IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20613
Summary Calendar
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JAMES DILLON,
Plaintiff-Appellee,
VERSUS
WAL-MART STORES, INC.,
and
DICTAPHONE CORP.,
Defendants,
WAL-MART STORES, INC.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CV-814)
_________________________
October 5, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
In a diversity action based on premises liability, James
Dillon sued Wal-Mart Stores, Inc. (“Wal-Mart”), and Dictaphone
Corporation for injuries sustained from a fall from a ladder on
Wal-Mart's premises. A jury awarded $170,000 in damages and future
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
medicals. We reduce the damages and render judgment.
I.
Working as a repairman for Dictaphone Corporation, Dillon was
dispatched to a Wal-Mart store to repair a satellite dish on the
roof. The ladder leading to the roof was located inside the store,
in an area restricted to employees and other authorized personnel.
As a repairman, Dillon was authorized to use this ladder and had
done so several times in the past.
On the date of the accident, Dillon climbed up and down the
ladder two times without incident, but when he climbed down the
third time, he cut his left hand on a “bur” on one of the rungs,
causing him to lose his balance and fall to the floor. Dillon was
carrying the satellite head in one hand and was not using the
safety devices Dictaphone had provided him (a safety belt and rope
and pulley gear). A jury found Wal-Mart 80% at fault and
Dillon 20%.
II.
The court instructed the jury that Wal-Mart's duty to Dillon
encompassed the use of “ordinary care to reduce or eliminate an
unreasonable risk of harm created by a premises condition that the
owner or occupier knows about or in the exercise of ordinary care
should know about.” This was a correct statement of the law. See
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Montes v.
Indian Cliffs Ranch, Inc., 946 S.W.2d 103, 107 (Tex. App.SSEl Paso
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1997, writ denied).
Wal-Mart argues that a different standard of care applies to
business invitees, including independent contractors, under Texas
law.1 According to Wal-Mart, occupiers of land do not have a duty
to protect invitees from open and obvious hazards. See Summers v.
Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 28 (Tex. App.SSHouston
[1st Dist.] 1995, writ denied). In support of its argument,
Wal-Mart cites the following:
The Supreme Court also stated that if there
are dangers that are open and obvious of which
an invitee knows or of which it is charged
with knowledge, then the occupier owes the
invitee no duty to warn or to protect the
invitee.
Id. at 28 (citing Halepeska v. Callihan Interests, Inc., 371 S.W.2d
368, 378 (Tex. 1963)). Correspondingly, Wal-Mart requested a jury
instruction reflecting this articulation of the “no-duty” rule.
Because Summers's articulation of the law was incorrect, Wal-Mart's
requested instruction was properly denied.
In Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978),
the court unequivocally abolished the “no duty” rule. See Parker,
565 S.W.2d at 517 (“We now expressly abolish the so-called no-duty
concept in this case and . . . henceforth in the trial of all
actions based on negligence . . . .”) (quotations omitted).
Therefore, the Summers court unfortunately cited to a holding from
a 1963 case, Halepeska, which had been overruled by Parker in 1978.
1
For purposes of this discussion, we assume, as per Wal-Mart's argument,
that Dillon was an independent contractor and thus an invitee.
3
So, Wal-Mart's argument is without authoritative support.2
III.
Wal-Mart challenges the $100,000 awarded for medical costs,
claiming that Dillon's discovery violations barred the admission of
evidence used to calculate the award and that the award is not
supported by sufficient evidence and exceeds the amount of costs
conceded by Dillon's attorney in closing argument. We agree in
part.
A.
Evidentiary rulings are matters within the district court’s
discretion and are reversed only for manifest error. Guillory v.
Dotmar Indus., 95 F.3d 1320, 1329 (5th Cir. 1996). It was not an
abuse of discretion to allow either the past medical expenses, or
testimony regarding them, into evidence. Although Dillon was tardy
in producing his medical bills, any error in admitting them was
harmless. Wal-Mart had timely notice of them, and the court
limited their use to those that he could prove through other
evidence.
2
The other two cases cited by Wal-Mart in support of the no-duty rule,
M-T Petroleum, Inc., 926 S.W.2d 814 (Tex. App.SSEl Paso 1996, no writ), and Richard
v. Cornerstone Constr., Inc., 921 S.W.2d 465 (Tex. App.SSHouston [1st Dist.] 1996,
writ denied), do so, if at all, in dicta only. These cases did not concern open and
obvious hazards, nor did they deal with premises liability on facts analogous to the
instant matter. See M-T Petroleum, 926 S.W.2d at 816-17; Richard, 921 S.W.2d at
468.
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B.
We agree with Wal-Mart's assertion that the record does not
support a medicals award of $100,000 and that Dillon's counsel's
acknowledgment of $39,118.26 in medical costs is chargeable against
Dillon, serving as a cap on what the court may award. Because an
award of $39,118.26 could be rationally supported by the record, we
set this amount as the proper medicals award.
In King v. Armstrong World Indus., 906 F.2d 1022, 1025 (5th
Cir. 1990), we held that an attorney's remarks, made in closing,
constituted binding admissions against the party he represented.
King is consistent with long-established Supreme Court and Fifth
Circuit precedent:
The power of the court to act in the
disposition of a trial upon facts conceded by
counsel is as plain as its power to act upon
the evidence produced. . . . In the trial of
a cause the admissions of counsel, as to
matters to be proved, are constantly received
and acted upon. They may dispense with proof
of facts for which witnesses would otherwise
be called. They may limit the demand made or
the set-off claimed.
Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880) (emphasis added);
Collins v. Texas Co., 267 F.2d 257, 258 (5th Cir. 1959) (citing
Oscanyan as good authority).
While Dillon is correct in asserting that attorneys'
statements do not constitute substantive evidence, he is incorrect
in concluding from this that such statements cannot constitute
admissions chargeable against a party. The terms “evidence” and
“admissions” represent different concepts: Evidence presented at
trial serves to assist the factfinder in ascertaining the truth;
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admissions made at trial constitute the truth. That is, an
admission establishes, conclusively, a legally operative truth,
whereas evidence serves merely as the building blocks of truth.
See generally Ediberto Roman, "Your Honor, What I Meant to State
Was . . .”: A Comparative Analysis of the Judicial and Evidentiary
Admission Doctrines as Applied to Counsel Statements in Pleadings,
Open Court, and Memoranda of Law, 22 Pepp. L. Rev. 981 (1995).
IV.
Wal-Mart challenges the apportionment of liability. There
was, however, sufficient evidence from which the jury could
conclude that Wal-Mart was 80% liable. Wal-Mart’s negligence in
providing Dillon with a dangerously defective ladder was the
primary cause of this incident. The role played by Dillon’s
failure to use his safety equipment, and by his pre-existing
condition (diabetes), is uncertain at best, and a 20% apportionment
on account of these factors is not unreasonable.
Wal-Mart is also incorrect in asserting that the OSHA safety
regulations were erroneously presented to the jury. As Dillon
accurately points out, such regulations are useful evidence of the
standard of care with which Wal-Mart had a duty to comply. See
Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 720 (Tex. App.SSSan
Antonio), appeal dismissed, 1995 WL 654562 (Nov. 8, 1995).
V.
Wal-Mart complains of the decision to allow the jury to
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examine photocopies of certain photographs admitted into evidence.
Allowing the jurors to examine these photocopies during
deliberations did not constitute harmful error, because it could
have had no prejudicial effect on deliberations. The jurors were
already permitted to review the photographs, and the enlargement of
them via photocopying rendered them neither inaccurate nor
prejudicial.
The judgment is MODIFIED, and judgment is hereby RENDERED for
$109,118.26.
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