Court of Appeals of Texas, Houston (1st Dist.).

Shane ERWIN and Angela Erwin, Appellants,

v.

KERN RIVER GAS TRANSMISSION COMPANY, Kern River Corporation, and Williams Western Pipeline Company, Appellees.

No. 01-96-00204-CV.

|

Dec. 18, 1997.

OPINION

SCHNEIDER.

*1 This lawsuit arises from an injury that occurred during the construction of the Kern River Pipeline (the pipeline). The trial court granted appellees’s motion for directed verdict after appellants (together, the Erwins) rested. We affirm.

Standard of Review

A motion for directed verdict is proper when (1) a defect in the opponent’s pleading makes it insufficient to support a judgment, (2) the evidence conclusively proves facts establishing the movant’s right to judgment, or negates the nonmovant’s right to judgment, as a matter of law, or (3) the evidence is legally insufficient to raise a fact issue on a proposition necessary to entitle the nonmovant to judgment. Neller v. Kirschke, 922 S.W.2d 182, 187 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

We must determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Szezepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994); Jordan v. Jordan, 938 S.W.2d 177, 178 (Tex.App.-Houston [1st Dist.] 1997, no writ). We consider all the evidence in the light most favorable to the party against whom the verdict was instructed and disregard all contrary evidence and inferences, giving the losing party the benefit of all inferences raised by the evidence. Szczepanik, 883 S.W.2d at 649; Jordan, 938 S.W.2d at 179. If there is any conflicting evidence of probative value on any theory of recovery, the instructed verdict was improper, and we must reverse and remand for a jury determination of that issue. Szczepanik, 883 S.W.2d at 649; Jordan, 938 S.W.2d at 179. We must affirm a directed verdict, even if the trial court’s rationale for granting it was erroneous, if it can be supported on another basis. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 90 (Tex.App.-Corpus Christi 1992, writ dism’d w.o.j.).

Background

The construction project to build the pipeline (the project) was a joint venture of the Williams Companies and Tenneco, and was carried out under the auspices of Kern River Gas Transmission Company. Kern River Gas Transmission Company is a general partnership, in which Kern River Corporation and Williams Western Pipeline Company are partners.¹ The pipeline was to extend 900 miles, from Wyoming to California.

Kern River contracted with Associated Pipeline Contractors, Inc. (APC) to assist in part of the pipeline’s construction. Shane Erwin was APC’s employee; Angela Erwin is his wife. The entire project was divided into eight sections, called “spreads.” APC worked on spread two, which contained Utah’s Wasatch mountains (the Wasatch area). Shane Erwin was injured in these mountains.

Kern River wanted to have gas flowing through the entire pipeline in a year, originally setting the completion date for the Wasatch area at early October 1991. Kern River wanted to finish before winter set in, which would preclude further work in the Wasatch area until late spring of 1992. However, the Wasatch area work was delayed for various reasons. Therefore, the work schedule was accelerated to meet the completion deadline.

*2 On the day of the accident, Pete Logan, APC’s bending crew foreman, was pulling a truck, loaded with pipe, up a steep grade in the Wasatch area with a sideboom crane. A sideboom crane is not normally used for this. As Logan was driving the sideboom crane down the hill, one of its pivot pins fell out. This caused the crane’s boom to cock sideways. Logan and Shane Erwin noticed the fallen pin.

This was a dangerous situation, because the crane’s boom could break and fall. Therefore, Logan stopped the crane, at which point he and the workers around him (including Shane Erwin) were temporarily safe. There was not enough room to fix the crane’s pin, so Logan began backing the crane down the hill. Logan was responsible for clearing the area before doing this. Shane Erwin positioned himself in what he thought was a safe place, on the opposite side of the boom. However, the boom broke free, swung around the other side of the crane, and pinned Shane Erwin’s right leg to the ground. His leg had to be amputated below the knee. No one from Kern River was present when the accident occurred.

Shane Erwin sued Kern River for negligence in causing his injuries. Angela Erwin sued Kern River for loss of consortium and her husband’s services.

Directed Verdict

In point of error one, the Erwins claim the trial court erred in granting Kern River’s motion for directed verdict because, under Utah law, they had proved a prima facie case of liability against Kern River under three theories.² These theories were that Kern River (1) negligently exercised control over the project, (2) breached a nondelegable duty of care to Shane Erwin, and (3) assumed a duty of care to him.

A. Angela Erwin’s Consortium Claims

In a footnote to its brief, Kern River argues Angela Erwin is not a proper party to this appeal, because Utah does not recognize her loss-of-consortium claims. In an oral motion for directed verdict, Kern River argued Angela Erwin could not maintain a consortium claim under Utah law.³ Because the trial court’s final judgment directed a verdict against Angela Erwin, she may appeal it.

We conclude a directed verdict was properly granted on Angela Erwin’s claims. Utah law does not allow the spouse of a person injured by a third party to recover for loss of consortium.⁴ See Utah Code Ann. § 30-2-4 (1995); Cruz v. Wright, 765 P.2d 869, 869, 871 (Utah 1988); Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1287-88; Ellis v. Hathaway, 27 Utah 2d 143, 493 P.2d 985, 986 (Utah 1972); Wollam v. Kennecott Corp., 648 F.Supp. 160, 163 (D.Utah 1986) (applying Utah law). While the Utah Legislature this year passed a statute allowing spousal consortium claims, the statute applies only to spouses of persons injured by a third party after May 4, 1997. See  Utah Code Ann. § 30-2-11 (Supp.1997). We hold, therefore, that the trial court properly directed a verdict against Angela Erwin’s spousal consortium and service claims.

B. Kern River’s Liability

*3 As a general rule under Utah law, a principal employer is not liable for injuries caused by its contractor’s negligence, unless the principal actively participates in the work’s performance. See Dayton v. Free, 46 Utah 277, 148 P. 408, 411, 412 (Utah 1914); Sewell v. Phillips Petroleum Co., 606 F.2d 274, 275-76 (10th Cir.1979) (applying Utah law); Texaco, Inc. v. Pruitt, 396 F.2d 237, 240 (10th Cir.1968) (applying Utah law); Simon v. Deery Oil, 699 F.Supp. 257, 258 (D.Utah 1988) (applying Utah law). Utah law recognizes three exceptions to this rule: (1) the injury is the direct result of the stipulated work; (2) the work to be performed is inherently dangerous, and the injury is the consequence of the contractor’s failure to take appropriate precautions; or (3) the injury was caused by the non-performance of an absolute (nondelegable) duty the principal employer owed the injured party, individually or to the class of persons to which he belongs. Gleason v. Salt Lake City, 94 Utah 1, 74 P.2d 1225, 1232 (Utah 1937); Dayton, 148 P. at 411.

1. Active Participation in Contractor’s Work

The Erwins first argue Kern River actively participated in the project. To make this determination, we examine whether Kern River reserved the right to direct, control, or superintend APC’s work. Dayton, 148 P. at 411; accord, see Callahan v. Salt Lake City, 41 Utah 300, 125 P. 863, 865 (Utah 1912); cf. Rustler Lodge v. Industrial Comm’n, 562 P.2d 227, 228 (Utah 1977) (under workers’s compensation statute); Dowsett v. Dowsett, 116 Utah 12, 207 P.2d 809, 811 (Utah 1949) (distinguishing independent contractor from servant). We also examine whether Kern River in fact directed or controlled the time and manner of doing APC’s work, or the means and methods by which the results were to be accomplished. Dayton, 148 P. at 411; see Gleason, 74 P.2d at 1234; cf. Kippen v. Jewkes, 258 F.2d 869, 873 (10th Cir.1958) (applying Utah law and quoting Dowsett ). The injury must be caused by the act of performance, not merely the manner of performance over which Kern River exercised neither direction, control, nor supervision. See Dayton, 148 P. at 412; accord Simon, 699 F.Supp. at 259.

The Contract’s Terms

The Erwins initially argue the contract reserved to Kern River the right to participate actively in the project. We disagree.

First, the Erwins point to the contractual clause giving Kern River the right to retain ten percent of any amounts invoiced by APC until the project’s completion. The Erwins argue this clause provided Kern River economic leverage over APC. In Dayton, however, the Utah Supreme Court held an almost identical provision did not justify a finding that the principal company reserved the right to direct, control, or superintend the contractor’s work. Dayton, 148 P. at 410, 411.

*4 Second, the Erwins point to paragraph 11.4, which requires APC to fire any of its workers whom Kern River, in its sole discretion, deems to be unsafe, unqualified, or the like. The Dayton court found a similar clause, when considered in the context of the entire contract, not to be a reservation of the right to direct, control, or superintend the independent contractor’s work. Dayton, 148 P. at 410, 411. Similarly, the Callahan court found an almost identical clause not to reserve such rights. Callahan, 125 P. at 863, 865.

Third, the Erwins focus on paragraph 19.5, which allows Kern River’s inspectors to stop APC’s work if, among other things, it is not being performed strictly according to the contract’s terms; APC’s work is risking, threatening, or damaging any property; or the work is not being done safely. Such a provision has been found insufficient to make the principal liable. See United States v. Page, 350 F.2d 28, 30, 31 (10th Cir.1965) (under Federal Tort Claims Act (FTCA)); Thompson v. Timpanogos Metals, 762 F.Supp. 927, 929 (D.Utah 1991) (FTCA). The Dayton court found a clause requiring the contractor to remedy any imperfect or insufficient work, when pointed out by the principal employer’s engineers, did not reserve the right to direct, control, or superintend the contractor’s work. Dayton, 148 P. at 411; see Eutsler v. United States, 376 F.2d 634, 635 (10th Cir.1967) (holding right to prescribe and impose safety regulations created no liability under FTCA); Page, 350 F.2d at 31 (same); Thompson, 762 F.Supp. at 929 (holding no liability even though principal had right to inspect, and inspectors visited site weekly and directed contractor to comply with safety requirements); cf. Intermountain Speedways, Inc. v. Industrial Comm’n, 101 Utah 573, 126 P.2d 22, 24 (Utah 1942); Angel v. Industrial Comm’n, 64 Utah 105, 228 P. 509, 512 (Utah 1924) (finding no “control” under workers’s compensation law when supervision was to ensure work was being performed in workmanlike manner). If, as in Dayton, no such right is reserved when the contract allows the principal to dictate repairs, then no such right is reserved when the principal, as here, has the authority to stop work upon detection of safety or other problems.

Finally, the Erwins argue a clause allowing Kern River to terminate the contract at will granted Kern River ultimate control over the project. The Dayton court rejected the argument that a clause allowing the principal employer to terminate the contract, if the contractor failed or refused to do the amount of work agreed upon, reserved the right to direct, control, or superintend the contractor’s work. Dayton, 148 P. at 410, 411; cf. Parkinson v. Industrial Comm’n, 110 Utah 309, 172 P.2d 136, 140 (Utah 1946) (finding unilateral right to discharge not controlling factor under workers’s compensation law); Gogoff v. Industrial Comm’n, 77 Utah 355, 296 P. 229, 231 (Utah 1931) (finding independent contractor relationship under workers’s compensation law when either party could terminate with three-days’s notice). In light of Dayton, we hold this termination clause does not reserve to Kern River those active participation rights.

*5 We also note that paragraph 24.1 of the contract specifically stated APC was an independent contractor, and that it alone was to select the means, manner of performance, and methods for its work. See Gogoff, 296 P. at 230. The contract also left to APC the job of procuring and servicing materials, equipment, and labor. See Callahan, 125 P. at 863. Considering the contract as a whole, we find the contract did not reserve to Kern River the right to direct, control, or superintend APC’s work.

Actual Control

Alternatively, the Erwins argue Kern River actually participated in the project, regardless of the contract’s terms. The Erwins’s theory is three-fold: (1) Kern River exercised economic pressure over APC, causing APC to rush work and compromise safety; (2) Kern River’s acceleration of the work schedule set the stage for APC’s unsafe work practices, which led to the accident; and (3) Kern River directly exercised control by directing the construction of the Wasatch area right-of-way, the negligent design of which the Erwins say was a cause of the accident. We set out the applicable evidence, viewed in the light most favorable to the Erwins, below.

The contract required Kern River to provide APC with a right-of-way and access to it. For various reasons, Kern River could not provide all the right-of-way and access in spread two Kern River had originally promised. Kern River and APC discussed these rights-of-way and access problems. At some point, Kern River asked APC to identify areas in spread two where additional rights-of-way were needed. APC did not always ask for additional space, and it apparently did not ask for additional space at what was later the accident site.

The Erwins rely on the testimony of Earl Harrison, APC’s foreman over the project’s right-of-way. Harrison and Shane Erwin testified the right-of-way bordering the accident site was too narrow and insufficiently leveled. Harrison testified Kern River’s inspector and construction supervisors would not let him build the right-of-way in the manner he wanted, and that he had to build it on Kern River’s accelerated time schedule.⁵ He said Kern River’s construction superintendent told him the right-of-way should be built just to look like a right-of-way from a forest ranger’s helicopter. Harrison also stated the same individual agreed the working conditions were dangerous, that a right-of-way was not being built, and that someone would probably get killed on the job. Other than with respect to this right-of-way, there is no evidence Kern River ever directed the specifics of APC’s day-to-day activities on the project.

Because the right-of-way was too steep and its dirt was too loose, even a 4-wheel drive truck could not drive on it. Trucks could not, therefore, climb the hill to reach equipment needing service. The record discloses that, on construction jobs like this, equipment breakdowns are foreseeable, and it is important to have trucks available to reach the equipment for repairs.

*6 When a sideboom crane’s pin comes out, the proper procedure is to lay the boom down, bring up another crane, and repair the pin.⁶ However, this procedure could not be followed, because two cranes could not drive at the same time on the right-of-way. The Erwins’s safety expert said having sufficient work space in the Wasatch area was critical to safety, and the right-of-way was not wide enough for safety purposes. Therefore, the expert concluded Kern River’s involvement in the right-of-way’s construction affected the work’s safety. APC’s former vice president admitted the right-of-way’s terrain bore on safety.

Kern River either requested or ordered APC to accelerate the Wasatch work schedule, and APC agreed. To meet the accelerated schedule, APC concentrated its workers and equipment in the Wasatch mountain area. Kern River knew of and condoned APC’s mobilization efforts. APC decided to concentrate its resources at the location, at least in part, because it wanted to work for Kern River again. Kern River also paid APC about $32 million extra for this change in schedule and work. APC faced possibly great financial loss if it did not complete the project in the time required. For example, Kern River could have fired APC, which could have put APC out of business. APC also wanted to get along with Kern River to get repeat business.

The Erwins’s safety expert testified this mobilization to the Wasatch area was in total disregard for safety. The expert also testified time pressures such as those experienced on spread two affect safety. The expert further stated the accelerated schedule deprived the Wasatch area crews of proper equipment. For example, dozers would have been available to do what Logan had been trying to do (incorrectly) with a sideboom crane had the work schedule not been accelerated. The expert thus concluded Kern River caused the accident, although he agreed Logan’s negligence was also a cause.

Kern River had various supervisors and inspectors who periodically visited the project. It appears the inspectors’s visits were to assure safety and workmanlike performance, as provided in the parties’s contract. APC also had its own safety representative for the project. Any work problems were to be reported to APC’s on-site foreman. APC’s former vice president said APC did not expect Kern River to check daily on APC’s equipment or to run its safety program; rather, it was APC’s responsibility under the contract. APC had experience in building pipelines in the mountains. Its employees were experienced and trained in laying pipe. APC’s former vice president said APC brought expertise to the project, expertise Kern River did not have.

The Erwins argue these facts show Kern River exercised economic pressure over APC, causing APC to rush work and compromise safety. Closely related is their argument that Kern River’s acceleration of the work schedule set the stage for APC’s unsafe work practices, which led to the accident. We examine these two theories of active participation together.

*7 An independent contractor undoubtedly always has incentive to do that which its principal employer wants done, within the time it wants that done. Such economic pressure, which appears to exist here, is not tantamount to Kern River’s directing or controlling the day-to-day manner of doing APC’s work, or the means and methods by which the results were to be accomplished. See and compare Dayton, 148 P. at 411-12. Control of the overall schedule should not suffice. This is especially true where it is uncontested APC agreed to the accelerated schedule and the mobilization to the Wasatch area, and Kern River paid APC for this change. APC could have told Kern River it could or would not carry out its work under an accelerated schedule, but APC chose not to. While there was expert testimony the accelerated work schedule was unsafe, that it caused a shortage of equipment, and that this shortage may have led to Logan’s using inappropriate equipment on the day of the accident, the record does not show Kern River actively participated in anything other than the ultimate schedule. Indeed, under the contract and in practice, APC was responsible for providing workers and equipment regardless of the schedule.

The Erwins do not cite a case in which mere economic incentive or coercion, or the acceleration of a schedule, sufficed to show a principal’s active participation. Neither have we found a Utah case so holding. In the absence of such a case, we find the general rule on active participation of Dayton and its progeny controlling. We hold any economic pressure Kern River may have exercised over APC, and its mere acceleration of the project’s schedule, did not constitute the sort of active participation contemplated by the Dayton line of cases.

The Erwins also argue Kern River actively participated in the project by directing the construction of the Wasatch area right-of-way, the negligent design of which they say caused the accident. Kern River relies on the fact that, although Kern River was to provide the rights-of-way, APC agreed to have some restriction in the Wasatch area and did not request a broader one at the accident site. We find this persuasive. We also find persuasive that APC agreed to and was paid more for working under the accelerated schedule. Although APC advised Kern River of its mobilization in the Wasatch area, it was APC’s responsibility to provide sufficient equipment and labor. The record further discloses Kern River’s only involvement in APC’s day-to-day activities (other then Kern River’s safety and performance inspections) was its one-time involvement with the right-of-way.

Additionally, even if Kern River actively participated one time in the right-of-way’s specifics, the injury did not directly result from this participation. See Gleason, 74 P.2d at 1232; Dayton, 148 P. at 411. The boom swung free after the pin holding it broke. It was undisputedly APC’s responsibility to repair and maintain these pins and its other equipment. Under the contract and in practice, APC, not Kern River, furnished and supplied all tools, labor, and equipment for the work. Neither does anyone dispute that Logan should not have used a sideboom crane to do what he was doing when the crane’s pin broke. No one from Kern River was present or directed the manner or means of APC’s work at the time of the accident. There is no indication Kern River’s inspectors knew APC was using sideboom cranes for this purpose. No one from Kern River advised Logan to use a sideboom crane, to back it down the hill after the pin fell out, or to do so without first ensuring everyone was clear. APC, not Kern River, made these daily decisions. The equipment’s failure, and the negligent decision to use the crane and to back it down the hill without clearing all workers, directly caused Shane Erwin’s accident.

*8 Accordingly, we overrule point of error one on this ground.

2. Nondelegable Duty: Inherently Dangerous Activity

Also in point of error one, the Erwins argue Kern River is liable because the project was inherently dangerous. See Dayton, 148 P. at 412.⁷ We need not decide whether the project was inherently dangerous, because we find Shane Erwin was not within the class protected by the doctrine under Utah law.

Utah law recognizes a principal will be liable for injury caused to others by its contractor when the work it hires the contractor to perform is inherently dangerous and appropriate precautions are not taken. Sullivan v. Utah Gas Serv. Co., 10 Utah 2d 359, 353 P.2d 465, 467 (Utah 1960) (in dicta, citing Restatement (Second) of torts § 427 (1965)); Gleason, 74 P.2d at 1232; Dayton, 148 P. at 411. Whether the principal is liable to its contractor’s employees under this “inherently dangerous” exception is another matter. Jurisdictions split on whether a contractor’s employees fall within the protected class under this doctrine. See Francis M. Dougherty, Annotation, Liability of Employer with Regard to Inherently Dangerous Work for Injuries to Employees of Independent Contractors, 34 A.L.R.4th 914 (1984). The Erwins claim Utah law applies the inherently dangerous exception to a contractor’s employees; Kern River claims it does not.

Each party cites the Dayton decision and correctly notes it is the only Utah decision discussing the issue. In Dayton, the Utah Supreme Court addressed whether the principal employer was liable for its contractor’s employee’s injuries occurring during the blasting of an underground tunnel. Id. at 411-12. The court first cited various treatises and secondary sources for the general rule that liability attaches only where inherently dangerous work caused injury to “another” or “third persons.” Id. at 412; see Restatement (Second) of torts § 427 (1965). In dicta, the Dayton court elaborated as follows:

But it is said developing an underground tunnel by blasting is dangerous. Dangerous to whom? Here, only to those engaged in and about the work. So is feeding a threshing machine or working at sawmilling dangerous. An inexperienced employé, unguarded against attendant dangers and attempting such work, may possibly be injured. Who, if anyone, owes him duties of warning and protection? He who employed or directed or controlled him, or directed or controlled the threshing or sawing. Certainly not the farmer, who did no more than merely contract with the thresher to thresh his grain, or with the sawmiller to saw his timber …

*9 Here, the stipulated work itself, constructing and developing the tunnel, did not involve injurious or mischievous consequences to others. And the injury to plaintiff was not caused from the act of performance, but from the manner of performance over which, as has been seen, the company neither reserved nor exercised direction, control, or supervision. We think, therefore, that the case comes within the general rule that when a person employs a contractor to do work lawful in itself and involving no injurious consequences to others, and damage arises to another through the negligence of a contractor or his servants, the contractor, and not the employer, is liable.

Id. at 412. The Dayton court held that the principal had no liability because (1) the work was not inherently dangerous and (2) the manner of doing the work, over which the principal had no control, caused the accident, not the work’s intrinsic nature. Id. at 412. However, we find the Dayton decision strongly indicates, by using the above-quoted language and by consistently speaking of danger “to others,” the inherently dangerous exception would not extend to the contractor’s employees. Id. at 412.

The Tenth Circuit Court of Appeals has, in dicta, interpreted Dayton similarly. See Page, 350 F.2d at 33-34. In Page, the district court had found the United States liable for injuries to a contractor’s employee under the FTCA. Id. at 30. The district court had based its decision in part on its conclusion the work was inherently dangerous. Id. While noting Utah law did not apply, the district court had nonetheless stated it believed the government would be liable under Utah law, as expressed in Restatement of Torts (Second) section 427.⁸ In reversing on other grounds, the Page court noted that Dayton, like the law in other jurisdictions, casted serious doubt on whether the doctrine applied to the contractor’s employees. Id. at 33-34. The dicta in Page supports our interpretation of Dayton. See also Sewell, 606 F.2d at 279 (Doyle, J., dissenting) (quoting language from unpublished opinion on first appeal that inherently dangerous exception likely does not apply to contractor’s employees); Eutsler, 376 F.2d at 636 (finding, under federal law, no duty to contractor’s employees for inherently dangerous work).

The Erwins rely on Simon, which in turn relied on Dayton, to conclude that an independent contractor’s employee falls under the inherently dangerous doctrine. Simon, 699 F.Supp. at 259. The Simon court did not discuss the above-quoted language from Dayton, which we find actually undermines Simon ‘s conclusion. Id. Additionally, the Simon decision inadvertently misquoted Dayton by stating, “This is not to say that a principal can never be liable for injuries sustained by an employee of an independent contractor. The three recognized exceptions to this rule in Utah are….” Id. (emphasis added). The Dayton court, however, had defined “this rule” as applying to “third persons” or “others.” Dayton, 148 P. at 411, 412. The only other cases cited by Simon with respect to the inherently dangerous rule involved injury to a third person (Wilson v. Good Humor Corp., 757 F.2d 1293, 1303 (D.C.Cir.1985)), or held the inherently dangerous exception inapplicable to a contractor’s employees (Vagle v. Pickands Mather & Co., 611 F.2d 1212, 1217-19 (8th Cir.1979)).

*10 The Dayton decision indicates a contractor’s employee does not fall under the protected class of Utah’s inherently dangerous doctrine. While the Simon decision is to the contrary, we may not follow it when the Utah Supreme Court has indicated otherwise. Accordingly, we hold Utah would not recognize an employer’s liability to its independent contractor’s employee injured during the course of inherently dangerous work. Therefore, Kern River cannot be liable to Shane Erwin under this theory, and we overrule point of error one on this ground.

3. Assumed Duty of Care

Also under point of error one, the Erwins claim Kern River assumed a duty of care to Shane Erwin, which duty Kern River breached. They argue that Kern River expressly adopted a duty to APC’s employees in an operation plan, entitled the Construction, Operation, and Maintenance Plan (COM Plan), Kern River devised for the project. The trial court excluded the COM Plan and testimony explaining it. If this document and testimony were properly excluded, the record contains no evidence to support Kern River’s liability under this theory, and we must affirm point of error one. If this evidence was improperly excluded, precluding the record from containing evidence to support the Erwins’s liability theory, a directed verdict would have been improper. Therefore, we first examine whether the COM Plan and the related testimony were properly excluded.

Exclusion of Evidence

In points of error two and three, the Erwins claim the trial court erred in excluding certain testimony and the COM Plan.

The exclusion of evidence is committed to the trial court’s sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Felker v. Petrolon, Inc., 929 S.W.2d 460, 467 (Tex.App.-Houston [1st Dist.] 1996, writ denied). For the exclusion of evidence to constitute reversible error, an appellant must show (1) the trial court committed error and (2) the error was reasonably calculated to cause, and probably did cause, rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.1992). This standard usually requires the complaining party to show that the judgment turns on the particular evidence excluded. Alvarado, 897 S.W.2d at 753-54; Stuart v. Bayless, 945 S.W.2d 131, 143 (Tex.App.-Houston [1st Dist.] 1996, no writ) (op. on rehearing). Accordingly, the exclusion of cumulative evidence is not reversible error. Reina v. General Accident Fire & Life Assurance Co., 611 S.W.2d 415, 417 (Tex.1981); British Am. Ins. Co. v. Howarton, 877 S.W.2d 347, 350 (Tex.App.-Houston [1st Dist.] 1994, writ dism’d by agr.). We review the entire record. Alvarado, 897 S.W.2d at 754.

COM Plan and Related Testimony

*11 The resolution of the remainder of the Erwins’s first point of error depends on whether the COM Plan and related testimony were correctly excluded. In point of error two, the Erwins argue the trial court improperly excluded the COM Plan and testimony relating to it.

Kern River had to adopt the COM Plan before federal governmental agencies would grant Kern River rights-of-way on federal land. See 43 U.S.C. § 1764(d) (1995); 36 C.F.R. § 251.54(e)(4) (1997); 43 C.F.R. § 2882.3(m) (1996). Kern River perceived the COM Plan as a commitment or agreement with the governmental agencies granting Kern River permits. By its own terms, the COM Plan was drafted for the federal government principally to address environmental concerns.

The Erwins rely on the following COM Plan section to support their argument:

8.0 Safety Policies and Program

8.1 Purpose

The purpose of these policies and program is to provide minimum requirements that shall be followed by Kern River during construction operations. It is intended to provide for the safety and welfare of contractor employees, Kern River’s personnel, and the general public.

8.2 Plan

8.2.1 Kern River shall be solely responsible for initiating, implementing, maintaining, and supervising all safety precautions and programs in connection with construction. This shall include employee safety training and prompt elimination of all unsafe physical and/or mechanical conditions. The contractors shall take any precautions necessary to ensure the safety of all proposed personnel and property.

The Erwins argue that Kern River assumed a duty to them under Restatement of Torts (Second) section 323 by adopting section eight of the COM Plan. See Restatement (Second) of Torts § 323 (1965).⁹ As is clear from the text and its own commentary, this section applies only to one undertaking a service to another. The Erwins claim Kern River assumed the following “services” to APC’s employees, including Shane Erwin: (1) “to provide for the safety and welfare of contractor employees ” (¶ 8.1) and (2) “[to] be solely responsible for initiating, implementing, maintaining, and supervising all safety precautions and programs in connection with construction” (¶ 8.2.1). However, the Erwins overlook paragraph 8.2.1’s explanation for which “safety precautions and programs” Kern River took responsibility: “This shall include employee safety training and prompt elimination of all unsafe physical and/or mechanical conditions.” The COM Plan then clearly provides that contractors, not Kern River, will be responsible for taking precautions to ensure the safety of all personnel, such as Shane Erwin. This was also APC’s duty under article 17 of the parties’s contract.

Therefore, even if the COM Plan could somehow create a duty from Kern River to APC’s employees, which we need not decide, no such duty was created here. The COM Plan was, therefore, irrelevant. Accordingly, the trial court did not err in excluding the evidence relating to the COM Plan. We overrule point of error two.

*12 Because the COM Plan and related testimony were properly excluded, the record contains no evidence to support the Erwins’s assumed duty argument. Accordingly, we overrule the final ground under point of error one.

Testimony of Pipeline’s Cost

In point of error three, the Erwins contend the trial court erred in excluding the deposition testimony of Cuba Wadlington, Kern River’s vice president, concerning the pipeline’s cost, because they claim the testimony was relevant to show Kern River’s motive to exercise improper control over the construction methods causing the accident. The excluded testimony was as follows:

Q: All right, sir. At the time that your company formed a partnership with Tenneco, which became Kern River Gas Transmission Company, what was generally the projected cost of the project to completion so that the gas could flow through the pipe, the entire project?

A: It seems to me that the cost of the pipeline was always somewhere in the neighborhood of 800 plus million dollars, was what we were looking at.

Q: All right, sir. Did you have … projections as to when that cost could be recovered, how long that might take?

A: Well, it was just-it was really a function-a function of the type of contracts that we entered into. And at the time we were doing the feasibility study, we were looking at 20-year contracts with the intent of having out all of our capital recovered by the 20th year.

Q: Without needing to know the actual figures, did the project end up, ballpark, of what you expected, around 800 million, something like that?

A: Yes. The ultimate cost turned out to be 900-I think about $980 million. But that was a very acceptable overrun for that size of a project.

The Erwins argued below this testimony was relevant because it showed Kern River’s motivation for rushing the project: the sooner the project was done, the sooner Kern River could start moving gas through the pipeline. The Erwins argued that, based on the total project cost, one could deduce the monthly profits necessary to recover costs and the amount Kern River would lose if the project were delayed by a few months.

We have already held that Kern River’s economic motivation for accelerating the project had no bearing on whether Kern River actively participated in the day-to-day details of APC’s work. Therefore, the testimony was irrelevant. Additionally, while this testimony shows the overall project’s cost, it does not, as the Erwins claim, state that specific, monthly profits from the pipeline’s use are necessary to meet Kern River’s economic needs. Further, Wadlington was not qualified as an economic expert, and the excluded testimony did not consider economic factors other than customers’s use of the pipeline that might allow Kern River to pay the pipeline’s costs. Finally, the jury later heard testimony that whether the job was completed on schedule had an enormous impact on Kern River’s economics. Therefore, the excluded testimony was cumulative of evidence already before the jury. See Reina, 611 S.W.2d at 417. We hold the trial court did not abuse its discretion, under these circumstances, in excluding this testimony. See Alvarado, 897 S.W.2d at 753.

*13 We overrule point of error three.

Conclusion

We affirm the trial court’s judgment.

Justices TAFT and BASS¹⁰ also sitting.

	Footnotes
1		We refer to appellees Kern River Transmission Company, Kern River Corporation, and Williams Western Pipeline Company collectively as “Kern River.”
2		The accident occurred in Utah. Neither party contested, on appeal or below, the application of Utah substantive law. Texas law governs procedural and evidentiary matters, however. See Penny v. Powell, 162 Tex. 497, 347 S.W.2d 601, 602 (Tex.1961); Paine v. Moore, 464 S.W.2d 477, 479 (Tex.Civ.App.-Tyler 1971, no writ).
3		In the oral motion, Kern River argued: (1) Angela Erwin could not maintain a consortium claim; (2) there was no evidence of Kern River’s negligence, or that Kern River controlled or participated in the construction; (3) there was no proximate cause between Kern River’s actions and Shane Erwin’s injuries; (4) APC’s employee’s negligence was an unforeseeable, superseding cause of the injury; (5) no evidence supported a gross negligence instruction; (6) and the “inherently dangerous” exception, which the Erwins argued would create a duty on Kern River’s part, did not apply. Kern River neither pleaded nor asserted the workers’s compensation bar. See Utah Code Ann. §§ 35-1-42, 35-1-60 (1994). The trial court’s final judgment recited the Erwins had proffered either no or insufficient evidence.
4		It appears Utah would consider a claim for loss of spousal services to be part of a spousal consortium claim. See Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1290 (Utah 1987) (Durham, J., dissenting, noting the definition of “consortium” includes company, society, cooperation, affection, and aid) (citing Black’s Law Dictionary 280 (5th ed.1979)); Ellis v. Hathaway, 27 Utah 2d 143, 493 P.2d 985, 985, 986 (Utah 1972) (treating wife’s claims for loss of support, companionship, love, and affection as prohibited loss-of-consortium claims).
5		For example, Harrison testified Kern River’s superintendent told him he had to build a 12-mile right-of-way in under two weeks, or about 1,000 feet a day with each bulldozer, or Kern River would shut the job down. Harrison told Kern River’s superintendent it was impossible to cut the right-of-way in that time.
6		If a sideboom crane’s pivot pin is not lubricated, it seizes up, putting the pin in a position where it can break and fall out. It was not uncommon for these pins to fall out, especially in terrain like that in the Wasatch area. It was undisputed that APC, not Kern River, was responsible for greasing these pins and maintaining the sideboom crane and its equipment. Prior to the accident, APC did not know these pins required lubrication.
7		In addition to the facts set out above, the Erwins point to the undisputed testimony that the Wasatch area was the steepest, most dangerous, and roughest part of spread two. Kern River knew of the Wasatch mountains’s steep and treacherous nature.
8		Section 427 provides, “One who employs an independent contractor to do work involving special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm to such others by the contractor’s failure to take reasonable precautions against such danger.” Restatement (Second) of torts § 427 (1965) (emphasis added).
9		“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm….” Restatement (Second) of Torts § 323 (1965). Utah has adopted Restatement of Torts (Second) section 323. See Weber v. Springville, 725 P.2d 1360, 1364 n. 7, 8 (Utah 1986); DCR Inc. v. Peak Alarm Co., 663 P.2d 433, 436 (Utah 1983).
10		The Honorable Sam H. Bass, retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.