Court of Appeals of Texas, Houston (1st Dist.).
ADVANCE TIRE AND WHEELS, LLC, Appellant
Abrhim ENSHIKAR, Appellee
Opinion issued June 13, 2017
*478 On Appeal from the 190th District Court, Harris County, Texas, Trial Court Case No. 2012-15287
Attorneys & Firms
Hiren P. Patel, PATEL ERVIN PLLC, 1113 Vine Street, Suite 230, Houston, TX 77002, for Appellant.
C West Holcombe Blvd, #482, Houston, TX 77025, for Appellee.
Panel consists of Justices Huddle.
Michael Massengale, Justice
Abrhim Enshikar sued his employer, Advance Tire and Wheels, LLC, for negligence arising out of injuries he suffered due to the explosion of an over-sized tire that he inflated without the benefit of any safety equipment. After a bench trial, the court entered judgment in Enshikar’s favor. Advance Tire appeals, challenging the legal and factual sufficiency of the evidence to support the judgment. We affirm.
Abrhim Enshikar was a tire repairman. He learned and worked at his trade for a few years in his native Morocco. After moving to Texas, he worked at a tire-repair shop for approximately 18 months. Then he took a new job at Advance Tire and Wheels, LLC, where he was employed for about eight months prior to the accident that gave rise to this litigation.
Enshikar was inflating a tire for use on a pickup truck with a lifted suspension. The tire was larger than those used on ordinary passenger vehicles, but it was not a “heavy-duty” tire like those used on commercial vehicles, such as semi-trailer trucks. As compared to a heavy-duty commercial tire, this tire was taller, but it required less air pressure and weighed much less.
Enshikar struggled to inflate the tire alone, so his supervisor, Jawad Abualhalaweh, and a coworker came to his aid. Two held the tire upright while the third put air in it. Enshikar said that he and Abualhalaweh held the tire while his coworker put air in it. Abualhalaweh said that he started *479 to put air in the tire. While they were inflating the tire, Abualhalaweh left to answer his mobile telephone. Enshikar and his coworker continued inflating the tire. Then it exploded.
The tire explosion injured Enshikar’s right hand, exposing the bone in his thumb. Both employees were hospitalized, and Enshikar spent three weeks in the hospital, during which time he had multiple surgeries on his right hand to save the thumb.
Advance Tire was a nonsubscriber to the Texas Workers Compensation Act at the time of the accident. Enshikar filed this suit, alleging that Advance Tire negligently caused his injuries. Advance Tire denied liability. In a bench trial, the trial court heard conflicting testimony about whether:
• the tire was in poor condition when the customer brought it in for service;
• Enshikar and Abualhalaweh discussed the condition of the tire before inflating it;
• Advance Tire had a practice of trying to service tires regardless of their condition; and
• Advance Tire should have had a cage for securing tires so that its employees would not have to hold them during inflation.
However, it was undisputed that that the sole safety precautions that Advance Tire used when inflating tires were to ensure that employees locked the tire into the inflator and that they kept their distance. It likewise was undisputed that the tire that exploded was too large to fit the inflator, and therefore it was inflated while in a freestanding position on the floor.
The trial court entered a judgment in Enshikar’s favor, and it issued findings of fact and conclusions of law. Among other things, it found that Advance Tire’s negligence included “negligent supervision, negligently leaving the repair project before it was completed, negligent inspection of the tire and a failure to provide a safe workplace.” Enshikar was awarded $441,496.90 for past pain and suffering, medical expenses, and physical impairment and disfigurement, plus pre- and post-judgment interest. Advance Tire appealed.
Advance Tire challenges the legal and factual sufficiency of the evidence supporting Enshikar’s negligence claim. A negligence cause of action has three elements: a legal duty, a breach of that duty, and damages proximately caused by the breach. See, e.g., W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Advance Tire contends that under the circumstances of this case it owed Enshikar no duty, given his own expertise with repairing tires, and that the proof also is insufficient to show that it breached its duty to provide a safe workplace or that such a breach caused his injuries.
In a legal-sufficiency review, the court determines whether reasonable and fair-minded people could arrive at the factfinder’s conclusion, after considering all evidence that supports the verdict, and disregarding contrary evidence unless a reasonable factfinder could not. Id. at 822.
*480 In a factual-sufficiency review, we examine all of the evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. id.
In a bench trial, the trial court acts as factfinder, and we accord its findings of fact the same weight as a jury’s verdict. Mohammed, 464 S.W.3d at 744–45.
Advance Tire concedes that employers generally owe their employees a duty to provide a safe workplace. However, it argues that this general duty is insufficient to support Enshikar’s claim, and that he must show that a more specific duty was owed to warn, train, supervise, or further equip him under the circumstances of this particular case. Advance Tire contends that it owed no such duty because of Enshikar’s own expertise concerning tires and his appreciation of the risks entailed in his employment.
Whether a duty exists in a negligence case is a question of law for the court to decide from the facts surrounding the occurrence in question. In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994).
Just as landowners owe a premises-liability duty to invitees on their premises, employers have a duty to provide their employees with a reasonably safe workplace. E.g., Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008).
Advance Tire argues that Enshikar’s expertise or knowledge about repairing tires negated its premises-liability duty to warn him about a danger of which he already was aware, but that argument does not foreclose an employer’s duty to provide necessary instrumentalities to safely perform the work. To address that duty, Advance Tire relies on *481 Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 589 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).
Ultimately, Advance Tire’s argument about Enshikar’s expertise may be reduced to the contention it owed him no duty because he recognized the risk posed by the task and he could have refused to perform had he felt it was too dangerous. See id. at 214–16, 216 n.23. Advance Tire provides no other argument or authorities to explain why the premises-liability defense that a premises owner owes no premises-liability duty with respect to open and obvious conditions (even when encountered by an employee performing a task assigned by his employer) should operate to bar a necessary-instrumentalities claim when the employee has actual knowledge of the danger.
A premises owner generally is held responsible for making property safe for invitees or warning them about concealed, unreasonably dangerous conditions of which the premises owner is, or reasonably should be, aware but the invitee is not. See, e.g., Id.
In contrast, the employer’s duty to provide necessary instrumentalities is based on a different set of assumptions. “[W]hen the servant enters the employment *482 of the master, he has the right to rely upon the assumption that the machinery, tools, and appliances with which he is called upon to work are reasonably safe, and that the business is conducted in a reasonably safe manner.” Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975).
When deciding if “there is a basis for imposing a duty, we consider various factors, ‘including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.’ ” Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). As previously noted, the great weight of authority acknowledges an employer’s nondelegable duty to provide the equipment necessary for an employee to safely perform his work. An exception for an employee’s “actual knowledge of the danger” would be inconsistent with the law’s characterization of the employer’s duty as “nondelegable.”
Moreover, shifting to employees the burden of guarding against such injuries would be inconstant with workers’ compensation policies as established by the Labor Code. Texas allows employers to opt out of the statutory workers’ compensation program, but the consequence of that choice is the authorization of negligence suits by employees against their nonsubscribing employers. Kroger Co. v. Keng, 23 S.W.3d 347, 350–52 (Tex. 2000) (nonsubscribing employers may not invoke statutory comparative responsibility defense, which implies contributory negligence and the injured person’s “failure to use ordinary care in regard to his or her own safety”). To recognize an exception to the employer’s duty to provide a safe workplace with necessary equipment to perform job duties safely would rebalance the allocation of risks imposed by the Labor Code in the form of disallowing nonsubscribers a defense that an employee assumed a risk of his own injury.
Enshikar alleged that Advance Tire negligently required him to engage in a dangerous activity by directing him to service a tire that could not be inflated safely due to the absence of appropriate safety equipment. We conclude that this allegation *483 properly invoked Advance Tire’s nondelegable legal duty as an employer to provide a safe workplace, particularly by providing reasonably safe equipment necessary for the performance of the job.
II. Breach and causation
Advance Tire contends that the proof introduced at trial was legally and factually insufficient to show that it breached its duty to provide a safe workplace or that any breach proximately caused Enshikar’s injuries. We disagree.
There was legally sufficient proof that Advance Tire breached its duty to provide a safe workplace. Enshikar testified that as an employee, his supervisor determined his assignments. Advance Tire protests that there was no evidence that similarly situated tire repair shops used tire cages, and that its supervisor testified they only would be necessary for commercial-grade tires. But the supervisor also agreed that that safety mechanisms were in place to prevent workplace injuries at Advance Tire: keeping hands away from tires, maintaining a safe distance, and using a locking mechanism on the machine. Yet none of those preventative measures were possible for the job assigned to Enshikar, in which he had to keep his hand on the tire, he could not maintain a safe distance, and the tire was too large to be locked into the machine. On this record, a reasonable factfinder therefore could conclude that Advance Tire directed Enshikar to inflate a tire without providing reasonably safe equipment necessary for the performance of the job. Thus, there was some admissible evidence, and hence legally sufficient proof, that Advance Tire breached its duty to provide Enshikar with a safe workplace. See Elwood, 197 S.W.3d at 794–95)).
There was contrary evidence. Abualhalaweh said that he told Enshikar not to work on the tire. But Enshikar contradicted Abualhalaweh, and it was for the trial court to resolve this conflict in the testimony. See Cain, 709 S.W.2d at 176.
There likewise was legally and factually sufficient proof that Advance Tire’s breach of this duty proximately caused Enshikar’s injuries. An act or omission is a proximate cause if it is a cause in fact of the harm and the injury was foreseeable. Id. Accepting Enshikar’s version of events, as the trial court reasonably could have, his supervisor had him inflate a tire without reasonably safe equipment necessary *484 for the performance of the job. It was undisputed that no safeguards were in place to protect Enshikar from the possibility of a tire explosion. Accordingly, there was legally and factually sufficient proof that requiring Enshikar to inflate a tire without providing reasonably safe equipment necessary for the performance of the job was a substantial factor in causing Enshikar’s injuries, that but for this omission by Advance Tire, Enshikar would not have been exposed to the tire’s explosion and his resulting injuries would not have occurred, and that a person of ordinary intelligence should have appreciated that inflating a tire too large to secure in the inflator posed the very hazard that injured Enshikar. On this record, the trial court sitting as factfinder reasonably could have concluded that there was sufficient proof that Advance Tire’s breach of its duty to provide Enshikar with a safe workplace proximately caused the injuries he suffered when the tire exploded, and that conclusion was not contrary to the overwhelming weight of the evidence.
We hold that Advance Tire owed Enshikar a duty to provide a safe workplace—including a duty to provide reasonably safe equipment necessary for the performance of the job—and that the proof at trial was legally and factually sufficient to support the trial court’s judgment that Advance Tire breached this duty and that this breach proximately caused Enshikar’s injuries. We therefore affirm the judgment.