Session May 22, 2019
from the Circuit Court for Hawkins County No. CC17CV150 Beth
plaintiff sued the defendant for negligence after he was
injured in a construction accident on the defendant's
property. The defendant claimed that he was not the employer
of the plaintiff. Following a trial, the jury returned a
verdict in favor of the defendant and awarded the plaintiff
no damages. The plaintiff appeals. We reverse the jury's
verdict only as to damages.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed in part; Affirmed in part; Case
Wayne Helton, pro se.
Lawson, pro se.
W. McClarty, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and Arnold B. Goldin, J., joined.
W. MCCLARTY, JUDGE.
fall of 2012, local "handyman" Gene Housewright was
planning to help the defendant, Earl Lawson, construct a
house. The plaintiff, Jimmy Wayne Helton, contacted
Housewright seeking employment. According to Helton, Housewright
informed him that Lawson was going to build his own home and
would need laborers for that project. On November 6, 2012,
the day of the accident, Housewright and another worker
"started assembling bracing to screw it to the house for
[a] board to sit on." Later that morning, Helton was
standing on the board while hanging vinyl siding. Another
worker was on the other end of the board and one was on the
ground handing up the pieces of siding. According to Helton,
as he started to nail up a piece of siding, the board flew
out from under him. It appears that the bracing pulled loose
from the house and collapsed, sending Helton feet first into
a footer ditch containing concrete. The worker handing up the
siding to Helton testified at trial that "[t]he board
come loose, and he fell straight down, and the walk board was
on top of his leg when we got him back up."
Lawson attempting to take him to the emergency room, Helton,
believing that he had only suffered a sprained ankle, refused
to go. About 30 days after the injury, however, Helton
informed Lawson that the ankle was not improving and that he
needed to see a doctor. He requested and was provided
Lawson's insurance information. After evaluation, Helton
was given a brace boot for a fractured ankle. He was informed
that Lawson's insurance would not cover the work-related
accident, as Lawson did not carry workers' compensation
insurance or hold a valid certificate of insurability under
the Workers' Compensation Act. Helton eventually learned
that in addition to the fractured ankle, he had sustained
other related painful and permanent personal injuries in the
than seeking Workers' Compensation benefits, Helton
brought this action and the prior nonsuited lawsuit in tort
for negligence. Helton asserted that because Lawson failed to
have a certificate of insurability and did not insure Helton
on the date of the accident, he was entitled to seek his
remedy in tort. He argued that Lawson employed him and should
have had workers' compensation coverage at the time of
the accident. He further contended that Lawson was the
provider of the unsafe and defective bracing equipment and
breached his duty of care to Helton and proximately caused
the damages Helton sustained. Lawson denied liability on the
ground that he was not Helton's employer and was not
responsible for the negligent acts of Housewright and his
moved for partial summary judgment on the issue of liability
- duty and breach of duty. He asserted that Lawson, on the
date of the accident: (a) did not have a proper certificate
of insurability showing that he had complied with the
Workers' Compensation Act; (b) did not carry Workers'
Compensation Insurance on any of the persons he employed; and
(c) had no Workers' Compensation Insurance coverage on
Helton. Helton argued that Tennessee Code Annotated section
50-6-405(a) required an employer to "[i]nsure and keep
insured" his liability under the Act, and to
"[p]ossess a valid certificate of authority from the
commissioner of commerce and insurance by furnishing
satisfactory proof" of his ability to pay all claims
arising under the Act. Helton relied upon section
50-6-406(b), which provides as follows:
If an employer fails to comply with 50-6-405, then during the
continuance of the failure, the employer shall be liable to
an injured employee . . . for damages to be recovered as if
this chapter had not been enacted . . .; and in the case suit
for damages is brought instead of a suit to recover
compensation under this chapter, the employer, when sued,
shall not be allowed to set up as defense to the action that
the employee was negligent or that the injury was caused by
negligence of a fellow servant or fellow employee, or that
the employee had assumed the risk of injury.
thus contended that Lawson was not allowed to set up the
defense that Helton was negligent, as the statute's terms
negate any comparative fault defense. He further argued that
Lawson could not "pawn" the accident off on a
supervisory employee (Housewright), as Lawson would be
precluded from raising the defense that the injury was
"caused by negligence of a fellow servant or fellow
response, Lawson asserted reliance on Tennessee Code
Annotated section 50-6-106(1)(B)(2) relating to exemption of
"casual employees" from the provisions of the
Workers' Compensation Act, and sections 50-6-902(b)(4)
and (b)(5), exempting from coverage a construction services
provider who is either performing work directly for
the owner of the property or is employed to provide services,
maintenance, or improvements on the construction services
provider's own property. Helton replied that the test of
casual employment is whether the employee is employed in the
usual course of trade, business, profession or occupation
of the employer, and that the period of time the
employee is employed is immaterial to this test (emphasis
added). He argued that Lawson had admitted that he was in the
construction business, negating the "casual
employee" defense. Thus, contended Helton, Lawson could
not rely on Tennessee Code Annotated section
section 50-6-902(b)(4), Helton argued that it applied only to
those who totally subcontract out work on their own property
and he asserted that there was no allegation that Lawson did
not supervise the work of Helton and the others. Helton
further contended that Lawson affirmed in the permit that he
was the principal contractor on the job, negating the section
50-6-902(b)(4) exemption. As to section 50-6-902(b)(5),
Helton asserted that a construction services provider like
Lawson would be exempt from compliance with the terms and
provisions of the Workers' Compensation Act if he himself
was "building a dwelling or other structure, or
performing maintenance, repairs, or making additions to
structures, on the construction service provider's own
property," but that the exemption was inapplicable
because Lawson was not building the house for himself and had
sold the home.
admitted that he carried no certificate of compliance or any
workers' compensation insurance on the date of the
accident. He contended, however, that summary judgment was
inappropriate because there was a disputable issue of
material fact as to who served as Helton's employer.
Lawson relied on an affidavit in which Housewright maintained
that it was he who had hired Helton and that "[a]t all
times any individual who worked on the home at issue worked
for me at my direction and did what I told them by way of
their work efforts."
trial court ruled that summary judgment was not appropriate
because Helton's employment status was in dispute. The
jury trial came to be heard on July 2, 2018.
trial, Lawson again acknowledged that he did not have
workers' compensation insurance. Lawson contended that
because the non-party Housewright was Helton's employer,
Housewright would be at fault and responsible for any
injuries Helton could prove.
admitted that the project's accounts were in his name,
that the invoices for materials bore his name, that he paid
the bills, and that he basically controlled the operation. He
acknowledged that he secured the building permit in his name,
affirming on the form the following: "I am a record
owner of the property on which the work is to be performed
and this residential structure is for my own individual use
and is not for sale, lease or rent . . . ."; "I
will perform all work for which the building permit was
issued . . . and agree to ensure anyone hired must show proof
of license . . . ."; "I am not hiring a
construction manager to oversee the project[, ]"; and
"[S]hould I cease to act as the owner-builder of the
project, and hire a contractor to complete the project, . . .
the contractor will apply for a new permit." In essence,
by obtaining the building permit in his name, Lawson agreed
that he would be acting as his own "general
contractor" or "prime contractor" on the
project. Despite signing an acknowledgment that he
had "read the important notices document and understand
the requirements and responsibilities that accompany a
Homeowner's Permit and that I have truthfully completed
this application," Lawson testified that he did not read
the notices on the building permit application; rather, he
just marked what "[t]he lady told me to mark - to answer
these questions and sign here." Lawson asserted that he
did not understand that his answers on the permit meant that
he "couldn't hire people to help . . . work on that
home or get Gene to run the job or anything like that."
He stated that he had built other buildings and had never
secured a permit.
testified that he did not witness Helton's fall, but when
he arrived, Helton declared to him that the injury was just
an ankle sprain. Lawson claimed that he was not involved in
any way with the bracing and did not provide any equipment or
tools. He asserted that the bracing was hand built by
Housewright, who, with the help of another worker, assembled
it to "screw it to the house for the board [a piece of
aluminum] to sit on." Lawson did comment that perhaps
the bracing did not collapse but rather that Helton was under
the influence of marijuana or alcohol, or a combination of
the two, when he fell. Suggestions that drug use was an
issue, were made throughout the trial, by the defense but, no
proof of Helton's impairment was established. Another
witness, the worker who was handing the vinyl up to Helton,
opined that Helton was not impaired and was able to do his
related that he did not know Helton before the work on the
house; rather, according to Lawson, Housewright hired Helton
to work for him. Lawson declared that he did not instruct
Housewright to hire other workers for the project, but
Housewright secured other individuals to work with him.
Lawson claimed that he had no control over the laborers - he
did not hire or fire any of them nor did he schedule the work
hours. Lawson stated that he paid Housewright in cash and was
unaware of how Housewright paid the workers. Lawson
acknowledged that Housewright never purchased anything with
his own money.
testified that he "was working on [Lawson's house]
with a couple of boys that work with me." He stated that
he hired Helton upon the suggestion of the electrician,
Helton's brother. According to Housewright, Helton
"'worked for me,' and I 'was his boss and/or
supervisor.' I was the one building the house. [Lawson]
paid us, but [Helton] worked for me." Housewright
claimed to be "the prime contractor on th[e] house"
and was "overseeing the project." He testified that
Lawson designed the house, "drawed the prints out and
told . . . what he wanted," and "[h]e'd come
over there after work of the evening and say if it was all
right or not all right." According to Housewright,
Lawson paid for everything. In an affidavit, Housewright
maintained that he was hired by Lawson to construct the house
and that it was his choice who to hire as laborers. He stated
that "[a]t all times any individual who worked on the
home at issue worked for me at my direction and did what I
told them by way of their work efforts." Housewright
claimed that "[a]t no time did I ever tell anyone
working for me that they worked for anyone other than
me," nor "did I ever tell anyone that they would be
working for Earl Lawson." He observed that Lawson
"had no knowledge" of Helton being hired and
probably "did not even know" Helton. As to the
bracing, Housewright claimed that Helton helped construct it,
and if it was improperly built, it was due to Helton's
own negligence. Housewright claimed to be unaware that he
lacked the authority to construct a building exceeding $25,
000 in value because he was not a licensed contractor. He
acknowledged that he smoked two joints of marijuana with
Helton the day of the accident before work started.
claimed that Housewright informed the workers that while on
Lawson's property, they worked for Lawson. He noted at
trial as follows:
I thought I worked for [Lawson] because [Housewright]
introduced me to [him] and told him I was there to help [him]
build his house. We shook hands. We went to work. Just
because I'd been in around the business for many years, I
knew that [Lawson] was the employer, and I knew that he had
to have the building permit because it was his property and
there was no licensed contractor on the property. It had to
to Helton, Housewright located the experienced workers for
the construction of the house for Lawson and served as a
supervisor to Lawson on the build. He observed that
Housewright would total the hours worked by the workers, and
Lawson paid them in cash. Helton acknowledged that
Housewright assembled the bracing that failed to support the
platform. On appeal, he contends that the bracing was present
that morning when he arrived and that Lawson purchased the
materials. He asserts that incorrect anchors (screws) were
purchased, delivered, and supplied by Lawson for use on the
structure. Overall, he claimed Lawson is liable because
"it is his job, his property, his job site. He is liable
and responsible for his people."
to Helton, on the day of the accident, he was not under the
influence of anything at 9:30 in the morning. He contended
that he did not see Housewright smoking marijuana at the job
site. Helton testified that the last time he had water skied
or used a waterboard was about six years before the accident.
He acknowledged that he had suffered falls since the accident
because his right ankle will not hold up his weight and his
left leg will not "work right" and will "quit
working for no reason at all and [with] no warning . . .
." His girlfriend testified that she had witnessed him
falling several times. Helton asserted that prior to the
accident, he had no problems with his back, neck, or leg, but
now every day is a struggle. A physician's testimony
confirmed Helton's injuries and observed that Helton had
the jury trial, Helton was found to be an employee of the
non-party Housewright, 30 percent at fault for his injuries,
and entitled to no damages. Housewright was found to be 60%
at fault and Lawson 10%.
filed a "Motion for Re-Trial," asserting that the
jury did not appear to comprehend their responsibilities
pursuant to the jury instructions. He contended that because
Housewright was not a licensed contractor and could not
obtain a building permit on the project, Lawson should be
considered the employer of anyone working on the property -
Housewright as well as Helton. According to Helton, pursuant
to the building permit, Lawson assumed all responsibility on
the project. After the trial court denied the motion for a
new trial, Helton filed a timely appeal.
contends that the jury verdict was contrary to the weight of
the evidence presented at trial. Helton argues that Lawson,
as the permit holder, was responsible for the safety of the
persons working on the home. According to Helton, the
individual absolutely liable for his injuries was Lawson.
STANDARD OF REVIEW
13(d) of the Tennessee Rules of Appellate Procedure narrowly
limits the role of appellate courts in reviewing the factual
findings of a jury. Duran v. Hyundai Motor Am.,
Inc., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2013).
"Findings of fact by a jury in civil actions shall be
set aside only if there is no material evidence to support
the verdict." Tenn. R. App. P. 13(d); Goodale v.
Langenberg, 243 S.W.3d 575, 583 (Tenn. Ct. App. 2007).
"Material evidence is 'evidence material to the
question in controversy, which must necessarily enter into
the consideration of the controversy and by itself, or in
connection with the other evidence, be determinative of the
case.'" Meals ex rel. Meals v. Ford Motor
Co., 417 S.W.3d 414, 422 (Tenn. 2013) (quoting
Knoxville Traction Co. v. Brown, 89 S.W. 319, 321
(Tenn. 1905)). Material facts may be proven "by direct
or circumstantial evidence or a combination of both."
State v. Phillips, 138 S.W.3d 224, 230 (Tenn. Ct.
App. 2003) (citations omitted). Testimony alone may be
sufficient to establish a material fact. See Strickland
v. City of Lawrenceburg, 611 S.W.2d 832, 835 (Tenn. Ct.
App. 1980) (finding testimony was material evidence to
support the jury's verdict); Henley v. Amacher,
No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *13 (Tenn. Ct.
App. Jan. 28, 2002) ("[T]he surgeon's testimony
provides the material evidence needed to sustain the
jury's determination that the June 28, 1995 wreck left
Mr. Henley permanently impaired."). When determining
whether there is material evidence to support a jury verdict,
we must "take the strongest legitimate view of all the
evidence in favor of the verdict, assume the truth of all
evidence that supports the verdict, allow all reasonable
inferences to sustain the verdict, and discard all
countervailing evidence." Barkes v. River Park
Hosp., Inc., 328 S.W.3d 829, 833 (Tenn. 2010) (quoting
Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn.
reviewing a jury's verdict, we "do not recalibrate
the jury's preponderance of the evidence assessment"
or reevaluate credibility determinations. Ferguson v.
Middle Tennessee State Univ., 451 S.W.3d 375, 380 (Tenn.
2014). Accordingly, "[w]here there is material evidence
to support the verdict, the judgment will be affirmed even
though the testimony of one or more witnesses supports a
contrary verdict." Higgins v. Channel Five
Television Co., No. 89-127-II, 1989 WL 115217, at *1
(Tenn. Ct. App. Oct. 4, 1989) (citing City of Chattanooga
v. Ballew, 354 S.W.2d 806 (Tenn. Ct. App. 1961); Tenn.
R. App. P. Rule 13(d)).
purpose of the Workers' Compensation Law is to provide a
reliable and equitable remedy to workers who are injured on
the job, while limiting the liability to which the employer
is exposed. See Clanton v. Cain-Sloan Co., 677
S.W.2d 441, 443 (Tenn. 1984); Sasser v. Averitt
Express, 839 S.W.2d 422, 429 (Tenn. Ct. App. 1992).
Tennessee Code Annotated section 50-6-101, et seq. The law
requires employers to compensate employees for injuries
arising out of and occurring in the course of employment.
Tenn. Code Ann. § 50-6-103. Employers and employees in
Tennessee subject to the Workers' Compensation Law
"shall, respectively, pay and accept compensation for
personal injury or death by accident arising out of and in
the course of employment without regard to fault as a cause
of the injury or death[.]" Tenn. Code Ann. §
50-6-103(a)(2008). An injury must arise "primarily out
of and in the course and scope of employment that causes . .
. the need for medical treatment." Tenn. Code Ann.
§ 50-6-102(14). An injury arises out of employment when
there is a causal connection between the conditions under
which the work is required to be performed and the resulting
injury. Fritts v. Safety Nat'l Cas. Corp., 163
S.W.3d 673, 678 (Tenn. 2005).
only employers with five or more employees are required to
provide workers' compensation coverage for their
employees. Tenn. Code Ann. § 50-6-106(5). However, this
limitation does not apply to the construction industry,
"perhaps because of the dangers arising in many
construction trades and because many small contractors employ
fewer than five workers. CNA (Continental Cas.) v.
King, No. M2004-02911-COA-R3-CV, 2006 ...