BEAUMONT – For the better part of a decade, a slip and fall case has bounced between the Texas Supreme Court and Judge Donald Floyd’s 172nd District Court, rebounding favorably for a Port Arthur defendant company each time.
On June 30 the match was finally called, as a majority of high court justices reversed a $1.9 million judgment and entered a take nothing judgment in United Scaffolding’s favor.
Judge Floyd gave plaintiff James Levine two trials to achieve the favorable verdict.
Levine was injured on Dec. 26, 2005 while working as a pipefitter for Valero Energy working at the company’s Port Arthur refinery.
He was working more than fifteen feet above the ground on a scaffold constructed by United when he slipped on a piece of plywood that had not been nailed down, causing him to fall up to his arms through a hole.
In December 2008, a Jefferson County jury found that Levine was 49 percent responsible for stepping through the hole, but still awarded the man $178,000 in future medical expenses for his injuries.
Levine, who strained his neck in the fall, was awarded no damages for his alleged past and future mental anguish, impairment or pain. Nor did the jury award any damages to his wife, Lisa, who sought money for loss of consortium.
Levine and his attorneys moved for a new trial, which Floyd granted, stating only that it was “in the interests of justice and fairness.”
The order was appealed all the way to the Texas Supreme Court, where justices held that granting a new trial “in the interests of justice and fairness” is not a “sufficiently specific reason.”
Floyd amended his order and United once against successfully appealed the revised order all the way to the Texas Supreme Court, with justices directing Floyd to “resolve all ambiguity.”
In February 2014, the case was tried for a second time, with jurors allocating 100 percent of the blame on United and awarding Levine nearly $2 million in damages.
Floyd shot down United’s motion for a new trial and the case was once again appealed all the way to the state’s highest court, where justices found Levine failed to request or secure findings to support his premises liability claim.
A dissenting opinion was submitted by Justice Jeffrey Boyd, who argued Levine is entitled to recover on the jury’s finding that United negligently caused his injuries.
“As a result of this so-called ‘slip-and-fall,’ Levine strained his neck. A jury awarded him nearly $2 million. That’s a lot of money for a neck strain,” writes Boyd.
“But the defendant United Scaffolding (USI) does not merely complain about the amount of damages. Instead, USI argues that Levine cannot recover at all because the trial court asked the jury an ordinary-negligence question instead of a premises-liability question.
“Ironically, USI itself proposed the ordinary-negligence question and never withdrew that proposal. Nevertheless, the Court agrees with USI, reverses, and renders a take-nothing judgment. I respectfully dissent.”
Supreme Court case No. 15-0921