In 4Front Engineered Solutions, Inc. v. Rosales, a Texas appellate court considered a case in which a subcontractor sued a property owner after suffering injuries while working with a contractor on the property. The safety manager of a distribution warehouse owned by 4Front contracted with an electrician to repair a sign above the entrance. The electrician had previously done work for 4Front without a problem, using equipment borrowed from 4Front. This time, he subcontracted with the plaintiff, also an electrician, to help him.
The electrician would later testify that when the safety manager asked him to repair the sign, he’d asked to use a scissors lift he’d used on prior occasions, and the safety manager agreed. However, when the electrician and the plaintiff arrived, the safety manager said that it wasn’t available and that he could use a stand-up forklift to do the job. The electrician answered that he could operate the forklift, but slowly.
The electrician and the plaintiff worked for three to four hours one day, and then they came back after a two-day absence to finish the work. The electrician operated the forklift with the plaintiff standing in a man basket attached to the forklift. While the plaintiff was up by the sign on the second morning, the electrician drove the lift off the edge of the sidewalk, and the lift toppled. The plaintiff fell and was badly hurt.
The plaintiff sued the property owner and electrician for premises liability, gross negligence, negligence per se, and negligence. The jury determined that the forklift had been negligently entrusted to the electrician and that there was a negligent failure to warn about a dangerous condition on the property. The jury assigned 75% responsibility to the property owner, 15% to the electrician, and 10% to the plaintiff. However, it also found 4Front was grossly negligent. The total damages were determined to be about $8 million, and punitive damages based on gross negligence were $5 million. The appellate court reversed the finding of gross negligence, struck the punitive damages, and affirmed the rest of the judgment.
4Front asked the Texas Supreme Court to review the case. It argued that it should not be liable on the negligent entrustment and premises liability claims. It argued that it didn’t owe a duty to the plaintiff because it didn’t control how the electrician operated the forklift and that negligent entrustment didn’t apply to industrial equipment. It argued there was no evidence to show that it knew or should have known that the electrician was unlicensed, reckless, or incompetent.
The appellate court reasoned that there was no affirmative evidence 4Front knew of the electrician’s incompetence or recklessness. The plaintiff argued that 4Front should have known by asking about the electrician’s qualifications. However, the court found a difference between someone who is incompetent and someone who is negligent.
A negligent entrustment claim requires a plaintiff to prove more than negligence. Instead, the plaintiff needed to show that the electrician was incompetent or would operate it recklessly and that the defendant knew or should have known this. There was no evidence in this case that the electrician had previously caused an accident or that he’d previously operated other equipment for 4Front incompetently. To prove a failure to screen an employee, the plaintiff had to show that questions 4Front didn’t ask would have revealed the risk. The electrician wasn’t formally trained or licensed, but this didn’t show he was incompetent or reckless.
Similarly, it found that the plaintiff presented no evidence of a dangerous and not open and obvious condition of the premises. The judgment against 4Front was reversed. The case was sent back to the lower court so that the percentages of responsibility could be reapportioned.
If you are hurt while working as a subcontractor on somebody’s property, the experienced San Antonio work accident and premises liability attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.
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