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Marathon Corp. v. Pitzner8/2/2001
John C. Pitzner ("Pitzner"), a Dallas County resident, was working for Professional Employers Group, Inc. ("PEG"), a Texas corporation that supplied temporary employees, when he was sent out on an air conditioner repair job on Monday, July 18, 1994, for Environmental Comfort Systems, Inc. d/b/a Country Refrigeration ("ECSI"), a Texas corporation owned by Robert S. "Country" Hull ("Hull"), a Carrollton, Texas resident. Pitzner was asked to repair an air conditioning unit manufactured by York International Corporation ("York"), a Delaware corporation. The unit was located on the roof of Marathon Corporation, a Texas corporation, d/b/a Honda-Suzuki North ("Marathon" or "appellant"), a motorcycle dealership in Dallas. Pitzner was working alone on the roof when the dealership closed at 6:00 p.m. and its employees left. Approximately two hours later, he was found lying semiconscious on the ground next to the Marathon building, bleeding profusely from his left ear. Pitzner had fallen from the roof and sustained severe head trauma. A screwdriver with a burnt tip was found lying nearby. Pitzner's injuries prevented him from explaining what caused him to fall from the roof. He underwent emergency surgical removal of portions of the frontal and temporal lobes of his brain, leaving him seriously and permanently disabled.
Appellee, Steven Pitzner, became Pitzner's guardian and filed a personal injury action in the 370th District Court of Hidalgo County. Appellee asserted products liability, premises liability, and negligence causes of action against ECSI, Hull, PEG, York and Marathon. Appellee alleged that, while working on the unit, Pitzner received an electrical shock that caused him to fall backwards, trip over an improperly placed natural gas line and fall more than twelve feet to the concrete below. Appellee also alleged that the air conditioning unit was placed too close to another unit and did not have a disconnect switch, in violation of Dallas City Code ordinances (Chapter 55 of the Dallas Mechanical Code and Chapter 56 of the Dallas Electrical Code). ECSI, PEG, Hull and York eventually settled appellee's claims against them. Marathon was the sole defendant to go to trial. A jury found Marathon one hundred percent liable for Pitzner's injuries, and found that Pitzner's actual damages were in the amount of $5,945,500.00. The trial court signed a judgment for actual damages of $5,945,500.00, prejudgment interest of $1,785,652.50, and costs. This appeal ensued.
A. Appellate Issues
On appeal, Marathon presents the following issues:
Issue 1: Whether the evidence is legally and factually sufficient to show that Marathon owed a duty to Pitzner;
Issue 2: Whether appellee "failed to prove" that Marathon had any right of control over Pitzner's work and failed to request and obtain a jury finding regarding who had the right of control;
Issue 3: Whether the evidence is legally and factually sufficient to show that Marathon had actual or constructive knowledge of a dangerous condition on the premises, that a condition on the premises posed an unreasonable risk or harm, or that Marathon did not exercise reasonable care to reduce or eliminate the risk;
Issue 4: Whether the evidence is legally and factually sufficient to show that Marathon's negligence, if any, proximately caused Pitzner's injuries;
Issue 5: Whether the evidence is legally and factually sufficient to show that Marathon was solely responsible for Pitzner's injuries;
Issue 6: Whether the trial court abused its discretion by failing to transfer the case to Dallas County;
Issue 7: Whether the trial court abused its discretion by
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