Subject: IN THE SUPREME COURT OF TEXAS
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Date: Sat, 24 Mar 2007 13:54:55 -0500

IN THE SUPREME COURT OF TEXAS

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No. 03-1128

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Sandy Dew, Individually and
as Representative of the Estate of Paul Dew, Deceased, and Carl Dew and Doris
Dew, Petitioners,

v.

Crown Derrick Erectors, Inc.,
Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Ninth District of
Texas

════════════════════════════════════════════════════

Argued January 4,
2005

Justice Johnson, joined by Justice Hecht and Justice Green, dissenting.

The issue
before us is whether some evidence and permissible inferences from the evidence
support Crown Derrick’s contention that it was entitled to have a “new and
independent cause” instruction in the jury charge. The court of appeals
concluded that there was such evidence, reversed the judgment against Crown
Derrick, and remanded for a new trial. 117 S.W.3d 526, 537. I agree with the
court of appeals and would affirm its judgment.

I. Factual Background

The Gorilla V
drilling rig where Paul Dew fell to his death on September 23, 1998, was owned
by the Rowan Companies, Inc. Rowan had contracted with (1) Woolslayer Companies,
Inc., to design and manufacture the rig; (2) LeTourneau, Inc., to build the rig;
and (3) Crown Derrick to assemble the rig’s derrick. The derrick was first to be
assembled in three components which were later to be mounted onto the rig.

Because the
Gorilla V was to be used in the North Sea, it was required to have two ladders
and associated ladder openings to access the different levels of the rig,
including the derrick and the derrick’s fourble platform. Woolslayer designed
the required ladder openings with safety gates around them.

Crown Derrick
began the first phase of assembling the derrick into its three components in
March 1998. During that part of the assembly process, safety gates and hardware
for the crown platform were located, but hardware required to hang a second
safety gate on the fourble platform was not. Crown Derrick completed the first
phase of the derrick assembly work and left the jobsite.

In August
1998, Crown Derrick returned to the jobsite to mount the derrick’s three
component pieces onto the rig and complete the assembly and installation. As
assembly of the derrick and installation on the rig progressed, hardware
required to install a safety gate was still available for only one of the two
fourble platform ladder openings. Crown Derrick installed a gate on one of the
ladder openings. Having not received mounting hardware for the other ladder
opening by the time it was ready to leave the jobsite on August 28, Crown
Derrick placed a double‑rope barrier on both sides of the ladder opening to
prevent workers from falling through it. There was evidence at trial that the
double‑rope barrier complied with Occupational Safety and Health Administration
(OSHA) requirements. Rowan’s worksite safety rules required walkaround access
openings such as the ladder opening to have “hatches/handrails with gates or
some means to prevent personnel falling through openings.” (emphasis
added). Crown Derrick presented testimony at trial that the double‑rope barrier
complied with Rowan’s safety rules.

On September
22, 1998, Crown Derrick returned to the rig construction site to finish hanging
the ladders on the derrick. Because of a broken crane, Crown Derrick was unable
to get to the fourble platform and left the rig without checking or doing any
work on the platform or hanging the ladders.

On September
23, Paul Dew fell through the un‑gated ladder opening. He died as a result of
the fall.

Testimony was
conflicting as to whether a rope barrier protecting the ladder opening was in
place when Dew fell. An eyewitness testified that shortly after Dew fell, a
worker was seen erecting a rope barrier across one side of the opening. There
was evidence that when Crown Derrick left the construction site in August,
Rowan’s onsite construction manager was told that rope barriers had been placed
over the hole for safety, and that Rowan’s manager agreed to keep workers off
the unfinished platform. There was evidence that sometime between the time Crown
Derrick left the worksite in August and Dew’s fall on September 23, the
double‑rope barrier was removed and a two‑foot‑wide, four‑foot‑long, and five‑
to six‑foot‑tall electrical junction box was placed over the opening. There was
also evidence that the junction box was too heavy to be moved manually, so it
was subsequently removed by use of an air hoist, and a single‑rope barrier was
placed around the opening. There was evidence that one week before Dew fell,
Rowan’s construction manager was on the fourble platform, saw the ladder opening
with a single‑rope barrier around it, but took no action to change the
barrier.

II. New and Independent Cause

A. Nature of the Instruction

The purality
opinion refers to “new and independent cause” as an inferential rebuttal defense
which operates to rebut an element of the plaintiff’s case by proof of other
facts. ___ S.W.3d ___ (citing Dillard v. Tex. Elec. Coop., 157 S.W.3d
429, 430 (Tex. 2005) and Comm. on
Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury ChargesCGeneral Negligence & Intentional Personal
Torts PJC 3.1‑3.5 (2003)). The basic characteristic of an inferential
rebuttal is that it presents a contrary or inconsistent theory from the claim
relied upon for recovery. See Select Ins. Co. v. Boucher, 561 S.W.2d 474,
477 (Tex. 1978). Although “new and independent cause” has been referred to on
occasion as an inferential rebuttal theory or defense, see Comm. on Pattern Jury Charges, State Bar of
Tex., Texas Pattern Jury Charges–General Negligence & Intentional Personal
Torts PJC 3.1, cmt. (2003), the instruction has historically been viewed
as part of the definition of “proximate cause.” See Dallas Ry. & Terminal
Co. v. Bailey, 250 S.W.2d 379, 383–84 (Tex. 1952) (“The theory of new and
independent cause is not an affirmative defense; it is but an element to be
considered by the jury in determining the existence or non‑existence of
proximate cause.”).

B. Standard of Review

We review a
trial court’s decision to submit or refuse a particular instruction under an
abuse of discretion standard of review. In re V.L.K., 24 S.W.3d 338, 341
(Tex. 2000). A party is entitled to a jury question, instruction, or definition
if the pleadings and evidence raise an issue. Tex. R. Civ. P. 278; Union Pac. R.R.
Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). A trial court’s error in
refusing an instruction is reversible if it “probably caused the rendition of an
improper judgment.” Tex. R. App.
P. 61.1(a); Union Pac. R.R. Co., 85 S.W.3d at 166.

We have long
held that because new and independent cause is part of the proximate cause
definition, omission of the instruction and definition is reversible error.
See Young v. Massey, 101 S.W.2d 809, 810 (Tex. 1937) (stating that “[i]t
is the settled law of this State that if the evidence in a negligence case
raises the issue of new and independent cause, it is reversible error not to
include the term in the definition of proximate cause” and that “if such term is
necessary to be used in the definition of proximate cause, it is reversible
error not to define it”); Southland Greyhound Lines, Inc. v. Cotten, 91
S.W.2d 326, 328 (Tex. 1936) (“It is reversible error, in a cause in which the
testimony tends to prove the injury resulted from a new independent cause, not
to submit a definition of ‘proximate cause’ embodying that term, or a similar
term, together with a definition of same.”); see also Bailey, 250 S.W.2d
at 384; Tarry Warehouse & Storage Co. v. Duvall, 115 S.W.2d 401, 405
(Tex. 1938) (“This court has repeatedly held that where the testimony raises the
issue of ‘new and independent cause,’ the trial court should define such issue,
and that it is reversible error not to do so.”); Tex. Motor Coaches, Inc. v.
Palmer, 121 S.W.2d 323, 323–24 (Tex. 1938) (same); Orange & N.W. R.R.
v. Harris, 89 S.W.2d 973, 975 (Tex. 1936); Dixie Motor Coach Corp. v.
Galvan, 86 S.W.2d 633, 634 (Tex. 1935); Phoenix Ref. Co. v. Tips, 81
S.W.2d 60, 61–62 (Tex. 1935).

As we
explained in Cotten,

The term
“proximate cause” is a legal term with a fixed and long-established legal
meaning. The word in the term which necessitates that it be defined so as to
convert it into language employing words of ordinary meaning is the word
“proximate.” . . . “The question always is, Was there an unbroken
connection? . . . Or was there some new and independent cause
intervening between the wrong and the injury?” “New and independent cause” is
likewise a term of fixed legal meaning that must be defined. Again it is not the
word “cause” that necessitates a definition of the term; it is the words “new
and independent.” In other words, there are two kinds of causes to be considered
by the jury when there is evidence that negligent acts other than the alleged
negligent acts of the parties was responsible for the injury. It is necessary
that they be translated by definition into words of such ordinary meaning, and
so differentiated, as to enable the jury to properly pass upon the issues.

91 S.W.2d at
328–29 (quoting Tex. & Pac. Ry. Co. v. Bigham, 38 S.W. 162, 164 (Tex.
1896)).

Over one
hundred years ago we held that the trial court’s refusal to submit an
instruction on an “unavoidable accident” was reversible error, even though other
aspects of the jury charge covered the defensive matter. Galveston, H. &
S.A. Ry. Co. v. Washington, 63 S.W. 534, 538 (Tex. 1901). We recognized that
in reviewing omissions from the jury charge, we must view the charge “as
practical experience teaches that a jury, untrained in the law, would view it.”
Id. Our reason for requiring such a defensive theory to be submitted
holds just as true today as then:

It is
claimed by counsel for [the plaintiff] that the defense presented by this
special charge was covered by the general charge of the court in which the jury
were instructed . . . [but] it is not to be supposed that
the jury considered an issue not developed by the charge of the court. Under
such circumstances the defendant had the right to call upon the court to submit
specifically the group of facts and circumstances which raised the issues
expressed in the special charge. Without this protection, the jury, in rendering
a general verdict under a charge so general as that given, may have disregarded
a defense which they might have given effect to, if it had been brought to their
attention.

Id.;
see also Reinhart v. Young, 906 S.W.2d 471, 476 (Tex. 1995) (Hecht, J.,
concurring). Although we have moved to broad‑form jury submissions, we do not
use the broad‑form submissions as a vehicle to deny a party the correct charge
to which the party would otherwise be entitled. See Romero v. KPH Consol.,
Inc., 166 S.W.3d 212, 227 (Tex. 2005).

C. Nature of the Evidence Required

Generally,
one person is not bound to anticipate negligent conduct on the part of
another. See Ft. Worth & D.C. Ry. Co. v. Shetter, 59 S.W. 533, 535
(Tex. 1900). However, a person’s negligence will not be excused where wrongful
conduct of a third party is a foreseeable result of such negligence. See El
Chico Corp. v. Poole, 732 S.W.2d 306, 314–15 (Tex. 1987) (holding that a
tortfeasor’s negligence is not superseded by an intervening force or event when
the intervening force or event is a foreseeable result of the negligence);
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex. 1985) (noting
that subsequent criminal conduct is not a superseding cause of an injury if the
criminal conduct is a foreseeable result of the tortfeasor’s negligence). Nor
will negligence of a party be excused if an alleged new cause is not such as to
break the chain of causation and the original negligence concurs in causing the
injury. See Gulf, C. & S.F. Ry. Co. v. Ballew, 66 S.W.2d 659, 661
(Tex. Comm’n App. 1933, holding approved) (holding that “[w]hen the new cause or
agency concurs with the continuing and co‑operating original negligence in
working the injury,” the original party’s negligence “remains a proximate cause
of the injury, and the fact that the new concurring cause or agency may not in
such case have been reasonably foreseeable should not relieve the wrongdoer of
liability”).

So, two
aspects of causation are involved in an intervening event or action rising to
the level of a new and independent cause. First, the intervening event or action
must not be ordinarily or reasonably foreseeable. See Phan Son Van v.
Peña, 990 S.W.2d 751, 754 (Tex. 1999). Second, the original acts and
omissions must have run their course and been completed so that they did not
actively contribute in any way to the injuries involved. See Bell v.
Campbell, 434 S.W.2d 117, 122 (Tex. 1968).

In
determining whether an intervening force rises to the level of a superseding
cause, we have found the factors set forth in section 442 of the Restatement of
Torts instructive. Phan Son Van, 990 S.W.2d at 754–55. Those factors
are:

(a) the
fact that the intervening force brings about harm different in kind from that
which would otherwise have resulted from the actor’s negligence;

(b) the
fact that the intervening force’s operation or the consequences thereof appear
after the event to be extraordinary rather than normal in view of the
circumstances existing at the time of the force’s operation;

(c) the
fact that the intervening force is operating independently of any situation
created by the actor’s negligence, or, on the other hand, is or is not a normal
result of such a situation;

(d) the
fact that the operation of the intervening force is due to a third person’s act
or to his failure to act;

(e) the
fact that the intervening force is due to an act of a third person which is
wrongful toward the other and as such subjects the third person to liability to
him;

(f) the
degree of culpability of a wrongful act of a third person which sets the
intervening force in motion.

Id.
(quoting Restatement (Second) of
Torts § 442 (1965)).

In Phan
Son Van we were reviewing a summary judgment to determine whether the proof
of intervening cause was conclusive and warranted summary judgment. Id.
Here we are faced with a different issue: whether there was legally sufficient
evidence to raise the issue of intervening cause. See Bailey, 250 S.W.2d
at 384. The questions of foreseeability and proximate cause generally involve
practical inquiries based on “common experience applied to human conduct.”
See City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987) (citation
omitted). There is legally sufficient evidence of a matter when the proof and
inferences from the proof furnish a reasonable basis for reasonable minds to
reach differing conclusions as to the existence of the matter. See Orozco v.
Sander, 824 S.W.2d 555, 556 (Tex. 1992).

III. Analysis

To determine
if there is evidence supporting Crown Derrick’s requested new and independent
cause instruction, we must review the record to see if there is more than a
scintilla of evidence on which reasonable jurors could base a finding that (1)
Crown Derrick would not have ordinarily or reasonably foreseen that, even if its
rope barriers were removed, the walkway would be left without protection to
prevent personnel from falling into the opening; and (2) Crown Derrick’s
allegedly negligent actions were not continuing, but were complete and had come
to rest. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). Although much
of the evidence and testimony is in conflict, there is some evidence which would
support findings in Crown Derrick’s favor as to both such matters.

A. Foreseeability

The fact that
OSHA regulations and industry safety policies existed as to openings on
construction sites could support an inference that Crown Derrick would not
reasonably foresee Rowan or its contractors removing barriers from around the
ladder opening and then leaving the opening unprotected in violation of safety
regulations and policies. Further, Rowan had its own worksite safety policies in
place, requiring that all openings be protected in some manner by
hatches/handrails with gates or some means to prevent personnel from falling
through openings. When Crown Derrick left the jobsite, the opening had some
means to prevent personnel from falling through the opening. There is evidence
that before Dew’s accident on September 23, Crown Derrick was not placed on
notice that its safety barriers (or their absence) were related to any accidents
at the ladder opening and that Crown Derrick did not have control of the fourble
platform after it left the jobsite in August.

Evidence was
introduced that after Crown Derrick’s rope barriers were taken down, worksite
and industry safety policies were complied with by persons (1) covering the
opening with a heavy electrical junction box, and (2) when Rowan removed that
box, erecting more rope barriers. Such evidence would support an inference that
Crown Derrick’s anticipating the opening would not be left unprotected in
violation of safety policies was reasonable. There was evidence that Rowan’s
experienced construction supervisor was on the fourble platform a week before
the accident and noted the presence of a rope barrier at the ladder opening.
Such evidence would support inferences that (1) Rowan’s supervisors were aware
of the safety rules and inspected the rig to enforce compliance with them,
including the rule that openings in walkways were not to be left without safety
protections; and (2) the opening being left unprotected by third parties in
violation of safety regulations and policies was not reasonably foreseeable to
Crown Derrick.

B. Concurring Cause

The opening
in the walkway was a required feature of the rig because it was to be used in
the North Sea. Evidence showed that Crown Derrick assembled the derrick and
walkway as it was designed, except as to the safety gate for which no mounting
hardware was available. In lieu of a safety gate, rope barriers were placed and
some evidence showed that the barriers complied with safety rules and would have
prevented personnel from falling into the opening. Subsequent removal of the
rope barriers and covering of the opening with a junction box was evidence that
Crown Derrick’s long‑completed actions were not a continuing cause of later
events such as Dew’s fall. Accordingly, there was evidence which would have
allowed a jury to infer that absent subsequent independent acts of persons not
under Crown Derrick’s control, the rope barriers would have prevented Dew from
falling through the opening. In sum, there was evidence that Crown Derrick’s
actions as to safety protections for the opening were complete, had come to
rest, and that absent new and independent actions of third parties, Dew would
not have fallen.

C. Restatement Factors

Reviewing the
evidence in light of factors in section 442 also leads to the conclusion that
the removal of Crown Derrick’s barriers and failure to replace the barriers or
otherwise protect the ladder opening was a new and independent cause of the
accident. Restatement (Second) of
Torts § 442 (1965). The removal of not only Crown Derrick’s barrier but
also the subsequently placed additional protective devices and failure to
reinstall some sort of protection appears to be extraordinary in view of the
industry’s and Rowan’s safety rules, which were applicable to all workers on the
rig. See id. § 442(b). The removal by third parties of not only rope
barriers from around the opening, but a heavy metal covering placed on the
opening at one time, reflect actions operating independently of the situation
created when Crown Derrick placed barriers around the designed opening, which
some evidence showed complied with applicable safety guidelines. See id.
§ 442(c). The failure to protect the opening after removal of Crown Derrick’s
rope barriers was due to third persons working in a controlled construction
environment, not Crown Derrick’s employees. See id. § 442(d). The removal
of Crown Derrick’s rope barriers by third persons and failure of those third
persons to then place protective devices around the opening was wrongful toward
Dew and was such as could subject the third persons to liability for Dew’s
injuries. See id. § 442(e). The removal of Crown Derrick’s protective
rope barriers and failure to reinstall some protective mechanism could be viewed
as a culpable wrongful act by a third person in connection with the accident.
See id. § 442(f).

IV. Application

The plurality
opinion says that the risk of injury within control of and created by Crown
Derrick was the risk of injury due to an open hole in the walkway without
adequate safeguards. But, the risk of having a ladder opening in a walkway was
not a risk within the control of Crown Derrick. The ladder opening was required
by safety rules for drilling rigs to be used in the North Sea. Moreover,
industry standards, as well as OSHA’s and Rowan’s safety rules, recognize a fact
of life on construction sites: sometimes openings must be left in floors and
walkways for various reasons due to the nature of the construction process. One
such reason is the reason for the opening in this case: it was a designed
feature.

The risk
within the control of Crown Derrick was the risk presented by inadequate
safeguarding of the opening. The Court’s judgment denies to Crown Derrick its
right to have the jury be properly instructed on the question of whether Crown
Derrick should have foreseen that third parties would violate industry, OSHA,
and worksite safety rules by leaving the ladder opening unprotected, and whether
actions of other parties broke the causation chain between any actions by Crown
Derrick and Dew’s fall.

Foreseeability
requires more than viewing the facts in retrospect and charging a party to
anticipate an extraordinary sequence of events whereby the defendant’s conduct
can be said to bring about the injury. See Doe v. Boys Clubs, 907 S.W.2d
472, 478 (Tex. 1995). The evaluation of evidence as to foreseeability and
proximate cause generally involves practical inquiries based on common
experience applied to human conduct. See City of Gladewater, 727 S.W.2d
at 518.

As to harm
from the omission, whether Crown Derrick’s actions had come to rest and the
actions of Rowan and its other contractors were new and independent causes of
Dew’s fall was a hotly contested issue throughout the trial. Crown Derrick
contended in the court of appeals that there was legally insufficient evidence
of both elements of proximate cause—cause-in-fact and foreseeability—for the
jury finding to be upheld. Although the court of appeals overruled that
contention, the evidence on the issue, some of which is referred to above and
more of which is referenced by the court of appeals’ opinion, reflected the
magnitude of the contest at trial over the question.

What we said
long ago bears repeating: In reviewing omissions from the jury charge, “we
should view the charge as practical experience teaches that a jury, untrained in
the law, would view it.” Washington, 63 S.W. at 538. The discussions in
reported cases of whether proximate cause instructions should or should not
include new and independent cause language bear witness to the subtleties
involved in what is a sufficient subsequent event or force to break the chain of
causation between a party’s negligence and an occurrence. To fail to instruct
the jury on an established legal doctrine raised by the evidence and in serious
contention at trial should not be held to be harmless error.

V. Conclusion

I would hold
that a practical view of the evidence in this record yields the conclusion that
there is legally sufficient evidence of new and independent cause to require the
instruction to have been given as requested by Crown Derrick. I would also hold
that the trial court’s failure to give the instruction was not harmless.

________________________________________

Phil
Johnson

Justice

OPINION DELIVERED: June
30, 2006