Pustka v. Printpack Inc

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
February 22, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 05-40043
_____________________
ROBERT PUSTKA,
Plaintiff - Appellee,
versus
PRINTPACK INC.,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-1452
_________________________________________________________________
Before JOLLY, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Printpack asserts that Pustka admits the pallet in question
arrived at his line with no instability; thus, Printpack concludes
that any injury-causing instability was caused solely by Pustka’s
actions. We have examined the transcript, and we are satisfied
that there was sufficient evidence to support the jury’s verdict
against Printpack.
1) Although Pustka perceived no instability when the pallet
was first delivered, there is testimony that the pallet held three
rolls with a total weight of more than twice the average and with
one of the rolls overhanging the edge of the pallet; that, after

-- 1 of 2 --

2
cutting the band that stabilized the rolls on the pallet and
removing the largest of the three rolls, Pustka observed the
remaining rolls leaning and attempted to correct the instability;
and that the leaning was indicative of negligent loading of the
pallet.
2) Pustka and his co-workers testified that rules prohibiting
a worker from moving heavy loads without assistance from another
worker or a mechanical device were frequently ignored, even in the
presence of supervisors, and that no disciplinary action was ever
taken. As the District Court noted, Printpack’s “only attempt to
rebut this devastating testimony was to call a very low level
supervisor,” whose testimony the jury could reasonably have
discredited.
This case was fully tried to a jury and substantively reviewed
by the District Court on a motion for directed verdict. Making all
reasonable inferences in favor of Pustka, and refraining from re-
weighing evidence and witness credibility, we find sufficient
evidence in the record to allow a rational jury to conclude that
Pustka’s injury was proximately caused either by negligence in
loading the pallet or by negligent enforcement of the safety rule
prohibiting solo manhandling of rolls. Under Texas law, this is
sufficient to render judgment against Printpack, a non-subscriber
to Texas’s worker’s compensation program. The judgment of the
District Court is
AFFIRMED.

-- 2 of 2 --