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Click here for the full text of this decision The derrick erector owed a duty to exercise ordinary care, to make safe the opening ( an opening resulting from the incomplete status of its work under its contract ( until it could complete the installation of the safety gates. FACTS:Paul Dew fell to his death through a floor opening on Gorilla V, an offshore drilling rig under construction at Sabine Pass. Dew was working on the rig for LeTourneau Inc., the rig builder. Dew’s family sued the rig owner (Rowan Cos. Inc.), the rig designer (Woolslayer Cos. Inc.) and the derrick erector (Crown Derrick Erectors). A jury found the accident was caused by the negligence of Rowan, Woolslayer, Crown Derrick and Paul Dew. Crown Derrick is the only party to appeal. HOLDING:Reversed and remanded. There is some evidence in the record that even with Crown Derrick’s ropes in place, the hole, as one witness stated, was “absolutely an unsafe condition. Extremely unsafe.” But in deciding the threshold question of whether Crown Derrick owed a legal duty of due care to make the opening safe, the court does not consider whether Crown Derrick breached the duty or whether the breach was a proximate cause of the accident. By all accounts, the unguarded hole without safety gates, located around a corner on a walkway, was dangerous. The danger arose from the incompleteness of Crown Derrick’s work when it left the site. Unless an adequate guard was maintained, the opening would remain a hazard until the safety gates could be installed by Crown Derrick. Cognizant of that fact, Crown Derrick put up ropes to guard the opening in the walkway. Crown Derrick was acting to correct a danger it agreed to correct and that arose out of its own work. Having undertaken to erect a barrier to protect a dangerous area on its work site, Crown Derrick owed a duty to exercise ordinary care in doing so. The court concludes under the circumstances presented in this case Crown Derrick owed a duty to exercise ordinary care, to make safe the opening � an opening resulting from the incomplete status of its work under its contract � until it could complete the installation of the safety gates. The jury heard evidence that Crown Derrick did not check to see if the barrier remained in place when it returned to the work site the day before the accident. From the evidence the jury could find that a reasonable person exercising ordinary care would have checked to see if the barrier remained in place. If more than a scintilla of evidence supports the jury’s finding, the evidence is legally sufficient. In addressing Crown Derrick’s legal sufficiency challenge, the court views the evidence in a light that tends to support the jury’s finding and disregard all evidence and inferences to the contrary. In that light, the evidence is legally sufficient to support the jury finding of breach of the duty of care. Evidence was presented from which the jury could have concluded that a single rope was in place at the time of the accident, but was inadequate to prevent the accident, and that this degrading of the barrier was foreseeable given the amount of time Crown Derrick left the ropes unchecked. Other testimony was presented that no rope was in place at the time of the accident or the day before the accident when Crown Derrick was at the work site. The rope may have been in place the day before the accident, but may have been taken down and the hole left unguarded on the day of the accident. The jury had the ability to observe and determine the credibility of witnesses who were present at the work scene, and the jury had the responsibility for resolving the conflicts in the evidence. The jury may, or may not, have believed Crown Derrick’s witnesses who described the barricade it left, and may or may not have believed some or all of any testimony of any witness. The jury was brought much closer to the event and the work site than the written record brings this court. The court concludes, on this record of conflicting evidence, the issue of proximate cause was a fact issue for a jury properly instructed on the law. The court sees no inconsistency between the Texas comparative responsibility statute and the requested new and independent cause instruction. The jury may find the third person’s conduct intervened so as to be a new and independent cause severing the chain of causation between one defendant’s negligent act and the harm. If so, that defendant’s conduct would not be compared with the responsible parties’ conduct because that defendant’s conduct would not be a proximate cause of harm. The causation issue is at the center of this case. Evidence was presented from which a jury reasonably could have found a new and independent cause occurred. Some of the intervening acts were possibly those of parties to the lawsuit; some acts were by unknown persons, possibly subcontractors not joined as parties. On the conflicting evidence in this record, whether any intervening act occurred and was an unforeseeable new and independent cause, is for determination by a jury properly instructed on the law. A proper instruction was requested on this critical, disputed issue and would have assisted the jury. When charge error relates to a contested, critical issue, the error is generally considered harmful. The court concludes the error here requires reversal. The court holds the trial court erred in refusing to submit the requested explanatory instruction to the jury. An explanatory instruction on new and independent cause was necessary to assist the jury in rendering a proper verdict. OPINION:Gaultney, J.; McKeithen, C.J., Burgess and Gaultney, JJ. DISSENT:Burgess, J. “Here, there is no point in time at which Crown Derrick’s negligence in failing to install the safety gates came to rest. Furthermore, the removal of the rope barrier is precisely the type of intervening act Crown Derrick could reasonably foresee would result from its failure to install the safety gates. Because it was reasonably foreseeable, the act could not be a new and independent cause as a matter of law. “In light of the evidence and the above authority, I cannot say the trial court’s decision to deny Crown Derrick’s request for an instruction on new and independent cause was arbitrary or unreasonable or that the trial court acted without reference to any guiding rules or principles. . . . I would hold the trial court did not abuse its discretion in refusing to submit the proposed instruction, overrule Crown Derrick’s second point of error and affirm the trial court’s judgment.”

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