q. So you'd agree with me that the American National Safety
        Institute has put its logo on the front of this owner's
        manual, right?
     MR. GEDDIE: Objection, form.
     A. It's yes, it's on there.

(CCR 20:3318-3319). As one can see, the objection that “plaintiffs

have failed to establish its authenticity or relevance, or lay any proper

predicate for the admissibility of same, either through a qualified

witness or otherwise,” as set forth in MPF’s filing (CCR 22:3720) is

baseless.

     Moreover, one can look at the objections filed by MPF

(CCR 22:3718-3725) and discern that they are (in large part) stock

objections, edited and filed without any supporting evidence, and in

many cases lacking detail. MPF objected to the manual on the basis

that it was not produced timely in violation of Texas Rule of Civil

Procedure 193.6(a). (CCR 22:3719-3720). But the objection is a

“stock objection,” taken off the shelf and pressed without any

supporting evidence or explanation. Bare stock objections filed in

writing - with no oral hearing, no evidence, or explanation - should




                                   70
be given short shrift by this Court. As shown in the argument above,

the manual is probative. It was authenticated. It is admissible.

         2. Rollins Affidavit

     MPF objected to the Rollins affidavit on the grounds that it was

a sham and should “be stricken in its entirety. (CCR 22:3720).

However the trial court did not exclude the entire affidavit, but rather

painstakingly edited it in response to Texas College’s objections.

     MPF alternatively asked the court to, at a minimum, exclude

“the statements that directly contradict” his testimony. Id. Because

MPF sought an alternative form of relief, the objection is multifarious.

Compounding the confusion, the order is vague. It is simply a check

line with a check mark in it, placed in the “sustained” column. See

FEB 9 ORDER   ON   MPF EVIDENCE OBJECTIONS p. 2 (CCR 24:3937) (also

in appendix). There is no way for this Court to discern which one of

the alternative forms of relief was granted by looking solely at the

order.   However, because the trial court did edit the affidavit to

exclude the testimony referenced in the alternative plea (CCR

24:3930-3931) (Texas College objection 13 sustained), one can

discern that the trial court did not strike the affidavit entirely, but



                                  71
granted the lesser relief. Thus, this Court should consider the entire

affidavit (subject to Texas College objection 13) as to MPF.

  3. Thorpe Affidavit

     Appellees filed a joint motion to strike the affidavit of appellants’

aerial lift safety expert, Burt Thorpe.     See THORPE AFFIDAVIT (CR

23:3402-3409) (original record) (also in appendix).        Tellingly, the

motion to strike the affidavit did not emphasize unfair surprise or

prejudice. That is because there was none.

     The issues presented in the Motion were: whether Plaintiffs

timely disclosed Burt Thorpe; whether the disclosure was sufficient;

and whether Plaintiffs' supplemental designations passed muster of

the discovery rules and in no way constitute unfair surprise,

prejudice or trial by ambush. See Tex. R. Civ. P. 193.6(b).

     It was undisputed that the trial court's scheduling order

required Plaintiffs' to designate all experts by October 16, 2014.

Plaintiffs met the deadline with their October 13, 2014 Fourth

Supplemental Disclosure adding Burt Thorpe as a safety expert.

(CCR 6:710-718) Appellees argued that the supplemental October 13

disclosure was inadequate and therefore untimely per Rule 194.2(f).



                                   72
     Appellees cited Cunningham v. Columbia/St. David's Healthcare

System, L.P., 185S.W.3d 7 (Tex.App.-Austin 2005) for support. In

Cunningham, the plaintiff was required to designate all experts by

June 29, 2004. Id. at 11. Plaintiff responded to a December 2003

request for disclosure that she had not yet determined "any testifying

expert witnesses" and would supplement. Id. The June disclosure

deadline passed without plaintiff supplementing her response (i.e.

she provided no information about her expert). Id. On September 7,

2004 (i.e. 90 days later) plaintiff attached her expert's affidavit for the

first time, attempting to rely upon it as proof that her claims should

survive summary judgment. Id. at 11. The appeals court affirmed

defendant's motion to strike on the grounds that plaintiff had herself

conceded the designation was untimely and that she failed to satisfy

her burden of showing either good cause or a lack of unfair surprise

or prejudice. Id. at 13.

     The facts here are distinguishable: at the time Rollins disclosed

Burt Thorpe in October, he provided to appellees all of the

requirements of 194.2(f) including: his name, address and telephone

number; the subject matter on which he was to testify; the general

substance of his mental impressions and opinions; and his current

                                    73
resume.   See PLAINTIFFS' FOURTH SUPPLEMENTAL DISCLOSURE at 6-7

(CCR 6:710-718). At the time of the disclosure, Plaintiffs expert had

not been provided any "documents, tangible things, reports, models

or data compilations" per 194.2(f)(A). In fact, he had only been

retained recently to testify about issues pertaining to safety and the

lack thereof - not on medical or damages issues.       The difference

between the substance of Plaintiffs' disclosure of Burt Thorpe in this

matter, (timely per the scheduling order) and the complete lack of

response by the plaintiff in Cunningham is clear. The court in

Cunningham was absolutely correct in its judgment that the plaintiff

had not met her burden. There was no evidence of her expert's utter

existence prior to her summary judgment response, which is the

epitome of "unfair surprise"- particularly in the context of a

dispositive proceeding. Id. at 14. Here, Rollins met the initial

requirement of a timely disclosure per the rules and the Court's

Scheduling Order when he designated Mr. Thorpe on October 13.

     Defendants received fair notice of Mr. Thorpe's participation as

an expert; and were given the subject matter of his testimony, thus

refuting any claim of unfair surprise. See Gutierrez v. Gutierrez, 86

S.W.3d 729 (Tex.App. -El Paso 2002).

                                 74
  4. The ANSI Standard and "Statement of Best Practices”

     During the course of the proceedings, appellants introduced the

American National Standards Institute ("ANSI") safety standard

A92.6, AMERICAN NATIONAL STANDARD          FOR   SELF-PROPELLED ELEVATING

WORK PLATFORMS, (CCR 21:3430-3573) and ANSI’s STATEMENT OF BEST

PRACTICES   OF   GENERAL TRAINING   AND   FAMILIARIZATION   FOR   AERIAL WORK

PLATFORM EQUIPMENT, February 2010 (CCR 20:3215-3234).

     MPF objected to these documents claiming that they were not

authenticated, not timely disclosed, and irrelevant. Ironically, with

respect to ANSI 92.6, MPF itself produced the same text on 6/26/14

in response to Plaintiffs’ written request for production. (SR 13).

     Both standards are discussed in the Thorpe affidavit. They are

referenced in response to requests for disclosure regarding Mr.

Thorpe’s testimony.      They are relevant.       Although the trial court

sustained the objections, it should not have. Appellant submitted

the matters requesting “judicial notice of the Code of Federal

Regulations, OSHA and ANSI provisions cited” therein, and gave

“notice of their intent to rely” on them.           (CCR 20:3264).       See,

Daugherty v. S. Pac. Transp. Co., 772 S.W.2d 81 (Tex. 1989) wherein

the Texas Supreme Court held that: (1) a court may take judicial

                                     75
notice of OSHA regulations without such regulations being included

in the pleadings, and (2) that the trial court committed reversible

error by not considering the OSHA regulation. See also Tex. R. Evid.

201. It bears repeating that ANSI standards “form the basis for most

OSHA standards.” Seale, 904 S.W.2d at 720. Since OSHA adopts

ANSI standards as its standards, the court was duty bound under

Rule 201 to take notice.

     THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE

     Appellants incorporate by reference the same argument made

as to Texas College.

                    CONCLUSION AND PRAYER


     Wherefore, Appellants pray that this Court: (1) reverse the trial

court’s order granting summary judgment in favor of Texas College;

(2) reverse the trial court’s order granting summary judgment in favor

of MPF Investments, LLC; and (3) remand the case for further

proceedings. Also in the interest of justice and clarity: (4) reverse the

orders (a) denying the motion to reopen the evidence, (b) striking the

expert designation of Burt Thorpe, and to the extent argued in this



                                   76
brief, granting (c) Texas College’s evidentiary objections and (d) MPF’s

evidentiary objections.

                                 Respectfully submitted,

                                 /s/ Ernesto D. Sigmon

                                 Ernesto D. Sigmon
                                 State Bar No. 24010397
                                 LAW OFFICES OF ERNESTO D.
                                 SIGMON
                                 WALKER SIGMON LAW
                                 416 West Saulnier Street
                                 Houston, Texas 77019
                                 214/395-1546 (Telephone)
                                 713/485-6056 (Facsimile)
                                 esigmon@esigmon.com

                                 ATTORNEY FOR APPELLANTS,
                                 GARRY L. ROLLINS AND CARLA D.
                                 ROLLINS




                                  77
                 CERTIFICATE OF COMPLIANCE
     I certify that this document was produced on a computer using

Microsoft Word 2013 and contains 14,980 words, as determined by

the computer software’s word-count function, excluding the sections

of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).



     /s/ Ernesto D. Sigmon



     Ernesto D. Sigmon

     State Bar No. 24010397

     LAW OFFICES OF ERNESTO D. SIGMON

     WALKER SIGMON LAW

     416 West Saulnier Street

     Houston, Texas 77019

     214/395-1546 (Telephone)

     713/485-6056 (Facsimile)

     esigmon@esigmon.com

     ATTORNEY FOR APPELLANTS,

     GARRY L. ROLLINS AND CARLA D. ROLLINS




                                 78
                   CERTIFICATE OF SERVICE
     I certify that on October 15, 2015 I served a copy of Appellants’

Brief and Appendix on the parties listed below by electronic service

and that he electronic transmission was reported as complete. My e-

mail address is esigmon@esigmon.com.



     /s/ Ernesto D. Sigmon

     Ernesto D. Sigmon
     State Bar No. 24010397
     SIGMON LAW, PLLC
     2929 Allen Parkway, Suite 200
     Houston, Texas 77019
     214/395-1546 (Telephone)
     713/485-6056 (Facsimile)
     esigmon@esigmon.com

     ATTORNEY FOR APPELLANTS,
     GARRY L. ROLLINS AND CARLA D. ROLLINS

     Greg Smith
     Texas Bar No. 18600600
     Nolan D. Smith
     Texas Bar No. 24075632
     RAMEY & FLOCK, P.C.
     100 E. Ferguson, Suite 500
     Tyler, Texas 75702
     Telephone: 903-597-3301
     Facsimile: 903-597-2413

     Mr. Trey Yarbrough
     YARBROUGH WILCOX GUNTER, PLLC
     100 East Ferguson, Suite 1015
     Tyler, Texas 75702
                                  79
Fax: 903.595.0191

Levon G. Hovnatanian
Texas Bar No. 10059825
hovnatanian@mdjwlaw.com
lonergan@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile

Todd M. Lonergan
Texas Bar No. 12513700
lonergan@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile

Ryan K. Geddie
Texas Bar No. 24055541
geddie@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile




                         80
                      No. 12-15-00121-CV
__________________________________________________________________

                   IN THE COURT OF APPEALS
            FOR THE TWELFTH DISTRICT OF TEXAS
                          TYLER, TEXAS
__________________________________________________________________

            GARRY L. ROLLINS AND CARLA D. ROLLINS,
                           Appellants

                                    V.

                      TEXAS COLLEGE AND
        MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
                             Appellees
__________________________________________________________________

                    APPELLANTS’ APPENDIX
__________________________________________________________________

Trial Court Orders

     February 19 Order Denying Motion to Strike Doctor Reports……….. 3
     February 19 Order Striking Thorpe Testimony…………………………. 4
     February 19 Order on MPF Evidence Objections……………………….. 5
     February 19 Order on TC Evidence Objections…………………………. 6
     February 19 Order Granting MPF Summary Judgment…………….... 7
     February 10 Order Granting TC Summary Judgment……………..…. 8
     Order Clarifying Objections………………………………………………….. 9
     Order Denying Reconsideration of TC Summary Judgment…………. 12
     Order Denying Reconsideration of MPG Summary Judgement…….. 13
     Order Denying Motion to Reopen Evidence……………………………… 14

Pleadings

     6th Amended Petition………………………………………………………….. 15
     7th Amended Petition………………………………………………………….. 24
     8th Amended Petition………………………………………………………….. 34


(contents continued on next page)
Key Documents

        Full Rollins Affidavit…………………………………………………………… 42
        Redacted Rollins Affidavit……………………………………………………. 47
        Barnett Letter…………………………………………………………………… 52
        Barnett Affidavit……………………………………………………………….. 54
        Thorpe Affidavit………………………………………………………………… 56

Objections to Evidence

        Texas College’s Objections to Evidence…………………………………… 64
        MPF’s Objections to Evidence………………………………………………. 83


Cases

        Austin v. Kroger………………………………………………………………… 96
        Kroger v. Elwood……………………………………………………………….117
        Kroger v. Milanes………………………………………………………………120
        Lawrence v Coastal Marine Service………………………………………..140
                                   CAUSE N0.13-33153-A


GARRY L. ROLLINS and
CARLA D. ROLLINS

              Plalntlffa,

Vs.                                                                SMITH COUNTY, TEXAS

TEXAS COLLEGE and
MPF INVESTMENTS, LLC D/B/A
"A·1 RENT ALL"

              Defendants,                                          7th JUDICIAL DISTRICT


 ORDER ON DEFENDANTS MPF INVESTMENTS, LLC D/B/A A·1 RENT ALL AND
 TEXAS COLLEGE'S MOTION TO STRIKE EXPERT DESIGNATIONS OF GILBl!!RT
         MARTINEZ, JOE 0. GONZALES, AND THOMAS M. RONEY


THE COURT has considered Defendant's Motion to Strike the Expert Designations of

Giibert Martinez, Joe G. Gonzalez and Thomas M.                  the applicable law, and the
                                                       'lM    K:-tPl:t,,
response from Plalntlf'fs and supporting exhibits! Having ddne so, the Court Is of the

opinion that the Defendant Is not entitled to the relief sought In its Motion. It Is therefore,


ORDERED, ADJUDGED, and DECREED that the motion Is DENIED.



It Is so ORDERED.




ORDER                                                                                Solo P1g1



                                                                              APPENDIX 3
                                                                                                  Page 3924
                                            CAUSE NO. 13-3353·A

GARRY L. ROLLINS AND                                 §
CARLA D. ROLLINS,                                    §
        Plaintiffs,                                  §
                                                     I
v.                                                   §       SMITH COUNTY, TEXAS
                                                     §
TEXAS COLLEGE, CHRISTIAN                             §
METHODIST EPISCOPAL CHURCH                           §
AND MPF INVESTMENTS, LLC                             §
D/B/A 14A·l RENT ALL",                               §
        Defendant•.                                  §       7TH DISTRICT COURT

         ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A·l RENT
      ALL'S MQTION TO STRIKE EXPERT DESIGNATION OF BURT IHORfE

        The Court has considered Defendant MPF Investments, LLC dlb/a A·l Rent All's

Motion to Strike Expert Designation of Burt Thorpe, Plaintiffs' Response, the pleadings on file,

any additional briefing accepted by the Court, and the applicable law. Having done so, the Court

is of the opinion that Defendant, MPF Investments, LLC d/b/a A· l Rent All, is entitled to the

relief requested. It is therefore,

        ORDERED, ADJUDGED and DECREED that Burt Thorpe shall not testify at trial in this

matter and no opinion testimony from Burt Thorpe will be admined into evidence in this matter

for any purpose.

        It is so ORDERED.

        Sii!led this            of ..........




ORDER GMND'.'\G DEFENDANT MPf !NYESIMENJ. LLC'S
MOTION IO STRJKE EXfERI DESIGNATION OF BURI IHOBPt:                                SOLO PAGE


                                                                               APPENDIX 4
                                                                                                   Page 3923
                                    CAUSE NO. 13-3353-A

GARRY L. ROLLINS AND                            §
CARLA D. ROLLINS,                               §
    Plaintiffs,                                 §
                                                §
v.                                              §          SMITH COUNTY, TEXAS
                                                §
TEXAS COLLEGE, CHRISTIAN                        §
METHODIST EPISCOPAL CHURCH                      §
AND MPF INVESTMENTS, LLC                        §
D/B/A "A·l RENT ALL",                           §
      Defendantl.                               §          7TH DISTRICT COURT

             ORDER ON MPF INVESTMENTS, LLC D/B/A A·l RENT
     ALL'S OBJECTIONS TO PLAINWFS' SUMMABY JypGMENT EVIDENCE

       The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's

Motion to considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's Objections to

Plaintiffs' Summary Judgment Evidence, Plaintiffs' Response to MPF's Summary Judgment and

any responses and replies thereto, the pleadings on file, any additional briefing accepted by the

Court, and the applicable law. Having done so, the Court makes the following rulings on A-1 's

objections:

Evidence                                                         Sustalped                Depleci

       1. Excerpts from the deposition of Mike Frazier

Question at 59: 10

Questions beginning at 60:21

Questions beginning at 61:4 - 14

Questions beginning at 62:4

       6.      The JLG Owner'• Manual Model
               1930-ES (excerpts).




OBDER ON m>F JNYESW&'IIS. LLC D/BJA A-1 RE..''J
6{,VS OB.JECTIONS IO PLAINmfS' SJJMMABY Jtl>GMENI EVIDENCE                        PAGEl


                                                                                 APPENDIX 5
                                                                                                    Page 3936
•




        GARRY L. ROLLINS and                          §
        CARLA D. ROLLINS                              §
                  Plain tlft'1                        §
                                                      §
       vs.                                            §         SMITH COUNTY, TEXAS
                                                      §
       TEXAS COLLEGE and                              §
       CHRISTIAN METHODIST                            I
       EPISCOPAL CHURCH                               I
                                                      I
                        Defendants.                   §         7th JUDICIAL DISTRICT


      ORPER ON DEfENDANI TEXAS COLLEGE'S OBJECTIONS/MOTION TO STRIKE
     EVIDENCE AND BEFEBENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE'S
                      MOTION FOR SUMMARY JUDGMENT

           ON THIS DAY, the Court considered Texas College's Objections/Motion to Strike Evidence

    and References in Plaintiffs' Response to Texas College's Motion for Summary Judgment. After

    reviewing the pleadings on file, hearing any arguments of counsel, and the applicable law, the Court

    hereby makes the following ruliniS on Texas College's objections:

       A. Texas College's objection to Plaintiffs' references to and use of Plaintiffs' Seventh and
           Eighth Amended Petition as summary-judsment proof are hereby:

           Sustained:     v              Overruled:
                                                      ---

       B. Texas College's objections to the following excerpts from the deposition of Roland Brackens
          and the references in Plaintiffs' response to such are hereby:

           Sustained:     ..!            Overruled: _ __



                              Deposition Testimony: 18:4 - 18:2S; 22:1S -
                              23: 14; 24:8 - 24: 11; 24:23 - 2S:6



    ORDER ON DEFE!llDA."'l'T TEXAS COLLEGE'S 0BJECTIONs/MOTION TO STRIKE
    EVIDENCE A.'iD REFERENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE 1 5
    MOTION FOR SUMMARY JlJDGMENT                                                            PAGEi OFIO


                                                                                       APPENDIX 6
                                                                                                           Page 3925
' ..
                                                                                 ....
                                                                          Dis. .ii,,
                                                                                 :·;
                                                                                     .• .    '':CR
                                                                                             ' 'L.r.: K

                                                                         1015 Fte I 9 AH
                                            CAUSE NO. 13-33!3-A           - · ·. ·              0 qI
       GARRY L. ROLLINS AND
                                                                         s              I        •
                                                         §
       CARLA D. ROLLINS,
           Plaintiffs,                                   I                                  a, ·..irv-
                                                         t
       v.                                                §          SMITH COUNTY, TEXAS
                                                         §
       TEXAS COLLEGE, CHRISTIAN                          §
       METHODIST EPISCOPAL CHURCH                        §
       AND MPF INVESTMENTS, LLC                          §
       D/B/A "A·l RENT ALL",                             §
              Defendants.                                §           7TH DISTRICT COURT

              ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A-1 RENT ALL'S
            IRADITIONAL AND NO-EVJDENCE MOTION FOR SUMMABY JUDGMENT

              The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's

       Traditional and No-Evidence Motion for Summary Judgment, Plaintiffs' Response, the pleadings

       on file, the summary judgment evidence, any additional briefing accepted by the Court, and the

       applicable law. Having done so, the Court is of the opinion that Defendant, MPF Investments,

       LLC d/b/a A-1 Rent All, is entitled to summary judiMent as to all of Plaintiffs' claims. It is

       therefore,

              ORDERED, ADJUDGED and DECREED that Plaintiffs' claims and causes of action

       against Defendant MPF Investments, LLC d/b/a A-1 Rent All are dismissed with prejudice, and

       said Defendant's taxable costs are assessed against Plaintiffs.




       OBQER GBANIING DEFE:SDANT MPF I:SVESIMENI. LLC'S
       )IOIION FOR SUM)IARY JUDGMENT                                                                 PAGE I


                                                                                            APPENDIX 7
                                                                                                              Page 3938
                               0                                             0
                                                                                                          . f../: .r.·r)·
                                                                                               '!'""
                                                                                                .;:;, ' l.'. '             .
                                                                                                     I•
                                                                                                      "·\     :    ,........ )'
                                                                                                                       •       ·''\




                                           CAUSE NO. 13-33!3-A                          tO/J   rre                '
   GARRY L. ROLLINS and                              §           IN THE                              I: Alt/(): l/2
   CARLA D. ROLLINS                                  §                                o}'             . /)·· -
             Plaintiffs                              §                                                       -
                                                     §
   vs.                                               §           SMITH COUNTY, TEXAS
                                                     §
   TEXAS COLL.EGE and                                §
   CHRISTIAN METHODIST                               §
   EPISCOPAL CHURCH                                  §
                                                     §
                      Defendants.                    §           7th JUDICIAL DISTRICT


   ORQER GBANTING TEXAS COLLEGE'S MOIION FOR SUMMARX JUQGMENT

         The Court has considered Defendant, Texas College's, Motion for Swnmary Judgment, Plaintiffs'

Response, the             on file, the swnmary judgment evidence, any additional briefing accepted by the

Court, and the applicable law. Having done so, the Court is of the opinion that Defendant, Texas College,

is entitled to sununary judgment as to all of Plaintiffs' claims. It is, therefore,

         ORDERED, ADJUDGED, and DECREED that Plaintiffs' claims and causes of action against

Defendant Texas College are dismissed with prejudice, and said Defendant's taxable costs are assessed

against Plaintiffs.

         It is so ORDERED.


         SIGNED this the               of ......




                                                                                      APPENDIX 8
                                                                                                                            Page 3935
                                        CAUSE NO. 13·33S3-A

GARRY L. ROLLINS AND                               §
CARLA D. ROLLINS,                                  §
Plalndffs,                                         §
                                                   §
v.                                                 §           SMITH COUNTY, TEXAS
                                                   §
TEXAS COLLEGE, CHRISTIAN                           §
METHODIST EPISCOPAL CHURCH                         §
AND MPF INVESTMENTS, LLC                           §
D/B/A "A·1 RENT ALL",                              §
Defendant••                                        §           7TH DISTRICT COURT

     AGREED ORDER CLARIFYING EARLIER ORDER ON TEXAS COLLEGE'S
 OBJECTIONSIMOTION TO STRIKE EVIDENCE AND REFERENCES IN PLAINTIFFS'
            RESPONSE TO MOTION FOR SUMMARY JUDGMENT

         On this day the Court considered Texas College's unopposed motion for entry of an order

clarifying an earlier February 19, 20lS orderof this Courton Texas College's objections and motion to

strike evidence and references in Plaintiffs' Response to Texas College's Motion for Summary

Judgment. After considering the motion, the Court finds that there is the possibility of someconfusion

8S   to the sequence ofrulings in Section D of the prior orderand is ofthe opinion that the motionshould

be granted.

         The Court, therefore, enters the following Order clarifying certain rulings in its February 19,

201S Order on Defendant Texas College's Objections/Motion to Strike Evidence and References in

Plaintiffs' Response to Texas College's Motion for Summary Judgment (hereinafter sometimes "Prior

Order"), and specifically, therulings contained in Section 0 of the PriorOrder:

          1. In Section D, at page 4, the Court overruled DefendantTexas College's objection to the

              particular excerpt from Mr. Rollins' affidavit which reads "(at least I SO Ibs.)," finding

              that the quoted language is 8 personal estimate only.

          2. In Section D, at page S, with respect to the excerpt from Mr. Rollins' affidavit which


ORDER ON DEFENDANT TEXAS COLLEGE'S MonON FOR ENTRV OF ORDER CLARJFVING
EARLIER ORDER ON OBJErnoNSIMonON TO STRIKE. EVID1SCE A;liD REF'1!.RENCES
IS PLAINTIFFS' RESPOSSETO TEXAS COLLEGE'S MOTlO!\l FOR St.:MMARY JUDGMENT                   PAGE 1 Of 3



                                                                                      APPENDIX 9
                                                                                                           PIIOA 4177
         reads, "We were not trained or instructed on proper lifting techniques or given any

         direction for performing a safe lift of the size," the Court sustained Texas College's

         objection as to "We," but otherwise overruled the objection.

     3. In Section D, at page 6, the Court sustained Texas College's objection to that portion of

         an excerpt from Mr. Rollins' affidavit which reads, "Under Mr. Brackens authority at

         Texas College there was never an emphasis on safety or training for any of the work we

         were assigned. While under his supervision and leadership at Texas College, none of the

         employees were ever sent to any kind of safety training sessions or OSHA workshops,"

         With respect to the sentence in the same excerpt which reads, "This kind of thing made

         me and other employees question the school's attitude toward our safety," the Court

         sustained Texas College's objection as to the words "and other employees" but

         overruled the objection as to the remainder of that sentence. The Court redacted the

         portions to which the objections were sustained.

      4. In Section 0, at page 7, with respect to the excerpt from Mr. Rollins' affidavit which

         reads, "Of course, I later ended up having to have major surgery because of my injury,"

         the Court sustained Texas College's objection to the extent of the words "because of my

         injury," but overruled the objection to the remainder of the excerpt.

      5. Other than the objections, or parts thereof, which were overruled by the Court as

         identified in numbers 1 through 4 above, the Court sustained in their entirety Texas

         College's objections to the remaining excerpts from Plaintiffs' summary-judgment

         evidence and response contained in Section D of the Court's order dated February 19,

         2015.

      It is further Ordered that Sections A, B, C and E of the Prior Order do not require any


ORDER ON DEFENDANT TEXAS COLLEGE'S MOTION FOR ENTRY OF ORDER CLARlFYlSG
EARLIER ORDER ON OBJECfJONSlMOTION TO STRIKE EVIDENCE AND REFERENCES
IN PLAINTIFFS' RES POSSE TO TEXAS COLLEGE'S MOTION FOR SUMMARY Jl1>GMENT              PAGE 2 OF 3


                                                                                 APPENDIX 10
                                                                                                    Pace 4178
clarification and are not addressed in this Order.

        This Orderin no way changes the rulings memorialized in the Court's February 19,2015 Order

but is entered for purposes of clarification only.

        IT IS SO ORDERED.

                 SIGNED this   Q      day of...............   ....




Approved:

Is!Emesto Sigmon
Emesto Sigmon
BarNo. 24010397
Attorney for Plaintiffs

lsi Trey Yqrbrouih
Trey Yarbrough
BarNo. 22133.500
Attorney for Defendant TexasCollege




ORDER ON                  TEXAS COLLEGE'S MOTION rOR ENTRY OF ORDER CLARIFYING
EARLIER ORDER ON OBJECfIONst'lOTION TO STRIKE                 AND REFERENCES
IN PLAINTIFFS'              TO TEXAS COLLEGE'S MOTION FOR St:MMARY JUDGMENT           PAGE J OF J


                                                                               APPENDIX 11
                                                                                                     Pan.. .4170
APPENDIX 12
                                      CAUSE NO. 13-33S3-A
                                                                           lOIS       lOAM B: 3S
GARRY L. ROLLINS AND                           §            IN THE DISTRlc;   I                _ ,
CARLA D. ROLLINS,                              §                                      '. \ ,   J



    Plaintiffs,                                §
                                               §
v.                                             §            SMITH COUNTY, TEXAS
                                               §
TEXAS COLLEGE, CHRISTIAN                       §
METHODIST EPISCOPAL CHURCH                     §
AND MPF INVESTMENTS, LLC                       §
D/B/A "A-l RENT ALL",                          §
      Defendant•.                              §            7TH DISTRICT COURT

             ORDER DENYING PLAINTIFFS' MOTION TO RECONSIDER
             THE COURT'S RULING ON DEFENDANT'S TRADITIONAL
             AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

       The Court has considered Plaintiffs' Motion to Reconsider the Court's Ruling on

Defendant's Traditional and No-Evidence Motion for Summary 1udgment, Defendant MPF

Investments, LLC's Response, and any related briefing. Having done so, the Court finds that the

motion should be in all things denied.

       It is, therefore, Ordered that Plaintiffs' Motion to Reconsider the Court's Ruling on

Defendant's Traditional and               Motion for Summary Judgment is denied.
                                           ,
       Signed this J...Q:... day of                   is.                         /




OBDER DENYING PLAcsTIm' MOTION TO RECONSIDER
THE COURT'S RULING ON DEFENDANT'S TRADITIONAL
AND NO.EyIDENCE MOTION FOR SUMMAR)'                                      SOLO PAGE
                                                                           APPENDIX 13
                                                                                                     Page 4180
APPENDIX 14
                                                                                     Electronically Filed
                                                                                     11/10/2014 7 0717 PM
                                                                                     Lois Rogers, Smith County District Clerk
                                                                                     Reviewed By Lana Fields



                                        CAUSE N0.13-3363-A


GARRY L. ROLLINS and                                                        IN THE DISTRICT COURT
CARLA D. ROLLINS

                Plaintiffs,

Vs.                                                                          SMITH COUNTY, TEXAS

TEXAS COLLEGE;
CHRISTIAN METHODIST EPISCOPAL
CHURCH and
MPF INVESTMENTS, LLC D/B/A
"A-1 RENT ALL"
           Defendants,                                                        7th JUDICIAL DISTRICT


                    PLAINTIFFS' SIXTH AMENDED ORIGINAL PETITION



TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),

complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")

and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file

this Sixth Amended Original Petition:

                              DISCOVERY CONTROL PLAN LEVEL

1.       Discovery is being conducted under Level 2 of the Discovery Control Plan

pursuant to Texas Rule of Civil Procedure 190.3.

                                      PARTIES AND SERVICE

2.      Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas

      County, Texas.




PLAINTIFFS' SIXTH AMENDED PETITION
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
                                                                                        APPENDIX 15
                                                                                                                           Page 83
3.      Defendant TC is a Texas Nonprofit corporation with its principal office in Smith

County, Texas and has been served with process through its registered agent Dwight J.

Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered

in this matter through its attorney of record.

4.      Defendant CME is a foreign nonprofit corporation organized under the laws of the

state of Tennessee and was served with process at its principal place of business at

4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181.                                CME has

answered in this matter through its attorney of record.

5.      Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ') is a Texas limited

liability company with its principal office at 2505 S Southeast Loop 323 Tyler, Texas

75701. A-1 has answered in this matter through its attorney of record.

                                         CLAIM FOR RELIEF

6.      Plaintiffs seek monetary relief over $1,000,000. Tex.R.Civ.P. 47(c)(5).

                                                 VENUE

7.      Smith County, Texas is a county of proper venue for this suit in accordance with

Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a

substantial part of the events or omissions giving rise to this cause of action occurred in

Smith County, Texas.

                                                AGENCY

8.      At all times material hereto, Defendants acted by and through actual, apparent,

ostensible, or by estoppel agents, acting within the course and scope of such agency.

                                                  FACTS

9.      Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by

Texas College in the capacity of maintenance technician. Texas College itself operates

PLAINTIFFS' SIXTH AMENDED PETITION                                                                        2
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
                                                                                        APPENDIX 16
                                                                                                              Page 84
under the "supervision, care and ownership" of CME and has rented heavy equipment

"aerial work platforms" from A-1 on various occasions.

10.     Rollins' formal work title was "Maintenance Technician". His office was in the TC

Physical Plant (the "Plant").              Rollins reported to Roland Brackens, the Plant

Superintendent, and to James Harris, Vice President of Business and Finance at TC.

Rollins also supervised a three to four person maintenance crew.                           Rollins' overall

responsibility at TC included general maintenance, light construction, driving detail and

essentially anything else the school required. He was hired to work at TC in 2008.

11.     During September 2013, Rollins was asked by his supervisor to help move some

marble counter tops that were to be installed in the school's Science building. The

slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.

Rollins and one other worker to perform the task with no other assistance-man nor

machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and

suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins

sought emergency medical care because of the incident and was advised not to drive.

Rollins informed agents and employees of TC of his restriction and was subsequently

removed from a TC driving task that he had been performing on Tuesdays and

Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins

from the task.

12.     A few weeks later, sometime during October 2013, the gymnasium ceiling at TC

needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for

Plaintiff Rollins and others to use while doing the repairs.

13.     The Lift is capable of reaching upwards of approximately 20 feet from the ground

and is often accompanied by a safety harness to prevent worker injury. TC did not rent

PLAINTIFFS' SIXTH AMENDED PETITION                                                                        3
Macintosh HD:Users:esigmon:Documents:CASES:Rollins-001 :Pleadings: Rollins Sixth Amended Petition .docx
                                                                                        APPENDIX 17
                                                                                                              Page 85
or purchase a harness for use with the Lift, nor did it purchase or rent any other

personal protective equipment needed to ensure worker safety. Upon information and

belief, A-1 did not offer or suggest that TC purchase or rent personal protective

equipment for use with the Lift nor did it adequately confirm whether TC or its agents

were "qualified personnel" with the training and experience needed to safely operate the

Lift.   Upon information and belief, A-1 did not familiarize Rollins with the Lift and its

operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens

did not check or confirm whether A-1 Rent All included an owner/operator manual with

the Lift as required by its manufacturer, JLG.

14.     On or around October 22, 2013 TC directed Rollins and others to use the Lift "as

is" to make the repairs-minus training or supervision.                     After completing the work,

Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported

the incident to the TC human resources department as required. At the time, Rollins

assumed his fall had been relatively inconsequential as he was able to walk away

unassisted.

15.     Three days later, on or around October 25, 2013, Rollins lost sensation in his

legs and toes and was subsequently admitted to Zale Lipshy University Hospital in

Dallas Texas where he underwent invasive neck surgery.

16.     Rollins is now convalescing at home, unable to walk unassisted and requires

intensive at home physical therapy and care three times a week. He is no longer able

to perform many of the household tasks he once did to assist his wife Carla with the

maintenance and care of their home.

17.     On or around December 6, 2013 Rollins received correspondence from TC

advising him that he would be terminated if he does not return to work within 3 months.

PLAINTIFFS' SIXTH AMENDED PETITION                                                                        4
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                                        CAUSES OF ACTION

TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE

18.     Texas College was Rollins' employer at the time of his avoidable injury and owed

him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's

Compensation and does not carry any sort of insurance for work related injury.

Defendant Texas College breached its duty of care to Rollins. Its breach includes and

is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)

furnish reasonably safe machinery or reasonably safe personal protective equipment for

use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate

help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins

while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff

Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions

by TC constitute negligence and gross negligence.

CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER
EGO, NEGLIGENCE AND GROSS NEGLIGENCE

19.     During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented

to the public through documents on file with the Texas Secretary of State that TC

operates under the "supervision, care and ownership" of CME. CME has and continues

to represent to the general public that TC is one of its "affiliate" educational institutions,

of which there are several.           CME makes extensive reference to TC throughout its

internal documentation and by-laws, and the role it plays in establishing TC policies and

procedures. CME also has a significant "financial relationship" with TC that has been

reported to the IRS.




PLAINTIFFS' SIXTH AMENDED PETITION                                                                        5
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20.     TC acted as CM E's agent at all times relevant to the facts made the basis of this

lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein

and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.

21.     Plaintiffs further allege that CME exercises a measure of control over TC so as to

qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.

22.     CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in

performing services, whether gratuitously or for consideration that CME should

recognize as necessary for the protection of other persons or things.

23.     CME breached its duties by failing to exercise reasonable care to secure Mr.

Rollins' safety while employed at TC and in doing so significantly increased his risk of

harm.     This breach makes CME liable to Plaintiffs vicariously and directly.                            The

foregoing acts and omissions by CME constitute negligence and gross negligence.


MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT
ENTRUSTMENT AND GROSS NEGLIGENCE

24.     MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others as well as a duty to take affirmative action to avoid increasing the

danger from a condition created by its conduct. Defendant MPF breached its duty of

care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that

the Lift was being rented and used by competent and authorized persons; and to act

reasonably and prudently in all manners regarding its rental transaction with TC and the

steps it should have taken to prevent the readily foreseeable harm that the Lift could

cause subsequent users who were either unfit, untrained or incompetent to operate it.



PLAINTIFFS' SIXTH AMENDED PETITION                                                                          6
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The foregoing acts and omissions by MPF constitute negligence, negligent entrustment

and gross negligence.

                                    DAMAGES TO PLAINTIFFS

25.             Defendants' combined negligence has proximately caused damage to

Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which

Plaintiffs pray judgment.

26.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum

jurisdictional limits of this Court. Such damages include, but are not limited to: physical

pain (past and future), physical impairment (past and future), medical expenses (past

and future), loss of earning capacity (past and future), disfigurement (present and

future), loss of income (past and future), emotional distress (past and future), and

mental anguish (past and future).

27.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount

in excess of the minimum jurisdictional limits of this Court. Carla's special damages

include, but are not limited to: loss of consortium (past and future) and loss of

household services (past and future).


                                      EXEMPLARY DAMAGES

28.     Plaintiffs further allege that Defendants' acts and omissions, whether taken

singularly or in combination, were aggravated by the kind of malice and reckless

disregard for which the law allows the imposition of exemplary damages. TC's conduct

amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts


PLAINTIFFS' SIXTH AMENDED PETITION                                                                        7
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to gross negligence as by the laws of Texas. CME is either directly liable for exemplary

damages because of its conduct or liable because of its agent's acts. MPF's conduct

amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,

Plaintiffs seek such exemplary damages against each defendant named herein in an

amount that exceeds the minimum jurisdictional threshold of the Court.


                                              JURY DEMAND

29.     Plaintiffs request that a jury be convened to try the fact issues in this action. A

jury fee has been tendered and accepted by the Smith County District Clerk.


                                                 PRAYER

VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded

damages which are set forth above and which are in the sum in excess of the minimum

jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate

permitted by law, post-judgment interest from the date of judgment until paid at the

highest rate permitted by law, attorney fees, and for such other and further relief, both at

law or in equity, to which Plaintiffs may be justly entitled.


                                 Respectfully submitted,
                                 THE LAW OFFICES OF ERNESTO D. SIGMON

                                 Isl Ernesto D. Sigmon
                                 ERNESTO D. SIGMON
                                 State Bar No. 24010397
                                 5872 Old Jacksonville Highway Suite 624
                                 Tyler, Texas 75703
                                 2141395-1546 (Telephone)
                                 9031944-7496 (Facsimile)

                                 ATTORNEY FOR PLAINTIFFS

PLAINTIFFS' SIXTH AMENDED PETITION                                                                        8
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                                    CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document
has been served on all counsel of record on the 11th day of November 2014 as follows:


VIA EMAIL
Mr. Trey Yarbrough
Yarbrough Wilcox, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
FAX: 903.595.0191

ATTORNEYS FOR DEFENDANT
TEXAS COLLEGE

VIA EMAIL
Wesson H. Tribble
Dan McManus
Tribble, Ross & Wagner
3355 West Alabama Street, Suite 1200
Houston, Texas 77098

ATTORNEYS FOR DEFENDANT
CHRISTIAN METHODIST EPISCOPAL CHURCH

VIA EMAIL
Ryan K. Geddie
Martin, Disiere, Jefferson & Wisdom, LLP
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas I 75248
Phone: (214) 420-5500 I Fax: (214) 420-5501

ATTORNEYS FOR DEFENDANT
MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"




                                                           Isl Ernesto D. Sigmon
                                                           Ernesto D. Sigmon




PLAINTIFFS' SIXTH AMENDED PETITION                                                                        9
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                                                                                     Electronically Filed
                                                                                    1212/2014 4 08 24 PM
                                                                                     Lois Rogers, Smith County District Clerk
                                                                                     Reviewed By Lana Fields



                                        CAUSE N0.13-3363-A


GARRY L. ROLLINS and                                                       IN THE DISTRICT COURT
CARLA D. ROLLINS

                Plaintiffs,

Vs.                                                                         SMITH COUNTY, TEXAS

TEXAS COLLEGE;
CHRISTIAN METHODIST EPISCOPAL
CHURCH and
MPF INVESTMENTS, LLC D/B/A
"A-1 RENT ALL"
           Defendants,                                                       7th JUDICIAL DISTRICT


                 PLAINTIFFS' SEVENTH AMENDED ORIGINAL PETITION



TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),

complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")

and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file

this Seventh Amended Original Petition:

                              DISCOVERY CONTROL PLAN LEVEL

1.       Discovery is being conducted under Level 2 of the Discovery Control Plan

pursuant to Texas Rule of Civil Procedure 190.3.

                                      PARTIES AND SERVICE

2.      Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas

      County, Texas.




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3.      Defendant TC is a Texas Nonprofit corporation with its principal office in Smith

County, Texas and has been served with process through its registered agent Dwight J.

Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered

in this matter through its attorney of record.

4.      Defendant CME is a foreign nonprofit corporation organized under the laws of the

state of Tennessee and was served with process at its principal place of business at

4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181.                               CME has

answered in this matter through its attorney of record.

5.      Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas

limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,

Texas 75701. A-1 has answered in this matter through its attorney of record.

                                         CLAIM FOR RELIEF

6.      Plaintiffs seek monetary relief in an amount over $1,000,000 but not to exceed

$25,000,000. Plaintiffs also demand judgment for all other relief to which they may be

entitled as a result of the harms and losses made the basis of this lawsuit.                           See

Tex.R.Civ.P. 47(d).

                                                 VENUE

7.      Smith County, Texas is a county of proper venue for this suit in accordance with

Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a

substantial part of the events or omissions giving rise to this cause of action occurred in

Smith County, Texas.

                                                AGENCY

8.      At all times material hereto, Defendants acted by and through actual, apparent,

ostensible, or by estoppel agents, acting within the course and scope of such agency.

PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        2
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                                                 FACTS

9.      Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by

Texas College in the capacity of maintenance technician. Texas College itself operates

under the "supervision, care and ownership" of CME and has rented heavy equipment

"aerial work platforms" from A-1 on various occasions.

10.     Rollins' formal work title was "Maintenance Technician". His office was in the TC

Physical Plant (the "Plant").             Rollins reported to Roland Brackens, the Plant

Superintendent, and to James Harris, Vice President of Business and Finance at TC.

Rollins also supervised a three to four person maintenance crew.                          Rollins' overall

responsibility at TC included general maintenance, light construction, driving detail and

essentially anything else the school required. He was hired to work at TC in 2008.

11.     During September 2013, Rollins was asked by his supervisor to help move some

marble counter tops that were to be installed in the school's Science building. The

slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.

Rollins and one other worker to perform the task with no other assistance-man nor

machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and

suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins

sought emergency medical care because of the incident and was advised not to drive.

Rollins informed agents and employees of TC of his restriction and was subsequently

removed from a TC driving task that he had been performing on Tuesdays and

Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins

from the task.




PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        3
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12.     A few weeks later, sometime during October 2013, the gymnasium ceiling at TC

needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for

Plaintiff Rollins and others to use while doing the repairs.

13.     The Lift is capable of reaching upwards of approximately 20 feet from the ground

and is often accompanied by a safety harness to prevent worker injury. TC did not rent

or purchase a harness for use with the Lift, nor did it purchase or rent any other

personal protective equipment needed to ensure worker safety. Upon information and

belief, A-1 did not offer or suggest that TC purchase or rent personal protective

equipment for use with the Lift nor did it adequately confirm whether TC or its agents

were "qualified personnel" with the training and experience needed to safely operate the

Lift.   Upon information and belief, A-1 did not familiarize Rollins with the Lift and its

operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens

did not check or confirm whether A-1 Rent All included an owner/operator manual with

the Lift as required by its manufacturer, JLG.

14.     On or around October 22, 2013 TC directed Rollins and others to use the Lift "as

is" to make the repairs-minus training or supervision.                    After completing the work,

Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported

the incident to the TC human resources department as required. At the time, Rollins

assumed his fall had been relatively inconsequential as he was able to walk away

unassisted.

15.     Three days later, on or around October 25, 2013, Rollins lost sensation in his

legs and toes and was subsequently admitted to Zale Lipshy University Hospital in

Dallas Texas where he underwent invasive neck surgery.



PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        4
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16.     Rollins is now convalescing at home, unable to walk unassisted and requires

intensive at home physical therapy and care three times a week. He is no longer able

to perform many of the household tasks he once did to assist his wife Carla with the

maintenance and care of their home.

17.     On or around December 6, 2013 Rollins received correspondence from TC

advising him that he would be terminated if he does not return to work within 3 months.

                                        CAUSES OF ACTION

TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE

18.     Texas College was Rollins' employer at the time of his avoidable injury and owed

him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's

Compensation and does not carry any sort of insurance for work related injury.

Defendant Texas College breached its duty of care to Rollins. Its breach includes and

is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)

furnish reasonably safe machinery or reasonably safe personal protective equipment for

use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate

help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins

while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff

Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions

by TC constitute negligence and gross negligence.

CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER
EGO, NEGLIGENCE AND GROSS NEGLIGENCE

19.     During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented

to the public through documents on file with the Texas Secretary of State that TC

operates under the "supervision, care and ownership" of CME. CME has and continues


PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        5
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to represent to the general public that TC is one of its "affiliate" educational institutions,

of which there are several.           CME makes extensive reference to TC throughout its

internal documentation and by-laws, and the role it plays in establishing TC policies and

procedures. CME also has a significant "financial relationship" with TC that has been

reported to the IRS.

20.     TC acted as CM E's agent at all times relevant to the facts made the basis of this

lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein

and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.

21.     Plaintiffs further allege that CME exercises a measure of control over TC so as to

qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.

CME has engaged in financial transactions pledging and leveraging Texas College

assets; and controls the school through an elected body of officials composed

predominately of CME officers and bishops acting on behalf of the CME-retaining for

itself the power to merge, consolidate, convey, or terminate Texas College as it deems

fit. The official bylaws of Texas College mandate that upon dissolution, the school's

assets will revert back to CME. The elected body of officials (referenced supra) acts

through various "committees", one of which established policies and procedures at the

Texas College physical plant where Garry Rollins was employed for several years.

These policies and procedures impacted employee training and employee safety at

Texas College.

22.     CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in

performing services, whether gratuitously or for consideration that CME should

recognize as necessary for the protection of other persons or things.

PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        6
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23.     CME breached its duties by failing to exercise reasonable care to secure Mr.

Rollins' safety while employed at TC and in doing so significantly increased his risk of

harm.     This breach makes CME liable to Plaintiffs vicariously and directly.                         The

foregoing acts and omissions by CME constitute negligence and gross negligence.


MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT
ENTRUSTMENT AND GROSS NEGLIGENCE

24.     MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others as well as a duty to take affirmative action to avoid increasing the

danger from a condition created by its conduct. Defendant MPF breached its duty of

care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that

the Lift was being rented and used by competent and authorized persons; and to act

reasonably and prudently in all manners regarding its rental transaction with TC and the

steps it should have taken to prevent the readily foreseeable harm that the Lift could

cause subsequent users who were either unfit, untrained or incompetent to operate it.

The foregoing acts and omissions by MPF constitute negligence, negligent entrustment

and gross negligence.

                                    DAMAGES TO PLAINTIFFS

25.             Defendants' combined negligence has proximately caused damage to

Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which

Plaintiffs pray judgment.

26.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum

jurisdictional limits of this Court. Such damages include, but are not limited to: physical

pain (past and future), physical impairment (past and future), medical expenses (past

PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        7
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and future), loss of earning capacity (past and future), disfigurement (present and

future), loss of income (past and future), emotional distress (past and future), and

mental anguish (past and future).

27.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount

in excess of the minimum jurisdictional limits of this Court. Carla's special damages

include, but are not limited to: loss of consortium (past and future) and loss of

household services (past and future).


                                        EXEMPLARY DAMAGES 1

28.      Plaintiffs further allege that Defendants' acts and omissions, whether taken

singularly or in combination, were aggravated by the kind of malice and reckless

disregard for which the law allows the imposition of exemplary damages. TC's conduct

amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts

to gross negligence as by the laws of Texas. CME is either directly liable for exemplary

damages because of its conduct or liable because of its agent's acts. MPF's conduct

amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,

Plaintiffs seek such exemplary damages against each defendant named herein in an

amount that exceeds the minimum jurisdictional threshold of the Court.


1
  Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs'
Seventh Amended Petition). See Al Parker Buzek Co. v. Touchy, 788 S.W.2d 129, 130 (Tex.App.-Houston [1 11
Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 344 S.W.2d 228, 231 (TexApp.-Houston 1961, no
writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The
proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for
exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable
for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of
exemplary damages assessed against each defendant. See Fazrfield Ins. V. Stephens Martzn Pavzng, LP, 246 S.W.3d
653, 667 (Tex. 2008). :\owhere in CME's Special Exceptions to P's Sixth Amended Petition does it state legal
authority supporting its objection to the manner in which Plaintiffs' have specially pied for exemplary damages.

PLAINTIFFS' SEVENTH AMENDED PETITION                                                                              8
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                                              JURY DEMAND

29.     Plaintiffs request that a jury be convened to try the fact issues in this action. A

jury fee has been tendered and accepted by the Smith County District Clerk.


                                                PRAYER

VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded

damages which are set forth above and which are in the sum in excess of the minimum

jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate

permitted by law, post-judgment interest from the date of judgment until paid at the

highest rate permitted by law, attorney fees, and for such other and further relief, both at

law or in equity, to which Plaintiffs may be justly entitled.


                                 Respectfully submitted,
                                 THE LAW OFFICES OF ERNESTO D. SIGMON

                                 Isl Ernesto D. Sigmon
                                 ERNESTO D. SIGMON
                                 State Bar No. 24010397
                                 5872 Old Jacksonville Highway Suite 624
                                 Tyler, Texas 75703
                                 2141395-1546 (Telephone)
                                 9031944-7496 (Facsimile)

                                 ATTORNEY FOR PLAINTIFFS




PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        9
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                                    CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document
has been served on all counsel of record on the 2nd day of December 2014 as follows:


VIA EMAIL
Mr. Trey Yarbrough
Yarbrough Wilcox, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
FAX: 903.595.0191

ATTORNEYS FOR DEFENDANT
TEXAS COLLEGE

VIA EMAIL
Wesson H. Tribble
Dan McManus
Tribble, Ross & Wagner
3355 West Alabama Street, Suite 1200
Houston, Texas 77098

ATTORNEYS FOR DEFENDANT
CHRISTIAN METHODIST EPISCOPAL CHURCH

VIA EMAIL
Ryan K. Geddie
Martin, Disiere, Jefferson & Wisdom, LLP
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas I 75248
Phone: (214) 420-5500 I Fax: (214) 420-5501

ATTORNEYS FOR DEFENDANT
MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"




                                                          Isl Ernesto D. Sigmon
                                                          Ernesto D. Sigmon




PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        10
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                                                                                    Electronically Filed
                                                                                    1/19/201510 03 49 AM
                                                                                    Lois Rogers, Smith County District Clerk
                                                                                    Reviewed By Lana Fields



                                       CAUSE N0.13-3363-A


GARRY L. ROLLINS and                                                       IN THE DISTRICT COURT
CARLA D. ROLLINS

                Plaintiffs,

Vs.                                                                         SMITH COUNTY, TEXAS

TEXAS COLLEGE and
MPF INVESTMENTS, LLC D/B/A
"A-1 RENT ALL"

                Defendants,                                                  7th JUDICIAL DISTRICT


                  PLAINTIFFS' EIGHTH AMENDED ORIGINAL PETITION



TO THE HONORABLE JUDGE OF THE COURT:

COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),

complaining of Texas College ("TC") and MPF Investments, LLC d/b/a A-1 Rent All ("A-

1") (collectively "Defendants") and file this Eighth Amended Original Petition:

                              DISCOVERY CONTROL PLAN LEVEL

1.       Discovery is being conducted under Level 2 of the Discovery Control Plan

pursuant to Texas Rule of Civil Procedure 190.3.

                                      PARTIES AND SERVICE

2.      Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas

      County, Texas.

3.       Defendant TC is a Texas Nonprofit corporation with its principal office in Smith

County, Texas and has been served with process through its registered agent Dwight J.



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Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered

in this matter through its attorney of record.

4.      Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas

limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,

Texas 75701. A-1 has answered in this matter through its attorney of record.

                                         CLAIM FOR RELIEF

5.      Plaintiffs seek monetary relief in an amount over $1,000,000.                      Plaintiffs also

demand judgment for all other relief to which they may be entitled as a result of the

harms and losses made the basis of this lawsuit. See Tex.R.Civ.P. 47(d).

                                                 VENUE

6.      Smith County, Texas is a county of proper venue for this suit in accordance with

Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a

substantial part of the events or omissions giving rise to this cause of action occurred in

Smith County, Texas.

                                                AGENCY

7.      At all times material hereto, Defendants acted by and through actual, apparent,

ostensible, or by estoppel agents, acting within the course and scope of such agency.

                                                 FACTS

8.      Garry L. Rollins (hereinafter "Rollins") is a maintenance worker employed by

Texas College in the capacity of maintenance technician. Texas College has rented

heavy equipment "aerial work platforms" from A-1 on various occasions.

9.      Rollins' formal work title was "Maintenance Technician". His office was in the TC

Physical Plant (the "Plant").             Rollins reported to Roland Brackens, the Plant

Superintendent, and to James Harris, Vice President of Business and Finance at TC.

PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       2
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Rollins also supervised a three to four person maintenance crew.                         Rollins' overall

responsibility at TC included general maintenance, light construction, driving detail and

essentially anything else the school required. He was hired to work at TC in 2008.

10.     During September 2013, Rollins was asked by his supervisor to help move some

marble counter tops that were to be installed in the school's Science building. The

slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.

Rollins and one other worker to perform the task with no other assistance-man nor

machine. VVhile moving the slab, Mr. Rollins sneezed/coughed, dropped the object and

suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins

sought emergency medical care because of the incident and was advised not to drive.

Rollins informed agents and employees of TC of his restriction and was subsequently

removed from a TC driving task that he had been performing on Tuesdays and

Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins

from the task.

11.     A few weeks later, sometime during October 2013, the gymnasium ceiling at TC

needed repair. TC rented a hydraulic "scissor lift" (the "Lift') from defendant A-1 for

Plaintiff Rollins and others to use while doing the repairs.

12.     The Lift is capable of reaching upwards of approximately 20 feet from the ground

and is often accompanied by a safety harness to prevent worker injury. TC did not rent

or purchase a harness for use with the Lift, nor did it purchase or rent any other

personal protective equipment needed to ensure worker safety. A-1 did not offer or

suggest that TC purchase or rent personal protective equipment for use with the Lift nor

did it adequately confirm whether TC or its agents were "qualified personnel" with the

training and experience needed to safely operate the Lift. A-1 did not familiarize Rollins

PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       3
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with the Lift and its operation nor did it offer to train Rollins. A-1 Rent All did not include

an owner/operator manual with the Lift as required by the manufacturer, JLG.

13.     On or around October 22, 2013 TC directed Rollins and others to use the Lift "as

is" to make the repairs-minus training or supervision.                    After completing the work,

Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported

the incident to the TC human resources department as required. TC did not formally

investigate the incident nor did it report Mr. Rollins' workplace fall to OSHA.                     At the

time, Rollins assumed his fall had been relatively inconsequential as he was able to

walk away unassisted.

14.     Three days later, on or around October 25, 2013, Rollins lost sensation in his

legs and toes and was subsequently admitted to Zale Lipshy University Hospital in

Dallas Texas where he underwent invasive neck surgery.

15.     Rollins is now convalescing at home, unable to walk unassisted and requires

intensive at home physical therapy and care three times a week. He is no longer able

to perform many of the household tasks he once did to assist his wife Carla with the

maintenance and care of their home.

16.     On or around December 6, 2013 Rollins received correspondence from TC

advising him that he would be terminated if he does not return to work within 3 months.

                                        CAUSES OF ACTION

TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE

17.     Texas College was Rollins' employer at the time of his avoidable injury and owed

him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's

Compensation and does not carry any sort of insurance for work related injury.

Defendant Texas College breached its duty of care to Rollins. Its breach includes and

PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       4
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is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)

furnish reasonably safe machinery or reasonably safe personal protective equipment for

use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate

help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins

while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff

Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions

by TC are violations of the Texas Labor Code (Chapter 411 et. seq.), the common laws

of Texas, and various other rules and regulations pertaining to worker safety. As such,

TC's conduct with respect to Garry Rollins constitutes negligence and gross negligence.



MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE AND GROSS
NEGLIGENCE

18.     MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable

risk of injury to others as well as a duty to take affirmative action to avoid increasing the

danger from a condition created by its conduct. Defendant MPF breached its duty of

care to Plaintiffs. MPF's breach includes and is not limited to its failure to: 1) ensure that

the Lift was being rented and used by competent and authorized persons; 2) deliver the

Lift in "fit for service" condition prior to use; 3) offer training or familiarization with the

Lift; and 4) to act as a reasonable and prudent renter of heavy machinery under the

circumstances in all manners pertaining to the transaction with TC and the steps it

should have taken to prevent the readily foreseeable harm that could result from unfit,

untrained or incompetent operators using the Lift. The foregoing acts and omissions by

MPF constitute negligence and gross negligence.




PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       5
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                                      DAMAGES TO PLAINTIFFS

19.              Defendants' combined negligence has proximately caused damage to

Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which

Plaintiffs pray judgment.

20.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum

jurisdictional limits of this Court. Such damages include, but are not limited to: physical

pain (past and future), physical impairment (past and future), medical expenses (past

and future), loss of earning capacity (past and future), disfigurement (present and

future), loss of income (past and future), emotional distress (past and future), and

mental anguish (past and future).

21.     As a direct and proximate result of the occurrence made the basis of this lawsuit,

Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount

in excess of the minimum jurisdictional limits of this Court. Carla's special damages

include, but are not limited to: loss of consortium (past and future) and loss of

household services (past and future).

                                        EXEMPLARY DAMAGES 1

22.      Plaintiffs further allege that Defendants' acts and omissions, whether taken

singularly or in combination, were aggravated by the kind of malice and reckless


1
  Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs'
Eighth Amended Petition). See Al Parker Buzek Co. v. Touchy, 788 S.W.2d 129, 130 (Tex.App.-Houston [1 11
Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 344 S.W.2d 228, 231 (TexApp.-Houston 1961, no
writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The
proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for
exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable
for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of
exemplary damages assessed against each defendant. See Fazrfield Ins. V Stephens Martzn Pavzng, LP, 246 S.W.3d
653,667(Tex.2008}

PLAINTIFFS' EIGHTH AMENDED PETITION                                                                               6
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disregard for which the law allows the imposition of exemplary damages. TC's conduct

amounts to gross negligence as defined by the laws of Texas. MPF's conduct amounts

to gross negligence as defined by the laws of Texas. In light of the foregoing, Plaintiffs

seek such exemplary damages against each defendant named herein in an amount that

exceeds the minimum jurisdictional threshold of the Court.


                                              JURY DEMAND

23.     Plaintiffs request that a jury be convened to try the fact issues in this action. A

jury fee has been tendered and accepted by the Smith County District Clerk.


                                                PRAYER

VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to

appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded

damages which are set forth above and which are in the sum in excess of the minimum

jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate

permitted by law, post-judgment interest from the date of judgment until paid at the

highest rate permitted by law, attorney fees, and for such other and further relief, both at

law or in equity, to which Plaintiffs may be justly entitled.


                                 Respectfully submitted,
                                 THE LAW OFFICES OF ERNESTO D. SIGMON

                                 Isl Ernesto D. Sigmon
                                 ERNESTO D. SIGMON
                                 State Bar No. 24010397
                                 416 West Saulnier Street
                                 Houston, Texas 77019
                                 2141395-1546 (Telephone)
                                 7131485-6056 (Facsimile)

                                 ATTORNEY FOR PLAINTIFFS

PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       7
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                                    CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document
has been served on all counsel of record on the 19th day of January 2015 as follows:


VIA EMAIL
Mr. Trey Yarbrough
Yarbrough Wilcox, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702
FAX: 903.595.0191

ATTORNEYS FOR DEFENDANT
TEXAS COLLEGE

VIA EMAIL
Ryan K. Geddie
Martin, Disiere, Jefferson & Wisdom, LLP
Tollway Plaza One
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
Phone: (214) 420-5500 I Fax: (214) 420-5501

ATTORNEYS FOR DEFENDANT
MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"




                                                          Isl Ernesto D. Sigmon
                                                          Ernesto D. Sigmon




PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       8
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APPENDIX 42
APPENDIX 43
APPENDIX 44
APPENDIX 45
APPENDIX 46
 STATE OF TEXAS              §
 DALLAS COUNTY               §

   Before me, the undersigned notary, on this day personally appeared Garry L. Rollinl, the affiant, whose
identity is known to me. After I administered an oath, affiant testified as follows:

  1.   "My name is Garry L. Rollins. r am over 18 years of age, of sound mind, and capable of making this

       affidavit. The entire facts stated in this affidavit are within my personal knowledge and personal

       experience and are true and correct."


  2.   "I gave sworn testimony in this case at my deposition on July 7. 2014. I am a former employee of

       Texas Colleae in Tyler, Texas. I worked at Texas College as a Maintenance Tech and Supervisor for

       about six years. I was injured on the job at Texas College on two occasions: During early September

       2013 and on October 22, 2013. Roland Brackens was my immediate supervisor during the times I was

       injured at Texas College.   '-Ii B:aellCiIS    I "79.   sm;s,) k) 'i'        naml   sf NUIR ti ' dC's cenMA*

       . lilt ft JOlA W,lhS:. . . . g••• lsem' rempEI) dfel liOik fe, TillIS Co"'g' wh ll •                b,    'II'?   glng


       emplbjed dieta IS SUpe.h.wads"lUfdie Ph;sl"l PlBiitsiU: AwsSh it illa'u ti.1I1 011'. E'Bili 'of

       It••''S2 POIl8j4 M' g. ok.,.; 'tr"lh RWtp, nn,s,'si ts I"                d   habU. fi.n 'k.   17k    n"              c

       !I   iallEge        slab ecs'Ls: top.   'It   ,I. 8uichCO BaUdl", but AD WiSdwcsst\t1 Sid did             j'   I'· the

       111= bue of diC pilU lit oew qUlLIS: As arid Ie, 'hs nrd'llJ2S' ,                       U•• 'ill" l'b .1. d

       MS' i t atlo:: MCiillE tfdYMted wah 1.11. Blwlsms 11 It 'h' "'ork            bed    nm 'xc 2?p"'wd. On the

       day I got hurt, Mr. Brackens instructed me and another employee to move the counter tops. I informed

       Mr. Brackens that these counters were pure marble and extremely heavy <at least ISO lbs.) and asked if

       he would be providing back braces to make the work safer. I am in my mid fifties, and am not as

       strong as I was when younger, and have suffered previous work related injuries to my hand, knees and

       neck. Texas College and Mr. Brackens were aware of these injuries as I have been to the doctor on

       several occasions and given the Human Resources department my medical excuses over the years. Jhe

              I olicaseS attached ts m) ,msaolt a                  'P I   'he   'm"'s the· '7               pzsus'.y
       ".... rt: ..,... sui tin.. IS_ • ,. T'xer ca"'W. Mr. Brackens indicated that he would provide this




                                                                                                  APPENDIX 47
                                                                                                                                Page 4131
     help but never did so. Myselfand other Plantemployees had requested equipment necessary for safer

     work conditions before like hard hats and boots. but Texas College never provided any. Moving

     marble slabs like this was not part of my normal work duties. )JItt1were not trained or instructed on

     proper lifting techniques or given any direction for performing a safe lift of this size. Mr. Brackens

     left for vacation instructing us that the counters should be moved by the time he returned. J struggled

     with the weight during the move; the marble slabs were awkward to handle and 1 had difficulty

     positioning myself under the weight. I coughed/sneezed while lifting the marble, dropped it and

     briefly passed out. I injured my back and begin experiencing pain and tingling from the neck down.

     The next day, September 9. 2013, I went to the                            a ttiqilexd "it... ,lIilRlhl,lIa b 7'5
     jp   ,ddi'hl ,. fall bsd) pain. I     liM   ,I.. inc..           t; the dooM lb "old dilo4hg. "ie deeM's uU
     U'd   . end             tn ISSJ       'it 8'   Exhibjt B   W'S   th· pm' tbpt I MR .     ism the desw: at ISJ I .

     I informed Mr. Harris. Roland Brackens' boss. and later Mr. Brackens himself that I had injured

     myself, and was now having dizziness and blackout spells. I also produced a Doctor noteto prove that

     I had been to the hospital. Mi. naais              U. i.elillil thea .,moocd iLie foam a dL h 8 1"*1' I had

     been performing for some time at Texas College where I would drive students from Dallas to Tyler to

     attend classes. Me HernE ad P:h. HilOheu I                   2110d   m.   fro...   dilolal jeb   lllPlJII *13   J.

     ""nt   tg   'Pd ••SSi nadeas If I was to blaeltoat Silaile             'Ju vheel   4




3.   During this time, I also began to experience problems getting along with Mr. Brackens. At times I

     questioned Mr. Brackens leadership ability and competence. He did not like that. Over the course of

     the next several weeks in September and into October, Mr. Brackens began having me perform

     maintenance and repair jobs that were at times degrading and a little frightening. For example, on one

     occasion he insisted that I crawl underneath several buildings on campus to take photographs of the

     different buildings' foundation. I wasn't given a flashlight or anything to assist with crawling around

     hundreds of yards in the dark underneath buildings. Instead. I had to use my cell phone. After I

     completed the assignment, Mr. Brackens had me to go back under the buildings because he didn't like

     the quality of the photos 1 took. I refused to go a second time on account that I felt the work was




                                                                                                      APPENDIX 48
                                                                                                                          Page 4132
     dangerous not being able to see in the dark and it made me very uncomfortable crawling around in

     tight spaces. UMCi felt. !.UCItUiiS ....       p T' rae Ca"I"
                                                        t
                                                                               tlull '1'111   If PI   S pbas;s OR 'Pf'$t' or

     trisi•• ft. Wij Of   me W6tk we Ntie _IIIItcl.            '.T;lflill. il. ltis 1"11 isisl ..1 'rd'Tbip at Iexl'

     ce"s.l; ::01£ of lIiU umplo,ws      wete   Uti Wilt LlJ       =" Md         sf sl'l9     tri,;,. srd,    £   51 801k\

     ae:ltshop•. This kind of thing made me and otheremployees question the school'sattitude toward our

     safety.


4.   During October 2013, Mr. Brackens assigned me and my crew the job of fIXing the gym ceiling in

     preparation for the Texas College homecoming celebration. Texas College rented a scissor lift from

     ClA_l R.ent All" in Tyler, Texas for us to do the work at about 19-20 feet in the air. Dr. Fennell wanted

     the ceiling repaired and wanted it done immediately. Over the course of my professional career, I

     havedone work on roofs and at heights but I havenever operated a scissor lift (which is different from

     say a "boom" lift) and J have become leery of heights in my olderage for fear of falling. I explained

     to Mr. Brackens that I did not know how to operate a scissor lift and that I was afraid of the height.

     Later that day, Mr. Harris called me to his office along with Ms. Bowie and infonned me that Mr.

     Brackens had complained that I was an ongoing discipline problem and that J didn't want to do as told,

     Mr. Harris infonned me that In orderto keep myjob I needed to get the ceiling fixed as directed.

S.   I was present outside the gym when A·I Rent All delivered the scissor lift to Texas College. I asked

     the delivery person If A·[ would brini the lift inside the gym and who was going to show us how to

     use It. The A·I person informed me that he couldn't bring the lift indoors and thlt the folks at Texas

     Collcae knew how to use the lift. A-I did not offer WI training nor did it familiarize us with the lift.

     The person from A·I just came and delivered the machine and left.


6.   I began doing the gym ceiling work with Michael Johnson on October 21,2013 as directed by Mr.

     Bra<:kens and Mr. Harris.   'lEI   liS RSI . . •       sJ X be   Oil   diU II" and we were not supervised. I was

     nervous the entire time 1was up there, We also did not fmish that day. 1left a bit early that afternoon

     to attend a Doctor's appointment. The next morning, I arrived at work before Mr. Johnson and began




                                                                                                      APPENDIX 49
                                                                                                                               Pace 4133
      tryingto operate the lift to complete the repain as instructed. When Mr. Johnson arrived I lowered the

      lift and brought him up. While in the air, Michael Johnson told me I didn't look good. He also

     testified to this fact in his deposition.    r was present at his deposition.          He was correct: I didn't feel

     right being that high up. Michael suggested that we come down and that I set otTthe lift. Once he

     brought the lift down, I went to exit and fell from the top of the platform flat on my back ontothe gym

     floor. The top of the lift platform is still a good three feet off the ground when its all the way down,

     and I fell straightback with nothing breaking the fall. I don't remember taking the first step down. )

     wasn't wearing any safety harness and had not been given a hard hat. Michaellohnson was present

     and witnessed my fall and Steve Barron was also presentin the gymwhen (fell. Michael Johnson has

     given a statement that it looked like I just "let so". His statement was provided to my lawyer in

     connection with this case and is attached to my affidavit as Exhibit C. I bles'n.             lI' ,hsn .,' 8"     gaO

     .ff liN lift: 1I08teOiisuioustS.8 m.Ri.M_US •• i              nil i!Om '111 lift.   When 1opened my eyes I was on

     the floor. The stressofthe workat that height had me disoriented and dizzy and (was already nervous

     being that high in the air. All I remember is turning around on the platform, gripping the handrails,

     and then being on my back. After my fall, I could not move at first and just lay still on the gym floor

     because 1 was a little embarrassed. Eventually, I rolled over and rose to my feet. Michael and Steve

     asked me if ( was ok and 1just kind of waved them otT thinking that I was all right Of course, 1 later

     ended up having to have major surgery ...            t1" If m)                  Mg    ",'1&1'. I.tta... M9' ""1'.
     deeori'ri". Me: Irj"I!' io .....hci   'I 2215 • • ed e   IS   Fr'hikia D. l:4mue .e9lewecI dils _WUI'"        i•• 9

     '1l'Kl'" .1   I   ,m fa_iii. Mh   RIJ 8WgeOU'g      opinion. He pzc $ ideA 'I • lett.: in      .li261U •• R   i,i siie •




7.    "I was afraidof working on that scissor lift in October because I didn't know how to operate it, hadn't

     been trained, and was fearful because of my injury and blackouts. I 1 16" pti86l&lIY diM WOlI&.9

     -,-" bua h4diCd ali hilled hac"'" of 'sinor !jA, r would not have gotten on the lift if 1 had not

     been specifically instructed to do so by Mr. Brackens and later by Mr. Harris l>sd. af whom It. .

     kncwJ'di' gf'R,J' b'esko"ts spd rediae' biS?Ii'. The only reason I got on the lift is because I was told




                                                                                                   APPENDIX 50
                                                                                                                                Page 4134
    to do so and was made to feel as though my job depended on it. I didn't want to do it. If Mr.

    Brackens had looked at the owner's manual and informed me that a person with blackouts shouldn't

    be on a lif\, I would not have gotten on. Mr. Brackens however did not do this. He did not look at a

    safety manual, and if he did, he certainly did not inform or warn me that a person in my condition

    shouldn't be on a scissor lift. Th,l'      III'S   n"I.., i....", at 'k.,    ",11'8 •• I .d ,Rn.'ll'
    .1111111 Widl WIiCit ascii rr In P'S!'" 'nw, u ' Id te db "OIl dtit lie   was dUL alt:wd te ••• ni I"   burt.

    "'lit   emple) ..   liZ 1&1   It ad. I had never had any problems at Texas College in terms of my work

    and performance evaluations and only began Iulvlng some difficulty when Mr. Brackens became

    Superintendent of the Physical Plant. Even then my work evaluations ranked me as eitheroutstanding

    or very good."




Sworn to and subscribed before me by Garry Rolli•• 0




                                                                                          APPENDIX 51
                                                                                                                    Page 4135
APPENDIX 52
APPENDIX 53
                                         AFFIDAVIT
  STATE OF TEXAS             §
  DALLAS COUNTY              §


   Before me, the undersigned notary, on this day personally appeared SAMUEL L.
BARNETT, the affiant, whose identity is known to me. After I administered an oath, affiant
testified as follows:
1.     "My name is Samuel L. Barnett. I am over 18 years of age, of sound mind, and capable
of making this affidavit. The facts stated in this affidavit are within my personal knowledge
and are true and correct."

2.      "As an introduction, I am a neurological surgeon and associate professor in the
Department of Neurological Surgery at The University of Texas Southwestern Medical Center
at Dallas. My undergraduate training was done at Indiana University, Bloomington (1991-
1995). I received my medical degree from the University of Cincinnati College of Medicine
(1995-1999). My surgical internship was done at the University of Texas Southwestern
Medical Center (1999-2000). I completed a neurosurgical residency at the University of Texas
Southwestern Medical Center (2000-2005). I received fellowship training in skull base and
cerebrovascular neurosurgery at the University of South Florida, Tampa (2005-2006). I was a
faculty member at the University of Mississippi School of Medicine for one year (2006-2007)
prior to returning to Dallas. Since that time, I have been a faculty member in the Department
of Neurological Surgery at The University of Texas Southwestern Medical Center (2007-
Present). I am a member of the hospital staffs at Zale Lipshy University Hospital, Parkland
Memorial Hospital and the Dallas VA Medical Center. I am board certified by the American
Board of Neurological Surgery and I am licensed to practice medicine in Texas and
Mississippi. In my current practice, I regularly evaluate and manage patients with traumatic
and degenerative spinal conditions."

3.     "I have completed my review of Garry Rollins' medical records. Items reviewed
include Emergency Room records dated 10/25/2013, inpatient medical records from
10/26/2013 - 11111/2013 and 11115/2013 - 11/20/2013 and an MRI scan of the cervical spine
dated 10/25/2013. I personally saw and evaluated Mr. Rollins' on 11115/2013, 11/25/2013,
12/3/2013, 12/16/2013, 12/30/2013, 1/13/2014, 2/17/2014, 3/17/2014, 5/19/2014 and
6/23/2014 and I have reviewed those records as well."

4.        "In briefly summarizing Mr. Rollins' medical records, Mr. Rollins has a history of
sarcoidosis, asthma, syncopal episodes and a previous C5-C7 anterior cervical fusion. Mr.
Rollins was involved in a fall at work on October 22, 2013. Mr. Rollins was getting off of a
lift, fell backwards and hit the back of his head. Over the next several days, he began having
progressive problems with ambulation. In addition, he had significant neck pain. These
complaints, as well as a syncopal episode, ultimately prompted a visit to the emergency
department at St. Paul Hospital on 10/25/2013. His evaluation included an MRI of the cervical
spine which was performed on the same day. I have reviewed this MRI scan that demonstrates
multi-level degenerative changes, evidence of prior fusion from CS-C1 and severe spinal




                                                                             APPENDIX 54
                                                                                                 Page 4048
         at C4-5. There is some ussoci:ited abnom1al signal within the spinal cord at this level
cvn.sistent with a spinal wrd contusion. Bll$ecl on these tinclings, Mr. Rollills was transterrcd
to Znlc-Lipshy University l·fospitul   l\1rthcr cure."

5.       ''On my initinl              I found that he had full strength in his upper extremities and
i.lightly diminished strength in his bilutera l lower extremities. He had                      i11
biceps, triceps, patellar 1md Achilk's rellcxes bilaterally. A lfoffman's sign was
bilaterally.     Mr. Rollins hud decreased scnsotion to light touch. pinprick, pai11 nnd
p1oprioccp1km in his k1wcr extremities a11<l decreased sensation to light touch and puin in his
upper                  A wcll-henll"?d nntl"?rior neck incision from his prior surgery was Mted.
Based <lll the history, physical exam und imaging findings. I diagnosed Mr. Rollins wilh n
spinal cord con1usion secondary to an acute herniated disc at C4-5. l reconuncndcd a C3-C7
            ccrvicul decompression, instrumentation and fusion that he underwent 011 l 0:3012013.
l performed this surgery. Mr. Rollins wus ullimaicly discharged from the hospital 011
11:i2:2013 .''

6.      "Mr. RClllin.s was s<:en in the        clinic on l 1115:20 l 3 and he was found to have
11 superficial dehisccnce of his incision. He was rc.admitled to the hospital and underwent u
wound revision on l l /l 6/2013. He required home hculth nun;il1g for wound care until his
wound \vas completely hcakd by l :2812014. ··

7.        ''I have c:urcfully reviewed Mr.                     record :ind MRI sca11s. Tc is my
opinion there is a reasonable degree of mcdicul probability 1ha1 Mr. Rollios suffered un acute
herniated disc at C4-S und a          cord co!ltusion caused by his fall on Oct<.)bcr    2013. It
is 11lso my opinion that to a rcnsnnable degree 1)f medical probability that Mr. Rollins will have
chro11ic neck pain and spinal cord dysfunction as u rcsul1 of 1hc injury. In my opinion l<l a
n.·<1so1111blc degree of medical probability he will require long-term pain rnanagcmcut for 1hcse
issues."

  The facts and opinions            in it are within my personal knowledge and arc                                               and
correct."'
                                                           ('")                       _,. ..
                                                                                           )

                                                         ...
                                                      ...<:••        ••
                                                                              .••if:.°'..r."P'···-·····-·····-··
                                                      SAMUELL. BARNETT

  Sworn to and subscribl!d          me by Ssunuel L. Harnett on                                                ...._.. 20 l 5.
                                                           t<"· ·/•,    r·u·.. ·•::it·-.,..c .·L<,)
                                                                       ;· . ..t                      ... · , · ··r
                                                                                                l <· :v-.ab.    :


                                                                     Public in ;mcl for D
                                                      the Stale ofTcx11s
                                                      My commission expires:                                                       (..,-




                                                                                                       APPENDIX 55
                                                                                                                                           Page 4049
APPENDIX 56
APPENDIX 57
APPENDIX 58
APPENDIX 59
APPENDIX 60
APPENDIX 61
APPENDIX 62
APPENDIX 63
                                                                             Electronically Filed
                                                                             2/13/2015 411 05 PM
                                                                             Lois Rogers, Smith County District Clerk
                                                                             Reviewed By Lana Fields



                                       CAUSE NO. 13-3353-A

GARRY L. ROLLINS AND                                §           IN THE DISTRICT COURT
CARLA D. ROLLINS,                                   §
Plaintiffs,                                         §
                                                    §
v.                                                  §           SMITH COUNTY, TEXAS
                                                    §
TEXAS COLLEGE, CHRISTIAN                            §
METHODIST EPISCOPAL CHURCH                          §
AND MPF INVESTMENTS, LLC                            §
D/B/A "A-1 RENT ALL",                               §
Defendants.                                         §           7TH DISTRICT COURT

 DEFENDANT TEXAS COLLEGE'S OBJECTIONS/MOTION TO STRIKE EVIDENCE
    AND REFERENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE'S
                 MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF THE 7rn DISTRICT COURT:

        Defendant, Texas College, files these Objections/Motion to Strike Evidence and

References in Plaintiffs' Response to Texas College's Motion for Summary Judgment and

respectfully shows the Court:

                                         INTRODUCTION

        On January 15, 2015, Texas College filed a Traditional and No-Evidence Motion for

Summary Judgment on all causes of action alleged by Plaintiffs. On February 4, 2015, Plaintiffs

filed a Response to Texas College's Motion for Summary Judgment.             Plaintiffs attach and

reference numerous items within their response as summary-judgment evidence. Texas College

objects to certain evidence submitted with the response as incompetent and defective, and to

certain references within the Response at not supported by competent evidence. The College

respectfully requests that the objections stated below be sustained, the objectionable material and

references to the same be stricken from the record, and that the objectionable material not be

considered by the Court.


DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                             PAGE 1OF19
                                                                                APPENDIX 64
                                                                                                                Page 3666
                                ARGUMENT AND AUTHORITY

        Evidence included in response to a motion for summary judgment must be admissible

under the rules of evidence. United Blood Servs. V. Longoria, 938 S.W.2d 29, 30 (Tex. 1997);

see TEX. R. Crv. P. 166a(f). Facts must be proven in the same manner or type of evidence that

would be admissible at trial. See TEX. R. Crv. P. 166a(c). If a party's summary-judgment proof

contains evidence that would not be admissible at trial, the appropriate avenue to challenge such

is through written objections and requesting that the inadmissible summary-judgment proof be

stricken. See TEX. R. Crv. P. 166a(f)

I.      Plaintiffs' Seventh and Eighth Amended Petition

        A party cannot rely on factual assertions in its own pleadings as summary-judgment

proof. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Texas College

objects to, and requests that the Court strike any reference by Plaintiffs to their amended

petitions in the Response, as they are not competent evidence on which Plaintiffs may rely.

II.     Excernts from Deposition of Roland Brackens




                                                        Not Qualified to Testify
 Deposition Testimony: 18:4 - 18:25; 22: 15 -
 23: 14; 24:8 - 24: 11; 24:23 - 25:6.



 Mr. Brackens also testified that OSHA imposes Pg. 16
 a duty on employers to train employees that are
 using scissor lifts so that they may recognize
 "associated work hazards", and that he did not
 train Mr. Rollins on operating a lift under this
 su ervision at Texas Colle e - r OSHA.




DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE20F19
                                                                                   APPENDIX 65
                                                                                                    Page 3667
Q: (MR. SIGMON): And if you look at - if you Pg. 17
look at subsection (a) of [OSHA] Section
 1926.454, it states that, "The employer shall
have each employee who performs work while
on a scissor lift trained by a person qualified in
the subject matter to recognize the hazards
associated with the type of set - of scissor lift
being used and to understand the procedures to
control or minimize those hazards." And you've
just testified that that did not take place,
correct?

 A. Correct.
 Q. So the rules that we just spoke about, Pg. 17
 specifically those OSHA examples, those are
 safety rules, right?

 A. Correct.
 Q. But my question to you, Mr. Brackens, is, Pg. 18
 you just testified that OSHA section 1926.454
 was not followed. It was violated. That rule
 was broken. No training was given by a
 competent person to these employees at Texas
 College on how to operate a scissor lift.
 A. Okay.

 Q. Correct?
 A. Yes, I correct - yes, I did say that.

        Mr. Brackens was not qualified by Plaintiffs to testify as an expert on specific OSHA

rules or regulations or make any conclusory opinions on same, and made it clear through his

testimony that he is not an expert on same. Brackens dep. 18:8-14. While he may be familiar

generally with OSHA, Plaintiffs have attempted to obtain definitive legal conclusions from

Brackens and elicit from him opinion testimony on specific standards. While he has been shown

to be knowledgeable and experienced on the mounting, dismounting, and the operation of scissor

and boom lifts and other matters addressed in his deposition, OSHA standards and their

application to specific workplace items are not among those matters. Texas College objects to

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                       PAGE30F19
                                                                           APPENDIX 66
                                                                                                 Page 3668
the specific portions referenced above and requests that this objection be sustained, the

incompetent evidence be stricken, and the Court disregard same.

III.    The JLG Owner's Manual Model 1930-ES

        Texas College objects to Plaintiffs' attempted use of a purported JLG Owner's Manual

on the basis that Plaintiffs have failed to establish its authenticity or relevance, or lay any proper

predicate for the admissibility of same, either through a qualified witness or otherwise. The

purported manual is inadmissible hearsay and not competent as summary-judgment proof. No

exception to the hearsay rules apply to the subject manual filed as an independent document with

the Court. Since Plaintiffs are attempting to offer statements within the JLG Owner's Manual to

prove the matter asserted, the JLG Owner's Manual itself, and the statements referenced within

it, are inadmissible hearsay.

        Texas College's objections to the JLG Owner's Manual should be sustained, any

reference to the JLG Owner's Manual should stricken, and the JLG Owner's Manual and any

reference to it should be disregarded by the Court. The references within Plaintiffs' response

that Texas College requests to be stricken are listed below.

                                                                        p
                                                        Page 16

 Use extreme caution when entering or leaving
 platform. Ensure that the scissor arm assembly
 is fully lowered. Face the machine when
 entering or leaving the platform. Always
 maintain "three point contact" with the machine
 using two hands and one foot or two feet and
 one hand at all times during entry and exit.
 JLG, the manufacturer of the subject lift, also Page 18
 requires that lift operators be trained.



DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                              PAGE4OF19
                                                                                  APPENDIX 67
                                                                                                         Page 3669
 There is developed evidence (affinned by Page 18
 common sense, and discussed supra) that a
 scissor lift is a piece of machinery that requires
 extreme caution because of its potential dangers
 and hazards.
 The undisputed evidence is that a person in Mr. Page 20
 Rollins condition should not have been
 operating this type of machinery and that it is
 incumbent on the employer to recognize these
 potential hazards
 The undisputed evidence is that a person in Mr. Page 22
 Rollins condition should not have been on or
 ooerating this type of machinery

IV.     Affidavit of Garn Rollins

        An affidavit attached in response to a motion for summary judgment must contain facts

that would be admissible in evidence at trial. TEX. R. Crv. P. 166a(f); United Blood Servs. v.

Longoria, 938 S.w.2d 29, 30 (Tex. 1997). Set forth below are those portions of Rollins' affidavit

and the corresponding references within Plaintiffs' response the College respectfully submits

should be stricken, and the supporting grounds.           However, the affidavit is so replete with

inadmissible hearsay, irrelevant testimony, and sworn statements that fundamentally contradict

Rollins' earlier sworn deposition testimony (making it a "Sham Affidavit"), the College

respectfully requests in the alternative that it be stricken in its entirety.

        A summary judgment affidavit must affinnatively establish the basis for affiant's

personal knowledge of the infonnation in the affidavit. TEX. R. Crv. P. 166a(f); Kerlin v. Arias,

274 S.W.3d 666, 668 (Tex. 2008). A statement that the affidavit is based on personal knowledge

is insufficient. Kerlin at 668. Furthennore, Rule 602 of the Texas Rules of Evidence provides

that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter."




DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE5OF19
                                                                                 APPENDIX 68
                                                                                                      Page 3670
         Only relevant evidence is admissible. TEX. R. Evm. 402. Relevant evidence is evidence

that has "any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence." TEX. R.   EVID.   401.

         Hearsay statements in summary judgment affidavits are not competent evidence and

should not be considered by the court. Powell v. Vavro, A1cDona/d & Assocs., 136 S.W.3d 762,

765 (Tex. App. - Dallas 2004, no pet.). 'Hearsay' is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. TEX. R. Evm. 801(d). Hearsay is not admissible evidence "except as provided

by statute or these rules or by other rules prescribed pursuant to statutory authority." TEX. R.

EVID.   802.



 Mr. Brackens, through RBHR, attempted to get Lack of Personal Knowledge
 a contract from the school to move several large Relevance
 mari>le slab counter tops in the Science Building Hearsay
 but was unsuccessful and did not get the work
 because of the price he was quoting. As a
 result, the worlc went undone for a time. The
 school administration became frustrated with
 Mr. Brackens that the work had not been
 completed.


      Obiectionable Reference in Resnonse                               Pae:e Reference
 In fact, Mr. Rollins confirms that the actual job Pg. 13
 of moving the mari>le was originally meant to
 be outsourced, hence Mr. Brackens' effort to
 win the work contract through his side business,
 "RBHR".

         The foregoing statements in paragraph 2 should be disregarded by the Court as irrelevant

to this litigation. They do not establish or make more/less probable the elements Plaintiffs are

required to prove for their allegations against Texas College, as this portion does not make it
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                               PAGE6OF19
                                                                                   APPENDIX 69
                                                                                                      Page 3671
more/less probable that Texas College owed a duty to Plaintiffs, that Texas College breached an

alleged duty owed to Plaintiffs, or that any breach of an alleged duty Texas College owed to

Plaintiffs was the producing/proximate cause of Plaintiffs' injuries. Therefore, the foregoing

statements and references should be disregarded by the Court and stricken as completely

irrelevant.

        The foregoing statements in paragraph 2 of Rollins' affidavit, and the reference in

Plaintiffs' response, should also be stricken and disregarded by the Court because Rollins has

wholly failed to show how he has personal knowledge to testify to same. They are inadmissible

hearsay. Rollins simply states them in a conclusory manner. Therefore, Texas College objects

to said statements and moves the Court to strike and disregard them.



                                                        Lack of Personal Knowledge, competency,
                                                        s eculative

        This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins lacks personal knowledge or competency to testify

to the matters contained therein. Mr. Rollins has in no way demonstrated any knowledge or

competency to testify on the weight of the marble slab, much less that it weighs "at least 150

lbs." Rollins' statement constitutes pure speculation. Texas College objects to same and moves

the Court to disregard and strike it.



 The medical excuses attached to my affidavit as No Predicate
 "Exhibit A" are the excuses that I received Hearsay
 personally from my doctors and that I gave to
 Texas College.




DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE 70F 19
                                                                                APPENDIX 70
                                                                                                    Page 3672
        The generic "medical excuses" Mr. Rollins' references in his affidavit and attached as

Exhibit A are hearsay for which no exception applies and for which no proper predicate has been

laid.   Furthermore, said documents provide no reason for the medical visit nor recite any

restriction, and are in no way probative of Plaintiffs' claims. Texas College objects to same and

moves that the Court disregard and strike them.



 We were not trained or instructed on proper Lack of Personal Knowledge
 lifting techniques or given any direction for
 performing a safe lift of the size.



        Rollins has not established in any way that he has personal knowledge as to what training

or instruction other employees of Texas College had received. Without elaborating on how this

alleged knowledge was acquired, there is insufficient information in the affidavit to establish that

Mr. Rollins knew what type of training other Texas College employees received, what

instructions on proper lifting techniques other Texas College employees received, or what

directions were provided to other Texas College employees.              Therefore, Texas College's

objection for this portion of Mr. Rollins' affidavit should be sustained, these portions should be

stricken, and these portions should not considered by the Court.



                                                        Not Qualified as Expert
                                                        Hearsay


        This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins is not qualified to testify to said matters and the

information is hearsay. This is made clear by his reference to the defective exhibit which does

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGES OF 19
                                                                                  APPENDIX 71
                                                                                                       Page 3673
not diagnose or even recite "experiencing blackouts." Mr. Rollins is not competent to testify as

to his medical diagnosis, as he is neither a doctor nor designated as an expert in medicine.

Therefore, Texas College's objection to this inadmissible embellishment and misstatement in

Rollins' affidavit should be sustained, and this portion stricken and not considered by the Court.


 "I was also instructed by the doctor to avoid Hearsay
 driving. The doctor's note and record attached
 to my affidavit as Exhibit B was the note that I
 received from the doctor at Baylor."

        This portion within paragraph 2 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because the information is hearsay. Any purported statements made by

"the doctor" to Mr. Rollins would be hearsay to which no exception applies. Furthermore, the

doctor's note and records attached to Mr. Rollins' affidavit as Exhibit Bare hearsay for which no

exception applies. Mr. Rollins' sole purpose for including such records is to prove the truth of

the matter asserted by Mr. Rollins. Therefore, Texas College's objection for this portion of Mr.

Rollins' affidavit and the exhibit referenced should be sustained, this portion and exhibit should

be stricken, and this portion and the exhibit referenced disregarded by the Court.



 "Mr. Harris and Mr. Brackens removed me from Lack of Personal Knowledge
 the driving job because they didn't want to Hearsay
 endanger students if I was to blackout while
 behind the wheel."



 Mr. Rollins informed Texas College of these Pg. 2
 infirmities and was later removed from driving
 Texas College students to and from campus as a
 safety precaution.



DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 9OF19
                                                                                APPENDIX 72
                                                                                                     Page 3674
 "prompting the school to remove him from a Page 19
 driving detail he performed."
        This portion within Section 2 of Mr. Rollins' affidavit, and the references in Plaintiffs'

response, should be stricken and not considered by the Court because Mr. Rollins lacks personal

knowledge to testify to the matters contained therein. Mr. Rollins has not established in any way

that he has personal knowledge as to why he was removed from the driving job. To the contrary,

Mr. Rollins is merely advancing speculative self-serving "reasons" and stands in direct

contradiction to the testimony of a Texas College employee who testified as to the actual reason

and who has been shown to have knowledge. Texas College moves the Court to disregard and

strike this portion of Mr. Rollins' affidavit and the references in Plaintiffs' response.




 Under Mr. Brackens authority at Texas College Lack of Personal Knowledge
 there was never an emphasis on safety or Hearsay
 training for any of the worlc we were assigned. Conclusocy
 While under his supervision and leadership at
 Texas College, none of the employees were ever
 sent to any kind of safety training sessions or
 OSHA workshops. This kind of thing made me
 and other employees question the school's
 attitude toward our safe .

        This portion within Section 3 of Mr. Rollins' affidavit should be stricken and not

considered by the Court. Mr. Rollins has not established that he has personal knowledge as to

what type of training sessions or worlcshops other employees were sent to nor the attitude or

feelings of other employees toward Texas College. Rollins offers nothing in his affidavit to

establish any personal knowledge as to what other employees informed him, that they did not

receive training, that they did not attend any workshops, or how he acquired the other

employees' beliefs in regard to the school's attitude toward safety. Without providing such

information, Mr. Rollins has failed to establish that he has the requisite personal knowledge
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                             PAGE lOOF 19
                                                                                   APPENDIX 73
                                                                                                       Page 3675
required to be considered competent to testify to such matters and is merely advancing self-

seiving speculation on the training received and beliefs of other employees. Therefore, Texas

College's objection for this portion of Mr. Rollins' affidavit should be sustained, this portion

should be stricken, and this portion should not considered by the Court.



                                                        Lack of Personal Knowledge




        This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins lacks personal knowledge to testify to the matters

contained therein. Mr. Rollins has not established in any way that he has personal knowledge as

to what type of training other employees received and this conclusoiy statement is in direct

conflict with the testimony of Michael Johnson and Steve Barron, two employees of the College

who testified that they were trained to operate a scissor lift. Barron has testified that he was

trained by Rollins. Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit

should be sustained, and this portion should be stricken, and disregarded by the Court.



                                                    I "Sham" affidavit




 After coming down from the aerial work, Mr. Page 2
 Rollins lost consciousness as he was exiting the
 lift's work platform and fell from the top of the
 platform straight back onto the gym floor.



DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                          PAGE 11OF19
                                                                               APPENDIX 74
                                                                                                     Page 3676
 "Gary Rollins states both in his affidavit and Page 19
 Amended Petition that he lost consciousness
 while existing from the lift."

 "that he lost consciousness existing the lift;"        Page 20




        Texas College objects to this portion of Rollins' Affidavit or any similar statement in his

affidavit, and the corresponding references in Plaintiffs' response, on the basis that it is a "sham"

affidavit in that respect. An affidavit that contradicts the affiant's previous deposition testimony

without any explanation for the change in testimony and is intended to create a fact issue to

defeat summary judgment is considered a "sham" affidavit. Farroux v. Denny's Restaurants,

Inc., 962 S.W.2d 108, 111 (Tex. App. - Houston [1st Dist.] 1997, no pet.).             Without any

explanation as to the change in testimony, the court is to assume that the sole purpose of the

affidavit was to avoid summary judgment. Pando v. Southwest Convenience Stores, 242 S.W.3d

76, 79 (Tex. App. - Eastland 2007, no pet.). "Sham" affidavits are not competent summary

judgment evidence and cannot raise a fact issue. Id.

        Mr. Rollins testified multiple times in his deposition that he did not know if he passed out

or lost consciousness.    Garry Rollins' Deposition, 141:1 - 141:6; 141:25 - 142:6; 142:15 -

143: 1. Despite Mr. Rollins testifying under oath multiple times that he does not know whether

he passed out or lost consciousness, he now takes the firm position that he in fact did pass out or

lose consciousness. Rollins has reversed himself and now taken this contradictory position,

without explanation, in a misguided effort to create a fact issue, where none exists, regarding

whether Texas College breached a duty of care by allegedly forcing Mr. Rollins to utilize the

scissor lift when it purportedly knew Rollins had an alleged history of "seizures and blackouts."


DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 12 OF 19
                                                                                 APPENDIX 75
                                                                                                        Page 3677
The affidavit is clearly a sham and the College respectfully submits that it should be disregarded

and stricken, or alternatively, the foregoing statements and references should be stricken.



                                                have Not Qualified/Incompetent to Testify




         This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins is not qualified to testify to the matter contained

therein. An opinion as to the reasons for surgery or medically necessary procedures would

require the opinion of a medical expert. Mr. Rollins is not a medical expert and has offered

nothing more than a conclusory opinion that it was the a}leged injuries he incurred at Texas

College's campus that necessitated surgery.         Texas College ask that it be disregarded and

stricken by the Court.



 "My surgeon's letter to my lawyer describing Hearsay
 my injury is attached to my affidavit as Exhibit Not shown to be qualified/competent
 D. I have reviewed this document with my
 lawyer and I am familiar with my surgeon's
 opinion. He provided the letter in connection
 with this case."

         This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because the information is hearsay. The letter attached to Rollins'

affidavit as Exhibit D is incompetent hearsay for which no exception applies. Mr. Rollins' sole

purpose for including such records is to prove the truth of the matter asserted by Mr. Rollins.

Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit and the exhibit

referenced should be sustained, and this portion and the exhibit stricken and disregarded by the

Court.
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE 13 OF 19
                                                                                APPENDIX 76
                                                                                                      Page 3678
                                                been Lack of Personal Knowledge
                                                     Irrelevant
                                                     Incompetent to testify


        This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because it is irrelevant hearsay. Mr. Rollins has not established that he

has personal knowledge regarding workers who have been injured or killed because of scissor

lifts, that he has conducted a survey, or that he is qualified or competent to testify as to such

matters.   Furthermore, the foregoing statements are irrelevant to this litigation and have no

probative value. Texas College objects and moves that they be stricken and disregarded.



 "There was another instance at Texas College Lack of Personal Knowledge
 that I am personally familiar with where another Irrelevant
 employee was asked to do work that he was not
 trained to do and got hurt. That employee was
 later fired."

        This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not

considered by the Court because Mr. Rollins lacks personal knowledge to testify on same. Mr.

Rollins has not established in any way that he has personal knowledge that an employee was

asked to do work that he was not trained to do. Instead, he just makes a blanket statement

without information explaining when the information was obtained, how the information was

obtained, whether he observed the alleged incident, or any other information that would tend to

establish that Mr. Rollins had personal knowledge of this occurring.

        Furthermore, Rollins' self-serving testimony that the alleged employee "got hurt"

because he was instructed to perform work he was not trained to do lacks any demonstration of

personal knowledge or competent support. Mr. Rollins has not established how he has personal

DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                        PAGE 14 OF 19
                                                                              APPENDIX 77
                                                                                                    Page 3679
knowledge that this is the reason for any alleged injuries sustained by the alleged employee.

Without establishing how Mr. Rollins has personal knowledge as to this information, Mr.

Rollins' testimony is mere speculation and is inadmissible.

         Still further, Mr. Rollins has not established in any way that he has personal knowledge

that the particular employee was "fired." Instead, he just makes a conclusoiy statement without

information stating when the information was obtained, how the information was obtained, or

any other information that would tend to establish that Mr. Rollins had personal knowledge of

the reasoning for this alleged employees' departure from employment. It amounts to pure

speculation and hearsay. Finally, it is irrelevant to this litigation. Texas College objects and

moves that it be disregarded and stricken.

V.       Objections to information contained in Plaintiffs' response without evidentiary
         support

         A party must attach evidence that would be admissible in trial in a response to a motion

for summary judgment to establish any facts contained therein. See United Blood Servs. v.

Longoria, 938 S.W.2d 29, 30 (Tex. 1997); see TEX. R. C1v. P. 166a(f). If a party does not

substantiate the allegations made within its response to a Motion for Summary Judgment with

admissible summary-judgment proof, the information shall not be considered by the Court. Id.




 "There was no postings at Texas College No evidentiary support
 pertaining to safe lifting techniques" (Page 13)


         Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence before the Court to establish this alleged fact.

Texas College requests that its objection to this portion be sustained and not considered by the

Court.
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE 15 OF 19
                                                                                 APPENDIX 78
                                                                                                       Page 3680
      Obiectionable Statement in Resnonse                     Obiection<s)
 "by refusing Mr. Rollins' request for greater No evidentiary support
 assistance with the marble slab." (Page 13)

        Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence in support of such statement. Texas College

requests that its objection to no evidentiaiy support be sustained, and that this portion be stricken

and not be considered by the Court.



 "The undisputed facts however, are            No evidentiary support
 October incident involved a 'scissor lift'-a
 piece of heavy machinery that is governed by
 CFR 1926.454 (as a "mobile scaffold") of the
 Occupational Health and Safety Act ("OSH
 Act") and the U.S. Department of Labor; and
 readily acknowledged by virtually everyone in
 this case as being potentially dangerous if
 operated by anyone that is untrained or
 unsu rvised." a es 15-16

        Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence in support.              Therefore, Texas College

requests that its objection to same be sustained, and that the unsupported statement be stricken

and disregarded by the Court.



 Texas College was aware of Mr. Rollins' No evidentiary support
 previous injuries and then existing physical
 limits when it ordered him to lift a marble slab
 in September 2013. (Pages 12-13)
 There is also evidence that Texas College was No evidentiary support
 aware that Mr. Rollins had begun suffering
 blackouts but commissioned him to use the lift
 anyway. (Page 19)


DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 16 OF 19
                                                                                 APPENDIX 79
                                                                                                        Page 3681
        The foregoing conclusoiy references in Plaintiffs' response should be disregarded by the

Court because of the lack of any competent evidence to support them.             They are simply

conclusoiy allegations without competent evidentiary support. The College moves they be

stricken and disregarded.



 "Operating a scissor lift is an activity steeped in No evidentiary support
 regulation and safety warnings and there are Hearsay
 multiple statistics quantifying the damage, harm Relevance
 and death resulting from inattention to the
 machine's otential hazards." Pa es 21-22

        Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence to support the truth of such statement. While

Plaintiffs cite to some online statistics, they are not included within Plaintiffs' response, are

hearsay, and there is no way for the Court to determine the credibility of such statistics.

Therefore, Texas College requests that its objection for this portion be sustained, this portion be

stricken from Plaintiffs' response, and this portion not be considered by the Court.



                                                        No evidentiary support



        Texas College objects to this particular statement included within Plaintiffs' response, as

there is no competent summary-judgment evidence in support. The College requests that its

objection be sustained and the unsupported argument be stricken.

VI.     Objections to Affidavit of Burt Thorne

        Texas College objects to the Affidavit of Burt Thorpe in that Thorpe has not been

properly disclosed as an expert witness.         "The affidavit of an expert who is not properly

designated may not be used as evidence in a summary judgment context. Where the expert's
DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 170F 19
                                                                                 APPENDIX 80
                                                                                                      Page 3682
testimony will be excluded at trial on the merits, it will be excluded from a summary judgment

proceeding." Chau v. Riddle, 212 S.W.3d 699, 704 (Tex. App. -Houston [1st Dist.] 2006) rev'd

on other grounds, 254 S.W.3d (Tex. 2008).                Texas College incorporates by reference

Defendants' Motion to Strike Burt Thorpe and Defendants' Reply to Plaintiffs' Response to the

Motion to Strike Burt Thorpe. Texas College re-urges the arguments contained therein and

requests that the Court sustain Texas College's objection, and disregard and strike the Thorpe

affidavit.   Furthermore, as set forth in the College's Reply, Thorpe's affidavit contains

conclusocy statements, portrayed as opinions, which are based on incomplete underlying

evidence and clear misstatements or misinterpretation of underlying facts.            And based on

references and cites to hearsay with no proper predicate or foundation established.

        WHEREFORE, PREMISES CONSIDERED, Defendant, Texas College, respectfully

requests that the foregoing evidence and statements in Plaintiffs' Response be stricken and

disregarded by the Court.

                                                        Respectfully submitted,

                                                        Yarbrough Wilcox, PLLC
                                                        100 E. Ferguson, Suite 1015
                                                        Tyler, Texas 75702
                                                        903-595-3111 office
                                                        903-595-0191 fax

                                                        Isl Dallas W. Tharpe
                                                        Trey Yarbrough
                                                        Bar No. 22133500
                                                        trcy;ll;yw-lawfim1.com
                                                        Dallas W. Tharpe
                                                        Bar No. 24052036
                                                        da1la5'£iyw-lawfim1.com

                                                        ATTORNEYS FOR TEXAS COLLEGE




DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 18 OF 19
                                                                                  APPENDIX 81
                                                                                                       Page 3683
                                  CERTIFICATE OF SERVICE

        This is to certify that a true and correct copy of the above motion has been seived on all

counsel of record in accordance with the Texas Rules of Civil Procedure on February 13, 2015.


                                                Isl Dallas W. Tharpe
                                                Dallas W. Tharpe




DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                         PAGE 19 OF 19
                                                                               APPENDIX 82
                                                                                                     Page 3684
incident. Plaintiffs have produced no evidence that apportions or proves A-1 is responsible for

any damages or injury to Plaintiffs.

Plaintiff Carla Rollins Has No Evidence to Support Her Derivative Claims.

        All of Mrs. Rollins claims against A-1 fail as a matter of law, the loss of consortium

claim in Plaintiffs' petition also fails as a matter of law. In addition, Mrs. Rollins' claims fail

because she has not produced any competent evidence of damages. The testimony attached from

Carla Rollins does not establish that A-1 caused any of the alleged damages she is claiming.

Therefore, Plaintiff Carla Rollins' claims against A-1 should be dismissed.

                                                      v.
          OBJECTIONS TO PLAINTIFFS' SUMMARY JUDGMENT EVIDENCE

        Summary judgment evidence must be admissible under the rule of evidence. 24

Evidential)' exclusions also apply to summary judgment proceedings as they would at trial. 25

Much if not most of Plaintiffs summary judgment evidence is unauthenticated, hearsay, or

otherwise inadmissible, and should be stricken. Facts must be proven in the same manner or

type of evidence that would be admissible at trial. 26 If a party's summary-judgment proof

contains evidence that would not be admissible at trial, the appropriate avenue to challenge such

is through written objections and requesting that the inadmissible summary-judgment proof be

stricken. 27

        Texas Rule of Civil Procedure 193.6(a) provides that "[a] party who fails to make ... a

discovery response in a timely manner may not introduce in evidence material or information

2A United Bloodv. Longoria, 938 S.W.2d 29, 30 (Tex. 1997); see TRCP 166a(f).
2
 ' Fort Brown Villas II Condv. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009).
26
   See TEX. R. CIV. P. 166a(c).
27
   See TEX. R. CIV. P. 166a(f).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                     Page 18
ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE


                                                                                APPENDIX 83
                                                                                                      Page 3718
that was not timely disclosed .... " 28 A-1 objects to the repeated use of evidence not disclosed or

produced in response to written discovery. As cataloged in A-1 's pending Motion to Enforce

Order on Written Discovery and for Sanctions and Motion to Strike Burt Thorpe, Plaintiffs'

pattern of refusing to comply with the Texas Rules and this Court's Order now results in the

automatic exclusion of this evidence.

            4. Excerpts from the deposition of Mike Frazier

            As an initial matter, A-1 objects to the deposition testimony of Mike Frazier as the

attached copy d a draft and not a final copy of the deposition. The deponent has not had a chance

to read and sign the deposition pursuant to the Texas Rules of Civil Procedure. A-1 further

objects to the following testimony:

Question at 59: 10 - Form Objection. Plaintiffs' counsel summarizes and misstates what has been
read from the document.

Questions beginning at 60:21 - Form Objection. Plaintiffs' counsel improperly misstates what
testimony from other witnesses has been in this case and then sets up improper hypothetical's
based on an inaccurate representation of what the previous testimony from other witnesses had
been. Intentionally misleading and vague.

Questions beginning at 61:4 - 14 - Form Objection. Plaintiffs' counsel improperly misstates
what testimony from other witnesses has been in this case and then sets up improper
hypothetical's based on an inaccurate representation of what the previous testimony from other
witnesses had been. Intentionally misleading and vague.

Questions beginning at 62:4- Form Objection. Vague. Misquotes prior testimony to elicit a
misleading response.

            6.       The JLG Owner's Manual Model 1930-ES (excerpts).

            A-1 first objects to this document because it was not disclosed or produced in written

discovery pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to
28
     Tex.R. Civ. P. l 93.6(a).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                     Page 19
ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE


                                                                                APPENDIX 84
                                                                                                       Page 3719
mandatory exclusion.            A-1 further objects to Plaintiffs' attempted use of a purported JLG

Owner's Manual on the basis that Plaintiffs have failed to establish its authenticity or relevance,

or lay any proper predicate for the admissibility of same, either through a qualified witness or

otherwise. The purported manual is inadmissible hearsay and not competent as summary-

judgment proof. No exception to the hearsay rules apply to the subject manual filed as an

independent document with the Court. Since Plaintiffs are attempting to offer statements within

the JLG Owner's Manual to prove the matter asserted, the complete "JLG Owner's Manual"

itself, and the statements referenced within it, are inadmissible hearsay.

           A-1 's objections to the JLG Owner's Manual should be sustained, any reference to the

JLG Owner's Manual should be excluded in total, and the JLG Owner's Manual and any

reference to it should be disregarded by the Court for all purposes.

           7.       Affidavit of Garry Rollins dated February 3rd, 2015 and attached Exhibits.

           An affidavit attached in response to a motion for summary judgment must contain facts

that would be admissible in evidence at trial. 29 The affidavit is so replete with inadmissible

hearsay, irrelevant testimony, and sworn statements that fundamentally contradict Rollins' earlier

sworn deposition testimony (making it a "Sham Affidavit"), A-1 respectfully requests that it be

stricken in its entirety. In the alternative, A-1 's summary judgment motion sets out in detail the

repeated questions to Mr. Rollins and his repeated answers that he does not know how he fell. If

his affidavit is not excluded in its entirety, the statements that directly contradict his prior sworn

testimony should be excluded.



29
     TEX. R. CIV. P. ! 66a(f); United Blood SeMJs. v. Longoria, 938 S.w.2d 29, 30 (Tex. 1997).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                                 Page20
ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE


                                                                                                 APPENDIX 85
                                                                                                                 Page 3720
           Hearsay statements in summary judgment affidavits are not competent evidence and

should not be considered by the court. 30 'Hearsay' is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. TEX. R. EVID. 801(d). Hearsay is not admissible evidence "except as provided

by statute or these rules or by other rules prescribed pursuant to statutory authority." TEX. R.

EVID. 802. Rollins statements regarding any statements made by A-1 employees is purely

hearsay and should be excluded as evidence. Further, Garcy Rollins sworn interrogatory answer

served in January 2015 states:

           INTERROGATORY NO. 18: If You or your attorneys have any knowledge, either
           directly or indirectly, of any statement or admission of any kind made by MPF or
           anyone acting on their behalf regarding the incident, this lawsuit or your injuries
           that might be relevant to this lawsuit, please describe the statement and/or
           admission and identify who made the statement or admission and when it
           occurred.

           ANSWER: At present, none; this is what we are hoping to discover during
               depositions.

Plaintiffs affidavit contradicts his sworn interrogatory answer and such contradictory

statements, in addition to being hearsay, regarding any statements made by A-1 employees

should be excluded.

           Finally, the letter from Plaintiffs surgeon Dr. Barnett attached as an exhibit to the

affidavit is inadmissible hearsay. Plaintiff is not capable of proving this letter up in any way and

can certainly not provide a basis for the opinions contained therein. The letter and the opinions

contained are hearsay without any applicable exception and must be excluded.



30
     Powell v. Vavro, McDonald& Assocs., 136 S.W.3d 762, 765 (Tex. App. - Dallas 2004, no pet.).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                            Page21
ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE


                                                                                           APPENDIX 86
                                                                                                            Page 3721
        9.        Affidavit of Ken Yerrington dated September 23rd, 2014.

        A-1 moves to strike the affidavit of Ken Yerrington as a whole and specifically to the

statement that "Mr. Rollins did not operate our sky lift jack that day ... " as a conclusory

statement that fails to provide a factual basis for the conclusion. Further, A-1 moves to strike the

affidavit of Ken Yerrington based on the clarifying affidavit of Ken Yerrington and his

description of the circumstances surrounding ther original affidavit and his clarification that he

was not present at the gym at all times and therefore could not make any statements as to what

occurred when he was not there.

        10.       Texas College's Answers to Interrogatories.

        Plaintiffs improperly attempt to use Texas College's answers to interrogatories against A-

l. Interrogatory answers "may be used only against the party answering the interrogatories." 31

Specifically, a party's answers to interrogatories cannot be used as evidence against a

codefendant. 32     Accordingly, A-1 moves the Court to strike Texas College's interrogatory

responses as they are improper and incompetent summary judgment evidence against A-1.

        11.       ANSI A92.6.

        Plaintiffs attach a document purported to be ANSI standards without even attempting to

authenticate or otherwise show why this document is in any way relevant or admissible evidence.

A-1 first objects to this document because it was not disclosed or produced in written discovery

pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to mandatory


31
   Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 95 (Tex.App.-Dallas 1997, writ denied) (opinion
on rehearing); Nebgen v. Minnesota Mining & Mfg. Co., 898 S.W.2d 363, 366 (Tex.App.-San Antonio 1995, writ
denied).
32
   Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14 Dist.],2004).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                             Page22
ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE


                                                                                      APPENDIX 87
                                                                                                             Page 3722
exclusion. Further, this docwnent is hearsay and is not certified, authenticated or otherwise

competent, admissible summary-judgment evidence of any type. Evidence that is not properly

authenticated is not competent sununaiy-judgment evidence. See Blanche v. First Nationwide

A1ortg. Corp., 74 S. W.3d 444, 451-52 (Tex. App.-Dallas 2002, no pet.).

        12.      Affidavit of Burt Thorpe.

        A-1 objects to the Affidavit of Burt Thorpe in that Thorpe has not been properly

disclosed as an expert witness. "The affidavit of an expert who is not properly designated may

not be used as evidence in a sununaiy judgment context. Where the expert's testimony will be

excluded at trial on the merits, it will be excluded from a summary judgment proceeding." 33 A-1

incorporates by reference Defendants' Motion to Strike Burt Thorpe and Defendants' Reply to

Plaintiffs' Response to the Motion to Strike Burt Thorpe. A-1 re-urges the arguments contained

therein and requests that the Court sustain A-1 's objection, and disregard and strike the Thorpe

affidavit in total. Furthermore, as set forth in A-1 's, Thorpe's affidavit contains conclusoiy

statements, portrayed as opinions, which are based on incomplete underlying evidence and clear

misstatements or misinterpretation of underlying facts. And based on references and cites to

hearsay with no proper predicate or foundation established.

        A-1 further objects to the opinions and conclusions of Burt Thorpe due to the complete

failure to disclose in response to disclosures or interrogatories or to produce the following

documents that for the basis of his opinions:

        d. OSHA Federal Regulations:
        29 CFR 1910.27- Fixed Ladders,

33
  Chau v. Riddle, 212 S.W.3d 699, 704 (Tex. App. - Houston [I st Dist.] 2006) rev'd on other grounds, 254 S.W.3d
(Tex. 2008).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                                  Page23
ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE


                                                                                           APPENDIX 88
                                                                                                                   Page 3723
       29 CFR 1910.67 - Vehicle Mounted Elevating and Rotating Work
       Platfonns
       29 CFR 1926.453- Aerial Lifts. Scaffolds,
       29 CFR 1926.454 - Scaffolds, Training Requirements.
       e. A "Statement of Best Practices of General Training and Familiarization for
       Aerial Worlc Platform Equipment" published by ARA, ANSI et. al.
       g. ANSI A92.6 safety standards for scissor lifts (referred to as "Self Propelled
       Elevated Work Platfonns")
       h. The JLG Owner's Manual for model "1930-ES"


A-1 objects to all opinions and statements from Burt Thorpe for the reason that these documents

were not disclosed or produced in written discovery pursuant to Texas Rule of Civil Procedure

193 .6(a) and is therefore subject to mandatory exclusion.        Burt Thorpe has no personal

knowledge so his affidavit is otherwise conclusory and is not competent summary judgment

evidence.

       A-1 specifically objects to Paragraph Number 5 for the reasons it is filled with opinions

based on the undisclosed documents referenced above and is also replete with legal conclusions.

A-1 also objects to the "summary" of witness testimony as it impermissible hearsay along with

being misleading. A-1 specifically objects to the statements regarding the owner's manual as

Burt Thorpe has not personal knowledge of the events and he specifically misleads the Court

with his conclusion that Brackens testified that there definitely was no manual on board the lift.

For the many reasons above, Burt Thorpe's affidavit should be excluded in its entirety. At a

minimum, the Court should exclude paragraph number 5 from evidence in this matter.

       14.     Goodwin v. Bluffton College, 2004-0hio-2223, CASE NUMBER 10337, 04-
               LW-1747 (3rd).

       A-1 objects to and moves to exclude this legal opinion from Ohio as wholly irrelevant

and is not competent summary judgment evidence of any type.

DEFE:\'DA:\'T MPF l:\'VESTME:\'TS, LLC D/B/A A-1 RE:\'T                                    Page24
ALL'S REPLY TO PLAl:\'TIFFS' RESPO:\'SE TO TRADITIO:\'AL
A:\'D :\'0-EVIDE:\'CE MOTIO:\' FOR St..:MMARY Jt..:DGME:\'T A:\'D
OBJECTIO:\'S TO PLAl:\'TIFFS' St..:MMARY Jt..:DGME:\'T EVIDE:\'CE


                                                                                APPENDIX 89
                                                                                                     Page 3724
           15.      "Statement of Best Practices of General Training and Familiarization for
                    Aerial Work Platform Equipment", February 2010

           A-1 first objects to this document because it was not disclosed or produced in written

discovery pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to

mandatory exclusion. Further, this document is irrelevant hearsay and is not certified,

authenticated or otherwise competent, admissible summary-judgment evidence of any type. No

attempt was made to identify this document or submit this document in admissible form.

Evidence that is not properly authenticated is not competent summary-judgment evidence. 34

A-1 's objections to this document should be sustained, any reference to it should excluded in

total and any reference to it should be disregarded by the Court for all purposes.

                                                       VIII.
                                                     PRAYER

           Plaintiffs have failed to allege any claim or cause of action for which damages are

recoverable against A-1 as a matter of law. Finally, Plaintiffs have no evidence to support one or

more of the elements of each of their claims against A-1. For the foregoing reasons, Defendant

A-1 requests that this Court sustain all objections to Plaintiffs' improper summary judgment

evidence, dismiss all claims against A-1 and Defendant also prays for such other and further

relief, at law or in equity, to which it may be justly entitled.




34
     See Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451-52 (Tex. App.-Dallas 2002, no pet.).

DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                                      Page 2!5
ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE


                                                                                              APPENDIX 90
                                                                                                                        Page 3725
                                          Respectfully submitted,

                                          MARTI'.'", DISIERE,JEFFERSO:\" & WISDOM, L.L.P.

                                          By: Isl Ryan K. Geddie
                                             Todd M. Lonergan
                                              State Bar No. 12513700
                                             Marie J. Dyer
                                              State Bar No. 06317500
                                             Ryan K. Geddie
                                              State Bar No. 24055541
                                             Tollway Plaza One
                                              16000 N. Dallas Parkway, Suite 800
                                             Dallas, Texas 75248
                                             Telephone:      (214) 420-5500
                                             Facsimile:      (214) 420-5501
                                              lonergan1t.mdjwlaw.com
                                             dyer1t.mdjwlaw.com
                                              geddie:a:mdjwlaw .com

                                              ATTORNEYS FOR DEFENDANT MPF
                                              INVESTMENTS, LLC d/b/a "A-1 RENT ALL"

                                 CERTIFICATE OF SERVICE

        This is to certify that a true and correct copy of the above pleading has been served via e-
service pursuant to Texas Rules of Civil Procedure 21 (a) on this the 13th day of February 2015
to:

Ernesto D. Sigmon
Law Offices of Ernesto D. Sigmon
416 West Saulnier Street
Houston, Texas 77019

Trey Yarbrough
Yarbrough Wilcox Gunter, PLLC
100 East Ferguson, Suite 1015
Tyler, Texas 75702

                                             ls/Ryan K. Geddie
                                             Ryan K. Geddie



DEFE:\'DA:\'T MPF l:\'VESTME:\'TS, LLC D/B/A A-I RE:\'T                                      Page26
ALL'S REPLY TO PLAl:\'TIFFS' RESPO:\'SE TO TRADITIO:\'AL
A:\'D :\'0-EVIDE:\'CE MOTIO:\' FOR St..:MMARY Jt..:DGME:\'T A:\'D
OBJECTIO:\'S TO PLAl:\'TIFFS' St..:MMARY Jt..:DGME:\'T EVIDE:\'CE



                                                                                APPENDIX 91
                                                                                                       Page 3726
                                                                Garry L. Rollins


                                                                                                                              Page I

     1                                                   CAUSE NO. 13-3353-A
     2
                           L. ROLLIKS and                                          IN          DISTRICT COURT
     3                     J, ROLLIKS


     4                            Plaintiffs

     5        vs.                                                                  SMITH COUNTY, TEXAS

     6        TEXAS COLLEGE,
              METHOJIST
     7                MPF INVESTMENTS,
              LLC, d/b/a "A-1 RENT ALL"
     8
                                  Defendar.ts                                      7th JUDIC:AL DISTRICT
     9
  10

  11
                                                                                    DEPOSITION CF
  12
                    EXHIBIT                                             L.
  13

  14
             t_A_                                               C'UL Y 7 , 2()14


  15
  16                ORAL AKD VIDEOTAPED DEPOSITION OF GARRY L. ROLL:NS,
  17          produced as a witness            :nstance of the
  18          and duly            was taken in the above-styled and
  :. 9        numbered cause on July 7,                8:44 a.rn. to 3:31
  20          p.rn., before               Carter, CSR in and      the
  21          of Texas, reported by                        at tne law
  22          offices of            wa:ker, PC, 121 N. Spring Avenue,
  23          Tyler, Texas,              to the Texas Rules of Civil
  24          Procedure and tr.e provisions stated on        record or
  25          attacr.ed :'1ereto,


                                         DepoTexas, Inc. I Sunbelt Reporting & Litigation Services
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                                                                                                                            Page 202

     1        is
     2                    A.       No,                  did not.
     3                    Q.                       And I'm                           to -- we've been referring
     4               it as                                14th,         I'm just going to refer to that
     5        as the                                 accident;              is that fair?
     6                                        MR. SIGMO:J:                  Object to the form.
     7                    Q.        (BY MR. GEDDIE)                       I ' l l say September 14th
     8        incident then.                       If I say September                                incident, will                    I




     9        you know                         I'm referring to?
   10                    A.        Yes.
   11                     Q.       All right.                    Mr. Rollins,            what is your currer.t
   :2                          address?
   13                     A.                       my current e-mail address?
   14                     Q.       Yes,        sir.
   15                    A.
   16                     Q.       And is that the same one that you were using                                                            ·
   17                                and                          of 2013?
   18                    A.        : might have used my wife's,                                I'm net a hundred
  19          percent sure.
  20                      Q.       Okay.           And I ' l l really just get to the pcint,
  21          did you e-mail any of your friends or co-workers
  22                               about                    accident or your injury?
  23                      A.              answer                  that is I can't e-mail anybody
  24                               because -                            read.
  25                      Q.       Okay.



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     1                   A.       And in order to e-mail somebody,                                      you got to be
     2        ab:e to read to spell.                                So, my answer to that is no.
                         Q.       Okay.                                       But you do have an e-mail
     4        address that you just gave me.
     5                   A.       Yes.
     6                   Q.       And does typically your wife help you
     7        back                forth --
     8                   A.       My wife never                                       anybody.
     9                   Q.       Okay.           So,      I assume by virtue of what you jus:
   lJ         testified to,                  would it be true to say that you're
   11         aole to read any operator manuals for any of the
   12         equipment that you use in your job.
   13                    A.       No,       I can't read them.
   14                    Q.       So,             your roughly 20 years of                                                    in
  15          the                                 field,          I assume you've used lots of
  16          different                           of power                                    and                like
  17                                          MR.      s=SMON:            Objec: :o the form.
  :..8                   A.       I've never used any heavy equipment
  19          maintenance that I've done.
  20                     Q.        (3Y MR.                              Have you used handheld
  21          equipme::1t?
  22                     A.       Drills,            saws,        yes.
  23                     Q.           . d ers,
                                  G rin                  t hat      sort           .::: th.
                                                                                         .      ?


  24                     A.       Yes.
  25                     Q.       And a:l :hose times you used that,                                         you were


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                                                                                                                   Page 204

      1                   able to                  any of the                               manuals; is that
     2           true?
     3                   A.
      4                  Q.     In               instar.ces,                    you rely on                  people
     5                   you                 for to train you on how to use those
      6          tools?
     7                   A.    Yes,       I did.
     8                   Q.    All rigtt.              Mr. Rollins, your residence is in
     9           DeSoto, Texas; is                         true?
   10                    A.    Yes, sir.
   11                    Q.     Is             Dallas County?
   12                    A.    Yes.
   13                    Q.    Okay.         Sir.ce October of 2013, have you made any
   14            trips outside of Dallas County other                                            to be tere
   15            today?
   16                    A.    Yes.
   17                    Q.    Ckay.         And                  have you gone?
   18                    A.     San Antonio.
   19                    Q.    Approximately wr.er. did you go to San Antonio?
   20                    A.     Cid you say partially?
   21                    Q.    A9proximately when did you go?
   22                    A.    Oh,       I don't                    maybe two or ttree months
   23            ago,           not just accurate.
   24                    Q.    And what were you doing in San Antonio?
   25                    A.     Seeing a


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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

                                                                  [5] employer's specific instruction for employee to clean up
                                                                  oily liquid spill in restrooms was not basis for creating third
                                                                  exception to general “no duty” rule; and

                                                                  [6] employee did not have to show that employer engaged in
                                                                  contemporaneously negligent activity in order to show that
                                                                  employer breached duty to provide employee with necessary
                                                                  instrumentalities to perform job.


                                                                  Certified question answered.
Synopsis
Background: Employee filed suit against nonsubscribing
employer for injuries sustained in slip and fall while cleaning
                                                                   West Headnotes (30)
oily liquid spill in employer's restrooms, based on claims for
negligence, gross negligence, and premises liability. Upon
removal, the United States District Court for the Northern         [1]    Labor and Employment
District of Texas, 2012 WL 2795674, entered summary                           Dangers or defects known to employee
judgment for employer, and employee appealed. The Court of                Labor and Employment
Appeals, 731 F.3d 418, affirmed grant of summary judgment                     Obvious dangers
on negligence claims, but reversed summary judgment on
                                                                          Neither the obviousness of a danger nor
premises liability claims, and certified question seeking
                                                                          an employee's awareness of it eliminates an
clarification of Texas premises liability law.
                                                                          employer's duty to provide a safe workplace; that
                                                                          duty always exists.

Holdings: The Supreme Court, Boyd, J., held that:                         Cases that cite this headnote


[1] generally, an employer does not have a duty to warn            [2]    Negligence
employees of dangers that are open and obvious or already                     Who are invitees
known to the employee, overruling Sears, Roebuck & Co. v.                 An “invitee”, for the purposes of establishing a
Robinson, 154 Tex. 336, 280 S.W.2d 238;                                   landowner's duty of care, is one who enters the
                                                                          property of another with the owner's knowledge
[2] “criminal activity” exception to general “no duty” rule               and for the mutual benefit of both.
applied if risk resulted from third party's criminal conduct
for which employer should have anticipated that harm would                Cases that cite this headnote
occur, despite employee's knowledge of risks;

                                                                   [3]    Labor and Employment
[3] exception to general “no duty” rule applied if it was
                                                                              Nature and Scope of Duty Owed by
necessary for employee to use dangerous premises and
                                                                          Employer
employer should have anticipated that employee was unable
to take measures to avoid risk, despite awareness of risk;                While an employer's liability for an employee's
                                                                          injury may differ from that of other landowners
[4] in event either exception to “no duty” rule applied,                  due to the statutory waiver of its defenses, its
Texas Workers' Compensation Act prevented nonsubscribing                  premises-liability duty is the same as that owed
employer from relying on employee's awareness of risk as                  by landowners to invitees generally. Tex. Labor
defense;                                                                  Code Ann. § 406.033(a).

                                                                          Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  APPENDIX 96               1
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154


 [4]    Negligence                                                 2 Cases that cite this headnote
            Care required in general
        A landowner has a duty to exercise reasonable       [9]    Negligence
        care to make the premises safe for invitees,                   Reasonable or ordinary care in general
        and the landowner can satisfy this duty by
                                                                   In the premises liability context, a landowner has
        eliminating the dangerous condition or by
                                                                   no duty to take safety measures beyond those that
        mitigating the condition so that it is no longer
                                                                   an ordinary, reasonable landowner would take.
        unreasonably dangerous.
                                                                   Cases that cite this headnote
        Cases that cite this headnote

                                                            [10]   Labor and Employment
 [5]    Labor and Employment
                                                                       Dangers from extraneous sources
            Dangers or defects known to employee
                                                                   “Criminal activity” exception to general rule that
        Labor and Employment
                                                                   employer owed no duty to warn employee of
            Obvious dangers
                                                                   unreasonably dangerous condition of property
        Generally, an employer does not have a duty                that was open and obvious applied, so as to
        to warn employees of dangers that are open                 impose liability on employer for employee's
        and obvious or already known to the employee;              injury, if risk resulted from third party's
        overruling Sears, Roebuck & Co. v. Robinson,               criminal conduct for which employer should
        154 Tex. 336, 280 S.W.2d 238.                              have anticipated that harm would occur, despite
                                                                   employee's knowledge of risks.
        Cases that cite this headnote
                                                                   Cases that cite this headnote
 [6]    Negligence
            Care required in general                        [11]   Negligence
        Ordinarily, the landowner need not both                        Duty to warn
        make reasonably safe and warn invitees about               Negligence
        an unreasonably dangerous condition of the                     Protection against acts of third persons
        property, and the landowner can satisfy its duty           generally
        to the invitee by providing an adequate warning
                                                                   An exception to the general rule that a
        even if the unreasonably dangerous condition
                                                                   landowner has no duty to warn an invitee
        remains.
                                                                   of unreasonably dangerous conditions that are
        1 Cases that cite this headnote                            obvious or known to the invitee, known as the
                                                                   “criminal activity” exception, applies in cases
                                                                   involving dangers resulting from a third party's
 [7]    Negligence                                                 criminal conduct in which the landowner should
            Care required in general                               have anticipated that the harm would occur,
        A landowner's duty to invitees is not absolute.            despite the invitee's knowledge of the risks;
                                                                   in such cases, the invitee's appreciation of the
        Cases that cite this headnote                              danger remains relevant to the landowner's
                                                                   proportionate-responsibility defenses, but it does
 [8]    Negligence                                                 not relieve the landowner of its duty to take
            Reasonable or ordinary care in general                 reasonable steps to make the premises safe.
        A landowner's premises-liability duties, like its
                                                                   Cases that cite this headnote
        negligence duties, are limited to a duty to
        exercise ordinary, reasonable care.
                                                            [12]   Negligence


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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

             Duty to warn                                             invitee of an unreasonably dangerous condition
        Negligence                                                    that is open and obvious applies, the invitee's
            Care required in general                                  awareness of the risk does not relieve the
                                                                      landowner's duty to make the premises safe, but
        An exception to the general rule that a landowner
                                                                      it remains relevant to the issue of proportionate
        owes an invitee no duty to warn of an
                                                                      responsibility, unless that defense is legally
        unreasonable dangerous condition that is open
                                                                      unavailable. Restatement (Second) of Torts §
        and obvious, known as the “necessary use”
                                                                      361.
        exception, arises when the facts demonstrate
        that (1) it was necessary that the invitee use                Cases that cite this headnote
        the unreasonably dangerous premises, and (2)
        the landowner should have anticipated that the
        invitee was unable to avoid the unreasonable           [16]   Negligence
        risks despite the invitee's awareness of them.                    Duty as question of fact or law generally
        Restatement (Second) of Torts § 361.                          Whether a duty exists is a question of law for the
                                                                      court, and if no duty exists, a jury cannot impose
        Cases that cite this headnote                                 a duty anyway.

                                                                      Cases that cite this headnote
 [13]   Negligence
            Buildings and structures
        One's conduct after he is possessed of full            [17]   Negligence
        knowledge of a dangerous condition, under                         As Grounds for Apportionment;
        the circumstances, may be justified or deemed                 Comparative Negligence Doctrine
        negligent depending upon such things as the                   Negligence
        plaintiff's status, the nature of the structure, the              Effect of comparative negligence
        urgency or lack of it for attempting to reach                 Negligence
        a destination, the availability of an alternative,                 Effect of others' fault; comparative
        one's familiarity or lack of it, the degree and               negligence
        seriousness of the danger, the availability of aid
                                                                      Negligence
        from others, the kind and extent of a warning, and
                                                                          Assumption of risk
        the precautions taken under the circumstances by
                                                                      Although the common law affirmative defenses
        the plaintiff.
                                                                      of assumption of the risk and contributory
        Cases that cite this headnote                                 negligence no longer exist under Texas law,
                                                                      the underlying concepts remain relevant under
                                                                      Texas's proportionate-responsibility statute; in
 [14]   Negligence
                                                                      other words, although these are no longer
            Open and obvious dangers
                                                                      affirmative defenses that act as an absolute bar
        Not every open and obvious condition of danger                to recovery, they remain defensive issues on
        on the land precludes recovery.                               which defendants, not plaintiffs, bear the burden
                                                                      of proof. Tex. Civ. Prac. & Rem. Code Ann. §
        Cases that cite this headnote
                                                                      33.001.

 [15]   Negligence                                                    Cases that cite this headnote
            Duty to warn
        Negligence                                             [18]   Labor and Employment
            Care required in general                                      Dangers or defects known to employee
        When the necessary-use exception to the general               Labor and Employment
        rule that a landowner owes no duty to warn an                     Obvious dangers



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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

        Workers' Compensation                                        Tex. Labor Code Ann. § 406.033(a); Tex. Civ.
           Defenses; Abrogation or Modification of                   Prac. & Rem. Code Ann. § 33.001.
        Common-Law Defenses
                                                                     Cases that cite this headnote
        An exception to the general rule that an employer
        owes no duty to warn or train employees with
        respect to dangers that are commonly known            [20]   Workers' Compensation
        or already appreciated by the employee exists,                  Defenses; Abrogation or Modification of
        and a non-subscribing employer owes such a                   Common-Law Defenses
        duty, despite the obviousness or employee's                  Workers' Compensation
        appreciation of a danger, because, despite the                    Reduction of damages for contributory
        awareness of the danger, it is necessary that                negligence; comparative negligence
        the employee use the dangerous premises and
                                                                     The Texas Workers' Compensation Act's waiver
        the employer should anticipate that the employee
                                                                     of an employer's defenses to liability under
        is unable to take measures to avoid the risk;
                                                                     the proportionate responsibility statute prohibits
        in such cases, the employer cannot rely on the
                                                                     a nonsubscribing employer from relying on
        fact that the risk was obvious and known to the
                                                                     an employee's assumption of the risk or
        employee to argue that the employee bears some
                                                                     contributory negligence. Tex. Labor Code Ann.
        portion of the responsibility for his own injuries,
                                                                     § 406.033(a)(1), (2); Tex. Civ. Prac. & Rem.
        because the Texas Workers' Compensation Act
                                                                     Code Ann. § 33.001.
        waives those defenses. Tex. Labor Code Ann.
        § 406.033(a); Restatement (Second) of Torts §                Cases that cite this headnote
        361.

        Cases that cite this headnote                         [21]   Workers' Compensation
                                                                        Defenses; Abrogation or Modification of
                                                                     Common-Law Defenses
 [19]   Labor and Employment
                                                                     In cases in which the criminal-activity or
            Dangers or defects known to employee
                                                                     necessary-use exceptions to the general rule that
        Workers' Compensation
                                                                     an employer owes no duty to warn or train
           Defenses; Abrogation or Modification of
                                                                     employees with respect to dangers that are
        Common-Law Defenses
                                                                     commonly known or already appreciated by the
        Workers' Compensation                                        employee apply, and thus, the employer has a
             Reduction of damages for contributory                   duty to the employee despite the employee's
        negligence; comparative negligence                           awareness of the risk, the Texas Workers'
        Although an employee's awareness of an                       Compensation Act will prevent the employer
        unreasonable risk may be relevant to the defenses            from relying on the employee's awareness of the
        of contributory negligence and the assumption                risk as a defense to the employee's claims. Tex.
        of risk under the proportionate responsibility               Labor Code Ann. § 406.033(a)(1), (2); Tex. Civ.
        statute, the general rule that an employer owes              Prac. & Rem. Code Ann. § 33.001; Restatement
        no duty to warn or train employees with respect              (Second) of Torts § 361.
        to dangers that are commonly known or already
        appreciated by the employee may permit an                    Cases that cite this headnote
        employer to avoid liability despite the waiver
        of those defenses under the Texas Workers'            [22]   Labor and Employment
        Compensation Act; however, it does so not                        Dangers or defects known to employee
        by undermining the Legislature's prerogative to              Labor and Employment
        determine when defenses may or may not apply,                    Obvious dangers
        but by fulfilling the court's role to determine
                                                                     Nonsubscribing employer's specific instruction
        when a party owes a legal duty to begin with.
                                                                     for employee to clean up oily liquid spill


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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

        in restrooms of employer's store was not
        basis for creating exception to general rule                 2 Cases that cite this headnote
        that employer owed no duty to protect or
        warn employee against unreasonably dangerous          [26]   Labor and Employment
        premises condition that was open and obvious or                  Existence of Duty on Part of Employer
        otherwise known to employee.
                                                                     Labor and Employment
        Cases that cite this headnote                                    Nature and scope of duty owed by employer
                                                                     When the landowner is also an employer and
                                                                     the invitee is also its employee, this relationship
 [23]   Labor and Employment
                                                                     may give rise to additional duties, such as a
             Working Conditions and Methods of
                                                                     duty to provide necessary equipment, training, or
        Performing Work
                                                                     supervision.
        When an employee's injury results from
        performing the same character of work that                   2 Cases that cite this headnote
        employees in that position have always done, an
        employer is not liable if there is no evidence that
                                                              [27]   Negligence
        the work is unusually precarious.
                                                                         Nature
        Cases that cite this headnote                                Negligence
                                                                         Concurrent causes

 [24]   Labor and Employment                                         When an injury arises from a premises condition,
            Kind of Equipment                                        it is often the case that any resulting claim sounds
                                                                     exclusively in premises liability, but that is not
        Employee      did     not   have     to    show
                                                                     necessarily the case, because an injury can have
        that nonsubscribing employer engaged in
                                                                     more than one proximate cause.
        contemporaneously negligent activity in order to
        show that employer breached duty to provide                  Cases that cite this headnote
        employee with necessary instrumentalities to
        perform job of cleaning up oily liquid spill in
                                                              [28]   Labor and Employment
        restrooms of employer's store, in action against
                                                                         Kind of Equipment
        employer for injuries sustained in slip-and-fall
        while cleaning spill.                                        Contemporaneous negligent activity of an
                                                                     employer is not an element of an employee's
        Cases that cite this headnote                                claim based on the employer's failure to
                                                                     provide the employee with the necessary
 [25]   Negligence                                                   instrumentalities to perform his job; to the
            Nature                                                   contrary, an instrumentalities claim may be
                                                                     founded on nonfeasance or misfeasance, neither
        Negligence
                                                                     of which is particularly likely to occur
            Care required in general
                                                                     contemporaneously with a resulting injury to the
        In a typical premises-liability case, the                    employee.
        landowner owes the invitee two duties: a duty to
        keep the premises reasonably safe and a duty not             1 Cases that cite this headnote
        to injure the invitee through contemporaneous
        negligent activity; thus, when a claim does not
                                                              [29]   Labor and Employment
        result from contemporaneous activity, the invitee
                                                                         Kind of Equipment
        has no negligent-activity claim, and his claim
                                                                     Because contemporaneous negligent activity by
        sounds exclusively in premises-liability.
                                                                     the employer is not necessary to an injured
                                                                     employee's claim that the employer failed to



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.           APPENDIX 100                   5
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

        provide the employee with the necessary and safe
        instrumentalities to perform the job, the absence     Opinion
        of contemporaneous activity does not necessarily
                                                              Justice Boyd delivered the opinion of the Court, in which
        bar an instrumentalities claim.
                                                              Justice Johnson, Justice Guzman, Justice Lehrmann, and
        3 Cases that cite this headnote                       Justice Devine joined, and in which Chief Justice Hecht,
                                                              Justice Green, Justice Willett, and Justice Brown joined
                                                              except as to Part IV.
 [30]   Labor and Employment
            Nature and scope of duty owed by employer         Texas employers have a duty to exercise reasonable care
        Labor and Employment                                  to provide their employees with a safe place to work. Like
            Kind of Equipment                                 all others who own or operate land, employers generally
                                                              may fulfill their premises-liability duties to invitees either
        Only an employer that has control over the
                                                              by eliminating any unreasonably dangerous condition or by
        premises where the employee is injured has
                                                              adequately warning of the risks. In this case, the employer,
        a premises-liability duty to the employee,
                                                              which had opted out of the Texas workers' compensation
        but the duty to provide necessary and safe
                                                              system, sought to eliminate the danger, but the employee
        instrumentalities to perform the job applies to
                                                              who was responsible for the task was himself injured while
        employers generally.
                                                              doing so. The employer could not have eliminated the danger
        2 Cases that cite this headnote                       without assigning the task to an employee, and the employee
                                                              concedes that he was fully aware of the risks. Addressing a
                                                              certified question from the United States Court of Appeals
                                                              for the Fifth Circuit, 1 we clarify that, under Texas law,
 *197 ON CERTIFIED QUESTION FROM THE UNITED                   (1) subject to two limited exceptions, an employer generally
STATES COURT OF APPEALS FOR THE FIFTH                         does not have a duty to warn or protect its employees
CIRCUIT.                                                      from unreasonably dangerous premises conditions that are
                                                              open and obvious or known to the employee; and (2) under
Attorneys and Law Firms                                       this general rule, the Texas Workers' Compensation Act's
                                                              (TWCA) waiver of a nonsubscribing employer's common law
Matthew Joseph Kita, Attorney at Law, Dallas, for Appellant
                                                              defenses does not eliminate an employee's burden of proving
Randy Austin.
                                                              that the employer owed him a duty as an element of a premises
Donna C. Peavler, Bryan Kyle Briscoe, The Peavler Group,      liability claim. We also conclude that contemporaneous
P.C., Grapevine, Mike A. Hatchell, Locke Lord LLP, Austin,    negligent activity by the employer is not necessary to an
Dale Wainwright, Bracewell & Giuliani, LLP, Austin,           employee's instrumentalities claim.
Charles R. 'Skip' Watson Jr., Locke Lord LLP, Austin, for
Appellee Kroger Texas, L.P.
                                                                                            I.
Deborah J. Race, Ireland Carroll & Kelley, P.C., Tyler, for
Amicus Curiae Brookshire Grocery Co., Daryl Flood, Inc.
and Quiktrip Corporation.                                                             Background

*198 Brian A. Sheguit, The Bassett Firm, Dallas, for          Randy Austin fell while mopping a restroom floor at the
Amicus Curiae Mission Petroleum Carriers, Inc.                Kroger store where he worked in Mesquite, Texas. An
                                                              oily liquid had leaked through the store's ventilation ducts
Harold McCall Jr., San Antonio, Javier Espinoza, The          after another Kroger employee power-washed the store's
Espinoza Law Firm, PLLC, San Antonio, for Amicus Curiae       condenser units, creating spills in both the men's and women's
San Antonio Trial Lawyers Association.                        restrooms. Consistent with Austin's duties as a self-described
                                                              “floor clean-up person,” Austin's supervisor directed him
Peter M. Kelly, Kelly, Durham & Pittard, L.L.P., Houston,
                                                              to clean the spills. Kroger's safety handbook recommends
for Amicus Curiae Texas Trial Lawyers Association.
                                                              that employees clean spills using a “Spill Magic” system



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 101            6
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

that involves a powdery absorbent product, a broom, and                            Put differently, does the employee's
a dustpan. According to the handbook, using this system                            awareness of the defect eliminate the
reduces the likelihood of a slip-and-fall by 25%. Contrary to                      employer's duty to maintain a safe
the handbook's instruction to store managers, however, the                         workplace?
system was not available at the store that day. Austin thus
attempted to clean the liquid with a mop. Austin successfully        Id. at 204.
cleaned the women's room and then moved to the men's room,
where the brownish liquid covered about 80% of the floor.
Recognizing the danger that the slippery liquid presented,                                          II.
he placed “wet floor” signs around the area and carefully
took “baby steps” as he moved throughout the spill. *199
After successfully cleaning 30% to 40% of the spill, Austin                            The Parties' Arguments
slipped in the remaining liquid and fell, fracturing his femur       The parties' arguments in this case reflect the significance
and dislocating his hip. As a result, he spent nine months in        of characterizing the question as involving Kroger's “duty”
the hospital and underwent six surgeries, leaving his left leg       to its employees. Outside of the employment context, a
two inches shorter than his right.
                                                                     landowner 7 sued for premises *200 liability may rely on an
                                                                     invitee's awareness of the dangerous condition as evidence of
Austin's employer, Kroger Texas L.P., had elected not
                                                                     the invitee's own negligence and proportionate responsibility,
to subscribe to the Texas workers' compensation system. 2            as a defense to the invitee's claims. See TEX. CIV. PRAC. &
Austin sued Kroger in state court, asserting claims for              REM. CODEE §§ 33.001–.017 (proportionate responsibility
negligence, gross negligence, and premises liability. In             statute). And an employer that elects to subscribe to the
support of his negligence claim, Austin alleged that Kroger          Texas workers' compensation system will not face the kinds
had engaged in negligent activities 3 and had failed to              of claims that Austin has asserted in this case, because
provide a “necessary instrumentality”—specifically, the Spill        the TWCA provides the employee's exclusive remedies. See
Magic system. 4 Kroger removed the case to federal district          TEX. LAB. CODE § 406.033(a); In re Crawford & Co.,
court, which granted Kroger's motion for summary judgment            458 S.W.3d 920, 923–26 (Tex.2015); Tex. Mut. Ins. Co. v.
on all of Austin's claims. The Fifth Circuit Court of                Ruttiger, 381 S.W.3d 430 (Tex.2012). But an employer that
                                                                     opts out of the workers' compensation system, as Kroger
Appeals affirmed as to Austin's negligent activity 5 and
                                                                     has done here, is prohibited from asserting the employee's
gross negligence 6 claims, but reversed and remanded the
                                                                     negligence or assumption of the risk as a defense. TEX. LAB.
necessary-instrumentalities claim because the district court
                                                                     CODE § 406.033(a) (providing that, in an action against
had “failed to consider whether ... [that theory] is sufficient to
                                                                     a nonsubscribing employer, “it is not a defense that: (1)
support a stand-alone ordinary negligence claim.” 746 F.3d at
                                                                     the employee was guilty of contributory negligence; (2) the
197. As to Austin's premises-liability claim, the Fifth Circuit
                                                                     employee assumed the risk of injury or death; or (3) the injury
found that the “nature and scope” of an employer's duty to
                                                                     or death was caused by the negligence of a fellow employee”).
provide its employees with a safe workplace is “arguably
                                                                     If Austin's awareness and assumption of the risks are relevant
unclear” under Texas law “when an employee is aware of
                                                                     here, they can be relevant only to the question of whether
the hazard or risk at issue.” Id. at 199. Concluding that “[i]t
                                                                     Kroger owed Austin a duty at all. If Kroger owed Austin
is best to leave the resolution of these matters to the good
                                                                     a duty, its breach of that duty would result in liability for all
judgment of the highest state court,” the Fifth Circuit certified
                                                                     of Austin's damages, regardless of Austin's awareness of the
the following question:
                                                                     risks or any negligence on Austin's part.
             Pursuant to Texas law, including §
             406.033(a)(1)–(3) of the Texas Labor                    Kroger argues that this Court's recent “trilogy” of employer-
             Code, can an employee recover against                   employee tort cases confirms that an employer has no duty
             a non-subscribing employer for an                       to warn or protect employees against “hazards that are
             injury caused by a premises defect of                   commonly known or already appreciated by the employee.”
             which he was fully aware but that his                   See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794
             job duties required him to remedy?                      (Tex.2008) (holding employer owed no duty to employee
                                                                     injured while stepping over cart in store's cooler); Jack in


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                       APPENDIX 102             7
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

the Box, Inc. v. Skiles, 221 S.W.3d 566, 568–69 (Tex.2007)
(holding employer owed no duty to employee injured while
                                                                              Defining the Premises–Liability Duty
climbing over broken lift gate to unload truck); Kroger Co. v.
Elwood, 197 S.W.3d 793, 795 (Tex.2006) (holding employer            [1] We begin by noting that the Fifth Circuit's alternative
owed no duty to employee injured when he placed his hand           iteration of its certified question asks, “[D]oes the employee's
in car doorjamb while loading customer's groceries into car in     awareness of the defect eliminate[s] the employer's duty to
sloped parking lot). Because the risk of slipping and falling on   maintain a safe workplace?” The answer to that question
a wet floor is commonly known and Austin admitted that he          is “no.” As Kroger concedes, neither the obviousness of
was aware of the wet floor and appreciated the risk, Kroger        a danger nor an employee's awareness of it “eliminates”
asserts that it had no duty to protect or warn Austin against      an employer's duty to “provide a safe workplace.” That
that risk. Kroger further argues that this Court's opinions        duty always exists, but the question here is whether that
in Elwood, Skiles, and Goss demonstrate that, although the         duty includes a more specific duty to warn or protect
TWCA waives a nonsubscribing employer's defenses, it does          employees against obvious or known hazards. We therefore
not relieve the employee of the burden of proving that the         begin by addressing the specific duties that comprise an
employer owed a duty.                                              employer's duty to provide a safe workplace in the context
                                                                   of premises-liability claims. We conclude that, with two
Austin contends that Kroger is relying on the old “no-             notable exceptions, an employer's premises-liability duty to
duty rule,” which this Court abolished in the employment-          its employee includes only the duty to protect or warn the
law context sixty years ago, see Sears, Roebuck & Co. v.           employee against concealed hazards of which the employer
Robinson, 154 Tex. 336, 280 S.W.2d 238 (1955), and in all          is aware, or reasonably should have been aware, but the
landowner-invitee cases nearly forty years ago, see Parker         employee is not. We then discuss how these principles operate
v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). Under           in light of the TWCA's waiver of defenses and our abolition
Robinson and Parker, Austin contends, his awareness of the         of the no-duty rule in Robinson and Parker.
dangerous condition does not affect Kroger's legal duty.
Instead, his awareness can be relevant only to whether he
was negligent and thus to his proportionate responsibility,        A. The Duty to Warn
which the TWCA prohibits Kroger from raising as a defense.         We endeavor here to answer three questions: (1) whether
Thus, according to Austin, Kroger cannot rely on Austin's          an employer's premises liability to employees differs from
awareness of the danger at all.                                    other landowners' premises liability to invitees; (2) whether a
                                                                   landowner's duty to invitees is a duty to “make safe,” or a duty
 *201 Reviewing the parties' arguments, the Fifth Circuit          to “warn,” or a duty to “make safe or warn”; and (3) whether
concluded that the cases on which the parties rely represent       an invitee's knowledge of a dangerous condition goes to the
“arguably conflicting Texas Supreme Court precedent.” 746          “duty” element of the plaintiff's case or to the defendant's
F.3d at 197. We accepted the certified question as an              proportionate-responsibility defenses or to both, especially
opportunity to provide greater certainty in this important area    in light of the TWCA's waiver of defenses. We conclude
of the law. Reviewing this Court's precedents, we endeavor         that (1) employers owe employees the same premises-liability
to clarify where helpful and resolve apparent conflicts where      duty that other landowners owe to their invitees; (2) in most
needed. We do so mindful that our decisions regarding              cases, the landowner's premises-liability duty is to either
common law duties involve “complex considerations of               make safe or warn invitees of concealed dangers of which
public policy including ‘social, economic, and political           the landowner is or should be aware but the invitee is not;
questions and their application to the facts at hand.’ ”           and (3) in most cases, a landowner owes no duty to protect an
Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 410       invitee against a dangerous condition that is open and obvious
(Tex.2009) (quoting Humble Sand & Gravel, Inc. v. Gomez,           or known to the invitee, and the TWCA's waiver of defenses
146 S.W.3d 170, 182 (Tex.2004)).                                   does not relieve a plaintiff of the burden of proving that the
                                                                   defendant owed a duty.


                              III.                                 1. Employers and Other Landowners




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 103                8
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

 [2] We first clarify and confirm that, generally, 8 an            412; Goss, 262 S.W.3d at 794; Gen. Elec. Co. v. Moritz,
employer has the same *202 premises-liability duty to its          257 S.W.3d 211, 216 (Tex.2008); Cent. Ready Mix Concrete
employees as other landowners have to invitees on their            Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); Shell Oil
premises. An invitee is “one who enters the property of            Co. v. Khan, 138 S.W.3d 288, 295 (Tex.2004). The Court
another ‘with the owner's knowledge and for the mutual             has struggled to characterize the rule, however, in cases in
benefit of both.’ ” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d        which the landowner's provision of a warning or the invitee's
1, 3 (Tex.1996) (quoting Rosas v. Buddies Food Store, 518          knowledge of the risk was not *203 sufficient to make the
S.W.2d 534, 536 (Tex.1975)). Employees working at their            premises reasonably safe. Today we clarify that these cases
employers' premises fit this description, and this Court has       present discrete exceptions to the general rule.
stated that an employer's duty to make its premises reasonably
safe for employees is “in all material respects ... identical”
to a landowner's duty to make its premises reasonably                                 a. The General Rule
safe for invitees. Robinson, 280 S.W.2d at 240; see also
Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex.1963)             [5] [6] Applying the general rule, the Court has repeatedly
(holding that employee was invitee, rather than licensee,          described a landowner's duty as a duty to make safe or warn
while working at his employer's premises). As mentioned, the       against any concealed, unreasonably dangerous conditions
Court abolished the no-duty rule only for employer-employee        of which the landowner is, or reasonably should be, aware
cases in Robinson, 280 S.W.2d at 240, but later did the            but the invitee is not. See, e.g., Escoto, 288 S.W.3d at 412;
same for all other premises-liability cases in Parker, 565         Goss, 262 S.W.3d at 794; Moritz, 257 S.W.3d at 216; Islas,
S.W.2d at 512. Other than that brief rift, the Court has treated   228 S.W.3d at 651; Khan, 138 S.W.3d at 295. Ordinarily,
employers as having the same premises-liability duties as all      the landowner need not do both, and can satisfy its duty
other landowners, and we confirm that approach today.              by providing an adequate warning even if the unreasonably
                                                                   dangerous condition remains. See Williams, 940 S.W.2d at
 [3] In answering the Fifth Circuit's certified question, we       584 (holding that landowner “had a duty to warn or make
thus consider the premises-liability duties of landowners to       safe, but not both”); see also TXI Operations, L.P. v. Perry,
invitees generally. The certified question's reference to “a       278 S.W.3d 763, 765 (Tex.2009) (observing that defendant
nonsubcribing employer” and to the TWCA's waiver of a              could have satisfied its duty by either repairing pothole
nonsubscriber's defenses, therefore, has no bearing on our         or providing adequate warning sign). This general rule is
analysis of an employer's duty. While an employer's liability      consistent with the reasons for imposing a duty on landowners
may differ from that of other landowners due to the statutory      in the first place. The landowner is typically in a better
waiver of its defenses, see Kroger Co. v. Keng, 23 S.W.3d          position than the invitee to be aware of hidden hazards on
347, 352 (Tex.2000), its premises-liability duty is the same as    the premises, so the law mandates that the landowner take
that owed by landowners to invitees generally.                     precautions to protect invitees against such hazards, to the
                                                                   extent the landowner is or should be aware of them. See
                                                                   Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex.1973)
2. The Duty to Make Safe or Warn                                   (discussing landowner's “superior position to know of or
 [4] At different times, this Court has described a landowner's    discover hidden dangerous conditions on his premises”);
premises-liability duty to invitees as a duty to make              see also RESTATEMENT (THIRD) OF TORTS: LIAB.
reasonably safe, 9 a duty to warn, 10 or a duty to make safe       FOR PHYSICAL & EMOTIONAL HARM § 51 cmt. t
or warn. 11 While potentially confusing, these descriptions        (2012) (addressing landowner's “superior knowledge of the
are not at odds with each other. A landowner has a duty            dangerous condition”).
to exercise reasonable care to make the premises safe for
invitees. Obviously, the landowner can satisfy this duty by        When the condition is open and obvious or known to
eliminating the dangerous condition or by mitigating the           the invitee, however, the landowner is not in a better
condition so that it is no longer unreasonably dangerous.          position to discover it. When invitees are aware of dangerous
See State v. Williams, 940 S.W.2d 583, 584 (Tex.1996). But         premises conditions—whether because the danger is obvious
the Court has repeatedly recognized that, in most cases, the       or because the landowner provided an adequate warning
landowner can also satisfy its duty by providing an adequate       —the condition will, in most cases, no longer pose an
warning of the danger. See, e.g., Escoto, 288 S.W.3d at            unreasonable risk because the law presumes that invitees



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 104               9
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

will take reasonable measures to protect themselves against       We use the qualifiers “generally,” “ordinarily,” and “in most
known risks, which may include a decision not to accept           cases” while discussing the general rule because the Court
the invitation to enter onto the landowner's premises.            has struggled at times with cases in which it concluded that
See, e.g., RESTATEMENT (THIRD) OF TORTS: LIAB.                    the provision of a warning or the obvious nature of the
FOR PHYSICAL & EMOTIONAL HARM § 51 cmt.                           danger was not sufficient to make the premises reasonably
a (2012) (observing that reasonable care “only requires           safe as a matter of law. See, e.g., Del Lago, 307 S.W.3d at
attending to the foreseeable risks in light of the then-extant    774 (stating that “[i]n some circumstances, no warning can
environment, including foreseeable precautions by others”);       suffice as reasonably prudent action to reduce or remove an
RESTATEMENT (SECOND) OF TORTSS § 343 cmt. b                       unreasonable risk”). Thus, in some cases, the Court held that
(1965) (observing that landowner must “give such warning          an otherwise “adequate” warning or an invitee's knowledge
that the [invitee] may decide intelligently whether or not        of the danger was not sufficient to discharge the landowner's
to accept the invitation, or may protect himself against the      duty. See Parker, 565 S.W.2d at 512; Robinson, 280 S.W.2d
danger if he does accept it”). This is why the Court has          at 240. But in most cases, the Court has continued to apply the
typically characterized the landowner's duty as a duty to make    general rule. See Goss, 262 S.W.3d at 795; Skiles, 221 S.W.3d
safe or warn of unreasonably dangerous conditions that are        at 568–69; Elwood, 197 S.W.3d at 795. This has resulted in
not open and obvious or otherwise known to the invitee. See,      the “arguable conflict in Texas law” that led the Fifth Circuit
e.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794;         to certify its question to us in this case. 746 F.3d at 204.
Moritz, 257 S.W.3d at 216; Islas, 228 S.W.3d at 651; Khan,
138 S.W.3d at 295.                                             Today we reaffirm the general rule while clarifying and
                                                               confirming the existence of two exceptions that the Court has
 [7] [8] [9] This general rule is also consistent with the recognized when the landowner's provision of an otherwise
Court's recognition that a landowner's duty to invitees is     adequate warning is legally insufficient to make the premises
not absolute. A landowner “is not an insurer of [a] visitor's  reasonably safe. The first exception may arise when a
safety.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,     dangerous condition results from the foreseeable criminal
769 (Tex.2010) (quoting RESTATEMENT (SECOND) OF                activity of third parties. We will refer to this as the criminal-
TORTS § 344 cmt. f). Instead, a landowner's premises-          activity exception. The second exception may arise when
liability duties, like its negligence duties, are limited to a the invitee necessarily must use the unreasonably dangerous
duty to exercise ordinary, reasonable care. *204 Elwood,       premises, and despite the invitee's awareness and appreciation
197 S.W.3d at 794 (“An employer has a duty to use ordinary     of the dangers, the invitee is incapable of taking precautions
care in providing a safe workplace.... However, an employer    that will adequately reduce the risk. We will refer to this as the
is not an insurer of its employees' safety.”).     12
                                                      Thus, a  necessary-use exception. In cases involving these exceptions,
defendant has “no duty” to take safety measures beyond those   we have held that the obviousness of the danger and the
that an ordinary, reasonable landowner would take. What        invitee's appreciation of it may be relevant to a landowner's
a reasonable landowner would do is often a jury question,      defense based on the invitee's proportionate responsibility,
but sometimes it is not. The Court has recognized that, in     but they do not relieve the landowner of its duty to make the
most circumstances, a landowner who provides an adequate       premises reasonably safe.
warning acts reasonably as a matter of law, and since there
is no need to warn against obvious or known dangers, a
landowner generally has no duty to warn of hazards that are                (1) The Criminal–Activity Exception
open and obvious or known to the invitee. See, e.g., Goss, 262
S.W.3d at 795; Moritz, 257 S.W.3d at 218; Islas, 228 S.W.3d     [10] The seminal case in which this Court defined a
at 651; Skiles, 221 S.W.3d at 568–69; Elwood, 197 S.W.3d at    landowner's duty with regard to protecting invitees against
795; Khan, 138 S.W.3d at 295; Coastal Marine Serv. of Tex.,    third *205 parties' criminal activities is Timberwalk
Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex.1999).              Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749
                                                               (Tex.1998). In that case, a tenant sued her apartment complex
                                                               after she was sexually assaulted in her apartment, asserting
                                                               that the complex's inadequate security was a proximate cause
              b. Exceptions to the General Rule
                                                               of her assault. Id. at 751. After holding that the claims
                                                               sounded in premises liability rather than negligent activity, id.



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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

at 753, the Court described the contours of the specific duty     stated that the resort's position would “revive the doctrine
a landowner owes with respect to third-party criminal acts:       of voluntary assumption of the risk as a complete bar to
                                                                  recovery” and would “revive the no-duty rule” by holding
  As a rule, “a person has no legal duty to protect another       “as a matter of law that an invitee's decision not *206
  from the criminal acts of a third person.” An exception         to remove himself from a known and dangerous premises
  is that “[o]ne who controls ... premises does have a duty       condition bars any recovery against the landowner.” Id. at
  to use ordinary care to protect invitees from criminal          772–73. This language at least arguably indicates that the
  acts of third parties if he knows or has reason to know         Court was applying a general rule when it refused to hold
  of an unreasonable and foreseeable risk of harm to the          that the plaintiff's knowledge of the risks eliminated the
  invitee.” ...                                                   landowner's duty to make the premises reasonably safe. But
                                                                  the Court expressly clarified that it was not announcing a
     ....
                                                                  general rule. Id. at 770 (“We do not announce a general rule
  ... A duty exists only when the risk of criminal conduct is     today.”). Instead, the Court made it clear that its decision was
  so great that it is both unreasonable and foreseeable.          based on the fact that the plaintiff's awareness of the risk was
                                                                  not sufficient in that case to enable him to avoid the harm.
Id. at 756 (quoting Walker v. Harris, 924 S.W.2d 375,             Specifically, in response to the dissent's reliance on section
377 (Tex.1996)). In addressing this duty, the Court did           343A(1) of the Restatement (Second) of Torts, which posits
not consider or mention the obviousness or the plaintiff's        that a landowner cannot be liable for harm resulting from
awareness of the alleged risk, or whether the landowner could     “known or obvious” conditions, the Court pointed out section
fulfill its duty by providing an adequate warning. See id. Nor    343A concludes by saying “unless the [landowner] should
did the Court do so when describing the Timberwalk duty in        anticipate the harm despite such knowledge or obviousness.”
cases that followed it. See, e.g., W. Invs., Inc. v. Urena, 162   Id. at 774. Finding that this language “anticipate[s] today's
S.W.3d 547 (Tex.2005); 13 Mellon Mortg. Co. v. Holder, 5          uncommon facts,” the Court concluded that the resort “may
                                                                  still be liable” because it “had reason to expect harm
S.W.3d 654 (Tex.1999). 14
                                                                  notwithstanding [the plaintiff's] awareness of the risk.” Id.
                                                                  The Court thus expressly confirmed that its “narrow and fact-
More recently, when the plaintiff in Del Lago argued that
                                                                  specific” holding applied only when the landowner “should
unreasonably dangerous conditions resulting from inadequate
                                                                  anticipate the harm despite such knowledge or obviousness,”
security at a bar proximately caused his injuries when a fight
                                                                  and that it was “not hold[ing] today that a landowner can
broke out, the Court again applied the Timberwalk duty:
                                                                  never avoid liability as a matter of law in cases of open and
  Generally, a premises owner has no duty to protect invitees     obvious dangers.” Id.
  from criminal acts by third parties. We have recognized an
  exception when the owner knows or has reason to know             [11] Clarifying the arguable conflict in the Court's
  of a risk of harm to invitees that is unreasonable and          precedents, we hold that Del Lago represents an exception
  foreseeable....                                                 to the general rule that a landowner has no duty to warn an
                                                                  invitee of unreasonably dangerous conditions that are obvious
     ....                                                         or known to the invitee, which exception applies in cases
                                                                  involving dangers resulting from a third party's criminal
  ... We hold that Del Lago had a duty to protect Smith
                                                                  conduct in which the landowner should have anticipated
  because Del Lago had actual and direct knowledge that
                                                                  that the harm would occur despite the invitee's knowledge
  a violent brawl was imminent between drunk, belligerent
                                                                  of the risks. In such cases, the invitee's appreciation of the
  patrons and had ample time and means to defuse the
                                                                  danger remains relevant to the landowner's proportionate-
  situation.
                                                                  responsibility defenses, see Del Lago, 307 S.W.3d at 772–
Del Lago, 307 S.W.3d at 767–69.                                   73, but it does not relieve the landowner of its duty to
                                                                  take reasonable steps to make the premises safe. See Eagle
The Court rejected the resort owner's argument that it had        Trucking Co. v. Tex. Bitulithic Co., 612 S.W.2d 503, 507
no duty to protect the plaintiff from the risks because the       (Tex.1981).
danger was as obvious and known to the plaintiff as it
was to the resort owner. Id. at 772. In doing so, the Court



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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

                                                                    logic, has already undermined the no-duty rule” due to “[t]he
                                                                    inextricable mixing” of a defendant's duty and “a plaintiff's
             (2) The Necessary–Use Exception
                                                                    burden to negate his own knowledge and appreciation” with
A second exception to the general rule arises from the Court's      “voluntary assumption of risk”; (3) “[t]he legislature by
decision in Parker, which predates the Court's later decisions      its adoption in 1973 of the comparative negligence statute
restating and applying the general rule. In Parker, the plaintiff   evidenced a clear policy purpose to apportion negligence
fell while descending an improperly lighted staircase in a          according to the fault of the actors”; and (4) “[t]he no-duty
common area that she had to use to exit her sister's apartment.     doctrine is so elusive that precedent is non-predictive and
565 S.W.2d at 513. Because the plaintiff was aware of the           unhelpful.” Id. at 517–18. The Court thus concluded that “[a]
darkness and the dangers it presented, she took measures to         plaintiff's knowledge, whether it is derived from a warning or
mitigate the risks by having her sister hold a flashlight to        from the facts, even if the facts display the danger openly and
illuminate the stairs and by taking careful steps while holding     obviously, is a matter that bears upon his own negligence; it
on to the handrail. Id. at 514. Nevertheless, because the stairs    should not affect the defendant's duty.” Id. at 521.
included narrow, unevenly distributed steps and turned such
that the flashlight could not illuminate all the way down, the       [12] [13] As we have mentioned, despite this rather clear
measures were insufficient and the plaintiff fell. Id. The Court    language, the Court has since repeatedly restated and applied
adopted in that case the specific and narrow duty recognized        the general no-duty rule in the landowner-invitee context,
in sections 360 and 361 of the Restatement (Second) of Torts.       without overruling the decision in Parker. See, e.g., Escoto,
Id. at 515–16. Under section 361,                                   288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Moritz, 257
                                                                    S.W.3d at 216; Islas, 228 S.W.3d at 651; Khan, 138 S.W.3d
             [a] possessor of land who leases a part                at 295. To the extent that these decisions conflict with Parker,
             thereof and retains in his own control                 we think the better approach is to follow our more recent
             any other part which is necessary to                   precedent and recognize the Parker rule as an exception that
             the safe use of the leased part, is                    applies when the facts demonstrate that (1) it was necessary
             subject to liability to his lessee and                 that the invitee use the unreasonably dangerous premises and
             others lawfully upon the land with the                 (2) the landowner should have anticipated that the invitee was
             consent of the lessee or a sublessee for               unable to avoid the unreasonable risks despite the invitee's
             physical harm caused by a dangerous                    awareness of them. As the Court observed in Parker:
             condition upon *207 that part of the
             land retained in the lessor's control, if                          One's conduct after he is possessed
             the lessor by the exercise of reasonable                           of full knowledge, under the
             care (a) could have discovered the                                 circumstances may be justified or
             condition and the risk involved, and                               deemed negligent depending upon
             (b) could have made the condition                                  such things as the plaintiff's status, the
             safe.                                                              nature of the structure, the urgency
                                                                                or lack of it for attempting to reach
Id. at 515 (quoting RESTATEMENT (SECOND) OF TORTS                               a destination, the availability of an
§ 361).                                                                         alternative, one's familiarity or lack
                                                                                of it with the way, the degree
In addition, however, the Court abolished the “no-duty rule”                    and seriousness of the danger, the
in all landowner-invitee cases, using language that is difficult                availability of aid from others, the
to construe as anything other than the adoption of a new                        nature and degree of the darkness,
general rule. Id. at 517 (“We now expressly abolish the so-                     the kind and extent of a warning,
called no-duty concept in this case and ... ‘henceforth in                      and the precautions taken under the
the trial of all actions based on negligence....’ ”) (quoting                   circumstances by a plaintiff in walking
Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex.1975)).                      down the passageway.
The Court enumerated its reasons for doing so, including
its observations that (1) the no-duty rule “has contributed         565 S.W.2d at 520. Although the Parker Court concluded that
confusion which has defied the efforts of our best scholars         these “are matters which bear upon ‘the reasonableness of an
at explanation and application”; (2) the Court, “based on           actor's conduct in confronting a risk ... under principles of


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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

contributory negligence,’ ” id. (quoting Farley, 529 S.W.2d
at 758), the Court's subsequent decisions have repeatedly
                                                                                    a. Parker and Del Lago
recognized that, despite Parker, a landowner generally has
no duty to protect or warn an invitee against unreasonable         The Court's abolition of the no-duty rule in Parker was
dangers that are open and obvious or otherwise known to the        aimed at correcting a common misapplication of the burdens
invitee.                                                           of proof in premises-liability cases. Some confusion had
                                                                   arisen because, while plaintiffs bear the burden of proving
 [14]      [15]       *208 Resolving the Court's “arguably the existence of a duty, certain “no duty” arguments bleed
conflicting ... precedent,” 746 F.3d at 197, we hold that          into defensive issues—such as assumption of the risk and
Parker represents a second exception to the general rule.          contributory negligence—on which defendants bear the
Although, as the Parker Court noted, “not every ‘open and          burden of proof. See Moritz, 257 S.W.3d at 216–18; Dixon,
obvious' condition of danger ... precludes recovery,” 565          682 S.W.2d at 533–34; McKee v. Patterson, 153 Tex. 517,
S.W.2d at 520, the Court's more recent decisions confirm that      271 S.W.2d 391, 393 (1954), abrogated by Parker, 565
some do, as a matter of law. Although “[d]anger is relative,       S.W.2d at 516–19. It was this confusion that led the Court to
and a person of ordinary care may incur some hazards,” id.         adopt the no-duty rule:
the Court's more-recently reaffirmed general rule confirms
that landowners have no duty to protect or warn such persons                   There are two legal theories, wholly
when they are aware of the risks and could have avoided                        aside from the plaintiff's own
them. We thus reaffirm the general rule, but retain Parker                     negligence, for denying liability in a
as an example of an exception that recognizes a landowner's                    suit against an owner or occupier of
duty to make its premises safe when, despite an awareness                      land brought by an invitee for injuries
of the risks, it is necessary that the invitee use the dangerous               growing out of open and obvious
premises and the landowner should have anticipated that the                    dangers thereon. One rests on the
invitee is unable to take measures to avoid the risk. When this                judicial concept that there is no breach
necessary-use exception applies, like the criminal-activity                    of any duty the landowner owes to
exception, the plaintiff's awareness of the risk does not relieve              his invitees. The other arises out of
the landowner's duty to make the premises safe, but it remains                 the doctrine of volenti non fit injuria
relevant to the issue of proportionate responsibility unless that              —voluntary encountering of risk—
defense is legally unavailable. Id. at 520–21.                                 which is regarded as a defense to all
                                                                               negligence actions.... The failure of
                                                                               counsel to segregate and separately
3. Robinson and the TWCA's waiver of defenses                                  preserve all of these questions in
This is not the first time we have attempted to clarify and                    pleadings in the trial courts and in
resolve the apparent conflict between Robinson, Parker, and                    briefs in the appellate courts, thereby
our more recent decisions upholding the general rule. Here,                    offering the appellate *209 courts
Austin argues that it cannot be that Kroger owes him “no                       no alternative except to decide the
duty” with respect to the slip-and-fall risk because this Court                cases before them on the questions
has abolished the “no-duty rule.” See Del Lago, 307 S.W.3d                     presented, and the tendency of the
at 772; Parker, 565 S.W.2d at 514–15; Robinson, 280 S.W.2d                     appellate courts to group them in
at 241–42. We previously rejected this argument, however,                      analyzing the evidence, or to seek the
and attempted to clarify our precedent on multiple occasions.                  most obvious and simplest solution,
See, e.g., Moritz, 257 S.W.3d at 216–18; Dixon v. Van Waters                   has led to much confusion in the
& Rogers, 682 S.W.2d 533, 533–34 (Tex.1984). We attempt                        decided cases. In greatly similar fact
to provide further clarification here, especially as it relates to             situations some are decided on the
Robinson and the TWCA's defense waivers, and we do so by                       basis of no breach of duty by the
beginning with a more thorough discussion of Parker, Del                       defendant, some on the basis of
Lago, and the “no-duty rule.”                                                  voluntary encountering of risk by
                                                                               the plaintiff, some on the basis of
                                                                               the contributory negligence of the



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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

             plaintiff, and some on the basis of
             two or more of these factors without                  Moritz, 257 S.W.3d at 216 (quoting Dixon, 682 S.W.2d at
             distinction between them. This has                    533–34). Whether “a duty exists is a question of law for
             led to what appears to be conflicting                 the court,” and if no duty exists, “a jury cannot impose a
             results.                                              duty anyway on the theory that Parker abolished all no-duty
                                                                   defenses.” Id. at 217. 15
McKee, 271 S.W.2d at 393.
                                                                   [17] Although the common law affirmative defenses of
Further contributing to the confusion was the common
                                                                   assumption of the risk 16 and contributory negligence no
law's treatment of assumption of the risk and contributory
                                                                   longer *210 exist under Texas law, the underlying concepts
negligence as absolute bars to recovery. See id.; Dugger v.
                                                                   remain relevant under Texas's proportionate-responsibility
Arredondo, 408 S.W.3d 825, 830 (Tex.2013). Whether the
                                                                   statute. See Del Lago, 307 S.W.3d at 772 (discussing
obviousness of a risk meant that the defendant owed no duty
                                                                   replacement of contributory negligence by proportionate-
or that the plaintiff had assumed the risk or that the plaintiff
bore some responsibility for his injury, the result was the        responsibility statute). 17 The same facts that tended to prove
same: the plaintiff could not recover at all. This made it         assumption of the risk or contributory negligence may now be
difficult for Texas courts to distinguish between these three      used to diminish a plaintiff's recovery by demonstrating that
concepts, see Parker, 565 S.W.2d at 516, and resulted in an        the plaintiff bore some portion of the responsibility for his
“oddity that had uniquely developed in Texas,” the placing         own injuries, or even to preclude the plaintiff from recovering
of an absolute burden on the plaintiff “to negate his own          at all by demonstrating that the plaintiff bore more than 50%
knowledge and his own appreciation of a danger” as part of         of the responsibility for his own injuries. See TEX. CIV.
his case-in-chief. Moritz, 257 S.W.3d at 216 (quoting Dixon,       PRAC. & REM. CODEE §§ 33.001, .003. In other words,
682 S.W.2d at 533).                                                although these are no longer affirmative defenses that act as
                                                                   an absolute bar to recovery, they remain defensive issues on
 [16] It is this “oddity” that the Court has referred to as        which defendants, not plaintiffs, bear the burden of proof.
the no-duty rule—a rule that required plaintiffs to negate
their own knowledge of the risk in all premises-liability
cases, regardless of whether that fact was relevant to the                                     b. Robinson
existence of a duty or to defenses like assumption of the risk
and contributory negligence. See id.; see also Parker, 565         Even before the Court abolished the no-duty rule in Parker,
S.W.2d at 517. When the Court abrogated the no-duty rule, it       the Court rejected it in nonsubscriber employment cases in
ensured that the burden of proving these affirmative defenses      Robinson, 280 S.W.2d at 239–40. But Robinson's rejection
remained on defendants, but it did not relieve plaintiffs of the   of the no-duty rule did more than Parker's because the
burden to prove the existence of a duty as an element of the       TWCA prohibits nonsubscribing employers from relying
plaintiff's claim. See Moritz, 257 S.W.3d at 216; Dixon, 682       on defenses like assumption of the risk, contributory
S.W.2d at 533; Parker, 565 S.W.2d at 516–17. As the Court          negligence, or proportionate responsibility. TEX. LAB.
has twice clarified:                                               CODE § 406.033(a). Thus, while the abolition of the no-
                                                                   duty rule in other tort actions meant only that the burden
             The rule [in Parker] that the plaintiff               of proving these defensive issues shifted back to defendants,
             does not have the burden to obtain                    the abolition of the no-duty rule in nonsubscribing-employer
             findings that disprove his own fault                  cases meant that, once the plaintiff proved a duty, the
             does not, however, mean that a                        defendant could not rely on the plaintiff's awareness of the
             plaintiff is excused from proving the                 danger at all. See Robinson, 280 S.W.2d at 239–40.
             defendant had a duty and breached it.
             A plaintiff does not have the burden                   [18] Just as Parker's abolition of the no-duty rule should not
             to prove and obtain findings that he                  impact typical premises-liability cases where the landowner's
             lacked knowledge and appreciation of                  only duty is to warn of concealed dangers, Robinson's
             a danger; he must, however, prove the                 abolition of the no-duty rule should not impact typical
             defendant had a duty and breached it.                 nonsubscribing-employer cases where the employer owes no
                                                                   duty to warn or train employees with respect to dangers


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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

that are commonly known or already appreciated by the               [19] As discussed above, the TWCA prohibits
employee. See Escoto, 288 S.W.3d at 413; Goss, 262 S.W.3d          nonsubscribing employers from raising the defenses of
at 794– 95; Skiles, 221 S.W.3d at 568; Elwood, 197 S.W.3d          contributory negligence and assumption of the risk, which
at 794–95. Instead, the Court's abolition of the no-duty rule      are now subsumed under the proportionate-responsibility
should play a role only when an exception to the general rule      statute. TEX. LAB. CODE § 406.033(a)(1), (2); Keng, 23
applies—that is, when the nonsubscribing employer owes a           S.W.3d at 349–52. Although an employee's awareness of
duty despite the obviousness or employee's appreciation of a       an unreasonable risk may be relevant to such defenses, the
danger because, despite the awareness of the danger, it is         Court's general rule that we confirm today may permit an
necessary that the employee use the dangerous premises and         employer to avoid liability despite the TWCA's waiver of
the employer should anticipate that the employee is unable to      those defenses. It does so, however, not by undermining the
take measures to avoid the risk. In such cases, the employer       Legislature's prerogative to determine when defenses may or
cannot rely on the fact that the risk was obvious and known to     may not apply, but by fulfilling this Court's role to determine
the employee to argue that the employee bears some portion         when a party owes a legal duty to begin with. See Moritz, 257
of the responsibility for his own injuries, because the TWCA       S.W.3d at 217 (“Whether ... a duty exists is a question of law
waives those defenses. Compare Del Lago, 307 S.W.3d at             for the court; it is not for the jury to decide under comparative
772–73; Parker, 565 S.W.2d at 520, with TEX. LAB. CODE             negligence or anything else.”).
§ 406.033(a); Keng, 23 S.W.3d at 352.
                                                                    [20] [21] Moreover, the general rule does not render the
 *211 In rejecting the no-duty rule for nonsubscribing-            statutory waiver ineffective for at least two reasons. First,
employer cases, the Robinson Court at least arguably rejected      landowners may assert an invitee's negligence based on
the principle that an employer does not have a duty to warn        conduct other than the invitee's awareness of the risk, and the
employees of open and obvious hazards. 280 S.W.2d at               TWCA's waiver prohibits a nonsubscribing employer from
239–40. The Court observed that in the landowner-invitee           relying on any such conduct to do so. See Keng, 23 S.W.3d
field of law, “[t]he rule is well settled that the owner of        at 351–52. Second, in cases in which the criminal-activity or
premises is not required to keep them safe for invitees in         necessary-use exceptions apply, and thus the employer has
so far as open, obvious and known defects or conditions            a duty to the employee despite the employee's awareness of
are concerned,” but declined to apply that concept to suits        the risk, the TWCA will prevent the employer from relying
between an employer and employee. Id. at 240. The Court            on the employee's awareness of the risk as a defense to the
then rejected the employer's argument in that case that it         employee's claims. In Parker and Del Lago, the defendants
had no duty to protect the employee from or warn him of            were not the plaintiffs' employers, and thus they were able to
a large pool of oil on the floor, even though the record           rely on the plaintiffs' appreciation of the dangers to argue that
established that the spill was open and obvious, that the          the plaintiff bore some portion of the responsibility for his or
employee had seen and failed to report the spill to anyone else,   her injuries. Parker, 565 S.W.2d at 520–21; Del Lago, 307
and that the employee recognized that the oil made the floor       S.W.3d at 773–74. But if the defendant in a case that meets the
slippery. Id. at 239–40. In the sixty years since Robinson,        criminal-activity or necessary-use exception is the plaintiff's
however, this Court has never held that an employer has a          nonsubscribing employer, 20 the TWCA would prohibit that
duty to warn employees of open and obvious dangers or              defense. See Keng, 23 S.W.3d at 351–52.
relied on Robinson for that proposition. 18 Instead, the Court
has repeatedly held that an employer does not have a duty          Although the TWCA's waiver of defenses is intended
to warn employees of dangers that are open and obvious or          to encourage employers to subscribe to the workers'
already known to the employee. 19 To resolve this apparent         compensation system, the TWCA does not create an
conflict, we expressly reaffirm the Court's more recent *212       “especially punitive litigation regime for non-subscribing
holdings, and we overrule Robinson to the extent it conflicts      employers.” Tex. W. Oaks Hosp., LP v. Williams, 371
with those holdings and with our recognition of the criminal-      S.W.3d 171, 192 (Tex.2012). Absent intentional misconduct,
activity and necessary-use exceptions in this case.                employees still must prove all the elements of a common
                                                                   law negligence claim to prevail against nonsubscribing
                                                                   employers. See TEX. LAB. CODE § 406.033(d); Tex. W.
                                                                   Oaks, 371 S.W.3d at 187. “In other words,” as the Fifth
                        c. The TWCA                                Circuit observed in this case, TWCA “section 406.033(a)(1)–



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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

(3) may limit an employer's defenses, but it does not eliminate   possessor should anticipate the harm despite such knowledge
an employee's *213 burden to establish his common law             or obviousness,’ ” and “[t]hat caveat seems to capture today's
claim.” 746 F.3d at 198 (citing Am. Int'l Specialty Lines Ins.    narrow and fact-specific holding.” Del Lago, 307 S.W.3d at
Co. v. Rentech Steel, L.L.C., 620 F.3d 558, 565 (5th Cir.2010);   774 (quoting RESTATEMENT (SECOND) OF TORTS §
Tex. W. Oaks, 371 S.W.3d at 187). This burden, of course,         343A(1)).
includes the burden to prove that a defendant had a duty
to the plaintiff, which is the issue that our general rule and    Austin contends that the same reasoning should apply here,
exceptions address.                                               and that it would apply regardless of whether the Court
                                                                  employed an objective or subjective standard for evaluating
                                                                  the reasonableness of his conduct, because “it was objectively
B. No new exception                                               reasonable for an employee in his situation to attempt
 [22] Having clarified the general rule that an employer or       to perform his assigned task, notwithstanding the obvious
landowner owes no duty to protect or warn an employee or          dangers posed by th[e] condition” of the floor. Essentially,
invitee against unreasonably dangerous premises conditions        Austin argues that it was reasonable for him to undertake the
that are open and obvious or otherwise known to the               risk of slipping in the oily liquid because, although he was
employee or invitee, and the criminal-activity and necessary-     aware of the risk, he undertook it at the instruction of his
use exceptions that preserve that duty under limited              employer rather than by purely voluntary choice. While this
circumstances, we now address Austin's argument that we           argument has some appeal, we are not persuaded for several
should recognize a new exception in this case. Specifically,      reasons.
Austin asserts that we should recognize a distinct duty in
cases where an employee is injured while performing a task        First, Texas law treats Austin's encounter with the spill as
that the employer specifically assigned to the employee. We       voluntary in nature, even though it was part of his work
decline to do so.                                                 duties. See McKee, 271 S.W.2d at 396 (exploring historical
                                                                  underpinning of this rule). If we created an exception to
Both Parker and Del Lago indicated that there may be              the general rule that employers owe no premises-liability
circumstances in which invitees may reasonably be expected        duty with respect to open and obvious conditions unless
to choose to encounter a dangerous condition despite their        the employee encountered the condition as part of his work
knowledge and appreciation of the risk. In Parker, the Court      duties, the exception would swallow the rule. Moreover, the
quoted a comment from the Second Restatement stating that         employees in Goss, Skiles, and Elwood were engaged in their
a landlord's duty with respect to common areas                    work duties at the time of their injuries. *214 Austin argues
                                                                  that those cases are distinguishable because the behavior that
            is not always satisfied by warning
                                                                  led to the employees' injuries was risky and unnecessary
            the lessee or others of the dangerous
                                                                  to performance of the assigned task. See Goss, 262 S.W.3d
            condition, and ... knowledge of such
                                                                  at 794 (hitting shin on three-foot-tall cart while walking
            persons of the danger will not always
                                                                  in warehouse); Skiles, 221 S.W.3d at 567 (climbing over
            prevent their recovery. Where, for
                                                                  nonfunctioning lift gate); Elwood, 197 S.W.3d at 794 (putting
            example, the entrance to an apartment
                                                                  hand in car doorjamb while loading groceries). But we see
            house is dangerously defective, and
                                                                  nothing exceedingly risky about walking in the vicinity of a
            there is no other available entrance, the
            third person may be expected to use it                grocery cooler. See Goss, 262 S.W.3d at 794. 21 And it is not
            notwithstanding any warning, or even                  clear that the employee in Skiles could have accomplished his
            his own knowledge of the danger.                      assigned task of unloading the truck without climbing over
                                                                  the broken lift gate. 221 S.W.3d at 567. He could have simply
565 S.W.2d at 515 (quoting RESTATEMENT (SECOND)                   declined to unload the truck at that time, but an employee
OF TORTS § 360 cmt. c). This example encapsulated the             always has the option to decline to perform an assigned task
facts of Parker, where the invitee had no other means to exit     and incur the consequences of that decision. See McKee, 271
the second-story apartment except by the dangerous staircase.     S.W.2d at 396.
See id. at 514. And in Del Lago, the Court stated that section
343A(1) of the Second Restatement “bars liability when an         [23] Second, Austin's proposed exception is not compatible
invitee is aware of the dangerous condition, ... ‘unless the      with our precedent that “when an employee's injury results



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 111 16
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

from performing the same character of work that employees          the district court's summary judgment for Kroger on Austin's
in that position have always done, an employer is not liable       negligent-activities claim, agreeing with the district court's
if there is no evidence that the work is unusually precarious.”    holding that Austin's injury arose from a premises condition
Elwood, 197 S.W.3d at 795 (citing Werner v. Colwell, 909           rather than any contemporaneous activity by Kroger, and
S.W.2d 866, 869 (Tex.1995), which cites Great Atl. & Pac.          that Austin “cannot pursue both a negligent activity and
Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 251 (1943)). It      a premises defect theory of recovery based on the same
is undisputed that mopping up spills is the same character of      injury.” 746 F.3d at 197. The Fifth Circuit remanded Austin's
work that Austin—as the store's self-described “floor clean-       necessary-instrumentalities claim, however, because the
up person”—and other employees in his position have always         district court had “failed to consider whether ... [that theory]
done.                                                              is sufficient to support a stand-alone ordinary negligence
                                                                   claim.” Id.
Third, the most efficient way for employers like Kroger to
eliminate a dangerous condition like the spill in this case is     The Fifth Circuit's certified question only addresses Austin's
to have a trained employee clean it, and it is the public policy   premises-liability claim, and for that reason some Justices
in Texas to encourage them to do so. See, e.g., Tex. Trunk         would not reach Austin's necessary-instrumentalities claim.
Ry. Co. v. Ayres, 83 Tex. 268, 18 S.W. 684, 685–86 (1892).         But Kroger asks us to reach the instrumentalities claim,
For example, because public policy encourages landowners           asserting that the claim fails as a matter of law for several
to remedy potentially dangerous conditions on their property,      reasons. We decline to decide the merits of Austin's
we have prohibited plaintiffs from relying on evidence that a      instrumentalities claim, but in the interest of judicial
defendant made repairs or otherwise remediated a dangerous         efficiency we will address one of Kroger's arguments, which
condition on its property after the plaintiff's injury as proof    touches on the relationship between the instrumentalities
of the defendant's negligence, observing that a defendant          claim and the premises-liability claim. Specifically, Kroger
would be discouraged from making repairs “if it must do so         argues that the instrumentalities claim must fail for the
at its peril.” Id. at 686 (discussing predecessor to TEX. R.       same reason the negligent-activities claim must fail: because
EVID. 407(a)). Imposing liability on employers for injuries to     a condition of the premises, rather than any of Kroger's
employees caused by open and obvious dangers knowingly             contemporaneous activities, caused Austin's fall, his claim
encountered by the employee in the ordinary course of              sounds exclusively in premises liability, and he can only
employment would discourage employers from retaining               recover on that claim or not at all. We do not agree.
employees to perform the kinds of repair and janitorial work
necessary to maintain their premises in a reasonably safe           [25] In a typical premises-liability case, the landowner
condition. Because landowners generally are not liable to          owes the invitee two duties: a duty to keep the premises
non-employees for open and obvious premises conditions,            reasonably safe and a duty not to injure the invitee
see Moritz, 257 S.W.3d at 215, making landowners liable            through contemporaneous negligent activity. See, e.g.,
to employees for such conditions directly disincentivizes          State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006)
employers from hiring employees to remedy such conditions.         (distinguishing a negligent-activity claim, which “result[s]
We thus decline to recognize the new exception that Austin         from a contemporaneous activity,” from a premises-defect
proposes.                                                          claim, which “is based on the property itself being unsafe”);
                                                                   Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992)
                                                                   (holding that trial court did not err in submitting only
                                                                   premises-liability claim when injury arose from pool of
                              IV.
                                                                   water that employee had created at least thirty minutes
                                                                   before accident). Thus, when a claim does not result from
       Austin's Necessary–Instrumentalities Claim                  contemporaneous activity, the invitee has no negligent-
                                                                   activity claim, and his claim sounds exclusively in premises-
 [24] As noted above, in addition to his premises-liability
                                                                   liability. See Shumake, 199 S.W.3d at 284; Keetch, 845
claim, Austin alleged *215 that Kroger negligently caused
                                                                   S.W.2d at 265.
his fall by engaging in negligent activities and by negligently
failing to provide a “necessary instrumentality,” namely,
                                                                    [26] But when the landowner is also an employer and the
the Spill Magic system that Kroger's employee handbook
                                                                   invitee is also its employee, this additional relationship may
required be available at the store. The Fifth Circuit affirmed


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 112 17
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

give rise to additional duties, such as a duty to provide        contemporaneous negligent activity is not necessary to an
necessary equipment, training, or supervision. See Moritz,       instrumentalities claim, the absence of contemporaneous
257 S.W.3d at 215 & n. 15; Islas, 228 S.W.3d at 651–52 &         activity does not necessarily bar an instrumentalities claim. 23
n. 10; Farley, 529 S.W.2d at 754. Austin's instrumentalities
claim invokes one of these additional duties: the duty to           [30] To hold otherwise would create disparate treatment of
furnish reasonably safe equipment necessary for performance        employees' instrumentalities claims depending on whether
of the job. See In re Macy's Tex., Inc., 291 S.W.3d 418, 420       the employer owned or operated the premises where the
(Tex.2009); Escoto, 288 S.W.3d at 412; Moritz, 257 S.W.3d          employee worked. Only an employer that has control over
at 215; Farley, 529 S.W.2d at 754. We have addressed the           the premises where the employee is injured has a premises-
interaction between premises-liability claims and negligent-       liability duty to the employee, but the duty to provide
activity claims on several occasions. See, e.g., Del Lago, 307     necessary and safe instrumentalities applies to employers
S.W.3d at 776; Shumake, 199 S.W.3d at 284; Keetch, 845             generally. See Moritz, 257 S.W.3d at 215; Islas, 228 S.W.3d
S.W.2d at 264. But we have never addressed the interaction         at 651–52 & n. 10; Farley, 529 S.W.2d at 754. If we
between premises-liability claims and an employer's *216           were to adopt the rule Kroger advocates, employees injured
other general negligence duties. We do so now.                     on their employers' premises by the employer's failure to
                                                                   provide necessary and safe equipment would have to try
 [27] When an injury arises from a premises condition, it is their claims under a premises-liability theory of recovery,
often the case that any resulting claim sounds exclusively         while employees injured on premises not owned by their
in premises liability, but that is not necessarily the case. An    employers would have to prosecute the same breach of duty
injury can have more than one proximate cause. Del Lago,           under a general negligence theory of recovery—two different
307 S.W.3d at 774; Lee Lewis Constr., Inc. v. Harrison, 70         claims with different elements of proof. Compare Henkel v.
S.W.3d 778, 784 (Tex.2001). The fact that Austin alleged that      Norman, 441 S.W.3d 249, 251–52 (Tex.2014) (“To prevail
a condition of the premises proximately caused his injury does     on a premises liability claim against a property owner, an
not preclude his allegation that Kroger's negligent failure to      *217 injured invitee must establish four elements: (1) the
provide the Spill Magic system also caused his injury. If the      property owner had actual or constructive knowledge of the
only relationship between Austin and Kroger were that of           condition causing the injury; (2) the condition posed an
landowner–invitee, the alleged facts could only give rise to       unreasonable risk of harm; (3) the property owner failed to
a premises-liability claim. Because the failure to provide the     take reasonable care to reduce or eliminate the risk; and (4)
Spill Magic system is nonfeasance, and not contemporaneous         the property owner's failure to use reasonable care to reduce
negligent activity, it could not give rise to a negligent-activity or eliminate the risk was the proximate cause of injuries to
claim. 22 See Del Lago, 307 S.W.3d at 776 (distinguishing          the invitee.”), with Elwood, 197 S.W.3d at 794 (“To establish
between allegations of “nonfeasance,” or the failure to act,       negligence, a party must establish a duty, a breach of that
and allegations of misfeasance, or improper actions).              duty, and damages proximately caused by the breach.”). We
                                                                   see no reason why employees injured by a breach of the
 [28]    [29] As Austin's employer, Kroger owed Austin same duty should have to prove different elements to recover.
duties in addition to its premises-liability duty and its duty     We therefore reject Kroger's argument that its lack of any
not to engage in negligent activities, including the duty to       negligent activity contemporaneous with Austin's fall defeats
provide Austin with necessary instrumentalities. See Moritz,       Austin's instrumentalities claim as a matter of law.
257 S.W.3d at 215 & n. 15; Islas, 228 S.W.3d at 651–
52 & n. 10; Farley, 529 S.W.2d at 754. Contemporaneous
negligent activity is not an element of an instrumentalities
                                                                                                 V.
claim. See Farley, 529 S.W.2d at 756–57. To the contrary,
an instrumentalities claim may be founded on nonfeasance
or misfeasance, neither of which is particularly likely to                                    Answer
occur contemporaneously with a resulting injury to the
                                                                   For the reasons we have explained, we provide the following
employee. Compare Martinez, 515 S.W.2d at 265 (failure to
                                                                   answer to the Fifth Circuit's certified question: Under Texas
provide adequate equipment), with Farley, 529 S.W.2d at 757
                                                                   law, an employee generally cannot “recover against a
(provision of unsuitable horse); cf. Del Lago, 307 S.W.3d
                                                                   nonsubscribing employer for an injury caused by a premises
at 776 (discussing misfeasance and nonfeasance). Because



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Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

                                                                   are open and obvious or otherwise known to the employee.
defect of which he was fully aware but that his job duties
                                                                   Exceptions to this general rule may apply in premises liability
required him to remedy.” As is the case with landowners and
                                                                   cases involving third-party criminal activity or a necessary
invitees generally, employers have a duty to maintain their
                                                                   use of the premises. If an exception applies, the employer may
premises in a reasonably safe condition for their employees,
                                                                   owe a duty to protect the employee from the unreasonably
but they will ordinarily satisfy their duty as a matter of law
                                                                   dangerous condition despite the employee's awareness of
by providing an adequate warning of concealed dangers
                                                                   the danger, and the TWCA will prohibit a nonsubscribing
of which they are or should be aware but which are not
                                                                   employer from raising defenses based on the employee's
known to the employee. “The employee's awareness of the
                                                                   awareness.
defect” does not “eliminate the employer's duty to maintain
a safe workplace,” but with respect to premises conditions,
that duty is ordinarily satisfied by warning the employee
                                                                   All Citations
of concealed, unknown dangers; the duty to maintain a
reasonably safe workplace generally does not obligate an           465 S.W.3d 193, 165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J.
employer to eliminate or warn of dangerous conditions that         1154


Footnotes
1      746 F.3d 191 (5th Cir.2014) (per curiam); see TEX. CONST. Art. V, § 3–c(a) (“The supreme court [has] jurisdiction to
       answer questions of state law certified from a federal appellate court.”); TEX. R. APP. P. 58 (certified questions of law).
2      See TEX. LAB. CODE § 406.002 (providing that “an employer may elect to obtain workers' compensation insurance
       coverage” and thus be “subject to” the Texas Workers' Compensation Act).
3      See, e.g., State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) ( “A negligent activity claim requires that the claimant's
       injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity.”).
4      See, e.g., Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975) (“It is well established that an employer has certain
       nondelegable and continuous duties to his employees,” including “the duty to furnish reasonably safe instrumentalities
       with which employees are to work.”).
5      The district court held, and the Fifth Circuit agreed, that Austin's injury arose from a premises condition rather than any
       contemporaneous activity by Kroger, and Austin “cannot pursue both a negligent activity and a premises defect theory
       of recovery based on the same injury.” 746 F.3d at 196–97.
6      The Fifth Circuit agreed with the district court's holding that “no reasonable juror could conclude that Kroger was
       consciously indifferent to the safety of its employees, or that [Austin] faced an extreme risk in performing a job he had
       done safely for years.” Id. at 196 n. 2.
7      A premises-liability duty may apply to the owner of the premises or to another party who operates or exercises control
       over the premises. See, e.g., Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex.2008). We use the term “landowner”
       in this opinion to refer to all such parties.
8      We use the term “generally” here to acknowledge circumstances in which an employee may not be an “invitee” on
       the employer's premises. For example, if an employee, acting outside the scope of employment, enters the employer's
       premises without the employer's knowledge and not for their mutual benefit, the employee might be a licensee or even
       a trespasser. We need not decide that issue here.
9      E.g., Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 771 (Tex.2010); TXI Operations, L.P. v. Perry, 278 S.W.3d 763,
       764 (Tex.2009); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995).
10     E.g., Escoto, 288 S.W.3d at 412; Goss, 262 S.W.3d at 794; Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651
       (Tex.2007); Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex.2004).
11     E.g., Henkel v. Norman, 441 S.W.3d 249, 252 (Tex.2014); TXI, 278 S.W.3d at 765; State v. Williams, 940 S.W.2d 583,
       584 (Tex.1996).
12     See also Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002) (stating that landowner owed invitee “a
       duty to exercise reasonable care to protect her from dangerous conditions in the store that were known or reasonably
       discoverable, but it was not an insurer of her safety”); Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996) (“An employer
       is not an insurer of its employees' safety at work; however, an employer does have a duty to use ordinary care in providing
       a safe work place.”).




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                   APPENDIX 114 19
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

13     In Urena, we recognized that the facts of that case—tenant-on-tenant crime as opposed to crimes committed against
       tenants by nonresidents—might require a different duty analysis than that used in Timberwalk, but we did not reach that
       issue because, even assuming a duty existed, the plaintiff presented no evidence of causation. 162 S.W.3d at 551 n. 2.
14     In Holder, we restated the duty rule from Timberwalk: “With regard to criminal acts of third parties, property owners owe
       a duty to those who may be harmed by the criminal acts only when the risk of criminal conduct is so great that it is both
       unreasonable and foreseeable.” 5 S.W.3d at 655. But we also noted that, in most cases, “the foreseeability analysis
       will be shaped by determining whether the plaintiff was an invitee, a licensee, or a trespasser.” Id. We did not have to
       determine the plaintiff's status in that case because the plaintiff “was an unforeseeable victim regardless of her status.” Id.
15     In TXI, the Court did not refute this construction of Parker, which is consistent with the Court's explanations in Moritz and
       Dixon, but instead “assume[d] that a duty to warn exist[ed]” because the defendant did “not attempt to argue that it owed
       no duty,” and argued instead that it satisfied its duty by providing an adequate warning. TXI, 278 S.W.3d at 765.
16     The common law assumption-of-the-risk doctrine we refer to here involves implied assumptions of risk and not express,
       contractual assumption of the risk or statutory assumption-of-the-risk defenses. See, e.g., TEX. CIV. PRAC. & REM.
       CODEE § 93.001.
17     See also Dugger, 408 S.W.3d at 832 (“Proportionate responsibility abrogated former common law doctrines that barred a
       plaintiff's recovery because of the plaintiff's conduct—like assumption of the risk, imminent peril, and last clear chance—
       in favor of submission of a question on proportionate responsibility.”); TEX. CIV. PRAC. & REM. CODE E §§ 33.001–.017
       (proportionate-responsibility statute).
18     This Court has cited Robinson on seven occasions. See Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 549 (Tex.2001);
       Werner, 909 S.W.2d at 868; Hernandez v. City of Fort Worth, 617 S.W.2d 923, 925 (Tex.1981); Leadon v. Kimbrough
       Bros. Lumber Co., 484 S.W.2d 567, 568 (Tex.1972); Royal Indem. Co. v. Dennis, 410 S.W.2d 185, 187 (Tex.1966);
       Tarver v. Tarver, 394 S.W.2d 780, 782 (Tex.1965); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 377 (Tex.1963),
       abrogated by Parker, 565 S.W.2d at 516. On three of those occasions, the Court cited Robinson for an error-preservation
       issue rather than the holding on the merits of the case. See Hernandez, 617 S.W.2d at 925; Dennis, 410 S.W.2d at 187;
       Tarver, 394 S.W.2d at 782. On four occasions the Court cited Robinson for merits-based holdings. See Lawrence, 44
       S.W.3d at 549; Werner, 909 S.W.2d at 868; Leadon, 484 S.W.2d at 568–69; Halepeska, 371 S.W.2d at 377. One such
       case, Halepeska, was not an employer-employee case, and was later abrogated by Parker. Halepeska, 371 S.W.2d at
       377. Leadon did not involve an argument that the danger at issue was open and obvious or known to the employee;
       instead, the issue was whether the employer had a duty to hire someone to watch for falling limbs while the employee
       performed his logging work. 484 S.W.2d at 568–69. In Werner, the Court cited Robinson for the general principle that an
       employee cannot recover on a negligence claim against a nonsubscribing employer without proving that the employer was
       negligent. Werner, 909 S.W.2d at 868 (holding that there was no evidence of the negligence alleged). And in Lawrence,
       which was later superseded in part by statute, see TEX. LAB. CODE § 406.033(e), we cited Robinson, among numerous
       other cases, only for the proposition that the Workers' Compensation Act did not bar all possible defenses to liability a
       nonsubscribing employer might have. Lawrence, 44 S.W.3d at 549.
19     See Escoto, 288 S.W.3d at 412–13 (“[T]he employer ‘owes no duty to warn of hazards that are commonly known or
       already appreciated by the employee.’ ... Likewise, we do not impose a duty to train employees regarding the commonly-
       known dangers of driving while fatigued.”); Goss, 262 S.W.3d at 794 (“The threshold question here is one of duty, as
       we have held that an employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by
       the employee.’ ”); Skiles, 221 S.W.3d at 568 (“[W]hile the duty of ordinary care generally requires an employer to ‘warn
       an employee of the hazards of employment and provide needed safety or equipment or assistance,’ the employer ‘owes
       no duty to warn of hazards that are commonly known or already appreciated by the employee.’ ”); Elwood, 197 S.W.3d
       at 795 (“[Employer] had no duty to warn [employee] of a danger known to all and no obligation to provide training or
       equipment to dissuade an employee from using a vehicle doorjamb for leverage.”).
20     Some courts of appeals have applied Timberwalk in employer–employee premises-liability cases. See, e.g., Barton v.
       Whataburger, Inc., 276 S.W.3d 456, 462 (Tex.App.–Houston [1st Dist.] 2008, pet. denied); Gibbs v. ShuttleKing, Inc.,
       162 S.W.3d 603, 610 (Tex.App.–El Paso 2005, pet. denied); Allen v. Connolly, 158 S.W.3d 61, 65 (Tex.App.–Houston
       [14th Dist.] 2005, no pet.). We have never expressly held that Timberwalk governs an employer's duty to employees with
       respect to third-party criminal activity on the premises, and that issue is not presented here. We have held, and hold
       again here, that at least in general, an employer's premises-liability duty to employees is the same as other landowners'
       premises-liability duties to other invitees. See, e.g., Hernandez, 374 S.W.2d at 197.
21     In Goss, the employee had to “maneuver around a ‘lowboy’ loading cart” to retrieve items from a deli cooler. 262 S.W.3d
       at 794. “She successfully stepped over the cart and entered the cooler. After she retrieved what she needed, she turned



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                    APPENDIX 115 20
Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (2015)
165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J. 1154

       around to leave the cooler and hit her shin on the lowboy, causing her to reach out for a shelf to prevent herself from
       falling. In doing so, she injured her back.” Id.
22     We do not decide here whether a single injury could give rise to both a premises-liability claim and a negligent-activity
       claim if both the condition of the premises and the contemporary activities of the premises owner proximately cause the
       injury.
23     We do not decide which, if any, of the limitations on an employer's premises-liability duty may also apply to its
       instrumentalities duty.


End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 116 21
Kroger Co. v. Elwood, 197 S.W.3d 793 (2006)
49 Tex. Sup. Ct. J. 623

                                                                             not recover for injuries sustained when customer
                                                                             slammed car door on employee's hand; no
     KeyCite Yellow Flag - Negative Treatment                                evidence was presented indicating that loading
Distinguished by Duncan v. First Texas Homes,   Tex.App.-Fort Worth,
                                                                             groceries on sloped portion of store's parking
 February 12, 2015
                                                                             lot was unusually dangerous, that other courtesy
                                                                             clerks had suffered similar injuries, that job
                                                                             required special training, or that carts with wheel
                                                                             locks were necessary to safely load vehicles, and
                                                                             employee admitted he knew it was dangerous to
                                                                             place hand on vehicle doorjamb.

                                                                             9 Cases that cite this headnote


                                                                       [2]   Workers' Compensation
                                                                                Instructions
Synopsis
Background: Grocery store employee brought negligence                        Nonsubscribers to workers' compensation are not
action against grocery store for injuries sustained when                     entitled to a contributory negligence instruction
customer slammed car door on employee's hand while he                        in an employee's action for work-related injuries.
was loading groceries into her car. The 18th Judicial District
                                                                             Cases that cite this headnote
Court, Johnson County, John E. Neill, J., entered judgment on
jury's verdict in favor of employee, and employer appealed.
The Court of Appeals affirmed.                                         [3]   Negligence
                                                                                 Elements in General
                                                                             To establish negligence, a party must establish
[Holding:] On petition for review, the Supreme Court held                    a duty, a breach of that duty, and damages
that grocery store had no duty to warn employee of danger of                 proximately caused by the breach.
placing hand on doorjamb of customer's vehicle while loading
                                                                             76 Cases that cite this headnote
groceries.

                                                                       [4]   Negligence
Reversed and rendered.                                                           Necessity and Existence of Duty
                                                                             Negligence
                                                                                 Duty as Question of Fact or Law Generally
 West Headnotes (10)                                                         Whether a duty exists is a threshold inquiry and
                                                                             a question of law in a negligence action; liability
                                                                             cannot be imposed if no duty exists.
 [1]     Labor and Employment
             Duty to Warn                                                    28 Cases that cite this headnote
         Labor and Employment
             Dangers or Defects Known to Employee
                                                                       [5]   Labor and Employment
         Grocery store had no duty to warn store                                 Nature and Scope of Duty Owed by
         employee of danger of placing hand on vehicle                       Employer
         doorjamb and one foot on grocery cart to
                                                                             An employer has a duty to use ordinary care in
         prevent it from rolling on sloped parking lot
                                                                             providing a safe workplace.
         while loading groceries into customer's vehicle,
         or to provide grocery carts with wheel locks                        14 Cases that cite this headnote
         or additional personnel to assist with loading
         groceries into vehicles, and thus, employee could



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  APPENDIX 117                  1
Kroger Co. v. Elwood, 197 S.W.3d 793 (2006)
49 Tex. Sup. Ct. J. 623

                                                                   employer is not liable if there is no evidence that
 [6]    Labor and Employment                                       the work is unusually precarious.
            Nature and Scope of Duty Owed by
        Employer                                                   6 Cases that cite this headnote
        Labor and Employment
            Kind of Equipment
        Labor and Employment
            Duty to Warn                                  Attorneys and Law Firms

        An employer has a duty to warn an employee of     *794 Brian J. Brandstetter, Brackett & Ellis, P.C., Fort
        the hazards of employment and provide needed      Worth, for Petitioner.
        safety equipment or assistance.
                                                          Rodney R. Elkins, Rodney R. Elkins & Co., Dallas, for
        25 Cases that cite this headnote                  Respondent.

                                                          Opinion
 [7]    Labor and Employment
            Liability as Insurer; Relationship to         PER CURIAM.
        Workers' Compensation
        An employer is not an insurer of its employees'   Billy Elwood, a courtesy clerk at a Kroger grocery store,
        safety.                                           was injured when a customer shut her vehicle door on his
                                                          hand while he was transferring items from a grocery cart
        5 Cases that cite this headnote                   to the vehicle. Elwood had placed one hand in the vehicle's
                                                          doorjamb, and one foot on the cart, to keep the cart from
                                                          rolling down a slope in Kroger's parking lot. In the trial court,
 [8]    Labor and Employment
                                                          a jury found Kroger liable for Elwood's injuries; the court of
            Dangers or Defects Known to Employee
                                                          appeals affirmed the judgment. Because Kroger had no duty
        An employer owes no duty to warn an employee      to warn Elwood not to place his hand in a doorjamb, and there
        of hazards that are commonly known or already     is no evidence that additional equipment or assistance were
        appreciated by the employee.                      needed to perform Elwood's job safely, we reverse and render
                                                          judgment for Kroger.
        24 Cases that cite this headnote

                                                           [1] Kroger is a nonsubscriber to workers' compensation;
 [9]    Labor and Employment                              therefore, to recover damages Elwood must establish that
            Nature and Scope of Duty Owed by              Kroger's negligence proximately caused his injuries. See
        Employer                                          Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995). Elwood
        Labor and Employment                              alleges that Kroger provided inadequate training on how to
            Kind of Equipment                             maneuver carts on a sloped parking lot, never advised that he
        An employer has no duty to provide to its         should take a second clerk with him to the sloped portion of
        employees equipment or assistance that is         the lot, and provided no explanation on how to avoid injury
        unnecessary to the job's safe performance.        when loading groceries into customers' vehicles. Elwood also
                                                          alleges that, even though Kroger was aware that customers'
        11 Cases that cite this headnote                  vehicles were often damaged by rolling carts in the sloped
                                                          parking area, it never provided carts with locking wheels or
                                                          wheel blocks.
 [10]   Labor and Employment
             Working Conditions and Methods of
                                                           [2] A jury found Kroger liable for Elwood's injuries, but
        Performing Work
                                                          also determined that Elwood was forty percent negligent.
        When an employee's injury results from            The trial court reduced Elwood's judgment accordingly. A
        performing the same character of work that        divided court of appeals affirmed the verdict, holding it was
        employees in that position have always done, an   supported by factually and legally sufficient evidence. 2004


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.         APPENDIX 118                  2
Kroger Co. v. Elwood, 197 S.W.3d 793 (2006)
49 Tex. Sup. Ct. J. 623

                                                                    Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d
WL 2567069. Because nonsubscribers are not entitled to
                                                                    249, 251 (1943)).
a contributory negligence instruction, the court of appeals
reformed the judgment and awarded Elwood one hundred
                                                            In this case, there is no evidence that loading groceries on
percent of the damages. 2004 WL 2567069 (citing Kroger
                                                            the sloped portion of Kroger's parking lot is an unusually
Co. v. Keng, 23 S.W.3d 347, 352 (Tex.2000)). Kroger now
                                                            dangerous job, nor is there evidence that other courtesy
petitions for review, arguing that there is no evidence to
                                                            clerks sustained similar injuries while loading groceries on
support the jury's verdict.
                                                            the sloped lot. Indeed, loading purchases into vehicles is a
 [3] [4] To establish negligence, a party must establish a task performed regularly—without any special training or
                                                            assistance—by customers throughout the grocery and retail
duty, a breach of that duty, and damages proximately caused
                                                            industry. While there is evidence that grocery carts had rolled
by the breach. Werner, 909 S.W.2d at 869 (citing El Chico
                                                            into vehicles due to the parking lot's slope and may have posed
Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987)). Whether
                                                            a foreseeable risk of damage to customers' vehicles, this is
a duty exists is a threshold inquiry and a question of law;
                                                            no evidence that the slope posed a foreseeable risk of injury
liability cannot be imposed if no duty exists. Van Horn v.
                                                            to Kroger's employees. Elwood presented no evidence that
Chambers, 970 S.W.2d 542, 544 (Tex.1998).
                                                            his job required specialized training. See Nat'l Convenience
                                                            Stores, 987 S.W.2d at 149. Elwood testified that, prior to
 [5]     [6]   [7]    [8]    [9]   [10] An employer has a duty
                                                            working at Kroger, he knew it was dangerous to place his
to use ordinary care in providing a safe workplace. Farley
                                                            hand in a vehicle's doorjamb. Moreover, there is no evidence
v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex.1975).
                                                            that carts with wheel locks or additional personnel were
It must, for example, warn an employee of the hazards
                                                            necessary to safely load groceries. See Allsup's Convenience
of employment and provide needed safety equipment or
                                                            Stores, 934 S.W.2d at 438.
assistance. Id. However, an employer is not an insurer of
its employees' safety. Leitch v. Hornsby, 935 S.W.2d 114,
                                                                    Kroger had no duty to warn Elwood of a danger known to
117 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19,
                                                                    all and no obligation to provide training or equipment to
21 (Tex.1993). It owes no duty to warn of hazards that are
                                                                    dissuade an employee from using a vehicle doorjamb for
commonly known or already appreciated by the employee.
                                                                    leverage. Employers are not insurers of their employees. See
See Nat'l Convenience *795 Stores, Inc. v. Matherne, 987
                                                                    Leitch, 935 S.W.2d at 117; Exxon Corp., 867 S.W.2d at 21.
S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no
                                                                    Accordingly, without hearing oral argument, we reverse the
pet.). It has no duty to provide equipment or assistance that
                                                                    court of appeals' judgment and render judgment for Kroger.
is unnecessary to the job's safe performance. See Allsup's
                                                                    See TEX. R. APP. P. 59.1, 60.2(c).
Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 438
(Tex.App.—Amarillo 1996, writ denied). And, when an
employee's injury results from performing the same character
                                                                    All Citations
of work that employees in that position have always done, an
employer is not liable if there is no evidence that the work        197 S.W.3d 793, 49 Tex. Sup. Ct. J. 623
is unusually precarious. Werner, 909 S.W.2d at 869 (citing

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                   APPENDIX 119                3
Kroger Company v. Milanes, --- S.W.3d ---- (2015)
2015 WL 4594098

                                                                   had no bearing on relevance as fair and accurate depictions
                                                                   of saw at issue;

                                                                   [6] video recordings of operable and inoperable bone-in band
                                                                   saws were relevant;

                                                                   [7] video and photographic evidence were not subject to
                                                                   exclusion based on employer's unsubstantiated claim that they
                                                                   were illegally obtained; and

                                                                   [8] trial court's alleged failure to timely investigate and
                                                                   respond to juror's report to bailiff about jury misconduct
                                                                   during deliberations did not warrant new trial.


                                                                   Affirmed.




Synopsis                                                            West Headnotes (38)
Background: Journeyman filed suit against employer that
was not subscriber of workers' compensation insurance for
                                                                    [1]    Trial
negligence arising out of amputation of several fingers while
                                                                                Matters of law in general
using bone-in band saw to cut meat. Following jury trial,
the 129th District Court, Harris County, entered judgment on               Trial
jury's verdict for journeyman, and denied employer's motion                     Form and Language
for new trial. Employer appealed.                                          The parties have the right to be judged by a jury
                                                                           properly instructed in the law; therefore, the goal
                                                                           is to submit to the jury the issues for decision
                                                                           logically, simply, clearly, fairly, correctly, and
Holdings: The Court of Appeals, J. Brett Busby, J., held that:
                                                                           completely. Tex. R. Civ. P. 278.

[1] employer owed employee duties arising out of employer-                 Cases that cite this headnote
employee relationship, in addition to premises liability duties,
and thus, was subject to liability in negligence for breach of
those duties;                                                       [2]    Trial
                                                                                Authority to instruct jury in general
[2] employer's breach of duty to provide adequate                          Trial courts enjoy broad discretion with respect
maintenance for band saw was proximate cause of                            to jury instructions, so long as the charge is
journeyman's injuries;                                                     legally correct. Tex. R. Civ. P. 278.

                                                                           Cases that cite this headnote
[3] employer's breach of its duty to provide safety regulations
to journeymen and other meat cutters on safe operation of
band saw was proximate cause of journeyman's injuries;              [3]    Labor and Employment
                                                                               Nature and scope of duty owed by employer
[4] evidence supported award of $151,744 in damages for lost               Employer that elected not to subscribe
earning capacity;                                                          to workers' compensation insurance owed
                                                                           employee duties arising out of employer-
[5] fact that photographs of bone-in band saw that journeyman              employee relationship, in addition to premises
was using at time of accident were taken months after accident             liability duties, and thus, was subject to liability



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 120                   1
Kroger Company v. Milanes, --- S.W.3d ---- (2015)
2015 WL 4594098

        in negligence for breach of those duties,                  If an employer elects to be a non-subscriber
        specifically, duty to provide employee with safe           to workers' compensation insurance, then it is
        place to work, duty to train employee in safe              subject to suits at common law for damages,
        use and handling of band saw, and duty to                  to which it can raise only limited defenses, and
        provide safety regulations related to employee's           in that situation, an employee injured on the
        job as journeyman meat cutter, which resulted in           job must file suit and prove the elements of a
        employee suffering amputation of several fingers           common law negligence claim. Tex. Labor Code
        during operation of band saw while cutting meat.           Ann. § 406.033(d).
        Tex. Labor Code Ann. § 406.033(d).
                                                                   Cases that cite this headnote
        1 Cases that cite this headnote

                                                            [7]    Negligence
 [4]    Workers' Compensation                                          Elements in general
           Election by Employer                                    To establish negligence, a party must establish
        The Texas Workers' Compensation Act permits                a duty, a breach of that duty, and damages
        private Texas employers to elect whether to                proximately caused by the breach.
        subscribe to workers' compensation insurance.
        Tex. Labor Code Ann. § 406.002(a).                         Cases that cite this headnote

        Cases that cite this headnote
                                                            [8]    Labor and Employment
                                                                       Nature and scope of duty owed by employer
 [5]    Workers' Compensation                                      Among the duties that an employer owes to an
            Injuries arising in course of employment in            employee are to (1) furnish a reasonably safe
        general                                                    place to work, (2) warn employees of hazards of
        Workers' Compensation                                      their employment that are not commonly known
             Exclusiveness of Remedies Afforded by                 or already appreciated, (3) supervise employees'
        Acts                                                       activities, (4) hire competent co-employees,
        If an employer elects to subscribe to workers'             (5) furnish reasonably safe instrumentalities
        compensation insurance, then its employees                 with which to work, and (6) provide safety
        generally are prohibited from suing it and                 regulations.
        must instead pursue their claims through an
                                                                   1 Cases that cite this headnote
        administrative agency, and in that administrative
        proceeding, employees need prove only that they
        were injured in the course and scope of their       [9]    Labor and Employment
        employment. Tex. Labor Code Ann. § 401.001                     Nature and scope of duty owed by employer
        et seq.                                                    An employer must train employees in the safe
                                                                   use and handling of products and equipment
        Cases that cite this headnote
                                                                   used in and around an employer's premises or
                                                                   facilities.
 [6]    Workers' Compensation
           Defenses; Abrogation or Modification of                 Cases that cite this headnote
        Common-Law Defenses
        Workers' Compensation                               [10]   Labor and Employment
            Negligence of Employer as Essential to                     Nature and Scope of Duty Owed by
        Recovery                                                   Employer
        Workers' Compensation                                      An employer must exercise ordinary care, based
           Presumptions and burden of proof                        on standard negligence principles, in carrying
                                                                   out the duties owed to its employees.


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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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                                                                   Cause in fact, as an element of proximate cause,
        Cases that cite this headnote                              is not shown if the defendant's conduct did no
                                                                   more than furnish a condition that made the
 [11]   Courts                                                     injury possible.
            Highest appellate court
                                                                   Cases that cite this headnote
        Changing higher-court precedent is not the
        function of an intermediate court of appeals.
                                                            [16]   Negligence
        Cases that cite this headnote                                  Foreseeability
                                                                   “Foreseeability,” as an element of proximate
 [12]   Negligence                                                 cause, requires that a person of ordinary
            Elements in general                                    intelligence should have anticipated the danger
                                                                   created by the negligent act or omission.
        To prevail on a negligence claim, a plaintiff
        must prove not only that the defendant breached            Cases that cite this headnote
        a duty, but also that he sustained damages
        proximately caused by that breach.
                                                            [17]   Negligence
        Cases that cite this headnote                                  In general; degrees of proof
                                                                   Negligence
 [13]   Negligence                                                     Direct or circumstantial evidence
            Necessity of causation                                 “Cause in fact” and foreseeability, as elements
        Negligence                                                 of proximate cause, cannot be established by
            Foreseeability                                         mere conjecture, guess, or speculation; however,
                                                                   proximate cause may be established by direct
        Proximate cause consists of two elements: cause
                                                                   or circumstantial evidence and the reasonable
        in fact and foreseeability.
                                                                   inferences drawn from that evidence.
        Cases that cite this headnote
                                                                   Cases that cite this headnote

 [14]   Negligence
                                                            [18]   Labor and Employment
             ‘But-for‘ causation; act without which
                                                                       Weight and sufficiency of evidence
        event would not have occurred
                                                                   Evidence supported finding that employer's
        Negligence
                                                                   breach of its duty to provide adequate
            Substantial factor
                                                                   maintenance for band saw used by journeyman to
        Negligence
                                                                   cut meat was proximate cause of amputation of
            Failure to Act; Omissions
                                                                   several of journeyman's fingers, in action against
        “Cause in fact,” as an element of proximate                employer that did not subscribe to workers'
        cause, means that the defendant's act or omission          compensation insurance; employee charged with
        was a substantial factor in bringing about                 maintaining and repairing saw was not certified
        the injury, which would not otherwise have                 to do so by saw manufacturer, other meat cutter
        occurred.                                                  frequently attempted to repair saw, contrary to
                                                                   employer's policy that only thing meat cutter
        Cases that cite this headnote
                                                                   should do to band saw was to change dull
                                                                   blade, blade guard was inoperable and not
 [15]   Negligence                                                 used at all, loud noise indicated improper
            Remoteness and attenuation; mere                       blade tension, which could cause blade to
        condition or occasion                                      bind into meat and cause meat to roll, several
                                                                   employees testified that blade would often pop


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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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        off and that blades would dull very quickly,               compensation insurance, arising out of
        indicating that something was “very wrong”                 amputation of three of journeyman's fingers
        with saw, journeyman testified that blade was              while using band saw to cut meat; employer
        dull on day of injury, that he had repeatedly              began pressuring journeyman to return to
        reported issues with saw to management, that               work as early as four weeks after accident
        no action was taken, and that, although he had             and unsuccessful surgery to replace fingers,
        discretion to change out blade when he deemed              journeyman was right-handed and he lost fingers
        it necessary, management had instructed him                from his right hand, he was returned to work in
        to be conservative in using blades, as there               close proximity to band saws, despite doctor's
        was financial incentive for those managers to              concern that he should not be required to
        come under budget. Tex. Labor Code Ann. §                  work around saws, he was initially returned to
        406.033(d).                                                work on light duty but was fired for alleged
                                                                   insubordination after he refused to perform
        Cases that cite this headnote                              activity due to condition of his hand and
                                                                   informed manager of that fact, he was unable
 [19]   Labor and Employment                                       to satisfactorily perform work in two other
            Weight and sufficiency of evidence                     jobs involving manual labor, and there was
                                                                   no challenge to journeyman's expert economist
        Evidence supported finding that employer's
                                                                   quantifying journeyman's loss of past and future
        breach of its duty to provide safety regulations
                                                                   earning capacity. Tex. Labor Code Ann. §
        to journeymen and other meat cutters on safe
                                                                   406.033(d).
        operation of band saw used to cut meat was
        proximate cause of journeyman's injuries from              Cases that cite this headnote
        amputation of several fingers while using saw,
        in action against employer that did not subscribe
        to workers' compensation insurance; employee        [21]   Damages
        testified that he was not even aware of existence             Impairment of earning capacity
        of blade guard and was not using it on day                 Loss or impairment of earning capacity is a
        of injury, it was common practice of meat                  recognized element of damages in a personal
        cutters to not use blade guard, managers were              injury case.
        aware of this practice but chose to do nothing
        about it, mechanical engineering experts for both          Cases that cite this headnote
        journeyman and employer testified that band
        saw should not be used without blade guard,         [22]   Damages
        and journeyman's expert explained that accident               Necessity of proof as to damages in general
        would not have occurred, if blade guard had
                                                                   The plaintiff has the burden of proving loss of
        been used as required by operator's manual. Tex.
                                                                   earning capacity as an element of damages in a
        Labor Code Ann. § 406.033(d).
                                                                   personal injury case.
        Cases that cite this headnote
                                                                   Cases that cite this headnote

 [20]   Damages
                                                            [23]   Damages
           Arm, hand, wrist, and shoulder injuries
                                                                      Impairment of earning capacity
        Evidence
                                                                   The measure of damages for lost earning
            Damages
                                                                   capacity in a negligence case is the plaintiff's
        Evidence supported award of $151,744                       diminished earning power or earning capacity,
        in damages for lost earning capacity,                      in the past or future, directly resulting from the
        in journeyman's negligence action against                  injuries sustained in the accident.
        employer that did not subscribe to workers'



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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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        Cases that cite this headnote                             Cases that cite this headnote


 [24]   Damages                                            [29]   Evidence
           Impairment of earning capacity                             Photographs in general
        To support an award of damages for lost earning           Generally, pictures or photographs relevant to
        capacity, the plaintiff generally must introduce          any issue in a case are admissible.
        evidence from which a jury may reasonably
        measure in monetary terms his earning capacity            Cases that cite this headnote
        prior to injury.
                                                           [30]   Evidence
        Cases that cite this headnote
                                                                      Photographs in general
                                                                  Evidence
 [25]   Damages                                                       Motion pictures
           Impairment of earning capacity
                                                                  When a photograph or video portrays facts
        Specific proof of actual earnings and income are          relevant to an issue, it is admissible if verified by
        evidence of lost earning capacity.                        a witness as being a correct representation of the
                                                                  facts.
        Cases that cite this headnote
                                                                  Cases that cite this headnote
 [26]   Trial
             Admission of evidence in general              [31]   Evidence
        Trial                                                          Photographs and other pictures; sound
             Exclusion of improper evidence                       records and pictures
        The decision to admit or exclude evidence lies            When a photograph or video portraying facts
        within the sound discretion of the trial court.           relevant to an issue, the witness through whom
                                                                  the photograph or video is introduced must know
        Cases that cite this headnote                             the object involved and be able to state that the
                                                                  photograph or video correctly represents it.
 [27]   Appeal and Error
                                                                  Cases that cite this headnote
           Rulings as to Evidence in General
        A party seeking to reverse a judgment based
        on evidentiary error must prove that the           [32]   Evidence
        error probably resulted in rendition of an                    Photographs in general
        improper judgment, which usually requires the             The fact that the scene or the object portrayed in
        complaining party to show that the judgment               a photograph or video offered into evidence has
        turns on the particular evidence excluded or              changed since the time of the event in question
        admitted.                                                 in the litigation does not prevent the admission
                                                                  of the photograph or video into evidence if the
        Cases that cite this headnote                             changes are explained in such a manner that
                                                                  the photograph or video will help the jury in
 [28]   Evidence                                                  understanding the nature of the condition at the
            Relevancy in general                                  time of the event at issue.
        Facts existing both before and after an event in          Cases that cite this headnote
        controversy may be relevant to establishing the
        cause of that event. Tex. R. Evid. 402.
                                                           [33]   Evidence



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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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             Determination of question of admissibility            time of accident and of operable band saw, which
        A dispute as to the accuracy of some part of               were offered to show employer's breach of duties
        the photograph or video usually goes only to the           to provide journeymen and meat cutters with
        weight of the evidence, not to its admissibility.          training on safe use of band saw and to maintain
                                                                   saws in safe and operable condition, were not
        Cases that cite this headnote                              subject to exclusion in trial on journeyman's
                                                                   negligence action against employer that did not
                                                                   subscribe to workers' compensation insurance
 [34]   Evidence
                                                                   arising out of amputation of several fingers while
            Determination of question of admissibility
                                                                   using saw, based on employer's claim that videos
        Fact that photographs of bone-in band saw that
                                                                   and photographs were taken illegally, absent any
        journeyman was using to cut meat at time of
                                                                   showing that journeyman had committed crimes
        accident were taken months after accident had no
                                                                   of criminal trespass or improper photography or
        bearing on relevance of photographs as fair and
                                                                   visual recording at time videos were recorded
        accurate depiction of saw, in negligence action
                                                                   and photographs were taken. Tex. Labor Code
        against employer. Tex. R. Evid. 402.
                                                                   Ann. § 406.033(d); Tex. Civ. Prac. & Rem. Code
        Cases that cite this headnote                              Ann. § 123.002; Tex. Crim. Proc. Code Ann. art.
                                                                   38.23; Tex. Penal Code Ann. §§ 21.15, 30.05.

 [35]   Workers' Compensation                                      Cases that cite this headnote
           Admissibility of evidence
        Video recording of bone-in band saw used to         [37]   New Trial
        cut meat that was making loud noise when                       Misconduct of or affecting jurors
        turned on, together with videos of saw that
                                                                   Trial court's alleged failure to timely investigate
        did not make such noise when running, and
                                                                   and respond to juror's report to bailiff about jury
        of non-operational saw for which blade had
                                                                   misconduct during deliberations, specifically,
        popped off were relevant, in journeyman's
                                                                   that attorney member of jury was offering his
        negligence action against employer that did not
                                                                   own definition of legal phrases and words based
        subscribe to workers' compensation insurance,
                                                                   on his own experience and that another juror
        arising out of amputation of several fingers on
                                                                   contributed her own thoughts based on her
        journeyman's right hand while using saw to
                                                                   experience as legal assistant, did not warrant new
        cut meat; journeyman testified that saw he was
                                                                   trial in journeyman's action against employer
        using at time of accident was making loud noise
                                                                   for negligence arising out of work-related
        similar to saw in video, and journeyman was
                                                                   amputation of fingers while using band saw
        heard in video of inoperable band saw saying
                                                                   to cut meat, where alleged misconduct did not
        “once again, the saw is broken on the same day
                                                                   involve outside influence brought to bear on jury,
        they said they fixed it,” and videos were offered
                                                                   and thus, juror was prohibited from testifying
        to prove that employer breached its duties to
                                                                   about deliberations. Tex. R. Civ. P. 327(b); Tex.
        train journeyman and meat cutters on proper
                                                                   R. Evid. 606.
        use of saw and to maintain equipment used by
        employees to perform job duties. Tex. Labor                Cases that cite this headnote
        Code Ann. § 406.033(d); Tex. R. Evid. 402.

        Cases that cite this headnote                       [38]   Appeal and Error
                                                                      Remarks and conduct of judge
                                                                   To reverse a judgment on the basis of judicial
 [36]   Evidence
                                                                   misconduct, a reviewing court must conclude
            Evidence wrongfully obtained
                                                                   both that judicial impropriety occurred and that
        Video recordings and photographs of bone-in
                                                                   the complaining party suffered harm.
        band saw used by journeyman to cut meat at


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                                                                      Kroger argues in its sixth issue that the trial court abused
         Cases that cite this headnote                                its discretion when it failed to intervene to remedy alleged
                                                                      juror misconduct. We overrule this issue because, even if we
                                                                      assume the trial court had a duty to intervene and failed to do
                                                                      so, Kroger has not established that it was harmed as a result.
On Appeal from the 129th District Court, Harris County,               We therefore affirm the trial court's judgment.
Texas, Trial Court Cause No. 2011–44685

Attorneys and Law Firms
                                                                                            BACKGROUND
Chance McMillan, Jason A. Gibson, Peter Michael Kelly, for
Christopher Milanes.                                                  A. Kroger hires Milanes and trains him as a journeyman
                                                                      meat cutter.
Brock C. Akers, for the Kroger Company.                               Milanes applied for a job at Kroger in 2007. Milanes
                                                                      went through a one-day orientation before he started work.
Panel consists of Justices Jamison, Busby, and Brown.                 According to Milanes, the orientation did not involve safety
                                                                      training but instead covered the advantages of joining the
                                                                      union. Once Milanes started working for Kroger, he was
                           OPINION                                    assigned to work in the meat department as a clerk. After
                                                                      he had been working for about a month, Kroger promoted
J. Brett Busby, Justice
                                                                      Milanes to apprentice meat cutter. Milanes then moved from
 *1 Appellant, The Kroger Company, a non-subscriber                   store to store before eventually being assigned to the Post Oak
to workers' compensation insurance, appeals from a final              Kroger in 2009.
judgment in favor of appellee Christopher Milanes, a Kroger
employee who was seriously injured while cutting meat. In its         As an apprentice meat cutter, Milanes received on-the-job
first two issues, Kroger contends the trial court erred when it       training from a journeyman, or more experienced, meat cutter.
submitted Milanes's claim to the jury on a general negligence         Journeyman meat cutters were supposed to train apprentices
theory rather than a premises liability theory. We overrule           on the proper operation of the store's meat-cutting equipment,
these issues because (1) the Supreme Court of Texas has held          including the Biro brand bone-in band saw at issue in this
that a non-subscriber employer in Texas owes continuous,              appeal. The journeyman meat cutter was also expected to
non-delegable duties to its employees separate and distinct           train the apprentice in the safety measures that needed to be
from those owed to an invitee on the premises; and (2)                taken while using that equipment. Milanes eventually became
Milanes alleged, and legally sufficient evidence showed, that         a journeyman meat cutter.
Kroger breached those duties.
                                                                       *2 Milanes testified that he received a great deal of his meat-
Kroger asserts in its third and fourth issues that the evidence is    cutting training from Matt Anderson, a journeyman meat
legally and factually insufficient to support the jury's findings     cutter at the Kroger store in Montrose. While Milanes testified
that Kroger's negligence proximately caused Milanes's injury          that he believed Anderson did a good job training him, he also
and that he suffered past and future loss of earning capacity         testified that he was not taught by anyone at Kroger to use the
as a result of the injury. We overrule these issues because           band saw blade guard, which both the saw manufacturer and
the record on appeal contains legally and factually sufficient        the Occupational Safety and Health Administration (OSHA)
evidence of both proximate cause and loss of earning                  require to be used at all times while cutting meat with the
capacity.                                                             saw. 1 Indeed, Milanes testified that he was not even aware
                                                                      that the bone-in band saw had a blade guard; instead, he was
In its fifth issue, Kroger contends that the trial court abused its   taught the blade guard was a guide used to line the meat up
discretion when it admitted irrelevant photographs and videos         prior to cutting. As a result, Milanes never used the blade
that it argues were taken illegally. We overrule this issue           guard. Milanes also testified that he was never given Kroger's
because the photographs and videos were relevant, Milanes             Meat and Seafood Department Safety Manual or the Biro
took them while legally on Kroger's premises, and Kroger has          band saw's operator's manual. Milanes further testified that
not shown that he violated any law while doing so. Finally,           the bone-in saw manufacturer's warning labels were not on


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the Post Oak Kroger's saw during the time he worked at the         with the saw's blade tension. He went on to explain that if
store.                                                             the tension is off, it can make the blade dull more quickly.
                                                                   Quinones explained that a dull blade can cause the meat to
                                                                   jerk or suck the operator's hand into the blade.
B. Problems with Kroger's bone-in band saw were
reported prior to the injury.                                      Like Milanes, Quinones testified that he had never seen
Milanes and other meat cutters experienced problems with the       the operator's manual for the bone-in saw and management
bone-in saw prior to Milanes's injury. Milanes testified that      never told him that he had to read it before operating the
before he was injured, he reported to Kroger management:           saw. Quinones also confirmed that there were no warning
(1) the saw squealing loudly; (2) the blades dulling very          signs or labels on the bone-in saw. Quinones never observed
quickly, often within thirty or forty minutes of the blade being   inspectors performing regular maintenance on the saw.
changed; (3) the saw frequently catching the meat and sucking      Instead, Kroger maintenance personnel only came out when
it into the blade; (4) the saw being off-balance and shaking       a problem was reported. Quinones testified that he was not a
frequently; (5) the blade wobbling; and (6) the presence of a      trained maintenance person for the bone-in saw, but Kroger
lip on the saw table that frequently snagged the meat. Milanes     expected him to perform maintenance on the saw. Quinones
testified that if he told Adam Bell, another journeyman meat       admitted that he had adjusted the tension on the blade and that
cutter who also served as a relief meat market manager, about      he had also seen Bell working on the saw.
a problem, Bell would start tinkering with the saw in an effort
to fix the problem. Milanes saw Bell doing maintenance on           *3 Barnes confirmed many of the problems mentioned by
the saw at least twice a week.                                     Milanes and Quinones. Barnes testified that he saw Bell
                                                                   adjusting the tension on the blade and that Bell would
With respect to the saw blade dulling quickly, Milanes             grab pliers and attempt to fix any problem reported to him.
admitted he had the discretion to change the blade whenever        Bames also agreed with Quinones that there was no regular
he believed it was necessary. He went on to explain, however,      maintenance program for the store's band saws.
that Kroger management had asked the meat cutters to be
sparing with the blades and to make them last. The evidence        Bell testified that he experienced the blade popping off the
also revealed that there was a financial incentive for managers    saw prior to Milanes's injury. He went on to explain that, in his
to come in under budget. Milanes recounted an episode in           experience, the blade coming off a band saw was caused by
which he had used so many blades on the bone-in saw that the       either (1) an accumulation of bone dust and “goop” clogging
store's supply was exhausted, thereby angering management.
                                                                   the blade scrapers; 2 or (2) the blade tension not being set
                                                                   properly. Bell also testified that when a band saw makes a
In addition to Milanes, several other Kroger meat cutters
                                                                   loud noise, it means something is wrong with the saw. Bell
testified during the trial regarding the pre-accident condition
                                                                   further testified that he had never seen a complete list of steps
of the saw and Kroger's handling of maintenance issues.
                                                                   on how to clean the bone-in saw nor had he seen the operator's
These witnesses included William Quinones, Michael
                                                                   manual for the saw.
Barnes, and Bell. Quinones still worked as a Kroger meat
cutter at the time of trial. Kroger had terminated Bames prior
                                                                   Bell admitted that he was not certified by the saw
to trial for alleged dishonesty. Bell, as mentioned above, was a
                                                                   manufacturer to do maintenance on the saw. Bell testified
meat cutter and assistant meat market manager at the Post Oak
                                                                   that, as a journeyman meat cutter, he could change the saw's
Kroger. All three testified that there were frequent problems
                                                                   blade and also adjust the tension of the blade but was not
with the bone-in saw.
                                                                   authorized to do more than that. According to Bell, he took the
                                                                   saw apart to clean it, not perform maintenance on it. After he
Among the problems Quinones reported to Kroger
                                                                   was shown a photograph that appeared to show him working
management were (1) the blade tension was not right; (2)
                                                                   on the bone-in saw, Bell explained that a Kroger maintenance
the blade would occasionally pop off of the saw; (3) the saw
                                                                   person had told him that there was a nut on the saw that
table was wobbly; and (4) the blade dulled quickly, requiring
                                                                   if it became loose, it could cause the blade to get out of
frequent blade changes. According to Quinones, management
                                                                   adjustment and possibly even pop off. Bell explained that he
could not get the problems with the saw fixed before Milanes's
                                                                   was attempting to adjust that nut when the photograph was
injury. Quinones also explained that a band saw making a
loud squealing noise can indicate that there is a problem


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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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taken. Bell then denied that he was doing anything improper        there. At the time of trial, Milanes was still experiencing pain
when the photograph was taken.                                     severe enough that he had to take pain medication frequently.

Bell testified that he did not recall any particular problems      Milanes reported that the loss of his fingers had adversely
with the bone-in saw prior to Milanes's injury. In Bell's          impacted his ability to participate in physical activities such
opinion, there would have to be something very wrong with a        as rock climbing, basketball, football, dodge ball, running
band saw for the blades to dull within thirty to forty minutes     with his dog, and lifting weights at the gym. The injury also
of being changed. Bell went on to state that dull blades make      affected his ability to drive his standard transmission car.
it more likely that the meat will jump while being cut. Bell       Milanes reported that he was unemployed at the time of trial.
also did not recall any feedback from Kroger management            Milanes testified that he had tried two different jobs after
about changing saw blades too frequently or any request to         he was terminated by Kroger, but he had been unsuccessful
keep costs down by not changing the blades out as often as a       because both jobs required manual dexterity. Milanes also
meat cutter believed necessary.                                    testified that all of his prior job experience had involved
                                                                   manual labor, and he could no longer do that type of work.

C. Milanes is seriously injured while cutting meat with            Milanes offered evidence that after the accident, he
the saw.                                                           experienced severe anxiety, depression, insomnia, as well as
At the time of his injury, Milanes had nearly completed his        nightmares about cutting off his fingers. Milanes twice went
eight-hour shift. Milanes testified that even though it was the    to the hospital thinking he was experiencing a heart attack.
end of his shift, he was not tired and was attending to the task   Doctors diagnosed both episodes as anxiety attacks, not heart
of cutting meat just as closely as he had been at the beginning    attacks. Milanes also experienced feelings of anger because
of his shift. Milanes also testified that he had the meat seated   the meat department personnel had complained that the bone-
properly on the saw table prior to the injury. Milanes observed    in saw was not working properly prior to his injury. Milanes
that the blade seemed pretty dull, but he decided not to change    eventually went to see a psychologist. Once Milanes returned
the blade. According to Milanes, the saw was making a loud         to work at the Post Oak Kroger, he experienced anxiety
noise that evening, and the table was still wobbly. Milanes        when he was around the meat saws. Milanes's psychologist
also noticed that the lip was still present on the saw table.      recommended that he be kept away from the saws while he
Milanes did not report any of these problems to management         was working.
that evening because he had reported them previously and the
problems were not addressed.
                                                                   D. Milanes returns to work on light duty and Kroger
 *4 Milanes was cutting a slab of meat into individual steaks      terminates his employment.
and was about three-fourths of the way through the slab.           Milanes was earning $16.69 per hour when he was injured.
Milanes is right-handed, and he estimated that his right hand      He returned to work several months after the accident at that
was about six inches from the blade before the accident            same wage. Milanes was initially placed on light duty in the
occurred. According to Milanes, the accident happened so fast      meat department when he returned to work. Milanes testified
that he did not see exactly what happened. Milanes testified       that he had no specific job duties while on light duty and
that he believed the dull blade caused the meat to jump, or flip   frequently spent his time doing little more than talking to
over, pulling the fingers of his right hand into the blade.        customers. Kroger began asking Milanes to resume cutting
                                                                   meat about a month after he returned to work but while he
The saw blade amputated parts of three fingers from                was still on light duty. Kroger made this request even though
Milanes's right hand. Milanes was taken to the hospital,           Milanes's doctors had ordered that he not be required to cut
where he underwent surgery to reattach the severed fingers.        meat at that point in time. Kroger asked Milanes to return to
The surgery was unsuccessful. Milanes later underwent              meat cutting several times.
two additional surgeries to cover exposed bone. After the
surgeries, Milanes underwent extensive physical therapy and        Milanes was to return to full duty with no restrictions on
testified that he continued to experience a great deal of pain     October 21, 2011. The day before, Bell, as he was leaving
in the areas of the amputations. Milanes also testified that he    work, instructed Milanes to clean the meat department cooler.
experienced the phantom sensation that his fingers were still      Milanes explained that an industrial hose and scalding hot
                                                                   water were used to clean the meat department cooler and


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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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saws. Milanes picked up the hose and noticed that it had a           Ryan obtained a copy of the operator's manual for the type of
leak. Milanes also saw that a new hose was laying nearby, so         bone-in saw used at the Post Oak Kroger. The manual states
he called the store manager, William Underwood, and asked            that the saw's blade guard must be kept within one-half inch
if Underwood could send someone to change out the hoses.             of the meat being cut. According to Ryan, if the blade guard
Underwood told Milanes to do it himself. Milanes testified           is adjusted to within one-half inch of the meat, and the meat
that he responded: “[C]an we have somebody else? And he              suddenly jumps or rolls, the guard will prevent the operator's
said, no. And before I could say anything else, he started           hand from contacting the blade. The manual also requires that
yelling and saying it's not a light duty issue. Anything—I           all warning labels be kept on the saw and replaced promptly
didn't even say that. And I said, well, it is kind of a light duty   if any come off. The manual also provides that if the saw is
issue. And he said I'll be back there in a minute.” Milanes          not working properly, it should be taken out of service until
testified that he did not believe the task of changing out the       it can be repaired.
hoses was within his job duties at that point in time. Milanes
explained that he was still on light duty, his hand was still        Ryan inspected the bone-in saw approximately one year after
hurting a great deal, and changing out the hose required the         Milanes's injury. Ryan discovered that most of the saw's
person to use pliers and a wrench, tasks he did not think he         warning labels were missing. 3 Ryan also found the blade
should do while his hand was still hurting.                          guard inoperable. He concluded the guard was frozen in
                                                                     position as a result of the accumulation of either rust or
 *5 When Underwood arrived, he asked Milanes why he                  “goop” generated by the sawing of meat. The blade guard
could not change out the hose. Milanes responded that he             finally moved when he applied fifty pounds of pressure. Ryan
was not going to do it. Milanes testified that he did not want       went on to testily that the guard remained very difficult to
to say in front of other employees that he was physically            move even after he broke it free.
unable to change out the hose, but that Underwood was
aware he was still on light duty. When Milanes continued             Ryan took several videos during his inspection. One video
to refuse to change out the hose, Underwood terminated               showed Bell cutting meat on the bone-in saw. Ryan observed
him for insubordination. Milanes admitted that he never told         that Bell did not use the blade guard while cutting the meat
Underwood in front of other people that he was physically            and that the guard was at least four inches above the level of
unable to perform the task of changing out the hose.                 the meat throughout the video.

                                                                     Ryan opined that if the bone-in saw's blade guard was not
E. Mechanical engineering experts testify regarding saw
                                                                     operational on the day of Milanes's injury, the saw should
operation and maintenance and the cause of Milanes's
                                                                     not have been in service. Ryan then opined that if the saw
injury.
                                                                     had been taken out of service, Milanes would not have been
At trial, mechanical engineer John Ryan testified on behalf
                                                                     injured. He went on to opine that if Kroger had followed
of Milanes. According to Ryan, OSHA standards require
                                                                     OSHA's standards and the requirements set forth in the
an employer to provide a safe workplace. OSHA also
                                                                     operator's manual, Milanes also would not have been injured.
has a general machine guarding standard that requires any
hazardous point of operation to be guarded. Additionally,
                                                                     Ryan examined the saw's blade tension during his inspection.
OSHA had specific standards for the operation of band saws
                                                                     Ryan found numerous scratch marks on the inside of the saw
such as the bone-in saw at issue in this case. OSHA, according
                                                                     housing. Ryan explained that the scratch marks indicate the
to Ryan, has three primary concerns with the operation of
                                                                     blade had popped off repeatedly and hit the metal housing.
band saws. First, OSHA requires that each band saw have an
                                                                     Ryan opined that this type of contact with the metal housing
operational blade guard. Second, OSHA emphasizes that a
                                                                     can dull the blade.
band saw's blade tension must be properly set. Finally, OSHA
requires employers to have a training program in place so
                                                                      *6 Ryan then explained that improper blade tension can
that employees learn how to operate a band saw safely. Ryan
                                                                     also cause a wandering cut. According to Ryan, when a blade
explained that blade tension is important for the safe operation
                                                                     is under-tensioned, it can cause the blade's cutting path to
of band saws because if the tension is not set correctly, the
                                                                     wander, which can lead to force being applied to the meat
blade can pop off the saw.
                                                                     sideways. This in turn increases the possibility that the saw
                                                                     will bind in the meat or the bone, causing the meat to be



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thrown or to roll. Ryan added that this possibility increases if   Grubbs next covered the importance of a regular inspection
the blade is also dull. Ryan calculated how much force this        and maintenance program for band saws. Grubbs testified it
saw would apply to an operator's hand and found it reasonable      is vital for an employer to have this type of program in place
that the saw could cause the meat to roll.                         because it ensures that the band saws are properly maintained.
                                                                   Grubbs agreed that it was Kroger's responsibility to keep the
Ryan next addressed the loud screeching sound the bone-in          bone-in saw in good working order. Grubbs also opined that
saw exhibited. Ryan opined that the noise was created by the       an important part of an inspection and maintenance program
blade rubbing at high speed against something, possibly the        is having properly trained and qualified personnel performing
blade scrapers. Blade scrapers are designed to remove meat         the inspections and maintenance on a band saw.
and other debris from the blade to keep the blade clean and
operational. Ryan testified that if the blade is rubbing against   Grubbs testified again during Kroger's case. Grubbs
one of the blade scrapers, it can cause the blade to dull at a     discovered during his investigation that it was the Kroger
faster rate than normal.                                           meat cutters' habit not to use the blade guard. Grubbs then
                                                                   opined that because a piece of meat may vary in its height,
Finally, Ryan discussed Kroger's maintenance records for the       it would be unrealistic, and ridiculous, to expect the meat
bone-in saw. Ryan asked to review all maintenance records          cutters to adjust the blade guard to within one half inch of the
for the saw. The first maintenance record he received from         top of the meat before each cut. Grubbs then opined that the
Kroger was dated six days after Milanes's injury. Ryan also        blade guard, even if it was nonoperational, was not a factor
saw other post-injury records but he never received any            in Milanes's accident. Finally, Grubbs testified that during his
maintenance records pre-dating the injury. Both Underwood,         inspection of the bone-in saw, he did not see any defects that
the Post Oak Kroger store manager, and the primary Kroger          would explain Milanes's accident.
employee charged with maintenance on the saw, Brent Nixon,
confirmed the lack of any pre-injury maintenance records for
the bone-in saw. Neither could explain the lack of records.        F. Kroger employees testify regarding saw operation and
                                                                   maintenance.
Milanes called Kroger's mechanical engineering expert,              *7 Kroger presented the testimony of several employees
Thomas Grubbs, to testily as an adverse witness. Grubbs            during the trial. Underwood, the top manager at the Post
inspected the bone-in saw two years after Milanes's injury.        Oak Kroger, was one of them. Underwood initially testified
According to Grubbs, a band saw's primary safeguard for            regarding Kroger's policies and procedures. When he was
operator safety is an adjustable blade guard. The blade guard      shown Kroger's Meat/Seafood Department Safety Manual,
on the bone-in saw was not operational when he inspected           Underwood could not locate the band saw maintenance and
it, however. Grubbs testified that a band saw should not be        inspection program. Underwood then admitted that he did not
operated if the blade guard is in the raised position.             know for sure whether Kroger had a written policy regarding
                                                                   inspection and maintenance of those saws. According to
Grubbs also testified regarding the importance of the              Underwood, only Kroger maintenance personnel should work
manufacturer's manual for the saw. Grubbs stated that anyone       on the band saws. Expanding on that, Underwood testified
operating a band saw should read the operator's manual             that the only thing meat cutters are authorized to do to the
first. He then testified that it is an employer's duty to train    saws is change the blades. If anything else needs attention,
employees who will use a band saw based on the operator's          the meat cutter should notify store management, who would
manual. Grubbs testified that he believed the operator's           then call in a service person.
manual for a band saw should be followed. He then opined
that anyone not adequately trained on the operation of a           Underwood denied being personally aware of any pre-
band saw should not use it. Grubbs also opined that it was         injury safety complaints about the bone-in saw, including
important for an employer using band saws to have written          complaints about the saw's blades dulling too fast.
safety policies and procedures in place. Grubbs explained that     Underwood explained that he was not the only manager at
written safety policies are important so employees know what       the store and the complaints could have been addressed to
they are supposed to do, and if they have questions, they know     another manager. Underwood then testified that there should
where to find the answers.                                         be a record of any maintenance or repairs performed on the
                                                                   store's saws. Underwood was unable to explain why there



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were no maintenance records for the bone-in saw predating          been certified by Biro to perform maintenance on Biro saws.
Milanes's injury.                                                  Nixon denied being aware of any problems with the bone-in
                                                                   saw before the accident. He also did not recall Milanes telling
Matthew Anderson is a journeyman meat cutter and Kroger            him that the bone-in saw needed repairs that were not being
meat market manager. Anderson worked at the Post Oak               made. Nixon also had no explanation for the lack of repair
Kroger about a year before Milanes's accident and therefore        and maintenance records predating Milanes's injury. Nixon
had no knowledge of the bone-in saw's condition on the day         insisted that maintenance was done on the bone-in saw prior
of Milanes's injury. Among other subjects, Anderson testified      to Milanes's injury and that there were records of that work.
about cutting meat with a band saw. According to Anderson,
a blade coming off the saw is not uncommon. Anderson                *8 Nixon was the facility engineer sent by Kroger to
had also experienced meat jumping or rolling. He explained         investigate the band saw several days after Milanes was
that meat jumping is unpredictable but certain circumstances,      injured. Nixon testified that he checked all aspects of the saw
such as dull blades, increase the possibility it will happen.      thoroughly, and as a final check he turned the saw on and
Anderson testified that for a blade to dull in thirty to forty     then beat the moving band saw blade with a broom to “make
minutes, “the saw would have to be so out of whack, [he did        sure [the blade was] not going to come off.” Nixon reported
not] even see how you could use it.” Anderson testified that       that the only problem his investigation revealed was the lip
if a band saw is making a loud noise, it is a sign that it needs   on the cutting table, which he repaired. Nixon testified he was
maintenance or repair.                                             unable to find anything that would explain the accident.

Anderson also testified regarding Kroger's policies and
procedures regarding band saws. He admitted that he was            G. The trial court signs a final judgment based on the
never shown the operator's manual for the bone-in saw and          jury's verdict in favor of Milanes.
did not know whether Kroger has a policy prohibiting workers       At the conclusion of the evidence, the trial court proposed to
from operating a meat saw without a blade guard in place.          submit the case to the jury on an ordinary negligence theory.
Anderson went on that when he trained people to operate a          Kroger objected to the trial court's proposed jury charge and
meat saw, he told them to use the blade guard and adjust it        argued the case should be submitted to the jury on a premises
above the meat for safety reasons. He then admitted, however,      liability theory. The trial court overruled Kroger's objection
that he would see people cutting meat without using the blade      and rejected its proposed premises liability question. The
guard.                                                             jury subsequently found Kroger liable and awarded Milanes
                                                                   damages totaling $1,093,440.89. The trial court, after
Javier Duran was the meat market manager for the Post Oak          crediting Kroger for the amount of medical expenses and
Kroger when Milanes's injury occurred. Duran testified that        wages it had already paid, signed a final judgment awarding
he was taught to use the blade guard during his training. Duran    Milanes $1,016,809.10 plus pre-judgment and post-judgment
then admitted that the blade guard was not really used by the      interest. This appeal followed.
meat cutters at the Post Oak Kroger but was just left in the
same position. Duran denied that Milanes ever complained
to him about the bone-in saw not working properly or about                                  ANALYSIS
the blades dulling too fast. He also denied telling Milanes
to be conservative when changing blades. Duran admitted            I. The jury was properly charged on a negligence theory
that meat jumps occasionally while it is being cut. According      of liability.
to Duran, meat jumping is generally unpredictable, but dull        Kroger argues in its first two issues that the trial court erred
blades make it more likely to occur. Duran went on to explain      when it submitted the case to the jury under a negligence
that a meat cutter should change the blade before it gets so       theory of liability. According to Kroger, it is “well-settled
dull that it will lead to meat jumping.                            that to state a general negligence claim [against a landowner],
                                                                   there must be affirmative contemporaneous conduct by the
Brent Nixon was the primary Kroger facility engineer               owner at the time of the incident which led to the plaintiff's
responsible for maintenance at the Post Oak Kroger at              injury.” Kroger contends that regardless of the theory of
the time Milanes was injured. Nixon's duties included              liability Milanes pled, Texas law and the evidence introduced
maintenance on the Biro band saw even though he had not            at trial established that the only duty it owed Milanes was



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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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that of a premises owner. As a result, Kroger argues Milanes    of a common law negligence claim.” Id. (citing Tex. Lab.
was limited to a premises liability theory of recovery. Given   Code Ann. § 406.033(d)); Amigos Meat Distributors, L.P.
that Milanes did not submit such a theory to the jury, Kroger   v. Elizondo, No. 01–10–00867–CV, 2011 WL 5026227, at
concludes it is entitled to a take-nothing judgment. We         *2 (Tex.App.–Houston [1st Dist.] Oct. 20, 2011, no pet)
disagree because under supreme court precedent, Kroger also     (mem.op.). To establish negligence, a party must establish a
owed Milanes duties of care as his employer.                    duty, a breach of that duty, and damages proximately caused
                                                                by the breach. Austin v. Kroger Texas, L.P., No. 14–0216,
                                                                ––– S.W.3d ––––, ––––, 2015 WL 3641066, at *12 (Tex.
A. Standard of review                                           June 12, 2015); Kroger Co. v. Elwood, 197 S.W.3d 793, 794
 [1] [2] A trial court must submit in its charge to the jury (Tex.2006).
all questions, instructions, and definitions that are raised by
the pleadings and the evidence. SeeTex. R. Civ. P. 278; E.I.     [8] [9] [10] The supreme court has held that employers
DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 56              in Texas owe certain continuous, non-delegable duties to
(Tex.App.–Houston [14th Dist.] 2014, pet. dism'd) (citing       their employees. Farley v. MM Cattle Co., 529 S.W.2d 751,
Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663–64          754 (Tex.1975) (abrogated on other grounds byParker v.
(Tex.1999)). The parties have the right to be judged by a       Highland Park, Inc., 565 S.W.2d 512 (Tex.1978)); seeAustin,
jury properly instructed in the law. Crown Life Ins. Co. v.     ––– S.W.3d at ––––, 2015 WL 3641066, at *15 (stating
Casteel, 22 S.W.3d 378, 388 (Tex.2000). The goal therefore,     that employer may owe duties to employee in addition to
is to submit to the jury the issues for decision logically,     those a landowner owes an invitee, including duties to train
simply, clearly, fairly, correctly, and completely. Roye, 447   and supervise). Among these are the duties to (1) furnish
S.W.3d at 56. To achieve this goal, trial courts enjoy broad    a reasonably safe place to work, (2) warn employees of
discretion so long as the charge is legally correct. Id. We     hazards of their employment that are not commonly known
review whether a challenged portion of a jury charge is legally or already appreciated, (3) supervise employees' activities,
correct using a de novo standard of review. Id. (citing St.     (4) hire competent co-employees, (5) furnish reasonably safe
Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex.2002)). In       instrumentalities with which to work, and (6) provide safety
making this determination, we examine the allegations and       regulations. Cent. Ready Mix Concrete Co. v. Islas, 228
proof introduced at trial. Oncor Electric Delivery Co., LLC v.  S.W.3d 649, 652 & n. 10 (Tex.2007); Farley, 529 S.W.2d at
Murillo, 449 S.W.3d 583, 592 (Tex.App.–Houston [1st Dist.]      754. An employer must also train employees in the safe use
2014, pet. filed) (en banc).                                    and handling of products and equipment used in and around
                                                                an employer's premises or facilities. Austin, ––– S.W.3d at
                                                                ––––, 2015 WL 3641066, at *15; Aleman v. Ben E. Keith Co.,
B. The pleadings and evidence support the trial court's
                                                                227 S.W.3d 304, 311 (Tex.App.–Houston [1st Dist.] 2007,
submission of the negligence theory rather than a
                                                                no pet.). An employer must exercise ordinary care, based on
premises theory.
                                                                standard negligence principles, in carrying out these duties.
 *9 [3] [4] [5] The Texas Workers' Compensation Act
                                                                Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996); Werner
permits private Texas employers to elect whether to subscribe
                                                                v. Colwell, 909 S.W.2d 866, 869 (Tex.1995); seeElwood, 197
to workers' compensation insurance. Tex. W. Oaks Hosp.,
                                                                S.W.3d at 794 (“An employer has a duty to use ordinary care
L.P. v. Williams, 371 S.W.3d 171, 186 (Tex.2012) (citing
                                                                in providing a safe workplace.”).
Tex. Lab. Code Ann. § 406.002(a) (West 2015)). If an
employer elects to subscribe, then its employees generally are
                                                                Milanes alleged and presented evidence during trial that
prohibited from suing it and must instead pursue their claims
                                                                Kroger breached some of these duties. This evidence
through an administrative agency. Id. In that administrative
                                                                includes, but is not limited to: the failure to provide
proceeding, employees need prove only that they were injured
                                                                reasonably safe equipment or instrumentalities necessary for
in the course and scope of their employment. Id.
                                                                the performance of Milanes's job; the failure to provide
                                                                safety regulations related to Milanes's work; and the failure
 [6]    [7] If an employer elects to be a non-subscriber to
                                                                to instruct or train employees in the safe use and handling
workers' compensation insurance, as Kroger has, then it is
                                                                of equipment—specifically, the Biro band saw. SeeAustin,
subject to suits at common law for damages, to which it can
                                                                ––– S.W.3d at ––––, 2015 WL 3641066, at *15. Milanes
raise only limited defenses. Id. In that situation, an employee
                                                                testified that he was never provided the operator's manual for
injured on the job must file suit and “prove the elements


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the Biro saw and he was not trained to use the adjustable            In its third issue, Kroger attacks the legal and factual
blade guard on the saw while cutting meat. In fact, he testified     sufficiency of the evidence of causation. In its fourth issue,
he was not even aware that the saw was equipped with a               Kroger contends Milanes introduced legally and factually
blade guard at all. In addition, both expert witnesses testified     insufficient evidence that his earning capacity was negatively
that the band saw should not be operated when the blade              impacted by his injury. We address each contention in turn.
guard is not used or operational. The evidence also includes
testimony from several witnesses that, prior to Milanes's
injury: (1) the bone-in saw had an inoperable blade guard;           A. Standard of review
(2) the saw was experiencing continuing problems such as              *11 When an appellant attacks the legal sufficiency of an
rapidly dulling blades and improper blade tension; and (3)           adverse finding on an issue on which it did not have the
Kroger was unable to fix the problems yet did not take the           burden of proof, the appellant must demonstrate on appeal
saw out of operation. Because Milanes pled and introduced            that there is no evidence to support the adverse finding.
legally sufficient evidence demonstrating Kroger negligently         Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC,
breached duties it owed to him as an employee, we conclude           403 S.W.3d 547, 550 (Tex.App.–Houston [14th Dist.] 2013,
that the trial court did not err when it submitted the negligence    no pet.). In conducting a legal sufficiency review, we must
theory of liability to the jury. Seeid. ––––, 2015 WL 3641066,       consider the evidence in the light most favorable to the
at *16 (“We therefore reject Kroger's argument that its lack of      appealed finding and indulge every reasonable inference
any negligent activity contemporaneous with [the plaintiff's         that supports it. Id. at 550–51 (citing City of Keller v.
injury] defeats [the plaintiff's] instrumentalities claim as a       Wilson, 168 S.W.3d 802, 821–22 (Tex.2005)). The evidence
matter of law.”); see alsoAmigos Meat Distributors, L.P.,            is legally sufficient if it would enable reasonable and fair-
2011 WL 5026227, at *3 (affirming judgment signed after              minded people to reach the decision under review. Id. at 551.
jury found non-subscribing employer negligent based on               This Court must credit favorable evidence if a reasonable
evidence that employer failed to provide operator's manual           trier of fact could, and disregard contrary evidence unless a
for Biro band saw to employee meat cutter and also failed to         reasonable trier of fact could not. Id. The trier of fact is the
train employee adequately on safe operation of saw).                 sole judge of the witnesses' credibility and the weight to be
                                                                     given their testimony. Id.
 *10 [11] The cases that Kroger cites in urging that
its only duty to Milanes was that of a premises owner                This Court may sustain a legal sufficiency (or no evidence)
do not change this analysis. Most of Kroger's cases are              issue only if the record reveals one of the following: (1) the
distinguishable because they did not involve the employer/           complete absence of evidence of a vital fact; (2) the court is
                                                                     barred by rules of law or evidence from giving weight to the
employee relationship. 4 The remainder of Kroger's cases
                                                                     only evidence offered to prove a vital fact; (3) the evidence
involved employees injured by a premises condition or by
                                                                     offered to prove a vital fact is no more than a scintilla; or (4)
conduct of a third party, neither of which is at issue. 5 Thus, as   the evidence established conclusively the opposite of the vital
Kroger conceded at oral argument, none of these cases control        fact. Id. Evidence that is so weak as to do no more than create
the outcome here. 6                                                  a mere surmise or suspicion that the fact exists is less than a
                                                                     scintilla. Id.
The supreme court recently confirmed that, “[a]s [plaintiff's]
employer, Kroger owed [him] duties in addition to its                In reviewing the factual sufficiency of the evidence, we must
premises-liability duty and its duty not to engage in negligent      examine the entire record, considering both the evidence
activities, including the duty to provide [the plaintiff] with       in favor of, and contrary to, the challenged findings.
necessary instrumentalities.” Austin, ––– S.W.3d at ––––,            SeeMaritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
2015 WL 3641066, at *15. We therefore overrule Kroger's              406–07 (Tex.1998); Cain v. Bain, 709 S.W.2d 175, 176
first two issues on appeal.                                          (Tex.1986). When a party challenges the factual sufficiency
                                                                     of the evidence supporting a finding for which it did not have
                                                                     the burden of proof, we may set aside the verdict only if it
II. Milanes introduced legally and factually sufficient              is so contrary to the overwhelming weight of the evidence
evidence that Kroger's negligence proximately caused                 as to be clearly wrong and unjust. SeeEllis, 971 S.W.2d at
Milanes's injuries and that he suffered lost earning                 407; Barnhart v. Morales, 459 S.W.3d 733, 745 (Tex.App.–
capacity as a result of those injuries.                              Houston [14th Dist.] 2015, no pet.). The amount of evidence


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necessary to affirm is far less than the amount necessary          the primary Kroger employee charged with maintaining and
to reverse a judgment. Barnhart, 459 S.W.3d at 745. This           repairing the store's bone-in band saw, was not certified
Court is not a factfinder. Id. (citing Ellis, 971 S.W.2d at        by the saw's manufacturer. The jury also heard evidence
407). Instead, the jury is the sole judge of the credibility of    that Bell, a meat cutter and relief meat market manager,
the witnesses and the weight to be given their testimony. Id.      frequently attempted to repair the saw when employees
We may not, therefore, pass upon the witnesses' credibility        reported problems to him despite Kroger's stated policy
or substitute our judgment for that of the jury, even if the       that the only thing meat cutters should do to a band saw
evidence would also support a different result. Id. If we          was change out a dull blade. Other evidence of improper
determine the evidence is factually insufficient, we must          maintenance includes the lack of maintenance records and
detail the evidence relevant to the issue and state in what        the meat cutters' testimony that problems with the saw were
regard the contrary evidence greatly outweighs the evidence        reported but never fixed.
in support of the verdict; we need not do so when affirming a
jury's verdict. Id. (citing Gonzalez v. McAllen Med. Ctr., Inc.,
                                                              Evidence of improper maintenance also included that the
195 S.W.3d 680, 681 (Tex.2006) (per curiam)).                 blade guard on the saw was inoperable and a loud noise
                                                              emanated from the saw. Witnesses testified the noise could
                                                              be caused by the blade hitting the blade scrapers or by
B. Sufficient evidence supports the jury's finding that       incorrect blade tension. Numerous witnesses testified that
Kroger's negligence proximately caused Milanes's              improper blade tension was a frequent problem encountered
injury.                                                       while using the bone-in saw. Ryan, Milanes's mechanical
 [12] [13] To prevail on a negligence claim, a plaintiff must engineering expert, testified that improper blade tension can
prove not only that the defendant breached a duty, but also   cause a wandering cut, increasing the possibility that the blade
that he sustained damages proximately caused by that breach.  will bind in the meat and cause the meat to roll.
Torres v. Tessier, 231 S.W.3d 60, 63 (Tex.App.–Houston
[14th Dist.] 2007, no pet.)(citing D. Houston, Inc. v. Love,  Evidence showed that if the tension on the blade is incorrect,
92 S.W.3d 450, 454 (Tex.2002)). Proximate cause consists      it can cause the blade to pop off, resulting in the blade
of two elements: cause in fact and foreseeability. Del Lago   hitting the metal saw housing. Witnesses testified that they
Partners, Inc., 307 S.W.3d at 774.                            had experienced the blade popping off this saw, as confirmed
                                                               by scratch marks on the inside of the housing. Ryan testified
 [14]    [15]      [16]    [17] Cause in fact means that thethat frequent contact with the metal saw housing results in the
defendant's act or omission was a substantial factor in        rapid dulling of the saw's blade. Witnesses also testified that
bringing about the injury, which would not otherwise have      the bone-in saw's blade dulled at a very rapid rate, often within
occurred. Western Investments, Inc. v. Urena, 162 S.W.3d       thirty to forty minutes of putting on a new blade. Kroger
547, 551 (Tex.2005). Cause in fact is not shown if the         witnesses confirmed that if the blades were dulling at such a
defendant's conduct did no more than furnish a condition       fast pace, something was very wrong with the saw.
that made the injury possible. Id. The second element of
proximate cause, foreseeability, requires that a person of     Every meat cutter who testified during the trial agreed that
ordinary intelligence should have anticipated the danger       meat sometimes jumps or rolls when it is being cut, and that
created by the negligent act or omission. Doe v. Boys Clubs of it is normally unpredictable when jumping or rolling will
Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). These    happen. Several testified, however, that the probability of
elements cannot be established by mere conjecture, guess,      meat jumping or rolling increases when the saw's blade is dull.
or speculation. Id. at 477. Proximate cause may, however,      Milanes himself testified he reported to Kroger management
be established by direct or circumstantial evidence and the    that the saw was frequently catching the meat and sucking it
reasonable inferences drawn from that evidence. Pilgrim's      into the blade. He also testified that he noticed the blade was
Pride Corp. v. Smoak, 134 S.W.3d 880, 889 (Tex.App.–           dull the day of his injury. Although Milanes had the discretion
Texarkana 2004, pet. denied) (citing McClure v. Allied Stores  to change out a dull blade when he deemed it necessary,
of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980)).               he testified that he was encouraged by store managers to be
                                                               conservative when using blades and that there was a financial
 *12 [18] As detailed in the background section, Milanes
                                                               incentive for those managers to come in under budget. 7
introduced evidence that Kroger failed to maintain the Biro
band saw properly. This includes evidence that Brent Nixon,


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 [19] Apart from improper maintenance and problems with            in the accident. Id. To support an award of damages for
blade tension and dulling, there was also evidence that Kroger     lost earning capacity, the plaintiff generally must introduce
failed to provide safety regulations and train Milanes and         evidence from which a jury may reasonably measure in
other employees properly on the safe operation of the Biro         monetary terms his earning capacity prior to injury. Id. at
band saw—particularly that the blade guard should be used at       435–436. Specific proof of actual earnings and income are
all times. Milanes testified that he was not even aware of the     evidence of lost earning capacity. Id. at 436.
existence of a blade guard and was not using it on the day of
his injury. There was also evidence that (1) it was the common     The jury heard evidence regarding Kroger's treatment of
practice of Kroger's meat cutters to not use the blade guard,      Milanes after his injury. This includes testimony that as soon
and (2) Kroger managers were aware of this practice but chose      as four weeks after his accident, Kroger began pressuring
to do nothing about it. Both expert witnesses testified that a     Milanes to return to work. The record also contains evidence
band saw should not be used without the blade guard. Ryan          that once Milanes returned, he was put back to work in
explained that the accident would not have occurred, and           the meat department in close proximity to the department's
Milanes would not have been injured, if the blade guard had        band saws despite his doctors' concerns that he should not
been used as required by the operator's manual.                    be required to work around the bone-in saw. The jury also
                                                                   heard Underwood's testimony that Milanes could possibly
 *13 For these reasons, we conclude there is legally and           transfer out of the meat department, but his pay rate would
factually sufficient evidence that Kroger's breach of the duties   be different if he did so. There was also evidence that once
to provide safe equipment and safety regulations and to train      Milanes returned to work on light duty, he had no specific job
employees in the safe use of equipment proximately caused          duties, but instead did little more than talk to customers.
Milanes's injury. We overrule Kroger's third issue on appeal.
                                                                   The jury heard the testimony addressing Milanes's
                                                                   termination, including Underwood's testimony that Milanes
C. Sufficient evidence shows that Milanes lost earning             was fired for insubordination when he refused to carry out
capacity as a result of his injury.                                an order to change the meat department hose. They also
 [20] In its third issue, Kroger contends Milanes presented heard Milanes's testimony that he was still on light duty and
legally and factually insufficient evidence of lost earning        experiencing pain in his right hand at that time. Although
capacity resulting from the amputation of three fingers on his     Milanes admitted that he did not tell Underwood that he was
dominant right hand while he was cutting meat with Kroger's        physically incapable of doing the task, he did tell Underwood
bone-in saw. In making this argument, Kroger points out that       that his refusal was a light duty issue. As the trier of fact
Milanes returned to work at the same Kroger store following        and sole judge of the credibility of the witnesses, the jury
his injury at the same rate of pay. It goes on to argue that       could have disbelieved Underwood's testimony that Milanes
the only reason he lost this job was the result of his own         was fired for insubordination, believed that Milanes refused
insubordination, and thus there is no evidence of lost earning     to change out the hose due to the condition of his injured
capacity as a result of his injury. Kroger makes no other          hand and sufficiently informed Underwood of that fact, and
argument about the insufficiency of the evidence supporting        found that the termination was related to Milanes's injury.
the jury's award of $151,744 in damages for lost earning           Kroger has not briefed any challenge to Milanes's testimony
capacity.                                                          regarding his post-termination inability to secure other long-
                                                                   term employment due to his injury, nor has it challenged
 [21] [22] [23] [24] [25] Loss or impairment of earning            the testimony of Milanes's expert economist quantifying
capacity is a recognized element of damages in a personal
                                                                   Milanes's loss of past and future earning capacity. 8
injury case. Strauss v. Cont'l Airlines, Inc., 67 S.W.3d 428,
435 (Tex.App.–Houston [14th Dist.] 2002, no pet.). Earning
                                                                    *14 We hold there is legally and factually sufficient
capacity has been defined as the ability and the fitness to
                                                                   evidence supporting the jury's finding that Milanes's loss of
work in gainful employment for any type of compensation,
                                                                   earning capacity resulted from his work-related injury. We
including salary, commissions, and other benefits. Id. at 435
                                                                   overrule Kroger's fourth issue on appeal.
n. 2. The plaintiff has the burden of proving loss of earning
capacity. Id. The measure of this type of damage is the
plaintiff's diminished earning power or earning capacity, in
the past or future, directly resulting from the injuries sustained


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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
2015 WL 4594098

                                                                     Milanes was injured. We address Kroger's second contention
III. The trial court did not abuse its discretion when               first.
it admitted Milanes's post-accident photographs and
videos into evidence.
Kroger asserts in its fifth issue that the trial court abused its    1. The challenged photographs and videos were relevant.
discretion when it admitted into evidence five photographs            *15 [28] Relevant evidence is evidence that has a tendency
(Plaintiff's Exhibits 5, 6, and 7) and three videos (Plaintiff's     to make the existence of any fact that is of consequence
Exhibits 10, 12, and 13) taken by Milanes after he returned          to the determination of the action more probable or less
to work. 9 According to Kroger, the trial court should have          probable than it would be without the evidence. Tex. R. Evid.
excluded the photographs and videos because they were taken          401. Relevant evidence is generally admissible, irrelevant
illegally and also because they were not relevant given that         evidence is generally inadmissible. Id. at 402. Facts existing
all were taken after the accident.                                   both before and after an event in controversy may be relevant
                                                                     to establishing the cause of that event. City of Houston v.
                                                                     Leach, 819 S.W.2d 185, 191 (Tex.App.–Houston [14th Dist.]
A. Standard of review                                                1991, no writ).
 [26] The decision to admit or exclude evidence lies within
the sound discretion of the trial court. Bay Area Healthcare          [29]      [30]    [31]     [32]     [33] Generally, pictures or
Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007). A             photographs relevant to any issue in a case are admissible.
trial court exceeds its discretion if it acts in an arbitrary or     Huckaby v. A.G. Perry & Sons, Inc., 20 S.W.3d 194, 209
unreasonable manner or without reference to guiding rules            (Tex.App.–Texarkana 2000, pet. denied). When a photograph
or principles. Barnhart, 459 S.W.3d at 742 (citing Bowie             or video portrays facts relevant to an issue, it is admissible
Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002)). When            if verified by a witness as being a correct representation of
reviewing matters committed to the trial court's discretion, a       the facts. Cheek v. Zalta, 693 S.W.2d 632, 635 (Tex.App.–
reviewing court may not substitute its own judgment for that         Houston [14th Dist.] 1985, no writ). The verifying witness
of the trial court. Id. Thus, the question is not whether this       must know the object involved and be able to state that the
court would have admitted the evidence. Rather, an appellate         photograph or video correctly represents it. Id. The fact that
court will uphold the trial court's evidentiary ruling if there is   the scene or the object portrayed in the photograph or video
any legitimate basis for the ruling, even if that ground was not     has changed since the time of the event in question in the
raised in the trial court. Id. Therefore, we examine all bases       litigation does not prevent the admission of the photograph
for the trial court's decision that are suggested by the record      or video into evidence if the changes are explained in such
or urged by the parties. Id.                                         a manner that the photograph or video will help the jury in
                                                                     understanding the nature of the condition at the time of the
 [27] A party seeking to reverse a judgment based on                 event at issue. Id. Indeed, the parties' experts inspected the
evidentiary error must prove that the error probably resulted        saw well after Milanes took the challenged photos and videos,
in rendition of an improper judgment, which usually requires         and photos and videos from expert Ryan's inspection were
the complaining party to show that the judgment turns on the         also introduced into evidence. A dispute as to the accuracy of
particular evidence excluded or admitted. Id. To determine           some part of the photograph or video usually goes only to the
whether evidentiary error probably resulted in the rendition of      weight of the evidence, not to its admissibility. See id.; see
an improper judgment, an appellate court reviews the entire          alsoGarza v. Cole, 753 S.W.2d 245 247 (Tex.App.–Houston
record. Id. (citing Interstate Northborough P'ship v. State, 66      [14th Dist.] 1987, writ ref'd n.r.e.) (stating that conditions
S.W.3d 213, 220 (Tex.2001)).                                         shown in video need not be identical to those at time of event
                                                                     in question for video to be admissible into evidence).

B. Kroger has not shown an abuse of discretion in                     [34] Plaintiff's Exhibit 5 is a photograph of the Post Oak
admitting the challenged photographs and videos.                     Kroger's bone-in saw wrapped in clear plastic. Plaintiff's
Kroger makes two separate arguments in its fifth issue. First,       Exhibit 6 contains three photographs of the blade cleaners on
it asserts that the challenged photographs and videos should         the same bone-in saw. William Quintero, a journeyman meat
have been excluded because they were obtained by illegal             cutter at the Post Oak Kroger, testified that these photographs
means. Second, Kroger contends the photographs and videos            fairly and accurately depicted the bone-in saw Milanes was
were not relevant because they were taken months after               using. Plaintiff's Exhibit 7 is another photograph of the Post


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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
2015 WL 4594098

Oak Kroger's bone-in saw. Milanes testified that he took          obtained” objection and admitted the challenged photographs
the photograph and that it fairly and accurately depicted the     and videos into evidence. Having rejected each argument
bone-in saw he used. Because witnesses testified that the         raised by Kroger in its fifth issue, we overrule that issue.
challenged photographs accurately depicted the bone-in saw,
we conclude that the trial court did not abuse its discretion
when it overruled Kroger's relevance objections and admitted      IV. Kroger has not shown that it was harmed by the trial
Exhibits 5, 6, and 7 into evidence. SeeCheek, 693 S.W.2d at       court's alleged failure to intervene to remedy perceived
635.                                                              juror misconduct.
                                                                   [37] In its sixth issue, Kroger contends the trial court abused
 [35] Plaintiff's Exhibit 10 is a 28–second video showing the     its discretion when it refused to grant Kroger a new trial based
bone-in saw running with a loud noise emanating from it.          on the allegation that the trial court failed to intervene timely
Milanes testified that Exhibit 10 portrayed the bone-in saw       to correct potential juror misconduct. We conclude Kroger is
and that the noise heard on the video was the same as the         not entitled to a new trial because it has not demonstrated it
noise the saw was making when he was injured. Plaintiff's         was harmed as a result of any alleged failure to intervene by
Exhibit 12 is another brief video. Milanes, who took the          the trial court.
video, testified that it showed a boneless band saw at the
Post Oak Kroger, which was running correctly. The saw             Kroger's motion for new trial attached an affidavit from one
shown in Exhibit 12 did not emit a loud noise while it was        of the jurors in the case. In the affidavit, the complaining
running. Plaintiff's Exhibit 13 is a 14–second video of a non-    juror stated that after the jury began its deliberations, she
operational bone-in saw at the Post Oak Kroger. The video         came to believe that some other members of the jury were
shows that the blade had popped off the saw. On the video,        violating instructions contained in the court's charge. The
Milanes says: “once again the saw is broken in the same           complaining juror alleged that, during the jury's deliberations,
day they said they fixed it.” Milanes testified that the videos   an attorney member of the jury offered his own definitions
portrayed the same circumstances that were present before         of legal phrases and words derived from his own personal
he was injured and they would be helpful to the jury during       experience as an attorney. The complaining juror also alleged
his testimony. We conclude that the trial court did not abuse     that a second juror contributed her thoughts based on her
its discretion when it overruled Kroger's relevance objections    personal experience as a legal assistant. The complaining
and admitted the three videos into evidence. SeeCheek, 693        juror did not allege that any outside influence was brought to
S.W.2d at 635.                                                    bear on the jurors during their deliberations. The complaining
                                                                  juror stated that she asked, through the bailiff, to speak with
                                                                  the trial judge about her concerns; however, the trial judge
2. The challenged photographs and videos were not                 did not speak with the juror during the remainder of the jury's
illegally obtained.                                               deliberations.
 *16 [36] Kroger also objected to the admission of the
photographs and videos based on its contention that they were     The jury reached and delivered its 10–2 verdict in favor
all taken illegally. Kroger cites no authority supporting its     of Milanes. The complaining juror, believing that the
position. Cf.Tex. Civ. Prac. & Rem. Code Ann. § 123.002           misconduct she perceived had impacted the jury's verdict,
(West 2011) (creating a civil cause of action against a person    alleged that she again asked to speak with the trial judge.
who intercepts another person's communication); Tex. Code         According to the complaining juror, the trial judge was in
Crim. Proc. Ann. art. 38.23 (West 2005) (providing that no        court at the time, and the juror was told she could wait until
evidence obtained in violation of either the constitution or      he was finished to speak with him. The complaining juror
laws of the United States or the State of Texas “shall be         decided to leave the courthouse before the trial judge was able
admitted in evidence against the accused on the trial of any      to speak with her, however.
criminal case.”). Further, we find nothing in the record to
suggest that Milanes committed either the offense of criminal     During the hearing on Kroger's motion for new trial, the
trespass, Tex. Penal Code Ann. § 30.05 (West Supp.2014),          trial judge stated that he had addressed with the parties a
or the offense of improper photography or visual recording.       prior complaint made by this juror following jury selection,
Id. § 21.15 (West 2011). We hold that the trial court did         but that he was not provided notice of the juror's alleged
not abuse its discretion when it overruled Kroger's “illegally    request during deliberations. The trial judge found the juror's
                                                                  allegations not credible and denied the motion for new trial.


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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
2015 WL 4594098

                                                                      (prohibiting a juror from testifying about jury's deliberations
                                                                      unless allegation involves outside influence). Kroger admits
 [38] Kroger argues it is entitled to a new trial based on
                                                                      there was no outside influence brought to bear on the jury.
judicial misconduct: specifically, the trial court's failure to
investigate the complaining juror's allegations that members
                                                                      Instead, Kroger argues that certain jurors violated the trial
of the jury had violated the trial court's instructions during
                                                                      court's instructions during the jury's internal deliberations.
their deliberations. To reverse a judgment on the basis of
                                                                      To substantiate this claim, Kroger offers only the affidavit
judicial misconduct, a reviewing court must conclude both
                                                                      testimony of a member of the jury regarding deliberations
that judicial impropriety occurred and that the complaining
party suffered harm. SeeSilcott v. Oglesby, 721 S.W.2d 290,           —evidence that Kroger is prohibited from using. 10 See
293 (Tex.1986); Markowitz v. Markowitz, 118 S.W.3d 82, 86             id. Because we (like the trial court) cannot consider the
(Tex.App.–Houston [14th Dist.] 2003, pet. denied). Because            only evidence offered by Kroger to establish it was harmed
we conclude that Kroger has not shown it was harmed as a              by the judge's alleged misconduct in failing to address the
result of the trial court's alleged failure to intervene to correct   jurors' perceived violations during deliberations, we conclude
the perceived juror misconduct, we need not decide whether            Kroger has failed to show harm. Golden Eagle Archery, Inc.
any judicial impropriety occurred, and we therefore express           v. Jackson, 24 S.W.3d 362, 370 (Tex.2000) (holding that rules
no view on that issue.                                                prevent juror from testifying that jury discussed improper
                                                                      matters during deliberations). Thus, the trial court did not
 *17 Given that the complaining juror's allegations did not           abuse its discretion in denying Kroger's motion for new trial.
involve outside influence, Kroger's attempt to show harm              We overrule Kroger's sixth issue.
through an examination of the jury's discussions during its
deliberations is prohibited by both Rule 327(b) of the Texas
Rules of Civil Procedure and Rule 606 of the Texas Rules                                    CONCLUSION
of Evidence. SeeTex. R. Civ. P. 327(b) (“A juror may not
testify as to any matter or statement occurring during the            Having overruled each of the issues Kroger raised in this
course of the jury's deliberations or to the effect of anything       appeal, we affirm the trial court's judgment.
upon his or any other juror's mind or emotions as influencing
him to assent or dissent from the verdict concerning his
mental processes in connection therewith, except that a juror         All Citations
may testily whether any outside influence was improperly
                                                                      --- S.W.3d ----, 2015 WL 4594098
brought to bear upon any juror.”); Tex. R. Evid. 606(b)


Footnotes
1       Milanes testified that he did not learn that the band saw was equipped with a blade guard until after his injury. Evidence
        showed that a meat cutter was required to keep the blade guard set to one-half inch above the level of the meat being
        cut at all times.
2       There are two sets of blade scrapers on the bone-in saw, one above the cutting table and one below. Each set consists
        of two pieces of metal attached to the saw housing, one on either side of the revolving blade. The blade scrapers are
        designed to remove from the blade material created by the cutting of the meat. Bell admitted that the blade scrapers had
        never been changed during his time at the Post Oak Kroger.
3       Ryan explained that he found a couple of warnings still attached to the motor.
4       See, e.g.,Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex.2010) (involving suit filed by hotel guest, not
        employee); In re Texas Dept. of Transp., 218 S.W.3d 74, 75 (Tex.2007) (involving lawsuit against State of Texas arising
        out of car wreck); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 526 (Tex.1997) (“In this case, we consider
        the liability of a general contractor and its on-site representative for injuries to an independent contractor's employee.”);
        Dallas Market Center Development, Co. v. Liedeker, 958 S.W.2d 382, 383 (Tex.1997) (concerning lawsuit filed by delivery
        person injured while loading flowers onto hotel's elevator) (overruled on other grounds byTorrington Co. v. Stutzman, 46
        S.W.3d 829 (Tex.2000)); Keetch v. The Kroger Co., 845 S.W.2d 262, 263 (Tex.1992) (customer, not employee, filed suit
        for injury sustained on defendant's premises); Foodtown v. Tanguma, No. 01–11–00047–CV, slip op. at 2 (Tex.App.–
        Houston [1st Dist.] Dec. 22, 2011, no pet.)(same).




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Kroger Company v. Milanes, --- S.W.3d ---- (2015)
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5      See, e.g.,Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 240 (Tex.1955) (employee injured by
       premises condition rather than instrumentality) (overruled byAustin v. Kroger Texas, L.P., No. 14–0216, ––– S.W.3d
       ––––, ––––, 2015 WL 3641066, at *12 (Tex. June 12, 2015)); Barton v. Whataburger, Inc., 276 S.W.3d 456, 466–67
       (Tex.App.–Houston [1st Dist.] 2008, pet. denied) (plaintiff-employee victimized by third-party criminal act on employer's
       premises); Allen v. Connolly, 158 S.W.3d 61, 63 (Tex.App.–Houston [14th Dist.] 2005, no pet.)(same).
6      During oral argument, Kroger was unable to identify a case dictating the outcome it seeks in its first issue. Kroger instead
       asked this Court to change the law. This we cannot do because changing higher-court precedent is not the function of an
       intermediate court of appeals. SeeDeutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex.App.–Houston
       [14th Dist.] 2002, no pet.)(“we must follow the Texas Supreme Court's expressions of the law and leave changes in the
       application of common-law rules to that higher authority”); see alsoEntergy Gulf States, Inc. v. Summers, 282 S.W.3d
       433, 476 (Tex.2009) (Willet, J., concurring) (“Judges have no authority to second-guess the myriad policy judgments
       codified in the Workers' Compensation Act”).
7      A non-subscribing employer may not assert any negligence by an employee as a defense. SeeTex. Lab. Code Ann. §
       406.033(a) (West 2015).
8      Milanes testified regarding his desire to work, his inability to do manual-labor jobs like those he had been trained to
       perform, and his departure from a job pulling parts at a warehouse because he kept dropping the parts. His expert, Dr.
       Donald Huddle, testified regarding Milanes's loss of his Kroger salary ($16.69 per hour) and benefits up to the time of
       trial. He also testified regarding the present value of the salary and benefits Milanes would lose over his expected future
       work life, assuming that Milanes would be able to find employment at a lower salary. The jury awarded approximately
       the amount Dr. Huddle calculated for past lost earning capacity, and less than half of the lowest amount he calculated
       for future lost earning capacity.
9      In a letter brief filed following oral argument, Kroger identified a sixth photograph, Plaintiff's Exhibit 8, as a photograph
       it was challenging the admission of on appeal. Kroger did not, however, object to the admission of Exhibit 8 during
       trial. Kroger therefore has not preserved its complaint regarding the admission of this photograph for appellate review.
       Tex.R.App. P. 33.1; Grace Interest, L.L.C. v. Wallis State Bank, 431 S.W.3d 110, 122 (Tex.App.–Houston [14th Dist.]
       2013, pet. denied).
10     Of course, the juror's allegation that she asked the bailiff for an opportunity to speak to the trial judge about her concerns
       regarding deliberations is not itself evidence of matter occurring during deliberations, though the trial judge found her
       allegations not credible. Yet even if we assumed for the sake of argument that the request was made and the trial court
       should have pursued it, the court would have learned no more than the allegations in the juror's affidavit regarding what
       occurred in deliberations, which “cannot form the basis of a motion for new trial.” In re Zimmer, Inc., 451 S.W.3d 893,
       897 n. 1 (Tex.App.–Dallas 2014, orig. proceeding).


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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                    APPENDIX 139 20
Lawrence v. Coastal Marine Service of Texas, Inc., 983 S.W.2d 757 (1997)




                                                                 [3]   Appeal and Error
                                                                           Effect of Evidence and Inferences
                                                                       Therefrom on Direction of Verdict
                                                                       In reviewing a directed verdict, appellate court
                                                                       must consider all evidence in the light most
                                                                       favorable to the party against whom the verdict
                                                                       was directed, disregarding all contrary evidence
                                                                       and inferences.

                                                                       1 Cases that cite this headnote


                                                                 [4]   Appeal and Error
                                                                           Appeal from Ruling on Motion to Direct
Survivors of independent contractor's employee, who was                Verdict
killed in a crane accident, brought negligence and premises            In reviewing a directed verdict, appellate court
liability suit against crane owner and contractor. The 136th           must determine if there is any probative evidence
District Court, Jefferson County, Milton Gunn Shuffield,               to raise a fact issue.
J., directed partial verdict against survivors on premises
liability claim, and entered judgment on jury verdict against          Cases that cite this headnote
survivors on negligence claim. Survivors appealed. The Court
of Appeals, Ron Carr, J. (Assigned), held that: (1) question
                                                                 [5]   Appeal and Error
of whether crane owner in fact retained control over the crane
                                                                           Appeal from Ruling on Motion to Direct
was for the jury, but (2) jury instruction on negligence was
                                                                       Verdict
not an improper comment on the weight of the evidence or an
advisement to the jury of the effect of a prior ruling for the         Directed verdict will be held improper if there is
owner on a premises liability claim.                                   any evidence in the record of probative force on
                                                                       any theory of recovery.
Reversed and remanded in part, and affirmed in part.
                                                                       Cases that cite this headnote


                                                                 [6]   Negligence
 West Headnotes (18)                                                       Reasonably Safe or Unreasonably
                                                                       Dangerous Conditions
 [1]    Trial                                                          Generally, a premises owner has a duty to use
             “No” Evidence; Total Failure of Proof                     reasonable care to keep the premises under his
        Party is entitled to a directed verdict only when              control in a safe condition.
        there is no evidence to support a material issue.
                                                                       Cases that cite this headnote
        Cases that cite this headnote
                                                                 [7]   Negligence
 [2]    Trial                                                              Persons Working on Property
             Inferences from Evidence                                  If a premises owner retains/hires an independent
        Trial court should direct a verdict only when                  contractor to perform a specific task on the
        reasonable minds can draw only one conclusion                  premises, the independent contractor will then
        from the evidence.                                             owe a duty to use reasonable care to keep the
                                                                       premises under his control in a safe condition.
        Cases that cite this headnote




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Lawrence v. Coastal Marine Service of Texas, Inc., 983 S.W.2d 757 (1997)


                                                                      regarding the crane if given by owner, from
        Cases that cite this headnote                                 which it could be inferred that their course of
                                                                      business dealings gave owner premises control.
 [8]    Negligence
                                                                      Cases that cite this headnote
            Persons Working on Property
        General rule is that an owner or occupier does not
        have a duty to see that an independent contractor      [12]   Negligence
        performs work in a safe manner.                                   Accidents and Injuries in General
                                                                      Fact that crane owner did not exercise its alleged
        Cases that cite this headnote                                 control over independent contractor, whose
                                                                      employee was killed in a crane accident, did not
 [9]    Negligence                                                    release owner from premises liability regarding
            Persons Working on Property                               the employee's death; independent contractor's
                                                                      employees relied on owner to provide good
        Premises owner may be liable when it retains
                                                                      crane, and owner had responsibility to ensure
        the right to control some part of independent
                                                                      safe and suitable crane and had basic duty
        contractor's work, but fails to exercise the
                                                                      to make premises safe for its invitees, which
        retained control with reasonable care; control, or
                                                                      included duty to warn of dangerous conditions
        the right to control, when resting with the owner,
                                                                      and hidden defect.
        is paramount to recovery.
                                                                      Cases that cite this headnote
        Cases that cite this headnote

                                                               [13]   Trial
 [10]   Negligence
                                                                           Personal Injuries in General
            Persons Working on Property
                                                                      Jury instruction that, any negligence or gross
        For premises owner to be liable for failure to
                                                                      negligence of crane owner regarding death
        exercise with reasonable care retained control
                                                                      of independent contractor's employee in crane
        over work of independent contractor, right of
                                                                      accident had to “relate to the crane in question as
        control must be more than a general right to order
                                                                      the [crane owner] was not subject to any OSHA
        the work to start or stop, to inspect progress or
                                                                      regulations as they pertain to the premises or
        receive reports, but rather, right of control must
                                                                      safe operation of the project. Further, [owner]
        extend to the specific area of operation where
                                                                      had no duty to see that [independent contractor]
        the plaintiff's injury allegedly took place; general
                                                                      or its employees performed the work in a safe
        right to control the entire operation is not enough.
                                                                      fashion,” was not an improper comment on
        Cases that cite this headnote                                 the weight of the evidence; nothing in the
                                                                      instructions suggested that the regulations were
                                                                      inapplicable to the owner, to the extent the
 [11]   Negligence
                                                                      regulations applied to the crane itself.
            Liabilities Relating to Construction,
        Demolition and Repair                                         Cases that cite this headnote
        Question of whether crane owner in fact
        retained control over the crane, its operations,
                                                               [14]   Negligence
        movements, and conditions under which it could
                                                                          Miscellaneous Particular Cases
        operate was for the jury in premises liability
                                                                      Trial
        suit by survivors of independent contractor's
                                                                           Personal Injuries in General
        employee, who was killed in a crane accident on
        the crane owner's premises; record affirmatively              Jury instruction that, any negligence or gross
        reflected that contractor's employees would                   negligence of crane owner regarding death
        have followed owner's direction and instructions              of independent contractor's employee in crane


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        accident had to “relate to the crane in question as              jury was instructed that any negligence or gross
        the [crane owner] was not subject to any OSHA                    negligence of owner had to relate to the crane
        regulations as they pertain to the premises or                   because the owner was not subject to OSHA
        safe operation of the project. Further, [owner]                  regulations as they pertained to the premises or
        had no duty to see that [independent contractor]                 safe operation of the project, and that the owner
        or its employees performed the work in a safe                    had no duty to see that the contractor's employees
        fashion,” did not improperly advise the jury of                  performed the work safely. Rules App.Proc.,
        the effect of the trial court's prior ruling granting            Rule 81(b)(1) (Repealed).
        owner's motion for partial directed verdict on
        premises liability claim.                                        Cases that cite this headnote

        Cases that cite this headnote


 [15]   Trial                                                   Attorneys and Law Firms
             Definition or Explanation of Terms
                                                                *759 Tommy L. Yeates, Moore, Landrey, Garth, Jones,
        Trial court must submit explanatory instructions        Burmeister & Hulett, Beaumont, Richard G. Lewis, Boneau
        and definitions that will assist the jury in            & Lewis, Port Arthur, Ed W. Barton, Orange, for appellant.
        rendering a verdict.
                                                                Thomas W. Duesler, Harris, Lively & Duesler, Beaumont,
        Cases that cite this headnote                           Robert J. Killeen, Jr., McAlpine, Peuler, Cozad & Davie,
                                                                Houston, Thomas C. Fitzhuge, III, Fitzhugh & Thompson,
 [16]   Trial                                                   Houston, for appellee.
             Authority to Instruct Jury in General
                                                                Before BURGESS, STOVER and CARR, * JJ.
        Trial
             Definition of Terms
        Trial court has wide discretion to determine the
                                                                                           OPINION
        sufficiency of definitions and instructions.
                                                                RON CARR, Justice (Assigned).
        Cases that cite this headnote
                                                                This is an appeal of a take-nothing judgment in a negligence
 [17]   Trial                                                   and premises liability case brought by appellants after the
             Opinion or Belief of Judge as to Facts             death of John Ray Lawrence as the result of an accident
                                                                on a crane owned by appellee, Coastal Marine Service
        To be an improper direct comment on the weight
                                                                of Texas, Inc. [Coastal], which occurred while Lawrence
        of the evidence, a jury instruction must suggest
                                                                was working for Coastal's independent contractor, H.W.
        to the jury the trial judge's opinion.
                                                                Campbell Construction Company [Campbell] on Coastal's
        Cases that cite this headnote                           premises.

                                                                The case proceeded to trial against Campbell and Coastal
 [18]   Appeal and Error
                                                                after the trial court directed a partial verdict against appellants
           Invading Province of Jury
                                                                on the premises liability issue. The jury returned an adverse
        Survivors of independent contractor's employee,         verdict on the negligence issue and a take-nothing judgment
        who was killed in a crane accident, failed to show      was entered.
        that jury rendered an improper verdict as a result
        of a jury instruction challenged as an improper
                                                                Appellants now bring this appeal 1 with five (5) points of
        comment on the weight of the evidence and as
                                                                error contending that the trial court erred (1) in granting
        an advisement to the jury of the effect of a prior
                                                                Coastal's partial directed verdict [points of error one through
        ruling for the owner on a premises liability claim;



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Lawrence v. Coastal Marine Service of Texas, Inc., 983 S.W.2d 757 (1997)


three]; and, (2) by committing charge error [points four and
five].
                                                                                                Duty

                                                                     [6]   [7] Generally, a premises owner has a duty to use
                         The Accident                               reasonable care to keep the premises under his control in a
                                                                    safe condition. *760 Redinger v. Living, Inc., 689 S.W.2d
The record reflects that at the time of the accident Coastal's      415, 417 (Tex.1985). However, if a premises owner retains/
crane was being used by Campbell's employees to offload             hires an independent contractor to perform a specific task
skids on Coastal's property. After the skids were removed,          on the premises, the independent contractor will then owe a
the boon was moved to the rear of the crane by the operator,        duty to use reasonable care to keep the premises under his
at which time Lawrence's head was crushed resulting in his          control in a safe condition. Id. It is undisputed that at all
death. There was no barricading system to prevent access by         times material, Lawrence and his employer Campbell were
Lawrence to the rear “pinch point” area. This rear pinch point      independent contractors of Coastal.
area was not readily apparent to the operator in that the crane
had no mirrors and the operator had to step out of his cab to        [8] The general rule is that an owner or occupier does not
see this blind spot, nor did the crane have an operator's manual    have a duty to see that an independent contractor performs
in the cab.                                                         work in a safe manner. Id. Coastal can presume that an
                                                                    independent contractor, such as Campbell, will take proper
                                                                    care and precautions to assure the safety of its own employees.
                                                                    Agricultural Warehouse, Inc. v. Uvalle, 759 S.W.2d 691,
                      Premises Liability
                                                                    695 (Tex.App.—Dallas 1988), writ denied per curiam, 779
Appellants' first three (3) points of error contend collectively    S.W.2d 68 (Tex.1989).
that the trial court erred in granting Coastal's partial directed
verdict on the premises liability issue because there is some    [9] [10] An exception to this rule exists when an employer
evidence that Coastal in fact retained control over the crane inor general contractor retains control over the work performed
that the record affirmatively reflects that Campbell employees  by an independent contractor. Therefore, a premises owner,
would have followed Coastal's direction and instructions        such as Coastal, may be liable when it retains the right
regarding the crane if given by Coastal. We agree.              to control some part of the independent contractor's work,
                                                                but fails to exercise the retained control with reasonable
                                                                care. Redinger, 689 S.W.2d at 418. Control, or the right to
                                                                control, when resting with the landowner, then, is paramount
                   Directed Verdict Review                      to recovery. Exxon Corp. v. Quinn, 726 S.W.2d 17, 20
                                                                (Tex.1987). In this instance, the right of control must be more
 [1]    [2]    [3]    [4]   [5] A party is entitled to a directed
                                                                than a general right to order the work to start or stop, to
verdict only when there is no evidence to support a material
                                                                inspect progress or receive reports. Redinger, 689 S.W.2d at
issue. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295
                                                                418. The right of control must extend to the specific area of
(Tex.1983). The trial court should direct a verdict only when
                                                                operation where the plaintiff's injury allegedly took place. A
reasonable minds can draw only one conclusion from the
                                                                general right to control the entire operation is not enough.
evidence. Vance v. My Apartment Steak House, 677 S.W.2d
                                                                Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993).
480, 483 (Tex.1984). In reviewing a directed verdict, we
must consider all evidence in the light most favorable to the
                                                                In this case, it is undisputed that at the time of the accident,
party against whom the verdict was directed, disregarding
                                                                Lawrence was an employee of Campbell; Campbell was an
all contrary evidence and inferences. Porterfield v. Brinegar,
                                                                independent contractor of Coastal; and, that Coastal was the
719 S.W.2d 558, 559 (Tex.1986). The appellate court must
                                                                owner of the unsafe crane, which is the premises in question.
determine if there is any probative evidence to raise a fact
issue. Id. A directed verdict will be held improper if there is
any evidence in the record of probative force on any theory of
recovery. Jones v.Tarrant Utility Co., 638 S.W.2d 862, 865                               The Evidence
(Tex.1982).




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Lawrence v. Coastal Marine Service of Texas, Inc., 983 S.W.2d 757 (1997)


 [11] Robert Phillips was Campbell's supervisor at the site         which the crane operator could not have done in this case
and at the time of Lawrence's death. He testified he would          because it was not present in the cab. Wiethorn also opined
have complied with any instructions from Coastal regarding          that the crane was not properly maintained in that it had
movement of the crane. Campbell historically provided labor         numerous problems, including a throttle that did not operate
services for Coastal on Coastal's property. Phillips relied         properly, it ran at a constant speed that could not be adjusted,
on Coastal to provide a good crane. He would have put a             the boom angle indicator was defective, a brake did not
barricade tape around the danger area if Coastal had wanted         operate, outrigger controls had been taken out, and various
him to, and, he would have done whatever he had been                other problems. Wiethorn admitted that Coastal, the owner,
ordered to do by anybody at Coastal and he knew he was to           had the responsibility to have some type of inspection
do so at the time period that the death occurred.                   procedure set up to make sure a safe and suitable crane was
                                                                    provided to those who would use it on the premises. OSHA
Mr. Melvin was an employee and the human resources                  requires barricades in this particular setting. He opined that
manager of Campbell at the time of Lawrence's death. Solari         barricades are customary with both old and new cranes and
acknowledged there was absolutely no question in his mind           it does not take much to make a barricade system even for
that if Mr. Lyday, the President of Coastal, had asked him to       old cranes. He admitted that the cost of barricade tape is
have Phillips move the crane, that he would have complied;          nominal and basically less than a penny a foot. He testified
or if Mr. Lyday had asked him to not use the crane until it         that this is something Coastal could have kept on a permanent
had been inspected or brought up to industry standards with         basis is the cab for the purpose of warning someone. Had
all the manuals on board, etc., that he would have complied as      Wiethorn inspected the crane, he would have recommended
well; that the safe operation of cranes and instructions related    that a portable barricade travel with the crane.
thereto are important to the workmen and despite this he had
not even seen the operator's manual until after Lawrence's
death; that Mr. Lyday came to the yard in September of 1994
                                                                                               Conclusion
and that he came there after the fatality; and, that had Mr.
Lyday come out before the fatality and requested that the            [12] Viewing the above evidence in the light most favorable
crane be moved, that it would have been moved.                      to appellants, we conclude the above evidence is some
                                                                    evidence of probative force that raises a fact issue regarding
Campbell's expert, Jimmy Wiethorn, was a professional               Coastal's right to control the crane, its operations, movements,
engineer with experience in operating cranes. He testified that     and conditions under which it could operate while it was in
the crane was ragged, old, had seen quite an extensive life, and    Campbell's possession. The retention of the right to direct or
was pretty well beat up. He testified that the outrigger controls   to forbid the manner in which something is done suffices.
to the crane had been disengaged or removed from inside the         Redinger 689 S.W.2d at 418. The employees relied on Coastal
cabin, the acceleration pedal had been disconnected, the brake      to provide a good crane. Coastal had a responsibility to ensure
installed below the console did not operate, the gas throttle       a safe and suitable crane and had the basic duty to make the
did not operate, there was no operator's manual present, and,       premises safe for its invitees. Smith v. Henger, 148 Tex. 456,
that the operator's manual that should have been in the crane       226 S.W.2d 425, 431 (1950). This includes the duty to warn
contained specific instructions to avoid moving the crane until     of dangerous conditions and hidden defects. Id. In Abalos v.
all personnel are clear.                                            Oil Development Co. of Texas, 544 S.W.2d 627 (Tex.1976):
                                                                    the Supreme Court differentiated those cases in which the
 *761 Wiethorn further testified that there was no load chart
                                                                    defendant did not create the dangerous condition. In Abalos, 2
to comply with the American National Standards Institute
                                                                    the Supreme Court stated that although an owner does not
(ANSI) within the crane. The operator's manual was required
                                                                    have a duty to see that an independent contractor performs
by OSHA and ANSI to be kept in the cab at all times.
                                                                    work in a safe manner, the rule is inapplicable “if a party
According to Wiethorn, OSHA and ANSI standards applied
                                                                    negligently creates a dangerous situation, it then becomes
to this particular crane and Coastal could have easily provided
                                                                    his duty to do something about it ...” Id. at 633. Since the
the people who worked with the crane with the pertinent
                                                                    employees would have acquiesced to Coastal's right to direct
OSHA standards regarding its operation. He testified that
                                                                    the operations of the crane, it is fair to infer that their course of
proper operation of a crane calls for the operator to be
                                                                    business dealings gave Coastal premises control. The fact that
thoroughly conversant with the crane's operating manual,
                                                                    Coastal did not exercise the control does not release it from


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Lawrence v. Coastal Marine Service of Texas, Inc., 983 S.W.2d 757 (1997)


                                                                   of the project.” There is nothing in the Court's instructions to
liability. O'Neill v. Startex, 715 S.W.2d 802, 805 (Tex.App.
                                                                   suggest that OSHA regulations were inapplicable to Coastal,
—Austin 1986, no writ).
                                                                   to the extent the regulations applied to the crane itself.
Appellants' points of error one through three are sustained.
                                                                    [14] Appellants next contend that because Coastal was
Judgment is reversed and remanded as to appellants' premises
                                                                   a premises owner, the instruction somehow advised the
liability claim.
                                                                   jury of the effect of the trial court's prior ruling granting
                                                                   Coastal's motion for partial directed verdict, as stated above.
                                                                   We disagree with appellants' argument that the instruction
                    Alleged Charge Error                           effectively instructs the jury that Coastal is not subject to any
                                                                   OSHA standards and that the jury should not consider OSHA
 [13] The trial court submitted the following instruction
                                                                   standards and the experts' testimony based thereon.
preceding Question No. 1:

             In determining the negligence or                       [15]     [16]     [17] A trial court must submit explanatory
             gross negligence, if any, of Coastal                  instructions and definitions that will assist the jury in
             Marine Services of Texas, Inc., you                   rendering a verdict. Wichita County, Texas v. Hart, 917
             are instructed that such negligence                   S.W.2d 779, 783–84 (Tex.1996). This is exactly what was
             or gross negligence must relate to                    done in the case at bar. Additionally, the trial court has
             the crane in question as the premises                 wide discretion to determine the sufficiency of definitions
             owner, Coastal Marine Service of                      and instructions. Plainsman Trading Co. v. Crews, 898
             Texas, Inc. was not subject to any                    S.W.2d 786, 791 (Tex.1995). Although an instruction might
             OSHA regulations as they pertain to                   incidentally comment on the evidence, the Court's charge is
             the premises or safe operation of                     not objectionable on the ground that it incidentally constitutes
             the project. Further, as the premises                 a comment on the weight of the evidence when it is properly
             owner, Coastal Marine Service of                      a part of an instruction or definition. TEX.R. CIV. P. 277. To
             Texas, Inc. had no duty to see that the               be a direct comment on the weight of the evidence, the jury
             H.W. Campbell Construction *762                       instruction must suggest to the jury the trial judge's opinion.
             Company or its employees performed                    Texas Employers Ins. Ass'n v. Duree, 798 S.W.2d 406, 412
             the work in a safe fashion.                           (Tex.App.—Fort Worth 1990, writ denied). The instruction
                                                                   preceding Question No. 1 given the jury by the trial court
                                                                   gave no indication to the jury of any opinion of the trial court
Appellants' points of error four and five collectively contend
                                                                   regarding the facts of the case and therefore, it was proper.
that the trial court erred in submitting the above instruction
because it improperly commented on the weight of the
                                                                    [18] Furthermore, appellants have not shown that the
evidence [point four] and advised the jury of the effect of its
                                                                   submission of this instruction caused the jury to render an
prior ruling on Coastal's motion for partial directed verdict
                                                                   improper verdict. TEX.R.APP. P. 81(b)(1). This is especially
[point five]. We disagree.
                                                                   true in light of the fact that the appellants vigorously argued
                                                                   the applicability of OSHA standards to the crane itself during
Campbell's expert testified that certain OSHA standards apply
                                                                   closing arguments.
to the crane itself.

                                                                   Appellants' fourth and fifth points of error are denied.
We first conclude the instruction, as submitted, was not
                                                                   Judgment is affirmed as to appellants' negligence claim.
an improper comment on the weight of the evidence. The
instruction did not advise the jury that OSHA regulations do
                                                                   JUDGMENT IS REVERSED AND REMANDED IN PART
not apply to Coastal with regard to the crane and its operation.
                                                                   AND AFFIRMED IN PART.
The instruction is clear, in specifically instructing the jury
that any negligence on the part of Coastal must relate to
the crane in question. The second sentence of the instruction      All Citations
simply stated that Coastal was not subject to any OSHA
regulations “as they pertain to the premises or safe operation     983 S.W.2d 757


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Lawrence v. Coastal Marine Service of Texas, Inc., 983 S.W.2d 757 (1997)




Footnotes
*     The Honorable Ron Carr, sitting by assignment pursuant to TEX. GOV'T CODE ANN . § 74.003(b) (Vernon 1988).
1     After perfecting appeal, Campbell was dismissed from this appeal.
2     Redinger relies on Abalos to support its holding at 418.


End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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