Lippert Components, Inc. v. Quinton Williams

Opinion issued May 1, 2025

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-22-00501-CV

———————————

LIPPERT COMPONENTS, INC., Appellant

V.

QUINTON WILLIAMS, Appellee

On Appeal from the 40th District Court

Ellis County,1 Texas

Trial Court Case No. 97958

1

The Texas Supreme Court transferred this appeal from the Court of Appeals for the

Tenth District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing

transfer of cases between courts of appeals). Under the Texas Rules of Appellate

Procedure, “the court of appeals to which the case is transferred must decide the

case in accordance with the precedent of the transferor court under principles of

stare decisis if the transferee court’s decision otherwise would have been

inconsistent with the precedent of the transferor court.” TEX. R. APP. P. 41.3. The

parties have not cited, nor has our research revealed, any conflict between the

precedent of the Tenth Court of Appeals and that of this court on any relevant issue.

OPINION

Appellant, Quinton Williams, was injured while working at Kinro Texas,

Inc.’s (Kinro) facility in Waxahachie, Texas. Williams sued numerous entities,

including Kinro and Kinro’s parent corporation, appellee Lippert Components, Inc.

(Lippert), asserting various negligence-based causes of action, premises liability,

and products liability. Trial proceeded against Kinro and Lippert. Following jury

selection, Williams nonsuited his claims against Kinro pursuant to the parties’ Rule

11 agreement and tried the case against Lippert on negligence and negligent

undertaking claims.

The jury found both Williams and Lippert negligent, and it apportioned 5%

responsibility to Williams and 95% responsibility to Lippert. The jury awarded

Williams $1,599,684.41 in total damages, including $87,600.00 for past pain and

suffering, $613,200.00 for future pain and suffering, $87,600.00 for past physical

impairment, $613,200.00 for future physical impairment, and $198,084.41 in future

medical care expenses. The trial court rendered judgment on the jury’s verdict,

taking into account Williams’s 5% contributory negligence.

In five issues, Lippert contends that (1) the trial court erred in submitting

general negligence and negligent undertaking claims to the jury; (2) Williams’s

claims are barred by the exclusive remedy of the Texas Workers’ Compensation

2

Act;2 (3) the evidence was legally and factually insufficient to support the jury’s

award of future medical expenses; (4) the trial court erred in denying Lippert’s

motion to designate Kinro as a responsible third party and refusing to submit Kinro’s

proportionate responsibility to the jury; and (5) the trial court erred in refusing to

submit jury questions and instructions on the application of the exclusive remedy

defense and whether Lippert exercised control over specific safety aspects that led

to Williams’s injury.

We reverse and render.

Background

A. Parties Overview

In 2015, Williams was employed by Diversified Sourcing Solutions

(Diversified), a temporary staffing company. He was assigned as a temporary

worker to Kinro’s facility in Waxahachie, Texas. Kinro is a subsidiary of Lippert.

Lippert manufactures component parts used in industries such as manufactured

housing, recreational vehicles, and automotive. In 2010 or 2011, Kinro transferred

the assembly line and equipment from its Georgia facility to its facility in

Waxahachie.

Williams’s injury occurred on August 28, 2015. Williams was unloading

glass sheets from an “L-cart.” When some of the sheets began to fall, Williams

2

See TEX. LABOR CODE ANN. § 411.004.

3

reached out to try to stop them. One of the sheets broke and cut his arm, severing

two arteries, nerves, tendons, and ligaments. He was flown by helicopter to Baylor

University Medical Center in Dallas where he underwent emergency surgery to

repair the severed arteries.

B. Pleadings and Pretrial Proceedings

In 2017, Williams sued Lippert and Kinro, among other defendants, in Travis

County, Texas. Kinro moved to transfer venue to Ellis County, Texas, which the

trial court granted.3

Williams’s Fifth Amended Petition was the live pleading at the time of trial.

Relevant here, Williams alleged:

Defendant LIPPERT COMPONENTS undertook responsibility for

safety at the Facility. In doing so, LIPPERT COMPONENTS knew or

should have known these services were necessary for PLAINTIFF’S

safety. LIPPERT COMPONENTS failed to exercise reasonable care

in performing those services increasing PLAINTIFF’S risk of harm. In

particular, LIPPERT COMPONENTS was negligent in the following

respects:

1. In failing to inspect the premises for dangerous conditions

and/or hazards located on the premises;

2. In failing to remedy the dangerous condition and/or hazard

that it knew of, or in the exercise of ordinary care, should have

known was present on its premises;

3. In failing to warn of the dangerous condition and/or hazard

located on said premises;

3

Lippert filed a special appearance after the case was transferred. Lippert did not set

its special appearance for hearing but never withdrew it.

4

4. In failing to equip the cart made the basis for suit with brakes

and/or other safety devices; and

5. In more particularity to be shown at trial.

Each and all of the above and foregoing acts on the part

of . . . LIPPERT COMPONENTS . . . constituted negligence and were

each and all a proximate cause of the occurrence in question and the

injuries and damages suffered by PLAINTIFF.

C. Trial

Lippert and Kinro were the only remaining defendants at the start of trial and

were represented by the same trial counsel. Trial began in May 2021 and lasted five

days.

Following jury selection, Lippert’s counsel asked Williams to nonsuit Kinro,

and Williams agreed as part of a negotiated agreement. The parties’ Rule 11

agreement filed on May 24, 2021 states:

• Plaintiff will dismiss Kinro Texas, Inc. with prejudice;

• Lippert Components, Inc. stipulates that it will not argue or

claim that it was a client of Diversified

• Plaintiff stipulates that Lippert Components, Inc. had a valid

workers’ compensation policy at the time of Plaintiff’s accident

• Nothing in this agreement precludes either Kinro Texas, Inc. or

Lippert Components, Inc. from pursuing in a separate action any

claims for defense or indemnification against Diversified

Williams abandoned his products liability and premises liability claims against

Lippert during trial.

5

1. Kashena Williams

Kashena, Williams’s wife, testified that Williams was not the same after his

accident. He once enjoyed playing football, basketball, and baseball, but since the

accident, he no longer plays sports or video games with his son. She testified that

after the accident, Williams was always angry, sad, or nervous, and his depression

affected their marriage. Kashena testified that Williams is unable to do some of the

chores he previously did such as bringing in groceries, mowing the yard, and

washing the cars. Williams underwent physical therapy and rehabilitation after the

accident and eventually began a new job. Williams still comes home from work in

pain every day.

2. Hector Monreal

Monreal was hired by Kinro Composites as a safety administrator in 1999.

His job duties later expanded to include human resources and payroll.

Monreal began working for Lippert in 2010 or 2011. He testified that “Lippert

had safety corporate people that were EHS, Environmental, Health and Safety that

would visit” the Waxahachie facility and “different safety coordinators from Lippert

contact[ed] him for different occasions.”

Monreal testified that Williams had only been assigned to the Waxahachie

facility a few weeks prior to the accident. He stated that a new worker such as

Williams received personal protective equipment (PPE) and on-the-job training by

6

one of the line workers or supervisors of the department to which he was assigned.

Monreal did not provide any safety training to Williams, and he did not witness the

accident that injured Williams. Based on information he received from Williams’s

supervisor, Mariano Salazar, and witness interviews he conducted, including an

interview with Williams, Monreal submitted an accident report. The report

identified the two causes of the accident as Williams’s failure to wear PPE and the

fact that the L-cart he was using at the time of the accident did not have brakes.

Monreal stated that he was not responsible for inspecting equipment at the

Waxahachie facility or determining whether it was safe. He agreed that the job of

handling the glass plates could be dangerous, and that it was possible that the L-cart

would not have rolled if it had been equipped with brakes.

Monreal testified that safety manuals were posted and that it was possible that

new employees were advised where to find them if they needed them. He testified

that Kinro employees at the Waxahachie facility supervised Williams’s day-to-day

duties and scheduled his hours. Williams was responsible for wearing his PPE which

was made available to all employees. When asked who he believed was operating

the Waxahachie facility in 2015, Monreal answered Lippert.

3. Dr. Jennifer Chu

Dr. Chu is an orthopedic surgeon who operated on Williams following the

accident. She testified that he sustained lacerations to his forearm which severed the

7

ulnar and radial arteries. Williams underwent emergency vascular surgery to stop

the bleeding and repair the damaged blood vessels to prevent the loss of his arm. Dr.

Chu performed two surgeries: the first involved opening his wounds to determine

the extent of the damage and repair the multiple lacerated tendons, muscles, and

nerves, and the second was to ensure the nerve repair was intact and to remove scar

tissue from the tendons.

Dr. Chu remained Williams’s primary orthopedic surgeon for the next couple

of years. Dr. Chu testified that she prescribed several pain medications for Williams,

including hydrocodone and gabapentin for neuropathic pain, and physical therapy.

She stated that Williams sustained permanent loss of hand function and began seeing

a psychologist to address the emotional impact from the loss. Dr. Chu testified that

she did not believe Williams could return to a manual labor job due to the injuries to

his right hand and arm. After nearly a year off work, Williams was released to return

to work with a permanent restriction.

4. Dr. Jason Marchetti

Dr. Marchetti is a board-certified life care planner whom Williams designated

as an expert witness.4 He described life care planning as the process of identifying

the reasonable medical goods and services an individual who has been injured would

4

Dr. Marchetti is also board certified in physical medicine rehabilitation and

interventional regenerative orthopedic medicine.

8

likely require over the course of his lifetime. He testified that a life care plan is a

guide for future treatment and not a prescription of care. According to Dr. Marchetti,

life care planning has four goals: (1) minimize pain and suffering, (2) reduce the

chance of complications, (3) increase the ability to function and quality of life, and

(4) determine the cost of medical good and services.

To prepare a life care plan for Williams, Dr. Marchetti reviewed relevant

documents, including Williams’s medical records, and evaluated Williams in

September 2019. He then formulated the diagnoses associated with Williams’s

injuries and determined the likely duration of his care. Because Williams sustained

a permanent injury, Dr. Marchetti estimated his life expectancy to determine which

future medical goods and services would be reasonable to accomplish the plan’s four

goals.

Based on his evaluation of Williams and medical record review, Dr. Marchetti

identified five diagnostic conditions: (1) lacerations to the forearm with vascular

injuries, (2) complete median nerve laceration, (3) a finding of residual sensory

deficit resulting in hypersensitivity, weakness, and pain, (4) extensive contractures

(bending) and stiffening of the fingers limiting flexion, and (5) reactive depression

with mixed anxiety and depression as a result of the injuries. Dr. Marchetti testified

that these conditions impacted Williams’s ability to engage socially, such as playing

sports and fishing, and his work-related activities both at home and at his job.

9

Using the National Vital Statistics System, Dr. Marchetti determined that the

average life expectancy for someone Williams’s age was thirty-seven years. He then

determined which medical goods and services he believed would benefit Williams,

their duration, and how frequently he would need them in the future. Dr. Marchetti

prepared a written report, which the trial court admitted into evidence, that identified

five categories of future medical care he anticipated Williams would require:

• physician services (e.g., outpatient doctor appointments or procedures);

• routine diagnostics (e.g., imaging studies and nerve conduction testing);

• medication;

• rehabilitation services (e.g., physical and psychological therapy); and

• acute care services (e.g., hospitalization, surgery).

Dr. Marchetti projected that Williams would incur $16,544.57 in “physician

service costs,”5 which was derived from the eightieth percentile of healthcare

charges in Williams’s geographic location. Dr. Marchetti anticipated that the

doctors who would treat Williams in the future would order “routine diagnostic

5

The physician services listed in Dr. Marchetti’s report consist of plastic hand

surgery, consultation with a plastic hand surgeon, and physical medicine and

rehabilitation, with each service beginning at various ages, with varying frequency,

and lasting between two and twenty-seven years.

10

testing”6 of Williams, for which he projected a total cost of $16,656.03. He

anticipated that Williams would require prescription medication to manage his nerve

pain and depression in the future. Based on the average price of the medication in

Williams’s geographical region, he projected $100,109.73 in total medication costs.7

Dr. Marchetti testified that he anticipated that Williams would need rehabilitation

services8 and projected a total cost of $44,996.96 for those services. Dr. Marchetti

anticipated that Williams would undergo surgical procedures to eliminate scar tissue

and pain and reduce the likelihood of developing complications in the future, and he

projected a total cost of $19,777.12 in acute care services.9 Dr. Marchetti testified

that he anticipated total future medical costs of $198,084.41. He opined that if

Williams “doesn’t get these things, then obviously he’s probably not going to

achieve those goals.”

6

The routine diagnostic tests listed in the report are EMG nerve conduction testing,

MRI scan, and hand and wrist x-rays at varying intervals and with a duration of

between one and thirty-seven years.

7

The prescription medications listed in the report are Lyrica, NSAID: Ibuprofen, and

Cymbalta.

8

The rehabilitative services in the report consist of post-operative occupational

therapy, cognitive behavioral therapy, and periodic occupational therapy at differing

intervals, with a duration of between one and thirty-five years.

9

The acute care services listed in the report consist of an operation for “Scar revision:

Arm” and an operation for “Extensor contracture release with tenolysis: hand or

finger.”

11

On cross-examination, Dr. Marchetti testified that he is not one of Williams’s

treating physicians. He examined Williams only once in September 2019, when

Williams was thirty-seven years old, and he had not evaluated Williams since he

submitted his report in January 2020. Dr. Marchetti testified that the last medical

treatment that Williams received was in mid-2018.

Williams’s life care plan identified thirty-eight years as the age at which it

would be reasonable for Williams to receive some of the medical care listed in the

plan.10 He testified that he had not seen any medical records showing that Williams

had plastic hand surgery, physical medicine and rehabilitation, or the surgeries listed

in the life care plan to date. Dr. Marchetti testified that Lyrica, NSAID Ibuprofen,

and Cymbalta were the medications that he “projected as being reasonably

probable.” Dr. Marchetti was not aware that Williams had testified at his deposition

that he had taken Lyrica but did not like taking it due to the side effects, and he did

not want to take it again. Dr. Marchetti acknowledged that Lyrica accounted for

approximately $95,000.00 of the $198,000.00 in total future medical costs. He

testified that Williams was not taking any antidepressants at the time of trial and had

10

Under the column “Begin at Age,” the report lists thirty-eight years of age for the

following medical treatment/medication: plastic hand surgery, physical medicine

and rehabilitation, EMG/NCS: Upper Extremity, MRI scan, Arm x-ray, Wrist x-ray,

Lyrica, NSAID: Ibuprofen, Cymbalta, post-operative occupational therapy and

cognitive behavioral therapy, and operations for scar revision and extensor

contracture release with tenolysis: hand or finger.

12

not received occupational therapy or cognitive behavioral therapy. Dr. Marchetti

was then asked whether Williams was taking any prescribed medications at the time

of trial:

A. Well, again, I should clarify, I don’t know what he’s doing today.

I can just tell you that what he was taking when I saw him was

[I]buprofen.

Q. Right. And that’s the point. You don’t know what Mr.

Williams’[s] medical condition is today, do you, sir?

A. No, I don’t.

On re-direct, Dr. Marchetti testified that the fact that Williams had not

received certain treatments or taken the medication listed by Dr. Marchetti did not

mean that he did not need them. In his opinion, “it would behoove [Williams] to

address [his conditions] sooner rather than [ten] or twenty years from now.”

5. Quinton Williams

Williams and Kashena had been married more than twenty years and had three

children together. Williams attended college but later left when Kashena became

pregnant with their first child.

Williams testified that he was previously employed by Diversified as a

temporary worker. Diversified assigned Williams to Kinro. When he arrived at the

Waxahachie facility, he met Monreal, who gave him paperwork to fill out.

Afterwards, his supervisor, Salazar, led him to the production floor. There, Salazar

took him to a specific line and told Williams to stand at the end of the line and place

13

completed window frames onto a cart to be ready for shipping. Williams testified

that he did not receive any written safety materials or watch any safety videos, and

he did not receive any safety or job training while he worked at Kinro. Williams

testified that he was given a Kevlar sleeve and told to wear it on the production floor.

He was not told how to handle glass or that he should let falling glass drop to the

floor.

On August 28, 2015, Williams was at his assigned station on the production

floor. He testified that a supervisor approached and told him that he was needed in

the vinyl punch department. After an hour or two in that department, the supervisor

returned and sent him back to the window frame department. Williams testified that

the supervisor and other employees gathered for a brief meeting on the floor. The

plant manager informed them that the line lead would not be working with them for

the rest of the day, and that an employee from another department would come to

occasionally check on them.

Five minutes later, Williams was told that he was needed to pull glass to help

fulfill an order. The job entailed taking large pieces of freshly cut glass that were

held in place by a dog chain encased in a garden hose on an L-cart and placing them

on a flat cart. No one told Williams how to handle the glass or use the L-cart. He

estimated that one glass sheet weighed between twenty-five and thirty-five pounds.

With the L-cart in front of him and the flat cart to his left, Williams began handling

14

the glass. As he was placing two or three glass plates down, he turned toward the

L-cart and saw the glass falling forward. Instinctively, he reached out to try and

catch the falling glass and called for help to lift the plates off of his arm. Williams

heard someone scream “drop it.” After Williams dropped the glass, he looked down

and saw blood squirting profusely from his arm.

Salazar took him to the bathroom where he applied a tourniquet while they

waited for emergency medical services. Williams was taken by Life Flight

helicopter to the hospital where he underwent emergency surgery. Williams testified

that he had a total of three surgeries. He continued taking hydrocodone for the pain

and went to physical therapy and rehabilitation for more than two years. Williams

testified that he went into a deep depression due to not being able to work, and that

it affected his marriage.

Williams testified that he returned to work as soon as he was released to do

so. Although his current job is easier than the one he had at Kinro, he still comes

home in pain. He is no longer able to play sports, fish, or play video games with his

son. He testified that he still experiences pain and has numbness from his middle

finger to his thumb.

On cross-examination, Williams testified that Kinro issued him a Kevlar

sleeve and that Kinro employees told him which job to do as well as the hours he

was required to work. He stated that he should have been wearing the Kevlar sleeve

15

while working with the glass, but he was not wearing it at the time of the accident.

He testified that he did not ask any of the employees for instructions on how to do

the job moving glass or look to see whether the L-cart he was using had brakes.

Williams testified that he had not received any medical treatment or taken any

prescription medication, including antidepressants, for his injuries in the previous

three years.

6. Ricky Seward

In 2015, Seward worked for Lippert as an EHS Senior Manager. He was

responsible for multiple Lippert divisions. In his role, Seward visited the Kinro

Waxahachie facility and conducted safety audits to help Kinro recognize, evaluate,

and eliminate risks. He also made recommendations to Kinro to ensure the facility’s

compliance.

Seward conducted the initial safety audit at the Waxahachie facility in Spring

2015, before Williams’s accident on August 28, 2015, and conducted quarterly

safety audits thereafter. He testified that he was in charge of ensuring that Kinro

facilities, including the Waxahachie facility, had the proper up-to-date safety

policies and procedures in place and that the facility was in compliance. Seward

testified that he did not have a role in the day-to-day operations of the Kinro facility,

and Kinro employees were responsible for the hiring, firing, supervising, and

16

training at the facility. Monreal was the head of safety at the Waxahachie facility in

2015.

Seward agreed that Lippert instituted certain safety policies and procedures to

protect the people who worked in the facilities:

Q: So they’ve undertaken the responsibility making sure that each

of their divisions operates safely, correct?

A: Correct.

Seward also testified that he reported back to his boss, Erick Click, after every

trip to the Waxahachie facility. He stated that Lippert was aware of the status of

safety issues at Kinro’s Waxahachie facility through his reporting, and if Kinro did

not address safety issues, he could influence local management at the facility by

going over their head to Click. Further, if there was a serious safety issue he could

go to Lippert’s Chief Executive Officer, Jason Lippert, to influence local

management to correct the issue, but he had never done that to date. Seward testified

that, in 2015, the sign outside the Waxahachie facility bore the names Lippert and

Kinro.

Seward testified that Lippert’s safety manual is provided to all of its divisions.

Lippert advised Kinro to make the manual available to every worker, including

temporary workers like Williams, at its Waxahachie facility. He testified that

Lippert did not confirm whether Kinro had done so, and Lippert did not provide the

manual to workers at the Waxahachie facility. Seward testified that a safety video

17

was available for new workers, but he did not know whether Williams was shown

the video. He testified that Kinro is supposed to provide new workers with the safety

manual and ask that they read it and sign an acknowledgement page, and local

management should have reviewed the thirteen topics in the safety manual with

Williams. He testified that Williams needed safety training before working with the

glass, and Williams’s supervisor or a more experienced worker should have provided

him with job training. When he visited the Waxahachie facility, Seward asked local

management how many new hires they had and to see the signed acknowledgements,

but he did not review the acknowledgments to match them to the new hires. He

agreed that if Williams did not get safety training and job training, his risk of injury

would increase.

Seward testified that he became involved in the investigation of Williams’s

accident and submitted a report to the Occupational Safety and Health

Administration (OSHA). In the report, Seward identified the “root cause” of the

accident as the weight of the glass shifting forward causing the L-cart to move

backward and away from Williams. According to Seward, a brake, or wheel chock,

on the L-cart would have reduced the risk of injury and made the job safer.

On cross-examination, Seward explained that Lippert’s safety manual

contains guidelines, but Lippert cannot force Kinro to follow them. Kinro

management decides how to implement the guidelines and whether to make the

18

safety manual available to workers. Seward testified that a failure to give the safety

manual to workers or provide job training to them would be a failure on Kinro’s part,

not Lippert’s. Further, Kinro decided where an employee worked, when to begin

work, the length of his shift, the PPE and equipment provided, and the method and

manner in which the employee would accomplish his job. He testified that Kinro

employees, not Lippert employees, are in charge of safety at the Waxahachie facility.

He stated that Monreal was mistaken when he testified that he worked for Lippert.

7. Jill Smith

Smith worked in Kinro’s Human Resources department in 2015. In this role,

she handled insurance issues and issued payroll. She testified that Lippert’s name,

not Kinro’s, appears on employees’ paychecks. Smith testified that a Kinro

employee would have supervised Williams and controlled the day-to-day details of

his work.

8. Russ Elveston

Elveston is a safety engineer whom Williams designated as an expert.

Elveston worked for OSHA for thirty years before retiring to start his own safety

consulting business. He reviewed the deposition testimony of Monreal, Salazar, and

Seward as well as Lippert’s safety manual in formulating his opinions.

According to Elveston, there was no evidence that Williams had received any

training before he began working at the Waxahachie facility. He testified that

19

Lippert’s safety manual contained no safe work practices or procedures for

Williams’s job. There was no evidence that Lippert tracked the training that its

workers received. The Lippert safety manual stated that Kinro should review its job

safety and health analysis (JSA) yearly for each position. A JSA identifies all the

potential hazards of a job and sets out the steps to minimize an employee’s exposure

to a hazard. Elveston testified that he saw no evidence of a JSA for the jobs that

Williams performed at the Waxahachie facility. He testified that, based on his

review of the relevant materials, Lippert retained the responsibility for the safety and

health at the Kinro Waxahachie facility. He reviewed the root cause analysis in the

OSHA report submitted by Seward and described it as “shallow” and “not serious.”

9. Mariano Salazar

Salazar was an assistant production manager and Williams’s supervisor at the

Waxahachie facility in August 2015. He testified that Kinro provided safety training

and his team leaders at the facility provided on-the-job training to Williams. He

testified that Kinro controlled the day-to-day details of Williams’s job. He believed

that the L-carts at the Waxahachie facility—like the one Williams was using at the

time of his accident—should have been equipped with brakes. He testified that the

L-carts that were used in Lippert’s Indiana facility had brakes. Without the brakes,

the L-carts were dangerous. He testified that if he sees a worker without a Kevlar

20

sleeve on the production floor, he tells the worker’s line leader. He testified that

Monreal was the on-site safety manager at the Waxahachie facility in 2015.

10. Clark Mitchell

Mitchell was Kinro’s general manager. He testified that when Kinro’s facility

in Georgia closed, its assembly line, including carts, was transferred to Kinro’s

Waxahachie facility. He characterized it as a transfer of assets through the books

from Kinro’s Georgia facility to its Texas facility.

11. Shawn Lewis

Lewis is Lippert’s Vice President and General Counsel. He testified that

Kinro built the L-cart for the company’s internal use only. When Kinro’s Georgia

facility closed, Kinro transferred its equipment, including the carts, to its Texas and

Alabama facilities.

D. Directed Verdict

At the conclusion of testimony, Lippert moved for a directed verdict on two

grounds: (1) it owed no duty to Williams and therefore he could not prevail on his

negligent undertaking claim, and (2) Lippert was entitled to the exclusive remedy

defense under Texas Labor Code section 408.001 which barred Williams’s claim.

The trial court denied Lippert’s motion.

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E. Charge Conference

Lippert objected to the jury charge and amended its proposed charge to

include a question asking whether Kinro was a responsible third party on both the

liability and proportionate responsibility questions. After the charge conference,

Lippert’s counsel re-urged his verbal responsible third-party motion that he

“previously made off record” and asked the trial court, “is that motion denied?” The

trial court responded, “[i]t’s denied primarily because of the Rule 11 Agreement.”

F. Jury Findings and Verdict11

Question 1 of the trial court’s jury charge asked the following:

“Did the negligence, if any, of those named below proximately cause

the injury in question?”

The charge defined negligence generally and instructed:

The term “negligence” when used with respect to the conduct of Lippert

Components, Inc. (Lippert) has a specific meaning. Lippert was

negligent only if: (i) Lippert exercised specific control over the specific

aspect of safety that is alleged to have caused Quinton Williams’[s]

injury; (ii) Lippert failed to exercise reasonable care in exercising that

specific control; and (iii) either Quinton Williams relied on Lippert’s

exercise of specific control, or Lippert increased Quinton Williams’[s]

risk of harm in exercising such specific control.

It further instructed:

11

A jury submission for a negligence claim predicated on a negligent undertaking

theory requires a broad-form negligence question accompanied by instructions

detailing the essential elements of an undertaking claim. Nall v. Plunkett, 404

S.W.3d 552, 555 (Tex. 2013) (citing Torrington Co. v. Stutzman, 46 S.W.3d 829,

838–39 (Tex. 2000)).

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You are instructed that a parent company does not have a general duty

to provide a safe workplace. A parent company is not liable for the

obligations of its subsidiary unless it actually controls the specific

aspect of safety that is alleged to have caused the Plaintiff’s injury.

You are further instructed that under the law, a parent company does

not undertake to perform a safety-related service of its subsidiary based

solely on its right to control general operations of the workplace.

Quinton Williams ____________

Lippert Component, Inc. ____________

The jury found both Lippert and Williams negligent, and it apportioned 95%

responsibility to Lippert and 5% responsibility to Williams. The jury found

Williams’s total damages to be $1,699,684.41 in the following amounts:

a. Physical pain and mental anguish sustained in the past.

Answer: 87,600.00

b. Physical pain and mental anguish that, in reasonable probability,

Williams will sustain in the future.

Answer: 613,200.00

c. Physical impairment sustained in the past.

Answer: 87,600.00

d. Physical impairment that, in reasonable probability, Williams will

sustain in the future.

Answer: 613,200.00

e. Medical care expenses that, in reasonable probability, Williams

will incur in the future.

23

Answer: 198,084.41

The trial court signed the final judgment based on the jury’s verdict, taking

into account Williams’s 5% contributory negligence. The judgment stated, in

relevant part:

At the time of trial, [Williams’s] live pleadings asserted a claim for

negligent undertaking against [Lippert Components] . . . . The verdict

of the jury found [Lippert Components] 95% at-fault for negligent

undertaking and found [Williams] 5% at-fault for negligence.

Based on the jury’s findings, the judgment awarded the following amounts to

Williams, totaling $1,519,700.19:

• $83,220.00 for physical pain and mental anguish sustained in the

past;

• $582,540.00 for physical pain and mental anguish that, in

reasonably probability, Williams will sustain in the future;

• $83,220.00.00 for physical impairment sustained in the past;

• $582,540.00 for physical impairment that, in reasonable probability,

Quinton Williams will sustain in the future; and

• $188,180.19 for medical care expenses that, in reasonably

probability, Quinton Williams will incur in the future.

The judgment further awarded Williams pre- and post-judgment interest and court

costs.

Lippert moved for a new trial, which the court denied on May 23, 2022. This

appeal followed.

24

Submission of Negligent Undertaking Claim

In its first issue, Lippert contends that the trial court erred in submitting

general negligence and negligent undertaking claims to the jury because, as Kinro’s

parent company, Lippert did not owe or undertake a duty to ensure the safety of its

subsidiary’s employees. It further argues that the evidence presented at trial was

legally and factually insufficient to support the jury’s determination that Lippert

exercised specific control over the specific aspects of safety of Kinro’s Waxahachie

facility that caused Williams’s injury. In response, Williams contends that the record

is replete with evidence of Lippert’s role overseeing safety at Kinro. He asserts that

Lippert owed him a duty because it undertook extensive responsibility for safety at

Kinro, he and Kinro relied on Lippert’s undertaking, and Lippert made the danger

worse.

A. Standard of Review

In conducting a legal sufficiency review, we view the evidence in the light

most favorable to the verdict, disregarding all evidence and inferences to the

contrary. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003); Lee

Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). We may sustain

a legal sufficiency, or no-evidence, point if the record reveals one of the following:

(1) the complete absence of a vital fact, (2) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact, (3) the

25

evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence

established conclusively the opposite of the vital fact. See Shields Ltd. P’ship v.

Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). If more than a scintilla of evidence

exists, it is legally sufficient. Lee Lewis Constr., 70 S.W.3d at 782. More than a

scintilla of evidence exists if the evidence furnishes some reasonable basis for

differing conclusions by reasonable minds about the existence of a vital fact. Id. at

782–83.

In reviewing the factual sufficiency of the evidence, we consider all of the

evidence in the record in a neutral light and set aside the fact findings only if they

are so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When an appellant

challenges an adverse finding on an issue on which it did not have the burden of

proof at trial, we set aside the verdict only if the evidence supporting the finding is

so weak as to make the verdict clearly wrong and manifestly unjust. Cain, 709

S.W.3d at 176; see also Four J's Cmty. Living Ctr., Inc. v. Wagner, 630 S.W.3d 502,

516 (Tex. App.—Houston [1st Dist.] 2021, pet denied).

B. Duty Element

A negligence cause of action has three elements: (1) a legal duty, (2) breach

of that duty, and (3) damages proximately resulting from the breach. Elephant Ins.

Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022); Watanabe v. Summit Path

26

Partners, LLC, 650 S.W.3d 112, 125 (Tex. App.—Houston [1st Dist.] 2021, no pet.).

The existence of a legal duty by the defendant to the plaintiff is an essential element

of a plaintiff’s negligence claims. See United Rentals N. Am., Inc. v. Evans, 668

S.W.3d 627, 638 (Tex. 2023). If the defendant has no duty, then it cannot be held

liable for negligence. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525

(Tex. 1990). The threshold inquiry in a negligence case is whether a duty exists,

which “is a question of law for the court to decide from the facts surrounding the

occurrence in question.” Elephant Ins. Co., 644 S.W.3d at 145 (internal quotations

omitted). We review de novo a determination regarding whether a legal duty is

owed. See Black + Vernooy Architects v. Smith, 346 S.W.3d 877, 882–83 (Tex.

App.—Austin 2011, pet. denied).

Generally, Texas law imposes no duty to take action to prevent harm to others

absent certain special relationships or circumstances.12 See Torrington Co. v.

Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Phillips, 801 S.W.2d at 525; Garcia v.

Kellogg Brown & Root Servs., Inc., No. 01-19-00319-CV, 2020 WL 3820426, at *6

12

A special relationship exists between an employer and an employee, Greater

Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990), and an

employer has a duty to use ordinary care in providing a safe workplace, Kroger Co.

v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). See also Union Pac. R.R. Co. v. Nami,

498 S.W.3d 890, 896 (Tex. 2016) (noting, absent certain exceptions, that “an

employer’s duty to provide a safe workplace . . . always exists” (alteration in

original) (internal quotations omitted) (quoting Austin v. Kroger Tex., L.P., 465

S.W.3d 193, 201 (Tex. 2015)).

27

(Tex. App.—Houston [1st Dist.] July 7, 2020, no pet.) (mem. op.). However, one

who voluntarily undertakes an affirmative course of action for the benefit of another

has a duty to exercise reasonable care that the other’s person or property will not be

injured by the undertaking. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119–20

(Tex. 1976). A voluntary undertaking gives rise to liability for physical harm if the

actor fails to exercise reasonable care in performing the undertaking. See Elephant

Ins. Co., 644 S.W.3d at 151.

To establish a “negligent undertaking,” a plaintiff must show that (1) the

defendant undertook to perform services that it knew or should have known were

necessary for the plaintiff’s protection; (2) the defendant failed to exercise

reasonable care in performing those services; and either (a) the plaintiff relied upon

the defendant’s performance, or (b) the defendant’s performance increased the

plaintiff’s risk of harm. Nall, 404 S.W.3d at 555–56 (citing RESTATEMENT (SECOND)

OF TORTS § 324A (providing rule for liability to third person for negligent

performance of undertaking)). The critical inquiry concerning the duty element of

a negligent undertaking theory is whether a defendant acted in a way that requires

the imposition of a duty where one otherwise would not exist. See Elephant Ins.

Co., 46 S.W.3d at 151; see also Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex.

1982).

28

The Texas Supreme Court has held that in cases where a plaintiff alleges

negligence in maintaining a safe workplace, the plaintiff must show that the party it

asserts had a duty to provide a safe workplace had actual control or a right of control

over the specific aspect of the safety and security of the premises that led to the

plaintiff’s injury. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); Brooks

v. Nat’l Convenience Stores, Inc., 897 S.W.2d 898, 902–03 (Tex. App.—San

Antonio 1995, no writ). Parent corporations generally have no duty to control their

subsidiaries. See R&M Mixed Beverage Consultants, Inc. v. Safe Harbor Benefits,

Inc., 578 S.W.3d 218, 230 (Tex. App.—El Paso 2019, no pet.) (citing Lucas v. Tex.

Indus., Inc., 696 S.W.2d 372, 374 (Tex. 1984)). Only corporations that have the

right to control or actually control safety and security policies of the workplace have

a duty to the workers to maintain a safe workplace. See Tidwell, 867 S.W.2d at 23

(“We consider . . . the nature of the matters to which the right of control extends to

be determinative. We think that in a case alleging negligence in maintaining a safe

workplace, the court’s inquiry must focus on who had specific control over the safety

and security of the premises . . . .”); Morris v. Scotsman Indus., Inc., 106 S.W.3d

751, 754 (Tex. App.—Fort Worth 2003, no pet.). A court cannot infer a duty from

evidence showing actual control or a right of control over the general operation of

the workplace. Tidwell, 867 S.W.2d at 23; Morris, 106 S.W.3d at 754.

29

Here, Question 1 of the trial court’s charge instructed the jury that “Lippert

was negligent only if . . . Lippert exercised specific control over the specific aspect

of safety that is alleged to have caused . . . Quinton Williams’[s] injury.” Thus, to

impose a duty on Lippert, Williams had to put on evidence that Lippert exercised

specific control over the specific aspects of safety at Kinro’s Waxahachie facility

that caused Williams’s injuries.

Williams argues that Lippert owed him a duty because it undertook extensive

responsibility for safety at Kinro. In support of his assertion, he points to Seward’s

testimony that Lippert “undert[ook] responsibility making sure that each of [its]

divisions operates safely,” its “goal” was to institute safety at its various subsidiaries,

and Seward was in charge of ensuring that Lippert’s safety policies and procedures

were in place at its facilities. Evidence of a parent company’s general commitment

to workplace safety, however, does not demonstrate actual control or the right to

control the specific aspect of safety required to impose a duty. See Tidwell, 867

S.W.2d at 23; Morris, 106 S.W.3d at 755 (concluding testimony of subsidiary’s

manager—that subsidiary’s president reported to parent company’s Chief Executive

Officer and parent company had right to terminate subsidiary’s president and its

safety coordinator if his performance was inadequate—was evidence of parent

corporation’s general right of control over subsidiary’s operations but did not meet

Exxon standard requiring plaintiff to show that parent company had specific control

30

over safety and security of premises, in particular forklift licensing and safety

program); see also Mack v. RPC, Inc., 439 F. Supp. 3d 897, 902 (E.D. Tex. 2020)

(order) (applying Texas law and holding company’s issuance of safety policy stating

parent was “committed to providing a safe and healthy workplace” did not constitute

specific undertaking to ensure that employees at facility were protected from

accidents involving pipes).

Williams also focuses on Seward’s testimony that Lippert conducted quarterly

safety audits of its subsidiaries, it inspected the Waxahachie facility for hazardous

conditions and put plans in place to correct the hazards it observed, and it was aware

of the safety issues at Kinro. However, the evidence also shows that while Lippert

conducted safety audits at Kinro and its other subsidiaries, Seward testified that he

could only make recommendations to Kinro and could not force Kinro management

to follow the recommendations. He testified that Kinro, not Lippert, made the

decisions about whether to replace or repair a piece of equipment, the L-carts at the

Waxahachie facility were purchased by Kinro and maintained by Kinro employees,

and Lippert could not force Kinro to modify the carts, including equipping the carts

with brakes. Seward also testified that Lippert could not force Kinro to use a

particular method of stacking glass and that Kinro, not Lippert, decided the level of

cut resistance of the Kevlar sleeves its workers used and Lippert could not require

them to purchase a certain cut level. See Cleveland Reg. Med. Ctr., L.P. v. Celtic

31

Props., L.C., 323 S.W.3d 322, 351 (Tex. App.—Beaumont 2010, pet. denied)

(concluding tenant’s parent company did not owe duty to landlord and was therefore

not liable under negligent undertaking theory for tenant’s alleged failure to maintain

premises where parent company was not involved in tenant’s day-to-day operations,

tenant was responsible for maintenance and repairs of property, and landlord

presented no evidence showing parent company undertook to perform for landlord

with respect to the maintenance or repair of property); see also White v. Elcor Corp.,

No. 09-99-00381-CV, 2001 WL 359833, at *1–2 (Tex. App.—Beaumont Apr. 12,

2001, no pet.) (not designated for publication) (holding parent company had not

undertaken duty to provide safety for subsidiary’s employees; evidence showed that

although parent company’s vice president of administration advised and consulted

with some subsidiaries regarding employee health and safety and was authorized to

discuss safety problems with subsidiary’s management, he had no direct

responsibility or control over subsidiary’s safety procedures, he did not have

authority to approve responses to safety problems, and responsibility remained with

subsidiary’s management).

Williams argues that Lippert undertook the responsibility for ensuring

workplace safety at the Waxahachie facility because Lippert issued a safety manual

setting forth its safety policies, and it wanted its policies and procedures

communicated to the workers at the facility and followed. Seward testified,

32

however, that it was Kinro’s responsibility to provide the safety and human resource

manuals to Kinro employees, not Lippert’s, and that someone at Kinro should have

reviewed the thirteen topics in the safety manual with workers and obtained their

signatures acknowledging receipt of the manual. As the Texas Supreme Court has

noted, “mere promulgation of safety policies does not establish actual control.” Dow

Chem. Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002); see Ross Stores, Inc. v. Miller,

612 S.W.3d 682, 691 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (noting

evidence that parent company had employment handbook reflecting its “zero

tolerance policy” for workplace violence, and that parent company set up hotline

discussed in handbook and urged employees to report incidents by calling hotline or

notifying manager of incident, demonstrated nothing more than promulgation of

safety policies and no evidence existed that retail store was obligated to follow

policies); Cleveland Reg. Med. Ctr., 323 S.W.3d at 351 (finding parent company

owed no duty for its subsidiary’s negligence despite existence of policy manual,

issued by parent corporation and applicable to its subsidiary, stating that parent

company was “committed to providing a safe and healthy workplace for all

colleagues”); see also Mack, 439 F. Supp.3d at 902 (concluding parent company’s

issuance of safety policy expressing general commitment to provide safe and healthy

workplace did not constitute specific undertaking to ensure that subsidiary’s

employees were protected from specific type of accident that injured employee);

33

Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10 (Tex. App.—

Houston [14th Dist.] 2002, pet. denied) (“[I]nternal procedures do not create a

negligence duty where none would otherwise exist.”).

Williams asserts that the evidence showing that Lippert never confirmed that

workers at the Waxahachie facility received the safety manual, did not match any of

the signed acknowledgments with new workers, did not recommend that brakes be

installed on the L-cart, and never ensured that Williams received any safety training

in how to safely handle glass supports imposing a duty on Lippert under a negligent

undertaking theory. This argument is unavailing. A negligent undertaking claim

requires an affirmative action and cannot be predicated on a failure to act. See

Elephant Ins., 644 S.W.3d at 152 (noting failure to give safety warning is omission

and not undertaking); Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392,

396–97 (Tex. 1991) (holding negligent undertaking claim failed because defendant

did not undertake “an affirmative course of action”); Colonial Sav. Ass’n, 544

S.W.2d at 119 (stating undertaking requires “an affirmative course of action”); Knife

River Corp.–S. v. Hinojosa, 438 S.W.3d 625, 631–32 (Tex. App.—Houston [1st

Dist.] 2014, pet. denied) (noting one who voluntarily undertakes affirmative course

of action for benefit of another has duty to exercise reasonable care that other’s

person or property will not be injured); Thornton v. Henkels & McCoy, Inc., No. 13-

12-00585-CV, 2013 WL 5676026, at *3 (Tex. App.—Corpus Christi–Edinburg Oct.

34

17, 2013, no pet.) (mem. op.) (holding defendant, who failed to repair sagging cable

line, was not liable for negligent undertaking because claim requires “affirmative

course of action” and cannot be predicated upon alleged negligent omission or

failure to act).

In support of his argument that Lippert owed him a duty to provide safety,

Williams cites Little v. Delta Steel, Inc., 409 S.W.3d 704 (Tex. App.—Fort Worth

2013, no pet.), Johnson v. Abbe Engineering Co., 749 F.2d 1131 (5th Cir. 1984), and

Shelby v. Granbury Care Center, No. 10-05-00063-CV, 2006 WL 1041993 (Tex.

App.—Waco Apr. 12, 2006, pet. denied) (mem. op.).

In Little, an employee of Delta Steel died while using an electromagnetic

crane to move a steel plate when the plate dislodged from the magnet and fell,

crushing him. See 409 S.W.3d at 706. Little’s widow, children, and executrix of his

estate sued Delta Steel and its parent company, Reliance Steel and Aluminum

Company, alleging that Reliance had undertaken a responsibility to ensure safety for

Delta Steel’s employees and had been negligent and grossly negligent in failing to

perform that responsibility, causing Little’s fatal crane accident. See id. at 707.

Reliance then moved for summary judgment arguing that it could not be liable in

negligence because, as Delta Steel’s parent company, it did not have control over

Delta Steel’s day-to-day operations and did not owe Little a duty of care. Id. The

35

trial court granted summary judgment in favor of Reliance on the negligent

undertaking claim. See id.

The Fort Worth Court of Appeals held that the evidence established that

Reliance voluntarily undertook a duty owed by Delta Steel to provide safety to Little.

See id. at 721. It concluded that the duty arose because Reliance not only generally

controlled aspects of Delta Steel’s safety policies through, among other acts,

commanding the inclusion of certain provisions in Delta Steel’s manual, but it also

(1) specifically controlled policies concerning the inspection of cranes, such as

requiring Delta Steel to hire an independent inspection company, (2) had the

authority to audit Delta Steel’s Fort Worth plant and to require Delta Steel to correct

safety issues discovered upon an audit, (3) audited Delta Steel’s other plants, (4) had

the authority to require Delta Steel to take a malfunctioning crane out of service, and

(5) required Delta Steel to mail monthly reports on accidents and investigations to

Reliance. See id. Thus, the evidence showed that Reliance had the controlling,

primary authority for maintaining safety at Delta Steel’s facilities. See id.

Little is distinguishable from the facts in this case in several key respects.

First, there is no evidence that Lippert specifically controlled policies concerning the

inspection and maintenance of L-carts. There is also no evidence that Lippert could

require Kinro to take any action with respect to the L-carts, which included

correcting safety issues. Rather, Seward testified that he could only make

36

recommendations to Kinro and could not force Kinro management or employees to

follow the recommendations. He testified that it was Kinro, not Lippert, who made

the decisions about whether to replace, repair, or modify a piece of equipment,

including the L-carts, and Lippert could not require Kinro employees to use a

particular method of stacking glass. There was also no evidence that Lippert

instituted mandatory reporting requirements on Kinro.

In Johnson, an explosion occurred severely injuring several employees of a

wholly owned subsidiary. See 749 F.2d at 1132. The plaintiffs sued the parent

corporation on a negligent undertaking theory. See id. The jury found in favor of

the plaintiffs, and the parent company appealed asserting that the evidence did not

support the jury’s findings that it owed the plaintiffs a duty. See id.

At trial, the parent company’s manager of accident prevention and safety

training testified that he had inspected the area where the accident occurred several

times during the years preceding the accident during the course of a safety “audit of

the entire complex.” Id. at 1133. He further testified that he knew of the prescribed

ball mill procedures and was aware that explosive and highly flammable solvents

were being used. Id. The safety manager testified that his duties included review

and approval of the broad spectrum of safety practices and procedures at the parent

company’s subsidiaries, he expected his safety directives and suggestions to be

followed and implemented, and that expectation was met. Id. Additionally, the

37

subsidiary’s plant manager testified that he relied upon the parent company’s safety

representatives for accident prevention and safety training and followed any

recommendations made concerning safety at the facility. Id. at 1133–34. The

subsidiary’s production foreman testified that personnel relied upon the expertise of

the parent company’s safety division in matters relating to safety. Id. at 1134.

The Fifth Circuit Court of Appeals affirmed the trial court’s judgment,

concluding that the evidence was sufficient to support the jury’s finding that the

parent company had undertaken a duty to protect its subsidiary’s employees because

it had undertaken to inspect the entire plant of which the instrument causing the

injuries was a part. See id. at 1133. It concluded that, from the evidence presented

at trial, the jury could reasonably have found that the subsidiary was “lull[ed] into a

false sense of security.” Id. at 1134.

Here, the record contains no evidence that Lippert’s involvement at the

Waxahachie facility was related to the specific aspect of safety that caused

Williams’s injury. While Seward testified that Lippert wanted Kinro to

communicate its policies and procedures to its workers and for the Waxahachie

facility to comply with them, he also testified that Lippert could not mandate that

Kinro follow them. Kinro management decides how to implement the guidelines

and whether to make the safety manual available to workers, and Lippert neither

provided the safety manual to Kinro employees nor confirmed that Kinro did so.

38

Seward testified that a failure to give the safety manual to workers or provide job

training to them would be a failure on Kinro’s part, not Lippert’s. As to Monreal’s

testimony that “Lippert had safety corporate people that were EHS, Environmental,

Health and Safety that would visit” the Waxahachie facility and “different safety

coordinators from Lippert contact[ed] him for different occasions,” these statements

do not demonstrate that Lippert had “actual control or a right of control over the

specific aspect of safety and security . . . that led to [Williams’s] injury.” Morris,

106 S.W.3d at 754 (citing Tidwell, 867 S.W.2d at 23).

In Shelby, a nurse, Shelby, was assigned by her employer, Vitas, a healthcare

company, to provide nursing services to the hospice patients of Granbury Care

Center. See 2006 WL 1041993, at *1. Shelby was injured after a Granbury

employee refused to help her transfer a patient who weighed over three hundred

pounds from his bed to his wheelchair. See id. Shelby sued Granbury claiming it

was negligent in failing to assist her in transferring the patient and in failing to

provide adequate employees to take care of the center’s patients. See id. Granbury

moved for summary judgment on Shelby’s negligent claim, asserting that it did not

owe a duty to Shelby. See id. The trial court granted the motion. See id.

The Waco Court of Appeals reversed the summary judgment, holding that a

fact issue existed as to whether Granbury undertook to assist Vitas employees in

such a manner as to create a duty to Shelby. See id. at *4. In particular, the court

39

noted that there was uncontroverted evidence that, prior to the incident in which

Shelby was injured, Granbury employees always assisted Shelby in transferring

patients from their beds to their wheelchairs. See id. There was also evidence that

it was commonly understood by Granbury employees that they must assist Vitas

employees in transferring patients out of bed. See id. The court stated that even if

Granbury ordinarily would not have had a duty to assist Vitas employees in

transferring patients, it arguably assumed such a duty by consistently assisting Vitas

employees in the past. See id.

Here, unlike in Shelby, there is no history of Lippert controlling, inspecting,

or maintaining the specific aspect of safety that led to Williams’s injury. See

Tidwell, 867 S.W.2d at 23; Morris, 106 S.W.3d at 754. There is also no evidence

that Lippert controlled or had the right to control employee training. Instead, the

record shows that control over the L-cart, including any repairs, replacement, or

modification, such as equipping it with brakes, as well as employee training on,

among other things, how to properly handle glass, rested solely with Kinro. See

Ross Stores, 612 S.W.3d at 691 (holding absent evidence showing direct

participation by parent company in circumstances precipitating employee’s injuries,

there was no basis for concluding parent was required to protect employee from

injuries that occurred at subsidiary’s store) (citing Abdel-Fattah v. Pepsico, Inc., 948

S.W.2d 381, 385–86 (Tex. App.—Houston [14th Dist.] 1997, no writ)).

40

We conclude that there is no more than a scintilla of evidence that Lippert

exercised control with respect to the specific aspect of safety that led to Williams’s

injury necessary to impose a duty on Lippert. See Lee Lewis Constr., 70 S.W.3d at

782. Because the jury’s negligence finding is not supported by legally sufficient

evidence, we sustain Lippert’s first issue.13

Conclusion

We reverse the judgment of the trial court and render judgment that Williams

take nothing by way of his claims against Lippert.

Kristin Guiney

Justice

Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

13

In light of our disposition, we do not reach Lippert’s remaining issues contending

that Williams’s pleadings did not put Lippert on notice of a general negligence or

negligent undertaking claim, Williams’s claims are barred by the exclusive remedy

doctrine, the evidence was legally and factually insufficient to support the jury’s

award of future medical expenses, the trial court erred in denying Lippert’s motion

to designate Kinro as a responsible third party and refusing to submit Kinro’s

proportionate responsibility to the jury, and the trial court erred when it refused to

submit jury questions and instructions on the application of the exclusive remedy

defense and whether Lippert exercised control over specific safety aspects that led

to Williams’s injury. See TEX. R. APP. P. 47.1.

41