Garry L. Rollins and Carla D. Rollins v. Texas College and MPF Investments, LLC D/B/A \"A-1 Rent All\" ( 2015 )


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  •                                                                           ACCEPTED
    12-15-00121-CV
    TWELFTH COURT OF APPEALS
    TYLER, TEXAS
    10/15/2015 9:45:20 PM
    Pam Estes
    CLERK
    No. 12-15-00121-CV
    _____________________________________________________________
    FILED IN
    12th COURT OF APPEALS
    IN THE COURT OF APPEALS        TYLER, TEXAS
    FOR   THE TWELFTH DISTRICT OF TEXAS
    10/15/2015 9:45:20 PM
    TYLER, TEXAS               PAM ESTES
    Clerk
    _____________________________________________________________
    GARRY L. ROLLINS AND CARLA D. ROLLINS,
    Appellants
    V.
    TEXAS COLLEGE AND
    MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
    Appellees
    _____________________________________________________________
    Appeal from Cause No. 13-3353-A
    In the 7th District Court of Smith County, Texas
    _____________________________________________________________
    BRIEF of APPELLANTS
    GARRY L. ROLLINS AND CARLA D. ROLLINS
    _____________________________________________________________
    Sigmon Law, PLLC
    Ernesto D. Sigmon
    State Bar No. 24010397
    2929 Allen Parkway, Suite 200
    Houston, Texas 77019
    214/395-1546 (Telephone)
    713/485-6056 (Facsimile)
    esigmon@esigmon.com
    ORAL ARGUMENT REQUESTED
    No. 12-15-00121-CV
    _____________________________________________________________
    IN THE COURT OF APPEALS
    FOR THE TWELFTH DISTRICT OF TEXAS
    TYLER, TEXAS
    _____________________________________________________________
    GARRY L. ROLLINS AND CARLA D. ROLLINS,
    Appellants
    V.
    TEXAS COLLEGE AND
    MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
    Appellees
    _____________________________________________________________
    IDENTITY OF THE PARTIES AND COUNSEL
    _____________________________________________________________
    APPELLANTS:
    Garry L. Rollins
    Carla D. Rollins
    ATTORNEYS FOR APPELLANTS:
    Trial Counsel
    Ernesto D. Sigmon
    State Bar No. 24010397
    SIGMON LAW, PLLC
    2929 Allen Parkway, Suite 200
    Houston, Texas 77019
    214/395-1546 (Telephone)
    713/485-6056 (Facsimile)
    esigmon@esigmon.com
    Appellate Counsel
    Ernesto D. Sigmon
    State Bar No. 24010397
    SIGMON LAW, PLLC
    416 West Saulnier Street
    2929 Allen Parkway, Suite 200
    Houston, Texas 77019
    214/395-1546 (Telephone)
    713/485-6056 (Facsimile)
    esigmon@esigmon.com
    FIRST APPELLEE:
    Texas College
    ATTORNEYS FOR APPELLEE, TEXAS COLLEGE
    Trial Counsel:
    Mr. Trey Yarbrough
    YARBROUGH WILCOX GUNTER, PLLC
    100 East Ferguson, Suite 1015
    Tyler, Texas 75702
    Telephone: (903) 595-3111
    Facsimile: (903) 595-0191
    Lead Appellate Counsel:
    Greg Smith
    Texas Bar No. 18600600
    Nolan D. Smith
    Texas Bar No. 24075632
    RAMEY & FLOCK, P.C.
    100 E. Ferguson, Suite 500
    Tyler, Texas 75702
    Telephone: 903-597-3301
    Facsimile: 903-597-2413
    Associate Appellate Counsel:
    Mr. Trey Yarbrough
    YARBROUGH WILCOX GUNTER, PLLC
    100 East Ferguson, Suite 1015
    Tyler, Texas 75702
    Fax: 903.595.0191
    SECOND APPELLEE:
    MPF Investments, LLC, d/b/a "A-1 Rent All"
    ATTORNEYS FOR APPELLEE, MPF INVESTMENTS
    Trial Counsel:
    Todd M. Lonergan
    Texas Bar No. 12513700
    lonergan@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
    808 Travis, 20th Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    Ryan K. Geddie
    Texas Bar No. 24055541
    geddie@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
    Tollway Plaza One
    16000 N. Dallas Parkway, Suite 800
    Dallas, Texas 75248
    (214) 420-5500 – Telephone
    (214) 420-5501 – Facsimile
    Lead Appellate Counsel:
    Levon G. Hovnatanian
    Texas Bar No. 10059825
    hovnatanian@mdjwlaw.com
    lonergan@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON &
    WISDOM, L.L.P.
    808 Travis, 20th Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    Associate Appellate Counsel:
    Todd M. Lonergan
    Texas Bar No. 12513700
    lonergan@mdjwlaw.com
    808 Travis, 20th Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    Ryan K. Geddie
    Texas Bar No. 24055541
    geddie@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON &
    WISDOM, L.L.P.
    Tollway Plaza One
    16000 N. Dallas Parkway, Suite 800
    Dallas, Texas 75248
    (214) 420-5500 – Telephone
    (214) 420-5501 – Facsimile
    TRIAL COURT:
    Cause No. 13-3353-A
    7th District Court of Smith County, Texas
    Honorable Kerry L. Russell, Presiding
    CONTENTS
    INDEX OF AUTHORITIES ...............................................VII
    STATEMENT OF THE CASE.............................................. 1
    1. STATEMENT OF PROCEDURAL HISTORY ................. 1
    2. STATEMENT OF JURISDICTION ............................... 5
    STATEMENT REGARDING ORAL ARGUMENT ................... 6
    ISSUES PRESENTED ........................................................ 7
    1. Whether the Trial Court Erred in Granting the Motion
    for Summary Judgment of Texas College and Its
    Underlying Objections to Evidence. .......................... 7
    i
    2. Whether the Trial Court Erred in Granting the Motion
    for Summary Judgment of MPF and Its Underlying
    Objections to Evidence. ........................................... 7
    3. Whether the Trial Court Abused Its Discretion in
    Refusing to Re-Open the Evidence. .......................... 7
    STATEMENT OF FACTS ................................................... 8
    1. SUMMARY................................................................ 8
    2. LITIGATION FACTS. ................................................. 8
    3. CASE FACTS .......................................................... 10
    ii
    SUMMARY OF THE ARGUMENT ..................................... 31
    ARGUMENT ................................................................... 32
    1. STANDARD OF REVIEW.......................................... 32
    iii
    2. THE TRIAL COURT ERRED IN GRANTING TEXAS
    COLLEGE’S TRADITIONAL AND NO EVIDENCE
    MOTION FOR SUMMARY JUDGMENT..................... 39
    1. Duty and Breach of Duty ................................ 41
    a) Ordinary Care ............................................. 44
    b) Duty to provide assistance .......................... 44
    c) No Duty to Warn ......................................... 45
    d) Negligent Supervision, Negligent Training ... 47
    e) No Duty to Provide Unnecessary Assistance 48
    f) No evidence that the work is unusually
    precarious .................................................. 49
    g) No evidence that the job required specialized
    training ...................................................... 50
    h) No evidence that additional personnel were
    necessary ................................................... 50
    i) No obligation to dissuade ............................ 51
    2. Proximate Cause............................................. 52
    iv
    a) Generally .................................................... 52
    b) Medical Causation ...................................... 54
    1. Bracken’s Deposition Excerpts ....................... 58
    2. Owner’s Manual .............................................. 58
    3. Rollins Affidavit ............................................. 59
    4. Barnett Letter ................................................ 60
    3. THE TRIAL COURT ERRED IN GRANTING MPF’S
    MOTION FOR SUMMARY JUDGMENT..................... 64
    1. Duty ............................................................... 65
    2. Breach of duty ................................................ 67
    3. Proximate Cause............................................. 68
    1. Owner’s Manual .............................................. 69
    2. Rollins Affidavit ............................................. 71
    v
    3. Thorpe Affidavit ............................................. 72
    4. The ANSI Standard and "Statement of Best
    Practices” ...................................................... 75
    CONCLUSION AND PRAYER ........................................... 76
    CERTIFICATE OF COMPLIANCE ..................................... 78
    CERTIFICATE OF SERVICE............................................ 79
    vi
    INDEX OF AUTHORITIES
    CASES
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (Tex. 2015) ........ 46, 48
    City of Dallas v. Furgason, 05-06-00875-CV, 
    2007 WL 2703134
    (Tex. App.—Dallas Sept. 18, 2007, no pet.) ................................ 55
    City of Houston v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    (Tex.1979) ................................................................................. 32
    Cotton Patch Cafe v. McCarty, 2-05-082-CV, 
    2006 WL 563307
    (Tex.
    App.—Fort Worth Mar. 9, 2006, no pet.).................................... 55
    Cunningham v. Columbia/St. David's Healthcare System, L.P.,
    185S.W.3d 7 (Tex.App.-Austin 2005) ................................... 73, 74
    Daugherty v. S. Pac. Transp. Co., 
    772 S.W.2d 81
    (Tex. 1989) ........ 75
    Dawson v. Briggs, 
    107 S.W.3d 739
    (Tex. App.—Fort Worth 2003, no
    pet.) .......................................................................................... 55
    Desiga v. Scheffey, 
    874 S.W.2d 244
    (Tex.App.—Houston [14th Dist.]
    1994, n.w.h.) ....................................................................... 37, 38
    Figueroa v. Davis, 
    318 S.W.3d 53
    (Tex. App.—Houston [1st Dist.]
    2010, no pet.) ............................................................................ 55
    vii
    Goodwin v. Bluffton Coll., 2004-Ohio-2223 ................................... 65
    Grey Wolf Drilling Co., L.P. v. Boutte, 
    154 S.W.3d 725
    (Tex. App.—
    Houston [14th Dist.] 2004) ........................................................ 55
    Gutierrez v. Gutierrez, 
    86 S.W.3d 729
    (Tex.App. -El Paso 2002) .... 74
    Halliburton Oil Well Cementing Co. v. Groves, 
    308 S.W.2d 919
    (Tex.
    Civ. App. 1957) ......................................................................... 54
    Hernandez v. Brinker Int'l, Inc., 
    285 S.W.3d 152
    (Tex. App. 2009) . 33
    Hill v. Melton, 
    311 S.W.2d 496
    (Tex.Civ.App.--Dallas 1958, writ
    dism'd.) ..................................................................................... 64
    Hubenak v. San Jacinto Gas Transmission Co., 
    141 S.W.3d 172
    (Tex. 2004) ................................................................................ 60
    In re Hawk, 
    5 S.W.3d 874
    (Tex.App.-Houston [14 Dist.] 1999) ...... 64
    In re Prot. of H.W., 
    85 S.W.3d 348
    (Tex. App. Tyler 2002) .............. 36
    Kroger Co. v. Elwood, 
    197 S.W.3d 793
    (Tex. 2006.) ....................... 42
    Kroger Co. v. Keng, 
    23 S.W.3d 347
    (Tex. 2000) ............................. 41
    Kroger Co. v. Milanes, No. 14-13-00873-CV, 
    2015 WL 4594098
    (Tex.
    App. July 30, 2015) ............................................................. 52, 53
    Lawrence v. Coastal Marine Serv. of Texas, Inc., 
    983 S.W.2d 757
    (Tex. App. 1997) ........................................................................ 65
    viii
    Lifestyle Mobile Homes v. Ricks, 
    653 S.W.2d 602
    (Tex. App.-
    Beaumont 1983, writ ref'd n.r.e.)).............................................. 36
    McEachern v. Glenview Hosp., Inc., 
    505 S.W.2d 386
    (Tex. Civ. App.
    1974), writ refused NRE (June 12, 1974) ................................... 49
    McKee v. Patterson, 
    153 Tex. 517
    , 
    271 S.W.2d 391
    (1954) abrogated
    by Parker v. Highland Park, Inc., 
    565 S.W.2d 512
    (Tex. 1978)) ... 51
    McRoy v. Riverlake Country Club, Inc., 
    426 S.W.2d 299
    (Tex.Civ.App.
    -Dallas 1968) ............................................................................ 63
    Morgan v. Compugraphic Corp., 
    675 S.W.2d 729
    (Tex. 1984) ......... 55
    Nixon v. Mr. Property Management, 
    690 S.W.2d 546
    (Tex.1985) .... 34
    Rea v. Cofer, 
    879 S.W.2d 224
    (Tex. App. 1994) ............................. 37
    Swilley v. Hughes, 
    488 S.W.2d 64
    (Tex.1972) ............................... 32
    Wal-Mart Stores, Inc. v. Seale, 
    904 S.W.2d 718
    (Tex.App. -San
    Antonio 1995) ..................................................................... 67, 76
    Word of Faith World Outreach v. Oechsner, 
    669 S.W.2d 364
    (Tex.App.-Dallas 1984, no writ) ................................................. 63
    Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-00290-CV, 
    2013 WL 6797871
    (Tex. App. Tyler, Dec. 20, 2013), review denied (Aug. 22,
    2014) .................................................................................. 32, 35
    ix
    STATUTES
    Tex. Gov't Code Ann. § 22.220 ........................................................ 5
    Tex. Labor Code Ann. § 406.033 ................................................... 41
    OTHER AUTHORITIES
    ANSI’s STATEMENT OF BEST PRACTICES OF GENERAL TRAINING AND
    FAMILIARIZATION FOR AERIAL WORK PLATFORM EQUIPMENT, February
    2010 ......................................................................................... 75
    RULES
    Tex. R. Civ. P. 1 ............................................................................ 64
    Tex. R. Civ. P. 193.6(b) ................................................................. 72
    Tex. R. Civ. P. 270 ........................................................................ 62
    Tex. R. Ev. 201 ............................................................................. 76
    Tex. R. Ev. 803(4) ......................................................................... 59
    Tex. R. Ev. 901 ............................................................................. 60
    REGULATIONS
    A92.6, AMERICAN NATIONAL STANDARD FOR SELF-PROPELLED ELEVATING
    WORK PLATFORMS ............................................................ 66, 67, 75
    x
    CONSTITUTIONAL PROVISIONS
    Tex. Const. art. V, § 6 ..................................................................... 5
    xi
    STATEMENT OF THE CASE
    1.    STATEMENT OF PROCEDURAL HISTORY
    This is a non-subscriber suit for a work related injury.
    Plaintiffs/Appellants, Gary Rollins and Carla Rollins filed suit on
    December 20, 2013. (CCR 1: 1-5.)1 Appellants shall be referred to
    as “Rollins” and “Mrs. Rollins” respectively, and “Mr. and Mrs.
    Rollins,” “plaintiffs” or “appellants” collectively).
    SUMMARY JUDGMENT
    Defendant/Appellee, MPF Investments, LLC, d/b/a "A-1 Rent
    All" (hereinafter “MPF”) filed a motion for summary judgment on
    January 15, 2015. (CCR 2:104–248.) On the very same day defendant
    Texas College (hereinafter “TC”) filed a motion for summary
    1  The original clerk’s record (herein cited as “CR”) was missing bookmarks
    and was not text searchable. It was also missing certain designated records. As
    a result of requests for supplementation and a motion to correct the record, the
    trial clerk filed a supplemental record (herein cited as “SR”) and a “corrected”
    clerk’s record (herein cited as “CCR”). The “corrected” record was filed with
    volumes 2 and 3 containing the same pages, volume 12 completely missing,
    certain missing pages and several pages out of order. As a result, it is necessary
    to refer to the original record (CR) at times. Since the page numbers in the CR
    and the CCR are the same, the court can consult the CCR unless it finds a
    necessary page missing, in which case it will have to consult the non-searchable
    CR.
    1
    judgment. (CCR 4:249-5:497.) Mr. and Mrs. Rollins filed a response
    to TC’s summary judgment motion on February 4, 2015 (CR 6:815-
    22:3234) and a response to MPF’s summary judgment motion on
    February 6, 2015. (CR 22:3241 -24:3474.)
    TC filed a summary judgment reply on February 12, 2015 (CCR
    21: 3512–3645) and MPF filed a summary judgment reply on
    February 13, 2015 (CCR 22:3701–3736).      MPF’s reply included a
    series of objections and request to strike plaintiffs’ summary
    judgment evidence.
    MOTIONS TO STRIKE
    During the pendency of the summary judgment motions, MFP
    and TC filed a joint motion to strike Rollins’ designation of Burt
    Thorpe, a safety expert, on January 23, 2015. (CCR 5:508 – 567.)
    Appellants filed a response on February 3, 2015. (CCR 6:700 – 746.)
    MFP filed a reply on February 9, 2015. (CCR 21: 3475-3484.) Rollins
    filed a sur-reply (erroneously titled “reply”) on the same day (CCR
    21:3485-3495.)
    On January 26, 2015, MPF and TC also filed a joint motion
    requesting that “the reports and any opinions” of Gilbert Martinez,
    Joe G. Gonzales, and Thomas M. Roney - a neuropsychologist,
    2
    medical doctor, and economist, respectively.              (CCR 6:568-699.)
    Rollins filed a response on February 3, 2015. (CCR 6:747 -7:813.) A
    joint reply was filed on February 6, 2015 (CCR 20:3235-3239.)
    On February 13, 2014 TC filed objections and a motion to strike
    evidence and references in Rollins’ responses to TC’s motion for
    summary judgment. (CCR 22:3666 – 3700.) Rollins filed a response
    on February 13, 2015. (CCR 22:3737 – 23:3922.)
    THE FEBRUARY 19 ORDERS
    On February 19, 2015, the trial court issued a series of orders
    relating to the summary judgments and the evidence.                  The court
    granted the joint motion to strike the designation of Rollins’ liability
    expert, Burt Thorpe, (CCR 24:3923). The court also granted nearly
    all   of   the   requests   to   strike   portions   of   Rollins’    affidavit.
    (CCR 24:3925-3934.)         The court also sustained the objections to
    summary judgment evidence set forth in MPF’s summary judgment
    reply. (CCR 24:3936-3937.) However, the court denied the joint
    motion to strike the reports and opinions of Gilbert Martinez, Joe G.
    Gonzales, and Thomas M. Roney. (CCR 24:3924.) Finally, the court
    granted TC’s motion for summary judgment (CCR 24:3935), and
    granted MPF’s motion for summary judgment (CCR 24:3938).
    3
    RECONSIDERATION
    On February 24, 2015 Mr. and Mrs. Rollins filed an emergency
    motion to reopen the evidence. (CCR 24:3939 – 4027.) On the same
    day Mr. and Mrs. Rollins also filed a motion to reconsider regarding
    TCs motion for summary judgment.        (CCR 24:4028 – 4136)     On
    March 2, 2015 they also filed a motion to reconsider MPF’s motion
    for summary judgment. (SR 10-23).
    On March 9, 2015, TC filed a response to the emergency motion
    to reopen the evidence. (CCR 25:4151-4163.) On March 11, 2015,
    TC filed a response to the motion to reconsider. (CCR 25: 4164 –
    4170.) On March 12, 2015, MPF filed its response to the emergency
    motion to reopen the evidence. (CCR 25:4171 – 4176).
    On March 17, 2015, the court below, denied Mr. & Mrs. Rollins’
    motion for reconsideration of the TC summary judgment (SR 7), and
    also denied their motion to reopen the evidence (SR 8).
    On April 10, the Court below denied Rollins’ motion for
    reconsideration of the MPF summary judgment. (CCR 25:4180.)
    A notice of appeal was filed on May 8, 2015. (CCR 25:4181-
    4183) The clerk’s record was filed (incorrectly) on June 9, 2015. A
    supplemental record was filed on September 2, 2015. A “corrected”
    4
    record (with significant omissions) was filed on September 15, 2015.
    Due to the fact that the trial court held no oral hearings before ruling
    to strike the evidence and grant summary judgment, there is no
    reporter’s record.
    2.   STATEMENT OF JURISDICTION
    This Court has jurisdiction under Tex. Const. art. V, § 6
    and Tex. Gov't Code Ann. § 22.220.
    5
    STATEMENT REGARDING ORAL ARGUMENT
    No oral argument was had in the court below.          Appellants
    believe the lack of oral argument contributed to the erroneous rulings
    of the lower court. The orders of dismissal contain no discussion of
    the testimony as they relate to the elements of the claims. Also, the
    court below has stricken factual statements made in the affidavit of
    an unsophisticated lay witness, plaintiff/appellant, Garry Rollins.
    They were stricken because the lower court believed they were either
    inconsistent with his deposition testimony, or simply beyond his
    competence.
    Oral questioning of counsel will be the most effective way for
    this Court to extract a detailed and accurate presentation of the
    parties’ arguments on consistency (or inconsistency) of the evidence.
    Oral argument will thus emphasize and clarify the written
    arguments, significantly aiding the decisional process of this Court.
    6
    ISSUES PRESENTED
    1.   Whether the Trial Court Erred in Granting the Motion for
    Summary Judgment of Texas College and Its Underlying
    Objections to Evidence.
    2.   Whether the Trial Court Erred in Granting the Motion for
    Summary Judgment of MPF and Its Underlying Objections
    to Evidence.
    3.   Whether the Trial Court Abused Its Discretion in Refusing
    to Re-Open the Evidence.
    7
    STATEMENT OF FACTS
    1.   SUMMARY
    Gary Rollins was injured when he “blacked out” and fell during
    an attempt to dismount from the platform of a “scissor lift.” Over his
    own protest, he had been ordered to “get up there” and patch the
    high ceiling of a gymnasium. Defying all common sense, his direct
    supervisors ordered him “up there” knowing that he suffered from
    a fear of heights and “syncope,” a condition which causes
    frequent and unpredictable loss of consciousness. Moreover, he
    had not received training or instruction on the use of the lift.
    2.   LITIGATION FACTS.
    Despite its simplicity, the case below was hotly contested by
    Texas College, a non-subscriber to the workers compensation
    system, and TC’s co-defendant. From the beginning the case was
    burdened with numerous aggressive filings -- special exceptions,
    motions to compel, motions to strike evidence, and motions for
    summary judgment. (CCR passim).
    8
    Eventually, the case reduced to two (2) summary judgment
    motions and a number of supporting motions to strike evidence. On
    February 19, 2015 the trial court simultaneously issued orders on
    all of the pending motions.
    The court sustained numerous objections to many parts of the
    summary     judgment     evidence       (CCR   24:3936-3937.),   expert
    designations (CCR 24:3923), and certain parts of Mr. Rollins’ affidavit
    (CCR 24:3925-3934.) – which required redaction. However, as will
    be shown below, the striking of the various parts of the evidence
    was truly inconsequential. What survived, was ample summary
    judgment evidence.
    Preserving some significant evidence, the trial court denied
    defendants’ request to strike expert reports of certain doctors (CCR
    24:3924).   These reports had been incorporated by reference into
    appellants’ responses to requests for disclosures.      The disclosure
    responses were specifically used as summary judgment evidence.
    (CCR 2:109) (See reference to Exhibit “H”).
    Without oral hearing, the trial court granted the motions for
    summary judgment.
    9
    An attempt was made here to draft this statement using only
    information from materials on file and documents referenced by the
    parties which were not stricken at the time of the February 19 orders.2
    These facts do not contain materials submitted on reconsideration or
    on the request to re-open the evidence. These facts were not stricken
    and were specifically allowed by trial court when it granted the
    summary judgments:
    3.    CASE FACTS
    GARY ROLLINS, TEXAS COLLEGE, AND MPF
    Gary Rollins worked “at Texas College as a maintenance Tech
    and Supervisor for about six years.” (CCR 25:4131). He is 55 years
    old. (CCR 3:234). He supervised a small group of three workers.
    (CCR 4:322). He was an “excellent” supervisor, according to one co-
    2 See Chance v. Elliot & Lillian, LLC, 
    462 S.W.3d 276
    , 282 (Tex. App. 2015)
    (“we may consider all summary judgment evidence not otherwise excluded from
    the trial court's consideration.”);; Schronk v. City of Burleson, 
    387 S.W.3d 692
    (Tex. App. 2009) (“Objections to the form of summary-judgment evidence are
    preserved for appellate review only if those objections are made and ruled on in
    writing by the trial court”);;Wrenn v. G.A.T.X. Logistics, Inc., 
    73 S.W.3d 489
    , 497-
    98 (Tex. App. 2002) (court will not imply exclusion of summary judgment
    evidence, absent clear evidence in order). It is understood however, that this
    Court is in control and may choose not to consider any matter it deems
    appropriate. See, e.g. B.M.L. Through Jones v. Cooper, 
    919 S.W.2d 855
    , 858
    (Tex. App. 1996)
    10
    worker.    (CCR 4:430).   Roland Brackens (“Brackens”) was his
    immediate “supervisor” at the college. (CR 4:292). Brackens had
    evaluated Rollins as “honest” “responsible,” and rated him “good” in
    “willingness to do work.” (CCR 4:359).
    Bracken’s direct supervisor was James Harris, Vice President of
    Business and Finance. (CCR 7:930, 21:3513). Dwight Fennel was the
    College President (CCR 7:931).
    MPF Investments, LLC d/b/a A-1 Rent All (“MPF”), is the
    company from whom Texas College rented one of the two scissor lifts
    that were in the gym where Mr. Rollins was working on October 22,
    2013. (CCR 2:104).
    THE FIRST “BLACK OUT” INCIDENT
    Rollins first experienced “syncope and associated symptoms”
    during a September 2013 physical plant work assignment. (CCR
    3:234).   On September 8, 2013, Rollins “briefly passed out” after
    coughing and sneezing while he was trying to lift a heavy slab of
    marble. ROLLIN’S AFFIDAVIT (CCR 25:4132). The next day, September
    9. 2013, he “went to the doctor.” Id “He was eventually told he had
    an episode of ‘syncope.’” REPORT OF JOE G. GONZALEZ, MD (CCR 6:651).
    11
    ROLLINS IS DIAGNOSED WITH SYNCOPE
    In his expert report to the trial court, Dr. Joe G. Gonzales,3
    summarized his medical history of Rollins:
    On September 9, 2013, Mr. Rollins was seen at the
    Emergency Department of Baylor University Medical Center for
    syncope. It was indicated Mr. Rollins had multiple episodes and
    each spell was "ppt" by generalized paresthesia, and some
    lightheadedness. It was also indicated Mr. Rollins had episodes
    at work, while driving and had several spells that day. It was
    also noted Mr. Rollins lost consciousness that day and Mr.
    Rollins had a GCS score of 15.
    On September 10, 2013, Mr. Rollins was discharged home
    in stable condition and was provided a diagnosis of syncope.
    It was indicated Mr. Rollins was provided discharge instructions
    for syncope (fainting episode). It was noted Mr. Rollins was
    provided a work release form which allowed Mr. Rollins to be
    able to return to work in 2 days with no restrictions.
    On October 14, 2013, Mr. Rollins was seen by William J.
    Hwang, M.D. for blackout spell during exertion, pain in neck
    and back, and numbness from the neck down. It was noted Mr.
    Rollins was lifting a heavy object on September 4, 2013, sneezed
    during the episode and developed weakness and numbness
    from the neck down. It was indicated Mr. Rollins passed out
    twice that day and had felt dizzy and lightheaded prior to
    blackout spells. …. Dr. Hwang provided assessments of 1
    episode of blackout spell, and noted differential diagnoses
    included syncope versus seizures, stroke and TIA. …. Dr.
    Hwang advised to follow up with primary care doctor for chest
    3  Dr. Joe G. Gonzales is a Physical Medicine & Rehabilitation, Pain
    Medicine, and Occupational & Environmental Medicine specialist who has
    practiced Medicine in Texas since 1985. He is the President of the Texas Physical
    Medicine & Rehabilitation Institute, and the Founder and Medical Director of
    Physician Life Care Planning, LLC. Dr. Gonzales is a licensed physician in the
    State of Texas.
    12
    pain and possible syncope episode such as a cardiogenic
    syncope and instructed Mr. Rollins NOT TO DRIVE until free
    from blackout spells for 6 months.
    REPORT OF JOE G. GONZALES, MD (CCR 6:646-647) (emphasis added).
    NOTICE OF SYNCOPE DIAGNOSIS AND REMOVAL FROM DRIVING DUTY
    Importantly, Rollins informed both Harris and Brackens that he
    “was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT
    (CCR 25:4132). Brackens admitted to hearing about the problem:
    “…I left out on the 9th of September and I think I returned on the
    17th. I think that's when I -- the day I returned back from vacation.
    There was a incident that I heard that he had had a light stroke or a
    heart attack or something --…” (CCR 4:382). In addition, on at least
    one prior occasion Rollins told Brackens that he was afraid of
    heights. (CR 4:294)
    In his affidavit, Rollins indicated that he “produced a Doctor
    note to prove that [he] had been to the hospital. Mr. Harris and Mr.
    Brackens then removed [him] from a driving duty [he] had been
    performing for some time at Texas College where [he] would drive
    students from Dallas to Tyler to attend classes.” (CCR 25:4132). In
    his sworn interrogatory answers Rollins stated that he was “restricted
    from driving” in September of 2013. (CCR 3:236).
    13
    Rollins had been asked to drive TC students on Tuesday and
    Thursday mornings.     (CCR. 4:306).     Brackens testified that he
    “knew” about the “park-and-rides” Rollins was “doing” on Tuesdays
    and Thursdays. (CCR 4:362). Confirming Rollins’ version of events,
    Brackens also testified that he suspected that Harris was responsible
    for the suspension:
    Q. Who is it -- who is it that likely took him off of the driving
    detail?
    A. Mr. Harris.
    Q. And do you know why Mr. Harris took him off the driving
    detail?
    A. No, sir, I do not.
    Q. Did it have anything to do with Garry having some
    issues behind the wheel, passing out, that sort of thing?
    A. That I do not know. I know that he had been in and out sick
    all the time. That could have been the issue.
    (CCR 7:883-883).
    THE GROWING ANTAGONISM
    During this time, Rollins began “to experience problems getting
    along with Mr. Brackens.” (CCR 25:4132). “At times” he questioned
    Bracken’s “leadership ability and competence.” 
    Id. Brackens was
    having Rollins “perform maintenance and repair jobs that were at
    times degrading and a little frightening.”     
    Id. Rollins began
    to
    question the schools attitude toward their safety. (CCR 25:4133).
    14
    Although he was Rollins’ superior, Brackens admitted that he
    resigned because he had “leadership problems” and that employees
    were “not listening” to him. (CCR 4:343). A colloquy with counsel
    shows that Brackens had an issue with people not taking his orders:
    Q. Meaning that people were not respecting your leadership
    and authority and your position?
    A. Correct.
    Q. And why do you think that there was a lack of respect for
    your authority and leadership at Texas College?
    A. Don't know. Don't know. That's -- the employees, that's the
    problems that I had. You cannot make grown folks work,
    and all I could do was ask them to do jobs and they it
    wasn't getting done.
    (CCR 4:344) (emphasis added).
    THE WORK ON OCTOBER 21, 2013
    On October 21, 2013 Roland Brackens told Rollins, that “Dr.
    Fennel wanted the ceiling in the gym fixed....” and that a “scissor lift
    would be out” and to “go in” the gym. (CCR 4:297). Mr. Rollins
    described his response: “I expressed to him then I didn’t know how
    to use it and I didn’t want to get up on it because I done got too old
    and I’m afraid of the height.” (CCR. 4:297). Nevertheless Brackens
    told Rollins to get with another employee “Michael Jones” who
    15
    Brackens claimed knew “how to use it.” (CCR 4:297).               Rollins
    complied. 
    Id. After some
    difficulty with the lift, as Mr. Rollins described: “We
    finally got it crunk up, and we went up and patched the roof, the
    ceiling. I stayed up there about five minutes on the 21st showing
    him what needed to be done, and him and a community service
    finished off.” (CCR 4:297) (emphasis added). Although, Rollins had
    no “trouble getting off the lift” (CCR 4:299), he was “nervous the
    entire time” he was “up there.” (CCR 25:4133). They did not finish
    the work that day. (CCR 25:4133).
    Bracken’s judgment was not good.        Earlier that day he had
    instructed the men to put a ladder on top of the scissor lift
    platform to reach even higher. (CR. 4:303-304). He admitted to it.
    (CCR 4:342). His order was universally rejected by his subordinates
    and his superiors. (CCR 4:304). The deposition testimony describes
    this crazy suggestion, as well as Rollins’ response in rejecting the
    idea:
    Q. What other conversation took place?
    A. I discussed with Mr. Harris Roland told them guys to set a
    ladder up on top of the lift and get up there because it
    wouldn't reach a certain height that they had to get to and
    he told them to set a ladder up on top of the lift and I told
    16
    them not to set no ladder up on there because they be
    done fell out and kill theirself. And I told Ms. Bowie and
    Mr. Harris that. Well, Mr. Harris started laughing about it
    and said that that was stupid of Roland to even suggest that
    being in the position that he's in.
    Q. And you were standing there when Mr. Brackens told this
    to Stevie?
    A. No. They came and told me, and I confronted Mr. Bracket
    about it.
    Q. Stevie was one of them, was the other one --
    A. Mike and Alex.
    Q. All three.
    A. Yes.
    Q. And they told you and then you went --
    A. And then I went and talked to Roland about it first,
    asked him why would he tell them to set a ladder up on
    that lift.
    Q. And what did he say?
    A. He said that Dr. Fennell want this done, he want it done by
    Friday, so whatever it takes to get it done, that's what we
    need to do.
    (CCR 24:4041-4042) (emphasis added).
    THE CONFRONTATION ON THE AFTERNOON OF OCTOBER 21ST
    Rollins’ refusal to obey Mr. Brackens had consequences. Later
    that evening Rollins “was called to the office by Mr. Harris and Ms.
    Bowie....” (CCR 4:297-298). As Mr. Rollins put it: “…Mr. Bracket
    had told them that I said I wasn’t going to get up there and do it….”
    (CCR. 4:298). Harris told Rollins that Brackens had “complained”
    17
    that Rollins was an “ongoing discipline problem” and that Rollins
    “didn’t want to do as told.” (CCR 25:4133). “Mr. Harris informed
    [Rollins] that in order to keep [his] job [he] needed to get the
    ceiling fixed as directed.” 
    Id. (emphasis added).
    In his deposition, Rollins described the pressure to be on the lift
    due to the presence of a camera in the gym:
    Q. Now, I do want to ask you about this conversation. Tell me,
    just describe in your own words as best you can what you
    said to them and what they said to you.
    A. Well, when I walked in the office, I asked Mr. Harris what
    was going on, and I saw Ms. Bowie. And normally if
    something is going on that Mr. Harris want me to take care
    of, he usually calls me up there and I do the job. When I
    saw Ms. Bowie, I asked them what was going on.
    They said, "Mr. Bracket said that you won't do nothing
    he said."
    And I told them he was a liar. I say, "I done been in the
    gym this morning and started Mike and them in there
    patching the roof." We got cameras in there in the gym,
    and I was seen on the cameras up there on the lift.
    Q. How do you know that? Was that part of this conversation?
    A. Was it part of who conversation?
    Q. The conversation with Mr. Harris and Ms. Bowie?
    A. Yes. I told them I was seen by Dr. Fennell and Ms. Marshall.
    Q. On the camera.
    A. Yes.
    Q. How do you find out about that?
    A. Ms. Marshall told me.
    Q. When did she tell you that?
    18
    A. That evening on the way home. She said, "I was sitting up
    here wondering why did you get up on the lift feeling
    the way you feel."
    AND I TOLD HER I DIDN'T HAVE NO CHOICE and I got to
    finish it up tomorrow.
    Q. But you were discussing that with Mr. Harris and Ms.
    Bowie?
    A. Yes.
    Q. But you weren't aware that you were seen on the camera
    until after you left the campus to go home.
    A. No, no, no. When we got in the car, Ms. Marshall
    automatically started talking with me about why would you
    get up on that lift.
    …
    Q. So, tell me -- all right. So, tell me about this discussion
    then about being on the camera with – I mean, the
    discussion you had with Ms. Bowie and Mr. Harris about
    being on the camera.
    A. It wasn't a long discussion, it was just when I was called in
    the office that evening, I was already in Ms. Marshall's office
    sitting in her office. And she sit up there and ask me,
    "Why would you get up on the lift like that and you
    know how you're feeling?"
    So, I told her at that time, "Well, Roland told me that I
    had to GET UP THERE and get it done." And then in the
    next two or three minutes, Mr. Harris called my phone and
    had me come around to his office, we're in the same
    building. I went around to his office, and he immediately
    told me that Mr. Bracket said that I wouldn't do nothing he
    told me to do and I was supposed to been in there fixing
    that gym and I wasn't even doing that.
    And I told him that Mr. Bracket is telling a lie, I say Ms.
    Marshall and Dr. Fennell saw me on there.
    Q. So, Ms. Marshall told you that she and Dr. Fennell saw
    you.
    19
    A. Yes.
    (CCR 4:300 - 303) (emphasis added). Rollins continued to describe
    the specific directive he received that afternoon from Mr. Harris:
    Q. Did you have any further conversation with Ms. Bowie and
    Mr. Harris?
    A. No. As far as on that evening, Mr. Harris just told me that
    first thing in the morning go in there and get that done, he
    say, because Dr. Fennell been telling Roland that he wanted
    to get it done and Roland come up here and say you say you
    ain't going to do it, but we need to get that done before
    Friday. I told Mr. Harris, "Mr. Harris, I'm going to tell you
    like I told Roland, I'm afraid of the height, but I'm going to
    get in there and I'm going to get it done." And at that time, I
    was also angry. But when Tuesday came, I went in there
    and I got it done.
    (CCR 4:304-305).
    Interestingly, Mr. Brackens testied repeatedly that Rollins was
    not at work on the 21st. (CCR 20:3289). But Michael Johnson, a co-
    worker indicated that Rollins was there and had instructed him to
    disregard the crazy ladder instruction made by Brackens earlier on
    that day. (CCR 20:3269).
    THE WORK ON OCTOBER 22ND
    Rollins testified that he showed up for work at about 7:15 am
    on the morning of the 22nd and after a short “McDonalds” breakfast
    the crew got to work. (CCR 4:307). He continued:
    20
    And by that time, the guys would be through picking up
    trash out through the campus, and we all get started to
    work. So, on that Tuesday, I knew I didn't have a choice,
    I feel like my job was in jeopardy and I was still mad and
    angry. But I went in the gym, me, Steve Alex, Mike hadn't
    showed up yet, and we try to get the lift started. We couldn't
    get it started; so, it was another lift on the other end, we
    went down there and we managed to get that one crunk up.
    And I went up there and start patching the holes. Maybe
    five minutes Mike came in, and he told me that he would go
    ahead and finish it. And I told him, nah, I said, no, Roland
    done called me in the -- I mean, Mr. Harris done called me
    in the office yesterday evening because of Roland telling
    him that I wouldn't do it. He said, "Well, Roland is just
    lying, we was in here." I said, "Well, I know it" I said, "but
    I'm not worried about that," I say, "I just need to get this
    done because I don't need them saying nothing else to me
    about this gym."
    
    Id. In another
    exchange, Rollins testified about the situation with
    more detail:
    Q. And how long were you up on the lift up there by yourself
    before Mike came in?
    A. Maybe 5 or 8 minutes. When he came in, I let it down and
    he got on. And he told me that, "Well, you go ahead and
    get off, man, because you look like you're scared." I
    said, "Well, I don't want to be up here anyway, but your
    uncle went and lied yesterday; so, I got to get this
    done."
    Q. So, he and Mike initiated the comment that you go ahead
    and get down because you look like you're scared.
    A. Yes.
    Q. And then you told him no because your uncle --
    A. I had to get it done.
    Q. Because your uncle lied yesterday.
    21
    A. Yes. I was directed by Mr. Harris to get it done Tuesday.
    Q. That wasn't T-uesday, was it?
    A. That was on a Monday when Mr. Harris direct me
    Tuesday morning GET UP THERE and get it done.
    (CCR 309)(emphasis added).
    Rollins was “afraid” of working on the scissor lift at that time
    “because [he] didn’t know how to operate it, hadn’t been trained, and
    was fearful because of [his] injury and blackouts.” (CCR 25:4134).
    Harris testified that Rollins was duty bound to get on the lift if
    Mr. Brackens told him to – even if Brackens knew about the syncope!
    Q. So, you're now going to testify -- or are you testifying now
    that if a manager knows that an employee is suffering
    from seizures, the employee should get on the scissor
    lift if the manager says get up there and do it, is that
    what you're telling me?
    A. Yes.
    (CCR 868). This is the type of evidence which supports a finding of
    gross negligence. Brackens has completely denied the events and
    stated that he told Mr. Rollins not to “be in the Gym” on Oct. 22d.
    (CCR 4:354).
    Rollins “would not have gotten on the lift if [he] had not been
    specifically instructed to do so by Mr. Brackens and later by Mr.
    Harris.” (CCR 25:4134). “The only reason [he] got on the lift is
    22
    because [he] was told to do so and was made to feel as though
    [his] job depended on it.” (CCR 25:4134-4135) (emphasis added).
    Rollins “didn't want to do it.” (CCR 25:4135).
    If Mr. Brackens had looked at the owner's manual and
    informed [Rollins] that a person with blackouts shouldn't be on
    a lift, [Rollins] would not have gotten on. Mr. Brackens however
    did not do this. He did not look at a safety manual, and if he
    did, he certainly did not inform or warn [Rollins] that a person
    in [Rollins’] condition shouldn't be on a scissor lift.
    
    Id. THE FINAL
    “BLACK OUT” AND THE “FALL”
    Once Mike “brought the lift down” Rollins “went to exit and fell
    from the top of the platform flat on [his] back onto the gym floor.”
    (CCR 25:4134). “The top of the lift platform is still a good three feet
    off the ground when its all the way down and [he] fell straight back
    with nothing breaking his fall.”     
    Id. Rollins does
    not “remember
    taking the first step down.” 
    Id. Insinuating that
    Rollins’ prior ordeal (of multiple hospital visits,
    medical tests, and ultimate syncope diagnosis) was the first part of
    some elaborate fraud, Michael Johnson who is apparently Bracken’s
    nephew (CCR 4:309) and was still on the payroll (CCR 4:400) testified
    that Rollins looked like he just “let go.” (CCR 4:410). Johnson also
    claimed Rollins offered to “take care of” him “when this is over.” (CCR
    23
    4:413). In a move completely inconsistent with fraud, after the fall,
    Rollins said something like “Yea, I’m fine or okay.” (CCR 4:458.) He
    told Stevie Barron “that he was just embarrassed.” 
    Id. Rollins was,
    in fact, embarrassed and thought he was alright. (CCR 25:4134). He
    “tried to get up fast because [he] was more embarrassed knowing that
    Dr. Fennell was looking at the cameras.” (CCR 21:3620). “Of course,
    [he] later ended up having to have major surgery.” 
    Id. Regardless, the
    “stress of the work at that height had [him]
    disoriented and dizzy. 
    Id. He was
    already “nervous being that high
    in the air.” 
    Id. All Rollins
    remembered was “turning around on the
    platform, gripping the handrails, and then being on [his] back.” 
    Id. Q. So,
    you had a right hand on one handrail and a left hand
    on the other.
    A. Yes.
    Q. While you were still standing on the platform, the floor.
    A. Right.
    Q. And then you proceeded to step down --
    A. Yes.
    Q. -- the first step? With your right foot or left foot?
    A. I don't know was it my right or left, I can't recall.
    Q. Were you able to step down on that step?
    A. I stepped down, and when I stepped, I fell.
    Q. How did you fall?
    
    24 A. I
    just fell flat on my back, I don't know what happened, I
    just fell.
    (CCR. 21:3619-3620).
    THE ATTEMPT TO MANUFACTURE EVIDENCE OF “CONSCIOUSNESS”
    In deposition, Texas College’s counsel repeatedly asked Rollins
    questions which could be misconstrued.       When Rollins said he
    remembered “falling,” counsel attempted to make it seem as though
    the witness was saying that he was conscious, but Rollins had to
    correct the effort of misdirection:
    Q. Don't remember if you slipped.
    A. No.
    Q. Don't remember if you stumbled?
    A. No.
    Q. But you do remember falling down on the floor.
    A. Yes.
    Q. So, you were conscious the whole time.
    A. I don't know if I was conscious or not. When I hit the
    floor -- right at this time, I don't know what happened.
    Q. But do you -- you recall falling down, right?
    A. Yes.
    Q. You don't recall -- I mean, you recall holding on and then
    you fell down.
    A. And that's all I remember.
    (CCR 4:313-314).
    25
    The testimony above makes it clear that Mr. Rollins lost
    consciousness or most likely lost consciousness. Despite counsels’
    continued attempt to get Mr. Rollins to admit to consciousness
    during the fall, the witness simply stated: that he remembered falling
    (as in being standing, then being on the ground) – not that he
    remembered the entire sequence of the fall.
    This testimony was not clearly presented to the trial court, but
    instead paraphrased: “Rollins has no explanation as to how he fell;;
    just that he fell.” See TC’S MOTION FOR SUMMARY JUDGMENT, p. 2. (CCR
    4:250).
    Ironically, when cross examined by counsel for MPF, the
    syncope explanation becomes more likely:
    Q. All right, Mr. Rollins. You testified that before the October
    22nd incident you had an issue where you were driving
    home and you started to black out; is that correct?
    A. Yes.
    Q. Okay. Is it a possibility that the day that you fell off the lift
    that you blacked out and fell on it?
    A. I really don’t know how to answer that because I really don’t
    know what happened that day.
    Q. (BY MR. GEDDIE) Okay. So you agree with me that that’s a
    possibility that you blacked out that day.
    A. Again, my response is I don’t know exactly what happened.
    Q. Can you think of any reason why it could not be an
    explanation for your fall that you blacked out?
    26
    A. No.
    (CCR 2:155-156) (emphasis added). Rollins explanation might be
    simple, but it makes sense: “I shouldn't have been on it.”       (CCR
    4:317).
    THE CONDITION OF THE LIFT AND TRAINING
    The lift had been rented by Texas College from MPF.         (CCR
    5:469). According to Brackens, who signed off on the lift, there was
    no owner’s manual on board the lift.     (CCR 2:162). Mr. Bracken’s
    testified that although he was given instruction on “how to operate”
    the lift, he did not pass that training onto his subordinates:
    Q. But you didn’t’ turn around and show or train your
    subordinates how to operate it?
    A. My subordinates had already been trained, because that is
    not the first time that we had a scissor lift on the premises
    and was used.
    Q. And is proof of training kept in their personnel files?
    A. No.
    Q. Why?
    A. That I can’t answer.
    (CCR 2:162).    Rollins swore that MFP (A-1) “did not offer us
    training” or “familiarize us with the lift.”          (CCR 25:4133)
    (emphasis added).    Mr. Harris, agreed that “untrained employees
    shouldn’t be on scissor lifts.” (CCR 7:863).
    27
    Rollins “hadn’t been trained” and “didn’t know how to operate
    it.) (CCR 25:4134). Rollins was “present outside the gym when A·1
    Rent All delivered the scissor lift to Texas College.” (CCR 25:4143).
    He “asked the delivery person if A·1 would bring the lift inside the
    gym and who was going to show [them] how to use it.” 
    Id. “The A·1
    person informed [Rollins] that he couldn't bring the lift indoors and
    that the folks at Texas College knew how to use the lift.” 
    Id. Rollins stated
    that “A-1 did not offer us training nor did it familiarize us with
    the lift. The person from A·1 just came and delivered the machine
    and left.” 
    Id. When asked
    about what training could have made a difference,
    Mr. Rollins testified as follows:
    Q. Here's my question, and I'm trying to make sure that I'm
    clear about it: What training could you have been given, if
    any, if you know, that would have enabled you to get on the
    lift or get off of it onto the floor any better than you did?
    A. Any proper training that someone that already knew how to
    use the lift or someone that already was licensed to use the
    lift.
    Q. (BY MR. YARBROUGH) Is that your answer?
    A. Yes.
    Q. And how would that specifically have helped you do
    anything different?
    A. Then I would have been trained to know how to use it and
    to get on and off the proper way, operate it the proper way.
    28
    But it still -- I was still afraid to get on it, period; so, I
    shouldn't have been on it.
    (CCR 4:316-317) (emphasis added).
    THE INJURY
    Mr. Rollins testified that as soon as he fell, he was “hurting” in
    the “back of my neck.” (CCR 4:314). He had no prior complaints
    about neck pain:
    Q. Yeah. What I'm asking is after you recovered from the first
    surgery to your neck, two months after that before the
    incident at Texas College on October 22, 2013, had you
    complained of pain in your neck"?
    A. No, I had not complained about pain in my neck.
    (CCR 4:318).
    In his report to the trial court, Dr. Gilbert Martinez, noted the
    link between the fall and Rollins’ neck injury:
    Correspondence on July 18, 2014, by Dr. Barnett includes
    the opinion that there was reasonable medical probability
    that Mr. Rollins suffered an acute herniated disc at C4-C5
    and spinal cord contusion caused by the fall on October 22,
    2013, and that he would have chronic pain in his neck and
    spinal cord dysfunction as a result of the injury.
    REPORT OF GILBERT MARTINEZ PHD (CCR 6:611). The photos are telling:
    29
    REPORT   OF   JOE G. GONZALES, MD (CCR 6:674). Dr. Martinez’ Report
    continues:
    3. Mr. Rollins will benefit from a comprehensive pain
    management program with a focus on interventions designed to
    reduce the effects of acute and chronic and pain. This should
    include evaluation by a medical pain specialist who can
    evaluate Mr. Rollins' potential for benefiting from medical
    procedures designed to alleviating chronic pain, as well as
    participation in various therapies designed to improve physical
    and behavioral adjustment of individuals with chronic pain.
    Such programs typically include a brief inpatient
    hospitalization for initial evaluation, medication management,
    and intensive therapy, followed by a more extended course of
    outpatient therapy.
    4. In addition to the effects of his physical problems, Mr. Rollins'
    chronic reactive depression will contribute to his functional
    disability and will have a negative impact on his long-term
    vocational adjustment. Life care planning should account for
    Mr. Rollins' significantly diminished occupational potential.
    30
    REPORT OF GILBERT MARTINEZ, PHD (CCR 6:620). The prognosis if poor
    for Gary Rollins:
    Based on the known medical conditions, Mr. Gary L.
    Rollins will have lifelong, progressive symptoms, physical
    impairment and subsequent disability which will require long-
    term medical care.
    REPORT OF JOE G GONZALES, MD (CCR 6:628).
    SUMMARY OF THE ARGUMENT
    When one seeks to win by excluding key evidence on the basis
    of strategic, technical grounds, one must live and die by the technical
    and strategic failures of one’s own motions. Rather than argue the
    merits of this case, Texas College and MPF launched a technical war
    and jointly attempted to eliminate all relevant testimony, affidavits,
    expert reports, operating manuals, and relevant medical records from
    the record. Instead, they failed to convince the court to strike key
    parts of Rollins’ Affidavit, they lost a key battle over Doctor Reports
    which they introduced and referenced without objection, and they
    actually introduced the majority of the testimony which proves their
    own liability.
    31
    Moreover, many of the evidentiary objections were simply
    without merit.    If revisited by this Court, even more summary
    judgment evidence supporting appellants’ claims will surface.
    Finally, even on the remote chance more evidence is needed,
    this Court should reverse the trial courts denial of the motion to re-
    open the evidence.
    ARGUMENT
    1.   STANDARD OF REVIEW
    The function of summary judgment is to eliminate patently
    unmeritorious claims and defenses, not to deprive litigants of the
    right to a jury trial. City of Houston v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    , 678 n. 5 (Tex.1979); Swilley v. Hughes, 
    488 S.W.2d 64
    ,
    68 (Tex.1972).
    Recently in Wylie v. Hide-A-Way Lake Club, Inc., No. 12-12-
    00290-CV, 
    2013 WL 6797871
    , at *7-8 (Tex. App. Tyler, Dec. 20,
    2013), review denied (Aug. 22, 2014) this Honorable Court
    summarized the standard of review for a case similar to this, which
    involved both traditional and no-evidence summary judgments.
    TRADITIONAL MOTION STANDARD
    32
    In Wylie, this Court cited the authority and set forth the
    standard:
    The movant for traditional summary judgment has the
    burden of showing that there is no genuine issue of material
    fact and that it is entitled to judgment as a matter of law. Tex.R.
    Civ. P. 166a(c); 
    Nixon, 690 S.W.2d at 548
    . When the movant
    seeks summary judgment on a claim in which the nonmovant
    bears the burden of proof, the movant must either negate at
    least one essential element of the nonmovant's cause of
    action or prove all essential elements of an affirmative defense.
    See Randall's Food Mkt., Inc. v. Johnson, 
    891 S.W.2d 640
    , 644
    (Tex.1995). When the movant seeks summary judgment on a
    claim in which the movant bears the burden of proof, the
    movant must prove all essential elements of the claim. Winchek
    v. Am. Express Travel Related Servs. Co., 
    232 S.W.3d 197
    , 201
    (Tex.App.-Houston [1st Dist.] 2007, no pet.). Once the movant
    has established a right to summary judgment, the burden
    shifts to the nonmovant to respond to the motion and
    present to the trial court any issues that would preclude
    summary judgment. See City of Houston v. Clear Creek Basin
    Auth., 
    589 S.W.2d 671
    , 678–79 (Tex.1979).
    
    Id. at *7
    (emphasis added).     “In determining whether there is a
    genuine fact issue precluding summary judgment, evidence
    favorable to the non-movant is taken as true and we make all
    reasonable inferences in his favor.” Hernandez v. Brinker Int'l, Inc.,
    
    285 S.W.3d 152
    , 163 (Tex. App. 2009) (emphasis added). Elements
    of the action must be “conclusively” negated in order for the
    defendants to prevail. 
    Id. (emphasis added).
        Any doubts are to be
    33
    resolved in the non-movant’s favor.           Nixon v. Mr. Property
    Management, 
    690 S.W.2d 546
    , 548–49 (Tex.1985).
    As will be shown here, even if one removes from consideration
    all of the stricken evidence, there is still a genuine issue of material
    fact as to Duty, Breach of Duty and Causation against each
    defendant.
    NO EVIDENCE MOTION STANDARD
    In Wylie, this Court’s explanation of the no-evidence standard
    was equally complete:
    Once a no evidence motion has been filed in accordance
    with Rule 166a(i), the burden shifts to the nonmovant to bring
    forth evidence that raises a fact issue on the challenged
    evidence. See Ford Motor Co. v. Ridgway, 
    135 S.W.3d 598
    , 600
    (Tex.2004). We review a no evidence motion for summary
    judgment under the same legal sufficiency standards as a
    directed verdict. King Ranch, Inc. v. Chapman, 
    118 S.W.3d 742
    , 750–51 (Tex.2003). A no evidence motion is properly
    granted if the nonmovant fails to bring forth more than a
    scintilla of probative evidence to raise a genuine issue of
    material fact as to an essential element of the nonmovant's
    claim on which the nonmovant would have the burden of proof
    at trial. 
    Id. at 751.
    If the evidence supporting a finding rises to
    a level that would enable reasonable, fair minded persons to
    differ in their conclusions, then more than a scintilla of
    evidence exists. 
    Id. Less than
    a scintilla of evidence exists when
    the evidence is so weak as to do no more than create a mere
    surmise or suspicion of a fact, and the legal effect is that there
    is no evidence. 
    Id. 34 Id.
    These facts do “more than create a mere surmise of suspicion” of
    a negligence claim.
    ORDER OF CONSIDERATION
    This Court continued in Wylie to explain the proper order of
    consideration of the issues:
    In both traditional and no evidence summary judgment
    motions, we review the entire record de novo and in the light
    most favorable to the nonmovant, INDULGING EVERY
    REASONABLE INFERENCE AND RESOLVING ANY DOUBTS
    AGAINST THE MOTION. See Sudan v. Sudan, 
    199 S.W.3d 291
    ,
    292 (Tex.2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.
    Corp., 
    988 S.W.2d 746
    , 748 (Tex.1999). All theories in support
    of or in opposition to a motion for summary judgment must be
    presented in writing to the trial court. See Tex.R. Civ. P. 166a(c).
    If the trial court's order does not specify the grounds on which
    it granted summary judgment, we affirm the trial court's ruling
    if any of the theories advanced in the motion is meritorious.
    State Farm Fire & Cas. Co. v. S.S., 
    858 S.W.2d 374
    , 380
    (Tex.1993).
    Moreover, when a party moves for both a traditional and a
    no evidence summary judgment, generally, we first review the
    trial court's summary judgment under the no evidence
    standards of Rule 166a(i). 
    Ridgway, 135 S.W.3d at 600
    . If the
    no evidence summary judgment was properly granted, we do
    not reach arguments made under the traditional motion for
    summary judgment. See 
    id. at 602.
    Id. at *8 
    (emphasis added). Here, appellant will show that under the
    current law there is substantial evidence of the elements of the
    claims.   In doing so, the showing will also defeat any summary
    judgment on traditional grounds.
    35
    MOTION TO RE-OPEN EVIDENCE
    A motion to re-open the evidence is reviewed under an abuse of
    discretion standard. In re Prot. of H.W., 
    85 S.W.3d 348
    , 358 (Tex.
    App. Tyler 2002).    In the case of In re Prot. of H.W., this Court
    indicated a primary consideration when it stated: “…the trial judge
    should liberally exercise his discretion to permit both sides to
    fully develop their case. 
    Id. (citing Lifestyle
    Mobile Homes v. Ricks,
    
    653 S.W.2d 602
    , 604 (Tex. App.-Beaumont 1983, writ ref'd n.r.e.))
    (emphasis added).
    As will be shown, the trial court here did the opposite. It struck
    evidence on dubious technical grounds and refused to allow
    correction of the “alleged” defects. This precluded the parties from
    fully developing the case.
    SCOPE OF EVIDENCE
    On February 19, 2015 the trial court issued 6 orders on six
    intertwined matters: Texas College’s two motions for summary
    judgment, appellees joint motion to strike the designations and
    reports of Dr. Martinez (psychologist), Dr. Gonzales (medical doctor)
    and Thomas Roney (economist);; MPF’s motion to strike the
    designation and testimony of Burt Thorpe (aerial lift equipment
    36
    expert);; Texas College’s motion to strike evidence;; and MPF’s
    objections to evidence.
    When a trial court sets a single hearing for multiple intertwined
    motions, the court is free to consider the evidence together. It may
    consider evidence advanced by one party in one motion, to support a
    motion or response by another party. In Rea v. Cofer, 
    879 S.W.2d 224
    (Tex. App. 1994) the appellant had asserted the discovery rule.
    Appellees’ motion for summary judgment, failed to even address the
    issue.     Nevertheless the Court of Appeals determined that the
    omission was not fatal, “because the proof necessary to negate the
    discovery rule was contained in [another party’s] motion for summary
    judgment on file with the court.” 
    Id. at 228.
    The Rea court cited
    Desiga v. Scheffey, 
    874 S.W.2d 244
    (Tex.App.—Houston [14th Dist.]
    1994, n.w.h.) in which the court held that when a trial court sets a
    single hearing for multiple motions for summary judgment, the court
    may look to other proof on file with the court to determine any of the
    motions.     In a particularly instructive passage, the Desiga court
    stated:
    However, in view of the unique circumstances of this case,
    we find this omission to be not fatal as to Dr. Guerrero's
    summary judgment for the following reasons. Only one hearing
    37
    was set for the judge to rule on all of the motions. All of the
    motions were heard at the same time, January 22, 1993 at 9
    a.m. At the same hearing, the trial court heard all of the
    arguments in support of the various motions. The trial court
    granted summary judgment for all appellees the same day. In
    the unique facts and circumstances of this case, to find
    otherwise would place the trial court in a position of having
    to engage in the ARTIFICE OF IGNORING Mr. Desiga's
    deposition testimony which was otherwise on file with the
    court in the form of the other appellees' motions for summary
    judgment.
    
    Id. at 253
    (emphasis added).     The Desiga court noted the Texas
    Supreme Court’s increasing leniency with regard to summary
    judgment evidence:
    We find support for this holding in the Texas Supreme
    Court’s recent demonstrations of increasing leniency in the
    areas of both summary judgment proceedings in general and
    summary judgment evidence specifically. See McConathy v.
    McConathy, 
    869 S.W.2d 341
    , 341 (Tex.1994) (holding
    deposition excerpts used as summary judgment evidence need
    not be authenticated to be considered competent summary
    judgment proof); Mafrige v. Ross, 
    866 S.W.2d 590
    , 590
    (Tex.1993) (holding parties may make otherwise unappealable
    order final simply by adding “Mother Hubbard” language in the
    order). Such a holding with regard to Dr. Guerrero is in effect
    acknowledging the trial court's capacity to take judicial
    notice of those documents on file with it at the time of a
    hearing on a motion for summary judgment. The other parties'
    motions for summary judgment having been duly filed with the
    trial court for its consideration constituted part of the record
    before it.
    
    Id. 38 In
    addition, both orders of summary judgment contained
    language expanding the scope of evidence far beyond the confines of
    rule 166a to “any additional briefing accepted by the court.”
    (CCR 24:3935 and 24:3938).      Thus, this Court need not engage in
    the “artifice of ignoring” the evidence that was before the trial court
    at the time of the February 19th rulings. It may consider all of the
    evidence presented by all the parties together, when deciding the fate
    of any particular motion.
    2.   THE TRIAL COURT ERRED IN GRANTING TEXAS
    COLLEGE’S TRADITIONAL AND NO EVIDENCE MOTION
    FOR SUMMARY JUDGMENT
    Because the trial court did not hold oral argument and because
    its orders are silent as to any reasoning, this brief will examine the
    rationale behind appellees’ motions.
    NATURE OF CLAIMS INVOLVED
    Texas College’s motion is chock full of inapplicable premises
    liability cases, as well as cases in which there was no evidence of
    unusual danger.     Here, there is a singular sterling difference
    between the facts of this case and the facts of any case cited in
    support of Texas College’s motion. It is the truly insane and
    spiteful order for Rollins to “get up there” and finish the work.
    39
    The order was given despite both Brackens and Harris knowing that
    Rollins was “unfit” for the job due to his “black-out” spells. Appellee’s
    motions would have this court adopt the standard of liability provided
    by Harris in his deposition:
    Q. So, you're now going to testify -- or are you testifying now
    that if a manager knows that an employee is suffering
    from seizures, the employee should get on the scissor
    lift if the manager says get up there and do it, is that
    what you're telling me?
    B. Yes.
    (CCR 7:868). This is not the law. It should not be the law. None of
    the cases cited in the motions involve the commanding of an
    employee to do a knowingly unsafe act – an act which is not unsafe
    because of a premises condition – but is unsafe because the plaintiff
    was physically “unfit” for the job – he had fainting spells.
    This is not a premises liability case.         The only place in
    appellants’ pleadings which the word “premises” appears is the
    prayer: “WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray….”
    (CCR 498-505, 8th Amended) (CCR 92-101, 7th Amended) (CCR 83-
    91, 6th Amended). This case involves active and grossly negligent
    supervision. As to Texas College, Rollins plead:
    Defendant's failure to: 1) provide a reasonably safe
    workplace; 2) furnish reasonably safe machinery or reasonably
    40
    safe personal protective equipment for use with the Lift and for
    use in lifting the marble slab counter top; 3) provide adequate
    help in the performance of work; 4) train and/or properly
    supervise Plaintiff Garry Rollins while using the Lift and lifting
    the marble slab counter top; and 5) to ensure that Plaintiff
    Garry Rollins was fit to perform work on a scissor lift.
    7TH AMENDED PETITION (CCR 1:96) (emphasis added).
    THE ELEMENTS AND THE EVIDENCE
    1. Duty and Breach of Duty
    Tex. Labor Code Ann. § 406.033 eliminates significant defenses
    in nonsubscriber cases such as this. The provision reads in pertinent
    part:
    “… it is not a defense that:
    (1) the employee was guilty of contributory negligence;
    (2) the employee assumed the risk of injury or death;
    or
    (3) the injury or death was caused by the negligence of a
    fellow employee.
    
    Id. (emphasis added).
    The Texas Supreme Court also reaffirmed that
    comparative negligence may not be submitted in a nonsubscriber
    case. See Kroger Co. v. Keng, 
    23 S.W.3d 347
    , 352-53 (Tex. 2000) (“We
    therefore hold that a nonsubscribing employer is not entitled to a jury
    question on its employee's alleged comparative responsibility.)
    Texas College’s motion focused primarily on the lack of duty to
    warn of dangers which an employee already appreciates. This theory
    41
    might have been applicable had Rollins plead “failure to warn.” He
    did not.
    Texas College made extensive use of Kroger Co. v. Elwood, 
    197 S.W.3d 793
    , 794 (Tex. 2006.) See TEXAS COLLEGE MOTION FOR SUMMARY
    JUDGMENT (CCR 4:249-271). Elwood was a near frivolous case, with
    little in common to the instant case:
    Billy Elwood, a courtesy clerk at a Kroger grocery store,
    was injured when a customer shut her vehicle door on his
    hand while he was transferring items from a grocery cart to the
    vehicle. Elwood had placed one hand in the vehicle's
    doorjamb, and one foot on the cart, to keep the cart from
    rolling down a slope in Kroger's parking lot.
    
    Elwood, 197 S.W.3d at 794
    (emphasis added). But even in Elwood
    the Court acknowledge the concept of “duty.” Albeit lengthy, the
    following passage from Elwood and its highlighted language shows
    why its holding and the holdings of similar cases do not apply here:
    An employer has a DUTY TO USE ORDINARY CARE in
    providing a safe workplace. Farley v. M M Cattle Co., 
    529 S.W.2d 751
    , 754 (Tex.1975). IT MUST, for example, warn an
    employee of the hazards of employment and PROVIDE NEEDED
    safety equipment or ASSISTANCE. 
    Id. However, an
    employer
    is not an insurer of its employees' safety. Leitch v. Hornsby, 
    935 S.W.2d 114
    , 117 (Tex.1996); Exxon Corp. v. Tidwell, 
    867 S.W.2d 19
    , 21 (Tex.1993). It owes NO DUTY to WARN of hazards that
    are commonly known or already appreciated by the
    employee. See Nat'l Convenience *795 Stores, Inc. v. Matherne,
    
    987 S.W.2d 145
    , 149 (Tex.App.—Houston [14th Dist.] 1999, no
    pet.). It has NO DUTY to provide equipment or ASSISTANCE
    42
    THAT IS UNNECESSARY to the job's safe performance. See
    Allsup's Convenience Stores, Inc. v. Warren, 
    934 S.W.2d 433
    ,
    438 (Tex.App.—Amarillo 1996, writ denied). And, when an
    employee's injury results from performing the same character
    of work that employees in that position have always done, an
    employer is not liable if there is NO EVIDENCE THAT THE
    WORK IS UNUSUALLY PRECARIOUS. 
    Werner, 909 S.W.2d at 869
    (citing Great Atl. & Pac. Tea Co. v. Evans, 
    142 Tex. 1
    , 
    175 S.W.2d 249
    , 251 (1943)).
    In this case, there is no evidence that loading groceries on
    the sloped portion of Kroger's parking lot is an unusually
    dangerous job, nor is there evidence that other courtesy clerks
    sustained similar injuries while loading groceries on the sloped
    lot. Indeed, loading purchases into vehicles is a task
    performed regularly—without any special training or
    assistance—by customers throughout the grocery and retail
    industry. While there is evidence that grocery carts had rolled
    into vehicles due to the parking lot's slope and may have posed
    a foreseeable risk of damage to customers' vehicles, this is no
    evidence that the slope posed a foreseeable risk of injury to
    Kroger's employees. Elwood presented NO EVIDENCE that his
    JOB REQUIRED SPECIALIZED TRAINING. See Nat'l
    Convenience 
    Stores, 987 S.W.2d at 149
    . Elwood testified that,
    prior to working at Kroger, he knew it was dangerous to place
    his hand in a vehicle's doorjamb. Moreover, there is NO
    EVIDENCE that carts with wheel locks or ADDITIONAL
    PERSONNEL WERE NECESSARY to safely load groceries. See
    Allsup's Convenience 
    Stores, 934 S.W.2d at 438
    .
    Kroger had no duty to warn Elwood of a danger known to
    all and NO OBLIGATION TO provide training or equipment to
    DISSUADE an employee from using a vehicle doorjamb for
    leverage. Employers are not insurers of their employees. See
    
    Leitch, 935 S.W.2d at 117
    ; Exxon 
    Corp., 867 S.W.2d at 21
    .
    Accordingly, without hearing oral argument, we reverse the
    court of appeals' judgment and render judgment for Kroger. See
    TEX. R. APP. P. 59.1, 60.2(c).
    43
    
    Id. at 794-95
    (Tex. 2006) (emphasis added). The highlighted matters
    are discussed below:
    a) Ordinary Care
    First and foremost:      Is there really any doubt that a
    supervisor who knows his employee is having “black outs” is not
    exercising “ordinary care” when he instructs that employee to
    “get up there” in a scissor lift and patch the gym ceiling? Mr.
    Elwood’s supervisors did not tell him to “get over there and put your
    hand in the door jamb.”
    b) Duty to provide assistance
    Second, the facts here show that Texas College breached the
    duty to provide assistance.   Recall that on October 21st Brackens
    told Rollins that he “had to GET UP THERE and get it done." (CCR
    4:303) (emphasis added). But Rollins had safely gotten off the lift
    and directed his assistants do the work. He “…stayed up there about
    five minutes on the 21st showing him what needed to be done, and
    him and a community service finished off.”       (CCR 4:297).    Mr.
    Brackens had been apparently upset by that fact.       So later that
    afternoon “…Mr. Bracket [sic] had told them that [Rollins] said [he]
    wasn’t going to get up there and do it….” (CCR 4:298). So, once
    44
    again, Rollins was ordered to get up there. “That was on a Monday
    when Mr. Harris direct me Tuesday morning GET UP THERE and
    get it done.” (CCR 4:309) (emphasis added). Rather than let Rollins
    use the assistance of his subordinates to do the patching, as he was
    attempting to do on the 21st, Brackens and Harris got mad about it,
    and ordered him personally to “get up there” on the 22nd. They made
    the order, knowing he had been having “black outs.” The evidence
    shows without a doubt that Texas College breached the duty to
    provide needed assistance as set forth in Elwood.
    c) No Duty to Warn
    Here, Rollins is not complaining that Texas College should have
    warned him of something he already knew (that it was dangerous for
    him to get on the lift in his condition). He certainly knew that. He is
    complaining that despite the fact that his employer also knew it, the
    employer ordered him to take the risk he did not want to take. This
    is not a “failure to warn” case. It is an “ordered to do it” case –
    involving active and gross negligence.
    Very recently, the Texas Supreme Court answered questions
    which had been certified to it by the United States Court of Appeal
    for the Fifth Circuit. In the case of Austin v. Kroger Texas, L.P., 465
    
    45 S.W.3d 193
    (Tex. 2015), the Texas Supreme Court surveyed the
    landscape of cases relating to employer duty in non-subscriber cases.
    Although most of the opinion deals with questions of liability relating
    to premises defects, the Court mentioned an exception to the “no-
    duty” rule in premises cases, which has at least some logical bearing
    here:
    Instead, the Court's abolition of the no-duty rule should
    play a role only when an exception to the general rule applies—
    that is, when the nonsubscribing employer owes a duty
    despite the obviousness or employee's appreciation of a
    danger because, despite the awareness of the danger, it is
    necessary that the employee use the dangerous premises and
    the employer should anticipate that THE EMPLOYEE IS
    UNABLE TO TAKE MEASURES TO AVOID THE RISK. In such
    cases, the employer cannot rely on the fact that the risk
    was obvious and known to the employee to argue that the
    employee bears some portion of the responsibility for his
    own injuries, because the TWCA waives those defenses.
    Compare Del 
    Lago, 307 S.W.3d at 772
    –73; 
    Parker, 565 S.W.2d at 520
    , with Tex. Lab. Code § 406.033(a); 
    Keng, 23 S.W.3d at 352
    .
    
    Id. at 210
    (emphasis added). Here there is active negligence, but even
    if it were a premises case, it would be excepted from the no-duty to
    warn rule, because Rollins, being ordered to “get up there,” was
    “unable to take measures to avoid the risk.”       Once he obeys the
    46
    master’s orders, the risk is unavoidable. He is up high, in harm’s
    way, subject to “blacking out.”
    d) Negligent Supervision, Negligent Training
    In addition, as the Texas Supreme Court noted in Austin:
    Thus, when a claim does not result from contemporaneous
    activity, the invitee has no negligent-activity claim, and his
    claim sounds exclusively in premises-liability. See 
    Shumake, 199 S.W.3d at 284
    ; 
    Keetch, 845 S.W.2d at 265
    .
    But when the landowner is also an employer and the
    invitee is also its employee, this additional relationship
    may give rise to additional duties, such as a DUTY TO
    PROVIDE NECESSARY EQUIPMENT, TRAINING, OR
    SUPERVISION. …..
    When an injury arises from a premises condition, it is often
    the case that any resulting claim sounds exclusively in premises
    liability, but that is not necessarily the case. An injury can have
    more than one proximate cause. Del 
    Lago, 307 S.W.3d at 774
    ;
    Lee Lewis Constr., Inc. v. Harrison, 
    70 S.W.3d 778
    , 784
    (Tex.2001). The fact that Austin alleged that a condition of
    the premises proximately caused his injury does not
    preclude his allegation that Kroger's negligent failure to
    provide the Spill Magic system also caused his injury. If the
    only relationship between Austin and Kroger were that of
    landowner–invitee, the alleged facts could only give rise to a
    premises-liability claim. …..
    AS AUSTIN'S EMPLOYER, KROGER OWED AUSTIN
    duties in addition to its premises-liability duty and ITS
    DUTY NOT TO ENGAGE IN NEGLIGENT ACTIVITIES,
    including the duty to provide Austin with necessary
    instrumentalities.
    47
    
    Id. at 215-16
    (emphasis added). Here, there is not even an allegation
    of premises liability, such as in Austin. But it is clear that the Texas
    Supreme Court acknowledges the duties owed in this case.
    The evidence of negligent supervision is glaring.    Not only did
    Harris and Brackens give Rollins a foolish order to “get up there”
    (CCR 4:303, 4:309), Brackens admitted that he had “leadership and
    authority” problems (CCR 4:344). He had even suggested they put a
    ladder on the platform to reach even higher. (CCR 4:303-304). This
    is a textbook “reasonable person” failure.
    As far as negligent training, Brackens admitted that he did not
    pass the training he received on to his subordinates. (CCR 3:162).
    (CCR 25:4133). Rollins “hadn’t been trained” and “didn’t know how
    to operate it.) (CCR 25:4134) Mr. Harris, agreed that “untrained
    employees shouldn’t be on scissor lifts.” (CCR 7:863).
    e) No Duty to Provide Unnecessary Assistance
    This statement in Elwood is a non-sequitur.           Who needs
    “unnecessary” assistance? Here, to avoid undue risk, the assistance
    Rollins wanted was necessary.       It is not outlandish to require a
    supervisor with knowledge of the risk that one of his employees may
    suddenly fall, to provide assistance and prevent it. See e.g.
    48
    McEachern v. Glenview Hosp., Inc., 
    505 S.W.2d 386
    (Tex. Civ. App.
    1974), writ refused NRE (June 12, 1974). In McEachern, the Court of
    Appeals reversed and rendered a verdict for the plaintiff because it
    was reasonably foreseeable that a patient who was on table in
    emergency room of hospital might faint as result of psychogenic
    shock, or some similar event, and that the hospital was under duty
    to have someone in attendance with patient and keep proper lookout
    for his safety.)
    f) No evidence that the work is unusually
    precarious
    This statement in Elwood distinguishes the case quickly.
    Elwood, involved loading groceries on the sloped portion of Kroger's
    parking lot – “a task performed regularly—without any special
    training or assistance—by customers.” 
    Elwood, 197 S.W.3d at 795
    . Here, there is no indication that untrained students were using
    the scissor lift regularly. It goes without saying that elevating one’s
    self to the top of a gymnasium ceiling on a “scissor lift” is precarious.
    49
    (CCR 21:3467)
    g) No evidence that the job required specialized
    training
    Here, again the case facts are opposite Elwood. Even Mr. Harris
    said that that “untrained employees shouldn’t be on scissor lifts.”
    (CCR 7:863).
    h) No evidence that additional personnel were
    necessary
    Once again, this case is different from Elwood. Here, Rollins
    used additional personnel on the 21st without incident, and let them
    finish the work. (CCR 4:297). But on the 22d, the order of “get up
    50
    there” forced him upon the lift, when using his subordinates would
    be the safer choice.
    i) No obligation to dissuade
    Finally, this case is different from Elwood and its companions
    in that Rollins’ superiors were commanding him to take the
    dangerous action. They were not watching him do it on his own and
    failing to “dissuade” him. They were “persuading” him to do it under
    threat of insubordination and possible termination. As the Texas
    Supreme Court Stated in Austin: “an employee always has the option
    to decline to perform an assigned task and incur the consequences
    of that 
    decision.” 465 S.W.3d at 214
    (citing in jest, the long abrogated
    McKee v. Patterson, 
    153 Tex. 517
    , 525, 
    271 S.W.2d 391
    (1954)
    abrogated by Parker v. Highland Park, Inc., 
    565 S.W.2d 512
    (Tex.
    1978)). Even McKee recognized that its “no duty” rule had limits:
    This extreme common law view, which traded on the
    economic necessity of the workman to earn a living, resulted in
    the adoption of Liability and Compensation Acts to offer a
    measure of certain protection to the workman. The plaintiff here
    collected benefits under the Workmen's Compensation Act,
    Vernon's Ann.Civ.St. art. 8306 et seq. In cases where
    legislation has not abolished the defense of assumed risk,
    the common law rule still prevails in this country in master
    and servant relationships.
    
    Id. at 396
    (emphasis added).
    51
    In sum, the trial court either misread or misapplied the law and
    facts on the concept of “duty.” There are several duties which apply
    here: 1) the exercise of ordinary care; 2) the duty to provide
    assistance; 3) the duty to provide adequate supervision; and 4) the
    duty to provide proper training. Texas College commanded Rollins to
    “get up there” without any training, and more importantly, while
    knowing he had been suffering “black-outs.”         This simple act
    breached all of these duties.
    2. Proximate Cause
    a) Generally
    In Kroger Co. v. Milanes, No. 14-13-00873-CV, 
    2015 WL 4594098
    (Tex. App. July 30, 2015) the Court affirmed a lower court
    judgment against the employer and summarized the requirements of
    causation in a non-subscriber case:
    Proximate cause consists of two elements: cause in fact
    and foreseeability. Del Lago Partners, 
    Inc., 307 S.W.3d at 774
    .
    Cause in fact means that the defendant's act or
    omission was a substantial factor in bringing about the
    injury, which would not otherwise have occurred. Western
    Investments, Inc. v. Urena, 
    162 S.W.3d 547
    , 551 (Tex.2005).
    Cause in fact is not shown if the defendant's conduct did no
    more than furnish a condition that made the injury possible. 
    Id. The second
    element of proximate cause, foreseeability,
    requires that a person of ordinary intelligence should have
    anticipated the danger created by the negligent act or
    52
    omission. Doe v. Boys Clubs of Greater Dallas, Inc., 
    907 S.W.2d 472
    , 478 (Tex.1995). These elements cannot be established by
    mere conjecture, guess, or speculation. 
    Id. at 477.
    Proximate
    cause may, however, be established by direct or
    circumstantial evidence and the reasonable inferences
    drawn from that evidence. Pilgrim's Pride Corp. v. Smoak, 
    134 S.W.3d 880
    , 889 (Tex.App.–Texarkana 2004, pet. denied) (citing
    McClure v. Allied Stores of Texas, Inc., 
    608 S.W.2d 901
    , 903
    (Tex.1980)).
    
    Id. at *11
    (emphasis added).
    The negligent order was the cause in fact of the fall. Here it was
    more than a substantial factor in causing Mr. Rollins to fall. Mr.
    Rollins swore that he “would not have gotten on the lift” but for the
    order by Brackens and Harris. (CCR 25:4134).      By simple logic, the
    fall would not have occurred had he not been ordered to “get up
    there.”
    The accident was foreseeable here.      It simply defies logic to
    believe that Brackens should not have foreseen the possibility of
    Rollins falling. Rollins informed both Harris and Brackens that he
    “was now having dizziness and blackout spells.” ROLLINS AFFIDAVIT
    (CCR 25:4132).    They had removed him from driving duty (CCR
    25:4132), presumably to prevent an accident.
    Certainly an order to engage in a negligent activity can be the
    proximate cause of an accident.    In Halliburton Oil Well Cementing
    53
    Co. v. Groves, 
    308 S.W.2d 919
    (Tex. Civ. App. 1957), writ refused
    NRE, the court found that a supervisor’s negligent direction to an
    employee to apply an excessive “pull” on some tubing was a
    “proximate cause” of the crown block breaking – an event which killed
    the employee.     
    Id. at 933.
        Similarly, an order to “get up there”
    knowing the possibility of a black out, can be the proximate cause of
    a fall.
    b) Medical Causation
    It is assumed that Appellees worked so hard at the trial court
    level to exclude the doctor’s reports because they knew they needed
    to defeat Rollins on the issue of medical causation.        They tried
    mightily to eliminate proof that the fall caused Rollins’ neck injury.
    But they succeeded only in excluding the letter from Rollins’ treating
    physician Samuel Barnett, MD. They did this by convincing the lower
    court that the letter had not been properly authenticated. However,
    it was properly authenticated as will be shown below in the next
    argument. Nonetheless, there are two reasons why excluding Dr.
    Barnett’s letter is irrelevant.
    First, in a personal injury and fall case, lay testimony on
    injury causation is sufficient:
    54
    …non-expert evidence may be sufficient to support a
    finding of causation in cases where both the occurrence and the
    medical conditions complained of are such that the general
    experience and common sense of lay persons are sufficient to
    evaluate the conditions and whether they were probably caused
    by the occurrence.
    City of Dallas v. Furgason, 05-06-00875-CV, 
    2007 WL 2703134
    , at
    *1 (Tex. App.—Dallas Sept. 18, 2007, no pet.). Texas law is replete
    with cases on the topic. See e.g. Morgan v. Compugraphic Corp., 
    675 S.W.2d 729
    , 733 (Tex. 1984) (temporal connection to time of exposure
    and physical proximity to fumes per testimony of plaintiff was
    competent evidence that her alleged injuries were caused by the
    release of chemicals.); Figueroa v. Davis, 
    318 S.W.3d 53
    , 61 (Tex.
    App.—Houston [1st Dist.] 2010, no pet.) (plaintiff’s testimony about
    broken teeth after car accident sufficient); Cotton Patch Cafe v.
    McCarty, 2-05-082-CV, 
    2006 WL 563307
    , at *3 (Tex. App.—Fort
    Worth Mar. 9, 2006, no pet.) (trip and fall case with plaintiff
    testimony about injuries and doctor visits sufficient); Dawson v.
    Briggs, 
    107 S.W.3d 739
    , 754 (Tex. App.—Fort Worth 2003, no pet.)
    (plaintiff’s lay testimony about jaw problems after wreck was
    sufficient).
    In Grey Wolf Drilling Co., L.P. v. Boutte, 
    154 S.W.3d 725
    , 744
    (Tex. App.—Houston [14th Dist.] 2004), review granted, judgment
    55
    vacated, and remanded by agreement (Mar. 4, 2005) the court stated
    that lay testimony which establishes a sequence of events
    providing a “strong, logically traceable connection between the
    event and the condition is sufficient proof of causation.”
    Here, Rollins’ affidavit indicated that as a result of the accident
    he “ended up having to have major surgery.” (CCR 25:4134). Rollins’
    affidavit also indicates that immediately after the fall, he “could not
    move at first” and “eventually” rolled over onto his feet.        (CCR
    25:4134). Rollins described the fall as “I just fell flat on my back and
    my neck.” (CCR 4:311).     Dr. Barnett’s surgery discharge summary
    in the medical records filed by Texas College shows that his major
    neck surgery happened on October 26, just a few days after the
    October 22nd fall. (CCR 8:1050). The records also indicate a primary
    diagnoses of “syncope and collapse.” (CCR 8:983). Certainly this is a
    strong, logically traceable connection between the event and the
    condition.
    Second, the attempt at excluding the Dr. Reports failed. The
    trial court denied the motion to strike them, and they contained the
    very same information appellees were seeking to exclude by keeping
    out the Barnett letter. The disclosure responses which incorporated
    56
    the reports, were specifically used as summary judgment evidence.
    (CCR 2:109) (See reference to summary judgment exhibit “H” -
    Plaintiffs' Fifth Supplemental Responses to Requests for Disclosure.).
    The language of the reports leaves little doubt as to medical
    causation:
    Correspondence on July 18, 2014, by Dr. Barnett includes
    the opinion that there was reasonable medical probability
    that Mr. Rollins suffered an acute herniated disc at C4-C5
    and spinal cord contusion caused by the fall on October 22,
    2013, and that he would have chronic pain in his neck and
    spinal cord dysfunction as a result of the injury.
    REPORT OF GILBERT MARTINEZ PHD (CCR 6:611).
    In summary, there is ample evidence of duty, breach of duty,
    and causation. It was all still before the court after the onslaught of
    exclusionary rulings.   The summary judgment granted in favor of
    Texas College should be reversed.
    ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN
    Even if one assumes that somehow more evidence is needed to
    defeat Texas College’s summary judgment motion, more evidence can
    be considered (see argument, infra). The trial court made numerous
    basic errors when it granted Texas College’s Motion to Strike
    Evidence (and related references in appellants’ response). Since the
    57
    order itself contains most of the text of what was stricken, it serves
    as an easy guide to follow with the argument. It is contained in the
    appendix as “FEB 9 ORDER ON TC EVIDENCE OBJECTIONS.”
    1. Bracken’s Deposition Excerpts
    A brief review of page 2 of the order indicates that the court
    struck evidence to which Mr. Brackens was qualified to speak. He
    indicated that he had received “scissor lift” training in his deposition.
    (CCR 2:162).      Moreover, he is simply reading the conditions
    prescribed by a regulation and then stating (with his personal
    knowledge) that the conditions required “did not take place.” (CCR
    24: 3926).
    2. Owner’s Manual
    This was excluded on page 3 of the order. Perhaps it was not
    noticed, but the manual was authenticated during Mike Frazier’s
    Deposition:
    Q. (BY MR. SIGMON) Have you ever seen this document
    before?
    A. sure.
    Q. Okay. What is this?
    A. This is the operation and safety manual that's inside the
    scissor lift.
    58
    (CCR 20:3319). It is certainly relevant and Mr. Frazier is certainly
    qualified. He is the “Manager of A-1 Rent All.” (CCR 2:172). It should
    not have been excluded.
    3. Rollins Affidavit
    Parts of the Rollins affidavit were redacted based upon the order
    of the Court.   Although the redacted version was plenty to support
    the statement of facts set forth in this brief, some additional relevant
    material should not have been taken from the affidavit.
    The objection labelled “D-3” on page 4-5 of the order should not
    have been sustained. Mr. Rollins is perfectly qualified to authenticate
    the excuses given to him by his Doctors.
    The objection labelled “D-6” on page 5 of the order should not
    have been sustained. Mr. Rollins is qualified to testify as to what his
    doctor told him, and it is clearly admissible hearsay, because it is a
    statement made for the purpose of medical diagnoses and is
    admissible pursuant to 803(4) of the Texas Rules of Evidence.
    The objection labelled “D-7” on page 5 of the order should not
    have been sustained. It is not hearsay. He is simply stating what he
    was directed to do. Moreover, he is qualified to authenticate a note
    given to him by his doctor.
    59
    4. Barnett Letter
    The objection labelled “D-15” on page 7 of the order should not
    have been sustained. This is Mr. Rollins’ authentication of the letter
    from Dr. Barnett, the non-paid, treating physician who performed the
    surgery on Rollins. In its motion to exclude, Texas College did not
    object to the effort of Mr. Rollins to authenticate it. That is no doubt
    because they were aware of the significant body of law allowing lay
    witnesses to identify and authenticate correspondence.         See, e.g.
    Hubenak v. San Jacinto Gas Transmission Co., 
    141 S.W.3d 172
    , 177
    (Tex. 2004) (Dunwoody's affidavit also authenticates correspondence
    that passed between the condemnors and the landowners).
    Moreover, the bar on authentication is very low. Rule 901 of the
    Texas Rules of Evidence merely requires that a witness with
    knowledge testify “that an item is what it is claimed to be.” Tex. R.
    Ev. 901. Rollins’ affidavit clearly does that with respect to the letter:
    My surgeon’s letter to my lawyer describing my injury is
    attached to my affidavit as Exhibit D. I have reviewed this
    document with my lawyer and I am familiar with my surgeon's
    opinion. He provided the letter in connection with this case.
    ROLLINS AFFIDAVIT (CCR 7:888).
    60
    Texas College’s only objection to the Barnett Letter is a stock
    objection that does not apply.    The objection in its entirety is as
    follows:
    This portion within Section 6 of Mr. Rollins' affidavit
    should be stricken and not considered by the Court because the
    information is hearsay. The letter attached to Rollins'
    affidavit as Exhibit D is incompetent hearsay for which no
    exception applies. Mr. Rollins' sole purpose for including such
    records is to prove the truth of the matter asserted by Mr.
    Rollins. Therefore, Texas College's objection to this portion of
    Mr. Rollins' affidavit and the exhibit referenced should be
    sustained, and this portion and the exhibit stricken and
    disregarded by the Court.
    (CCR 22:3678) (emphasis added). The objection is simply erroneous
    and inapplicable. Rule 803(4) specifically reads as follows:
    (4) Statement Made for Medical Diagnosis or Treatment. A
    statement that:
    (A) is made for--and is reasonably pertinent to--medical
    diagnosis or treatment; and
    (B) describes medical history; past or present symptoms or
    sensations; their inception; or their general cause.
    TX R EVID Rule 803. A simple review of the letter indicates that it is
    precisely what the rule applies to. See BARNETT LETTER (in Appendix).
    The Barnett letter should not have been excluded.
    THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE
    Appellants sought leave to introduce two pieces of evidence in
    its motion to re-open the evidence. However, they now complain only
    61
    about the trial court’s refusal to consider the Barnett Affidavit. See
    BARNET AFFIDAVIT (in Appendix). Dr. Barnett's sworn affidavit offers
    nearly the exact same information that is contained in the Barnett
    Letter. See BARNETT LETTER (in Appendix).        Thus, this appellate
    request is superfluous in the event that this Court agrees that the
    letter was properly authenticated.     Moreover, since the opinions of
    Dr. Barnett were also summarized by Dr. Gonzales in his report, this
    argument is, in reality, a fourth tier of insurance. For this issue to
    be decisive, this Court would first have to: (1) reject Rollins’ lay
    testimony combined with the medical records already in evidence, (2)
    reject the use of Dr. Gonzales report, and (3) rule that Rollins was
    unqualified to authenticate correspondence about his own treatment
    from his treating physician. Nevertheless, in the event of such a slim
    possibility, this Court should then concern itself with fairness - not
    technicalities.
    A trial court may permit a party to offer other additional
    evidence when it "clearly appears to be necessary to the due
    administration of justice." Tex. R. Civ. P. 270. In determining whether
    to grant a motion to reopen, the trial court considers whether: (1) the
    moving party showed due diligence in obtaining the evidence, (2) the
    62
    proffered evidence is decisive, (3) reception of such evidence will
    cause undue delay, and (4) the Court's refusal will cause an injustice.
    Word of Faith World Outreach v. Oechsner, 
    669 S.W.2d 364
    , 366-67
    (Tex.App.-Dallas 1984, no writ). The trial court should exercise its
    discretion liberally "in the interest of permitting both sides to fully
    develop the case in the interest of justice." 
    Id. at 367.
    The subject matter of the Barnett letter/affidavit is highly
    relevant, material, and (as noted above) potentially decisive. There
    was no lack of diligence in securing this evidence, rather, the
    evidence was offered as a narrative opinion letter early on. It was
    properly attached to, and authenticated by Rollins’ summary
    judgment affidavit.
    It was shortly after the letter was stricken that Rollins’ counsel
    sought to cure the alleged (but non-existent) defect by reformulating
    it as an affidavit and obtaining the Doctor’s oath. It was provided to
    the court in a motion for reconsideration, and as a motion to reopen.
    Reopening a case for the reception of additional evidence is
    discretionary. See McRoy v. Riverlake Country Club, Inc., 
    426 S.W.2d 299
    (Tex.Civ.App. -Dallas 1968). The discretion is to be liberally
    exercised, particularly if doing so is in the interest of justice. 
    Id. See 63
    also, Hill v. Melton, 
    311 S.W.2d 496
    (Tex.Civ.App.--Dallas 1958, writ
    dism'd.) (Court stating there are occasions where it may be the court's
    duty to grant the motion to reopen). Appellees would not have been
    prejudiced if the trial court had granted appellants’ request.     Dr.
    Barnett's opinion was known to Texas College. The affidavit format
    is virtually identical in substance to the letter disclosed to defense
    counsel during discovery.
    Appellants have meritorious claims in this non-subscriber case
    that should have survived summary judgment. If there was a defect,
    the affidavit cured it.   The trial court should have exercised its
    discretion flexibly "to obtain a just, fair, equitable and impartial
    adjudication of the rights of litigants under established principles of
    substantive law." Tex. R. Civ. P. 1. See also In re Hawk, 
    5 S.W.3d 874
    (Tex.App.-Houston [14 Dist.] 1999).
    3.   THE TRIAL COURT ERRED IN GRANTING MPF’S MOTION
    FOR SUMMARY JUDGMENT
    The rental company should not “get a pass” for renting
    dangerous construction equipment without including operator safety
    manuals.
    64
    THE ELEMENTS AND THE EVIDENCE
    1. Duty
    In Lawrence v. Coastal Marine Serv. of Texas, Inc., 
    983 S.W.2d 757
    (Tex. App. 1997) the Court of Appeals reversed a directed defense
    verdict in a case involving a death due to improper operation of a
    crane. Among the significant facts of the case, the court described
    the following:
    …there was no operator's manual present, and, that the
    operator's manual that should have been in the crane contained
    specific instructions to avoid moving the crane until all
    personnel are clear. Wiethorn further testified that there was no
    load chart to comply with the American National Standards
    Institute (ANSI) within the crane. The operator's manual was
    required by OSHA and ANSI to be kept in the cab at all
    times. According to Wiethorn, OSHA and ANSI standards
    applied to this particular crane and Coastal could have easily
    provided the people who worked with the crane with the
    pertinent OSHA standards regarding its operation. He testified
    that proper operation of a crane calls for the operator to be
    thoroughly conversant with the crane's operating manual,
    which the crane operator could not have done in this case
    because it was not present in the cab.
    
    Id. at 760-61
    (emphasis added).        The court indicated that even
    though the general contractor [Coastal] did not control the crane,
    “Coastal had a responsibility to ensure a safe and suitable crane…”
    
    Id. at 761.
         See also Goodwin v. Bluffton Coll., 2004-Ohio-2223
    (material issue of fact as to whether company's breach of duty to
    65
    provide   college    with   safety   instruction   manuals   and   safety
    components necessary for proper erection of scaffolding was
    proximate cause of student's death precluded summary judgment.).
    Here the situation is similar: although A-1 (MPF) did not control
    the situation in the gymnasium on the day Rollins was injured, they
    had a duty to provide a “safe and suitable” scissor lift.
    A scissor lift is a piece of heavy machinery governed by CFR
    1926.454 of the Occupational Health and Safety Act (“OSHA”) as a
    "mobile scaffold".     The American National Standards Institute
    ("ANSI") safety standard A92.6, AMERICAN NATIONAL STANDARD           FOR
    SELF-PROPELLED ELEVATING WORK PLATFORMS, (CCR 21:3430-3573)
    also addresses scissor lifts and the care they require. In Texas:
    The relevance of an OSHA standard is that it, and the ANSI
    standards which form the basis for most OSHA standards,
    are the cumulative wisdom of the industry on what is safe and
    what is unsafe. While OSHA was written to protect employees,
    an unsafe practice for an employee applies equally well to a
    customer who legitimately finds himself in the same geographic
    space as the employee. Safety principles don't change
    depending on whether the victim is an employee, a customer, or
    a passerby. Therefore it has relevance to the standard of care.
    It doesn't establish negligence per se, and it does not create a
    separate cause of action. Melerine v. Avondale Shipyards, Inc.,
    
    659 F.2d 706
    (5th Cir.1981); Jeter v. St. Regis Paper Co., 
    507 F.2d 973
    (5th Cir.1975). But it may be relevant evidence. …. All
    of appellants' authorities deal with causes of action brought for
    violations of those OSHA regulations. In the case at bar, no such
    66
    recovery was sought by appellee. Rather, the evidence was
    introduced for the purpose of establishing a standard of
    conduct to serve as a basis for a negligence cause of action ...
    the testimony concerning the OSHA regulations only provided
    statutory reinforcement of the obvious common-law standard.
    Wal-Mart Stores, Inc. v. Seale, 
    904 S.W.2d 718
    (Tex.App. -San Antonio
    1995).
    ANSI A92.6 part 6.3.1 requires the owner to provide the
    “operating manual” with each “rental” delivery. (CCR 21:3454).
    (emphasis added).    The manual begins by reminding us that the
    manual itself is a very important "tool" and "keep it with the
    machine at all times". JLG OWNER'S MANUAL "FOREWORD.”
    (CCR 23:3766) (emphasis added). Nothing more need be said. There
    is a duty.
    2. Breach of duty
    Here, there was no owner’s manual on board the lift.
    (CCR 2:162).    Rollins swore that MFP (A-1) “did not offer us
    training” or “familiarize us with the lift.”          (CCR 25:4133)
    (emphasis added). The MPF [A-1] delivery crew did not bother to
    come in and train Rollins, even though he inquired. They told him
    that Texas College already “knew how to use the lift.”      
    Id. (CCR 25:4143).
    Rollins stated that “A-1 did not offer us training nor did it
    67
    familiarize us with the lift.   The person from A·1 just came and
    delivered the machine and left.” 
    Id. Of course
    the “machine” had no
    manual. The duty was breached.
    3. Proximate Cause
    Rollins “hadn’t been trained” and “didn’t know how to operate
    it.) (CCR 25:4134) Mr. Harris, agreed that “untrained employees
    shouldn’t be on scissor lifts.” (CCR 7:863). When asked about what
    training could have made a difference, Mr. Rollins testified that he
    “would have been trained to know how to use it and to get on and off
    the proper way…” (CCR 4:316-317).
    Most importantly, section 2.1 of the manual reads:
    The aerial platform is a personnel handling device; so it is
    necessary that it be operated and maintained only by trained
    personnel.
    Persons under the influence of drugs or alcohol or who are
    subject to seizures, dizziness or loss of physical control
    must not operate this machine.
    JLG OWNER'S MANUAL at 2-1 (CR 23:3341) (uncorrected record). Mr.
    Rollins indicated that “If Mr. Brackens had looked at the owner’s
    manual and informed me that a person with blackouts shouldn’t be
    on a lift, I would not have gotten on.”     (CCR 25:4135).    This is
    certainly more than a scintilla of evidence on proximate cause.
    68
    ADDITIONAL EVIDENCE WAS IMPROPERLY STRICKEN
    1. Owner’s Manual
    The objections to the admission of the owner’s manual is
    ludicrous. First and foremost, it is part of the equipment that they
    admittedly rented. Second, a copy (as asserted by MPF) was already
    in their possession. It was produced at Mike Frazier’s Deposition and
    properly authenticated:
    (Plaintiff's Exhibit 4 marked.)
    MR. SIGMON: Let me hand you what' a being marked as
    Plaintiff's 4.
    THE WITNESS: I'm sorry. Closing these so I have some room.
    Okay, sir.
    Q. (BY MR. SIGMON) Have you ever seen this document before?
    A. sure.
    Q. Okay. What is this?
    A. This is the operation and safety manual that's inside
    the scissor lift.
    Q. Okay. So this is an operation and safety manual from JLG,
    correct?
    A. Yes.
    Q. JLG is the manufacturer of the model 1930es right?
    A. Yes.
    Q, Which is the same model that you rented to Texas College
    that is involved in this lawsuit, right?
    A. Yes.
    Q, Now, on the front page down in the left-hand portion of the
    page, you see four letters? You see those four letters?
    A. The AN -- the ANI -- ANSI?
    Q. Yes,
    A. Yes.
    Q, Do you see that? And you've already identified what ANSI
    stands for, right?
    69
    A. Yes.
    Q. And what is it again?
    A. American National Safety Institute.
    Q. So you'd agree with me that the American National Safety
    Institute has put its logo on the front of this owner's
    manual, right?
    MR. GEDDIE: Objection, form.
    A. It's yes, it's on there.
    (CCR 20:3318-3319). As one can see, the objection that “plaintiffs
    have failed to establish its authenticity or relevance, or lay any proper
    predicate for the admissibility of same, either through a qualified
    witness or otherwise,” as set forth in MPF’s filing (CCR 22:3720) is
    baseless.
    Moreover, one can look at the objections filed by MPF
    (CCR 22:3718-3725) and discern that they are (in large part) stock
    objections, edited and filed without any supporting evidence, and in
    many cases lacking detail. MPF objected to the manual on the basis
    that it was not produced timely in violation of Texas Rule of Civil
    Procedure 193.6(a). (CCR 22:3719-3720). But the objection is a
    “stock objection,” taken off the shelf and pressed without any
    supporting evidence or explanation. Bare stock objections filed in
    writing - with no oral hearing, no evidence, or explanation - should
    70
    be given short shrift by this Court. As shown in the argument above,
    the manual is probative. It was authenticated. It is admissible.
    2. Rollins Affidavit
    MPF objected to the Rollins affidavit on the grounds that it was
    a sham and should “be stricken in its entirety. (CCR 22:3720).
    However the trial court did not exclude the entire affidavit, but rather
    painstakingly edited it in response to Texas College’s objections.
    MPF alternatively asked the court to, at a minimum, exclude
    “the statements that directly contradict” his testimony. 
    Id. Because MPF
    sought an alternative form of relief, the objection is multifarious.
    Compounding the confusion, the order is vague. It is simply a check
    line with a check mark in it, placed in the “sustained” column. See
    FEB 9 ORDER   ON   MPF EVIDENCE OBJECTIONS p. 2 (CCR 24:3937) (also
    in appendix). There is no way for this Court to discern which one of
    the alternative forms of relief was granted by looking solely at the
    order.   However, because the trial court did edit the affidavit to
    exclude the testimony referenced in the alternative plea (CCR
    24:3930-3931) (Texas College objection 13 sustained), one can
    discern that the trial court did not strike the affidavit entirely, but
    71
    granted the lesser relief. Thus, this Court should consider the entire
    affidavit (subject to Texas College objection 13) as to MPF.
    3. Thorpe Affidavit
    Appellees filed a joint motion to strike the affidavit of appellants’
    aerial lift safety expert, Burt Thorpe.     See THORPE AFFIDAVIT (CR
    23:3402-3409) (original record) (also in appendix).        Tellingly, the
    motion to strike the affidavit did not emphasize unfair surprise or
    prejudice. That is because there was none.
    The issues presented in the Motion were: whether Plaintiffs
    timely disclosed Burt Thorpe; whether the disclosure was sufficient;
    and whether Plaintiffs' supplemental designations passed muster of
    the discovery rules and in no way constitute unfair surprise,
    prejudice or trial by ambush. See Tex. R. Civ. P. 193.6(b).
    It was undisputed that the trial court's scheduling order
    required Plaintiffs' to designate all experts by October 16, 2014.
    Plaintiffs met the deadline with their October 13, 2014 Fourth
    Supplemental Disclosure adding Burt Thorpe as a safety expert.
    (CCR 6:710-718) Appellees argued that the supplemental October 13
    disclosure was inadequate and therefore untimely per Rule 194.2(f).
    72
    Appellees cited Cunningham v. Columbia/St. David's Healthcare
    System, L.P., 185S.W.3d 7 (Tex.App.-Austin 2005) for support. In
    Cunningham, the plaintiff was required to designate all experts by
    June 29, 2004. 
    Id. at 11.
    Plaintiff responded to a December 2003
    request for disclosure that she had not yet determined "any testifying
    expert witnesses" and would supplement. 
    Id. The June
    disclosure
    deadline passed without plaintiff supplementing her response (i.e.
    she provided no information about her expert). 
    Id. On September
    7,
    2004 (i.e. 90 days later) plaintiff attached her expert's affidavit for the
    first time, attempting to rely upon it as proof that her claims should
    survive summary judgment. 
    Id. at 11.
    The appeals court affirmed
    defendant's motion to strike on the grounds that plaintiff had herself
    conceded the designation was untimely and that she failed to satisfy
    her burden of showing either good cause or a lack of unfair surprise
    or prejudice. 
    Id. at 13.
    The facts here are distinguishable: at the time Rollins disclosed
    Burt Thorpe in October, he provided to appellees all of the
    requirements of 194.2(f) including: his name, address and telephone
    number; the subject matter on which he was to testify; the general
    substance of his mental impressions and opinions; and his current
    73
    resume.   See PLAINTIFFS' FOURTH SUPPLEMENTAL DISCLOSURE at 6-7
    (CCR 6:710-718). At the time of the disclosure, Plaintiffs expert had
    not been provided any "documents, tangible things, reports, models
    or data compilations" per 194.2(f)(A). In fact, he had only been
    retained recently to testify about issues pertaining to safety and the
    lack thereof - not on medical or damages issues.       The difference
    between the substance of Plaintiffs' disclosure of Burt Thorpe in this
    matter, (timely per the scheduling order) and the complete lack of
    response by the plaintiff in Cunningham is clear. The court in
    Cunningham was absolutely correct in its judgment that the plaintiff
    had not met her burden. There was no evidence of her expert's utter
    existence prior to her summary judgment response, which is the
    epitome of "unfair surprise"- particularly in the context of a
    dispositive proceeding. 
    Id. at 14.
    Here, Rollins met the initial
    requirement of a timely disclosure per the rules and the Court's
    Scheduling Order when he designated Mr. Thorpe on October 13.
    Defendants received fair notice of Mr. Thorpe's participation as
    an expert; and were given the subject matter of his testimony, thus
    refuting any claim of unfair surprise. See Gutierrez v. Gutierrez, 
    86 S.W.3d 729
    (Tex.App. -El Paso 2002).
    74
    4. The ANSI Standard and "Statement of Best Practices”
    During the course of the proceedings, appellants introduced the
    American National Standards Institute ("ANSI") safety standard
    A92.6, AMERICAN NATIONAL STANDARD          FOR   SELF-PROPELLED ELEVATING
    WORK PLATFORMS, (CCR 21:3430-3573) and ANSI’s STATEMENT OF BEST
    PRACTICES   OF   GENERAL TRAINING   AND   FAMILIARIZATION   FOR   AERIAL WORK
    PLATFORM EQUIPMENT, February 2010 (CCR 20:3215-3234).
    MPF objected to these documents claiming that they were not
    authenticated, not timely disclosed, and irrelevant. Ironically, with
    respect to ANSI 92.6, MPF itself produced the same text on 6/26/14
    in response to Plaintiffs’ written request for production. (SR 13).
    Both standards are discussed in the Thorpe affidavit. They are
    referenced in response to requests for disclosure regarding Mr.
    Thorpe’s testimony.      They are relevant.       Although the trial court
    sustained the objections, it should not have. Appellant submitted
    the matters requesting “judicial notice of the Code of Federal
    Regulations, OSHA and ANSI provisions cited” therein, and gave
    “notice of their intent to rely” on them.           (CCR 20:3264).       See,
    Daugherty v. S. Pac. Transp. Co., 
    772 S.W.2d 81
    (Tex. 1989) wherein
    the Texas Supreme Court held that: (1) a court may take judicial
    75
    notice of OSHA regulations without such regulations being included
    in the pleadings, and (2) that the trial court committed reversible
    error by not considering the OSHA regulation. See also Tex. R. Evid.
    201. It bears repeating that ANSI standards “form the basis for most
    OSHA standards.” 
    Seale, 904 S.W.2d at 720
    . Since OSHA adopts
    ANSI standards as its standards, the court was duty bound under
    Rule 201 to take notice.
    THE TRIAL COURT SHOULD HAVE REOPENED THE EVIDENCE
    Appellants incorporate by reference the same argument made
    as to Texas College.
    CONCLUSION AND PRAYER
    Wherefore, Appellants pray that this Court: (1) reverse the trial
    court’s order granting summary judgment in favor of Texas College;
    (2) reverse the trial court’s order granting summary judgment in favor
    of MPF Investments, LLC; and (3) remand the case for further
    proceedings. Also in the interest of justice and clarity: (4) reverse the
    orders (a) denying the motion to reopen the evidence, (b) striking the
    expert designation of Burt Thorpe, and to the extent argued in this
    76
    brief, granting (c) Texas College’s evidentiary objections and (d) MPF’s
    evidentiary objections.
    Respectfully submitted,
    /s/ Ernesto D. Sigmon
    Ernesto D. Sigmon
    State Bar No. 24010397
    LAW OFFICES OF ERNESTO D.
    SIGMON
    WALKER SIGMON LAW
    416 West Saulnier Street
    Houston, Texas 77019
    214/395-1546 (Telephone)
    713/485-6056 (Facsimile)
    esigmon@esigmon.com
    ATTORNEY FOR APPELLANTS,
    GARRY L. ROLLINS AND CARLA D.
    ROLLINS
    77
    CERTIFICATE OF COMPLIANCE
    I certify that this document was produced on a computer using
    Microsoft Word 2013 and contains 14,980 words, as determined by
    the computer software’s word-count function, excluding the sections
    of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).
    /s/ Ernesto D. Sigmon
    Ernesto D. Sigmon
    State Bar No. 24010397
    LAW OFFICES OF ERNESTO D. SIGMON
    WALKER SIGMON LAW
    416 West Saulnier Street
    Houston, Texas 77019
    214/395-1546 (Telephone)
    713/485-6056 (Facsimile)
    esigmon@esigmon.com
    ATTORNEY FOR APPELLANTS,
    GARRY L. ROLLINS AND CARLA D. ROLLINS
    78
    CERTIFICATE OF SERVICE
    I certify that on October 15, 2015 I served a copy of Appellants’
    Brief and Appendix on the parties listed below by electronic service
    and that he electronic transmission was reported as complete. My e-
    mail address is esigmon@esigmon.com.
    /s/ Ernesto D. Sigmon
    Ernesto D. Sigmon
    State Bar No. 24010397
    SIGMON LAW, PLLC
    2929 Allen Parkway, Suite 200
    Houston, Texas 77019
    214/395-1546 (Telephone)
    713/485-6056 (Facsimile)
    esigmon@esigmon.com
    ATTORNEY FOR APPELLANTS,
    GARRY L. ROLLINS AND CARLA D. ROLLINS
    Greg Smith
    Texas Bar No. 18600600
    Nolan D. Smith
    Texas Bar No. 24075632
    RAMEY & FLOCK, P.C.
    100 E. Ferguson, Suite 500
    Tyler, Texas 75702
    Telephone: 903-597-3301
    Facsimile: 903-597-2413
    Mr. Trey Yarbrough
    YARBROUGH WILCOX GUNTER, PLLC
    100 East Ferguson, Suite 1015
    Tyler, Texas 75702
    79
    Fax: 903.595.0191
    Levon G. Hovnatanian
    Texas Bar No. 10059825
    hovnatanian@mdjwlaw.com
    lonergan@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON &
    WISDOM, L.L.P.
    808 Travis, 20th Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    Todd M. Lonergan
    Texas Bar No. 12513700
    lonergan@mdjwlaw.com
    808 Travis, 20th Floor
    Houston, Texas 77002
    (713) 632-1700 – Telephone
    (713) 222-0101 – Facsimile
    Ryan K. Geddie
    Texas Bar No. 24055541
    geddie@mdjwlaw.com
    MARTIN, DISIERE, JEFFERSON &
    WISDOM, L.L.P.
    Tollway Plaza One
    16000 N. Dallas Parkway, Suite 800
    Dallas, Texas 75248
    (214) 420-5500 – Telephone
    (214) 420-5501 – Facsimile
    80
    No. 12-15-00121-CV
    __________________________________________________________________
    IN THE COURT OF APPEALS
    FOR THE TWELFTH DISTRICT OF TEXAS
    TYLER, TEXAS
    __________________________________________________________________
    GARRY L. ROLLINS AND CARLA D. ROLLINS,
    Appellants
    V.
    TEXAS COLLEGE AND
    MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL,"
    Appellees
    __________________________________________________________________
    APPELLANTS’ APPENDIX
    __________________________________________________________________
    Trial Court Orders
    February 19 Order Denying Motion to Strike Doctor Reports……….. 3
    February 19 Order Striking Thorpe Testimony…………………………. 4
    February 19 Order on MPF Evidence Objections……………………….. 5
    February 19 Order on TC Evidence Objections…………………………. 6
    February 19 Order Granting MPF Summary Judgment…………….... 7
    February 10 Order Granting TC Summary Judgment……………..…. 8
    Order Clarifying Objections………………………………………………….. 9
    Order Denying Reconsideration of TC Summary Judgment…………. 12
    Order Denying Reconsideration of MPG Summary Judgement…….. 13
    Order Denying Motion to Reopen Evidence……………………………… 14
    Pleadings
    6th Amended Petition………………………………………………………….. 15
    7th Amended Petition………………………………………………………….. 24
    8th Amended Petition………………………………………………………….. 34
    (contents continued on next page)
    Key Documents
    Full Rollins Affidavit…………………………………………………………… 42
    Redacted Rollins Affidavit……………………………………………………. 47
    Barnett Letter…………………………………………………………………… 52
    Barnett Affidavit……………………………………………………………….. 54
    Thorpe Affidavit………………………………………………………………… 56
    Objections to Evidence
    Texas College’s Objections to Evidence…………………………………… 64
    MPF’s Objections to Evidence………………………………………………. 83
    Cases
    Austin v. Kroger………………………………………………………………… 96
    Kroger v. Elwood……………………………………………………………….117
    Kroger v. Milanes………………………………………………………………120
    Lawrence v Coastal Marine Service………………………………………..140
    CAUSE N0.13-33153-A
    GARRY L. ROLLINS and
    CARLA D. ROLLINS
    Plalntlffa,
    Vs.                                                                SMITH COUNTY, TEXAS
    TEXAS COLLEGE and
    MPF INVESTMENTS, LLC D/B/A
    "A·1 RENT ALL"
    Defendants,                                          7th JUDICIAL DISTRICT
    ORDER ON DEFENDANTS MPF INVESTMENTS, LLC D/B/A A·1 RENT ALL AND
    TEXAS COLLEGE'S MOTION TO STRIKE EXPERT DESIGNATIONS OF GILBl!!RT
    MARTINEZ, JOE 0. GONZALES, AND THOMAS M. RONEY
    THE COURT has considered Defendant's Motion to Strike the Expert Designations of
    Giibert Martinez, Joe G. Gonzalez and Thomas M.                  the applicable law, and the
    'lM    K:-tPl:t,,
    response from Plalntlf'fs and supporting exhibits! Having ddne so, the Court Is of the
    opinion that the Defendant Is not entitled to the relief sought In its Motion. It Is therefore,
    ORDERED, ADJUDGED, and DECREED that the motion Is DENIED.
    It Is so ORDERED.
    ORDER                                                                                Solo P1g1
    APPENDIX 3
    Page 3924
    CAUSE NO. 13-3353·A
    GARRY L. ROLLINS AND                                 §
    CARLA D. ROLLINS,                                    §
    Plaintiffs,                                  §
    I
    v.                                                   §       SMITH COUNTY, TEXAS
    §
    TEXAS COLLEGE, CHRISTIAN                             §
    METHODIST EPISCOPAL CHURCH                           §
    AND MPF INVESTMENTS, LLC                             §
    D/B/A 14A·l RENT ALL",                               §
    Defendant•.                                  §       7TH DISTRICT COURT
    ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A·l RENT
    ALL'S MQTION TO STRIKE EXPERT DESIGNATION OF BURT IHORfE
    The Court has considered Defendant MPF Investments, LLC dlb/a A·l Rent All's
    Motion to Strike Expert Designation of Burt Thorpe, Plaintiffs' Response, the pleadings on file,
    any additional briefing accepted by the Court, and the applicable law. Having done so, the Court
    is of the opinion that Defendant, MPF Investments, LLC d/b/a A· l Rent All, is entitled to the
    relief requested. It is therefore,
    ORDERED, ADJUDGED and DECREED that Burt Thorpe shall not testify at trial in this
    matter and no opinion testimony from Burt Thorpe will be admined into evidence in this matter
    for any purpose.
    It is so ORDERED.
    Sii!led this            of ..........
    ORDER GMND'.'\G DEFENDANT MPf !NYESIMENJ. LLC'S
    MOTION IO STRJKE EXfERI DESIGNATION OF BURI IHOBPt:                                SOLO PAGE
    APPENDIX 4
    Page 3923
    CAUSE NO. 13-3353-A
    GARRY L. ROLLINS AND                            §
    CARLA D. ROLLINS,                               §
    Plaintiffs,                                 §
    §
    v.                                              §          SMITH COUNTY, TEXAS
    §
    TEXAS COLLEGE, CHRISTIAN                        §
    METHODIST EPISCOPAL CHURCH                      §
    AND MPF INVESTMENTS, LLC                        §
    D/B/A "A·l RENT ALL",                           §
    Defendantl.                               §          7TH DISTRICT COURT
    ORDER ON MPF INVESTMENTS, LLC D/B/A A·l RENT
    ALL'S OBJECTIONS TO PLAINWFS' SUMMABY JypGMENT EVIDENCE
    The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's
    Motion to considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's Objections to
    Plaintiffs' Summary Judgment Evidence, Plaintiffs' Response to MPF's Summary Judgment and
    any responses and replies thereto, the pleadings on file, any additional briefing accepted by the
    Court, and the applicable law. Having done so, the Court makes the following rulings on A-1 's
    objections:
    Evidence                                                         Sustalped                Depleci
    1. Excerpts from the deposition of Mike Frazier
    Question at 59: 10
    Questions beginning at 60:21
    Questions beginning at 61:4 - 14
    Questions beginning at 62:4
    6.      The JLG Owner'• Manual Model
    1930-ES (excerpts).
    OBDER ON m>F JNYESW&'IIS. LLC D/BJA A-1 RE..''J
    6{,VS OB.JECTIONS IO PLAINmfS' SJJMMABY Jtl>GMENI EVIDENCE                        PAGEl
    APPENDIX 5
    Page 3936
    •
    GARRY L. ROLLINS and                          §
    CARLA D. ROLLINS                              §
    Plain tlft'1                        §
    §
    vs.                                            §         SMITH COUNTY, TEXAS
    §
    TEXAS COLLEGE and                              §
    CHRISTIAN METHODIST                            I
    EPISCOPAL CHURCH                               I
    I
    Defendants.                   §         7th JUDICIAL DISTRICT
    ORPER ON DEfENDANI TEXAS COLLEGE'S OBJECTIONS/MOTION TO STRIKE
    EVIDENCE AND BEFEBENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE'S
    MOTION FOR SUMMARY JUDGMENT
    ON THIS DAY, the Court considered Texas College's Objections/Motion to Strike Evidence
    and References in Plaintiffs' Response to Texas College's Motion for Summary Judgment. After
    reviewing the pleadings on file, hearing any arguments of counsel, and the applicable law, the Court
    hereby makes the following ruliniS on Texas College's objections:
    A. Texas College's objection to Plaintiffs' references to and use of Plaintiffs' Seventh and
    Eighth Amended Petition as summary-judsment proof are hereby:
    Sustained:     v              Overruled:
    ---
    B. Texas College's objections to the following excerpts from the deposition of Roland Brackens
    and the references in Plaintiffs' response to such are hereby:
    Sustained:     ..!            Overruled: _ __
    Deposition Testimony: 18:4 - 18:2S; 22:1S -
    23: 14; 24:8 - 24: 11; 24:23 - 2S:6
    ORDER ON DEFE!llDA."'l'T TEXAS COLLEGE'S 0BJECTIONs/MOTION TO STRIKE
    EVIDENCE A.'iD REFERENCES IN PLAINTIFFS' RESPONSE TO TEXAS COLLEGE 1 5
    MOTION FOR SUMMARY JlJDGMENT                                                            PAGEi OFIO
    APPENDIX 6
    Page 3925
    ' ..
    ....
    Dis. .ii,,
    :·;
    .• .    '':CR
    ' 'L.r.: K
    1015 Fte I 9 AH
    CAUSE NO. 13-33!3-A           - · ·. ·              0 qI
    GARRY L. ROLLINS AND
    s              I        •
    §
    CARLA D. ROLLINS,
    Plaintiffs,                                   I                                  a, ·..irv-
    t
    v.                                                §          SMITH COUNTY, TEXAS
    §
    TEXAS COLLEGE, CHRISTIAN                          §
    METHODIST EPISCOPAL CHURCH                        §
    AND MPF INVESTMENTS, LLC                          §
    D/B/A "A·l RENT ALL",                             §
    Defendants.                                §           7TH DISTRICT COURT
    ORDER GRANTING MPF INVESTMENTS, LLC D/B/A A-1 RENT ALL'S
    IRADITIONAL AND NO-EVJDENCE MOTION FOR SUMMABY JUDGMENT
    The Court has considered Defendant MPF Investments, LLC d/b/a A-1 Rent All's
    Traditional and No-Evidence Motion for Summary Judgment, Plaintiffs' Response, the pleadings
    on file, the summary judgment evidence, any additional briefing accepted by the Court, and the
    applicable law. Having done so, the Court is of the opinion that Defendant, MPF Investments,
    LLC d/b/a A-1 Rent All, is entitled to summary judiMent as to all of Plaintiffs' claims. It is
    therefore,
    ORDERED, ADJUDGED and DECREED that Plaintiffs' claims and causes of action
    against Defendant MPF Investments, LLC d/b/a A-1 Rent All are dismissed with prejudice, and
    said Defendant's taxable costs are assessed against Plaintiffs.
    OBQER GBANIING DEFE:SDANT MPF I:SVESIMENI. LLC'S
    )IOIION FOR SUM)IARY JUDGMENT                                                                 PAGE I
    APPENDIX 7
    Page 3938
    0                                             0
    . f../: .r.·r)·
    '!'""
    .;:;, ' l.'. '             .
    I•
    "·\     :    ,........ )'
    •       ·''\
    CAUSE NO. 13-33!3-A                          tO/J   rre                '
    GARRY L. ROLLINS and                              §           IN THE                              I: Alt/(): l/2
    CARLA D. ROLLINS                                  §                                o}'             . /)·· -
    Plaintiffs                              §                                                       -
    §
    vs.                                               §           SMITH COUNTY, TEXAS
    §
    TEXAS COLL.EGE and                                §
    CHRISTIAN METHODIST                               §
    EPISCOPAL CHURCH                                  §
    §
    Defendants.                    §           7th JUDICIAL DISTRICT
    ORQER GBANTING TEXAS COLLEGE'S MOIION FOR SUMMARX JUQGMENT
    The Court has considered Defendant, Texas College's, Motion for Swnmary Judgment, Plaintiffs'
    Response, the             on file, the swnmary judgment evidence, any additional briefing accepted by the
    Court, and the applicable law. Having done so, the Court is of the opinion that Defendant, Texas College,
    is entitled to sununary judgment as to all of Plaintiffs' claims. It is, therefore,
    ORDERED, ADJUDGED, and DECREED that Plaintiffs' claims and causes of action against
    Defendant Texas College are dismissed with prejudice, and said Defendant's taxable costs are assessed
    against Plaintiffs.
    It is so ORDERED.
    SIGNED this the               of ......
    APPENDIX 8
    Page 3935
    CAUSE NO. 13·33S3-A
    GARRY L. ROLLINS AND                               §
    CARLA D. ROLLINS,                                  §
    Plalndffs,                                         §
    §
    v.                                                 §           SMITH COUNTY, TEXAS
    §
    TEXAS COLLEGE, CHRISTIAN                           §
    METHODIST EPISCOPAL CHURCH                         §
    AND MPF INVESTMENTS, LLC                           §
    D/B/A "A·1 RENT ALL",                              §
    Defendant••                                        §           7TH DISTRICT COURT
    AGREED ORDER CLARIFYING EARLIER ORDER ON TEXAS COLLEGE'S
    OBJECTIONSIMOTION TO STRIKE EVIDENCE AND REFERENCES IN PLAINTIFFS'
    RESPONSE TO MOTION FOR SUMMARY JUDGMENT
    On this day the Court considered Texas College's unopposed motion for entry of an order
    clarifying an earlier February 19, 20lS orderof this Courton Texas College's objections and motion to
    strike evidence and references in Plaintiffs' Response to Texas College's Motion for Summary
    Judgment. After considering the motion, the Court finds that there is the possibility of someconfusion
    8S   to the sequence ofrulings in Section D of the prior orderand is ofthe opinion that the motionshould
    be granted.
    The Court, therefore, enters the following Order clarifying certain rulings in its February 19,
    201S Order on Defendant Texas College's Objections/Motion to Strike Evidence and References in
    Plaintiffs' Response to Texas College's Motion for Summary Judgment (hereinafter sometimes "Prior
    Order"), and specifically, therulings contained in Section 0 of the PriorOrder:
    1. In Section D, at page 4, the Court overruled DefendantTexas College's objection to the
    particular excerpt from Mr. Rollins' affidavit which reads "(at least I SO Ibs.)," finding
    that the quoted language is 8 personal estimate only.
    2. In Section D, at page S, with respect to the excerpt from Mr. Rollins' affidavit which
    ORDER ON DEFENDANT TEXAS COLLEGE'S MonON FOR ENTRV OF ORDER CLARJFVING
    EARLIER ORDER ON OBJErnoNSIMonON TO STRIKE. EVID1SCE A;liD REF'1!.RENCES
    IS PLAINTIFFS' RESPOSSETO TEXAS COLLEGE'S MOTlO!\l FOR St.:MMARY JUDGMENT                   PAGE 1 Of 3
    APPENDIX 9
    PIIOA 4177
    reads, "We were not trained or instructed on proper lifting techniques or given any
    direction for performing a safe lift of the size," the Court sustained Texas College's
    objection as to "We," but otherwise overruled the objection.
    3. In Section D, at page 6, the Court sustained Texas College's objection to that portion of
    an excerpt from Mr. Rollins' affidavit which reads, "Under Mr. Brackens authority at
    Texas College there was never an emphasis on safety or training for any of the work we
    were assigned. While under his supervision and leadership at Texas College, none of the
    employees were ever sent to any kind of safety training sessions or OSHA workshops,"
    With respect to the sentence in the same excerpt which reads, "This kind of thing made
    me and other employees question the school's attitude toward our safety," the Court
    sustained Texas College's objection as to the words "and other employees" but
    overruled the objection as to the remainder of that sentence. The Court redacted the
    portions to which the objections were sustained.
    4. In Section 0, at page 7, with respect to the excerpt from Mr. Rollins' affidavit which
    reads, "Of course, I later ended up having to have major surgery because of my injury,"
    the Court sustained Texas College's objection to the extent of the words "because of my
    injury," but overruled the objection to the remainder of the excerpt.
    5. Other than the objections, or parts thereof, which were overruled by the Court as
    identified in numbers 1 through 4 above, the Court sustained in their entirety Texas
    College's objections to the remaining excerpts from Plaintiffs' summary-judgment
    evidence and response contained in Section D of the Court's order dated February 19,
    2015.
    It is further Ordered that Sections A, B, C and E of the Prior Order do not require any
    ORDER ON DEFENDANT TEXAS COLLEGE'S MOTION FOR ENTRY OF ORDER CLARlFYlSG
    EARLIER ORDER ON OBJECfJONSlMOTION TO STRIKE EVIDENCE AND REFERENCES
    IN PLAINTIFFS' RES POSSE TO TEXAS COLLEGE'S MOTION FOR SUMMARY Jl1>GMENT              PAGE 2 OF 3
    APPENDIX 10
    Pace 4178
    clarification and are not addressed in this Order.
    This Orderin no way changes the rulings memorialized in the Court's February 19,2015 Order
    but is entered for purposes of clarification only.
    IT IS SO ORDERED.
    SIGNED this   Q      day of...............   ....
    Approved:
    Is!Emesto Sigmon
    Emesto Sigmon
    BarNo. 24010397
    Attorney for Plaintiffs
    lsi Trey Yqrbrouih
    Trey Yarbrough
    BarNo. 22133.500
    Attorney for Defendant TexasCollege
    ORDER ON                  TEXAS COLLEGE'S MOTION rOR ENTRY OF ORDER CLARIFYING
    EARLIER ORDER ON OBJECfIONst'lOTION TO STRIKE                 AND REFERENCES
    IN PLAINTIFFS'              TO TEXAS COLLEGE'S MOTION FOR St:MMARY JUDGMENT           PAGE J OF J
    APPENDIX 11
    Pan.. .4170
    APPENDIX 12
    CAUSE NO. 13-33S3-A
    lOIS       lOAM B: 3S
    GARRY L. ROLLINS AND                           §            IN THE DISTRlc;   I                _ ,
    CARLA D. ROLLINS,                              §                                      '. \ ,   J
    Plaintiffs,                                §
    §
    v.                                             §            SMITH COUNTY, TEXAS
    §
    TEXAS COLLEGE, CHRISTIAN                       §
    METHODIST EPISCOPAL CHURCH                     §
    AND MPF INVESTMENTS, LLC                       §
    D/B/A "A-l RENT ALL",                          §
    Defendant•.                              §            7TH DISTRICT COURT
    ORDER DENYING PLAINTIFFS' MOTION TO RECONSIDER
    THE COURT'S RULING ON DEFENDANT'S TRADITIONAL
    AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
    The Court has considered Plaintiffs' Motion to Reconsider the Court's Ruling on
    Defendant's Traditional and No-Evidence Motion for Summary 1udgment, Defendant MPF
    Investments, LLC's Response, and any related briefing. Having done so, the Court finds that the
    motion should be in all things denied.
    It is, therefore, Ordered that Plaintiffs' Motion to Reconsider the Court's Ruling on
    Defendant's Traditional and               Motion for Summary Judgment is denied.
    ,
    Signed this J...Q:... day of                   is.                         /
    OBDER DENYING PLAcsTIm' MOTION TO RECONSIDER
    THE COURT'S RULING ON DEFENDANT'S TRADITIONAL
    AND NO.EyIDENCE MOTION FOR SUMMAR)'                                      SOLO PAGE
    APPENDIX 13
    Page 4180
    APPENDIX 14
    Electronically Filed
    11/10/2014 7 0717 PM
    Lois Rogers, Smith County District Clerk
    Reviewed By Lana Fields
    CAUSE N0.13-3363-A
    GARRY L. ROLLINS and                                                        IN THE DISTRICT COURT
    CARLA D. ROLLINS
    Plaintiffs,
    Vs.                                                                          SMITH COUNTY, TEXAS
    TEXAS COLLEGE;
    CHRISTIAN METHODIST EPISCOPAL
    CHURCH and
    MPF INVESTMENTS, LLC D/B/A
    "A-1 RENT ALL"
    Defendants,                                                        7th JUDICIAL DISTRICT
    PLAINTIFFS' SIXTH AMENDED ORIGINAL PETITION
    TO THE HONORABLE JUDGE OF THE COURT:
    COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),
    complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")
    and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file
    this Sixth Amended Original Petition:
    DISCOVERY CONTROL PLAN LEVEL
    1.       Discovery is being conducted under Level 2 of the Discovery Control Plan
    pursuant to Texas Rule of Civil Procedure 190.3.
    PARTIES AND SERVICE
    2.      Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas
    County, Texas.
    PLAINTIFFS' SIXTH AMENDED PETITION
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    3.      Defendant TC is a Texas Nonprofit corporation with its principal office in Smith
    County, Texas and has been served with process through its registered agent Dwight J.
    Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered
    in this matter through its attorney of record.
    4.      Defendant CME is a foreign nonprofit corporation organized under the laws of the
    state of Tennessee and was served with process at its principal place of business at
    4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181.                                CME has
    answered in this matter through its attorney of record.
    5.      Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ') is a Texas limited
    liability company with its principal office at 2505 S Southeast Loop 323 Tyler, Texas
    75701. A-1 has answered in this matter through its attorney of record.
    CLAIM FOR RELIEF
    6.      Plaintiffs seek monetary relief over $1,000,000. Tex.R.Civ.P. 47(c)(5).
    VENUE
    7.      Smith County, Texas is a county of proper venue for this suit in accordance with
    Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a
    substantial part of the events or omissions giving rise to this cause of action occurred in
    Smith County, Texas.
    AGENCY
    8.      At all times material hereto, Defendants acted by and through actual, apparent,
    ostensible, or by estoppel agents, acting within the course and scope of such agency.
    FACTS
    9.      Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by
    Texas College in the capacity of maintenance technician. Texas College itself operates
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                        2
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    under the "supervision, care and ownership" of CME and has rented heavy equipment
    "aerial work platforms" from A-1 on various occasions.
    10.     Rollins' formal work title was "Maintenance Technician". His office was in the TC
    Physical Plant (the "Plant").              Rollins reported to Roland Brackens, the Plant
    Superintendent, and to James Harris, Vice President of Business and Finance at TC.
    Rollins also supervised a three to four person maintenance crew.                           Rollins' overall
    responsibility at TC included general maintenance, light construction, driving detail and
    essentially anything else the school required. He was hired to work at TC in 2008.
    11.     During September 2013, Rollins was asked by his supervisor to help move some
    marble counter tops that were to be installed in the school's Science building. The
    slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.
    Rollins and one other worker to perform the task with no other assistance-man nor
    machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and
    suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins
    sought emergency medical care because of the incident and was advised not to drive.
    Rollins informed agents and employees of TC of his restriction and was subsequently
    removed from a TC driving task that he had been performing on Tuesdays and
    Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins
    from the task.
    12.     A few weeks later, sometime during October 2013, the gymnasium ceiling at TC
    needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for
    Plaintiff Rollins and others to use while doing the repairs.
    13.     The Lift is capable of reaching upwards of approximately 20 feet from the ground
    and is often accompanied by a safety harness to prevent worker injury. TC did not rent
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                        3
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    or purchase a harness for use with the Lift, nor did it purchase or rent any other
    personal protective equipment needed to ensure worker safety. Upon information and
    belief, A-1 did not offer or suggest that TC purchase or rent personal protective
    equipment for use with the Lift nor did it adequately confirm whether TC or its agents
    were "qualified personnel" with the training and experience needed to safely operate the
    Lift.   Upon information and belief, A-1 did not familiarize Rollins with the Lift and its
    operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens
    did not check or confirm whether A-1 Rent All included an owner/operator manual with
    the Lift as required by its manufacturer, JLG.
    14.     On or around October 22, 2013 TC directed Rollins and others to use the Lift "as
    is" to make the repairs-minus training or supervision.                     After completing the work,
    Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported
    the incident to the TC human resources department as required. At the time, Rollins
    assumed his fall had been relatively inconsequential as he was able to walk away
    unassisted.
    15.     Three days later, on or around October 25, 2013, Rollins lost sensation in his
    legs and toes and was subsequently admitted to Zale Lipshy University Hospital in
    Dallas Texas where he underwent invasive neck surgery.
    16.     Rollins is now convalescing at home, unable to walk unassisted and requires
    intensive at home physical therapy and care three times a week. He is no longer able
    to perform many of the household tasks he once did to assist his wife Carla with the
    maintenance and care of their home.
    17.     On or around December 6, 2013 Rollins received correspondence from TC
    advising him that he would be terminated if he does not return to work within 3 months.
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                        4
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    CAUSES OF ACTION
    TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE
    18.     Texas College was Rollins' employer at the time of his avoidable injury and owed
    him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's
    Compensation and does not carry any sort of insurance for work related injury.
    Defendant Texas College breached its duty of care to Rollins. Its breach includes and
    is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)
    furnish reasonably safe machinery or reasonably safe personal protective equipment for
    use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate
    help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins
    while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff
    Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions
    by TC constitute negligence and gross negligence.
    CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER
    EGO, NEGLIGENCE AND GROSS NEGLIGENCE
    19.     During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented
    to the public through documents on file with the Texas Secretary of State that TC
    operates under the "supervision, care and ownership" of CME. CME has and continues
    to represent to the general public that TC is one of its "affiliate" educational institutions,
    of which there are several.           CME makes extensive reference to TC throughout its
    internal documentation and by-laws, and the role it plays in establishing TC policies and
    procedures. CME also has a significant "financial relationship" with TC that has been
    reported to the IRS.
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                        5
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    20.     TC acted as CM E's agent at all times relevant to the facts made the basis of this
    lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein
    and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.
    21.     Plaintiffs further allege that CME exercises a measure of control over TC so as to
    qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.
    22.     CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
    risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in
    performing services, whether gratuitously or for consideration that CME should
    recognize as necessary for the protection of other persons or things.
    23.     CME breached its duties by failing to exercise reasonable care to secure Mr.
    Rollins' safety while employed at TC and in doing so significantly increased his risk of
    harm.     This breach makes CME liable to Plaintiffs vicariously and directly.                            The
    foregoing acts and omissions by CME constitute negligence and gross negligence.
    MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT
    ENTRUSTMENT AND GROSS NEGLIGENCE
    24.     MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
    risk of injury to others as well as a duty to take affirmative action to avoid increasing the
    danger from a condition created by its conduct. Defendant MPF breached its duty of
    care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that
    the Lift was being rented and used by competent and authorized persons; and to act
    reasonably and prudently in all manners regarding its rental transaction with TC and the
    steps it should have taken to prevent the readily foreseeable harm that the Lift could
    cause subsequent users who were either unfit, untrained or incompetent to operate it.
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                          6
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    The foregoing acts and omissions by MPF constitute negligence, negligent entrustment
    and gross negligence.
    DAMAGES TO PLAINTIFFS
    25.             Defendants' combined negligence has proximately caused damage to
    Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which
    Plaintiffs pray judgment.
    26.     As a direct and proximate result of the occurrence made the basis of this lawsuit,
    Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum
    jurisdictional limits of this Court. Such damages include, but are not limited to: physical
    pain (past and future), physical impairment (past and future), medical expenses (past
    and future), loss of earning capacity (past and future), disfigurement (present and
    future), loss of income (past and future), emotional distress (past and future), and
    mental anguish (past and future).
    27.     As a direct and proximate result of the occurrence made the basis of this lawsuit,
    Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount
    in excess of the minimum jurisdictional limits of this Court. Carla's special damages
    include, but are not limited to: loss of consortium (past and future) and loss of
    household services (past and future).
    EXEMPLARY DAMAGES
    28.     Plaintiffs further allege that Defendants' acts and omissions, whether taken
    singularly or in combination, were aggravated by the kind of malice and reckless
    disregard for which the law allows the imposition of exemplary damages. TC's conduct
    amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                        7
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    to gross negligence as by the laws of Texas. CME is either directly liable for exemplary
    damages because of its conduct or liable because of its agent's acts. MPF's conduct
    amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,
    Plaintiffs seek such exemplary damages against each defendant named herein in an
    amount that exceeds the minimum jurisdictional threshold of the Court.
    JURY DEMAND
    29.     Plaintiffs request that a jury be convened to try the fact issues in this action. A
    jury fee has been tendered and accepted by the Smith County District Clerk.
    PRAYER
    VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to
    appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded
    damages which are set forth above and which are in the sum in excess of the minimum
    jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate
    permitted by law, post-judgment interest from the date of judgment until paid at the
    highest rate permitted by law, attorney fees, and for such other and further relief, both at
    law or in equity, to which Plaintiffs may be justly entitled.
    Respectfully submitted,
    THE LAW OFFICES OF ERNESTO D. SIGMON
    Isl Ernesto D. Sigmon
    ERNESTO D. SIGMON
    State Bar No. 24010397
    5872 Old Jacksonville Highway Suite 624
    Tyler, Texas 75703
    2141395-1546 (Telephone)
    9031944-7496 (Facsimile)
    ATTORNEY FOR PLAINTIFFS
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                        8
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    CERTIFICATE OF SERVICE
    The undersigned hereby certifies that a true and correct copy of the foregoing document
    has been served on all counsel of record on the 11th day of November 2014 as follows:
    VIA EMAIL
    Mr. Trey Yarbrough
    Yarbrough Wilcox, PLLC
    100 East Ferguson, Suite 1015
    Tyler, Texas 75702
    FAX: 903.595.0191
    ATTORNEYS FOR DEFENDANT
    TEXAS COLLEGE
    VIA EMAIL
    Wesson H. Tribble
    Dan McManus
    Tribble, Ross & Wagner
    3355 West Alabama Street, Suite 1200
    Houston, Texas 77098
    ATTORNEYS FOR DEFENDANT
    CHRISTIAN METHODIST EPISCOPAL CHURCH
    VIA EMAIL
    Ryan K. Geddie
    Martin, Disiere, Jefferson & Wisdom, LLP
    Tollway Plaza One
    16000 N. Dallas Parkway, Suite 800
    Dallas, Texas I 75248
    Phone: (214) 420-5500 I Fax: (214) 420-5501
    ATTORNEYS FOR DEFENDANT
    MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"
    Isl Ernesto D. Sigmon
    Ernesto D. Sigmon
    PLAINTIFFS' SIXTH AMENDED PETITION                                                                        9
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    Electronically Filed
    1212/2014 4 08 24 PM
    Lois Rogers, Smith County District Clerk
    Reviewed By Lana Fields
    CAUSE N0.13-3363-A
    GARRY L. ROLLINS and                                                       IN THE DISTRICT COURT
    CARLA D. ROLLINS
    Plaintiffs,
    Vs.                                                                         SMITH COUNTY, TEXAS
    TEXAS COLLEGE;
    CHRISTIAN METHODIST EPISCOPAL
    CHURCH and
    MPF INVESTMENTS, LLC D/B/A
    "A-1 RENT ALL"
    Defendants,                                                       7th JUDICIAL DISTRICT
    PLAINTIFFS' SEVENTH AMENDED ORIGINAL PETITION
    TO THE HONORABLE JUDGE OF THE COURT:
    COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),
    complaining of Texas College ("TC"); Christian Methodist Episcopal Church ("CME")
    and MPF Investments, LLC d/b/a A-1 Rent All ("A-1 ") (collectively "Defendants") and file
    this Seventh Amended Original Petition:
    DISCOVERY CONTROL PLAN LEVEL
    1.       Discovery is being conducted under Level 2 of the Discovery Control Plan
    pursuant to Texas Rule of Civil Procedure 190.3.
    PARTIES AND SERVICE
    2.      Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas
    County, Texas.
    PLAINTIFFS' SEVENTH AMENDED PETITION
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    3.      Defendant TC is a Texas Nonprofit corporation with its principal office in Smith
    County, Texas and has been served with process through its registered agent Dwight J.
    Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered
    in this matter through its attorney of record.
    4.      Defendant CME is a foreign nonprofit corporation organized under the laws of the
    state of Tennessee and was served with process at its principal place of business at
    4466 Elvis Presley Blvd, Suite 300 Memphis, Tennessee 38116-7181.                               CME has
    answered in this matter through its attorney of record.
    5.      Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas
    limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,
    Texas 75701. A-1 has answered in this matter through its attorney of record.
    CLAIM FOR RELIEF
    6.      Plaintiffs seek monetary relief in an amount over $1,000,000 but not to exceed
    $25,000,000. Plaintiffs also demand judgment for all other relief to which they may be
    entitled as a result of the harms and losses made the basis of this lawsuit.                           See
    Tex.R.Civ.P. 47(d).
    VENUE
    7.      Smith County, Texas is a county of proper venue for this suit in accordance with
    Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a
    substantial part of the events or omissions giving rise to this cause of action occurred in
    Smith County, Texas.
    AGENCY
    8.      At all times material hereto, Defendants acted by and through actual, apparent,
    ostensible, or by estoppel agents, acting within the course and scope of such agency.
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        2
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    FACTS
    9.      Garry L. Rollins (hereinafter "Rollins') is a maintenance worker employed by
    Texas College in the capacity of maintenance technician. Texas College itself operates
    under the "supervision, care and ownership" of CME and has rented heavy equipment
    "aerial work platforms" from A-1 on various occasions.
    10.     Rollins' formal work title was "Maintenance Technician". His office was in the TC
    Physical Plant (the "Plant").             Rollins reported to Roland Brackens, the Plant
    Superintendent, and to James Harris, Vice President of Business and Finance at TC.
    Rollins also supervised a three to four person maintenance crew.                          Rollins' overall
    responsibility at TC included general maintenance, light construction, driving detail and
    essentially anything else the school required. He was hired to work at TC in 2008.
    11.     During September 2013, Rollins was asked by his supervisor to help move some
    marble counter tops that were to be installed in the school's Science building. The
    slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.
    Rollins and one other worker to perform the task with no other assistance-man nor
    machine. While moving the slab, Mr. Rollins sneezed/coughed, dropped the object and
    suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins
    sought emergency medical care because of the incident and was advised not to drive.
    Rollins informed agents and employees of TC of his restriction and was subsequently
    removed from a TC driving task that he had been performing on Tuesdays and
    Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins
    from the task.
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        3
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    12.     A few weeks later, sometime during October 2013, the gymnasium ceiling at TC
    needed repair. TC rented a hydraulic "scissor lift" (the "Lift") from defendant A-1 for
    Plaintiff Rollins and others to use while doing the repairs.
    13.     The Lift is capable of reaching upwards of approximately 20 feet from the ground
    and is often accompanied by a safety harness to prevent worker injury. TC did not rent
    or purchase a harness for use with the Lift, nor did it purchase or rent any other
    personal protective equipment needed to ensure worker safety. Upon information and
    belief, A-1 did not offer or suggest that TC purchase or rent personal protective
    equipment for use with the Lift nor did it adequately confirm whether TC or its agents
    were "qualified personnel" with the training and experience needed to safely operate the
    Lift.   Upon information and belief, A-1 did not familiarize Rollins with the Lift and its
    operation nor did they offer to train Rollins. Rollins' immediate supervisor, Mr. Brackens
    did not check or confirm whether A-1 Rent All included an owner/operator manual with
    the Lift as required by its manufacturer, JLG.
    14.     On or around October 22, 2013 TC directed Rollins and others to use the Lift "as
    is" to make the repairs-minus training or supervision.                    After completing the work,
    Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported
    the incident to the TC human resources department as required. At the time, Rollins
    assumed his fall had been relatively inconsequential as he was able to walk away
    unassisted.
    15.     Three days later, on or around October 25, 2013, Rollins lost sensation in his
    legs and toes and was subsequently admitted to Zale Lipshy University Hospital in
    Dallas Texas where he underwent invasive neck surgery.
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        4
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    16.     Rollins is now convalescing at home, unable to walk unassisted and requires
    intensive at home physical therapy and care three times a week. He is no longer able
    to perform many of the household tasks he once did to assist his wife Carla with the
    maintenance and care of their home.
    17.     On or around December 6, 2013 Rollins received correspondence from TC
    advising him that he would be terminated if he does not return to work within 3 months.
    CAUSES OF ACTION
    TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE
    18.     Texas College was Rollins' employer at the time of his avoidable injury and owed
    him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's
    Compensation and does not carry any sort of insurance for work related injury.
    Defendant Texas College breached its duty of care to Rollins. Its breach includes and
    is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)
    furnish reasonably safe machinery or reasonably safe personal protective equipment for
    use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate
    help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins
    while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff
    Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions
    by TC constitute negligence and gross negligence.
    CHRISTIAN METHODIST EPISCOPAL CHURCH - VICARIOUS LIABILITY, ALTER
    EGO, NEGLIGENCE AND GROSS NEGLIGENCE
    19.     During the time of Plaintiff Rollins' avoidable injury, Defendant CME represented
    to the public through documents on file with the Texas Secretary of State that TC
    operates under the "supervision, care and ownership" of CME. CME has and continues
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        5
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    to represent to the general public that TC is one of its "affiliate" educational institutions,
    of which there are several.           CME makes extensive reference to TC throughout its
    internal documentation and by-laws, and the role it plays in establishing TC policies and
    procedures. CME also has a significant "financial relationship" with TC that has been
    reported to the IRS.
    20.     TC acted as CM E's agent at all times relevant to the facts made the basis of this
    lawsuit. CME is therefore liable for the torts of its agent as alleged and described herein
    and above and as recognized by the laws of Texas and the Restatement (2d) of Torts.
    21.     Plaintiffs further allege that CME exercises a measure of control over TC so as to
    qualify it as CME's "alter-ego" functioning as CME's mere tool or business conduit.
    CME has engaged in financial transactions pledging and leveraging Texas College
    assets; and controls the school through an elected body of officials composed
    predominately of CME officers and bishops acting on behalf of the CME-retaining for
    itself the power to merge, consolidate, convey, or terminate Texas College as it deems
    fit. The official bylaws of Texas College mandate that upon dissolution, the school's
    assets will revert back to CME. The elected body of officials 
    (referenced supra
    ) acts
    through various "committees", one of which established policies and procedures at the
    Texas College physical plant where Garry Rollins was employed for several years.
    These policies and procedures impacted employee training and employee safety at
    Texas College.
    22.     CME owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
    risk of injury to others. CME also owed Plaintiffs a duty to exercise reasonable care in
    performing services, whether gratuitously or for consideration that CME should
    recognize as necessary for the protection of other persons or things.
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        6
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    23.     CME breached its duties by failing to exercise reasonable care to secure Mr.
    Rollins' safety while employed at TC and in doing so significantly increased his risk of
    harm.     This breach makes CME liable to Plaintiffs vicariously and directly.                         The
    foregoing acts and omissions by CME constitute negligence and gross negligence.
    MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE, NEGLIGENT
    ENTRUSTMENT AND GROSS NEGLIGENCE
    24.     MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
    risk of injury to others as well as a duty to take affirmative action to avoid increasing the
    danger from a condition created by its conduct. Defendant MPF breached its duty of
    care to Plaintiffs. MPF's breach includes and is not limited to its failure to ensure that
    the Lift was being rented and used by competent and authorized persons; and to act
    reasonably and prudently in all manners regarding its rental transaction with TC and the
    steps it should have taken to prevent the readily foreseeable harm that the Lift could
    cause subsequent users who were either unfit, untrained or incompetent to operate it.
    The foregoing acts and omissions by MPF constitute negligence, negligent entrustment
    and gross negligence.
    DAMAGES TO PLAINTIFFS
    25.             Defendants' combined negligence has proximately caused damage to
    Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which
    Plaintiffs pray judgment.
    26.     As a direct and proximate result of the occurrence made the basis of this lawsuit,
    Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum
    jurisdictional limits of this Court. Such damages include, but are not limited to: physical
    pain (past and future), physical impairment (past and future), medical expenses (past
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        7
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    and future), loss of earning capacity (past and future), disfigurement (present and
    future), loss of income (past and future), emotional distress (past and future), and
    mental anguish (past and future).
    27.     As a direct and proximate result of the occurrence made the basis of this lawsuit,
    Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount
    in excess of the minimum jurisdictional limits of this Court. Carla's special damages
    include, but are not limited to: loss of consortium (past and future) and loss of
    household services (past and future).
    EXEMPLARY DAMAGES 1
    28.      Plaintiffs further allege that Defendants' acts and omissions, whether taken
    singularly or in combination, were aggravated by the kind of malice and reckless
    disregard for which the law allows the imposition of exemplary damages. TC's conduct
    amounts to gross negligence as defined by the laws of Texas. CME's conduct amounts
    to gross negligence as by the laws of Texas. CME is either directly liable for exemplary
    damages because of its conduct or liable because of its agent's acts. MPF's conduct
    amounts to gross negligence as defined by the laws of Texas. In light of the foregoing,
    Plaintiffs seek such exemplary damages against each defendant named herein in an
    amount that exceeds the minimum jurisdictional threshold of the Court.
    1
    Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs'
    Seventh Amended Petition). See Al Parker Buzek Co. v. Touchy, 
    788 S.W.2d 129
    , 130 (Tex.App.-Houston [1 11
    Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 
    344 S.W.2d 228
    , 231 (TexApp.-Houston 1961, no
    writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The
    proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for
    exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable
    for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of
    exemplary damages assessed against each defendant. See Fazrfield Ins. V. Stephens Martzn Pavzng, LP, 
    246 S.W.3d 653
    , 667 (Tex. 2008). :\owhere in CME's Special Exceptions to P's Sixth Amended Petition does it state legal
    authority supporting its objection to the manner in which Plaintiffs' have specially pied for exemplary damages.
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                              8
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    JURY DEMAND
    29.     Plaintiffs request that a jury be convened to try the fact issues in this action. A
    jury fee has been tendered and accepted by the Smith County District Clerk.
    PRAYER
    VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to
    appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded
    damages which are set forth above and which are in the sum in excess of the minimum
    jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate
    permitted by law, post-judgment interest from the date of judgment until paid at the
    highest rate permitted by law, attorney fees, and for such other and further relief, both at
    law or in equity, to which Plaintiffs may be justly entitled.
    Respectfully submitted,
    THE LAW OFFICES OF ERNESTO D. SIGMON
    Isl Ernesto D. Sigmon
    ERNESTO D. SIGMON
    State Bar No. 24010397
    5872 Old Jacksonville Highway Suite 624
    Tyler, Texas 75703
    2141395-1546 (Telephone)
    9031944-7496 (Facsimile)
    ATTORNEY FOR PLAINTIFFS
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        9
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    CERTIFICATE OF SERVICE
    The undersigned hereby certifies that a true and correct copy of the foregoing document
    has been served on all counsel of record on the 2nd day of December 2014 as follows:
    VIA EMAIL
    Mr. Trey Yarbrough
    Yarbrough Wilcox, PLLC
    100 East Ferguson, Suite 1015
    Tyler, Texas 75702
    FAX: 903.595.0191
    ATTORNEYS FOR DEFENDANT
    TEXAS COLLEGE
    VIA EMAIL
    Wesson H. Tribble
    Dan McManus
    Tribble, Ross & Wagner
    3355 West Alabama Street, Suite 1200
    Houston, Texas 77098
    ATTORNEYS FOR DEFENDANT
    CHRISTIAN METHODIST EPISCOPAL CHURCH
    VIA EMAIL
    Ryan K. Geddie
    Martin, Disiere, Jefferson & Wisdom, LLP
    Tollway Plaza One
    16000 N. Dallas Parkway, Suite 800
    Dallas, Texas I 75248
    Phone: (214) 420-5500 I Fax: (214) 420-5501
    ATTORNEYS FOR DEFENDANT
    MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"
    Isl Ernesto D. Sigmon
    Ernesto D. Sigmon
    PLAINTIFFS' SEVENTH AMENDED PETITION                                                                        10
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    Electronically Filed
    1/19/201510 03 49 AM
    Lois Rogers, Smith County District Clerk
    Reviewed By Lana Fields
    CAUSE N0.13-3363-A
    GARRY L. ROLLINS and                                                       IN THE DISTRICT COURT
    CARLA D. ROLLINS
    Plaintiffs,
    Vs.                                                                         SMITH COUNTY, TEXAS
    TEXAS COLLEGE and
    MPF INVESTMENTS, LLC D/B/A
    "A-1 RENT ALL"
    Defendants,                                                  7th JUDICIAL DISTRICT
    PLAINTIFFS' EIGHTH AMENDED ORIGINAL PETITION
    TO THE HONORABLE JUDGE OF THE COURT:
    COMES NOW PLAINTIFFS, Garry L. Rollins and Carla D. Rollins ("Plaintiffs"),
    complaining of Texas College ("TC") and MPF Investments, LLC d/b/a A-1 Rent All ("A-
    1") (collectively "Defendants") and file this Eighth Amended Original Petition:
    DISCOVERY CONTROL PLAN LEVEL
    1.       Discovery is being conducted under Level 2 of the Discovery Control Plan
    pursuant to Texas Rule of Civil Procedure 190.3.
    PARTIES AND SERVICE
    2.      Plaintiffs Garry L. Rollins and Carla D. Rollins are individuals residing in Dallas
    County, Texas.
    3.       Defendant TC is a Texas Nonprofit corporation with its principal office in Smith
    County, Texas and has been served with process through its registered agent Dwight J.
    PLAINTIFFS' EIGHTH AMENDED PETITION
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    Fennell Sr. at 2404 North Grand Avenue Tyler, Texas 75702-1962. TC has answered
    in this matter through its attorney of record.
    4.      Defendant MPF Investments, LLC d/b/a A-1 Rent All ("A-1" or "MPF") is a Texas
    limited liability company with its principal office at 2505 S Southeast Loop 323 Tyler,
    Texas 75701. A-1 has answered in this matter through its attorney of record.
    CLAIM FOR RELIEF
    5.      Plaintiffs seek monetary relief in an amount over $1,000,000.                      Plaintiffs also
    demand judgment for all other relief to which they may be entitled as a result of the
    harms and losses made the basis of this lawsuit. See Tex.R.Civ.P. 47(d).
    VENUE
    6.      Smith County, Texas is a county of proper venue for this suit in accordance with
    Texas Civil Practice and Remedies Code Sections 15.001 and 15.002 et. seq. All or a
    substantial part of the events or omissions giving rise to this cause of action occurred in
    Smith County, Texas.
    AGENCY
    7.      At all times material hereto, Defendants acted by and through actual, apparent,
    ostensible, or by estoppel agents, acting within the course and scope of such agency.
    FACTS
    8.      Garry L. Rollins (hereinafter "Rollins") is a maintenance worker employed by
    Texas College in the capacity of maintenance technician. Texas College has rented
    heavy equipment "aerial work platforms" from A-1 on various occasions.
    9.      Rollins' formal work title was "Maintenance Technician". His office was in the TC
    Physical Plant (the "Plant").             Rollins reported to Roland Brackens, the Plant
    Superintendent, and to James Harris, Vice President of Business and Finance at TC.
    PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       2
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    Rollins also supervised a three to four person maintenance crew.                         Rollins' overall
    responsibility at TC included general maintenance, light construction, driving detail and
    essentially anything else the school required. He was hired to work at TC in 2008.
    10.     During September 2013, Rollins was asked by his supervisor to help move some
    marble counter tops that were to be installed in the school's Science building. The
    slabs of marble themselves weighed anywhere from 150-185 pounds. TC asked Mr.
    Rollins and one other worker to perform the task with no other assistance-man nor
    machine. VVhile moving the slab, Mr. Rollins sneezed/coughed, dropped the object and
    suffered a momentary loss of consciousness. On or around September 9, 2013 Rollins
    sought emergency medical care because of the incident and was advised not to drive.
    Rollins informed agents and employees of TC of his restriction and was subsequently
    removed from a TC driving task that he had been performing on Tuesdays and
    Thursdays. Upon information and belief, Mr. Brackens or Mr. Harris removed Rollins
    from the task.
    11.     A few weeks later, sometime during October 2013, the gymnasium ceiling at TC
    needed repair. TC rented a hydraulic "scissor lift" (the "Lift') from defendant A-1 for
    Plaintiff Rollins and others to use while doing the repairs.
    12.     The Lift is capable of reaching upwards of approximately 20 feet from the ground
    and is often accompanied by a safety harness to prevent worker injury. TC did not rent
    or purchase a harness for use with the Lift, nor did it purchase or rent any other
    personal protective equipment needed to ensure worker safety. A-1 did not offer or
    suggest that TC purchase or rent personal protective equipment for use with the Lift nor
    did it adequately confirm whether TC or its agents were "qualified personnel" with the
    training and experience needed to safely operate the Lift. A-1 did not familiarize Rollins
    PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       3
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    APPENDIX 36
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    with the Lift and its operation nor did it offer to train Rollins. A-1 Rent All did not include
    an owner/operator manual with the Lift as required by the manufacturer, JLG.
    13.     On or around October 22, 2013 TC directed Rollins and others to use the Lift "as
    is" to make the repairs-minus training or supervision.                    After completing the work,
    Rollins fell from the Lift as he was attempting to exit to safety. He immediately reported
    the incident to the TC human resources department as required. TC did not formally
    investigate the incident nor did it report Mr. Rollins' workplace fall to OSHA.                     At the
    time, Rollins assumed his fall had been relatively inconsequential as he was able to
    walk away unassisted.
    14.     Three days later, on or around October 25, 2013, Rollins lost sensation in his
    legs and toes and was subsequently admitted to Zale Lipshy University Hospital in
    Dallas Texas where he underwent invasive neck surgery.
    15.     Rollins is now convalescing at home, unable to walk unassisted and requires
    intensive at home physical therapy and care three times a week. He is no longer able
    to perform many of the household tasks he once did to assist his wife Carla with the
    maintenance and care of their home.
    16.     On or around December 6, 2013 Rollins received correspondence from TC
    advising him that he would be terminated if he does not return to work within 3 months.
    CAUSES OF ACTION
    TEXAS COLLEGE - NEGLIGENCE AND GROSS NEGLIGENCE
    17.     Texas College was Rollins' employer at the time of his avoidable injury and owed
    him a special duty of care at law. Texas College is a non-subscriber to Texas Worker's
    Compensation and does not carry any sort of insurance for work related injury.
    Defendant Texas College breached its duty of care to Rollins. Its breach includes and
    PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       4
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    is not limited to Defendant's failure to: 1) provide a reasonably safe workplace; 2)
    furnish reasonably safe machinery or reasonably safe personal protective equipment for
    use with the Lift and for use in lifting the marble slab counter top; 3) provide adequate
    help in the performance of work; 4) train and/or properly supervise Plaintiff Garry Rollins
    while using the Lift and lifting the marble slab counter top; and 5) to ensure that Plaintiff
    Garry Rollins was fit to perform work on a scissor lift. The foregoing acts and omissions
    by TC are violations of the Texas Labor Code (Chapter 411 et. seq.), the common laws
    of Texas, and various other rules and regulations pertaining to worker safety. As such,
    TC's conduct with respect to Garry Rollins constitutes negligence and gross negligence.
    MPF INVESTMENTS, LLC D/B/A "A-1 RENT ALL" - NEGLIGENCE AND GROSS
    NEGLIGENCE
    18.     MPF owed Plaintiffs a duty to exercise reasonable care to avoid a foreseeable
    risk of injury to others as well as a duty to take affirmative action to avoid increasing the
    danger from a condition created by its conduct. Defendant MPF breached its duty of
    care to Plaintiffs. MPF's breach includes and is not limited to its failure to: 1) ensure that
    the Lift was being rented and used by competent and authorized persons; 2) deliver the
    Lift in "fit for service" condition prior to use; 3) offer training or familiarization with the
    Lift; and 4) to act as a reasonable and prudent renter of heavy machinery under the
    circumstances in all manners pertaining to the transaction with TC and the steps it
    should have taken to prevent the readily foreseeable harm that could result from unfit,
    untrained or incompetent operators using the Lift. The foregoing acts and omissions by
    MPF constitute negligence and gross negligence.
    PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       5
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    Page 502
    DAMAGES TO PLAINTIFFS
    19.              Defendants' combined negligence has proximately caused damage to
    Plaintiffs in an amount that exceeds the jurisdictional limits of this Court for which
    Plaintiffs pray judgment.
    20.     As a direct and proximate result of the occurrence made the basis of this lawsuit,
    Plaintiff Garry L. Rollins has sustained damages in an amount in excess of the minimum
    jurisdictional limits of this Court. Such damages include, but are not limited to: physical
    pain (past and future), physical impairment (past and future), medical expenses (past
    and future), loss of earning capacity (past and future), disfigurement (present and
    future), loss of income (past and future), emotional distress (past and future), and
    mental anguish (past and future).
    21.     As a direct and proximate result of the occurrence made the basis of this lawsuit,
    Plaintiff Carla D. Rollins (Garry's spouse) has sustained special damages in an amount
    in excess of the minimum jurisdictional limits of this Court. Carla's special damages
    include, but are not limited to: loss of consortium (past and future) and loss of
    household services (past and future).
    EXEMPLARY DAMAGES 1
    22.      Plaintiffs further allege that Defendants' acts and omissions, whether taken
    singularly or in combination, were aggravated by the kind of malice and reckless
    1
    Exemplary damages are considered special damages and must be specially pleaded (as they are here in Plaintiffs'
    Eighth Amended Petition). See Al Parker Buzek Co. v. Touchy, 
    788 S.W.2d 129
    , 130 (Tex.App.-Houston [1 11
    Dist.] 1990, orig. proceeding); Wnght v. Rosenbaum, 
    344 S.W.2d 228
    , 231 (TexApp.-Houston 1961, no
    writ)(issue on exemplary damages properly excluded because P did not plead for exemplary damages). The
    proportionate responsibility chapter of the Texas Civil Practice & Remedies Code does not apply to claims for
    exemplary damages and in cases with multiple defendants, the defendants cannot be held jointly and severally liable
    for exemplary damages. See Tex.Civ.Prac. & Rem. Code sec.41.006. The fact-finder must specify the amount of
    exemplary damages assessed against each defendant. See Fazrfield Ins. V Stephens Martzn Pavzng, LP, 
    246 S.W.3d 653
    ,667(Tex.2008}
    PLAINTIFFS' EIGHTH AMENDED PETITION                                                                               6
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    APPENDIX 39
    Page 503
    disregard for which the law allows the imposition of exemplary damages. TC's conduct
    amounts to gross negligence as defined by the laws of Texas. MPF's conduct amounts
    to gross negligence as defined by the laws of Texas. In light of the foregoing, Plaintiffs
    seek such exemplary damages against each defendant named herein in an amount that
    exceeds the minimum jurisdictional threshold of the Court.
    JURY DEMAND
    23.     Plaintiffs request that a jury be convened to try the fact issues in this action. A
    jury fee has been tendered and accepted by the Smith County District Clerk.
    PRAYER
    VVHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited to
    appear and answer herein, and that upon final jury trial, that Plaintiffs be awarded
    damages which are set forth above and which are in the sum in excess of the minimum
    jurisdictional limits of this Court, costs of court, prejudgment interest at the highest rate
    permitted by law, post-judgment interest from the date of judgment until paid at the
    highest rate permitted by law, attorney fees, and for such other and further relief, both at
    law or in equity, to which Plaintiffs may be justly entitled.
    Respectfully submitted,
    THE LAW OFFICES OF ERNESTO D. SIGMON
    Isl Ernesto D. Sigmon
    ERNESTO D. SIGMON
    State Bar No. 24010397
    416 West Saulnier Street
    Houston, Texas 77019
    2141395-1546 (Telephone)
    7131485-6056 (Facsimile)
    ATTORNEY FOR PLAINTIFFS
    PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       7
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    CERTIFICATE OF SERVICE
    The undersigned hereby certifies that a true and correct copy of the foregoing document
    has been served on all counsel of record on the 19th day of January 2015 as follows:
    VIA EMAIL
    Mr. Trey Yarbrough
    Yarbrough Wilcox, PLLC
    100 East Ferguson, Suite 1015
    Tyler, Texas 75702
    FAX: 903.595.0191
    ATTORNEYS FOR DEFENDANT
    TEXAS COLLEGE
    VIA EMAIL
    Ryan K. Geddie
    Martin, Disiere, Jefferson & Wisdom, LLP
    Tollway Plaza One
    16000 N. Dallas Parkway, Suite 800
    Dallas, Texas 75248
    Phone: (214) 420-5500 I Fax: (214) 420-5501
    ATTORNEYS FOR DEFENDANT
    MPF INVESTMENTS LLC DIBIA "A1 - RENT ALL"
    Isl Ernesto D. Sigmon
    Ernesto D. Sigmon
    PLAINTIFFS' EIGHTH AMENDED PETITION                                                                       8
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    APPENDIX 42
    APPENDIX 43
    APPENDIX 44
    APPENDIX 45
    APPENDIX 46
    STATE OF TEXAS              §
    DALLAS COUNTY               §
    Before me, the undersigned notary, on this day personally appeared Garry L. Rollinl, the affiant, whose
    identity is known to me. After I administered an oath, affiant testified as follows:
    1.   "My name is Garry L. Rollins. r am over 18 years of age, of sound mind, and capable of making this
    affidavit. The entire facts stated in this affidavit are within my personal knowledge and personal
    experience and are true and correct."
    2.   "I gave sworn testimony in this case at my deposition on July 7. 2014. I am a former employee of
    Texas Colleae in Tyler, Texas. I worked at Texas College as a Maintenance Tech and Supervisor for
    about six years. I was injured on the job at Texas College on two occasions: During early September
    2013 and on October 22, 2013. Roland Brackens was my immediate supervisor during the times I was
    injured at Texas College.   '-Ii B:aellCiIS    I "79.   sm;s,) k) 'i'        naml   sf NUIR ti ' dC's cenMA*
    . lilt ft JOlA W,lhS:. . . . g••• lsem' rempEI) dfel liOik fe, TillIS Co"'g' wh ll •                b,    'II'?   glng
    emplbjed dieta IS SUpe.h.wads"lUfdie Ph;sl"l PlBiitsiU: AwsSh it illa'u ti.1I1 011'. E'Bili 'of
    It••''S2 POIl8j4 M' g. ok.,.; 'tr"lh RWtp, nn,s,'si ts I"                d   habU. fi.n 'k.   17k    n"              c
    !I   iallEge        slab ecs'Ls: top.   'It   ,I. 8uichCO BaUdl", but AD WiSdwcsst\t1 Sid did             j'   I'· the
    111= bue of diC pilU lit oew qUlLIS: As arid Ie, 'hs nrd'llJ2S' ,                       U•• 'ill" l'b .1. d
    MS' i t atlo:: MCiillE tfdYMted wah 1.11. Blwlsms 11 It 'h' "'ork            bed    nm 'xc 2?p"'wd. On the
    day I got hurt, Mr. Brackens instructed me and another employee to move the counter tops. I informed
    Mr. Brackens that these counters were pure marble and extremely heavy sd. af whom It. .
    kncwJ'di' gf'R,J' b'esko"ts spd rediae' biS?Ii'. The only reason I got on the lift is because I was told
    APPENDIX 50
    Page 4134
    to do so and was made to feel as though my job depended on it. I didn't want to do it. If Mr.
    Brackens had looked at the owner's manual and informed me that a person with blackouts shouldn't
    be on a lif\, I would not have gotten on. Mr. Brackens however did not do this. He did not look at a
    safety manual, and if he did, he certainly did not inform or warn me that a person in my condition
    shouldn't be on a scissor lift. Th,l'      III'S   n"I.., i....", at 'k.,    ",11'8 •• I .d ,Rn.'ll'
    .1111111 Widl WIiCit ascii rr In P'S!'" 'nw, u ' Id te db "OIl dtit lie   was dUL alt:wd te ••• ni I"   burt.
    "'lit   emple) ..   liZ 1&1   It ad. I had never had any problems at Texas College in terms of my work
    and performance evaluations and only began Iulvlng some difficulty when Mr. Brackens became
    Superintendent of the Physical Plant. Even then my work evaluations ranked me as eitheroutstanding
    or very good."
    Sworn to and subscribed before me by Garry Rolli•• 0
    APPENDIX 51
    Page 4135
    APPENDIX 52
    APPENDIX 53
    AFFIDAVIT
    STATE OF TEXAS             §
    DALLAS COUNTY              §
    Before me, the undersigned notary, on this day personally appeared SAMUEL L.
    BARNETT, the affiant, whose identity is known to me. After I administered an oath, affiant
    testified as follows:
    1.     "My name is Samuel L. Barnett. I am over 18 years of age, of sound mind, and capable
    of making this affidavit. The facts stated in this affidavit are within my personal knowledge
    and are true and correct."
    2.      "As an introduction, I am a neurological surgeon and associate professor in the
    Department of Neurological Surgery at The University of Texas Southwestern Medical Center
    at Dallas. My undergraduate training was done at Indiana University, Bloomington (1991-
    1995). I received my medical degree from the University of Cincinnati College of Medicine
    (1995-1999). My surgical internship was done at the University of Texas Southwestern
    Medical Center (1999-2000). I completed a neurosurgical residency at the University of Texas
    Southwestern Medical Center (2000-2005). I received fellowship training in skull base and
    cerebrovascular neurosurgery at the University of South Florida, Tampa (2005-2006). I was a
    faculty member at the University of Mississippi School of Medicine for one year (2006-2007)
    prior to returning to Dallas. Since that time, I have been a faculty member in the Department
    of Neurological Surgery at The University of Texas Southwestern Medical Center (2007-
    Present). I am a member of the hospital staffs at Zale Lipshy University Hospital, Parkland
    Memorial Hospital and the Dallas VA Medical Center. I am board certified by the American
    Board of Neurological Surgery and I am licensed to practice medicine in Texas and
    Mississippi. In my current practice, I regularly evaluate and manage patients with traumatic
    and degenerative spinal conditions."
    3.     "I have completed my review of Garry Rollins' medical records. Items reviewed
    include Emergency Room records dated 10/25/2013, inpatient medical records from
    10/26/2013 - 11111/2013 and 11115/2013 - 11/20/2013 and an MRI scan of the cervical spine
    dated 10/25/2013. I personally saw and evaluated Mr. Rollins' on 11115/2013, 11/25/2013,
    12/3/2013, 12/16/2013, 12/30/2013, 1/13/2014, 2/17/2014, 3/17/2014, 5/19/2014 and
    6/23/2014 and I have reviewed those records as well."
    4.        "In briefly summarizing Mr. Rollins' medical records, Mr. Rollins has a history of
    sarcoidosis, asthma, syncopal episodes and a previous C5-C7 anterior cervical fusion. Mr.
    Rollins was involved in a fall at work on October 22, 2013. Mr. Rollins was getting off of a
    lift, fell backwards and hit the back of his head. Over the next several days, he began having
    progressive problems with ambulation. In addition, he had significant neck pain. These
    complaints, as well as a syncopal episode, ultimately prompted a visit to the emergency
    department at St. Paul Hospital on 10/25/2013. His evaluation included an MRI of the cervical
    spine which was performed on the same day. I have reviewed this MRI scan that demonstrates
    multi-level degenerative changes, evidence of prior fusion from CS-C1 and severe spinal
    APPENDIX 54
    Page 4048
    at C4-5. There is some ussoci:ited abnom1al signal within the spinal cord at this level
    cvn.sistent with a spinal wrd contusion. Bll$ecl on these tinclings, Mr. Rollills was transterrcd
    to Znlc-Lipshy University l·fospitul   l\1rthcr cure."
    5.       ''On my initinl              I found that he had full strength in his upper extremities and
    i.lightly diminished strength in his bilutera l lower extremities. He had                      i11
    biceps, triceps, patellar 1md Achilk's rellcxes bilaterally. A lfoffman's sign was
    bilaterally.     Mr. Rollins hud decreased scnsotion to light touch. pinprick, pai11 nnd
    p1oprioccp1km in his k1wcr extremities a11938 S.W.2d 29
    , 30 (Tex. 1997);
    see TEX. R. Crv. P. 166a(f). Facts must be proven in the same manner or type of evidence that
    would be admissible at trial. See TEX. R. Crv. P. 166a(c). If a party's summary-judgment proof
    contains evidence that would not be admissible at trial, the appropriate avenue to challenge such
    is through written objections and requesting that the inadmissible summary-judgment proof be
    stricken. See TEX. R. Crv. P. 166a(f)
    I.      Plaintiffs' Seventh and Eighth Amended Petition
    A party cannot rely on factual assertions in its own pleadings as summary-judgment
    proof. Laidlaw Waste Sys. v. City of Wilmer, 
    904 S.W.2d 656
    , 660 (Tex. 1995). Texas College
    objects to, and requests that the Court strike any reference by Plaintiffs to their amended
    petitions in the Response, as they are not competent evidence on which Plaintiffs may rely.
    II.     Excernts from Deposition of Roland Brackens
    Not Qualified to Testify
    Deposition Testimony: 18:4 - 18:25; 22: 15 -
    23: 14; 24:8 - 24: 11; 24:23 - 25:6.
    Mr. Brackens also testified that OSHA imposes Pg. 16
    a duty on employers to train employees that are
    using scissor lifts so that they may recognize
    "associated work hazards", and that he did not
    train Mr. Rollins on operating a lift under this
    su ervision at Texas Colle e - r OSHA.
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE20F19
    APPENDIX 65
    Page 3667
    Q: (MR. SIGMON): And if you look at - if you Pg. 17
    look at subsection (a) of [OSHA] Section
    1926.454, it states that, "The employer shall
    have each employee who performs work while
    on a scissor lift trained by a person qualified in
    the subject matter to recognize the hazards
    associated with the type of set - of scissor lift
    being used and to understand the procedures to
    control or minimize those hazards." And you've
    just testified that that did not take place,
    correct?
    A. Correct.
    Q. So the rules that we just spoke about, Pg. 17
    specifically those OSHA examples, those are
    safety rules, right?
    A. Correct.
    Q. But my question to you, Mr. Brackens, is, Pg. 18
    you just testified that OSHA section 1926.454
    was not followed. It was violated. That rule
    was broken. No training was given by a
    competent person to these employees at Texas
    College on how to operate a scissor lift.
    A. Okay.
    Q. Correct?
    A. Yes, I correct - yes, I did say that.
    Mr. Brackens was not qualified by Plaintiffs to testify as an expert on specific OSHA
    rules or regulations or make any conclusory opinions on same, and made it clear through his
    testimony that he is not an expert on same. Brackens dep. 18:8-14. While he may be familiar
    generally with OSHA, Plaintiffs have attempted to obtain definitive legal conclusions from
    Brackens and elicit from him opinion testimony on specific standards. While he has been shown
    to be knowledgeable and experienced on the mounting, dismounting, and the operation of scissor
    and boom lifts and other matters addressed in his deposition, OSHA standards and their
    application to specific workplace items are not among those matters. Texas College objects to
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                       PAGE30F19
    APPENDIX 66
    Page 3668
    the specific portions referenced above and requests that this objection be sustained, the
    incompetent evidence be stricken, and the Court disregard same.
    III.    The JLG Owner's Manual Model 1930-ES
    Texas College objects to Plaintiffs' attempted use of a purported JLG Owner's Manual
    on the basis that Plaintiffs have failed to establish its authenticity or relevance, or lay any proper
    predicate for the admissibility of same, either through a qualified witness or otherwise. The
    purported manual is inadmissible hearsay and not competent as summary-judgment proof. No
    exception to the hearsay rules apply to the subject manual filed as an independent document with
    the Court. Since Plaintiffs are attempting to offer statements within the JLG Owner's Manual to
    prove the matter asserted, the JLG Owner's Manual itself, and the statements referenced within
    it, are inadmissible hearsay.
    Texas College's objections to the JLG Owner's Manual should be sustained, any
    reference to the JLG Owner's Manual should stricken, and the JLG Owner's Manual and any
    reference to it should be disregarded by the Court. The references within Plaintiffs' response
    that Texas College requests to be stricken are listed below.
    p
    Page 16
    Use extreme caution when entering or leaving
    platform. Ensure that the scissor arm assembly
    is fully lowered. Face the machine when
    entering or leaving the platform. Always
    maintain "three point contact" with the machine
    using two hands and one foot or two feet and
    one hand at all times during entry and exit.
    JLG, the manufacturer of the subject lift, also Page 18
    requires that lift operators be trained.
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                              PAGE4OF19
    APPENDIX 67
    Page 3669
    There is developed evidence (affinned by Page 18
    common sense, and 
    discussed supra
    ) that a
    scissor lift is a piece of machinery that requires
    extreme caution because of its potential dangers
    and hazards.
    The undisputed evidence is that a person in Mr. Page 20
    Rollins condition should not have been
    operating this type of machinery and that it is
    incumbent on the employer to recognize these
    potential hazards
    The undisputed evidence is that a person in Mr. Page 22
    Rollins condition should not have been on or
    ooerating this type of machinery
    IV.     Affidavit of Garn Rollins
    An affidavit attached in response to a motion for summary judgment must contain facts
    that would be admissible in evidence at trial. TEX. R. Crv. P. 166a(f); United Blood Servs. v.
    Longoria, 938 S.w.2d 29, 30 (Tex. 1997). Set forth below are those portions of Rollins' affidavit
    and the corresponding references within Plaintiffs' response the College respectfully submits
    should be stricken, and the supporting grounds.           However, the affidavit is so replete with
    inadmissible hearsay, irrelevant testimony, and sworn statements that fundamentally contradict
    Rollins' earlier sworn deposition testimony (making it a "Sham Affidavit"), the College
    respectfully requests in the alternative that it be stricken in its entirety.
    A summary judgment affidavit must affinnatively establish the basis for affiant's
    personal knowledge of the infonnation in the affidavit. TEX. R. Crv. P. 166a(f); Kerlin v. Arias,
    
    274 S.W.3d 666
    , 668 (Tex. 2008). A statement that the affidavit is based on personal knowledge
    is insufficient. Kerlin at 668. Furthennore, Rule 602 of the Texas Rules of Evidence provides
    that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a
    finding that the witness has personal knowledge of the matter."
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE5OF19
    APPENDIX 68
    Page 3670
    Only relevant evidence is admissible. TEX. R. Evm. 402. Relevant evidence is evidence
    that has "any tendency to make the existence of any fact that is of consequence to the
    determination of the action more probable or less probable than it would be without the
    evidence." TEX. R.   EVID.   401.
    Hearsay statements in summary judgment affidavits are not competent evidence and
    should not be considered by the court. Powell v. Vavro, A1cDona/d & Assocs., 
    136 S.W.3d 762
    ,
    765 (Tex. App. - Dallas 2004, no pet.). 'Hearsay' is 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. Evm. 801(d). Hearsay is not admissible evidence "except as provided
    by statute or these rules or by other rules prescribed pursuant to statutory authority." TEX. R.
    EVID.   802.
    Mr. Brackens, through RBHR, attempted to get Lack of Personal Knowledge
    a contract from the school to move several large Relevance
    mari>le slab counter tops in the Science Building Hearsay
    but was unsuccessful and did not get the work
    because of the price he was quoting. As a
    result, the worlc went undone for a time. The
    school administration became frustrated with
    Mr. Brackens that the work had not been
    completed.
    Obiectionable Reference in Resnonse                               Pae:e Reference
    In fact, Mr. Rollins confirms that the actual job Pg. 13
    of moving the mari>le was originally meant to
    be outsourced, hence Mr. Brackens' effort to
    win the work contract through his side business,
    "RBHR".
    The foregoing statements in paragraph 2 should be disregarded by the Court as irrelevant
    to this litigation. They do not establish or make more/less probable the elements Plaintiffs are
    required to prove for their allegations against Texas College, as this portion does not make it
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                               PAGE6OF19
    APPENDIX 69
    Page 3671
    more/less probable that Texas College owed a duty to Plaintiffs, that Texas College breached an
    alleged duty owed to Plaintiffs, or that any breach of an alleged duty Texas College owed to
    Plaintiffs was the producing/proximate cause of Plaintiffs' injuries. Therefore, the foregoing
    statements and references should be disregarded by the Court and stricken as completely
    irrelevant.
    The foregoing statements in paragraph 2 of Rollins' affidavit, and the reference in
    Plaintiffs' response, should also be stricken and disregarded by the Court because Rollins has
    wholly failed to show how he has personal knowledge to testify to same. They are inadmissible
    hearsay. Rollins simply states them in a conclusory manner. Therefore, Texas College objects
    to said statements and moves the Court to strike and disregard them.
    Lack of Personal Knowledge, competency,
    s eculative
    This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because Mr. Rollins lacks personal knowledge or competency to testify
    to the matters contained therein. Mr. Rollins has in no way demonstrated any knowledge or
    competency to testify on the weight of the marble slab, much less that it weighs "at least 150
    lbs." Rollins' statement constitutes pure speculation. Texas College objects to same and moves
    the Court to disregard and strike it.
    The medical excuses attached to my affidavit as No Predicate
    "Exhibit A" are the excuses that I received Hearsay
    personally from my doctors and that I gave to
    Texas College.
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE 70F 19
    APPENDIX 70
    Page 3672
    The generic "medical excuses" Mr. Rollins' references in his affidavit and attached as
    Exhibit A are hearsay for which no exception applies and for which no proper predicate has been
    laid.   Furthermore, said documents provide no reason for the medical visit nor recite any
    restriction, and are in no way probative of Plaintiffs' claims. Texas College objects to same and
    moves that the Court disregard and strike them.
    We were not trained or instructed on proper Lack of Personal Knowledge
    lifting techniques or given any direction for
    performing a safe lift of the size.
    Rollins has not established in any way that he has personal knowledge as to what training
    or instruction other employees of Texas College had received. Without elaborating on how this
    alleged knowledge was acquired, there is insufficient information in the affidavit to establish that
    Mr. Rollins knew what type of training other Texas College employees received, what
    instructions on proper lifting techniques other Texas College employees received, or what
    directions were provided to other Texas College employees.              Therefore, Texas College's
    objection for this portion of Mr. Rollins' affidavit should be sustained, these portions should be
    stricken, and these portions should not considered by the Court.
    Not Qualified as Expert
    Hearsay
    This portion within Section 2 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because Mr. Rollins is not qualified to testify to said matters and the
    information is hearsay. This is made clear by his reference to the defective exhibit which does
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGES OF 19
    APPENDIX 71
    Page 3673
    not diagnose or even recite "experiencing blackouts." Mr. Rollins is not competent to testify as
    to his medical diagnosis, as he is neither a doctor nor designated as an expert in medicine.
    Therefore, Texas College's objection to this inadmissible embellishment and misstatement in
    Rollins' affidavit should be sustained, and this portion stricken and not considered by the Court.
    "I was also instructed by the doctor to avoid Hearsay
    driving. The doctor's note and record attached
    to my affidavit as Exhibit B was the note that I
    received from the doctor at Baylor."
    This portion within paragraph 2 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because the information is hearsay. Any purported statements made by
    "the doctor" to Mr. Rollins would be hearsay to which no exception applies. Furthermore, the
    doctor's note and records attached to Mr. Rollins' affidavit as Exhibit Bare hearsay for which no
    exception applies. Mr. Rollins' sole purpose for including such records is to prove the truth of
    the matter asserted by Mr. Rollins. Therefore, Texas College's objection for this portion of Mr.
    Rollins' affidavit and the exhibit referenced should be sustained, this portion and exhibit should
    be stricken, and this portion and the exhibit referenced disregarded by the Court.
    "Mr. Harris and Mr. Brackens removed me from Lack of Personal Knowledge
    the driving job because they didn't want to Hearsay
    endanger students if I was to blackout while
    behind the wheel."
    Mr. Rollins informed Texas College of these Pg. 2
    infirmities and was later removed from driving
    Texas College students to and from campus as a
    safety precaution.
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 9OF19
    APPENDIX 72
    Page 3674
    "prompting the school to remove him from a Page 19
    driving detail he performed."
    This portion within Section 2 of Mr. Rollins' affidavit, and the references in Plaintiffs'
    response, should be stricken and not considered by the Court because Mr. Rollins lacks personal
    knowledge to testify to the matters contained therein. Mr. Rollins has not established in any way
    that he has personal knowledge as to why he was removed from the driving job. To the contrary,
    Mr. Rollins is merely advancing speculative self-serving "reasons" and stands in direct
    contradiction to the testimony of a Texas College employee who testified as to the actual reason
    and who has been shown to have knowledge. Texas College moves the Court to disregard and
    strike this portion of Mr. Rollins' affidavit and the references in Plaintiffs' response.
    Under Mr. Brackens authority at Texas College Lack of Personal Knowledge
    there was never an emphasis on safety or Hearsay
    training for any of the worlc we were assigned. Conclusocy
    While under his supervision and leadership at
    Texas College, none of the employees were ever
    sent to any kind of safety training sessions or
    OSHA workshops. This kind of thing made me
    and other employees question the school's
    attitude toward our safe .
    This portion within Section 3 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court. Mr. Rollins has not established that he has personal knowledge as to
    what type of training sessions or worlcshops other employees were sent to nor the attitude or
    feelings of other employees toward Texas College. Rollins offers nothing in his affidavit to
    establish any personal knowledge as to what other employees informed him, that they did not
    receive training, that they did not attend any workshops, or how he acquired the other
    employees' beliefs in regard to the school's attitude toward safety. Without providing such
    information, Mr. Rollins has failed to establish that he has the requisite personal knowledge
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                             PAGE lOOF 19
    APPENDIX 73
    Page 3675
    required to be considered competent to testify to such matters and is merely advancing self-
    seiving speculation on the training received and beliefs of other employees. Therefore, Texas
    College's objection for this portion of Mr. Rollins' affidavit should be sustained, this portion
    should be stricken, and this portion should not considered by the Court.
    Lack of Personal Knowledge
    This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because Mr. Rollins lacks personal knowledge to testify to the matters
    contained therein. Mr. Rollins has not established in any way that he has personal knowledge as
    to what type of training other employees received and this conclusoiy statement is in direct
    conflict with the testimony of Michael Johnson and Steve Barron, two employees of the College
    who testified that they were trained to operate a scissor lift. Barron has testified that he was
    trained by Rollins. Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit
    should be sustained, and this portion should be stricken, and disregarded by the Court.
    I "Sham" affidavit
    After coming down from the aerial work, Mr. Page 2
    Rollins lost consciousness as he was exiting the
    lift's work platform and fell from the top of the
    platform straight back onto the gym floor.
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                          PAGE 11OF19
    APPENDIX 74
    Page 3676
    "Gary Rollins states both in his affidavit and Page 19
    Amended Petition that he lost consciousness
    while existing from the lift."
    "that he lost consciousness existing the lift;"        Page 20
    Texas College objects to this portion of Rollins' Affidavit or any similar statement in his
    affidavit, and the corresponding references in Plaintiffs' response, on the basis that it is a "sham"
    affidavit in that respect. An affidavit that contradicts the affiant's previous deposition testimony
    without any explanation for the change in testimony and is intended to create a fact issue to
    defeat summary judgment is considered a "sham" affidavit. Farroux v. Denny's Restaurants,
    Inc., 
    962 S.W.2d 108
    , 111 (Tex. App. - Houston [1st Dist.] 1997, no pet.).             Without any
    explanation as to the change in testimony, the court is to assume that the sole purpose of the
    affidavit was to avoid summary judgment. Pando v. Southwest Convenience Stores, 
    242 S.W.3d 76
    , 79 (Tex. App. - Eastland 2007, no pet.). "Sham" affidavits are not competent summary
    judgment evidence and cannot raise a fact issue. 
    Id. Mr. Rollins
    testified multiple times in his deposition that he did not know if he passed out
    or lost consciousness.    Garry Rollins' Deposition, 141:1 - 141:6; 141:25 - 142:6; 142:15 -
    143: 1. Despite Mr. Rollins testifying under oath multiple times that he does not know whether
    he passed out or lost consciousness, he now takes the firm position that he in fact did pass out or
    lose consciousness. Rollins has reversed himself and now taken this contradictory position,
    without explanation, in a misguided effort to create a fact issue, where none exists, regarding
    whether Texas College breached a duty of care by allegedly forcing Mr. Rollins to utilize the
    scissor lift when it purportedly knew Rollins had an alleged history of "seizures and blackouts."
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 12 OF 19
    APPENDIX 75
    Page 3677
    The affidavit is clearly a sham and the College respectfully submits that it should be disregarded
    and stricken, or alternatively, the foregoing statements and references should be stricken.
    have Not Qualified/Incompetent to Testify
    This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because Mr. Rollins is not qualified to testify to the matter contained
    therein. An opinion as to the reasons for surgery or medically necessary procedures would
    require the opinion of a medical expert. Mr. Rollins is not a medical expert and has offered
    nothing more than a conclusory opinion that it was the a}leged injuries he incurred at Texas
    College's campus that necessitated surgery.         Texas College ask that it be disregarded and
    stricken by the Court.
    "My surgeon's letter to my lawyer describing Hearsay
    my injury is attached to my affidavit as Exhibit Not shown to be qualified/competent
    D. I have reviewed this document with my
    lawyer and I am familiar with my surgeon's
    opinion. He provided the letter in connection
    with this case."
    This portion within Section 6 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because the information is hearsay. The letter attached to Rollins'
    affidavit as Exhibit D is incompetent hearsay for which no exception applies. Mr. Rollins' sole
    purpose for including such records is to prove the truth of the matter asserted by Mr. Rollins.
    Therefore, Texas College's objection to this portion of Mr. Rollins' affidavit and the exhibit
    referenced should be sustained, and this portion and the exhibit stricken and disregarded by the
    Court.
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE 13 OF 19
    APPENDIX 76
    Page 3678
    been Lack of Personal Knowledge
    Irrelevant
    Incompetent to testify
    This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because it is irrelevant hearsay. Mr. Rollins has not established that he
    has personal knowledge regarding workers who have been injured or killed because of scissor
    lifts, that he has conducted a survey, or that he is qualified or competent to testify as to such
    matters.   Furthermore, the foregoing statements are irrelevant to this litigation and have no
    probative value. Texas College objects and moves that they be stricken and disregarded.
    "There was another instance at Texas College Lack of Personal Knowledge
    that I am personally familiar with where another Irrelevant
    employee was asked to do work that he was not
    trained to do and got hurt. That employee was
    later fired."
    This portion within Section 7 of Mr. Rollins' affidavit should be stricken and not
    considered by the Court because Mr. Rollins lacks personal knowledge to testify on same. Mr.
    Rollins has not established in any way that he has personal knowledge that an employee was
    asked to do work that he was not trained to do. Instead, he just makes a blanket statement
    without information explaining when the information was obtained, how the information was
    obtained, whether he observed the alleged incident, or any other information that would tend to
    establish that Mr. Rollins had personal knowledge of this occurring.
    Furthermore, Rollins' self-serving testimony that the alleged employee "got hurt"
    because he was instructed to perform work he was not trained to do lacks any demonstration of
    personal knowledge or competent support. Mr. Rollins has not established how he has personal
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                        PAGE 14 OF 19
    APPENDIX 77
    Page 3679
    knowledge that this is the reason for any alleged injuries sustained by the alleged employee.
    Without establishing how Mr. Rollins has personal knowledge as to this information, Mr.
    Rollins' testimony is mere speculation and is inadmissible.
    Still further, Mr. Rollins has not established in any way that he has personal knowledge
    that the particular employee was "fired." Instead, he just makes a conclusoiy statement without
    information stating when the information was obtained, how the information was obtained, or
    any other information that would tend to establish that Mr. Rollins had personal knowledge of
    the reasoning for this alleged employees' departure from employment. It amounts to pure
    speculation and hearsay. Finally, it is irrelevant to this litigation. Texas College objects and
    moves that it be disregarded and stricken.
    V.       Objections to information contained in Plaintiffs' response without evidentiary
    support
    A party must attach evidence that would be admissible in trial in a response to a motion
    for summary judgment to establish any facts contained therein. See United Blood Servs. v.
    Longoria, 
    938 S.W.2d 29
    , 30 (Tex. 1997); see TEX. R. C1v. P. 166a(f). If a party does not
    substantiate the allegations made within its response to a Motion for Summary Judgment with
    admissible summary-judgment proof, the information shall not be considered by the Court. 
    Id. "There was
    no postings at Texas College No evidentiary support
    pertaining to safe lifting techniques" (Page 13)
    Texas College objects to this particular statement included within Plaintiffs' response, as
    there is no competent summary-judgment evidence before the Court to establish this alleged fact.
    Texas College requests that its objection to this portion be sustained and not considered by the
    Court.
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                           PAGE 15 OF 19
    APPENDIX 78
    Page 3680
    Obiectionable Statement in Resnonse                     Obiection212 S.W.3d 699
    , 704 (Tex. App. -Houston [1st Dist.] 2006) rev'd
    on other grounds, 254 S.W.3d (Tex. 2008).                Texas College incorporates by reference
    Defendants' Motion to Strike Burt Thorpe and Defendants' Reply to Plaintiffs' Response to the
    Motion to Strike Burt Thorpe. Texas College re-urges the arguments contained therein and
    requests that the Court sustain Texas College's objection, and disregard and strike the Thorpe
    affidavit.   Furthermore, as set forth in the College's Reply, Thorpe's affidavit contains
    conclusocy statements, portrayed as opinions, which are based on incomplete underlying
    evidence and clear misstatements or misinterpretation of underlying facts.            And based on
    references and cites to hearsay with no proper predicate or foundation established.
    WHEREFORE, PREMISES CONSIDERED, Defendant, Texas College, respectfully
    requests that the foregoing evidence and statements in Plaintiffs' Response be stricken and
    disregarded by the Court.
    Respectfully submitted,
    Yarbrough Wilcox, PLLC
    100 E. Ferguson, Suite 1015
    Tyler, Texas 75702
    903-595-3111 office
    903-595-0191 fax
    Isl Dallas W. Tharpe
    Trey Yarbrough
    Bar No. 22133500
    trcy;ll;yw-lawfim1.com
    Dallas W. Tharpe
    Bar No. 24052036
    da1la5'£iyw-lawfim1.com
    ATTORNEYS FOR TEXAS COLLEGE
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                            PAGE 18 OF 19
    APPENDIX 81
    Page 3683
    CERTIFICATE OF SERVICE
    This is to certify that a true and correct copy of the above motion has been seived on all
    counsel of record in accordance with the Texas Rules of Civil Procedure on February 13, 2015.
    Isl Dallas W. Tharpe
    Dallas W. Tharpe
    DEFE:'iDA:'iT TEXAS COLLEGE'S OBJECTIO:'iS/MOTIO:'i TO STRIKE
    EVIDE:'iCE A'.\ll REFERE:'iCES I:'i PLAI:'iTIFFS' RESPO:'iSE TO TEXAS
    COLLEGE'S MOTIO:'i FOR St:MMARY Jt:DGME:'iT                                         PAGE 19 OF 19
    APPENDIX 82
    Page 3684
    incident. Plaintiffs have produced no evidence that apportions or proves A-1 is responsible for
    any damages or injury to Plaintiffs.
    Plaintiff Carla Rollins Has No Evidence to Support Her Derivative Claims.
    All of Mrs. Rollins claims against A-1 fail as a matter of law, the loss of consortium
    claim in Plaintiffs' petition also fails as a matter of law. In addition, Mrs. Rollins' claims fail
    because she has not produced any competent evidence of damages. The testimony attached from
    Carla Rollins does not establish that A-1 caused any of the alleged damages she is claiming.
    Therefore, Plaintiff Carla Rollins' claims against A-1 should be dismissed.
    v.
    OBJECTIONS TO PLAINTIFFS' SUMMARY JUDGMENT EVIDENCE
    Summary judgment evidence must be admissible under the rule of evidence. 24
    Evidential)' exclusions also apply to summary judgment proceedings as they would at trial. 25
    Much if not most of Plaintiffs summary judgment evidence is unauthenticated, hearsay, or
    otherwise inadmissible, and should be stricken. Facts must be proven in the same manner or
    type of evidence that would be admissible at trial. 26 If a party's summary-judgment proof
    contains evidence that would not be admissible at trial, the appropriate avenue to challenge such
    is through written objections and requesting that the inadmissible summary-judgment proof be
    stricken. 27
    Texas Rule of Civil Procedure 193.6(a) provides that "[a] party who fails to make ... a
    discovery response in a timely manner may not introduce in evidence material or information
    2A United Bloodv. Longoria, 
    938 S.W.2d 29
    , 30 (Tex. 1997); see TRCP 166a(f).
    2
    ' Fort Brown Villas II Condv. Gillenwater, 
    285 S.W.3d 879
    , 882 (Tex. 2009).
    26
    See TEX. R. CIV. P. 166a(c).
    27
    See TEX. R. CIV. P. 166a(f).
    DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                     Page 18
    ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
    A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
    OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE
    APPENDIX 83
    Page 3718
    that was not timely disclosed .... " 28 A-1 objects to the repeated use of evidence not disclosed or
    produced in response to written discovery. As cataloged in A-1 's pending Motion to Enforce
    Order on Written Discovery and for Sanctions and Motion to Strike Burt Thorpe, Plaintiffs'
    pattern of refusing to comply with the Texas Rules and this Court's Order now results in the
    automatic exclusion of this evidence.
    4. Excerpts from the deposition of Mike Frazier
    As an initial matter, A-1 objects to the deposition testimony of Mike Frazier as the
    attached copy d a draft and not a final copy of the deposition. The deponent has not had a chance
    to read and sign the deposition pursuant to the Texas Rules of Civil Procedure. A-1 further
    objects to the following testimony:
    Question at 59: 10 - Form Objection. Plaintiffs' counsel summarizes and misstates what has been
    read from the document.
    Questions beginning at 60:21 - Form Objection. Plaintiffs' counsel improperly misstates what
    testimony from other witnesses has been in this case and then sets up improper hypothetical's
    based on an inaccurate representation of what the previous testimony from other witnesses had
    been. Intentionally misleading and vague.
    Questions beginning at 61:4 - 14 - Form Objection. Plaintiffs' counsel improperly misstates
    what testimony from other witnesses has been in this case and then sets up improper
    hypothetical's based on an inaccurate representation of what the previous testimony from other
    witnesses had been. Intentionally misleading and vague.
    Questions beginning at 62:4- Form Objection. Vague. Misquotes prior testimony to elicit a
    misleading response.
    6.       The JLG Owner's Manual Model 1930-ES (excerpts).
    A-1 first objects to this document because it was not disclosed or produced in written
    discovery pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to
    28
    Tex.R. Civ. P. l 93.6(a).
    DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                     Page 19
    ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
    A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
    OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE
    APPENDIX 84
    Page 3719
    mandatory exclusion.            A-1 further objects to Plaintiffs' attempted use of a purported JLG
    Owner's Manual on the basis that Plaintiffs have failed to establish its authenticity or relevance,
    or lay any proper predicate for the admissibility of same, either through a qualified witness or
    otherwise. The purported manual is inadmissible hearsay and not competent as summary-
    judgment proof. No exception to the hearsay rules apply to the subject manual filed as an
    independent document with the Court. Since Plaintiffs are attempting to offer statements within
    the JLG Owner's Manual to prove the matter asserted, the complete "JLG Owner's Manual"
    itself, and the statements referenced within it, are inadmissible hearsay.
    A-1 's objections to the JLG Owner's Manual should be sustained, any reference to the
    JLG Owner's Manual should be excluded in total, and the JLG Owner's Manual and any
    reference to it should be disregarded by the Court for all purposes.
    7.       Affidavit of Garry Rollins dated February 3rd, 2015 and attached Exhibits.
    An affidavit attached in response to a motion for summary judgment must contain facts
    that would be admissible in evidence at trial. 29 The affidavit is so replete with inadmissible
    hearsay, irrelevant testimony, and sworn statements that fundamentally contradict Rollins' earlier
    sworn deposition testimony (making it a "Sham Affidavit"), A-1 respectfully requests that it be
    stricken in its entirety. In the alternative, A-1 's summary judgment motion sets out in detail the
    repeated questions to Mr. Rollins and his repeated answers that he does not know how he fell. If
    his affidavit is not excluded in its entirety, the statements that directly contradict his prior sworn
    testimony should be excluded.
    29
    TEX. R. CIV. P. ! 66a(f); United Blood SeMJs. v. Longoria, 938 S.w.2d 29, 30 (Tex. 1997).
    DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                                 Page20
    ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
    A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
    OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE
    APPENDIX 85
    Page 3720
    Hearsay statements in summary judgment affidavits are not competent evidence and
    should not be considered by the court. 30 'Hearsay' is 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 evidence "except as provided
    by statute or these rules or by other rules prescribed pursuant to statutory authority." TEX. R.
    EVID. 802. Rollins statements regarding any statements made by A-1 employees is purely
    hearsay and should be excluded as evidence. Further, Garcy Rollins sworn interrogatory answer
    served in January 2015 states:
    INTERROGATORY NO. 18: If You or your attorneys have any knowledge, either
    directly or indirectly, of any statement or admission of any kind made by MPF or
    anyone acting on their behalf regarding the incident, this lawsuit or your injuries
    that might be relevant to this lawsuit, please describe the statement and/or
    admission and identify who made the statement or admission and when it
    occurred.
    ANSWER: At present, none; this is what we are hoping to discover during
    depositions.
    Plaintiffs affidavit contradicts his sworn interrogatory answer and such contradictory
    statements, in addition to being hearsay, regarding any statements made by A-1 employees
    should be excluded.
    Finally, the letter from Plaintiffs surgeon Dr. Barnett attached as an exhibit to the
    affidavit is inadmissible hearsay. Plaintiff is not capable of proving this letter up in any way and
    can certainly not provide a basis for the opinions contained therein. The letter and the opinions
    contained are hearsay without any applicable exception and must be excluded.
    30
    Powell v. Vavro, McDonald& Assocs., 
    136 S.W.3d 762
    , 765 (Tex. App. - Dallas 2004, no pet.).
    DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                            Page21
    ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
    A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
    OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE
    APPENDIX 86
    Page 3721
    9.        Affidavit of Ken Yerrington dated September 23rd, 2014.
    A-1 moves to strike the affidavit of Ken Yerrington as a whole and specifically to the
    statement that "Mr. Rollins did not operate our sky lift jack that day ... " as a conclusory
    statement that fails to provide a factual basis for the conclusion. Further, A-1 moves to strike the
    affidavit of Ken Yerrington based on the clarifying affidavit of Ken Yerrington and his
    description of the circumstances surrounding ther original affidavit and his clarification that he
    was not present at the gym at all times and therefore could not make any statements as to what
    occurred when he was not there.
    10.       Texas College's Answers to Interrogatories.
    Plaintiffs improperly attempt to use Texas College's answers to interrogatories against A-
    l. Interrogatory answers "may be used only against the party answering the interrogatories." 31
    Specifically, a party's answers to interrogatories cannot be used as evidence against a
    codefendant. 32     Accordingly, A-1 moves the Court to strike Texas College's interrogatory
    responses as they are improper and incompetent summary judgment evidence against A-1.
    11.       ANSI A92.6.
    Plaintiffs attach a document purported to be ANSI standards without even attempting to
    authenticate or otherwise show why this document is in any way relevant or admissible evidence.
    A-1 first objects to this document because it was not disclosed or produced in written discovery
    pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to mandatory
    31
    Hanssen v. Our Redeemer Lutheran Church, 
    938 S.W.2d 85
    , 95 (Tex.App.-Dallas 1997, writ denied) (opinion
    on rehearing); Nebgen v. Minnesota Mining & Mfg. Co., 
    898 S.W.2d 363
    , 366 (Tex.App.-San Antonio 1995, writ
    denied).
    32
    Buck v. Blum, 
    130 S.W.3d 285
    , 290 (Tex.App.-Houston [14 Dist.],2004).
    DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                             Page22
    ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
    A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
    OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE
    APPENDIX 87
    Page 3722
    exclusion. Further, this docwnent is hearsay and is not certified, authenticated or otherwise
    competent, admissible summary-judgment evidence of any type. Evidence that is not properly
    authenticated is not competent sununaiy-judgment evidence. See Blanche v. First Nationwide
    A1ortg. Corp., 
    74 S.W.3d 444
    , 451-52 (Tex. App.-Dallas 2002, no pet.).
    12.      Affidavit of Burt Thorpe.
    A-1 objects to the Affidavit of Burt Thorpe in that Thorpe has not been properly
    disclosed as an expert witness. "The affidavit of an expert who is not properly designated may
    not be used as evidence in a sununaiy judgment context. Where the expert's testimony will be
    excluded at trial on the merits, it will be excluded from a summary judgment proceeding." 33 A-1
    incorporates by reference Defendants' Motion to Strike Burt Thorpe and Defendants' Reply to
    Plaintiffs' Response to the Motion to Strike Burt Thorpe. A-1 re-urges the arguments contained
    therein and requests that the Court sustain A-1 's objection, and disregard and strike the Thorpe
    affidavit in total. Furthermore, as set forth in A-1 's, Thorpe's affidavit contains conclusoiy
    statements, portrayed as opinions, which are based on incomplete underlying evidence and clear
    misstatements or misinterpretation of underlying facts. And based on references and cites to
    hearsay with no proper predicate or foundation established.
    A-1 further objects to the opinions and conclusions of Burt Thorpe due to the complete
    failure to disclose in response to disclosures or interrogatories or to produce the following
    documents that for the basis of his opinions:
    d. OSHA Federal Regulations:
    29 CFR 1910.27- Fixed Ladders,
    33
    Chau v. Riddle, 
    212 S.W.3d 699
    , 704 (Tex. App. - Houston [I st Dist.] 2006) rev'd on other grounds, 254 S.W.3d
    (Tex. 2008).
    DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                                  Page23
    ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
    A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
    OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE
    APPENDIX 88
    Page 3723
    29 CFR 1910.67 - Vehicle Mounted Elevating and Rotating Work
    Platfonns
    29 CFR 1926.453- Aerial Lifts. Scaffolds,
    29 CFR 1926.454 - Scaffolds, Training Requirements.
    e. A "Statement of Best Practices of General Training and Familiarization for
    Aerial Worlc Platform Equipment" published by ARA, ANSI et. al.
    g. ANSI A92.6 safety standards for scissor lifts (referred to as "Self Propelled
    Elevated Work Platfonns")
    h. The JLG Owner's Manual for model "1930-ES"
    A-1 objects to all opinions and statements from Burt Thorpe for the reason that these documents
    were not disclosed or produced in written discovery pursuant to Texas Rule of Civil Procedure
    193 .6(a) and is therefore subject to mandatory exclusion.        Burt Thorpe has no personal
    knowledge so his affidavit is otherwise conclusory and is not competent summary judgment
    evidence.
    A-1 specifically objects to Paragraph Number 5 for the reasons it is filled with opinions
    based on the undisclosed documents referenced above and is also replete with legal conclusions.
    A-1 also objects to the "summary" of witness testimony as it impermissible hearsay along with
    being misleading. A-1 specifically objects to the statements regarding the owner's manual as
    Burt Thorpe has not personal knowledge of the events and he specifically misleads the Court
    with his conclusion that Brackens testified that there definitely was no manual on board the lift.
    For the many reasons above, Burt Thorpe's affidavit should be excluded in its entirety. At a
    minimum, the Court should exclude paragraph number 5 from evidence in this matter.
    14.     Goodwin v. Bluffton College, 2004-0hio-2223, CASE NUMBER 10337, 04-
    LW-1747 (3rd).
    A-1 objects to and moves to exclude this legal opinion from Ohio as wholly irrelevant
    and is not competent summary judgment evidence of any type.
    DEFE:\'DA:\'T MPF l:\'VESTME:\'TS, LLC D/B/A A-1 RE:\'T                                    Page24
    ALL'S REPLY TO PLAl:\'TIFFS' RESPO:\'SE TO TRADITIO:\'AL
    A:\'D :\'0-EVIDE:\'CE MOTIO:\' FOR St..:MMARY Jt..:DGME:\'T A:\'D
    OBJECTIO:\'S TO PLAl:\'TIFFS' St..:MMARY Jt..:DGME:\'T EVIDE:\'CE
    APPENDIX 89
    Page 3724
    15.      "Statement of Best Practices of General Training and Familiarization for
    Aerial Work Platform Equipment", February 2010
    A-1 first objects to this document because it was not disclosed or produced in written
    discovery pursuant to Texas Rule of Civil Procedure 193 .6(a) and is therefore subject to
    mandatory exclusion. Further, this document is irrelevant hearsay and is not certified,
    authenticated or otherwise competent, admissible summary-judgment evidence of any type. No
    attempt was made to identify this document or submit this document in admissible form.
    Evidence that is not properly authenticated is not competent summary-judgment evidence. 34
    A-1 's objections to this document should be sustained, any reference to it should excluded in
    total and any reference to it should be disregarded by the Court for all purposes.
    VIII.
    PRAYER
    Plaintiffs have failed to allege any claim or cause of action for which damages are
    recoverable against A-1 as a matter of law. Finally, Plaintiffs have no evidence to support one or
    more of the elements of each of their claims against A-1. For the foregoing reasons, Defendant
    A-1 requests that this Court sustain all objections to Plaintiffs' improper summary judgment
    evidence, dismiss all claims against A-1 and Defendant also prays for such other and further
    relief, at law or in equity, to which it may be justly entitled.
    34
    See Blanche v. First Nationwide Mortg. Corp., 
    74 S.W.3d 444
    , 451-52 (Tex. App.-Dallas 2002, no pet.).
    DEFE:\"DA:\"T MPF l:\"VESTME:\"TS, LLC D/B/A A-1 RE:\"T                                                      Page 2!5
    ALL'S REPLY TO PLAl:\"TIFFS' RESPO:\"SE TO TRADITIO:\"AL
    A:\"D :\"0-EVIDE:\"CE MOTIO:\" FOR St..:MMARY Jt..:DGME:\"T A:\"D
    OBJECTIO:\"S TO PLAl:\"TIFFS' St..:MMARY Jt..:DGME:\"T EVIDE:\"CE
    APPENDIX 90
    Page 3725
    Respectfully submitted,
    MARTI'.'", DISIERE,JEFFERSO:\" & WISDOM, L.L.P.
    By: Isl Ryan K. Geddie
    Todd M. Lonergan
    State Bar No. 12513700
    Marie J. Dyer
    State Bar No. 06317500
    Ryan K. Geddie
    State Bar No. 24055541
    Tollway Plaza One
    16000 N. Dallas Parkway, Suite 800
    Dallas, Texas 75248
    Telephone:      (214) 420-5500
    Facsimile:      (214) 420-5501
    lonergan1t.mdjwlaw.com
    dyer1t.mdjwlaw.com
    geddie:a:mdjwlaw .com
    ATTORNEYS FOR DEFENDANT MPF
    INVESTMENTS, LLC d/b/a "A-1 RENT ALL"
    CERTIFICATE OF SERVICE
    This is to certify that a true and correct copy of the above pleading has been served via e-
    service pursuant to Texas Rules of Civil Procedure 21 (a) on this the 13th day of February 2015
    to:
    Ernesto D. Sigmon
    Law Offices of Ernesto D. Sigmon
    416 West Saulnier Street
    Houston, Texas 77019
    Trey Yarbrough
    Yarbrough Wilcox Gunter, PLLC
    100 East Ferguson, Suite 1015
    Tyler, Texas 75702
    ls/Ryan K. Geddie
    Ryan K. Geddie
    DEFE:\'DA:\'T MPF l:\'VESTME:\'TS, LLC D/B/A A-I RE:\'T                                      Page26
    ALL'S REPLY TO PLAl:\'TIFFS' RESPO:\'SE TO TRADITIO:\'AL
    A:\'D :\'0-EVIDE:\'CE MOTIO:\' FOR St..:MMARY Jt..:DGME:\'T A:\'D
    OBJECTIO:\'S TO PLAl:\'TIFFS' St..:MMARY Jt..:DGME:\'T EVIDE:\'CE
    APPENDIX 91
    Page 3726
    Garry L. Rollins
    Page I
    1                                                   CAUSE NO. 13-3353-A
    2
    L. ROLLIKS and                                          IN          DISTRICT COURT
    3                     J, ROLLIKS
    4                            Plaintiffs
    5        vs.                                                                  SMITH COUNTY, TEXAS
    6        TEXAS COLLEGE,
    METHOJIST
    7                MPF INVESTMENTS,
    LLC, d/b/a "A-1 RENT ALL"
    8
    Defendar.ts                                      7th JUDIC:AL DISTRICT
    9
    10
    11
    DEPOSITION CF
    12
    EXHIBIT                                             L.
    13
    14
    t_A_                                               C'UL Y 7 , 2()14
    15
    16                ORAL AKD VIDEOTAPED DEPOSITION OF GARRY L. ROLL:NS,
    17          produced as a witness            :nstance of the
    18          and duly            was taken in the above-styled and
    :. 9        numbered cause on July 7,                8:44 a.rn. to 3:31
    20          p.rn., before               Carter, CSR in and      the
    21          of Texas, reported by                        at tne law
    22          offices of            wa:ker, PC, 121 N. Spring Avenue,
    23          Tyler, Texas,              to the Texas Rules of Civil
    24          Procedure and tr.e provisions stated on        record or
    25          attacr.ed :'1ereto,
    DepoTexas, Inc. I Sunbelt Reporting & Litigation Services
    Electronically signed by Jan Newman Carter (601-015-560-8388)                                           APPENDIX 92
    6f66Bfac-70a2-4e75-a815-fde2a552304d
    Page 3727
    Ga!T)' L. Rollins
    Page 202
    1        is
    2                    A.       No,                  did not.
    3                    Q.                       And I'm                           to -- we've been referring
    4               it as                                14th,         I'm just going to refer to that
    5        as the                                 accident;              is that fair?
    6                                        MR. SIGMO:J:                  Object to the form.
    7                    Q.        (BY MR. GEDDIE)                       I ' l l say September 14th
    8        incident then.                       If I say September                                incident, will                    I
    9        you know                         I'm referring to?
    10                    A.        Yes.
    11                     Q.       All right.                    Mr. Rollins,            what is your currer.t
    :2                          address?
    13                     A.                       my current e-mail address?
    14                     Q.       Yes,        sir.
    
    15 A. 16
                        Q.       And is that the same one that you were using                                                            ·
    17                                and                          of 2013?
    18                    A.        : might have used my wife's,                                I'm net a hundred
    19          percent sure.
    20                      Q.       Okay.           And I ' l l really just get to the pcint,
    21          did you e-mail any of your friends or co-workers
    22                               about                    accident or your injury?
    23                      A.              answer                  that is I can't e-mail anybody
    24                               because -                            read.
    25                      Q.       Okay.
    DepoTexas, Inc./ Sunbelt Reporting & Litigation Services
    Electronic1lly signed by Jan Newman Ca..ier (601-015-560-8388)                                          APPENDIX 93
    61668fac-70e2-4e75-a815-fde2a552304d
    Page 3728
    Garry L. Rollins
    Page 203
    1                   A.       And in order to e-mail somebody,                                      you got to be
    2        ab:e to read to spell.                                So, my answer to that is no.
    Q.       Okay.                                       But you do have an e-mail
    4        address that you just gave me.
    5                   A.       Yes.
    6                   Q.       And does typically your wife help you
    7        back                forth --
    8                   A.       My wife never                                       anybody.
    9                   Q.       Okay.           So,      I assume by virtue of what you jus:
    lJ         testified to,                  would it be true to say that you're
    11         aole to read any operator manuals for any of the
    12         equipment that you use in your job.
    13                    A.       No,       I can't read them.
    14                    Q.       So,             your roughly 20 years of                                                    in
    15          the                                 field,          I assume you've used lots of
    16          different                           of power                                    and                like
    17                                          MR.      s=SMON:            Objec: :o the form.
    :..8                   A.       I've never used any heavy equipment
    19          maintenance that I've done.
    20                     Q.        (3Y MR.                              Have you used handheld
    21          equipme::1t?
    22                     A.       Drills,            saws,        yes.
    23                     Q.           . d ers,
    G rin                  t hat      sort           .::: th.
    .      ?
    24                     A.       Yes.
    25                     Q.       And a:l :hose times you used that,                                         you were
    Depo rexas, Inc. I Sunbelt Reporting & Litigation Services
    Electronically signed by Jan Newman Carter (601-015-560-8388)                                            APPENDIX 94
    6f668fac-70a2-4e75-a815-fde2a552304d
    Page 3729
    Garry L. Rollins
    Page 204
    1                   able to                  any of the                               manuals; is that
    2           true?
    
    3 A. 4
                     Q.     In               instar.ces,                    you rely on                  people
    5                   you                 for to train you on how to use those
    6          tools?
    7                   A.    Yes,       I did.
    8                   Q.    All rigtt.              Mr. Rollins, your residence is in
    9           DeSoto, Texas; is                         true?
    10                    A.    Yes, sir.
    11                    Q.     Is             Dallas County?
    12                    A.    Yes.
    13                    Q.    Okay.         Sir.ce October of 2013, have you made any
    14            trips outside of Dallas County other                                            to be tere
    15            today?
    16                    A.    Yes.
    17                    Q.    Ckay.         And                  have you gone?
    18                    A.     San Antonio.
    19                    Q.    Approximately wr.er. did you go to San Antonio?
    20                    A.     Cid you say partially?
    21                    Q.    A9proximately when did you go?
    22                    A.    Oh,       I don't                    maybe two or ttree months
    23            ago,           not just accurate.
    24                    Q.    And what were you doing in San Antonio?
    25                    A.     Seeing a
    DepoTexas, Inc. I Sunbelt Reporting & Litigation Services
    Electronically     by    Newman Carter                                                           APPENDIX        95
    70a2-4e75-a8' 5-fde2a552304d
    Page 3730
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    [5] employer's specific instruction for employee to clean up
    oily liquid spill in restrooms was not basis for creating third
    exception to general “no duty” rule; and
    [6] employee did not have to show that employer engaged in
    contemporaneously negligent activity in order to show that
    employer breached duty to provide employee with necessary
    instrumentalities to perform job.
    Certified question answered.
    Synopsis
    Background: Employee filed suit against nonsubscribing
    employer for injuries sustained in slip and fall while cleaning
    West Headnotes (30)
    oily liquid spill in employer's restrooms, based on claims for
    negligence, gross negligence, and premises liability. Upon
    removal, the United States District Court for the Northern         [1]    Labor and Employment
    District of Texas, 
    2012 WL 2795674
    , entered summary                           Dangers or defects known to employee
    judgment for employer, and employee appealed. The Court of                Labor and Employment
    Appeals, 
    731 F.3d 418
    , affirmed grant of summary judgment                     Obvious dangers
    on negligence claims, but reversed summary judgment on
    Neither the obviousness of a danger nor
    premises liability claims, and certified question seeking
    an employee's awareness of it eliminates an
    clarification of Texas premises liability law.
    employer's duty to provide a safe workplace; that
    duty always exists.
    Holdings: The Supreme Court, Boyd, J., held that:                         Cases that cite this headnote
    [1] generally, an employer does not have a duty to warn            [2]    Negligence
    employees of dangers that are open and obvious or already                     Who are invitees
    known to the employee, overruling Sears, Roebuck & Co. v.                 An “invitee”, for the purposes of establishing a
    Robinson, 
    154 Tex. 336
    , 
    280 S.W.2d 238
    ;                                   landowner's duty of care, is one who enters the
    property of another with the owner's knowledge
    [2] “criminal activity” exception to general “no duty” rule               and for the mutual benefit of both.
    applied if risk resulted from third party's criminal conduct
    for which employer should have anticipated that harm would                Cases that cite this headnote
    occur, despite employee's knowledge of risks;
    [3]    Labor and Employment
    [3] exception to general “no duty” rule applied if it was
    Nature and Scope of Duty Owed by
    necessary for employee to use dangerous premises and
    Employer
    employer should have anticipated that employee was unable
    to take measures to avoid risk, despite awareness of risk;                While an employer's liability for an employee's
    injury may differ from that of other landowners
    [4] in event either exception to “no duty” rule applied,                  due to the statutory waiver of its defenses, its
    Texas Workers' Compensation Act prevented nonsubscribing                  premises-liability duty is the same as that owed
    employer from relying on employee's awareness of risk as                  by landowners to invitees generally. Tex. Labor
    defense;                                                                  Code Ann. § 406.033(a).
    Cases that cite this headnote
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  APPENDIX 96               1
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    [4]    Negligence                                                 2 Cases that cite this headnote
    Care required in general
    A landowner has a duty to exercise reasonable       [9]    Negligence
    care to make the premises safe for invitees,                   Reasonable or ordinary care in general
    and the landowner can satisfy this duty by
    In the premises liability context, a landowner has
    eliminating the dangerous condition or by
    no duty to take safety measures beyond those that
    mitigating the condition so that it is no longer
    an ordinary, reasonable landowner would take.
    unreasonably dangerous.
    Cases that cite this headnote
    Cases that cite this headnote
    [10]   Labor and Employment
    [5]    Labor and Employment
    Dangers from extraneous sources
    Dangers or defects known to employee
    “Criminal activity” exception to general rule that
    Labor and Employment
    employer owed no duty to warn employee of
    Obvious dangers
    unreasonably dangerous condition of property
    Generally, an employer does not have a duty                that was open and obvious applied, so as to
    to warn employees of dangers that are open                 impose liability on employer for employee's
    and obvious or already known to the employee;              injury, if risk resulted from third party's
    overruling Sears, Roebuck & Co. v. Robinson,               criminal conduct for which employer should
    
    154 Tex. 336
    , 
    280 S.W.2d 238
    .                              have anticipated that harm would occur, despite
    employee's knowledge of risks.
    Cases that cite this headnote
    Cases that cite this headnote
    [6]    Negligence
    Care required in general                        [11]   Negligence
    Ordinarily, the landowner need not both                        Duty to warn
    make reasonably safe and warn invitees about               Negligence
    an unreasonably dangerous condition of the                     Protection against acts of third persons
    property, and the landowner can satisfy its duty           generally
    to the invitee by providing an adequate warning
    An exception to the general rule that a
    even if the unreasonably dangerous condition
    landowner has no duty to warn an invitee
    remains.
    of unreasonably dangerous conditions that are
    1 Cases that cite this headnote                            obvious or known to the invitee, known as the
    “criminal activity” exception, applies in cases
    involving dangers resulting from a third party's
    [7]    Negligence                                                 criminal conduct in which the landowner should
    Care required in general                               have anticipated that the harm would occur,
    A landowner's duty to invitees is not absolute.            despite the invitee's knowledge of the risks;
    in such cases, the invitee's appreciation of the
    Cases that cite this headnote                              danger remains relevant to the landowner's
    proportionate-responsibility defenses, but it does
    [8]    Negligence                                                 not relieve the landowner of its duty to take
    Reasonable or ordinary care in general                 reasonable steps to make the premises safe.
    A landowner's premises-liability duties, like its
    Cases that cite this headnote
    negligence duties, are limited to a duty to
    exercise ordinary, reasonable care.
    [12]   Negligence
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.           APPENDIX 97                 2
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    Duty to warn                                             invitee of an unreasonably dangerous condition
    Negligence                                                    that is open and obvious applies, the invitee's
    Care required in general                                  awareness of the risk does not relieve the
    landowner's duty to make the premises safe, but
    An exception to the general rule that a landowner
    it remains relevant to the issue of proportionate
    owes an invitee no duty to warn of an
    responsibility, unless that defense is legally
    unreasonable dangerous condition that is open
    unavailable. Restatement (Second) of Torts §
    and obvious, known as the “necessary use”
    361.
    exception, arises when the facts demonstrate
    that (1) it was necessary that the invitee use                Cases that cite this headnote
    the unreasonably dangerous premises, and (2)
    the landowner should have anticipated that the
    invitee was unable to avoid the unreasonable           [16]   Negligence
    risks despite the invitee's awareness of them.                    Duty as question of fact or law generally
    Restatement (Second) of Torts § 361.                          Whether a duty exists is a question of law for the
    court, and if no duty exists, a jury cannot impose
    Cases that cite this headnote                                 a duty anyway.
    Cases that cite this headnote
    [13]   Negligence
    Buildings and structures
    One's conduct after he is possessed of full            [17]   Negligence
    knowledge of a dangerous condition, under                         As Grounds for Apportionment;
    the circumstances, may be justified or deemed                 Comparative Negligence Doctrine
    negligent depending upon such things as the                   Negligence
    plaintiff's status, the nature of the structure, the              Effect of comparative negligence
    urgency or lack of it for attempting to reach                 Negligence
    a destination, the availability of an alternative,                 Effect of others' fault; comparative
    one's familiarity or lack of it, the degree and               negligence
    seriousness of the danger, the availability of aid
    Negligence
    from others, the kind and extent of a warning, and
    Assumption of risk
    the precautions taken under the circumstances by
    Although the common law affirmative defenses
    the plaintiff.
    of assumption of the risk and contributory
    Cases that cite this headnote                                 negligence no longer exist under Texas law,
    the underlying concepts remain relevant under
    Texas's proportionate-responsibility statute; in
    [14]   Negligence
    other words, although these are no longer
    Open and obvious dangers
    affirmative defenses that act as an absolute bar
    Not every open and obvious condition of danger                to recovery, they remain defensive issues on
    on the land precludes recovery.                               which defendants, not plaintiffs, bear the burden
    of proof. Tex. Civ. Prac. & Rem. Code Ann. §
    Cases that cite this headnote
    33.001.
    [15]   Negligence                                                    Cases that cite this headnote
    Duty to warn
    Negligence                                             [18]   Labor and Employment
    Care required in general                                      Dangers or defects known to employee
    When the necessary-use exception to the general               Labor and Employment
    rule that a landowner owes no duty to warn an                     Obvious dangers
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.             APPENDIX 98                 3
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    Workers' Compensation                                        Tex. Labor Code Ann. § 406.033(a); Tex. Civ.
    Defenses; Abrogation or Modification of                   Prac. & Rem. Code Ann. § 33.001.
    Common-Law Defenses
    Cases that cite this headnote
    An exception to the general rule that an employer
    owes no duty to warn or train employees with
    respect to dangers that are commonly known            [20]   Workers' Compensation
    or already appreciated by the employee exists,                  Defenses; Abrogation or Modification of
    and a non-subscribing employer owes such a                   Common-Law Defenses
    duty, despite the obviousness or employee's                  Workers' Compensation
    appreciation of a danger, because, despite the                    Reduction of damages for contributory
    awareness of the danger, it is necessary that                negligence; comparative negligence
    the employee use the dangerous premises and
    The Texas Workers' Compensation Act's waiver
    the employer should anticipate that the employee
    of an employer's defenses to liability under
    is unable to take measures to avoid the risk;
    the proportionate responsibility statute prohibits
    in such cases, the employer cannot rely on the
    a nonsubscribing employer from relying on
    fact that the risk was obvious and known to the
    an employee's assumption of the risk or
    employee to argue that the employee bears some
    contributory negligence. Tex. Labor Code Ann.
    portion of the responsibility for his own injuries,
    § 406.033(a)(1), (2); Tex. Civ. Prac. & Rem.
    because the Texas Workers' Compensation Act
    Code Ann. § 33.001.
    waives those defenses. Tex. Labor Code Ann.
    § 406.033(a); Restatement (Second) of Torts §                Cases that cite this headnote
    361.
    Cases that cite this headnote                         [21]   Workers' Compensation
    Defenses; Abrogation or Modification of
    Common-Law Defenses
    [19]   Labor and Employment
    In cases in which the criminal-activity or
    Dangers or defects known to employee
    necessary-use exceptions to the general rule that
    Workers' Compensation
    an employer owes no duty to warn or train
    Defenses; Abrogation or Modification of
    employees with respect to dangers that are
    Common-Law Defenses
    commonly known or already appreciated by the
    Workers' Compensation                                        employee apply, and thus, the employer has a
    Reduction of damages for contributory                   duty to the employee despite the employee's
    negligence; comparative negligence                           awareness of the risk, the Texas Workers'
    Although an employee's awareness of an                       Compensation Act will prevent the employer
    unreasonable risk may be relevant to the defenses            from relying on the employee's awareness of the
    of contributory negligence and the assumption                risk as a defense to the employee's claims. Tex.
    of risk under the proportionate responsibility               Labor Code Ann. § 406.033(a)(1), (2); Tex. Civ.
    statute, the general rule that an employer owes              Prac. & Rem. Code Ann. § 33.001; Restatement
    no duty to warn or train employees with respect              (Second) of Torts § 361.
    to dangers that are commonly known or already
    appreciated by the employee may permit an                    Cases that cite this headnote
    employer to avoid liability despite the waiver
    of those defenses under the Texas Workers'            [22]   Labor and Employment
    Compensation Act; however, it does so not                        Dangers or defects known to employee
    by undermining the Legislature's prerogative to              Labor and Employment
    determine when defenses may or may not apply,                    Obvious dangers
    but by fulfilling the court's role to determine
    Nonsubscribing employer's specific instruction
    when a party owes a legal duty to begin with.
    for employee to clean up oily liquid spill
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.            APPENDIX 99                 4
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    in restrooms of employer's store was not
    basis for creating exception to general rule                 2 Cases that cite this headnote
    that employer owed no duty to protect or
    warn employee against unreasonably dangerous          [26]   Labor and Employment
    premises condition that was open and obvious or                  Existence of Duty on Part of Employer
    otherwise known to employee.
    Labor and Employment
    Cases that cite this headnote                                    Nature and scope of duty owed by employer
    When the landowner is also an employer and
    the invitee is also its employee, this relationship
    [23]   Labor and Employment
    may give rise to additional duties, such as a
    Working Conditions and Methods of
    duty to provide necessary equipment, training, or
    Performing Work
    supervision.
    When an employee's injury results from
    performing the same character of work that                   2 Cases that cite this headnote
    employees in that position have always done, an
    employer is not liable if there is no evidence that
    [27]   Negligence
    the work is unusually precarious.
    Nature
    Cases that cite this headnote                                Negligence
    Concurrent causes
    [24]   Labor and Employment                                         When an injury arises from a premises condition,
    Kind of Equipment                                        it is often the case that any resulting claim sounds
    exclusively in premises liability, but that is not
    Employee      did     not   have     to    show
    necessarily the case, because an injury can have
    that nonsubscribing employer engaged in
    more than one proximate cause.
    contemporaneously negligent activity in order to
    show that employer breached duty to provide                  Cases that cite this headnote
    employee with necessary instrumentalities to
    perform job of cleaning up oily liquid spill in
    [28]   Labor and Employment
    restrooms of employer's store, in action against
    Kind of Equipment
    employer for injuries sustained in slip-and-fall
    while cleaning spill.                                        Contemporaneous negligent activity of an
    employer is not an element of an employee's
    Cases that cite this headnote                                claim based on the employer's failure to
    provide the employee with the necessary
    [25]   Negligence                                                   instrumentalities to perform his job; to the
    Nature                                                   contrary, an instrumentalities claim may be
    founded on nonfeasance or misfeasance, neither
    Negligence
    of which is particularly likely to occur
    Care required in general
    contemporaneously with a resulting injury to the
    In a typical premises-liability case, the                    employee.
    landowner owes the invitee two duties: a duty to
    keep the premises reasonably safe and a duty not             1 Cases that cite this headnote
    to injure the invitee through contemporaneous
    negligent activity; thus, when a claim does not
    [29]   Labor and Employment
    result from contemporaneous activity, the invitee
    Kind of Equipment
    has no negligent-activity claim, and his claim
    Because contemporaneous negligent activity by
    sounds exclusively in premises-liability.
    the employer is not necessary to an injured
    employee's claim that the employer failed to
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.           APPENDIX 100                   5
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    provide the employee with the necessary and safe
    instrumentalities to perform the job, the absence     Opinion
    of contemporaneous activity does not necessarily
    Justice Boyd delivered the opinion of the Court, in which
    bar an instrumentalities claim.
    Justice Johnson, Justice Guzman, Justice Lehrmann, and
    3 Cases that cite this headnote                       Justice Devine joined, and in which Chief Justice Hecht,
    Justice Green, Justice Willett, and Justice Brown joined
    except as to Part IV.
    [30]   Labor and Employment
    Nature and scope of duty owed by employer         Texas employers have a duty to exercise reasonable care
    Labor and Employment                                  to provide their employees with a safe place to work. Like
    Kind of Equipment                                 all others who own or operate land, employers generally
    may fulfill their premises-liability duties to invitees either
    Only an employer that has control over the
    by eliminating any unreasonably dangerous condition or by
    premises where the employee is injured has
    adequately warning of the risks. In this case, the employer,
    a premises-liability duty to the employee,
    which had opted out of the Texas workers' compensation
    but the duty to provide necessary and safe
    system, sought to eliminate the danger, but the employee
    instrumentalities to perform the job applies to
    who was responsible for the task was himself injured while
    employers generally.
    doing so. The employer could not have eliminated the danger
    2 Cases that cite this headnote                       without assigning the task to an employee, and the employee
    concedes that he was fully aware of the risks. Addressing a
    certified question from the United States Court of Appeals
    for the Fifth Circuit, 1 we clarify that, under Texas law,
    *197 ON CERTIFIED QUESTION FROM THE UNITED                   (1) subject to two limited exceptions, an employer generally
    STATES COURT OF APPEALS FOR THE FIFTH                         does not have a duty to warn or protect its employees
    CIRCUIT.                                                      from unreasonably dangerous premises conditions that are
    open and obvious or known to the employee; and (2) under
    Attorneys and Law Firms                                       this general rule, the Texas Workers' Compensation Act's
    (TWCA) waiver of a nonsubscribing employer's common law
    Matthew Joseph Kita, Attorney at Law, Dallas, for Appellant
    defenses does not eliminate an employee's burden of proving
    Randy Austin.
    that the employer owed him a duty as an element of a premises
    Donna C. Peavler, Bryan Kyle Briscoe, The Peavler Group,      liability claim. We also conclude that contemporaneous
    P.C., Grapevine, Mike A. Hatchell, Locke Lord LLP, Austin,    negligent activity by the employer is not necessary to an
    Dale Wainwright, Bracewell & Giuliani, LLP, Austin,           employee's instrumentalities claim.
    Charles R. 'Skip' Watson Jr., Locke Lord LLP, Austin, for
    Appellee Kroger Texas, L.P.
    I.
    Deborah J. Race, Ireland Carroll & Kelley, P.C., Tyler, for
    Amicus Curiae Brookshire Grocery Co., Daryl Flood, Inc.
    and Quiktrip Corporation.                                                             Background
    *198 Brian A. Sheguit, The Bassett Firm, Dallas, for          Randy Austin fell while mopping a restroom floor at the
    Amicus Curiae Mission Petroleum Carriers, Inc.                Kroger store where he worked in Mesquite, Texas. An
    oily liquid had leaked through the store's ventilation ducts
    Harold McCall Jr., San Antonio, Javier Espinoza, The          after another Kroger employee power-washed the store's
    Espinoza Law Firm, PLLC, San Antonio, for Amicus Curiae       condenser units, creating spills in both the men's and women's
    San Antonio Trial Lawyers Association.                        restrooms. Consistent with Austin's duties as a self-described
    “floor clean-up person,” Austin's supervisor directed him
    Peter M. Kelly, Kelly, Durham & Pittard, L.L.P., Houston,
    to clean the spills. Kroger's safety handbook recommends
    for Amicus Curiae Texas Trial Lawyers Association.
    that employees clean spills using a “Spill Magic” system
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 101            6
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    that involves a powdery absorbent product, a broom, and                            Put differently, does the employee's
    a dustpan. According to the handbook, using this system                            awareness of the defect eliminate the
    reduces the likelihood of a slip-and-fall by 25%. Contrary to                      employer's duty to maintain a safe
    the handbook's instruction to store managers, however, the                         workplace?
    system was not available at the store that day. Austin thus
    attempted to clean the liquid with a mop. Austin successfully        
    Id. at 204.
    cleaned the women's room and then moved to the men's room,
    where the brownish liquid covered about 80% of the floor.
    Recognizing the danger that the slippery liquid presented,                                          II.
    he placed “wet floor” signs around the area and carefully
    took “baby steps” as he moved throughout the spill. *199
    After successfully cleaning 30% to 40% of the spill, Austin                            The Parties' Arguments
    slipped in the remaining liquid and fell, fracturing his femur       The parties' arguments in this case reflect the significance
    and dislocating his hip. As a result, he spent nine months in        of characterizing the question as involving Kroger's “duty”
    the hospital and underwent six surgeries, leaving his left leg       to its employees. Outside of the employment context, a
    two inches shorter than his right.
    landowner 7 sued for premises *200 liability may rely on an
    invitee's awareness of the dangerous condition as evidence of
    Austin's employer, Kroger Texas L.P., had elected not
    the invitee's own negligence and proportionate responsibility,
    to subscribe to the Texas workers' compensation system. 2            as a defense to the invitee's claims. See TEX. CIV. PRAC. &
    Austin sued Kroger in state court, asserting claims for              REM. CODEE §§ 33.001–.017 (proportionate responsibility
    negligence, gross negligence, and premises liability. In             statute). And an employer that elects to subscribe to the
    support of his negligence claim, Austin alleged that Kroger          Texas workers' compensation system will not face the kinds
    had engaged in negligent activities 3 and had failed to              of claims that Austin has asserted in this case, because
    provide a “necessary instrumentality”—specifically, the Spill        the TWCA provides the employee's exclusive remedies. See
    Magic system. 4 Kroger removed the case to federal district          TEX. LAB. CODE § 406.033(a); In re Crawford & Co.,
    court, which granted Kroger's motion for summary judgment            
    458 S.W.3d 920
    , 923–26 (Tex.2015); Tex. Mut. Ins. Co. v.
    on all of Austin's claims. The Fifth Circuit Court of                Ruttiger, 
    381 S.W.3d 430
    (Tex.2012). But an employer that
    opts out of the workers' compensation system, as Kroger
    Appeals affirmed as to Austin's negligent activity 5 and
    has done here, is prohibited from asserting the employee's
    gross negligence 6 claims, but reversed and remanded the
    negligence or assumption of the risk as a defense. TEX. LAB.
    necessary-instrumentalities claim because the district court
    CODE § 406.033(a) (providing that, in an action against
    had “failed to consider whether ... [that theory] is sufficient to
    a nonsubscribing employer, “it is not a defense that: (1)
    support a stand-alone ordinary negligence claim.” 746 F.3d at
    the employee was guilty of contributory negligence; (2) the
    197. As to Austin's premises-liability claim, the Fifth Circuit
    employee assumed the risk of injury or death; or (3) the injury
    found that the “nature and scope” of an employer's duty to
    or death was caused by the negligence of a fellow employee”).
    provide its employees with a safe workplace is “arguably
    If Austin's awareness and assumption of the risks are relevant
    unclear” under Texas law “when an employee is aware of
    here, they can be relevant only to the question of whether
    the hazard or risk at issue.” 
    Id. at 199.
    Concluding that “[i]t
    Kroger owed Austin a duty at all. If Kroger owed Austin
    is best to leave the resolution of these matters to the good
    a duty, its breach of that duty would result in liability for all
    judgment of the highest state court,” the Fifth Circuit certified
    of Austin's damages, regardless of Austin's awareness of the
    the following question:
    risks or any negligence on Austin's part.
    Pursuant to Texas law, including §
    406.033(a)(1)–(3) of the Texas Labor                    Kroger argues that this Court's recent “trilogy” of employer-
    Code, can an employee recover against                   employee tort cases confirms that an employer has no duty
    a non-subscribing employer for an                       to warn or protect employees against “hazards that are
    injury caused by a premises defect of                   commonly known or already appreciated by the employee.”
    which he was fully aware but that his                   See Brookshire Grocery Co. v. Goss, 
    262 S.W.3d 793
    , 794
    job duties required him to remedy?                      (Tex.2008) (holding employer owed no duty to employee
    injured while stepping over cart in store's cooler); Jack in
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                       APPENDIX 102             7
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    the Box, Inc. v. Skiles, 
    221 S.W.3d 566
    , 568–69 (Tex.2007)
    (holding employer owed no duty to employee injured while
    Defining the Premises–Liability Duty
    climbing over broken lift gate to unload truck); Kroger Co. v.
    Elwood, 
    197 S.W.3d 793
    , 795 (Tex.2006) (holding employer            [1] We begin by noting that the Fifth Circuit's alternative
    owed no duty to employee injured when he placed his hand           iteration of its certified question asks, “[D]oes the employee's
    in car doorjamb while loading customer's groceries into car in     awareness of the defect eliminate[s] the employer's duty to
    sloped parking lot). Because the risk of slipping and falling on   maintain a safe workplace?” The answer to that question
    a wet floor is commonly known and Austin admitted that he          is “no.” As Kroger concedes, neither the obviousness of
    was aware of the wet floor and appreciated the risk, Kroger        a danger nor an employee's awareness of it “eliminates”
    asserts that it had no duty to protect or warn Austin against      an employer's duty to “provide a safe workplace.” That
    that risk. Kroger further argues that this Court's opinions        duty always exists, but the question here is whether that
    in Elwood, Skiles, and Goss demonstrate that, although the         duty includes a more specific duty to warn or protect
    TWCA waives a nonsubscribing employer's defenses, it does          employees against obvious or known hazards. We therefore
    not relieve the employee of the burden of proving that the         begin by addressing the specific duties that comprise an
    employer owed a duty.                                              employer's duty to provide a safe workplace in the context
    of premises-liability claims. We conclude that, with two
    Austin contends that Kroger is relying on the old “no-             notable exceptions, an employer's premises-liability duty to
    duty rule,” which this Court abolished in the employment-          its employee includes only the duty to protect or warn the
    law context sixty years ago, see Sears, Roebuck & Co. v.           employee against concealed hazards of which the employer
    Robinson, 
    154 Tex. 336
    , 
    280 S.W.2d 238
    (1955), and in all          is aware, or reasonably should have been aware, but the
    landowner-invitee cases nearly forty years ago, see Parker         employee is not. We then discuss how these principles operate
    v. Highland Park, Inc., 
    565 S.W.2d 512
    (Tex.1978). Under           in light of the TWCA's waiver of defenses and our abolition
    Robinson and Parker, Austin contends, his awareness of the         of the no-duty rule in Robinson and Parker.
    dangerous condition does not affect Kroger's legal duty.
    Instead, his awareness can be relevant only to whether he
    was negligent and thus to his proportionate responsibility,        A. The Duty to Warn
    which the TWCA prohibits Kroger from raising as a defense.         We endeavor here to answer three questions: (1) whether
    Thus, according to Austin, Kroger cannot rely on Austin's          an employer's premises liability to employees differs from
    awareness of the danger at all.                                    other landowners' premises liability to invitees; (2) whether a
    landowner's duty to invitees is a duty to “make safe,” or a duty
    *201 Reviewing the parties' arguments, the Fifth Circuit          to “warn,” or a duty to “make safe or warn”; and (3) whether
    concluded that the cases on which the parties rely represent       an invitee's knowledge of a dangerous condition goes to the
    “arguably conflicting Texas Supreme Court precedent.” 746          “duty” element of the plaintiff's case or to the defendant's
    F.3d at 197. We accepted the certified question as an              proportionate-responsibility defenses or to both, especially
    opportunity to provide greater certainty in this important area    in light of the TWCA's waiver of defenses. We conclude
    of the law. Reviewing this Court's precedents, we endeavor         that (1) employers owe employees the same premises-liability
    to clarify where helpful and resolve apparent conflicts where      duty that other landowners owe to their invitees; (2) in most
    needed. We do so mindful that our decisions regarding              cases, the landowner's premises-liability duty is to either
    common law duties involve “complex considerations of               make safe or warn invitees of concealed dangers of which
    public policy including ‘social, economic, and political           the landowner is or should be aware but the invitee is not;
    questions and their application to the facts at hand.’ ”           and (3) in most cases, a landowner owes no duty to protect an
    Nabors Drilling, U.S.A., Inc. v. Escoto, 
    288 S.W.3d 401
    , 410       invitee against a dangerous condition that is open and obvious
    (Tex.2009) (quoting Humble Sand & Gravel, Inc. v. Gomez,           or known to the invitee, and the TWCA's waiver of defenses
    
    146 S.W.3d 170
    , 182 (Tex.2004)).                                   does not relieve a plaintiff of the burden of proving that the
    defendant owed a duty.
    III.                                 1. Employers and Other Landowners
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 103                8
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    [2] We first clarify and confirm that, generally, 8 an            412; 
    Goss, 262 S.W.3d at 794
    ; Gen. Elec. Co. v. Moritz,
    employer has the same *202 premises-liability duty to its          
    257 S.W.3d 211
    , 216 (Tex.2008); Cent. Ready Mix Concrete
    employees as other landowners have to invitees on their            Co. v. Islas, 
    228 S.W.3d 649
    , 651 (Tex.2007); Shell Oil
    premises. An invitee is “one who enters the property of            Co. v. Khan, 
    138 S.W.3d 288
    , 295 (Tex.2004). The Court
    another ‘with the owner's knowledge and for the mutual             has struggled to characterize the rule, however, in cases in
    benefit of both.’ ” Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d        which the landowner's provision of a warning or the invitee's
    1, 3 (Tex.1996) (quoting Rosas v. Buddies Food Store, 518          knowledge of the risk was not *203 sufficient to make the
    S.W.2d 534, 536 (Tex.1975)). Employees working at their            premises reasonably safe. Today we clarify that these cases
    employers' premises fit this description, and this Court has       present discrete exceptions to the general rule.
    stated that an employer's duty to make its premises reasonably
    safe for employees is “in all material respects ... identical”
    to a landowner's duty to make its premises reasonably                                 a. The General Rule
    safe for invitees. 
    Robinson, 280 S.W.2d at 240
    ; see also
    Hernandez v. Heldenfels, 
    374 S.W.2d 196
    , 197 (Tex.1963)             [5] [6] Applying the general rule, the Court has repeatedly
    (holding that employee was invitee, rather than licensee,          described a landowner's duty as a duty to make safe or warn
    while working at his employer's premises). As mentioned, the       against any concealed, unreasonably dangerous conditions
    Court abolished the no-duty rule only for employer-employee        of which the landowner is, or reasonably should be, aware
    cases in 
    Robinson, 280 S.W.2d at 240
    , but later did the            but the invitee is not. See, e.g., 
    Escoto, 288 S.W.3d at 412
    ;
    same for all other premises-liability cases in Parker, 565         
    Goss, 262 S.W.3d at 794
    ; 
    Moritz, 257 S.W.3d at 216
    ; Islas,
    S.W.2d at 512. Other than that brief rift, the Court has 
    treated 228 S.W.3d at 651
    ; 
    Khan, 138 S.W.3d at 295
    . Ordinarily,
    employers as having the same premises-liability duties as all      the landowner need not do both, and can satisfy its duty
    other landowners, and we confirm that approach today.              by providing an adequate warning even if the unreasonably
    dangerous condition remains. See Williams, 940 S.W.2d at
    [3] In answering the Fifth Circuit's certified question, we       584 (holding that landowner “had a duty to warn or make
    thus consider the premises-liability duties of landowners to       safe, but not both”); see also TXI Operations, L.P. v. Perry,
    invitees generally. The certified question's reference to “a       
    278 S.W.3d 763
    , 765 (Tex.2009) (observing that defendant
    nonsubcribing employer” and to the TWCA's waiver of a              could have satisfied its duty by either repairing pothole
    nonsubscriber's defenses, therefore, has no bearing on our         or providing adequate warning sign). This general rule is
    analysis of an employer's duty. While an employer's liability      consistent with the reasons for imposing a duty on landowners
    may differ from that of other landowners due to the statutory      in the first place. The landowner is typically in a better
    waiver of its defenses, see Kroger Co. v. Keng, 23 S.W.3d          position than the invitee to be aware of hidden hazards on
    347, 352 (Tex.2000), its premises-liability duty is the same as    the premises, so the law mandates that the landowner take
    that owed by landowners to invitees generally.                     precautions to protect invitees against such hazards, to the
    extent the landowner is or should be aware of them. See
    Shell Chem. Co. v. Lamb, 
    493 S.W.2d 742
    , 747 (Tex.1973)
    2. The Duty to Make Safe or Warn                                   (discussing landowner's “superior position to know of or
    [4] At different times, this Court has described a landowner's    discover hidden dangerous conditions on his premises”);
    premises-liability duty to invitees as a duty to make              see also RESTATEMENT (THIRD) OF TORTS: LIAB.
    reasonably safe, 9 a duty to warn, 10 or a duty to make safe       FOR PHYSICAL & EMOTIONAL HARM § 51 cmt. t
    or warn. 11 While potentially confusing, these descriptions        (2012) (addressing landowner's “superior knowledge of the
    are not at odds with each other. A landowner has a duty            dangerous condition”).
    to exercise reasonable care to make the premises safe for
    invitees. Obviously, the landowner can satisfy this duty by        When the condition is open and obvious or known to
    eliminating the dangerous condition or by mitigating the           the invitee, however, the landowner is not in a better
    condition so that it is no longer unreasonably dangerous.          position to discover it. When invitees are aware of dangerous
    See State v. Williams, 
    940 S.W.2d 583
    , 584 (Tex.1996). But         premises conditions—whether because the danger is obvious
    the Court has repeatedly recognized that, in most cases, the       or because the landowner provided an adequate warning
    landowner can also satisfy its duty by providing an adequate       —the condition will, in most cases, no longer pose an
    warning of the danger. See, e.g., Escoto, 288 S.W.3d at            unreasonable risk because the law presumes that invitees
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 104               9
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    will take reasonable measures to protect themselves against       We use the qualifiers “generally,” “ordinarily,” and “in most
    known risks, which may include a decision not to accept           cases” while discussing the general rule because the Court
    the invitation to enter onto the landowner's premises.            has struggled at times with cases in which it concluded that
    See, e.g., RESTATEMENT (THIRD) OF TORTS: LIAB.                    the provision of a warning or the obvious nature of the
    FOR PHYSICAL & EMOTIONAL HARM § 51 cmt.                           danger was not sufficient to make the premises reasonably
    a (2012) (observing that reasonable care “only requires           safe as a matter of law. See, e.g., Del Lago, 307 S.W.3d at
    attending to the foreseeable risks in light of the then-extant    774 (stating that “[i]n some circumstances, no warning can
    environment, including foreseeable precautions by others”);       suffice as reasonably prudent action to reduce or remove an
    RESTATEMENT (SECOND) OF TORTSS § 343 cmt. b                       unreasonable risk”). Thus, in some cases, the Court held that
    (1965) (observing that landowner must “give such warning          an otherwise “adequate” warning or an invitee's knowledge
    that the [invitee] may decide intelligently whether or not        of the danger was not sufficient to discharge the landowner's
    to accept the invitation, or may protect himself against the      duty. See 
    Parker, 565 S.W.2d at 512
    ; Robinson, 280 S.W.2d
    danger if he does accept it”). This is why the Court has          at 240. But in most cases, the Court has continued to apply the
    typically characterized the landowner's duty as a duty to make    general rule. See 
    Goss, 262 S.W.3d at 795
    ; Skiles, 221 S.W.3d
    safe or warn of unreasonably dangerous conditions that are        at 568–69; 
    Elwood, 197 S.W.3d at 795
    . This has resulted in
    not open and obvious or otherwise known to the invitee. See,      the “arguable conflict in Texas law” that led the Fifth Circuit
    e.g., 
    Escoto, 288 S.W.3d at 412
    ; 
    Goss, 262 S.W.3d at 794
    ;         to certify its question to us in this 
    case. 746 F.3d at 204
    .
    
    Moritz, 257 S.W.3d at 216
    ; 
    Islas, 228 S.W.3d at 651
    ; 
    Khan, 138 S.W.3d at 295
    .                                             Today we reaffirm the general rule while clarifying and
    confirming the existence of two exceptions that the Court has
    [7] [8] [9] This general rule is also consistent with the recognized when the landowner's provision of an otherwise
    Court's recognition that a landowner's duty to invitees is     adequate warning is legally insufficient to make the premises
    not absolute. A landowner “is not an insurer of [a] visitor's  reasonably safe. The first exception may arise when a
    safety.” Del Lago Partners, Inc. v. Smith, 
    307 S.W.3d 762
    ,     dangerous condition results from the foreseeable criminal
    769 (Tex.2010) (quoting RESTATEMENT (SECOND) OF                activity of third parties. We will refer to this as the criminal-
    TORTS § 344 cmt. f). Instead, a landowner's premises-          activity exception. The second exception may arise when
    liability duties, like its negligence duties, are limited to a the invitee necessarily must use the unreasonably dangerous
    duty to exercise ordinary, reasonable care. *204 Elwood,       premises, and despite the invitee's awareness and 
    appreciation 197 S.W.3d at 794
    (“An employer has a duty to use ordinary     of the dangers, the invitee is incapable of taking precautions
    care in providing a safe workplace.... However, an employer    that will adequately reduce the risk. We will refer to this as the
    is not an insurer of its employees' safety.”).     12
    Thus, a  necessary-use exception. In cases involving these exceptions,
    defendant has “no duty” to take safety measures beyond those   we have held that the obviousness of the danger and the
    that an ordinary, reasonable landowner would take. What        invitee's appreciation of it may be relevant to a landowner's
    a reasonable landowner would do is often a jury question,      defense based on the invitee's proportionate responsibility,
    but sometimes it is not. The Court has recognized that, in     but they do not relieve the landowner of its duty to make the
    most circumstances, a landowner who provides an adequate       premises reasonably safe.
    warning acts reasonably as a matter of law, and since there
    is no need to warn against obvious or known dangers, a
    landowner generally has no duty to warn of hazards that are                (1) The Criminal–Activity Exception
    open and obvious or known to the invitee. See, e.g., 
    Goss, 262 S.W.3d at 795
    ; 
    Moritz, 257 S.W.3d at 218
    ; Islas, 228 S.W.3d     [10] The seminal case in which this Court defined a
    at 651; 
    Skiles, 221 S.W.3d at 568
    –69; Elwood, 197 S.W.3d at    landowner's duty with regard to protecting invitees against
    795; 
    Khan, 138 S.W.3d at 295
    ; Coastal Marine Serv. of Tex.,    third *205 parties' criminal activities is Timberwalk
    Inc. v. Lawrence, 
    988 S.W.2d 223
    , 225 (Tex.1999).              Apartments, Partners, Inc. v. Cain, 
    972 S.W.2d 749
                                                                   (Tex.1998). In that case, a tenant sued her apartment complex
    after she was sexually assaulted in her apartment, asserting
    that the complex's inadequate security was a proximate cause
    b. Exceptions to the General Rule
    of her assault. 
    Id. at 751.
    After holding that the claims
    sounded in premises liability rather than negligent activity, 
    id. © 2015
    Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 105 10
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    at 753, the Court described the contours of the specific duty     stated that the resort's position would “revive the doctrine
    a landowner owes with respect to third-party criminal acts:       of voluntary assumption of the risk as a complete bar to
    recovery” and would “revive the no-duty rule” by holding
    As a rule, “a person has no legal duty to protect another       “as a matter of law that an invitee's decision not *206
    from the criminal acts of a third person.” An exception         to remove himself from a known and dangerous premises
    is that “[o]ne who controls ... premises does have a duty       condition bars any recovery against the landowner.” 
    Id. at to
    use ordinary care to protect invitees from criminal          772–73. This language at least arguably indicates that the
    acts of third parties if he knows or has reason to know         Court was applying a general rule when it refused to hold
    of an unreasonable and foreseeable risk of harm to the          that the plaintiff's knowledge of the risks eliminated the
    invitee.” ...                                                   landowner's duty to make the premises reasonably safe. But
    the Court expressly clarified that it was not announcing a
    ....
    general rule. 
    Id. at 770
    (“We do not announce a general rule
    ... A duty exists only when the risk of criminal conduct is     today.”). Instead, the Court made it clear that its decision was
    so great that it is both unreasonable and foreseeable.          based on the fact that the plaintiff's awareness of the risk was
    not sufficient in that case to enable him to avoid the harm.
    
    Id. at 756
    (quoting Walker v. Harris, 
    924 S.W.2d 375
    ,             Specifically, in response to the dissent's reliance on section
    377 (Tex.1996)). In addressing this duty, the Court did           343A(1) of the Restatement (Second) of Torts, which posits
    not consider or mention the obviousness or the plaintiff's        that a landowner cannot be liable for harm resulting from
    awareness of the alleged risk, or whether the landowner could     “known or obvious” conditions, the Court pointed out section
    fulfill its duty by providing an adequate warning. See 
    id. Nor 343A
    concludes by saying “unless the [landowner] should
    did the Court do so when describing the Timberwalk duty in        anticipate the harm despite such knowledge or obviousness.”
    cases that followed it. See, e.g., W. Invs., Inc. v. Urena, 162   
    Id. at 774.
    Finding that this language “anticipate[s] today's
    S.W.3d 547 (Tex.2005); 13 Mellon Mortg. Co. v. Holder, 5          uncommon facts,” the Court concluded that the resort “may
    still be liable” because it “had reason to expect harm
    S.W.3d 654 (Tex.1999). 14
    notwithstanding [the plaintiff's] awareness of the risk.” 
    Id. The Court
    thus expressly confirmed that its “narrow and fact-
    More recently, when the plaintiff in Del Lago argued that
    specific” holding applied only when the landowner “should
    unreasonably dangerous conditions resulting from inadequate
    anticipate the harm despite such knowledge or obviousness,”
    security at a bar proximately caused his injuries when a fight
    and that it was “not hold[ing] today that a landowner can
    broke out, the Court again applied the Timberwalk duty:
    never avoid liability as a matter of law in cases of open and
    Generally, a premises owner has no duty to protect invitees     obvious dangers.” 
    Id. from criminal
    acts by third parties. We have recognized an
    exception when the owner knows or has reason to know             [11] Clarifying the arguable conflict in the Court's
    of a risk of harm to invitees that is unreasonable and          precedents, we hold that Del Lago represents an exception
    foreseeable....                                                 to the general rule that a landowner has no duty to warn an
    invitee of unreasonably dangerous conditions that are obvious
    ....                                                         or known to the invitee, which exception applies in cases
    involving dangers resulting from a third party's criminal
    ... We hold that Del Lago had a duty to protect Smith
    conduct in which the landowner should have anticipated
    because Del Lago had actual and direct knowledge that
    that the harm would occur despite the invitee's knowledge
    a violent brawl was imminent between drunk, belligerent
    of the risks. In such cases, the invitee's appreciation of the
    patrons and had ample time and means to defuse the
    danger remains relevant to the landowner's proportionate-
    situation.
    responsibility defenses, see Del 
    Lago, 307 S.W.3d at 772
    –
    Del 
    Lago, 307 S.W.3d at 767
    –69.                                   73, but it does not relieve the landowner of its duty to
    take reasonable steps to make the premises safe. See Eagle
    The Court rejected the resort owner's argument that it had        Trucking Co. v. Tex. Bitulithic Co., 
    612 S.W.2d 503
    , 507
    no duty to protect the plaintiff from the risks because the       (Tex.1981).
    danger was as obvious and known to the plaintiff as it
    was to the resort owner. 
    Id. at 772.
    In doing so, the Court
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 106 11
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    logic, has already undermined the no-duty rule” due to “[t]he
    inextricable mixing” of a defendant's duty and “a plaintiff's
    (2) The Necessary–Use Exception
    burden to negate his own knowledge and appreciation” with
    A second exception to the general rule arises from the Court's      “voluntary assumption of risk”; (3) “[t]he legislature by
    decision in Parker, which predates the Court's later decisions      its adoption in 1973 of the comparative negligence statute
    restating and applying the general rule. In Parker, the plaintiff   evidenced a clear policy purpose to apportion negligence
    fell while descending an improperly lighted staircase in a          according to the fault of the actors”; and (4) “[t]he no-duty
    common area that she had to use to exit her sister's apartment.     doctrine is so elusive that precedent is non-predictive 
    and 565 S.W.2d at 513
    . Because the plaintiff was aware of the           unhelpful.” 
    Id. at 517–18.
    The Court thus concluded that “[a]
    darkness and the dangers it presented, she took measures to         plaintiff's knowledge, whether it is derived from a warning or
    mitigate the risks by having her sister hold a flashlight to        from the facts, even if the facts display the danger openly and
    illuminate the stairs and by taking careful steps while holding     obviously, is a matter that bears upon his own negligence; it
    on to the handrail. 
    Id. at 514.
    Nevertheless, because the stairs    should not affect the defendant's duty.” 
    Id. at 521.
    included narrow, unevenly distributed steps and turned such
    that the flashlight could not illuminate all the way down, the       [12] [13] As we have mentioned, despite this rather clear
    measures were insufficient and the plaintiff fell. 
    Id. The Court
       language, the Court has since repeatedly restated and applied
    adopted in that case the specific and narrow duty recognized        the general no-duty rule in the landowner-invitee context,
    in sections 360 and 361 of the Restatement (Second) of Torts.       without overruling the decision in Parker. See, e.g., Escoto,
    
    Id. at 515–16.
    Under section 
    361, 288 S.W.3d at 412
    ; 
    Goss, 262 S.W.3d at 794
    ; 
    Moritz, 257 S.W.3d at 216
    ; 
    Islas, 228 S.W.3d at 651
    ; Khan, 138 S.W.3d
    [a] possessor of land who leases a part                at 295. To the extent that these decisions conflict with Parker,
    thereof and retains in his own control                 we think the better approach is to follow our more recent
    any other part which is necessary to                   precedent and recognize the Parker rule as an exception that
    the safe use of the leased part, is                    applies when the facts demonstrate that (1) it was necessary
    subject to liability to his lessee and                 that the invitee use the unreasonably dangerous premises and
    others lawfully upon the land with the                 (2) the landowner should have anticipated that the invitee was
    consent of the lessee or a sublessee for               unable to avoid the unreasonable risks despite the invitee's
    physical harm caused by a dangerous                    awareness of them. As the Court observed in Parker:
    condition upon *207 that part of the
    land retained in the lessor's control, if                          One's conduct after he is possessed
    the lessor by the exercise of reasonable                           of full knowledge, under the
    care (a) could have discovered the                                 circumstances may be justified or
    condition and the risk involved, and                               deemed negligent depending upon
    (b) could have made the condition                                  such things as the plaintiff's status, the
    safe.                                                              nature of the structure, the urgency
    or lack of it for attempting to reach
    
    Id. at 515
    (quoting RESTATEMENT (SECOND) OF TORTS                               a destination, the availability of an
    § 361).                                                                         alternative, one's familiarity or lack
    of it with the way, the degree
    In addition, however, the Court abolished the “no-duty rule”                    and seriousness of the danger, the
    in all landowner-invitee cases, using language that is difficult                availability of aid from others, the
    to construe as anything other than the adoption of a new                        nature and degree of the darkness,
    general rule. 
    Id. at 517
    (“We now expressly abolish the so-                     the kind and extent of a warning,
    called no-duty concept in this case and ... ‘henceforth in                      and the precautions taken under the
    the trial of all actions based on negligence....’ ”) (quoting                   circumstances by a plaintiff in walking
    Farley v. M M Cattle Co., 
    529 S.W.2d 751
    , 758 (Tex.1975)).                      down the passageway.
    The Court enumerated its reasons for doing so, including
    its observations that (1) the no-duty rule “has 
    contributed 565 S.W.2d at 520
    . Although the Parker Court concluded that
    confusion which has defied the efforts of our best scholars         these “are matters which bear upon ‘the reasonableness of an
    at explanation and application”; (2) the Court, “based on           actor's conduct in confronting a risk ... under principles of
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  APPENDIX 107 12
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    contributory negligence,’ ” 
    id. (quoting Farley,
    529 S.W.2d
    at 758), the Court's subsequent decisions have repeatedly
    a. Parker and Del Lago
    recognized that, despite Parker, a landowner generally has
    no duty to protect or warn an invitee against unreasonable         The Court's abolition of the no-duty rule in Parker was
    dangers that are open and obvious or otherwise known to the        aimed at correcting a common misapplication of the burdens
    invitee.                                                           of proof in premises-liability cases. Some confusion had
    arisen because, while plaintiffs bear the burden of proving
    [14]      [15]       *208 Resolving the Court's “arguably the existence of a duty, certain “no duty” arguments bleed
    conflicting ... 
    precedent,” 746 F.3d at 197
    , we hold that          into defensive issues—such as assumption of the risk and
    Parker represents a second exception to the general rule.          contributory negligence—on which defendants bear the
    Although, as the Parker Court noted, “not every ‘open and          burden of proof. See 
    Moritz, 257 S.W.3d at 216
    –18; Dixon,
    obvious' condition of danger ... precludes recovery,” 
    565 682 S.W.2d at 533
    –34; McKee v. Patterson, 
    153 Tex. 517
    ,
    S.W.2d at 520, the Court's more recent decisions confirm that      
    271 S.W.2d 391
    , 393 (1954), abrogated by Parker, 565
    some do, as a matter of law. Although “[d]anger is relative,       S.W.2d at 516–19. It was this confusion that led the Court to
    and a person of ordinary care may incur some hazards,” 
    id. adopt the
    no-duty rule:
    the Court's more-recently reaffirmed general rule confirms
    that landowners have no duty to protect or warn such persons                   There are two legal theories, wholly
    when they are aware of the risks and could have avoided                        aside from the plaintiff's own
    them. We thus reaffirm the general rule, but retain Parker                     negligence, for denying liability in a
    as an example of an exception that recognizes a landowner's                    suit against an owner or occupier of
    duty to make its premises safe when, despite an awareness                      land brought by an invitee for injuries
    of the risks, it is necessary that the invitee use the dangerous               growing out of open and obvious
    premises and the landowner should have anticipated that the                    dangers thereon. One rests on the
    invitee is unable to take measures to avoid the risk. When this                judicial concept that there is no breach
    necessary-use exception applies, like the criminal-activity                    of any duty the landowner owes to
    exception, the plaintiff's awareness of the risk does not relieve              his invitees. The other arises out of
    the landowner's duty to make the premises safe, but it remains                 the doctrine of volenti non fit injuria
    relevant to the issue of proportionate responsibility unless that              —voluntary encountering of risk—
    defense is legally unavailable. 
    Id. at 520–21.
                                    which is regarded as a defense to all
    negligence actions.... The failure of
    counsel to segregate and separately
    3. Robinson and the TWCA's waiver of defenses                                  preserve all of these questions in
    This is not the first time we have attempted to clarify and                    pleadings in the trial courts and in
    resolve the apparent conflict between Robinson, Parker, and                    briefs in the appellate courts, thereby
    our more recent decisions upholding the general rule. Here,                    offering the appellate *209 courts
    Austin argues that it cannot be that Kroger owes him “no                       no alternative except to decide the
    duty” with respect to the slip-and-fall risk because this Court                cases before them on the questions
    has abolished the “no-duty rule.” See Del Lago, 307 S.W.3d                     presented, and the tendency of the
    at 772; 
    Parker, 565 S.W.2d at 514
    –15; Robinson, 280 S.W.2d                     appellate courts to group them in
    at 241–42. We previously rejected this argument, however,                      analyzing the evidence, or to seek the
    and attempted to clarify our precedent on multiple occasions.                  most obvious and simplest solution,
    See, e.g., 
    Moritz, 257 S.W.3d at 216
    –18; Dixon v. Van Waters                   has led to much confusion in the
    & Rogers, 
    682 S.W.2d 533
    , 533–34 (Tex.1984). We attempt                        decided cases. In greatly similar fact
    to provide further clarification here, especially as it relates to             situations some are decided on the
    Robinson and the TWCA's defense waivers, and we do so by                       basis of no breach of duty by the
    beginning with a more thorough discussion of Parker, Del                       defendant, some on the basis of
    Lago, and the “no-duty rule.”                                                  voluntary encountering of risk by
    the plaintiff, some on the basis of
    the contributory negligence of the
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 108 13
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    plaintiff, and some on the basis of
    two or more of these factors without                  
    Moritz, 257 S.W.3d at 216
    (quoting Dixon, 682 S.W.2d at
    distinction between them. This has                    533–34). Whether “a duty exists is a question of law for
    led to what appears to be conflicting                 the court,” and if no duty exists, “a jury cannot impose a
    results.                                              duty anyway on the theory that Parker abolished all no-duty
    defenses.” 
    Id. at 217.
    15
    
    McKee, 271 S.W.2d at 393
    .
    [17] Although the common law affirmative defenses of
    Further contributing to the confusion was the common
    assumption of the risk 16 and contributory negligence no
    law's treatment of assumption of the risk and contributory
    longer *210 exist under Texas law, the underlying concepts
    negligence as absolute bars to recovery. See id.; Dugger v.
    remain relevant under Texas's proportionate-responsibility
    Arredondo, 
    408 S.W.3d 825
    , 830 (Tex.2013). Whether the
    statute. See Del 
    Lago, 307 S.W.3d at 772
    (discussing
    obviousness of a risk meant that the defendant owed no duty
    replacement of contributory negligence by proportionate-
    or that the plaintiff had assumed the risk or that the plaintiff
    bore some responsibility for his injury, the result was the        responsibility statute). 17 The same facts that tended to prove
    same: the plaintiff could not recover at all. This made it         assumption of the risk or contributory negligence may now be
    difficult for Texas courts to distinguish between these three      used to diminish a plaintiff's recovery by demonstrating that
    concepts, see 
    Parker, 565 S.W.2d at 516
    , and resulted in an        the plaintiff bore some portion of the responsibility for his
    “oddity that had uniquely developed in Texas,” the placing         own injuries, or even to preclude the plaintiff from recovering
    of an absolute burden on the plaintiff “to negate his own          at all by demonstrating that the plaintiff bore more than 50%
    knowledge and his own appreciation of a danger” as part of         of the responsibility for his own injuries. See TEX. CIV.
    his case-in-chief. 
    Moritz, 257 S.W.3d at 216
    (quoting Dixon,       PRAC. & REM. CODEE §§ 33.001, .003. In other 
    words, 682 S.W.2d at 533
    ).                                                although these are no longer affirmative defenses that act as
    an absolute bar to recovery, they remain defensive issues on
    [16] It is this “oddity” that the Court has referred to as        which defendants, not plaintiffs, bear the burden of proof.
    the no-duty rule—a rule that required plaintiffs to negate
    their own knowledge of the risk in all premises-liability
    cases, regardless of whether that fact was relevant to the                                     b. Robinson
    existence of a duty or to defenses like assumption of the risk
    and contributory negligence. See id.; see also Parker, 565         Even before the Court abolished the no-duty rule in Parker,
    S.W.2d at 517. When the Court abrogated the no-duty rule, it       the Court rejected it in nonsubscriber employment cases in
    ensured that the burden of proving these affirmative defenses      
    Robinson, 280 S.W.2d at 239
    –40. But Robinson's rejection
    remained on defendants, but it did not relieve plaintiffs of the   of the no-duty rule did more than Parker's because the
    burden to prove the existence of a duty as an element of the       TWCA prohibits nonsubscribing employers from relying
    plaintiff's claim. See 
    Moritz, 257 S.W.3d at 216
    ; Dixon, 682       on defenses like assumption of the risk, contributory
    S.W.2d at 533; 
    Parker, 565 S.W.2d at 516
    –17. As the Court          negligence, or proportionate responsibility. TEX. LAB.
    has twice clarified:                                               CODE § 406.033(a). Thus, while the abolition of the no-
    duty rule in other tort actions meant only that the burden
    The rule [in Parker] that the plaintiff               of proving these defensive issues shifted back to defendants,
    does not have the burden to obtain                    the abolition of the no-duty rule in nonsubscribing-employer
    findings that disprove his own fault                  cases meant that, once the plaintiff proved a duty, the
    does not, however, mean that a                        defendant could not rely on the plaintiff's awareness of the
    plaintiff is excused from proving the                 danger at all. See 
    Robinson, 280 S.W.2d at 239
    –40.
    defendant had a duty and breached it.
    A plaintiff does not have the burden                   [18] Just as Parker's abolition of the no-duty rule should not
    to prove and obtain findings that he                  impact typical premises-liability cases where the landowner's
    lacked knowledge and appreciation of                  only duty is to warn of concealed dangers, Robinson's
    a danger; he must, however, prove the                 abolition of the no-duty rule should not impact typical
    defendant had a duty and breached it.                 nonsubscribing-employer cases where the employer owes no
    duty to warn or train employees with respect to dangers
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  APPENDIX 109 14
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    that are commonly known or already appreciated by the               [19] As discussed above, the TWCA prohibits
    employee. See 
    Escoto, 288 S.W.3d at 413
    ; Goss, 262 S.W.3d          nonsubscribing employers from raising the defenses of
    at 794– 95; 
    Skiles, 221 S.W.3d at 568
    ; Elwood, 197 S.W.3d          contributory negligence and assumption of the risk, which
    at 794–95. Instead, the Court's abolition of the no-duty rule      are now subsumed under the proportionate-responsibility
    should play a role only when an exception to the general rule      statute. TEX. LAB. CODE § 406.033(a)(1), (2); Keng, 23
    applies—that is, when the nonsubscribing employer owes a           S.W.3d at 349–52. Although an employee's awareness of
    duty despite the obviousness or employee's appreciation of a       an unreasonable risk may be relevant to such defenses, the
    danger because, despite the awareness of the danger, it is         Court's general rule that we confirm today may permit an
    necessary that the employee use the dangerous premises and         employer to avoid liability despite the TWCA's waiver of
    the employer should anticipate that the employee is unable to      those defenses. It does so, however, not by undermining the
    take measures to avoid the risk. In such cases, the employer       Legislature's prerogative to determine when defenses may or
    cannot rely on the fact that the risk was obvious and known to     may not apply, but by fulfilling this Court's role to determine
    the employee to argue that the employee bears some portion         when a party owes a legal duty to begin with. See Moritz, 257
    of the responsibility for his own injuries, because the TWCA       S.W.3d at 217 (“Whether ... a duty exists is a question of law
    waives those defenses. Compare Del Lago, 307 S.W.3d at             for the court; it is not for the jury to decide under comparative
    772–73; 
    Parker, 565 S.W.2d at 520
    , with TEX. LAB. CODE             negligence or anything else.”).
    § 406.033(a); 
    Keng, 23 S.W.3d at 352
    .
    [20] [21] Moreover, the general rule does not render the
    *211 In rejecting the no-duty rule for nonsubscribing-            statutory waiver ineffective for at least two reasons. First,
    employer cases, the Robinson Court at least arguably rejected      landowners may assert an invitee's negligence based on
    the principle that an employer does not have a duty to warn        conduct other than the invitee's awareness of the risk, and the
    employees of open and obvious hazards. 280 S.W.2d at               TWCA's waiver prohibits a nonsubscribing employer from
    239–40. The Court observed that in the landowner-invitee           relying on any such conduct to do so. See Keng, 23 S.W.3d
    field of law, “[t]he rule is well settled that the owner of        at 351–52. Second, in cases in which the criminal-activity or
    premises is not required to keep them safe for invitees in         necessary-use exceptions apply, and thus the employer has
    so far as open, obvious and known defects or conditions            a duty to the employee despite the employee's awareness of
    are concerned,” but declined to apply that concept to suits        the risk, the TWCA will prevent the employer from relying
    between an employer and employee. 
    Id. at 240.
    The Court            on the employee's awareness of the risk as a defense to the
    then rejected the employer's argument in that case that it         employee's claims. In Parker and Del Lago, the defendants
    had no duty to protect the employee from or warn him of            were not the plaintiffs' employers, and thus they were able to
    a large pool of oil on the floor, even though the record           rely on the plaintiffs' appreciation of the dangers to argue that
    established that the spill was open and obvious, that the          the plaintiff bore some portion of the responsibility for his or
    employee had seen and failed to report the spill to anyone else,   her injuries. 
    Parker, 565 S.W.2d at 520
    –21; Del Lago, 307
    and that the employee recognized that the oil made the floor       S.W.3d at 773–74. But if the defendant in a case that meets the
    slippery. 
    Id. at 239–40.
    In the sixty years since Robinson,        criminal-activity or necessary-use exception is the plaintiff's
    however, this Court has never held that an employer has a          nonsubscribing employer, 20 the TWCA would prohibit that
    duty to warn employees of open and obvious dangers or              defense. See 
    Keng, 23 S.W.3d at 351
    –52.
    relied on Robinson for that proposition. 18 Instead, the Court
    has repeatedly held that an employer does not have a duty          Although the TWCA's waiver of defenses is intended
    to warn employees of dangers that are open and obvious or          to encourage employers to subscribe to the workers'
    already known to the employee. 19 To resolve this apparent         compensation system, the TWCA does not create an
    conflict, we expressly reaffirm the Court's more recent *212       “especially punitive litigation regime for non-subscribing
    holdings, and we overrule Robinson to the extent it conflicts      employers.” Tex. W. Oaks Hosp., LP v. Williams, 371
    with those holdings and with our recognition of the criminal-      S.W.3d 171, 192 (Tex.2012). Absent intentional misconduct,
    activity and necessary-use exceptions in this case.                employees still must prove all the elements of a common
    law negligence claim to prevail against nonsubscribing
    employers. See TEX. LAB. CODE § 406.033(d); Tex. W.
    
    Oaks, 371 S.W.3d at 187
    . “In other words,” as the Fifth
    c. The TWCA                                Circuit observed in this case, TWCA “section 406.033(a)(1)–
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 110 15
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    (3) may limit an employer's defenses, but it does not eliminate   possessor should anticipate the harm despite such knowledge
    an employee's *213 burden to establish his common law             or obviousness,’ ” and “[t]hat caveat seems to capture today's
    
    claim.” 746 F.3d at 198
    (citing Am. Int'l Specialty Lines Ins.    narrow and fact-specific holding.” Del Lago, 307 S.W.3d at
    Co. v. Rentech Steel, L.L.C., 
    620 F.3d 558
    , 565 (5th Cir.2010);   774 (quoting RESTATEMENT (SECOND) OF TORTS §
    Tex. W. 
    Oaks, 371 S.W.3d at 187
    ). This burden, of course,         343A(1)).
    includes the burden to prove that a defendant had a duty
    to the plaintiff, which is the issue that our general rule and    Austin contends that the same reasoning should apply here,
    exceptions address.                                               and that it would apply regardless of whether the Court
    employed an objective or subjective standard for evaluating
    the reasonableness of his conduct, because “it was objectively
    B. No new exception                                               reasonable for an employee in his situation to attempt
    [22] Having clarified the general rule that an employer or       to perform his assigned task, notwithstanding the obvious
    landowner owes no duty to protect or warn an employee or          dangers posed by th[e] condition” of the floor. Essentially,
    invitee against unreasonably dangerous premises conditions        Austin argues that it was reasonable for him to undertake the
    that are open and obvious or otherwise known to the               risk of slipping in the oily liquid because, although he was
    employee or invitee, and the criminal-activity and necessary-     aware of the risk, he undertook it at the instruction of his
    use exceptions that preserve that duty under limited              employer rather than by purely voluntary choice. While this
    circumstances, we now address Austin's argument that we           argument has some appeal, we are not persuaded for several
    should recognize a new exception in this case. Specifically,      reasons.
    Austin asserts that we should recognize a distinct duty in
    cases where an employee is injured while performing a task        First, Texas law treats Austin's encounter with the spill as
    that the employer specifically assigned to the employee. We       voluntary in nature, even though it was part of his work
    decline to do so.                                                 duties. See 
    McKee, 271 S.W.2d at 396
    (exploring historical
    underpinning of this rule). If we created an exception to
    Both Parker and Del Lago indicated that there may be              the general rule that employers owe no premises-liability
    circumstances in which invitees may reasonably be expected        duty with respect to open and obvious conditions unless
    to choose to encounter a dangerous condition despite their        the employee encountered the condition as part of his work
    knowledge and appreciation of the risk. In Parker, the Court      duties, the exception would swallow the rule. Moreover, the
    quoted a comment from the Second Restatement stating that         employees in Goss, Skiles, and Elwood were engaged in their
    a landlord's duty with respect to common areas                    work duties at the time of their injuries. *214 Austin argues
    that those cases are distinguishable because the behavior that
    is not always satisfied by warning
    led to the employees' injuries was risky and unnecessary
    the lessee or others of the dangerous
    to performance of the assigned task. See Goss, 262 S.W.3d
    condition, and ... knowledge of such
    at 794 (hitting shin on three-foot-tall cart while walking
    persons of the danger will not always
    in warehouse); 
    Skiles, 221 S.W.3d at 567
    (climbing over
    prevent their recovery. Where, for
    nonfunctioning lift gate); 
    Elwood, 197 S.W.3d at 794
    (putting
    example, the entrance to an apartment
    hand in car doorjamb while loading groceries). But we see
    house is dangerously defective, and
    nothing exceedingly risky about walking in the vicinity of a
    there is no other available entrance, the
    third person may be expected to use it                grocery cooler. See 
    Goss, 262 S.W.3d at 794
    . 21 And it is not
    notwithstanding any warning, or even                  clear that the employee in Skiles could have accomplished his
    his own knowledge of the danger.                      assigned task of unloading the truck without climbing over
    the broken lift 
    gate. 221 S.W.3d at 567
    . He could have 
    simply 565 S.W.2d at 515
    (quoting RESTATEMENT (SECOND)                   declined to unload the truck at that time, but an employee
    OF TORTS § 360 cmt. c). This example encapsulated the             always has the option to decline to perform an assigned task
    facts of Parker, where the invitee had no other means to exit     and incur the consequences of that decision. See McKee, 271
    the second-story apartment except by the dangerous staircase.     S.W.2d at 396.
    See 
    id. at 514.
    And in Del Lago, the Court stated that section
    343A(1) of the Second Restatement “bars liability when an         [23] Second, Austin's proposed exception is not compatible
    invitee is aware of the dangerous condition, ... ‘unless the      with our precedent that “when an employee's injury results
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 111 16
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    from performing the same character of work that employees          the district court's summary judgment for Kroger on Austin's
    in that position have always done, an employer is not liable       negligent-activities claim, agreeing with the district court's
    if there is no evidence that the work is unusually precarious.”    holding that Austin's injury arose from a premises condition
    
    Elwood, 197 S.W.3d at 795
    (citing Werner v. Colwell, 909           rather than any contemporaneous activity by Kroger, and
    S.W.2d 866, 869 (Tex.1995), which cites Great Atl. & Pac.          that Austin “cannot pursue both a negligent activity and
    Tea Co. v. Evans, 
    142 Tex. 1
    , 
    175 S.W.2d 249
    , 251 (1943)). It      a premises defect theory of recovery based on the same
    is undisputed that mopping up spills is the same character of      
    injury.” 746 F.3d at 197
    . The Fifth Circuit remanded Austin's
    work that Austin—as the store's self-described “floor clean-       necessary-instrumentalities claim, however, because the
    up person”—and other employees in his position have always         district court had “failed to consider whether ... [that theory]
    done.                                                              is sufficient to support a stand-alone ordinary negligence
    claim.” 
    Id. Third, the
    most efficient way for employers like Kroger to
    eliminate a dangerous condition like the spill in this case is     The Fifth Circuit's certified question only addresses Austin's
    to have a trained employee clean it, and it is the public policy   premises-liability claim, and for that reason some Justices
    in Texas to encourage them to do so. See, e.g., Tex. Trunk         would not reach Austin's necessary-instrumentalities claim.
    Ry. Co. v. Ayres, 
    83 Tex. 268
    , 
    18 S.W. 684
    , 685–86 (1892).         But Kroger asks us to reach the instrumentalities claim,
    For example, because public policy encourages landowners           asserting that the claim fails as a matter of law for several
    to remedy potentially dangerous conditions on their property,      reasons. We decline to decide the merits of Austin's
    we have prohibited plaintiffs from relying on evidence that a      instrumentalities claim, but in the interest of judicial
    defendant made repairs or otherwise remediated a dangerous         efficiency we will address one of Kroger's arguments, which
    condition on its property after the plaintiff's injury as proof    touches on the relationship between the instrumentalities
    of the defendant's negligence, observing that a defendant          claim and the premises-liability claim. Specifically, Kroger
    would be discouraged from making repairs “if it must do so         argues that the instrumentalities claim must fail for the
    at its peril.” 
    Id. at 686
    (discussing predecessor to TEX. R.       same reason the negligent-activities claim must fail: because
    EVID. 407(a)). Imposing liability on employers for injuries to     a condition of the premises, rather than any of Kroger's
    employees caused by open and obvious dangers knowingly             contemporaneous activities, caused Austin's fall, his claim
    encountered by the employee in the ordinary course of              sounds exclusively in premises liability, and he can only
    employment would discourage employers from retaining               recover on that claim or not at all. We do not agree.
    employees to perform the kinds of repair and janitorial work
    necessary to maintain their premises in a reasonably safe           [25] In a typical premises-liability case, the landowner
    condition. Because landowners generally are not liable to          owes the invitee two duties: a duty to keep the premises
    non-employees for open and obvious premises conditions,            reasonably safe and a duty not to injure the invitee
    see 
    Moritz, 257 S.W.3d at 215
    , making landowners liable            through contemporaneous negligent activity. See, e.g.,
    to employees for such conditions directly disincentivizes          State v. Shumake, 
    199 S.W.3d 279
    , 284 (Tex.2006)
    employers from hiring employees to remedy such conditions.         (distinguishing a negligent-activity claim, which “result[s]
    We thus decline to recognize the new exception that Austin         from a contemporaneous activity,” from a premises-defect
    proposes.                                                          claim, which “is based on the property itself being unsafe”);
    Keetch v. Kroger Co., 
    845 S.W.2d 262
    , 265 (Tex.1992)
    (holding that trial court did not err in submitting only
    premises-liability claim when injury arose from pool of
    IV.
    water that employee had created at least thirty minutes
    before accident). Thus, when a claim does not result from
    Austin's Necessary–Instrumentalities Claim                  contemporaneous activity, the invitee has no negligent-
    activity claim, and his claim sounds exclusively in premises-
    [24] As noted above, in addition to his premises-liability
    liability. See 
    Shumake, 199 S.W.3d at 284
    ; Keetch, 845
    claim, Austin alleged *215 that Kroger negligently caused
    S.W.2d at 265.
    his fall by engaging in negligent activities and by negligently
    failing to provide a “necessary instrumentality,” namely,
    [26] But when the landowner is also an employer and the
    the Spill Magic system that Kroger's employee handbook
    invitee is also its employee, this additional relationship may
    required be available at the store. The Fifth Circuit affirmed
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 112 17
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    give rise to additional duties, such as a duty to provide        contemporaneous negligent activity is not necessary to an
    necessary equipment, training, or supervision. See Moritz,       instrumentalities claim, the absence of 
    contemporaneous 257 S.W.3d at 215
    & n. 15; 
    Islas, 228 S.W.3d at 651
    –52 &         activity does not necessarily bar an instrumentalities claim. 23
    n. 10; 
    Farley, 529 S.W.2d at 754
    . Austin's instrumentalities
    claim invokes one of these additional duties: the duty to           [30] To hold otherwise would create disparate treatment of
    furnish reasonably safe equipment necessary for performance        employees' instrumentalities claims depending on whether
    of the job. See In re Macy's Tex., Inc., 
    291 S.W.3d 418
    , 420       the employer owned or operated the premises where the
    (Tex.2009); 
    Escoto, 288 S.W.3d at 412
    ; Moritz, 257 S.W.3d          employee worked. Only an employer that has control over
    at 215; 
    Farley, 529 S.W.2d at 754
    . We have addressed the           the premises where the employee is injured has a premises-
    interaction between premises-liability claims and negligent-       liability duty to the employee, but the duty to provide
    activity claims on several occasions. See, e.g., Del Lago, 307     necessary and safe instrumentalities applies to employers
    S.W.3d at 776; 
    Shumake, 199 S.W.3d at 284
    ; Keetch, 845             generally. See 
    Moritz, 257 S.W.3d at 215
    ; Islas, 228 S.W.3d
    S.W.2d at 264. But we have never addressed the interaction         at 651–52 & n. 10; 
    Farley, 529 S.W.2d at 754
    . If we
    between premises-liability claims and an employer's *216           were to adopt the rule Kroger advocates, employees injured
    other general negligence duties. We do so now.                     on their employers' premises by the employer's failure to
    provide necessary and safe equipment would have to try
    [27] When an injury arises from a premises condition, it is their claims under a premises-liability theory of recovery,
    often the case that any resulting claim sounds exclusively         while employees injured on premises not owned by their
    in premises liability, but that is not necessarily the case. An    employers would have to prosecute the same breach of duty
    injury can have more than one proximate cause. Del Lago,           under a general negligence theory of recovery—two 
    different 307 S.W.3d at 774
    ; Lee Lewis Constr., Inc. v. Harrison, 70         claims with different elements of proof. Compare Henkel v.
    S.W.3d 778, 784 (Tex.2001). The fact that Austin alleged that      Norman, 
    441 S.W.3d 249
    , 251–52 (Tex.2014) (“To prevail
    a condition of the premises proximately caused his injury does     on a premises liability claim against a property owner, an
    not preclude his allegation that Kroger's negligent failure to      *217 injured invitee must establish four elements: (1) the
    provide the Spill Magic system also caused his injury. If the      property owner had actual or constructive knowledge of the
    only relationship between Austin and Kroger were that of           condition causing the injury; (2) the condition posed an
    landowner–invitee, the alleged facts could only give rise to       unreasonable risk of harm; (3) the property owner failed to
    a premises-liability claim. Because the failure to provide the     take reasonable care to reduce or eliminate the risk; and (4)
    Spill Magic system is nonfeasance, and not contemporaneous         the property owner's failure to use reasonable care to reduce
    negligent activity, it could not give rise to a negligent-activity or eliminate the risk was the proximate cause of injuries to
    claim. 22 See Del 
    Lago, 307 S.W.3d at 776
    (distinguishing          the invitee.”), with 
    Elwood, 197 S.W.3d at 794
    (“To establish
    between allegations of “nonfeasance,” or the failure to act,       negligence, a party must establish a duty, a breach of that
    and allegations of misfeasance, or improper actions).              duty, and damages proximately caused by the breach.”). We
    see no reason why employees injured by a breach of the
    [28]    [29] As Austin's employer, Kroger owed Austin same duty should have to prove different elements to recover.
    duties in addition to its premises-liability duty and its duty     We therefore reject Kroger's argument that its lack of any
    not to engage in negligent activities, including the duty to       negligent activity contemporaneous with Austin's fall defeats
    provide Austin with necessary instrumentalities. See Moritz,       Austin's instrumentalities claim as a matter of 
    law. 257 S.W.3d at 215
    & n. 15; 
    Islas, 228 S.W.3d at 651
    –
    52 & n. 10; 
    Farley, 529 S.W.2d at 754
    . Contemporaneous
    negligent activity is not an element of an instrumentalities
    V.
    claim. See 
    Farley, 529 S.W.2d at 756
    –57. To the contrary,
    an instrumentalities claim may be founded on nonfeasance
    or misfeasance, neither of which is particularly likely to                                    Answer
    occur contemporaneously with a resulting injury to the
    For the reasons we have explained, we provide the following
    employee. Compare 
    Martinez, 515 S.W.2d at 265
    (failure to
    answer to the Fifth Circuit's certified question: Under Texas
    provide adequate equipment), with 
    Farley, 529 S.W.2d at 757
                                                                       law, an employee generally cannot “recover against a
    (provision of unsuitable horse); cf. Del Lago, 307 S.W.3d
    nonsubscribing employer for an injury caused by a premises
    at 776 (discussing misfeasance and nonfeasance). Because
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 113 18
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    are open and obvious or otherwise known to the employee.
    defect of which he was fully aware but that his job duties
    Exceptions to this general rule may apply in premises liability
    required him to remedy.” As is the case with landowners and
    cases involving third-party criminal activity or a necessary
    invitees generally, employers have a duty to maintain their
    use of the premises. If an exception applies, the employer may
    premises in a reasonably safe condition for their employees,
    owe a duty to protect the employee from the unreasonably
    but they will ordinarily satisfy their duty as a matter of law
    dangerous condition despite the employee's awareness of
    by providing an adequate warning of concealed dangers
    the danger, and the TWCA will prohibit a nonsubscribing
    of which they are or should be aware but which are not
    employer from raising defenses based on the employee's
    known to the employee. “The employee's awareness of the
    awareness.
    defect” does not “eliminate the employer's duty to maintain
    a safe workplace,” but with respect to premises conditions,
    that duty is ordinarily satisfied by warning the employee
    All Citations
    of concealed, unknown dangers; the duty to maintain a
    reasonably safe workplace generally does not obligate an           
    465 S.W.3d 193
    , 165 Lab.Cas. P 61,602, 58 Tex. Sup. Ct. J.
    employer to eliminate or warn of dangerous conditions that         1154
    Footnotes
    1      
    746 F.3d 191
    (5th Cir.2014) (per curiam); see TEX. CONST. Art. V, § 3–c(a) (“The supreme court [has] jurisdiction to
    answer questions of state law certified from a federal appellate court.”); TEX. R. APP. P. 58 (certified questions of law).
    2      See TEX. LAB. CODE § 406.002 (providing that “an employer may elect to obtain workers' compensation insurance
    coverage” and thus be “subject to” the Texas Workers' Compensation Act).
    3      See, e.g., State v. Shumake, 
    199 S.W.3d 279
    , 284 (Tex.2006) ( “A negligent activity claim requires that the claimant's
    injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity.”).
    4      See, e.g., Farley v. M M Cattle Co., 
    529 S.W.2d 751
    , 754 (Tex.1975) (“It is well established that an employer has certain
    nondelegable and continuous duties to his employees,” including “the duty to furnish reasonably safe instrumentalities
    with which employees are to work.”).
    5      The district court held, and the Fifth Circuit agreed, that Austin's injury arose from a premises condition rather than any
    contemporaneous activity by Kroger, and Austin “cannot pursue both a negligent activity and a premises defect theory
    of recovery based on the same 
    injury.” 746 F.3d at 196
    –97.
    6      The Fifth Circuit agreed with the district court's holding that “no reasonable juror could conclude that Kroger was
    consciously indifferent to the safety of its employees, or that [Austin] faced an extreme risk in performing a job he had
    done safely for years.” 
    Id. at 196
    n. 2.
    7      A premises-liability duty may apply to the owner of the premises or to another party who operates or exercises control
    over the premises. See, e.g., Gen. Elec. Co. v. Moritz, 
    257 S.W.3d 211
    , 215 (Tex.2008). We use the term “landowner”
    in this opinion to refer to all such parties.
    8      We use the term “generally” here to acknowledge circumstances in which an employee may not be an “invitee” on
    the employer's premises. For example, if an employee, acting outside the scope of employment, enters the employer's
    premises without the employer's knowledge and not for their mutual benefit, the employee might be a licensee or even
    a trespasser. We need not decide that issue here.
    9      E.g., Del Lago Partners, Inc. v. Smith, 
    307 S.W.3d 762
    , 771 (Tex.2010); TXI Operations, L.P. v. Perry, 
    278 S.W.3d 763
    ,
    764 (Tex.2009); Werner v. Colwell, 
    909 S.W.2d 866
    , 869 (Tex.1995).
    10     E.g., 
    Escoto, 288 S.W.3d at 412
    ; 
    Goss, 262 S.W.3d at 794
    ; Cent. Ready Mix Concrete Co. v. Islas, 
    228 S.W.3d 649
    , 651
    (Tex.2007); Shell Oil Co. v. Khan, 
    138 S.W.3d 288
    , 295 (Tex.2004).
    11     E.g., Henkel v. Norman, 
    441 S.W.3d 249
    , 252 (Tex.2014); 
    TXI, 278 S.W.3d at 765
    ; State v. Williams, 
    940 S.W.2d 583
    ,
    584 (Tex.1996).
    12     See also Wal–Mart Stores, Inc. v. Reece, 
    81 S.W.3d 812
    , 814 (Tex.2002) (stating that landowner owed invitee “a
    duty to exercise reasonable care to protect her from dangerous conditions in the store that were known or reasonably
    discoverable, but it was not an insurer of her safety”); Leitch v. Hornsby, 
    935 S.W.2d 114
    , 117 (Tex.1996) (“An employer
    is not an insurer of its employees' safety at work; however, an employer does have a duty to use ordinary care in providing
    a safe work place.”).
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                   APPENDIX 114 19
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    13     In Urena, we recognized that the facts of that case—tenant-on-tenant crime as opposed to crimes committed against
    tenants by nonresidents—might require a different duty analysis than that used in Timberwalk, but we did not reach that
    issue because, even assuming a duty existed, the plaintiff presented no evidence of 
    causation. 162 S.W.3d at 551
    n. 2.
    14     In Holder, we restated the duty rule from Timberwalk: “With regard to criminal acts of third parties, property owners owe
    a duty to those who may be harmed by the criminal acts only when the risk of criminal conduct is so great that it is both
    unreasonable and 
    foreseeable.” 5 S.W.3d at 655
    . But we also noted that, in most cases, “the foreseeability analysis
    will be shaped by determining whether the plaintiff was an invitee, a licensee, or a trespasser.” 
    Id. We did
    not have to
    determine the plaintiff's status in that case because the plaintiff “was an unforeseeable victim regardless of her status.” 
    Id. 15 In
    TXI, the Court did not refute this construction of Parker, which is consistent with the Court's explanations in Moritz and
    Dixon, but instead “assume[d] that a duty to warn exist[ed]” because the defendant did “not attempt to argue that it owed
    no duty,” and argued instead that it satisfied its duty by providing an adequate warning. 
    TXI, 278 S.W.3d at 765
    .
    16     The common law assumption-of-the-risk doctrine we refer to here involves implied assumptions of risk and not express,
    contractual assumption of the risk or statutory assumption-of-the-risk defenses. See, e.g., TEX. CIV. PRAC. & REM.
    CODEE § 93.001.
    17     See also 
    Dugger, 408 S.W.3d at 832
    (“Proportionate responsibility abrogated former common law doctrines that barred a
    plaintiff's recovery because of the plaintiff's conduct—like assumption of the risk, imminent peril, and last clear chance—
    in favor of submission of a question on proportionate responsibility.”); TEX. CIV. PRAC. & REM. CODE E §§ 33.001–.017
    (proportionate-responsibility statute).
    18     This Court has cited Robinson on seven occasions. See Lawrence v. CDB Servs., Inc., 
    44 S.W.3d 544
    , 549 (Tex.2001);
    
    Werner, 909 S.W.2d at 868
    ; Hernandez v. City of Fort Worth, 
    617 S.W.2d 923
    , 925 (Tex.1981); Leadon v. Kimbrough
    Bros. Lumber Co., 
    484 S.W.2d 567
    , 568 (Tex.1972); Royal Indem. Co. v. Dennis, 
    410 S.W.2d 185
    , 187 (Tex.1966);
    Tarver v. Tarver, 
    394 S.W.2d 780
    , 782 (Tex.1965); Halepeska v. Callihan Interests, Inc., 
    371 S.W.2d 368
    , 377 (Tex.1963),
    abrogated by 
    Parker, 565 S.W.2d at 516
    . On three of those occasions, the Court cited Robinson for an error-preservation
    issue rather than the holding on the merits of the case. See 
    Hernandez, 617 S.W.2d at 925
    ; 
    Dennis, 410 S.W.2d at 187
    ;
    
    Tarver, 394 S.W.2d at 782
    . On four occasions the Court cited Robinson for merits-based holdings. See 
    Lawrence, 44 S.W.3d at 549
    ; 
    Werner, 909 S.W.2d at 868
    ; 
    Leadon, 484 S.W.2d at 568
    –69; 
    Halepeska, 371 S.W.2d at 377
    . One such
    case, Halepeska, was not an employer-employee case, and was later abrogated by Parker. 
    Halepeska, 371 S.W.2d at 377
    . Leadon did not involve an argument that the danger at issue was open and obvious or known to the employee;
    instead, the issue was whether the employer had a duty to hire someone to watch for falling limbs while the employee
    performed his logging 
    work. 484 S.W.2d at 568
    –69. In Werner, the Court cited Robinson for the general principle that an
    employee cannot recover on a negligence claim against a nonsubscribing employer without proving that the employer was
    negligent. 
    Werner, 909 S.W.2d at 868
    (holding that there was no evidence of the negligence alleged). And in Lawrence,
    which was later superseded in part by statute, see TEX. LAB. CODE § 406.033(e), we cited Robinson, among numerous
    other cases, only for the proposition that the Workers' Compensation Act did not bar all possible defenses to liability a
    nonsubscribing employer might have. 
    Lawrence, 44 S.W.3d at 549
    .
    19     See 
    Escoto, 288 S.W.3d at 412
    –13 (“[T]he employer ‘owes no duty to warn of hazards that are commonly known or
    already appreciated by the employee.’ ... Likewise, we do not impose a duty to train employees regarding the commonly-
    known dangers of driving while fatigued.”); 
    Goss, 262 S.W.3d at 794
    (“The threshold question here is one of duty, as
    we have held that an employer ‘owes no duty to warn of hazards that are commonly known or already appreciated by
    the employee.’ ”); 
    Skiles, 221 S.W.3d at 568
    (“[W]hile the duty of ordinary care generally requires an employer to ‘warn
    an employee of the hazards of employment and provide needed safety or equipment or assistance,’ the employer ‘owes
    no duty to warn of hazards that are commonly known or already appreciated by the employee.’ ”); 
    Elwood, 197 S.W.3d at 795
    (“[Employer] had no duty to warn [employee] of a danger known to all and no obligation to provide training or
    equipment to dissuade an employee from using a vehicle doorjamb for leverage.”).
    20     Some courts of appeals have applied Timberwalk in employer–employee premises-liability cases. See, e.g., Barton v.
    Whataburger, Inc., 
    276 S.W.3d 456
    , 462 (Tex.App.–Houston [1st Dist.] 2008, pet. denied); Gibbs v. ShuttleKing, Inc.,
    
    162 S.W.3d 603
    , 610 (Tex.App.–El Paso 2005, pet. denied); Allen v. Connolly, 
    158 S.W.3d 61
    , 65 (Tex.App.–Houston
    [14th Dist.] 2005, no pet.). We have never expressly held that Timberwalk governs an employer's duty to employees with
    respect to third-party criminal activity on the premises, and that issue is not presented here. We have held, and hold
    again here, that at least in general, an employer's premises-liability duty to employees is the same as other landowners'
    premises-liability duties to other invitees. See, e.g., 
    Hernandez, 374 S.W.2d at 197
    .
    21     In Goss, the employee had to “maneuver around a ‘lowboy’ loading cart” to retrieve items from a deli 
    cooler. 262 S.W.3d at 794
    . “She successfully stepped over the cart and entered the cooler. After she retrieved what she needed, she turned
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                    APPENDIX 115 20
    Austin v. Kroger Texas, L.P., 
    465 S.W.3d 193
    (2015)
    165 Lab.Cas. P 61,602, 
    58 Tex. Sup. Ct. J. 1154
    around to leave the cooler and hit her shin on the lowboy, causing her to reach out for a shelf to prevent herself from
    falling. In doing so, she injured her back.” 
    Id. 22 We
    do not decide here whether a single injury could give rise to both a premises-liability claim and a negligent-activity
    claim if both the condition of the premises and the contemporary activities of the premises owner proximately cause the
    injury.
    23     We do not decide which, if any, of the limitations on an employer's premises-liability duty may also apply to its
    instrumentalities duty.
    End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 116 21
    Kroger Co. v. Elwood, 
    197 S.W.3d 793
    (2006)
    
    49 Tex. Sup. Ct. J. 623
    not recover for injuries sustained when customer
    slammed car door on employee's hand; no
    KeyCite Yellow Flag - Negative Treatment                                evidence was presented indicating that loading
    Distinguished by Duncan v. First Texas Homes,   Tex.App.-Fort Worth,
    groceries on sloped portion of store's parking
    February 12, 2015
    lot was unusually dangerous, that other courtesy
    clerks had suffered similar injuries, that job
    required special training, or that carts with wheel
    locks were necessary to safely load vehicles, and
    employee admitted he knew it was dangerous to
    place hand on vehicle doorjamb.
    9 Cases that cite this headnote
    [2]   Workers' Compensation
    Instructions
    Synopsis
    Background: Grocery store employee brought negligence                        Nonsubscribers to workers' compensation are not
    action against grocery store for injuries sustained when                     entitled to a contributory negligence instruction
    customer slammed car door on employee's hand while he                        in an employee's action for work-related injuries.
    was loading groceries into her car. The 18th Judicial District
    Cases that cite this headnote
    Court, Johnson County, John E. Neill, J., entered judgment on
    jury's verdict in favor of employee, and employer appealed.
    The Court of Appeals affirmed.                                         [3]   Negligence
    Elements in General
    To establish negligence, a party must establish
    [Holding:] On petition for review, the Supreme Court held                    a duty, a breach of that duty, and damages
    that grocery store had no duty to warn employee of danger of                 proximately caused by the breach.
    placing hand on doorjamb of customer's vehicle while loading
    76 Cases that cite this headnote
    groceries.
    [4]   Negligence
    Reversed and rendered.                                                           Necessity and Existence of Duty
    Negligence
    Duty as Question of Fact or Law Generally
    West Headnotes (10)                                                         Whether a duty exists is a threshold inquiry and
    a question of law in a negligence action; liability
    cannot be imposed if no duty exists.
    [1]     Labor and Employment
    Duty to Warn                                                    28 Cases that cite this headnote
    Labor and Employment
    Dangers or Defects Known to Employee
    [5]   Labor and Employment
    Grocery store had no duty to warn store                                 Nature and Scope of Duty Owed by
    employee of danger of placing hand on vehicle                       Employer
    doorjamb and one foot on grocery cart to
    An employer has a duty to use ordinary care in
    prevent it from rolling on sloped parking lot
    providing a safe workplace.
    while loading groceries into customer's vehicle,
    or to provide grocery carts with wheel locks                        14 Cases that cite this headnote
    or additional personnel to assist with loading
    groceries into vehicles, and thus, employee could
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  APPENDIX 117                  1
    Kroger Co. v. Elwood, 
    197 S.W.3d 793
    (2006)
    
    49 Tex. Sup. Ct. J. 623
    employer is not liable if there is no evidence that
    [6]    Labor and Employment                                       the work is unusually precarious.
    Nature and Scope of Duty Owed by
    Employer                                                   6 Cases that cite this headnote
    Labor and Employment
    Kind of Equipment
    Labor and Employment
    Duty to Warn                                  Attorneys and Law Firms
    An employer has a duty to warn an employee of     *794 Brian J. Brandstetter, Brackett & Ellis, P.C., Fort
    the hazards of employment and provide needed      Worth, for Petitioner.
    safety equipment or assistance.
    Rodney R. Elkins, Rodney R. Elkins & Co., Dallas, for
    25 Cases that cite this headnote                  Respondent.
    Opinion
    [7]    Labor and Employment
    Liability as Insurer; Relationship to         PER CURIAM.
    Workers' Compensation
    An employer is not an insurer of its employees'   Billy Elwood, a courtesy clerk at a Kroger grocery store,
    safety.                                           was injured when a customer shut her vehicle door on his
    hand while he was transferring items from a grocery cart
    5 Cases that cite this headnote                   to the vehicle. Elwood had placed one hand in the vehicle's
    doorjamb, and one foot on the cart, to keep the cart from
    rolling down a slope in Kroger's parking lot. In the trial court,
    [8]    Labor and Employment
    a jury found Kroger liable for Elwood's injuries; the court of
    Dangers or Defects Known to Employee
    appeals affirmed the judgment. Because Kroger had no duty
    An employer owes no duty to warn an employee      to warn Elwood not to place his hand in a doorjamb, and there
    of hazards that are commonly known or already     is no evidence that additional equipment or assistance were
    appreciated by the employee.                      needed to perform Elwood's job safely, we reverse and render
    judgment for Kroger.
    24 Cases that cite this headnote
    [1] Kroger is a nonsubscriber to workers' compensation;
    [9]    Labor and Employment                              therefore, to recover damages Elwood must establish that
    Nature and Scope of Duty Owed by              Kroger's negligence proximately caused his injuries. See
    Employer                                          Werner v. Colwell, 
    909 S.W.2d 866
    , 868 (Tex.1995). Elwood
    Labor and Employment                              alleges that Kroger provided inadequate training on how to
    Kind of Equipment                             maneuver carts on a sloped parking lot, never advised that he
    An employer has no duty to provide to its         should take a second clerk with him to the sloped portion of
    employees equipment or assistance that is         the lot, and provided no explanation on how to avoid injury
    unnecessary to the job's safe performance.        when loading groceries into customers' vehicles. Elwood also
    alleges that, even though Kroger was aware that customers'
    11 Cases that cite this headnote                  vehicles were often damaged by rolling carts in the sloped
    parking area, it never provided carts with locking wheels or
    wheel blocks.
    [10]   Labor and Employment
    Working Conditions and Methods of
    [2] A jury found Kroger liable for Elwood's injuries, but
    Performing Work
    also determined that Elwood was forty percent negligent.
    When an employee's injury results from            The trial court reduced Elwood's judgment accordingly. A
    performing the same character of work that        divided court of appeals affirmed the verdict, holding it was
    employees in that position have always done, an   supported by factually and legally sufficient evidence. 2004
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.         APPENDIX 118                  2
    Kroger Co. v. Elwood, 
    197 S.W.3d 793
    (2006)
    
    49 Tex. Sup. Ct. J. 623
    Great Atl. & Pac. Tea Co. v. Evans, 
    142 Tex. 1
    , 175 S.W.2d
    WL 2567069. Because nonsubscribers are not entitled to
    249, 251 (1943)).
    a contributory negligence instruction, the court of appeals
    reformed the judgment and awarded Elwood one hundred
    In this case, there is no evidence that loading groceries on
    percent of the damages. 
    2004 WL 2567069
    (citing Kroger
    the sloped portion of Kroger's parking lot is an unusually
    Co. v. Keng, 
    23 S.W.3d 347
    , 352 (Tex.2000)). Kroger now
    dangerous job, nor is there evidence that other courtesy
    petitions for review, arguing that there is no evidence to
    clerks sustained similar injuries while loading groceries on
    support the jury's verdict.
    the sloped lot. Indeed, loading purchases into vehicles is a
    [3] [4] To establish negligence, a party must establish a task performed regularly—without any special training or
    assistance—by customers throughout the grocery and retail
    duty, a breach of that duty, and damages proximately caused
    industry. While there is evidence that grocery carts had rolled
    by the breach. 
    Werner, 909 S.W.2d at 869
    (citing El Chico
    into vehicles due to the parking lot's slope and may have posed
    Corp. v. Poole, 
    732 S.W.2d 306
    , 311 (Tex.1987)). Whether
    a foreseeable risk of damage to customers' vehicles, this is
    a duty exists is a threshold inquiry and a question of law;
    no evidence that the slope posed a foreseeable risk of injury
    liability cannot be imposed if no duty exists. Van Horn v.
    to Kroger's employees. Elwood presented no evidence that
    Chambers, 
    970 S.W.2d 542
    , 544 (Tex.1998).
    his job required specialized training. See Nat'l Convenience
    
    Stores, 987 S.W.2d at 149
    . Elwood testified that, prior to
    [5]     [6]   [7]    [8]    [9]   [10] An employer has a duty
    working at Kroger, he knew it was dangerous to place his
    to use ordinary care in providing a safe workplace. Farley
    hand in a vehicle's doorjamb. Moreover, there is no evidence
    v. M M Cattle Co., 
    529 S.W.2d 751
    , 754 (Tex.1975).
    that carts with wheel locks or additional personnel were
    It must, for example, warn an employee of the hazards
    necessary to safely load groceries. See Allsup's Convenience
    of employment and provide needed safety equipment or
    
    Stores, 934 S.W.2d at 438
    .
    assistance. 
    Id. However, an
    employer is not an insurer of
    its employees' safety. Leitch v. Hornsby, 
    935 S.W.2d 114
    ,
    Kroger had no duty to warn Elwood of a danger known to
    117 (Tex.1996); Exxon Corp. v. Tidwell, 
    867 S.W.2d 19
    ,
    all and no obligation to provide training or equipment to
    21 (Tex.1993). It owes no duty to warn of hazards that are
    dissuade an employee from using a vehicle doorjamb for
    commonly known or already appreciated by the employee.
    leverage. Employers are not insurers of their employees. See
    See Nat'l Convenience *795 Stores, Inc. v. Matherne, 987
    
    Leitch, 935 S.W.2d at 117
    ; Exxon 
    Corp., 867 S.W.2d at 21
    .
    S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no
    Accordingly, without hearing oral argument, we reverse the
    pet.). It has no duty to provide equipment or assistance that
    court of appeals' judgment and render judgment for Kroger.
    is unnecessary to the job's safe performance. See Allsup's
    See TEX. R. APP. P. 59.1, 60.2(c).
    Convenience Stores, Inc. v. Warren, 
    934 S.W.2d 433
    , 438
    (Tex.App.—Amarillo 1996, writ denied). And, when an
    employee's injury results from performing the same character
    All Citations
    of work that employees in that position have always done, an
    employer is not liable if there is no evidence that the work        
    197 S.W.3d 793
    , 
    49 Tex. Sup. Ct. J. 623
    is unusually precarious. 
    Werner, 909 S.W.2d at 869
    (citing
    End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                   APPENDIX 119                3
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    had no bearing on relevance as fair and accurate depictions
    of saw at issue;
    [6] video recordings of operable and inoperable bone-in band
    saws were relevant;
    [7] video and photographic evidence were not subject to
    exclusion based on employer's unsubstantiated claim that they
    were illegally obtained; and
    [8] trial court's alleged failure to timely investigate and
    respond to juror's report to bailiff about jury misconduct
    during deliberations did not warrant new trial.
    Affirmed.
    Synopsis                                                            West Headnotes (38)
    Background: Journeyman filed suit against employer that
    was not subscriber of workers' compensation insurance for
    [1]    Trial
    negligence arising out of amputation of several fingers while
    Matters of law in general
    using bone-in band saw to cut meat. Following jury trial,
    the 129th District Court, Harris County, entered judgment on               Trial
    jury's verdict for journeyman, and denied employer's motion                     Form and Language
    for new trial. Employer appealed.                                          The parties have the right to be judged by a jury
    properly instructed in the law; therefore, the goal
    is to submit to the jury the issues for decision
    logically, simply, clearly, fairly, correctly, and
    Holdings: The Court of Appeals, J. Brett Busby, J., held that:
    completely. Tex. R. Civ. P. 278.
    [1] employer owed employee duties arising out of employer-                 Cases that cite this headnote
    employee relationship, in addition to premises liability duties,
    and thus, was subject to liability in negligence for breach of
    those duties;                                                       [2]    Trial
    Authority to instruct jury in general
    [2] employer's breach of duty to provide adequate                          Trial courts enjoy broad discretion with respect
    maintenance for band saw was proximate cause of                            to jury instructions, so long as the charge is
    journeyman's injuries;                                                     legally correct. Tex. R. Civ. P. 278.
    Cases that cite this headnote
    [3] employer's breach of its duty to provide safety regulations
    to journeymen and other meat cutters on safe operation of
    band saw was proximate cause of journeyman's injuries;              [3]    Labor and Employment
    Nature and scope of duty owed by employer
    [4] evidence supported award of $151,744 in damages for lost               Employer that elected not to subscribe
    earning capacity;                                                          to workers' compensation insurance owed
    employee duties arising out of employer-
    [5] fact that photographs of bone-in band saw that journeyman              employee relationship, in addition to premises
    was using at time of accident were taken months after accident             liability duties, and thus, was subject to liability
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 120                   1
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    in negligence for breach of those duties,                  If an employer elects to be a non-subscriber
    specifically, duty to provide employee with safe           to workers' compensation insurance, then it is
    place to work, duty to train employee in safe              subject to suits at common law for damages,
    use and handling of band saw, and duty to                  to which it can raise only limited defenses, and
    provide safety regulations related to employee's           in that situation, an employee injured on the
    job as journeyman meat cutter, which resulted in           job must file suit and prove the elements of a
    employee suffering amputation of several fingers           common law negligence claim. Tex. Labor Code
    during operation of band saw while cutting meat.           Ann. § 406.033(d).
    Tex. Labor Code Ann. § 406.033(d).
    Cases that cite this headnote
    1 Cases that cite this headnote
    [7]    Negligence
    [4]    Workers' Compensation                                          Elements in general
    Election by Employer                                    To establish negligence, a party must establish
    The Texas Workers' Compensation Act permits                a duty, a breach of that duty, and damages
    private Texas employers to elect whether to                proximately caused by the breach.
    subscribe to workers' compensation insurance.
    Tex. Labor Code Ann. § 406.002(a).                         Cases that cite this headnote
    Cases that cite this headnote
    [8]    Labor and Employment
    Nature and scope of duty owed by employer
    [5]    Workers' Compensation                                      Among the duties that an employer owes to an
    Injuries arising in course of employment in            employee are to (1) furnish a reasonably safe
    general                                                    place to work, (2) warn employees of hazards of
    Workers' Compensation                                      their employment that are not commonly known
    Exclusiveness of Remedies Afforded by                 or already appreciated, (3) supervise employees'
    Acts                                                       activities, (4) hire competent co-employees,
    If an employer elects to subscribe to workers'             (5) furnish reasonably safe instrumentalities
    compensation insurance, then its employees                 with which to work, and (6) provide safety
    generally are prohibited from suing it and                 regulations.
    must instead pursue their claims through an
    1 Cases that cite this headnote
    administrative agency, and in that administrative
    proceeding, employees need prove only that they
    were injured in the course and scope of their       [9]    Labor and Employment
    employment. Tex. Labor Code Ann. § 401.001                     Nature and scope of duty owed by employer
    et seq.                                                    An employer must train employees in the safe
    use and handling of products and equipment
    Cases that cite this headnote
    used in and around an employer's premises or
    facilities.
    [6]    Workers' Compensation
    Defenses; Abrogation or Modification of                 Cases that cite this headnote
    Common-Law Defenses
    Workers' Compensation                               [10]   Labor and Employment
    Negligence of Employer as Essential to                     Nature and Scope of Duty Owed by
    Recovery                                                   Employer
    Workers' Compensation                                      An employer must exercise ordinary care, based
    Presumptions and burden of proof                        on standard negligence principles, in carrying
    out the duties owed to its employees.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.         APPENDIX 121                2
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    Cause in fact, as an element of proximate cause,
    Cases that cite this headnote                              is not shown if the defendant's conduct did no
    more than furnish a condition that made the
    [11]   Courts                                                     injury possible.
    Highest appellate court
    Cases that cite this headnote
    Changing higher-court precedent is not the
    function of an intermediate court of appeals.
    [16]   Negligence
    Cases that cite this headnote                                  Foreseeability
    “Foreseeability,” as an element of proximate
    [12]   Negligence                                                 cause, requires that a person of ordinary
    Elements in general                                    intelligence should have anticipated the danger
    created by the negligent act or omission.
    To prevail on a negligence claim, a plaintiff
    must prove not only that the defendant breached            Cases that cite this headnote
    a duty, but also that he sustained damages
    proximately caused by that breach.
    [17]   Negligence
    Cases that cite this headnote                                  In general; degrees of proof
    Negligence
    [13]   Negligence                                                     Direct or circumstantial evidence
    Necessity of causation                                 “Cause in fact” and foreseeability, as elements
    Negligence                                                 of proximate cause, cannot be established by
    Foreseeability                                         mere conjecture, guess, or speculation; however,
    proximate cause may be established by direct
    Proximate cause consists of two elements: cause
    or circumstantial evidence and the reasonable
    in fact and foreseeability.
    inferences drawn from that evidence.
    Cases that cite this headnote
    Cases that cite this headnote
    [14]   Negligence
    [18]   Labor and Employment
    ‘But-for‘ causation; act without which
    Weight and sufficiency of evidence
    event would not have occurred
    Evidence supported finding that employer's
    Negligence
    breach of its duty to provide adequate
    Substantial factor
    maintenance for band saw used by journeyman to
    Negligence
    cut meat was proximate cause of amputation of
    Failure to Act; Omissions
    several of journeyman's fingers, in action against
    “Cause in fact,” as an element of proximate                employer that did not subscribe to workers'
    cause, means that the defendant's act or omission          compensation insurance; employee charged with
    was a substantial factor in bringing about                 maintaining and repairing saw was not certified
    the injury, which would not otherwise have                 to do so by saw manufacturer, other meat cutter
    occurred.                                                  frequently attempted to repair saw, contrary to
    employer's policy that only thing meat cutter
    Cases that cite this headnote
    should do to band saw was to change dull
    blade, blade guard was inoperable and not
    [15]   Negligence                                                 used at all, loud noise indicated improper
    Remoteness and attenuation; mere                       blade tension, which could cause blade to
    condition or occasion                                      bind into meat and cause meat to roll, several
    employees testified that blade would often pop
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.         APPENDIX 122                  3
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    off and that blades would dull very quickly,               compensation insurance, arising out of
    indicating that something was “very wrong”                 amputation of three of journeyman's fingers
    with saw, journeyman testified that blade was              while using band saw to cut meat; employer
    dull on day of injury, that he had repeatedly              began pressuring journeyman to return to
    reported issues with saw to management, that               work as early as four weeks after accident
    no action was taken, and that, although he had             and unsuccessful surgery to replace fingers,
    discretion to change out blade when he deemed              journeyman was right-handed and he lost fingers
    it necessary, management had instructed him                from his right hand, he was returned to work in
    to be conservative in using blades, as there               close proximity to band saws, despite doctor's
    was financial incentive for those managers to              concern that he should not be required to
    come under budget. Tex. Labor Code Ann. §                  work around saws, he was initially returned to
    406.033(d).                                                work on light duty but was fired for alleged
    insubordination after he refused to perform
    Cases that cite this headnote                              activity due to condition of his hand and
    informed manager of that fact, he was unable
    [19]   Labor and Employment                                       to satisfactorily perform work in two other
    Weight and sufficiency of evidence                     jobs involving manual labor, and there was
    no challenge to journeyman's expert economist
    Evidence supported finding that employer's
    quantifying journeyman's loss of past and future
    breach of its duty to provide safety regulations
    earning capacity. Tex. Labor Code Ann. §
    to journeymen and other meat cutters on safe
    406.033(d).
    operation of band saw used to cut meat was
    proximate cause of journeyman's injuries from              Cases that cite this headnote
    amputation of several fingers while using saw,
    in action against employer that did not subscribe
    to workers' compensation insurance; employee        [21]   Damages
    testified that he was not even aware of existence             Impairment of earning capacity
    of blade guard and was not using it on day                 Loss or impairment of earning capacity is a
    of injury, it was common practice of meat                  recognized element of damages in a personal
    cutters to not use blade guard, managers were              injury case.
    aware of this practice but chose to do nothing
    about it, mechanical engineering experts for both          Cases that cite this headnote
    journeyman and employer testified that band
    saw should not be used without blade guard,         [22]   Damages
    and journeyman's expert explained that accident               Necessity of proof as to damages in general
    would not have occurred, if blade guard had
    The plaintiff has the burden of proving loss of
    been used as required by operator's manual. Tex.
    earning capacity as an element of damages in a
    Labor Code Ann. § 406.033(d).
    personal injury case.
    Cases that cite this headnote
    Cases that cite this headnote
    [20]   Damages
    [23]   Damages
    Arm, hand, wrist, and shoulder injuries
    Impairment of earning capacity
    Evidence
    The measure of damages for lost earning
    Damages
    capacity in a negligence case is the plaintiff's
    Evidence supported award of $151,744                       diminished earning power or earning capacity,
    in damages for lost earning capacity,                      in the past or future, directly resulting from the
    in journeyman's negligence action against                  injuries sustained in the accident.
    employer that did not subscribe to workers'
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.         APPENDIX 123                  4
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    Cases that cite this headnote                             Cases that cite this headnote
    [24]   Damages                                            [29]   Evidence
    Impairment of earning capacity                             Photographs in general
    To support an award of damages for lost earning           Generally, pictures or photographs relevant to
    capacity, the plaintiff generally must introduce          any issue in a case are admissible.
    evidence from which a jury may reasonably
    measure in monetary terms his earning capacity            Cases that cite this headnote
    prior to injury.
    [30]   Evidence
    Cases that cite this headnote
    Photographs in general
    Evidence
    [25]   Damages                                                       Motion pictures
    Impairment of earning capacity
    When a photograph or video portrays facts
    Specific proof of actual earnings and income are          relevant to an issue, it is admissible if verified by
    evidence of lost earning capacity.                        a witness as being a correct representation of the
    facts.
    Cases that cite this headnote
    Cases that cite this headnote
    [26]   Trial
    Admission of evidence in general              [31]   Evidence
    Trial                                                          Photographs and other pictures; sound
    Exclusion of improper evidence                       records and pictures
    The decision to admit or exclude evidence lies            When a photograph or video portraying facts
    within the sound discretion of the trial court.           relevant to an issue, the witness through whom
    the photograph or video is introduced must know
    Cases that cite this headnote                             the object involved and be able to state that the
    photograph or video correctly represents it.
    [27]   Appeal and Error
    Cases that cite this headnote
    Rulings as to Evidence in General
    A party seeking to reverse a judgment based
    on evidentiary error must prove that the           [32]   Evidence
    error probably resulted in rendition of an                    Photographs in general
    improper judgment, which usually requires the             The fact that the scene or the object portrayed in
    complaining party to show that the judgment               a photograph or video offered into evidence has
    turns on the particular evidence excluded or              changed since the time of the event in question
    admitted.                                                 in the litigation does not prevent the admission
    of the photograph or video into evidence if the
    Cases that cite this headnote                             changes are explained in such a manner that
    the photograph or video will help the jury in
    [28]   Evidence                                                  understanding the nature of the condition at the
    Relevancy in general                                  time of the event at issue.
    Facts existing both before and after an event in          Cases that cite this headnote
    controversy may be relevant to establishing the
    cause of that event. Tex. R. Evid. 402.
    [33]   Evidence
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.          APPENDIX 124                   5
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    Determination of question of admissibility            time of accident and of operable band saw, which
    A dispute as to the accuracy of some part of               were offered to show employer's breach of duties
    the photograph or video usually goes only to the           to provide journeymen and meat cutters with
    weight of the evidence, not to its admissibility.          training on safe use of band saw and to maintain
    saws in safe and operable condition, were not
    Cases that cite this headnote                              subject to exclusion in trial on journeyman's
    negligence action against employer that did not
    subscribe to workers' compensation insurance
    [34]   Evidence
    arising out of amputation of several fingers while
    Determination of question of admissibility
    using saw, based on employer's claim that videos
    Fact that photographs of bone-in band saw that
    and photographs were taken illegally, absent any
    journeyman was using to cut meat at time of
    showing that journeyman had committed crimes
    accident were taken months after accident had no
    of criminal trespass or improper photography or
    bearing on relevance of photographs as fair and
    visual recording at time videos were recorded
    accurate depiction of saw, in negligence action
    and photographs were taken. Tex. Labor Code
    against employer. Tex. R. Evid. 402.
    Ann. § 406.033(d); Tex. Civ. Prac. & Rem. Code
    Cases that cite this headnote                              Ann. § 123.002; Tex. Crim. Proc. Code Ann. art.
    38.23; Tex. Penal Code Ann. §§ 21.15, 30.05.
    [35]   Workers' Compensation                                      Cases that cite this headnote
    Admissibility of evidence
    Video recording of bone-in band saw used to         [37]   New Trial
    cut meat that was making loud noise when                       Misconduct of or affecting jurors
    turned on, together with videos of saw that
    Trial court's alleged failure to timely investigate
    did not make such noise when running, and
    and respond to juror's report to bailiff about jury
    of non-operational saw for which blade had
    misconduct during deliberations, specifically,
    popped off were relevant, in journeyman's
    that attorney member of jury was offering his
    negligence action against employer that did not
    own definition of legal phrases and words based
    subscribe to workers' compensation insurance,
    on his own experience and that another juror
    arising out of amputation of several fingers on
    contributed her own thoughts based on her
    journeyman's right hand while using saw to
    experience as legal assistant, did not warrant new
    cut meat; journeyman testified that saw he was
    trial in journeyman's action against employer
    using at time of accident was making loud noise
    for negligence arising out of work-related
    similar to saw in video, and journeyman was
    amputation of fingers while using band saw
    heard in video of inoperable band saw saying
    to cut meat, where alleged misconduct did not
    “once again, the saw is broken on the same day
    involve outside influence brought to bear on jury,
    they said they fixed it,” and videos were offered
    and thus, juror was prohibited from testifying
    to prove that employer breached its duties to
    about deliberations. Tex. R. Civ. P. 327(b); Tex.
    train journeyman and meat cutters on proper
    R. Evid. 606.
    use of saw and to maintain equipment used by
    employees to perform job duties. Tex. Labor                Cases that cite this headnote
    Code Ann. § 406.033(d); Tex. R. Evid. 402.
    Cases that cite this headnote                       [38]   Appeal and Error
    Remarks and conduct of judge
    To reverse a judgment on the basis of judicial
    [36]   Evidence
    misconduct, a reviewing court must conclude
    Evidence wrongfully obtained
    both that judicial impropriety occurred and that
    Video recordings and photographs of bone-in
    the complaining party suffered harm.
    band saw used by journeyman to cut meat at
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    2015 WL 4594098
    Kroger argues in its sixth issue that the trial court abused
    Cases that cite this headnote                                its discretion when it failed to intervene to remedy alleged
    juror misconduct. We overrule this issue because, even if we
    assume the trial court had a duty to intervene and failed to do
    so, Kroger has not established that it was harmed as a result.
    On Appeal from the 129th District Court, Harris County,               We therefore affirm the trial court's judgment.
    Texas, Trial Court Cause No. 2011–44685
    Attorneys and Law Firms
    BACKGROUND
    Chance McMillan, Jason A. Gibson, Peter Michael Kelly, for
    Christopher Milanes.                                                  A. Kroger hires Milanes and trains him as a journeyman
    meat cutter.
    Brock C. Akers, for the Kroger Company.                               Milanes applied for a job at Kroger in 2007. Milanes
    went through a one-day orientation before he started work.
    Panel consists of Justices Jamison, Busby, and Brown.                 According to Milanes, the orientation did not involve safety
    training but instead covered the advantages of joining the
    union. Once Milanes started working for Kroger, he was
    OPINION                                    assigned to work in the meat department as a clerk. After
    he had been working for about a month, Kroger promoted
    J. Brett Busby, Justice
    Milanes to apprentice meat cutter. Milanes then moved from
    *1 Appellant, The Kroger Company, a non-subscriber                   store to store before eventually being assigned to the Post Oak
    to workers' compensation insurance, appeals from a final              Kroger in 2009.
    judgment in favor of appellee Christopher Milanes, a Kroger
    employee who was seriously injured while cutting meat. In its         As an apprentice meat cutter, Milanes received on-the-job
    first two issues, Kroger contends the trial court erred when it       training from a journeyman, or more experienced, meat cutter.
    submitted Milanes's claim to the jury on a general negligence         Journeyman meat cutters were supposed to train apprentices
    theory rather than a premises liability theory. We overrule           on the proper operation of the store's meat-cutting equipment,
    these issues because (1) the Supreme Court of Texas has held          including the Biro brand bone-in band saw at issue in this
    that a non-subscriber employer in Texas owes continuous,              appeal. The journeyman meat cutter was also expected to
    non-delegable duties to its employees separate and distinct           train the apprentice in the safety measures that needed to be
    from those owed to an invitee on the premises; and (2)                taken while using that equipment. Milanes eventually became
    Milanes alleged, and legally sufficient evidence showed, that         a journeyman meat cutter.
    Kroger breached those duties.
    *2 Milanes testified that he received a great deal of his meat-
    Kroger asserts in its third and fourth issues that the evidence is    cutting training from Matt Anderson, a journeyman meat
    legally and factually insufficient to support the jury's findings     cutter at the Kroger store in Montrose. While Milanes testified
    that Kroger's negligence proximately caused Milanes's injury          that he believed Anderson did a good job training him, he also
    and that he suffered past and future loss of earning capacity         testified that he was not taught by anyone at Kroger to use the
    as a result of the injury. We overrule these issues because           band saw blade guard, which both the saw manufacturer and
    the record on appeal contains legally and factually sufficient        the Occupational Safety and Health Administration (OSHA)
    evidence of both proximate cause and loss of earning                  require to be used at all times while cutting meat with the
    capacity.                                                             saw. 1 Indeed, Milanes testified that he was not even aware
    that the bone-in band saw had a blade guard; instead, he was
    In its fifth issue, Kroger contends that the trial court abused its   taught the blade guard was a guide used to line the meat up
    discretion when it admitted irrelevant photographs and videos         prior to cutting. As a result, Milanes never used the blade
    that it argues were taken illegally. We overrule this issue           guard. Milanes also testified that he was never given Kroger's
    because the photographs and videos were relevant, Milanes             Meat and Seafood Department Safety Manual or the Biro
    took them while legally on Kroger's premises, and Kroger has          band saw's operator's manual. Milanes further testified that
    not shown that he violated any law while doing so. Finally,           the bone-in saw manufacturer's warning labels were not on
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    2015 WL 4594098
    the Post Oak Kroger's saw during the time he worked at the         with the saw's blade tension. He went on to explain that if
    store.                                                             the tension is off, it can make the blade dull more quickly.
    Quinones explained that a dull blade can cause the meat to
    jerk or suck the operator's hand into the blade.
    B. Problems with Kroger's bone-in band saw were
    reported prior to the injury.                                      Like Milanes, Quinones testified that he had never seen
    Milanes and other meat cutters experienced problems with the       the operator's manual for the bone-in saw and management
    bone-in saw prior to Milanes's injury. Milanes testified that      never told him that he had to read it before operating the
    before he was injured, he reported to Kroger management:           saw. Quinones also confirmed that there were no warning
    (1) the saw squealing loudly; (2) the blades dulling very          signs or labels on the bone-in saw. Quinones never observed
    quickly, often within thirty or forty minutes of the blade being   inspectors performing regular maintenance on the saw.
    changed; (3) the saw frequently catching the meat and sucking      Instead, Kroger maintenance personnel only came out when
    it into the blade; (4) the saw being off-balance and shaking       a problem was reported. Quinones testified that he was not a
    frequently; (5) the blade wobbling; and (6) the presence of a      trained maintenance person for the bone-in saw, but Kroger
    lip on the saw table that frequently snagged the meat. Milanes     expected him to perform maintenance on the saw. Quinones
    testified that if he told Adam Bell, another journeyman meat       admitted that he had adjusted the tension on the blade and that
    cutter who also served as a relief meat market manager, about      he had also seen Bell working on the saw.
    a problem, Bell would start tinkering with the saw in an effort
    to fix the problem. Milanes saw Bell doing maintenance on           *3 Barnes confirmed many of the problems mentioned by
    the saw at least twice a week.                                     Milanes and Quinones. Barnes testified that he saw Bell
    adjusting the tension on the blade and that Bell would
    With respect to the saw blade dulling quickly, Milanes             grab pliers and attempt to fix any problem reported to him.
    admitted he had the discretion to change the blade whenever        Bames also agreed with Quinones that there was no regular
    he believed it was necessary. He went on to explain, however,      maintenance program for the store's band saws.
    that Kroger management had asked the meat cutters to be
    sparing with the blades and to make them last. The evidence        Bell testified that he experienced the blade popping off the
    also revealed that there was a financial incentive for managers    saw prior to Milanes's injury. He went on to explain that, in his
    to come in under budget. Milanes recounted an episode in           experience, the blade coming off a band saw was caused by
    which he had used so many blades on the bone-in saw that the       either (1) an accumulation of bone dust and “goop” clogging
    store's supply was exhausted, thereby angering management.
    the blade scrapers; 2 or (2) the blade tension not being set
    properly. Bell also testified that when a band saw makes a
    In addition to Milanes, several other Kroger meat cutters
    loud noise, it means something is wrong with the saw. Bell
    testified during the trial regarding the pre-accident condition
    further testified that he had never seen a complete list of steps
    of the saw and Kroger's handling of maintenance issues.
    on how to clean the bone-in saw nor had he seen the operator's
    These witnesses included William Quinones, Michael
    manual for the saw.
    Barnes, and Bell. Quinones still worked as a Kroger meat
    cutter at the time of trial. Kroger had terminated Bames prior
    Bell admitted that he was not certified by the saw
    to trial for alleged dishonesty. Bell, as mentioned above, was a
    manufacturer to do maintenance on the saw. Bell testified
    meat cutter and assistant meat market manager at the Post Oak
    that, as a journeyman meat cutter, he could change the saw's
    Kroger. All three testified that there were frequent problems
    blade and also adjust the tension of the blade but was not
    with the bone-in saw.
    authorized to do more than that. According to Bell, he took the
    saw apart to clean it, not perform maintenance on it. After he
    Among the problems Quinones reported to Kroger
    was shown a photograph that appeared to show him working
    management were (1) the blade tension was not right; (2)
    on the bone-in saw, Bell explained that a Kroger maintenance
    the blade would occasionally pop off of the saw; (3) the saw
    person had told him that there was a nut on the saw that
    table was wobbly; and (4) the blade dulled quickly, requiring
    if it became loose, it could cause the blade to get out of
    frequent blade changes. According to Quinones, management
    adjustment and possibly even pop off. Bell explained that he
    could not get the problems with the saw fixed before Milanes's
    was attempting to adjust that nut when the photograph was
    injury. Quinones also explained that a band saw making a
    loud squealing noise can indicate that there is a problem
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    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    taken. Bell then denied that he was doing anything improper        there. At the time of trial, Milanes was still experiencing pain
    when the photograph was taken.                                     severe enough that he had to take pain medication frequently.
    Bell testified that he did not recall any particular problems      Milanes reported that the loss of his fingers had adversely
    with the bone-in saw prior to Milanes's injury. In Bell's          impacted his ability to participate in physical activities such
    opinion, there would have to be something very wrong with a        as rock climbing, basketball, football, dodge ball, running
    band saw for the blades to dull within thirty to forty minutes     with his dog, and lifting weights at the gym. The injury also
    of being changed. Bell went on to state that dull blades make      affected his ability to drive his standard transmission car.
    it more likely that the meat will jump while being cut. Bell       Milanes reported that he was unemployed at the time of trial.
    also did not recall any feedback from Kroger management            Milanes testified that he had tried two different jobs after
    about changing saw blades too frequently or any request to         he was terminated by Kroger, but he had been unsuccessful
    keep costs down by not changing the blades out as often as a       because both jobs required manual dexterity. Milanes also
    meat cutter believed necessary.                                    testified that all of his prior job experience had involved
    manual labor, and he could no longer do that type of work.
    C. Milanes is seriously injured while cutting meat with            Milanes offered evidence that after the accident, he
    the saw.                                                           experienced severe anxiety, depression, insomnia, as well as
    At the time of his injury, Milanes had nearly completed his        nightmares about cutting off his fingers. Milanes twice went
    eight-hour shift. Milanes testified that even though it was the    to the hospital thinking he was experiencing a heart attack.
    end of his shift, he was not tired and was attending to the task   Doctors diagnosed both episodes as anxiety attacks, not heart
    of cutting meat just as closely as he had been at the beginning    attacks. Milanes also experienced feelings of anger because
    of his shift. Milanes also testified that he had the meat seated   the meat department personnel had complained that the bone-
    properly on the saw table prior to the injury. Milanes observed    in saw was not working properly prior to his injury. Milanes
    that the blade seemed pretty dull, but he decided not to change    eventually went to see a psychologist. Once Milanes returned
    the blade. According to Milanes, the saw was making a loud         to work at the Post Oak Kroger, he experienced anxiety
    noise that evening, and the table was still wobbly. Milanes        when he was around the meat saws. Milanes's psychologist
    also noticed that the lip was still present on the saw table.      recommended that he be kept away from the saws while he
    Milanes did not report any of these problems to management         was working.
    that evening because he had reported them previously and the
    problems were not addressed.
    D. Milanes returns to work on light duty and Kroger
    *4 Milanes was cutting a slab of meat into individual steaks      terminates his employment.
    and was about three-fourths of the way through the slab.           Milanes was earning $16.69 per hour when he was injured.
    Milanes is right-handed, and he estimated that his right hand      He returned to work several months after the accident at that
    was about six inches from the blade before the accident            same wage. Milanes was initially placed on light duty in the
    occurred. According to Milanes, the accident happened so fast      meat department when he returned to work. Milanes testified
    that he did not see exactly what happened. Milanes testified       that he had no specific job duties while on light duty and
    that he believed the dull blade caused the meat to jump, or flip   frequently spent his time doing little more than talking to
    over, pulling the fingers of his right hand into the blade.        customers. Kroger began asking Milanes to resume cutting
    meat about a month after he returned to work but while he
    The saw blade amputated parts of three fingers from                was still on light duty. Kroger made this request even though
    Milanes's right hand. Milanes was taken to the hospital,           Milanes's doctors had ordered that he not be required to cut
    where he underwent surgery to reattach the severed fingers.        meat at that point in time. Kroger asked Milanes to return to
    The surgery was unsuccessful. Milanes later underwent              meat cutting several times.
    two additional surgeries to cover exposed bone. After the
    surgeries, Milanes underwent extensive physical therapy and        Milanes was to return to full duty with no restrictions on
    testified that he continued to experience a great deal of pain     October 21, 2011. The day before, Bell, as he was leaving
    in the areas of the amputations. Milanes also testified that he    work, instructed Milanes to clean the meat department cooler.
    experienced the phantom sensation that his fingers were still      Milanes explained that an industrial hose and scalding hot
    water were used to clean the meat department cooler and
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    saws. Milanes picked up the hose and noticed that it had a           Ryan obtained a copy of the operator's manual for the type of
    leak. Milanes also saw that a new hose was laying nearby, so         bone-in saw used at the Post Oak Kroger. The manual states
    he called the store manager, William Underwood, and asked            that the saw's blade guard must be kept within one-half inch
    if Underwood could send someone to change out the hoses.             of the meat being cut. According to Ryan, if the blade guard
    Underwood told Milanes to do it himself. Milanes testified           is adjusted to within one-half inch of the meat, and the meat
    that he responded: “[C]an we have somebody else? And he              suddenly jumps or rolls, the guard will prevent the operator's
    said, no. And before I could say anything else, he started           hand from contacting the blade. The manual also requires that
    yelling and saying it's not a light duty issue. Anything—I           all warning labels be kept on the saw and replaced promptly
    didn't even say that. And I said, well, it is kind of a light duty   if any come off. The manual also provides that if the saw is
    issue. And he said I'll be back there in a minute.” Milanes          not working properly, it should be taken out of service until
    testified that he did not believe the task of changing out the       it can be repaired.
    hoses was within his job duties at that point in time. Milanes
    explained that he was still on light duty, his hand was still        Ryan inspected the bone-in saw approximately one year after
    hurting a great deal, and changing out the hose required the         Milanes's injury. Ryan discovered that most of the saw's
    person to use pliers and a wrench, tasks he did not think he         warning labels were missing. 3 Ryan also found the blade
    should do while his hand was still hurting.                          guard inoperable. He concluded the guard was frozen in
    position as a result of the accumulation of either rust or
    *5 When Underwood arrived, he asked Milanes why he                  “goop” generated by the sawing of meat. The blade guard
    could not change out the hose. Milanes responded that he             finally moved when he applied fifty pounds of pressure. Ryan
    was not going to do it. Milanes testified that he did not want       went on to testily that the guard remained very difficult to
    to say in front of other employees that he was physically            move even after he broke it free.
    unable to change out the hose, but that Underwood was
    aware he was still on light duty. When Milanes continued             Ryan took several videos during his inspection. One video
    to refuse to change out the hose, Underwood terminated               showed Bell cutting meat on the bone-in saw. Ryan observed
    him for insubordination. Milanes admitted that he never told         that Bell did not use the blade guard while cutting the meat
    Underwood in front of other people that he was physically            and that the guard was at least four inches above the level of
    unable to perform the task of changing out the hose.                 the meat throughout the video.
    Ryan opined that if the bone-in saw's blade guard was not
    E. Mechanical engineering experts testify regarding saw
    operational on the day of Milanes's injury, the saw should
    operation and maintenance and the cause of Milanes's
    not have been in service. Ryan then opined that if the saw
    injury.
    had been taken out of service, Milanes would not have been
    At trial, mechanical engineer John Ryan testified on behalf
    injured. He went on to opine that if Kroger had followed
    of Milanes. According to Ryan, OSHA standards require
    OSHA's standards and the requirements set forth in the
    an employer to provide a safe workplace. OSHA also
    operator's manual, Milanes also would not have been injured.
    has a general machine guarding standard that requires any
    hazardous point of operation to be guarded. Additionally,
    Ryan examined the saw's blade tension during his inspection.
    OSHA had specific standards for the operation of band saws
    Ryan found numerous scratch marks on the inside of the saw
    such as the bone-in saw at issue in this case. OSHA, according
    housing. Ryan explained that the scratch marks indicate the
    to Ryan, has three primary concerns with the operation of
    blade had popped off repeatedly and hit the metal housing.
    band saws. First, OSHA requires that each band saw have an
    Ryan opined that this type of contact with the metal housing
    operational blade guard. Second, OSHA emphasizes that a
    can dull the blade.
    band saw's blade tension must be properly set. Finally, OSHA
    requires employers to have a training program in place so
    *6 Ryan then explained that improper blade tension can
    that employees learn how to operate a band saw safely. Ryan
    also cause a wandering cut. According to Ryan, when a blade
    explained that blade tension is important for the safe operation
    is under-tensioned, it can cause the blade's cutting path to
    of band saws because if the tension is not set correctly, the
    wander, which can lead to force being applied to the meat
    blade can pop off the saw.
    sideways. This in turn increases the possibility that the saw
    will bind in the meat or the bone, causing the meat to be
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    thrown or to roll. Ryan added that this possibility increases if   Grubbs next covered the importance of a regular inspection
    the blade is also dull. Ryan calculated how much force this        and maintenance program for band saws. Grubbs testified it
    saw would apply to an operator's hand and found it reasonable      is vital for an employer to have this type of program in place
    that the saw could cause the meat to roll.                         because it ensures that the band saws are properly maintained.
    Grubbs agreed that it was Kroger's responsibility to keep the
    Ryan next addressed the loud screeching sound the bone-in          bone-in saw in good working order. Grubbs also opined that
    saw exhibited. Ryan opined that the noise was created by the       an important part of an inspection and maintenance program
    blade rubbing at high speed against something, possibly the        is having properly trained and qualified personnel performing
    blade scrapers. Blade scrapers are designed to remove meat         the inspections and maintenance on a band saw.
    and other debris from the blade to keep the blade clean and
    operational. Ryan testified that if the blade is rubbing against   Grubbs testified again during Kroger's case. Grubbs
    one of the blade scrapers, it can cause the blade to dull at a     discovered during his investigation that it was the Kroger
    faster rate than normal.                                           meat cutters' habit not to use the blade guard. Grubbs then
    opined that because a piece of meat may vary in its height,
    Finally, Ryan discussed Kroger's maintenance records for the       it would be unrealistic, and ridiculous, to expect the meat
    bone-in saw. Ryan asked to review all maintenance records          cutters to adjust the blade guard to within one half inch of the
    for the saw. The first maintenance record he received from         top of the meat before each cut. Grubbs then opined that the
    Kroger was dated six days after Milanes's injury. Ryan also        blade guard, even if it was nonoperational, was not a factor
    saw other post-injury records but he never received any            in Milanes's accident. Finally, Grubbs testified that during his
    maintenance records pre-dating the injury. Both Underwood,         inspection of the bone-in saw, he did not see any defects that
    the Post Oak Kroger store manager, and the primary Kroger          would explain Milanes's accident.
    employee charged with maintenance on the saw, Brent Nixon,
    confirmed the lack of any pre-injury maintenance records for
    the bone-in saw. Neither could explain the lack of records.        F. Kroger employees testify regarding saw operation and
    maintenance.
    Milanes called Kroger's mechanical engineering expert,              *7 Kroger presented the testimony of several employees
    Thomas Grubbs, to testily as an adverse witness. Grubbs            during the trial. Underwood, the top manager at the Post
    inspected the bone-in saw two years after Milanes's injury.        Oak Kroger, was one of them. Underwood initially testified
    According to Grubbs, a band saw's primary safeguard for            regarding Kroger's policies and procedures. When he was
    operator safety is an adjustable blade guard. The blade guard      shown Kroger's Meat/Seafood Department Safety Manual,
    on the bone-in saw was not operational when he inspected           Underwood could not locate the band saw maintenance and
    it, however. Grubbs testified that a band saw should not be        inspection program. Underwood then admitted that he did not
    operated if the blade guard is in the raised position.             know for sure whether Kroger had a written policy regarding
    inspection and maintenance of those saws. According to
    Grubbs also testified regarding the importance of the              Underwood, only Kroger maintenance personnel should work
    manufacturer's manual for the saw. Grubbs stated that anyone       on the band saws. Expanding on that, Underwood testified
    operating a band saw should read the operator's manual             that the only thing meat cutters are authorized to do to the
    first. He then testified that it is an employer's duty to train    saws is change the blades. If anything else needs attention,
    employees who will use a band saw based on the operator's          the meat cutter should notify store management, who would
    manual. Grubbs testified that he believed the operator's           then call in a service person.
    manual for a band saw should be followed. He then opined
    that anyone not adequately trained on the operation of a           Underwood denied being personally aware of any pre-
    band saw should not use it. Grubbs also opined that it was         injury safety complaints about the bone-in saw, including
    important for an employer using band saws to have written          complaints about the saw's blades dulling too fast.
    safety policies and procedures in place. Grubbs explained that     Underwood explained that he was not the only manager at
    written safety policies are important so employees know what       the store and the complaints could have been addressed to
    they are supposed to do, and if they have questions, they know     another manager. Underwood then testified that there should
    where to find the answers.                                         be a record of any maintenance or repairs performed on the
    store's saws. Underwood was unable to explain why there
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    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    were no maintenance records for the bone-in saw predating          been certified by Biro to perform maintenance on Biro saws.
    Milanes's injury.                                                  Nixon denied being aware of any problems with the bone-in
    saw before the accident. He also did not recall Milanes telling
    Matthew Anderson is a journeyman meat cutter and Kroger            him that the bone-in saw needed repairs that were not being
    meat market manager. Anderson worked at the Post Oak               made. Nixon also had no explanation for the lack of repair
    Kroger about a year before Milanes's accident and therefore        and maintenance records predating Milanes's injury. Nixon
    had no knowledge of the bone-in saw's condition on the day         insisted that maintenance was done on the bone-in saw prior
    of Milanes's injury. Among other subjects, Anderson testified      to Milanes's injury and that there were records of that work.
    about cutting meat with a band saw. According to Anderson,
    a blade coming off the saw is not uncommon. Anderson                *8 Nixon was the facility engineer sent by Kroger to
    had also experienced meat jumping or rolling. He explained         investigate the band saw several days after Milanes was
    that meat jumping is unpredictable but certain circumstances,      injured. Nixon testified that he checked all aspects of the saw
    such as dull blades, increase the possibility it will happen.      thoroughly, and as a final check he turned the saw on and
    Anderson testified that for a blade to dull in thirty to forty     then beat the moving band saw blade with a broom to “make
    minutes, “the saw would have to be so out of whack, [he did        sure [the blade was] not going to come off.” Nixon reported
    not] even see how you could use it.” Anderson testified that       that the only problem his investigation revealed was the lip
    if a band saw is making a loud noise, it is a sign that it needs   on the cutting table, which he repaired. Nixon testified he was
    maintenance or repair.                                             unable to find anything that would explain the accident.
    Anderson also testified regarding Kroger's policies and
    procedures regarding band saws. He admitted that he was            G. The trial court signs a final judgment based on the
    never shown the operator's manual for the bone-in saw and          jury's verdict in favor of Milanes.
    did not know whether Kroger has a policy prohibiting workers       At the conclusion of the evidence, the trial court proposed to
    from operating a meat saw without a blade guard in place.          submit the case to the jury on an ordinary negligence theory.
    Anderson went on that when he trained people to operate a          Kroger objected to the trial court's proposed jury charge and
    meat saw, he told them to use the blade guard and adjust it        argued the case should be submitted to the jury on a premises
    above the meat for safety reasons. He then admitted, however,      liability theory. The trial court overruled Kroger's objection
    that he would see people cutting meat without using the blade      and rejected its proposed premises liability question. The
    guard.                                                             jury subsequently found Kroger liable and awarded Milanes
    damages totaling $1,093,440.89. The trial court, after
    Javier Duran was the meat market manager for the Post Oak          crediting Kroger for the amount of medical expenses and
    Kroger when Milanes's injury occurred. Duran testified that        wages it had already paid, signed a final judgment awarding
    he was taught to use the blade guard during his training. Duran    Milanes $1,016,809.10 plus pre-judgment and post-judgment
    then admitted that the blade guard was not really used by the      interest. This appeal followed.
    meat cutters at the Post Oak Kroger but was just left in the
    same position. Duran denied that Milanes ever complained
    to him about the bone-in saw not working properly or about                                  ANALYSIS
    the blades dulling too fast. He also denied telling Milanes
    to be conservative when changing blades. Duran admitted            I. The jury was properly charged on a negligence theory
    that meat jumps occasionally while it is being cut. According      of liability.
    to Duran, meat jumping is generally unpredictable, but dull        Kroger argues in its first two issues that the trial court erred
    blades make it more likely to occur. Duran went on to explain      when it submitted the case to the jury under a negligence
    that a meat cutter should change the blade before it gets so       theory of liability. According to Kroger, it is “well-settled
    dull that it will lead to meat jumping.                            that to state a general negligence claim [against a landowner],
    there must be affirmative contemporaneous conduct by the
    Brent Nixon was the primary Kroger facility engineer               owner at the time of the incident which led to the plaintiff's
    responsible for maintenance at the Post Oak Kroger at              injury.” Kroger contends that regardless of the theory of
    the time Milanes was injured. Nixon's duties included              liability Milanes pled, Texas law and the evidence introduced
    maintenance on the Biro band saw even though he had not            at trial established that the only duty it owed Milanes was
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    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    that of a premises owner. As a result, Kroger argues Milanes    of a common law negligence claim.” 
    Id. (citing Tex.
    Lab.
    was limited to a premises liability theory of recovery. Given   Code Ann. § 406.033(d)); Amigos Meat Distributors, L.P.
    that Milanes did not submit such a theory to the jury, Kroger   v. Elizondo, No. 01–10–00867–CV, 
    2011 WL 5026227
    , at
    concludes it is entitled to a take-nothing judgment. We         *2 (Tex.App.–Houston [1st Dist.] Oct. 20, 2011, no pet)
    disagree because under supreme court precedent, Kroger also     (mem.op.). To establish negligence, a party must establish a
    owed Milanes duties of care as his employer.                    duty, a breach of that duty, and damages proximately caused
    by the breach. Austin v. Kroger Texas, L.P., No. 14–0216,
    ––– S.W.3d ––––, ––––, 
    2015 WL 3641066
    , at *12 (Tex.
    A. Standard of review                                           June 12, 2015); Kroger Co. v. Elwood, 
    197 S.W.3d 793
    , 794
    [1] [2] A trial court must submit in its charge to the jury (Tex.2006).
    all questions, instructions, and definitions that are raised by
    the pleadings and the evidence. SeeTex. R. Civ. P. 278; E.I.     [8] [9] [10] The supreme court has held that employers
    DuPont de Nemours & Co. v. Roye, 
    447 S.W.3d 48
    , 56              in Texas owe certain continuous, non-delegable duties to
    (Tex.App.–Houston [14th Dist.] 2014, pet. dism'd) (citing       their employees. Farley v. MM Cattle Co., 
    529 S.W.2d 751
    ,
    Hyundai Motor Co. v. Rodriguez, 
    995 S.W.2d 661
    , 663–64          754 (Tex.1975) (abrogated on other grounds byParker v.
    (Tex.1999)). The parties have the right to be judged by a       Highland Park, Inc., 
    565 S.W.2d 512
    (Tex.1978)); seeAustin,
    jury properly instructed in the law. Crown Life Ins. Co. v.     ––– S.W.3d at ––––, 
    2015 WL 3641066
    , at *15 (stating
    Casteel, 
    22 S.W.3d 378
    , 388 (Tex.2000). The goal therefore,     that employer may owe duties to employee in addition to
    is to submit to the jury the issues for decision logically,     those a landowner owes an invitee, including duties to train
    simply, clearly, fairly, correctly, and completely. Roye, 447   and supervise). Among these are the duties to (1) furnish
    S.W.3d at 56. To achieve this goal, trial courts enjoy broad    a reasonably safe place to work, (2) warn employees of
    discretion so long as the charge is legally correct. 
    Id. We hazards
    of their employment that are not commonly known
    review whether a challenged portion of a jury charge is legally or already appreciated, (3) supervise employees' activities,
    correct using a de novo standard of review. 
    Id. (citing St.
        (4) hire competent co-employees, (5) furnish reasonably safe
    Joseph Hosp. v. Wolff, 
    94 S.W.3d 513
    , 525 (Tex.2002)). In       instrumentalities with which to work, and (6) provide safety
    making this determination, we examine the allegations and       regulations. Cent. Ready Mix Concrete Co. v. Islas, 228
    proof introduced at trial. Oncor Electric Delivery Co., LLC v.  S.W.3d 649, 652 & n. 10 (Tex.2007); Farley, 529 S.W.2d at
    Murillo, 
    449 S.W.3d 583
    , 592 (Tex.App.–Houston [1st Dist.]      754. An employer must also train employees in the safe use
    2014, pet. filed) (en banc).                                    and handling of products and equipment used in and around
    an employer's premises or facilities. Austin, ––– S.W.3d at
    ––––, 
    2015 WL 3641066
    , at *15; Aleman v. Ben E. Keith Co.,
    B. The pleadings and evidence support the trial court's
    
    227 S.W.3d 304
    , 311 (Tex.App.–Houston [1st Dist.] 2007,
    submission of the negligence theory rather than a
    no pet.). An employer must exercise ordinary care, based on
    premises theory.
    standard negligence principles, in carrying out these duties.
    *9 [3] [4] [5] The Texas Workers' Compensation Act
    Leitch v. Hornsby, 
    935 S.W.2d 114
    , 117 (Tex.1996); Werner
    permits private Texas employers to elect whether to subscribe
    v. Colwell, 
    909 S.W.2d 866
    , 869 (Tex.1995); seeElwood, 197
    to workers' compensation insurance. Tex. W. Oaks Hosp.,
    S.W.3d at 794 (“An employer has a duty to use ordinary care
    L.P. v. Williams, 
    371 S.W.3d 171
    , 186 (Tex.2012) (citing
    in providing a safe workplace.”).
    Tex. Lab. Code Ann. § 406.002(a) (West 2015)). If an
    employer elects to subscribe, then its employees generally are
    Milanes alleged and presented evidence during trial that
    prohibited from suing it and must instead pursue their claims
    Kroger breached some of these duties. This evidence
    through an administrative agency. 
    Id. In that
    administrative
    includes, but is not limited to: the failure to provide
    proceeding, employees need prove only that they were injured
    reasonably safe equipment or instrumentalities necessary for
    in the course and scope of their employment. 
    Id. the performance
    of Milanes's job; the failure to provide
    safety regulations related to Milanes's work; and the failure
    [6]    [7] If an employer elects to be a non-subscriber to
    to instruct or train employees in the safe use and handling
    workers' compensation insurance, as Kroger has, then it is
    of equipment—specifically, the Biro band saw. SeeAustin,
    subject to suits at common law for damages, to which it can
    ––– S.W.3d at ––––, 
    2015 WL 3641066
    , at *15. Milanes
    raise only limited defenses. 
    Id. In that
    situation, an employee
    testified that he was never provided the operator's manual for
    injured on the job must file suit and “prove the elements
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    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    the Biro saw and he was not trained to use the adjustable            In its third issue, Kroger attacks the legal and factual
    blade guard on the saw while cutting meat. In fact, he testified     sufficiency of the evidence of causation. In its fourth issue,
    he was not even aware that the saw was equipped with a               Kroger contends Milanes introduced legally and factually
    blade guard at all. In addition, both expert witnesses testified     insufficient evidence that his earning capacity was negatively
    that the band saw should not be operated when the blade              impacted by his injury. We address each contention in turn.
    guard is not used or operational. The evidence also includes
    testimony from several witnesses that, prior to Milanes's
    injury: (1) the bone-in saw had an inoperable blade guard;           A. Standard of review
    (2) the saw was experiencing continuing problems such as              *11 When an appellant attacks the legal sufficiency of an
    rapidly dulling blades and improper blade tension; and (3)           adverse finding on an issue on which it did not have the
    Kroger was unable to fix the problems yet did not take the           burden of proof, the appellant must demonstrate on appeal
    saw out of operation. Because Milanes pled and introduced            that there is no evidence to support the adverse finding.
    legally sufficient evidence demonstrating Kroger negligently         Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC,
    breached duties it owed to him as an employee, we conclude           
    403 S.W.3d 547
    , 550 (Tex.App.–Houston [14th Dist.] 2013,
    that the trial court did not err when it submitted the negligence    no pet.). In conducting a legal sufficiency review, we must
    theory of liability to the jury. Seeid. ––––, 
    2015 WL 3641066
    ,       consider the evidence in the light most favorable to the
    at *16 (“We therefore reject Kroger's argument that its lack of      appealed finding and indulge every reasonable inference
    any negligent activity contemporaneous with [the plaintiff's         that supports it. 
    Id. at 550–51
    (citing City of Keller v.
    injury] defeats [the plaintiff's] instrumentalities claim as a       Wilson, 
    168 S.W.3d 802
    , 821–22 (Tex.2005)). The evidence
    matter of law.”); see alsoAmigos Meat Distributors, L.P.,            is legally sufficient if it would enable reasonable and fair-
    
    2011 WL 5026227
    , at *3 (affirming judgment signed after              minded people to reach the decision under review. 
    Id. at 551.
    jury found non-subscribing employer negligent based on               This Court must credit favorable evidence if a reasonable
    evidence that employer failed to provide operator's manual           trier of fact could, and disregard contrary evidence unless a
    for Biro band saw to employee meat cutter and also failed to         reasonable trier of fact could not. 
    Id. The trier
    of fact is the
    train employee adequately on safe operation of saw).                 sole judge of the witnesses' credibility and the weight to be
    given their testimony. 
    Id. *10 [11]
    The cases that Kroger cites in urging that
    its only duty to Milanes was that of a premises owner                This Court may sustain a legal sufficiency (or no evidence)
    do not change this analysis. Most of Kroger's cases are              issue only if the record reveals one of the following: (1) the
    distinguishable because they did not involve the employer/           complete absence of evidence of a vital fact; (2) the court is
    barred by rules of law or evidence from giving weight to the
    employee relationship. 4 The remainder of Kroger's cases
    only evidence offered to prove a vital fact; (3) the evidence
    involved employees injured by a premises condition or by
    offered to prove a vital fact is no more than a scintilla; or (4)
    conduct of a third party, neither of which is at issue. 5 Thus, as   the evidence established conclusively the opposite of the vital
    Kroger conceded at oral argument, none of these cases control        fact. 
    Id. Evidence that
    is so weak as to do no more than create
    the outcome here. 6                                                  a mere surmise or suspicion that the fact exists is less than a
    scintilla. 
    Id. The supreme
    court recently confirmed that, “[a]s [plaintiff's]
    employer, Kroger owed [him] duties in addition to its                In reviewing the factual sufficiency of the evidence, we must
    premises-liability duty and its duty not to engage in negligent      examine the entire record, considering both the evidence
    activities, including the duty to provide [the plaintiff] with       in favor of, and contrary to, the challenged findings.
    necessary instrumentalities.” Austin, ––– S.W.3d at ––––,            SeeMaritime Overseas Corp. v. Ellis, 
    971 S.W.2d 402
    ,
    
    2015 WL 3641066
    , at *15. We therefore overrule Kroger's              406–07 (Tex.1998); Cain v. Bain, 
    709 S.W.2d 175
    , 176
    first two issues on appeal.                                          (Tex.1986). When a party challenges the factual sufficiency
    of the evidence supporting a finding for which it did not have
    the burden of proof, we may set aside the verdict only if it
    II. Milanes introduced legally and factually sufficient              is so contrary to the overwhelming weight of the evidence
    evidence that Kroger's negligence proximately caused                 as to be clearly wrong and unjust. SeeEllis, 971 S.W.2d at
    Milanes's injuries and that he suffered lost earning                 407; Barnhart v. Morales, 
    459 S.W.3d 733
    , 745 (Tex.App.–
    capacity as a result of those injuries.                              Houston [14th Dist.] 2015, no pet.). The amount of evidence
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    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    necessary to affirm is far less than the amount necessary          the primary Kroger employee charged with maintaining and
    to reverse a judgment. 
    Barnhart, 459 S.W.3d at 745
    . This           repairing the store's bone-in band saw, was not certified
    Court is not a factfinder. 
    Id. (citing Ellis,
    971 S.W.2d at        by the saw's manufacturer. The jury also heard evidence
    407). Instead, the jury is the sole judge of the credibility of    that Bell, a meat cutter and relief meat market manager,
    the witnesses and the weight to be given their testimony. 
    Id. frequently attempted
    to repair the saw when employees
    We may not, therefore, pass upon the witnesses' credibility        reported problems to him despite Kroger's stated policy
    or substitute our judgment for that of the jury, even if the       that the only thing meat cutters should do to a band saw
    evidence would also support a different result. 
    Id. If we
             was change out a dull blade. Other evidence of improper
    determine the evidence is factually insufficient, we must          maintenance includes the lack of maintenance records and
    detail the evidence relevant to the issue and state in what        the meat cutters' testimony that problems with the saw were
    regard the contrary evidence greatly outweighs the evidence        reported but never fixed.
    in support of the verdict; we need not do so when affirming a
    jury's verdict. 
    Id. (citing Gonzalez
    v. McAllen Med. Ctr., Inc.,
    Evidence of improper maintenance also included that the
    
    195 S.W.3d 680
    , 681 (Tex.2006) (per curiam)).                 blade guard on the saw was inoperable and a loud noise
    emanated from the saw. Witnesses testified the noise could
    be caused by the blade hitting the blade scrapers or by
    B. Sufficient evidence supports the jury's finding that       incorrect blade tension. Numerous witnesses testified that
    Kroger's negligence proximately caused Milanes's              improper blade tension was a frequent problem encountered
    injury.                                                       while using the bone-in saw. Ryan, Milanes's mechanical
    [12] [13] To prevail on a negligence claim, a plaintiff must engineering expert, testified that improper blade tension can
    prove not only that the defendant breached a duty, but also   cause a wandering cut, increasing the possibility that the blade
    that he sustained damages proximately caused by that breach.  will bind in the meat and cause the meat to roll.
    Torres v. Tessier, 
    231 S.W.3d 60
    , 63 (Tex.App.–Houston
    [14th Dist.] 2007, no pet.)(citing D. Houston, Inc. v. Love,  Evidence showed that if the tension on the blade is incorrect,
    
    92 S.W.3d 450
    , 454 (Tex.2002)). Proximate cause consists      it can cause the blade to pop off, resulting in the blade
    of two elements: cause in fact and foreseeability. Del Lago   hitting the metal saw housing. Witnesses testified that they
    Partners, 
    Inc., 307 S.W.3d at 774
    .                            had experienced the blade popping off this saw, as confirmed
    by scratch marks on the inside of the housing. Ryan testified
    [14]    [15]      [16]    [17] Cause in fact means that thethat frequent contact with the metal saw housing results in the
    defendant's act or omission was a substantial factor in        rapid dulling of the saw's blade. Witnesses also testified that
    bringing about the injury, which would not otherwise have      the bone-in saw's blade dulled at a very rapid rate, often within
    occurred. Western Investments, Inc. v. Urena, 162 S.W.3d       thirty to forty minutes of putting on a new blade. Kroger
    547, 551 (Tex.2005). Cause in fact is not shown if the         witnesses confirmed that if the blades were dulling at such a
    defendant's conduct did no more than furnish a condition       fast pace, something was very wrong with the saw.
    that made the injury possible. 
    Id. The second
    element of
    proximate cause, foreseeability, requires that a person of     Every meat cutter who testified during the trial agreed that
    ordinary intelligence should have anticipated the danger       meat sometimes jumps or rolls when it is being cut, and that
    created by the negligent act or omission. Doe v. Boys Clubs of it is normally unpredictable when jumping or rolling will
    Greater Dallas, Inc., 
    907 S.W.2d 472
    , 478 (Tex.1995). These    happen. Several testified, however, that the probability of
    elements cannot be established by mere conjecture, guess,      meat jumping or rolling increases when the saw's blade is dull.
    or speculation. 
    Id. at 477.
    Proximate cause may, however,      Milanes himself testified he reported to Kroger management
    be established by direct or circumstantial evidence and the    that the saw was frequently catching the meat and sucking it
    reasonable inferences drawn from that evidence. Pilgrim's      into the blade. He also testified that he noticed the blade was
    Pride Corp. v. Smoak, 
    134 S.W.3d 880
    , 889 (Tex.App.–           dull the day of his injury. Although Milanes had the discretion
    Texarkana 2004, pet. denied) (citing McClure v. Allied Stores  to change out a dull blade when he deemed it necessary,
    of Texas, Inc., 
    608 S.W.2d 901
    , 903 (Tex.1980)).               he testified that he was encouraged by store managers to be
    conservative when using blades and that there was a financial
    *12 [18] As detailed in the background section, Milanes
    incentive for those managers to come in under budget. 7
    introduced evidence that Kroger failed to maintain the Biro
    band saw properly. This includes evidence that Brent Nixon,
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    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    [19] Apart from improper maintenance and problems with            in the accident. 
    Id. To support
    an award of damages for
    blade tension and dulling, there was also evidence that Kroger     lost earning capacity, the plaintiff generally must introduce
    failed to provide safety regulations and train Milanes and         evidence from which a jury may reasonably measure in
    other employees properly on the safe operation of the Biro         monetary terms his earning capacity prior to injury. 
    Id. at band
    saw—particularly that the blade guard should be used at       435–436. Specific proof of actual earnings and income are
    all times. Milanes testified that he was not even aware of the     evidence of lost earning capacity. 
    Id. at 436.
    existence of a blade guard and was not using it on the day of
    his injury. There was also evidence that (1) it was the common     The jury heard evidence regarding Kroger's treatment of
    practice of Kroger's meat cutters to not use the blade guard,      Milanes after his injury. This includes testimony that as soon
    and (2) Kroger managers were aware of this practice but chose      as four weeks after his accident, Kroger began pressuring
    to do nothing about it. Both expert witnesses testified that a     Milanes to return to work. The record also contains evidence
    band saw should not be used without the blade guard. Ryan          that once Milanes returned, he was put back to work in
    explained that the accident would not have occurred, and           the meat department in close proximity to the department's
    Milanes would not have been injured, if the blade guard had        band saws despite his doctors' concerns that he should not
    been used as required by the operator's manual.                    be required to work around the bone-in saw. The jury also
    heard Underwood's testimony that Milanes could possibly
    *13 For these reasons, we conclude there is legally and           transfer out of the meat department, but his pay rate would
    factually sufficient evidence that Kroger's breach of the duties   be different if he did so. There was also evidence that once
    to provide safe equipment and safety regulations and to train      Milanes returned to work on light duty, he had no specific job
    employees in the safe use of equipment proximately caused          duties, but instead did little more than talk to customers.
    Milanes's injury. We overrule Kroger's third issue on appeal.
    The jury heard the testimony addressing Milanes's
    termination, including Underwood's testimony that Milanes
    C. Sufficient evidence shows that Milanes lost earning             was fired for insubordination when he refused to carry out
    capacity as a result of his injury.                                an order to change the meat department hose. They also
    [20] In its third issue, Kroger contends Milanes presented heard Milanes's testimony that he was still on light duty and
    legally and factually insufficient evidence of lost earning        experiencing pain in his right hand at that time. Although
    capacity resulting from the amputation of three fingers on his     Milanes admitted that he did not tell Underwood that he was
    dominant right hand while he was cutting meat with Kroger's        physically incapable of doing the task, he did tell Underwood
    bone-in saw. In making this argument, Kroger points out that       that his refusal was a light duty issue. As the trier of fact
    Milanes returned to work at the same Kroger store following        and sole judge of the credibility of the witnesses, the jury
    his injury at the same rate of pay. It goes on to argue that       could have disbelieved Underwood's testimony that Milanes
    the only reason he lost this job was the result of his own         was fired for insubordination, believed that Milanes refused
    insubordination, and thus there is no evidence of lost earning     to change out the hose due to the condition of his injured
    capacity as a result of his injury. Kroger makes no other          hand and sufficiently informed Underwood of that fact, and
    argument about the insufficiency of the evidence supporting        found that the termination was related to Milanes's injury.
    the jury's award of $151,744 in damages for lost earning           Kroger has not briefed any challenge to Milanes's testimony
    capacity.                                                          regarding his post-termination inability to secure other long-
    term employment due to his injury, nor has it challenged
    [21] [22] [23] [24] [25] Loss or impairment of earning            the testimony of Milanes's expert economist quantifying
    capacity is a recognized element of damages in a personal
    Milanes's loss of past and future earning capacity. 8
    injury case. Strauss v. Cont'l Airlines, Inc., 
    67 S.W.3d 428
    ,
    435 (Tex.App.–Houston [14th Dist.] 2002, no pet.). Earning
    *14 We hold there is legally and factually sufficient
    capacity has been defined as the ability and the fitness to
    evidence supporting the jury's finding that Milanes's loss of
    work in gainful employment for any type of compensation,
    earning capacity resulted from his work-related injury. We
    including salary, commissions, and other benefits. 
    Id. at 435
                                                                       overrule Kroger's fourth issue on appeal.
    n. 2. The plaintiff has the burden of proving loss of earning
    capacity. 
    Id. The measure
    of this type of damage is the
    plaintiff's diminished earning power or earning capacity, in
    the past or future, directly resulting from the injuries sustained
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                APPENDIX 135 16
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    Milanes was injured. We address Kroger's second contention
    III. The trial court did not abuse its discretion when               first.
    it admitted Milanes's post-accident photographs and
    videos into evidence.
    Kroger asserts in its fifth issue that the trial court abused its    1. The challenged photographs and videos were relevant.
    discretion when it admitted into evidence five photographs            *15 [28] Relevant evidence is evidence that has a tendency
    (Plaintiff's Exhibits 5, 6, and 7) and three videos (Plaintiff's     to make the existence of any fact that is of consequence
    Exhibits 10, 12, and 13) taken by Milanes after he returned          to the determination of the action more probable or less
    to work. 9 According to Kroger, the trial court should have          probable than it would be without the evidence. Tex. R. Evid.
    excluded the photographs and videos because they were taken          401. Relevant evidence is generally admissible, irrelevant
    illegally and also because they were not relevant given that         evidence is generally inadmissible. 
    Id. at 402.
    Facts existing
    all were taken after the accident.                                   both before and after an event in controversy may be relevant
    to establishing the cause of that event. City of Houston v.
    Leach, 
    819 S.W.2d 185
    , 191 (Tex.App.–Houston [14th Dist.]
    A. Standard of review                                                1991, no writ).
    [26] The decision to admit or exclude evidence lies within
    the sound discretion of the trial court. Bay Area Healthcare          [29]      [30]    [31]     [32]     [33] Generally, pictures or
    Grp., Ltd. v. McShane, 
    239 S.W.3d 231
    , 234 (Tex.2007). A             photographs relevant to any issue in a case are admissible.
    trial court exceeds its discretion if it acts in an arbitrary or     Huckaby v. A.G. Perry & Sons, Inc., 
    20 S.W.3d 194
    , 209
    unreasonable manner or without reference to guiding rules            (Tex.App.–Texarkana 2000, pet. denied). When a photograph
    or principles. 
    Barnhart, 459 S.W.3d at 742
    (citing Bowie             or video portrays facts relevant to an issue, it is admissible
    Mem'l Hosp. v. Wright, 
    79 S.W.3d 48
    , 52 (Tex.2002)). When            if verified by a witness as being a correct representation of
    reviewing matters committed to the trial court's discretion, a       the facts. Cheek v. Zalta, 
    693 S.W.2d 632
    , 635 (Tex.App.–
    reviewing court may not substitute its own judgment for that         Houston [14th Dist.] 1985, no writ). The verifying witness
    of the trial court. 
    Id. Thus, the
    question is not whether this       must know the object involved and be able to state that the
    court would have admitted the evidence. Rather, an appellate         photograph or video correctly represents it. 
    Id. The fact
    that
    court will uphold the trial court's evidentiary ruling if there is   the scene or the object portrayed in the photograph or video
    any legitimate basis for the ruling, even if that ground was not     has changed since the time of the event in question in the
    raised in the trial court. 
    Id. Therefore, we
    examine all bases       litigation does not prevent the admission of the photograph
    for the trial court's decision that are suggested by the record      or video into evidence if the changes are explained in such
    or urged by the parties. 
    Id. a manner
    that the photograph or video will help the jury in
    understanding the nature of the condition at the time of the
    [27] A party seeking to reverse a judgment based on                 event at issue. 
    Id. Indeed, the
    parties' experts inspected the
    evidentiary error must prove that the error probably resulted        saw well after Milanes took the challenged photos and videos,
    in rendition of an improper judgment, which usually requires         and photos and videos from expert Ryan's inspection were
    the complaining party to show that the judgment turns on the         also introduced into evidence. A dispute as to the accuracy of
    particular evidence excluded or admitted. 
    Id. To determine
              some part of the photograph or video usually goes only to the
    whether evidentiary error probably resulted in the rendition of      weight of the evidence, not to its admissibility. See id.; see
    an improper judgment, an appellate court reviews the entire          alsoGarza v. Cole, 
    753 S.W.2d 245
    247 (Tex.App.–Houston
    record. 
    Id. (citing Interstate
    Northborough P'ship v. State, 66      [14th Dist.] 1987, writ ref'd n.r.e.) (stating that conditions
    S.W.3d 213, 220 (Tex.2001)).                                         shown in video need not be identical to those at time of event
    in question for video to be admissible into evidence).
    B. Kroger has not shown an abuse of discretion in                     [34] Plaintiff's Exhibit 5 is a photograph of the Post Oak
    admitting the challenged photographs and videos.                     Kroger's bone-in saw wrapped in clear plastic. Plaintiff's
    Kroger makes two separate arguments in its fifth issue. First,       Exhibit 6 contains three photographs of the blade cleaners on
    it asserts that the challenged photographs and videos should         the same bone-in saw. William Quintero, a journeyman meat
    have been excluded because they were obtained by illegal             cutter at the Post Oak Kroger, testified that these photographs
    means. Second, Kroger contends the photographs and videos            fairly and accurately depicted the bone-in saw Milanes was
    were not relevant because they were taken months after               using. Plaintiff's Exhibit 7 is another photograph of the Post
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                  APPENDIX 136 17
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    Oak Kroger's bone-in saw. Milanes testified that he took          obtained” objection and admitted the challenged photographs
    the photograph and that it fairly and accurately depicted the     and videos into evidence. Having rejected each argument
    bone-in saw he used. Because witnesses testified that the         raised by Kroger in its fifth issue, we overrule that issue.
    challenged photographs accurately depicted the bone-in saw,
    we conclude that the trial court did not abuse its discretion
    when it overruled Kroger's relevance objections and admitted      IV. Kroger has not shown that it was harmed by the trial
    Exhibits 5, 6, and 7 into evidence. SeeCheek, 693 S.W.2d at       court's alleged failure to intervene to remedy perceived
    635.                                                              juror misconduct.
    [37] In its sixth issue, Kroger contends the trial court abused
    [35] Plaintiff's Exhibit 10 is a 28–second video showing the     its discretion when it refused to grant Kroger a new trial based
    bone-in saw running with a loud noise emanating from it.          on the allegation that the trial court failed to intervene timely
    Milanes testified that Exhibit 10 portrayed the bone-in saw       to correct potential juror misconduct. We conclude Kroger is
    and that the noise heard on the video was the same as the         not entitled to a new trial because it has not demonstrated it
    noise the saw was making when he was injured. Plaintiff's         was harmed as a result of any alleged failure to intervene by
    Exhibit 12 is another brief video. Milanes, who took the          the trial court.
    video, testified that it showed a boneless band saw at the
    Post Oak Kroger, which was running correctly. The saw             Kroger's motion for new trial attached an affidavit from one
    shown in Exhibit 12 did not emit a loud noise while it was        of the jurors in the case. In the affidavit, the complaining
    running. Plaintiff's Exhibit 13 is a 14–second video of a non-    juror stated that after the jury began its deliberations, she
    operational bone-in saw at the Post Oak Kroger. The video         came to believe that some other members of the jury were
    shows that the blade had popped off the saw. On the video,        violating instructions contained in the court's charge. The
    Milanes says: “once again the saw is broken in the same           complaining juror alleged that, during the jury's deliberations,
    day they said they fixed it.” Milanes testified that the videos   an attorney member of the jury offered his own definitions
    portrayed the same circumstances that were present before         of legal phrases and words derived from his own personal
    he was injured and they would be helpful to the jury during       experience as an attorney. The complaining juror also alleged
    his testimony. We conclude that the trial court did not abuse     that a second juror contributed her thoughts based on her
    its discretion when it overruled Kroger's relevance objections    personal experience as a legal assistant. The complaining
    and admitted the three videos into evidence. SeeCheek, 693        juror did not allege that any outside influence was brought to
    S.W.2d at 635.                                                    bear on the jurors during their deliberations. The complaining
    juror stated that she asked, through the bailiff, to speak with
    the trial judge about her concerns; however, the trial judge
    2. The challenged photographs and videos were not                 did not speak with the juror during the remainder of the jury's
    illegally obtained.                                               deliberations.
    *16 [36] Kroger also objected to the admission of the
    photographs and videos based on its contention that they were     The jury reached and delivered its 10–2 verdict in favor
    all taken illegally. Kroger cites no authority supporting its     of Milanes. The complaining juror, believing that the
    position. Cf.Tex. Civ. Prac. & Rem. Code Ann. § 123.002           misconduct she perceived had impacted the jury's verdict,
    (West 2011) (creating a civil cause of action against a person    alleged that she again asked to speak with the trial judge.
    who intercepts another person's communication); Tex. Code         According to the complaining juror, the trial judge was in
    Crim. Proc. Ann. art. 38.23 (West 2005) (providing that no        court at the time, and the juror was told she could wait until
    evidence obtained in violation of either the constitution or      he was finished to speak with him. The complaining juror
    laws of the United States or the State of Texas “shall be         decided to leave the courthouse before the trial judge was able
    admitted in evidence against the accused on the trial of any      to speak with her, however.
    criminal case.”). Further, we find nothing in the record to
    suggest that Milanes committed either the offense of criminal     During the hearing on Kroger's motion for new trial, the
    trespass, Tex. Penal Code Ann. § 30.05 (West Supp.2014),          trial judge stated that he had addressed with the parties a
    or the offense of improper photography or visual recording.       prior complaint made by this juror following jury selection,
    
    Id. § 21.15
    (West 2011). We hold that the trial court did         but that he was not provided notice of the juror's alleged
    not abuse its discretion when it overruled Kroger's “illegally    request during deliberations. The trial judge found the juror's
    allegations not credible and denied the motion for new trial.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 137 18
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    (prohibiting a juror from testifying about jury's deliberations
    unless allegation involves outside influence). Kroger admits
    [38] Kroger argues it is entitled to a new trial based on
    there was no outside influence brought to bear on the jury.
    judicial misconduct: specifically, the trial court's failure to
    investigate the complaining juror's allegations that members
    Instead, Kroger argues that certain jurors violated the trial
    of the jury had violated the trial court's instructions during
    court's instructions during the jury's internal deliberations.
    their deliberations. To reverse a judgment on the basis of
    To substantiate this claim, Kroger offers only the affidavit
    judicial misconduct, a reviewing court must conclude both
    testimony of a member of the jury regarding deliberations
    that judicial impropriety occurred and that the complaining
    party suffered harm. SeeSilcott v. Oglesby, 
    721 S.W.2d 290
    ,           —evidence that Kroger is prohibited from using. 10 See
    293 (Tex.1986); Markowitz v. Markowitz, 
    118 S.W.3d 82
    , 86             
    id. Because we
    (like the trial court) cannot consider the
    (Tex.App.–Houston [14th Dist.] 2003, pet. denied). Because            only evidence offered by Kroger to establish it was harmed
    we conclude that Kroger has not shown it was harmed as a              by the judge's alleged misconduct in failing to address the
    result of the trial court's alleged failure to intervene to correct   jurors' perceived violations during deliberations, we conclude
    the perceived juror misconduct, we need not decide whether            Kroger has failed to show harm. Golden Eagle Archery, Inc.
    any judicial impropriety occurred, and we therefore express           v. Jackson, 
    24 S.W.3d 362
    , 370 (Tex.2000) (holding that rules
    no view on that issue.                                                prevent juror from testifying that jury discussed improper
    matters during deliberations). Thus, the trial court did not
    *17 Given that the complaining juror's allegations did not           abuse its discretion in denying Kroger's motion for new trial.
    involve outside influence, Kroger's attempt to show harm              We overrule Kroger's sixth issue.
    through an examination of the jury's discussions during its
    deliberations is prohibited by both Rule 327(b) of the Texas
    Rules of Civil Procedure and Rule 606 of the Texas Rules                                    CONCLUSION
    of Evidence. SeeTex. R. Civ. P. 327(b) (“A juror may not
    testify as to any matter or statement occurring during the            Having overruled each of the issues Kroger raised in this
    course of the jury's deliberations or to the effect of anything       appeal, we affirm the trial court's judgment.
    upon his or any other juror's mind or emotions as influencing
    him to assent or dissent from the verdict concerning his
    mental processes in connection therewith, except that a juror         All Citations
    may testily whether any outside influence was improperly
    --- S.W.3d ----, 
    2015 WL 4594098
    brought to bear upon any juror.”); Tex. R. Evid. 606(b)
    Footnotes
    1       Milanes testified that he did not learn that the band saw was equipped with a blade guard until after his injury. Evidence
    showed that a meat cutter was required to keep the blade guard set to one-half inch above the level of the meat being
    cut at all times.
    2       There are two sets of blade scrapers on the bone-in saw, one above the cutting table and one below. Each set consists
    of two pieces of metal attached to the saw housing, one on either side of the revolving blade. The blade scrapers are
    designed to remove from the blade material created by the cutting of the meat. Bell admitted that the blade scrapers had
    never been changed during his time at the Post Oak Kroger.
    3       Ryan explained that he found a couple of warnings still attached to the motor.
    4       See, e.g.,Del Lago Partners, Inc. v. Smith, 
    307 S.W.3d 762
    , 767 (Tex.2010) (involving suit filed by hotel guest, not
    employee); In re Texas Dept. of Transp., 
    218 S.W.3d 74
    , 75 (Tex.2007) (involving lawsuit against State of Texas arising
    out of car wreck); Clayton W. Williams, Jr., Inc. v. Olivo, 
    952 S.W.2d 523
    , 526 (Tex.1997) (“In this case, we consider
    the liability of a general contractor and its on-site representative for injuries to an independent contractor's employee.”);
    Dallas Market Center Development, Co. v. Liedeker, 
    958 S.W.2d 382
    , 383 (Tex.1997) (concerning lawsuit filed by delivery
    person injured while loading flowers onto hotel's elevator) (overruled on other grounds byTorrington Co. v. Stutzman, 
    46 S.W.3d 829
    (Tex.2000)); Keetch v. The Kroger Co., 
    845 S.W.2d 262
    , 263 (Tex.1992) (customer, not employee, filed suit
    for injury sustained on defendant's premises); Foodtown v. Tanguma, No. 01–11–00047–CV, slip op. at 2 (Tex.App.–
    Houston [1st Dist.] Dec. 22, 2011, no pet.)(same).
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                   APPENDIX 138 19
    Kroger Company v. Milanes, --- S.W.3d ---- (2015)
    
    2015 WL 4594098
    5      See, e.g.,Sears, Roebuck & Co. v. Robinson, 
    154 Tex. 336
    , 
    280 S.W.2d 238
    , 240 (Tex.1955) (employee injured by
    premises condition rather than instrumentality) (overruled byAustin v. Kroger Texas, L.P., No. 14–0216, ––– S.W.3d
    ––––, ––––, 
    2015 WL 3641066
    , at *12 (Tex. June 12, 2015)); Barton v. Whataburger, Inc., 
    276 S.W.3d 456
    , 466–67
    (Tex.App.–Houston [1st Dist.] 2008, pet. denied) (plaintiff-employee victimized by third-party criminal act on employer's
    premises); Allen v. Connolly, 
    158 S.W.3d 61
    , 63 (Tex.App.–Houston [14th Dist.] 2005, no pet.)(same).
    6      During oral argument, Kroger was unable to identify a case dictating the outcome it seeks in its first issue. Kroger instead
    asked this Court to change the law. This we cannot do because changing higher-court precedent is not the function of an
    intermediate court of appeals. SeeDeutsch v. Hoover, Bax & Slovacek, L.L.P., 
    97 S.W.3d 179
    , 195 (Tex.App.–Houston
    [14th Dist.] 2002, no pet.)(“we must follow the Texas Supreme Court's expressions of the law and leave changes in the
    application of common-law rules to that higher authority”); see alsoEntergy Gulf States, Inc. v. Summers, 
    282 S.W.3d 433
    , 476 (Tex.2009) (Willet, J., concurring) (“Judges have no authority to second-guess the myriad policy judgments
    codified in the Workers' Compensation Act”).
    7      A non-subscribing employer may not assert any negligence by an employee as a defense. SeeTex. Lab. Code Ann. §
    406.033(a) (West 2015).
    8      Milanes testified regarding his desire to work, his inability to do manual-labor jobs like those he had been trained to
    perform, and his departure from a job pulling parts at a warehouse because he kept dropping the parts. His expert, Dr.
    Donald Huddle, testified regarding Milanes's loss of his Kroger salary ($16.69 per hour) and benefits up to the time of
    trial. He also testified regarding the present value of the salary and benefits Milanes would lose over his expected future
    work life, assuming that Milanes would be able to find employment at a lower salary. The jury awarded approximately
    the amount Dr. Huddle calculated for past lost earning capacity, and less than half of the lowest amount he calculated
    for future lost earning capacity.
    9      In a letter brief filed following oral argument, Kroger identified a sixth photograph, Plaintiff's Exhibit 8, as a photograph
    it was challenging the admission of on appeal. Kroger did not, however, object to the admission of Exhibit 8 during
    trial. Kroger therefore has not preserved its complaint regarding the admission of this photograph for appellate review.
    Tex.R.App. P. 33.1; Grace Interest, L.L.C. v. Wallis State Bank, 
    431 S.W.3d 110
    , 122 (Tex.App.–Houston [14th Dist.]
    2013, pet. denied).
    10     Of course, the juror's allegation that she asked the bailiff for an opportunity to speak to the trial judge about her concerns
    regarding deliberations is not itself evidence of matter occurring during deliberations, though the trial judge found her
    allegations not credible. Yet even if we assumed for the sake of argument that the request was made and the trial court
    should have pursued it, the court would have learned no more than the allegations in the juror's affidavit regarding what
    occurred in deliberations, which “cannot form the basis of a motion for new trial.” In re Zimmer, Inc., 
    451 S.W.3d 893
    ,
    897 n. 1 (Tex.App.–Dallas 2014, orig. proceeding).
    End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                    APPENDIX 139 20
    Lawrence v. Coastal Marine Service of Texas, Inc., 
    983 S.W.2d 757
    (1997)
    [3]   Appeal and Error
    Effect of Evidence and Inferences
    Therefrom on Direction of Verdict
    In reviewing a directed verdict, appellate court
    must consider all evidence in the light most
    favorable to the party against whom the verdict
    was directed, disregarding all contrary evidence
    and inferences.
    1 Cases that cite this headnote
    [4]   Appeal and Error
    Appeal from Ruling on Motion to Direct
    Survivors of independent contractor's employee, who was                Verdict
    killed in a crane accident, brought negligence and premises            In reviewing a directed verdict, appellate court
    liability suit against crane owner and contractor. The 136th           must determine if there is any probative evidence
    District Court, Jefferson County, Milton Gunn Shuffield,               to raise a fact issue.
    J., directed partial verdict against survivors on premises
    liability claim, and entered judgment on jury verdict against          Cases that cite this headnote
    survivors on negligence claim. Survivors appealed. The Court
    of Appeals, Ron Carr, J. (Assigned), held that: (1) question
    [5]   Appeal and Error
    of whether crane owner in fact retained control over the crane
    Appeal from Ruling on Motion to Direct
    was for the jury, but (2) jury instruction on negligence was
    Verdict
    not an improper comment on the weight of the evidence or an
    advisement to the jury of the effect of a prior ruling for the         Directed verdict will be held improper if there is
    owner on a premises liability claim.                                   any evidence in the record of probative force on
    any theory of recovery.
    Reversed and remanded in part, and affirmed in part.
    Cases that cite this headnote
    [6]   Negligence
    West Headnotes (18)                                                       Reasonably Safe or Unreasonably
    Dangerous Conditions
    [1]    Trial                                                          Generally, a premises owner has a duty to use
    “No” Evidence; Total Failure of Proof                     reasonable care to keep the premises under his
    Party is entitled to a directed verdict only when              control in a safe condition.
    there is no evidence to support a material issue.
    Cases that cite this headnote
    Cases that cite this headnote
    [7]   Negligence
    [2]    Trial                                                              Persons Working on Property
    Inferences from Evidence                                  If a premises owner retains/hires an independent
    Trial court should direct a verdict only when                  contractor to perform a specific task on the
    reasonable minds can draw only one conclusion                  premises, the independent contractor will then
    from the evidence.                                             owe a duty to use reasonable care to keep the
    premises under his control in a safe condition.
    Cases that cite this headnote
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.            APPENDIX 140                  1
    Lawrence v. Coastal Marine Service of Texas, Inc., 
    983 S.W.2d 757
    (1997)
    regarding the crane if given by owner, from
    Cases that cite this headnote                                 which it could be inferred that their course of
    business dealings gave owner premises control.
    [8]    Negligence
    Cases that cite this headnote
    Persons Working on Property
    General rule is that an owner or occupier does not
    have a duty to see that an independent contractor      [12]   Negligence
    performs work in a safe manner.                                   Accidents and Injuries in General
    Fact that crane owner did not exercise its alleged
    Cases that cite this headnote                                 control over independent contractor, whose
    employee was killed in a crane accident, did not
    [9]    Negligence                                                    release owner from premises liability regarding
    Persons Working on Property                               the employee's death; independent contractor's
    employees relied on owner to provide good
    Premises owner may be liable when it retains
    crane, and owner had responsibility to ensure
    the right to control some part of independent
    safe and suitable crane and had basic duty
    contractor's work, but fails to exercise the
    to make premises safe for its invitees, which
    retained control with reasonable care; control, or
    included duty to warn of dangerous conditions
    the right to control, when resting with the owner,
    and hidden defect.
    is paramount to recovery.
    Cases that cite this headnote
    Cases that cite this headnote
    [13]   Trial
    [10]   Negligence
    Personal Injuries in General
    Persons Working on Property
    Jury instruction that, any negligence or gross
    For premises owner to be liable for failure to
    negligence of crane owner regarding death
    exercise with reasonable care retained control
    of independent contractor's employee in crane
    over work of independent contractor, right of
    accident had to “relate to the crane in question as
    control must be more than a general right to order
    the [crane owner] was not subject to any OSHA
    the work to start or stop, to inspect progress or
    regulations as they pertain to the premises or
    receive reports, but rather, right of control must
    safe operation of the project. Further, [owner]
    extend to the specific area of operation where
    had no duty to see that [independent contractor]
    the plaintiff's injury allegedly took place; general
    or its employees performed the work in a safe
    right to control the entire operation is not enough.
    fashion,” was not an improper comment on
    Cases that cite this headnote                                 the weight of the evidence; nothing in the
    instructions suggested that the regulations were
    inapplicable to the owner, to the extent the
    [11]   Negligence
    regulations applied to the crane itself.
    Liabilities Relating to Construction,
    Demolition and Repair                                         Cases that cite this headnote
    Question of whether crane owner in fact
    retained control over the crane, its operations,
    [14]   Negligence
    movements, and conditions under which it could
    Miscellaneous Particular Cases
    operate was for the jury in premises liability
    Trial
    suit by survivors of independent contractor's
    Personal Injuries in General
    employee, who was killed in a crane accident on
    the crane owner's premises; record affirmatively              Jury instruction that, any negligence or gross
    reflected that contractor's employees would                   negligence of crane owner regarding death
    have followed owner's direction and instructions              of independent contractor's employee in crane
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.            APPENDIX 141                  2
    Lawrence v. Coastal Marine Service of Texas, Inc., 
    983 S.W.2d 757
    (1997)
    accident had to “relate to the crane in question as              jury was instructed that any negligence or gross
    the [crane owner] was not subject to any OSHA                    negligence of owner had to relate to the crane
    regulations as they pertain to the premises or                   because the owner was not subject to OSHA
    safe operation of the project. Further, [owner]                  regulations as they pertained to the premises or
    had no duty to see that [independent contractor]                 safe operation of the project, and that the owner
    or its employees performed the work in a safe                    had no duty to see that the contractor's employees
    fashion,” did not improperly advise the jury of                  performed the work safely. Rules App.Proc.,
    the effect of the trial court's prior ruling granting            Rule 81(b)(1) (Repealed).
    owner's motion for partial directed verdict on
    premises liability claim.                                        Cases that cite this headnote
    Cases that cite this headnote
    [15]   Trial                                                   Attorneys and Law Firms
    Definition or Explanation of Terms
    *759 Tommy L. Yeates, Moore, Landrey, Garth, Jones,
    Trial court must submit explanatory instructions        Burmeister & Hulett, Beaumont, Richard G. Lewis, Boneau
    and definitions that will assist the jury in            & Lewis, Port Arthur, Ed W. Barton, Orange, for appellant.
    rendering a verdict.
    Thomas W. Duesler, Harris, Lively & Duesler, Beaumont,
    Cases that cite this headnote                           Robert J. Killeen, Jr., McAlpine, Peuler, Cozad & Davie,
    Houston, Thomas C. Fitzhuge, III, Fitzhugh & Thompson,
    [16]   Trial                                                   Houston, for appellee.
    Authority to Instruct Jury in General
    Before BURGESS, STOVER and CARR, * JJ.
    Trial
    Definition of Terms
    Trial court has wide discretion to determine the
    OPINION
    sufficiency of definitions and instructions.
    RON CARR, Justice (Assigned).
    Cases that cite this headnote
    This is an appeal of a take-nothing judgment in a negligence
    [17]   Trial                                                   and premises liability case brought by appellants after the
    Opinion or Belief of Judge as to Facts             death of John Ray Lawrence as the result of an accident
    on a crane owned by appellee, Coastal Marine Service
    To be an improper direct comment on the weight
    of Texas, Inc. [Coastal], which occurred while Lawrence
    of the evidence, a jury instruction must suggest
    was working for Coastal's independent contractor, H.W.
    to the jury the trial judge's opinion.
    Campbell Construction Company [Campbell] on Coastal's
    Cases that cite this headnote                           premises.
    The case proceeded to trial against Campbell and Coastal
    [18]   Appeal and Error
    after the trial court directed a partial verdict against appellants
    Invading Province of Jury
    on the premises liability issue. The jury returned an adverse
    Survivors of independent contractor's employee,         verdict on the negligence issue and a take-nothing judgment
    who was killed in a crane accident, failed to show      was entered.
    that jury rendered an improper verdict as a result
    of a jury instruction challenged as an improper
    Appellants now bring this appeal 1 with five (5) points of
    comment on the weight of the evidence and as
    error contending that the trial court erred (1) in granting
    an advisement to the jury of the effect of a prior
    Coastal's partial directed verdict [points of error one through
    ruling for the owner on a premises liability claim;
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 142                 3
    Lawrence v. Coastal Marine Service of Texas, Inc., 
    983 S.W.2d 757
    (1997)
    three]; and, (2) by committing charge error [points four and
    five].
    Duty
    [6]   [7] Generally, a premises owner has a duty to use
    The Accident                               reasonable care to keep the premises under his control in a
    safe condition. *760 Redinger v. Living, Inc., 689 S.W.2d
    The record reflects that at the time of the accident Coastal's      415, 417 (Tex.1985). However, if a premises owner retains/
    crane was being used by Campbell's employees to offload             hires an independent contractor to perform a specific task
    skids on Coastal's property. After the skids were removed,          on the premises, the independent contractor will then owe a
    the boon was moved to the rear of the crane by the operator,        duty to use reasonable care to keep the premises under his
    at which time Lawrence's head was crushed resulting in his          control in a safe condition. 
    Id. It is
    undisputed that at all
    death. There was no barricading system to prevent access by         times material, Lawrence and his employer Campbell were
    Lawrence to the rear “pinch point” area. This rear pinch point      independent contractors of Coastal.
    area was not readily apparent to the operator in that the crane
    had no mirrors and the operator had to step out of his cab to        [8] The general rule is that an owner or occupier does not
    see this blind spot, nor did the crane have an operator's manual    have a duty to see that an independent contractor performs
    in the cab.                                                         work in a safe manner. 
    Id. Coastal can
    presume that an
    independent contractor, such as Campbell, will take proper
    care and precautions to assure the safety of its own employees.
    Agricultural Warehouse, Inc. v. Uvalle, 
    759 S.W.2d 691
    ,
    Premises Liability
    695 (Tex.App.—Dallas 1988), writ denied per curiam, 779
    Appellants' first three (3) points of error contend collectively    S.W.2d 68 (Tex.1989).
    that the trial court erred in granting Coastal's partial directed
    verdict on the premises liability issue because there is some    [9] [10] An exception to this rule exists when an employer
    evidence that Coastal in fact retained control over the crane inor general contractor retains control over the work performed
    that the record affirmatively reflects that Campbell employees  by an independent contractor. Therefore, a premises owner,
    would have followed Coastal's direction and instructions        such as Coastal, may be liable when it retains the right
    regarding the crane if given by Coastal. We agree.              to control some part of the independent contractor's work,
    but fails to exercise the retained control with reasonable
    care. 
    Redinger, 689 S.W.2d at 418
    . Control, or the right to
    control, when resting with the landowner, then, is paramount
    Directed Verdict Review                      to recovery. Exxon Corp. v. Quinn, 
    726 S.W.2d 17
    , 20
    (Tex.1987). In this instance, the right of control must be more
    [1]    [2]    [3]    [4]   [5] A party is entitled to a directed
    than a general right to order the work to start or stop, to
    verdict only when there is no evidence to support a material
    inspect progress or receive reports. Redinger, 689 S.W.2d at
    issue. Corbin v. Safeway Stores, Inc., 
    648 S.W.2d 292
    , 295
    418. The right of control must extend to the specific area of
    (Tex.1983). The trial court should direct a verdict only when
    operation where the plaintiff's injury allegedly took place. A
    reasonable minds can draw only one conclusion from the
    general right to control the entire operation is not enough.
    evidence. Vance v. My Apartment Steak House, 677 S.W.2d
    Exxon Corp. v. Tidwell, 
    867 S.W.2d 19
    , 23 (Tex.1993).
    480, 483 (Tex.1984). In reviewing a directed verdict, we
    must consider all evidence in the light most favorable to the
    In this case, it is undisputed that at the time of the accident,
    party against whom the verdict was directed, disregarding
    Lawrence was an employee of Campbell; Campbell was an
    all contrary evidence and inferences. Porterfield v. Brinegar,
    independent contractor of Coastal; and, that Coastal was the
    
    719 S.W.2d 558
    , 559 (Tex.1986). The appellate court must
    owner of the unsafe crane, which is the premises in question.
    determine if there is any probative evidence to raise a fact
    issue. 
    Id. A directed
    verdict will be held improper if there is
    any evidence in the record of probative force on any theory of
    recovery. Jones v.Tarrant Utility Co., 
    638 S.W.2d 862
    , 865                               The Evidence
    (Tex.1982).
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 143               4
    Lawrence v. Coastal Marine Service of Texas, Inc., 
    983 S.W.2d 757
    (1997)
    [11] Robert Phillips was Campbell's supervisor at the site         which the crane operator could not have done in this case
    and at the time of Lawrence's death. He testified he would          because it was not present in the cab. Wiethorn also opined
    have complied with any instructions from Coastal regarding          that the crane was not properly maintained in that it had
    movement of the crane. Campbell historically provided labor         numerous problems, including a throttle that did not operate
    services for Coastal on Coastal's property. Phillips relied         properly, it ran at a constant speed that could not be adjusted,
    on Coastal to provide a good crane. He would have put a             the boom angle indicator was defective, a brake did not
    barricade tape around the danger area if Coastal had wanted         operate, outrigger controls had been taken out, and various
    him to, and, he would have done whatever he had been                other problems. Wiethorn admitted that Coastal, the owner,
    ordered to do by anybody at Coastal and he knew he was to           had the responsibility to have some type of inspection
    do so at the time period that the death occurred.                   procedure set up to make sure a safe and suitable crane was
    provided to those who would use it on the premises. OSHA
    Mr. Melvin was an employee and the human resources                  requires barricades in this particular setting. He opined that
    manager of Campbell at the time of Lawrence's death. Solari         barricades are customary with both old and new cranes and
    acknowledged there was absolutely no question in his mind           it does not take much to make a barricade system even for
    that if Mr. Lyday, the President of Coastal, had asked him to       old cranes. He admitted that the cost of barricade tape is
    have Phillips move the crane, that he would have complied;          nominal and basically less than a penny a foot. He testified
    or if Mr. Lyday had asked him to not use the crane until it         that this is something Coastal could have kept on a permanent
    had been inspected or brought up to industry standards with         basis is the cab for the purpose of warning someone. Had
    all the manuals on board, etc., that he would have complied as      Wiethorn inspected the crane, he would have recommended
    well; that the safe operation of cranes and instructions related    that a portable barricade travel with the crane.
    thereto are important to the workmen and despite this he had
    not even seen the operator's manual until after Lawrence's
    death; that Mr. Lyday came to the yard in September of 1994
    Conclusion
    and that he came there after the fatality; and, that had Mr.
    Lyday come out before the fatality and requested that the            [12] Viewing the above evidence in the light most favorable
    crane be moved, that it would have been moved.                      to appellants, we conclude the above evidence is some
    evidence of probative force that raises a fact issue regarding
    Campbell's expert, Jimmy Wiethorn, was a professional               Coastal's right to control the crane, its operations, movements,
    engineer with experience in operating cranes. He testified that     and conditions under which it could operate while it was in
    the crane was ragged, old, had seen quite an extensive life, and    Campbell's possession. The retention of the right to direct or
    was pretty well beat up. He testified that the outrigger controls   to forbid the manner in which something is done suffices.
    to the crane had been disengaged or removed from inside the         
    Redinger 689 S.W.2d at 418
    . The employees relied on Coastal
    cabin, the acceleration pedal had been disconnected, the brake      to provide a good crane. Coastal had a responsibility to ensure
    installed below the console did not operate, the gas throttle       a safe and suitable crane and had the basic duty to make the
    did not operate, there was no operator's manual present, and,       premises safe for its invitees. Smith v. Henger, 
    148 Tex. 456
    ,
    that the operator's manual that should have been in the crane       
    226 S.W.2d 425
    , 431 (1950). This includes the duty to warn
    contained specific instructions to avoid moving the crane until     of dangerous conditions and hidden defects. 
    Id. In Abalos
    v.
    all personnel are clear.                                            Oil Development Co. of Texas, 
    544 S.W.2d 627
    (Tex.1976):
    the Supreme Court differentiated those cases in which the
    *761 Wiethorn further testified that there was no load chart
    defendant did not create the dangerous condition. In Abalos, 2
    to comply with the American National Standards Institute
    the Supreme Court stated that although an owner does not
    (ANSI) within the crane. The operator's manual was required
    have a duty to see that an independent contractor performs
    by OSHA and ANSI to be kept in the cab at all times.
    work in a safe manner, the rule is inapplicable “if a party
    According to Wiethorn, OSHA and ANSI standards applied
    negligently creates a dangerous situation, it then becomes
    to this particular crane and Coastal could have easily provided
    his duty to do something about it ...” 
    Id. at 633.
    Since the
    the people who worked with the crane with the pertinent
    employees would have acquiesced to Coastal's right to direct
    OSHA standards regarding its operation. He testified that
    the operations of the crane, it is fair to infer that their course of
    proper operation of a crane calls for the operator to be
    business dealings gave Coastal premises control. The fact that
    thoroughly conversant with the crane's operating manual,
    Coastal did not exercise the control does not release it from
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                     APPENDIX 144                  5
    Lawrence v. Coastal Marine Service of Texas, Inc., 
    983 S.W.2d 757
    (1997)
    of the project.” There is nothing in the Court's instructions to
    liability. O'Neill v. Startex, 
    715 S.W.2d 802
    , 805 (Tex.App.
    suggest that OSHA regulations were inapplicable to Coastal,
    —Austin 1986, no writ).
    to the extent the regulations applied to the crane itself.
    Appellants' points of error one through three are sustained.
    [14] Appellants next contend that because Coastal was
    Judgment is reversed and remanded as to appellants' premises
    a premises owner, the instruction somehow advised the
    liability claim.
    jury of the effect of the trial court's prior ruling granting
    Coastal's motion for partial directed verdict, as stated above.
    We disagree with appellants' argument that the instruction
    Alleged Charge Error                           effectively instructs the jury that Coastal is not subject to any
    OSHA standards and that the jury should not consider OSHA
    [13] The trial court submitted the following instruction
    standards and the experts' testimony based thereon.
    preceding Question No. 1:
    In determining the negligence or                       [15]     [16]     [17] A trial court must submit explanatory
    gross negligence, if any, of Coastal                  instructions and definitions that will assist the jury in
    Marine Services of Texas, Inc., you                   rendering a verdict. Wichita County, Texas v. Hart, 917
    are instructed that such negligence                   S.W.2d 779, 783–84 (Tex.1996). This is exactly what was
    or gross negligence must relate to                    done in the case at bar. Additionally, the trial court has
    the crane in question as the premises                 wide discretion to determine the sufficiency of definitions
    owner, Coastal Marine Service of                      and instructions. Plainsman Trading Co. v. Crews, 898
    Texas, Inc. was not subject to any                    S.W.2d 786, 791 (Tex.1995). Although an instruction might
    OSHA regulations as they pertain to                   incidentally comment on the evidence, the Court's charge is
    the premises or safe operation of                     not objectionable on the ground that it incidentally constitutes
    the project. Further, as the premises                 a comment on the weight of the evidence when it is properly
    owner, Coastal Marine Service of                      a part of an instruction or definition. TEX.R. CIV. P. 277. To
    Texas, Inc. had no duty to see that the               be a direct comment on the weight of the evidence, the jury
    H.W. Campbell Construction *762                       instruction must suggest to the jury the trial judge's opinion.
    Company or its employees performed                    Texas Employers Ins. Ass'n v. Duree, 
    798 S.W.2d 406
    , 412
    the work in a safe fashion.                           (Tex.App.—Fort Worth 1990, writ denied). The instruction
    preceding Question No. 1 given the jury by the trial court
    gave no indication to the jury of any opinion of the trial court
    Appellants' points of error four and five collectively contend
    regarding the facts of the case and therefore, it was proper.
    that the trial court erred in submitting the above instruction
    because it improperly commented on the weight of the
    [18] Furthermore, appellants have not shown that the
    evidence [point four] and advised the jury of the effect of its
    submission of this instruction caused the jury to render an
    prior ruling on Coastal's motion for partial directed verdict
    improper verdict. TEX.R.APP. P. 81(b)(1). This is especially
    [point five]. We disagree.
    true in light of the fact that the appellants vigorously argued
    the applicability of OSHA standards to the crane itself during
    Campbell's expert testified that certain OSHA standards apply
    closing arguments.
    to the crane itself.
    Appellants' fourth and fifth points of error are denied.
    We first conclude the instruction, as submitted, was not
    Judgment is affirmed as to appellants' negligence claim.
    an improper comment on the weight of the evidence. The
    instruction did not advise the jury that OSHA regulations do
    JUDGMENT IS REVERSED AND REMANDED IN PART
    not apply to Coastal with regard to the crane and its operation.
    AND AFFIRMED IN PART.
    The instruction is clear, in specifically instructing the jury
    that any negligence on the part of Coastal must relate to
    the crane in question. The second sentence of the instruction      All Citations
    simply stated that Coastal was not subject to any OSHA
    regulations “as they pertain to the premises or safe operation     
    983 S.W.2d 757
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 145                6
    Lawrence v. Coastal Marine Service of Texas, Inc., 
    983 S.W.2d 757
    (1997)
    Footnotes
    *     The Honorable Ron Carr, sitting by assignment pursuant to TEX. GOV'T CODE ANN . § 74.003(b) (Vernon 1988).
    1     After perfecting appeal, Campbell was dismissed from this appeal.
    2     Redinger relies on Abalos to support its holding at 418.
    End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                 APPENDIX 146                7