                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-07-00064-CV

SSHG, LLC D/B/A SUPPORT SERVICES
HOLDINGS GROUP AND
LEGACY SUPPORT SERVICES, LTD.,
                                                           Appellants
v.

ERIC IAN LEWIS,
                                                           Appellee



                             From the 19th District Court
                              McLennan County, Texas
                             Trial Court No. 2005-1421-1


                         MEMORANDUM OPINION


          Eric Ian Lewis was injured on the job while using an electric hand planer and

sued his employer, SSHG, LLC, (SSG) a worker’s compensation nonsubscriber, for

negligence. A jury found for Lewis, and SSG appeals the adverse judgment. We will

affirm.

                               Background and Evidence

          Lewis worked as an assistant in the maintenance department of SSG, which runs
a technical support call center. On the day in question, Paul Woods, who was Lewis’s

supervisor and SSG’s Facilities Manager and had thirty-five years of experience in

construction and the operation of power tools, was on a medical leave of absence.

Lewis and a co-worker, Travis Allison, who was the “lead man” in the maintenance

department, were assembling work station cubicles. Both were in their early twenties.

Lewis and Allison realized that they needed smaller strips of wood for a portion of the

cubicle assembly, so Allison called Woods at home for guidance. Woods testified that

he initially said they could get new wood and cut it to the size needed, or they could

plane the wood that they had, but it was for Allison to decide what to do. He claimed,

however, that he ended the telephone conversation with the instruction to just cut new

wood. Woods said that when he concluded by telling Allison to just cut new wood, his

intent was that Allison and Lewis not use the planer because he thought that it was too

dangerous for them to use it without Woods’s having shown them how to use it

correctly and safely.

       Allison disagreed with Woods’s version of how the conversation ended,

testifying that Woods told him he could either cut new wood or plane down the wood

they already had. It was Allison’s understanding that it was up to him to decide which

way to do it. Woods and Allison agreed that Woods did not specifically say, “Don’t use

the planer.”

       Allison then went to Lewis and told him to use the hand planer on the wood

they had. The electric hand planer was Woods’s personal power tool that he had

brought to SSG. It was about forty years old and did not have instructions with it or

SSHG v. Lewis                                                                    Page 2
warnings on it. Lewis used the hand planer by grabbing it with his right hand, turning

it upside down so that the spinning blade was exposed, and pressing the wood against

it with his left hand to plane it. While using the planer this way, Lewis successfully

planed most of the wood, but toward the end the planer cut off the tips of Lewis’s left

thumb and index finger. Lewis was not sure exactly how the accident happened.

       Lewis had some prior carpentry experience; he had worked for about six months

at a cabinet shop where he cut out and built cabinets using power tools and saws, and

beginning around age fifteen or sixteen, he had occasionally assisted his stepfather, who

did homebuilding, remodeling, and add-ons. His stepfather had carpentry tools at

home and trained him how to use them correctly and safely. He also had worked for a

restoration company as a carpenter’s assistant, occasionally assisting the carpenters but

mostly working on the cleanup crew. Allison’s background was in heating and air

conditioning.

       Woods knew that Lewis had some carpentry experience, but he didn’t know the

details of it, as Lewis had not been hired with the idea of doing carpentry. Lewis had

never used a hand planer before; he had only used a table-mounted planer that wood is

fed into and comes out the other end, and hands are never near the blade. He had seen

Woods use the hand planer once before on long pieces of part of a door frame, and he

cannot recall if he also used it on that occasion. Allison said that he had previously seen

Lewis using the hand planer on a door frame and that Lewis had said he had used a

table-mounted planer. Lewis was generally familiar with the need to stabilize or brace

wood while working on it, and he knew not to get his hand near the sharp moving

SSHG v. Lewis                                                                        Page 3
blades of tools like saws and lawnmowers. He also admitted that the planer appeared

to require two hands; it had a knob and a grip with a trigger.

       Neither Allison nor Lewis was familiar with the need for a fixture or a jig to

stabilize the small pieces of wood that Lewis was planing. Other than holding the

planer with one hand and the wood with the other, Lewis could not think of any other

way to plane the small wood pieces. Allison concurred with Lewis’s method and did

not think it was dangerous or improper. After the fact, Lewis realized that using the

planer that way was dangerous.

       Woods testified that it was important to train employees in the use of tools.

Woods was familiar with using the planer and the danger of planing small pieces of

wood; he knew that a jig should be built and used to securely wedge small pieces of

wood before using the planer. Lewis said that had he known to use a jig, he could have

built one.

       The instructions for a brand new power hand planer that was demonstrated at

trial include the following as its first safety rule for planers:

       Secure the material being planed. Never hold it in your hand or across
       legs. Small workpiece must be adequately secured so the rotating planer
       blades will not pick it up during forward motion of the planer. Unstable
       support can cause the blades to bind causing loss of control and injury.

       The jury found that SSG’s negligence proximately caused Lewis’s injury and

awarded him approximately $65,000 in damages. The trial court credited SSG with

Lewis’s medical expenses ($11,509.85) that SSG had paid and entered a judgment for

Lewis in the amount of $55,371.09. The trial court denied SSG’s motion for jnov, which


SSHG v. Lewis                                                                     Page 4
asserted that it owed Lewis no duty to warn.

                                          Issues

       Seeking reversal and rendition of a take-nothing judgment, SSG asserts two

issues: (1) it had no duty to warn Lewis of the dangers in using the planer because

those dangers were obvious, commonly known, or already appreciated by Lewis; and

(2) there is no evidence that SSG’s negligence, if any, proximately caused the injury;

instead, the evidence conclusively shows that Lewis’s own negligence caused the injury.

                                              Duty

       SSG is a nonsubscriber to the Texas Workers’ Compensation Act. See TEX. LAB.

CODE ANN. § 406.002 (Vernon 2006) (“Except for public employers and as otherwise

provided by law, an employer may elect to obtain workers’ compensation insurance

coverage.”).    “In an action . . . against an employer who does not have workers’

compensation insurance coverage, the plaintiff must prove negligence of the employer

or of an agent or servant of the employer acting within the general scope of the agent's

or servant's employment.” Id. § 406.033(d) (Vernon 2006). The employee’s contributory

negligence is not a defense in nonsubscriber cases. Id. § 406.033(a)(1); see The Kroger Co.

v. Keng, 23 S.W.3d 347, 351-52 (Tex. 2000).

       To establish negligence, a party must establish a duty, a breach of that duty, and

damages proximately caused by the breach. The Kroger Co. v. Elwood, 197 S.W.3d 793,

794 (Tex. 2006). An employer has a duty to use ordinary care in providing a safe

workplace. Id.; 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

SSHG v. Lewis                                                                        Page 5
equipment or assistance. Elwood, 197 S.W.3d at 794; Farley, 529 S.W.2d at 754. An

employer must furnish safe machinery and instrumentalities that its employees are to

work with and must provide adequate assistance under the circumstances for the

performance of required work. See Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170,

186 n.45 (Tex. 2004); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); Farley, 529

S.W.2d at 754. An employer must also instruct employees in the safe use and handling

of products and equipment used in and around an employer’s premises or facilities,

and must adequately hire, train, and supervise employees. Patino v. Complete Tire, Inc.,

158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied); Castillo v. Gared, Inc., 1

S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

       An employer, however, is not an insurer of its employees’ safety. Elwood, 197

S.W.3d at 794.   An employer owes no duty to warn of hazards that are obvious,

commonly known, or already appreciated by the employee and owes no duty to

provide equipment or assistance that is unnecessary to the job’s safe performance. Id. at

794-95.

       As noted above, Woods testified that he did not want Allison and Lewis to use

the planer because he thought that it was too dangerous for them to use without his

having shown them how to use it correctly and safely. Specifically, he said:

       A. And I didn’t want them to use it without me showing them how,
       period.

       Q. Okay. So you thought it was too risky or too dangerous for them to
       use it?

       A. Yes, ma’am.

SSHG v. Lewis                                                                      Page 6
       Q. Okay. And you believe that that was something that they needed to
       understand, that you did not want them using it because it was too risky
       or too dangerous until you had a chance to give them instruction?

       A. Yes, ma’am.

Woods was familiar with the danger of planing small pieces of wood and knew that a

jig should be used to plane small pieces.

       The need to use a jig or some other bracing device to safely use an electric hand

planer on small pieces of wood, instead of holding the plane and the wood in one’s

hands, is not obvious. Nor is this safety need commonly known—an electric hand

planer is a specialized tool for woodworking. This case is thus unlike those relied on by

SSG. See Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 569 (Tex. 2007) (employer did not

have duty to warn employee about obvious danger in using ladder to climb over

delivery truck’s malfunctioning lift gate); Elwood, 197 S.W.3d at 795 (grocery store

employer had no duty to warn courtesy clerk of danger associated with placing hand in

doorjamb of automobile because that danger is common and obvious to anyone); see also

Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 313 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (employer did not have duty to warn employee about water on floor of trailer

because danger associated with water on floor commonly known and obvious to

everyone, and employee was aware of water on floor).

       SSG argues, however, that the planer’s dangers were obvious to and already

known by Lewis, pointing to his testimony that he was generally familiar with the need

to stabilize or brace wood while working on it, that he knew not to get his hand near


SSHG v. Lewis                                                                        Page 7
sharp moving blades, and that the planer appeared to require two hands. But Lewis’s

admissions do not affect our view of the critical issue in this case, which is that, as

Lewis testified to, he did not know what a jig was or that he needed to use a jig to plane

small pieces of wood with the hand planer—exactly what Woods would have shown

and instructed Lewis to do. Lewis did not know beforehand that he should not hold a

piece of wood and run it across the bottom of the electric hand planer. Indeed, Allison,

who was likewise untrained in the use of the planer, saw nothing wrong or unsafe with

how Lewis was using it and would have used it the same way, and Lewis had

successfully planed most of the wood before his injury. And while the evidence was

unclear, if Lewis had used this hand planer before, it was with Woods and on a long

part of a door frame. Based on this evidence, we hold that Lewis did not already

appreciate the danger of using an electric hand planer on a small piece of wood while

holding it, and SSG owed a duty to Lewis to train him in the safe use of the planer and

warn him of its danger. We overrule SSG’s first issue.

                              Sufficiency of the Evidence

       In reviewing the legal sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict, crediting favorable evidence if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not. City of

Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005).       There is legally insufficient

evidence or “no evidence” of a vital fact when (a) there is a complete absence of

evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (c) the evidence offered to

SSHG v. Lewis                                                                         Page 8
prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively

establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d

706, 711 (Tex. 1997).

       It is not disputed that SSG did not train Lewis in the safe use of the electric hand

planer with small pieces of wood and warn him about its dangers. Woods admitted

that, in the phone call with Allison, he did not specifically tell Allison not to use the

planer, although he admitted that he did not want Allison and Lewis to use it because it

was risky and dangerous and he had not shown them how to use it. The evidence in

this case would enable reasonable and fair-minded people to reach the verdict under

review. See City of Keller, 168 S.W.3d at 827. The evidence is therefore legally sufficient

to support the jury’s negligence finding. We overrule issue two.

                                       Conclusion

       Having overruled both issues, we affirm the trial court’s judgment.



                                                 BILL VANCE
                                                 Justice


Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
Affirmed
Opinion delivered and filed September 10, 2008
[CV06]




SSHG v. Lewis                                                                        Page 9
