January 18, 2002The Supreme Court only rendered two decisions in December, 2001, that were of any significance. In Shah v Moss, the Court continued its conservative rulings and held that the statute of limitations in a medical malpractice case begins to run from the date of the malpractice; if the date of alleged malpractice cannot be determined then the statute begins to run on either the last date of the relevant course of treatment or the last date of the relevant hospitalization. In a surprising move, the Court in Lee Lewis Construction, Inc. v Norma Harrison et al, found that the general contractor had sufficient control over the employees of a subcontractor to establish liability on behalf of the general contractor. This decision represents a departure from the conservative trend of decisions by the Supreme Court. I. LIMITATIONS IN A MEDICAL MALPRACTICE CASE RUNS FROM THE DATE THAT THE ACT OF NEGLIGENCE IS ASCERTAINABLE: The Court in Harshad G. Shah, M.D. v Moss, (decided on December 20, 2001) held that the statute of limitations begins to run in a medical malpractice case on the date of the alleged tort when the tort was committed on an ascertainable date. While the Court acknowledged that Article 4590i, §10.01, provides three possible dates upon which the statute of limitations begins to run, the Court maintained that "a plaintiff may not choose the most favorable date that falls within §10.01's categories" if the date of the alleged tort is ascertainable.
Ronald Moss sued Dr. Harshad G. Shah as a result of eye surgery performed by Dr. Shah. Mr. Moss eventually lost the sight in his right eye. The relevant dates in connection with the treatment of Mr. Moss by Dr. Shah are as follows:
Dr. Shah filed a Motion for Summary Judgment in the trial court on both of Moss' negligence claims. Dr. Shah first contended that Moss should have filed suit within two years of November 28, 1992, on his negligent surgery claim "...because the surgery occurred on an ascertainable date and thus limitations runs from the date from any resulting injuries." Dr. Shah also argued that the plaintiff's claim that he engaged in a negligent course of treatment which ended at the time of the last visit on July 24, 1995, was incorrect in that the last treatment for the detached retina occurred on October 21, 1993. Dr. Shah therefore contended that even if he had negligently removed the scleral buckle on November 28, 1992, the course of treatment ended on October 21, 1993. Moss argued that Dr. Shah had fraudulently concealed his alleged malpractice. He claimed that if the statute of limitations under Art. 4590i, §10.01, applied in this case, then such section is in violation of the Texas Open Courts provision.
The Court first pointed out that §10.01 of Art. 4590i provides for three possible limitations periods for medical malpractice claims: "(1) the occurrence of the breach or tort; (2) the last date of the relevant course of treatment; or (3) the last date of the relevant hospitalization." The Court held that if the date of the tort can be determined then the plaintiff cannot use the last date of the relevant course of treatment or the last date of the relevant hospitalization as the date from which the statute of limitations is determined. The Court had no problem in holding that limitations barred the negligent surgery claim in that Dr. Shah performed the alleged negligent surgery on November 28, 1992, and suit was not filed until 1996.
With regard to the claim that Dr. Shah failed to provide appropriate follow-up care, the Court found that the evidence showed that the last time Dr. Shah saw Mr. Moss for follow-up care for the November 28, 1992, surgery was on October 23, 1993. While Dr. Shah did see Mr. Moss on other visits, such visits were yearly check-ups and were not follow-up care visits. As a result, the Court held that the last date that could be applicable to the alleged negligent "follow-up" theory was October 23, 1993. The Court therefore found that more than three years had passed from October 23, 1993, until suit was filed which barred Ronald Moss's claim on this basis.
The Court gave little credence to the fraudulent concealment claim maintained by the plaintiff. In particular, the plaintiff did not present any evidence to show that Dr. Shah knew that he negligently performed the surgery on November 28, 1992, and that he concealed this knowledge thereafter. As a result, the Court concluded that the plaintiff did not present a fact issue showing that Dr. Shah negligently concealed any alleged malpractice.
The Court also gave no credence to the Open Courts challenge by Mr. Moss. The Court first held that as a factual matter that "...Moss had a reasonable opportunity to discover the alleged wrong and bring suit within the two year limitations." Moreover, the Court found that as a matter of law, Moss had no explanation why he waited 17 months from the time he discovered the second detached retina until he filed suit. The Court held that a 17 month period from the time of the second injury until the time suit was filed was too long of a period of time to bring a claim even under the Open Courts provision of the Texas Constitution.
The Court has now conclusively established that in a medical malpractice claim the statute of limitations begin to run on the date that the alleged malpractice was committed if this date can be determined. II. AWARD OF PUNITIVE DAMAGES AGAINST GENERAL CONTRACTOR WHO WAS FOUND TO HAVE EXERCISED CONTROL OVER SAFETY MEASURES FOR SUBCONTRACTORS WAS UPHELD: In Lee Lewis Construction, Inc. v Norma Harrison, et. al., (decided on December 20, 2001) the Supreme Court upheld a jury award of punitive damages for $5,000,000.00 against a general contractor which was found by a jury to have been both negligent and grossly negligent.
LLC was hired by Lubbock's Methodist Hospital as a general contractor to remodel the eighth floor and construct a ninth and tenth floor addition to the hospital structure. LLC subcontracted with KK Glass to perform the interior glass-glazing work for the project. Jimmy Harrison, employed by KK Glass, was installing thermal insulation and caulking between the window frames on the tenth floor when he fell. He died from injuries sustained in the fall. The evidence presented to the jury showed that Harrison was not using an independent life-line.
In 1985, the Court had adopted the Restatement (Second) of Torts §414 (1965): "...that one who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." Under the Restatement and the line of cases which followed its adoption, a general contractor does not owe a duty to ensure that the work of an independent contractor is performed in a safe manner, unless the general contractor retains some form of control over the manner in which the independent contractor performs its work. When the general contractor does exercise some control over a subcontractor's work he may be liable unless he exercises reasonable care in supervising the subcontractor's activity. The question to be answered in such a case is whether some form of control was retained and if so, was there reasonable care used in the supervision of the activity. The right of control or retained control can be established either through the contract or through the actual exercise of control.
LLC challenged only the legal sufficiency of the evidence to support the jury's finding that it retained the right to control safety on the job site and the court of appeals' interpretation of the contracts at issue. It did not challenge the application of §414 of the Restatement or argue for a change in the law. Therefore, pursuant to the appellate standard for the review of a legal insufficiency claim, the Court only reviewed the evidence which supported of the jury's finding.
The Harrisons contended that LLC observed and expressly approved of KK Glass employees using faulty fall protection equipment, including using a bosun's chair without an independent lifeline. The Court noted supporting trial testimony as follows: (1) LLC's job superintendent, C.L. Lewis, had the responsibility of routinely inspecting the ninth and tenth floor addition to the south tower to see to it that the subcontractors and their employees properly utilized fall protection equipment; (2) C.L. Lewis personally witnessed and approved the specific fall protection system utilized by the subcontractor; (3) C.L. Lewis approved the lanyard system; and (4) LLC did not object to the subcontractor's employees using a bosun's chair without an independent lifeline. The Court reiterated that although Texas law makes clear that a general contractor is not an insurer of safety on the jobsite, "we agree with the Harrisons that the testimony highlighted above constitutes more than a scintilla of evidence that LLC retained the right to control fall protection systems on the jobsite." Because the Court determined that LLC factually and actually retained the right to control fall protection on the jobsite, it did not address the argument that LLC did not retain this right of control by contract.
LLC had challenged the sufficiency of the evidence to support the jury finding that its conduct was the proximate cause of Harrison's death. Proximate cause consists of cause in fact and foreseeability. In order for the act complained of to be the cause in fact of the harm, it must be established that the harm would not have happened without the act. At trial an LLC employee testified that Harrison would not have died from his fall if he had been secured by an independent life line. The LLC employee, KK Glass employees and the expert witnesses all testified that the use of independent life lines would have been mandated with an effective fall protection system. The evidence showed that LLC required the use of independent life lines by its employees, but not for KK Glass employees. The Court stated that LLC could have prevented Harrison's death "if it had enforced its own safety rules and required KK Glass employees to use independent life lines." The Court found that there was more than a scintilla of evidence from which the jury could have concluded that LLC's failure to require KK Glass employees to use independent lifelines was a substantial factor in causing Harrison's death. The second element- foreseeability - concerned whether the dangers created by LLC could have been reasonably anticipated. The Court reiterated that "[f]oreseeability does not require an actor to anticipate the precise manner in which the injury will occur; instead the injury need only be of a general character that the actor might reasonable anticipate." The testimony presented at trial showed that LLC knew that falls were one of the top causes of death in multi-story construction projects. LLC further was aware that KK Glass employees would be doing work on the outside of the building, creating an increased risk for falls. The Court found that the testimony presented was more than a scintilla of evidence that LLC foresaw the general character of injury that Harrison sustained. The Court concluded that the evidence of proximate cause was legally sufficient.
LLC had also challenged the legal sufficiency of the evidence to support the jury's gross negligence finding. Therefore, the Court examined the evidence in light of the two components involved in determining gross negligence: (1) viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. The Court found that there was more than a scintilla of evidence that, viewed from LLC's standpoint, working on the tower's ninth and tenth floors without using an independent lifeline created an extreme risk of a fatal fall. Lee Lewis testified at trial that falls are among the top reasons for serious injuries or fatalities on multi-story construction projects. C.L. Lewis, along with several expert witnesses, testified that the project posed an apparent risk for falls. The Court stated that the dangerous nature of a multi-story construction project by itself is not sufficient to satisfy the first component of the test. However, the Court concluded that in this case there was enough evidence to support the objective component of the test, the extreme risk of serious injury, apparent to anyone in LLC's position, from not using an independent lifeline while doing exterior work on the tenth floor of a building. The Court also found that there was sufficient evidence to support the test's subjective component. C.L. Lewis testified at trial that he witnessed KK Glass employees working from the window sills of the ninth and tenth floors using only safety belts and lanyards. He testified, as did other LLC executives and expert witnesses, that KK Glass use of safety belts and lanyards, without safe work platforms or independent lifeline, did not provide an effective fall protection system. He admitted that even after observing KK Glass' ineffective fall protection system, he did nothing about it. The testimony also showed that though LLC observed the ineffective system, they still approved it. Further, LLC had their own employees use the life-lines, though not requiring KK Glass to do so. The Court found that the evidence presented showed that LLC was subjectively aware of the extreme risk of serious injury to KK Glass employees, but consciously chose to do nothing. Because there was more than a scintilla of evidence supporting each element of the test, the Court concluded that the evidence of LLC's gross negligence was legally sufficient.
This case supports the saying that "bad facts make bad law." In actuality, the Court did not expand the liability of a general contractor beyond that recognized by the Restatement. However, the extreme nature of the facts of the case, and the nature of the appeal, which was taken only in terms of a challenge to the legal sufficiency of the evidence, makes this case appear to be an anomaly and may cause this opinion to be misinterpreted by lower courts. Please feel free to call any of our partners or associates with any questions that you may have at 361-881-9217 or fax us at 361-882-9437. |
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Volume III, No. 1
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