Robison v. Continental ( 2022 )

Case: 22-40071 Document: 00516585077 Page: 1 Date Filed: 12/20/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 20, 2022
No. 22-40071 Lyle W. Cayce
Clerk
Jeremy Robison, individually and on behalf of his son, a
MINOR; Diantoinette Jones, individually and on behalf
of minor child, PP; Schmiker Traylor, individually and
on behalf of minor child, RD; Janice Gobert,
individually and on behalf of minor child, CB; Jessica
Prejean, individually and on behalf of minor child, IW;
et al,
Plaintiffs—Appellants,
versus
Continental Casualty Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:17-CV-508
Before Graves, Willett, and Engelhardt, Circuit Judges.
James E. Graves, Circuit Judge:*
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40071 Document: 00516585077 Page: 2 Date Filed: 12/20/2022
No. 22-40071
Students and staff at Marshall Middle School in Beaumont, TX
(“Plaintiffs”) sued Continental Casualty Company (“Continental”) after
being exposed to a carbon monoxide leak from a water boiler. Continental
insured the school’s water boilers, and Plaintiffs claim Continental
negligently performed a state-mandated boiler inspection, thereby causing
their injuries. Continental moved for summary judgment, and the district
court granted its motion. We AFFIRM.
I. Facts & Procedural History
a. The 2016 Incident
On January 28, 2016, students and staff evacuated Marshall Middle
School after emergency responders discovered a carbon monoxide leak in the
building. Sixty-nine students and staff members were transported to local
medical facilities for treatment, and many more sought treatment of their
own accord. A fire department hazmat team determined the leak was coming
from the boiler room, so the school shut off the boilers. The Texas
Department of Licensing and Regulation (“TDLR”) dispatched two boiler
inspectors to the scene: Deputy Boiler Inspector Richard Charland and Chief
Boiler Inspector Robby Troutt. After Charland performed a preliminary
investigation, Troutt arrived and took over the investigation.
There are two boilers in the boiler room at Marshall Middle School:
one for heating (Boiler 840) and one for hot water supply (Boiler 254). There
are also two fans in the room: one for combustion (pushing air into the room)
and one for exhaust (pushing air out of the room). As part of his investigation,
Troutt tested both boilers. Boiler 254 ran without incident, but after running
Boiler 840 for less than a minute, the carbon monoxide detectors alerted.
Troutt also noticed that the ventilation fan installed above Boiler 840 was not
operating. According to Troutt, the combustion fan was non-operational at
2
Case: 22-40071 Document: 00516585077 Page: 3 Date Filed: 12/20/2022
No. 22-40071
the time of the incident, but the exhaust fan was operational. He explained
the effect of that in his investigative report:
With the exhaust fan pulling air out of the boiler room without
air supplied by the combustion air fan, the boiler room would
be under a negative pressure. With the boiler room under a
negative pressure, air from the outside would be pulled in
through the flue pipes of both boilers . . . If either of these
boilers were running at the time of the accident, the fumes of
combustion generated by operating equipment would not have
been able to exhaust as there would be fresh air entering the
room through the flue pipes instead of the fumes of combustion
exiting through these pipes.
Troutt concluded that the carbon monoxide leak resulted from two failures:
1) the non-operational status of the power ventilation fan, and 2) a flame
exiting the side of the boiler due to corrosion of the fire box refractory.
This case involves a water boiler safety component called an interlock.
The interlock is supposed to stop the boiler from operating if its combustion
or exhaust fans stop running. According to Troutt, the interlock for Boiler
840 did not directly connect the fans to the boiler but was instead attached to
a light switch on the wall. He said the interlock worked properly on the day
of the incident when the light switch was turned on.
b. Texas Boiler Law and Rules
Water boilers in Texas are regulated by the TDLR. Texas law
governing boilers is set forth in Texas Health & Safety Code chapter 755 (the
“Texas Boiler Law”) and Texas Administrative Code chapter 65 (the
“Texas Boiler Rules”) (together, the “Texas Boiler Law and Rules”). The
Texas Boiler Law and Rules require each boiler in Texas to be registered with
TDLR and inspected regularly. Tex. Health & Safety Code § 755.025; 16
Tex. Admin. Code § 65.61. The inspections must be performed by an
authorized inspector. In order to become an authorized inspector, one must
3
Case: 22-40071 Document: 00516585077 Page: 4 Date Filed: 12/20/2022
No. 22-40071
have at least five years of prior experience with boilers, pass a test on the
Texas Boiler Law and Rules, meet individually with the chief inspector, and
be employed by an entity registered with TDLR as an authorized inspection
agency. 16 Tex. Admin. Code §§ 65.14, 65.25. Insured boilers “shall be
inspected by the inspection agency that issued an insurance policy,” while all
other boilers shall be inspected by the TDLR. Id. § 65.61(b). If the inspector
finds the boiler “to be in a safe condition for operation,” the TDLR will issue
a certificate of operation. Tex. Health & Safety Code § 755.029(a)(1).
However, if the inspector finds the boiler is unsafe, the boiler must be taken
out of commission for repair or replacement. Id. § 755.001(5), (21). The
Texas Boiler Rules require all boiler rooms to have an “adequate and
uninterrupted air supply to assure proper combustion and ventilation.” 16
Tex. Admin. Code § 65.603(a). Boilers and their fans “shall be interlocked
so that the burners will not operate unless a supply of combustion, ventilation
and dilution air” are present as required by the boiler manufacturer’s
recommendations. Id. § 65.603(b)(2).
c. The 2015 Inspection
Beaumont Independent School District (“BISD”) had a boiler
insurance policy with Continental covering the boilers at Marshall Middle
School. Pursuant to the policy and Texas Boiler Law and Rules, Continental
employed authorized inspectors to inspect BISD’s boilers. On November 5,
2015, Continental sent a boiler inspector, Shannon Nester, to conduct a
safety inspection of Boiler 840. Nester performed an external inspection of
the boiler while the boiler was not in operation. To verify that the boiler had
an interlock, he identified an electrical conduit leading from the combustion
air fan to the boiler. He reported no violations or adverse conditions and
determined that a certificate should be issued.
4
Case: 22-40071 Document: 00516585077 Page: 5 Date Filed: 12/20/2022
No. 22-40071
d. Procedural History
After the incident, Plaintiffs sued Continental for negligence, willful
and wanton conduct, gross negligence, and negligent undertaking. They
claim Nester’s inspection did not comply with the Texas Boiler Law and
Rules because he did not perform the inspection while the boiler was running
or confirm that the boiler had a functioning interlock. They assert that
Continental’s failure to exercise reasonable care in performing this
inspection caused Plaintiffs’ injuries because a functioning interlock would
have stopped the boiler from running when the combustion fan stopped
working.
On June 29, 2021, Continental moved for summary judgment. In its
motion, Continental argued Plaintiffs’ claims should be dismissed because:
1) Continental is shielded by sovereign immunity for state-mandated boiler
inspections, 2) Continental owed no duty to students and staff at the school
with regard to the November 2015 boiler inspection, and 3) there is neither
evidence that Continental breached a duty to Plaintiffs nor evidence that the
alleged breach caused Plaintiffs’ injuries. That same day, Continental filed a
motion to exclude the proposed testimony of Plaintiffs’ expert Bruce
McDaniel on the standard of care for boiler inspections, breach, and
causation.
Six months later, Continental’s motion to exclude was granted in part.
The district court found McDaniel did not have adequate experience to
testify about the standard of care for boiler inspectors, partly because he had
never performed a state-commissioned inspection in Texas. While the court
would allow McDaniel to testify as an expert regarding the design, condition,
operation, and maintenance of boilers, it excluded his proposed testimony on
“the applicable legal requirements and proper scope of state-mandated boiler
inspections in Texas, the standard of care for boiler inspectors in Texas, the
5
Case: 22-40071 Document: 00516585077 Page: 6 Date Filed: 12/20/2022
No. 22-40071
causation of the carbon monoxide discharge at MMS, or how Nester’s
alleged acts or omissions caused or contributed to the carbon monoxide
emission incident.” Plaintiffs do not appeal that ruling.
The district court granted Continental’s motion for summary
judgment the same day it granted the motion to exclude. In its order, it
rejected Continental’s arguments that it either was shielded by sovereign
immunity or did not owe a duty of care to students and staff at the school.
But the district court concluded that Plaintiffs failed to produce “any
evidence—let alone, sufficient evidence—to show that Continental’s
conduct caused the carbon monoxide release.” Finding that Plaintiffs could
not establish proximate cause as a matter of law, it granted Continental’s
motion.
Plaintiffs now appeal on two grounds: 1) the district court
impermissibly resolved evidentiary conflicts in Continental’s favor, and 2)
the district court applied an improper causation standard. Continental
defends the district court’s judgment on these two grounds and raises an
alternative ground for affirmance: it claims expert testimony is necessary to
establish the duty of care, breach, and causation in this case, and Plaintiffs
have failed to produce admissible expert testimony to this effect.
II. Standard of Review
A summary judgment is reviewed de novo, applying the same standard
as the district court. Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454
(5th Cir. 2005). “We construe all facts and inferences in the light most
favorable to the nonmoving party when reviewing . . . [a] summary
judgment.” Id. (citation omitted).
6
Case: 22-40071 Document: 00516585077 Page: 7 Date Filed: 12/20/2022
No. 22-40071
III. Discussion
In its alternative ground, Continental argues that we should affirm the
district court’s grant of summary judgment because Plaintiffs have failed to
produce the expert testimony necessary to establish a duty of care, breach,
and causation in this technical context. Continental did not raise this
argument before the district court, but it could not have raised it at the time
because the district court had not yet excluded McDaniel’s proposed
testimony. “Generally, we do not consider issues on appeal that were not
presented and argued before the lower court.” New Orleans Depot Servs., Inc.
v. Dir., Off. of Worker’s Comp. Programs, 718 F.3d 384, 387–88 (5th Cir.
2013). However, “a well-settled discretionary exception to the waiver rule
exists where a disputed issue concerns ‘a pure question of law.’” Id. at 388;
see also Morel v. Sabine Towing & Transp. Co., 669 F.2d 345, 346 (5th Cir.
1982) (“There are recognized exceptions to this rule, however . . . which
encompass the case before us. The question presented is a matter of law[,]
and a remand solely for its consideration is neither in the interest of justice
nor judicial economy.”). As discussed below, the necessity of expert
testimony is a question of law, so we exercise our discretion to address this
issue here instead of remanding it to the district court.
Under Texas law, “[e]xpert testimony is necessary when the alleged
negligence is of such a nature as not to be within the experience of the
layman.” FFE Transp. Services, Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex.
2004). The necessity of expert testimony is a question of law. Id. at 89. To
determine whether expert testimony is necessary, Texas courts “consider[]
whether the conduct at issue involves the use of specialized equipment and
techniques unfamiliar to the ordinary person.” Id. at 91. For instance, the
plaintiffs in Fulgham claimed the trailer involved in a tractor-trailer accident
was “defective because the bolts and plates anchoring the upper coupler
7
Case: 22-40071 Document: 00516585077 Page: 8 Date Filed: 12/20/2022
No. 22-40071
assembly to the trailer were missing or weak or both due to rust and
inadequate torque.” Id. at 87. The Texas Supreme Court concluded that
“[w]hile the ordinary person may be able to detect whether a visible bolt is
loose or rusty, determining when that looseness or rust is sufficient to create
a danger requires specialized knowledge.” Id. at 91. Therefore, expert
testimony was necessary to establish negligence. Id.Another case involving the necessity of expert testimony that both
Plaintiffs and Continental rely on is Rodriguez v. CenterPoint Energy Houston
Electric, L.L.C., No. 14-16-00867-CV, 2018 WL 5261246, *2 (Tex. App.—
Houston [14th Dist.] Oct. 23, 2018, no pet.). In that case, the plaintiff
homeowner thought her tenant was tampering with the electricity meter and
stealing electricity. Id. at *2. She notified CenterPoint, her electricity
provider, and it sent someone to check on the meter but ultimately did not
disconnect the electricity. Id. The house caught fire five days later due to an
electrical malfunction. Id. at *3. The homeowner sued, claiming
CenterPoint’s failure to disconnect the electricity caused the fire. The court
concluded that expert testimony was necessary for plaintiff to establish her
case because “[p]roving the standard of care, breach, and causation here
required consideration of how a utility functions, some knowledge of
electricity, and how the company’s equipment operates.” Id. at *6. While she
did not present expert testimony on the duty of care, the court found that she
could rely on CenterPoint’s expert to establish the standard of care. Id. But
there was no proposed testimony regarding breach since CenterPoint’s
expert opined that CenterPoint had complied with the applicable standard of
care. Id. at *6. Without testimony on breach, plaintiff could not prevail on her
negligence claims as a matter of law. Id. at *7.
Again, this case revolves around the interlock. Plaintiffs’ argument
that Nester’s inspection of Boiler 840 breached the standard of care is
twofold. First, they argue that the Texas Boiler Rules require inspectors to
8
Case: 22-40071 Document: 00516585077 Page: 9 Date Filed: 12/20/2022
No. 22-40071
confirm that a boiler has a functioning interlock instead of simply confirming
that it has an interlock. Second, they argue the interlock for Boiler 840 does
not comply with the Texas Boiler Rules because it connects the boiler to a
light switch instead of directly to its fans. In response, Continental argues
that the Texas Boiler Law and Rules do not require a particular design for
interlocks and that Nester’s inspection complied with the Texas Boiler Law
and Rules.
After this recitation of the parties’ contentions, it is clear that this case
involves both specialized equipment and techniques unfamiliar to the
ordinary person. A lay juror would not know about water boilers, their safety
components, or the requirements of a Texas water boiler inspection. That
this case involves specialized knowledge is further evinced by the licensure
requirements for inspectors—five years’ experience, passing a test on the
Texas Boiler Law and Rules, meeting individually with the Chief Boiler
Inspector, and working for an entity approved by the TDLR. 16 Tex. Admin.
Code §§ 65.14, 65.25. Because determining whether a water boiler inspection
complied with the Texas Boiler Law and Rules involves specialized
knowledge, we conclude that Plaintiffs need expert testimony to establish
their negligence claims. Fulgham, 154 S.W.3d at 91; Simmons v. Briggs Equip.
Tr., 221 S.W.3d 109, 114 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(holding that “rail-car movers, the functioning of their engines and other
internal parts, or the frequency and type of inspection and maintenance they
require” are not within the experience of laypeople); Turbines, Inc. v. Dardis,
1 S.W.3d 726, 738 (Tex. App.—Amarillo 1999, pet. denied) (holding that
inspection and repair of aircraft engine are not within the experience of
laypeople).
Plaintiffs first respond by arguing they need not present their own
expert: “[s]imply because Troutt was designated as an expert by Continental
does not mean his testimony cannot establish the standard of care.” Like the
9
Case: 22-40071 Document: 00516585077 Page: 10 Date Filed: 12/20/2022
No. 22-40071
plaintiff in Rodriguez, they can rely on a defendant’s expert to establish the
standard of care. 2018 WL 5261246, at *6. However, Plaintiffs’ purported
reliance on Troutt as an expert directly contradicts their position in their
opening brief: “Troutt did not testify as an expert on what a reasonably
prudent inspector—the legal standard for proving negligence—should do.”
Even if Plaintiffs could rely on his testimony to establish the standard of care,
Troutt went on to testify that Nester’s inspection complied with the Texas
Boiler Law and Rules. Thus, Plaintiffs are in the same position as the plaintiff
in Rodriguez: assuming they can rely on Troutt’s testimony to establish the
duty of care, they still have no admissible expert testimony regarding breach.
Rodriguez, 2018 WL 5261246, at *6.
Plaintiffs also argue expert testimony is not necessary because the
Texas Boiler Law and Rules establish the standard of care. Here, their claim
is akin to negligence per se because they assert that the law and rules can
speak for themselves and provide the contours of the duty owed. However,
“[i]n a negligence per se case, even if the statutory language appears
straightforward, expert testimony may be needed to assist the jury in deciding
whether the actor’s conduct complied with the statute.” Bevers v. Gaylord
Broad. Co., L.P., No. 05-01-00895-CV, 2002 WL 1582286, at *4 (Tex.
App.—Dallas July 18, 2002, pet. denied) (citing Lyondell Petrochem. Co. v.
Fluor Daniel, Inc., 888 S.W.2d 547, 554–55 (Tex. App.—Houston [1st Dist.]
1994, writ denied). In Bevers, the plaintiff asserted liability under a negligence
per se theory claiming that defendant breached a duty of care by violating a
federal aviation regulation. Id. But the court determined that “expert
testimony was required to guide the fact finder as to what constituted
hazardous operation of a helicopter in the circumstances.” Id. at *5. As the
Houston Court of Appeals (1st District) put it in Lyondell,
Although the wording was straightforward, and may, as the
trial court put it, have needed no expert testimony to “explain”
10
Case: 22-40071 Document: 00516585077 Page: 11 Date Filed: 12/20/2022
No. 22-40071
it to the jury, the application of that regulation to a set of facts,
to determine whether Lyondell had complied with the
regulation, was not straightforward. That determination
demanded more of the jury than merely making a check-off
comparison between its own fact findings and some specific,
objective regulatory standards—such as a requisite number of
hours of instruction, for instance.
Lyondell, 888 S.W.2d at 554 (emphasis in original). Plaintiffs assert that the
Texas Boiler Rules “require[] inspectors to confirm the presence of a
working interlock.” But Continental presents a competing interpretation of
this rule based on TDLR’s comments and the text of the rule. We take no
view of which interpretation is correct; we only note this disagreement to
show there is no “objective regulatory standard” or straightforward
application of the Texas Boiler Law and Rules. Expert testimony is necessary
to guide the fact finder as to whether Nester’s inspection satisfied the
requirements of the Texas Boiler Law and Rules under these circumstances.
Since they have not produced admissible testimony to this effect, Plaintiffs’
case cannot proceed.
IV. Conclusion
Water boilers and the requirements of state-mandated boiler
inspections are not a matter of common knowledge or within the general
experience of a layperson, so Plaintiffs were required to present expert
testimony to establish the standard of care and breach. Plaintiffs do not have
a viable negligence claim because they failed to provide expert testimony
regarding breach. Without a viable negligence claim, Plaintiffs also cannot
proceed on their claims of gross negligence and willful and wanton conduct.
See, e.g., City of Dallas v. Patrick, 347 S.W.3d 452, 458 (Tex. App.—Dallas
2011, no pet.) (“Because there is no viable claim for negligence under this
theory, there is, likewise, no viable claim for gross negligence under this
theory.”); Sanders v. Herold, 217 S.W.3d 11, 20 (Tex. App.—Houston [1st
11
Case: 22-40071 Document: 00516585077 Page: 12 Date Filed: 12/20/2022
No. 22-40071
Dist.] 2006, no pet.) (“one’s conduct cannot be grossly negligent without
being negligent”); see also Turner v. Franklin, 325 S.W.3d 771, 785–86 (Tex.
App.—Dallas 2010, pet. denied) (collecting Texas cases equating willful and
wanton conduct with gross negligence). Accordingly, the judgment of the
district court is AFFIRMED.
12