Moss v. Waste Management National Services, Inc.
(Tex.App.- Houston [1st Dist] Aug. 20, 2009) (Bland) (work site injury, premises liability, direct negligence,
right to control issue as predicate for liability, jury instructions)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland
01-07-01106-CV Kenneth W. Moss and Michelle Moss v. Waste Management National Services, Inc.
Appeal from 125th District Court of Harris County
Trial Court Judge: John Coselli
Dissent by Justice Jennings in Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st
Dist] Aug. 20, 2009)(Jennings) ("I would hold that the trial court erred in submitting the question to the jury
predicating Waste Management's liability to Moss on its right to control Rustin's work. Because it is
fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in
the law and the trial court's error probably caused the rendition of a harmful judgment, I would remand the
case to the trial court for a new trial. See Tex. R. App. P. 44.1(a)(1); Crown Life Ins. Co. v. Casteel, 22 S.W.
3d 378, 388 (Tex. 2000). The majority's holding and judgment to the contrary is in error. Accordingly, I
respectfully dissent.")
MAJORITY OPINION
This appeal arises from a jury’s verdict in favor of a property owner, sued for its negligence after a truck-
pedestrian accident occurred on its premises. A Rustin Transportation Company (Rustin) employee, driving
a company eighteen-wheeled truck, struck and injured Kenneth Moss, a fellow employee, while Moss
directed Rustin trucks at a waste transfer facility owned by Waste Management of Texas, Inc. (Waste
Management). Moss sued Waste Management, the premises owner, for negligence.[1] A jury found that
Waste Management did not control Rustin’s activities. Based on the jury’s finding, the trial court ordered
that Moss take nothing in his suit against Waste Management. Moss appeals the jury verdict and judgment,
contending that (1) the trial court erred in predicating the liability and damages issues on whether Waste
Management exercised control over Rustin’s activities, and (2) the jury’s right-to-control finding is against
the great weight and preponderance of the evidence. We conclude that the trial court did not err in
submitting the right-to-control issue and that factually sufficient evidence supports the jury’s verdict. We
therefore affirm.
Background
Facts giving rise to Moss’s suit
Waste Management works with other private and municipal waste disposal operations to collect
garbage. In connection with these activities, Waste Management owns transfer stations—in this case, the
Koenig Street station—where waste disposal truck drivers dump their loads. These strategically placed
transfer stations minimize the number of long trips to outlying landfills and allow the trucks to quickly return
to their routes.
As the facility collects waste, operators weigh, sort, and compact it, then load it onto trucks and deliver it to
landfills. One such operator, Rustin, contracts with Waste Management to load and haul processed
garbage from the Koenig Street station to landfills outside Houston.
Under the Loading and Transportation Service Agreement between Waste Management and Rustin (the
contract), Rustin agreed to serve as Waste Management’s preferred transporter for its loading and
shipment requirements at certain locations, including the Koenig Street facility. Rustin agreed to provide
personnel, tractor-trailer units, and equipment sufficient to load and transport up to 2,500 tons of waste
delivered daily to the facilities and to render its services in a legal and safe manner. The contract declares
that Rustin is responsible for “initiating, maintaining, and supervising all health and safety precautions,
requirements and programs for its employees, subcontractors, vendors and other persons in connection
with the [s]ervices.” Waste Management retained the right to “inspect, review, and monitor” Rustin’s
performance under the agreement to ensure satisfactory compliance.
As an employee of Rustin, Moss worked at the Koenig Street station as a “spotter,” directing trucks into the
bays as they entered the station and conducting periodic inspections to ensure that the garbage dumped at
the station did not contain hazardous waste. In late February 2004, one of Rustin’s drivers struck Moss
while backing his truck into the transfer station, causing Moss serious injuries.
Proceedings in the trial court
Moss sued Waste Management, asserting that it breached its duty of care to Moss by failing to ·
provide adequate warning to employees of contractors working at its facility; adequately supervise activities
on its premises; adequately control or limit the volume of garbage and traffic entering the facility; and
design the facility so that it could safely accommodate the volume of garbage and traffic it handles.
The parties tried the case before a jury. The jury heard disputed evidence concerning the extent to which
Waste Management exercised authority over the transfer station, but none that Waste Management
deviated in any material way from the oversight activities described in the contract. Both Waste
Management and Rustin managers consistently testified that Rustin alone was responsible for controlling
traffic at the transfer station, training its drivers and spotters, and hauling trash to the landfills.
At the close of evidence, the trial court prepared the jury charge with the parties’ participation. Over Moss’s
objection, the court’s first question to the jury inquired whether Waste Management had or exercised any
right of control over Rustin’s activities.[2] The question read:
Question No. 1:
Did Waste Management of Texas, Inc., exercise or retain some control over the manner in which Rustin
Transportation performed its duties and responsibilities at the WRS Transfer Station, other than the right to
order the work to start or stop or to inspect progress or receive reports?
Answer “Yes” or “No”:
The jury answered “no.” Because the trial court predicated the remaining questions on an affirmative
response to Question No. 1, the jury did not answer any questions about liability or damages. The trial
court then rendered judgment that Moss take nothing in his suit against Waste Management.
Discussion
Jury Charge
Moss first contends that the trial court erred in submitting a question to the jury predicating liability and
damages upon Waste Management’s right to control the manner in which Rustin performed its duties and
responsibilities. Specifically, Moss contends that the trial court erred in submitting Question No. 1 because
he brought a direct negligence action against Waste Management based on Waste Management’s
operation and management of the Koenig Street waste transfer station, not a premises liability claim against
Waste Management.
Error preservation
As a preliminary matter, we address Waste Management’s claim that Rustin waived this issue by merely
objecting to the submission of the question as “inappropriate” without also tendering a substantially correct
question. Texas Rule of Civil Procedure 274 provides that “[a] party objecting to a charge must point out
distinctly the objectionable matter and the grounds of the objection.” Tex. R. Civ. P. 274. Whether a party
must do more than object to preserve an issue for appeal, however, depends on the nature of the
objection. When a party, like Moss, contends that another party’s proposed question be omitted entirely,
that party is not required to tender a substantially correct definition or question. See Turner v. Precision
Surgical, L.L.C., 278 S.W.3d 245, 248 n.2 (Tex. App.—Houston [1st Dist.] Oct. 17, 2008, no pet.). Moss’s
objection preserved his contention for appellate review.
Standard of review for jury charge issues
We review the trial court’s submission of instructions and jury questions for an abuse of discretion.
European Crossroads’ Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 54 (Tex. App.—Dallas 1995, writ
denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts
without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985). A trial court has wide discretion in submitting instructions and jury questions.
Howell Crude Oil Co. v. Donna Ref. Partners, Ltd., 928 S.W.2d 100, 110 (Tex. App.—Houston [14th Dist.]
1996, writ denied).
Right to control
Moss asserts that the trial court erred in submitting Question No. 1 to the jury because his cause of action
against Waste Management is one for direct negligence, not premises liability. Under a premises liability
theory, the occupier of land has a duty to use reasonable care to keep the premises under its control in a
safe condition, and may be subject to liability for negligence in situations arising from a premises defect as
well as those arising from an activity or instrumentality. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606
(Tex. 2002); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985); see also Dyall v. Simpson
Pasadena Paper Co., 152 S.W.3d 688, 697 n.11 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(explaining that premises liability category is for those defects that existed on premises when independent
contractor entered on property or that were created through some means unrelated to independent
contractor’s activity).
Absent a duty, however, Waste Management cannot be held liable for Moss’s injuries as a matter of law.
See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (citing El Chico Corp. v. Poole, 732 S.W.2d
306, 311 (Tex. 1987)). The pertinent issue, then, is whether Waste Management owed Moss a duty to use
reasonable care in preventing the type of accident that resulted in Moss’s injuries.
Premises owners like Waste Management have no duty to see that independent contractors like Rustin use
reasonable care in performing their work unless they exercise control over the independent contractor’s
activity. Clayton W. Williams, Jr. v. Olivo, 952 S.W.2d 523, 527–28 (Tex. 1997); Redinger, 689 S.W.2d at
418. A plaintiff seeking to prove that the property owner is liable for a negligent act therefore must prove
that (1) the owner had a contractual right of control or exercised actual control, in a way that extends to the
operative detail of the contractor’s work, and (2) a nexus exists between the owner’s retained control and
the activity that caused the plaintiff’s injury. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008);
Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied).
Moss contends that, as the owner and operator of the Koenig Street station, Waste Management’s “right
to control its own premises is implicit,” which makes the jury question on right to control improper. Moss
relies on our decision in Lewis v. UPS, Inc., in which Lewis, an independent contractor hired to repair UPS’s
equipment, brought a negligence action for injuries resulting from activities conducted by UPS employees
while he was on UPS’s premises making the repair. 175 S.W.3d 811, 814 (Tex. App.—Houston [1st Dist.]
2004, pet. denied). Lewis alleged as the negligent acts causing his injury that (1) a UPS employee started
a conveyor without any warning, and (2) UPS’s warning buzzer did not work properly. Id. We held that,
because these acts were attributable to UPS and not an independent contractor, UPS’s right to control the
injury-causing activity was implicit. Id. Consequently, we held that the trial court did not abuse its discretion
in refusing to predicate the negligence issue on a right-to-control question. Id. In contrast, here, Moss did
not allege or produce evidence that a Waste Management employee’s acts directly caused this accident—a
Rustin employee drove the truck and another flagged it into the bay.
The facts thus resemble those in the Texas Supreme Court’s decision in Dow Chemical, in which the
plaintiff, a carpenter employed by Gulf States, an independent contractor retained by Dow, suffered injuries
when an overhead pipe, which another Gulf States employee had improperly installed, became unstable
and fell on him, trapping his arm and causing his injury. 89 S.W.3d at 605. The plaintiff sued Dow, alleging
it was negligent for failing to withhold a safe work permit for the area until the pipe was properly installed, or,
alternatively, for failing to implement a safety rule detailing how the ends of pipes should be secured before
allowing workers in an area.
Dow required Gulf States, like its other independent contractors, to comply with Dow’s safety rules and
regulations. The agreement between Dow and Gulf States, however, did not grant Dow any right either to
control the means, methods, or details of Gulf States’ work, or to direct the order in which Gulf States’ work
should be done.
Under those circumstances, the Supreme Court held, a duty of control is not implicit, and the plaintiff bears
the burden to prove right of control as a predicate to liability. See id. at 606–08; see also Olivo, 952 S.W.
2d at 529 (confirming that simple negligence question, unaccompanied by right-to-control issue, cannot
support recovery under premises liability theory). Similarly here, a fellow Rustin employee struck Moss with
his truck, and Moss’s claims against Waste Management were claims of a failure to warn or supervise.
Given these facts, we hold that the trial court did not err in concluding that a right to control is an element of
the simple negligence claim asserted against Waste Management.
Propriety of submitting right-to-control question
Because Waste Management’s right to control is an essential element of Moss’s negligence claim, the trial
court’s submission of Question No. 1 to the jury is improper only if the evidence conclusively shows that
Waste Management exercised or retained a right to control the acts that led to Moss’s injury. See Brown v.
Bank of Galveston, 963 S.W.2d 511, 515 (Tex. 1998); see also City of Keller v. Wilson, 168 S.W.3d 802,
814–15 (Tex. 2005). Moss first contends that the contract between Waste Management and Rustin
evidences that Waste Management retained a right to control. The Dow Chemical court observed that
either a contract or a premises owner’s actual conduct may give rise to a right to control, and corresponding
duty of care. 89 S.W.3d at 606–07. To support his contention, Moss points to provisions under which
Waste Management retained a right of access to the transfer station, as well as the right to inspect, review,
and monitor Rustin’s performance under the contract. Those provisions, however, do not indicate that
Waste Management retained control over the details of Rustin’s work, such as how or where Rustin loaded
its trucks. On the contrary, the contract expressly places with Rustin the sole responsibility for the care,
custody, and control of the waste deposited at the facility until it reaches its destination landfill, and
specifies that, according to the parties’ understanding, neither Rustin Transportation nor its employees
were agents or employees of Waste Management, “but an independent contract carrier.” Read as a whole,
the contract does not conclusively prove that Waste Management retained any right to control the means,
methods, or details of Rustin’s work, such that the trial court was required to direct a verdict in favor of Moss
on the issue.
Nor do the circumstances that resulted in Moss’s injury conclusively prove that Waste Management
retained an actual right to control the details of Rustin’s work in (1) driving or directing its trucks into the
bays, (2) conducting random inspections to prevent dumping of unauthorized waste at the transfer station,
or (3) choosing which of the transfer station’s loading bays to use in the course of handling the volume of
trash specified under the contract. Rather, witnesses at trial, including managers from both companies and
Moss himself, testified that Rustin employees handled those matters. Because the contract and the actual
circumstances do not conclusively prove that Waste Management retained control over the details of Rustin’
s work, the right to control remained a fact issue for the jury to decide. Accordingly, under the facts alleged
by Moss and proved at trial, we hold that the trial court did not abuse its discretion in submitting Question
No. 1 to the jury, and in predicating the remaining questions on the jury’s affirmative answer to that question.
Separate from a duty arising from its negligent activity, an owner or occupier has a duty to inspect the
premises for defects pre-existing the independent contractor’s entry and to warn the independent
contractor of concealed hazards about which the owner knows or should have known. Shell Oil Co. v.
Khan, 138 S.W.3d 288, 295 (Tex. 2004). While Moss alleged in his petition that the defective design of the
premises caused his injuries and that Waste Management did not warn him of those defects, at trial he did
not produce any evidence of any concealed hazard causing Moss’s injury of which Waste Management
should have, but failed to, warn, independent of Waste Management’s failure to properly control Rustin’s
activities on its premises. The negligence issue, as framed for the jury, was one of negligent acts or failures
to act, not of a non-obvious premises defect or hazard. We thus hold that the trial court did not err in
predicating the question of Waste Management’s liability to Moss on its right to control Rustin’s work
because the jury heard no evidence of a concealed hazard on the premises, independent from allegations
that Waste Management failed to properly supervise or control Rustin’s activities at the Koenig Street
station.
Factual Sufficiency
As an alternative ground for appellate relief, Moss contends that the jury’s finding that Waste Management
did not exercise or retain some control over the manner in which Rustin performed its duties and
responsibilities was against the great weight and preponderance of the evidence and was manifestly unjust.
Standard of Review
In reviewing a factual sufficiency point, we consider all the evidence supporting and contradicting the
finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); HTS Servs., Inc. v. Hallwood
Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.). We set aside
the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Courts of appeals should detail the
evidence relevant to the issue and state why the jury’s finding is so against the great weight and
preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635
(Tex. 1986). Further, courts of appeal should state in what regard the contrary evidence greatly outweighs
the evidence in support of the verdict. Id.
Moss first directs our attention to the testimony of Charles Rivett, who was Waste Management’s senior
district manager for disposal operations at the time of Moss’s injury, specifically, Rivett’s testimony that he
oversaw activities at three transfer stations. In his testimony, Rivett denied having any oversight authority
over Rustin’s day-to-day operations. Rather, he explained, his duties consisted of ensuring that Rustin
conducted regular training programs and asking whether Rustin had any particular concerns concerning
operations as they pertained to Waste Management. Rivett stated that Waste Management relied on
Rustin to provide its own safety and operate within applicable rules, and expected Rustin to notify him if it
believed that Waste Management should correct an unsafe condition or situation.
Moss asserts that the testimony of Rivett and Douglas Travis, Rustin’s safety director at the Koenig
Street transfer station, also proves that Waste Management retained exclusive control over (1) volume of
trash dumped at and removed from the premises, (2) the design of the premises, (3) entry to and exit from
the facility, (4) authorization of persons and entities to dump at the premises, (5) hours of operation, (6) flow
of traffic into facility, (7) financial arrangements for dumping, (8) overall safety and supervision of premises,
and (9) selection of Rustin personnel to be used at the premises.
According to Travis, trucks entering the transfer station first rolled onto the scale, and Waste Management
handled “the billing side of that,” but that, “once they come off the scale, they become [Rustin’s]
responsibility.” Rustin then directed the trucks’ movement and unloading, loading of tractor trailers, and
unloading at the landfill. Travis also explained that Waste Management periodically brought in safety and
compliance personnel to perform site inspections to ensure that Rustin complied with the state permit
requirements and was prepared for the possibility of a random audit by the Texas Commission on
Environmental Quality (TCEQ). A requirement that Rustin comply with governmental regulations and safety
rules, however, is not conclusive evidence that Waste Management retained some control over Rustin’s
work. See Dow Chem. Co., 89 S.W.3d at 611 (citing Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354,
357–58 (Tex. 1998)).
Moss himself admitted that Rustin was in control of the facility: “They are in control of all the trash that
comes in. They are in control of all operations on the facility itself. It was my understanding.” The
evidence, viewed as a whole, does not show that Waste Management exercised control over the operative
details of Rustin’s work—specifically over the direction and control of traffic within the transfer station—to
the extent that they jury’s finding is against the great weight and preponderance of the evidence and is
manifestly unjust. Accordingly, we hold that factually sufficient evidence supports the jury’s verdict.
Conclusion
We hold that the trial court did not abuse its discretion in submitting a right-to-control question to the jury as
a predicate to liability, and that factually sufficient evidence supports the jury’s finding that Waste
Management did not control the activities of the trucking company employees that caused this accident.
We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Hanks, and Bland.
Justice Jennings, dissenting.
[1] Moss’s daughter, Michelle Moss, is also a party. For ease of reference, and because her loss of
consortium claim derives wholly from Moss’s negligence claims, we refer to Moss in the singular. See
Reagan v. Vaughn, 804 S.W.2d 463, 466 (Tex. 1990).
[2] The trial court used the applicable pattern jury charge to draft the question. See Committee on Pattern
Jury Charges of the State Bar of Texas, Texas Pattern Jury Charges—Malpractice, Premises & Products §
66.33 (2004 ed.).