the Kroger Co. v. Christopher Milanes

Affirmed and Opinion filed July 30, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00873-CV

THE KROGER COMPANY, Appellant

V.

CHRISTOPHER MILANES, Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2011-44685

OPINION

Appellant, The Kroger Company, a non-subscriber to workers’

compensation insurance, appeals from a final judgment in favor of appellee

Christopher Milanes, a Kroger employee who was seriously injured while cutting

meat. In its first two issues, Kroger contends the trial court erred when it

submitted Milanes’s claim to the jury on a general negligence theory rather than a

premises liability theory. We overrule these issues because (1) the Supreme Court

of Texas has held that a non-subscriber employer in Texas owes continuous, non-

delegable duties to its employees separate and distinct from those owed to an

invitee on the premises; and (2) Milanes alleged, and legally sufficient evidence

showed, that Kroger breached those duties.

Kroger asserts in its third and fourth issues that the evidence is legally and

factually insufficient to support the jury’s findings that Kroger’s negligence

proximately caused Milanes’s injury and that he suffered past and future loss of

earning capacity as a result of the injury. We overrule these issues because the

record on appeal contains legally and factually sufficient evidence of both

proximate cause and loss of earning capacity.

In its fifth issue, Kroger contends that the trial court abused its discretion

when it admitted irrelevant photographs and videos that it argues were taken

illegally. We overrule this issue because the photographs and videos were

relevant, Milanes took them while legally on Kroger’s premises, and Kroger has

not shown that he violated any law while doing so. Finally, Kroger argues in its

sixth issue that the trial court abused its discretion when it failed to intervene to

remedy alleged juror misconduct. We overrule this issue because, even if we

assume the trial court had a duty to intervene and failed to do so, Kroger has not

established that it was harmed as a result. We therefore affirm the trial court’s

judgment.

BACKGROUND

A. Kroger hires Milanes and trains him as a journeyman meat cutter.

Milanes applied for a job at Kroger in 2007. Milanes went through a one-

day orientation before he started work. According to Milanes, the orientation did

not involve safety training but instead covered the advantages of joining the union.

Once Milanes started working for Kroger, he was assigned to work in the meat

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department as a clerk. After he had been working for about a month, Kroger

promoted Milanes to apprentice meat cutter. Milanes then moved from store to

store before eventually being assigned to the Post Oak Kroger in 2009.

As an apprentice meat cutter, Milanes received on-the-job training from a

journeyman, or more experienced, meat cutter. Journeyman meat cutters were

supposed to train apprentices on the proper operation of the store’s meat-cutting

equipment, including the Biro brand bone-in band saw at issue in this appeal. The

journeyman meat cutter was also expected to train the apprentice in the safety

measures that needed to be taken while using that equipment. Milanes eventually

became a journeyman meat cutter.

Milanes testified that he received a great deal of his meat-cutting training

from Matt Anderson, a journeyman meat cutter at the Kroger store in Montrose.

While Milanes testified that he believed Anderson did a good job training him, he

also testified that he was not taught by anyone at Kroger to use the band saw blade

guard, which both the saw manufacturer and the Occupational Safety and Health

Administration (OSHA) require to be used at all times while cutting meat with the

saw.1 Indeed, Milanes testified that he was not even aware that the bone-in band

saw had a blade guard; instead, he was taught the blade guard was a guide used to

line the meat up prior to cutting. As a result, Milanes never used the blade guard.

Milanes also testified that he was never given Kroger’s Meat and Seafood

Department Safety Manual or the Biro band saw’s operator’s manual. Milanes

further testified that the bone-in saw manufacturer’s warning labels were not on the

Post Oak Kroger’s saw during the time he worked at the store.

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Milanes testified that he did not learn that the band saw was equipped with a blade

guard until after his injury. Evidence showed that a meat cutter was required to keep the blade

guard set to one-half inch above the level of the meat being cut at all times.

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B. Problems with Kroger’s bone-in band saw were reported prior to the

injury.

Milanes and other meat cutters experienced problems with the bone-in saw

prior to Milanes’s injury. Milanes testified that before he was injured, he reported

to Kroger management: (1) the saw squealing loudly; (2) the blades dulling very

quickly, often within thirty or forty minutes of the blade being changed; (3) the

saw frequently catching the meat and sucking it into the blade; (4) the saw being

off-balance and shaking frequently; (5) the blade wobbling; and (6) the presence of

a lip on the saw table that frequently snagged the meat. Milanes testified that if he

told Adam Bell, another journeyman meat cutter who also served as a relief meat

market manager, about a problem, Bell would start tinkering with the saw in an

effort to fix the problem. Milanes saw Bell doing maintenance on the saw at least

twice a week.

With respect to the saw blade dulling quickly, Milanes admitted he had the

discretion to change the blade whenever he believed it was necessary. He went on

to explain, however, that Kroger management had asked the meat cutters to be

sparing with the blades and to make them last. The evidence also revealed that

there was a financial incentive for managers to come in under budget. Milanes

recounted an episode in which he had used so many blades on the bone-in saw that

the store’s supply was exhausted, thereby angering management.

In addition to Milanes, several other Kroger meat cutters testified during the

trial regarding the pre-accident condition of the saw and Kroger’s handling of

maintenance issues. These witnesses included William Quinones, Michael Barnes,

and Bell. Quinones still worked as a Kroger meat cutter at the time of trial.

Kroger had terminated Barnes prior to trial for alleged dishonesty. Bell, as

mentioned above, was a meat cutter and assistant meat market manager at the Post

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Oak Kroger. All three testified that there were frequent problems with the bone-in

saw.

Among the problems Quinones reported to Kroger management were (1) the

blade tension was not right; (2) the blade would occasionally pop off of the saw;

(3) the saw table was wobbly; and (4) the blade dulled quickly, requiring frequent

blade changes. According to Quinones, management could not get the problems

with the saw fixed before Milanes’s injury. Quinones also explained that a band

saw making a loud squealing noise can indicate that there is a problem with the

saw’s blade tension. He went on to explain that if the tension is off, it can make

the blade dull more quickly. Quinones explained that a dull blade can cause the

meat to jerk or suck the operator’s hand into the blade.

Like Milanes, Quinones testified that he had never seen the operator’s

manual for the bone-in saw and management never told him that he had to read it

before operating the saw. Quinones also confirmed that there were no warning

signs or labels on the bone-in saw. Quinones never observed inspectors

performing regular maintenance on the saw. Instead, Kroger maintenance

personnel only came out when a problem was reported. Quinones testified that he

was not a trained maintenance person for the bone-in saw, but Kroger expected

him to perform maintenance on the saw. Quinones admitted that he had adjusted

the tension on the blade and that he had also seen Bell working on the saw.

Barnes confirmed many of the problems mentioned by Milanes and

Quinones. Barnes testified that he saw Bell adjusting the tension on the blade and

that Bell would grab pliers and attempt to fix any problem reported to him. Barnes

also agreed with Quinones that there was no regular maintenance program for the

store’s band saws.

Bell testified that he experienced the blade popping off the saw prior to

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Milanes’s injury. He went on to explain that, in his experience, the blade coming

off a band saw was caused by either (1) an accumulation of bone dust and “goop”

clogging the blade scrapers;2 or (2) the blade tension not being set properly. Bell

also testified that when a band saw makes a loud noise, it means something is

wrong with the saw. Bell further testified that he had never seen a complete list of

steps on how to clean the bone-in saw nor had he seen the operator’s manual for

the saw.

Bell admitted that he was not certified by the saw manufacturer to do

maintenance on the saw. Bell testified that, as a journeyman meat cutter, he could

change the saw’s blade and also adjust the tension of the blade but was not

authorized to do more than that. According to Bell, he took the saw apart to clean

it, not perform maintenance on it. After he was shown a photograph that appeared

to show him working on the bone-in saw, Bell explained that a Kroger

maintenance person had told him that there was a nut on the saw that if it became

loose, it could cause the blade to get out of adjustment and possibly even pop off.

Bell explained that he was attempting to adjust that nut when the photograph was

taken. Bell then denied that he was doing anything improper when the photograph

was taken.

Bell testified that he did not recall any particular problems with the bone-in

saw prior to Milanes’s injury. In Bell’s opinion, there would have to be something

very wrong with a band saw for the blades to dull within thirty to forty minutes of

being changed. Bell went on to state that dull blades make it more likely that the

meat will jump while being cut. Bell also did not recall any feedback from Kroger

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There are two sets of blade scrapers on the bone-in saw, one above the cutting table and

one below. Each set consists of two pieces of metal attached to the saw housing, one on either

side of the revolving blade. The blade scrapers are designed to remove from the blade material

created by the cutting of the meat. Bell admitted that the blade scrapers had never been changed

during his time at the Post Oak Kroger.

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management about changing saw blades too frequently or any request to keep costs

down by not changing the blades out as often as a meat cutter believed necessary.

C. Milanes is seriously injured while cutting meat with the saw.

At the time of his injury, Milanes had nearly completed his eight-hour shift.

Milanes testified that even though it was the end of his shift, he was not tired and

was attending to the task of cutting meat just as closely as he had been at the

beginning of his shift. Milanes also testified that he had the meat seated properly

on the saw table prior to the injury. Milanes observed that the blade seemed pretty

dull, but he decided not to change the blade. According to Milanes, the saw was

making a loud noise that evening, and the table was still wobbly. Milanes also

noticed that the lip was still present on the saw table. Milanes did not report any of

these problems to management that evening because he had reported them

previously and the problems were not addressed.

Milanes was cutting a slab of meat into individual steaks and was about

three-fourths of the way through the slab. Milanes is right-handed, and he

estimated that his right hand was about six inches from the blade before the

accident occurred. According to Milanes, the accident happened so fast that he did

not see exactly what happened. Milanes testified that he believed the dull blade

caused the meat to jump, or flip over, pulling the fingers of his right hand into the

blade.

The saw blade amputated parts of three fingers from Milanes’s right hand.

Milanes was taken to the hospital, where he underwent surgery to reattach the

severed fingers. The surgery was unsuccessful. Milanes later underwent two

additional surgeries to cover exposed bone. After the surgeries, Milanes

underwent extensive physical therapy and testified that he continued to experience

a great deal of pain in the areas of the amputations. Milanes also testified that he

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experienced the phantom sensation that his fingers were still there. At the time of

trial, Milanes was still experiencing pain severe enough that he had to take pain

medication frequently.

Milanes reported that the loss of his fingers had adversely impacted his

ability to participate in physical activities such as rock climbing, basketball,

football, dodge ball, running with his dog, and lifting weights at the gym. The

injury also affected his ability to drive his standard transmission car. Milanes

reported that he was unemployed at the time of trial. Milanes testified that he had

tried two different jobs after he was terminated by Kroger, but he had been

unsuccessful because both jobs required manual dexterity. Milanes also testified

that all of his prior job experience had involved manual labor, and he could no

longer do that type of work.

Milanes offered evidence that after the accident, he experienced severe

anxiety, depression, insomnia, as well as nightmares about cutting off his fingers.

Milanes twice went to the hospital thinking he was experiencing a heart attack.

Doctors diagnosed both episodes as anxiety attacks, not heart attacks. Milanes also

experienced feelings of anger because the meat department personnel had

complained that the bone-in saw was not working properly prior to his injury.

Milanes eventually went to see a psychologist. Once Milanes returned to work at

the Post Oak Kroger, he experienced anxiety when he was around the meat saws.

Milanes’s psychologist recommended that he be kept away from the saws while he

was working.

D. Milanes returns to work on light duty and Kroger terminates his

employment.

Milanes was earning $16.69 per hour when he was injured. He returned to

work several months after the accident at that same wage. Milanes was initially

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placed on light duty in the meat department when he returned to work. Milanes

testified that he had no specific job duties while on light duty and frequently spent

his time doing little more than talking to customers. Kroger began asking Milanes

to resume cutting meat about a month after he returned to work but while he was

still on light duty. Kroger made this request even though Milanes’s doctors had

ordered that he not be required to cut meat at that point in time. Kroger asked

Milanes to return to meat cutting several times.

Milanes was to return to full duty with no restrictions on October 21, 2011.

The day before, Bell, as he was leaving work, instructed Milanes to clean the meat

department cooler. Milanes explained that an industrial hose and scalding hot

water were used to clean the meat department cooler and saws. Milanes picked up

the hose and noticed that it had a leak. Milanes also saw that a new hose was

laying nearby, so he called the store manager, William Underwood, and asked if

Underwood could send someone to change out the hoses. Underwood told Milanes

to do it himself. Milanes testified that he responded: “[C]an we have somebody

else? And he said, no. And before I could say anything else, he started yelling and

saying it’s not a light duty issue. Anything - - I didn’t even say that. And I said,

well, it is kind of a light duty issue. And he said I’ll be back there in a minute.”

Milanes testified that he did not believe the task of changing out the hoses was

within his job duties at that point in time. Milanes explained that he was still on

light duty, his hand was still hurting a great deal, and changing out the hose

required the person to use pliers and a wrench, tasks he did not think he should do

while his hand was still hurting.

When Underwood arrived, he asked Milanes why he could not change out

the hose. Milanes responded that he was not going to do it. Milanes testified that

he did not want to say in front of other employees that he was physically unable to

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change out the hose, but that Underwood was aware he was still on light duty.

When Milanes continued to refuse to change out the hose, Underwood terminated

him for insubordination. Milanes admitted that he never told Underwood in front

of other people that he was physically unable to perform the task of changing out

the hose.

E. Mechanical engineering experts testify regarding saw operation and

maintenance and the cause of Milanes’s injury.

At trial, mechanical engineer John Ryan testified on behalf of Milanes.

According to Ryan, OSHA standards require an employer to provide a safe

workplace. OSHA also has a general machine guarding standard that requires any

hazardous point of operation to be guarded. Additionally, OSHA had specific

standards for the operation of band saws such as the bone-in saw at issue in this

case. OSHA, according to Ryan, has three primary concerns with the operation of

band saws. First, OSHA requires that each band saw have an operational blade

guard. Second, OSHA emphasizes that a band saw’s blade tension must be

properly set. Finally, OSHA requires employers to have a training program in

place so that employees learn how to operate a band saw safely. Ryan explained

that blade tension is important for the safe operation of band saws because if the

tension is not set correctly, the blade can pop off the saw.

Ryan obtained a copy of the operator’s manual for the type of bone-in saw

used at the Post Oak Kroger. The manual states that the saw’s blade guard must be

kept within one-half inch of the meat being cut. According to Ryan, if the blade

guard is adjusted to within one-half inch of the meat, and the meat suddenly jumps

or rolls, the guard will prevent the operator’s hand from contacting the blade. The

manual also requires that all warning labels be kept on the saw and replaced

promptly if any come off. The manual also provides that if the saw is not working

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properly, it should be taken out of service until it can be repaired.

Ryan inspected the bone-in saw approximately one year after Milanes’s

injury. Ryan discovered that most of the saw’s warning labels were missing.3

Ryan also found the blade guard inoperable. He concluded the guard was frozen in

position as a result of the accumulation of either rust or “goop” generated by the

sawing of meat. The blade guard finally moved when he applied fifty pounds of

pressure. Ryan went on to testify that the guard remained very difficult to move

even after he broke it free.

Ryan took several videos during his inspection. One video showed Bell

cutting meat on the bone-in saw. Ryan observed that Bell did not use the blade

guard while cutting the meat and that the guard was at least four inches above the

level of the meat throughout the video.

Ryan opined that if the bone-in saw’s blade guard was not operational on the

day of Milanes’s injury, the saw should not have been in service. Ryan then

opined that if the saw had been taken out of service, Milanes would not have been

injured. He went on to opine that if Kroger had followed OSHA’s standards and

the requirements set forth in the operator’s manual, Milanes also would not have

been injured.

Ryan examined the saw’s blade tension during his inspection. Ryan found

numerous scratch marks on the inside of the saw housing. Ryan explained that the

scratch marks indicate the blade had popped off repeatedly and hit the metal

housing. Ryan opined that this type of contact with the metal housing can dull the

blade.

Ryan then explained that improper blade tension can also cause a wandering

3

Ryan explained that he found a couple of warnings still attached to the motor.

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cut. According to Ryan, when a blade is under-tensioned, it can cause the blade’s

cutting path to wander, which can lead to force being applied to the meat sideways.

This in turn increases the possibility that the saw will bind in the meat or the bone,

causing the meat to be thrown or to roll. Ryan added that this possibility increases

if the blade is also dull. Ryan calculated how much force this saw would apply to

an operator’s hand and found it reasonable that the saw could cause the meat to

roll.

Ryan next addressed the loud screeching sound the bone-in saw exhibited.

Ryan opined that the noise was created by the blade rubbing at high speed against

something, possibly the blade scrapers. Blade scrapers are designed to remove

meat and other debris from the blade to keep the blade clean and operational.

Ryan testified that if the blade is rubbing against one of the blade scrapers, it can

cause the blade to dull at a faster rate than normal.

Finally, Ryan discussed Kroger’s maintenance records for the bone-in saw.

Ryan asked to review all maintenance records for the saw. The first maintenance

record he received from Kroger was dated six days after Milanes’s injury. Ryan

also saw other post-injury records but he never received any maintenance records

pre-dating the injury. Both Underwood, the Post Oak Kroger store manager, and

the primary Kroger employee charged with maintenance on the saw, Brent Nixon,

confirmed the lack of any pre-injury maintenance records for the bone-in saw.

Neither could explain the lack of records.

Milanes called Kroger’s mechanical engineering expert, Thomas Grubbs, to

testify as an adverse witness. Grubbs inspected the bone-in saw two years after

Milanes’s injury. According to Grubbs, a band saw’s primary safeguard for

operator safety is an adjustable blade guard. The blade guard on the bone-in saw

was not operational when he inspected it, however. Grubbs testified that a band

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saw should not be operated if the blade guard is in the raised position.

Grubbs also testified regarding the importance of the manufacturer’s manual

for the saw. Grubbs stated that anyone operating a band saw should read the

operator’s manual first. He then testified that it is an employer’s duty to train

employees who will use a band saw based on the operator’s manual. Grubbs

testified that he believed the operator’s manual for a band saw should be followed.

He then opined that anyone not adequately trained on the operation of a band saw

should not use it. Grubbs also opined that it was important for an employer using

band saws to have written safety policies and procedures in place. Grubbs

explained that written safety policies are important so employees know what they

are supposed to do, and if they have questions, they know where to find the

answers.

Grubbs next covered the importance of a regular inspection and maintenance

program for band saws. Grubbs testified it is vital for an employer to have this

type of program in place because it ensures that the band saws are properly

maintained. Grubbs agreed that it was Kroger’s responsibility to keep the bone-in

saw in good working order. Grubbs also opined that an important part of an

inspection and maintenance program is having properly trained and qualified

personnel performing the inspections and maintenance on a band saw.

Grubbs testified again during Kroger’s case. Grubbs discovered during his

investigation that it was the Kroger meat cutters’ habit not to use the blade guard.

Grubbs then opined that because a piece of meat may vary in its height, it would be

unrealistic, and ridiculous, to expect the meat cutters to adjust the blade guard to

within one half inch of the top of the meat before each cut. Grubbs then opined

that the blade guard, even if it was nonoperational, was not a factor in Milanes’s

accident. Finally, Grubbs testified that during his inspection of the bone-in saw, he

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did not see any defects that would explain Milanes’s accident.

F. Kroger employees testify regarding saw operation and maintenance.

Kroger presented the testimony of several employees during the trial.

Underwood, the top manager at the Post Oak Kroger, was one of them.

Underwood initially testified regarding Kroger’s policies and procedures. When

he was shown Kroger’s Meat/Seafood Department Safety Manual, Underwood

could not locate the band saw maintenance and inspection program. Underwood

then admitted that he did not know for sure whether Kroger had a written policy

regarding inspection and maintenance of those saws. According to Underwood,

only Kroger maintenance personnel should work on the band saws. Expanding on

that, Underwood testified that the only thing meat cutters are authorized to do to

the saws is change the blades. If anything else needs attention, the meat cutter

should notify store management, who would then call in a service person.

Underwood denied being personally aware of any pre-injury safety

complaints about the bone-in saw, including complaints about the saw’s blades

dulling too fast. Underwood explained that he was not the only manager at the

store and the complaints could have been addressed to another manager.

Underwood then testified that there should be a record of any maintenance or

repairs performed on the store’s saws. Underwood was unable to explain why

there were no maintenance records for the bone-in saw predating Milanes’s injury.

Matthew Anderson is a journeyman meat cutter and Kroger meat market

manager. Anderson worked at the Post Oak Kroger about a year before Milanes’s

accident and therefore had no knowledge of the bone-in saw’s condition on the day

of Milanes’s injury. Among other subjects, Anderson testified about cutting meat

with a band saw. According to Anderson, a blade coming off the saw is not

uncommon. Anderson had also experienced meat jumping or rolling. He

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explained that meat jumping is unpredictable but certain circumstances, such as

dull blades, increase the possibility it will happen. Anderson testified that for a

blade to dull in thirty to forty minutes, “the saw would have to be so out of whack,

[he did not] even see how you could use it.” Anderson testified that if a band saw

is making a loud noise, it is a sign that it needs maintenance or repair.

Anderson also testified regarding Kroger’s policies and procedures

regarding band saws. He admitted that he was never shown the operator’s manual

for the bone-in saw and did not know whether Kroger has a policy prohibiting

workers from operating a meat saw without a blade guard in place. Anderson went

on that when he trained people to operate a meat saw, he told them to use the blade

guard and adjust it above the meat for safety reasons. He then admitted, however,

that he would see people cutting meat without using the blade guard.

Javier Duran was the meat market manager for the Post Oak Kroger when

Milanes’s injury occurred. Duran testified that he was taught to use the blade

guard during his training. Duran then admitted that the blade guard was not really

used by the meat cutters at the Post Oak Kroger but was just left in the same

position. Duran denied that Milanes ever complained to him about the bone-in saw

not working properly or about the blades dulling too fast. He also denied telling

Milanes to be conservative when changing blades. Duran admitted that meat

jumps occasionally while it is being cut. According to Duran, meat jumping is

generally unpredictable, but dull blades make it more likely to occur. Duran went

on to explain that a meat cutter should change the blade before it gets so dull that it

will lead to meat jumping.

Brent Nixon was the primary Kroger facility engineer responsible for

maintenance at the Post Oak Kroger at the time Milanes was injured. Nixon’s

duties included maintenance on the Biro band saw even though he had not been

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certified by Biro to perform maintenance on Biro saws. Nixon denied being aware

of any problems with the bone-in saw before the accident. He also did not recall

Milanes telling him that the bone-in saw needed repairs that were not being made.

Nixon also had no explanation for the lack of repair and maintenance records

predating Milanes’s injury. Nixon insisted that maintenance was done on the

bone-in saw prior to Milanes’s injury and that there were records of that work.

Nixon was the facility engineer sent by Kroger to investigate the band saw

several days after Milanes was injured. Nixon testified that he checked all aspects

of the saw thoroughly, and as a final check he turned the saw on and then beat the

moving band saw blade with a broom to “make sure [the blade was] not going to

come off.” Nixon reported that the only problem his investigation revealed was

the lip on the cutting table, which he repaired. Nixon testified he was unable to

find anything that would explain the accident.

G. The trial court signs a final judgment based on the jury’s verdict in

favor of Milanes.

At the conclusion of the evidence, the trial court proposed to submit the case

to the jury on an ordinary negligence theory. Kroger objected to the trial court’s

proposed jury charge and argued the case should be submitted to the jury on a

premises liability theory. The trial court overruled Kroger’s objection and rejected

its proposed premises liability question. The jury subsequently found Kroger

liable and awarded Milanes damages totaling $1,093,440.89. The trial court, after

crediting Kroger for the amount of medical expenses and wages it had already

paid, signed a final judgment awarding Milanes $1,016,809.10 plus pre-judgment

and post-judgment interest. This appeal followed.

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ANALYSIS

I. The jury was properly charged on a negligence theory of liability.

Kroger argues in its first two issues that the trial court erred when it

submitted the case to the jury under a negligence theory of liability. According to

Kroger, it is “well-settled that to state a general negligence claim [against a

landowner], there must be affirmative contemporaneous conduct by the owner at

the time of the incident which led to the plaintiff’s injury.” Kroger contends that

regardless of the theory of liability Milanes pled, Texas law and the evidence

introduced at trial established that the only duty it owed Milanes was that of a

premises owner. As a result, Kroger argues Milanes was limited to a premises

liability theory of recovery. Given that Milanes did not submit such a theory to

the jury, Kroger concludes it is entitled to a take-nothing judgment. We disagree

because under supreme court precedent, Kroger also owed Milanes duties of care

as his employer.

A. Standard of review

A trial court must submit in its charge to the jury all questions, instructions,

and definitions that are raised by the pleadings and the evidence. See Tex. R. Civ.

P. 278; E.I. DuPont de Nemours & Co v. Roye, 447 S.W.3d 48, 56 (Tex. App.—

Houston [14th Dist.] 2014, pet. dism’d) (citing Hyundai Motor Co. v. Rodriguez,

995 S.W.2d 661, 663–64 (Tex. 1999)). The parties have the right to be judged by a

jury properly instructed in the law. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378,

388 (Tex. 2000). The goal therefore, is to submit to the jury the issues for decision

logically, simply, clearly, fairly, correctly, and completely. Roye, 447 S.W.3d at

56. To achieve this goal, trial courts enjoy broad discretion so long as the charge is

legally correct. Id. We review whether a challenged portion of a jury charge is

legally correct using a de novo standard of review. Id. (citing St. Joseph Hosp. v.

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Wolff, 94 S.W.3d 513, 525 (Tex. 2003)). In making this determination, we

examine the allegations and proof introduced at trial. Oncor Electric Delivery Co.,

LLC v. Murillo, 449 S.W.3d 583, 592 (Tex. App.—Houston [1st Dist.] 2014, pet.

filed) (en banc).

B. The pleadings and evidence support the trial court’s submission

of the negligence theory rather than a premises theory.

The Texas Workers’ Compensation Act permits private Texas employers to

elect whether to subscribe to workers’ compensation insurance. Tex. W. Oaks

Hosp., L.P. v. Williams, 371 S.W.3d 171, 186 (Tex. 2012) (citing Tex. Lab. Code

Ann. § 406.002(a) (West 2015)). If an employer elects to subscribe, then its

employees generally are prohibited from suing it and must instead pursue their

claims through an administrative agency. Id. In that administrative proceeding,

employees need prove only that they were injured in the course and scope of their

employment. Id.

If an employer elects to be a non-subscriber to workers’ compensation

insurance, as Kroger has, then it is subject to suits at common law for damages, to

which it can raise only limited defenses. Id. In that situation, an employee injured

on the job must file suit and “prove the elements of a common law negligence

claim.” Id. (citing Tex. Lab. Code Ann. § 406.033(d)); Amigos Meat Distributors,

L.P. v. Elizondo, No. 01-10-00867-CV, 2011 WL 5026227, at *2 (Tex. App.—

Houston [1st Dist.] Oct. 20, 2011, no pet) (mem. op.). To establish negligence, a

party must establish a duty, a breach of that duty, and damages proximately caused

by the breach. Austin v. Kroger Texas, L.P., No. 14-0216, 2015 WL 3641066, at

*12 (Tex. June 12, 2015); Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.

2006).

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

18

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 Austin, 2015 WL 3641066, at *15 (stating

that employer may owe duties to employee in addition to those a landowner owes

an invitee, including duties to train and supervise). Among these are the duties to

(1) furnish a reasonably safe place to work, (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, (5) furnish reasonably safe

instrumentalities with which to work, and (6) provide safety regulations. 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 must also train employees in the safe use and

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

facilities. Austin, 2015 WL 3641066, at *15; Aleman v. Ben E. Keith Co., 227

S.W.3d 304, 311 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An employer

must exercise ordinary care, based on standard negligence principles, in carrying

out these duties. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Werner v.

Colwell, 909 S.W.2d 866, 869 (Tex. 1995); see Elwood, 197 S.W.3d at 794 (“An

employer has a duty to use ordinary care in providing a safe workplace.”).

Milanes alleged and presented evidence during trial that Kroger breached

some of these duties. This evidence includes, but is not limited to: the failure to

provide reasonably safe equipment or instrumentalities necessary for the

performance of Milanes’s job; the failure to provide safety regulations related to

Milanes’s work; and the failure to instruct or train employees in the safe use and

handling of equipment—specifically, the Biro band saw. See Austin, 2015 WL

3641066, at *15. Milanes testified that he was never provided the operator’s

manual for the Biro saw and he was not trained to use the adjustable blade guard

19

on the saw while cutting meat. In fact, he testified he was not even aware that the

saw was equipped with a blade guard at all. In addition, both expert witnesses

testified that the band saw should not be operated when the blade guard is not used

or operational. The evidence also includes testimony from several witnesses that,

prior to Milanes’s injury: (1) the bone-in saw had an inoperable blade guard; (2)

the saw was experiencing continuing problems such as rapidly dulling blades and

improper blade tension; and (3) Kroger was unable to fix the problems yet did not

take the saw out of operation. Because Milanes pled and introduced legally

sufficient evidence demonstrating Kroger negligently breached duties it owed to

him as an employee, we conclude that the trial court did not err when it submitted

the negligence theory of liability to the jury. See id. at *16 (“We therefore reject

Kroger’s argument that its lack of any negligent activity contemporaneous with

[the plaintiff’s injury] defeats [the plaintiff’s] instrumentalities claim as a matter of

law.”); see also Amigos Meat Distributors, L.P., 2011 WL 5026227, at *3

(affirming judgment signed after jury found non-subscribing employer negligent

based on evidence that employer failed to provide operator’s manual for Biro band

saw to employee meat cutter and also failed to train employee adequately on safe

operation of saw).

The cases that Kroger cites in urging that its only duty to Milanes was that of

a premises owner do not change this analysis. Most of Kroger’s cases are

distinguishable because they did not involve the employer/employee relationship.4

4

See, e.g., Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) (involving

suit filed by hotel guest, not employee); In re Texas Dept. of Transp., 218 S.W.3d 74, 75 (Tex.

2007) (involving lawsuit against State of Texas arising out of car wreck); Clayton W. Williams,

Jr., Inc. v. Olivo, 952 S.W.2d 523, 526 (Tex. 1997) (“In this case, we consider the liability of a

general contractor and its on-site representative for injuries to an independent contractor’s

employee.”); Dallas Market Center Development, Co. v. Liedeker, 958 S.W.2d 382, 383 (Tex.

1997) (concerning lawsuit filed by delivery person injured while loading flowers onto hotel’s

elevator) (overruled on other grounds by Torrington Co. v. Stutzman, 46 S.W.3d 839 (Tex.

20

The remainder of Kroger’s cases involved employees injured by a premises

condition or by conduct of a third party, neither of which is at issue.5 Thus, as

Kroger conceded at oral argument, none of these cases control the outcome here.6

The supreme court recently confirmed that, “[a]s [plaintiff’s] employer,

Kroger owed [him] duties in addition to its premises-liability duty and its duty not

to engage in negligent activities, including the duty to provide [the plaintiff] with

necessary instrumentalities.” Austin, 2015 WL 3641066, at *15. We therefore

overrule Kroger’s first two issues on appeal.

II. Milanes introduced legally and factually sufficient evidence that

Kroger’s negligence proximately caused Milanes’s injuries and that he

suffered lost earning capacity as a result of those injuries.

In its third issue, Kroger attacks the legal and factual sufficiency of the

evidence of causation. In its fourth issue, Kroger contends Milanes introduced

legally and factually insufficient evidence that his earning capacity was negatively

impacted by his injury. We address each contention in turn.

2000)); Keetch v. The Kroger Co., 845 S.W.2d 262, 263 (Tex. 1992) (customer, not employee,

filed suit for injury sustained on defendant’s premises); Foodtown v. Tanguma, No. 01-11-

00047-CV, slip op. at 2 (Tex. App.—Houston [1st Dist.] Dec. 22, 2011, no pet.) (same).

5

See, e.g., Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238, 240 (Tex. 1955)

(employee injured by premises condition rather than instrumentality) (overruled by Austin v.

Kroger Texas, L.P., No. 14-0216, 2015 WL 3641066, at *12 (Tex. June 12, 2015)); Barton v.

Whataburger, Inc., 276 S.W.3d 456, 466–67 (Tex. App.—Houston [1st Dist.] 2008, pet. denied)

(plaintiff-employee victimized by third-party criminal act on employer’s premises); Allen v.

Connolly, 158 S.W.3d 61, 63 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same).

6

During oral argument, Kroger was unable to identify a case dictating the outcome it

seeks in its first issue. Kroger instead asked this Court to change the law. This we cannot do

because changing higher-court precedent is not the function of an intermediate court of appeals.

See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 195 (Tex. App.—Houston [14th

Dist.] 2002, no pet.) (“we must follow the Texas Supreme Court's expressions of the law and

leave changes in the application of common-law rules to that higher authority”); see also Entergy

Gulf States, Inc. v. Summers, 282 S.W.3d 433, 476 (Tex. 2009) (Willet, J., concurring) (“Judges

have no authority to second-guess the myriad policy judgments codified in the Workers’

Compensation Act”).

21

A. Standard of review

When an appellant attacks the legal sufficiency of an adverse finding on an

issue on which it did not have the burden of proof, the appellant must demonstrate

on appeal that there is no evidence to support the adverse finding. Univ. Gen.

Hosp., L.P. v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 550 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). In conducting a legal sufficiency review, we

must consider the evidence in the light most favorable to the appealed finding and

indulge every reasonable inference that supports it. Id. at 550–51 (citing City of

Keller v. Wilson, 168 S.W.3d 802, 821–22 (Tex. 2005)). The evidence is legally

sufficient if it would enable reasonable and fair-minded people to reach the

decision under review. Id. at 551. This Court must credit favorable evidence if a

reasonable trier of fact could, and disregard contrary evidence unless a reasonable

trier of fact could not. Id. The trier of fact is the sole judge of the witnesses’

credibility and the weight to be given their testimony. Id.

This Court may sustain a legal sufficiency (or no evidence) issue only if the

record reveals one of the following: (1) the complete absence of evidence of a vital

fact; (2) the court is barred by rules of law or evidence from giving weight to the

only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital

fact is no more than a scintilla; or (4) the evidence established conclusively the

opposite of the vital fact. Id. Evidence that is so weak as to do no more than

create a mere surmise or suspicion that the fact exists is less than a scintilla. Id.

In reviewing the factual sufficiency of the evidence, we must examine the

entire record, considering both the evidence in favor of, and contrary to, the

challenged findings. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–

07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party

challenges the factual sufficiency of the evidence supporting a finding for which it

22

did not have the burden of proof, we may set aside the verdict only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. See Ellis, 971 S.W.2d at 407; Barnhart v. Morales, 459 S.W.3d 733, 745

(Tex. App.—Houston [14th Dist.] 2015, no pet.). The amount of evidence

necessary to affirm is far less than the amount necessary to reverse a judgment.

Barnhart, 459 S.W.3d at 745. This Court is not a factfinder. Id. (citing Ellis, 971

S.W.2d at 407). Instead, the jury is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Id. We may not, therefore,

pass upon the witnesses’ credibility or substitute our judgment for that of the jury,

even if the evidence would also support a different result. Id. If we determine the

evidence is factually insufficient, we must detail the evidence relevant to the issue

and state in what regard the contrary evidence greatly outweighs the evidence in

support of the verdict; we need not do so when affirming a jury’s verdict. Id.

(citing Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per

curiam)).

B. Sufficient evidence supports the jury’s finding that Kroger’s

negligence proximately caused Milanes’s injury.

To prevail on a negligence claim, a plaintiff must prove not only that the

defendant breached a duty, but also that he sustained damages proximately caused

by that breach. Torres v. Teassier, 231 S.W.3d 60, 63 (Tex. App.—Houston [14th

Dist.] 2007, no pet.) (citing D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.

2002)). Proximate cause consists of two elements: cause in fact and foreseeability.

Del Lago Partners, Inc., 307 S.W.3d at 774.

Cause in fact means that the defendant’s act or omission was a substantial

factor in bringing about the injury, which would not otherwise have occurred.

Western Investments, Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). Cause in

23

fact is not shown if the defendant’s conduct did no more than furnish a condition

that made the injury possible. Id. The second element of proximate cause,

foreseeability, requires that a person of ordinary intelligence should have

anticipated the danger created by the negligent act or omission. Doe v. Boys Clubs

of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). These elements cannot

be established by mere conjecture, guess, or speculation. Id. at 477. Proximate

cause may, however, be established by direct or circumstantial evidence and the

reasonable inferences drawn from that evidence. Pilgrim’s Pride Corp. v. Smoak,

134 S.W.3d 880, 889 (Tex. App.—Texarkana 2004, pet. denied) (citing McClure v.

Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex. 1980)).

As detailed in the background section, Milanes introduced evidence that

Kroger failed to maintain the Biro band saw properly. This includes evidence that

Brent Nixon, the primary Kroger employee charged with maintaining and repairing

the store’s bone-in band saw, was not certified by the saw’s manufacturer. The

jury also heard evidence that Bell, a meat cutter and relief meat market manager,

frequently attempted to repair the saw when employees reported problems to him

despite Kroger’s stated policy that the only thing meat cutters should do to a band

saw was change out a dull blade. Other evidence of improper maintenance

includes the lack of maintenance records and the meat cutters’ testimony that

problems with the saw were reported but never fixed.

Evidence of improper maintenance also included that the blade guard on the

saw was inoperable and a loud noise emanated from the saw. Witnesses testified

the noise could be caused by the blade hitting the blade scrapers or by incorrect

blade tension. Numerous witnesses testified that improper blade tension was a

frequent problem encountered while using the bone-in saw. Ryan, Milanes’s

mechanical engineering expert, testified that improper blade tension can cause a

24

wandering cut, increasing the possibility that the blade will bind in the meat and

cause the meat to roll.

Evidence showed that if the tension on the blade is incorrect, it can cause the

blade to pop off, resulting in the blade hitting the metal saw housing. Witnesses

testified that they had experienced the blade popping off this saw, as confirmed by

scratch marks on the inside of the housing. Ryan testified that frequent contact

with the metal saw housing results in the rapid dulling of the saw’s blade.

Witnesses also testified that the bone-in saw’s blade dulled at a very rapid rate,

often within thirty to forty minutes of putting on a new blade. Kroger witnesses

confirmed that if the blades were dulling at such a fast pace, something was very

wrong with the saw.

Every meat cutter who testified during the trial agreed that meat sometimes

jumps or rolls when it is being cut, and that it is normally unpredictable when

jumping or rolling will happen. Several testified, however, that the probability of

meat jumping or rolling increases when the saw’s blade is dull. Milanes himself

testified he reported to Kroger management that the saw was frequently catching

the meat and sucking it into the blade. He also testified that he noticed the blade

was dull the day of his injury. Although Milanes had the discretion to change out a

dull blade when he deemed it necessary, he testified that he was encouraged by

store managers to be conservative when using blades and that there was a financial

incentive for those managers to come in under budget.7

Apart from improper maintenance and problems with blade tension and

dulling, there was also evidence that Kroger failed to provide safety regulations

and train Milanes and other employees properly on the safe operation of the Biro

7

A non-subscribing employer may not assert any negligence by an employee as a

defense. See Tex. Lab. Code Ann. § 406.033(a) (West 2015).

25

band saw—particularly that the blade guard should be used at all times. Milanes

testified that he was not even aware of the existence of a blade guard and was not

using it on the day of his injury. There was also evidence that (1) it was the

common practice of Kroger’s meat cutters to not use the blade guard, and (2)

Kroger managers were aware of this practice but chose to do nothing about it.

Both expert witnesses testified that a band saw should not be used without the

blade guard. Ryan explained that the accident would not have occurred, and

Milanes would not have been injured, if the blade guard had been used as required

by the operator’s manual.

For these reasons, we conclude there is legally and factually sufficient

evidence that Kroger’s breach of the duties to provide safe equipment and safety

regulations and to train employees in the safe use of equipment proximately caused

Milanes’s injury. We overrule Kroger’s third issue on appeal.

C. Sufficient evidence shows that Milanes lost earning capacity as a

result of his injury.

In its third issue, Kroger contends Milanes presented legally and factually

insufficient evidence of lost earning capacity resulting from the amputation of

three fingers on his dominant right hand while he was cutting meat with Kroger’s

bone-in saw. In making this argument, Kroger points out that Milanes returned to

work at the same Kroger store following his injury at the same rate of pay. It goes

on to argue that the only reason he lost this job was the result of his own

insubordination, and thus there is no evidence of lost earning capacity as a result of

his injury. Kroger makes no other argument about the insufficiency of the

evidence supporting the jury’s award of $151,744 in damages for lost earning

capacity.

Loss or impairment of earning capacity is a recognized element of damages

26

in a personal injury case. Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 435

(Tex. App.–Houston [14th Dist.] 2002, no pet.). Earning capacity has been defined

as the ability and the fitness to work in gainful employment for any type of

compensation, including salary, commissions, and other benefits. Id. at 435 n.2.

The plaintiff has the burden of proving loss of earning capacity. Id. The measure

of this type of damage is the plaintiff’s diminished earning power or earning

capacity, in the past or future, directly resulting from the injuries sustained in the

accident. Id. To support an award of damages for lost earning capacity, the

plaintiff generally must introduce evidence from which a jury may reasonably

measure in monetary terms his earning capacity prior to injury. Id. at 435–436.

Specific proof of actual earnings and income are evidence of lost earning capacity.

Id. at 436.

The jury heard evidence regarding Kroger’s treatment of Milanes after his

injury. This includes testimony that as soon as four weeks after his accident,

Kroger began pressuring Milanes to return to work. The record also contains

evidence that once Milanes returned, he was put back to work in the meat

department in close proximity to the department’s band saws despite his doctors’

concerns that he should not be required to work around the bone-in saw. The jury

also heard Underwood’s testimony that Milanes could possibly transfer out of the

meat department, but his pay rate would be different if he did so. There was also

evidence that once Milanes returned to work on light duty, he had no specific job

duties, but instead did little more than talk to customers.

The jury heard the testimony addressing Milanes’s termination, including

Underwood’s testimony that Milanes was fired for insubordination when he

refused to carry out an order to change the meat department hose. They also heard

Milanes’s testimony that he was still on light duty and experiencing pain in his

27

right hand at that time. Although Milanes admitted that he did not tell Underwood

that he was physically incapable of doing the task, he did tell Underwood that his

refusal was a light duty issue. As the trier of fact and sole judge of the credibility

of the witnesses, the jury could have disbelieved Underwood’s testimony that

Milanes was fired for insubordination, believed that Milanes refused to change out

the hose due to the condition of his injured hand and sufficiently informed

Underwood of that fact, and found that the termination was related to Milanes’s

injury. Kroger has not briefed any challenge to Milanes’s testimony regarding his

post-termination inability to secure other long-term employment due to his injury,

nor has it challenged the testimony of Milanes’s expert economist quantifying

Milanes’s loss of past and future earning capacity.8

We hold there is legally and factually sufficient evidence supporting the

jury’s finding that Milanes’s loss of earning capacity resulted from his work-

related injury. We overrule Kroger’s fourth issue on appeal.

III. The trial court did not abuse its discretion when it admitted Milanes’s

post-accident photographs and videos into evidence.

Kroger asserts in its fifth issue that the trial court abused its discretion when

it admitted into evidence five photographs (Plaintiff’s Exhibits 5, 6, and 7) and

three videos (Plaintiff’s Exhibits 10, 12, and 13) taken by Milanes after he returned

to work.9 According to Kroger, the trial court should have excluded the

8

Milanes testified regarding his desire to work, his inability to do manual-labor jobs like

those he had been trained to perform, and his departure from a job pulling parts at a warehouse

because he kept dropping the parts. His expert, Dr. Donald Huddle, testified regarding Milanes’s

loss of his Kroger salary ($16.69 per hour) and benefits up to the time of trial. He also testified

regarding the present value of the salary and benefits Milanes would lose over his expected

future work life, assuming that Milanes would be able to find employment at a lower salary. The

jury awarded approximately the amount Dr. Huddle calculated for past lost earning capacity, and

less than half of the lowest amount he calculated for future lost earning capacity.

9

In a letter brief filed following oral argument, Kroger identified a sixth photograph,

Plaintiff’s Exhibit 8, as a photograph it was challenging the admission of on appeal. Kroger did

28

photographs and videos because they were taken illegally and also because they

were not relevant given that all were taken after the accident.

A. Standard of review

The decision to admit or exclude evidence lies within the sound discretion of

the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234

(Tex. 2007). A trial court exceeds its discretion if it acts in an arbitrary or

unreasonable manner or without reference to guiding rules or principles. Barnhart,

459 S.W.3d at 742 (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002)). When reviewing matters committed to the trial court’s discretion, a

reviewing court may not substitute its own judgment for that of the trial court. Id.

Thus, the question is not whether this court would have admitted the evidence.

Rather, an appellate court will uphold the trial court’s evidentiary ruling if there is

any legitimate basis for the ruling, even if that ground was not raised in the trial

court. Id. Therefore, we examine all bases for the trial court’s decision that are

suggested by the record or urged by the parties. Id.

A party seeking to reverse a judgment based on evidentiary error must prove

that the error probably resulted in rendition of an improper judgment, which

usually requires the complaining party to show that the judgment turns on the

particular evidence excluded or admitted. Id. To determine whether evidentiary

error probably resulted in the rendition of an improper judgment, an appellate court

reviews the entire record. Id. (citing Interstate Northborough P’ship v. State, 66

S.W.3d 213, 220 (Tex. 2001)).

not, however, object to the admission of Exhibit 8 during trial. Kroger therefore has not

preserved its complaint regarding the admission of this photograph for appellate review. Tex. R.

App. P. 33.1; Grace Interest, L.L.C. v. Wallis State Bank, 431 S.W.3d 110, 122 (Tex. App.—

Houston [14th Dist.] 2013, pet. denied).

29

B. Kroger has not shown an abuse of discretion in admitting the

challenged photographs and videos.

Kroger makes two separate arguments in its fifth issue. First, it asserts that

the challenged photographs and videos should have been excluded because they

were obtained by illegal means. Second, Kroger contends the photographs and

videos were not relevant because they were taken months after Milanes was

injured. We address Kroger’s second contention first.

1. The challenged photographs and videos were relevant.

Relevant evidence is evidence that has a tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence. Tex. R. Evid. 401. Relevant

evidence is generally admissible, irrelevant evidence is generally inadmissible. Id.

at 402. Facts existing both before and after an event in controversy may be

relevant to establishing the cause of that event. City of Houston v. Leach, 819

S.W.2d 185, 191 (Tex. App.—Houston [14th Dist.] 1991, no writ).

Generally, pictures or photographs relevant to any issue in a case are

admissible. Huckaby v. A.G. Perry & Sons, Inc., 20 S.W.3d 194, 209 (Tex.

App.—Texarkana 2000, pet. denied). When a photograph or video portrays facts

relevant to an issue, it is admissible if verified by a witness as being a correct

representation of the facts. Cheek v. Zalta, 693 S.W.2d 632, 635 (Tex. App.—

Houston [14th Dist.] 1985, no writ). The verifying witness must know the object

involved and be able to state that the photograph or video correctly represents it.

Id. The fact that the scene or the object portrayed in the photograph or video has

changed since the time of the event in question in the litigation does not prevent

the admission of the photograph or video into evidence if the changes are

explained in such a manner that the photograph or video will help the jury in

30

understanding the nature of the condition at the time of the event at issue. Id.

Indeed, the parties’ experts inspected the saw well after Milanes took the

challenged photos and videos, and photos and videos from expert Ryan’s

inspection were also introduced into evidence. A dispute as to the accuracy of

some part of the photograph or video usually goes only to the weight of the

evidence, not to its admissibility. See id.; see also Garza v. Cole, 753 S.W.2d 245

247 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (stating that

conditions shown in video need not be identical to those at time of event in

question for video to be admissible into evidence).

Plaintiff’s Exhibit 5 is a photograph of the Post Oak Kroger’s bone-in saw

wrapped in clear plastic. Plaintiff’s Exhibit 6 contains three photographs of the

blade cleaners on the same bone-in saw. William Quintero, a journeyman meat

cutter at the Post Oak Kroger, testified that these photographs fairly and accurately

depicted the bone-in saw Milanes was using. Plaintiff’s Exhibit 7 is another

photograph of the Post Oak Kroger’s bone-in saw. Milanes testified that he took

the photograph and that it fairly and accurately depicted the bone-in saw he used.

Because witnesses testified that the challenged photographs accurately depicted the

bone-in saw, we conclude that the trial court did not abuse its discretion when it

overruled Kroger’s relevance objections and admitted Exhibits 5, 6, and 7 into

evidence. See Cheek, 693 S.W.2d at 635.

Plaintiff’s Exhibit 10 is a 28-second video showing the bone-in saw running

with a loud noise emanating from it. Milanes testified that Exhibit 10 portrayed

the bone-in saw and that the noise heard on the video was the same as the noise the

saw was making when he was injured. Plaintiff’s Exhibit 12 is another brief video.

Milanes, who took the video, testified that it showed a boneless band saw at the

Post Oak Kroger, which was running correctly. The saw shown in Exhibit 12 did

31

not emit a loud noise while it was running. Plaintiff’s Exhibit 13 is a 14-second

video of a non-operational bone-in saw at the Post Oak Kroger. The video shows

that the blade had popped off the saw. On the video, Milanes says: “once again the

saw is broken in the same day they said they fixed it.” Milanes testified that the

videos portrayed the same circumstances that were present before he was injured

and they would be helpful to the jury during his testimony. We conclude that the

trial court did not abuse its discretion when it overruled Kroger’s relevance

objections and admitted the three videos into evidence. See Cheek, 693 S.W.2d at

635.

2. The challenged photographs and videos were not illegally obtained.

Kroger also objected to the admission of the photographs and videos based

on its contention that they were all taken illegally. Kroger cites no authority

supporting its position. Cf. Tex. Civ. Prac. & Rem. Code Ann. § 123.002 (West

2011) (creating a civil cause of action against a person who intercepts another

person’s communication); Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005)

(providing that no evidence obtained in violation of either the constitution or laws

of the United States or the State of Texas “shall be admitted in evidence against the

accused on the trial of any criminal case.”). Further, we find nothing in the record

to suggest that Milanes committed either the offense of criminal trespass, Tex.

Penal Code Ann. § 30.05 (West Supp. 2014), or the offense of improper

photography or visual recording. Id. § 21.15 (West 2011). We hold that the trial

court did not abuse its discretion when it overruled Kroger’s “illegally obtained”

objection and admitted the challenged photographs and videos into evidence.

Having rejected each argument raised by Kroger in its fifth issue, we overrule that

issue.

32

IV. Kroger has not shown that it was harmed by the trial court’s alleged

failure to intervene to remedy perceived juror misconduct.

In its sixth issue, Kroger contends the trial court abused its discretion when

it refused to grant Kroger a new trial based on the allegation that the trial court

failed to intervene timely to correct potential juror misconduct. We conclude

Kroger is not entitled to a new trial because it has not demonstrated it was harmed

as a result of any alleged failure to intervene by the trial court.

Kroger’s motion for new trial attached an affidavit from one of the jurors in

the case. In the affidavit, the complaining juror stated that after the jury began its

deliberations, she came to believe that some other members of the jury were

violating instructions contained in the court’s charge. The complaining juror

alleged that, during the jury’s deliberations, an attorney member of the jury offered

his own definitions of legal phrases and words derived from his own personal

experience as an attorney. The complaining juror also alleged that a second juror

contributed her thoughts based on her personal experience as a legal assistant. The

complaining juror did not allege that any outside influence was brought to bear on

the jurors during their deliberations. The complaining juror stated that she asked,

through the bailiff, to speak with the trial judge about her concerns; however, the

trial judge did not speak with the juror during the remainder of the jury’s

deliberations.

The jury reached and delivered its 10-2 verdict in favor of Milanes. The

complaining juror, believing that the misconduct she perceived had impacted the

jury’s verdict, alleged that she again asked to speak with the trial judge. According

to the complaining juror, the trial judge was in court at the time, and the juror was

told she could wait until he was finished to speak with him. The complaining juror

decided to leave the courthouse before the trial judge was able to speak with her,

33

however.

During the hearing on Kroger’s motion for new trial, the trial judge stated

that he had addressed with the parties a prior complaint made by this juror

following jury selection, but that he was not provided notice of the juror’s alleged

request during deliberations. The trial judge found the juror’s allegations not

credible and denied the motion for new trial.

Kroger argues it is entitled to a new trial based on judicial misconduct:

specifically, the trial court’s failure to investigate the complaining juror’s

allegations that members of the jury had violated the trial court’s instructions

during their deliberations. To reverse a judgment on the basis of judicial

misconduct, a reviewing court must conclude both that judicial impropriety

occurred and that the complaining party suffered harm. See Silcott v. Oglesby, 721

S.W.2d 290, 293 (Tex. 1986); Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied). Because we conclude that Kroger

has not shown it was harmed as a result of the trial court’s alleged failure to

intervene to correct the perceived juror misconduct, we need not decide whether

any judicial impropriety occurred, and we therefore express no view on that issue.

Given that the complaining juror’s allegations did not involve outside

influence, Kroger’s attempt to show harm through an examination of the jury’s

discussions during its deliberations is prohibited by both Rule 327(b) of the Texas

Rules of Civil Procedure and Rule 606 of the Texas Rules of Evidence. See Tex.

R. Civ. P. 327(b) (“A juror may not testify as to any matter or statement occurring

during the course of the jury’s deliberations or to the effect of anything upon his or

any other juror’s mind or emotions as influencing him to assent or dissent from the

verdict concerning his mental processes in connection therewith, except that a juror

may testify whether any outside influence was improperly brought to bear upon

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any juror.”); Tex. R. Evid. 606(b) (prohibiting a juror from testifying about jury’s

deliberations unless allegation involves outside influence). Kroger admits there

was no outside influence brought to bear on the jury.

Instead, Kroger argues that certain jurors violated the trial court’s

instructions during the jury’s internal deliberations. To substantiate this claim,

Kroger offers only the affidavit testimony of a member of the jury regarding

deliberations—evidence that Kroger is prohibited from using.10 See id. Because

we (like the trial court) cannot consider the only evidence offered by Kroger to

establish it was harmed by the judge’s alleged misconduct in failing to address the

jurors’ perceived violations during deliberations, we conclude Kroger has failed to

show harm. Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex.

2000) (holding that rules prevent juror from testifying that jury discussed improper

matters during deliberations). Thus, the trial court did not abuse its discretion in

denying Kroger’s motion for new trial. We overrule Kroger’s sixth issue.

CONCLUSION

Having overruled each of the issues Kroger raised in this appeal, we affirm

the trial court’s judgment.

/s/ J. Brett Busby

Justice

Panel consists of Justices Jamison, Busby, and Brown.

10

Of course, the juror’s allegation that she asked the bailiff for an opportunity to speak to

the trial judge about her concerns regarding deliberations is not itself evidence of matter

occurring during deliberations, though the trial judge found her allegations not credible. Yet

even if we assumed for the sake of argument that the request was made and the trial court should

have pursued it, the court would have learned no more than the allegations in the juror’s affidavit

regarding what occurred in deliberations, which “cannot form the basis of a motion for new

trial.” In re Zimmer, Inc., 451 S.W.3d 893, 897 n.1 (Tex. App.—Dallas 2014, orig. proceeding).

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