Avila v. Millennium ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21195
MARCOS AVILA; FABIANA AVILA
Plaintiffs-Appellants,
v.
MILLENNIUM PETROCHEMICALS, INC.
Defendant-Appellee.
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Appeal from the United States District
Court for the Southern District of Texas
(H-98-1033)
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February 12, 2001
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The appeal of this workplace injury case is before us on
diversity jurisdiction. After receiving an adverse judgment based
on a jury verdict, Plaintiffs-Appellants Marcos and Fabiana Avila
(“the Avilas”) appealed, asking us to reverse and remand for a new
trial. They base their appeal on the contention that the district
court’s instructions to the jury were fatally flawed. The Avilas
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
argue that the jury instructions, particularly the first
interrogatory, do not properly convey the issue that the jury was
to decide: Whether Defendant-Appellee Millennium Petrochemicals,
Inc. (“Millennium”) retained supervisory control over the
industrial construction work of an independent contractor for which
Marcos was working when he was injured. We conclude that the
district court’s instructions provided the jury with sufficient
guidance on the factual determination they were to make and
therefore affirm that court’s judgment based on the jury’s verdict.
I. Facts and Proceedings
Millennium owns and operates a petrochemical plant at La
Porte, Texas. When one of the furnaces at that plant ceased to
function properly, Millennium decided to retube it. For that task,
Millennium retained the services of a number of independent
contractors, including Anderson Industrial Scaffolding Services,
Inc. (“Anderson”), an independent contractor already on stand-by
with Millennium pursuant to a pre-existing year-to-year contract.
In that contract, Anderson had agreed to perform work for
Millennium on request, when and as needed.
Marcos Avila (“Marcos”) was employed by Anderson as part of a
crew assigned to erect scaffolding and remove insulation around the
Millennium furnace so that workers for other contractors could
perform additional work on it, on the completion of which another
crew would return to re-insulate the furnace and remove the
scaffolding. Marcos’s assignment was to remove an outer layer of
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sheet metal, remove and roll up the old fiberglass insulation, and
place it in large plastic bags. Scaffolding had been placed at
each level of the furnace, and, like the other Anderson workers on
his crew, Marcos was required to use a safety harness attached to
the scaffold overhead at all times.
Marcos testified that on the occasion in question he untied
his safety harness during the course of moving a bag of insulation
—— a task that he claims he could not have performed while
remaining tied off. While his harness was untied, Marcos lost his
balance and fell through an opening in the scaffolding, landing on
the level below and sustaining serious injuries. Marcos stated
that he was rising from a squatting position when he hit his head
on an overhead beam, lost his balance, and fell through an open
area on Level 4 of the scaffolding at a point where boarding had
not yet been laid down.
The Avilas brought suit against Millennium, contending that
the company was responsible for Marcos’s fall because it had
negligently exercised supervisory control over the work performed
by Anderson’s employees. The Avilas assign as negligence
Anderson’s failure to have boarding in place on the scaffolding
while the old insulation was being removed, contending that
Marcos’s fall would have been prevented if the boarding had already
been laid down on the scaffolding. This, according to the Avilas,
made Millennium liable for failure to maintain a safe workplace.
The jury found for Millennium, answering negatively the first
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interrogatory, which asked the jury:
Do you find from the preponderance of the
evidence that on July 16, 1997 at a
petrochemical plant that it owned at 1515
Miller Cut-Off Road in La Porte, Texas,
Millennium Petrochemicals, Inc. had retained
the right of control over Anderson Industrial
Services, Inc. employees’ work to remove
insulation on level 4 of Furnace 8?
The district court then entered final judgment in favor of
Millennium and ordered the Avilas to pay costs. The Avilas timely
filed a notice of appeal.
II. Analysis
A. Standard of Review
When we review a timely objection to the district court’s jury
instructions we must determine whether the appellant has
demonstrated “that the charge as a whole creates substantial and
ineradicable doubt whether the jury has been properly guided in its
deliberations”1; but “even if the jury instructions were erroneous,
we will not reverse if we determine, based upon the entire record,
that the challenged instruction could not have affected the outcome
of the case.”2
B. The Jury Instruction
A premises owner generally has no duty to ensure that an
independent contractor performs the work it is hired to do in a
1
Hartsell v. Dr. Pepper Bottling Co., 207 F.3d 269, 272 (5th
Cir. 2000) (quoting Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th
Cir.1997) (internal citation and quotation marks omitted)).
2
Id.4
safe manner, and thus is typically not liable for injury or damage
resulting from an unsafe performance by the contractor. Texas law
recognizes an exception to this general rule, however, for any
premises owner “who entrusts work to an independent contractor, but
who retains the control of any part of the work.”3 In such a case
the employer is “subject to liability for physical harm to others
for whose safety the employer owes a duty to exercise reasonable
care, which is caused by his failure to exercise his control with
reasonable care.”4 The supervisory control exercised “must relate
to the activity that actually caused the injury.”5
The sole issue on appeal here is whether the instruction with
which the jury was charged, particularly the first interrogatory,
sufficiently informed the jury of the determination it was to make,
i.e., whether Millennium exercised supervisory control over the
work performed by Anderson’s employees that Marcos claims caused
his fall.6 The Avilas assert that the district court committed
3
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)
(citing Restatement (Second) of Torts § 414 (1977)).
4
Id.
5
Coastal Marine Serv. of Texas v. Lawrence, 988 S.W.2d 223,
226 (Tex. 1999).
6
The instruction accompanying the first interrogatory
generally informed the jury that a premises owner/ operator
(Millennium) owes no duty to the employees of an independent
contractor (Marcos) unless the owner/operator retains supervisory
control over the part of the independent contractor’s work on the
premises that actually caused the injury, to such a degree that the
control includes at the least the right to control the order in
which the work is to be done or the right to ensure that the work
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reversible error by refusing to include the words “and lay down
boarding” after “to remove insulation” in the first interrogatory.
The Avilas argue that removal of the insulation was a separate job
from that of laying down the boarding on the scaffolding; that it
was not a lesser included facet of the overall insulation removal
project. As such, contend the Avilas, the interrogatory formulated
and given to the jury obfuscated the issue that it was to decide,
namely whether Millennium exercised control over installation of
the boarding on the scaffolding —— specifically, the decision not
to lay down boarding on the scaffolding prior to removal of the old
insulation —— the specific “part of the work” that the Avilas
allege caused the accident. In essence, the Avilas argue that the
interrogatory was too narrowly focused on insulation removal alone
and did not instruct or permit the jury to address Millennium’s
supervisory role in the laying down of the boards on the
scaffolding.
Millennium contends, in contrast, that Anderson was initially
employed to remove the old insulation on the furnace and that, like
removing and bagging the old insulation, both erecting the
scaffolding and laying down the boards were integral sub-parts of
that entire job and thus were lesser included facets of the overall
insulation removal project. Thus, insists Millennium, the first
interrogatory’s focus on removal of insulation covered not just the
is not performed in an unsafe manner.
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taking off and bagging of the old insulation but all facets of that
job, including erecting the scaffolding, removing and bagging the
old insulation, and laying down the boards. Millennium also points
out that the purpose for which the boards were to be laid down was
not to provide an additional safety feature for the protection of
those of Anderson’s employees who, like Marcos, were to ascend and
work on the scaffolding while removing the old insulation. Rather,
advances Millennium, the boarding was to be installed for the
subsequent use of another group of workers, namely, the welders,
whose performance would not commence until the insulation removal
job had been completed. Moreover, continues Millennium, the
primary purpose of the boards was not to serve as safety features
for the welders but as surfaces on which to place their welding
equipment while they welded on the furnace.
Regardless of which party’s analysis of the job and its
description might ultimately prove to be correct, the Avilas’ claim
is unavailing under the facts presented to the jury, as reflected
by the record as a whole. If, as Millennium contends, the
insulation removal job that Anderson was retained to perform
necessarily included installation of the boards on the scaffolding
as an integral part of the contract, then “laying down boarding,”
like erecting the scaffolding, was implicitly included in the total
task which would be “to remove insulation.” That would make the
first interrogatory all-inclusive and accurate. But if, as the
Avilas urge, installation of the boards was distinct from the task
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of removing insulation, the board installation was related only to
a subsequent task to be performed by the welders, providing a place
for them to put their welding equipment and supplies. If the
Avilas are correct about the two distinct operations, then by
definition the task of installing boards for the welders was not
part of removing the old insulation, the work to which Marcos’s
task was limited. Even if, in this latter alternative, Millennium
has assumed control of laying down the boards, it would have had no
duty to Marcos to place boarding on the scaffolding prior to his
performing the insulation removal tasks assigned to him. Such a
duty would run only to the welders, and even then vis-à-vis their
equipment and not their safety. Consequently, scaffolding and
harnesses were the only safety features on which Marcos and the
other employees who worked to remove the old insulation were meant
to rely. And if, as found by the jury, Millennium had not retained
control over Anderson’s employees’ work on the insulation removal
job, then Millennium would have owed no duty and had no liability
to Marcos.
III. Conclusion
Given the state of the entire record, either theory of the
case advanced by the parties makes the first interrogatory
sufficient as to the issue to be decided by the jury. Laying down
boarding on the scaffolding was, like erecting the scaffolding,
either (1) a safety-related task inherent in the larger job of
removing the insulation, a job for which the jury found Millennium
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had not assumed supervisory responsibility, or (2) an unrelated,
subsequent task to be performed for the benefit of the welders and
therefore not a safety feature on which Marcos and other similarly
situated employees of Anderson were entitled to rely to prevent
falls such as the one suffered by Marcos. It follows that, either
way, the wording of the interrogatory satisfactorily captured the
question the jury was to decide, i.e., whether Millennium exercised
supervisory control over the work, and thus the safety decisions,
involved in the job comprising Anderson’s —— and therefore Marcos’s
—— participation in the removal of the insulation. The omission of
specific reference to laying down boarding, in addition to
reference to removal of insulation, was not error. Therefore, the
judgment of the district court is, in all respects,
AFFIRMED.
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