
                                                                                    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, ET AL,
APPELLEES                                                      §     NACOGDOCHES COUNTY, TEXAS
                                                                                                                                                            
MEMORANDUM OPINION
            Joe Collins appeals the jury verdict entered in favor of Appellees 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 project 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 girders


 fell over
onto Collins and injured him.
            Collins filed suit against Kingham, Eastex, and Searcy seeking damages for premises
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 testimony
 and Collins’s objection are contained in the
following excerpt: 
 
            Q           You just answered a question, and you said that you heard from one of the
electricians that these thing[s] happened this way and that way.  I really didn’t
understand that answer.
 
              A           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.
 
              Q           Okay.  But my question is, first of all, you were able to communicate with this other
fellow because he spoke Spanish like you do?
 
              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 a present 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 of responsibility.  See Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 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 of the defendant.); Restatement (Second) of
Torts § 341 (1965).  We conclude that Flores’s testimony had no bearing on the jury’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
case
 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-producing work on the
premises.  As Question 1 did not address the element of ownership or possession by virtue of control
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
Kingham and Eastex.  As set forth above, Collins has conceded that the evidence supports a premises
liability finding, but not a finding related to negligent activity.  Yet even assuming arguendo 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 of premises 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)
