United Scaffolding, Inc. v. James Levine
537 S.W.3d 463 (2017)
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Rule of Law:
A claim against a contractor for an injury caused by a dangerous condition on a premises, where the contractor retained a sufficient right to control the premises, sounds in premises liability, not general negligence, and requires specific jury findings on the elements of premises liability to support recovery.
Facts:
- On December 26, 2005, James Levine, a pipefitter employed by Valero Energy Corporation, was working an overtime shift in Valero’s Port Arthur refinery’s alkylation unit.
- Levine was on a scaffold constructed by United Scaffolding, Inc. (USI), a contractor Valero hired to build and maintain scaffolds at the refinery.
- Levine alleges he slipped on an unsecured piece of plywood, causing him to fall through a hole in the scaffold platform and suffer a neck injury.
- USI had assembled the scaffold approximately one week before Levine’s fall, and its representatives were not present on the date of, or at least three days preceding, Levine’s fall.
- Both USI’s and Valero’s scaffold policies, in compliance with OSHA regulations, required USI to inspect the scaffolds before each work shift and before each use.
- Valero’s policy mandated that USI ensure that scaffold users were trained, and that USI inspect each scaffold before allowing 'affected employees' to begin work.
- Valero employees were not authorized to use USI-constructed scaffolds without USI's permission, which was given via an updated inspection tag.
Procedural Posture:
- James Levine filed suit against United Scaffolding, Inc. (USI) in a state trial court, claiming USI improperly constructed a scaffold and failed to remedy or warn of a dangerous condition.
- The case was tried before a jury for the first time in December 2008, where the trial court submitted a general-negligence question (offered by USI), and the jury found USI 51% negligent and Levine 49% negligent, awarding Levine $178,000 for future medical expenses.
- Levine filed a motion for new trial, asserting the verdict was against the great weight and preponderance of the evidence, which the trial court granted.
- USI filed a petition for writ of mandamus in the Ninth Court of Appeals, arguing the trial court abused its discretion by ordering a new trial, but relief was denied.
- USI then filed a petition for writ of mandamus in the Texas Supreme Court, which conditionally granted the writ, directing the trial court to specify its reasons for the new trial.
- The trial court amended its order, but USI again sought mandamus relief, which the court of appeals again denied.
- USI filed a second petition for writ of mandamus in the Texas Supreme Court, which conditionally granted the writ, directing the trial court to amend the new trial order to include only specific and valid reasons.
- The trial court amended its order for a second time, and USI did not file a third petition for writ of mandamus.
- The case was tried for a second time in February 2014, with the trial court again submitting a general-negligence question to the jury (without objection from USI).
- The second jury allocated 100% responsibility to USI and awarded Levine nearly $2 million in damages.
- USI filed a motion for new trial and a motion for judgment notwithstanding the verdict (JNOV), arguing for the first time that the general-negligence question was improper because Levine’s claim sounded in premises liability; the trial court denied both motions.
- USI appealed to the Court of Appeals, raising two issues: (1) improper submission under a general-negligence theory, and (2) whether the new trial order was improperly granted; the court of appeals affirmed the trial court’s judgment.
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Issue:
Does a pipefitter's claim against a scaffolding contractor for an injury resulting from an unsecured piece of plywood on a scaffold, where the contractor had an ongoing duty to inspect and authorize use, sound in premises liability, requiring specific jury submissions, or general negligence?
Opinions:
Majority - Justice Green
Yes, Levine's claim against USI sounds in premises liability. The court held that Levine's alleged injury resulted from a physical condition on the property (a hole covered by unsecured plywood), rather than a contemporaneous negligent activity. This type of 'slip-and-fall' case has consistently been treated as a premises defect cause of action. The court further determined that USI, as a contractor, retained a sufficient right to control the scaffold, even without physical presence, by virtue of its contractual obligation to construct, inspect, modify, and dismantle the scaffolds, and Valero’s policy requiring USI’s authorization (via inspection and tagging) before its employees could use the scaffolds. Because USI maintained this right to control, it owed a premises duty to Levine as an invitee—a duty to make safe or warn against unreasonably dangerous conditions. Therefore, Levine’s claim should have been submitted to the jury with specific premises liability elements (Corbin elements), not merely as a general-negligence question. The failure to obtain findings on these essential premises liability elements means Levine waived his claim and cannot recover. The court also concluded that USI properly preserved error by raising the improper submission in a motion for judgment notwithstanding the verdict and did not waive the argument by failing to object, as a defendant has no obligation to correct a plaintiff's omission of an independent theory of recovery.
Dissenting - Justice Boyd
No, Levine’s claim does not necessarily sound only in premises liability. The dissent argues that the majority misstates the standard of review, the pleadings, and the evidence. The proper standard of review requires showing 'no evidence' supported the ordinary-negligence submission, which USI failed to do. Levine's petition included general negligence claims that did not depend on USI controlling the scaffold at the exact time of the accident, such as negligent construction. The evidence presented at trial established that USI was only required to inspect scaffolds when Valero requested it, that Valero carpenters could also inspect and update tags, and that USI needed Valero's permits to access the scaffolds. This suggests USI did not retain control over the scaffold at the time of the accident. Therefore, Levine's claim could properly be one for ordinary negligence. Furthermore, even if the claim were premises liability, USI waived its complaint by failing to object to the defective jury charge, which included a broad-form negligence question but omitted premises liability instructions, and invited the error by proposing the general-negligence question in the first trial.
Analysis:
This case significantly clarifies the boundaries between general negligence and premises liability, particularly for contractors who build and maintain structures on another's property. It reinforces that the 'right to control' a premises condition, rather than physical presence or exclusive control, dictates the applicable duty and the required elements for jury submission. Future litigants must carefully characterize claims and ensure jury questions align precisely with the established legal theory, as the failure to submit premises liability elements when applicable can be fatal to a plaintiff's case, even if a jury finds negligence. This ruling also solidifies the procedural burden on plaintiffs to secure proper jury findings for their chosen theory of recovery, relieving defendants of the duty to correct an opponent's omitted or incorrect submission.
