Reversed and Rendered in Part, Reversed and Remanded in Part, and 

Majority and Concurring Opinions filed June 14, 2022.

In The

Fourteenth Court of Appeals

NO. 14-19-00905-CV

DIAMOND OFFSHORE DRILLING, INC. AND DIAMOND RIG 

INVESTMENTS LTD., Appellants

V.

WILLIAM BLACK, Appellee

On Appeal from the 281st District Court

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 on board 

a mobile offshore drilling unit docked in Spain. Black sued appellants Diamond 

Offshore Drilling, Inc. (“Diamond Drilling”) and Diamond Rig Investments

Limited (“Diamond Rig”) (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 with respect 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 question on 

liability; (2) the legal and evidentiary bases for liability with respect to each 

Appellant; and (3) the sufficiency of the evidence supporting the damages assessed

for Black’s future medical expenses. For the reasons below, we reverse the trial 

court’s judgment, render judgment in part, and remand the case in part for further 

proceedings in accordance with this court’s opinion. 

BACKGROUND

Facts

Black is a citizen and resident of the United Kingdom. Black was injured on 

January 2, 2015, while working as a mechanic on board the Ocean Valiant, a 

mobile offshore drilling unit. As Black was working on a piece of equipment 

located below knee level, he sat on a bucket containing a caustic cleaning chemical 

called “AlfaNeutra.” The bucket’s lid was not completely fastened and, when 

Black sat down, the AlfaNeutra leaked out and soaked through Black’s clothes. 

Shortly after, Black started to feel a burning pain on his right buttock. 

Black initially was treated on the ship by Daryl Tankersley, a safety 

department representative. Black then was transported to a local hospital, where 

his wound was dressed. Black returned to the ship the same day and continued

working.

Over the next several days, Black’s pain continued to worsen. Black 

returned home to the United Kingdom and visited his local doctor. Black’s injury 

was diagnosed as a third-degree chemical burn and he was scheduled for a skin 
3

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

surgery. Approximately five months later, Black’s employment was terminated as 

part of a planned reduction-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 signed a written employment agreement with 

Diamond Offshore Drilling (Bermuda) Limited (“Diamond 

Bermuda”). This agreement required Black to bring any claims 

against Diamond Bermuda “in the courts of Bermuda.”

• Diamond Bermuda is an “employment subsidiary” of parent 

corporation Diamond Drilling. Diamond Bermuda employs thirdcountry nationals like Black. 

• Diamond Offshore Services Limited is another “employment 

subsidiary” of parent corporation Diamond Drilling. Diamond 

Offshore Services Limited employs United States citizens. 

• Diamond Drilling maintains its office in Houston, Texas and has no 

employees. 

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

• Diamond Rig is a wholly-owned subsidiary of Diamond Drilling. 

Like Diamond Drilling, Diamond Rig has no employees. 

• The seamen working on the Ocean Valiant at the time of Black’s 

injury had employment agreements with Diamond Bermuda and 

Diamond Offshore Services Limited. 

Legal Proceedings

In December 2015, Black sued Diamond Drilling and two other Diamond 

entities,1asserting claims under the Jones Act, the general maritime law of the 

United States, and the laws of the United Kingdom. In his first amended petition, 

1 Specifically, Black also asserted claims against Diamond Offshore Drilling, Limited 

and Diamond Offshore General Company. Diamond Drilling is the parent corporation of both

entities. 
4

Black added Diamond Rig and Diamond Bermuda as defendants. 

The defendants moved to dismiss Black’s suit based on the forum selection

clause in his employment agreement with Diamond Bermuda and the trial court 

granted the defendants’ motion. This court reversed and remanded, holding that 

the non-signatory defendants — i.e., all defendants other than Diamond Bermuda 

— were “not parties to or otherwise within the scope” of the employment 

agreement, that Black’s claims against the non-signatory defendants “do not arise 

from the Agreement,” and those claims are based on statute and common law. See 

Black v. Diamond Offshore Drilling, Inc., 551 S.W.3d 346, 353, 355 (Tex. App.—

Houston [14th Dist.] 2018, no pet.).

On remand, the defendants filed two motions for summary judgment. In 

their first motion, the defendants requested that the trial court dismiss Black’s

claims against Diamond Drilling and the two other Diamond Offshore entities “as 

they neither employed [Black] . . . nor owned the rig to which he was assigned.” 

In their second motion, the defendants sought the dismissal of Black’s Jones Act 

and general maritime law claims. The trial court denied both motions. 

The parties proceeded to a four-day jury trial. Before closing arguments, the 

trial court granted a directed verdict on Black’s Jones Act claim. The jury returned 

a verdict finding that Diamond Drilling, Diamond Rig, and Black were negligent

with respect to the incident. The jury apportioned liability as follows: 52% to 

Diamond Drilling; 28% to Diamond Rig; and 20% to Black. The jury assessed

$2.75 million in damages. The trial court signed a final judgment on August 20, 

2019, awarding Black $2.2 million in damages. 

Appellants timely appealed.
5

ANALYSIS

Appellants raise three issues on appeal and contend that (1) jury charge 

Question No. 1 submitted an immaterial claim that cannot support Black’s

recovery; (2) there is neither a legal nor evidentiary basis to support the imposition 

of liability as to either Appellant; and (3) the evidence is insufficient to support the

$1 million assessed as damages for Black’s future medical care expenses. 

We overrule Appellants’ first issue and conclude that the alleged error in the 

jury charge did not render Question No. 1 immaterial. We overrule in part and 

sustain in part Appellants’ second challenge and hold that (1) a sufficient legal and 

evidentiary basis supports the imposition of liability against Diamond Drilling, and 

(2) an insufficient evidentiary basis supports liability against Diamond Rig. In 

light of this disposition of Appellants’ second issue, we need not reach Appellants’

third issue.

We develop these issues more fully below.

I. Question No. 1

In their first issue, Appellants contend that Question No. 1 submitted a Jones 

Act claim that is foreclosed as a matter of law because the phrase “proximate

cause” was omitted and replaced with “cause, in whole or in part.” Specifically, 

Appellants contend that the absence of the phrase “proximately caused”

automatically incorporated the “featherweight” causation standard utilized for

Jones Act claims. See Noble Drilling (US) Inc. v. Fountain, 238 S.W.3d 432, 439-

40 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“Under the Jones Act, a 

seaman is entitled to recovery if his employer’s negligence is the cause, in whole 

or in part, of his injury. . . . The burden to establish causation under the Jones Act 

has been termed ‘featherweight.’”).
6

Appellants liken this situation to that analyzed in United Scaffolding, Inc. v. 

Levine, 537 S.W.3d 463 (Tex. 2017). There, the plaintiff sued the defendant after 

he slipped on a piece of plywood and fell through a scaffold. Id. at 467. The 

parties proceeded to trial and the plaintiff’s claim was submitted to the jury as a

general negligence claim. See id. at 469. But after considering the plaintiff’s 

injury, his pleadings, his allegations, and the evidence presented at trial, the

supreme court held the claim sounded in premises liability. See id. at 469-79. 

Concluding that “the theory of recovery submitted to the jury did not reflect the 

claim that was raised by the pleadings and the evidence,” the court held that the 

jury’s general negligence finding could not support recovery in a premises defect 

case. Id. at 480-81.

Similarly, Appellants contend that the alleged error in Question No. 1 shows

that Black submitted a Jones Act claim that cannot support his recovery. We 

disagree. 

First, the question submitted here did not omit a specific element necessary 

to support Black’s recovery under a general negligence theory. “The elements of 

negligence are a legal duty, breach of that duty, and damages proximately caused 

by the breach.” Hernandez v. Gonzalez-Flores, 530 S.W.3d 253, 256 (Tex. 

App.—Houston [14th Dist.] 2017, pet. denied). Each of these elements 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 No. 1. See also United Scaffolding, 

Inc., 537 S.W.3d at 480-81 (noting that the elements of premises liability were not 

submitted as “instructions or definitions”).

Under these circumstances, the omission of the phrase “proximate cause”
7

from Question No. 1 did not submit another or wrong theory of liability to the jury; 

instead, it constituted (at most) “an independent 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. 05-17-

01457-CV, 2019 WL 3955765, at *5 (Tex. App.—Dallas Aug. 22, 2019, pet. 

denied) (mem. op.) (the defendant was required to object to the jury charge 

because his “complaint is with the wording of the question and whether it should 

have tied diligence to the filing of the lawsuit instead of prosecuting the claim”); 

Free v. Lewis, No. 13-11-00113-CV, 2012 WL 3242090, at *8 (Tex. App.—

Corpus Christi Aug. 9, 2012, no pet.) (mem. op.) (the defendant was required to 

object to the charge to preserve his complaint that the jury question omitted one of 

the elements necessary to support a breach of contract claim). Here, Appellants 

did not object to the alleged error in Question No. 1, and the failure to do so waives 

the complaint Appellants assert on appeal.2 See Tex. R. Civ. P. 274, 279; see also 

Chang, 2019 WL 3955765, at *5; Free, 2012 WL 3242090, at *8.

Second, we have carefully examined the charge at issue and compared it 

with the Fifth Circuit’s pattern instruction for Jones Act claims.

3

 These pattern 

2

In his concurring opinion, Justice Jewell asserts that Appellants “do not challenge the 

omission of proximate cause from the negligence 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 that this is how Appellants attempt to frame the argument 

raised in their first issue. However, because the thrust of Appellants’ issue challenges the 

omission of “proximate cause” from Question No. 1, we construe this as a challenge to the 

wording of the question itself — an argument that requires a timely 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 Circuit District Judges Association Pattern Jury Instructions Committee, Pattern 

Jury Instructions, Civil Cases § 4.4 (2014). 

Under the Jones Act, Plaintiff [name] must prove that [his/her] employer 

was negligent. Negligence is doing an act that a reasonably prudent 

person would not do, or failing to do something that a reasonably prudent 
8

jury charges counsel against the conclusion that Question No. 1 submitted a Jones 

Act claim. 

Finally, United Scaffolding emphasized that a theory of premises liability 

required four specific findings in addition to the general negligence elements that 

person would do, under the same or similar circumstances. The 

occurrence of an accident, standing alone, does not mean that anyone was 

negligent or that anyone’s negligence caused the accident. 

In a Jones Act claim, the word “negligence” is liberally interpreted. It 

includes any breach of duty that an employer owes to its employees who 

are seamen, including the duty of providing for the safety of the crew. 

Under the Jones Act, if the employer’s negligent act was the cause, in 

whole or in part, of injury to a seaman employee, then you must find that 

the employer is liable under the Jones Act. In other words, under the 

Jones Act, Defendant [name] bears the responsibility for any negligence 

that played a part, however slight, in causing Plaintiff [name]’s injury.

Negligence under the Jones Act may consist of a failure to comply with a 

duty required by law. Employers of seamen have a duty to provide their 

employees with a reasonably safe place to work. If you find that Plaintiff 

[name] was injured because Defendant [name] failed to furnish [him/her] 

with a reasonably safe place to work, and that Plaintiff [name]’s working 

conditions could have been made safe through the exercise of reasonable 

care, then you must find that Defendant [name] was negligent. 

The fact that Defendant [name] conducted its operations in a manner 

similar to that of other companies is not conclusive as to whether 

Defendant [name] was negligent or not. 

You must determine if the operation in question was reasonably safe under 

the circumstances. The fact that a certain practice had been continued for 

a long period of time does not necessarily mean that it is reasonably safe 

under all circumstances. A long-accepted practice may be an unsafe 

practice. A practice is not necessarily unsafe or unreasonable, however, 

merely because it injures someone. 

A seaman’s employer is legally responsible for the negligence of one of

[his/her] employees while that employee is acting within the course and 

scope of [his/her] [job] [employment].

If you find from a preponderance of the evidence that Defendant [name] 

assigned Plaintiff [name] to perform a task that the Plaintiff [name] was

not adequately trained to perform, you must find that Defendant [name] 

was negligent. 
9

were submitted to the jury.

4

 Here, Black’s theory of liability “was submitted to the 

jury under only a general negligence theory of recovery, without the elements of 

premises liability as instructions or definitions.” Therefore, this verdict could not 

support the plaintiff’s recovery in a premises defect case. See United Scaffolding, 

Inc., 537 S.W.3d at 480-81.

We overrule Appellant’s first issue. 

II. Legal and Evidentiary Bases for Liability

In their second issue, Appellants contend that (1) there is no legal basis for

the imposition of a duty as to either Appellant, and (2) there is no evidentiary basis 

to support the existence or breach of a duty as to either Appellant. We consider 

these arguments separately. 

A. Legal Basis

Appellants’ argument concerning the legal basis of an imposed duty is 

comprised of two parts.

First, Appellants assert that the “jury charge contains no predicate findings 

necessary to establish that these separate and distinct Diamond entities owed a 

cognizable legal duty towards Black under the circumstances in which the Jones 

Act and general maritime law do not apply.” Specifically, Appellants argue that no 

jury findings were requested or made with respect to alter ego, agency, respondeat 

superior, or any other legal theory that could establish a cognizable duty on the part 

4 Specifically, those elements include that the (1) defendant had actual or constructive 

knowledge of some condition on the premises; (2) condition posed an unreasonable risk of harm 

to the plaintiff; (3) defendant did not exercise reasonable care to reduce or to eliminate the risk; 

and (4) defendant’s failure to use such care proximately caused the plaintiff’s personal injuries. 

United Scaffolding, Inc., 537 S.W.3d at 471-72 (citing Corbin v. Safeway Stores, Inc., 648

S.W.2d 292, 296 (Tex. 1983)); see also Comm. on Pattern Jury Charges, State Bar of Tex., Texas 

Pattern Jury Charges: Malpractice, Premises, Products PJC 66.4 (2020).
10

of the Diamond entities separate from Diamond Bermuda, with whom Black had 

signed an employment agreement.

This argument is similar to those analyzed and rejected in Service 

Corporation International v. Guerra, 348 S.W.3d 221 (Tex. 2011), and Ross 

Stores, Inc. v. Miller, 612 S.W.3d 682 (Tex. App.—Houston [14th Dist.] 2020, no 

pet.). In Service Corporation International, the plaintiffs sued a cemetery operator 

and its parent corporation after their relative’s body was moved to another burial 

plot without their consent. 348 S.W.3d at 227. The jury returned a verdict in favor 

of the plaintiffs. Id. On appeal, the defendants challenged the predicate findings 

necessary to support the plaintiffs’ negligence claim and argued the jury charge

failed to “contain a separate question asking if any of the actors were [the parent

corporation’s] employees.” Id. at 228. Rejecting this argument, the court stated

that “[w]hether the actors involved in this case were [the parent corporation’s] 

employees was not an independent ground of recovery; the actors’ status as 

employees was an element of the [plaintiffs’] negligence claim against [the parent 

corporation].” Id. (emphasis in original). The court further held:

When an element of the claim is omitted from the jury charge without 

objection and no written findings are made by the trial court on that 

element then the omitted element is deemed to have been found by the 

court in such manner as to support the judgment. Here there was no 

objection to the charge on the basis that it omitted the element nor did 

the trial court make a finding on it, so there is a deemed finding in 

support of the judgment. 

Id. at 228-29 (internal citations omitted). 

In Ross Stores, Inc., the plaintiff sued the parent corporation of Ross Dress 

for Less, Inc. after he sustained injuries in a physical altercation at work. 612 

S.W.3d at 685. The jury returned a verdict for the plaintiff on his negligence 

claims. Id. On appeal, the parent corporation argued that the evidence was legally 
11

insufficient to support the jury’s negligence finding since the plaintiff was not an 

employee of the parent corporation nor did the parent corporation assume control 

over its subsidiary’s safety policies. Id. at 687-88. In response, the plaintiff

argued that the parent corporation waived this issue by failing to request “a 

threshold fact question ‘calculated to determine the question of duty.’” Id. at 688. 

But as in Service Corporation International, the parent corporation’s argument

focused on an element of the plaintiff’s negligence claim. Id. “[T]here was no 

objection to the charge on the basis that it omitted the element, and the trial court

did not make a finding on this element, so there [was] a deemed finding in support 

of the judgment.” Id. The court proceeded to analyze whether this deemed finding 

was supported by legally sufficient evidence. See id. at 687-91.

Here too, the question of whether either Appellant had a relationship with

the actors in this case sufficient to support the imposition of a duty was an element 

of Black’s claims against Appellants. See Serv. Corp. Int’l, 348 S.W.3d at 228-29; 

Ross Stores, Inc., 612 S.W.3d at 686. There was no objection to the charge on 

grounds that this element was omitted nor were written findings made by the trial

court on this point. Therefore, the omitted element is deemed to have been found 

by the trial court in such a manner as to support the judgment. Serv. Corp. Int’l, 

348 S.W.3d at 229; Ross Stores, Inc., 612 S.W.3d at 686. But as with other 

findings, there must be evidence in the record to support a deemed finding. Serv. 

Corp. Int’l, 348 S.W.3d at 229; Ross Stores, Inc., 612 S.W.3d at 686. In the 

following sections, we undertake this evidentiary analysis separately with respect

to each Appellant.

Second, Appellants argue that Black’s untimely-filed “Notice of Intent to 

Rely on Foreign Law” cannot supply a legal basis for the duty imposed on 

Appellants. Black’s notice sought to apply English law to the substantive legal 
12

issues in the case. Under Texas Rule of Evidence 203, a party “who intends to 

raise an issue about a foreign country’s law must: (1) give reasonable notice by a 

pleading or writing; and (2) at least 30 days before trial, supply all parties a copy of

any written materials or sources the party intends to use to prove the foreign law.” 

Tex. R. Evid. 203. “If the party seeking the application of foreign law fails to 

provide the necessary information to the trial court, there is a presumption that the 

law of the foreign jurisdiction is identical to that of Texas.” Cal Dive Offshore 

Contractors Inc. v. Bryant, 478 S.W.3d 914, 921 (Tex. App.—Houston [14th Dist.] 

2015, no pet.); PennWell Corp. v. Ken Assocs., Inc., 123 S.W.3d 756, 764 (Tex. 

App.—Houston [14th Dist.] 2003, pet. denied). 

Here, Black’s first amended petition invoked English law to govern his 

claims. Specifically, Black pleaded English law claims as an alternative to his 

Jones Act and general maritime claims. But Black’s “Notice of Intent to Rely on 

Foreign Law” was filed four days before trial began, thus failing to comply with 

Rule 203’s thirty-day filing deadline for sources establishing the substance of the 

foreign law. See Tex. R. Evid. 203. Accordingly, Black only may rely on Texas 

law to establish a cognizable basis for liability with respect to Appellants. See Cal 

Dive Offshore Contractors Inc., 478 S.W.3d at 921; PennWell Corp., 123 S.W.3d 

at 764. 

Under Texas law, a plaintiff seeking to establish liability for negligence 

must prove the existence and violation of a duty owed to him by the defendant. 

Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Kukis 

v. Newman, 123 S.W.3d 636, 639 (Tex. App.—Houston [14th Dist.] 2003, no pet.). 

The existence of a duty is a question of law for the court to decide from facts

surrounding the occurrence in question. Gator Gone Safety Pilots v. Holt, 622 

S.W.3d 524, 536 (Tex. App.—Houston [14th Dist.] 2021, no pet.); Finley v. U-
13

Haul Co. of Ariz., 246 S.W.3d 185, 187 (Tex. App.—Houston [14th Dist.] 2007, 

no pet.). 

When the trial court submits a negligence question to the jury, the court has 

implicitly concluded that a duty exists — a decision we review de novo. Gator

Gone Safety Pilots, 622 S.W.3d at 536. Appellants challenged this implied finding 

in their JNOV motion, thus preserving the issue for appellate review. See, e.g., id. 

at 536 n.6. In the following analyses, we examine whether the evidence is legally 

sufficient to support this implied finding.

B. Evidentiary Basis: Diamond Drilling

Appellants contend that “the record does not support Black’s effort to cobble 

together a duty” owed by Diamond Drilling to Black. In response, Black argues 

that Diamond Drilling “owed duties to Black as his employer and the employer of 

his fellow crew members.” 

1. Applicable Law and Standard of Review

“Texas law generally imposes no duty to take action to prevent harm to 

others absent certain special relationships or circumstances.” Torrington Co. v. 

Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Kuentz v. Cole Sys. Grp., Inc., 541 

S.W.3d 208, 213 (Tex. App.—Houston [14th Dist.] 2017, no pet.). One such 

special relationship is that between employer and employee. Verinakis v. Med. 

Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston [14th Dist.] 1998, pet. 

denied). 

The Texas supreme court has held that employers in Texas owe certain 

continuous, non-delegable duties to their employees. Farley v. M M Cattle Co., 

529 S.W.2d 751, 754 (Tex. 1975), abrogated on other grounds by Parker v. 

Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978); see also Kroger Co. v. Milanes, 
14

474 S.W.3d 321, 335 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Included 

among these are the duties to (1) furnish a reasonably safe workplace; (2) warn 

employees of hazards of their employment that are not commonly known or

already appreciated; (3) supervise employees’ activities; (4) hire competent coemployees; (5) furnish reasonably safe instrumentalities with which to work; and 

(6) provide safety regulations. Kroger Co., 474 S.W.3d at 335 (citing Cent. Ready 

Mix Concrete Co. v. Islas, 228 S.W.3d 649, 652 & n.10 (Tex. 2007); Farley, 529 

S.W.2d at 754). An employer also has the duty to train employees in “the safe use 

and handling of products and equipment used in and around an employer’s 

premises or facilities.” Id. An employer has the duty to use ordinary care, based 

on standard negligence principles, in carrying out these duties. Leitch v. Hornsby, 

935 S.W.2d 114, 117 (Tex. 1996); Kroger Co., 474 S.W.3d at 335. 

However, a corporation generally is not liable for the negligence of someone 

who is not its employee. Serv. Corp. Int’l, 348 S.W.3d at 228; Ross Stores, Inc., 

612 S.W.3d at 688. Accordingly, to warrant the imposition of these duties, the 

record must contain legally sufficient evidence to support a finding of an 

employment relationship between Diamond Drilling and the actors involved in this 

incident. See, e.g., Serv. Corp. Int’l, 348 S.W.3d at 229-31; Ross Stores, Inc., 612 

S.W.3d at 688-90.

Evidence is legally insufficient when “(a) there is a complete absence of

evidence of a vital fact, (b) the court is barred by rules of law or of evidence from 

giving weight to the only evidence offered to prove a vital fact, (c) the evidence

offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence 

conclusively establishes the opposite of the vital fact.” Serv. Corp. Int’l, 348 

S.W.3d at 228 (internal quotation omitted). Evidence is more than a scintilla if it 

“rises to a level that would enable reasonable and fair-minded people to differ in 
15

their conclusions.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). 

If, however, the evidence does no more than create a mere surmise or suspicion 

and is so slight as to necessarily make any inference a guess, then it is no evidence. 

Id.

2. Relevant Evidence

The jury heard testimony from Daryl Tankersley, who was working as a 

safety department representative and medic on the Ocean Valiant at the time of 

Black’s injury. Tankersley previously had been deposed as the corporate 

representative for the Diamond entities involved in the suit, including Diamond 

Drilling.

According to Tankersley, he was working for Diamond Offshore Services 

Limited at the time of Black’s injury. Discussing the Diamond entities’ corporate 

structure, Tankersley agreed that he worked for Diamond Drilling “at least in some 

capacity.”

Tankersley testified generally about Diamond Drilling’s involvement with 

the Ocean Valiant and the activities conducted thereon. Tankersley reviewed the 

ship’s daily drilling report for January 2, 2015, the date of Black’s injury. The

report states that Diamond Drilling is the “contractor” and does not include any 

other “contractors.” Black is listed as an employee on the daily drilling report; the 

report states that Black was not injured on this “tour.” Tankersley agreed that this 

statement was “false.”

Tankersley also reviewed a daily drilling report dated one week before 

Black’s injury. This daily drilling report also lists Diamond Drilling as the ship’s 

sole “contractor.” Tankersley agreed that he had not seen “any documents to 

suggest that there were any other Diamond Offshore entities located on the Ocean 
16

Valiant on January 2, 2015[,] other than Diamond Offshore Drilling, 

Incorporated.” 

Finally, Tankersley reviewed the “Injury/Illness Incident” report completed 

on the day of Black’s injury. The report lists “Diamond Offshore” as the “Client.” 

The “Supervisor” listed on the report has a Diamond Drilling email address. 

Describing the duties he performed as the Ocean Valiant’s safety department 

representative, Tankersley said he did “lots of deck surveys” and “work[ed] with 

the shipyard personnel, verifying that they were following our policies and 

procedures.” Tankersley agreed that he was responsible for “housekeeping” and 

“want[ed] to make sure that everything is put up and properly stored.” Tankersley 

testified that the ship’s hazardous chemical storage was undergoing work so “most 

of those chemicals were removed” and some chemicals “were kept at the point of 

use in an authorized area, personnel only area.” When asked whether the ship’s 

crew was informed that certain hazardous chemicals would be moved from their 

usual storage area, Tankersley said it “would have probably been just discussed in 

meetings” but he did not “recall the specifics.”

One of the hazardous chemicals moved from its usual storage area was the

AlfaNeutra bucket Black sat on while working. Tankersley agreed that the 

AlfaNeutra “was being improperly stored at the time” of Black’s injury.

Tankersley treated Black shortly after his injury. Tankersley said Black was 

transported to a local hospital “an hour or so after the initial incident.” According 

to Tankersley, Black returned to the ship with a release to work. Black returned to 

his regular duties and Tankersley assisted him with changing his bandages and 

applying wound cream per doctor’s orders.

Tankersley also was involved in the investigation of the incident. 
17

Tankersley said the investigation was “never able to determine who was the one —

who actually was the last one to use” the AlfaNeutra bucket that Black sat on. 

Tankersley said he “believe[d] that an employee was responsible for not storing the 

chemicals properly.” But Tankersley could not identify which Diamond entity this 

employee would have worked for. Referring to the Diamond entities’ corporate 

structure, Tankersley said he did not “understand how that works.” 

The investigation also was assisted by Clyde Reeves, the head of Black’s 

department and to whom Black reported. Tankersley was unsure which Diamond 

entity Reeves worked for and explained that he “d[id]n’t know who gets paid from 

what area and who works in — for what individual entity.” Tankersley agreed that 

Reeves’s email address “is an email address for Diamond Offshore Drilling, 

Incorporated.” 

Tankersley reviewed the investigative report created after the incident.

According to the report, the “root causes” of the incident were: “improper storage 

of hazardous chemicals as it pertains to the physical location in proximity of the 

work area”; “improper storage of hazardous chemicals in relation to adequately

securing the cap after use”; and “inadequate hazard identification prior to starting 

the job due to complacency.” Tankersley also said Black was “the area supervisor

for that area” and was “responsible for maintaining that area and responsible for 

knowing what chemicals were in that area and for also understanding having 

clearly marked containers and the contents thereof.” 

During this line of inquiry, a portion of Tankersley’s previously recorded

deposition was played into evidence. Tankersley was asked, “So it’s not 

uncommon for a mechanic to sit on a bucket or some other piece of equipment in 

order to access the equipment they’re working on?” Tankersley responded, 

“Correct.” 
18

Tankersley said that, during his investigation of the incident, he did not see 

any connections to Diamond Bermuda. Tankersley said he did not maintain a 

“strong line of contact” with anyone in Bermuda nor had he ever been to Bermuda. 

Tankersley did not know if Diamond Drilling maintained an office in Bermuda. 

Tankersley agreed that he maintained “a strong line of contact” with Diamond’s 

corporate headquarters in Houston.

Tankersley said Diamond Bermuda would not have had any control over

how hazardous chemicals would be stored on the Ocean Valiant. Tankersley said

this would be managed “by the rig.” 

The jury also heard from Karen Roll, a senior human resources business 

partner at “Diamond Offshore.” According to Roll, part of her job included hiring 

and firing employees. Roll said she had spent 23 years working for Diamond 

Offshore in its Houston office. Roll agreed that this location is listed online as

Diamond Drilling’s Houston headquarters. Roll said she had never been to 

Bermuda nor had she made contact with anyone from Diamond Bermuda’s office. 

Roll reviewed the employment contract Black signed in 2008 with Diamond 

Bermuda. Roll agreed that she signed the employment contract in her capacity as

Diamond Drilling’s “representative.” Roll further agreed that the paperwork for 

Black’s hiring was completed in the Houston office.

Roll also reviewed two of Black’s training certificates, both of which state 

the training was completed with “Diamond Offshore Drilling, Inc.” The first 

certificate is for “Safety Leadership” and was completed in July 2009. The second 

certificate is for “Manual Handling” and was completed in May 2014. Roll agreed 

that Diamond Drilling “trained Mr. Black kind of throughout his career with 

Diamond, based off these documents.” Roll said she had not seen any documents 

suggesting Black was trained in Bermuda. 
19

Roll also emailed Black regarding his termination in July 2015. Roll’s email 

to Black instructed him to direct any questions to a separate employee with a 

Diamond Drilling email address. Roll’s signature line on the email stated that she

was a Diamond Drilling employee. 

According to Black’s testimony, he started working with the Diamond 

entities in 2008. During the hiring process, Black said his point of contact was 

Roll in the Houston office. Black testified that, at the time of the incident, his 

immediate supervisor was Reeves, an employee of Diamond Drilling. Black said 

he took his work orders from Reeves and, on the day of the incident, Reeves 

assigned Black to work on the water maker. According to Black, the water maker 

is a piece of equipment that “convert[s] seawater to drinking water and fresh 

water.” Black said the water maker was located in the ship’s auxiliary machine 

room. 

Turning to the day of the incident, Black said he was not told there would be 

hazardous chemicals in the auxiliary machine room. Black also said he was not 

told to look for hazardous chemicals nor did he expect any to be located in the 

auxiliary machine room. According to Black, “[t]here actually shouldn’t have 

been any hazardous chemicals in that area. It’s not an area where they should be 

stored.” 

Further describing his work on the water maker, Black said “the parts that 

[he] was working on were actually down really low, below knee level.” Black said 

that, as part of his training with Diamond Drilling, he learned about safe posture 

and lifting techniques. Black said the AlfaNeutra bucket was located “right 

behind” him so he “just sat down” on it. Black recalled that he sat on the bucket 

for about 10-15 minutes before he felt the AlfaNeutra soaking through his 

coveralls.
20

Black said Tankersley treated his injury before he was transported off the 

ship. Black then was taken to a “local clinic” where he “had to wait for quite a bit”

before he was seen by a doctor. Black said his burn was treated with cream and a 

dressing was applied. Black returned to the ship and went back to work the same 

day. Black continued to work over the next several days as his pain worsened.

Black said the pain became “unbearable” and he returned to the ship’s 

medic. The medic offered to take Black back to the “local clinic” but Black 

“wanted to go and see someone that knew something about burns to get it looked at 

and treated properly.” Black returned to the United Kingdom and saw his local 

doctor, who diagnosed Black’s injury as a third-degree chemical burn. Black 

underwent an immediate skin graft surgery and remained in the hospital for a 

week.

Turning to his relationship with Diamond Bermuda, Black said he had never 

been to Bermuda, never spoken with anyone in Bermuda, nor received any training 

in Bermuda. Black said he had only traveled to Houston for training.

Finally, Appellants called David Ellingburg to testify as a corporate 

representative. Ellingburg said the purpose of Diamond Drilling is to own various 

subsidiaries of Diamond Offshore. Ellingburg said Diamond Drilling has no 

employees. 

Ellingburg explained that one of Diamond Drilling’s subsidiaries is 

Diamond Bermuda. Ellingburg described Diamond Bermuda as an “employment 

subsidiary” that employs “third country nationals” like Black. According to 

Ellingburg, the United States citizens working on the Ocean Valiant were 
21

employed by a separate subsidiary: Diamond Offshore Services Limited.5 

3. Application

Here, the record contains evidence sufficient to support the trial court’s

implied finding that an employment relationship existed between Diamond Drilling

and the actors involved in this incident. Specifically, the evidence summarized 

above shows:

• Roll signed Black’s 2008 employment contract in her capacity as a 

Diamond Drilling representative. 

• Black completed safety leadership and manual handling training with 

Diamond Drilling in Houston.

• During his Diamond employment, Black had not visited or spoken 

with anyone in Bermuda. Black traveled only to Houston for training. 

• On the daily drilling reports completed a week before and on the day 

of the incident, Diamond Drilling was listed as the Ocean Valiant’s 

“contractor,” and the daily drilling reports did not list any other 

contractors.

• Tankersley was employed at least in some capacity for Diamond 

Drilling. At the time of the incident, Tankersley worked on the Ocean 

Valiant as a safety department representative and medic. 

• Tankersley performed “housekeeping” duties on the ship, which 

included “mak[ing] sure that everything is put up and properly

stored.” 

5 During the charge conference, the parties and the trial court had a lengthy discussion 

about Diamond Offshore Services Limited. According to Black’s counsel, Black was first 

informed of this subsidiary’s existence during Ellingburg’s testimony. Pointing to Appellants’

responses to requests for disclosure and interrogatories, Black’s counsel asserted that Appellants 

did not disclose this entity’s existence as a potential party or an entity that “caused or 

contributed” to the incident in any way. 

In its ruling on this objection, the trial court included in the jury charge a paragraph 

stating that, “Diamond Offshore Services Limited and Diamond Offshore Drilling (Bermuda) are

subsidiaries of Diamond Offshore Drilling Incorporated.” Black’s counsel emphasized this

instruction in his closing argument and stated that Diamond Bermuda and Diamond Offshore 

Services Limited “are to be held responsible as any subsidiaries” of Diamond Drilling. 
22

• Tankersley was aware that some hazardous chemicals were removed 

from their usual storage area on the Ocean Valiant, including the 

bucket of AlfaNeutra Black sat on. 

• On the day of his injury, Black said he was not told to look for any 

hazardous chemicals in his workplace nor did he expect any to be 

located in the auxiliary machine room.

• Tankersley provided care to Black immediately after his injury and 

before he was transported off the ship. 

• Tankersley was involved in the investigation of Black’s injury and 

concluded that an employee on the ship was responsible for the 

improper storage of the AlfaNeutra. According to Tankersley, the 

investigation was not able to identify who this employee was or which 

Diamond entity the employee worked for.

• Clyde Reeves, Black’s supervisor, also participated in the 

investigation. Reeves had a Diamond Drilling email address and 

Black testified that Reeves worked for Diamond Drilling. Reeves 

instructed Black to work on the water maker on the day of the 

incident.

• During the incident’s investigation, no connections were made to 

Diamond Bermuda.

• The supervisor listed on Black’s injury report had a Diamond Drilling 

email address. 

• When Roll subsequently emailed Black regarding his termination, 

Roll directed Black to contact a Diamond Drilling employee with any 

questions he had about benefits. Roll’s signature line on this email 

also identified her as a Diamond Drilling employee.

Considered together, this evidence shows that Diamond Drilling assumed

responsibility as the contractor for the Ocean Valiant and employed, at least in

some capacity, the crew members. Various crew members were involved in all 

pertinent aspects of the incident, including: (1) ensuring housekeeping policies 

and procedures were followed on the ship, (2) failing to ensure those procedures 

were followed with respect to the AlfaNeutra bucket Black sat on, (3) instructing 

Black to work on the water maker, (4) treating Black’s injury, and (5) investigating
23

the incident. More broadly, the evidence shows Diamond Drilling representatives 

participated in Black’s hiring, training, and termination. The evidence does not 

show this level of involvement for any other Diamond entity, including Diamond 

Bermuda and Diamond Offshore Services Limited. Accordingly, the record 

contains evidence sufficient to support the trial court’s implied finding of an 

employment relationship 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.

Challenging this conclusion, Appellants liken the evidence presented here to 

that deemed insufficient to support the finding of an employment relationship in 

Service Corporation International, 348 S.W.3d at 229-31, and Ross Stores, Inc.,

612 S.W.3d at 688-90.

But in those cases, the evidence tying the parent corporation to the relevant 

facts and actors underlying the negligence claim were slight compared to the 

evidence in the present case. See Serv. Corp. Int’l, 348 S.W.3d at 229-31 

(evidence included statements from workers that they worked for “SCI” and the

“SCI” logo printed on personnel paperwork, both of which were consistent with 

employment with either the parent or subsidiary corporation); Ross Stores, Inc., 

612 S.W.3d at 688-90 (evidence included manager’s statement that all subsidiary 

employees also were employees of the parent corporation; bottom of each page of 

employee handbook had a footer stating, “[parent corporation’s] HR Policy 

Handbook”; and a statement in a letter to the plaintiff stating that “We at [parent 

corporation] are sorry to hear you were injured at work.”). Here, the relevant 

evidence rises well above the level of that examined in Service Corporation 

International and Ross Stores, Inc. Accordingly, these cases do not control our 

analysis. 
24

Further, this evidence also is legally sufficient to support the jury’s finding 

that Diamond Drilling breached its duties to Black. As set out above, employers in 

Texas owe certain duties to their employees and are required to use ordinary care

in carrying out these duties. See Farley, 529 S.W.2d at 754; Kroger Co., 474

S.W.3d at 335. The evidence is legally sufficient to show that Diamond Drilling 

breached certain duties, including the duties to (1) furnish a reasonably safe 

workplace, (2) warn employees of hazards of their employment that are not

commonly known or already appreciated, (3) supervise employees’ activities, 

(4) hire competent co-employees, and (5) furnish reasonably safe instrumentalities 

with which to work. See Kroger Co., 474 S.W.3d at 335.

Therefore, we overrule Appellants’ evidentiary sufficiency challenges with 

respect to Diamond Drilling.

C. Evidentiary Basis: Diamond Rig

Appellants also contend that “[t]his record provides no basis for a duty 

running from Diamond Rig to Black or a determination that Diamond Rig 

breached any such duty.” In response, Black asserts that “Diamond Rig owed 

duties to Black as the owner of the vessel on which his injuries occurred.” 

Black’s argument is premised on the doctrine of unseaworthiness, which 

provides a cause of action for injuries resulting from defects or insufficiencies of a 

vessel, its crew, or its appurtenances that undermine the vessel’s seaworthiness. 

See Rigdon Marine Corp. v. Roberts, 270 S.W.3d 220, 227 (Tex. App.—Texarkana

2008, pet. denied); see also Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 

1991) (“A shipowner has an absolute nondelegable duty to provide a seaworthy 

vessel.”). A claim for unseaworthiness arises under general federal maritime law. 

See Delome v. Union Barge Line Co., 444 F.2d 225, 228 (5th Cir. 1971) (“the 

shipowner’s warranty of seaworthiness in personal injury cases is now firmly 
25

rooted in federal maritime law”); see also Weeks Marine, Inc. v. Garza, 371 

S.W.3d 157, 163 (Tex. 2012) (“[t]he unseaworthiness claim . . . arise[s] under 

general maritime law”); Nazareth v. McDermott Int’l, Inc., 569 S.W.3d 205, 207 

(Tex. App.—Houston [1st Dist.] 2018, no pet.) (“Under general maritime law, a 

seaman injured aboard a vessel may assert a claim for unseaworthiness against the 

vessel owner.”).

But as with the Jones Act, certain foreign seamen are excluded from 

asserting claims under general maritime law. See 46 U.S.C.A. § 30105(b); see also 

Nazareth, 569 S.W.3d at 207 (“Section 30105, however, excludes certain foreign 

seamen from asserting claims under either general maritime law or the Jones 

Act.”). Specifically, section 30105(b) provides that a civil lawsuit for personal 

injury damages may not be brought under the Jones Act or other federal maritime 

law if three conditions are satisfied:

(1) the individual suffering the injury or death was not a citizen or 

permanent resident alien of the United States at the time of the 

incident giving rise to the action;

(2) the incident occurred in the territorial waters or waters overlaying the 

continental shelf of a country other than the United States; and

(3) the individual suffering the injury or death was employed at the time 

of the incident by a person engaged in the exploration, development, 

or production of offshore mineral or energy resources, including 

drilling, mapping, surveying, diving, pipelaying, maintaining, 

repairing, constructing, or transporting supplies, equipment, or 

personnel, but not including transporting those resources by a vessel

constructed or adapted primarily to carry oil in bulk in the cargo 

spaces. 

46 U.S.C.A. § 30105(b). 

Section 30105(c) creates two exceptions to this exclusion and provides that a

seaman may bring a civil action under general maritime law if he “establishes that 

a remedy is not available under the laws of either”:
26

(1) the country asserting jurisdiction over the area in which the incident 

occurred; or

(2) the country in which the individual suffering the injury or death 

maintained citizenship or residency at the time of the incident. 

Id. § 30105(c). The burden is on the plaintiff to establish that either 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 conclusively establishes that section 30105(b) precludes 

Black from pursuing a claim under general maritime law: Black was not a citizen 

or permanent resident alien of the United States when the incident occurred; the 

incident occurred in the territorial waters of a country other than the United States; 

and Black was employed at the time of the incident by a company engaged in the 

production of offshore energy resources. See 46 U.S.C.A. § 30105(b). Moreover, 

these same facts were relied upon by Appellants in their oral motion for a directed 

verdict on Black’s Jones Act claim, which the trial court granted. Black does not 

challenge this ruling on appeal. 

Black does not argue and the record does not show that Black meets either

exception listed in section 30105(c). See id. § 30105(c); see also Johnson, 613 F. 

App’x at 312. Moreover, the record supports the conclusion that Black had a 

remedy available under the laws of the country in which he maintained citizenship, 

as evidenced by his untimely attempt to apply English law to the substantive legal 

issues in the case. See also Lawrenson v. Glob. Marine, Inc., 869 S.W.2d 519, 526 

(Tex. App.—Texarkana 1993, writ denied) (the plaintiff could not pursue a claim 

under general maritime law “when he has a remedy in England”). 

Accordingly, section 30105(b) precludes Black from pursuing a cause of 

action under general federal maritime law. See 46 U.S.C.A. § 30105(b). 

Therefore, Black cannot rely on the doctrine of unseaworthiness to establish a duty 
27

owed to him by Diamond Rig. See Weeks Marine, Inc., 371 S.W.3d at 163;

Nazareth, 569 S.W.3d at 207; see also Cepeda v. Orion Marine Constr., Inc., 499 

S.W.3d 579, 584 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“To recover 

for unseaworthiness, [the plaintiff] must prove that the unseaworthy condition of 

the vessel proximately caused his injuries. But an unseaworthiness claim is not a 

negligence claim.”) (emphasis added). 

Rather, as noted above, Black’s “Notice of Intent to Rely on Foreign Law”

was not timely filed; therefore, Black only may rely on Texas law to establish a 

cognizable legal basis for liability with respect to Diamond Rig. See Tex. R. Evid. 

203; Cal Dive Offshore Contractors Inc., 478 S.W.3d at 921; PennWell Corp., 123 

S.W.3d at 764. Under Texas law, the existence of a duty is a question of law for 

the court to decide from facts surrounding the incident. See Gator Gone Safety 

Pilots, 622 S.W.3d at 536; Finley, 246 S.W.3d at 187. 

Unlike our analysis with respect to Diamond Drilling, the evidence in the 

record does not support the conclusion that Diamond Rig had an employment 

relationship as necessary to impose a duty of care. Aside from owning the Ocean 

Valiant, Diamond Rig did not have any connection to Black or to the relevant facts

or actors underlying the incident. 

The record shows only that Diamond Rig owned the Ocean Valiant at the 

time of Black’s incident. At most, this relationship would support a claim 

sounding in premises liability. See Occidental Chem. Corp. v. Jenkins, 478

S.W.3d 640, 644 (Tex. 2016) (“Under premises-liability principles, a property 

owner generally owes those invited onto property a duty to make the premises safe 

or to warn of dangerous conditions as reasonably prudent under the 

circumstances.”); see also Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 215-17 

(Tex. 2015) (delineating the differences between a claim sounding in premises 
28

liability and a claim for the violation of a duty arising from an employer-employee 

relationship). But the theory of recovery submitted to the jury did not reflect a 

premises liability claim and cannot support a recovery under this theory. See

United Scaffolding, Inc., 537 S.W.3d at 480-81. Moreover, Black did not argue in 

the trial court or on appeal that his claim against Diamond Rig sounded in premises 

liability. 

Accordingly, we agree with Appellants that the trial court erred by impliedly 

finding Diamond Rig owed a duty to Black. We sustain Appellants’ second issue

in part with respect to Diamond Rig. 

III. Disposition

A single apportionment question was submitted to the jury, to which it

responded as follows:

What percentage of the negligence that caused the occurrence or 

injury do you find to be attributable to each of those found by you to 

have been negligent?

Answer:

Diamond Offshore Drilling Inc. 52%

Diamond Rig Investments Limited 28%

William Black 20%

Total 100%

As explained above, a sufficient evidentiary basis supports the findings that 

Diamond Drilling owed a duty to Black and that the duty was breached. However, 

we also conclude that the trial court lacked a sufficient evidentiary basis to 

conclude that Diamond Rig owed a duty to Black under principles of Texas

common law negligence. Accordingly, the jury should not have been permitted to 

consider Diamond Rig’s liability in assigning percentages of responsibility. 
29

An analogous situation was examined in Heritage Housing Development, 

Inc. v. Carr, 199 S.W.3d 560 (Tex. App.—Houston [1st Dist.] 2006, no pet.). 

There, the plaintiff sued a nursing home and its parent corporation for negligent 

care and treatment of her husband. Id. at 562-63. The jury returned a verdict for 

the plaintiff, finding that the nursing home was liable for 40% of the damages and 

the parent corporation was liable for 45% of the damages. Id. at 564.

On appeal, the court reversed the judgment against the parent corporation, 

concluding that there was legally insufficient evidence to support vicarious liability 

against the entity. Id. at 570. The court remanded the case and held that, “[i]f the 

jury’s apportionment of liability could have been affected by an issue on which the 

trial court charged the jury but on which there was legally insufficient evidence, a 

new trial on the entire negligence claim is required.” Id. (citing Romero v. KPH 

Consol., Inc., 166 S.W.3d 212, 230-31 (Tex. 2005)). Continuing on, the court 

reasoned:

[A] new trial is necessary in this case, because the jury reasonably 

could have apportioned liability differently as between [the nursing 

home] and the remaining defendants if [the parent corporation] had 

not been included in the negligence charge. . . . The finding of 

vicarious liability against [the parent corporation] was not supported 

by legally sufficient evidence, and we are not reasonably certain that 

[the parent corporation’s] inclusion in the jury charge did not affect 

the jury’s apportionment of liability or the finding of damages against 

[the nursing home], particularly given [the parent corporation’s] 

contention on appeal that the reason it is not the nursing home 

employer is because [the nursing home] fits that role. 

Id. at 571.

We find this reasoning persuasive. Here too, the jury foreseeably could have 

apportioned liability differently between Diamond Drilling and Black had 

Diamond Rig not been erroneously included in the apportionment question. See id. 
30

Accordingly, we remand the case for a new trial on the negligence claim against 

Diamond Drilling. 

Arguing against this disposition, Black contends that Appellants were 

required to have made a contemporaneous objection to the apportionment question 

to preserve their argument that a new trial is required. Black cites Emerson 

Electric Co. v. Johnson, 627 S.W.3d 197 (Tex. 2021), to support this contention.

In Emerson Electric Co., the jury found the defendant liable based on a 

design defect and a marketing defect. Id. at 203. The court upheld the design 

defect finding and declined to address the defendant’s challenges to the marketing 

defect finding because that theory of liability would not have resulted in any 

greater relief. Id. at 210. The defendant argued that the court should address both 

liability theories because the jury was asked only one apportionment question and 

its allocation of responsibility might have been different based on the type of 

liability it found. Id. The court did not address the substance of this argument, 

noting instead that the defendant “never made the trial court timely and plainly 

aware of any Casteel-type error in the apportionment question.” Id. 

We are not persuaded either by Black’s argument or by his reliance on 

Emerson Electric Co. A Casteel-type error occurs when the trial court submits a 

single broad-form liability question incorporating multiple theories of liability and 

the appellate court cannot determine whether the jury based its verdict on an 

invalid theory that was improperly submitted. See Crown Life Ins. Co. v. Casteel, 

22 S.W.3d 378, 388 (Tex. 2000); see also Zaidi v. Shah, 502 S.W.3d 434, 440 

(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Casteel and its progeny are 

intended to remedy the trial court’s error in failing to eliminate — or at least

segregate — the factfinder’s consideration of invalid claims.”). Casteel-type errors 

must be preserved in the trial court by a timely and specific objection. See Tex. 
31

Comm’n on Human Rights v. Morrison, 381 S.W.3d 533, 536 (Tex. 2012) (per 

curiam).

Here, the apportionment question did not commingle multiple theories of 

liability. Rather, the apportionment question asked the jury to segregate liability 

amongst three separate parties: Diamond Drilling, Diamond Rig, and Black. On 

appeal, we conclude there was an insufficient evidentiary basis to warrant the 

imposition of liability against Diamond Rig, an entity the jury found 28% 

responsible for the underlying incident. 

Accordingly, this issue cannot be characterized as a Casteel-error because 

we are not presented with a question as to whether the jury’s verdict was based on 

an invalid theory. Instead, we have already concluded the verdict was based on 

one (and only one) valid theory of liability, i.e., general negligence. Because the 

jury foreseeably could have apportioned liability differently had Diamond Rig not 

been included in the charge, a new trial is warranted. See Heritage Hous. Dev., 

Inc., 199 S.W.3d at 571.

CONCLUSION

In sum, we conclude that Question No. 1 did not submit an immaterial claim 

that cannot support Black’s recovery. We overrule Appellants’ first issue. 

We overrule in part and sustain in part Appellants’ second issue, conclude a 

sufficient legal and evidentiary basis supports the imposition of liability against 

Diamond Drilling, and conclude insufficient evidence supports the trial court’s 

implied finding that Diamond Rig owed a duty to Black. 

We therefore reverse the judgment against Diamond Rig and render 

judgment in its favor. Because the jury apportioned liability among Diamond Rig

and Diamond Drilling, we cannot be reasonably certain that the inclusion of 
32

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

apportionment of liability. We therefore remand the case for a new trial as to 

Diamond Drilling. 

We need not address Appellants’ third issue in light of our disposition of 

Appellants’ second issue.

/s/ Meagan Hassan

Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan (Jewell, J., concurring).