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The Texas Supreme Court has been the target of complaints by plaintiffs’ lawyers who claim it too frequently chops punitive damages. So the high court’s decision on Dec. 20 in Lee Lewis Construction Inc. v. Norma Harrison, et al. came as a pleasant surprise to some. The supreme court justices, in an opinion with three concurrences, affirmed a 7th Court of Appeals decision that upheld the award of $12.9 million, which included $5 million in punitive damages, to the family of Jimmy Harrison. Harrison, a window installer who worked for Lubbock, Texas-based KK Glass, died after he fell from a 10-story hospital-expansion construction site in Lubbock in 1990. His widow, the couple’s two children and Harrison’s parents sued, alleging KK Glass and the general contractor on the hospital project, Lubbock-based Lee Lewis Construction, were negligent and grossly negligent. The lead attorney for the Harrisons, Houston solo Carl Crow, says the opinion is important not only for the monetary award but also because it reaffirmed the cause of action holding contractors responsible, under certain conditions, for the safety of workers employed by their subcontractors. “The ruling encourages contractors to be more careful,” says Crow, who has been steering the case through the legal system for more than a decade. “There are hundreds of thousands of people that work construction in this state. I’m thrilled. We think this is a tremendous victory in many ways.” In addition, it was gratifying to help Norma Harrison find out what happened to her husband the day he died, Crow says. An attorney for Lee Lewis Construction, R. Brent Cooper of Cooper & Scully in Dallas, did not return three calls seeking comment. Other lawyers representing the company were out of the office for the holidays and could not be reached by press time. Crow says the defense attorneys have filed a motion indicating they want the Texas Supreme Court to reconsider its ruling. He says he’s confident the court’s decision will stand. The Harrisons settled with KK Glass before trial, but went forward with their case against Lee Lewis Construction before a jury in the 237th District Court of Judge John R. McFall. Lee Lewis Construction appealed the nearly $13 million judgment to the 7th Court in Amarillo, Texas. After the Harrisons agreed to remit $450,000 of the damages awarded to the estate for Jimmy Harrison’s pain and suffering, the appeals court upheld the jury’s verdict. Joe L. Lovell, of Lovell, Lovell, Newsom & Isern in Amarillo, who served as local appellate counsel for the plaintiffs, says he and other attorneys have seen that it’s difficult to get an appeals court to uphold a punitive damage award. “I was certainly pleased that they followed the evidence,” Lovell says. “They called it for what it was, and that was egregious conduct.” Lee Lewis subsequently appealed the case to the Texas Supreme Court, which unanimously upheld the award. THE SAFETY DUTY The Texas Supreme Court opinion says the principal issue in the case was whether the jury’s findings of negligence and gross negligence were supported by sufficient evidence. Lee Lewis Construction challenged the finding that it had a duty to ensure the safety of a worker employed by a subcontractor and argued that even if it had a duty, failure in that duty was not the cause of Harrison’s injuries nor were the worker’s injuries foreseeable. But Justice Deborah Hankinson, writing for the court, said that under Redinger v. Living Inc., a 1985 Texas case, and § 414 of the Second Restatement of Torts, a general contractor may owe a duty of reasonable care to a subcontractor’s employee if it retains control over part of the work to be performed. No one witnessed Harrison’s fall, and there is disputed evidence about what type of safety device he used, Hankinson wrote. But she said that evidence presented at trial supported the Harrisons’ contention that Lee Lewis Construction observed and approved of KK Glass employees using faulty fall-protection equipment, including a bosun’s chair — a wooden board suspended from the roof by a rope — without an independent lifeline. “The [Texas Supreme] Court concludes legally sufficient evidence exists that Lewis retained the right to control its subcontractor’s fall-protection measures and thus owed a legal duty to Harrison, that Lewis’s failure to ensure adequate fall-protection measures proximately caused Harrison’s fall and that Lewis was grossly negligent,” Hankinson wrote. She was joined in the opinion by Chief Justice Tom Phillips and Justices Craig Enoch, James Baker, Harriet O’Neill and Xavier Rodriguez. In a concurring opinion, Justice Wallace Jefferson said he agrees the evidence supports liability but not for the reasons stated in Hankinson’s opinion. Lee Lewis Construction’s mere approval of the ineffective fall-protection system is not “actual control,” he wrote. “LLC’s [Lee Lewis Construction] liability stems from its right to compel compliance with standard safety measures coupled with its tacit approval of the subcontractor’s patently treacherous operations,” Jefferson wrote. “LLC was fully aware that KK Glass employees, and Harrison in particular, used a bosun’s chair to perform caulking work on the exterior of a multistory building. LLC knew that the chair had no independent lifeline and that employees would have only their grasp of the rope to prevent a fatal fall.” Justice Nathan Hecht, in a concurring opinion joined by Justice Priscilla Owen, wrote that retained control over a subcontractor’s work was a necessary factor to find liability, but not the only factor. He noted that, among other factors, Lee Lewis Construction required subcontractors to adhere to a detailed safety manual and monitored their safety efforts. “In this case, there is more than retained control,” Hecht wrote. “The general contractor also actually knew that the independent subcontractor was using an extremely dangerous device in its work and did nothing to stop it. The evidence supports the jury’s findings that the subcontractor and the general contractor were both grossly negligent, the one in using the device, and the other in failing to prevent its use.” He said that KK Glass employees immediately disconnected the bosun’s chair from the roof and removed it after the fall. It never was found, he said. Phillips, in a concurrence joined by Rodriguez, wrote that he joined in Hankinson’s opinion, but he has misgivings about the Texas Supreme Court’s approach in suits against general contractors for injuries to a subcontractor’s employees. The focus on the degree of the general contractor’s “retained control” has failed to provide consistent and equitable results, he wrote. He added that Hecht’s view that more than retained control is necessary for liability merits the attention of the bench and bar, but that the court should not abandon settled law without a thorough briefing from interested parties. Crow says that any change in the law would have been disastrous for construction workers. “It was a very gratifying case for me to participate in,” he says, noting that a number of other lawyers helped make it a success.

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