4Front Engineered Solutions, Inc. v. Rosales (512 S.W.3d 357, 2015)

OPINION

Opinion by

Justice Garza

This is an appeal of a judgment in excess of $10 million rendered in a personal injury suit arising from a forklift accident. Appellant, 4Front Engineered Solutions, Inc. (“4Front”), argues that the trial court erred in rendering judgment in favor of appellees, Carlos Rosales, individually, and Rosa Mejia as next friend of Carlos Rosales Jr. (collectively “Rosales”), because: (1) Rosales’s counsel made an improper jury argument resulting in incurable harm; (2) the evidence was insufficient to support the jury’s findings that 4Front “exercise[d] or retain[ed] some control over the manner in which the work was performed” and had “actual knowledge” of a danger posed by a premises defect; (3) the jury’s negligent entrustment finding must be disregarded; (4) the evidence was insufficient to support the jury’s finding as to causation; (5) the evidence was insufficient to support the jury’s finding of gross negligence; (6) submission of a question on comparative responsibility was error; (7) the evidence was factually insufficient to support the jury’s finding as to comparative responsibility; and (8) the admission of Occupational Safety and Health Administration (“OSHA”) regulations into evidence was error. We modify the judgment to delete the exemplary damages award and affirm the judgment as modified.

I. Background

4Front, a designer and manufacturer of loading dock equipment, operates a warehouse in Pharr, Texas. In January of 2012, 4Front’s Pharr warehouse manager, Tony Ornelas, hired licensed electrician Francisco Reyes to repair an illuminated business sign mounted outside above the front door of the warehouse. Reyes enlisted Rosales, also a licensed electrician, to assist him. Ornelas allowed Reyes to borrow one of 4Front’s standing forklifts to do the job. On the second day of repairs, Reyes operated the forklift for at least 45 minutes, moving it back and forth along the sidewalk so that Rosales, who was standing on an enclosed platform attached to the raised forks, could access the electrical connections for the sign. At some point, one of the forklift’s wheels went off the edge of the sidewalk, causing the forklift to tip over and causing Rosales to fall 25 feet to the ground. Rosales suffered injuries to his hip, leg, spine, and brain as a result of the accident.

Rosales sued 4Front and Reyes, alleging premises liability, negligence, negligence per se, and gross negligence. His petition alleged that Ornelas “completely controlled the selection of equipment in use at the time of [RosalesJ’s injury” and “ignored requests by Reyes that [4Front] provide more appropriate equipment for the work.” Rosales alleged that 4Front, through Ornales, knew that the forklift “was unsafe for the use to which [4Front] insisted that it be used and that Reyes was not sufficiently trained in the proper and safe use” of the forklift. The following is a summary of the evidence presented at trial which is relevant to the issues raised on appeal.

A. Jerome Spear

Jerome Spear, an occupational health and safety consultant, testified as an expert on behalf of Rosales. Prior to trial, the trial court had granted a motion in limine filed by 4Front requesting a hearing before admitting any testimony regarding OSHA regulations. Accordingly, Spear testified at a hearing outside the presence of the jury that there is an OSHA regulation — located in section 1910.178(Z) of title 29 of the Code of Federal Regulations — that sets basic requirements for training an operator to safely operate a forklift such as the one at issue in this case. According to Spear, the regulation requires all forklift operators to be trained, including “hands-on training in an area free of obstructions” and “classroom type” training, and certified. Spear stated that, for OSHA purposes, 4Front would be considered a “host employer” because “they provide the means and methods for — to do the work on the site.” Spear identified an OSHA interpretation letter dated April 6, 1999, specifying that warehouse operators “do not have to train the employees or the contractor’s employees, but they have to ensure that they are trained.” Spear stated that the OSHA regulation would be relevant to determining whether the owner of a forklift “knew or should have known whether a person was competent to operate the forklift.” He opined that, if the operator “cannot produce verification of the [operator’s] training certification,” the forklift owner “should not allow them to operate at the site.” Spear stated that he was aware that 4Front had adopted the relevant OSHA regulations as part of its safety policy. After the hearing, the trial court allowed Spear to testify as to the specific OSHA regulation applicable to forklift operators, but not as to the general multi-employer citation policy promulgated by OSHA.

Spear later testified at trial that he investigated the incident and made two “critical conclusions: One, it was the wrong machine for the job and two, there was no training or certification for the operator.” He explained that the forklift was the “wrong machine for the job” because there was “insufficient clearance between the unprotected edge of the sidewalk and the edge of the forklift” — a total of “about nine inches on either side” with the forklift “directly centered” on the sidewalk. Spear stated that, based on his observation of the sidewalk, he would have known that it was necessary to move the forklift back and forth in order to access the sign to be repaired, and that moving the forklift back and forth was dangerous because “it increases your chances of rolling off the sidewalk.” He added that moving the forklift back and forth in a straight line is “very difficult” because it has a “reverse steering” mechanism and a three-point suspension system, which “makes it easier to maneuver in tight corners, but conversely makes the back end swing quite a bit.” He stated that a boom-supported elevated platform would have been the best machine for this job because it has a wide, stable base and can extend or retract to make it longer or shorter. Spear explained that a scissors lift, though better than a forklift because it is narrower, would not be ideal because “you still would have to lower it before you move it.” Spear testified that, if he was the safety officer at 4Front on the day in question, he would not have allowed a standing forklift to be used to access the sign, and he wouldn’t have allowed a scissors lift to be used for that purpose if there were better options available.

Spear next explained that, in part because there are about 100 fatalities and 20,000 injuries that occur in the United States every year due to forklift accidents, OSHA established standards in 1998 requiring forklift operators to be trained and certified. He summarized the provisions of the pertinent OSHA regulation, a copy of which was entered into evidence. He explained that the training requirements exist to protect not only employees, but also to protect any other people that might be on site, including delivery persons, pedestrians, visitors, or other contractors. He opined that 4Front failed to comply with the OSHA. regulations and the forklift’s operating manual by permitting “an untrained person to operate the forklift” and that 4Front also violated its own “policy of not loaning equipment to others.” Spear further stated that Reyes, the operator of the forklift at the time of the accident, failed to comply with the operating manual because he (1) used the forklift outdoors, and (2) attempted to move the forklift without first lowering the forks.

Spear stated that, according to his investigation, Ornelas was in charge of safety on the property, Ornelas made the decision to “select” Reyes to do the work, and Ornelas “had to approve all equipment to be used” on the property. He stated that Ornelas ordered 4Front employees to attach a platform to the forklift, to drive the forklift out of the warehouse, and to give the keys to the forklift to Reyes. Spear stated that Ornelas or another 4Front employee should have monitored Reyes and Rosales and “stopped work if they saw that anything was being performed hazardously.”

A surveillance video recording of the accident was played to the jury. Spear stated that, because Reyes improperly attempted to move the forklift forward with the forks elevated, he needed to be aware of both the clearance between the platform and the sign and the clearance between the forklift and the sidewalk. Based on the video, Spear opined that Reyes did not intentionally drive the forklift off the sidewalk. Instead, he agreed with Rosales’s counsel that Reyes was “set up to fail” because it was not possible for him to concentrate on both clearances at once.

On cross-examination, Spear conceded that he only spent five minutes inspecting the warehouse location and did not get out of his car. He took no measurements of the sidewalk where the accident occurred, nor did he inspect the forklift involved in the accident or the platform attached to the forklift. He did not review regulations for electricians promulgated by the Texas Department of Licensing and Regulations. He acknowledged that Reyes and Rosales had used the same forklift to repair the same sign for several hours two days before the accident, without incident. He agreed that, according to the surveillance video, no 4Front employee was “micromanaging” Reyes and Rosales in their operation of the forklift. Spear agreed with defense counsel that there is no indication that Reyes ever had training to operate a boom lift truck. He further agreed that, even if the operator of the forklift had been properly trained, the accident might still have happened because a forklift was an improper machine to use for that task. He stated that, if Rosales had asked Reyes to lower the platform before moving the forklift, there is no reason to think that Reyes would not have complied with that request. Spear testified that 4Front was more responsible than Reyes for the accident because 4Front was more “knowledgeable” and had provided the equipment.

B. 4Front Employees

Rosales presented the testimony of three 4Front employees via video-recorded deposition excerpts. Juan Villarreal, a supervisor at 4Front’s Pharr facility, testified that he would not allow any of the employees that he supervises at 4Front to use a standing lift outside the warehouse. Villarreal stated that he was not authorized to loan 4Front equipment to persons who are not 4Front employees. He agreed that it is important, if he saw personnel under his supervision engaging in unsafe practices, to ensure that they stop those practices.

Rene Felix, a certified forklift operator at the Pharr facility, testified that Rosales and Reyes should not have been using the forklift in the area where they were using it. Felix agreed that he was told that standing lifts should be used only inside the warehouse; that they should not be driven when the forks are in the raised position; and that the forks should not be raised unless the lift is still. He said he told Reyes that he did not have the authority to lend the forklift to him “because I use that equipment inside” and because “I didn’t know the man.” However, Ornelas, the warehouse manager, instructed him to lend the forklift to Reyes. Felix testified that Ornelas told him to put the platform on the lift and to drive the lift to the front door of the office so that Reyes could use it. Later, when Felix went outside, he saw a hole made by the forklift when it fell into the grass, and heard a “guy ... screaming.” He then told Villarréal, his supervisor.

Fernando Mujica, also a certified forklift operator at the Pharr facility, testified that he was trained not to move the lift while the load was in the raised position “[because depending on the ... weight of the load, it can ... move and ... the forklift can turn over.” He was also taught in training that the forklift can only be used indoors. Mujica testified that Ornelas “ordered” the lift to be loaned to Reyes.

C. Ornelas

Ornelas testified that he has been employed by 4Front as a warehouse manager since 2005. He agreed that one of his responsibilities is to manage safety at the facility, but he has never received training on forklift-safety. Villarreal was his second-in-command and was authorized to supervise Felix and Mujica. According to Ornelas, 4Front had four forklifts at the Pharr facility at the time of the accident, and forklifts were used there on a daily basis. Ornelas agreed that forklift operation is a “very large part of what [we] do” at the Pharr facility. He stated: “As the warehouse manager, the responsibility falls on me that — not necessarily through me, but that [the forklifts] are being used safely, effectively and only the right person is using the equipment.” He stated: “Every member at my facility in Pharr, regardless of his rank, has the right to either stop, to either report [safety concerns] immediately to either my lead person or myself that there is something not — -something is being violated that concerns safety.”

Ornelas acknowledged that the forklift operating manual states in multiple places that the machine should be used only by licensed, trained operators and that it should only be used indoors. He conceded that he knows where the operating manual, written in English, is normally kept— inside a panel on the -machine itself — -but that he never required any operator to read the manual. He denied being aware that Reyes does not speak English.

Rosales’s counsel asked, over -4Front’s counsel’s objection: “Do you know that OSHA, specifically the OSHA regulation 1910.178, requires that operators of all standing forklifts have to be trained and certified?” Ornelas replied: “I’m- not sure on the exact title and number that you just gave, but on the wording itself, yes.” Ornelas confirmed that he knew that prior to the date of the accident. Ornelas conceded that he stated in his deposition that he did not “know the dangers of being lifted by a forklift more than 6 feet” because he is “not trained and' certified.”

A document dated January 3, 2012 and entitled “4Front Engineered Solutions Safety Policy” was entered into evidence. Ornelas conceded that he is responsible for enforcing this safety policy, and he agreed that it is “something that 4Front should try to do.” The policy stated, in part:

To be successful, our safety program must embody the proper attitudes toward injury and illness prevention by both management and employees. A cooperative effort among employees is necessary to ensure that a safe and healthy work environment can be established and maintained. Our objective is a safety and health program that will provide a workplace with zero accidents. This safety program will include the following:

A. Conducting a program of safety and health inspections to identify and eliminate unsafe working conditions or practices; control health hazards; provide mechanical/physical safeguards, and to comply with OSHA guidelines ....

Ornelas agreed that, “to enforce OSHA guidelines!!,] you got to know them.”

Ornelas said that loaning equipment to non-employees was a “common” and “safe” practice in the industry. However, he agreed that, on January 23, 2012 — five days after Rosales’s accident — 4Front instituted a new written policy stating that “independent contractors are not to use 4Front owned equipment under any circumstances. Only [4Front] employees with the required training and/or certifications are permitted to use company owned equipment.” The policy further stated that “[fjuture quotes for work to be performed and woi'k done on our premises will require that independent contractors provide their own equipment.” Ornelas stated that, to his knowledge, the company did not have an informal policy to that effect prior to the accident.

With respect to the illuminated sign outside of the warehouse, Ornelas testified that he called Reyes because Reyes had done several jobs for him in the past and Ornelas was “very happy with his work.” Ornelas asked Reyes to “take a look at the job and tell me what was all required and his price.” Reyes “gave me the price and specifically told me: This is the price I’m going to charge you and don’t rent any equipment. I’ll use your equipment.”

Ornelas agreed that, on the day of the accident, he knew that Reyes and Rosales would be working on the sign above the front door; that they would need lift equipment; and that Reyes had never brought lift equipment with him when he had done jobs at the facility in the past. He testified that he never spoke to Rosales before the accident. Ornelas testified:

[Reyes] came to me, approached me and said, Hey I want to use your equipment and I said, This is the only one available right now. He said, Yep. I’ll use it, I’m trained. I got experience on this, let me use that one. At that point I told my guy, Okay. Put the basket for him and leave it right there in the corner and he took it from there.

Ornelas agreed that he authorized Reyes’s use of the forklift. Ornelas did not ask Reyes to produce an OSHA certification card; according to Ornelas, that was because Reyes had informed him that he was “trained” and “experienced” in using forklifts. Ornelas conceded that, when asked at his deposition whether Rosales was responsible for his injuries, he replied “No.”

Ornelas testified that Villarreal, Mujica, and Felix were not authorized to lend equipment to Reyes. Ornelas denied that Reyes asked him to rent a scissors lift to access the sign; although, on one occasion in the past, Reyes did use a scissors lift at the facility to do a different job. Ornelas stated that there were surveillance cameras in the facility, and that he could watch the live surveillance video from his office, but that the cameras were there “just in case somebody breaks in, we got some evidence for the police.” He agreed that, as the person in charge of safety at the Pharr facility, he is obligated to ensure that drivers are trained and certified before they operate a forklift. He agreed that, had the equipment not been used by an uncertified and untrained operator, the accident would not have happened, but he elaborated: “You can be trained, you can be the highest scorer on the test, but the reality is that if you’re not paying attention to what you’re doing, regardless of how many licenses you have, the reality is obvious; what’s going to happen is what happened there.”

D. 4Front Executives

The testimony of three 4Front executives was presented via video-recorded deposition excerpts. Robert Wright testified that he is 4Front’s Director of Facilities and Manufacturing Engineering, and that he works at 4Front’s Carrollton, Texas headquarters. He stated that 4Front has a “zero defect” policy which provides that, if any employee sees equipment being used improperly or unsafely, that employee has the right to “stop it and then get a supervisor and get it resolved.” He stated that he never trained Ornelas or any other 4Front employees in Pharr on OSHA regulations. When asked if he was familiar with any of the safety policies that were enforced at the Pharr facility concerning the use and operation of forklifts, Wright replied: “That’s not my responsibility.” He testified that each 4Front facility has its own “on-site safety representative” and that Ornelas and Robert Hawk were responsible for making sure that safety policies were enforced at the Pharr facility. Wright said that it is important for a company such as 4Front to train its workers on how to properly and safely use a forklift to prevent injury or death. He agreed that, because Reyes was not properly trained, it would have been “a violation of an important safety rule” if he were permitted to operate the forklift without being directly supervised by someone who is properly trained. Wright testified that, contrary to the warnings in the operator’s manual, a forklift like the one used by Reyes and Rosales can safely be used outside, as long as it is being operated on a flat, dry surface.

Robert Hawk testified that he is the general manager of 4Front’s Pharr facility. He agreed that he is Ornelas’s supervisor and that he is generally responsible for ensuring that safety rules are enforced and followed at the facility. Hawk testified that it is 4Front’s policy to allow forklifts to be used only by people properly trained in their use and operation. He stated: “If there’s something that’s obvious, that — that someone on our property is doing something incorrectly, then I think that we should probably step up to the plate and say, ‘Hey, you know, you should stop doing that.’ However, not everything is obvious.... ” Hawk stated that he has never had OSHA training with respect to forklifts, and neither has Ornelas. He stated that 4Front had no “explicitly stated” policy, prior to the Rosales’s accident, regarding lending equipment to non-employees. He added: “There was an ad hoc verbal policy that’s, ‘Hey, as a general rule, it’s not a good idea to do much lending of stuff to people,’ because if they damage the equipment and things like that, then, you know, it costs us time and money....”

Tony Koschei, 4Front’s vice president of human resources, testified that he receives annual OSHA training and that it is an OSHA requirement that “all employees receive [training].” Koschei stated that it is company policy that forklift operators must be certified, and that Ornelas was responsible for supervising any employee that uses a forklift at the Pharr facility. When asked whether Ornelas had the requisite knowledge to be able to supervise employees that operate forklifts, Koschei replied: “It’s an assumption that he sits in the training.” He did not know that Orne-las was not certified in forklift operation. He denied that 4Front had any policy, prior to Rosales’s accident, prohibiting the lending of equipment to non-employees.

Koschei agreed that, if 4Front sees an independent contractor doing something obviously dangerous, “they do have a responsibility to stop that”; and that, having loaned equipment to an independent contractor, 4Front “retained] the authority” to revoke permission to use the equipment. He agreed that “it would be a good idea” to ensure that any non-employees to whom equipment may have been loaned are properly trained; but he later testified that it was not 4Front’s responsibility to ensure that non-employees are properly trained.

E. Reyes

Reyes testified, via video-recorded deposition excerpts and through an interpreter, that he had never been trained, nor had he ever received any certification or license, to operate a forklift. He stated that Orne-las gave him permission to use the forklift involved in the accident. The following colloquy occurred:

Q. [Rosales’s counsel] Did you ask for permission to use the equipment?

A. [Reyes] No. And I asked him if he had the other one because it was easier for you to lift up two persons instead of just one.

Q. Did you ask him if he would rent a scissors lift?

A. Well, he told me not to worry about the scissors lift, that he had one. But I didn’t know if it was being rented or not. But it seems to me that he rented it in — for the cameras.

Q. The scissors lift?

A. But that’s what I believe.

Q. Did he ask you if you had any experience operating a standup lift truck?

A. No. I told him, I can move it, but slowly.

Q. Did you have any difficulty operating the standup lift truck inside of the warehouse?

A. Yes.

Q. What kind of trouble did you have?

A. But that is why I would move it slowly.

Q. What difficulty did you have?

A. The thing is that this one here has a wheel that goes around like this, and it all depends on how you maneuver that wheel that, you know, it goes around. And the lever, it has the lever.

Q. So in terms of how you moved it, that was a decision you made on your own. True?

A. No. Well, I was the one who was telling them that I needed the other one because with the other one I could lift up things, you know, up there, and regarding this one here, an operator has to be there, uh-huh, yes in case I would have any doubts or something.

Q. When you say an operator needs to be there, can you clarify what you mean?

A. Because this was the only one available that they had out there. And what was difficult for me was this here. And so I asked the man, I asked the one who was operating it just, you know, how to operate the joysticks.

Later, during its case-in-chief,' 4Front presented additional excerpts from Reyes’s deposition testimony. Reyes stated that he has been licensed as a journeyman electrician for about three or four years. Pri- or to that, he had served as an apprentice under various master electricians. Reyes explained that he is not able to read the English language. Every year, he is required to take a four-hour course to renew his electrician’s license, but those courses are given only in English. At the time of the deposition, his license had lapsed because he “didn’t have the money to renew it.”

Reyes had done two previous jobs at 4Front’s Pharr warehouse, and each time he had to produce his electrician’s license to the facility’s manager. Once, when he installed electric wiring for a camera system, he used a scissors lift that 4Front had rented. Another time, he used a forklift with a platform, like the one involved in the accident at issue, to check some wires inside the warehouse; that was the first time he had operated a standing forklift.

Reyes asked Rosales to help him on the 4Front illuminated sign job because he knew him from a past job and “wanted to help him.” He stated that there was no one else involved in the job, and he denied that anyone from 4Front told him how to operate the forklift. He stated that, on the first day, he operated the forklift with Rosales on the platform in order to “check out” the sign. They came back a second day because only half of the sign was lit, and that was when the accident occurred. Reyes stated that, on occasion, Rosales would ask him to lower the platform before he moved the forklift from one point to another along the front of the building, and that “I would lower it.” When asked whether he lowered the platform “every time” he moved the forklift, Reyes replied: “A little.”

Reyes testified that he told Ornelas that a scissors lift would be better for the job and that he asked Ornelas to rent a scissors lift for this job. When asked if there was any reason he could not have rented a scissors lift himself and brought it to the site, he replied: “Because it is very expensive.”

F. Rosales

Rosales testified that he has not been able to work as an electrician since the accident, and he has not been able to find other work due to his injuries. He agreed that 4Front loaned the forklift involved in the accident to Reyes and himself. He agreed that, on the first day that he and Reyes worked on the illuminated sign, a person whom he believed to be “from 4Front” operated and moved the forklift, and that each time that person moved the forklift, “he lowered the platform until [the] wheels touched the sidewalk.” After about three or four hours of work, Rosales thought the job was done, but only half of the sign lit up, so they had to come back the next day. On that day, Reyes operated the forklift.

Prior to the accident, he did not see Reyes do anything that would make him doubt whether Reyes knew how to control the lift or its platform. However, Reyes did not lower the platform before moving the lift back and forth. This made Rosales feel unsafe, but he did not tell Reyes to do anything differently.

Rosales stated that he did not speak to anyone from 4Front on the day of the accident, nor did he see Reyes talk to anyone from 4Front that day. He did not hear anyone from 4Front tell him or Reyes how to do the work. Nevertheless, he testified that he holds 4Front — not Reyes — responsible for the accident. He acknowledged that he had previously stated in his deposition that he faulted Reyes for failing to lower the platform before moving the lift.

G. Jerry Purswell

4Front’s expert witness, Jerry Purswell, testified that he is a “safety engineer and ergonomics expert.” He “was head of all the standards activity at OSHA” between 1978 and 1981, and he later supervised a group in Switzerland that wrote worldwide electrical standards, though he has never been a licensed electrician. He agreed that his degree in industrial engineering involves the study of warehouse operations, and he stated that “I have been qualified in most of the states as an accident reconstructionist where I always look at the regulations.” He stated he has analyzed “at least 20, 25” accidents involving forklifts.

Purswell stated that he analyzed Rosales’s accident and reviewed the relevant regulations. He agreed that the relevant OSHA regulation regarding electrical work states that “[i]t is the obligation of the licensee to exercise reasonable judgment and skill in the performance of all duties and work performed as a licensee.” The regulations also provide that “[t]he licensee shall not offer to perform nor perform technical services for which the licensee is not qualified by education or experience without securing the services of another who is qualified.”

Purswell testified that the term “employee,” as used in the OSHA regulation pertaining to forklift use, does not refer to independent contractors. He stated: “[ljt wouldn’t make any sense to be trying to save somebody who is an independent contractor that you don’t direct their work. You don’t have control over them.” He elaborated:

The employer is what the whole Occupational Safety and Health Act is addressing, is the employer and there to provide a safe and healthful workplace. There is nothing in there that’s addressed to an independent contractor because they’re not an employee. The person who hires them can’t control them or direct how their work is done, especially to see that it’s safely done.

However, later in Purswell’s testimony, Rosales’s counsel read OSHA’s 1999 letter of interpretation regarding the pertinent regulation that was previously discussed during Spears’s testimony. Purswell agreed that, according to the letter, employers are responsible for assuring that so-called “lumpers” — that is, non-employees who are invited onto the employer’s property to assist in loading and unloading — “are properly trained before they are permitted to operate powered industrial trucks” on the employer’s premises. He agreed that the letter does not impose an obligation on an employer to train independent contractors, “but you got to make sure [the independent contractors] know how to operate the forklift because the safety of your employees, your [ware-jhouse employees [are] at risk because they can get hit.” He specified that the letter of interpretation pertains only to independent contractors “in a warehouse setting.” He agreed that, hypothetically, if he were in charge of safety at the Pharr warehouse, he would let an employee operate the forklift on the sidewalk outside of the building, but he would not let a non-employee borrow the forklift to do so.

In Purswell’s opinion, because Reyes was the lead electrician in charge of the job, “he should not have taken into account anybody else’s opinion but his own as to whether or not he could do the job safely and do it without having a hazard to the people who happen to be working with him.” He stated that, if Reyes determined that he could not safely complete the job with the equipment being used, he had an obligation to notify Ornelas of that and “to go and get a safe means of elevating, of which there were obviously many available.”

Purswell measured the sidewalk where the accident occurred and determined that it was free of irregularities and level to within a fraction of a degree. He testified that there was nothing about the surface of the sidewalk that would present any safety hazard regarding the use of a standing forklift with a platform. He stated that, as long as the surface was level, there was not a problem in using the forklift outdoors. He further testified that a person who is familiar with using this forklift would have “no problem” navigating the forklift around the sidewalk. He later agreed that “the use of this forklift by an uncertified, untrained worker was safe given the amount of available clearance” on either side of the lift on the sidewalk, and that the clearance on the sidewalk was “far in excess of what he would normally encounter in terms of using [the forklift] as intended to be used” within the warehouse. However, Purswell also agreed that, had Reyes been properly trained, he would have known not to move the forklift with someone on the platform and the platform in a raised position.

Purswell agreed that, if Ornelas had never given Reyes the keys to the forklift, the accident would never have happened. He said that the use of a boom lift “could have” eliminated the danger. But he opined that, because Ornelas had seen Reyes use the forklift “successfully” on prior occasions, Ornelas “had no reason to believe that Mr. Reyes wouldn’t be able to use this lift truck safely outside when he needed to use it.” He further said it was reasonable for a warehouse manager like Ornelas to rely on representations made to him by a licensed professional tradesman, and it would not be reasonable for a warehouse manager to constantly monitor the work of an independent contractor.

According to Purswell, Reyes operated the forklift in an unsafe manner because (1) he failed to lower Rosales to the ground before moving the forklift, and (2) according to the surveillance video, Reyes was talking on his cell phone at the time the accident occurred. Purswell opined that Reyes would not need to be trained or certified to know that he should not have moved the forklift with Rosales on the platform and the platform in a raised position. He also said that Rosales’s failure to “speak up and voice safety concerns” was a “substantial factor” in causing the accident.

H. Verdict and Judgment

The jury found that the negligence of Reyes, Rosales, and 4Front each proximately caused Rosales’s injuries. As to 4Front, the jury charge contained two questions asking if its negligence proximately caused Rosales’s injuries — one based on a negligent entrustment theory and one based on a premises liability theory. The jury answered both questions in the affirmative. The jury further found that 4Front “exercise[d] or retained] some control over the manner in which the work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports.” See Tex. Civ. Peac. & Rem.Code Ann. ch. 95 (West, Westlaw through 2013 3d C.S.) (limiting circumstances under which commercial property owners may be held liable for acts of an independent contractor). The jury attributed 75 percent of liability to 4Front, 15 percent to Reyes, and 10 percent to Rosales. The jury also found 4Front grossly negligent and assessed $5 million in exemplary damages. See id. § 41.003(a)(3) (West, Westlaw through 2013 3d C.S.). Based on the jury’s findings, the trial court rendered judgment that Rosales recover $7,278,317.15 in actual damages, $2,886,634.31 in exemplary damages, see id. § 41.008 (West, Westlaw through 2013 3d C.S.) (limiting awards of exemplary damages), and pre- and post-judgment interest from 4Front. This appeal followed.

II. Discussion

A. Evidentiary Sufficiency

We first address 4Front’s evidentiary sufficiency arguments. See Lone Star Gas Co. v. R.R. Comrn’n of Tex., 767 S.W.2d 709, 710 (Tex.1989) (per curiam) (noting that points calling for rendition of judgment should be considered before points calling for remand).

1. Standard of Review

Evidence will be legally sufficient to support a jury’s finding unless the record reveals: (1) the complete absence of evidence of a vital fact; (2) that the court is barred by the rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a scintilla; or (4) that the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). We view the evidence in the light most favorable to the finding, crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence unless a reasonable factfinder could not. Id. at 807. The ultimate test for legal sufficiency is whether the evidence would enable reasonable and fair-minded people to make the finding under review. Id. at 827. In reviewing a legal sufficiency issue, the court indulges every reasonable inference in support of that finding. Id. at 822.

“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. They may choose to believe one witness and disbelieve another. Reviewing courts cannot impose them own opinions to the contrary.” Id. at 819. “Courts reviewing all the evidence in a light favorable to the verdict thus assume that jurors credited testimony favorable to the verdict and disbelieved testimony contrary to it.” Id.

In reviewing a factual sufficiency challenge to a jury finding on issues on which the appellant did not have the burden of proof, as is the case here, we set aside the verdict only if the evidence that supports the jury finding is so weak as to make the verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 469-70 (Tex.App.-Corpus Christi 2008, pet. denied). In a factual sufficiency review, we consider and weigh all the evidence, but as in a legal sufficiency review, we defer to the jury as the sole judge of the witnesses’ credibility. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); see Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). The jury may choose to believe one witness over another, and a reviewing court may not impose its own opinion to the contrary. Golden Eagle Archery, 116 S.W.3d at 761.

2. Chapter 95

4Front argues by its second issue that the evidence was legally and factually insufficient to support the jury’s answer, in response to jury charge questions three and four, respectively, that 4Front “exercise[d] or retained] some control over the manner in which the work was performed” and had “actual knowledge of the danger” posed by a condition on the premises. The charge questions were based on chapter 95 of the Texas Civil Practice and Remedies Code, which provides:

A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:

(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and

(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

Tex. Civ. Prac. & Rem.Code Ann. § 95.008. The statute is applicable only to a claim:

(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and

(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.

Id. § 95.002. “Claim” is defined in chapter 95 as “a claim for damages caused by negligence.” Id. § 95.001(1). “Property owner” is defined as “a person or entity that owns real property primarily used for commercial or business purposes.” Id. § 95.001(3).

As a threshold matter, we consider whether chapter 95 applies to Rosales’s claims. In response to 4Front’s second issue, Rosales argues that the statute does not apply because his claim did not “arise[] from the condition or use of an improvement to real property.” See id. § 95.002(2). He further contends that the statute is inapplicable because “[t]his is a negligent activity case,” not a premises liability case.

In support of his argument, Rosales points to Keetch v. Kroger Co., in which the Texas Supreme Court explained the difference between premises liability and negligent activity cases. See 845 S.W.2d 262, 264 (Tex.1992). As the supreme court stated, “[rjecovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity,” whereas a premises liability claim requires, among other things, a showing that the property owner had actual or constructive knowledge of an unreasonable risk of harm and failed to use reasonable care to reduce or eliminate the risk. Id.; see Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 778 (Tex.2010) (“We have recognized that negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.”). The Keetch Court found that the claim at issue there— a slip and fall at a grocery store — was not a negligent activity case because, although “[a]t some point, almost every artificial condition can be said to have been created by an activity,” there was “no ongoing activity” at the time the plaintiff was injured. 845 S.W.2d at 264. Rosales also cites several cases in which courts have held that an independent contractor’s workplace injury claim was not properly characterized as a premises liability claim. See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985) (plaintiff subcontractor was injured when another subcontractor crushed plaintiffs finger while moving dirt, as ordered by the defendant general contractor, with his tractor; supreme court held “[t]his is not a premises defect case ... [rjather, this case involves an injury caused by an activity conducted on the premises”); Saenz v. David & David Constr. Co., 52 S.W.3d 807, 811 (Tex. App.-San Antonio 2001, no pet.) (subcontractor was hit and knocked off a roof by panels being lifted to the roof by a crane operated by another subcontractor; court held that trial court did not err in refusing to submit premises liability question); Arias v. MHI P’ship Ltd., 978 S.W.2d 660, 662 (Tex.App.-Corpus Christi 1998, no pet.) (plaintiff, an employee of an independent contractor hired by the defendant, fell while doing framing work; we held “[t]his is not a premises defect case” because “it involves an injury caused by an activity conducted on the premises”).

4Front urges that the case is instead controlled by Coastal Marine Service of Texas, Inc. v. Lawrence, 988 S.W.2d 223 (Tex.1999). In that case, an independent contractor’s employee was killed when his head was crushed in the “pinch point” area of a crane. Id. at 224. The crane was owned by the defendant, but the contractor “took custody of the crane and began continued occupation of [the defendant’s property” two years before the accident. Id. The defendant was not involved in directing or supervising the contractor’s work and had no employees on the job site when the accident occurred. Id. at 225. The Texas Supreme Court rendered judgment against the plaintiffs because there was no evidence that the defendant retained or exercised a “right to control” the subcontractor’s work. Id.

We agree with Rosales that, according to its strictly-construed plain meaning, chapter 95 does not apply to this case. See Smith v. Sewell, 858 S.W.2d 350, 354 (Tex.1993) (noting that, if a statute “deprives a person of a common-law right,” it “will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview”); see also Carpenter v. First Tex. Bancorp, No. 03-12-00004-CV, 2014 WL 2568494, at *1 (Tex.App.-Austin June 5, 2014, no pet.) (mem.op.) (construing chapter 95 strictly pursuant to Smith). Rosales was injured while in the process of repairing an improvement to 4Front’s real property — the illuminated sign — but it cannot be said that his claim “ar[o]se[] from the condition or use” of the sign. See Tex. Civ. Pkac. & Rem.Code Ann. § 95.003. Rather, his claims arose from the use of a forklift, which is not an improvement to real property. Moreover, we find that the instant case is more akin to those cited by Rosales than to Coastal Marine. Redinger, Saenz, and Arias each involved claims by independent contractors for injuries resulting from activities, not from pre-exist-ing defects on the premises which the property owner failed to reasonably warn about or correct. See Redinger, 689 S.W.2d at 417; Saenz, 52 S.W.3d at 811; Arias, 978 S.W.2d at 662. Similarly, here, Rosales’s claim is based on activities — his injuries would not have occurred if Ornelas had not loaned the forklift to Reyes and had Reyes not driven the forklift off the sidewalk. The injury here was the “contemporaneous result of an activity” and was not the result of an unreasonable risk of harm due to unsafe conditions on the premises which 4Front failed to reduce or eliminate. See Del Lago Partners, 307 S.W.3d at 788 (“In short, unlike a negligent activity claim, ‘a premises defect claim is based on the property itself being unsafe.’ ”) (quoting State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006)); Keetch, 845 S.W.2d at 264. Coastal Marine is distinguishable because, in that case, there was no evidence that the property owner’s employees directed, supervised, or were even present at the job site at the time of the injury. See 988 S.W.2d at 224-25.

As noted above, 4Front contends by its second issue that the evidence is legally and factually insufficient to show that it had “actual control” or “actual knowledge of a danger” as required for liability under chapter 95 and as set forth in jury charge questions three and four. See Tex, Civ. Peac. & Rem,Code Ann, § 95.003. However, we have already concluded that chapter 95 does not apply to Rosales’s claims. In any event, we need not address this contention because of our finding below that the jury’s verdict was supported on a negligent entrustment theory as set forth in charge question two. See Tex.R.App. P. 47.1. 4Front’s second issue is overruled.

3. Negligent Entrustment

4Front’s third issue challenges the legal and factual sufficiency of the evidence supporting the jury’s findings as to negligent entrustment in its answer to jury charge question two.

We first address 4Front’s contention, also made as part of its third issue, that “[tjhere is no cause of action in Texas for negligent entrustment of a forklift.” 4Front argues that “[n]o Texas case establishes a cause of action for negligent entrustment of a forklift” and “Texas appellate courts have only expanded the doctrine in the ease of firearms.” See Kennedy v. Baird, 682 S.W.2d 377, 378-79 (Tex. App.-El Paso 1984, no writ).

As 4Front correctly notes, liability for negligent entrustment is most often alleged in suits arising out of motor vehicle accidents. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007). A forklift is a motor vehicle. Rosales concedes that Texas courts have not addressed whether liability may arise from the negligent entrustment of an industrial vehicle such as a forklift; however, by the same token, 4Front has directed us to no authority indicating that such liability should not or may not be extended beyond the context of personal-use vehicles or firearms. Instead, we believe the principles underlying negligent entrustment liability are squarely applicable to Rosales’s claim. Negligent entrustment is founded on section 390 of the Restatement (Second) of Torts, which states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (2d) op Torts § 390 (1965); see Mayes, 236 S.W.3d at 758; see also Donahue v. Polaris Indus., Inc., No. 02-11-00279-CV, 2012 WL 1034908, at *4 (Tex.App.-Fort Worth Mar. 29, 2012, pet. denied) (mem.op.) (“[Tjhere is no articula-ble distinction between section 390 and negligent entrustment”). “Chattel” is defined as “[mjovable or transferable property; personal property; especially], a physical object capable of manual delivery and not the subject matter of real property.” Black’s Law Dictionary 268 (9th ed.2009). A forklift fits within this definition. Moreover, in recognizing that liability may attach to the negligent entrustment of a firearm, the El Paso Court of Appeals observed:

The establishment of the negligent en-trustment of an automobile theory of recovery was developed by the courts because of the realization that one who entrusts an automobile to another owes a duty to the general public not to be negligent in such entrustment. An automobile when in the hands of one who is not competent to handle it becomes a threat to the general public, and the owner of the automobile who is negligent in the entrustment should be liable to the injured party provided that causation can be shown. The owner’s liability does not arise out of a vicarious relationship, rather it arises out of the negligence of the owner in entrusting the automobile to another.

Kennedy, 682 S.W.2d at 378. The unanimous trial testimony established that a forklift, like a firearm, is also a machine which “when in the hands of one who is not competent to handle it becomes a threat to the general public.” Id. We are aware of no reason to limit the applicability of negligent entrustment liability to the personal-use vehicle or firearm context. For the foregoing reasons, we reject 4Front’s contention that the cause of action is not cognizable.

Having found that negligent en-trustment of a forklift is a viable cause of action, we further conclude that the evidence adduced at trial was sufficient, both legally and factually, to support the jury’s finding of liability on this theory. To establish liability under a negligent entrustment theory, Rosales was required to establish that (1) 4Front entrusted the forklift to Reyes; (2) Reyes was an unlicensed, incompetent, or reckless forklift operator; (3) at the time of the entrustment, 4Front should have known that Reyes was an unlicensed, incompetent, or reckless forklift operator; (4) Reyes was negligent on the occasion in question; and (5) Reyes’s negligence proximately caused the accident. See Mayes, 236 S.W.3d at 758; Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex.1987). 4Front does not dispute that the first, second, fourth, and fifth elements were established by sufficient evidence. As to the third element — whether 4Front should have known at the time of the entrustment that Reyes was unlicensed, incompetent or reckless — we find that a reasonable juror could have reached an affirmative conclusion based on the evidence adduced at trial. Orne-las, the 4Front employee responsible for safety at the Pharr facility, testified that he knew that the forklift operating manual states repeatedly that the forklift should only be used by a licensed, trained operator, and that it should only be used indoors. He agreed that he was obligated to ensure that drivers are trained and certified before they operate a forklift. He did not, however, ask Reyes to produce an OSHA certification card or other proof that Reyes was trained before he loaned the forklift to Reyes. Although Ornelas testified that Reyes had previously used the forklift without incident, much of that use occurred indoors where the danger was not as severe. Both expert witnesses testified that, under the 1999 OSHA interpretation letter introduced into evidence, warehouse operators must ensure that forklift operators are properly trained. Koschei, 4Front’s vice president for human resources, testified that all 4Front employees must receive OSHA training, but it is undisputed that Ornelas did not receive such training. We conclude that, from this evidence, a reasonable juror could have concluded that Ornelas “should have known,” at the time he loaned the forklift to Reyes, that Reyes was an unlicensed or incompetent forklift operator. See Mayes, 236 S.W.3d at 758

4Front’s third issue is overruled.

4. Causation

By its fourth issue, 4Front contends the evidence was legally and factually insufficient to show that its negligence was a proximate cause of Rosales’s injuries, as found by the jury in response to charge questions two and four.

Proximate cause has two components: (1) foreseeability and (2) cause-in-fact. Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex.2013); see Del Lago Partners, 307 S.W.3d at 774. Foreseeability requires that a person of ordinary intelligence should have reasonably anticipated the danger created by a negligent act or omission. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995); J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 533 (Tex.App.-Austin 2009, no pet.). Foreseeability is not measured by hindsight, but instead by what the actor knew or should have known at the time of the alleged negligence. Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 230 (Tex. App.-Dallas 2008, no pet.). Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, bé foreseeable. Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756, 757 (Tex.1998). For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in bringing about the harm, and absent the act or omission — i.e., but for the act or omission — the harm would not have occurred. Rodriguez-Escobar, 392 S.W.3d at 113. If the defendant’s negligence merely furnished a condition that made the injuries possible, there can be no cause in fact. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). There may be more than one proximate cause of an occurrence. Del Lago Partners, 307 S.W.3d at 774.

4Front contends that the accident that injured Rosales was “unforeseeable given Reyes’s prior work history and statements that he could operate the lift slowly.” We disagree. Trial testimony established that Ornelas instructed his staff to loan the forklift to Reyes and that Ornelas knew Reyes was going to use the forklift on the sidewalk below the illuminated sign. Spear testified that he would not have allowed anyone to use a standing forklift for that particular job because there was insufficient clearance on the sidewalk. Purswell testified that there was sufficient clearance, and that there was nothing about the sidewalk that would make it inherently unsafe for forklift operation, but the jury was entitled to reject that testimony and instead believe Spear. See City of Keller, 168 S.W.3d at 819. Moreover, Reyes testified that Ornelas did not ask him whether he had experience operating that type of vehicle, and that he told Orne-las that a scissors lift would be better for the job. Again, although Ornelas’s testimony conflicted with that of Reyes, the jury was entitled to resolve that conflict. See id. From this evidence, the jury could have reasonably concluded that a person of ordinary intelligence would have anticipated that an injury would likely result from lending the forklift to Reyes to fix the sign. See Boys Clubs, 907 S.W.2d at 478. Additionally, Purswell agreed that the accident would have never happened if Orne-las had never given Reyes the keys to the forklift, and Reyes testified that he could not have rented a scissors lift himself and brought it to the worksite “[bjecause it is very expensive.” From this evidence, the jury could have reasonably concluded that 4Front’s negligence was a cause-in-fact of Rosales’s injuries. See Rodriguez-Escobar, 392 S.W.3d at 113. We overrule 4Front’s fourth issue.

5. Gross Negligence

By its fifth issue, 4Front contends that the evidence was legally and factually insufficient to support the jury’s finding that 4Front was grossly negligent.

In general, exemplary damages may be awarded if the plaintiff proves that the harm suffered resulted from gross negligence. See Tex. Civ. Prac. & Rem.Code Ann. § 41.003(a)(3) (West, Westlaw through 2013 3d C.S.). “Gross negligence” means an act or omission:

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Id. § 41.001(11) (West, Westlaw through 2013 3d C.S.). Under the objective element, an extreme risk is “not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex.2014). Under the subjective element, “actual awareness means the defendant knew about the peril, but its acts or omissions demonstrated that it did not care.” Id. Circumstantial evidence may suffice to prove either element. Id.

Gross negligence must be proven by clear and convincing evidence. Tex. Civ. Prac. & Rem.Code Ann. § 41.003(a)(3). “‘Clear and convincing’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 41.001(2); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex.2012). Because of this heightened burden of proof, we apply a heightened standard of review:

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the fact-finder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.

Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.2008) (quoting Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex.2005)); see Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004) (noting that “whenever the standard of proof at trial is elevated, the standard of appellate review must likewise be elevated”). We review all the evidence to determine whether the jury could have formed a firm belief o