Thatcher, Russell G. v. Amanda Yarborough

Opinion issued November 21, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-00-00788-CV

RUSSELL G. THATCHER, Appellant

V.

AMANDA YARBOROUGH, Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 97-02965

O P I N I O N

This is a premises liability case between a landlord and a tenant. The landlord,

Russell G. Thatcher, is appealing an adverse jury verdict in favor of the tenant,

Amanda Yarborough, for injuries she suffered to her back as a result of falling on the

backdoor steps of her rent house. The jury awarded appellee $164,756.00 for her

injuries.

In four points of error, appellant contends that chapter 92 of the property code

bars appellee’s common law personal injury claim and that the evidence is legally and

factually insufficient to support the jury’s finding on liability and damages. We

affirm the judgment.

‒ The Evidence

The undisputed evidence established that from August 1995 until January

1997, appellee rented a house from appellant as her primary residence. Appellee

testified that over a short period of time, the house deteriorated to the point where she

could no longer open the front door. Apparently, the house’s frame had shifted

significantly and the front door was literally impossible to open. As a result, appellee

was forced to use the backdoor of the house as her only means of entrance.

According to her testimony, the steps leading up to the backdoor of the house were

very unstable and dangerous to use. She testified that a board on the bottom of the

steps was loose and that it shifted when she walked on it.

As proof of the condition of the steps, appellee introduced into evidence a

videotape and four pictures which depicted the condition of the steps. The videotape

also showed how the front door of the house could not be opened from either side.

After the jury viewed the videotape, appellee testified that she informed

appellant’s father, Russell S. Thatcher, that the steps needed immediate repairs.

On

the same day, appellant’s father went to the house to take a look at the problem. In

an attempt to repair what he called an “emergency,” he placed two bricks under the

steps for support. According to appellee, his “emergency” repairs actually made the

steps worse, not better.

Almost three weeks after the “emergency” repairs, while appellee was walking

down the steps, the board shifted beneath her and she fell on her back. Immediately,

she began experiencing severe pain in her lower back. She testified that for several

months she did nothing but lie on the couch because the pain in her back limited her

mobility.

Ultimately, appellee was taken to the emergency room to have her back

examined. Approximately a month later, she had surgery to fix what was diagnosed

as a herniated disk.

In addition, appellee testified that she continues to experience severe pain in

her back on a daily basis. She testified that she has experienced a significant loss of

strength in her right leg, which ultimately caused her to fall several times since her

surgery. She testified that a year after her fall, she twisted her back while shopping

at a Kroger’s grocery store. She also told the jury that she fell yet again after her right

leg buckled underneath her while she was walking in her backyard.

During appellant’s father’s testimony, he corroborated the majority, if not all,

of appellee’s testimony. He stated that he was responsible for making repairs to the

house where appellee fell. He also admitted that he was aware that the steps behind

appellee’s house were in need of repair. When asked to characterize the condition of

the steps and also his actions, appellant’s father testified as follows:

Q. And the steps, I believe your attorney may have called it an emergency

repair. Would you characterize it as an emergency repair?

A. Well, definitely it would be an emergency, yes.

Q. It would be an emergency? Why is that, sir?

A. Well, someone - -

Q. Could have gotten hurt?

A. Could possibly slip and fall.

Q. Sure. Okay. And you put some bricks underneath the bottom step.

Right?

A. That’s right.

Q. You intended to come back and finish the repairs at a later time. True?

A. Yes.

Q. You never finished the repairs while my clients were living in the

house. Isn’t that true?

A. No. I came back.

Q. Right.

A. But I didn’t finish it.

Q. Okay. And of course, sir, you would admit that in putting the bricks

under the bottom step it was an emergency repair. You would agree

that to say repairs were not done in a workmanlike manner. Isn’t

that true sir?

A. No. That’s right.

Q. That is correct?

A. That’s right.

Q. Okay. And then after my clients moved out you replaced the steps in

their entirety. Isn’t that true?

A. True.

Appellant testified, in pertinent part, as follows:

Q. . . . Would you agree with me that a landlord has a duty to maintain a

safe premises for his tenants?

A. Yes.

Q. And that was something you entrusted your father to do?

A. Him and me. If he needed help he would call upon me.

. . . .

Q. Do you agree with your father’s characterization that there were

emergency repairs done in an unworkmanlike manner?

A. Yes. I wasn’t there to directly witness the event.

. . . .

Q. But at least to some extent you knew that the steps needed some

repair?

A. Yes. I was aware - - I’d been made aware of the problem.

. . . .

Q. We just heard his testimony that those steps were not repaired in a

workmanlike manner?

A. The first time, no. The second - - well, he didn’t say - - I don’t

remember him saying one way or the other.

Q. That’s right. He did. Didn’t replace the steps a week later, did you?

A. No.

Q. Didn’t replace the steps a month later. Correct?

A. No.

Q. Would a month’s worth of time be enough time for y’all to get some

tools, replace the steps? Would that be enough time?

A. Yes. I would think so.

. . . .

Q. . . . And ultimately after the Yarboroughs moved out, y’all replaced the

steps altogether?

A. Yes.

. . . .

Q. . . . So replacing the steps originally, I guess, would have been a good

idea?

A. Yes. Based on what’s happened, it would have been a better course of

action.

(Emphasis added.)

Next, Dr. Mool Nigam, a specialist in neurology, testified by deposition as an

expert. He testified that he first saw appellee on December 18, 1996 when he

performed a physical examination on her. He stated that appellee told him that she

had fallen approximately six weeks prior to her visit and she was experiencing some

pain in her lower back. Dr. Nigam performed an MRI on appellee and the MRI

showed evidence of a herniated disk. He immediately referred her to Dr. Edward

Murphy, a neurosurgeon, who performed a laminectomy on appellee in order to help

relieve some of her pain.

According to Dr. Nigam, the initial fall and subsequent surgery left appellee’s

back in a vulnerable state, prone to reinjury. Further, Dr. Nigam testified that

appellee continues to come to his office with complaints of pain. He testified that in

his opinion, based upon a reasonable degree of medical probability, appellee’s fall at

the backdoor steps caused the herniated disk. Dr. Nigam stated that in all likelihood,

appellee would live with pain for the rest of her life. He stated that appellee would

simply have to suffer and put up with the pain.

Finally, pursuant to section 18.001 of the Civil Practice and Remedies Code,

appellee introduced into evidence, without objection, her past medical bills

of

$18,067. Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon 1997). The

individual totals from each medical facility or doctor were as follows:

1. Columbia Bayshore Medical Center $8,980.00

2. Dr. Leventhal $ 657.35

3. Dr. Murphy $4,560.00

4. Dr. Nigam $1,570.00

5. Dr. Pakzaban $ 650.00

6. River Oaks Imaging $1,519.00

7. Dr. Andrew $ 130.93

$18,067.28

CHAPTER 92 OF THE PROPERTY CODE

In connection with his first point of error, appellant agues that under chapter

92 of the property code, he did not owe appellee a duty to repair the steps because she

failed to provide him with “subsequent written notice” of the problem as required by

section 92.056(b)(3) of the property code. Tex. Prop. Code Ann. § 92.056(b)(3)

(Vernon 2001). However, the evidence establishes that appellant had actual notice

of the defect in the steps, and appellant was aware that the “emergency repair” was

inadequate to correct the defect. Even if chapter 92 applies to this case, no

“subsequent written notice” from appellee was necessary.

We overrule appellant’s first argument regarding chapter 92.

LEGAL AND FACTUAL SUFFICIENCY

Additionally, in his first three points of error, appellant contends that the

evidence was legally and factually insufficient to support the jury’s finding on

liability and damages.

‒ Standard of Review

When, as here, a party without the burden of proof challenges the sufficiency

of the evidence, we will sustain the legal sufficiency challenge only if, considering

the evidence and inferences in the light most favorable to the finding, there is no more

than a scintilla of evidence supporting it. Minnesota Mining & Mfg. Co. v. Nishika

Ltd. , 953 S.W.2d 733, 738 (Tex. 1997); Sherman v. First Nat’l Bank , 760 S.W.2d

240, 242 (Tex. 1988).

If there is some evidence supporting a finding, we then conduct a factual

sufficiency review. We will sustain a factual sufficiency challenge only if, after

viewing all the evidence, the evidence is so weak or the verdict so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.

Bain , 709 S.W.2d 175, 176 (Tex. 1986).

Also, as we examine the evidence, we remain mindful that the jury is the sole

judge of a witness’s credibility and the weight to be given the testimony. See Neese

v. Dietz , 845 S.W.2d 311, 313 (Tex. App.—Houston [1st Dist.] 1992, writ denied).

The jury may accept or reject the testimony of any witness in whole or in part. Id.

An appellate court cannot substitute its opinion for that of the jury. Id. at 314-15 .

Moreover, when reviewing legal and factual sufficiency complaints, “it is the

court’s charge, not some other unidentified law, that measures the sufficiency of the

evidence when the opposing party fails to object to the charge.” Osterberg v. Peca ,

12 S.W.3d 31, 55 (Tex. 2000); see also City of Fort Worth v. Zimlich , 29 S.W.3d 62,

71 (Tex. 2000) (holding that when no objection was made to jury instruction,

evidence to support finding based on instruction should be assessed “in light of” the

instruction given); Larson v. Cook Consultants, Inc ., 690 S.W.2d 567, 568 (Tex.

1985) (same). Therefore, we will evaluate appellant’s sufficiency challenges based

solely on the charge given to the jury.

Elements of Premises Liability

Although appellee pled a number of different causes of action, including

negligence, gross negligence, negligence per se, and breach of contract, the evidence

presented at trial and the charge to the jury was consistent with a premises-liability

case. To succeed in a premises-liability suit, a plaintiff must prove the following: 1)

the defendant had actual or constructive knowledge of some condition on the

premises, 2) the condition posed an unreasonable risk of harm, 3) the defendant did

not exercise reasonable care to reduce or eliminate the risk, and 4) the defendant’s

failure to use reasonable care proximately caused the plaintiff’s injuries. Wal-Mart

Stores, Inc. v. Gonzalez , 968 S.W.2d 934, 936 (Tex. 1998); State Dep’t. of Highways

& Pub. Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992).

The Charge

In this case, the jury charge tracked the elements listed above and included the

following jury questions and relevant instructions (the jury’s answers to the questions

are underlined):

Question No. 1

Did the negligence, if any, of those named below proximately cause the

occurrence in question?

With respect to the condition of the premises, Russell G. Thatcher was

negligent if -

a. The condition posed an unreasonable risk of harm, and

b. Russell G. Thatcher knew or reasonably should have known of

the danger, and

c. Russell G. Thatcher failed to exercise ordinary care to protect

Amanda Yarborough from danger, by both failing to adequately

warn Amanda Yarborough of the condition and failing to make

that condition reasonably safe.

“Negligence,” with respect to the conduct of Amanda Yarborough, means

failure to use ordinary care, that is, failing to do that which a person of ordinary

prudence would have done under the same or similar circumstances, or doing that

which a person of ordinary prudence would not have done under the same or similar

circumstances.

“Ordinary care” means that degree of care that would be used by a person or

entity of ordinary prudence under the same or similar circumstances.

“Proximate cause” means that cause which, in a natural and continuous

sequence, produces an event, and without which cause such event would not have

occurred. In order to be a proximate cause, the act or omission complained of must

be such that a person or entity using ordinary care would have foreseen that the event,

or some similar event, might reasonably result therefrom. There may be more than

one proximate cause of an event.

Answer “Yes” or “No” for each of the following:

a. Russell G. Thatcher Yes

b. Amanda Yarborough Yes

Question No. 2

What percentage of the negligence that caused the occurrence do you find to

be attributable to each of those found by you, in your answer to Question No. 1, to

have been negligent?

The percentages you find must total 100 percent. The negligence attributable

to those named below is not necessarily measured by the number of acts or omissions

found.

Answer by stating a percentage.

a. Russell G. Thatcher 80 %

b. Amanda Yarborough 20 %

Question No. 3

What sum of money, if paid now in cash, would fairly and reasonably

compensate Amanda Yarborough for her damages, if any, resulting from the

occurrence in question?

Consider the elements of damages listed below and none other. Consider each

element separately. Do not include damages for one element in any other element.

Do not include any amount for any condition existing before the occurrence in

question, except to the extent, if any, that such other condition was aggravated by any

injuries that resulted from the occurrence in question. Do not include any amount for

any condition not resulting from the occurrence in question. Do not include interest

on any amount of damages you find. Do not reduce the amounts, if any, in your

answers because of the negligence, if any, of Amanda Yarborough.

Answer in dollars and cents, for damages, if any, that

were sustained will be sustained

in the past in the future

a. Physical pain and mental anguish $12,500.00 $75,000.00

b. Physical impairment $ 0.0 $50,000.00

c. Medical expenses $18,067.28

Analysis Regarding Liability

As to liability, the evidence shows that appellant was actually aware of the

dangerous condition of the steps and failed to act to reduce or eliminate it. He

testified that his father told him that the stairs were in need of repair and he admitted

that the repairs made by his father were done in an unworkmanlike manner. He also

stated that a better course of action would have been to replace the steps in a timely

fashion. In essence, appellant and his father admitted that the “emergency” repairs

failed to make the dangerous condition of the steps safe. Therefore, the first three

elements of appellee’s premise liability cause of action were satisfied by appellant’s

own testimony. Gonzalez , 968 S.W.2d at 936 ; Payne , 838 S.W.2d at 237 .

The last element of appellee’s cause of action is proximate cause. The question

of proximate cause generally involves a practical inquiry based on common

experience applied to human conduct. Doe v. Boys Clubs of Greater Dallas, Inc ., 907

S.W.2d 472, 478 (Tex. 1995). The two elements of proximate cause are cause-in-fact

and foreseeability. Nixon v. Mr. Prop. Mgmt. Co., Inc ., 690 S.W.2d 546, 549 (Tex.

1985). Cause-in-fact means the negligent act or omission was a substantial factor in

bringing about the injury, and without which no harm would have occurred. Id.

Foreseeability requires that a person of ordinary intelligence should have anticipated

the danger created by a negligent act or omission. Id. at 549-50. The danger of

injury is foreseeable if its general character might reasonably have been anticipated.

Id. at 551 . It asks whether the injury “might reasonably have been contemplated” as

a result of the defendant’s conduct. McClure v. Allied Stores of Tex., Inc ., 608

S.W.2d 901, 903 (Tex. 1980); see also Lenger v. Physician’s Gen. Hosp., Inc. , 455

S.W.2d 703, 706 (Tex. 1970) ( holding that absolute certainty is not required to prove

causation; plaintiff only needs to establish reasonable probability that his injuries

were caused by defendant’s conduct).

In this case, to establish cause-in-fact, appellee relied on her own testimony and

the expert testimony of her neurologist, Dr. Nigam. As discussed above, appellee

testified that after she fell on the steps, her back began to experience severe pain. Dr.

Nigam testified that based upon a reasonable degree of medical probability,

appellee’s fall at her backdoor steps caused her herniated disk. As for foreseeability,

it is undisputed that appellant was aware the steps were in need of repair and were

dangerous. We conclude that this uncontroverted evidence was both legally and

factually sufficient to support a finding of proximate cause.

‒ Analysis Regarding Damages

Finally, appellant challenges the amount of damages the jury awarded appellee.

With respect to appellee’s damages, appellant maintains that the evidence was legally

and factually insufficient to support the jury’s award of $75,000 for future pain,

$50,000 for future impairment, $12,500 for past pain and mental anguish, and

$18,067 for past medical bills.

Past Medical Bills

First, in order to recover medical expenses, a claimant must prove the charges

incurred were “reasonable and necessary.” Nat’l Union Fire Ins. Co. v. Wyar , 821

S.W.2d 291, 297 (Tex. App.—Houston [1st Dist.] 1991, no writ). An affidavit may

serve as “sufficient evidence to support a finding of fact by judge or jury that the

amount charged was reasonable and necessary.” Id. at 297 (citing Tex. Civ. Prac.

& Rem. Code Ann. § 18.001(b) (Vernon Supp. 1991)). Moreover, hospital bills

introduced into evidence are sufficient to support an award of past medical expenses.

Id. (citing Six Flags Over Texas, Inc. v. Parker , 759 S.W.2d 758, 761 (Tex.

App.—Fort Worth 1988, no writ)). In this case, as we specifically discussed above, appellee introduced into

evidence her medical bills and also uncontroverted affidavits that stated the medical

expenses were reasonable and necessary. Thus, we hold that the evidence was legally

and factually sufficient to support the jury’s finding of past medical expenses of

$18,067. Id. (holding evidence was legally and factually sufficient to justify jury

award of past medical bills when claimant introduced into evidence medical bills and

uncontroverted affidavits that state expenses were reasonable and necessary).

Physical Pain, Impairment, and Mental Anguish

As a general rule, an award of future damages in a personal injury case is

always speculative. Pipgras v. Hart , 832 S.W.2d 360, 365 (Tex. App.—Fort Worth

1992, writ denied). Matters of pain and suffering are necessarily speculative, and it

is within the province of the jury to set the amount of such damages. Hicks v.

Ricardo , 834 S.W.2d 587, 591 (Tex. App.—Houston [1st Dist.] 1992, no writ). We

give a jury’s determination of the amount of damages a great deal of discretion. Id.

(citing Green v. Meadows , 527 S.W.2d 496, 499 (Tex. Civ. App.—Houston [1st

Dist.] 1975, writ ref’d n.r.e.)).

In this case, throughout the trial, both appellee and Dr. Nigam testified in detail

about the amount of pain appellee was experiencing on a daily basis. Dr. Nigam

testified that appellee would continue to suffer pain in her back for the rest of her life.

Appellee introduced approximately 100 pages of medical records that detail her

symptoms of pain as well as the painful medical procedures she endured to repair her

back. Appellee testified that she has a hard time taking care of her children on a daily

basis. According to her testimony, this causes her a great deal of stress. She also has

a hard time performing tasks such as cleaning the kitchen floor and pulling weeds in

her front yard. Moreover, appellee is forced to walk with a cane and needs a

handicap permit for her vehicle in order to travel. After considering and weighing all

the evidence, we cannot say that the evidence supporting the jury’s award of past and

future pain, physical impairment, and mental anguish damages is so weak as to be

clearly wrong and unjust.

We overrule appellant’s first, second, and third points of error.

Remittitur

In his fourth point of error, appellant contends that this Court should order a

remittitur of the damage award. “In determining whether damages are excessive, trial

courts and courts of appeals should employ the same test as for any factual

insufficiency question.” Pope v. Moore , 711 S.W.2d 622, 624 (Tex. 1986); accord

Larson v. Cactus Utility Co. , 730 S.W.2d 640, 641 (Tex. 1987) (holding factual

sufficiency is sole remittitur standard for actual damages); Darby v. Jefferson Life Ins.

Co. , 998 S.W.2d 622, 629 (Tex. App.—Houston [1st Dist.] 1995, no writ) (same);

K-Mart Corp. v. Pearson on Behalf of Ramos , 818 S.W.2d 410, 415 (Tex.

App.—Houston [1st Dist.] 1991, no writ) (same).

In light of our disposition of appellant’s first three points of error, where we

held that the evidence was legally and factually sufficient to support the jury’s award

of damages, we find nothing new in this point of error that would merit this Court to

order a remittitur.

Appellant’s fourth point of error is overruled.

Appellee’s Cross-Appeal

Appellee brought one cross-point on appeal for our consideration. However,

appellee requested that we only consider the cross-point if we reverse judgment

against appellant. In light of our disposition of appellant’s points of error, we need

not address appellee’s sole cross-point in this appeal.

Motion For Sanctions

Appellee requests us to assess sanctions against appellant and/or his counsel

on the basis that appellant’s appeal is frivolous. See Tex. R. App. P. 45. Under Rule

45, we may award joint damages if we objectively determine, after considering “the

record, briefs, or other papers filed in the court of appeals,” an appeal is frivolous.

Smith v. Brown , 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied). We consider the record from the viewpoint of the appellate advocate to

decide whether he had reasonable grounds to believe the case could be reversed. Id.

Though we disagree with the merits of appellant’s appeal, we find no basis for

concluding that appellant had no reasonable grounds to believe the case could be

reversed.

We overrule appellee’s motion for sanctions.

CONCLUSION

We affirm the judgment.

Margaret Garner Mirabal

Justice

Panel consists of Justices Mirabal, Nuchia, and Price.

Do not publish. Tex. R. App. P. 47.4.