X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: George Lewis worked for Turbex as a millwright. He was sent to a United Parcel Service processing center to perform repair work on a conveyor belt there. Lewis conducted a “lockout/tagout” safety procedure to prevent the belt he was working on from starting unexpectedly, though he did not perform a similar procedure on an adjacent belt. The adjacent belt stopped during the shift change, and during this time, Lewis stepped onto the adjacent belt to retrieve a tool. At that time, he heard a buzzer signal the start-up of the adjacent belt. Before he could get off the belt, it started up and Lewis’ right foot was injured. The trial court submitted standard definitions of “negligence” and “ordinary care” to the jury, and asked in its charge if the negligence of any party proximately caused the injury. The jury said UPS did not proximately cause the injury, and that Lewis did cause the injury. The trial court denied Lewis’ request for a jury charge regarding UPS’ right to control the safety policies and procedures at the plant. The trial court also denied Lewis’ request to conduct voir dire on a UPS witness, Paul Allen, a UPS security representative. UPS went on to examine Allen, and afterward, out of the jury’s hearing, the court asked Lewis if he still wanted to conduct voir dire. Lewis declined the offer, saying he would simply cross-examine him. Also during the trial, Larry Alvarez, the owner of Turbex, testified. One of the things he said was that Lewis had received workers’ compensation benefits. Lewis objected, saying the reference was in violation of the trial court’s motion in limine that proof of insurance should not be entered into evidence. The trial court sustained the objection and instructed the jury to disregard, but after the jury was excused, the trial court denied Lewis’ motion for a mistrial. When the jury returned, the court gave the jury another instruction to disregard Alvarez’s comment. HOLDING: Affirmed. Lewis first challenges the trial court’s refusal to submit the right-to-control jury charge. The court points out that there is no question that UPS owns the facility, that a UPS employee started the adjacent belt and that UPS contracted to have Lewis repair the belt. UPS undoubtedly has the right to control the safety policies and procedures of its own employees at its own facility, the court says. “Because these acts are attributable to UPS, not an independent contractor, UPS’s right to control is implicit and, therefore, not an issue in this case. As such, the trial court did not err in refusing to submit the issue of right to control to the jury; rather, it properly submitted the issue of general negligence only.” Furthermore, Lewis’ injury was the result of a negligent activity, not a negligent condition. Considering Lewis’ injury to be the result of the negligent activity of UPS itself, the trial court found UPS had a duty as a matter of law. Therefore, UPS’s duty was not a question of fact for the jury to determine under the circumstances of this case. Consequently, because this case raised a claim for negligent activity, a general negligence charge was proper. The court then turns to whether the trial court erred in refusing Lewis’ request to conduct voir dire on Allen. Lewis claims he needed the opportunity to show that Allen’s testimony was based purely on hearsay. The court points out that Lewis did not make this argument in the trial below, so there is no record confirming what Lewis says he intended to do. Additionally, when given the opportunity to conduct voir dire, Lewis expressly declined the invitation. Thus there is no basis for this court’s review. Next, the court addresses whether Alvarez’s comment on workers’ compensation benefits left the jury with the impression that Lewis was financially settled, as Lewis argues. The court notes that in the absence of evidence to the contrary — of which there is none — it must presume that the jury followed the trial court’s instructions to disregard. Lewis challenges the sufficiency of the evidence, too, but the court finds there was ample evidence — even disregarding some testimony challenged by Lewis — to support the jury’s findings that UPS was not negligent and that Lewis was. OPINION: Radack, C.J.; Radack, C.J., Jennings and Higley, JJ. CONCURRENCE: Jennings, J. “I would hold that the trial court did not err in refusing to submit Lewis’s proposed jury question regarding UPS’s right to control safety procedures at its package-sorting facility. Because the majority opinion errs in concluding that”UPS’s right to control is implicit and . . . not an issue in this case’ and that the trial court did not err in refusing to submit a control issue to the jury because”it properly submitted the issue of general negligence only,’ I concur only in the judgment of this Court. The concurrence faults both the majority opinion and the trial court for missing Lewis’ point, which is that he presented more than a scintilla of evidence showing that UPS was liable for failing to exercise its control over the safety methods and procedures with reasonable care because a UPS supervisor never asked Lewis to lock out the adjacent belt that caused Lewis’ injuries.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.