Court of Appeals of Texas, Texarkana.

Charles L. GRAGSON and Sylvie Gragson, Appellants,

v.

M.E. & E. WELDING & FABRICATION, INC., Appellee.

No. 06–00–00044–CV.

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Submitted Sept. 20, 2001.

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Decided Oct. 10, 2001.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

GRANT.

*1 Charles Gragson and Sylvie Gragson appeal from a take-nothing judgment in their premises liability suit against M.E. & E. Welding & Fabrication, Inc., rendered because the jury found the conduct of Charles Gragson’s employer, Anchor Crane & Hoist, Inc., was the sole proximate cause of his injuries.¹ Anchor Crane was not a party to the suit because of workers’ compensation immunity. Gragson contends the jury question on sole proximate cause was improper as an inferential rebuttal question, the court erred by not submitting his requested instruction, there was no legal or factual basis for submitting such a question, and there is insufficient evidence to support the jury’s answer.

Employers Insurance of Wausau, a Mutual Company (Wausau), intervened in the suit for recovery of the money paid to Gragson under his workers’ compensation. Wausau contends the trial court erred by assessing all taxable court costs against it when Gragson lost his case and joins with Gragson in his contentions of error.

Charles Gragson was working for Anchor Crane at the welding company’s premises when he fell through a hole in a sixteen-foot roof that M.E. & E. had created and covered with a sheet of plywood. The hole was over the top of the room used for painting items and was placed there so that a crane could lift heavy items out of the room. Gragson, a new employee of Anchor Crane, was on the roof with senior service technician Roy Riffel to replace a motor on the crane. There is no question that Riffel knew about the hole and its purpose. There is conflicting evidence that he or others told Gragson about the hole. M.E. & E. offered to erect scaffolding, but Riffel declined because of time constraints. The evidence showed that various types of protective gear, i.e., safety belts, tie-offs, and lanyards, were in the Anchor Crane truck, but Riffel and Gragson did not use the protective gear.

In response to question number one, the jury found Anchor Crane’s conduct was the “sole proximate cause” of Gragson’s injuries, and thus did not answer the remaining questions. The court assessed costs of approximately $10,000 against Wausau.

Gragson first contends question one should not have been sent to the jury because it was an inferential rebuttal issue, and thus improper. Sole proximate cause is an inferential rebuttal issue which, when invoked by a defendant, purports to negate an element of the plaintiff’s cause of action. Walzier v. Newton, 27 S.W.3d 561, 564 (Tex.App.—Amarillo 2000, no pet.); DeLeon v. Pickens, 933 S.W.2d 286, 290–91 (Tex.App.—Corpus Christi 1996, writ denied); Am. Jet, Inc. v. Leyendecker, 683 S.W.2d 121, 126 (Tex.App.—San Antonio 1984, no writ). When it has been raised by the evidence, it must be submitted to the jury-but only as an instruction. Nat’l Union Fire Ins. Co. v. Kwiatkowski, 915 S.W.2d 662, 665 (Tex.App.—Houston [14th Dist.] 1996, no writ); Reid v. Best Waste Sys., Inc., 800 S.W.2d 644, 646 (Tex.App.—Houston [14th Dist.] 1990, writ denied); see Comm. on Pattern Jury Charges, State Bar Of Tex., Texas Pattern Jury Charges PJC 3.2 (2000).²

*2 Gragson failed to object to the submission as a question rather than an instruction. In his objections, counsel objected there should not be any instruction in any form on sole proximate cause and asked the court to remove the “instruction.” He also argued alternatively that the sole proximate cause issue was irrelevant and should not be submitted because Anchor Crane owed no duty in the case and because there was no evidence that Anchor Crane had any knowledge of the defective condition.

The claim now raised on appeal, that this is an inferential rebuttal and thus may only be submitted as an instruction instead of a question, was not raised in the trial court. Gragson did not complain the submission should not be in question form, but only that it was wholly improper and unsupported by the evidence. Tex.R. Civ. P. 274 provides: “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” There is only one test for “determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992); De Leon v. Furr’s Supermarkets, Inc., 31 S.W.3d 297, 299 (Tex.App.—El Paso 2000, no pet. h.). In the present case, the claim of error has not been preserved for our review. The contention is overruled.

Gragson also contends there was no reason to submit such a jury charge in any form because Anchor Crane owed no legal duty to Gragson and because M.E. & E. had a nondelegable duty to maintain a safe premises. He argues that in this type of case, the liability of the premises owner cannot be shifted onto the employer of the worker and that there is no evidence that would permit the question to be given to the jury.

A court must submit questions, instructions, and definitions that the pleadings and evidence raise. Tex.R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). A trial court may refuse to submit a question only if no evidence exists to warrant its submission. Elbaor, 845 S.W.2d at 243. It is the duty of the trial court to determine whether the doctrine of sole proximate cause has been raised by the evidence. If the evidence supports an instruction and the instruction has been raised properly by the pleadings, the trial court has a duty to submit the instruction. Charter Oak Fire Ins. Co. v. Taylor, 658 S.W.2d 227, 229 (Tex.App.—Houston [1st Dist.] 1983, no writ); see also Cook v. Caterpillar, Inc., 849 S.W.2d 434 (Tex.App.—Amarillo 1993, writ denied) (holding it is reversible error for a trial court to exclude a definition on “new and independent cause,” an inferential rebuttal defense, when supported by the evidence). Kwiatkowski, 915 S.W.2d at 665; DeLeon, 933 S.W.2d at 290–91.

*3 This court has held that the act of a third party that is determined to be the sole proximate cause of an accident is a complete defense to a negligence suit, regardless of whether that third party was negligent. Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 207 (Tex.App.—Texarkana 2000, pet. denied). Accordingly, it was not strictly necessary for Gragson to prove that Anchor Crane was negligent in order to obtain an instruction on sole proximate cause. The correct question is whether there is some evidence that the conduct of Anchor Crane was the sole proximate cause of the accident.

Gragson also raises the legal argument that Varela v. Am. Petrofina Co. of Texas, Inc., 658 S.W.2d 561 (Tex.1983), precludes the use of sole cause submission in a premises liability case and that the later Dresser Indus., Inc. v. Lee, 880 S.W.2d 750 (Tex.1993), opinion expressly limits the submission to products liability claims. Varela is an appeal from a third-party slip-and-fall negligence action brought by a carpenter covered by workers’ compensation against the owner of the work site. The jury apportioned damages among the three: the owner, the employer, and the employee. The sole question before the court was whether the employer’s negligence could be considered. The court concluded that because of the application of the workers’ compensation statutes, it could not, and that under the apportionment statutes in effect at that time, the employee was to recover the total amount of damages diminished only in proportion to the amount of negligence attributed to the employee. Varela, 658 S.W.2d at 562.

Dresser addresses a division in the appellate courts about the proper application of Varela. The Court stated that Varela could not be read broadly to deny generally the use of sole proximate cause instructions and held that the defendant was entitled to attempt to show that the employer’s negligence was the sole proximate cause of the employee’s injuries. Gragson suggests that this decision is limited to cases of product liability. There is nothing in the Dresser opinion, however, limiting its decision to that arena. Further, Gragson has directed this court to no other authority that so limits the concept, and there is considerable authority in other contexts in which sole proximate cause has been addressed in a third-party defendant situation.³

The question then becomes whether there is some evidence to support the submission of that defensive theory.⁴ Gragson has also raised a contention that there was no evidence to show Anchor Crane’s conduct was a proximate cause of the injury, as well as no evidence to show that its conduct was the sole proximate cause. Because both of these contentions require a review of the evidence, we will consider them together. Determination of proximate cause is a question for the trier of fact. Ramey v. Collagen Corp., 821 S.W.2d 208, 212 (Tex.App.—Houston [14th Dist.] 1991, writ denied).

*4 Proximate cause consists of two elements: cause in fact and foreseeability. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex .1996); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). We therefore must examine the record to determine whether there is legally and factually sufficient evidence to support an affirmative finding on each of these elements.

The cause in fact element of proximate cause is met when there is some evidence that the act or omission was a substantial factor in bringing about injury, without which act or omission the harm would not have occurred. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex.1998).

The other element of proximate cause is foreseeability. In the context of proximate cause, foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. Read, 990 S.W.2d at 737; Doe, 907 S.W.2d at 478. Foreseeability in the context of causation asks whether an injury might reasonably have been contemplated because of the defendant’s conduct. Read, 990 S.W.2d at 737. Foreseeability does not permit simply viewing the facts in retrospect and theorizing an extraordinary sequence of events by which the defendant’s conduct caused the injury. Id. Rather, the question of foreseeability “involves a practical inquiry based on ‘common experience applied to human conduct.’ “ Id.

Evidence was submitted that Gragson had been employed by Anchor Crane for only thirteen days and was receiving on-the-job training on the day of the accident, that only one safety training session—on defensive driving—was held with Gragson, that Anchor Crane gave Gragson no instruction concerning safety measures to be used when working in a raised structure although it acknowledged that working on a crane typically involves working at a height, and also that there should have been safety instructions about working at a height because falls are the predominant hazard in crane repair work. The evidence shows Gragson was not using protective gear or safety lines, despite the fact they were available in the truck and, in the interest of speed, his supervisor made no effort to observe safety practices. It also shows Gragson was given a safety manual—but not told to read it (and no one had checked to see if he had read it) and the training that Gragson was given was inadequate.

Riffel testified that the safety meetings did not reinforce safety consciousness and that he knew there was a hole in the roof at the job site. The Anchor Crane safety manual states that installation sites are to be inspected, using an inspection form, before beginning work and that hazards should be identified to customer management to determine if governmental and company safety regulations are being observed. Gragson testified he did not know of any such inspection being performed. There was also evidence that an employer is responsible for ensuring that his employees comply with Occupational Safety & Health Administration safety guidelines in connection with the provision and use of required safety equipment.

*5 There is evidence Anchor Crane 1) was aware of the hole, 2) did not tell Gragson about the hole, 3) rejected M.E. & E.’s offer to set up a scaffold that would have kept Gragson from needing to walk on the roof near the hole, 4) decided not to use available safety equipment, 5) provided Gragson with no training on the aspect of his work that causes the most injuries in the profession: working at a height, and 6) did not follow its own safety procedures by inspecting the work area before beginning repairs.

This is some evidence which supports the submission of a charge to the jury on sole proximate cause.

Gragson further contends that even if there were some evidence to support submission of the question, the verdict was contrary to the evidence. The defensive question was framed to inquire if the jury found from a preponderance of the evidence that Anchor Crane’s conduct was the sole proximate cause of the accident. Gragson therefore argues that the evidence is legally and factually insufficient to support the verdict.

When deciding a no-evidence point, in determining whether there is no evidence of probative force to support a jury’s finding, we must consider all of the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party’s favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In this review, we disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995).

When considering a factual sufficiency challenge to a jury’s verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of appeals is not a fact finder. Accordingly, we may not pass on the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Mar. Overseas Corp., 971 S.W.2d at 407. If we find the evidence insufficient, we must state clearly why the jury’s finding is factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

The evidence shows Anchor Crane brought an inexperienced employee to a work site, and although aware of a dangerous condition at the work site, declined the offer by the welding company to provide scaffolding that would have eliminated the danger and also decided not to use immediately available safety equipment for its employee’s protection. Anchor Crane also failed to instruct Gragson about safety measures to follow when working above ground level, failed to conduct the required inspection of the work site, failed to stay in observational range of the new employee, and there is evidence that Riffel, although fully aware of the hole in the roof, did not warn Gragson.

*6 The evidence also shows M.E. & E. was aware of the covered hole and knew it could be a danger, as shown most clearly by the evidence that it suggested the use of a scaffold and that the hole was placed there intentionally.

The evidence shows falls from heights are the major cause of on-the-job injuries for crane workers and repairmen. The evidence shows Anchor Crane was aware of this fact, but nevertheless failed to make any effort to address the problem with this newly-hired employee, who had no prior experience with this type of environment. It was certainly foreseeable that in the absence of any training or warnings or serious implementation of safety measures, Gragson might not act responsibly or safely—either from his own lack of forethought or from a simple lack of knowledge—and that a fall from heights would cause serious injuries. As we previously concluded in our discussion of sole proximate cause, this evidence is both legally and factually sufficient to show that such an injury was foreseeable. It is certainly not legally remote and thus unforeseeable, as Gragson argues.

Gragson also raises a related contention, arguing there is no evidence Anchor Crane knew about the hole. To make this argument, he takes the position that the fact Riffel knew about the hole cannot be imputed to the company. This argument presupposes that before knowledge will be imputed to the corporation, some proven agent or corporate officer must be the individual with knowledge. To accept this argument would typically eviscerate any ability to hold an employer liable when knowledge is at issue, because normally only the employees or line level supervisors will have actual knowledge of any dangerous condition. Counsel has directed this court to no authority to support his position, and we are aware of none. Cf. Sappington v. Younger Transp., Inc., 758 S.W.2d 866 (Tex.App.—Corpus Christi 1988, writ denied).

Gragson also makes a more subtle argument in which he contends the evidence shows that the true form of the hole was not apparent, even if Riffel knew the hole was there. He argues this evidence is uncontroverted and of such importance as to it require this court to conclude the jury’s verdict was unsupported by the evidence.

In support of his argument, Gragson also points to evidence from his expert, Gary Jackson. Jackson testified that because the supports beneath the sheet metal around the hole were not supported immediately beside the hole, they would flex and thus make it more likely that a fall would occur, and that this was not apparent upon examination from the roof, even if the sheet of plywood was not in place. The pictures and diagrams provided to the jury, however, do not make such a strong case as is described by Gragson in his brief. It is apparent from the pictures and from the diagrams setting out the design that the hole was boxed in with metal which extended several inches above the surrounding sheet metal and that there was support beneath the sheet metal only a few inches away from the sides of the hole. Thus, even though there was a possibility of flex in the sheet metal within a few inches of the hole, it is certainly not the “trap door” described by counsel. The jury could have concluded from this conflicting evidence that Gragson’s argument was not convincing.

*7 The point in this case is not so much the content of the evidence as the inferences to be drawn from it and the fault to be assessed from the evidence. In an abstract sense, of course, if the hole were not there, then no one could be hurt by it. However, from a pragmatic standpoint, the crane would have been useless without an opening in the roof, and M.E. & E. took positive steps to provide safety measures, which were refused by Anchor Crane, for the known danger. Further, as previously recognized by this court, a third party may be the sole proximate cause of an injury even if for some reason that party may not be held liable for its action. Huckaby, 20 S.W.3d at 207. The jury had legally and factually sufficient evidence on which to base its finding of sole proximate cause. There was also necessarily sufficient evidence to support a finding that Anchor Crane’s conduct was a proximate cause of the injury.

Gragson also contends the trial court erred by refusing to give his requested instruction that the knowledge and conduct of Anchor Crane, as a corporate entity, could only be established through its vice-principals, officers, directors, managers, and other authorized corporate officials.

Gragson did request an instruction. However, he did not submit one in writing, nor did he attempt to dictate a proposed instruction into the record.

Either party may request and present to the trial court written questions, definitions, and instructions to be given to the jury. Tex.R. Civ. P. 273. To complain of the trial court’s omission of a requested instruction on appeal, a party is obliged to make a written request to the trial court for a substantially correct instruction. Tex.R. Civ. P. 278; Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex.1995); Mason v. S. Pac. Transp. Co., 892 S.W.2d 115, 117 (Tex.App.—Houston [1st Dist.] 1994, writ denied); Texas Employers Ins. Ass’n v. Alcantara, 764 S.W.2d 865, 867–68 (Tex.App.—Texarkana 1989, no writ). If a party does not submit that written request, he waives any error by the trial court in not submitting it. Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 166 (Tex.App.—San Antonio 1993, writ denied). Dictating a requested instruction to the court reporter is not sufficient to support an appeal based on the trial court’s refusal to submit requested material. Id. at 165; Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 25 (Tex.App.—Houston [1st Dist.] 1996, writ denied).

The contention has been waived because no written instruction was submitted to the court. Further, the oral discussion did not delineate the scope of the proposed instruction in any but the most general terms. Finally, even if not waived, Gragson’s position that Anchor Crane could not be liable for the acts of its employees is contrary to the state of the law. See Read, 990 S.W.2d 732; Sappington, 758 S.W.2d 866.

Wausau contends that the trial court abused its discretion in assessing costs of the lawsuit against it. Wausau was a party to the lawsuit, aligned with Gragson. Wausau, the workers’ compensation carrier, chose to join the lawsuit in order to protect any lien it might have over proceeds obtained by Gragson from M.E. & E.

*8 The Texas Rules of Civil Procedure provide that, “The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Tex.R. Civ. P. 131.⁵ The decision to assess costs is within the trial court’s discretion. Absent an abuse of discretion, we will not reverse the trial court’s assessment of costs. Seelbach v. Clubb, 7 S.W.3d 749, 764 (Tex.App.—Texarkana 1999, pet. denied); Hasty, Inc. v. Inwood Buckhorn Joint Venture, 908 S.W.2d 494, 502 (Tex.App.—Dallas 1995, writ denied).

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate judge does not demonstrate such an abuse. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985).

Wausau argues that when a trial court assesses all costs against one of the two plaintiffs, it abuses its discretion and that the costs should be taxed against the losing parties in proportion to their interest and activity in the litigation. Wausau suggests the proportion of one-tenth to it and nine-tenths to Gragson, or alternatively that we remand for reapportionment.

Wausau cites two cases to support its position. In Gasperson v.. Madill Nat’l Bank, 455 S.W.2d 381 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n.r.e.), the Fort Worth court found that where a month-long trial primarily involved litigation between two parties, taxing two-thirds of costs jointly against one of such parties and another party whose interest in litigation and whose participation was minimal was erroneous and constituted an abuse of discretion. The court then assessed costs itself and rendered judgment on that issue. Id. at 399.

In the only case to cite Gasperson on this point, the Austin Court of Appeals reviewed a situation where all costs were assessed against one of two tortfeasors. The court cited the abuse of discretion standard and presumably determined that the situation constituted such an abuse, holding that since a party was a joint tortfeasor there is no reason why she should not participate in the payment of costs. Texas Dep’t of Human Res. v. Orr, 730 S.W.2d 435, 438 (Tex.App.—Austin 1987, no writ). The court then reformed the judgment to order that costs be assessed jointly and severally against both tortfeasors.

The question before this court is whether assessment of all costs against Wausau constitutes an abuse of discretion. Both Gragson and Wausau were parties to the suit, with Wausau as an intervenor. Wausau originally entered the suit in 1998 under the name of its insured, Anchor Crane. It later withdrew and filed an intervention in its own name. Wausau focuses its claim on the facts that it did not conduct any depositions and that its attorney appeared only on the first day of trial in order to obtain a stipulation as to Wausau’s lien interest. Because of its minimal level of activity in the suit, it argues that it should not be required to pay any costs associated with the suit.

*9 However, that same information also shows that Wausau claimed the “first dollars” of any recovery in the amount of $264,122 as a lien for monies it had paid to Gragson on Anchor Crane’s behalf. Thus, Wausau had a substantial interest in the prosecution of the case.

Under the analysis set out in Gasperson, the trial court was required to consider Wausau’s participation and its interest in the case in assessing costs. Wausau’s activity or participation in the case was minor. Its interest, however, was quite substantial—and not simply a percentage, but the first quarter of a million dollars recovered.

Under these facts, we must now decide whether the trial court’s assessment of costs constitutes an abuse of discretion. We conclude that it does. The fact that Wausau did not participate in pretrial or trial proceedings beyond the bare minimum necessary to protect its lien reflects that it was not instrumental in causing the costs. Under these facts, we conclude the trial court abused its discretion by assessing all costs against Wausau. The contention of error is sustained. We further conclude that the procedure followed by the Austin Court of Appeals in Orr is proper, and we reform the judgment to assess taxable court costs jointly and severally against Gragson and Wausau.

As reformed, the jury verdict is affirmed.

	Footnotes
1		Although both parties appealed, there is no distinction between their claims, and appellants will be referred to hereafter either as “Gragson” or by proper name.
2		The question read as follows: Do you find that the conduct of Anchor Crane was the sole proximate cause of Charles L. Gragson’s injuries? Answer “Yes” or “No.” Answer: Yes You are instructed that the Defendant has the burden of proof by a preponderance of the evidence on this question. There was also an instruction that defined proximate cause and another that provided an instruction about “sole proximate cause” that read as follows: There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the “sole proximate cause” of an occurrence, then no act or omission of any other person could have been a proximate cause.
3		Excel Corp. v. Apodaca, No. 07–99–0501–CV, 2001 WL 261663, at *11 (Tex.App.—Amarillo Mar. 16, 2001, no pet. h.) (employee cannot recover if own acts are sole proximate cause of injury); Park v. Larison, 28 S.W.3d 106, 109 (Tex. App Texarkana 2000, no pet. h.); Lozano v. H.D. Indus., Inc., 953 S.W.2d 304, 318 (Tex.App.—El Paso 1997, no writ) (A third-party defendant is entitled to submit evidence concerning the negligence of a subscribing employer and is also entitled to a jury question that asks whether the subscribing employer’s conduct constituted the sole proximate cause of the accident. We note that the Dresser Indus., Inc. v. Lee, 880 S.W.2d 750 (Tex.1993), opinion does not suggest that a jury question is appropriate, but does state that an instruction is appropriate.); Sappington v. Younger Transp., Inc., 758 S.W.2d 866, 868 (Tex.App.—Corpus Christi 1988, writ denied).
4		An employer is under a duty to provide his employees with a reasonably safe place to work and to furnish the necessary appliances for carrying on the work requested of the employees in a proper condition and with reasonable safety. Werner v. Colwell, 857 S.W.2d 75, 81 (Tex.App.—Waco 1993), rev’d on other grounds, 909 S.W.2d 866 (Tex.1995); Prewitt v. Waller, 423 S.W .2d 641, 644 (Tex.Civ.App.—Dallas 1967, no writ). Furthermore, an employer must furnish an adequate force of competent workmen for carrying on with reasonable safety work requested of employees. Holiday Lodge Nursing Home, Inc. v. Huffman, 430 S.W.2d 826, 828 (Tex.Civ.App.—Texarkana 1968, no writ). If an employer breaches any of his duties, an employee’s negligence action against the employer will be supported. Prewitt, 423 S.W.2d at 644. However, an employer has no duty to adopt safety rules where its business is neither complex nor hazardous or where the dangers incident to the work are obvious or are of common knowledge and fully understood by the employee. Nat’l Convenience Stores, Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex.App.—Houston [14th Dist.] 1999, no pet. h.); see Sloan v. Leger Mill Co., 161 S.W.2d 333, 335–36 (Tex.Civ.App.—Amarillo 1942, writ ref’d w.o.m.). Similarly, the duty to warn or caution an employee of a danger arises when: (a) the employment is of a dangerous character requiring skill and caution for its safe and proper discharge, and (b) the employer is aware of the danger and has reason to know the employee is unaware of the danger. See Lopez v. Ely, 302 S.W.2d 957, 959 (Tex.Civ.App.—Austin 1957, no writ). Likewise, an employer’s duty to instruct applies to an inexperienced employee, but not to one who is experienced in the work to which he is assigned. See W.E. Grace Mfg. Co. v. Arp, 311 S.W.2d 278, 281 (Tex.Civ.App.—Dallas 1958, writ ref’d n.r.e.).
5		The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules. Tex.R. Civ. P. 141.