Error before updating scaffolding

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James Levine was injured while working at his employer's refinery when he fell through the platform of a scaffold. (USI)—does not merely complain about the amount of damages. Whether USI owed Levine a premises liability duty “must be determined by examining whether USI maintained a right to control the scaffold that allegedly caused Levine's injury.” Id. More specifically, premises liability applies only if USI had the right to control the premises both where and when Levine's accident occurred.

According to Levine, a piece of plywood that should have been nailed into the platform but was not slid out from under him, causing him to fall through the resulting hole. 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.

By doing so, it misstates and misapplies our well-established standard of review.

Although the Court apparently rejects the idea that the evidence must conclusively establish control, it ultimately ignores the evidentiary-review standard altogether.

Premises-liability duties “generally run[ ] with the ownership or control of the property” and do not apply to a contractor who does not “own or control the premises at the time of [the] accident.” Occidental, 478 S. Because “the essential element” of a premises-liability claim is the defendant's control of the premises “on the date in question,” premises liability does not apply to a contractor who does not control the premises when the accident occurs. The Court agrees, holding USI owed only premises-liability duties because “Levine's allegations and the evidence establish that the nature of Levine's claim relies on USI's having retained the right to control” the scaffold when the accident occurred. But the Court does not explain what it means when it says the evidence “establishes” control.

USI contends that the ordinary-negligence question the jury answered at trial was erroneous and the trial court should not have submitted it because USI controlled the scaffold when Levine's injury occurred.

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Under our clear and consistent precedent, we may conclude that the ordinary-negligence question was erroneous and the trial court should not have submitted it to the jury only if it has “no basis in the law or the evidence.” Romero v.

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USI does not contend that an ordinary-negligence question has “no basis in the law,” so it must instead establish that “no evidence” supported its submission to the jury.

61.1(a) (stating that this Court may not reverse a judgment unless the complained-of error “probably caused the rendition of an improper judgment”).

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