Chief Justice                                                                                                        Clerk
James T.Worthen                                                                                                      Cathy S.Lusk

                                     Twelfth Court of Appeals
Justices                                                                                                             Chief Staff Attorney
Sam Griffith                                                                                                         Margaret Hussey
Diane DeVasto




           Wednesday, July 20, 2005


           Mr. T. Stefan Allen                                            Mr. Jeffrey M. Lust
           203 South Street                                               Plaza Of The Americas S Tower
           Nacogdoches, TX 75961                                          600 N. Pearl
                                                                         Suite 1450, LB 156
                                                                         Dallas, TX 75201

           Mr. Randy L. Fairless                                         Mr. Robert T. Cain Jr.
           1456 First Colony Blvd.                                        Zeleskey, Cornelius, Hallmark, Roper & Hicks, LLP
           Sugar Land, TX 77479                                          P.O. Drawer 1728
                                                                          1616 S. Chestnut
                                                                         Lufkin,TX 75902-1728


           RE:      Case Number:                        12-04-00001-CV
                    Trial Court Case Number: C17,142-2001

           Style: Joe Collins
                    v.

                    J.E. Kingham Construction, et al

           Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
           numbered cause. Also enclosed is a copy of the court's judgment.

           Very truly yours,

           CATHY S. LUSK, CLERK



           By:
                 Katrina McClenny, ChiefDepuff Clerk

           CC:           Hon. Campbell Cox II
                         Hon. John Ovard
                         Ms. Donna Phillips




                 1517West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
 Serving Anderson, Cherokee, Gregg, Henderson, Hopkins, Houston, Kaufman, Nacogdoches, Panola, Rains, Rusk, Sabine, San Augustine, Shelby,
                                                Smith Upshur, Van Zandt and Wood Counties
                                                       www. 12thcoa.courts.state.tx.us
                                       NO. 12-04-00001-CV


                           IN THE COURT OF APPEALS


           TWELFTH COURT OF APPEALS DISTRICT


                                          TYLER, TEXAS


JOE COLLINS,                                               §    APPEAL FROM THE 145TH
APPELLANT


V.                                                         §     JUDICIAL DISTRICT COURT OF

J.E. KINGHAM CONSTRUCTION, ETAL,
APPELLEES                                                  §     NACOGDOCHES COUNTY, TEXAS


                                        MEMORANDUM OPINION

        Joe Collins appeals the jury verdict entered in favor ofAppellees J.E. Kingham Construction
("Kingham"), Ltd., Eastex Steel Erectors, Inc. d/b/a Eastex Steel Erectors ("Eastex"), and Tommy
Searcy, Individually, d/b/a Tommy's Welding Service, and d/b/a TWS Construction Services
("Searcy"). Collins raises three issues on appeal. We affirm.


                                                  Background

        Kingham was the general contractor on the Berry Direct construction proj ect in Nacogdoches,
Texas. Kingham subcontracted the steel work to Eastex, which, in turn, subcontracted a portion of
that work to Searcy. Kingham hired Collins as an electrical subcontractor. Collins was laying
electrical conduit in the northeast corner of the job site when two unsecured steel girders1 fell over
onto Collins and injured him.
        Collins filed suit against Kingham, Eastex, and Searcy seeking damages for premises


         As in the instant case, steel is ordinarily stacked vertically on its end because it can be damaged if it is laid
flat.
liability, negligent failure to control, and simple negligence. In the court's charge, the first question
read as follows:




                                                     Question No. 1

         Did those named below have a right to control the injury-causing activity and/or the defect-producing
         work on the premises?

         "Right to control requires that those named below exercised or retained some control over the manner
         in which the injury-causing activity and/or the defect-producing work was performed, other than the
         general right to order the work to start or stop or to inspect progress or receive reports.

         Answer "Yes" or "no" for each of the following:

         a.         J.E. Kingham Construction Company, Ltd.

         b.         Eastex Steel Erectors, Inc.



         The jury answered "no" with respect to both Kingham and Eastex. The remaining charge
questions were conditioned, either directly or indirectly, upon the jury's answer to Question 1.
Collins subsequently filed a motion for new trial, which the trial court denied. This appeal followed.


                                                        Hearsay

         In his first issue, Collins argues that the trial court improperly admitted hearsay testimony
over his timely objection. The pertinent testimony2 and Collins's objection are contained in the
following excerpt:


                    You just answered a question, and you said that you heard from one of the
                    electricians that these thingfs] happened this way and that way. I really didn't
                    understand that answer.


                    Well, it's simple of it. I draw near to that person because he was a Hispanic person,
                    and I've asked him what happened, and the ambulance have already been there and
                    everything.

                    Okay. But my question is, first of all, you were able to communicate with this other
                    fellow because he spoke Spanish like you do?



         2
             The testimony in question was given by Cesario Flores at his deposition. The transcript of Flores's
deposition was read in the presence of the jury.
A   Yes.


Q   And because you were working on a job site where someone else got injured, you
    were probably curious about why that person got injured; would that be correct?

A   Yes.


Q   And so did you walk up to the Spanish speaking fellow and say, what happened to
    your co-worker, what happened to your friend, how did he get hurt?

A   Yes, that basically was what I've asked him.

Q   Okay. And what - I didn't understand, and I apologize to you for what I don't
    understand. Is that - was this response back to you about how or why the accident
    happened?

A   What -


    [COLLINS'S ATTORNEY]: Objection, hearsay.

    THE COURT: Any response, ...

    [KINGHAM'S ATTORNEY]: Your Honor, it's res gestae. This happened just
    after the event.


    [EASTEX'S ATTORNEY]: It's apresent sense impression also, Judge, and it goes
    to the -


    [COLLINS'S ATTORNEY]: Judge, can we - we don't have the objections out in
    the open. It's hearsay. And if we need to approach and discuss why it's hearsay -

    [KINGHAM'S ATTORNEY]: I don't know why we need to approach.

    THE COURT: Yeah, y'all approach for a second.

    (At the bench, off the record)

    THE COURT: Overruled.


    [KINGHAM'S ATTORNEY]: I'll re-read the question.

Q   ... what was his response back to you about how or why the accident happened?

A   What he answered to me, it was that there were two people walking and one was in
    front and one was behind, the one in front walked through, and the one behind
    stumbled on the steel and he fell.


Q   And did this Spanish speaking fellow tell you that he saw what happened?

A   Yes, because he was -

    [COLLINS'S ATTORNEY]: Judge - Hold on. I don't think we had a ruling to the objection
               on the record. So, I want to make sure the record's clear that I previously objected to it as
               hearsay, and then you overruled the objection.



               THE COURT: Okay. I did overrule it. Thank you.



       Hearsay is defined as "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 except as provided by statute or other rules. See Tex. R. Evid.
802. However, even if we assume that the above-referenced testimony was hearsay not subject to
an exception, any error in admitting such testimony must be harmful to result in a reversal.
       No judgment may be reversed on appeal on the ground that the trial court made an error of
law unless the court of appeals concludes that the error either (1) probably caused the rendition of
an improper judgment or (2) probably prevented the appellant from properly presenting the case to
the court of appeals. See Tex. R. App. P. 44.1 (a). We review the entire record to determine whether
the ruling amounted to reversible error. See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473,
480 (Tex. 2001). Reversible error does not usually occur in connection with an evidentiary ruling
unless the whole case turns on the evidence admitted or excluded. See City of Brownsville v.
Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
       In the case at hand, the only issue addressed by the jury was whether Kingham and/or Eastex
had a right to control the injury-causing activity and/or the defect-producing work on the premises.
As Collins notes in his brief, Flores's testimony that he was told that Collins stumbled on the steel
and he fell "has no bearing on the issue of Kingham's right of control." Yet, Collins argues that it
is plausible that if the jury believed that Collins tripped over the steel, then the jury would believe
that Kingham should not be responsible for Collins's own negligence. However, Collins's argument
fails to address the fact that the jury's finding addressed only the issue of Kingham and/or Eastex's
control over the injury-causing activity and/or the defect-producing work on the premises, not
proportionality ofresponsibility. See Plainview Motels, Inc. v. Reynolds, 127 S.W.3d21,35 (Tex.
App.-Tyler 2003, pet. denied) (In our analysis of the distinction between premises liability and
negligent activity, we do not focus on the activities of the plaintiff, which relate to the issue of
contributory negligence, but rather on the activities ofthe defendant.); Restatement (Second) of
Torts § 341 (1965). We conclude that Flores's testimony had no bearing on thejury's finding that
neither Kingham nor Eastex had a right to control the injury-causing activity and/or the defect-
producing work on the premises. Therefore, we hold that even if the trial court did erroneously
admit the aforementioned portion of Flores's testimony to which Collins objected, such error was
harmless. Collins's first issue is overruled.



                                       Factual Sufficiency

        In his second issue, Collins argues that the evidence was factually insufficient to support the
jury's finding that Kingham did not have a right to control or actually control the injury-causing
activity and/or the defect-producing work on the premises. When evaluating a factual sufficiency
challenge, we will consider and weigh all of the evidence in the case, both evidence supporting the
verdict and evidence that tends to contradict the facts upon which the jury based its verdict. See In
re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). We may not substitute our conclusions for
those found by the jury and will reverse only if we conclude that the verdict is so against the great
weight and preponderance of the evidence as to be manifestly unjust. Id.
Materiality of Question 1

        Premises defect cases and negligent activity cases are based on independent theories of
recovery.   Clayton Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997).          Recovery on
a negligent activity theory requires that the person be injured by or as a contemporaneous result of
an activity, rather than by a condition created by the activity. Timberwalk Apts. v. Cain, 972 S.W.2d
749, 753 (Tex. 1998); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). If the injury was
caused by a condition created by the activity rather than the activity itself, the plaintiff is limited to
a premises liability theory of recovery. See Keetch, 845 S.W.2d at 264.
        In his brief, Collins states, "[I]t is clear from the evidence that the conduct about which
[Collins] complained and which resulted in his injuries related to the condition and location of the
two steel girders which fell on Collins on the date of the accident." Collins continues, "Other than
the testimony of Cesario Flores about which Plaintiff raised a valid objection, there is no evidence
that any activities by anyone 'caused' the steel to fall on Plaintiff Collins." Moreover, in a footnote,
Collins states, that it is his contention that this is a premises defect case and not a negligent activity
case3 and that the evidence establishes that Kingham exercised actual control over where and when
Collins was working and had actual knowledge of the type of work he was doing that day. In sum,
Collins concedes that the evidence supports a premises liability finding, but not a finding related to
negligent activity. Id.
         A premises liability defendant may be held liable for a dangerous condition on the property
if it assumed control over and responsibility for the premises. See County of Cameron v. Brown,
80 S.W.3d 549, 556 (Tex. 2002). The relevant inquiry is whether the defendant assumed sufficient
control over the part of the premises that presented the alleged danger. Id.
         In the case at hand, Collins has conceded that the evidence does not support a finding related
to negligent activity. The only other theory under which Collins sought to hold Kingham liable was
premises liability. However, Question 1 did not permit the jury to find whether Kingham assumed
control over and responsibility for the premises. See id. Rather, Question 1 concerned whether
Kingham had a right to control the injury-causing activity and/or the defect-producingworkon the
premises. As Question 1 did not address the element ofownership or possession by virtue ofcontrol
over the premises, the jury's finding on Question 1 is immaterial with respect to the issue of
premises liability. Collins's second issue is overruled.


                                             Charge Instruction

         In his third issue, Collins argues that the trial court erred by refusing to submit the following
instruction with Question 1 of the court's charge:


         A written contract expressly excluding any right of control over the details of the work is not
         conclusive if it was a subterfuge from the beginning or was persistently ignored or was modified by
         subsequent express or implied agreement of the parties; otherwise such a written contract is
         conclusive.




In his brief, Collins argues that the only evidence on which the jury could have reasonably relied in
answering "no" to Question No. 1 with respect to Kingham was the actual contract between



          Collins notes that there is evidence of activities on his behalf that could have resulted in the accident.
However, as we have noted above, the actions of the defendant, not the plaintiff, form the basis for a negligent
activity claim. See Reynolds, 127 S.W.3d at 35.
KinghamandEastex. As set forth above,Collinshas concededthat the evidencesupportsapremises
liabilityfinding,but not a findingrelated to negligentactivity. Yet even assumingarguendo that the
trial court's refusal to submit the aforementioned instruction was erroneous, such refusal was not

harmful.

         No judgment may be reversed on appeal on the ground that the trial court made an error of
law unless the court of appeals concludes that the error either (1) probably caused the rendition of
an improper judgment or (2) probably prevented the appellant from properly presenting the case to
the court of appeals. See Tex. R. App.P. 44.1(a). We review the entire record to determine whether
the instruction amounted to reversible error. See Toennies, 47 S.W.3d at 480.

         Here, as set forth above, Question 1 is immaterial with respect to the issue of premises
liability. Therefore, we hold that even if the trial court erred in refusing to submit the requested
instruction, such refusal was harmless with regard to the issue ofpremises liability. Collins's third
issue is overruled.




                                                     Disposition

         Having overruled Collins's issues one, two, and three, we affirm the trial court's judgment.




                                                                   DIANE DEVASTO
                                                                         Justice




Opinion delivered July 20, 2005.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.




                                                      (PUBLISH)
                                COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT


                                             JULY 20, 2005



                                       NO. 12-04-00001-CV



                                            JOE COLLINS,
                                                 Appellant
                                                     V.

                          J.E. KINGHAM CONSTRUCTION, ET AL,
                                                 Appellees



                          Appeal from the 145th Judicial District Court
                    of Nacogdoches County, Texas. (Tr.Ct.No. C17,142-2001)


                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,

and the same being inspected, it is the opinion of this court that there was no error in the judgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged

against the appellant, JOE COLLINS, for which execution may issue, and that this decision be

certified to the court below for observance.


                       Diane DeVasto, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
