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Click here for the full text of this decision There are fact issues regarding 1. whether the plaintiff was injured while engaged in “usual” lifting; and 2. whether adequate help was available to the plaintiff at the time of his injury. FACTS:A warehouse worker at Reynolds Tile and Flooring injured his back while he attempted to manually pull a 90-pound bag of cement from its storage place. Stephen Adams, the worker, sued his employer, arguing that his injuries were sustained because of Reynolds’ failure t 1. provide a safe work environment; 2. provide adequate assistance; 3. provide adequate safety equipment; and 4. adequately supervise its employees. Adams also sued Reynolds for breach of contract and Insurance Code violations stemming from its erroneous representation to Adams that it was a subscriber of a Texas Workers’ Compensation Insurance Policy. The trial court granted Reynolds’ summary judgment motion, and Adams appeals. He argues that Reynolds did not establish that his injuries were unforeseeable. He also argues that summary judgment should not have been granted on the breach-of-contract and Insurance Code issues. HOLDING:Reversed and remanded. The court explains Reynolds’ reasons for why Adams’ injuries were not foreseeable: 1. he routinely lifted 20 to 30 bags of cement each day; 2. Reynolds provided two forklifts and a hand truck for lifting heavy items; 3. he never asked for additional equipment to assist him in his lifting; 4. he never told anyone the bags were too heavy for him to lift; 5. he never asked for any assistance in moving bags of cement; and 6. although Reynolds did not provide safety training, he was aware of the proper way to lift heavy objects. The court then notes Adams’ testimony that whereas the warehouse aisles were usually cleared, which would allow him to use a forklift or handtruck, on the day he was injured, customer demands had prevented his co-workers from clearing the floor, so he was forced to retrieve the cement bag. Additionally, again because of customer demand, there were only two bags of cement left, and they were on the floor, under a rack that Adams had to stoop under. The court also notes Adams’ testimony that he did not receive safety training, nor was he issued a lifting belt. Judging from a reasonable person standard, the court concludes that fact issues exist regarding whether Adams was injured while engaged in “usual” lifting and whether adequate help was available to Adams at the time of his injury. The court notes that if it were reviewing a no-evidence summary judgment ruling that it might reach a different result, but on a standard summary judgment review, the court notes there is enough evidence that Reynolds may not have contractually assumed the responsibility of providing benefits equivalent to benefits the Workers’ Compensation system would supply if Reynolds were a subscriber. OPINION:Hudson, J.; Hudson, Fowler, and Frost.

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