Opinion
No. 14-08-00333-CV
Opinion filed August 27, 2009.
On Appeal from the 260th District Court Orange County, Texas, Trial Court Cause No. D-060189-C.
Panel consists of Justices FROST, BROWN, and BOYCE.
MEMORANDUM OPINION
Appellant Harold Randall Pues was injured while assisting in the felling of a tree on the property of appellee Veterans of Foreign Wars Post 8246 in Vidor. Following a jury verdict favorable to Pues, the trial court entered a judgment notwithstanding the verdict in favor of the VFW. On appeal, Pues contends the trial court erred in granting the JNOV because the evidence is legally sufficient to support the jury's findings in his favor. The VFW responds that the trial court did not err in granting the JNOV and raises six cross-points. We affirm the trial court's judgment and so do not reach the VFW's cross-points.
I
Although they were not VFW members, Pues and his friend Alfred "Rusty" Revia, Jr. had frequented the VFW post for years and occasionally volunteered to perform odd jobs for the VFW, including working at barbeques and fish fries, cutting grass, and doing plumbing work. On one occasion, a tree limb knocked a hole in a cook shack on the VFW's property, and Pues and Revia volunteered to cut down and remove the tree. Pues was injured when he was struck by a falling limb as he and Revia attempted to fell the tree. In April 2006, Pues sued the VFW, alleging negligence, negligent conduct of activity on the premises, and premises defect. The VFW answered and designated Revia as a responsible third party.
The case proceeded to trial and a jury found that the VFW exercised or retained control of the tree felling, Pues and Revia were employees of the VFW in connection with the tree felling, and that the VFW, Pues, and Revia were each negligent. The jury apportioned 50 percent of the negligence to the VFW, 25 percent to Pues, and 25 percent to Revia. The jury also awarded Pues damages totaling $158,413.22. On February 28, 2008, the trial court granted the VFW's motion for JNOV and ordered that Pues take nothing. The trial court's judgment recited that "[i]t appears to the court that there is insufficient evidence as a matter of law to support the verdict of the jury and that a directed verdict in favor of [the VFW] would have been proper and that judgment notwithstanding the verdict should be rendered in favor of [the VFW]." This appeal followed.
II
In two issues, Pues contends that the trial court erred in granting the JNOV in favor of the VFW and that the evidence is legally sufficient to support the jury's findings in Pues' favor. The VFW responds that the evidence is legally insufficient to show that the VFW controlled the tree felling or to show that an employer-employee relationship existed between the VFW and Pues and Revia. The VFW also contends that the evidence shows as a matter of law that Pues and Revia were independent contractors. Further, the VFW contends that the evidence is legally insufficient to sustain the jury's findings under alternative theories of recovery, including inherently dangerous activity, nondelegable duty, premises defect, and inexperience, and that the evidence is legally insufficient to show negligence or proximate cause.
A
A trial court may disregard a jury's verdict and render a judgment notwithstanding the verdict if no evidence supports one or more of the jury's findings or if a directed verdict would have been proper. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). When examining a legal-sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. Id.
B
Pues first contends that the evidence is legally sufficient to support the jury's answers to Questions 1, 4, and 5. Question 1 asked the jury: "Did the [VFW] exercise or retain some control over the manner in which the occurrence in question was performed, other than the right to order the work to start or stop or to inspect progress or receive reports?" Question 4 asked whether, on the occurrence in question, Pues was acting as an employee of the VFW. Question 5 asked the same of Revia. The jury answered all three questions affirmatively.
Pues asserts that the evidence shows that both Pues and Revia testified that Nelson Reeves of the VFW was supervising their work on the tree and telling them how to place the rope and how to cut the tree, and that the method and procedure to cut the tree was specifically discussed and agreed to by Pues and Revia. To support the jury's findings that Pues and Revia were employees, Pues asserts that this evidence shows that the VFW had the right to and did control the details of the work. Additionally, Pues argues that, to prove that he was an employee, he was not required to show the existence of a contract for hire or that the VFW paid him for his work. Instead, Pues contends, there need only be an express or implied understanding that the employer has the right to direct the details of the work and not merely the result to be accomplished, citing Doe v. Boys Club of Greater Dallas, Inc., 868 S.W.2d 942, 949-50 (Tex. App.-Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex. 1995).
Pues also contends the evidence is legally sufficient to support the jury's finding in Question 2 that the VFW was negligent because it showed that the VFW failed to adequately supervise Pues and Revia and failed to provide Pues with necessary machinery, equipment, and tools. See LMC Complete Automotive, Inc. v. Burke, 229 S.W.3d 469, 476 (Tex. App.-Houston [1st Dist.] 2007, pet. denied). Specifically, Pues argues that the evidence shows that both Pues and Revia testified that with a block and tackle, crane, jig lift, or cherry picker, the tree could have been felled with "one cut." Further, Pues asserts that he testified that the VFW caused or contributed to the accident because it did not have more equipment for him to work with, including ropes and ladders. Pues also contends the evidence shows that the VFW failed to properly supervise Pues and Revia because Pues was too close to the tree and could not move out of the way when the top of the tree came down.
C
At trial, Pues testified that he lived in Vidor and worked as a heavy-equipment operator for contractors at various plants around Orange. He started going to the VFW post even though he was not a veteran because it was "about the only place around to go and shoot pool and play dominoes and dance." He would usually go there with his friend, Revia. At the VFW, Pues and Revia would socialize with Nelson Reeves and Ed Stunkard, both of whom were members of the VFW. At some point, at the request of Reeves or Stunkard, Pues and Revia began volunteering to do odd jobs such as cooking at fish fries, cutting grass, or plumbing.
At the time of trial, Reeves was deceased. Stunkard did not testify.
Concerning the incident that led to this lawsuit, Pues explained that a storm had blown a tree over and a limb had knocked a hole in the VFW's cook shack. Reeves and Stunkard asked Pues and Revia "a few times" if they would cut down the tree so that the shack's roof could be repaired, and they agreed. Although he had felled trees before, Pues did not consider himself an expert tree cutter. The VFW arranged to open the gates on the property, and when Pues and Revia arrived, Reeves was there. Pues brought a chain saw with him, but expected the VFW to have "some rope and a ladder and things like that." Pues had a rope in the back of his truck, and even though he did not bring it specifically for the purpose of felling the tree, Reeves "said it would be sufficient," so they used it.
Pues testified that Reeves, Stunkard, and some others came to watch, but although some came and went, Reeves stayed there the entire time.
Pues explained that there was a "high line" or power line that ran between the building and the tree, and because the VFW did not want anything falling down on the high line, Reeves told them to "cut one side of the tree first, all the way up on one side and then top it out and bring it down one B B one piece at a time." Pues stated that the VFW also wanted some of the wood cut up in a certain size to use in their barbeque pit, and the rest to be put in a brush pile.
Pues testified that Reeves was a "know-it-all" and that he was "telling [him] how to do [his] job." When asked if he felt like Reeves exercised control over how he did the work, Pues answered, "That's correct."
Pues and Revia used Pues's rope to lower the limbs to the ground as they were cut. After Pues and Revia cut the limbs from one side of the tree, they proceeded to cut the top of the tree. Revia was in the tree and Pues was standing on the ground below the tree holding the rope, when Revia cut the top of the tree and it fell on Pues and injured him. Pues was not on a ladder, he stated, because "[t]hey didn't have a ladder." When asked if he thought the rope was long enough, Pues testified, "at the time, yes B B it was long enough."
Pues also testified concerning the treatment for his injuries, his damages, and his lost wages. When asked whether he was an employee of the VFW, Pues testified that he understood being an employee to mean that "you get paid."
During the presentation of the defense, the VFW presented portions of Pues's earlier deposition testimony. In his deposition, Pues explained that the reason he and Revia were removing the limbs from one side of the tree — specifically, the side opposite the building — was so that when the tree came down the branches would not catch the electrical line running to the building and bring the line down with the tree. When the top of the tree came down, Pues stated that he was four or five feet from the tree because the rope was not long enough for him to stand farther away. However, he testified that, at the time, he did not think they needed a longer rope, and there was no discussion beforehand about whether the rope was long enough. When asked if there was anything preventing him from getting a longer rope when he saw that he had to stand within four or five feet of the trunk, Pues stated that he did not know the rope was too short. But he admitted that he knew that he could stand no more than four or five feet away from the tree because of the length of the rope. Further, even when Revia was cutting off the top of the tree and Pues was standing there, Pues still believed he had enough rope.
When asked what the VFW did or did not do that caused or contributed to the accident, Pues stated that the VFW "could have had a little more equipment there for us to work with" such as ropes and ladders. Further, if the VFW had a cherry picker, Pues could have handled it "all in one lick." However, Pues also acknowledged that he had cut trees in the same way — by trimming the limbs, cutting the top off, and removing the trunk in sections — "many times." He also had felled trees this way with Revia on a few occasions. Pues agreed that he was not cutting down the tree on the VFW property differently than he had done it on previous occasions. He also admitted that there was no reason he could not have declined the request to cut down the tree. Further, Pues admitted that if he had it to do over again, there was nothing he would have done differently in cutting the tree down. He testified that he would not have stood farther away from the tree or gotten a longer rope.
Revia's testimony was presented to the jury by deposition. Revia testified that he was a construction worker and that he, like Pues, started going to the VFW post to sit in the air conditioning, drink beer, play dominoes, shoot pool, and socialize. He and Pues, whom he had known for about twenty years, would go there two or three times a week. Revia was neither a veteran nor a member of the VFW.
Revia was incarcerated at the time of the deposition, and apparently did not appear at trial for this reason.
Revia explained that from time to time Reeves and Stunkard would ask them to do "small stuff" for the VFW like plumbing work and mowing the grass. Reeves and Stunkard would tell them how to do these things. When asked who controlled the specifics of the mowing and plumbing work, Revia testified that "Mr. Nelson [Reeves] would tell me what he wanted done and point it out, and I'd tell him what I needed." He agreed that Reeves was "hands-on" and a "know-it-all." Revia also volunteered at fish fries and barbeques, and the VFW, usually through Reeves, would provide the food and tell him what to cook. On cross-examination, Revia agreed that he was free to use his own means and methods when performing the plumbing and mowing work, and he cooked according to what the VFW planned to serve.
Revia explained that some time after the tree limb had fallen through the roof of the cook shack, they were all sitting in the VFW post at the domino table when Reeves and Stunkard started talking about removing the tree and fixing the shack's roof. They said the VFW could not afford a tree service and carpenters, so Revia told them he could do it for them. They had three or four conversations about the tree, during which the VFW told him that they wanted the wood cut into lengths for firewood and stacked by the barbeque pit. Concerning avoiding the high line, they "all stood around the tree and talked about how we were going to have to do it." Revia agreed that the way he did it "was the way they told [him] to do it." He also testified that certain equipment, such as block and tackle, cranes, and jig lifts can be used to cut down trees more easily. Revia told Reeves that if they had some heavy equipment they could "just snatch onto the tree and cut it one time and take the whole tree out." But in response, Reeves stated that the VFW could not afford such equipment.
Revia testified that the VFW did not provide the chain saw or rope because it did not have them, and that Reeves told them to use the rope they had in the back of the truck. Because the VFW had no ladder, Revia used his own climbing spikes and safety harness to climb up the tree. Revia explained that he cut the limbs from one side of the tree because the fence, the building, and the power line, which ran through the tree limbs to the building, were in close proximity. He agreed that it "had to be done that way." When he cut the top of the tree, it was supposed to fall over and be let down with the rope Pues was holding, but instead it jerked the rope out of Pues's hand and fell to the ground, injuring Pues.
On cross-examination, Revia explained that when he volunteered to fell the tree, he was also speaking for Pues, and that felling the tree was "a verbal agreement between all of us." Revia acknowledged that Stunkard asked him several times when he and Pues would fell the tree. Then, on one weekend when he and Pues were not working and "didn't have anything to do," they went to the VFW in Pues's truck. Reeves and Stunkard unlocked the gates for them and let them in. Pues had his chain saw and a rope in the back of his truck; Revia brought his harness and spikes. Revia stated that the VFW had told Pues and him beforehand that the VFW did not have a chain saw or other equipment and "to bring ours." Revia agreed that, because of the confined space created by the building, the fence, and the power line, there was no other way to fell the tree. He also stated that it was "pretty much standard procedure when you are taking a tree down like that."
Revia testified that he had trimmed and felled trees in the same way "many times" before, and that he had felled trees of the same size that way about ten or fifteen times. He and Pues had done it together about five times. Consequently, Revia testified, when he told Stunkard he could fell the tree, he knew how he was going to do it. Further, when they were actually felling the tree, he agreed that he was doing it the way he had originally anticipated doing it. Revia also testified that, in the previous five times he and Pues had felled a tree, Revia was the one in the tree.
While they were working on the tree, Reeves would tell Revia "which limb to put a rope on and to make sure [he] was tying knots." But if Revia disagreed he would tell Reeves how he would do it, and, because Revia was the one "up in the tree," he would usually win the disagreements. Revia agreed that he understood he was going to fell the tree using his own means and methods, and although someone from the VFW could make suggestions, he was going to rely on his own experience to complete the job. Revia also testified that he never considered himself an employee of the VFW, and Pues never said anything to him to indicate that Pues considered himself an employee. Revia agreed that neither he nor Pues nor the VFW were responsible for the accident.
Revia also testified that he and Pues had the equipment they needed to do the job right, and he knew nothing about the rope not being long enough. He agreed that Reeves suggested they use the rope they had in the back of the truck. Revia did not hear Reeves telling Pues anything about how to do his part of the job. He also stated that no one at the site was more knowledgeable about how to fell the tree than he, and Pues was probably as knowledgeable as he. When Revia went to cut the top section of the tree, he knew that Pues was positioned about three or four feet away from the tree holding the rope. Revia stated that if he had it to do over, he would not trim and fell the tree any differently. He also testified that he would not use a block and tackle or jig because there was really no room to get anything like that in there.
D
Much of the evidence at trial and the parties' arguments on appeal are directed to whether Pues and Revia were employees or independent contractors and whether, in either case, the VFW exercised sufficient control over Pues's and Revia's work to be liable for Pues's damages. However, for purposes of resolving Pues's issues, we will assume without deciding that the evidence is legally sufficient to support the jury's findings that Pues and Revia were the VFW's employees, and address whether Pues presented legally sufficient evidence that the VFW was negligent and that its negligence caused Pues's injuries.
To impose liability for negligence, Pues must present evidence of a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). An employer has a duty to use ordinary care in providing a safe workplace. Id. It must, for example, warn an employee of the hazards of employment and provide needed safety equipment or assistance. Id. But an employer is not an insurer of its employees' safety. Id. It owes no duty to warn of hazards that are commonly known or already appreciated by the employee and no duty to provide equipment or assistance that is unnecessary to the job's safe performance. Jack in the Box v. Skiles, 221 S.W.3d 566, 568 (Tex. 2007) (per curiam); Kroger Co., 197 S.W.3d at 794. Moreover, when an employee's injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is no evidence that the work is unusually precarious. Kroger Co., 197 S.W.3d at 794.
Proximate cause requires both foreseeability and cause in fact. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act creates for others. Id. Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995), abrogated on other grounds, Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007). It is not enough to show cause in fact of the defendant's negligence did no more than provide a condition which made the injury possible. Id. at 776. The plaintiff may not establish these elements by mere conjecture, guess, or speculation. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Rather, the evidence must go further and show that such negligence was the proximate, and not the remote, cause of the resulting injuries and justify the conclusion that such injury was the natural and probable result thereof. Id. Even if the injury would not have occurred but for the defendant's actions, the nexus between the defendant and the plaintiff's injuries may be too attenuated to constitute legal cause. Id.; Union Pump Co., 898 S.W.2d at 776.
Pues contends the evidence supports the jury's findings that the VFW and Revia were negligent. First, Pues contends that the VFW breached a duty to provide necessary machinery, equipment, and tools for Pues, pointing to Pues's and Revia's testimony that the tree could have been felled and removed with one cut with a block and tackle, crane, jig lift, or cherry picker. But although there was testimony that machinery or equipment of the type Pues described could be used to fell trees more easily, the testimony also showed that such machinery or equipment could not have been used in the confined area where the tree was located. Revia testified he told Reeves that if they had some heavy equipment they could just "snatch" the whole tree at once, but he also admitted that the tree had to be cut in the way they did it because of its proximity to the fence, the cook shack, and the power line, and that there was no other way to remove the tree. Revia also testified that the manner in which they removed the tree was "standard procedure" in that situation, and that when he volunteered to fell the tree, he anticipated removing it in the manner they ultimately used. Pues likewise admitted that the reason they were trimming the limbs on one side first was so that when the tree fell, it would not bring down with it the electrical line running to the cook shack. Further, Pues stated that if he had it to do over again, he would not have done anything differently.
Neither Pues nor Revia testified that a block and tackle, crane, jig lift, or cherry picker should have been used in this specific situation instead of using a rope and chainsaw or that Pues would not have been injured if another method had been used. Additionally, there was no evidence that it was improper or unsafe to fell the tree in the manner they attempted. Indeed, Pues agreed that he was cutting down the tree on the VFW property in the same way he had felled trees on previous occasions. An employer has no duty to provide equipment or assistance that is unnecessary to the job's safe performance. Kroger Co., 197 S.W.3d at 794; LMC Complete Automotive, Inc., 229 S.W.3d at 476; see also Collins v. Singer Sewing Mach. Co., 239 F.2d 705, 706 (5th Cir. 1957) (employer not liable for failing to provide tools and equipment when plaintiff testified that he knew of no tools or equipment that employer could have supplied).
Pues also points to his testimony that the VFW could have provided more equipment for him to work with, including ropes and ladders. Specifically, Pues contends that the VFW failed to supply sufficient rope to Pues, which resulted in him standing directly under the top of the tree at a distance of only three to five feet when he was injured. Pues acknowledges his testimony that he believed he had sufficient rope, but argues that when read in context, his testimony shows that he believed he had sufficient rope when he removed it from his truck and at the time Revia was beginning to remove the top of the tree, but that he was standing too close to the tree because the length of rope was insufficient. Pues also testified that he thought he had enough rope to stand more than four or five feet from the tree. From this evidence, Pues contends, the jury could have determined that but for the VFW's failure to supply a longer rope, Pues would have been further away from the tree and would have avoided the accident.
On appeal, Pues does not argue that he needed a ladder to properly perform his part of the tree-cutting operation. His only testimony concerning a ladder was that he was not on a ladder at the time because the VFW had no ladder. However, Pues and Revia had cut down trees in a similar way at least five other times, and neither of them testified that Pues had used a ladder before or how he would have used a ladder if he had one. The only specific testimony about the use of a ladder was Revia's testimony that, because there was no ladder, he used his climbing spikes and safety harness to climb up the tree. Revia also testified that when he and Pues had previously cut trees, he was the one who went up the tree. There was no evidence that the lack of a ladder in any way caused or contributed to Pues's injuries.
We conclude that when viewed in context the evidence does not support Pues's argument. Pues testified that "at the time" he and Revia did not think they needed a longer rope, and after they took his rope from the trunk and examined it, they had no discussion about the sufficiency of the rope's length. This testimony shows that at the time Pues and Revia undertook the job, they believed they had sufficient rope. Pues also admitted that during the job as he was standing four or five feet from the tree and Revia was preparing to cut off the top of the tree, he believed he had enough rope. At no time did he appear to believe the rope was insufficient or that he should have been standing farther away. Also, Revia testified that he and Pues had the equipment they needed to perform the job correctly, and he knew nothing about the rope not being long enough. Indeed, Revia testified that, when he went to cut the top of the tree that fell on Pues, he knew where Pues was positioned because he and Pues "were talking about it." He explained that Pues was standing about three or four feet from the tree holding the rope so that he could "put [his] foot against it and have some leverage." Likewise, Pues himself testified that if he had it to do over again, he would not have stood farther away from the tree or gotten a longer rope.
Pues argues that the VFW's argument to the jury that Pues was negligent because he was too close to the tree in a "zone of danger" supports his argument that the rope was too short. But argument of counsel is not evidence. McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.-Dallas 1993, no writ) ("Motions and arguments of counsel are not evidence.").
Thus, the evidence does not support Pues's assertion that if he had additional rope he would have stood farther away from the tree and avoided the accident. See City of Keller, 168 S.W.3d at 812 (stating that "evidence cannot be taken out of context in a way that makes it seem to support a verdict when in fact it never did"). Viewing the evidence in a light most favorable to the verdict, and assuming the VFW was obligated to supply a rope, there is no evidence that its failure to do so was a proximate cause of Pues's injuries. See Union Pump Co., 898 S.W.2d at 775.
Next, Pues asserts that the VFW failed to adequately supervise him because he "was so close to the tree when he was injured that he was surprised and could not move out of the way." But as we have discussed, there was no evidence that Pues should not have been standing near the tree or that if he had been farther away from the tree he would not have been injured. To the contrary, Revia's testimony indicates that Pues was standing where he was to get "leverage" before the tree top was lowered down, and both Revia and Pues acknowledged that if they had it to do over again, they would have done nothing differently in felling the tree. There was also no evidence that Reeves or anyone else connected with the VFW gave any suggestions or instructions to Pues or Revia that caused or contributed to Pues's injuries. Thus, this case is distinguishable from Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), cited by Pues, in which the supreme court held that there was legally sufficient evidence of proximate cause when a general contractor's supervisor knew of and approved acts that were dangerous and unsafe. See id. at 784-85.
We understand Pues's complaint to be that the VFW failed to warn him of the possible dangers of standing near a tree being cut down. But an employer owes no duty to warn of hazards that are commonly known or already appreciated by the employee. Jack in the Box, 221 S.W.3d at 568; Kroger Co., 197 S.W.3d at 794. The duty to warn or caution an employee of a danger arises when (1) the employment is of a dangerous character requiring skill and caution for its safe and proper discharge, and (2) the employer is aware of the danger and has reason to know the employee is unaware of the danger. Nat'l Convenience Stores Inc. v Matherne, 987 S.W.2d 145, 149 (Tex. App.-Houston [14th Dist.] 1999, no pet.); Allen v. A T Transp. Co., 79 S.W.3d 65, 70 (Tex. App.-Texarkana 2002, pet denied). An employer's duty to instruct applies only to an inexperienced employee, not to one who is experienced in the work he is assigned. Matherne, 987 S.W.2d at 149; Allen, 79 S.W.3d at 70.
Here, the VFW was not in the business of felling trees, and there was no evidence that Reeves had any experience or knowledge concerning cutting down trees. Indeed, both Pues and Revia characterized Reeves as a "know-it-all," which to Pues meant that Reeves was "[s]omebody that knew a little bit about everything." In contrast, Pues and Revia were experienced tree cutters who attempted to fell the tree in the same manner they had done on previous occasions. Revia testified that he had worked for a tree service and had felled trees in the same way many times before, and had felled trees with Pues several times before. Revia also testified that no one at the site was more knowledgeable about cutting trees than he, and that Pues may have been as knowledgeable. Pues also acknowledged that he had cut down trees in the same way many times, and he had done so with Revia "a few times." Pues also testified that he could have declined the VFW's request to cut down the tree. Moreover, both Revia and Pues testified that they would have done nothing differently if they had it to do over again. Under these facts, the VFW had no duty to warn Pues and Revia of any danger associated with standing under a tree as it is being cut, especially when they were experienced at felling trees in the same manner and voluntarily decided to fell the tree. See Jack in the Box, 221 S.W.3d at 568 (holding employer owed no duty to experienced employee who was injured when he voluntarily decided to use ladder to unload trailer injured when trailer's lift gate was broken); Matherne, 987 S.W.2d at 149 (holding that employer had no duty to instruct employee concerning dangers of driving his car when performing job-related duties); Allen, 79 S.W.3d at 71 (holding that employer had no duty to instruct experienced employee in his chosen trade); see also Davis v. W.T. Carter Bros., 19 S.W.2d 336, 338 (Tex. Civ. App.-Beaumont 1929, writ ref'd) (holding that lumber manufacturer was not negligent when employee was struck by limb that fell unexpectedly as employee was cutting down tree). Even if the VFW did owe a duty to supervise Pues and Revia's work, there is no evidence that anyone connected with the VFW failed to provide proper instruction or gave unsafe or dangerous instructions that caused Pues's injuries.
Lastly, Pues contends that the VFW was responsible for Revia's negligence. See LMC Complete Automotive, 229 S.W.3d at 476. Pues asserts that the jury could have found that Revia was negligent for cutting the top of the tree without sufficient clearance to assure that Pues would not be hit by the falling tree, as the VFW's counsel argued to the jury and in its motion to designate Revia as a responsible party. But jury argument and motions are not evidence. There is no evidence that Revia was careless or failed to ascertain where Pues was as he cut off the top of the tree. Pues testified that when Revia cut the top of the tree, the limb suddenly "just kicked out" and he could not get away from it. There was no testimony that Revia was cutting the tree in an improper or unsafe way. And, as discussed above, Revia knew where Pues was standing when he prepared to cut off the top of the tree because they were discussing Pues's location at the time. Because there is no evidence that Revia was negligent in cutting the tree, the VFW cannot be liable on this basis. Cf. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 568-570 (Tex. 1972) (holding evidence was legally sufficient to support finding that employer was negligent for injury sustained by employee while felling trees when coworker who was hired to watch for falling limbs testified that he "just forgot to look on this particular occasion").
Accordingly, we hold that the trial court did not err in granting the VFW's motion for JNOV and we overrule Pues's issues.
* * *
We overrule Pues's issues and affirm the trial court's judgment.