Opinion
No. 02-19-00194-CV
07-09-2020
GEORGE BERNARD, Appellant v. RANGERS BASEBALL, LLC AND KONE, INC., Appellees
On Appeal from the 153rd District Court Tarrant County, Texas
Trial Court No. 153-277449-15 Before Kerr, Womack, and Wallach, JJ.
Concurring Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
Appellant George Bernard brought this suit alleging injuries from the sudden stopping of an escalator at Globe Life Park in Arlington, Texas. Bernard sued Appellees Rangers Baseball, LLC, the owner of the ballpark, and KONE, Inc., which had installed the escalator and performed maintenance on it. The trial court granted Appellees' traditional and no-evidence summary judgment motions. Because Bernard failed to raise a fact issue with respect to causation, we affirm.
Background
KONE constructed the escalators at Globe Life Park. Rangers Baseball and KONE entered into a maintenance agreement for the escalators under which KONE agreed to "systematically examine, maintain, adjust[,] and lubricate the equipment" and to "repair or replace" escalator parts when necessitated by normal wear and tear. Some of the escalators at the ballpark experienced occasional sudden stops.
On Friday, May 3, 2013, Bernard attended a baseball game at the ballpark with his children and grandchildren. While Bernard and his family were riding an escalator to their seats, it stopped suddenly with a jarring motion. The motion caused Bernard's son, daughter-in-law, and granddaughter to fall and Bernard's knees to buckle. Bernard's knees began to hurt almost immediately, but he declined medical treatment at that time. After about two innings, his knees were swollen, and he left the ballpark with his son's assistance and drove himself home. The following Monday, he saw his primary care physician, who referred him to a knee specialist. An MRI scan revealed that Bernard had damage in both knees: end-stage arthritis in his left knee and what Bernard described in his deposition as "some kind of tear" in his right. Bernard continued to have stiffness and knee pain, which he attempted to resolve with physical therapy. He stopped the appointments because they required him to miss too much work and because "it had gotten to a point to where [he thought] it was as good as it was going to go." In November 2013, because he "continued to have problems with [his] knees in terms of the ability to do things," he had a total knee replacement on his left knee. At the same time, he also had surgery on his right knee; Bernard did not specify what kind of surgery the doctor performed but stated in his deposition that he "th[ought] he cleaned it up with a scope."
Bernard sued Rangers Baseball and KONE for injuries to his knees. He asserted a premises liability claim against Rangers Baseball, a manufacturing defect claim against KONE, and he pled negligence and the doctrine of res ipsa loquitur against both defendants. He sought damages for past and future medical expenses, pain and suffering, physical impairment and disfigurement, and mental anguish.
Bernard's petition also included claims for negligent hiring and negligence per se, but he withdrew those claims.
KONE filed a combined traditional and no-evidence summary judgment motion. The no-evidence part of the motion argued that Bernard had no evidence that KONE retained control over the escalator and no evidence on any of the other elements of his claims. Rangers Baseball filed a traditional motion for summary judgment and a separate no-evidence motion that, among other grounds, asserted that Bernard had no evidence on the elements of each of his claims. In its no-evidence motion, with respect to causation, it specifically argued that "[i]n the case of physical injury in particular, when his claims involve medical conditions outside the common knowledge and experience of jurors, a plaintiff must provide expert testimony that his injuries were caused by the defendant's conduct."
Bernard filed responses to both Rangers Baseball's and KONE's motions. He attached as evidence a copy of his own deposition in which he testified that he felt knee pain immediately after the incident, that his knees began to swell that same night, and that as of the time of the deposition, he can no longer play soccer or jog like he could before the incident.
In separate orders, the trial court granted Rangers Baseball's and KONE's summary judgment motions without specifying the grounds. Bernard filed a motion for new trial, which the trial court denied.
Discussion
In his sole issue, Bernard argues that the trial court reversibly erred by granting summary judgment because Bernard raised genuine issues of material fact sufficient to defeat the traditional motions and more than a scintilla of probative evidence to defeat the no-evidence motions. We disagree that Bernard's evidence was sufficient to prevent no-evidence summary judgment. As such, we do not address whether granting the traditional summary judgment was proper. See Tex. R. App. P. 47.1.
Causation is an element of each of Bernard's claims. See Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 353 (Tex. 2015) (manufacturing defect); DeLamar v. Fort Worth Mountain Biker's Ass'n, No. 02-17-00404-CV, 2019 WL 311517, at *3 n.2 (Tex. App.—Fort Worth Jan. 24, 2019, pet. denied) (premises liability and negligence); see also Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982) (negligence and the res ipsa loquitur doctrine). "Establishing causation in a personal injury case requires a plaintiff to 'prove that the conduct of the defendant caused an event and that this event caused the plaintiff to suffer compensable injuries,'" JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)), and thus as part of his case, Bernard had to prove that the incident caused his alleged injuries.
Generally, the cause of a medical condition cannot be established without expert testimony. Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007). However, "causation findings linking events and physical conditions could, under certain circumstances, be sufficiently supported by non-expert evidence." Id. at 666. In Guevara, the Texas Supreme Court held that "non-expert evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and alleged conditions are such that the general experience and common sense of laypersons are sufficient to evaluate [1] the conditions and [2] whether they were probably caused by the occurrence." Id. at 668. More specifically, the Court held that in an automobile-accident case, non-expert evidence could support a finding that the accident caused basic physical conditions if the evidence "establish[es] a sequence of events [that] provided a strong, logically traceable connection between the [accident] and the physical condition[s]" and the physical conditions "(1) are within the common knowledge and experience of laypersons, (2) did not exist before the accident, (3) appeared after and close in time to the accident, and (4) are[,] within the common knowledge and experience of laypersons, caused by automobile accidents." Id. at 667. However, while "[e]vidence of an event followed closely by manifestation of or treatment for conditions [that] did not appear before the event raises suspicion" that the event caused those conditions, "suspicion has not been and is not legally sufficient to support a finding of legal causation." Id. at 668; cf. Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010) ("When lay testimony is credited as evidence of causation, it usually highlights a connection between two events that is apparent to a casual observer.").
Bernard argues that the layperson testimony he provided was sufficient to raise a fact issue about causation. He points out that he testified in his deposition that he was able to walk on his own before the incident but needed assistance to exit the escalator after the incident, that his knees swelled as he sat in his seat at the game, and that he eventually had to have surgery in both knees.
A layperson has common knowledge of medical conditions like broken bones and lacerations and that those conditions can be caused by an accident like a fall, but Bernard did not allege those kinds of conditions. See Guevara, 247 S.W.3d at 667. He alleged instead that the incident caused conditions that required physical therapy and eventually surgery to treat. It is not within the common knowledge and experience of laypersons to know what kinds of knee injuries are caused by sudden stops or jerking motions and what kind of knee conditions require physical therapy and either total knee replacement or "cleaning" with a scope to treat. Further, Bernard failed to produce evidence that the conditions did not exist prior to the incident. Bernard produced no evidence of what kind of tear he had in his right knee or if it was the kind of tear that can occur from a sudden stop or one that develops over time. No doctor told him that the conditions in his knees had been caused by the incident. For Bernard's left knee, within a month of the incident, the MRI revealed that he had end-stage arthritis, which he acknowledged "didn't happen overnight"; that is, Bernard's evidence indicated that Bernard already had an existing problem with at least his left knee prior to the incident. Additionally, rather than revealing that even if he had existing arthritis or other problems with his knees, his knees were entirely asymptomatic and pain-free before the incident, see Sw. Bell Tel., L.P. v. Valadez, No. 2-07-129-CV, 2008 WL 425746, at *3 (Tex. App.—Fort Worth Feb. 14, 2008, no pet.) (mem. op.), his deposition testimony acknowledged that he did occasionally have knee discomfort before the incident. While he testified in his deposition that before the escalator event he did not have pain and that his "ability to do things" had changed since the incident, he also acknowledged previously receiving treatment on his knees. Several years before the incident, he received injections in at least one of his knees—he could not recall which—to alleviate the stiffness he sometimes felt after playing soccer. He also testified in his deposition that before the incident, "from time to time [his] knees, if [he] overexert[ed] [him]self, yeah, [they] could hurt."
At his deposition, lawyers for KONE and Rangers Baseball asked him if he recalled any of his doctors telling him that the tear was a degenerative lateral meniscal tear or that he had degenerative joint disease in his right knee (he answered that he did not recall) and "if the medical records indicated that six days after this incident you had degeneration in your right knee, would you have any reason to disagree with that?" (he would not, "if that's just medical notes"). However, medical records were not included as summary judgment evidence by any party.
In part of his deposition, he attributed his loss of function to the knee replacement rather than any permanent injury to his knees, stating that the reason that he can no longer run or play soccer, tennis, or golf is because his knee replacement "doesn't bend." He stated that his right knee, on the other hand, "is much, much better."
The exception to the expert-testimony requirement recognized in Guevara does not apply here. See Guevara, 247 S.W.3d at 667; see also Diez v. Alaska Structures, Inc., 455 S.W.3d 737, 743-44 (Tex. App.—El Paso 2015, no pet.). Accordingly, Bernard needed expert testimony to raise a fact issue about causation, and he provided none.
Each of Bernard's claims requires expert testimony that the incident caused his injuries, but Bernard produced none in response to the no-evidence summary judgment motions. Accordingly, under the well-established standard of review applicable here, see Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008), the trial court did not err by granting no-evidence summary judgment. We overrule Bernard's issue.
Conclusion
Having overruled Bernard's sole issue, we affirm the trial court's summary judgment.
/s/ Mike Wallach
Mike Wallach
Justice Delivered: July 9, 2020