IN THE
TENTH COURT OF APPEALS
No. 10-02-00349-CV
Billy Glenn Elwood,
Appellant
v.
The Kroger Co.,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court # 54-96
MEMORANDUM Opinion
Billy Elwood sued for injuries he received while working for his former employer The Kroger Company. After trial to a jury, the trial court rendered judgment for Elwood. Elwood and Kroger each filed a notice of appeal. Kroger raises two issues: (1) legally insufficient evidence to support the jury’s finding of negligence and (2) factually insufficient evidence to support the jury’s finding of negligence and the amount of damages awarded. Elwood asserts three issues: (1) trial court error in giving effect to the jury’s finding of Elwood’s comparative negligence, (2) trial court error in granting Kroger’s motion for new trial after default judgment, and (3) trial court error in cutting off pre-judgment interest early. We will overrule Kroger’s legal and factual sufficiency issues. We will sustain Elwood’s comparative negligence and pre-judgment interest issues and reform the judgment to award the full amount of damages found by the jury plus pre-judgment interest through the day preceding the date the judgment was rendered. We will not consider Elwood’s motion for new trial issue.
BACKGROUND
Elwood worked as a courtesy clerk for Kroger in Cleburne, Texas. His duties included bagging groceries, putting the bags into shopping carts, taking the shopping carts to the customers’ cars, and putting the bags into the customer’s cars. While putting bags into the cab of one customer’s truck, Elwood held the cart with one foot to prevent it from rolling down a steep slope in the parking lot and balanced himself against the truck with his left hand while he reached for the bags with his right hand. The customer closed her door onto Elwood’s left hand. Elwood sued Kroger, a “non-subsriber” under the Worker’s Compensation statutes, for the injuries to his hand. Elwood obtained a default judgment, but Kroger filed a motion for new trial, which was granted. Later, Elwood filed a motion to set aside the order granting the new trial; that motion was denied. Finally, a jury found Kroger negligent and awarded Elwood past and future damages. Based on the jury finding that Elwood was 40% negligent, the trial court reduced the damages award by 40%.
KROGER’S ISSUE ONE: LEGAL SUFFICIENCY
We review no-evidence points by considering only the evidence and all reasonable inferences that support the jury=s finding while disregarding all evidence and inferences to the contrary. Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge must fail. Id. There is “some evidence” when the proof furnishes a reasonable basis for reasonable minds to reach differing conclusions as to the existence of a crucial fact. Id. If the evidence is so weak as to do no more than create a mere surmise or suspicion of its existence, its legal effect is that it is no evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex. 1995). Generally, if the court of appeals sustains a "no evidence" point, it is the court's duty to render judgment for appellant.[1] Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986) (quoting Nat’l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex. 1969)).
A no-evidence point must and can only be sustained when the record reveals: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence conclusively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n.9 (Tex. 1990) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362‑63 (1960)).
The elements of a negligence cause of action are (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Whether a duty exists is a threshold question of law for the court to decide from the facts surrounding the case. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). The plaintiff must establish both the existence of a duty to the plaintiff by the defendant and a violation of that duty to establish liability in tort. Greater Houston, 801 S.W.2d at 525.
Employers are not insurers of their employees’ safety at work, but employers do have a duty to exercise ordinary care in providing its employees with a safe place to work. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). This duty includes providing rules and regulations for the safety of employees and furnishing safe equipment. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex. 1981). Employers also have a duty to warn employees of hazardous conditions of their employment and to supervise their activities. Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975). Employers usually have and should have the greater knowledge of dangers and risks of injury to their employees. Cabrera v. Delta Brands, Inc., 538 S.W.2d 795, 797 (Tex. Civ. App.—Texarkana 1976, writ ref’d n.r.e.).
The components of proximate cause are cause in fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Causation may be established by circumstantial evidence. Farley, 529 S.W.2d at 755. “The test for cause in fact is whether the negligent ‘act or omission was a substantial factor in bringing about injury,’ without which the harm would not have occurred.” C.J. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (citing Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 164 (Tex. 1995)). Cause in fact is a matter that is a particularly apt question for a jury. Farley, 529 S.W.2d at 756. Foreseeability requires only that the general danger, not the exact sequence of events that produced the injury, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).
Kroger argues that because (1) Elwood’s job was not unusual nor did it pose a foreseeable threat of injury, (2) Kroger provided a safe manner to perform his work, and (3) Elwood chose to perform his duties in an unsafe manner, Elwood failed to prove negligence. Kroger also argues that Elwood’s type of injury was not foreseeable and the connection between Kroger’s actions and Elwood’s injuries may be too attenuated to constitute legal cause.
Elwood argues that there is evidence in the record that Kroger was negligent and its negligence was a proximate cause of Elwood’s injuries. The evidence supporting the verdict includes: (1) Elwood did not receive any training regarding how to perform the specific tasks of his job, particularly taking groceries to customers’ cars and placing them in the customers’ cars, (2) Kroger did not warn Elwood of the dangers relating to the slope in the parking lot, (3) Kroger did not provide reasonable tools (wheel blocks or shopping carts with wheel locks) to avoid placing himself at risk, (4) Kroger did not make additional personnel available when courtesy clerks had to take groceries to customers’ cars in the sloped part of the parking lot, (5) Kroger did not adequately supervise the performance by courtesy clerks, and (6) Kroger was aware of a prior incident where a cart rolled into a customer’s car. Elwood argues that his injury was foreseeable by Kroger because courtesy clerks are required to cross the threshold of either a door or a trunk to perform their job. Elwood also argues that he was only working for Kroger for one month so Kroger had greater knowledge of the dangers of his job and steps to take to minimize the risk of injuries.
The evidence recited by Elwood are the facts and reasonable inferences that support the verdict, which on review of a legal sufficiency challenge, are the only facts and inferences we are allowed to review. Reviewing only this evidence, we find legally sufficient evidence to support the finding of negligence and proximate causation, i.e., more than a scintilla of evidence that Kroger was negligent in not properly training or supervising Elwood, not providing reasonable tools, and not warning him of possible dangers of his job, that Elwood’s injury was foreseeable, and that Kroger’s breach of its duty was a substantial factor in causing Elwood’s injury. We overrule Kroger’s first issue.
KROGER’S ISSUE TWO: FACTUAL SUFFICIENCY
When we review an "insufficient-evidence" point challenging the factual sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, we may set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.CWaco 2000, pet. denied). We may not pass upon the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998); Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at 633 (citing William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 n.11 (1991)).
Negligence
Kroger argues that it provided to Elwood a reasonable and safe way to perform his job, but he chose not to perform it in a safe manner. Kroger relies on the following evidence to support its arguments: (1) Elwood’s job was a courtesy clerk at Kroger, which included taking sacked groceries to customers’ cars in shopping carts and placing the bags into customers’ cars, (2) Elwood was injured while balancing himself against a customer’s truck while trying to take a bag out of the shopping cart and the customer closed her door on Elwood’s hand, (3) Elwood testified he could have taken out the bag without balancing on one leg and steadying himself by placing his hand on the customer’s truck, (4) Elwood testified there was an alternative way to take the bag out of the cart that would not have led to this injury, (5) Elwood testified that even if he needed to steady himself by placing his hand against the truck, it was not necessary for him to place his hand in the doorjamb, and (6) Elwood testified that his job as a courtesy clerk was not complicated.
Elwood relies on the evidence stated above in his legal sufficiency arguments regarding lack of training, supervision, proper tools, and additional assistance.
Kroger does not argue any overwhelming evidence to negate the jury’s finding. We do not find that the evidence, both for and against the jury’s finding, is so weak or insufficient to render the jury’s finding clearly wrong or unjust. Cain, 709 S.W.2d at 176; Checker Bag, 27 S.W.3d at 633. We hold that there is factually sufficient evidence to support the jury’s finding that Kroger’s negligence proximately caused Elwood’s injury. We overrule Kroger’s second issue as to negligence.
Damages
The jury charge instructed the jury to consider four elements to determine amounts for past and future damages. These elements included (1) physical pain and mental anguish, (2) loss of earnings, (3) physical impairment, and (4) medical care. The jury awarded $61,200.00 for past damages and $61,350.00 for future damages. To successfully challenge a multi-element damages award on appeal, an appellant must address all of the elements and show that the evidence is factually insufficient to support the entire damages award. Price v. Short, 931 S.W.2d 677, 688 (Tex. App.—Dallas 1996, no writ); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex. App.—Corpus Christi 1993, writ denied). A failure to address an element of damages results in waiver of the sufficiency challenge. Price, 931 S.W.2d at 688.
Kroger broadly argues that the damages awarded to Elwood were excessive and not supported by factually sufficient evidence. Kroger relies on the following evidence: (1) Dr. Herr took Elwood off of work for only five days, (2) Elwood only obtained one prescription for medication, (3) after approximately one month, Elwood could have performed similar duties but chose not to go back to work, (4) Elwood did not see a doctor from one month after his accident in 1994 until 2001, and (5) the total medical expenses were $1,000.00 and he was only taken off of work by his doctor for one week.
Elwood argues that Kroger does not address all of the elements of damages. He says that Kroger argues only evidence in the record regarding loss of wages, cost of medication, and actual medical expenses and has therefore waived its challenge.
Kroger fails to demonstrate how the evidence is insufficient to support loss of earnings and medical care and fails to argue how the evidence is insufficient to support pain and mental anguish and physical impairment at all. Therefore, we agree with Elwood that Kroger waived its factual sufficiency challenge on damages. Price, 931 S.W.2d at 688.
Even if Kroger did not waive its factual sufficiency challenge on damages, we would find factually sufficient evidence to support the jury’s award of damages. The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. See Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685, 690 (Tex. App.—Dallas 1987, writ denied). Matters of past and future physical pain, mental anguish, and physical impairment are particularly within the jury's province. Marvelli v. Alston, 100 S.W.3d 460, 482 (Tex. App.—Fort Worth 2003, pet. denied). Loss of past and future earning capacity is largely within the discretion of the jury. Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 435-37 (Tex. App.—Houston [14th Dist.] 2002, no pet.). The award of future medical care expenses is a matter particularly for the jury, and the jury may make its award based on the nature of the injuries, past medical care, and the condition of the injured party. Southwestern Bell Tel. Co. v. Davis, 582 S.W.2d 191, 195 (Tex. Civ. App.—Waco 1979, no writ). Reviewing all of the evidence in the record, we find factually sufficient evidence to support the jury’s damage award—the damages awarded are not manifestly wrong and unjust. Cain, 709 S.W.2d at 176; Checker Bag, 27 S.W.3d at 633. We overrule Kroger’s second issue as to damages.
ELWOOD’S ISSUE ONE: COMPARATIVE NEGLIGENCE
Kroger is a non-subscriber to worker’s compensation. Kroger requested a comparative negligence question be submitted to the jury, and the trial court submitted the question without objection by Elwood. The jury found Elwood 40% negligent. Elwood requested that the trial court disregard the jury’s finding in his post-trial motion for judgment. Nevertheless, the trial court reduced Elwood’s damages by the 40% when it entered the judgment.
A trial court may disregard a jury finding only if it is unsupported by evidence or if the issue is immaterial. Spencer v. Eagle Star Ins. Co. of America, 876 S.W.2d 154, 157 (Tex. 1994). The Texas Labor Code precludes a non-subscribing employer from asserting contributory negligence as a defense. Tex. Lab. Code Ann. § 406.033(a) (Vernon Supp. 2004-2005). The Texas Supreme Court has held that a non-subscribing employer is not entitled to a jury question on the employee’s alleged comparative responsibility. Kroger v. Keng, 23 S.W.3d 347, 352-53 (Tex. 2000). Therefore, the comparative negligence was immaterial, and the trial court erred in reducing Elwood’s damages by 40%. See Kroger v. Keng, 976 S.W.2d 882, 892 (Tex. App.—Tyler 1998), aff’d 23 S.W.3d 347 (Tex. 2000) (stating that a comparative responsibility question would always yield an immaterial finding). We sustain Elwood’s first issue and will reform the judgment to include the full amount of damages found by the jury: $61,200.00 in past damages and $61,350.00 in future damages.
ELWOOD’S ISSUE THREE: PRE-JUDGMENT INTEREST
The judgment in this cause was signed on September 12, 2002. However, the pre-judgment interest was calculated as of July 31, 2002.
Pre-judgment interest accrual ends on the day preceding the date judgment is rendered. Tex. Fin. Code Ann. § 304.104 (Vernon Supp. 2004-2005). Thus, the pre-judgment interest accrual should have ended on September 11, 2002. We sustain Elwood’s third issue and will reform the judgment to include pre-judgment interest to that date in the amount of $38,966.04.[2]
ELWOOD’S ISSUE TWO: GRANTING OF MOTION FOR NEW TRIAL
Elwood’s second issue urges us to review the grant of Kroger’s motion for new trial after a default judgment had been taken, asserting that there was a “fraud on the court” because the affidavit filed in support of the motion was not made on personal knowledge. He claims the lack of personal knowledge was conclusively proven when the affiant admitted it in a deposition taken later. Citing several Texas Supreme Court cases, he says that a trial court does not enjoy “unbridled discretion” when considering whether to grant a new trial under these circumstances. We disagree. A trial court's order within its plenary power setting aside a default judgment and granting a timely-filed motion for new trial is not reviewable on appeal. Cummins v. Paisan Const. Co., 682 S.W.2d 235, 236 (Tex. 1984) (per curiam); see also Wolk v. Life Partners, 994 S.W.2d 934, 935 (Tex. App.—Waco 1999, no pet.) (per curiam). We do not consider Elwood’s second issue.
CONCLUSION
We have overruled Kroger’s legal and factual sufficiency issues. We sustain Elwood’s comparative negligence and pre-judgment interest issues, and therefore we reform the judgment to award Elwood $61,200.00 in past damages, $38,966.04 in pre-judgment interest, $61,350.00 in future damages, and post-judgment interest as stated in the judgment. As reformed, the judgment is affirmed.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reformed and affirmed
Opinion delivered and filed November 10, 2004
[CV06]
[1] Here, appellant on the no-evidence issue is Kroger.
[2] $61,200 x 10% x 6.367 years (April 1, 1996 through September 11, 2002) = $38,966.04.