Kenneth W. Moss and Michelle Moss v. Waste Management National Services, Inc.

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued August 20, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-01106-CV

KENNETH W. MOSS and MICHELLE MOSS, Appellants

V.

WASTE MANAGEMENT OF TEXAS, INC., Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 2005-72220

O P I N I O N

This appeal

arises from a jury’s verdict in favor of a property owner, sued for its

negligence after a truck-pedestrian accident occurred on its premises. A Rustin Transportation Company (Rustin) employee,

driving a company eighteen-wheeled truck, struck and injured Kenneth Moss, a fellow

employee, while Moss directed Rustin trucks at a waste transfer facility owned

by Waste Management of Texas, Inc. (Waste Management). Moss sued Waste Management, the premises

owner, for negligence. [1] A jury found that Waste Management did not control

Rustin’s activities. Based on the jury’s

finding, the trial court ordered that Moss take nothing in his suit against Waste

Management. Moss appeals the jury

verdict and judgment, contending that (1) the trial court erred in predicating

the liability and damages issues on whether Waste Management exercised control over

Rustin’s activities, and (2) the jury’s right-to-control finding is against the

great weight and preponderance of the evidence. We conclude that the trial court did not err

in submitting the right-to-control issue and that factually sufficient evidence

supports the jury’s verdict. We therefore

affirm.

Background

Facts giving rise to Moss’s suit

Waste Management

works with other private and municipal waste disposal operations to collect garbage. In connection with these activities, Waste

Management owns transfer stations—in this case, the Koenig Street station—where

waste disposal truck drivers dump their loads.

These strategically placed transfer stations minimize the number of long

trips to outlying landfills and allow the trucks to quickly return to their

routes.

As the

facility collects waste, operators weigh, sort, and compact it, then load it

onto trucks and deliver it to landfills.

One such operator, Rustin, contracts with Waste Management to load and

haul processed garbage from the Koenig

Street station to landfills outside Houston.

Under the

Loading and Transportation Service Agreement between Waste Management and

Rustin (the contract), Rustin agreed to serve as Waste Management’s preferred

transporter for its loading and shipment requirements at certain locations,

including the Koenig Street facility. Rustin

agreed to provide personnel, tractor-trailer units, and equipment sufficient to

load and transport up to 2,500 tons of waste delivered daily to the facilities

and to render its services in a legal and safe manner. The contract declares that Rustin is

responsible for “initiating, maintaining, and supervising all health and safety

precautions, requirements and programs for its employees, subcontractors,

vendors and other persons in connection with the [s]ervices.” Waste Management retained the right to

“inspect, review, and monitor” Rustin’s performance under the agreement to

ensure satisfactory compliance.

As an

employee of Rustin, Moss worked at the Koenig Street station as a “spotter,”

directing trucks into the bays as they entered the station and conducting

periodic inspections to ensure that the garbage dumped at the station did not

contain hazardous waste. In late February

2004, one of Rustin’s drivers struck Moss while backing his truck into the

transfer station, causing Moss serious injuries.

Proceedings in the trial court

Moss sued Waste Management, asserting

that it breached its duty of care to Moss by failing to

·

provide adequate warning to employees of contractors working at its

facility;

·

adequately supervise activities on its premises;

·

adequately control or limit the volume of garbage and traffic entering

the facility; and

·

design the facility so that it could safely accommodate the volume of

garbage and traffic it handles.

The parties

tried the case before a jury. The jury

heard disputed evidence concerning the extent to which Waste Management

exercised authority over the transfer station, but none that Waste Management

deviated in any material way from the oversight activities described in the

contract. Both Waste Management and

Rustin managers consistently testified that Rustin alone was responsible for

controlling traffic at the transfer station, training its drivers and spotters,

and hauling trash to the landfills.

At the

close of evidence, the trial court prepared the jury charge with the parties’

participation. Over Moss’s objection,

the court’s first question to the jury inquired whether Waste Management had or

exercised any right of control over Rustin’s activities. [2] The question read:

Question No. 1:

Did Waste Management of Texas, Inc., exercise or retain some control over

the manner in which Rustin Transportation performed its duties and

responsibilities at the WRS Transfer Station, other than the right to order the

work to start or stop or to inspect progress or receive reports?

Answer “Yes” or “No”:

The jury answered “no.” Because the trial

court predicated the remaining questions on an affirmative response to Question

No. 1, the jury did not answer any questions about liability or damages. The

trial court then rendered judgment that Moss take nothing in his suit against

Waste Management.

Discussion

Jury Charge

Moss first

contends that the trial court erred in submitting a question to the jury

predicating liability and damages upon Waste Management’s right to control the

manner in which Rustin performed its duties and responsibilities. Specifically, Moss contends that the trial

court erred in submitting Question No. 1 because he brought a direct negligence

action against Waste Management based on Waste Management’s operation and

management of the Koenig Street waste transfer station, not a premises

liability claim against Waste Management.

Error preservation

As a

preliminary matter, we address Waste Management’s claim that Rustin waived this

issue by merely objecting to the submission of the question as “inappropriate” without

also tendering a substantially correct question. Texas Rule of Civil Procedure 274 provides

that “[a] party objecting to a charge must point out distinctly the

objectionable matter and the grounds of the objection.” Tex.

R. Civ. P. 274. Whether a party

must do more than object to preserve an issue for appeal, however, depends on

the nature of the objection. When a

party, like Moss, contends that another party’s proposed question be omitted

entirely, that party is not required to tender a substantially correct

definition or question. See Turner v. Precision Surgical, L.L.C. ,

278 S.W.3d 245 , 248 n.2 (Tex. App.—Houston

[1st Dist.] Oct. 17, 2008, no pet.).

Moss’s objection preserved his contention for appellate review.

Standard of review for jury charge issues

We review the

trial court’s submission of instructions and jury questions for an abuse of

discretion. European Crossroads’ Shopping Ctr., Ltd. v. Criswell , 910 S.W.2d

45, 54 (Tex. App.—Dallas 1995, writ denied). A trial court abuses its discretion when it

acts in an arbitrary or unreasonable manner, or if it acts without reference to

any guiding rules or principles. Downer v. Aquamarine Operators, Inc. ,

701 S.W.2d 238 , 241–42 (Tex.

1985). A trial court has wide discretion

in submitting instructions and jury questions. Howell

Crude Oil Co. v. Donna Ref. Partners, Ltd. , 928 S.W.2d 100, 110 (Tex. App.—Houston [14th Dist.] 1996,

writ denied).

Right

to control

Moss

asserts that the trial court erred in submitting Question No. 1 to the jury

because his cause of action against Waste Management is one for direct negligence,

not premises liability. Under a premises

liability theory, the occupier of land has a duty to use reasonable care to

keep the premises under its control in a safe condition, and may be subject to

liability for negligence in situations arising from a premises defect as well

as those arising from an activity or instrumentality. See Dow

Chem. Co. v. Bright , 89 S.W.3d 602 , 606 (Tex.

2002); Redinger v. Living, Inc. , 689

S.W.2d 415, 417 (Tex. 1985); see also Dyall v. Simpson Pasadena Paper Co. ,

152 S.W.3d 688 , 697 n.11 (Tex. App.—Houston

[14th Dist.] 2004, pet. denied) (explaining that premises liability category is

for those defects that existed on premises when independent contractor entered

on property or that were created through some means unrelated to independent

contractor’s activity).

Absent a duty, however, Waste Management cannot be

held liable for Moss’s injuries as a matter of law. See

Kroger Co. v. Elwood , 197 S.W.3d 793, 794 (Tex.

2006) (citing El Chico Corp. v. Poole ,

732 S.W.2d 306, 311 (Tex.

1987)). The pertinent issue, then, is

whether Waste Management owed Moss a duty to use reasonable care in preventing

the type of accident that resulted in Moss’s injuries.

Premises owners

like Waste Management have no duty to see that independent contractors like Rustin

use reasonable care in performing their work unless they exercise control over

the independent contractor’s activity. Clayton W. Williams, Jr. v. Olivo , 952

S.W.2d 523 , 527–28 (Tex.

1997); Redinger , 689 S.W.2d at 418 . A plaintiff seeking to prove that the

property owner is liable for a negligent act therefore must prove that (1) the owner

had a contractual right of control or exercised actual control, in a way that

extends to the operative detail of the contractor’s work, and (2) a nexus

exists between the owner’s retained control and the activity that caused the

plaintiff’s injury. Gen. Elec. Co. v. Moritz , 257 S.W.3d 211, 214 (Tex.

2008); Ellwood Tex. Forge

Corp. v. Jones , 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Moss contends that, as the owner and

operator of the Koenig Street

station, Waste Management’s “right to control its own premises is implicit,” which

makes the jury question on right to control improper. Moss relies on our decision in Lewis v. UPS, Inc. , in which Lewis, an

independent contractor hired to repair UPS’s equipment, brought a negligence

action for injuries resulting from activities conducted by UPS employees while

he was on UPS’s premises making the repair.

175 S.W.3d 811, 814 (Tex. App.—Houston [1st Dist.] 2004,

pet. denied). Lewis alleged as the

negligent acts causing his injury that (1) a UPS employee started a conveyor

without any warning, and (2) UPS’s warning buzzer did not work properly. Id. We held that, because these acts were

attributable to UPS and not an independent contractor, UPS’s right to control

the injury-causing activity was implicit. Id. Consequently, we held that the trial court did

not abuse its discretion in refusing to predicate the negligence issue on a

right-to-control question. Id. In

contrast, here, Moss did not allege or produce evidence that a Waste Management

employee’s acts directly caused this accident—a Rustin employee drove the truck

and another flagged it into the bay.

The facts thus resemble those in the Texas Supreme

Court’s decision in Dow Chemical , in

which the plaintiff, a carpenter employed by Gulf States, an independent

contractor retained by Dow, suffered injuries when an overhead pipe, which

another Gulf States employee had improperly installed, became unstable and fell

on him, trapping his arm and causing his injury. 89 S.W.3d at 605. The plaintiff sued Dow, alleging it was

negligent for failing to withhold a safe work permit for the area until the

pipe was properly installed, or, alternatively, for failing to implement a

safety rule detailing how the ends of pipes should be secured before allowing

workers in an area.

Dow

required Gulf States,

like its other independent contractors, to comply with Dow’s safety rules and

regulations. The agreement between Dow

and Gulf States, however, did not grant Dow

any right either to control the means, methods, or details of Gulf

States’ work, or to direct the order in which Gulf States’ work should be done.

Under those

circumstances, the Supreme Court held, a duty of control is not implicit, and

the plaintiff bears the burden to prove right of control as a predicate to

liability. See id. at 606–08; see also

Olivo , 952 S.W.2d at 529 (confirming that simple negligence question,

unaccompanied by right-to-control issue, cannot support recovery under premises

liability theory). Similarly here, a

fellow Rustin employee struck Moss with his truck, and Moss’s claims against

Waste Management were claims of a failure to warn or supervise. Given these facts, we hold that the trial

court did not err in concluding that a right to control is an element of the

simple negligence claim asserted against Waste Management.

Propriety of submitting right-to-control

question

Because

Waste Management’s right to control is an essential element of Moss’s

negligence claim, the trial court’s submission of Question No. 1 to the jury is

improper only if the evidence conclusively shows that Waste Management exercised

or retained a right to control the acts that led to Moss’s injury. See Brown

v. Bank of Galveston , 963 S.W.2d 511, 515 (Tex.

1998); see also City of Keller

v. Wilson , 168 S.W.3d 802 , 814–15 (Tex. 2005). Moss first contends that the contract between

Waste Management and Rustin evidences that Waste Management retained a right to

control. The Dow Chemical court observed that either a contract or a premises

owner’s actual conduct may give rise to a right to control, and corresponding

duty of care. 89 S.W.3d at 606–07. To support his contention, Moss points to

provisions under which Waste Management retained a right of access to the

transfer station, as well as the right to inspect, review, and monitor Rustin’s

performance under the contract. Those

provisions, however, do not indicate that Waste Management retained control

over the details of Rustin’s work, such as how or where Rustin loaded its

trucks. On the contrary, the contract

expressly places with Rustin the sole responsibility for the care, custody, and

control of the waste deposited at the facility until it reaches its destination

landfill, and specifies that, according to the parties’ understanding, neither

Rustin Transportation nor its employees were agents or employees of Waste

Management, “but an independent contract carrier.” Read as a whole, the contract does not

conclusively prove that Waste Management retained any right to control the

means, methods, or details of Rustin’s work, such that the trial court was

required to direct a verdict in favor of Moss on the issue.

Nor do the circumstances that resulted

in Moss’s injury conclusively prove that Waste Management retained an actual right

to control the details of Rustin’s work in (1) driving or directing its trucks

into the bays, (2) conducting random inspections to prevent dumping of

unauthorized waste at the transfer station, or (3) choosing which of the transfer

station’s loading bays to use in the course of handling the volume of trash specified

under the contract. Rather, witnesses at

trial, including managers from both companies and Moss himself, testified that

Rustin employees handled those matters. Because

the contract and the actual circumstances do not conclusively prove that Waste

Management retained control over the details of Rustin’s work, the right to control

remained a fact issue for the jury to decide.

Accordingly, under the facts alleged by Moss and proved at trial, we

hold that the trial court did not abuse its discretion in submitting Question

No. 1 to the jury, and in predicating the remaining questions on the jury’s

affirmative answer to that question.

Separate from a duty arising from its

negligent activity, an owner or occupier has a duty to inspect the premises for

defects pre-existing the independent contractor’s entry and to warn the

independent contractor of concealed hazards about which the owner knows or

should have known. Shell Oil Co. v. Khan , 138 S.W.3d 288, 295 (Tex. 2004). While Moss alleged in his petition that the

defective design of the premises caused his injuries and that Waste Management

did not warn him of those defects, at trial he did not produce any evidence of

any concealed hazard causing Moss’s injury of which Waste Management should

have, but failed to, warn, independent of Waste Management’s failure to

properly control Rustin’s activities on its premises. The negligence issue, as framed for the jury,

was one of negligent acts or failures to act, not of a non-obvious premises

defect or hazard. We thus hold that the

trial court did not err in predicating the question of Waste Management’s

liability to Moss on its right to control Rustin’s work because the jury heard

no evidence of a concealed hazard on the premises, independent from allegations

that Waste Management failed to properly supervise or control Rustin’s

activities at the Koenig Street station.

Factual Sufficiency

As an alternative

ground for appellate relief, Moss contends that the jury’s finding that Waste

Management did not exercise or retain some control over the manner in which Rustin

performed its duties and responsibilities was against the great weight and

preponderance of the evidence and was manifestly unjust.

Standard of Review

In reviewing a factual sufficiency

point, we consider all the evidence supporting and contradicting the finding. Plas-Tex,

Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex.

1989); HTS Servs., Inc. v. Hallwood

Realty Partners, L.P. , 190 S.W.3d 108, 111 (Tex.

App.—Houston

[1st Dist.] 2005, no pet.). We set aside

the verdict only if the finding is so contrary to the overwhelming weight of

the evidence as to be clearly wrong and unjust. Cain v.

Bain , 709 S.W.2d 175, 176 (Tex.

1986). Courts of appeals should detail

the evidence relevant to the issue and state why the jury’s finding is so

against the great weight and preponderance of the evidence as to be manifestly

unjust. Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986). Further, courts of appeal should state in what

regard the contrary evidence greatly outweighs the evidence in support of the

verdict. Id.

Moss first directs our attention to

the testimony of Charles Rivett, who was Waste Management’s senior district

manager for disposal operations at the time of Moss’s injury, specifically,

Rivett’s testimony that he oversaw activities at three transfer stations. In his testimony, Rivett denied having any

oversight authority over Rustin’s day-to-day operations. Rather, he explained, his duties consisted of

ensuring that Rustin conducted regular training programs and asking whether

Rustin had any particular concerns concerning operations as they pertained to

Waste Management. Rivett stated that Waste

Management relied on Rustin to provide its own safety and operate within

applicable rules, and expected Rustin to notify him if it believed that Waste

Management should correct an unsafe condition or situation.

Moss asserts that the testimony of

Rivett and Douglas Travis, Rustin’s safety director at the Koenig Street

transfer station, also proves that Waste Management retained exclusive control

over (1) volume of trash dumped at and removed from the premises, (2) the

design of the premises, (3) entry to and exit from the facility, (4)

authorization of persons and entities to dump at the premises, (5) hours of

operation, (6) flow of traffic into facility, (7) financial arrangements for

dumping, (8) overall safety and supervision of premises, and (9) selection of

Rustin personnel to be used at the premises.

According

to Travis, trucks entering the transfer station first rolled onto the scale,

and Waste Management handled “the billing side of that,” but that, “once they

come off the scale, they become [Rustin’s] responsibility.” Rustin then directed the trucks’ movement and

unloading, loading of tractor trailers, and unloading at the landfill. Travis also explained that Waste Management

periodically brought in safety and compliance personnel to perform site

inspections to ensure that Rustin complied with the state permit requirements

and was prepared for the possibility of a random audit by the Texas Commission

on Environmental Quality (TCEQ). A

requirement that Rustin comply with governmental regulations and safety rules,

however, is not conclusive evidence that Waste Management retained some control

over Rustin’s work. See Dow Chem. Co. , 89 S.W.3d at 611 (citing Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354 , 357–58 (Tex. 1998)).

Moss

himself admitted that Rustin was in control of the facility: “They are in control

of all the trash that comes in. They are

in control of all operations on the facility itself. It was my understanding.” The evidence, viewed as a whole, does not

show that Waste Management exercised control over the operative details of

Rustin’s work—specifically over the direction and control of traffic within the

transfer station—to the extent that they jury’s finding is against the great

weight and preponderance of the evidence and is manifestly unjust. Accordingly, we hold that factually sufficient

evidence supports the jury’s verdict.

Conclusion

We hold that the trial court did not abuse

its discretion in submitting a right-to-control question to the jury as a

predicate to liability, and that factually sufficient evidence supports the

jury’s finding that Waste Management did not control the activities of the

trucking company employees that caused this accident. We therefore affirm the judgment of the trial

court.

Jane

Bland

Justice

Panel

consists of Justices Jennings, Hanks, and Bland.

Justice

Jennings, dissenting.

[1] Moss’s daughter, Michelle Moss, is also a party. For ease of reference, and because her loss

of consortium claim derives wholly from Moss’s negligence claims, we refer to

Moss in the singular. See Reagan v. Vaughn , 804 S.W.2d 463,

466 (Tex. 1990).

[2] The trial court used the applicable pattern jury

charge to draft the question. See Committee

on Pattern Jury Charges of the State Bar of Texas, Texas Pattern Jury

Charges—Malpractice, Premises & Products § 66.33 (2004 ed.).