                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                              February 22, 2006
                         FOR THE FIFTH CIRCUIT
                         _____________________             Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40043
                         _____________________

ROBERT PUSTKA,
                                                 Plaintiff - Appellee,

                                versus

PRINTPACK INC.,

                                           Defendant - Appellant.
__________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 1:03-CV-1452
_________________________________________________________________

Before JOLLY, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Printpack asserts that Pustka admits the pallet in question

arrived at his line with no instability; thus, Printpack concludes

that any injury-causing instability was caused solely by Pustka’s

actions.   We have examined the transcript, and we are satisfied

that there was sufficient evidence to support the jury’s verdict

against Printpack.

     1) Although Pustka perceived no instability when the pallet

was first delivered, there is testimony that the pallet held three

rolls with a total weight of more than twice the average and with

one of the rolls overhanging the edge of the pallet; that, after

*
 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
cutting the band that stabilized the rolls on the pallet and

removing the largest of the three rolls, Pustka observed the

remaining rolls leaning and attempted to correct the instability;

and that the leaning was indicative of negligent loading of the

pallet.

     2) Pustka and his co-workers testified that rules prohibiting

a worker from moving heavy loads without assistance from another

worker or a mechanical device were frequently ignored, even in the

presence of supervisors, and that no disciplinary action was ever

taken.    As the District Court noted, Printpack’s “only attempt to

rebut this devastating testimony was to call a very low level

supervisor,”   whose   testimony   the   jury    could   reasonably   have

discredited.

     This case was fully tried to a jury and substantively reviewed

by the District Court on a motion for directed verdict.        Making all

reasonable inferences in favor of Pustka, and refraining from re-

weighing evidence and witness credibility, we find sufficient

evidence in the record to allow a rational jury to conclude that

Pustka’s injury was proximately caused either by negligence in

loading the pallet or by negligent enforcement of the safety rule

prohibiting solo manhandling of rolls.          Under Texas law, this is

sufficient to render judgment against Printpack, a non-subscriber

to Texas’s worker’s compensation program.           The judgment of the

District Court is

                                                               AFFIRMED.

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