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A pipefitter employed by a refinery owner (Valero Energy Corporation) was injured when he slipped and fell on loose plywood on scaffolding constructed by a scaffolding contractor.  He filed suit against the scaffolding firm, alleging the basic elements of premises liability.  A jury was given a jury instruction and question for finding “general negligence,” but was not instructed on “premises liability,”.  It awarded judgment of $2 million.  This was reversed on appeal with the court holding that the elements of premises liability (not general negligence liability) were presented at trial.  This was a fatal error to give the jury a general negligence instruction instead of premises liability instruction because the general negligence submission to the jury could not support the plaintiff’s recovery under a premises liability case.
In the balance of the article below we review the court’s discussion of the legal distinction between the causes of action.  What is quite important about the decision is how plainly it demonstrates the importance of preparing for trial with jury instructions and questions in mind right from the beginning, and then being sure that the instructions and questions ultimately given to the jury match the proof of facts and legal elements set forth during the trial.  The unfortunate result in this decision is a trial lawyer’s nightmare.  United Scaffolding, Inc. v James Levine, 2017 WL 2839842, 60 Tex. Sup. Ct. J. 1515 (Texas 2017).
An irony in this case is that the case went to trial twice.  The first trial resulted in a $178,000 verdict in favor of the plaintiff with a finding of 51% responsibility falling on the defendant.  The judge in that trial submitted a general-negligence question to the jury, which had been offered by the defendant.  After the jury verdict was rendered, the defendant filed a motion for a new trial, asserting that the verdict was against the great weight and preponderance of the evidence.  The trial court agreed and granted a new trial.
At the conclusion of the new trial, the jury found the defendant 100% responsible and awarded the plaintiff $2 million.  In this trial, a general-negligence question was again submitted to the jury.  But this time, it appears that this question was requested by the plaintiff rather than by the defendant.
On appeal, the defendant argued that the claim was improperly submitted on the general-negligence theory of recovery, and that this was reversible error entitling it to a “take nothing judgment” because the plaintiff’s actual legal theory that was presented at trial was “premises liability” and that could not then be submitted to the jury under a general-negligence theory of recovery.
 The court explained as follows:
 “A general contractor in control of the premises may be liable for two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect [citation omitted]. Levine argues on appeal that neither of those types of negligence applies in this case because USI relinquished control of the scaffold before Levine was injured, leaving Levine with a general-negligence claim. The court of appeals considered USI’s control over the premises to be the central inquiry in determining the character of Levine’s claim. [citation omitted]. Concluding that Valero controlled the scaffold on the day of Levine’s accident, the court of appeals held that Levine’s claim was properly submitted under a general-negligence theory of recovery.  In reviewing the alleged charge error, we must consider the nature and circumstances of Levine’s injury, Levine’s allegations against USI, and the evidence presented at trial.
 [A] person injured on another’s property may have either a negligence claim or a premises-liability claim against the property owner. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. When the injury is the result of the property’s condition rather than an activity, premises-liability principles apply.  Negligence and premises liability claims thus are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.[citation omitted].  Because negligence and premises liability claims are based on independent theories of recovery, we have held that they are not interchangeable….
Negligent-activity and premises liability claims “involve closely related but distinct duty analyses.” [citation omitted]. In a negligent-activity case, a property owner or occupier must “do what a person of ordinary prudence in the same or similar circumstances would have … done,” whereas a property owner or occupier in a premises liability case must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.”
The court further explained that for a premises liability defendant to be liable for a plaintiff’s injury, the plaintiff must prove:
“(1) that [the defendant] had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the defendant] did not exercise reasonable care to reduce or to eliminate the risk; and (4) that [the defendant’s] failure to use such care proximately caused [the plaintiff’s] personal injuries.”
Having explained the general principles that distinguish negligent-activity from premises liability claims, the court next turned to whether the plaintiff’s alleged injury resulted from a contemporaneous negligent activity or a condition on the property.  In this particular case, the court concluded that the plaintiff failed to allege that a contemporaneous ongoing activity caused his injury.  The court stated:
“Levine has never alleged that any sort of contemporaneous, ongoing activity caused his injury. Rather, in his trial court petition, Levine alleged that USI created a dangerous condition by “improperly assembling, erecting, and/or securing the scaffolding.” Levine further alleged, among other things, that USI failed to “adequately determine dangerous conditions created,” “correct the dangerous condition which existed with the scaffolding,” “secure the scaffolding in a proper and safe work condition,” and warn “that a dangerous condition existed which required extra care to be taken” by Levine while working on the scaffold. In essence, Levine claims that his injury resulted from a physical condition USI created and then left on the premises. We have repeatedly characterized such slip-and-fall claims as premises defect cases because the injuries were alleged to have resulted from physical conditions on property.”
Just because USI did not own the actual property (i.e, the Valero facility), this did not mean it could not be liable for premises liability and had to be sued instead for a general-negligence theory of liability.  In this regard the court stated,
  “We begin with the question of whether any duty of care USI owed Levine as to the scaffold condition is derived from our premises defect body of law, as USI contends. Levine argues on appeal that no premises liability claim exists because USI, a contractor, did not own, physically possess, or control the premises and therefore owed Levine no duty under a premises liability theory; rather, USI was hired to assemble the scaffold and did so negligently, making this purely a negligence case. Whether a duty exists is a question of law for the court, and the presence of an unreasonably dangerous condition weighs in favor of recognizing a duty.”
***
“An owner or occupier generally does not have a duty to ensure that a general contractor performs work in a safe manner.[citation omitted. Essentially, a general contractor that assumes control of or retains the right to control the premises “is charged with the same duty as an owner or occupier.”[citation omitted]. Thus, the duty to make the premises safe or warn of dangerous conditions “generally runs with the ownership or control of the property,” and a defendant’s liability under a premises liability theory rests on the defendant’s assumption of control of the premises and responsibility for dangerous conditions on it.”
The court concluded that the plaintiff, an employee of Valero, was “an invitee” and therefore the duty the defendant owed to the plaintiff as an invitee would be “to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.”
In the final analysis the court concluded that the question of whether the defendant owed the plaintiff a premises duty must be determined by examining whether USI maintained a right to control the scaffold that allegedly caused the plaintiff’s injury.  Based on the evidence presented at trial the court found USI had the right to control the scaffolding it constructed, and that no Valero employee was authorized to construct, use, or dismantle a scaffold without first securing USI’s permission.
For all these reasons, the court found that the plaintiff’s case sounded in premises liability and because the jury was given only a general-negligence theory question and was not given the correct instruction and question as to premises liability, the jury verdict had to be reversed.

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 20, No. 2 (Feb 2018).

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