Affirmed and Memorandum Opinion filed December 13, 2005.

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-03-00962-CV

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RAMON SANCHEZ, Appellant

 

V.

 

MARINE SPORTS, INC., Appellee

 

 

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 01-60982

 

 

M E M O R A N D U M   O P I N I O N

Appellant, Ramon Sanchez, appeals the trial court=s judgment entered in favor of appellee, Marine Sports, Inc., on his claims that Marine Sports= failure to provide a safe workplace caused his injuries.  We affirm. 

In August 2001, Sanchez was employee at Marine Sports as a boat detailer.  The responsibility of a boat detailer is to clean boats prior to delivery or prior to putting them on the showroom floor.  Sanchez was cleaning the outside of a boat.  As he was getting down from the back part of the boat, he braced himself with his hand, but his foot slipped and he fell.  Sanchez injured his elbow and his knee. 

Sanchez sued Marine Sports for common law negligence and for violations under Section 411.103 of the Texas Labor Code^[1] for failing to provide a safe workplace.  The trial court conducted a bench trial.  When Sanchez rested, Marine Sports moved for a directed verdict arguing that Sanchez had not proved an unreasonably dangerous condition existed on its premises causing his injuries as required in a premises liability case.  The trial court granted a directed verdict on two bases.  The first was on the basis argued by Marine Sports, i.e., Sanchez failed to prove the existence of a condition that posed an unreasonable risk of harm.  The second was on a basis not raised by Marine SportsCthat Sanchez had not proved that Marine Sports had breached its duty under the Texas Labor Code to provide a safe workplace. 

Marine Sports moved for a directed verdict, the trial court granted a directed verdict, and Sanchez appeals the granting of a directed verdict, citing the standard of review for a directed verdict.  However, this was a bench trial, not a jury trial.  When a defendant moves for a directed verdict in a bench trial, it is actually requesting that the trial court render judgment because there is no jury to direct.  Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 n.4 (Tex. 1993) (Gonzalez, J., concurring).  It had previously been the rule in Texas that the granting of a motion for judgment in non-jury trial was the equivalent to the granting of a directed verdict in a jury trial, and the standard of review for the granting of a directed verdict in a jury trial applied equally to the granting of a motion for judgment in a non-jury trial.  Qantal Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303 (Tex. 1988).  Also, even though the judge acted as both the trier of fact and law in a non-jury trial, he or she could only grant a motion for judgment at the close of the plaintiff=s case when there was no evidence to support the plaintiff=s cause of action.  Id. at 304. 

However, in Qantal Business Systems, Inc., the Texas Supreme Court held that because the trial judge is the arbiter of factual and legal issues in a non-jury trial, the appellate court must presume the trial court ruled on the sufficiency of the evidence.  Id. at 305.  Thus, there are distinctions between a directed verdict in a jury case and a motion for judgment in a non-jury caseCone such distinction being the standard of review on appeal.  Grounds, 856 S.W.2d at 422 (Gonzalez, J., concurring).  In the appeal of the granting of a motion for judgment in a bench trial, the legal and factual sufficiency of the evidence to support the judgment may be challenged as in any other non-jury case.  W. Wendell Hall, Standards of Review in Texas, 22 St. Mary=s L.J. 351, 446 (1998).  Questions of law are reviewed de novo.  Hatch v. Williams, 110 S.W.3d 516, 521 (Tex. App.CWaco 2003, no pet.).

We will proceed as if the trial court has granted a motion for judgment from which Sanchez appeals.  When a party attacks the legal sufficiency of an adverse finding on which he had the burden of proof at trial, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).  In making this determination, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  We credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not.  Id. at 827.  The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review.  Id.^[2]

Sanchez argues this case was based on Marine Sports= failure to provide a safe workplace under both common law and the Texas Labor Code, not for failing to warn of or correct an unreasonably dangerous condition on its premises, and that he presented more than a scintilla of evidence that Marine Sports failed to provide a safe workplace.  We agree with Sanchez that this is not a premises liability case.  However, for the reasons addressed below, we conclude the trial court properly granted judgment in favor of Marine Sports. 

In assessing Sanchez=s common law claim, we observe that Aan employer has certain nondelegable and continuous duties to his employees.  Among these are the duty to warn employees as to the hazards of their employment and to supervise their activities, the duty to furnish a reasonably safe place in which to labor and the duty to furnish reasonably safe instrumentalities with which employees are to work.@  Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975), overruled on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978).  While an employer is responsible for providing a safe workplace for its own employees, it is not an insurer of the employee=s safety.  Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21(Tex. 1993).  Therefore, the standard of conduct required of an employer in providing a safe workplace is ordinary care based on general negligence principles.  Id.; Southerland v. Kroger Co., 961 S.W.2d 471, 472 (Tex. App.CHouston [1st Dist.] 1997, no pet.).  To prevail on a negligence cause of action, the plaintiff must establish the existence of a duty, a breach of that duty, and damages proximately caused by that breach.  Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). 

Proximate cause consists of two elements: (1) cause in fact, and (2) foreseeability.  Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).  The plaintiff may not establish these elements by mere conjecture, guess, or speculation.  Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).  Cause in fact exists if Athe defendant=s act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred.@  Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995).  The plaintiff, however, has not shown cause in fact if the defendant=s negligence did no more than provide a condition which made the injury possible.  Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477.  Rather, A>[t]he evidence must go further, and show that such negligence was the proximate, and not the remote, cause of [the] resulting injuries . . . [and] justify the conclusion that such injury was the natural and probable result thereof.=@  Id.  (quoting Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939)).  Even if the injury would not have occurred but for the defendant=s actions, the nexus between the defendant and the plaintiff=s injuries may be too attenuated to constitute legal cause.  Union Pump Co., 898 S.W.2d at 776. 

Sanchez has not conclusively established that the failure to properly instruct him, provide boots or a Spanish-language operations manual, maintain a safety supervisor or safety manual, or conduct safety meetings was the cause in fact of his injuries.  He adduced no evidence, testimony or otherwise, that wearing boots while washing the boat would have prevented his injury.  He failed to show that specialized training was required to wash a boat; in fact, Sanchez had been a boat detailer for six or seven months at the time of his accident.  Sanchez presented no evidence demonstrating how safety meetings, a safety supervisor, or a safety manual would have prevented the accident.  Finally, while Marine Sports had an English-language operations manual, which Sanchez, who is fluent in Spanish only, could not read, there is no evidence of what information was included in that manual.  At most Sanchez showed that the failure to provide these things did no more than provide a condition that made the injury possible, not that it was a substantial factor in bring about the injury which would not have occurred otherwise. 

With respect to Sanchez= statutory cause of action, Section 411.103 of the Texas Labor Code provides:

Each employer shall:

(1) provide and maintain employment and a place of employment that is reasonably safe and healthful for employees;

(2) install, maintain, and use methods, processes, devices, and safeguards, including methods of sanitation and hygiene, that are reasonably necessary to protect the life, health, and safety of the employer=s employees; and

(3) take all other actions reasonably necessary to make the employment and place of employment safe.

Tex. Lab. Code Ann. ' 411.103. 

However, Chapter 411 of the Labor Code limits a party=s remedy for a violation of the chapter.  Foster v. Denton Indep. Sch. Dist., 73 S.W.3d 454, 462 (Tex. App.CFort Worth 2002, no pet.).  Section 411.004 states:

Except as specifically provided by Subchapter F, this chapter does not create an independent cause of action at law or in equity.  This chapter provides the sole remedy for violation of this chapter.

Tex. Lab. Code Ann. ' 411.004 (Vernon 1996). 

Subchapter F, as referenced in section 411.004, is comprised of sections 411.081 through 411.083.  Id. '' 411.081B.083 (Vernon 1996).  Section 411.081 provides for a toll-free telephone hotline for reporting Aviolations of occupational health or safety law.@  Id. ' 411.081.  Section 411.082 provides that an employer may not discriminate against an employee who uses the telephone service, in good faith, to report an alleged violation of an occupational health or safety law.  Id. ' 411.082.  Section 411.083 provides judicial relief for an employee whose employment is terminated or suspended in retaliation for reporting a violation.  Id. ' 411.083.  Thus, the only violation for which an employee may recover is the employee=s retaliatory discharge for reporting the safety violation to a telephone hotline.  Foster, 73 S.W.3d at 462.  Therefore, Sanchez may not maintain an action for any alleged violation of section 411.103. 

Accordingly, the judgment of the trial court is affirmed. 

 

 

 

/s/      J. Harvey Hudson

Justice

 

 

 

Judgment rendered and Memorandum Opinion filed December 13, 2005.

Panel consists of Justices Hudson, Edelman, and Seymore.