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I hate watching horror movies. When not covering my eyes, I futilely plead with the characters to flee and escape death at the hands of the villain. As the viewer, I know that Freddy Krueger is hiding in the closet, that the shark is much bigger than the hero’s boat, and that eerie music foreshadows the villain’s attack. I read court opinions from a similar perspective, and when sneaky procedural issues aim to gut a party’s otherwise meritorious case, I tend to pull for that party.

I felt that familiar horror-film anxiety when I read United Scaffolding v. Levine, —S.W.3d— (Tex. June 30, 2017). The opinion’s introduction set the scene: “We reverse the court of appeals’ judgment and render a take-nothing judgment.” Then, I read that the apparent slip-and-fall case had been tried only on a general-negligence theory. And I began to cringe in looking at procedural decisions that would strike at the last minute, unravel years of hard work by the lawyers and judges involved, and cancel an injured man’s compensation.

Plaintiff James Levine worked for Valero in its Port Arthur refinery. Defendant United Scaffolding Inc. (USI) constructed and maintained scaffolding for Valero. In 2005, Levine was injured when he slipped on a USI scaffold because the plywood surface was not nailed down. Levine sued USI. Following the first trial, Levine successfully moved for a new trial based on jury error. In the second trial, the jury found USI liable under a general negligence theory and awarded Levine approximately $2 million for his injuries.

The subsequent appeal focused on the propriety of the jury charge’s lone liability theory, general negligence. According to USI, Levine’s claims sounded in premises liability, requiring additional jury instructions and precluding recovery for general negligence. The intermediate court of appeals affirmed.

The Texas Supreme Court held that Levine’s pleadings and the evidence presented at trial “compel the conclusion” that Levine’s claim was actually a premises liability claim, thereby foreclosing Levine’s reliance on general negligence. The court noted that the key issue was USI’s control over the scaffold but acknowledged that USI had not exercised control over the scaffold on the day in question. Thus, the majority focused on “whether USI retained sufficient right of control” to impose a duty on USI to remedy the scaffold’s defect. First, the court concluded that Levine’s pleadings alleged that USI controlled the scaffold. Second, although the “contract between USI and Valero [was] not included in the record,” the court determined that other evidence, including Valero’s scaffolds policy, “is consistent with” the court’s determination that Levine’s claim sounded in premises liability. The majority emphasized that a premises liability claim does not require a defendant to have exclusive control over the relevant premises and suggested that Valero and USI shared control over the scaffold when Levine fell.

Justice Jeffrey Boyd dissented, joined by Justices Debra Lehrmann and John Devine. Although declaring that $2 million is “a lot of money for a neck strain,” the dissent challenged the majority’s analysis with barbed criticism. The dissent noted that a jury question is erroneous “only if it has no basis in law or the evidence.” Noting that the legal basis was unchallenged, the dissent concluded that sufficient evidence supported the general negligence finding, and it accused the majority of omitting the evidentiary-review standard altogether.

The dissent did acknowledge that USI’s control over the scaffold “determines the outcome of the case” but averred that the majority “misstates the standard of review, the pleadings, and the evidence.” According to the dissent, premises liability would not apply unless USI retained control when and where Levine fell, and Levine’s petition “never alleged that USI controlled the scaffolding at the time of the accident.” The dissent cited evidence showing that USI lacked control, including evidence that USI could not access the scaffold without Valero’s authorization, Valero had provided no authorization on the day Levine fell, and USI could not restrict Valero’s and its employees’ access to the scaffold. Based on its view of the evidence, the dissent opined that Levine’s claim sounded in general negligence—not premises liability. Thus, the majority’s and dissent’s disagreement on control seemed to center on whether Valero and USI shared control over the scaffold, or whether right of control shifted between the parties depending on the circumstances.

Levine also argued that USI waived any objection to the charge because USI had originally proposed the charge, and the parties had twice litigated the case on a general-negligence theory. The majority held that USI had no duty to object because the charge omitted the “correct theory of recovery” as opposed to merely omitting an element of a claim. The dissent noted the “great irony” of the circumstances and opined that the charge did not omit the premises liability theory altogether—it merely failed to include a question on control while including the negligence component of a premises liability claim. The dissent further contended that USI improperly invited error by proposing the charge in the first trial and not objecting when the trial court used the same charge in the second trial.

Despite the dissent’s many criticisms, the court reversed the $2 million judgment and rendered a take-nothing judgment. To Levine and his lawyers, United Scaffolding is undoubtedly a real-life horror show. Levine’s claims, which two juries found to have merit, evaporated due to a procedural trap that went unidentified by the parties, trial judge, the court of appeals, and three Texas Supreme Court justices. Lawyers litigating similar cases should consult United Scaffolding before proceeding to trial given the risks that it addresses.