In This Weekly Blog, The Law Offices Of Brandy Wingate Voss, PLLC Will Summarize Recent Decisions From The Thirteenth Court Of Appeals And Provide Links To Decisions On The Court’s Website.
In re Peterson Construction, Inc., No. 13-15-00535-CV (Memorandum Opinion by Chief Justice Valdez; Panel members: Justice Rodriguez, Justice Perkes)
In this mandamus proceeding, the Court reviewed an order granting a new trial. Plaintiff Roberto Perez brought suit against Peterson Construction, Inc. for personal injuries he sustained at a school administration building. Perez was at the building to meet with Peterson’s construction superintendent.
While descending a stairway, Perez placed his hand on a handrail that was not attached, and he fell unexpectedly. Perez sued claiming Peterson was in control of the premises as the “general contractor, superintendent, and/or subcontractor” responsible for construction on the premises. Perez alleged Peterson was negligent in constructing, installing, and inspecting the handrail and that it negligently hired, trained, and supervised its superintendent.
After a jury trial, the jury found that Peterson’s construction superintendent was the borrowed servant of another entity consulting on the project, Meridian, and was not acting as Peterson’s employee at the time of the accident. Accordingly, the jury did not answer the remaining questions in the court’s charge on liability or damages. The trial court granted a new trial, finding the evidence was factually insufficient to support the verdict.
Held: The court denied mandamus relief and held that the trial court did not abuse its discretion in granting a new trial.
The court’s new trial order specifically detailed the legal standard for evaluating a borrowed employee inquiry and detailed the evidence demonstrating that the superintendent remained Peterson’s general employee at the time of the incident. Thus, the order met the specificity standards required for new trial orders.
Following the Texas Supreme Court’s decision in In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758 (Tex. 2013) (orig. proceeding), the court of appeals then engaged in a merits-based review of the trial court’s order. The court followed Fifth Circuit precedent, holding that merits-based review requires the court to “review the record carefully to make certain that the district court has not merely substituted its own judgment for that of the jury.” It considered (1) the complexity of the issues, (2) the degree to which the evidence was in dispute, and (3) the absence of any pernicious or undesirable occurrence at trial.
The court of appeals held that the evidence at trial did not show a definitive shift of the right to control the superintendent from Peterson to Meridian, and the evidence showed the superintendent did not abandon his service to Peterson. Additionally, Peterson “permitted a division of control” over the superintendent with Meridian.
Moreover, the trial court could have reasonably found that borrowed servant issue was complex, hotly contested, and several of the aspects of the trial were irregular and undesirable. For example, one witness contradicted her own testimony, prompting the trial court state that the “indication was she was being harassed by somebody and I don’t think it was by — by the Plaintiffs’ side.” The trial court also expressed concerns on the record that the superintendent was changing his sworn testimony, and it had a representative from the district attorney’s office provide Miranda warnings. Thus, the court of appeals found support in the record for the new trial order.