IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 03-1128

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Sandy Dew, = Individually and=20 as Representative of the Estate of Paul Dew, Deceased, and Carl Dew and = Doris=20 Dew, Petitioners,

Crown Derrick = Erectors, Inc.,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Ninth = District of=20 Texas

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Argued January 4,=20 2005

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

The = issue=20 before us is whether some evidence and permissible inferences from the = evidence=20 support Crown Derrick=92s contention that it was entitled to have a = =93new and=20 independent cause=94 instruction in the jury charge. The court of = appeals=20 concluded that there was such evidence, reversed the judgment against = Crown=20 Derrick, and remanded for a new trial. 117 S.W.3d 526, 537. I agree with = the=20 court of appeals and would affirm its judgment.

I. Factual Background

The = Gorilla V=20 drilling rig where Paul Dew fell to his death on September 23, 1998, was = owned=20 by the Rowan Companies, Inc. Rowan had contracted with (1) Woolslayer = Companies,=20 Inc., to design and manufacture the rig; (2) LeTourneau, Inc., to build = the rig;=20 and (3) Crown Derrick to assemble the rig=92s derrick. The derrick was = first to be=20 assembled in three components which were later to be mounted onto the = rig.

Because the=20 Gorilla V was to be used in the North Sea, it was required to have two = ladders=20 and associated ladder openings to access the different levels of the = rig,=20 including the derrick and the derrick=92s fourble platform. Woolslayer = designed=20 the required ladder openings with safety gates around them.

Crown Derrick=20 began the first phase of assembling the derrick into its three = components in=20 March 1998. During that part of the assembly process, safety gates and = hardware=20 for the crown platform were located, but hardware required to hang a = second=20 safety gate on the fourble platform was not. Crown Derrick completed the = first=20 phase of the derrick assembly work and left the jobsite.

In = August=20 1998, Crown Derrick returned to the jobsite to mount the derrick=92s = three=20 component pieces onto the rig and complete the assembly and = installation. As=20 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=20 fourble platform ladder openings. Crown Derrick installed a gate on one = of the=20 ladder openings. Having not received mounting hardware for the other = ladder=20 opening by the time it was ready to leave the jobsite on August 28, = Crown=20 Derrick placed a double‑rope barrier on both sides of the ladder = opening to=20 prevent workers from falling through it. There was evidence at trial = that the=20 double‑rope barrier complied with Occupational Safety and Health = Administration=20 (OSHA) requirements. Rowan=92s worksite safety rules required walkaround = access=20 openings such as the ladder opening to have =93hatches/handrails with = gates or=20 some means to prevent personnel falling through openings.=94 = (emphasis=20 added). Crown Derrick presented testimony at trial that the = double‑rope barrier=20 complied with Rowan=92s safety rules.

On = September=20 22, 1998, Crown Derrick returned to the rig construction site to finish = hanging=20 the ladders on the derrick. Because of a broken crane, Crown Derrick was = unable=20 to get to the fourble platform and left the rig without checking or = doing any=20 work on the platform or hanging the ladders.

On = September=20 23, Paul Dew fell through the un‑gated ladder opening. He died as = a result of=20 the fall.

Testimony was=20 conflicting as to whether a rope barrier protecting the ladder opening = was in=20 place when Dew fell. An eyewitness testified that shortly after Dew = fell, a=20 worker was seen erecting a rope barrier across one side of the opening. = There=20 was evidence that when Crown Derrick left the construction site in = August,=20 Rowan=92s onsite construction manager was told that rope barriers had = been placed=20 over the hole for safety, and that Rowan=92s manager agreed to keep = workers off=20 the unfinished platform. There was evidence that sometime between the = time Crown=20 Derrick left the worksite in August and Dew=92s fall on September 23, = the=20 double‑rope barrier was removed and a two‑foot‑wide, = four‑foot‑long, and five‑=20 to six‑foot‑tall electrical junction box was placed over the = opening. There was=20 also evidence that the junction box was too heavy to be moved manually, = so it=20 was subsequently removed by use of an air hoist, and a single‑rope = barrier was=20 placed around the opening. There was evidence that one week before Dew = fell,=20 Rowan=92s construction manager was on the fourble platform, saw the = ladder opening=20 with a single‑rope barrier around it, but took no action to change = the=20 barrier.

II. New and Independent Cause

A. Nature of the Instruction

The = purality=20 opinion refers to =93new and independent cause=94 as an inferential = rebuttal defense=20 which operates to rebut an element of the plaintiff=92s case by proof of = other=20 facts. ___ S.W.3d ___ (citing Dillard v. Tex. Elec. Coop., 157 = S.W.3d=20 429, 430 (Tex. 2005) and Comm. = on=20 Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury = ChargesCGeneral Negligence & Intentional = Personal=20 Torts PJC 3.1‑3.5 (2003)). The basic characteristic of an = inferential=20 rebuttal is that it presents a contrary or inconsistent theory from the = claim=20 relied upon for recovery. See Select Ins. Co. v. Boucher, 561 = S.W.2d 474,=20 477 (Tex. 1978). Although =93new and independent cause=94 has been = referred to on=20 occasion as an inferential rebuttal theory or defense, see Comm. on Pattern Jury Charges, State = Bar of=20 Tex., Texas Pattern Jury Charges=96General Negligence & Intentional = Personal=20 Torts PJC 3.1, cmt. (2003), the instruction has historically been = viewed=20 as part of the definition of =93proximate cause.=94 See Dallas Ry. = & Terminal=20 Co. v. Bailey, 250 S.W.2d 379, 383=9684 (Tex. 1952) (=93The theory = of new and=20 independent cause is not an affirmative defense; it is but an element to = be=20 considered by the jury in determining the existence or = non‑existence of=20 proximate cause.=94).

B. Standard of Review

We = review a=20 trial court=92s decision to submit or refuse a particular instruction = under an=20 abuse of discretion standard of review. In re V.L.K., 24 S.W.3d = 338, 341=20 (Tex. 2000). A party is entitled to a jury question, instruction, or = definition=20 if the pleadings and evidence raise an issue. Tex. R. Civ. P. 278; Union = Pac. R.R.=20 Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002). A trial court=92s = error in=20 refusing an instruction is reversible if it =93probably caused the = rendition of an=20 improper judgment.=94 Tex. R. = App.=20 P. 61.1(a); Union Pac. R.R. Co., 85 S.W.3d at 166.

We = have long=20 held that because new and independent cause is part of the proximate = cause=20 definition, omission of the instruction and definition is reversible = error.=20 See Young v. Massey, 101 S.W.2d 809, 810 (Tex. 1937) (stating = that =93[i]t=20 is the settled law of this State that if the evidence in a negligence = case=20 raises the issue of new and independent cause, it is reversible error = not to=20 include the term in the definition of proximate cause=94 and that =93if = such term is=20 necessary to be used in the definition of proximate cause, it is = reversible=20 error not to define it=94); Southland Greyhound Lines, Inc. v. = Cotten, 91=20 S.W.2d 326, 328 (Tex. 1936) (=93It is reversible error, in a cause in = which the=20 testimony tends to prove the injury resulted from a new independent = cause, not=20 to submit a definition of =91proximate cause=92 embodying that term, or = a similar=20 term, together with a definition of same.=94); see also Bailey, = 250 S.W.2d=20 at 384; Tarry Warehouse & Storage Co. v. Duvall, 115 S.W.2d = 401, 405=20 (Tex. 1938) (=93This court has repeatedly held that where the testimony = raises the=20 issue of =91new and independent cause,=92 the trial court should define = such issue,=20 and that it is reversible error not to do so.=94); Tex. Motor = Coaches, Inc. v.=20 Palmer, 121 S.W.2d 323, 323=9624 (Tex. 1938) (same); Orange & = N.W. R.R.=20 v. Harris, 89 S.W.2d 973, 975 (Tex. 1936); Dixie Motor Coach = Corp. v.=20 Galvan, 86 S.W.2d 633, 634 (Tex. 1935); Phoenix Ref. Co. v. = Tips, 81=20 S.W.2d 60, 61=9662 (Tex. 1935).

As = we=20 explained in Cotten,

The term=20 =93proximate cause=94 is a legal term with a fixed and long-established = legal=20 meaning. The word in the term which necessitates that it be defined so = as to=20 convert it into language employing words of ordinary meaning is the word = =93proximate.=94 . . . =93The question always is, Was = there an unbroken=20 connection? . . . Or was there some new and independent = cause=20 intervening between the wrong and the injury?=94 =93New and independent = cause=94 is=20 likewise a term of fixed legal meaning that must be defined. Again it is = not the=20 word =93cause=94 that necessitates a definition of the term; it is the = words =93new=20 and independent.=94 In other words, there are two kinds of causes to be = considered=20 by the jury when there is evidence that negligent acts other than the = alleged=20 negligent acts of the parties was responsible for the injury. It is = necessary=20 that they be translated by definition into words of such ordinary = meaning, and=20 so differentiated, as to enable the jury to properly pass upon the = issues.

91 = S.W.2d at=20 328=9629 (quoting Tex. & Pac. Ry. Co. v. Bigham, 38 S.W. 162, = 164 (Tex.=20 1896)).

Over one=20 hundred years ago we held that the trial court=92s refusal to submit an=20 instruction on an =93unavoidable accident=94 was reversible error, even = though other=20 aspects of the jury charge covered the defensive matter. Galveston, = H. &=20 S.A. Ry. Co. v. Washington, 63 S.W. 534, 538 (Tex. 1901). We = recognized that=20 in reviewing omissions from the jury charge, we must view the charge = =93as=20 practical experience teaches that a jury, untrained in the law, would = view it.=94=20 Id. Our reason for requiring such a defensive theory to be = submitted=20 holds just as true today as then:

It is=20 claimed by counsel for [the plaintiff] that the defense presented by = this=20 special charge was covered by the general charge of the court in which = the jury=20 were instructed . . . [but] it is not to be supposed = that=20 the jury considered an issue not developed by the charge of the court. = Under=20 such circumstances the defendant had the right to call upon the court to = submit=20 specifically the group of facts and circumstances which raised the = issues=20 expressed in the special charge. Without this protection, the jury, in = rendering=20 a general verdict under a charge so general as that given, may have = disregarded=20 a defense which they might have given effect to, if it had been brought = to their=20 attention.

Id.;=20 see also Reinhart v. Young, 906 S.W.2d 471, 476 (Tex. 1995) = (Hecht, J.,=20 concurring). Although we have moved to broad‑form jury = submissions, we do not=20 use the broad‑form submissions as a vehicle to deny a party the = correct charge=20 to which the party would otherwise be entitled. See Romero v. KPH = Consol.,=20 Inc., 166 S.W.3d 212, 227 (Tex. 2005).

C. Nature of the Evidence Required

Generally,=20 one person is not bound to anticipate negligent conduct on the part of=20 another. See Ft. Worth & D.C. Ry. Co. v. Shetter, 59 S.W. = 533, 535=20 (Tex. 1900). However, a person=92s negligence will not be excused where = wrongful=20 conduct of a third party is a foreseeable result of such negligence. = See El=20 Chico Corp. v. Poole, 732 S.W.2d 306, 314=9615 (Tex. 1987) (holding = that a=20 tortfeasor=92s negligence is not superseded by an intervening force or = event when=20 the intervening force or event is a foreseeable result of the = negligence);=20 Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex. 1985) = (noting=20 that subsequent criminal conduct is not a superseding cause of an injury = if the=20 criminal conduct is a foreseeable result of the tortfeasor=92s = negligence). Nor=20 will negligence of a party be excused if an alleged new cause is not = such as to=20 break the chain of causation and the original negligence concurs in = causing the=20 injury. See Gulf, C. & S.F. Ry. Co. v. Ballew, 66 S.W.2d 659, = 661=20 (Tex. Comm=92n App. 1933, holding approved) (holding that =93[w]hen the = new cause or=20 agency concurs with the continuing and co‑operating original = negligence in=20 working the injury,=94 the original party=92s negligence =93remains a = proximate cause=20 of the injury, and the fact that the new concurring cause or agency may = not in=20 such case have been reasonably foreseeable should not relieve the = wrongdoer of=20 liability=94).

So, = two=20 aspects of causation are involved in an intervening event or action = rising to=20 the level of a new and independent cause. First, the intervening event = or action=20 must not be ordinarily or reasonably foreseeable. See Phan Son Van v. = Pe=F1a, 990 S.W.2d 751, 754 (Tex. 1999). Second, the original acts = and=20 omissions must have run their course and been completed so that they did = not=20 actively contribute in any way to the injuries involved. See Bell v.=20 Campbell, 434 S.W.2d 117, 122 (Tex. 1968).

In=20 determining whether an intervening force rises to the level of a = superseding=20 cause, we have found the factors set forth in section 442 of the = Restatement of=20 Torts instructive. Phan Son Van, 990 S.W.2d at 754=9655. Those = factors=20 are:

(a) the=20 fact that the intervening force brings about harm different in kind from = that=20 which would otherwise have resulted from the actor=92s negligence;

(b) the=20 fact that the intervening force=92s operation or the consequences = thereof appear=20 after the event to be extraordinary rather than normal in view of the=20 circumstances existing at the time of the force=92s operation;

(c) the=20 fact that the intervening force is operating independently of any = situation=20 created by the actor=92s negligence, or, on the other hand, is or is not = a normal=20 result of such a situation;

(d) the=20 fact that the operation of the intervening force is due to a third = person=92s act=20 or to his failure to act;

(e) the=20 fact that the intervening force is due to an act of a third person which = is=20 wrongful toward the other and as such subjects the third person to = liability to=20 him;

(f) the=20 degree of culpability of a wrongful act of a third person which sets the = intervening force in motion.

Id.=20 (quoting Restatement (Second) = of=20 Torts =A7 442 (1965)).

In = Phan=20 Son Van we were reviewing a summary judgment to determine whether = the proof=20 of intervening cause was conclusive and warranted summary judgment. = Id.=20 Here we are faced with a different issue: whether there was legally = sufficient=20 evidence to raise the issue of intervening cause. See Bailey, 250 = S.W.2d=20 at 384. The questions of foreseeability and proximate cause generally = involve=20 practical inquiries based on =93common experience applied to human = conduct.=94=20 See City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987) = (citation=20 omitted). There is legally sufficient evidence of a matter when the = proof and=20 inferences from the proof furnish a reasonable basis for reasonable = minds to=20 reach differing conclusions as to the existence of the matter. See = Orozco v.=20 Sander, 824 S.W.2d 555, 556 (Tex. 1992).

III. Analysis

To = determine=20 if there is evidence supporting Crown Derrick=92s requested new and = independent=20 cause instruction, we must review the record to see if there is more = than a=20 scintilla of evidence on which reasonable jurors could base a finding = that (1)=20 Crown Derrick would not have ordinarily or reasonably foreseen that, = even if its=20 rope barriers were removed, the walkway would be left without protection = to=20 prevent personnel from falling into the opening; and (2) Crown = Derrick=92s=20 allegedly negligent actions were not continuing, but were complete and = had come=20 to rest. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. = 2005);=20 Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). = Although much=20 of the evidence and testimony is in conflict, there is some evidence = which would=20 support findings in Crown Derrick=92s favor as to both such matters.

A. Foreseeability

The = fact that=20 OSHA regulations and industry safety policies existed as to openings on=20 construction sites could support an inference that Crown Derrick would = not=20 reasonably foresee Rowan or its contractors removing barriers from = around the=20 ladder opening and then leaving the opening unprotected in violation of = safety=20 regulations and policies. Further, Rowan had its own worksite safety = policies in=20 place, requiring that all openings be protected in some manner by=20 hatches/handrails with gates or some means to prevent personnel from = falling=20 through openings. When Crown Derrick left the jobsite, the opening had = some=20 means to prevent personnel from falling through the opening. There is = evidence=20 that before Dew=92s accident on September 23, Crown Derrick was not = placed on=20 notice that its safety barriers (or their absence) were related to any = accidents=20 at the ladder opening and that Crown Derrick did not have control of the = fourble=20 platform after it left the jobsite in August.

Evidence was=20 introduced that after Crown Derrick=92s rope barriers were taken down, = worksite=20 and industry safety policies were complied with by persons (1) covering = the=20 opening with a heavy electrical junction box, and (2) when Rowan removed = that=20 box, erecting more rope barriers. Such evidence would support an = inference that=20 Crown Derrick=92s anticipating the opening would not be left unprotected = in=20 violation of safety policies was reasonable. There was evidence that = Rowan=92s=20 experienced construction supervisor was on the fourble platform a week = before=20 the accident and noted the presence of a rope barrier at the ladder = opening.=20 Such evidence would support inferences that (1) Rowan=92s supervisors = were aware=20 of the safety rules and inspected the rig to enforce compliance with = them,=20 including the rule that openings in walkways were not to be left without = safety=20 protections; and (2) the opening being left unprotected by third parties = in=20 violation of safety regulations and policies was not reasonably = foreseeable to=20 Crown Derrick.

B. Concurring Cause

The = opening=20 in the walkway was a required feature of the rig because it was to be = used in=20 the North Sea. Evidence showed that Crown Derrick assembled the derrick = and=20 walkway as it was designed, except as to the safety gate for which no = mounting=20 hardware was available. In lieu of a safety gate, rope barriers were = placed and=20 some evidence showed that the barriers complied with safety rules and = would have=20 prevented personnel from falling into the opening. Subsequent removal of = the=20 rope barriers and covering of the opening with a junction box was = evidence that=20 Crown Derrick=92s long‑completed actions were not a continuing = cause of later=20 events such as Dew=92s fall. Accordingly, there was evidence which would = have=20 allowed a jury to infer that absent subsequent independent acts of = persons not=20 under Crown Derrick=92s control, the rope barriers would have prevented = Dew from=20 falling through the opening. In sum, there was evidence that Crown = Derrick=92s=20 actions as to safety protections for the opening were complete, had come = to=20 rest, and that absent new and independent actions of third parties, Dew = would=20 not have fallen.

C. Restatement Factors

Reviewing the=20 evidence in light of factors in section 442 also leads to the conclusion = that=20 the removal of Crown Derrick=92s barriers and failure to replace the = barriers or=20 otherwise protect the ladder opening was a new and independent cause of = the=20 accident. Restatement (Second) = of=20 Torts =A7 442 (1965). The removal of not only Crown Derrick=92s = barrier but=20 also the subsequently placed additional protective devices and failure = to=20 reinstall some sort of protection appears to be extraordinary in view of = the=20 industry=92s and Rowan=92s safety rules, which were applicable to all = workers on the=20 rig. See id. =A7 442(b). The removal by third parties of not only = rope=20 barriers from around the opening, but a heavy metal covering placed on = the=20 opening at one time, reflect actions operating independently of the = situation=20 created when Crown Derrick placed barriers around the designed opening, = which=20 some evidence showed complied with applicable safety guidelines. See = id.=20 =A7 442(c). The failure to protect the opening after removal of Crown = Derrick=92s=20 rope barriers was due to third persons working in a controlled = construction=20 environment, not Crown Derrick=92s employees. See id. =A7 442(d). = The removal=20 of Crown Derrick=92s rope barriers by third persons and failure of those = third=20 persons to then place protective devices around the opening was wrongful = toward=20 Dew and was such as could subject the third persons to liability for = Dew=92s=20 injuries. See id. =A7 442(e). The removal of Crown Derrick=92s = protective=20 rope barriers and failure to reinstall some protective mechanism could = be viewed=20 as a culpable wrongful act by a third person in connection with the = accident.=20 See id. =A7 442(f).

IV. Application

The = plurality=20 opinion says that the risk of injury within control of and created by = Crown=20 Derrick was the risk of injury due to an open hole in the walkway = without=20 adequate safeguards. But, the risk of having a ladder opening in a = walkway was=20 not a risk within the control of Crown Derrick. The ladder opening was = required=20 by safety rules for drilling rigs to be used in the North Sea. Moreover, = industry standards, as well as OSHA=92s and Rowan=92s safety rules, = recognize a fact=20 of life on construction sites: sometimes openings must be left in floors = and=20 walkways for various reasons due to the nature of the construction = process. One=20 such reason is the reason for the opening in this case: it was a = designed=20 feature.

The = risk=20 within the control of Crown Derrick was the risk presented by inadequate = safeguarding of the opening. The Court=92s judgment denies to Crown = Derrick its=20 right to have the jury be properly instructed on the question of whether = Crown=20 Derrick should have foreseen that third parties would violate industry, = OSHA,=20 and worksite safety rules by leaving the ladder opening unprotected, and = whether=20 actions of other parties broke the causation chain between any actions = by Crown=20 Derrick and Dew=92s fall.

Foreseeability=20 requires more than viewing the facts in retrospect and charging a party = to=20 anticipate an extraordinary sequence of events whereby the defendant=92s = conduct=20 can be said to bring about the injury. See Doe v. Boys Clubs, 907 = S.W.2d=20 472, 478 (Tex. 1995). The evaluation of evidence as to foreseeability = and=20 proximate cause generally involves practical inquiries based on common=20 experience applied to human conduct. See City of Gladewater, 727 = S.W.2d=20 at 518.

As = to harm=20 from the omission, whether Crown Derrick=92s actions had come to rest = and the=20 actions of Rowan and its other contractors were new and independent = causes of=20 Dew=92s fall was a hotly contested issue throughout the trial. Crown = Derrick=20 contended in the court of appeals that there was legally insufficient = evidence=20 of both elements of proximate cause=97cause-in-fact and = foreseeability=97for the=20 jury finding to be upheld. Although the court of appeals overruled that=20 contention, the evidence on the issue, some of which is referred to = above and=20 more of which is referenced by the court of appeals=92 opinion, = reflected the=20 magnitude of the contest at trial over the question.

What we said=20 long ago bears repeating: In reviewing omissions from the jury charge, = =93we=20 should view the charge as practical experience teaches that a jury, = untrained in=20 the law, would view it.=94 Washington, 63 S.W. at 538. The = discussions in=20 reported cases of whether proximate cause instructions should or should = not=20 include new and independent cause language bear witness to the = subtleties=20 involved in what is a sufficient subsequent event or force to break the = chain of=20 causation between a party=92s negligence and an occurrence. To fail to = instruct=20 the jury on an established legal doctrine raised by the evidence and in = serious=20 contention at trial should not be held to be harmless error.

V. Conclusion

I = would hold=20 that a practical view of the evidence in this record yields the = conclusion that=20 there is legally sufficient evidence of new and independent cause to = require the=20 instruction to have been given as requested by Crown Derrick. I would = also hold=20 that the trial court=92s failure to give the instruction was not = harmless.

________________________________________

Phil=20 Johnson

Justice

OPINION = DELIVERED: June=20 30, 2006