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Marathon Corp. v. Pitzner8/2/2001
e grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. Tex. R. Civ. P. 274.
Furthermore,
ailure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the question is one relied upon by the opposing party. Tex. R. Civ. P. 278; see Payne, 838 S.W.2d at 241 ("There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.").
Marathon has not shown that it objected to the omission of a question or instruction relating to the right of control, or that it submitted such a question or instruction to the trial court, and we find none in the record. Therefore, Marathon has failed to preserve for our review any error in the charge. Appellant's first and second issues are overruled.
c. Constructive Knowledge
In its third issue, Marathon contends the evidence is legally insufficient to show that Marathon: (1) had actual or constructive knowledge of a dangerous condition on the premises, (2) had actual or constructive knowledge that a condition on the premises posed an unreasonable risk of harm, and (3) did not exercise reasonable care to reduce or eliminate the risk.
If an owner or occupier has breached a statute or ordinance that was designed to prevent injury to the class of persons to which the injured party belongs, the owner or occupier is considered negligent per se. Nixon, 690 S.W.2d at 549; El Chico Corp v. Poole, 732 S.W.2d 306, 312 (Tex. 1987); Gonzalez v. Trinity Indus., Inc., 7 S.W.2d 303, 308 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). Both Davidson and Eftekhar testified that the applicable Dallas city ordinances were designed to prevent injury to repairmen such as Pitzner. Davidson said that one ordinance holds the owner of the building liable for obtaining all necessary permits and inspections.
In support of the "knowledge" element, Pitzner relies on Davidson's testimony that the units were installed in 1985 or 1986 without a disconnect switch in violation of the Dallas city building code and ordinances, and that Marathon failed to secure the necessary permits for their installation at that time. Pitzner argues that if Marathon had sought the permits, an inspector would have told Marathon that safety codes prohibited it from placing the units so close together and that a disconnect switch was required. Therefore, Pitzner contends, Marathon should be charged with constructive knowledge of the dangers posed by the close placement of the units and the absence of a disconnect switch.
Marathon challenges Davidson's conclusion that the units were installed in 1985 or 1986 as "speculation." Davidson testified that he determined the year from examining the serial numbers on the units and contacting the manufacturer. Davidson's experience and qualifications in the air conditioning field were well-established. The jury was free to accept Davidson's testimony regarding the timing of the installation of the units and the relevant code provisions in effect at that time.
Marathon also argues that it was entitled to rely on the inspection that accompanied the "certificate of occupancy" it received in 1991 as assurance that the building was free of dangerous cond
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