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Torts Click here for the full text of this decision FACTS: Following a jury trial, Appellant Tyson Foods Inc. was ordered to pay appellee Gustavo Tovar Guzman $745,496.41 in damages for injuries he sustained while catching chickens that were destined for processing by Tyson. In three issues, Tyson challenges two of the trial court’s evidentiary rulings and argues that the evidence is legally and factually insufficient to support the jury’s finding of negligence and the amount of damages it awarded Guzman for lost earning capacity. HOLDING: Affirmed. Rule 407(a) of the Texas Rules of Evidence states as follows: (a) Subsequent Remedial Measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment. Nothing in this rule shall preclude admissibility in products liability cases based on strict liability. Guzman recognizes that in the general contractor/independent contractor relationship, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. However, he also asserts that a duty does arise if the general contractor retains some control over the manner in which the independent contractor performs its work. Guzman maintains that Tyson “vigorously contested” the issue of control throughout the trial. Moreover, Guzman argues that because “control” was a controverted issue in this case, the exception to rule 407(a) applies in this case and the trial court properly admitted the evidence. Tyson, on the other hand, contends that it stipulated to the issue of control during a pre-trial objection to the subsequent remedial measures. In its brief, Tyson states that it stipulated that Tyson “has a degree of control sufficient to allow them to exercise control over the manner and means by which the third party contractors accomplish the objective of the contract,” including “sufficient control to require workers to wear a reflective vest.” Tyson also argues that it had never contested the issue of feasibility. Guzman argues that the questions and statements Tyson’s counsel propounded to the various witnesses and to the court establishes that the issue of control remained a controversy during trial. Guzman also contends that Tyson did not properly stipulate to any issue of control because its attempt to stipulate to some areas of control and not others made the stipulation vague and incomplete. Because the stipulation was vague and incomplete, Guzman maintains that the issue of control remained a contested one and was open to review by the jury. Guzman argues that Tyson contested the issue of control in other parts of the trial, namely in its cross-examination of Tovar and Collum. Tyson, on the other hand, asserts that Brookshire Brothers Inc. v. Lewis, 911 S.W.2d 791 (Tex. App.- Tyler 1995, writ denied), controls the outcome of this case. In Lewis, the plaintiff sued Brookshire’s when an automobile driven by a third party crashed through the front of the store and injured him. The jury determined that Brookshire’s was negligent in not providing any barriers or other protective devices to prevent cars from rolling from the parking spaces into, and potentially through, the storefront. At trial, the jury heard evidence from one of the plaintiff’s expert witnesses that Brookshire’s had erected “bollards,” which are concrete-filled steel pipes set vertically in front of the parking spaces, at a similar store to prevent cars from crashing into the front of the store. The record also showed that the similar store was built eight to nine months after Lewis’ accident and that Brookshire’s employees testified that Lewis’ accident was a factor in the decision to install the bollards there. In Lewis, the court noted that although the evidence clearly concerned subsequent remedial actions by Brookshire’s, Lewis claimed that the evidence was offered to meet the exception to rule 407(a). Lewis argued that the evidence was not offered to show negligence, but was offered to prove the feasibility of precautionary measures. Lewis further contended that Brookshire’s denied the feasibility of any protective devices to prevent a similar accident and cited eight pages of the statement of facts to support his claim. In addressing the issue, the court acknowledged that evidence of subsequent remedial measures may be admitted when it is not offered to show negligence or culpable conduct, but instead is offered to prove ownership, control or feasibility of precautionary measures, if controverted. The court reviewed the pages cited by Lewis and found no evidence offered by Brookshire’s to refute the feasibility of the cost or efficacy of the protective measures such as the bollards installed at the second store. After searching the record for evidence of a refutation by Brookshire’s and finding none, the court held that the proof of the subsequent remedial measures was not intended to address such a refutation and therefore should not have been admitted. In analyzing whether the evidentiary ruling required a reversal, the court noted that Brookshire’s defense was that it had no duty to guard against the danger to customers from vehicles crashing into Brookshire’s store because such occurrences are so rare that they could not be reasonably foreseen in the light of ordinary experience. Since the erroneously admitted evidence struck at the heart of Brookshire’s defense and was a recognition of the concern that Brookshire’s contended to be rare and unforeseeable, the admission of that evidence was reasonably calculated to erode Brookshire’s position in the case and was harmful. Therefore, the case was reversed and remanded for a new trial. The facts of the instant case are distinguishable from the facts in Lewis. Here, Tyson did not stipulate to all areas of control. It specifically told the court that “Tyson does not acknowledge that it has a degree of control sufficient to allow them to exercise control over the manner and means by which the third party contractors accomplish the objective of the contract.” The first element that must be proven in an action for negligence is that a legal duty was owed to the plaintiff by the defendant. Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs his work in a safe manner. A duty does arise, however, if the general contractor retains some control over the manner in which the independent contractor performs its work. One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. A general contractor may owe a duty of reasonable care to a subcontractor’s employee, and consequently may be liable for injury to that employee, if the general contractor retains control over part of the work to be performed: “[W]hen the general contractor exercises some control over a subcontractor’s work he may be liable unless he exercises reasonable care in supervising the subcontractor’s activity.” Because Tyson did not stipulate, and thereby denied, that it “ha[d] a degree of control sufficient to allow [it] to exercise control over the manner and means by which the third party contractors accomplish the objective of the contract,” Guzman was left to prove that Tyson owed him a legal duty. The only way that he could do that was to prove that Tyson exercised control over the manner in which Collum’s employees performed their work. By refusing to stipulate to the “manner and means” by which Collum’s employees performed their work, the issue of control was controverted and the evidence of subsequent remedial measures was properly admitted. At trial, Tyson expressly denied that it exercised control over the manner and means by which the chicken catchers accomplish their objective; therefore, the evidence of Tyson’s subsequent remedial measures was properly admitted. OPINION: Griffith, J; Worthen, C.J., Griffith, J. and Ramey, Jr., Retired Chief Justice. Ramey sitting by assignment.

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