                                  NO. 07-97-0495-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  JUNE 29, 1999
                         ______________________________

                         LEE LEWIS CONSTRUCTION, INC.,

                                                       Appellant

                                            v.

              NORMA HARRISON, INDIVIDUALLY and as next friend of
             SUMER DAWN HARRISON AND JIMMY THOR HARRISON,
                      and MAY and SELLIE HARRISON,

                                               Appellees
                       _________________________________

           FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 91-534,715; HON. JOHN R. McFALL, PRESIDING
                       _______________________________

Before Boyd, C.J., Quinn, and Reavis, JJ.

      Lee Lewis Construction, Inc. (LLC) appeals from a final judgment 1) awarding

damages against it to Norma Harrison, individually and as the next friend of her children

Sumer Dawn and Jimmy Thor Harrison, and May and Sellie Harrison (collectively referred

to as Jimmy’s kin) and 2) granting summary judgment to KK Glass, Inc. (KK). Via eight

issues, LLC questions the sufficiency of the evidence underlying the finding of negligence

and the award of exemplary damages, the accuracy of a jury issue submitted by the court,
the admission of evidence allegedly depicting subsequent remedial measures, and the

validity of the summary judgment granted KK. We affirm in part and reverse in part.

                                       Background

       The lawsuit arose from an incident occurring at a construction site. LLC was

retained, as general contractor, by the owner of the site to construct additional floors to an

existing building. Methodist Hospital (Methodist) owned the site in question. Of the many

subcontractors hired to assist it in performing its contractual duties, LLC retained KK to

install “all glass glazing,” among other things. While performing his duties under this

subcontract, Jimmy Harrison, an employee of KK Glass, fell from the tenth story of the

building to his death.

       Thereafter, Jimmy’s wife (Norma), children (Sumer Dawn and Jimmy Thor) and

parents (May and Sellie) sued LLC for negligence, negligence per se, and gross

negligence. So too did they sue KK, but only for gross negligence. LLC then filed its

cross-claim against KK for contractual indemnity or, alternatively, contribution. KK moved

for summary judgment upon the claim of LLC, which motion was granted. KK also entered

into a settlement agreement with Jimmy’s kin, who then non-suited their claims against it.

       Eventually, the dispute between Jimmy’s kin and LLC was tried to a jury. After

hearing the evidence, the latter rendered a verdict that LLC retained “the right to control

safety” at the construction site, that LLC was both negligent and grossly negligent, and that

the plaintiffs were entitled to compensatory and exemplary damages. Judgment was

subsequently entered upon that verdict.




                                              2
                                   Retention of Control

       The first issue posed concerns the legal and factual sufficiency of the evidence

underlying the jury’s finding of negligence. Specifically, LLC asserts that, at most, it

retained the right to require its subcontractors to abide by general safety measures at the

construction site. In retaining this right, it continues, it did not undertake the unqualified

duty to ensure a safe workplace for the employees of its independent contractors. Rather,

it merely bound itself to ensure that any safety measures it enacted did not increase the

risk of harm to those employees. Allegedly, nothing of record illustrates that any of its

safety measures increased the risk of harm to Jimmy. Consequently, the evidence of

negligence is supposedly inadequate to support the jury’s verdict. We disagree, for LLC

did more than merely retain the right to have its subcontractors abide by the “general”

safety regulations it promulgated.

       1.     Standard of Review

       A finding is legally sufficient if some evidence, or the reasonable inferences

therefrom, supports it. Tabor v. Hogan, 955 S.W.2d 894, 895-96 (Tex. App.--Amarillo

1997, no pet.); In the Interest of Striegler, 915 S.W.2d 629, 638 (Tex. App.--Amarillo 1996,

writ dism’d w.o.j.). This is determined by first examining the record for evidence favoring

the verdict while ignoring that contradicting it. Id. If the favorable evidence amounts to

more than a scintilla, then the verdict is legally sufficient. Id. In other words, if the

favorable evidence “‘rises to the level that would enable reasonable and fair-minded

people to differ in their conclusions,’” then the verdict passes muster. Associated Indem.




                                              3
Corp. v. Cat Contr., Inc., 964 S.W.2d 276, 285-86 (Tex. 1998) (quoting Transportation Ins.

Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994).

       In resolving questions of factual sufficiency, our task differs; we decide if the

evidence uncovered through application of the legal sufficiency standard is so weak, or the

contrary evidence so overwhelming, as to render the finding clearly wrong or manifestly

unjust. In the Interest of Striegler, 915 S.W.2d at 638-39. Thus, in conducting a factual

sufficiency analysis we consider the entire record, not just the evidence supporting the

verdict.

       Neither of the foregoing standards enable us to substitute our personal

interpretation of the evidence for that of the fact finder. Its authority to assign weight to the

evidence, make reasonable inferences therefrom, and assess the credibility of the

witnesses remains inviolate under both standards. Tabor v. Hogan, 955 S.W.2d at 896.

       2.     Extent of Duty Upon General Contractor

       Normally, a general contractor owes no duty to ensure that an independent

subcontractor performs in a safe manner. Hoechst-Celanese Corp. v. Mendez, 967

S.W.2d 354, 356 (Tex. 1998); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527

(Tex. 1997). Yet, no rule is without exception, and that pertinent here arises from the

concept of control. That is, our courts have long recognized that one enjoying the

authority to control a matter is in the best position to protect against harm arising from it.

Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). Thus, if a general contractor

retains the right to control safety at the construction site, it must act reasonably. Hoechst-

Celanese Corp. v. Mendez, 967 S.W.2d at 356; Clayton W. Williams, Jr., Inc. v. Olivo, 952


                                               4
S.W.2d at 528; Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); Welch v.

McDougal, 876 S.W.2d 218, 222 (Tex. App.--Amarillo 1994, writ denied). This does not

mean that the duty to so act is plenary, however. Rather, it is proportional to the control

retained or exercised.1 Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d at 355; Exxon

Corp. v. Tidwell, 867 S.W.2d at 23.

        The interplay between retained control and scope of duty is much like a sliding

scale. As more control is retained over how the subcontractor performs the details of its

work, the parameters of the duty proportionally increase. For instance, requiring a

subcontractor to abide by the general contractor’s safety rules and regulations does not

impose upon the latter an unqualified duty to ensure the safety of each employee of the

subcontractor. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d at 357-58. Under that

circumstance, the general contractor is merely obligated to assure “that any safety

requirements and procedures . . . [it] promulgated did not unreasonably increase . . . the

probability and severity of injury” to the subcontractor’s employees. Id. This is so because

the control exercised is finite and no greater than the scope of the rules enacted. See

Arias v. MHI Partnership, Ltd., 978 S.W.2d 660, 663 (Tex. App.--Corpus Christi 1998, pet.

denied) (interpreting Hoechst-Celanese as holding that “when an employer promulgates

a safety rule or regime, it assumes a narrow duty — to ensure that its rules or

requirements are reasonably safe”). And, to the extent that the subcontractor’s freedom

        1
           We say “retained” or “exercised” because the requisite control may be exemplified in either way.
That is, it may be reserved by contract or merely exercised by the general contractor sans contract. Welch
v. McDougal, 876 S.W.2d 218, 222 (Tex. App.--Amarillo 1994, writ denied). If reserved by agreement, it
matters not whether the general contractor actually exercises it, for liability arises from the mere right to
exercise it. Campbell v. Adventist Health System / Sunbelt, Inc., 946 S.W.2d 617, 621 (Tex. App.--Fort
Worth 1997, no writ).

                                                     5
to act within the area is impinged, it is so impinged only with regard to the matters

encompassed by those particular rules and regulations. In other things, the subcontractor

is entirely free to work as it chooses. See id. (stating that before the general contractor

becomes liable, it must retain a right of control sufficient to limit the subcontractor’s

freedom to perform as he chooses); RESTATE MENT (SECOND ) OF TORTS § 414 cmt. c (1965)

(stating the same).

        Yet, as the general contractor increases its authority over matters of safety, its duty

to act with reasonable care similarly increases. So, the narrow duty recognized by Arias

and Hoechst-Celanese does not necessarily remain narrow. Conceivably, if all of the

subcontractor’s independence in the area of safety were usurped then it the general

contractor’s duty of care would consist of more than merely assuring that its rules do not

increase the risk of harm. Indeed, if the area of safety is usurped, then the general

contractor would have to exercise reasonable care by not only assuring that its rules do

not increase the risk of harm, but also affirmatively promulgating rules which ameliorate

unsafe practices or conditions of which it knew or should have known and which were

within its control.

        3.      Application of Standard

                a.      Legal Sufficiency2

        The contract between Methodist and LLC (referred to as the Methodist Contract)

contained numerous provisions regarding the supervision of work and safety.                           For


        2
         We note that while the standard of review applicable to claims of legal insufficiency obligates us
to focus upon the evidence favoring the jury’s verdict, LLC focused on that which contradicted it. This did
not comport with its appellate burden.

                                                    6
instance, LLC agreed to 1) supervise and direct the work, 2) be solely responsible for all

construction means, methods, techniques, sequences, and procedures, 3) coordinate all

portions of the work, 4) be responsible to Methodist for the acts and omissions of it, its

employees and of its subcontractors and their employees, 5) be “responsible for initiating,

maintaining and supervising all safety precautions and programs in connection with the

[w]ork,” 6) take “all reasonable precautions for the safety of, and . . . [to] provide all

reasonable protection to prevent damage, injury or loss to . . . all employees on the [w]ork

and all other persons who may be affected thereby,” including Methodist and “other

separate contractors,” 7) give “all notices and comply with all applicable laws, ordinances,

rules, regulations and lawful orders of any public authority bearing on the safety of persons

. . . or their protection from damage, injury or loss,” 8) “erect and maintain . . . all

reasonable safeguards for safety and protection,” and 9) “designate a responsible member

of . . . [its] organization at the site whose duty shall be the prevention of accidents.”

(emphasis added).

       From this we gather that LLC did more than promise Methodist to protect and initiate

safety measure simply with regard to LLC employees. Indeed, reference to undertaking

all reasonable precautions and providing all reasonable safety measures to protect, from

injury, Methodist, “other separate contractors,” and “all employees on the [w]ork and all

other persons who may be affected thereby” illustrates that those encompassed within

LLC’s duty included not only employees of LLC but also those of Methodist and the

subcontractors. So too do these provisions evince plenary power over matters of safety.

Again, LLC agreed to 1) initiate, supervise and maintain all safety precautions and


                                             7
programs and 2) take all reasonable safety precautions for the safety of all employees and

persons.

       The contract between LLC and KK (referred to as the KK Contract or subcontract)

also addressed matters of safety. Though it did not contain the same ubiquitous language

as did the Methodist Contract, it did require KK to 1) assume towards LLC all of the

obligations and responsibilities that LLC assumed toward Methodist, 2) comply with all

codes, laws, ordinances, rules, regulations, and orders of any public authority regarding

performance of its work, 3) abide by LLC’s safety rules and regulations as well as those

of any governmental body having authority to control the manner or method of carrying out

the work, 4) have its employees wear hard hats, 5) have its employees “[w]ork off of

platforms and scaffolding that conform to OSHA [r]equirements,” 6) have its employees

use safety belts when working in areas without handrails, 7) have its foreman attend LLC

weekly safety meetings, 8) appoint a supervisor who would be responsible for enforcing

all safety rules for employees under his direction, 9) report safety violations or serious

accidents, 10) provide a first aid kit, 11) insure that equipment utilized at the site was

inspected and certified to be in safe working condition prior to use, 12) use safety goggles,

13) properly train its employees, 14) ensure that the equipment used by its employees was

safe and in good working order, and 15) permit LLC to remove those KK employees who

fail to comply with LLC’s safety measures and directives.

       Additionally, while nothing in the KK Contract expressly stated that LLC retained the

right to control matters of safety, nothing in the agreement expressly prohibited it from

doing so. Given this absence of prohibition, the testimony of LLC’s president becomes


                                             8
most telling. He first testified that LLC “want[ed] responsibility of” safety on the job site.

Then, he conceded that LLC retained the right to control safety on that job site, “even in

terms of making sure that [the] subcontractors did their work safely.” (emphasis added).

Furthermore, the work which LLC intended to “mak[e] sure” was done safely included that

performed by KK and all other subcontractors. That the subcontract did not affect LLC’s

ability to “make sure that they [the subcontrators] did their work in a safe manner” was also

conceded. (emphasis added).

        So too did LLC’s president discuss the duties of the superintendent LLC retained

and placed at the site. Allegedly, the superintendent was hired, in part, “to help prevent

an employee of the subcontractor from inadvertently and unnecessarily falling to their [sic]

death.” To that end, this superintendent was obligated to walk the site while “construction

was ongoing to look for safety hazards, including inappropriate use of fall protection

equipment” and halt unsafe practices. (emphasis added). He was also expected to

assess whether “proper [fall] technique” (or fall protection) was being utilized by the

subcontractors and, if unsafe techniques were discovered, “correct what they [sic] were

doing until they got it safe.”3 So too could he direct employees of subcontractors to leave

the site if they did not comply with his safety directives.

        Admittedly, LLC may not have expressly reserved the right to control safety in the

KK Contract. Yet, in 1) promising Methodist that it would initiate all reasonable safety

precautions and provide all reasonable safety protection to those working at the site,



        3
         Incidentally, the superintendent himself agreed that his official duties included the “need to make
sure they [the subcontractors] do [their job] safely.”

                                                     9
including “other contractors” such as KK, 2) assigning one of its superintendents to

oversee the project, observe the activities of its subcontractors for safety hazards including

the inappropriate use of fall protection, assess their use of proper fall techniques, and

make them correct unsafe practices until he was satisfied, 3) retaining the authority to

remove those who did not perform safely, 4) vesting the ability to exercise the latter

authority in its superintendent, and 5) concluding that the subcontract did not affect its

ability to assure that the subcontractor worked in a safe “manner,” LLC effectively

controlled the matter of job safety. See Welch v. McDougal, 876 S.W.2d at 223 (stating

that liability may be imposed when the general contractor retains control over the “manner”

in which the work is performed).

       Simply put, some evidence illustrates that LLC did more than merely direct its

subcontractors to follow promulgated rules of safety, which distinguishes this case from

Hoechst-Celanese. More than a scintilla of evidence illustrates that it assumed the duty

to affirmatively act vis-a-vis matters of safety, including the use of fall protection and that

KK was not entirely free to do the work in the manner it deemed safe. Consequently, and

contrary to LLC’s assertion, legally sufficient evidence supports the conclusion that LLC

retained the right to control the “manner” in which KK was to safely perform its contractual

duties, including those pertaining to the use of equipment to prevent falls.

              b.     Factual Sufficiency

       Evidence does exist which illustrates that KK assumed various duties with regard

to safety, training, and the use of safe equipment. Provisions of the KK Contract, for

example, imposed upon it the obligation to train its employees about acceptable work


                                              10
practices and ensure the safety of the equipment to be used. So too did KK bind itself to

perform vis-a-vis LLC the very same duties LLC agreed to perform vis-a-vis Methodist. Yet

again, nothing in the subcontract precluded LLC from exercising control over safety,

possibly because to so relinquish that power could effect a breach by LLC of the Methodist

Contract. Furthermore, as discussed above, LLC hired an individual to search for unsafe

activities, assess the safety practices of KK and the other subcontractors, and require that

those safety practices be changed until he personally considered them acceptable. If the

subcontractors’ employees disagreed with him, LLC vested its employee with the authority

to terminate their involvement with the project.

       As can be seen, the evidence is mixed and we do not find that which contradicts the

verdict to be so overwhelming as to render the verdict clearly wrong or manifestly unjust.

Therefore, the record compels us to also reject LLC’s factual sufficiency attack.

                      The Jury Question on Lewis’s Right of Control

       LLC next questions the propriety of the first issue propounded to the jury.4

Allegedly, it was too general. Instead of asking the jury to decide if LLC “retained the right

to control safety on the project” in general, the court was supposedly obligated to ask if

LLC retained the “right to control the specific activity that allegedly resulted in [Jimmy’s]

death: that is, the use of the double-lanyard harness system or the . . . bosun’s chair.”

(emphasis omitted). We conclude that the dispute is immaterial or moot because LLC did

not also attack the wording of question number two and its accompanying instruction.


       4
         Question one read: “Did Lee Lewis Construction, Inc. retain the right to control safety on the
construction project where Jimmy Harrison suffered his fatal fall?” The jury answered “yes.”


                                                  11
       Question two asked the jury to determine if “the negligence, if any, of . . . [LLC and

Jimmy] proximately cause[d] the occurrence.” Furthermore, the trial court instructed the

jury that negligence meant:

       the failure to use ordinary care with regard to its retained right of control, if
       any, to reduce or eliminate an unreasonable risk of harm created by an
       activity or condition on the premises which the general contractor either
       knows about or in the exercise of ordinary care should know about.

For the jury to answer the question in the affirmative, it was implicitly required to visit anew

the issue of “right to control” and hold that such right was retained. Because it answered

the question “yes,” LLC’s liability can be founded upon the jury’s answer to question two,

irrespective of its answer to, and the wording of, question one.

       LLC did not attack the wording of question two. So, regardless of how we resolve

its complaints about the wording of question one, liability can still be based upon the

affirmative answer to question two. See El Paso Natural Gas Co. v. Minco Oil & Gas Co.,

964 S.W.2d 54, 72 (Tex. App.--Amarillo 1997, pet. granted) (appellate courts may not raise

error sua sponte and are limited to addressing issues presented by parties); Lance v.

USAA Ins. Co, 934 S.W.2d 427, 433 n.1 (Tex. App.--Waco 1996, no writ) (complaint to one

part of judgment is waived if not briefed even though error in other part is briefed). In

short, this means that LLC’s complaint vis the wording of question one is immaterial.

                                      Proximate Cause

       LLC next contends that the judgment was improper because the evidence failed to

establish that its misconduct proximately caused Jimmy’s death. This is allegedly so

because no one saw him fall. Nor did Jimmy’s kin present evidence illustrating the cause



                                              12
of his fall, argues LLC. Because the jury was left to speculate about why and how he fell,

it allegedly could not conclude that any breach of duty by LLC proximately caused the fall

and resulting death. We reject the proposition.




                                           13
       1.      Standard of Review

       In essence, LLC’s complaint is again one concerning the sufficiency of the evidence

to support the verdict. Thus, the standard of review discussed in the first issue is

applicable here and need not be reiterated.

        Proximate cause consists of two elements, cause in fact and foreseeability. Doe

v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The presence of

both may not be established by mere conjecture, guess, or speculation. Id. Instead, the

complainant must present evidence supporting their existence. As to the matter of cause

in fact, that evidence must be enough to illustrate that the breached duty in question

constituted a substantial factor in bringing about the harm of which complaint is made. Id.

That is, it must be enough to justify the conclusion that the injury was the natural and

probable result of the breach. Id. With regard to foreseeability, proof of anticipation is

required; foreseeability exists when the evidence illustrates that the defendant should have

reasonably anticipated that its misconduct created danger of injury of the general character

involved in the suit. Id. at 478.

        2.      Application of Standard5

        Jimmy’s kin asserted in its live pleading that LLC had a duty to, among other things,

exercise reasonable care in supervising and implementing the use of proper fall protection

by KK’s employees. Evidence presented at trial indicated that the fulfillment of the duty

encompassed the development and implementation of a safety program addressing three



       5
         Because LLC’s argument does not concern the foreseeability aspect of causation, we only address
the subject of cause in fact.

                                                  14
aspects. The first concerned the prevention of a fall, the second, the cessation of the fall

once it occurs, and the third, the timely recovery of personnel once the fall has been

interrupted. Other evidence indicated that under the circumstances of this case, a

separate lifeline was needed to fulfill the second aspect. Indeed, LLC’s own safety

program required the use of lifelines (along with lanyards and a safety belt) by those

individuals performing tasks that entailed a risk of falling. So too did testimony evince that

1) the use of such a lifeline would prevent one from falling to his death once he fell, 2) LLC

neither demanded that such a lifeline be used by KK employees nor provided one for use

by those employees, 3) LLC’s superintendent actually saw Jimmy performing working on

a four to five inch window sill far above ground without a lifeline, and 4) LLC’s

superintendent did nothing to stop Jimmy from so performing, despite the dictates of LLC’s

own safety program.

       This constitutes some evidence that the failure to provide a lifeline caused Jimmy’s

death and that the harm arising from that omission was reasonably foreseeable by LLC;

as much is exemplified simply by LLC requiring use of a lifeline in its policies and then

ignoring that policy once it knew it was being violated. Moreover, the evidence which

contradicted the finding of causation was not of such a quantum so as to render the

determination clearly wrong or unjust. Thus, we conclude that both legally and factually

sufficient evidence supported the jury’s finding of proximate cause.

       Next, LLC’s contention involving the absence of evidence about why Jimmy fell

does not affect our conclusion. This is so because the argument merely implicates the first

of the three categories of care LLC was to provide. In other words, it merely concerned


                                             15
the duty relating to the development and implementation of measures to prevent a fall.

Yet, how the fall occurred mattered not to the allegation that LLC had the duty to take

measures to protect Jimmy once he fell. Simply put, LLC’s argument relates to one distinct

duty while the evidence supporting recovery relates to another. Because the evidence

may have been insufficient to prove causation vis the breach of the former, it does mean

it is insufficient to prove causation vis the breach of the latter. Furthermore, it is this

dissimilarity in the duties involved which renders inapposite various opinions relied upon

by LLC.

       For instance, in Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20 (Tex. App.--

Houston [1st Dist.] 1995, writ denied), the focus was upon defects in the condition of the

hotel which caused or facilitated a person’s fall from a balcony. Because there was no

evidence illustrating why the victim fell, the court was bound to conclude that the purported

defects in the building in fact caused his fall. Id. at 25-26. Unlike the situation at bar, the

court did not have before it the question of whether the hotel had a duty to provide means

to stop a fall once it occurred and breached that duty.

       Similarly, the plaintiff in Hopper v. J.C. Penney Co., 371 S.W.2d 750 (Tex. Civ. App.

--Fort Worth 1963, writ ref’d n.r.e.), posited that the defective condition of the stairs

maintained by J.C. Penney caused her to fall. Because the impetus of her fall was

unknown, the court held that no one could conclude that the stairs caused her fall. Thus,

an instructed verdict for the defendant was appropriate. Like the court in Summers, that

in Hopper was not asked to determine whether J.C. Penney had breached a duty to




                                              16
provide safety measures once someone fell on the stairs. So, like Summers, Hopper to

is inapposite.6

                        Evidence of Subsequent Remedial Measures

        Next, LLC complains of the trial court’s decision to admit evidence of what it

considers to be subsequent remedial measures. The evidence in question concerned the

installation of a steel cable to which KK’s employees attached their lanyards and the

provision of a scaffold for use by those same employees. Allegedly, this evidence was

admitted in violation of Texas Rule of Evidence 407. We disagree.

        1.      Standard of Review

        Whether to admit or reject evidence lies within the trial court’s considered

discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). That

discretion is abused only when the court’s decision deviates from guiding rules or

principles. Id. at 754. The guiding rule pertinent here is Texas Rule of Evidence 407,

which states that subsequent remedial measures are inadmissible to prove negligence or

culpable conduct. Exxon Corp. v. Roberts, 724 S.W.2d 863, 869 (Tex. App.--Texarkana

1986, writ ref’d n.r.e.); City of Amarillo v. Reid, 510 S.W.2d 624, 630 (Tex. Civ. App.--

Amarillo 1974, writ ref’d n.r.e.). However, it does not demand exclusion if the evidence is

offered for another purpose, such as to prove, among other things, control. TEX . R. EVID .




        6
         The other case cited by LLC, Texas Dept. of Corrections v. Jackson, 661 S.W.2d 154 (Tex. App.--
Houston [1st Dist.] 1983, writ ref’d n.r.e.), is also distinguishable for the same reason Summers and Hopper
are. That is, what precipitated the original accident was of concern there, whereas our case involves the duty
to take particular action in the event an accident occurs.

                                                     17
407(a); Roosth & Genecov Prod. Co. v. White, 262 S.W.2d 99, 104-105 (Tex. 1953)

(discussing the principle and its exceptions).

       For example, if the existence of one’s duty to act depended upon his right to control

a matter and dispute existed as to which of two parties had that right, then evidence of

one’s party’s amelioration of a condition (after an injury occurred) is admissible as

evidence illustrating that the party ameliorating the condition had control over the matter.

Spurr v. LaSalle Constr. Co., 385 F.2d 322, 327-28 (7th Cir. 1967) (applying the

comparable federal rule); 2 J. W EINS TEIN , M. BERGER , & J. MC LAUGH LIN , W EINS TEIN ’S

EVIDENCE ¶ 407[04] (1996).

       2.         Application of Standard

       Here, LLC denied that it had the right and obligation to control safety measures in

general and the fall protection utilized by KK’s employees in particular. Yet, that it installed

the steel cable and provided a scaffold for use by those employees is evidence akin to that

contemplated in Spurr and W EINSTEINS ’S EVIDENCE . In other words, it is probative on the

question of who exercised control over safety measures utilized by those working above

ground and outside the building, i.e., LLC or each subcontractor.7 Thus, it was admissible

under rule 407(a) and the trial court did not abuse its discretion in admitting it.

       Nevertheless, LLC posits that before the evidence could be admitted, Jimmy’s kin

had to illustrate that KK was required by LLC to utilize the devices LLC provided. To so

suggest is to argue that one must prove that another controlled a certain activity before



       7
           Whether its probative value is outweighed by undue prejudice, see TEX. R. EVID . 403, is not before
us.

                                                      18
evidence illustrating that he controlled it can be admitted. We reject the suggestion. Proof

that LLC controlled KK (via proof that KK was obligated to use the device) is not a

condition precedent to the admissibility of evidence illustrating that LLC controlled KK.

And, assuming by some stretch of the imagination that it were, such proof exists at bar;

LLC’s president testified that it could remove from the site those who did not abide by its

safety directives. So, if LLC told KK to use the steel cable and scaffold, KK had to or risk

being removed.

        We also reject LLC’s contention that the limiting instruction provided to the jury was

a comment on the weight of the evidence.8 This is so because the particular ground is

urged here for the first time contrary to Rule 33.1(a) of the Texas Rules of Appellate

Procedure. Furthermore, the instruction does not reasonably tend to suggest anything

about the mental impressions or belief of the court nor minimize or place emphasis on any

of the evidence. First Nat’l Bank of Amarillo v. Jarnigan, 794 S.W.2d 54, 62 (Tex. App.--

Amarillo 1990, writ denied).

            Evidence Supporting Compensatory Damages Awarded to Jimmy

        Next, the trial court submitted a question to the jury asking it to determine what

monies would “fairly and reasonably compensate[] Jimmy Harrison for pain and mental

anguish.” It answered $500,000. LLC contends that this answer lacks factually sufficient

evidentiary support. This is allegedly so because Jimmy’s kin “failed to establish through

any testimony or evidence whatsoever that Jimmy . . . consciously experienced any pain,


        8
         The trial court told the jury, via the charge, that evidence of subsequent remedial measures was
“not to be considered as proof of negligence, but only as evidence of control and for purposes of
impeachment.”

                                                  19
suffering or mental anguish.” In other words, LLC disputes the award because it believes

that the evidence fails to evince that Jimmy was conscious of his ten story fall and its

ramifications. We agree in part.




                                          20
       1.     Standard of Review

       We discussed above the standard of review applicable to claims of factual

insufficiency. The parties are referred to it.

       Damages for pain and mental anguish are recoverable in suits for personal injury.

However, they must be sought for recompense for pain and anguish experienced while

conscious. Southern Pacific Transp. Co. v. Luna, 730 S.W.2d 36, 38 (Tex. App.--Corpus

Christi 1987, no writ); Burrous v. Knotts, 482 S.W.2d 358, 363 (Tex. Civ. App.--Tyler 1972,

no writ). Because the amount to award is not calculable by any mathematical formula, the

fact finder enjoys discretion in determining the sum. Saenz v. Fidelity & Guar. Ins.

Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Yet, its discretion is not unbridled. Id.;

Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores, 951 S.W.2d 542, 548 (Tex.

App.--El Paso 1997, no writ). A jury is not free to simply select any amount which it may

care to. Saenz v. Fidelity Guar. Ins. Underwriters, 925 S.W.2d at 614. Rather, the sum

derived must be that which fairly and reasonably compensates the injured for undergoing

the experience. Id.

       In assessing the validity of the jury’s finding, our task is twofold. Not only must we

peruse the record to determine whether evidence illustrates that the injured experienced

compensable pain, suffering, and anguish but also that the amount awarded for

experiencing same is reasonable. Id.; Burlington Coat Factory Warehouse of El Paso, Inc.

v. Flores, 951 S.W.2d at 548. Whether the complainant suffered a severe physical injury

is one indicia which we can consider for pain and anguish presumably accompanying such

an injury. Bedgood v. Madalin, 589 S.W.2d 797, 806 (Tex. Civ. App.--Corpus Christi


                                             21
1979), affirmed in part and reversed and remanded in part on other grounds, 600 S.W.2d

773 (Tex. 1980).

        In addition to the nature of the injury, another factor concerns the consciousness

of the individual and the duration of the injury’s effects. See Gulf States Utilities Co. v.

Reed, 659 S.W.2d 849, 855 (Tex. App.--Houston [14th Dist.] 1983, writ ref’d n.r.e.)

(concluding that five seconds of pain inflicted via electrocution supported an award of

$10,000); Burrous v. Knotts, supra (reducing the award by $30,000 to $10,000 because

the jury did not distinguish between periods of consciousness and unconsciousness).

Contemplated within this is consciousness not only of pain and suffering but also of

approaching death. Hurst Aviation v. Junnell, 642 S.W.2d 856, 859 (Tex. App.--Fort Worth

1982, no writ). So too are the degree (i.e. severity) and duration of the pain and distress,

Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (noting that the court must

distinguish between shades and degrees in evaluating claims of mental anguish), the

extent to which the daily routine of the injured is disrupted, id., and the similarity of the

award with those in other cases of import.9 Landreth v. Reed, 570 S.W.2d 486, 490 (Tex.

Civ. App.--Texarkana 1978, no writ).

        2.      Application of Standard

        The record reveals that Jimmy fell from the tenth floor, a height approximating 120

to 140 feet from the ground. His colleague saw him fall from the window. Another witness,



        9
           While the factors we itemized are not exhaustive, we nevertheless reject the notion of Jimmy’s kin
that the amount of money a reasonable person would take to voluntarily undergo the same incident is
pertinent. We do so because it is inherently specious. Simply put, a reasonable person would never opt to
fall to his death in exchange for money.

                                                    22
Ed Smith, heard a yell, looked up, noticed Jimmy within feet of the ground, and saw him

land within 20 to 30 feet of Smith’s location. Smith concluded that the person who he

heard yelling was Jimmy, attempted to call a supervisor, and proceeded to the spot where

Jimmy lay. Before arriving, Smith was told to stop because Jimmy was dead.

       We are cited to no evidence suggesting that Jimmy was either conscious or even

alive at anytime after striking the ground. Nor does our own investigation of the record

uncover any. Given this, we have no basis upon which to hypothesize, much less

conclude, that Jimmy was either conscious or alive immediately after reaching the ground.

Rather, the distance of his fall, the blood spatter, and the manner of his landing would

indicate that he was neither alive nor conscious.

       In effect, all that can be inferred from this record is that Jimmy was conscious while

falling and perceived his fall, as suggested by his yelling. Yet, through the application of

physics (a body of mathematics of which we take judicial notice), his perception of the fall

and its potential consequence could have lasted no more than 2.7 to 4 seconds. And,

given Jimmy’s death, whether he will experience disruption in his daily routine matters not.

       Thus, the question devolves into one more within the realm of philosophy than

jurisprudence and it concerns the amount of money which would reasonably compensate

someone who knew that he would be dead within seconds. The youth in Gulf States

Utilities suffered approximately five seconds of electrocution before dying. The jury valued

those few seconds and the concomitant pain and anguish at $10,000, an amount the

appellate court found acceptable. Gulf States Utilities Co. v. Reed, 659 S.W.2d at 855.

In Hurst Aviation, wherein the decedent was aware of his descent from the sky for


                                             23
apparently less than a minute, the value was set at $20,000; this sum the appellate court

also found acceptable. Hurst Aviation v. Junell, 642 S.W.2d at 859. In Green v. Hale, 590

S.W.2d 231 (Tex. Civ. App.--Tyler 1979, no writ), wherein consciousness of the dire

circumstances was brief, the court approved an award of $5,000. Id. at 237-38. In

Guzman v. Guajardo, 761 S.W.2d 506 (Tex. App.--Corpus Christi 1988, writ denied), two

of three justices thought an award of $600,000 for at least fifteen minutes of pain and

suffering was reasonable. Id. at 512.

      Conversely, $65,000 was considered an excessive award for one who was

conscious while drowning in Landreth. Thus, the court reduced the sum to $35,000.

Landreth v. Reed, 570 S.W.2d at 492. Similarly, an award of $40,000 for living ten

minutes after the onset of a fire was deemed excessive by $30,000 in Burrous. So,

remittitur was ordered.

       After considering the sparse evidence of record, the few seconds involved, and the

verdicts rendered in other cases, we conclude that some evidence supports the award of

damages for pain, suffering, and mental anguish. However, the 2.7 to 4 seconds of mental

anguish experienced is factually insufficient to support an award of $500,000. Remittitur

is appropriate.

                     Exemplary Damages and Gross Negligence




                                           24
        Next, LLC posits that the exemplary damages awarded to Jimmy’s kin lacked legally

and factually sufficient evidentiary support. This is so because they allegedly failed to

prove that LLC acted grossly negligent.10 We disagree.




        10
          Jimmy’s kin were awarded exemplary damages of $5,000,000. In contesting that award, LLC
merely attacks the underlying finding of gross negligence. It does not argue that the amount awarded was
excessive. Thus, we need not analyze the validity of the sum itself pursuant to the edict of Ellis County State
Bank v. Keever, 915 S.W.2d 478 (Tex. 1995).

                                                     25
       1.     Standard of Review

       We incorporate the standard of review applicable to claims of legal and factual

insufficiency expressed supra. For the finding of gross negligence to be supportable, the

evidence must satisfy two prongs.       First, when viewed objectively from the actor’s

standpoint, the act or omission must involve an extreme degree of risk, considering the

probability and magnitude of the potential harm to others. Mobil Oil Corp. v. Ellender, 968

S.W.2d 917, 921 (Tex. 1998). That is, the defendant’s acts or omissions must create a

grave risk of substantial injury. Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex.

1995). Furthermore, this risk of injury created by the defendant’s conduct must be more

than remote. In Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994), the

court noted that the misconduct must “greatly increase[] the likelihood” of serious injury.

Id. at 22 n.14. In other words, the chance of such harm must be likely, as opposed to

remote. Id. at 22; see Mobil Oil Corp. v. Ellender, 968 S.W.2d at 921 (construing the

element as requiring proof that the defendant’s conduct produced a “likelihood of serious

injury”); Universal Serv. Co. v. Ung, 904 S.W.2d at 641 (stating the same).

       Under the second prong, the actor must actually be aware of the risk he is creating

and nevertheless proceed with his conduct in conscious indifference to the rights, safety,

or welfare of others. Mobil Oil Corp. v. Ellender, 968 S.W.2d at 921. Stated differently, the

second element obligates the complainant to prove that the defendant knew of the grave

peril accompanying his activity but did not care about it. Id.

       As can be seen, more than mere negligence is necessary. Again, the actor’s

behavior must reasonably form a likelihood of serious injury and the likelihood must be


                                             26
known to and, consciously ignored by, the actor. Finally, one may rely upon circumstantial

evidence to prove each of these elements. Mobil Oil Corp. v. Ellender, 968 S.W.2d at 921.

       2.     Application of Standard

              a.      Legal Sufficiency

                      i.     First Prong -- Conduct Creating Extreme Risk

       Jimmy’s kin is correct in saying that “it is important to first define the risk” involved.

As required by Mobil and Ung, the pertinent risk here is that created or caused by the

action or inaction of LLC. Thus, it is not enough to suggest, as do Jimmy’s kin, that the

risk involved here was that “workers would fall ten stories to their deaths,” for that

proposition neither considers the duties of LLC nor its acts or omissions in relation to those

duties. That is, the risk of falling to one’s death is but part of the equation. The remainder

addresses whether LLC’s conduct was such as to make the chance of falling to one’s

death likely. The conduct in question pertains to LLC’s failure to provide adequate fall

protection contrary to its duty to do so. Thus, to satisfy the first prong, more than a scintilla

of evidence must exist illustrating that a reasonable person viewing the circumstances from

the standpoint of LLC would conclude that the conduct of LLC in failing to provide

adequate fall protection created an extreme and likely risk of a worker falling to his death.

We now turn to the record to determine if such evidence exists.

       To complete the construction project, some of the work had to be performed outside

the building by people hanging off the 9th and 10th stories. Working against those

individuals would be Newton’s law of gravity. Furthermore, it was generally understood

that gravity coupled with the distance from which the workers would hang made death the


                                               27
likely result of any fall. That falling was not a foreign concept in the construction industry

is exemplified by the testimony of LLC’s president, who conceded that falls were one of the

“top” causes of serious injury or death at construction sites. Another witness called it the

“number one killer of construction workers.” So too did the president, who had been

involved in the construction industry for many years, acknowledge other matters of import.

The first concerned his belief that there was no greater hazard to workmen at the site and

the second that the failure to use “proper fall protection techniques . . . could expose . . .

subcontractor employees to a fall that would result in certain death.” Other witnesses,

including representatives of LLC, concurred in this assessment.

       Though disputed, some expert evidence further illustrates that the devices actually

utilized by Jimmy (a lanyard and safety belt) were themselves hazardous or deficient. Had

he hung from them, he could have have broken his back or suffocated. That this

equipment was being used by Jimmy, without an independent lifeline, was known to LLC,

for its supervisor saw him utilizing it.

       Other evidence depicts LLC opting to allow each subcontractor to select and

implement its own safety measures. It believed that responsibility for the safety of an

independent contractor’s employees lay with the independent contractor, not LLC. So,

safety issues were left to the contractor, even though LLC employed an individual with

authority to monitor, regulate, and affect the safety practices of those subcontractors.

       In sum, we have before us evidence that LLC remained silent (while having a duty

to act) when Jimmy was performing a job 1) at such an altitude that a fall would result in

death and 2) with equipment inadequate to protect him from death should he fall. LLC did


                                             28
this while knowing that falls were not uncommon occurrences but rather major causes of

death at construction sites. From this evidence, a reasonable person could conclude that

LLC’s failure to provide adequate fall protection created an extreme and likely risk of

death. Thus, legally sufficient evidence supports the first prong.

                     ii.    Second Prong — Subjective Awareness and Conscious
                            Indifference

       As previously mentioned, to satisfy the second prong of Ellender, some evidence

must exist illustrating that the defendant knew of the extreme risk accompanying its activity

but did not care. We find that such evidence appears of record in several ways, the first

of which involves the testimony of LLC’s president. Again, he stated that falling was a

prime cause of injury, a major hazard to those working at the site, and likely to result in

death given the height at which KK’s employees would be working. Furthermore, the

individual hired by LLC to supervise the construction and the safety measures being

utilized saw Jimmy working without an independent lifeline some 120 feet above the

ground. This is of import because the LLC safety program required the use of “[l]ifelines,

safety belts, and lanyards . . . where there is a danger of falling.” (emphasis added).

Having seen Jimmy without an independent lifeline and despite LLC’s own regulations,

LLC’s vice-principal said and did nothing to curtail the activity.

       That this disregard comported with what could be perceived as a general policy of

disregarding safety risks posed to subcontractors finds support in other evidence. For

instance, the very same vice-principal alluded to above eschewed meeting with

subcontractors to discuss safety measures. Both he and LLC’s president simply believed



                                             29
that such matters were not LLC’s concern, even though it 1) represented to Methodist that

it would have plenary responsibility for the safety of everyone working at the project and

2) it required, via its “Safety Program,” that all employees (which included the vice-

principal) to insist that fellow employees follow safety rules and practices. From this, one

could reasonably infer that LLC consciously opted to forego performing those safety duties

(vis safety) which it not only told Methodist it would perform, but also told the jurors at

times that it had the power to perform.

       Moreover, evidence disclosed that LLC had other equipment which could have

made the performance of Jimmy’s duties safer. One such device was a swinging stage

scaffold. Evidence, though conflicting, indicated that while LLC employees were free to

use it, those employed by subcontractors were not. Instead, the latter were given the

option to rent it or acquire their own.

       From the foregoing, a rational jury could conclude that LLC was not only aware of

the grave risk in question but also that it opted to consciously disregard it. Thus, the

finding that LLC was grossly negligent enjoys legally sufficient evidentiary support. Our

conclusion is not altered by LLC’s contention that it exercised some care by its institution

of a safety program and retention of purported safety consultants. Reference to such

evidence is of little value when the question is one of legal sufficiency. This is so because

the standard of review obligates us to consider evidence supporting the verdict, not

contradicting it. See Mobil Oil Corp. v. Ellender, 968 S.W.2d at 924 (holding that Mobil’s

reference to some evidence of care did not affect the court’s legal sufficiency analysis).

              b.     Factual Sufficiency


                                             30
       That there existed evidence contradicting the jury’s finding of gross negligence is

beyond dispute. As alluded to in the previous paragraph, LLC presented some testimony

that it exercised care. Other testimony indicated that it believed the equipment utilized by

Jimmy was safe and complied with standards implemented by the Occupational Safety and

Health Administration. While this court may not have reached the same conclusion as that

of the jury had it been the fact finder, we are unable to say that the verdict was factually

insupportable. In other words, the evidence supporting the verdict was not insubstantial

or weak. Nor was that contradicting the verdict so overwhelming as to render the verdict

clearly wrong or manifestly unjust.

                               Summary Judgment in Favor of KK

       In its last point of error, LLC argues that the trial court erred in granting summary

judgment to KK and, thereby, denying it contribution and indemnity against KK. We

disagree.

       1.        Standard of Review

       The standard of review for assessing the validity of a summary judgment is well

known. We refer the litigants to Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796 (Tex.

1994), for discussion of same.

       2.        Application of Standard

       Upon suit by Jimmy’s kin, LLC initiated a cross-claim against KK for contribution and

indemnity. It did so based upon paragraph 11.7 of the subcontract.11 KK moved for


       11
            The provision states:

       To the fullest extent permitted by law, Subcontractor shall indemnify, hold harmless, and

                                                 31
summary judgment, arguing that section 408.001 of the Texas Labor Code insulated it from

liability and that paragraph 11.7 did not satisfy the express negligence rule. The trial court

granted the motion, but did not state the particular grounds upon which it did. Thus, our

task is to determine whether either ground supported the court’s action.                           Miller v.

Galveston/Houston Diocese, 911 S.W.2d 897, 899 (Tex. App.--Amarillo 1995, no writ).



               a.       Section 408.001

       Section 408.001 of the Labor Code states that the recovery of workers’

compensation benefits is the exclusive remedy available to an employee against his

employer (assuming that the employer subscribes to the Workers Compensation Act).

TEX . LAB . CODE ANN . § 408.001(a) (Vernon 1996). Since KK apparently subscribed to the

Act, both Jimmy and his kin were barred from suing it for compensatory damages. This

bar also had the incidental effect of shielding KK from suit by a third-party under common

law concepts of indemnity and contribution. See Varela v. American Petrofina Co. of

Texas, Inc., 658 S.W.2d 561, 561-63 (Tex. 1983) (denying a third-party defendant the

opportunity to obtain contribution and indemnity from the employer). Yet, the scope of the

shield is limited. It does not apply to situations where an employer expressly agreed, in

writing, to indemnify the third-party before the mishap giving rise to the need for indemnity



       defend Contractor . . . from and against all claims, damages, losses, and expenses . . .
       arising out of or resulting from the performance of Subcontractor’s Work . . . provided that
       any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness,
       disease, or death . . . and (b) is caused in whole or in part by any negligent act or omission
       of Subcontractor or anyone directly or indirectly employed by it or anyone for whose acts
       it may be liable . . . regardless of whether it is caused in part by a party indemnified
       hereunder.

                                                    32
occurred. Act of May 5, 1983, 68th Leg., R.S., ch. 131, § 1, 1983 Tex. Gen. Laws 613, 614

(amended 1989, 1993, current version at TEX . LAB . CODE ANN . § 417.004 (Vernon 1996));12

Enserch Corp. v. Parker, 794 S.W.2d 2, 7 (Tex. 1990); Faulk Mgt. Servs. v. Lufkin Indus.,

Inc., 905 S.W.2d 476, 478-79 (Tex. App.--Beaumont 1995, writ denied); Verson Allsteel

Press Co. v. Carrier Corp., 718 S.W.2d 300, 302-303 (Tex. App.--Tyler 1985, writ ref’d

n.r.e.). The agreement at bar was such an agreement.

       Via paragraph 11.7 of the subcontract, KK expressly committed to “indemnify . . .

and defend” LLC “ from and against all claims, damages, losses, and expenses . . . arising

out of or resulting from” the performance of KK’s work.                        The claims subject to

indemnification included those “attributable to bodily injury, sickness, disease, or death”

and “caused in whole or in part” by the negligence of KK, “regardless of whether . . . [LLC]

caused [it] in part.”

       That 11.7 was executed before Jimmy fell to his death is undisputed. Equally clear

is that it expressly mentions indemnification, the conditions which trigger the duty to

indemnify, the party obligated to provide indemnity, and the party to be indemnified.

Indeed, the clause at bar is not unlike those in Enserch, Faulk, and Verson which were

found to satisfy the statutory indicia. Each illustrated the requisite intent to indemnify in



       12
            The statute read:

       If an action for damages on account of injury to or death of an employee of a subscriber is
       brought . . . against a person other than the subscriber . . . and if such action results in a
       judgment against such other person . . . the subscriber . . . shall have no liability to
       reimburse or hold such other person harmless on such judgment . . . nor shall the subscriber
       . . . have any tort or contract liability for damages to such other person because of such
       judgment . . . in the absence of a written agreement expressly assuming such liability,
       executed by the subscriber prior to such injury or death.

                                                    33
specific terms. That none expressly mentioned that the duty to indemnify encompassed

damages arising from injury suffered by an employee of the indemnitor matters not, for

same is not necessary. Enserch Corp. v. Parker, 794 S.W.2d at 7-8; Verson Allsteel Press

Co. v. Carrier Corp., 718 S.W.2d at 302-303. So, as in Enserch, Verson, and Faulk, “the

indemnity language in the contract between” LLC and KK “is sufficient to show that . . .

[KK] expressly assumed liability for injuries to its own employees.” Enserch Corp. v.

Parker, 794 S.W.2d at 8. Yet, this does not end our inquiry.

              b.     Indemnity and/or Contribution Under Paragraph 11.7

       We next assess the scope of paragraph 11.7. In doing so, we immediately note that

nothing therein expressly mentions contribution or KK’s duty to contribute to the payment

of any award. Rather, the clause specifically obligates KK to “indemnify, hold harmless,

and defend” LLC. This is of moment because contribution and indemnity are distinct

concepts. The former connotes, as stated by the Texas Supreme Court long ago, a

proration of liability among joint tortfeasors. Gulf, C. & S. F. Co. v. Galveston, H. & S. A.

Co., 18 S.W. 956, 958-59 (Tex. 1892). On the other hand, it is commonly understood that

indemnity involves a shift in responsibility for payment of damages, Whitson v.

Goodbody’s, Inc., 773 S.W.2d 381, 382-83 (Tex. App.--Dallas 1989, writ denied), whereby

one pays the entire amount due by another. Gulf, C. & S. F. Co. v. Galveston, H. & S. A.

Co., 18 S.W. at 958-59. We conclude, for several reasons, that indemnification (as the

term is commonly understood) rather than contribution was what was intended by the

parties to the subcontract.




                                             34
       First, the words “indemnify, hold harmless, and defend,” when read together, evince

an intent to completely shift the entire responsibility for payment to another. Nothing in the

paragraph qualifies their scope once the duty to indemnify, hold harmless and defend is

triggered. Second, according to paragraph 11.7, the duty arises when, among other

things, the injury contemplated is caused by KK, in whole and part, and “regardless of

whether it . . . [was] caused in part by a party indemnified hereunder.” In other words, KK

is allegedly bound to reimburse LLC even for injuries LLC caused, as long as KK also

caused them in part. Simply put, there is no proration under these terms; instead, the

subcontractor is ultimately responsible for reimbursing LLC for everything. These indicia

compel us to hold that the obligation undertaken by KK was nothing short of pure

indemnification, as opposed to contribution or some mix of contribution and indemnity.

       So, because the subcontract says nothing about contribution and its terms evince

nothing of an intent to obligate KK to provide contribution, the only potential right of

contribution available to LLC would be that existent outside of the subcontract.

Nonetheless, LLC remains without succor in that circumstance, given Varela, which

negates the availability of all forms of non-contractual contribution in cases like that at bar.

See Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 752 (Tex. 1993) (reaffirming the

proposition that a third-party cannot seek contribution from a subscribing employer to

reduce the third-party’s responsibility to the employee). Therefore, and as a matter of law,

LLC had no right of contribution to assert via its cross-claim against KK, and the trial court

did not err in entering summary judgment denying LLC recovery upon the claim.




                                              35
        As to the matter of indemnity, we note the absence of any language expressing the

intent, through specific words, that KK would hold LLC harmless from injuries caused by

LLC’s own negligence. This is required before same can occur. As said by the Supreme

Court in Ethyl Corporation v. Daniel Construction Company, “parties seeking to indemnify

the indemnitee from the consequences of its own negligence must express that intent in

specific terms.” 725 S.W.2d 705, 708 (Tex. 1987); Enserch Corp. v. Parker, 794 S.W.2d

at 8 (reaffirming this principle, which is known as the express negligence rule). Because

paragraph 11.7 said nothing specifically about the negligence of LLC, the express

negligence rule was not satisfied. This, in turn, prevented LLC from obtaining indemnity

for injuries it caused in whole or part.13 Thus, the trial court did not err in denying LLC

indemnification from KK for injuries arising from LLC’s actions.

         Finally, we reject the suggestion of LLC that it was not attempting to recover

indemnity for the consequences of its own acts.                         The suggestion contradicts the

allegations in its cross-claim, where it averred that 1) “[s]hould . . . a jury find any

negligence, then Lee Lewis Construction is entitled to indemnity from KK Glass” and 2)


        13
           Though no case we have found clearly states it, we nevertheless interpret Ethyl and its progeny
as requiring the parties to actually include the word “negligence” or some synonym thereof in the
indemnification agreement before the express negligence rule is satisfied. We gather this from that portion
of Ethyl wherein the Supreme Court admonished parties to evince the pivotal intent through “specific terms.”
Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987); see Houston Lighting & Power Co. v.
Atchison, Topeka & Santa Fe Ry. Co., 890 S.W.2d 455, 457-59 (Tex. 1994) (applying the express negligence
rule to indemnification for claims involving strict liability and holding that the rule was not satisfied because
the parties did not mention the intent to cover strict liability in “specific terms”). So too is this interpretation
of the rule the only way in which the holdings of such cases as Glendale Constr. Servs., Inc. v. Accurate Air
Sys., Inc., 902 S.W.2d 536 (Tex. App.--Houston [1st Dist.] 1995, writ denied), can be explained. In Glendale,
the parties contemplated indemnification even for injuries caused by the indemnitee. Yet, the word
“negligence” went unmentioned. One would think that obligating the indemnitor to reimburse the indemnitee
for injuries caused by the indemnitee would be sufficient indication of an intent to include the negligence of
the indemnitee. But, the court said no and we can only explain it by concluding that the word “negligence”
must be stated.

                                                        36
“KK Glass should be obligated to defend Lee Lewis Construction and to pay for any and

all damages awarded in this case.” (emphasis added). In referring to “any” negligence

and “any and all damages,” LLC clearly wanted KK to pay for everything. In wanting KK

to pay for everything, it could hardly be said under any rational interpretation of the

pleading that LLC wanted KK to reimburse it only for the damages caused solely by KK.

      In addition, since paragraph 11.7 fails to satisfy the express negligence rule, LLC

could not seek indemnification for injuries concurrently caused by LLC and KK. Such right

of recovery is known as comparative indemnity and must arise via contract satisfying the

express negligence rule. Enserch Corp. v. Parker, 794 S.W.2d at 8; Ethyl Corp. v. Daniel

Constr. Co., 725 S.W.2d at 707. This left LLC to recovering for injuries solely caused by

KK. Yet, matters of sole causation are not the stuff of cross-claims. Rather, they are

defensive issues invoked to prevent a plaintiff from recovering against the one asserting

that the injuries were solely caused by someone or something else. Indeed, if the injuries

at bar were solely caused by KK, then there would be no need for LLC to obtain indemnity,

for they could not have been charged against LLC.

       Accordingly, the summary judgment granted KK Glass is affirmed. Next, the court

suggests, under Texas Rule of Appellate Procedure 46.3, that the $500,000 award

recompensing Jimmy Harrison for pain, suffering and mental anguish be remitted by

$450,000. Should the sum not be remitted, the judgment (save for the summary judgment

granted KK Glass) will be reversed. Should remittitur be timely filed, the judgment will be

reformed and affirmed as reformed.




                                            37
                Brian Quinn
                   Justice


Publish.




           38
