Court of Appeals of Texas,

Waco.

Billy Glenn ELWOOD, Appellant

v.

The KROGER CO., Appellee.

No. 10-02-00349-CV.

|

Nov. 10, 2004.

From the 18th District Court, Johnson County, Texas, Trial Court # 54-96, John Edward Neill, Judge.

Attorneys & Firms

Rodney R. Elkins, Rodney R. Elkins & Co., Dallas, for appellant.

Brian J. Brandstetter, Gwinn & Roby, Ft. Worth, for appellee.

DISSENTING OPINION

TOM GRAY, Chief Justice.

*1 This case concerns a personal injury suit. The trial court rendered judgment for Elwood on a jury verdict. Elwood and The Kroger Co. appeal. We should address Elwood’s issue that the trial court erred in granting Kroger’s motion for new trial, and reverse and render judgment on Kroger’s issue that there was no evidence that it was negligent. Because the majority does otherwise, I respectfully dissent.

In Elwood’s second issue, he contends that the trial court erred in granting Kroger’s motion for new trial. In 1999, the trial court granted a default judgment in favor of Elwood. Thereafter, the trial court granted Kroger’s motion for new trial and set aside the default judgment. The parties appeal the judgment rendered after further proceedings in 2002. An order granting a motion for new trial cannot be challenged by appeal “either by direct appeal from that order, or from a final judgment rendered after further proceedings in the trial court.” Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex.1984) (per curiam). Accordingly, we should “consider,” cf. Elwood v. Kroger Co., No. 10-02-00349-CV, slip op. at 11 (Tex.App.-Waco Nov.10, 2004, no pet. h.) (majority op.) (mem.op.), and overrule, Elwood’s second issue.

In Kroger’s first issue, it contends that there was no evidence that it was negligent. Kroger preserved its complaint by its objection to the submission of the negligence issue to the jury and by its motion for judgment notwithstanding the verdict. See Tex.R.App. P. 33.1(a); Tex. Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 316 (Tex.1994); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.1992).

An employer’s duty to employees includes “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); see Stier v. Reading & Bates Corp., 992 S.W.2d 423, 433 (Tex.1999). An employee who sues his or her employer that does not have workers’ compensation insurance coverage for personal injuries sustained in the course and scope of employment must prove negligence on the part of the employer. Tex. Lab.Code Ann. § 406.033(d) (Vernon Supp.2004); see Excel Corp. v. Apodaca, 81 S.W.3d 817, 819 (Tex.2002). An employee suing an employer for negligence bears the burden of presenting legally sufficient evidence that the employer required the employee to work “where a reasonably prudent employer would not have done so.” Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995).

“When the employee [i]s doing the same character of work that he ha[s] always done and that other employees in other stores [a]re required to do, there [i]s no negligence.” Werner, 909 S.W.2d at 869; see Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 3-5, 175 S.W.2d 249, 250-51 (1943); see generally Quentin D. Brogdon, Non-Subscriber Liability for Employee Injuries, 60 Tex. B.J. 628 (1997). “When there is no evidence that the lifting involved is unusual or poses a threat of injury, plaintiff has failed to establish a prima facie case.” Werner at 869; see Leitch v. Hornsby, 935 S.W.2d 118, 119 (Tex.1996). Similarly, where the employee chooses an unsafe means of accomplishing a task although safe means exist, the employer is not negligent. See Town & Country Mobile Homes, Inc. v. Bilyeu, 694 S.W.2d 651, 654-55 (Tex.App.-Fort Worth 1985, no writ); Fields v. Burlison Packing Co., 405 S.W.2d 105, 108 (Tex.Civ.App.-Fort Worth 1966, writ ref’d n.r.e.); Great Atl. & Pac. Tea Co. v. Lang, 291 S.W.2d 366, 367-68 (Tex.Civ.App.-Eastland 1956, writ ref’d n.r.e.).

*2 Elwood was employed by Kroger as a grocery store clerk. That job included taking customers’ groceries to their cars in a shopping cart, and putting the groceries into customers’ cars. While doing so on one occasion, Elwood balanced himself on one leg while holding the cart with the other, braced himself by placing one hand on the pickup truck door jamb, and lifted a sack of groceries to put inside the truck with the other hand; the customer closed the door on Elwood’s hand.

Kroger points to Elwood’s testimony that he could have put the groceries into the customer’s truck more safely than by balancing on one leg and resting his hand in the door jamb, and that the job of clerk was simple. Elwood contends that Kroger should have trained him to put groceries into cars, and should have provided carts with locking wheels or wheel blocks, or should have provided a second clerk to assist him.

Considering the evidence supporting the verdict, and the undisputed evidence, there is no legal evidence that Kroger provided an unreasonably unsafe workplace or unreasonably unsafe instrumentalities so as proximately to cause Elwood’s injuries. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, — U.S. —-, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex.2002); Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex.1994); Leitch, 935 S.W.2d at 119; Azua v. Dr Pepper Bottling Co. of Tex., No. 10-03-00371-CV, slip op. at 2-3 (Tex.App.-Waco Oct.27, 2004, no pet. h.) (mem.op.). Accordingly, we should sustain Kroger’s first issue. We should then reverse the judgment and render judgment that Elwood take nothing from Kroger. Because the majority does not, I respectfully dissent.

Because the determination of these issues would be dispositive of the appeal, I will not discuss my disagreements with the remainder of the majority’s opinion. I note only in passing that Elwood requested the proportionate responsibility issue, and thus waived his complaint about it. See Tex.R.App. P. 33.1(a); Tex.R. Civ. P. 274; In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003), cert. denied, — U.S. —-, 124 S.Ct. 1674, 158 L.Ed.2d 371 (2004); Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94-95 (Tex.1999).