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Brookshire Bros., Inc. v. Lewis
Citations: 997 S.W.2d 908; 1999 Tex. App. LEXIS 6451; 1999 WL 650786Docket: 09-97-295CV
Court: Court of Appeals of Texas; August 26, 1999; Texas; State Appellate Court
Carl Dean Lewis filed a lawsuit against his employer, Brookshire Brothers, Inc., after sustaining back injuries while working in the grocery store's meat department. The jury awarded Lewis $300,000 in damages, and the trial court ruled in his favor. Lewis, employed since 1984, initially injured his back lifting a sausage case in 1990, leading to surgery for a herniated disc. After returning to work on light duty, he suffered a second injury in 1991 while operating a meat grinder, resulting in a second surgery. By early 1993, Lewis was in severe pain again and required a third surgery, after which he did not return to work. Brookshire Brothers raised ten points of error on appeal, focusing on the sufficiency of evidence regarding proximate causation for the injuries. The court outlined its standard of review for legal and factual sufficiency, emphasizing that it must view the evidence favorably to the prevailing party and that a verdict can only be overturned if it is overwhelmingly against the weight of the evidence. The court clarified that it does not assess witness credibility or replace the jury's judgment, even if the evidence may support a different conclusion. Ultimately, the appellate court affirmed the trial court's judgment. Brookshire, identified as a nonsubscriber under Texas workers' compensation law, is liable for work-related injuries based on common law negligence. To prove negligence, a plaintiff must demonstrate duty, breach, and damages caused by the breach. Employers are required to exercise ordinary care in ensuring a safe workplace, which includes providing safety rules, safe equipment, and competent coworkers. Proximate cause is comprised of cause in fact and foreseeability. Cause in fact is established if the negligent action significantly contributed to the injury, whereas mere conditions that allow for injury do not suffice. Foreseeability pertains to whether the general risk of injury could have been anticipated, not the specific circumstances. In this case, Lewis testified about his back injury occurring while lifting a heavy lug of meat, supported by Dr. Evans' medical opinion linking the injury to the work. Witness Timothy Kellerman observed Lewis shortly after the injury occurred, noting Lewis's pain and confirming he stated he had "blew [his] back out again." An accident report corroborated these accounts, indicating the injury happened while lifting meat, exacerbated by staffing shortages requiring Lewis to work harder than usual. Brookshire acknowledged at trial that Lewis experienced back pain after lifting meat for the grinder. Lewis claimed Brookshire's negligence stemmed from inadequate staffing in the meat department, which he argued made his injury foreseeable. Brookshire countered that sufficient help was available and that Lewis did not seek assistance before proceeding with the work. As the meat department manager, Lewis was responsible for staffing and scheduling. Citing case law, Brookshire asserted it could not be liable for Lewis' injuries since he voluntarily undertook the task without assistance. An employer must provide adequate help for the required work; however, they are not liable if an employee chooses to proceed without assistance when help is available. During Lewis' injury, the meat department had four meat cutters, plus an apprentice and a meat wrapper. Although Brookshire's meat merchandiser handled scheduling, Lewis managed the staff schedule and was expected to request assistance if short-staffed. Employees testified that when understaffed, they often had to perform additional duties. On the day of Lewis' second injury, the department was short-staffed because one employee was on vacation and another quit unexpectedly. This left only Lewis and Kellerman working. The store manager confirmed that there were insufficient employees to manage the workload due to these absences, and while there was no evidence that the quitting employee’s failure to show up was foreseeable, there was testimony indicating that staffing issues had existed prior to that day. Lewis had previously requested additional help, underscoring ongoing staffing inadequacies. Deal and Johnson provided testimony regarding staffing issues, with Deal unable to recall any complaints from Lewis about being short-staffed and Johnson stating he did not discuss staffing with Lewis' supervisors until after Northrup's resignation. Following Lewis' second surgery, he requested additional help due to back pain while on light duty with doctor-mandated restrictions, but staffing was not increased. Lewis reported working beyond his restricted forty-hour week and lifting beyond his thirty-five-pound weight limit due to insufficient assistance. He raised concerns with Robert Gilmer, Brookshire's risk manager, who dismissed his complaints. Lewis also mentioned a conversation with Johnson, where Johnson claimed to have informed supervisors about Lewis' need for more help, emphasizing that Lewis should not have been in his position given his previous back surgery. Brookshire contended that Lewis' injury was not foreseeable, asserting that Lewis was performing customary job functions at the time of his injury. Brookshire cited a precedent case, Great Atlantic & Pacific Tea Co. v. Evans, to support its argument that requiring employees to perform familiar tasks without prior injury does not constitute negligence. However, the circumstances of Lewis' injury were atypical; the store was experiencing a hamburger meat sale and was understaffed, with only two meat cutters available instead of the usual three. Lewis described the day as particularly hectic, indicating a significant increase in demand. Additionally, Brookshire argued there was no evidence that the work assigned to Lewis was dangerous or that an injury was foreseeable. The employer is obligated to provide a safe working environment and appropriate equipment. On the day of the injury, while grinding hamburger meat, Lewis experienced a sharp pain in his back after lifting and flipping a full lug into the grinder. Although the grinder was equipped with safety features and had not been evaluated for risk by Brookshire, Gilmer maintained that the task was not unreasonably dangerous. Deal confirmed that the grinder was standard in all Brookshire markets. The grinding process for meat involves a single employee lifting meat trimmings in a plastic pan, or lug, and transferring them into a grinder. The employee performs repetitive movements, including bending, reaching, lifting, and dumping the meat. The weight of a full lug is debated among witnesses; estimates range from forty to seventy-five pounds. Purcell, a safety expert, indicated that the maximum safe lifting weight for the employee, given his size, is twenty-seven pounds. He highlighted that lifting a full lug exceeds this limit by two to three times, deeming the task unsafe. Purcell recommended reducing the lug size and providing a platform to minimize lifting height as potential solutions to reduce risk. While he noted a lack of specific grocery industry standards for lifting, he referenced Kroger's 1991 standards which limit lifting to forty pounds. Conversely, Brookshire’s expert, Frenzel, argued that the job site was reasonably safe and that it is impossible to eliminate all risks inherent to the position, asserting that Brookshire had adequately identified and controlled hazards through established safety measures. Frenzel identified an engineering control aimed at reducing the weight of lugs used at Brookshire's, describing them as adequately designed with good handles and a convenient size, weighing approximately fifty-three pounds when full. He disagreed with Purcell's lifting limit of twenty-seven pounds, suggesting a limit of sixty-two pounds, and believed that with appropriate controls, a maximum of eighty-two pounds would be acceptable. Frenzel assessed that the tasks assigned to Lewis, assuming full capability, were safe, and affirmed that properly executing the lifting and transferring of lugs into the grinder was not inherently unsafe. He noted that elevating lugs on crates reduced stress while lifting. Although Lewis injured his back while 'flipping' a lug, Frenzel maintained that this action did not violate safety norms and posed minimal risk compared to bending to lift. He stressed that it was Lewis' responsibility to evaluate the weight he could manage. Brookshire asserted that Lewis' injury was not foreseeable due to its provision of training on safe lifting techniques and a system of safety meetings. The employer is obligated to create and enforce safety rules allowing employees to perform their duties safely. Brookshire's safety program, established in 1990, included manuals, handbooks, safety posters, videos, and regular meetings. However, while Lewis attended safety meetings and received general lifting training, there were no specific instructions for safely loading meat into the grinder. Testimonies indicated that safety communications provided only general lifting guidance, lacking detailed protocols for the specific task. Gilmer further confirmed that no risk analysis had been performed regarding lifting meat to the grinder. Purcell testified that Brookshire's safety manuals did not provide guidance on lifting at or above shoulder level, indicating a failure to warn employees about the associated hazards. Frenzel acknowledged that while supervisors are responsible for safety, there were no written lifting instructions available. Lewis, after his first surgery and while under light duty restrictions, returned to work but later sustained a second injury shortly after being released to full duty. Gilmer noted that Lewis did not adhere to more restrictive company guidelines compared to his doctor's orders, despite having been warned about following them. Lewis claimed he sometimes exceeded his restrictions due to staffing shortages, as he felt compelled to complete tasks when no one else could assist. Testimonies highlighted Lewis's strong work ethic and conscientious nature. After his second surgery, Lewis was placed on light duty with specific restrictions that he argued were often exceeded due to inadequate staffing. The evidence suggests that Lewis’s injuries were partly due to this staffing inadequacy, which was foreseeable by Brookshire. Although Brookshire argued that Lewis was responsible for scheduling staff, his authority was limited, as he required Deal's approval to hire additional help or increase hours. Conflicting evidence exists regarding the safety of meat grinding activities, but sufficient evidence indicates these activities posed an increased risk of injury. Key factors contributing to this risk included the weight of the lug, the height of the grinder, and the practice of ‘flipping’ the lug. The absence of specific lifting instructions for the meat department exacerbated the foreseeability of injury. Relevant case law, such as Truco Properties, Inc. v. Charlton, reinforces that general instructions can lead to improper lifting and consequent injuries. Testimony suggested that Lewis, an employee, was compelled to exceed medical restrictions due to inadequate support staff, indicating Brookshire was aware of potential injury risks. The case of Brookshire Brothers, Inc. v. Wagnon similarly highlights an employee's claim of an unsafe workplace leading to injury during routine duties, where the court noted that foreseeable injury factors included excessive lifting weight, lack of team lifting protocols, insufficient training, and failure to provide requested assistance. The Texas Supreme Court's decision in Werner emphasizes that employer negligence can be actionable even during normal job performance if the work environment poses risks. The evidence suggests that Lewis’ job was indeed hazardous, given the understaffing, increased workload due to a sale, lack of specific lifting instructions, and unsafe equipment. The court finds sufficient legal and factual basis for proximate causation, affirming that the jury, as the trier of fact, properly assessed witness credibility and evidence weight. As a result, Brookshire's appeals regarding jury verdicts are overruled, as the verdict aligns with the weight of the evidence presented. Brookshire contends that the trial court incorrectly denied its request to reduce the judgment by Lewis' portion of negligence, as determined by the jury, which allocated 50% negligence to both parties. The jury awarded $300,000 in damages, but the trial court did not apply Texas' comparative responsibility statute to reduce the award based on Lewis' negligence. According to Texas law, particularly under the Worker's Compensation Act, in cases against nonsubscribing employers, contributory negligence, assumption of risk, and negligence by fellow employees cannot be used as defenses. The employer can only assert that it was not negligent or that the employee was the sole proximate cause of the injury. The court determined that comparative negligence is not applicable in cases against nonsubscribing employers and therefore upheld the full damage award without reduction for Lewis' negligence. Brookshire's claim regarding an offset for medical payments and lost wages was also denied by the trial court. The court ultimately overruled Brookshire's first point of error regarding the negligence reduction and rejected the second point concerning the offset. An offset against damages prevents a plaintiff from receiving multiple recoveries for the same injury, as established in Stewart Title Guar. Co. v. Sterling. In this case, the jury awarded zero dollars for lost wages and was not tasked with awarding damages for medical expenses, indicating that Lewis did not experience double recovery, thus Brookshire is not entitled to an offset, leading to the overruling of point of error two. In point of error six, Brookshire claims the trial court erred by not submitting specific explanatory instructions. The court's refusal is evaluated under an abuse of discretion standard. Texas Rules of Civil Procedure mandate that juries receive necessary instructions to render a verdict, but the trial court has broad discretion in determining which instructions are appropriate. Brookshire's proposed instructions, which suggested that an employer has no duty to provide multiple safe working methods and that employees are responsible for their choices, were deemed unnecessary and potentially burdensome to the jury. The trial court correctly instructed the jury on relevant legal terms, and the additional instructions proposed by Brookshire were considered surplus, leading to the conclusion that the refusal to include them was not an abuse of discretion, and point of error six is also overruled. Regarding point of error seven, Brookshire argues the evidence supporting the jury's award for mental anguish was factually insufficient, questioning only the mental anguish component of a $200,000 award for past and future physical pain and mental anguish without contesting the physical pain aspect. When damages are presented in broad form, it complicates the determination of the specific amounts awarded by a jury for each damage element. To successfully contest a multi-element damage award on appeal, the appellant must address every individual element and demonstrate that the evidence is inadequate to support the total award. If an element is not challenged, the sufficiency claim is waived, which Brookshire failed to do, resulting in the preservation of error being compromised, leading to the overruling of point of error seven. In points of error eight and nine, Brookshire questions the sufficiency of evidence for the jury's awards related to past and future physical impairment. Dr. Evans provided testimony about Lewis' surgeries and the impairments resulting from them. Lewis underwent three surgeries due to multiple disc herniations and nerve root compression, starting in August 1990. By March 1993, his condition involved recurrent disc issues and new abnormalities at other spinal segments. Dr. Robert Fulford, appointed by Brookshire to assess Lewis' limitations, noted significant ongoing pain and mobility issues, detailing a 14% impairment in lumbar range of motion and a 27% impairment of the whole person according to the American Medical Association's guidelines, along with a weight lifting restriction of 20 pounds. Dr. Evans supplemented Dr. Fulford's impairment rating, noting the patient suffers from multilevel degenerative disc pathology in the lumbar spine, which has not significantly improved despite two surgeries. The patient is not suitable for lumbar fusion due to the extent of the degeneration and has experienced progressive issues that prevented him from returning to work after his first surgery. He subsequently developed an additional disc herniation requiring more surgery. Dr. Evans confirmed the patient has significant limitations in back range of motion, contributing to a high impairment rating. Dr. Fulford indicated the patient could work in a position with a lifting restriction of no more than 20 pounds. Dr. Evans agreed, emphasizing that efforts to increase back motion would worsen symptoms. He concluded that the patient's condition will not improve further. The court found sufficient evidence supporting both past and future physical impairments based on the testimonies of Drs. Evans and Fulford, ruling that the awarded damages were not excessively disproportionate to the evidence presented. Brookshire's motion for remittitur, claiming that damages should be reduced due to Lewis' comparative negligence, was deemed improperly preserved for review as the complaints raised on appeal differed from those made at trial. Consequently, the court overruled Brookshire's tenth point of error and affirmed the decision. Comparative responsibility is deemed inapplicable in this case, and thus the appellee's cross-point is not considered. Brookshire claimed that previous payments were established through a stipulation, defined as an agreement made during judicial proceedings, which must be written, signed, and part of the record or made in open court. Lewis contends that there is no evidence of such a stipulation in the record, a position the court agrees with after reviewing the documentation. The only item present is a summary of medical and indemnity payments made by Brookshire, which was not admitted at trial but attached to a post-verdict motion for judgment. Therefore, Brookshire failed to demonstrate facts necessary to justify an offset. The court references a prior case, Byrd, where an offset was affirmed, but distinguishes it from the current case since the offset in Byrd was not contested. Lewis also argues that Brookshire did not preserve error regarding the exclusion of certain jury instructions, but the court disagrees, stating that the preservation of error requires timely and clear communication of complaints to the trial court, along with a ruling.