Court of Appeals of Texas, Corpus Christi-Edinburg.

Maria Christina ROBLES,Appellant,

v.

TEM–KIL CORPORATION d/b/a Kentucky Fried Chicken, Appellee.

No. 13–95–555–CV.

|

April 29, 1997.

Before Chief Justice SEERDEN, and Justices DORSEY and CHAVEZ

OPINION

DORSEY.

*1 This is a personal injury case. Maria Robles sued her employer, Tem–Kil Corporation d/b/a Kentucky Fried Chicken (KFC) alleging negligence involving an on-thejob injury which she received when a fellow employee spilled boiling water on her. The jury failed to find that KFC was negligent, and the trial court entered a judgment for KFC. By two points of error, Robles contends that the evidence established as a matter of law, or alternatively, by the great weight and preponderance, that KFC was negligent. We affirm.

On June 24, 1992, Maria Robles worked for KFC as a shift supervisor. One of her fellow employees, Fernando Gonzalez, was in charge of making the instant mashed potatoes. The recipe called for three quarts of boiling water per one bag of instant mashed potatoes. Gonzalez had to heat the water on a stove and carry it in a pitcher to the mashed-potato mixer, a distance of about fifteen feet. The restaurant did not have a stove or burner closer to the mixer. The pitchers had five- or six-inch openings and did not have tops on them. Each pitcher had incremental measurements on it; the first line showed one quart, the second showed two quarts, the third showed three quarts, and if a pitcher was filled to the top, it held one gallon. The restaurant had two food warmers and a refrigeration unit (collectively the cabinets) placed side by side inside the restaurant towards the back. Robles’ testimony showed that these stainless steel cabinets exceeded six feet in height, preventing her from seeing who was on the other side of them. While she walked towards the cabinets, Gonzalez was on the other side of them, carrying a pitcher filled to the top with boiling water. When she reached around the cabinets, she bumped into him. The only thing that she remembered was raising her hand to cover her face and feeling the contents of the boiling water. The water hit her under the chin and went all the way down. She screamed and asked Gonzalez to help her. She jumped into the kitchen sink filled with cold water. Gonzalez used the sink’s sprinkler to apply water to her skin. She received burns to her shoulder, part of her neck, back, and her right and left sides. Gonzalez took her to the hospital where she received treatment for her burns.

Prior to this incident, she had seen Gonzalez fill these pitchers with boiling water all the way to the top. She had advised the restaurant’s manager, Sebastian Gutierrez, on several occasions that Gonzalez was not doing things the proper way. Her testimony showed that at some time prior to this incident, the cabinets were separated, allowing for increased visibility. However, Gutierrez did not like them separated because they would use too much space. He advised the workers not to separate them. Robles testified that “we used to tell him that we had problems when we would put them all together because … the door latches … were so close together we would pinch our fingers and we would separate them.” At a different fast-food restaurant she had seen cabinets which were clear plastic, allowing a person to see through them. If the KFC where she worked had that type of cabinet, this would have allowed her to see Gonzalez approaching with the boiling water. According to her, the restaurant had enough room to place a burner or small stove near the mashed-potato mixer.

*2 Fernando Gonzalez testified that he had filled the pitcher to the top because he was taking a shortcut. In other words, he would not have to make so many trips from the stove to the mashed-potato mixer. According to Gonzalez, Sebastian Gutierrez, the manager of the KFC, had seen him carry a full pitcher of hot water previous to this incident. Gonzalez’s testimony showed that if they were busy, Gutierrez would sometimes not say anything about him carrying a pitcher filled to the top. Sometimes Gutierrez advised him not to fill it to the top. The people at KFC trained Gonzalez to fill the pitcher only to the third line. He had never spilled water on anyone before this incident.

Gutierrez was not present when the incident occurred. Prior to Robles’ injury, Gutierrez could not remember any employees complaining to him about the placement of the cabinets, and no one had advised him that they thought that these cabinets posed a dangerous condition. No one had advised him that they thought that the cabinets should have plastic or glass doors so a person could see through them. Prior to Robles’ injury, he was not aware of anyone else in his restaurant that had received an injury while walking around one of the cabinets and running into someone. In the past, he had seen employees carrying pitchers filled completely to the top with water. When he saw this, he advised them, “ ‘You can’t do that because it’s dangerous.’ ” He had never advised any of his employees that they could fill a pitcher all the way to the top. At no time did he see anyone with a pitcher filled to the top and ignore it or indicate through silence his approval of that practice. A couple of times he saw Gonzalez carry a pitcher completely full and corrected him. Prior to this incident, he did not see the placement of the cabinets as a dangerous condition. He always advised people when they carried hot liquids or a hot pan of biscuits to “watch around corners.”

On cross-examination, plaintiff’s counsel asked him about placing a towel on top of a pitcher to keep water from sloshing out of it. He responded that a towel with hot water can still burn a person; however, he agreed that a towel would keep some of the water off of a person. Gutierrez said that he could move the cabinets, but “they would cost a big inconvenience.” Plaintiff’s counsel also asked him about locating a small hot plate or a small stove close to where the mashed-potato mixer was located. Gutierrez responded that this was possible if the restaurant had a gas line in that area.

I.

Prior to the time that the first witness testified, KFC’s counsel informed the trial court that KFC did not have workers’ compensation insurance. Section 406.033(a) & (a)(3) of the Texas Labor Code provides that in a suit “against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment,” the employer cannot lodge the defense that the injury or death was caused by the negligence of a fellow employee. Tex. Labor Code Ann. § 406.033(a) & (a)(3) (Vernon 1996). Section 406.033(d) provides that in a suit described by Subsection (a) “against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.” Tex. Labor Code Ann. § 406.033(d) (Vernon 1996).

*3 In the instant case, Robles did not request a special question regarding whether her fellow employee, Fernando Gonzalez, was acting in the course and scope of his employment when the incident occurred, or whether he was negligent. She did not request an instruction to the effect that the negligence of an employee acting in the course and scope of employment is imputed to the employer. Further, she made no objections to the absence of this type of question or instruction in the charge. Having failed to request any issues on the theory of respondeat superior or agency, Robles waived this theory of recovery. Hooper v. Torres, 790 S.W.2d 757, 761 (Tex.App.—El Paso 1990, writ denied). Therefore the negligence of the fellow employee Gonzalez may not be imputed to the employer, KFC.

In this case, Question No. 1 asked, “Did the negligence, if any, of TEM–KIL CORPORATION d/b/a KENTUCKY FRIED CHICKEN proximately cause the occurrence in question?” The jury answered “No.”

II.

By two points of error, Robles contends that the evidence established as a matter of law, or alternatively, by the great weight and preponderance, that KFC was negligent.

If an appellant is attacking the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, he must show that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). In reviewing a “matter of law” challenge, we use a two-prong test. We first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Holley, 629 S.W.2d at 696. If no evidence exists to support the finding, the reviewing court will examine the entire record to determine if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Holley, 629 S.W.2d at 696–97. If the evidence conclusively establishes the contrary proposition, the point of error will be sustained. Meyerland Community Improvement Ass’n v. Temple, 700 S.W.2d 263, 267 (Tex.App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).

In reviewing a factual sufficiency point, a court of appeals must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). A court may overturn findings only if they are so against the great weight and preponderance of the evidence that they are clearly wrong and unjust. Ortiz, 917 S.W.2d at 772; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), the court said that a court of appeals must also “clearly state why the jury’s finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust.” Pool, 715 S.W.2d at 635.

*4 At common law, a negligence cause of action consists of: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).

In her appellate brief, Robles stated her grounds for negligence against KFC. She maintained that Fernando Gonzalez overfilled the pitcher with the hot water, that the pitcher had no top, that see-through cabinets would have avoided the collision, that separating the cabinets would have avoided the collision, and that KFC knew about these conditions, plus prior collisions, but it did nothing about these problems.

Robles’ evidence showed that KFC’s manager, Sebastian Gutierrez, knew that Gonzalez was filling pitchers, which did not have covers on them, all the way to the top and that Gutierrez, at least on some occasions, tolerated this practice. She and Gonzalez would not have collided if KFC had separated the cabinets, or if it had used see-through cabinets in this particular restaurant. KFC could have placed a burner or stove closer to the mashed-potato mixer.

KFC’s evidence showed that prior to the incident, Gutierrez did not know of any complaints concerning the placement of the cabinets. No one had advised him that the cabinets posed a danger, or that the restaurant should have see-through cabinets. He knew of no one who had received an injury while walking around the cabinets and bumping into someone. He did not tolerate his employees carrying pitchers filled to the top. If he saw them do that, he advised them that it was dangerous. Gutierrez had corrected Gonzalez after he saw him carrying a pitcher filled to the top. He warned his employees that when carrying hot liquids or hot biscuits to take care when going around corners. He did not see the placement of the cabinets as a dangerous condition. If he moved them, this would create an inconvenience. He could not place a burner or stove closer to the mashed-potato mixer because the restaurant did not have a gas line in that area.

After weighing and considering all of the evidence, we hold that the evidence did not conclusively establish that KFC was negligent in causing Robles’ injury. The evidence also does not show that the jury’s answer to Question No. 1 was so against the great weight and preponderance of the evidence that it was clearly wrong and unjust. We overrule the points of error.

We AFFIRM the trial court’s judgment.