Reversed and Rende red in Part, Reversed and Remanded in Part, and

Majority an d C o ncurring Opinion s filed June 14 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 19

- 00905

- CV

DIAMOND OFFSHORE DRI LLING, INC. AND DIAM OND RIG

INVESTMENTS LTD

. , Appellan t s

V.
WILLIAM BLACK , Appe l lee

On Appeal from the 281st D istrict C ourt

Harris County, Texas Trial Court Cause No. 2015

- 74728

M A J O R I T Y O P I N I O N Appellee William Black was injured while working as a mechanic o n board a mobile offshore drilling unit docked in Spain. Black sued appellants Diam o nd Offshore Drilling, Inc. ( “ Diamond Dri lling ” ) and Diamond Rig Investments
L imited ( “ Diamond R ig ” ) ( together
, “ Appellants ” ) for damages stemming from the
incident.2

The parties proceeded to trial and the jury returned a verdict in Black ’ s favor, finding that both Appellants were negligent wit h r espect to the incident. The trial court signed a final judgment awarding Black $2.2 million in damages.

On appeal, Appellants challenge (1) the wording of the sole jury questi o n on liability; (2) the legal and e videntiary bases for liability with respect to each Appellant; and (3) the sufficiency of the evidence supporting the dama ges assessed
for Black ’ s future medical expenses. For the reasons below, we rev erse the trial

cou r t ’ s judgment , render judgment in p a rt, and remand the c ase in part fo r further proceedings in accordance wit h this court ’ s opinion.

B ACKGROUND

Facts

Bl ack is a citizen and resident of the United Kingdo m. Bl ack was in jured on January 2, 2015, while worki n g as a mec hanic on boa rd the Ocean V aliant, a
mobile offshore dr illing unit. As Black was working on a piece of equipment located below knee level, he sat on a bu cket containing a caustic cleaning chemical
called “ AlfaNeutra. ” The bucket ’ s lid was not c om pletely fastened a nd, when
Black s a t down , the AlfaN eutra leake d out and s oak ed through Black ’ s clothes.
S hortly after, Bl a ck started to feel a burning pa in on hi s right buttock.

Black initially was treated on the ship b y Daryl Tankersley, a safety dep ar tment representati ve. B lack then w as transported to a local h o spital , where
his wound was dressed. Black returned to th e s hip the same da y and continued working.

Over the next several day s, Black ’ s pain co nti nued to worsen. Black

retu rned home to the U nited Kingdom and vis ited his loca l doctor. Black ’ s injury

was diagn osed as a third

- degree chemical burn and he was scheduled for a s kin3

gr a ft the following day. Black remained in the hospital for a week following his

surgery. Approximately five month s later, Black ’ s em ploy ment was term i nated as part of a pl anned r educti on

- in

- force

. As relevant to this appeal, we provide a brief overview of several Diamond
entities involved in the facts and circumstances giving rise to this case:

• In January 2008, Black s igned a written e mplo yment agreeme n t with Diamond Offshore Dril ling ( Bermuda) L imited ( “ Diamond Bermuda ” ). This agreement required Black to bring any claims against Diamond Bermud a “ in the courts of Bermuda. ”

• Diamond Bermuda is an “ employment subsidiary ” of parent corporation Diamond Dril l ing. Diamond Bermuda employ s thir d

country nationals like B lack.

• Diamond Offshore Services Limited is an other “ employment subsidiary ” of parent corporation Diamond Drilling. Diamond Offshore Services Limited e mp loys U n it ed States citizens.

• Dia mo n d D r illing ma intains its office in Hou sto n , Texas and has no employees.

• At the time of the incident , Diamo nd Rig owned the Ocean Valiant.

• Diamond Rig is a whol ly

- owned subsidiary of Diamond Drilling. Like Diamond Drill in g, Diamond Rig has no employ ee s.

• The seamen worki ng on the Ocean Va liant at t he ti m e of Black ’ s injury had employment agreements with Diamo nd Ber muda and Diamond Offshore Services Limited. Legal Proceedings
In December 2015, Black sued Diamond Drilli ng and two other Diamond
entit ie s, 1 a sserting claims under the Jone s Ac t, the gen eral m aritime law o f the
Un it ed States, and the laws of the United Kingdom. In his first amended petition,

1 S pecifi ca lly, Black also asse rted c laims against Diamon d Offshore Drilling, Limited and Diamon d Offshore General Company. Diamond Drilling is the parent corporation of both

e ntities.4

B lack add ed Diamond Rig and Diamond Bermuda as defendants.

The de fe ndants moved to dismiss Blac k ’ s su i t based o n th e forum selection
cla use in his empl o yment agree me nt with Diamond Bermuda and t he trial co urt granted the defendants ’ motion. Thi s c ourt reversed and remanded , holding that
the non

- signatory defendants

— i .e

. , all defend ants other th an D i amo n d Bermuda

— were “ not partie s to o r oth erwis e with in the scope ” of th e employment agreement , that B lack ’ s claims against th e non

- si gnatory defendants “ do not arise from the Agreement
, ” and those claims are based on stat ut e and commo n l aw

. See
Blac k v. D i a mon d Offshore Drilling, Inc. , 5 51 S.W .3 d 3 46 , 353, 355 (T ex. Ap p.

— Houston [14th Di st.] 2018, no pet.).

On re mand, the defe ndant s filed two motions for summary judgment. In their first motion, the def endants requested th at the t ri al co urt dismiss Bla ck ’ s clai ms against Diam ond Dri lling and t he two other Dia mond O ffsh ore en tities “ as the y neither e mp loyed [Black] .

. . nor owned the rig to which he was assigned. ” In their second motion, the defendants sought the dismiss al of Black ’ s Jon e s Ac t and general m arit ime law cl aim s. The trial court denied both moti ons.

T he parti es proceeded to a four

- day jury trial. Before closing arguments , t he
trial court granted a direct ed verdict on Black ’ s Jones Act claim

. The j ury ret ur ned

a v erdi ct f

ind ing that Diamond Dril ling, Diamond R ig, and Black were negligent
with r e spect to the incident . The jury appor tioned liability as follows: 52% to Diamond Drilling ; 28% to Diamond R i g; an d 20% to Black

. The jury assessed $2

. 75 million in damag es . The tri al court signed a fin al judgment on August 20, 2019, awarding Bla ck $2

. 2 mi ll ion in damages.
Appellants timely appealed.5 A NALY SIS Appellants raise three issues on appeal and contend that (1) jury charge Question No. 1 submitt ed an imm at erial claim tha t c ann o t support Bl a ck ’ s recovery; (2) there is neither a legal nor evide ntiar y basis to support the imposition of liability as to either Appellant; and (3) the evidence is insuffi cient to support the $1 million assessed as damages for Bla ck ’ s future medic al care expenses.

We overrule Appellants ’ first issue and conclude that the alleged er ror in the jury charge did not render Question No. 1 immaterial

. We overrule in part and

s ustain in part Appellants ’ second challenge and hold that ( 1) a sufficient l ega l and
evident iar y bas is supports the impo sition of liability against Diamon d Drilling, and (2) an insufficient evidenti ary basis supports liability against Diamond Rig. In light of this di sposition of Appellants ’ second issue , w e need no t reach Appella nts ’
third issue.

W e de vel op these issues m ore fully below.

I. Question No. 1

In their first issue, Appell ants co ntend that Q u estion No. 1 su bmitted a Jones
Ac t claim that is f

oreclosed as a matte r of law because t he phrase “ p roximate

cause ” w as omitted and rep laced w ith “ caus e , in whole o r in part

. ” Specifically, Appellants contend that the absence of the phrase “ pr oximately ca us ed ” automatically incorporat e d the “ featherweight ” cau sation standard utilized for
Jones Act claim s. See Noble D r illing (US) Inc. v . Fountain , 238 S .W.3 d 432 , 439

- 40 (T ex. App.

— Houston [1st Dist.] 2 00 7 , pet. d enie d ) ( “Under the J o nes Ac t, a

seama n is entitled to recovery i f his empl oyer ’s negligence is t he c ause, in whol e or in part , of his inju ry

. . . . The burde n t o establish cau sation under the Jo n es Act
has bee n ter med ‘ featherweight. ’ ” ).6

Appellants l iken this sit uation to that an alyzed in United Scaffoldi ng, Inc. v. Levine , 537 S.W.3d 4 6 3 (Tex. 2017 )

. Th ere, the plaintiff sued the defendant af ter he slipped o n a piece of plywood and fell throug h a s ca ffold. Id . at 467. The partie s proceeded to trial and the plaintiff ’ s claim wa s submitted to the jury as a
gener al negligence claim

. See id . at 469. But after co nsidering the p la intiff ’ s injury, his ple adings
, h is allegations, and the evidence p r esented at tri al, the

supreme cour t held th e clai m sounded in p remises liability

. See id . at 46 9

- 79. Concluding th at “ the theory of recovery submitted to the jury did not reflect the
cla im that was raised by the pl ea d in gs and the eviden ce, ” t he court he l d tha t the jury ’ s general negligence finding coul d not suppo rt recovery in a prem ises defect

c ase. Id . at 480

- 81.

Simila rly , Appellants contend that the alleged error i n Question No. 1 show s that Black submitted a Jon e s Act claim that cann ot s upport his r ecovery

. We disagree.

First
, the question submitt ed here d id not omit a specific element necessary

to support Black ’ s re cover y under a general negligence theory

. “ The elements of negligen ce are a legal duty, brea c h of that dut y, and dama ges proximat e ly caused
b y the breach. ” Hernandez v. Gonza lez

- Flores , 530 S.W.3d 253, 256 (Tex. Ap p

. — Houston [14th Dist.] 2017, pet. denied). Each of t hese elemen ts was substantially submitted to the jury

. Even though the element of causation as stated in Question No. 1 neglected to include the “proximate” designation, the definition of “proximate cause” was included in the “Definitions and Instructions” portion of the charge immediately preceding Question N o. 1. See also United S ca ffolding,
I nc. , 537 S.W.3d at 480

- 81 (noting that the elements of premises liability were not submitted as “instructions or definitions”).

Und er these circum stances , the omissi on of the phr ase “ pr oximate cause ”7

from Question No. 1 did not submit anoth er or wrong th eory of liability to the jury; instead, it co nstitute d (at most ) “ an indep enden t theory of recovery [that] [ wa ] s submitted defectively

. ” See id

. at 481. Any objections to such error must be made

to the trial court or they are waived. Id

. ; see also Chang v. Denny , No. 05

- 1 7

- 01457

- CV, 2019 WL 3955765, at * 5 (Tex . App.

— Dallas Au g. 22, 20 19, pet.
denied ) (mem. op.) (the defendant w a s requ ired to object to the jury char ge because his “ comp laint is with the wording of the question and wheth er it sho ul d
have tied diligence to the f iling of the lawsuit instead of prosecutin g the claim ” ) ; Free v. Lewis , No. 13

- 1 1

- 00113

- CV, 2012 WL 3242090, at * 8 (Tex. App.

— Corp us Christi A ug. 9, 2012, no pet.) (mem. op.) (the d efendant was required to object to the char ge t o preserv e his complaint tha t the jury question omitted one of
the elements necessa ry to sup port a breach of con t ract c laim ). H ere, Appellants did not object to the alleged e rror in Question N o. 1 , a nd t he fa ilure to do so waives
the complain t App ella nt s a ssert on appeal. 2 See Tex. R. Civ. P. 274 , 279 ; see also Chang
, 2019 WL 3955765, a t * 5 ; Free , 201 2 WL 3242090, at * 8

. Second, we have carefully examined the charge at issue and c ompared it
with t he Fifth Cir cuit ’ s pattern instruction for Jones Act c laim s

. 3 T hese pat tern

2 In his concurring opinion, Justice Je well asserts t hat Appellants “do not challenge the omission of proximate cause from the negligen ce question” but instead “argue that the omission of proximate cause means that the question was not a negligence question at all.” See Concurring Op. at 5 n.2 . We agree th at this is how Appellants attempt to frame the argument raised in their first issu e. However, because the thrust of Appellants’ issue challenges the omission of “proximate cause” from Question No. 1, we cons true this as a challenge to the

wo rding of the q uestion itself

— an argument that requires a t imely objection in the trial court. See Tex. R. Civ. P. 274, 279; see also Chang , 2019 WL 3955765, at *5; Free , 2012 WL 3242090, at *8.

3 Fifth Cir cuit District Judges Asso ciation Patter n Jury In structio ns Com mitt ee , Pattern Jury Instruc tions, Ci vil Cases § 4.4 (2014)

.

U nder the Jones A ct , Plaintiff [nam e] must p ro ve that [his /her] em ployer was negligent. Negligence is doing an act that a reasonably pr udent p erso n would not do, or f ailing to do something tha t a re as onably pr udent8

jury charges counsel agains t the conclusion that Question No. 1 submitted a Jones
Act claim

. Finally, United Scaffolding emphas ized th at a theory o f premises lia b ility required four s pecific findings in addition to t he general negl igen ce elemen ts that

per son would do, under the same or similar circumstances

. The

occurrence o f an acci dent, standing alone, does not mean that anyone was neg ligent or that a nyon e ’ s negl igence caused th e ac cident.
In a Jones Act claim, the word “ negl igen ce ” is liberally interpreted. It includes any breach of duty that an employ er owes to its emp loyees wh o are seamen, inclu din g the duty of providing for the s afety of the cr e w

. Under the Jone s Act, if the employer ’ s negligent act was the cause, in who le o r in part, of injury to a seaman employee, then you must find that the emplo ye r is liable unde r the Jon es Act. In other word s, under the Jones Act , Defendan t [name] bears th e responsibility f or any neg lige nce that played a pa rt, however slight, in cau sing P la intiff [name] ’ s injury. Negligence und er the Jones Act may consist of a fa ilure to comply with a du ty required by law. E mployers of seamen have a duty to provide their

e mployees with a re asonably s afe place to work. If y ou find that Plaintiff [na me] wa s injured because Defendant [name] faile d to furnish [him/her] with a reas on ably safe place to work, and that Plaintiff [na me] ’ s wor king conditions could ha ve been made saf e t hrough the exer cise of re ason able care, then you must find th at Defendant [ name ] wa s negligent.
The fact that Defen dant [name] conducted its operations i n a manner similar to that of other companies is not conclusive as to whether Defe ndant [name] was negligent or not.
You mus t de termine if the opera tion in ques tion was reaso nabl y sa fe under the circumstances. The fact that a certain practice had been c on tinued for a lon g period of time does not neces sari ly mean that it is reasonably safe under all circumstances. A long

- accep ted practice may be an u nsafe practi ce. A practic e is n ot necessarily unsafe or unreasonable, h owever, merely because it injures so meone. A seama n ’ s emplo yer is legal ly respons ibl e for the negligence of one of [his/her] emplo yees while that em ployee is acti ng within the cour se and scope o f [his/ her] [j ob] [e mp loyment]. If you find from a preponder ance of the evidence that Defendan t [name] assi gned Plaintiff [name] to perform a t ask that the Plaintiff [name] was not adequately trained to perform , you must fin d that Defendant [na me]

was negl igent

.9

were submitted to the jury

. 4 Here, Black ’ s theory of liability “ was submitted to the jury under only a general negli gence t he ory of rec overy, without t he elemen ts o f premises liabi lity a s instructions o r de finitions

. ” Therefore, t his ve rd ict could not support the plaintif

f ’ s recovery in a premises defe ct case. See United Scaffolding,
Inc. , 537 S.W.3d at 480

- 81.

W e overrule Appellant ’ s first issu e.
II. Legal an d Evidentiary Ba se s for Liabilit y
In thei r second issue , Appellants contend t hat (1) there is no le ga l basis fo r the impos ition of a duty as to either Appellant , and (2) the re is no evidentiary basis to support the existence or breach of a d u ty as to either Appellant

. We consider these arguments separately.

A. Legal Basi s Appellan ts ’ argume nt concernin g the legal bas is of an impos ed duty is compri sed of two parts.
First, Appellants assert th at the “ j ury charg e contains no predicate findings

n ece ssa ry to esta b lish tha t the se s eparate and di stinct Diamond entit ies owed a

co gnizable l egal duty towards Bla c k under the circumstanc es in which the Jones
A ct and general maritime law do not app ly

. ” S pecifically, Appel lants argue that no jury findings wer e r equested o r made with re spec t to alter ego , ag enc y, respondeat superior, or any other legal the ory that co u ld establish a cognizab le duty on the part

4 Spe cifi ca lly, those elements include that the (1) def endant had actua l or c onstruct iv e knowledge of so m e condition on the pr emises; (2) co n dition posed a n unreasonable risk of harm t o the pl aintiff; (3) defendant did not exer cise re asonable care t o reduce or to eliminate the risk; and ( 4) defendan t ’ s fa ilure to u se such care prox i mately caus ed the plaintiff ’ s per sonal injuries. United Sc affolding, Inc. , 537 S.W.3d at 471

- 72 (citing Corbi n v. Safeway Stores, Inc. , 648 S.W.2d 292, 296 (Te x. 1983)) ; see also Comm . on Pattern Jury Char ges, State Bar o f Tex.
, Texas Pa ttern Jury Charge s : Malpract ice, Premises, Products PJC 66.4 (2020).10

of the Diamond entities separate from Diamond Bermud a , w ith whom B lack had signe d an employment agre ement

. This ar gum ent is sim ilar to those anal yzed and r ejected in Service Corpora tion Inter

national v . Guerra , 34 8 S.W.3d 221 (Tex. 2011 ), and Ross Stores, Inc. v. Miller , 612 S.W.3 d 682 (Tex. App.

— Houston [14th Dist.] 20 2 0, no pet.). In Service Corporati on International
, the plain tif fs sued a cemetery opera t or and its parent corporat ion after their rela tive ’ s body was moved to another bu rial

p lot witho ut their consent. 348 S.W.3d at 227. The jury r eturned a verdict in f avor of the plain tiffs

. I

d

. On appeal, the defen dants chal len ged the pr edicate findin g s

n eces sar y to support the plaintiff s ’ neglige nce claim and argued the jury char g e failed to “ cont ain a separate question asking if any of the actors were [the parent corporati on ’ s] employees

. ” Id . at 228. Rejecting this argum ent , the cou r t stated
that “ [w] hether the actors invol v ed in this case wer e [the parent corporati on ’ s ] employ e es was not an independent gro und of recovery; the actors ’ status as employees was an element of the [plaintiffs ’ ] negli gence claim again st [the pa ren t corporat ion]. ” Id

. (empha sis in original)

. The court furth er held:

When a n element of the claim is omitted from the jury charge without objection and no written findings are made b y the trial court on that element t hen the omitted e lement is dee med to hav e been found b y th e court in such manner a s to support th e ju dgment. Here there was n o objectio n to the charge on the basis that it omitted the el ement nor did the trial court make a finding on it, so there is a dee med finding in

su pport of t he judgment.

Id . at 228

- 2 9 (i nternal citations o mitt e d).

I n Ross Sto re s, Inc. , the plaintiff su ed the par e nt corporation of Ross Dress
for Less, Inc. after he sustained injuries in a physica l altercation at work. 612
S.W.3d at 685. The jury retur ned a v erdict for the plaintiff on his neg ligence
claims. Id

. On appeal, t h e parent corpo ration argue d that th e evidence was legally11

insufficient to support the jury ’ s negligence finding since th e plaintiff was no t an employee of the parent corpor ation nor did the paren t corporation a ssu me cont rol
over its sub si diary ’ s safety po l icies

. Id . at 687

- 88

. In response , the plaintiff argued that the parent corporation waived this issue by fail ing to req uest “ a threshold fac t question ‘ c alculated to dete r min e the question of duty

. ’ ” I d

. at 688

. B ut as in Se rvi ce C

o rp orat ion Internati o nal
, the paren t corporatio n ’ s argumen t focused on an element of the pla intiff ’ s negligence cla im

. Id

. “ [T] here was no

o bjection to th e cha rge on the basi s that it omitted the e lement , and the trial co urt did not m ake a finding on t his e le ment, so there [ was ] a deemed finding in s upport of t he judgment. ” Id

. The court proceeded to analyze whether this deemed finding

was s upported by legally sufficient evi dence. See id . a t 6 87

- 91.
Here too, the question of w hether either Appel lant ha d a relationship wi t h
the actor s i n this case sufficient to support the imposition of a duty was an elemen t of Black ’ s c laim s again st Appella nts. See Serv. Corp. Int ’ l , 3 48 S .W.3d at 228

- 29 ; Ross Store s, Inc. , 612 S.W.3d at 686

. There was no objection to t he charge on

grou n ds that thi s e lement was o mitted nor were written findings made b y the tr ial

court on this point . T here fore, t he omitted element is deemed to have been fo und by th e trial court in s uch a manner as to s upport t he judgment

. Serv. Corp. In t ’ l
, 348 S.W.3d a t 229 ; Ross Sto res, Inc. , 6 12 S.W.3 d a t 686. But a s with other findings, th ere must b e evidence in the record to support a de emed finding. Serv. Corp. In t ’ l , 348 S.W.3d a t 229 ; Ros s Stores, Inc. , 612 S.W.3d at 686. In the following se ct ions, w e undertak e this evid enti ary analysis separatel y with respect

to each Appellant.

Se con d, Appella nts argue that Bla ck ’ s u n timely

- fil ed “ Notice of I ntent to Rely on Fo reign Law ” cannot supply a legal basis for the duty impo sed on Appellants. Black ’ s notice sought to apply Engli sh l aw to the su bstantive l egal12

issu es in the case. Under Te xas Ru le of E vidence 203, a par ty “ who intends t o raise an issue about a foreign c ountry ’ s law must : (1) giv e reasonabl e no tice by a

p lea ding or writing; and (2) a t l ea st 3 0 days befo re t rial
, suppl y all partie s a copy of any writte n materials or sources th e p arty in tends to use t o pr ove the foreign la w

. ”
Tex. R. Evid. 203. “ If the p arty s eeking th e applicati on of foreign la w fails to

pro vide the necessary informa tio n to th e tria l co urt, ther e is a presumption that th e l aw of the f

oreign jurisdiction is id ent ical to that of Texas

. ” Cal Div e O f fshore
Contractors Inc. v. Bry ant , 478 S

. W.3d 9 14, 921 ( Tex. App.

— H ouston [14th Dis t.] 2015, no p et.) ; Penn W

ell Corp. v. Ke n A ssocs ., Inc. , 123 S.W.3d 7 56, 76 4 (Tex. App.

— Houston [1 4th Dist.] 2003, pet. denied)

. Her e, Black ’ s first amended pet ition i nvok ed Engl ish law to gove rn his claims. Spe cifically, Blac k pleaded E n glish law claim s as a n altern ative to his
Jones Act and ge neral maritime cl aims. Bu t Blac k ’ s “ Notic e of Intent t o Rely on Foreign Law ” was filed fou r days bef ore tria l bega n , t hus fai ling to com ply with
Rule 203 ’ s thirty

- day fil ing deadline fo r sources e stablis hing th e substance of t he foreign law

. See Tex. R. Evid. 203. Accor dingly, B lack o nly may rely on Texas
l aw to establish a cogn izable bas i s f or liabili ty with respec t to Appell ants

. See Cal Dive Offshore Contractors Inc. , 4 7 8 S.W.3d at 921; PennWell Corp. , 123 S.W.3d
at 7 64.
Under Texas law, a plain ti f f see king to esta blish lia b ility for neglige nce
must pr ove the exi st e nce an d vi olation of a d u ty owed to him by the defendant

. Greater H

ouston Transp . Co. v. Phillips , 80 1 S. W.2d 523, 5 25 (T ex. 1990); Kukis
v. Ne wman , 123 S.W. 3d 636, 639 (Tex. App.

— Hou sto n [14 th Dist.] 20 03, no p e t.).
The existenc e of a duty is a quest ion of la w fo r the court to dec ide fro m facts surrounding th e occurrenc e in question

. Gator Gone Safety Pilo ts v. Holt
, 622 S.W.3d 524, 536 (Tex. App.

— Houston [ 14th Dist.] 2021, no pet.) ; F inley v. U

-13

H aul C o. of Ari z. , 24 6 S.W.3d 185 , 187 (Tex

. App.

— Houst on [14th Dist .] 2007,

no pe t.).

When the trial court submi ts a neglig ence question to the jury, the cou rt h as implicit ly co ncluded that a duty exists

— a decis ion we revie w de novo

. Ga tor Gone Safety Pilo ts , 622 S .W.3d at 536. App ellants cha llenged thi s i mplied fin ding
in their JNOV motion, thus preserving the issue for a ppellate review. See, e.g. , id

.

a t 53 6 n.6. In th e following analyses, we examine whethe r the evidence is legally
suf ficie nt to suppor t this implied fi nding

. B. Evi d entiary Ba sis: Diamond Drill ing Appellant s contend that “ th e record does not support Bla ck ’ s effort to cobble together a duty ” owed b y Di amo nd Drilling to Black. In response, Black argues that D iamond Drill ing “ owe d duties to Black as his em pl oyer and t he employer of
his fellow crew members. ”

1. Applicable Law and Standard of Review

“ Texas la w generall y imposes no duty to take action to pre ven t harm to others absent certain special r elationships o r circumstan ces

. ” T orrington Co . v. Stutzman , 46 S. W .3d 82 9, 837 (Tex . 20 00) ; Kuentz v. Cole Sys. Grp ., Inc. , 541
S .W.3 d 208, 213 (Tex. App.

— Houston [14th Dist .] 2017, no pet.). On e such

s peci al r ela tionship is that between e mployer and emp loyee. Verinakis v. Me d.
Pro files , Inc. , 987 S.W.2d 90, 97 ( Te x. A pp.

— Ho uston [14th Dis t.] 1998, pet. denied).

Th e Texas suprem e co urt has held that employers i n Texas owe certain
continuous
, non

- delegab le dut ies to their emplo yees. Far ley v. M M Cattl e Co. , 529 S.W.2d 751, 754 (T ex. 1 975), abroga ted on other gr ou nds by Par ker v. High land Park, Inc. , 56 5 S.W.2d 512 (Tex. 1978); s ee a lso Kroger Co. v. Milanes
,14

47 4 S.W.3d 32 1, 335 (Tex. App.

— Ho uston [14th Di st.] 20 15, no pet .). Included among these are t he duties to (1) furnish a re asona bly safe wo r kplace; (2) war n empl oyees of hazards of t heir employmen t that are not commonly know n or already appreciated; (3) su p ervise empl oyees ’ activities; (4) hire compet ent co

em ployees; ( 5) fu rnish reasonably safe in strumentalities with which to work ; and ( 6 ) pr ovide safet y re gu lati ons. Kroger Co. , 47 4 S.W.3d at 335 (citing Cent. Ready
Mix Con cret e Co. v. Islas , 228 S.W.3d 64 9, 652 & n. 10 (Tex. 2007 ); Farley
, 529
S.W.2d at 75 4). An employer also has the duty to trai n employees in “ the safe u se and handling of p roducts and equ ip ment u sed in and arou nd a n employer ’ s
pr emises or fac ilities. ” Id

. An employer has t he duty to use ordinary c a re, based on standard negligence pri n ci ples, in carrying out these duties. Leitc h v. Hornsby
, 935 S.W.2d 1 14, 117 (Tex. 1996) ; Kroger Co. , 47 4 S.W. 3d at 335

. Howe ver, a corporation generally is not liable for the negligence of someone
who is not it s em ployee. Serv

. Corp. Int ’ l , 348 S. W. 3d a t 22 8; Ross Stores, Inc. , 612 S.W.3d at 6 8 8. Accordingly, to warran t t he i mposition of these duties
, t he
record mu st contain legally suff icient eviden ce to support a fi nding of an employment relationshi p between Dia mond Drilling a nd the actors in vol ved in this
incident

. See, e.g. , Serv

. Corp. In t ’ l , 348 S.W.3d at 229

- 31; Ro ss S tores, Inc. , 612
S .W.3d at 6 88

- 90.

Evide nce is lega lly insu fficient whe n “ ( a) t here is a c om plete absence of
evid ence of a vit al fact , (b) th e court is barred by rules of law or of evidence from gi ving weight to the only ev idence offered to prove a vit al f act, ( c) the evidence

o ffe re d to prove a vital fact is no m ore than a me re scintilla, or ( d) the evide nce

con clusively est abli shes t he opposi te of the vital fact. ” Serv

. Corp . Int ’ l , 34 8
S.W.3d at 228 (internal quotation o mitted). Evidence is more th an a scintilla if it

“ rise s t o a level that would enabl e reaso nable and fai r

- minded pe opl e to differ in15

their conclusions. ” Ford M otor Co . v. Ri dgway , 135 S. W.3d 598, 601 (Tex. 2 004). If, h owever, the evidence does no more th an create a m ere surmise o r s usp i cion
and is s o slight a s t o necessarily make any in ference a guess, then it is no evid ence

. Id

. 2. Relevant Evidence

Th e jury he ar d testimony f rom Daryl Tanker sl ey, who w as work ing as a safety department representative and me dic on the Ocean Valiant a t t he t ime of
Black ’ s injury. Ta nk er sley previ ously had b een depo sed as the co rporate
repres enta tive for the Diamond entities involv ed in the suit, including Diamond Drilling

. Accor ding t o Ta nkersley, he was wor king for Diamond O ffshore Services
Limited a t t he t ime of Black ’ s injur y. Disc ussing the D iamond ent i t i es ’ corporate

structure , Tankersl ey agreed that he worked for Diamond Drill ing “ at least in some capacity. ”
Tankersley tes tified generally about Diamond Drilling ’ s involv ement with
the O cea n Val ia nt and the activitie s cond ucted the reon

. Tanke rsley revi e wed the ship ’ s daily d rilling repor t for January 2, 2015, the date o f Black ’ s injury

. T he

rep ort states that D iamond Drilli ng is the “ contractor ” and does not include any

o ther “ contractors

. ” Blac k i s li ste d as an em ployee on the d aily dri llin g rep ort ; t he report st ates that Black was not injur ed on this “ tour

. ” Tanker sley agreed that thi s

s tate ment was “ false. ”
Tankersley a lso re viewed a daily drilling report dated one w eek before
Black ’ s injury

. T his daily drillin g report also l ists Diam ond Drilling a s the ship ’ s sole “ contra ctor

. ” Tan kersley agreed that he h ad not se en “ any documents to

s uggest that ther e were any other Diamon d Offshore entities located on the Ocean16

V aliant on January 2, 2015 [,] oth er t han Diamon d O ffshore Dril l ing, Incorpora te d. ”

F in ally, Tanke rsley reviewed the “ Injury/Illness Incident ” repo rt completed on the day of Bla ck ’ s injury

. The report lists “ Di amond Offshore ” as the “ Client

. ”
The “ Superviso r ” listed on t he report ha s a Dia mond Drill i ng email addre ss.
Describin g the dut ie s he perfor med as the Ocean Vali ant ’ s safet y de partment
repr esentative , Tanker sley s aid he did “ lots of d eck surveys ” and “ w ork[ed ] with the shipyard personnel, ver ifying t hat they were following ou r p olic ies and

pr o cedures. ” Tan kers ley agreed that h e was respons ible for “ ho us ekee ping ” and

“ wa nt[ed] to make sure t hat everything is put up and p roperly stored

. ” Tanker sley
testi fied t hat the ship ’ s hazardous che mical storage was undergoi ng work so “ mo st of t hose chemi c als were remov ed ” and some ch emical s “ we re kept at t he point o f

us e in an authorized area , personnel only area. ” When asked wheth er the ship ’ s crew was in formed th at cer tain hazar dous che micals would be moved fr om their usual storage are a, Tank ersley sai d it “ would hav e probably been just discu ss ed in meetings ” but he d id not “ recall the spec ifics. ”

On e o f th e hazardous chemicals m oved from its usual storage area w as the
A l fa Neutra bucket Black sat on while work ing . Tankersley ag re ed th at the
AlfaNeutra “ was be ing im p ro perly stor ed at the time ” of Black ’ s injury.

Tanker sley treated Black shortly after h is injury. Tankersle y said B lack was transported to a local ho spi tal “ a n hour or so after the initial incident

. ” According
to Tank ersle y, Blac k retur ned to th e sh ip wi th a re l ease to work. Bla ck returned to his regu lar duties and T ankersley assi ste d him with changing hi s bandages a nd apply ing wound cream per doctor ’ s ord ers. Tankersley also was involved in the i nvestigation of the incide nt.17

Ta nker sl e y s aid th e investi ga ti on was “ nev er able to determine who was t he on e

— who actually was the l ast on e to use ” the Alfa Neutra bucket th at Black sat on

. Tank ersley said he “ be l ieve[d] that an employee was responsible for not storing the
chemic als pro per ly

. ” B ut Tankersley c ould not id enti fy which D i amo nd entity this

e mp loyee would have worked fo r. Referring to the Diamond entities ’ co rp orate
structure, Tankersley s aid he did not “ understand how that works. ”

Th e investigation also was a ssi ste d by Clyde Reeve s, t he hea d of Black ’ s de partment an d to whom B lack rep orted

. Tankersley was unsure which Diamond
entit y Reeves worked for an d e xplained that he “ d[id]n ’ t know who g ets paid from
what area and who work s in

— for what individual entit y

. ” T a nkersley agreed tha t
Reev es ’ s email addr ess “ is an email addre ss f or Diamond Offshore Drilling,
Incor porat ed. ”

Tanker sley revie wed the i nve sti gative report created after the incid ent

. According to th e report, the “ root c ause s ” of the incident w er e: “ i m proper storage of h azardo us chemica ls as it p er t ain s to the ph ysic al loca tion in proximity of the
work area ” ; “ improper storage of h azar dous c he micals in relation to adequatel y

secu ring the cap after us e ” ; and “ inade quate h azard identification prior to st a rting the job d ue t o com p lac ency. ” Tank ersley a lso said Black was “ the area supervisor
for that area ” and was “ respons ible for maintainin g t hat area and responsible for
knowi ng wha t chemicals were in t hat area and for also under stan ding having
clea rly ma r

ked containers and the co ntents the reof

. ”

Duri ng this line o f in quiry, a portion of Tanker sley ’ s previously recorded dep osition was played into evi dence . Tanker sley was ask ed, “ S o it ’ s not uncommon for a mechanic to si t on a bucket or some other pie ce o f equ ipment in
ord er t o a ccess the e quip ment the y ’ r e w orkin g on? ” Tanker sley res pond ed,

“ Correct

. ”18

Tankersley said that , during his invest iga tion of th e inci den t , he did no t see any connections to Diamond Bermuda. Tanke rsley said he did not main t ai n a

“ str ong line of co ntac t ” with any one in Bermuda nor ha d he eve r bee n to Bermuda.
Tan kersley did not know if Diamond Drill ing maintain ed a n o ffice in Bermuda.
Tan kersley agre e d tha t he maintained “ a strong line of cont act ” with Diamond ’ s corporate hea d qua rter s in Housto n

. Tank ers ley said Diamon d Bermuda w oul d not have ha d any control over how ha zardous chemical s would be sto red on the Ocean V a liant. Tankersley sai d
this would be ma naged “ b y the ri g. ”
The j ury also h eard from Karen Roll, a senior hum an r esou rces busine ss part ner at “ Diamond Of

fshore. ” A cco rding to Roll , part of her job inc l uded hiring and firing employees. Roll said she had spent 23 years workin g for Diamon d
Offs hore in its Houston office. Roll agreed t hat this location is liste d o nlin e as Diamond Dr ill ing ’ s H ouston head qua r ters. Roll sa id she had ne ver been to
Be rmud a nor had she made contact with any on e from Diamond Ber m uda ’ s office.

Roll reviewed the employ ment contract Black signed in 2008 with Di amond
Bermuda . Roll agree d t hat she signed the employm ent contrac t in he r capac ity as Diamond Drilling ’ s “ representa tive

. ” Roll f ur ther agreed that the pap erwork for
Black ’ s hiring was comp leted in the Hous ton of fice.

Roll al so reviewed two of Black ’s tr aining certi ficates , both of w hic h state
the tra ining was completed with “Diamond Of fshore Drilling, In c. ” The first
certificate i s for “Safety Lead ership ” and was completed in July 2009. The second
certifi cate i s for “Manual Handling ” and was completed in May 2014. Roll agreed
tha t D i amond Drilling “ trained M r. Black k ind o f through ou t his career with Diamond, based o f

f these doc u ments. ” Roll said she had not seen any doc um ents suggesting Black was traine d in B ermuda.19

Rol l also emailed Black regardin g his termination in Jul y 201 5

. Roll ’ s email

to Black ins tructed him to direct any que stions to a se p arate employee with a
Diamo nd Drill ing email add ress. Roll ’ s sign ature line on the email stated that she

was a Diam ond Drilling employee.
According to Black ’ s testimony, he star ted wor king with the D i amond

ent ities in 2008. During t he hiring proc ess , Black said h is point of cont act was Roll in the Houston o f

fice

. B la ck te stified that
, at the time of the i nciden t , his immediate supervisor was Reeves, an employee of Diamond Drill ing

. B lack said
he to ok his wor k orders from R eev es and, o n the day o f the incident , Reeves assigned Black to work on th e water mak er

. According t o Black, the water maker
is a piec e of e quipment that “ convert[s] seawater to drin king water and fresh

wa ter

. ” Bla ck said the wat er maker w as located in t he ship ’ s a uxiliary machine

room. Turning to the da y of the incident
, Black sai d he was not told th ere would be
hazardous chem icals i n the auxiliary machine room

. Black also said h e was not told to look for ha zard ou s c hemica ls n or did he ex pect any to b e locat ed i n the auxiliary machine room

. Ac cording to Black, “ [t]here actually shoul dn ’ t have
been a ny hazardous chemical s in that are a. It ’ s not an are a where they should be
stored

. ”
Further describing hi s w ork on the water ma ker
, B lack said “ the part s that [he] was worki ng on were ac tually down re ally low, below knee level. ” Black s aid that, as par t of his training with Diamon d D ri lling, he learned about safe posture and lifting techniques. Black said t he Alfa Neutra bucket w as loca ted “ right
beh ind ” him so he “

just sat down ” on it . Black reca lled that he s at o n the bucket
for a bout 10

- 15 minut es b efore he felt the AlfaNeutra so aki ng thr ough h is
coveralls.20

Bla ck said Tankersle y treated his injury before he was transport ed of f the ship. Black then wa s taken to a “ local clinic ” where he “ had to wait f or quite a bit ”
be fore he was seen by a doctor. B lack said his burn was treated wit h crea m and a dressing was applied

. Black retur ned to the ship and we nt b ack to work the same
d ay. Black continu ed to w or k over th e next sever al days a s his pain worsened

. Black said t he p ain became “ unbe arable ” and he r eturned to the ship ’ s medic. The medic offer e d to take Black back to the “ local c linic ” but Black

“ wanted t o g o an d see someone t hat k new s omething about bu rns to ge t it looked at
and treated properly. ” B lack returned to t he U nited Kingdo m and saw his lo cal doctor, who diagno sed Black ’ s injury as a third

- degree che mical burn. Black

u nderwent an immediate skin gr aft surgery and rem ained in t he hospital for a week.

Tu rning t o his relationship with Diamond Berm ud a, Black sa id he had neve r be en to Bermuda, n ever spo ken with anyone in Bermuda , nor received any training
in Bermuda. Black s a id he had only traveled t o H oust on for training

. Finally
, Appellants ca lled David Ellingburg to te stify as a corporate

re presentative. Elli ngburg said the purpo se o f Diamo nd Drilling is to own various
sub s idiari es of Diam ond Offsh o r e. Elli ng burg said D iamond Drilling has no

emp loy ees. Ellingburg e xp lained t ha t one of Diam ond Drillin g ’ s subsidiaries is
Diamond Bermuda . Ellingburg des cribed Diamon d Bermuda as a n “ e mployme nt subsidiary ” that empl oys “ third count ry nationals ” like Black. Acco rding to
El lingburg, the U nited State s c itiz ens working on the Ocean Valiant w e re21

em ployed by a separate subsidiary: Di amond Offshore Services Limited. 5

3. Application

H ere, the recor d co ntains evidence sufficient to su pport the trial court ’ s implied finding that a n em ployme nt relationship ex ist ed b etween Diamond Drilling

a nd the ac tors i nvolved in th is incident

. Specifica lly, the evidence su mmarized
above s hows:

• Ro ll signed Blac k ’ s 200 8 employment cont ract in her capac ity as a D iamond Drilling representative.

• Blac k co mp leted safety leaders hip and manual handlin g training with Dia mond D rilling in Houston

.

• During his Dia mond emplo yment, Black had not visite d or spo ken with anyone in Ber muda. Black traveled only to Hous ton fo r training.

• On the daily drilling rep ort s completed a week before and on the day of the incident
, D iamond D rillin g was liste d as the Ocean Valiant ’ s

“ contractor , ” and the daily drilling rep orts d id not list any other

c ontractors

.

• Tanker sley was emp loye d at least in some capacity for Diamond Drill ing

. At the time of the i n ci dent
, Ta nkersley w orked on th e Ocean Vali ant as a safet y dep artment r e presentative and medic.

• T ankersley performed “ housekeeping ” duties on the sh ip, which included “ mak [ing ] s ure that everything is put up and properly stored

. ”

5 Durin g the charge conference
, the parties and the trial court had a lengthy discussio n ab out Diamon d Offsh or e Servi ces Limited

. According to Black ’ s c ounsel, Black wa s firs t informe d of this subsi di a ry ’ s existen ce during Ellingburg ’ s testimony. Pointin g to Ap pellants ’ responses to reques ts for d isclosure and in terrogat or ies, Bl ack ’ s coun sel asse rted that App el lants d id not disclose this entity ’ s exi ste nce as a potentia l par ty or an en tity that “ ca us e d o r contrib uted ” to the incident in any way. In its ruling o n this objection, the trial court i ncluded in the jury charge a paragraph stat ing that
, “ Diamond Of fs hore Se rvi ces Limited and Diamond Offsho re Drilling (Bermuda ) are sub sidia ri es of Diamond O f fs hore Drill ing Incorporated

. ” Black ’ s counsel emphasized th is instruction in his closing argumen t and stated t hat Diamond Bermuda an d Diamo nd O f fsh ore Services Li mited “ are to be held responsible as any su bsidiaries ” of Di amond Drilling

.22

• Ta nkersley was aware t ha t s ome hazardous c hemicals we re removed f rom their usua l sto rage area on the Ocean Valiant, including the b u cket of Al faNeutra Black sat on.

• On the day of his injury, Black said he was not told to look for any hazar dous ch emi cals in his workplace nor d id h e expect any to be located in the auxiliar y machine r oom

.

• Tanker sley pro vided care to Black immedi ately after his injury and before he was transported off the ship.

• Tankersley was involved in t he investigat ion of B lack ’ s in jury an d concluded tha t an em pl oyee on the ship was respon sible for the i mprope r sto rage of the Alfa Neu tra

. According to Ta nkersley
, the investigation was not able to iden tify who this employee was or which Diamond entity the employee worked for

.

• Clyde Re eves, Black ’ s supervisor, a ls o part icipated in t he investi gati on . Reeves had a Diam ond Drilling email address and Black testified that Reeves w orked for Diamo nd Drilling. Reeves instructed Black to work on the water ma ker on the day of the incident

.

• D ur i ng the incident ’ s investig a ti on , no connections were made to Diamo nd B erm uda.

• The su pervisor listed on Black ’ s injury r eport had a D i amond Drillin g email address.

• When Roll subseq uently emailed Black regarding his termi n ation, Roll directed Black to c ont act a Diamond Drilling emp l oy ee with any questi ons he had about be nefits. Roll ’ s si gnature line on thi s email also identified her as a Diamond Drilling employee. Considered tog ether, t his evidence shows t hat D iamond Drilli ng assumed

res ponsibility as t he con tractor for the Ocean V a li an t and employed, at least in

some capacity, the crew m embers. Various cr ew members were involved in all pertinent aspects o f the incident, including : (1) ensuring hou sekeeping po licies and pr ocedures were followed on the shi p , (2) failing to ensure t h os e procedures

were follow ed wi th re spect to t he AlfaNeut ra bucket Black sat on , ( 3 ) instruct ing
Black to work on the water make r, ( 4 ) treat ing Black ’ s injury
, and ( 5 ) investigatin g23

the inciden t. More broad ly, the e vidence sh ows Diamo nd Drilling represen t at iv es participated in Black ’ s hi ring
, trainin g, and term ination . The evide nce does not
show this level of invo lvement for any other Diamo nd entity, including Diamond
Bermuda and Diamond Offsh ore Service s L imited. Accordingl y , the record
contains eviden c e su fficient to supp ort the tr i al court ’ s i mpl ied finding o f an

em ployme nt r elationship as necessary to impose a duty of care upon Diamond Drilling

. See, e.g. , Serv

. Corp. Int ’ l
, 348 S.W.3d at 229

- 31; Ross Stores, Inc. , 612
S .W. 3d at 688

- 90.

Chal lenging th is conclusion, Ap p ellants l ik en the evide nce presented here to that deemed insufficient to support the finding of an employment relationship in Service Corporation International , 348 S.W.3d a t 229

- 31, and Ross St o res, Inc. , 612 S.W.3d at 688

- 90

. But in those cases, t he e viden ce t ying th e paren t c orporation to the relevant
fact s and a ctors underlying the negligence claim were slight compared to the evidence in the present case

. See Serv. Corp. I nt ’ l
, 348 S.W .3d at 2 2 9

- 31 ( evidence included sta t ements fro m wor kers that the y wor k ed for “ SCI ” and the

“ SC I ” l ogo pri nted on person ne l paperwork
, both of which w ere consistent with employmen t with either th e parent or subsidiary corporation ); Ross Stores , Inc

. , 612 S .W.3d at 688

- 9 0 (evidence included m a nager ’ s st atem e nt that all s ubsid i ary employees also w ere e mploye e s o f the parent corporation ; bottom of each page of employee handbook had a footer stating
, “ [ parent corporation ’ s] HR Policy
Handbook ” ; and a stateme nt in a lette r to the plain tiff stating that “ We a t [parent corporat ion] are s o rry to hear you were inj u red at wor k. ” )

. Here, the relevant
evidence rises well above the level of that examined in Service Corporation
International and Ross Stores, Inc. Acc ordingl y , these cases do not control our

a nal ysis.24

F urthe r, this evidence a l so is legally suffic ient to sup po rt th e jury ’ s find ing
that Diamond Drilling breached its duties to Black. A s se t out abo ve, employers in
Texas owe certain duties to the ir em ployees and are requir ed to use ordinary c are in carry ing out these du ties. Se e Farley , 529 S.W.2d a t 7 54; Krog er Co. , 47 4
S.W. 3d at 335

. The evidence is legally sufficient to show that Diamon d Drillin g breached certain duties , including th e dut ies to ( 1) furnish a r easonably safe workp lac e, (2) warn employ ees of h azards o f their em ployment that a re not

c ommonly k nown or already appreciated
, (3) supervise employees ’ activities, (4) hire compete nt co

- employees
, and (5) furnish reasonably safe inst rumental ities
with whi ch to work. See Kro ger Co. , 47 4 S.W.3d a t 3 35

. Therefor e, w e over rule Appellants ’ evid entiary suf ficienc y challenges with respect to D iamond Drilling.

C. Evidentiary Basis: Diamond Rig Appellants also cont end that “ [t]his record provi des no basis for a duty

ru nning from Diamond R ig to Black or a det ermin ation th at Diamond Rig breached any suc h duty. ” I n resp o nse, Bla ck asserts that “ Diamon d Rig owed
duties to Black as the owner of the vessel on which his i njuries occurred. ”

Black ’ s ar gument is premise d on th e doct rine of unsea w orthiness , which

pro vides a cause of action for injuries resulti ng from def ects o r insuffi ciencies of a vessel, its crew, or its appurtenances that undermine the vessel ’ s seaworthin ess. See Rigdon Marine Corp. v. Rober ts , 270 S. W.3d 220, 2 27 (Tex. App.

— T exarkana 2008, pet . d enied ) ; see a lso Briste r v. A .W.I., Inc. , 94 6 F.2d 350, 3 55 (5 th Ci r. 1991) ( “ A shipo wner has an absolute nondelegable duty to provide a seaworthy
vessel. ” )

. A claim for unseawo rthiness ari ses under gene ral federal maritime law

. See Delo me v. Union Ba rge Line Co. , 44 4 F.2d 225 , 228 (5th Cir. 1971) ( “ th e ship owner ’ s w a

rranty o f seaworthiness in personal injury cases is now firmly25

rooted in federal maritime law ” ); se e also Weeks Marine, Inc. v. Garza , 371
S.W.3d 1 57, 163 (Tex. 2012) ( “ [ t]he unsea worthine ss claim

. . . a rise[s] un der general maritime law ” ); Naza reth v. M c Dermott Int ’ l, Inc. , 569 S.W.3d 205, 207 (Tex. App.

— Houston [1 st Dist.] 2018, no pet.) ( “ Under gene ral maritime law, a

seaman injured aboard a vess el may assert a claim f or u nseaworthiness ag ainst the

ves se l o wner. ” ).

But as with the Jones Ac t, certain f oreign seamen are exclud ed from asserting claims under general maritime law

. See 4 6 U.S.C. A. § 301 05( b); see also Nazareth , 5 69 S.W.3d at 207 ( “ Section 30105, however, ex cludes certain for eig n

sea men from asserting claims under either general m ar itime l aw o r the Jones
Act. ” ) . S pecifically, s ection 301 05( b) provides t hat a civil la wsuit for personal injur y damages may not be bro ught under the Jones Act or other federal mar itime
law if three c o nditi o ns are satisfied:
(1) the individual suffe ring t he in jury or dea th was not a citize n or permanent resident alien of the United States at the time of the incident g i ving rise to the action ; (2) the incident occurred in the ter ritorial wat ers o r water s over la y ing t he cont i nental she lf of a country other than the U n ited S tate s; and (3) the individual suffering the injury or death was employed at the time of the i ncident by a p e rson engaged in the expl oration, development, or production of offsho re mineral o r ener gy resou rces, in cluding dr illing, mapping, surv eying, divi ng, pi p el ay ing, maintaining, repairing, constructing, or transporting supplies, equ ipment
, or pe rsonnel, but n o t including transporting those resou r ces by a vesse l constructed or a dapted prima rily t o c arry oil in b ulk in the cargo spaces. 4 6 U .S.C. A. § 3 0105(b)

. Section 3010 5(c) creates t w o exceptions to this exclusion and provides that a

seaman may bring a civil action under general maritime law if he “ establishes that
a remed y is not available u n der t he laws of either ” :26

(1) the country asserti ng jurisd ic tion ov er the area in which the inc ident

occurre d; or (2) the coun try in which the individual sufferin g the injury or de ath maintained citi zenship o r reside ncy at the time of the incid ent.
Id . § 30105 ( c)

. Th e burden is on the plaintiff to establi sh that eit her of section 30105(c) ’ s exceptions apply

. See Johnson v. PPI Tech. Servs., L.P. , 613 F. App ’ x 309, 312 ( 5th Cir. 2015).

The record here con c lusively establishes that sec tio n 3 010 5( b ) precludes
Bla ck fr om pu r su ing a clai m under genera l mar it ime law: B lack wa s not a cit izen or permanent residen t alien of the U nited States when the incident occurred; the
incident occurred i n the terri t orial waters of a country o ther than th e Un it ed S tates; and Bla ck was e mploy ed at the tim e of the incid ent by a company e ngaged in the prod uction of offshore energy resources. See 46 U.S.C.A. § 30105( b). Moreover,
the se same facts were relied upon by Appellants in their oral motion for a directed

ver dict o n B lack ’ s Jones Ac t c laim, which t h e trial co urt granted. Bla ck does not
ch allenge this rulin g on appeal.

Black does not argue and the record does no t show that Black meets either exception listed in section 30105( c). See id . § 301 05( c ); see also Johns on , 613 F. App ’ x a t 3 12

. Moreov er , the r ecord supports th e concl usion that Black had a remedy avai lable under t he laws of the country in which he maintained citizenship, as evidenced by his untimely attempt to apply English law to the substantive legal
is su es in the case. Se e als o Lawr en son v. Glob. Marine, Inc

. , 869 S.W.2d 519, 526 (Tex. App.

—

Texarka na 1993, writ denied) (the pl aintiff could not p ursue a cla im under general maritime law “ when he has a remed y i n Eng land ” ). Accordingly, section 30105(b) precludes Black fr om pursu ing a ca use of
action under general fed e ral mariti me law. See 46 U.S.C.A. § 301 0 5 (b).
Theref ore, Black can not re ly on the doct rine of unse aworthiness to establish a d uty27

owed to h im b y Di a mond Rig

. See W eeks Marine, Inc

. , 371 S .W.3d at 163 ; Naza ret h , 56 9 S.W. 3d at 207 ; see also Cepeda v. Ori o n Marin e C onstr., In c. , 499
S.W.3d 579, 584 (Tex. App.

— Houston [1st Dist.] 2016, pet. denied) ( “ To r ecover fo r unsea worthine ss, [the plaintiff] m ust prov e that the unseaworthy condition of

t he ves sel proximat ely caus ed his i njuries

. But an unseaworthines s claim is not a negl igence claim

. ” ) (emp hasis added)

. Rather, as noted above, Black ’ s “ Notice of I ntent to Rely o n Foreign Law ”

was not timely filed; therefore, Black only may rely on Texa s law to establish a cogni zable le gal bas is for liability with re s pect to Di amond Rig. See Tex. R. Evid. 203; Cal Dive Offshore Contractors Inc. , 4 78 S.W.3d at 921; PennWell Corp. , 123
S.W.3d at 7 64. Under Te xas law, the existence of a duty is a questio n of law for
the c our t to d ecide f

rom fac ts surroundi ng the incid e nt. Se e G ator Gone Safety
Pilots
, 622 S. W.3d at 536; Finley , 246 S.W.3d at 187.

Un like our analys is with respect to Diamond Drilling, the evid ence in the

reco rd does not support the concl usion that Diamond Ri g had an em pl oyment relationship as necessary to impose a duty of care

. Aside fro m owning the Ocean
Va liant, Diamon d Rig did not have any connection to Black or to the rel evant fact s
or actors underlying the incident

. The record shows o nly that Diamond Rig own ed the Ocean Vali a nt at th e time o f Black ’ s incident. At most, t h is relatio nship wo uld support a claim sounding in premises liability. See Occide ntal Chem. Corp. v. Jenkins
, 478 S.W.3d 640, 644 (Tex. 2016) ( “ U nde r premise s

- liability pr inciples, a proper t y

owner generally owe s tho se inv it ed o nto property a duty to ma ke the premis es safe or to warn of dangerous conditions as reasonably prudent under the
circumstances. ” ); see also A ustin v. Kroger Tex. , L.P. , 465 S.W.3d 193, 215

- 17 (Tex. 2 015) ( delineating t he differences bet wee n a c laim s ou nding i n pre mises28

liability a nd a claim fo r the vi olation of a duty arising from an employer

- employee relationship). But the theory of recovery submitted to the jury did not r e flect a

prem ises liability claim and ca nn ot s upport a recovery und er th is the or y

. See
United S caffolding, Inc

. , 537 S.W. 3 d at 480

- 81. Moreover, Black did n ot argue in
the trial court or on appeal that his claim against D iamond Rig sound ed in pr emises
lia bility

. Accordingly, w e agree with Appellan ts that the trial cou rt er red by i mp liedly finding Diamond Rig ow e d a du ty t o Black. We sustain Appellants ’ second issue in part with respect to Diamond Rig.

III. Disposition
A singl e apportion men t question was submitt ed to th e jury, to which it respond ed as follows:

Wha t per c en tag e of the negligence that ca used the occur renc e or in jury do you find to be attributable to each of those found by you to have been negligen t? Answer: Diamon d Offshore Dri lling Inc. 52% Diamon d Rig In vestments Limited 2 8% Will iam B lack 20%

Total 10 0 %

As e xpl ain ed above, a sufficient e videntiar y basi s sup ports the finding s that Diamond Drilling owed a duty to Black and that the duty was breached . Howev er, we also conclu de tha t t he trial court lacked a suf ficient evidentiary b asis to conclude that D i am o nd R ig owe d a duty to B lack under principle s of T exas

c ommon law negligence

. Accordingly, the jury should not have been permitted to consider Diamond Rig ’ s l iability in as signing percentages of responsibility.29

A n analogous si tuati on wa s examined in He rit ag e H ous ing Dev elopment,
Inc. v. Carr , 19 9 S.W.3d 56 0 (Tex. App.

— Houston [1st Dist.] 2006, n o pet.). There, the plaintiff sued a nursing home and its paren t corporation for negligent
care and treatment of her husband. Id . at 562

- 6 3. The jury retur n ed a ve rdi ct fo r the plaintif

f, finding that t he nursing home was liable for 40% of the damages a nd the parent corporation was liable for 45% of the damages. Id . at 564.

O n a p peal, the court reversed the judgment against the paren t corp oration,
concludin g t hat t her e w as legally insufficient evidence to support v icarious liability against the entity. Id . at 570. The court remanded the case and held that, “ [i] f the jury ’ s a ppo rtionment of liability could have been affected by an iss ue o n which the
trial c o ur t cha rge d t he jury but on which there was le gally insuf ficient evidence, a new trial on the entire negligence claim is required. ” Id

. (citing Romero v. KPH
Cons ol., Inc. , 1 66 S.W.3d 212, 230

- 31 (Tex. 2005)). Cont inuing on, the c ourt reasoned : [A] new t ri al is ne ces sar y in this case, because the ju ry reasonab ly could have apportioned liability differently as between [the nursing home] and the remaining defendants if [the par ent corporation] had not been included in the negl igence charg e. .

. . The find i ng of

v ica ri ous liability against [the parent corporation ] was not supported by legally sufficient evidence, and we are not reasonabl y certain that [the parent corporation ’ s] inclu sion in the jury charge did not a ffect the jury ’ s ap port ionment of liabilit y o r the fi nd ing of damages against [the nursin g home], pa rticularly given [the parent corporati on ’ s] contention on appeal that the reason it is not the nursing home employe r i s because [the nursing home] fit s that role.

Id . at 5 71

. We find this reasonin g p ersua siv e. He re too, the jury foreseeably could have

a ppor tioned liability differently between Diamond Drilling an d Black had Diamond Rig not been erroneous ly included in the apportionment question. See id

.30

Accordingly, we reman d t he case for a new t ri a l on the neglig ence claim against
Diamond Dr illing.

A rguing against this disposition, Bla ck con tends that Appellants were required to have made a contempor aneous objecti on to the apportionment question to preserve th eir argument tha t a new trial is re qu i red. Bla ck cit es Emerson
Electric Co. v. Jo h nson , 627 S.W. 3d 197 (Tex. 2021), t o support this contention.

In Emer son Electri c Co. , the jury found the defend ant liable bas ed on a
desi gn defect and a marketing defect. Id

. at 203. The court upheld the d es i gn d e fect findi ng and dec lined t o address th e defendant ’ s challenges to the marketing defect finding because that theory of liability would not have resulted in any greate r relief. Id

. at 210. The defendant argued that the court sho uld address both
li ab i lity th eo ries b ecause the j ury was asked onl y one appor tionment question and its allocation of responsibility might have bee n different based on the type of liability it f

ound. Id

. The court did not address th e substance of this arg ument, noting inste ad that th e defend ant “ never made the trial cou rt timely a nd plainly aware of any Ca steel

- type error in the apportionment question. ” Id

. We are not persuaded either by Black ’ s ar gument or by his reliance on
Emerson Electric Co . A Cas teel

- t ype error occ u rs whe n the trial co urt submits a single broad

- form liabi lity questi on incorporating multiple theories of liabi lity and the appellate court cannot determine whether the jury based its verdict on an invalid theory that was im properly sub mitted

. See Crown L if e In s . Co. v. Cast eel
, 22 S.W.3d 3 78, 388 (T ex. 2000) ; see also Za idi v. Shah , 502 S.W.3d 434, 440 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied) ( “ Ca steel and its progeny are intended to remedy the t rial court ’ s error in failing to eli minate

— or a t l east segregate

— t he factfinder ’ s considerat ion of inva lid claims

. ” )

. Casteel

- type errors must be preserved in the trial court by a timely and s pecific o bjection. See Tex.31

Comm ’ n on Human Rights v. Morrison , 381 S.W.3d 5 33, 536 (Tex . 2012 ) (per
curiam )

. Here , the app ortio nment question did not com mingle mult iple theori es of liability. Rather, the app ortionment question asked the j ury to segregate liab ili ty
among st three separate parties: Diamond Drilling, Diamond Rig, a nd Black. O n
appe al, we conclu de ther e was an insuf ficient evidentiary basis to warrant the imposit ion of liability against Diamond Rig
, an entity the jury found 28 %

res ponsible for the u nd erlying incide nt. Accordingly
, t h is issue cannot be characterize d a s a Ca ste el

- erro r becaus e

w e ar e not presented with a question as to wh ether the j ury ’ s verdict was based on an invalid theory . Instead, we have already c onclude d the verdi ct was based on one (and only one) valid theory of liability, i.e. , general neg ligence. Because the jury f ore seea bly could ha ve apportioned li abil ity dif ferent ly ha d Diamond Rig not been included in the charge, a new trial is w arranted. See He ritage Hous. Dev.,
Inc. , 199 S.W.3d at 571.

C ONCLUSION
In sum, we conclude that Question N o. 1 did not submit an immat e r ial claim
that cannot su pport Black ’ s recover y

. We over rule Appellant s ’ fir st issue.
We overrule in part and sustain in pa rt Appellant s ’ second issu e , conclude a sufficient legal and evidentiary basis supports the im posit ion o f liabi l ity against
D i a m o nd Dri lling
, and c onc lude insuf ficient evi dence suppo rt s the trial court ’ s implied finding that Diamond Rig owed a duty to Black.
We therefore reverse the judgment against Diamo nd Rig and rend er judgment in its favor. Be cause t he jury appo rtioned l i a bility a mong D i am ond Rig and Diamond Drilling , we cannot b e reasonably certain that the inclusion of32

Diamond Rig in t he charge did not affect the jury ’ s findings as to the

app ortionment of liability

. We t herefor e remand the c ase for a new t rial a s to Di a m ond Dri lling

. We need n ot address Appellant s ’ third is sue in light of our disposition o f Appellants ’ second issue.

/ s/ Me a gan Hass a n Justice

Pa n el consist s of Justice s Jewell, Z i mme rer, and Hassa n (Jewell, J., concurring)

.