Derek Scott Smith v. Moody Gardens, Inc

Opinion issued February 17, 2011

In The

Court

of Appeals

For The

First

District of Texas

————————————

NO.

01-09-00359-CV

———————————

DEREK SCOTT SMITH , Appellant

V.

MOODY

GARDENS, INC. ,

Appellee

On Appeal from the 10th

District Court

Galveston County, Texas

Trial Court Case No. 06-CV-1158

O P I N I O N

This appeal concerns a skater who fell

on an ice skating rink, purportedly due to a deep groove in the ice that had

resulted from improper maintenance. The

skater, appellant Derek Scott Smith, appeals a take-nothing judgment following

a jury trial on his claim for breach of a statutory duty by the ice skating

rink operator, appellee Moody Gardens, Inc., and a summary judgment dismissing

his common law claims. In two issues,

Smith contends that the jury’s finding of no breach of the statutory duty or no

proximate causation was against the great weight and preponderance of the

evidence and that the trial court erred by granting Moody Gardens’s motion for

summary judgment as to his common law claims for negligence and premises

liability. We conclude that the jury’s

finding is supported by factually sufficient evidence and, therefore, affirm

the judgment as to Smith’s claim for breach of a statutory duty. We also conclude that any error in the trial

court’s rendition of summary judgment as to Smith’s common law claims for

negligence and premises liability are harmless based on the jury’s findings

against Smith concerning his claim for a breach of a statutory duty.

Background

Moody

Gardens operated an ice staking rink for a limited time during the winter

season. Each day, Moody Gardens offered

two skating sessions open to the public:

an afternoon session open at 12:00 p.m. and an evening session open from

6:00 to 10:00 p.m. Moody Garden’s usual

operating practice was to resurface the ice once before each session. In contrast, the evidence showed that the

standard industry practice is to resurface the ice once every hour.

One

day in December 2005, Smith took his family to skate at the rink. Sometime between 5:00 and 6:00 p.m., the ice

was resurfaced. At around 8:45 p.m., the

Smith family began to skate. After

taking a break off the ice, Smith re-entered the rink and skated toward his

wife to inform her he was ready to leave.

As he approached his wife’s location, he slowed down, had a conversation

with her, and turned to leave the rink.

Smith fell. After falling, Smith

observed that his right blade was in a groove in the ice. Although no one else saw the groove, the

evidence showed the ice skating surface was rough and bumpy at the time of

Smith’s fall. The rink was fairly busy

that night, and a noticeable amount of ice shaving lay on the ice skating

surface. As a result of his fall, Smith

suffered personal injuries.

Smith

filed a lawsuit against Moody Gardens for common law negligence and premises

liability based on the assertion that the ice skating surface, particularly the

groove, constituted a defective premises condition, and for Moody Gardens’s

breach of its statutory duty as an ice skating rink operator to inspect and

maintain in good condition the ice skating surface. The statutory claim was made under section

760.002 of the Texas Health and Safety Code, which we will refer to as the Ice

Skating Rink Statute. Although the Ice

Skating Rink Statute lists multiple duties for ice skating rink operators,

Smith’s pleadings asserted only one violation of the statute, which was Moody

Gardens’s failure to inspect and maintain in good condition the ice skating

surface.

Moody

Gardens filed motions for summary judgment for the statutory and common law

claims. The trial court, without stating

its reasoning, granted Moody Gardens’s

no-evidence motion for summary judgment as to Smith’s common law claims

for negligence and premises liability.

The trial court, however, denied summary judgment on the statutory claim

that was later resolved by a jury verdict in favor of Moody Gardens. The jury charge instructed the jury that

negligence referred to any failure of Moody Gardens to inspect and maintain in

good condition the ice skating surface.

That definition for negligence is based on one of the statutory duties

in the Ice Skating Rink Statute. The

jury determined that this negligence, if any, did not proximately cause Smith’s

fall. Accordingly, the trial court

entered a take-nothing judgment.

Factual Sufficiency as to Breach of

the Statutory Duty

In

his second issue, Smith asserts a factual sufficiency challenge to the jury’s

negative finding on his statutory claim.

He contends that the great weight and preponderance of the evidence is

contrary to the jury’s finding that Smith’s fall was not proximately caused by

any failure of Moody Gardens to inspect and maintain in good condition the ice

skating surface.

A. Standard of Review

To

prevail on a challenge that the evidence is factually insufficient to support

an adverse finding on an issue on which the complaining party has the burden of

proof, that party must show that the adverse finding is against the great

weight and preponderance of the evidence.

Dow Chem. Co. v. Francis , 46

S.W.3d 237, 242 (Tex. 2001); Marin v.

IESI TX Corp. , 317 S.W.3d 314, 334 (Tex. App.—Houston [1st Dist.] 2010,

pet. filed). In conducting a

factual sufficiency review, an appellate court must consider and weigh all the

evidence and should set aside the verdict only if the evidence is so weak or

the finding is so against the great weight and preponderance of the evidence

that it is clearly wrong and unjust. Dow Chem. , 46 S.W.3d at 242 . An appellate court addresses the sufficiency

of the evidence in light of the jury charge given and the jury findings in

response to that charge. Barker v. Eckman , 213 S.W.3d 306, 313

(Tex. 2006); Marin , 317 S.W.3d at

334 . The jury is the sole judge of the

credibility of witnesses and the weight to be given to their testimony, and an

appellate court must not merely substitute its own judgment for that of the

jury. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex.

2003); Marin , 317 S.W.3d at 334 .

B. Ice Skating Rink Statute

An

ice skating rink operator may be held liable in negligence for damages for

personal injury only if the personal injury is caused by a breach of a duty

prescribed in section 760.002 of the Texas Health and Safety Code. Tex.

Health & Safety Code Ann . § 760.006(a) (“Except for actions

against an operator for gross negligence, malice, or intentional conduct, an

operator is not liable in negligence for damages for personal injury, property

damage, or death unless the personal injury, property damage, or death is caused

by a breach of a duty prescribed in Section 760.002.”). Section 760.002 lists the following duties of

an ice skating rink operator:

(1)

to provide during public skating sessions at least one rink monitor

approximately per 200 ice skaters,

(2)

to require rink monitors to wear indentifying attire, direct and

supervise skaters and spectators, and watch for and timely remove foreign

objects on the ice skating surface,

(3)

to inspect and maintain in good condition the ice skating surface and

surrounding floors, railings, boards, and walls,

(4)

to inspect and maintain in good mechanical condition ice skating

equipment that the operator leases or rents to ice skaters,

(5)

to comply with the risk management guidelines for ice skating rinks

endorsed by the board of directors of the Ice Skating Institute of America on

August 27, 1996,

(6)

to post in conspicuous places in the ice skating center the duties of ice

skaters and spectators . . . ,

(7)

to maintain the stability and legibility of all required signs, symbols,

and posted notices, and

(8) to

maintain liability insurance of at least $500,000 combined single limits for

personal injury, death, or property damage.

Id. § 760.002. Although eight

duties are listed in the Ice Skating Rink Statute, only one is pleaded by Smith,

the duty to inspect and maintain in good condition the ice skating surface, and

this is the sole statutory duty mentioned in the jury charge. See i d. § 760.002(3).

C. Proximate Cause Requirement for Statutory

Claim

The charge

asks the jury whether “the negligence, if any, of [Moody Gardens] proximately

cause[d]” Smith’s fall. The jury’s

response is “No.” The charge poses a

compound question asking the jury to indicate “yes” only if (1) Moody Gardens

failed to inspect and maintain in good condition the ice skating surface and

(2) that failure proximately caused Smith’s fall. By responding “No,” the jury indicates that

it found either (1) that Moody Gardens did not breach its statutory duty or (2)

that Moody Gardens breached its statutory duty but that the breach did not

proximately cause Smith’s fall.

Accordingly, the evidence is factually insufficient to support the

jury’s response only if the great weight and preponderance of the evidence

indicates both that (1) Moody Gardens did breach its statutory duty and (2) the

breach is the proximate cause of Smith’s fall.

See Dow Chem. , 46 S.W.3d at 242; Marin , 317 S.W.3d at 334.

The court’s

charge defines “proximate cause” as

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 proximate cause, the act or omission complained of must

be such that a person 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.

Cf. W. Invs., Inc. v. Urena , 162 S.W.3d 547 , 550–51 (Tex.

2005) (stating elements of proximate causation in negligence action). Proof of proximate causation, therefore,

requires both that (1) the breach caused in fact Smith’s fall and (2) a person

of ordinary intelligence would have anticipated the danger caused by the

breach. Cf. W. Invs. , 162 S.W.3d at

551 ; Sw. Key Program, Inc. v. Gil-Perez , 81 S.W.3d

269, 274 (Tex. 2002). The dispositive

inquiry here focuses on the evidence concerning whether the breach of the duty

to inspect and maintain in good condition the ice skating surface caused in

fact Smith’s fall. Unless the great

weight and preponderance of the evidence shows that Smith’s fall was caused in

fact by Moody Gardens’s breach of that statutory duty, we must uphold the

jury’s verdict. See

W. Invs. , 162 S.W.3d at 550–51; Sw. Key Program , 81 S.W.3d at 274 .

D. Analysis

Smith’s

only theory of the case, argued at trial and asserted on appeal, as to

causation in fact is that Moody Garden’s failure to inspect and maintain the

ice caused the formation of a deep groove and that it was this groove that

caused his fall. The only evidence of

causation comes from Smith’s expert witness, who testified that a deep groove

in the ice could cause a serious fall.

Nevertheless, even accepting the expert’s testimony, the jury could have

reasonably found against Smith.

Other

than Smith, no one saw a deep groove in the ice before or after his fall. The only evidence that a deep groove existed

is Smith’s own testimony that after his fall, he saw his right skate blade

stuck in a “deep groove” in the ice. [1] However, this testimony was impeached by a

prior inconsistent statement made during Smith’s deposition in which he agreed

that the groove he saw was only “a little deeper than most.” Moreover, Smith testified that immediately

prior to his fall, he did not feel his leg drop or the blade of his skate slip

into a groove. Based on inconsistency in

Smith’s statements and his testimony that he did not feel any indication of the

groove, the jury could have reasonably found either that no groove existed or that

the groove existed but was not so deep as to cause a serious fall. Furthermore, because there is no evidence

that a groove existed before Smith’s fall, the jury could have reasonably

believed that the groove was a result of Smith’s fall, not its cause. We conclude that the great weight and

preponderance of the evidence does not render a jury finding of no causation in

fact clearly wrong and unjust. See Dow

Chem. , 46 S.W.3d at 242; Marin , 317 S.W.3d at 334 . We hold that the evidence

is factually sufficient to support the jury’s finding that Smith’s fall was not

proximately caused by any failure of Moody Gardens “to inspect and maintain in

good condition the ice skating surface.”

We

overrule Smith’s second issue.

No-Evidence Summary Judgment

In

his first issue, Smith contends that the trial court erred by granting Moody

Garden’s no-evidence motion for summary judgment as to his common law claims

for negligence and premises liability.

Assuming the trial court erred by rendering summary judgment on the

common law claims for negligence and premises liability, we conclude the error

is harmless.

A judgment

may be reversed on appeal on the ground that the trial court made an error of

law only if the error complained of (1) probably caused the rendition of an

improper judgment or (2) probably prevented the appellant from properly

presenting the case to the appellate courts.

Tex. R. App. P . 61.1. Subsequent events in the trial court can

render the erroneous grant of summary judgment harmless. Progressive

County Mut. Ins. Co. v. Boyd , 177 S.W.3d 919, 921 (Tex. 2005); see also Martin v. Martin, Martin & Richards,

Inc. , 989 S.W.2d 357, 359 (Tex. 1998).

Thus, in conducting a harm analysis, an appellate court should consider

subsequent events in the trial court that are properly before it. Progressive

County Mut. Ins. , 177 S.W.3d at 921 .

As

noted above, the jury determined that

any breach of the duty to inspect and maintain in good condition the ice

skating surface did not proximately cause Smith’s fall. Smith seeks to re-litigate that same theory

re-characterized as claims for premises liability and ordinary negligence. [2] Smith’s only theory for his common law claims

is that a groove in the ice caused his fall because Moody Gardens failed to

adequately maintain the ice skating surface to prevent the accumulation of ice

shaving and grooves. This same theory

underlies the statutory claim found against Smith by the jury. Because the jury found against Smith on the

statutory claim, that finding negates recovery for the common law claims. See

Progressive County Mut. Ins. ,

177 S.W.3d at 921 ; W. Invs. ,

162 S.W.3d at 550 .

Smith asserts that our decision in Alpert v. Riley supports his position

that the error is not harmless. See Alpert v. Riley , 274 S.W.3d 277 , 286

n.5 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). There, we determined that the jury charge did

not instruct the jury to apply any law or make any fact finding that the trial

court decided in the summary judgments. See id .

In contrast, here the jury’s finding against Smith on his statutory

claim includes the same facts and theory for Smith’s claims described in the

summary judgment.

Smith

contends that we should remand the case so that he can pursue other statutory

duties under the Ice Skating Rink Statute . But no other duties, other than the one

included in the jury charge, were pleaded by Smith. The sole pleaded statutory duty was tried to

the jury following the denial of the summary judgment. The trial court did not grant summary

judgment against Smith on his claims under the duties described in Ice Skating

Rink Statute, and he received a jury trial on the statutory duties that

he pleaded. We may not, therefore,

reverse the summary judgment addressing the common law claims so that Smith can

pursue other duties described in the Ice Skating Rink Statute

because those statutory duties were not the basis of the summary judgment

rendered against him. See Tex. R. Civ. P. 166a(c).

Smith also

challenges Moody Gardens’ assertion that the Ice Skating Rink Statute entirely

precludes any common law claim. Smith

contends Moody Gardens waived that argument by failing to present it at

trial. Having determined that any error

in the summary judgment ruling was harmless for reasons other than the

exclusivity of the statute, we do not address that issue.

We overrule Smith’s first issue.

Conclusion

We affirm the judgment of the trial

court.

Elsa

Alcala

Justice

Panel consists of Chief Justice

Radack and Justices Alcala and Bland.

[1] It

should be noted that Smith’s expert did insist on the existence of a deep

groove; however, he was neither a fact witness nor present on the day in

question.

[2] Premises

liability and n egligent-activity each

include elements that the defendant owed the plaintiff a duty of care, the

defendant breached the applicable standard of care, and the breach proximately

caused damages. W.

Invs., Inc. v. Urena , 162 S.W.3d 547, 550 (Tex. 2005); Clayton W. Williams, Jr., Inc. v. Olivo , 952 S.W.2d 523, 529 (Tex.

1997); West v. SMG , 318 S.W.3d 430,

438 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The applicable standard of care for a

premises owner with respect to an invitee is that which a person of ordinary

prudence would have exercised under the same or similar circumstances. See LMB,

Ltd. v. Moreno , 201 S.W.3d

686, 688 (Tex. 2006). However, recovery

on a negligent-activity theory requires that the person have been injured by or

as a contemporaneous result of the activity itself rather than by a condition

created by the activity. Keetch v. Kroger Co. , 845 S.W.2d 262,

264 (Tex. 1992).