Court of Appeals of Texas, Houston (14th Dist.).

Sharon L. PACE, Individually and on Behalf of the Estate of Stacy Lee Moore, and Carol Moore-Orr, as Next Friend of Amber Renee Moore, a Minor, Appellants.

v.

NORTH HOUSTON POLE LINE CORPORATION, and Houston Lighting & Power Company, Appellees.

No. 14-97-00140-CV.

|

May 6, 1999.

MURPHY, C.J., HUDSON and FOWLER, JJ

OPINION

MURPHY.

*1 This is a wrongful death premises liability case. Appellants sued individually and on behalf of the estate of Stacy Lee Moore (Moore), who was electrocuted while on the job as a utility line worker for appellee, North Houston Pole Line Corporation (NHPL), an independent contractor for appellee, Houston Lighting & Power Company (HL & P). After a three week jury trial, the jury found HL & P was not negligent, NHPL was not grossly negligent, and the accident was caused by Moore’s negligence. Appellants appeal from the take nothing judgment in nine points of error, asserting the trial court’s charge was erroneous, the evidence is legally and factually insufficient, and the trial court improperly admitted and excluded evidence. We affirm.

I. Background

Moore, an electrical utility line worker, was electrocuted in the course of his employment for NHPL. NHPL works as an “outside line constructor” for HL & P, performing much of the routine maintenance work for the electric distribution system covering North Houston.

On the day of the accident, January 28, 1993, NHPL was working on HL & P electrical lines performing routine maintenance work in the vicinity of Hays and Elysian Streets to raise secondary lines on a utility transformer “joint use” pole.¹ The crew consisted of four workers: Gary Gordy, Brian Travis, Louis Taylor and Moore. Gordy was a journeyman lineman and foreman of the crew who had worked for NHPL for fourteen years. Travis was the second in command and had been a journeyman since August of 1992, with thirteen years experience at NHPL. Journeyman linemen are authorized to perform all manner of electrical-related tasks. Taylor, the junior member of the team, was a second period apprentice. Moore had been in training at NHPL for almost two years and was qualified as a fifth level “hot” apprentice.² Gordy assigned Moore and Travis to work on a pole near a residence at 3107 Elysian, while he and Taylor put down “anchors,” at a location down the block.

Part of the job included raising the system neutral, which runs with the secondary lines and was connected to a bracket on the pole. Moore had raised secondary lines many times previously, and raising secondaries was considered a routine task. While Moore went up in the elevated lift bucket to raise the secondaries, Travis was on a ladder about twenty feet from the pole working to replace the “house drops,” service lines running from the utility pole to the residence. Before Moore went up in the bucket to raise the secondaries, he noticed the lower portion of the pole ground was missing, which is not unusual because these copper wires are frequently stolen by vandals. Moore informed Brian Travis, who replied he had seen it and they would fix it later.

Moore and Travis also noticed the jumper wire connecting the system neutral to the pole ground was too short to permit raising the system neutral, so Moore would have to cut the wire. The jumper wire connected to the system neutral serves as a ground for the pole and transformer.³ To cut the wire safely, Moore was to attach a mechanical jumper, which is a short insulated wire that can be clamped on either side of a cut, to the system neutral and pole ground to bypass the break, and he was to wear insulated rubber gloves. He took both gloves and a mechanical jumper with him in the bucket. Moore and Travis did not notice that the case ground strap at the top of the pole, the second grounding system, was not properly connected. When Moore cut the jumper wire to the system neutral, he therefore cut the last remaining path between the transformer and the system neutral. It is undisputed that Moore failed to use a mechanical jumper or wear rubber gloves when he cut the jumper wire. He then must have touched either the neutral or the pole ground with his bare hand when he cut the jumper, completing the circuit, and he was electrocuted.

*2 Appellants, Moore’s mother and minor daughter, sued HL & P, the owner of the overhead electrical lines and equipment on which Moore was working, for negligence, and they sued Moore’s employer, NHPL, for gross negligence.⁴ A take nothing judgment was entered on the jury’s verdict that HL & P was not negligent, NHPL was not grossly negligent, and that Moore was 100% contributorily negligent. Appellants’ motions for new trial and for judgment n.o.v. were overruled. This appeal resulted.

II. Charge Error

We review charge error under an abuse of discretion standard while recognizing that there is a presumption in favor of broad-form submission of questions. See Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). Rule 278 requires the trial court to submit requested questions to the jury if the pleadings and any evidence support them. See Tex.R.Civ.P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). Failure to submit a question on which the requesting party has the burden of proof is reversible error only if the question was requested in writing in substantially correct form. See Tex.R.Civ.P. 278. It is not reversible error to fail to submit “other and various phases or different shades of the same question.” Id.

The trial court has wide discretion in submitting explanatory instructions and definitions. See Penick v. Christensen, 912 S.W.2d 276, 287 (Tex.App.-Houston [14th Dist.] 1995, writ denied). Instructions and definitions are proper when they are raised by the written pleadings, supported by the evidence, and they aid the jury in answering the questions in the charge. See Tex.R.Civ.P. 277, 278.

If error in the charge is found, we then review the pleadings, evidence, and the entire charge to determine if the error is harmful. See Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986). To reverse a judgment based on error in the charge, appellant must establish the error complained of (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. See Tex.R.App.P. 44.1(a).

A. Duties of Premises Owner

In their first point of error, appellants assert the trial court erred in refusing to give their instructions regarding HL & P’s duty to Moore as to hidden defects on the premises and HL & P’s right to control NHPL’s work. Appellants contend they were denied submission of a valid theory of recovery and the jury was confused.

Appellants first complain the trial court refused to submit an instruction on the hidden defect, the loose grounding strap. They asked the court to submit proposed instruction 6, which states:

You are instructed that Houston Lighting & Power Co., as owner/occupier of the premises, had a duty to maintain the premises in a reasonably safe condition, to inspect the location where work was to be performed, and to warn of any dangerous conditions that were not open and obvious.

*3 As support for this instruction, appellants cite to the general law that an owner or occupier of a premises has a duty to use reasonable care to make the premises safe for business invitees, which includes the duty to maintain the premises in a reasonably safe condition, the duty to inspect the premises to discover dangerous conditions, and the duty to warn of hidden dangers. See, e.g., Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997); Shell Chemical Co. v. Lamb, 493 S.W.2d 742, 746-47 (Tex.1973). It is undisputed Moore was an invitee on HL & P’s premises.⁵

The Texas Supreme Court addressed the proper submission of a premises liability case in Keetch v. Kroger, 845 S.W.2d 262, 266 (Tex.1992). The court held that a general negligence question is a correct broad form question in a premises liability case involving an invitee, as long as the question is accompanied by appropriate instructions, such as the following:

“Negligence,” when used with respect to an owner or occupier of a premises, means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should know about.

“Ordinary care,” when used with respect to an owner or occupier of a premises, means that degree of care which would be used by an owner or occupier of ordinary prudence under the same or similar circumstances.

Id. at 267.⁶

The charge submitted to the jury in this case complied with the requirements in Keetch.⁷ By defining “negligence” as to HL & P as the “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition,” the charge incorporated appellants’ proposed “hidden defect” instruction. The Pattern Jury Charges do not recommend a separate instruction for hidden defects. In fact, the comment to the former suggested pattern jury charge for premises liability where the plaintiff is an invitee, states:

The basic duty of the possessor of a premises in exercising ordinary care to keep the premises in reasonably safe condition may include inspecting the premises to discover any latent defects and to make safe any defects or to give an adequate warning. Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex.1972).

Texas Pattern Jury Charges-Malpractice, Premises & Products, PJC 66.3 (1997).

Thus, the duty appellants assert should have been submitted is included in the broad form question. Even though appellants’ proposed instruction 6 represents a substantially correct statement of the law, an additional hidden defect instruction would have been an unnecessary surplus instruction. See Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984) (holding that the jury need not and should not be burdened with surplus instructions, even where they include correct statements of the law).

*4 Moreover, appellants submitted proposed instructions 3 and 4, which are identical to instructions 2 and 3 that were actually submitted. They cannot now complain of error in a charge they also proposed. Parties may not invite error by requesting an issue and then objecting to its submission. See General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993); Winkle v. Tullos, 917 S.W.2d 304, 316 (Tex.App.-Houston [14th Dist.] 1995, writ denied).

In connection with point one, appellants also argue that by instructing the jury that HL & P could not be liable on account of the missing pole ground, the court effectively determined that the missing pole ground was an open and obvious defect. There is no such instruction in the charge. The trial court did, however, orally instruct the jury to this effect. Specifically, in response to HL & P’s request for a limiting instruction as to the admissibility of a photograph of the pole, the court stated:

The Defendant’s objection is sustained and the jury is instructed that this photograph, insofar as it shows a missing piece of … pole ground wire at the bottom of the pole, it is not admissible against HL & P and should not be considered as to HL & P’s liability.

Appellants made no objection to this instruction. A complaint that the court has improperly commented on the evidence is waived in the absence of a timely objection. See LaCoure v. LaCoure, 820 S.W.2d 228, 237 (Tex.App.-El Paso 1991, writ denied).

Later, in response to a question from the jury during deliberations, the court informed the jury:

HL & P had no duty to plaintiff to repair the missing pole ground or to warn of the fact it was missing. HL & P may not be held to be negligent for failing to repair or warn of the missing pole ground.

Only HL & P properly objected to the instruction.⁸ While appellants may have argued in chambers the instruction was incorrect, they failed to make their objection on the record as HL & P did. Appellants only statement on the record was as follows:

Plaintiff originally argued that the-the instruction really ought to be HL & P had no duty to repair or warn of the dangerous condition on the premises that is open and obvious and with respect to the reason that-that the inspection, you have a system and the system requires under the-under the code inspection on a regular basis and specifically the strap is a missing portion of that system for which HL & P may be held liable because it is not open and obvious and it is a hidden danger and the pole bond could put them on notice of a need to inspect the system.

Appellants now raise a different complaint. They contend the trial court’s instruction was an incorrect statement of the law and a comment on the evidence. Appellants argue that the trial court took a fact question from the jury and in effect instructed a verdict that HL & P had “no duty” to Moore on account of the missing pole ground, an open and obvious condition. In post-submission briefing, appellants assert that the Texas Supreme Court has expressly abolished this “no duty” doctrine, citing Parker v. Highland Park, Inc., 565 S.W.2d 512, 517 (Tex.1978).⁹ In Parker, the court held that the reasonableness of the plaintiff’s conduct is to be determined by principles of contributory negligence, and the plaintiff’s knowledge of a danger is a matter bearing upon the plaintiff’s own negligence. See id. at 517, 521.

*5 Having failed to bring this complaint to the trial court’s attention, appellants have not preserved error. To preserve error in instructions to the jury, a party must make the trial court aware of the complaint timely and plainly and obtain a ruling. See State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992). Appellants did neither.

B. Right of Control

As part of their multifarious first point, appellants argue HL & P had a contractual right to control NHPL’s work and a legal duty to oversee that work. The existence of a duty is a question of law for the court to determine from the surrounding facts. See Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). It is unnecessary to submit a question concerning a pure question of law. See Lawson-Avila Const., Inc. v. Stoutamire, 791 S.W.2d 584, 592 (Tex.App.-San Antonio 1990, writ denied) (holding the trial court did not err in failing to submit a question on whether the general contractor retained the right to control the independent contractor’s performance of its work activity sufficient to give rise to a duty to exercise ordinary care for the safety of the independent contractor’s employees).

Where an independent contractor has control of the work and has the responsibility for doing it in a safe manner, and danger arises from the manner in which the independent contractor’s employees perform that work, the consequences of the dangerous performance belong to the independent contractor, not the premises owner. See Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976). A premises owner generally has no duty to see that an independent contractor performs work in a safe manner. See Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex.1987); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985).

Under some circumstances, however, the general contractor does have a duty to warn an independent contractor’s employees of any dangerous conditions arising out of the independent contractor’s work. See Shell Chem. Co., 493 S.W.2d at 747-48. In Redinger, the court defined the scope of that duty by adopting the following rule:

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.

Redinger, 689 S.W.2d at 418 (citing Restatement (Second) of Torts § 414 (1965)). It is well established that the contractual right of control, not its actual exercise, gives rise to the duty to see that an independent contractor performs work in a safe manner. See Pollard v. Missouri Pac. R.R. Co., 759 S.W.2d 670, 671 (Tex.1988). This duty requires a general contractor to exercise any retained supervisory control “with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.” Restatement (Second) of Torts § 414 cmt. a. For the general contractor or premises owner to be liable for negligence, its supervisory control must relate to the condition or activity that caused the injury. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993). As the Restatement explains, this rule is usually applicable when a principal contractor entrusts part of the work to subcontractors, but the contractor himself, or through a foreman, superintends the entire job. See Restatement (Second) of Torts § 414 cmt. b.

*6 In determining whether an owner has retained this right to control, the standard is narrow. See Coastal Marine Serv. of Tex., Inc. v. Lawrence, 42 Tex.S.Ct.J. 352, 354 (Feb. 4 1999) (per curiam). For the owner to be subject to liability for failure to exercise his control with reasonable care, he must have retained at least some degree of control over the manner in which the work is done.

It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to the methods of his work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

Restatement (Second) of Torts § 414 cmt. c.

Appellants complain the trial court abused its discretion in refusing their proposed instruction 5, which states:

You are instructed that Houston Lighting & Power Co., by reason of its contractual right of control through its contract with North Houston Pole Line Corp., had a duty to see that North Houston Pole Line Corp., an independent contractor, perform[ed] work in a safe manner.

We first observe that appellants’ proposed instruction incorrectly imposed a higher burden on HL & P because it did not inform the jury that HL & P had a duty of reasonable care. HL & P asserts that appellants’ instruction sought to make HL & P an insurer of the safety of NHPL’s work and would have amounted to an instructed verdict against it, or at least a comment on the evidence. See, e.g., Agricultural Warehouse, Inc. v. Uvalle, 759 S.W.2d 691, 694 (Tex.App.-Dallas 1988), writ denied per curiam, 779 S.W.2d 68 (Tex.1989) (holding that an instruction that imposed a greater burden to make certain the premises were safe constituted harmful error).

Furthermore, our review of applicable portions of the contract between HL & P and NHPL reveals that NHPL retained the right to control the operative details of its work. For example, the General Conditions portion of the contract expressly provides that NHPL (the “Contractor”) is an independent contractor who “shall be fully responsible for all acts and omissions of its Personnel and its Subcontractors….” In addition, the contract provides:

Contractor has the “sole responsibility” for all conditions affecting the performance of the work, including those affecting transportation, availability and quality of labor, physical conditions at the job site, equipment and facilities needed before and during the performance of the work;

Contractor is responsible for all loss or damage arising out of its performance of the work;

Contractor is responsible for providing equipment and facilities necessary to complete the work;

*7 Contractor is responsible for providing a “competent Contractor’s Superintendent” and for “adequate supervision at the jobsite at all times” to ensure performance of the work;

Contractor is “solely responsible for the safety and health of its Personnel, its Subcontractors’ Personnel, and other persons required” in performing the work;

Contractor is to “take all precautions for the safety and health of, and shall provide all protection necessary to prevent damage, injury or loss” to its personnel, and its subcontractors’ personnel, or the materials and equipment used in the work;

Contractor shall maintain a safety program on the jobsite, in order to maintain a safe workplace and to comply with OSHA safety regulations;

Contractor is responsible for providing and maintaining a safe working environment and Owner has the right to remove from the jobsite any Contractor employee who is involved in the use or sale or who is under the influence of drugs or alcohol;

Contractor is to notify Owner of OSHA violations and take “corrective action.”

Finally, HL & P points to evidence in the record that HL & P exercised no control over the details of NHPL’s work. For example, Scott Smith, HL & P’s contract coordinator, testified that NHPL had complete discretion to shut down the voltage on the day of the accident. He also testified HL & P exercised no control over the details of NHPL’s work. He explained that the Special Conditions for Overhead Distribution and Technical Construction, cited by appellants as examples of contractual control provisions, do not apply to the routine maintenance work in this case. Smith coordinated work between HL & P and Bell, and did not supervise NHPL. He only scheduled the many work orders over the term of the two-year contract, not the daily work. Smith testified HL & P relied on its independent contractors to plan and supervise the jobs. Thus, the evidence reveals that HL & P did not have or exercise control over NHPL to the extent required to impose a duty on HL & P to see that NHPL performed its work safely.

For all these reasons, we hold the trial court did not abuse its discretion in refusing to submit proposed instruction 5.

In conclusion, after finding no reversible error in the trial court’s charge and instructions to the jury on HL & P’s duty to Moore, we overrule point of error one.

C. Contributory Negligence

In their second point of error, appellants argue the trial court erred in overruling their motion for directed verdict, their objections to the charge, and denial of their proposed instructions on the issue of Moore’s contributory negligence. In addition to the denial of their directed verdict, appellants complain of the submission of Question 1 with instructions 4 and 5, and the refusal of their proposed instruction 7.¹⁰ They argue that Moore could not be contributorily negligent as a matter of law, and that the jury found him 100% negligent because of a defective jury charge.

*8 Appellants argue Moore had no duty to inspect for hidden dangers and he could rely on HL & P to conduct such an inspection and warn him of any hidden dangers. See Shell Chem. Co., 493 S.W.2d at 746. A premises owner’s duty to keep the premises in a safe condition may subject the premises owner to liability in two situations: (1) those arising from a premises defect; and (2) those arising from an activity or instrumentality. See Redinger, 689 S.W.2d at 418. When the dangerous condition existed on the premises when the invitee enters, the subcontractor’s employees are under no duty to inspect the premises for concealed dangers, but may expect the premises owner will discharge its duty to inspect the premises and warn of any dangerous condition which is not open and obvious. See Shell Chem. Co., 493 S.W.2d at 746. When the dangerous condition arises out of the work activity of the injured invitee, however, the premises owner owes no duty to warn the invitee. Id. at 747.

Here, the loose ground strap at the top of the pole existed before Moore began the job. Appellants argue that Moore had no duty to inspect for the loose strap and could rely on HL & P to inspect the premises and warn NHPL and Moore of any hidden danger. Therefore, according to appellants, Moore could not have been contributorily negligent. HL & P argues, however, that the dangerous condition arose out of the work being done by NHPL and Moore. See Shell Chem. Co., 493 S.W.2d at 746-47.

Appellants have cited no authority for submission of an additional instruction on HL & P’s duty such as their proposed instruction 7. As discussed, the court followed Keetch for the correct charge for a premises case where the plaintiff is an invitee. Instructions 4 and 5 submitted in this case are recommended by PJC 65.1B when the conduct of a contributorily negligent plaintiff is to be considered by the jury. Just as with Proposed Instruction 6, appellants’ Proposed Instruction 7 would have been unnecessary and confusing.

In addition, as discussed more fully below, there is much evidence in the record that the accident was caused by Moore’s failure to follow procedures while performing his job, and very little evidence that the accident was caused by the loose case ground strap. The jury could have found the danger arose from Moore’s work activity, rather than from a condition on the premises. The denial of the directed verdict was therefore proper, as was submission of Moore’s negligence. When there is conflicting evidence of probative value on a theory of recovery, an instructed verdict is improper and the issue must go to the jury. See White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983).

We overrule point of error two.

D. Gross Negligence

*9 In point of error three, appellants argue the trial court erred by overruling their objection to Question 6 and refusing their proposed question 16 on the gross negligence of NHPL.¹¹ The trial court submitted gross negligence as a combination of the statutory definition of gross negligence in effect at the time of the accident and the two-part “clarification” of that definition announced in the Texas Supreme Court’s landmark opinion in Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.1994).

Appellants argue, without explanation, that this is a Constitutional tort, not a common law tort. They did not make that argument below, however. Their only objection was that “this is a pre-1994 filing case.” Appellants may not raise a complaint for the first time on appeal. See Cannon v. Lemon, 843 S.W.2d 178, 183 (Tex.App.-Houston [14th Dist.] 1992, writ denied).

Moore was killed on January 23, 1993, and this suit was filed January 3, 1994. Appellants argue this case should have been submitted under the former statutory gross negligence definition of “more than momentary thoughtlessness, inadvertence, or error in judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.” See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, 1987 Tex.Gen.Laws 37, 44 (former Tex.Civ.Prac. & Rem.Code Ann. § 41.001(5)). The amended statute, which incorporates the standard in Moriel, expressly applies to cases that accrue on or after September 1, 1995. See Tex.Civ.Prac. & Rem.Code Ann. § 41.001(7).¹²

In Moriel, the Texas Supreme Court analyzed gross negligence law and restated its analysis from Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993), defining gross negligence as including two elements:

(1) viewed objectively from the standpoint of the actor, the act or omission 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.

Moriel, 879 S.W.2d at 23. The court explained that these two elements have always been the basic components of gross negligence. Id. at 19-21. The court wrote that its “opinion represents a substantial clarification of the gross negligence standard that will apply in all cases.” Id. at 13 (emphasis added).

It is proper to evaluate gross negligence under the Moriel definition even though the cause of action accrued before the date of the opinion. See, e.g., Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998) (applying Moriel where a worker was injured by benzene exposure in 1963-77); Universal Servs. Co. v. Ung, 904 S.W.2d 638 (Tex.1995) (applying the Moriel standard where the injury occurred in 1985); Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 741 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (applying Moriel to injuries from a gas explosion in 1992). It is clear the trial court did not apply the new statute because it submitted an instruction that the jury evaluate the preponderance of the evidence and did not call for proof by clear and convincing evidence, as is now required. See Tex.Civ.Prac. & Rem.Code Ann. § 41.003.

*10 Moreover, the evidence adduced at trial was based on this two prong standard. For example, appellants’ expert, W.R. Purcell, testified the NHPL had actual knowledge of the extreme risk and acted with conscious indifference to that risk. In addition, appellants pleaded the Moriel elements.

Because the Moriel definition submitted in this case is not “new,” but merely a clarification of existing law, we conclude the trial court did not abuse its discretion in submitting an instruction to the jury incorporating that definition. Accordingly, we overrule point of error three.

E. Negligence Per Se

In their fourth point of error, appellants argue the trial court erred in refusing their proposed instructions 10, 11 and 12 on NHPL’s negligence per se by violating Occupational Safety and Health Administration (OSHA) regulations.¹³

Appellants argued at trial that NHPL was the employer under OSHA and NHPL had exclusive responsibility for maintaining a safe workplace and for ensuring Moore performed his job safely under OSHA regulations. Appellants did not plead HL & P was the “prime contractor” under OSHA. The testimony adduced at trial was that NHPL had the responsibility for the safety of its workers.

Instead, appellants’ theory is that the trial court erred in refusing its proposed instructions 10, 11 and 12 because HL & P was liable for NHPL’s negligence under OSHA. They argue that NHPL was negligent per se and HL & P was responsible for this negligence through its right to control NHPL’s work. As already shown, HL & P had no right to control the details of the work, and it did not exercise such control. Therefore, HL & P is not responsible for any negligence per se by NHPL. Moreover, OSHA does not create duties between employers and independent contractors. See Barrera v. E.I. DuPont de Nemours & Co., 653 F.2d 915, 920 (5th Cir.1981); see also M-T Petroleum, Inc. v. Burris, 926 S.W.2d 814, 818 (Tex.App.-El Paso 1996, no writ) (rejecting expansion of premises owner’s duty to the independent contractor, finding OSHA standards did not create a duty whose breach was negligence per se ).

In addition, there is no evidence NHPL or HL & P violated OSHA standards. NHPL received a citation for failure to inspect the transformer before the job, but that citation was later withdrawn. Accordingly, we conclude that the trial court did not abuse its discretion in failing to submit appellants’ proposed instructions on negligence per se. We overrule point of error four.

III. Sufficiency of the Evidence

Points of error challenging the legal sufficiency of the evidence must be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence established conclusively the opposite of a vital fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

*11 In reviewing no evidence points of error, we must consider all the evidence in the record in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party’s favor. See Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). In evaluating legal sufficiency, we are required to determine whether the proffered evidence as a whole rises to the level that would enable reasonable and fair-minded people to differ in their conclusions. Id. at 286. If there is any evidence of probative force to support the jury’s finding, the no evidence point must be overruled and the finding upheld. See ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997).

If the findings are supported by legally sufficient evidence, we must then review the factual sufficiency of the evidence by weighing and considering the evidence both in support of, and contrary to, the challenged findings. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We must uphold the jury’s findings unless they are so against the great weight and preponderance of the evidence as to be manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.-Houston [1st Dist.] 1984, writ ref’d n.r.e.). This Court may not substitute its opinion for that of the trier of fact merely because it might have reached a different conclusion. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). The Supreme Court has admonished the courts of appeals to be mindful that the preponderance of the evidence did not convince the jury, and reversal is warranted only where the great weight of the evidence supports an affirmative answer. Id.

A. Contributory Negligence

In points of error five and six, appellants contend the evidence is legally and factually insufficient to support the jury’s finding that Moore was 100% contributorily negligent. When, as here, both legal and factual sufficiency points are raised, we must first review the legal sufficiency to determine if there is any evidence of probative value to support the jury’s findings. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

HL & P’s electrical engineering expert, Dr. E.D. Patton, opined that HL & P did not cause Moore’s death. Instead, he found Moore caused his own death, and that Moore had violated the cardinal rule in electrical work by assuming that all grounds were properly connected. Patton asserted that linemen should never assume any ground is in place and it is good practice in the industry to use a mechanical jumper and rubber gloves, even if all the grounds appear to have good connections. He also testified he had never heard of anyone being injured by a missing case ground strap.

*12 HL & P cites to the testimony of other witnesses that Moore was killed by his failure to use a mechanical jumper or wear rubber gloves. For example, Robert Thompson, a journeyman lineman investigator for the union, testified that after his investigation, he concluded Moore did not follow proper procedures when he cut the ground wire, and he testified the most common procedure was to use a jumper. He testified the union determined NHPL had laid the job out properly. Thompson testified Moore was qualified to do the job and it was appropriate for him to be in the bucket by himself. There was no criticism of the supervision over him. He testified the union was aware when it made its investigation the case ground strap was not attached at the time of the accident, yet he did not find any part of the accident was caused by HL & P.

Gary Cutler, Moore’s former supervisor, testified based on his knowledge of Moore’s training and work experience that he never would have expected Moore not to wear rubber gloves or use a mechanical jumper. He stated Moore “just made a mistake.”

Appellants’ safety expert, William Purcell, and their electrical engineering expert, Austin Bollen, admitted they had never seen a situation where a worker was injured by an inadequately attached case ground strap. Although Purcell testified Moore exercised ordinary care based on his level of experience, he stated Moore should have used the mechanical jumper, and he knew of no fifth level apprentice who would cut a ground without putting a jumper in place first. He also admitted that if Moore had been wearing gloves, he likely would not have been electrocuted and the mechanical jumper may have prevented the accident. Clearly, there is some evidence to support the jury’s finding of contributory negligence, and appellants’ legal sufficiency challenge must fail. We now turn to the evidence contrary to the jury’s verdict.

The only evidence cited to support appellants’ contention that Moore’s death was caused by the loose ground strap was from HL & P’s expert, Dr. Patton, who testified that if the strap had been properly attached, Moore would not have been electrocuted, even though he was not wearing rubber gloves and did not use the mechanical jumper. Austin Bollen, appellants’ expert, testified HL & P was negligent in failing to ensure the case ground strap was attached properly and in failing to inspect the strap since the transformer’s installation in 1975. He concluded Moore would not have been electrocuted if either the case ground strap on the pole ground wire had been attached.

We conclude the jury’s verdict is not so against the great weight of the evidence as to be manifestly unjust. Accordingly, we overrule points five and six.

B. Gross Negligence

In point of error seven, appellants assert that the jury’s negative answer to Question 6 on NHPL’s gross negligence and its resulting failure to find damages were against the great weight of the evidence.

*13 NHPL responds that Moore was fully qualified to perform the assigned job, he knew the appropriate safety precautions and had proven himself to be a safe worker. NHPL asserts that consequently, there was no reason for it to believe Moore would perform his work in an unsafe manner. Evidence supporting the jury’s failure to find gross negligence reveals the following: According to his supervisors, Moore was a safe and conscientious worker, with the knowledge and experience to complete the assigned job safely. Moore’s former supervisor, Gary Cutler, testified Moore had “routinely” performed this type of task numerous times in the past, and he knew the proper safety procedures for cutting a ground wire. He referred to Moore as “the best hand I ever had.” Cutler testified he had no concerns about letting Moore work on energized secondaries by himself while a fourth period apprentice. He never saw Moore fail to use a mechanical jumper or wear gloves if cutting wire while raising secondaries.

There was also testimony from Greg Lucero, a union officer and instructor for the joint apprenticeship program, that raising secondary lines could be performed safely with the lines energized, and that it is common understanding that workers should not rely on a pole ground. Moore’s union investigated the accident and found it was caused when he cut the only remaining ground wire, and Moore failed to utilize proper procedures by cutting the wire without bypassing it with a mechanical jumper. The union took no action against NHPL.

Brian Travis and Earl Austin testified that the missing pole bond wire posed no particular safety problems because the procedures for raising secondaries were the same whether the pole bond wire was there or not. Austin testified a missing ground is not a dangerous condition for a qualified, trained lineman such as Moore. Austin testified the missing grounds did not contribute to Moore’s death. While the grounding system at the transformer may have diverted the electricity to the system neutral, linemen at NHPL were taught never to rely on that system to protect them when working because the strap connections were not always tight enough to ensure an effective electrical path and because the system neutral was the “best” ground for the electrical system. Moore should have had his rubber gloves on and used a mechanical jumper as he had been taught since beginning his third period apprenticeship. Austin testified both Gordy and Travis performed in accordance with NHPL policy. Austin also testified about NHPL’s various safety procedures and programs. Travis saw Moore take the necessary equipment for the job, including the mechanical jumper and rubber gloves, in the bucket with him. Travis had also seen Moore perform this type of work “many times before.”

As for evidence contrary to the jury’s verdict, appellants cite to testimony that NHPL had actual knowledge of the missing pole ground. Appellants’ expert, Austin Bollen, concluded that NHPL was grossly negligent.¹⁴ William Purcell, appellants’ safety expert, testified the missing pole ground should have sent a “huge red flag” to NHPL, and that NHPL was grossly negligent. Elton Sackett, NHPL’s general foreman, agreed that if he saw a pole ground missing, he would check to be sure the case strap ground was connected. He stated that if he saw both grounds were missing, he would de-energize the pole before commencing work. Appellants also assert that NHPL knew the missing pole ground was a dangerous condition and that, in all likelihood, Moore would have to cut the last ground. Our review of the record does not support these assertions, however. Brian Travis testified it appeared that the case strap was connected, when it actually was not. Therefore, NHPL would not have known Moore would have to cut the last ground.

*14 We conclude the verdict is not against the great weight of the evidence so as to be manifestly unjust. There is sufficient evidence in the record to support the jury’s failure to find NHPL had actual awareness of an extreme degree of risk, and it acted in conscious disregard of that risk. Because the evidence does not support a finding on liability for gross negligence, the jury correctly did not answer the damages question. We overrule point of error seven.

IV. Admission/Exclusion of Evidence

A complaint based on the improper admission of evidence is reviewed under an abuse of discretion standard. See Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex.1983). To obtain reversal of a judgment based on an error in the admission or exclusion of evidence, appellant must show that the error probably caused the rendition of an improper judgment. See Mancorp. Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex.1990); Tex.R.App.P. 44.1(a).

A. Subsequent Accident

In point of error eight, appellants assert the trial court erred in excluding evidence relating to the deaths of two other NHPL employees who were electrocuted while working from a bucket around high voltage lines, without wearing rubber gloves. These deaths occurred thirteen months after Moore’s death. The trial court excluded the evidence because the circumstances were not substantially similar.

The general rule in Texas is that evidence of other acts by a party with persons not a party to the lawsuit are irrelevant, immaterial, unfairly prejudicial, and thus, inadmissible. See, e.g., Johnson v. City of Houston, 928 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1996, no writ). In some instances, evidence of earlier accidents which occurred under reasonably similar, but not necessarily identical, circumstances is admissible. See Missouri-Kansas-Texas R.R. Co. v. May, 600 S.W.2d 755, 756 (Tex.1980). This evidence is not admissible, however, without the establishment of the predicate of reasonable similarity. See Missouri Pac. RR. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978).

First, appellants have not preserved error on this point. The record cites in appellant’s brief are inapplicable.¹⁵ The exhibit tendered as evidence of the subsequent affidavits, an OSHA report, was not admitted, and appellants made no bill or offer of proof to make the excluded evidence part of our record. See Tex.R.App.P. 33.

Secondly, these accidents are not substantially similar. Moore was killed when he severed the last remaining ground on a secondary wire without “jumpering” around the cut. In the subsequent accident, the two employees accidentally brushed against live, uninsulated high-voltage primary power lines. The accident did not involve cutting a neutral wire. The missing grounds in this case would have had no effect on the later accident because the grounding system affects the system neutral, not the primary wires.

*15 In addition, subsequent accidents are not relevant to knowledge or intent for establishing gross negligence. Gross negligence, by definition, concerns the actor’s mental state at the time of the action to determine whether he was consciously indifferent of the risk. “Determining whether an act or omission involves an extreme degree of risk or peril requires an examination of the events from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.” Moriel, 879 S.W.2d at 23 (emphasis added). On the other hand, prior accidents might alert a defendant to a dangerous condition. See, e.g., Rush v. Bucyrus-Erie Co., 646 S.W.2d 298, 300 (Tex.App.-Tyler 1983, writ ref’d n.r.e.) (holding the trial court should have admitted evidence of prior accidents that may have alerted the defendant to dangerous design flaws).

We hold the trial court did not abuse its discretion in excluding this evidence concerning a subsequent accident and overrule point of error eight.

B. Late Designated Witness

In point of error nine, appellants argue the trial court erred in admitting the testimony of Tina Winningham because HL & P did not show good cause for failing to designate her properly as a fact witness. Winningham had lived with Moore before his death. Although the discovery responses are not part of our record, apparently both appellants and HL & P identified Winningham as a person with knowledge of relevant facts, stating her address and phone number were unknown.

Parties have an affirmative duty to supplement discovery answers if an answer “is no longer true and complete and the circumstances are such that failure to amend the answer is in substance misleading.” Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989). The sanction for failure to comply with this requirement is exclusion of the evidence affected by the violation. See Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex.1986). An exception to the automatic exclusion rule exists, however, when the party proffering the evidence establishes good cause for allowing the evidence. See Boothe, 766 S.W.2d at 789.

Appellants were aware HL & P wanted Winningham to testify about her attempts to obtain compensation benefits as Moore’s common law wife. HL & P contends appellants knew how to contact Winningham, and they did contact her about obtaining discovery documents, but they never supplemented their discovery answers. HL & P located Winningham’s mother and eventually persuaded her to have her daughter talk to its counsel two days before her testimony. HL & P immediately supplemented its responses.

The trial court found good cause for permitting Winningham to testify. Determination of good cause is within the trial court’s discretion. See Aluminum Co. of America v. Bullock, 870 S.W.2d 2, 3 (Tex.1994). We find no abuse of discretion. See Glenn v. Abrams/Williams Bros., 836 S.W.2d 779, 782 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (finding no abuse of discretion when the trial court permitted a known witness who had been employed by the defendant to testify for plaintiff when plaintiff’s counsel had been unable to locate the witness until trial). Furthermore, any error in the admission of Winningham’s testimony would have been harmless because Winningham testified about Moore’s relationship with his family to rebut evidence of damages. The jury, finding no liability, did not reach damages, and we have determined the jury’s verdict is supported by the evidence.

*16 We overrule point of error nine.

In conclusion, we affirm the judgment of the trial court.

	Footnotes
1		A “joint use” utility pole is one used by both HL & P and Southwestern Bell Telephone Company (Bell). The secondary lines were being raised to provide a two to four foot clearance for Bell’s communication cable lines to be strung beneath the secondary lines. “Secondaries” are the insulated lines on the lower portion of the pole carrying the lower voltage power directly to most homes and businesses. “Primaries” are uninsulated high-voltage lines at the top of the pole carrying 7200 V electricity from electrical substations to transformers, which convert the “primary” voltage to “secondary” voltage.
2		NHPL apprentices are trained through the Joint Apprenticeship Training Committee (JATC), co-sponsored by the National Electrical Contractors Association (NECA) and the International Brotherhood of Electrical Workers (IBEW). The JATC apprenticeship training program is comprised of seven steps over approximately three years. Apprentices receive both on-the-job training and classroom instruction. A “hot apprentice,” the fourth level and higher, is authorized to work on energized secondary lines by himself.
3		HL & P’s utility poles normally have three grounding systems: (1) the pole ground, a copper-insulated ground wire that runs from the top of the pole to sixteen feet into the ground; (2) the transformer case ground strap, which is attached to the transformer case and to the system neutral; and (3) the system neutral, an uninsulated silver wire that runs with the primaries all the way to HL & P’s distribution facility.
4		Employees are barred from claiming negligence against employers who subscribe to workers’ compensation insurance. See Tex.Lab.Code Ann. § 408.001 (Vernon 1996).
5		An invitee enters onto another’s land with the owner’s knowledge and for the mutual benefit of both parties. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975).
6		The court recommended a general question such as Pattern Jury Charge 66.04, which provides: PJC 66.04 Premises Liability-Plaintiff Is Invitee Did the negligence, if any, of those named below proximately cause the [occurrence] [injury] [occurrence or injury] in question? Answer “Yes” or “No” for each of the following: Don Davis ____ Paul Payne ____ 3 State Bar of Texas, Texas Pattern Jury Charges PJC 66.04 (1990). (The premises liability charge where the plaintiff is an invitee is now found in Texas Pattern Jury Charges-Malpractice, Premises & Products, PJC 66.3 (1998)).
7		QUESTION NO. 1 Did the negligence, if any, of the person or entity named below proximately cause the occurrence in question? Answer “Yes” or “No” for each of the following: a. Houston Lighting & Power Co. No b. Stacy Lee Moore Yes INSTRUCTION NO. 2 You are instructed that “NEGLIGENCE,” when used with respect to the conduct of Houston Lighting & Power Co., as an owner or occupier of a premises, means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that the owner or occupier knows about or in the exercise of ordinary care should know about. INSTRUCTION NO. 3 You are instructed that “ORDINARY CARE,” when used with respect to the conduct of Houston Lighting & Power Co., as an owner or occupier of a premises, means that degree of care that would be used by an owner or occupier of ordinary prudence under the same or similar circumstances.
8		Appellants also assert the trial court failed to comply with Rules 285 and 286 in its communication with the jurors in response to their question on HL & P’s duty. See Tex.R.Civ.P. 285 (the jurors may communicate with the court in open court); Tex.R.Civ.P. 286 (the jury may receive further instructions from the court in writing). Appellants made no objection on the record; therefore, error was not preserved. See Tex.R.App.P. 33.1.
9		The court in Parker described the “no duty” doctrine as follows: [T]he occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them “no duty” to warn or to protect the invitees. This is so, the cases say, because there is “no duty” to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof. 565 S.W.2d at 516 (citations omitted). The abolition of the “no duty” doctrine announced in Parker was to clarify that plaintiffs did not have the additional burden to negate their own knowledge of the existence of a premises defect. The “no duty” rule was said “to defeat a plaintiff’s cause of action because a plaintiff’s knowledge and appreciation of danger cut off his action before reaching the issue about a defendant’s negligence.” Id. at 517.
10		Instruction No. 4 states: You are instructed that “NEGLIGENCE,” when used with respect to the conduct of Stacy Lee Moore, means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. Instruction No. 5 states: You are instructed that “ORDINARY CARE,” when used with respect to the conduct of Stacy Lee Moore, means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. Appellants’ Proposed Instruction 7 states: You are instructed that Stacy Lee Moore had no duty to inspect the premises for hidden dangers that existed before he came on the premises, but rather that he could rely on Houston Lighting & Power Co. to conduct such an inspection and to warn of any hidden dangers.
11		Question No. 6, was submitted as follows: Was North Houston Pole Line Corp.’s gross negligence, if any, a proximate cause of the occurrence in question? “GROSS NEGLIGENCE” means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected. You may find North Houston Pole Line Corp. grossly negligent if and only if: (1) viewed objectively from the standpoint of North Houston Pole Line Corp., the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) North Houston Pole Line Corp. had actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious disregard to the rights, safety, or welfare of Stacy Lee Moore. Answer “Yes” or “No.” Answer: No Appellant’s proposed question No. 16 states: Was North Houston Pole Line Corp.’s gross negligence, if any, a proximate cause of the occurrence in question? “GROSS NEGLIGENCE” means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.
12		The new legislation eliminates gross negligence as a basis for punitive damages, requiring all such claims to be based on fraud, malice or, in wrongful death cases, gross neglect. See Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 n. 2 (Tex.1995).
13		Proposed Instruction 10 states: You are instructed that “negligence per se,” when used with respect to the conduct of North Houston Pole Line Corp., means a failure to determine existing conditions before starting work, by an inspection or test. You are instructed that “existing conditions” shall include, but not be limited to, energized lines and equipment, conditions of poles, and the location of circuits and equipment, including power and communications lines, CATV and fire alarm circuits. Proposed Instruction 11 states: You are instructed that “negligence per se,” when used with respect to the conduct of North Houston Pole Line Corp., means a failure to determine existing conditions related to the safety of the work to be performed before work on or near electric lines or equipment is started. You are instructed that “existing conditions” shall include, but not be limited to, the presence of hazardous induced voltages and the presence and condition of protective grounds and equipment grounding conductors. Proposed Instruction 12 states: You are instructed that “negligence per se,” when used with respect to the conduct of North Houston Pole Line Corp., means a failure to ensure that the employee in charge conducts a job briefing with the employees involved before they start each job. You are instructed that a “job briefing” is required to cover at least the following subjects: a. hazards associated with the job, b. work procedures involved, c. special precautions, d. energy source controls, and You are further instructed that a more extensive ‘job briefing” is required to be conducted: a. if the work is complicated or particularly hazardous, or b. if the employee cannot be expected to recognize and avoid the hazards involving the job.
14		Most of Bollen’s testimony, however, concerned ordinary negligence, which is not a permissible cause of action against Moore’s employer. Bollen opined that NHPL was negligent in its inadequate site inspection before beginning the job, its failure to properly outline the job to the workers, its failure to have a journeyman work directly with Moore, and its failure to repair the pole ground before beginning the job.
15		The discussion of this testimony may have been off the record because there is reference to an earlier, but apparently unreported, hearing.