Opinion
No. 06-19-00095-CV
04-01-2021
WAL-MART STORES TEXAS, LLC, Appellant v. JENNIFER R. AUTREY, Appellee
On Appeal from the 349th District Court Anderson County, Texas
Trial Court No. DCCV-17-192-349 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Jennifer R. Autrey slipped and fell in a Walmart store in Palestine, Texas. She asserted a premises liability claim against Walmart, arguing that its negligence caused the fall and her resulting injuries. An Anderson County jury determined that Walmart's negligence proximately caused Autrey's injuries and awarded her a total of $732,630.31 in damages for past and future pain, mental anguish, and medical expenses. On appeal, Walmart argues that (1) the evidence was legally and factually insufficient to support the jury's finding that Walmart was negligent, (2) the evidence of proximate cause was legally and factually insufficient to support the jury's award of past and future medical expenses, and (3) the trial court erred in refusing to instruct the jury regarding sole proximate cause.
Autrey fell in a Walmart Supercenter owned and operated by Wal-Mart Stores Texas, LLC.
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
We affirm the trial court's judgment because (1) the jury's finding that Walmart was negligent was supported by legally and factually sufficient evidence, (2) the jury's award of past and future medical expenses was supported by legally and factually sufficient evidence of proximate cause, and (3) the trial court acted within its discretion by refusing to give a sole proximate cause instruction.
I. Factual and Procedural Background
On September 3, 2016, Breanna Love, a Walmart cashier, was working at the self-checkout area near the store's front doors and vision center. A customer told her about a nearby spill on the floor. Love testified that, on several occasions, she was trained to handle spills. Love explained that, based on her training, if there was a spill on the floor, she was to assess the size and hazard level of the spill. Depending on the size and nature of the spill, she was to then take one of the following actions: (1) wipe up the spill; (2) place a "wet floor" cone at the spill prior to cleaning it up; or (3) stand by the spill, call for maintenance, and "guard the spill" for the purpose of warning customers.
Love testified that, in 2017, the store started a new program called Towel in the Pocket, where each employee was given "a little orange" towel, more absorbent than paper towels, to keep in their pocket in case of spills. In addition, she testified that Walmart was "actually keeping more wet floor signs out on the front end [of the store]" in the self-checkout area in order to prevent another fall from happening.
Tammy Griffin, Walmart's corporate representative at trial and an assistant manager at the Palestine Walmart, agreed with Love's testimony and said that, according to Walmart's policy and employee training, an employee should never "leave a spill no matter what" until it is cleaned up. According to Griffin, employees are not supposed to leave spills even to return to their register to call maintenance. Moreover, while employees are instructed to place a wet floor warning sign near the spill, they may only do so if the signs are accessible and retrieving them does not to require the employee to leave the spill area. Griffin also admitted that there was not a spill station near the front-door area where the fall occurred.
Love first noticed the spill a few yards from her workstation. Upon seeing the spill, Love retrieved a roll of paper towels from her station near the self-checkout stations and walked back to the spill so she could clean it up. However, a second customer pointed out that there were separate spills stretching from the customer service area to the front doors. Because the spill extended beyond the self-checkout area, Love believed the spill was too large to clean on her own, so she returned to her workstation and called for maintenance; she then stood at the spill site nearest her, where she "guard[ed] the spill" and warned customers. Love testified that she did not retrieve and place warning signs at the spill because there was "nobody else to watch the spill" as well as the self-checkout area while she retrieved a warning cone from the spill station on the other side of the store. Because she was not allowed to leave the general self-checkout area, she moved closer to the front doors, so she could warn customers both entering and leaving the store while still being able to keep an eye on the self-checkout area. She also asked a nearby coworker to call maintenance again.
At that moment, Autrey and her husband entered the store. Autrey testified that Love was walking toward her and even made eye contact with her. There is conflicting evidence regarding whether Love warned Autrey about the spill. Love testified that, as she was telling Autrey to "watch out" for the spill, Autrey slipped and fell. However, in a statement taken after the incident, Love stated that Autrey was "already falling" before she could warn her. A video recording of the incident from the store's security system was admitted into evidence and played for the jury; it showed that less than a minute of time elapsed between Love initially learning of the spill and Autrey's fall.
Autrey testified that she felt pain immediately after she fell. Love immediately ran to Autrey's side; said, "I am so sorry"; asked if Autrey was ok; and asked if she needed an ice pack or an electric cart. Love overheard Autrey's husband tell his wife that she should go to the hospital, and when she said she did not want to go, he insisted. Autrey did not want Love to call an ambulance for her. At that time, Griffin arrived, and Love returned to her station at the self- checkouts. Griffin testified that Autrey told her that she heard Love's warning, but that she did not have time to react.
Griffin testified that Autrey's husband helped her into a wheelchair and pushed her back to their car. Autrey's husband then drove her to the Palestine Regional Hospital. Griffin testified that she did not fault Autrey "in any way for having fallen that day." After viewing the video recording of the incident, Griffin testified that, even though Love left the spill to return to her register "for a second," in her opinion, Love "did everything perfectly and according to Walmart's procedures." Autrey "just entered the store, and there was a spill on the floor." Griffin called Autrey within the next twenty-four hours, and although she could not remember what was said in the conversation, she did remember that Autrey was polite and cordial.
The day after her fall, Autrey woke feeling pain in her neck, something she said she had never experienced in the previous twenty-five years. Because the first three orthopedic doctors she called refused her as a patient when she disclosed that her fall was at Walmart, she visited the Texas Spine and Joint Urgent Care facility in Tyler, Texas, when her neck pain worsened. She eventually saw Dr. Duane Griffith, an interventional pain-management specialist. Dr. Griffith administered epidural steroid injections and prescribed physical therapy for her, but it failed to help her neck pain. Dr. Griffith referred her to a Tyler neurosurgeon, Dr. Charles Gordon, for an evaluation, and, after examining her MRI and x-rays, performing a physical examination, taking her patient history, and considering the failure of more conservative treatments, Dr. Gordon recommended spinal fusion surgery and a discectomy.
After the surgery, Autrey's neck pain improved, but did not end. She also experienced pain on her left side, which was attributed to nerve damage. Hoping to solve Autrey's pain, Dr. Griffith implanted a spinal cord stimulator. Autrey said the stimulator provided her about seventy-percent relief. Dr. Alex Willingham, a physician and life care planner, testified that, over the course of Autrey's life, the cost of maintaining and replacing the spinal stimulator would be $452,630.31.
The jury determined that Walmart's negligence proximately caused Autrey's injuries and awarded her a total of $732,630.31 in damages, including $100,000.00 for past medical expenses and $452,630.31 in future medical expenses. Due to pretrial stipulations regarding the amount of Autrey's past medical expenses and the award of prejudgment interest and court costs, the trial court entered judgment on the verdict awarding Autrey a total of $751,720.59. Walmart appeals from the jury's verdict.
II. The Evidence of Negligence Was Legally and Factually Sufficient
In its first point of error, Walmart contends that the evidence was legally and factually insufficient to support the jury's finding that Walmart was negligent.
A. Standard of Review
In resolving a legal sufficiency issue, an appellate court determines "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 582 (Tex. App.—Texarkana 2012, no pet.). "In looking at the evidence, we credit favorable evidence if a reasonable jury could and disregard contrary evidence unless a reasonable jury could not." Petrohawk Props., L.P. v. Jones, 455 S.W.3d 753, 770 (Tex. App.—Texarkana 2015, pet. dism'd) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). As we have stated previously,
The evidence is legally insufficient if (1) there is a complete absence of evidence of a vital fact; (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence offered to prove a vital fact; or (4) the opposite of the vital fact is conclusively established by the evidence.Id. (citing Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)). "More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions." Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
In evaluating factual sufficiency, we consider all the evidence, including any evidence contrary to the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The jury itself is the sole judge of witness credibility and the weight to be given testimony, McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); however, when a party without the burden of proof on an issue challenges the factual sufficiency of the evidence, the question on appeal is whether the evidence sufficiently supports the jury's conclusions, Gooch v. Am. Sling Co., 902 S.W.2d 181, 184 (Tex. App.—Fort Worth 1995, no writ). That is, as long as there is enough evidence before the fact- finder so that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the evidence, it will be deemed factually sufficient. We will only sustain a factual sufficiency challenge and "set aside the verdict 'if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Petrohawk Props., L.P., 455 S.W.3d at 779 (quoting Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)).
B. Analysis
Landowners have a "duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not." Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015). "Ordinarily, the landowner need not do both, and can satisfy its duty by providing an adequate warning even if the unreasonably dangerous condition remains." Id.; see also TXI Operations, L.P. v. Perry, 278 S.W.3d 763, 765 (Tex. 2009) (defendant could have satisfied duty by either repairing pothole or providing adequate warning sign). This Court has held that a wet floor warning sign and a verbal warning to "'be careful' because the 'floor may be a little damp'" was adequate as a matter of law to discharge a property owner's duty to an invitee. Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.—Texarkana 2010, no pet.). However, a verbal warning, alone, can be a sufficient warning. Bill's Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 369-70 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
An invitee is "one who enters the property of another 'with the owner's knowledge and for the mutual benefit of both.'" Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (quoting Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975)). Here, it is undisputed that Autrey was an invitee.
Here, because it was undisputed that Love, Walmart's employee, had actual knowledge of the condition caused by the spill, the jury was instructed that Walmart was negligent with respect to the condition of its premises if:
1. the condition posed an unreasonable risk of harm, andWalmart does not dispute that it knew of the danger posed by the spill. Rather, in its first point of error, Walmart contends that there was legally and factually insufficient evidence to show that (1) the spill posed an unreasonable risk of harm and that (2) Walmart failed to both adequately warn Autrey of the condition and failed to make the condition reasonably safe, as required by the jury charge.
2. [Walmart] knew or reasonably should have known of the danger, and
3. [Walmart] failed to exercise ordinary care to protect Jennifer Autrey from the danger, by both failing to adequately warn Jennifer Autrey of the condition and failing to make that condition reasonably safe.
1. Unreasonable Risk of Harm
Walmart argues that, because the spill was so large and visible, it was an "open and obvious condition" and, therefore, could not have imposed an unreasonable risk of harm. A condition is open and obvious, and thus not unreasonably dangerous, when it was known to the invitee or should have been known by the invitee. Advance Tire & Wheels, LLC v. Enshikar, 527 S.W.3d 476, 481 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972); abrogated on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978). Whether a condition poses an unreasonable risk of harm is generally a question of fact. See Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex. App.—Austin 2000, pet. denied), superseded by statute on other grounds, TEX. FIN. CODE ANN. § 304.102. A variety of factors may be considered in determining whether a condition poses an unreasonable risk of harm, including, but not limited to:
(1) whether the condition was clearly marked; (2) whether the injuries had occurred in the past; (3) whether any other invitees had complained about the condition; (4) whether the condition was unusual as compared to other conditions in the same class; and (5) whether the condition met applicable safety standards.Jefferson Cty. v. Akins, 487 S.W.3d 216, 226 (Tex. App.—Beaumont 2016, pet. denied).
Here, the evidence regarding the size and visibility of the spill was conflicting. It was undisputed that the spill was not marked by signs or other visible warnings. Love testified that another customer saw the spill and warned her about it, but the video recording shows several other customers walking by the spill, apparently without noticing it. Also, Walmart's own witnesses disagreed about the nature and size of the spill: Griffin testified that the spill was open and obvious and large enough to get Autrey's clothes wet when she fell, whereas Love described it as nothing more than a "dripping line" of liquid. Notwithstanding testimony that the spill consisted of orange soda and ice on a white floor, the spill was not visible in the color video recording of the incident shown to the jury, and based on the recording, the jury could have inferred that the spill was not "open and obvious." Finally, Autrey testified that she did not see the spill before she fell.
"It is the function of the jury to pass on the weight of the evidence and the credibility of the witnesses; and, where there is conflicting evidence, the jury verdict on such matters is generally regarded as conclusive." McClung v. Ayers, 352 S.W.3d 723, 728 (Tex. App.—Texarkana 2011, no pet.) (citing City of Keller, 168 S.W.3d at 827). This Court is not free to substitute its judgment for that of the jury. Id. From the evidence in this case, the jury could have believed the evidence indicating that—based on the spill's size and visibility—it was not open and obvious but, instead, was dangerous and posed an unreasonable risk of harm. See City of Keller, 168 S.W.3d at 827. The jury's finding is not against the great weight and preponderance of the evidence. See Petrohawk Props., L.P., 455 S.W.3d at 779. Therefore, we overrule this point of error.
2. Failure to Warn and Make Reasonably Safe
Jury Question No. 1 asked the jury whether Walmart "failed to exercise ordinary care to protect Jennifer Autrey from the danger, by both failing to adequately warn Jennifer Autrey of the condition and failing to make that condition reasonably safe." The jury answered, "[Y]es." Walmart contends that the evidence is legally and factually insufficient to support both required findings.
The Texas Supreme Court has "repeatedly described a landowner's duty as a duty to make safe or warn." Austin, 465 S.W.3d at 203. Because a property owner may discharge his obligation of ordinary care to an invitee by either providing an adequate warning or by making the hazardous condition reasonably safe, an invitee plaintiff in a premises liability case must show that the property owner failed to do both. See id.; State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (landowner not liable unless it neither adequately warned nor made condition reasonably safe). However, a plaintiff need not prove that a property owner's failure to warn and failure to make the premises safe independently caused the plaintiff's injuries. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 771 n.32 (Tex. 2010) (premises liability jury charge does not require separate proximate cause findings for failure to warn and failure to make safe).
Here, it is undisputed that there were no warning signs placed near the spill prior to Autrey's fall, and the evidence as to whether Love warned Autrey of the spill is conflicting. It is clear that Love had an opportunity to warn Autrey because the recording shows that she and her husband walked past Love as they entered the store and walked toward the spill. In addition, Autrey testified that Love made eye contact with her as she entered the store.
Love did not dispute that she had an opportunity to warn Autrey, but instead testified that she did, in fact, warn her. Specifically, Love testified that, as Autrey slipped and fell, she was telling Autrey and her husband to "watch out" for the spill. However, in a statement taken after the incident, Love stated that Autrey was "already falling" before she could warn her. Thus, Love herself presented two different versions of what happened. Autrey testified that Love never said anything to her, but Griffin claimed that Autrey told her that she had heard Love's warning but did not have time to react.
The jury was free to believe Autrey's testimony and Love's pretrial statement while rejecting Love's and Griffin's testimony that Autrey was warned. See McClung, 352 S.W.3d at 728 (citing City of Keller, 168 S.W.3d at 827). Accordingly, from the evidence in this case, the jury could have reasonably found that Walmart failed to adequately warn Autrey of the spill, and such a finding is not against the great weight and preponderance of the evidence. See City of Keller, 168 S.W.3d at 827; see also Petrohawk Props., L.P., 455 S.W.3d at 779.
However, as noted above, there must also be sufficient evidence that Walmart failed to make the spill reasonably safe. It is undisputed that the spill was not cleaned up prior to Autrey's fall. Walmart concedes that Love had actual knowledge of the spill, but it argues that it did not have an opportunity to make the spill reasonably safe because less than a minute elapsed between Love learning of the spill and Autrey's fall. In support of its argument, Walmart cites several cases. However, the cited cases are distinguishable from the present case.
Walmart cites these cases in support of its premise that "it is unjust to hold Walmart liable for the carelessness of the person who caused the wet spots on the floor without having had a reasonable opportunity to both warn Autrey and to make the condition reasonably safe." However, this argument misconstrues Walmart's duties as a property owner to its invitees. In order to avoid liability for injuries caused by the spill, Walmart needed to either adequately warn Autrey or to make the spill reasonably safe; Walmart did not need to do both. See Austin, 465 S.W.3d at 203; Williams, 940 S.W.2d at 584. In other words, to establish liability, Autrey was required to prove that Walmart both failed to warn her of the spill and failed to make the premises reasonably safe for her, whereas, to avoid liability, Walmart needed only to have performed one of those activities.
In Wal-Mart Stores, Inc. v. Chavez, two employees were cleaning up a bottle of wine that had broken on the floor when a customer informed them that cooking oil had spilled on the floor two aisles away, and even though one of the employees left immediately to deal with the second spill, in the ten-to-fifteen seconds it took him to get there, the plaintiff had already slipped and fallen. Wal-Mart Stores, Inc. v. Chavez, 81 S.W.3d 862, 865 (Tex. App.—San Antonio 2002, no pet.). The jury found for the plaintiff, but the court of appeals reversed the verdict and entered a take-nothing judgment, holding that there was legally insufficient evidence that Walmart had actual notice of the second spill prior to the plaintiff's fall, and "even assuming" that Walmart had actual knowledge, there was nothing more than "surmise or suspicion that Wal-Mart did not exercise reasonable care to clean up the oil timely" because the employee proceeded to the second spill "immediately." Id. at 864-65. The facts of the present case are distinguishable from those of Chavez. Here, there is no dispute that Walmart had actual knowledge of the spill prior to Autrey's fall, and there is more than a surmise or suspicion that Walmart failed to exercise reasonable care, because Love had an opportunity to clean the spill and/or warn Autrey of the spill prior to her fall, opportunities to exercise reasonable care not present in Chavez. See id.
In Loberg v. HEB Grocery Co., L.P., a call was made over the store's loudspeaker for maintenance to come and clean up a wet spill, and an employee arrived at the spill in less than a minute only to find that the plaintiff had already fallen. Loberg v. HEB Grocery Co., L.P., No. 04-10-00875-CV, 2011 WL 4828198, at *1 (Tex. App.—San Antonio Oct. 12, 2011, pet. denied) (mem. op.). The court of appeals affirmed a no-evidence summary judgment granted in favor of the defendant, HEB, finding that there was no evidence "that an employee saw and reported the spill. The spill could have been reported by a customer." Id. Here, as stated above, it is undisputed that Love had actual notice of the spill prior to Autrey's fall, that she warned other customers of it, and that she was standing near the spill when Autrey slipped and fell in it. Therefore, the facts of this case are distinguishable from those of Loberg.
Walmart also cites several constructive notice cases, arguing that their discussion of the time-notice rule for determining when a premises owner may be deemed constructively aware of a hazard are "instructive on the issue of whether Walmart had a sufficient time to warn Autrey and clean up the wet spot before she fell." Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006). In Spates, the plaintiff slipped and fell on a clear, plastic ring from a six-pack of drinks that she testified "had to have been on the floor" for thirty to forty-five seconds before she slipped on it, but the Texas Supreme Court held that her testimony was legally insufficient evidence that the store employee working on the shelves nearby should have discovered the ring. Id. at 567-68. In Richardson v. Wal-Mart Stores, Inc., a plaintiff slipped and fell in a puddle of liquid cleanser, and the jury awarded the plaintiff damages, but the trial court granted Walmart's motion for judgment notwithstanding the verdict. Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 164 (Tex. App.—Texarkana 1998, no pet.). This Court affirmed the trial court's decision because there was neither direct nor circumstantial evidence that the puddle had been on the floor long enough to charge the store with constructive notice of it. Id. at 165-66.
In Brookshire Food Stores, L.L.C. v. Allen, this Court found evidence that grapes having been on the floor for fifteen minutes or less was legally insufficient to show that the property owner had constructive knowledge of the dangerous condition the grapes created. Brookshire Food Stores, L.L.C. v. Allen, 93 S.W.3d 897, 901 (Tex. App.—Texarkana 2002, no pet.). Similarly, in Taylor v. Good Shepherd Hospital, Inc., the Tyler Court of Appeals held that evidence that a step stool had been left in an aisle for five to seven minutes was legally insufficient to raise a fact issue as to constructive notice. Taylor v. Good Shepherd Hosp., Inc., No. 12-04-00159-CV, 2005 WL 2035836, at *3 (Tex. App.—Tyler Aug. 24, 2005, no pet.) (mem. op). Nevertheless, the constructive notice cases cited do not support Walmart's argument in this case: constructive knowledge of a hazard is only relevant as a substitute in the law for actual knowledge, and here, it is undisputed that Walmart had actual notice of the spill. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000).
Having heard the testimony and viewed the recording of the incident, the jury was free to weigh the evidence, reach its own conclusions, and reasonably determine that Walmart failed to take ordinary care to make the premises reasonably safe. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (jury competent to view photos and draw its own conclusions). It is undisputed that Walmart had actual notice of the spill and that it failed to clean the spill prior to Autrey's fall. Love could not have placed warning signs or barriers around the spill because there were no spill stations located near the store's front entrance and self-checkout area where the fall occurred, and Love testified that the nearest spill station was on "the other side of the store." The recording shows that, before stationing herself near the entrance/exit door, Love stood by the spill with a roll of paper towels in her hand, but that she failed to clean up any portion of it. Even though there was testimony that the entire spill was too large for Love to clean up on her own, the jury could have believed Love's description that the spill was merely a "dripping line of liquid." The jury was free to accept Walmart's argument that Love calling maintenance to clean the spill was reasonable, but it was also free to reject Walmart's conclusion that calling maintenance and warning other customers rendered the spill reasonably safe. See id.
Furthermore, the jury could have determined that the spill could not have been made reasonably safe by the time Autrey entered the store, thereby requiring Walmart to adequately warn Autrey of the spill in order to avoid liability. See Del Lago Partners, Inc., 307 S.W.3d at 771 n.32 (jury could have reasonably found that no warning would have been adequate, rendering property-owner liable for failing to make condition safe). Therefore, based on the foregoing, in addition to being legally sufficient, the jury's finding that Walmart failed to take ordinary care to make the premises reasonably safe was also supported by factually sufficient evidence because reasonable minds could differ on the meaning and weight of the evidence and the finding was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See McMillan v. Hearne, 584 S.W.3d 505, 512 (Tex. App.—Texarkana 2019, no pet.); Petrohawk Props., L.P., 455 S.W.3d at 779. Accordingly, we overrule this point of error.
III. The Jury's Award of Past and Future Medical Care Expenses Was Supported by Legally and Factually Sufficient Evidence of Proximate Cause
In its second point of error, Walmart contends that the evidence was legally and factually insufficient to show that Autrey's fall proximately caused her past and future medical care expenses. Specifically, Walmart contends that Autrey failed to rule out her pre-existing asymptomatic disc disease as a proximate cause of her medical damages.
Although phrased as a challenge to the sufficiency of the award of past and future medical expenses, Walmart does not challenge the amount of past or future medical expenses award by the jury. Walmart's core argument that Autrey failed to properly exclude her pre-existing condition as a proximate cause is a challenge to the sufficiency of the evidence supporting the jury's proximate cause finding that supports the award.
We previously stated the standard of review for legal and factual sufficiency. When "an accident victim seeks to recover medical expenses, she must show both what all the conditions were that generated the expenses and that all the conditions were caused by the accident." JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 162 (Tex. 2015). However, in order to be held liable, a defendant's act or omission need not be the sole cause of the plaintiff's injury "as long as it is a substantial factor in bringing about the injury." Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex. 2017); Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex. 1992).
Where "there is evidence of other plausible causes of the injury that could be negated, the plaintiff must provide evidence that excludes those plausible causes with reasonable certainty." Windrum v. Kareh, 581 S.W.3d 761, 778 (Tex. 2019). "[E]xpert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors." Garza, 466 S.W.3d at 165. "[I]f the 'facts' support several possible conclusions, only some of which establish that the defendant's negligence caused the plaintiff's injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert's opinion." Windrum, 581 S.W.3d at 778. Walmart contends that the evidence supporting the jury's awards for past and future medical expenses was legally and factually insufficient because Autrey failed to exclude her pre-existing disc disease as the proximate cause of her future medical expenses.
Both of Autrey's treating physicians, Dr. Gordon, a neurosurgeon, and Dr. Griffith, an interventional pain-management doctor, admitted that, prior to her fall, Autrey had a pre-existing, arthritis-type, asymptomatic disc disease in her neck. Autrey's MRI report referred to her condition as spondylosis, which is the usual medical term used to describe normal wear-and-tear changes in the human spine. Dr. Gordon testified that, "as all of us age, we get some degenerative changes in various levels in the spine, and oftentimes that will be accompanied with bone spurring or little bits of calcium deposits that will grow around the joint," and, at some point, that will cause most people to experience back and neck pain.
Although Dr. Gordon agreed that Autrey's MRI's, CT scans, and x-rays did not show a "specific trauma-induced event on her neck at Walmart from the date of the accident," he testified that, based on his treatment of Autrey, her patient history, her medical examinations, and having later performed her neck surgery, he believed that Autrey's fall at Walmart caused her neck pain, which, when more conservative treatment failed to alleviate the pain, resulted in spinal fusion surgery and further treatments. According to Dr. Gordon,
Ms. Autrey was a setup for an injury in her neck. I think that she had some preexisting degenerative change that was not bothering her. She was not aware of it which is, frankly, very common for anyone over age 40. And then I think when she fell, she had a sudden jerk of the neck that caused some -- enough irritation of the nerves, that were already somewhat pinched, to become symptomatic.Dr. Gordon further testified, "I believe that she did have preexisting problems that were asymptomatic and then they became symptomatic at the time of her fall."
Dr. Gordon testified that an MRI taken two months after Autrey's fall revealed that she had a bulging disc at C4-5 and a "pooched out" disc at C5-6 pinching on her nerves and spinal cord. He testified that Autrey felt pain "because her nerves were irritated at the time of the fall and that [bone spurs in her neck] were causing continued irritation." Because Autrey's continuing complaints of pain and weakness were not being alleviated by more conservative treatment, Dr. Gordon performed the surgery on her neck about six months after her fall. He removed a bad disc and some bone spurring that were pressing on her nerves, and he put in a cadaver bone and a small plate to fuse the C5-6 vertebrae. Dr. Gordon opined that, because the spinal fusion surgery would restrict Autrey's movement, it would result in accelerated wear and tear of the surrounding vertebrae and in fifteen or twenty years, that wear and tear would require another spinal fusion surgery. However, when asked whether, in his opinion, Autrey "would have some need for treatment for [her] neck in the future, with or without the fall at Walmart," Dr. Gordon responded, "I simply don't know."
After the surgery, Autrey continued to experience pain even though her post-operative medical scans were "favorable." Based on that evidence, it was Dr. Gordon's medical opinion that Autrey's "persistent neuropathic pain" was "coming from the nerves themselves." While she did not have any type of functional disability that would prevent her from performing physical activities, her future activities would be limited based on how her pain might impact her.
Dr. Griffith testified that, after Autrey's fall, but prior to her surgery, he gave her several cervical epidural steroid injections. After Autrey's surgery, she continued to see Dr. Griffith due to her continuing pain. To treat and alleviate the pain, Dr. Griffith recommended that she get a spinal cord stimulator implanted in her spine. The procedure involved placing a wire into the epidural space in the spine and hooking it up to an implanted battery pack that sends a small electrical current to the back of the spinal cord. Dr. Griffith testified that the battery had to be replaced every nine years and that Autrey would need to visit his office every three to six months to have the implant checked and adjusted, if necessary.
Dr. Griffith did not remember Autrey ever saying that she had neck pain prior to her fall, but he believed that her fall at Walmart "caused her to come see [him] with pain in her neck." When asked for his opinion whether Autrey's treatment was related to her fall at Walmart or her pre-existing condition or a combination of both, Dr. Griffith said that it was "[m]aybe not a yes-or-no answer." In his response, he agreed that Autrey had a pre-existing condition in her neck, as "anyone over the age of 30" does, but he "believe[d]" that the "fall at Walmart" exacerbated that condition.
Both Dr. Gordon and Dr. Griffith agreed that Autrey had a pre-existing condition in her neck. However, a tortfeasor takes a plaintiff as he finds her. Coates v. Whittington, 758 S.W.2d 749, 752 (Tex. 1988). "If a latent condition does not cause pain or suffering, but that condition plus an injury caused such pain, then the injury, and not the latent condition, is the proximate cause." Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 591 (Tex. 2015) (worker's compensation). Similarly, if supported by sufficient expert evidence, a plaintiff may recover medical damages proximately caused by a tortious event that aggravated a pre-existing medical condition. See Wal-Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 352-53 (Tex. App.—Dallas 2009, pet. denied); Cavitt v. Jetton's Greenway Plaza Cafeteria, 563 S.W.2d 319 (Tex. App.—Houston [1st Dist.] 1978, no writ) (injury means physical damage or harm, including aggravation of pre-existing disease or condition by reason of such physical harm).
Here, there was legally and factually sufficient evidence that Autrey's medical expenses were proximately caused by her fall in Walmart rather than her pre-existing condition. See Petrohawk Props., L.P., 455 S.W.3d at 779. Even if Dr. Griffith's testimony was conclusory, as Walmart contends, the jury was free to believe Dr. Gordon's medical opinion—based on his examination of Autrey, her patient history, her medical examinations, and his experience with similar patients—that her fall in Walmart aggravated Autrey's pre-existing, asymptomatic condition, causing Autrey significant pain that required surgery and further treatment. See id.; see Crosby, 295 S.W.3d at 352-53; Cavitt, 563 S.W.2d 319. In addition, Dr. Griffith "believe[d]" the fall caused Autrey to come see him for neck pain treatment, and his testimony was very clear that he agreed that her fall at Walmart exacerbated her pre-existing condition. It is the jury's province to weigh the evidence. Also, there is evidence that Autrey complained of neck pain prior to her fall, and the jury could have found Dr. Gordon's testimony about causation persuasive, weighed that conflicting evidence, and determined that her fall caused her injuries and medical expenses. See McClung v. Ayers, 352 S.W.3d 723, 728 (Tex. App.—Texarkana 2011, no pet.).
Moreover, the jury was charged, in part, "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." From the medical testimony at trial, the jury could have reasonably determined that Autrey's pre-existing condition was "aggravated" by her fall in Walmart and awarded her past and future medical expenses necessary to treat that aggravation. See Crosby, 295 S.W.3d at 352-53; Cavitt, 563 S.W.2d 319. The finding is supported by both legally and factually sufficient evidence because it was supported by more than a scintilla of evidence, and it was not against the great weight and preponderance of the evidence. See City of Keller, 168 S.W.3d at 827; see also Petrohawk Props., L.P., 455 S.W.3d at 779. Therefore, we overrule this point of error.
IV. The Trial Court Did Not Err in the Jury Charge
In its final point of error, Walmart contends that the trial court erred by refusing to give Walmart's requested "sole proximate cause" instruction.
We review an alleged error in the jury charge for an abuse of discretion. Berg v. Wilson, 353 S.W.3d 166, 176 (Tex. App.—Texarkana 2011, pet. denied). A trial court's refusal to submit a party's requested jury question or instruction will only constitute an abuse of discretion if the court acts without guiding rules or principles. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647 (Tex. 1990). "The goal of the charge is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly and completely." Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). Accordingly, the trial court is accorded broad discretion so long as the jury charge is legally correct. Id.
The Texas Pattern Jury Charges provide several different instructions when the defendant contends that someone or something other than itself caused the occurrence, including a "sole-proximate-cause instruction" for when "the occurrence is caused by a person not a party to the suit." Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005). "The purpose of these instructions is to advise the jurors, in the appropriate case, that they do not have to place blame on a party to the suit if the evidence shows that conditions beyond the party's control caused the accident in question or that the conduct of some person not a party to the litigation caused it." Id.
Under a sole proximate cause instruction, the "act of a third party that is determined to be the sole proximate cause of [an accident] is a complete defense to a negligence suit regardless of whether such third party was negligent" because it negates an essential element of the plaintiff's case. Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194, 207 (Tex. App.—Texarkana 2000, pet. denied). In its charge, the trial court must submit all questions, instructions, and definitions raised by the pleadings and evidence. See Rodriguez, 995 S.W.2d at 663. Therefore, the trial court's failure to submit a sole proximate cause instruction is reversible error if the jury could have found that a non-party was the sole proximate cause of the accident. Bel-Ton Elec. Serv., Inc. v. Pickle, 915 S.W.2d 480, 481 (Tex. 1996).
Walmart submitted a sole proximate cause instruction using the form of Texas Pattern Jury Charge 65.6, but the trial court refused the instruction and did not charge the jury on sole proximate cause. Here, Walmart argues that the trial court erred in refusing to submit its sole proximate cause instruction because evidence from the security recording raised the issue that a man in a blue shirt, a third party, was the sole proximate cause of Autrey's fall. In the recording, a man in a blue shirt can be seen walking by the self-checkout area as he exited the store. As he walked out, he swung something he was holding in his right hand. Griffin testified that the man was swinging something in his hand that looked like a cup and that he walked through the area where Autrey later fell. Love testified that, after having viewed the recording, she believed that the "customer swinging his cup" was the source of the liquid on the floor, even though she did not see any liquid coming out of the cup. The parties stipulated that, in the forty-five minutes prior to his exit, "there doesn't appear to be any customer or Walmart associate that reacts to anything on the floor" until a customer alerts Love to the spilled liquid.
As its name suggests, there can only be one sole proximate cause of an event. See Holland v. DeLeon, 118 S.W.2d 489 (Tex. App.—San Antonio 1938, writ ref'd). Evidence of a sole proximate cause, if believed by the fact-finder, negates the plaintiff's causation element as to the defendant. See Huckaby, 20 S.W.3d at 207. For instance, in Pickle, a man was crushed by an airplane hangar door for which Bel-Ton had moved the control switches, but a sole proximate cause instruction was warranted because, between Bel-Ton's work and the decedent's death, one of the decedent's co-workers had intentionally tampered with switches to make the door close automatically. Pickle, 915 S.W.2d at 481. Similarly, in Perez v. DNT Global Star, L.L.C., a woman brought a premises liability claim against her landlord for failing to provide proper security after her son was shot and killed at her apartment, but a sole proximate cause instruction was warranted because the murderer's actions could have been the sole proximate cause of her son's death. Perez v. DNT Global Star, L.L.C., 339 S.W.3d 692, 699 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Here, even if the jury believed that the man was holding a cup, that it had a liquid in it, and that he spilled it on the floor as he walked out of the store, those actions would not negate the fact that Autrey's fall was proximately caused by Walmart's failure to warn invitees of the spill or to make the premises reasonably safe. See Huckaby, 20 S.W.3d at 207; Berg, 353 S.W.3d at 176. Therefore, the trial court acted within its discretion in refusing to give Walmart's sole proximate cause instruction. See Pickle, 915 S.W.2d at 481; Berg, 353 S.W.3d at 176.
Accordingly, we overrule this point of error and affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: December 2, 2020
Date Decided: April 1, 2021