Less than four months after its controversial “tired trucker” ruling absolved an employer who allegedly required its drivers to work excessive hours, the Texas Supreme Court is facing another egregious workplace case. This one involves a chaotic construction site crane collapse that crushed Tyler Lee’s leg.
Last month the Supreme Court kicked off its new term with a question very much like the one posed in MoVac Service Co. v. Escobedo: whether the Texas Workers’ Compensation Act’s intentional-tort exception allows recovery of common-law damages.
The TWC was created by the legislature in 1913 to provide prompt pay of injured workers’ medical bills and lost wages without the uncertainty of providing liability under common-law theories. In 1916, the Supreme Court created an exception, declaring that a worker has a right under the Texas Constitution to seek redress for an injury caused by the intentional tort of another.
Lee filed a lawsuit under that exception, and a Brazoria County jury that heard about the 2013 crane injury and resulting amputation of Lee’s leg awarded him $43.5 million in actual and exemplary damages.
The 14th Court of Appeals initially reversed and rendered judgment for Berkel & Co. Contractors, finding that the workers’ compensation law precluded Lee from recovering common law damages. On rehearing the case in 2018, the appeals court said Lee should be allowed to present his argument that he was in a localized area that Berkel’s supervisor knew would result in injury.
The new case offers the court an opportunity to clarify the “particular victim” requirement discussed in the trucker case, said Russell Post, who represents Lee.
In Mo-Vac, decided last June,the court said that for the intentional-tort exception to apply in workers comp cases, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks.
“We come to the court today not to bury Mo-Vac, but to praise it,” Post told the justices last month. He said Mo-Vac supports a lower court ruling that threw out the verdict won by Lee but remanded his lawsuit for a new trial in the interest of justice.
Mo-Vac presented the court with evidence that an oilfield-trucking outfit forced drivers to work excessive hours and told them to falsify driving logs. Egregious or not, however, the court said Mo-Vac’s actions were not “substantially certain” to result in the death of Fabian Escobedo, who rolled his rig in May 2012 after averaging 17 hours of daily driving in the week before the accident.
Post, a Houston partner at Beck Redden, said because the trial in Lee’s case occurred before the Mo-Vac ruling, testimony was focused on whether Lee was in a danger zone, or localized area, that could trigger the intentional injury exception.
“When the Supreme Court changes the rules of the game after the trial, the plaintiff is entitled as basic due process to a fair opportunity to meet the burden of proof,” said Post.
Lee was the superintendent for the general contractor and Berkel was one of the subcontractors. Lee suffered his injury as he watched while Berkel’s crew was attempting to complete one of its pilings and an auger attached to the crane became stuck.
A retrial would present testimony, Post said, that Berkel’s supervisor would have been substantially certain to know that Lee was directly in the path of the crane’s leads as he shouted commands to the crane operator to move the huge machine back and forth to try and release the auger.
Berkel’s lawyer, Thomas C. Wright, disagreed that Lee would be able to make a case that the supervisor knew Lee would be injured.
“No one knew which way these leads were going to fall nor could that ever have been predicted,” said Wright of Houston’s Wright Close & Barger. “He was not trying to break the crane, he was trying to get the auger unstuck. He was not substantially certain the crane would collapse.”
The arguments, presented on Zoom, included only six justices. Two justices – Brett Busby and Debra Lehrmann — did not partiipate and the retirement of Paul Green left a vacancy on the court.
Watch the argument video in Berkel v. Lee (18-0309).