Court of Appeals of Texas,
San Antonio.
Jesse F. HERNANDEZ, Appellant,
v.
METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD. d/b/a San Antonio Community Hospital, Appellee.
No. 04-01-00094-CV.
|
March 20, 2002.
From the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 99-CI-15829; Michael P. Peden, Judge Presiding.
Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
Opinion
Opinion by: SANDEE BRYAN MARION, Justice.
*1 This is an appeal from a directed verdict. Appellant, Jesse Hernandez, was injured during the course and scope of his employment by appellee, Methodist Healthcare System of San Antonio, Ltd. d/b/a San Antonio Community Hospital (“Methodist”). Methodist is a non-subscriber to the Texas Workers’ Compensation Act. At the close of Hernandez’s case-in-chief, Methodist moved for and was granted a directed verdict. On appeal, Hernandez asserts the trial court erred in excluding the testimony of one of his witnesses, granting the directed verdict, and characterizing his claim as a premises defect claim only. Finding no error in the trial court’s rulings, we affirm.
BACKGROUND
On November 17, 1997, Hernandez was backing his way into Methodist’s elevator number 3 with a patient when the door rapidly closed on him. Although he was hit by the door, the door did not re-open immediately. As a result of being hit by the door, Hernandez suffered injuries to his neck, shoulders, and head. After he took the patient to her room, Hernandez reported the incident to his supervisor. He later sued Methodist, alleging Methodist was negligent by various acts and omissions.
EXCLUSION OF EVIDENCE
Hernandez asserts the trial court erred in excluding the testimony of one of his witnesses, John Fernandez, because Fernandez’s testimony would have raised a fact issue on a material issue at trial. Fernandez would have testified that the doors of the same elevator that closed on Hernandez also closed on him on three different occasions. The last time the doors closed on him, he was injured. Fernandez reported two of the incidents. All incidents concerning Fernandez happened in either 1994 or 1995. Hernandez was injured in 1997.
We may reverse a trial court’s judgment based on an error in the admission or exclusion of a witness’s testimony only if we conclude that (1) the trial court did in fact commit error and (2) the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); McEwen v. Wal Mart Stores, Inc., 975 S.W.2d 25, 27 (Tex.App.-San Antonio 1998, pet. denied). In determining error, we review the trial court’s admission or exclusion of evidence for an abuse of discretion. McEwen, 975 S.W.2d at 27. A trial court abuses its discretion only if it acts unreasonably or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).
Similar events are admissible if the “earlier accidents occurred under reasonably similar but not necessarily identical circumstances .” Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex.1978). Evidence of similar events is admissible if the plaintiff first establishes (1) a predicate of similar or reasonably similar conditions, (2) connection of the conditions in some special way, or (3) that the incidents occurred by means of the same instrumentality. McEwen, 975 S.W.2d at 29.
*2 The evidence at trial revealed that a span of two or three years separated Fernandez’s encounter with elevator number 3 and Hernandez’s encounter with the same elevator; a retracting edge was placed on elevator number 3 after the incidents involving Fernandez; and the contractors who maintained the elevators changed in the interim. Based on this evidence, we conclude that the trial court did not abuse its discretion in excluding Fernandez’s testimony.
DIRECTED VERDICT
At the close of Hernandez’s case-in-chief, Methodist moved for a directed verdict on the grounds that this was a premises defect case and there was no evidence to support the submission of such a claim to the jury. The trial court granted the motion.
On appeal, Hernandez asserts the trial court erred in granting the directed verdict based on its determination that his only claim was for injuries arising from a premise defect. He characterizes his claim as both a premises defect claim and a negligence claim. Hernandez contends the directed verdict was improper because there was sufficient probative evidence to raise a fact issue under either cause of action. We need not determine whether the case should have been submitted on only a premises defect claim or on both a general negligence claim and a premises defect claim because a directed verdict on both claims was proper.
Standard of Review
When reviewing the granting of a directed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). We consider all the evidence in a light most favorable to the party against whom the verdict was directed and disregard all contrary evidence and inferences. Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex.1994). If there is any conflicting evidence of probative value on any theory of recovery, a directed verdict is improper and the case must be reversed and remanded for jury determination of that issue. Id.
Negligence
In order to recover on a negligence claim, a plaintiff must establish (1) a legal duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) damages proximately resulting from the breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998). Proximate causation embraces two concepts: cause in fact and foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition that made the injury possible. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The evidence must show that such negligence was the proximate, and not the remote cause of the resulting injuries, justifying the conclusion that such injury was the natural and probable result of the defendant’s negligence. Doe, 907 S.W.2d at 477. Even if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiff’s injuries simply may be too attenuated to constitute legal cause. Union Pump, 898 S.W.2d at 775.
*3 The test for foreseeability is what a person should, under the circumstances, reasonably anticipate as the consequences of one’s action or failure to act. Allright San Antonio Parking, Inc. v. Kendrick, 981 S.W.2d 250, 252 (Tex.App.-San Antonio 1998, no pet.); Rodriguez v. Spencer, 902 S.W.2d 37, 41 (Tex.App.-Houston [1st Dist.] 1995, no writ). Foreseeability does not require the actor to anticipate the specific incident or precise manner of injury, but only requires that he reasonably anticipate the general character of the injury. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992).
Hernandez asserts that Methodist was negligent because it failed to do the following: provide and maintain a reasonably safe working environment for its employees; properly inspect, maintain, service and repair the elevator; furnish suitable machinery and appliances for use by its employees; initiate or maintain policies or procedures whereby employees report dangerous conditions; timely and properly respond to complaints about the dangerous condition of the elevator; and warn employees about the danger posed by hospital elevators. Hernandez also complains that Methodist was negligent in hiring an elevator maintenance company that it knew or should have known was incompetent, poorly trained or unavailable to maintain the elevator in proper working order.
Hernandez called four witnesses to testify about the elevators. Roy Luevano, Hernandez’s supervisor, testified that the only problem he observed with any of the elevators was that the doors might close, then open, then close, then open. He said the maintenance department was aware of the problem. Ian Shawcross, Methodist’s Director of Facilities Maintenance, said there were typically always work orders on the elevators. Prior to Hernandez’s accident on November 17, 1997, there were seventeen “call-ins” to the elevator company about the different elevators. Only one of Shawcross’ records, from 1995 through November 17, 1997, revealed a problem with the doors on elevator number 3: a March 1997 report indicating that elevator number 3’s doors would not close. Jim Ashbaugh, a Dover Elevator Company mechanic, testified that the electronic edge on elevator number 3 was replaced in May 1997. In 1997, he was aware that number 3’s doors would remain open before the edge was replaced. Wayne Elkins, a Dover service technician, stated that in May 1997 he was called to Methodist because the doors on elevator number 3 would not close.
There is no evidence that Methodist should have reasonably anticipated that the doors to elevator number 3 could cause harm to an individual entering or leaving the elevator. Therefore, the trial court did not err in granting the directed verdict because there is no probative and conflicting evidence that Methodist’s alleged negligence was the proximate cause of Hernandez’s injuries.
Premises Defect
The elements of a premises defect cause of action are: (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Keetch, 845 S.W.2d at 264; Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983).
*4 We hold that the testimony provided by Hernandez’s witnesses did not raise a fact issue on whether Methodist had actual or constructive knowledge that the doors on elevator number 3 closed abruptly or that the doors on elevator number 3 posed an unreasonable risk of harm. Therefore, the trial court did not err in granting the directed verdict on Hernandez’s premises defect cause of action.
CONCLUSION
We affirm the trial court’s judgment.