IN THE

TENTH COURT OF APPEALS

No. 10-07-00064-CV

SSHG, LLC D/B/A SUPPORT SERVICES

HOLDINGS GROUP AND 

LEGACY SUPPORT SERVICES, LTD.,

Appellants

v.

ERIC IAN LEWIS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2005-1421-1

M E M O R A N D U M O P I N I O N

Eric Ian Lewis was injured on the job while using an electric hand planer and 

sued his employer, SSHG, LLC, (SSG) a worker’s compensation nonsubscriber, for 

negligence. A jury found for Lewis, and SSG appeals the adverse judgment. We will 

affirm.

Background and Evidence

Lewis worked as an assistant in the maintenance department of SSG, which runs 
SSHG v. Lewis Page 2

a technical support call center. On the day in question, Paul Woods, who was Lewis’s 

supervisor and SSG’s Facilities Manager and had thirty-five years of experience in 

construction and the operation of power tools, was on a medical leave of absence. 

Lewis and a co-worker, Travis Allison, who was the “lead man” in the maintenance 

department, were assembling work station cubicles. Both were in their early twenties. 

Lewis and Allison realized that they needed smaller strips of wood for a portion of the 

cubicle assembly, so Allison called Woods at home for guidance. Woods testified that 

he initially said they could get new wood and cut it to the size needed, or they could 

plane the wood that they had, but it was for Allison to decide what to do. He claimed, 

however, that he ended the telephone conversation with the instruction to just cut new 

wood. Woods said that when he concluded by telling Allison to just cut new wood, his 

intent was that Allison and Lewis not use the planer because he thought that it was too 

dangerous for them to use it without Woods’s having shown them how to use it

correctly and safely.

Allison disagreed with Woods’s version of how the conversation ended, 

testifying that Woods told him he could either cut new wood or plane down the wood 

they already had. It was Allison’s understanding that it was up to him to decide which 

way to do it. Woods and Allison agreed that Woods did not specifically say, “Don’t use 

the planer.”

Allison then went to Lewis and told him to use the hand planer on the wood 

they had. The electric hand planer was Woods’s personal power tool that he had 

brought to SSG. It was about forty years old and did not have instructions with it or 
SSHG v. Lewis Page 3

warnings on it. Lewis used the hand planer by grabbing it with his right hand, turning 

it upside down so that the spinning blade was exposed, and pressing the wood against 

it with his left hand to plane it. While using the planer this way, Lewis successfully 

planed most of the wood, but toward the end the planer cut off the tips of Lewis’s left 

thumb and index finger. Lewis was not sure exactly how the accident happened.

Lewis had some prior carpentry experience; he had worked for about six months 

at a cabinet shop where he cut out and built cabinets using power tools and saws, and 

beginning around age fifteen or sixteen, he had occasionally assisted his stepfather, who 

did homebuilding, remodeling, and add-ons. His stepfather had carpentry tools at 

home and trained him how to use them correctly and safely. He also had worked for a 

restoration company as a carpenter’s assistant, occasionally assisting the carpenters but 

mostly working on the cleanup crew. Allison’s background was in heating and air 

conditioning.

Woods knew that Lewis had some carpentry experience, but he didn’t know the 

details of it, as Lewis had not been hired with the idea of doing carpentry. Lewis had 

never used a hand planer before; he had only used a table-mounted planer that wood is 

fed into and comes out the other end, and hands are never near the blade. He had seen 

Woods use the hand planer once before on long pieces of part of a door frame, and he 

cannot recall if he also used it on that occasion. Allison said that he had previously seen 

Lewis using the hand planer on a door frame and that Lewis had said he had used a 

table-mounted planer. Lewis was generally familiar with the need to stabilize or brace 

wood while working on it, and he knew not to get his hand near the sharp moving 
SSHG v. Lewis Page 4

blades of tools like saws and lawnmowers. He also admitted that the planer appeared 

to require two hands; it had a knob and a grip with a trigger.

Neither Allison nor Lewis was familiar with the need for a fixture or a jig to 

stabilize the small pieces of wood that Lewis was planing. Other than holding the 

planer with one hand and the wood with the other, Lewis could not think of any other 

way to plane the small wood pieces. Allison concurred with Lewis’s method and did 

not think it was dangerous or improper. After the fact, Lewis realized that using the 

planer that way was dangerous.

Woods testified that it was important to train employees in the use of tools. 

Woods was familiar with using the planer and the danger of planing small pieces of 

wood; he knew that a jig should be built and used to securely wedge small pieces of 

wood before using the planer. Lewis said that had he known to use a jig, he could have 

built one.

The instructions for a brand new power hand planer that was demonstrated at 

trial include the following as its first safety rule for planers:

Secure the material being planed. Never hold it in your hand or across 

legs. Small workpiece must be adequately secured so the rotating planer 

blades will not pick it up during forward motion of the planer. Unstable 

support can cause the blades to bind causing loss of control and injury.

The jury found that SSG’s negligence proximately caused Lewis’s injury and 

awarded him approximately $65,000 in damages. The trial court credited SSG with 

Lewis’s medical expenses ($11,509.85) that SSG had paid and entered a judgment for 

Lewis in the amount of $55,371.09. The trial court denied SSG’s motion for jnov, which 
SSHG v. Lewis Page 5

asserted that it owed Lewis no duty to warn.

Issues

Seeking reversal and rendition of a take-nothing judgment, SSG asserts two 

issues: (1) it had no duty to warn Lewis of the dangers in using the planer because 

those dangers were obvious, commonly known, or already appreciated by Lewis; and 

(2) there is no evidence that SSG’s negligence, if any, proximately caused the injury; 

instead, the evidence conclusively shows that Lewis’s own negligence caused the injury.

Duty

SSG is a nonsubscriber to the Texas Workers’ Compensation Act. See TEX. LAB.

CODE ANN. § 406.002 (Vernon 2006) (“Except for public employers and as otherwise 

provided by law, an employer may elect to obtain workers’ compensation insurance 

coverage.”). “In an action . . . against an employer who does not have workers’

compensation insurance coverage, the plaintiff must prove negligence of the employer 

or of an agent or servant of the employer acting within the general scope of the agent's 

or servant's employment.” Id. § 406.033(d) (Vernon 2006). The employee’s contributory 

negligence is not a defense in nonsubscriber cases. Id. § 406.033(a)(1); see The Kroger Co. 

v. Keng, 23 S.W.3d 347, 351-52 (Tex. 2000).

To establish negligence, a party must establish a duty, a breach of that duty, and 

damages proximately caused by the breach. The Kroger Co. v. Elwood, 197 S.W.3d 793, 

794 (Tex. 2006). An employer has a duty to use ordinary care in providing a safe 

workplace. Id.; Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975). It must, for 

example, warn an employee of the hazards of employment and provide needed safety 
SSHG v. Lewis Page 6

equipment or assistance. Elwood, 197 S.W.3d at 794; Farley, 529 S.W.2d at 754. An 

employer must furnish safe machinery and instrumentalities that its employees are to 

work with and must provide adequate assistance under the circumstances for the 

performance of required work. See Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 

186 n.45 (Tex. 2004); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995); Farley, 529 

S.W.2d at 754. An employer must also instruct employees in the safe use and handling 

of products and equipment used in and around an employer’s premises or facilities, 

and must adequately hire, train, and supervise employees. Patino v. Complete Tire, Inc.,

158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied); Castillo v. Gared, Inc., 1 

S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).

An employer, however, is not an insurer of its employees’ safety. Elwood, 197 

S.W.3d at 794. An employer owes no duty to warn of hazards that are obvious, 

commonly known, or already appreciated by the employee and owes no duty to 

provide equipment or assistance that is unnecessary to the job’s safe performance. Id. at 

794-95.

As noted above, Woods testified that he did not want Allison and Lewis to use 

the planer because he thought that it was too dangerous for them to use without his 

having shown them how to use it correctly and safely. Specifically, he said:

A. And I didn’t want them to use it without me showing them how, 

period.

Q. Okay. So you thought it was too risky or too dangerous for them to 

use it?

A. Yes, ma’am.
SSHG v. Lewis Page 7

Q. Okay. And you believe that that was something that they needed to 

understand, that you did not want them using it because it was too risky 

or too dangerous until you had a chance to give them instruction?

A. Yes, ma’am.

Woods was familiar with the danger of planing small pieces of wood and knew that a 

jig should be used to plane small pieces.

The need to use a jig or some other bracing device to safely use an electric hand 

planer on small pieces of wood, instead of holding the plane and the wood in one’s 

hands, is not obvious. Nor is this safety need commonly known—an electric hand 

planer is a specialized tool for woodworking. This case is thus unlike those relied on by 

SSG. See Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 569 (Tex. 2007) (employer did not 

have duty to warn employee about obvious danger in using ladder to climb over 

delivery truck’s malfunctioning lift gate); Elwood, 197 S.W.3d at 795 (grocery store 

employer had no duty to warn courtesy clerk of danger associated with placing hand in 

doorjamb of automobile because that danger is common and obvious to anyone); see also

Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 313 (Tex. App.—Houston [1st Dist.] 2007, no 

pet.) (employer did not have duty to warn employee about water on floor of trailer

because danger associated with water on floor commonly known and obvious to 

everyone, and employee was aware of water on floor).

SSG argues, however, that the planer’s dangers were obvious to and already 

known by Lewis, pointing to his testimony that he was generally familiar with the need 

to stabilize or brace wood while working on it, that he knew not to get his hand near 
SSHG v. Lewis Page 8

sharp moving blades, and that the planer appeared to require two hands. But Lewis’s 

admissions do not affect our view of the critical issue in this case, which is that, as 

Lewis testified to, he did not know what a jig was or that he needed to use a jig to plane 

small pieces of wood with the hand planer—exactly what Woods would have shown 

and instructed Lewis to do. Lewis did not know beforehand that he should not hold a 

piece of wood and run it across the bottom of the electric hand planer. Indeed, Allison, 

who was likewise untrained in the use of the planer, saw nothing wrong or unsafe with 

how Lewis was using it and would have used it the same way, and Lewis had 

successfully planed most of the wood before his injury. And while the evidence was 

unclear, if Lewis had used this hand planer before, it was with Woods and on a long 

part of a door frame. Based on this evidence, we hold that Lewis did not already 

appreciate the danger of using an electric hand planer on a small piece of wood while 

holding it, and SSG owed a duty to Lewis to train him in the safe use of the planer and 

warn him of its danger. We overrule SSG’s first issue.

Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence, we view the evidence in the 

light most favorable to the verdict, crediting favorable evidence if reasonable jurors 

could, and disregarding contrary evidence unless reasonable jurors could not. City of 

Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005). There is legally insufficient 

evidence or “no evidence” of a vital fact 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 
SSHG v. Lewis Page 9

prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively 

establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 

706, 711 (Tex. 1997).

It is not disputed that SSG did not train Lewis in the safe use of the electric hand 

planer with small pieces of wood and warn him about its dangers. Woods admitted 

that, in the phone call with Allison, he did not specifically tell Allison not to use the 

planer, although he admitted that he did not want Allison and Lewis to use it because it 

was risky and dangerous and he had not shown them how to use it. The evidence in 

this case would enable reasonable and fair-minded people to reach the verdict under 

review. See City of Keller, 168 S.W.3d at 827. The evidence is therefore legally sufficient 

to support the jury’s negligence finding. We overrule issue two.

Conclusion

Having overruled both issues, we affirm the trial court’s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 10, 2008

[CV06]