Court of Appeals of Texas, Amarillo.
EXCEL CORPORATION, Appellant,
v.
Hector REYES and Angela Reyes, Individually and as Next Friend for Crystal Reyes, Clara Reyes, and Carina Reyes, Minor Children, Appellees.
No. 07-99-0442-CV.
|
Oct. 17, 2000.
Before BOYD, C.J., and QUINN and REAVIS, JJ.
OPINION
REAVIS.
*1 By this appeal, appellant Excel Corporation, a non-subscribing employer,1 challenges a judgment following a jury trial that appellees Hector Reyes and Angela Reyes, individually and as next friend for Crystal Reyes, Clara Reyes, and Carina Reyes, recover actual damages, and that Hector Reyes recover exemplary damages from Excel for personal injuries sustained while Hector was employed by Excel. Excel contends that 1) Hector’s injury was not foreseeable and he presented no, or alternatively, factually insufficient evidence of Excel’s negligence; 2) it did not act with malice because the activity in which Hector was engaged did not present the likelihood of serious injury, and the evidence presented did not establish that Excel simply did not care whether Hector was injured; 3) the trial court erred by not submitting comparative responsibility; 4) the trial court erred by allowing evidence regarding Hector’s termination by Excel; and 5) the evidence is insufficient to support the damages awarded by the jury. Based upon the rationale expressed herein, we affirm.
Background
Hector was 29 years old at the time of trial. After graduating from Muleshoe High School, he worked for a local car dealership, as a water well driller, and as a plumber on new construction in Kansas. Upon returning to Texas, he worked as a laborer for an electric plant and a masa plant, trained as a boxer, and won the Golden Gloves Championship in New Mexico in 1994 and 1996. Upon receiving a phone call from Don Shepardson, an Excel maintenance trainer, inviting him to apply for a job, Hector began orientation at Excel on February 3, 1997.
As a new employee, Hector was considered a probationary employee for 45 days during orientation and training. Per Excel’s policy, a new employee is expected to undergo a two to three week orientation period and then is assigned to a qualified maintenance person for on-the-job training. During his training, Hector was introduced to the Cargill, Incorporated Meat Sector Safety Code Book and other training documents. As relevant here, the Code provides:
GUARDS
All drives, couplings, sprockets, chains, gears, and fans must be guarded.
Machine guards are to be removed only for repairs or adjustments. Machines MUST NOT BE OPERATED without a guard in place. Equipment must be “locked out” during the time when guards are removed and repairs are being performed.
(Emphasis in original). Paragraph 8 of Excel’s Corporation Safety Checklist, which was initialed by Hector provides:
Never remove a guard or operate a piece of machinery that does not have a guard in place. Guards must fully cover the moving parts of all machinery. Never operate any machinery or equipment unless authorized.
Hector’s orientation class included about 20 new employees. After approximately one week, the person in charge of orientation explained to Hector that as a maintenance trainee he would receive more training after orientation. On February 7, 1997, Hector and three other maintenance trainees met with their trainer, Don Shephardson, who had them review and sign multiple documents declaring that they had been trained on the machines named therein.
*2 Although Hector had never heard of, or been trained to work in the trolley room, he was assigned there to observe Thomas Pacheco, a maintenance worker, during the day shift for four to five days. Hector was then assigned to the night shift to work with Roel Barrera. According to Barrera’s supervisor, Lupe Gonzalez, Barrera was an experienced trolley room worker. Gonzalez explained that the trolley room services both the slaughter division of the plant as well as the fabrication division where the beef is boxed. A trolley is a hook with a roller attached that is used to hang carcasses and carry them on a rail from one end of the plant to another for processing. The trollies hang on a chain that winds through the entire plant and, after the beef is boxed, the trollies are returned to the trolley room to be cleaned and sanitized.
According to Gonzalez, approximately 5000 trollies are needed per shift, requiring the trolley room operator to clean one basket of trollies every two minutes. Each basket contains 20 trollies. The trollies are cleaned in a 200 degree acid bath, rinsed in 140 degree water, then dipped in 190 degree oil to prevent rusting. After an oil bath, the trollies are sent through a very loud and noisy blower system consisting of both fan and compressed air power. After the blower system, the trollies are sent to a staging area to drip dry before being sent to the slaughter division again. Gonzalez also testified that while the blowers are operating, the blades of the fans are not visible.
At the time of Hector’s accident, the blowers were mounted from the ceiling approximately eight feet from the floor, and were positioned toward the trollies as they emerged from the oil bath. According to Hector, the blowers were equipped with a segment of PVC pipe varying in length. The outflow portions of the blowers did not have guards. A drip pan was located below the blowers. Excel had been experiencing problems with excess oil on the trollies for about one year prior to Hector’s accident. The high-speed air from the blowers caused the oil on the trollies to break into fine droplets and remain in the air. Thus, because the blowers were not designed to take in outside air, they were recirculating inside air containing droplets of oil. Consequently, to remove the excess oil from the PVC pipes, a trolley room worker was required to access the pipes and wipe them dry using a rag. It was imperative that no oil remain on the trollies to prevent contamination of the carcasses, in violation of USDA regulations. According to Gonzalez, the oil problem was causing “down time.” A former Excel maintenance employee under Gonzalez’s supervision, Jaye Cooke, testified that supervisors constantly pressured employees because “time is money,” and supervisors’ bonuses were affected by “down time.”
Hector testified that during the day shift there was no oil problem because Pacheco was responsible for sending the trollies to production and a second employee was responsible for wiping the oil from the trollies. However, once Hector was transferred to the night shift to work with Barrera, after only one week Barrera insisted, over Hector’s objection, that Hector was ready to operate the trolley room alone. Barrera moved to a better position in production, and Hector began doing the job of two employees in the trolley room, working through his breaks to keep up with the demand for trollies. Despite his efforts, he received complaints from production that the trollies were too oily. After asking Gonzalez for help, Barrera and two other maintenance employees were dispatched to the trolley room to find the oil problem and resolve it. For three or four hours they wiped the excess oil from everything; however, because of the noise from the blowers, Hector could not hear what Barrera and the other employees discussed. Upon returning from his lunch break, Hector observed Barrera standing on the drip pan while wiping the pipes on the blowers. After completing his shift that day, he spoke with Barrera, who told him that he had found where the oil was coming from and solved the problem. Hector testified that Barrera explained:
*3 The problem is coming from the pipes…. They’re accumulating oil and they’re splattering oil on the trolleys instead of removing it…. So you won’t have any problems … every now and then wipe the pipes with a rag.
The next day, April 4, 1997, Hector reported to work in the trolley room at 3:00 p.m. Around 4:00 p.m., he checked the pipes and noticed oil dripping from the edges. He used a small ladder to access the drip pan, and using his right hand, he wiped the oil from the pipe on the left blower. Then, with his left hand, he began wiping the right blower when his hand made contact with the rotating blades and shredded his fingers. After being taken to the hospital in Lubbock, he underwent surgery and his index finger and most of his middle, ring, and little, fingers were amputated.
Hector filed suit against Excel on June 23, 1997, for personal injuries sustained in the accident.2 Among other grounds of negligence, Hector alleged that Excel (1) failed to adequately train him for the tasks assigned; (2) failed to adequately train his co-workers because Barrera instructed him to get on the drip pan and wipe oil from the blowers; (3) failed to maintain or repair equipment and furnished unsafe, defective, and unguarded blowers; and (4) failed to warn Hector of unreasonable dangers and risks of harm because of inadequate training. Hector also sought exemplary damages alleging that Excel was guilty of willful, intentional, wanton, reckless and malicious wrongdoing.3 After eight days of testimony and evidence in phase one of a bifurcated trial,4 among other instructions, the trial court instructed the jury that although Excel had a duty to use ordinary care in providing a safe work place, it was not an insurer of its employees’ safety at work. After finding that Excel’s negligence proximately caused Hector’s injury, the jury made the following awards to Hector:
The jury also awarded Hector’s wife, Angela, $1,000 for loss of household services in the past; $3,000 for past loss consortium, and $10,000 for future loss of consortium. Hector and Angela’s three daughters were each awarded $5,000 for past loss of parental consortium and $15,000 for future loss or parental consortium. Hector’s claim for exemplary damages was submitted to the jury as follows:5
Do you find by clear and convincing evidence that the harm to Hector Reyes resulted from malice?
“Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegation sought to be established.
*4 “Malice” means:
a) a specific intent by Excel to cause substantial injury to Hector Reyes; or
b) an act or omission by Excel
i) which, when viewed objectively from the standpoint of Excel at the time of the occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
ii) of which Excel had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.
Following an affirmative finding on the malice issue, the jury heard evidence in the second phase of the bifurcated trial6 and awarded Hector $1,000,000 exemplary damages. Following a hearing on Excel’s Motion to Modify, to Set Aside Certain Jury Findings, and for Judgment Notwithstanding the Verdict, the trial court ordered that the jury verdict for future loss of earning capacity be reduced from $750,000 to $535,331. The trial court signed a judgment that Hector recover $879,312.25 actual damages, and $1,000,000 exemplary damages, that Angela Reyes recover $14,000, and that each daughter recover $20,000, plus prejudgment interest.
Standards of Review
When both “no evidence” and “insufficient evidence” issues are raised, we are required to rule on the “no evidence” contention first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In our examination of a no evidence contention, we consider all the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). In evaluating legal sufficiency, we are required to determine whether the proffered evidence as a whole rises to the level that would enable reasonable and fair-minded people to differ in their conclusions. Id; Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994).
If we find some evidence to support the jury’s verdict, we must then determine whether the evidence is factually sufficient. In reviewing a factual insufficiency challenge, we must consider and weigh all the evidence in support of the jury’s award and set it aside only if it is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (1986); Williams v. Gaines, 943 S.W.2d 185, 191 (Tex.App.-Amarillo 1997, writ denied). As an appellate court we cannot retry the case or otherwise substitute our judgment for that of the trier of fact. Maritime Overseas Corp. v. Ellis, 971 S.W .2d 402, 407 (Tex.1998), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998); see also Mohnke v. Greenwood, 915 S .W.2d 585, 589 (Tex.App.-Houston [14th Dist.] 1996, no writ).
Twenty-one witnesses testified over the course of an eight-day trial, and over 150 exhibits were introduced. Thus, in reviewing the evidence we must be mindful that the jury is the exclusive judge of the credibility of the witnesses and weight given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The jury may believe one witness and disbelieve another and resolves inconsistencies in any testimony. McGalliard. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).
Common Law Negligence
*5 By its first issue, Excel contends that Hector’s injury was not foreseeable and that Hector presented no, or alternatively, factually insufficient evidence of Excel’s negligence. We disagree. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission, and the danger of injury is foreseeable if its general character might reasonably have been anticipated. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995). Also, the question of foreseeability involves a practical inquiry based on common experience applied to human conduct. Id. Foreseeability does not require that the exact injury or accident result. See Lofton v. Texas Brine Corp., 777 S.W.2d 384, 387 (Tex.1989). Only a general danger need be foreseeable, not the exact sequence of events that produced the harm. Id. The trial court instructed the jury as follows:
“Proximate cause” means that cause which, in a natural and continuous sequence produces an event, and without which cause such event would have not occurred. In order to be a 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….
(Emphasis added).
By its argument, Excel does not deny that Hector’s injury was a work-related injury and does not discuss or distinguish the evidence, except to conclude that no person could have foreseen that Hector would have placed his hand at least six to eight inches into the blower. However, this contention is not controlling because it constitutes an argument that Hector’s alleged act of contributory negligence, which is not a defense in the underlying action, establishes the absence of foreseeability. See Tex.Lab.Code Ann. § 406.033 (Vernon 1996).
Further, notwithstanding the numerous training documents signed by Hector, Excel candidly admits in its reply brief that Hector did not receive any training regarding the blowers in the trolley room. While Gonzalez, Hector’s supervisor, was testifying, an exhibit was introduced entitled “Management Responsibilities” detailing a supervisor’s responsibility regarding his department. Excel requires that supervisors “be responsible for ensuring the training of all team members for specific job lock-out tasks on equipment in their area.” Gonzalez acknowledged that it was his responsibility as a supervisor to familiarize Hector with equipment in the trolley room, but admitted he did not do so. In addition, Hector, as a probationary employee, had observed Barrera, an experienced trolley room worker, stand on the drip pan and wipe the pipes without injury. He had also been instructed by Barrera to wipe excess oil from the pipes. Additionally, Dr. Edward Anderson, a mechanical engineer, testified that given the engineering design of the blower system, it was foreseeable that someone was going to have to access the unguarded blowers to wipe excess oil. Thus, considering the evidence and reasonable inferences therefrom in the light most favorable to the jury’s finding and disregarding all evidence to the contrary, we conclude there was legally sufficient evidence to support the finding of foreseeability.
*6 Turning to the factual sufficiency challenge, Excel does not (1) deny that it had a problem with residue oil on the trollies; (2) deny that it expected the trollies to be oil-free when they were sent from the trolley room to the production floor; (3) deny that Hector was expected to wipe the pipes and that access to the blowers was not available without climbing on the drip pan and reaching up the discharge of the pipes; (4) deny that Barrera told Hector to “every now and then wipe the pipes with a rag;” (5) contend that Hector was trained how to safely wipe the oil from the pipes; (6) assert that Hector did not observe Barrera wiping the pipes in a similar manner while standing on the drip pan; and (7) contend that the blower was guarded as required by its own safety code.
Sam McIntosh, a supervisor, testified that because he is extremely busy, he is unable to train new employees on all equipment. Likewise, Excel’s safety director, Rick Clayton, also testified that it is virtually impossible to train new employees on all equipment, and he assumes new employees will ask for guidance when confronted with an unfamiliar situation or “have the common sense to know to shut that power off, lock it out, disengage it and unplug it.” Although Barrera did not testify, by deposition or otherwise, Clayton read a portion of Barrera’s unsworn statement taken by Clayton after Hector’s injury. Barrera claimed that whenever he wiped the oil from the pipes, he disconnected the blowers and unplugged them. According to Clayton’s report, Barrera said he had shown Hector how to disconnect the blowers. Several defense witnesses testified that plugs to the blowers were visible and easily accessible. Hector, however, testified that Barrera had not shown him how to de-energize the blowers, and that he was 100% sure that at the time of the accident, there were no plugs or cords visible near the blowers.
According to Hector, during the four or five days he worked with Pacheco on the day shift, the blowers were never discussed and there was no oil residue problem because a second employee worked during that shift. He also testified that after he was transferred to the night shift to work with Barrera, at first, he was unaware of any blowers because he used a compressed air hose to dry the trollies. After the oil problem worsened, he observed Barrera and two other employees stand on the drip pan to wipe excess oil from the blower pipes. He had also observed at different times, his supervisor, Gonzalez, a maintenance leader, Carlos Saenz, and another maintenance employee, Martin Ruiz, standing on the drip pan. According to Hector, after he was directed to wipe the pipes when oil residue accumulated, no one ever informed him that he should not stand on the drip pan, and a small step ladder was located near the drip pan that employees used to climb on the drip pan. Hector also claimed he was certain that Barrera and the other two employees did not lock out or tag out any equipment when they were dispatched to investigate the source of the oil because if they had, it would have shut him down.
*7 Although the jury was presented with conflicting testimony regarding Hector’s training on the blowers, whether plugs to the blowers were visible, and other matters, the jury, as the trier of fact, was free to resolve the inconsistencies. We conclude that the jury’s finding of foreseeability is not so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Excel’s first issue is overruled.
Exemplary Damages7
By its second issue, Excel asks “whether a party can be found to have acted with malice when the activity in which the Plaintiff was engaged did not present the likelihood of serious injury, and the evidence presented did not establish that the Defendant simply did not care whether the plaintiff was injured.”8 Although Excel does not present this issue in accordance with the trial court’s instruction on malice or section 41.001(7) of the Code defining malice, we will consider the issue as challenging the element of probability, and the element of conscious indifference. By focusing on Hector’s activity rather than its act or omission, Excel misplaces the proper concern for review of this issue. However, we will consider that the issue presents the following contentions: (1) the probability (i.e., likelihood) of harm to Hector resulting from any act or omission by Excel, and (2) whether Excel proceeded with conscious indifference to the rights, safety, or welfare of others. For purposes of our analysis, we note that although an award for exemplary damages must be based on clear and convincing evidence, (i.e., that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established), that degree of proof does not alter the rules generally applicable when appellate courts review the sufficiency of the jury’s findings. In Re M.D.S., 1 S.W.3d 190, 197 (Tex.App.-Amarillo 1999, no pet.). Further, pursuant to section 41.013(a) of the Code, we are cognizant of the requirement that when upholding or disturbing an award for exemplary damages, we must address the evidence or lack of evidence with specificity as it relates to the liability for or amount of damages. Thus, in our analysis, we will detail the evidence as presented by both lay and expert witnesses.
As Hector’s employer, Excel was charged with the non-delegable duty to provide rules and regulations for Hector’s safety, to furnish him with safe machinery and instrumentalities, and to provide a safe place to work. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex.1981). This duty included the responsibility for the failure to provide and implement a meaningful safety program for its employees. Id. at 924. Although Excel’s overall safety program was considered adequate by experts, Excel acknowledged that Hector had not been trained on the blowers and Excel’s own expert, Dr. Jerry Ramsey, an industrial engineer, testified that Hector’s on-the-job training was “poor,” and that standing on the drip pan was inappropriate. Gonzalez acknowledged that as Hector’s supervisor, it was his responsibility to train Hector on the equipment in the trolley room, but that he did not do so. McIntosh, another supervisor, and Clayton, the safety director, both testified that it is not possible to train new employees on all equipment.
*8 As explained above, Hector was moved through orientation expeditiously and was required to sign many documents asserting he had been trained in the equipment mentioned therein. Hector observed various supervisors and other employees stand on the drip pan and wipe excess oil from the pipes of the blowers. He testified that he was never told not to stand on the drip pan nor was he trained on how to lock out the blowers before wiping oil from the pipes. In fact, according to Hector, Barrera only instructed him on how to shut everything off at the end of his shift by flipping off unlabeled breakers contained in a small panel box.
Doctor Edward Anderson testified to the three “E’s” in safety engineering, to wit: (1) education, (2) engineering, and (3) enforcement, and evaluated Excel’s performance in each category. After reviewing depositions and other materials, he concluded that Excel’s education had been carried out “reasonably well,” but that Excel had failed in the engineering and enforcement categories. In the engineering category, his opinion was that Excel failed to provide guards on the blowers knowing it was possible for someone to put their fingers inside and get hurt. Although Excel’s witnesses repeatedly testified that the blowers were guarded by position, the evidence established that the blowers were accessible by standing on the drip pan. Doctor Anderson also found Excel deficient in the enforcement category by condoning actions that are against company policy (i.e., supervisors and other employees were not disciplined for standing on the drip pan). In his opinion, by not providing guards on blowers that were accessible, Excel failed to provide a safe working environment and made a conscious decision to violate its own safety code. He also concluded that Gonzalez was willfully irresponsible in failing to train Hector on specific lock-out tasks on equipment in the trolley room, creating an extreme risk of harm.
Doctor Anderson’s opinion was echoed by the testimony of Dr. Waymon Johnston, a safety engineer. He testified that Excel provided an unsafe condition by leaving the blowers unguarded knowing that employees would periodically need access to them to wipe the excess oil. By violating its own safety policy that fans be guarded, Dr. Johnston concluded that Excel demonstrated a conscious disregard of an extreme risk of harm.
Based on the record evidence, we conclude that Excel’s expectation that the excess oil be wiped by hand from the unguarded blowers together with Barrera’s instructions to Hector that he stand on the drip pan and wipe off the excess oil by hand, as he had observed Barrera and others do, constitutes legally sufficient evidence to satisfy the probability element of malice. We also conclude the following, to wit: (1) considering Excel’s duties as an employer, (2) and that Excel had experienced problems with excess oil for approximately one year without making any design changes, (3) and that Hector was expected to clean excess oil, (4) by hand, (5) from unguarded blowers, (6) while standing on the drip pan, (7) when he was the only employee in the trolley room during his shift, and (8) who had not been trained on the blowers, constituted legally sufficient evidence to satisfy the conscious indifference element of malice. Further, the trial court instructed the jury that:
*9 A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts proved.
Based on this instruction, the jury could have concluded that the probability of an accident was present and that although Excel was aware of the potential harm, it consciously decided to proceed with its operations in disregard of the probability of injury.
In our analysis, we do not overlook the cases9 relied on by Excel. However, as analyzed herein, they are not controlling. We first note that in each of the five cases cited by Excel, the accident or event giving rise to the action occurred prior to September 1, 1995, the effective date of the current version of Chapter 41 of the Code governing exemplary damages. Second, Hector and Excel shared an employer-employee relationship that obligated Excel to provide a safe working environment and furnish safe equipment for its employees. In Andrade, Sanchez, and Ellender, no employer-employee relationship was present. In Andrade, the plaintiff was an employee of an asbestos removal service that had been hired by the defendant’s predecessor in interest. Sanchez decided the applicability of comparative responsibility in a products liability case involving a consumer. Ellender involved an independent contractor who periodically worked in a Mobil plant.
Although Ung and Moriel involved employer-employee relationships, they also are not controlling. In Ung, the plaintiff, an employee of a state contractor, was working as a member of a cleaning crew on the shoulder of an interstate when a truck carrying a trailer hit a pothole that caused the trailer to separate and strike the plaintiff. Ung’s employer, however, did not create the pothole nor have exclusive control over the highway where the pothole was located. Here, however, Excel was in complete control of the trolley room and its equipment. Moriel clarified the standards governing the imposition of punitive damages in the context of a bad faith insurance claim after settlement of a worker’s compensation claim, and not from a work-related injury.
Although not presented in its issue, Excel concludes its argument by contending that the evidence was legally insufficient to support the amount of exemplary damages awarded. First, it should be noted that section 41.010(a) and (b) of the Code, provides that the decision to award exemplary damages and the amount thereof is within the discretion of the finder of fact. Notwithstanding that provision, Excel does not present an issue contending abuse of discretion. Moreover, by its supplemental charge, the court instructed the jury as follows:
In determining the amount of exemplary damages you should consider evidence, if any, relating to:
*10 a. The nature of the wrong;
b. The character of the conduct involved;
c. The degree of culpability of the wrongdoers;
d. The situation and sensibilities of the parties concerned;
e. The extent to which such conduct offends a public sense of justice and propriety;
f. The net worth of Excel. You are instructed that you shall not consider the net worth or wealth of any other corporation other than Excel.
At trial, documentary evidence of Excel’s net worth was received showing a net worth of $368,530,485. Considering (1) that factors (a) through (e) are subjective elements; (2) the circumstantial evidence charge; (3) the statutory discretion vested in the trier of fact; and (4) the evidence and reasonable inferences therefrom in the light most favorable to the jury’s verdict, we find the evidence was legally sufficient to support the jury’s award of $1,000,000 in exemplary damages. Excel’s second issue is overruled.
By issue three, Excel contends the trial court erred in not submitting the issue of comparative responsibility to the jury. However, by its reply brief, following the decision in Kroger Co. v. Keng, 23 S.W.2d 347, 352-53 (Tex.2000), Excel has withdrawn this contention and we need not address it.
By its fourth issue, Excel contends the trial court erred in overruling its objection to evidence of Hector’s termination alleging the evidence was irrelevant. Relying on Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex.1998), in which the Court held that a former employee of a non-subscriber under the workers’ compensation laws does not have a cause of action for wrongful termination, Excel complains that the evidence was inadmissible. We disagree.
On direct examination by Excel’s counsel, Dave Stafford, Excel’s human resource manager, testified as follows:
Mr. Craig: Right before we broke for the afternoon break I was showing you what has been marked as Defendant’s Exhibit 63. Could you identify that for us, please, sir?
Mr. Stafford: It is a memo or supplemental document prepared by Mr. Castaneda on May 20th, 1998, immediately prior to Hector’s termination.
Mr. Craig: And I believe that actually goes with and is a memo that is part of-it wasn’t introduced with it, but I believe it was part of Plaintiff’s Exhibit 26, which has to do with the ultimate termination of Mr. Reyes; is that correct?
Mr. Stafford: I believe this was actually attached to a document placing Mr. Reyes on indefinite suspension prior to his termination.
* * *
Mr. Craig: Was this memo prepared by J.D. [Castaneda] and given to you?
Mr. Stafford: Yes, sir, it was given to me, attached to this Personnel Action Record placing him on indefinite suspension.
* * *
Mr. Craig: Was, in fact, he terminated?
Mr. Stafford: Yes, I believe on the 26th we terminated his employment.
Mr. Craig: And what was the reason for the termination?
*11 Mr. Stafford: Just continual poor performance.
(Emphasis added).
Excel now complains of testimony elicited by Hector’s counsel, upon his subsequent examination of Mr. Stafford, concerning the facts surrounding Hector’s termination. The relevant portion of that testimony is as follows:
Mr. Glasheen: Okay. Now, you’re aware, aren’t you, sir, that in March of 1998 there was a change in the law?
Mr. Stafford: Which law?
Mr. Glasheen: Texas law.
Mr. Stafford: Well, Texas has a lot of laws.
Mr. Glasheen: All right. Let me try to be more clear…. You are aware that prior to March of 1998, employees had a right, under the law, to be free from retaliation for work injuries and that if they did suffer retaliation they would have a claim and could make a claim for damages for that? And-
Mr. Stafford: Yeah. I don’t know when-I knew that’s been a law, but I don’t know when that law changed specifically.
* * *
Mr. Glasheen: Okay. And, basically, the Workers’ Compensation Law says that you can’t retaliate against an employee-
Mr. Craig: Your Honor, I’m going to object at this point. I think this-what we’re going into now is neither relevant nor material to any issue that the jury is going to have to answer in the personal injury aspect of this case.
The Court: Overruled.
Mr. Glasheen: Okay. You understand that the Workers’ Compensation Law prohibits retaliation for people that make an injury claim, right?
Mr. Stafford: I was aware of that, yes, sir.
* * *
Mr. Glasheen: Okay. So, sometime in the summer of ′98, about the time Mr. Reyes was terminated, you found out that the Supreme Court says that it’s not illegal to retaliate against injured workers for non-subscribers?
Mr. Stafford: My understanding was the Supreme Court did not say that. They said the law didn’t apply to non-subscribers.
Mr. Glasheen: And that leaves them without any legal protection; right?
Mr. Craig: Your Honor, again, I think we’re going outside the realm, plus the witness, I don’t think, is a lawyer, and it’s outside his area of expertise.
The Court: If he knows of his own personal knowledge, I will allow him to answer the question.
Mr. Stafford: Could you ask the question again please?
Mr. Glasheen: In other words, you became aware sometime in June of 1998, about the time that Mr. Reyes was terminated, that the Supreme Court had said that if you retaliate against your injured employees for making claims, that there is nothing they can do about it, they have no legal recourse?
Mr. Stafford: I believe-I believe it was after the termination of Mr. Reyes that I became aware of that decision.
Mr. Glasheen: Okay.
Mr. Stafford: Because I remember thinking that, you know, given his performance history and review of that-that history, that even were we sued for that action, that we could sustain our position.
*12 Mr. Glasheen: And Mr. Reyes had a lawsuit pending since sometime in the summer of ′97?
Mr. Stafford: Again, I don’t know when that lawsuit was filed.
Mr. Glasheen: But you knew that a lawsuit was pending at the time you-
Mr. Stafford: I knew there was a lawsuit, yes, sir.
Mr. Glasheen: Okay. At the time you terminated him?
Mr. Stafford: Yes, sir.
(Emphasis added).
It has long been the law of this State that a party on appeal may not complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character. McInnes v. Yamaha Motor Corp., U .S.A., 673 S.W.2d 185, 188 (Tex.1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985). In McInnes, the party objecting to the testimony actually introduced it or “opened the door.” Here, Excel “opened the door” by introducing evidence concerning Hector’s termination on direct examination. Excel acknowledged both during trial and in its brief that Hector’s employment was terminated because of unsatisfactory work. Therefore, having “opened the door,” Hector’s counsel was free to inquire into the facts surrounding his termination, which included the human resource manager’s knowledge of workers’ compensation law in Texas and how that body of law affected the rights of both Hector and Excel.
Moreover, Texas Rule of Evidence 611(b) states:
Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.
The allowed scope of cross-examination is broad and wide-ranging, and extends to any matter relevant to the issues. Hogue v. Kroger Store No. 107, 875 S.W.2d 477, 480 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Relevancy permits inquiry into the witness’ interest, bias, motives, inclinations, and prejudices. Id. Further, the decision whether to admit evidence rests within the sound discretion of the trial court. See National Liability and Fire Ins. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); Hurr v. City of Mesquite, Allen, 15 S.W.3d 525, 527 (Tex.2000); Hurr v. City of Mesquite, 893 S.W.2d 227, 234 (Tex.App.-Amarillo 1995, writ denied). An abuse of discretion occurs where the trial court acts without reference to any guiding rules or principles, or in other words, whether the act was arbitrary or unreasonable. See Goode v.. Allen, 15 S.W.3d 525, 527 (Tex.2000); Hurr v. City of Mesquite, Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Because we find the trial court did not abuse its discretion in overruling Excel’s objection to evidence of Hector’s termination, Excel’s fourth issue is overruled.
By its fifth issue, Excel questions the sufficiency of the evidence to support the damages awarded by the jury. Because Excel’s argument is limited to the awards for (1) future mental pain and anguish ($75,000); (2) past loss of earning capacity ($35,000); (3) future loss of earning capacity ($535,331); and (4) loss of parental consortium ($20,000 for each daughter), we will limit our review to these specific awards. See Howell v. Murray Mortg. Co., 890 S.W.2d 78, 81 (Tex.App.-Amarillo 1994, writ denied) (holding that failing to brief a point of error and include a discussion of the facts and authorities relied upon waives that point); see also Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.).
Future Mental Pain and Anguish
*13 As Hector points out in his brief, Excel improperly challenges an award for “future mental pain and anguish,” which was not submitted to the jury. Instead, the jury was asked to determine the amount of damages for “future physical pain and mental anguish.” However, in the interests of justice we will review Excel’s contention as a challenge to the jury’s award of $75,000 for future physical pain and mental anguish. Relying on Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607 (Tex.1996) and Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995), Excel contends that there was “absolutely no evidence” or, alternatively, “factually insufficient evidence” to support the jury’s award. However, we find these authorities are not controlling. Absent a physical manifestation requirement, these cases address the need for direct evidence of the nature, duration, and severity of the mental anguish, thus establishing a substantial disruption in a plaintiff’s daily routine.
It is undisputed that Hector suffered a permanent and disabling physical injury. Doctor Murray Strauss, a plastic and reconstructive surgeon, testified that Hector would suffer psychological problems from the trauma of the amputation of his fingers making it difficult to move on from the injury. He also testified that pain killers, such as morphine and demerol, would “never fully take away the pain. They narcotize. They make the patient very somnolent, but they don’t take away the pain.” Doctor Joseph Sheppard, an orthopedic surgeon, treated Hector after his wound became infected and required a second surgery. He testified that Hector would suffer from cold intolerance due to the traumatized nerves in the amputated area.
Betty Wintroath, a registered nurse experienced with amputees, testified that Hector will suffer pain from his injury that medications may dull, but cannot prevent. She also explained that it is common for amputees to suffer from “phantom pain” that causes impulses from the brain to travel to nerve endings and down to extremities, which are no longer there. Thus, because an appendage is gone, “the nerves are beating against the end of the stump trying to get out.” Hector will also suffer from neuroma, which is the buildup of nerve endings in the part of the body that has been amputated. This causes that particular area to be more sensitive due to a buildup of nerve endings. For example, according to Wintroath, simply brushing up against a table or object can cause an amputee a great deal of pain. Wintroath also explained how an amputee can suffer from depression, frustration, embarrassment, anxiety, and self-esteem problems all related to the disfigurement.
Doctor Beth Shapiro, a licensed therapist who assessed and treated Hector for post-traumatic stress disorder, testified that he was presenting extreme signs of anxiety, depression, suicidal ideas, flashbacks of the accident, difficulty in concentrating, and sleep disturbances. Doctor Shapiro referred Hector to a psychiatrist who confirmed her diagnosis, and prescribed various medications to help relieve nervousness and improve sleep. Based on the foregoing expert testimony, we cannot say that the evidence is legally and factually insufficient to support the jury’s award of $75,000.
Past Loss of Earning Capacity
*14 Without citation to any legal authorities, see Tex.R.App.P. 38.1(h), Excel challenges the legal and factual sufficiency of the evidence to support the jury’s award of $35,000 for past loss of earning capacity. Although it is undisputed that Hector continued to work for Excel until May 1998, when he was terminated, the proper measure of damages for loss of earning capacity is the diminished earning power or capacity of the plaintiff and not his actual lost earnings. Dallas Railway & Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550, 552 (1948); Missouri-Kansas-Texas R. Co. v. Alvarez, 703 S.W.2d 367, 372 (Tex.App.-Austin 1986, writ ref’d n.r.e.). Furthermore, the amount of damages resulting from loss of earning capacity is left to the sound discretion of the trier of fact. Southwestern Bell Telephone v. Wilson, 768 S.W.2d 755, 763 (Tex.App.-Corpus Christi 1988, writ denied).
Economist Dr. Barry Duman testified that through March 1999, he calculated Hector’s past wages to be $30,604. Thus, because the trial did not begin until June 1999, the jury was within its discretion to enhance Dr. Duman’s figure accordingly. We cannot say that the evidence is legally or factually insufficient to support the jury’s award of $35,000 for past loss of earning capacity.
Future Earning Capacity
The jury found that Hector’s damages for loss of future earning capacity was $750,000. Excel then filed its motion to modify and to set aside certain jury findings and for judgment notwithstanding the verdict. Among other matters, Excel challenged the award of $750,000 to Hector for loss of future earning capacity, asserting in part:
Since there was no and/or legally insufficient evidence for the jury’s finding that Plaintiff suffered $750,000.00 in future loss of earning capacity damages, this Motion should be granted and the jury’s answer to this question should be set aside. In the alternative, the court should award Plaintiff no more than $530,000.00 in future loss of earning capacity as this was the highest amount acknowledged by Plaintiff’s economic expert using the discount factor.
Following presentation of the post-trial motions, on September 24, 1999, the trial court signed its nunc pro tunc judgment by which, among other things, the trial court granted Excel’s motion to disregard the jury finding of $750,000 for loss of future earning capacity and in accordance with Excel’s motion, rendered judgment in the amount of $535,331 for loss of future earning capacity. Before we consider Excel’s contention, we must first determine if the challenge to this award is properly before this Court.
By its issue, Excel questions the sufficiency of the evidence to support the damages awarded by the jury. However, because the trial court partially granted Excel’s motion for judgment notwithstanding the jury verdict, reducing the jury’s award from $750,000 to $535,331, the issue does not properly challenge the action of the trial court in partially granting Excel’s motion.
*15 Moreover, in Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942), the Court held:
It is an elementary principle supported by many authorities that a litigant cannot ask something of a court and then complain that the court committed error in giving it to him. The rule, grounded in even justice and dictated by common sense, is that he is estopped.
The Court reiterated the rule in General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993) cert. dism’d, 510 U.S. 985, 114 S.Ct. 490, 126 L.Ed.2d 440 (1993), that parties may not invite error by requesting an issue and then objecting to its submission. See also Bell v. Showa Denko K.K., 899 S.W.2d 749, 760 (Tex.App.-Amarillo 1995, writ denied). As requested by Excel, the trial court (1) set aside the jury’s award of $750,000, and (2) awarded Hector only $535,331 in damages for loss of future earning capacity. Thus, even if the question was properly before us, we would not consider Excel’s challenge to that award.
Loss of Parental Consortium
In Reagan v. Vaughn, 804 S.W.2d 463 (Tex.1990), the Court recognized a cause of action for loss of parental consortium acknowledging that the “loss of a parent’s love, care, companionship, and guidance can severely impact a child’s development and have a major influence on a child’s welfare and personality throughout life.” Id. at 466. A serious, permanent, and disabling injury to a parent has the potential to seriously deprive a child of the joy of shared experiences. Id. The evidence is undisputed that Hector’s hand injury was serious, permanent, and disabling.
At the time of trial, Hector’s daughters were six and four years old and 20 months old. Hector’s wife, Angela, testified that she would get home from work everyday around noon and that Hector would leave for his shift at Excel around 2:00 p.m. Thus, the children had the benefit of having their parents care for them without the need for a babysitter. Hector was the primary caregiver during the early morning hours. He would help them get dressed every morning and prepare them breakfast. Angela referred to Hector as “a perfect pancake maker,” and commented that the girls preferred that Hector, and not her, prepare their breakfast. Hector testified that he could not carry his daughters much after the accident. He also explained that his daughters preferred for him to braid their hair and fix their ponytails because he was very gentle, and after the accident, he was unable to fix their hair. Angela also testified that after his injury it became very difficult to button clothes and tie shoes. Hector’s mother testified that his daughters would argue over who would hold their Daddy’s good hand and who would hold his “little hand.” Based on the foregoing, we cannot say that the evidence is insufficient to support an award of $20,000 to each daughter for loss of parental consortium. Excel’s fifth issue is overruled.
*16 Accordingly, the judgment of the trial court is affirmed.
Footnotes |
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1 |
Tex.Lab.Code Ann. § 406.002 (Vernon 1996). |
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2 |
By his third amended petition, Hector’s wife and three young daughters were added as parties to the suit. |
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3 |
Although Hector sustained his injury after September 1, 1995, neither the trial pleadings nor the appellate briefs make any reference to Tex.Civ.Prac. & Rem.Code Ann. §§ 41.001-41.013 (Vernon 1997 & Supp.2000), entitled Exemplary Damages, amended in 1995 and effective September 1, 1995. See Act of April 11, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex.Gen.Laws 108. |
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4 |
See Tex.Civ.Prac, & Rem.Code Ann. § 41.009(c) (Vernon 1997).
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5 |
Tex.Civ.Prac. & Rem.Code Ann. § 41.003(b) (Vernon 1997) provides that the claimant must prove by clear and convincing evidence the elements of exemplary damages. Although this is an intermediate standard and the claimant’s proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. State v. Addington, 588 S.W.2d 569, 570 (Tex.1979). |
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6 |
See Tex.Civ.Prac. & Rem.Code Ann. § 41.009(d) (Vernon 1997). |
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7 |
Unless otherwise designated, all references to the Code are to the Texas Civil Practice and Remedies Code Annotated (Vernon 1997 & Supp.2000). |
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8 |
We emphasize portions of the issue to assist in our comparison with the malice issue as submitted to the jury and as set forth in the background portion of this opinion, and section 41.001(7) of the Code. |
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9 |
Louisiana Pacific Corp. v. Andrade, 19 S.W.3d 245 (Tex.1999); General Motors Corp. v. Sanchez, 997 S.W.2d 584 (Tex .1999); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex.1998); Universal Services Co., Inc. v. Ung, 904 S.W.2d 638 (Tex.1995); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (1994). |
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