                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00254-CV


JAVIER LOPEZ                                                          APPELLANT

                                         V.

WILDCAT CRANES, INC.                                                    APPELLEE


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          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 048-258518-12

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      At the conclusion of Appellant Javier Lopez’s case-in-chief and after three

days of trial testimony, the trial court granted a directed verdict against Lopez on

his negligence claim against Appellee Wildcat Cranes, Inc. for personal injuries

that he sustained in a workplace accident. Because, viewed in the light most

      1
       See Tex. R. App. P. 47.4.
favorable to Lopez, more than a scintilla of evidence exists that Wildcat Cranes

was negligent and that Wildcat Cranes’s negligence was a proximate cause of

Lopez’s injuries––the grounds asserted by Wildcat Cranes for its directed

verdict—we will reverse the trial court’s judgment and remand this case to the

trial court for a new trial.

                               II. FACTUAL BACKGROUND

       The injuries occurred while Lopez was working as a welder on a demolition

project. The demolition required that a large steel beam be removed from the

building’s ceiling structure; Lopez was responsible for cutting one of the beams’

connected ends to free it for removal. The beam was about twenty-five feet

above the building’s roof’s surface, so Lopez used a scissor lift placed on the roof

to reach the beam. Another worker was ready to cut the beam’s other end as

soon as Lopez finished cutting his.

       The beam weighed thousands of pounds, requiring a crane to extract it.

Wildcat Cranes contracted to provide a crane, and its employee Jose Cavazos

operated the crane.        Cranes vary in capacity, and the one Wildcat Cranes

provided had a 12,000-pound capacity. Because the crane remained on street

level, Cavazos relied on the lift director Daniel Layne to estimate any beam’s

weight and to direct the extraction. Layne communicated the weight estimate to

Cavazos by radio, and Cavazos determined whether it fell within the crane’s

capacity.



                                         2
       To prevent beams from falling after they were cut, the crane would hold the

beam in place, applying a counterweight matching the estimated weight that was

expected to be unsupported when the beam was cut.           Layne estimated the

weight of the entire beam that Lopez had prepared to cut to be about 12,000

pounds, so he told Cavazos to apply a 6,000-pound counterweight. But Layne’s

estimate was flawed; he either underestimated the beam’s weight or overlooked

that it was not rigged to the crane near the end being cut. When Lopez cut the

beam, Cavazos immediately knew that “[s]omething was very wrong.” A large

“jolt” shook the crane, a safety alarm sounded, a warning light popped on, the

instrument dial showing the weight of the crane’s load in relation to its capacity

shot “past” the yellow zone, and the crane’s computer system “coded out,”

meaning the computer shut down as a safety measure in response to the crane’s

load. Cavazos felt the crane cab shaking “like football players shaking your car.”

       Meanwhile on the roof, the beam, upon being cut, fell about four feet, and

either because the beam snagged the safety lanyard connected to Lopez or

because the beam hit the raised scissor-lift platform, Lopez was thrown off the

platform. Lopez remained connected to the lift by his safety lanyard, preventing

him from falling the twenty-five feet to the roof; he dangled from the platform by

his lanyard, and he was able to climb back on the platform without any injury

from the fall.

       Cavazos did not know what was happening on the roof, but because the

crane was shaking and the alarms were going off, he radioed Layne, “What’s

                                        3
going on?” Layne responded, “Okay. Come up. Give me two clicks,” which is

about a one- to two-inch raise.       When Cavazos began raising the beam it

contacted the scissor lift, and the scissor lift toppled with Lopez on it. This time,

Lopez fell all the way to the roof, seriously injuring his shoulder.

        III. TRIAL COURT ERRED BY GRANTING WILDCAT CRANES’S MOTION
                            FOR DIRECTED VERDICT

      In a single issue, Lopez argues that the trial court erred by granting Wildcat

Cranes’s motion for directed verdict on negligence and proximate cause.

      A. Standard of Review and Law on Motions for Directed Verdict

      A directed verdict is proper only under limited circumstances: (1) when the

evidence is insufficient to raise a material fact issue or (2) when the evidence

conclusively establishes the right of the movant to judgment or negates the right

of the opponent. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29

S.W.3d 74, 77 (Tex. 2000); Farlow v. Harris Methodist Fort Worth Hosp., 284

S.W.3d 903, 919 (Tex. App.—Fort Worth 2009, pet. denied). In reviewing a

directed verdict, we follow the standards for assessing legal sufficiency of the

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We

review the evidence in the light most favorable to the person suffering the

adverse judgment, and we must credit favorable evidence if reasonable jurors

could and disregard contrary evidence unless reasonable jurors could not. Id. at

827; see also Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex.

2011). A directed verdict is improper if there is more than a scintilla of evidence


                                           4
on the grounds underlying the directed verdict. Coastal Transp. Co. v. Crown

Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004). More than a scintilla

exists when the evidence rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions. Id.

      Rule 268 of the Texas Rules of Civil Procedure provides that “a motion for

a directed verdict shall state the grounds therefore.” Tex. R. Civ. P. 268. This

requirement is designed to allow the movant’s opponent an opportunity to

introduce additional evidence to meet the grounds asserted for the directed

verdict and to aid the trial court in ruling on the motion. See, e.g., Billy Ray

Dickerson, Note, Appeal and Error––Practice and Procedure––Trial Practice––

Appellate Review of Motion for Directed Verdict Limited to Grounds Ruled on By

Trial Court—Burnett v. Howell, 294 S.W.2d 410 (Tex. Civ. App.—El Paso 1956,

writ ref’d n.r.e.), 35 Tex. L. Rev. 846, 847 (1957).

               B. Wildcat Cranes’s Motion for Directed Verdict

      Wildcat Cranes articulated the following grounds for its directed verdict

motion:

      At this time, the defendant would move for a directed verdict on the
      issue of negligence and proximate cause. I believe that there is no
      evidence or less than a scintilla of evidence that the negligence, if
      there is any—but certainly no evidence that anything the plaintiff has
      called negligence was the proximate cause of the accident.




                                          5
      Also, the fact that the plaintiff has come to court under false
      pretenses and is, I think, misusing the courts based on his status as
      illegal.[2]

               C. Evidence of Negligence and Proximate Cause

      Lopez pleaded that Wildcat Cranes was negligent in two ways: (1) by

using a crane lacking sufficient capacity for the demolition and (2) via Cavazos’s

continuation of crane operations upon realizing that the beam weighed more than

Layne had estimated. Lopez called four witnesses: Jason English, a safety

engineer who testified as an expert; Cavazos; Ron Wertz, the owner of Wildcat

Cranes; and Lopez. Wildcat Cranes obtained permission to call its own expert,

Jim Wiethorn, out of order during Lopez’s case in chief and relies heavily on his

testimony in support of its directed verdict.

      English testified that the crane lacked sufficient capacity to lift the beam. A

postaccident investigation revealed that the beam weighed, according to Wertz,

more than 12,000 pounds but “probably . . . no more than 13,000.” According to

Cavazos, the crane had an official maximum capacity of only 12,000 pounds. He

and Wertz, however, noted that the crane’s official capacity reflected only 85% of

      2
        To the extent that Wildcat Cranes asserts in its brief that it moved for a
directed verdict on legal (as opposed to evidentiary) matter-of-law issues, such
as no duty and the no-foreseeability element of duty, we disagree. Wildcat
Cranes’s motion for directed verdict, recited in toto above, requested a directed
verdict solely on two evidentiary matter-of-law issues––that no evidence existed
that it had engaged in any negligent act and that any negligent act by Wildcat
Cranes was not a proximate cause of Lopez’s injuries. Consequently, these are
the issues we address. Wildcat Cranes is free on remand to assert whatever
legal as-a-matter-of-law issues it desires in a motion for summary judgment or
otherwise.

                                          6
the crane’s real capacity; as explained by Wertz, “the United States . . . will only

let us use 85 percent of what the crane will really lift, so there is a 15 percent

buil[t]-in safety factor.”   In Wertz’s opinion, the crane could handle the lift.

English disagreed; he stated that “the crane itself was not a[n] appropriate

capacity for this particular lift.”   English also considered it improper to use a

12,000-pound capacity crane to lift a beam estimated to weigh 12,000 pounds,

which Layne had estimated the beam weighed. English asserted that Wildcat

Cranes should not have proceeded as far as it did with that load-capacity crane.

      English, Wertz, and Wiethorn all agreed that a company must train its

workers to stop a job when the workers know the job cannot go forward safely to

protect others from harm. Wertz and Wiethorn did not think Cavazos faced such

a situation when his crane’s alarms sounded. Wertz explained that the alarms

and computer responded to a “shock load,” which Cavazos defined as “a bunch

of weight” that hits the crane too fast, causing the crane’s boom to bounce.

According to Wertz and Wiethorn, shock loads are common and can result from

wind gusts alone. Wertz testified that employees can continue crane operations

once the shock load passes, and he saw no reason why Cavazos could not

proceed to lift the beam two clicks. Wiethorn distinguished a lift from the two

clicks Cavazos raised the beam, which he characterized as a “fine-tune

adjustment.”

      In contrast to Wertz and Wiethorn, English said that when the beam

dropped, Cavazos should have recognized “something’s not right” and

                                           7
reevaluated the entire lift before proceeding. English further stated that “instead

of stopping, [Cavazos] continued on with the lift, which ultimately knocked over

this scissor lift.”

       Cavazos testified that once the safety alarms activated, he had a

responsibility to contact Layne and inform him of “what’s going on.” Cavazos, as

well as Wiethorn, agreed that Cavazos did that.          Cavazos and Wiethorn

contended that once Cavazos informed Layne of the safety concerns, Layne had

the sole responsibility to decide whether to proceed. But Wertz affirmed during

cross-examination that the ultimate decision to proceed rested with Cavazos.

       It is common for a crane operator to feel some bump or drop when the

crane takes the weight of a beam. But Cavazos knew when Lopez cut the beam

that “[s]omething was wrong . . . [s]omething was very wrong.” And Cavazos,

who later testified that Layne had the responsibility of deciding whether to stop

operations or to proceed, acknowledged that in the type of situation he had

experienced on the day in question, he was supposed to stop the demolition and

to reevaluate rather than proceed. Cavazos did not stop operations.3




       3
        Wildcat Cranes argues otherwise, noting that Cavazos stopped long
enough for Lopez to climb back onto the scissor lift platform. But the stoppage
mandated according to English and according to some of Cavazos’s testimony is
not simply an inactive passage of time but the intentional cessation of operations
to allow workers to convene and reevaluate the entire lift.

                                        8
      Cavazos knew Lopez was on the roof cutting the beam, and it is

undisputed that the scissor lift toppled when Cavazos lifted the beam. Lopez’s

injuries stemmed from the scissor lift’s fall.

                  D. Law on Negligence and Proximate Cause

      Wildcat Cranes premised its motion for directed verdict on the evidentiary

issues of negligence and proximate cause, so we must determine whether the

evidence, viewed in the light most favorable to Lopez, would enable a jury to

reasonably find that Wildcat Cranes breached either of the two duties advanced

by Lopez and whether the breach, if any, proximately caused Lopez’s injury. See

Exxon Corp., 348 S.W.3d at 215; City of Keller, 168 S.W.3d at 827.

      Determination of whether a duty has been breached is purely a question of

fact. Aguirre v. Vasquez, 225 S.W.3d 744, 757 (Tex. App.—Houston [14th Dist.]

2007, no pet.); Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.—Dallas

2004, pet. denied). The two elements of proximate cause are cause in fact and

foreseeability. HMC Hotel Prop. II Ltd. P’ship v. Keystone-Tex. Prop. Holding

Corp., 439 S.W.3d 910, 913 (Tex. 2014). Cause in fact is established when the

act or omission was a substantial factor in bringing about the injuries, and without

it—i.e., but for the act or omission—the harm would not have occurred.

Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013).                Conduct

amounts to a substantial factor if it would lead reasonable people to regard it as a

cause. See Bostic v. Ga.-Pac. Corp., 439 S.W.3d 332, 337 (Tex. 2014). Cause

in fact is not established where the defendant’s negligence does no more than

                                           9
furnish a condition that makes injury possible. IHS Cedars Treatment Ctr. of

DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Generally, it is a

question for the jury. Farley v. M.M. Cattle Co., 529 S.W.2d 751, 756 (Tex.

1975), abrogated on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d

512 (Tex. 1978); J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Beeson,

835 S.W.2d 689, 698 (Tex. App.—Dallas 1992, writ denied); see Wal-Mart

Stores, Inc. v. Hoke, No. 14-99-00503-CV, 2001 WL 931658, at *8 (Tex. App.—

Houston [14th Dist.] Aug. 16, 2001, no pet.) (not designated for publication).

More than one cause in fact may exist for an injury. See Lee Lewis Constr., Inc.

v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001); Morrell v. Finke, 184 S.W.3d 257,

284 (Tex. App.—Fort Worth, 2005, pet. denied).

      Foreseeability exists when the actor as a person of ordinary intelligence,

should have anticipated the dangers his negligent act creates for others. D.

Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Moreover,

      foreseeability does not require that the actor foresee the particular
      accident or injury which in fact occurs. Nor does foreseeability
      require that the actor anticipate just how the injury will grow out of a
      particular dangerous situation. All that is required is that the injury
      be of such a general character as might reasonably have been
      anticipated.

Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223–24 (Tex. 1988) (citations

omitted); see City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex. 1987)

(“Foreseeability does not require that a person anticipate the precise manner in

which injury will occur once a negligent situation that he has created exists.”);


                                        10
Trinity River Auth. v. Williams, 689 S.W.2d 883, 886 (Tex. 1985) (“The issue

involved ‘is not what the wrongdoer believed would occur; it is whether he ought

reasonably to have foreseen that the event in question, or some similar event,

would occur.’” (quoting Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex. 1970)));

Motsenbocker v. Wyatt, 369 S.W.2d 319, 323 (Tex. 1963) (“All that is required is

‘that the injury be of such a general character as might reasonably have been

anticipated; and that the injured party should be so situated with relation to the

wrongful act that injury to him or to one similarly situated might reasonably have

been foreseen.’” (quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 35, 124

S.W.2d 847, 849 (1939))).

                     E. Application of the Law to the Facts

                                  1. Negligence

      Viewing the evidence in the light most favorable to Lopez, reasonable

jurors could find that Wildcat Cranes had acted negligently by using a 12,000-

pound capacity crane to hold a beam that Layne had estimated to weigh 12,000

pounds and that had, in fact, weighed over 12,000 pounds. Although the crane

held only part of the beam’s total weight because the beam’s other side was still

attached, English testified that the crane lacked sufficient capacity for the project

in general and that Wildcat Cranes should not have proceeded as far as it did

with that load-capacity crane. Wertz and Wiethorn disagreed, but a competition

between witnesses or experts is a fact and credibility question for the jury, which



                                         11
could reasonably disregard the contrary evidence.         See Exxon Corp., 348

S.W.3d at 215; City of Keller, 168 S.W.3d at 827.

      Alternatively, viewing the evidence in the light most favorable to Lopez,

reasonable jurors could find that Wildcat Cranes had acted negligently through its

employee Cavazos, who should not have continued operations after the crane

took on the beam’s weight because he “knew something was very wrong.”

Wildcat Cranes insists that once Cavazos informed Layne of the safety concerns,

Layne had the sole responsibility to decide whether to proceed. There is some

testimony supporting that position, namely Wiethorn’s testimony and part of

Cavazos’s testimony. Testimony supporting Lopez’s position also exists: Wertz

said that it was Cavazos’s decision on whether to proceed, and Cavazos testified

that his training required that he stop and reevaluate the lift before proceeding.

Disregarding the evidence contrary to Lopez because reasonable jurors could,

see City of Keller, 168 S.W.3d at 823, more than a scintilla of evidence supports

a finding that Cavazos breached his duty by failing to stop operations for a

reevaluation of the lift once the alarms alerted, rather than following Layne’s

directions to raise the beam.

                                2. Proximate Cause

      It is undisputed that the beam tipped the scissor lift when Cavazos lifted it,

satisfying the but-for component of causation.      See Rodriguez-Escobar, 392

S.W.3d at 113. That is, but for (1) Wildcat Cranes’s negligent act in failing to

provide a crane with a load capacity that would prevent the unexpected four-foot

                                        12
drop of the beam and (2) Cavazos’s failure to stop operations when he knew

something was very wrong, the incident would not have occurred.

      Wildcat Cranes nonetheless identifies on appeal other circumstances that

it alleges were a new and independent or superseding cause of the incident,

such as the beam’s being lodged under the scissors-lift platform and Layne’s

instruction to raise the beam. Because more than one cause in fact may exist for

an injury, a reasonable juror could agree that these variables contributed to the

incident and nevertheless still find that Wildcat Cranes’s negligent acts were a

substantial factor in causing the scissor lift to tip and without which the harm

would not have occurred. See Harrison, 70 S.W.3d at 784; Morrell, 184 S.W.3d

at 284.

      To the extent that Wildcat Cranes argues on appeal that these variables––

the beam’s being lodged under the scissors-lift platform and Layne’s instruction

to raise the beam––constitute new and independent or superseding causes of

the incident that destroyed any casual connection between Wildcat Cranes’s

negligence and the incident in question, a new and independent or superseding

cause that is reasonably foreseeable by the defendant does not break the chain

of causation. See James v. Kloos, 75 S.W.3d 153, 161 (Tex. App.—Fort Worth

2002, no pet.) (also listing factors to consider in determining whether an act is a

new and independent or superseding cause); see also Columbia Rio Grande

Healthcare, LP v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009) (citing Dallas Ry. &

Terminal Co. v. Bailey, 151 Tex. 359, 367, 250 S.W.2d 379, 383–84 (1952)).

                                        13
Viewing the evidence in the light most favorable to Lopez, reasonable jurors

could also find that the general character of the injury to Lopez was foreseeable

and that this event or some similar event was foreseeable as the result of Wildcat

Cranes’s alleged negligence in deciding to utilize the load-capacity crane that it

did for this job and through its employee Cavazos who did not stop operations

and reevaluate the lift when he should have. See, e.g., Brown, 764 S.W.2d at

223–24; Pike, 727 S.W.2d at 517; Trinity River Auth., 689 S.W.2d at 886. When

Lopez cut the beam, the crane’s safety alarm sounded, a warning light popped

on, the instrument dial showing the weight of the crane’s load in relation to its

capacity shot “past” the yellow zone, and the crane’s computer system “coded

out”; thus, Cavazos knew that “[s]omething was very wrong.” Although Cavazos

could not see Lopez or the events unfolding on the roof, Cavazos knew that

Lopez was cutting the beam, that Lopez was close enough to the beam to be

cutting it, that the beam weighed thousands of pounds, and that the beam had

dropped unexpectedly. Cavazos nevertheless proceeded to lift the beam, which

was contrary to his training requiring him to stop operations and to reevaluate the

lift. It was foreseeable that using the crane to lift the beam, which had already

shifted unexpectedly, created a dangerous situation for someone like Lopez who

was standing on a raised platform near the beam. Viewing the evidence in the

light most favorable to Lopez, see Exxon Corp., 348 S.W.3d at 215; City of

Keller, 168 S.W.3d at 827, and disregarding the contrary evidence because

reasonable jurors could, Lopez’s injury was foreseeable.         See Brown, 764

                                        14
S.W.2d at 223–24; Pike, 727 S.W.2d at 517; Trinity River Auth., 689 S.W.2d at

886; Clark, 452 S.W.2d at 440; Motsenbocker, 369 S.W.2d at 323; Carey, 133

Tex. at 35, 124 S.W.2d at 849.

                                  F. Summary

      Viewing the evidence in the light most favorable to Lopez and disregarding

all contrary evidence because reasonable jurors could, more than a scintilla of

evidence exists that Wildcat Cranes used a crane lacking sufficient capacity for

the lift and that Cavazos should have stopped operations. See Exxon Corp., 348

S.W.3d at 215; City of Keller, 168 S.W.3d at 827. Viewing the evidence in the

light most favorable to Lopez and disregarding all contrary evidence because

reasonable jurors could, more than a scintilla of evidence exists that Lopez’s

injuries were a foreseeable consequence of Wildcat Cranes’s negligence. See

Brown, 764 S.W.2d at 223–24; Pike, 727 S.W.2d at 517; Trinity River Auth., 689

S.W.2d at 886; Clark, 452 S.W.2d at 440; Motsenbocker, 369 S.W.2d at 323;

Carey, 133 Tex. at 35, 124 S.W.2d at 849. We therefore sustain Lopez’s first

issue.4




      4
        In a separate issue, Lopez challenges the trial court’s directed verdict to
the extent it was based on Lopez’s status an illegal immigrant. Because our
ruling on Lopez’s first issue is dispositive, we need not consider his second
issue. See Tex. R. App. P. 47.1 (requiring appellate court to address only issues
necessary for disposition of the appeal). Our failure to reach this issue, however,
is not to be construed as approving Wildcat Cranes’s arguments in the trial court
that Lopez was not entitled to relief based on his immigration status.

                                        15
                                IV. CONCLUSION

      Having sustained Lopez’s first issue, we reverse the trial court’s directed

verdict and judgment for Wildcat Cranes.      We remand the case for further

proceedings consistent with this opinion.

                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: July 30, 2015




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